Parchment Winter 2021

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D UB LIN SOLICITORS B AR ASSOCIATION MAGAZ INE | WIN TER 2021 | ISSU E 90

THE FUTURE OF PERSONAL INJURY LITIGATION? Three leading practitioners give their view

JUDICIAL REVIEW REFORM? 100TH ANNIVERSARY OF 1921 ANGLO IRISH TREATY THE BIRTH CERTIFICATE OF IRISH DEMOCRACY?


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Winter 2021 dsba.ie

From the Editor

W

elcome to the Winter edition of the Parchment which always coincides with the lead-in to Christmas. It has been a year like no other and thankfully, practitioners have continued to do what they do best – practise law and advise their clients, despite a year of lockdowns, restrictions, Court cancellations and consequent delays. Many of us have now become proficient at attending virtual Court by logging on from our offices and homes. This has worked better than most of us expected and the hybrid model of a mix between physical hearings and online hearings looks set to be the norm for 2022. n this edition, we shine a light on the current state of personal injuries litigation and we ask three leading practitioners how they see certain matters pan out in the future. There is much to be concerned about and whilst the profession will face it head on, the genuine victims of personal injury accidents will unfortunately suffer.

ew DSBA President Diego allagher writes about bullying, harassment and sexual harassment in the Legal Profession in light of the findings in a recent survey. The conversation about such unacceptable behaviour in the workplace is thankfully at an advanced stage and with momentum, the profession will continue to stamp it out. The Winter Parchment is stuffed with articles from a range of practice areas and hope this content is of assistance in respect of current developments and updates in practice. May I wish you and your loved ones a peaceful and relaxing Christmas after what has been another difficult and different year. ere’s to a successful, healthy and normal 2022 for one and all.

John Geary jvgeary@gmail.com

DSBA COUNCIL 2021/2022

DIEGO GALLAGHER DSBA President

SUSAN MARTIN DSBA Vice President

JOAN DORAN Chair of Practice Management

KILLIAN O’REILLY Chair of Litigation Committee

AVRIL MANGAN

TOM O’DWYER

MATTHEW KENNY Treasurer

PAUL RYAN Honorary Secretary

NIALL CAWLEY Programmes Director

RONAN McLOUGHLIN Chair of Property Law Committee

CIARA O’KENNEDY Chair of Employment Law Committee

GERARD O’CONNELL Chair of the Parchment Committee

JESSICA HICKEY Chair of Probate & Tax

CIARA HALLINAN Chair of Criminal Law

EIMEAR O’DOHERTY Chair of Inhouse

of an advertisement in the Parchment does not necessarily signify official approval by the DSBA, and although every effort is made to ensure the correctness of advertisements, readers are advised that the association cannot be held responsible for the accuracy of statements made or the quality of the goods, services and courses advertised. All prices are correct at

time of going to press. Views expressed are not necessarily those of the DSBA or the publisher. No part of this publication may be reproduced in any form without prior written permission from the publishers.

The DSBA has moved…. After several years on Dawson Street, the Office of the DSBA has moved to the Capel Building, Dublin 7. Please note our new address and DX below:

EDITOR John Geary PARCHMENT COMMITTEE Gerard O’Connell (Chair) Keith Walsh Áine Hynes Julie Doyle Kevin O’Higgins Stuart Gilhooly Joe O’Malley Killian Morris COPYRIGHT The Dublin Solicitors Bar Association

PUBLISHED BY The Dublin Solicitors Bar Association, Unit 206, The Capel Building, Mary’s Abbey, Dublin 7 DSBA OFFICE, T: 01 670 6089 F: 01 670 6090 E: maura@dsba.ie DX 200206 Capel Building W: www.dsba.ie ADVERTISING ENQUIRIES Sharon Hughes T: 086 871 9600

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Winter 2021

Contents 8

The Future of Personal Injury Litigation? Three leading practitioners offer their views

12

We are sleepwalking into this nightmare and nothing is being done. To be clear, this is not the fault of the judges or the Courts Service page 8

THE FUTURE OF PERSONAL INJURY LITIGATION? 3 LEADING PRACTITIONERS GIVE INSIGHT

Judicial Review Reform: Back to the Future? Conleth Bradley SC takes a forensic view of Judicial Review Reform and provides insight on what the future may hold

16

100th Anniversary of the 1921 Anglo Irish Treaty Gerard O’Connell looks back at the centenary of the 1921 Treaty

22

Sick Leave Bill 2021

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The Plight of Afghan Female Judges

Jennifer Cashman assesses the proposed new Sick Leave Bill and summaries its main provisions

Joe O’Malley tells the astonishing story of the Afghan female judges; their settlement in Ireland and how the legal community here responded to a humanitarian crisis

30

Bullying, Harassment and Sexual Harassment in the Legal Profession Diego Gallagher highlights the findings of a recent Law Society survey

36

Ivan Daly Remembered Stuart Gilhooly pays tribute to his late friend and colleague

Dublin Solicitors Bar Association Unit 206,The Capel Building, Mary’s Abbey, Dublin 7, Ireland T: 01 670 6089 E: info@dsba.ie W: www.dsba.ie

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08

Ernest J. Cantillon


Winter 2021 dsba.ie

Contents

REGULAR FEATURES 01 04 60 63

Editor’s Note President’s Message In Practice News

26 38

Complex Regulatory Environment for Solicitors Susan Martin outlines that there are many considerations and requirements for solicitors in dealing with a new client

42

No PIAB Authorisation Required Mark Jones reports that new guidance from the Court of Appeal confirms that there is no requirement for PIAB authorisation in defective medical product cases

46

Legal Terminology

52

New Law en Route for Scooters

54

Commercial Tenants and Covid-19

56

Significant Supreme Court Decision on Whistleblower Protection

Bill Holohan examines some important legal phraseology and explains their import

38

Leo Moore and Andrew Desmond review the new Road Traffic and Roads Bill 2021 which will legislate for the use of Scooters

Jackie Buckley and Matthew Austin review a recent case where the High Court considered a petition to wind up a commercial tenant in the context of Covid-19

Terence McCrann and David McCauley say the judgments in a recent Supreme Court case should be carefully considered by those dealing with protected disclosures

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Message from the President

Solicitor Collegiality

I

am honoured to have been elected as the President of the DSBA. I want to pay tribute to outgoing President Joe O’Malley who has steered us through the most challenging of times. The last 18 months have seen a Trojan effort on the part of our profession. Our mission to deliver an essential service to the public and to support the rule of law continued. We must celebrate and recognise the achievements of our profession. This year I want to highlight the pride that we have in our past, the changes that are already happening, the faith that we have in our future as a profession and the support that the DSBA will continue to proactively give solicitors throughout these changes. The DSBA has been representing its members since 1935. Over the years, the DSBA has continued to promote the interests of its members in areas such as delays in the Courts, practice management and professional indemnity insurance. This will continue apace. New ways of practising law are developing rapidly. We have seen the introduction of remote court hearings, remote working and new legal business models. All areas of law will continue to evolve. While change will happen, solicitors will continue to deliver a fundamental service to society. As the law becomes more complicated, clients have more need for dedicated solicitors to explain the law to them and how it can help them. There is a continuing need for advocacy both in areas relevant to solicitors and in areas relevant to society. The DSBA, as your representative body, will continue to advance your interests. This year the DSBA has made submissions to the Review of the Administration of Civil Justice group and the general scheme of the Family Law Court Bill to name but two. The DSBA will represent its members on the LSRA Legal Services Regulatory Authority consultation on the creation of a new profession of conveyancer and will make representations on systemic delays in Court lists. A new Human Rights and Public Interest law committee has been formed. We have seen how in need of protection the rule of law is. We welcome the recent initiative to support our colleagues in Afghanistan and the DSBA will play its part. These representations are only possible through the hard work of many DSBA volunteers sitting on committees and I want to thank them for all their work. The ability to obtain Professional Indemnity Insurance at an economical rate

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remains a huge challenge for our members. Every year the situation worsens and threatens the viability of legal practices. The DSBA made a submission to the LSRA on the Regulation of PII for solicitors. This was assisted through a consultation process with DSBA members. Recommendations included a transparent review of the feasibility of a master policy and reform of the assigned risks pool. The DSBA recognises the fundamental importance of this issue to our members. This issue will continue to receive top priority from the DSBA. Perhaps the best way to futureproof ourselves is to keep on learning and explore new areas of practice. The DSBA will continue to produce a regular programme of top quality CPD Continuing Professional Development and will continue to produce the outstanding Parchment magazine. The DSBA will carry on producing new industry standard precedents for the benefit of our members. A key focus for the DSBA will be solicitor collegiality. The DSBA is known for its social events and next year we hope to resume our social events in different parts of Dublin. However, collegiality is more than just socialising events. Collegiality is the time you picked up the phone to a newly qualified colleague to give them tips for their new business…or the time you chatted to a colleague during the tea break of a DSBA seminar to exchange information or even just to give a supportive word. Wider than this, the help you give trainees and legal executives on their journey must be recognised. We want to encourage collegiality amongst all our members.

Collegiality is a key component of wellbeing for solicitors. The DSBA has been at the forefront of supporting solicitors’ wellbeing for decades. In addition to seminars and social events the DSBA Consult a Colleague phone line has been in operation for many years. The DSBA also has a Younger Members Committee which focuses on the needs of that cohort. The Dignity Matters survey on bullying and sexual harassment has just been received and its findings are truly shocking. Bullying and sexual harassment are totally at odds with collegiality. The DSBA will play its part in supporting any recommendations arising from it and in supporting the wellbeing of colleagues who have suffered from the scourge of bullying or sexual harassment. 2022 promises to be another year of change. The DSBA will continue to be a strong voice for its members, a force for innovation and will proactively support solicitors through this change. Solicitors continue to face many serious challenges. I have every faith that, together, we can overcome those challenges. I am proud to be a solicitor, particularly for the profession’s enduring dedication to justice, and I am proud to be a member of the DSBA. Thank you for the essential work that you do to deliver a service to people in Ireland and thank you for your commitment to the DSBA. I wish you all a peaceful, healthy and happy Christmas and a prosperous New Year. Diego Gallagher, DSBA President


WISHING ALL OUR COLLEAGUES AND FRIENDS A VERY

MERRY CHRISTMAS FROM THE TEAM AT


DSBA AGM The AGM of the Dublin Solicitors Bar Association took place at the Westbury Hotel on the 27th October 2021

T

he AGM was extremely well attended as it signalled the end of Joe O’Malley’s year as President. Diego Gallagher took over the reigns at the helm of the DSBA, following in the footsteps of his father, Brian

Outgoing DSBA President Joe O’Malley hands over the baton to new DSBA President Diego Gallagher

Paul Ryan and John Glynn 6 the Parchment

Gallagher who was DSBA President in 2007. Eimear O’Doherty was newly elected as a DSBA Council member. Susan Martin is the new DSBA Vice President with Matthew Kenny as Treasurer with Paul Ryan installed as Honorary Secretary for the year ahead. P

Robert Ryan and Matthew Kenny

Richard Hammond SC and Paul Keane

David Stafford and Elaine Given


Winter 2021 dsba.ie

DSBA AGM

DSBA Council line up: Back row (left to right) – Gerard O’Connell; Niall Cawley, Joe O’Malley, Eimear O’Doherty, Matthew Kenny, Paul Ryan Front row (left to right) – Ciara O’Kennedy, Susan Martin, DSBA President Diego Gallagher, Killian O’Reilly, Avril Mangan, Joan Doran

Joe O’Malley and David Walley

Niall Cawley, Avril Mangan and Tony O’Sullivan

Like father like son – Diego and Brian Gallagher

Eimear O’Doherty (left) and Susan Martin the Parchment 7


The Future of Personal Injury Litigation? With considerable changes to the personal injury landscape in recent months following the introduction of the Personal Injury Guidelines in April 2021 and the significant downward pressure applied to many personal injury cases from recent Circuit and Superior Court decisions, Parchment editor John Geary caught up with three of the leading Personal Injury practitioners in the country and canvassed their views on what the future may hold. Stuart ilhooly (Dublin), rances Twomey (Limerick) and Ernest Cantillon (Cork) have their say

1. How do you think the new personal injuries guidelines will affect victims of personal injury? Stuart Gilhooly: think they will have a devastating effect. n addition to the injuries they have suffered as a result of the negligence of another, they have literally added insult to injury. Many of my clients are aghast at the low level of damages, particularly where they have ongoing pain and restriction. The guidelines are certainly draconian so hopefully the judiciary will exercise what little discretion it has to be as fair as possible to genuinely injured victims who form the vast majority of claimants. Frances Twomey: es they will affect victims hugely. Those with no loss of earnings will be affected the worst. They will be left with ongoing sequalae into the future and no compensation. Ernest Cantillon: The short answer to this query, is that the Guidelines will leave victims disillusioned. The 8 the Parchment

successful campaign orchestrated by the Insurance ndustry, and Employers Representatives, has resulted in a situation where victims of tortious wrongdoers have been painted as pariahs. Victims now come to us apologising for having to bring a claim. At one time, society had empathy for victims of wrongdoing. Recompense and an apology would be the order of the day. We frequently see multi euro settlements being ruled, where the wrongdoer has the temerity to say (loudly), that there is no admission of liability here. Even at that stage, they do not even have the decency to apologise. If you bump into somebody in a corridor, you would immediately apologise. If you rear end them, and cause them a whiplash, you deny liability. The pendulum has swung way too far in favour of the wrongdoer. Unfortunately, the recalibration by the Judicial Council in some instances and in particular for whiplash cases is too severe. We have a plethora of Legislation that puts obstacles in the way of a victim, and puts them at a


Winter 2021 dsba.ie

Personal Injury Litigation

Stuart Gilhooly of H.J Ward Solicitors, Dublin

Frances Twomey of Frances Twomey and Co. LLP, Limerick

considerable risk of having to pay the costs, of not alone his her own Lawyers, but also the Defendant’s Lawyers etc. We have been fortunate in that most members of the Judiciary have stood steadfast against the media onslaught seeking a reduction in damages. t takes judicial courage to give a just award, with the prospect of knowing that one might be slated in a banner headline. 2. Will certain victims now face a problem with access to justice if some cases become economically unviable for practitioners? Stuart Gilhooly: es, this is very likely. Where damages are at the lower level, it will simply not be economically viable for many solicitors to take on cases. Every file has a minimum cost attached to it and if, for instance, a claimant is receiving less than €2,000 it is hard to see why they would bother, after payment of even the minimum level of fees. This is, of course, what the insurers want. People bleat on about access to justice being important but in reality, little is being done to assist. Words are hollow, action must follow. These guidelines are another nail in the coffin for access to justice for the average citi en. The solicitors profession has operated an unofficial legal aid system for years but bills have to be paid in our offices too. Frances Twomey: This is absolutely correct. A number of colleagues will stop running the small cases as it will not be worth it. Ernest Cantillon: There are now considerable costs incurred in running any office, not just a Legal

Ernest J. Cantillon of Cantillon Solicitors, Cork

practitioner s office. Each week one has to pay rent, rates, salaries, Professional Indemnity Insurance, and all the other overheads that come with running an office. This means that each case has to be economically justifiable. The scale of fees in the District Court, even for the largest case, make it unviable to bring a case in the District Court. The same amount of work goes into the case, despite the fact that it is no longer a “Circuit Court Case”. As a consequence, a number of firms will no longer take personal injury cases, which fall within the jurisdiction of the District Court. Thus, victims will indeed face a problem with access to justice in the smaller cases. The scale fees will have to be revised upwards if that anomaly is to be removed. 3. Do you think the District Court is equipped to deal with complex personal injuries procedurally and resource wise? Stuart Gilhooly: nfortunately not. t doesn’t have capacity or the resources. t wasn’t set up as a court to deal with cases such as these. They can be quite complex with important procedural and interlocutory disputes such as over particulars and discovery which are not properly catered for in the rules. And most importantly, the scales of costs are hopelessly out of date. There is very little difference, in terms of work done, between a fully fought District Court and Circuit Court case, yet the costs are poles apart. Until these are updated fairly, solicitors will simply not take these cases on and it will be the individual, underfunded victim who suffers as usual. While the insurers win. Again.

Every file has a minimum cost attached to it and if, for instance, a claimant is receiving less than €2,000 it is hard to see why they would bother, after payment of even the minimum level of fees

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Frances Twomey: The District Court is in no way equipped to deal with personal injuries. The District Court in Limerick is swamped with crime. There is no time for anything else.

The Circuit Court has been consistently ignored while being loaded with more and more work and as always, it will be left to those working the hardest to try and fix it

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Ernest Cantillon: District Court udges have little or no experience (as udges) of dealing with personal injury cases. However, most Judges will have dealt with personal injury cases prior to their appointment, and one would have thought that they are reasonably familiar with the trends. Therefore, think that District Court udges have the ability to deal with these cases. As to whether or not there are sufficient resources to deal with them, I suspect that in certain areas there will not be, because some Judges are very heavily over loaded with work. Because of the problems perceive in some cases not being brought, this may not turn out to be as big a problem as some may fear. 4. Is the Circuit Court ready to handle a probable 50% increase in the volume of cases? Stuart Gilhooly: The Circuit Court is at least used to dealing with personal injuries cases but there is a major resource issue. There are not enough courtrooms, judges, staff or county registrars. A major crisis is coming and it can only be fixed by substantial investment. We are sleepwalking into this nightmare and nothing is being done. To be clear, this is not the fault of the judges or the Courts Service. The Circuit Court has been consistently ignored while being loaded with more and more work and as always, it will be left to those working the hardest to try and fix it.

Frances Twomey: The Circuit Court in Limerick is already backlogged. There are not enough udges. Ernest Cantillon: The Circuit Court, unfortunately, is not in a position to handle an increase of that magnitude. More Judges will have to be appointed. 5. What do you see as the future of personal injuries practice? Stuart Gilhooly: It is unclear at present. There will always be work for solicitors in this area but the smaller cases will be uneconomic for some. It may well be that only those working large volumes of cases will be able to make an overall profit by taking on loss leader smaller cases in the hope that some of the bigger ones will make up for them. would urge, where possible, that solicitors do not leave clients high and dry. f they feel unable to take these cases on, be sure to refer to solicitors who may be willing to do so to ensure that as many people as possible get access to justice. Frances Twomey: Personal injuries are now going to become the specialisation of just a few. Practices will need a very large volume of P. . in order to make it viable. The large cases will subsidise the small ones. If a practice only has small cases, it will not be viable to continue running them. Ernest Cantillon: The future is undoubtedly challenging. The larger cases will continue to be brought. Some of the smaller cases will just not be brought, in particular cases that would have been at the lower end of the Circuit Court scale prior to the introduction of the Judicial Guidelines. P


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Judicial Review Reform: Back to the Future? Conleth Bradley SC takes a forensic view of Judicial Review Reform and provides an insight on what the future may hold

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Introduction

Constitutional Context

Judicial review applications occupy most of the workload of the Superior Courts in Ireland with dedicated lists in the High Court dealing with a range of issues from asylum to strategic infrastructure and planning in addition to the main on- ury udicial Review List. The decisions which emanate from the judicial review process can be described as the engine room for the development of the public law element of Irish common law. In this regard there have been an exponential number of judgments delivered by the High Court and seminal decisions on diverse public law issues have been handed down by the Court of Appeal and the Supreme Court in matters dealing with climate change, energy supply and the role of bodies such as the Workplace Relations Commission. The process, rules of court and applicable principles involved in conventional judicial review applications in Ireland and the UK share many features. However, when it comes to proposals addressing reform of judicial review, significant points of departure are apparent in each jurisdiction. Two notable features of comparison are first, the respective constitutional contexts and second, procedural versus substantive reform.

In the UK the judicial review reform agenda has become a lightning rod for a much more fundamental debate about the nature of its constitutional settlement in a post-Brexit . For example, last October the UK Attorney General, the Rt Hon Suella Braverman QC MP, delivered a keynote speech to the 2021 Public Law Project Conference entitled Judicial Review Trends and Forecasts 2021: Accountability and the Constitution. In emphasising the paramountcy of parliamentary sovereignty, the UK AG suggested that in recent years, against the background of an unwritten constitution, certain judicial review decisions (including, for example, the two Miller cases which arose from Brexit) had tested the constitutional balance between parliament, the government and the courts. The UK Attorney referenced her view that the last ten years in the UK had “demonstrated an increased appetite for political litigation, and, more worryingly, an appetite for putting judges in an invidious position, by asking them to decide essentially political matters on applications for judicial review.” In Ireland, in contrast, the judicial review process is at the lynchpin of our constitutional architecture


Winter 2021 dsba.ie Conleth Bradley SC is a practising barrister and the author of the forthcoming book Judicial Review: Context, Themes and Principles. (Thomson Reuters, 2022).

and the separation of powers. For example, Chief Justice Donal O’Donnell has observed that the judicial power, although the weakest branch, is essential to the maintenance of that balance particularly in a structure which provides for a parliamentary democracy in which the executive branch is part of, and largely controls, the legislative branch. The reference to the ‘weakest branch’ should not be misconstrued as curial self-effacement. t is meant, rather, in the context of Alexander Hamilton’s description in The Federalist Papers to the judiciary being, in a constitutional sense, the least powerful and the least dangerous branch of government because it does not control armies and has no spending power. We are fortunate that since the coming into operation of Bunreacht na hÉireann in 1937 each of the branches of government – legislative, executive and judicial – have faithfully respected each other’s constitutionally prescribed function. In terms of the judicial review reform agenda, therefore, the constitutional position in Ireland is well settled and informed by the guiding hand of the Superior Courts and their associated constitutional jurisprudence.

Procedural versus substantive reform It is against this respective constitutional background

Judicial Review

that current proposals for judicial review reform can be examined. (a) The reference in the Queen’s speech to the UK government’s intention to restore “the balance of power between the executive, legislature and the courts” is sought to be achieved through the Judicial Review and Courts Bill 2021. The proposed legislation, for example, includes a recommendation that quashing orders (e.g. certiorari) should be able to be suspended to allow a public body remedy a legal defect without its decision being treated as void and of no effect. Interestingly, the Irish Supreme Court in a number of cases in recent years has adjourned consideration of making final orders where findings of unconstitutionality have been made. It could be argued that the effect of adjourning a final order has a similar consequence to the exceptional Canadian practice of suspending a declaration of invalidity. Whether or not that is correct, the practice of adjourning a final order is another example of how the separation of powers in Irish law operates at a practical level with the judicial arm of government the Parchment 13


recognising the consequences of its ruling on the executive and legislature.

It is suggested that its membership in the future should include lawyers with relevant EU, environmental, planning and compulsory acquisition experience together with the establishment of an appropriately resourced dedicated inhouse Legal Unit or Law Department

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(b) reland In areas of public life where the judicial review process has been incorporated into legislation – most notably planning and immigration – the reform agenda has concentrated on process and in particular the pros and cons of introducing further procedural restrictions. In planning cases, for example, the ability of persons or groups to delay strategic infrastructure by legal challenges – such as Apple’s construction of a data centre near Athenry or the challenge to the construction of a cheese manufacturing plant in ilkenny – have informed the general discussion of judicial review reform in this area. Addressing conventional judicial review applications, the Review of the Administration of Civil ustice (7 December 2020) chaired by Mr. ustice Peter elly, former High Court President, made a number of procedural recommendations including that primary legislation be introduced for conventional judicial review leave applications and that provision be made for inter alia (a) a raised threshold of substantial grounds’; (b) a requirement of reasonable prospect of success’; (c) verification of a demonstrable substantial interest’; (d) slip-rule type exemptions; (e) the introduction of further time restrictions including consideration of using unless orders’ (f) further consideration be given to the use of ‘wasted costs orders’ subject to EU law and Aarhus Convention requirements. The Review Group also recognised that the Department of Housing, Planning and Local overnment (as it then was) had published a eneral Scheme of a Housing and Planning and Development Bill 2019 which included similar amendments in relation to standing (locus standi) including the nature of an applicant’s interest, prior participation in the planning process, certain conditions to be met by an NGO and the replacement of the existing special legal costs rules. It can be observed, however, that previous legislative initiatives in the planning and asylum codes – dealing with (i) whether applications for leave to apply for judicial review should be made ex parte or on notice (ii) changes to the threshold for leave (iii) standing requirements and (iv) costs – had sought to address similar perennial challenges with arguably limited success. In addition, the judicial innovation of ‘rolled up’ or ‘telescoped’ judicial review hearings sought to address the need for more expeditious hearings. A number of observations arise. It is interesting that the “leave” requirement was recommended to continue by the Kelly Review Group. The process of requiring leave, however, is primarily aimed at filtering grounds (and reliefs) sought in an application for judicial review in order to allow for a more focused hearing. The low threshold of “arguability” ( v. DPP 1994 1 R 374) required at the leave stage has perhaps overshadowed this original purpose. It is suggested that an emphasis on (a) the filtering process and (b) the implementation of the requirement that judicial review grounds are particularised and precise (AP v. DPP 2011 1 R 729) at the leave stage would result in a more focused,

shorter and less costly subsequent substantive hearings. In terms of planning law generally, a number of alternative suggestions for reform might also be considered where An Bord Plean la (“the Board”) is concerned. irst, the Board, as a quasi-judicial body, is perhaps the most judicially reviewed public body. It is suggested that its membership in the future should include lawyers with relevant EU, environmental, planning and compulsory acquisition experience together with the establishment of an appropriately resourced dedicated in-house Legal nit or Law Department. n practical terms, this could facilitate a legal review at key points in the decision-making process, including the nspector’s report and the Board’s direction. Such a development would allow for the making of more legally robust decisions by the Board. Second, immediately before the provisions prescribing the judicial review process in planning law, section 50(2)), section (1) of the Planning and Development Act 2000 (as amended) provides that “Where a question of law arises on any matter with which the Board is concerned, the Board may refer the question to the High Court for decision”. These provisions are similar to the statutory codes which provide for an appeal “on a point of law.” The use of this procedure would allow for an ex ante clarification of legal matters before a decision is made rather than defending an ex post challenge to the validity of a Board decision by way of judicial review. It would appear that this statutory provision has never to date been invoked by the Board despite the myriad of quasi-judicial determinations it is required to make across a suite of legislative provisions including and beyond planning law and this may be contributed to by the absence of lawyers on the Board itself or the lack of an in-house Law Department.

Conclusion Observers and commentators will watch with interest the development of the jurisprudence which emerges from the O’Donnell Court. The Clarke Court was synonymous with ‘access to justice’ with the erstwhile Chief Justice making a number of judicial and extrajudicial observations on how costs provisions impacted upon litigation in Ireland. The O’Donnell Court, it is suggested, will build on this theme and it can be anticipated that the development of case law will be informed by the principle of government by separation of powers where it falls to the Supreme Court – as an apex court’ – to define the proper area of functioning of each of the three branches of government and to ensure that the administration of justice meets its societal and constitutional obligations. In terms of the judicial review process, we might not have long to wait. Very recently in O’Doherty & Waters v. The Minister for Health 2021 ESCDET 1229 the Supreme Court determined that the appeal in that case raised questions of general public importance regarding the burden of proof in the context of an application for leave to apply for judicial review to challenge the proportionality of certain measures dealing with Covid-19 insofar as they concerned certain alleged constitutional rights and where the applicants had failed to adduce any evidence (scientific, medical or technical) or direct impact on any person. P


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The Birth Certificate of Irish Democracy Following the recent centenary of the signing of the 1921 Anglo Irish Treaty, Gerard O'Connell gives a fresh perspective on the Treaty's lasting significance. Two Solicitors – Eamonn Duggan and eorge avan Duffy – formed the backbone of the rish delegation

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n December 6th 1921 at 2.10am, or thereabouts, on a bleak midwinter night, a document running to no more than 1, 00 words was signed at o 10 Downing Street. The document was the culmination of some five months of feverish negotiation between a delegation of plenipotentiaries representing D il ireann and a delegation of cabinet ministers representing the British overnment. One telling exchange has passed into the folklore around the night. The British Lord Chancellor, Lord Birkenhead, after he signed, said “ may have signed my political death-warrant tonight” to which Michael Collins shot back “ have signed my actual deathwarrant.” The document that was signed is called the Anglo rish Treaty of 1921. The Treaty ought to have been granted pride of place as the foundational document of rish democracy. owever, its significance has been matched equally by controversy and contention. To some it represented a repudiation of the rish Republic proclaimed during Easter Week, 1916. To others it cemented the political partition of the island. One thing is abundantly clear; the Treaty ushered in regime change in reland. As Lord Longford put it in his classic “Peace by Ordeal”, the Treaty’s signing meant

16 the Parchment

that ritish supremacy over reland first claimed in 11 was virtually ended”. istorians, Liam Weeks and M che l athartaigh have contended that the Treaty went well beyond both previous demands of rish nationalism and what previous British governments had been prepared to concede. t is above all the document that grants this State de facto independence, it created the conditions for democratic government to ourish in reland, it had the inadvertent effect of creating a party system where the Treaty itself supplanted ideological difference and finally one must not lose sight of the international impact the Treaty had in the relationship between former colonies and the then British Empire. By the summer of 1921 the reality of war was dropping fast on both British and rish minds. Pressure to put in place a truce was mounting on all sides. The period anuary 1921 to end of une 1921 had been blood drenched. 707 civilians and 525 members of the Crown forces had been killed. The pattern and nature of the violence was wretched. This was terror beyond all recent parallels seen in reland. Allied to this war weariness was a change of opinion in London. p to the summer of 1921 the view from Prime Minister David Lloyd eorge was that the rish troubles were caused by little more than a “murder gang”. That attitude had


Winter 2021 dsba.ie Gerard O’Connell works at the Chief State Solicitor's Office. He is Chairman of the Parchment committee

changed. Lord Birkenhead at the time commented that what was at play was a “war in reland, in which the British Military was failing to keep pace with”. Even the hawks at Whitehall such as ield Marshal Sir enry Wilson were admitting privately that a truce held out positive hope – in a diary entry in une 1921 Wilson wrote that a continuation of hostilities would make “us become repulsive to the English people”. The key interjection came from ing eorge during his opening address to the new orthern reland Parliament on 22nd une 1921. The ing made a direct plea for dialogue. This bore fruit and following the announcement of a truce on uly 9th 1921, Eamon De alera was invited to talks by Lloyd eorge. The uly 1921 talks yielded no results but there were three positive developments all the same. rom a British perspective it allowed Lloyd eorge the opportunity to disabuse De alera of the notion that a Republic would ever be conceded. rom the perspective of peace it allowed the truce to bed down and the horrors of war receded as an immediate danger. inally, it allowed space for the idea of a structured set of formal negotiations to take place in the form of a future conference to be held between representatives of both sides. t was this future conference that led to the Treaty.

1921 Anglo Irish Treaty

Both sides put forward a delegation. The rish delegation was led by Arthur riffith, the founder of Sinn in and the then D il Minister for oreign Affairs and comprised Michael Collins the D il Minister for inance and the Director of ntelligence for the RA, Eamonn Duggan (a TD for South Meath and a solicitor whose role largely involved liaison with the various British officials), Robert Barton (the D il Minister for Agriculture), eorge avan Duffy (a solicitor who had acted in the trial of Roger Casement) and Erskine Childers who acted as Secretary to the delegation. The British delegation comprised the socalled “Big our” of Lloyd eorge, Birkenhead, Austen Chamberlain and Winston Churchill supported by Sir amar reenwood, Sir Laming Worthington Evans and Sir ordon ewart (the British Attorney eneral). Before we turn to the negotiations themselves, it s worth mentioning two points which trammelled the hands of the rish delegation to some extent and become major points of contention afterwards. The first issue concerns the status of the rish delegates. Their appointment warrant (from the D il) described them as having powers of plenipotentiary and in particular the plenipotentiaries were vested with such power from D il ireann to “negotiate and conclude on behalf of reland with the representatives of his ritannic

The period anuary 1921 to end of une 1921 had been blood drenched. 707 civilians and 525 members of the Crown forces had been killed

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In the view of many historians, the Irish delegation was badly briefed; in particular the negotiations were already under way before de alera revealed to riffith what his policy on the lster question should be (and even then he had not shown it to his colleagues in Dublin)

Majesty, George V, a Treaty or Treaties of settlement, association and accommodation between reland and the community of nations known as the ritish ommonwealth”. The phrase “negotiate and conclude” suggests that the Irish delegation had the power to sign an agreed text however and subsequent to their appointment De alera drafted an instructions document which included the following direction “It is also understood that the complete text of the draft treaty about to be signed will be similarly submitted to ublin and reply awaited ” This seeming con ict between both documents was to greatly complicate matters towards the end of the negotiations. The second complicating issue concerned the very invitation that Lloyd eorge made and which De alera accepted before the talks began. Lloyd eorge’s invitation spoke of a conference where we can meet your delegates as spokesman of the people whom you represent with a view to ascertaining how the association of reland with the community of nations known as the ritish empire may be reconciled with rish national aspirations”. Such a formula in the words of Professor Lee “contained the sown seeds of compromise” – there could not conceivably be any suggestion that a Republic was on the table based on that invitation. The fact that the invitation was accepted without demur suggests that there was tacit acceptance of this by the rish. The negotiations themselves consisted of seven plenary sessions held between October 11th and October 24th and a series of subconferences thereafter. The talks centred on five key areas (1) Trade; (2) inance, (3) Defence (4) lster and (5) the Crown. The main contentious issues were lster’, the Crown, and British defence requirements. n the view of many historians, the rish delegation was badly briefed; in particular the negotiations were already under way before de alera revealed to riffith what his policy on the lster question should be (and even then he had not shown it to his colleagues in Dublin). ot only were there internal divisions within the delegation, but as the talks continued a gap widened between the representatives in London and the remainder of the cabinet at home.

Eamonn Duggan, Michael Collins and Arthur Griffith 1921 18 the Parchment

Avoiding a break in the negotiations for both sides was a tactic of paramount importance. or the British avoiding a break on the lster question was very important and whilst they were pressed repeatedly the proposed solution of a Boundary Commission to set the border between north and south was presented. Draft terms (of a Treaty) were discussed at a Cabinet meeting in Dublin on December 3rd. The delegates were sent back to London to present counter proposals on external association as opposed to Dominion status and recognition of the Crown. These counter proposals were presented and rejected (as they had been on a number of occasions before) and after last minute concessions were wrung from the British by Collins and riffith on issues such as the text of the Oath of Allegiance, defence and fiscal autonomy and with the threat “of war and war within three days” ringing in their ears the rish delegation signed the Treaty on 6th December 1921. There were 1 separate articles contained in the Treaty. Article 1 dealt with the new constitutional status of reland and that it would have the same constitutional status (Dominion Status) as Canada, Australia and ew ealand. By 1921 those nations or dominions had gained substantive political independence. Article 2 provided for the relationship between reland and the British Crown and clarified that reland and Britain would enjoy the same relationship as existed between Britain and Canada. Erskine Childers had produced a memorandum for the rish Delegation setting out both the de jure and de facto constitutional status of Canada. The memorandum showed that Canada had substantive political independence and internal sovereignty. or reland to be “pegged” to Canada in this regard was a real achievement of the rish delegation. Article 3 provided for the overnor eneral of reland to be appointed in the like manner of his Canadian counterpoint. Another win on the autonomy side as Canada appointed its own overnor eneral and had agency over the appointment. Article 4 provided for an Oath of Allegiance. The Oath was perhaps the single most controversial element of the Treaty. Collins had managed to achieve a crucial last minute amendment to the text of the Oath providing that allegiance was actually to be sworn to the forthcoming Constitution of the rish ree State and not to the British king however such subtleties were lost on doctrinaire republicans in the forthcoming debate. Articles 5 and 10 dealt with financial matters such as reland’s proportion of mperial debt. Articles 6 to 9 considered the question of defence and ports. The deletion of the word “coastal” from these articles was insisted upon by Michael Collins and the effect of this was to ensure that a new rish army could be established. Articles 11, 13 – 16 dealt with lster in a complex series of interconnected provisions which allowed for different scenarios. owever, as we well know the status quo as established by the overnment of reland Act, 1920 prevailed. Article 12 provided for the establishment of a Boundary Commission to establish the extent of the border between orth and South and finally Articles 17 and 1 dealt with transfer of power provisions. The Treaty was endorsed by a 4-3 vote of the rish cabinet. inally on 7 anuary 1922 the D il ended its deliberations and ratified the Treaty by 64 votes to 57. n the following une 1922 eneral Election candidates who supported the Treaty obtained 7 per cent of the firstpreference votes. P


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Alice White is the Registrar of Wards of Court and has 19 years’ experience in the Courts Service

Wards of Court

Changing Times in Wardship Alice White, Registrar of Wards of Court says the Assisted Decision-Making (Capacity) Act 2015 will bring about important changes for people who are adult wards of court

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he Decision Support Service (the DSS) is a new service for adults who need support making decisions. This may include people with an intellectual disability, psychiatric illness, acquired brain injury and those with age-related conditions including dementia. As practitioners you will be aware of the upcoming commencement of the Assisted Decision Making (Capacity) Act 2015 and the changes that this will bring. The Assisted Decision Making Capacity (Amendment) Bill 2021 has now been approved bringing us closer to commencement. The Wards of Court Office is planning for the commencement of this Act and has issued communications recently to committees of wards of court, in relation to commencement of the Act and the funds held in Court. Some practitioners will have received this communication in a professional

capacity as committees committee representatives. The DSS has opened its consultation process on six of the 14 Codes of Practice, including the Code of Practice for legal practitioners, designed to provide guidance on the application of the Act. These are available at www.decisionsupportservice.ie

What Changes to Expect and What will Stay the Same? t is expected that the DSS will start registering new decision support arrangements in mid-2022. Once commenced the Wards of Court Office will no longer be authorised to accept applications for adult wardship. The office will continue to accept applications relating to minors. The Circuit Court will become the jurisdiction for applications under Assisted Decision Making (Capacity) Act. All wards of court will be discharged from wardship, following a capacity review, over a three-year period, on commencement of the Act. Applications for discharge will be processed in the sequential manner in which they are received. The wardship list will continue to sit hearing applications relating to current wards of court for minors and Enduring Powers of Attorney. A separate list under the wardship court will hear applications for discharge from wardship. Subject to the availability of judicial resources, a minimum of two, but more probably three judges will sit on a daily basis to hear discharge applications The office will continue to register Enduring Powers of Attorney created under the Powers of Attorney Act 1996 and deal with Court applications under the 1996 Act. The DSS will only register Enduring Powers of Attorney created under the Act of 2015, applications to Court under the 2015 Act will be made to the Circuit Court and the Director of the Decision Support Service will have powers to investigate complaints in relation to Attorneys. Over the coming months the office will continue to communicate directly with committees of wards of court and practitioners by providing updates on the Courts Service website. For further information on the discharge process you can contact the o ce through wardsdischargeapplication courts.ie information on the Decision Support Service is available on www decisionsupportservice ie P

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Sick Leave Bill 2021 With the introduction of new legislation on Sick Leave now making its way through the Oireachtas, Jennifer Cashman assesses the proposed new Sick Leave Bill and summarises its main provisions

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n 9 June 2021, the Tánaiste and Minister for Enterprise, Trade and Employment, Leo Varadkar TD, announced details of a new law to give all workers the right to paid sick leave. The announcement was of a scheme, to be phased in over the next four years, which would provide for up to ten days of paid sick leave per year by 2025.

Sick Leave Bill 2021 Most recently, on the 5th November last, the Government has published further details with the publication of the highly anticipated Sick Leave Bill 2021 (“the Bill”), with pre-legislative scrutiny of the Bill to commence this week. The Bill introduces for the first time a right to sick pay which will be legally enforceable through the Workplace Relations Commission and the Courts. This legislation is viewed as a progressive measure for both employers and employees that will bring Ireland in line with many other wealthy OECD countries. However, many employers are obviously concerned about the cost to business of this new law. Currently, Ireland is one of the few advanced countries in the European Union that does not have any legislation providing mandatory sick pay. While many large companies in Ireland already have sick pay schemes in place for their employees, many employees in low paid jobs are without paid sick leave. This divide was particularly highlighted during 22 the Parchment

the Covid-19 pandemic when many of the low paid essential workers were forced out of financial necessity to continue going to work while feeling unwell as they had no paid sick leave. Labour’s spokesperson on Employment Affairs, Senator Marie Sherlock, described the lack of paid sick leave as “a fundamental weakness in our fight against the pandemic”. Therefore, in June 2021, the Irish government’s Summer Legislative Programme 2021 prioritised the introduction of a statutory sick pay scheme for Ireland.

Employees’ Entitlements and Eligibility The Bill as currently drafted provides for “statutory sick leave”, which is defined as the “entitlement of an employee to be paid statutory sick leave payment by his or her employer in respect of a statutory sick leave day”. The Bill applies to employees (those working under a contract of service) who have completed 13 weeks continuous service and the entitlement as set out in the Bill is to 3 statutory sick leave days per annum, with the provision for the Minister to vary the number of statutory sick leave days to such number of days as he or she considers appropriate having regard to: (a) the state of the economy generally, the business environment and national competitiveness; (b) the potential impact, including the potential for any disproportionate or other adverse impact that the making of an order will have on the economy generally, specific sectors of the economy, employers or employees; (c) annual and quarterly data on earnings and labour


Winter 2021 dsba.ie Jennifer Cashman is a partner and practice group leader of RDJ Solicitors’xs Employment Team

costs as published by the Central Statistics Office; (d) expert opinion, research, national or international reports relating to the matters specified at paragraphs (a) to (c) that the Minister considers relevant; (e) such other matters as the Minister considers relevant. The Bill also provides that the first Order made by the Minister cannot reduce the number of statutory sick leave days and the Bill also provides that an Order of the Minister can never reduce the number of statutory sick leave days below 3 days nor can the Minister increase the number of statutory sick leave days per annum by more than 3 days. The first Order made by the Minister cannot be made before the expiration of 12 months after the commencement of the entitlement to statutory sick leave and subsequent Orders must be at least 12 months apart. This at least provides for some certainty for employers for a full year after the entitlement is introduced, and also on each occasion that the entitlement is increased. Statutory sick leave days can be consecutive or nonconsecutive and employees must provide the employer with a medical certificate signed by a registered medical practitioner stating that the employee named in the certificate is unable to work.

Payment for Statutory Sick Leave In terms of calculating the payment, the Bill provides for a daily rate of payment in respect of each statutory sick day (referred to as the “statutory sick leave

Employment Law

payment”). The Minister can make Regulations for the purposes of prescribing the statutory sick leave payment, which may; (a) specify the percentage rate of an employee’s pay, up to a maximum daily amount, at which statutory sick leave payment will be paid, (b) subject to the maximum daily amount specified in accordance with paragraph (a), specify an allowance in respect of board and lodgings, board only or lodgings only in a case in which such board or lodgings constitute part of the employee’s remuneration calculated at the prescribed rate, or (c) subject to the maximum daily amount specified in accordance with paragraph (a), specify basic pay and any pay in excess of basic pay in respect of shift work, piece work, overtime, unsocial hours worked or hours worked on a Sunday, allowances, emoluments, premium pay (or its equivalent), or any other payment as the Minister considers appropriate, that are to be taken in to account in the calculation of statutory sick leave payment.

Interplay with Contracts of Employment The Bill provides that nothing in the Act (once eventually enacted) shall prevent the inclusion in a contract of employment of a provision that is— (a) as favourable to an employee as, or (b) more favourable to an employee than, an entitlement to statutory sick leave in accordance with this Act, and any such provision shall be in substitution for, and not in addition to, that entitlement. the Parchment 23


Given the pressures facing practitioners in this era, the Bill provides that the Labour Court may, on application to it by an employer or an employer’s representative, exempt an employer from the obligation to pay an employee or number of employees statutory sick leave payment otherwise payable to them under the legislation

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Equally, the Bill provides that a provision in a contract of employment that is less favourable than the entitlement provides for under the legislation will be deemed to be modified so as not to be less favourable. Therefore, the statutory sick leave entitlement is the least an employer can give to employees once the legislation is enacted.

Non-application of Obligations under Act The Bill also provides that the obligations under the legislation shall not apply to an employer who provides his or her employees with a sick leave scheme where the terms of the scheme confer, over the course of a reference period set out in the scheme, benefits that are, as a whole, more favourable to the employee than statutory sick leave. In that regard, to determine whether a sick leave scheme confers benefits that are, as a whole, more favourable than statutory sick leave, the following matters shall be taken into consideration: (a) the period of service of an employee that is required before sick leave is payable; (b) the number of days that an employee is absent before sick leave is payable; (c) the period for which sick leave is payable; (d) the amount of sick leave that is payable; (e) the reference period of the sick leave scheme. A “sick leave scheme” is in turn defined as follows – “sick leave scheme” means a scheme that provides for the payment of remuneration that an employee will be entitled to receive during a period of illness or injury according to the circumstances and subject to the conditions of the scheme under— (a) a contract of employment, (b) an enactment, (c) a collective agreement negotiated with a recognised trade union or staff association, or (d) any individual or other group arrangement.

Exemption from Obligation to pay Statutory Sick Leave Payment Given the pressures facing practitioners in this era, the Bill provides that the Labour Court may, on application to it by an employer or an employer’s representative, exempt an employer from the obligation to pay an employee or number of employees statutory sick leave payment otherwise payable to them under the legislation. Such an exemption cannot exceed one year, and cannot be for less than 3 months. The application for an exemption will result in a hearing by the Labour Court, followed by a written decision of the Court. The Bill goes on to provide that the Labour Court shall not grant an exemption under subsection (1) unless it is satisfied that— (a) where the employer makes an application for an exemption, and that employer employs more than one employee, he or she has entered into an agreement with— (i) the majority of the employees, (ii) the representative of the majority of the employees, or (iii)a trade union representing the majority of the employees, in respect of whom the exemption is sought, whereby the employees, the representative of the employees or the trade union, consents to

the employer making the application, and to abide by any decision on the application that the Court may make, and (b) the employer’s business is experiencing severe financial difficulties. Where the Labour Court is not satisfied that the majority of the employees or their representative consents to an application under paragraph (a) of that subsection, the Labour Court may grant an exemption under subsection (1), provided the Labour Court is satisfied that— (a) the employer has informed the employees concerned of the financial difficulties of the business and has attempted to come to an agreement with the employees, their representative or trade union in relation to a proposed exemption from payment of statutory sick leave payment, and (b) the employer is unable to pay statutory sick leave payment to the employees, due to the employer not having the ability to pay or being unlikely to be able to pay, to the extent that, if the employer were compelled to pay there would be a substantial risk— (i) having regard to the number of employees employed by the employer, that a material number of those employees would be likely to be laid-off employment with the employer, or made redundant, or (ii) that the sustainability of the employer’s business would be significantly adversely affected. There is appeal from the Labour Court to the High Court on a point of law.

Protection of Employment Rights The Bill provides that an employee shall, during a period of absence from work by the employee while on statutory sick leave, be treated as if he or she had not been so absent and such absence shall not affect any right related to the employee’s employment whether conferred by statute, contract or otherwise. Furthermore, the Bill states that absence from employment while on statutory sick leave shall not be treated as part of any other leave from employment (including annual leave, maternity leave, additional maternity leave, leave under section 16(1) and (4) of the Maternity Protection Act 1994, adoptive leave within the meaning of the Adoptive Leave Act 1995, additional adoptive leave within the meaning of the Adoptive Leave Act 1995, paternity leave, transferred paternity leave and parent’s leave) to which the employee concerned is entitled.

Employees on Probation The Bill very helpfully provides that where an employee is on probation or is undergoing training in relation to that employment or is employed under a contract of apprenticeship takes statutory sick leave, and his or her employer considers that the employee’s absence from employment while on statutory sick leave would not be consistent with the continuance of the probation, training or apprenticeship, the employer may require that the probation, training or apprenticeship be suspended during the period of statutory sick leave and be completed by the employee at the end of that period.

Penalisation Like many other pieces of employment legislation, the


Winter 2021 dsba.ie

Employment Law

Bill provides that an employer shall not penalise or threaten penalisation of an employee for proposing to exercise or having exercised his or her entitlement to statutory sick leave. The concept of penalisation in that regard is defined as in other employment legislation as follows; (a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2015), or the threat of suspension, lay-off or dismissal, (b) demotion or loss of opportunity for promotion, (c) transfer of duties, change of location of place of work, reduction in wages or change in working hours, (d) imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty), and (e) coercion or intimidation.

Employer Records The Bill provides that employers must make a record of the statutory sick leave taken by each employee, and such records must include the following detail and must be maintained by the employer for a period of four years (and failure to do so without reasonable cause is an offence under the legislation); (a) the period of employment of each employee who availed of statutory sick leave, (b) the dates and times of statutory sick leave in respect of each employee who availed of such leave, (c) the rate of statutory sick leave payment in relation

to each employee who availed of statutory sick leave.

Enforcement and Liability for Employers The Bill provides that, where an employee believes that his or her employer has failed to comply with the provisions of the legislation in relation to statutory sick pay, the employee can make a complaint to the Workplace Relations Commission (“the WRC”). A decision of the WRC under the legislation may include an award of compensation (in favour of the employee concerned to be paid by the employer concerned) of such amount, as the Adjudication Officer considers just and equitable having regard to all the circumstances but shall not exceed 20 weeks’ remuneration in respect of the employee’s employment. An appeal from the WRC lies as usual to the Labour Court and again the Labour Court can award compensation not exceeding 20 weeks’ remuneration. Claims must be referred to the WRC within six months of the occurrence of a dispute relating to the entitlement of an employee under the legislation.

Conclusion The bill as drafted has now commenced its journey through the legislative process and so will have to wait and see what amendments are introduced by the Dáil and Seanad. Employers who currently have no provision for sick pay will be watching very closely as this legislation progresses. P the Parchment 25


The Plight of Afghan Female Judges Joe O’Malley tells the astonishing story of the Afghan female judges; their settlement in Ireland and how the legal community here responded to a humanitarian crisis

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s part of an unprecedented global initiative spearheaded by the International Association of Women Judges, Ireland is currently facilitating the settlement of 10 Afghan female judges and their families by giving them refugee status in Ireland. The Irish legal community, in conjunction with the Irish Red Cross are doing their part to make available suitable accommodation for our Afghan colleagues and their families and implement a community sponsorship programme that will enable them to transition safely and effectively into rish society. This is an extraordinary response by the legal community to an international crisis and to find out more met with the very inspirational international justices behind the launch of this initiative, Judge Shireen Avis Fisher and Judge Patricia Whalen. Judge Fisher is a judge of the Residual Special Court of Sierra Leone and previously served as an Appeals Judge at the Special Court for Sierra Leone from 2009 to 2013. She was elected President of the Court in 2012 presiding over the appeal of Charles Taylor, the former President of Liberia convicted by the Special Court for war crimes.

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Judge Whalen has been a Judge for more than 20 years having presided over proceedings in the US and is the founding member of the Afghan Judicial Education programme which facilitates cultural judicial learning in both the S and Afghanistan. She served as official representative of the International Association of Women Judges at the Hague Conference on Private International Law. Both served as pioneering international judges at the War Crimes Chamber of the Court of Bosnia and Herzegovina. Their intellect, compassion and energy are in abundance. The International Association of Women Judges has been involved in Afghanistan since 2003, a time when the Taliban had recently been driven from power and become fractured. The Association has had an ongoing relationship with the Afghan female judicial community and when it was first anticipated earlier this year that the US and NATO troops would complete their withdrawal, the Association increased its focus again on the female Afghan judicial community.

Taliban Takeover and Call to Action Whalen says that until the sudden fall of Kabul to the Taliban in August and the emergency mass evacuation


Winter 2021 dsba.ie Joe O’Malley is managing partner of Hayes Solicitors. He is immediate past President of the DSBA

of troops, the female Afghan judges were going about their daily business and many were sitting in court on the morning when the Taliban takeover occurred. They were forced to return to their homes, gather no more than an 11kg backpack (about the same small si e as an airplane carry on) before eeing their homes and having all of their bank accounts cancelled. Their world literally suffered an overnight collapse. Whalen, Fisher and their colleagues in the International Association of Women Judges had been planning for such an event and through connections with international groups like the International Bar Association and local connections in countries willing to take eeing refugees from Afghanistan, they managed to secure visas for the majority of the female Afghan judges and their families. 240 of such judges comprising the majority of female Afghan judges wanted to leave and be resettled elsewhere (some, mainly older judges, decided to remain) and to date 153 of these judges and their families (totalling over 700 persons) have been evacuated from Afghanistan. They have either been settled in host countries or are in this process, currently situated in a temporary location awaiting visas and confirmation of a resettlement destination. More visas and resettlement places are

Interview

urgently needed and Whalen and Fisher continue their plea for host countries to come to their aid. This leaves 7 judges and their families (totaling 600 persons) who remain and for which ongoing efforts are being made to evacuate and resettle them. Ireland has played its part by accepting 10 female Afghan judges and their families, three of whom have already arrived and the remaining seven are in the process of being resettled in Ireland. Whalen says “what Irish lawyers are doing is consistent with work going on all around the world whereby civil society groups are rescuing people in the humanitarian crisis. t s not government groups although the rish overnment has been very good to work with t is the e orts of civil society groups that is the big story.” The female Afghan judges’ cohort, broadly divide into two groups. The first is the judges who were appointed before the overthrow of the Taliban in 2001 and the second group (comprising most of the judges settling in reland) is the newer judges who trained and practised in a post-Taliban run society.

Legal Credentials of Distinction Like Ireland and many other countries, Afghan legal students attend law courses at university for

They were forced to return to their homes, gather no more than an 11kg backpack (about the same small size as an airplane carry on) before eeing their homes and having all of their bank accounts cancelled the Parchment 27


On the Taliban taking over power and releasing all Taliban prisoners, many of these judges found their lives in immediate danger

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four years and then go on to choose to train as a lawyer, an advocate or a judge. This group have trained and practised as judges and have held very distinctive positions throughout the judicial system in Afghanistan. One of them, Judge Rasooli, known as the Afghan RB Ruth Bader insburg ’ is the only woman to be nominated (twice) to the Afghan Supreme Council (Court). All of them will be honoured next Spring with the prestigious Global Jurist of the Year award from Northwestern Pritzker School of Law’s Center for International Human Rights (C R) in recognition of their courage in the face of adversity to uphold and defend fundamental human rights and principles of international criminal justice. Notably, Fisher is a former recipient of this award. The 10 female judges who have been granted visas to relocate and live in Ireland possess enormous and invaluable skills and experience which include vast judicial experience in all courts dealing with public security, terrorist offences, drug trafficking. public corruption, violence against women, murder, rape, forced marriages, kidnappings and foreign criminal activities. Traditionally, female judges in Afghanistan have been given dangerous roles working in courts that sentenced criminals – including ex-Taliban members – to prison. Many worked on the S-funded narcotics court which sought to address the very serious heroin distribution and export problem in Afghanistan. On the Taliban taking over power and releasing all Taliban prisoners, many of these judges found their lives in immediate danger. Some of them are closely related to serving Taliban members who decry their positions under the new Taliban rule. Whalen, having previous experience in dealing with female Afghan judges, recalls that back in 2007, a colleague and fellow female judge whom she admired and knew very well had made a complaint about a male counterpart on the court whom she suspected of accepting bribes and being corrupt. The judge sought to make a complaint to a foreign embassy and Whalen recalls poignantly that 24 hours later she was reported as having been killed. At that time, Whalen had personal experience in visiting certain courts in Afghanistan and specifically recalls attending a juvenile court sitting where the court had no electricity and had scribes to take down testimony. She witnessed a juvenile with very little

clothing and no boots or a coat being brought before a female judge who showed remarkable compassion and directed that the accused be given clothes and boots before proceeding, standing up for his dignity. Whalen and Fisher describe with astonishing detail, the efforts made to achieve the evacuation of the female Afghan judges and their visa entries into host countries.

Emergency Evacuation Whalen remarks that before this campaign the International Association of Women Judges operated like a typical bar association by running events for members and it was not their modus operandi to get persons evacuated from a country and negotiate host countries with foreign governments. The airport evacuations commenced on 15 August and the Association had to go into crisis mode. They speak about one particular family who had to escape through navigating a sewer over the course of 20 hours (see featured image). They comment on the tremendous support they received from the Polish Special Forces who were on the ground in abul at the time (when the ATO and S soldiers couldn’t leave abul airport). These forces devised a code for their summoning by the Association with a name they would never forget rakow’ (see also the photos with this article). The ground operations involved massive manoeuvres and fundraising including chartering a plane for 00,000 and working with various agents to get the female judges and their families out of Afghanistan. All of this was done under extreme pressure, tension and anxiety for the Association and the female judges being evacuated. Whalen and Fisher note that the evacuation was only half the battle and the next part of the puzzle was to decide where the group and their families can go.

Resettlement For the most part, the group wanted to go to English speaking western democracies which has made Ireland a very attractive destination. However, this is part of a global movement involving most of Europe, the US, UK and parts of South America, South Korea and Northern Europe. While pleading for more visas and host countries, they are conscious not to add to the universal problem of migration and they acknowledge that efforts like this do mean skipping the queue ahead of others in refugee camps.


Winter 2021 dsba.ie

Interview

As part of the resettlement phase, they worked with organisations such as the Max Planck Society in order to establish a priority list. While recognising that everyone identified who wanted to leave Afghanistan should be able to leave, they needed to devise a set of objective factors for the purposes of identifying and ordering the members of the group to be evacuated and resettled. As judges, they are familiar with establishing equitable and fair objective standards but doing so in response to this crisis was unprecedented. Fisher informs me that of the 10 female judges and their families coming to Ireland these are mostly representative of the younger cohort where their high priority is to seek to acclimatise to Ireland and its legal community and re-establish their careers insofar as possible. Seven of them have children and most of them have extended family including parents who will accompany them as part of their relocation. Whalen is very appreciative of Ireland’s acknowledgment of the extended family and notes that some other countries, also acting as host states, have taken a narrower view by admitting only a nuclear family comprising parents and children.

Legal Community Response Fisher says that support and encouragement from the legal community is so important and this should also extend to them being informed by colleagues and their community in relation to cultural and societal norms here. Whalen and Fisher commend the legal community in Ireland for its response, particularly in relation to providing housing which is often the number one problem, post-evacuation. The rish legal community has offered up housing for these families, which are currently being vetted and the DSBA has organised (with the assistance of ayes solicitors) to arrange all legal formalities around these house lettings. They were also impressed by the community sponsorship programme which will be implemented and which rests on the notion of a support group to enable their integration and independence as quickly as possible. They say “it is equally important that these judges and their families will be provided with professional development

and support and allowed to continue their studies and use their very impressive skills and knowledge to pursue career opportunities in this country.” owever, more visas and financial aid are now the key and most urgent requirements. A donation page has been set up, the details of which are below, courtesy of the Irish Rule of Law International. The DSBA urges you to make a donation and contribute to this great and unprecedented initiative in allowing the female Afghan judges and their families achieve a successful settlement in Ireland and have the support for their families in relation to housing, education, health and social support. This is an opportunity to showcase to the world at large, the humanitarian and collegiate support of Irish lawyers to our legal colleagues suffering unimaginable loss and distress. It’s also a unique opportunity for us to gain an incredibly talented group as part of our legal community. P https www irishruleo aw ie afghanistan appeal

About the Irish Justice Community Response The Response is represented by a coalition of The Association of Judges of Ireland, Bar of Ireland, Irish Rule of Law and the Law Society, along with support and input of the Irish Refugee Resettlement Programme, and the Irish Red Cross. The coalition came together in late September to advance a number of opportunities to assist, through existing connections with IAWJ and others. The launch, in early October, was endorsed by the leadership of all participating bodies. For those looking to get involved see https://www.lawlibrary.ie/afghanassistance/ or email afghanassistance@lawlibrary.ie

the Parchment 29


Bullying, Harassment and Sexual Harassment in the Legal Profession Diego allagher highlights the findings of a recent Law Society survey following on from a previous survey carried out by the nternational Bar Association and calls for the profession to act now

“T

here should be absolutely no place in this profession, nor any other, for bullies or sexual harassers. At the very least, people deserve dignity and a safe, supportive environment in return for their work.” Female, Law Firm, UAE The above quote is from the nternational Bar Association report titled “ s Too Bullying and Sexual arassment in the Legal Profession.” t succinctly summarises the environment that the solicitors’ profession should demand from its members. The Law Society has released its Dignity Matters survey relating to bullying, harassment and sexual harassment in the solicitors’ profession. The results show that bullying, harassment and sexual harassment exist in the solicitors’ profession and that it needs to take urgent action to eliminate all forms of bullying, harassment and sexual harassment. This 2021 survey follows on from the BA report which was commissioned in 201 . t was the largest ever global survey on bullying and sexual harassment in the profession. early 7,000 professionals from 135 countries responded. The results provided empirical

30 the Parchment

confirmation that bullying and sexual harassment are rife in the legal profession. The report found that approximately 1 in 2 female respondents and 1 in 3 male respondents had been bullied in connection with their employment. t also found that approximately one third of female respondents had been sexually harassed in a workplace context, as had 1 in 14 male respondents. The BA report identified that these issues are ongoing and that there is a chronic underreporting of incidents. The report identified that even when targets report such incidents, workplaces are failing them – official responses are considered insufficient or negligible. ulia illard, former Prime Minister of Australia wrote the forward to the BA report and said – “ t is hard to read this data as anything other than a global cry for change”. t is impossible to convey the power of the BA report in a Parchment article. owever, have extracted two quotes to give you a sample of the issues raised by participants in the survey. “I was advised by the practice manager that if I showed a sexual interest in my principal, he would be nicer to me.


Winter 2021 dsba.ie Diego Gallagher is President of the DSBA. He is a senior solicitor at the Child and Family Agency, Tusla

This was after he had thrown a phone at my head”. emale, law firm, . “My self esteem has drastically dropped. I didn’t eat for two weeks after one incident. It has occasionally made me think of harming myself.” emale, law firm, South Africa. The Dignity Matters survey re ects similar sentiments. “I made it my priority to get out of my profession” “My mental health was so bad, I left my job” “They were in my personal space and touching me too much and inappropriately” was physically ill and my personal life was a ected” The findings of the Dignity Matters survey re ect the findings in the BA report. The survey found that 1 in every 2.9 females and 1 in every 2.3 males who responded had experienced bullying. t found that 1 in every 2.3 females and 1 in every .6 males who responded had experienced harassment. t found that half of female respondents and 1 in every .3 male respondents who responded had experienced sexual harassment. Other key findings are A consistent majority did not report their

Health and Safety

experience of bullying (73 ) or harassment (71 ), with this figure rising to 91 for experiences of sexual harassment, nsofar as respondents were aware, reporting resulted in no sanctions for the persons who engaged in of bullying incidences, 9 of harassment, and 7 of sexual harassment, The most prominent reason provided by respondents for not reporting bullying (70 ), harassment (76 ), and sexual harassment (49 ) was the profile or status of the person who engaged in these behaviours, and Experience of bullying (46 ), harassment (50 ), or sexual harassment (21 ) has contributed to respondents leaving their workplace. t is clear that problems with bullying and sexual harassment exist and have existed for a long time. ndeed, the BA report referenced a survey of female lawyers from 250 S law firms in 19 9 which found that 60 had been sexually harassed. The findings of the Dignity Matters survey should be a cause of great concern to the profession. Bullying and sexual harassment hurt the profession. Bullying and sexual harassment have profound effects. This conduct has direct professional, psychological and the Parchment 31


We should all ask ourselves whether our workplaces have adequate policies in place to eliminate bullying and sexual harassment and to appropriately deal with it when it arises

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financial implications for individual targets. t can cause depression, anxiety and other health issues. ailure to take action to address a culture of sexual harassment and bullying can harm an organisation’s reputation. t is not someone else’s problem or a problem in other countries or professions. t is clear that a lack of will to address these issues hurts our profession and is costly. n addition to the damage caused to an individual’s physical and mental health, problems with staff attrition, client loss and reputational damage are just some of the likely outcomes. While not every experience within the profession can be classified as bullying or harassment, there is a world of a difference between constructive criticism and what constitutes completely unacceptable behaviour. The survey concludes by stating that “A significant level of collective and positive change is required to move from an endemic’ culture of acceptance’ of behaviours that amount to bullying, harassment and sexual harassment to one that promotes, safeguards, and ensures dignity at work, for all members of the profession at all stages in their career.” 1,655 solicitors responded. One can extrapolate from this that many of our 20,000 members on the roll of solicitors will have experienced bullying or sexual harassment in their working life. The findings should be the impetus for clear action by all of us to eliminate bullying, harassment and sexual harassment in the solicitors’ profession. We are the champions of the rule of law and essential to our democracy. We must therefore re ect the highest standards. Aristotle (300 BC) required good moral character’ and British law (1600s) required lawyers to be skilful’ and honest’. The privilege of representing people at their most vulnerable times requires the highest ethical standards. The public rightly expects solicitors to model good character to inspire confidence and trust. Being a fit and proper person is at the heart of what it means to be a member of our esteemed and trusted profession. Our profession prides itself on its collegiality. Bullying and sexual harassment are the very opposite of collegiality. The survey makes ten key recommendations as follows – Raise Awareness and ormalise the Conversation mplement and revise policies and standards ntroduce regular and customised training ncrease dialogue and best practice sharing Take ownership ather data and improve transparency Explore exible reporting models Engage with younger members of the profession Appreciate the wider context Maintain Momentum Respondents were asked to rank from one to five what they think are the most important sectoral measures interventions to prevent and or address bullying, harassment, and sexual harassment. The measure ranked by the most respondents, as well as the measure ranked 1 most frequently, was “Sectoral and high-profile leadership showing ero tolerance stance to bullying, harassment, and sexual harassment and publicly affirming positive workplace behaviours”. There is a need for role models and champions of cultural change. This survey should be seen as a

watershed moment to drive positive change in our profession. Perhaps Principals could put this survey on the top of their management agenda to roll out appropriate awareness and strategy in their firm. This issue should be front and centre of practice management for all firms. t is essential to have policies that are fit-for-purpose, reviewed regularly for effectiveness, accessible and easily used by staff. We should all ask ourselves whether our workplaces have adequate policies in place to eliminate bullying and sexual harassment and to appropriately deal with it when it arises. We should all ask ourselves whether there is sufficient awareness in our workplaces of the standards that are required of all of us. The survey findings demonstrate lack of awareness around the issues related to the behaviours, stemming from lack of information sharing, discussion and training (with 73 of respondents stating that their workplace did not provide information or training). Raising awareness, in conjunction with appropriate training, will give a better understanding of what is and is not bullying and harassment and will normalise the conversation. ormalising conversations on the behaviours may provide support to individuals considering their situation and considering whether to make a complaint. One of the recommendations made was that mandatory CPD (one hour compulsory) around bullying etc and safe working environments be introduced with, at the end, clear instructions of where to find support if difficulties are being experienced. My view is that this is the very least that can be done to start the process of cultural change. The creation of a Dignity at Work strategy for the profession by the Law Society should be another action. Such a strategy should also provide for comprehensive training and guidance for trainee solicitors. The DSBA would be delighted to support the creation of a robust Dignity at Work strategy. Where serious and explicit positions are adopted by leaders, this will promote a filtering down of these standards across the solicitors’ profession. owever, it goes further than leaders taking clear steps to ensure standards are met. All members of the profession should be intolerant of such behaviours and should be empowered to report inappropriate behaviour when encountered. We can also be aware of the very real pressures that we all work under and be prepared to take a few minutes to check in with colleagues and ask “Are you ok ”. The below quote from the BA report re ects that by all of us working together and normalising the conversation that cultural change can be achieved. ‘We have always felt hamstrung in relation to the lack of reports, but now the focus is shifting we hope to play an active part in encouraging reporting, education, and changing cultural norms’ A gap in the data obtained is the absence of data relating to legal executives, secretaries and other workers in the legal services industry. ask that solicitors consider with particular attention how such employees can be supported to address any bullying or sexual harassment issues that they may encounter. The British ouse of Commons Women and Equalities Committee’s 201 inquiry into workplace sexual harassment noted “A recurrent theme of this


Winter 2021 dsba.ie

Health and Safety

inquiry has been a lack of awareness about the extent of sexual harassment Without robust data about prevalence and outcomes, the overnment cannot gauge whether policy interventions, legal changes and enforcement processes are effective in making workplaces safer”. A key point is that the data obtained from this survey will enable the solicitors’ profession to take informed steps for the benefit of its members. A data set is now available that we can use to gauge progress and the effectiveness of interventions in the years to come. t is clear from the Dignity Matters survey that even where there are policies, they are not necessarily having the desired effect. Accordingly, there is a need for more data in years to come in order to inform how this cancer can be eradicated from our profession. or those members of our profession who are currently suffering from, or have suffered from, bullying and sexual harassment want to express my solidarity. The survey outlined that supports are available and are being used. Those who stated that

they did avail of supports were asked to specify what these supports were, with the most common answers being consult a colleague (22 ) and a workplace employee assistance programme (22 ). The DSBA’s Consult a Colleague service has been in operation for decades and remains available to support solicitors. Taking action to implement these recommendations will genuinely make a difference to solicitors. By taking these steps we are individually and collectively vocalising the position that bullying and sexual harassment in the profession is unacceptable. There are compelling moral, ethical and commercial imperatives for the profession to act. The DSBA will support the implementation of the recommendations of this survey and would welcome feedback from our members on how best this can be achieved. ask that DSBA members consider this survey as a positive and proactive opportunity to lead and to support the profession in achieving the change that is clearly necessary. P the Parchment 33


Gearóid Carey is a senior associate at Mason Hayes & Curran LLP solicitors and a member of the DSBA Commercial Law Committee

Litigation

New Superior Court Rules Civil litigation practitioners should be aware that various Superior Courts rule changes wrought by SI 490 of 2021 came into effect on 13 ovember 2021 and will impact on those participating in litigation. Gearóid Carey provides an overview

In relation to motions for default of pleadings, there is now an obligation on the plaintiff or defendant, as the case may be, to issue a 2 -day warning letter prior to bringing an application

34 the Parchment

T

he objective in introducing the changes is to make procedural improvements in High Court applications for orders in default of defence, statement of claim and appearances and to standardise time limits for delivering warning letters and pleadings. Although practitioners should familiarise themselves with the specific changes, a summary of the principal revisions is set out below. However, a significant point to note is that the changes will operate retrospectively to proceedings that have already commenced as well as proceedings that are deemed expired on or before the 13th of ovember 2021. That said, where a period granted under the rule changes are shorter than the current RSC, default cannot be obtained until the longer period expires. n the event of Default of Appearance (Order 13), in order to proceed in the event of default of appearance, notice must be given confirming the intention to do so and the plaintiff must provide a letter consenting to late entry within 28 days of the date of the letter. n a plenary action, a Statement of Claim (Order 20) should be served with the plenary summons, or within eight weeks of service of the plenary summons or within eight weeks of the defendant requesting it after the entry of appearance. Failure to deliver a Statement of Claim entitles the defendant to apply to dismiss the action for want of prosecution. For defendants, the Defence and Counterclaim (if any) (Order 21), shall be delivered within eight weeks of the Statement of Claim. If no Statement of Claim is required, the Defence and Counterclaim is to be delivered within eight weeks from the entry of the appearance. Any third party first mentioned in the proceedings in a Counterclaim shall be added by the defendant to the title of the Defence and the Defence and Counterclaim should be served on that third party. n respect of Default of Pleading (Order 27), a defendant may apply to dismiss the action for want of prosecution if the plaintiff fails to deliver a Statement of Claim within the specified timeframe. The Court

may extend such time period as necessary, but if the extended time period expires and the Statement of Claim has not been filed, an unless order’ shall take effect and the action shall stand dismissed without further application. A plaintiff may issue a motion for judgment in default of Defence if none is delivered within the allotted time, but the Court may extend such time period as necessary. However, if the extended time period expires and the Defence has not been filed, an unless order’ shall take effect and judgment shall be entered without further application. In relation to motions for default of pleadings, there is now an obligation on the plaintiff or defendant, as the case may be, to issue a 2 -day warning letter prior to bringing an application. Any motions relating to the failure to deliver a Statement of Claim or Defence, as the case may be, the motion shall be served on the respondent no later than 10 days from the date it was filed. There is also provision that if the defaulting party (a) serves the relevant document within 21 days of the service of the notice of motion and (b) lodges the document in the Central Office with a certified copy of the notice of motion, not later than 10 days before the return date, the motion shall be struck out and the respondent shall pay 750 in costs to the applicant. Where a judgment or order is obtained, the party which has successfully applied for it shall notify the opposing party within 28 days of any judgment or order being obtained and serve a copy of the order within 28 days from the passing and perfection of such order. Overall, standardised time periods, both for the giving of warnings and delivery of pleadings, is to be welcomed as providing for consistency, but parties should beware the unless order’ implications of failing to comply with an obligation on foot of a motion to deliver the relevant pleading. The new rules mean that certain consequences ow automatically and there is therefore less scope for judicial discretion with regard to the delivery of pleadings. This should mean that the prospect of second and third motions to compel an unwilling litigant to plead will be consigned to history and thus help reduce court motion lists. P


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Ivan Daly (1 May 1967-12 July 2021)

Obituaries are sometimes quite staid, factual memoirs, remembering a person’s life and achievements but not necessarily the person. This will not be one of those. van Daly was my friend, confidant, cycling companion and go-to counsel. e was also a giant of the law library, known and loved by many. This is his story

He had a charisma which was palpable. In the Law Library, his light touch and bonhomie endeared him immediately to clients and colleagues alike

36 the Parchment

I

t was that time of the weekend. You know it well. The part of Sunday where it ceases to be the weekend and becomes the start of the working week. We used to mark this time, more often than not, with two pints while poring over the events of the weekend and predicting what lay ahead for the week. The pub was busy. It was the night of the Euros final and the nation was holding its breath for taly. My standard text to van was met with a simple “ ot this evening. Enjoy the match.” A prosaic response, swiftly delivered. o red ags. Except that the reason for the refusal was absent and would usually be proffered. All would become clear the following morning when his continuing absence eventually delivered the terrible truth. He took his own life. Most people know that but very few say it out loud. t’s ok to say it. t wasn’t his fault. He wasn’t well and he tried to battle his demons but mental illness is a cruel disease. It’s insidious and often invisible to others. And believe me, if it could happen to him, it could happen to anyone. That’s the end of his story, the sad part. The rest is a tale of friendship, love, charisma, success and overwhelming popularity. He was born on Mayday in 1967, the Summer of Love. The world was smitten with love, psychedelia and ower power. ow appropriate that van Daly was born at this time to his wonderful parents, Marcus and Ethel. Marcus Junior and Sharon were already in situ and his youngest brother, Karl joined shortly after. Their upbringing in Dalkey, Co Dublin was one he often talked about. His father, a mercurial and

highly successful Senior Counsel, was his hero. They weren’t much alike as he had inherited more of his mother’s softer characteristics but he adored him. is death five years ago weighed heavily on him. e often visited his grave, where he now lies next to the man he knew as “Pops”. While an outsider might think Marcus was the patriarch in the house, I sense that Ethel was the quiet authority. A lady but strong as nails. e loved his mother more than words could express and she was his last phone call that night. His own family were his pride and joy. He married Susan in 1999. Hugo and Naomi were the result of their love. Like most parents, his face would explode with pride when he talked about them. Even in his darkest days, they would bring a smile and anecdote to the conversation. Susan was the love of his life. o one could hold a candle to her. Like all marriages, they had their ups and downs but they always landed back together in their happy places. Their beautiful house in Rathmines, the same hotel in Mallorca every August and in each other’s hearts. only really knew van well for 10 years but it felt like a lifetime. It started as professional relationship but it quickly became a close friendship. In common with most who met him, I was attracted to his quick wit and his natural warmth. It’s a cliché, particularly when speaking of the deceased, but he genuinely did light up a room when he entered. He had a charisma which was palpable. In the Law Library, his light touch and bonhomie endeared him immediately to clients and colleagues alike. He had a way with judges which few are able to replicate. An air of confidence that emanates from past successes and a belief they will be repeated. If


Winter 2021 dsba.ie

Obituary

you could bottle it and sell it, it would oat on the stock market. This factor could be seen in all van’s pursuits. He was a leading light in VC Beechwood, a local cycling club where he soon became a legendary figure. By his own admission, he was one of the larger mountain cyclists but size simply doesn’t matter when you have the heart of a lion. witnessed at close quarters many practically superhuman feats which had often been fuelled by less than ideal preparation the night before. What was most remarkable though was his universal appeal to an eclectic group of cyclists with wildly differing personalities but all of whom craved his company and some of whom became among his closest friends. It would be remiss to end any tribute without reference to van’s favourite haunt in Ranelagh. Birchalls pub is an institution. It has had many famous sons and daughters but it’s no exaggeration to say he was its favourite child. e swaggered in like he owned the place and in one sense he did. He was its soul. I can still picture him walking in the back door and stopping for a bon mot with the regular deni ens along the way. Everyone got a bit of love, no matter who they were or what they did. In fact, he didn’t care what they did. He had no interest in being a member of a golf club or any exclusive institution where you couldn’t meet people from all walks of life. It would be a rare weekend that a gathering of his closest friends wouldn’t be organised with the question “anyone for a lemonade”. It was usually early, before dinner and enough to settle the issues of the day without straying into the realms of nonsense. t’s fitting that a poem written by his close friend, actor and comedian, Risteárd Cooper, takes pride of place on the wall of his favourite pub. We miss van but his presence is never far away. The pandemic took its toll. is crutches – the Law Library, cycling and Birchalls – were taken from him for long periods and he struggled. It would be too dramatic to say he is another victim of the Covid crisis but it clearly played a significant role. Access to treatment for mental health issues has been scarce. van tried to help himself but sometimes the disease is embedded. The Monsignor at his funeral described his suicide as “a psychological heart attack”. t’s impossible to know if different times would have yielded another outcome but we do know he wasn’t to blame. We miss van every day and probably will for ever more. owever, he left a legacy which has a permanent imprint on the lives he enlightened. Two years after he was born, the Beatles wrote their last song. It was called The End. The last words are “And in the end, the love you take is equal to the love you make”. P Stuart Gilhooly

The Friday Night Pint By Risteárd Cooper In Memory of the Great Ivan Daly N.B. To be recited with the voice and fervour of Uachtarán na h’Éireann Michael D Higgins The text would be sent well before six – lemonade’ question mark – how are you fixed ’ As I’d scan all of Birchall’s and the bar stools mainly there’d be no sign at all of van Daly, he’s not here yet Risteard, what can get you ’ says Graham ‘Heineken’ says I which went without sayin’. Then the shadow at the doorway – stooping, revealing the sparkle, the smile, the twinkle, that feeling the slow, steady stroll, the nods, the hellos the top notch banter that kept us all on our toes. The tilt of the head and a pint of Urquell, t’s riday, it’s van and our world is all well.

or anyone a ected by the issues raised in this tribute please contact the DSBA’s Consult a Colleague helpline in total confidence on 1 or the amaritans on 11 1 the Parchment 37


Complex Regulatory Environment for Solicitors rom initial attendance to opening a file, Susan Martin outlines the many considerations and requirements for solicitors in dealing with a new client

“I

38 the Parchment

f you think compliance is e pensive try non compliance” Former US Deputy Attorney-General Paul McNulty

Professional ndemnity nsurance requirements DPR

Ethical Considerations

A good deal of the practice of law nowadays seems to be about compliance with various rules and requirements, more so than in earlier times. think back fondly to era when we issued our Section 6 letters and collected photo D and proof of address and we were ready for the off. The legal landscape has changed a lot in the past 20 years and the purpose of this paper is to look at and perhaps codify the steps to be taken in moving from an initial call or receiving an email or hosting a first meeting with a client to opening the file and beginning operations on it. have identified seven areas to be examined when taking on work from a client. There is an eighth – dealing with payment – but for the purposes of this paper, have left this aside to focus on the areas that require compliance.

Prior to beginning a case, a solicitor may wish to consider whether there is any ethical issue arising. t may be the case that the matter the client is seeking to instruct you on would cause you a difficulty in terms of ethical conduct – e.g. the client is seeking to use legal advice to perpetrate a fraud; the client intends to enter into an improvident transaction; acceptance of such instructions would cause con ict of interest with another client. These are all matters to be avoided. At the very least it will be obligatory for you to carry out a con ict of interest check and also to ascertain whether you have the necessary time and expertise to represent the client properly. t is not possible to list exhaustively all the issues which could arise but it is a good idea to be on the look-out for potential issues when taking initial instructions.

Ethical considerations AML Section 150 T Cs • Engagement letter

There are some resources to assist with ethical issues which arise in the course of practice. • olicitors uide to rofessional onduct (4th Edition) is about to be published. The guide contains a lot of information and guidance and many queries can

Help is at Hand


Winter 2021 dsba.ie Susan Martin is principal of Martin Solicitors. She is Honorary Secretary of the DSBA

be answered by consulting the guide. Look out for notices about publication. Paper and pdf copies will be made available to solicitors on request. eep an eye on the a ette and Law Society website for further information. uidance Ethics Committee provides support to colleagues. ou can contact the Committee secretary by telephone or write in or email your query. uidance Ethics Committee Practice otes and Ten Steps articles are available on the Law Society website. Of particular interest may be “Ten steps to ethical decisions as a solicitor” DSBA Solicitors helpline is available to all solicitors – 012 4 4 4 Committees of the Law Society and DSBA may be in a position to assist with regard to queries on specific areas of law.

Anti-Moneylaundering Requirements As well as the existing requirements that we as solicitors have pursuant to the AML legislation see Law Society website AML resources for further information , the E 5th AML directive imposes additional obligations on solicitors. A summary of the changes made by the 5th directive are set out below Changes include

Practice Management

Transparency on real owners of companies Transparency on real owners of trusts Transparency on use of pre-paid cards Extending AML requirements to virtual currencies, tax related services and works of art Broadening criteria for assessing high risk countries What does this mean for the individual solicitor Enhanced AML checks Be on the look-out for PEP politically exposed persons and high risk transactions Be aware of Revenue Reporting requirements Prior to accepting instructions solicitors have to consider the risk involved in (a) type of work that they are being asked to undertake (b) involved in dealing with that particular client. There are very comprehensive resources on moneylaundering on the Law Society website. t is worth bearing in mind that solicitors can be audited on their AML compliance by the Law Society through their inspections and also by the Revenue Commissioners.

Section 150 Legal Services Regulation Act 2015

t is worth bearing in mind that solicitors can be audited on their AML compliance by the Law Society through their inspections and also by the Revenue Commissioners

On 7 October 2019, Section 150 replaced Section 6 of the Solicitors (Amendment) Act 1994. This provides the Parchment 39


There cannot be a shortcut taken in respect of this process given that the outcome of failing to carry out such a risk assessment might result in voiding the insurance policy in the event that a claim is made against the solicitor

that a much more complex level of detail is required on the costs to be charged in a case to the client before the provision of legal services. Costs can be difficult to estimate prior to commencing work. or example, when acting for, say, a landlord, the matter might be confined to taking initial instructions, providing some advices and then maybe a detailed letter to the tenant. n another case it may involve the provision of a much fuller legal service including litigation. t is therefore the case that in nearly all files a supplemental Section 150 otice will need to issue to the client. The Law Society website contains very detailed precedents for Section 150 notices dated uly 2021 and this booklet also has explanatory memoranda which can be useful when composing your Section 150 otice. t is worth bearing in mind that the precedents will need to be significantly amended to be tailored to each individual case. Separately, it is also worth bearing in mind the provisions of Section 152 of the 2015 Act which place a further requirement on solicitors to provide a summary of legal work undertaken and set out in detail the costs charged paid. This is roughly equivalent to Section 6 (6) of the 1994 Act but applies to all cases, not just litigation.

carrying out a risk assessment prior to accepting new instructions. have set out below the questions which are contained in the P proposal form.

Terms and Conditions

This shows that a great deal of thought has to go into considering the instructions you have received and assessing the risk involved in taking the work on. There cannot be a short-cut taken in respect of this process given that the outcome of failing to carry out such a risk assessment might result in voiding the insurance policy in the event that a claim is made against the solicitor. t may be worthwhile to take the time to develop a risk assessment tool (maybe a checklist or questionnaire) to ensure that all points are covered for each case taken on.

Terms and Conditions are essential and a good precedent can be found on the uidance and Ethics Committee page on the Law Society website. nclude limitation on liability (Section 4 Legal Services Regulation Act 2015) Essential information for client about how you do things Set out mechanism for resolving complaints nclude details of service level commitment

Professional Indemnity Insurance – Requirements n addition to all of the foregoing, your insurers will also have certain requirements of you in terms of 40 the Parchment

Prior to acceptance of instructions, are new matters subjected to a written risk assessment that is signed off by a Partner or Principal to establish all of the following Whether the matter is within your firm’s capability, capacity and competence Whether the matter has unusual or higher risk factors than normal Whether there is adequate time to complete the work and meet any critical dates Whether any difficult issues relating to the work and or your client are identified, recorded and can be managed Whether following a review of the potential exposure values, your firm’s liability should be capped (where this is appropriate and can be agreed with your client) Whether work will be refused or referred elsewhere where a full duty of care cannot be given, or there are unmanageable con icts, potential con icts or other risks

Letter of Engagement A further requirement of your P

is that you provide


Winter 2021 dsba.ie

Practice Management

a letter of engagement to your client. have taken the below list from the P proposal form Does the engagement letter explicitly state all of the following What work your firm will be conducting for your client (scope of instructions) including specific objectives What your firm will not be doing for clients (that is, limitations to your remit, perhaps based on third party funding restrictions or referral source or other advisor involvement, or your client wishing to limit costs or remit generally) mportant dates and implications if these are missed. What you expect your client to do and by when ow long the matter is likely to take overall The fee basis and how much it will cost in total (to include fees, disbursements, AT and potential for other costs) and, if relevant, details of any feesharing or referral commissions and how this will be accounted for Current terms and conditions of business (which may be a separate document) Where appropriate, notification and information regarding your firm’s limitation of liability under section 26A of the olicitors ( mendment) ct 1 , as inserted by section 44 of the ivil aw ( iscellaneous rovisions) ct , which has been agreed with your client now Section 4 LSR Act 2015 t may be quite difficult to anticipate at the very beginning of a case what precisely will need to be done in terms of the scope of the work. This is similar in a way to the initial Section 150 otice in the landlord and tenant scenario outlined above. t is therefore most likely necessary during the course of the work done on the file that the letter of engagement will require to be updated as the scope of the work changes.

GDPR Considerations

the transaction, on the Section 150 otice this work could be covered under the heading “fees to date”. B. Work on your precedents There are a lot of resources out there to assist you (see above). t is worth spending the time to get your precedents right and use them as a resource in working through the steps to client on-boarding. C.One-third/two-thirds rule The military operate on a one-third two thirds rule in respect of time to be allocated to a matter. That is, of the available time to complete a project, the military will allocate one third of that time to planning. This is a long time but illustrates the importance that they assign to making a plan. Dwight Eisenhower said n preparing for battle have always found that plans are useless but planning is indispensable ” Properly planning out and documenting your process at the beginning of a case will be essential to getting the job done well and ensuring that you can demonstrate compliance. D.Discipline & patience t is important to practise discipline and patience to undertake each of the above steps before beginning the legal work on the file. A short-cut taken at the beginning will show up later on and cause difficulty then. or example, if the Section 150 otice is not issued or issued but is incorrect, your fees will not tax. The pain will be deferred not avoided by failing to take each step as outlined above. t is often the case that we as solicitors will want to start straight away (or even be under some pressure to begin straight away) on the legal work to be done. t is necessary to defer that work and set aside the urge to get stuck in until such time as the client onboarding process has completed. n conclusion, given the complex regulatory environment that we now operate in, it is well worthwhile for solicitors to give serious consideration to the above matters. P

t will be necessary when taking on a client to give them a copy of your data policy covering Privacy and consent Data Access Data Correction Data Export Data Deletion n addition to providing your data policy you may need separate written authority from your client to obtain and retain and process certain sensitive data (e.g. in a medical negligence case, the client’s medical records). f this is the uestion what is the answer A.Be aware of the level of unpaid work required in taking instructions and moving to open a file. Sometimes it might not be possible to recover payment for all of the work outlined above. A colleague recently told me that they had taken initial instructions, taken all of the above steps listed (a process which took between three and four hours) only for the client to decide not to proceed with the transaction. Where the client is proceeding with the Parchment 41


No PIAB Authorisation Required Mark Jones reports that new guidance from the Court of Appeal confirms that there is no requirement for P AB authorisation in defective medical product cases

O

n the 9th November 2021, the Court of Appeal overturned a decision of Ms Justice O’Hanlon in the High Court and confirmed that a personal injuries claim in respect of a defective hip implant that the Plaintiff received during surgery did not require a P AB Personal njuries Assessment Board authorisation prior to issuing proceedings. The proceedings were brought by Joseph Creedon against De Puy International Ltd in respect of two hip replacements manufactured by De Puy which Mr Creedon alleges were defective, causing him injury. Mr Creedon did not make an application to PIAB in advance of issuing personal injuries proceedings and in their Defence, De Puy made a preliminary objection on the basis that Mr Creedon did not obtain authorisation from PIAB prior to issuing personal injuries proceedings. Mr Creedon delivered a reply to the Defence in which he pleaded that his claim came under the exceptions identified in Section 3(d) of the P AB Act 2003, which provides that an authorisation is not

42 the Parchment

required in respect of personal injuries claims “arising out of the provision of any health service to a person, the carrying out of a medical or surgical procedure in relation to a person or the provision of any medical advice or treatment to a person”. Accordingly, his position was that he was not required to obtain a PIAB authorisation in advance of issuing proceedings because his injuries were sustained as a result of receiving the hip replacements during the course of his medical treatment. Ms Justice O’Hanlon heard the matter as a preliminary issue and dismissed Mr Creedon’s claim on the basis of the lack of PIAB authorisation. O’Hanlon J felt bound to follow the decision in urphy v r uy nternational imited, a 2015 decision in which Ms Justice Faherty held against a plaintiff in a similar set of proceedings which also concerned an allegation of injuries resulting from a defective hip replacement. In Murphy, Faherty J held that a claim in respect of a defective hip implant did not fall under the exclusions in Section 3(d) of the PIAB Act 2003 where the claim did not allege negligence in the provision of a health service by the


Winter 2021 dsba.ie Mark Jones is a solicitor on the Lavelle Partners litigation and dispute resolution team

Defendant, but instead sued the Defendant as the manufacturer and supplier of the relevant implant. Mr Creedon appealed the decision to the Court of Appeal, basing his appeal on the principle that the words of Section 3(d) should be given their ordinary meaning. Mr Creedon submitted that his case was plainly for personal injuries arising out of the provision of a health service to him, the carrying out of a surgical procedure on him, and/or the provision of medical treatment to him. Counsel for Mr Creedon submitted that the words in Section 3(d) do not refer to a cause of action, but to a factual situation. In other words, Counsel for Mr Creedon argued that the exception set out in Section 3(d) also applied where a plaintiff was injured during the course of medical treatment, even where the Defendant were not themselves providing a health service. Ms Justice Donnelly delivered the judgment of the Court of Appeal. Having examined the law on statutory interpretation, the Court agreed with Mr Creedon and held that proceedings in respect of an injury sustained during the provision of a health

Personal Injuries

service did come under the exception in Section 3(d) of the PIAB Act 2003. The Court noted that the Oireachtas chose not to specify in the Act that all claims against manufacturers and suppliers of defective products must have a PIAB authorisation, and instead legislated in ordinary language that claims “arising out of ” the provision of a health service are exempt from the requirement to have a PIAB authorisation. Using ordinary language, “arising out of ” refers to actions that are “connected with” or “stem from” the provision of health services, and so would cover the circumstances of Mr Creedon’s claim. This is an important development that practitioners ought to bear in mind when dealing with defective medical product claims in the future. While some practitioners may choose to apply to PIAB for authorisation prior to issuing proceedings in any event, it is important to note that the limitation period for the claim under the Statute of Limitations will not go on hold while the claim is in PIAB because it comes under the exception set out at Section 3(d) of the P AB Act 2003. P

The Court agreed with Mr Creedon and held that proceedings in respect of an injury sustained during the provision of a health service did come under the exception in Section 3(d) of the PIAB Act 2003 the Parchment 43


District Court Scale Costs in Personal Injury Actions Maria Lakes outlines how a Case of “Special Circumstances” was made in a successful application under Order 53 r. 2(2) of the District Court Rules achieving costs in excess of the District Court Schedule of Costs (Scale Costs)

E

arlier this year, wrote an article entitled “Access to ustice but not for the victims of minor personal injuries ” which was published in the Autumn edition of the Parchment. sought to highlight the challenges now faced by the combination of the introduction of the Personal njury uidelines (hereinafter referred to as the “ uidelines”) and the failure to revise the District Court Schedule of Costs (hereinafter referred to as “Scale Costs”) as required by Statute.

Background t was my contention that the victims of minor injuries would find it difficult, if not impossible, to secure legal representation for such claims, in circumstances where the costs of bringing minor personal injuries claims was in fact now prohibitive. This arose due to the quantum as outlined in the uidelines, the structure of the njuries Board process being one for which costs cannot be recovered and due to the failure to revise the Scale Costs no less than once every three years as mandated by statute (Order 53 r. 2(4) of the District Court Rules as amended provides “The Schedule of Costs must be revised no less frequently than once every three years”). The Scale Costs have not been revised since their introduction in 2014. n practice, victims of minor personal injuries, say injuries of up to six months, are now being turned away by legal practitioners. Solicitors cannot accept instructions as such claims are simply unfeasible. urther, barristers often will not accept instructions as 44 the Parchment

they are at risk of non-recovery of all drafting fees, as per the Scale Costs. Therefore, innocent victims’ access to justice is being infringed by the current state of affairs. There is no access to justice without access to legal representation.

Order 53 r. 2(2) of the District Court Rules As part of my analysis in “Access to ustice but not for the victims of minor personal injuries ”, highlighted the provisions of Order 53 r. 2(2) of the District Court Rules as amended, which provides “The Court may, where appropriate in the special circumstances of a case to be specified by the ourt award an amount for costs and or counsel s fees in e cess of the amount provided in the chedule of osts ” t seemed that such applications for special circumstances District Court Costs were not frequently being made in practice and indeed the provision was not widely known.

A Successful Application for Special Circumstances am pleased to share that in October 2021, successfully made an application in a personal injury action under Order 53 r. 2(2) for costs in excess of the Scale Costs. The case involved a fully contested Circuit Court action arising from an accident at work with a likely quantum of at least mid-Circuit Court range. ollowing a full hearing and a finding of contributory negligence, an award was made within the District Court jurisdiction.


Winter 2021 dsba.ie Maria Lakes is a partner at Tracey Solicitors specialising in Personal Injury. She is also head of Wills and Probate at Tracey Solicitors

An application was made for costs to be awarded in excess of the Scale Costs due to the special circumstances of the case which included On the basis of the medical evidence the quantum was far in excess of the award and the case was appropriately prosecuted in the Circuit Court, The case was fully contested and was quite complex in terms of liability, All parties accepted that the case was properly brought in the Circuit Court and no suggestion otherwise was ever made by the Defendants. This application was granted by the Presiding udge who was also of the view that the case was appropriately brought within the Circuit Court. aving had the benefit of hearing the case, the udge fully understood the complexities of the matter. Due to the requirements of Order 53 r2(3) of the District Court Rules, a for mention date was sought and granted to deal with the question of measurement of costs. The udge directed that both parties discuss the matter to see if costs could be agreed. nfortunately, solicitor’s professional costs could not be agreed between the parties, but most outlays, counsel’s fees and engineer’s fees were agreed. The issue of solicitor’s professional costs was determined by the Court on the return date when the work undertaken by the writer as the Plaintiff ’s solicitor was outlined to the Court in full. By way of overview, the writer outlined to the Court as follows The basis upon which the application was made to the Court, the provisions of the District Court Rules as highlighted above. The basis upon which costs are now measured by adjudication in particular the new format of billing by way of Section A – pre proceedings work, Section B – work from commencement of proceedings to trial settlement date, Section C – work carried out during the court of trial settlement and up to determination of proceedings and Section D – post settlement work. The level of work involved in the case at hand, including the time spent working on the matter and the value of same, the circumstances of the case such as number of reports, volume of discovery and motions involved. Comparative cases where the County Registrar assessed Circuit Court Costs for low level Circuit Court cases.

Personal Injury/Costs

Submissions were made as regards the appropriate costs that were sought for the solicitor’s professional fee, motion costs and postages. After hearing submissions on behalf of the defendants the udge measured the solicitors’ costs in respect of professional fee, motion costs and postages in the sum of 12,000 plus vat. mportantly, these costs included the costs of the return date to have the costs measured, which in effect were Section D costs and were measured at 500 plus vat.

Conclusion This case shows a willingness to recognise that Scale Costs are not always appropriate and that the acid test for the udiciary is likely whether the case should rightly have been brought in the District Court rather than whether it ultimately attracted District Court damages. t also serves as a lesson to practitioners that applications must be made to the Court under Order 53 r. 2(2). urther, these applications are likely to be advocated by the solicitors involved in these cases rather than counsel and files for hearing dates should also be prepared for costs adjudication under this provision should the appropriate circumstances arise at hearing. Successful applications under Order 53 r. 2(2) alleviate some of the inequity caused by the failure to revise the Scale Costs as required by statute. t is arguable that the failure to revise the Scale Costs is such that now all cases attracting such costs warrant classification as cases of special circumstances and therefore the Court should measure such costs. owever, this provision alone may not be sufficient to correct the denial of access to justice now resulting from the combination of the uidelines and the neglect of Scale Costs revision. n light of the complex cases the District Court will now be required to deal with, a costs adjudication process may be more appropriate. ndeed, an adjudication process may also be required due to the increased personal injury workload expected at District and Circuit levels. District and Circuit Court udges will not have the capacity to deal with costs hearings after substantive hearings. P

This case shows a willingness to recognise that Scale Costs are not always appropriate and that the acid test for the udiciary is likely whether the case should rightly have been brought in the District Court rather than whether it ultimately attracted District Court damages

the Parchment 45


Legal Terminology In one of last year’s Parchments, Bill Holohan examined the meaning and effect of “Without Prejudice” in correspondence. n this article, the well-known Lee-side practitioner delves into some other legal phraseology and explains their import

“Open” Communications

Without Prejudice Save as to Costs

“Open” communications are the opposite of without prejudice communications and can be referred to and relied on at trial.

This article would not be complete if one does not consider the now common phenomenon of letters and offers sent “without prejudice save as to costs” in modern litigation and arbitrations. There has been an increasing use of such letters in recent years, as costs are a major factor in proceedings. These missives are also known commonly as “Sealed Offers” or “Calderbank Offers”. The latter term is interesting, because, as stated by ox L in Cutts v ead, n fact one thing that was uite absent from alderbank v alderbank was a alderbank o er”. The particular label means that the standard without prejudice protection applies until the court delivers judgment. Once that has occurred, the court will turn to the question of awarding costs. f a letter is “without prejudice save as to costs”, it only enjoys privilege or is “sealed” up to the appropriate time when the court or arbitrator is asked to consider the question of costs (after the award or decision) in relation to the subject of the “Sealed Offer”. The Court or arbitrator is not divested of, but maintains the discretion on the question of costs. owever, such “sealed offers” can be very effective devices for a party to put forward a case that costs in his case do not necessarily “follow the event” and that the special terms as to costs in the “sealed offer” should prevail.

“Off-the-record” and “Confidential” Communications While there are circumstances where correspondence is not expressly stated to be “without prejudice”, it can still be so. t is generally advisable to state clearly when a party intends its correspondence to be without prejudice. Phrases such as o the record” and confidential” are sometimes erroneously used instead of “without prejudice”. There is no authority on the status of the words “off-the-record”, although the ordinary principles of contract and confidentiality may govern the situation, i.e. the parties have agreed that the words are to be kept confidential. owever, this in itself will not promote the correspondence to the level of privileged (Santa e nternational Corp -v- apier Shipping S.A. 19 5 LT 430.) so caution must be exercised in using the words o the record” and confidential”. Parties should avoid the use of these two expressions if what they actually mean is without prejudice. More importantly, a confidential” or o the record” exchange (if not protected by any other means) may well be disclosed and may be used before a court. 46 the Parchment


Winter 2021 dsba.ie Bill Holohan is principal of Holohan Law, Cork. He is a council member of the Law Society

The courts have a wide discretion to order one party (the paying party) to pay the legal costs of its adversary (the receiving party). The courts operate on a “loser pays” principle (Order 99 of the Rules of the Superior Courts) typically, the receiving party will be the party which succeeded at trial. owever, the court is entitled to look at the content of without prejudice save as to costs communications for the limited purpose of deciding the extent of the costs order it makes. Accordingly, without prejudice save as to costs correspondence may be used by a party to apply costs pressure on the other side as, if it puts that party in a favourable light, it can use it to support an argument for a more favourable costs award. So, for example, even if a defendant loses at trial, evidence of an offer as or more favourable than that awarded by the court to the claimant may result in the defendant being awarded a portion of its costs notwithstanding the claimant’s success at trial. This device is closely associated with, but different from, lodgement tender offers which have their own procedural requirements. pon an eventual award of damages being less than the sum stated in the “Sealed”, the usual argument put forward in relation to cost is that, at least from the date the offer was made, the legal costs incurred were totally unnecessary, since the plaintiff claimant could have then got everything he wanted without a contest.

Lexicology

A concise treatment of this subject, (in relation to arbitrations at least), can be found in the judgment of Donaldson in Tramountana Armadera SA v Atlantic Shipping 197 2 AER 70. A respondent’s offer of settlement has been referred to as an “open offer”, is a misnomer. Offers of settlement in arbitral proceedings can be of three kinds, namely “without prejudice”, “sealed” and “open”. A “without prejudice” offer can never be referred to by either party at any stage of the proceedings, because it is in the public interest that there should be a procedure whereby the parties can discuss their differences freely and frankly and make offers of settlement without fear of being embarrassed by these exchanges if, unhappily, they do not lead to a settlement. A “sealed offer” is the arbitral equivalent of making a payment into court in settlement of the litigation or of particular causes of action in that litigation. either the fact, nor the amount, of such a payment into court can be revealed to the judge trying the case until he has given judgment on all matters other than costs. As it is customary for an award to deal at one and the same time both with the parties’ claims and with the question of costs, the existence of a sealed offer has to be brought to the attention of the arbitrator before he has reached a decision. owever, it should remain sealed at that stage and it would the Parchment 47


Privileged information is normally information only one party has and is seeking to withhold from being disclosed to the other, while without prejudice correspondence is information that has passed between both parties in the course of negotiations and is therefore known to both parties

be wholly improper for the arbitrator to look at it before he has reached a final decision on the matters in dispute other than as to costs, or to revise that decision in the light of the terms of the sealed offer when he sees them.

When can Without Prejudice Material be Used There are certain exceptions to the without prejudice rule the rule is not absolute and resort may be had to without pre udice material for a variety of reasons when the ustice of the case re uires it ” (Rush Tompkins Ltd -v- reater London Council 19 9 AC 12 0). These exceptions are set out in various authorities, but it is useful to look at nilever v The Procter amble, and Rush Tompkins in which lists of the exceptions are conveniently set out. t must be borne in mind that in certain situations where these exceptions kick in, it is not the content of “without prejudice” negotiations but the fact that they took place which is admissible and material. The notable exceptions include (a) Where the issue is whether the “without prejudice” communications had resulted in a concluded compromise settlement. (b) Where it was admissible to show that an agreement apparently concluded between the parties during negotiations should be set aside on the ground of misrepresentation, fraud or undue in uence. (c) Where a statement might be admissible as giving rise to an estoppel. (d) Where the exclusion of the evidence would act as a cloak for perjury, blackmail, threat or other unambiguous impropriety. (e) Where the evidence is admissible in order to explain delay or apparent acquiescence, for instance, in applications to strike out proceedings for want of prosecution. (f) t has been held that, evidence of “without prejudice” negotiations was not admissible in applications for security for costs. (g) Where in an action for negligence, the evidence was admissible to show that the Claimant had acted reasonably to mitigate his loss in his conduct and conclusion of negotiations for the compromise of proceedings brought by him against a third party. (h) Where the evidence was admissible as being an offer made “without prejudice save as to costs.” (i) n matrimonial cases, a distinct privilege extending to communications received in confidence with a view to matrimonial conciliation. (j) “Without prejudice” communications which are an election between two mutually inconsistent alternative courses of action. (k) Where the communication is an act of bankruptcy. (l) or handwriting authentication.

Acceptance of a Without Prejudice Settlement Offer The ordinary principles of contract law apply to agreements reached as a result of without prejudice negotiations and so as soon as an offer is accepted, a binding contract comes into being. f the existence and terms of a settlement are disputed, the content of the negotiations is admissible for the purpose of determining whether a settlement agreement has been concluded and on what basis. 48 the Parchment

t was unclear as to whether the courts would permit evidence of without prejudice exchanges to be relied on where there is a dispute as to the proper interpretation of the settlement agreement. The decision of the Supreme Court in Oceanbulk Shipping Trading SA -v- TMT Asia Limited and 3 others 2010 SC 44 has now confirmed that without prejudice evidence will be admissible in such circumstances. “Without Prejudice” negotiations are now admissible to the Court when the Court considers the construction of an Agreement. Parties to Settlement Agreements must ensure the terms are clearly defined and understood. Minutes of any meetings during settlement negotiations should be recorded to assist the Court with its interpretation. Whilst the “Without Prejudice” rule could be seen to be weakened, only information that resolves an ambiguity in a Settlement Agreement is admissible. Parties should still attempt to settle wherever possible and as the recent Court of Appeal case, Rolf v De uerin 2011 showed, the Courts will penalise parties should they decide not to mediate when involved in litigation.

Waiver by Mutual Consent The without prejudice rule is a joint protection. This means that it can only be waived jointly by all of the parties to the relevant without prejudice communication.

Privileged Information Without prejudice correspondence should not be confused with privileged information. There is a distinct difference, not least because privileged information is normally information only one party has and is seeking to withhold from being disclosed to the other, while without prejudice correspondence is information that has passed between both parties in the course of negotiations and is therefore known to both parties. Without prejudice correspondence is more akin to a quasi-privilege as it could be classified as belonging to the laws of contract based on an implied agreement between the two parties to protect communications from disclosure. The Court of Appeal in Somatra -v- Sinclair Roach Temperley 2000 1 Lloyd’s Rep 311 described the “without prejudice” principle in this way in its transcript of 26 uly 2000. Master Clark ( ) considered the law on disclosure of without prejudice communications in his decision in EMW Law LLP v Scott alborg 2016 EW C 2526 (Ch). e concluded that, where the documents were relevant to an issue in dispute, they could be admitted into evidence even though they were subject to without prejudice privilege, because appropriate arrangements could be made to ensure there was no prejudice to the parties who owned the privilege, meaning there was no public policy reason to refuse admission of the documents into evidence.

Subject to Contract ub ect to contract” is used to denote that an agreement is not yet binding. A document labelled “subject to contract” will not, in the ordinary course, be subject to without prejudice protection. owever, in circumstances where you are in negotiations and therefore want the without prejudice protection but want your offer of settlement to be the subject of


Winter 2021 dsba.ie

Lexicology

further discussion as opposed to being fully binding on acceptance, you should also head the letter sub ect to contract” or sub ect to final written agreement”. That is a clear indication to the other side that any settlement offered or discussed is still subject to the drawing up of formal, written, agreed terms. But these two labels achieve completely different things and should not be confused.

Loss of Privilege A situation where without prejudice protection was lost arose out of a failed mediation ( all Another -v- Pertemps 2005 EW C 3110). The defendants brought a second action alleging that the first claimant had told a third party that threats had been made against him during or after the mediation. The question was could the threats be referred to in the main action or were they covered by without prejudice protection The court held that ordinarily without prejudice protection applied to allegations of threats made in mediation. owever, in these circumstances

both parties would be deemed to have mutually consented to waive without prejudice protection ordinarily ascribed to the mediation because the defendants had denied in their pleadings that any threats had been made. This is of particular concern to the defendant party as any response to publicly-made allegations arising out of protected subject matter may be interpreted as consent to waive that privilege. f they had simply submitted that anything said in the mediation was covered by the without prejudice protection, they would not have waived the without prejudice protection.

Third Parties The ouse of Lords in Rush Tompkins decided that “without prejudice” communications were also inadmissible in any subsequent litigation in connection with the same subject matter; that admissions made to reach a settlement with a different party in the same litigation were also inadmissible, whether or not settlement was reached with that party; and that the Parchment 49


There is a line to be drawn and using the without prejudice label will not give a party “carte blanche” to be dishonest

50 the Parchment

the general policy that applied to protect genuine negotiations from being admissible in evidence also applied to protect those negotiations from being disclosed to third parties. n The Stax Claimants v The Bank of ova Scotia Channel slands Limited and ors 2007 EW C 143 (Ch) the case concerned the nature of the discussions themselves and the extent to which the privilege could apply to discussions about tactics in litigation. n approaching the rule from a slightly different angle, Mr ustice Warren rejected the claimants’ invitation to extend the rule to confidential discussions concerning proceedings generally. Adopting a similar approach to the court in ramlington roup Plc and A A ramlington roup Limited v an Barnetson (Court of Appeal, 24 May 2007), he acknowledged the public policy underpinning the rule, and found that privilege covered only genuine settlement discussions. The issue that occupied the Court of Appeal in this case was whether, and in what circumstances, documents created prior to the threat of litigation may be classified as without prejudice. ollowing five-months of discussions, a draft compromise agreement was prepared in ovember 2005 marked without prejudice’. n December 2005, those negotiations broke down and Mr Barnetson threatened proceedings. e was subsequently dismissed and commenced litigation in April 2006. At trial, reference was made in some of the witness statements to the without prejudice negotiations and draft compromise agreement. The question before the court was how proximate the negotiations had to be to the start of litigation to attract the privilege. The Court of Appeal, per Lord ustice Auld found that the key was the subject matter of the dispute rather than how long before the issue of proceedings it had been aired. Endorsing the public policy behind the privilege, he held that the crucial consideration was whether in the course of their negotiations, the parties had contemplated or might reasonably have contemplated litigation if they could not agree a compromise. e questioned whether the parties would have lowered their guards at the time if they had not thought or hoped that through negotiating, they could avoid the need to go to court and he found that in their negotiations both parties were clearly aware of the possibility of litigation. Their discussions were therefore without prejudice and inadmissible in evidence. The claimants in the case had sued the Bank of ova Scotia for losses they incurred as a result of the transfer of certain benefits under a -approved occupational pension scheme to an offshore scheme. n denying liability, the bank argued that the claimants had retained and relied upon advice from their own independent financial advisers ( As) and not them. The bank brought third-party proceedings against the As. A without-prejudice meeting took place in October 2006 between the lawyers representing the claimants and the As. The purpose was described as to form a “battle plan”, to discuss the proceedings generally and explore the common interest between the parties in establishing that the bank could not avoid responsibility entirely. The bank sought disclosure of the agenda for the meeting and attendance notes

of the meeting, as well as correspondence between the legal advisors for the claimants and the financial advisers. The claimants argued that the meeting was “without prejudice”, as were the documents surrounding it. Warren . Rejected the claimants’ contentions. e analysed the communications, finding that the rule covered only genuine settlement discussions aimed at avoiding litigation by settling disputes. e made it clear that, in his view, to extend privilege to confidential discussions would not further the public interest. e also indicated that as a matter of practice in considering the issues of disclosure, each document should be considered individually and that privilege, including without prejudice privilege, should not simply be claimed for a wide class of documents. (As an aside, he found the battle plan, merits and tactics were likely to be covered by litigation privilege in any event.)

Impropriety Protection will not be afforded to supposedly without prejudice communications which, if revealed, would show that a party was pleading patently untrue facts or making false statements. f the words used demonstrate that the party is pursuing a dishonest case or committing a criminal or fraudulent act, then the communication will be admissible as evidence (See for example awick ersey nternational Ltd -vCaplan Times, 11 March 19 ). owever, the Courts treat the without prejudice veil with some respect and the principle made clear in Court of Appeal judgments ( nilever Plc -v- Proctor amble Co 2001 1 All ER 7 3) is that in order to lift it unambiguous impropriety” must be shown. This involves conduct which is in some way oppressive or dishonest or dishonourable ” The Courts recognise that, in practice, negotiations often involve a certain amount of posturing and accept that a party may adopt a position in without prejudice discussions which is inconsistent with its open position. owever, there is a line to be drawn and using the without prejudice label will not give a party “carte blanche” to be dishonest.

Evidence as to the Reasonableness of a Settlement Where one party (Party A) settles a dispute with another and then tries to recover all or a portion of the settlement monies paid from another party (Party B), Party B will almost inevitably argue that, whatever the merits, Party A has settled at an unreasonably high figure. n those circumstances, the substance of without prejudice discussions may be held to be admissible as evidence in subsequent proceedings to establish the extent to which Party A had discharged its duty to mitigate its losses (Muller -v- Linsley Mortimer 1996 P LR 74).

Delay Evidence of without prejudice negotiations could be given in order to explain delay in progressing the litigation or apparent acquiescence, for example when defending an application to strike out for want of prosecution ( nilever plc -v- The Proctor amble Co 2000 1 WLR 2436). P


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New Law en route for Scooters Leo Moore and Andrew Desmond review the new Road Traffic and Roads Bill 2021 which will legislate for the use of Scooters

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he overnment has published the Road Traffic and Roads Bill 2021 (the “RTR Bill”) which legislates, for the first time, for the use of e-scooters and e-bikes on rish roads and public spaces. The number of e-scooters on rish roads has increased drastically in recent years, with retailers in Dublin city centre reporting sales of over 120 e-scooters a month. The country has seen a similar surge in e-bike use, with retailers reporting a 20 year-on-year increase in sales over the past few years. The clarity brought by such legislation could pave the way for micro-mobility operators to introduce new transport solutions to rish cities.

Emerging Market This surge in demand has come even despite e-scooters and e-bikes having an unusual status under the Road Traffic Offences Act 1961 (the “RTA”). Such vehicles arguably fall within the definition of a mechanically propelled vehicle (“MP ”) under the RTA, as “a vehicle the means of propulsion of which is electrical or partly electrical and partly mechanical”. A driver of an MP is required to have a licence, tax and insurance, and cannot use an MP on a footpath. owever, it has not been possible to obtain tax or insurance for e-scooters and e-bikes for use in a public place. Also, the initial manual effort required on such vehicles casts some doubt on 52 the Parchment

whether these vehicles are fully within this scope. As a result, private users of e-scooters and e-bikes have been operating in a grey area.

New Rules on E-Scooters The RTR Bill will bring welcome clarity to the law on e-scooters. The initial draft introduces a new defined term, “powered personal transporter”, being a vehicle designed for carrying one person; with its maximum design weight as no more than 55 kilograms; its maximum design speed between 6kmph and 25 kmph; equipped with an electric motor having a maximum continuous rated power less than or equal to 0.25 kilowatts; and which is not a pedal bicycle, pedal tricycle, or designed for people with restricted mobility. This definition will clearly encompass e-scooters. Most importantly, “powered personal transporters” (“PPTs”) are excluded from the definition of MP s and will be generally subject to the same rules as apply to bicycles. The Minister for Transport will be able to prohibit, or restrict the use of, PPTs in traffic through regulation. Powers will be granted to local authorities to set a lower 20km h speed limit for e-scooters on specified roads or parts of roads. The RTR Bill also


Winter 2021 dsba.ie Leo Moore is a partner in the William Fry Technology Group Andrew Desmond is an associate in the William Fry Technology Group

explicitly allows for their use in cycle lanes. They will be banned for use on footpaths and motorways, while users will also be exempt from toll schemes. Drivers aged between 16 and 1 will be required by law to wear a helmet, although helmets will not be compulsory for adults. The RTR Bill also sets out several new offences in relation to PPTs. These include driving a PPT while hold ing on to any other vehicle which is in motion or hold on to any person or thing on in or attached to any such vehicle”; supplying a PPT to someone who is under 16; driving a PPT while using a mobile phone or other information or “entertainment equipment”; driving a PPT while there is a defect affecting it which one knows of or could have discovered and which is a danger to the public; taking a PPT without the consent of its owner; and driving under the in uence of an intoxicant to such an extent as to be incapable of having proper control. Due to the exclusion of PPTs from the framework that operates for MP s under the RTA, their use is permitted without imposing the registration, tax, licencing, and insurance conditions associated with conventional motor vehicles. The RTR Bill does not introduce any new such

Road Traffic Law

obligations on PPTs and amends the inance Act 1992 so that there is no requirement to register and tax PPTS.

New Rules on E-Bikes The RTR Bill also updates the definitions of pedal bicycles and pedal tricycles to include those equipped with auxiliary electric motors with a maximum rated power less than or equal to 0.25 kilowatts, which cut off before the vehicle reaches 25 kilometres per hour, thus incorporating “e-bikes” within this definition. E-bikes will now be legislated and treated mainly in the same way as pedal cycles (and are also exempt from registration and tax requirements). The usual rules, such as stopping at traffic lights, stopping at pedestrian crossings and stop signs, and avoiding cycling on motorways, now apply to e-bikes. The RTR Bill also amends Section 100 of the RTA to make it an offence to ride a pedal bicycle while holding on to another moving vehicle.

E-bikes will now be legislated and treated mainly in the same way as pedal cycles (and are also exempt from registration and tax requirements)

Conclusion t should be remembered that the RTR Bill is not yet law and we may see significant revisions before it is signed into law. evertheless, it will be welcomed by suppliers and riders alike, and particularly micro-mobility operators eager to introduce new transport solutions. P the Parchment 53


Commercial Tenants and Covid-19 ackie Buckley and Matthew Austin review a recent case where the High Court considered a petition to wind up a commercial Tenant in the context of Covid-19

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hen we look at the implications of Covid-19 on existing Landlord and Tenant relationships, in many cases, Landlords and Tenants have voluntarily adapted their respective positions in order to aid the survival of their businesses throughout the pandemic. In other situations, the relationship has broken down and there have been attempts to deal with the matter via the Courts. One such option is the ability under Section 569 of the Companies Act 2014 for a petitioner to ask the igh Court to make an order winding up a Company if it is unable to pay its debts. This very issue arose in the recent igh Court decision of Butler . in the Matter of Lestown Property Limited and In the Matter of the Companies Act 2014. n this case, Butler refused a winding up petition brought against a Tenant Company (the “Tenant”) by its Landlord for unpaid rent highlighting the Court’s reluctance to make an order winding up a company for the non-payment of a debt, where the circumstances are attributable in part to Covid-19 restrictions.

Relevant Facts The dispute arose over non-payment of rent by the Tenant who operated a Leisureplex in Charlestown Shopping Centre (the “Premises”) pursuant to a 25-year lease entered in to on 25 ovember 2015 (the “Lease”). The Tenant had not paid any rent or service charge that had become due under the Lease since the 54 the Parchment

introduction of restrictions on public health grounds on April 2020. The restrictions due to the Covid-19 pandemic required that the Tenant remained closed for significant periods of time or placed a limit on the number of people that could be present at the premises. It was complicated further by virtue of the fact that the Premises was accessed via an adjoining Cinema, which also remained closed. It was claimed by the Petitioning Landlord that €338,572 was owed in unpaid sums, although at the date of formal demand, the amount was only 153,233.75. While the Tenant acknowledged it had not paid the rent and service charge, it relied on certain rent and service charge suspension provisions in the Lease. The Court did not have to reach a definitive conclusion on this particular argument in order to determine if it would grant the order. The Landlord petitioned the Court to grant the winding up order because the Tenant was unable to pay its debts. The Tenant argued that because of established case law, where there is a bona fide dispute regarding liability for the debt claimed, the Court should not make an order winding up the company.

Ruling The Court held that its task was firstly to ascertain whether there was a bona fide and substantial dispute as to the company’s liability for rent and service charge and secondly, could the Petitioner satisfy one of the grounds under the relevant provisions in the


Winter 2021 dsba.ie Jackie Buckley is a partner and Head of Property at Hayes Solicitors. Matthew Austin is a partner in the Commercial and Business team at Hayes Solicitors

Companies Act 2014 to wind up the Company. The Court further noted that it always had an overriding discretion to refuse a Petitioner’s application. On the facts of this case, the Court determined that there was a bona fide dispute on substantial grounds regarding liability for the debt claimed. Butler noted that when these matters are finally determined, the Tenant may or may not succeed in establishing that it does not owe the sums claimed by the Landlord. owever, there was sufficient merit in the arguments raised by the Tenant, and she rejected the petition brought by the Landlord. She was not prepared to deem the Tenant unable to pay its debts. nterestingly, Butler in her judgment stated even if she was satisfied that the Tenant should be deemed unable to pay its debts, the Court would still have discretion as to whether a winding up order should be made. n particular, she was in uenced by the fact that the Tenant had lodged the amount of the statutory demand with its solicitors. She believed that this indicated that that amount of money was available to pay the debt. She noted that the debt remained unpaid, not because the Tenant did not have the resources, but because it disputed its liability to pay. She was heavily in uenced by the fact that the events leading to the dispute were outside of the control of both parties. Butler acknowledged the economic impact on both businesses due to the pandemic and said that winding up a company “without affording it the opportunity to rely on the terms of its existing contracts even where the meaning and impact of those

terms in light of the legal restrictions is disputed, is a drastic solution.” Importantly, the Court made it clear that it was not in its determination, attempting to predict how liability for the economic consequences be dealt with. In particular, she noted that it was not as straightforward as saying that if the Tenant was wound up, that the Landlord would be able to relet the Premises to another tenant. Any other tenant taking possession would face exactly the same restrictions. n particular, she took in to account the fact that at no stage prior to the pandemic had there been a suggestion that the Tenant had ever been in arrears of the sums due under the Lease, nor was it an undesirable Tenant.

Conclusion ow that the economy is reopening, it will be interesting to see how the Courts will deal with a Tenant who continues to withhold rent and other payments due under their Leases. One can certainly say that we will see greater enthusiasm on the part of Landlords to bring arrangements with their Tenants back in to order as soon as they possibly can. owever, the Lestown case is a demonstration of the Court’s reluctance to allow petitions for the winding up of a company to be used as a debt collection mechanism. Landlords would be well advised to consider a range of options before invoking Section 569 of the Companies Act 2014 in relation to a tenant who has fallen into arrears of rent during the currency of the public health restrictions and or lockdowns. P

Landlord & Tenant

She noted that the debt remained unpaid, not because the Tenant did not have the resources, but because it disputed its liability to pay

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Significant Supreme Court Decision on Whistleblower Protection The Supreme Court recently had its first opportunity to comment on the Protected Disclosures Act 2014 (the “Act”). Terence McCrann and David McCauley say the judgments in the case should be carefully considered by those dealing with protected disclosures What is a Protected Disclosure? A protected disclosure under the Act is defined as a disclosure of ‘relevant information’ made by a worker in the manner specified. ‘Relevant information’ is such if, in the reasonable opinion of the worker, it tends to show ‘relevant wrongdoing’ and came to their attention in connection with their employment. Among the matters defined as ‘relevant wrongdoings’ are, for example, failure to comply with a legal obligation, or danger to the health and safety of any individual.

Baranya v Rosderra Irish Meats Group Limited In brief, the complainant in the case had been a butcher employed in a meat factory whose work involved ‘scoring’ a high volume of animal carcasses each day. He claimed that he was dismissed as a result of indicating that he was in pain arising from his work and seeking a change in his role. His employer however argued that he had not indicated that his pain arose from his work and was dismissed for having walked off the production line without allowing management to address his request. Before the Labour Court, the complainant sought to challenge his dismissal on the grounds that it amounted to penalisation under the Act. However, the Labour Court decided that the communication in question did not constitute a protected disclosure ‘because it did not disclose any wrongdoing on the part of ’ the employer and that the communication in question ‘was in fact an expression of grievance and not a protected 56 the Parchment

disclosure’. This decision was upheld by the High Court and appealed to the Supreme Court which has now remitted the case to the Labour Court.

The Scope of the Legislation Hogan J in the Supreme Court commented that while there were indications in the Act that the legislature had sought to exclude from its ambit complaints which relate to the worker’s contract of employment, these were anomalous. He commented that ‘many complaints made by employees which are entirely personal to them’ could amount to protected disclosures, including complaints by an employee that his or her own personal health or safety is endangered by workplace practices. He noted that it was implicit in the Long Title of the Act and in some of its terms that the legislature had envisaged that most complaints under the Act would relate to matters of general public interest, however the Act is not so confined. The Court noted that the Code of Practice on Protected Disclosures (the “Code”) refers to a distinction between protected disclosures and grievances (the latter said to be specific to the worker ) and that it appeared that the Labour Court had been in uenced by this consideration, notwithstanding that no such distinction is drawn by the Act. Hogan J noted that the Code therefore did not accurately re ect the terms of the Act and misstated the law. This, he said, led the High Court into error in reaching the conclusion that a purely personal complaint regarding workplace health or safety essentially fell outside the scope of the Act.


Winter 2021 dsba.ie Terence McCrann is a partner and Head of the Dispute Resolution and Litigation Group at McCann Fitzgerald. David McCauley is an associate in the McCann Fitzgerald Employment Team

aving clarified the law, the case was remitted to the Labour Court to determine if the utterances here did, in fact, amount to a protected disclosure. In conducting this assessment, Hogan J stated that words cannot be taken purely in isolation as there was a context of the complaints which had been made by Mr Baranya in the months which preceded his dismissal’. On one view, the complaint that he was in pain could, he proposed, only realistically be linked to (an implied) complaint in respect of workplace health and safety. Organisations should, therefore, be alive to the possibility that a protected disclosure will arise where complaints, although in the nature of a personal grievance, raise workplace health or safety concerns, whether expressly or by necessary implication.

Conclusion The case re ects the difficulty that organisations experience in understanding when a protected disclosure has been raised. This difficulty is likely to be compounded when, in the coming months, the Whistleblowing Directive is transposed in Ireland, and the Act amended accordingly, giving rise to enhanced obligations on organisations regarding the processing of such disclosures. The Code is likely to require amendment in light of the judgment. nterestingly, the eneral Scheme of the Protected Disclosures (Amendment) Bill which is intended to transpose the Directive provides, in line with the Directive, that a matter is not a relevant wrongdoing if it concerns ‘interpersonal

grievances e clusively a ecting the reporting person namely grievances about interpersonal con icts between the reporting person and another worker and the matter can be channelled to other procedures designed to address such matters.’ The concurring judgment of Charleton in the Supreme Court notes that the protection of personal and public interests under the Act “does not conform with what the ordinary understanding of the protection of whistleblowers re uires and furthermore it may not be sensible” and suggested that it would be sensible to confine ordinary and personal workplace complaints to the existing laws enforcing safety rather than the “extreme protections attendant on” the Act. This view is likely to be shared by many organisations with experience of protected disclosures. Indeed, the equivalent legislation in England was subject to an amendment in 2013 as a result of which qualifying disclosures require not only the reasonable belief of the worker but also a reasonable belief that the disclosure is made “in the public interest”. The case is likely to prompt renewed discussion on the scope of the Act at a time when amending legislation is already being drafted as a priority for the purposes of implementing the Directive. The Minister for Public Expenditure and Reform recently indicated that such legislation can be expected in the first quarter of 2022. n the meantime, organisations should be mindful of the broad circumstances in which the protections of the Act may apply. P

Litigation

This difficulty is likely to be compounded when, in the coming months, the Whistleblowing Directive is transposed in Ireland, and the Act amended accordingly, giving rise to enhanced obligations on organisations regarding the processing of such disclosures the Parchment 57


Dearbhla Considine is a Professional Support Lawyer at Arthur Cox

Conveyancing

Clarification of the Law on Prescriptive Easements and Profits à Prendre Dearbhla Considine notes that major changes to the law on prescriptive easements and profits prendre came into effect on the 30 ovember 2021, following the enactment of the Land and Conveyancing Law Reform Act 2021 on 26 ovember 2021

D

ifficulties with the new regime for the acquisition of prescriptive rights introduced by the Land and Conveyancing Law Reform Act 2009 (the “2009 Act”) and the end of the transition period on 30 ovember 2021 caused significant concern amongst property lawyers and lenders, where access to or use of property relied on prescriptive rights. The Act averts the statutory deadline by repealing the changes introduced by the 2009 Act and seeks to address some of the legal issues around the acquisition and registration of prescriptive rights. Whilst the Minister for ustice originally proposed extending the statutory deadline by six years, this provision does not appear in the Act. Rather, the Act repeals Sections 33 to 39 of the 2009 Act altogether and sets out new rules for the law on acquiring and validating prescriptive rights.

How will Prescriptive Rights be Acquired post-30 November 2021? Claims will be decided under the common law ‘doctrine of lost modern grant’ (which requires a 20 year prescriptive use period), pending a more comprehensive review of the law in this area (which the Minister has committed to carrying out). This means that proof of the existence of a prescriptive right will revert to the use of statutory declarations in support of good marketable title where there is an undocumented right that has been relied upon for a significant period of time. A longer use period will be required for the acquisition of prescriptive rights against State-owned land (including foreshore) after 30 ovember 2021; 30 years for land owned by a State authority and 60 years for foreshore.

What about Prescriptive Rights Acquired pre-30 November 2021? Claims based on user periods completed before 1 December 2009 will be decided in accordance with the law that applied before that date, i.e. based on the ‘doctrine of lost modern grant’, common law prescription or statutory prescription under the Prescription Act 1 32. Applications (to court, or to the Property Registration Authority (“PRA”)) to validate or register prescriptive rights that are currently pending will not be affected by the changes contained in the Act.

Comment Whilst clarification of the uncertainty in relation to the legal changes set out in the 2009 Act is welcome, the measures set out above may cause concern for landowners because validation of prescriptive rights by way of a court application or registration with the PRA will be optional (as it was before the 2009 Act), rather than a mandatory requirement to avoid losing any rights acquired through long use. owever, those who rely on prescriptive rights, including statutory undertakers, will welcome the fact that registration is no longer required, given the well-documented issues with the PRA registration process. P 58 the Parchment


Winter 2021 dsba.ie Grainne Tiernan is an associate in the Planning and Environmental team at Mason Hayes & Curran

Planning

Good News for Developers Grainne Tiernan reports that new legislation will permit further extensions to Planning Permissions due to Covid-19 shutdowns

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ection 7 of the Planning and Development (Amendment) Act 2021 o. 1 of 121 (2021 Act) came into operation on 9 September 2021. t provides developers with the opportunity to apply, on a temporary basis, for further extensions of planning permission previously extended, by a period of up to two years or until 31 December 2023, whichever first occurs. The general scheme of the Bill, which had been approved in May, had originally provided for a single year of further extension. However, following further consultation, an extension of up to two years, subject to a sunset clause of 31 December 2023, was considered appropriate. This was considered to be a reasonable period to respond not only to the direct delays to construction work caused by the Covid-19 pandemic, but also to re ect the possible additional disruption to logistics, supply chains, and availability of personnel when trying to get construction work restarted after the shutdowns of building sites over the past year. To be eligible to further extend the life of a planning permission, the developer must: • Set out the reasons why the relevant development cannot be reasonably completed within the relevant period • Provide evidence that an environmental impact assessment or an appropriate assessment would not be required in relation to the proposed extension • Demonstrate that the proposed extension is required to enable the relevant development to be completed • Show that the application for the proposed extension is compliant with Planning and Development Regulations, as amended by the 2021 regulations, and • Demonstrate that the relevant development has been commenced, and substantial works have been carried out before the expiration of the relevant period. To avail of the extension, an application must be made to the relevant planning authority showing that the development to which the permission relates can fulfil the above criteria. The planning authority must grant an extension if it is satisfied the requirements have been met. f the planning permission expired between anuary 2021 and 9 September 2021, the

application must be made within six months of 9 September 2021. f the planning permission has not expired on 9 September 2021, the application must be made no earlier than one year before its expiry. The Planning and Development Acts generally prohibit the appropriate period of a planning permission being extended more than once i.e. the period in which a development can be carried out. However, the new legislation introduced to facilitate strategic housing developments, the Planning and Development ( ousing) and Residential Tenancies Act 2016 (2016 Act), permitted planning permissions which had already been extended to be further extended in certain circumstances. Developments that availed of this further extension under the 2016 Act have also been specifically included within the ambit of Section 7 of the 2021 Act. These developments will also be able to make an application to the planning authority to further extend the planning permission, if required.

Conclusion This is good news for developers, as progressing construction has been inevitably sti ed due to the rolling Covid-19 shutdowns. The overnment has applied a reasonable approach in permitting extensions for up to two years or until 31 December 2023, whichever occurs first to allow for ongoing issues with supply chains and lead times on materials, equipment and availability of personnel. That said, developers will need to ensure they meet the criteria required to be eligible to benefit from an extension. P

The Government has applied a reasonable approach in permitting extensions for up to two years or until 31 December 2023, whichever occurs first

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DSBA PROPERTY COMMITTEE – LOOKING BACK AND LOOKING AHEAD With another difficult year coming to a close, we have asked the members of the DSBA

Name

Property Law Committee to comment on either some of their highlights over the past

year or issues to watch out for in 2022. We hope you enjoy the selection below.

Topic

ackie Buckley

We welcome the introduction of the Companies (Rescue Process for Small and Micro Companies) Act 2021 which was enacted on 22 uly 2021. We expect it to be commenced shortly. t is designed to be a more suitable rescue process for small and micro companies which currently account for more than 9 of Companies. The Process Advisor prepares a Rescue Plan after interacting with creditors. The Act also allows for the repudiation of onerous contracts, including Leases. As Tenants in many sectors remain in a precarious position with outstanding rent arrears, once commenced, the legislation will provide a way forward for many Companies.

Ethna Ryan

The Land and Conveyancing Bill 2021, signed into law on 26th of ovember 2021, has repealed sections 33 to 39 of the Land and Conveyancing Law Reform Act 2009. The repealed sections had imposed an obligation on the user of an undocumented easement or profit prendre to register the right either by way of Court order or through the Property Registration authority by the 30th of ovember 2021 to avoid losing any rights acquired by long use. The establishment of such rights will, once the bill is enacted, revert to the law that applied prior to 2009 where such rights were in the main, verified by way of statutory declaration. Special arrangements have been made in respect of State-owned land with the prescription period being 30 years against State-owned land and 60 years where the land is foreshore. The Bill is welcomed to avoid the increase in litigation the current legislation deadline would have undoubtedly caused on our already pressured courts services.

Marissa O’ eeffe

LPT The inance (Local Property Tax) (Amendment) Act 2021 introduced certain changes in relation to LPT that is due in 2022. These apply to property valued on 1 ovember 2021. The revaluation of homes had been deferred on many occasions resulting in one valuation period from 2013-2021. The new valuation period is due to apply to LPT for 2022-2025. omeowners were obliged to submit a self-assessed valuation of their property and submit an LPT return by 7 ovember 2021. nlike PPR charges, under s.124 of the inance (Local Property Tax) Act 2012, there is no time limit on the charge. NPPR The Local overnment (Charges) Act 2009 affected and continues to affect the sale of non-principal private residences ( PPR) in respect of the PPR charge which applied from 31 uly 2009 to 31 March 2013. Whilst any unpaid PPR is a charge on property under the Act, however, the Act also provided for the expiration of the charge after 12 years. The Department of ousing, Local overnment and eritage advised that there will be a phased expiry of PPR charges, late payment fees and the charge on property. rom 1 August 2021, the amount due for same will reduce every year until the liability and charge on property expires completely on 1 April 2025. The 2009 Act is due to be repealed on 31 March 2025.

Roisin Bennett

iven the ongoing challenges that Covid-19 causes for our business and personal lives, we would like to remind practitioners that the Law Society has a range of wellness resources available in the wellbeing hub on www.lawsociety.ie. One such resource is LegalMind which is an independent and low cost mental health support available for Law Society members, their partners and dependants. The service is completely confidential and available 24 7 365 days per year. To access this service, designed just for solicitors, call LegalMind any time on their freephone number 1 00 1 41 77 or send an SMS WhatsApp to 0 73690010 (standard rates apply) and receive a text back that day from one of LegalMind’s case managers.

Marcus ennedy

ESG ES or to give its full name, Environmental, Social and Corporate overnance, is a prevalent theme across the real estate market. Most investors and tenants now have ES policy documents which inform the nature of the property they transact on. This can translate through to an outright obligation on a developer to deliver, for example, minimum standards of BERs, LEED (Leadership in Energy and Environmental Design) or BREEAM (Building Research Establishment Environmental Assessment Method) certification. n managed estates, it has become a feature for a landlord management company to implement Energy Management Plans and maintain environmental performance data with the cost being recovered, in the usual manner, through a service charge. Commercial leases can include an entitlement for a landlord to refuse consent to tenant alterations where the works would be of such a nature as to adversely affect the environmental performance of the premises

Elaine

Force Majeure/Covid clauses The accepted meaning of force majeure’ in contract law is a clause that removes liability for events that could not be anticipated which prevent parties from fulfilling obligations. Practitioners should note that pandemics may not be regarded as unforeseen natural and unavoidable catastrophes following the impact that the Coronavirus has had. The implications of force majeure clauses need careful consideration. We have seen a narrowing and more restrictive drafting and interpretation of force majeure clauses. All contracts and leases should now contain a “Covid” clause to limit liability in the event of government restrictions being in place which prevent a party from fulfilling their contractual obligation.

iven

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Winter 2021 dsba.ie

In Practice

HIGH COURT PROCEDURE UPDATE Infant Rulings The central office in the our Courts has requested that all infant rulings proceed with the applicant solicitor filing the Ruling papers exhibiting original exhibits only. t has also requested that all booklets be paginated.

Judgments in Default As of the 13th of ovember 2021 S 490 2021 rules of the superior courts, these rules amend the rules of the superior courts by the substitution of orders 13,20,21 and 27. and the

amendment of order 23 rule 6 and order 63 rule 1 to improve procedures and applications to the igh Court for orders in default of defence, statement of claim and appearance and to standardise time limits for delivery of certain documents. n particular these rules provide for the following that judgment be entered in a motion for judgment in default of defence or default of statement of claim except where justice requires an extension of time and where such an extension is granted, the court shall make an “unless order” , thus

requiring one court hearing only. Eight weeks are required for delivery of a statement of claim and delivery of defence in all cases. The requirement is now of a 2 -day warning letter instead of 21 days, to the bringing of an application for judgment in default including judgment in default of appearance and the plaintiff is required to serve the notice of motion on the defendant in all applications for judgment in default of appearance. Barra O Cochlain, DSBA Litigation Committee the Parchment 61


Closing Argument Stuart Gilhooly

Stuart Gilhooly SC is a partner at H.J. Ward & Co. Solicitors. He is a former President of the DSBA and former President of the Law Society

We already know the effect of scales on access to justice looks like. The District Court is a living, breathing example of what not to do

Access to Justice Ticking Timebomb I

t’s obviously an exaggeration to say these are wartime conditions. But sometimes it feels that way. No media, whether it be radio, TV or social seem capable of letting a day past without reminding us that Covid still rules the world. And while this is undoubtedly true, it does tend to mean that other social, legal and economic problems have to take a back seat. One of the most pervasive issues is access to justice. It’s a lovely sunny concept that everyone seems to favour. No politician, for instance, is ever going to produce a manifesto with less access at its core. But it’s a little like poverty, homelessness and climate change in that regard, we all know what side we are on b ut the nettle always seems to elude our grasp. It’s been a problem as long as this column is practising but the leak that was once a trickle is now threatening to become a torrent. A perfect storm is coming for the consumer and while much of it is down to a lack of investment in the courts system, the rest may well be selfin icted by an over- ealous legislature. 62 the Parchment

But all is not lost. There is a way to fix this hole. If there is a will. Let’s start with the effects of underinvestment in the courts system. Like the health service, justice has been provided with just enough to keep the show on the road for decades. No foresight, no planning for disasters such as the current pandemic. The result is the fewest number of judges per capita in the OECD. In this publication, over the summer, the President of the High Court correctly pointed to the crisis in the number of judges available to her and how it was the individual litigant, usually underfunded, who suffered. But the crisis in the High Court is only the start of it. The Circuit Court resourcing, particularly in Dublin, has been exposed by the various lockdowns. This was an accident waiting to happen. They are chronically understaffed. They need more judges, County registrars, courtrooms and court staff just to cope with the current backlog. To be crystal clear, this is not the fault of the Circuit court judges, registrars or staff. They can only work with what they have and the circumstances which have been

presented to them. Dublin, for instance, is huge. It needs more of everything, judges, registrars and staff. o doubt, other large centres have the same problem. There is only so much that can be done with loaves and fishes. And it’s getting worse before it gets better. Absolutely no thought appears to have been given to the effects the new Personal Injuries Guidelines will have on the Circuit and District Courts. It is likely that the Circuit will see an increase of approximately 50 of its P work and District Courts probably around 25 . They are simply not equipped for this. In the rush to placate every whim of the insurance industry, we have ensured that many claimants will now wait at least twice as long to get a case to trial or more likely will have to accept a lower offer to end the torture. Of course, this may well be part of the plan and no doubt it is further reason for the insurers to crack open the Champagne, but even they will get sick of not getting cases off the books for those pesky Plaintiffs who want a fair offer or where the case has to run for liability or other reasons.


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However, while this last innovation is a clear own goal, there is an even bigger calamity looming on the hori on if the noises from the Department of Justice are what they appear to be. Last year, the Civil Justice Review, led by former President of the High Court Peter Kelly, studied a number of options for the future adjudication of litigation costs. While the sensible option would have been to await the effects of the newly effective Legal Services Regulation Act reforms and the recently formed Legal Costs Adjudication Office, it was felt that a more radical suggestion was required. Two such proposals were made, one of which was effectively binding scales and the other was non-binding guidelines. While both would achieve transparency for the consumer, one would benefit the State and the other the consumer.

The Committee making the recommendations divided along predictable lines. The majority, comprising the professions and all of the judges of each court, favoured the guidelines. The State representatives, not surprisingly, all voted for the scales in the minority. That, you would think, would be that. The majority makes a recommendation and government follows it. Not so fast. The Department of Justice has commissioned independent consultants to do a cost/ benefit analysis of which proposal is most cost effective for the State. This column can save them the cost of the report. It’s binding scales, in a shock development. The State is a paying party in a large proportion of litigation in this country. If party and party costs are limited, then they will pay less. The

inevitable corollary is that the consumer will either pay the balance or not get legal representation at all. We already know what the effect of scales on access to justice looks like. The District Court is a living, breathing example of what not to do. Many solicitors simply refuse to take on District Court litigation as it is uneconomic. Scales in the other courts will lead to the same inevitable result. The purpose of the Civil Justice review was to make the courts more accessible for the average citi en. The scales option will undoubtedly do the opposite. Access to justice is not a woolly concept that government can pay lip service to. It is the cornerstone of any democracy. Investment and simple common sense would make a world of difference. What are the chances? P

Hippocratic Oath Pablo Escobar was killed by police in 1993. All of his property was sei ed. e had collected animals in a huge open oo on his estate. The police sent Escobar’s animals off to various oos but decided to let his hippos stay on the property since authorities believed they wouldn’t be an issue and transport of the animals would prove difficult. Then the hippos did what any hippo does: they reproduced. Up to 120 hippos freely roamed some 100 miles from the region’s capital city. The hippos, dubbed the cocaine hippos, became a major concern for residents’ safety as well as the environmental impact they could have on the area. Hippos for those in the know are perhaps the animal which can create the most danger for humans. The Colombian authorities decided to cull the hippos. On the 21st of October 2021 a US federal court made legal history by recognising the animals as humans, allowing an application to be made on their behalf to seek an alternative solution. In pursuit of deposing two wildlife experts with expertise in nonsurgical sterilisation who reside in Ohio, the Animal Legal Defence und filed an application on behalf of the plaintiffs in a Colombian lawsuit against the country’s government regarding a plan to kill roughly 100 hippos who are descendants of animals imported by Escobar. The plaintiffs are the “community of hippopotamuses living in the Magdalena

River.” In Colombia, animals have standing to bring lawsuits to protect their interests. In granting the application pursuant to 28 U.S.C. § 1782 to conduct discovery for use in foreign proceedings, the court recognised the hippos as legal persons with respect to that statute. This U.S. statute allows anyone who is an “interested person” in a foreign litigation to request permission from a federal court to take depositions in the U.S. in support of their foreign case. The U.S. Supreme Court has said that someone who is a party to the foreign case “no doubt” qualifies as an “interested person” under this statute. The Animal Legal Defence Fund reasoned that since the hippos are plaintiffs in the Colombian litigation, they qualify as

“interested persons” under this statute. “Animals have the right to be free from cruelty and exploitation, and the failure of U.S. courts to recognise their rights impedes the ability to enforce existing legislative protections,” says Animal Legal Defence Fund Executive Director Stephen Wells. “The court’s order authorising the hippos to exercise their legal right to obtain information in the United States is a critical milestone in the broader animal status fight to recognise that animals have enforceable rights.” In a world where humans are destroying the planet this is ground-breaking. A legacy Escobar could scarcely have imagined. Barra O Cochlain the Parchment 63


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DSBA Presents Charity Cheque to Dublin Lord Mayor DSBA Vice President Susan Martin recently met with the Lord Mayor of Dublin Alison Gilliland at the Mansion House and presented her with a cheque for the Mansion House Fuel Fund. The Mansion House Fuel Fund was established by Sir John Arnott in 1891. It was originally set up to assist the needy during the cold winter. The Fund distributes cash grants through a number of Charitable Societies, without any distinction of creed. t was one of the first truly Ecumenical Charities in Dublin. Some of the Charities whom the Mansion House Fuel Fund assists during the winter months include the Dublin Simon Community, St. Vincent De Paul, Abbey Presbyterian Church Hamper Fund and St. Thomas the Apostle Parish, Jobstown, Tallaght. Photo: DSBA Vice President Susan Martin presents a cheque from the DSBA to the Lord Mayor of Dublin, Alison Gilliland

Parent and Son DSBA Presidents With Diego Gallagher’s recent election as President of the DSBA, he joins a unique club – namely a President who is the son of a former President. The Parchment stands to be corrected but by our count, there were only four Presidents in such category. These are David R Pigot (1975), Tony Sheil (1992), Michael uinlan (2007) and now Diego Gallagher. Our thanks to John ‘Spanner’ O’Malley for highlighting this interesting fact. Current DSBA President Diego Gallagher with his father and former DSBA President Brian Gallagher

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Right: Former DSBA Presidents Michael Quinlan and the late Moya Quinlan


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