Parchment Autumn 2023 by 256 Content

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D UB LIN SOLICITORS B AR ASSOCIATION MAGAZ INE | AUTUMN 2023 | ISSU E 97

DOMESTIC VIOLENCE LEAVE ON THE WAY Additional statutory entitlements for employees

JUSTICE MINISTER HELEN MCENTEE INTERVIEWED CRIMINAL LEGAL AID FEES ISSUE

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Autumn 2023 dsba.ie

From the Editor

elcome to the autumn edition of the Parchment. The one-day of strike action by our colleagues at the Bar has come and gone and there has been no resolution of the criminal legal aid fees situation. As a solicitor running a general practice in the West of Ireland, the current criminal legal aid fees are totally inadequate and meagre. However, we represent clients in the Courts as a service to them but it is a loss-maker for most of us. Unless you have a large volume of cases. For example, in the District Court – solicitors receive a one-off fee of 201. 0 for a hearing and there is a fee of 0.39 for each time that case is before the District Court for mention and or adjourned. Consider a day, where a solicitor has no hearings and say four for mentions’. That’s a total fee of 201. . After withholding tax, this is reduced to 1 1.24. A solicitor might have to be in Court from 10.30am until 4pm, until his her last case is reached.

The related and heretofore unhighlighted scandal are the legal aid fees paid for Family Law District Court cases. Most solicitors have long since left this panel and only a handful remain. A composite fee of 339 is paid to District Court family law practitioners for maintenance, guardianship, custody access, and domestic violence cases. And if your case is adjourned once or 14 times as a case did for me – the fee of 339 is what is paid. That fee includes a consultation s , correspondence and court attendances. It is rare that these cases are reached on the first day of being listed. The fee structure in no way reflects the work done. If the number of hours worked and time incurred were divided by the fee received, many solicitors are working for peanuts. And poor-quality ones at that.

John Geary jvgeary@gmail.com

DSBA COUNCIL 2022/2023

SUSAN MARTIN DSBA President

MATTHEW KENNY DSBA Vice President

PAUL RYAN CPD Director Commercial Committee

KILLIAN O’REILLY Chair of Litigation Committee

CIARA O’KENNEDY Chair of Employment Law Committee

CIARA HALLINAN Chair of Criminal Law

NIALL CAWLEY Honorary Treasurer

JOAN DORAN Secretary

GERARD O’CONNELL Chair of the Parchment Committee

AVRIL MANGAN

JESSICA HICKEY

EIMEAR O’DOHERTY Chair of Inhouse

PATRICK LONGWORTH Chair of the Younger Members Committee

STEFAN O’CONNOR

ÁINE GLEESON

PUBLISHED BY The Dublin Solicitors Bar Association, Unit 206, The Capel Building, Mary’s Abbey, Dublin 7

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

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

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

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

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Autumn 2023

Contents 6

Advice on Professional Indemnity Renewal Niall Cawley gives some helpful pointers as the Professional Indemnity Insurance Renewal season comes around

Keith Walsh reports on the secular opening of the new legal year for the first time in over 100 years

A Woman for all Seasons

AI and Copyright

Probate – who is Entitled to Arrange the Burial?

Keith Walsh talks to outgoing DSBA President Susan Martin about law and life

Barry Scannell examines recent decisions by the US Copyright Office and US courts which mark significant developments in the realm of AI and copyright

Zoe Hughes says that for a long time, the legal position on this question has been mired with uncertainty

The Might of McEntee

A new era for Irish Competition Law

Kevin O’Higgins profiles Minister for Justice Helen McEntee T.D. and meets her for a chat

Joanne Finn and Elaine Davis outline a new dawn in competition law

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

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A WOMAN FOR ALL SEASONS... SUSAN MARTIN

The Opening of the New Legal Year

If my time with DSBA has taught me anything it’s the importance and benefit of collegiality

Autumn 2023 dsba.ie

Contents

REGULAR FEATURES 01 Editor’s Note 04 President’s Message 56 News 58 Photocall 64 Closing Argument

24 34

Heir Apparent

First Judgment on Data Beach Damages

Parchment Editor John Geary interviews Erin International Chief Executive Padraic Grennan

Gail Nohilly, David Cullen, Adele Hall and Rachel Hayes assess a significant decision of the Circuit Court

Personal Injury Guidelines Update

Discharge from Wardship

Domestic Violence Leave Pay

Elaine Healy and Lorna Kennedy assess the Guidelines’ operation in practice and their overall impact to date

Registrar of Wards of Court Alice White sets out the new discharge process

Alicia Compton and Ellen O’Duffy scrutinise the new Work Life Balance and Miscellaneous Provisions Act 2023 (the 2023 Act)

Allocating Costs in Civil Litigation Gerard Kelly and Gearoid Carey consider a recent Court of Appeal case and its implications

Pension Scheme Considerations under Capacity Act Elaine Cunningham and Sean Barton highlight what trustees and administrators of pension schemes need to be aware of in dealing with beneficiaries

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Message from the President

Giorraíonn beirt bóthar

here is something about seanfhocail, the pithy observations that contain much wisdom, that appeals to me. They can transmit in a few words a lot of meaning. The literal translation of giorraíonn beirt bóthar is “two people shorten the road” and this is a favourite of mine, which emphasises the importance of collegiality. A warm welcome and collegiality are hallmarks of the Dublin Solicitors Bar Association and are incredibly important. Colleagues are more than members of the same profession – it goes beyond a shared academic and professional qualification. We support each other, we help, we endure and we share in good times and in bad. By the time you are reading this, barristers will have gone through with their withdrawal of services on the 3rd October. This is being done to highlight the unfair, uneconomic rate of remuneration paid to practitioners in respect of criminal legal aid. This is an issue that ought to concern everyone, not just those who practise in criminal law. The right of each accused person to a fair trial is a cornerstone of any democratic system. We must be ealous in safeguarding our criminal justice system, as without it the rule of law is undermined. Access to a defence when facing criminal charges is a key part of upholding the rule of law. DSBA has been working assiduously on this issue for many years. In May 2023, we wrote to the then Minister for Justice seeking dialogue on criminal legal aid rates. Our request to engage is ongoing and we will not cease our efforts until progress is made. 13th September 2023 marked the final of the DSBA Soccer League. Congratulations to the winners, Arthur Cox, and well done to runners-up Mason Hayes Curran. Many thanks indeed to all those who played in the league in making it such a great competition. DSBA council member Patrick Longworth and his sub-committee deserve particular praise for making this such a fantastic event. A collegiate spirit was much in evidence in London where the 2023 DSBA Conference was held. This was a wonderful event. Our conference was opened by the President of the Law Society of England and Wales, Ms Lubna Shuja. We were fortunate enough to have Baroness Hale of Richmond, the former President of the Supreme Court of the United Kingdom, as our keynote speaker. The after-dinner speech at the Gala Dinner was given by Human Rights barrister 4 the Parchment

Caoilfhionn Gallagher KC. It was a great opportunity to learn, see some interesting sights and catch up with DSBA colleagues. Many thanks to all those who travelled for the conference and particularly to our sponsors, Stryve. The DSBA AGM will be held on the 24th October 2023 at the Westbury Hotel. I encourage you to attend, to hear reports from the Council and committees about the work they have done over the past year and catch up with colleagues. On that occasion I will hand over the reins to Matthew Kenny, our ice-President. As I conclude my term, I want to thank sincerely our staff at DSBA H , DSBA

Members, Council, Committees, our PastPresidents and those who have provided so much support, goodwill and assistance during the year. At the beginning of my year, I quoted from Philip Larkin’s poem, The Trees. It seems apposite to conclude my term with a quotation from the same poem: Yet still the unresting castles thresh in fullgrown thickness every May/Last year is dead they seem to say/Begin afresh, afresh, afresh. I wish Matthew and everyone on Council, Committees and each member of the DSBA all the very best for the coming year. Susan Martin, DSBA President

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Advice On Professional Indemnity Renewal For many, the ongoing Professional Indemnity Insurance Renewal season comes as an annual shock. Many of us, once it is over, tend to forget what it was like – until we are faced with it again. Niall Cawley gives some helpful pointers

Background

Recent Decision

The purpose of this article is to assist colleagues in the preparation for and the maintenance of records in relation to Professional Indemnity Insurance proposals going forward.

The decision of the Supreme Court in the case of Smith v Cunningham and others 2023 IESC 13 delivered on the 25th of May last is of considerable importance in terms of seeking to bring clarity to the question of when time runs. That is to say when the Statute of Limitations start to run. To determine that, you answer the simple question of when does the cause of action lie. The cause of action in that case concerning a conveyance arose at the time that the work was done and in consequence the statutory period expired six years after the work was done. The decision would appear to bring clarity to this question and to at least limit what was a worry for colleagues about unlimited exposure to liability in such circumstances. This on its face ought to assist the profession in that it sets a clear limit on our liability and by extension should also assist in keeping our premiums down.

Current Position As you will be aware, not all insurers cover all firms. At time of writing this article there are eight Insurers in the market and these are: AIG Europe SA; Allianz Global Corporate Speciality AG; AVIVA Insurance Ireland, Berkshire Hathaway; C.N.A Insurance; Liberty Speciality Market; QBE Insurance SA/NV; and STAR European Insurance. It should also be understood that while firms such as C.N.A. Insurance and STAR European Insurance provide cover for sole practitioners in small practices, not all of the firms do and some firms spread liability in terms of the quotes that they have given. You need to check with your broker as to who provides cover for what firm. For example, it is this writer’s understanding that Berkshire Hathaway Insurance’s client list would be very small and exclusive although of course I would be pleasantly surprised if I was corrected on that. 6 the Parchment

Advice on Renewal Process The main purpose of this article as stated is to offer such advices as are available at this time to colleagues dealing with the reality on the ground. That is to say, we have a renewal coming up and we have to deal with

Autumn 2023 dsba.ie Niall Cawley is principal of Niall T. Cawley Solicitors, Blackrock. He is a Council member and Treasurer of the DSBA

Practice Management

it as it is at the moment. With that in mind therefore, we are making the following recommendations to you in the hope that they may be of some assistance: 1. Prepare your Application Early We know this is constantly being said but leaving your application until the last-minute leaves you exposed to having to accept whatever terms you are offered. one of us are particularly enamoured about the idea of preparing the application for insurance but it is something that needs attention early on and certainly by the beginning of October your application should be ready for submission. 2. The Common Proposal Form We are strongly recommending that you use the Common Proposal Form. You will be able to obtain same from the Law Society’s website and you should use it. As the 2023 / 2024 form is not yet available, we suggest that you use the draft based on the existing 2022 / 2023 form and then you can update same. One area that you might want to consider is the control systems that you have now put in place for those of you working remotely so that you can satisfy your insurer that you have adequate supervision systems in place as this may come up. Thus, we recommend that you AVOID using the Short Form which is often offered by Insurance Companies. The reasons for this are as follows: a. Even where your insurance premium is satisfactory, having used the insurance company’s short form sooner or later you will have to use the much longer Common Proposal Form. As this writer has discovered, an insurer who is happy with your short form for many years will eventually decide that they want the Common Proposal Form or a long form completed. The problem with that of course is that the amount of information that you have to collate on an annual basis will be multiplied by the number of years that you have not done it. We would strongly advise therefore that you complete the Common Proposal Form for that reason. Once you have it done then all you need to do each year is update the last one. b. If you use the short from, then you are sending a signal to the insurer you are asking a quote from that theirs is the only company that you have gone to. They are therefore aware by implication that you have not completed the Common Proposal Form and that no other insurers are on the field vis a vis yourself. If you find yourself with the short form having gone in and a large quote coming out to you at the last minute you are in a very weak position. c. Using the Common Proposal Form means that you are now free to send your Proposal Form to as many insurers as you want and, frankly, we would suggest that you send it to all of the insurers or at least to all insurers you believe will offer you cover.

Long-Term Relationship It has often been suggested to us that retaining a long-term relationship with your insurer is to your advantage and certainly that does appear to make sense. However, what we have seen is that insurers feel

free notwithstanding your long-term loyalty to them that they can increase your premiums and they also feel free when it suits them to withdraw from the market or your segment of the market and leave you high and dry. For that reason, therefore we strongly recommend that you approach all appropriate insurance companies in the market.

Brokers Check with your broker, if you are using one, as to what firms they work with. There is no point in sending a Proposal Form to a company that is already represented by the broker that you have retained to look after your interests. This avoids your broker being informed that a proposal has been submitted by you separately. You are hoping, if you have a good broker, that he or she will go to bat for you and certainly they would be undermined in that respect if the insurance company was telling them that they received a separate proposal whether from another broker or directly from you so make sure you avoid that particular pitfall. In closing, it should be noted that while we have indicated above who the current insurers are, check at the time that you are submitting. The Law Society have indicated that they hope that further insurers will come into the market. There is no guarantee of this but, if it does happen, needless to say be sure that you get your Proposal Form out to them as well especially if they are new into the market as they may be keen to do business. P

If you use the short from, then you are sending a signal to the insurer you are asking a quote from that theirs is the only company that you have gone to

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DSBA Annual Conference

The DSBA held a very successful annual conference in London from the 15th to 17th September 2023. The Business Session took place in the Read Room of the Law Society, Chancery Lane. The President of the Law Society of England and Wales, Ms. Lubna Shuja, President of the Law Society of Ireland Maura Derivan, Dr. Rois Ni Thuama and Baroness Hale of Richmond, the former President of the Supreme Court of the United Kingdom, addressed the DSBA Business Session.

Left: Olivia McCann, Waterford Law Society; Susan Martin, President, DSBA; and Maura Derivan, President, Law Society of Ireland

Left: Dr. Rois Ni Thuama, Cyber Security expert, presenting at the DSBA Business Session Far left: Áine Hynes, Keith Walsh and Katharine Kelleher

Right: Liz Dowling, Morette Kinsella and Margaret McGinley Far right: Colm Costello and Anne Leech

Left: Tony O’Sullivan, Deirdre Walsh, Mary Swords and John O’Malley Far left: Bernadette Cahill & Olivia McCann

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Autumn 2023 dsba.ie

Right: Jason Popplewell of Stryve, Susan Martin, Matthew Kenny and Dr. Rois Ni Thuama Far right: President of the Law Society of England and Wales Ms. Lubna Shuja addresses the DSBA gathering

Left: DSBA Presidents Forum: Susan Martin, Matthew Kenny and Tony O’Sullivan Far left: John O’Malley and Paul Ryan

Right: Michael Mulcahy, Susan Martin and Veronica Gates Far right: Joseph Mannix and Pat Igoe

Far left: Matthew Kenny and Mark O’Sullivan Left: Phil McCarthy, Mary McCarthy, Angela McCann and Nora McCarthy

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The Opening of the New Legal Year – A NEW TRADITION BEGINS On 2nd October 2023 at noon, the great and the good of the judiciary, the legal profession, the Courts Service, Department of Justice and stakeholders in the Courts system as well as honoured foreign guests, all gathered in the Round Hall of the Four Courts to celebrate, for the first time in over 100 years, the secular opening of the new legal year. Keith Walsh reports

The Chief Justice, Donal O’Donnell

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hief Justice Donal O’Donnell welcoming those present, said: “Respecting traditions is not, however, to allow the past to control the present. The fact that, as Sche er puts it, ‘tradition is a multigenerational enterprise’ means that, in fact, each generation chooses which traditions, or parts of traditions, it considers worth maintaining, and in some cases adding to, adapting or refreshing. It is the present generation which decides whether a tradition of a past generation is worth following. 100 years ago in October 1923, this great building was still a smoking ruin.” Under the dome of the Four Courts, which was in its usual state of perpetual repair, the Courts Service Choir provided some light musical relief. While a Church of Ireland service and a Roman Catholic Red Mass take place on the first day of the new legal year and are, as Chief Justice O’Donnell said, “touching services that memorialise those members of the legal profession who have died in the past year and provide an opportunity for quiet re ection”, he highlighted some discomfort with the opening of the legal year being marked by not one but two religious ceremonies when neither the 1922 nor the 1937 constitution provided for a state religion. He thanked Ms. Justice Eli abeth Dunne of the Supreme Court who chaired the committee that discussed, with all interest groups and stakeholders, the possibility of holding a simple secular ceremony which would be the o cial opening of the legal year and, if so possible, to recommend the form of ceremony.

Autumn 2023 dsba.ie Keith Walsh is a Dublin solicitor practising primarily in the area of family law and family disputes. He is a qualified mediator and collaborative lawyer

CEO of the Courts Service, Angela Denning

Why have any Court Ceremony at all? Chief Justice O’Donnell pointed to the “value in having a fixed point to measure from, and a point to push the reset button”. The ceremony is a reminder of “our place in the legal world” and he welcomed judges from the EU as well as the legal profession and others involved in the administration of justice. It places, he says “the courts system in the constitutional scheme and the judicial power. As Alexander Hamilton famously put it, it holds neither the sword nor the purse and relies solely on judgment. It depends upon the Executive to enforce its decisions. It also depends upon the executive and legislative branches to provide the resources necessary to permit the courts system to function. Our ceremony today also affords us a timely opportunity for re ection. As many of you know, next year we will celebrate the centenary of the Courts of Justice Act 1924. My hope for that significant occasion is that we not only celebrate what has been achieved in the last hundred years, but as importantly, that we set goals and ambitions for the next century, and in doing so, identifying those things in our system that deserve preservation, and those which can be adapted, improved or changed.” Angela Denning, the Courts Service CEO, emphasised the importance of provision of information to the public in accessible and understandable forms. Those from Kerry present were heartened to hear that in coming days she expected to sign “the contract to complete the purchase from erry County Council of a site at the Island of Geese in Tralee for a new courthouse for County erry when funding becomes available”. Family lawyers’ ears flapped when they heard that the Hammond Lane Family Law complex will go to planning by year end and thereafter the

News

Attorney General Rossa Fanning SC

ational Development Finance Agency will put the project out to tender, although no completion date was mentioned. Attorney General Rossa Fanning SC described the Round Hall, quoting from Ruadhan MacCormaic’s peerless book, The Supreme Court, as the “throbbing heart of the FourCourts where lawyers met, mingle and cut last-minute deals on their way into court.” The Attorney brought the audience back to the old courts in the shadow of Christ Church Cathedral “where lawyers and judges worked cheek-by-jowl with shopkeepers and woolspinners” and where the courtrooms were not enclosed. “People standing in the central hall itself could see into the courtrooms, and physically witness lawyers and judges alike participating in and administering justice. The Round Hall with its four courts was modelled on the same principle of open and public justice and the doors were only added some time after construction but those doors remain open to the public.” He quoted Louis Brandeis “sunlight is the best disinfectant”, and emphasised the importance of court journalists “who provide fair and accurate reports of court proceedings” and fulfil a vital function “as, in any society, the more aware that citizens are of the administration of justice, the better the adherence to the rule of law”. The Attorney spoke briefly on the importance of the new State Litigation Principles which for the first time “clearly articulate standards for the State and its lawyers in the conduct of legal proceedings” before wishing those present a happy and fulfilling new Legal ear. P

Each generation chooses which traditions, or parts of traditions, it considers worth maintaining, and in some cases adding to, adapting or refreshing

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A Woman for all Seasons As Susan Martin comes to the end of a very successful year as DSBA President, she talks to the Parchment’s Keith Walsh about her background in Cork, her career in law and her many lives outside law

A Cork family

Army Barmy

Susan hails from Minane Bridge, a small village in Cork, near the sea. She has four siblings all of whom have professional qualifications and the family have a great interest in further education. This extends to Susan’s parents both of whom studied at university at night when the family were young. Susan’s family inspired her interest in law. “I can pinpoint the minute it happened, I was about nine… my grandparents brought me around to collect rents with them and my grandfather said ‘we have this tenant and they’ve been there for 2½ years and we need to know what they’re doing, whether they are finishing up or staying as they may want to claim a new lease (business equity relief)’. To me, it seemed that if you knew what the rules were you could understand the system and it could help you. I twigged then if you had legal knowledge in advance you would make better decisions. In my late teens, I was introduced to the family solicitor in Cork, Joe Cuddigan, when I sat in on a meeting. I was so interested to observe him in action, taking instructions, analysing the situation and then giving his advice. From then on, I knew what my career would be.”

Susan had an early interest in the military - “I’ve always been army barmy. My Dad had served in the reserve, then called the FC . I also had an interest in military history from a young age. My grandparents had a huge collection of books in their house and this, and my Dad’s reading, would have sparked my interest. “In 1993, when I was in secondary school, I heard that the FC would accept women for the first time and I joined the Military Police in Collins Barracks, Cork. I took to it immediately. After some time, I was promoted to Corporal and in 1996 I was sent on a Potential Officer’s Course.” Susan was commissioned as 2nd Lieutenant in 1997 and from there has climbed the ranks. Over the years she has served in the infantry and as a staff o cer. She currently serves as Commandant in 2 Brigade Military Police in Cathal Brugha Barracks, Dublin. “I have always regarded my time in the Army Reserve as a form of practical patriotism and an opportunity to serve. I have enjoyed every minute – the last 30 years have own by!”

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I have always regarded my time in the Army Reserve as a form of practical patriotism and an opportunity to serve

Autumn 2023 dsba.ie

Interview

Bryan Meade

Keith Walsh is a Dublin solicitor practising primarily in the area of family law and family disputes. He is a qualified mediator and collaborative lawyer

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Bryan Meade

It has been really terrific to co-operate with Bar Associations around the country and with the Law Society on issues such as EPAs and Criminal Legal Aid Family Life Susan’s husband Gary is from Dublin. They met through the Army Reserve. Gary reached the highest rank in the Army Reserve when he was promoted to Lieutenant Colonel in March 2020. They have four children, one of whom has autism and an intellectual disability. In 2016, they were joined by another family member, Ruby, an assistance dog, provided by Autism Assistance Dogs Ireland AADI’ . “Ruby is a Newfoundland Retriever cross. She’s been a wonderful addition to the family and it has transformed us. Having Ruby with us has meant that we have been able to do lots of things that it would have otherwise been impossible to do – such as bring our son Garoid and our family to 14 the Parchment

Funderland, Disneyland Paris, on holidays. It is no overstatement to say that AADI have changed our lives.” Susan became more involved in AADI and served as a board member for a time and has helped in raising funds so that more dogs can be trained to help other families. “My DSBA friends have been invaluable in helping me fundraise, particularly Orlaith Traynor.”

Life in Practice Susan founded her own practice about 20 years ago. She has a good general practice in the area of civil litigation, particularly personal injury, probate litigation and landlord and tenant. A lot of her work comes from OMCs Owner Management

Companies . “I have great clients and a strong team to support me in the office. I consider myself very fortunate in terms of my work in that it has been so varied and interesting.”

DSBA “I first became involved in the DSBA in about 2009. After serving on the Practice Management Committee for a few years I was elected to Council. I really enjoy being involved in the Bar Association. I have made terrific friends, learned so much about the law and practice and have completely absorbed its atmosphere of collegiality. “The DSBA has been a huge part of my life for more than a decade now – not only have I gained from the information and education it transmits, it helped me to hone my writing skills by way of writing articles for The Parchment, submissions and in the delivery of papers to seminars over the years. This has been a massive and unexpected bonus of my involvement.” During her year as President of the DSBA, Susan has had a focus on in-house and public sector solicitors as well as collaboration with Bar Associations and with the Law Society.

Autumn 2023 dsba.ie

Interview

Photography: Bryan Meade and Owen O'Connor

At the core of her concerns is representation of the profession. “If my time with DSBA has taught me anything it’s the importance and benefit of collegiality. It has been really terrific to cooperate with Bar Associations around the country and with the aw Society on issues such as EPAs and Criminal egal Aid – to represent the interests and concerns of solicitors in dealing with such issues.”

A Woman for all Seasons But Susan is not just a solicitor, a mother, wife, commandant, lecturer and military lawyer, historian. She is also a respected legal author having written Civil Procedure in the Circuit Court 3rd ed. and Practical Probate with Karl Dowling B.L. She has also co-authored the new edition of a Solicitors Guide to Professional Conduct. Susan is also a research student at the University of Northumbria where she is completing her doctorate on the subject of the regulation of solicitors. “I’m very interested in the regulation of solicitors and wanted to understand what behaviour leads to strike off. I believe this is valuable research as it is compliant solicitors who pay in terms of the reputation of the profession. By way of example, in cases where there has been misappropriation, compliant solicitors pay to the clients of the noncompliant. I am investigating what if anything can be done to ameliorate the situation, given that it is compliant solicitors who bear the cost, both financial and reputational.” Away from the law, Susan is a Morrissey fan; she saw him earlier this year in Vicar Street and has seen him many times live. “His music speaks to me. He is a poet. I enjoyed the music of The Smiths when I was young and, if anything, I love it more now.” Another passion for Susan is books, particularly biography. “I have become a big fan of audiobooks, particularly having been sat in front of a computer screen at work all day. I’m enjoying ‘ illing Patton’ by Bill O’Reilly and Martin Dugard at the moment. I also subscribe to the ondon Review of Books and The Economist.” So great and wide-ranging was our interview that we barely touched on the DSBA, but readers will know that Susan Martin is DSBA to the core. So, what words sum up her attitude to life: “Ich dien – I serve”. And who could argue with that? To paraphrase Robert Whittington’s description of another lawyer, Thomas More, just 500 years ago: “Susan Martin is a woman of an angel s wit and singular learning. I know not her fellow. For where is the woman of that gentleness, lowliness and affability And, as time requireth, a woman of marvellous mirth and pastimes, and sometime of as sad gravity. A woman for all seasons.” P

Owen O'Connor

Burn Down the Disco…

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Avril Scally is partner and Head of the Medical Negligence team at Lavelle Partners LLP. She is a member of the DSBA Litigation Committee

Medical

Temple Street Hospital Reports Avril Scally reviews the recent report from Children’s Health Ireland CHI collating the findings and recommendations from two clinical reviews into spinal surgery for patients with Spina Bifida at Temple Street Hospital Purpose of the Report The purpose of the report is to • Outline the rationale as to why patients’ clinical reviews were undertaken including establishing if there were issues with existing spinal surgery services for patients with Spina Bifida Collate and detail the findings from the reviews and Develop a CHI Spinal Surgery Programme Implementation Plan.

Background In July and September 2022, two serious post-operative surgical incidents in spinal surgery were reported in CHI at Temple Street. CHI commissioned serious incident investigations into these two incidents. Between September and November 2022, concerns about spinal surgery outcomes were also raised by members of the Spina Bifida Multi-Disciplinary Team “MDT” to their Clinical Director and to the CHI Chief Medical O cer. As a result of these incidents and the concerns raised, both an internal clinical review and a separate external clinical review were carried out.

Details of the Reviews An internal clinical review of surgical outcomes for spinal surgery in CHI at Temple Street was completed in May 2023 to look objectively at the frequency and severity of surgical complications, and gross indicators of outcomes in patients with Spina Bifida who have undergone complex spinal surgery at Temple Street between 2018 and 2022. Given the technical and specialist nature of the surgery involved and to bring clinical independence to the matter, the CHI Executive decided that an external clinical review be commissioned, to be undertaken by an independent international external review team. This would be of benefit in exploring the concerns being raised and identify any actions required to improve Spina Bifida spinal surgery services and outcomes. This external clinical review and Spinal Surgery Programme assessment commenced in March 2023. The findings and recommendations of the external peer review are fully incorporated into the CHI Report into Spinal Surgery for Patients with Spina Bifida in CHI at Temple Street. A review and summary of internationally published papers on post-operative surgical complications for a specific spinal surgery procedure, Kyphectomy, was used to provide a comparative basis for the outcome 16 the Parchment

data in CHI’s internal clinical review of spinal surgery outcomes between 2018 and 2022.

Findings from the Reviews It is universally acknowledged that complicated spinal surgery in patients with complex underlying conditions, as noted in this group of patients with Spina Bifida, has levels and types of risks associated with it due to the significant underlying condition of the patients and the complex surgery involved. The reviews’ findings specifically relating to post-operative complications support a number of the concerns raised by some of the Spina Bifida MDT members on postoperative complications.

Key Failings The key failings can be identified as follows 1. Unplanned return to surgery 2. Infections 3. Metal work complications

Analysis of Key Failings The analysis of the 1 case files showed that 13 of the 16 patients required further unplanned surgery. One of these patients who had multiple procedures unfortunately died. • The internal analysis showed that the overall infection rate for these 1 cases was 4 based on microbiology and clinical findings, while the overall rate of wound complication requiring further surgery was . of the cases had mechanical complications that required the removal of metal work.

Conclusion The report does not provide an explanation for the high complication rates. However, the report does set out numerous “best practices” and recommendations. Is it possible that these best practices were not carried out and that is what caused these major complications? It has been announced that a further external review will be conducted by a UK expert to address the wider issues raised. It is of key importance that this further review serves a purpose and gives unambiguous clarity on the outstanding concerns of patients, their families and the wider public. In summary, it is evident that there have been clear failings in the patients’ care. Specialised remedial surgery, if necessary, will be absolutely paramount to their needs. P

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You Don't Own me: AI and Copyright Artificial Intelligence AI generated works are a topic of widespread debate and speculation among legal professionals. Barry Scannell examines recent decisions by the US Copyright O ce USCO and US courts which mark significant developments in the realm of AI and copyright, and which give us some early glimpses into how the law in this area might develop

US Approach to AI Authorship In the United States, the question of authorship in the context of AI-generated works remains a contentious and largely unsettled area of law. Under U.S. copyright law, as stated in the Copyright Act of 19 , copyright protection is available to “original works of authorship fixed in any tangible medium of expression”, which encompasses literary, musical, and artistic works created by human authors. The law does not explicitly address the status of works created by artificial intelligence or other non-human entities. The USCO s stance is that it will register an original work of authorship only if it was created by a human being. This position was rea rmed in a recent update to the Compendium of U.S. Copyright O ce Practices, which explicitly states that the Copyright O ce will not register works produced by a machine or mere mechanical process that operates 18 the Parchment

randomly or automatically without any creative input or intervention from a human author. This essentially means that AI-generated works do not qualify for copyright protection under current U.S. law, leaving a legal void regarding the ownership and control of AI-generated content. The rapid evolution of AI technologies and their increasing role in content creation is pressuring legal systems worldwide, including the United States, to re-evaluate and potentially update copyright laws to address these new challenges.

The Kashtanova Case In September 2022, Kris Kashtanova submitted a graphic novel, arya of the Dawn, to the USCO to obtain a copyright registration, with Kashtanova as the author, and the registration was granted. On social media, Kashtanova said that Midjourney created the

Autumn 2023 dsba.ie Barry Scannell is a leading AI law expert in the Technology Group of William Fry

artwork for the novel, and a reporter queried this with the USCO, who wrote to Kashtanova and informed her that they would cancel the registration unless she was able to show that she authored all of the graphic novel. Kashtanova argued that the Work’s registration should not be cancelled because 1 she authored every aspect of the work, with Midjourney serving merely as an assistive tool, and 2 portions of the work are registrable because the text was authored by Kashtanova and the graphic novel is a copyrightable compilation due to her creative selection, coordination, and arrangement of the text and images. In its decision, the USCO referred to the US Supreme Court decision in Feist Publ’ns, Inc. v Rural Tel. Serv. Co, which explained that the term “original” in the copyright context consists of two components

IT Law

independent creation and su cient creativity. Firstly, the work must have been independently created by the author. Secondly, the work must possess su cient creativity. Only a “modicum of creativity” is necessary. The USCO refused to grant copyright registrations for the AI generated aspects of the Work, saying that the AI is not controlled by the user because “it is not possible to predict what Midjourney will create ahead of time”. They said that the AI generates images in an unpredictable way, and on that basis that Midjourney users are not the “authors” for copyright purposes of the images the technology generates.

AI-Generated Art and Copyright Registration This issue recently resurfaced in the USCO where copyright registration was sought for a picture generated by AI which won the 2022 Colorado the Parchment 19

IT Law

State Fair s annual fine art competition. Despite its acclaim, the USCO Appeal Board denied the copyright registration on the grounds of substantial AI involvement. The pivotal issue in the denial was the concept of authorship, a cornerstone in copyright law, emphasising human creation as a prerequisite for copyright protection. Despite Jason M. Allen s arguments highlighting his significant role in guiding the AI software, the USCO s decision emphasised the unpredictability and autonomy of the AI, aligning it more with a collaborator than a mere tool.

According to Section 21 of the Irish Copyright Act, where a work The Thaler Case: Reinforcing the Human Authorship Requirement is generated The recent federal-level US District Court decision in by a computer Thaler v The Register of Copyrights further reinforces the traditional stance on human authorship. Thaler s bid to with no have AI registered as the owner of the copyright was human author, unequivocally rejected, as the court rea rmed human authorship as a fundamental condition for copyright the “author” protection. Despite Thaler s assertions, the AI system’s is deemed to autonomous creation could not satisfy the requirement human involvement, cementing the position that be the person of copyright law primarily incentivises human creativity by whom the and expression. arrangements Implications for the Creative Industry necessary for These decisions send ripples across the creative uestions hover about the copyright the creation of industries. protection eligibility for works utilising AI technology, the computer- even partially. Despite arguments emphasising human skill and creativity in AI-generated art, the prevailing generated legal stance remains hesitant to confer copyright protections to such works. work are undertaken AI and Text and Data Mining: A New Frontier of Copyright Battles

Adding another layer to this complex scenario, the clash between AI platforms and rights-holders over text and data mining TDM emerges. Major news outlets, safeguarding their intellectual property, have restricted AI web crawlers like GPTBot from accessing their online content for TDM purposes. While AI entities argue for enhanced accuracy and safety through unrestricted web crawling, publishers highlight the necessity of robust copyright protection to safeguard their business models. In this context, the Irish commercial exception for TDM presents a noteworthy perspective. The legislation permits reproductions for TDM purposes, provided the author has not reserved these rights. Rights-holders utilise machine-readable reservations, like robots.txt files, to protect against unauthorised TDM, further accentuating the battle lines between AI and copyright protection. There are already a large number of class action lawsuits in the US seeking damages for copyright infringement against various AI companies. All of these are still in the early stages, and we will be following their progress eagerly.

The French Connection Meanwhile, a number of French legislators have proposed a bill with the intent to redefine the relationship between AI and copyright, paving the way for a more lucid legal structure. The bill covers aspects 20 the Parchment

from mandating licences or authorisation for using copyrighted works by AI, to stipulating that only the original authors or rights-holders can claim copyright for AI-generated works – albeit the practicality of this provision remains to be tested, particularly with the application of generative pre-trained transformers the eponymous GPT technology . The proposed legislation also calls for a clear declaration of AI involvement and crediting the original authors in AIgenerated works, despite the anticipated challenges in pinpointing the exact inspiring authors . Moreover, it introduces a taxation system for works created by AI from untraceable origins to ensure fair remuneration and proper rights management, emphasising the role of collective organisations. It will be interesting to see how the French legislature considers this proposal.

Irish AIs are Smiling Ireland’s approach to copyright for computergenerated works distinctly sets it apart from many other jurisdictions. According to Section 21 of the Irish Copyright Act, where a work is generated by a computer with no human author, the “author” is deemed to be the person by whom the arrangements necessary for the creation of the computer-generated work are undertaken. This provision essentially allows for copyright to be attributed to computer-generated works, acknowledging the role and effort of those who create the necessary arrangements for AI and computer-generated creations. This forward-thinking stance provides a legal framework for protecting the rights of individuals and entities involved in the creation of computer-generated works, acknowledging their creative input and the intellectual property inherent in these creations. This aspect of Ireland s copyright law might serve as a reference point for other countries that are grappling with the complex issues surrounding copyright and computer-generated or AI-generated works, including the aforementioned French proposal, and could contribute to the ongoing global dialogue and legislative efforts aimed at effectively and equitably managing copyright in the age of AI and advanced computer technology.

A Legal Landscape in Flux As the world delves deeper into the AI era, these pioneering cases and decisions signify the beginning of an intricate journey through uncharted legal territories. As legal professionals, staying abreast with these evolving scenarios is crucial for navigating the intricacies and ensuring comprehensive legal counsel in the realm of AI and copyright. Balancing the interests of human authors with the burgeoning role of AI in creative expressions and understanding the implications of emerging legislation and restrictions will shape the future contours of copyright law in the age of artificial intelligence. As this legal landscape continues to unfold, the role of lawyers will be central in interpreting, shaping, and applying these new norms, ensuring that the delicate balance between technological advancement and copyright protection is maintained. In the evolving narrative of AI and copyright, lawyers stand as pivotal actors, steering the course through the challenges and opportunities that lie ahead. P

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Probate – Who is Entitled to Arrange the Burial? Sadly, practitioners are increasingly faced with a dilemma in the form of disagreement between family members as to who has the right to arrange for the funeral and burial of their loved one. oe Hughes says that for a long time the legal position has been mired with uncertainty

n the recent judgment of A.B. v C.D. and E.F. 2023 IEHC 211, Ms. Justice Stack was faced with precisely this dilemma and the High Court was called on to determine a dispute between different family members as to who had the right to make funeral and burial arrangements. This was a very poignant case in which a schoolgirl took her own life. For most of her years, she was in the care of the Child and Family Agency, and she lived in a relative care placement with her aunt and her aunt’s husband. Following her tragic death, a difference of opinion arose between her birth parents and other family members as to where she should be buried. Her birth parents’ wish was for her to be buried in the town where they live and where her grandparents are buried. On the other hand, her sister, aunt and aunt’s husband wished for her to be buried in the town where she lived for most of her life so that they could visit her grave and so that her community and friends could attend her funeral and wake. The deceased’s sister made an application to the High Court pursuant to section 2 4 of the Succession Act, 19 seeking authority for her to make the funeral and burial arrangements. Interestingly, in her judgment Ms. Justice Stack noted that: “There appears to be no written decision in a comparable situation since independence, but it appears to have been well established prior to that that an executor has a duty to arrange for burial and is entitled to obtain possession

22 the Parchment

of the body of the deceased for that purpose.” Practitioners will be well aware that if the deceased made a will, their personal representative is the executor appointed by their will if one was in fact appointed . If they do not have a will or have a will but no executor is appointed, the next of kin may extract letters of administration in their estate and Order 79 of the Rules of the Superior Courts, rule 5, sets out the order of priority of who is entitled to extract letters of administration. Being a minor, the deceased did not have a will and therefore did not have an executor. Accordingly, the Court noted that under Order 9, rule 1 e , the natural parents of the deceased would be the persons entitled to extract letters of administration in priority to her siblings or other more distant family members. However, the Court also noted it has jurisdiction pursuant to section 2 4 of the Succession Act, 19 to order that administration be granted to persons other than those entitled under Order 9. Section 2 4 provides that: “Where by reason of any special circumstances it appears to the High Court (or, in a case within the jurisdiction of the Circuit Court, that Court) to be necessary or expedient to do so, the Court may order that administration be granted to such person as it thinks fit.” Accordingly, the Court was required to consider whether there were in fact “special circumstances” rendering it “necessary or expedient” for the deceased’s

Autumn 2023 dsba.ie Zoe Hughes is a solicitor at St. John Solicitors

sister to be permitted to extract letters of administration of the estate of the deceased, in preference to her birth parents who would ordinarily have priority. In coming to its determination, the Court considered a number of relevant factors: 1. For the circumstances to be su ciently “special” to engage the power under section 2 4 the making of the order must be more than a mere convenience; however, the circumstances did not have to be extraordinary or highly unusual. In this case, the Court was satisfied that the deceased’s circumstances, namely, not living with her parents since a very young age, could be regarded as special. 2. Whether the deceased had expressed any wishes as regards where they would like to be buried. Unsurprisingly, given her young age, the deceased in this case had not expressed any such wishes. 3. The wishes of family members. Acknowledging that the wishes of her birth parents are relevant, in the particular circumstances of this case, the Court gave priority to the wishes of the other family members with whom the deceased had lived most of her life. Having considered the particular circumstances of the case and the factors outlined above, the Court made an Order permitting the deceased’s sister to extract letters of administration rather than her birth parents. The Court limited this Order to the purposes of taking custody of the deceased’s body and arranging

Probate & Estates

the wake, funeral, and burial of the deceased, and the erection of a headstone for her. In her judgment, Ms. Justice Stack was clearly keen to impress on practitioners that the Court’s jurisdiction under section 2 4 should not be called on too lightly. Sounding a note of warning, the Judge reminded all who would read it that: “It hardly needs to be said that O. 9 provides a clear order of priority for family members which should, in general, be adequate to identify the persons entitled to make arrangements for a wake, funeral and or burial and I would echo the comments of the English judges in the cases cited to the effect that it would be hoped that applications such as this would be rare … the circumstances in which it would be appropriate to make such an application would be rare as Order 9 will almost inevitably provide sufficient clarity on this issue in cases where no executor has been appointed by a will, and s. 2 (4) should only be utilised where the dispute is a particularly serious one and of course it should be remembered that the court will not get involved in the making of arrangements, but only in identifying the person entitled to make those arrangements.” The circumstances of this case are, to say the very least, tragic. However, the High Court’s judgment has provided some welcome clarity which will hopefully help to avoid some disputes arising at times when families are already grieving. P

The Court gave priority to the wishes of the other family members with whom the deceased had lived most of her life

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The Might of McEntee One of the most important portfolios in Government is Justice. Kevin O’Higgins profiles Helen McEntee T.D., now over three years in that Ministerial hot seat, and meets her for a chat in County Meath

elen McEntee is a trailbla er. In 2013 she broke the mould in becoming the first successful candidate in 0 years to win a by-election succeeding her late father and at just 2 was the youngest female TD in that Dail. Since then, she has served as Minister of State in the Department of Health with responsibility for Mental Health, before being promoted to high-profile Minister for European Affairs. In Europe, her grasp of Brexit politics impressed many and it was no surprise when she ultimately attained a full cabinet post as Minster for Justice – one of the great portfolios of State and one in which the legal profession always takes a keen interest as it impacts upon how we function and operate more so than any other arm of Government. But how she got there was not preordained. This interview takes place in the historic and beautiful village of Slane in the Minister s home county of Meath. I had been awaiting her arrival expecting a Ministerial car and convoy to arrive in a fanfare, yet find her walking up the street to the hotel with neither Garda, civil servant, PR adviser or minder in tow! Hailing from obber in the northern part of Meath, her family were steeped in the GAA and farming. It is a rural area some distance from the commuter towns of 24 the Parchment

I spoke to the Taoiseach who encouraged me to take my time, have discussions with others, and look for a solution

avan, Ashbourne and Dunshaughlin. Her uncle Gerry had played for the county with distinction and the McEntee name was synonymous throughout the county with sport and agriculture. When former Taoiseach John Bruton retired from politics in 200 , Helen’s father Shane won the seat in the ensuing by-election. By this stage, Helen was starting in college where she studied Economics, Politics and Law and later on a Masters in Journalism and Media Communications. A stint in banking did not enthral, but by 2010 she changed tack and had joined her father’s political o ce in Leinster House. He was to become a Minister of State at the Department of Agriculture in 2011 but died tragically in December 2012. Cyber-bullying on social media was offered by media as a contributing factor but this has been discounted by his daughter Helen who put it down to undue work stress. She went on to hold his seat in the subsequent by-election in what was both an emotional and poignant time for both her family and herself. And so began her political career as an elected representative. In June 2020 she became Minister for Justice. Among highlights at that time was to steer through the Harassment, Harmful Communications Act which followed the death of a young girl who took her own life having been bullied on social media. The Act makes online harassment and the sharing of personal

Autumn 2023 dsba.ie Kevin O’Higgins is principal of Kevin O’Higgins Solicitors. He is a former President of both the Law Society and the DSBA. He is a former editor of the Parchment

Interview

the Parchment 25

I would always be prepared to assert my position, speak my mind and I think it of some importance to ensure that your voice is heard and to recognise that your view is as important as anyone else s images including revenge porn a criminal offence. Her hate speech legislation has hit a few speed bumps but may yet come through the legislative gateway in some form or other. But there are critics of that legislation, some with reasoned arguments and others engaging in political grandstanding. et even some in her own party have muttered that with a perception of crime being out of control in Dublin and other areas the bread and butter of the Justice brief should and ought to be more Gardai on the streets and less of the well-intentioned but problematic high-level legislation. When Helen and her husband announced that they were expecting their first child and that she would be availing of the equivalent maternity leave available to anyone else there was support for her across the political spectrum. et it was evident that a political conundrum had been detonated. As a serving current Government Minister, she would become the first such Minister to have a child while in O ce. The fact that she had indicated her intention to avail of maternity leave created a political dilemma but one that had to be resolved. This was achieved in an ad hoc way whereby she temporarily relinquished her portfolio for the duration of her maternity leave. Her O ce was assigned to Minister Humphreys until her return from leave. The exercise was then repeated 26 the Parchment

last December following the arrival of their second child until her return to her position in June of this year. et a blow had been struck for those in political life who have a child in o ce. Suitable arrangements needed to be found which would enable due and proper accommodation to be found and ensure that those seeking to avail of parental leave would not lose out. “I spoke to the Taoiseach who encouraged me to take my time, have discussions with others, and look for a solution. I saw parallels in the private sector and spoke to people there too where similar situations can arise.” ot only had she struck a victory for female politicians in the Oireachtas, but legislation is being considered for Local Authority members to enable them to maintain their political role in similar situations and ultimately it is expected that legislation will be passed to cover Oireachtas members also. Sitting with her for this interview in the tranquil village of Slane in Co Meath, I was conscious that this was also the day that she had taken some flak over the appalling assault in Talbot Street of the American tourist, and it had been on the airwaves all day with the lack of Gardai on the beat coming up again and again. I steered clear of that issue. She had enough on her plate without my adding to her woes.

I did, however, have a few issues to put to her as we set about our chat. I had spoken to a number of female colleagues and friends in advance. The common message I got back from them was how they viewed Helen McEntee as a role model and inspiration to them. Was there a grand plan, I enquired, to push the boundaries or had it just happened She claimed no great design. It was, she said, a gradual evolution where events determined what actions she then initiated. In the same vein I commented upon the fact that female solicitors are now numerically in the majority amongst our profession. Yet those attaining partnerships in firms remain disproportionate to their male colleagues. When you factor in the larger o ces of those attaining the gold bar of equity partner, the ratio, anecdotally, is minuscule. What advice, I ask, would she give to an ambitious young female colleague, in a firm particularly one of the larger o ces in Dublin as to how they might achieve parity “I don’t believe I was treated any differently. I would always be prepared to assert my position, speak my mind and I think it of some importance to ensure that your voice is heard and to recognise that your view is as important as anyone else s.” I was conscious too of the then pending strike by barristers and criminal practitioners. There is no doubt that she is sympathetic to the issue and plight of colleagues. She had said as much at the Bar of Ireland Dinner in July. “None of us,” she said, “want to see a situation where barristers feel the need to protest on the steps of the Criminal Courts of Justice.” She continued “I recognise the vital role played by barristers in undertaking criminal legal aid work.” And then the strong political message - “I see no good reason why those in the legal profession are left waiting for crisis-era reductions to be restored.” She confirmed that her sentiments as above apply equally to our own branch of the profession. Time will tell whether she has been successful in making the political case to those of her colleagues who pull the financial strings, and in particular, her party colleague Paschal Donohoe, the Minister for Public Expenditure. I was left with the impression of a formidable politician, on top of her brief, and determined to make her mark. Undoubtedly, she has been in a political maelstrom of sorts in recent months. Her brief is immense and certain areas of her responsibility have been put under the spotlight like never before. But she’s a Meath lady from obber, and a McEntee. They’re used to fighting battles and getting results on the sports fields and elsewhere. And she will too! P

Autumn 2023 dsba.ie Photography: Bryan Meade

Interview

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Company Valuation Paul Henry offers a brief introduction to some of the most used approaches and methods for the valuation of Irish companies

comprehensive and well-considered valuation is a useful tool in managing expectations when considering buying or selling a business, or simply giving a clearer understanding of a shareholding’s worth. aluations are subjective and can differ between practitioners and the approach used. The Revenue Commissioners also require a professional valuation in support of tax calculations around share issues, transfers, or re-organisations. A value of any business or company is usually determined by the future income flows that a shareholder can reasonably expect to receive from its ownership. The value of a public company can, at least in theory, be calculated by using the company’s market capitalisation. It is much more di cult to value a smaller private company with no open marketplace to purchase its shares. Valuation of a smaller private company is said to be an “art not a science” and two different valuers are likely to place two different values on such a company. However, while valuers will differ in opinions a professional will adhere to the core principles set out in the International Valuation Standards. Additionally, there are specific Irish legislative provisions, jurisprudence, and guidelines set out by the Irish Revenue Commissioners that relate to valuation, as well as valuation practices and conventions that have evolved in the Irish marketplace. Accordingly, there are generally accepted common approaches and methods. An approach is a theoretical framework in which a valuation is advanced a method is the way or process in which the valuation is executed. The three most common approaches to valuation are: 1. The Market approach. 2. The Income approach. 3. The Cost approach. A valuer, using one of the approaches above, will calculate the Enterprise Value of business and then adjust this to the Equity Value of the company. Enterprise Value represents the total value of a firm’s total value. Equity alue represents the value

28 the Parchment

that remains to the shareholders after any debts have been paid in full. It is also important to consider the stake being valued. Not all shareholdings are created equal and minority interests often carry unique challenges. The concept of “Minority Discounts” is introduced to reflect these challenges. The approaches are briefly explained below along with common valuation methods. We explore how Equity Value is bridged from Enterprise Value and also consider the impact of Minority Discounts on valuing a shareholding.

Market Approach This approach seeks to value an asset by reference to a similar asset for which price information is available. This approach is useful for a type of asset where the asset has been recently sold, the asset or similar assets are publicly traded or there are frequent transactions for similar assets and for which price information is available. The most common method of valuation used in the market approach is the comparable transactions method or Guideline Publicly Traded Comparable method whereby an indication of the value of the subject asset is arrived at by reference to market information, usually on relationships between profit measures such as Earnings Before Interest, Tax, Depreciation and Amortisation, or “EBITDA” and market value. So, for example, it might be appropriate to value a company at a x EBITDA multiple if a similar company sold for this multiple. Equally such a multiple might be appropriate if a similar company was quoted on the stock exchange and traded at a x EBITDA to Enterprise alue multiple. As implied from the above description this approach is useful for where there is public information available for a similar asset. However, in practice, it can be di cult to find relevant comparisons. There are currently less than 40 companies quoted on Euronext Dublin as against over a quarter of a million companies with a normal status registered with the CRO. Clearly, most transactions will involve private companies and reliable data on such transactions is not easy to come by. Even when a comparable transaction is identified it

Autumn 2023 dsba.ie Paul Henry is director of Business Advisory Services at Cooney Carey Chartered Accountants, Taxation and Business Advisors

will require considerable examination by the valuer to determine that it is truly relevant to the company being valued.

in assumptions can sometimes have big impacts on valuations. It requires a valuer of considerable skill to successfully apply the Income Approach.

The Cost Approach

Enterprise Value to Equity Value

The cost approach provides an indication of value using the economic principle that a buyer will pay no more for an asset than the cost to obtain an asset of equal utility, whether by purchase or by construction, unless undue time, inconvenience, risk, or other factors are involved. In practice the cost method sometimes used in a business valuation context is “net assets” this would capture the value of a business where the value is best represented by the sum of its individual assets and liabilities – e.g., if the business is an investment or a holding business. This approach does not tell us what the future earnings potential of the business is and would not be used on its own to value a trading company it can be used as a check to confirm if a business valued as a going concern might be more valuable on a liquidation basis.

Having used one of the approaches outlined above often complemented by a reasonableness check against an alternative approach the valuer will have arrived at an Enterprise Value. It is then necessary to adjust this for debt and surplus funds to calculate the value left to the shareholders or Equity Value. Surplus funds mean the assets not necessary to generate the future income flows valued in the Enterprise alue. A simple example of this might be an investment in a quoted company held by a private company that has no relevance to its trade. A more complex issue is around surplus or normalised working capital net current assets less cash . This can often be a contentious issue in a company sale and requires robust supporting calculations.

Income Approach The income approach converts future cash flows into a single valuation and as such is the purest approach. The most used method is the discounted cash flow “DCF” which involves discounting the future cash flows of the business back to a present value. Discounting is used to reflect the time value of money, which simply means that a euro today is worth more than a euro tomorrow because you can invest it today and start earning a return immediately. The discount rate used is usually the weighted average cost of capital meaning the average annual return an investor expects from an investment weighted with the cost of debt to the business. This method also requires detailed forecasts of the business’s expected performance over a number of years in order to calculate future cash flows. The income approach and DCF method is common in business valuations and is useful where there are few if any market comparables but it has limitations – discounting and future cash flows are heavily based upon assumptions and small changes

Minority Discounts Finally, the si e of the shareholding being valued must be taken into account and a minority discount applied. This recognises two distinct “drags” on a smaller shareholding: lack of control and lack of marketability. A minority shareholder cannot fully control the future conduct of the company and this impacts on the future incomes that the shareholder can reasonably expect to receive. Additionally, there is no readily available market for a minority shareholding in a private company in the same way that there is for a publicly quoted share. Revenue have issued guidelines for minority discounting in unquoted companies which range from 0 to a shareholding above to 0 for a shareholding of 2 and less.

Commercial

Valuation of a smaller private company is said to be an “art not a science” and two different valuers are likely to place two different values on such a company

Conclusion As can be seen from the above descriptions, no approach or method is foolproof; valuations are subjective and sensitive to assumptions. Valuation is very much an art and not a science – ultimately the professional judgement of an experienced practitioner is key in arriving at a reasonable conclusion. P the Parchment 29

A new era for Irish Competition Law The Competition Amendment Act 2022 “the Act” was signed into law on 29 June 2022, with the majority of its provisions commencing on 2 September 2023. Joanne Finn and Elaine Davis outline a new dawn in competition law

he Act implements the EC Directive “the Directive” and introduces fundamental changes to the Irish competition law landscape, notably ensuring that the Irish competition regulator, the Competition and Consumer Protection Commission “CCPC” , has su cient powers to carry out its functions in an effective manner. The Act goes beyond the requirements of the Directive in certain respects with an increase to the CCPC’s merger control powers, stronger enforcement mechanisms, streamlined investigation procedures and changes to penalties for breaches.

Merger Control The Act is characterised by a significant increase in the CCPC’s powers in the realm of merger control, with a more extensive and varied toolkit at its disposal. The most significant change brought about by the Act is the CCPC’s new power to “call-in” below-threshold transactions. This power may be used where the CCPC considers an unnotified transaction may “have an effect on competition in markets for goods or services in the State”. When making use of this power, the CCPC must notify the parties in writing within 0 working days after the earliest of the following dates a a party’s intention to make a public bid, b when the CCPC becomes aware of the parties entering into a binding agreement, or c the transaction being put into effect. The length of the period during which the CCPC can exercise this power is undoubtedly long and will result in uncertainty, especially considering the merging parties will not have any guarantee against further interference during this period. Another important change is the CCPC’s new power to impose interim measures in respect of certain mergers and acquisitions. The interim measures 30 the Parchment

envisaged may require parties to refrain from further implementing the transaction, to halt the disclosure of sensitive information, or to mitigate measures that have already been carried out. Criminal prosecution or si eable fines can be imposed on undertakings that fail to comply with such interim measures. Updates to the offence of “gun-jumping” have elevated the offence to a criminal one, where guilty parties can face a fine of up to 2 0,000, as well as an additional daily fine up to a maximum of 2 ,000. The extent of the CCPC’s power is evidenced by their new power to undo or dissolve already completed transactions where it determines it would result in a substantial lessening of competition in the State. The CCPC may also bring summary proceedings in the District Court for failure to notify a transaction or failure to respond to a request for information “RFI” , once more bypassing previous reliance on the Director of Public Prosecutions “DPP” to bring such proceedings. The power to issue compulsory RFIs to third parties to a notified transaction is also noteworthy, as this extension indicates the direction of travel in respect of CCPC powers.

Penalties The Act now empowers the CCPC to issue civil administrative fines for breaches of competition law, a change that is amongst the Act’s most significant. Allowing the imposition of fines of up to 10 million or 10 of an undertaking’s worldwide turnover provides the CCPC with much-needed flexibility and autonomy in enforcing competition law, particularly in relation to behaviours that may not attract criminal sanctions, yet still constitute infringements of competition law. It also removes the previous reliance of the competent authority on the DPP to bring criminal proceedings, sidestepping the backlog that

Autumn 2023 dsba.ie Joanne Finn is a partner and Elaine Davis is a senior associate in the EU, Competition and Regulated Markets team at DAC Beachcroft

Litigation

has built up in that o ce and allowing for dynamic and robust competition enforcement. However, this autonomy is not unlimited, as any civil fine imposed requires prior High Court approval, a crucial safeguard in light of the Constitutional fallout to the alewski judgment. On a separate yet related note, the Act considerably increases the fines that may be imposed by the Courts in criminal proceedings on the back of competition law infringements. From a previous maximum fine of million or 10 of annual turnover, the Act now sets out a maximum fine of 0 million or 20 of an undertaking’s turnover in the preceding financial year. The magnitude of this increase is more than a mere reflection of inflationary trends over a 20-year period, but instead signals a willingness by the legislature to crack down on serious competition law infringements.

Investigation The Act introduces a number of reforms giving additional investigative mechanisms to the competent authority. ew surveillance options are available to the CCPC, subject to judicial authorisation, that will allow it to monitor and record suspected participants in hardcore cartels. The previous statutory time limit of six years for initiating legal proceedings has been removed, which will greatly aid the CCPC in investigating and prosecuting competition law infringements, especially ones that cover a broad time frame. Directly reflecting the provisions of EC , the Act also introduces a graduated leniency programme, allowing the CCPC to grant immunity from, as well as a reduction of, any administrative financial sanctions to an undertaking that provides evidence of an infringement. If an undertaking fails to qualify for full immunity, leniency is available to reduce a financial sanction. A number of conditions must be fulfilled to qualify for leniency, including that the evidence offered provides “significant added value” to the evidence already in the authority’s possession. This programme should give the competent authority additional leverage in the investigation process. The CCPC has published various new guidance documents on its website, including on the interaction between the cartel immunity programme “CIP” and the administrative leniency policy “ALP” to provide undertakings with guidance on how the CCPC will deal with situations when applications are made to it under both the CIP and the ALP.

Enforcement Procedures In addition to the enhanced penalties for infringement, the Act details new procedures for enforcement. Following an investigation and prior to a fine being imposed, the CCPC may issue a Statement of Objections an “SO” to outline its initial views of the alleged breach and provide an opportunity to the undertaking to submit a written response. The CCPC may choose to continue or close the investigation on the foot of the SO, but the process also provides the opportunity to agree legally binding commitments with the undertaking s in question, or to refer the matter to an adjudication o cer “AO” . The position of an AO is another innovation of the Act. The primary purpose of this role is to

seek to come to a conclusion, on the balance of probabilities, whether or not there has been a breach of competition law. In coming to this conclusion, AOs can arrange for further submissions or hearings and are empowered with the same privileges, powers and rights of a High Court judge in civil proceedings. This new process is inherently adversarial and is likely to lead to more extensive use of legal resources. Among the most important powers available to an AO is the imposition of periodic penalty payments. During investigations, an AO may order these payments to compel an undertaking to comply with an authorised search, to provide complete and correct information or to attend an interview or hearing. These payments shall not exceed of the average daily worldwide total turnover of the relevant undertaking in the preceding financial year. These payments that can be levied during the course of an investigation speaks to the comprehensive manner in which enforcement has been enhanced.

Conclusion Assessing the changes brought about by the Act in light of the increased scrutiny of transactions by the CCPC in recent months, as evidenced by the blocking of Uniphar’s acquisition of aviCorp last year, it can be argued that a new era of competition law enforcement is upon us. The commencement of these provisions and the exercise of these powers could result in a flurry of competition law activity over the coming months and years. Considering the changes outlined above, increased vigilance by market actors is wise, as well as an abundance of caution when deciding whether to notify a transaction to the CCPC. P

Allowing the imposition of fines of up to 10 million or 10 of an undertaking’s worldwide turnover provides the CCPC with much needed flexibility and autonomy in enforcing competition law

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News

Law Society Election October is election time for the Law Society Council and the Parchment is supporting all Dublin-based candidates by publishing their candidature in the upcoming election

he following are the Dublin-based candidates for election to the Law Society Council 2023/2024:

Philip Andrew – McCann Fitzgerald Justine Carty – Tailte Eireann

Hilary O’Connor – Orlaith J. Byrne

Co.

Colm O’Shaughnessy – OSBROS Solicitors Valerie Peart – Pearts Solicitors eith Walsh – eith Walsh Solicitors

Niamh Counihan – Matheson

Susan Martin – Martin Solicitors

There are other candidates running for election who are based outside of the Capital and therefore we have not featured them here. Your voting ballots must be returned to the Law Society no later than the 2nd November 2023. As this is the Parchment, we cannot let the occasion pass without a special mention for former DSBA President Keith Walsh and current DSBA President Susan Martin. There is an excellent field of candidates to choose from in this year’s Law Society Elections. Make up your own mind, support the DSBA and the Dublin candidates and ensure that you vote. P

Keith Walsh

Justine Carty

Paul Egan SC – Mason Hayes

Curran

Donal Hamilton – McCann Fitzgerald Paul eane – Reddy Charlton Graham enny – Eversheds Sutherland Gary ee – Office of the General Solicitor for Minors and Wards of Court

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Muiris O’Ceidigh – National Milk Agency

Susan Martin

Valerie Peart

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Autumn 2023 dsba.ie John Geary is the editor of the Parchment and principal of J.V. Geary Solicitors

Interview

Heir Apparent Parchment editor John Geary meets up with Erin International Chief Executive Padraic Grennan who has rolled out quite an offering to solicitors including a “Probate Pre-Check” service, tracing missing beneficiaries and Section 49 reports for adverse possession cases

ou might have caught some headlines over the past year or two about long-lost relatives of deceased people who ended up in the news for one reason or another, being tracked down and connected to the deceased. One such case was the tragic death of a reclusive elderly couple who were found dead in County Tipperary having been last seen alive some 18 months before, and leaving assets behind worth hundreds of thousands. It appeared from early reports that the couple did not have any close family or relatives. Step forward Padraic Grennan of Erin International who tracked down the next of kin and was able to assist the authorities re-connect members of the family involved. Padraic explains that he kept seeing the tragic story of Mr. and Mrs. Smith on the news and in the papers and that an appeal had gone out looking for the next of kin. “It had gone to Interpol and the Gardai, and nobody was coming forward. That’s when we started to do the research. Our core service offering is tracing missing beneficiaries and next of kin to estates, so I knew we could help. We had the couple’s names and were able to figure out through a little bit of research and then through some trial and error who they were.” He explains that as part of their general everyday research in such cases, he and his

I drifted between jobs and did loads of different types of work including working in the insurance industry and even time on a fishing trawler!

team obtain birth and death certificates from England or whatever country is necessary. “We might have to order say 20 certificates for each person’s name and carefully go through them all to narrow the search. So, there is an element of trial and error, and it can be a costly exercise. We did this for the Tipperary couple and lo and behold, we found a brother of Mr. Smith and a son of Mrs. Smith from a previous relationship.” Another high-profile case that Padraic and Erin International assisted on was that of an Irishman named John Gill who died in Birmingham. “Mr. Gill was in a morgue over there and there was no next of kin coming forward to bury him, so Birmingham City Council put out an appeal. They had very limited information. His date of birth was wrong, and they had the wrong county of birth – Roscommon instead of Westmeath. But we figured it out and picked up the scent. We found the next of kin and then they were able to verify everything. We can connect people and fill in the missing links.” Padraic and his company Erin International have been quietly making an impact on the solicitors’ legal profession over the past three years. The secret is an open one – free CPDs! I met him in Castlebar after he brought his Probate Applications Masterclass to the west. Son of a Garda Sergeant and a music teacher, Padraic was born and bred in Drogheda and attended the Franciscan College at Gormanstown for his secondary schooling. “I went to UCD, but it didn’t last long. I didn’t like it. I drifted between jobs and did loads of different types the Parchment 35

the chain of representation of the successors and provide verified names and addresses so that notice can be served. “Sometimes there can be three or four generations involved, so you are following that chain. That’s what we do. It’s interesting work. My colleague Stephen Pierse joined the team at Erin International last year and he has 15 years’ experience doing these types of cases. He is our Head of Research – a very knowledgeable man and brilliant with those cases. He is Ireland’s leading Section 49 guy!”

Lost Land

If they were going out and looking at all the lost land, for want of a better phrase, there is a lot of money to be claimed for the State there of work including working in the insurance industry and even time on a fishing trawler! In 2007, I was very fortunate to have started working with a solicitors practice in Ballsbridge and came to work under Malcolm Fraser at Hussey Fraser. Malcolm sadly passed away recently, but he was a great mentor to me back then and gave me a taste for business because he took me under his wing, and I think he saw something in me. I had good experience in the insurance industry and Malcolm had a very busy personal injury litigation practice. Hussey Fraser dealt a lot with insurance companies – that was my ‘in’ and that’s how I first began working with solicitors.” It was some years later before Padraic commenced working with an English-based company who were in the business of tracing and finding beneficiaries. “Eventually, I decided that I wanted to go out on my own and not be an employee. I wanted to do my own thing. So, I ended up setting up in 2018 as Erin Research, which we rebranded as Erin International earlier this year. In the early days, I set up a website called emptyhomes. ie which we still have, and people report empty houses to us which we research. There are various types of cases, some are unclaimed estates, some are owned by the banks. The idea is that we try and have those properties brought back into use, so we are quite adept at researching vacant properties and lands too.” 36 the Parchment

Section 49 Research One of the lines of work that Padraic says Erin International does is working with Local Authorities who might be looking to CPO a derelict or empty property and they want to find out who the owners are. “We do that work for councils. A lot of concerned citizens report a property that they know of in their local community, and we would look at these also. Research on a derelict or abandoned property begins with property searches at either the Land Registry (Tailte Eireann now) or the Valuations Office and then on to the Registry of Deeds.” In the context of adverse possession I asked him if he was aware of any professional squatters out there? “I haven’t come across it, but I believe there are. We do a lot of Section 49 research for solicitors. Tailte Eireann often push back saying that efforts must be made to serve notice on the registered owners but they might be deceased and there is a tracing process that must then be done. You could have a name on a Folio from 1945 and somebody is claiming adverse possession but that’s not enough for Tailte. They want to find the successors in title of that individual to serve notice on them to say there is an adverse possession claim. Solicitors are not proactively doing this before the Section 49 application is submitted. They make the application on behalf of their client and then wait for queries to arise. This is where we come in and we do a report that satisfies Tailte. We follow

During the interview, we discussed how much land is out there that might still be owned by dead people. “There is a lot of land out there that’s almost forgotten – not the land where Tommie died two years ago, and the family haven’t got around to do the Probate. I will give you an example of a case down in Co. Wexford. It was reported to us on emptyhomes.ie. We looked at it at the start of Covid and discovered that the owner had died, and it didn’t look like he had any family. So then when we got into it, we realised that there was a second plot of land in his father’s name. Then when we got into it further, there was a plot of land in his mother’s aunt’s name. When we retrieved the aunt’s will, she had left it to his mother, so this gentleman was the only child and there are three plots of land there and an estate that was lying unadministered. So that case is still ongoing, it’s going through Probate now but that will give you an example of what can be just sitting there.”

The State We talk about what happens with land and property when there is no next of kin and how the State becomes the ultimate intestate successor. “While there is legislation in place to deal with some unclaimed assets and dormant accounts in Ireland, the State is not proactive when it comes to the escheatment of bricks and mortar, like they are in the United States for example. If they were going out and looking at all the lost land, for want of a better phrase, there is a lot of money to be claimed for the State there. We do a lot of work for companies in the United States in terms of unclaimed property. I am a member of “UPPO” – the Unclaimed Professional Property Organisation in the US, and go to their Annual Conference each year. It’s been very interesting for me to gain an understanding of the way things are done in the US. We act as Irish and UK agent for US companies that specialise in asset recovery. A lot of cases involve Irish people who went over to the US, died there and left money in a bank account or had shares where they were employed. These unclaimed assets are then escheated to the State over time. There is a very mature unclaimed property programme in the United States, and Ireland could learn a lot from

Autumn 2023 dsba.ie

Interview

Photography: Bryan Meade

their escheatment processes. That’s a whole other conversation.”

Small Acorns do Grow Having set up Erin from scratch in 2018, Padraic recalls one of the first things he did was sending out a mail shoot to 2,000 solicitors. “I got a brochure designed and sent it out saying that I was open for business and look, these are the services I can offer you. Nobody replied!” Business slowly but steadily grew, and he thought that running a webinar programme during Covid was a good way of connecting with solicitors whilst at the same time offering CPD and educational talks. “I invested in the webinar software and learned how to do everything. The first webinar was July 2020 and I think about 350 solicitors were online. I have done about 50-60 webinars since. They have been a tremendous success with solicitors from all over Ireland attending regularly. The goodwill out there is phenomenal and I think people appreciate the value we offer.” As his business grew, Padraic’s partner barrister Aifric Hurrell joined him and the team at Erin International. “Aifric worked for the Courts Service for many years in the District Court – in Naas and then at the CCJ before studying at the Bar and qualifying in 2015. She devilled with Luigi Rea and was planning to specialise in criminal law work and from day one, she was on her feet, as they say.” The couple have four children, including their daughter Erin, whose name was incorporated into the name of his then-fledging business when she was born. Today, Erin International has grown to a team of 11, with three people in the UK. “We have two teams effectively. We have Genealogists and we have Tracers, and they have different skillsets. The Genealogists spend 90% doing genealogy and 10% tracing. The tracers spend 90% of their time trying to find people, and sometimes need to do some genealogy. We have had cases where we have had the wrong name and the wrong date of birth, but we somehow managed to find the right people. We have a great team.”

Caroline McCall will check the papers to make sure that there are no errors, and we return the application to you with recommendations and the amendments you may need to make for your papers to be accepted on the first submission. The whole idea is to eliminate the waiting times and high rejection rate. They say that some 60% of Probate applications are rejected. We want to step in there and assist. That’s what we have been doing. The problem in Dublin is that you will wait five months before you get notice that your papers have failed or there is a query. “Caroline worked in the Seat Office and the High Court Probate Office for 20 years plus. She retired out of there a couple of years ago and given the difficulties that practitioners were facing around Probate applications, I saw an opportunity. I did not have the experience or skillset myself, but I knew Caroline did, and thankfully managed to convince here to come on board the Erin International team. Caroline checks all applications, and we turn around those applications within a few days. It’s all done online. The solicitor uploads the Probate application and accompanying paperwork to our secure portal website at erininternational.com. There is a button on the home page called Probate Check. You submit there, you fill out the form, you select the check required and the price. We then send a report to the solicitor in PDF format with the recommendations in black and white saying, do this, this, and this. We have automated a lot of this process to keep the costs down. The only manual aspect is the checking that Caroline does. We do not draft title, we merely make recommendations as to what needs to be amended in order for the application to be successful.” Padraic extols the benefits of such a personalised service and says that solicitors that Erin are helping are seeing the benefit

of earlier Grants. He admits that the process is greatly reducing Probate queries from arising and results in solicitors getting their fees paid much quicker once the Grant comes in the Estate is distributed.

Further Strings to the Bow With the introduction of new Solicitors Accounts Regulations on the 1st of July 2023, Erin Research are working with solicitors on unclaimed balances. “Scenarios often arise where clients can have moved or can no longer be contacted, and the solicitor might be holding a balance of monies on a sale of a property, from an estate or whatever it was. Regardless of the amount, we are helping solicitors with that work. Even small sums – just to clear them out so our clients can be compliant with the new legislation. We often do this type of work as a goodwill gesture.” Another service that Padraic offers is an Administrators Search. “Picture a scenario, your client dies, they have no next of kin. There is nobody to take instructions from, so the estate is in limbo. What we do in these circumstances is, we fund all the research, we buy all the certificates at our own risk in the hope that we will find the next of kin, who then sign a commission fee agreement with us. We introduce that person to the solicitor as their client and then they take instructions from that person who is willing to act as an administrator. It's a practical solution that allows the estate to progress.” As our meeting draws to an end, I cannot help but be impressed by Padraic and his energy and enthusiasm for what he does. “It’s very rarely we don’t find people. It does happen though and I have found that if we get a negative result, it’s generally because people don’t want to be found.” P

Probate Pre-Check I ask Padraic if he ever thought about getting into investigations or serving summonses, especially as this is down to tracing and tracking and his personal injury litigation background and experience would lend itself to this line of work. “No, I am happy in the lane we’re in. I think what we do is quite specialist.” However, he does tell me about a new service that Erin International is offering solicitors and since it launched this time last year, it has been proving popular with probate practitioners. “It’s called a Probate Pre-check. So, prior to submission of your Probate papers, my colleague the Parchment 37

First Judgment on Data Breach Damages Gail ohilly, David Cullen, Adele Hall and Rachel Hayes assess a significant decision of the Circuit Court in a recent data breach case. It is the first written judgment from the Irish courts under section 11 of the Data Protection Act, 2018

t Dublin Circuit Court, Judge John O’Connor awarded a plaintiff 2,000 compensation for non-material damage arising from a breach of rights under the Data Protection Act, 2018 “the 2018 Act” . It is significant as it applies the decision in UI v Osterreichische Post C-300 21, (Osterreichische Post), in which the CJEU set the test for non-material damages under the GDPR. Under Article 82 1 GDPR and Section 11 of the 2018 Act, a person that suffers material or non-material damage because of an infringement of their data protection rights can seek compensation from the controller of the data for damage suffered.

Facts The plaintiff was employed as a supervisor at the defendant’s factory. He alleged that the use of CCT footage by the defendant in a demonstration of work practice shown to other supervisors and managers constituted unlawful processing of his personal data under the 2018 Act and the GDPR. The defendant accepted that the plaintiff was identifiable on the CCT footage. The plaintiff learned of the footage from his colleagues. For two weeks after the demonstration, the CCT was stored on a communal computer, without password protection, although there was no evidence that unauthorised persons accessed the CCT . The plaintiff claimed the use of the CCT was an unlawful processing of his data and alleged that he suffered damage and distress, namely anxiety and embarrassment, because of subsequent remarks made by colleagues. 38 the Parchment

The plaintiff complained to the Data Protection Commissioner DPC but due to backlogs in the DPC o ce, the complaint was not assigned a complaint handler. The plaintiff did not wish to delay his case by awaiting the DPC outcome and initiated these proceedings before the Circuit Court. Issues were raised about the defendant’s data protection policy governing the use of CCT . The defendant had four different CCT policies, available only in English at the relevant times, governing the use of CCT . Only one of the policies expressly referred to using CCT footage for training purposes.

Judgment The Court noted the inherent di culty in private actions to enforce data protection rights is the calculation of non-material or non-pecuniary loss. In the absence of clarity on pending CJEU preliminary references, the Oireachtas, and the Irish superior courts, and applying the Osterreichische Post test, Judge O’Connor cautiously set out the following list of factors relevant in ascertaining damages for nonmaterial loss under the GDPR and 2018 Act 1. A “mere breach” or mere violation of the GDPR is not su cient to warrant an award of compensation. 2. o minimum threshold of seriousness is required for a claim for non-material damage. However, compensation for non-material damage does not cover “mere upset”. 3. There must be a link between the infringement and the damages claimed. 4. If the damage is non-material, it must be genuine, not speculative.

Autumn 2023 dsba.ie David Cullen is a partner in William Fry’s Technology Group. Gail Nohilly, Rachel Hayes and Adele Hall are senior associates at William Fry in the Litigation and Investigations Department

. Damages must be proved. Supporting evidence is strongly desirable. . Data protection policies should be clear and transparent, and accessible by all parties affected. . Employers should ensure privacy notices and CCT policies are clear to employees. See our article on the use of CCT footage in disciplinary proceedings in McVann v Data Protection Commissioner 2023 IECC 3 on williamfry.com. 8. Where a personal data breach occurs, it may be necessary to ascertain what steps the relevant parties took to minimise the risk of harm from the breach. 9. An apology, where appropriate, may be considered in the mitigation of damages. Delay in dealing with a data breach by either party is a relevant factor in assessing damages. A claim for legal costs may be affected by these factors. 10. Even where non-material damage can be proved and is not trivial, damages will probably be modest. The Court noted the lack of clarity in the defendant’s data protection policies and the lawfulness of the processing of the data for training purposes. It found that there was a breach of the plaintiff ’s rights under the GDPR which resulted in non-material damage to the plaintiff.

Assessment of Compensation The plaintiff gave evidence of the effect of the personal data breach on him. In circumstances where the Court found him to be a truthful witness, the absence of a supporting medical report was not fatal to his claim.

In assessing compensation, the Court had regard to the factors in the Judicial Council Personal Injuries Guidelines 2021 in respect of the category of minor psychiatric damages as “instructive guidance”. Accordingly, compensation was assessed at 2,000.

Watch this Space There are preliminary references before the CJEU on the application of Article 82 of the GDPR, which should provide further clarity on the assessment of non-material damages in data protection claims. In the meantime, this judgment, for the first time in Ireland, offers long-awaited guidance in relation to compensation for nonmaterial damages. Of note is Judge O’Connor’s remark that damages will most likely be modest in such claims. This coincides with the recent signing into law of the Courts and Civil Law Miscellaneous Provisions Act 2023, which amends the 2018 Act, giving the District Court jurisdiction to hear and determine data protection actions. Once commenced, it is likely that most data protection claims will proceed in the District Court, with lower legal costs for affected parties. One final point of note from Judge O’Connor’s decision relates to his obiter comments about a preference for alternative dispute mechanisms to resolve personal data breach assessments. This would be welcome, although unlikely in the immediate future, given the expansion of the concurrent jurisdiction for data protection claims to the District Court. P

Data / Litigation

It is likely that most data protection claims will proceed in the District Court, with lower legal costs for affected parties

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Personal Injury Guidelines Update The Personal Injury Guidelines “the Guidelines” came into operation on 24 April 2021, with the intention of achieving greater consistency in awards for varying types of personal injury. Given that the introduction of the Guidelines is still relatively recent, Elaine Healy and Lorna Kennedy assess the Guidelines’ operation in practice and their overall impact to date

Constitutionality of the Guidelines A constitutional challenge to the implementation of the Guidelines was made in Delaney v Personal Injuries Assessment Board Ors 2022 IEHC 32. The plaintiff injured her ankle and knee as a result of a fall on a footpath. On 21 May 2021, PIAB awarded her general damages of 3,000 pursuant to the Guidelines. It was argued that if the Book of uantum which had been replaced by the Guidelines only weeks earlier had applied, an award in the region of 18,000 34,000 was likely. The constitutional challenge was rejected by the High Court who noted that while the plaintiff had a right to have her damages assessed in accordance with well-established legal principles, there was no constitutional right that entitled her to a particular sum of money. The effect of the application of these principles is that the level of damages changes over time. It also held that the Guidelines did not encroach on judicial independence as the courts have discretion to depart from them pursuant to section 99 of the Judicial Act, 2019. 40 the Parchment

The judgment was appealed to the Supreme Court, who agreed that the case involved issues of importance that warranted a direct appeal to that court. A decision on the appeal is awaited.

The Guidelines before the Courts While the Guidelines did appear to initially have a stark effect on the rate of acceptance of PIAB assessments, by June 2022 the acceptance rate had climbed to 48 , as compared with a 1 acceptance rate in 2020, before the Guidelines were introduced. It is not clear, therefore, if there will be a trend for more cases to be litigated before the courts. In McDonnell v Upton Foods imited 2022 IEHC 6 0 the plaintiff ’s car was struck by a van driven by the defendant’s employee, and he suffered a tear to the rotator cuff in his right shoulder. The plaintiff also claimed to have suffered an adjustment disorder and depression following the accident. He underwent surgery, was unfit for work for a period of three months after the operation and continued

Autumn 2023 dsba.ie Elaine Healy and Lorna Kennedy are both partners in Litigation and Dispute Resolution at Dillon Eustace

to suffer symptoms and reduced mobility, although with improvements over time. The plaintiff argued that the injury came within the serious category of the relevant shoulder injury, with persisting symptoms notwithstanding surgery. This category had a range of damages of between 40,000,000 and the plaintiff argued that 0,000 was an appropriate award. The defendant argued a figure of between 3 ,000- 40,000 was an appropriate sum for damages with reference to the Guidelines. The court was satisfied that the plaintiff suffered considerable pain in his shoulder, which had been largely but not completely alleviated by the surgical operation. The court assessed general damages for the shoulder injury at ,000. A 20,000 uplift was given in respect of psychiatric injuries suffered on account of the accident.

Multi Injury Cases The Guidelines set out an approach for assessing damages in multiple injury cases which involves identifying the most significant injury, and the

Personal Injury Litigation

appropriate bracket, and thereafter applying an uplift’ to the award to take account of lesser injuries. A number of recent decisions have considered the operation of such an uplift in practice. Dillon Eustace acted in the High Court action ipinski (a Minor) v Whelan 2022 IEHC 452, in which the court noted that the Guidelines set out the procedure or roadmap that a trial judge must have regard to when considering the effect of multiple injuries on the level of damages to be awarded. The trial judge, when considering an uplift, should ensure that the plaintiff is fairly and justly compensated for all of the effects of the lesser injuries in order to arrive at an overall award that is proportionate and just. The case involved a schoolgirl who was injured in an accident and where it was agreed that a psychological injury of PTSD was the dominant injury. It was held to be at the top end of the moderate damages bracket and accorded a value of 3 ,000 counsel for the plaintiff had contended that the award should be between 40,000 - 0,000 . The court considered what the Parchment 41

Personal Injury Litigation

The judgment considered the approach of the courts in considering an uplift in multiple injury matters and it noted that the plaintiff is entitled to be compensated for all the suffering they have endured, be it from one or ten discrete uplift should then apply in respect of other injuries, ultimately awarding 2 ,000 for the balance of injuries, injuries which included a linear abrasion on the back of her suffered at the thigh, multiple minor soft tissue injuries and a minor abrasion on her left shin. same time In the High Court decision of McHugh v. Ferol 2023 IEHC 132 the court noted that there was no reason that any uplift could not exceed the value of the dominant injury and it favoured an approach whereby each of the additional injuries would be categorised according to the bracket that it would fall into were that the main injury and then discounted to allow for the temporal overlap of injuries. In that case, the value of the dominant injury was assessed at 0,000, with a value of each of the additional and lesser injuries totalling ,000. The court considered a discount of 0 , an award of 32, 00, would be fair and just compensation for the additional injuries. A September 2023 Court of Appeal judgment in aganczyk v John Pettit Wexford Unlimited Company anor 2023 IECA 223 involved an appeal against a High Court assessment of damages, pursuant to the Guidelines, of 90,000 for the plaintiff, who suffered injuries when a gas oven exploded at her workplace resulting in burn injuries to her face, neck and arm hand. In addition, she suffered psychological injuries and PTSD was agreed by the parties to be the dominant injury. The court noted that comparable cases should attract comparable awards to allow for the required proportionality, consistency and predictability. The judgment considered the approach of the courts in considering an uplift in multiple injury matters and it noted that the plaintiff is entitled to be compensated for all the suffering they have endured, be it from one or ten discrete injuries suffered at the same time.

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Of note, the Court of Appeal also stated that the approach of the High Court in the McHugh case, in terms of calculating the uplift, “has much to commend it”. It also discussed the merits of a trial judge carrying out a useful exercise of considering how the overall award compares with other individual categories in the Guidelines and if an obvious mismatch emerges, it suggests that the requisite proportionality has not been achieved. In other words, such an exercise can provide a helpful “reality check”. In terms of the case itself, the Court of Appeal held that it was questionable if there was justification for the High Court approach of ascribing one figure to the plaintiff ’s PTSD and then a separate figure for her alcohol abuse disorder and depression. It further held that the High Court erred in treating the PTSD as ‘serious’. The Court of Appeal held that a cumulative award for psychiatric injury of ,000 clearly offended the doctrine of proportionality and was out of kilter with the award in the Lipinski decision and awards under the Guidelines. In terms of applying the aforesaid reality check to consider the proportionality of a 90,000 general damages award, it was noted, amongst other examples, that significant permanent disability attracts damages in the range of 0,000 to 100,000. The court was satisfied that the award by the High Court was disproportionate to a degree that rendered it an error of the law and the award was reduced to 0,000.

Conclusion It is clear that the position with awards for general damages under the Guidelines is still not fully settled, so that future judicial interpretation of the Guidelines and the decision of the Supreme Court in the Delaney case are keenly awaited. P

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01/07/2015 15:01

Discharge from Wardship Registrar of Wards of Court Alice White sets out the discharge process under the Assisted Decision-Making Capacity Act “the Act” which commenced in April of this year

he Wards of Court O ce has been preparing for commencement of the Act for a number of years. Change is never easy and to assist with preparations the o ce launched a communications campaign, in September 2021, aimed towards committees and Wards of Court to raise awareness of the Act and prepare those we engage with for the changes to come. While the o ce is committed to continuing to deliver its current standard of service to existing customers, it is now also focusing on ensuring it complies with its statutory requirement to discharge all adult Wards of Court within the three-year time frame. Each discharge application will result in the Wardship Court making a declaration under S. 1 of the Act to Declare that the person does not lack capacity resulting in the person being discharged or discharged with a decision-making assistant. Declare that the person lacks capacity unless the assistance of a suitable person as co-decision-maker is available. Declare that the person lacks capacity even with the assistance of a co-decision-maker resulting in the appointment of a decision-making representative. Practitioners should be familiar with the guiding principles of the Act contained in Section 8 of the Act.

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The Discharge Process The discharge application and process is provided for in Order A of the Rules of the Superior Court SI 2 1 of 2023 and High Court Practice Direction HC 120. The discharge process begins when a Notice of Motion, seeking reliefs to discharge the Ward of Court, is lodged in the Wards of Court O ce – please see S. 1 and S. A of the Act. The motion will not issue at this point; lodging it in the Wards of Court O ce will trigger the o ce requesting a functional capacity assessment to be carried out by one of the Court’s Medical isitors. The notice of motion should identify, where possible, the Circuit in which future applications and reviews will take place under the Act. Practitioners should determine if the applicant is entitled to apply or if the consent of the Court is required – S. 4 1 , as amended by Assisted DecisionMaking Capacity Amendment Act 2022. It is important to establish the will and preference of the Ward of Court and contact with service providers or the National Advocacy Service could assist with this; this is especially important if the applicant is not the committee. On receipt of the functional capacity report the Wards of Court O ce will Prepare a note on the property and assets of the person as known to the o ce . Copy documents from our file o Any relevant Court Orders o Any relevant medical reports.

Autumn 2023 dsba.ie Alice White is Registrar of Wards of Court

• Send the copy documents and functional capacity assessment with service instructions to the solicitor. If the applicant committee Ward of Court disagrees with the functional capacity assessment, they may obtain their own report assessment from a consultant psychiatrist. A davits of Service of the above documents on the committee and Ward of Court should be filed in the o ce with the grounding a davit. If the committee is the applicant, they do not need to be served. Service is by means of personal service. The grounding a davit is sworn by the applicant and shall set out the will and preference of the Ward of Court, as referenced in S. 8 b and c of the Act, and any other relevant information communicated to the applicant or solicitor. The grounding a davit should identify who the Ward of Court wants to act in assisting them to make decisions. It is advisable to ensure that a bank account is opened in the name of the Ward at this stage to facilitate funds lodged in Court being paid out this does not necessarily apply if a decision-making representative is appointed . Once the grounding a davit and the required exhibits see Practice Direction HC 120 are lodged in the o ce the motion will issue with a return date for the discharge hearing. A davit of service of the notice of motion is lodged – this will record any response or reaction of the Ward of Court. • The discharge hearing can be in person or a hybrid

Mental Health

hearing with consideration to the participation of the Ward of Court in the proceedings as provided for in the guiding principles of the Act, S. 8 a fully remote hearings will also be available.

General Information Practice Direction HC 120 provides further information around the exhibits required depending on the tier of decision support identified through the functional capacity assessment. All applications are to be accompanied by a completed WOC 2’ form this is available on the Courts Service website with the Practice Direction HC 120. Booklets are to be lodged two weeks in advance of the hearing date. Depending on the tier of decision support, the co-decision-making agreement or the decision-making representative order must be registered with the Decision Support Service prior to funds being paid out of Court. Guidance documents in relation to decision support agreements and sample outlines of these agreements are available on the Decision Support Service website. The Wards of Court O ce can also provide information to solicitors in relation to specific queries regarding discharge applications. Some useful websites include www.Courts.ie office-Wards-Court www.decisionsupportservice.ie www.assisteddecisionmaking.ie P

It is important to establish the will and preference of the Ward of Court and contact with service providers or the National Advocacy Service could assist with this

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Pat Nyhan is a partner in the Banking and Finance team at Beauchamps

Probate/Litigation

Claims Against a Deceased’s Estate Limitation periods set out time within which legal proceedings must be issued. Pat Nyhan examines the position with regard to deceased persons and their estates Civil Liability Act

Given the short limitation period set out in section 9 2 of the Civil Liability Act, 19 1, lenders should always pay particular attention to limitation periods in the case of deceased borrowers 46 the Parchment

In the case of deceased persons, regard must be had to section 9 2 of the Civil Liability Act, 19 1. Section 9 2 provides that no proceedings which have survived against the estate of a deceased person shall be maintainable unless proceedings had been issued within the relevant period’ and were pending at the date of death or, if the person predeceases the action, were commenced within the relevant period’ meaning the period of limitation prescribed by the Statute of Limitations or any other limitation enactment or within the period of two years after the date of death, whichever period first expired. The key issue to be determined is whether or not there was a cause of action surviving against the deceased at the date of death.

High Court Cases If a right of action against the deceased only accrued after the date of death the ordinary’ limitation period usually found in the Statute of Limitations Act, 19 will apply to the claim. An example of this is the case of Bank of Ireland v O’ eeffe 19 IR 4 . It was held by the High Court that where a demand was made on a guarantee after the death of the deceased, the ordinary longer limitation period contained in the Statute of Limitations Act, 19 applied rather than the two-year limitation period referred to in s.9 2 of the Civil Liability Act .

A case which could be contrasted with Bank of Ireland v O’ eeffe is First Southern Bank imited v Maher 1990 2 IR 4 where it was held that, where a contract provided that a default in making an agreed instalment payment triggered an obligation to repay the entire amount of a promissory note without the need for a further demand, the cause of action arose as soon as default was made on the first instalment 30 June 1981 . It was on that date prior to the date of death on 21 July 1983 that the monies became due and owing and the limitation period began to run against the plaintiff. As proceedings had not been brought within two years of his death, in accordance with section 9 2 , the claim was statute-barred. It is also of note that section 9 2 b of the Civil Liability Act, 19 1 makes no reference to any possible extension to the two-year limitation period on grounds of acknowledgement, part payment, disability or concealment. In Bank of Ireland v O’ eeffe the High Court stated that an acknowledgement could not give rise to an extension to the two-year limitation period however, the law does not appear to be certain on this point at present.

Comment Given the short limitation period set out in section 9 2 of the Civil Liability Act, 19 1, lenders should always pay particular attention to limitation periods in the case of deceased borrowers. P

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Domestic Violence Leave Pay Employees will soon have a statutory entitlement to paid domestic violence leave for five days in any 12-month period at their full rate of pay. Alicia Compton and Ellen O’Duffy scrutinise the new Work Life Balance and Miscellaneous Provisions Act 2023 “the 2023 Act”

he 2023 Act is one of several additional statutory entitlements for workers. It transposes the EU Work Life Balance Directive into Irish law. While the 2023 Act was enacted in April 2023, some parts of the new legislation, including domestic violence leave, have yet to commence. Regulations setting out the daily rate of pay applicable to employees who avail of domestic violence leave are required before the leave comes into effect. The government recently announced its aim to introduce such regulations this Autumn 2023 . Domestic violence is defined as violence, or threat of violence, including sexual violence and acts of coercive control committed against an employee or a relevant person. The domestic violence can be carried out by a person who is either the spouse or civil partner of the employee/relevant person, the cohabitant of the employee/relevant person, in an intimate relationship with the employee/relevant person, or a child of the employee/relevant person who is of full age and not a dependent person in relation to the employee/relevant person. Once this leave is in effect, employees who are or have experienced domestic violence will be entitled to five paid days of domestic violence leave in a consecutive 12-month period. The purpose of the leave is to enable those employees to seek medical

48 the Parchment

help, obtain counselling, relocate, seek advice or assistance, or obtain a safety order from the courts. The domestic violence leave extends to ‘relevant persons’. Relevant persons’ are defined in the 2023 Act as a person of whom the employee is the spouse or civil partner of the employee, the cohabitant of the employee, a person with whom the employee is in an intimate relationship, the child of the employee who has not attained full age, or a person who in relation to the employee is a dependent person. This means an employee can also avail of this leave to assist a ‘relevant person’ in any of these ways. It was anticipated that employees who avail of domestic violence leave would only receive 0 of their pay up to a maximum of 110 per day. Stakeholders, including Women’s Aid, criticised this proposal and argued that victims of domestic violence need financial stability and should not be subject to reduced wages. To ensure that the leave is accessible to those who need it, the 2023 Act does not provide any grounds on which an employer can refuse a request from an employee to avail of the leave. Further, an employer cannot request proof of domestic violence, and there is no service requirement. Employees must notify their employer ‘as soon as reasonably practicable’ after taking the leave that they have availed of domestic violence leave.

Autumn 2023 dsba.ie Alicia Compton is a partner and Ellen O’Duffy is an associate in William Fry’s Employment and Benefits Department

Other New or Enhanced Statutory Entitlements The 2023 Act also introduced other new or enhanced statutory entitlements. Medical Care Leave Employees are now entitled to take five days of unpaid medical care leave in any consecutive 12-month period to care for certain persons who need significant care or support for a serious medical reason. This leave has been available to employees since 3 July 2023. Breastfeeding arrangements Employees who are breastfeeding are entitled to reduce their working hours or receive paid time off for breastfeeding. The 2023 Act extended this entitlement from six months after the birth of a child to two years. This change took effect on 3 July 2023. Request for remote working arrangements Employees may soon request a remote working arrangement. Six months’ service is required before an employee can begin such an arrangement. There is no entitlement to a remote working arrangement, and employers can refuse such a request provided reasons for refusal are given to the employee. The right to request such an arrangement has yet to come into effect.

Request for exible working arrangements for caring purposes Employees may now request a flexible working arrangement to provide care to a child or certain persons in need of significant care or support for a serious medical reason. Flexible work can be an adjustment to the employee’s working arrangements, work patterns and/or working hours. Six months’ service is required before an employee can begin such an arrangement. There is no entitlement to a flexible working arrangement, and employers can refuse such a request provided reasons for refusal are given to the employee. The right to request such an arrangement has yet to come into effect.

Next Steps for Employers Employers should ensure that their existing family and caring leave policies are compliant with the provisions of the 2023 Act that relate to medical care leave and the extension of breastfeeding arrangements, as these have already come into effect. Employers should also consider what policy amendments and changes to work practices will be required once the new statutory entitlements relating to 1 domestic violence leave, 2 the right to request remote working arrangements and 3 the right to request flexible working arrangements for caring purposes come into effect. P

Employment Law

An employer cannot request proof of domestic violence, and there is no service requirement

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Allocating Costs in Civil Litigation In Word Perfect Translation Services Ltd v Minster for Public Expenditure and Reform 2023 IECA 189, the Court of Appeal recently addressed a costs order made in the context of High Court proceedings which was the subject of an appeal and cross-appeal. Gerard Kelly and Gear id Carey consider the case and its implications

hese proceedings concerned whether a costs order should be reduced because a preliminary point was not raised prior to the full trial. In doing so, the court considered the proper approach to adopt with regard to the award of costs in light of the Legal Services Regulation Act, 201 “201 Act” . The 201 Act put the principles applicable to the award of costs on a statutory footing. The decision confirms the correct starting point and the approach the courts should take when addressing an award of costs. In short, a party who is entirely successful is entitled to their costs, subject to the entitlement of the court to order otherwise if the circumstances of the case and conduct of the proceedings warrant it.

Background In the High Court, a costs order had been made in favour of the defendant, the Minister for Public Expenditure Minister , who had successfully resisted a public procurement challenge. Unusually, that 50 the Parchment

challenge had been brought by an entity which had not actually submitted a tender in the disputed process. The proceedings were determined on a preliminary standing or eligibility point in accordance with the relevant regulations, namely that because the entity had not participated in the tender it was not an eligible person to challenge it. Accordingly, the High Court did not find it necessary to address the three substantive claims raised by the challenging entity which took up most of the time at trial. The decision on the merits was upheld on appeal. When it came to the award of costs, the High Court awarded 0 costs to the Minister. The principal reason for the reduction was that, although the Minister did succeed in having the challenge dismissed, he had failed to bring a motion to have a preliminary legal point determined before the trial. In particular, the relevant provision of the Rules of the Superior Courts RSC , Order 84A, rule 2 , provides for the possibility of a motion to dismiss proceedings on the grounds of eligibility. However, no such application

Autumn 2023 dsba.ie Gerard Kelly and Gearóid Carey are both Dispute Resolution partners at Mason Hayes & Curran LLP

was brought by the Minister here and the case was determined on that preliminary point following a full trial. This, felt the trial judge, warranted the Minister, notwithstanding the successful outcome, being awarded only 0 of his costs. The Minister’s appeal raised the question as to whether a party who participates in and successfully defends a unitary trial is entitled to their costs. This is based on the premise that the award was improperly too low, where, with the benefit of hindsight, they could have successfully applied to have a particular point tried as a preliminary issue. A unitary trial is one in which the plaintiff litigates damage and liability at the same time. The challenging entity cross-appealed the costs award on the basis that the trial judge’s apportionment of costs was too generous and that, when the time and expense of dealing with the evidence regarding other issues was actually taken into account, a more appropriate starting point was around 10 instead of the 20 the trial judge started with.

Litigation/Costs

Trial Court Reasoning In determining that the Minister should only be entitled to 0 of his costs, the trial judge referenced the importance of cost orders encouraging e ciency and, in the context of Section 1 9, stated that it provided “a powerful financial incentive for litigants to be as efficient as possible with the use of court time”. He further stated that “it is no longer sufficient for the winning party to have been entirely successful in litigation. The party must have conducted her case in the most cost-effective manner possible failing which she is unlikely to get her full costs”. Further, the wording of Section 1 9 1 meant that a court “must consider in every costs application whether the winning party conducted the case in a manner which justifies a lesser award”. The Court of Appeal, as held by Ms Justice Donnelly, concluded that a close analysis of the structure of the High Court ruling and its content revealed that the trial judge “was clearly holding that the court was obliged to ask in every case where costs are at issue ‘have the parties conducted the case in the most cost-effective the Parchment 51

Litigation/Costs

There is no requirement that an entirely successful party needs to demonstrate that it conducted the litigation in the most costeffective manner possible way possible’”. Accordingly, the Court of Appeal observed that the primary issue for it to consider was “whether there is a requirement of the parties to conduct litigation in the most cost-effective manner possible”. It alternatively framed the main issue for its determination as being whether the trial judge was correct in holding that the question of “whether the litigation was conducted in the most cost-effective manner possible was the starting point in considering costs”.

Applicable Law The Court of Appeal’s analysis of this issue began with the 201 Act. It noted that Section 1 8 gave a discretionary power to the courts to award costs, which had been acknowledged in E&F v G&H 2021 IECA 10 to be “very wide and encompasses significant exibility”. It went on to note that Section 1 9 1 itself addressed the situation of a party who was entirely successful and provides “A party who is entirely successful in civil proceedings is entitled to an award of costs against a party who is not successful in those proceedings, unless the court orders otherwise, having regard to the particular nature and circumstances of the case, and the conduct of the proceedings by the parties.” The Court of Appeal then considered the decision of Mr Justice Murray in Chubb v The Health Insurance Authority 2020 IECA 1 3 where he reviewed the general principles applicable to costs and identified the parallels between the relevant provisions of the 201 Act and RSC Order 99. The sequencing of those principles confirms the general discretion regarding costs but the obligation to consider Section 1 9 1 which starts with the entitlement of an entirely successful party to succeed in an award of costs unless the court orders otherwise. As put by Ms Justice Donnelly, “it is only if the court is determining to order otherwise that the court has to have regard to the other factors ” and “nowhere does Murray J. state that it is mandatory to ask in every application for costs under the section whether the parties have conducted the case in the most cost-effective way possible”. Whilst she noted that cost-effectiveness was not directly mentioned by Mr Justice Murray, she stated that she did not doubt that it was in a general sense a rationale behind many of the identified factors. In the context of what the 201 Act actually provided, the Court observed that if the trial judge was correct that the 201 Act was the impetus for the proposition that the starting point for any costs order involved the review of the wining party’s conduct to ensure the litigation was conducted in the most cost-effective manner possible, one would expect that such a departure from the general proposition that costs follow the event would be expressly stated. 52 the Parchment

Analysis The question of whether the Minister had been entirely successful’ was not at issue in the appeal and the Court of Appeal judgment ostensibly proceeded on the basis that he was entirely successful’. In that context, the court held that the trial judge was incorrect in ruling that whether the proceedings were conducted in the most cost-effective manner possible was the starting point of the exercise of the court’s discretion to award costs under the 201 Act. Rather, Ms Justice Donnelly stated that “the starting point must be that an entirely successful party is entitled to an award of costs”. Here, the trial judge had commenced his calculation of the costs as if that did not apply such that he built upwards to a percentage of costs that he ought to order rather than seeing if there was a reason why the entirely successful party ought not be awarded their full costs. She stated that “Approaching costs from the starting point that the entirely successful party is entitled to the full costs is consistent with the statute, the rules and with the decision of the Court of Appeal in Chubb it is imperative that each court approaches the issue of costs in the manner laid down by the relevant legal provisions The general rule however is that a losing party bears the burden of persuading the court that the entirely successful party is not entitled to an award of costs.” The Court of Appeal went on “There is nothing on the face of the 2015 Act that supports the contention that it brought about a change in the law that a successful party would only be entitled to a full award of costs provided it had conducted its case in the most cost-effective manner possible. That goes far beyond the concept of costs reasonably incurred or behaviour that was reasonable in the circumstances. Therefore, the trial judge was incorrect in posing the question in terms of whether the litigation had been conducted in the most cost-effective manner possible. Instead, he should have asked whether he was satisfied that the Minister had behaved unreasonably in failing to bring a preliminary motion on the eligibility point.” In answering that question, the Court of Appeal was satisfied that the Minister had not acted unreasonably and that the trial judge, in considering if the Minister had acted in the most cost-effective manner possible, had asked himself the wrong question. On that basis, the cross-appeal was dismissed and the appeal was allowed. The Court of Appeal expressed the preliminary view that the Minister was entitled to all of his costs but directed that a hearing on that could be convened if the challenger sought to contend otherwise.

Conclusion The case usefully reviews the essential principles applicable to the award of costs in civil cases in Ireland. Although costs are at the discretion of the court, the starting point in the exercise of that discretion is that an entirely successful party is entitled to costs. An order to a different effect may be made having regard to the circumstances of the case and conduct of the proceedings, including the specific factors identified in Section 1 9 1 . Fundamentally, however, and whilst it may be part of the rationale for certain of the specific factors, there is no requirement that an entirely successful party needs to demonstrate that it conducted the litigation in the most cost-effective manner possible. P

Autumn 2023 dsba.ie Sinéad Lynch is a partner and Niall Guinan is an associate at A&L Goodbody

Litigation

Changes to Occupiers’ Liability The Courts and Civil Law Miscellaneous Provisions Act, 2023 “the Act” was signed into law by the President on July 2023. The Act includes new provisions governing an occupier’s duty of care under the Occupiers’ Liability Act, 199 . Sin ad Lynch and iall Guinan review the new legislative changes

he Act aims to create a new balance between the rights of occupiers of premises and the duty of care owed to entrants. The part of the Act relevant to occupiers’ liability was commenced on 31 July 2023. Entrants’ are divided into three categories visitors, recreational users and trespassers. By reducing the legal burden on occupiers in some respects and clarifying the obligations of entrants and the duty of care owed to them , the changes are intended to have the effect of reducing uncertainty on issues of occupiers’ liability. The Minister for Justice has expressed the hope that this may ultimately lead to more affordable insurance coverage for businesses. The extent to which the new legislation will have a practical and immediate longer term impact in this regard, as the courts begin to apply it, remains to be seen. This re-balancing of the duty of care forms part of an insurance sector focus under the current Programme for Government. On 28 June 2023, the Minister of State with responsibility for Financial Services, Credit Unions and Insurance noted that the legislative change would bring Ireland more closely in line with other EU Member States’ approaches to the claims environment and a personal responsibility culture. Key elements of the Act from an insurer and coverage perspective include:

taking preventative measures and social utility of the conduct creating the risk in the first instance.

Voluntary Assumption of Risk The key change is that an occupier does not owe a duty of care to visitors or recreational users who voluntarily consent to and are able to understand the risks. otably, consent to the risk does not require proof of communication with the occupier. It can be implied from words conduct. Significantly from an insurance coverage perspective, occupiers are entitled to assume that entrants can normally look after their own welfare and will take all reasonable care for their own safety while on the occupier’s premises.

Entry with Intention to Commit an Offence Previously, a court could award damages to a recreational user or trespasser who entered an occupier’s premises for the purpose of committing an offence or, once present, committed an offence , where it believed the award to be in the interest of justice. The Act restricts occupiers’ liability in this context to ‘exceptional circumstances, having regard to matters such as the nature of the offence, the extent of occupier recklessness or the fact that the person was not a trespasser’.

Reckless Disregard

What Next – Practical Tips

Occupiers have a duty not to act with reckless disregard for recreational users or trespassers. The Act raises the threshold for holding an occupier liable on grounds of reckless disregard . Previously, an occupier acted with reckless disregard where they knew or had reasonable grounds for believing that a danger existed on the premises. Under the Act, an occupier is only deemed to have acted with reckless disregard where they knew or were reckless as to whether that danger exists.

Some practical steps that insurers might take will include review of product offerings to consider how to reflect the changed position for occupiers wishing to avail of coverage that is more tailored to the new balance of rights. This includes terms and conditions, inclusions and exclusions, disclosures material and similar. Existing policies covering occupiers’ liability will have been crafted with the previous duty of care in mind. In conjunction, insurers, as well as intermediaries, are likely to be assessing impact for their product oversight and governance processes. This includes engaging with those in the distribution channel and potentially the target market and ensuring appropriate policyholder communication. The new balance on occupiers’ liability may increase competition in the Irish market. Media sources have reported that new entrants have already been attracted to the Irish insurance market ahead of the anticipated change. P

Extent of Duty of Care The Act limits the extent of the duty of care owed by an occupier towards an entrant. In assessing whether an occupier has complied with their duty of care towards an entrant, regard will be had to several additional factors including: probability of the danger existing and injury damage being suffered probable severity of injury damage if suffered and practical and policy-based considerations such as cost of

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Pension Scheme Considerations under Capacity Act The Assisted Decision-Making Capacity Act 201 “the Act” finally came into effect on 2 April 2023, having been first enacted in December 201 . While the Act will have general implications for how the capacity of individuals is assessed, Elaine Cunningham and Sean Barton highlight what trustees and administrators of pension schemes need to be aware of in dealing with beneficiaries

Context All adults are presumed to be autonomous and to have capacity for all purposes. However, the law recognises the need to protect vulnerable adults from exploitation or harm where they are at risk. What the Act seeks to establish is a respectful and robust legal framework for supported decision-making. This is primarily achieved through the introduction of a function-centric capacity assessment, the establishment of the Decision Support Service, and the amendment and replacement of existing decision-making arrangements. Various Irish stakeholders should familiarise themselves with this new system, in particular trustees and administrators of pension schemes, who owe fiduciary duties to their beneficiaries. Capacity issues may arise in respect of very elderly pensioners, who reach an age where conditions involving cognitive decline are common. These fiduciary duties require, among other things, that benefits are paid to beneficiaries, that assets are safeguarded, and that trustees and administrators act with care and in the best interests of their beneficiaries. If a trustee or administrator were to accept instructions from a beneficiary lacking capacity or someone purporting to act on a beneficiary’s behalf without appropriate legal authority, they might fail to fulfil these fiduciary duties. It is vital that trustees and administrators acquaint themselves with the Act and establish protocols and procedures to ensure statutory compliance and the fulfilment of their fiduciary duties.

Capacity Section 3 of the Act requires that a person’s capacity is construed functionally. This is achieved by assessing “the basis of his or her ability to understand, at the time that a decision is to be made, the nature and consequences of the decision to be made by him or her in the context 54 the Parchment

of the available choices at that time”. Trustees and administrators should make this assessment before accepting instructions from a beneficiary whose capacity is in question. The Act also introduces helpful guidance on when an individual is considered to have capacity and circumstances in which an individual is considered not to have capacity. Going forward, this guidance will be of particular assistance to trustees and administrators when assessing beneficiary capacity.

Decision Support Service Part 9 of the Act establishes the Decision Support Service, which will promote public awareness of the Act and supervise compliance. As well as holding a supervisory role, the Director of the Decision Support Service “the Director” may, in certain circumstances, make property-related decisions in respect of individuals who lack capacity Section 43 3 where the court is of the view that the Director is best placed to exercise that power.

New Decision-Making Arrangements The Act introduces a number of new arrangements, to assist those who require or may shortly require additional support in making personal welfare and property-related decisions, including pension decisions. As trustees and administrators are likely to encounter these arrangements in their dealings with beneficiaries, we would advise them to become familiar with the associated nuances. These arrangements can be summarised as follows Decision-Making Assistant a “DMA” DMA is the first and least interventionist tier of support. A DMA may be appointed by a person who considers that his or her capacity is or may shortly be in question. A DMA is appointed to assist the appointer in making decisions in relation to

Autumn 2023 dsba.ie Eleanor Cunningham is a partner and Head of the Pensions and Incentives Group at McCann Fitzgerald. Sean Barton is a consultant and specialist in administrative and public law at McCann Fitzgerald

the appointer’s personal welfare or property and affairs or both. However, where a person has appointed a DMA, the decision-making responsibility remains with the appointer. Co-Decision Maker a “CDM” a CDM may be appointed by a person who considers that his or her capacity is in question or may shortly be in question. In this case, the decision-making responsibility is shared jointly between the appointer and the CDM. The Director will maintain a register of all CDMs appointed. Decision-Making Representative a “DMR” a DMR is a court-appointed representative who is given authority to make relevant decisions on behalf of the relevant person. A DMR must, insofar as possible, ascertain the will and preferences of the relevant person on a matter the subject of, or to be the subject of, a relevant decision and assist the relevant person with communicating such will and preferences. The Director will maintain a register of all DMRs appointed. Decision-Making Orders a “DMO” the court can make a DMO i.e., making a relevant decision on behalf of a relevant person where it is urgent or otherwise expedient that a decision is made on behalf of an individual lacking capacity.

Reform of Existing Decision-Making Arrangements Wards of Court The Act phases out the existing Wards of Court system. As a result, a review of all existing Wards of Court will take place within three years by the court or upon application by the ward or appropriate person on their behalf in a process under Part of the Act. The purpose of this review is to ascertain what continuing protection is appropriate for the former ward. The Act Section allows the court to make three distinct declarations a a declaration that the person does not lack capacity b a declaration that the ward lacks capacity unless a CDM is appointed to make one or more than one decision c a declaration that the ward lacks capacity, even if a CDM is appointed. Powers of Attorney Part of the Act introduces a new form of Enduring Powers of Attorney “EPA” and allows a donor to appoint an attorney on whom the donor confers either or both of the following powers a general authority to act on the donor’s behalf in relation to all or a specified part of the donor’s property and affairs or b authority to do specified things on the donor’s behalf in relation to the donor’s personal welfare or property and affairs, or both. Existing EPAs created under the Power of Attorneys Act 199 “the 199 Act” are unaffected, but a new EPA can no longer be granted under the 199 Act. A key distinction is that EPAs under the 199 Act are only registered when the donor loses capacity, but EPAs under the Act must be registered

Pensions/Capacity

with the Director who must establish and maintain a register of all EPAs made under the Act promptly after they are made, but only become effective when a notification that the donor has lost capacity is accepted by the Director.

Next Steps • New decision-making arrangements Where instructions are received, on foot of these decision-making arrangements, we would advise trustees and administrators to verify the instructor’s authority by obtaining authenticated copies of the agreement or order and where appropriate reviewing the relevant register. • Wards of Court We suggest that trustees compile a list of beneficiaries who are currently wards and write to the committee or other person currently acting for these individuals noting that in light of the Act, a copy of the court’s declaration should be provided to the trustees as soon as it has been made. Depending on the outcome of the declaration, the trustees and administrators may proceed to take instructions from the beneficiary, a CDM or a DMR. • Powers of Attorney We suggest that trustees compile a list of all EPAs of which they have been made aware made before 2 April 2023 under the 199 Act and going forward under the Act , and that this list is reviewed annually to ensure that all EPAs received by the trustees are still valid and in force. We also suggest that where a new EPA is received, an authenticated copy is requested where not already provided.

Existing EPAs created under the Power of Attorneys Act 199 “the 199 Act” are unaffected, but a new EPA can no longer be granted under the 199 Act

Conclusion The reform of the Irish supported decision-making system was long overdue and has been welcomed by human rights campaigners and healthcare professionals. The Act establishes mechanisms that ensure the will of those lacking capacity is respected. It is essential that trustees and pension scheme administrators become familiar with the Act, in order to understand how they can ensure their duties to beneficiaries are fulfilled in cases where a beneficiary’s capacity is in question. P the Parchment 55

News

DSBA Hike The DSBA had their annual hike on Saturday 2nd September. Members and their friends, families and dogs met at The Blue Light in the hills above Stepaside and set out on an afternoon’s hiking. After the hike everyone gathered in The Blue Light for refreshments. All members and their friends, families and dogs are welcome to join the DSBA on our next hike which should be in late March 2024. A special thanks to former DSBA President Kevin O’Higgins and Judge Tony O’Connor for their help in organising the hike and plotting a suitable route to suit all levels of hiking enthusiasts.

New Look Courts.ie The Courts Service has embarked on an ambitious 10-year modernisation programme, with the aim of enhancing services to court users. One of the cornerstones of this programme is the enhancement of our ICT services. Coinciding with the start of the new legal year, a new case management system was implemented in the High Court from 2 October 2023. This is the first stage of a modernisation process. In the future, it is anticipated that there will be a search engine for every firm so they can search all cases they are involved with on a daily basis.

Views on Third Party Litigation Funding Invited The Law Reform Commission has invited submissions on its consultation paper on Third Party Litigation Funding. TThird Party funding is where a third party with no prior connection to the litigation agrees to finance all or part of the legal costs of the litigation, in return for a fee payable from the proceeds recovered by the funded litigant. Such funding allows meritorious claims that might not otherwise be viable to be litigated. This type of funds is restricted in Ireland but widespread in other jurisdictions. The DSBA intends to make a submission on behalf of its members and you are invited to have your view heard. If you wish to make a contribution, please email maura@dsba.ie on or before 23 October 2023. 56 the Parchment

Legal Aid Crisis The provision of legal aid is enshrined in our primary legislation through the Legal Aid Act of 1962. Our Minister for Justice recently brought before the Oireachtas the Criminal Justice Legal Aid Bill 2023 which the Government hope will provide for a more effective legal aid system. The State has a legal obligation to ensure that those who cannot afford to pay their legal fees are provided with a solicitor and if needs be counsel when facing criminal charges that are grave in nature. The right to a defence of persons charged with an offence is a fundamental cornerstone of the rule of law. Unlike other countries where the services are provided directly by the State, in Ireland the State outsource that legal obligation under the legal aid act and related statutory instruments to solicitors in private practice. The benefit for the State is an inexpensive system that only obliges the Government to pay solicitors for the work they do. The benefit for solicitors in private practice is that we can either take on the work or decline to do so, we can do the work together with private client work and build it in to a business model that suits ourselves, our clients and ultimately the State. It is a system that can benefit both the State and the solicitor but only if the financial arrangements are attractive to all of us. Without solicitors across the state taking on this work the State is in default of their legal obligations to provide the service. The basic level of payment for legal aid has suffered cuts since 2008 without restoration. The legal aid rates now paid are the same as they were more than two decades ago. It is no longer economically viable for practitioners

to participate in the legal aid scheme. This in turn means that there is a danger of accused parties going without effective representation. If we are committed to the rule of law, we cannot allow this to happen. The DSBA through our criminal committee has worked hard to engage with the Minister for Justice in order to resolve this matter over many months. While we are aware that the Minister is in support of fee restoration, nothing has happened as of writing. Our colleagues in the Bar withdrew their services on the 3rd October 2023. We supported the action by our barrister colleagues. As solicitors are a statutory profession, we have different obligations and responsibilities, and we are not entitled to withdraw our services in the same way. DSBA is committed to supporting its members so that they in turn can assist their clients. Although we have an adversarial system of law it should not be forgotten that we have for many years worked very well with the Bar Council, the State, the DPP, the judiciary and Court Service to ensure that we have an effective system of justice. It is worth noting that the proposed new criminal legal aid amendment act suggests that it will establish a criminal legal aid oversight committee under section 39 of the Bill. This is a helpful proposal but it does not suggest that the future arrangements for determining appropriate rates of pay will be determined and reviewed in an independent and ongoing basis. We call on the Government to act urgently to resolve this important issue for the profession. Susan Martin, President, DSBA

Autumn 2023 dsba.ie Ger Connolly is an employment partner at Mason Hayes & Curran

Employment Law

When Criminal Proceedings and Employment Investigations Collide Ger Connolly considers a recent High Court case where a prison o cer challenged the decision to deny him legal representation in a disciplinary process

n this case, the prison o cer was alleged to have sent inappropriate messages to the wife of an inmate. This conduct included telling her she was a beautiful girl’ and exchanging photographs. The o cer was suspended, and the issues were referred to the Garda . Further allegations of inappropriate behaviour subsequently arose including that the o cer had smuggled contraband into the prison and that he had threatened an inmate. Following a formal employment investigation, the o cer was invited to a disciplinary meeting. His solicitors were not permitted to attend. They were informed that they could only attend where matters Were very complex Had serious potential consequences and Involved particularly di cult matters of law. The situation needed to be exceptional for a right to legal representation to arise. While the allegations were serious, matters were not complex, nor were they exceptional. In his proceedings before the High Court, the o cer alleged his trade union would not represent him as he was under investigation by the Garda . Mr. Justice Barr cited case law which took the view that legal representation was permitted only in exceptional circumstances. The question to be asked was whether ‘from the accused’s point of view, legal representation was needed in the particular circumstances of the case’. The court also referred to a 2020 decision where it was noted that internal disciplinary processes were not the same as a criminal trial. While an allegation may be a criminal offence, the outcome of a disciplinary procedure would have no weight in a criminal trial. Di cult issues of law or complex facts, coupled with serious allegations and potential consequences, might cumulatively require legal representation, again in exceptional circumstances.

New Factor for Consideration Mr. Justice Barr raised a new factor for consideration. Where there is an ongoing criminal investigation

into the same matter as the disciplinary hearing, or where a prosecution has begun, then the person under investigation may require legal representation. This representation will be required to advise on when they could invoke the privilege against self-incrimination when answering questions in a disciplinary investigation.

Decision It was subsequently confirmed to the court that there was no ongoing criminal investigation. The inmate’s wife had not made a criminal complaint, and there was no pending or ongoing investigation. The o cer could therefore be represented by his trade union. It was held by Mr. Justice Barr that there were three main issues to address at the disciplinary hearing 1. Whether the o cer sent the messages. 2. Whether the o cer made a threat about an inmate. 3. Whether, assuming the messages were sent, it amounted to inappropriate behaviour. The court determined that these issues did not require an in-depth knowledge of law. Instead, they were questions of fact and legal representation was not necessary to ensure a fair hearing. There was also no risk of the o cer incriminating himself in any criminal trial. Therefore, there was no entitlement to legal representation.

Conclusion This case rea rms the well-established principle that legal representation in disciplinary procedures is only necessary in exceptional circumstances where there is a complicated legal issue. Mr. Justice Barr’s comments on the privilege against self-incrimination are particularly interesting. He noted that where a set of circumstances giving rise to an employment investigation or disciplinary hearing also give rise to a criminal investigation, there may well be a right to legal representation to vindicate the privilege against self-incrimination. It will be interesting to see if this principle could also apply regarding parallel proceedings which fall short of the criminal standard. P

Where a set of circumstances giving rise to an employment investigation or disciplinary hearing also give rise to a criminal investigation, there may well be a right to legal representation to vindicate the privilege against selfincrimination

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Photocall

The DSBA Golf Society held an outing at Killeen Castle Golf Resort on the 20th June 2023. The Society is open to all members of the DSBA and their guests and our outings provide a fun and relaxing way of meeting with colleagues outside of the work environment. If you would like to join the DSBA Golf Society and enjoy some outings later in the year, contact Maura Smith at the DSBA Office on 01 6706 089.

Photography: Owen O’Connor

Left to right: Hugh O’Neill, Alex Jones, Valentine Duggins, Jonathan Berkson, Rob McKee and DSBA Vice President Matthew Kenny

Left: Maureen Collins, Mary Romeri and Barbara O’Mara Far left: Liam Hipwell, Matthew Kenny and Colm Costello

Right: Fiona Duffy, Mary C. Dillon and Mary Molloy Far right: Hugh O’Neill, Aaron McKenna, Richard Bennet and Stephen Fleming

Left: Eamonn Shannon, Conor Canavan, Michael Knightly and Garrett Fleming Far left: Sean Greene, Peter Newman, Phelim McGready and Daire Murphy

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Autumn 2023 dsba.ie

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Janet O’Byrne, a registered stockbroker and a member of STEP who specialises in the valuation and administration of shares in deceased’s estates, Eneclann, the forensic title searchers and Seamless Movers, who can take care of re settlement of legacy tenants in property bequests. These services aid clients and families in making desired lifestyle transitions. Clients can choose services as needed, or appoint Patrick as the overall project manager to work with specialists on solicitors’ behalf. He handles all of the practical complexities involved in delivering the inheritances safely to their intended beneficiaries wherever they may be across the world. In his specialty of packing and shipping fine art and antiques, trust and expertise are key. Patrick’s experience and understanding ensure care, protection, customs clearance, and shipping throughout the process. Bespoke crating safeguards items, employing suitable techniques and materials. His expertise ensures cherished pieces withstand the journey. He also arranges property content valuation, packs and ships worldwide and assists in disposal through auction houses or storing/disposing of complete contents for property sale and family division. No matter the probate needs, decades of moving and storage experience ensure assets’ transition is handled with care, sensitivity and professionalism. Services include: Liaison with Legal Advisors & Executors • Property Survey & Inventory Creation • Professional Packing & Shipping Worldwide • Insurance & Customs Clearance Worldwide • Independent Valuation of Art & Antiques • Removal & Storage of House Contents • House Clearance & Preparation for Sale • Family Mediation & Dispute Resolution For more information, visit patrickoman.ie

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50+ years in Practice

A lunch was hosted by the DSBA in honour of Dublin Solicitors who are 50 years (or more) in practice on the 7th October 2023 at the RDS, Ballsbridge. There was a large attendance to mark this very special occasion.

Left: Greg Ryan, Stefan O’Connor and Diego Gallagher

Left: Susan Martin, President, DSBA Far left: Barry O’Neill and Peter Douglas

Right: Patrick White, Niall Cawley and Thomas Mullins Far right: John Fitzpatrick, Paul Hayes and Derek Greenlee

Left: Patrick White, David Ensor and Guy French Far left: Patrick Kevans, Peter Kirwan and Rose Mary Kirwan

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Autumn 2023 dsba.ie Photography: Owen O’Connor

Left: Michael Carrigan, Catherine Murphy, James Mackey, William Early and Alvin Price Far left: Conal Clancy and Ernest Farrell

Right: Gordon Henderson and Caroline Lynam Far right: Geraldine Madigan, Louise Peart and Bernadette Malone

Left: Patrick McMahon, Eric Brunker and John Fitzpatrick Far left: Brian Gallagher and Anthony Brady

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DSBA Gala Dinner

The DSBA held a very successful annual conference in London from the 15th to 17th September 2023. The Gala Dinner took place in the Great Hall of The Honourable Society of Lincoln’s Inn. Ms. Lubna Shuja, President of the Law Society of England and Wales, and Baroness Hale of Richmond, former President of the Supreme Court of the United Kingdom, joined the DSBA guests for the evening.

Left: Caoilfhionn Gallagher KC (Guest Speaker), Lubna Shuja, President of the Law Society of England and Wales, DSBA President Susan Martin, Baroness Hale of Richmond, and Olivia McCann, Waterford Law Society

Left: Majella Dolan and Deirdre McDermott Far left: DSBA President Susan Martin addresses the dinner guests

Right: Margaret McGinley, Kyran McGinley, Conor Fahy and Judge Mary Fahy Far right: Jack Meehan, Stefan O’Connor and Pat Igoe

Left: Morette Kinsella and Bernadette Cahill Far left: Olivia McCann and Eileen Schofield

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Autumn 2023 dsba.ie

Far right: Niall and Mary Cawley

Left: Patricia Waley, Tony O’Sullivan, Deirdre Walsh and David Walley Far left: Keith Walsh and Baroness Hale of Richmond

Right: Michael and Orlagh Traynor Far right: Michael Mulcahy and Veronica Gates

Left: Fergus Gallagher, Anne Leech and Anita Gallagher Far left: Rory and Eimear O’Riordan

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Closing Argument Stuart Gilhooly SC

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

Crime Doesn’t Pay W

e all grew up with them. We wanted to be them. Whatever your vintage, and this column remembers the eighties all too well. There was legal drama which you couldn’t take your eyes off. For the older denizens amongst us, Matlock and Petrocelli was appointment television. This column had a particular fondness for the David Kelley vehicle, The Practice, in the late nineties. More recent generations may gravitate towards The Lincoln Lawyer. They all had one thing in common. The lawyer was the good guy. Innocent people, wrongly accused, usually walked and when they didn’t, it was because the system was flawed. The Benjamin Franklin mantra “better a hundred guilty persons should escape than one innocent person should suffer”, echoing Blackstone’s ratio, stuck in this impressionable teenager’s brain. The lawyers weren’t always suave and debonair, like Suits, but they were always moral and they fought the good fight. Later, the work of the Innocence Project brought these principles into real-life sharp focus and inspired more generations of wide-eyed young law students to join the cause and right the wrongs of a system designed to convict, not fairly try, its defendants. The glamour, of course, was made for TV and the reality of life in the criminal courts was colder and grittier than most could have imagined nod here to The Wire which did its best to negate this image . Innocent people did get convicted and worse, most 64 the Parchment

weren’t innocent, they were guilty as hell and kept coming back for more. But it was vital work. The 100 guilty persons principle rang true in all jurisdictions and one innocent person going free made up for a multitude of mundane pleas and repeat offenders. It was a vocation. No one was making a fortune. Quite the opposite really but it paid the bills and no one day was ever the same. Until it stopped paying the bills here. In 2008, the Celtic Tiger had roared itself into a whimper and everyone began to pay for the sins of excess. What amounted to fairly stingy pay for time-consuming work and unsociable hours became unprofitable and hard to sustain. But times were hard. Everyone was taking a hit and there was solidarity in penury. The bills had fallen due and everyone had to stump up. That was 15 years ago when the rates for criminal legal aid fell back to 2002 levels. And here we are in 2023 and nothing has changed. Except that it has. For everyone else. Civil servants, politicians, judges, who all wrapped the green flag around them in 2008 and took one for their respective teams, have seen rates restored and now exceeding where they were in 2008 when the reductions were made. Representations to successive Minsters for Justice, all of whom have agreed with the submissions to bring criminal legal aid fees back into a realm where they are sustainable, have come to nought. The Department of Finance has other ideas.

The government are supposed to be grownups here and if they can’t recognise the inevitable race to the bottom that occurs when it stops making economic senses, then who will?

Let’s be honest, there aren’t many votes in giving more money to lawyers to defend criminals. Defendants are only innocent on TV. And most people still think there’s no smoke without fire. If you encounter this with your non-legal friends, ask them if they were accused of murder, would they prefer a cheap or an expensive lawyer and the answer is easy to predict. And that is where the problem lies. No one really cares until its their ass in the bacon slicer. There was no outrage when the Bar went on strike because it didn’t matter to enough people. Or many people at all. No one believes any lawyers are badly paid or cares that innocent people may not get a good defence. Law students will continue to watch legal dramas and dream of victories against the head. But they will be only in their imagination. They will continue to gravitate towards the ever-expanding Big Law World’ and new areas of law where they can make enough money to pay their mortgages and their childcare. Lawyers are people too and human nature will always tend to follow the money. Especially when the maths says that crime doesn’t pay anymore. If this was doctors or gardai on strike, there would be uproar. The government are supposed to be grown-ups here and if they can’t recognise the inevitable race to the bottom that occurs when it stops making economic senses, then who will? P Stuart Gilhooly SC

IF IT FEELS LIKE THIS JUST FELL ON YOU