Parchment Autumn 2015

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D UB LIN SOLICITORS’ B AR ASSOCIATION MAGAZ INE | AUTUMN 2015 | ISSU E 65

RIGHT TO SILENCE Under the Spotlight

FORMER REPUBLICAN CROSS-EXAMINED 20 MINUTES WITH CATHERINE GHENT

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Autumn 2015 dsba.ie

From the Editor

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nce in a while an extraordinary achievement makes us sit up and take notice. Stuart Gilhooly’s global recognition at the recent Content Marketing Awards in Cleveland, Ohio has put his writing up in lights on a world stage.

Stuart has single-handedly kept the Parchment going these past few years with his intuitive and sharpwitted interviews with many of our peers, not to mention his Closing Argument column which never fails to engage our readers.

Up against a shortlist of stiff competition from full-time journalists drawn from the USA, Australia, Singapore and beyond – his win bestows great honour on this humble publication and more especially, the DSBA. Stuart was crowned the winner of the Best Interview in Print or Digital for his profile of Muriel Walls which featured in the spring edition of the Parchment.

This groundbreaking and honest interview with one of Ireland’s leading family lawyers puts Stuart’s penmanship at the vanguard of interview technique.

This is not the first writing accolade for the Harold’s Cross personal injuries guru. He won the coveted Journalist of the Year award at the Magazine Awards a few years ago and has been shortlisted a number of times since.

Stuart doesn’t disappoint in this edition of the Parchment as his Cross Examination delivers a radical and precocious interview with Kieran Conway, a former member of the IRA and now a Smithfieldbased criminal solicitor.

And if you want Stuart’s take on the myth that lawyers are to blame for inflated personal injury claims and the ‘compo culture’ then turn to the inside back page and read his Closing Argument. We salute Stuart for his tremendous global achievement.

John Geary jvgeary@gmail.com

DSBA COUNCIL 2015

AARON MCKENNA DSBA President

EAMONN SHANNON Vice President

AINE HYNES Programmes Director Chair - Mental Health and Capacity Committee

ROBERT RYAN Honorary Treasurer

ELAINE GIVEN Honorary Secretary

DIEGO GALLAGHER Chair - IP and Technology Committee

TONY O’SULLIVAN Chair - Property Committee

JOE O’MALLEY Chairman of the Litigation Commitee

GREG RYAN Chair - Commercial Law Committee

CAROL EAGER

SUSAN MARTIN

VICKY PIGOT Chair - In-house Lawyers Committee

PETER BOYLE

JOHN O’MALLEY

MATTHEW KENNY

The DSBA, its contributors and publisher do not accept any responsibility for loss or damage suffered as a result of the material contained in the Parchment.

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.

EDITOR John Geary PARCHMENT COMMITTEE Stuart Gilhooly Kevin O’Higgins Gerry O’Connell Killian Morris Julie Doyle Áine Hynes Keith Walsh Geradline Kelly COPYRIGHT The Dublin Solicitors’ Bar Association

PUBLISHED BY The Dublin Solicitors’ Bar Association, 1st Floor, 54 Dawson Street, Dublin 2.

DSBA OFFICE, T: 01 670 6089 F: 01 670 6090 E: maura@dsba.ie DX 212011 W: www.dsba.ie ADVERTISING ENQUIRIES Donal McDonald T: 01 707 6036

DISCLAIMER Advertisements are accepted at the discretion of the magazine which reserves the right to alter or refuse to publish any item submitted. Publication

WHEN YOU HAVE FINISHED WITH THIS MAGAZINE PLEASE RECYCLE IT.

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Autumn 2015

Contents 6

20 Minutes with...

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Expert Witnesses Under Spotlight

Killian Morris talks to Catherine Ghent of Gallagher Shatter Solrs

Believe in yourself and your convictions and don’t be afraid to challenge conventions page 6

20 MINUTES WITH... CATHERINE GHENT

Gavan Carty examines a recent High Court decision which has implications for expert witnesses

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Pension Adjustment Orders

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Getting Your House In Order

20

Cross Examination

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The Tax Man Cometh

Keith Walsh reports on a High Court decision with implications for the Pensions Ombudsman

Julie Brennan reports on standardised systems which provide efficiencies and peace of mind for all law firms

Stuart Gilhooly interviews former Republican turned lawyer and author, Kieran Conway

Finola O’Hanlon and Brian Broderick examine Revenue’s strategy for income tax compliance

Dublin Solicitors’ Bar Association 1st Floor, 54 Dawson Street, Dublin 2, Ireland T: 01 670 6089 E: info@dsba.ie W: www.dsba.ie

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Autumn 2015 dsba.ie

Contents

REGULAR FEATURES 01 Editor’s Note 04 President’s Message 47 News 51 DSBA Younger Members 53 Photocall 64 Closing Argument

39 28

Consumer Protection Enhanced Vicky Pigot assesses the new Consumer Protection (Regulation of Credit Servicing Firms) Act 2015

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Only Fools and Horses Conor MacGuill assesses the obligations on solicitors advising persons who are in garda custody

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You Say it Best When You Say Nothing at All Lidia Levingstone assesses what might happen if a person is the subject of both civil and criminal proceedings

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Rates On Commercial Property Killian Morris and Adrian Power Kelly review the new legislation’s impact when selling a property

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Social Media For Solicitors Digital whizz Sean O’Brien explains how he promotes his business online

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Data Discovery and Litigation Ciara McMahon discusses the interaction between subject access requests under data protection legislation and discovery in litigation

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Kieran Conway cross examined the Parchment 3

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Message from the President

The Last Word

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f I may, I would like to begin this President’s message by noting the sad passing of a great supporter and friend of the DBSA, Judge Paul Carney. I last met Judge Carney in January and he was discussing his approaching retirement and it seems that his life ended all too shortly after that event occurred. Our thoughts are with his family at this difficult time.

The new term is just upon us and I trust that all DSBA members have had a relaxing and enjoyable summer recess. The DSBA took its conference to Berlin, as you will know, and the trip was simply fantastic.

I have been on quite a number of these conferences and every one of them has been very enjoyable. The group of colleagues that attend from year to year are a wonderful bunch and thank you to all of them for supporting us again this year. If you haven’t been able to get away on one yet I would really recommend you sign up for next year.

The delegates, who stayed at the Ritz Carlton Hotel in Potsdamer Platz, were treated to good company, exciting culture, and an interesting and entertaining business session that led to a healthy debate about the differences between how the law is practised in Germany under the civil code and at home in our jurisdiction. All of this was provided, as always for the group, at great value. Even the Amarone came in at about half of the price we would normally expect to pay, which took a little adjusting in terms of the volume, but we managed ok in the end! As a special and very welcome treat, the ambassador of Ireland to Germany, Michael Collins attended the gala dinner with his lovely wife Marie, which was held at the Reichstag, the seat of German Government, an amazing building. I want to thank Michael and Marie for taking the time to come along to see us.

Next stop on the DSBA annual conference map could be further afield than Europe, and that is a matter for our next president, but he is assured of our support wherever he goes!

It is unbelievable that my time as president will soon end, it really goes very quickly indeed and the AGM of the DSBA will be held on October 21st in the Westbury Hotel and I would ask you all to

I want to thank the membership, the focus of the association, for your continued support and I hope that the DSBA can continue to deliver as it has for many years

put that date in your diary and I hope for a big turnout to welcome our new president and council into office. At the time of writing, our annual committees’ lunch is approaching, but before I go I want to thank the council, our several committees and our administrative staff for all the support through the year, and for making it a great 2015. Most of all, I want to thank the membership – the focus of the association – for your continued support and I hope the DSBA can continue to deliver as it has for many years.

Aaron McKenna, DSBA President

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Catherine Ghent of Gallagher Shatter Solicitors

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Autumn 2015 dsba.ie In conversation with Killian Morris of AMOSS Solicitors

20 Minutes With...

It’s challenging work, you’re exposed to the very dark side of life and, prior to working in the area, while having great sympathy and wanting to help, I couldn’t fully appreciate the bleakness sometimes involved

Catherine Ghent

Catherine Ghent is a partner at Gallagher Shatter Solicitors who specialises in representing children in both the criminal justice and care systems.

Catherine has over the years made numerous contributions to the media in relation to legal issues, appearing on television and radio on many occasions

When did you qualify?

Easter 2004.

If you hadn’t become a solicitor what would you have done?

I studied piano and organ at the R.I.A.M. with two wonderful teachers when still at school and from a very early age, I was only ever on course to become a musician. Once in college, at the very last minute, I found I wanted to do a range of things including law, history and politics, philosophy and psychology. I was advised that law wouldn’t be as limiting as the others, if I couldn’t make up my mind as to what I wanted to do.

And so, in a sense, I’m accidentally a lawyer.

Have you any funny anecdotes from your time as a trainee/apprentice?

Not too many – a few hairy moments when I didn’t know what I was doing. I was very lucky as Pól Ó Murchú stepped in to rescue me – his kindness has always been greatly appreciated. Probably my funniest moment in practice was when I was fairly recently qualified and went down to the cells in Court 46 at the Bridewell to speak to a client. In

circumstances where gardaí were objecting to bail and my client’s origins were uncertain, I asked what his status was. By this I meant what was his legal status in the country; it was an obvious question at the time. My client drew himself up to his full height, put his hand on the cell door above his head and, much to my mortification and the amusement of the prison officers present, smilingly replied that he was “single”.

What type of practice do you personally have?

I practise overwhelmingly in the area of public law and have, for the majority of my career, concentrated on the representation of children and young people both in the criminal justice and care systems. It’s challenging work – you’re exposed to the very dark side of life and, prior to working in the area, while having great sympathy and wanting to help, I couldn’t fully appreciate the bleakness sometimes involved. There are times when it’s extremely rewarding – when a child unexpectedly comes through, despite all the odds, and these are the moments

which make it worthwhile. Some of the children I have worked for have gone on to study at third level, which is an incredible achievement.

What is the most significant development in your field of practice in the past five years?

The dramatic increase in the number of children and young adults being sent abroad – usually to England or Scotland – to be detained for their own safety and protection. From practice I have seen how difficult it is to provide for children with very extreme needs and there are times when the numbers of children requiring a particular service are so small that the expertise required to address this is simply not present in this jurisdiction. However, it remains my view that this reflects a failure to address properly the necessity for earlier intervention. This is reflected in the ad hoc and often chaotic way in which the attendant jurisdiction has evolved.

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20 Minutes With...

Photography: Bryan Meade

Growing up in the North during the Troubles forced me to think at an early age about the role of the citizen in society and to actively engage with and think about issues such as inequality and respect for personal and human rights updated legislation. The dichotomy whereby the courts cannot intrude on the separation of powers but have, of necessity, developed an inherent jurisdiction to deal with individual cases before them, where sometimes life itself is deemed to be at stake – is clearly unsatisfactory.

Also the welcome increased appointment of guardians ad litem to act on behalf of children in care proceedings is hugely significant. Seeing the enormous impact of court decisions on children’s lives, my conviction has deepened that children in proceedings must have the benefit of appropriately qualified representatives, both to be their voices and independently assess what is in their best interests. The latter, we as solicitors are simply not qualified to do.

Equally as numbers have grown, the need for regulation and greater transparency in appointments becomes ever more apparent.

This is particularly so in the cases where children, and now vulnerable adults, are being detained on a civil basis in a legislative vacuum.

I look forward to the passing of the Children’s Referendum as the most significant development in the next five years.

What was your most memorable moment in practice?

There are two – the first was receipt of the judgment in the case of D.G. v Ireland from the European Court of Human Rights, when I was an apprentice. The ECHR found Ireland to have breached Article 5 of the Convention by detaining a young person at St Patrick’s Institution in circumstances where there was no therapeutic benefit to him. Although I came in to the office after the case had been heard, the significance of the judgement and the realisation that a small firm could achieve such an important change at an international level had a profound influence on the way I approach cases. The second was receipt of the judgment in HSE v S.C. from the C.J.E.U., which provided greater legal certainty and protection for children detained abroad. It was a lesson in not giving up, even where the opposition you’re facing can sometimes seem overwhelming.

Who has had the most influence on your legal career and why?

There are more than a few, but the key people have been Gerry Durcan, SC; Bernard Condon, SC; Brian Barrington, BL; Noleen

Blackwell and Pól Ó Murchú. I count myself to be extremely lucky to have worked with the others who have been unstintingly generous with their time and knowledge and I continue to learn from each of them.

They have been inspirational in the way they approach cases; have provided me with reference points for practice and been models of integrity, courage and dignity.

Are the family law courts fit for purpose in 2015?

I think most people would agree that clearly they are not. The physical surroundings are a disgrace – both Dolphin House and Phoenix House currently represent all that is inadequate about planning for and appreciation of the sensitive nature of these cases. The way the lists work do not help the situation as you generally have everyone involved in all cases, arriving at the same time and waiting for an inordinate time, increasing stress, after which sometimes cases don’t get heard at all. There are completely inadequate consultation rooms with waiting areas offering no privacy.

The situation in country courts where the resident judge sometimes has up to 90 cases in their list, renders the notion that a fair hearing can be had in each, a triumph of optimism over experience. Practitioners and judges are doing their best, but I hope that when the new courts for family law are being developed they start from the bottom up, with detailed consideration given to very practical issues. For example, where do people sit in a general waiting area? What should that look like? Should there be a number of waiting rooms in the same complex so people do not have to sit near someone they are afraid of ? What is a realistic number of consultation rooms and how can organisation of the lists best serve the people involved in the proceedings etc?

The influence of the media in the courtroom – generally positive or in need of reform?

I was really shocked during the campaign for the Children’s Referendum at the refusal to believe that parents sometimes harm their children and that most abuse happens at home. There was and still is a notion abroad that the big bad State swoops in to remove children from their parents, and families are not given a chance. While there are still difficulties in the system and discrepancies in the manner in which care order applications

are granted or refused, the system is improving. The reporting which now occurs acts as an important public record and I believe it performs a crucial public service in that regard. People and politicians cannot now claim not to know about either children being abused in the family or the unfortunate and sad cases where parents are simply unable to adequately look after their children. The journalists who have reported on these cases have done so in a fair and measured way, and that is vital given that the stakes are so high. From a personal point of view I would prefer a six-month delay in reporting of childcare cases to ward off the possibility of already vulnerable people reading about themselves and thinking everyone will know who they are.

What do you think will be the most important national issue in the run-up to the general election?

I think this election will be notable for a greater analysis among the electorate as to not only what kind of economy we want to have, but also what kind of society.

Describe an event in your personal life which has had the most impact on your development as a solicitor?

Growing up in the North during the Troubles forced me to think at an early age about the role of the citizen in society and to actively engage with and think about issues such as inequality and respect for personal and human rights. It has left me with a tendency to approach cases with that always at the back of my mind. My parents always impressed on us the necessity to be open minded and tolerant – and an oft-repeated phrase of my father’s was: “It doesn’t matter if someone is a Catholic, Protestant, Muslim, Jew or Hindu – it’s the person inside”. This has definitely translated into my work.

What would be your dream holiday?

Somewhere with my husband that has lovely food, wine, music, museums and art.

Any advice for those entering the profession in 2015?

Ask questions and ask more questions.

Be bold and creative in your approach to law and stand up for yourselves and for others. The notion that justice is not subject to the law, but rather the law is subject to justice is an important one.

There is no doubt that times have been extremely difficult for many trainees over the past number of years and that there has been exploitation by firms. Use your experience and work to ensure what happened before, doesn’t happen others into the future.

Finally for litigators – never be bullied, you have an obligation to do what is right for your client. Believe in yourself and your convictions and don’t be afraid to challenge conventions. Experienced colleagues can and will provide sound advice and support – we have seen it all, so just ask. P the Parchment 9

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Expert Witnesses Under the Spotlight Gavan Carty examines a recent High Court decision of Mr Justice Barton which has implications for expert witnesses, especially medical practitioners giving evidence in personal injury actions

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n Waliszewski v McArthur and Company (Steel and Metal) Limited [2015] IEHC 264, the High Court (per Barton J) acceded to the defendant’s request to dismiss the plaintiff ’s claim in accordance with provisions of Section 26 of the Civil Liability and Courts Act 2004. In doing so, Barton J commented on the evidence that had been presented by the plaintiff ’s consultant orthopaedic surgeon Mr Kessopersadh.

Barton J held that the plaintiff ’s replies to particulars had failed to disclose a subsequent road traffic accident which he determined to be material and that the failure to make such disclosure was false and misleading.

Barton J noted several other inconsistencies in the manner in which the plaintiff pleaded his case.

While the learned judge gave a concise summation of the jurisprudence in respect of section 26 and the obligations when dealing with replies to particulars, his judgement was notable in its consideration of the role of the plaintiff ’s orthopaedic surgeon, whose evidence mirrored the replies to particulars in that it did not address the subsequent accident. Mr Kessoperadh gave evidence to the court that he did not disclose the accident, as he did not want to cause any confusion.

Barton J was careful to note that this approach was not taken at the behest of the plaintiff, nor of his solicitors but rather had originated from Mr Kessoperadh.

Barton J noted that “whilst it might be perfectly permissible for a physician to adopt such an approach in respect of two completely separate and unrelated incidents or accidents not involving the same or similar injuries or in aggravation thereof, that was plainly not the position in this case. On the contrary,

the evidence was that the plaintiff had sustained a significant back injury as a result of the RTA rendering his back symptomology much worse. Mr Kessoperadh’s explanation for this was that he had omitted reference to those events through inadvertence. His evidence, and in particular the manner in which the report was prepared by him for the purposes of these proceedings, excluding as they did any reference to the road traffic accident and its consequences for the plaintiff ’s back, was, in the submission of senior counsel for the defendant, Mr O’Hagan, nothing short of preposterous.

In my view, not only was it proper and appropriate but it was necessary that the RTA of December 2010 and its consequences in relation to the plaintiff ’s back injury should have been fully dealt with by Mr Kessoperadh in the reports prepared by him for the purposes of these proceedings. His failure to do so was reprehensible and is to be deprecated. I reject his explanation that this was due to his desire not to cause confusion. No question of confusing the court in particular, would arise by a full and frank disclosure of the RTA”.

This judgement is significant in highlighting the necessity of an expert witness acting impartially and with independence. Having subsequently heard submissions by Mr O’Hagan, SC for the defendant, Barton J directed that a copy of his judgement be forwarded to the Medical Council of Ireland.

Expert Immunity The Supreme Court in O’Keefe v Kilcullen & Ors [2001] 3 IR568 held “that the law in this jurisdiction confers upon a witness – whether expert or otherwise

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Autumn 2015 dsba.ie Gavan Carty is a partner at Kent Carty Solicitors, Parnell Square

– immunity from proceedings in respect of a wrong committed in such circumstances. That immunity is subject to the qualification already noted that if a witness – or even if a judge – so departed from the duties which he or she was purporting to perform as to abuse his position, that he would forfeit the immunity which he was abusing”.

The position in England and Wales has somewhat changed in light of the Supreme Court decision of Jones v Kaney [2011] UKSC13. There, the witness was regarded as having a position closer to an advocate than a witness insofar as both expert and advocate have “a paramount duty to the court and the public which may require the advocate or the witness to act in a way which does not advance the client’s case”. The court distinguished between the claim of an expert witness for immunity from liability for breach of duty to the plaintiff, and immunity of a witness of fact against a claim for defamation or some other claim in tort, where the witness had not come to court voluntarily and owed no duty of care to the plaintiff. The Supreme Court of England and Wales dismissed as mere conjecture the notion that the removal of the immunity against suit would have “a chilling effect on the supply of expert witnesses”.

Need for Reform The Law Reform Commission (“the LRC”) published a report on expert witnesses in December 2008 in which the seminal English decision of the National Justice Compania Naviera SA v Prudential Assurance Company Limited (1993) (The Ikerian Reefer) 2 Lloyd’s Reports 68 was cited with approval. The same case formed the basis of the civil procedure rules for experts and assessors in England and Wales, which set out the paramount duty to assist the court when providing independent and unbiased opinion on matters and a duty to bear this overriding obligation in mind when giving evidence.

Litigation

The overall objective requires that the court be provided with all relevant matter in the most effective and expeditious way

Substantially the same point was made in Mutch v Allen (2001) 2 CPLR 24 when the Civil Procedure Rules in England and Wales were described as having been “designed to ensure that experts no longer serve the exclusive interests of those who retain them, rather contribute to a just disposal of the dispute by making their expertise available to all. The overall objective requires that the court be provided with all relevant matter in the most effective and expeditious way. The policy is exemplified by Rule 35 (11) which allows one party to use an expert’s report disclosed by the other party, even if that other party decided not to rely on it itself ”.

The Rules of the Superior Courts have yet to be systematically re-cast to deal with such witnesses.

Insofar as they touch on experts, the philosophical underpinning is markedly different to that in England.

For example, Order 39 Rule 46 (6) of the Rules of the Superior Courts in Ireland allows a party to withdraw reliance on an expert report in personal injury.

As a consequence, the law in this area has developed in a more piecemeal fashion. Nevertheless, core principles are common to both jurisdictions. The LRC report highlighted the requirements of truth, independence and impartiality and noted that the protocol for experts states that “a useful test of independence is that the expert will give the same opinion even if acting for the other side”. This reflects the judgment of Kearns J in Payne v Shovlin & Ors (2006) IESC 5 where he noted that expert witnesses should not be “partisan advocates”.

Conclusion The judgement of Barton J is a timely reminder of the obligations on the part of an expert witness when giving evidence to the court. Whilst the judgement was given in the context of personal injury proceedings, the warning that it sounds is relevant to experts in all types of civil litigation. As highlighted in the LRC report, the day of “hired gun witnesses” may be well and truly over.

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Company Profile

Tracing Beneficiaries For any probate firms dealing with assets in a foreign jurisdiction, Finders can repatriate the likes of property, stocks and shares

Formed in 1997 in the UK, Finders’ core business is in tracing missing beneficiaries and unknown next of kin to unclaimed estates. Lawyers all over the UK use the company regularly to help trace those due to inherit on intestacy cases. Given the high degree of emigration from Ireland in the past, Finders has been operating in Ireland for many years. Such was the demand for their services that they opened an office in March of 2015 at Sir John Rogerson’s Quay in Dublin 2

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anaging director of Finders, Daniel Curran, says: “Having worked with solicitors in Ireland for many years, the feedback we received was that the standard surrounding our type of work needed to be raised significantly. Solicitors in Ireland can now avail of our services and rest assured that any research and investigations carried out will be done so with the utmost professionalism”.

While tracing beneficiaries is their primary activity, Finders’ Overseas Asset Service is proving hugely popular among solicitors nationwide. For any probate firms dealing with assets in a foreign jurisdiction, Finders can repatriate the likes of property, stocks and shares. Asset services manager Louise Levene has vast experience in this field and uses her extensive knowledge to assist solicitors in cutting through the bureaucracy that delays the winding-up of worldwide estates.

When not searching for beneficiaries or assets, the staff at Finders International are kept busy by the BBC who feature the company in their TV programme Heir Hunters. The show is ongoing and series ten is currently being filmed in London, with the possibility of some shows being filmed in Ireland in the near future. Padraic Grennan, manager of the Irish office for Finders says: “We are excited that Heir Hunters is being filmed in Ireland as it gives us a chance to demonstrate to the legal profession the way we work and how efficient our methods have become. I would urge any solicitors that need assistance with tracing or assets to get in touch, we are always willing to help where we can”.

If you have any cases where you need help in tracing someone, you can get in touch with Finders on 01 6917252 or email contact@findersinternational.ie. P

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When a Pension Adjustment Order Goes Bad, who you Gonna Call?

- the Pensions Ombudsman A High Court decision from July 15th 2015 indicates that the Pensions Ombudsman enjoys a wide discretion when dealing with mixed questions of fact and law. He also enjoys a significant discretion to achieve a fair outcome in relation to a complaint. Keith Walsh says that clarification of the Pensions Ombudsman’s powers may be of assistance to beneficiaries, solicitors and the Pensions Ombudsman when a pension adjustment order fails due to a technical problem

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ne of the ancillary orders available to the parties on the granting of a decree of divorce is a pension adjustment order. Pensions are trusts and the trustees of the pension schemes are third parties who must implement the orders. The current practice in the Circuit and High Family Court is that the court makes a pension adjustment order pursuant to section 17 of the Family Law Divorce Act, 1996 and at the same time, or more often, subsequently, a formal pension adjustment order is ruled by the court which sets out the formalities of the order. It is usual at this stage to provide a letter to the court from the trustees stating that the order is capable of implementation. The trustees of any pension fund which may be the subject of a pension adjustment order must, according to section 17(18) of the Act, be put on notice of the application and the court must have regard to any representations made by the trustees. It is usual for these representations to be made in correspondence and it is rare for trustees or their legal representatives to attend the family courts. While this article is only concerned with pension adjustment orders made consequent to a decree of divorce, similar relief is available on the granting of a decree of judicial separation.

The Pensions Ombudsman, Paul Kenny, investigates and rules on complaints from members and beneficiaries regarding pensions. His stated aim is to resolve complaints in a just and equitable manner. He is a statutory officer who exercises his functions independently of government and of the pensions industry and he reports to the Oireachtas. His decisions are not published as they are private to the parties. Unlike the Financial Services Ombudsman there is not a significant jurisprudence surrounding appeals of his findings which are taken to the High Court and which can be appealed to the Supreme Court or the Court of Appeal on a point of law. The office of Pensions Ombudsman is due to be amalgamated with the office of the Financial Services Ombudsman.

A recent High Court judgement delivered by Mr Justice Max Barrett on July 16th 2015, entitled The Minister for Education & Skills and the Minister for Education & Reform and the Pensions Ombudsman and Margaret McDermott, 2015 [IEHC 466] gives practitioners an insight into how the Pension Ombudsman deals with complaints relating to pension adjustment orders and how the High Court will deal with appeals of his decisions.

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Autumn 2015 dsba.ie Keith Walsh is principal of Keith Walsh Solicitors, Crumlin. He is a former president of the DSBA

Family Law

Background Mrs McDermott was granted a divorce from her husband by the Circuit Family Court in 2003. This was appealed to the High Court and a decree of divorce was granted by the High Court on December 4th 2003. The pension adjustment order in issue was: ‘In the event that the plaintiff [the husband] dies a widower, then the order in respect of the pension adjustment order herein shall not have effect and the defendant is deemed to be the spouse of the plaintiff for the purposes of a spouse’s pension entitlements under the plaintiff pension scheme…’

The husband died on September 17th 2009, a widower, although he had remarried and his second wife predeceased him. Mrs McDermott applied for her spousal pension in November 2009 and when it was refused, she made an application to the Pensions Ombudsman. On July 6th 2010 the Pensions Ombudsman found in favour of Mrs McDermott.

On October 24th 2011 the High Court remitted this decision back to the Pensions Ombudsman for fresh consideration and on October 8th 2013, the Pensions Ombudsman found in favour of Mrs McDermott and it is this decision which was the subject of the appeal.

Role of the Pensions Ombudsman and jurisdiction of the High Court on appeals from him Barrett J held that an appeal of this type is not a rehearing of the case but is more like a judicial review and the High Court should not apply the same standards of procedure as it would to a court. He held that there is still a judicial role but it is constrained on matters of fact and law. It is much less constrained on matters of pure law. He reviewed the recent judgement

Unless the Pensions Ombudsman commits a serious error of law in how he approaches matters, as opposed to how he interprets arrangements or documentation, his view as to what a contract means, being a mixed question of law and fact, will generally be final of the Court of Appeal in Financial Services Ombudsman v Millar [2015] IECA 127 and quoted with approval Kelly J. ‘I am of the view that the trial judge was correct in his conclusion that no curial deference is to be shown to the Ombudsman on what he [the trial judge] described as ‘purely legal questions’.

Although Millar concerned the Financial Services Ombudsman, Barrett J applied the same reasoning to the Pensions Ombudsman and went on to state that: ‘Unless the Pensions Ombudsman commits a serious error of law in how he approaches matters, as opposed to how he interprets arrangements or documentation, his view as to what a contract means, being a mixed question of law and fact, will generally be final’. the Parchment 15

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If there is a difficulty with pension trustees implementing a pension adjustment order, the beneficiary can apply directly to the Pensions Ombudsman who will make a decision of fact and law based on fairness Issues in this Case The central issues were whether the Pensions Ombudsman was bound by the law and whether he could come to a decision based on fairness. Barrett J cited with approval Kearns J in Willis v Pensions Ombudsman [2013] IEHC 352 “I accept as I must, that… the Pensions Ombudsman could not, regardless of the merits of the case, legitimately make a decision which the law did not permit. But subject only to that consideration, he enjoys a significant discretion to allow and achieve a fair outcome in relation to complaint… [T]here can be no doubt but that his decision achieved a fair result insofar as this particular complainant was concerned.”

Alleged Problems with the Pension Adjustment Order The appellants claimed that if the High Court order made on December 4th 2003 was taken to be a pension adjustment order then: 1. It did not follow the typical form of that order 2. It appeared to have been made without advance notice being given to the trustees pursuant to section 17(18) 3. The trustees were not heard prior to the making of the order 4. A copy of the High Court order was not served on the trustees.

Barrett J stated that a difficulty for the appellants was that none of the issues appeared ‘to taint the validity of the High Court Order’. Another difficulty identified for the appellants by Barrett J was that as these issues (1-4 above) were matters of both fact and law, then if Millar was applied to this case, then the High Court on appeal could not interfere with the decision of the Pensions Ombudsman.

Procedures Adopted by the Pensions Ombudsman While some procedural issues were raised against the Pensions Ombudsman, as no complaint was raised prior to the appeal, Barrett J held the appellants had acquiesced and were stopped from raising any issues regarding the procedures followed by the Pensions Ombudsman.

Factors that Barrett J believed were likely to render this case unique Barrett J was at pains in his judgement to ensure that situations were avoided where pension trustees were ‘deluged with innumerable petitions from divorce persons staking a claim to a survivor’s pension after an ex-spouse

dies’. He did not consider this realistic as this case was unique for the following reasons: a. It related to a High Court order which was still extant.

There are unlikely to be many persons who would benefit from a similar order to Mrs McDermott. b. The High Court was constrained as to the action it could take on appeal from a decision of the Pensions Ombudsman. c. The Pensions Ombudsman enjoys significant discretion to achieve a fair outcome. This means that even in a similar case he may come to a different result. Barrett J noted that the Pensions Ombudsman paid significant attention in his reasoning to the existence of the court order of December 4th 2003 which was a very rare example of a pension adjustment order.

Barrett J held for the Pensions Ombudsman and dismissed the appeal. It is understood that this ends the matter and no further appeal on a point of law will be taken.

Key points 1. A decision of the Pensions Ombudsman which relates to a question of fact and law will be very difficult to overturn on appeal to the High Court. Much less deference will be shown by the High Court to decisions of the Pensions Ombudsman which concern matters of ‘pure law’.

2. The Pensions Ombudsman can make a decision based on fairness.

3. This case may assist where a pension adjustment order was made by the Circuit or Family High Court pursuant to section 17(2) or (3) of the Family Law (Divorce) Act, 1996 but the formal element of the order was not ruled. It appears that the Pensions Ombudsman placed great emphasis on the fact that an order was made by the High Court. It is clear that the order was made without the service of the notice to trustees which is mandatory under section 17(18) of the Family Law, Divorce Act 1996. It is also clear that the trustees of the Scheme were not notified of the making of the order. It also appeared that the order was not in the usual form. The Pensions Ombudsman overlooked these deficiencies and breaches of section 17 of the Family Law (Divorce) Act 1996 and appears to have used his discretion to achieve a fair result for Mrs McDermott.

4. Implications for beneficiaries and practitioners a. Do not despair. The Pensions Ombudsman can help. b. Make sure notice to trustees is served as soon as possible and before any hearing which may involve a pension adjustment order whatsoever. c. Serve extract decree of divorce on the trustees which relates to the making of the 17(2) or 17(3) order as this will put them on notice of the making of the order even where a formal order has not yet been ruled. It will also flush out any issues with the order which can be dealt with in a timely manner. d. If there is a difficulty with pension trustees implementing a pension adjustment order, the beneficiary can apply directly to the Pensions Ombudsman who will make a decision of fact and law based on fairness. P

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Autumn 2015 dsba.ie

News

Stuart - Top of the World Stuart Gilhooly has won a global award for his interview with Muriel Walls at the Content Marketing Institute Awards 2015.

Stuart was in the mix with first having been shortlisted for his interview of the well known family lawyer which featured in the spring edition. He was up against interviews from the Delta Airlines magazine and the Southern Californian Golf Association magazine as well as interviews in Australian and Singapore publications

T

hese other contenders are all full-time journalists and yet our man Stu came out head and shoulders above the rest. It is a very fitting tribute to Stuart and recognition on a worldwide stage of his canny interview technique, an ability to get the most out of interviewees and more especially, his writing style and mastery of the pen, which is to be lauded.

Of course, Stuart is no stranger to success. He won the coveted Journalist of the Year award at the 2011 Magazine Awards. The Cross Examination scribe was then awarded with the top prize for his outstanding series of articles and interviews in the Parchment.

Commenting at the time the judges said: “he showed outstanding versatility, a delightful quirky style that was engaging and a bit irreverent plus a challenging approach in his well researched interviews with hardened lawyers.”

Stuart’s recent global award is all the more remarkable as he was competing against full-time journalists with postgraduate qualifications in journalism and years of experience working for various publications.

The Harold’s Cross based solicitor makes no secret of the fact that he loves writing but that he has no training or qualification in journalism, which makes the win even more notable.

Commenting on his win, DSBA President Aaron McKenna commended Stuart. “This is a wonderful achievement for Stuart and the DSBA. I want to thank Stuart for his wonderful commitment to writing in the Parchment and to profiling and interviewing solicitors in our publication in such an interesting way. He is due great credit and praise for this terrific achievement.”

Content Marketing Institute Awards 2015 Shortlist for Best Interview or Profile – Print or Digital • 256 Media: Muriel’s Wedding • CPA Australia: Interview with Dr Paul Brock

• MSP Communications: Danny Meyer, December 2014 • Southern California Golf Association: Harmonized: for Bill Harmon, finding success on the golf course meant first finding it in life • Tuber Productions: Loyalty is a two-way thing P the Parchment 17

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Getting Your House in Order PII renewal on December 1st may seem a long time away but it’s never too early to start getting prepared. Julie Brennan reports on an accreditation system which can put in place a working risk and quality management strategy for your firm

W

hether you’re a sole practitioner doing almost everything on your own, or a partner in a large firm with a number of other fee earners, having in place standardised systems that are independently verified on an annual basis,

provides huge efficiencies and great peace of mind.

There are many other advantages to annual accreditation including: • Client selection procedures that ensure your firm only takes on work within its capacity and competence

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Autumn 2015 dsba.ie Julie Brennan is managing director of the Institute of Legal Research and Standards. Tel: 01 676 6406 or email:jbrennan@lrsinstitute.com

• Streamlined file opening and closing procedures to make sure that all files are opened and closed in a uniform way and that required checks are always carried out • File maintenance procedures are in place to ensure that files are kept up to date with additional controls in place to deal with higher risk areas such as critical dates and undertakings • Renewing your PII insurance on more favourable terms • Improved regulatory compliance and less complaints • Increased success in tendering • CPD points to fee earners involved at the audit • Tailored free mid-year review CPD presentation to your staff • Updated policies and procedures and newsletters on topical issues.

The audit process is straightforward and is collaborative with the auditor working with your firm.

The auditor can provide as much or as little assistance as required to prepare your firm for the audit with pre audits, consultancy and a full range of templates available. CPD points are awarded to any fee earners involved on the day of the audit. A minimum of five files are reviewed on every audit and this counts as a peer file review for the purpose of the common proposal form. Completed file reviews are always left with the firm to ensure client confidentiality and to allow any corrective action to be carried out. Detailed reports are provided after the audit with constructive suggestions on how the firm might improve.

The cost of annual accreditation is less than you might think and represents excellent value for money when compared to the time and effort of putting in place a strategy on your own or the time and resources wasted in dealing with any complaints, notifications, regulatory complaints or claims. In addition, quality accreditation will mark your firm out from your competitors as one that is well managed, organised and focused on quality and best practice compliance.

Q1000 Standard Our Q1000 standard is designed for sole practitioners only. There are 16 individual areas examined including client engagement procedures, undertakings and critical dates procedures, regulatory and claims history and a particular focus on succession planning due to the unique risk in this area for sole practitioners. The cost of the audit and accreditation is €495.

Q3000 Standard The Q3000 standard, as the name suggests, has three modules and is most suitable for smaller firms or firms starting out in putting a risk management strategy in place. The three modules examined are client and file management, regulatory history plus claims history and management. The cost depends on the size of the firm and starts at €750 for a firm with 1-3 solicitors, rising to €1,050 for a firm with 7-10 solicitors.

Q6000 Standard The Q6000 builds on to the three modules of Q3000

Practice Management

The cost of annual accreditation is less than you might think and represents excellent value for money when compared to the time and effort of putting in place a strategy on your own or the time and resources wasted in dealing with any complaints, notifications, regulatory complaints or claims with additional modules in the areas of practice management, IT systems and financial management.

This standard is more suited to medium to large sized firms. The cost of the audit and accreditations starts at €1,250 for firms with 1-3 solicitors and goes up to €1,600 for firms with 7-10 solicitors.

Q9000 Standard The Q9000 standard was introduced in 2013 and sees a notable shift towards quality while including risk checks from the earlier modules. It introduces an additional three modules to the six modules of Q6000, namely advanced financial management, strategic and marketing planning and advanced IT, information and knowledge management. This standard is aimed at firms with excellent procedures already in place which have a real commitment to quality and best practice.

The cost of the Q9000 audit starts at €1,900 for a firm with 1-3 solicitors and rises to €2,500 for a firm with 7-10 solicitors. We regularly audit larger firms to this standard and can provide details on pricing if required. This standard also includes a full file review with a minimum of ten files reviewed (at least one per fee earner) and analysed in a separate report. For larger firms, we review at least one file per fee earner.

Membership All accredited firms must also become members of the Institute of Legal Research and Standards. The cost of membership is €50 for a Q1000 sole practitioner, €100 for a 1-3 solicitor firm, €150 for a 4-6 solicitor firm and €200 for a 7-10 solicitor firm. Members are sent quarterly newsletters on topics of interest.

We provide all of our member firms with new and updated policies at the beginning of each year. We also provide a unique mid-year review whereby we offer an optional CPD review session to the firm with the cost of the review taken off the cost of the audit later in the year. We have found this review session to be extremely beneficial in helping firms to improve their performance at the audit.

Our Team We have a team of six auditors spread throughout Ireland. They are all Irish qualified solicitors with relevant experience. Our standards have been developed for the Irish legal market and are tailored to suit its particular requirements. P the Parchment 19

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In From the Cold

In 1975 Kieran Conway was released from Long Kesh prison having served three years for explosive charges and was immediately appointed IRA director of intelligence. Forty years later, he’s a criminal lawyer practising in the Republic and an officer of the court. His excellent book chronicling his life in the IRA from 1969 to 1975 has sold over 4,000 copies. Stuart Gilhooly met the Blackrock boy with no connections to the North and asks him why he got involved and how he got out

K

ieran Conway is both brutally honest and a mass of contradictions. He’s the middle class southside boy, who at the age of 19 decided that his vocation was to join the Provisional IRA and fight for freedom, as he saw it. Yet he had no connection to the North at all, having been born to southern parents in Blackrock, an avowed atheist who hates the Irish language with a passion, and has no time for the GAA. There’s no obvious reason for what became, with a six-year hiatus, a 24 year dedication to a cause which divided two nations and caused the deaths of countless innocent people.

He regrets the demise of innocent civilians but believes all soldiers are casualties of war.

He feels that the war was lost but still thinks Sinn Fein sold out. But most of all, he has no personal regrets – apart from that the campaign was lost and it was all for nothing.

Welcome to the world of Kieran Conway, a fascinating individual and a study in selfbelief. At least on this subject.

Born on a Different Cloud

There was never a point where I doubted it. I was completely and utterly dedicated. It looked like we were winning

It’s probably fair to say that not many of his classmates in Blackrock College went on to become senior officers in the IRA. After school, he followed the path of least resistance to begin with and signed up to do law in UCD. What would persuade a young boy who had no connections to the fight, with Fine Gael supporting parents, to give up his comfortable existence and live a life of poverty, terror and the always imminent threat of death, both to himself and others?

To this day, he struggles to find a satisfactory answer.

“I went to college in 1968 against the backdrop of the student revolutions around Europe. I became very caught up in that. I went to all the protest marches. Earlsfort Terrace where the law faculty was at the time, was a hive of communists, anarchists and so on and so forth. Then the North blew up and I thought the proper thing to do if I was serious was to join the Republican club in UCD. I was made secretary of it in

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Autumn 2015 dsba.ie Stuart Gilhooly is a partner at HJ Ward & Co Solicitors and former president of the DSBA. He has won a number of journalistic awards for his writing

Cross Examination

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I always say, what is there for middleclass, middle-aged men who have never had a proper job? Journalism and the law. They are two things anyone can do if they have the ability Christmas 1969 and after the Christmas break, I decided I wanted to join the IRA.” His initial efforts to join the official branch were stymied by their refusal to accept a soldier that didn’t fit the bill as they saw it.

“They told me that ‘we want men like you to get your degrees and be people of influence within the media or trade unions or whatever’,” he said.

His desire to play a role was not dimmed by this rejection and if anything it intensified into what soon became desperation.

“I was absolutely desperate. I have no idea how the transformation came about. This was absolutely the only thing I wanted to do. It was surprisingly difficult to do, it took me nine months to become a member of the Provisional IRA.” However, once he approached the right people, the Provisionals were happy to accept him for their cause. He failed his second year law exams, never returned to that degree and went to London to begin a life where he would spend the next five years either on the run, plotting subversion or, for the majority of that period, in jail.

been. It wasn’t the standard incarceration.

Political status made life easier for the republican inmates and the camaraderie that existed between them carried them through, together with the unstinting belief that they were fighting a cause they would win.

“I had political status which gave us the right to wear our own clothes, to have food parcels and various other privileges but the main element was recognition of the IRA command structure in prison. The command structure gave us a purpose and kept us busy.

The republicans did Open University courses and the loyalists went to the gym.”

While serving time in Crumlin Road, before he was moved to Long Kesh, Conway was involved in one of the first hunger strikes – though subsequently dwarfed by the 1981 marathons that resulted in the deaths of Bobby Sands and nine others – was hugely significant at the time. The 23 days he spent on strike, like so much else that went on during that period, proved quite a trial although was ultimately considered a necessary evil.

“I was completely committed. It never crossed my mind not to do it.”

Put Yer Money Where Yer Mouth Is

Soldier On

Was there ever a time when he thought he had made a huge mistake and wanted to return to UCD and his straightforward path to middle class normality? He is steadfast and trenchant in his view that he never once flinched.

“There was never a point where I doubted it. I was completely and utterly dedicated. It looked like we were winning.”

After a year of training and gradually rising through the ranks, he felt he could be part of history. There was a feeling in the Republican movement that victory was close and they could all feel it. Then he was caught in a safe house with a substantial amount of explosives and was sentenced to four years as well as another three years for possession of firearms in his prison cell.

“I was very fortunate that I got sentenced in May 1972 at a time when everyone was getting short sentences just coming up to the truce period and it really looked like we were winning. Stormont had fallen and the unionists were very rattled including the judges. They were very moderate in terms of sentencing. A few months later I would have got 14 years.”

Prison wasn’t the nightmare it should have

He was released in 1975 having served three years and immediately returned to active service where he was soon appointed as director of intelligence, a position he vacated when he left later that year.

“It sounds grander than it actually is; all the files I created were still there, untouched, when I came back six years later.”

Later that year, he left the movement after a disagreement with the chief of staff at the time.

“I left in 1975 at a time of severe dysfunction in the movement. The ceasefire had unravelled a bit and I had a run in with the then chief of staff, Seamus Twomey who asked for my resignation which I gave.”

I’m Outta Time “I did an arts degree and completely forgot about the Republican movement until I came back in 1981 during the hunger strikes.

“I was asked to come back after meeting an old comrade. I held various positions both north and south. I don’t talk about it now.

It’s too recent and potentially incriminating.

I left in 1993 on the night of the signing of the Downing Street Declaration.

“People say you can’t leave the IRA but in fact you can. They don’t want people who don’t want to be there.”

There is a steeliness about Conway which is either the product or the cause of his devotion to the Republican movement. He appears completely unfazed about what many of his colleagues and most of middle class Ireland would regard as a very shady past. Whenever I bring up the subject of regrets, he doesn’t hesitate in his rejection of any such thoughts. Except on the issue of civilian deaths where his view is coloured by republican tinted glasses.

Love Like a Bomb While he takes the view that the Loyalist side consistently targeted innocent civilians, he is adamant that the myriad casualties which the IRA took responsibility for, were legitimate as long as British soldiers were the target.

“The [killings] that were accidents like Birmingham, they were all the result of what Mandela called the fallibility of the combatant. Mistakes were made and people died. It was an unfortunate byproduct of a bombing campaign and I never agreed with it. I was in loads of arguments over the years and always on the losing side in relation to that.

“The ones that went wrong were mistakes but there were plenty that went right. I have never had the slightest respect for the Loyalists. Their idea of war was to kill innocent Catholics. They were doing it deliberately.”

It’s telling that Conway finally departed the movement on the night of the Downing Street Declaration. His outlook on the peace process is typically honest but not especially consistent.

“I’m sickened by the mendacity and hypocrisy of trying to paint what was a defeat, as a victory.

“I’ve mellowed over time mainly due to the inevitability of the defeat. If it was up to me, I would have encouraged the IRA to dump arms, declare a ceasefire and melt back into civilian life. The SDLP would have been the beneficiaries and I don’t think that would have made the slightest bit of difference. In fact, it might have been more beneficial than Sinn Fein being in government.”

Don’t Look Back in Anger His views, he says, are shared by many of his former comrades and there is a general malaise about the way that Sinn Fein handled the peace process among his colleagues in the north. Does he see many of them now?

“Since the book came out, I haven’t been to Northern Ireland as I might be arrested and serve some time. Before that I was back in Derry and they were all as disillusioned with Adams and the peace process as I am.

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Autumn 2015 dsba.ie

Cross Examination

Photography: Bryan Meades

The support for Sinn Fein is not coming from old IRA men, many of them wouldn’t even vote for them.”

However, like him, even though they feel let down by Sinn Fein, for reasons which still aren’t quite clear to me, it would appear that the general impression is they were well beaten by a juggernaut which had more might and a lot more nous. If it was football, it would be the plucky non-league team that scored early on and desperately fought for victory, but eventually lost out in extra time as the Premier League outfit showed its strength in depth, extra fitness and superior skills.

“They would like to have seen victory but most people accepted that the IRA had been effectively defeated. The British are superb.

They have centuries of experience and they outfoxed them. It was a complete defeat.

The final position was no better than on offer in the early 1970s.”

Except that this wasn’t sport, it was real life and real death. Conway takes a dispassionate and detached view that might be expected of a warrior so devoted to the cause, but it is still surprising to see the complete absence of remorse (aside from regret for civilian casualties) for what was effectively a futile battle from his point of view at least.

Kieran Conway at a glance

NAME Kieran Conway PARTNER Marie CHILDREN Kevin (25) BIGGEST INFLUENCE ON YOUR LEGAL CAREER Garrett Sheehan, my master during apprenticeship FAVOURITE MOVIE Heaven’s Gate FAVOURITE SINGER Bob Dylan/The Doors HOBBIES Sea swimming, scuba diving, drinking beer

I Can See a Liar His views on Gerry Adams are interesting if again, a little contradictory. In his book, he describes Adams as a “mendacious lying bastard”, yet when we discuss him, a large degree of warmth and admiration is apparent.

“Given what he had to do, I have a huge respect for him but I wouldn’t vote for him.

I knew him personally but not as well as I knew Martin McGuinness. I have huge respect for Martin too.”

After the war was over, Conway found he had a lot of life left to live and fell into journalism to begin with before his past was exposed and he found it was a career that had little time for former Provos.

“Sean O’Callaghan named me as a GHQ officer in his book though not many people noticed that then, Tom Murphy took a libel action against The Sunday Times and then I had the newspapers pursuing me.”

He was effectively forced out of journalism as a result and after a short period in the pensions industry which he found “terribly monotonous”, he went back to where it all began. Except this time his legal studies brought him to Griffith College. Did he always feel a hankering to return?

“No, not at all. I always say, what is there for middle-class, middle-aged men who have never had a proper job? Journalism and the law. They are two things anyone can do if they have the ability.”

Live Forever After enrolling at Griffith College in 2001, he finally qualified as a solicitor in 2004.

Having done his apprenticeship with Garrett Sheehan, he remained there until 2011 when he took redundancy and undertook a shortlived stint at the bar.

“I went to the bar for a couple of years which was not a success. I liked the bar very much but I wasn’t making any money. The only people briefing me were my old office so I did two years and then came back.”

He’s back a year now and is practising on his own.

“I set up a sort of agency doing garda station detention for other offices. I’m available seven days of the week and any time of the day.”

Married With Children He is happily married and has one son.

“I do have one regret in life which is not having a daughter. My son respects my past but that’s about it. He wouldn’t agree with any of it. I started the book for him. He

knew nothing at all about me. He would have just thought of me as a crank socialist shouting at the TV.” Although remaining steadfastly left wing in his political views, he can find no political party to float his boat.

Which hardly places him in a tiny minority.

These days, Kieran Conway spends most of his time in garda stations and the courts while any downtime is whiled away scuba diving in Lanzarote.

Maybe, having spent a good portion of his life living in an underworld where danger lurks in every corner, submerging himself in the Atlantic Ocean with exotic sea creatures is a natural escape. P the Parchment 23

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Autumn 2015 dsba.ie Brian Broderick and Finola O’Hanlon are tax practitioners at O’Hanlon Tax Ltd

Taxation

The Tax Man Cometh Us Irish are drawn towards owning property and nobody likes paying tax. In Revenue’s eyes, this is a potentially dangerous mix and the taxman has been targeting landlords since the origins of the Irish property love affair. Finola O’Hanlon and Brian Broderick say that this time, Revenue might just have it nailed

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n article in the previous edition of this publication highlighted the fact that there were 5,534 audits and other compliance interventions in relation to rental properties in 2014. Approximately 539 of these were full scale audits which resulted in a yield of €22.4m (average yield of circa €42,000) and 4,995 were non-audit compliance interventions resulting in a yield of €21.7m (average yield of circa €4,000). The conclusions that can be drawn from this are that Revenue should continue to focus on the rental sector, and it is in taxpayers’ interests to try and avoid a rental income audit.

Revenue Sources Revenue is drawing information from a variety of different sources to facilitate the review of landlords. At the Public Accounts Committee hearing the Revenue chairman Mr Niall Cody said on July 2nd 2015 that: “We select cases for intervention based on the presence of various risk indicators and other information available to us. Third-party information is a really important element...

Matching this data against returns filed by taxpayers… has been a feature of our compliance strategy for many years.

This approach is particularly relevant in the rental income sector where significant amounts of third-party information is made available to Revenue and matched to landlord records.

Currently this data includes Private Residential Tenancies Board data, rent subsidy payments from the Department of

Social Protection, rental accommodation scheme payments from the Department of the Environment, Community and Local Government, student accommodation lists, letting agent returns, non principal private residence data and of course our own local property tax data.”

Revenue also has information from stamp duty returns and Home Renovation Incentive (HRI) records. The extension of the HRI scheme to landlords in the Finance Act 2014 allowing landlords to carry out improvements or repairs on a rental property and avail of relief on the cost, may have been as much about encouraging tax compliance as providing landlords with a tax break.

Revenue officials have also been known to focus on housing estates where there’s a high level of rental properties, carrying out door-to-door checks within these estates.

The Local Property Tax (LPT) register may be the jewel in the crown for Revenue when it comes to tracking rental properties. The LPT register gives Revenue a clear picture of the number of houses and other dwellings in Ireland. And together with other Revenue information (e.g. taxpayer correspondence addresses), Revenue can identify the properties that are not occupied by owners and therefore may be available to rent.

In addition, the linking of the LPT data with PPS numbers means that Revenue can identify the taxpayers that hold more than one property and who are potentially active as landlords. the Parchment 25

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Water Charges

In most cases, Revenue will give a taxpayer who has undeclared rental income an opportunity to make an unprompted voluntary disclosure by raising a compliance query, rather than launching an audit

Water charges have been a hot topic of late and Irish Water has asked landlords to provide it with tenants’ details so that Irish Water can bill the tenants.

There was a potential data protection issue for landlords but a new S. 23A Water Services (No 2) Act 2013 (inserted by S.47 Environment (Miscellaneous Provisions) Act 2005) requires landlords to notify Irish Water of tenants’ details and makes the landlord liable for water charges if he fails to provide these details. An article

by Gary Fitzgerald in the August/September issue of the Law Society Gazette deals with this issue in more detail.

Dealing with Undeclared Rental Income In most cases, Revenue will give a taxpayer who has undeclared rental income an opportunity to make an unprompted voluntary disclosure by raising a compliance query, rather than launching an audit. The benefits of making such an unprompted voluntary disclosure are that reduced penalties apply and publication as a defaulting taxpayer is avoided.

If a landlord has undeclared rental income and Revenue have not raised a query, it may be possible to minimise interest and penalties by declaring the rental income on a voluntary basis. Given the Revenue focus on rental properties, consideration should be given to regularising historic income tax returns in cases where tax has been underpaid on rent.

Reliefs There are few tax reliefs for residential rental income. The main reliefs are rent-a-room relief and the well-known Section 23 relief. The Section 23 type reliefs operated to generate a large rental loss when an investment property was purchased, constructed or refurbished. Most landlords who were eligible would have claimed and used this relief a number of years ago, so Section 23 relief is now most relevant in the context of property sales. The sale of a Section 23 property within 10 years of first letting can result in a clawback of tax relief claimed.

The rent-a-room relief allows a taxpayer to rent a room (or rooms) in a residence free of income tax if the income does not exceed €12,000 per annum and the residence is the taxpayer’s main residence. This relief has seen some media coverage recently as Revenue has indicated that income arising from online accommodation booking sites

such as Airbnb is trading income – and not rental income, so rent-a-room relief would not be available.

Deductions Some deductions are available for expenditure incurred by a landlord renting property.

The expense must be incurred by the taxpayer and cannot be capital in nature; i.e. the expense must relate to maintenance or repair of the property rather than improvement of the property. When calculating the taxable profit on more than one rental property, a separate calculation should be done for each property and the following expenses may be deducted: • Ground rent • Rates payable to a local authority • The cost of any service or goods provided to the tenant which are included in rent – (e.g. gas, electricity, water and refuse collection) • Maintenance costs for the property – e.g. cleaning, painting and decorating • Insurance of the premises against fire and public liability, etc.

• Costs of management – e.g. the actual cost of collection of rents and advertising for tenants, legal fees to cover the drawing up of leases, or the issue of solicitors’ letters to tenants who default on payment of rent • Accountancy fees paid for the preparation of a rental account • The costs of repairs such as damp and rot treatments, mending broken windows and doors, and replacing roof slates.

Interest arising on a loan used to purchase, improve or repair a rental property can be claimed as a deduction from rent and certain mortgage protection policy premiums taken out to secure the loan, will also be allowed. It should be noted that if a mortgage is on a ‘capital and income’ basis the capital element of the mortgage repayments cannot be deducted for income tax purposes. The lending institution will issue a letter or interest certificate after the end of each calendar year advising of the interest charged on the loan in the course of that year. From April 7th 2009, only 75% of the interest paid on a loan for a residential property can be deducted.

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Autumn 2015 dsba.ie

Taxation

Since 2006, a landlord needs to have registered with the Private Residential Tenancies Board (PRTB) to claim an interest deduction. A PRTB registration lasts for four years, so if a tenancy continues beyond four years the tenancy needs to be re-registered.

Expenses Not Allowed The following expenses are not allowed as a deduction in calculating the net rental income subject to income tax: • Pre-letting expenses, (an exception is made for auctioneer’s letting fees, advertising fees and legal expenses incurred on first lettings, which are allowed) • Post-letting expenses – i.e. expenses incurred after the final letting • Capital expenditure (generally allocated to CGT, not income tax) • Local authority charges (e.g. the €100 household charge and the €200 NPPR charge) • Local property tax The Revenue will not allow an expense claim unless a payment has been made, so a taxpayer who works on his own rental property is not allowed to claim a deduction for the value of his own labour.

Capital Allowances Wear and tear allowances are available for the capital cost of fixtures and fittings (furniture, kitchen appliances etc.) provided to furnish rented residential accommodation. The expenditure must be incurred wholly and exclusively on a property which is used solely as a dwelling and let, furnished on bona fide commercial terms on the open market. The rate of wear and tear allowed depends on when the capital expenditure was incurred. For expenditure incurred on

It should be noted that if a mortgage is on a ‘capital and income’ basis, the capital element of the mortgage repayments cannot be deducted for income tax purposes or after December 4th 2002, the allowance is 12.5% per annum and the allowances are granted over a period of eight years.

Full tax relief is available on expenditure qualifying for capital allowances and the primary difference between capital allowances and the deductions outlined above is, that capital allowances expenditure is relieved over an eight-year period instead of a single 100% deduction in the year that the expenditure is incurred.

Conclusion If rental income is being returned to Revenue, a landlord will want to ensure that the above deductions and allowances are claimed (insofar as they are applicable) to minimise tax liabilities. This should be a taxpayer’s focus when returning historical, undeclared rental income or filing annual income tax returns.

Given the yield from compliance interventions on rental properties, it’s likely that Revenue will continue to focus on landlords and to encourage income tax compliance. P the Parchment 27

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Consumer Protection Enhanced Vicky Pigot assesses the new Consumer Protection (Regulation of Credit Servicing Firms) Act 2015 (the Act) which came into force on July 8th 2015 and she outlines the impact this new legislation will have on unregulated financial services operators

T

he new Act is designed to ensure that consumers and small-to-medium enterprises (SMEs), whose loans are sold by a regulated entity to a currently unregulated entity, retain the same regulatory protections such as the code of conduct on mortgage arrears, the code of conduct for business lending to small and medium

enterprises and the Consumer Protection Code (the Codes) that they had prior to the sale of the loan.

The immediate impact of the Act is that existing, exempt retail credit firms and credit servicing firms must have applied to the Central Bank to become authorised as credit servicing firms before October 8th 2015.

The Act has transitional provisions to allow existing

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Autumn 2015 dsba.ie Vicky Pigot is a senior associate at Kane Tuohy Solicitors and she is a council member of the DSBA

firms seek and obtain authorisation from the Central Bank while continuing to do business, but they must obey the codes in the meantime.

Background Sales of loan portfolios on the Irish market saw in excess of €30bn in transactions in 2014, over €80bn in the last four years, and the outlook is for this trend to continue over the next three to four years as the work out of loans progresses.

Although many purchasers of loan books had already agreed to voluntarily apply the codes when managing loan books, voluntary compliance is not enforceable.

The Act creates a new type of regulated entity called credit servicing firms, and requires those entities dealing with consumers to be authorised by the Central Bank and subject to the codes mentioned above.

What is Credit Servicing?

The Act defines credit servicing as managing or administering a credit agreement entered into by a creditor with a ‘relevant borrower’ (consumers or small-to-medium enterprises that entered into a credit agreement with a regulated financial service provider), and includes the following activities: • Notifying the relevant borrower of changes in interest rates or in payments due under the credit agreement or other matters of which the creditor requires the borrower to be notified • Taking any necessary steps for the purposes of collecting or recovering payments due under the credit agreement from the relevant borrower • Managing or administering a number of matters under or in relation to the credit agreement including repayments, charges, errors, complaints, information or records, restructuring and assessing the relevant borrower’s financial circumstances and ability to repay under the credit agreement • Communicating with the relevant borrower in respect of the above matters.

Specifically the Act excludes the following activities from the definition of credit servicing: • Determining the overall strategy for the management and administration of a portfolio of credit agreements • Maintaining control over key decisions in relation to such portfolios • Or taking such steps to enable another person to undertake credit servicing or to enforce a credit agreement. provided that these activities are not conducted in a way that would be prescribed to be in contravention if they were carried out by a regulated financial service provider.

What is a Credit Servicing Firm?

A credit servicing firm under the Act means a person (other than NAMA or a NAMA group entity) who:

Financial Regulation

Regulated financial service providers which prior to the Act did not require authorisation as a retail credit firm, being authorised for some other purpose, will now need to be authorised as a retail credit firm before lending to a person a) Undertakes credit servicing on behalf of an unregulated entity b) Or holds the legal title to credit granted under a credit agreement in respect of which credit servicing is not being undertaken by a person authorised to carry out the business of a credit servicing firm.

Existing regulated financial service providers authorised to lend in Ireland by the Central Bank or another EEA regulator on a passporting basis, are deemed to be authorised to carry out the business of a credit servicing firm.

Regulated financial service providers which prior to the Act did not require authorisation as a retail credit firm, being authorised for some other purpose, will now need to be authorised as a retail credit firm before lending to a person.

Transitional Provisions The submission of an application to the Central Bank

by October 8th 2015 deemed existing, exempt retail credit firms and existing credit servicing firms to be authorised and allow them to continue to provide services pending a decision being made on their applications.

All firms deemed authorised by the Central Bank are required to comply with the requirements of financial services legislation, including without limitation: 1. Consumer Protection Code 2012 2. Code of Conduct on Mortgage Arrears 2013 3. Code of Conduct for Business Lending to Small and Medium Enterprises 2012 4. The Minimum Competency Code 2011 5. Part V of the Central Bank Act 1997 (as amended) 6. Fitness and Probity Regulations and Standards issued under Part 3 of the Central Bank Reform Act 2010 It is important therefore that any credit servicing firm seeking to avail of the transitional arrangements takes immediate steps towards making any necessary changes to its systems, policies, procedures, documentation and provide any necessary staff training to ensure that it is in a position to comply with each of these regulatory requirements.

Finally, it is a criminal offence for an entity to carry on regulated financial services business in Ireland without the required authorisation. P the Parchment 29

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Only Fools and Horses Conor MacGuill assesses the obligations on solicitors advising persons in garda custody and paints a picture of the difficulties arising and potential solutions

Trigger’s Broom

The logistics of providing this service places an additional strain upon all firms who practise in this area, particularly smaller ones who must engage manpower to be available, if and when required

In one of the more memorable scenes from the classic sitcom Only Fools and Horses, council street sweeper Trigger explains how he had mentioned to a councillor that he’s received a commendation for having the same broom for 20 years. He keeps the presentation photo on the wall. In some fabulous dialogue, Trigger explains that his brush has had 14 new handles and 17 heads. When he’s asked how it could be the same broom, he points to the photograph and declares: “Here’s a picture of it. What more proof do you need?” His audience is speechless with incredulity.

The Exclusionary Rule The dicta set out in DPP v. Kenny which has prevailed since 1990, was ruptured earlier this year in a decision entitled DPP v J.C. by the Supreme Court. This case arose by way of a challenge by the Director of Public Prosecutions to a decision made by a trial judge directing the jury to acquit the accused of the charges set out on the indictment. The content of these decisions which is also as noteworthy, referred to disagreement within the appeal court which will, I am sure, be the subject of more learned commentary elsewhere. However, a number of salient features are relevant for the purposes of assessing their effects on the obligations thrust upon solicitors advising persons in garda custody.

The upshot of the majority decision is that inadvertent breaches or if you prefer, mistakes – which could lead to the breach of a suspect’s constitutional rights are to be tolerated and ought not, of themselves, lead to the exclusion of a particular piece of evidence on the basis that it had been unconstitutionally obtained. Among the four written decisions, the dissenting judgement of Liam McKechnie sets out most clearly what the background to the application was and what the likely effects of it will be. He notes the DPP’s chagrin that the court did not take the opportunity in the 2010 case of DPP v Cash to reverse the exclusionary rule set out in Kenny which

had clearly been troubling the director. Much of the dissenting judgement comments upon the manner in which the application came before the court – by way of an application relating to a decision in the trial court, in which all sides agreed that the judge ruled in accordance with the Constitution. Looking forward, he said, the likelihood is that the effects of the decision will elongate voir dires within the course of a trial which of themselves, could become points before the recently constructed criminal branch of the Court of Appeal.

Gormley and White These two appeals dealt with by the Supreme Court in close proximity to each other, concerned the right of a detained person in custody to a solicitor – in one instance prior to interview and in the other, prior to an intimate sample being taken. This right of access was resoundingly affirmed. Some commentators interpreted this decision as mandating the presence of a solicitor during interrogation. This reading is not obvious from the judgements which do refer to the views of the European Court of Human Rights. But an assumption was made that if the court proceeded along this line of jurisprudence, what was actively being canvassed for, may become inevitable. These decisions were sufficient however, to put the well-oiled Law Society publicity machine into overdrive with an e-bulletin issued to members and an event which attracted CPD points with no corresponding fee taking place on May 7th 2014. The sudden appearance of a roaming constable at a Peckham Street market would scarcely have prompted a more alacritous response.

DPP Permits Presence of Solicitors During Garda Station Interviews Two days beforehand, the DPP announced that with immediate effect, solicitors were permitted to be present with detained persons during garda interviews. This

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Autumn 2015 dsba.ie Conor MacGuill is president of the Louth Bar Association and a member of the DSBA litigation committee. He clearly watches too much TV

was warmly welcomed by the Law Society, again in an e-bulletin, and referred to at the conference. Those in attendance were told that the society would provide full training to those who wished to be accredited with the appropriate level of knowledge and expertise to advise in these situations. A standard would be set below which no solicitor could competently provide this new aspect of advice to arrested persons during the course of their detention.

Ship of Theseus As with the much renovated vessel of antiquity and the broom of which Trigger is so proud, the landscape of advising in these circumstances bears almost no resemblance to what had traditionally been the procedure. This is particularly true in relation to the provisions on adverse inference introduced in recent criminal justice legislation, which offer much scope for confusion, not least to the gardaí who may invoke them during the course of an interrogation. The gold standard alluded to, has not materialised and the Law Society has struggled to cobble together even a set of guidelines which would assist practitioners.

One possible impact of J.C. is that the presence of a solicitor during an interview which later is the subject of an inquiry during the course of a trial, could indemnify the prosecution in respect of an inadvertence not apparent either to the solicitor or the investigating gardaí. It is likely that the solicitor, now a witness to what may have occurred, will be required to give evidence during the course of such a voir dire, potentially copperfastening the prosecution against his or her client. The prospect of a negligence action cannot be ruled out. That no meaningful guidance has been provided by those who are, to say the least, enthusiastic about this development, is most alarming. The Director of Public Prosecutions, who has been canvassing for a reversal of the exclusionary rule, must be similarly

Criminal Law

enthusiastic about the presence of our colleagues advising their proofs.

Heroes and Villains The logistics of providing this service places an additional strain upon all firms who practise in this area, particularly smaller ones who must engage manpower to be available, if and when required. Many colleagues have left this area of practice on the basis of inadequate remuneration and other reasons. It is difficult to facilitate on financial grounds, particularly against the backdrop of a sustained reduction in fees payable under the Criminal Justice Scheme, while adequately servicing other, albeit less immediate work. The practice is rendered especially problematic by the random nature of requests to be present during interviews – interviews which can take up to three hours out of every four, and which may be repeated during detentions which can last up to seven days. Another elephant in the room is the acknowledged mistrust among practitioners, resulting in the recommendation of notices to court users and the engagement of a ‘secret shopper’ by a taskforce established by the Law Society.

What More Proof do we Need?

A rota system light years beyond the no doubt laudable, ‘find a garda station solicitor’ section on the Law Society website is clearly required. And a system which is fully accredited, managed and adequately remunerated is necessary to bring some balance and perspective to this area of practice which is emerging, not because it simply is the law (which it isn’t) – but because the presence of solicitors during interviews is now permitted by those responsible for the prosecution of crime in this country.

Meanwhile, the regulators and representatives of the profession are scratching their collective heads and wondering how a new head and handle make it the same broom. P the Parchment 31

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Autumn 2015 dsba.ie Lidia Levingstone is a solicitor in the health and social care team at ByrneWallace

Litigation

You say it Best, When you say Nothing at all The right to remain silent and the privilege against selfincrimination are fundamental rules of Irish law. Lidia Levingstone assesses the situation where a person has the misfortune of being the subject of both civil and criminal proceedings and how the courts deal with such a scenario

T

he courts have determined that the right to silence which applies to an accused facing criminal proceedings, does not extend to give the accused as a matter of right, the same protection in contemporaneous civil proceedings. It has been determined that the right to silence may have to give way to the exigencies of the common good, provided that the means used to curtail the right are proportionate to the public objective to be achieved.

With enhanced regulation and increasing criminalisation of matters once regarded as civil, the scope for an overlap in civil and criminal proceedings has become even more prevalent. What follows is a brief

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The defendants argued that the conduct of the civil proceedings would amount to a denial of the right to silence and that there was a risk that the publicity resulting from the conduct of the civil proceedings may prejudice a fair trial overview of some of the decisions taken by the courts when confronted with the question of how to proceed fairly with broadly parallel civil and criminal proceedings.

In 2005, in the case of C.G. v Appeal Commissioners an application was made to stay an appeal in relation to income tax assessments pending the determination of criminal proceedings against the applicant for failure to make tax returns. The applicant contended that the refusal to grant an adjournment of the civil proceedings was a breach of his constitutional right to justice and fair procedures, and that it exposed him to a risk of unfair trial and prejudiced his right against self-incrimination. An injunction was sought staying the civil proceedings until the determination of the criminal proceedings.

Ms Justice Finlay Geoghegan in refusing the injunction, accepted that there was “no absolute obligation to adjourn the civil proceedings” and she indicated that it is a common case “that each application to adjourn proceedings of a civil nature pending the determination of criminal proceedings, must be determined on its own facts”. The onus was on the applicant to establish that there was “a real risk of prejudice or injustice” if the civil proceedings were to go ahead.

In 2006 the issue came to be determined again in the High Court case of Wicklow County Council v O’Reilly.

Civil proceedings were instituted seeking orders pursuant to the Waste Management Act 1996 and one of the defendants was also the subject of criminal charges under the Waste Management Act 1996 to 2003. A stay of the civil proceedings was sought pending the resolution of the criminal proceedings. The defendants argued that the conduct of the civil proceedings would amount to a denial of the right to silence and that there was a risk that the publicity resulting from the conduct of the civil proceedings may prejudice a fair trial.

In considering the issue Mr Justice Clarke distinguished the case from Re National Irish Bank (No. 1)[1999] 3 I.R. 145 in which the applicant was compelled to answer questions under pain of criminal penalty. Mr Justice Clarke declined to grant the stay sought, determining that there was no absolute obligation to stay civil proceedings when contemporaneous civil and criminal proceedings arising out of the same matter were instituted.

The issue arose again in September 2015 by way of judicial review proceedings in the High Court. The case was held in camera and the details of the case are only available through media reporting (Irish Times, September 16th 2015). In that case a parent challenged the district court judge’s refusal to adjourn civil proceedings until after criminal proceedings were finalised. The parent argued that without an adjournment, he must choose between his right to silence and his right to protect his family. The task faced by the district court was to harmoniously strike

a balance between the competing constitutional rights, to which I now turn.

Article 38.1 of the Constitution states: “No person shall be tried on any criminal charge save in due course of law”. Article 38.1 has been interpreted by the courts to embrace a range of rights, including the right to silence.

The Supreme Court in Heaney v Ireland1 recognised the constitutional status of the right to silence as a correlative right to freedom of expression guaranteed to citizens by Article 40.6 of the Constitution.

In Re National Irish Bank (No. 1) Barrington J confirmed that a trial in due course of law “requires that any confession admitted against an accused person in a criminal trial should be a voluntary confession, and that any trial at which an alleged confession other than a voluntary confession was admitted in evidence against the accused person, would not be a trial in due course of law” within the meaning of Article 38.1.

The Constitution also provides protection to fundamental personal rights of the individual. Article 41 of the Constitution specifically recognises the family as the natural primary and fundamental unit of society. To add to the balancing equation the 31st Amendment of the Constitution (Children) Act 2012 was signed into law on April 28th 2015. Article 42A affirmed the natural and imprescriptible rights of children.

The parent in the most recent challenge argued that he wished to participate in the civil proceedings to protect his family, but he had a right not to incriminate himself and there was a risk that he could do so if he gave evidence in the civil proceedings.

The High Court considered the risk of interference with the criminal proceedings and whether there was a risk of prejudice to the parent. It had been argued against the parent that self-incrimination was “a red herring” as the parent denied the allegations against him. In refusing the challenge, the High Court found “absolutely no flaw” in the manner in which the district court judge exercised his discretion to refuse to adjourn the proceedings.

While none of the above cases were successful in obtaining a stay of the civil proceedings, it remains possible that a challenge could succeed. For example, one can imagine a situation where the defendant is compelled to answer questions, or if the defendant wishes to make a partial admission. The courts have set the bar high in determining when a stay can be granted. Mr. Justice Clarke in the case of Wicklow County Council summed up the position as follows: 1. “There is no hard and fast rule as to how contemporaneous civil and criminal proceedings arising out of the same matter should be progressed.

2. It is clear that the onus rests upon the party seeking a stay of the civil proceedings to establish the grounds necessary to enable the court so to do. (a) In coming to any such assessment the court must, on the one hand, give due recognition to the importance of allowing the plaintiff or other moving party in the civil proceedings to achieve a timely resolution of those proceedings and obtain the benefit of any orders which might be appropriate. (a)On the other hand the court has to balance, as against that, the extent to which there may be a real risk that prejudice might be caused to the criminal proceedings”. P

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01/10/2015 17:06

Rates on Commercial Property Killian Morris and Adrian Power Kelly review recent legislation and its impact on practice from the point of view of rate payers, solicitors and other advisers

Section 32 of the Local Government (Reform) Act 2014 – One Year On…

We would anticipate that, in a case where the arrears are significant and satisfactory agreement cannot be reached, there may be merit to challenging this interpretation in the courts

For those stakeholders operating in the commercial property sphere, local authority rates have always been a significant issue. However, for the most part, rates liability issues are typically only examined in detail during property transactions.

Historic Position Historically, the relevant legislation imposed liability for rates arrears (up to two years) on the incoming occupiers of a commercial property under what was known as the ‘liability of subsequent occupiers’.

Following the economic crash, this liability became an impediment to some transactions and meant that, in certain parts of the country, commercial property was unlettable – so significant were the historic rates of liability.

Section 32 In an effort to address this issue, the legislature enacted Section 32 of the Local Government (Reform) Act 2014 (the 2014 Act) which sought to abolish the historic position and instead, imposed obligations on those transferring property and/or owners of property, in situations where the transfer of an interest results in a change in rateable occupier. While the new legislation can apply in different ways to different transactions, compliance with the new obligations in general, is intended to result in (a) the local authority receiving notice of the change in rateable occupier within 14 days of the change occurring and (b) having all of the historic arrears of rates (and not just two years) paid by the party responsible to pay it (i.e. the party transferring the interest). In circumstances where those obligations are complied with by the owner/ transferring party, then the new occupier (the owner) will have no liability for the previous occupier’s rates.

Application in Practise For example, in the case of the sale of the freehold interest or freehold equivalent in an owner-occupied property, the local authority rates must be discharged by the vendor and the vendor must inform the local authority of the change in ownership. If either does not take place, the arrears of rates and a penalty of up to two years unpaid rates can become a charge against the property. Clearly, ensuring that these obligations are complied with is of critical importance to any purchaser of such a property.

Taking another situation, where a tenant is taking a new lease of premises where a previous tenant has built up substantial arrears of rates. Provided that the landlord notifies the local authority of the departure of the previous tenant and the arrival of the new tenants within the relevant 14-day period, then neither the new tenant nor the landlord will have a liability for the previous tenant’s arrears or any penalties under the 2014 Act. The landlord may of course, be liable for any rates applicable for the intervening period between the previous tenant’s departure and the commencement date of the new lease, subject to any applicable vacancy credit, and this would need to be discharged in compliance with Section 32.

In every case, it is the owner of the property who must be primarily concerned with compliance of Section 32, even where the owner is not directly involved in the underlying transaction. Situations will arise where tenants depart or where rateable occupiers change, and the owner may not necessarily consider the implications of Section 32 until it is too late. In such a scenario, a landlord might inadvertently end up becoming liable for penalties of up to two years unpaid rates which also becomes a charge against the property.

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Autumn 2015 dsba.ie Killian Morris is a solicitor at AMOSS Solicitors and he’s a member of the DSBA’s Parchment committee. Adrian Power-Kelly is principal of Power-Kelly and Company, chartered valuation surveyors and rating consultants

Variations throughout the Country and Issues for Clarification As local authority rates are collected by each local authority, various practices have developed throughout the country and at times, it can be difficult to reconcile the various approaches being taken. In most cases, the best advice is to speak with the rate collector to ascertain the likely approach.

From a practical perspective, the following appear to be the main issues which are arising: 1. Liability for receivers/mortgagees in respect of historic rates. It has become accepted practice that the effect of Section 32 is to oblige receivers/ mortgagees to discharge all commercial rates which accrue up to the date of sale, to include rates due from when the mortgagor in question was in possession. There seems to be some disagreement on this point and there’s a view that a receiver should only be liable for the rates accrued since his appointment. Historic revenue case law from the UK contains authority for the proposition that a receiver cannot be liable for the tax liability of the borrower/ mortgagor; as he is merely an agent for the borrower.

Section 32 refers to receivers indirectly (as ‘agents of the owner’ and being the ‘party entitled to receive rent’) but it also states that the amount payable is the amount for which ‘he or she is liable’. It is certainly arguable on this basis that their liability for rates, as agents for the mortgagor, can only commence on the date of their appointment.

At present, the Law Society guidance is that all such arrears (even those relating to the period prior to the receiver’s appointment) should be paid and therefore, in the absence of specific agreement to the contrary with the local authority concerned, a purchaser’s solicitor will inevitably require payment of all arrears on completion. We would anticipate that, in a case where the arrears are significant and satisfactory agreement cannot be reached, there may be merit to challenging this interpretation in the courts.

2. Current year liability on date of sale – Section 32

Conveyancing

We have recently seen one example where a rate collector refused to apply a vacancy credit for the period between the signing of a contract for sale and the closing date, on the basis that it was no longer ‘available to let’ requires the vendor/owner to pay all rates for which he;s liable at the date of sale. The historic legislation provides that the date ‘the rate is struck’ in each year is the liability date for the entire year’s rates.

Therefore, where the date of sale takes place after that date, the liability of the transferring occupier is for the entire year notwithstanding the fact that rates are typically paid either by instalment or in two halfyear moieties. In order to deal with this, an occupier vendor should pay rates for the entire year and recover the balance from the purchaser by contractual apportionment. However, on a practical level, most rate collectors are happy to accept an apportioned payment up to the date of sale pursuant to Section 2(1) of the Poor Law (Amendment) Act 1890. If in doubt, a prudent vendor should always check this in advance.

3. Vacancy credits issued in respect of empty premises are applied differently around the country in accordance with Section 31 of the 2014 Act. Some areas provide a 100% credit and others 50% or less. Further, the entitlement to a vacancy credit is dependent on being able to show that the premises is either for let or is undergoing refurbishment.

Difficulties can arise during a sale/letting process after a transaction has been agreed, but not completed.

We have recently seen one example where a rate collector refused to apply a vacancy credit for the period between the signing of a contract for sale and the closing date, on the basis that it was no longer ‘available to let’.

It is clear that this will continue to be a controversial and evolving area as more and more transactions occur.

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IN-HOUSE COMMERCIAL CONTRACT COUNSEL ASSOCIATE SENIOR ASSOCIATE LEVEL, DUBLIN This US MNC is building a large multi-functional legal team in Dublin South.The successful candidate will ensure all contracting processes and procedures are followed with respect to the negotiation and execution of commercial contracts. Ideal for a Practice Solicitor looking to move in-house or somebody already working in commercial contracts.

BANKING SOLICITOR, AVP- VP LEVEL, DUBLIN Global Investment Bank requires a Banking Solicitor to join their Corporate Services division. The role is ideal for a qualified lawyer with structured finance or corporate structures experience and thorough legal knowledge with a specialisation in financial services. Excellent remuneration and progression prospects on offer.

COMMERCIAL PROPERTY SOLICITOR, JUNIOR ASSOCIATE LEVEL, DUBLIN A Top Tier Law Firm is seeking to recruit a number of commercial Property Solicitors. This Law Firm boasts a wide range of clients including private equity funds, developers, investors and financial institutions. This position is suitable for candidates currently working within a top 10 firm or someone in a smaller practice with extensive property experience looking to make the jump.

To apply for any of the above vacancies or for a strictly confidential discussion, please contact Sean Fitzpatrick on +353 1 5005916 or sean.fitzpatrick@cpl.ie or Tony Glynn on +353 1 500 5918 or tony.glynn@cpl.ie

FUNDS SOLICITOR, ASSOCIATE LEVEL, DUBLIN This international funds team is going through an aggressive growth stage and is looking to expand their funds practice further. The successful appointment will report directly to a Global Partner and have an opportunity to work on domestic and international work. This position will offer excellent remuneration.

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Ar mhaith leat seirbhísí dlí a thairiscint as Gaeilge?

Ard-Dioplóma sa Dlí-Chleachtadh trí Ghaeilge (Óstaí an Rí)na hinstitiúidí ag earcú Is teanga oifigiúil den AE í an Ghaeilge agus bíonn dlítheangeolaithe agus aistritheoirí dlíthiúla le hardleibhéal scileanna Gaeilge.

Tá na poist seo ar fáil i bParlaimint na hEorpa, sa Choimisiún Eorpach, sa Reáchtálfaidh Óstaí an Rí cúrsa Ard-Dioplóma sa Dlí-Chleachtadh trí Chomhairle agus sa Chúirt Bhreithiúnais. Tá tuarastal agus coinníollacha 6 dheireadh seachtaine idir Samhain 2015 agus Márta oibreGhaeilge den scoththar i gceist: €5,000 glan sa mhí do dhlítheangeolaithe.

2016 a chumasóidh cleachtóirí dlí le feidhmiú trí Ghaeilge.

Aistríonn na haistritheoirí reachtaíocht agus cáipéisí oifigiúla eile.

Deimhníonn na dlítheangeolaithe go bhfuil dlíthe atá aistrithe slán ó thaobh Cuimseofar sibhialta dréachtú, reachtach. abhcóideacht, na teanga agus an dlícúrsaí de agus bíonn rólagus acu coiriúla, san idirbheartaíocht Bíonn comhchomhairle na dlítheangeolaitheagus sa Chúirt Bhreithiúnais Tá ag aistriú freisin. idirbheartaíocht. an cúrsa seo ar oscailt Tá sé mar aidhm ag an agus gcúrsad’aturnaetha na rannpháirtithe a ullmhú do Ghaeilge acu. d’abhcóidí a bhfuil líofacht scrúduithe earcaíochta an AE. Reáchtáiltear na ranganna teanga gach Luan agus Céadaoin i rith na bliana acadúla 6pm-9pm. Reáchtailtear ranganna dlí na Cuirtear ainmneacha na gcleachtóirí a n-éiríonn leo ar Chlár agus seiminéar ar earcaíocht san AE thar 3 dheireadh seachtaine.

Gaeilge (Óstaí an Rí) de bhun Acht na nDlí-Chleachtóirí (An Ghaeilge) 2008 atá ar shuíomh idirlín na nÓstaí.

Cuireann an Roinn Ealaíon Oidhreachta agus Gaeltachta tacaíocht ar fáil don chúrsa seo.

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Ar mhaith leat €5,000 isteach i do lámh gach mí?

Ard-Dioplóma sa Dlítheangeolaíocht agus san Aistriúchán Dlíthiúil Bíonn Institiúidí an Aontais Eorpaigh ag earcú dlítheangeolaithe agus aistritheoirí dlíthiúla le hardleibhéal scileanna Gaeilge. Tá na poist seo ar fáil sa Bhruiséil agus i Lucsamburg. Tá tuarastal agus coinníollacha oibre den scoth i gceist: €5,000 glan sa mhí do dhlítheangeolaithe, m.sh.

Aistríonn na haistritheoirí reachtaíocht agus cáipéisí oifigiúla eile.

Deimhníonn na dlítheangeolaithe - a bhfuil céim sa dlí nó cáilíocht ghairmiúil sa dlí acu - go bhfuil na dlíthe slán ó thaobh na teanga agus an dlí de agus tá ról acu san idirbheartaíocht reachtach. Bíonn na dlítheangeolaithe sa Chúirt Bhreithiúnais ag aistriú freisin.

Tá sé mar aidhm ag an gcúrsa na rannpháirtithe a ullmhú do scrúduithe earcaíochta an AE. Reáchtáiltear na ranganna teanga gach Luan agus Céadaoin i rith na bliana acadúla 6pm-9pm. Reáchtáiltear ranganna dlí agus seiminéar ar earcaíocht san AE thar 3 dheireadh seachtaine.

Teastaíonn céim leibhéal 8 ar a laghad agus Gaeilge mhaith labhartha agus scríofa (B2 TEG). Ní foláir d’iarrthóirí an cumas seo a léiriú go sásúil i scrúdú iontrála a reáchtálfar in Óstaí an Rí. Ní ráthaíocht é pas a fháil ar áit a fháil ar an gcúrsa; roinntear na háiteanna ar bhonn fiúntais.

Teastaíonn scileanna maithe ríomhaireachta freisin.

Cuireann an Roinn Ealaíon Oidhreachta agus Gaeltachta tacaíocht ar fáil don chúrsa seo.

Tuilleadh eolais agus foirmeacha iarratais: daithi.maccarthaigh@kingsinns.ie

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087 2368364

Tuilleadh eolais agus foirmeacha iarratais: daithi.maccarthaigh@kingsinns.ie

Irish01/10/2015 Parchment ad 15:56 2.indd 2

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01/10/2015 16:00 01/10/2015 16:55

Autumn 2015 dsba.ie Sean O’Brien is a partner at O’Brien Roynane Solicitors in Tallaght

Information Technology

Social Media for Solicitors After being asked by his colleagues on the Intellectual Property and Technology Committee of the DSBA to write a short piece on his experience with social media in practice, Sean O’Brien recounts his best digital experiences and successes

I

have to say firstly, I do not consider myself to be an expert in social media. However, over the last number of years, I in common with a large number of solicitors’ firms, have begun to use social media and a digital presence by way of a website, as a marketing tool for the practice.

I am a partner in a two-solicitor firm which deals mainly with a standard stock in trade of a suburban solicitor’s practice: namely personal injuries, litigation, conveyancing, family law and probate. In and around 2008 our practice moved from a prominent high street position with lots of passing trade to a purpose-built the Parchment 39

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I look upon our Twitter feed as similar to an old fashioned leaflet drop insofar as each time we post, we reach a local audience and our presence is reinforced with them office at a different location in Tallaght. After we moved, it became clear that we had to adopt new and innovative ways of advertising our existence and it was logical at the time to focus our efforts on a digital presence.

Over the last number of years we have slowly begun to shift our reliance on paper-based advertising to one where now the entirety of our advertising and promotional spend is based around our website and to a lesser extent, our Facebook page and Twitter feed.

I have had a webpage in some form or another for the last 18 or 19 years. However, it was only in recent years that I finally managed to get a website up and running to my satisfaction. Initially our current website was a stand alone website and we did not operate a Facebook page or a Twitter feed at the time. We enlisted the services of a web designer to help us design the current site and it finally went live in or around 2010. I naively thought that business would flow in from the web, and I was sorely mistaken. In fact, it look a while for me to realise the creation of a website is only the beginning of a firm’s digital presence. The main problem now is that having created the website, you now need to ensure that a search on the web will lead the client to our website. Indeed this is now the main focus of our efforts and where the main focus of our marketing on the internet is concerned.

We were very lucky that very soon after we had set up our first website we came across a firm of very dedicated web designers who have also introduced us to the art of search engine optimisation (SEO) as it’s commonly known. In short, it is not enough to have the website or the digital presence, you have to optimise it. I know myself that when I search for a service over the internet I rarely go beyond the first two or three search results and certainly would never go into the second page of results.

While it’s possible by way of Google Adwords (which we also use) to pay to have your web presence significantly boosted, the fact of the matter remains that when looking for personal injuries litigation or general conveyancing business, the cost per ad word can be ruinously expensive, and therefore one needs to use other methods to boost your website’s position in any search.

Over the years we have developed a very good relationship with our web designer and search engine optimisation company which provides us with an exemplary service. Not only do they ensure that the design of our website is kept up to date, but in a very cost efficient way, they also manage to keep our website amongst the top three or four results on a search in our local area, and at the top of the non-paid results. For example, if one looks at a Google search page, you will normally see a little yellow box with the words AD, this signifies a paid ad. Our website appears immediately below the paid advertisements and is the first website when a search is carried out for a solicitor in our local

area. I am advised that this is a cheaper way of search engine optimisation.

Our website is kept in this position mainly by being active. Our web designers in conjunction with ourselves, are constantly posting topical stories on the website, in order to drive traffic to it. If one looks at our website at any given time one will see a number of legally-themed news stories. Further our website also contains links to our Facebook page and our Twitter feed. I am advised that again, it is important that these links are maintained in order to boost the website’s overall positioning.

Facebook and Twitter are the main forms of social media which my office operates. Indeed we have tended to concentrate more on Twitter as a way of connecting with people in our local community. Our Twitter account has close on 900 followers. Each time we post on our website, it is automatically posted on to our Facebook page and Twitter feed. The effect of this of course, is that we’re constantly reaching a small target audience based mainly in our local area. I look upon our Twitter feed as similar to an old fashioned leaflet drop insofar as each time we post, we reach a local audience and our presence is reinforced with them.

I would say to anybody who’s considering a new web page or a revamp of their current website that they ensure that it is friendly to all mobile devices otherwise known as ‘responsive’. The prediction for 2015 is that searches on mobile devices will surpass desktop searches.

There’s no point, in my opinion, in having a website that is not responsive. Indeed, we redesigned our website 18 months ago to make it responsive. From a cost point of view, whereas our initial website cost us around €2,500 about five years ago, the revamp 18 months ago, cost us less than €500. It’s not expensive to have a website.

I said at the beginning of this article that I don’t consider myself to be a specific expert on social media – indeed, my office only operates on two of the many social media platforms available. I have been advised by our search engine optimisation company that LinkedIn is where we really should be from the point of view of promoting our business. This may well be the case and my project for the next 6–12 months is to set ourselves up on LinkedIn and see how things progress.

I feel myself that an online presence is a vital tool for all small practices such as mine, but one should not expect that merely having a website and involving oneself in social media is an end in itself. It quite simply is not.

So, six years after having moved and obliterating our passing trade in the process I can say that the internet is now the second highest provider of business to the office, it being second only to client referrals. It is not the answer to all your prayers when it comes to generating business, but it is a very useful tool.

One final point I must make is that when involving oneself in any form of advertising, one should be aware of the fact that the Law Society is becoming increasingly vigilant when it comes to the content of online advertising by solicitors. In the June 2014 edition of the Gazette, a series of images were advertised by the Society which ‘may’ breach the regulations. I would advise anybody before placing any content online, or indeed otherwise, to at least acquaint themselves with this relevant article. P

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DIPLOMA CENTRE Continuing professional education for the way you learn onsite, online or on the move…

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Also Diploma in Arbitration, Certificate in Charity Law, Trusteeship and Governance, Certificate in Commercial Contracts and Certificate in Company Secretarial Law and Practice.

CONTACT DETAILS e: diplomateam@lawsociety.ie

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4 CPD Points 3 Management & 1 Regulatory

AnnuAL COnFeRenCe 2015 Legal Practice Management Sustaining Profits and Positive Cashflow • How the legal market has changed in terms of profitability, pricing and work areas in the past 12 months • Recruiting, retaining and rewarding in the current employment markets • Partnership progression – what’s expected, earn in or buy in and profit sharing models • Solicitors PII renewal 2015 – what to expect and how to pitch your firm • Cyber liability – case studies – why Irish Law firms need to be covered • The property markets – the activity levels and trends in commercial and residential markets locally • Tax – ensuring the basic allowances and reliefs are claimed – the top 10 tips • Tax planning opportunities within a law firm • VAT for Solicitors – common mistakes • Trends in buying, selling and merging practices • Q&A on banking interactions with the Irish legal sector • Where new business is coming from

Speakers: David Rowe - Founder, Outsource Bank of Ireland Regional Business Manager O’Leary Insurances – Regional PII Director Bernard Doherty – Tax Partner, Grant Thornton Local Property Directors – Colliers, Jordan Auctioneers, Power & Associates

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Autumn 2015 dsba.ie Ciara McMahon is a trainee solicitor with Hayes Solicitors

Employment/Lititgation

Data Discovery and Litigation Ciara McMahon discusses the interaction between Subject Access Requests (SARs) under data protection legislation and discovery in litigation

T

he position as regards subject access requests is unfortunately somewhat unclear, owing to various factors discussed at further length below. The aim of this article is to provide a user-friendly summary of the position for employment lawyers and those working in HR. This summary is particularly relevant where a subject access request is made in circumstances where there’s existing or anticipated litigation.

Introduction – the Subject Access Request One of the fundamental rights for individuals under the European Data Protection directive is the right to access their personal data. This right is significant as it provides a means for individuals to (a) verify the accuracy of any personal data held about them and (b) assess the lawfulness of the processing of that data.

The mechanism by which individuals can exercise these rights is the Subject Access Request (SAR).

The SAR is a process under the Data Protection Acts (the Acts), whereby an individual may access any of their personal data held by third parties on the payment of a small fee, provided their request meets certain procedural requirements. Under a SAR, the requester has the right to be provided with information concerning the following: • Whether a person (an individual or an organisation) holds information about them • A description of such information • The purposes of the holding of this information

• • • •

A copy of the personal data in question Where the information was obtained How it was used Whether it has been disclosed to any third party.

While the SAR may sound relatively straightforward, it can be difficult to comply with in reality. This is exacerbated in many circumstances, by the wide scope of SARs. Over the past number of years, there has been a noted increase in the number of SARs being made under the Acts by individuals seeking documents pertaining to them. This is perhaps increasingly relevant where the significant reliance on email and other forms of electronic communication results in large volumes of data being processed on a daily basis.

Further to this, there has also been a noted increase in the number of complaints made by individuals to the Data Protection Commissioner alleging that organisations have failed in complying with their obligations under the Acts in the context of SARs. In the context of litigation it seems that SARs have also become a common tool employed by litigants in advance of any formal discovery orders. It may be the case that such requests constitute nuisance tactics whereby a litigant may attempt to avail of information earlier than required by discovery disclosure, or simply to put pressure on the other side as SARs must be responded to within a 40-day period. Consequently it is no surprise that answering such SARs can be both the Parchment 43

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time-consuming and risky.

Interestingly, when it comes to the judicial approach to these requests being made in the context of litigation, there is a notable divergence between the approaches of the Irish and English courts.

The difficulty in Ireland is that the area of data protection, and the definition of ‘personal data’ under the Acts, has surprisingly not been the subject of much judicial consideration by the Irish courts

English Context The most high profile UK decision in this regard is the case of Durant v Financial Services Authority [2003] EWCA Civ 1746. In this instance, the UK Court of Appeal found that parties who receive a SAR may be justified in refusing to comply with the request in circumstances where the requester has initiated legal proceedings. The court also assessed the meaning of ‘personal data’ in the context of SARs and held that the mere mention of the data subject in a document does not constitute personal data. The court held that therefore, such documents which merely contain references to named individuals, are not disclosable under a SAR. In the later decision in Elliot v Lloyds TSB Bank [2012] EW Misc 7, the court considered the relevance of the motive behind the data subject’s request. In this regard, the court came to the conclusion that if the actual purpose behind the SAR is to obtain data which might assist the requester in its claim, this could constitute an improper use of this access right. The court noted that where the data subject’s motives are ‘mixed’ however, the position is less clear cut. On the facts of this case however, the court noted Mr Elliot’s mixed purposes for making his SAR, which included determining whether his privacy had been unlawfully infringed. In those circumstances, the court held that the SAR was not an abuse and therefore must be complied with.

Following on from the above decisions, the EU’s data protection advisory committee (the Article 29 working party) issued an opinion on the concept of personal data protected under the 2007 directive. Subsequent to this, the Information Commissioner Office issued its own technical guidance which essentially follows that opinion and advised that Durant should be confined to limited cases only where data is not ‘obviously about’ an individual or clearly ‘linked to’ them.

The most recent UK decision on this matter is that of Efifom Edem v Information Commissioner and Financial Services Authority [2014] EWCA Civ 92.

The Court of Appeal confirmed in this case that its landmark decision earlier in Durant should be confined only to limited cases. On that basis, it appears that the English courts may be less likely to accept a broad application of Durant as a justification for narrowing the scope of disclosure.

Irish Context The difficulty in Ireland is that the area of data protection and the definition of ‘personal data’ under the Acts, has surprisingly not been the subject of much judicial consideration by the Irish courts. This gives rise to an unfortunate degree of uncertainty for data controllers.

With regard to SARs, the leading case is that of Dublin Bus v Data Protection Commissioner [2012] IEHC 339. In contrast to English jurisprudence on the subject, the Irish High Court confirmed in this case

that a data subject does not have to establish a good faith motive for wishing to exercise his statutory right when seeking copies of his personal data. Notably Mr Justice Hedigan further held that the existence of proceedings between a data requester and a data controller does not preclude the data requester from making a SAR, nor does it justify the data controller refusing the request. In his judgment, he sought to distinguish Durant on the following basis: “It seems to me that the English case law relied on by the appellant is not relevant. Where there was a statutory discretion reserved to the court under the UK Data Protection Act 1988 as to whether to make an order directing compliance with a person’s access request. No such discretion exists under the Irish legislation. Furthermore the applicants in the English cases were seeking very large volumes of documentation.”

In terms of exceptions to the right of access, the Data Protection Act 2003 imposes restrictions in the following circumstances: (a) the supply is not possible or would involve disproportionate effort, or (b) the data subject agrees otherwise.

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Autumn 2015 dsba.ie

Employment/Lititgation

In Dublin Bus case the court quite clearly refused to entertain any further possible exception than that contained in the 2003 Act: “It seems to me that in effect the appellant is seeking to carve out a new exception in the Acts, I accept the respondent’s submission that if the drafter of the legislation wished to place such limitations on the right of access to personal data then they would have done so expressly.”

In the recent case of Kinsella v Wallace, Monaghan and Bank of Scotland Plc [2013] IEHC 573, the Irish courts again examined the relationship between SARs and discovery, this time noting that a party cannot claim in response to a request for discovery, that his opponent does not require discovery of certain documents as that party has already obtained copies of these documents by way of a SAR. Therefore, as a matter of Irish law, the existence of litigation is irrelevant to the data controller’s duty to supply the relevant personal data pursuant to a SAR and vice versa.

Conclusion – European Reform The concept that individuals should have a right to access personal data held about them has been a core

value of data protection legislation for some time now.

However, from a data controller’s perspective, the area of SARs is more complex than one would assume.

The concept of personal data itself is far from clear and as such, any analysis is often a subjective exercise.

These complexities are further compounded by the following: 1. The interaction between SARs and the discovery process 2. A lack of judicial authority from the Irish courts 3. The divergent approaches between the English and Irish courts.

The recent decision in the Dublin Bus case suggests a reluctance to follow older UK jurisprudence on this issue as does the most recent English decision in Efifom Eden. With the number of SAR-related complaints on the rise, there’s a need for further clarity to assist data controllers in fulfilling their obligations under the Acts. It is envisaged that the forthcoming reform of European data protection law will change the position for the better. All 28 member states have now agreed to the new regime which will hopefully result in increased uniformity of data protection law across the European Union. P

All 28 member states have now agreed to the new regime which will hopefully result in increased uniformity of data protection law across the European Union the Parchment 45

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Companies Act Crowe Horwath is delighted to announce the publication of Companies Act 2014: An Annotation in association with Roundhall Press. This is a truly unique publication which we believe will be an unrivalled reference tool for years to come. It not only contains the full Act but also a concise commentary on the legislation along with the equivalent provisions in prior legislation.

Companies Act 2014: An Annotation is the successor publication to the Combined Companies Acts, which we first published in 1989 under the name Bastow Charleton and which was the go-to reference for students and practitioners of company law.

The Companies Act 2014 is a behemoth, comprising 25 Parts, running to 1,448 sections, and including 17 Schedules. The Act repeals some 32 pieces of pre-existing primary and secondary legislation. In doing so, it restates and consolidates much of the pre-existing statute law; codifies a number of applicable common law and equitable principles; and introduces a number of innovations.

Commenting on the publication Naoise Cosgrove, Managing Partner Crowe Horwath, said “We are extremely pleased that Brian Conroy B.L. accepted the challenge to write this book. At the time of commissioning the book none of us appreciated the scale of the task that lay ahead. We wish to express our sincere gratitude to Brian and the other contributors Mark Rodgers BL), Aideen Keane BL, and Stephen Walsh BL, L for their tireless work over many years in researching the legislation and tracking it through its many stages until its final enactment.”

Cosgrove also said “We also wish to express our gratitude to the Editorial Panel comprising of Crowe Horwath partners George Kennington and Roseanna O’Hanlon along with Brian Murray SC, Barry O’Neill, , Albert Farrell and Ruairí Cosgrove”.

Companies Act 2014: An Annotation is a wonderful reference tool that will be of relevance for many years to come.

At Crowe Horwath we have an in-depth understanding of the Companies Act 2014 and its implications for clients’ business.

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Left to Right: Roseanna O’Hanlan, Brian Conroy Jr., George Kennington, Grainne Howard

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Autumn 2015 dsba.ie

DSBA News

Mediation Awareness Week Mediation Awareness Week takes place from Monday October 19th to Saturday October 24th 2015. The idea is to raise awareness about the value and importance of mediation in society right across the island

of Ireland. Mediation Awareness Week is the brainchild of Austin Kenny, council member of the Irish Commercial Mediation Association (ICMA).

ICMA and other mediation organisations, associations,

non-profits, private panels, educational institutions, supporters and advocates of mediation in the 32 counties of Ireland are celebrating Mediation Awareness Week by hosting a variety of events which

will be listed on our Mediation Awareness Week calendar. For more information visit www. mediationawarenessweek.ie.

Solicitors’ Soccer League 2015 On September 10th this year’s solicitors’ league came to a close with Arthur Cox taking on A&L Goodbody in the final.

The tournament began in May with 17 teams entering in total, placed into two groups.

Byrne Wallace came first in a particularly competitive group A while Matheson topped group B, before both fell at the quarter final stage to the two eventual finalists.

The final took place on a balmy Thursday evening

at Blackhall Place before a healthy crowd of supporters from both firms and other interested spectators. A&L put in a spirited performance and showed plenty of quality in the final third. Ultimately though, Cox’s finesse and previous experience at the final stages of this competition, showed and it was they who ran out as deserving winners after a 2-0 victory, ensuring that the trophy will remain in Earlsfort Terrace for another year.

Towards a Fairer Society?- A look at how changes in Europe and closer to home will impact upon transparency, and your obligations when dealing with local, national & European institutions.

A definite “not to be missed” seminar has been organised by the DSBA IN-HOUSE LAWYERS’ COMMITTEE to be held on Thursday 15 October 2015, in the Radisson Hotel, Golden Lane, from 2-5pm.

Chaired by our own President of the Law Society of Ireland, the exciting line up of speakers will include: MEP Brian Hayes on the state of the Eurozone and its membership, completion of the EMU and the Five Presidents report, Euro area fiscal rules and implementation of Banking Union; Emer Doyle, Investigator in the Office of the Ombudsman on the additional powers and expanded remit of the Ombudsman following the Ombudsman (Amendment) Act 2012, touching also on recent investigations, some new developments (such as private nursing homes coming within remit in August 2015) and how the Ombudsman’s role may develop in the future; and Domhnall Breathnach, Senior Associate with Arthur Cox, on The Regulation of Lobbying Act, 2015 which came into force on 1st September 2015 and introduces broad new legal obligations for individuals, businesses and organisations that engage with designated public officials.

This seminar will provide attendees 2 hours’ General CPD, and 1 Regulatory hour CPD

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Autumn 2015 dsba.ie Photography: John Glynn

DSBA Annual Conference

The DSBA held a very successful annual conference in Berlin from September 17th to 20th 2015.

The business session, gala dinner at the Reichstag and collegiality throughout the few days deemed this year’s conference an overwhelming success.

Above: DSBA President, Aaron McKenna; Deirdre McKenna; Irish ambassador to Berlin, Michael Collins; President of the Law Society, Kevin O’Higgins Left: James McCourt

Right: Brenda Cullen, David Bergin Far right: Elaine Given, Nicholas McNicholas, Fidelma McManus, Greg Ryan

Left: Dan O’Connor, Jacinta Glynn, Gena O’Connor, Anna Clancy Far left: Joan Doran, Aine Hynes, Susan Martin Right: Carmel Morris, Conor Fahy, Judge Mary Fahy Far right: Carla O’Kelly, Denis Ryan, Mary Scanlon

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Autumn 2015 dsba.ie

DSBA Younger Members News

Post seminar socialising on the roof terrace of William Fry

Networking Seminar a Great Success In July the DSBA Younger Members Committee held a hugely successful seminar Working the Room – How to Network Effectively at which Gavin Duffy engaged a full room with his networking tips.

While perhaps best known for his role as one of the investors on The Dragon’s Den on RTÉ, or as an interviewer on The Apprentice with TV3, Gavin Duffy is a media and management consultant with over 25 years experience. Through his company Mediatraining.ie, established in 1992, he has developed and delivered media and management strategies across the board of SMEs, government departments and agencies, local authorities, multi-nationals, and major utility providers. It’s therefore no surprise that the uptake for this event was so high that it was fully subscribed well in advance of the night.

Gavin taught us how to mingle, how to remember names, how to get to speak to that one person we want to meet and how to politely move on from those with whom conversation is running low.

Gavin explained that networking does not come naturally to anyone but with practise and an understanding of his simple tips, it can become natural. Gavin certainly sent us away from his workshop with much more confidence in our ability to practise and develop this skill.

William Fry very kindly hosted the event at its stunning new offices in Grand Canal Dock and the weather held out for us to put our new networking skills to use on the roof terrace afterwards.

Gavin Duffy presenting

Save the Date WHEN: Thursday October 15th 2015, drinks reception commences at 6.30pm with the quiz starting promptly at 7pm WHERE: Alexander Hotel, Dublin 2 ENTRY FEE: €50 per table (max four members to a team) This event is sponsored by Brightwater Recruitment and is run in conjunction with the Society of Young Solicitors (SYS). This year the chosen charity for the DSBA Younger Members is the Emer Casey Foundation and a great turnout is expected.

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Charitable Fundraising Our committee contributed to a number of charities during the year. The three charities were the Emer Casey Foundation, Pieta House and the Mater Hospital Family Heart Screening Clinic.

Mater Hospital Family Heart Screening Clinic Mary Moorhead, CEO of the Mater Foundation was delighted to receive a cheque from the Dublin Solicitors’ Bar Association in memory of William Claffey, a young solicitor from Matheson law firm who tragically collapsed and died running a half marathon in Dublin’s Phoenix Park in 2013.

A total of €1,100 was raised by the DSBA Younger Members’ Committee which was allocated to the Family Heart Screening Clinic at the Mater Hospital.

The Family Heart Screening Clinic offers families who have experienced a sudden cardiac death, or Sudden Arrhythmic Adult Death Syndrome (SADS) or those who have survived a sudden cardiac arrest a screening service for undiagnosed or inherited heart conditions. The clinic has just screened its 1,000th family with over 6,000 family members availing of this vital service to date.

For further information on SADS and the work done by the Family Heart Screening Clinic visit www.sads.ie.

Emer Casey Foundation The Emer Casey Foundation was established in 2006 by the Casey family following the death of their much loved daughter and sister Emer, at the age of just 28. The Foundation has raised in excess of €800,000 to date with the help of Emer’s family, friends and neighbours from Youghal in Co Cork and also with the help of her employers

Right: Laura Horan, MacGeehin Toale Solicitors; Julie Murray, Mathesons; Marguerite Seymour, William Fry

Marguerite Seymour, William Fry; Mary Moorhead, chief executive, the Mater Foundation; Laura Horan, MacGeehin Toale Solicitors

Matheson Solicitors. The Foundation’s goals are to fund research into ovarian/uterine cancer, to help improve patient care and to raise awareness of the cancers. Emer was a former solicitor at Matheson.

The DSBA Younger Members’ Committee was pleased to be able to donate €1,100 to this very worthy cause.

For more information, visit www.emercaseyfoundation.com.

Pieta House Pieta House the centre for the prevention of self-harm or suicide was opened over

nine years ago in Lucan, Co Dublin by Joan Freeman. In the intervening years we have seen and helped over 18,000 people in suicidal distress or engaging in self-harm. We have opened eight subsequent centres; three in the greater Dublin area – Ballyfermot, Tallaght and Finglas plus five further centres to cater for the rest of the country in Limerick, Cork, Tipperary, Galway and Kerry.

The DSBA Young Members’ Committee was delighted to present a cheque to Pieta House for €1,100.

For further information visit www.pieta.ie.

Left: Brian McEvoy, Pieta House and Marguerite Seymour, William Fry

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Autumn 2015 dsba.ie

DSBA Golf Society

Photography: Michael Finn

The DSBA Golf Society held an outing and competition at the Hermitage Golf Club on July 10th 2015.

A most enjoyable day was had by all.

Above L to R: Niall O’Reilly, Paul Foley, Paul O’Reilly, Shea Cullen Left L to R: Tom Simpson, Declan Duffy, Gavan McAlinden

Right L to R: Peter Boyle, Shane Sweeney, Paraic McKeogh Far right L to R: Tony Sommerville, David Tansey, Hugh O’Neill, Pat Coady

Left L to R: Orlaith McCarthy, Mary McAlinden, Maureen Collins, Colleen O’Neill Far left L to R: Eamonn Shannon, John Spanner O’Malley, Ben McGahon, Michael Knightly Right L to R: Pam O’Neill, Barbara O’Mara, Ann Delaney Far right L to R: John Synnott, Bev Turner, Caroline Bergin, David Synnott

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DSBA Soccer League Final

Photography: Paul Sherwood

Arthur Cox played A&L Goodbody in this year’s final which took place on September 10th 2015.

Arthur Cox emerged victorious in a 2-0 win and the Earlsfort Terrace outfit were deemed this year’s champions.

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Autumn 2015 dsba.ie Photography: Paul Sherwood

DSBA Younger Members’ Social Networking Seminar

The DSBA Younger Members’ Committee held a seminar on July 9th July 2015 entitled Working the Room - How to Network Effectively.

Gavin Duffy of Dragon’s Den fame captivated his audience and imparted helpful tips at the seminar which was kindly hosted at the offices of William Fry.

Above: Laura Horan, Gavin Duffy, Marguerite Seymour Left: Alisia Mulvany, Michael Prior

Right: Rosaleen Walsh, Brian Durcan, Charleen O’Keeffe Far right: Post seminar socialising on the roof terrace of William Fry Solicitors

Left: Gavin Duffy presenting Far left: Niamh Gavin, Kirsten Kingerlee, Nuala Clayton, Mary Greaney Right: Cormac Gilroy, Jonathan Foudy, Finn Kelly Far right: Jessica Cantwell, Damian Kenneally, Catherine O’Callaghan

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Closing Argument Stuart Gilhooly

Stuart Gilhooly is a partner at HJ Ward & Co Solicitors and former president of the DSBA. He has won a number of journalistic awards for his writing

Insurers Make Largest Fraudulent Claim

T

here are certain inevitabilities in Irish life: we’ll always be surprised by how bad the weather is; Michael Lowry will be elected no matter what he does and lawyers are consistently to blame for rising insurance premiums. In fairness it’s been 13 years since we were here but it was bound to happen, as sure as boom follows bust.

Back in 2002 when Dorothea Dowling was at the height of her powers, the insurance crisis was the only show in town.

There had been no housing crash and austerity was a word most people had to look up in a dictionary. Dowling was Mary Harney’s go-to insurance expert and she drove a whole host of reforms including the nascent Personal Injuries Assessment Board.

Launched in 2004 and despite regularly clashing with the legal profession, it became an integral part of our claims process.

The truth then as now, is that claims costs were never the main cause of rising insurance premiums, but that didn’t matter when paper wasn’t refusing ink and an attractive narrative was to blame the lawyers. The Fianna Fail/ PD coalition at the time were persuaded by an explanation that the cost of claims could be reduced by centralising the process in an effective mediation system and neutralising, indeed nullifying, the influence of solicitors.

We refused to lie down and die and our clients decided that they weren’t going to be beaten down by the behemoth insurers. They chose us and we chose to fight but it would be churlish to suggest that the PIAB hasn’t served a purpose. Now renamed the Injuries

Board, they have taken smaller claims and made them their own.

For a long time even the insurance companies were happy, but in their world, money does buy you love and once the profits started to fall, a familiar tune started to play. It started with a low hum about six months ago but over the summer, the chorus began to kick in. The fight is being led by the AA’s Conor Faughnan, a well known media commentator on all matters road traffic, but what’s often missed is that the AA is a large insurance broker whose views hardly fall into the completely objective category. Insurance Ireland has recently issued a report along remarkably similar lines.

Among the claims being made is that the High Court awards have gone through the roof and the Injuries Board is not fulfilling its mandate because claimants and lawyers are seeking higher awards from over-generous judges. Even a cursory examination of the facts shows this to be nonsense. The numbers of High Court cases have dropped by 26% in the last year, and will continue to do so as the jurisdiction increases take effect.

Any uplift in the average award is clearly related to the increase in both the number of birth injury actions taken and the awards made in these tragic cases. The number of claims brought to the Injuries Board this year is up by 7%, a tiny increase brought about by the improvement in employment figures and consequent deterioration in the risk of accidents occurring at work, on the road and in public places. Over 60% of all awards are still accepted at Injuries Board level

The truth then, as it is now, is that claims costs were never the main cause of rising insurance premiums

where the average award remains static. The cost of any litigation brought in the courts has dropped through the floor due to a stringent taxing master and the change of jurisdictions which will inevitably see more claims brought in the Circuit Court. The jurisdiction issue will ultimately bring its own problems in delays and resource issues but that’s an argument well canvassed here.

The latest suggestion that the Setanta case success for the Law Society will result in increased premiums is so risible as to make this columnist chuckle. The insurance compensation fund was paying 65% of the claims anyway, so the only difference is a maximum of 35% of 1,750 claims which is, a drop in the ocean for this insurance market.

The reality of insurance premium rises is more prosaic and doesn’t have the same cachet as the “compo culture is back and legal costs responsible for insurance hikes” headlines. The truth is that the insurers have been underwriting at an unsustainable level for several years now. It was started by Quinn Insurance and when they went under, other companies entered a price war to win that and other business without enough thought to the inevitable consequences of selling insurance in high risk categories at a low price. This trend coupled with under-reserving in certain insurers and poor investment in others has led to a drop in profits and a whinge-fest which shows no sign of abating.

And don’t expect common sense to enter this discussion any time soon. Lawyer bashing is one of the nation’s favourite pastimes so it’s up to us to fight back and land a few punches ourselves. P

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IF LIFE GIVES YOU LEMONS WE’RE HERE TO HELP Consult a Colleague now in total confidence

Call us on 01 284 8484 All calls to the Consult A Colleague helpline are treated in the strictest confidence - there is no need to give a name or number.

A confidential free service from the DSBA.

www.consultacolleague.ie

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