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D UB LIN SOLICITORS’ B AR ASSOCIATION MAGAZ INE | SPRIN G 2016 | ISSU E 67
JAMES MACGUILL CROSS-EXAMINED 20 MINUTES WITH CAOIMHE HAUGHEY
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PEARSE’S LAST LETTER Solicitor recalls last consult of 1916
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Spring 2016 dsba.ie
From the Editor
W
elcome to the spring edition of the Parchment. As ever it is packed with articles relevant to practice and we feature colleagues James MacGuill, Caoimhe Haughey and European cross country medallist Caroline Crowley. As the centenary of the 1916 rising approaches, we reproduce a piece from the Parchment archives where solicitor Stephen P Maher tells a fascinating story about his grandfather, Daniel C Maher, a solicitor who had a most famous client – one Padraig Pearse. On Ash Wednesday 1916, just before the Easter Rising, Daniel C Maher made Padraig Pearse’s last will and testament. We reprint the article and details of that poignant meeting. New legislation takes centre stage in this edition as John Costello assesses the Assisted Decision–Making Capacity Act 2015, which gives vulnerable people in our society much-needed legal protection from abuse, exploitation or fraud. Meanwhile Keith Walsh looks at the wide-ranging changes introduced following the commencement in
January of part of the Child and Family Relationships Act 2015. This new legislation sees considerable change in the areas of guardianship, access and custody plus enhanced legal recognition for unmarried fathers, civil partners, cohabiting couples, grandparents and other relatives as well as those in loco parentis. Of particular welcome note is that this new family law legislation will ensure that the court must regard the best interests of the child as the paramount consideration. This legislation has been long awaited following the introduction of the 31st amendment to our Constitution back in May 2012. Happy Easter
John Geary jvgeary@gmail.com
DSBA COUNCIL 2015/2016
EAMONN SHANNON DSBA President
AINE HYNES Vice President Chair - Mental Health and Capacity Committee
ROBERT RYAN Honorary Treasurer
ELAINE GIVEN Honorary Secretary
GREG RYAN Programmes Director Chair - Commercial Law Committee
DIEGO GALLAGHER Chair - IP and Technology Committee
TONY O’SULLIVAN Chair - Property Committee
JOE O’MALLEY Chairman of the Litigation Commitee
CAROL EAGER Chair of Commercial Law Commitee
SUSAN MARTIN Chair of Family Law Committee
VICKY PIGOT Chair - In-house Lawyers Committee
JOHN O’MALLEY
NIALL CAWLEY
LAURA HORAN Chair of Younger Members Committee
PAUL RYAN Chair of In House Committee
PUBLISHED BY The Dublin Solicitors’ Bar Association, 1st Floor, 54 Dawson Street, Dublin 2.
The DSBA, its contributors and publisher do not accept any responsibility for loss or damage suffered as a result of the material contained in the Parchment.
of an advertisement in the Parchment does not necessarily signify official approval by the DSBA, and although every effort is made to ensure the correctness of advertisements, readers are advised that the association cannot be held responsible for the accuracy of statements made or the quality of the goods, services and courses advertised. All prices are correct at
time of going to press. Views expressed are not necessarily those of the DSBA or the publisher. No part of this publication may be reproduced in any form without prior written permission from the publishers.
EDITOR John Geary PARCHMENT COMMITTEE Julie Doyle Stuart Gilhooly Áine Hynes Geraldine Kelly Killian Morris Gerry O’Connell Kevin O’Higgins Joe O’Malley Keith Walsh COPYRIGHT The Dublin Solicitors’ Bar Association
DSBA OFFICE, T: 01 670 6089 F: 01 670 6090 E: maura@dsba.ie DX 212011 W: www.dsba.ie ADVERTISING ENQUIRIES Donal McDonald T: 01 707 6036
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Spring 2016
Contents 6
20 Minutes with...
10
Legal Services Market Disruption?
Personal injury solicitor Caoimhe Haughey interviewed
As a solicitor it’s important to listen and not judge. Being able to take advice is just as important as being able to give advice page 6
20 MINUTES WITH... CAOIMHE HAUGHEY
Flor McCarthy questions if this idea of disruption will impact on the Irish legal services market
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DSBA Book Awards Shortlist We have the shortlist for the prestigious DSBA Book Awards
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Planning for the future
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Election Lawyers
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Wide Ranging Changes to Family Law
Niall Cawley advises on what to consider when planning for the future and indeed the inevitable
Kevin O’Higgins reports on the solicitors and barristers who ran in the recent General Election
Keith Walsh reviews changes from the new Child and Family Relationships Act 2015
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Extracts from the Easter Rising Patrick Pearse’s will was prepared by Dublin solicitor William C Maher days before his execution
Dublin Solicitors’ Bar Association 1st Floor, 54 Dawson Street, Dublin 2, Ireland T: 01 670 6089 E: info@dsba.ie W: www.dsba.ie
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Spring 2016 dsba.ie
Contents
REGULAR FEATURES 01 Editor’s Note 04 President’s Message 56 News 58 In Practice 61 Photocall 64 Closing Argument
32 32
Overcrowding in A&E Departments Dr Jean O’Sullivan offers a fivestep solution to overcrowding
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CGT Withholding Tax & Clearance Certificates
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Meet Caroline Crowley
40
Cross Examination
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Traps in Unfair Dismissal Cases
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The Assisted DecisionMaking (Capacity) Act
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The Way Forward for Clinical Negligence
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Predictive Coding and Future Challenges
54
Roy Keane, and the way he might look at you
Brian Broderick assesses the position following a recent increase in the threshold
The solicitor and European cross country medallist profiled
Stuart Gilhooly interviews solicitor James MacGuill
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The provisions of Section 14 of Unfair Dismissal Act 1977-1993 should never be underestimated
New laws give vulnerable people much needed legal protection from abuse and fraud
Actions are on a statutory footing thanks to the Legal Services Regulation Act 2015
An assessment of e-discovery
Patrick Ambrose says advertising and the law can be uncomfortable bedfellows
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James MacGuill cross examined the Parchment 3
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Message from the President
State of the Nation
T
he promotion of collegiality has been at the core of the DSBA since its foundation in 1935 and is reflected in our two flagship events this year; our annual conference which takes place in Washington from September 21st to 25th and the DSBA members’ dinner and Law Book of the Year Awards on Friday, June 17th. The DSBA annual conference taking place on September 21st in Washington D.C. will be a buzz with election fever and the JFK centenary celebrations on at the same time. The annual conference hotel is the historic, luxurious five-star Mayflower Hotel with a central location on Connecticut Avenue and the tours available to delegates include tours of the White House, Capitol Hill and the Library of Congress. I guarantee you that this is a conference not to be missed and I hope you will join us for what promises to be a memorable trip. Direct flights are available from Dublin to Washington with Aer Lingus and United Airlines and the conference brochure and booking form is available on the DSBA website, www.dsba.ie. This is the third year of the DSBA members’ dinner and the Law Book of the Year Awards taking place on Friday, June 17th at the Doubletree by Hilton Hotel, more commonly known to many of us as “the Burlo” which is a fantastic venue. The shortlist for the Law Book Awards is announced in this edition of The Parchment and I would encourage you to join us in “the Burlo”. It promises to be a truly great night and I hope you can save the date. Full details will be posted on the website and tickets will be available from Maura Smyth at the DSBA office. Since my last “Message from the President”, the Legal Services Regulation Act, 2015 has finally been signed into law introducing substantial changes affecting legal practice and regulation. This is a complex and substantial piece of legislation which is intended to have major long-term effects on both the legal profession and the legal services market in Ireland. The main headlines seem to be the setting up of the Legal Services Regulatory Authority (the running costs of which we will have
While the legislation has not yet commenced, colleagues should be aware of the implications that the legislation has for the profession to pay) and the introduction of Limited Liability Partnerships, which is indeed very welcome. While the legislation has not yet commenced, colleagues should be aware of the implications that the legislation has for the profession. We are keen to keep our members informed and updated in relation to how the Act will impact on them and with that in mind; we held a very successful seminar in conjunction with our colleagues in the Law Society on March 1st. The seminar dealt with the implications for practitioners of the Legal Service Regulation Act, 2015 and was attended by well over 200 members who seem to have found it very informative. A special word of thanks to Niall Cawley, Robert Ryan and the DSBA Practice Management Committee for organising the seminar.
In other news, the Courts Service is currently in the process of developing a new system to provide for the management and administration of licensing businesses within the circuit and district courts. The project commenced around March of 2015 and I understand that the Court Service intends to roll out the system in Dublin towards the end of 2016. The DSBA has a taskforce in place which liaises with the Court Service and we will keep our members informed and updated as the project progresses. I would encourage colleagues to make themselves familiar with the system, even if you don’t practise in the licensing area, given that it will effectively be the forerunner for future developments with an online focus across the entire area of civil litigation. I would like to express my thanks to my officers, my council members and all those participating at committee level for the huge work they are doing at present, which is much appreciated. Finally I would like to congratulate Josepha Madigan, a former member of the DSBA Family Law Committee, on being elected to the Dail and wish her every success. Enjoy your Easter break and remember that the DSBA is here to represent you. We welcome your views on any issue which affects members and if you need assistance in any way, please contact us. Eamonn Shannon, DSBA President
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Caoimhe Haughey of CM Haughey Solicitors
Be proud of your qualification and always respect your colleagues. Clients come and go, colleagues don’t
Caoimhe Haughey Caoimhe Haughey is the principal of CM Haughey Solicitors and niece of former Taoiseach, Charles Haughey. Caoimhe’s practice concentrates on personal injury litigation with a focus on medical negligence. She has been in the headlines recently due to her involvement as a solicitor for the plaintiff in the Ms Y case
When did you qualify? 1994 If you hadn’t become a solicitor what would you have done? It’s so long ago now! It’s hard to imagine doing anything else. I would loved to have qualified as a vet. That would be my dream job. Have you any funny anecdotes from your time as a trainee/apprentice? Yes lots – including against myself. One that comes to mind is the late Judge Ballagh of the district court, repeatedly telling a young male apprentice who was applying for a hearing date “I can’t hear you.....”. The poor fella kept moving closer up the packed courtroom, raising his voice only to hear the same disdainful response from Judge Ballagh. “I can’t hear you...”. With a look of confusion and bewilderment on his face he opened his mouth for the last time when Judge Ballagh asked: “Would somebody ever tell that young man to put on a jacket
and tie?”. That was a lesson I never forgot about dressing appropriately for court and remembering your place. What type of practice do you have? Plaintiff personal injury with a heavy focus now on medical negligence. We also cover employment law. I don’t really say ‘no’ to anything... except conveyancing. How do you think the Legal Services Regulation Act will impact on the solicitors' practice? I really don’t know. I think there has been unfair scrutiny and criticism of solicitors’ fees/costs in recent times. The Bar has largely escaped this. I welcome the principle of more transparent regulation but I am not convinced it is going to work efficiently in practice. As for limited-liability, multidisciplinary partnerships and considering whether they will work in practice; is like the question the media want to know right now – will Fianna Fail go into government with Fine Gael and will that work?! Change
is necessary but tradition is also important. What was your most memorable moment in practice? When my sign went up on the wall outside my premises – CM Haughey is five years old this year. Who has had the most influence on your career and why? My mother Kitty – she is the wisest, most perceptive person I know. She turned 81 last week. Has your training and experience as a lawyer helped you to overcome issues in either your professional or personal life? As a solicitor it’s important to listen and not judge. Being able to take advice is just as important as being able to give advice. A number of years ago I was involved in a very acrimonious litigation with a former business partner that ended up in the High Court, resulting in two reserved judgements delivered by Ms Justice Laffoy, both in my favour. It was an extremely difficult time for
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Spring 2016 dsba.ie In conversation with Killian Morris of Amoss Solicitors
20 Minutes With...
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Photography: Bryan Meade
me personally and professionally. I had to dig deep to use all my skills as a solicitor to remain objective and listen to the advice of my legal team. I have to say my legal team was outstanding and they know who they are!! Describe an event in your personal life which has had the most impact on your development as a solicitor? Being a client myself. I believe that has made me a better solicitor for my own clients. Do you have political ambitions? Not in the real sense but it is in the blood I suppose. I like to think that by successfully representing my clients, I might be able to influence change in some small way. If you had absolute power to implement
one piece of legislation in the morning, what would that be and why? I would introduce abortion as a choice for women in cases of fatal foetal abnormality, rape and incest. In my practice I have dealt with women who have been in these tremendously difficult, traumatic situations. It is heartbreaking and devastating. What would be your dream holiday? A five-star road trip around the best beaches in the south of Spain with me and my three dalmatians. I am dog mad! Describe a typical day in the life of Caoimhe Haughey? I listen to RTE Radio 1 and read the newspaper apps. Then I make my plan
of things to do – notwithstanding my best intentions, the plan never gets fully done. I have a long commute so to avoid the traffic, it’s either 6.30am or wait til after 9am. The day seems to fly by. No time for lunch but the girls get me a sandwich for my desk. I will try and get a walk with the dogs in the morning and the evening to clear my head. I get home by 7pm or so. I read something recently which resonated... life is like a toilet roll, the closer it gets to the end the faster it goes! Any advice for those entering the profession in 2016? Be proud of your qualification and always respect your colleagues. Clients come and go, colleagues don’t. P
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Legal Services Market Disruption? Disruption is a bit of a buzzword at the moment: Uber is disrupting traditional taxi services while Airbnb is disrupting the short-stay accommodation market. In the context of the Legal Services Regulation Act, Flor McCarthy questions if this idea of disruption is likely to have any impact on the Irish legal services market?
While nonlawyers cannot invest in or own traditional legal businesses including law firms, they can go one better: create non-law firm competing businesses
D
isruption in this context was coined by Clayton M Christensen in his 1997 book The Innovator’s Dilemma. Christensen identifies two types of technological innovation: sustaining technologies and disruptive technologies. Sustaining technologies enable established players to serve the needs of the market better. Disruptive technologies are another matter. They tend not to suit the immediate interests of established businesses or their markets. They serve a new, lower end of the market that existing players do not see as significant or attractive and which they ignore or reject as a result. Disruptive technologies are therefore generally adopted by new market entrants; start-ups who can experiment and thrive in this emerging lower end of the market – often with a lower cost base or different business model to the incumbents. What tends to happen next is that a new market entrant with the disruptive technology becomes dominant at the lower end of the market. These new market entrants are then able to move upmarket from below. Confronted with this now significant threat from below, the older established businesses have to develop a defensive alternative to this new competitive threat, but often they come to this realisation too late. The cost base of the older business is too high to compete with the disruptive threat. The only viable alternative for the incumbent is to continue to retreat to higher ground. But the new entrants are happy to move up market too and are now well positioned to be able to do so.
While this is a phenomenon that is understood in terms of technology, it is by no means restricted to tech businesses. Taxis and hotels are some of the oldest, most traditional businesses going and these businesses are currently being ravaged by new technologies which have nothing to do with the essence of those businesses themselves. All Uber and Airbnb do is connect providers with consumers in innovative ways, taking a margin in the process. (Although interestingly, Christiansen has said that Uber is not a true disruptive technology within the original definition of his theory, but that doesn’t change much for our purposes here.) So how might this unfold in the provision of legal services? Where might disruption come from and how might it unfold? What bearing is the Legal Services Regulation Act likely to have on all of this? And what should legal businesses do in the face of it all? To answer the last question first, the businesses most likely to survive and thrive in the face of the threats posed by these types of changes are those who have a clear strategic vision for their own future in terms of their value proposition and how they can uniquely position themselves to serve their target markets. The default strategy adopted by most legal businesses historically, is to just keep doing what we’ve been doing under our own particular little rock and hope that no-one comes along and turns it over. Hope, however, is not a strategy. And it is far too early to say with any certainty what impact the Legal Services Regulation Act may have in this regard. However one thing seems clear, while the Act provides something in terms of LLPs, it does not
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Spring 2016 dsba.ie Flor McCarthy is managing partner of McCarthy & Co Solicitors and author of The Solicitor’s Guide to Marketing and Growing a Business; How to Turn Your Legal Practice into a Financial Success, www.thesolicitorsguide.com
enable lawyers to practise in proper companies. This means that those who own and invest in law firms will continue to have to be lawyers. We are not going to have the structures that will enable private equity investing in legal businesses here any time soon. Lawyers may see this as a glass half full as well as half empty; we do not have access to limited liability corporate personality but at least we are not capable of being exposed to new competitive threats from non-lawyers. Well, not exactly. Because while non-lawyers cannot invest in or own traditional legal businesses including law firms, they can go one better: create non-law firm competing businesses. And this is where the real threat of disruption is likely to emerge. The primary manifestations of these in the US and the UK so far, are in the form of sites like Legal Zoom and Rocket Lawyer. For a modest monthly fee these websites provide access to basic consumer and small business documents and services. Things like wills, enduring powers, business start-up documentation and simple debt collection are provided here at very low cost. And in a typically disruptive pattern, most traditional law firms view
Practice Management
this with disdain and are happy to view this as an insignificant low end of the market that they do not see as profitable. However, this is the thin end of the wedge. As well as providing access to these low end products and services, these sites provide access to panels of lawyers on innovative pricing structures. Here’s where it gets interesting. These non-law firm websites are positioning themselves as the place to which consumers and businesses go when they need legal assistance; at least to start with. And then, when the assistance required goes beyond the scope of what the sites are capable of, they provide access to legal advice and assistance. The consumer pays for access to the model and the lawyer pays for access to the market. The intermediary wins both ways and sets the agenda. It is a global phenomenon that increasingly, consumers and small businesses simply cannot afford lawyers. As a result, many go without if they can or try to deal with matters themselves if they are faced with a legal situation they cannot avoid. This is a huge unmet consumer need; an abhorrent vacuum that a disruptive innovator is sure to fill. Unless, of course, we do something about it ourselves first. P the Parchment 11
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Law Book Awards 2016 - the shortlist Following a lengthy period of reading and consultation, the judges of the DSBA Law Book of the Year Awards are delighted to announce the shortlist for this year’s awards. A gala dinner and prizegiving ceremony will take place on Friday, June 17th 2016 at the DoubleTree by Hilton Hotel when the winners will be announced. Full details of the event will be available soon at www.dsba.ie. The shortlisted books are as follows:
DSBA Law Book of the Year
– sponsored by Byrne Wallace Solicitors
Damages Tadgh Dorgan and Peter McKenna, Round Hall Thomson Reuters, €265
Injunctions: Law and Practice, 2nd Edition Brendan Kirwan, Round Hall Thomson Reuters, €265
Freedom of Information Law, Maeve McDonagh, Round Hall Thomson Reuters, €285
Medical Negligence and Childbirth Doireann O’Mahony, Bloomsbury Professional, €195
Easements, 3rd Edition Peter Bland, Round Hall Thomson Reuters, €265
The Law of Intoxication: A Criminal Defence Michael Dillon, Round Hall Thomson Reuters, €195
Equality Law in the Workplace Alastair Purdy, Round Hall Thomson Reuters, €150
Privacy & Data Protection Law in Ireland, 2nd Edition Denis Kelleher, Bloomsbury Professional, €195
Keating on Probate, Fifth Edition Albert Keating, Round Hall Thomson Reuters, €325
The Law of Company Insolvency, 3rd Edition Michael Forde, Hugh Kennedy, Daniel Simms, Round Hall Thomson Reuters, €295
Modern Irish Competition Law Philip Andrews, Paul Gorecki and David McFadden Wolters Kluwer, €160
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Spring 2015 dsba.ie
Book Awards
Outstanding Contribution to Legal Scholarship Award - in collaboration with Law Society Skillnets
DSBA Practical Law Book of the Year
sponsored by Peter Fitzpatrick & Co Legal Cost Accountants
The Solicitor’s Guide to Marketing and Growing a Business: How to turn Your Legal Practice into a Financial Success Flor McCarthy, Thesolicitorsguide.com, €24.97
Drunken Driving David Staunton, Round Hall Thomson Reuters, €195
The Bloomsbury Professional’s Guide to the Companies Act 2014 General Editor, Dr Thomas B Courtney, Bloomsbury Professional, €195
Landlord and Tenant Acts: Annotations, Commentary and Precedents JCW Wylie, Bloomsbury Professional, €225
The Trade Union and Industrial Relations Acts Anthony Kerr, Round Hall Thomson Reuters, €125
2015 Book Award Winners
Arthur Cox Employment Law Yearbook 2014 Arthur Cox employment law Team, Bloomsbury Professional, €95
The Companies Act 2014: An Annotation Brian Conroy/Crowe Horwath, Round Hall Thomson Reuters, €250
The winner of the Law Book of the Year Award was Professor John Wylie for his book Landlord & Tenant Law, third edition. Pictured left to right: Catherine Guy, Byrne Wallace Solicitors (sponsors); Jennifer Simpson, Bloomsbury Professional; Minister for Justice and Equality, Frances Fitzgerald, TD, and Professor John Wylie
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Planning for the future Niall Cawley provides some useful advice on what solicitors should consider when planning for the future and indeed the inevitable
W
hile many of us are careful to have in place all essential insurance policies including of course our mandatory professional indemnity insurance, office insurance and perhaps the odd life policy or two, it seems that on occasion some of us are remiss in considering the necessity of planning for disaster. Disaster of course may take many forms. While perhaps the term disaster might be a misnomer in terms of the contingencies that we should have regard to, nonetheless we should make provision in so far as we can for the unforeseen event. More correctly we should put in place in our practices a series of plans for contingencies. These contingencies may vary of course, depending on their nature, the relevant practice disruption and the relative need for intervention. Over and above this, the establishment of a network with a colleague or with your colleagues locally will provide you with support, both from the point of view of practical support in terms of going to court and covering for holidays, but also from the point of view of knowledge support and having someone to discuss issues with. To assist your colleague you should have prepared in advance and keep updated on a regular basis the following: a. Contact list of all key contacts; b. Contact details for all of your employees and support providers; c. Details of all of the insurance that you hold in place with access to the systems that you have with essential passwords, etc; d. You could meet regularly for the purposes of exchanging information in a confidential and secure manner.
I would suggest however that the matter could be addressed in the following manner: 1. Manageable contingencies. These type of contingencies would perhaps constitute damage to your office premises through flood or fire or other third-party type calamities. The essential element of course, is that there should be an adequate system in place for the backing up of data, the safe off-site storage of files not being used, the safe storage of files in the office and in particular, the safe storage of title documents that are being held by you on your premises. Fire proof cabinets are a must here. 2. The broader contingency and the one that I wish to primarily address relates to disaster issues which may involve serious illness/injury of the practitioner involved and especially of sole practitioners. A very useful article on this subject was written in the Law Society Gazette in October 2005, by John Costello, then chairman of the Law Society’s Guide and Ethics Committee which covers very ably a number of the issues that have to be addressed and in particular, contains a specimen provision to be inserted into a solicitor’s will in the event of death and I have taken the liberty of setting out below the text of that suggested provision for the appointment of a special executor. What has to be avoided here is one whereby the Law Society would have to step in. With all due respect to the Law Society it clearly wouldn’t be in a position to deal with your clients and your clients’ needs. And the key issue here would be to try to preserve your practice and protect your clients pending your return to full control. As is set out in the earlier article above, the Law Society has no power to take over and run your practice. In other words, you could end up in a
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Spring 2016 dsba.ie Niall Cawley is principal of Niall T Cawley in Blackrock. He is a member of the DSBA Practice Management Committee
situation where for want of prevention at this time, your practice would be wound up or in any case suffer a substantial loss of clients. The essential element here I believe is to have cover from a colleague or colleagues who can step into the breach for you and no doubt you for them. The level of support required would depend on the circumstance, but ideally a mutual arrangement would be put in place whereby colleagues can be furnished with appropriate employee details and would be in a position to furnish support along the following lines in your absence: 1. Off-site support for staff who have difficulties and issues that need addressing; 2. Off-site support for your clients who were referred on by your office where you are unavailable; 3. Locum cover from your colleague pending your return to work. In that regard and in order for a colleague to stand into your shoes, a power of attorney should be drawn up and given to the colleague and lodged with your bank which will be in a position to use same as appropriate, and if need be for the purposes of employing a locum as appropriate; 4. I would suggest that you think proactively about issues relating to a colleague coming into a practice with which they may not be overly familiar; 5. While we have been advised that it is essential that we keep in place certain registers, there is no doubt that the maintenance of up-to-date registers of undertakings, of deeds and in particular of critical dates (with access to their location available to your colleague) would be key elements for any colleagues stepping into a practice on a short-term basis who would be in a position to have regard to any urgent matters that might arise. Again in the context of someone stepping into your practice up-to-date file notes would be an essential element and files should be properly maintained so that anyone perusing the file can hopefully ascertain what the position is without huge difficulty. In the end your practice was built up over many years, was hard won and provides a living for you and your employees. It should be protected. Certain clauses are to be included in the will of a sole practitioner appointing a “special executor” to his practice. These clauses should be inserted after the appointment of the general executors: 1. ______________________________________________ 2. I appoint ______________, solicitor, of ___________, as special executor of this my will in relation to my solicitor’s practice currently carried on by me under the name of ____________ at ______________________(hereinafter called “my practice trustee”) and I declare that this appointment as special executor shall be limited to my practice estate as defined as below.
The essential element here I believe, is to have cover from a colleague or colleagues who can step into the breach for you and no doubt you for them
Practice Management
3. I give to my practice trustee all the assets and liabilities of my practice estate as defined below on trust; to sell my practice as a going concern, if that be possible, upon such terms as my practice trustee shall in his/her absolute discretion think proper; whether by disposal of individual assets by sale or otherwise or the closure of the practice and the collecting in of outstanding fees and the realisation of work in progress and the payment of debts and liabilities of the practice with power to postpone the sale or closure without any liability for loss as if he/ she were beneficially entitled to my practice. Until sale or closure, my practice trustee shall continue to carry on the practice either from the practice address or from his/her own office for the benefit of my estate for so long as he/she considers it beneficial to do so. 4. If my practice trustee does not hold a current practicing certificate from the Law Society of Ireland at the date of my death, he/she shall appoint another solicitor who does, to be my practice trustee in his/her place and that solicitor’s name and address shall be deemed to appear in this my will at clause 2 in the place of the said ___________ as my special executor. 5. My practice estate comprises the following: The goodwill, furniture and equipment of the practice. All unpaid fees, book debts, undertakings, liens, work in progress, money standing to the credit of the practice at my bank or elsewhere and the benefit of all contracts relating to the practice. Any interest in the practice premises. Any property of mine used wholly and exclusively in the practice. All liabilities and debts in connection with the practice at the date of my death. 6. My practice trustee shall hold my practice estate and the annual profits of my practice after the payment of all expenses and the net proceeds of any sale, collection of fees or realisation of assets and work in progress as part of my residuary estate and shall pay the same to my trustees. 7. My practice trustee shall have power to purchase my practice estate, provided that the purchase price shall not be less than the current market value at the date of the transfer and my practice trustee shall first obtain a valuation and report on the proposed transaction from a professional valuer (such valuation and report to be paid for by my practice trustee) and if the valuer does not advise against the transaction for any reason, my practice trustee may proceed, provided that the purchase price shall not be less than the amount of the valuation. 8. My practice trustee shall be entitled to charge and be paid all professional fees or other charges for any business or act done by him, including acts which an executor or trustee could have done personally. 9.______________________(and so on) P the Parchment 15
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Election Lawyers
The recent General Election threw up something of a watershed with a fragmented result across the political divide. There was a near return of Fianna Fail (notwithstanding it being their second worst result in history); a kick in the rear for the Government parties of Fine Gael and Labour and a decent increase in seats for Sinn Fein and a plethora of independents. It was not an election where lawyers came to the fore – with a few exceptions. Kevin O’Higgins sought out our legal heroes and asked what drove some of our colleagues to stand by doing what many of us might consider insane!
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s ever in the Parchment, we wanted to focus on those of our colleagues, particularly in Dublin, who put themselves forward for election. As those of us involved, even on the periphery of political life will know, it takes a particular breed of person to put oneself before the people. It requires huge organisation, energy, commitment and guile. So I salute those of our colleagues who went forward. Political representation can’t and shouldn’t be the preserve of the teaching profession. While colleagues Anne Marie Dermody (Lyons and Dermody, Parnell Square) and Thomasina Connell (Mullany Walsh, Baggot Street) were not successful on this occasion, I know firsthand the vigorous campaigns which each of those ladies ran while at the same time, managing busy practices and workloads. Out in Walkinstown is a sole practitioner, Catherine Ardagh. Having initially made a bad career move in practising as a barrister(!), she sensibly switched and joined Brian O’Reilly in Tallaght before setting up on her own. While she operates as a general practitioner she likes to specialise in telecommunications, employment, media law and judicial review. Catherine was elected as a councillor in the 2014 local elections and stood as a Fianna Fail candidate in the recent General Election, just losing out by a couple of hundred votes. Credit to Senator Catherine Noone (Kent Carty, Parnell Square) who was Leo Varadkar’s running mate for Fine Gael in Dublin West. Catherine didn’t get elected but ran an able race. Spare commiserations too for Labour candidates senior counsel Alex White, outgoing Minister for Communications, who lost out in Dublin/Rathdown and
to Derek Nolan, a trainee solicitor in Galway City and in Mayo, to solicitor Michelle Mulherin, an outgoing Fine Gael TD. But what about the winners? In the Parchment we unabashedly have a Dublin bias. As far as I know throughout the country there may have been one or two solicitors in the race, but I’m not aware of any having been elected other than outgoing Minister for Foreign Affairs, Charles Flanagan in Laois. But I equally laud them for their commitment to their communities and for their contribution to public service. But as I say, we are unapologetically Dublin-centric and we would want to fete our Dublin colleagues who put themselves forward. Nearby in Kimmage is another first-time councillor, Josepha Madigan. Josepha represents the Sillorgan area for Fine Gael on Dun Laoghaire/Rathdown County Council. Josepha stood for Fine Gael in the Dublin/ Rathdown constituency along with fellow former solicitor and Minister for Justice, Alan Shatter. I guess you would have got some odds some time ago as to which of the two would come out on top. Suffice it to say that on a bad day for Fine Gael, Josepha to the great surprise of some, outpolled her famous running mate and was elected. She practises in Kimmage with her brother Patrick and is already the co-author of Appropriate Dispute Resolution (ADR) in Ireland – a Handbook for Family Lawyers and their clients. In recent months she generated mixed views with her stance on traveller sites within her area when she published a leaflet which claimed that building traveller accommodation in her community would be a waste of valuable resources. She resolutely rejected that her stance
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Spring 2016 dsba.ie Kevin O’Higgins is a former president of both the DSBA and the Law Society. He is principal of Kevin O’Higgins Solicitors in Blackrock
News
Josepha Madigan
was anti traveller. Josepha questioned the sense of using the site – reputed to be worth several million euro – merely to house four families. As to her position now as a national parliamentarian and lawyer she says: “I’m a solicitor and a working mum – and people relate to that and know how difficult it is for women to do that. My overarching wish would be to make sure that we don’t waste taxpayers’ money and that we do our best to support the average person out there who is working hard.” Asked about her experience of being on the election trail Josepha says: “Running for election when you are a candidate for a party that is in Government is naturally going to be very challenging. I would imagine it would be easier to be running for a party who is in opposition, particularly as a first-time candidate. Nevertheless, the majority of people that I met and canvassed on the campaign trail were encouraging and positive. Having a good team and support network behind you is essential in seeking public office in an election campaign. Embarking on a political career is still what I would call ‘a baptism of fire’ and not for the faint-hearted.” Congratulations are also extended to senior counsel Jim O’Callaghan who was elected on his second attempt in Dublin Bay South for Fianna Fail and to practising barrister Lisa Chambers, also Fianna Fail elected in Mayo. As Anne Marie Dermody says, solicitors are suited to politics because we are good listeners. And politics seems to be a good fit for a lawyer – marrying the skills of communication, advocacy, empathy and organisation – all being part of the skill set of a political aspirant. One thing for sure though is that it isn’t the material gain that drives them.
Some of us might view politics as a strife of interests masquerading as a contest of principles. The conduct of public affairs for private advantage! One thing’s for sure however, it takes immense guile, hard work and determination. Congratulations to all of our colleagues who ran. P
Catherine Ardagh
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Information Technology
Greg Ryan is programmes director of the DSBA and chair of the Law Society Technology Committee
The Aftermath of Schrems – The Privacy Shield
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n October 6th 2015 the European Court of Justice issued its final ruling in the Schrems -v- The Data Protection Commissioner case, which was dealt with in the last edition of The Parchment. The court invalidated the Safe Harbour arrangement which governed the data transfers between the EU and Europe. At the heart of the case was the question as to whether the United States ensured an adequate level of data protection, which arose from the European Data Protection directive. Under European law the default rule of the European Union is the prohibition of data transfers. The directive provided that the requirement that the transfer of personal data to a third country may only take place where the third country in question ensures an adequate level of data protection. In July 2000 the European Commission adopted a decision declaring that the United States did provide adequate safeguards for data protection, which was based on the Safe Harbour framework. That consisted of data protection principles to which American undertakings may voluntarily subscribe. Many arguments were made against the Safe Harbour principles, and in particular that there was no effective means of enforcement and redress for privacy violations. Further, it unfairly required European citizens to sacrifice their legal right to pursue privacy complaints through their national authorities. In short, there’s a complete lack of accountability. Without enforcement and clear disincentives, there was no satisfactory guarantees that American companies may not violate their declared privacy practices. The European Commission and the United States on February 2nd agreed a new framework for transatlantic data flows, to be known as the EU–US Privacy Shield. This agreement reflected the requirements set out by the ECJ and its ruling on October 6th 2015, and will provide stronger obligations on companies in the US to protect the personal data of Europeans. It also has stronger monitoring and enforcement of the US Department of Commerce and Federal Trade Commission (STC) including through increased co-operation with the European data protection authorities. The new arrangement includes commitments by the US that possibilities under US law for the public authorities to access personal data transferred under the new arrangement will be subject to clear conditions, limitations and oversight, preventing generalised access. Europeans will have the possibility to raise any enquiry or complaint in this context with the dedicated new ombudsperson. Specifically the new arrangement will include the
following elements: • US companies wishing to import personal data from Europe will need to commit to robust obligations on how that personal data is processed and individual rights are guaranteed. As mentioned above, the enforcement authority will be the US Federal Trade Commission. In addition, any US company handling human resources data from Europe has to commit to comply with decisions by the European data protection agencies. • For the first time, the US has given the EU written assurances that the access of public authorities for law enforcement and national security will be subject to clear limitations, safeguards, and oversight mechanisms. These exceptions must be used only to the extent necessary and proportionate. The US has ruled out indiscriminate mass surveillance on the personal data transferred to the US under the new arrangement. There will be an annual joint review which will include the issue of national security access. This will be carried out by the European Commission and the US Department of Commerce, and national intelligence experts from the US and the European data protection authorities will be invited to participate. • Any citizen who considers that their data has been misused under the new arrangement will have several redress possibilities. Companies will have deadlines to reply to the complaints. European data protection agencies can refer complaints to the Department of Commerce and the Federal Trade Commission. In addition, alternative dispute resolution will be free of charge. For complaints and possible access by national intelligence authorities, a new ombudsperson will deal with those. The next step in the process is the preparation of “adequacy decision” by the vice president and one of the commissioners. The commissioners will then obtain the advice of the Article 29 working party, and after consulting, a committee composed of representatives of the member states will be formed. On the other side of the Atlantic, the US will make their own necessary appropriations to put in place a new framework, monitoring mechanisms, and a new ombudsperson. Had this new agreement not been reached, the European data protection agencies had undertaken to completely shut down the flow of information across the Atlantic, which would have had wide scale ramifications, especially for the US companies based in Ireland. There is no time limit on the implementation of the new agreement, but it is hoped that it will be completed this year. P
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Wide Ranging Changes to Family Law Keith Walsh looks at changes which were introduced following the commencement in January 2016 of part of the Child and Family Relationships Act 2015
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ery important modernising changes to the practice of family law, particularly in the area of guardianship, access and custody were introduced following the commencement of part of the Child and Family Relationships Act 2015 on January 18th 2016 by the Minister for Justice and Equality, Frances Fitzgerald. Unmarried fathers, civil partners, cohabiting couples, grandparents and other relatives as well as those in loco parentis were given new rights relating to applications for guardianship, custody and access. Changes to the district, circuit and superior court rules were introduced on the same day in order to give affect to the changes in the Act. The recognition of parentage in cases of donor-assisted human reproduction will have to wait as these parts of the 2015 Act have not yet been commenced. New rights for civil partners and cohabiting couples to adopt jointly have not yet been introduced. Sections which would amend the Adoption Act 2010 have not yet been introduced, although they are contained in the Act.
A Summary of the Main Changes to Guardianship, Custody, Access and Maintenance, effective from January 18th, 2016
2. How the court must determine the best interests of the child and the importance of hearing the voice of the child The court must have regard to any factors or circumstances which it considers relevant to the child and his or her family. A non-exhaustive list of factors which might be included in this consideration are provided, but no indication is given as regards the weight to be given to each individual factor. One of the factors mentioned is the ascertainable views of the child concerned. This factor will be very significant as it also has a constitutional basis following the passing of the 31st referendum and the insertion of the new article 42A into the constitution which states in subsection 1° inter alia ‘provision shall be made in law that in the resolution of all proceedings concerning the adoption, guardianship or custody of, or access to, any child, the best interests of the child shall be the paramount consideration’ and ‘provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1° of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child’.
1. Best interests of child to be paramount In dealing with applications for guardianship, custody or access regarding a child, or dealing with the administration of any property belonging to a child or held on trust for a child or the application of the income thereof, the court must regard the best interests of the child as the paramount consideration. The best interests principle was inserted into the constitution as part of the 31st referendum and is given effect in legislation by Section 45 of the 2015 Act which inserts a new section 3 into the Guardianship of Infants Act 1964.
Other factors include - The benefit to the child of having a meaningful relationship with each of his or her parents and with the other relatives and persons who are involved in the child’s upbringing and, except where such contact is not in the child’s best interests, of having sufficient contact with them to maintain such relationships. - The physical, psychological and emotional needs of the child concerned taking into account the child’s age, stage of development and the likely effect on him or her of any change in circumstance.
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Spring 2016 dsba.ie Keith Walsh is a former President of the DSBA and principal of Keith Walsh Solicitors
- The history of the child’s upbringing. - The child’s religious, spiritual, cultural and linguistic upbringing and needs. - The child’s age and any special characteristics. - Any harm which the child has suffered or is likely to suffer and the protection of the child’s physical and psychological wellbeing. - Proposals made for the child’s custody, care, development and upbringing and for access to and contact with the child. - The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent and to maintain and foster relationships between the child and his or her relatives. - The capacity of each person in respect of whom an application is made under the Act to care and meet the needs of the child, to communicate and co-operate on issues relating to the child and to exercise relevant powers, responsibilities and entitlements to which the application relates. Section 63 of the 2015 Act inserts a new part V into the 1964 Act which deals with the best interests of the child and this new part contains a new section 31 which sets out the above factors. 3. How will the views of the child be ascertained ? The court must facilitate the free expression by the child of their views and must ensure tha those views are free from undue influence. The court can make an order appointing an expert to prepare a report regarding any matter affecting the child’s welfare and/or to determine and convey to the court the views of the child. The expert may be called as a witness by either party or by the court. Section 63 of the 2015 Act inserts a new section 32 into the new part V of the 1964 Act which deals with the appointment of experts and their reports.
Family Law
4. Guardianship defined Prior to this Act, guardianship was understood to entitle the guardian to have a say in the major decisions in a child’s life – where they reside, go to school, healthcare issues. Section 44 of the Act inserts a new section 6C(11) into the 1964 Act which sets out the rights and responsibilities of a guardian: a. To decide on the child’s place of residence. b. To make decisions regarding the child’s religious, spiritual, cultural and linguistic upbringing. c. To decide with whom the child is to live. d. To consent to medical, dental and other health-related treatment for the child. e. Miscellaneous issues including passport formalities. f. To place a child for adoption and consent to an adoption of the child. 5. ‘Automatic’ guardianship for unmarried fathers but time only starts to run from January 18th 2016 The natural father for the first time can automatically become the guardian of his child if he lives with the child’s mother for at least 12 consecutive months, three of which must be after the birth. The earliest date this living together can start is January 18th 2016. Although the father in this situation is a guardian he can (and should) seek a formal declaration from the court and if the court finds, on the balance of probabilities, that the living together test has been satisfied then the court must make a declaration that they are a guardian of the child. Section 49 of the 2015 Act inserts new sections 6B(2) & (3) and a new section 6F into the Guardianship of Infants Act, 1964.
Unmarried fathers, civil partners, cohabiting couples, grandparents and other relatives as well as those in loco parentis were given new rights relating to applications for guardianship
6. Persons who are not parents can now apply for guardianship A person can now apply to court for guardianship if the Parchment 23
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they are not the parent of the child in any one of the following circumstances: - The applicant is married to or is in civil partnership with the parent of the child. - The applicant has cohabited with the child’s parent for over three years and they have shared responsibility for the child’s day-to-day care for more than two years. - The applicant has been responsible for the child’s dayto-day care for over a year and no parent or guardian is willing to assume the responsibilities of guardianship. Section 49 of the 2015 Act inserts section 6C into the 1964 Act. 7. New temporary guardians can be appointed by the court A guardian may nominate a temporary guardian for their child if they are suffering from a serious illness or injury which effectively stops them from exercising their guardianship role. This temporary guardian would be appointed by the court and the court may limit the responsibilities the temporary guardian can exercise, presumably based on the input of the guardian and the circumstances of the particular case. Section 49 of the 2015 Act inserts section 6E into the 1964 Act. 8. Relatives and other persons can now apply for custody - If the child’s parent’s spouse, civil partner or cohabitant has shared parenting of the child for more than two years, they may apply for custody of the child. The cohabitant must in addition be a cohabitant for at least three years in order to be eligible to apply for custody. - An adult who has been in loco parentis for more than one year in a situation where no parent or guardian is willing or able to take on the powers and responsibilities of guardianship. - A grandparent, brother, sister, uncle or aunt of the child (defined in the act as a ‘relative’) can apply for custody where they are an adult and they have had day-to-day care of the child for at least 12 months and there is no parent or guardian willing or able to take on the powers and responsibilities of guardianship. - The consent of all guardians of the child is necessary before a court will grant an order for custody, but this consent can be dispensed with by the court if it is satisfied that it’s in the best interests of the child to do so. Section 57 inserts section 11E into the 1964 Act. 9. A relative can apply for access and custody; someone who resides with or who has resided with the child can apply for access and custody to the child; and the spouse, civil partner and cohabitant (of the parent) may apply for custody - Previously, apart from the parent, only a grandparent could apply for access to the child and this was a two-stage process where the grandparent first had to seek and obtain the leave of the court to make an application for access. The new Act includes brothers, sisters, uncles and aunts as well as grandparents in the category of those who can now apply for access and has expanded this to now also include a right to apply for custody and has simplified the procedure by abolishing the requirement to seek leave. - A person with whom the child lives or formerly lived may apply for access to the child. A person may apply
for custody if they have provided for the child’s care for more than 12 months in circumstances where the child has no guardian or parent who is willing or able to exercise the rights and responsibilities of guardianship in respect of the child. - The court in deciding whether to grant access to relatives or those in loco parentis must examine the applicant’s connection with the child, the risk of the application disrupting the child’s life to the extent that the child would be harmed by it, the wishes of the child and whether it is necessary to make an order for access. - The spouse or civil partner of the parent as well as cohabitants who have lived with the parent for more than three years may apply for custody provided they have shared day-to-day responsibility for the child’s care. - The court cannot make an order for custody for the above categories of person without the consent of each guardian of the child but the court may dispense with this consent if it is satisfied it is in the best interests of the child to do so. Section 55 of the 2015 Act inserts a new section 11B into the 1964 Act(re: access) Section 55 of the 2015 Act inserts a new section 11E into the 1964 Act(re: custody) 10. Additional enforcement orders where there is a denial of access or custody (where an order for access or custody has been made) The court has been given new powers of enforcement such as to order compensatory time with the child, to reimburse expenses and to compel one or more parties to attend parenting programmes, family counselling or receive information on mediation where one of the parties unreasonably denies the other access or custody rights. An order for custody or access must be made before any enforcement order can be made. Section 60 of the 2015 Act inserts sections 18A to 18D into the 1964 Act dealing with enforcement. 11. Maintenance responsibility of a cohabiting partner for their partner’s child In cases where a cohabiting partner is guardian of the other partner’s child then the court can, on application to it, make an order for maintenance in respect of the child against the partner who is a guardian of the child (but not the parent). Section 73 of the 2015 Act inserts section 5B into the Family Law (Maintenance of Spouses and Children) Act 1976. 12. More rights for a dependent child of civil partners The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 has been amended principally to give the dependent child of civil partners similar legal protections to those enjoyed by a child born to married parents and this includes a maintenance obligation where the child is not the child of one of the partners. Section 135 of the 2015 Act inserts a definition of ‘dependent child’ into section 2 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (the 2010 Act). Section 140 of the 2015 Act inserts an amendment to section 45 of the 2010 Act which permits maintenance orders to be made in respect of dependent children as well as the civil partner. Sections 135-150 and 151-172 of the 2015 Act deal with amendments to the 2010 Act.
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Extracts from Easter 1916 In 2005 the Parchment published the following article by Stephen P Maher which tells the fascinating story of his grandfather, Daniel C Maher, a Dublin solicitor who had a very famous client back in 1916 – one Patrick Pearse. On Ash Wednesday just before the Easter Rising, Maher made Padraig Pearse’s last will and testament as the story here reveals
O
n the Wednesday before Easter in 1916 Patrick Pearse called to see my grandfather Daniel C Maher at his office in Westland Row. The Pearse family and the Maher family had been both friends and neighbours for many years and indeed Liam (William) Pearse was a classmate of my grandfather at the Christian Brothers in Westland Row. Patrick Pearse was a couple of years older but was a friend. He wanted to make his will and he also handed my grandfather a package and asked him to give the package to his mother if anything happened. Dublin was full of rumours at that time about a possible insurrection and my grandfather did specifically ask him what was happening but Patrick told him that it was best that he didn’t know. They spoke at length, he made his will and my grandfather’s only request to him was that Liam should not be involved, as he knew Liam had never been involved in the Republican movement as such at that time. On Easter Sunday from my grandfather’s house on the Clontarf Road, quite near the stone railway bridge which passes over the Fairview Park towards Howth, gunfire could be heard and within a matter of minutes that day, a British Army machine gun post was put on the bridge and no-one was allowed pass into the city. Daniel C Maher was extremely worried as he knew there was a package in the office and did not know what the contents were – and he was concerned that if the
office was searched, it would be found and he would be arrested. Events took over and history knows well what happened that week in the GPO. In or about Sunday afternoon, Liam Pearse who lived in what is now Pearse Square in Dublin heard the gunfire and decided to walk down what is now Pearse Street towards Sackville Street (now O’Connell Street) to see what was happening along with many others, and got caught in the crossfire. The only safe place to go was in a side window of the GPO where he spent the next four or five nights bandaging wounded Irish volunteers. When the surrender took place, it is well known that Patrick Pearse surrendered to the British Army outside Conway’s pub opposite the Rotunda Hospital in Parnell Street. All of the wounded and able-bodied men in the GPO, or what remained of it, were lined up and asked their names. Of course Liam Pearse gave his name as Liam Pearse and was immediately presumed to be the brother of Patrick Pearse, the leader. He was marched off to Kilmainham Jail where the signatories of the Proclamation and other leaders were incarcerated and court-martialled despite the fact that he had no hand, act or part in the planning of the 1916 Rising. To the best of my knowledge Patrick Pearse was shot on or about the 3rd of May 1916 and Liam was executed on the following day.
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Spring 2016 dsba.ie Stephen P Maher is a partner at O’Mara Geraghty McCourt. In 2008, that firm merged with the practice of Daniel C Maher Solicitors which was founded by Daniel C Maher in 1905 and was an active practice in Dublin city for over 100 years
Approximately a week later Mrs Pearse called to see my grandfather and he handed her the package. Having received it and spoken to him after he had expressed his deepest sympathy for his old friends, she left the office and to this date no-one in our firm knows exactly what was in the package. Many enquiries were made over the last 90 years from universities and historians and it was always presumed by my late grandfather and my father, that they were poems and writing that he had composed. The only document that did come into our possession was the letter Patrick Pearse wrote to his mother on the morning of his execution. The original letter is in the Pearse Museum at St Enda’s in Rathfarnham, Dublin and the only known copy to my knowledge, was made by my great aunt, who was a personal friend to the late Senator Margaret Pearse, sister of Patrick and William. The letter would appear to give the impression that Patrick Pearse was not aware that his brother had been court-martialled and was indeed going to be executed shortly after himself. My late father John acted as a trustee of the Pearse estate for many years along with Eamonn de Barra and in or about 1969, handed over St Enda’s to the State according to the terms of the will of the late Senator Margaret Pearse. The property was received by the President, Eamon de Valera at that time.
History
Dublin was full of rumours at that time about a possible insurrection
Souvenir book from St Enda’s signed by Eamon de Valera and John Maher
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This is the death I should have asked for if God had given me the choice of all deaths – to die a soldier’s death for Ireland and for freedom
Copy of Patrick Pearse’s Last Letter Kilmainham Prison Dublin 3rd May 1916 My dearest mother I have been hoping up to now that it would be possible to see you again, but it does not seem possible. Goodbye dear, dear mother. Through you I say goodbye to Wow-wow, Willie, Miss Byrne, Miceal, cousins Maggie and everyone at St Enda’s. I hope and believe that Willie and the St Enda’s boys will be safe. I have written two papers about financial affairs and one about my books, which I want you to get. With them are a few poems which I want added to the poems of mine in M.S. on the large bookcase. You asked me to write a little poem which would seem to be said by you about me. I have written it and one copy is at Arbour Hill Barracks with the other papers, and
Father Aloysius is taking charge of another copy of it. I have just received Holy Communion. I am happy except for the great grief of parting from you. This is the death I should have asked for if God had given me the choice of all deaths – to die a soldier’s death for Ireland and for freedom. We have done right. People will say hard things of us now, but later on they will praise us. Do not grieve for all this, but think of it as a sacrifice which God asked of me and of you. Goodbye again, dear, dear mother. May God bless you for your great love for me and for your great faith, and may he remember all that you have so bravely suffered. I hope soon to see papa, and in a little while we shall be together again – Wow-wow, Willie, Mary, Brigid and mother, goodbye. I have not words to tell of my love for you and how my heart yearns to you all. I will call to you in my heart at the last moment. Your son Pat
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As a result of the recommenda�ons of the Cons�tu�onal Conven�on in March 2014, the issue of cons�tu�onal protec�on for socioeconomic rights is once more up for debate. Part of the backdrop to these ISBN: 9781910393055 recommenda�ons was the opposi�on of the Irish Pages: 600 Court to the use of li�ga�on to iden�fy such Supreme Cost:rights. €65.00 inc. carefully P&P In this argued book, Gerry Whyte As a result of the recommenda�ons of the defends the cons�tu�onal and poli�cal legi�macy of Cons�tu�onal Conven�on in March 2014, the issue of cons�tu�onal protec�on for socioeconomic rights is such li�ga�on. He argues that one can infer a once more up for debate. Part of the backdrop to these commitment to social inclusion from the text of the recommenda�ons was the opposi�on of the Irish Supreme Court to the use of li�ga�on to iden�fy such Cons�tu�on and that where the poli�cal system has rights. In this carefully argued book, Gerry Whyte failed to address the needs of marginalised groups, the defends the cons�tu�onal and poli�cal legi�macy of ISBN: 9781910393055 He argues that inclusion, one can infer a suchfor li�ga�on. As a result of the recommendations Constitutional promoting social most of the appropriate agency for nonetheless policing useful, that mechanism commitment to social inclusion from the text of the Pages: 600 in March 2014, the issue of constitutional protection Convention capable of requiring the political system to address issues and that where the poli�cal system has cons�tu�onal norm is the judiciary. of social exclusion that wouldCons�tu�on for socio-economic rights is once more up for debate. Part of otherwise beneeds ignored and, ingroups, the Cost: €60.00 failed to address the of marginalised ISBN: 9781910393055
most appropriate agencysubstantive for policing that the backdrop to these recommendations was the opposition appropriate circumstances, capable of achieving Pages: 600 norm is the judiciary. Whyte also evaluates the effec�veness of li�ga�on in part of thecons�tu�onal of the Irish Supreme Court to the use of litigation to identify change. InCost: the€60.00 final book, the author examines the role such rights. In this carefully arguedfor book, Gerry Whyte defends groups of the law generally social exclusion, with particular obtaining improved State support a number of marginalised children with in tackling Whyte also evaluates the effec�veness of li�ga�on in the constitutional and political legitimacy of such litigation. He reference to Ireland. modelsgroups of legal obtaining improvedHe Stateexamines support for a different number of marginalised children with learning difficul�es, children from dysfunc�onal families, social welfare claimants, learning difficul�es, families, socialcapable welfare claimants, argues that one can infer a commitment to social inclusion from aid and concludes thatchildren while from the dysfunc�onal legal system is not of and li�gants seeking free legal aid. He concludes that li�ga�on is a limited, Travellers li�gants seeking aid. concludes that li�ga�on isTravellers a limited, the text and of the Constitution andfree thatlegal where theHe political system generating radical change in society, the strategic model of legal but nonetheless useful, mechanism for promo�ng social inclusion, capable of requiring buthas nonetheless useful,the mechanism for promo�ng socialthe inclusion, oftherequiring failed to address needs of marginalised groups, most capable aid is capable of achieving limited nonetheless poli�cal system to address issuesbut of social exclusion thatworthwhile would otherwise be ignored and,be in appropriate circumstances, capable of achieving substan�ve change. agency to foraddress policing that constitutional norm is thethat would social reforms. theappropriate poli�cal system issues of social exclusion otherwise In the part of thethe book, the author the role of theof lawthe generally judiciary. In addition tofinal updating book sinceexamines the publication firstin ignored and, in appropriate circumstances, capable of achieving substan�ve change. tackling social exclusion, with par�cular reference to Ireland. He examines different Whyte also evaluates the effectiveness of litigation in obtaining edition in 2002, theaid second edition newsystem material models of legal and concludes thatcontains while the legal is not on capable of In improved the final State part of the book, the author examines groups the role law generally in change support for a number of marginalised – of thethe use of European in inpublic litigation before the of genera�ng radicallaw society,interest the strategic model of legal aid is capable achieving but nonetheless worthwhile reforms. In addi�on to upda�ng tackling social with par�cular to Ireland. He examines different children with exclusion, learning difficulties, childrenreference from dysfunctional Irish courts andlimited on the experience of thesocial South African courts in the book since the publica�on of the first edi�on in 2002, the second edi�on contains families, Travellers and litigants seeking the constitutional guarantees of socio-economic rights models of social legal welfare aid andclaimants, concludes that while the legal system isapplying not capable new materialof on the use of European law in public interest li�ga�on before the Irish free legal radical aid. He concludes litigation a limited, model but in and theonpost-apartheid Constitution. courts the experience of the South African courts in applying the cons�tu�onal genera�ng change inthat society, theisstrategic of legal contained aid is capable of guarantees of socioeconomic rights contained in the postapartheid Cons�tu�on.
achieving limited but nonetheless worthwhile social reforms. In addi�on to upda�ng the book since the publica�on of the first edi�on in 2002, the second edi�on contains new material on the use of European law in public interest li�ga�on before the Irish courts and on the experience of the South African courts in applying the cons�tu�onal guarantees of socioeconomic rights contained in the postapartheid Cons�tu�on.
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Kiara Daly is an in-house legal counsel and legal recruitment consultant with Morgan McKinley. She is also a member of the DSBA Younger Members’ Committee
Careers
The Advantages of Private Practice Kiara Daly reminds those in private practice of its advantages, which can sometimes be forgotten
There is something really nice about working in an environment where everyone has so much in common
O
ne big talking point among my peers has always been the pros and cons of in-house versus private practice. I find it interesting that people tend to see each career path as mutually exclusive, and that in-house types wouldn’t like practice and vice versa. I don’t look at it this way. Having worked in private practice (large and small) and also in-house, I have a good insight into both career paths and would generally tell my candidates that each route offers its own advantages. I have explored the benefits of private practice below: 1. You are surrounded by your peers. This is not to be sniffed at. Most solicitors have come through a similar academic and career path. Everyone has faced the dreaded FE-1s, everyone went a bit mad in Blackhall and everyone now struggles with their massive workloads. There is something really nice about working in an environment where everyone has so much in common. As much as we all try to avoid it, we love to chat about legal stuff (and share horror stories!) with each other when we are having lunch or out for a drink. It is only when you step away from practice that you will really miss this outlet. 2. Your clients (generally) view your work as a service. When you are being billed for something you tend to value it. Law firms pride themselves on their service levels and rightly so. The market for legal advice is extremely strong at the moment and Ireland is lucky
enough to house a superb choice of legal providers. Be it small, medium, large, full service or boutique firms, standards are extremely high and practitioners can be proud to be a part of that. 3. You have a defined career path. Each law firm has a system for progression. It is good to be able to plan your next promotion, pay rise, bonus and so on. If you cannot see this happening for you in your current firm, you can consider speaking to another firm which might have a visible path for you. 4. Unless you are very specialised, you will likely work with clients from a range of industry sectors. You may be looking after the legal angle but you will need to understand the driving commercial factors behind each transaction/case. Not only does this lead to continued learning but results in a varied and interesting worklife. I will go through the benefits of in-house in my next article and for some people there can be good reasons to look at a move. However, I should mention that a side effect of point 1 above can mean that people are also quick to highlight the cons of practice to each other. This is natural in any environment where we are surrounded by our peers, but it is important to keep our own priorities in mind. Faraway fields really can be greener so don’t let others having a bad day make you question your own path. Everyone has different plans and it is important to choose the path that is right for you. P
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Overcrowding in Irish Emergency Departments – are there medico-legal implications? Almost a quarter of the Irish population will attend an emergency department (ED) in 2016. Dr Jean O’Sullivan assesses the situation regarding overcrowding in our hospitals and offers a five-step solution
1
.2 million people come to our EDs every year seeking urgent care for an accident, an injury or a sudden acute illness. Whilst individual patients never plan or schedule to have an ED visit, attendance levels are entirely predictable. This is true globally. It should therefore be possible to staff, organise and deliver safe emergency care in a timely, dignified fashion. Instead we have a system where many severely injured or acutely unwell patients leave EDs without being seen. Many others do not receive essential lifesaving treatment within the first golden hour. Patients with strokes, heart attacks and suicidal ideation have to queue for care that is entirely predictable. Why? Up to 68-72% of patients who attend EDs are discharged home following their specialised care from emergency medicine (EM) doctors and nurses. The remaining 28-32% of patients who attend an ED will require hospital admission for further tests or treatment after they have completed their emergency medicine treatment. Instead of these patients being moved into a ward once the clinical decision to admit them has been made, Irish hospitals practise what is known as emergency department boarding. These patients who have finished their emergency care are left queueing for a hospital bed in the ED even though they are no longer under the care of the EM team. This creates what is referred to as entry block. Patients trying to access emergency care with asthma, meningitis, hip fractures or heart failure are left in ambulance queues or waiting rooms whilst patients who no longer need emergency attention fill the treatment bays of the ED.
Other admitted patients are often left in non-clinical areas. They can be left without adequate cardiac monitoring, without oxygen, without adequate access to sanitation and hygiene, without adequate nursing care and without any dignity or privacy. Medical errors increase significantly in overcrowded EDs. Drug errors increase, x-rays are misread, patients are not properly examined without access to privacy, and serious infections like MRSA and TB spread faster. This has been proven repeatedly by international peer reviewed research. In 2012 the then minister for Health, Dr James Reilly launched the HSE Emergency Medicine Programme. Under this programme, patients were promised that within six hours of registering at any Irish emergency department, they would either have completed their entire emergency care and be sent home or they would be in a ward bed, if they needed admission. However despite this promise, in 2015 alone, almost 100,000 patients were left lying on trolleys for unsafe and prolonged periods of time. This is not 100,000 young people attending Electric Picnic, but 100,000 acutely unwell or injured people who are being denied safe and dignified care. At least three centenarians were left on trolleys for over 24 hours each, in 2015. Exposing frail, elderly, acutely unwell patients to 24 hours of light and noise without privacy or confidentiality is a form of organised institutional abuse of the most vulnerable. In many regimes sleep deprivation and sensory overload is considered a form of torture. Those who turn a blind eye to it are guilty of colluding in this abuse.
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Spring 2016 dsba.ie Dr Jean O’Sullivan is a consultant in emergency medicine at the Adelaide & Meath Hospital, Tallaght. She co-runs Medico Legal Ireland, which provides an expert medical report service
In 2012 a damning HIQA report outlined clearly the dangers to patients from overcrowding. Another taskforce was set up by Minister Reilly to implement nationally the findings of this report. Despite this report, hospitals continue to knowingly place patients in dangerous environments. Why? HIQA has no power of serious sanction against corporate governance failure in hospitals which is leading to a serious institutional risk to patients’ lives. The Irish Association of Emergency Medicine has calculated that 350 people die every year as a direct result of ED overcrowding. Almost a death a day is caused by overcrowding. Shouldn’t this constitute corporate manslaughter? Would we react differently if a bus company or an airline killed a passenger a day? Elderly patients often feel as though they cannot complain about being left on a hard trolley in a nonclinical area because they depend entirely on the hospital for their future care. The relationship between patients and the public health service is not an equal one. Patients need advocates. What role can the court system play in advocating for an end to the reckless endangerment of patients’ lives?
Medical - Legal
The Irish Association of Emergency Medicine has calculated that 350 people die every year as a direct result of ED overcrowding. 1.To save 350 lives in 2016 the HSE can immediately implement the full capacity protocol. This is evidenced based and internationally recommended. The full capacity protocol means that the volume of extra patients risk is spread throughout the hospital whilst protecting critical care areas like maternity delivery rooms, operating theatres, emergency departments and intensive care units. Fears that this will normalise overcrowding on wards are unfounded. Research from Stoneybrook Hospital in New York proved that the practice actually made the whole hospital more efficient in their utilisation of beds. It is cost neutral. 2. Link healthcare management pay to performance. The NHS introduced a four-hour target to end ED overcrowding. To achieve this, 30 hospital CEOs were removed from their posts. The HSE introduced a six-hour target back in 2012. Whether a hospital achieves this target or not has little consequence to middle managers. Their pay remains the same and some managers in the most overcrowded of our hospitals have even been the Parchment 33
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Company directors are regulated in the commercial sector, but Ireland still does not apply any regulation to a “business” that costs the State billions per annum, regardless of its productivity
allowed to keep top-up payments, funded by the tax payer. 3. Introduce a code of corporate conduct for healthcare mangers. Doctors and nurses are regulated by their professional bodies and are prohibited from practising if their performance falls below a required professional standard. And rightly so. No government has ever been brave enough to apply the same regulation to our healthcare managers. The Irish healthcare system has hospital managers appointed without open competition, without transparent qualification and without any consequences for reckless conduct. In 2015 alone we have seen healthcare scandals involving equipment procurement procedures, top-up payments and the appalling failure of managers to heed the concerns for patient safety from the bereaved families. Company directors are regulated in the commercial sector, but Ireland still does not apply any regulation to a “business” that costs the State billions per annum (of tax payers’ money) regardless of its productivity. 4. Make the reporting of clinical risk a mandatory part of maintaining professional registration with the Medical Council and An Bord Altranais. At present doctors and nurses have a moral and ethical duty to disclose risk but they are not obliged
to do so by their regulatory bodies in order to keep their yearly registration. In the same way that the mandatory reporting of suspected child abuse is now required of all healthcare professionals, the reporting of obvious dangers to patient safety should carry the same onus. Silence normalises neglect. Many healthcare staff feel powerless and afraid to speak up. If senior doctors across the country are challenged in raising patient safety concerns, then there is little hope that frail, elderly patients feel empowered enough to demand safer, more dignified care. By introducing mandatory reporting of risk as part of the Medical Council and An Bord Altranais requirements to maintain registration, any fear of whistleblower intimidation will be removed. 5. Has the causal link between poor clinical outcomes and overcrowded EDs been examined in the courts? In medical negligence litigation we are familiar with the principles set out in Dunne v the NMH 1989 and the Bolam test. Should the courts be asking “what is a hospital environment of reasonable standard? And what role does corporate governance failure play in poor clinical outcomes for patients and their families?”. Solicitors and barristers have a powerful opportunity to advocate for safer, more dignified care for their clients by exploring the link between hospital overcrowding and poor clinical outcomes. P
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CGT Withholding Tax and Clearance Certificates Conveyancers will be all too familiar with the withholding tax provisions which require a purchaser to withhold 15% of the consideration that he pays for an asset if it is one of the assets listed in S. 980 Taxes Consolidation Act 1997 (TCA 97) and the consideration exceeds a certain threshold. Brian Broderick assesses the position following a recent increase in the threshold
T The value of a shareholding depends on many factors – the nature/ size of the shareholding passing, profitability of the business and its future prospects in the marketplace at the time of the transaction
he general threshold is €500,000 but solicitors will have welcomed the increase to €1m with effect from the start of 2016, if the asset disposed of is a house. “House” in this context “includes any building or part of a building used or suitable for use as a dwelling, and any out office, yard, garden or other land appurtenant to or usually enjoyed with that building or part of a building”. (s. 372AK TCA 97).
Assets Subject to Withholding Tax Rules The assets subject to withholding tax are: • Irish land and buildings. • Minerals and mineral rights in Ireland. • Exploration or exploitation rights within the limits of the Irish Continental Shelf. • Unquoted shares in a company deriving their value or the greater part of their value directly or indirectly from the assets listed above. • Unquoted shares, acquired under the relief of s584 (rollover relief) in exchange for shares specified above. • Goodwill of a trade carried on in Ireland. If VAT arises on the sale the VAT-inclusive figure is used to see if the payment exceeds the threshold and to calculate the 15% withholding tax. Example Peter who is not tax resident in Ireland sold a property to Stephen for €2,500,000 plus VAT of €337,500. He did not have a CGT clearance certificate, so Stephen should withhold €425,625 (15% of the total payment of €2,837,500) at the closing of the sale. The fact that there may be no CGT liability for the vendor (for example, if the disposal is a principal private residence and there is full relief from CGT) does not prevent the withholding tax applying, so a CGT certificate will still be required by the purchaser if the consideration paid is over the threshold. If shares are being acquired the question of whether
the value of the company comes from the property it holds may not be clear-cut, as there are many different approaches that can be taken to the task of valuing a company. Revenue in the CAT manual indicates that: “Valuation is not an exact science. The value of a shareholding depends on many factors – the nature/size of the shareholding passing, profitability of the business and its future prospects in the marketplace at the time of the transaction”. There is no procedure for getting a formal opinion from Revenue as to what assets the company share value is derived from. One practical solution is for the company’s auditors to value the shares and an auctioneer to value the property it holds, so that the auditors can confirm that the shares do not derive their value, or the greater part of their value, from the S. 980 assets.
Tax Clearance Certificate The clearance certificate (form CG50A) is available where: • The vendor is resident in the State; • There is no capital gains tax due on the disposal, or; • The capital gains tax due has been paid. A current general tax clearance certificate can be accepted from the vendor’s solicitor instead of a form CG50A. Revenue will not issue a CGT clearance certificate after closing, so an undertaking to produce a clearance certificate post-closing, should not be offered or accepted. Where the total consideration on a disposal of a partnership asset exceeds €500,000, one application is made on behalf of the partnership, generally to the tax office of the first-named partner. The application should list the names of all the partners and their PPS numbers. However, if the asset is disposed of by a coownership, each co-owner only needs a certificate to the extent that his share of the consideration is greater than €500,000.
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Spring 2016 dsba.ie
Taxation
Brian Broderick is a tax practitioner at O’Hanlon Tax Ltd
Consideration The legislation applies to actual payments, so if there is a notional consideration used for CGT purposes such as a gift between related parties which is deemed to be a sale at market value, there is no withholding tax obligation. This should be distinguished from the situation where there is real but non-monetary consideration; for example an exchange of one property in return for another. In such a case there are two separate obligations on the person acquiring the asset: • An obligation to return information to the Revenue on the transaction, and; • An obligation to pay withholding tax of 15% on the estimated value of the asset acquired if a clearance certificate is not produced by the transferor of the property. Example Tom gave a commercial unit valued at €1,000,000 to his brother James in return for shares in a trading company James owns, which derives all of its value from its trade. The shares are also worth €1,000,000. James is the purchaser of the commercial unit which is a specified asset, and he is paying in kind so he needs to notify Revenue of the purchase and pay €150,000 to Revenue if Tom does not produce a clearance certificate on closing. If the clearance certificate will be not available, the funding of the payment to Revenue should be agreed and recorded in the contract. Revenue will credit the €150,000 against any CGT liability that Tom has on the sale. The asset Tom is acquiring (trading company shares) is not subject to withholding tax as the shares are not a specified asset.
Purchaser Obligations Where S. 980 TCA applies and the vendor does not produce a valid tax clearance certificate, the purchaser must withhold 15% CGT and, within 30 days from the date of closing:
• Deliver to the Revenue Commissioners an account of the payment, the amount deducted and the amount retained from the payment, and; • Pay to the Collector-General an amount of capital gains tax equal to 15% of the amount paid to the vendor for the acquisition of the asset.
Non-Resident Vendors Technically, a non-resident vendor who makes a gain on the sale of a property should pay CGT if he wants a clearance certificate. However, the Revenue will issue a clearance certificate if the solicitor acting for the nonresident vendor provides an undertaking that he will discharge any CGT liability arising on the disposal, from the sale proceeds. As the solicitor acting for a non-resident vendor is secondarily liable for any CGT arising on the sale, the solicitor already has a tax incentive to ensure that the nonresident client files his CGT return and pays any tax due. Most solicitors acting for non-resident vendors will agree, as part of the retainer, that the sales proceeds will not be released to the client until the tax has been dealt with in a satisfactory manner. A procedure has been agreed between the Law Society and the Revenue where, after a disposal has been notified to Revenue by a solicitor and he obtains a “Letter of No Audit”, then the Revenue will not subsequently pursue the solicitor for any unpaid taxes of the vendor. The recommendation is that this procedure is followed, whether or not a CGT clearance certificate is required.
Conclusion
The increased threshold of €1,000,000 for houses will not reduce solicitors’ administrative requirements on those assets falling within S. 980 TCA 97, but the increased threshold will reduce the number of transactions which fall within the withholding tax legislation and lessen the administrative burden on solicitors to some extent. P the Parchment 37
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Caroline Crowley Caroline Crowley is a solicitor in the commercial property department at Beauchamps Solicitors. She recently won a bronze medal on her international debut for Ireland at the European Cross Country Championships in Hyeres, France. Caroline is a daughter of the late Vincent Crowley and Fidelma Crowley of Collins Crowley Solicitors, both of whom passed away in 2014. Julie Doyle managed to catch up with the cross country winning athlete
What made you choose law and what has been your career path to date? I wasn’t sure what I wanted to do at 18 years of age. I knew I wanted to go to Trinity College and that was it. Maths was my strongest subject at school and I was close to choosing engineering as my undergraduate degree. It was my second choice on the CAO. I settled on law in the end as I thought it was a good degree to have and that I could make the long-term decision about my career on finishing my degree! I worked in Vincent & Beatty Solicitors for most of my traineeship where I gained extremely valuable all-round experience. I qualified as a solicitor in December 2014. I had an excellent training master, Walter Beatty Jnr, who taught me an enormous amount which was a great kickstart to my career. I then moved to Collins Crowley Solicitors, a firm of which my dad Vincent, was a founding partner and where my mum, Fidelma, worked as a solicitor. It was during my time there that both my mum and dad passed away suddenly, in January and November 2014 respectively. I now am working in the commercial property department of Beauchamps
Solicitors. I have been working here for approximately nine months however, I feel like I’ve been here years with all that I have learned. There is a very strong support network within the firm and a great atmosphere. What made you choose property law in particular? My mum was a brilliant conveyancer and she loved nothing more than to delve into boxes of title deeds and resolve defective title issues. I could never understand her passion as I was growing up! Since I’ve started working in Beauchamps however, I found I really love the transactional aspect of the work, understanding and solving the complexities that can arise in the course of a transaction. Nothing is straightforward in property law and as a result, one’s mind is constantly challenged and engaged. How would you describe the differences between a small, family-run firm and a larger corporate firm? Having moved from a small, family-run firm to a large corporate firm I believe the biggest difference is resources and having the additional support staff which helps me to work more efficiently. Who has been the biggest influence on
your legal career to date? Both of my parents without a doubt. If they had different careers, I wouldn’t have pursued a career in law. I like to think they’d be proud I followed in their footsteps. When did you begin to run as a hobby? And at what stage did you realise that your hobby was leading you into serious competitions? I never really considered running a hobby before I joined my athletic club, Crusaders AC. My dad always forced me and my siblings to run the Calcutta 10km every year not having done any running in the lead-up to it! In 2012 I began to run sporadically with a fellow Trinity law graduate and together we signed up to do the MSB 5km run as part of the St Patrick’s Day festival. Following that race I joined an athletic club and after a few months I was encouraged to concentrate solely on running (and to stop Gaelic football and tennis which I was playing at the time). I became injured quickly enough however, so truth be told I didn’t think I’d ever participate in serious competition until late last year! When did you learn you had qualified for the Irish Cross Country team for the European Championships and what
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Spring 2016 dsba.ie Julie Doyle is a solicitor at Beauchamps and is a member of the DSBA Parchment Committee
Interview
Things you may not know about Caroline Crowley Caroline is... • The second eldest of 7 children. • Loves to scuba dive. • Plays the piano. • Went to an all-Irish secondary school, Coláiste Iosagáin. • One of her brothers is an actor on the TV3 drama Redrock.
circumstances led to that point? I learned I had qualified for the Irish Cross Country team on the day of the National Cross Country Championships on November 22nd 2015. I had no expectation of ever making that team as I knew that I was facing fierce competition. In the lead-up to that qualifying race I had done nothing other than good solid training. For the first time ever I had a long stint of running without injury and as result my fitness, strength and form improved significantly. What was it like to put the Irish vest on for the first time and then to win a medal? As soon as I woke up the morning of the European XC championships I put on the vest – and I remember it was exactly 8:20am at the time. My cheeks began to hurt as I couldn’t stop smiling. There are no words to describe winning that medal. I was full of emotion once I found out the team placed third. I remember looking up to the sky and wondering why my parents weren’t there to witness it. I was comforted to know they were tuned in from above and I simply thanked them for everything in life and for staying with me throughout the race.
Who has been the biggest influence on your sporting career to date, in other words, who is your sporting hero? Catherina McKiernan – and I am extremely lucky as she happens to be coaching me now. How has competing at this level changed your life? I don’t think it’s changed my life significantly but it certainly has given me the drive and desire to improve and compete at an international level. The biggest change has been in attitude, I know I need to be a bit more “precious” with myself to avoid injury! What do you do to relax? Bake homemade treats, drink herbal tea and watch Redrock. What are your sporting and career aspirations? I want to represent Ireland as often as I can. I think my best distance will be marathon however, I don’t see me doing one for a few years yet. I’ve plenty of improvement to make over the shorter distances first! It would be a dream to make the Olympics. The road to Rio? Unfortunately Rio comes too soon for me. I feel I am still in transition from fun runner to elite athlete! If Rio was 2017 I think my answer would be different. P
Having moved from a small, family-run firm to a large corporate firm I believe the biggest difference is resources and having the additional support staff which helps me to work more efficiently
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Better Call James The Legal Services Regulation Act has finally been signed into law and with it, when the Government finally settles down, will come an independent regulator and a brave new world. The Law Society’s two nominees have been carefully selected and it came as little surprise that former presidents Geraldine Clarke and James MacGuill were the first names ticked off the list. MacGuill may seem an unlikely choice for the establishment but he commands respect, admiration and occasionally fear wherever he travels. Stuart Gilhooly meets one of the profession’s finest advocates
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ames MacGill is arguably the best known lawyer in the world. Better known by his pseudonym Saul Goodman, he was the fictional legal advisor to Walter White and Jesse Pinkman in Breaking Bad and was such a critical success that he is now creating legal havoc in his own show, Better Call Saul. There is no evidence that the legendary wheeler dealer was based on James MacGuill, the Dundalk behemoth, and joking aside, there is little comparison between Dundalk’s finest and Albuquerque’s worst. James MacGuill is a former president of the Law Society and is as incorruptible as he is indomitable, yet he shares the characteristics of persuasiveness and charisma with his near namesake. It’s quite possible that the solicitors’ profession in Ireland does not possess a more compelling advocate or a more skilled debater than MacGuill. If there is one, he or she has been hiding their light under a bushel for quite some time.
There will ultimately be a crisis in the administration of justice because you can’t have a situation where there are hundreds of hours to be reviewed, thousands of pages of disclosure and we are still being paid on a model appropriate to the 1960s. It will take a miscarriage of justice type case before it changes
Having witnessed him in full flow on many occasions, he frequently makes the most unconvincing propositions seem entirely plausible. He will argue black is white with such passion and dexterity that you would often leave the debate believing that black may indeed be white or if not, it certainly should be.
The Beginning of a Beautiful Friendship It was, no doubt, those skills which made him the first name on the teamsheet when the Law Society nominees for the Legal Services Regulation Authority were being selected. When we discuss his appointment he is uncharacteristically circumspect, but given his most frequent advice to his clients is to say as little as possible, maybe he’s simply walking the walk rather than talking the talk. Was he surprised to get the nod? “I hadn’t given it any thought. I hadn’t had the subject raised with me and I didn’t raise it with anyone. I’d imagine it’s going
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Spring 2016 dsba.ie Stuart Gilhooly is a partner at HJ Ward & Co Solicitors and former president of the DSBA. He has won a number of journalistic awards for his writing
Cross Examination
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There is no call for the Special Criminal Court anymore. I think it is an anachronism, it’s a different calibre of justice and it’s not objectively justified to be very demanding, not least because it’s in its set-up phase, but it has a huge remit. It’s likely to require a lot of time even after it beds down and people’s functions are clarified. “There are so many people on the authority coming in with an entirely new perspective that it is going to be an exchange of information exercise and will take a long time. It’s going to be quite a culture shock because it’s going to be an entirely new approach with entirely new personnel.” There is no doubt that we are entering uncharted waters with the Authority, and its ethos will become much more apparent in the coming months. MacGuill is much more forthcoming though on another new initiative proposed by the Alan Shatterinspired legislation. Shatter was always, even before he was a minister, a vocal proponent of advocacy rights for solicitors, so it came as no shock that the new Act contains a right for solicitors to apply for patents of precedence to become senior counsel. MacGuill is likely to be heading the queue when this section is commenced. “I’d imagine that most colleagues with my practice mix will say they should put themselves forward for consideration. “It would remove the disadvantage when you are explaining to clients that people have a Government-endorsed accreditation which wasn’t really objectively based in the first instance and removes the disadvantage, rather than creating a particular advantage. It would have the effect if properly applied in the future, of actually introducing standards and encouraging people to meet those standards.”
Maybe not Tomorrow but Soon While most solicitors will welcome the parity of esteem that the new rules will bring, it’s likely to be greeted with considerably less enthusiasm by our colleagues at the Bar. “Progressive members of the Bar recognise it is inevitable and nothing to be afraid of, while for people who are clinging to the vestiges of objectively unjustified privilege, it will be upsetting.” MacGuill says this with a mischievous smile which suggests that any upset barristers needn’t come crying on his shoulder. He has been a cheerleader for solicitors doing their own advocacy but believes the current system militates against more doing it for economic reasons.
“For as long as we are not paid for the extra responsibility of the advocacy on the legal aid side, this will continue [to be an issue]. The [Legal Aid] scheme is quite rigid so you work within its confines. “Where solicitor advocacy is going to take off is private clients saying that they want the case conducted the way they wish to conduct it – and they are prepared to pay for that.” In England and Wales as well as our neighbours in the North, solicitors who do their own advocacy are paid a separate fee which is not replicated in this jurisdiction. “I think change in how the legal aid pays for solicitors’ advocacy is inevitable but it will be slow in coming. They will look at other jurisdictions where this has worked well because the logistics of having to manage two diaries is more problematic than just one.”
I’ve Got a Job to do too In fact, the level of legal aid fees in criminal cases reached crisis point quite some time ago and MacGuill fears it will take a miscarriage of justice before the State sees sense. “Colleagues doing their work conscientiously, going through the vast amount of additional material you now have to consider in a typical case, are losing money doing cases responsibly while those who are doing only what they are paid for may be breaking even. “There will ultimately be a crisis in the administration of justice because you can’t have a situation where there are hundreds of hours to be reviewed, thousands of pages of disclosure and we are still being paid on a model appropriate to the 1960s. It will take a miscarriage of justice type case before it changes.” Our neighbouring jurisdictions particularly, in the North, despite facing cuts, are still receiving much more realistic fees. “The North is now facing reduced figures from where they were, but those reduced figures are still light years ahead of our current figures.”
Round up the Usual Suspects MacGuill of course, is intimately familiar with the north of Ireland, with a practice so close to the border, and although he would be regarded as a solicitor who has acted for a lot of Republican accused, he insists that he has represented parties on both sides of the conflict. He has particularly strident views on the Special Criminal Court.
“There is almost no evidence of jury tampering in this jurisdiction. There is no call for the Special Criminal Court anymore. I think it is an anachronism, it’s a different calibre of justice and it’s not objectively justified.” In fact, he is not convinced there was ever a justification for it, even during the Troubles. “I don’t see why terrorist trials in England were tried by juries but a different standard of justice was applied to the problem in Belfast – and we chose to apply it to ourselves.” He is a believer in the jury system over one where judges alone reach verdicts. “Juries take the presumption of innocence seriously. Experience of all criminal practitioners is that when judges have been there for a long period of time, they become case hardened and the presumption of innocence is applied differently.” He is critical of some judges in the district courts who, of course, never have the luxury of a jury to rely on. “Where does the presumption of innocence rest, say in some cases outside Dublin, where the judge has convicted you on ten previous occasions? “Undoubtedly there are people who might get nailed for things they haven’t committed, or at least where the evidence linking them to the crime is wholly inadequate. And in many cases they plead guilty because they don’t feel they will get a fair crack of the whip from the system and are doing an exercise in damage limitation. These are people where their presence in the courtroom is the reverse of the presumption of innocence – and they are considered guilty from the get go.” The jury system isn’t infallible though as we have seen on many occasions, particularly in other jurisdictions and most notoriously in the recent Steven Avery case which took the country by storm over Christmas following the Netflix series, Making a Murderer. Does evidence tampering occur here? “I’ve seen cases where there has been an acquittal where the State evidence is wholly unreliable and in some cases manufactured.”
Here’s Looking at You, Kid The provocative, opinionated MacGuill is not a recent incarnation. It appears that it was always thus. Born in Drogheda in 1963, he was schooled at the Marist College in Dundalk where his first brush with authority ended a little less successfully. “I was involved in the shortest strike in industrial relations history when the sixth years walked out for a period of time, between two and five minutes depending on who you are talking to. It was a result of a perceived injustice to one of our classmates for something he didn’t do but the threat
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Spring 2016 dsba.ie
Cross Examination
Photography: Bryan Meade
that we wouldn’t be allowed to sit our Leaving Cert resulted in the strike force being back at their desks in milliseconds.” This mini crisis having been averted, he then made the long journey to UCC to study law. “I was a major beneficiary of the points system at the time which meant that UCC was the only college where you could combine your Leaving Cert and your Matric, and hence I arrived at UCC which was the best bit of good fortune I ever had.” Three years later, in 1983, having completed his degree without any further industrial relations breakdown he entered his father’s practice where some 33 years later, he still holds court. While his practice has morphed from a more general one in his father’s day to one where the majority of his clients have been accused of criminal offences, MacGuill & Co has grown in size. He now has a Dublin office and employs 20 people between them. He seems the most unlikely of Law Society presidents and like many before him, found himself at a very young age catapulted into Blackhall Place almost by default. “I missed a meeting of the local Bar Association and they decided we should have a candidate and whoever was not there, would be the candidate.”
James MacGuill at a glance
FAMILY One son, Conor, aged 19, studying arts in UCD BIGGEST INFLUENCE ON YOUR LEGAL CAREER My father FAVOURITE SINGER Elvis Costello FAVOURITE MOVIE Casablanca, I know nearly every line by heart FAVOURITE SPORTSMAN Paul O’Connell HOBBIES/INTERESTS Music and sports, particularly rugby
As Time Goes by Sixteen years later, he found himself wearing the chain at the youthful age of 44. He was happy to walk away though when his time was up and thinks it’s the right thing to do. “It has a shelf life. I don’t like the idea of having an organisation with too many people who have the dead hand of ‘it wasn’t like that in my day’. You need to have new thinking and be critical of past decisions.” So he has moved on from the Law Society and when he’s not putting the new authority through its paces, there’s every chance you’ll find him in Europe. More specifically Belgium, either in Brussels representing his country and profession at the Council of European Bars and Law Societies (CCBE) or perhaps in Strasbourg at the European Court of Human Rights where he took on the best of the Irish Bar in 2010. Representing notorious Republican Brendan “Bik” McFarlane, he received no joy from the Irish courts when unacceptable delays in bringing him to trial resulted in MacGuill taking on the Irish State in Strasbourg. On one side of the table sat three eminent senior counsel. On McFarlane’s side was James MacGuill, Solicitor and Aimee McCummiskey, trainee. They faced just the 17 judges in Strasbourg’s grand chamber and emerged victorious. It might appear to be the equivalent of Dundalk beating Barcelona in the
Champions League, but MacGuill hates that inferiority complex and thinks solicitors are better equipped for Europe and get a more welcoming reception. “Because there’s such a large body of judges and a significant number of researchers, a lot more emphasis goes into the preparation of the case so that when it comes to normal argument, the court is concentrating on your best points and dealing with its prepared and often very difficult questions, therefore it is not a place that solicitors should be afraid to go as solicitors are usually best placed to give the answers. A case before the European Court of Human Rights is certainly a lot less challenging than a bad day in Dundalk District Court.”
Play It These advocacy skills with little parallel to date in the solicitor’s profession, often see him linked with High Court vacancies on the
bench. He claims no attraction and the very thought seems to amuse him. “I wouldn’t have any interest but from time to time, there is speculation and I have found people who absolutely hate my guts being unnecessarily polite to me.” Conversations with MacGuill are frequently sprinkled with such vignettes and usually accompanied by a cheeky grin. He appears to revel in his role as a maverick with a silky turn of phrase, though sometimes you meet him and he appears almost bashful. It is this combination of occasional shyness and enigmatic charisma that make MacGuill such a fascinating character. He is hard to get close to and puts up a wall of articulate concrete around him that can be very difficult to break down. Watch him in action though and it’s easy to see why his talents are much in demand. And coming soon to a court near you, James MacGuill, SC, will be worth an entrance fee. P the Parchment 43
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Traps in Unfair Dismissal Cases Whether acting for an employee or an employer in unfair dismissal cases, Richard Grogan warns that the provisions of Section 14 of the Unfair Dismissal Act 1977-1993 should never be underestimated
We are now in a completely new environment relating to unfair dismissal cases
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ection 14 (1) provides that an employer shall not later than 28 days after an employee enters into a contract of employment, give the employee a notice in writing setting out the procedures which the employer will observe for the purposes of dismissing the employee. If this is not done, it is important before any disciplinary process takes place, that the disciplinary procedures are set out. Failure to provide the employee with disciplinary procedures may now result in the dismissal being deemed unfair. The employee should have a right to an initial investigation and appeal, a right to representation and most definitely, a right to all documentation and witness statements that the employer will be relying upon as part of the disciplinary process. One issue which is constantly catching out representatives of employers is Section 14 (4) as inserted by the Unfair Dismissal (Amendment) Act 1993. Where an employee is dismissed the employer shall, and it is prescriptive if so requested, furnish to the employee within 14 days of a request, particulars in writing of the principle grounds for dismissal. In an unfair dismissal case subsequently other grounds can, if they are substantial grounds, be taken into account. There is no penalty for an employer failing to respond. However, where an employer does not respond, an inference can and most probably will be drawn from the failure of the employer to respond. In unfair dismissal cases the provisions of Section 14 are often overlooked. It is a very useful procedure for an employee to utilise before proceedings issue. Because of the fact that, under the new procedures, an employee must set out particulars as to their claim, this section may be used more often. If an employee furnishes a request and no response is furnished within 14 days, then the employee has an important option. The employee can simply lodge a claim which states: “I was unfairly dismissed. I made a request under Section 14 Unfair Dismissals Act 1977-1993 to which
the employer has refused to respond. I therefore have not been advised in accordance with law, of the grounds of my dismissal�. That will be more than sufficient for the employee to claim that they have made a valid complaint. In cases where the employer will be contending that the employee abandoned the job or resigned, a failure to respond to Section 14 request, particularly where the employee claims that he/she was dismissed, may well be treated on the basis that any reasonable employer would, in those circumstances, have responded immediately setting out that it was a resignation or an abandonment of the position. For colleagues who go through the Workplace Relations Commission and have a matter dealt with by an adjudicator and wish to appeal, it should be noted that the Labour Court requires the party appealing to lodge a detailed submission relating to their claim within three weeks of lodging the appeal. It is not three weeks from the request. It is three weeks from lodging the appeal. Therefore colleagues lodging appeals need to carefully consider getting all documentation in place for furnishing to the Labour Court. This would include an outline of all the relevant facts. It would include particulars as to the names of witnesses and the evidence that those witnesses are going to give. It would not be sufficient to simply lodge an appeal in broad terms. Detailed submissions will be required. The party responding to the appeal must also be given a copy and evidence must be furnished to the Labour Court that a copy of the appeal has been served on them or their representative. The party responding to the appeal will be written to by the Labour Court and given three weeks to lodge their paperwork. Once appeal documentation is received by the party who is not appealing, immediate steps should be put in place for detailed submissions to be prepared along with lists of witnesses and the evidence those witnesses are going give. It should be noted that it would not be sufficient to simply set out matters in general terms and to state that further and better particulars will be furnished at a later stage. You are required to set out your full case. The Labour Court makes it very clear that there will be
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Spring 2016 dsba.ie Richard Grogan is a principal of Richard Grogan & Associates Solicitors and a registered tax consultant who specialises in employment law
no ambushing. Evidence to mitigate loss will be required from the employee. Employers would be required to set out all documentation relating to disciplinary procedures, how they were applied in practice and all documentation relating to the disciplinary process. For colleagues dealing with unfair dismissal cases there is a significant front loading of work to be done. Cases will be dealt with before the Workplace Relations Commission hopefully within 12 weeks of claims being lodged. Decisions will issue in future within eight to ten weeks. Appeals will be heard by the Labour Court very quickly. The days of either lodging a claim or simply responding and waiting until the case comes on for hearing, and then looking to start preparing your documentation for exchange on the day is no longer an option. Front loading of work on cases will require a significant amount of work to be done well in advance of the hearing and furnished to the other side. Colleagues acting for employers will now need to consider, because of the cost involved in preparation of cases for hearing, the issue of an early settlement. Employers will need to be aware as well as employees, that the option for reinstatement – which was not really an option when an employee had been out of work for two years waiting for their case to come on for hearing – will now be a realistic option for an adjudicator or the Labour Court. If an employee opts for reinstatement as a tactical move on the claim form, they may well find themselves in a situation of getting re-engagement with no backpay rather than compensation. The converse is that if the employer opts for compensation as a preferred option where an adjudicator or the Labour Court determine that the actions of the employer were unreasonable and that the employee should get their position back, employers may well find that they end up with a reinstatement decision requiring the backpayment of wages to the date of the dismissal and having to take the employee back. If taking the employee back is a realistic option the
Employment Law
employer should be notifying the employee through their representative if they have one or directly if they do not, that the employer is prepared to re-engage the employee. If the employee has opted for reinstatement they will need to consider very carefully taking up the positon under protest and letting an adjudicator/the Labour Court determine whether it should have been reinstatement. If the employee has opted for compensation, they may find it more difficult unless an adjudicator or the Labour Court confirms that trust and confidence have been completely lost to justify not accepting re-engagement and therefore that their loss would crystalise when the offer was made to re-engage them. We are now in a completely new environment relating to unfair dismissal cases. Employers are going to need to react very quickly and particularly to Section 14 requests. Equally employees are going to have to know that cases are going to come on quickly and that hard choices may have to be made at relatively short notice. Because matters are now so front ended there is going to be a cost issue. There is going to be a considerable amount of work which is going to have to be undertaken virtually immediately, whether acting for an employer or an employee. Detailed and comprehensive instructions will need to be taken on whichever side you are representing. Once a claim is lodged, immediate action and work is going to have to be undertaken. This will be a cost issue which those wishing to have legal representation will have to address at the start. I would caution colleagues who are undertaking unfair dismissal work to read the Labour Court guidelines on the Workplace Relations Commission website along with the Workplace Relations Commission guidelines. Failure to comply with these could have a negative impact on your client. This is therefore a risk issue which colleagues must be conversant with. There are traps there for an unwary solicitor and I hope this article will help colleagues avoid those traps. P the Parchment 45
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The Assisted Decision-Making (Capacity) Act 2015 The Assisted Decision-Making Capacity Act 2015, first published in July 2013, substantially assists vulnerable people in our society with decision making. John Costello says this new legislation will also give vulnerable people much needed legal protection from abuse, exploitation or fraud
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he Act was signed by the President on December 30th 2015. However, various parts of the Act will only come into operation on a phased basis in 2016, after codes of practice and regulations are made. Until now people with an intellectual disability or dementia, or who had reduced mental capacity, did not have clear rights to make decisions. The law on deciding who has decision-making capacity had been very inadequate and the arrangements for supported and substitute decision making had been practically nonexistent. The new legislation aims to assist relevant persons who have reduced decision-making capacity to manage their affairs. The Act introduces a system of support in decision making, giving these people greater autonomy in any decisions concerning their lives. The Act is drafted on the basis that a person’s capacity is to be construed functionally and certain principles must be followed. 1. Principles under Act: A) A relevant person’s capacity shall be assessed on the basis of his or her ability to understand the nature and consequences of a decision to be made by him or her in the context of the available choices at the time the decision is made. B) A person lacks capacity if he or she is unable: (i) To understand the information relevant to the decision; (ii) To retain that information long enough to make a voluntary choice; (iii) To use or weigh that information as part of the process of making the decision, or; (iv) To communicate his or her decision by any means. C) A person is not to be regarded as unable to understand the information relevant to a decision if he or she is able to understand an explanation of it given to him or her in a way that is appropriate to his or her circumstances. D) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him or her from being regarded as having the capacity to make the decision. E) The fact that a person lacks capacity in respect of a decision on a particular matter at a particular time does not prevent him or her from being regarded as having capacity to make decisions on the same matter at
another time. F) The fact that a person lacks capacity in respect of a decision on a particular matter does not prevent him or her from being regarded as having capacity to make decisions on other matters. The new legislation in effect, enables specific individuals (called “interveners”) to support relevant persons while enabling them to have their voices heard and to have their wishes followed where possible. The Act provides for the appointment of different types of interveners to assist the relevant person in making decisions regarding that person’s personal welfare or property and affairs, or both. Interveners will be supervised by an office called the Decision Support Service, which will have a director and staff. 2. Guiding principles where the relevant person needs an intervention regarding decision making: A) The principles apply to every intervention under the Act. B) There is a presumption of capacity for all relevant persons unless it is proven that this is not the case. C) A relevant person is not deemed unable to make a decision unless all practicable steps have been taken without success, to help him or her do so. D) A relevant person is not considered unable to make a decision merely because of a risk that it is an unwise decision. E) No intervention is to take place unless necessary. F) Any intervention will be the least restrictive of the relevant person’s rights and freedom of action and have due regard to his or her dignity, bodily integrity, privacy, autonomy and control over his or her financial affairs and property. G) The relevant person has to be permitted, encouraged and facilitated to participate in the decision process and the past and present will and preferences of that person shall be taken into account. H) The interveners must also act, at all times, in good faith and for the benefit of the relevant person. I) No intervention should be taken if the matter is not urgent and the relevant person is likely to recover capacity shortly. 3. Decisions by interveners: Interveners may be involved in decisions relating to the
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Spring 2016 dsba.ie John Costello is a consultant at Orphen Franks Solicitors and a former president of the Law Society. This is an extract from his book, Law and Finance in Retirement, 3rd Edition, published in June 2016
personal welfare or property and affairs, or both, of the relevant person. Personal welfare includes healthcare. 4. The following are the main interveners under the Act: A) Decision-making assistant The Act provides a statutory framework for formal agreements to be made by persons who consider that their capacity is in question, or may shortly be in question, to appoint a trusted person to act as their decision-making assistant. The assistant must ascertain the will and preferences of the appointer and endeavour to ensure that the appointer’s decisions are implemented. The appointment of a decision-making assistant shall be made in a decision-making assistant agreement and notice of this agreement must be given to the director of the decision support service (called “the director”). The functions of the decision-making assistant are: (a) To advise the appointer by explaining the information and considerations relating to the decision. (b) To ascertain the will and preferences of the appointer. (c) To assist the appointer obtaining any information or personal records that are required in relation to the relevant decision. (d) To assist the appointer to make and express a relevant decision. (e) To endeavour to ensure that the appointer’s relevant decisions are implemented. B) Co-decision maker: A person (called “the appointer”) who considers that his or her capacity is or will shortly be in question, may appoint a suitable person to make joint decisions with them on matters related to his or her personal welfare and/or property and financial affairs. A suitable person is a relative or friend of the appointer who has had such personal contact with the appointer over such period of time that a relationship of trust exists between them and is able to perform the functions agreed. The appointment of a co-decision maker must be made in a codecision making agreement and must be registered with the decision support service, which will supervise co-decision makers. C) Decision-making representatives: Thirdly, if the relevant person is unable to appoint a decision-making assistant or co-decision maker, then the Circuit Court can appoint a decision-making representative. In appointing a decision-making representative, the court may appoint one or more nominees to be the decision-making representatives for the relevant person. In making an order under this legislation the court may make provision for such matters as it considers appropriate, including setting out conditions covering the role of the decision-making representative. Before appointing a decision-making representative, the court must be satisfied that the proposed decision-making representative is a suitable person to act as a decision-making representative for the relevant person and to carry out the necessary tasks and duties associated with being a decision-making representative.
The principles applying are: • The representative is appointed by the court where the court is satisfied that the relevant person lacks capacity even if a co-decision maker was made available to them. • The court can direct the decisions which the representative can make regarding the property and affairs or personal welfare of the relevant person. • The court can appoint if necessary, a decision-making representative from a panel maintained by the decision support service. • The representative will be supervised by the decision support service. D) Attorney under enduring powers of attorney: The Act re-enacts the provisions of the Powers of Attorney Act 1996 but requires attorneys to comply with the new guiding principles. A personal welfare decision now extends to giving or refusing treatment by a person providing healthcare for the donor, other than refusing life-sustaining treatment. E) Designated healthcare representative under advance healthcare directives: The Act provides for advance healthcare directives. The treatment being refused must be clearly identified and the specific situations in which the treatment refusal is intended to apply, must also be clearly outlined. The provisions will also enable a person to outline specific treatment requests in his or her directive. The provisions introduce a mechanism through which an adult with capacity may nominate in his or her directive a representative, who is aware of his or her will and preferences, to be involved in the healthcare decision-making process on his or her behalf if he or she was subsequently to lose capacity. This nominee is known as the designated healthcare representative. 5. Decision support service: The director and staff of the decision support service will be employed by the Mental Health Commission. The director will supervise decision-making assistants, co-decision makers, decision-making representatives, attorneys appointed under enduring powers of attorney and designated healthcare representatives. He or she will have the power to deal with complaints against these interveners. 6. Court applications: The Circuit Court has jurisdiction for almost all matters arising under the Act. 7. Wards of court: The Act will abolish the legislation relating to wards of court. Existing wards of court will be brought under the jurisdiction of the Act, within three years of the commencement of this part of the Act. 8. Legal aid: The Act provides for the provision of legal aid for those making an application under the Act. It is envisaged that a specialised panel of solicitors will be established for the purposes of acting in respect of matters arising under the Act.
Mental Health Law
The new legislation aims to assist relevant persons who have reduced decisionmaking capacity to manage their affairs. The Act introduces a system for support in decisionmaking, giving those people greater autonomy in any decisions concerning their lives
Conclusion What is very welcome about the Act is that it moves away from the paternalistic way of looking after what we decide are people’s “best interests” and recognises it is a person’s right to make decisions about their own life. December 30th 2015 was an historic day for thousands of Irish people and their families. P the Parchment 47
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The Way Forward for Clinical Negligence Actions Clinical negligence actions and the pre-action protocol have now been put on a statutory footing in the Legal Services Regulation Act 2015 (LSR Act). Jenny Foley says this is a welcome change for both plaintiff and defence lawyers instructing in clinical negligence actions
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he defined term “clinical negligence actions” will be inserted into the Civil Liability and Courts Act 2004. “Clinical negligence” is defined as anything done or omitted to be done in the provision of a health service by a health service provider in circumstances which could give rise to liability for damages for negligence in respect of personal injury or death. A “clinical negligence action” means an action for the recovery of damages. It is brought by a person alleging that he or she, or a deceased person of whom he or she is a personal representative, has suffered personal injury or death as a result of clinical negligence. The defendant is the health service provider alleged to have committed the act or omission giving rise to liability.
What is a Health Service and who does it Include? The LSR Act states that a health service includes carrying out a clinical investigation, diagnosis, procedure, treatment or research; the provision of clinical advice or information; and the provision of clinical care. The health service providers are listed in the Act and include a person whose name is on the following: (a) The register of medical practitioners. (b) A register maintained by the Dental Council. (c) A register maintained by the Optical Registration Board. (d) A register set up under section 13 (1) of the Pharmacy Act 2007. (e) A register maintained under section 46 of the Nurses and Midwives Act 2011. (f) A register maintained by any health and social care profession which has been designated for the purposes of the Health and Social Care Professionals Act 2005 and which the minister has prescribed by regulations.
When does the Pre-Action Protocol Apply? The pre-action protocol will apply to all clinical negligence actions prior to the commencement of proceedings. No specific date has yet been set for the introduction of the protocol.
The Terms of the Pre-Action Protocol The Minister for Justice must make regulations specifying the terms of the pre-action protocol. Before making such regulations, the Minister is required to consult with the Minister for Health and various bodies including the State Claims Agency. The LSR Act provides that the terms of the preaction protocol specified by the regulations shall include provisions relating to: the disclosure of medical records; notifications of enquiries into, and allegations of, possible clinical negligence and responses to such notifications; timeframes for compliance; disclosure of relevant material; and agreements to submit issues for resolution other than by a court. We do not know what the terms of the pre-action protocol will be. It is likely that its terms will be similar to those proposed in the draft scheme prepared by the Working Group on Medical Negligence in Ireland along with the UK model provided for under the UK Civil Procedure rules. The pre-action protocol in the UK includes the following stages: • Letter of claim – the patient must serve a letter of claim on the healthcare provider which must include a summary of the facts grounding the claim, details of the basis upon which the claim is being made and what reliefs the plaintiff is seeking including details of financial loss. • Letter of response – the healthcare provider must answer the claim within a maximum period of four months. The response must clearly identify the accepted and disputed parts of the claim and the basis for any dispute. • Essential documents – both parties must provide a list of the documents on which they intend to rely. If requested by the other party, they should provide copies of the listed documents. • Alternative dispute resolution – parties must consider using a form of alternative dispute resolution which is reasonable and proportionate – including mediation, arbitration, offer of open discussion or negotiation.
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Spring 2016 dsba.ie
Litigation
Jenny Foley is a healthcare solicitor at Hayes Solicitors
Discovery applications during the pre-action stage are not common in the UK as the documentation is usually provided by both parties which saves time and costs. It is hoped that we will have the same result in Ireland to reduce the time and costs involved in the current protracted discovery process and court applications.
Will Sanctions Apply for Non-Compliance? There will be penalties for non-compliance. There are four sanctions set out in the LSR Act. The most severe sanction is an order that a party who has not complied with a requirement of the pre-action protocol pay the full costs or part of the costs of the other party or parties. The other sanctions include a stay on the action until parties comply with the protocol, an order depriving the plaintiff of interest on an award of damages, and an order compelling the defendant to pay interest on an award of damages.
Limitation Periods There will be a major change to the statute of limitations for clinical negligence actions from two years to three years by way of an amendment to section 3 (1)(a) of the Statute of Limitations (Amendment) Act 1991. The three-year period does not affect actions where the patient is deceased or has ceased to be under a disability and these cases will continue to be a two-year statute of limitations. The new section will not apply where the date of accrual of the cause of action or the date of knowledge of the person is before the commencement of section 3 (1)(a). In England and Wales, there is a statutory limitation period of three years. This has been successful to date in providing the necessary extra time for the parties to comply with the pre-action protocol and limitation periods. The change to the statute of limitations in Ireland will provide the extra time for parties to comply with the protocol while keeping within the limitation periods.
New Statutory Footing for an Apology The LSR Act provides a statutory footing for an apology made in a clinical negligence action. The Act provides that an apology shall not constitute an express or implied
admission of fault or liability and shall not, despite any provision to the contrary in any contract of insurance and despite any other enactment, invalidate or otherwise affect any insurance coverage. Until now there has been no statutory protection for an apology made by a clinician in a clinical negligence action. The LSR Act does not define an “apology”. The general scheme of provisions on open disclosure defines an apology as “an expression of regret”. It is likely that similar wording will be used for the pre-action protocol and one would hope that there is a uniform approach to the definition of an apology to ensure that there is clarity for health service providers.
Offers of Settlement Section 17 of the Civil Liability and Courts Act 2004 introduced letters of offer by the parties to a personal injuries/clinical negligence action which had costs penalties. A new Section 17A will be included for the pre-action stage to expand the terms for the “Section 17” offer and will act as a deterrent should either party not accept early reasonable offers of settlement. The court will be allowed to take into account, when making a costs order, the terms of the offer of settlement and reasonableness of the conduct of the party by whom the offer was made in making the offer. Section 17A is similar to the costs penalties for a tender or lodgement made when proceedings have issued.
The LSR Act provides a statutory footing for an apology made in a clinical negligence action
Conclusion Research from the UK has revealed that the introduction of the pre-action protocol has resulted in a decrease in claims proceeding to trial. Between 2005 and 2010, 67% of UK cases were resolved in the pre-action stage. The pre-action protocol will provide a much needed change to the procedures for clinical negligence actions in Ireland with a focus on early resolution and filtering of claims pre-proceedings. This in turn should reduce the costs of litigation and reduce court time. The consultation process on the terms of the pre-action protocol is under way and it is hoped that the pre-action protocol will be finalised soon so that the protocol can commence for clinical negligence actions. P the Parchment 49
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Greg Ryan is programmes director of the DSBA and he is chair of the Law Society Technology Committee
IT/Consumer Law
Shopping Online
– A safer future?
W
ith the advent of the internet and in particular, the shopping channels opened by the ever-developing technology, most of us have bought something online at this stage, 65% of internet users in the EU shopped online in 2015. Nearly eight in 10 EU citizens used the internet in the previous three months and two-thirds went online on a daily basis. As a corollary, most of us will have had some problems shopping online too. Statistics from web research companies show that 83% of purchasers admit that they need some form of support during their online journey. The biggest increase of e-shoppers is among young people, not unsurprisingly. Clothes and sports goods predominate in online purchases. It’s not all negative, 70% of e-buyers reported to have no problem with purchasing online and 30% of online shoppers bought or ordered goods or services from sellers outside the EU. Also not unsurprisingly, the proportion of e-shoppers varied considerably across the member states, ranging from 18% of internet users in Romania, to 87% in the United Kingdom. The European Commission has now set about addressing the trans-jurisdictional issues that arise from purchasers and vendors being in different European Union countries. On February 15th the European Commission launched a new platform to help consumers and traders
solve online disputes over a purchase made online. The online dispute resolution (ODR) platform offers a single point of entry that allows EU consumers and traders to settle their disputes for both domestic and cross-border online purchases. This is done by channelling the disputes to the national alternative dispute resolution (ADR) bodies that are connected to the platform and have been selected by the member states according to quality criteria and then notified to the Commission. The Commission’s research showed that most consumers experiencing problems when buying online didn’t complain, as they believed that the procedure would be too long and that it would not be resolved. This online dispute resolution platform is designed to improve consumer trust when shopping online and support businesses selling cross border, contributing to Europe’s digital single market. The platform is user-friendly, consumers simply fill out a complaint form on the platform in three simple steps. The entire resolution process will be conducted online, thus obviating the need to attend at court offices or small claims courts. The platform is also multi-lingual with a translation service provided to assist disputes. Currently around 117 alternative dispute resolution bodies from 17 member states are connected to the ODR platform. The Commission is continuing to work with member states to achieve a full coverage of all member states and sectors as soon as possible. On average, it will take a maximum of 90 days for cases to be resolved. The experience of European consumers who have used the ADR process tends to be positive, 70% were satisfied with the way a complaint was handled through the procedure. This is an additional way for consumers to solve their disputes and will not replace going to court, which consumers can opt to do, if they wish. Interestingly, only 45% of consumers were satisfied with the way the court handled their complaint. Access to the alternative dispute resolution is ensured no matter what product or service they purchased, or whether the product or service was purchased online or offline, or whether the trader is established in the consumer’s member state or in another member state. So, shop with confidence, the Commission is thinking of you! P
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E-Discovery, Predictive Coding and Future Challenges Emma Hanratty, BL and Sonya Dixon, BL assess the evolving area of e-discovery and predictive coding and report on a recent Court of Appeal decision which is likely to have wide-ranging implications in the area of discovery
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echnology has dramatically transformed discovery. Traditionally parties handed over hard copies of everything from letters to financial statements and everything in between. Now emails are cc’d to numerous parties, transactions take place electronically, meetings are arranged online and employees use work email accounts to shop, contact friends, forward jokes, etc. Then there’s social media! Every employee generates hundreds of thousands of documents. If some of those later become relevant in litigation, how do you find them?
a protocol clearly setting out the procedure which will be followed, how disputes will be dealt with, the manner of disclosure, etc. This should be agreed with the opposing party or approved by the court. It is essential that all parties engage with each other as early as possible to ensure that they are happy with the proposed protocol.
IRBC v Quinn High Court
Technology-Assisted Review (TAR) such as predictive coding provides a way of drastically reducing the hours spent sifting through irrelevant documents. First given judicial approval in the US, here the leading judgment of Mr Justice Fullam in IRBC v Quinn was reported worldwide and upheld by the Court of Appeal one week after the first UK decision on the issue.
The defendants sought to argue that TAR did not comply with Order 31, Rule 12 of the rules of the superior courts which is silent on the methodology to be used in discovery. Having considered case law, and carefully analysing the protocol proposed, Judge Fullam approved the use of predictive coding. He was convinced by expert evidence that predictive coding is at least as accurate, if not more accurate than manual review and noted that even if it were only the former, it would still be preferable due to the cost savings. In order to determine whether TAR was compliant with the rules, Judge Fullam held: “A balance must be struck between the right of the party making discovery to determine the manner in which discovery is provided and participation by the requesting party in ensuring that the methodology chosen is transparent and reliable.” Having looked at the jurisprudence relating to the relevant rules he concluded that, provided the process has sufficient transparency, predictive coding was appropriate to discharge a party’s obligation to make discovery as outlined therein. The judge assessed the protocol proposed by the plaintiff and was satisfied that it would “be more efficient than manual review in terms of saving costs and saving time.”
What is Predictive Coding?
Court of Appeal
Senior lawyers “train” the predictive coding software by reviewing a seed set of documents, analysing the software results, providing feedback and making adjustments or corrections accordingly. The cycle is then repeated approximately 20-25 times until the software is able to accurately identify relevance. The “spam filter” in email is an example of its use. The party proposing predictive coding must produce
The Court of Appeal upheld Judge Fullam’s decision, stating that he was correct in approving the use of both TAR and the particular protocol proposed in this case. The court noted his desire to have a discovery process that is fair, compliant with the rules, proportionate and cost effective and was satisfied that Judge Fullam had an inherent jurisdiction under the rules to approve predictive coding and the methodology proposed.
Past Solutions Luckily technology, as well as creating the problem, has provided solutions. We have programmes to enable searching, sorting and sharing of soft copy documents. In large, mostly commercial cases where there can be millions of documents, costs can be eye watering. Past attempts to lower costs have provided mixed results with reports of the use of inexperienced lawyers leading to disclosure of privileged documents. Keyword searches are useful but not enough.
Judicial Approval of TAR
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Spring 2016 dsba.ie Emma Hanratty, BL and Sonya Dixon, BL are practising barristers with an interest in the area of discovery
Judge Finlay-Geoghegan specifically noted the respondent’s acknowledgement that they would remain responsible for making discovery in accordance with the requirements of Order 31, Rule 12. In relation to timing, the court noted the importance of early engagement in relation to proposed methodology such as TAR and referenced the Sedona principles (developed by the Sedona Conference in relation to discovery and electronically stored information) in particular, and US jurisprudence on the point, but found there had been no prejudice caused by any alleged delay in the instant case.
Benefits The principle benefit of predictive coding is unquestionably costs savings. Discovery costs in commercial cases have escalated to a point where they may become a barrier to litigation and access to justice. Further, by reducing the number of documents for manual review the time spent on discovery can also be drastically reduced in large cases where discovery can take many months, if not years. Additionally, far less reviewers are required so it is possible and in fact advisable, to use only experienced lawyers, especially in the training of the system. The more accurate they are at reviewing the seed set and “teaching” the software, the more accurate the final results will be. As is clear from both the High Court and Court of Appeal, the key element to ensure the success of TAR generally, is communication with your opposing party. You must involve them in the formulation of the protocol at an early stage, certainly as soon as it becomes clear that predictive coding may be suitable for the particular data set in question. The party making discovery is in no way bound to accede to their opponent’s requirements and is ultimately answerable to the court. It is an unfortunate reality that in an adversarial background, many cases will probably require applications to court for a ruling on the protocol but where there are millions of documents, even court applications will prove cheaper than paying reviewers to spend months sifting through irrelevant
Litigation
documents. The words that appear repeatedly in case law and best practice guides are agreement, transparency and proportionality.
Limitations The limitations to predictive coding are obvious. It can only determine whether the document is relevant and cannot categorise or decide on privilege. A manual review is still necessary once the relevant documents have been identified. Predictive coding requires a large homogenous set of sample documents in order for the software to be able to identify the relevant patterns, and has questionable ability to deal with documents that contain little or no text or foreign language documents. Where categories of discovery are very disparate, TAR might not work as it is simply too costly to process one category at a time. The defendants in IRBC v Quinn sought to argue that predictive coding is not suitable when there are less than 1 million documents. However, this was rejected by the judge after hearing expert testimony. In certain cases however, it may be more cost efficient to undertake a manual review or keyword search. From our experience, it is often possible for reviewers to quickly identify a portion of irrelevant documents and classify them en masse as not relevant, so manual review may not take as long as you might first think. Determining whether predictive coding will actually save costs will require a decision based on the number and type of documents, and arguably the latter factor should be taken in to account more often.
The judge assessed the protocol proposed by the plaintiff and was satisfied that it would be more efficient than manual review in terms of saving costs and saving time
Conclusion It has been estimated that discovery costs can approach 50% of the total cost of proceedings which could clearly become a barrier to litigation. (Mr Justice Clarke, Good Practice Guide to Electronic Discovery in Ireland, April 2013.) Few lawyers can say that they are very comfortable with using predictive coding but it is essential that we get up to speed with this inevitable change. There is a reluctance from lawyers to fully engage with TAR as it creates an uneasiness about delegating duties to a machine. Safeguards are necessary but with time and trust, lawyers will become more deft at the procedure. P the Parchment 53
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Roy Keane, and the Way he Might Look at You As a creative industry advertising often involves taking risks and pushing boundaries. By contrast the purpose of law is to set boundaries by seeking to define what is and is not, acceptable in a society. As a result, advertising and the law can be uncomfortable bedfellows and this fraught relationship is illustrated by the legal issues that arose over six months in 2015. Here Patrick Ambrose examines the direct and indirect effects for advertisers in Ireland
I
n May last year the Financial Times reported that several mobile phone operators planned to install software on their networks that would allow their customers to block most types of advertising from loading in webpages and apps, with some suggesting an outright block on all advertising which would apply across its entire network of subscribers. While some network operators cited the impact of online advertising on the mobile user experience (where they alleged pop-ups, auto-playing videos and other forms of digital advertising consume 10-50% of a mobile subscriber’s data plan), in reality many operators are frustrated that digital media companies are profiting from their high-speed networks without having to invest in the infrastructure behind them. By way of example, the world’s biggest advertising business, Google, generates $60bn a year from services that deliver ads for third-party sites. The mobile operators’ strategy appears to be an attempt to force digital media companies into giving up a cut of their revenues. However, the strategy might offend “net neutrality” rules in the EU and US which oblige telecoms companies to treat all data that flows through their networks equally. Reasonable day-to-day traffic management is permitted according to justified technical requirements, but it must be independent of the origin or destination of the traffic, which may preclude mobile operators from relying on this exception to block advertisements. In June 2015 German supermarket chain Aldi succeeded in a case against its competitor, Dunnes Stores, over misleading advertising claims, Aldi had alleged that on multiple occasions Dunnes infringed Aldi trademarks by displaying banners in their supermarkets which contained the words “lower price guarantee” and “guaranteed lower prices on all your family essentials every week”. Aldi claimed that the banners failed to objectively compare one or more of the relevant and verifiable features of the Dunnes Stores
products with those of Aldi. The High Court held that Dunnes Stores had failed to objectively compare products which met the same needs or were intended for the same purpose, and that the advertisements included the provision of false information which was likely to cause an average consumer to make a transactional decision which that consumer would not otherwise make, in contravention of the Consumer Protection Act, 2007. It was also found that Dunnes Stores had omitted or concealed material information in relation to comparative advertisements that the average consumer would need to make an informed decision, contrary to the European Communities (Misleading and Comparative Advertising) Regulations 2007. As Aldi’s trademarks had been used otherwise than in accordance with honest practices, the High Court further held that Aldi’s trademarks had been infringed. In July 2015 the Irish football team’s assistant manager, Roy Keane, took legal action over a billboard ad by bookmakers Paddy Power featuring Mr Keane as Scottish legend William Wallace in a still photo from Oscar-winning film Braveheart. The billboard which was allegedly placed on the side of a truck and driven around Dublin ahead of Ireland’s match against Scotland, included the message: “You may take our points – but at least we have our freedom... (ya wee pussies)”, in what is believed to be a reference to the Scottish Independence referendum in September 2014 where a majority of Scots voted to stay within the UK. Mr Keane claimed that the use of his image without his prior knowledge or consent, breached his constitutional rights and damaged the valuable goodwill in his name, image, likeness and professional reputation. The action is certainly unusual for Ireland and although US law provides that individuals can, in certain circumstances, protect against unauthorised use of their identities, there is no judicial recognition of any tortious right to personality in Irish case law. The decisions of courts in other jurisdictions where such rights are
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Spring 2016 dsba.ie Patrick Ambrose is author of The Law of Advertising in Ireland, published in July 2015 by Bloomsbury Professional. He is also co-chair of the DSBA In-house Committee
recognised may have been persuasive, but the matter was ultimately settled by the parties out of court in early October 2015. In August Dunnes and Aldi were back before the courts. On foot of the High Court decision in June, Aldi sought an injunction restraining Dunnes from infringing their trademarks, relying on Article 102(1) of the Community Trade Mark Regulation 207/2009 which provides that, unless there are special reasons for not doing so, a Community Trade Mark Court may issue an order preventing the defendant from proceeding with acts which infringe or would infringe a Community Trade Mark. The High Court held in favour of Aldi, finding that it was entitled as of right to an injunction where its trademark was infringed in the course of a comparative advertising campaign. And the fact that Dunnes’ past conduct had ceased was not a defence to an application for an injunction absent special reasons. In addition to the plaintiff ’s right to an injunction under the CTM regulation, the High Court held that Aldi was entitled to an injunction under section 18(2) of the Trade Marks Act 1996 on the basis that it had shown that an actual infringement had already occurred, and further found that Aldi was entitled to an injunction under Regulation 5(1) of the Comparative Advertising regulations as well as under section 71(2) Consumer Protection Act 2007. This decision is significant, while it doesn’t preclude future comparative advertising campaigns conducted lawfully in accordance with the comparative advertising regulations, it provides trademark owners with the prospect of obtaining permanent court protection against such unlawful comparative advertising campaigns. In September the Advertising Standards Authority for Ireland (ASAI), the independent body committed to promoting the highest standards of marketing communications, unveiled the seventh edition of the Code of Standards for Advertising and Marketing in Ireland. The new code is the result of a comprehensive review undertaken by the ASAI which involved public consultation with a wide range of government departments and agencies; consumer groups; non-governmental organisations and the advertising industry. The objective is to ensure that all commercial marketing communications are ‘legal, decent, honest and truthful’. ASAI members are required to abide by the code and not to publish an advertisement or conduct a promotion which contravenes its rules. The code covers commercial marketing communications and sales promotions in all media including digital (online banners, websites and social platforms), print, outdoor, radio, TV, leaflets/brochures and direct marketing. Some of the key changes to this new edition include new sections on e-cigarettes and gambling; an updated section on food to bring it into line with EU regulations concerning nutritional and health claims; and new rules relating to children’s advertising and environmental claims. The ASAI accepts complaints from anyone who considers that a marketing communication may be in breach of the code. In October the European Court of Justice delivered a landmark judgment in relation to EU data protection laws and in particular, the Safe
Harbour arrangement. Under the EU Data Protection directive, data can only be transferred to countries with an “adequate level of protection” of personal data. The EU determined that the US did not provide an adequate level of protection, so Safe Harbour was created, operating as a tick-box of principles companies could check without any real oversight, to self-certify that they complied with EU data protection and privacy law “adequacy” requirements when transferring EU data to the US. In reaching its recent decision, the European Court of Justice made it clear that the problem with Safe Harbour was not merely one of a company addressing its own basic data protection and transfer mechanisms, but of incompatibility between fundamental EU rights and US security laws that allow access to EU data held in the US. Although the EC promptly issued guidance describing how companies should address compliance challenges, in the immediate interim of the ECJ decision (such as model contractual clauses and binding corporate rules), doubt is now also cast on whether multi-nationals can rely on these other means of transferring data. It’s interesting to note that German authorities have issued a position paper stating that they will not approve any new transfers of data to the US, including those based on alternative arrangements referred to in the EC guidance. These developments will be of particular interest to multinational advertisers who use personal data for direct marketing or behavioural advertising purposes. The law and regulation that applies to advertising in Ireland is found in a diverse range of legislation, common law and codes of practice that overlap with other areas of law. The legal issues that have made the news in the sixmonth period referred to above, illustrate the complexity facing advertisers in Ireland, and the potential for financial and reputational damage. Understanding these responsibilities and acting accordingly is therefore now an essential part of an advertiser’s toolkit to ensure that public trust in the industry is earned and maintained. P
Advertising Law
Roy Keane took legal action over a billboard advertisement by bookmakers Paddy Power featuring Mr Keane as Scottish legend William Wallace in a still photo from Oscar winning film Braveheart
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DSBA Younger Members News
Check Us Out What We Do We are a sub-committee of the DSBA and represent the interests, both professionally and socially, of the younger and most newly qualified members of the profession. We seek to organise low cost CPD events, lectures and social events so that you can both meet your professional requirements and network with your peers. Your co-chairs: Gavin Bluett and Eoin O’Cuillenain
The DSBA Younger Members group has its very own site within a site under the roof of the main DSBA website. To find out more about the DSBA Younger Members and who our committee members are, as well as details of our upcoming seminars and events, please visit http://www.dsba.ie/youngdublin-solicitors.215.html You can also connect with the DSBA Younger Members via LinkedIn where the members actively post interesting articles and stories for your information and entertainment as well as the latest information on our upcoming seminars and events. Check us out at https:// ie.linkedin.com/in/youngdublinsolicitors. The DSBA Younger Members group also has a Facebook page which is updated regularly so please follow and share all interesting information: https://www.facebook.com/DSBA-Younger-Members-275970955920785/
Solicitor Provides Safe Haven LK Shields Solicitors is the official corporate partner to the Haven Partnership. Haven is an Irish NGO working solely in Haiti to facilitate the provision of adequate water, sanitation, shelter and education solutions for vulnerable Haitians. Haven works in partnership with project participants and
the Government of Haiti. Sustainable community development is at the core of all of Haven’s work in Haiti. As part of our corporate partnership with Haven, LK Shields has pledged to send a volunteer to Haiti to partake in Haven’s volunteer week in 2015, 2016 and 2017.
Upcoming Events For details of our upcoming events please join our DSBA Younger Members group on LinkedIn, our Facebook page and our Twitter page. Please also check the DSBA website regularly.
“This year, as part of this initiative, my colleague Kate Kenneally and I were both lucky enough to have been selected to travel to Haiti in April,” says Sarah Browne. “During our time in Haiti, we will be assisting in upgrading a school and building new classrooms and will be based in an orphanage called Hope House Haiti.” LK Shields Solicitors has kindly agreed to cover the cost of the trip and so, all of our fundraising proceeds will go directly to Haven. We have been actively fundraising over the past number of months and have organised a series of events including a night at the Laughter Lounge, an art exhibition and a St Patrick’s Day party. If you wish to donate to this worthy cause we would be delighted and you can do so by visiting https://give.everydayhero.com/ie/sarah-7. No donation is too big or too small.
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DSBA News
New Judicial Appointments
Mr Justice Michael Twomey Mr Michael Twomey was appointed to the High Court in December 2015. A practising solicitor who qualified in 1990 he has an excellent reputation as an expert on partnership law and his 2000 book on partnership law is the leading text. He graduated from University College Cork in 1987 with a Bachelor of law and a Masters of law in 1988. From 1998 to 1999 he was a researcher at the Harvard Law School. He holds a Phd from University College Dublin, 2001 and worked as a lecturer in Trinity College Dublin from 2001 to 2004.
He practised predominantly in the area of chancery and commercial law. Having been appointed to the High Court in 1996, he was the judge in charge of the High Court Commercial List since it was established in 2004. In 2014 he was appointed as a judge of the new Court of Appeal. He is a member of the Bars of England and Northern Ireland and an ad hoc judge of the European Court of Human Rights, and he has also served as chairman of the Commercial Law Centre at UCD and an adjunct professor of law at NUIM. President Kelly is a former president of the Medico Legal Society of Ireland and has served as a member of the council of the Royal College of Surgeons in Ireland. He is also chairman of the Edmund Rice Schools Trust, chairman of St Francis Hospice Dublin and a director of the Dublin Choral Foundation. From 2011 to 2014, he was elected as the first President of the Association of
Judges of Ireland and was interviewed in the Parchment magazine in 2012. Following his appointment the Irish Times noted that there was ‘a general acknowledgement that he was eminently suitable for the job’ and stated that in his spare time ‘he enjoys singing and has a good tenor voice’. His appointment was widely welcomed and there can be no doubt that he is a radical force who will work tirelessly to safeguard an efficient, independent and fair system of justice in the High Court. Judge Brian O’Callaghan Mr Brian O’Callaghan was appointed to the Circuit Court in December 2015. Brian was a practising solicitor in Galway working mainly in civil/commercial litigation with a wide experience also in criminal law, family law, conveyancing and mediation. He was enrolled as a solicitor in 1982. All judicial appointments are wished well in their new roles.
New president of the High Court, Mr Justice Peter Kelly
Mr Justice Kelly appointed President of the High Court Mr. Justice Peter Kelly, (65), was recently appointed as president of the High Court following one year as a judge of the Court of Appeal, and 19 years as a judge of the High Court, reports the Court Services news. He can serve until he is 72 years old. He was educated at O’Connell’s Schools, University College Dublin and the Honourable Society of King’s Inns. He was called to the Bar in 1973 and thereafter spent two years working in the European division of the Department of Justice. He commenced practice at the Bar in 1975 and was called to the Inner Bar in 1986.
Timothy McEniry RIP Colleagues were saddened to learn of the death of Timmy McEniry who passed away in midDecember. Timmy had his practice on Lower Camden Street for many years and was well known and respected in Dublin legal circles. May he rest in peace. the Parchment 57
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In Practice
Litigation NEW LICENSING PROTOCOL ON THE WAY The Courts Service are currently in the process of developing a new computer system to provide for the management of administration and processing of licensing applications within the circuit and district courts. The project commenced in March/April 2015 and at present, the development of the system is approximately 98% complete. Consultations have taken place with the Law Society in the context of payment of court fees and excise duty associated with licensing applications. From a solicitor’s perspective, an online application will be created in a two-stage process. Firstly a legal clerk or solicitor or an employee within the firm will create the application. Once the application is created it will wait until the authorising solicitor within the solicitor’s firm can review it in detail and authorise payment. The preferred method of payment will be recurring direct debit instruction drawn from the solicitor’s firm’s client account. This is very similar to the existing arrangement with Revenue online. The solicitor’s firm will have the option of using a debit
or credit card drawn on the solicitor’s firm office account only to pay the excise fee duty applications. Service on the gardai and fire service where relevant will also be done online and these bodies will have the facility of issuing their consent or otherwise on line via email. Barra O’Cochlain solicitor from the litigation committee met with Mr John Coyle of the Courts Service and invited Mr Robert Connolly, licensing solicitor to attend in order to discuss the rolling out of the system. Dublin is not among the initial pilot offices which are Donegal, Sligo, Carrick-on Shannon, Dundalk, Bray and Wexford. In future online stamping and filing will apply to litigation, so every solicitor will benefit from becoming familiar with the system. There will be an online register enabling all litigation solicitors to search for licensees without having to attend the licencing office. The DSBA has established a working group to liaise with Courts Services and monitor these developments. More detailed information will follow in future Parchments. The Courts Service plans to have the system up and running in Dublin in the near future. DSBA Litigation Committee
Practice Management Legal Capacity Conference 2016 Centre for Criminal Justice & Human Rights, School of Law, University College Cork and Irish Mental Health Lawyers Association Saturday 9 April 2016 10.00 a.m. to 2.00 p.m. Brookfield Health Sciences Complex, Room G10 University College Cork Speakers and chairs include: • Professor Peter Bartlett, Nottinghamshire Healthcare NHS Trust Professor of Mental Health Law, University of Nottingham • Ms Louise Loughlin, National Manager, National Advocacy Service for People with Disabilities • Dr Alan Corkery, Consultant Psychiatrist in Rehabilitation Psychiatry, North Cork Mental Health Services
• Professor Mary Donnelly, School of Law, University College Cork • Ms Áine Hynes, Partner, St. John Solicitors Conference Convenors: Dr Darius Whelan, School of Law, UCC and Ms Joan Doran, Solicitor, Chair, Irish Mental Health Lawyers Association - Conference Fee - €80 - NGOs €30 - Academics - €30 - Devilling barristers and trainee solicitors - €30 - Full-time students – Free - UCC Staff – No charge Further Information from Ms Noreen Delea, Events Manager, School of Law, UCC, tel: (021) 4903220, emailn. delea@ucc.ie.
THE PROPERTY SERVICES REGISTRATION AUTHORITY Practitioners attention is drawn to the fact that it is a statutory obligation for estate or property agents to enter into an agreement with landlords in respect of the management and supply of agency service for the management of rented properties. If acting for a landlord, the landlord’s attention should be drawn to these agreements. The agreements cannot be amended. Practitioners attention is drawn to Section 16, 18 and 23 of the agreement. It is recommended that practitioners read the agreement in its entirety and bring the clients’ (landlords) attention to the agreement and in particular various sections of the agreement. In particular, section 23 limits the liability of the agent to “wilful act or neglect”. It is recommended by the Practice Management Committee that practitioners attention should be drawn to various agreements on the Property Services Regulation Authority’s website. It is the committee’s understanding that side letters can be entered into between the agent and the client (landlord) reducing the liability. This side letter will have to be executed at the same time as the agreement by both agent and client. Ruadhan Killeen Practice Management Committee
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In Practice
Technology E-PRIVACY DIRECTIVE
ADR FOR CONSUMERS
The European Commission has announced that the e-Privacy directive will be amended in 2017. The directive will regulate telecoms companies handling of personal data following the termination of negotiations on data protection regulation last month. The public consultation on the ePrivacy directive will open in spring which will be ready by the end of March in order to allow telecoms and groups with vested interests contribute to the legislation. There is considerable anxiety about the directive which telecoms companies say overregulates their business as it doesn’t impose similar rules on competing services from internet companies like Whatsapp and Skype. Details for submissions will be available on the European Commission’s website closer to the time.
The European Commission has launched a new platform for alternative dispute resolution between consumers and online retailers, effective from January 9th. The platform allows consumers and traders settle their online disputes at the click of a mouse, both for domestic and crossborder purchasers without the need to go through costly court proceedings. When consumers and traders lodge a complaint the dispute resolution bodies will act as referees between the two parties to resolve the dispute. The platform is open to alternative dispute resolution bodies to sign up now, before it is open for use by consumers and traders in February 2016. This follows a month after the commission has proposed modern digital contract rules to simplify and promote access to digital contract and online sales across the EU. The online platform will be available fromwww.ec.europa.eu/consumers/odr/ DSBA Technology Committee
Court of Appeal (Civil) NOTICE RE: CONTACT DETAILS Practitioners and other persons having business with the Court of Appeal (civil) are requested to note the following email addresses: General Enquiries: courtofappealcivil@courts.ie For email of Word version of written submissions: courtofappealcivilsubs@courts.ie In addition to filing a hardcopy of the submissions in the court office within the timeline set down by the court, parties to an appeal are required to email a Word version of the submissions to the above address. Order Requests: courtofappealcivilorders@courts.ie Orders of the Court of Appeal, when perfected, are noted on High Court Search. A plain copy of a perfected order will be emailed (free of charge) to any party to the appeal on receipt of a request via email to the above address identifying the date of the order, the title of the case, the appeal number and the party on whose behalf the request is made. An attested copy of a perfected order is available from the court office to any party to the appeal on payment of the prescribed fee in the sum of €15 by way of stamped fee sheet unless exempt under the fees order. All such requests should be emailed to the above address or made
in person at the court office. The Stamp Office is situated on the first floor of Áras Ui Dhalaigh. An attested copy may also be posted to any party to the appeal on receipt of the necessary fee sheet. The address and telephone number of the court office is as follows: Office of the Court of Appeal (civil), Áras Ui Dhalaigh, Inns Quay, Dublin 7 Tel: (01) 8886121/129/127/120 G Manners Registrar of the Court of Appeal
Dsba Annual Dinner And Law Book Awards - Save The Date WHEN: DSBA annual dinner and Book Awards on Friday, June 17th 2016, 7.30pm. WHERE: Double Tree by Hilton Hotel, Burlington Road, Dublin 4. TICKET PRICE: €75 Full details of the event will be available soon at www.dsba.ie. Enquiries: maura@dsba.ie
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Spring 2016 dsba.ie Photography: Michael Finn
Practice Management Seminar
The DSBA in association with the Irish Mental Health Lawyers' Association (IMHLA) hosted a seminar on February 25th 2016 entitled The Mental Health Act 2001, An Update. The speakers were Patricia Gilheaney, CEO, Mental Health Commission; John Neville, John Neville and Co Solicitors; Niall Nolan, BL and Keith Walsh, Keith Walsh Solicitor. The seminar was chaired by the president of the Circuit Court, Mr Justice Raymond Groarke.
Above L to R: Brendan Hyland, Brendan Hyland & Co; Ita MacGruairk, BL. Left L to R: The Hon Mr Justice Raymond Groarke; Orla Coyne, past president, DSBA
Right L to R: Julia Fox, BL; John Reid, O’Rourke Reid. Far right L to R: John Neville, John Neville & Co; Mark Felton, Felton McKnight Left L to R: Valerie Richardson, Mental Health Tribunal; Caroline McWilliams, chair, Mental Health Tribunal. Far left L to R: John O’Leary, Frizelle O’Leary & Co; Sharon Oates, Sharon Oates Solr; Brian Horgan, Mental Health Commission; Paul Foley, JP Foley & Co
Right L to R: Patricia Gilheaney, Mental Health Commission; Rosemary Smyth, Mental Health Commission; Joan Doran Chair, IMHLA. Far right L to R: Speakers Keith Walsh; Mr Justice Raymond Groarke; Patricia Gilheaney; Niall Nolan, BL; John Neville
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Practice Management Seminar
Photography: Michael Finn
The DSBA Practice Management Committee hosted a seminar on March 1st 2016 entitled The Legal Services Regulation Act 2015. The speakers were Ken Murphy, director general, Law Society; John Sludds, Behan and Associates cost accountants; John Elliot, Registrar of Solicitors and Director of Regulation; Keith Walsh, Keith Walsh Solicitors and Robert Ryan, Doherty Ryan Solicitors and treasurer of the DSBA. Both Eamonn Shannon, president of the DSBA and Simon Murphy, president of the Law Society, addressed the seminar. A capacity crowd attended.
Right L to R: Speakers John Sludds, Keith Walsh, Ken Murphy, Eamonn Shannon, Simon Murphy, John Elliot, Niall Cawley, Robert Ryan Far left: Francis Callaghan, Spelman Callaghan; Finian Doyle, Doyle & Co Left L to R: Ruairi O’Brien, John C Walsh; Mary Griffin, John C Walsh; Sharon Scally, Amorys; Paddy Dawson, HG Donnelly
Far left: Ian McSweeney, McSweeney Sols; Edward Geoghegan, Brian Grogan & Co. Left: Beverly Turner, Taylor Buchalter; Niall Courtney, Taylor Buchalter
Right: Niall McCabe, Bowman McCabe; Kalanne O’Leary, O’Leary Arnold. Far right: Ann Spain, CSSO; Billy Fogarty, CSSO; Ann Fox, Lawplus
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Probate Seminar
Photography: Michael Finn
The DSBA Probate and Taxation Committee hosted a seminar on March 3rd 2016 entitled Modern Family and the Impact on the Succession Act. The speakers were Anne Marie Maher, BL; Brian Broderick, O'Hanlon Tax and Mark O'Riordan, BL. The seminar was chaired by Judge John O'Connor of the District Court
Above L to R: Speakers Brian Broderick; Trea McGuinness; Judge John O'Connor; Anne Marie Maher; Mark O'Riordan, BL. Left: Marjorie Murphy, Murphy McElligott; Frank Egan, Egan & O'Reilly
Right: Mark O'Riordan, BL; Avril Gallagher, Gallagher & Co. Far right: Lynne Northridge, Hayes Sols; Eugene Davy, Hayes Solr; Paula Duffy, Paula Duffy Solr
Left: Nora Morris, James A Connolly; Lorna Shannon, Gaffney Halligan. Far left: Eva O'Brien, Reidy Stafford; Iseult Cody, Eoghan P Clear Solr Right: Rosemary Gantly, Rosemary Gantly; Maeve Lynch, Legal Aid Board. Far right: Paul Smyth, Smyth & Son; Mary Arnold, O'Leary Arnold
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Closing Argument Stuart Gilhooly
Stuart Gilhooly is a partner at HJ Ward & Co Solicitors and former president of the DSBA. He has won a number of journalistic awards for his writing
Setanta Through the Looking Glass
T
his column has always had a soft spot for Humpty Dumpty. Maybe it’s because of his status as one of the earliest personal injury claimants, though folklore has it that there was a finding of a large degree of contributory negligence in his tragic fall from the wall. It’s unclear as to whether his most famous words of wisdom were uttered before or after his tumble when Lewis Carroll placed him in such a prominent role in his sequel to Alice in Wonderland. On the offchance that Mr Dumpty’s declaration has slipped your mind, it arose from Alice taking him to task on his use of language which he appeared to use in a completely erroneous context and he rebuked her scornfully by saying “when I use a word, it means just what I choose it to mean, neither more nor less.” While it’s unlikely that the Motor Insurers Bureau of Ireland (MIBI) have used Through the Looking Glass as reference material in their litigation with the Law Society over the liability for compensation in the heavily fought Setanta case, the words of Lewis Carroll must have rung around the heads of four very experienced judges who heard the High Court action and its subsequent journey to the Court of Appeal. In the end, judges Hedigan (in the High Court), Ryan, Finlay-Geoghegan and Hogan all decided that the words in the MIBI agreement did in fact mean what they appeared to mean – and not some Dumpty-esque abomination. Essentially, as often happens in protracted and complex litigation, it all came down to a relatively simple question. Did the statement at Clause 4.1.1 of the most recent agreement, and one which had appeared in every previous agreement back to the original one in 1955, that all judgments or orders to pay for injury
or death, whether covered by a policy of insurance or not, that are not satisfied within 28 days must be paid by the MIBI, apply to unsatisfied Setanta judgments? The MIBI argued that it didn’t apply to insolvent insurers while the Law Society maintained that it was hard to see what else it could refer to. Three days in, both the High Court and Court of Appeal, of course, saw a great deal of extraneous material introduced by both sides but ultimately, it fell to the MIBI to argue against the obvious meaning of the words in Clause 4.1.1. and all four judges were unable to apply the Dumpty logic resulting in a costly defeat for the MIBI and the insurance industry. This has led to further and better bleating and whinging from an industry that has made moaning its defining characteristic. Since the middle of last year, insurers have spent what must be a small fortune in PR advice to consistently blame everyone but themselves for rising insurance premiums. Setanta is merely the latest excuse in a long litany of complaints which ranges from whiplash claims to lawyers’ fees to Injuries Board ineffectiveness and back to court awards. No mention is ever made of poor investments, incompetent underwriting and appalling reserving. They prey on a media desperate for an easy headline and a public that simply cannot be expected to understand or care about the intricacies of claims management. And yet, like so many of the reasons for falling profits in this industry, the Setanta case was entirely avoidable, or at the very least, could have been managed so much better. For nearly a year before the High Court asked the Law Society to bring a case to unblock the impasse that had formed, the Law Society had offered to meet both the
They prey on a media desperate for an easy headline and a public that simply cannot be expected to understand or care about the intricacies of claims management
Department of Transport and the MIBI in order to try and broker a solution. This offer was arrogantly and emphatically rejected in the most dismissive tones by both parties stating they had “unequivocal” advice that the MIBI had no liability. This advice, despite being sought on several occasions was never produced, and has still not been seen. The result is that two years have now passed since the liquidation and no claimant has received a cent. Not only this, but because no cases could be settled, the cost of running each case has been maximised and almost certainly a premium in damages has resulted because of the longevity of the actions. At no point have the craven insurance industry acknowledged the gross dereliction of their duty to innocent victims, some of whom have suffered horrific injuries. In one case, a man who has a short life span has not been paid any of his €400,000 damages which the MIBI would like to have had reduced by 35% and paid by the Insurance Compensation Fund (ICF) instead. Only the determination of the then president of the High Court, Nicholas Kearns and the Law Society have now ensured that he, and others, will now belatedly receive their whole entitlement. Of the many disingenuous proclamations from the insurers, the worst is surely that premiums will rise because of the decision. If they do, it will be marginal. If the MIBI wasn’t liable, the ICF would have paid 65% of the damages and all costs anyway which would be funded by a 2% levy on insurance premiums. As for future insolvencies, it can be dealt with at the swish of a pen by simply changing the MIBI agreement to expressly exclude insolvencies. You will, though, hear none of this. It is far more likely that the insurers will ask you, like Alice, to believe six impossible things before breakfast. Off with their heads. P
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