Parchment Summer 2023

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Managing the problem of drugs and alcohol at work

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Welcome to the Summer edition of the Parchment. Of particular concern to practitioners has been the introduction of two important aspects of law which have taken many by surprise and which have caused significant alarm.

The Enduring Powers of Attorney (EPA) legislation was introduced in April 2023 as part of the final pieces of the Assisted Decision-Making (Capacity) Act jigsaw – see pages 8-9. The role of the solicitor has been bypassed to some extent on the one hand by the “online model” espoused. However, the significant unfair responsibility now placed on solicitors on the other hand is deeply concerning where there is an expectation that we sign off on a process that we were not involved in. However, there is a genuine fear that the new regime is a fait accompli and that it will be open to the undue influence abuse of donors.

Much around the same time as the introduction of the new EPA system, the Injuries Board (PIAB) announced new rules which come into effect in early September –

see Stuart Gilhooly SC’s Closing Argument on page 64. One of these new rules is that a medical report must accompany an application to PIAB. There are times when it can prove difficult if not impossible to obtain a medical report for a client within the time or even within a reasonable time thereafter. From September, cases will become statute-barred if there is no medical report lodged with PIAB within two years of the accident. This heaps immense pressure on practitioners who will be blamed for the delay of a third party (i.e. the doctor).

Add in a raft of new regulations which came into effect on the 1st July pertaining to new Solicitors Accounts Regulations (see pages 10-13), the question must be asked –

What next?

And how much more burdensome red tape can the profession take before its members get tripped up?

John Geary jvgeary@gmail.com

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

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

of an advertisement in the Parchment does not necessarily signify of cial approval by the DSBA, and although every effort is made to ensure the correctness of advertisements, readers are advised that the association cannot be held responsible for the accuracy of statements made or the quality

GERARD O’CONNELL Chair of the Parchment Committee

SUSAN MARTIN DSBA President

MATTHEW KENNY DSBA Vice President PAUL RYAN CPD Director Commercial Committee

NIALL CAWLEY Honorary Treasurer

JOAN DORAN Secretary

KILLIAN O’REILLY Chair of Litigation Committee

AVRIL MANGAN CIARA O’KENNEDY Chair of Employment Law Committee

CIARA HALLINAN Chair of Criminal Law

EIMEAR O’DOHERTY Chair of Inhouse

Capel Building, Dublin

STEFAN O’CONNOR

PATRICK LONGWORTH Chair of the Younger Members Committee

JESSICA HICKEY

Enduring Powers of Attorney

DSBA President Susan Martin provides an update on the recent introduction of new legislation on Enduring Powers of Attorney which has caught the legal profession by surprise

The New Solicitors Accounts Regulations

Niall Cawley casts a cold eye on the new regulations which came into force on the 1st July 2023

Landmark Spectator Sports Liability Case

Craig Sowman assesses the importance of a recent Court of Appeal ruling

Vacant Homes Tax Explained

Domhnaill Small examines the new tax and comments on the procedure, exemptions, and implications of non-compliance

New State Litigation Principles

Rosaleen Byrne and Catherine Derrig scrutinise new principles which are intended to ensure the State acts as a “model litigant”

County Registrar Powers Under Scrutiny

Hilda Mannix considers a recent High Court decision of Hyland J

Personal Injuries Summons Renewal Update

Stephen McGuinness and Kevin Kelly say a recent High Court decision offers an insight on the

Dublin Solicitors Bar Association

T: 01 670 6089

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principles governing the renewal of a Personal Injuries Summons

Maximum Compensation at WRC

Geraldine Carr and Denise Moran write that a recent sexual harassment decision of the WRC serves as a cautionary reminder for employers

Ruling Family Law Terms of Settlement

DSBA President Susan Martin reviews the position and proofs when parties agree consent terms in matrimonial matters

New Work/Life Balance Law

Patrick Walshe delves into the Work Life Balance and Miscellaneous Provisions Act

Piercing the Corporate Veil

Lorna Osborne and MairiClaire Power report on the unprecedented High Court case of Powers v Greymountain Management Ltd (in liquidation)

Supreme Court has say on suspending employees

David McCauley says that recent Supreme Court judgments merit close scrutiny by any employers considering the suspension of an employee

Intoxicant Testing in the Workplace

Jennifer Cashman assesses the position pertaining to drugs and alcohol in the workplace

Message

Gheibheann Cos ar Siúl Rud Éigin

It has been a busy few months in the Dublin Solicitors Bar Association and when finding words to describe to you what has been happening I thought of this seanfhocal – which is roughly the equivalent of “If you want something done, ask a busy person”!

Since the last edition of The Parchment at Easter, our seminar programme has continued bringing the latest information and training; we have held social events for our Northside and Southside colleagues and the managing partners of our largest members; we have had the first of our annual golf outings at Killeen Castle, and the annual DSBA v Bar cricket match; our annual soccer league is ongoing; we have engaged with stakeholders such as LSRA, Law Society, Minister for Justice and Decision Support Service; and, importantly, we have continued to advocate and represent the interest of our members and their clients.

That it is impossible to separate solicitors from the interests of their clients has been brought home to me recently in various matters where DSBA has made representations.

Firstly, in respect of prisoners accessing legal advice – following representations made by members, our Criminal Law Committee, through the DSBA, has entered into correspondence with the Department of Justice to request engagement on the issue of clients’ access to legal advice in a timely way when they are in prison or on remand.

Secondly, with regard to the rates of pay under the Criminal Legal Aid Scheme, it is concerning to us that more than a decade ago the rates of pay dropped substantially and have since remained static – this is problematic when considering that our colleagues represent those whose liberty is at stake. It is worth remembering that these colleagues continue to defend their clients to the highest standard without fuss, fear or favour, and have the might of the State against them. It cannot make economic sense for our criminal law colleagues to take on certain legal aid cases. In an age where regulation has increased over time and where significant resources must be put into demonstration of compliance, there is little room in any practice to take on work which runs at a loss. This drives solicitors out of providing this service and consequently may lead to a representation deficit for clients. We have written to the Minister for Justice and

hope to engage with her soon with a view to arriving at a resolution of this matter.

Thirdly, with regard to the new regime in respect of the creation of Enduring Powers of Attorney, the digital interface for creating EPAs took many members of the public and indeed the profession by surprise. The reality for many vulnerable clients is that they have difficulty with the online forms and would wish for their solicitor to be involved at the earliest possible point in writing their EPA. As can be seen later in this edition, the DSBA successfully engaged with the Decision Support Service and we believe that we have arrived at a workable solution for those clients who cannot manage the online EPA and who wish to instruct a solicitor to act on their behalf. I want to thank sincerely the Director, Ms Áine Flynn, and her staff for engaging with us so quickly, allaying many of our concerns, and for working with us to ensure that our clients’ interests are protected. Our contact with DSS is ongoing and we hope to continue the constructive and cordial nature of our engagement with them into the future.

I want to note also the representation made by members of the Litigation Committee, and in particular Barra O Cochlain, in engaging with the Court Services on, amongst other things, opening hours/appointments for Stamping Office, Central Office and other Court Offices. Our representation with regard to District Court scale costs is ongoing and we will keep you appraised of our progress.

The DSBA, when representing our members’ concerns, and where appropriate, has consistently adopted an approach of finding a solution rather than pointing out problems or unnecessarily resisting change. We believe that focus on the practical means that we have been, in many cases, in a position to reach consensus with others to find a way forward for our members and their clients. As the seanfhocal goes – Níor bhris focal maith fiacail riamh [a good word never broke a tooth].

I hope that you will take a well-deserved break over the summer, and I look forward to meeting you at one of our autumn events.

Susan Martin, DSBA President

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DSBA Annual Cricket Match

DSBA Annual Cricket Match against the Bar

The Annual John F Buckley cricket match between The DSBA v The Bar of Ireland took place on the 23rd June 2023 at the Leinster Cricket Club, Observatory Lane, Rathmines. The match is now in its fifth year and the teams played for the John F Buckley trophy, named after the late John F Buckley who was a former DSBA President. The Bar won the match, described by spectators as a pulsating game and which came down to the last over. Maitiú Ó Dónaill, partner at Beauchamps, bowled the final ball of the match, pitted against Martin Block BL. The Bar team made the winning run. Well done to all who participated in the event, which was very social and collegiate.

– L-R Back: Ciaran Mandal, Roly Budd, John Berry, Marty Block, Tony Kerr SC, Niall Buckley, Marty Dwan and Niamh Gaughan.

L-R Front: Diarmuid

O’Leary, Domhnall Ryan, Conor Doyle and Andrew Corrigan

Left: Niall Buckley and Susan Martin Far left: Charles Lysaght and Tom Dillon

Left: Marty Dwan BL and John Berry BL

Left: The Bar team

Far right: Stephen Power batting and Roly Budd BL wicket keeper

team – Top row

L-R: Tim McDowell, Aidan Buckley, Matthew Kenny, Stephen Power, Dave McAlinden and Mataka Flynn. Bottom row L-R: Owen Henson, Gerry Gallen, Tony O’Sullivan and Mark Bergin

Far right: Kevin O’Higgins and Tony O’Sullivan

Mark Bergin, Marty Block, Marty Dwan and Tim McDowell

Far right: Niall Cawley, DSBA President Susan Martin and Mary Walsh

Photography: Owen O’Connor

Left: Stephen Power bowling as Niall Buckley watches on Far left: Dave McAlinden

Left: Domhnall Ryan, Conor Doyle, Diarmuid O’Leary and Andrew Corrigan Far left: Mark Bergin batsman running, Roly Budd BL wicket keeper

Right: DSBA

Right:

Enduring Powers of Attorney –AN UPDATE

The recent introduction of new legislation on Enduring Powers of Attorney has caught the legal profession by surprise and there is considerable concern about the role that solicitors are now expected to play. DSBA President Susan Martin provides an update

Irecently learned that Enduring Powers of Attorney (“EPAs”) are a type of Ulysses contract. Now, in case you are imagining James Joyce wandering around Dublin on 16th June 1904 looking for Roger Greene Solicitors to provide the Legal Practitioner’s Certificate, I mean the other Ulysses, the one from ancient Greek mythology.

The story goes that Ulysses knew that the Sirens (humanoids with magical voices) had this amazing song, but that it rendered anyone who heard it irrational and, in the past, led to many men drowning under its spell. Ulysses made an agreement with his men that, when passing the Sirens on the ship, they would seal their own ears with wax and lash Ulysses to the mast with ropes. The pact that they made meant that if Ulysses became irrational on hearing the Sirens song, that his men would restrain him, using swords if necessary. So, Ulysses hears the song, becomes unsound, but his men keep him and the ship safe until he is back to his senses.

As you know, EPAs allow people to make choices about their future in the event that their capacity is compromised. They have been an important part of our legal landscape over the past 25 years and have meant that many could choose to avoid the old Wards of Court system.

The commencement of the Assisted DecisionMaking and Capacity Act 2015 (as amended) in April 2023 has meant changes in the way that EPAs are created and enrolled. Firstly, there is a requirement

to register the EPA with the Decision Support Service at the time of its creation and, separately, the forms are issued by the DSS for each individual user. Finally, the EPAs are created digitally, rather than on paper.

For many practitioners and clients, it was surprising that the forms would not be available via Statutory Instrument in the way that the 1996 legislation provided and, additionally, the digital interface caused some clients difficulty. There is often a distance between theory and the reality of the implementation of legislation and this was one of those times.

As soon as the reality of the new system became apparent, the DSBA identified the issues as follows:

• Necessity for the Donor to register directly with and create account with Decision Support Service (“DSS”);

• Requirement for the Donor to use the online prescribed EPA form only;

• Obligation on Donor to prove their identity through use of Public Services Card and then creation of MyGovID;

• Compelling the use of PSC and MyGovID;

• Workaround for the identity is through the use of paper forms on an exceptional basis – these forms can only be provided to the Donor directly;

• EPA forms only available to the Donor directly and cannot be drafted by their solicitor;

• Exclusion of the solicitor from oversight of the EPA process and removal of the solicitor from any advisory role in connection with the preparation of

the EPA (compared to previous system) – our limited involvement comes at the end, after the EPA is created, to certify whether the Donor understands the contents of the EPA as presented by them to the solicitor and enters into it freely;

• Obligation on solicitor to certify that they have no reason to believe that the Donor is executing the instrument as a result of fraud, coercion or undue pressure – without oversight of the entire procedure;

• Section 96 of the Act ‘Investigations by Director’ which provides that any person can be summonsed to attend as witness before the Director of DSS, to be examined on oath and to produce to the Director any document in the power or control of the witness.

Once we wrote to the DSS and notified them of our concerns, they replied immediately and offered to meet us. We found the meeting constructive and cordial and it was clear that both DSS and DSBA had the same goal – to encourage as many people as possible to make EPAs and to assist the most vulnerable in doing so, safely.

My message to our members, in early June 2023 after the meeting noted that:

• If a Donor wishes to instruct a solicitor in assisting them to create an EPA, there is no impediment to this;

• If a solicitor is acting, that will be noted by the DSS on their system;

• The DSS encourages as many Donors and attorneys as possible to use their online portal as they believe it will be more efficient in the future (especially when it comes to enrolment of the EPA);

• If a client wishes to instruct a solicitor to act on their behalf in the creation of an EPA, the DSS will, on receipt of a written authority, accept it and engage with the solicitor directly;

• There is no obligation on the Donor to provide PPSN (see ID verification form);

• The DSS will make available ID forms on the website;

• If a solicitor writes with letter of authority and completed ID forms, pre-populated forms with a unique [for the individual donor] identification code will be sent by DSS to the solicitor;

• Once the solicitor has prepared the EPA, it can be scanned as a PDF and sent to DSS and they in turn will upload it onto their system.

It may be that in the course of preparing and registering EPAs under the new regime further issues will arise, and members can be assured that DSBA will continue to monitor and make representations where appropriate, as well as provide updates.

I want to take this opportunity on behalf of DSBA to thank Ms Áine Flynn, Director, Decision Support Service, and her staff for their quick response, courtesy and positive engagement throughout.

If a donor wishes to instruct a solicitor in assisting them to create an EPA, there is no impediment to this

Susan Martin is the President of the DSBA and principal of Martin Solicitors, Clarehall, Dublin 13

The New Solicitors Accounts Regulations

Some may regard this as a dry if not turgid topic and it may remain that way until you have an inspector from the Law Society taking you to task on same. We are expected and indeed required to know this. Niall Cawley examines the new regulations

The object of this article is to offer a guide, as succinctly as possible given the subject matter, to the main changes introduced to the Solicitors Accounts Regulations. Some changes are welcome and are logical and some are probably going to be unwelcome.

The last major update of the Solicitors Accounts Regulations was in 2001 though there were a number of alterations and a final qualification in 2014. The 2014 Regulations ran to in excess of sixty pages and the latest Regulations which are being brought forward under Statutory Instrument 118 of 2023 run to a similar number of pages.

When Do They Apply To You?

These Regulations came into force on the 1st of July 2023. That doesn’t mean that they immediately apply to you. They will apply from the beginning of your next year. By way of example this writer’s year is the 31st of October and in consequence the new regulations will apply to me on the 1st of November 2023 moving forward and the old regulations will continue to apply until that date. If your accounting year commenced on the 1st of July last, then the new regulations apply immediately.

The Balancing Date

Currently every six months you have to bring your ledger cards into balance, that is to say all ledger cards for the Client Account must be positive or at zero but not negative and all Office Account balances and ledger cards must be negative or at zero.

This balancing date requirement under the regulations has now been increased to every three months which means it happens four times a year or every three months of your accounting year. Failure to do so is a breach of the Solicitors Accounts Regulations.

It should be noted that the obligation for an Accountant to report an imbalance still only applies to imbalances that arise on the expiry of every six-month period as is the position now. That report will be made in the Accountant’s report to the Law Society following the end of your accounting year.

Executor Accounts

Until now where a Solicitor was acting as sole Executor of an Estate the Solicitor was obligated to open a separate Executor Account because he or she was regarded as being in control of a trust. That stipulation is now gone which means that you can use your Client Account where you are acting as sole Executor in the Estate as and from when the regulations next apply to you.

This provision is dealt with in the Definition Sections (Section 2) providing that a controlling Trustee is not “a Solicitor who is a Personal Representative of an Estate”.

Holding Client Monies (Regulation 5)

Going forward you may only hold monies in the Client Account if it is in respect of the provision of Legal Services. You may hold the money for no other purpose. This is aimed in part at clearing out

historic balances and there is more of this later in the article, and it also means that if a client asks you to hold monies following the completion of a transaction you may not do so, and the time periods are set out hereafter.

Similarly, Solicitors can no longer hold monies received by them as an authorised investment business firm as being client monies. I reiterate that the monies may only be held for the provision of Legal Services.

Solicitors’ Own Funds (Regulation 5)

Regulation 5 sets out in clear terms that you may not as a Solicitor place your monies in the Client’s Account. You must keep them separate at all times. There are rules in relation to fees for example which we will come due and there is a saver where you received monies in for the purchase of a property and pursuant to a Purchase Agreement or indeed a Loan Agreement.

As you are no doubt aware, where monies are in the Client Account to which the Solicitor becomes beneficially entitled then the Solicitor must remove same within three months of that date; that is of course subject to the regulations to follow in relation to your client’s authority.

Solicitor Employees

This is a significant change from the point of view of employees working who are Solicitor employees. Up until now Solicitors Accounts Regulations did not apply to employed Solicitors but from now on any Solicitor who is an employee and who in the course of his/her employment handles clients’ funds or non-controlled

trust monies or insolvent arrangement monies is subject to these obligations personally. This is an extension as you will appreciate of a substantial nature where employees are under the direction of their employers.

Where an employee of course did not handle monies or acted bona fide and can demonstrate same, it seems to this writer that you may have a bona fide defence, but it is quite clear under Regulation 3(2) that responsibility lies with the solicitor responsible for the breach and his/her employer.

Salaried Partner

The definition of a Partner for the purpose of the regulations is extended to salaried partners. The fact that a salaried partner while held out as a partner may in fact be an employee is no saver. The position remains the same under a Practical Partnership Law basis but from a regulatory point of view a salaried partner is fully liable as a partner in a practice.

Historical Balances (Regulation 5)

This is a new provision. Heretofore of course monies belonging to a client ought to be returned to the Client as a matter of course. The new provision provides that you must return the money to the Client within a period of six months after the completion of the provision of Legal Services in respect of the matter in question. As mentioned above this is aimed very clearly at forcing Solicitors to clear out Ledger Cards when the transactions are finished. As you will see afterwards the net effect of this is that initially you are going to have

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

Solicitors can no longer hold monies received by them as an authorised investment business firm as being client monies

Law Society HQ, Blackhall Place

to identify all of the historic balances. There are further provisions to follow in relation to reporting obligations of historic balances of over two years.

Client’s Authority To Withdraw Funds Regulation 7

(1)(2)(a)

From an inspection point of view and a day-to-day management point of view, this provision prohibits withdrawals in respect of any outlays disbursed by a Solicitor without the prior written agreement of his/her client. Though the Regulations go on to provide that a written notification of the client is a minimum requirement. It seems to me that where a Bill of Costs and Cash Account are sent to a client an email confirmation that they are in order ought to be sufficient.

Section 149 of the Legal Services Regulation Act

The Solicitors Accounts Regulations have brought into their body the provisions of Section 149 (2), and this is intended to reinforce the need for documentary evidence that the funds held in the Client Account are being applied to the Solicitor.

Round Sum Withdrawals Regulation 7

(2)(c)

Round sum withdrawals are prohibited under this regulation. Every sum withdrawn must be in respect of a specific notification to client as mentioned above, subject to client’s consent with the intent to stop Solicitors from withdrawing amounts of money from the Client Account without specifying the clients in respect of whom the fees are being withdrawn. This writer is not particularly surprised by this provision and indeed is surprised that there is a view that it is needed.

Deficits And Notice To Law Society Regulation

7 (2)(d) includes a prohibition of a deficit in the Client Account. Apparently, this is a new provision as this writer always thought that that was the situation.

There is a corollary obligation in Regulation 7(3)(a) to rectify a deficit and again this is something of a surprise one would have thought, as one would have thought this was the position anyway.

However, I would like to bring your specific attention to a new provision which is Regulation 7 (3)(b) which provides that you must now notify the Law Society within seven days of it coming to the attention of a Solicitor or within seven days within which it ought to reasonably come to the attention of a Solicitor that there is a deficit that the Solicitor cannot rectify.

At first blush you would say seven days is very tight, but I would think the point to make here is that you have to notify them within seven days of your being satisfied that it cannot be rectified. The above doesn’t apply if this arises as a result of a Bank error.

Records and Cash

There are throughout the regulations consequential amendments in relation to how we keep records. This arises in large part because of the manner in which monies are now being transferred e.g. via EFT. There is therefore an obligation on you to retain copies of each EFT whether the monies are coming in or going out because you may not have for example cheque books or lodgement books anymore and this replaces same and you are obligated as you might imagine generally under Regulation 13(1) to maintain at all times proper up to date Books of Account.

If you take money out which is being transferred from the Client Account to be used as cash you must have a client’s written authority and written records. Personally speaking, I think taking cash out of a Client Account is a bad idea at any time.

Authorised Signatories Regulation 9(5)

This area is being tightened up especially because we live in the time of electronic funds transfers and monies being transferred from desks. An authorised signatory therefore must be a Partner or a Sole Practitioner as a general rule.

A person who is not a Solicitor may act as a sole or authorised signatory only in exceptional circumstances and only with the prior approval of the Law Society. This is to maintain that Solicitors at all times are accountable.

The Two Year Rules Regulation 13

(8)(f)

This is a new regulation which has introduced an obligation on your Reporting Accountants to identify in their report any historic balances that are in excess of two years following effectively the completion of the legal work. The report must detail the reasons why the balances are there and must be signed off by the sole Practitioner/Principal or the Compliance Partner. The regulation talks about outstanding balances, but it seems to me that the logic of the position is that the transaction having closed, that two years after that you still are holding monies. This is part of an overall push to try to remove historic balances if possible. Having said that it is clear that there will be occasions when you are holding monies that you may not be able to pay out, but your obligation is to set out a reason in the report.

I am aware that the Solicitors Benevolent Association has made suggestions to the Law Society that such outstanding balances be paid to it on condition that there is a satisfactory indemnity in place so as to remove the ongoing reporting obligations in

relation to same. Apparently, a similar provision is in operation in the UK and would enable Solicitors to deal with small balances.

AML

The New Solicitors Accounts Regulations incorporate an obligation that you to have a record of the identity of the party providing money to a Solicitor for a transaction. Care has to be taken when monies are being transferred that you know where they are coming from.

Computer Backup

Regulation 27(2)(e) provides that you must maintain backups of accounting records on a computerised system and that they must be maintained securely other than at the Practice’s Office premises. One would have thought this is a sensible provision in any case but obviously it is intended to reinforce against risk of loss of data and the horrendous consequences of any practice where that was to occur without having a backup being in place.

Reporting Deadline

As you are aware your Accountant’s Report has to be filed within six months of the end of your accounting year. That period is now being reduced to five months from the end of your Tax Year. The only saver that has been added to that is that you can, within 14 days prior to the expiry date, request an extension for a further month. Given that many colleagues have had problems in the past in meeting this deadline for whatever reason, it seems to this writer that the shortening of that period is not in my view a welcome one.

Reporting Accountant

There are a number of substantial changes in relation to reporting Accountants and I am going to deal with these using numbered points:

1. You must report to the Law Society that you are changing your reporting Accountant within 14 days of the change.

2. Officers of a Limited Liability Company being your reporting Accountants can sign off on your reports.

3. No one who has a close relationship with you of a personal or business nature can be your reporting Accountant.

4. Reporting Accountants must comply with the relevant guidance issued by their relevant Professional Body.

5. There are provisions for the Law Society to be able to remove/disqualify reporting Accountants.

6. Where a reporting Accountant resigns, he or she must contact the Law Society within 21 days of such resignation giving reasons. The reporting forms are being changed to obligate the Partner or sole Principal/Practitioner to sign off on certain balances as mentioned above.

7. Reporting Accountants can make test checks and check postings that arise both before and after the balancing date.

8. The reporting Accountant is obliged to check that appropriate Bills of Cost and written agreement of Client to every transfer is available.

9. Reporting Accountants are obliged to report any suspicions they have about deficit funds or attempts at concealment to the Law Society and there is protection for reporting Accountants for so doing.

10. If you hold accreditation in Northern Ireland as well as in the Republic of Ireland, then you must also give your report to the Law Society in Northern Ireland.

11. No report is required where a Solicitor is working in the Law Centre.

12. There is also tightening up in relation to Practice closures whereby a closing report must be filed within three months.

Borrowing From Clients

Regulation 35(1) restricts a Solicitor from borrowing monies from a client unless the client is a Money Lender or a Bank and only where the client has been independently advised in relation to same and no monies held in the Client Account can be used for any loan mentioned above. Similarly, loan monies in the Client Account cannot be used for the provision of a loan from one client to another. They must be given to the client who is the lender, and that client must go off and deal with it separately and must have independent legal advice. There is a clear prohibition on Solicitors from lending monies to clients for purposes of obtaining instructions to act.

Registers

The Accounts now contain an obligation to maintain a Register of Undertakings identifying the client and undertaking completion.

Investigations

There is a tightening-up in relation to investigations and I will deal with these also by points:

1. The Law Society may conduct an investigation at somewhere other than your principal place of business as they see fit.

2. There is an obligation to make records available to an authorised person of the Law Society.

3. There is an obligation that a Solicitor or Partner should not delay, obstruct or impede an authorised person.

4. There is enabling provisions for applications to the High Court.

5. The investigations which heretofore applied under Section 68 are being extended to Sections 149 to 153 of said relevant legislation.

6. There are consequential changes in the ability of the Law Society to communicate if a suspected breach has occurred and an obligation on all Solicitors to attend meetings and there are consequences in failure to so attend.

7. Any delay in filing papers may result in Cost Orders being made a gainst Solicitors.

8. Under Regulation 40(1) the Law Society can require that you furnish a list of all Client and Office balances.

The above is intended to be a guide to the changes that have occurred. There is no substitution frankly for reading the regulations yourself and we will all learn as we go along as to the implications of the new regulations going forward. P

There is therefore an obligation on you to retain copies of each EFT whether the monies are coming in or going out because you may not have for example cheque books or lodgement books anymore

Important Injuries Board Update

The Personal Injuries Assessment Board (PIAB) recently notified the profession of significant changes pertaining to applications being made as and from the 4th September 2023. Practitioners should carefully note these upcoming changes and in particular, the requirement to have a medical report at the time of submitting the application

These changes are due to the implementation of new legislative requirements as set out in the Personal Injuries Resolution Board Act 2022 which was enacted in December 2022. The following is an abridged version of the note circulated to the Solicitor’s profession recently: The 3 key changes to be aware of are:

1. All PIAB application forms after the commencement of the legislation from the 4th September 2023 will require the claimant’s signature, even where the claimant is represented.

2. All applications to PIAB must be accompanied by a medical report prepared by a medical practitioner setting out the nature of the injuries allegedly sustained.

3. All applications will require more detailed descriptions in relation to when, where, and how the accident or incident causing the injury occurred. Once the relevant sections of the legislation are commenced, all of the above and the additional requirements detailed below will need to be provided to PIAB in order for an application to be complete under the legislation. A commencement order will come into effect from 4th September 2023. Additional changes will follow later in the year as mediation is expected to commence.

There will be new PIAB application forms in place from the commencement of the relevant sections of the legislation and the new forms will capture all of the data requirements. Once the relevant sections of the legislation have been commenced, all applications to PIAB will need to be made on the new version of the application form, and any old versions of the application form that are submitted to PIAB post commencement will not be accepted.

The following are the key requirements in relation to the application process:

• All applications will need to specify the full name, date of birth and contact number of the claimant. In cases where the claimant may not have a contact number, they can declare that they do not have a contact number.

• All applications will require the address at which the claimant ordinarily resides.

• All applications will require the Personal Public

Service Number (PPSN) of the claimant.

• In cases where a PPSN has never been issued to the claimant, other forms of ID will be accepted in place of a PPSN. Acceptable identity documentation will include a valid driving licence, a valid passport and a valid national identity card.

• All applications will require the name and address of the person or persons who the claimant alleges is liable in respect of the accident or incident (the respondent(s)). PIAB will accept the respondent insurer’s address in circumstances where appropriate.

• All applications will need to specify the date and time when the alleged accident or incident occurred. In cases where a date range is more appropriate due to the incident occurring over a period of time, a date range will be accepted and in these cases a time will not be applicable. Time ranges will also be provided for on the new application form.

• All applications will need to detail how and where the accident or incident occurred.

• All applications will need to provide a description of the personal injuries allegedly sustained detailing the body part(s) and nature of the injury or injuries (fracture, soft tissue, etc).

• Each application will need to be accompanied by a medical report, prepared by a medical practitioner which details the nature of the injuries allegedly sustained.

• All applications will need to be signed by the claimant and provide confirmation of all the above information. The claimant’s signature can be a digital signature or a scanned ‘wet’ signature. For electronic applications received via the online claim form or Solicitor Portal, an amended application process will facilitate this.

• In addition, a fee of €45 for online applications or €90 for postal applications is payable. Where an application does not provide the required information, it cannot be deemed complete for the purpose of applying to PIAB (Section 11 of the Personal Injuries Assessment Board Act 2003 (as amended)) or for the purpose of the Statute of Limitations pursuant to Section 50 of the Personal Injuries Assessment Board Act 2003 (as amended). P

All applications to PIAB will need to be made on the new version of the application form, and any old versions of the application form that are submitted to PIAB post commencement will not be accepted

Landmark Spectator Sports Liability Case

The Court of Appeal (COA) recently granted a consent order allowing the withdrawal of a case on sports spectator liability, even though a full appeal hearing had taken place. The plaintiff’s lawyers applied to withdraw the appeal just days before the COA was due to deliver its judgment. Craig Sowman assesses the importance of this case

Campbell v County Sligo Golf Club and Others

Whilst a spectator at the West of Ireland Golf Championship in 2016, the plaintiff was struck by a stray golf ball of a leading amateur golfer, Kevin Le Blanc. The plaintiff alleged Le Blanc hit an errant shot and should have vocally alerted nearby players and spectators by shouting “fore” to signal the impending ball. He instituted personal injuries proceedings against the Golf Club, as the organiser of the event; the Golfing Union of Ireland (as it was then), responsible for amateur golf administration; and Le Blanc.

In 2021, the High Court (Court) dismissed the plaintiff’s claim. It delivered a significant decision for sports clubs, tournament organisers and event spectators. The Court found that the plaintiff was not paying attention and was talking to friends. It found that the plaintiff was a recreational user “responsible to a huge extent, as matters played out, for his own safety”. The Court held that the duty of care owed to

spectators is to not act in “wanton disregard” for their safety. This decision on the duty of care was significant as it imposed a lesser standard than the duty to act with reasonable care.

The Court held that the standard of care owed to spectators is not absolute. It is based on what is reasonably expected from event organisers considering the circumstances, the sport in question, and the level of risk involved. Different sports may entail varying levels of inherent risk, and there is an obligation on organisers to assess and mitigate such risks accordingly.

The plaintiff appealed the decision to the COA. After a full hearing of the appeal, judgment was reserved. The COA was scheduled to deliver judgment in May 2023. However, following a settlement with the defendants, the plaintiff’s solicitors sought to withdraw the appeal just days before judgment was due. The plaintiff applied to the COA to refrain from delivering judgment and to instead strike out the proceedings with no order for costs.

Mr Justice Collins noted that a court may, in certain circumstances, give judgment despite being requested not to do so. Collins J referred to McDonagh v Sunday Newspapers, noting that as a matter of principle, a court is entitled to proceed to judgment, even if the appeal has been settled and the parties do not want judgment delivered. He also referenced the UK case, Jabbar v Aviva Insurance UK Ltd, where the court rejected the submission that “exceptional circumstances” (such as allegations of dishonesty and malice) had to be established before a court could give judgment after a settlement.

Collins J also relied on the English case Barclays Bank PLC v Nylon Capital LLP which held that although not determinative, the fact that all the parties were in agreement was particularly significant. The “strong public interest” in encouraging the consensual resolution of litigation, however belatedly, was a key consideration. Although the settlement was not conditional upon judgment not being handed down, Collins J commented that it might undermine

its status and value and deter other litigants from pursuing settlement, should judgment be delivered.

Balancing Exercise

The COA found that the principal focus of its judgment was fact-specific, rather than involving issues of law of any great novelty or significance. In those circumstances, and having regard to the parties’ agreed position, the potential stress of litigation on private parties, and the potential impact of a published judgment, the COA was satisfied not to deliver judgment. The COA held that these factors outweighed the public interest in publishing the judgment.

Conclusion

Where the COA did not deliver judgment, the Court’s decision remains an important precedent for golf and other participation sports (including sport clubs and event organisers) by confirming that recreational users remain responsible to a large extent for their own safety.

Craig Sowman is a partner at William Fry in the Sports & Entertainment Sector Group

Vacant Homes Tax Explained

The new tax will be levied at a rate three times the basic rate for local property tax (LPT) (that is the rate of LPT before the local authority adjustment is applied) applicable to the relevant residential property. The tax will apply to residential properties that are occupied for less than 30 days in a 12-month period. The due date for filing the initial VHT return is 7 November 2023 with the first payment of the tax due on 1 January 2024. The first chargeable period will be from 1 November 2022 to 31 October 2023.

Procedure

The liable person for LPT for a particular property will be the person who will be chargeable for VHT for that property. A property will only be liable for VHT if it is liable for LPT, thus if the property qualifies for any of the exemptions from LPT, it will not be liable for VHT. Owners will have to determine if their residential property was vacant for any period during the chargeable period. There are several steps that owners can follow to determine whether their property is deemed “vacant” under the new legislation:

1. Was the property liable for LPT for the relevant period?

2. If so, was the property “in use as a dwelling” for less than 30 days in the relevant period?

3. If the property was liable for LPT and was not “in use as a dwelling” for more than 30 days, is the

property eligible for an exemption from VHT?

4. If the property was liable for LPT and not “in use as a dwelling” for the relevant period, a VHT return must be submitted, and payment arrangements confirmed to Revenue.

If an owner determines that a property is subject to VHT, owners will be required to submit a VHT return on the VHT online service on a self-assessment basis. Further information in relation to the online service will be released by Revenue in the coming months. In addition to the above, owners may be asked by Revenue to confirm the status of their property. This will involve providing evidence that during the changeable period, a property has been:

• Occupied.

• Sold or advertised for sale.

• Subject to a qualifying tenancy or advertised for rent.

VHT Exemptions

There are a number of exemptions specific to VHT. Each exemption has its own qualifying conditions. VHT does not apply, even if a property was in use for less than 30 days in the chargeable period, in circumstances where the property was:

1. Sold in the chargeable period or actively marketed for sale on the open market at market value with no conditions attaching designed to delay or disrupt a sale.

2. Subject to a qualifying tenancy or the property was

The Vacant Homes Tax (VHT) was introduced in Budget 2022 as one of the latest measures taken by the Government to increase housing supply. Domhnaill Small examines the new tax and comments on the procedure, exemptions, and implications of non-compliance

actively marketed for rent at market rent with no conditions attaching designed to delay or disrupt the negotiation of a tenancy.

3. The death occurred of the owner of the property in the chargeable period who occupied the property as their main residence prior to death and/or where a grant of representation issued in the estate of the former owner in the chargeable period.

4. The occupation or sale of the property was prohibited by a court order during the chargeable period.

5. The property was in use as a dwelling for less than 30 days during the chargeable period due to a physical or mental infirmity suffered by the owner and the infirmity in question has been certified by a medical practitioner.

6. The property underwent structural works for a period of over six months during the chargeable period without any undue delay and:

a. a registered professional certifies that the occupation of the property during such works would have posed an actual threat to occupants and, where required, planning permission was obtained before the commencement of such works;

b. the cost of the works exceeds an amount equal to one fifth of the property’s market value prior to the commencement of the works.

In order to prove that a dwelling was not liable for the VHT in any particular period, an owner may be required to produce evidence such as a utility bill, evidence of a short-term letting if the property was tenanted, or a statutory declaration confirming the property was “in use as a dwelling” for more than 30 days in the relevant period.

Penalties for Non-Compliance

Penalties for failure to comply with VHT obligations will include surcharges, penalties, and interest on late payments. Surcharges will apply in cases where an incorrect VHT return has been submitted. In the case of late submissions, interest will be applied for every day the VHT return is outstanding. The interest rate is 0.0219% per day, equalling 8% per annum. Owners may also be subject to a penalty for failing to submit a VHT return on time. It should be noted that, unlike LPT, there is no provision for making unpaid VHT a charge on a property.

Conclusion

The VHT is a new measure that will entail further obligations for owners of residential property. The list of exemptions included as part of the legislation is welcome and should hopefully ensure that owners are not unduly found liable in circumstances where a property is reasonably vacant.

Domhnaill Small is a partner in the commercial real estate team at Beauchamps

It should be noted that, unlike LPT, there is no provision for making unpaid VHT a charge on a property

New State Litigation Principles

On 21st June 2023 the Attorney General published a new set of principles that are intended to guide State parties when engaged in legal disputes and litigation. Rosaleen Byrne and Catherine Derrig scrutinise the new State principles which are intended to ensure that the State conducts its litigation as a “model litigant” and to be a positive example to other parties to do likewise

Newly published State Litigation Principles require that State parties should act in the public interest when pursuing litigation and should consider the broader public interest before taking certain procedural steps in litigation. In launching the Principles, the Attorney General said that he hoped that they would also serve as a positive example to other litigants. Although the Principles do not themselves indicate the State entities to which they apply, the press release announcing the publication of the Principles mentions that the Principles apply where the State, through the Government, a minister, a Government Department or an agency under the direct control of a minister, engages in litigation.

The Litigation Principles

The new Litigation Principles are:

1. Avoid legal proceedings where possible; While the State may institute proceedings, it is more frequently the defendant or respondent in proceedings. Nonetheless, the State will endeavour to avoid, prevent and limit the scope of legal proceedings wherever possible, including by giving consideration in all cases to alternative dispute resolution before initiating legal proceedings (in line with the Mediation Act 2017) and, in other cases, by participating in alternative dispute resolution processes where appropriate.

2. Deal with claims promptly; In order to facilitate the proper administration of justice, the State will seek to avoid any unnecessary delay in the management of claims and litigation. Where possible, the State will take a pragmatic approach to procedural applications and use all reasonable endeavours to ensure that timelines imposed by legislation, rules of court, court orders or court directions are complied with.

3. Deal with litigation efficiently; The State will endeavour to conduct litigation efficiently, with an emphasis on narrowing the issues that truly are in controversy between the parties, and not requiring unnecessary proofs or evidence. Also, the State will support case management procedures that assist with the efficient progress of litigation.

4. Identify lead cases when multiple sets of proceedings on same legal issue; When defending mass claims or multiple sets of legal proceedings on the same or similar questions, the State will endeavour to assist the court and litigants by identifying appropriate lead cases with a view to facilitating the efficient and effective administration of justice.

5. Minimise legal costs for all parties; The State will seek to reduce the legal costs incurred by all parties to litigation by streamlining processes, narrowing the issues in proceedings and settling proceedings at an early stage where appropriate.

6. Make settlement offers, tenders or lodgments; Where appropriate, the State will encourage the settlement or compromise of proceedings by the making of settlement offers, tenders or lodgments.

7. Act honestly;

The State will act honestly and will seek to assist the court by providing full and accurate explanations of all relevant matters of which the court requires to be aware, on affidavit, in witness statements, and in oral evidence as appropriate, depending on the nature of the proceedings.

8. Make discovery in compliance with best practice; Once ordered by a court, or once agreed by the parties, the State will seek to comply with best practice in how it makes and manages discovery.

9. Be consistent across claims; With due regard for differences between individual cases, or classes of cases, the State shall endeavour

to be consistent in how similar proceedings are managed and settled.

10. Not to take advantage of the less well-resourced litigant; The State is to be conscious of the difficulties faced by under-resourced and lay litigants and will endeavour to assist the court to manage these types of cases as fairly and expeditiously as possible.

11. Defend proceedings in accordance with the interests of justice;

The State is entitled to rely on the same defences as any other litigant, but where consideration of different defences arises, the State will consider where the interests of justice lie for all parties, before relying on the relevant defence.

12. Not to appeal unless there is a reasonable prospect of success or in the public interest;

The State should not ordinarily appeal against adverse decisions unless there are valid legal or policy reasons for doing so.

The State may appeal where it is considered that:

(a) the appeal has a reasonable prospect of success,

(b) clarification of the law or legal certainty is required,

(c) the appeal is supported by valid legal or policy reasons, or

(d) the appeal is other wise in the public interest.

13. Avoid bringing proceedings against another State Department or State body; Where legal issues arise between public bodies, the State will, where possible, endeavour to resolve such disputes without recourse to litigation. However, this may not apply where the State has a right of appeal under statute against a decision of an independent agency or authority.

14. Seek to agree claimant’s costs without the requirement for formal adjudication;

Where a litigant has obtained a costs order against

the State (that is not stayed pending an appeal or pending the conclusion of the proceedings), or the State has agreed as part of a settlement to discharge a claimant’s costs, the State will seek to engage constructively on the issue with a view to consensually agreeing the legal costs, without the requirement for the costs to be formally adjudicated.

15. Apologise where the State has acted unlawfully; The State should apologise in appropriate cases and, in particular, where the court has found that the State has acted unlawfully, or, prior to any such judicial finding, it has emerged in the course of litigation that the State has acted unlawfully.

Set in a Wider Context

Some of the principles (such as acting honestly and in the interests of justice) express obligations that are in any event among the ethical and professional standards of lawyers, and another (a State body not generally litigating against another State body) reiterates an existing requirement of the Code of Practice for the Governance of State Bodies Enforcement?

The Principles state that they do not have any binding legal effect. Indeed, the Principles themselves emphasise that a failure to comply with them cannot in itself defeat a claim or defence advanced by the State in any set of legal proceedings. To that extent, the Principles are guidance, not law. Nonetheless, the Principles are an important statement of some new and important principles for the conduct of litigation by State bodies and are a welcome reiteration of some other important professional and ethical obligations of every lawyer.

The Principles are an important statement of some new and important principles for the conduct of litigation by State bodies and are a welcome reiteration of some other important professional and ethical obligations of every lawyer

Rosaleen Byrne and Catherine Derrig are Partners at McCann Fitzgerald

DSBA –Our Benefits

The Dublin Solicitors Bar Association (“DSBA”) is the largest bar association in Ireland, having been established in 1935. It is a representational and not a regulatory organisation, existing to promote the welfare and interests of its members who are solicitors. The DSBA aims to promote a vibrant and up-to-date

profession and collegiality amongst solicitors. The DSBA offers the following benefits to members:

DSBA CPD Events – Preferential rates for members for top quality CPD [Continuing Professional Development] events held all year round. The DSBA is committed to providing a series of

conferences and seminars in the next 12 months to meet the ongoing educational and information needs of its members.

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

DSBA Parchment Magazine – Our award-winning quarterly magazine which will keep you up to date with the profession and practice.

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

DSBA Social Events – Events for solicitors throughout the year and our notto-be-missed annual conference.

DSBA Submissions – Our committees and council work hard to represent solicitors and their interests; there is a current DSBA taskforce on the Legal Services Regulation Act.

The Consult a Colleague Helpline is available to confidentially 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.

DSBA Younger Members’ Committee represents the interests, both professionally and socially, of the younger and most recently qualified members of our profession, from newly qualified up to five years PQE. The Younger Members’ Committee of the DSBA organises low-cost CPD events, lectures and other events for young solicitors.

DSBA Management Tools such as – CORT – Computerised Objections and Requisitions on Title.

DSBA Website – www.dsba.ie. See our regularly updated website for information on all of the above.

For renewal and new membership please complete the form (right) in full and return it together with a cheque/bank draft/ postal order for the appropriate fee to Maura Smith, DSBA, Unit 206, The Capel Building, Mary’s Abbey, Dublin 7; DX 200206 Capel Building or call 01 6706089 to pay by credit/debit card.

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Enclosed please find *cheque/bank draft/postal order for € for * new membership/renewal

A New Era for the State Pension System

Last September, the Minister

The measures, which were initially recommended by the Irish Pensions Commission, include, amongst others, the introduction of a flexible State Pension age and the planned introduction of measures that will allow an employee to stay in employment until the State Pension age.

The need for the changes to the State Pension system were highlighted by the Pension Commission’s Report which highlighted that the current system is not sustainable into the future. The Pension Commission therefore set out a suite of recommendations to be considered by the Government. The approval by the Cabinet of some of these measures heralds a new era for the State Pensions system. A review of the key measures announced is carried out below:

Flexible State Pension Age

Changes to the State Pension age in Ireland have been fraught with controversy over recent years. The last change to the State Pension age took effect on 1 January 2014, whereby the State Pension age was increased from 65 to 66. The State Pension age was then set to be further increased from 66 to 67 in 2021 and 68 in 2028. However, due to the public backlash expressed during the 2020 General Election, the Government deferred such increases and instead established the Pension Commission to consider the sustainability of the State Pension system.

The Government has now announced that, with effect from January 2024, people will have the option to continue working up until the age of 70 in return for a higher State Pension. Minister Humphreys stated that this flexible approach is an acknowledgment that a ‘one size fits all’ approach is not suitable since “everybody’s job and circumstances are different”. She contended that these measures aim to give people more choice as to when they will retire and to put the “power in people’s hand”.

The flexible approach will operate by allowing people to continue to draw their State Pension at the a ge of 66, however it will introduce the ability for people to continue working beyond the age of 66 until 70, and in return to receive a higher pension payment. Under the proposed flexible model, and based on current payment rates, the five weekly payment rates are as follows:

• Age 66 – €253 (current weekly rate)

• Age 67 – €266

• Age 68 – €281

• Age 69 – €297

• Age 70 – €315

This translates to a combined increase in the State Pension of 24% if a person was to remain in employment until age 70.

Introduction of New Measures

Although Minister Humphreys has so far provided limited detail on what ‘measures’ are likely to be introduced, the recommendations of the Pensions Commission may be indicative of what may be coming down the line. The Pensions Commission recommended aligning retirement ages in employment contracts with State Pension age, by introducing legislation which will allow an employee to stay in employment until State Pension age. The proposed objectives of this legislation would be that an employer would not be permitted to set a mandatory retirement age below the State Pension a ge and such legislation would also apply to existing employment contracts overriding any provision which sets a mandatory retirement age below the State Pension age.

Employers to Watch Out

It is important for employers to stay alert to potential changes to employees’ rights when it comes to retirement. Employers will need to prepare and assess the potential effects on their business.

As it currently stands, mandatory retirement a ges are generally provided in either employment contracts, company policies and/or by way of custom and practice. To date, employers are permitted to fix a mandatory retirement age where it is objectively and reasonably justified by a legitimate aim and the means of achieving that aim are appropriate and necessary (as per Section 34(4) of the Employment Equality Acts 1998 – 2015). However, Minister Humphreys’ announcement implies that this position is about to change and employers may soon be prohibited from setting mandatory retirement ages below the State Pension age.

While no draft legislation has yet been proposed, employers should be alert to these potential changes which are proposed to be introduced in January 2024.

for Social Protection, Heather Humphreys, announced what she described as the “biggest ever str uctural reform of the Irish State Pension System”. Lorna Osborne and Caoimhe Hickey assess the new pension landscape

Pensions

Lorna Osborne is a partner at Addleshaw Goddard Caoimhe Hickey is an associate at Addleshaw Goddard

County Registrar Powers Under Scrutiny

Hilda Mannix considers a recent High Court decision of Ms Justice Hyland in Permanent TSB plc v Matthew Farrelly [2023] IEHC 255 which she says has clarified the limited jurisdiction of the County Registrar to dismiss repossession proceedings for want of prosecution

Background

The decision was delivered in the context of an appeal brought by the Defendant against the decision of Judge Linnane in the Dublin Circuit Court on 20 November 2020 whereby she made Orders as follows:

1. setting aside the decision of the Dublin County Registrar on 25 October 2019 to dismiss the underlying repossession proceedings for failure to comply with previous Orders made by the County Registrar; and

2. reconstituting the proceedings so that Start Mortgages Designated Activity Company (“Start”) (having acquired the underlying security and loan) was substituted as Plaintiff.

That motion to set aside was brought by Start and the Defendant brought the appeal in respect of Judge Linnane’s Order dated 20 November 2020 to the High Court, but incorrectly identified Permanent TSB (“PTSB”) as Plaintiff, when in fact it had no part in the appeal.

The specific terms of the Order made by the County Registrar on 25 October 2019 were crucial in the context of Hyland J’s decision and were as follows:

“That the plaintiff’s civil bill hearing be and the same is hereby dismissed for want of prosecution for failure to comply with the previous court orders. The issue in this case arises with the Plaintiff (sic) compliance with the CCMA and its failure to provide all information to the Defendant.”

In addition to a claim for objective bias as against Judge Linnane in how the motion to set aside was heard before her, the Defendant also relied on Order 18(1)(vi) of the Circuit Court Rules (the “CCR”)

which provides that a County Registrar may make an Order to dismiss an action with costs for want of prosecution. In contrast, Start argued that the County Registrar’s powers in the context of repossession proceedings can only be found in Order 5B of the CCR, which order covers actions for possession and well charging reliefs and specifically pointed to Order 5B (7), which grants no additional powers to the County Registrar to strike out proceedings or dismiss proceedings.

Decision

A number of interesting points were addressed by Ms Justice Hyland in her decision to set aside the Order of the County Registrar and to remit the substantive proceedings back to the Circuit Court for hearing. These are summarised below:

• Section 37 of the Courts of Justice Act, 1936 provides that when the High Court is hearing an appeal against a decision of the Circuit Court, it is acting de novo or, in the context of this appeal, that it carries out an entirely fresh review of the decision of the County Registrar and not that of the Circuit Court. This appeal was not a judicial review of the decision of Judge Linnane and therefore Hyland J found that it was not appropriate to consider the allegation of objective bias made by the Defendant. Further, the appeal was a fresh review of the decision of the County Registrar and in the circumstances, it was not affected by either the outcome of, or the nature of, the Circuit Court hearing before Judge Linnane.

• Jurisdiction of the County Registrar – the Circuit Court is a Court of limited jurisdiction and does not enjoy any inherent jurisdiction. This is still less so in the case of the County Registrar. Hyland J found that there is no conflict between Order 18(1)(vi) and Order 5B(7) of the CCR such that the County Registrar has no discretion to dismiss for want of prosecution. On the basis of the decision of Clarke J in Tracey McDowell & Ors [2016] IESC 44 (the “Tracey decision”) (discussed in further detail below), Hyland J found in principle that the County Registrar enjoys a jurisdiction in an appropriate case to dismiss for want of prosecution, including repossession proceedings governed by Order 5B.

• Hyland J placed particular emphasis in her findings on the Tracey decision, in circumstances where it dealt specifically with dismissal for failure to comply with Court Orders. In particular, Clarke J in that case distinguished between the want of prosecution jurisdiction (the dismissal of proceedings based on a general failure of a party to progress proceedings in a timely manner) and the consequences which it may be appropriate to apply on the basis of a specific failure of a party to comply with the direction or Order of the Court. Hyland J in the instant case was of the view that in the context of the latter, Clarke J had in mind the failure on the part of a litigant to take a procedural step that has been expressly directed by the Court.

•

No failure to respond to Court directions

– Hyland J held that there was no failure by the Plaintiff to comply with Court directions and there was no want of prosecution in this case, rather the County Registrar was not satisfied with the substance of the affidavit which was filed by the Plaintiff following her Orders made on 31 January 2019 and 31 July 2019 requiring material to be provided by the Plaintiff on affidavit to the Court in respect of certain information. Importantly, no details of the precise nature of those Orders were before the High Court as they were absent from the transcripts of the DAR of those hearings. Further, the County Registrar failed to identify with particularity in her Order dated 25 October 2019 the date, nature and precise terms of the Order(s) which were purportedly breached, and the specific failure of the party bound by the Order(s). Rather, her Order dated 25 October 2019 simply made reference to “previous court orders” and then moved on to the substantive aspects of noncompliance with the CCMA, which moved beyond the realm of a procedural issue. Hyland J held that this went beyond the jurisdiction of the County Registrar under Order 18(1)(vi) to dismiss for want of prosecution, which involves a court considering whether a party is guilty of inordinate and inexcusable delay and whether the balance of justice favours dismissal. The terms of the Order dated 25 October 2019 demonstrated that the matter was dismissed because the County Registrar was not satisfied that the Plaintiff’s affidavit contained the material that she considered it ought to contain.

• Dismissal vs. strike out – Hyland J found that even if the County Registrar did have jurisdiction to dismiss the proceedings in the instant case, she

did not lawfully dismiss them. In particular, Hyland J outlined the difference between a dismissal of proceedings (where the Court follows a substantive engagement and adjudication on the merits of a case, meaning they are at an end and cannot be brought again) and a strike out (where proceedings could potentially be issued again, subject to any statute issue). In the event of a dismissal in the instant case, the Plaintiff would be enormously prejudiced in circumstances where the amount due and owing pursuant to the mortgage the subject of the proceedings was in excess of €580,000, the Defendant would have no obligation to repay the loan and interest accumulated on same and his house would effectively be mortgage-free. Even if there was a procedural failure (which the Court held there wasn’t given that the Plaintiff did file the affidavit), the Tracey decision established that the Court would have to consider whether the dismissal of the proceedings (rather than some lesser measure) was appropriate and whether it was proportionate to the procedural failure.

Comment

The decision provides clarity for practitioners and plaintiffs in repossession suits regarding the interaction between the powers conferred on the County Registrar pursuant to Order 5B and Order 18(1)(vi) of the CCR. Further, it provides reassurance for plaintiffs regarding the very specific criteria which need to be considered by the Court when determining whether an action should be dismissed for failure to comply with Court directions, particularly where that failure to comply may have been through no intended fault of the plaintiff.

Hilda Mannix is a senior associate at RDJ Solicitors Stephen Maloney, intern at RDJ Solicitors, also contributed to the article

Hyland J found in principle that the County Registrar enjoys a jurisdiction in an appropriate case to dismiss for want of prosecution, including repossession proceedings governed by Order 5B

Personal Injuries Summons Renewal Update

In the recent High Court judgment in Murphy v. Depuy Ireland [2023] IEHC 220, Mr Justice Barr offered an insightful decision in relation to the principles governing the renewal of a Personal Injuries Summons, while acknowledging the nuanced and novel caselaw arising from applications under Order 8, Rule 1(4) of the RSC, write

Stephen McGuinness and Kevin Kelly

This claim arose as one of many that were instituted by employees of the defendant company who alleged they were required to adopt awkward postures for prolonged periods of time exposing their bodies to vibrations and mechanical stress resulting in physical injuries.

This particular matter was instituted by way of a Personal Injuries Summons issued on 7 May 2021 but which was not served upon the defendant within the one-year time limit. On 17 May 2022, ten days after the Personal Injuries Summons expired, the plaintiff filed an ex parte docket and grounding affidavit seeking to renew the Personal Injuries Summons. Hanna J granted the renewal on 23 May 2022 and the Personal Injuries Summons was served on 9 June 2022.

The defendant entered an appearance on 20 July 2022 which on its face stated that they were doing so ‘without prejudice to any application that may be brought to set aside the renewal of the summons’. The defendant then issued a Notice of Motion on 25 July 2022 seeking to set the renewal aside.

In the plaintiff’s replying affidavit to the defendant’s Notice of Motion, they indicated that there were approximately 37 similar claims being pursued as against the defendant, such that they ought to have been familiar with the type and nature of the claim prior to the service of the proceedings and they also averred that there was only a lapse of 10 days in effecting proper service as the plaintiff acted expeditiously once the Personal Injuries Summons had lapsed. The plaintiff’s solicitor also averred that the nature of this claim would necessitate an expert report from an engineer and/or ergonomist which were not to hand at the time the Summons was issued.

The defendant questioned the relevance of the plaintiff relying on their lack of expert reports as to delay service in circumstances where the Personal Injuries Summons has already been issued. The defendant also queried the relevance of the defendant’s familiarity with similar claims and contended that service is still required within the time limits provided for in the rules.

The defendant in this case argued that prejudice would naturally accrue if the renewal was made in light of the alleged injury incurring over a long period of time.

Submissions Against Renewal

The defendant submitted that the special circumstances test was not met, based on six main arguments:

1. The plaintiff could not rely on the lack of expert reports in their possession as a special circumstance to justify non-service of the preissued Summons on the defendant.

2. The fact that the plaintiff was engaged in a multiplicity of actions against the defendant did not obviate their obligation under O. 8 to serve the summons within 12 months. It was submitted that each case must rest on its own facts, relying on the decision in Ward v. Harmony Row [2021] IEHC 656.

3. The COVID-19 pandemic could not be relied on by the plaintiff where service was readily possible,

due to the adaptations of the legal world from May 2020 onwards. Counsel submitted that after May 2020, the pandemic was not a fact ‘beyond the ordinary and usual’, which meant that it could not be considered a special circumstance. In that regard, counsel relied on the decision of Hyland J in Brady v. Byrne [2021] IEHC 778.

4. In circumstances where the defendant emailed the plaintiff prior to the expiry of the Personal Injuries Summons to accept service, that the failure to then effect service amounted to inadvertence which caselaw clearly defines as not amounting to special circumstances.

5. Although the plaintiff may argue that the cumulative effect of all these matters was sufficient to constitute special circumstances justifying renewal of the summons, it was submitted that the cumulative effect was only the sum of its parts, and those parts did not stand up to individual scrutiny. The defendant submitted that if none of the points could constitute a special circumstance justifying renewal on their own, their cumulative effect could

The defendant in this case argued that prejudice would naturally accrue if the renewal was made in light of the alleged injury incurring over a long period of time

Stephen McGuinness is a partner at Hayes Solicitors in the Healthcare Team. Kevin Kelly is legal executive at Hayes Solicitors

not justify renewal either, by way of effectively arguing that if the parts of the argument were weak individually, the cumulative effect argument fell away.

6. The defendant would be prevented from raising the Statute of Limitations in its defence if the plaintiff was successful in having its summons renewed. Counsel submitted that the Statute must be available for both sides in the litigation to plead, relying on the judgment of Faherty J in Chandler v. Minister for Defence [2022] IECA 132 in that regard.

Submissions in Favour of Renewal

The plaintiff’s key arguments in order to uphold the renewal were fivefold:

1. The critical factor in this case was the mere 10 days between the lapse of the time limit for service of the summons within time, and the filing of the ex parte docket seeking its renewal. The plaintiff argued that that time must be considered de minimis, and the averments in the affidavits of the

plaintiff’s solicitor should be considered in that light.

2. The decision of Brereton v National Maternity Hospital [2020] IEHC 172 where Hyland J observed a distinction between extreme delay and moderate delay, indicating that much shorter periods of delay are treated differently in these applications, favouring renewal rather than refusal.

3. The defendant had failed to adduce sufficient evidence of any actual prejudice arising from the renewal.

4. The plaintiff conceded that, generally, factors such as the internal file allocations, sick leave and maternity leave would not amount to special circumstances in cases of extreme delay prior to renewal, but where the renewal was made 10 days after the expiration then it was sufficient to establish special circumstances.

5. In relation to the cumulative effect of the circumstances, it was submitted that there appeared to be some divergence in the approaches taken by the Court of Appeal. It was submitted that

Haughton J in Murphy v HSE [2020] IECA 3 had indicated that the balance of justice should be considered with the special circumstances, considering all such matters as a whole, in reaching a decision. It was submitted that Noonan J in the case of Nolan v. Board of Management of St. Mary’s Diocesan School [2022] IECA 10 suggested that there must exist some special circumstances to justify renewal, before the court embarks on an analysis of the balance of justice. The plaintiff submitted that the approach of Haughton J ought to be preferred in considering the special circumstances and the balance of justice, cumulatively, as one analysis to arrive at a decision, especially in this case where the very short period of delay was justified and weighed the balance of justice in favour of a renewal.

Application of Special Circumstances Test

In its conclusion where it upheld the renewal, the High Court held the following:

1. The de minimis delay must be considered in these applications, based on the decision of Brereton in which Hyland J distinguished moderate delay and extreme delay. In Brereton, the court held that a 10-week delay was short in the context of a 12-month period to serve the Summons, therefore 10 days is to be considered de minimis

2. The correct approach to be taken when analysing the special circumstances is to consider the special circumstances in light of the balance of justice between the parties, as one point of analysis, as rehearsed by Haughton J in Murphy

3. Absences resulting from sick leave can amount to special circumstances in circumstances where 133 staff days were lost in the plaintiff’s solicitor’s firm due to illness between 1 May 2021 and 31 December 2021. However, the court did note that retirement leave and maternity leave are foreseeable but that ultimately, in conjunction with absences due to COVID-19 and other illnesses, the absences combined constituted special circumstances.

4. The failure to serve the Summons in this instance was not mere inadvertence on the part of the solicitor, it was inadvertence as a result of a storm of factors which occurred both within the firm and in the country at large at that time and the court is entitled to excuse inadvertence that resulted from such factors. Barr J did reiterate that inadvertence alone will not amount to special circumstances, but there may be reasons which excuse inadvertence, thereby rendering it a special circumstance.

5. Due regard is to be given to how quickly one acts in seeking to renew the Summons as per Hyland J in Brereton

6. The defendant was on clear notice of the claim from November 2020 on foot of a PIAB authorisation which would have been sent to them and the defendant was informed of the proceedings when the plaintiff’s solicitor emailed them to inquire if they had authority to accept proceedings. Therefore, the defendant knew the proceedings were in being and did not suffer any prejudice arising from the late service.

7. The High Court held that in circumstances where 37 other similar claims were instituted as against the defendant, which does not in itself relieve the plaintiff of their obligation to serve the Summons on time, that ultimately the defendant was on clear notice of at least the broad nature of the claim being made against it, in conjunction with the emails which were sent as well.

8. The 10-day delay does not appear to cause any prejudice to the defendant and the defendant failed to point to any specific prejudice due to the 10-day delay. The High Court was satisfied that the defendant’s argument that it would be in a much stronger position to plead the Statute of Limitations were the Summons not renewed was a factor which ought to favour renewal as the plaintiff would suffer enormous hardship if her Summons was not renewed, as it would then become statute-barred.

9. The High Court held that although the circumstances in this case would not amount to special circumstances justifying a much longer period of delay in another action, they were sufficient to justify a renewal wherein the delay was merely 10 days and where the defendant will suffer no material prejudice in its defence of the claim.

10. The High Court stated that its conclusion was based upon the cumulative effect of the plaintiff’s solicitors’ operational issues, the absence of any prejudice on the part of the defendant and the short delay in seeking a renewal.

The High Court decision is of note as it elaborates and draws on pre-existing principles in order to illustrate what amounts to special circumstances. Of note, it appears that a defendant will not be able to establish prejudice simply by way of arguing the Statute of Limitations; it would appear that ‘specific prejudice’ or actual prejudice is necessary in order to resist a renewal. The natural accrual argument as advanced by the defendant, in light of the égalité des armes which is brought about through the Statute of Limitations, appears to have not been accepted by the Court, and actual prejudice is now the requirement. It would also appear that the court will give regard to the delay in seeking to renew a Summons which indicates that the failure to serve the Summons within the 12-month period is not assessed within the 12 months but extends until the point of renewal. The judgment provides some helpful clarification on the circumstances surrounding the renewal of a Personal Injuries Summons. It remains that the key question to ask when assessing a renewed summons is whether there are in fact “special circumstances” which justify the renewal? In this judgment the High Court upheld the renewal on the basis that there were special circumstances to justify the renewal. However, due regard is to be given to the facts of this case, where inter partes correspondence was engaged with on both sides as establishing notice and the PIAB authorisation gave rise to a reasonable apprehension of proceedings.

Of note, it appears that a defendant will not be able to establish prejudice simply by way of arguing the Statute of Limitations; it would appear that ‘specific prejudice’ or actual prejudice is necessary in order to resist a renewal

Maximum Compensation at WRC

A recent sexual harassment decision (O’Brien v Deadline Direct Ltd t/a Deadline Couriers - ADJ-00036160O), where the complainant was awarded the maximum compensation amount of two years’ remuneration, serves as a cautionary reminder for employers to take action to prevent harassment and discrimination in the workplace. It further highlights the importance of investigating such allegations and concluding the process, even where the alleged perpetrator resigns. Geraldine Carr and Denise Moran consider the key learnings and takeaways for employers

What Happened?

The complainant reported an incident of sexual harassment whereby a male colleague attempted to pull down her trousers opposite several other male colleagues while her hands were occupied. She reported the incident and was advised that it would be fully investigated. The complainant was not called to provide her account of the incident until over a month after it occurred, despite written assurances that the investigation would have been completed two weeks previously and despite there being CCTV evidence of the incident (which should have assisted a prompt investigation).

A number of weeks after the investigation meeting between the appointed investigator and the complainant, she was advised that the alleged perpetrator had resigned. An outcome of the investigation was never provided and she brought a claim under the Employment Equality Acts 1998 –2021 (EEA).

What did the WRC find?

The Adjudication Officer (AO) found that the complainant established a prima facie case of discrimination. The AO then turned to determine if the respondent could avail of the defence under the EEA which provides that if a respondent employer can prove that it took such steps that are “reasonably

practicable” to prevent the harassment or sexual harassment from occurring or to reverse its effect, then it will not be found guilty of discrimination for the harassment or sexual harassment perpetrated by its employee.

The respondent sought to rely on the Employee Handbook which identified sexual harassment as an offence to be handled pursuant to the internal grievance procedure. The complainant asserted that she never received this Handbook and the AO found that, in the absence of any supporting written acknowledgment or any other evidence that she was provided with a copy, it could not be satisfied that she had received it. The AO further noted that there was no evidence of a distinct policy dealing with sexual harassment complaints which, the AO asserted, should be handled differently than standard grievances because of the sensitivities involved.

The AO also pointed to the absence of sexual harassment training. Although the AO acknowledged that the respondent had issued a Dignity at Work policy to all employees after the incident, it noted that it would be of limited benefit to the complainant who was unlikely to return to work in the short or medium term. Although the policy would assist in ensuring that employees would not be subjected to such behaviour in the future, this policy could not be relied upon as a preventative measure.

The AO then turned to examine the respondent’s actions after the harassment was reported and found that the complainant had engaged in the investigation process (in the absence of any direct evidence to the contrary from the investigator who was not present at the WRC hearing) and that no investigation outcome was ever issued. The AO found that there was no justification for not producing an investigation report, even where the alleged perpetrator had resigned, and that in the absence of such a report, the “investigation did not mitigate in any way the absence of any of the respondent’s protective and preventative measures”

The AO, in finding there was a failure to implement any protective or preventative measures prior to the sexual harassment and wholly inadequate measures after the incident, made an award of €50,440, an amount equivalent to two years’ remuneration.

Key points for Employers from this Case

• Ensure that employees are provided with an Employee Handbook that contains all of the relevant and necessary policies and procedures, including but not limited to a bullying and harassment (including sexual harassment) policy, a grievance policy and a disciplinary policy. The Employee Handbook should be provided as part of the on-boarding process and a record retained of the employee’s receipt of the Handbook. Employees

should be reminded of the employer’s policies and procedures on an annual basis or where any changes or updates are made to them.

• Conduct a regular review of employment policies and procedures to ensure that they are up to date and fit for purpose.

• Ensure that regular and thorough training is provided to employees. This will assist an organisation in relying on the defence that it took reasonably practicable steps to prevent any harassment taking place.

• Where an investigation is ongoing and the alleged perpetrator resigns, the investigation must still be concluded and the outcome of the investigation report must be issued.

• In this case, the complainant disputed that mediation was offered but it is worth noting that the AO viewed mediation as a “bizarre suggestion” where such a serious allegation of sexual harassment was made. Consideration should, therefore, always be given to whether the offer of mediation is appropriate in the circumstances.

• Ensure that company policies are appropriately tailored to Irish law. In this case, the grievance policy referenced the UK Advisory, Conciliation and Arbitration Services which the AO appears to have taken a dim view of.

Geraldine Carr is a partner and Denise Moran is a senior associate at Matheson LLP

Where an investigation is ongoing and the alleged perpetrator resigns, the investigation must still be concluded and the outcome of the investigation report must be issued

Ruling Family Law Terms of Settlement

DSBA President Susan Martin reviews the position and proofs when parties agree consent terms in matrimonial matters

Practitioners may find, during the course of matrimonial proceedings, that agreement can be reached and terms of settlement entered into. It is best practice that these agreed terms of settlement are reduced to writing and signed by both parties and witnessed by their solicitors.

Once this has been attended to, what are the steps necessary in order to achieve a Judicial Separation or Divorce without the necessity of a hearing or going through case progression or the list to fix dates?

While the decision of the Court is final regardless of what terms that the parties agree, on many occasions it is possible for litigants, with the assistance of their family law practitioners, to arrive at excellent draft Orders which are clear and can be implemented.

The Circuit Court Rules provide the procedure required in order to rule Terms of Settlement in matrimonial matters. These are set out at the Circuit Court Rules – Order 59, Rule 35 – Motion for Order in agreed terms. In addition to setting out the requirements under the rules, I have also included a number of other practices and observations which may be helpful.

Once the terms have been agreed, reduced to writing and engrossed, they should be signed by both parties (and witnessed by their solicitors) in triplicate. One copy is given to the Applicant, one to the Respondent and one copy is lodged into court (see below).

There are a number of essential proofs that are required in order to rule terms successfully and

efficiently and various elements to be considered in advance of the issue of the Motion and then the hearing.

Preliminary Matters

The Affidavit of Means

Prior to the issue of the motion, a sworn and filed affidavit of means is required for each of the parties, dated within the past six months.

The Pensions

If either or both parties have a pension, it is necessary that a Notice to Trustees, if not already served by the date of settlement, be served fourteen clear days prior to the date of the hearing of the Motion to rule terms. This Notice ought to be served on the opposing party and on the trustees of the pension. This is regardless of whether relief is being claimed by either party. While this may appear to be excessive, the reader should bear in mind that there is no provision in law for a ‘nil’ pension adjustment order and consequently, a formal Order may be required even if no relief has been claimed. This is also because of the discretion that the trustees hold regarding, say, contingent benefit. A pension adjustment order will set out what is required of the trustees.

If the terms of the pension adjustment order have been agreed, then an efficient way to proceed would be for the solicitor to draft the pension adjustment order and have it approved by the trustees and the solicitor for the opposing party. The solicitor then

ought to lodge with the Motion, the Notice to Trustees, the Affidavits of Service for the Notices (one to the solicitor for the opposing party, one to the pension trustees), four copies of the draft Pension Adjustment Order and the original letter of approval of the trustees of the draft Order. This letter of approval cannot be in the form of an email or unsigned letter. A letter of approval from the solicitor for the opposing party has also proved of assistance in past applications.

The Grounding Affidavit for the Motion

It is necessary for the Notice of Motion to be grounded on an Affidavit. The Affidavit need not be prolix or record every step in the case but ought to summarise the essential facts. It should also exhibit the original terms of settlement. It is not essential for the affidavit to be sworn by the Applicant/ Respondent. It is usually sufficient for the solicitor to act as deponent given that this is a procedural matter.

The Notice of Motion

The Notice of Motion should refer to the terms of settlement and outline the relief to be sought.

Once the Grounding Affidavit has been filed and the Notice of Motion has been filed and issued, it should be served on the other party’s solicitor. After 11 days have elapsed, an Affidavit of Service should be sworn and filed.

Affidavit of Means (again)

While Order 59(2)(ii) provides that the Affidavit of Means must be dated within six months of the issue of the Notice of Motion, given the discretion afforded to the Court in deciding on proper provision, I have found it helpful to check the date of the Affidavit of Means against the date of the hearing of the Motion. If, for example, the Affidavit of Means was dated 1st December 2022, then it would be in time for the issue of the Motion on 31st May, but, if a date were given in October 2023, by then the Affidavit would be more than 10 months old and this may make for a more difficult scenario for the Court where gaps may appear in the information. The Court has inter alia a discretion pursuant to Order 59(3) to adjourn the application or request further evidence. Consequently, it may make for an easier decision and smoother running of the case where the Affidavits of Means are more recent. While not conclusive, I have found that a useful rule of thumb has been to have the Affidavit of Means dated within three months of the date of the ruling of the terms.

Preparation for the Hearing of the Motion

In advance of the hearing of the Motion, the solicitor for the moving party should prepare a Booklet of Pleadings for the Court, properly indexed, paginated and tabbed. A copy should be available also for the opposing party.

Where one of the parties acts pro se and/or even if they have legal representation if, say, he/she resides overseas or is working overseas, he/she may not wish to attend at the hearing of Motion. If that is the case, then their consent or agreement to the

ruling of the terms shall be verified on affidavit or otherwise verified or authenticated in such manner as the Court considers sufficient [see Order 59(35)(4)]. In that instance, the agreement could be witnessed by an independent practitioner or third party. If a practitioner acts for the party who is not attending, then they could prepare an affidavit for the litigant to sign which outlines confirmation of their consent to the terms being ruled and indicates that they are aware that the matter will proceed in their absence. Where the litigant acts pro se, obtaining this affidavit may be more problematic but the solicitor for the opposing party ought to write requesting such an affidavit. If it is not forthcoming but, say, the litigant in person writes a letter or email to the solicitor for the other party, the correspondence could be exhibited in an Affidavit of the solicitor of the moving party. The solicitor for the moving party could file an affidavit exhibiting their request for the above documentation from the lay litigant and any reply received. While the Court does have a discretion on this point, pursuant to the rule cited above, relying solely on the Affidavit of Service may be insufficient.

An alternative to ruling the terms of settlement with a litigant who acts pro se might be to issue a Notice of Motion by Judgment in Default of Appearance/Defence as appropriate but one should bear in mind the potential additional cost in that two court attendances (before the County Registrar, then in the Judges List) will be required along with the affidavits and booklets and other work that must be put into such attendances.

I have found that a useful rule of thumb has been to have the Affidavit of Means dated within three months of the date of the ruling of the terms

Susan Martin is the President of the DSBA and principal of Martin Solicitors, Clarehall, Dublin 13

New Work/Life Balance Law

New employment rights for parents and carers came into effect on the 3rd July 2023 pursuant to the Work Life Balance and Miscellaneous Provisions Act 2023 (“the 2023 Act”). Patrick Walshe delves into the new legislation and outlines what is now the law and what is expected to become law in the near future

Breastfeeding Entitlements

The 2023 Act amends the Maternity Protection Acts 1994 to 2022 to extend the period during which employees who are breastfeeding are entitled to take daily breaks or to a reduction in their working hours for the purposes of breastfeeding a child or expressing breast milk – from 26 weeks post-birth to two years (104 weeks) post-birth.

Employees who are breastfeeding are entitled, now for a period of up to 104 weeks post-birth, to either of the following:

• Paid time off work as a break for the purposes of breastfeeding in their place of work for one hour each working day. The daily paid time off can take the form of one break of 60 minutes or as shorter breaks which together make up 60 minutes, as agreed between the employer and employee; or

• A reduction in working hours by one hour each working day without loss of pay for the purposes of breastfeeding outside of their place of work. The reduction in working hours without loss of pay can take the form of one period of 60 minutes or shorter periods which together make up 60 minutes, as agreed between the employer and employee.

Part-time employees who are breastfeeding are entitled to breaks or a reduction in working hours for the purposes of breastfeeding on a pro-rated basis. Employers are obliged to provide appropriate facilities for breastfeeding in the workplace unless to do so would give rise to a cost for employers that is greater than a nominal cost.

Employees who are breastfeeding must give notice in writing to their employer of their intention to exercise their entitlement to take time off from work or have their working hours reduced for the purposes of breastfeeding. Employers are entitled to request evidence of the date of birth of the child of the breastfeeding employee.

Section 3 – New Special Leaves

As referred to, the legislation also makes provision for two new forms of Special Leave:

• Medical Care Leave

This will allow employees to take leave to provide personal care or support to:

• Children;

• Spouses;

• Civil partners;

• Cohabitees;

• Parents;

• Grandparents;

• Siblings; or

• Persons residing in the same house.

It will arise where the other person needs “significant care or support” for a “serious medical purpose”.

The level is fixed at present at five days of leave in any period of 12 consecutive months.

The employer will not have to pay the employee during periods of Medical Care Leave.

At the employer’s request, the employee in question must furnish information that the employer may reasonably require in relation to:

• The employee’s relationship with the other person;

• The nature of the personal care or support required; and

• “Relevant evidence” in relation to the need of the other person for this care/support (in practice, this is most likely to be a medical certificate).

• Domestic Violence Leave

This is also a new form of Special Leave. It will apply where an employee is either experiencing domestic violence now or has in the past.

The purpose of the leave is to allow the employee in question to:

• Seek medical attention;

• Obtain ser vices from a victim services organisation;

• Obtain psychological or other professional counselling;

• Relocate temporarily or permanently;

• Obtain an order under Domestic Violence Act 2018 (such as a Barring Order, Safety Order or Protection Order);

• Seek advice or assistance from a lawyer;

• Seek assistance from An Garda Siochana; or

• Seek or obtain any other relevant service.

Unlike Medical Care Leave, an employer will be required to pay the employee during periods of Domestic Violence Leave – it is intended that a rate of “domestic violence leave pay” will be fixed by Ministerial Order.

Like Medical Care Leave, however, it is capped at five days in any period of 12 consecutive months.

More Employee Entitlements on the Way

The 2023 Act provides for several further additional rights for employees that are expected to come into effect in the coming months.

The concepts of remote and flexible working attracted a great deal of attention in the last few years –especially with the advent of Covid.

• The Government embraced the concept of Remote working, culminating in a draft Scheme being published in 2021.

• Separately, the EU Work Life Balance Directive (2019/1158) was due to be incorporated into Irish law in August 2022. The Directive is primarily concerned with flexible working.

These concepts are relatively distinct – Remote working does not involve any change to terms and conditions of employment except working location. Flexible working can encompass changes to working hours/patterns.

The Government decided that both concepts would be addressed in a single piece of legislation – the Work Life Balance and Miscellaneous Provisions Bill 2022. The legislation will also deal with a number of other topics, including the creation of two new forms of Special Leave (Medical Care Leave and Domestic Violence Leave).

What are the key changes on the horizon?

(a) All employees may request remote working arrangements.

(b) Parents and carers may request flexible working arrangements for caring purposes.

Patrick Walshe is a partner and head of the Employment Group at Philip Lee Solicitors

Remote working does not involve any change to terms and conditions of employment except working location

(c) The legislation also creates certain new types of Special Leave.

Section 1 – Flexible working arrangements for caring purposes

What is the purpose of these arrangements? There are two circumstances where flexible working arrangements can be requested:

(a) For an employee to care for a child; and

(b) For an employee to provide personal care or support for medical care purposes.

What is involved in providing care to a child?

An employee who is a relevant parent can request flexible arrangements to care for that child up to the age of 12.

Notably, unlike the second category, there is no requirement for the child to be suffering from an underlying medical condition – the purpose of the legislation is simply to provide care.

There is an exception to the age threshold – if the child has a disability or long-term illness, the threshold is 16 years.

What is involved in providing personal care or support?

The person concerned must be “in need of significant care or support for a serious medical reason”.

An employee can request flexible working arrangements to provide “personal care or support” to any of the following:

(a) A child of the employee;

(b) The spouse/civil partner of the employee;

(c) The cohabitant of the employee.

(d) A parent/grandparent of the employee;

(e) A brother/sister of the employee; or

(f) A person other than the above who reside in the same household as the employee.

What exactly are “flexible working arrangements”?

The legislation defines them as:

“a working arrangement where an employee’s working hours or patterns are adjusted, including through the use of remote working arrangements, flexible working schedules or reduced working hours”.

What does this mean?

In summary:

• Remote working arrangements typically means an arrangement whereby some or all of the work ordinarily carried out by an employee at an employer’s place of business under a contract of employment is provided at a location other than at the employer’s place of business without change to the employee’s ordinary working hours or duties;

• Flexible working schedules are not defined in the legislation. A commonsense approach suggests that this will include a scenario where the employee works earlier or later than their previous working hours. It may, for example, mean that the employer approves a range of hours and the employee decides when to perform their duties within that range. It could also involve condensed working days or weeks. However, and importantly, the legislation is not prescriptive in what is/what is not a flexible working schedule – meaning an employee is free to formulate a proposal.

• Reduced working hours is obviously selfexplanatory.

Could a flexible working arrangement theoretically involve combinations of (a), (b) and (c)?

Yes – the wording of the legislation would allow for this.

For example, an employee working 9-5 five days a week at present in their employer’s premises might seek to work a four-day week going forward, with two of

those days worked remotely and starting early/finishing early on the remaining two days.

Is there a service threshold?

An employee must work for an employer for six months before flexible working arrangements can commence (although there is nothing to prevent an employer from allowing arrangements prior to that).

What is the process for making an application?

The application must:

• be in writing;

• specify the form of the flexible working arrangement requested; and

• state the date of commencement and duration.

At the employer’s request, the employee must also provide evidence that they are eligible. In the case of caring for a child, this includes a birth certificate. In the case of caring for medical purposes, this would likely include a medical certificate.

When must the application be made?

At least eight weeks before the proposed start of the flexible working arrangements.

What are the employer’s obligations?

The employer must consider the request “having regard to his or her needs and the employee’s needs”.

The employer must then respond to a request at least four weeks after receiving it.

Where the employer is encountering difficulty in assessing the viability of the request, it may extend the period by eight weeks.

Is there a process if the employer agrees to a request?

There is a simple process – an agreement must be prepared setting out the details of the flexible working arrangement and the commencement date. Both parties must sign it.

Is there a process if the employer refuses a request?

The employer must respond in writing and the response must set out the reasons for the refusal.

Can changes be made to proposed arrangements once agreed?

Yes. The legislation provides that the parties can agree to vary the contents of the flexible working agreement including:

• Postponing the arrangements;

• Altering the period of the arrangements; or

• Any other a greed variations.

Provision is also made for the employee to postpone the arrangements where the employee themselves is unable to provide care by reason of illness or incapacity.

Can arrangements be terminated?

Yes – an employer can terminate in certain circumstances, but there are controls in place. The employer will have to justify termination by reference to “a substantial adverse effect” on the operation of the business by reason of:

• Seasonal variations in the volume of the work concerned;

• The unavailability of a person to carry out the duties of the employee;

• The nature of those duties;

• The number of employees overall;

• Whether any other employees have approved flexible working arrangements in place; or

• Any other relevant matters

The employer, in making a decision, may have regard to its own needs, the employee’s needs and the requirements of any Code of Practice.

The employer will be required to set out in writing why the arrangements are being postponed – and the employee must be given a period of seven days within which to make representations.

Can employees change their minds?

Yes – an employee can request that they be allowed to revert to their original working arrangements (referred to in the legislation as “an early return”). Employers are not obliged to agree to an early return – but they must consider the request having regard to their needs, and the employee’s needs.

Is the employer protected if a flexible working arrangement is abused?

Yes. The legislation is predicated upon the flexible working arrangement being for the purpose of providing care/support.

If an employer has “reasonable grounds” to believe this is not the case, it can terminate the arrangement in writing. The notice of termination must, however, set out the grounds on which the employer relies.

The employer is also obliged to notify the employee in advance of termination and give the employee seven days to make representations. The employer must consider those representations before making a final decision.

Can an employee bring a WRC claim in connection with any of this?

Yes, unsurprisingly, an employee will have recourse to the WRC.

If an employer does not respond to a flexible working request within four weeks (or an extension, as allowed for), the WRC can direct the employer to do so.

The WRC will also have powers to intervene in cases where the employee maintains that their right to a postponement have been contravened. Similar recourse will be available where the employer terminates the arrangement and the employee believes this is unjustified.

The WRC will have the power to award compensation in certain circumstances – but this is capped at 20 weeks’ remuneration.

Can an employee bring a WRC claim to compel an employer to agree to a request?

No. There are no plans to give the WRC the power to direct an employer to approve a request for a flexible working arrangement – the WRC only has the power to direct the employer to respond.

Section 2 – remote working arrangements

What is the purpose of these arrangements?

The legislation will allow any employee to request remote working arrangements (in contrast to flexible

An employee who is a relevant parent can request flexible arrangements to care for that child up to the age of 12

working, there is no requirement that the remote working arrangement be for the purpose of providing care).

Is there a service threshold?

The employee must have six months of continuous service before the remote working arrangement can commence.

What is “remote working”?

Under the Bill, “remote working” is an arrangement whereby:

“Some or all of the work ordinarily carried out by an employee at an employer’s place of business under a contract of employment is provided at a location other than at the employer’s place of business without change to the employee’s ordinary working hours or duties.”

How will an application be made?

An application for remote working must:

(a) Be in writing;

(b) Specify the details of the proposed arrangement;

(c) Specify the reasons for the request;

(d) Include details of the proposed location; and

(e) Include details in relation to the suitability of the proposed location.

It is intended that a Code of Practice will be published which will assist employees in making requests.

When must a request be made?

A request must be made at least eight weeks before the proposed start of the arrangement.

What are the employer’s obligations?

The employer must consider the request having regard to:

• His or her needs;

• The employee’s needs; and

• The “requirements” of the Code of Practice already referred to.

Must employers respond within a period of time?

The employer must respond to a request at least four weeks after receiving it.

Where the employer is encountering difficulty in assessing the viability of the request, it may extend the period by eight weeks.

Obviously these periods mirror those applicable to flexible working arrangements.

What happens if an employer agrees?

Where an employer accedes to a request remote working, both parties must sign an agreement that is prepared by the employer setting out:

(a) Details of the arrangements;

(b) Start date; and

(c) Expiration date (if there is one).

Can an employer decline?

Yes. The legislation does not oblige an employer to agree to a proposal – although if refusing, the employer must set out the reasons for refusal in writing, having had regard to:

• His or her needs;

• The employee’s needs; and

• The “requirements” of the Code of Practice.

Can an employer terminate the remote working arrangement?

Yes, an employer can terminate a remote working arrangement if satisfied that it would have or is having a substantial adverse effect on the business by reason of:

(a) Seasonal variations in the volume of work concerned;

(b) The unavailability of a person to carry out the duties of the employee;

(c) The nature of the duties of the employee in the employment; or

(d) Any other matters relevant to the substantial adverse effect on the operation of his or her business professions.

The employer, in making a decision, may have regard to its own needs, the employee’s needs and the requirements of any Code of Practice.

The employer will be required to set out in writing why the arrangements are being terminated – and the employee must be given a period of seven days within which to make representations.

Again, this mirrors the provisions in the legislation relating to flexible working.

Can changes be made to proposed arrangements once agreed?

As in the case of flexible working arrangements, the legislation provides that the parties can agree to vary the contents of a remote working agreement including:

• Postponing the arrangements;

• Altering the period of the arrangements; or

• Any other a greed variations.

An employee can also request an early return to the original working arrangements and the employer must respond within four weeks. The employer is also required to provide reasons if it refuses to agree.

What happens if an employee abuses the remote working arrangement?

The legislation, once again, mirrors the flexible working anti-abuse provisions. A remote working arrangement is predicated upon the employee continuing to discharge all of their duties of employment.

If an employer has “reasonable grounds” for believing that an employee who is on an approved remote working arrangement is not discharging all of their duties, the employer may terminate the agreement. The same seven-day right to make representations applies as in the case of flexible working.

Involvement of the WRC

Again, employees will have recourse to the WRC – but the WRC will only have the power (as in the case of flexible working) to compel an employer to respond to a remote working request.

The WRC will also have similar powers to intervene in cases where the employee maintains that their right to a postponement have been contravened, or where the employer terminates the arrangement and the employee believes this is unjustified.

The WRC will have the power to award compensation in certain circumstances – but this is capped at four weeks’ remuneration.

The WRC will not have the power to compel an employer to agree to a remote working proposal. P

If an employer has “reasonable grounds” for believing that an employee who is on an approved remote working arrangement is not discharging all of their duties, the employer may terminate the agreement

Piercing the Corporate Veil – A WARNING FOR DIRECTORS

Lorna Osborne and Mairi-Claire Power report on the unprecedented case of Powers v Greymountain Management Ltd (in liquidation) [2022]

IEHC 599, wherein the High Court has, for the first time, pierced the corporate veil and made two directors and two shadow directors personally liable for the fraud of a company

Applications for Judgment in Default of Defence

Since the seminal decision of the House of Lords in Salomon v A Salomon & Co Ltd [1897] AC 22, the doctrine of separate legal personality has been a bedrock of Irish company law and the Courts here have consistently recognised companies as legal persons distinct from their shareholders and directors.

However, the rule in Salomon v Salomon is not absolute. In certain circumstances, the Courts may ‘look through’ a corporate entity to the persons standing behind the company. This is known as ‘piercing’ or ‘lifting’ the ‘corporate veil’ but, until this case, no Irish Court has ever held that the corporate veil should be pierced in order to allow directors to be held personally liable for the acts or omissions of a company.

Circumstances of Powers v Greymountain

In this case, the defendant, a registered company, Greymountain Management Ltd (Greymountain), was under the directorship of two directors, Liam Grainger and Ryan Coates, with brothers David and Jonathan Cartu acting as shadow directors of Greymountain.

All four directors were sued by Florida-based investor William Thomas Powers as the lead plaintiff among 35 other plaintiffs who were suing the directors for more than $4.5 million in losses. The investors believed they were trading in binary options (a

form of gambling on the future value of assets and commodities). However, it was discovered that no legitimate trades were carried out, the binary options were never purchased, and instead the investors’ money was siphoned off for the use of the shadow directors and others.

The plaintiff sought orders against the directors and the shadow directors making them personally liable for the funds which were lost as a result of the alleged fraud. It is against this background that Mr Justice Michael Twomey was required to consider whether the actions of the directors and the shadow directors in this instance warranted the piercing of the corporate veil.

Piercing the Corporate Veil

Based on the evidence presented, Twomey J concluded that Greymountain was used as an instrument of fraud and that “the sole purpose of Greymountain was to defraud unsuspecting individuals of their money”. Twomey J noted that, while lifting the corporate veil should not be taken lightly, there are certain circumstances where a court would be justified in piercing the corporate veil.

Having reviewed judgments given in prior High Court cases, Twomey J said that the Courts will contemplate lifting the corporate veil in the case of:

• fraud or the misapplication of monies or

Lorna Osborne is a partner at Addleshaw Goddard and Mairi-Claire Power is an associate at Addleshaw Goddard misrepresentation on the part of the directors; • directors siphoning off large sums of money out of the company so as to leave the company unable to fulfil its obligations; or • negligence or impropriety on the part of the directors in the conduct of the affairs of the company, provided that the facts are established in a plenary hearing and not merely on affidavit and that the parties have had the opportunity to properly defend themselves.

Twomey J was satisfied that the above conditions had been met in this case and therefore the “interests of justice” required the lifting of the corporate veil.

Liability of the Shadow Directors

When considering the shadow directors, Twomey J noted that the evidence showed that on the balance of probabilities they were the “controlling minds” behind the fraud. However, he saw no reason in principle to distinguish between shadow directors and directors. Twomey J concluded that the shadow directors were morally liable for the loss caused to the investors by Greymountain and therefore could not evade legal liability by hiding behind the corporate veil.

Twomey J emphasised that, while he did not believe the Courts should lift the corporate veil lightly, it would be an “affront to justice” to allow the shadow directors to hide behind the corporate veil in such circumstances and held the shadow directors personally liable for the loss suffered by the plaintiff as a result of the fraud.

Liability of Directors

The Court then turned to look at the role of the directors and acknowledged that their failings were completely different to the fraudulent acts of the shadow directors. Twomey J concluded that the directors were unwittingly involved in facilitating the fraud as a result of the dereliction of their duties as directors.

The Court distinguished between the directors’ differing roles.

• Mr Grainger, an experienced company director previously holding directorships in over 400 companies, claimed that he was unaware of the operations of Greymountain and that he had a purely administrative role which was more akin to a company secretary. However, the Court noted that Mr Grainger did have a role in facilitating certain parts of Greymountain’s operations including signing pay processing agreements, transferring money, signing accounts and resolving complaints against Greymountain. Despite having experience as a company director, the Court found that Mr Grainger chose not to acquire sufficient knowledge of Greymountain to enable him to discharge his duties as a director.

• Mr Coates, on the other hand, had no previous experience as a company director and had taken on the role, at his mother’s suggestion, in order to cover his student expenses. The Court accepted that Mr Coates was unaware of the fraud and did

not directly benefit from the fraud but found that, while Mr Coates may not have appreciated his breach of duties, ignorance of the law is not a defence.

Twomey J noted that the directors were unlucky to be ‘handed over the keys’ of Greymountain and the Court had some sympathy towards the directors. However, Twomey J concluded that Mr Coates and Mr Grainger were both in complete dereliction of their duties. The directors were found to have abrogated their responsibility as directors to the shadow directors who used that opportunity to defraud investors. Consequently, the Court held that the impropriety and dereliction of duties on the part of the directors was of such a degree as to justify both directors being held personally liable for the loss suffered by the plaintiff.

Conclusion

This High Court judgment serves as an important cautionary reminder to company directors that the benefit of separate legal personality is not guaranteed and can be lifted by the Courts in exceptional circumstances. Directors should ensure that they fully understand their duties as directors and that they exercise appropriate control over, and awareness of, the activities of their company.

While he did not believe the Courts should lift the corporate veil lightly, it would be an “affront to justice” to allow the shadow directors to hide behind the corporate veil in such circumstances

Resisting Costs Awards

Gearóid Carey reviews a recent Court of Appeal decision that dealt with the issue of costs for the unsuccessful litigant

In James v Watters & Shortall [2023] IECA 144, the Court of Appeal recently rejected arguments by an unsuccessful litigant who sought to avoid an adverse costs award by relying on arguments not within the scope of Section 169(1) of the Legal Services Regulatory Act 2015 (the “2015 Act”).

Order 99 of the Rules of the Superior Courts governs the position in respect of costs and provides at rule 2(1) that, subject to statute (including sections 168 and 169 of the Act), costs are at the discretion of the Court. However, Order 99, rule 3(1) circumscribes that discretion somewhat by providing that, in considering the award of costs, the Court is obliged

to “have regard to the matters set out in section 169(1) of the 2015 Act”. Section 169(1) of the 2015 Act sets out the general proposition that a party who is entirely successful in civil proceedings should be entitled to an award of costs as against the unsuccessful party, unless the Court orders otherwise. In considering whether to order otherwise, it provides that the Court is to have regard to “the particular nature and circumstances of the case” and “the conduct of the proceedings by the parties”, including by reference to some seven specified criteria, outlined at sub-sections (1)(a) to (g).

In her costs ruling on behalf of the Court of Appeal, Butler J referenced the existence of these

criteria, but further observed that those “factors are not necessarily exhaustive and may or may not be relevant to the circumstances of the individual case”. She then commented that the written submissions on costs of the plaintiff/appellant did not advance any grounds specified within those listed at Section 169(1) of the 2015 Act. Rather, those submissions relied on two grounds not amongst the seven specified criteria, namely (i) that the substantive decision was legally incorrect and (ii) the poverty of or hardship upon plaintiff/appellant. In the first regard (and notwithstanding that any unsuccessful litigant likely holds the same view), Butler J noted that any decision on costs has to be made on the basis of the judgment as given and not on the basis the party involved believes they may have a successful appeal. In the second regard, the Court noted that the hardship complaint was in fact inconsistent with the case made by the appellant in the substantive proceedings. Irrespective, Butler J held that the fact a person may not have the means to discharge a costs order does not have a bearing on whether it is appropriate to make an order for costs against them. Rather, the ability to successfully execute a costs order is

separate to whether such an order should be made. Accordingly, Butler J, with whom the other two judges agreed, was satisfied to make an order against the appellant for the costs of the appeal, with a stay on execution to accommodate leave to appeal to the Supreme Court being sought.

The decision is interesting in that, although Butler J did acknowledge that the factors relevant to the award of costs identified at Section 169(1) were not exhaustive and may not be applicable, it was clear that the non-statutory grounds relied on here by the appellant did not find favour with the Court of Appeal as a basis to deviate from the general principle of costs following the event. Whilst greater clarity is still awaited as to what non-statutory grounds may warrant costs not following the event, what is apparent from the judgment is that the starting point for submissions seeking to persuade a Court not to follow the general principle should be the statutory grounds at Section 169(1) of the 2015 Act. A party who fails to rely on one or more of them to the extent applicable runs the risk, as the appellant here found out, that non-statutory grounds may be unpersuasive.

Gearóid Carey is a partner with Mason Hayes & Curran and is a member of the DSBA Commercial Law Committee

The fact a person may not have the means to discharge a costs order does not have a bearing on whether it is appropriate to make an order for costs against them

Supreme Court has say on Suspending Employees

The Supreme Court recently decided the case of O’Sullivan v HSE [2023] IESC 11, in which it considered the procedures necessitated when suspending persons from employment. While the facts of the case are of particular relevance to hospital consultants employed by the HSE, David McCauley says that the judgments merit close scrutiny by any employers considering the serious step of exercising a contractual discretion to suspend someone from their employment

The Facts

The case concerned a consultant obstetrician and gynaecologist who conducted a ‘feasibility study’ (using equipment he had purchased personally) on five women who attended the hospital to undergo hysteroscopy procedures. None of the patients had consented to this part of the procedure, nor had the consultant sought the requisite ethical approval.

The provisions in the consultant’s contract governing the disciplinary procedure were described by the court as “extremely convoluted”. In broad terms, where it appears to the CEO of the HSE that by reason of any concern of conduct, there may be ‘an immediate and serious risk to the safety, health or welfare of patients’, the consultant may be required to take what is described as ‘administrative leave with pay’ for such time as may reasonably be necessary for the completion of any investigation.

When the events were reported to senior personnel within the hospital, it took a number of steps, which included commissioning expert reviews which did not suggest the consultant presented any ongoing risk to patient safety but did opine that the consultant appeared not to have demonstrated insight or remorse for his actions. It also made an open disclosure to the affected patients who reported feelings of violation and alarm.

The hospital, following these steps, wrote to the CEO of the HSE noting a concern that the consultant’s conduct ‘may pose an immediate and serious risk to the safety, health and welfare of patients and staff’ The CEO then commenced the disciplinary procedure and required the consultant to take administrative leave with pay. The CEO then sought the expert opinion of a clinician (the “Expert Opinion”) which concluded that the expert did not consider the

consultant to pose an immediate and/or serious risk to patient safety.

Following this, the CEO (not himself a qualified doctor) communicated that he considered the consultant’s behaviour to amount to misconduct and that he intended to propose his removal from office.

Previous Judgments and Determinations

Noonan J, writing for the Court of Appeal, overturned the decision to suspend the consultant on the basis that there was no evidence available to the CEO that he represented an immediate and serious risk to patients, but did not interfere with the other decisions, which meant the disciplinary procedures could continue. He held there was an obligation on the CEO under the contract of employment to review the consultant’s suspension periodically as a consequence of the duty of trust and confidence

underpinning the employment relationship. The decision to suspend was “an entirely flawed conclusion arrived at in the teeth of the actual evidence” inasmuch as the CEO gave no clear indication of his reasons for departing from the Expert Opinion.

The decision of the Court of Appeal had caused some alarm that the proper working of a suspension might be frustrated by allowing employees to make applications to court whenever an investigation uncovers evidence that is beneficial to the employee. Arguably, it might also require an employer to form a view about evidence being collected before an investigation is complete.

The Supreme Court Judgments

The Court accepted that the decision to dismiss was in the nature of a holding suspension (a suspension for the purpose of an investigation, not directly implying

David McCauley is a senior associate in the Employment, Pensions and Incentives Group at McCann FitzGerald

any wrongdoing) rather than a punitive one (where suspension is imposed as a sanction for misconduct), but noted that it nevertheless had a definite impact on the individual, possibly affecting their reputation and possibly making it more difficult for them to resume their occupation. The Court adopted and endorsed the following passage from the judgment of Noonan J in Bank of Ireland v Reilly in this respect: “while the full panoply of fair procedures may not have been engaged at [this stage of holding suspension],… basic fairness [required] at least a rudimentary explanation of the reason for the suspension which admitted of the possibility of some exculpatory response.”

This standard was found to be satisfied by ‘a comfortable margin’, as set out further below. Dunne J, in a key passage, stated as follows:

“Obviously, a person who is being suspended must be informed of the reason for his suspension… a power of suspension must be viewed as permitting a suspension to continue only for the period of time during which would not be reasonably practicable to hold a full hearing into the matter… a short period of suspension with pay against a clearly defined backdrop of consecutive steps to resolve the disciplinary issue is less likely to warrant the courts’

intervention on the basis that the procedures, or their application, is unfair to the person concerned…

“Where it is clear that a decision to [suspend] is being contemplated, that person should be so informed and should be afforded the opportunity to make representations as to why that should not occur. That is no more than fairness requires. That does not mean the “full panoply” of fair procedures… but it is a basic level of fairness that is required…

“…in cases of extreme urgency, it may not be possible to take the sort of steps that occurred in this case. However, provided an opportunity is given to someone who has been placed on administrative leave, or suspended, to make representations at the earliest opportunity thereafter…”

The Court noted that there was ‘little if any dispute’ about the standard applicable to decisions to dismiss, which is that set out in the English case of Braganza v BP Shipping Limited & anor which decided that “a decision-maker’s discretion will be limited, as a matter of necessary implication, by concepts of honesty, good faith and genuineness and the need for absence of arbitrariness, capriciousness, perversity and irrationality. The concern is that the discretion should not be abused”.

The test, therefore, is not one of fairness or reasonableness in the colloquial sense. In this case,

the Court noted that the CEO had set out that he had consulted with a number of people, had regard to all the documentation and the representations made on behalf of the consultant. The court disagreed with the Court of Appeal conclusion that there was no evidence to justify the CEO’s conclusion that there was an immediate and serious risk to patient safety, noting that the contractual language allowed a suspension where “it appears to the CEO” that there may be such a risk. It noted that the CEO had been concerned about the conduct which was so far removed from established norms of clinical study and patient treatment, but in particular the absence of informed consent and the response and lack of awareness of the consultant when challenged. The CEO was, therefore, entitled to reach the ‘careful and considered’ conclusion he did as there was “a wealth of information available” concerning issues of patient safety.

Interestingly, O’Donnell CJ in his concurring judgment noted that “[t]he parties could in theory exclude [the] implication [that a decision to suspend will not be irrational], or indeed, set a higher standard”.

Dissenting judgment

Woulfe J in the Supreme Court parted company with the majority in how the Braganza principles should be applied to the facts. He noted that the requirement for there to be an “immediate and serious” risk to patient safety was, in his view, a strict test with a high bar, and that the perceived seriousness of the consultant’s past conduct could not itself determine the serious level of risk going forward. He doubted whether a risk could be ‘immediate and serious’ where there had only been a single incident by a doctor with an unblemished disciplinary record over a long career and who had indicated he would no longer conduct clinical research at the hospital. He was influenced by the fact also that no risk had materialised for the period of eleven months between the incidents and the suspension during which time the consultant continued to carry on his clinical practice. In these circumstances, he characterised the decision to suspend as “bizarre and irrational”

Respectfully, the approach adopted by Woulfe J might be criticised for engaging with the detail of the case and arriving at conclusions on the merits, an approach not permitted by the applicable legal test. As O’Donnell CJ noted in his judgment, “the inevitable consequence would appear to be to impose yet one more layer of legalism on a process which, on any view, already requires quite elaborate procedural steps”, making it even more protracted, costly and prone to being derailed by challenge than is already the case.

Concluding Remarks

Representations had been sought from the consultant in this case as to the proposal to suspend him and it is clear that this will continue to be expected. Furthermore, Dunne J noted that “it is difficult to disagree with a proposition that if a report or other information came to light that completely changed the underlying basis for the suspension, a reconsideration of the continuation of the suspension might be required” but that the original decision to suspend would remain valid.

The endorsement of the Braganza test by the Court signals a high standard of review will apply to the

exercise of a discretionary power to suspend. The test is not whether a court will agree with, or consider fair or reasonable, a decision to suspend; instead, the conduct must be demonstrated to be either dishonest or in bad faith, or not genuine or arbitrary, capricious, perverse or irrational. Braganza sets out principles applicable to decision-making in a contractual context generally and may be of wider relevance when employers are exercising any contractual discretion.

While there was no substantial dispute about the facts in this case and an agreement as to the applicable legal test, there remained a sharp disagreement between the judgments. As O’Donnell CJ stated, it is therefore important to be cognisant of the limited jurisdiction and function of the courts in disputes of this nature. Legal advice continues to be strongly advisable where a decision to suspend is being entertained.

It might be ventured that the period of ten months in this case between senior management being notified about concerns and the decision of the CEO to suspend the consultant would be unlikely to be acceptable outside of the specific (rather convoluted) contractual context here.

In the context of suspensions affecting those in professional roles, ‘while the possibility of a collective groupthink should not be dismissed’, O’Donnell CJ pointed out that the decision-maker is entitled to place reliance on expert opinion and where a decision is taken in accordance with and in reliance upon expert advice, it becomes difficult to properly and fairly characterise it as arbitrary, perverse or capricious. While the Court has acknowledged that decision makers can depart from expert advice, the focus on the expert opinions here is somewhat anomalous, as in many cases, and in particular outside of regulated professions, a decision to suspend might be more typically characterised as impressionistic in nature. Subject to the Braganza principles, there is nothing in the judgments to suggest any impropriety in such suspensions.

Braganza sets out principles applicable to decision making in a contractual context generally and may be of wider relevance when employers are exercising any contractual discretion

Intoxicant Testing in the Workplace

Drugs and alcohol in the workplace are not a new problem. Jennifer Cashman notes a significant increase, over the past number of months, in queries from clients around this topic. In this article, Jennifer reviews the employment law and HR issues arising and gives practical business advice on how to manage and navigate this area

Irish people joint-fourth highest consumers of cocaine globally, says UN – this was a recent Irish Times headline arising from the Global Report on Cocaine 2023 from the United Nations Office on Drugs and Crime (UNODC). Presumably, the UNODC report goes some way to explaining this significant increase in queries that I have been getting from employer clients.

Legal Background

• The Safety, Health and Welfare at Work Act 2005 (“the Act”), at section 13, sets out for the first time that an employee must ensure that he or she is not under the influence of an intoxicant to the extent that she or he is in such a state as to endanger his or her own safety, health or welfare or that of others. “Intoxicant” is defined in the Act as “alcohol and drugs and any combination of drugs or of drugs and alcohol”. This definition encompasses both legal and illegal substances, it includes prescribed drugs and over the counter medications.

• The Act also sets out that, if reasonably required by his or her employer, an employee shall, while at work, submit to any appropriate, reasonable, and proportionate tests for intoxicants by, or under the supervision of, a registered medical practitioner who is a competent person, as may be prescribed. Importantly, however, this section was to be the subject of Regulations to give it full effect, but these Regulations were never implemented and show

no sign of being put in place in the near future. Therefore, this section of the Act, dealing with intoxicant testing, has never been commenced.

• Consequently, from a legal perspective, there is no statutory requirement for employees to undergo testing for intoxicants in the workplace and there is no statutory requirement for employers to test employees for intoxicants in the workplace. However, equally, there is no statutory prohibition on drug and alcohol testing in the workplace and therefore where an employer believes this is a workplace issue which needs to be addressed, there is nothing to stop an employer from introducing a policy around intoxicant testing in the workplace.

Employer’s Health & Safety Obligations

An employer’s duties under the Act are set out principally in Section 8 of the Act. This requires employers to ensure, so far as it is reasonably practicable, the safety, health, and welfare at work of all employees. Sections 19 and 20 go on to require employers to identify hazards in the workplace and to be in possession of a written risk assessment and to draw up a safety statement – if intoxicants could be a hazard in the workplace, then the safety statement should take account of this.

When Is Intoxicant Testing Appropriate?

Notwithstanding that the statutory framework for intoxicant testing has not been put in place,

employers may carry out drug and alcohol testing where it is provided for in:

(a) an employee’s contract of employment;

(b) any policy on intoxicants which the organisation may have in place that builds in appropriate consent; or

(c) with the express consent of the employee.

Consent is key to ensuring that employers can drug and alcohol test employees. It can be set out in the employees’ contracts, or in a policy, that the employee consents to undergo drug and alcohol tests if required by the Company. You should note that an employee can refuse to submit to a specific test and withdraw that consent however the employer could then potentially take disciplinary action for the refusal.

A message repeatedly being sent by the Irish Courts is that a legally defensible drug and alcohol testing procedure can only exist in circumstances where genuine consultation has taken place between the employee representatives and the employer company. Thus, a dismissal in respect of a test failure could be challenged on foot of a lack of consent in the first instance and a lack of consultation regarding the policy in the second instance.

Testing must be reasonable and proportionate and reflect the individual needs of the organisation, underpinned by identified areas within your risk assessment policy and safety statement. The

informed consent of the employee is central to a legally defensible test. While the precise type of testing to be rolled out by a company is a matter to be discussed with the employer’s occupational health advisors or consultants, employers are advised to bear in mind that the least invasive method of testing possible is the recommended method. Drug testing should only be carried out where there is good cause (i.e., where the employee’s impairment is obvious) or where it is random and justified in a safety-critical environment. However, even in a safety-critical environment, random testing would need, at the very least, to be underpinned by a strong risk assessment carried out by the employer’s health and safety consultants and referred to in the employer’s health and safety statement. Random testing is open to legal challenge and difficult to defend unless all the factors outlined have been taken into consideration.

It is important to note that the Data Protection Acts also have an impact on this area, since information regarding an employee’s health will constitute special category data. Therefore, where employers are seeking to obtain, store and use information regarding drug and alcohol intoxication or testing, the issue of explicit consent again arises. An employer’s suite of data protection documentation should reflect the intention to record and process such information in the course of employment.

Jennifer Cashman is head of employment at RDJ Solicitors. She is also a member of RDJ’s Healthcare and Cyber and Data Protection Teams

A dismissal in respect of a test failure could be challenged on foot of a lack of consent in the first instance and a lack of consultation regarding the policy in the second instance

Caselaw

In 2008, an Irish solder obtained an injunction preventing his dismissal on the basis of having tested positive for drugs. Although the employee tested positive for drugs, the High Court found that the Department had not discharged its obligations in relation to rolling out a transparent and agreed drug and alcohol policy. It was held that testing was not done in a fair or proportionate manner. It was noted that the employer had failed to properly advise employees that random drug testing was an integral part of the drug and alcohol policy.

Fair procedures in relation to drug and alcohol testing were examined by the then Employment Appeals Tribunal (now the Workplace Relations Commission “WRC”) in 2006 in the case of Kennedy (Claimant) –v- Veolia Transport Ireland Limited

The facts of this case were that the Claimant tram driver had been subject to written and verbal warnings for disciplinary matters. The Claimant had been tested positive during a random breath sampling of driving on a morning shift of the LUAS trains and the Claimant complained of a campaign of bullying and harassment, following the requirement that he attend for a urine sample test shortly thereafter. The Claimant refused to submit to the test and alleged sickness as an excuse.

In holding against the Claimant, the Employment Appeals Tribunal said that the breath sample was clear evidence that the Claimant was in excess of

limits for driving a tram and it appeared he had wilfully set out to avoid the urine test. There was no evidence that his targeting was unfair as the drug and alcohol policy in place had been previously negotiated with the employees’ Trade Union under a collective agreement and his dismissal had not therefore been unfair.

In this case the Claimant also raised an issue about the randomness of his selection for testing. As a result of the employee’s objection to his selection for testing, the method of selecting candidates for future testing was changed by the employer.

The Claimant also claimed that he, along with some 60% of drivers, had never received a copy of the Respondent’s drug and alcohol policy and that, unlike the practice with other public transport operators, he was given no advice by the Respondent on how long it might take for alcohol levels in the body to fall.

It is interesting that the particular facts of this case persuaded the Tribunal to hold that the Complainant had deliberately sought to avoid testing and that he was guilty of gross misconduct under the terms of the company grievance and disciplinary policy. The Tribunal considered that Claimant’s argument that he was being singled out for unfair treatment and, in this regard, it also considered the randomness of the method of selecting candidates for breath testing. Whilst, following the objection of the Claimant’s Trade Union in this case, the Respondent changed the method of selecting candidates for future testing, there was, nonetheless, no evidence adduced to the Tribunal

to substantiate the Claimant’s argument that he was unfairly targeted for the breath test. For all these reasons, the Tribunal found that the dismissal was not unfair and as a result the Complainant’s claim under the Unfair Dismissals Act failed.

Lessons from the Case Law Legally, an employer’s defence in an unfair dismissal case involving testing for illegal substances is clearly undermined in circumstances where either:

1. No policy or code of practice in relation to drug and alcohol testing exists; or

2. A drug and alcohol policy exists but is not enforced or in the alternative is not transparent in its application. When drafting a defence, employers will need to show that the policy was drafted according to the hazards identified in the risk assessment policy and the safety statement was further rolled out following training on the policy by relevant competent persons and that the employee at all times proffered informed consent to testing.

An employer should never of course force an employee to undertake a test (which could give rise to an alleged assault). Most employers who have testing in place will outsource the testing to a third party, perhaps an occupational medical advisor, and there will, and indeed there should, be consent built in by that third party to each test an employee undertakes. If a refusal arises, the employer can build in provisions to policies and procedures regarding potential suspension, investigation and disciplinary sanctions that will allow an employer to address an incident in the absence of consent to the third party to undertake a test.

On this point, it is important to note that even where an individual employee tests positive for drugs (or refuses), a full and fair investigation must take place under the employer’s Disciplinary Procedure before sanctions can be applied.

The Health & Safety Authority have some helpful guidance available for employers (see www.hsa.ie/eng/ Publications_and_Forms/Publications/Occupational_ Health/Intoxicants_at_Work_Information_Sheet_. pdf). However, they make the legal position clear that there are no statutory regulations requiring or supporting random testing and that it is essentially a matter of contract agreed between employer and employee. Thus, as with all contractual matters, the issue of consent and agreement arises.

Other Employment Law Issues to Consider

Intoxicants in the workplace can raise other employment law issues. For example, an allegation that intoxicant abuse is occurring in the workplace could amount to a protected disclosure and would have to be addressed accordingly. The most recent legislation in this area, the Protected Disclosures (Amendment) Act, 2022, sets out that nothing in the legislation obliges any person to accept and follow up on anonymous reports made but of course an employer may decide to do so.

Furthermore, alcohol and drug dependency are likely to be disabilities for the purposes of the Employment Equality legislation and so employers must carefully navigate this complex area

of employment law to ensure that they do not fall foul of their obligations to reasonably accommodate employees. For example, in the 2017 case of Christopher Reddin (Claimant) v Irish Aviation Authority (Respondent) [2017] 28 ELR 216, the Labour Court stated as follows:

“The Court is of the view that generally speaking when dealing with an employee who has an alcohol dependency problem, employers should give such employees an opportunity to seek professional treatment before considering dismissal. However, each case must be judged on its merits. Factors such as risk to safety, the level of responsibility the employee has and contact with the public are taken into account when deciding whether or not the penalty of dismissal was within the range of reasonable responses an employer might take.

In that case, the employer successfully defended the employee’s claim and the Labour Court noted the following:

• Factors such as risk to safety, the level of responsibility the employee has and contact with the public are all factors in deciding whether a dismissal was reasonable and fair;

• As a general principle, employers should give an employee with an alcohol dependency problem an opportunity to seek professional treatment before considering dismissal;

• There was a policy in place on managing workplace intoxicants and this was supported by a protocol for random testing;

• The policy clearly stated that attending the workplace while under the influence of drugs and/ or alcohol is gross misconduct and is subject to a sanction of summary dismissal;

• Therefore, it was reasonable and not unfair to dismiss the claimant.

Conclusion

Sadly, the issue of intoxicant use in the workplace seems to be something that is on the HR agenda again and employers do need to understand their options to address this issue. P

Alcohol and drug dependency are likely to be disabilities for the purposes of the Employment Equality legislation and so employers must carefully navigate this complex area of employment law

When Does the ‘Clock’ Star t to Run...?

Negligence Claims involving ‘Pure’ Economic Loss

Section 11(2) of the Statute of Limitations Act 1957 (the ‘1957 Act’) states that “an action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued”.

A previous Supreme Court decision, Brandley v Deane [2017] IESC 83, which involved a negligence claim for damage to property, held that the time begins to run, for the purposes of the 1957 Act, when the damage ‘manifested’ itself, which the Court has previously considered to be when the damage becomes capable of being ‘discovered’ and ‘proved’ by a plaintiff.

However, the difficulty in determining the point at which damage has manifested itself in what are termed ‘purely’ economic cases can make the application of the 1957 Act challenging. This includes claims for professional negligence. The Supreme Court acknowledged that the application of a single coherent test in such cases can be problematic, with issues including:

• the propensity in cases of this type for a cause of action to accrue without a prospective plaintiff being aware that a loss has been suffered; and

• the fact economic loss may be wholly or partially contingent, reversible, uncertain and/or the product of fluctuations in valuations.

Background

The plaintiff in this case claimed damages arising from his purchase of a property in 2006. An engineer engaged by the vendor executed a ‘Certificate of Compliance with Planning Permission and Building Regulations’ at the time of the purchase. However, it was later discovered that the property did not, in fact, comply with the planning permission granted by the relevant local authority in 2004. The plaintiff

contended that the defendant solicitors should have conducted planning searches in advance of the purchase and should have advised on the necessity of engaging an engineer to establish compliance with planning permission.

The planning issues only came to light when a subsequent contract, entered into by the plaintiff to sell the property, was rescinded in October 2008 for this reason. The sale did not complete and although retention planning was subsequently obtained, the value of the property was by then significantly reduced on account of the economic downturn and it was ultimately repossessed by the mortgagee.

While the defendant solicitor firm submitted a defence to the claims, the question for the Supreme Court to consider was whether the claim in negligence, initiated by the plaintiff in 2014, was statute barred and in particular, whether:

(i) ‘damage’ was sustained by the plaintiff when he acquired the property in July 2006 (in which case the action would be statute barred); or

(ii) whether it occurred after the subsequent contract to sell the property was rescinded in October 2008 (meaning the action was commenced in time).

High Court and Court of Appeal Decisions

The High Court held that the claim was not statute barred on the basis that when the property was purchased in 2006 with a flawed title, it amounted to a ‘defect’ but ‘damage’ did not occur until the 2008 contract was rescinded, at which point a cause of action accrued.

The Court of Appeal overturned this decision, holding the action was statute barred as the ‘defect’ was “an immediate and significant blot on title”, so that the cause of action accrued when the plaintiff purchased the property in 2006.

The Supreme Court’s decision in Smith v Cunningham & Others [2023] IESC 13 provides helpful direction on the sometimes-difficult question as to the point from which a cause of action accrues in a claim for professional negligence. Rachel Turner, Peter Bredin and John O’Riordan assesses the implications of the Court’s ruling

Legal Principles

The Supreme Court considered a number of Irish authorities on the application of s.11(2) of the 1957 Act to negligence actions, including the Brandley decision (referred to above) and Cantrell & ors v AIB plc & ors [2020] IESC 71 (see our previous briefing here). In the Cantrell case, the Court held that “the test is when provable injury capable of attracting compensation occurred” with the need for “real actual damage which a person would consider commencing proceedings for”

The Supreme Court in these proceedings further clarified that:

• time does not r un from the point at which a plaintiff might reasonably have known of his loss or cause of action but instead at the point at which real and meaningful loss was sustained;

• the starting line for assessing this is if there is any reduction in present value; and

• the tests that have been articulated previously in the Brandley and Cantrell decisions are not to allow for a subjective or unstructured inquiry but do allow for the need for flexibility.

Supreme Court Decision

Applying the principles above, the Supreme Court found that where a solicitor is retained for the purposes of obtaining good marketable title and does not do so, the point at which a client suffers actionable loss will generally be the point at which the property is conveyed to him or her. What the client has obtained in such circumstances will usually be materially less valuable than what was entitled to be acquired and there is a right to sue to recover the difference between the value of the right contracted for and that which was obtained.

In this case, it was held that the plaintiff had suffered an actionable loss from the point the property was purchased in 2006, with the Court

identifying that the plaintiff, as owner and occupier of the property, became liable at this point to enforcement by the planning authority for the planning issues, the marketability of the property was adversely affected by the defect on title and the price paid for the property was for a house that was planning compliant but what was received was less valuable.

As such, the Supreme Court held that the plaintiff acquired something different and worth less in July 2006 to what had been contracted for and so real and actual damage, not de minimis in nature, was suffered at that point. The plaintiff could have maintained an action for damages against the defendant solicitors following completion of the purchase and the fact that it was unlikely that the plaintiff would discover this at that time did not alter the position.

Conclusion

The Supreme Court noted that while the test for the accrual of a cause of action in negligence is, in theory, the same for all forms of injury, in cases of ‘pure’ economic loss, the Court must undertake a pragmatic case by case analysis in line with the principles identified.

The Supreme Court acknowledged the difficulty with having a situation whereby damage has occurred (and with that the commencement of the ‘clock’) before a plaintiff could reasonably have become aware of loss caused by negligent performance of professional services and it was noted by Hogan J that this is an area that the Oireachtas may wish to re-consider.

However, the Supreme Court, in finding that a cause of action accrued from the point at which an action for damages could be maintained, and in particular, when a property had been conveyed to a purchaser without good marketable title, has provided increased legal certainty for professional providers and their professional indemnity insurers.

The plaintiff could have maintained an action for damages against the defendant solicitors following completion of the purchase and the fact that it was unlikely that the plaintiff would discover this at that time did not alter the position

Rachel Turner, Peter Bredin and John O’Riordan are all partners at Dillon Eustace and work in the Litigation and Dispute Resolution Team

Lavelle Partners Award Recognition

Helping Women with Addiction and Criminality

SAOL is an integrated programme of education, rehabilitation, advocacy and childcare. The SAOL Project’s on-going commitment to the women, children and community members of the North Inner City continues to develop, responding to the changing needs of the women who participate in our project with creativity and commitment.

BRIO (Building Recovery Inwards and Outwards) is the Probation-funded programme, working with women who have both addiction and criminality in their story. We train women to become peer workers with others in similar situations so as to reduce recidivism and strengthen recovery.

BRIO is a proven resource for women presenting at any stage of addiction towards mitigation. Many women first present to us seeking to address pending charges and progress on to gain stability, less recidivism and often full desistance in their lives. SAOL Project has a wide variety of opportunities for women to engage including informal lunches Tues/Weds/Thurs 12-2pm and brunch service Sat & Sun 12-2pm. We have a Welcome Group for new women every Wednesday at 11am. We also have specialist programmes for health advocacy, Domestic Violence and Dual Diagnosis and groups for Community Employment, Art, Drama and Yoga.

BRIO women have undertaken a wide range of outwards peer work including contributing to IPRT research, delivering

training addressing substance misuse for women at Drogheda’s Red Door Project, and advocating for policy to the Oireachtas Committee on Penal Reform and at Stormont, the Northern Ireland Assembly. BRIO is a recognised option for women who engage with the Drugs Court. We provide letters in relation to engagement for court or liaise with Probation Services.

We are happy to follow up with women interested in engaging with our service once they have consented to us having their contact details and even more delighted to welcome professionals and clients to visit us in Amiens Street.

Grace Costigan, BRIO Coordinator Contact: brio@saolproject.ie

or 01 8553391/93

Lavelle Partners’ Medical Negligence Team, headed by Partner Avril Scally, received the Medical Negligence Team of the Year 2023 award for the second year running at this year’s Dye & Durham Irish Law Awards.

New Circuit Court Judge

The Parchment sends its warm congratulations to Jennifer O’Brien who has been nominated as a Judge of the Circuit Court by the Government. Jennifer has always been a great supporter of the DSBA and served on the DSBA Family Law Committee for many years.

Jennifer established Jennifer O’Brien Solicitors at Irish Family Law Chambers having previously headed up the family law

team at Mason Hayes & Curran (incorporating Arthur O’Hagan), where she was a partner. She commenced her career at McCann FitzGerald, where she worked on the family law team for several years.

Jennifer is a well-known Irish family lawyer with over two decades of experience in separation, divorce & non-marital matters. We wish her all the best in her new role.

First 100 Women on the Roll of Solicitors Honoured

This year marks the centenary of the first women admitted to the Roll of Solicitors in Ireland. The Law Society are exhibiting photos of as many of the woman as possible in Blackhall Place.

However, the Law Society is missing a photograph of a good number of these pioneering women and there is a call out to the profession for assistance in collecting some of these outstanding photos.

At present, the Law Society does not have a photograph of the following first 100 women on the Roll of Solicitors: Dorothea Mary Brown (Cork); Maureen McDowell (Dublin); Annie J. Smyth (Monaghan); Adelaide M. Quin (Louth); Mary Emily Smith (Dublin); Doreen Sarah Gillespie (Monaghan); Gladys Lallah Tallan (Louth); Margaret Mary Gibbons (Offaly); Aine Mary Reid (Dublin); Kathleen Ryan (Tipperary); Mary Rossario Gleeson (Tipperary); Fionnguala O’Beirn (Galway); Mary Lohan (Galway); Maureen A. Hawthorne (Dublin);

Pauline Eugenie Laverty (Longford); Mary J. O’Neill (Dublin); Margaret M. Dunne (Meath); Mary T. McCarroll (Kildare); Maire O’Neill (Dublin); Margaret Carey (Kerry); Una Mary Treacy (Limerick); Moira Flynn (Leitrim); Mary Frances O’Connor (Cork); Liadain MacErlean (Dublin); Dora C.M. Corrigan (Dublin); Elizabeth Kettle (Dublin); Moira O’Sullivan (Galway); Maureen French (Wexford); Mary Geraldine O’Leary (Kildare); Brigid Hogan (Galway); Maureen Hannon (Westmeath); Adeline G.J. Hyland (Dublin); Constance Mary Campbell (Mayo); Eileen M. Forde (Roscommon); Mary Brigid Cahalan (Dublin); Mary Winifred Eleanor Thornton (Mayo); Mary Josephine MacClancy (Clare); Kathleen Mary O’Kane (Dublin); Joan N. Macauley (Kerry); Mary Joseph Brennan (Kerry); Eileen O’Reilly (Galway); Marguerite S. Meagher (Cork); Cecilia Hurley (Dublin); Meadbh Ni Uadhaigh (Dublin); Anna Elizabeth Egan (Galway); Mary O’Reilly

IMPORTANT COURT UPDATES

Due to feedback from the profession, on a trial basis which commenced in early July, there will be a walk-in system available in the Central Office. This is a system which will not require an appointment. The Central Office has advised that there are 206 appointments per week which are no shows where the people booking the appointments do not cancel them. This represents 41 appointments per day which are wasted. If the walk-in desk is to be a success, practitioners must remember to cancel appointments where necessary.

List Room

The list room has a full complement of staff and is open Monday to Friday from 10:00 AM to 4:30 PM. It is closed from 1:00 to 2:00 PM. The list room does not require appointments. Practitioners knock on the door and are allowed in to file papers. If there’s an urgent matter during lunchtime, the Courts Service have indicated that the person or persons on duty at the Central Office next door will take the papers.

Court of Appeal

From the 7th July 2023, the Court of Appeal

Huggard (Cork); Mary Teresa Barry (Dublin); Carmel Early (Dublin); Mary Monica McFadden (Donegal); Blathnaigh Ui Uadhaigh (Dublin); Margaret H. Walsh (Dublin); Mary Teresa O’Connor (Dublin); Pauline O’Donovan (Cork); Mary Catherine Hughes (Dublin); Ellen Florence Mary Beatty (Dublin); Margaret E. Hayes (Limerick) and Sheila B. McCrann (Roscommon).

The exhibition of photographs and details of the First 100 Women on the Roll of Solicitors will be a permanent exhibition at the Law Society and a version of this exhibition will also be placed in the Solicitors’ Building of the Four Courts. In addition, the exhibition will be included as part of the first Opening of the Legal Year Celebrations to be held on 3rd October 2023 at the Four Courts.

If you can assist on any of the missing photographs, please contact: memberservices@LawSociety.ie.

office will operate a system on an appointment basis with one desk specifically reserved for walk-ins.

Judgments

The Central Office has advised that judgments are now taking three weeks to process.

Circuit and High Court Rules

After some technological glitches, the posting of Circuit and High Court rules will now be updated on a regular basis on courts.ie.

Barra O Cochlain, DSBA Litigation Committee

STAMP OFFICE UPDATE

Following a trial period of the appointments booking service in the stamp office having taking feedback on board, since the 6th of June 2023 some changes came into effect as follows:

1. Extended opening hours from 9:30 AM to 3:30 PM. There will be no closure during lunchtime.

2. There will be a walk-in service from 9:30 AM to 1:00 PM

3. Appointments are required from 1:15 PM to 3:15 PM

For urgent matters, there is no changeplease attend the relevant counter and stamp office staff will accommodate you.

PENSION ADJUSTMENT ORDERS RULED IN CHAMBERS

The Following is a checklist of documents:

1. Ex Parte Docket;

2. Notice to Trustees;

3. Affidavit to Trustees;

4. Pension Adjustment Order x 4 copies;

5. Original confirmation letter from Trustees;

6. Consent letter from other side to rule in chambers.

The process for ruling pensions in chambers (without the need for parties to attend court) has proven a huge success for both the family law office and solicitors by ensuring matters are dealt with efficiently and without the need to attend court which further allows the office more capacity for Court lists that do require a court appearance.

The family law Circuit Court office will arrange to have pension adjustment orders ruled in judges’ chambers upon the filing of the

documentation listed above. I had a meeting with the office recently and they confirmed that the list which they send to solicitors is exhaustive. One of the difficulties is obtaining consent from lay litigants, as their consent is required before an order can be ruled in chambers.

The alternative is to bring an Ex Parte Motion. The Circuit Court will provide a date for the matter to be ruled in those circumstances. The Ex Parte Motion docket suffices for this purpose. A pension adjustment order can still be ruled by coming into court on an Ex Parte Docket with all the necessary documents above where a physical court date will be assigned.

Unfortunately, under the Circuit Court rules it is mandatory to provide an affidavit of service of the notice to trustees. This is

UPDATE – HIGH COURT MOTION PAPERS

In the High Court when lodging papers from the 17th of April 2023 for motions in the common law motions list, motion papers must be lodged in advance of the hearing. A paginated and indexed booklet of motion papers must be lodged in the list room which is beside the Central Office by no later than 4:30 PM on the Thursday preceding the Monday. Practitioners will note a previous practice note in the Parchment in relation to the list room being closed at certain times.

despite the fact that a letter from the pension provider confirms receipt of the notice to trustees which is part of the paperwork. Therefore, always serve your notice to trustees by registered post at the earliest opportunity.

I have had several cases where the papers were returned to me a number of times. I indicated to the office that when a query is responded to, sometimes a different query is then raised. I asked if it was possible if all of the issues could be addressed when the papers are sent back the first time. I am assured the office will do its best to do that.

I asked the office if there were difficulties at their end and they indicated that the number one issue is practitioners seeking to have a pension adjustment order ruled at the last minute where there is an issue pertaining to death in service. These orders must be ruled within a year of the divorce or judicial separation. This can lead to last-minute applications which are always facilitated where possible. We should endeavour to have these ruled as soon as possible following the divorce decree.

Please note also that any affidavits sworn by lay litigants are required to have the solicitor swearing the document’s stamp, before they will be accepted.

In the event of difficulty with any application, my advice is to go into the office when it opens at 9:30 AM where the office will be only too pleased to assist and there is rarely a queue. The office is open from 9:30 until 3:30 without any lunch break.

The office asked me to convey their thanks to all the solicitors for working with them in this matter and that your assistance is greatly appreciated.

Barra O Cochlain, DSBA Litigation Committee

Barra O Cochlain, DSBA Litigation Committee

Barra O Cochlain, DSBA Litigation Committee

Summer

DSBA Property Seminar

The DSBA Property Committee hosted a seminar on the 24th April 2023 on various aspects of property law, including the First Home Scheme, Help to Buy Scheme, updates on residential property taxes and the new Vacant Homes Tax, and Residential Tenancies issues.

The speakers at the Seminar included Una Cassidy BL, Jennifer Ring (ByrneWallace), Deidre Fahy (Revenue Commissioners) and Michael Broderick (CEO of First Home Scheme).

Photography: Owen O’Connor

Left: Una Cassidy, Jennifer Ring and Áine Gleeson

Far left: Paul Ryan and Ben O’Rafferty

Left: Christina Seitz, Andreena Corrigan and Ashley Lewis

Far left: Kay Cogan and John Reid

Right: Deirdre Fahy, Michael Broderick and Áine Gleeson

Right: Tom Honan, Kevin Neary and Denise Dockery

Far right: Lesley Dempsey, Juliana Mullin and Niamh Carragher

DSBA Golf Outing

The DSBA Golf Society enjoyed an outing at Killeen Castle Golf Resort on the 20th June 2023. The Society is open to all members of the DSBA and their guests and our outings provide a fun and relaxing way of meeting with colleagues outside of the work environment.

If you would like to join the DSBA Golf Society and enjoy some outings later in the year, contact Maura Smith at the DSBA Office on 01 6706 089.

Left: Eamonn Shannon

Left: Hugh O’Neill and Pat Coady Far left: David Ryan and Anthony Lowry

Left: Eamonn Shannon, Michael Knightly, Aaron McKenna and Ciaran O’Mara

Right: Sean Greene, Peter Newman and Trevor Dolan Far right: Barry O’Neill celebrates in the rain

Photography: Owen O’Connor

Left: Fiona Duffy, Colleen O’Neill and Mary McAlinden

Far left: Sean Greene lines up for his shot

Left: Barry O’Neill, Paul McKnight and David Tansey

Right: James Hayes and Stephen Fleming

The Subtle and Insidious Slide

The French are great for a bon mot One of this column’s favourites is plus ca change, plus c’est la meme chose Our first column under this name was written some 21 years ago, when insurance premiums were too high and the cost of claims were getting the blame.

Sound familiar? It was headlined “do you feel dirty” and lamented that lawyers as usual were taking the brunt of insurance greed.

It will ever be thus and no amount of complaining will change that. But there is a difference this time around. Whereas, in 2002, just before the introduction of PIAB, the injury victim was considered an innocent party, the focus has now shifted to victimblaming. And denying access to justice at every juncture.

We have already written about how the swingeing reductions in awards will make finding a solicitor to take on lower value claims more difficult and how the relentless insurance propaganda campaign has shamed genuine injury victims against claiming for fear of being tarred with the fraud brush.

And the hits just keep on coming. The latest announcement by the PIAB that a medical report will be required before a claim can be registered and the statute can be stopped as well as the stipulation that a signature will be needed on the claim form is at best a retrograde step and worst an assault

on the injured party’s constitutional rights.

The PIAB blame the underlying legislation for this requirement and no doubt this is the advice they have got. Whether they or the legislature are responsible for this latest attack on injury victims, there can be little doubt that there will be a queue outside the High Court to take the first challenge.

The courts have always taken a dim view of any provision that limits access to the courts. The requirement to obtain a medical report, in particular, creates an impediment to this and it is hard to think of any other analogous stipulation. Even in medical negligence claims, as a protective summons can be issued to stop the statute.

As an application to the PIAB is an absolute pre-requisite to the issue of proceedings, it is clear that this path must be as free from unnecessary obstacles as possible.

Those who practise in the area will attest to the delays, costs and difficulties in obtaining medical reports at the best of times. However, if the statute problem is hanging over a claimant, this becomes a sword of Damocles.

It is massively simplistic to say, as PIAB do, that doctors must provide a report or at least notes under Data Protection legislation. This assumes that they obey requests, which are frequently ignored no matter what efforts are made by a solicitor.

Of course, the injury victim may not have a solicitor thus creating a further hurdle and perhaps vacuum of knowledge about the absolute requirements of the Statute of Limitations.

The reason expressed for this change in policy is that it is an anti-fraud measure. This is now the answer for all restrictions on citizens’ constitutional rights to compensation for injury. The cruel irony of this provision being that the most reluctant claimants will be most seriously affected. It is they who decide to make a claim two months before the two years elapses because they have no choice such is the pain they are living with.

None of this should come as a surprise, just part of the ongoing disappointment.

It is part of a slow but firm move towards the right in Ireland. It’s not as dramatic or far-reaching as the nations either side of us but it is subtle and insidious.

The rights of the consumer must take their place behind big business. The insurance industry continues to ride roughshod over common sense and justice.

The last bastion of defence is our judiciary who will not be cowed. Que cela dure longtemps.

Stuart Gilhooly SC

Whether they or the legislature are responsible for this latest attack on injury victims, there can be little doubt that there will be a queue outside the High Court to take the first challenge

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