Parchment Summer 2020

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D UB LIN SOLICITORS B AR ASSOCIATION MAGAZ INE | SUMMER 2020 | ISSU E 84

CONTACT TRACING APPS What are the privacy and data issues?

HOW WAS THE LOCKDOWN FOR YOU? NINE PERSONAL ACCOUNTS DOCUMENTED DSBA PRESIDENT TONY O’SULLIVAN CROSS EXAMINED

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Summer 2020 dsba.ie

From the Editor

W

elcome to the summer edition of the Parchment, which comes to you at a time of some continuing uncertainty.

The past few months have been difficult for so many but thankfully the wheels of society are moving again and practices and businesses are back open.

Most solicitors were able to work during the lockdown and provide advice and assistance to their many vulnerable and needy clients. The work of those solicitors in a time of such crisis should be lauded and acknowledged. Broadband and technology ensured that the majority of us could work remotely from home as we continued to try and keep what work we had, moving.

In this edition, the nine members of the Parchment committee give an insight into their lockdown experiences of working during Covid-19. Common themes emerge from the lockdown that the downtime gave us all an opportunity to pause, assess, catch up and enjoy more family time.

The President of the Law Society, Michele O’Boyle, deserves immense credit for her leadership from the moment the crisis hit. Her emails, particularly in the early stages of the crisis, were a source of great reassurance and support to so many in the profession.

And no matter how difficult it has been for us as a profession, we must remember the 1,746 of our fellow citizens whose lives sadly ended as a result of Covid-19. Their loss is greatly felt across the country and we mourn their deaths at such a tragic time in our history. The frontline workers were majestic and brave and deserve our endless appreciation for their heroic work.

John Geary jvgeary@gmail.com

DSBA COUNCIL 2019/2020

TONY O’SULLIVAN DSBA President

JOSEPH O’MALLEY DSBA Vice President

DIEGO GALLAGHER Honorary Secretary

MATTHEW KENNY Treasurer

SUSAN MARTIN Programmes Director

NIALL CAWLEY Chair of Practice Management Committee

LAURA HORAN

PAUL RYAN Chair of Commercial Law Committee

JOAN DORAN Chair of Mental Health & Capacity Committee

KILLIAN O’REILLY Chair of Litigation Committee

RONAN McLOUGHLIN Chair of Property Law Committee

CIARA O’KENNEDY Chair of Employment Law Committee

GERARD O’CONNELL Chair of the Parchment Committee

AVRIL MANGAN Chair of Family Law & Minors Committee

TOM O’DWYER

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

PUBLISHED BY The Dublin Solicitors Bar Association, 1st Floor, 54 Dawson Street, Dublin 2.

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Summer 2020

Contents 6

How was the Lockdown for You? The 9 members of the Parchment Committee give an insight into their experiences of the Pandemic and recent lockdown

12

Kerrygold

18

Contract of Employment: The Burden of Proof

Kevin O’Higgins catches up with Tony O’Sullivan, a partner in Beauchamps and the 83rd President of the Dublin Solicitors Bar Association for this edition’s cross examination

Updated DSBA Precedent Deed of Separation Fiona Quigley BL provides an overview to the recently published and updated DSBA draft Deed of Separation

26

Standstill Solutions?

28

The Proof of the Pudding

Gearoid Carey considers how litigation standstill agreements could be usefully used by businesses caught in the headlights of Covid-19 consequences

Keith Walsh analyses the new Programme for Government which he says puts family law front and centre in an overall Courts reform package

Dublin Solicitors Bar Association 1st Floor, 54 Dawson Street, Dublin 2, Ireland T: 01 670 6089 E: info@dsba.ie W: www.dsba.ie

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page 12

CROSS EXAMINED... TONY O’SULLIVAN

Cian Beecher and Shane McCarthy assess the case of Marek Balans v Tesco Ireland Limited [2020] IEHC 55

22

I believe that 2020 will be remembered for one thing and that is how we came together to help each other deal with Covid-19

12

Summer 2020 dsba.ie

Contents

REGULAR FEATURES 01 04 62 64

Editor’s Note President’s Message News Closing Argument

32 30

Many a Slip Twixt Cup and Lip Susan Martin delves into the area of Wasted Costs Orders

32

Contact Tracing – A Privacy Primer The Commercial and Technology team at A&L Goodbody take a forensic look at what all this may involve

40

Equal Pay in the Spotlight

42

Covid-19 and Commercial Leases

Siobhán Lafferty highlights how employers in Ireland can be subject to hefty penalties where a finding of discrimination on the basis of gender relating to equal pay is made against them

Killian Morris examines relevant legal issues

46

40

Hacked and Held to Ransom Greg Ryan provides an update on some recent high profile thefts where hackers stole highly sensitive information – including from a leading law firm in New York

50

2020 Tax Update

54

Appeals to the Supreme Court

Brian Broderick says there is some expectation that there may be future adjustments to the taxation system in order to balance the books

James Meighan provides an overview on appeals systems to the highest court in the land

42 the Parchment 3

Message from the President

A New Era Ahead

A

fter almost ve months abemus mperium , want to welcome our new government and wish An Taoiseach Miche l Martin and all his Cabinet well in the difficult months ahead. particularly want to wish elen Mc ntee our new Minister for ustice every success.

The island of reland was going into lockdown when the last Parchment was going to print and on March 1 th, all schools, colleges and childcare facilities were shut, and the pubs closed down that weekend.

Although the full lockdown was not yet in place, there was strong overnment advice to work from home where possible and we did. ow we must take great care and continue to follow the advice of the S , our overnment and trusted news sources as we move out of lockdown.

Covid didn’t stop the SBA. e have over committee members who voluntarily contribute their time to twelve di erent committees and have been overwhelmed by the fact that there has been no dropo in the productivity of our committees during the lockdown. The breath of work that they undertake is enormous, from the regular committee meetings to articles for our website and the Parchment, to submissions to overnment epartments and the Legal Services egulatory Authority LS A . would highlight and thank all involved in the following that can be viewed on our new and improved website dsba.ie which has been brought online during the lockdown SBA uidelines on Covid-19 SBA uide to irtual earings in the Circuit amily Court in ublin SBA uide to Changes to Practice Procedure in amily Law n ublin arising from the Covid-19 emergency SBA guide to Protecting The conomic iability Of our Practice and SBA Submission to LS A e ni cation Of The Professions.

As we exit lockdown, we are preparing our new CP Timetable that will commence for the rst time in August. e are closely monitoring reopening and our Annual Conference will take place in Lisbon from the 17th to the th of September. e are nalising the details of what will be a superb weekend away in Portugal’s capital city.

The SBA continues its close relationship with the LS A through our taskforce. would recommend all of you to read the SBA Submission to the LS A regarding the ni cation of the Professions which can be accessed on our website. would note

4 the Parchment

that it is the considered view of the SBA that, based on how the existing court system operates, we could not recommend a merger of solicitors and barristers at present. The existing system provides a choice for litigants a merger might remove that choice. The SBA is of the view that a study into the true costs of a merger for litigants would be advised before commencing uni cation. eform of court listing system might also be necessary. e all watched the events unfold in Minneapolis and around the S as a result of the tragic death of eorge loyd. t was hard to believe at the start of May that Covid-19 would not be the number one story at the end of May. Listening to friends and colleagues, it’s clear that the range of emotions that we felt re ects the range of perspectives we have about race. n America, the killing of Mr. loyd is just the latest example of a racist and senseless disregard of the rights and dignity of people of colour in that country, particularly African American men, that dates back far too long. That perspective, understandably, has led to anger. n the centre of these spiralling emotions, we must consider what steps can we take to cause change The SBA continues to advocate for the ule of Law to provide opportunity for all. egardless of race, gender, nationality, sexual orientation, abilities, wealth and educational background or any other point of human di erence, everybody deserves to be recognised for who they are and respected for the distinct ualities that make them uni ue. e must not forget our common humanity. veryone deserves an opportunity to get joy and grati cation from their work and to feel a

sense of purpose and pride about the footsteps they leave behind in the world. eorge loyd won’t get that opportunity.

But we can pay tribute to his memory by leading our own lives in a way that pierces through prejudice to embrace and know people as individuals. The people who work with or for us, the people who serve us, the people we see in our communities, all of them deserve recognition and respect. Too often, we don’t even see each other. Let’s never forget to use our own lives to bring recognition and opportunity to others.

One of the rst events of my Presidential year was the launch of ntering the our Courts to mark the centenary of the Sex is uali cation emoval Act 1919 and to honour and celebrate the role and contribution of women to the legal profession in reland over the last 1 years. am pleased that the contribution continues at the highest level with the appointment of Ms ustice Mary rvine to be the president of the igh Court, the rst woman to hold the post.

On behalf of our members want to say a special thank you to Mr ustice Peter elly who retired on 17 une for his years of service to the rish legal system and in particular as a great supporter of the SBA. Please continue to listen to the advice of the S , our overnment and trusted news sources. Please take appropriate precautions for your sta , your family but also yourself.

But more importantly let’s look forward to a Munster inal on the nd of ovember with an All- reland nal on the 19th of ecember.

Tony O’Sullivan, DSBA President

SCOIL DLÍ ÓSTAÍ AN RÍ KING’S INNS LAW SCHOOL Ard-Dioplóma sa Dlí-Chleachtadh trí Ghaeilge (2020-2021)

Advanced-Diploma in Legal Practice through Irish (2020-2021)

BAIN AN MHEIRG DE DO CHUID GAEILGE

BRUSH UP YOUR IRISH

Neartaigh do chuid Gaeilge agus cuir ar do chumas seirbhísí dlí a thairiscint tríthi. Múintear idir Dhlí agus Ghaeilge ar an sainchúrsa seo.

Strengthen your command of Irish and learn how to offer legal services through Irish. Both Law and Irish are taught on this specialised course.

Múintear gné an dlí den chúrsa tráthnóna Dé Luain (18h00-20h30) ó thús Dheireadh Fómhair go mí an Mhárta. Ina theannta sin, bíonn deis ag rannpháirtithe freastal ar ranganna i gceart-scríobh na Gaeilge tráthnóna Dé Céadaoin (18h00-21h00). Is cúrsa go hiomlán ar líne é seo.

The Legal aspects of the course are taught Monday evenings (18h0020h30) from the beginning of October through to March. Participants also have the opportunity to attend classes in written Irish grammar Wednesday evenings (18h00-21h00). This is an online course.

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

Civil and criminal matter are covered, as are consultation and negotiation. This course is open to lawyers with fluency in Irish and areas of practice where a lot of work is carried out through Irish are given particular emphasis.

Táille an chúrsa: €975 (táille an scrúdaithe TEG, ar ghá a shuí, san áireamh). Sprioclá d’iarratais: Dé Luain 5 Deireadh Fómhair 2020.

Course fee: €975 (including the fees to sit the TEG exam as required).

Deadline for applications: Monday 5 October 2020.

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

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

How was the Lockdown for You? The 9 members of the Parchment Committee give an insight into their experiences of the Pandemic and recent lockdown

Killian Morris, Partner – AMOSS Solicitors I can remember vividly the moment that Leo Varadkar stood on those steps in Washington, we were in the office boardroom planning for how we might operate over the coming weeks with all the speculation around potential disruption. With the sudden closure of schools we had to uickly establish which of our sta had childcare issues and ensure they had the correct equipment and connectivity to work from home the next day. Up to that moment, we had been thinking about measures we might calmly implement over a longer period all that went out the window!

Not knowing what would happen next I had sourced an office desk and chair for the spare room at home on adverts.ie - culminating one very wet night in my having to run across the Luas track near Capel Street to an illegally parked car with an office chair under my arm! Screens and keyboards were set up at home but by the time the full lockdown was announced on 27 March, my new printer scanner hadn’t arrived.

I wondered that night whether the delivery would be allowed through the following day as an essential 6 the Parchment

service. Of course, as it happened, couriers and delivery drivers became regular callers to my door over the lockdown period to deliver a variety of important items namely documents, company seals, printer toner, badly needed hair clippers and essential wine or the rst few weeks of lockdown, we got used to Zoom and Team calls and occasional trips into the office to collect original documents where re uired.

Much of our work involves acting for developers and investors in social housing projects which saw a boost in activity during the health crisis. Getting signatures organised and agreeing protocols for the exchange and delivery of leases became a tricky but ultimately surmountable problem. Internally, as a business we had to take stock to ensure that aged debt and uncollected outlays were chased down and also we had to each make nancial projections for the coming months.

All this, while doing very badly at being a ‘home school’ teacher…

The pandemic has shown us new ways of doing things but I think we all crave normal face to face contact and working collaboratively within the office environment. Hopefully we will be back to that soon and, while it will inevitably be di erent, we can hope that the lessons we have learnt over the past few months will stand to us all.

Summer 2020 dsba.ie

Practice Management/News

Stuart Gilhooly – Partner, H.J. Ward Solicitors It was the best of times. It was the worst of times. Like many, my lockdown experience was mixed. Deep seated frustration at the closure of the courts and the shutdown of the economy but relief at the slowdown of life, the opportunity to catch up and more time to spend with family and out on my bike. hile had a home office set up since last year anyway, continued to attend my actual office in Harold’s Cross. Instead of driving though, I walked the 3km there and back which was a luxury not available during the busy court term. e have an office with a relatively small number of employees and plenty of space so distancing wasn’t an issue. or the rst few weeks, we rotated and some chose to work from home and still do.

There is no doubt that working from home will become an increasing part of everyone’s life but I don’t share the pervasive belief that offices are a thing of the past. certainly think that in professions, offices will remain an important part of daily working life.

or the rst time can remember managed to clear my desk. If lockdown is to be remembered for anything, it will be this seminal moment! But the scariest aspect was the almost total lack of new work for two months.

This seems to have been replicated across many small rms and it makes you appreciate clients more. As business begins to build again, they are certainly getting more love than ever.

Work didn’t grind to a halt though. The new concepts of virtual settlements are one of the positive developments from the pandemic.

Barristers, briefed remotely, engaged with the defendant's opposite numbers and cases were settled uickly and efficiently.

This does require a sensible approach from the defendants and some cases are appropriate for this method while many others will need to be listed for hearing before common sense prevails and the case can be disposed of.

It also made me question whether all meetings need to be done face to face. While I would happily never hear the word Zoom again, it does have its advantages and we could all learn to distinguish between those meetings that require personal interaction and those that do not.

While I would happily never hear the word Zoom again, it does have its advantages and we could all learn to distinguish between those meetings that require personal interaction and those that do not the Parchment 7

Joe O’Malley – Partner, Hayes Solicitors

In truth, the sharp shocks that we have experienced over the past four months will likely bring about fundamental changes in society generally and perhaps alter our traditional work routines and work life balance

8 the Parchment

Arguably, the most frequently asked question these days, yet the most evasively answered one is “How has your lockdown experience been?” Most will say that it has been mixed insofar as they have experienced shortcomings in the absence of a structured work environment although they have enjoyed the greater exibility and family time that remote working has borne. Some, take a more hard line either denouncing or applauding their new work life.

Those on the frontline of healthcare or furloughed have had an experience that most of us could never imagine.

For me it has been an utterly surreal experience characterised by intense nervousness about what lay ahead, rapid organisational planning, manic embracement of new technologies, tumultuous relief that it kind of works and a mix of enjoyment and stress at the unprecedented additional family time.

Adopting to these revolutionary changes in work and family life along with everyone else, is enough to cause the most zen like head to spin. In truth, the sharp shocks that we have experienced over the past four months will likely bring about fundamental changes in society generally and perhaps alter our traditional work routines and work life balance.

Looking back, it is hard to believe it was less than four months ago when the Government shut all schools, colleges and childcare facilities and cancelled the St Patrick’s Day festivities. The state of the nation appearance by former Taoiseach, Leo Varadkar TD on 12 March is a day that will forever be etched in our memories.

Like many colleagues, this heralded the commencement of military style operations to accommodate remote working for our workforce of around 150. The dogs in the street were barking about looming lockdown. Within days, all business premises were shut and non-essential travel banned. Suddenly, roads were eerily quiet, and pedestrians avoided each other like the plague.

The commencement and opening phase of the lockdown tested everything from our IT capabilities to the work ethic and resourcefulness of our sta and posed the greatest challenge to the leadership of a rm that had recently celebrated its 175th anniversary.

The safety and wellbeing of our sta was naturally our rst priority and it is a constant challenge to ensure that they are accommodated and supported to work remotely. The unique challenges faced by our clients, particularly those in sectors most acutely a ected by the lockdown, across retail, hospitality, healthcare and media also required our undivided attention. A newspaper client had to shut its doors on 15 March yet encouragingly it still managed to produce a national newspaper of the highest quality that kept us informed throughout the crisis. n and out of work, we have grappled with signi cant changes. The internet became a vital lifeline for many businesses almost overnight. Zoom and other similar platforms have become the most fundamental tools for group gatherings with a soaring company valuation at S 9 billion, more than former giants like nited Airlines.

While our Courts shut down business on 16 March except for emergency applications, they too have been stepping into the innovation space with remote hearings through Pexip. Hopefully, more advanced technology systems will permit remote hearings for witness trials in the weeks ahead.

So, re ecting on my lockdown experience, we have undoubtedly acquitted ourselves better than expected and when all settles down there will inevitably be changes to our traditional work life. I think it is too early to predict such changes and that will ultimately need to be informed by considered re ection on our experiences and careful weighing up of the pros and cons at the end of this saga. Meanwhile, as Robert Frost summed up what he learned from life in three words; “It goes on”.

Kevin O’Higgins – Principal, Kevin O’Higgins Solicitors My lockdown experiences have, I expect, been no di erent to many colleagues.

I have a suburban practice in Blackrock Village where my work is, in the main, private client with probate, property, landlord and tenant being the mainstay of work through the door.

The then Taoiseach’s speech to the nation was avidly watched as we wondered what it meant for us all in practice. nitially, for the rst week or so I endeavoured to work from home and piled up suitable les. appreciated that this was an easier task for people like me, as my children are scattered with only one still at home. I could only imagine how much more difficult it must be for colleagues juggling between working from home, managing house bound school children, home schooling and inevitably juggling all of this with their partner presumably in the same boat.

To their credit, the Law Society response and that of our President Michele O’Boyle in providing timely, good, sound and sage advice on the many practical issues was very helpful and appreciated. Throughout this period there will have been 38 separate presidential messages, a huge investment of concern for colleagues.

The fact that we were classi ed as providers of essential services was also of huge assistance in that we were enabled to get though the daily Garda checks to and from work. aving a uieter office was also a bonus enabling those les which had been neglecting to gain my attention. e learnt how to do things di erently and the joys of Zoom. It begs the question will we ever return to the old ways? Certainly, why bother with a time consuming meeting when an efficient 4 minute virtual meeting can be nearly as e ective.

What has been gratifying is the genuine concern shown amongst the legal community for each other for the wellbeing of all. The virus is a common leveller from which no one is immune and the prevailing sense that we are all in this together has been galvanising.

For sure we will never forget how practice has been during the pandemic, perhaps a watermark of change forever.

Summer 2020 dsba.ie

Practice Management/News

Gerard O’Connell – State Solicitor, Chief State Solicitor's Office When I look back over my iPhone photo gallery often nd myself going back to what is probably the last pre-pandemic photo on my phone. t is from March 5th: World Book Day. My twin eight-year-old daughters are heading out to school dressed as characters in The Lion, The Witch and the Wardrobe from CS Lewis’s The Chronicles of Narnia while not to be out done their four-year-old brother is a vision from head to toe in green as Gekko from PJ Masks. The only care or worry we seemed to have on our minds that morning was whether my wife’s painstaking e orts at costume design would survive the school run. The White Witch’s cardboard crown and the eponymous wardrobe being particularly vulnerable!

At that point all our troubles seemed so far away.

However the news of an escalating global health crisis wasn’t far from the nightly conversation around the nation’s kitchen tables.

As the crisis morphed into a pandemic the reaction of the State was to marshal the full complement of its legislative, executive and regulatory powers in order to protect the health of her citizens, as a solicitor in the full time service of the State it was a privilege to have been able to play a tiny part in the collective e ort.

Our office, The Chief State Solicitor’s Office CSSO has remained open throughout the emergency period. The show simply had to go on. Some of our colleagues were engaged on a day to day basis with legal services connected with the Covid-19 crisis. The provision of legal services to support the delivery of Government services or that are connected with ongoing critical transactions or advisory work to support

Government is part of the day to day work of CSSO, in time of a crisis it was even more critical. As a relative newcomer to the CSSO I have been struck by the response to Covid-19 from my colleagues both within the Office and throughout the wider Civil Service.

To quote the last written words of General Michael Collins: “The people here are splendid”.

Salvation has come for many of us in the form of technology. Video platforming and teleconferencing are now essential to the working day. The blurring of the lines between home and the workplace has indeed presented challenges but the trade-o of having more time with one’s children is a considerable win.

We appreciate the little things a bit more. In my working week I would correspond with practitioners from the four corners of Ireland. I’ve noticed a bit of a return to civility, kindness and collegiality.

Correspondence invariably begins with an enquiry as to the health and wellbeing of you and your family. It is sincerely meant and always appreciated.

Above all else the past few months has shown how lucky those of us are to have come out the other end unscathed both in nancial terms and in terms of health.

Thankfully there is light now at the other side of the tunnel. esterday evening nalised the arrangements for the Cúl Camp at our local GAA club. Within 2 hours over 9 of the places had been snapped up, a great sign that life is somewhat coming back to normal.

The blurring of the lines between home and the workplace has indeed presented challenges but the trade-o of having more time with one’s children is a considerable win the Parchment 9

Áine Hynes – Partner, St. John Solicitors

During this time, and indeed since, there has been no slowdown in access to the High Court under the President of the High Court’s Wardship jurisdiction to protect the rights of vulnerable persons

The gradual phasing into full lockdown between the 12th and the 27th March 2020 gave us time to ensure that our office was fully operational to facilitate working from home.

The last laptops in Dublin were secured; secretarial sta were set up with remote dictation, and T worked all-out to ensure we all had full remote access to our systems. The level of collaboration from our employees was remarkable. Surprise bonuses included unsolicited o ers from employees to take wage reductions, a rent holiday and hanging ower baskets from the landlord Between the 12th of March and the 27th of March, while high level discussions were taking place between the Courts Service, the Judiciary, the Bar and the Law Society as to how to keep the Judicial system running and while mock hearings were being tested with Pexip, the rights of patients detained in psychiatric institutions under the Mental Health Act, simply could not wait. By the 18th of March, I found myself Chairing and managing remote Tribunal hearings, by telephone, taking evidence from Consultant Psychiatrists and mentally disordered patients, hearing complex legal submissions and objections over the phone and delivering written decisions via the Mental Health Commission secure system, to ensure that the rights of patients detained under the Mental Health Act could be vindicated.

During this time, and indeed since, there has been no slowdown in access to the High Court under the President of the High Court’s Wardship jurisdiction to protect the rights of vulnerable persons. We attended the empty halls of the High Court on an almost daily basis during the lockdown to deal with urgent vulnerable adult cases. Not enough can be said for the input of the Courts Services, the ards of Court office and the eneral Solicitor’s office in the work they did to ensure these cases could continue to run. ealth Preservation and Protection and Other mergency Measures n The Public nterest Act this Act provides for the detention and isolation of those su ering from an infectious disease to prevent the spread of an infectious disease. As solicitors for the S , we attended meetings and brie ngs, deliberating on how to apply the provisions of the Act to detain persons who would pose a risk to others. Happily, I can report that I have not received a single instruction to detain a person under the legislation. hich brings me to my point the emergency brought out the very best in us. While we may not have always found the perfect solutions, each of us did our part for each other, working together efficiently and in the greater public interest to prevent the spread of Covid-19 applying practical collaborative solutions to make law work in the time of Covid-19. n my view, we are privileged witnesses to Law and Love in the time of Covid.

Julie Doyle, Solicitor When the Parchment committee oated the idea about sharing our collective lockdown experiences during our recent 10 the Parchment

Zoom meeting, I was slightly reticent at the prospect.

Instantly I could hear my favourite Sesame Street jingle in my head, you know the one that accompanied a screen divided into four squares ‘…one of these kids is doing her own thing…’. You see, I have been quietly doing my own thing for the last few months.

Last September, for a myriad of reasons, I took a career break.

After my initial slow down, I got itchy feet. As people who know me will attest, I like to be busy, so I enrolled in an online Masters in Education. I had established a good routine, studying in the morning, collecting my son from school in the afternoon, online evening lectures. I even got a dog! All quite idyllic really.

As Covid-19 began to hit the headlines, was understandably concerned as I fell into the ‘at risk’ category. One Thursday morning, I had popped up to UCD library to do some research. It was eerily quiet, almost post-apocalyptic. n the library, one chap was loudly spluttering without any coughing etiquette, and I watched in horror as he went about touching surfaces and doors. At this stage my paranoia about the virus and its unknown capabilities was palpable. I felt uneasy and panicked so I had to get out of there. My brother was working on the frontline in the UK who were at that stage severely lagging behind the Irish reaction so my evening calls with him about what he was already seeing had made the virus more real. I reached my car and heard the lockdown announcement on the radio.

That trip to UCD was my last day out in public as I entered the cocoon until the end of June, where I went to the shop for the rst time The irony of the lockdown was that I had already reached the blinding realisation last year that I needed to slow down and re-evaluate my priorities, which seems to be a universal life lesson learnt by many during the lockdown, whereas my idyllic life became suddenly hectic. A juggle of the Masters academic calendar meant more assignments and more research s uee ed in alongside daily home-school daily battles.

As a cocooner, my 2km limit was restricted to circular walks around the estate with the dog at the least busy of times, masked up like a highwayman.

We desperately missed our families in Mayo and Sligo but like everyone else subscribed to group video calls and quizzes to relieve the boredom. With parents who were cocooning and vulnerable, we steeled our emotions against the loneliness of that distance. I even spent part of my time making calls to assist my sister and brother-in-law who were voluntarily -d printing PPE visors for places in need in Mayo and Sligo, locating acetate or responding to a need. There was a real feeling of helplessness when faced with the stories of our friends on the frontline who were courageously facing danger every day, compelling us do something, albeit in a small way, beyond a weekly clap. Now that most restrictions have been lifted, I have managed to emulate Steve McQueen and executed the Great scape to Mayo so that we can walk among the elds and revive our agging spirits but remain cautious about what lies ahead. My brother still calls to tell us about his day, the colleagues or the patients he has lost or the ones that have recovered, but the message remains the same, we need to work together to stave o complacency and stay safe.

Summer 2020 dsba.ie

Practice Management/News

Keith Walsh – Principal, Keith Walsh Solicitors Lockdown came with many unexpected gifts time to think, more time with family, more time to talk to clients.

It also came with many unexpected difficulties time to think, more time with family, more time to talk to clients. But the one thing I least expected was the increase in the virtual time spent with other family lawyers and the resulting increase in collegiality among family lawyers.

Like many others, my experience up to now had been that the more time I spent with family lawyers the less collegial I felt afterwards. But perhaps it was a mild strain of Covid-19 or it could have been that we’re all just more sociable during a pandemic. This being my rst pandemic couldn’t be sure. t may have been partly due to the joy of nding and using a mute button in virtual meetings both for myself and for others. Maybe it was the complete lack of anything else to do except get on with each other but during the lockdown I encountered a warm fuzzy feeling which I had not up to then associated with my colleagues in the family courts.

But there really was a serious reason for this increased collegiality, if not for the warm and fuzzy feeling which may partially have been due to the intry’s excellent delivery service during lockdown , we were and are all in it together and when things looked bleakest, the Family Lawyers Association, the Child and Family Committee of the Law Society, the DSBA and family law practitioners from all over reland, even Cork it only took a pandemic got together to help each other out.

Nuala Jackson, Paul McCarthy, Helen Coughlan, Sean Ó hUallacháin, Sara Phelan, Adrienne Cawley, Eithne Hegarty, Rachel Baldwin, Sinead Behan, ennifer Cu e, Aidan eynolds, eirdre Burke, Brendan Dillon, Eilis Barry and FLAC and Louise Crowley of UCC Family Law Clinic among many others led the charge introducing new guidelines for access, guidelines to assist family lawyers, creating family law resources hubs, lobbying the Courts Service, organising webinars and generally keeping the family lawyers’ spirits up during a tough time when the courts were closed and nobody really knew what was happening next.

The role of the Family Lawyers Association, the DSBA and the Law Society in encouraging, organising and participating in pilot remote courts kept us all busy over the aster weekend and led to the rst remote or virtual divorces being granted which provided clients and colleagues with some light at the end of the tunnel.

The technological star of the Covid show for family lawyers was not Zoom or Pexip or Microsoft Teams, it was instead Justin Spain’s infamous family lawyers whatsapp group which he moderated with an uncharacteristically heavy hand. His normally twinkly personality was not in evidence as he favoured the old testament rather than the new testament. His chosen system of discipline owed more to soccer rather than rugby with no sin bins but a simple yellow card red card system for unruly whatsappers who strayed from

Remote courts kept us all busy over the Easter weekend and led to the rst remote or virtual divorces being granted which provided clients and colleagues with some light at the end of the tunnel the one true faith of purely family law topics. Those who wandered into less serious matters such as rants on the importance of hairdressers very popular , posting funny videos, putting up pet photos or even posting a classical music recital for Easter were shown the yellow card and serial o enders risked expulsion. appily it never came to that and the gallows humour that is the hallmark of the family lawyer shone through. Justin and his whatsapp group kept us all going through the lockdown and into the lifting of restrictions. Thank you Justin, thank you family lawyers, this lockdown legacy of increased collegiality and craic will last longer than Covid-19.

John Geary – Principal, J.V. Geary Solicitors Where better to spend the entire lockdown than on the edge of Clew Bay, County Mayo?

My practice is in Castlebar but I live a few miles outside Westport.

There are 5 solicitors in my practice and when the lockdown came we were thankfully immediately able to all work from home. We all had laptops and access to les remotely so the transition from office to kitchen table was relatively seamless.

Like many others, I used the lockdown to catch up on myself and deal with correspondence and les that had been put on the long nger due to pressures of work.

This was liberating and the time during April and May was really a odsend you would never normally get that opportunity to catch up!

Spending time with family was what made the lockdown so special for me. I got back on my bike and started exercising again something hadn’t done for years. am usually in Dublin every week with Court and I missed my visits to the capital from mid March onwards.

I won’t forget the many blissful days where my phone would sit in silence and there were no pages of messages at the office to follow up on. Business fell o a cli at the end of March. All property transactions froze or were abandoned. Thankfully, that is now changing as new business has begun to ow again.

I also won’t forget a conference call I had on a Court of Appeal Call Over during the lockdown. I was very new to such online Call Overs and forgot to turn o my microphone whilst waiting for my case to be called.

Ms. Justice Caroline Costello had to identify me and pull me up on the fact that I had left my speaker on and it was giving feedback on the call. I could have died with embarrassment.

The lockdown experience was tough but it had many advantages and I think most colleagues will be all the better for what we have been through. Sadly however, not all will. P the Parchment 11

Kerrygold

DSBA PRESIDENT SPREADING POST LOCKDOWN HOPE AND CONFIDENCE Kevin O’Higgins catches up Tony O’Sullivan, a partner in Beauchamps and the 83rd President of the Dublin Solicitors Bar Association

N

ow you don’t need me to tell you that the DSBA is a hugely vibrant and busy Bar Association with more members and committees than each and every other bar association put together on this island. But it’s a broad church too.

Open to one and all with any member capable of becoming its president. The only requirement is to be a solicitor practising amongst us with a commitment to his or her profession and the willingness to work for the common good of, rst and foremost, our colleagues throughout Dublin, and the greater profession generally.

All of which is a long winded introduction to our current esteemed President, hailing as he does, from the village of Killorglin, in the Kingdom of Kerry. His famous county man John B Keane described someone from his county su ering an inferiority complex as thinking they are just as good as everyone else. But, in fairness to Tony, complex or not, he must always have felt the draw of our capital city. For unlike the majority of his class from school in the libertarian halls of 12 the Parchment

t’s a terri c rm in which to work. It suits my skill set and I have a great sense of belonging

the Intermediate School, Killorglin, he one of only a handful of his year who ventured to the Fair City for Third Level. So UCD beckoned.

He remarks “It was the international element to the BCL degree that attracted me. No other university was o ering the extensive international element and an Erasmus programme at the time.”

He agrees that he took to college life with zeal and got involved in everything that was going on. Unusually for a Kerry native, in sport his school while having gaelic games as a corner stone, had also embraced the oval ball where he played at 13. Tony carried his love of rugby to UCD and throughout his life.

Tony was delighted to get chosen to do a year in Melbourne University as part of his degree where he also worked as a paralegal with Corrs Chambers Westgarth, an Australian behemoth with over 600 lawyers. This was followed then, the following year, with a summer stint interning with Chief Judge Hatter in the Central District of California, based in Los Angeles.

Tony recalls: “Judge Hatter combined both a strong respect for the rule of law and

Summer 2020 dsba.ie Kevin O'Higgins is a former President of the Law Society of Ireland and the DSBA. He is principal of Kevin O’Higgins Solicitors, Blackrock

Cross Examination

the Parchment 13

The DSBA continues to have a strong working relationship with the LSRA and I think it important to note that the introduction of the LS A while long in gestation shows a willingness of the legal profession to embrace change compassion for minorities but my abiding memory was of the fact that he was a leader in the judicial revolt against mandatory sentencing laws. I would share that view that sentencing should be the preserve of the judiciary.”

So with those impressive enhancements to his CV, when he knocked on the doors of William Fry’s in search of a traineeship, his world view and global dimension made him stand out.

The lad from Killorglin was hired and he would never look back. Tony was to spend a decade in Fry's. “It was a period I greatly enjoyed, superb training, great experience and a dynamic and driven bunch of people.” Those with whom he worked closely included the late Nora White, Neville O’Byrne and Owen O’Connell, P. Property had become his thing, an area in 14 the Parchment

which he excelled. Of course, as we all know to our chagrin during that time Dublin was on re with deals happening every week and invariably Fry’s played some part in many of the transactions stacking up during that halcyon period.

By 2008 Tony was making quite a name for himself in property circles and when the relatively new international rm of Maples & Calder came calling with a proposition of heading up their Commercial Property Group he was open to the overture. He spent an exhilarating six years there servicing its international clients, their funds and investment portfolios.

It’s not clear whether Tony found Beauchamps or Beauchamps found him.

What’s true though is that John White, their managing partner, usually achieves what he sets out to accomplish!

In 2014, Tony was asked to join their Commercial Property and Construction Group, which he now heads. He was delighted to rise to the new challenge. “It’s a terri c rm in which to work. t suits my skill set and I have a great sense of belonging”.

When Tony became president of the DSBA he was contacted out of the blue

by Finders, the heir hunters. They work with solicitors in tracing bene ciaries.

They o ered to delve into his family tree and unearthed a wealth of unknown family information which he will treasure.

The presidential year kicks o in late October. November, then typically, is a busy time in the legal calendar, with a lull in December, before cranking up in late January with the stand out event being the dinner hosted by the president for the entire Dublin based judiciary. Back then, Covid-19 was an Asian-speci c problem to which we were all oblivious. Tony recalls: “The Judges’ Dinner was a great success with judges in every court present. It is a great selling card for the Association. We have no agenda merely to provide a convivial opportunity for our Association, on behalf of our Dublin colleagues, and to thank our judiciary, on behalf of our membership, for the work they do.”

Summer 2020 dsba.ie

Cross Examination

Photography: Bryan Meade

Tony was also blessed in his good fortune in altering the date for the DSBA Dinner.

Normally this would have been in May or June but Tony, by pure chance, had settled on late February. The night was also a resounding success, without too much trepidation over the virus. That was to come a fortnight later. The dinner coincided with the Book Awards with Garda Commissioner Drew Harris and Mr Justice Peter Charleton as honoured guests. It was an evening too when the brilliance of the recently deceased Senior Counsel, Paul Anthony McDermott was remembered in a special way.

Like every practice throughout the County and City of Dublin, Beauchamps have had to bow to the virulence of the disease with the majority continuing to work from home.

“I remember, though, the prescience of our office manager in mid ebruary, startling the partners' meeting with the recommendation that we would need then to look at enabling sta to work from home as Covid-19 was emerging as a threat to Europe. He was more in tune then than the rest of us.”

The milestones which Tony had agged to occur during his presidential year have been somewhat overshadowed. They were/ are Brexit, the new overnment and its law reform agenda following the inconclusive General Election in February, and the emergence of the LS A Legal Services egularity Authority into our lives. Says Tony: “The DSBA will continue to lead the ght for pride in the solicitors’ profession by emphasising the work of solicitors and their contribution to the prosperity of the economy, society, and our justice system. The fabric of society depends on legal rights and obligations being validly created and e ectively enforced . On the role of the LSRA Tony reiterates the importance of dialogue and engagement something initiated so e ectively by one of his predecessors Robert Ryan. “The DSBA continues to have a strong working relationship with the LSRA and I think it is important to note that the introduction of the LS A while long in gestation shows a willingness of the legal profession to embrace change”.

Tony imbues a huge work ethic. Typically ve and a half or six days a week. Since Covid-19 he has adopted seamlessly to working from home. This he does alongside his wife, the charming and personable, eirdre alsh in another part of their lovely anelagh home . eirdre, also a solicitor, has graced a number of the big rms and has recently taken up a very senior position as Deputy Assistant in the Chief State Solicitor’s Office. Like Tony, she is a vastly experienced property lawyer

Tony O’Sullivan at a glance

AGE 45 MARRIED Deirdre Walsh FAVOURITE MOVIE Anything with Bill Murray FAVORITE BAND/MUSIC U2 and Bruce Springsteen FAVOURITE BOOK The Hitchhiker's Guide to the Galaxy FAVOURITE RESTAURANT Angelina's on Percy Place BIGGEST INFLUENCE? The Intermediate School, Killorglin

and being from Mayo, as long as the All Ireland Championship does not put them in opposing positions, they complement each other brilliantly.

Tony’s year, no more than that of President of the Law Society, has been helter skelter exploding with much vim and gusto last winter and suddenly, out of nowhere, being propelled into a strange but, in some ways a weird and wonderful world.

One of the highlights of every president’s year is the Conference, something the SBA has kept going since rst venturing abroad in the early 19 s. An opportunity to experience another legal culture and meet our colleagues in the chosen host city.

Lisbon was clearly an inspired choice by Tony, decided after painstaking research. But now there is a question mark over whether it will happen. Yet Tony is decidedly upbeat and con dent that it will happen and urges colleagues to stick with it.

“As of now the Conference in Lisbon is going ahead, but all plans will remain subject to compliance with Government and HSE guidelines. Lisbon has done a fantastic job in dealing with Covid-19 and we are monitoring closely the easing of quarantine obligations in both Dublin and Lisbon.” e concludes by remarking - thought that my presidential year would be dominated by those important milestones LS A, the udicial Council, Brexit, Boris, Trump and the new administration here.

My simple judgement was how we dealt with such events would de ne and how it would be remembered. Yet how wrong I was. I believe that 2020 will be remembered for one thing and that is how we came together to help each other deal with Covid-19. As the great man said “In years to come let them say to us when we were at our worst, we were at our best.” P the Parchment 15

Julie Breen is the Professional Wellbeing Project Coordinator at the Law Society of Ireland

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ovid-19 has impacted all of us in di erent ways. t is most likely a ecting how you live your life and disrupting your usual routine. ou may be su ering from loneliness, stress, anxiety or worry. t may be a particularly difficult period for those with existing mental health problems, aggravating symptoms latent or manifest. t is particularly important, therefore, that we look after ourselves and others. LegalMind can provide you with this support.

LegalMind LegalMind is a new, independent, low-cost mental health service accessible to solicitors and their dependants at any time of the day or night, provided on a con dential basis. t has been developed by high uality mental health providers Spectrum Life in partnership with Spectrum Mental ealth.

Supporting the launch of the new service, President of the Law Society of reland Michele O’Boyle said, t is important now, more than ever, to check in on our wellbeing LegalMind aims to do that by supporting mental health and resilience in the legal community. ighlighting two key aspects of the service, Ms. O’Boyle said, mportantly, this service is independent to the Law Society and available on a con dential basis. hope my colleagues will utilise this valuable service when needed.

Supports Available Through LegalMind, solicitors and their dependants can access in-the-moment 4 7 phone support with 16 the Parchment

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The rst LegalMind appointment is free of charge, with a reduced fee of for further therapeutic appointments. These can take place within a km geographical radius of your home and will be arranged within ve working days. Currently, therapy sessions are taking place via online video and or telephone. ace-to-face counselling sessions will resume once the present health emergency has passed.

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Solicitors can also register on LegalMind’s online portal for complimentary access to information and content about physical wellness, wellbeing, mental health, and wellbeing events. urther details on this service are available on the Law Society Professional ellbeing ub www.lawsociety.ie Legalmind P

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Contract Of Employment: The Burden Of Proof Cian Beecher and Shane McCarthy assess the case of Marek Balans v Tesco reland Limited C which concerned an appeal to the igh Court against a decision of the Labour Court by an employee who was not paid in accordance with the terms of his contract

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he Payment of ages Act, 1991 prohibits unlawful deductions from an employee’s wages. Section 6 provides that where the total amount of wages paid is less than the total amount that is properly payable, the de ciency or non-payment should be treated as an unlawful deduction unless it is due to an error of computation. n this case, the igh Court considered whether the Act should exclude situations where there is an error in the contract itself.

Background The employee, a night worker in a Tesco distribution centre, was initially employed in 1 on a part-time contract covering the night shift three days per week. e was o ered a full-time role in 1 and the employment contract recorded a basic rate of pay at 9.69 per hour. The 1 contract also provided for a premium payment of in respect of unsocial hours hours worked between and 6 and a further premium of in respect of “hours worked between Saturday and Sunday”.

The parties entered into a new contract in une 1 which became the basis for this dispute. The 1 contract provided for a basic rate of pay at 11. 7 per hour however, the employer contended that this was an error in that the basic rate was calculated in a manner 18 the Parchment

which incorrectly incorporated the premium for unsocial hours which the employee had received under the 1 contract. The terms of this new contract were not upheld by the employer as the employee was paid 1 . 9 per hour, rather than the 11. 7 per hour rate that was expressly included in the contract.

The employee made a complaint under the employer’s internal grievance system in October 16.

The complaint was dismissed in March 17, as was the subse uent appeal in May 17. n August, 17, the employee made the following complaints to the orkplace elations Commission C 1. a breach of the Payment of ages Act 1991 relating to an alleged impermissible deduction of wages . an entitlement to a premium for “hours worked between Saturday and Sunday” and the meaning of this phrase in his contract of employment . an order for compensation in relation to an unresolved grievance and 4. an application for an extension of time within which to make a claim for compensation.

Decision of the WRC The C found that the basic rate of 11. 7 as set out in the 1 contract, despite being accepted as an erroneous gure, should still be the rate payable to the employee. The fact that the employer paid the employee 1 . 9 per hour as opposed to 11. 7 was

Summer 2020 dsba.ie Cian Beecher is a partner in the Employment Law Group and head of Arthur Cox’s Commercial Department. Shane McCarthy is an associate at Arthur Cox

held to be an unlawful deduction under the Payment of ages Act 1991.

The WRC recommended that the employer pay the employee redress of 1, under the ndustrial elations Act, 1969 for the manner in which its grievance process was operated.

The C found that there was no reasonable cause to justify an extension of the six-month period for the purposes of lodging a claim with the C. The C also found that the employee’s claim that “hours worked between Saturday and Sunday” included the hours from midnight on riday Saturday until 6 a.m. on Saturday morning.

Both parties appealed to the Labour Court.

Decision of the Labour Court The Labour Court found that the enforcement of contract under common law is not a matter for the Labour Court. n order to ground a claim under the 1991 Act, the wages concerned must be properly payable’. The Labour Court disagreed with the C regarding the employee’s rate of pay and found that no unlawful deduction had been made as the rate of pay speci ed in the plainti ’s contract of employment arose as a result of a computational error and was not properly payable.

The Labour Court concurred with the C on the extension of time issue. t found that the employer’s

grievance practice was procedurally sound and overturned the 1, award given out by the C. ith regards to the “hours worked between Saturday and Sunday”, the Labour Court found that, while the wording could be expressed more clearly, the premium was not payable for hours worked from midnight on riday until 6 a.m. on Saturday morning.

The High Court The employee appealed to the igh Court claiming that the Labour Court had purported to rectify the contract and exercise a jurisdiction it did not enjoy.

The employee argued that the terms of the contract were clear and there was nothing computational about deliberately paying someone less than is speci ed in a contract of employment.

The employer argued that there was no indication that the employee understood that he was to get a wage increase upon signing the 1 contract and pointed out that the employee did not make any complaint regarding his wages from une 1 to October 16. Counsel for the employer argued that the Labour Court made a nding of fact that there was an error in the gure set out in the contract, a conclusion to which it was entitled to arrive. The employer stressed that if they were to be bound by this error that there could be “far-reaching implications” for the company in terms of other employees’ wages.

Employment Law

The employee argued that the terms of the contract were clear and there was nothing computational about deliberately paying someone less than is speci ed in a contract of employment the Parchment 19

The igh Court held that in con ating these issues, the Labour Court fell into error in failing to appropriately assess the wages properly payable to the appellant within the meaning of the 1991 Act The igh Court Mac rath found stated that central to the Court’s analysis was the concept of wages properly payable and the circumstances in which any de ciency in respect of such payment arose as a result of an error of computation. The udge found that the Labour Court appeared to confuse these two central issues It seems to me, however, that where the difficulty arises is that the Labour Court, rather than making the necessary assessment of wages properly payable under the 1991 Act proceeded to perhaps unwittingly conflate that issue with the separate issue of whether there had been a deduction and whether that deduction came within the exception governed by s. 5(6).

The igh Court held that in con ating these issues, the Labour Court fell into error in failing to appropriately assess the wages properly payable to the appellant within the meaning of the 1991 Act. The igh Court accepted the employee’s argument that any error made in the drafting of the contract was not to be e uated with a de ciency or non-payment attributable to a computational error. The Court also found that the Labour Court had erred in law by assuming or inferring that the apparent acceptance by the employee of payment of the lesser sum automatically meant that this was the sum which he was liable to be paid. The Court held that the proper and full resolution of this issue re uired more extensive factual and legal analysis by the Labour Court, but was also clear that this did not mean that the nal result had to be di erent.

On the uestion of the premium payment, the igh Court held that there was ade uate evidence before 20 the Parchment

the Labour Court for it to determine that the phrase “hours worked between Saturday and Sunday” did not include hours worked between midnight on riday to 6am on Saturday and the Labour Court was entitled to come to that conclusion.

On the extension of time point, the Court found the employee had not claimed he was lulled into a false sense of security by engaging in the internal grievance procedure and he did not claim that he had relied on a representation that the respondent would not rely on the relevant time limits. The Court was again satis ed that there was ade uate evidence available to the Labour Court to allow it to conclude as it did.

The igh Court allowed the appeal on the rst ground the Payment of ages claim and remitted the matter to the Labour Court for further consideration.

The Court noting that the Labour Court might ultimately nd that the appellant’s case was without merit but that was a matter for the Labour Court to decide and the igh Court was not expressing a view either way in relation to the substantive uestion.

Commentary eliberately paying someone less than the amount speci ed in a contract of employment will not be considered a computational error’ for the purposes of the exception set out in section 6 of the 1991 Act. While an employment contract may not be the sole determinant of what is properly payable’ within the meaning of the 1991 Act where an employee is not paid in accordance with the terms of his her contract, the burden of proof will lie with the employer to prove the amount that is properly payable. P

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Updated DSBA Precedent Deed of Separation Fiona Quigley BL provides an overview to the recently published and updated DSBA draft Deed of Separation

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eeds of Separation or Separation Agreements are used regularly in practice to record the details of a legal agreement reached between parties to a marital breakdown as to how to separate and regulate their a airs. The SBA eed of Separation had last been updated in 1 . This recent update therefore takes account of changes that have occurred since then.

The amily Law Act 19, introduced at the end of last year, reduced the time-limits for divorce applications in reland. Parties no longer have to wait at least four years to commence divorce proceedings. nstead, they must now be living separate and apart for two out of the preceding three years prior to divorce proceedings being issued. This reduction in timeframe for divorce is likely to reduce the volume of parties seeking a judicial separation. t is anticipated that clients may simply prefer to simply wait for a divorce, rather than incurring the expense and inconvenience of two sets of court proceedings. n light of this legislative change, therefore, it is envisaged that eeds of Separation may become more prevalent in practice.

Solicitors may nd themselves drafting Separation Agreements more often as they become an attractive option to clients, who wish to avoid going to court twice. The SBA’s update was prepared with this in mind.

The new precedent eed of Separation includes amendments that are primarily of a minor nature. n general, its provisions have been modernised, and

22 the Parchment

importantly, it has been updated to re ect the contents of the Marriage Act 1 and the gender-neutral status of marriage, whereby now marriage is open to two persons, whether they are of the same or opposite sex.

Any necessary changes have also been made to re ect new legislation in this area, however few developments have occurred in recent years that have had a signi cant bearing on the content of Separation Agreements.

It is worth noting at the outset that this precedent operates only as a guide to practitioners. very case is fact speci c and the draft eed does not cater to all eventualities in its provisions. Practitioners should also be mindful that a Deed of Separation may not be suitable for the particular circumstances of their client’s case, particularly where pension adjustment orders are re uired, as trustees of pension schemes will not be bound by the parties’ agreement. eeds of Separation, however, are binding contracts upon each spouse and once entered into, parties are precluded from bringing judicial separation proceedings. A eed of Separation does not divorce the parties and while its provisions re ect their agreement and intention, they are not binding on a Court in any subsequent divorce application as the Court has to be ultimately satis ed as to proper provision.

Below is a brief summary of the respective sections of the SBA’s precedent eed of Separation.

Introductory Paragraphs The introductory sections of the eed set out the background details pertaining to the parties, including

Summer 2020 dsba.ie Fiona Quigley BL is a practising barrister with a specialty in general practice and family law

their personal details, the date of marriage, the name and ages of any children and the date upon which the parties began living separate and apart. Traditionally, the Deed would refer to one party as “the Husband” and the other party as the ife . This has been updated to refer to the spouses as “Spouse A” and Spouse B in the precedent. The Marriage Act 1 allows opposite and same sex couples to marry, thus it is more appropriate for the draft eed to re ect this legislative development. Practitioners can, of course, continue to use the terms usband and ife if preferred by the client or better suited to the circumstances of the case.

1. General Provisions This section simply contains a provision whereby the parties acknowledge their agreement to live separate and apart. t records their agreement not to annoy, disturb or interfere with one another in their manner of living, their profession or business simply put, to act as if they are unmarried. A provision may also be included whereby the parties agree not to visit the place where the other resides, unless with their express invitation.

2. Custody/Access Provisions This is a straightforward section of the eed, which contains sample clauses relating to custody and access matters concerning the parties’ children. There are many alternative provisions set out therein. or instance, the parties may choose to con rm their

Family Law

status as joint guardians and custodians of the children and agree simply to co-parent on an e ual basis. Perhaps more commonly, parties may con rm joint custody as between them but agree that one spouse shall have primary day-to-day care and control of the children, as the children primarily reside with that spouse. Access to the other spouse can then be set out speci cally in the eed, with various draft provisions as to how an access arrangement may operate, including options regarding holidays, birthdays and special occasions.

The eed also contains draft general conditions of access, including provisions whereby the parties agree to consult one another on issues pertaining to the children’s welfare. inally, this section of the precedent contains sample clauses concerning the removal of the parties’ children from the jurisdiction for holiday purposes and matters relating to the issuing and holding of the children’s passports.

3. Maintenance Clauses The third section of the draft eed of Separation deals with the agreement reached by the parties in relation to maintenance. t provides draft clauses relating to the payment of maintenance from one spouse to the other, with details as to how same is to operate in practice, including payment by direct debit or standing order. The eed contains clauses whereby the parties may agree for the amount of maintenance to be reviewed annually, but more

A Deed of Separation does not divorce the parties and while its provisions re ect their agreement and intention, they are not binding on a Court in any subsequent divorce application

the Parchment 23

It is clear from the foregoing that the SBA’s precedent Deed of Separation has not drastically changed with this recent review, however its provisions have generally been updated and modernised

particularly contains general clauses relating to variation of maintenance where either party has had a signi cant change in circumstances. raft provisions are included to cover the cessation of spousal and child maintenance and the Deed further details a clause regularly included in such agreements whereby the parties agree to share equally the vouched necessary expenses of their children, namely educational, back-to-school, medical, dental and optical expenses.

4. Income Tax This part of the precedent contains alternate provisions to allow the spouses either to elect for joint or single assessment for income tax. here the parties decide to be jointly assessed, the clauses set out which spouse shall be responsible for ling the joint tax returns; the parties may agree to sign all necessary documents required for tax purposes; and they each may indemnify the other against claims made against him or her as a result of the other spouse’s failure to disclose or co-operate.

5. Contents of Family Home and Other Chattels Section 5 of the draft Deed of Separation allows for the parties to come to an agreement regarding the contents of the family home. or instance, draft clauses provide that the household chattels which remain in the family home shall be the sole property of the spouse living there. n the alternative, the parties may choose to list the chattels in a Schedule annexed to the eed, determining therein which of them shall be entitled to each item.

6. Property This part of the eed concerns the property of the parties and it most commonly relates to the family home. t contains draft clauses accounting for the various possibilities that can arise in relation to the parties’ family home including the transfer of a letting from Spouse A to Spouse B; the sale of the family home and the division of the net proceeds of same between the parties; and the transfer of the family home into the parties’ joint names, where it is only held by one of them. t also contains a sample clause providing for the transfer of the family home into the sole name of one of the spouses, where the other spouse s interest is being bought out. There are draft clauses where the family home has already been sold by the parties, or where no family home exists.

This section also deals with the transfer of shares in consideration of a lump sum payment and the payment of a lump sum to settle all claims which one spouse may have over the assets of the other spouse.

7. Responsibility for Debts Section 7 of the draft Deed contains a general clause whereby the parties agree that they will at all times indemnify each other from and against all debts and liabilities heretofore or hereafter incurred by them.

8. Pension Provisions Practitioners will be aware that parties cannot agree between themselves pension adjustment orders, thus retirement or contingent bene t orders cannot 24 the Parchment

be included in a eed of Separation. There are, however, draft provisions set out in this section of the precedent which can be used to indicate the parties’ intention to make certain pension adjustment orders within their divorce application but they will not be binding on the trustees and may not be considered proper provision by the Court at divorce stage. The parties may, however, agree to seek an Order pursuant to section 8B of the amily Law Maintenance of Spouses and Children Act 1976. These are pension preservation orders, whereby an Order is sought from the Court directing that the trustees of either spouse's pension scheme do not regard the separation of the parties as a ground for disqualifying the other from receipt of a bene t under that scheme.

9. Succession Rights Part 9 of the eed concerns the rights of spouses under the Succession Act 196 and contains draft provisions whereby the spouses can agree to surrender their right to any share or legal right in the estate of the other upon their death. t also contains sample clauses whereby one spouse is to put in place or transfer a life insurance policy to the other spouse, or continue to make payments required under an existing policy so that on the death of that spouse, the receiving spouse shall receive a particular sum on foot of this policy.

10. Miscellaneous Provisions The last section of the precedent contains various miscellaneous provisions, including a clause regarding costs, for instance an agreement that the parties bear their own costs connected with the negotiation, preparation and execution of this eed. There is a draft clause setting out a saver for nullity and a provision whereby the parties agree that they shall consent to section 1 1 blocking orders being made in their future divorce application. raft full and nal settlement clauses are also contained herein, however, it is up to the Court in future divorce proceedings whether it views the terms of this Deed as proper provision and it can grant further nancial relief if it feels it appropriate to do so. inally, eeds of Separation must be witnessed, dated and signed by the parties. Mutual eeds of aiver usually accompany the eed of Separation. t is clear from the foregoing that the SBA’s precedent Deed of Separation has not drastically changed with this recent review, however its provisions have generally been updated and modernised. The eed endeavours to cover a wide range of eventualities, enabling practitioners to adapt and amend its draft clauses as required to suit the particular circumstances of their client’s case. t is anticipated that the use of Separation Agreements will increase given the new time frame for divorce applications. The current health crisis, however, may further escalate the demand of clients to separate by way of a eed of Separation.

Limited court sittings, lengthy adjournments and economic concerns may increase the attractiveness of this option to clients seeking some certainty during these difficult times. P

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Standstill Solutions?

Gearoid Carey considers how litigation standstill agreements could be usefully used by businesses caught in the headlights of Covid-19 conse uences

26 the Parchment

Standstill Agreements

Key Issues and Drafting Considerations

Although the Court oďŹƒces have not closed, allowing commencement of proceedings commenced, for many business in the throes of a dispute, from both parties’ perspectives, a standstill agreement can e ectively preserve their position until they can properly consider prospective litigation, especially so where a limitation period may be about to expire. A standstill agreement e ectively provides that, typically for a speci ed period, potential plainti s agree not to issue proceedings in return for the potential defendant agreeing to suspend / extend a limitation period.

There is little Irish authority with regard to standstill agreements, but nglish case law persuasive in reland shows that a properly drafted standstill agreement is likely to be upheld in Ireland.

Any standstill agreement needs to be carefully drafted to ensure it includes all potentially relevant parties.

Although a defendant is not obliged to volunteer potential defendant entities, it should not misrepresent the position either.

Framing the dispute to be covered will be a matter for negotiation between the parties. Plainti s want it to be broadly cast to cover all possible claims, known and unknown. Conversely, defendants seek to keep the dispute narrow so as to make the limitation defence as e ective as possible for other claims. They should also consider including counterclaims in the standstill agreement and, if claims against third parties are envisaged, standstill agreements with them should also be explored.

Summer 2020 dsba.ie Gearoid Carey is a senior associate at Mason Hayes & Curran Solicitors and is a member of the DSBA Commercial Law Committee

The parties also need to be clear whether the limitation period is to be suspended or extended.

Suspension is often the preference because it carves out the duration of the standstill agreement from the limitation period, whereas care needs to be taken where extending the limitation period lest it expire during the currency of the standstill agreement.

Consideration also needs to be given to the e ective period of the standstill agreement. Although a plainti may wish to have it open ended and re uire notice for valid termination, a defendant is likely to prefer a speci c period with automatic expiry thereafter. f that is the approach adopted, a plainti should diarise the date involved. t should also be remembered that, before expiry of the standstill, the parties can always either enter into a subse uent standstill agreement for another speci ed period, or to amend the period of validity of the original standstill agreement.

Parties should also seek to ensure that any other relevant terms are clearly de ned and that de nitions in the standstill agreement are not inconsistent with those used in any underlying agreement between the parties. f consumers are to be parties, an additional degree of care is re uired to ensure that the provisions are appropriate and comply with applicable legal re uirements.

Although a standstill agreement can be short, it is prudent to include the usual boilerplate terms governing law, jurisdiction, counterparts, severability, etc. epending on the legal status of the parties,

Litigation

di erent execution blocks may be re uired and, lest the authority of any signatory be raised subse uently, a warranties and authority clause should also be included.

Benefits rom the perspective of both potential plainti s and defendants, a standstill agreement may be an attractive solution when imminent proceedings would ordinarily make litigation a focus but business critical issues intervene and mandate attention being drawn elsewhere. or plainti s, it allows them to focus on those other more critical and survival-dependent concerns than going through the choreography associated with commencing proceedings, especially where up against possibly being time barred. or defendants, they can immediately focus on their own business critical issues rather than the litigation and can avoid or at least defer the costs that may be incurred in defending litigation as a necessary knee-jerk to proceedings issuing. n both scenarios, the additional time a orded by the standstill agreement may allow the parties to come to an overall resolution. ven if no overall resolution is possible, revisions to the arrangement, such as improved information reporting, a revised repayments schedule, or a re-timetabling of obligations, depending on the speci c circumstances, might minimise some of the issues in dispute and can improve relations. P

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A standstill agreement may be an attractive solution when imminent proceedings would ordinarily make litigation a focus but business critical issues intervene and mandate attention being drawn elsewhere

The Proof of the Pudding…

Keith Walsh analyses the new Programme for Government which he says puts family law front and centre in an overall Courts reform package. However, he wonders will there be any real change?

T

he recently published Programme for Government has prioritised the reform of the family court system to ensure that proceedings involving children are dealt with in a manner which recognises the unique vulnerability and needs of children.

Unsurprisingly the Programme states that ‘an independent, impartial and efficient judiciary and courts system is critical to our democracy.’

The government programme sets out the assumption that costs associated with the Irish legal system, as well as the time involved in cases, are more expensive and take longer than in peer countries and they pledge to address that as well as promising to make greater use of alternative dispute resolution across all courts Speci c commitments include promises to • Enact a Family Court Bill to create a new dedicated Family Court within the existing court structure and provide for court procedures that support a less adversarial resolution of disputes. ote the publication of the Family Court Bill has been awaited for the past years • Build a new Family Law Court building in Dublin and ensure that court facilities across the country are suitable for family law hearings so these hearings can be held separately from other cases. ote the site at ammond Lane on the Smith eld side of Church St., ublin 7 remains undeveloped. The reference to separate family law hearings may indicate a separate system or division for family law cases which is to be welcomed. It

28 the Parchment

•

• • • •

•

•

may also involve the consolidation of Family Law Courts from existing District and Circuit Courts to a smaller number of designated and specialist family law court centres and this new structure will presumably be contained in the draft amily Court Bill .

Clarify and strengthen contempt of court sanctions for violations on social media.

Legislate to introduce a statutory o ence of perjury, to make this crime easier to prosecute.

Modernise the law on the administration of oaths in judicial and other proceedings.

Establish a new Planning and Environmental Law Court managed by specialist judges and on the same basis of the existing Commercial Court model.

Establish a working group to consider the number of and type of judges re uired to ensure the efficient administration of justice over the next ve years.

Enact the Judicial Appointments Commission Bill within the rst six months of overnment. owever, we will engage with stakeholders to make appropriate amendments to the current Bill to ensure that it enjoys broad support. These would include ensuring that the Chief ustice is the ex-offico chairperson of the body.

Implement reforms to the administration of civil justice in the State covering matters such as the more efficient and e ective deployment of court and judicial resources. This will be guided by the report of the group chaired by the former President of the High Court, Mr. Justice Peter Kelly.

Independently examine the option of a dedicated system of public defenders.

Summer 2020 dsba.ie Keith Walsh is a former President of the DSBA. He is also a former chairman of the Child and Family Law Committee of the Law Society. He is author of Divorce and Judicial Separation Proceedings in the Circuit Court published by Bloomsbury Professional

Legal Politics

• Introduce the necessary legislative reforms of the personal insolvency system

Domestic and Sexual Violence – More Change Likely The Programme for Government states that there is an epidemic of domestic, sexual and gender-based violence. Building on the rati cation of the stanbul Convention, the government intends to work with Os and services to evelop the third ational Strategy on omestic, Sexual and Gender Based Violence which will place a priority on prevention and reduction and will include a ational Preventative Strategy.

• Conduct an immediate audit, to be concluded within nine months of the formation of the Government, of how responsibility for domestic sexual and gender-based violence is segmented across di erent government agencies and develop proposals on what infrastructure is needed to ensure the issue is dealt with in the most e ective manner possible. This audit will be undertaken in conjunction with Os and service providers.

• Implement a plan for future refuge space.

• Investigate the provision of paid leave and social protection provision to victims of domestic violence.

• Learn from the UK model, where the crime of coercive control has been successfully prosecuted since 2015. Invest in a comprehensive training programme for professionals who may have contact with a victim of coercive control, including An Garda Síochána, legal professionals and courts services personnel, to ensure that there is a clear understanding of the nature of this relatively new o ence.

• Legislate to introduce Domestic Homicide Reviews. pdate the Sex O enders Act 1 to ensure that convicted sex o enders are e ectively managed and monitored.

• Enact the Harassment & Harmful Communications Bill as amended in order to outlaw image based sexual abuse and to prevent abusive sharing of intimate images online. mplement the ndings of the O’Malley eview of supports for vulnerable witnesses in sexual violence cases to support victims.

• Adopt and implement a comprehensive strategy to combat trafficking of women and girls.

Conclusion While the proposals contained in the Programme for Government are broadly welcome, the proof, as always, is in the delivery of the proposed reforms.

Family lawyers have listened to many promises about reform of the Family Courts system since the publication of the Law Reform Commission’s Report on the Family Law Courts in 1996. The proposed Family Courts Complex at Hammond Lane has proven to be a white elephant and, while it is hoped that it will be built, it does not appear that any work has yet commenced on the site. The delay of months

then years in publishing the Family Court Bill is also unfortunate. It has still not been published.

In addition, the current Family Law Courts in use in Dublin and in some parts of the country are simply not t for purpose and in need of both a new legislative framework which contains a specialist family law division with a head or chief judge who can champion family law within the judiciary and Courts Service and sufficient resources for family law courts so that mediation and A alternative dispute resolution can be integrated into the system to achieve the best outcomes. The continued provision of childcare courts in the Bridewell and private child law cases in Dolphin House is an ongoing stain on the family law system.

It is very likely that the Legal Aid Board will come under immense pressure following the current Covid-19 pandemic and the ensuing economic recession as many more families su er economic hardship and meet the criteria for legal aid. This is an entirely predictable consequence of the current situation and without a fully and properly functioning system of civil legal aid for family law then the current system or whatever system is put in place will grind to a halt. It is to be hoped that the Legal Aid Board will receive signi cant additional funding. P

While the proposals contained in the Programme for Government are broadly welcome, the proof, as always, is in the delivery of the proposed reforms the Parchment 29

Many a Slip Twixt Cup and Lip Susan Martin delves into the area of asted Costs Orders how they arise and how to avoid them

What is a Wasted Costs Order?

A wasted costs order is an order made against a solicitor personally for costs thrown away in a case.

It can be granted on a solicitor/client basis making it not only horribly expensive but also damaging to reputation. It is therefore worthwhile investigating this topic to manage risk and limit possible damage while keeping the smelling salts to hand.

Know the Law There are a number of elderly judgments on the matter but until recently wasted costs orders were comparatively rare. There were two Supreme Court decisions in 2014 and 2015 which indicated the appetite of the Court to impose wasted costs orders on practitioners for wasting Court time. This was a departure from the previous view which relied on some kind of egregious default by the practitioner.

The High Court has an inherent jurisdiction to make a wasted costs order. There is also a legislative basis for making such an order pursuant to Order 99 Rule 7 of the Rules of the Superior Courts which provides that “If ………..costs have been improperly or without any reasonable cause incurred, or that by reason of any undue delay in proceeding under any judgment or order, or of any misconduct or default of the solicitor, any costs properly incurred have nevertheless proved fruitless to the person incurring the same, the Court may call on the solicitor of the person by whom such costs have been so incurred to show cause why such costs should not be disallowed as between the solicitor and his client and also ……. why the solicitor should not repay to his client any costs which the client may have been ordered to pay any other person, and thereupon may make such order as the justice of the case may require.………”

A recent judgment of McDonald J in Fay v Insolvency Acts I C 16 is instructive in reviewing the type of circumstance in which practitioners may have a wasted costs order made against them.

The case involved an appeal to the High Court by a creditor the Appellant against an Order made in the 30 the Parchment

Circuit Court regarding an arrangement directed by the Court in respect of the Respondent.

The facts of the case are set out in detail in the judgment. The espondent’s rounding Affidavit was prepared by his solicitors and in the usual way exhibited various documents vouching the espondent’s nancial situation including valuations and summary of the Respondent’s expenses.

Before the appeal came on, the solicitor for the Appellant wrote to the Respondent’s solicitor to indicate that some of the documents exhibited in the grounding Affidavit post-dated the swearing of the Affidavit.

The solicitors for the Respondent did not mend their hand and failed to correct the affidavit. urthermore, when the case opened Counsel for the Respondent did not draw the attention of the Court to the defect. hen the espondent’s case nished, the Appellant’s legal team drew the attention of the Court to the fact that the exhibits were created after the date of swearing of the Affidavit.

This was of huge concern to the Court and the Appellant’s solicitors. The following is a quote from the judgment: “It is deeply troubling. It is of crucial importance to any Court proceedings that parties and their legal advisors are aware of the fundamental obligation to ensure that the evidence given to the Court is truthful and presented in the correct manner. It is a basic requirement that any exhibit produced in conjunction with an affidavit should be in existence at the time the affidavit is sworn.”

The result was a wasted costs order against the solicitor in favour of the Appellant, attributed to the collection of errors and oversights that resulted in exhibits post-dating the Affidavit. This was on top of additional expense for the Respondent’s solicitor in engaging senior counsel on his own behalf and furthermore swearing additional affidavits as to how the circumstances arose.

What Can we Learn?

It is our responsibility, as solicitors, to ensure that

Summer 2020 dsba.ie Susan Martin is principal of Martin Solicitors.

She is a Council member of the DSBA

the case to Court is coherent, properly set out and correct in form.

Taking the instant situation into consideration, given our occupational exposure to Affidavits as practitioners, we perhaps sometimes become too casual about them and delegate to others what is properly the business of practitioners vi ., the putting of matters into evidence.

A slip can easily arise from, say, an Affidavit of Service or a rounding Affidavit for a routine application unless monitored carefully. Precedents are a good framework and a very present help in times of trouble. We can, however, place too much reliance on them. Indeed, the Court in the above judgment cautioned about the use of the dreaded precedent. “...affidavits are often treated as standard form documents where, time and time again, the same prolix paragraphs are replicated in affidavits sworn by practitioners without regard to the particular facts of an individual case.”

What Can we do to Get Our Affidavits Right?

Use precedents from the Rules of Court • Consider the matters to be put into evidence carefully and critically; ensure your client can stand over each of the averments.

• Avoid repetition and prolixity in the body of the Affidavit Cross check dates against instructions on the le Check the Affidavit carefully and ensure that each of the exhibits is attached to the various exhibit sheets. The exhibit should be well presented and clear and legible and be complete.

• Check the jurat clause and ensure it is in the correct format e.g. says before me and not in the presence of nsure you have a ling clause • After the Affidavit has been sent to the client for swearing and been returned, check again to ensure that the jurat is complete and all exhibits have been signed and dated.

Litigation

A Last Word about Wasted Costs Orders Wasted costs orders ought to strike fear into the heart of every practitioner. To coin a phrase from Lord Denning, we should consider them the nuclear weapons in the arsenal of costs orders and seek to avoid them.

If we as practitioners are doing our job, in the ordinary course of events such orders should not arise.

Wasted costs orders are powerful. In the words of Hogan J in o v in for ustice 1 I C 1 “..would it be in the public interest that the creativeness and inventiveness of the legal profession should be stifled or that much cherished independence thwarted by the threat of a wasted costs order. If that were so, then there would be a real danger that the wasted costs procedure - or even the threat of it would become an instrument of oppression in the hands of the wealthy or the powerful or the vested interests who, for example, feared legal change being brought about by ground-breaking litigation.”

That said, access to Court is a privilege and ought not to be taken up by those engaging in frivolous or vexatious litigation. Litigation needs to be conducted in accordance with the rules in order to prevent the Court’s time being wasted or to compel the other party to spend a lot of money defending doomed proceedings.

This does not mean that in every case brought which fails that the practitioner has done anything incorrectly cases fail all the time and the litigant is entitled to his day in Court. This was illustrated in a Circuit Court Appeal before Meenan J on 2nd December 2019 where he said “if every claim dismissed were to lead to allegations of misconduct on the part of the solicitor, that would be an extraordinary situation”. See report rish ndependent 1 19 Accordingly, it is best for the practitioners to conduct litigation carefully and in accordance with the Rules of Court. P

To coin a phrase from Lord Denning, we should consider them the nuclear weapons in the arsenal of costs orders and seek to avoid them

the Parchment 31

Contact Tracing

– A Privacy Primer Governments all over the world, including our own Irish Government, are introducing contact tracing via our mobile phones in a bid to combat coronavirus. The Covid Tracker App has just been launched by the HSE and Department of Health.

Dr John Cahir and Davinia Brennan at A&L Goodbody take a forensic look at what all this involves

T

he idea behind contact tracing Apps is that users will be alerted when another App user has tested positive to Covid-19, thereby enabling them to take appropriate action, such as self-isolating or undergoing testing. t remains to be seen how e ective contact tracing Apps will be in the ght against Covid-19, but it is clear that in order for the Apps to work, they need to be widely downloaded and used. The European Commission has highlighted that evidence from Singapore, and a study by Oxford University, show that 6 -7 of a population need to use the App for it to be eďŹƒcient. The popularity, acceptance, and use of the Apps will undoubtedly depend on the extent to which the Apps enable individuals to control the collection and use of their personal data.

The European Commission and European Data Protection Board PB have published guidance for EU Member States and App developers, to help ensure the Apps comply with EU data protection laws, in particular the P and ePrivacy irective EC. Contact tracing guidance recognises that there is no one-si e ts-all solution, and that the envisaged technical solutions need to be examined in detail, on a case-by-case basis.

In developing contact tracing Apps, governments will also need to balance an individual’s right to protection of their personal data under Article of the Charter of Fundamental Rights of the EU, against other rights, such as freedom of movement and the right to engage in work which are su ering

32 the Parchment

unprecedented restrictions due to the pandemic.

It is hoped that the development of contact tracing Apps in compliance with this guidance, will help reassure users that their fundamental right to protection of their personal data will be respected, and that data collected by the Apps will not be used for any other purposes, such as enforcement of lockdown or quarantine restrictions.

Why are Governments Turning to Contact Tracing Apps?

Traditionally, the contact tracing tools employed by national health authorities has involved manually contacting and tracking down people who have been exposed to an infected person. However, this can be a resource-intensive and onerous process, and relies on information provided by infected persons regarding their movements and interactions, during the time they may have been infectious. It is hoped that contact tracing Apps will improve the speed and e ectiveness of contact tracing, and help people return to normal life as the lockdown restrictions ease. Manual contact tracing will continue to play an important role, in particular for those such as the elderly, who could be more vulnerable to infection but less likely to have a mobile phone or have the digital skills to use such Apps.

Many EU Member States have yet to launch contact tracing Apps, but it is likely there will be more activity in this area over the coming weeks due to the easing of lock-down restrictions, and the recent launch by Apple and Google of their contact tracing API.

Summer 2020 dsba.ie Dr. John Cahir is a partner at A&L Goodbody Davinia Brennan is an ssociate at A&L Goodbody

Google & Apple’s Joint Initiative Many governments around the world are developing contact tracing Apps which meet the privacy standard advocated by Google and Apple, in order to ensure their Apps will function e ectively on Android and IOS devices. Google and Apple, the world’s leading makers of smartphone operating systems, recently released their contact tracing AP known as the exposure noti cation AP to help prevent the spread of Covid-19. Some countries including reland across continents and a number of S states have already requested access to the software. Notable omissions are Norway and France.

The API is not itself a contact tracing App, rather it enables governments and public health authorities to incorporate the software into their own Apps that people install. The API will enable Bluetooth technology to run in the background of the phone, including on a locked phone. Without this ability for background use of Bluetooth technology, the utility of Apps would be greatly decreased. Users would need to have their phones unlocked and turned on, for the Apps to be able to use Bluetooth and log encounters. Apple and Google are limiting use of their AP technology to government contact-tracing Apps.

Privacy activists have praised the protections o ered

by Apple and Google’s API, as being in line with the principles of data protection by design and by default.

Google and Apple have explicitly barred use of the API in any Apps that seek GPS location data from users, which means some Apps being developed by

Information Technology

public health authorities for contact tracing will not be able to use the API. In addition, the API will only work on Apps using a decentralised system that uses randomly generated temporary keys created on a user’s device but not tied to their speci c identity or information . The AP allows public health authorities to de ne what constitutes potential exposure in terms of exposed time and distance, and they can tweak transmission risk and other factors according to their own standards.

Centralised –v– Decentralised Approach One key issue of contention amongst governments is whether data collected by the App should be stored on a centralised basis i.e. on a centralised system which public health authorities have access to or decentralised basis i.e. on a user’s mobile device . The centralised approach enables national health authorities to make use of the data, by providing advice to users and their contacts as and when necessary.

Whilst the decentralised basis puts users in more control of their data, and alerts them automatically if they have been exposed to individuals infected with Covid-19. The PB accepts both the centralised or decentralised approaches as valid options, although the decentralised approach better aligns with the GDPR’s data minimisation principle.

Apple and Google have said that only decentralised Apps will be able to run continuously

One key issue of contention amongst governments is whether data collected by the App should be stored on a centralised basis

the Parchment 33

using Bluetooth on their IOS and Android devices.

For centralised Apps to be able to run continuously, a phone would need to be left unlocked at all times.

Most contact tracing Apps being developed

by European governments are voluntary, and avoid GPS location tracking and a centralised database

Are Governments Taking a Privacy-Friendly Approach in their Contact Tracing Apps?

Asia The Chinese and South orean governments are taking a more privacy intrusive approach to contact tracing, and e ectively putting their citi ens under mass surveillance.

China The Chinese government has deployed an App called Alipay Health Code, which is mandatory, and uses location tracking. The authorities provide users with a uick response colour code in green, amber or red, based on their health status and travel history. These codes are scanned before allowing users entry to public transport or establishments.

South Korea The South orean government uses a contact tracing system known as the Covid-19 Smart Management System’ SMS , rather than a contact tracing app. SMS uses data from organisations, such as National Police Agency, the Credit Finance Association, three smartphone companies, and 22 credit card companies, to trace the movement of individuals infected with Covid-19. PS location tracking, smartphone data, credit card data and CCTV are all compiled to trace an individual’s movements.

The use of this surveillance method, and the excessive amount of data collected, creates fundamental privacy issues for citi ens.

Singapore n contrast, the Singaporean government has been widely praised for the privacy-friendly features of its TraceTogether App. The App is voluntary, and uses Bluetooth technology rather than GPS location tracking. Users receive a push noti cation to their phone when the Bluetooth eld of their phone has overlapped with the eld of an individual who has tested positive for Covid-19. t identi es users within m 6.6ft of another person

34 the Parchment

for more than 30 minutes. The App stores records of a user’s Bluetooth encounters, and their duration, for 1 days on the user’s phone. It generates encrypted data logs on the person’s phone, which can be decrypted and analysed by the government where necessary. nfortunately, it has emerged that only of Singapore’s population is using the App. The lower than expected uptake of the App may, in part, be due to the fact that it does not work properly when in the background on iphones, because of the way Apple and Google restrict use of Bluetooth technology. However, this problem will be resolved through use of Apple and Google’s API. Europe uropean countries are seeking to achieve similar success to China and South orea in attening the curve of Covid-19 infections, through deployment of contact tracing Apps, but without turning into totalitarian regimes. Most contact tracing Apps being developed by European governments are voluntary, and avoid GPS location tracking and a centralised database.

These features are essential in order for the apps to work on Apple and Google’s API. Ireland The rish government has published a copy of a Data Protection Impact Assessment P A , source code and privacy policy for its new Covid Tracker App. The EDPB recommended that EU Member States publish such documentation to enable public scrutiny of contact tracing Apps. Use of the App will be voluntary; use Bluetooth technology rather than PS location tracking , and store data on a decentralised basis on the user’s device, as required in order to use Apple and Google’s API. Italy, Germany, Swit erland and Austria, amongst others, are also adopting these features in their contact tracing Apps.

The App will record if a user is in close contact with another user by exchanging anonymous codes that are held on the users’ phones. People who test positive for Covid-19 will be able to choose if they want to anonymously alert other App users who they have been in close contact with. If a user wants, they can record their phone number on the App asking for a follow-up call from the HSE in the event they get an exposure noti cation.

The App also contains a Symptom Checker function, in addition to contact tracing. Demographic data including sex, age range, country and town is re uested at the time of symptom check-in, but is optional. It also contains a News and Information function, which is considered to have little impact on a user's rights as no personal data is processed.

The Covid Tracker App appears to be largely in line with the EDPB's recommendations. However, one particular unmitigated risk identi ed by the P A, is that if the App is successful, its scope may increase to include, for example, use by other public bodies or for enforcement purposes. This could potentially impact users privacy and undermine public con dence in the App. The ata Protection Commission PC has published its review of the government's DPIA, on an informal consultation basis. Notably, the DPC states that if the population uptake of the App fails to reach a sufficient threshold, the necessity and proportionality of continuing to process the data of those who use the

Summer 2020 dsba.ie

Information Technology

App should be reconsidered. The Norwegian Data Protection Authority PA recently suspended use of the Norwegian Health Authority's contact tracing App due, in part, to the disproportionate risk to privacy that it presented, given that only 14 of the population were using the App, and the low rate of infection in Norway.

UK The government is developing an App called NHSX. The NHSX will be voluntary and use Bluetooth technology. It was initially proposed that the App would store data on a centralised database operated by the National Health Service S . owever, following a trial of S in the sle of ight, the overnment has announced that it will adopt a decentralised model, so the App will be able to bene t from Apple and oogle s AP . The nformation Commissioner’s Office CO is having ongoing conversations with S regarding its planned contact tracing App, and has published a discussions document setting out best practice recommendations. In particular, the ICO recommends that “data should remain on the user’s device as far as is reasonably practicable. Backend infrastructure should only collect that which is strictly necessary in the context of the functions it provides”.

France and Norway have both opted for Apps featuring a centralised system.

The di erent technical approaches being adopted by European governments to developing contact tracing Apps raises questions about the

cross- border inoperability of the Apps. As most of these Apps are currently a work-in-progress, and details of their speci cations are sketchy, it remains to be seen to what extent they will comply with EU privacy and data protection laws.

EU Guidance - European Commission Toolbox and Guidance The European Commission has published a Common EU Toolbox on mobile contact tracing Apps to support the ght against Covid-19, along with accompanying guidance. The toolbox and guidance set out a number of essential requirements for Member States’ contact tracing Apps, including: • voluntary use Bluetooth proximity technology not PS location data • comply with the GDPR data protection principles • have an appropriate legal basis for processing • approved by the public health authority • interoperable across the EU and • dismantled when no longer needed.

EDPB Guidance The EDPB published a letter welcoming the Commission’s initiative to developing a pan- uropean coordinated approach to Apps supporting the ght against Covid-19. n addition, the PB published its own guidelines 4 on the use of location data and contact tracing tools in the context of the Covid-19 pandemic. ts guidelines are in line with the European Commission’s toolbox and guidance. the Parchment 35

(i) EDPB Recommendations – Contact Tracing The EDPB’s guidelines set out a number of recommendations and requirements in regard to the development of contact tracing Apps, including:

The mere fact that the use of contact tracing Apps takes place on a voluntary basis does not necessarily mean that the processing of personal data will be based on consent

Voluntary Use: The systematic and large-scale monitoring of contacts between individuals is a grave intrusion into their privacy. It can only be legitimised by relying on voluntary adoption by users.

No Location Tracking: Bluetooth data should be collected to determine the proximity between users of the App. Location tracking of individuals is not necessary for contact tracing purposes, and would violate the GDPR’s data minimisation principle. It may also create major security and privacy risks.

Identify the controller: The controller of any contact tracing App should be clearly identi ed.

National health authorities may be controllers.

Data Minimisation: The App should not collect unnecessary information, such as call logs, location data, device identi ers, etc.

Purpose Limitation: The purposes must be speci c enough to exclude further processing for purposes unrelated to the management of the Covid-19 health crisis e.g. commercial or law enforcement purposes .

Users and contacts should not be identifiable: Use of the App should not allow the user or any contacts to be identi ed. Only pseudonymous identi ers should be collected and stored.

Implement a Centralised or Decentralised Approach: Data may be stored locally within individuals’ devices decentralised solution , or alternatively data may be stored on a centralised server. The EDPB is of the opinion that both are valid options, provided that adequate security measures are in place, but the decentralised solution is more in line with the GDPR data minimisation principle.

Security: State of the art cryptographic techniques should be implemented to secure the data stored in servers and Apps, and any exchanges between Apps and the remote server. Mutual authentication between the App and server should also be performed.

Obtain User’s Consent to Storage/Access to Information on User’s Device: Storage and/or access to information already stored on the terminal e uipment of the user, are subject to Article of the ePrivacy irective C. f those operations are strictly necessary in order for the App provider to provide the service explicitly requested by the user, the processing would not require his/her consent but the controller would still need to have a legal basis for processing the data under the GDPR/Data Protection Act 1 . or operations that are not strictly necessary, the App provider must obtain the user’s prior consent.

Legal Basis for Processing Personal Data of

36 the Parchment

Users and Contacts: The mere fact that the use of contact tracing Apps takes place on a voluntary basis does not necessarily mean that the processing of personal data will be based on consent. Governments also, for example, have the option of relying on necessity for the performance of a task in the public interest i.e.

Art. 6 1 e P . The basis for processing referred to in Art. 6 1 e must be laid down by or Member State law. The EDPB suggests that the enactment of national laws, promoting the voluntary use of the App could provide such a legal basis.

Legal Basis for Processing Health Data: Where the App collects health data for example the status of an infected person , the processing must meet one of the legal bases in Article 9 P . The most relevant legal bases are: the processing is necessary for reasons of public interest in the area of public health under Article 9 i P or for health care purposes as described in Article 9 h P . t might also be based on explicit consent under Article 9 a P .

Storage Limitation: Timelines should consider medical relevance incubation period etc. . Any data collected should be deleted as soon as possible, and once the crisis is over, the data should be erased or anonymised.

Accuracy: The EDPB emphasises the importance of ensuring the accuracy of a declaration that a person is Covid-19 positive, as entering this information into the App may trigger noti cations to individual contacts concerning the fact that they have been exposed. The PB suggest, as a solution, a one-time code that can be scanned by the person when the result of a test is given to him/her.

Privacy by design and by default: Implement a data protection by design and by default approach when developing the App. Source Code: An App’s source code should be published for the widest possible scrutiny.

DPIA: A DPIA should be carried out before implementing a contact tracing App and published, as the processing is likely high risk i.e. health data anticipated large-scale adoption systematic monitoring use of new technological solution .

(ii) EDPB Recommendations – Use of Location data The EDPB separately considers the conditions for the proportionate use of location data “to assess the overall e ectiveness of con nement measures . n some Member States, governments envisage using mobile location data as a possible way to monitor, contain or mitigate the spread of Covid-19. The P and ePrivacy Directive both contain rules allowing for the use of anonymous or personal data.

The EDPB highlight that there are two principal sources of location data: a. Location data collected by electronic communication service providers (i.e. telcos) in the course of the provision of their service

Summer 2020 dsba.ie

Information Technology

The EDPB note that location data collected from electronic communication service providers may only be processed within the remits of Articles 6 and 9 of the ePrivacy irective. That means that telcos may disclose location data to public authorities or other third parties only if it is i anonymised or, ii with the user’s prior consent. b. Location data collected by information society service providers (I s) whose Apps re uire the use of such data (e.g. navigation, transportation services, etc.)

In regard to location data collected directly by SSPs from the user’s device, Article of the ePrivacy Directive applies. That provision provides that the storing of any information whether personal data or not on the user’s device or gaining access to information already stored is allowed only if i the user has given prior consent or ii the storage and/or access is strictly necessary for the service explicitly requested by the user. In addition, information collected in compliance with Article can only be further processed with the additional consent of the user or on the basis of an EU or national law, which constitutes a necessary and proportionate measure in a democratic society.

Accordingly, if national health or law enforcement authorities want to obtain mobile location data of identi able individuals from telcos, or SSPs want to store access location data or any other data on users’ devices that is not necessary for the intended functioning of the App, then they must obtain the user’s prior consent to do so, to ensure compliance with the ePrivacy Directive.

Article 1 1 of the ePrivacy irective does, however, provide for derogations from the above obligations, subject to legislative measures safeguarding rights and freedoms. In Ireland, for example, the Communication etention of ata Act 11 permits law enforcement authorities

to obtain access to location data from telcos for the purpose of investigation of a serious o ence, safeguarding the security of the State, or the saving of human life. This may provide a legal basis for law enforcement authorities to obtain location data from telcos in order to monitor, contain or mitigate the spread of Covid-19.

The Outlook It is widely recognised that, when combined with other measures such as social distancing, contact tracing Apps can help in the ght against Covid-19. n a uropean context at least, acceptance and widespread voluntary use of these Apps will depend on the public trusting that any interference with their privacy and data protection rights by public authorities is kept to a minimum.

Even where strong privacy safeguards are implemented as with the Apple and oogle initiative , it is far from certain that the public will sign up in sufficient numbers to make Apps an e ective contact tracing tool although over one million people have already downloaded the Irish Covid Tracker App. But where there is low public acceptance, EU Member States will have to grapple with whether to switch to a mandatory App policy similar to some Asian countries or to abandon Apps as a part of their contact-tracing programmes, relying instead on traditional methods.

A mandatory App policy would clearly be at odds with existing European Commission and EPDB guidance, and any EU Member State law that imposed such a requirement would inevitably face a swift legal challenge. In any case, there does not appear to be an appetite among EU Member States to pursue a mandatory App policy.

The utility of contact tracing Apps in Europe very much hangs in the balance. To ensure success, governments will need to embark on a sustained public campaign of awareness and persuasion to convince their citi ens that contact tracing Apps are a public good and that privacy safeguards are robust. P the Parchment 37

Fergus Doorly is a partner at William Fry. Ruairi Rynn is a partner at William Fry. Simona Mulligan is an associate at William Fry.

Debt Litigation

Proving the Debt Fergus Doorly, Ruairi Rynn and Simona Mulligan examine the difficulty faced by Chargeholders in proving a debt where they are not the original lender. A recent Court of Appeal case con rms the Hearsay Rule still applies in debt claims

I

n the recent case of romontoria (Aran) Limited v Burns CA 7 the Court of Appeal dismissed Promontoria’s appeal of a decision of the High Court rejecting their evidence of the debt claimed. The High Court did so on the basis that the evidence provided of the debt to the Court by Promontoria was inadmissible hearsay.

This case highlights the difficulties debt holders may experience when seeking to recover debt in summary proceedings where the plainti is not the original lender.

Loan Sale to Promontoria Ulster Bank had issued summary proceedings for the debt in 1 and subse uently sold the loan to Promontoria in 1 . Promontoria then sought judgment in amount in excess of 7m under the loan against the defendant, Mr Burns.

The High Court application for summary judgment was grounded on an affidavit of Mr arris who was a senior asset manager with Link ASI Ltd which administered the debt on behalf of Promontoria. The affidavit exhibited non-certi ed copies of guarantees and letters of demand made on foot of those guarantees. Mr Burns denied that any debt existed and put Promontoria on full proof of the existence of the debt. He also contended that Mr Harris’ evidence was hearsay and therefore inadmissible.

The Rule Against Hearsay The rule against hearsay essentially stipulates that witnesses may only give evidence as to matters to which they have direct, rst-hand knowledge. This means that where a party relies on documentary evidence, ordinarily only the author of the document may attest to its truth. Ms Justice Baker for the Court of Appeal explained that the rule exists to ensure the veracity and reliability of evidence. However, as she also noted, an overly harsh rule causes problems including “cumbersome and unduly long civil litigation”.

Could Promontoria Avail of an Exception?

Promontoria tried to avail of one of the exceptions to the hearsay rule under common law where documents, such as account statements, demonstrate a “course of dealings” between the parties to indicate that a debt existed. In such circumstances a person familiar with the records could attest to the documents’ reliability.

38 the Parchment

Court of Appeal Decision Baker J. held that a debt claim could be established by credible evidence from a course of dealing such as from reliable business records. However, on examination of the documents Promontoria sought to rely on, the Court found they did not prove the debt.

While the Court accepted that Mr Harris had authority to swear an affidavit and Mr arris had con rmed in his affidavit that he had “access to the books and records … having relevance to the proceedings”, the affidavit did not state that his evidence was drawn from analysing the historic books and records of Ulster Bank, including customer account statements sent to Mr Burns. This omission was, she held “unlikely to be accidental” and was “precisely the type of mischief the rule excluding hearsay evidence seeks to avoid”.

Baker J. held that at best the evidence of Mr Harris was evidence of the amount Promontoria was told was due by lster Bank when the loan was sold in other words, “classic hearsay”.

Lack of Clarity The Court of Appeal highlighted the lack of clarity surrounding the exception to the rule against hearsay throughout the judgment. The Court noted that recent judgments of the Supreme Court on this point have been given by three-judge panels and “an authoritative decision of the full court is awaited and needed”.

Mr Justice Collins, in a separate concurring judgment, echoed Ms Justice Baker’s call for clarity and stated that it was not in the public interest that straightforward debt claims should require a plenary hearing. He concluded by calling for legislative intervention to allow for business records to be admitted in civil proceedings.

What this Means for Lenders This case, along with other recent decisions including Bank of Ireland v O’Malley, highlight the difficulties that may arise where the party seeking to prove the debt is not the original lender. In such circumstances the claimant must be in a position to put sufficient evidence before a court to prove that the debt is due. Where a claimant is seeking to rely on the course of claiming exception to the rule against hearsay it must be very careful to exhibit documents such as customer account statements in order to prove a debt. P

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Equal Pay in the Spotlight The issue of the gender pay gap is one which has attracted attention in recent years, with legislation being considered in a variety of countries across the globe, including Ireland, on how to address the problem. Siobh n La erty says that a recent case serves as a timely reminder that employers in Ireland can be subject to hefty penalties where a nding of discrimination on the basis of gender relating to equal pay is made against them

Background In the case of General Manager v Sales Distribution A 199 , the respondent was involved in the wholesale purchase and sale of videogames. From September 17, the female complainant undertook the role of general manager at a salary of 69, per annum with no clear entitlement to sales commission.

Two male comparators were referred to in this case: • A male general manager, who was on a salary of 1 , plus a commission of 1 , , who resigned his position in uly 17 and • A male contractor hired by the respondent in July 1 as a marketing executive who was being paid the e uivalent of a basic annual salary of 16 , .

The Complainant sought a commission payment for the work she had undertaken on taking on the role of general manager, which she said was resisted.

The respondent informed her they were working on the bonus structure in August 1 . The complainant gave notice of her intended resignation in October 1 and outlined this was, amongst other issues, because the respondent had failed to equally value her role with the general manager and less favourable treatment in respect of the commission payments.

The respondent then made a nal o er to increase her annual salary to 1 , plus 7 commission on gross pro t, excluding deals made by the owner, and a retrospective payment of , to persuade her to stay, but the complainant refused the o er.

The complainant resigned her position in November 1 and made a claim under section 77 of the mployment uality Acts as amended the Acts arguing that she was discriminated against on the ground of gender relating to equal pay.

40 the Parchment

The respondent argued that the role and work which she undertook was fundamentally di erent to that of her two male comparators “who were responsible for the overall strategic and commercial direction of the company with uanti ably more responsibility in terms of ales and ross ro t”. They argued that the di erence was justi able when considering the work performed when considered against objective criteria relating to skill, experience and responsibility.

Findings The Adjudication Officer AO considered section 7 1 of the Act which de nes like work . Speci cally he referred to section 7 1 c which outlines that “the work performed by one is equal in value to work performed by the other, having regard to such matters as skill, physical or mental re uirements, responsibility and working conditions”.

The AO held that the complainant’s role as general manager was not of equal value to that of her predecessor, who had more experience than the complainant, brought in more sales and had a much more strategic role within the respondent’s business. owever, when it came to the marketing executive, the AO held that he appeared to be carrying out a role of less value to that of the female general manager and yet she was being paid signi cantly less than him. The respondent argued that their job duties were di erent and therefore it justi ed the di erence in salary. The AO found that just because there were di erences in their duties, that in itself does “not reasonably explain the di erence and ade uately provide a transparent and ob ective explanation to demonstrate how the remuneration for the marketing/sales comparator was determined and so markedly di erent”. ssentially no sufficiently good reason was

Summer 2020 dsba.ie Siobhán Lafferty is a solicitor at Reddy Charlton and specialises in Employment and Regulatory law

Employment Law

put forward to justify the di erence in pay where the general manager was in fact the most senior employee of the respondent’s business, and in the absence of such reasoning it could be presumed that there had been discrimination.

It is interesting to note that the AO commented upon the fact that the respondent had made an o er of a substantial increase, on the basis of an apparent appreciation that there was a disparity in the pay.

Therefore the AO held • that the complainant was not discriminated against on the ground of gender regarding the general manager comparator role, as this was not considered to be a role of e ual value but • the complainant was discriminated against on the ground of gender regarding the marketing executive role and was entitled to equal pay, in the absence of transparency relating to pay determination.

Thus the complainant was awarded 97,666 in arrears of remuneration.

where the Law Society of Ireland’s Annual Report for 1 - 19 shows that 49 of the members of the profession are male and 1 of the members of the profession are female. There has been a general trend towards there being more females in the profession, however, the number of females reaching the higher echelons of rms is still far lower than their male counterparts with females in of partner roles in 1 in the big 6 rms’. This therefore raises important and difficult uestions for the legal profession in terms of issues of equal pay and the gender pay gap.

It is also worth noting that for the purposes of the Acts, a contract for service is considered to be a contract of employment, therefore meaning that independent contractors can be used as a comparator. This is something for employers to be mindful of when employing independent contractors and outlining their salary.

Analysis

This case highlights the importance of providing clarity and transparency in pay structures including with independent contractors. Employers will need to be prudent, particularly when job roles change or promotions take place, to be clear about the salary and the work, skills and experience provided for within the role. hilst there are general societal changes which mean that the gender pay gap is becoming a bigger issue, employers should remember that Employment uality legislation already exists to deal with discrimination, including in respect of pay, in the workplace. P

The issue of the gender pay gap has gained momentum in recent years, with the Gender Pay Gap Information Bill having commenced its journey through the legislative process. Notwithstanding this shift towards greater transparency and potential reporting on issues of the gender pay gap, employers are already under an obligation to give males and females e ual pay for work of e ual value. The conse uences of not doing so as exhibited by this case can be extremely costly.

This issue is a particularly interesting one when viewed through the prism of the legal profession,

Conclusion

The number of females reaching the higher echelons of rms is still far lower than their male counterparts with females in of partner roles in 1 in the big 6 rms’

the Parchment 41

Covid-19 and Commercial Leases – A BALANCING ACT FOR

LANDLORDS AND TENANTS Killian Morris examines a selection of legal issues and factors that may be relevant to landlords and tenants arising from the Covid-19 Pandemic

I

n the initial period of the health crisis, there was considerable debate over whether the temporary ban on evictions in the Covid emergency legislation applied to commercial tenancies.

However, it now seems that the immediate impact of the ban in the wider context of landlord and tenant relationships has been limited.

When passing the Emergency Measures in the Public nterest Covid-19 Act to address the obvious issues facing residential tenants, the Oireachtas prohibited “all proposed evictions in all tenancies in the State” for an initial period of three months from 7 March since extended to uly . hile the non-prescriptive language in the legislation was picked up as being potentially relevant to commercial tenancies at the time, it was considered that the intention of the legislature was to ban the termination of residential tenancies only.

This argument was raised in the High Court in a case where Design Features Limited, a Dublin furniture business, was seeking access to its premises following its failure to pay rent for the month of April. t is understood that a forfeiture notice had been served on the tenant but the landlord subsequently denied that it had sought to prevent the tenant from accessing the premises on foot of the notice.

While an interim order was made at the ex parte stage, the landlord, out of concern for the adverse

42 the Parchment

publicity, then provided the court with an undertaking not to act on foot of the forfeiture notice served, during the emergency period. As a result, the court did not have to make any determination on the question of whether the emergency legislation banned evictions of commercial tenants.

While this was of interest to industry observers, it seems that even if the evictions ban was found to have been relevant to commercial tenancies, the legislation was unlikely to o er signi cant protection to tenants in the long run. As it stands, a considerable length of time is normally a orded to tenants in default before a landlord might be able to regain possession of the property. Given that the emergency legislation was to be temporary only and the fact that court lists are taking much longer than usual, most landlords were unlikely to seek to forfeit leases during the initial period. nstead, it is more likely that some landlords will invoke forfeiture provisions many months after the crisis has formally ended, when considerable arrears have built up or where tenants may still not be in a position to pay rents given the likely difficult trading environment at that stage. f that happens, it seems that a tenant will no longer have the bene t of the emergency legislation, even if the arrears arose during the emergency period.

While forfeiture and disputes around it may well

Summer 2020 dsba.ie Killian Morris is a Partner at AMOSS Solicitors.

He is a member of the DSBA Parchment committee

become an important element in the post crisis era, there are more general considerations around the landlord and tenant relationship which deserve further analysis.

General Impact of Crisis on Business Tenancies The extreme impact of Covid-19 on trading levels has caused businesses in all sectors in the economy to reduce operating costs in an environment where it is still unclear when business will resume on a normal footing. These measures have, in the main, involved the elimination of unnecessary discretionary expenditure and the lowering of payroll costs through wage cuts or reductions in sta numbers.

However, most trading businesses incur considerable ‘property costs’ on an ongoing basis, including rent and local authority rates. How to deal with those costs on a reduced or zero turnover, in a way that is sustainable but also in compliance with legally binding obligations, is a difficult balancing act for all concerned. ven now as businesses re-open some have already indicated they will struggle to survive given the current public health advice on social distancing etc.

The government has announced wage support schemes and has encouraged utility suppliers, insurers and lenders to be reasonable in how they deal with customers who are su ering nancial difficulties

Property

but these measures will not last inde nitely. The government, in the case of residential tenancies announced a freeze in rents and a ban on evictions during the crisis. Local Authority rates payable by businesses have been deferred. owever, given the complexity of the nancing arrangements underpinning the ownership of many commercial buildings in reland, it is generally accepted that it would be inappropriate for the government to directly interfere with commercially negotiated tenancy arrangements of retail, industrial and commercial property. As a result, landlords of commercial property will inevitably remain in a strong position from a legal perspective.

That said, at the time of writing, the new programme for government refers to the establishment of a “code of conduct between landlords and tenants for commercial rents . t remains to be seen what form this will take and whether it takes into account the complexity of the commercial landlord and tenant market.

Different Approaches A one si e ts all approach’ to these issues which may be suitable in other sectors does not take into account the fact that some retail e.g. supermarket businesses are thriving but others e.g. pubs and restaurants have been forced to close and are only now re-opening.

As it stands, a considerable length of time is normally a orded to tenants in default before a landlord might be able to regain possession of the property

the Parchment 43

Equally, some tenant entities have strong balance sheets and can a ord to pay rent even where turnover has dropped but others have no ability to pay anything when not trading or trading on a very limited basis. On the other side of the equation, some landlords have heavily leveraged their portfolios and are answerable to lenders and investors; whereas others own their rented properties outright and can make their own decisions.

When advising commercial landlords and tenants in relation to these issues, the common theme is that every situation is di erent’. ltimately, the landlord and tenant relationship is a commercial arrangement and any issues which arise are usually capable of being resolved in that context. n some sectors, deals have been reached in relation to rents during the pandemic but in others, a wait and see approach has been adopted with landlords openly stating an intention to work with tenants in bringing their accounts up to date. Time will tell whether this is realistic or not and this will be down to how quickly “normal activity” can resume.

44 the Parchment

Lease Documentation Before advising either party, it is self evident that the lease is the rst document which should be checked for provisions in relation to the payment of rent, service charge and interest, keeping the premises open for business during speci ed times, the right of the landlord to forfeit the lease for non-payment of rent/breach of covenant, the provision of landlord services and any force majeure/suspension of rent provisions. t is extremely rare to nd lease provisions which would envisage a suspension or reduction in rent during a pandemic but, where a building has been closed, it may be argued that the landlord’s covenants to provide services or for quiet enjoyment have been breached. That said, these are mere ‘arguments’ and, invariably, the landlord will have the ‘whip hand’ in cases of non-payment of rent as most leases are generally weighted in favour of the landlord on these issues. ltimately, the ability of the landlord to sue the tenant for the non-payment of rent or to exercise

Summer 2020 dsba.ie

Property

its rights to forfeit the lease assuming any temporary ban no longer applies will put the landlord in a position of legal strength in any negotiations.

There may be concessions in the lease such as an imminent break option which might be of assistance to a struggling tenant, who could break the lease early. t should be noted that most break clauses are dependent on the tenant being in full compliance with its lease obligations so a tenant seeking to invoke a right to terminate, would have to continue to pay the full rent up to the break date. f the break option is not imminent, the tenant may be able to surrender the option in exchange for a rent concession deferral subject to landlord agreement.

Landlords may ask for guarantees or security in return for rent reductions in case the tenant later seeks the protection of the court or goes into li uidation. t is considered this may well become an issue for retail tenants who are owned by foreign multiples; where the ongoing support of the parent company can be withdrawn in certain circumstances.

Tenant Strategies t is possible, against the backdrop of the extraordinary situation that has occurred, that tenants will seek to invoke common law/equitable legal doctrines such as ‘frustration’ or ‘non derogation from grant’, or variants of them, in an attempt to defend landlord actions for non-payment of rent. Against this, landlords will argue strongly that these concepts have always been con ned to very speci c circumstances and are intended to go the root of the contractual relationship rather than to be a temporary sticking plaster for tenants during a crisis. Also, the evidence, from the nancial crisis, is that the rish courts are extremely reluctant to embrace radical changes to landlord and tenant law, even where tenants have found themselves in difficult nancial circumstances.

Of course, some corporate tenants may themselves seek the protection of the courts, through examinership, where they are insolvent or facing insolvency, but their underlying business is sound but for historic liabilities or unsustainable rents. Subject to satisfying the Court that they have an undertaking that is capable of survival as a going concern, corporate tenants can seek court protection from creditors including landlords , for a period, to allow them to restructure and survive as a business. f successful, it will result in a scheme of arrangement which will require court and creditor approval. The scheme may include provision for the write-o down of rent arrears. The scheme cannot unilaterally vary the terms of the lease or deny the landlord the right to act on a future breach of the lease.

Depending on the situation, and with the court’s leave, the company could repudiate a lease or the examiner appointed could disclaim an onerous lease, if an acceptable rent could not be agreed with a landlord.

The landlord would then rank as an unsecured creditor for the consequent damages as agreed/assessed by the court and receive a dividend in full and nal settlement of that claim. Where this is a possibility, the landlord will need to carefully consider whether a reduced rent with the restructured tenant is a better outcome than the lease being repudiated/disclaimed or the tenant business going into liquidation.

Negotiation and Agreements ltimately, these issues will be resolved commercially between the parties in most cases. The above is merely a selection of legal issues/factors which may be relevant in those negotiations. Landlords will be conscious of the likelihood of recovery if no deal can be done but may also be concerned about the long-term viability of a tenant, once the crisis is over. Other landlords may have little sympathy for otherwise strong businesses, which are su ering temporarily during the emergency period, and will point to the fact that they expect blue chip tenants with strong covenants to perform their obligations.

When agreement is reached, it will usually be documented as either a variation or side letter to the main lease agreement. This agreement should specify the duration of any concession provided; whether rents are being deferred or forgiven; whether interest is payable on any arrears and when it is to be paid; the withdrawal of any break option or other tenant concessions which may have to be surrendered in favour of a rent reduction; and, from a landlord perspective, it is advisable to ensure that any temporary concession is not taken into account on a future rent review. Such documentation, as mentioned, may also introduce additional security for the landlord to protect against future default; such as personal or parent company guarantees and security deposits.

The key message for landlords and tenants is to keep the lines of communication open and, having considered the lease terms and the commercial background, reach a sustainable and enforceable commercial agreement. P

The ability of the landlord to sue the tenant for the non-payment of rent or to exercise its rights to forfeit the lease assuming any temporary ban no longer applies will put the landlord in a position of legal strength in any negotiations

the Parchment 45

Hacked and Held to Ransom reg yan provides an update on some recent high pro le thefts where hackers stole highly sensitive information including from a leading law rm in ew ork. e says that such theft is now coming through our broadband and not through the usual traditional routes

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hile Covid-19 may have temporarily halted the economy, the work of hackers and other criminals continues apace. The latest high pro le data theft took place in ew ork, an infamous group of hackers calling themselves vil taking down the website of a ew ork law rm called rubman Shire Meiselas Sacks. vil claimed to have taken 7 6 gigabytes of data, including personal information on celebrities like Madonna, Sir lton ohn, and more.

By carrying out such vil attacks, the ransomware operators in ltrate organisations and encrypt sensitive information. Later, they re uest the victim to pay a ransom, generally via cryptocurrencies, to receive access to the data. n the C instance, the attackers, previously linked with numerous cryptocurrency ransom re uests, threatened to release dirty laundry on President Trump if the rm didn’t pay 4 million in full in a week.

There is an election going on, and we found a ton of dirty laundry on time. Mr. Trump, if you want to stay president, poke a sharp stick at the guys, otherwise, you may forget this ambition forever. And to you the voters, we can let you know that after such a publication, you certainly don’t want to see him as

46 the Parchment

president. Sources familiar with the matter say that President Trump has never been officially a client of this law rm. Aside from stealing the con dential documents, vil deleted or encrypted the rm’s backups. ence, the only way to regain access is to pay the re uested amount.

Partners in the law rm issued a press release commenting espite our substantial investment in state-of-the-art technology security, foreign cyber terrorists have hacked into our network and are demanding 4 million as ransom. e are working directly with federal law enforcement and continue to work around the clock with the world’s leading experts to address the situation.

A partner, Allen rubman, who is a popular entertainment lawyer, has reportedly decided not to pay, as we don’t negotiate with terrorists. According to a source, rubman, has sensitive details on everything work contracts, con dential settlements and endorsement deals for the biggest stars in ew ork and ollywood. rubman is the father of celebrity publicist Li ie rubman whose clients have included Britney Spears and ay- .

The report doesn’t clarify in what form of payment the hackers have re uested the 4 million. owever, given the group’s history with cryptocurrency-related

Summer 2020 dsba.ie Greg Ryan is principal of Greg Ryan Solicitors.

He is a former President of the DSBA

demands, it won’t be a surprise if they seek the payment transferred in Bitcoin or even Monero.

The cybercriminals had released a screenshot allegedly containing Madonna’s contract. Other well-known clients of the rm include ob Stewart, The eeknd, , LeBron ames, Mike Tyson, obert e iro, Sir lton ohn, Barbra Streisand, Barry Manilow, rake, Andrew Lloyd ebber, Priyanka Chopra, So a ergara, Activision, nc and Sony Corp among others.

According to Brett Callow, a threat analyst at cyber-security company msisoft, the number of such ransomware attacks is increasing lately, which is particularly concerning. e added that companies in this position have no good options available to them. on-payment of the demand will result in the information being published payment will simply get them a pinky promise’ from criminals that the stolen data will be deleted. vil has a compelling history of such cases.

On ew ear s ve 19, the group attacked a London-based company called Travelex. The gang claimed to have gained access to the company s computer network six months previously and to have downloaded B of sensitive customer data. ates of birth, credit card information and national

IT/Practice Management

insurance numbers were all in their possession, they claimed. The hackers said n the case of payment, we will delete and will not use that data base and restore them the entire network. The deadline for doubling the payment is two days. Then another seven days and the sale of the entire base. t appears to have been a network malware in ltration and the company later paid . million in Bitcoin to the perpetrators, down from the initial demand of 6 million. As a result, the company took down its websites across countries to contain the virus and protect data .The cyber-attack forced Travelex to turn o all computer systems and resort back to using pen and paper.

Shortly after, the criminal group announced changing its primary payment method from Bitcoin to Monero, a privacy coin. Monero is an open-source cryptocurrency created in April 14 that focuses on fungibility, privacy and decentralisation. Monero uses an obfuscated public ledger, meaning anybody can broadcast or send transactions, but no outside observer can tell the source, amount or destination. By combining the latter with the anonymous browser TO , vil believes that law enforcement agencies will face more hurdles trying to trace it.

Monero uses an obfuscated public ledger, meaning anybody can broadcast or send transactions, but no outside observer can tell the source, amount or destination

the Parchment 47

nder eneral ata Protection egulation, a company that fails to comply can face a maximum ne of 4 of its global turnover The nformation Commissioner’s Office CO said it had not received a data breach report from Travelex.

A spokeswoman added Organisations must notify the CO within 7 hours of becoming aware of a personal data breach unless it does not pose a risk to people’s rights and freedoms. f an organisation decides that a breach doesn’t need to be reported, they should keep their own record of it and be able to explain why it wasn’t reported if necessary. nder eneral ata Protection egulation, a company that fails to comply can face a maximum ne of 4 of its global turnover. The Metropolitan Police is leading the investigation into the attack. n a statement, the force said On anuary , the Met’s Cyber Crime Team were contacted with regards to a reported ransomware attack involving a foreign currency exchange. n uiries into the circumstances are ongoing. Travelex says it is working with police and has deployed teams of T specialists and external cybersecurity experts who have been working continuously.

According to abian osar, a ransomware expert at cyber security company msisoft, the attack has all the hallmarks of the vil gang. ith what we know about the incident and the hackers’ mode of operation

48 the Parchment

in the past paints a consistent picture, which leads me to believe that vil indeed hit Travelex, he said. The vil Sodinokibi group has been a uite sophisticated group for a long time now. The uoted ransom demands are consistent for the gang s victims of Travelex’s si e. Stealing data essentially gives threat actors additional bargaining chips when it comes to dealing with companies unwilling to pay the ransom.

The idea is to weaponise the hefty nes associated with P violations to pressure the company into paying.

The recovery operation is being co-ordinated from a Travelex office in the and the company insists that no customer data has been leaked. But it would not say what data could potentially be at risk.

The leaking of our clients’ documents is a despicable and illegal attack by these foreign cyber terrorists who make their living attempting to extort high-pro le S companies, government entities, entertainers, politicians, and others. Previously, the nited States epartment of efense, BO, oldman Sachs, as well as numerous state and local governments, have been victims of similar cybercriminal attacks.

Last year, uropol conducted a webinar on the exact combination between the open-source software TO and privacy coins and warned about their united efficiency in another investigation. Since the suspect used a combination of TO and privacy coins, we could not trace the funds. e could not trace the P addresses. hich means, we hit the end of the road. hatever happened on the Bitcoin blockchain was visible, and that’s why we were able to get reasonably far. But with Monero blockchain, that was the point where the investigation has ended.

So this is a classic example of one of several cases we had where the suspect decided to move funds from Bitcoin or thereum to Monero.

As Covid-19 ravages the world and its economy, the software specialists grow even more serious about such threats. According to officials, hackers have more opportunities to enter and harm online processes now, as more people are staying and working from their homes. Microsoft is on the watch, giving a heads-up to institutions, who might su er the same danger. According to the tech mogul, healthcare institutions are particularly threatened.

The company’s protection intelligence team emphasised this to assist and protect rms from possible ransomware attacks. The idea is to detect future threats of that kind on time and act against them.

Through Microsoft’s vast network of threat intelligence sources, we identi ed several do ens of hospitals with vulnerable gateway and P appliances in their infrastructure. To help these hospitals, many already inundated with patients, we sent out a rst-of-its-kind targeted noti cation with important information about the vulnerabilities, how attackers can take advantage of them, and a strong recommendation to apply security updates that will protect them from exploits of these particular vulnerabilities and others, says a release from the software company. To strengthen and ensure that companies and organisations understand the humanoperated malware danger, Microsoft has published a

Summer 2020 dsba.ie

IT/Practice Management

comprehensive report which includes the steps and how-to’s, so that hospitals could keep their network safe and protected against such cyberattacks. vil rst emerged in mid-April 19, about a month before another hacker group called old arden announced its retirement from the ransomware scene. Since then the ransomware has been linked to numerous attacks, most notably on nearly two do en Texas municipalities and hundreds of dentist offices around the S. The malware has been especially notable for its use in so-called compromise-once-infect-many attacks on targets with many customers, such as managed service providers MSPs . Speaking at a roundtable event in London, Secureworks CT head on Smith said They very publicly announced that they were retiring, said they had made their money and gave some very precise cash statements about how much they had made and how much their affiliates had earned.

vil, or Sodinokibi, has now appeared on the scene. t’s a di erent type of ransomware, so previous attacks were single host ransomware Sodinokibi is post-intrusion ransomware where a guy logs into your network, spends three to ve days working out how to get stu deployed in your network, and then knocks the entire enterprise over, otPetya or annaCry-style.

The two ransomware families also whitelist similar keyboard locales to stop them infecting hosts based in ussia a fre uent tactic designed to stop scrutiny by local law enforcement. This is not necessarily concrete proof of a link either, but would strongly suggest that both groups are based in the same region.

On one of the lockdown Mondays, the ardai reported that for the rst time in the history of the State, there were no burglaries reported in ublin. t seems the thieves are coming in through the broadband now, not the window. P

The malware has been especially notable for its use in so-called compromiseonce-infectmany attacks on targets with many customers the Parchment 49

2020 Tax Update ith health expenditure currently at extraordinary levels and income supports putting a further strain on government co ers, Brian Broderick predicts a sudden signi cant dip in tax receipts and says there is some expectation that there may be future adjustments to the taxation system in order to balance the books

W

hile anticipating that there may be future adjustments, there have been a number of issues from a taxation perspective to consider as a result of the Covid-19 crisis.

Covid-19 Tax Debt Warehousing and Tax Refunds Revenue have suspended debt collection and interest on late payments of tax for businesses that are severely impacted by Covid-19. These arrangements currently extend from an eb for AT and from eb for PA covering PA , P S and SC to the end of une . Businesses are re uired to le the relevant tax returns so that Revenue have visibility on the level of unpaid debt.

The deferred payment option is automatically available to an SM which is a business with an annual turnover of less than €3million not dealt with by evenue’s Large Corporates ivision LC or Medium nterprises ivision M . The arrangement may be available to a larger businesses on re uest to evenue. Legislation is to be introduced to cover this tax warehousing arrangement.

Any business that is encountering cash ow difficulties should look to establish if the scheme is applicable.

Revenue are separately prioritising repayments and refunds, such as AT PS T refunds, to taxpayers.

PS T refund claims can currently be made by My n uiries and any checks re uired will be carried out via My n uiries or by telephone.

50 the Parchment

Employer Support Most will be aware of the availability of the Temporary age Subsidy Scheme T SS which subsidises the pay of employees who have net weekly pay of up to 96 per week. At the time of writing, the scheme is expected to continue until the end of August 2020 and is currently available where the business has been adversely a ected by the Covid-19 pandemic.

An employer’s business will be regarded as adversely a ected if evenue can be satis ed that the business is unable to meet normal wages or normal outputs as a result of the pandemic, and that there is at least a reduction in turnover or customer orders between 14 March and une .

Employee Benefits A bene t in kind B will not arise where employers provide e uipment such as laptops, printers, and office furniture in order for employees to set up a working space in their homes, or where an employer pays for a taxi to or from work due to health and safety concerns for the duration of the Covid-19 emergency. evenue also accept that no bene t-in-kind charge will arise during the Covid-19 crisis on the provision of temporary accommodation to an employee if the accommodation made available is temporary in nature, and the reason it is provided is to mitigate against the risk of the transmission of Covid-19. The examples given include the provision of accommodation where an employee returns from an overseas trip and re uires self-isolation, or where there is a concern of transmission to other frontline sta in a household.

Summer 2020 dsba.ie Brian Broderick is a tax practitioner at O’Hanlon Tax Ltd

Taxation

An employer can pay . per workday tax free to an employee when • there is a formal agreement that the employee is re uired to work from home, the employee is re uired to perform essential duties of the employment at home, and the employee works for substantial periods at home.

The evenue Manual also currently provides that where employees work from home to support national public health objectives, as in the case of Covid-19, that . a day can be paid tax free. hile any amounts in excess of . per day should be subject to PA , evenue are willing to accept that 1 of household utility expenses heating and electricity are attributable to a home office so if 1 of utility expenses are greater than . per day then the employee can claim the di erence as a deduction. f an employer does not pay . per day to an employee working from home during Covid-19 then the employee can take a deduction of 1 of the utility expenses heating and electricity for the period.

Revenue indicate that if an employee uses part of the home for e orking it will not a ect the C T Principal Private Residence Relief position on the property on any subse uent sale of the property, and will not reduce LPT.

Covid-19 and Capital Taxes hile there have been no speci c measures introduced in respect of capital ac uisitions tax CAT the impact on the valuation of assets as a result of Covid-19 will have an impact on the CAT liability for bene ciaries of an estate, and the C T position may also need to be considered if assets are sold, and values have uctuated between the date of death and the date of sale.

Any rise in the value of a capital asset that is sold would be subject to C T currently , and depending on the date on which the CAT valuation date falls, the rise in value may also be subject to CAT currently so a rise in value may be subject to an overall e ective rate of 66 . ith property values impacted by Covid-19, there may be a tendency to include a valuation at the lower end of the range of a property’s estimated value for probate purposes, with a view to limiting the CAT payable by bene ciaries. owever, if the value included in the CA 4 an account of a deceased person’s estate is conservative and the property is sold for more, then depending on when the CAT valuation date arises and the date of the sale, there may be an exposure to both CAT and C T on the rise in value, or part thereof. hile a low property value included in the orm CA 4 can create issues as described above, a property value that is too high may also create difficulties for bene ciaries, as evenue will be expecting CAT to be paid on the basis of the values included in the CA 4. n such a case, unless there is a sale of the property close to the CAT valuation date, it may be difficult to convince Revenue that the property fell in value between the date of death and the CAT valuation date, if the market trend over the period does not support that movement. hile it may be clear following the sale that the date of death value included in the CA 4 was too high or too low, evenue are generally unwilling to accept a corrective affidavit with a di erent date of death

valuation, unless it can be shown that the original valuation was wrong, which can prove difficult.

As there may be certain difficulties in valuing property in the current market, if a property is likely to be sold following a death, then the executors could consider delaying the ling of the orm CA 4 until a sale price has been agreed so that this can be used to assist in establishing the value of the property at the date of death.

Succession/Wealth Planning hile a drop in the value of assets is generally not desirable, it can present families with an opportunity to pass assets to bene ciaries by gift while minimising CAT and or C T liabilities due to de ated asset values. There may be a limited window of opportunity to take advantage of reduced asset values if asset values rebound uickly post Covid-19 and or there is a downward adjustment to CAT thresholds.

Conclusion There is still much uncertainty about potential future adjustments to the tax system to deal with the sudden increased government spending in , and it is likely to be some time yet until the fallout from the crisis is clear. iven the global nature of the crisis and the low interest on the current government borrowing there is hope that any future measures introduced will not be as severe as the austerity that followed the nancial crisis and the property market collapse. Only time will tell. P

hile a drop in the value of assets is generally not desirable, it can present families with an opportunity to pass assets to bene ciaries by gift while minimising CAT and or C T liabilities due to de ated asset values the Parchment 51

Éadaoin Jackson is an associate solicitor at Holmes O’Malley Sexton

Debt Litigation

Debt Recovery

– LANDSCAPE CHANGE IN HIGH COURT SUMMARY JUDGMENT PROCEDURE A recent Supreme Court decision focuses on lenders using the High Court summary summons procedure for debt recovery. Éadaoin Jackson looks at what this decision means for lenders going forward

As a consequence of the Supreme Court’s decision in O’Malley, many lenders are seeking to amend their pleadings to introduce supplementary evidence

I

n 2008, Bank of Ireland advanced a mortgage loan facility of €225,000 to Mr. O’Malley.

Shortly thereafter, Mr. O’Malley encountered some nancial difficulties which eventually led to the cessation of loan repayments in November 2011. In 2014, Bank of Ireland sought summary judgment for €221,795.53.

In the High Court, Mr. O’Malley argued that Bank of Ireland’s pleadings were defective due to a lack of detail. Speci cally, Mr. O’Malley argued that Bank of Ireland’s special endorsement of claim did not comply with Order 4, Rule 4 of the Rules of the Superior Courts, which re uires claimants to state speci cally and with all necessary particulars the relief claimed and the grounds thereof ”. In their pleadings, Bank of Ireland had simply furnished a statement of account to the court as evidence to support their claim.

Mr. O’Malley claimed that each of the component elements of the claimed debt the principal debt amount, applicable interest rates and surcharges/ penalties needed to be speci cally explained.

The High Court granted judgment against Mr. O’Malley, notwithstanding the fact that the plainti s had merely furnished a statement of accounts and did not particularise the principal and interest in the amount claimed.

Supreme Court Appeal Mr. O’Malley appealed the High Court decision to the Supreme Court, arguing that Bank of Ireland’s

52 the Parchment

special endorsement of claim did not comply with Order 4, Rule 4 of the Rules of the Superior Courts.

Clarke CJ allowed Mr. O’Malley’s appeal, holding that Bank of Ireland’s special endorsement of claim lacked the necessary detail required under the Rules of the Superior Courts. In his judgment, Clarke CJ noted that it was not possible that “a person receiving such a summons could have the ‘necessary’ details to decide whether they should concede or resist”. t was stated that nancial institutions should provide a straightforward account of how the amount claimed is calculated and that Bank of Ireland’s special endorsement of claim in this case lacked sufficient detail. Thus, the court concluded that there was insufficient evidence to justify the High Court’s decision to grant summary judgment. The appeal was allowed and the matter was remitted back to the High Court so that Bank of Ireland could provide further evidence of the debt claimed.

The Impact of This Decision This decision will impact the way nancial institutions use the summary summons procedure for debt collection and will no doubt increase the level of evidence required to support a claim. As a consequence of the Supreme Court’s decision in O’Malley, many lenders are seeking to amend their pleadings to introduce supplementary evidence.

In his High Court decision in Havbell DAC v Harris, umphreys clari ed how the law stands post-O’Malley.

In this case, Humphreys J set out a four part test for parties seeking summary judgment The plainti ’s case must be sufficiently pleaded and particularised; The plainti must adduce evidence that establishes a prima-facie case against the defendant • The court must inquire whether there is a fair and reasonable probability that the defendant will be able to put forward a bona de or real defence to the plainti ’s claim and • The defendant must show that they have a defence which goes beyond a mere assertion and is supported by evidence. t is therefore clear that reconstituting a claim postO’Malley will often be a logistical engagement. This may pose problems for debt acquisition companies who may have incomplete records from the original lender and no contractual leverage to compel the original lender to assist. P

Summer 2020 dsba.ie

Membership

DSBA – Our Benefits T he ublin Solicitors’ Bar Association SBA is the largest bar association in reland, having been established in 19 . t is a representational and not a regulatory organisation, existing to promote the welfare and interests of its members who are solicitors. The SBA aims to promote a vibrant and up-todate profession and collegiality amongst solicitors. The SBA o ers the following bene ts to members

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rates for members for top uality CP events held all year round. The SBA is committed to providing a series of conferences and seminars in the next 1 months to meet the ongoing educational and information needs of its members.

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publications area available on topics including solicitors’ partnerships, residential tenancies, share purchase and sale agreements and family law and separation agreements. All these are in constant and daily use by practitioners.

DSBA Sports Events – olf, tag rugby, soccer, cricket, tennis events to promote collegiality and friendship amongst solicitors.

DSBA Younger Members’ Committee represents the interests, both professionally and socially, of the younger and most recently uali ed members of our profession, from newly uali ed up to ve years P . The ounger Members’ Committee of the SBA organises low cost CP events, lectures and other events for young solicitors.

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regularly updated website for information on all of the above. or renewal and new membership please complete the form below in full and return it together with a che ue bank draft postal order for the appropriate fee to Maura Smith, SBA, irst loor, 4 awson Street, ublin .

1 11 Su olk Street or call 1 67 6 9 to pay by credit debit card.

is available to con dentially assist every member of the profession nationwide with any problem whether personal or professional free of charge. The volunteers on the panel who provide the service are all solicitors of considerable experience, www.consultacolleague.ie.

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the Parchment 53

Appeals to the Supreme Court James Meighan provides an overview on appeals systems to the highest court in the land

T

he appellate jurisdiction of the Supreme Court has been amended signi cantly since the Thirty-third Amendment of the Constitution in 2013 which was approved by the people and provided for the establishment of the Court of Appeal.

Article 4. .1 of the Constitution provides that t he Court of inal Appeal shall be called the Supreme Court” and as Brice Dickson commented, w atever the jurisdiction of the Supreme Court should have been, there was little doubt that by the early years of the 21st century the institution was running very hard just to ensure that it did not fall catastrophically behind with its caseload.

The orking roup on the Court of Appeal published its report in 2009 and among other recommendations, it suggested the creation of a Court of Appeal. The Thirty-Third Amendment of the Constitution Court of Appeal Act 1 provided for the establishment of the Court of Appeal, to sit between the igh and Supreme Courts. Article 4. . sets out the new jurisdiction of the Supreme Court as follows “ t he upreme Court shall, sub ect to such regulations as may be prescribed by law, have appellate urisdiction from a decision of the Court of Appeal if the upreme Court is satis ed that (i) the decision involves a matter of general public importance or (ii) in the interests of ustice it is necessary that there be an appeal to the upreme Court.”

54 the Parchment

Appeals from the Court of Appeal to the Supreme Court The Supreme Court in ox .v. ahon 1 SC T 2 stated that the jurisdiction to bring a further appeal to the Supreme Court from the Court of Appeal is now con ned to situations where the decision of the Court of Appeal involves a matter of general public importance” or “in the interests of justice it is necessary” that there be an appeal. The Supreme Court has not set out prescriptive de nitions for either what constitutes general public importance or in the interests of justice. t is, however, possible to glean some guidance from various determinations and judgments of the court.

1. A dissenting judgment in the Court of Appeal is not in of itself sufficient to allow an appeal almer .v. inister for ustice and uality 1 SC T 4 , . Leave to appeal is likely to be granted where there is an inconsistency in the area of law which arises in the potential appeal. lster ank .v. gan 1 SC T , . The determination of the issue under consideration by the Supreme Court must have relevance outside the speci c circumstances of the case before the court.

“Leapfrog” Appeals from the High Court to the Supreme Court Article 4. .4 of the Constitution provides that notwithstanding the appellate jurisdiction of the Supreme Court to decisions of the Court of Appeal,

Summer 2020 dsba.ie James Meighan is an associate solicitor at Eugene F. Collins

the Supreme Court also enjoys an appellate jurisdiction from a decision of the igh Court if the Supreme Court is satis ed that there are exceptional circumstances warranting a direct appeal to it, and a precondition for the Supreme Court being so satis ed is the presence of either or both of the following factors: i the decision involves a matter of general public importance; ii the interests of justice. rom a review of the determinations and judgments of the Supreme Court, it is possible to conclude that the Supreme Court will consider whether there are exceptional circumstances warranting a direct appeal. owever, the public importance and public interest requirements in bringing an ordinary appeal must also be met in an application for a leapfrogged appeal arlow .v. inister for Agriculture, ood and arine 1 SC T . n ullivan .v. ea isheries rotection Authority 16 SC T 74 the Supreme Court considering the appropriate test in an application for leapfrog appeals stated “many leapfrog applications are likely to involve balancing the extent to which anything might be perceived to be gained by way of clari cation or re nement of the issues by an intermediate appeal to the Court of Appeal, on the one hand, and any uestion of urgency on the other. f the matter is likely to end up before the Supreme Court by ordinary appeal from the Court of Appeal,

Litigation

the Supreme Court will have regard for such cases and the eďŹƒcient use of court time, in such cases a leapfrog appeal may be admitted to the Supreme Court.

Cases Stated nder Article 4 .4. of the Constitution cases can be stated to the Supreme Court when a detained person has made an application for habeas corpus to the igh Court and the igh Court is satis ed that the detained person was being detained under a law which was unconstitutional. Appeals may come directly from the igh Court to the Supreme Court on cases which have been stated from the istrict or Circuit Court. This is a very limited jurisdiction as the igh Court must consent to the appeal to the Supreme Court.

Appeals Procedure The appeals procedure to the Supreme Court is set out in Practice irection SC16 and Order of the ules of the Superior Courts. otice of Appeal The notice of appeal is a precedent document, details to be inputted into the notice by the appellant or their lawyers. The information to be inputted into the notice includes whether the appellant is appealing the entire or part of the

The Supreme Court will consider whether there are exceptional circumstances warranting a direct appeal. owever, the public importance and public interest requirements in bringing an ordinary appeal must also be met the Parchment 55

These bars to entry to the Supreme Court ensures that the court can concentrate their resources on the appropriately important and signi cant appeals only

order and it must contain a concise statement of the facts found by the trial court. The notice of appeal, together with attested copy of the order being appealed, must be lodged no later than days from the perfection of the judgment or order being appealed. here no written judgment has been handed down, the appellant must lodge a certi ed and authenticated statement of any oral evidence and a transcript of the oral judgment with the registrar at the appellant s own expense. here a written judgment has been handed down, the appellant must lodge an attested copy of the judgment with the Registrar, preferably at the time of lodging the notice of appeal. A copy of the notice of appeal must be served within seven days after the notice has been lodged with the Supreme Court on all parties directly a ected by the application for leave to appeal. ocuments for use in proceedings in the Supreme Court may be served by any of the following methods: 1. personal service. . registered post. . electronic means where the person to be served has consented to service by such means and 4. otherwise provided for under the ules of the Superior Courts or any relevant practice direction. espondent s otice A respondent is re uired, within fourteen days of service of the notice of appeal, to lodge their respondent's notice with the Supreme Court and to serve the notice on the appellant and all other respondents to the appeal. The respondent’s notice should contain: 1. a statement of whether or not the particular respondent opposes the application for leave to appeal; . if the respondent opposes the application for leave, a concise statement of the grounds on which leave to appeal is opposed; . a concise statement on the grounds on which the

appeal will be opposed if leave to appeal is given, and 4. where the respondent intends, on the hearing of any appeal, to contend that the judgment or order appealed from should be affirmed on grounds other than those set out in the judgment or order being appealed, a concise statement of the additional grounds on which it is alleged that judgment or order appealed from should be affirmed. f a respondent intends to rely upon additional grounds to seek to affirm the order, which may not have been raised in the lower court, that respondent must identify these additional grounds in their respondent s notice.

Cross-Appeal f the respondent believes that the order being appealed should be di erent in some respect, they may commence a cross-appeal seeking to vary the order. The respondent must issue a separate notice of appeal setting out their case for the variation of the order.

Application for Leave to Appeal The Court of Appeal Act, 14 provides that an application for an appeal to the Supreme Court may be determined otherwise than with an oral hearing. The Supreme Court has commented on the importance of the papers being lodged at leave for appeal stage being correct as the application for leave will normally be decided on the basis of these papers. here the Supreme Court considers it appropriate, they may direct that the application be made by oral hearing. The court may also re uire the delivery of written submissions by the parties at the leave stage, if it is deemed that written submissions are appropriate. f leave to appeal is granted, a certi cate from the Supreme Court is issued, setting out the grounds on which the appeal may be brought before the Supreme Court. otice of Intention to roceed with Appeal Where the Supreme Court gives leave to appeal, the appellant must, within days of the grant of leave to appeal, serve on all respondents and lodge with the Supreme Court a notice of intention to proceed with appeal or if the appellant is abandoning the appeal, they must serve and lodge a written notice of intention to withdraw or abandon the appeal. irections earing The lodging of the notice of intention to proceed activates the appeal and the appeal will be listed on notice to the parties for a directions hearing. The papers to be lodged with the Supreme Court Office, unless otherwise directed by the court, in advance of the directions hearing are: 1. the judgment and or order being appealed. . the notice of appeal. . each respondent’s notice delivered.

4. the certi cate granting leave to appeal. . the notice of intention to proceed, and 6. any other document in the appeal to which any party proposes to refer at the directions hearing.

56 the Parchment

Summer 2020 dsba.ie

Litigation

ooks to be Lodged in Advance of the earing of the Appeal ach party to the appeal is re uired to deliver or exchange written submissions on the appeal in compliance with Practice irection SC16. The appellant's written submissions must be lodged with the Supreme Court oďŹƒce and served on each respondent within two weeks of lodging the notice of intention to proceed. The respondents must lodge with the Supreme Court oďŹƒce and serve upon the appellant their written submissions no later than two weeks following receipt of the appellant's submissions. ithin one week from the delivery of the respondent's submissions, a core book of appeal must be submitted to the Supreme Court oďŹƒce and served on all parties to the appeal. The re uirements for the content of the core book of appeal is set out in the practice direction. To ensure that the appeal does not lie in abeyance, the practice direction provides that the appeal books must be lodged within twelve weeks from the lodgement of the notice of intention to proceed.

Certi cate of eadiness When lodging their written submissions and the appeals books, the appellant must lodge a certi cate of readiness in the form provided in the practice direction. f possible, the parties to the appeal should con rm that the appeal is ready for hearing.

Alternatively, if the appeal is not ready for hearing, the certi cate should state this and set out the

further action required to prepare the appeal for hearing. cope of the urisdiction of the upreme Court to etermine Appeals The rules provide that the Supreme Court has wide powers in the manner in which it hears and determines the appeal. The Supreme Court may exercise and preform all the powers and duties of the court below and in determining the appeal, it may give any judgment and make any order which ought have been made and may make any further or other orders as the case re uires.

Conclusion Since the addition of the Court of Appeal to the legal apparatus of the State and the amendments to the constitutional provisions on the Supreme Court, the court has been empowered with the ability for real, substantial and considered judicial activism.

The Supreme Court now enjoys a wide discretion, based upon the two entry requirements set out above on the appeals which they deem appropriate for consideration. These bars to entry to the Supreme Court ensures that the court can concentrate their resources on the appropriately important and signi cant appeals only. The amendment brings the rish Supreme Court into line with other common law jurisdictions, for example the United Kingdom and the United States, which both control the appeals before their own Supreme Courts. P the Parchment 57

Cleaning Up Brendan O’Connell reviews the recent Court of Appeal judgment in esmond -v- unnes Stores CA1 and says the decision is a template for major retailers’ cleaning systems

O

n the 1st August 17 at Bishopstown Shopping Centre in Cork, the Plainti slipped and fell, su ering a fracture to her right hip. The Plainti subse uently initiated a Personal njuries Claim against the efendant, unnes Stores, which was ultimately litigated in uly 19 at Cork igh Court and subse uently reviewed by the Court of Appeal with udgment delivered by Ms. ustice aherty on the 6th May .

The contents of the Trial and subse uent udgment of the Appeal Court are noteworthy for retailers. n the defence of the case, unnes Stores produced a total of 1 hour of CCT stills prior to the accident, which showed a unnes Stores employee who was an employee with the sole purpose of patrolling the shop oor space to detect and clean possible spillages traverse the aisle in which the incident occurred roughly every 1 minutes.

Both liability experts for Plainti and efendant acknowledged that the fre uency of the inspection by the employee of the efendant was ade uate. The Court heard from the liability expert for the Plainti who acknowledged that the fre uency of the cleaning system was ade uate but uestioned the vigilance of the unnes Stores employee. e pointed to the fact that on CCT the unnes Stores employee seemed to focus straight ahead of her rather than carrying out vigilant checks of the entire aisle space.

The unnes Stores employee gave direct evidence to the e ect that, the task of cleaning the aisles was uite a boring task and that at times her mind could, “wander” .

The Liability xpert for the Plainti also pointed out that whilst there was training provided as to the fre uency of the checks and the manner in which

58 the Parchment

a spillage should be cleaned there was no emphasis placed on how employees should be vigilant and alive to spillages throughout the aisles. ncidentally, the Plainti ’s Liability xpert also pointed to the fact that the efendant’s employee should be retrained on yearly intervals and it had been in fact ½ years since the employee had been trained. t was interesting to note that the Trial udge dismissed this as being a point of relevance but did take into consideration ultimately that whilst the training contained a detail as to the fre uency of checks and the method by which spillages should be cleared, there was no detail in relation to vigilance. nfortunately for the efendant the uality of the CCT which was a series of CCT stills could not ade uately point out as to when exactly the spillage occurred. t was the case as put forward by the Defendant that the spillage had in fact occurred immediately after the last occasion on which the cleaner traversed the aisle but immediately before the Plainti came to harm which would have been a time lag of a mere number of minutes. That does suggest that even the most sophisticated cleaning system could not have detected the spillage in time to save the Plainti .

The Trial udge decided that unnes Stores had not discharged the burden in proving when the spillage precisely occurred and in fact, the Trial udge felt that the spillage had in fact occurred much earlier and it was simply the case that the spillage was simply missed by the unnes Stores employee notwithstanding that she had traversed the area.

On appeal, the efendant pleaded that the Trial udge’s reliance on the volume of customers that had passed through the aisle earlier in the hour and her concluding that the spillage must have emanated from them was an error and there was no basis for this.

Summer 2020 dsba.ie Brendan O’Connell is a partner at Ronan Daly Jermyn Solicitors

The Defendant urged the Court of appeal to consider the fact that a person had traversed the precise area without difficulty where the Plainti came to harm approximately minutes before the Plainti ’s fall and that the Trial udge had failed to ade uately consider this point in deciding when exactly the spillage occurred. udge aherty felt that the analysis of the Trial udge may not have been as detailed or forensically comprehensive as one may have liked but in her view, had analysed appropriately both sides of the argument at Trial. The view of udge aherty was sought with approval by onnelly and Collins .

What Have Retailers Learned from the Case?

1. Frequency of Checks: t seems now to be broadly accepted that the fre uency of checks on a large retail space is deemed ade uate at 1 -minute intervals.

2. Quality of Checks: t is not only appropriate to have appropriately fre uent checks in place, but those checks must be of a high standard uality and those engaging in such checks must be vigilant for spillages and notwithstanding an ade uate cleaning system in place in terms of fre uency, that system must also be executed with uality, precision and vigilance.

3. Training: Ade uacy of training was a consideration of the Court in the above matter in circumstances where the udge and the liability expert for the Plainti whose evidence was accepted pointed to the lack

Litigation

of detail in the training program in relation to vigilance during the execution of cleaning duties.

4. Quality of CCTV The efendant was relying on one hour of successive CCT stills. n my experience, the uality of CCT is a vital weapon in the armoury of a efendant etailer. n this instance the uality of the CCT for unnes Stores let them down, in circumstances where they were unable to identify precisely when the spillage had occurred. One wonders had the CCT been of a higher uality, would unnes Stores have been in a position to prove the spillage had occurred as they had pleaded immediately prior to the fall and it was simply the case that the Defendant cleaner did not see the spillage because it had not occurred when she traversed the location for the nal time prior to the incident occurring.

n my experience, the uality of CCT is a vital weapon in the armoury of a Defendant Retailer

Practicality V Reality The maintenance of a sophisticated and dedicated cleaning system for an extensive retail space that would ultimately stand up to scrutiny is extremely taxing on a commercial retailer from a staffing nancial and time perspective.

The investment in a high uality CCT system that can be married with speci c and detailed training for sta and with the deployment of dedicated cleaning sta , who would traverse the retail space at 1 minute intervals and exercise a large degree of vigilance and care would, in my view, negate substantially against any public liability claim that a retailer may ultimately face. P the Parchment 59

Killian O’Reilly is a partner at Fieldfisher.

Emma Falloon is a solicitor at Fieldfisher

Litigation

Update on Nervous Shock Claims Killian O’Reilly and Emma Falloon look at the recent High Court judgment in Lisa Sheehan v Bus Éireann/Irish Bus and Vincent Dower C 16 which provides a useful update on nervous shock cases in reland

t is clear that the rish courts have adopted a more exible approach to the categorisation of Primary’ and Secondary’ victims than that of the nglish courts

T

he case dealt with two central issues 1. The nature and scope of the duty of care and . hether the law recognises a right of recovery where the primary victim is the wrongdoer rather than the blameless third party.

Case Facts n anuary 17, the Plainti Lisa Sheehan, a 6 year old hairdresser from Banteer, Co. Cork was driving home from work when she came upon the scene of a fatal accident involving a car and a bus. Although she did not actually see the accident take place, some debris from the collision hit her vehicle causing her to stop. hen she got out of her vehicle to investigate, she discovered a partially decapitated body which she initially thought was a child. t later transpired that this was the deceased driver of the car. She telephoned the emergency services and searched the surrounding area for further victims.

The Plainti claimed that she developed PTS as a result of what she witnessed that night. She su ered a panic attack three days after the accident and attended her P. She took periods of time o work due to anxiety, continued to su er ashbacks and nightmares and ultimately left her job as a hairdresser in ebruary 19.

A. Duty of care n the igh Court, Mr ustice eane considered whether the efendants owed the Plainti a duty of care. e considered the ve steps cited in the leading rish authority on negligently in icted psychiatric injuries, Kelly v Hennessy 199 These are 1. id the plainti su er a recognisable psychiatric illness . as the psychiatric illness shock induced . as the injury caused by the defendant’s negligence 4. as there an actual or, in this case, an apprehended physical injury . id the defendant owe the plainti a duty of care not to cause the plainti a reasonably foreseeable injury in the form of psychiatric illness 60 the Parchment

Ms Sheehan clearly satis ed the rst four criteria and it was the fth step which the court had to consider in detail.

The efendants argued that the Plainti ’s psychiatric injuries did not give rise to any cause of action recognised by the law and that they did not owe her a duty of care on the basis that she was a secondary victim’ to the accident. They sought to rely on the principles set out in the nglish case law of Alcock v Chief Constable of South Yorkshire Police 199 1 AC 1 which distinguished between primary and secondary victims. Mr ustice eane acknowledged that this type of categorisation of victims was not applied by the rish courts and that the law on primary secondary victims in nervous shock was far from settled. ltimately, he was satis ed that the Plainti was a primary victim on the basis that her car had been struck by debris from the crash and on the basis of the Plainti ’s role as a rescuer.

B. Right of Recovery As a parallel argument, the efendants also argued that Ms Sheehan’s claim must fail because, as a matter of policy, there is no liability in negligence where the primary victim was the negligent defendant and where the shock to the plainti arose from witnessing the defendant’s self-in icted injury. Mr ustice eane felt that this position was contrary to the rish Constitution and would be capable of causing unfairness and injustice in our legal system. e held that the efendants were liable for Ms Sheehan’s psychiatric injuries, su ered as a result of witnessing the defendant driver’s own injuries and awarded the Plainti general damages in the sum of , .

Conclusion This judgment is signi cant as it affirms the importance in nervous shock cases of satisfying the criteria set out in the Kelly case. t is clear that the rish courts have adopted a more exible approach to the categorisation of Primary’ and Secondary’ victims than that of the nglish courts. Parties should bear in mind that the individual facts of each case will be taken into account in considering whether a duty of care’ is owed and the Plainti ’s right of recovery’. P

Summer 2020 dsba.ie

Tribute

Conor Connelly RIP - A Tribute 1976 - 2020

T

he sudden death at the age of 44 of Dublin based solicitor and former Roscommon inter county footballer, Conor Connelly sent a tsunami of shock and grief through both the GAA and legal communities of Dublin, his native oscommon and his adopted home of O aly.

Before his untimely death, Conor was an accomplished litigator in the well-known Ballsbridge rm of ussey raser where he practised in personal injury and general litigation and in the area of employment law.

Born to Jimmy and Nora Connelly who ran a farm machinery garage in the village of Creggs, Conor displayed a prodigious sporting aptitude from a very young age. Creggs as an outpost of sporting ecumenism the young Conor’s burgeoning sporting prowess was shared equally between rugby and Gaelic football. The call to the Primrose and Blue colours of the Roscommon jersey was too great however and he played three years on the county minor football team winning a Connacht minor championship medal whilst still nder 16. e was educated in the famed football nurseries of oscommon CBS and St Mel’s College, Longford for whom he was part of a Leinster Colleges A winning side in 1994. At C Conor was part of a Sigerson Cup side that was festooned with the cream of intercounty football talent. Modest to a fault, he once claimed that, by taking his place in a forward line that contained the likes of Trevor iles, Brian ooher and erek Savage he lowered the tone of the side ’ But the Creggs man could mix it with the best of them on any stage. This was shown clearly in a near Elysian season for him in 2001 where he played no small part in winning a Connacht Senior title for the ossies lowering the colours of both alway and Mayo en route , represented his province in the Railway Cup and his country as part of the nternational ules panel.

2001 was a momentous year for Conor in every sense. e entered the PPC 1 course in Blackhall Place and one can still see in the mind’s eye the mop of black hair falling over his forehead as he lined up another pot on the pool table with precision and care. e was apprenticed to the rm of ughes Murphy and spent several years there post uali cation before joining ussey raser.

Since Conor’s death several colleagues have noted that he had all the attributes of a rst class solicitor. One colleague said that a good solicitor’s practice needs a nder, a minder and a grinder, in Conor you had all three . Others have testi ed to his

approachability and collegiality, that he was a go-to guy for advice on those tricky practice points that we all relish a second set of eyes on. e has been described as a discreet con dante for colleagues that needed advice.

Another suggested that his innate common sense, acute sense of humanity allied to his intellectual rigor set him out as an excellent future candidate for the bench.

The barrister with whom he worked closest with in his career said that he put clients at ease almost immediately and it would be as if they had known him for years. e had the utmost integrity, never judged anyone and had so much time for anyone he met. e always greeted his work as a lawyer with passion and energy .

A neighbour of Conor described him to me in the following terms he was a legend in our community but a very humble fellow, 6 points in the Leaving, Sigerson, ailway Cup, drew in silage for two summers .

All are of the same consensus that Conor Connelly was above all a devoted husband and father to his three children and one of those marvellous community minded people who had become a cornerstone of his adopted home of Ballycumber, County O aly. s cailli int mh r Conor as an gcursa dl thi l. ’fh g s lorg buan ar an eagra ocht anseo. Bh ardmheas ag c ch air. Maireann a bhean ch ile Claire agus a tri r leana , Caragh, ossa agus Owen. o cinnte n bheidh a leith id ar s ann. P G O’C

Modest to a fault, he once claimed that, by taking his place in a forward line that contained the likes of Trevor Giles, Brian Dooher and Derek Savage he ‘lowered the tone of the side ’

the Parchment 61

DSBA Family Law Guide

The DSBA congratulates Ms. Justice Mary Irvine on her appointment by the Government in June 2020 as the new President of the High Court.

She was called to the Bar in 1978 and took silk in 1996. After over a decade practising as Senior Counsel she was appointed a Judge of the High Court in 2007. She was in charge of the High Court Personal Injuries list from 2009 through to 2014.

When the Court of Appeal was established in 2014, Ms. Justice Irvine was appointed a judge in the new appellate court. In 2019, she was elevated to the Supreme Court.

A demanding and challenging role, the President of the High Court will be responsible for getting the High Court back to full hearings as soon as is permissible. We wish Ms. Justice Irvine every success in her new position.

62 the Parchment

Mr. Justice John Jordan launched the DSBA’s Family Law Guide

Photos: Paul Sherwood

New President of the High Court

The DSBA published a “Guide to Changes in Practice and Procedure in Family Law in ublin arising from the Covid-19 Emergency” and it was launched by Mr. Justice John Jordan at the Four Courts at the end of May 2020.

The Guide is designed to assist DSBA members who practise in the area of family law and it is free to download at www.dsba.ie The 4-page Guide provides guidance and insight into operational procedures in the District, Circuit and High Courts as a result of the Pandemic.

The DSBA would like to thank Keith Walsh Solicitor for his assistance in compiling this Guide and thank Ms. Justice John Jordan for launching it.

DSBA President Tony O’Sullvian with author of the DSBA Family Law Guide Keith Walsh

Summer 2020 dsba.ie

News

Mr. Justice Donald Binchy appointed to the Court of Appeal Sean Gallagher RIP

The DSBA sends its congratulations to Mr. Justice Donald Binchy on his appointment to the Court of Appeal on the 18th March 2020. Judge Binchy was formerly a Solicitor who practised in County Tipperary. He was actively involved with the Law Society of Ireland and became its President in 2011.

2014 saw his appointment as a Judge of the High Court where he sat until earlier this year. The appointment of Ms. Justice Marie Baker to the Supreme Court created a vacancy on the Court of Appeal which udge Binchy has now lled. e wish him continued success in his new role.

The DSBA were deeply saddened at the passing of our colleague Sean Gallagher in April 2020. He was the Principal of Sean Gallagher & Company Solicitors at Merchant’s uay, ublin a practice he started in 1994. e uali ed as a solicitor in 1975 and had only recently begun to ease back from the daily grind of practice.

Colleagues respected Sean for his professionalism always prepared and fearless in advancing his client’s cause. He was immensely popular and always had a word of advice for a younger colleagues.

Sean will be remembered by many for his warmth, kindness and great sense of fun.

He is a huge loss to the legal community and we extend our sympathies to his wife Noelle, family and friends. Ar dheis Dé go raibh a anam dílis.

Sterling Service The DSBA sends its good wishes to Mr. Justice Peter Kelly who retired as President of the High Court in June 2020. He was rst appointed a udge of the igh Court in 1996 having been called to the Bar in 1975. Mr. Justice Kelly became the presiding judge of the Commercial Court in 2004 and subsequently was appointed President of the High Court in 2015.

On the morning of his retirement on the 17th June last, a large gathering of Supreme Court, Court of Appeal and High Court Judges assembled in the judges yard at the Four Courts for a surprise guard of honour and prolonged round of applause.

We wish Mr. Justice Kelly continued good health and happiness in the years ahead. the Parchment 63

Closing Argument Stuart Gilhooly

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

The requirement to attend before another solicitor to affirm a document is archaic in any event but the pandemic has certainly undermined the entire practice

Justice Delayed S

o how was it for you? The kaleidoscopic constellation of reactions to our time in captivity could form a psychology textbook on its own. Some were nervous or scared, others angry at the loss of freedom and income while many revelled in a simpler, slower lifestyle which has been anathema to the 21st century hubbub of constant activity and “always on” work culture. This column?

We just howled at the moon.

For many, the transition from fear to frustration took months. This column got there at warp speed. The initial reaction was that lockdown was a necessity and everyone, including the courts and the legal system, must play their part. While the disease was at its most virulent in April, there seemed little option but to regard justice as collateral damage in the ongoing global meltdown.

While extremely urgent matters were admirably handled and resolved and some ongoing cases were handled remotely, the majority of applications before the courts have been adjourned. Many of these are interlocutory issues and although some will have been concluded by consent, most will have to await hearing on a phased basis over the remainder of this year. This inevitably delays the substantive hearing.

In the High Court, at time of writing, no case involving witness evidence has been heard since last March.

While this is largely unavoidable and 64 the Parchment

no criticism is warranted towards the courts service, it lays bare the inadequacy of our courts system and the abject failure to bring technology up to a level even remotely acceptable in 2020. hile a lot of well-intentioned soundings were made about remote hearings and how these could make inroads into the backlog, it soon became apparent they were a poor substitute for the real thing. ears of nancial neglect by government in the courts has meant that the system being used was less than ideal and continued use of manual ling of documents meant that its advantages were quickly devoured by its shortcomings.

A classic example of how anachronistic some of our practices have been is the ongoing asco over the signing of affidavits. The re uirement to attend before another solicitor to affirm a document is archaic in any event but the pandemic has certainly undermined the entire practice.

Attempts to pass legislation or amend court rules to allow for virtual swearing all came to nought so affidavits and declarations remained unsworn.

The cumulative e ect of these and many other snags in the fabric has been the gradual unravelling of access to justice.

One of the most fundamental legal truisms is that justice delayed is justice denied.

While it was helpful that lawyers were deemed to be essential workers during the lockdown period, it would seem that the

courts were not deemed an essential place of work. Indeed, as this column is being written, on the day after pubs, restaurants and all shops reopen, the courts remain inaccessible to the majority of litigants.

While this is of little concern to the general public and the media who tend to look down their noses at others who seek to have their rights vindicated, largely through an ongoing propaganda campaign against lawyers and more recently personal injury victims, it is our job to stand up for those with no voice.

As a profession, we like to bathe in self importance and convince ourselves that we play a role as essential as doctors, politicians, journalists and other institutional protectors or assailants. Any such notions can now be consigned to the scrap heap.

We may be essential workers but our work is not deemed essential. Of course, health must come rst but we must start to believe in ourselves and the service we provide. Justice is becoming an optional extra, like attending a concert or a football match.

The new President of the High Court has hit the ground running and made encouraging progress. The courts will shortly re-open and great credit is due to those who have managed to get the show back on the road. But this may not be the last time the virus wraps its claws around the justice system. The lessons of the lockdown must be heeded. P

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