Parchment Summer 2018

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D UB LIN SOLICITORS’ B AR ASSOCIATION MAGAZ INE | S UMMER 2018 | ISSU E 76

FIT FOR PRACTICE DSBA recommendations on legal education of solicitors

KEN SMYTH CROSS-EXAMINED DSBA SUBMISSION ON DEPRIVATION OF LIBERTY SAFEGUARDS

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Date AML checks complete 08/03/2018.

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

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Summer 2018 dsba.ie

From the Editor

T

he DSBA has never worked as hard for its members. In this edition of the Parchment, you will see two detailed DSBA submissions on the future education of solicitors and the safeguarding on deprivation of liberty of vulnerable persons.

The Legal Service’s Regulatory Authority has given an opportunity to the DSBA and other stakeholders to comment on how best the training and education of solicitors can be modified and/or improved. This is a golden opportunity and the DSBA has put forward a suite of recommendations which will hopefully be considered as part of the overall consultation process.

You can read the DSBA submissions on page 28.

With ongoing concerns about the safeguarding of older people, persons with disability and certain categories of people with mental health issues, the Government recently announced a public consultation on draft legislation relating to deprivation of liberty of such persons. The DSBA, thought its Mental Health and Capacity committee, submitted a comprehensive document on the issue

and you can review this on page 10 of this edition of the Parchment.

The winners of the 2018 DSBA th Annual Law Book Awards were announced at an awards ceremony in June. Our congratulations are extended to the winners, and also to the shortlisted nominees in what was a crowded field of outstanding authors. The current range of legal textbooks available to assist practitioners is of the highest standard. Our congratulations to Mark de Blacam SC for his superb Judicial Review book and to Brian Spierin SC for his winning book on the Succession Act 1 and related legislation. On the night, it was a fitting honour for the DSBA to bestow recognition on Brian Gallagher and Alan Shatter for their outstanding contribution to the law. They have made immense contributions.

Have a great summer.

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.

the Parchment 1

Summer 2018

Contents 6

20 minutes with....

Fiona McEntee Julie Doyle meets the entrepreneur and Chicago-based Irish solicitor

12

The DSBA has made detailed submissions on the draft legislative provisions proposed for safeguarding older people, persons with disability and certain categories of people with mental health issues

Post Brexit Advantage

20

Revenue Audit of your Practice

24

DSBA Annual Book Award Winners

Joe O’Malley assesses the position of Ireland as a venue for international arbitration after Brexit

Susan Martin gives insight into her personal experience and provides useful advice

A report on the recently crowned winners at the DSBA Awards

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

2 the Parchment

page 32

CROSS EXAMINED... KEN SMYTH

DSBA Submissions on Deprivation of Liberty Safeguard

16

Don’t come into the law for money, you have to love it; there has to be a reason to get you out from under the duvet every morning, do it because you want to do it

32

Summer 2018 dsba.ie

Contents

REGULAR FEATURES 01 04 48 49 54 64

Editor’s Note President’s Message In Practice DSBA News Photocall Closing Argument

24 28

DSBA Recommendations on the future education of Solicitors The Dublin Solicitors’ Bar Association recently made a detailed submission to the Legal Service Regulatory Authority (LSRA) as part of a public consultation

32

Cross Examination

36

How to get more Clients?

38

Redundancy Claims

40

Justice Delayed is Justice Denied

42

Legal and Political Gold

46

Pension Scheme Funding Proposals: Are they Enforceable Contracts?

Gerard O’Connell interviews the well known Dublin 2 practitioner Ken Smyth

A recent UK survey about solicitors has produced some interesting data. Flor McCarthy says that the answer to more clients rests with the one’s you already have

46

Richard Grogan warns that these time limits can catch colleagues out

Michael Kelly looks at the rules of the superior courts and the courts’ right to strike out proceedings for want of prosecution

Kevin O’Higgins spends time with ex William Fry partner, Brendan Heneghan

Sonya Dixon examines case law on liability for an employer arising from a funding proposal

42 the Parchment 3

Message from the President

Summer at Last – Time to Chill

W

e have plenty of articles and pictures in this edition of the Parchment for you to peruse as you lie out, or contemplate lying out, on a beach in Dublin Bay or Brittas Bay - with the only worry being whether you have enough factor 0 If you don’t have time to turn (or scroll) the pages, this message provides a precis summary of all the activities that the DSBA has been engaged in over the last uarter.

As you will see we have been very busy Our CPD Programme has been in full ow and runs now up to the end of July when we break for the summer. We thank our speakers and our members for their continuing support of what are as ever, very high uality seminars.

The DSBA Mental Health Committee, led by its Chair Joan Doran, prepared and submitted to Government in early May an excellent paper on DOL (Deprivation of Liberty) concerning vulnerable persons.

The DSBA was also consulted in May on the Brexit Legal Services submission to Government prepared jointly by the Bar Council of Ireland and some of the larger Dublin law firms, a very worthy initiative designed to promote Ireland as a destination for international legal services.

The DSBA Legal Services Regulation taskforce, led by yours truly, in mid-June prepared and submitted to the Legal Services Regulatory Authority a detailed submission in response to its consultation on legal education in Ireland.

It has not been all work and no play so to speak, as we were delighted to host on 22nd June in the Conrad Hotel the DSBA midsummer party and Law Book Awards. We had over 1 0 people in attendance for the event which was slightly restructured this year (no black tie), to create a more chilled ambiance (it being midsummer after all ).

We were honoured to have Mr Justice Gerard Hogan present the Law Book Awards to each of the winners and yet again found ourselves in the press (Irish Times) for comments made at the event (this year by Alan Shatter and last year by Mr Justice Peter Kelly) on the Judicial Appointments

4 the Parchment

Bill. My thanks to Maura Smith, Elaine Given, Keith Walsh, Matthew Kenny and Laura Horan for all their work in organising what was a most enjoyable event.

We were guests of the Belfast Solicitors’ Association on 1 th May as it hosted the reactivated inter-solicitor association golf competition in Malone Golf Club.

A wonderful claret jug trophy was commissioned by the BSA and part funded by the DSBA, and will be played for each year going forward. Suffice to say that the BSA won on the day, but there’s always next year in Dublin Thanks to Eamonn Shannon who organised the two DSBA teams, and also for organising (with Hugh O’Neill and Fiona Du y) the DSBA summer golf outing on 2 th June in Luttrellstown Golf Club.

Our DSBA cricket team marched into battle against the Bar in Leinster Cricket Club on 2 th June in the second annual

John Buckley Memorial cricket match, kindly sponsored by Beauchamps Solicitors.

A wonderful evening was had by all, even though the DSBA team lost out by a whisker.

The event was honoured by the presence of Claire Buckley, the widow of the late John Buckley. My thanks to Council members Tony O’Sullivan and Matthew Kenny for organising the event.

May I also thank our Parchment Committee led by Council member Gerard O’Connell, and our editor John Geary for bringing us this bumper edition of the Parchment. Keep up the good work we say.

Finally, may I mark the very sad passing recently of the late Judge (and former solicitor) Gr inne O’Neill. Gr inne will be very much missed by all of the legal fraternity. May she rest in peace.

Robert Ryan, DSBA President

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Lady Liberty Fiona McEntee, a Dublin-born lawyer is the founding and managing attorney of McEntee Law Group, an established law firm that exclusively handles US immigration matters from business, entertainment, and family-based immigration to deportation defense and citizenship cases. Fiona was named in 201 as a rising star in immigration law on the Illinois Super Lawyer list and in 201 in New York as one of the Irish Echo s 0 Under 0. She is on the frontlines of advocacy as a leading US immigration attorney for immigrants rights. The Parchment’s Julie Doyle caught up with her for 20 minutes

Fiona, you are a diaspora success story and your recent awards for 2018 include the Illinois State Bar Association Elmer Gertz Award for Human Rights as well as one of Chicago’s Notable Women Lawyers

by Crain’s Custom Media. Can you tell us a little about your background?

I was born and raised in Dublin. For my undergraduate degree, I attended UCD where I completed a BCL (International). During my third year at UCD, I had the opportunity to do an exchange programme in Chicago at DePaul University s College of Law. After that year I moved back to Dublin, completed my degree in UCD, and vowed to return to Chicago to become an attorney. In 200 I moved back to the States and completed a Juris Doctor (J.D.) at Chicago-Kent College of Law. I was given the maximum of a year s law school credit for my foreign law degree which allowed me to complete the J.D. in two years. I graduated from Kent in 200 and immediately took and passed the Illinois bar exam.

Why did you choose a career in law?

Growing up, my dad s nickname for me was Save-the-Whales . I was always passionate about environmental and social justice and looking back, it s no real surprise that I ended up practising immigration law. However, I did not come from a legal family and studying law was not necessarily an obvious choice.

Going into my sixth year of secondary school I thought about medicine, law and some other things, but I had no firm plans either way. On my mother s recommendation I met with a career coach and after a full day taking aptitude tests, he concluded that I would be best suited for a career in journalism.

Given that lots of journalists have a primary law degree, he recommended that path for me.

Let s just say that I m really glad I took his advice way back when 6 the Parchment

What made you decide to make a permanent move stateside?

Before taking part in the DePaul exchange programme, I had never thought about moving or working away from home.

However, from day one of my move, Chicago truly felt like a second home. From a career point of view, I really like the unified legal profession in the States, and after spending some time there in law school, I could really envisage a career as an attorney there.

Whilst studying for your Juris Doctor you worked in a number of immigration clinics. Can you tell us about that work?

I first thought of immigration law as an option when I saw it on the class list at Chicago-Kent. When I was as UCD, there was no option to study immigration and I had never really thought of it as a distinct practice area. When I saw it on the class, the Save-the-Whales in me knew it would be a great fit and I was absolutely right.

While at Chicago-Kent, I took all the immigration classes and clinics that were available. I worked at the law offices of Chicago-Kent in the Immigration Law Clinic, where I worked closely with business and family immigration law attorneys. I also did an internship at a pro/low bono immigration clinic, where I was able to attend citizenship interviews and work on asylum cases. During my time at Kent, I became absolutely positive that I wanted to be an immigration lawyer and upon graduation, I immediately began working full-time in the field and haven t looked back since.

You were a documented immigrant.

Were you aware of situations the undocumented Irish faced?

Yes, I ve always been very aware of the struggles of the undocumented immigrants,

Irish or otherwise. Since 200 , I have had an active role in Irish Community Services formerly known as Chicago Irish Immigrant Support. I initially started as a board member and now serve as its immigrant attorney, hosting monthly pro bono clinics.

Since moving to the States, in addition to practising immigration law, I have engaged in activism for immigrants including attending rallies and protests, lobbying in D.C. and many more advocacy activities that have become even more fre uent as a result of the current administration s policies.

Upon qualification you received the prestigious CALI Award, which is an award that goes out to the highest scoring student in each law school class. What led you to set up your own immigration practice?

Growing up in an entrepreneurial family I always knew I wanted to run my own business. Starting my own firm allowed me to make a more personal connection with my clients and allowed me to truly be the best advocate I could be for them.

My law firm, McEntee Law Group, now has a team of nine including my brother, Ray, who originally ualified as a solicitor in Ireland and later moved to Chicago in 201 to work in my practice. We exclusively handle U.S. immigration matters from business, entertainment and family-based immigration to deportation defence and citizenship cases. Our clients range from technology CEOs to rock stars like The Coronas and our satellite offices in Dublin, Ireland, and Quito, Ecuador, ensure great accessibility to our international clients.

I thoroughly enjoy both the legal advocacy and the practice management side of the business. I especially adore seeing our law student clerks fall in love with this area of

Summer 2018 dsba.ie Julie Doyle is Head of Legal Services at Cluid Housing

20 Minutes With...

the Parchment 7

the law the way I did back in 200 You have now become a prolific campaigner for immigration reform.

Can you tell us about the email you received from the International Refugee Assistance Project following the implementation of President Donald Trump’s executive order in January 2017?

Prior to the first travel ban, our bar association AILA (American Immigration Lawyers Association) received word that the President would be signing an order restricting travel for travellers from certain countries. Although the details were unknown, we began preparing and planning and my colleague/brother Ray and I had preemptively signed up to be on an emergency airport lawyer standby list through IRAP (International Refugee Assistance Project).

On the morning of January 28th, I received an email I will never forget: Sender: International Refugee Assistance Project Subject: Emergency Airport Response for Detained Refugees - REPLY NEEDED Message: We’ve received word that it is now DHS policy to detain with intent to deport all arriving refugees . . . If you are available to go to your designated airport NOW, fill out this survey indicating your location and I will follow up with an email connecting you to others who will be joining you.

How did you and your colleagues mobilise into action? How did you manage to secure the names of those affected?

Ray and I drove out to O Hare Airport together and along the way I started making some calls to journalists and media persons I knew. I explained the email and told them that while we did not know exactly what to expect, we thought it would be pretty horrific. Little did we know then, that Customs and Border Protection (CBP) would be detaining green card holders and US citizen babies for upwards of eight hours based solely on this new executive order that had been carelessly written and hastily signed the night before.

On arrival at O Hare we set up an emergency legal triage and people started approaching us asking for help and explaining that they had been waiting for hours for family members. I became the ad hoc media spokesperson for the O Hare Airport Attorneys and I advocated live on national television (MSNBC), international and local news outlets for the release of our clients and all the other detained individuals.

Our client that day was a green card holder who was there to pick up his wife, also a green card holder and their 18-month old U.S. citizen baby who were arriving home from a trip overseas. CBP detained his wife and child for over eight hours and they were only released after a judge in New York issued a temporary restraining order (TRO).

8 the Parchment

Can you describe for us some of the scenes you witnessed?

It was complete mayhem in airports all over the States and the live media footage captures just how chaotic it truly was. As the hours went by, the outrage grew as did the supporters and the protestors.

I made many calls including getting in touch with my friend, Irish Senator Billy Lawless who is based in Chicago and has spent over 20 years advocating for immigrants. Senator Lawless came out to O Hare as did lots of Chicago congressmen and supporters. My friend, Breand n Magee from Belfast originally but working in immigration in the States for many years, also showed up. Breand n works as the senior director of programs for the Illinois Coalition for Immigrant and Refugee Rights (ICIRR) and they brought busloads of advocates with them out to O Hare within a very short period of time.

I m so grateful for the supporters that day, and always, I know it made a di erence and the clients detained that day could hear the chants of the crowd urging CBP to release them. The entire airport was filled with people who wanted to support the detainees and their loved ones.

How long did you spend working at the frontline of O’Hare International airport?

I was on the ground at O Hare for weeks initially and thereafter, as one of the few immigration attorneys on the team, I remained on-call for months.

In a blow to the efforts of immigration defence lawyers, the U.S. Supreme Court recently ruled that the controversial travel ban was within the scope of Presidential authority under National Security, by a 5-4 majority. What do you believe is the impact of this ruling?

I am extremely disappointed and troubled by the Supreme Court s decision to uphold the travel ban. The decision endorses a policy that is clearly discriminatory and motivated by religious animus. The ruling undermines the Constitution by allowing this type of discrimination to come from the highest office in the United States.

The Supreme Court s decision will have a detrimental e ect – it will impact an untold number of families, companies and universities. It will keep families apart, impair the U.S. economy and prevent brilliant students from attending universities in the States. It does nothing to improve the safety of Americans while it ruins our reputation as the Nation of Immigrants worldwide.

A major part of President Trump’s agenda is fighting immigration and implementing a 'zero tolerance' policy.

The recent policy of separating children from parents seeking asylum in the US has sparked widespread outrage. What

was the purpose of the policy and do you believe there was a lawful authority to carry it out?

The purpose of the zero tolerance policy is patently clear: they want to deter individuals from seeking asylum in the U.S. Further, despite what has been said by the administration, there is absolutely no law that re uires the President to separate children from their parents. This is a policy that was solely implemented by this administration and they could have ended it just as uickly as they implemented it.

There was no need for the dog and pony show of an executive order that permits indefinite family detention.

In relation to the separation policy, I firmly believe that in addition to being grossly inhumane to separate asylum seekers who have travelled thousands of miles from extremely dangerous conditions, from their children, it is also against international law and policy. The UN High Commissioner for Human Rights has called this practice a violation of the rights of the child.

After widespread criticism of family separation, President Trump issued an executive order instructing the Department of Homeland Security to maintain custody of parents and children jointly. Do you believe this order will solve the crisis?

No. This crisis was created by the administration. The President could have just stopped the policy and there would have been no crisis to remedy. The executive order really does nothing to end the separation of families at the border; 2,000 children still remain separated from their parents. There is little to no evidence that the administration has a system in place for reunification. The administration is showing little empathy and it has yet to show that it intends to resolve the humanitarian crisis it alone created.

Finally, do you ever regret emigrating?

From the first day I started studying immigration law, I knew that this was my calling and I really consider it to be a vocation. While the past 18 months have been horrendously challenging, I could never imagine doing anything else. I describe practising immigration law as being simultaneously soul destroying and also immensely rewarding.

My team members, immigration attorney colleagues and I go home every night knowing that we re on the right side of justice and history in the fight for immigrants rights and when we do sleep, we sleep very well, comforted by the knowledge that we are truly making a di erence As our team and practice grows, I know that we are helping to build the next generation of dirty immigration lawyers How could I regret that P

BAIN AN MHEIRG DE DO CHUID GAEILGE ARD-DIOPLÓMA SA DLÍ-CHLEACHTADH TRÍ GHAEILGE (ÓSTAÍ AN RÍ) 2018-19

Neartaigh do chuid Gaeilge agus cuir ar do chumas seirbhísí dlí a thairiscint tríthi. Múintear idir Ghaeilge agus Dlí ar an sain-chúrsa seo.

Múintear gné an dlí den chúrsa tráthnóna Dé Luain (18:00-20:30) ó thús Dheireadh Fómhair 2018 go dtí mí an Mhárta 2019.

Ina theannta sin, bíonn deis ag rannpháirtithe freastal ar ranganna i gceart-scríobh na Gaeilge tráthnóna Dé Céadaoin (18:00-21:00).

Cuimsítear cúrsaí sibhialta agus coiriúla, dréachtú, abhcóideacht, comhchomhairle agus idirbheartaíocht. Tá an cúrsa seo ar oscailt do dhlíodóirí a bhfuil líofacht Ghaeilge acu agus dírítear ar na ceantair chleachtais ina ndéantar obair trí Ghaeilge.

Tátar ag cur le stádas oifigiúil na Gaeilge san AE agus beidh sí lán-oifigiúil faoi 2022. Bíonn éileamh seasta in Éirinn agus in Institiúidí AE ar dhlíodóirí ar féidir leo cleachtadh trí Ghaeilge.

“Bhí an cúrsa iontach spéisiúil, tairfeach agus praiticúil. Ba dheas eolas a chur ar na téarmaí dlí as Gaeilge agus cur lenár gcuid scileanna gairmiúla ó thaobh na Gaeilge de. Is iad na trialacha bréige is mó a thaithin liom mar aturnae a ní cuid mhór dlíthíochta. Ar bhonn pearsanta, tá mé ag súil go mór leis na scileanna a d’fhoghlaim mé a chur chun leasa mo chuid cliant.”

Michael Flanigan, Aturnae

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

Tuilleadh eolais: Dáithí Mac Cárthaigh BL dmaccarthaigh@kingsinns.ie | 087-2368364 | www.kingsinns.ie

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DSBA Submission on Deprivation of Liberty Safeguard In March 2018 the Government announced the opening of a public consultation on draft legislation relating to deprivation of liberty. The draft legislative provisions outline proposed safeguards for older people, persons with disability and certain categories of people with mental health issues to ensure that they are not unlawfully deprived of their liberty in residential facilities.

Here we set out the DSBA submission

Background The DSBA is a strong advocate of solicitors in their work on behalf of their clients and most particularly, their most vulnerable clients. Through the formation of the DSBA Mental Health and Capacity Committee in 200 the DSBA has brought together a specialist group of solicitors with a broad range of experience in their respective fields. The Mental Health and Capacity Committee actively educates and supports solicitors in their professional roles. The DSBA welcomes the movement towards greater legislative protections for vulnerable persons in relation to the deprivation of liberty and further compliance by Ireland with the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD).

1. By order of a court; 2. Under the provisions of the Mental Health Act, 2001; or . Under the provisions of the Infectious Diseases Act, 1 .

However, many people who do not fit within any of the above categories find themselves in situations whereby they are “de facto” deprived of their liberty e.g. nursing home, residential care settings, etc.

The Assisted Decision Making and Capacity Act, 201 (“the 201 Act”) proposes, inter alia, to extend the circumstances whereby a person may be legally deprived of their liberty and introduce a process of safeguards regulating any such deprivation of liberty.

Such proposed safeguards are commonly referred to as Deprivation of Liberty Safeguards (DOLS).

Consultation The DSBA welcomes the public consultation being undertaken by the Department of Health and sets out below the initial views of the DSBA in response to the uestions raised in the Department of Health’s Deprivation of Liberty: Safeguard Proposals 12 the Parchment

Consultation Paper (201 ) and the publication of the Preliminary Draft Heads of Bill on Part 1 of the 201 Act. It has been a difficult journey for Irish society to right many of the wrongs committed to the most vulnerable persons within our community. The proposed legislation will go far to providing tangible safeguards and protections for all of us who find ourselves dependent on others.

Given that the issues are so far reaching this submission is one made in the hope, whether through further public consultations or otherwise, that there will be further opportunities for the DSBA to contribute to considerations of this topic.

Definitions 1.1 Do you have any views on the definitions currently included in this draft Head?

1.2 In particular, do you have any views as to the types of healthcare professionals that should be included within the definition of “other medical expert”?

1.3 Do you have any other views specific to Head 1?

Response The DSBA recommends: 1.1 The definition of “person in charge” re uires to be explained more precisely. For example, is it proposed that the “person in charge” be the CEO of an organisation with responsibility for a relevant facility or the person supervising a ward on a particular shift at a relevant facility The definition of “relevant facility” re uires to be comprehensive enough to include the wide variety of residential/therapeutic settings now occupied by vulnerable persons.

The definition of “relevant person” must be considered in the light of the fact that there is always a presumption of capacity. There should be consistency

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in definitions throughout the legislation.

1.2 The definition of “other medical expert” may not be appropriate as a “medical expert” is not re uired to decide whether a person lacks decision making capacity. The 201 Act sets out the legal test with regard to decision making capacity, whereas a medical diagnosis is re uired in relation to mental illness. It should be made clear that “lack of decision making capacity” is not a “mental illness”. Similarly a person with a mental illness may not lack capacity.

Given the developments in medical practice to move towards multi-disciplinary teams, it may be more appropriate to refer to “health care professionals” rather than “other medical expert”.

(j) any other person re uests a capacity assessment.

Procedure for Routine Admission of a Relevant Person to a Relevant Facility

2.1 Do you have any views specific to Head 2?

4.1 Do you think the term “under continuous supervision and control” should be defined?

If so, what should this definition include?

4.2 When the person in charge has reason to believe that a relevant person may lack capacity to decide to live in a relevant facility, who should be notified with a view to affording them the opportunity to make an application to court under Part 5 of the Act? This issue also arises in Heads 3(3), 7(4) and 8(1).

4.3 Do you have any other views specific to Head 4?

Response

Response

The DSBA recommends: 2.1 That a comprehensive admission procedure be applied to all admissions to a relevant facility, so as to facilitate proper regulation of all admissions.

Such a comprehensive admissions procedure will facilitate identification of any possible “voluntary/ full capacity” admissions which do not meet the specified criteria for such admissions.

That relevant persons may only be admitted/ continue to reside in relevant facilities which are independently monitored by a State body.

.1 The DSBA considers that the term “under continuous supervision and control” should be defined and references the following definition included in the English and Welsh Law Commission consultation paper: Restrictive care and treatment should include, but should not be limited to, any one of the following: 1 continuous or complete supervision and control 2 the person is not free to leave 3 the person either is not allowed unaccompanied, to leave the premises in which placed including only being allowed to leave with permission or is unable, by reason of physical impairment, to leave those premises unassisted barriers are used to limit the person to particular areas of the premises 5 the person’s actions are controlled, whether or not within the premises, by the application of physical force, the use of restraints or for the purpose of such control the administering of medication – other than in emergency situations 6 any care and treatment that the person ob ects to verbally or physically 7 signi cant restrictions over the person’s diet, clothing or contact with and access to the community and individual relatives, carers or friends including having to ask permission from staff to visit – other than generally applied rules on matters such as visiting hours Persons being dealt with under Parts 1 – 12 of the 201 Act and those under Part 1 should be treated e ually and the legislative provisions be applied consistently. .2.The DSBA suggests that the following apply: Capacity in the first instance to be assessed by an independent assessor. With a process in place to review such assessment within a period of ten to 1 days.

All notifications under the legislation be consistent.

In emergencies a relevant person may be admitted to a relevant facility for a short period of time in order to facilitate an assessment.

Definition/s of an “emergency” or “urgent”

Application and Purpose of this Part

Person’s Capacity to Make a Decision to Live in a Relevant Facility in Advance of an Application to Enter the Relevant Facility 3.1 Do you have any views specific to Head 3?

Response .1 This issue in the first instance will be dependent on the circumstances. Where a uestion of a relevant person being admitted to a relevant facility is being considered, the DSBA proposes that a capacity assessment should take place in any of the following situations: (a) The relevant person re uests a capacity assessment; (b) the relevant person expresses a desire not to be admitted to the relevant facility; (c) the relevant person’s will and preferences are unknown; (d) the person in charge believes there is doubt about the relevant person’s capacity to consent; (e) the relevant person’s decision making assistant, co-decision maker, decision making representative, designated health care representative or attorney re uests a capacity assessment; (f) a person named by the relevant person as a person to be consulted re uests a capacity assessment; (g) a person who has recently cared for the relevant person on an extensive basis to be defined re uests a capacity assessment; (h) an employee of an inspection body re uests a capacity assessment; (i) an officer of the director of decision support re uests a capacity assessment;

It has been a difficult journey for Irish society to right many of the wrongs committed to the most vulnerable persons within our community

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The court did not consider the conduct of a body acting outside its jurisdiction to be “inappropriate” in the sense intended by the definition of bullying

situation to be clearly defined and consideration given to the decision in “PL” and the Mental Health Act, 2001.

All decisions to admit/continue to admit to a relevant facility to be subject to review at least every six months.

Applications to court may be made at any stage of the process. . The DSBA does not support the draft provision which would permit an attorney under a registered power of attorney or a decision-making representative to authorise the deprivation of a person’s liberty.

The DSBA references the review procedures a orded to persons who are the subject of admission/renewal orders under the Mental Health Act, 2001 and the successful implementation of same into systems and procedures of approved centres.

Procedure for Admission of a Relevant Person to a Relevant Facility in Urgent Circumstances 5.1 In subhead (1), what are your views on the proposed circumstances in which an urgent admission can be made?

5.2 In subhead 2(b), should a health professional other than a registered medical practitioner be able to provide medical evidence? If so, what type of healthcare professional? This issue also arises in Head 6(2).

5.3 In subhead (7), who should make the application to court if no one else does so?

Do you have a view on the proposed role of the Director of the Decision Support Service? This issue also arises in Heads 7(6), 7(11) and 8(3).

5.4 Do you have any other views specific to Head 5?

Response .1 See .2 above The relevant person must have been personally examined by a medical professional. .2 The DSBA submits that only a registered medical practitioner should be able to provide medical evidence upon which decisions are made and be re uired to consult relevant specialists where appropriate. . Applications to be made by the relevant person’s family, next of kin or relevant facility and not by the Director of Decision Support Services having regard to the provisions of – of the 201 Act. . The DSBA submits the time limits in the section be shortened. The current draft Heads of Bill proposes detention for up to 2 days without review.

Procedure for Making an Admission Decision 6.1 Is the evidence of one medical expert 14 the Parchment

sufficient?

6.2 Do you have any other views specific to Head 6?

Response .1 The DSBA supports the proposal of at least one medical expert and a healthcare professional; and where appropriate, a relevant medical specialist, would be sufficient. .2 The nature of the health/mental conditions grounding an application for an admission decision should be stated.

The bill should provide that an admission decision shall only take place as a last resort and only if the following conditions are fulfilled: A. There has/have been a capacity assessment/s; B. The relevant person has been a orded the opportunity to provide his/her own independent capacity assessment; C. The capacity assessor has found that the relevant person lacks capacity to decide on whether to enter the relevant facility; D. The relevant facility is the most appropriate available for the relevant person in light of their needs; E. The admission decision is proportionate to the risk of harm involved.

F. Either of the following applies: a. it would have been the relevant person’s will and preference to enter the relevant facility taking account of the principles in section 8 of the Assisted Decision-Making (Capacity) Act 201 ; or b. having regard to the right to liberty, that entry to the relevant facility is necessary for the protection of life of the relevant person, for protection from a serious health threat or for the protection of other persons; G. Consideration be given to the guiding principles including the following: a. The enjoyment of the highest attainable standard of health, with the relevant person’s own understanding of his or her health being given due respect; b. Autonomy and self determination; c. Dignity (there should be a presumption that the relevant person is the person best placed to determine what promotes/compromises his or her own dignity); d. Bodily integrity; e. Least restrictive care.

The DSBA submits that provision should be made for the publication of redacted court decisions made under this part of the Bill.

Persons Living in a Relevant Facility 7.1 In subhead (2), do you have views on how the issue of fluctuating capacity should be addressed?

7.2 In subhead (2), do you have a view on the length of time that would be considered a “short period”? This issue also arises in Heads 7(8), 7(12) and 8(5) 7.3 Do you have any other views specific to Head 7?

Response .1 The DSBA is of the view that if the relevant

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person regained capacity the admission order re uires to be revisited. Heads ( ) to (11) should be replaced with a provision re uiring that if the circumstances change so that the relevant person no longer satisfies the conditions for admission, the admission order should be discharged and arrangements be made to facilitate the new status of the relevant person. .2 The DSBA submits that the “short period” specified in Head (2) and other subheads should be a period of 2 hours.

In the event that Head (11) is retained, the DSBA submits that the two 21-day periods in Head (11) should be shortened to two periods of 1 days.

Transitional Arrangements for Existing Residents on Commencement of this Part 8.1 Do you have any views specific to Head 8?

Response 8.1 The DSBA submits that the 12-month period proposed in Head 8.1 is appropriate.

Whereas the DSBA considers that all persons should be treated e ually including all those currently residing in relevant facilities, the DSBA also appreciates the practicalities involved in transitional arrangements.

Review of Admission Decisions 9.1 Do you have any views specific to Head 9?

Response .1 The DSBA supports the provision of a robust review process including: Six monthly internal reviews; Audited reviews by an appropriate public body to include samples of redacted decisions to admit and continue care; and Court applications may be made at any stage of the process.

Chemical Restraint and Restraint Practices 10.1 Do you have any views specific to Head 10?

Response 10.1 The DSBA supports the prohibition of chemical restraint in Heads 10(1) and (2).

In Head 10( ), guiding principles regarding the ministerial regulations on restraint practices should be specified.

Head 11 , Records to be Kept

11.1 Do you have a view on the types of records that must be kept under this Head?

11.2 Do you have any other views specific to Head 11?

Response 11.1 The DSBA supports Head 11.

11.2 The DSBA submits that provision should be made for the release of the relevant person’s records to any legal representative appointed by the relevant person or for the relevant person in advance of any hearing or review.

The DSBA supports Head 12 and 13.

General Questions 14.1 A number of the Heads - 5(2) (b), 5(3), 5(4), 5(7), 5(8), 7(6), 7(9), 7(11), (8(1) and 8(3) - set down

timeframes within which certain actions must be taken. Do you have a view on any of these proposed timeframes?

14.2 The draft Heads apply to older people, persons with disabilities and people with a mental health illness. In terms of timeframes and in light of the existing provisions of the Mental Health Act 2001, should those with mental health illness be treated differently to others?

14.3 Do you have any other views on the draft provisions?

Response 1 .1 The DSBA has expressed its view on the relevant timeframes provided under the various Heads above.

The Association proposes it should be clarified that any advance healthcare directive prepared by the relevant person continues to apply following the making of an admission order. In addition, the role of any decision-making assistant, co-decision maker, decision-making representative, designated health care representative or attorney will continue to apply.

The DSBA submits that the bill should provide that decisions to admit to a relevant facility may be appealed to a court; and further that a relevant person may also apply to court to challenge continuation in a relevant facility at any time. Access to court for such applications to be within a short timeframe and supported by legal representation. Such legal aid to be provided in a manner consistent with the 201 Act. The DSBA submits that written information to be furnished to the relevant person setting out: (i) The intention to apply for; and (ii) Making of the admission order.

Such information to include the applicant’s details, the basis of the decision and the duration of admission etc. Such information to also be provided in a way that is appropriate to the circumstances of the relevant person.

In addition, written information on reviews and appeals must also be provided together with details of the monitoring body.

1 .2 The protections a orded to persons under the Mental Health Act, 2001 have served to support persons who are the subject of admission/renewal orders under that Act. Relevant persons who may be detained under the provisions of the 201 Act would expect to be a orded the same protections.

1 . Regulations should be “shall” and not “may” to ensure clarity and consistency.

It would be contrary to the ethos of the role of the Director Decision Support Service for the director to make or direct applications for admission orders.

The DSBA supports the provision of a campaign to provide information and education to the public regarding deprivation of liberty safeguards.

The Committee has considered the option of a courtsbased system versus a tribunal/review board system of admissions. The merits and pitfalls of each system have been exhaustively explored by the Committee. It has not been possible for the Committee to reach a consensus opinion in respect of either option.

The DSBA wishes to thank Joan Doran, Chair of the DSBA Mental Health and Capacity Committee and all members of the committee for their hard work and e ort in drafting and finalising the DSBA submission. P the Parchment 15

Post Brexit Advantage Joe O’Malley assesses the position of Ireland as a venue for international arbitration after Brexit

Current Dominance Choosing the seat of arbitration is a crucial component of international trade. The importance of this choice was neatly stated by the US Supreme Court in remen v apata Off-Shore Co 07 U S 1, 13-1 1972 the elimination of all such uncertainties by agreeing in advance on a forum acceptable to both parties is an indispensable element in international trade Undoubtedly, London has been the most dominant choice as the seat for international arbitration taking a share of the market, according to a survey done

by Queen Mary University of London in 201 . English law is the most commonly used law in international business and dispute resolution worldwide, with 2 of the world’s 20 legal jurisdictions using English common law for dispute resolution according to the survey. Reasons for this dominance include: 1. Reputation and experience of English judges, 2. Prevalence of choosing English law as applicable law in international commercial agreements, . Efficacy of remedies available under English law, . Procedural e ectiveness of the English courts, . Independence and impartiality of the judiciary, . English language is the lingua franca of international commerce.

The Brexit Effect While it’s still difficult to make any sense of Brexit, one of the core features of the Brexit vote appears to have been the desire to take back control of UK law and bring an end to the jurisdiction of the Courts of Justice of the European Union when the UK leave the European Union – expected in March 16 the Parchment

201 . Brexit undoubtedly poses a threat to London’s dominance in the area of international arbitration.

Many commentators (particularly those involved in international arbitration in London) contend that Brexit will not impede international arbitration in London. Some even argue that London may become more popular given the ability of English courts to revert to anti-suit injunctions (which the Courts of Justice of the European Union outlawed in Alliance SpA & Others v West Tankers Inc Case C-1 5 07 and London’s continued ability to enforce arbitration awards under the New York Convention which they contend will remain una ected by Brexit.

Close Scrutiny - Enforcement While the arbitration community in London is confident about its future and indeed has good reasons to maintain that confidence, one area of particular importance which may a ect parties choosing London as a seat of arbitration, is the ability to enforce the resulting award or related courts orders against the losing party in respect of its assets outside the jurisdiction of the seat of arbitration.

The UK Ministry of Justice in a survey completed in 201 , noted that the enforcement of a judgment as against the assets of the counter party was a significant and contributing factor in parties determining to choose English law and the English jurisdiction for dispute resolution. However, upon the UK leaving the European Union, it will su er a 1 reduction in the number of jurisdictions with whom it has reciprocal enforcement arrangements.

Traditionally, arbitration awards made in the UK

Summer 2018 dsba.ie Joe O’Malley is partner and head of the Commercial Litigation and Dispute Resolution team at Hayes Solicitors. He is a council member of the DSBA

have been easily converted into an English court judgment pursuant to Section (2), Arbitration Act 1 . This court order could then be easily enforced in other jurisdictions pursuant to international agreements held by the UK with those other jurisdictions.

Within the European Union, the Recast Brussels Regulation (introduced on 10th January 201 ) provides for a very simple, streamlined enforcement procedure whereby a judgment creditor is now only re uired to present a copy of the judgment and a standard form certificate issued by the court which granted the court order. It can then begin whatever enforcement measures are available under the local law of the member state in which it will be automatically recognised and enforceable.

Following completion of the Brexit process and absent any replacement agreement, the UK will be unable to rely upon this regime for recognition and enforcement of its judgments and orders in other member states. But, the UK can continue to rely upon the New York Convention for enforcement of the arbitral award.

While this is a viable mechanism for enforcement, there are a number of important considerations and potential shortcomings: Even though a country may have signed or acceded to the New York Convention, it may not have enacted domestic legislation giving e ect to these obligations, thereby rendering enforcement within the jurisdiction difficult.

Where national legislation is enacted to give e ect to the New York Convention, such legislation can

di er from country to country. For example, the courts of India will only enforce foreign awards if they have been issued by a New York Convention country that has also been notified in India’s official gazette as being a country to which the New York Convention applies.

A country may have its own distinct procedures for enforcement of foreign awards with particular procedural re uirements.

The provisions within the New York Convention are expressed in broad general terms and do not contain definitions of key terms. Further, national courts in di erent countries have reached di ering conclusions about what the same terms mean.

Most particularly, the “public policy” ground for refusing recognition and enforcement has been interpreted in some countries in a very wide fashion, whereby certain states will refuse to enforce awards that seem contrary to the fundamental policy of their laws, or international laws to which they subscribe, or justice and morality as interpreted by their courts.

It is conceivable that if the courts of England and Wales were to resurrect the anti-suit injunction type order in con ict to the Courts of Justice of the European Union in West Tankers, then enforcement of the arbitration award in a member state of the European Union thereafter, could be refused under the New York Convention on the basis that it is contrary to European Union law.

Similarly, in the event that the arbitral award made in London does not have proper regard for mandatory laws of the European Union in

Arbitration

Upon the UK leaving the European Union, it will su er a 1 reduction in the number of jurisdictions with whom it has reciprocal enforcement arrangements

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While there is no question of Dublin replacing London as the forum of first choice for international dispute resolution, Dublin will nonetheless have significant advantages over London post-Brexit with regard to recognition and enforcement particularly within the European Union

circumstances where they may have produced a di erent outcome in the case (on the basis that England and Wales will be no longer be subject to those laws), then that could also be deemed a reason for refusal to recognise and enforce the resulting arbitral award in a European Union member state.

In addition, the English courts have broad powers in support of arbitral proceedings under the Arbitration Act 1 in terms of facilitating the appointment of an arbitral tribunal, ordering interim measures such as injunctive relief, hearing challenges to the validity of any award and upholding the finality of an award. How far such court orders in support of arbitration will be enforceable in other member states and beyond, remains to be seen. Certainly, in the event that such orders are in con ict with provisions of European Union law, then one can see difficulties in relation to the enforcement of such orders within the European Union.

Other Practical Concerns After Brexit, it is unclear as to how or to what extent the UK courts, when called upon to provide support in relation to arbitral proceedings in the UK, will have any proper regard to European Union legal issues arising.

Where the English courts are called upon to support an arbitral process in terms of making a variation to an arbitral award under Section 1, Arbitration Act 1 , enforcement of this varied award may well prove to be imbued with difficulties and not easily enforced in other jurisdictions.

The English courts have also provided very useful assistance to complex international arbitrations under Section , Arbitration Act 1 by determining preliminary points of law or seeking guidance from the European Courts on a point of European Union law. One must seriously doubt whether that can be done post-Brexit. It is generally the case that arbitral tribunals themselves are not permitted to refer a point of law to the Courts of Justice of the European Union for preliminary ruling on the application of European Union law. This may well leave a deficit in relation to resolution of points of European Union law.

One of the great attractions of London as a seat for international arbitration is the availability of highly rated legal specialists often practising in the area of European Union law. It must be acknowledged that there is a real threat to the exodus of such specialists from the UK post-Brexit.

Arbitration in Ireland Most of the factors that commend the English legal system to international arbitration may also be found in Irish law and the Irish courts system. The Irish legal system like its English counterpart, is rooted in common law with much of its statute law re ecting UK statutes. English and Irish case law are regularly cited in each other’s courts. The procedures operated by the Irish courts and the remedies available under Irish law are similarly commercially focused to those which pertain in the UK legal system. It is also of importance that English, the lingua franca of business is the de facto language of the Irish courts system.

Ireland will continue to be a member of the 18 the Parchment

European Union and legal proceedings before the Irish courts continue to enjoy the benefits of the Recast Brussels Regulation and also the Lugano Convention which will provide for: Recognition of the exclusivity of jurisdiction arising out of the parties’ choice of jurisdiction (irrespective of their domicile), The benefit of the lis alibi and pendens rules which prevent the courts of other member states from seeking to assert jurisdiction over the disputes between the parties, The availability of interim protective measures such as merava injunctions, freezing assets pending the outcome of the arbitral process, and The ready, reliable and expeditious enforcement of any court orders made on foot of the arbitral process throughout the European Union without those member states being entitled to look behind the order or to revisit the merits of the dispute.

Ireland has a long history of arbitration, its first Arbitration Act having been passed in 1 8. Article 2 (2) of the Irish Constitution 1 states that Ireland a rms its adherence to the principle of paci c settlement of international disputes by international arbitration or udicial determination . In 1 81, Ireland became a contracting party to the New York Convention (NYC 1 8). In 2010 Ireland adopted a modern Arbitration Act which incorporated the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration (1 8 ).

In this way, Ireland has e ectively modernised its arbitration laws to conform to international commercial arbitration features and practices and it has harmonised its arbitration laws with other modern arbitration countries.

Perhaps most importantly, the Irish Arbitration Act 2010 and the various pronouncements by the superior courts in Ireland clearly demonstrate the minimal power of the courts to intervene in the arbitral process and they exhort and mandate that Irish courts are supportive of the arbitral process. Even prior to the introduction of the 2010 Act, it was stated by the Supreme Court in Ireland in eenan v Shield Insurance Company Limited 19 9 IR 9 that: Arbitration is a signi cant feature of modern commercial life there is an International Institute of Arbitration and the eld of international arbitration is an ever expanding one It ill becomes the courts to show any readiness to interfere in such a process if policy considerations are appropriate, as I believe they are in a matter of this kind, then every such consideration points to the desirability of making an arbitration award nal in every sense of the term This is aptly illustrated with reference to the following important features in the Arbitration Act 2010: In adopting UNCITRAL Model Law, the grounds for setting aside an award in Ireland are limited to those contained in Article where there is incapacity; no proper notice of appointment; the arbitrator exceeding the terms of the submission to arbitrate; the composition of the Arbitral Tribunal not being in accordance with the agreement of the parties; or the award being in con ict with the public policy of the Irish State. On the other hand, Section of the Arbitration Act 1 applicable in England

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and Wales permits an appeal to the English courts on a point of law adding the potential for an additional layer of costs and delay in the arbitral process. For reasons discussed earlier, the difficulties faced by recognition and enforcement of any resulting court order postBrexit adds further complexity to this arrangement.

Under the Arbitration Act 2010, the High Court in Ireland is e ectively a “one-stop shop” when it comes to the main arbitration-related applications with there being no appeal to the Court of Appeal or Supreme Court. Again, this contrasts with the potential for an appeal in England and Wales for many arbitrationrelated applications to the Court of Appeal and then on to the Supreme Court (formerly the House of Lords).

The Arbitration Act 2010 provides that the parties to an arbitration agreement choosing Ireland as the seat of arbitration may make such provision as to costs as they see fit, whereas the Arbitration Act 1 in England and Wales provides that any agreement whereby a party is to pay the whole or part of the costs “in any event” is void unless it has been agreed after the dispute has arisen. It is submitted that the position which prevails in Ireland in this regard provides for greater respect to the autonomy of the parties.

Concluding Remarks In broad terms, there are two elements for consideration in deciding upon the seat for international arbitration.

The first involves consideration of the national legal system and arbitration law and the attitude of the courts within that country to arbitration.

It’s arguable that the advent of Brexit brings uncertainty to London’s continued dominance as a forum for international arbitration, particularly having regard to the enforceability of awards where the dispute has some European Union legal dimension.

The second element involves a consideration of non-legal factors such as logistics, neutrality, convenience and familiarity and the ualifications of arbitrators and practitioners. While this element is more subjective, it is common case that being an English-speaking, common law jurisdiction remaining within the European Union with a well-respected legal system with many similarities to the UK legal system, Dublin as a seat for international arbitration would represent the closest comparator to London.

In the final analysis, while there is no uestion of Dublin replacing London as the forum of first choice for international dispute resolution, Dublin will nonetheless have significant advantages over London post-Brexit with regard to recognition and enforcement, particularly within the European Union. In this way, Dublin may not so much compete with, but rather complement London as a forum for international arbitration. P the Parchment 19

Revenue Audit of your Practice Practically every member of the DSBA has been the subject of or been observed in the course of their work as part of a Law Society inspection. However, a Revenue audit is a di erent kettle of fish. Susan Martin gives insight into her personal experience and provides useful advice

I

have been in business on my own since 200 , so I was probably overdue a Revenue audit when I got the envelope with the harp on it in early December 201 . Cue much weeping, gnashing of teeth, googling “what to do for a revenue audit” and moaning about it in the pub. One of my pals, fed up of hearing about it for the umpteenth time, said “Sue, treat it as a free compliance check by the State, change the record and get a round in”.

Having reorganised my thoughts accordingly, I got down to the business of preparing for the big day The correspondence from Revenue indicated that the audit would take place in January (about four weeks away) over a period of up to four days and also indicated which taxes would be reviewed. Such audits are authorised in accordance with Revenue’s powers pursuant to Part of the Taxes Consolidation Act 1 as amended. In my case it was all taxes for the previous two years. I rang Revenue to confirm that I would be available on the dates allocated and asked about the procedure involved. They told me that I would be visited by a Revenue official and

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possibly a second member of revenue sta . I asked if they could send over a list of documents that the inspector would require and they very kindly sent over a list, some of which did not apply as it related to corporation taxes.

In preparation for the audit I checked the primary legislation (Taxes Consolidation Act 1 ) and reviewed the Revenue Commissioner’s guide to being audited. This document very usefully gives a definition of a Revenue audit which is as follows: A Revenue audit’ is an examination of; • a tax return • a declaration of liability or a repayment claim • a statement of liability to stamp duty • the compliance of a person with tax and duty legislation.

The tax payer has a responsibility to keep adequate records to support the taxes returned (Section 88 Taxes Consolidation Act 1 ) and accordingly, the Revenue audit measures the records against the returns. I decided to look at each of the tax headings under which I had made returns in order to assess

Summer 2018 dsba.ie Susan Martin is principal of Martin Solicitors. She is a council member of the DSBA Executive

what paperwork I should get out to vouch.

1. VAT AT charged by solicitors on the provision of legal services is 2 (unless you are running a co ee shop on the side).The calculation of the AT is measured on the AT charged on invoices less the AT paid out on business expenses.

In order to vouch this I provided the Revenue auditor with: (a) Costs journals for each month of the period being audited. copies of each invoice issued . (b) The creditors’ folders for each month of the period being audited. copies of each invoice paid . (c) A printout of the AT returns for each year. (d) The che ue stubs for the office bank account. (e) The office bank account statements for the entire period being audited. (f) Bank reconciliation statements for the office account. (g) Che ue journals for each month of the period being audited.

Practice Management

(h) The PSWT folder with vouchers from Legal Aid Board/Criminal Legal Aid. 2. Income Tax In order to prepare for the income tax part of the audit, I provided the Revenue auditor with the following: (a) Annual report from my own tax consultant for each year of the period being audited. (b) A copy of each income tax return. (c) Costs journals for each month of the period being audited. (d) The creditors’ folders for each month. (e) The PAYE/PRSI folder for that period. (f) A list of outlays paid out during that time. (g) The client account statements. (h) The office account statements. (i) Bank reconciliation statements for both accounts. (j) Che ue journals for the office account. (k) The client account che ue book stubs. (l) The office account che ue book stubs. (m)My personal bank statements. (n) My personal credit card statements.

The tax payer has a responsibility to keep adequate records to support the taxes returned

the Parchment 21

Revenue gives the taxpayer the opportunity of disclosing any difficulty or under payment of tax before the audit begins (o) The PSWT folder with vouchers from Legal Aid Board/Criminal Legal Aid. (p) Petty cash folders for each month. . PAYE/PRSI (a) PAYE/PRSI folder with copies of P 0s, P s, P 0s and copy payslips for each member of sta during the relevant period. (b) Employee register with names and addresses, dates of birth, PPSN and employment details of all sta employed during the relevant period. . There was no stamp duty paid by me personally during that period. If there had been I would have had the following ready: (a) Copy contract for sale (b) Copy deed of transfer (c) Copy stamp duty return. . What is re uired for a capital gains tax return in my view would be: (a) The return made to Revenue (b) A sheet showing the workings of the tax paid (c) Copy contract showing the purchase price paid at the time (d) Invoices or receipts for any expenditure on the item (e) Copy contract for sale. . For capital ac uisition taxes the following would be re uired: (a) The details of the gift/inheritance (b) The consideration if any paid, and a record of this (c) A sheet showing the workings of the tax paid (d) The tax return (e) ouchers for any expenditure (f) aluations (if applicable) . I had paid LPT during the period so for this I had ready: (a) Details of the registration of the property (b) A printout of the LPT history (c) A copy of the valuation I obtained on the property at the time LPT began.

This took some work to put together and I made separate folders for each category of items. Most of these items, e.g. the costs journals and the creditor invoices are already kept in folders. We did our own compliance check in the office – for example, we took the office bank statements out and ensured that there were correspondence invoices for payments out – there were a couple missing and we contacted our suppliers who helpfully provided those missing. This process took us about a week. At that point I notified my tax consultants/accountants and asked them for a pre-audit check.

They sent out their in-house tax expert and she carried out a mini audit which identified some small 22 the Parchment

deficiencies in vouchers which we rectified.

Finally, the day arrived when Revenue called. I didn’t ask my accountant to be present as I was happy enough about the preparations carried out. On re ection, I think that it would be best to have the accountant there if one anticipated an issue with the accounts, but if everything is in order there should be no need to take on this additional expense. I asked for and received without demur a copy of the official’s photo ID and a letter confirming that they had been appointed to audit. Prior to the audit beginning, the official asked if there was any disclosure I wanted to make. Revenue gives the taxpayer the opportunity of disclosing any difficulty or under payment of tax before the audit begins. This is absolutely standard and part of the procedure.

Moving on from that there were some preliminary uestions which I expected (confirmation of the bank accounts held by the business) and which I didn’t (the registration of my car). Rather than stand on ceremony or uery the value of the uestions I co-operated fully and gave answers freely. It turns out that co-operation is valued and indeed expected by the Revenue Commissioners during an audit. It can help mitigate penalties and help achieve a better outcome if an underpayment of tax is found during an audit.

The Revenue official then spent some time going through the various documents. After some hours, the official had some ueries, all but three of which I answered. For the other ueries which I could not answer, I agreed that I would contact my accountant and get assistance with the ueries as they appeared to be technical in nature. He asked if I had any ueries and I asked the basis on which I had been selected. He explained that about 0 of audit subjects are selected using technology or other markers such as failure to make returns. However, there are some taxpayers selected randomly based on their PPSN every year so that all taxpayers understand that they may be selected. He thanked me for the co-operation and left the same day. We sent on the additional information when received from the accountant. A few weeks later I received correspondence from the Revenue Commissioners confirming that the audit had revealed no additional sums due in tax, which is Revenue speak for a clean bill of health In summary, if selected for a Revenue audit these are the steps to be taken: Check the date and time, the location, type of taxes and the period being audited; Ask for more time as soon as the notification of audit is received if needed – e.g. pressure of work or absence on holiday; • Prepare the papers needed in clearly labelled folders neatly with indexes and tabbed if possible; Present the papers in a logical and clear manner; Consider engaging your accountants to carry out a pre-audit inspection; If there is an under payment of tax you know about, use the opportunity to make a clean breast of the matter and arrange for a declaration and payment of the tax to be made immediately; Co-operate fully and answer all ueries. P

Annual DSBA Book Awards The prestigious fifth annual DSBA Book Awards ceremony celebrated the best of legal writing over the past 12 months. The distinguished event took place as part of the DSBA Midsummer Party at the Conrad Hotel, Earlsfort Terrace on Friday 22nd June 2018. The Awards ceremony was conducted

by Robert Ryan, current DSBA President, and Keith Walsh former DSBA President. Mr Justice Gerard Hogan of the Court of Appeal was guest of honour and presented the winners with their much-deserved awards

I

L-R: Jennifer Simpson, Bloomsbury Professional; Sinead Kearney, Byrne Wallace Solicitors sponsors; Mr Justice Gerard Hogan and winning author, Marc de Blacam 24 the Parchment

n his speech, Mr. Justice Hogan paid tribute to each of the book award nominees and praised them for their work and contribution to the law.

The impressive shortlist of authors highlighted the breadth of talent of legal writing and the judges found it a difficult task to pick a winner in each of the three categories which were as follows: • Law Book of the Year Award, sponsored by ByrneWallace Solicitors.

• Practical Law Book of the Year Award, sponsored by Peter Fitzpatrick & Company Cost Accountants; and • Outstanding Contribution to the Law, sponsored by Law Society Skillnet.

In an impressive and crowded field of nominees for Law Book of the Year - which included Information and Communications Technology Law in Ireland (Ronan Kennedy and Maria Helen Murphy/Clarus Press), Non-Fatal Offences Against the Person: Law and Practice (Eamonn O’Moore/Clarus Press), Disability Law and Policy: An Analysis of the UN Convention (Charles O’Mahony and Gerard Quinn/Clarus Press), Juries in Ireland: Laypersons and Law in the Long Nineteenth Century (Niamh Howlin/Four Courts Press), Contract Law 2nd Edition (Paul McDermott and James McDermott/Bloomsbury Professional), Judicial Review 3rd Edition (Mark de Blacam/Bloomsbury Professional), Employment Law 2nd Edition (Ailbhe Murphy and Maeve Regan/Bloomsbury Professional), Redmond on Dismissal Law (Desmond Ryan/ Bloomsbury Professional), Medical Law in Ireland 3rd Edition (Simon Mills and Andrea Mulligan/Bloomsbury Professional) and Equity and the Law of Trusts 3rd Edition (Ronan Keane/Bloomsbury Professional).

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Photography: Michael Finn

L-R: Stephen Fitzpatrick, Peter Fitzpatrick Legal Cost Accountants - sponsor; Mr Justice Gerard Hogan; Jennifer Simpson, Bloomsbury Professional; award winning author Brian Spierin; Robert Ryan, DSBA President and Keith Walsh

The winner of the DSBA Law Book of the Year went to Mark de Blacam for his book, Judicial Review, 3rd Edition. The “JR Bible” was a very worthy winner and Mark expressed his surprise and delighted at being selected as the winner.

The Practical Law Book of the Year Award was sponsored by Peter Fitzpatrick & Company Cost Accountants and the nominees included The Construction of Wills, 2nd Edition (Dr Albert Keating/ Clarus Press); The Annual Licensing Court – The Essential 21st Century Guide (Constance Cassidy and Tim Bracken/Clarus Press); Social and Economic Rights in Ireland (Claire-Michelle Smyth/Clarus Press); The Court of Appeal – A Guide (Kieron Wood/ Clarus Press); The Land & Conveyancing Law Reform Acts – Annotations and Commentary, 2nd Edition (JCW Wylie/Bloomsbury Professional); Succession Act 1965 and Related Legislation – A Commentary (Brian Spierin/ Bloomsbury Professional); Arthur Cox Employment Yearbook 2016 (Arthur Cox Employment Law Group/Bloomsbury Professional) and Bloomsbury Professional’s Company Law Guide 2017 (Tom Courtney and Una Curtis/Bloomsbury Professional).

The judges’ choice for the winner of the Practical Law Book of the Year Award was Succession Act 1965 and Related Legislation – A Commentary by Brian Spierin.

The Outstanding Contribution to Legal Scholarship Award – sponsored by Law Society Skillnet was awarded to both Brian Gallagher and Alan Shatter for their distinguished contributions to the law over many years. Both Alan and Brian spoke about their years in practice and as a team and thanked all concerned for honouring them with this award.

L-R: Brian Gallagher; Mr Justice Gerard Hogan; Alan Shatter; Brendan Twomey Law Society Skillnet - sponsor; Keith Walsh

Brian Spierin; Constance Cassidy; Eddie Walsh the Parchment 25

Alan Shatter and Brian Gallagher

Ken Murphy and Chan Shi

Jane Lehane; Diego Gallagher; Alan Shatter

Mr Justice Gerard Hogan and Robert Ryan, DSBA President

Mr. Justice Gerard Hogan; Robert Ryan, DSBA President and Keith Walsh on stage at the DSBA Book Awards 26 the Parchment

The Annual DSBA Book Awards were held in conjunction with the DSBA Mid-Summer Party. The event was tremendous success and a great night was had by everyone in attendance. Our congratulations to each author shortlisted and to each of the three worthy winners. Our thanks to our sponsors ByrneWallace Solicitors, Peter Fitzpatrick & Company Cost Accountants and Law Society Skillnet - without whom the event would not have been possible. P

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Recommendations on the Future Education of Solicitors The Dublin Solicitors’ Bar Association recently made a detailed submission to the Legal Service Regulatory Authority (LSRA) as part of a public consultation. A report is due to be submitted by the LSRA to the Minister for Justice and Equality on the education and training arrangements in the State for legal practitioners

T

he DSBA is a representative and educational body for solicitors and does not have any regulatory function in relation to solicitors in Ireland. It is the largest independent provider of continuous professional development courses for solicitors in Ireland, averaging three CPD seminars per month as well as numerous smaller events.

The DSBA is thus uniquely placed to provide a perspective on the education and training arrangements in the State for solicitors as legal practitioners.

For the purposes of our submission, the DSBA has sought the views of members through the auspices of the DSBA Council; its Younger Members’ Committee and of a number of other parties including an associate professor of law in UCD with a particular interest in the subject of legal education In Ireland.

At the outset may we express our support for the provision of legal education in Ireland which respects and underpins the professional principles set out in in Section 1 ( ) of the Legal Services Regulation Act 201 .

Primary Legal Education The DSBA is an advocate of solicitors having a degree in law (or law coupled with other suitable topics such as business), as providing the basic but essential grounding re uired for entry to professional practice. In that regard we understand that the holding of a primary or secondary degree in law in other EU jurisdictions is typically a pre-condition to entry into the legal profession in such jurisdictions.

As matters stand however, there’s no re uirement for students who wish to become solicitors to undertake a primary degree in law, given that the Law Society’s solicitors’ entrance exam (called Final Examination Part 1, or FE1) is open to all persons whether with or without a university degree, whether having a law 28 the Parchment

degree or non-law degree and whether or not having undertaken any prior conversion course in the law before sitting that exam.

Accordingly it is timely that as part of the Authority’s education review some consideration is given to attributing a substantive value to having a university or other primary or secondary degree in law, and what credit(s) might be given to the holders of such a degree, in respect of the FE1 exam. At present the only ‘credit’ provided is an exemption from holders of any university degree in Ireland from having to sit the Law Society’s solicitors’ preliminary exam – which has nothing to do with law, and goes only to testing knowledge of English and the Irish Government as well as general knowledge.

If it is viewed as appropriate that the FE1 exam (whether as is or as re-modelled in the future) should remain open to be undertaken by anyone who (having passed or is exempted from the preliminary exam) chooses to do so whether or not they have any background in the study of the law, then the DSBA advocates the introduction of a credit system for holders of a law degree (primary or secondary) or a law conversion degree or diploma from appropriate educational bodies duly certified for such purposes by the Law Society in relation to the exams to be undertaken for FE1. If no such credit is provided, then in e ect one e uates a four-year law degree course (such as provided in TCD and UCD) with a one year law conversion course (in preparation for the FE1 exam) o ered by non-university educational bodies.

The certification’ of the educational bodies concerned should include and thus allow (subject to appropriate standards and syllabi) for credit in the form of exemption of certain law degree modules from corresponding FE1 exam modules where a certain standard has been achieved by the law student

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concerned in or during his/her law degree.

The DSBA also advocates more structured cooperation between the solicitors’ profession (through its representative bodies) and law degree providers (such as through the heads of law schools’ networks/ forum) to assist in having law syllabi streamlined rather more towards the practice of law by solicitors.

In particular we advocate the increased adoption of a “clinical education” approach by universities to help develop the skills that trainees require to exhibit as trainee solicitors (as to which please refer to the paper titled as: Legal Education in Ireland: A Paradigm Shift to the Practical, 2011).

The introduction of a more “clinical education” approach may very well in turn increase the attractiveness of undertaking a law degree, particularly from the perspective of the availability of trainee contracts from law firms. In that regard, for example, the recent introduction by UCD Law Faculty of a dedicated legal skills and drafting module across legal topics for all first year law degree students (as a compulsory re uirement) may be regarded as a very progressive step in university-based clinical education in Ireland.

Another good reason to examine streamlining is to ensure that so far as practicable, law school students cover in their degrees the bulk of the syllabus required to sit the FE1 exam. Our comments above should not be taken to attribute a lesser value to non-law degrees or diplomas, but rather seeking to attribute a more substantive value from the legal education obtained by undertaking a law degree in Ireland.

Final Examination In order to undertake a traineeship with a solicitor, the first re uirement (apart from the preliminary exam mentioned above) is for the student to sit and pass the FE1 exam set by the Law Society of Ireland. This involves sitting and passing eight basic legal topics as follows: company law; constitutional law; law of contract; criminal law; European Union law; e uity; real property and law of tort.

The FE1 exam takes place twice a year (spring and autumn) at a cost of €10 per examination (€8 0 in aggregate). The exams can be taken at intervals and thus students typically take a set of four exams at a time (which means all can be sat in one year if the student so re uires).

The syllabus for the FE1 exam is well structured and practically orientated towards becoming a solicitor.

The exam is a high standard, professional orientated test, the uality of which is supported by not being conducted on an open book’ basis.

We would however suggest that the present review gives consideration as to whether in the interests of all concerned, not least the recipients of legal services, one would be better served by the introduction of a mandatory pre FE1 exam re uirement as to having undertaken an appropriate study of Irish law with a certified body over a period of at least two years. This may of course be contrasted with the three to four years re uired to achieve a university law degree, but at least would go some way to ensuring that those who sit

the FE1 exam have obtained a good grounding in Irish law across all its aspects.

We would also suggest that the Authority considers as to whether, in the interests of reducing the overall time period required to obtain the requisite legal education to practise as a solicitor, the FE1 exam would be open to being sat by law students in their third or fourth year of study for their degree (thus facilitating, if successful in the FE1 exam, an earlier start to their entry on to the PPCI course). The present structure where typically, the FEI exam is taken in two or more sittings by a student can operate to materially delay the start of such student’s training as a solicitor – albeit passing the FEI exam is of course down to each student.

Training Contract Having passed the FE1 exam, a person becomes thereby eligible to apply for a place on the Law Society Professional Practice Course 1 (PPCI).

However, as a pre-condition to taking up a place, such person must have secured a training contract with a practising solicitor of five years or more standing. This re uirement can be very difficult for students to meet so early in their career, and can also be very difficult for law firms to be able (apart from exam results) to make an informed determination of the skills and abilities of the person concerned. The re uirement to obtain a training contract is a precondition, but yet is only re uired to be commenced within 1 days after completion of the PPCI course.

One might wonder therefore why such a pre-condition exists at least as a mandatory requirement rather than an optional one. It is also the case that once a training contract has been signed up to that, the training solicitor becomes liable under employment law to pay the salary of the trainee notwithstanding their non-availability for six months from date of commencement of the PPC1 course.

It may also be noted that the training contract has two legal components to it, namely the indenture of traineeship and an employment contract. It is not the

Another good reason to examine streamlining is to ensure that so far as practicable, law school students cover in their degrees the bulk of the syllabus required to sit the FE1 exam

the Parchment 29

The DSBA questions whether the present PPC1 course delivers for both law firms and students in the manner or to the standard re uired, at least from a “clinical education” perspective.

Learning by rote is no substitute for actual learning

case that the component parts are mutually harmonious as they impose professional obligations and employer obligations respectively. In e ect the trainee who holds a training contract can be immune from any form of sanction or removal by the training solicitor for nonperformance by the trainee solicitor, notwithstanding what would otherwise be the case under employment law. We would suggest that the component parts and the obligations that they impose both on solicitors and trainees be considered as part of the education review by the Authority.

Following completion of the PPCI course a person must then commence their training with their contracted solicitor for a period of 11 months. The training solicitor is obliged over the course of the traineeship to ensure that the trainee obtains knowledge of certain basic practice areas to include: conveyancing, litigation, probate, and one other to be chosen. In turn, that requires a trainee to be moved regularly within a law firm in order to gain such experience whether or not that law firm provides services in all of the basic areas.

This is not necessarily objectionable (as being necessary to ensure an all-round grounding in the practice of law) but it may very well serve to substantially limit the experience gained by the trainee and of less usefulness to the training solicitor.

Whilst 11 months might appear to be a reasonable period of time, in practice it is generally too short a time period to provide the requisite practice experience that a trainee solicitor needs to obtain; and makes it more difficult for the training solicitor and his/her firm to adequately plan for the provision of the required experience and running of the firm’s practice.

PPCI PPCI is a full-time training course that runs from September to March which is held out to be practiceoriented with instruction given mainly by practising solicitors and Law Society sta . Students are assessed through continuous assessment and end-of-course examinations.

The following are the subjects covered: foundation; course applied land law; probate and tax; business law; litigation (civil and criminal); legal practice Irish (LPI); skills - civil and criminal advocacy; interviewing and advising; legal research; legal presentation; skills; legal writing and drafting; negotiation and professional development.

The provision of the PPC1 course is not subject to any published standards or monitoring of standards as to the adequacy or otherwise of the teaching or content of the subjects outlined above. The DSBA advocates the introduction of monitoring as being essential towards ensuring the delivery to law firms of trainees who have the re uisite practice and knowledge-based skills to make them immediately useful on commencement of their in-law firm training contract. In circumstances where learning and exams in PPC1 is through open book and online mediums, and with limited focus on the actual practice as a solicitor across the spectrum of activities/business, the DSBA uestions whether the present PPC1 course delivers for both law firms and students in the manner or to the standard re uired, at 30 the Parchment

least from a “clinical education” perspective. Learning by rote is no substitute for actual learning.

For example to take one of the basic and essential skills re uired of a solicitor – the drafting of a range of documents to include letters, agreements, declarations, notices etc. It is essential that those drafting skills are embedded into students of the PPCI course across each legal topic being studied, and not just as a simple module in its own right.

Stronger emphasis is re uired in the PPC1 module on development of the core skills of drafting, negotiation and advocacy across all modules, as well as instilling in students an acute understanding of ethics and undertakings.

The feedback we received from recently ualified solicitors is that there was insufficient focus in the PPCI module on the practical aspects of being a solicitor. This includes advocacy, the courts system, interviewing clients, letter writing, drafting of deeds, conducting meetings, making presentations, understanding fee income and billing, etc.

We observe that the syllabus of the PPCI course has not been the subject of consultation with training solicitors or generally law firms at large. It is odd that the solicitors and law firms who provide what is described as “the core legal training” of a solicitor have not been consulted at large by the Law Society as provider of the PPCI course, notwithstanding its central role in the process of the legal education of solicitors.

The cost of the PPCI Course at €8, 00 (circa €1 ,000 before income tax) is onerous for both trainees (if paid by themselves) or law firms (if paid by them). One might expect that sort of cost for a yearlong course, not a six-month course. For most smaller to medium-sized law firms a decision whether to commit to taking on one or more trainees is materially in uenced by the level of PPCI fees coupled with the mandatory salary that must be paid to a trainee undertaking that course. The DSBA suggests that the cost of PPCI be reviewed as part of the study to evaluate whether such a cost acts as an inhibitor to entry into the solicitors’ profession in Ireland, and if so whether justified.

To provide support for students who do not have the means to discharge the cost of PPC1, one might recommend that any surplus funds arising from operation of the Law Society Education School (to year end 201 , being circa €2 0,000) be applied as bursary grant funding targeted at poorer students who take up training contracts with small law firms.

This may serve to lessen the financial obligations on small firms and in turn encourage more widespread availability of trainee solicitor positions.

PPCII After 11 months of the in-office training period post PPC1, the trainee returns to the law school to attend PPCII which usually begins in April and runs for 11 weeks inclusive of examinations. The following are the compulsory subjects covered on the PPCII: professional practice; conduct and management (PPCM); family and child law and employment law.

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There’s also a range of elective choices: advanced civil litigation; advanced legal practice Irish; banking law; commercial and complex property transactions; commercial contracts; corporate transactions; insolvency; medical law and litigation; non-adversarial dispute resolution; technology and intellectual property law syllabus; time, costs, skills.

The PPCII course fees are € , 00 (or circa € , 00 before income tax). Our observations on PPC1 above apply e ually to PPC11. In addition to our observations above, we suggest the following: 1) That the PPCII course syllabus is structured to deliver in terms of skills and knowledge, trainees who should be fully educated in the key practice areas of litigation, probate and in their respective elective subjects, to a standard almost ready to commence practice as a solicitor in their own right.

To give two examples - in property matters one would expect the trainee to have a detailed knowledge of the rules of the Property Registration Authority of Ireland and of all aspects pertaining to property transactions; in litigation matters one would expect the trainee to have a detailed knowledge of the rules of the superior courts and of all the forms required in that regard in relation to legal proceedings. In both cases one would expect the trainee to have the skill and ability to draft, without much correction re uired, basic legal documents as well as day-to-day correspondence.

2) That the PPC11 course, in its elective subjects, be divided between (a) topics re uired by general practitioners and (b) topics re uired by larger or more specialist firms.

The feedback we received from recently ualified solicitors is that there was insufficient focus in the PPC11 module on the practical aspects of being a solicitor; and that family aw should be optional. ) That the PPCII examination be practice orientated and non-open book so far as practicable.

Having completed PPCII the trainee must return to the office of the training solicitor and complete the outstanding period of time – ten months if the trainee has not gained credit of work done prior to PPCI and six months if credit has been obtained.

PPCI & PPCII While there may be arguments for and against, the DSBA is of the view that the Authority in its education review considers the possibility of the upfront loading of the professional training requirement in advance of in-office training, and accordingly to having a combination of PPCI & PPCII into a one all in’ up to nine-month course with two modules similar to PPCI / PPCII. It could be proceeded by a two-month practice induction training in the office of the training solicitor, to give the trainee a perspective on what’s required to be learned on the training course.

A combined course would have the merit of uninterrupted in-office training over the re uisite period and thus be more beneficial and cost e ective to trainees and law firms alike.

Whatever the outcome of the review, it is essential that structures are put in place to regularly monitor

and adapt the modules for the education of trainee solicitors, the subjects on each syllabus, the optional and subject electives for each syllabus, and the way in which subjects are taught – to ensure those modules deliver on the business and practice needs of Irish law firms and better prepare trainee solicitors for work.

Finally, as regards the provision of PPCI and PPC11 courses by the Law Society we currently hold the view that the Law Society should remain the sole provider.

This is on the assumption that the Law Society becomes subject to appropriate monitored professional legal educational standards which are verified as fit for purpose; and where the structure and content of the courses is consulted upon with the solicitors’ profession at large on a periodic basis.

Recommendations 1. To attribute greater value/credit to the law degree as part of legal education training.

2. To retain the FE1 exam but permit for law degree students early sitting and subject credits for degree/FE1 exam duplication. . To consider the introduction of a pre FEI exam requirement as to having undertaken an appropriate study of Irish law for up to two years with a body certified by the Law Society. . To continue with the provision by the Law Society of the PPCI and PPC2 courses, subject to monitored standards and cost evaluations. . To consider combining the PPCI and PPCII into one course, to run continuously for six to nine months. . To review the training contract make up (in its two component elements) and its suitability to legal education and practice re uirements. . To make CPD courses subject to appropriate standards and evaluation by the Authority.

8. To encourage closer links between legal education providers and solicitor representative bodies to discuss legal education training with reference to core legal subjects and legal skills. . To ensure the curriculum for PPCI and PPC2 is more practice oriented and taught in a manner which provides trainee solicitors with the essential skills and knowledge re uired for their practice as solicitors.

10. To ensure that the curriculum for PPCI and PPC2 is made subject to periodic consultation with the solicitors’ profession, and responsive to the needs of solicitors’ practices.

11. To divide the elective topics on the PPC11 course into (a) subjects re uired by general practitioners, and (b) subjects re uired by larger or specialist firms.

12. To ensure that emerging trends and needs in legal education and training (e.g. as to legal analytics, legal technologies and legal services online) are considered periodically by the Law Society, and curriculum adjustments made as appropriate to training courses.

1 . To ensure that the “open book” approach to examination of knowledge and skills on PPCI and PPC2 does not predominate the method of course examination.

P

Members of the DSBA Legal Services Regulation taskforce are Robert Ryan Chair , Greg Ryan, Tony O’Sullivan, oe O’Malley, iego Gallagher and eith Walsh the Parchment 31

32 the Parchment

Summer 2018 dsba.ie Gerry O’Connell is the chairman of the DSBA Parchment Committee and an associate in Doherty Ryan & Associates

Cross Examination

Great Expectations Gerry O’Connell cross examines well known and courageous Dublin 2 solicitor Ken Smyth

F

or one week in September 2000, Ken Smyth, solicitor was the number one news story across all organs of the Irish media.

His office had been broken into three times over the previous six weeks, it was suspected that his home telephone line was being tapped, he was pretty certain his office was bugged and in an unprecedented move the Law Society had issued a statement formally calling for a response from the then Garda Commissioner for what the Society termed a “deeply sinister invasion of the constitutionally protected right to privileged communication The lawyer was clearly in the midst of a tempest whipped up by his courageous and relentless pursuit of justice for a Donegal family who have since become household names and whose life experience represents perhaps the darkest chapter of

My uncle was the late John . Kelly who was a solicitor and coroner for Cavan and my other great in uence was Dickens!

Garda corruption in the history of the State.

Ken Smyth cuts an unlikely figure for someone whose “proudest achievement in the law” was his work leading to the establishment of the Morris Tribunal in 2002. A selfconfessed bibliophile, Ken’s genial demeanour and unfailingly polite manner masks a lifetime of hard earned experience where “serendipity played its part” to lead the Fitzwilliam Street based lawyer into a career franked with many notable achievements.

“When the Minister of Education (John Wilson) came to our house when I was 11 he asked me what I wanted to be, I said a lawyer’, he said what side’ I said a solicitor’,” begins Ken. “My uncle was the late John . Kelly who was a solicitor and coroner for Cavan and my other great in uence was Dickens ” The Dickensian in uence is not surprising as lawyers appear as characters in 11 of the Parchment 33

The pressure was immense, I remember on one occasion myself and my wife being followed by a car from our hotel in Donegal town, we ended up going up every boreen in the Rosses practically and still were followed Dickens’ 1 novels and I’m pretty sure Ken has devoured the complete works, (he tells me as an aside he is currently 0 books into the complete works of Trollope ) “I remember reading avid Copper eld as a child and wondering was there such a book as Tidd’s Practice and whether it was possible for someone to make a living from something that went on as long as Jarndyce v Jarndyce (the fictional court case in Bleak House which drags on for decades).”

When I gently tease him by suggesting that the Dickensian lawyer he most resembles is perhaps Mr. Jaggers (from Great Expectations) Ken uips in reply: “well I hope I’m not a Uriah Heep anyway”.

There is a serious point to be made however in all of these trips down “literary lane”. Ken Smyth firmly subscribes to the view that the law can and should be “an agent for good in society” and to paraphrase Charles Dickens “it is a bulwark against the blacking house”.

School was Belvedere College, followed by four years in Trinity College, a very di erent place in the early 1 80s than it is today, Ken surmises. “Four years of enjoyment” Ken recalls being taught by two former Presidents (Mary Robinson and Mary McAleese), the anti-apartheid activist Kader Asmal and the renowned British legal scholar and legal historian, R.F. . Heuston.

Apprenticed to Eugene F. Collins, “a fine firm that I’ve a huge amount of time for where I got exposure to every possible area of practice,” Ken acknowledges. When asked whether any particular memory stands out from his apprenticeships he recalls running a licensing application on behalf of the Freemasons. “I used to enjoy turning up at the old Court number in the Four Courts which was then a District Court and when the Masons’ application would be called on the list, the entire court would turn around to see who was making the application ” As the economic recession of the 1 80s lingered on Ken like hundreds of other newly ualified Dublin lawyers, considered a move to London. He remained however in Dublin and joined Binchys Solicitors where he spent 18 years as a solicitor and partner.

34 the Parchment

Working in litigation with Binchys saw Ken acting in a number of high-profile cases through the 1 0s and onwards, one more noteworthy than the other, truth be told The leading passing o case of Gabicci v Dunnes Stores Ltd is a good place to start.

Ken picks up the story. “Everything about Gabicci was interesting and the outcome was interesting. Our client was Gabicci who sold high- uality casual shirts and jumpers (immortalised on screen in the 1 80s as the casual shirt of choice for one Derek Del Boy Trotter’ the star in the BBC comedy Only Fools and Horses).

“The client was receiving complaints from drapers across the country alleging that we were selling the same product at low cost through Dunnes Stores.” A sting operation on the Italian-based manufacturers in a plot perhaps worthy of Trotters Independent Trading gave Ken’s clients enough evidence to commence a claim in the High Court for passing o . But as is often the case, the choice of trial judge was pivotal.

“The case couldn’t have come on before a better judge than Miss Justice Mella Carroll, as I didn’t hear until I read her obituary that she used to make Communion dresses for her nieces. So in High Court number you had two racks of clothes on either side of the courtroom – one Gabicci and one St Bernard. Judge Carroll came down from the bench and inspected each garment on each rack trying to find di erences in warp, weft and colour ways – tailoring terms that lawyers know little to nothing about”. The court found in favour of Gabicci.

Another memorable case has become known as the “Ryanair Millionth Passenger Case” where Ken was for the airline (“very firm but very fair clients”) the result was that the High Court awarded compensation to Ryanair s millionth passenger for breach of contract. One noteworthy feature of the hearing was the playing of 1 minutes of the “raw” (unbroadcast) RTE News footage of the ight in 1 88 which resulted in the millionth passenger award. Ken found himself in a darkened courtroom viewing news footage before Mr Justice Peter Kelly. “A di erent Ireland” is how Ken

diplomatically puts the scenes witnessed on screen.

Between clothes racks and cinema screenings, the Courts Service (or its then predecessor) must have been wondering what next to expect from a case ran by Ken Smyth. A phone call to the office from a private investigator was to change the course of Ken’s career.

“It was th February 1 ; I took a call from a private investigator called Billy Flynn (now deceased) who told me that at 2pm today a man called Frank McBrearty, will call you. Will you listen to him, it’ll sound a bit mad, but please listen to him. I did listen to him and 21 years later I still have the handwritten notes from that call.

“The picture that was being painted sounded to me like a conspiracy theory gone mad. There was talk of harassment, how the man and his family were being framed for murder and how a reign of terror was being visited upon himself and his extended family.”

Ken travelled to Donegal and met the McBrearty family, when their original case started to be backed up by concrete evidence of extortion and harassment and when certain persons from within the ranks of the Gardai sought Ken out and started to (using the parlance of the current day) “whistle blow”. Ken was convinced that right was on the McBrearty’s side.

The litigation strategy to be deployed needed to be defensive from the outset.

There were 1 2 di erent charges contained in about 1 0 summonses against what has become known as “the extended McBrearty family” had to be defended. In tandem with dealing with the multiple summonses Ken was tasked with preparing High Court proceedings against the State for malicious prosecution.

Some of the charges veered on the ridiculous. “There was one particular charge in respect of the control of a dog where the Garda gave evidence that the dog was sweating’. I had to pass a note to counsel asking the Garda whether it would surprise you to know that dogs cannot sweat’!”

“The pressure was immense, I remember on one occasion myself and my wife being followed by a car from our hotel in Donegal town, we ended up going up every boreen in the Rosses practically and still were followed.”

In all of this the “wider issue” (as it came to be known) of alleged Garda misconduct in the Donegal division needed a di erent type of judicial intervention, so Ken (in addition to firefighting on a near constant basis for his clients) was advocating for the establishment of a tribunal of in uiry. The Morris Tribunal

Summer 2018 dsba.ie

Cross Examination

Photography: Bryan Meade

was eventually established in 2002 under the chairmanship of Mr Justice Frederick Morris. It sat until December 200 and its final report was issued in October 2008.

Ken is careful to acknowledge the role of David Walley who acted for both Frank McBrearty Senior and Junior (and others) at the Tribunal and ultimately brought the malicious prosecution action to a conclusion.

“David is a very good colleague,” Ken adds. Ken ended up acting for a number of members of the extended McBrearty family at the Tribunal, he gave evidence as a witness for a week and his attendances and notes (dating back to his pre-Tribunal representation work) were viewed as evidence of great worth.

Whilst Ken understandably felt “vindicated and elated at this, the proudest moment of my career” the last word perhaps should be left to Mr Justice Morris who in a written ruling in August 200 commended Ken Smyth to be “a diligent and hard working solicitor”.

John Forster, a biographer and friend of Charles Dickens once wrote that the suffering children in his works were his clients whose cause he pleaded with such pathos and humour, and on whose side he got the laughter and tears of all the world I’m not surprised that the boy who was inspired to become a solicitor by Dickens now devotes a substantial element of his practice (since 1st September 200 , Ken has operated his own practice, Ken Smyth and Company in Lower Fitzwilliam Street) to cases involving the welfare of children.

It’s a sensitive area of practice and one which re uires discretion and sound judgment. Typically (though not exclusively) Ken’s clients tend to be parents who have had an emergency care order (or a similar order) made against them either by an English local authority or by the Child and Family Agency (TUSLA) in Ireland and their children have been put up for adoption.

These types of cases primarily arise as Ken points out “owing to the draconian child protection laws in England” and the overly deferential attitude of the Irish authorities to the enforcement of English orders.

There’s also a body of work to be undertaken from time to time in terms of bringing judicial review applications against care orders made in Ireland.

“Three times since last September we have got children back” is how Ken directly puts it. In terms of delivering a positive outcome for a client, reuniting a family unit that a court has found to have been unlawfully or unjustly divided by an administrative decision has to rank up there in terms of job satisfaction.

Ken Smyth at a glance

FAMILY Married to Ciara since 1991. One daughter (Maeve) FAVOURITE FILM The Spanish Prisoner (1997) FAVOURITE BOOK Non-fiction – The Years of Lyndon Johnson (Volumes 1-4) by Robert A. Caro Fiction – Anything in the 19th century – Trollope, Wilkie Collins, Mary Elizabeth Braddon etc.

FAVOURITE PIECE OF MUSIC Suppers Ready by Genesis

Given the nature of the area the stakes are uite high for getting things wrong or indeed getting potential clients wrong. etting is thus a crucial first step for Ken and his team. “I usually feel that if I get what I call a McBrearty style feeling about a potential client, that I have made the right call.”

When I ask Ken by way of parting comment what his advice is to new entrants

to the profession or indeed to younger solicitors he replies “don’t come into the law for money, you have to love it, there has to be a reason to get you out from under the duvet every morning, do it because you want to do it”.

That’s sound advice and it’s clear from Ken’s continued zest for practice that its advice he abides by. P the Parchment 35

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

How to get More Clients?

A recent UK survey about solicitors has produced some interesting data. Flor McCarthy says that the answer to more clients rests with the ones you already have

The importance of marketing your practice is not about fancy logos or smart ads, it’s about how you relate to your list

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arlier this year the Solicitors’ Regulatory Authority published the results of its Price Transparency in the Legal Services Market survey.

It involved a very detailed survey of 1,000 participants on the market for conveyancing services in the UK. The last survey done in this area here was carried out by the Law Society in 201 . The results of the more recent UK survey add some very interesting insights to this analysis.

The survey looked at two factors in particular: how buyers find solicitors and then how they choose from what they find.

The results show that 80 found their solicitor based either on the recommendation of a family member, a friend, an intermediary or from previous personal experience.

Similarly, when it came to selecting from the options that they had found, 80 also chose based either on such a recommendation or prior experience. Interestingly, only chose the cheapest option available to them.

There’s much more to these figures, but they bear out a very simple fact that emphasises the importance of marketing your practice is not about fancy logos or smart ads, it’s about how you relate to your list. It’s all about the list baby.

People do business with those whom they know, like and trust. Therefore, your first and most important task in marketing you and your practice, is to have simple and e ective systems in place for developing your relationship with those who know you, and who come to like and trust you because of that relationship.

So, let’s look a little deeper. One of the difficulties I had with the Irish Law Society survey in 201 is that it said only 2 relied on a website or online search in choosing their solicitor. And while you can’t just choose the results that you like, that just did not make sense to me or bear out my personal experience.

Even if the number of those who first hear of you via a website or online search is small (which need not necessarily be the case), a much larger number will go online to check you out after they first hear of you.

There can be absolutely no doubt on this.

Now, the interesting thing to say here of course is that on its own, a website may not contribute anything to the ow of new work to a practice – like any tool it depends entirely on how you use it.

But no matter how e ectively you use a website as a lead generation marketing tool, it should serve as an essential source of credibility and conversion tool, in that even if they don’t first hear of you online, your online presence should assist in making them comfortable to choose you after they have found you.

The findings of the UK survey are much more in keeping with my own personal experience both as a business owner and a consumer of services. It found that 1 considered more than one solicitor and 1 spent more than one hour searching online for a solicitor. However, despite all of that appetite and e ort in shopping around, 2 ultimately went with a recommendation given by friends and family, or an intermediary in the end.

A figure of 8 said that they choose their solicitor based on an internet search (and before any of you

Summer 2018 dsba.ie

Practice Management

statistical geniuses out there start writing to me, yes, I know the figures add up to more than 100, but the uestions were multiple choice and each respondent may have chosen more than one answer).

But even though only 8 said they actually choose their solicitor this way, 1 actually went looking online presumably for reasons varying from search, to verifying the recommendations of others, to comparing the recommendations of others with the other available alternatives.

The buying process for our services is a complex one.

You should expect that.

When people come to use a solicitor it is often at a momentous point in their lives; it’s a big deal to them and can be a lot of worry and stress associated with the decision making process.

Complex problems re uire complex solutions.

Therefore, your marketing and sales process has to be up to the challenge. Consider this as an opportunity rather than a challenge. Most don’t bother to consider these uestions clearly at all, those who do and who actually implement what is re uired as a result, have a huge advantage in the marketplace.

When I say complex solutions, I don’t mean that this has to be rocket science. It doesn’t and it shouldn’t.

What I mean is that if your prospects are looking in multiple places and coming to you via a number of routes simultaneously (and they are), you just need to have the right content and processes there to aid them in their decision making and their journey to becoming your client.

The results of the survey are worth a read in detail, just Google the words in inverted commas at the start of this article and it should be the first result you’ll see. P the Parchment 37

Redundancy Claims - Traps for Employers, Tips for Employees The redundancy legislation in Ireland is very specific on time limits. Employment expert Richard Grogan warns that these time limits can catch colleagues out

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mployment legislation in Ireland is riddled with very strict time limits. The e ect of this was seen in a decision of the Labour Court in a case of DNT Forkam Construction Limited and Michael Diamond RPD181. In this case there was no dispute between the parties as regards the facts.

The employee was employed and was placed on temporary lay-o on th January 201 . Some four weeks later on 2nd February 201 pursuant to section 12 (1) of the Redundancy Payments Acts 1 -201 the employee served a duly completed form PR on the employer, asking for redundancy.

The employer subse uently issued a counter notice dated th March pursuant to Section 1 (2) of the Act. This is where the problem arose.

The court pointed out that section 1 (2) permits an employer who has received a notice from an employee of an intention to claim a redundancy payment in a lay-o situation, to serve on that employee a counter notice within seven days of receipt of the original notice. In this case for the counter notice to have been e ective, it would have to have been served by the employer on the employee no later than 10th February 201 . It was served on th March which was outside the statutory time limit.

The employee had argued that on subse uent dates on th June 201 and 1st August 201 the employer had o ered work to the employee. It was argued that the employee was not interested in returning to work. The Labour Court pointed out that these are not matters which can be taken into account. The Labour Court also indicated that the employee had fulfilled the re uirement specified in the Act. The employer had failed to do so.

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For colleagues dealing with redundancy claims it is worth reading Sections 11 to 1 of the Redundancy Payment Acts 1 -201 .

In the case in uestion the Labour Court held that it was obliged to confirm the adjudicator’s decision which was that the employee was entitled to redundancy. This is a case which highlights potential traps for employers and tips for employees.

There are two traps for employers. The first is that the seven-day period to furnish a counter notice is a strict period. There’s no provision whatsoever for an extension of time. There can be no excuse if the counter notice is not served on time. If it is not served on time, the employee is entitled to redundancy. The second trap for employers is that where a counter notice is served, the employer must be in a position to provide 1 weeks continuous full-time work commencing no later than four weeks from the date of the counter notice. There are issues in relation to this which employers need to be careful of. Simply serving a counter notice to defeat a redundancy claim can seriously backfire. If an employer serves a counter notice and is not in a position to furnish the 1 weeks continuous work, then in those circumstances the employee will be entitled to claim both redundancy and 1 weeks wages. For an employee on € 00 gross per week this would be an additional € ,800.

For those acting for employees it is very useful to ensure that any RP that is being served is sent by registered post and using a certificate of posting so that there is clear and definitive evidence that same has been served. It is important to ensure that the relevant form is fully set out and signed by the employee and dated.

Summer 2018 dsba.ie Richard Grogan is principal of Richard Grogan & Associates Solicitors and Registered Tax Consultants.

His firm won the Employment Law Team of the Year Award 2018 at the recent Irish Law Awards

For those acting for employees it is important to check if counter notice, when served, is received within seven days. The re uirement of the legislation re uires that it is served on the employee. This means e ectively that it is delivered to the employee.

If an employee serves a counter notice to arrive in the normal course of post with an employer on say, the Friday before a bank holiday then, unless the employee receives a counter notice delivered to him or her by the following Thursday, the employee is entitled to redundancy.

When acting for employees it is important to ensure that the appropriate RP form is served.

When acting for employers, if you are furnished with an RP , it is imperative that you take instructions immediately from an employer and

if a counter notice is appropriate to be served, that it is served forthwith within the seven-day period. If there is any difficulty in relation to when something might be delivered by way of post, in those circumstances you should ensure that the employer personally delivers same to the employee.

The redundancy legislation in Ireland is very specific on time limits. And these time limits can catch colleagues out. This short article is simply here to alert colleagues to the relevant issues.

I would recommend that colleagues read the recent decision of the Labour Court. It has the advantage of setting out the legislation in full. It is a short, precise and well written decision which makes the law abundantly clear to anybody reading it. P

Employment Law

The redundancy legislation in Ireland is very specific on time limits.These time limits can catch colleagues out the Parchment 39

Justice Delayed is Justice Denied “To delay justice is injustice” - even if it’s not your fault. As this maxim suggests, it is an essential tenet of the e ective administration of justice that proceedings must progress to trial without significant delay. Michael Kelly looks at the Rules of the Superior Courts and the courts’ rights to strike out proceedings for want of prosecution

W

hile there is a legislative basis for this power contained in Order 2 rule 1 and Order 122 rule 11 of the rules of the superior courts, the courts also have an inherent jurisdiction to strike out proceedings for want of prosecution.

The test under which the courts exercise this jurisdiction was initially set out by Finlay P in July 1 in the case of Rainsford v Limerick Corporation 1 2 ILRM 1. This decision was later approved by the Supreme Court in the 1 case of Primor plc v Stokes Crowley 1 2 IR .

The basic principles are as follows: 1. The delay must be inordinate and inexcusable.

2. If inordinate and inexcusable the court must in its discretion, decide that the balance of justice lies in favour of the case not proceeding.

The courts will look at any relevant factors in particular any delay on the part of the defendant and whether the delay prejudices the defendant or creates a risk that it is not possible to have a fair trial. It is important to note that fault on the part of the plainti is not essential. O’Domhnaill v Merrick 1 8 IR 1 1/ Toal v Duignan (no.1) 1 1 ILRM 1 / Toal v Duignan (no.2) 1 1 ILRM 1 0 – these cases support the position that even where there is no fault on the part of the plainti , it may still be in the interests of justice to strike the proceedings out.

Despite the Supreme Court’s endorsement of this test such motions are granted sparingly by the

40 the Parchment

courts. However, there appears to be a shift in the willingness of the courts to strike out cases for want of prosecution as illustrated in the recent case of Brian Maxwell v Life Assurance plc and John Fallon 2018 IEHC111.

This case concerned an action against an insurance company for specific performance of an insurance contract. Despite the fact that the motion to dismiss for want of prosecution was served within a year of the plainti seeking voluntary discovery, the court ordered that the case be struck out for want of prosecution.

The first named defendant identified three specific periods of delay: three years from delivery of letter denying liability to issue of proceedings; 22 months from delivery of notice for particulars to delivery of replies to particulars; and two years from delivery of replies to particulars to delivery of letter seeking voluntary discovery.

The court deemed the appropriate standard for examining whether delay was inordinate was by reference to ordinary standards of litigation (O’Carroll & Anor v EBS Building Society & Anor 201 IEHC 0). The court focused on the periods of delay from issue of proceedings and found them to be inordinate.

The court then examined whether the delay could be excusable and whether there was a reasonable or credible explanation for the delay (O’Connor v John Player & Sons Ltd 200 2 ILRM 21). The plainti ’s replying affidavit set out a number of excuses for the post-commencement delay including: a change in the

Summer 2018 dsba.ie Michael Kelly is a solicitor in the commercial litigation and dispute resolution team at Hayes Solicitors

plainti ’s solicitor; an erroneous belief that a defence had not been served when it in fact had (the pleading was mislaid); delay in advice on proofs from counsel and even sta holidays The court found none of the excuses o ered to be persuasive and found that the post-commencement delay was inexcusable.

The court in examining whether the balance of justice lay in favour of granting of the order identified two issues to be examined: (1) anything which militates against the court exercising its discretion and (2) potential prejudice to the defendants’ capacity to defend the action in a way that a fair trial could not now be held.

The plainti alleged delay and ac uiescence on the part of the defendants. The court found the longest period of delay was four months and attributed little weight to same.

With regard to prejudice to the defendants the court focused on three issues: (1) A phone call alleged to have taken place between the plainti ’s wife and the second named defendant in September 200 . There was no note evidencing this call and so its contents and indeed whether the call took place would be a matter of significant dispute.

(2) Whether at the time the second named defendant was aware of the plainti ’s family medical history.

This would involve an examination of the second named defendant as to knowledge he allegedly possessed some ten years before.

This would be extremely difficult to prove in the absence of documentary evidence of which there was none. ( ) The availability of the plainti ’s medical records.

The plainti claimed the records were likely still available but had not taken up copies of same.

The court focused on the potential issues arising from the phone call. The call is alleged to have taken place some ten years before the motion issued on an unspecified date in September 200 . The court acknowledged this call was central to the defence and acknowledged the potential difficulties in defending an action which hinged on whether a phone call was made on an unspecified date more than ten years prior to the date of trial. It is accepted that where matters at issue are not, or are not fully covered by documentary evidence, there is a greater likelihood of prejudice resulting from the delay.

The court accepted striking out a motion for delay was a draconian step however, it deemed it appropriate in this case due to the potential prejudice to the defendants’ ability to defend the proceedings.

In examining excuses for the delay the court made it clear that while the delay could have been blamed on the plainti ’s legal team they must be viewed as being within the plainti ’s control. Therefore it is essential that all plainti s remain in regular contact with their legal teams to ensure their cases are being progressed in a timely manner or they could face their claims being struck out for want of prosecution. P

Litigation

It is accepted that where matters at issue are not, or are not fully covered by documentary evidence, there is a greater likelihood of prejudice resulting from the delay

the Parchment 41

42 the Parchment

Summer 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

A Day in the Life of.....

Legal and Political Gold This edition of “A day in the Life” goes somewhat left of field. Yes the subject matter is a corporate lawyer who plied his trade in one of our large offices and someone who has strutted his stu in that environ. Yet alongside that role, he has heavily involved himself in civic society, ultimately managing a political party. Kevin O’Higgins met with Brendan Heneghan, recently retired from William Fry and found his life story and how he fills his day now as being both unique and fascinating

B

rendan Heneghan has been a corporate lawyer par excellence for three decades. Still in his 0s, single and recently retired, Brendan now has the time, space and energy to devote to his diverse interests, none more so than political activism – that is activism with a small ‘p’ for Brendan would never seek elected political office in the conventional sense, but rather political engagement in the sense of backroom activity, campaigning and mentoring of existing and prospective candidates for election.

Brendan has had a stellar legal career. A William Fry “lifer” he joined the firm in 1 8 and ultimately moved to the corporate law department of the firm, engaging in high profile work including plc work for the likes of Esat, Irish Life, Irish Ropes, Green Property, Woodchester, as well as significant venture capital work.

“Every day was di erent. No deal went to a pre-ordained plan and the trick was to plan for the unexpected.” It made for an interesting professional life where his technical excellence allied to superb organisational ability, meant deals (in which he was at the helm) ran smoothly most of the time and for that he generously credits others on his team, who in more recent years would have included Stephen Keogh, Shane O’Donnell, Eoin Caulfield and former DSBA Council member Carol Eager.

Brendan became a partner after a mere

Every day was di erent. No deal went to a pre-ordained plan and the trick was to plan for the unexpected

five years in the firm and was elected to the management committee in William Fry from 2002 for a six-year period. This is the highpowered group which runs the firm chaired by the managing partner. During Brendan’s time in the firm he served under Houghton Fry, Neville O’Byrne, the late Owen O’Connell, Brendan Cahill and Myra Garrett. It made for a busy working week on top of his normal corporate work and added up to an additional 20 hours a week. He took on responsibility for the firm’s IT systems and educational training.

From a DSBA point of view Brendan also somehow found time to assist the Association with CPD’s on commercial law matters, gave his time generously, but particularly o ered his expertise in precedent creation particularly as regards the DSBA specimen Share Purchase Agreement. The availability of this document, painstakingly put together, has been a godsend to many a small-to-medium sized firm as it has meant that deals which might otherwise have been lost to the smaller firm can be held on by the utilisation of the precedent which the larger offices are happy to use knowing that it has been carefully and fairly drafted.

But parallel to this high octane corporate work was Brendan, the political operative.

Smoke-filled rooms are from another era but Brendan became fascinated by the political process. He got involved with Fine Gael in his constituency of Dublin Bay South from an early age, moving from branch level to constituency officership to chairman of the the Parchment 43

“I’m o to help out a Democratic candidate, Sam Bell, in the forthcoming elections in the Rhode Island Senate” constituency. Allied with this were stints as Director of Elections in both local and general elections where the real decisions are made as to electoral strategy and tactics.

The political heavyweights then in his constituency were Garret FitzGerald, Ruair Quinn, and later Michael McDowell. The 1 General Election famously became a slug fest between McDowell and John Gormley where the count lasted seven days and Brendan would have been in the thick of it monitoring the movement of the votes of the second Fine Gael candidate Joe Doyle whose ,88 votes ultimately elected John Gormley.

Meanwhile, Brendan was participating at a national level for Fine Gael as an elected member of its governing body – e ectively the body that makes the political decisions relating to electoral strategy, who should run, how many candidates, who should be supported and so on.

44 the Parchment

In fact he served on this body over a 20-year period overseeing the John Bruton leadership, then the short-lived Michael Noonan period and ultimately to the Enda Kenny reign. He attributes Kenny as having grabbed the party by the scru of the neck organisationally upon becoming leader in 2002 and making it the formidable operation it became, resulting in its stunning success in 2011. In fact, Brendan chaired this body in the early Kenny years, so played a key role in the implementation of the changes that Kenny re uired.

Is it any wonder therefore that now retired since 201 Brendan has immersed himself in one of his passions as a psephologist. In Secrets of the Ballot Box written by Brendan and just published, he explores how our electoral system works. He does this using an analysis of all elections and referenda fought between 1 81 and 201 . He explores why transfers, despite the emphasis on them, particularly

by the media, are relatively ine ective; which of the bigger multi-seat areas give rise to a disproportionate number of anomalous results; the relative ease of winning half the seats in a constituency or area with an uneven number of seats; why our electoral system makes it very difficult for any one particular political grouping to exceed 0 seats; the mysteries of the tally; how it is possible to top the poll in an election yet not be elected; and why Dublin in particular, is where contentious referenda are won or lost.

His book is an essential guide for anyone who wants an understanding as to how our unique system of proportionate representation works. It is a system pretty uni ue to Ireland and as a nation we love the theatre that goes with it, despite the long counts.

As Enda Kenny said at the launch of Brendan’s book “The Irish electorate is fascinated with elections, not just about the issues of the day, not just about the mood of the time, but about the parties, personalities, and individuals involved. Candidates stand or fall, survive or vanish, emerge or decline by those electoral outcomes. That’s where this book thrives.”

But Brendan’s passion for elections is not just confined to this country. Far from it. He was an early evangelist for the future President Barack Obama and worked on his campaign. In fact he worked on both his presidential electoral con uests. Likewise, he helped out in the ill-fated Hillary Clinton campaign basing himself in Pennsylvania and Philadelphia where he recalls, being given a dossier of Irish names to follow up on and was struck by how connected the diaspora is still, to the “old sod”. He has campaigned for the SDLP in Northern Ireland and in the most recent General Election in the UK in 201 , he devoted three weeks in assisting the ultimately successful Irish born MP, Conor McGinn of the Labour Party to secure his seat as MP for the constituency of St Helen’s North.

Yet Brendan also finds time to serve as treasurer with the St incent de Paul Conference in the north inner city and is an active board member of Lyric Opera Productions which seeks to o er the delights of opera in a less stu y manner and within the reach of everyone.

So as I conclude my chat with Brendan he tells me that he’s o to the United States in the morning to which I ask – holiday “Nope” he says, “I’m o to help out a Democratic candidate, Sam Bell, in the forthcoming elections for District in the Rhode Island Senate.”

Brendan is truly a citizen of the world – engaged, interested and willing to assist in global democracy for the good of our civilisation. P

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Pension Scheme Funding Proposals: Are they Enforceable Contracts?

Sonya Dixon examines a decision of Mr Justice Charleton which stated obiter that liability for an employer could arise as a result of a funding proposal as it could amount to a contract. Accordingly, scheme members could then sue the employer for breach of contract

M

any defined benefit schemes remain underfunded after the world recession that began a decade ago. Despite the fact that the economy is improving globally, defined benefit schemes are closing to new entrants or being wound up. Many scheme members are outraged that they will not get their full benefits as promised. Benefits under a pension scheme can be described as deferred income and therefore members are not getting the full income which they have rightfully earned.

Scheme members may have a claim if trustees or employers breach the trust deed or trust rules. If the trustees breach their fiduciary duty in some way a liability should arise. However the case of Greene and Ors. v Coady and Ors. 201 1 IR 8 brought some comfort to trustees. Unless it can be shown that they acted in a way that no reasonable trustees would have acted, they will not be liable for a breach of trust.

However in this case another interesting concept arose. Mr Justice Charleton stated obiter that scheme members could sue the employer for breach of contract.

A funding proposal must be submitted by trustees

46 the Parchment

to the Pensions Board when a scheme is not meeting the statutory funding standard or funding standard reserve. If a funding proposal is not submitted, a section 0 direction can be given by the Pensions Board which will reduce benefits for members. A scheme is not meeting the funding standard if they cannot meet their liabilities in order of statutory priority, if a scheme were to wind up. An employer may then pledge a certain amount to the scheme so that it can meet the funding standard.

In correspondence between the trustees and the company the company stated the “funding proposal is not and was never intended to be a contract – it is a statutorily required document that does not override the provisions of the trust deed and rules or impose contractually binding obligations Mr Justice Charleton stated “This is most unconvincing but was designed so that the trustees would not see it this way The trustees also received legal advice to the e ect that it was arguable that the funding proposal was binding on the company.

Mr Justice Charleton has stated obiter that in his view it amounts to a breach of contract if it is not met. He states In addition, there was the issue of whether the funding proposal at €10 75m per annum constituted a contract, the breach of which would give

Summer 2018 dsba.ie Sonya Dixon, BL is a practising barrister with an interest in the area of pensions

rise to an entitlement to damages on the capitalised value mentioned above… if the circumstances in which a funding proposal is made involve a de nite offer by the funder to the trustees and a de nite acceptance by them and if the sum to be paid is xed over a period of years, then the ordinary rules of contract suggest that the solution to this issue is that over that period an agreed sum is what the funder must pay to the trustees on behalf of the bene ciaries The answer to this is, however, capable of dispute Pension funds go up and down There are good years and bad years The obligation of the funder under the trust deed, to pay in accordance with its terms so as to allow a de ned bene t to employees, can be buoyed up and down with the rise and fall of the market He then goes on to state: “While it may be said that the vagaries of the market and the possiblity of resort to the Pensions Act to reduce bene ts removes from a funding proposal the binding character of a contractual obligation if accepted, this court does not agree Where in the knowledge of the alternative of reducing bene ts, a funder makes a proposal for a de nite period, and this is accepted, then this is an enforceable contract Mr Justice Charleton therefore makes it very clear that in his view a funding proposal can be binding on the employers.

In Greene v Coady there was a deficit in the pension scheme of which the plainti s were members, amounting to approximately €100m.

The defendants in this case were the trustees of the scheme.The Pensions Board was going to give a section 0 direction unless a funding proposal was submitted.

Negotiations were entered into with the company and a funding proposal was made under which the company was to pay €10. 2 m per annum into the scheme for a period of 11 years. This was accepted by the trustees and approved by the Pensions Board.

However, the deficit returned. arious options were examined by the trustees but the overall solvency

Pension Litigation

of the company was also in doubt. It transpired that the company was in fact unwilling to continue contributing to the scheme. They o ered to contribute to the deficit in the amount of € .1m and ultimately to wind up the scheme as otherwise the Shannon operation (Irish company in the group) may have had to close with the loss of jobs.

Given the threat of closure the trustees did not make a contribution demand and accepted the o er.

The members of the scheme sued the trustees for not making a contribution demand, alleging that this amounted to a breach of trust and wilful default.

Presumably one of the reasons the trustees did not attempt to sue the employer for breach of contract on the funding proposal was the same reason they did not make the contribution demand.

They were told by the company that if they did not accept the o er, the Irish operation would be shut down resulting in large amounts of job losses.

Mr Justice Charleton has left the door open for this to be tested in the Irish courts. It is important to note however that the specific wording of both the funding proposal and the contribution rule in the trust deed and the scheme rules should be carefully examined in each case. It is another possible option that practitioners should be aware of when acting for scheme members in this complex and difficult area of the law.

In circumstances where there can often be little recourse for scheme members this may be a welcome development where they feel that they have been let down again and again. With the trend for the closure of defined benefit schemes continuing, it may only be a matter of time before this uestion comes directly before the court.

This may result in some comfort for these scheme members when employers have reneged on a promise not for the first time. P

A funding proposal must be submitted by trustees to the Pensions Board when a scheme is not meeting the statutory funding standard or funding standard reserve

the Parchment 47

In Practice

THE EUROPEAN DATA PROTECTION BOARD COMMENCES Following the entering into force of the General Data Protection Regulation, the European Data Protection Board (EDPB) began work on 2 th May 2018. This body replaces the body formerly known as the Article 2 Working Party, which previously grouped the EU’s supervisory authorities, the EDPS and the European Data Protection Supervisor and the European Commission.

The Board is based in Brussels and its primary role is to safeguard the consistent application of GDPR. It also advises the European Commission on for example, the level of data protection o ered by third countries or organisations outside the European Union.

It also promotes co-operation between the national supervisory authorities and plays a role in the conciliation process for disputes between national supervisory authorities. It will also issue guidelines, recommendations

and statements of best practice on di erent topics.

The Board is comprised of the heads of the supervisory authorities, and the European data protection supervisors or their representatives. The Chair is Dr Andrea Jelinek, the head of the Austrian Data Protection Authority. The goals for the coming year are to provide general guidance (including guidelines, opinions, recommendations and best practice) on data protection law, to adopt a consistency in decisions and opinions in cross-border data protection cases, and finally, to promote co-operation and e ective exchange of information and best practice between national supervisory authorities.

Greg Ryan, S A ice President

EU TO PRESS US FOR EXPANDED DATA SHARING DEAL The EU Justice Chief, era Jourova, will push for a new data access agreement with the United States as a result of growing transatlantic tensions over issues including the Iranian nuclear agreement. Jourova met with the US Attorney General, Je Sessions, in an attempt to persuade him that the US and EU should create an arrangement for the respective law enforcement authorities to uickly demand and obtain data from technology companies based both in the US and in the EU. While there are new legal measures on both sides of the Atlantic which give authorities more power to obtain data, they can only obtain that for the purpose of investigating crimes. Jourova wants an additional deal to speed up the data

re uests specifically in new EU legislation which she has proposed, which would allow law enforcement authorities to demand data within ten days or in six hours in emergencies. This is regardless of where the technology company is head uartered or where it stores data.

Negotiations for this arrangement have been ongoing since last year but were sidelined when President Trump approved the new legislation known as the CLOUD Act in March which only allows for bilateral deals with individual countries instead of with the EU voting block.

The UK has already negotiated its own agreement with the US and Jourova wants to avoid all 28 member countries having to do the same thing, commenting that “for the

CENTRAL OFFICE AND COURTROOM GDPR UPDATE As a result of the introduction of GDPR, the Central Office has introduced some changes.

Judgement sets must now be presented in an envelope. When looking at the judgment register, “privacy” swinging doors have been introduced with a sign indicating that only authorised personnel are entitled to view the register at a particular time.

In relation to papers being left in courtrooms during recess/lunch breaks, the Courts Service does not have a policy of locking courtrooms during lunch time as it would impose too much of a burden on sta 48 the Parchment

who have to continue their duties during lunch break and cannot wait around for practitioners to vacate a particular courtroom.

Of course there will be exceptions and court sta will assist where possible. It is essential that barristers and solicitors make sure they do not leave unattended documents in court.

Documents are also being left in the solicitors’ rooms in the Four Courts and this may have implications if the documentation is accessed subse uently. arra O’Cochlain, S A Litigation Committee

rest of Europe we want a unified harmonised approach”.

The US Administration does have some difficulties in agreeing a deal as there are restrictions in the CLOUD Act which would have to be overcome first. Further the fast track system will bypass current data exchange treaties between the justice ministries which have been criticised for being overly bureaucratic and time consuming.

Negotiations on the draft EU legislation have not yet commenced.

Greg Ryan, S A ice President

LITIGATION UPDATE Litigation practitioners please note the following.

1. As of November 201 , a plenary summons can be served on an individual by registered post as well as personal service.

2. The Circuit Court office will not accept an affidavit of verification of a civil summons at the time of issue. That should be filed within two weeks of issuing. arra O’Cochlain, S A Litigation Committee

Summer 2018 dsba.ie

News

Photography: Paul Sherwood

Irish Law Awards 2018

In House Legal Team of the Year recipients Cluid Housing (left to right) Lydia Mullane, Orla Cleary, Lorraine Nolan and Julie Doyle

Solicitor of the Year 2018 Stuart Gilhooly (left) with Sean O’Carroll, Medlaw, sponsors; and Miriam O’Callaghan

There was much celebration at the Irish Law Awards 2018 which were held in May. The Parchment and the DSBA are very proud of a number of winners at the awards ceremony including two former editors of the Parchment.

Stuart Gilhooly won the Solicitor of the Year award. The Harold’s Cross litigator and former President of both the DSBA and Law Society scooped the top prize. A former editor of the Parchment and long running columnist of The Closing Argument and Cross Examination interviews in this publication, we congratulate Stuart for his tremendous win and wish him and his colleagues at H.J. Ward & Co continued success.

Crumlin-based Keith Walsh had two awards to pick up on the night. He won Dublin Family Law Firm of the Year and Family Lawyer of the Year. Also a former editor of this publication and former President of the DSBA, Keith deserves great credit for being one of the country’s foremost family law practitioners and being a colleague who is only too happy to assist those who need some advice or a steer.

Julie Doyle, head of legal at Cluid Housing lifted the In House Legal Team of the Year award on behalf of her colleagues in the Cluid Housing team. Julie who has been a key member of the Parchment committee for the past few years had joined Cluid earlier in the year from Beauchamps.

Our congratulants to Stuart, Keith and Julie and indeed all the winners at the recent awards ceremony in Dublin.

Family Lawyer of the Year 2018 Keith Walsh

the Parchment 49

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Summer 2018 dsba.ie

News

Mental Health Seminar

Judge Gráinne O’Neill – A Tribute My first appearance before Judge Gr inne O’Neill was back in 201 . My colleague Dara Robinson, solicitor, had known her in practice and believed that she was a very good appointment, which certainly proved to be the case.

What was most impressive about Judge Gr inne O’Neill was her judiciousness and sound judgment, which was always provided under the pressurised time limits that members of the judiciary find themselves in, in the District Court.

I remember one particular assault case that Judge Gr inne O’Neill had to contend with, whilst sitting in Limerick District Court, for which her reasoning when passing judgement was an indepth lesson on how evidence should be listened to and discerned upon before providing a decision.

On another occasion on a Friday summer’s afternoon when everyone in court could only think about getting away from the pressures of work, Judge Gr inne O’Neill was sitting in Court 1 in the CCJ, when Michael Finucane, solicitor, arrived to say that an international convention of ministers for justice was due to take place in Dublin that weekend, and that he had instructed senior counsel to make an application for an arrest warrant for the Minister for Justice from a country that I shall not name to ease pressure on the editor, in respect of torture committed on his client, who had been granted asylum in Ireland. The application could easily have been passed on to another court and one would’ve thought it would certainly have been the side step to take.

However, Judge Gr inne O’Neill with a wry smile and cutting look to Mr Finucane indicated that she would gladly take the matter up and listen to the application as the glorious day streamed through the window.

Judge Gr inne O’Neill’s sharp-tongued wit was acclaimed and would put Lord Edmund Blackadder to shame. The tales of Judge Gr inne O’Neill’s timing, put downs and a ability o the bench were renowned and referred to in The Irish Times on th June 2018.

Judge Gr inne O’Neill is survived by her father Terry; her brother Olaf; sister Fiona; sister-in-law Christina; brother-in-law Alan; nephews Harry and Simon and many friends. All members of the DSBA would like to pass on their condolences to the family and friends of Judge Gr inne O’Neill who was taken from us so early in life, with so much to give and o er.

Ar dheis D go raibh a anam.

Richard Young

The DSBA Mental Health and Capacity Committee hosted a packed seminar with the Irish Mental Health Lawyers’ Association on 2 th of June last in the offices of the Mental Health Commission. Mr Justice Hogan kindly presented at the seminar despite his extremely busy schedule, and the committee want to take this opportunity to extend our thanks to him.

The seminar focused on a review and update of recent developments in Mental Health Law. With 2018 seeing considerable developments in mental health case law, and with significant decisions from the Court of Appeal including judgments dealing with the status of the voluntary patient PL v Clinical irector of St Patrick’s University ospital 201 IECA 29 ; the rights of patients in taking Circuit Court Appeals IF v Mental ealth Tribunal 201 IECA 101 ; and also a significant finding in the case of A -v- The Clinical irector of St Loman’s ospital & Ors 201 IECA 123, that Section 1 ( ) of the Mental Health Act is unconstitutional, having regard to the length of the term of detention, involving a patient who was detained on a 12-month order.

The speakers included Orla Keane, Director of Tribunals, Mental Health Commission, dealing with amendments to the Mental Health Act 2001; Katherine Kelleher, solicitor, dealing with children involuntarily detained under the Mental Health Act; Niall Nolan, BL on recent case law and solicitor Tony Carmody on the IF case. The seminar was chaired by Joan Doran, Chair of the Mental Health and Capacity Committee.

Aine ynes

Aine Hynes, Mr Justice Gerard Hogan and Joan Doran the Parchment 51

News

Belfast Solicitors’ Association Tripartite Golf Event The Dublin Solicitors’ Bar Association was invited to Belfast on 1 th May last to take part in a tripartite golf event with the Belfast Solicitors’ Association (BSA) and the Liverpool Law Society.

The event was hosted by the BSA at at Malone Golf Club in south Belfast.

The claret silver jug in the photograph is the new BSA/DSBA/Liverpool Law Society tripartite golf trophy. According to DSBA President Robert Ryan, the event was a great

success. “The new tripartite golf event helps to maintain a longstanding association between the Dublin, Belfast and Liverpool solicitors’ associations.”

BSA won the inaugural event in which 8 golfers took part. The two DSBA teams included Eamonn Shannon, Michael Quinlan, Richie Bennett, Aaron McKenna, Robert Ryan, Shea Cullen, Stephen Fleming and Sean Steven McKeown (centre, Chair BSA), Robert McDonnell. Eamonn Shannon, as DSBA golf Ryan (right, DSBA President), Jonathan Bierkson captain, organised the DSBA teams. (left, Chair Liverpool Law Society Golf)

DSBA Cricket Event

Friday 2 th June 2018 saw the second annual John F Buckley cricket match between the DSBA and the Bar Council of Ireland at Leinster Cricket Club in Rathmines.

The match was a much closer a air than the inaugural match played in June 201 .

The DSBA team chose to bat first and posted a respectable target of 108 runs o 20 overs. There were some fine individual displays of batting by the DSBA with Jody Toner (Walkers), Timmy McDowell (Beauchamps) and Aidan Buckley (guest player and son of the late John F Buckley) showing particular skill. Nicolette Lennox showed some great shot selection and was unlucky to be run out (no blame is attached to Tony O’Sullivan of Beauchamps ).

The Bar Council raced towards the target with Niall Buckley, son of the late John F Buckley showing no mercy to early bowlers.

The middle order for the Bar Council were not expecting the DSBA to have such strength 52 the Parchment

in depth from their bowlers and the pace of scoring slowed down as the sun began to set over Rathmines.

As the Bar Council reached 100 their players who were yet to bat, were seen to retreat to the bar and there were reports of one or two getting a head start on the curry.

Despite the friendly nature of the match the DSBA decided to unleash their secret weapon, spin bowler Mark Bergin of O’Connor Bergin Solicitors. Wickets fell in uicker than Dave Staunton and other members of the Bar could get their pads on. Reminiscent of court, the barristers seemed to think they could be in two places at the same time The DSBA appeared to have dealt a psychological blow.

The fall of late wickets with the target so close ensured a tense and thrilling finish. The Bar Council managed to regain their composure and reach the magic number of 10 .

For a second year in succession the Bar Council won but perhaps the seeds of doubt

have been sown, it might be suggested that next year’s match will be an even closer run a air.

The players and spectators met on the pitch after the match where the John F Buckley trophy was presented to the Bar Council of Ireland and both Dave Staunton on behalf of the Bar Council and Robert Ryan on behalf of the DSBA said a few words in tribute to the late John F Buckley. Claire Buckley, the wife of John F Buckley was in attendance with her daughter Orla Buckley of Beauchamps together with players Niall and Aidan Buckley and their families.

Curry and drinks were served in the clubhouse afterwards with a special thanks to Niall Carroll and all the members and sta of Leinster Cricket Club for their warm hospitality.

A little known fact about the venue is that Leinster Cricket Club hosted the first ever Irish rugby international in 18 .

Matthew enny, S A Council

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DSBA Property and Licensing Seminar

The DSBA Property Committee hosted a CPD seminar on 5th July 2018. The seminar was entitled Licenced Premises and Conveyancing; Annual licensing Court and the DSBA Precedent Letting Agreement.

Speakers at the event were Constance Cassidy, SC and Tony O’Sullivan, Beauchamps.

Photography: Michael Finn

Left to right: Speakers Ronan McLoughlin; Constance Cassidy SC; Tony O’Sullivan

Left: Aine Coghill, Hayes Solicitors; Linda Nicholson, Martin E Marren Far left: Susan Uí Uiginn, Susan Uí Uiginn Solicitor; Paul Carolan, Patrick J Carolan & Co; Gráinne Cunningham, JR Sweeney

Right: Eileen Walsh, Smith Foy & Partners; Orla Rooney, Ferrys Far right: Ray Fitzpatrick, Augustus Cullen; Dermot Sherlock, Sherlock Law

Left: Mary Cowhey, Mary Cowhey Solicitors; Anne O’Sullivan, Rennick Solicitors; Deirdre Walsh, Eugene F Collins Far left: Kenneth Morgan, William Fry; Constance Cassidy SC, speaker

54 the Parchment

Summer 2018 dsba.ie Photography: Michael Finn

Left to right: Speakers Peter O’Brien, PIAB; Susan Martin, DSBA, Chair; Bonnie Hickey, BL; Michael Mulcahy, SC

DSBA Litigation Seminar

The DSBA Litigation Committee hosted a CPD seminar on 14th April 2018.

The seminar was entitled Updated and Developments in Civil Litigation.

Speakers at the event were Bonnie Hickey, BL; Peter O’Brien, Injuries Board; Michael Mulcahy, SC and Susan Martin, solicitor.

Left: Tom Mannion, Mannion Solicitors; Anne Marie James, Kirwan McKeown James Solicitors; Martin Moran, Martin Moran & Co. Far left: Katie Nugent, Dillon Eustace; Neil Cowhey, Dillon Eustace; Shahinaz Keating, Dillon Eustace

Right: Monica Nally and Donal Holohan, both Hennessy, Maguire McClafferty Solicitors Far right: Niall Kiernan, Lawlor Partners; Elaine Corcoran, Elaine Corcoran & Co. Solicitors

Left: Maeve McQuaid, Berni Fleming, both DCC Far left: Mary McNeill, Cullen & Co; Martin Gallagher, CSSO

the Parchment 55

DSBA Practice Management Seminar

The DSBA Practice Management seminar was held in April 2018.

The seminar was entitled Mandatory Regulation.

Speakers at the event were Fiona Stanley, Law Society; Aidan Clifford, ACCA Ireland; Brendan Savage, BL. The seminar was chaired by Niall Cawley, solicitor.

Photography: Michael Finn

Left to right: Speakers Niall Cawley, DSBA; Aidan Clifford; Fiona Shanley and Brendan Savage

Left: Joe Clancy, Joe Clancy Solicitors; Geraldine Kelly, Geraldine Kelly & Co Solicitors Far left: Lorna Shannon, Gaffney Halligan & Co Solicitors; Frank Egan, Egan O’Reilly Solicitors; Nora Morris, James A Connolly & Co Solicitors

Right: Mary Kilcullen, Kilcullen & Associates; David Murphy, Corrigan & Corrigan Far right: Patricia Drumgoole and Mary Barrett, both Drumgoole Solicitors

Left: Vincent Shannon, Shannon Solicitors; Aidan McNulty, Aidan J McNulty & Co Solicitors; Brendan Savage, speaker Far left: Elizaveta Donnery, Donnery & Co Solicitors; Owen O’Sullivan, Owen O’Sullivan Solicitors

56 the Parchment

Summer 2018 dsba.ie Photography: Michael Finn

DSBA Mental Health and Capacity Seminar

The DSBA Mental Health and Capacity Committee hosted a CPD seminar on 26th April 2018. The seminar was entitled Capacity Issues Arising in Practice.

Speakers at the event were Professor Patricia Casey; Mark Felton, Felton McKnight Solicitors); Katherine Kelleher, Comyn Kelleher Tobin and Aine Hynes, St John Solicitors.

Above l-r: Speakers Joan Doran and Aine Hynes, both DSBA; Aine Flynn, DSSMHC; Mark Felton; Professor Patricia Casey; Katherine Kelleher, Comyn Kelleher Tobin Right: Eimear O’Connor, Legal Aid Board; Catherine Fahy, Legal Aid Board Far right: Aine Flynn, DSS-MHC; Nicole Dillon, Porter Morris; Orla Keane, Mental Health Committee Left: Roisin Slattery, James P Evans; Paul Carroll, an Post; Shona Madden, Madden Law Far left: Terence O’Connor, General Solicitors Office; Morag McCullagh, Byrne Wallace

Right: Kevin Dunne, Hayes Solicitors; Mark Felton, speaker Far right: James Meagher, Thomas Griffin & Co; Darach Connolly, Darach Connolly Solicitors

the Parchment 57

DSBA Practice Management Seminar

The DSBA Practice Management Committee hosted a CPD seminar on 22nd May 2018. The seminar dealt with GDPR and its implications for the running of a solicitor’s practice; an update on changes to standard professional indemnity insurance conditions; and cyber security issues and advices.

Speakers at the event were Matthew Austin, Hayes Solicitors; Richard Hammond, Hammond Good Solicitors and Fergal Mawe, Law Society.

Photography: Michael Finn

Left to right: Speakers Fergal Mawe; Niall Cawley Chair; Matthew Austin; Richard Hammond

Left: Denis Ryan, Keith Walsh Solicitors; Francis Rowan, FX Rowan & Co Far left: John Plunkett, Plunkett Kirwan; Tom Mannion, Mannion Solicitors; Michael O’Shea, Michael O’Shea & Co; Robert Anderson, Anderson & Gallagher; Michael Kennedy, Michael J Kennedy Right: Frank Egan, Egan O’Reilly; Anne Leech, Ciara Doyle Solicitors; Niall Cawley, Chair Far right: Christina Sauer-Dechant, Charltons Solicitors; Georgina K Murphy, Beauchamps

Left: Fergal Mawe, speaker; Cormac Carty, Kent Carty Far left: Joanne Sheehan, Cornelius Sheehan & Co; Avril Gallagher, Avril Gallagher & Co

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Summer 2018 dsba.ie Photography: Michael Finn

DSBA Property Seminar

The DSBA Property Committee hosted a CPD seminar on 29th May 2018. The seminar was entitled Buying Commercial/ Investment Properties – Part 2.

Speakers at the event were Michael Hanley, Hayes Solicitors; Rowena Fitzgerald, Mason Hayes & Curran and William Prentice, Matheson.

Right: Speakers Michael Hanley, Rowena Fitgerald, William Prentice and Ronan McLoughlin

Left: Ursula Atueyi, ACSK Solicitors; Paul Carolan, Patrick J Carolan & Co. Far left: Barry Fox, CB Robinson; Patrick White, Patrick White & Co

Lady Solicitors’ Lunch Friday 28th September 2018 for Lady Solicitors in the Kildare & University Club at 1pm. Drinks Reception at 12.30pm. Tickets: €60

Above: Helen O’Connell, Sherwin O’Riordan; Cora Heagney, Malcomson Law Below: Justin Fennell, P J O’Driscoll & Sons Solicitor; Elaine O’Driscoll, P J O’Driscoll & Sons Solicitors

For bookings and more information please contact maura@dsba.ie or Tel: 01 670 6089.

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DSBA Midsummer’s Party and Law Book Awards

The DSBA midsummer party and 5th Annual DSBA Law Book Awards took place at the Conrad Hotel, Earlsfort Terrace on 22nd June 2018.

Guest of honour was Mr Justice Gerard Hogan of the Court of Appeal. For a full report on the Law Book Award winners, go to pages 24-26.

Photography: Michael Finn

Left: Robert Ryan, DSBA President; Mr. Justice Gerard Hogan

Left: David Bryan; Tim Bracken Far left: Eimear O’Doherty; Niall Cawley; Mary Walshe

Right: Constance Cassidy; Eddie Walsh Far right: Des Ryan; Tony O’Sullivan; Deirdre Walsh

Left: Angela Brennan; Siún Leonowcz; Gearóid Carey Far left: Julie O’Hare; Barbara O’Hare

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Summer 2018 dsba.ie

Above: Robert Ryan, DSBA President; Elaine Given Above right: Derek Freedman; Jane Lehane; Carol Shatter; Alan Shatter RIght l-r: Una Burns; Anne Stephenson; Eamonn O’Moore; Sinead Reape

Left: Anne Leech Deirdre McDermott; John Spanner O’Malley, Majella Dolan Far left: Lucia Gallagher and Brian Gallagher

Right: Sarah Bruen; Ken Breen; Deirdre Keary Far right: Chan Shi; Graham Duke

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DSBA Criminal Law Seminar

The DSBA Criminal Law Committee hosted a CPD seminar on 11th June 2018 entitled Corporate, Regulatory and WhiteCollar Crime.

Speakers at the event were Dara Robinson, Sheehan and Partners; Shane Costello, SC and Shelly Horan BL.

Photography: Michael Finn

Left: Aoife Corridan and Ciara Hallinan

Left: Eva Morris, A&L Goodbody; Justine Hession, A&L Goodbody Far left: Grainne Whelan, KOD Lyons Solicitors; Eoghan O’Sullivan, KOD Lyons Solicitors; Colleen Gildernew, KOD Lyons Solicitors

Right: Ann Brizzel, Office of the DPP; Richard Young, Sheehan & Partners Far right: Mark O’Sullivan, O’Sullivan Kenny Solicitors; Matthew Kenny, O’Sullivan Kenny Solicitors

Left: Brian Coveney and Damien Coffree, both Sheehan & Partners; Aisling Mulligan, Sheehan & Partners Far left: Conway O’Hara, Central BOI; Alan McGill, Central BOI

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Summer 2018 dsba.ie Photography: Declan Corrigan

DSBA Cricket Day - John F Buckley Memorial Cup

The DSBA hosted the John F Buckley Memorial Cup cricket match between a Bar Council Select 11 and a DSBA select 11 at the Leinster Cricket Club, Rathmines on 29th June 2018.

The DSBA would like to thank the Leinster Cricket Club for hosting this fantastic event. A superb day was had by all.

Above: Peter Shanley bowling to Gerry Gallen, Beauchamps with Roland Budd keeping wicket. Kevin Jolly opposite end in green shorts Above: Charles Lysaght.

Right: Gerry Gallen and Tony O’Sullivan, Beauchamps Far right: Roland Budd, Robert Ryan and David Staunton

Left: Marc Murphy, David Staunton, Peter Shanley and Michael Lynn Far left: Nicolette Lennox and Timmy McDowell (batting) with Roland Budd wicket keeper

Right: Matthew Kenny wicket keeper, Michael Lynn batting and Aidan Buckley bowling Far right: Orla Buckley and Kevin O’Higgins

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Closing Argument Simon McAleese

Simon McAleese is principal of Simon McAleese Solicitors

The courts have become swamped with lay litigants and their McKenzie Friends

The Law of Unintended Consequences

Y

ears ago I wrote to The Irish Times fulminating about the prevalence of dog droppings upon the pavements of Dublin.

The late Kevin Feeney, SC (this was prior to his appointment to the High Court bench), a renowned wit, raised the matter with me: KF: “I hear you wrote to The Irish Times about dog droppings!”

Me: “I did.”

KF: “Are you for them or against them?!”

Thus, Kevin demonstrated with a deft satiric touch, how anyone who speaks publicly about a given topic must be prepared to accept that his or her comments will often not be understood in the manner intended. So it is with some trepidation that I venture to speak about lay litigants in civil litigation matters and the sheer numbers of them involved in cases of almost every possible description. Lay litigants and their supporters (known as McKenzie Friends) are now a substantial feature of the courts landscape. Our seriously under-resourced and over-stretched courts system is ill-suited to their needs. What can be done to assist matters I also think that we have to ask the uestion – why are there now so many lay litigants?

When I speak with English colleagues, they are invariably surprised that most Irish personal (as opposed to commercial) civil litigation is undertaken by lawyers on a no foal/no fee’ basis. If the claimant has a case that has any reasonable prospect of success, then he or she will invariably find a solicitor and counsel willing to act in the matter on this basis. This arrangement is tried and tested, and is not champertous. It is the only viable alternative to the e ective nonexistence of civil legal aid for such matters.

No foal/no fee’ work is, in my opinion, not

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pro bono work in any real sense although it is sometimes held out as such.

I understand that the number of practising solicitors in Ireland is now circa 10,000. The latest edition of the Law Directory is so bulky that it could cause serious injury if ung at a colleague There is an ever-increasing number of solicitors and barristers chasing an apparently ever-decreasing supply of work.

This means that a very sizeable percentage of persons with a sound case (be they claimants or defendants) will have a reasonable prospect of obtaining representation on a no foal/no fee’ basis. In other words, the litigation is going to cost them nothing, or very little. The lawyers will carry the costs of running the case, the solicitors regularly funding the claimants’ outlays, often to the tune of several thousand euros. Prospective litigants who do not have sustainable cases will find it hard to obtain no foal/no fee’ legal representation. The market is delivering to them a message which is undoubtedly harsh, but nevertheless realistic. I long ago came to the conclusion that the viability of any legal business depends as much on the cases that one turns away as the cases that one agrees to act in. Time and again I find myself saying “No” to potential clients who have no case whatsoever and, something that really vexes me, who have occasionally been referred to me by colleagues who would rather not give the necessary frank advice. I think that there are few greater discourtesies to a colleague than this type of referral. I suspect that many rejected cases are being run before the courts by lay litigants.

I have always been struck by the hospitality which is correctly enjoyed by lay litigants before the courts. For as long as anybody can remember, the courts and courts’ sta have been extraordinarily patient with and helpful to lay litigants. Even

the most trying, misguided and vexatious lay litigants have had the benefit of almost boundless courtesy and respect. And rightly so. Everybody is entitled within reason, to prosecute or defend their own cause and to freely access the courts for the purpose of vindicating their rights. It is only in the most exceptional cases that the courts will upon re uest, and with great reluctance, impose Isaac Wunder orders re uiring serial litigants to desist from issuing litigation unless they first obtain permission from the court to do so.

The ease with which civil litigation can be commenced and the kindness shown to lay litigants by the judiciary over the years has had unintended conse uences. The courts have become swamped with lay litigants and their McKenzie Friends. In relation to the latter, it is notable that the Court of Appeal, the High Court and the Circuit Court have had to issue practice directions in an e ort to stop non-lawyers conducting cases on behalf of clients’ and specifically, forbidding from acting as McKenzie Friends former solicitors who have been struck o the roll of solicitors for professional misconduct.

What can be done about this state of a airs Perhaps the establishment of a division in each court which deals specifically with claims which are driven or defended by lay litigants, with customised Courts Service support The Bar Council’s recent submission to the Review Group on the Administration of Civil Justice contains some excellent suggestions as to how lay litigants and their McKenzie Friends might be better assisted to the benefit of all concerned. I know that the Law Society of Ireland will also be putting forward submissions to the Review Group (or perhaps has already done so ) addressing this general topic. P

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