Parchment spring 2018

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D UB LIN SOLICITORS’ B AR ASSOCIATION MAGAZ INE | SPRIN G 2018 | ISSU E 75

ERASING ELECTION OUTCOMES Can election results really be challenged?

ROBERT RYAN CROSS-EXAMINED DSBA SUBMISSION ON THE ADMINISTRATION OF JUSTICE

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Everything you need to run a law firm

Dunne/0012/AJC/2018 Dunne

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Financial Summary

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DETAILS

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Office Accounting

Import & Scanning

Client Funds

Timesheet

DETAILS & CORRESPONDENCE

Mr James Dunne & Mrs Agnes Dunne

Matter Type

Purchase of 14 Beech Park Avenue

Compliance

Date AML checks complete 08/03/2018.

Seller

Tranters LLP - Ref: 67877/Brennan

Sellers Solicitor

Dr Brian Brennan 14 Beech Park Avenue, Foxrock, Dublin 18

Land Registry

Land Registry (Dublin)

Conveyancing Details

Price: â‚Ź695,000.00

Estate Agent

Greenfold Estates - Ref: 14 Beech Park...

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HSBC Bank - Ref: Dunne/87876566/...

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Account Number: 56791572

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City of Dublin Council

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District: Dublin

FINANCIAL SUMMARY

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GENERAL TRUST

OFFICE

Buyer Dunne - Purchase from Brennan DETAILS CORRESPONDENCE CALENDAR Scanned Property Plans

Created: 23/03/2018, 10:23 AM From: Marian Hughes

Mar 23, 2018

JL

Mr James Dunne & Mrs Agnes Dunne

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JL Type Mar 21, 2018 Matter

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Purchase of 14 Beech Park Avenue

Created: 23/03/2018, 10:23AM

Dunne - Documentation required for sale From: Marian Hughes JL Mar 21, 2018 michael.cullen@cullenlaw.ie Compliance Survey Report - 14 Beech Park Avenue

Dunne - Purchase from Brennan Created: 23/03/2018, 11:00 AM From: Marian Hughes

Scanned Property Plans

Mar 20, 2018

JL

Dunne - Purchase from Brennan

Completion StatementCreated: 23/03/2018, 11:00AM

JL Brennan Dr Brian Mar 19, 2018

Tranters LLP - Ref: 67877/Brennan

Created: 21/03/2018, 10:43AM From: Marian Hughes

JL Letter to Lender sending Report on Title Property

Mar 16, 2018

Dunne - Documentation required...

14 Beech Park Avenue, Foxrock, Dublin 18

Created: 21/03/2018, 11:22AM Purchase from Brennan

JL

1 Mar 15, 2018 Land Registry

Survey Report - 14 BeechLand Park...

Registry (Dublin) Created: 20/03/2018, 2:50PM

1

Created: 21/03/2018, 10:43 AM From: Marian Hughes

1

From: Marian Hughes

Sellers JL Solicitor Telephone with Client Scanned - advised of possib...

Mar 18, 2018 Property Plans

From: Marian Hughes

Created: 23/03/2018, 11:13 AM From: Marian Hughes

Seller

From: Marian Hughes

Jamesdunne@mail.ie

Letter to Solicitors confirmation

Date AML checks complete: 01/03/20...

Letter to Solicitors confirming ins...

Created: 23/03/2018, 11:13AM

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0012/AJC/2018

michael.cullen@cullenlaw.ie

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Mar 23, 2018

JL

Staff 9:41 AM 100% LEAP Marian Letter to Solicitors confirming instructions JL Hughes Mar 23, 2018 Dunne

Mr Brian Brooks Lender

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Dunne/0012/AJC/2018 - James/Agnes Dunne, Property Purchase

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150017 Marian Hughes

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Dunne - Documentation required Created: 21/03/2018, 11:22 AM From: Marian Hughes

1

Survey Report - 14 Beech Park Avenue Created: 20/03/2018, 2:50 PM From: Marian Hughes

From: Marian Hughes

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Spring 2018 dsba.ie

From the Editor

W

elcome to the spring edition of the Parchment. The winter looks to be almost over and the upcoming Easter break will be most welcome. A time to draw breath and energise.

The DSBA recently made a significant submission to the Review of the Admiistration of Civil Justice.

A group chaired by the President of the High Court, Mr Justice Peter Kelly will review submissions and report to the Minister for Justice and Equality. The DSBA submission sets out a number of suggestions for improving practice and procedure as well as identifying areas to improving the judicial process in civil matters. The DSBA submission is available to view at www.dsba.ie.

The untimely death of Cara O’Hagan, partner and head of the commercial property team at Matheson was a great shock to the legal community in Dublin and beyond. I had the privilege of working alongside Cara in Matheson during my time at the firm she dedicated the last 22 years of her legal career to. She

was a superbly talented and exceptional solicitor but more importantly, she was a great colleague. Her passing reinforces how fragile life can be and how important it is to look out for each other. We never know what awaits around the next corner.

I would encourage you to read John Hogan of Leman Solicitor’s Closing Argument on page 64. His refreshingly honest ‘take’ on the past ten years in practice gives an interesting insight into the ups and downs of his entrepreneurial verve.

Have a great Easter break.

John Geary jvgeary@gmail.com

DSBA COUNCIL 2017/2018

ROBERT RYAN DSBA President

GREG RYAN DSBA Vice President

DIEGO GALLAGHER Honorary Secretary Chair of Family Law Comm.

TONY O’SULLIVAN Programmes Director

JOSEPH O’MALLEY Treasurer

SUSAN MARTIN co-Chair of IP & Technology Committee

LAURA HORAN Chair of Younger Members’ Committee

NIALL CAWLEY Chair of Practice Management Committee

PAUL RYAN Chair of Commercial Law Committee

MATTHEW KENNY

JOAN DORAN Chair of Mental Health & Capacity Committee

KILLIAN O’REILLY Chair of the Litigation Committee

RONAN McLOUGHLIN Chair of the Property Committee

CIARA O’KENNEDY Chair of the Employment Law Committee

GERARD O’CONNELL Chair of the Parchment 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 Laura Horan Áine Hynes Killian Morris Kevin O’Higgins Joe O’Malley Robert Ryan 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 Caron Flynn T: 01 707 6022

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

WHEN YOU HAVE FINISHED WITH THIS MAGAZINE PLEASE RECYCLE IT.

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Spring 2018

Contents 6

DSBA Submission on the Administration of Civil Justice

80% of my time as a solicitor is spent on drafting or amending documents, so it is extraordinary to think that so little time is spent on teaching such a fundamental skill page 34

CROSS EXAMINED... ROBERT RYAN

The DSBA sets out a summary of improvements suggested recently to the Civil Justice review group

10

Recounts and Re-Runs

12

The Mediation Act 2017

14

DSBA Book Awards

16

A New Dawn for (Limited) Partnerships?

18

A Day in the Life of..

Hugh McDowell, BL examines the obstacles on challenging election or referendum results

Bill Holohan provides an overview of the legislation which he says places new statutory obligations on litigants to consider alternative dispute resolution options

We announce the nominees for the annual prestigious DSBA Book Awards

Conal Geraghty assesses the partnership landscape

Kevin O’Higgins catches up with Intel solicitor Richard Devereaux

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 2018 dsba.ie

Contents

REGULAR FEATURES 01 Editor’s Note 04 President’s Message 50 In Practice 52 DSBA News 58 Photocall 64 Closing Argument

18 24

Code of Practice on Longer Working Age Ciara O’Kennedy reports on the Workplace Relations Commission published code of practice

26

Domestic Violence Legislation Overhaul

32

Who Is Your Real Competition?

34

Banking on the Profession

David Stafford and Columb Fortune review the new Domestic Violence Bill

Flor McCarthy has advice for keeping your clients happy

42

Killian Morris cross examines DSBA President Robert Ryan

40

Family Law and the Mediation Act 2017

42

Legal Professional Privilege and Data Protection

Keith Walsh examines how the new Mediation Act 2017 will change the practice of family law

Barra Lysaght and Muireann Granville explore the impact of the Data Protection Bill 2018

44

Key Employee Engagement Programme

48

Time Limits in Equal Status Litigation

Lorna Osborne looks at the introduction of the Key Employee Engagement Programme (KEEP)

Maura King advises on matters relevant to determining the time period for making a claim

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Message from the President

Spring Time….

Hopefully

A

s President of the Dublin Solicitors’ Bar Association, may I welcome you, our members and readers, to this spring edition of the Parchment

magazine.

Now that we are passed the ‘Beast from the East’ weather front, one hopes that spring has begun in earnest.

It has been a busy few months both sides of Christmas for the DSBA across the spectrum of our activities.

We commenced the DSBA’s CPD 2018 programme in January with a number of well attended seminars and have a full programme of seminars for rollout through to mid-summer.

A cross-DSBA Committee group prepared a detailed submission in February to the Review Group chaired by Mr Justice Peter Kelly on its review of the administration of civil justice in Ireland. The submission can be viewed on the DSBA website. Thanks to all involved in preparing the submission, in particular the chair of the DSBA Litigation Committee, Killian O’Reilly.

Our taskforce on the Legal Services Regulation Act 2015 continued its engagement though meetings and correspondence with the Legal Services Regulatory Authority on implementation of that Act, with particular focus on business structures, legal costs, education and the practice levy. The topic of education of legal practitioners (in particular, of trainees) will shortly be put out to consultation by the Authority as will its review of the 2015 Act, now that 18 months has elapsed since the establishment of the Authority.

The timing as to implementation will become clearer with the publication shortly by the Authority of its strategic plan. Much of the implementation of the Act has been dependent on the issue of ministerial commencement orders for various sections of the Act. In that regard we understand that the issue of two commencement orders required for implementation of legal partnerships (including by definition, limited liability partnerships) is imminent.

The two new DSBA precedent letting agreements recently launched by the DSBA Conveyancing Committee, one residential and one business, have proved to be a great success and very popular with our members.

Turning to events, our annual dinner for the judiciary was held in late January and attended by over 60 judges and 40 other guests. We were honoured with speeches from the Chief Justice, Frank Clarke and John Edwards, judge of the Court of Appeal, and with yours truly contributing a few words on behalf of the DSBA. Our thanks to Maura Smith and Elaine Given for their work in organising the dinner.

Our Social Committee reactivated the northside and southside members’ social and collegial events with two very enjoyable gatherings of DSBA members held in midFebruary. Our thanks to the Chair of the Social Committee, Matthew Kenny, for organising both events.

The DSBA annual conference 2018 in

Venice is now booked out – and we are delighted that so many of our members and friends have committed to attend this exciting event.

On a concluding note, the DSBA marked in February (by a President’s message) the 100th year anniversary of the provision by law of the right to vote for women. In doing so we give recognition to the necessity, past and present, of ensuring equal treatment between men and women in all aspects of life and not least, in the legal profession.

Finally, we thank all our members who have paid their DSBA subscriptions for 2018; and for those who have yet to do so – we thank you in anticipation!

Robert Ryan, DSBA President

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DSBA Submission for the Review of the Administration of Civil Justice The Dublin Solicitors’ Bar Association welcomed the opportunity to make a detailed submission to the review group on the Administration of Civil Justice in February. As the largest Bar Association in the country, the DSBA was uniquely placed to provide a practitioner’s perspective on the range of improvements that can be made to our civil law system

I

n framing our submission, the DSBA focused where possible, on practical and achievable improvements for the administration of justice for all users, without significant financial cost or operational upheaval.

The following are some of the points contained in the DSBA submission. Many of the recommendations are aimed at improving the efficiency of the civil litigation process and minimising unnecessary bureaucracy.

1. Plain Language Amend court forms to include plain language. The use of plain modern language throughout the court rules will increase accessibility (e.g. thereof and forenoon), minimise delay and improve efficiency for all court users.

2. Uniform Use of Terms Amend court forms to include uniform use of terms to promote clarity and understanding (e.g. use of plaintiff/claimant and defendant/respondent). The current practice can cause confusion especially where there are lay litigants in the case and where for example, the respondent is the moving party in a motion.

3. Case Management and Listing Case management and case progression need greater promotion and facilitation. Properly deployed, they have the potential to increase efficiency, save time and costs, and reduce the demand on judicial resources.

They would also provide greater certainty in the scheduling of cases, as only those cases which are going ahead on a day would be listed.

As a first step we recommend the full implementation of S.I. No. 254 of 2016 (Rules of the Superior Courts (Conduct of Trials) 2016 and S.I. No. 255 of 2016 Rules of the Superior Courts (Chancery and Non-jury Actions and other Designated Proceedings: Pre-Trial Procedures) 2016.

The case progression procedure under the Circuit Court rules is not currently being utilised to its full potential or indeed at all.

4. Uniform Procedures We recommend a uniform approach to basic procedures across all court jurisdictions. The absence of such uniformity gives rise to the risk of inefficiencies and added costs.

5. Registered Post It is a necessary proof in each case that when case documents are delivered, an Affidavit of Service is lodged with the court to establish proof of service. Excluding the delivery of plenary summons or personal injuries summons in the High Court and certain other enforcement documentation, generally speaking, registered post is used for service of the said documentation. Section 7(6) of the Courts Act 1964 provides that a ten-day waiting period is then required before swearing the Affidavit of Service. Since this statute was passed, technology has moved on and accordingly it is possible to track and trace receipt signatures within a day or so of sending the registered post. Accordingly, it should be possible to amend the rules to accept an Affidavit of Service earlier than the ten-day waiting period, once the signature page has been exhibited. This would have the effect of expediting the proof of service being lodged to court.

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Spring 2018 dsba.ie

News

6. Declaration of Service The District Court rules provide that service can be proved by making a declaration of service and lodging same to the District Court Civil Office. There is no stamp duty on a declaration of service. While it is possible to make a declaration of service in the Circuit Court, experience shows that the office is reluctant to accept such declarations. The recommendation regarding proof of service by post is that the rules should be amended to accept a declaration of service and no stamp duty should be payable thereon. The declaration would make it easier and cheaper for court users.

7. Payment of Stamp Duty Unless one is in possession of a franking machine, it is necessary for practitioners to attend the Stamping Office at the Four Courts in order to put stamp duty on documentation. The hours kept by the Stamping Office are limited and it is sometimes necessary for an affidavit or other court document to be brought before the court urgently and without stamp duty, a situation which has to be rectified after the fact. Apart from the payment on the originating document (e.g. plenary summons/civil bill), it is recommended to put in place facilities for practitioners to pay stamp duty online with reference to the title and the date of the document and to print out a receipt for stamp duty which can be attached to the original. This would be along similar lines to the payment of stamp duty on deeds to the Revenue Commissioners.

8. Filing Requirements In any civil case in the High Court or Circuit Court, it is only necessary for the parties to lodge to the court the originating documents, affidavits and motions. It is not necessary for example, for the parties to lodge notice for particulars, replies to particulars, notice to produce, defence, but it is necessary for them to lodge the affidavits of verification, say, relating to them. It should be necessary for parties to file (but not stamp) the pleadings of this nature to ensure that all documents are on the court file.

This would be of particular benefit where one party is, for example, a lay litigant and would ensure the court had full visibility of all pleadings.

9. Personal Injuries – Affidavits of Verification Currently as the rules stand, it is necessary for the plaintiff to lodge an affidavit of verification with regard to all pleadings. Until for example, an affidavit of verification is filed for the personal injuries summons or replies to particulars, it is not possible for the plaintiff to issue a motion against the defendant. It is not necessary for the defendant to have lodged an affidavit of verification of its defence before issuing a motion against the plaintiff. This is uneven and should be amended so that both parties have equality of process.

10. Notice for Particulars The procedure regarding notice for particulars in the Circuit Court is contained in Order 17 of the Circuit Court rules. Order 17 Rule 2 provides that the defendant can raise particulars any time after

the delivery of the civil bill and before the defence has been filed. This means that unless exceptional circumstances arise, the pleadings are closed at the point the defence is served. This makes for a streamlined procedure in terms of pleadings and should result in a more detailed defence to enable the plaintiff to prepare fully for case the defendant intends to make.

11. Sequence of Pleadings Generally speaking, once the defence has been served, the pleadings are deemed closed. This is a sensible approach, meaning that there is an end point in the pleadings at which time any advice on proofs or discovery can be considered. Frequently however in civil proceedings, a very general defence with traversed denials is served without containing any real detail about the nature of the defence, and which in turn gives rise to issue of a notice for particulars. (Order 19 rules of the superior courts).We recommend that a notice for particulars can only be served following service of the defence in limited and prescribed circumstances or with leave of the court.

It is a necessary proof in each case that when case documents are delivered an affidavit of service is lodged with the court to establish proof of service

12. Contents of Defence One of the reasons that cases take so long to settle is because of the inability (or failure) of defendants to deal with the matters at issue in a meaningful way. At the present time, by virtue of the manner in which Sections 12 and 13 of the Civil Liability and Courts Act 2004 are interpreted, a defendant continues to put in mere traverses by way of defence. One has no idea, from reading a defence, as to what a defendant’s position is.

Defendant lawyers are under no pressure to set out their true position until the case comes to court. That is when the case settles.

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One of the reasons that cases take so long to settle, is because of the inability (or failure) of defendants to deal with the matters at issue in a meaningful way

defence that needs to be brought to bear by the defendant, there is a greater prospect of cases resolving earlier and cheaper, and with the consequent benefit to the public interest. If a D] defendant had to set out what his/her position was with particularity that would require focus to be placed at the time of the defence, particularly when such a defence has to be verified by affidavit.

13. Medical Records In personal injury cases, the plaintiff will usually be asked after the defence has been served, to produce historical medical records. There is hardly an exception to this case. The requests in time and scope can vary. Obtaining records from medical practitioners must then be carried out separately in each case in a different way. Given the inevitability of these requests, the court could consider introducing a practice direction whereby with the personal injuries summons, relevant medical records for a period of three years prior to the incident which gave rise to the personal injury could be served. If anything, further is sought by defendant outside of that timeline, it would require an order for discovery, if not agreed.

14. Side Bar Orders Order 30 provides the list of circumstances in which the County Registrar may issue an order of the Circuit Court via a side bar. This could be extended to include a provision to renew or reissue an execution order in the office, and thereby obviate the necessity of a court appearance.

15. Enhanced use of Registrars Greater delegation of non-contentious matters to registrars and use of email to deal with noncontentious matters such as adjournments where the parties agree. Better management of adjournments with strict application of the rules in this regard.

16. County Registrars Transfer jurisdiction of motions for judgement in default of defence and appearance to the County Registrar in equity matters. Currently all civil motions of this nature come before the County Registrar save in equity matters. In equity matters these motions are listed before a judge of the Circuit Court. Very often further affidavits or proofs are required before the court can proceed with the matter. That being the case, by making the motions returnable before the County Registrar in the first instance, it would ensure that before matters are listed before the judge all outstanding items have been attended to.

17. Review the Rules on Tender and Lodgement The time limits for the plaintiff to respond to a lodgment/tender are short and can be impractical.

The time allowed for example, might not permit the update of information to support the plaintiff in

making a fully informed decision – e.g. obtaining an updated medical report. Order 22 RSC could be amended to provide greater clarity.

18. Interrogatories Expand the use of interrogatories without the requirement for leave of the court. They help to narrow down the issues and prevent general allegations in pleadings and assist both parties to prepare for and focus on the issues to be tried in the case.

19. Assignment of Judges Consider assigning a case to one judge for its duration so that familiarity with the case will lead to more efficient management of the case.

20. Liquidated Sum Proceedings Progress the proposal to centralise the liquidated sum proceedings in one office (unless they become defended). This would remove a significant burden from the other court offices.

21. Publication of Court listings Notification, communication and publication of listings and hearing dates (i.e. legal diary and similar) need to be improved and modernised across all courts, with better search facilities.

22. Reading Pleadings The practice of reading aloud the pleadings and affidavits at the start of each case is very time-consuming. Effective case management would assist in focusing on the issues in dispute and reducing the amount of court time taken up with reading matters into the record.

23. Judgements The delivery of judgements needs to be timely. To this end, greater resources are needed together with improved case management and scheduling.

24. Class Actions There is a need for a dedicated process for ‘class actions’.

The DSBA submission set out a detailed contribution in respect of reviewing the law of discovery, Alternative Dispute Resolution (ADR) in the lower courts, e-filing of documents, e-licensing and other areas of civil litigation.

Conclusion The DSBA hopes that our submission is of interest and assistance to the review group and we stand ready as required, to provide further input regarding the present review and any improvements or changes as may be proposed by the review group. P The DSBA submission is available to view in full at www.dsba.ie The DSBA wishes to acknowledge the considerable input of Killian O’Reilly, Susan Martin, Joan Doran, Brian Ormond and Aine Hynes and the contributions from many DSBA members.

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Recounts and Re-runs

CHALLENGING THE RESULTS OF ELECTIONS AND REFERENDUMS IN THE IRISH COURTS Barrister Hugh McDowell examines two recent judgments delivered by the Supreme Court – Jordan v Minister for Children and Youth Affairs [2015] 4 I.R. 232 and Kiely v Kerry County Council [2016] 2 I.R. 1 – which have illustrated the significant obstacles facing a petitioner wishing to challenge the result of an election or referendum

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ith a referendum on the Eighth Amendment scheduled for summer 2018, a possible presidential election in November 2019, local and European elections in the summer of 2019, and given the precarious position of the minority government, it is eminently possible that election and referendum petitions will be presented before the High Court with some frequency in the near future. In that context, this article focuses on the legal threshold which a prospective petitioner must meet in order to successfully impugn an electoral result.

Legislative Background Under section 42 of the Referendum Act 1994, leave will only be granted to a petitioner to challenge a referendum result if they demonstrate (a) prima facie evidence of one of the grounds of challenge provided for at section 43 (e.g. an irregularity or illegality in the conduct of the referendum); and (b) that the conduct grounding the challenge materially affected the result of the referendum as a whole. An identical test applies to a petition challenging the outcome of a presidential election.

By contrast, in order to challenge the result of a local, Dáil or Seanad election, a petitioner must show an obstruction, hindrance, mistake or other irregularity in the conduct of the election which, if established, is likely to have affected the result of the election. No requirement of materiality exists in the context of petitions challenging these elections (see e.g. section 5, Local Elections (Petitions and Disqualifications) Act 1974).

The Jordan and Kiely Decisions The decision in Jordan followed on from the decision of the Supreme Court in McCrystal v Minister for Children [2012] 2 I.R. 726, in which it was held that a pamphlet produced by the government during the 2012 Children’s Rights Referendum campaign violated the McKenna principles (which prohibits the expenditure of public funds to advocate for a particular outcome in a referendum). Joanna Jordan’s petition challenging the result of the referendum on the basis of the illegality identified in McCrystal, was refused in the High Court, and was appealed to the Supreme Court.

Separately, Dan Kiely, an independent candidate in the Listowel area in the 2014 local election, brought a petition challenging the outcome of that election on the basis that ballot papers containing numerical sequences which commenced with ‘3, 4, 5…’ or ‘4, 5, 6…’ were deemed to contain a first preference vote for the first-listed candidate, whereas they ought to have been excluded. Customarily, European elections and local elections are held on the same day, every five years, from which it seems reasonable to infer that some voters may have distributed their preferences across two ballot papers – in other words, commenced with ‘1, 2…’ on their European election ballot paper, before continuing with ‘3, 4, 5…’ on their local election ballot paper.

After the Circuit Court found that the returning officer had properly included the disputed ballots, Mr Kiely brought an appeal on a point of law directly to the Supreme Court, as provided for under the 1974 Act.

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Spring 2018 dsba.ie Hugh McDowell is a practising barrister, a lecturer in constitutional law at Griffith College, Dublin and the co-author of the forthcoming second edition of Politics, Elections and the Law

What is the Legal Test for a Petition?

Much of the Supreme Court’s analysis in Jordan concerned the meaning of the phrase ‘affect materially’ as it appears at Section 42 of the 1994 Act. O’ Donnell J. held at paragraph 236 that the test should be interpreted as follows: ‘Accordingly, I would hold that “material effect on the outcome of a referendum” involves establishing that it is reasonably possible that the irregularity or interference identified affected the result. Because of the inherent flexibility of this test, it may be useful to add that the object of this test is to identify the point at which it can be said that a reasonable person would be in doubt about, and no longer trust, the provisional outcome of the election or referendum.’

It is clear therefore, that it is the ‘outcome’ of the referendum (i.e. whether the proposed amendment was carried or not) rather than the ‘result’ (i.e. the margin of the difference between the Yes votes and the No votes) which must have been affected by the irregularity or interference. Furthermore, the petitioner does not have to establish that the outcome was in fact affected; rather, it is sufficient to show that it was reasonably possible that the outcome was affected.

It is of interest then, that the word ‘materially’ does not appear in the equivalent test for local and by extension, Dáil and Seanad elections. In his judgment in the Kiely case, McKechnie J. held at paragraph 107 that a lower standard of review would apply to these types of elections: ‘…the verb “affect” is not qualified in any way, unlike that in Jordan v Minister for Children and Youth Affairs, therefore the same level of impact is not required.

However, a “possible” effect only would not be sufficient and neither would some insignificant or immaterial effect meet the threshold. Rather in my view, the petitioner must identify consequences, referable to the result, which are not electorally inconsequential…’

The Outcomes in Kiely and Jordan In the Jordan case it was held that the petitioner had

not adduced sufficient evidence that the illegality of the government’s pamphlet had materially affected the outcome of the Children’s Rights Referendum within the meaning of the test as interpreted by O’ Donnell J. and accordingly, the decision of the High Court was upheld. By contrast, the Supreme Court held in Kiely, that the returning officer had been wrong to include ballot papers on which the voting sequence commenced with a number other than ‘1’, as those ballot papers did not ‘clearly indicate a first preference’ as required by law. As this irregularity with the count was ‘reasonably likely’ to have affected the outcome, a recount was ordered in Listowel.

There were two important factual distinctions which were evidently operating in the differing outcomes to the cases. The first is that, whereas Mr Kiely missed out on the seventh and final seat in Listowel by just two votes, the Children’s Rights Referendum was carried by a margin of nearly 170,000 votes. Accordingly, although both petitioners had to demonstrate the possibility or likelihood of an affect on the outcome on the balance of probabilities, the evidential threshold was patently more easily reached in Kiely than in Jordan.

Secondly, the ‘mechanical’ nature of the defect in the Kiely case was easily cured by a recounting of the ballot papers which had been retained pending the appeal.

By contrast, if the appeal in Jordan had been successful, the referendum would have had to be run afresh. The judgment of O’ Donnell J. in the Jordan decision makes clear that a re-run of a referendum ‘is not like a laboratory experiment where it is possible to alter a single variable’ and thus ‘is not something to be lightly undertaken’.

Electoral Law

It is eminently possible that election and referendum petitions will be presented before the High Court with some frequency in the near future

Conclusion The Supreme Court has provided useful guidance on the challenges facing petitioners challenging the outcomes of electoral processes. The applicable legal threshold is a high one, particularly as regards referendums. Doubtless the courts will have to grapple with these principles in some detail in the not-toodistant future. P the Parchment 11

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The Mediation Act 2017 The Mediation Act 2017 became law on 1st January 2018. Bill Holohan provides an overview of the legislation which he says places new statutory obligations on litigants to consider alternative dispute resolution options

T

he Mediation Act 2017 (no 27 of 2017, the “Act”), following certain amendments to the draft bill, was passed by both houses of the Oireachtas in September 2017 and signed into law by the President, Michael D Higgins on 2nd October 2017. The Commencement Order was signed on 8th December 2017 and the Act commenced on st January 2018.

The general scheme of the bill received prelegislative scrutiny in May 2012. Seven bodies associated with the mediation sector including the Chartered Institute of Arbitrators Irish Branch and the Law Society made written and oral submissions to the Joint Committee on Justice, Defence and Equality.

A further seven bodies made written submissions on the general scheme to the joint committee. A report published by the joint committee in June 2012 indicated that the main points of interest raised in the submissions were public awareness of mediation, a national register of mediators, confidentiality and codes of practice for mediators.

In addition, the Act is not intended to be interpreted as replacing any mediation or other dispute resolution process which is already provided under any other enactment, contract or agreement.

The key objective of the bill is to facilitate the better integration of mediation into the civil justice system. It achieves this by providing clarity in relation to: • the general conditions of mediation; • role of the parties and the mediator in mediation; • confidentiality of mediation communications; • enforceability of mediation settlement; • the establishment of a code of practice for mediators; • the establishment of a Mediation Council to oversee the sector; • the duty of a solicitor to advise a party in relation to mediation; • the duty of a barrister to advise in relation to mediation; • the role of the court in relation to mediation; and • the requirement to attend information sessions on mediation in family law and succession proceedings.

What Does the Act Provide?

The Department of Justice in Ireland has described mediation as “a viable, effective and efficient alternative to court proceedings, thereby reducing legal costs, speeding up the resolution of disputes and reducing the stress and acrimony which often accompanies court proceedings”. The 2017 Act is the latest legislative development in the area of Alternative Dispute Resolution (ADR) within the Irish legal system, since the Construction Contracts Act 2013.

The Law Society, CIArb Ireland and other groups had been campaigning for the passage of the Mediation Bill since making submissions to the Oireachtas Committee on Justice in 2012.

The Act also provides for the regulation of mediators and the setting of standards and establishing codes of practice. Mediators will have to provide people using their services with details of their training, qualifications, experience, etcetera.

The Act for the first time now places a new statutory obligation on litigants to consider mediation as a means of resolving a dispute. The Act applies to disputes with the following exceptions: • arbitrations under the Arbitration Act 2010; • disputes which are the subject of investigation by the Workplace Relations Commission; • appealable matters within the meaning of section 949A of the Taxes Consolidation Act; • proceedings before tribunals or commissions of investigation; • proceedings in the High Court by way of judicial review; • proceedings against the State regarding infringements of fundamental human rights; • proceedings under the Domestic Violence Acts; and • proceedings under the Child Care Acts.

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Spring 2018 dsba.ie Bill Holohan is principal of Holohan Law, Cork and Dublin. He is an accredited mediator

It is to be hoped that the passage of the Act will relieve the pressure on the courts and will alleviate the backlog of cases currently before all courts, and that the greater use of mediation by legal practitioners and litigants will significantly reduce time and costs involved for all lawyers’ obligations under the Act regarding advising on mediation.

Solicitors and barristers now have a statutory obligation to advise their clients of the mediation option and provide information on mediation services including details of mediators, information about the advantages and benefits of mediation, information on confidentiality obligations and the enforceability of mediation settlements. Judges may also adjourn legal proceedings to facilitate mediation.

Prior to issuing court proceedings, the Act requires practising solicitors to advise clients that they should consider mediation as a means of attempting to resolve disputes and solicitors must provide their client with information in respect of mediation services, mediators, the costs of mediation and the advantages of engaging in mediation. In the event that notwithstanding this, the client wishes to proceed to issue court proceedings, then the solicitor will have to swear a statutory declaration to the effect that this obligation to advise the client was complied with. If for any reason, the practising solicitor fails to comply with this requirement, then the court has the power to adjourn the proceedings for such period as it considers reasonable to facilitate the solicitor to comply with the obligation. Significantly, solicitors practising “in-house” must also comply with this obligation. Barristers in furnishing advices and/or drafting proceedings, must also comply with such a requirement to furnish advice to consider mediation.

Mediation

Mediator’s report to a Court following Court Referred Mediation In the event that a settlement is not reached, the parties to the dispute are free to continue with the proceedings and have the matter re-entered before court. Under the Act, the mediator is obliged to provide a report which details (a) where the mediation did not take place, a statement of the reasons as to why it did not take place; or (b) where the mediation took place (i) a statement as to whether or not a mediation settlement has been reached between the parties in respect of the dispute, the subject of the proceedings, and (ii) if a mediation settlement has been reached on all, or some only of the matters concerning that dispute, a statement of the terms of the mediation settlement. However, this report will not provide details as to what transpired between the parties during the process.

Confidentiality and Disclosure In accordance with this Act, all communications, documentation, records and/or notes relating to the mediation are confidential and cannot be disclosed in subsequent court proceeding with some exceptions.

The Act for the first time now places a new statutory obligation on litigants to consider mediation as a means of resolving a dispute

Refusal to Engage If a party unreasonably refuses to engage in mediation, then the Act gives the court the power to impose a cost sanction on the delinquent party. This may result in that party having to incur the costs of the other side. The case law in Ireland on these matters is not as developed as in the UK, and it remains to be seen whether Irish courts will go as far as the UK courts have gone in terms of denying costs to or imposing costs on delinquent parties. P the Parchment 13

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DSBA Annual Book Awards Shortlist The DSBA is proud to announce the shortlist for the annual Law Book Awards which will take place at the DSBA mid-summer party in the Conrad Hotel on Friday 22nd June 2018 The judges have had much discussion and debate before finally distilling the nominated books to a shortlist for the Law Book Award and the Practical Law Book Award. The great feature of this event is the quality and quantity of Irish law books currently being published.

The shortlist is packed with significant publications which are of great assistance to practitioners and as a source of referral.

We now move to the social end of the event and the announcement of the winners. We would like to invite you to the DSBA mid-summer party on 22nd June 2018 where the prestigious awards will be announced and presented. Good luck to all our authors nominated and shortlisted. Full details of the winning books and authors will appear in our summer Parchment.

The DSBA would like to thank the sponsors of the annual Law Book Awards whose support is truly appreciated. Byrne Wallace are sponsors of the Irish Law Book of the Year Award; Peter Fitzpatrick Legal Cost Accountants are sponsors of the Practical Law Book of the Year and Law Society Skillnet are sponsors of the Outstanding Contribution to Legal Scholarship/ Lifetime Achievement Award.

Nominees for DSBA Law Book of the Year

Information and Communications Technology Law in Ireland Rónán Kennedy and Maria Helen Murphy, €60, 2017 Clarus Press

Non-Fatal Offences Against the Person: Law and Practice Éamonn O’Moore, €149 2017 Clarus Press

Disability Law and Policy: An Analysis of the UN Convention Editors: Charles O’Mahony and Gerard Quinn, €99, 2017 Clarus Press

Juries in Ireland: Laypersons and Law in the Long Nineteenth Century Niamh Howlin, €55 Four Courts Press, 2017

Contract Law 2nd Edition, Paul McDermott and James McDermott, 2017 €275, Bloomsbury Professional

Judicial Review, 3rd Edition Mark de Blacam, 2017 €265, Bloomsbury Professional

Employment Law, 2nd Edition Ailbhe Murphy, Maeve Regan, 2017 €255, Bloomsbury Professional

Redmond on Dismissal Law, 3rd Edition Desmond Ryan, November 2017, €225, Bloomsbury Professional

Medical Law in Ireland, 3rd Edition Simon Mills, Andrea Mulligan, 2017 €195, Bloomsbury Professional

Equity and the Law of Trusts in Ireland, 3rd edition Ronan Keane, 2017 €205, Bloomsbury Professional

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Spring 2018 dsba.ie

Annual DSBA Book Awards

Nominees for DSBA Practical Law Book of the Year

The Construction of Wills, Second Edition Dr Albert Keating €199, 2017 Clarus Press

Annual Licensing Court: The Essential 21st Century Guide Constance Cassidy, SC and Tim Bracken, €35, 2017 Clarus Press

Social and Economic Rights in Ireland Claire-Michelle Smyth, €75, 2017 Clarus Press

The Court of Appeal: A Guide Kieron Wood, €49, 2017 Clarus Press

Sponsors

The Land & Conveyancing Law Reform Acts: Annotations and Commentary, 2nd Edition JCW Wylie, 2017 €195, Bloomsbury Professional

Arthur Cox Employment Law Yearbook 2016 Arthur Cox Employment Law Group, 2017 €99, Bloomsbury Professional

Bloomsbury Professional’s Company Law Guide 2017 Tom Courtney, Una Curtis, 2017 €165, Bloomsbury Professional

Succession Act 1965 and Related legislation: A Commentary Brian Spierin, 2017 €225, Bloomsbury Professional

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A New Dawn for (Limited) Partnerships?

The partnership landscape has experienced seismic changes in the past two years. Limited partnership registrations have increased dramatically (over 700%), draft legislation has been announced to revitalise investment limited partnerships and (for legal practitioners) limited liability partnerships are also on the horizon. Conall Geraghty surveys the state of partnerships

A limited partnership has the advantage of being a tax transparent structure as well as a structure that is similar to private equity structures used in many other jurisdictions

What is a Limited Partnership?

A Heyday for Limited Partnerships?

Limited partnerships are a special class of partnership formed under the Limited Partnerships Act 1907. A limited partnership consists of: (1) one or more general partners; and (2) one or more limited partners, subject to an overall cap of 20 partners (ten partners where the business of the limited partnership is banking).

A general partner is responsible for managing the business and assets of the limited partnership and is liable for all of its debts and obligations. A limited partner is responsible only for contributing capital to the limited partnership and is not liable for the debts or obligations of the firm beyond the amount so contributed. A limited partner cannot take part in the management of the partnership business. If it does so, the limited partner will be liable for all debts and obligations of the limited partnership incurred while it takes part in the management as though it were a general partner.

A limited partnership does not have separate legal personality. As such, the assets of the limited partnership are typically held in the name of “the general partner acting in its capacity as general partner of the limited partnership”. The general partner also typically enters into contracts for and on behalf of the limited partnership on the same basis.

A limited partnership is not to be confused with: (1) an ordinary partnership formed under the Partnership Act 1890; (2) an investment limited partnership formed under the Investment Limited Partnerships Act 1994; or (3) a limited liability partnership (an LLP), a structure which is used by many UK law firms and introduced in Ireland under the Legal Services Regulation Act 2015.

In order for the limited partners to benefit from the limited liability noted above, the limited partnership must be registered with the Companies Registration Office (CRO). Any subsequent changes in the limited partnership must also be registered. While the filings made in respect of limited partnerships are publicly available documents, they are not accessible electronically or online.

Historically, only a handful of limited partnerships have been registered in Ireland each year. For example, only 27 limited partnerships were registered in 2011. The most common uses of such partnerships have been as structures for private equity and venture capital funds and as structures for holding passive investments in assets such as property.

However, an analysis of the registration data available from the CRO has revealed a dramatic increase in the number of limited partnerships registered in 2016 and 2017. In 2016 year-on-year registrations increased from 93 to 461, an increase of almost 500% while 2017 saw further strong growth.

Registrations increased from 461 to 676, a further increase of almost 150%. In fact, approximately as many limited partnerships were registered in 2016 and 2017 as are listed for all previous years combined.

It is likely that a combination of Brexit and a tightening of the favourable tax treatment for ‘Section 110 companies’ has encouraged many investors to explore alternative Irish structures. A limited partnership has the advantage of being a tax transparent structure as well as a structure that is similar to private equity structures used in many other jurisdictions.

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Spring 2018 dsba.ie Conall Geraghty is a senior associate with Mason Hayes & Curran and a member of the DSBA Commercial Law Committee

Partnership Law

New Limited Partner Disclosure Requirements This rapid growth in the number of limited partnership registrations has seen the CRO update its limited partnership forms (LP1 and LP2). The new forms introduce new disclosure requirements for limited partners joining limited partnerships.

The new rules apply to registrations made after 6 December 2017 where the prospective limited partner is a company but is not registered in the Irish register.

Such corporate limited partners must now provide the CRO with the following documents: (a) a certified copy (and where required authenticated copy) of the charter, statutes or memorandum and articles of the company, or other instrument constituting or defining the constitution of the company (in the original language); (b) a copy of the certificate of incorporation of the company; and (c) a copy of any certificates of incorporation of any name changes of the company.

If the documents above are not written in Irish or English, a certified translation is required. Previously, this disclosure requirement only applied to a non-Irish company which was to act as a general partner.

In addition, where the general partner is a non-EEA national who intends to come to Ireland to establish a business, the individual general partner must now submit evidence of the permission of the Minister for Justice and Equality to do so, for example, a GNIB card or a green card/green book.

The Dusk of Investment Limited Partnerships It is worth noting that the dramatic rise in the use of limited partnerships has not been matched by an equivalent rise in the use of investment limited partnerships (ILPs). ILPs are an alternative form of partnership formed under the Investment Limited Partnerships Act 1994, and which is authorised and regulated by the Central Bank of Ireland.

The ILP has not been the structure of choice for alternative investment funds over the past number of years. Figures published by the Central Bank of Ireland on the number of alternative investment funds active as at 31 January 2018 show that only eight were structured as ILPs. This contrasts sharply with the number of such funds structured as ICAVs (235) or designated investment companies (334).

As a result of this continued low uptake of the ILP structure among investors, last July, the Minister for Finance and Public Expenditure and Reform announced that the Government had approved the legal drafting of the Investment Limited Partnership (Amendment) Bill 2017. Although the heads of the bill have not yet been published, it is hoped that the bill will include features which improve the attractiveness of ILPs and maintain and enhance Ireland’s status as a leading European financial centre.

The Dawn of the Limited Liability Partnership The limited liability partnership (LLP) is perhaps best known as the legal structure under which many UK solicitors and other professional services firms operate.

What is less well known is that the UK LLP structure

is not restricted to such uses. UK LLPs, formed under the UK’s Limited Liability Partnerships Act 2000, can and do find alternative uses in the commercial sector as structures for commercial undertakings and joint ventures.

In Ireland, the (as yet uncommenced) provisions of Chapter 3 of Part 8 of the Legal Services Regulation Act 2015 provide for the introduction of LLPs in Ireland. The introduction of LLPs is of particular interest to the legal profession for obvious reasons.

However, unlike the general purpose LLPs available under UK law, Irish LLPs will only be available to a partnership of solicitors or a ‘legal partnership’ (a partnership including at least one barrister). The LLP structure will therefore be of little relevance to the commercial sector unless and until further stand-alone legislation is introduced to reflect the position in the UK.

Conclusion In light of these developments, these special types of partnerships look set to increase in number in the coming years. However, these partnerships have many features and pitfalls not encountered when dealing with a private company, including the risk of a limited partner assuming the liability status of a general partner if it engages in management and the feature that title to the assets of a limited partnership will vest in the name of the general partner. A clear understanding of the applicable rules and any contractual modifications is essential before dealing with any type of partnership. P

Limited Partnership Registrations (2011-2017) Year

Registrations

2011

27

2012

32

2013

43

2014

73

2015

93

2016

461

2017

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Intel’s Richard Devereux Richard Devereux qualified in 1985 and is now 30 years out of Ireland. He heads up the employment law division of international giant Intel. Yet he remains intrinsically connected to Ireland. Kevin O’Higgins caught up with him

I

have a confession to make!

The subject of this issue in A Day in the Life is a very close friend. A friendship honed over 35 years as colleagues in Arthur Cox before Richard embarked on an international career. This involved a stint in Freshfields (as they were then known), Matheson in London but then ultimately Intel where he heads up its employment law division from Munich where he lives with his Japanese wife, Asae and three teenage children, two of whom who attend boarding school in Ireland.

In all Richard has been out of Ireland for 30 years – back when Charlie Haughey was Taoiseach and Leo was beginning to walk. Yet Richard remains utterly in touch and connected with social and political life here; his friends would probably say, more so, than many of them. In fact, it is no exaggeration to say that Richard is more in touch and clued in to what’s going on here than many of us (myself included!). It is a testament to what friendship and companionship mean to him. Perhaps it is the determined mindset of the émigré zealot that drives his passion to keep in touch and remain close and relevant to his vast array of friends. But to those of us fortunate to have his friendship, out of sight is most certainly not out of mind. Richard remains very close and connected with so many people here.

And so, in a profession where one in five are now ‘in house’ we thought you might like a glimpse into the life of an in-house counsel, but one with a European, EMEA or global perspective. The Parchment reckoned his life narrative would be of interest and his life out of Ireland as in-house counsel with Intel, a global monolith with 107,000 employees including over 3,000 high level employees in Leixlip. The Parchment felt that this would be engaging and worthwhile for our readership, particularly

as Richard is from provincial Ireland (Wexford) where he did his apprenticeship before joining Arthur Cox and ultimately his current employer of 23 years, based in Munich where he lives.

Richard had no legal connections. His late father was a country vet and farmer. He asked his trusted solicitor, the late Edmund S Doyle, to take him on as an apprentice which he kindly did. “A gentleman and utterly honest and decent in his approach, the type of country town solicitor who kept people on the straight and narrow. His daughter Helen who took over the practice, is a friend to this day.”

His first job post qualification was as an assistant to the late Denis J Bergin, a partner in Arthur Cox. “He was very kind to me and put some great work my way. I worked on the administration of PMPA, (the behemoth insurer now long gone). I learned a lot and had fun times, made great legal friends. Many of the people I knew in Arthur Cox have sadly passed away or are retired or are elsewhere.

The firm has gone from strength to strength to strength since I left!”

In 1988 he decided to try his luck across the pond and headed for London aged 27. “I wanted to travel and my idea at the time, agreed with Denis Bergin was that I would give it a go for a year and then return to Cox’s.

I am still away. I joined the commercial department of Freshfields in London. It was quite an awakening, working for young aggressive lawyers not much older than me having swapped gentleman bosses for them.”

He left Freshfields for Matheson in its London office and then went in-house with a couple of UK-based businesses. He took a brave decision then to ditch his job and upskill, becoming a student again and do a full-time MBA course. “I called it my gap year. It was time out to

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Spring 2018 dsba.ie Kevin O’Higgins is principal of Kevin O’Higgins Solicitors, Blackrock. He is a former President of the DSBA and former Editor of the Parchment

think and it was an enjoyable if impecunious year.”

With the MBA under his arm, Richard then joined Intel UK as legal counsel. It was 1995. Intel is a semiconductor business; the well-known chip is the CPU in your PC. Intel does more than provide technology for PCs, it provides technical products for data centres, artificial intelligence, memory, new technologies and autonomous driving to name some of its businesses.

Richard joined the legal group as a generalist when total employees worldwide was less than 25,000 and the legal department in Europe was just five people.

Today with 107,000 employees worldwide the legal department in Europe numbers over 50 people.

“Lawyers are not going out of fashion. The legal department today in Europe is divided into three groups. Corporate; labour law and labour relations; and venture capital. I manage the labour law and labour relations team of seven people located across five countries. It is a varied workload – all labour and employment work; strategic labour relations work; advising and interfacing with employee representative

A Day in the Life of.....

bodies such as works councils, supervisory boards and other employee representative bodies.

His Intel career has been varied and multi-national. “My team advises across all 34 EMEA countries – every country from South Africa northwards to Sweden and Ireland eastwards to Israel. I have found Intel to be a fine and good employer. It adheres to the strictest of ethics with a robust code of conduct which has made the legal roles I have carried out very well respected within the corporation.”

In 24 years at Intel he has worked and lived for Intel in the UK, USA, Japan and Germany. “I have been based in Munich for 12 years having come here in 1998 for two years, then moved to Munich again in 2008 where my family and I have settled.” He describes Munich as being a familyfriendly city and a great central European location. “The jury is out on whether we will retire here full-time, only time will tell, Ireland is appealing too.”

As a testament to the education and training he got in Ireland he took on the HR role in the Japanese Intel plant.

No mean feat considering he had no background in HR and although married to his beautiful wife Asae, a Tokyo

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The Irish work hard and deliver while retaining a sense of humour and having fun along the way. I am grateful to Ireland for that learning, once you have it you don’t lose it native, he had scarcely a word of Japanese. “Yes, I had no HR manager experience and I survived! It involved managing an all-Japanese team of 15 people. Having a Japanese wife did not prepare me for that. Initially Intel Japan was a big culture change for me but her view when I asked for it was they were the same as the Irish, they liked a good night out!”

I ask about his typical day.

“My main client base is HR departments across the region and different business units; a lot of my daily interface is with my own team based in Germany, UK, Ireland, France and Israel who support those clients. Our corporate HQ is in California and the USA comes to life at 4pm each day. Technology is the work enabler and like all lawyers today, work is done through email, conference calls, Skype and video conferencing.”

He travels internationally once or twice a month.

Travel is dependent on business need, typically it is to other subsidiaries in the EMEA region. He travels to the USA about twice a year. “There is nothing glamorous about travel nowadays; check in/security etc, it is just part of the job. My favourite destination is Ireland where I travel once every quarter, I mix in some socialising.”

He has travelled to some unusual work destinations – Johannesburg for court (where he had an armed guard as the courthouse was in a difficult part of that city); Cairo to do a due diligence on an M&A where he made conference calls from beside the pyramids!

“When not travelling my day starts at 9am and finishes at 7pm. It’s a mixture of email, meetings through conference calls and video conference, face-to-face meetings, dealing with outside counsel firms, etc. I am quite capable of disappearing to the gym in the middle of the day if I can find a slot. Physical fitness gets more important the older we get and sitting at a desk over the years has not been kind to my back.”

I ask about his engagement with legal firms internationally and in Ireland where he uses Eversheds, Mason Hayes+Curran and McCann FitzGerald. “I have a panel of about 50 firms spread over 34 countries. In countries where Intel has a large presence we use what we call dual supply and we might have two or sometimes even three firms on our panel. I’ve built up the panel over the years and tend to go for either specialist employment law firms or full-service firms with good employment teams.

“The panel is very much relationship based, for example my outside counsel in Milan I engaged 17 years ago. He is on his second or third firm since I engaged him and our work has followed him through the various firms he has been a partner in, as his relationship with my team is a true partnership and he knows our business.”

His definition of a good external counsel is “someone who could arrive into one of our work cubes tomorrow and could sit and work with us, and seamlessly fit in.”

As to Richard’s view of the legal terrain here while he keeps a close eye, he says: “I am somewhat disconnected from the profession in Ireland and my interface with the profession is either through working with other Intel legal colleagues or through my work with outside counsel in different countries. I think the profession is a good one, it has been good to me. It teaches people how to think and articulate. It is a respected profession and one of the backbones of a good society and good corporate ethics. The legal profession wherever has much to be proud of. It has challenges of course, such as artificial intelligence - which is coming down the tracks, but there will always be a need for good lawyers.” He hopes that one of his children might follow him into the profession.

Richard remains grounded and never forgets where he came from. When I met him, he had just enjoyed a college reunion with seven old friends – all lawyers: Judge John Edwards of the Court of Appeal; David Kennedy, SC; Paul Flynn, a solicitor based in Kosovo; Paul Kingston, a solicitor in Tipperary; Gavin Campbell, a solicitor in Dublin and Peter Mulrine who studied law but now runs the very successful family business in Donegal. Richard reads the Irish Times and Deutsche Welle each day and the BBC World News will always be his nocturnal briefing. Good days are days when I miss the news or am too busy to look in. Expect the unexpected, but we have a Government finally in Germany after something like five months. Frau Merkel is like the Queen Mary liner, steady in rough seas.”

As to his conviviality and connection with Ireland he says: “I have kept my connections with Ireland in the 30 years I have been away. I have my mother and siblings living there. Intel brings me to Dublin. I have great college friends and former work friends in Ireland.

A barrister friend Brian O’ Shea and his wife Linda are in loco parentis for my two boarding school children here.

“Some of my best Irish connections are the Irish abroad, such as the Irish in Tokyo and Munich. And I have a great college friend, Bart Murphy in San Francisco who I regularly see as I pass through that city to go to Intel’s HQ. Having two children in school in Dublin is pleasing.

They are now saying things like ‘grand’ and ‘thanks a million’ having arrived in Dublin speaking English with a mixture of English and German accents.”

Richard has plenty of outside work interests. He is a devoted family man and a keen cyclist. He enjoys beer gardening in the summer, winter skiing in Italy (four hours’ drive from Munich). He is a member of the Irish business network in Germany, the US/German business network, an international rotary group, and can be found partaking of a sneaky pint of the black stuff in Killian’s Irish pub in Munich. As we conclude our chat he remarks pensively.

“One of the great Irish attributes is that we don’t take ourselves too seriously. Some nationalities do take themselves very seriously indeed. The Irish work hard and deliver while retaining a sense of humour and having fun along the way. I am grateful to Ireland for that learning, once you have it you don’t lose it.” P

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Tim Danaos - A DAY IN THE LIFE OF A (REPUTED) JUDGE

Tim Danaos recently had the unusual experience of understanding what it must be like to be a judge. Here he tells an insightful story

I

was attending a very pleasant function - a local bar association luncheon to mark the retirement of a Circuit Court judge. Naturally, on such an occasion, speculation is rife as to who the replacement for the retiring judge might be. I found myself in the unusual position of being one of those whose name was mentioned in that context. (It brought to mind the words of Oscar Wilde who said that the only thing worse than being talked about was not being talked about.)

Before, during and after the lunch, I was repeatedly “accosted” and in many varied and roundabout ways, enquiry was made of me as to whether or not I was to be the next Circuit Court judge for the circuit. [Even some sitting/continuing Circuit Court judges asked me the question.] Depending on who was asking the question, and the degree of intimacy of my prior relationship with them, my reply ranged from: “As father Jack would say – ‘That would be an ecumenical matter’ to ‘Absolutely not – sure I haven’t even applied’.”

After lunch, when the amount of alcohol consumed had increased, the frequency and intensity of enquiries on the subject also increased. While before the lunch (and before the consumption of alcohol) the enquiries were somewhat hesitant and tentative, and in some cases, (where I was not alone in the presence of my inquisitor), were expressed in the form of a hypothetical question, as if addressed to no-one in particular, but with the eyes of the inquisitor surreptitiously fixed upon me, inquiries after lunch were of a different nature.

Obviously emboldened by alcohol in some cases, some who undoubtedly felt that their degree of prior relationship with me was such that it would allow them to ask the question, (and no doubt inspired by the Star

Trek theme), decided to “boldly go where no man has gone before”. Some simply marched up to me and addressed the bald question to me. In some cases, the question was prefaced with a plea, indicating that the inquisitor obviously had no particular interest in the answer, and was only asking for the sake of another: “For F…’s sake, would you answer the question?” (Who F… is, I do not know, and why he or she is so troubled by the lack of an answer as to what my future entails still remains a mystery to me).

Others must have felt that their degree of prior relationship with me was of such a passing or a distant nature that they could not “boldly go where they had not gone before”. Some resorted to introducing themselves, in case I would not know who they were. In each case, I immediately responded, saying “Of course I know who you are”, even if that is only because they had now introduced themselves. (I knew of the existence of some of these people before but had never set eyes on them or spoken to them). However, even these relative strangers then proceeded to inform me, (as if it was a complete revelation previously unknown to me), that my name had been mentioned as a possible replacement for the retiring judge and then took great pains to assure me that as far as they were concerned, I was “an obvious choice”, and that I would “be great/fantastic” at the job and that they “hoped” that I would be appointed.

When this happened once or twice, it was amusing.

One could almost feel flattered. However, when this had happened more than ten times, and given that I was not consuming any alcohol, it actually became quite wearing and then became dispiriting. As more and more time passed, and those who approached me, were more and more influenced by alcohol, the comments became increasingly sycophantic, fawning and, to me, appeared evermore insincere.

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Spring 2018 dsba.ie Tim Danaos is still a practising solicitor and he never made it to the Bench. His real name has been withheld to protect his identity

It made me wonder what it must be like for a serving judge. It made me realise, in a way which I never quite realised before, that they must experience this fawning, if not insincere behaviour, on an almost daily basis – both in court and without. That made me question whether I had ever behaved in this fashion towards any judge. Thankfully, I was able to assure myself that I think I did not. Judges deserve respect by virtue of their position. Judges earn respect by virtue of how they act in their position as judges. However, they are human and deserve to be treated as such. They are undeserving of sycophancy.

A number of years ago, one of my lifelong friends was appointed to the High Court bench. (He was the first of a number of people whom I would regard as friends, who have been appointed to the bench at various levels). His wife rang me to tell me that he had been appointed and that he would give me a call later on that evening. When he rang me himself, he asked me what I thought about his appointment. My immediate response (and remember, he was a lifelong friend) was to say “I think it is terrible”. He of course, immediately asked “why would you say that?” to which I responded, “it was bad enough when I find Gardaí younger than me, but it is terrible to think that the High Court judges are going to be younger than me”, at which point, with immediate relief, he laughed out loud. I then proceeded to congratulate him heartily. When we meet and speak in private, it is as two lifelong friends, and I tell him things, “as it is”, which he appreciates because he knows it is heartfelt. In public, if in discussion with others who would not be in the same degree of relationship as he and I, I address him, respectfully, as “judge” which I consider to be appropriate in those circumstances.

Prior to the lunch, in court, tributes were paid to the retiring judge, and a further short tribute (hard earned and well-deserved) was paid at the lunch, prior to a presentation. The retiring judge, in a very short and very succinct but I think heartfelt response, thanked everyone for the courtesy and kindness which had been shown to him over many years. Later that evening, as I reflected on the day and my experience, it made me wonder. Undoubtedly, genuine courtesy and kindness had been shown to the judge over many years of his service, but equally he must have experienced sycophantic fawnings such as those I have described above, (even if my experiences were those of a reputed candidate for judicial office, and not a serving judge).

It made me realise being a judge, which as we all know is a genuinely difficult and challenging job at the best of times, must also be a lonely one. If a practitioner being elevated to the bench is a busy and gregarious one, then they must sacrifice a great deal.

They sacrifice the daily interaction with colleagues.

They sacrifice the cut and thrust of striving to do the best for a client. They sacrifice the daily collegiality of the working day. They sacrifice a huge degree of human interaction, which it struck me, cannot be replaced.

A sandwich and a cup of tea shared in one’s rooms at lunchtime could never be a substitute for the long and slow “boozy lunch” (very occasionally) enjoyed as a practitioner, when some triumph or favourable outcome to a case is celebrated (and the wisdom of the deciding judge recognised and toasted). It made me realise that I should occasionally, with no particular agenda in mind, offer to meet one of those former practitioner friends, for a slow and boozy, “Chatham House Rules” lunch. P

Real Life

Judges earn respect by virtue of how they act in their position as judges.

However, they are human and deserve to be treated as such

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Code of Practice on Longer Working Age Ciara O’Kennedy reports on the Workplace Relations Commission’s recently published code of practice setting out best practice in managing the engagement between employers and employees in the run-up to an employee’s retirement age

Background The code of practice has been published against the background of a changing legal demographic landscape, in which older workers are increasingly seeking to remain in employment past their contractual or normal retirement age.

Amendments introduced to employment equality legislation in 2015 provide that an employer must objectively justify both the setting of retirement ages and the offering of a fixed-term contract to a person over the compulsory retirement age for their employment.

Meanwhile, the age at which individuals are eligible to access the state pension (contributory) is increasing from 66 to 67 (from 2021) and 68 (from 2028), which means that many employees are facing a gap between their contractual retirement age, and the age at which they can access the state pension.

The code of practice has been published in light of recommendations made in the report of the Interdepartmental Working Group on Fuller Lives, and following consultation between the Workplace Relations Commission, IBEC and ICTU. The code sets out best practice in the following areas: • Utilising the skills and experience of older workers; • Objectively justifying retirement; • Standard retirement arrangements; • Requests to work longer.

Objective Justification The code sets out a range of factors which have been held by the courts to amount to objective justification for fixing compulsory retirement ages, including: • Inter-generational fairness (allowing younger

workers to progress); • Motivation and dynamism through the increased prospect of promotion; • Health and safety (generally in more safety critical occupations); • Creation of a balanced age structure in the workforce; • Personal and professional dignity (avoiding capability issues with older employees); and • Succession planning.

Best Practice: Requests to Remain in Employment Beyond Retirement Age The code goes on to set out best practice in relation to the retirement process, and in particular in relation to handling requests by older workers to remain in their employment.

The code provides that it is good practice for an employer to notify an employee in writing of the intention to retire an employee at least six to 12 months in advance of the contractual retirement date, to be followed up by a face-to-face meeting.

The codes sets out the factors to be considered both by employers and employees in considering requests to remain in employment beyond the contractual retirement age.

For an employee, this will include considerations such as their continued ability to perform their jobs, the possibility of flexible working arrangements or alternative roles, the duration of extension of employment being sought, and any pension implications.

For an employer, relevant considerations for the purposes of the code include whether there are objective grounds for refusing the request, and whether the request can be accommodated by retaining the

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Spring 2018 dsba.ie Ciara O’Kennedy is a partner at LK Shields. She is chairperson of the DSBA Employment Law Committee

employee on a fixed-term basis, or on the basis of more flexible working arrangements.

The code goes on to set out a recommended procedure in handling requests to remain in employment beyond the contractual retirement age, consisting of the following elements: • The employee should make the request in writing no less than three months before the intended retirement date; • This should be a followed up by a meeting between the employer and the employee; • The employer’s decision should be communicated to the employee as soon as practicable following the meeting; • If the employer decides to offer the employee a fixedterm contract following the contractual retirement age, the terms of that fixed-term contract should be made clear. The code provides that it is good practice to state that the decision is being made solely with reference to the employee concerned, and does not apply universally; • Where the employer refuses the request, the grounds for this refusal should be communicated in the meeting with the employee; • The employee should have recourse to an appeals mechanism in relation to any refusal – e.g. through the employer’s normal grievance procedure; • An employee should be afforded the opportunity to be accompanied by a work colleague or a union representative in any meeting to discuss a request to facilitate longer working hours, or any appeal.

Legal Effect of Code The order giving effect to the code of practice came into force on 20 December 2017.

Employment Law

The code of practice is admissible in evidence in proceedings before a court, the Labour Court, or the Workplace Relations Commission. The code of practice must be taken into account in any proceedings where a provision of the code appears to the court, body, or adjudication officer to be relevant.

A failure however to observe any provision of the code will not of itself give rise to any liability.

Practical Implications The issue of enforcing – or extending – contractual retirement ages has been a vexed one for employers in recent years.

The application of the ‘objective justification’ test, both for the fixing of retirement ages and the entry into fixed-term contracts following retirement age, is one that can be complex and difficult for employers to apply.

The identification in the code of objective grounds that may legitimately be relied upon, which is drawn from the case law of the Court of Justice of the EU, will be helpful for employers.

However, employers will still need to establish that the dismissal of an employee solely because they have reached the retirement age is both an appropriate and necessary means to achieve these legitimate aims if they are to avoid a claim for age discrimination under the Employment Equality Acts 1998 - 2015.

The creation of a framework within which discussions in the lead-up to retirement age can be held will be of benefit to both employees and employers. Employers should now consider reviewing their existing policies and procedures in light of the code. P

The code sets out the factors to be considered both by employers and employees in considering requests to remain in employment beyond the contractual retirement age

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Domestic Violence Legislation Overhaul David Stafford and Columb Fortune, BL review the Domestic Violence Bill which aims to modernise legalisation in this important area of the law. The authors state that whilst there are clear improvements envisaged in the bill, there are deficiencies which need to be addressed before the bill becomes law

T

he Domestic Violence Bill, 2017 is perhaps best described by reference to the first line of its long title – ‘an Act to consolidate the law on domestic violence’. The Domestic Violence Act, 1996 is the current operating legislation and has only been amended once, by way of the Domestic Violence (Amendment) Act, 2002.

The bill contains provisions that must be enacted to enable Ireland to ratify the Council of Europe Convention on preventing domestic violence, otherwise known as the Istanbul Convention which Ireland signed in November 2015. The new provisions of the bill allow for a person to apply for an ‘emergency barring order’ where the applicant has lived in an intimate and committed relationship with the respondent, but is not their spouse or civil partner.

It also provides for parents of a respondent to seek a similar order, where that respondent is over 18.

Practitioners will be aware that cases of domestic violence are very often some of the most difficult cases to work on. Director General of the Law Society, Ken Murphy recently noted that it is believed that one in five women in Ireland have suffered some form of abuse either by a current or former partner, and that there is an increasing number of men who are also reporting abuse. He says that the bill, as it currently stands, “does not go far enough in protecting the safety and rights of victims, particularly in cases where there are immediate risks to welfare”.

Section 2 of the bill, Interpretations, fails to set out

an explicit definition of domestic violence. In the Law Society of Ireland’s Recommendations for Amendments to the Domestic Violence Bill 2017 it is noted that such a definition is required to ensure that violence beyond physical violence is included to include inter alia sexual, psychological or economic violence. A definition of domestic violence that would encompass online forms of abuse including online stalking was also recommended.

Part 2 of the bill, Court Proceedings, consolidates the existing provisions of the 1996 Act and introduces several new procedural and substantive elements.

Section 5 – Safety Orders Safety orders remain pretty much the same except for the inclusion of subsection 5(2)(c) providing that a respondent against whom a safety order is made may be prohibited from “following or communicating (including by electronic means) with the applicant or the dependent person”.

The ‘non-communication’ terms in safety orders is a welcome provision. Safety orders may remain in place for up to five years.

Section 6 – Barring Orders Section 6 of the 2017 bill re-enacts section 3 of the Act of 1996 with the inclusion of the provision relating to following or communicating (electronically or otherwise) with the applicant. Barring orders may last for up to three years and may be extended.

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Spring 2018 dsba.ie David Stafford is an associate solicitor at Greg Ryan Solicitors. He is a committee member of the DSBA Family Law Committee. Columb Fortune, BL is a practising barrister. He works predominantly in family law and general litigation

Family Law

Section 7 – Interim Barring Orders Section 7 of the bill re-enacts section 4 of the 1996 Act which allows for the making of interim barring orders. An interim barring order may be made ex parte and will be granted where the court is of the view that there are reasonable grounds to believe that there is an immediate risk of significant harm to the applicant (or a dependent person) and that a protection order would not be sufficient. Interim barring orders will last for eight days and will expire when the hearing of the matter has been determined.

Section 8 – Emergency Barring Orders Section 8 of the bill creates the new order of ‘emergency barring order’. On application for an emergency barring order, where the court is of the view that there are reasonable grounds to believe that there is an immediate risk of significant harm to the applicant (or a dependent) it may make an order. The applicant may apply where they have lived in an intimate and committed relationship with the respondent but were not married or in a civil partnership with them. The applicant may apply for an emergency barring order when they have no legal or beneficial interest in the property where they reside, or, they have an interest but it is less than that of the respondent’s.

The same prohibitions that may be included in a safety, barring or interim barring order relating to watching or besetting, threatening violence or the use of violence and following or communicating may be included in emergency barring orders. Procedurally an emergency barring order may be made in the same way as an interim barring order; ex parte and will have effect for eight days from the date it was made.

Interestingly, when the emergency barring order expires (after eight days), no further emergency barring order shall be made until a period of one month has elapsed from the date of the expiry of the first emergency order unless the court is satisfied that there are exceptional circumstances. An emergency barring order may result in the respondent being barred from his or her place of business.

Concerns have been raised, most recently by the Law Society, that the procedure under section 8 of the bill for an emergency barring order may delay or deny access to the remedy sought, namely the requirement that an information or affidavit be sworn to ground the application.

The Law Society recommends that members of an Garda Siochána should be afforded the powers to apply on behalf of the applicant, and further that the eightday expiration.

that person is under 18 or with the leave of the court.

The evidence may be video or audio recorded.

Appearing at court in the context of domestic violence can be traumatic (be it before, during or after proceedings) a traumatic one. It is therefore a welcome development that victims may not have to face their abuser in proceedings under this Act.

Section 22 – Right to be Accompanied

Section 9 of the bill re-enacts section 5 of the 1996 Act and includes the new ‘non-communication’ provision.

Section 22 creates a new right for applicants to be accompanied in court in certain circumstances. The accompanying person may be a ‘support worker’ which is defined in the bill.

Very often, as practitioners will be aware, applicants for relief under the existing domestic violence regime will be vulnerable, nervous or in fear so section 22 may assist victims insofar as they feel that the support worker will be present with them in court, where they previously would not have been.

Section 21 – TV Link Evidence

Section 23 – Views of the Child

Section 21 of the bill introduces a welcome provision that allows for any person (other than the respondent) who is seeking a safety, protection, interim/emergency or barring order to give evidence via live TV link where

The Legislature saw fit to include a provision which allows for the court to seek the views of the child where the order is being sought insofar as the order relates to the child. It is an overdue reform and a

Section 9 – Protection Orders

The Law Society recommends that members of an Garda Siochána should be afforded the powers to apply on behalf of the applicant

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Much in the way that a respondent to a childcare matter should not be penalised for the defending of the case, it has long been suggested that an applicant in domestic violence proceedings should not be required to pay for legal aid where they are a victim of abuse

recurring theme in recent family legislation, that children are being afforded some prominence in legislation which may affect them.

It also provides for an expert to be appointed to assist the court in that regard.

This provision will apply to any proceedings under the bill with the exception of applications for interim barring orders, emergency barring orders or protection orders.

Section 25 – Engagement with Services Section 25 provides that, when granting an order under sections 5 through 8, the court may direct the respondent to engage with a programme or service to address issues relating to their behaviour. The court may take account of any engagement when hearing an application for a variation of an order, or an appeal of an order and will take account of the applicant’s views on such engagement.

Section 25(1) lists some of the services that may be recommended to the respondent: (a) a programme for perpetrators of domestic violence, (b) an addiction service, (c) a counselling or psychotherapy service, or (d) a financial planning service.

Naturally, this is a welcome development for practitioners as it places a rehabilitative aspect into the proceedings.

Section 35 – Forced Marriage Section 35 of the bill creates the new offence of forced marriage. Under section 35, a person will commit an offence where they engage in ‘relevant conduct’ in causing another person to enter into a marriage ceremony.

The creation of this new offence of forced marriage is a welcome one, albeit one which is unlikely to appear on practitioners’ desks regularly.

Legal Aid For an applicant to be granted a legal aid certificate they must have a disposable income of not more than €18,000 and no capital resources of over €100,000, excluding the value of the family home. Applicants on social welfare will, almost invariably, qualify for legal aid. A common misconception that arises amongst applicants for civil legal aid is that, like criminal legal aid, it is free. Practitioners will be aware that the contribution required for a legal aid certificate will be up to €130. The Legal Aid Board has a discretion to waive all or part of the contribution on a case-by-case basis where not doing so would cause the applicant ‘undue hardship’.

Much in the way that a respondent to a childcare matter should not be penalised for the defending of the case, it has long been suggested that an applicant in domestic violence proceedings should not be required to pay for legal aid where they are a victim of abuse.

In March 2017 the Committee on the Elimination of Discrimination against Women noted that long waiting lists, restrictive means testing and the requirement to pay contributions where relief was being sought under

the domestic violence legislation was denying low income women access to justice (CEDAW/C/IRL/ CO/6-7). The bill is silent as to legal aid.

Extension of Protection It has been noted by various commentators including the Law Society of Ireland, that the bill does not go far enough in that it fails to address situations where a couple are in an intimate and committed relationship but are not cohabiting. The Law Society has suggested that the bill should be amended to include those who are ‘dating’ under the age of 18 who are at risk of violence or abuse and who would wish to seek the protection of the court in their own right.

Guidance to the Court and Practitioners It is a notable feature of the bill that it remains silent as to guidelines or protocols for the judiciary in granting orders and the factors that the court should or may have regard to. The Law Society has recommended that statutory guidance be given to the court and has very helpfully set out a sample list of criteria in its paper. Here are three examples: - Any history of violence by the respondent against the applicant or any dependent, - Any act, pattern or repetition of violence by the respondent against the applicant or dependent, - Any pattern of coercive and controlling behaviour directed at the applicant by the respondent.

No indication has been given as to whether any amendments are to be brought forward to incorporate the aforementioned guidelines but it is suggested that an amendment of this nature would greatly assist the judiciary.

Conclusion The Domestic Violence Bill, 2017 is a welcome and necessary overhaul of the current system and legislation in place. The enactment of the bill will bring Ireland closer to ratification of the Istanbul Convention. While there are clear improvements envisaged in the bill, there are deficiencies and these deficiencies are not minor. The bill should be amended to include non-cohabiting relationships so that no class of person is afforded less protection than another, merely because they do not cohabit with their partner. The provisions relating to emergency barring orders are indeed welcome, however the practicalities of applying for an emergency order may prohibit or impede an applicant for the reasons discussed. It would be a positive amendment to give members of an Garda Siochána the power to apply for such orders where the applicant is unable to do so in person. Finally, and arguably most importantly, the bill does not address the concerns relating to the financial contribution required where an applicant is seeking a legal aid certificate. Whether by way of amendment to this bill or the Civil Legal Aid Act,1995 by regulation, it is an unjustified, restrictive and antiquated requirement and should be abolished without further delay. P

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SOME OF THE SERVICES WHICH ORCA PRINT PROVIDES ONSITE ARE: · A Commissioner for Oaths for swearing documents · Stamp duty fees on Court documents · Comb binding and heat binding · Quick turnaround for copying briefs · Books of Pleadings/Authorities (tabulation, pagination etc.) · Photocopying and printing · Scanning and faxing · Consultation room · Computer access Orders for Books in excess of 10,000 pages would require at least one days’ notice.

Tel: 01 8044509. Email: info@orcaprint.ie 3 Inns Quay, Chancery Place, Dublin 7.

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To arrange cover or discuss any of the above: Email: contingencyservices@aviva.com or phone Niall Sheridan on 01 898 7743

Anne Stephenson is Principal of Stephenson Solicitors

Probate

Are you Flaithúlach or Improvident?

Probate specialist Anne Stephenson sets out the evidence required to be considered ‘impoverished’ in Discretionary Trust Tax matters

Until recently, the difference between incapable and improvident and what Revenue would seek as vouching documentation was particularly unclear

I

t all depends on how you view it – it’s like a declining verb “I am generous, you are flaithúlach, but he is improvident”.

In relation to Discretionary Trust Tax, the criteria as to which behaviour indicates what has always been slippery and one, which generally the Revenue would not give “pre-clearance” on.

However difficult it has been occasionally to provide evidence regarding incapacity it has always been unclear, which did sometimes work to the client’s advantage, as to what was improvidence.

To be incapable of “managing own affairs because of improvidence” is not the same as simply being incapable of “managing own affairs”, and clearly it will not always be possible, in relation to “improvidence” to provide medical or legal evidence regarding same.

Given the rate of Discretionary Trust Tax and the potential exemption; “17.—(1) Section 15 shall not apply in relation to a discretionary trust which is shown to the satisfaction of the Commissioners to have been created exclusively — ... (ii) for the reason that such individual, or all such individuals, is or are, because of age or improvidence, or of physical, mental or legal incapacity, incapable of ...” it is vital when advising, to be able to at least know Revenue’s current thinking as we cannot predict the future.

Until recently, the difference between incapable and improvident and what Revenue would seek as vouching documentation was particularly unclear.

The Probate Administration and Taxation Committee of the Law Society and Aileen Keogan, in particular have done sterling work on submissions to Revenue on this issue and late this year came some assistance with eBrief no. 92/2017 -Trust Practitioners Revenue Discretionary Trust Tax exemption for trusts established for the benefit of improvident individuals. It clarifies the nature of the incapacity necessary to qualify for this exemption and what type of evidence that Revenue may require to support such a claim.

Where such evidence cannot be provided it is necessary to provide other evidence to establish that the conditions for the relief are satisfied.

What Evidence?

Documentary evidence which shows a pattern of improvident behaviour and/or of action/s taken to protect the individual or to deal with the consequences of the improvident behaviour would be necessary.

Such evidence may include for example:

• a declaration made on the establishment of the trust confirming why the trust was established; perhaps even in the recitals, for example: Where the settlor is the improvident person in an Intervivos trust “This Trust is established due to the improvidence arising from the substance addiction of the settler.”

Where the settlor is the improvident person “This Trust is established due to the improvidence arising from the substance addiction of the x.”

• inability of the individual to live independently as evidenced by repeated default on rent payments or utility bills; • past financial supports required in relation to daily living expenses; • discharge of improvident individual’s debts by other persons; • protective financial arrangements already in place such as: 1. the use of cash upfront utility providers; 2. transfer of expenses such as utility bills into other persons’ names; 3. payment for household essentials by way of prepaid store credit and/or payment of online delivery subject to approval of another person; 4. the free use of the family home or other family property; 5. provision of an allowance for living expenses to the improvident person by family members on a regular, frequent and short-term basis – i.e. daily or weekly; • inability of the individual to obtain credit from financial institutions; • supporting affidavits from the settlor, other family members and associates attesting to improvident behaviour.

Along with such documentary evidence, it would be useful to include an affidavit from a settlor/testator setting out the reason(s) and background for the establishment of a trust or indeed set out why in the recitals. See above.

Where the settlor is deceased, there may be other parties, such as family members, solicitors and accountants who may be in a position to provide relevant information.

Obviously, all of the above, is more relevant in the case of proposed trusts, be they inter vivos or will trusts but it may also be possible to obtain now in the case of existing Intervivos trusts or those trusts in wills in the wills’ safe. P

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MEDIATION BILL UPDATE

DUBLIN SOLICITORS ’ BAR ASSOCIATIO N MAGAZINE | SPRING 2018 | ISSUE 75

ERASING ELECTION OUTCOMES Can election results really be challenged?

ROBERT RYAN CROSS-EXAMINED DSBA SUBMISSION ON THE ADMINISTRATION OF JUSTICE

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Flor McCarthy is managing partner of McCarthy & Co Solicitors and is 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

Who is Your Real Competition?

Flor McCarthy thinks outside the box about competitors and advises that if you look after your clients well enough, you won’t have to worry about your competition

They are comparing their experience with you to all of the other experiences they are having in their daily lives

I

t’s likely you’re keenly aware of your competition.

You feel them breathing down your neck, particularly in certain practice areas.

The legal profession gets a lot of flak for perceived anti-competitive aspects of how the profession is structured, but as individual practitioners we feel the brunt of pretty intense competition constantly.

Or certainly, if we allow ourselves to be perceived in the marketplace as just another provider of commoditised services, we are likely to be very vulnerable to such competition.

And so we probably think of our competition as the other lawyers. The guys and girls who’ll do the work if we don’t, the alternative providers of our services.

When we think of ourselves and our businesses in this way, as interchangeable alternatives for others, it frames how we position ourselves and influences so many aspects of how we do business.

Think of pricing, most businesses just look at what everyone else in the marketplace is doing and then pick a price position that is less than the most expensive and more than the cheapest and hope for the best. No real thought is given to the value behind that price, how that value might be demonstrated and the price justified accordingly one way or the other.

But when we do this, we are flat out wrong. On so many levels.

Your competition is not the other lawyers.

Your real competition is every other aspect of your client’s life.

Think about that.

Your client is not split testing their lawyer. They are not doing one half of their transaction with you and the other half with the guy across the street and seeing who’s best.

With rare exception, they have probably not interacted with a lawyer for years and once this matter concludes, will not do so for many more years to come.

You are the totality of their experience of lawyers.

And so, in your client’s life, they are comparing their experience with you to all of the other experiences they are having in their daily lives.

Think of what someone might do in a day: go for coffee, go to the hairdressers, go to the dentist, get the car serviced, call to the solicitor, pick up the dry cleaning, wait for the broadband guy to call, wait for a home shopping delivery, grab some lunch, go shopping, go for a pint, go out for dinner.

You are just one of the many service experiences that they will have in their daily lives and, one way or another, they are comparing their experience with you to all of the others.

And they will think to themselves: “I always look forward to going here” or “I love how I feel when I come out of here” or not, as the case may be.

In fact, when you think about the levels of service that we get in society generally, you realise how disappointing it usually tends to be.

When was the last time you recommended a dry cleaner to anybody because you just loved dealing with them? If you know a dry cleaner where they haven’t actually shredded your clothes more than once, you will probably grudgingly pass on their details if asked to suggest somewhere, but you certainly won’t be raving about them.

But let’s not be unfair and single out dry cleaners here. When was the last time you had a ‘wow’ customer service experience from anyone? It doesn’t happen very often, and if it isn’t happening in your life, you can be pretty sure that it is not happening in the lives of your customers either.

Do you see the opportunity here?

It is vast.

So, when you think about how you run your business and the experience that you give your

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Spring 2018 dsba.ie

Practice Management

customers, forget about who you think your competition is.

Lawyers for the most part, provide appalling customer service and a dreadful customer experience. To paraphrase Woody Allen, not only is there not a God, but try getting a lawyer to return your calls. If you are benchmarking yourself against your peers in this area, you’re in serious trouble.

Remember who your competition really is, the rest of the service universe that your client’s world revolves within. And think about your own experience as a consumer. Consciously consider the service levels that you experience as you go about your day.

Which make you feel good?

Which make you feel bad?

Most will be unremarkable, another sizeable majority poor and a tiny, exceptional minority will be amazing.

But the ones that are truly amazing, are so exceptional, and make you feel so good, that you can’t stop talking about them to others. At least I can’t whenever it happens to me. Your customers are no different.

When you think of it in this way, you can see that it is very easy to move your business to the sunlit uplands of amazing customer experience where ideas like competition from other similar service providers are frankly, irrelevant.

Rethink your relationship with the competition and move your business into a category of one – that means one where your clients can’t imagine what life would be like without you.

Do this properly and you will have no competition. P the Parchment 33

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Spring 2018 dsba.ie Killian Morris is a partner with AMOSS Solicitors

Cross Examination

Banking on the Profession Robert Ryan took over as President of the DSBA last October and now leads the capital’s 3,000 strong solicitor association. Killian Morris meets the principal of Doherty Ryan and Associates who is facing the many challenges that lie ahead for the profession

I

t was 10th of April 1992 and a young Irish born solicitor had just left a closing meeting at the large London law firm where he worked. It was just after 9pm and he had just completed a long day at the office. On his way to get the bus home, he walked past a large white van, thinking nothing of it. Some 15 minutes later, a huge bomb contained in the white van, exploded outside the Baltic Exchange Building at St Mary’s Axe, killing three and causing huge damage to the surrounding area. The conference room where the closing meeting had taken place had all its windows smashed by the blast; those remaining in the office were lucky to be alive.

That Irish solicitor and now DSBA President, has certainly lived to tell the tale. At the time of the bomb, Robert Ryan had been working in London for Norton

It is clear that Robert is a man who ‘cuts to the chase’ and is always ready to give the difficult advice and direction which is so often needed

Rose Solicitors. He worked as a banking and finance lawyer specialising in cross-border financing transactions and big-ticket lending deals. When I asked him whether being an Irishman in London in those days was difficult, Robert says that “the firm (Norton Rose), was very international in its outlook and I never encountered any difficulty being Irish there”.

That said he does recall one occasion where a partner in the firm did chide him about “your boys being up to their old tricks” after one particular terrorist incident. Partner or not, Robert wasn’t long in setting the man straight!

Setting people straight is a running theme in Robert Ryan’s career; both during his time as DSBA President and also in his practice.

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He points to the lunacy of acceding to the banks’ request to do away with three-way closings and substitute undertakings; it has embroiled the profession in disasters which it should never have been in and has given solicitors a bad reputation He recalls one situation in particular, during his time in London, when his borrower client was reliant on a large German Bank establishing a branch within the UK, in order to complete a loan transaction. Arriving at the closing with his client ready to draw down funds and go on to complete a multi-million pound property transaction, it became quickly apparent that the German lender had not lived up to its side of the bargain. Notwithstanding this, the bank was still pressurising Robert’s client into completing the deal (to his considerable disadvantage but not the bank’s). Not to be intimidated by the situation as many others would, Robert was in a position to advise his client not to do the deal and walk away from the meeting empty handed. When I asked whether this “big call” signalled the end of his client relationship, he happily recalls that following the meeting, the German bank duly established the branch in London and the monies were lent to his client some months later.

When arriving in London in 1988 – Robert had left an Ireland in recession, where legal work was becoming scarce – for a London economy where business was booming. Robert had been apprenticed and qualified at Arthur Cox in Dublin in the early 1980s and remembers his time there with fondness. “For the first six months all you did was introductory training, such as Bord na Móna land work” he mentions when talking about the type of work he did at the time.

While he assures me this role never involved putting the wellies on, it did mean having to “know your Land Registry rules inside out”, a great training for any aspiring solicitor. He quickly became involved in the corporate and commercial side of the practice under the tutelage of James O’ Dwyer, one of the foremost commercial lawyers in Ireland at the time. He remembers working on some very significant commercial transactions during this time and in particular, his involvement in key moments of the winding up of Irish Shipping Limited (the Stateowned deep-sea shipping company, formed during World War II for the purpose of supplying the country's import needs).

Following the death of accountant Russell Murphy in 1984, who it transpired had dissipated substantial sums of money belonging to his clients including Gay Byrne and Hugh Leonard, Laurence Crowley was appointed administrator of Murphy’s insolvent estate. This was new territory where nobody really knew how to deal with an insolvent estate, given that the rules of insolvency and administration could only be found in archaic and difficult to understand 19th century legislation. Of course, in Robert Ryan, Crowley had the right man for the job; and he set about preparing a codified summary of the rules which could be followed in that case, and subsequently, until the enactment of the Bankruptcy Act in 1988.

Robert is quick to point out that Arthur Cox in the 1980s, notwithstanding the pressure that comes with being a top law firm, “was a very friendly place where everybody knew everyone else”. When he moved to London and Norton Rose, he found himself working in a firm of 400 people, compared to 70 or so at Arthur Cox. While this took getting used to, Robert thrived in the larger environment. At the time he quickly formed the view that the quality of lawyer found within the larger UK firm was no better than those he had worked with here in Ireland. The only thing he did notice was that firms of the type and scale of Norton Rose were simply “better organised” and as a result, more efficient in carrying out large scale transactions. He says it is great to see that large Irish law firms have long since caught up with, and are every bit as organised as, their London counterparts.

After a five year stint with Norton Rose, Robert was offered an opportunity to be the senior associate at the firm’s banking practice in Hong Kong, and was faced with a difficult decision. Along with his wife Josephine, they decided it was best to come back to Ireland, and Robert joined Beauchamps first as an associate and then as partner by the end of the first year. “I did banking but also corporate work, I knew there wasn't going to be enough work with just banking,” he says.

How times have changed!

Fast forward a number of years and Robert went about establishing his own boutique corporate and banking law firm.

This coincided with the boom times here in Ireland and, following a period in practice by himself, he joined forces with Randal Doherty to form Doherty Ryan & Associates. The merged firm did well during the good years, but he is most proud that, in the subsequent bad times, the firm did not lay off any staff.

While it is beyond doubt that Robert has had a very successful career as a commercial lawyer, it quickly becomes apparent how passionate he is about the regulation of the solicitors’ profession.

Robert believes that the representation of the solicitors’ profession has, in many instances, been compromised by selfregulation. He bemoans the fact that, as a result of the difficulties encountered in the past, there is an over emphasis on the protection of the consumer over everything else. While the protection of the consumer is undoubtedly important, Robert consistently calls for “equal balance of focus on the needs and requirements of solicitors”, consistent with the ‘better balance’ principle underpinning the Legal Services Regulation Act 2015.

When we discuss this further, Robert moves on to what he feels was the greatest mistake made by the solicitors’ profession since he qualified. He points to the “lunacy of acceding to the banks’ request to do away with three-way closings and substitute undertakings; it has embroiled the profession in disasters which it should never have been in and has given solicitors a bad reputation.

When I qualified, three-way closings were the norm and this meant there were up to three pairs of eyes looking at every transaction – removing risks of fraud on the undertakings side and the risks of negligence by virtue of things being done poorly”.

While Robert accepts that this has been partially pared back with the more recent Commercial Undertakings Regulations, he says that it is “a little bit like shutting the stable door after the horse has bolted”. It was, he says, the most significant example of over focus on the needs of the consumer and the banks to the significant detriment of the solicitors’ profession.

Robert also points to the Law Society’s position of encouraging mergers while, at the same time, having successor firm regulations which mean that if you “sniff at another firm, you are stuck with all their liabilities known and unknown”. He feels that the advent of limited liability structures for legal practices may alleviate this issue somewhat, but the whole area requires more joined up thinking.

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Cross Examination

Photography: Bryan Meade

On the positive side, Robert is very firm in his view that there is something special about the collegiality amongst Irish solicitors and believes that this is still the profession’s biggest strength. He sincerely hopes that the younger members of the profession equally value collegiality and courtesy in practice. When we break up following the interview, he is off to a DSBA southside solicitors event at Harold’s Cross which is typical of the events which Robert attends and promotes throughout the year.

He is also delighted to bring 120 colleagues to the DSBA annual conference in Venice, Italy in the autumn. The conference has been in the planning for over 12 months already and will certainly be a highlight of his year in charge of the country’s largest bar association.

Given his role and clear interest in the topic, Robert has been centrally involved in the various submissions made on behalf of the DSBA to Government and subsequently, to the Legal Services Regulatory Authority.

Robert’s main focus here has been lobbying to bring about a situation where solicitors can practise within modern business structures. Robert points to the fact that the ability of solicitors to practise in limited liability partnerships is provided for in the 2015 Act but disappointingly, remains yet to be implemented (a matter the DSBA continues to lobby on). He acknowledges that at least, the work on the implementation of LLPs is ongoing and a priority.

Training and education takes up an entire section of the 2015 Act and is a subject on which Robert has plenty to say.

He remembers with fondness the training that he received in Blackhall Place and with Arthur Cox, but he considers that the profession is not being served as well as it should. He is particularly aggrieved that basic drafting skills are not given the priority that they deserve on the Law Society’s professional practice courses – “80% of my time as a solicitor is spent on drafting or amending documents, so it is extraordinary to think that so little time is spent on teaching such a fundamental skill,” he says.

We discuss whether the implementation of the 2015 Act may result in competition within the legal education sphere (insofar as it relates to solicitors) which develops a twoor three-tier system with trainees working in larger firms preferring a particular type of education which is focused on particular practice areas, with others preferring the traditional model of legal education, focusing on a broader skills base. Robert believes this will be a contentious issue and notes that a consultation by the Legal Services

Robert Ryan at a glance

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Regulatory Authority is due to commence shortly on the subject.

When not in his office, Robert is a keen sportsman. He tells me he used to play rugby for UCD, Old Belvedere and the English Law Society when in England, before age and injury took their toll. Back in his day Robert was one of the top junior tennis players in Leinster and went on to become President and now trustee of the prestigious Donnybrook Lawn Tennis Club. He enjoys hitting the slopes as often as he can, and can be found careering down a mountain somewhere in either Austria or North America in any given year. Robert also enjoys the occasional horse racing involvement, with a modicum of success – but not yet anywhere near the achievement of his maternal grandfather in winning the Irish Derby in 1939!

When I point out that his involvement as a volunteer in tennis and legal politics would suggest that he will need to find some other committee or organisation to get his teeth

into, he is non-committal – his focus for now, on finishing out his year, as DSBA President, as best he can.

In response to my question about his legal background Robert once again mentions his maternal grandfather, PJ Ruttledge, who was also a solicitor. During the War of Independence, Ruttledge helped to establish the ‘Dáil Courts’ in the West of Ireland and subsequently became Minister for Justice from 1933 to 1939; so was in Cabinet at the time of the enactment of the 1937 Constitution. While Robert never met his grandfather who died in the 1950s, his legacy has had a lasting impact on Robert, both as a solicitor and now as a leader of the profession.

Ruttledge would undoubtedly be very proud of his grandson’s achievements, particularly his role in the modernisation of the Irish solicitors’ profession, a profession which continues to operate within that same legal system he helped to establish all those years ago. P the Parchment 37

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Greg Ryan is principal of Greg Ryan Solicitors and Vice President of the DSBA

News

General Data Protection Regulation (GDPR) – Do Law Firms need to appoint a Data Protection Officer?

According to Greg Ryan some law firms will have to work harder than others in the implementation of the GDPR this coming May

P

oints that need to be followed in deciding whether or not you must appoint a Data Protection Officer (DPO) are set out in Article 37(1) of the GDPR. Designation of a DPO is mandatory

Article 37(2) permits a group of firms to appoint a single DPO, provided they are easily accessible from each firm’s offices

where; a) Processing is carried out by a public authority or body except for courts acting in their judicial capacity; b) The core activities of the controller or processor consist of processing operations which by virtue of their nature, their scope and/or their purpose, require regular and systematic monitoring of data subjects on a large scale; or c) The core activities of the controller or the processor consist of processing on a large scale the special categories of data or personal data relating to criminal convictions and offences.

Firms will need to interpret the key terms including “core activities”, “regular and systematic”, and “large scale” to decide whether the mandatory designation is required.

Interestingly, the working party on Article 29 considers that the notion of “public authority or body” should be determined under national law and suggests that the concept is not limited to national or regional local authorities, but under the applicable national laws also to include a range of other bodies who are simply governed by public law, which would include certain solicitors’ firms.

Special categories of data are set out in Article 9 of GDPR and consist of personal data revealing

racial or ethnic origin; political opinions; religious or philosophical beliefs; trade union membership; the processing of genetic data; biometric data for the purpose of uniquely identifying a natural person; and data concerning health or data concerning a natural person’s sex life or sexual orientation. Genetic data and biometric data are themselves defined in Articles 4 (13) and 4 (14) respectively.

Most likely, few law firms would be systematically monitoring data subjects on a large scale. Some however may be processing special categories such as in relation to criminal convictions and offences conducted on a large scale, they may fall within the GDPR. This is particularly the case where practitioners may be processing data in Ireland about employees or clients in offices in other EU jurisdictions.

The Article 29 Working Party encouraged the designation of the DPO on a voluntary basis, commenting that it would be good practice to appoint a DPO. Where they designate a DPO on a voluntary basis, the requirements under Articles 37 to 39 of the GDPR will apply to their designation position and tasks, as if the designation had been mandatory.

If you take the leap and appoint a DPO, Article 37 (5) states that the DPO shall be designated on the basis of; a) professional qualities; b) expert knowledge of the data protection law and practices; c) The ability to fulfill the tasks as set out in Article 39.

In addition, Article 37(2) permits a group of firms to appoint a single DPO, provided they are easily accessible from each firm’s offices. The DPO, apart from having to fulfill the statutory obligations as above, should have sufficient knowledge and proximity to the firm’s management processes and access to the principal of the practice in order to be properly involved in the timely dealing of any issues that might arise.

Finally, the Article 29 Working Party recognises the possibility that over time a standard practice might develop in identifying in more specific terms what constitutes “large scale” in respect of certain types of processing, and it plans to share and publicise examples of the relevant thresholds, and therefore practices should keep their decision as to whether to appoint a DPO under review. P

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How will the Mediation Act 2017 Change the Practise of Family Law? Keith Walsh, past chair of the DSBA Family Law Committee examines how the new Mediation Act 2017, which commenced on the 1st January 2018, will change the practise of family law

T

he Mediation Act 2017 contains a number of changes which are immediately relevant to family law practice and procedure especially in the Circuit Family Court.

In this article I will first examine the provisions of the Mediation Act which only apply to family law matters before looking at other provisions which are relevant to family law.

Provisions of the Mediation Act which Relate Specifically to Family Law The Mediation Act (commenced 1st January 2018) and the new Rules of Court (commenced 22nd January 2018) are designed to ensure that those intending to issue family law proceedings pursuant to the Judicial Separation and Family Law Reform Act 1989, the Family Law (Divorce) Act, 1996 and the Guardianship of Infants Act, 1964 are aware of mediation as an alternative to issuing court proceedings.

Solicitors in family law cases are now statutorily obliged to give an increased amount of information about mediation to clients before issuing proceedings in these family law cases. The courts require greater proof of compliance with these duties regarding providing information about mediation, reconciliation and legal separation by way of agreement as an alternative to judicial separation (and in divorce cases judicial separation as an alternative to divorce) following the introduction of the new Rules

of Court in relation to mediation.

The new District, Circuit and High Court Rules became effective as and from 22nd January 2018.

S.I. No. 9/2018 - District Court (Mediation) Rules 2018 S.I. No. 11/2018 - Circuit Court Rules (Mediation) 2018 S.I. No. 12/2018 - Circuit Court Rules (Family Law: Mediation) 2018 S.I. No. 13/2018 - Rules of the Superior Courts (Mediation) 2018 In addition to the solicitors’ duties pursuant to section 5 and 6 of the Family Law Reform Act 1989 (re: judicial separation) and sections 6 and 7 of the Family Law (Divorce) Act 1996, the Mediation Act obliges solicitors to provide information to clients relating to: a. the confidentiality of mediation agreements and b. their enforceability pursuant to section 10 and 11 of the Mediation Act.

Warning: Increased Levels of Compliance Required in Family Law Cases The level of proof of compliance by solicitors is increased from a solicitor’s certificate to a statutory declaration. Solicitors must now make a statutory declaration (rather than certify) that they have complied with sections 5 and 6 of the Family Law Reform Act 1989 or sections 6 and 7 of the Family

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Spring 2018 dsba.ie Keith Walsh is a Dublin solicitor practising primarily in the area of family law and family disputes, chairman of the Child and Family Law Committee of the Law Society and is a qualified mediator and collaborative lawyer

Law (Divorce) Act 1996 (and section 20 and 21 of the Guardianship of Infants Act).This a much more onerous obligation for solicitors and it is likely to lead to an extremely high level of compliance. Section 6 of the Statutory Declarations Act 1938 states that every person who makes a statutory declaration which to his knowledge is false or misleading in any material respect, shall be guilty of an offence which is punishable by a fine and/or imprisonment.

The new Circuit and High Court rules contain new Family Law Statutory Declaration forms and these statutory declarations have replaced the old Section 5/6/7 Certificates for Judicial Separation and Divorce for proceedings issued as and from 22nd January 2018. Family lawyers have replaced their section 5,6,7 certificates with the new statutory declarations as set out in the rules of court.

Other Provisions of the Act which are Relevant to Family Lawyers Other elements of the Mediation Act which will impact on family lawyers but which are not exclusive to the area of family law, include: 1. An increased role for the courts in directing mediation either on application of one of the parties or on its own initiative. Either party may apply by notice of motion not more than 14 days before the hearing date, section 16(4).

2. In awarding costs in relation to proceedings where an application was made to direct mediation, a court may, where it considers it just have regard to any unreasonable refusal or failure by a party to the proceedings to consider using mediation and any unreasonable refusal or failure by a party to attend mediation following an invitation to do so pursuant to section 16(1).

3. In cases where the court directs mediation, it may order a mediator to produce a report for the court which would state if mediation did not take place, why it did not take place, details of any mediation agreement reached and if some agreement reached, the terms of that agreement.

Any report must be given to the parties at least seven days before it is lodged in the court by the mediator, except where otherwise agreed or directed by the court. See Section 17.

4. Section 20 states in relation to mediation fees, that unless otherwise ordered by the court or otherwise agreed, the costs of mediation will be paid equally by the parties and ‘the fees and costs of a mediation shall be reasonable and proportionate to the importance and complexity of the issues at stake and to the amount of work carried out by the mediator’. However, the lack of a statutory system of regulation for mediators is to be regretted.

Mediation has the potential to greatly alleviate some of the stress and strain for those involved in the family law justice system and the Mediation Act 2017 is to be welcomed. It has already increased the profile of mediation as an alternative to court. The Mediation Act 2017 is a good first step on the road to increasing the use of mediation in family law disputes. The increased levels of information to be furnished by solicitors and the serious increase in the level of showing compliance with sections 5/6/7 of the Family Law Reform Act, 1989 and the Family Law (Divorce) Act, 1996 impose a much greater burden on solicitors to discuss alternatives to court proceedings with clients as early as possible in the family law dispute resolution process. P

Family Law

Solicitors must now make a statutory declaration (rather than certify) that they have complied with sections 5 and 6 of the Family Law Reform Act 1989 or sections 6 and 7 of the Family Law (Divorce) Act 1996

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Barra Lysaght is an associate in the commercial litigation department of LK Shields. He works in the area of employment, pensions and employee benefits.

Muireann Granville is also an associate in the commercial litigation department of LK Shields. She works in the area of litigation and dispute resolution

Legal Professional Privilege and the Data Protection Bill 2018 Barry Lysaght and Muireann Granville explore the impact of the Data Protection Bill 2018 on legal professional privilege in Ireland

T

he Data Protection Bill 2018, published on 1st February last, will implement, or give further effect to the General Data Protection Regulation (GDPR) and the related directive in Irish law. It will also replace the Data Protection Commissioner with a body to be known as the Data Protection Commission (DPC).

The bill introduces greater investigative powers for authorised officers of the DPC. However, these powers – for example the power to take documents and records from data controllers/processors – will still be subject to legal privilege.

A draft version of this bill known as the “General Scheme” was published in May 2017 and the provisions relating to legal privilege that were in the General Scheme have not been changed.

The bill provides that specified rights of data subjects and obligations of data controllers under the GDPR will not apply to the circumstances listed below.

The explanatory note to the General Scheme stated that these exclusions are intended “to protect legal privilege to the extent necessary and proportionate in a democratic society”. This is an important acknowledgement of the need to ensure that certain communications are not disclosed unless absolutely necessary. It reflects the principle enshrined in Recital 4 of the GDPR itself, which flags that the right to the protection of personal data is “not an absolute right” and must be balanced against other fundamental rights.

It will be of comfort to clients who receive data access requests to know that privileged communications will not have to be produced to a data subject. Of course, such communications will still have to satisfy the stringent tests applicable to both legal advice privilege and litigation privilege. Given that claims to privilege are increasingly challenged before the courts in the context of discovery exercises in court proceedings, we expect that claims to privilege in relation to personal data will be contested just as often.

1. Personal data that is processed for the purpose of seeking, receiving or giving legal advice (i.e. legal advice privilege).

2. Personal data in respect of which a claim of privilege could be made for the purpose of or in the course of legal proceedings, including personal data consisting of communications between a client and his or her legal advisers or between those advisers (i.e. litigation privilege).

3. Where the exercise of such rights or performance of such obligations would constitute a contempt of court.

The bill allows for the fact that a data controller or data processor may refuse to produce information to the DPC, or provide access to it on the grounds that the information contains privileged legal material. In such cases, the DPC or an authorised officer may apply to the High Court for a determination as to whether the information is privileged legal material. In making this court application, the DPC or authorised officer must have reasonable grounds for believing the information does not contain privileged material, and reasonable

Protection of Privileged Material

DPC Right to Apply to High Court

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Spring 2018 dsba.ie

fits.

Data Protection

grounds to suspect the information contains evidence relating to an infringement of the GDPR.

UK Bill Under the equivalent UK draft legislation, the Data Protection Bill, there will be (if the bill becomes law there) an obligation on the UK equivalent of the DPC to produce and publish guidance around how privilege may affect that office in the carrying out of its functions. That guidance is subject to consultation with the Secretary of State and must be laid before Parliament. The bill also defines both “privileged communications” and “legal advice privilege” – a point of contrast with the Irish bill.

Appointment of Independent Legally Qualified Person The ability to challenge claims to privilege through the courts is not new, and LK Shields has acted and advised in relation to many such challenges. However,

a new development introduced by the General Scheme and reflected in the bill is the court’s ability to appoint an independent, legally qualified person to assist it with challenges to claims to privilege.

The bill provides that the High Court may give directions regarding the appointment of a “person with suitable legal qualifications possessing the level of experience and independence from any interest falling to be determined between the parties concerned” to examine the information and prepare a report for the court to assist it in determining whether the information is privileged legal material.

Conclusion It is not yet clear whether the courts will appoint solicitors or barristers to carry out such tasks and it remains to be seen how widely this provision will be used. What is clear, is that the legislature acknowledges that the issue of legal professional privilege will continue to be an important one in the era of GDPR. P

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Key Employee Engagement Programme Lorna Osborne looks at one of the key announcements in the last Budget – the introduction of the Key Employee Engagement Programme (KEEP). She says that KEEP is a much-welcomed tax incentive scheme designed to support small and medium enterprises (SMEs) attract and retain ‘key’ employees in a competitive international labour market

Finance Act 2017

Tax Treatment under KEEP

Following heavy lobbying from the industry, the Government has reformed the taxation of employee share options with the introduction of the Key Employee Engagement Programme (KEEP) under the Finance Act 2017 (number 41 of 2017) (“2017 Act”).

KEEP is designed to encourage more SMEs to grant share options in order to reward, incentivise and motivate key employees which should, in the long term, aid growth of the SME and attract and improve retention of key personnel. This is done by allowing key employees to participate in the growth of the value of the SME in a tax efficient manner. Such a scheme has been lobbied for by the SME industry for years as a means of competing with larger companies for talent.

The main difference between the current tax rules and the tax rules under KEEP is that there is no tax liability for the employee on the exercise of a share option. The tax liability is deferred until the employee disposes of his shares and at that time only CGT will be charged on the profits made on the disposal. Therefore KEEP provides for a saving of 19% (based on current tax rates) in the tax payable by an employee on the gains made on share options.

Old Tax Rules Currently where an employee exercises a share option, he is generally subject to income tax, universal social charge (USC) and pay related social insurance (PRSI) at the date of exercise. The taxable amount is the difference between the market value of the shares acquired and the price paid to exercise the option. This has presented the following practical difficulties: 1. In order to determine any potential tax liabilities, the SME would have to undertake a valuation exercise in respect of the value of its shares which can be cumbersome and expensive; and 2. As SMEs are unable to offer their employees a market for their shares, employees are generally unable to sell some of the shares in order to fund the tax liability arising on the exercise of the options.

The employees would also be liable to pay capital gains tax (CGT) currently at the rate of 33%, on any profits made on the disposal of their shares in the future.

Key Features of KEEP The 2017 Act provides that a “qualifying company” in Ireland will have the opportunity to offer “qualifying share options” to “qualifying individuals” in a tax efficient manner provided certain qualifying conditions are met throughout the option-holding period. We set out below an outline of the qualifying conditions of KEEP: 1. Qualifying Company The SME granting the share option must be a “qualifying company” for the purposes of the relief. The “qualifying company” offering the share option must: • be incorporated and resident in Ireland (or resident in another EEA state and carrying on business in Ireland through a branch or agency); • not have its shares or other securities listed on a stock exchange (excluding the Enterprise Securities Market of the Irish Stock Exchange); • be an SME at the date of the grant of the share option (i.e. have no more than 250 employees and an annual turnover not exceeding €50m and/or an annual balance sheet total not exceeding €43m); and • be engaged in a trading activity (subject to some excluded activities including certain professional

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Spring 2018 dsba.ie Lorna Osborne is a solicitor at Eugene F Collins

services dealing in securities, dealing in or developing land, construction and forestry).

2. Qualifying Individual The “qualifying employee” who is granted the share option must: • be a full-time employee or director of the qualifying company and devote at least 30 hours per week to the service of the qualifying company; and • not directly or indirectly control more than 15% of the shares in the qualifying company.

3. Qualifying Share Option In order to be considered a “qualifying share option” the option must meet the following conditions: • The option must be over ordinary shares and have an exercise price that is not less than the market value of that class of shares in the company on the date the option is granted.

• The option must be held for a minimum of one year and must be exercised within ten years of the date of the grant.

• The value of all shares over which an option can be granted to any individual employee cannot exceed (i) €100,000 in any tax year; (ii) €250,000 in any three consecutive tax years; or (iii) 50% of the annual remuneration of the individual in the year in which the option is granted.

• The total value of all unexercised qualifying share options that may be issued by a company must not exceed €3m.

Reporting Requirements It will be necessary for qualifying companies to report full details of qualifying share options to the Revenue Commissioners by 31 March of the year following the

Practice Management

year in which the share option was granted. Revenue may also require a qualifying company to furnish them with such information that will allow them to publish the following details on all qualifying companies: - the name and address of the qualifying company; - the date of exercise of the qualifying share options; - details on the general activities of the qualifying company; and - the amount of the tax advantage granted.

If the above reporting requirements are not met, the company will cease to be regarded as a “qualifying company” for the purposes of KEEP and the employee will be left with the tax consequences.

Commentary KEEP offers companies with high growth potential the possibility of granting tax efficient share options to key personnel, but only if the relevant qualifying conditions are met and these qualifying conditions are more restrictive than was hoped for.

For example, the definition of “qualifying trade” in the legislation excludes a significant number of sectors such as financial services which is a significant disadvantage. Also, the requirement that individuals must work a minimum of 30 hours a week for the relevant company will likely exclude consultants and other freelance employees from KEEP as well as individuals working in start-up SMEs who are not being paid a salary. Further, the reporting requirements on SMEs will be onerous.

While the industry welcomes KEEP and its aim to support SMEs in attracting and retaining key personnel, the restrictive qualifying conditions under KEEP may mean that KEEP may have less of an impact on the industry than was hoped for. P

The main difference between the current tax rules and the tax rules under KEEP is that there is no tax liability for the employee on the exercise of a share option

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Mark Jones is a trainee solicitor at Lavelle Solicitors

Litigation

New Service Rules Mark Jones reports on the new rules for service of summonses and other court pleadings in light of the passing of SI 2017/475

In addition, the new rules allow for parties to indicate that they are willing to accept service of documents in the proceedings by email

O

n 27th November 2017, the rules of the Superior Courts (Service) 2017 (S.I. 475 of 2017), came into effect. The purpose of this SI is to update Orders 4, 9 and 12 of the rules of the superior courts in order to facilitate the service of proceedings by registered post in specified circumstances, as an alternative to personal service. In addition, the new rules allow for parties to indicate that they are willing to accept service of documents in the proceedings by email.

Order 9 of the rules of the superior courts which deals with the service of summonses, has seen the biggest change as a result of the new rules. Order 9 no longer requires the service of any summons on a defendant by personal service “if it be reasonably practicable”. While this option is still open to plaintiffs, Order 9 has been amended to reflect the growing number of summonses being served by registered post, and now allows for service to be effected by sending a copy of the summons by registered post to the defendant’s last known residence or place of business in the State, or else

an address in the State provided by the person to be served. Service in this manner shall only be deemed effective with proof of delivery of the envelope to the address of the person to be served. Service may still be effected on a defendant by delivering a copy by personal service at the defendant’s place of business, last known residence, or family member provided the original summons is shown to them. However, Order 9 rule 16 specifies that the new rules shall not apply to documents where personal service is required.

The original summons must then be endorsed by the summons server to reflect the fact that a copy of the summons was served by registered post, and any Affidavit of Service must exhibit proof of delivery of the envelope in which the copy summons was sent (Order 9 rule 12). A new formula of words for an indorsement of service by registered post has been included at O9 r12(1A) RSC. Order 4 rules 14 and 15 of the RSC which deal with the indorsement of service, have been amended to provide that where a summons has been served by email, it is open to the plaintiff or their solicitor to include an email address in lieu of an address to which documents in the proceedings may be sent electronically.

On the other side, Order 12 rules 16 and 17 now similarly allow a defendant or their solicitor to state in the memorandum of appearance an email address to which documents may be sent electronically where the defendant consents to same.

Order 12 rule 7A has been inserted by the new rules in cases where entry of an appearance is not required or where consent to the receipt of documents has not been endorsed on the summons or the memorandum of appearance. In such cases, it is open to a solicitor or the party in person to give notice of such consent by letter to the other party or their solicitor. This notice may be sent by ordinary, prepaid post but must be set out in writing.

Finally, the schedule to the new rules amends the forms for the plenary summons, summary summons, special summons, the various forms of memorandum of appearance, the petition to the High Court under O97 r4 contesting an election, and the personal injuries summons to demonstrate the formula of words to use where service has been effected by registered post, or where an email address has been included in the endorsement of service to allow for the service of documents electronically.

While it is the case that summonses and documents in proceedings have been served by registered post and email for some time now, it is good to see the RSC updated to reflect current practice. P

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Time Limits in Equal Status Litigation Maura King, BL alerts practitioners to matters relevant to determining the time period for making a claim in respect of discrimination under the Equal Status Acts 2000 – 2015 “the Acts” where the alleged discrimination arises in the context of a contract of insurance

T

he “Acts” prohibit discrimination in the provisions of goods and service, the provisions of accommodation and access to education.

The ten grounds on which discrimination is prohibited are as follows: 1. The gender ground 2. The civil status ground 3. The family status ground 4. Sexual orientation ground 5. The religion ground 6. The age ground 7. The disability ground 8. The grounds of race (includes race, colour, nationality or ethnic or national origins).

9. The Travelling community ground 10. The housing assistance ground only in the provision of accommodation. The housing assistance ground was inserted by the Equality (Miscellaneous Provisions) Act 2015.

Practitioners should note that prior to lodging a complaint, the complainant should first send a notification in writing to the respondent. A sample form ES1 is provided on the Workplace Relations Commission website. The form should be sent within a period of two months which can be extended for a maximum four months for reasonable cause and exceptionally may be waived if it is fair and reasonable in the particular circumstances of the case. The possibility of a waiver of the notification requirement means that a notification served late is not necessarily fatal to a claim.

Statutory Time Period for a Claim Entirely fatal to a claim is a claim that is not made within the statutory time limit. The statutory time limit at first sight seems entirely straightforward. Section 21 6(a) of the Acts provides a that a claim for redress in respect of prohibited conduct may not be referred under the section after the end of the period of six months from

the date of the occurrence of the prohibited conduct to which the case relates, or as the case may be, the date of its most recent occurrence. In brief the claim must be brought six months from the alleged incident or the most recent occurrence in a chain of incidents. The six-month period can be extended for reasonable cause to a period not exceeding 12 months pursuant to section 21 6(b).

Time Period if Ongoing Relationship Section 21 (11) of the Acts (a 2004 insertion) necessitates enquiry as to whether the alleged discrimination occurred in the course of an ongoing relationship. Section 21(1) states “for the purposes of this section prohibited conduct occurs – (a) if the act of constituting it extends over a period, at the end of the period, (b) if it arises by virtue of a provision which operates over a period, throughout the period”.

Time period – Insurance Contract In a 2008 case King v the Voluntary Health Insurance Board DEC-S2008-116, (parties’ names were published at that time) Mr King claimed that he was discriminated against by the respondent on a gender ground on the basis that he was being charged by the respondent for maternity related benefits as part of his health insurance which he claimed he could not avail of due to his gender. Mr King submitted his complaint to the Equality Tribunal on the 2nd of December 2005. VHI submitted that the date of occurrence of the alleged incident of discrimination was either the date Mr King first subscribed to Plan D cover (22nd of July 1991) or at the latest 1st of February 2005 when he renewed his policy. The equality officer found that the alleged discriminatory term in the complainant’s contract of insurance was an ongoing term in his policy throughout the duration of the contract between the parties. Mr King’s claim therefore was in time. The consequence of the decision is that the six-month time period did not begin to run until 1st February 2006.

Mr King’s case failed on the substantive issue as VHI

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Spring 2018 dsba.ie Maura King is a barrister with a general civil practice. She is a member of the working group preparing a code of practice for legal professionals. She is an elected member of the Bar Council

was legally obliged to include maternity benefits in every health insurance contract it offered and was not permitted to charge a lower premium to persons based on their gender. Judy Walsh in her textbook, Equal Status Acts 2000 to 2011, references King as the footnote reference to the statement that “A term in insurance contract will operate throughout the duration of that contract, and so a complaint can be referred within six months of its termination even though the provisions may have been in place for a number of years”.

Time Period - Insurance Contract – Premia not Paid in Full The premia for contracts of insurance are frequently paid episodically for example, quarterly or monthly.

The recent case of A Complainant v Health Insurance Provider reference ADJ-0008117 decision dated 20th November 2017 distinguished the facts of A Complainant from King. A Complainant claimed discrimination on the grounds of age on the basis that her health insurance policy did not cover her mammogram when she was aged over 70 years. The renewal period of A Complainant’s insurance was 1st January 2016 to 1st January 2017. She did not pay the second moiety of the annual premium. The complaint was lodged on 10th April 2017. The equality officer found that the last possible date of prohibited conduct was 2nd July 2016, being the date the first moiety of her health insurance premium was paid up to. Unlike

King there was not an ongoing contractual relationship with the respondent to the end of the renewal period.

A Complainant had served the notification later than the maximum period by which the notification could be extended. The equality officer waived the notification requirement. MMB’s claim failed because she had not lodged the claim within six months of the date to which her premium was paid and on the facts the equality officer could not find a reasonable cause for extending the six month period. The facts of A Complainant’s case suggest that even had the claim been made on time, the claimant’s substantive case would not have succeeded as the health insurance provider was relying on two statutory exemptions.

Conclusion

Employment Law

Entirely fatal to a claim is a claim that is not made within the statutory time limit

A practitioner advising in respect of potential claims under the Equal Status Acts in respect of matters arising out of a term in an insurance contract should ascertain the date insurance cover ceased or will cease. The above cases suggests that if the full premium for the contractual period is paid, the complaint can be brought within six months of the end of the contractual period potentially extendable for up to 12 months on showing reasonable cause. If in contrast, the complainant has ceased making periodic payments, the claim can be brought within a period of six months from the date up to which the premium/premia is/are paid potentially extendable to 12 months for reasonable cause. P the Parchment 49

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In Practice

New Mediation Act Practitioners will be aware that new mediation legislation was passed, coming into force from 1st January 2018.

Please be advised to read the relevant sections. The Act requires solicitors when issuing proceedings to file

a declaration stating that they have advised their client of the option of mediation. Historically the Central Office did not file declarations, but this will be an exception. The Central Office’s staff have confirmed that proceedings will be issued without the declaration where one isn’t filed when proceedings are being issued. There is no provision for stamp duty currently in respect of the declaration. It is similar to the section 5 document which is filed as a matter of routine in family law proceedings, except that in family law proceedings it is a requirement before the proceedings will issue.

The difficulty with not filing such a declaration is that at a later stage the legislation provides that if the case is listed for hearing, a judge has an option to adjourn the case where such a declaration has not been filed. In the event that a judge chooses to ignore that, it is presumably open to a defendant to take issue with it and for those reasons, I would advise practitioners to make it a matter of practice that they file such a declaration when issuing proceedings in any civil cases. There is no recommended format at present. In the event that a format is agreed the DSBA will endeavour to circulate that to the profession.

There is however, a detailed precedent issued by the Law Society. This can be accessed on ezine@blackhall.nw007.com Barra O’Cochlain, DSBA Litigation Committee

Practice Note PROFESSIONAL INDEMNITY INSURANCE – EXTENSION OF COVER The minimum terms of professional indemnity insurance cover have been extended to cover theft of client account funds from 1st December next.

It is important to understand the process that is involved and what is and is not covered.

Firstly it should be noted that the definition of a claim has been extended to include the receipt by a solicitor of a notification of a requirement to rectify a shortfall in the client account from the Law Society.

This is intended to deal with circumstances where monies have been stolen through the actions of an external party from the client account or where monies have been dispatched from the client account as a result of the actions of external parties.

This does not include unexplained missing funds from the client account nor does it include dishonesty or fraud within the practice.

In order to have a successful claim you would have to demonstrate to the insurers that the monies were lost as a result of the actions of third-party criminals either by

way of accessing your accounts and transferring monies without lawful authority, or by way of misleading you with regard to destination of funds or inducing you to transfer funds to the wrong place.

The process involved would be a twin track process in that when you discover the shortfall you would notify firstly the Law Society who in their turn would issue a direction to you requiring you to rectify the shortfall.

At the same time you would notify your insurance broker so that both matters would run at the same time.

It is essential that in notifying your insurer that you set out in detail how it is that you can be satisfied that shortfall in funds is as a result of the unlawful actions of a third party.

Bear in mind that if the shortfall for your client is not rectified within 14 days then the Law Society will thereafter have the matter put before the High Court and therefore it is important that you process your claim with your professional indemnity insurers as quickly as possible.

If you are concerned that this is not sufficient cover for you, then of course it is open to you to seek further insurance including cyber insurance from your professional indemnity insurance providers.

Niall Cawley, DSBA Practice Management Committee

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News

Farewell Cara

Death of Matheson colleague stuns legal community There was widespread sadness among the legal community at the recent news of Cara O’Hagan’s passing following a short illness. She was head of the commercial real estate department at Matheson and was hugely respected by colleagues and peers.

Cara was hugely impressive as a lawyer but it was her warmth as person that colleagues and friends will remember her for. She joined Matheson (then known as Matheson Ormbsy Prentice) in 1996 as an apprentice and stayed with the firm for the rest of her legal career, rising to head of department overseeing a large team of property lawyers.

Cara will be tremendously missed and we extend our deepest sympathy and condolences to her family, friends and colleagues at Matheson.

Ar dheis Dé go raibh a h-anam.

DSBA Data Protection Seminar On Tuesday 27 February the Commercial Law Committee held a seminar, GDPR 2018 and Beyond. This very timely seminar (as we are now in the countdown to the 25th May 2018 deadline, the GDPR effective date) addressed the practical implications that practitioners face as a result of GDPR. The speakers gave attendees an insight into the changes being brought about by the GDPR including the increased rights afforded to

data subjects. The speakers highlighted the practical steps that lawyers and organisations need to take in order to ensure compliance with the new data protection regime.

Laura Fannin, commercial and business partner at Hayes Solicitors, stimulated the minds of participants with her overview of the GDPR implications and shared her experience of the practicalities involved in becoming compliant. Mike Harris, partner

Speakers Fergal Crehan, Three Ireland, Laura Fannin, Hayes Solicitors, Mike Harris, Grant Thornton and Paul Ryan, chairperson of the DSBA Commercial Law Committee

in Grant Thornton’s cyber security services team, gave his advice on the systems that solicitor firms will need to implement and what advices they can give their clients from the perspective of IT security and personal data risks. Fergal Crehan, data protection and privacy lawyer at Three Ireland, updated the audience on the expanded rights of data subjects. A lively question and answer session followed.

Geraldine Gilleece, Geraldine Gillece & Co, Jim Gollogley, JS Gollogley Solicitors

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News

Mr Justice Sean Ryan Retires The DSBA wish Mr Justice SeĂĄn Ryan, President of the Court of Appeal every happiness on his retirement. Mr Justice Ryan sat for his last day in the Court of Appeal on 26th March 2018.

He was called to the Bar in 1972 and later called to the Inner Bar in 1983. He was appointed a judge of the High Court in 2003.

Noted for his good listening ear and sharp intellect, Mr Justice Ryan will be fondly remembered for the courtesy he showed to all who appeared before him.

European Court of Justice Rules that UBER is a Service The electronic platform UBER provides by way of a smartphone app, a paid service consisting of connecting non-professional drivers using their own vehicles with people who wish to make journeys.

In 2014 the Barcelona Professional Taxi Drivers’ Association brought an action before the Barcelona Commercial Court seeking a declaration that the activities of the UBER Systems Spain amounted to misleading practices and acts of unfair competition. Neither UBER Systems Spain nor the non-professional drivers of the vehicles concerned had a licence or authorisation as required under the regulation on taxi services in the

metropolitan area of Barcelona. In order to determine whether the practices could be classed as unfair, a practice that would infringe Spanish rules on competition, the Commercial Court considered it necessary to ascertain whether or not UBER required prior administrative authorisation. The court went on to consider that it should be determined whether the services provided

by UBER are to be regarded as transport services, information society services or a combination of both. Whether or not prior administrative authorisation was required depended on the classification adopted. In particular, if the service at issue was covered by the directive on services in the internal

market, or the directive on electronic commerce, UBER’s practices could not be regarded as unfair practices.

In the judgment handed down on 20th December 2017, the court declared that the UBER service must be regarded as being inherently linked to a transport service and accordingly must be classified as a service in the field of transport within the meaning of EU Law. Consequently, such a service must be excluded from the scope of the freedom to provide services in general as well as the directive on services in the internal market and the directive on electronic commerce.

The court took the view that the service provided by UBER is more than an intermediation service consisting of connecting by means of the app a nonprofessional driver with the person who wished to make an urban journey. The court noted that the app provided by UBER was indispensable both for the drivers and the customers. They also pointed out that UBER exercises decisive influence over the conditions under which the drivers provide their services as a consequence the directive on electronic commerce did not apply to the service which was also excluded from the scope of the directive on services in the internal market.

Greg Ryan (Greg Ryan Solicitors)

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Employment Law

Photography: Cian Redmond

Chief Justice launches DSBA Employment Law Committee The Chief Justice Frank Clarke formally launched the DSBA’s new Employment Law Committee at a well attended reception in the Radisson Hotel, Golden Lane which was kindly provided by LK Shields Solicitors.

DSBA President Aine Hynes said it was a great honour for the DSBA to have Mr Justice Frank Clarke launch the committee.

Marguerite Bolger, SC also spoke at the event and provided a very interesting discussion on recent case law in the area. The new committee is chaired by Ciara O’Kennedy,

partner at LK Shields. The new committee also consists of: • Ken Breen, Shannon and O’Connor Solicitors – kbreen@shannonoconnor.ie • Anna Broderick, Eversheds Sutherland Solicitors – annabroderick@evershedssutherland.ie • Julie Austin, McDowell Purcell Solicitors – jaustin@mcdowellpurcell.ie • Dermot Casserly, Beauchamps Solicitors – d.casserly@beauchamps.ie • Jim Waters, Waters & Associates –

Chief Justice Frank Clarke, President of the DSBA Robert Ryan

Shéana Kiernan, Laura Reid, Alison Martin, Beauchamps Solicitors

jimwaters@waa.ie • Peter Murphy; O’Mara Geraghty McCourt Solicitors – petermurphy@ omgm.ie • Laura Graham, Reddy Charleton Solicitors – lgraham@reddycharlton.ie • Aoife McFadden, Ibec – aoife. mcfadden@ibec.ie • Mary Gavin, Hayes Solicitors – mgavin@ hayes-solicitors.ie • Ailbhe Dennehy, A & L Goodbody – adennehy@algoodbody.com

Mary Gavin, Ken Breen

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DSBA Practice Management Seminar

The DSBA Practice Management Committee hosted a CPD seminar on 5th December 2017. The seminar addressed the money laundering legislation and obligations for solicitors; Revenue inspection and revenue powers of inspection of client affairs; and solicitors’ accounts regulations and Law Society audits.

The speakers at the DSBA seminar were Colm Dunne, Law Society investigating accountant; Fiona Stanley, Law Society investigating accountant and Grainne Duggan, BL. The seminar was chaired by Niall Cawley, chair of the DSBA Practice Management Committee.

Photography: Michael Finn

Left to right: John Greene, PC Moore; Niall Cawley, Niall T Cawley Solicitors; Grainne Duggan, BL

Left: Sarah Walsh, Carlisle Solicitors; Maria Lakes, Tracey Solicitors; Caoimhe McConnell, Tracey Solicitors Far left: Brian Cunneen, O’Malley Cunneen McCarthy; Sharon O’Malley, O’Malley Cunneen McCarthy; Stephanie McCarthy, O’Malley Cunneen McCarthy

Right: Peter McEvoy, Fitzpatrick Gallagher McEvoy; Garrett Cormican, BLM; Darragh McEvoy, Fitzpatrick Gallagher McEvoy Far right: Jonathan Whisker, Crowley Millar; John White, Beauchamps; Jason McGoey, JA McGoey

Left: Manus Sweeney, Manus Sweeney & Co; John Spanner O’Malley, John P O’Malley & Co; David Pigot, D R Pigot & Co. Far left: Michael Hayes, Hayes & Co; John M Bourke, Bourke & Co

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Spring 2018 dsba.ie Photography: Michael Finn

Left to right: Richard Willis, Arthur Cox; Conor McDonnell, Arthur Cox; Deirdre O’Mahony, Arthur Cox; Brian O’Gorman, managing partner, Arthur Cox; the Honorary Mr Justice Frank Clarke, Chief Justice; Joanelle O’Cléirigh, Arthur Cox; Eve Mulconry, Arthur Cox; Andy Lenny, Arthur Cox

DSBA Younger Members Committee Seminar

The DSBA Younger Members’ Committee held a CPD seminar on 13th December 2017. The seminar was entitled Pre-Trial Case Management Rules One Year on – Tips and Common Pitfalls.

The seminar was hosted at the offices of Arthur Cox and was chaired by Mr Justice Frank Clarke, Chief Justice. The DSBA would like to thank Arthur Cox for their welcome and hospitality.

Right: Eve Mulconry, Arthur Cox; Killian O’Reilly, DSBA Far right: Robert Ryan, DSBA President; the Honorary Mr Justice Frank Clarke, Chief Justice; Laura Horan, DSBA; Deirdre Farrell, Amorys Solicitors

Left: Joanelle O’Cléirigh, Arthur Cox; Conor McDonnell, Arthur Cox; Richard Willis, Arthur Cox Far left: Andy Lenny, Arthur Cox; Robert Ryan, DSBA President

Right: Brian O’Gorman, managing partner, Arthur Cox; the Honorary Mr Justice Frank Clarke, Chief Justice; Robert Ryan, President, DSBA Far right: Martin Hayden SC; Shahinaz Keating

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Dublin Southside Solicitors Annual Gathering

The solicitors of Dun Laoghaire and surrounding environs gathered for the 33rd annual black tie social on 2nd February 2018.

A great night was had by all.

Photography: Dermot Byrne

Left to right: Ken Murphy, Law Society, Gerry Lambe, Jimmy McCourt, Matthew Kenny

Left: Justin McKenna, Judge Rosemary Horgan Far left: Mary Swords, Geraldine Kelly and Linda Lawless

Right: Joan O’Mahony, Sean Kinsella, Clare McKenna and Yvonne Chapman Far right: Greg Ryan, Joan Doran, Susan Martin

Left: Fiona McAllister, Ronnie Lynam, Judge Anne Watkin Far left: Sharon Scally, Vivian Matthews

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Spring 2018 dsba.ie Photography: Paul Sherwood

Right: Robert Ryan, President DSBA; Patricia Cranny, PG Cranny

DSBA Northside Social

The DSBA hosted a social evening on 15th February 2018 for northside colleagues. The gathering took place at the Bohemian Bar, Doyle’s Corner where colleagues dropped in on their way home from the office for a social drink.

The DSBA wishes to thank the Bohemian Bar for hosting the event and to colleagues for joining us. If members wish to suggest a similar event or any social or sporting event they would like to see the DSBA host in their area of Dublin, then please email matthew@osullivankenny.ie with your suggestion.

Left: Laura Horan, Darcy Horan & Co; Ronan McLoughlin, Gallagher Shatter Far left: Diego Gallagher, Byrne Wallace; Gerry O’Connell, Doherty Ryan

Right: Matthew Kenny, O’Sullivan Kenny; Padraig Keenan, Ryan & Associates Far right: Tony O’Sullivan, Beauchamps, Richard Young, Sheehan & Partners

Left: Mark O’Sullivan, O’Sullivan Kenny; Clodagh Buckley, Gore & Grimes Far left: Joan Doran, Joan Doran Solicitors; Sue Martin, Martin Solicitors

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DSBA Southside Social

The DSBA hosted a social evening on 22nd February 2018 for Southside colleagues. The gathering took place at Peggy Kelly’s, Harold’s Cross where colleagues dropped in on their way home from the office for a social drink.

The DSBA wishes to thank Peggy Kelly’s bar for hosting the event and to colleagues for joining us. If members wish to suggest a similar event or any social or sporting event they would like to see the DSBA host in their area of Dublin, then please email matthew@osullivankenny.ie with your suggestion.

Photography: Paul Sherwood

Left to right: Keith Walsh, Keith Walsh Solicitors; Elaine Given, Shannon and O’Connor; Brian Crowe, Brian Crowe and Co

Left: Greg Ryan, Greg Ryan Solicitors; Niall Cawley, Niall Cawley Solicitors Far left: Robert Ryan, President DSBA; Eamonn Carney, Carney McCarthy

Right: Denis Ryan, Keith Walsh Solicitors; Stuart Stein, Stuart Stein Solicitors Far right: Jessica Boyne, Patrick F. O’Reilly and Co; Niall McCarthy, Mullany Walsh Maxwells; Jacinta O’Sullivan, Patrick F O’Reilly and Co

Left: Joe Durkan, Keith Walsh Solicitors; John Nelson, Nelson and Co Far left: Denise McNulty, Kelly and Griffin; Deirdre McDermot, Denis Finn Solicitors

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Spring 2018 dsba.ie Photography: Michael Finn

DSBA Commercial Law Seminar

The DSBA Commercial Committee hosted a CPD seminar on 13th March 2018.

The seminar was entitled IrishChinese Trade, Opportunities and Challenges.

The guest of honour was His Excellency Dr Yue Xiaoyong, ambassador extraordinary and plenipotentiary of the People’s Republic of China to Ireland.

Speakers at the event were Marie O’Brien, A&L Goodbody; Caroline Devlin, Arthur Cox and Gerard McGrath, McGrath McGrane.

Above: H E Yue Xiaoyong, Chinese ambassador to Ireland; Chan Shi, ACSK; Robert Ryan, President, DSBA; Luolan Jin, Chinese Embassy Above: H E Yue Xiaoyong, Chinese ambassador to Ireland Right: Ping Bai, Crowley & Millar; Marie O’Brien, speaker Far right: Robert Ryan, President DSBA; Chan Shi, ACSK; H E Yue Xiaoyong, Chinese ambassador to Ireland

Left: Paul Ryan, DSBA, Chair; Gearóid Carey, Matheson; Louise Corrigan, Louise M Corrigan & Associates Far left: Caroline Devlin, speaker; Chan Shi, ACSK

Right: John Carroll, Crowley Millar; Gerry McGrath, speaker Far right: Orlaith Byrne, Giles J Kennedy & Co; Michael Crowley, Patrick F O’Reilly

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John Hogan is a partner at Leman Solicitors

Closing Argument John Hogan

Sit with your colleagues and your clients. Get to know them. Care about them. You’ll get it back in spades

Ten Fast Years

R

emember the day I quit the job to start up a new firm? It was the 27 October 2006.

Had a headache from 5am.

Spoke to dad on the way to work. Had to cut the call short – fear of the lump that was rising in my throat. Words of encouragement. Badly needed them but then choked when they came. Sorry dad – call you back later. Head thumping. Into the boss’s office. Caught him cold but he was great about it. Cheers Alan – never forget that. Pints that evening in Toners with Larry - suddenly a partner in a law firm. Just like that! Like a couple of giddy children. Nicest pints ever. Come on world – let’s have you.

Two lads, a small room on a lane and a load of unrealistic optimism. No wives, no kids, just big mortgages. Nothing to lose and everything to lose.

Opened up shop on 1st January 2007.

A couple of family clients (“send me a bill so I can pay you!”) and new shoes to break in. Walking the streets looking for a start.

A couple of lucky breaks. Pretending you could do some of this law stuff – need a will done? Collect a few bob? Can do. Say yes to everything. Hold 7am network meetings in the Red Cow? See you there. Funny stories.

Start-up land.

One-year in. The world collapses. Can’t downsize when there are only two of you.

Last in first out? Roll up the sleeves. Longer hours, harder grind. Always be positive.

Client goes bust. Heartbreak. Always strive for a bigger thing. Surprise yourself. Big firms swing their axes. Great people get hurt. Pick them up – we’ll give you a start.

Dust yourself off – you’re great. We can

do this. Keep smiling – everything is an opportunity.

Make a few mistakes. Make a few more.

Learn a bit each time. Get a culture going.

Get brilliant young people to follow you.

See them grow and become brilliant. This is more than us – it’s them. Feel so proud of them – heart thumping! Big firms come hunting. A curse – or maybe a compliment?

Every year a blank page. Where’s the work coming from? Are people happy?

Have to keep your culture strong. Some will stay, some will go. Breaks your heart every time but you believe in what you’re doing.

Keep the faith. Be true to yourself. You’ll get there. People see it. They want to be around you. It’s powerful. When you drift, they drift. Get back to your core – to your true self.

Work is brutal for a few years.

Receiverships, examinerships, sinking ships.

No Champagne. Just getting through it. Do what it takes to keep the lights on. Finally, things are looking up. Ten fast, tough years.

Challenges ahead. Nothing like what we’ve been through.

Why do we do it? We enjoy using our skills to help people. Simple. Makes us feel good. We are so fortunate. The computers are coming but they don’t connect like we do. They don’t get inspired, or teary or passionate. That’s the stuff that matters.

Let the technology do the rest. Sit with your colleagues and your clients. Get to know them. Care about them. You’ll get it back in spades. This is a contact sport. Get bruised once in a while but recover and become better. Work on relationships – at home, at work, with your clients. Invest in them

and stay true to yourself. Have genuine conversations. Avoid bullshit. Everyone struggles and is coping. Be fair to yourself and your colleagues – they are good people, doing the best they can.

Get the technology to help you. Don’t fear it – embrace it. Take time to learn and improve yourself. Take a course. Open your mind. Don’t blame others. Avoid negative people who suck away your positivity.

Broaden your interests. Keep up your (now forgotten) hobbies. It makes you interesting and gives you new things to talk about. You’ll be inspired. Get back to stuff you loved when you were young. You will inspire others without even knowing it.

Watch out for yourself and your wife (or husband, or partner, or mum or dad or son or daughter). You’ll get sucked into the job. It can dominate your thoughts. They’ll understand and back you. Thank them. Pay attention to them and appreciate what they sacrifice for you (quiet stuff – the phone checking, the interrupted holidays, the lateness for everything… the distractions).

Love them and never forget why you’re doing this. It’s for them.

Be your true self. Don’t judge yourself or others. Strive to improve yourself always.

You will need to. Standing still won’t cut it.

Don’t get complacent. Be kind to yourself and others. Celebrate your successes. Be grateful and never forget how fortunate you are. Give thanks always and help others always.

Ten years will fly by. Then a knock on the door comes. One of your stars walks in with a white face and a headache.

“Can I have a word?’…. P

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IF IT FEELS LIKE THIS JUST FELL ON YOU

WE’RE HERE TO HELP

Consult a Colleague now in total confidence

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

A confidential free service from the DSBA.

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