Proposed Family Law Reform

Keith Walsh provides a brief overview on Family Law Justice System Reforms announced by Minister McEntee on the 29th September 2020 and published as Family Court Bill General Scheme (September 22)

Summary A summary of the reforms announced are as follows: Specific commitments include promises as follows: a. Families to be put at centre of new family law justice system in reforms announced; b. Draft of new Family Court Bill approved by

Cabinet Tuesday 29 September, Family Court Bill eneral Scheme (September 22) published on justice.ie; c. Family law will get new specialist divisions within current Court structure i.e. separate Family

Law District, Circuit and High Courts within the current system but with new Family Court procedures with the aim of less adversarial dispute resolution and a new family law rules committee to deal with all family law jurisdictions to ensure consistency of approach; d. Proposal to create new Family Districts and Family

Circuits. These new Circuits and Districts may or may not follow the current Circuit and Districts or may create larger family law circuits; e. Family courts to be overseen by a ‘principal judge’ in District, Circuit and High family courts

President of each Court still in place f. Specialist knowledge and training now essential for family court udges it must be said many family court judges already have specialist knowledge and training g. A R (Alternative ispute Resolution) and more effective court process part of reform h. Access to supports for families in family law disputes promised. No detail on allocation of resources or specifics on the supports i. Plans for consent cases to be dealt with by the

District Court in judicial separation, divorce and cohabitation cases where previously Circuit/High only; j. Greater access to court documents currently restricted by in camera rule which relates to cases before the court; k. Family Justice oversight group chaired by

Department of Justice senior civil servant includes judges, Courts Service, Legal Aid Board, Dept. of Children and outh Affairs. No mention of stakeholders or Law Society or Bar Council. Practical changes for Divorce, Judicial Separation and Civil Partnership and Cohabitation cases: • The General Scheme proposes to change the jurisdiction of the courts in judicial separation, divorce and dissolution of civil partnership, cohabitant proceedings, to enable jurisdiction to be exercised by the District Family Court and Circuit

Family Court. The District Court may be permitted to rule consent Divorce, Judicial Separation and

Cohabitation cases in addition to the Circuit Family

Court. • It appears the High Court is losing its concurrent jurisdiction in judicial separation, divorce and dissolution of civil partnership, cohabitant proceedings which it concurrently holds with the

Circuit Court.

Positive: (i) Reform needed but also resources. (ii) any proposed reforms are very progressive. Negative (i) Immediately obvious issues for court users in relation to dealing with more family law cases in the District Court given the already oversubscribed

District Court. If consent divorce, judicial separation and cohabitation cases are to be added to the District Court jurisdiction then it is likely to be even more oversubscribed. (ii) iven the length and complexity of most family law disputes appearing before the High Court it would make sense for these cases where value of property involved is in excess of €3 million to remain in the

High Court in respect of judicial separation, divorce and dissolution of civil partnership, cohabitant proceedings. Figures from the latest Court Services report indicate that in 2019 only 15 applications for divorce and 23 applications for judicial separation were made in the High Court. (iii)Family ustice versight roup tasked with driving this project of Family Law Reform will be composed entirely of public servants. No N s other stakeholders or members of the Law Society,

Bar Council or Family Lawyers Association. Given

Keith Walsh is a family law solicitor and author of Divorce and Judicial Separation Proceedings in the Circuit Court: A Guide to Order 59 published by Bloomsbury Professional

the importance of stakeholder involvement and transparency in the reform of such an important part of the Courts system it is to be hoped that this Group will be enlarged to include a broader stakeholder representation.

Issues not Raised: • There had been mention of consolidation of the

Family District and Circuit Courts outside Dublin in previous publicity but no specific mention of this in the General Scheme. • No mention of Hammond Lane facility in the

General Scheme or reports and an update is awaited from the Department of Justice. • No mention of specialist County Registrars for the

Family Circuit Courts • Concern about creating a system within a system particularly if an inter jurisdictional rules committee is set up for Family Law which is different from the regular istrict, Circuit, igh

Court rules. ne of the very serious issues faced by practitioners and litigants in the family courts is the lack of certainty of outcome in applications for ancillary relief in the context of judicial separation and divorce. In his report for the Child and Family

Law Committee of the Law Society published in 219, r. eoffrey Shannon recommended that a set of principles for the determination of ancillary reliefs, including all maintenance orders, lump sum payments, settlements, property adjustment orders, and pension adjustment orders be developed in order to provide greater clarity and certainty in the determination of ancillary orders.He went on to state: “These principles, in conjunction with the factors set out in section 20 of the Divorce Act, ought to be referred to in each and every case, albeit not necessarily applied. This would provide much needed clarity and confidence for those seeking a decree of divorce, and also support the judiciary in making decisions.” The search for clarity and consistency in judicial decision making in family law may be provided by a specialist family law division of the judiciary but it is very important to recall that all leading family law judgments in the area of judicial separation, divorce and cohabitation have come from the superior courts and the High Court in particular.

The attempted removal of the High Court from these family cases is not a positive development as the High Court has traditionally led the way in clarifying and illuminating family law particularly in the context of judicial separation and divorce. • The lack of resources traditionally provided for family law and the requirement for additional court buildings, staff and expenditure in order to give effect to the proposed scheme mean that these reforms may be a long time in coming. The

Law Reform Commission’s Report on Family

Courts published in 1996 proposed reforms, many of which never came to pass and some of which appear in the General Scheme e.g. the Law Reform

Commission recommended ‘that only those judges should be selected who, by reason of training, experience and personality, are suitable persons to deal with matters of family law;’ The family

Pictured outside the Hammond lane site last December were a group of family lawyers and NGOs protesting against the failure to build proper family courts in Dublin

law Judge as recommended by the new General Scheme should be ‘by reason of his or her training or experience and temperament, a suitable person to deal with matters of family law’. Plus ca change…

While it is too easy to criticise the General Scheme, it is a welcome start towards reform. It also represents many years of hard work from Mr. Justice Michael White and the Courts Development Committee of the Courts Service, from John c aid of the Legal Aid oard, onagh uckley and many more in the Department of Justice and Courts Service and the judiciary who never refused to give up on family law reform throughout the years of austerity. Politicians and supporters of family law reform such as Alan Shatter, Frances Fitzgerald, Josepha Madigan, Charlie Flanagan and current Minister McEntee have all been involved.

It is now up to the DSBA, Law Society, Bar Council, Family Lawyers Association, FLAC, and all the stakeholders in the family law system of justice to work together to extract the positive elements of the proposed Scheme and to add and improve on it. It is our family law system and we need to ensure that it serves those who matter most first – the families and that it is properly resourced.

No article on family law reform can be completed without highlighting the appalling state of the District Family, Circuit and High Courts servicing Dublin. Dolphin House and Chancery Street are unfit for purpose in normal times not to mention in Covid times. Phoenix House is a poor quality premises but has the advantage of large court rooms currently. The Family High Court has still not found a home since it was moved from its own oor at ras Uí Dhálaigh some years ago. The new Hammond Lane Family Justice Complex is needed now more than ever although there is no sign of any work starting soon.

It is our family law system and we need to ensure that it serves those who matter most first – the families and that it is properly resourced

Valerie Peart is principal of Pearts Solicitors & Town Agents, Dublin

Town Agents A Social-Distancing Solution

In our particular case, as a solicitor firm ourselves, we think like you think, we understand the issues that you face, and each and every day we carry out the same tasks, observe the same regulations, and are governed by compliance matters, just as you are The Town Agent has become the solicitors best friend particular since Covid-19 struck earlier this year. alerie Peart of the highly regarded firm of Pearts Solicitors explains how the role of Town Agent has moved with the times and is needed now more than ever

For as long as I can remember, Pearts Solicitors and Town Agents have been a presence on the North uays in ublin, delivering legal services to the Solicitors of Ireland, mostly to those outside of ublin, but not exclusively so.

In the early days of Town Agency, there was a requirement to have an address within three miles of the Four Courts. No one seems to remember where this requirement came from, or for that matter, where it went, but it is firmly lodged in my mind, and seems to be as good a reason as any for the development of Town Agency services all those years ago.

Technology has certainly changed how we do everything, especially since the heady days of the seventies when, as the most unior member of the firm working for my father, enis R. Peart, (the brains behind the Town Agency business), I spent much of my working day cycling around to offices in ublin on a very basic blue bicycle, delivering the ‘services’ as they were called. ocuments can now be served by ocument xchange and even by email. With the emergence of electronic means to carry out so many of the routine tasks of a solicitor, you could be forgiven for wondering why on earth would you need the services of a Town Agent at all And you would be right to ask As a ublin firm of solicitors, you would have even more reason to ask.

The answer is simple. As your agent, we see ourselves as an extension of your office. In our particular case, as a solicitor firm ourselves, we think like you think, we understand the issues that you face, and each and every day we carry out the same tasks, observe the same regulations, and are governed by compliance matters, ust as you are. efore taking over as principal of the firm in 2002, when my brother Mr. Justice Michael Peart was appointed as the first solicitor in Ireland to become a igh Court udge, I ran my own private practice, like many of you do, while also juggling a busy home life. I therefore know, and understand only too well the added pressures that can come with this.

Following the initial lockdown back in March of this year, firms have had to make necessary changes in how they carry out their work. At Pearts, we have had to adapt too. e are affected by how the Courts Service have changed how they deliver services. We have had to deal with virtual courts and social distancing measures within the actual courts, and at the same time, maintain a safe place for work for all of our staff. ut we have met these challenges. ur staff have willingly embraced the necessary changes and we are confident that we have maintained the high level of service to which our solicitor clients have become accustomed. The reality of the ‘new norm’, which quite frankly is starting to feel very familiar, is that social-distancing solutions need to be implemented. e consider Town Agents to be ust that – a socialdistancing solution. ne staff member can represent multiple solicitor firms in one Court sitting or can attend for urgent matters by appointment in a public Court office with a variety of documentation to lodge. e believe that firms within ublin, who heretofore may not have considered engaging the services of a Town Agent, should think again. Perhaps you are still working from home, or have had to downsie, or redeploy existing staff to different areas of work. What you shouldn’t have to do is risk your safety or spend valuable time travelling on a art or Luas to get to the Four Courts, to spend time waiting to be served, or awaiting your allotted hearing time, when you could be back in your office, spending time with your clients and their concerns. Let us do that for you. We are there anyway. We have the necessary knowledge, competency and personnel to tackle all types of work and we are ready, willing and able to help. ur expertise in all areas of legal practice and procedure is widely recognised. As part of our Town Agency service, advice in all aspects of a solicitors work can be provided by our many staff, who are each expert in their particular field. ery often advice is sought and can be given over the telephone and considerable delays and pitfalls are avoided by consultation with us, in this way. In many instances, precedents can be provided on reuest.

In maintaining an optimistic outlook in the midst of this pandemic, it is evident that one maor upside to all of this societal change is the improvement in a work/life balance. We believe that Town Agency services can assist in helping solicitors achieve a better balance, in knowing that we are just an email or a phone call away to help take care of some of the agonising administrative work that goes into case management.

With that in mind, and as a family run business since 1 , I take pride in knowing that Pearts Solicitors and Town Agents has, and will continue to be a trusted resource which helps other businesses continue to be the best that they can be. As the eatles said I get by with a little help from my friends, and we hope you can think of us as your “friends” during these uncertain and worrisome times. P

Retain Juries in Defamation Cases

Karyn Harty explains why defamation cases still need juries

With the appointment of a new Minister for Justice, Helen McEntee, defamation reform comes into renewed focus as an item featured in the Programme for overnment. A epartment of ustice Review (the Review) of the efamation Act 2 9 (the 2 9 Act), which arose under Section 5 of the 2 9 Act, has been in place since 21 but was given renewed energy in 219, with a Symposium hosted by the Department which I was privileged to attend.

We made submissions to the Review in December 21 and uly 22, highlighting a number of aspects of the 2 9 Act and related procedure that reuire attention. These include the lack of effective mechanisms for early resolution of claims; the need for a workable offer to make amends procedure the urgent need for specific treatment of digital content; the fact that the Press Council which was a mainstay of the 2 9 Act had no role in respect of online content providers; and the need for alternative dispute resolution mechanisms to be given formal recognition.

With continued exponential growth in digital media there has been a marked increase in the volume of claims relating to online content. Since 21 the courts have dealt with a number of appeals relating to damages for defamation, from which it is clear that damages will continue to be assessed at a higher level in Ireland than in other common law jurisdictions because the courts have expressly declined to place any actual or notional cap on damages, although some tempering of awards has occurred. Claims against defendants who are not ‘publishers’ also appear to be on the rise, meaning that the traditional view of defamation litigation as the preserve of newspapers and broadcasters no longer holds, and any reforms need to have regard to broader considerations of freedom of expression, the public interest and reputational protection for those maligned by statements in whatever form.

In seminal decisions in ilchrist v Sunday Newspapers the Court of Appeal has confirmed that there is no ‘real and substantial’ tort threshold under Irish law in respect of defamation, while the Supreme Court has cautioned against any notion of a hierarchy of constitutional rights, preferring an agile approach to the harmonious recognition of rights depending on what the administration of ustice reuires in a given case. As O’Donnell J put it: “The Constitution was intended to function harmoniously, and where there were points of potential conict between the rights and obligations provided for, that should be sought to be resolved without the subordination or nullification of one provisionIt should be remembered that the essence of constitutional rights is that they call for enforcement precisely when inconvenient, contrary to the wishes of the Government, the clamour of the media, the public mood more generally, and even the personal wishes of udges themselves.” This all forms an important backdrop for any legislative changes.

Perhaps the most pressing need arising from these developments is for proper consideration to be given to where to place liability for online content, which has such a crucial role in public debate and moves at a pace which does not lend itself to the provisions of the 2 9 Act. ith moves in the S to reconsider the protections for internet speech there conferred by Section 2 of the Communications ecency Act, and the new security law foisted on the people of Hong Kong which appears to outlaw people even contemplating ‘sedition’, there is a more urgent need than ever before for an informed and careful appraisal of how citizens’ rights can best be protected without stiing public discourse. Tied to this is how

Karyn Harty is a partner at McCann FitzGerald. She specialises in media law. Contributions of Lesley Caplin and Harry Oulton at McCann FitzGerald to this article is acknowledged

to deal with forum shopping, given the increase in claims being litigated here that appear to have no meaningful link to Ireland.

Some practitioners are arguing for uries to be removed from defamation actions on the basis that they inate damages, lead to unnecessary costs and create uncertainty for defendants. Sure, anyone who has been involved in a jury trial knows the highs and lows of trying to convince a jury of the importance of high-brow concepts such as freedom of expression and the public interest. Having had the experience of acting in many jury actions over the years, I am not convinced that abolishing juries will solve these problems, or that it is necessarily going to reset any imbalance between plaintiffs and defendants. Indeed there have been few cases over the years where I would have opted for trial before a judge sitting alone in preference to having the case heard before a jury.

A jury has the advantage of, in this jurisdiction at least, being a relatively random collection of ordinary people who are well able to assess credibility, authenticity and attitude. Juries grasp legal concepts pretty well once explained to them. They are also, let’s face it, often far better attuned to and comfortable with digital media, ‘tabloid’ journalism and online forums than some judges might be.

There is much that could be done to streamline defamation hearings. Much of the legal argument that takes place at trial could be dealt with ahead of the trial, using mechanisms that are already available such as meaning applications, and reuiring greater precision and detail in pleadings. The sterling efforts of the judge in charge of the jury list to achieve this should be acknowledged and he has done so without having available to him any formal case management measures, or any proper resources to facilitate jury cases getting on for hearing in a timely way. There is

no good reason why case management could not be extended to the ury list, provided that sufficient resources are put in place to make it workable.

There is also much that could be done to bring greater certainty to damages, including more overt guidance on the basis for, and scale of, damages awards so that juries go into the jury room well informed as to the options available to them.

So many claims now relate partly or exclusively to online content and, aside from the broader uestion of liability for such content, there is a pressing need for a mechanism to facilitate early take down where content is, in fact, defamatory and actionable. As Twitter has suggested in its submissions to the Review, we could learn from the S procedures which provide an early determination process as to whether online content is likely or capable of being defamatory, to facilitate prompt take down where it should properly occur and avoid unnecessary litigation over online content. And mediation, which is well suited to emotive disputes, should be actively encouraged as part of any reform.

Comment

It is to be hoped that concrete legislative proposals will be moved forward this year which will strike a balance between the challenges presented by the creation and circulation of content in 22 and the entitlement of individuals to vindicate their reputations when they are wrongly maligned. While it may seem counter-intuitive for a media defence specialist to argue for the retention of juries, ultimately I believe their abolition risks giving an unfair disadvantage to media content that does not meet standards of decorum but is nonetheless a crucial part of our society and who we are. A jury has the advantage of, in this jurisdiction at least, being a relatively random collection of ordinary people who are well able to assess credibility, authenticity and attitude

Rob Corbet is a partner and head of the Technology Practice at Arthur Cox. Caoimhe Stafford is an associate in the Technology Practice at Arthur Cox. The authors would like to thank Conor O’Brien for his contribution to this article. This article was rst published by the International Masters of Gaming Law

Game On - New Gaming Laws on the way

Rob Corbet and Caoimhe Stafford consider some of the key changes that will be brought about when the aming and Lotteries (Amendment) Act 219 enters into force on the 1st ecember 22

Almost a year after it was signed into law, the aming and Lotteries (Amendment) Act 219 (the 219 Act) will come into effect on 1 ecember 22. Among other things, the 219 Act will update the significantly outdated prie and stake limits under the current legislation, and introduce a standardised minimum age of 1 for all forms of betting. “Unlawful” Gaming nder the aming and Lotteries Acts 195-21, gaming is defined as playing a game whether of skill or chance or partly of skill and partly of chance for stakes haarded by the players,” while unlawful gaming” includes any kind of gaming: (a) in which by reason of the nature of the game the chances of all players (including the banker) are not eual (b) in which any portion of the stake is retained by the promoter or by the banker (other than as winnings) or (c) by means of a slot machine.

The 219 Act will simplify matters by introducing a cohesive licensing regime for gaming, such that unlawful gaming will simply involve any gaming that is not subect to a gaming permit or a gaming licence.

As the 219 Act does not specifically regulate online gaming, it is expected that operators that are licensed overseas will be able to continue offering online gaming services to Irish customers, subect to those contracts and operations not being subect to Irish law. Gaming Permits Superintendents of An arda Sochna will have a new power to issue permits for on-premises gaming where the maximum stake is 1 and no player can win more than , in a game.

The arda Superintendent will be reuired to consider the character of the applicant (or of the person exercising control and management over the applicant where it is a corporate entity), the number of gaming permits already issued in the area, the suitability of the proposed premises, and the kind of gaming that will be conducted, including whether it will be conducted for a charitable or philanthropic purpose. choing aspects of the definition of unlawful gaming under the current regime, a gaming permit cannot be issued to a person: (a) for any gaming in which by reason of the nature of the game, the chances of all of the players, including the banker are not eual (b) to promote gaming for charitable or philanthropic purposes on the same day or in the same place as gaming being promoted for other purposes or (c) to promote gaming by means of a gaming machine. Gaming Licences For gaming machines, and all other gaming where the maximum stake is 5 and no player can win more than 5 in a game, a gaming licence will be reuired from the Revenue Commissioners (much as it is today). efore obtaining a licence, the applicant amusement hall must first obtain a certificate from the istrict

Court. hile the istrict Court will no longer have the power to attach conditions relating to prie, stake or age limits (perhaps to ensure the harmonious application of the 219 Act), it may attach conditions limiting the hours during which gaming can be carried on, restricting the kinds of gaming, and the extent to which particular kinds of gaming may be carried on. As before, the istrict Court may only grant such a certificate where the local authority has passed a resolution to permit amusement halls and funfairs in their area. Register The Revenue Commissioners will be reuired to create and maintain a register of gaming licences, which will likely be published online in the same manner as the register of licensed bookmakers. Lotteries The 219 Act will further introduce a coherent licensing and permit regime for lotteries, which are currently allowed only in limited circumstances. hether operators will reuire a licence or a permit will depend on the value of the pries. Lottery Permits here a person intends to run a lottery (or several in a week) and the total value of all pries is no more than 5, , the person must apply to their local arda Superintendent for a permit at least days in advance of promoting the lottery. Tickets for lotteries under a permit cannot cost more than 1, and if the lottery

is held for the benefit of a charity, the permit holder cannot keep more than 5% of the total proceeds.

In contrast with gaming permits, the arda Superintendent will not be reuired to consider the kind of lottery, but they must consider the applicants character, the number of lottery permits issued in the locality and the suitability of the premises (if any). A register of all lottery permits that have been granted by each arda Superintendent is reuired to be maintained. Lottery Licences For more significant lotteries (where the total value of all pries in a week is no more than , , or no more than , for a once-per-year lottery), the operator is reuired to obtain a lottery licence. To obtain a licence, the applicant cannot derive any personal profit from the lottery, every ticket (or the relevant premises) must display the value of each prie and the name of the intended beneficiary, and of the total proceeds: a maximum of 5% may be allocated to pries a minimum of 25% must be allocated to charitable or philanthropic purposes and a maximum of 25% may be retained by the licence-holder for promotional expenses.

The conditions attaching to proceeds have proven to be the most controversial change, particularly among the bingo industry. The initial draft of the aming and Lotteries (Amendment) ill 219 had capped the amount that could be allocated to pries at 5%. owever, this was revised due to significant

here a person intends to run a lottery (or several in a week) and the total value of all pries is no more than 5, , the person must apply to their local arda Superintendent for a permit at least days in advance of promoting the lottery

The 219 Act will introduce more severe penalties for offences, which include the promotion of gaming and lotteries that are not subect to a licence or permit

lobbying from bingo operators and the ingo Players Association, which led to protests outside il ireann.

Applications for lottery licences must be made to the istrict Court in which the lottery will be promoted at least days in advance. In deciding whether to grant a licence, the istrict Court will have regard to the applicants character, the number of periodical lotteries operating in the locality, and the lotterys purpose. The istrict Court clerk will be reuired to keep a register of all lottery licences that have been granted. Marketing Promotions The 219 Act will introduce a very welcome change for brands and marketing agencies who run prie draws as part of marketing campaigns. Such promotions will not need a licence or permit, provided that the total value of the pries is 2,5 or less and there is no charge for taking part in the lottery or redeeming the prie (aside from the purchase price of the product). Charitable Lotteries In a welcome display of pragmatism, lotteries that are conducted for charitablephilanthropic purposes will be exempt from the reuirement to obtain a permit licence, provided that the total value of the pries is 1, or less, the price of each ticket is 5 or less, the maximum number of tickets sold is 1,5 , and the promoter does not receive a personal profit and has not conducted such a charitable lottery during the previous three months. Private Lotteries The 219 Act is less favourable for societies and workplaces that enoyed private lotteries, as the exemption for such lotteries will be repealed, meaning that they can only proceed subect to obtaining a permit or licence. That small charitable lotteries can proceed should fulfil the same recreational need provided that operators are happy to take no share of the proceeds. Enforcement The 219 Act will introduce more severe penalties for offences, which include the promotion of gaming and lotteries that are not subect to a licence or permit. A summary conviction will result in a fine of up to 5, , andor imprisonment for up to six months, while a conviction on indictment will result in a fine of up to 5, andor imprisonment for up to two years. Reduced penalties will apply to individuals who obstruct arda in carrying out their responsibilities under the legislation, and to those who make false statements in applications for licencespermits.

Interestingly, some prominent private members clubs have announced their closure in the past year due to the strict stake and prie limits and their uncertain status, having unsuccessfully lobbied to be explicitly excluded from the scope of the 219 Act. Although the inister for ustice intimated that the 219 Act merely preserves the status uo for such clubs, which are not subect to a particular licensing regime,” it is unclear if enforcement activity will align with these statements until specific regulation for casinos is introduced. Future Developments?

The 219 Act has been widely described as an interim reform measure, pending a more meaningful overhaul of gambling legislation. Although the new overnment has indicated in its Programme for overnment 22 that it intends to establish a gambling regulator focused on public safety and wellbeing, covering gambling online and in person and the powers to regulate advertising, gambling websites and apps,” it remains to be seen if they will achieve this in the context of the Covid-19 pandemic. P

Winds of Change

Brendan O’Connell says the Court of Appeal Judgment as delivered by Mr. Justice Noonan in August 2020 in the case of Emma McKeown v Alan Crosby and Mary Vocella 22 I CA 242 is significant in the context of Personal Inury Litigation in this urisdiction

The facts of this case are quite unremarkable. Award of the High Court The Plaintiff, following a road traffic accident, was awarded at undalk igh Court on the 11th ecember 219 the sum of , comprising of 5, in general damages up until that date and 5, into the future, together with agreed special damages in the amount of , , making a total award of , . The efendants in the case appealed the uantum of the award on the basis that it was excessive. The Facts of the Case The road traffic accident giving rise to these proceedings occurred on the 21st arch 21 where it was described the Plaintiffs vehicle had received a significant impact resulting in about , worth of damage to the Plaintiffs vehicle. The airbags in the Plaintiffs vehicle had not activated. Liability was not in issue. The Plaintiff suffered whiplash type inuries from which she recovered within a relatively short period, save and except for lower lumbar symptoms which prevailed over a sustained period up to the date of trial (two years nine months post-accident). Judicial Acknowledgement of Public Conscience Paragraph 21 of the Judgment to my mind represents the most ground-breaking element of this udgment. udge Noonan overtly addresses what he describes as “widespread public discourse, debate and dispute” in relation to the extent of awards made by the Courts in Ireland and he also indicates that members of society bear the cost of a compensation system whether through the payment of insurance premia in the case of private efendants or taxes in the case of public efendants. This is a clear acknowledgement by a senior member of the udiciary that perceived excessive awards can have a direct affect on society in a context of payment of insurance premia for motor, public or employers liability insurance. Book of Quantum Traditionally, the ook of uantum, notwithstanding its review in 21, has to a large extent little bearing on awards handed down by the Court in the context of Personal Inuries. udge Noonan points out that in the present case, the ook of uantum had a role to play where inuries are uite straight forward and where the inury falls more clearly into one or more of the defined Categories. e does acknowledge that the ook of uantum, however, has limitation in complex cases with multiple inuries or cases with inuries that it does not capture at all, for example scarring or psychiatric type inury. udge Noonan in reducing the Plaintiffs award as handed down by the igh Court seems however to rely uite heavily on the ook of uantum suggesting that the Plaintiffs back inury in this instance fell into the minor category, or at best, between the minor or moderate category, considering that the band of a moderate category is between 21,4 and 4, , udge Noonan made an award for general damages of , reducing it from the initial finding for general damages of 5, .

Judge Noonan emphasises the importance of transparency and that a Trial Judge in arriving at an award must have a stated and clear rationale for doing so. oth Plaintiffs and efendants should also be cognisant of udge Noonans words where he feels that it would assist the Courts considerations to hear submissions from both Plaintiff and efendant as to how the ook of uantum should be applied or whether it should be applied at all. Draw of Judge Paragraph 28 of The Court of Appeal Judgment addresses the perceived non-uniform application of the law in the handing down of Personal Inury Awards. udge Noonan acknowledges that it is clear that the non-uniform application or the perceived draw of udge, whether it be generous or otherwise, can give potential for inustice. udge Noonan is of the view that Personal Inury litigation “should not be a lottery” and that Plaintiffs

Brendan O’Connell is a partner in the litigation and dispute resolution department at Ronan Daly Jermyn Solicitors

and efendants should be entitled to reasonable consistency and predictability and it is on that basis again that the Court of Appeal is in this udgment extolling the virtues of the ook of uantum, or its successor in the form of the awaited udicial Guidelines.

Shortcomings of Plaintiff Whilst the Court of Appeal does not criticise the Plaintiff directly, it is clear that passing references to various matters contributed towards the reduction in the Plaintiffs Award in the Court of Appeal.

In the first instance, the Court of Appeal, whilst not saying so in so many words, seems surprised that whilst the Plaintiff attended her P and received pain relieving medication from her P there was no report available to the Court from this medical practitioner.

It is also pointed out by the Court of Appeal that the Plaintiff was referred by her solicitor to r. Aidan alsh, Consultant rthopaedic Surgeon at ur Lady of Lourdes ospital in Navan and the Court of Appeal deduced that the Plaintiff saw r. Walsh for Medicolegal purposes only and in fact Mr. alsh had given the Plaintiff no treatment at all and notwithstanding that fact, it was r. alshs reports that were the only reports available to the Court in relation to the Plaintiffs condition and prognosis into the future.

Take Home Points 1. Given the Ruling of Judge Noonan and various pervious Rulings from the Court of Appeal from the likes of udge Irvine, it would occur to me that the Appellate Court in relation to whiplash type inuries are in many instances reducing awards by a minimum of 5%. 2. Paragraph 21 of the Judgment as outlined above addresses the public concern in relation to perceived excessive awards and there is an acknowledgement now by senior members of the udiciary that this is having a direct affect on society and that going forward, various factors such as fairness and proportionality and the direct affect on society will be taken into consideration. . I feel in this udgment there was also subtle criticism of the Plaintiff in circumstances where she was seen by a Consultant rthopaedic

Surgeon within three weeks, to whom she was referred by her solicitor and the sole purpose of her numerous visits to this Consultant Physician was for medicolegal purposes only. er treating

GP did not provide a Report to the Court. 4. The Court of Appeal references on numerous occasions in this instance the ook of uantum as being an essential yard stick in cases where inuries are reasonably defined in terms of categorisation, severity and duration, and in such instances, the

Court of Appeal clearly favours the hearing of submissions from both Plaintiff and efendant about how the ook of uantum should be applied or whether it should be applied at all in a particular case.

n the basis of what we have seen in this particular udgment, one would deduce that the ook of uantum or the udicial uidelines which are to be

introduced in accordance with the udicial Counsel Act 219, will play a much bigger role in personal inury litigation in this urisdiction going forward which undoubtedly would promote consistency in the level of damages awarded to Plaintiffs.

It occurs to me that this udgment of the Court of Appeal encapsulates very concisely and accurately the anomalies that exist in Personal Inuries Litigation in this urisdiction.

It overtly addresses the public concern in relation to the adverse effect that excessive awards for general damages can have on insurance premia. It goes as far as to consider the potential harm that this is doing to society but then provides a solution and a pathway to more transparent and consistent awards, by way of reference to a ook of uantum or udicial uidelines to be more closely followed by members of the Judiciary into the future.

Levels of awards are now being pressurised downwards, this is without any introduction of reforms, but simply in my view due to public will and discontent which has now clearly filtered into the conscience and awareness of the udiciary as referenced in the present case.

This udgment will be welcomed by efendants and viewed by Plaintiffs with some trepidation. P

Levels of awards are now being pressurised downwards, this is without any introduction of reforms, but simply in my view due to public will and discontent

Simplified Merger Regime

The Competition and Consumer Protection Commission (the CCPC) has published Simplified erger Notification Procedure uidelines (the uidelines) which came into effect on 1 uly 22. ohn arby assesses how the uidelines set out the CCPCs simplified procedure for certain notifiable mergers or acuisitions that clearly do not raise competition concerns in Ireland (the Procedure)

The CCPC considers that the introduction of the Procedure in Ireland “will reduce the time and resources needed to review applicable mergers or acquisitions . This will have a positive impact on businesses, as review periods for mergers or acuisitions which do not raise significant competition concerns will be shorter and the Irish merger control regime “will be less burdensome for notifying parties”. eals may be notified under the Procedure since 1 uly 22.

The uidelines closely follow the approach at uropean nion level, where the uropean Commission has identified certain categories of mergers as being unlikely to raise competition law concerns.

The notification form will be the same as the standard CCPC erger Notification Form (the Form), but the notifying parties will not be reuired to complete certain sections of the Form. Following receipt of a notification, the CCPC will endeavour to make a determination as soon as practically possible following the expiration of the deadline for third party submissions. Third party submissions to the CCPC must be made within ten (1) working days of the publication of the CCPCs notice of a notification, though the CCPC may change this deadline for third party submissions by notice on its website in individual cases, if circumstances so reuire.

Notwithstanding its initial acceptance that a merger or acuisition is suitable for review under the Procedure, the CCPC may at any point revert to its standard procedure for merger notifications (the Standard Procedure). This may occur, for example, if new information comes to light which suggests that the notification does not fall within the scope of the Procedure. The framework for assessing a notified merger or acuisition set out in the CCPCs uidelines for erger Analysis applies regardless of whether a merger or acuisition is notified under the Procedure or the Standard Procedure. Simplified Merger Notification Procedure Criteria The CCPC will, in principle, apply the Procedure in the following circumstances: (a) the undertakings involved in the merger or acuisition are not active or potentially active in the same product and geographic markets, or in any market(s) which is upstream or downstream to a market(s) in which another undertaking involved is active or potentially active (b) two or more of the undertakings involved in the merger or acuisition are active in the same product and geographic markets, but their combined market share is less than 15% (c) one or more undertakings involved in the merger

John Darby is a Consultant at Flynn O’Driscoll Business Lawyers and he is a member of the DSBA Commercial Law Committee

or acuisition are active in any market(s) which is upstream or downstream to a market(s) in which another undertaking involved is active, but the market share of each of the undertakings involved in each market is less than 25% or (d) an undertaking involved, which already has oint control over a company, is to acuire sole control over that company.

In its consultation document prior to publishing the uidelines, the CCPC noted that applying the uropean Commissions simplified procedure criteria to 219 notifications to the CCPC between 21 and 21 indicated that approximately 55% of mergers would ualify if those rules were applied in Ireland. It can be expected therefore that a substantial percentage of Irish deals will ualify for simplified notification under the Procedure. Safeguards and Exclusions

General Safeguards In appropriate cases, the CCPC may revert to the Standard Procedure, at any point by: i. Issuing a reuirement for further information under section 2(2) of the Competition Act 2 2 (as amended) (the Act) reuiring the undertakings involved to submit more detailed information in

relation to the merger or acuisition andor ii. Invoking the provisions of section 1(12) of the

Act, declaring the notification submitted under the Procedure to be invalid and thereby reuiring the undertakings involved to submit a fresh notification using the Standard Procedure.

The CCPC will decide, based on the facts of the specific case, which would be the most appropriate way in which to revert to the Standard Procedure.

To estimate the market shares specified, the undertakings involved will be reuired to identify all potential product and geographical markets which are likely to be impacted by the merger or acuisition. In this regard, undertakings involved are strongly encouraged to engage with the CCPC in pre-notification discussions to identify all potential relevant market(s). In situations where it is difficult to identify the potential relevant market(s) during pre-notification discussions, the CCPC is unlikely to apply the Procedure. Concentrated Markets hile mergers or acuisitions which meet the criteria are unlikely to raise competition concerns, there are situations when the CCPC may decide that such mergers or acuisitions reuire the more detailed approach that the Standard Procedure

ndertakings involved are strongly encouraged to engage with the CCPC in pre-notification discussions to identify all potential relevant market(s)

The CCPC is unlikely to apply the Procedure to mergers or acquisitions where one or more of the undertakings involved have important pipeline products

entails. For example, mergers or acuisitions which take place in markets which are already concentrated may raise competition concerns. arket share thresholds may be less indicative of the intensity of competition in the relevant markets. Conseuently, the CCPC is unlikely to apply the Procedure in such cases. Pipeline Products Similarly, mergers or acuisitions which involve firms that have potentially important pipeline products will reuire detailed analysis. This may be particularly relevant in digital and pharmaceutical sectors. In these markets, new and innovative firms with important pipeline products are often reuired to merge before they have time to establish a significant market position. A full assessment will be particularly important for these mergers or acuisitions. The CCPC is unlikely to apply the Procedure to mergers or acuisitions where one or more of the undertakings involved have important pipeline products. Mavericks averick firms are those who compete more vigorously, in terms of price, uality or innovation, relative to other firms. A merger or acuisition involving a firm that acts as a maverick could imply a disproportionate reduction in competition. Neighbouring Markets here the firms are active in neighbouring markets, the merger might allow the merged entity to leverage its position into a neighbouring market. Mergers that involve a change from joint to sole control For mergers that involve a change from oint to sole control, the parent companies might impose constraints on each other and on the ointly controlled undertaking which was, or was soon to be, in competition with the acuiring shareholder. Procedural Provisions

Pre-merger Notification Discussions Pre-merger notification discussions, though not mandatory, can be beneficial for undertakings involved in clarifying how much information should be included in the Form. The uidelines advise that in order to clarify whether a merger is suitable for notification under the Procedure, parties are “strongly encouraged to engage with the CCPC in pre-notification discussions”. Pre-notification discussions are not currently a prominent feature of the Irish merger control regime, but are very common at the uropean nion level, where notifying parties typically engage in substantial contact with the uropean Commission, including by exchanging drafts of the notification form, before formally notifying a merger. No time limits apply to pre-notification and the legislative review period only begins once the transaction is formally notified. Pre-merger notifications discussions may also lead to a reduction in phase one review time. The CCPC currently facilitates pre-merger notification discussions for all mergers or acuisitions and has said that it“will endeavour to arrange discussions with parties within two working days from receiving contact”. Notification and Publication The merger or acuisition are still to be notified on the Form. owever, parties availing of the Procedure will not be reuired to complete certain sections. Specifically, parties will not have to provide detailed information regarding their competitors, customers and suppliers and therefore the following sections of the Form will not need to be completed: Sections 4.5 to 4.1 – verlapping Products or

Services and other relationships. Section . - Further Information and Supporting ocumentation. here parties avail of the Simplified Procedure on the basis that there is no overlap between their activities, the following sections of the Form will not need to be completed: Sections 4.4 and 4.11 – verlapping Products and

Services and other relationships Sections 5.1 and 5.2 – iews of the ndertakings

Involved

This will remove the need to provide detailed information regarding the industry and products concerned, the parties turnover in the State and the market shares. Determination Process under the Procedure

Following receipt of a Form under the Procedure, the CCPC will decide and inform the undertakings involved, as soon as practically possible following the expiration of the third party submission deadline, whether it is appropriate to apply the Procedure or to revert to the Standard Procedure. owever, the uidelines also state that the CCPC will provide an “initial indication” of whether the Procedure is suitable when publishing the notification on its website within seven days of notification. Publication generally takes place within 1-2 days of the notification.

If successful, the Procedure should reduce review periods for no-issue Phase 1 deals. The CCPC is reuired to clear mergers within working days of notification, unless it extends this period by reuesting information from the merging parties.

Where the CCPC has decided to proceed under the Procedure, it will endeavour to make a determination pursuant to section 21(2) of the Act as soon as practically possible following the expiration of the third party submission deadline.

The determination will contain: (a) a summary of the merger or acuisition (b) a description of the undertakings involved (c) the economic sectors concerned and (d) a statement that the merger or acuisition has been reviewed under the Procedure and will not in the CCPCs opinion lead to a substantial lessening of competition in any markets for goods or services in the State. iven that a determination made following a review pursuant to the Procedure will be shorter in length than a determination made following the Standard Procedure, it is envisaged that there will be less need for redaction reuests from the undertakings.

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Significant Security for Costs Decision

Angela Brennan examines a recent Court of Appeal decision regarding security for costs that provides important guidance on the factors which the Court will take into account when deciding whether to award security for costs

Introduction Defendants in commercial litigation are often concerned that even if they win and are awarded their costs, they will never recover them from an impecunious claimant. In cases where a defendant believes that the case against it is unmeritorious and that the plaintiff would be unable to meet any award of costs made in its favour, it can ask the court to make an order reuiring the plaintiff to give security for its costs. In this way, security for costs can represent a tactical weapon to deploy by a defendant, by which a defendant can bring pressure to bear on a plaintiff.

The recent Court of Appeal decision in proceedings arising out of the collapse of Quinn Insurance Limited provides guidance for parties bringing (or defending) such applications in future and considers the balance to be struck between the constitutional need to ensure access to justice for impecunious corporate plaintiffs with potentially strong claims, and the unfairness of successful defendants finding themselves with a somewhat Pyrrhic victory, unable to recover their own costs of successfully defending the action.

Background and High Court Decision The case of uinn Insurance Limited nder dministration v PricewaterhouseCoopers 22 I CA 19 relates to a claim against the insurers former auditor, PwC, for alleged negligence and breach of contract. The High Court had previously refused PwCs application that uinn provide security for its costs pursuant to section 52 of the Companies Act 214 (the 214 Act) on the basis that special circumstances existed to justify the refusal. In reversing the decision of the High Court, the Court of Appeal held that the balance of justice lay in granting the order for security for costs in favour of the defendant, PwC.

PwCs application was made pursuant to section 52 of the 214 Act which gives a Court discretion to grant a defendant security for costs if it appears that: (i) the defendant has a bona fide defence to the plaintiffs claim and (ii) the plaintiff will be unable to pay the costs if the defendant is successful in defending the action. Neither of these factors were in dispute in these proceedings.

However, even where these points have been established, a plaintiff may seek to resist a security for costs order by showing, on a prima facie basis, that special circumstances exist which justify the court to exercise its discretion to refuse such an application. In general, the list of special circumstances is a nonexhaustive one and includes the following: (i) where the inability to meet the costs has been caused by the wrongdoing sought to be addressed in the litigation; (ii) the defendants delay in bringing the security for costs application and (iii) if the proceedings raise issues of exceptional public importance.

In this case, the High Court focused on two special circumstances which it found warranted a refusal of the order. These were: (i) the fact that uinn had made out a prima facie case that its inability to discharge costs owed from the alleged wrongdoing of PwC and (ii) that the proceedings raised issues of general public interest and exceptional public importance justifying the refusal of the application.

Impecuniosity Caused by Alleged Wrongdoing of PwC The Court of Appeal focused on whether there was a causal connection between the actionable wrongdoing

Angela Brennan is a senior associate in Matheson’s Commercial Litigation and Dispute Resolution Department. She is a member of the Commercial Committee of the DSBA

and a practical consequence or consequences for the plaintiff. aker stated that the causal connection between the actionable wrongdoing and a plaintiffs impecuniosity reuires a plaintiff to establish, on a prima facie basis, a connection between specific losses claimed and the likely inability to meet the costs of a successful defendant. In aker s view, uinn had established, on a prima facie basis, that had PwC identified the likely impact of the combined eect of the uarantees, the understatement of the technical provisions and the gifts, uinn could have been in a very dierent financial position.” aker . held that the trial udge came to the correct conclusion that uinn had made out a prima facie case that it might have avoided the compounding of its diculties had it known of the risks inherent in some of the commercial choices it made. n that analysis, uinn had discharged the burden of showing, on a prima facie basis, that the losses it says are attributable to the alleged negligence and breach of duty could prima facie have led it to avoid the financial catastrophe that befell it.” Accordingly, the Court of Appeal held that Quinn had arguably met the test that special circumstances exist.

Balance of Justice between the Parties However, the Court of Appeal held that the matter did not end there. espite the finding of special circumstances, the Court held that it needed to find the balance of justice between the parties. The Court held that, even where special circumstances exist, that does not mean that security will inevitably be refused. In reaching the decision to grant the order for security for costs, the Court placed reliance on the fact that the sum of million to be borne by the individual PwC partners was intrinsically unfair”. hile uinn had the benefit of limited liability, PwC did not. The individual partners would be liable for

these enormous costs.” aker also relied on the fact that the granting of security was unlikely to stie the present claim as uinn had financial backing for its own costs and therefore, the litigation was likely to continue even if security was to be provided.

Exceptional Public Importance The second special circumstance relied upon by the plaintiff was that the case raised issues of exceptional public importance. The Court of Appeal reversed the igh Courts findings that security should not be granted on this basis. The Court held that the public interest had to be exceptional and the plaintiff bore a heavy burden to establish this because the refusal to make an order would deprive a defendant of an order that it would otherwise be entitled to. The Court found that the interests pursued in this litigation were wholly commercial and the fact that the taxpayer or the State coffers may get the benefit of the litigation was not, in itself, a matter that made the litigation one of exceptional public interest.

Conclusion

The amount and mode of security has gone back to the High Court for determination and therefore, despite the award of security for costs, the litigation continues.

This decision provides useful guidance as to the evidence required to resist an application for security for costs. It also makes clear, even where the plaintiff can establish that special circumstances exist, that does not mean that security will inevitably be refused as the Court will seek to find the balance of ustice between the parties. In finding this balance, the Court is likely to take into account whether such an order would put an end to the litigation. ven where the plaintiff can establish that special circumstances exist, that does not mean that security will inevitably be refused as the Court will seek to find the balance of justice between the parties

Commercial Landlords take heed

Ireland reopened for business in Summer 22, after months of being mothballed by Covid-19 restrictions. Neil unne and udith Cryan offer a word of caution for commercial landlords

Conditions remain challenging for many businesses, with reduced capacity arising from social distancing and hygiene reuirements and the potential for further disruption due to the intermittent escalation of local or national restrictions. Tenants of commercial premises may now seek to renegotiate their leases in a bid to reduce costs and share risk with their landlords.

Landlords may be reluctant to share the pain but, when considering requests to regear leases, landlords should be cognisant of the restructuring opportunities available to tenants which could result in a very unsatisfactory long term outcome for them. espite the unprecedented economic crisis resulting from the Covid-19 restrictions, there was an effective pause on insolvencies and restructuring of businesses during lockdown. overnment supports, payment breaks from lenders, moratoriums on enforcement, commercial rates waivers, warehousing of tax liabilities and forbearance from landlords provided breathing space for businesses. This is likely to change in the coming months.

Tenants may seek to have rent reduced or restructured to a turnover model, with rent suspension to apply if they are ordered to close again due to a second wave of Covid-19. Landlords will review their leases to see what benefits they can obtain in exchange for such concessions. If agreement cannot be reached on regearing lease obligations, the alternative for some tenants may be insolvency or restructuring. Examinership A company or its directors can apply to the Court to have an examiner appointed. The examiner will examine the affairs of the company and propose a scheme of arrangement designed to ensure survival of the company and the whole or part of its business as a going concern. nce an examiner is appointed, the company has protection from its creditors, who cannot take legal action against the company or petition to have it wound up. If there are arrears of rent or service charge, the liability may be written down significantly in the scheme of arrangement.

As part of the examinership process, the company can seek to repudiate a lease of property and set it aside to effectively save profitable parts of the business and save obs. xaminership is often used as a tool for multi-tenanted retailers to effect a restructuring of

Neil Dunne is a partner in the Real Estate Group at ByrneWallace Judith Cryan is a professional support lawyer at ByrneWallace

their leasehold obligations, enabling them to o oad unprofitable premises. Liquidation Liuidators have a similar right to disclaim onerous contracts, which could include setting aside an onerous lease. A very simple example would be a lease with above market rent and upwards only rent review. Typically, if a liuidator has no use for a property, he will seek to negotiate a surrender of the lease. If the landlord will not accept a surrender, the liuidator can go to Court seeking leave to disclaim the lease at any time within the first 12 months of the liuidation.

Conversely, the landlord may wish to repossess the premises due to the tenants liuidation. hile the lease will often entitle the landlord to forfeit the lease on the appointment of a liuidator, the landlord may not act on this right of forfeiture for a period of 12 months, provided the liuidator complies with the terms of the lease, such as payment of the rent. The landlord has to wait for the expiry of the liuidators year before acting to repossess the premises on the basis that the tenant has suffered an insolvency event.

Receivership A receiver does not have the right to disclaim or repudiate a lease. The landlord, on the other hand, can generally forfeit a lease on the appointment of a receiver (subect to the usual reliefs against forfeiture). This does not affect the ability of the landlord to pursue a guarantor or have recourse to a rental deposit.

Both a receiver and a liquidator will be liable for rent and service charge due under the lease only to the extent that they use the leasehold property for the purpose of the receivership liuidation. Any rent arrears which accrued prior to the appointment of the receiver or liquidator will be an unsecured debt and may be written down or rank behind the secured debt claim. Proceed with Caution

The economic climate remains uncertain, as all forecasts come with a second wave caveat. usinesses may take some time to return to profit and there is a risk of rental voids in a stagnant market. oth landlords and tenants should proceed with caution, obtaining strategic advice on lease regearing, insolvency processes and restructuring options before acting.

District Court Debt Collection

Susan Martin sets out the steps involved in testing and enforcing a debt in the District Court

Taking instructions In taking the instructions, it is important to take a note of all the information surrounding how the debt arose in the first instance. Initially, focus on your own client – are they an individual or corporation

If your client is a company, then it is worthwhile checking their correct legal name and designation in the CR (Companies Registration ffice). ow did the debt arise Is your client compliant with Section 4 of the Consumer Credit Act 1995 as the money provided under a contract or supply of goods Is there a retention clause in the contract ou should obtain a copy of your clients constitutional documents and the contract itself.

As regards the debtor, what information does the client have about them Is the debtor a corporation or individual here do they live or where is their registered office Again, it is worth checking the CR for precise details on the identity of the debtor. If there are goods involved, has the debtor retained the goods as the debt subect to a guarantee

At this point, you should recommend to your client the possibility of mediation and provide them with the appropriate information in accordance with Section 14 of the ediation Act 21. Write the Demand Letter The next step, assuming you have properly identified the amount owed, the creditor and the debtor, is to issue a letter of demand. ou should check with your client whether such a demand has previously been made and if not, then arrange to issue a demand letter. It is worth taking some time to compose this letter – it should give the debtor all the information that they would reuire in order to identify the debt and set out what arrangements could be made in order to pay it. hile strictly speaking not essential, I think it worthwhile to ask the debtor to indicate early on whether there is any issue around the debt or their ability to pay. arly identification of such issues can prevent expensive errors later. ou should ensure that the demand letter does not either ask for or imply that there is a cost to the debtor for the issue of such a letter. any times, on receipt of a letter of demand, the debtor will engage and hopefully avoid the necessity to issue proceedings. Choose the Jurisdiction The next step, assuming you have had no response or a negative response from the demand letter, is to work out the urisdiction of the court where you will issue proceedings. iven that this article is about debt in the District Court, we will take it that the debt is less than 15, . The next step is to check in which istrict the claim should be lodged. sually, the Claim is issued in the district where the contract was made. Draft the Claim Notice Like the letter of demand, it is worth taking some trouble over the Claim Notice so that it is really clear who is seeking what debt to be paid and why. The indorsement of claim should fully particularise the debt due and set it out in some detail. For example, if the debt owed was, say, in respect of service charges owed to a management company by an apartment owner, the Claim Notice would set out details of the management company, details of the debtor, the address of the property and how much service charges were owed for each year and over what period of time. Lodging the Claim Notice As mentioned above, it is necessary for you to provide your client with the appropriate information regarding mediation. At this point you should draft

Susan Martin is principal of Martin Solicitors. She is a Council Member of the DSBA

the Statutory eclaration confirming that such advice has been provided. nce the Claim Notice has been issued, using the record number provided, you should then arrange to lodge the Statutory eclaration re ediation. Serving the Claim Notice Once the Claim Notice is issued it should be served as soon as ever possible, but at the latest before 12 months has expired since it has issued. It should be served in good time to ensure that any issues which arise relating to service can be dealt with. sually the Claim Notice is served by registered post. 11 days after the service of registered post, you should then arrange for the person who posted the Claim Notice to complete a eclaration of Service. Note an Affidavit of Service is also acceptable but this will attract stamp duty whereas a eclaration of Service does not. Nowadays it is possible to obtain details of the tracking of registered post from An Post – that is, they will give a printout showing the date time and sometimes the identity of the person who signed for the envelope. It is good practice to print this and place it on the file. 29 days after service, as an abundance of caution and for best practice, you should send a warning letter, extending the time for entry of the Appearance efence by 14 days and warning that udgment will be obtained in the absence of hearing from the Respondent. This should be sent by certified (ordinary) post. Preparing the Judgment set If you receive no response from the debtor after 15 days (see step above) and you can prove service of the Claim Notice, the next step is to prepare the Judgment set. The Courts website contains a useful information

on making an application for udgment in the office.

The first document reuired will be an Affidavit of ebt. efore drafting the Affidavit, it is necessary for you to check in with the creditor to ensure that no payments have been made on account or whether some other adustment has been made to the file – e.g. a credit note has been provided to the debtor by the creditor or goods have been returned by the debtor to the creditor etc.

The Affidavit of ebt, to be sworn by the creditor (or in the case of a company, the director of the creditor) outlines to the Court the service on the Respondent of the Claim Notice and the amount now actually due (taking into account anything to the credit of the Respondent). nce the Affidavit of ebt has come back, sworn from the Creditor, the next step is to prepare to lodge and then lodge the udgment set. ne should take care to progress the matter as soon as possible after the Affidavit of ebt has come back. This is because the application cannot be processed if the Affidavit of ebt is more than one month old.

The following are to be included in the udgment set: • Original Claim Notice • Declaration of Service arning letter Certificate of Postage Statutory eclaration re ediation Certificate of No Appearance efence note it is possible to endorse this certificate on the back of the

Affidavit of ebt or it can be a separate document Affidavit of ebt • Judgment

After the application has been processed, if it is accepted then a Judgment will be obtained at which point the creditor can consider what steps are reuired to enforce the udgment.

One should take care to progress the matter as soon as possible after the Affidavit of Debt has come back

Julie Galbraith is a partner in Employment Law Team at Eversheds Sutherland

WRC can hold Remote Hearings

inister for nterprise, Trade and mployment, Leo aradkar T last month signed an order (the rder) authorising the orkplace Relations Commission ( RC) to conduct its hearings remotely. ulie albraith warns that whilst there may be some advantages, there may also be difficulties from a practical and logistical perspective

The rder appoints the RC as a designated body under the Civil Law and Criminal Law ( iscellaneous Provisions) Act 22 (the 22 Act), an act that was introduced to address the challenges faced by the court system and legal system as a result of the ongoing Covid-19 pandemic. The 22 Act makes provision for remote hearings, the use of electronic means in civil proceedings and the giving of evidence using video link, among other matters.

Section 1 of the 22 Act grants the authority for hearings before a designated body to take place remotely. It provides that legislation which refers to the holding of hearings by a designated body will be modified to allow for the holding of those hearings remotely.

Remote Hearings prior to the Order Like most organisations, the RC was locked down for three and a half months earlier this year due to Covid-19 restrictions. This caused a significant backlog in the hearing of complaints which it is now trying to address.

In April 22, the RC carried out a broad consultation about the feasibility of remote hearings and other measures to deal with RC complaints during Covid-19. In response to the consultation, the RC conducted trial hearings in ay and began to facilitate remote hearings in uly.

The RC had been selecting more straightforward complaints for remote hearings, such as complaints relating to working time, payment of wages and trade disputes. Parties to complaints selected for remote hearing were not obliged to proceed with the hearing virtually and could opt for a face-to-face hearing instead.

This presented issues for the RC as the vast maority of parties to selected complaints were reluctant to participate in remote hearings. According to the

RC, of the complaints selected for remote hearing, only 1% of parties consented to the remote hearing. Compulsory Remote Hearings Pursuant to the rder, the RC will no longer need consent from parties to proceed with a remote hearing. This is effective from 24 September 22.

The RC has confirmed it will cease seeking consent from parties and it will gradually increase the numbers and types of cases to be dealt with via remote hearing.

The power to conduct hearings remotely is not absolute. Section 1(2) of the 22 Act provides an exception and states that the authority to conduct remote hearings will not apply if the designated body, of its own volition or following receipt of representations by a party concerned, is of the opinion that it would be unfair to a concerned party or contrary to the interests of ustice. Implications for Employers

The introduction of compulsory remote hearings presents opportunities for parties to RC complaints: irtual hearings will assist to reduce the backlog of complaints and bring about a speedier resolution of disputes. It will enable overseas witnesses to attend hearings where previously they may have been unable to do so due to travel restrictions. It is also unlikely that there will be the same restrictions on the number of individuals permitted to attend the hearing as are in place at present.

There may, however, be difficulties from a practical and logistical perspective: The absence of a face-to-face meeting can reduce the opportunities for an on-the-day settlement. • Parties may encounter issues communicating with their representatives during the hearing. hile communication will be possible via mobile devices, it may be necessary to request periodical breaks in order to effectively take instructions. itnesses may be coached, either by individuals off-camera or by reading a script. The effectiveness of examination and crossexamination of witnesses may be impacted as it may be more difficult to evaluate testimony on screen. There are also privacy and data protection concerns. here a hearing is conducted remotely, potentially in multiple locations, the privacy of the hearing is more difficult to police.

The RC is mindful of such difficulties and, in its consultation paper on remote hearings, has identified a need to establish procedures to ensure the conduct of remote hearings complies with its obligations to adhere to fair procedures and natural ustice. mployers will need to familiarise themselves with any such procedures if called to a remote hearing and additional preparations will be reuired to adust to the new form of hearing.

Niall Michel is a litigation partner in the Public and Administrative law team at Mason Hayes & Curran. Kate Moloney is a trainee solicitor at Mason Hayes & Curran

High Court Strike-Off

Niall ichel and ate oloney review r. ustice Simmons recent igh Court udgment Law Society v- Daniel Coleman

In the Law Society of Ireland v Daniel Coleman, 22 I C 1, the Court provided guidance on the respective scope of: Solicitors appeals to the Court against findings of misconduct by the Solicitors isciplinary Tribunal (S T), and Solicitors responses to applications by the Law

Society for orders imposing serious sanctions, including strike-offs

In a udgment likely to apply to all legal practitioners in the future, it confirmed that it can fully re-hear the matter if a solicitor actively appeals, but only review the matter in a much more limited way if he or she only responds to the ensuing strike-off application. Background ased on S T misconduct findings, the Law Society brought an application to strike r Colemans name off the Roll of Solicitors. r Coleman did not appeal the S Ts findings, but responded to the Law Societys separate strike-off application. An issue was raised as to whether, and to what extent, he could challenge the merits of the misconduct findings in that context. Role of the High Court hen the S T makes a finding of misconduct and recommends a serious sanction, its report must be brought before the Court by the Law Society under the Solicitors (Amendment) Act 19 (the 19 Act) and an order providing for the serious sanction must be sought from the Court (see In re Solicitors Act 1954 19 IR 29). The Courts urisdiction on the application is set out in section of the 19 Act. owever, the matter may also come before the Court by way of a statutory appeal by the solicitor, under section (1) of the 19 Act.

Therefore, in practice, where a solicitor exercises the statutory right of appeal, there will be two parallel motions before the Court. The Rules of the Superior Courts provide that, in those circumstances, the Court will hear the appeal first (see also section 5(1) of the Legal Services Regulation Act 215, which makes similar provision for legal practitioners into the future.) It will deal with the Law Societys application after the appeal is decided, having regard to the outcome of the appeal.

In Coleman, the Court discussed its role in the context of both.

1. Statutory Appeal by Solicitor – section 7(13)

hen the S T makes a finding of misconduct against a solicitor, that solicitor has a statutory right of appeal to the Court against that finding.

The appeal entitles a respondent solicitor to a full rehearing of the matter before the Court.

2. Law Society application to Court to impose sanction – section 8

When the Court hears an application to impose a sanction, its role is much more limited.

For findings of misconduct to be set aside in the context of a section review, either the Court itself must independently form the view, or the respondent solicitor must demonstrate, that the findings do not have a “sustainable basis”. This falls short of a full appeal [but] allows for any injustice to be brought to the court’s attention even in the absence of an appeal”.

Thus, the threshold test is akin to that in judicial review, and not whether the Court might itself have reached a different conclusion on the merits.

If a solicitor seeks to challenge misconduct findings as not having a “sustainable basis”, it must be shown that: n the merits, no tribunal, acting reasonably and applying the correct legal principles, could have reached the finding concerned on the basis of the materials before it, or The proceedings were procedurally unfair or there was an error of law (with the unfairness or error having been material, such that it was capable of aecting the ultimate outcome) nlike a statutory appeal, a section review will normally be carried out by reference solely to the materials which were before the S T. This is one of the essential differences between a review and a full appeal by rehearing. It is only in exceptional circumstances that the Court will allow further evidence, and it will only go to the narrow issue of the sustainability of the findings.

Conclusion

The Courts decision in Coleman serves as a reminder that for a full rehearing on the merits, a respondent solicitor should exercise his or her statutory right of appeal. therwise, his or her ability to uestion misconduct findings will be limited to submitting that they do not have a “sustainable basis”, in response to an application to the Court to impose the sanction recommended in light of the misconduct found. This is a high threshold. oing forward, this also seems to be the case under the euivalent provisions of the Legal Services Regulation Act 215, which applies to all legal practitioners and not just to solicitors.

Therefore, while the Court can hear from legal practitioners in relation to its review of recommendations on sanction, this will predominantly be in relation to the sanction itself, and there is only a very limited urisdiction to entertain submissions relating to the sustainability of the underlying misconduct findings.

Therefore, legal practitioners should be mindful of the options following a disciplinary process, and the conseuences of the choices they make regarding how they will respond. P

Wills and Marriage

Karl Dowling BL and Susan Martin consider a recent High Court judgment dealing with wills made in contemplation of marriage

Section 85 of the Succession Act 1965 provides that a will “shall be revoked by the subsequent marriage of the testator, except a will made in contemplation of that marriage, whether so expressed in that will or not.”

Of course, since the coming into force of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 21 (s.9), a subseuent civil partnership will have the same effect.

There has been much udicial interpretation of s.5 and the words ‘contemplation of marriage’ with the most recent being the decision of r. ustice Allen in the Estate of John McPartlan Deceased 22 I C 44, delivered on the 11th September 22.

The facts were that the Deceased made his Last ill and Testament on the 1th une 219 and subseuently, on the th August of the same year married his girlfriend with whom he had been in a long relationship. An application was brought before the igh Court Non-Contentious Probate List by the Deceased’s executor to prove the will, with the respondent being the eceaseds wife. vidence was put before the Court (on affidavit) by both parties, which sought to assert the intention of the Deceased and is summarised as follow: • Written instructions given to the Deceased’s solicitor were that his primary aim was to provide for his fiance. • The Deceased was enthusiastic to set a date for the marriage. • He had taken tax advice, which stated that [i]f you only take one piece of financial advice from me, it should be to marry your fiance Carol and to do so soon.” The eceased bought himself a wedding ring. • He wrote to his solicitor in the following terms:

Carol knows that we will have to rewrite our will after our intended marriage…”

With the support of his doctors, a senior social worker in Beaumont Hospital, and the Registrar of Marriages, the Deceased obtained an Order of the Circuit Court on the th August 219, dispensing with the notice reuirements, and the marriage took place the following day. r. ustice Allen carried out an extensive review of previous authorities, both Irish and foreign decisions and in particular referred to the decision of Neill . in e ’rien deceased 211 4 I.R. , wherein that court took the view that it is sufficient if the evidence establishes that at the time the will was made, the testator actually had or must have had in contemplation a marriage to a particular person. At para , Neill . said:

“It is noteworthy that the language used in the section does not mention the word intention’ at all, let alone any specific intention. The section adopts a much broader concept of

‘contemplation’, which persuades me that the legislative intent was that a testator would merely bear in mind or have regard to a particular forthcoming marriage. In this context, of course, it must not be forgotten than the

Succession Act, 1965 introduced a number of important safeguards for spouses, specifically s. , which gives a spouse a legal right to one half of the estate if there are no children, and one third if there are children. This statutory right, to a very large extent, replaces and achieves the policy objective underpinning the revocation of a will by a subsequent marriage, as enacted by s. 18 of the Wills Act, 1837, namely, to protect the position of dependent spouses in the event of the death of the other spouse having made a will prior to the marriage which fails to make adequate provision for the dependent spouse.”

In admitting the will to proof, r. ustice Allen took the view that:

“Since the exception which is made is for a will made in contemplation of a marriage that later takes place, the

Karl Dowling BL is a practising barrister and co-author of Practical Probate (Thomson Reuters 2020) with Susan Martin who is the principal of Martin Solicitors. She is a Council Member of the DSBA

marriage contemplated can only be that which has subsequently taken place, and not a marriage such as that contemplated by Miss Jane Austen in the opening line of Pride and Prejudice…The particular marriage must be marriage to a particular person and although the evidence is that the deceased in this case did there is no requirement that the contemplation should extend to marriage on a particular date, or within a particular time.”

Furthermore, the court most helpfully formulated ten principles to consider when reviewing a will after which the Testator married, as follows: 1. The position of wills made in contemplation of marriage being an exception, the rule is that a will is revoked by a subseuent marriage. It follows that the person relying on the exception carries the onus of proof. 2. That onus is to show that the will was made in contemplation of a particular marriage, which is the subseuent marriage in contemplation of which the will was made. . It is sufficient to show that the testator had, or must have had, in contemplation marriage to a particular person. That reuirement is that the testator should have borne in mind or have had regard to a particular marriage. 4. There is no reuirement that the contemplated marriage should have been the motivating factor in the making of the will. 5. There is no reuirement that the testators contemplation of the marriage should be expressed in the will. . The reuirement that the will should have been made in contemplation of “a particular marriage” means a marriage to a particular person. hile wedding arrangements may provide evidence of the contemplation of marriage, there is no

reuirement that a date should have been fixed, or any arrangements made, or that notice should have been given. The relevant contemplation is the contemplation of a marriage, not of a wedding. . The survival of the will is a conseuence of the application of section 5. There is no reuirement that the testator should have intended that the will should remain valid notwithstanding the contemplated marriage. y the same token, any belief on the part of the testator that the will would be revoked by the marriage is not inconsistent with its having been made in contemplation of marriage. . There is no reuirement in the section that anyone other than the testator should have contemplated the marriage. 9. hile it will readily be concluded that a testator who has a short time before making his will given notice of his intention to marry had that marriage in contemplation, that is not definitive. 1. An engagement to be married is an agreement to marry. It is a matter of fact whether a will made by an engaged person is made in contemplation of marriage.

In practical terms, this decision highlights the importance of properly advising a client as to the effect of a subseuent marriage (or civil partnership) on an existing will and a failure to do so on the part of a practitioner could very well result in an action in negligence. hen making a will for a person who is engaged it might well be prudent to include a clause such as the following:

This ill is made in contemplation of my forthcoming marriage to . This decision highlights the importance of properly advising a client as to the effect of a subseuent marriage (or civil partnership) on an existing will and a failure to do so on the part of a practitioner could very well result in an action in negligence

Therese Chambers is an associate in the Employment & Benets Department at William Fry. Ruth Fahy is a trainee solicitor at William Fry

‘Moonlighting’ on the Job

Therese Chambers and Ruth Fahy outline how the High Court recently addressed the issues of whether dismissal was proportionate in a case involving ‘moonlighting’

In the High Court case of Transdev Ireland Limited v- Michael Caplis (22) I C 4 , Ms. Justice Humphreys upheld a Labour Court decision ordering the re-engagement of a Luas driver, who had been dismissed for ‘moonlighting’ as a taxi driver.

The Court’s decision calls into question the ability of an employer to rely on a “zero tolerance policy” regarding occasional additional work without having regard to the reasonableness of the sanction in all the circumstances

What is ‘Moonlighting’? The term “moonlighting” is used to describe a situation where an employee undertakes additional work outside hisher primary source of employment, effectively double obbing. hilst there is no specific legislation prohibiting moonlighting, usually employers will prohibit employees undertaking outside work through their contract or policy documentation. Moonlighting can give rise to concerns from an employer’s perspective, ranging from health and safety risks due to fatigued employees to other concerns such as poor performance and inadequate rest periods which may breach working time legislation. These issues are further detailed in our article here.

What happened? Transdev Ireland (Transdev), the Luas operator, discovered through a private investigator that their driver, r Caplis, was moonlighting by night as a taxi driver. Transdev dismissed him for gross misconduct. Mr Caplis’ contract with Transdev expressly prohibited him from engaging in other paid employment without his employer’s permission.

Mr Caplis took an unfair dismissal claim to the orkplace Relations Commission ( RC) arguing that he only occasionally worked as a taxi driver and such activity did not breach his employment contract. Transdev defended its decision to dismiss, pointing to the safety-critical nature of the role of a Luas driver. The WRC agreed with Transdev.

Appeal to the Labour Court Mr Caplis appealed this decision to the Labour Court in 219. The Labour Court, in overturning the RC decision, found that r Caplis had been unfairly dismissed and ordered his re-engagement, with his absence to be deemed a period of unpaid suspension. It was held that dismissal for breaching the policy against engaging in other paid employment, by occasionally moonlighting as a taxi driver, was a disproportionate response by Transdev.

Appeal to the High Court Transdev appealed this decision to the High Court (Court) on a point of law pursuant to section 1A of the nfair ismissal Acts 19 – 215 ( Acts) and section 4 of the orkplace Relations Act 215. The grounds of appeal were as follows: 1. The Labour Court had failed to rationally

address the relevant law (specifically section 6 of the UD Acts)

The Court ( umphreys ) accepted that the Labour

Court had omitted to include an analysis of the relevant statutory provisions or related case law in its determination. owever, the Court concluded that such omission was “a harmless error on these particular facts” and that to “cut to the chase” of the matter was not fatal to its finding. 2. The Labour Court had failed to rationally

address the relevant facts of the case

The Court acknowledged that it may not have found the actual dismissal in this instance unfair, however the task of the Court was to review the legality of the decision taken by the Labour Court. ltimately, the Court found that the Labour Court had correctly analysed the relevant safety issues, railway safety legislation and the key elements of evidence. The

Court acknowledged that it is “always possible to suggest that a decision could have been more detailed or more reasoned, but what a losing party is entitled to is the gist of the reasons which, in this instance, was provided by the Labour Court. . The Labour Court had failed to provide

adequate reasons for the re-engagement order

The Court concluded that re-engagement after an unfair dismissal does not require any express ustification because it ows naturally from the finding of an unfair dismissal itself. The Court observed that things might have been different if Transdev had made a detailed fight on the issue of remedy or submitted evidence that re-engagement would have been “disruptive”.

The Court dismissed Transdevs appeal and affirmed the re-engagement of r Caplis. Key Take-aways for Employers

Proportionality of sanction – the spotlight in this case is on proportionality of sanction. The Court’s decision calls into question the ability of an employer to rely on a “zero tolerance policy” regarding occasional additional work without having regard to the reasonableness of the sanction in all the circumstances. Working time obligations - employers should ensure employees’ hours and rest breaks are in line with working time legislation. Keep adequate records. This is especially relevant in the Covid-19 era where it can be difficult to record hours and breaks where employees are working remotely. ppeal to the igh Court – The decision highlights the importance of employers adequately addressing before a court, the remedies available to a potentially successful employee. An employer may argue, where relevant, that re-engagement may be disruptive to the firm or be more appropriate than compensation.

DUBLIN CIVIL CIRCUIT COURT OFFICE

Currently the office operates an open appointment slot between 9.45-1.15 every morning for practitioners to attend and complete ex-parte applications for Court. ou The President of the igh Court has issued an important new Practice Direction relating to affidavits and medical reports grounding wardship applications. The current rules of Court and the current forms do not include guidance for medical reports or affidavits exhibiting such medical reports. Therefore, this is a very welcome Practice irection. As this Practice irection constitutes a significant change to the format of, and time limits for,

Practice Direction Ward of Courts

I, Mary Irvine, President of the High Court, hereby issue the following Practice Direction in accordance with s.11 (12) of the Civil Law and Criminal Law ( iscellaneous Provisions) Act 22. This Practice irection, which concerns the content of medical affidavits medical reports in relation to Wardship Proceedings, will come into force on 5th ctober, 22.

The following information must be included in the affidavit andor medical report of any registered medical practitioner whose evidence is to be relied upon to support a petition presented under the Lunacy Regulation (Ireland) Act 1 1. (1) The date, place, duration and circumstances in which the medical examination was carried out. (The examination should have been carried out within three months of the presentation of the petition). (2) The nature and duration of any prior relationship between the medical practitioner and the respondent. () The nature of the examination carried out and details of the test andor capacity tools deployed for the purpose of concluding whether the respondent is or is not of unsound mind and incapable of managing their affairs. (4) hether in the opinion of the registered medical practitioner, the respondent is or is not of unsound mind and incapable of managing their affairs. (5) here the medical practitioner is of the ust need to attend the office to complete an ex-parte docket which will then be provided with an allocated date and time slot. Check in advance by email as to whether the ex-parte medical affidavits and reports, it is set out in full below.

The timelines reuired in relation to reports are clarified in that the examination of the person must have taken place within three months of the petition and the affidavit to accompany the report must be sworn within one month of the examination of the person.

Significantly, more detailed information is sought from the medical practitioner regarding opinion that the respondent is of unsound mind and incapable of managing their affairs i.e. lacks capacity, heshe should state: (i) the nature of the respondents illness condition; (ii) the likely date of onset of that illness condition; (iii) the symptoms pertaining to that illness condition; (iv) the evidence relied upon in making their diagnosis; and (v) whether the illnesscondition is permanent or likely to improve. docket attracts stamp duty. Some are 25, some and some none. The email address is dublinciviloffice courts.ie

IMPORTANT NEW PRACTICE DIRECTION: WARD OF COURT’S MEDICAL AFFIDAVITS / REPORTS

Barra O’Cochlain, DSBA Litigation Committee the scope of their examination of the person and the evidence of the persons inability to manage their affairs and the nature of the respondents illnesscondition.

Practitioners should note that medical affidavits and reports will not be accepted unless they comply with the Practice Direction.

Áine Hynes

AFFIDAVITS OF MEDICAL PRACTITIONERS SUPPORTING A PETITION

Chair Mental Health & Capacity Committee

() here a medical report is prepared containing the above information, any verifying affidavit sworn by the medical practitioner need only affirm the content of the medical report. The medical practitioner is not required to set out seriatim in their affidavit the information contained in their report. () Any such medical affidavit must be sworn within one month of the date on which the medical examination was carried out and the jurat must comply with S.I. 95 of 2 9.

Fergal Mullins is a solicitor on the Healthcare team at Hayes Solicitors

Out of Time?

Fergal ullins outlines how the igh Court recently considered what special circumstances apply in seeking leave to extend time for service of a Personal Inury Summons

The recent igh Court decision in the case of Brereton v The Governors of the National Maternity ospital rs [ ] IEC ( rereton) provides up-to-date guidance on the Courts interpretation of recent amendments made to rder , Rule 1 of the Rules of the Superior Courts. The decision is of particular interest in relation to the courts interpretation of the necessity on the part of the Plaintiff to show “special circumstances” when seeking leave to extend time for service of a Personal Inury Summons (Summons). 1. Renewal of Summons y way of background, a Summons must be served within 12 months from the date of issue, in accordance with rder of the Rules of the Superior Courts. If the 12-month time frame expires before service has been effected, the Plaintiff may bring an application to the igh Court seeking leave to extend time to renew the Summons.

In Brereton, the Plaintiff alleged medical negligence on the part of the efendants prior to and during the birth of her child on 2 February 21. The Summons was not served on the efendants within the reuisite 12-month period. The Plaintiff therefore made an application seeking leave to apply to renew the Summons, ten weeks after the Summons should have been served. Following the granting of the renewal application by r ustice arr, the efendants sought to appeal the decision. 2. Special Circumstances v Good Reason Test n appeal, the matters in respect of which the recently established “special circumstances” test (as provided for by rder Rule 1(4) of the RSC) apply were disputed by the parties. The Plaintiff asserted that the “special circumstances” test replaced the previous “good reason” test, meaning that a court now has to be satisfied that there are special circumstances to ustify a renewal.

Conversely, the efendant, citing the decision in Ellahi v. overnor of Midlands Prison [ ] IEC , contended that the Plaintiff must satisfy a two part test, namely to show special circumstances ustifying an extension of time to seek leave to renew the Summons but also to show “good reason” to ustify the renewal of the Summons.

In delivering the igh Courts udgment, s ustice yland conceded that the wording of the new rule was ambiguous. owever, she contended that the disagreement between the parties was somewhat academic as both parties acknowledged that the “special circumstances” test places a higher bar on the Plaintiff than the previous “good reason” test.

ltimately, s ustice yland endorsed the two-part process, following the above-mentioned Ellahi case, and applied the good reason test to the renewal of the Summons.

In so doing, however, the Court outlined that in this case, the special circumstances that ustified the extension of time to bring the application for renewal were the same circumstances that ustified a renewal of the Summons, regardless of whether the special circumstances or good reason test was applied. 3. Interpretation of the Special Circumstances Test s ustice yland examined why the Plaintiff failed to serve the Summons on time. She found this arose due to inadvertence on the part of the Plaintiffs solicitor, rather than the necessity to await further medical reports, as had been averred to by the Plaintiffs solicitor.

Justice Hyland noted that it was clearly intended to serve the Summons on time, as illustrated by the Plaintiffs solicitors letter to the efendants on 1 arch 219, days before the expiry of the 12-month service period. Furthermore, the application for renewal was made 1 weeks after the period for service expired, which was considered to be “at the lesser end of the spectrum” compared to the cases of Chambers v enefick 2 IR 52 and Roche v Clayton 199 1 IR 59 which involved delays of months and over 5 years respectively. s ustice yland noted changing the applicable test to “special circumstances” would mean much shorter periods of delay are likely to be treated as sufficient to ustify a refusal to renew a Summons. It was also indicated that had the period of delay been longer by even a month or two she would have been inclined to alter her approach. Nonetheless, the Court held that a ten-week delay in the context of a 12-month period, was sufficient to find that the balance of ustice favoured upholding the decision to renew the Summons. 4. Comment

The udgment is useful guidance on the applicable test and also in respect of the circumstances in which a renewal application is likely to be successful or not.

The udgment rebuffs the proposition that inadvertence on the part of a legal advisor cannot be a “good reason” or less still a “special circumstance” to ustify an extension of time for renewal of a Summons.

The udgment also, however, suggests that each case must be assessed on its merits and factors such as the circumstances surrounding any inadvertence, the length of the delay in making the renewal application and the possibility of preudice being caused to a efendant warrant due consideration in considering any such application.

Gerard Kelly is head of the Intellectual Property Law team at Mason Hayes & Curran

Finding the Culprit

Indentifying the ‘keyboard warrior’ in an anonymous defamatory internet post can be a challenge. erard elly explains the nature of a Norwich Pharmacal application which can unveil such hidden identities

Norwich Pharmacal relief was coined from the UK case of Norwich Pharmacal v Customs and Ecise Commissioners

C . orwich Pharmacal relief has, in recent years, become a valuable tool in the commencement of litigation and increasingly popular in the field of online defamation. The internet has become the chosen platform for many individuals who seek to remain anonymous, while at the same time, spreading hate speech, harassing and/or defaming others. As a result, these orders are commonly sought from internet service providers in order to disclose the identity of the wrongdoer. We are regularly instructed in the defence of these applications by internet service providers and we have seen a marked increase in their popularity in recent years.

The Nature of the Relief A Norwich Pharmacal order is an order made by the Court which compels the respondent to disclose certain information or documents to the applicant. This form of order is primarily sought as a means of identifying the appropriate defendant to an action or obtaining information which is required to plead a claim. It is commonly sought against an innocent intermediary who, although not directly involved in the offending activity, holds information or documentation required for the issuing of proceedings.

Norwich Pharmacal relief is an equitable remedy and is not expressly provided for under any Court rules or legislation in this jurisdiction. This means that the Court will grant Norwich Pharmacal relief on the basis of its inherent jurisdiction and only where it is deemed necessary and where the interests of justice require it.

The Norwich Pharmacal case The plaintiffs in this case were confident that their patent was being infringed by illicit importers. They sought to bring proceedings against the Customs and Excise Commissioners for the purposes of revealing the names of the wrongdoers. The Court held that a party is obliged to disclose the names of third parties who have committed a wrong if they have facilitated the wrongdoer, even in circumstances where their conduct or connection to the third party’s alleged wrongdoing is entirely innocent. The availability of this relief in Ireland has been acknowledged by the Supreme Court.

The Test The test which was set out in the above case allows the Court to grant the order if the applicant can demonstrate the following: • A reasonable basis to allege that a wrong has been committed • The disclosure of information or documents from the third party is required in order to enable action against the wrongdoer The respondent is sufficiently involved in the wrongdoing so as to have facilitated it, even if innocently, and is in a position to provide the required information, and • The order is necessary in the interests of justice

Requirement to Prove Legal Wrong It is essential, when seeking such relief from the Court, that the applicant prove that they have suffered a legal wrong. The Irish Supreme Court ( oyle v The Commissioner An arda Sochna 1999 1 IR 249) has stressed that this type of relief is not akin to an interlocutory motion for discovery, which can rely on assertions or hearsay. Evidence and agreed facts must be brought to the table. Therefore, in the absence of concrete evidence of a legal wrong, Norwich Pharmacal relief will not be granted.

Conclusion

Norwich Pharmacal relief is an invaluable tool in the process of identifying and seeking recourse against wrongdoers particularly in the online sphere.

Online defamation has become an increasingly regular occurrence in our society. As such, it is likely that Norwich Pharmacal relief will continue to play a significant role in aiding claimants to identify the relevant wrongdoer for the foreseeable future. However, it should be borne in mind that a legal wrong must be proven to the Court in order to be granted such relief. From experience, it also appears prudent that applicants should first check that the relevant intermediary is potentially in a position to comply with any order sought, particularly regarding accurate identification of specific pages or posts, as such pre-action correspondence can save significant time and money for the parties and be of assistance to the Court.

Call for firms to join Pro Bono Pledge

Pro ono Pledge Ireland is the first collaborative effort in this country to articulate the shared professional responsibility of lawyers to promote access to ustice and provide pro bono legal assistance to those in need.

The Pledge was developed by an independent grouping of law firms, barristers and in-house legal teams with a presence in the Republic of Ireland who have come together to affirm their commitment to delivering pro bono services. The Pledge is coordinated by PILA (the Public Interest Law Alliance, a proect of FLAC).

This initiative is running in tandem with a new pro bono condition that was introduced into public tenders for legal services by the ffice of overnment Procurement in March.

ue to be launched in November 22, the Pledge provides a common definition of pro bono, a commitment to an aspirational target of 2 pro bono hours per lawyer per year and a mechanism to benchmark progress through annual reporting of anonymous pro bono data. nder the Pledge, pro bono legal services are focused on the unmet legal need of low income, disadvantaged or marginalised individuals or communities who are left behind by the current ustice system, and the organisations that work with them. This need has become particularly urgent in light of Covid-19, where PILA has seen a 5% increase in demand for pro bono legal services from its N partners.

The Pledge promotes an aspirational target of 2 hours per lawyer per year averaged across a law firm as an appropriate minimum commitment. The establishment of a concrete, uantifiable goal will assist the legal profession in communicating support for pro bono and measuring pro bono activity.

The Pledge recognises that Signatories will achieve the target within different timescales and that some Signatories may set higher pro bono hours targets. The intent is to collaborate to achieve the target, while respecting that substantial differences will exist between Signatories as regards their current levels of pro bono activity.

In order to become a Founding Signatory of Pro ono Pledge Ireland, please visit www.probonopledge.ie or contact Rachel Power at rachel.power ac.ie

New Podcast - an opportunity to discuss the topics they are passionate about in an open and friendly environment. The Legal Lunch hile podcasting is a world away from rennans day ob as a probate genealogist, he enoys the creative side of the recording and editing process. I have a mobile recording studio, which enables me to visit my guests at their preferred location, and I A new legal and business podcast has Lunch, hosted by Padraic rennan, edit, mix and master the material myself in recently been launched, featuring many of anaging irector of rin Research, is my spare time. Irelands leading lawyers as well as service aimed at anyone operating in the legal uests for the Legal Lunch in ctober providers to the profession. The Legal community in Ireland and is set in an include well-known solicitors ohn eary informal interview-style format. of .. eary Solicitors ( ditor of the e decided on a more relaxed, informal Parchment), Flor cCarthy of cCarthy approach to The Legal Lunch, where we Co Solicitors, Lisa c enna of c enna can get to know the person behind the Co, and avan all, former barrister and brand. eve tried to stay away from the solicitor turned serial entrepreneur. corporate feel and keep it a little more e have a good mix of guests that will personable, says rennan. hopefully be of interest to the profession. Podcasting has become ever more Im a firm believer in sharing your popular of late as a means to communicate experiences to inspire others and hopefully with your desired audience, and rennan The Legal Lunch will do ust that, especially thinks this is an opportunity for legal during these continually difficult times, practitioners to get their message out into says rennan. the world. e are presenting a platform The Legal Lunch can be found on all main to lawyers and legal service providers to podcasting platforms including Spotify, talk directly to their peers and customer Apple Podcasts and oogle Podcasts. base. It is an opportunity to share their If you would like to nominate a colleague or knowledge with colleagues and showcase enquire about being a guest on The Legal Lunch, their brand and business as they see fit, please contact Padraic Grennan at says rennan. It also gives interviewees info@erinresearch.ie

2021 DSBA Annual Conference – Lisbon, Portugal

The SA has announced that its Annual Conference will take place between the 1th and 19th September 221 in the Portuguese capital of Lisbon. The five-star Tivoli Avenida Liberdade otel has been chosen as the venue to host the expected large group of ublin solicitors and their partners for this three-day event.

In addition to the business and CP seminars that will take place over the long weekend, delegates will be able to enoy a visit to the N SC orld eritage site Sintra for a guided tour of Palacio Nacional – located km from Lisbon. Another optional tour will include the eronimos onastery

A ala inner is scheduled for the Saturday night at Casa- useu edeiros e Almeida.

Booking forms are available online at www.dsba.ie

www.dsba.ie

See our regularly updated website which publishes useful information for members concerning, amongst other things, professional and social material.

Stuart Gilhooly is a former President of the Law Society and DSBA. He is a partner at HJ Ward Solicitors, Harold’s Cross and former editor of the Parchment

Many of us were here eight years ago when we thought we could never survive the double whammy of a recession and an insurance crisis

Staying Alive

The new normal. As recent mindless non sequiturs go, it’s probably the most ubiquitous and most infuriating. There is nothing normal about our current reality, it’s not even that new. A world in which we can’t interact daily with other people, travel any reasonable distance or even go to a pub without wearing two coats is never going to be normal, no matter how long this pandemic persists.

Nonetheless, no amount of complaining is going to make it go away any time soon, so we have had to adapt our lives and make the best of it. How does this work though in a legal profession which has for centuries relied on physical courtrooms and actual documents which must be signed in ink and in the presence of others?

The answer is with great difficulty but every problem has a solution.

Litigation has probably suffered the most. Every case has at least two parties with often opposite motivations. It can frequently suit one of the parties, either the defendant or respondent, to delay the resolution indefinitely. It is the setting of a court date for hearing that often brings about finality. hile mediation can play an important role, it only works if both parties wish to settle and this is usually when either a court date is looming or costs are spiralling.

The Court Service is providing as good a service as is possible in all the circumstances but through no fault of anyone, only so many cases can be heard and the same applies to interlocutory matters which are necessary to bring matters to a head.

As a result, court dates are either hard to attain or necessarily delayed well beyond the usually efficient timelines prepandemic. This can mean no impetus to settle.

Ultimately, it is a matter for us to be as pro-active as we can to settle those matters that can be resolved. Others may have to run and this is inevitable but picking up a file and either persuading counsel to contact their opposite number or doing the same yourself has not just become an option but a necessity.

Other forms of transaction can be handled by email but in a world where we are still some years away from e-conveyancing and e-signatures will often not suffice, clunky solutions must be found. Affidavits can be sworn remotely though it is necessary to still witness a signature and have both deponent and witnessing solicitor physically sign the document. The sooner this archaic and utterly pointless tradition is abolished the better but for the foreseeable, document swearing in whatever form we can manage will remain with us.

The big issue facing us all though is survival. A challenging insurance renewal is the last thing we need but like all perfect storms, there is no shelter from it and increased premiums are coming for most of us.

It is a very stressful time for so many reasons but the only option is to battle on. Many of us were here eight years ago when we thought we could never survive the double whammy of a recession and an insurance crisis. The effects of both were worse than what we currently have (though this may yet deteriorate considerably) and we survived.

There will be more sleepless nights before this is over but it is the only show in town. nless you can afford to retire or have another job to go to, this has to work. So, we have to be creative. et out that fish file which has moss growing on it on the oor and move it on. Close the sales a little bit quicker. Call your colleague to settle a case you think can’t be settled. You might be surprised. Send out that bill on a file you finished months ago but didnt have time to invoice.

Very few will look back on these days with fondness but set two attainable goals. Stay alive and stay in business. You could do worse.