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Winter 2018 dsba.ie

From the Editor

elcome to the Christmas edition of the Parchment. We have a magazine stuﬀed with articles from a range of areas in practice for your interest. The DSBA has been busy with recent submissions to the Legal Services Regulatory Authority. Robert Ryan sets out the DSBA submission on Legal Education in Ireland on page 28. We also proﬁle the DSBA submission on the Barrister’s Code of Practice on page 18. It is a privilege to feature the CEO of the Legal Services Regulatory Authority Brian Doherty in his interview with Aine Hynes in this edition. The Authority is gaining momentum and we wish Brian and his new team every success. Sonya Dixon’s article highlights the issue of legal representation for rape victims in criminal trials. She assesses what happens in other countries and despite the need for a balancing act between the rights of victims and the rights of an accused, she says that there is room for improving the process for victims. We shine the spotlight on Blackrock practitioner

Ken Byrne in an extended interview with Kevin O’Higgins in this edition. Although Ken has almost forty years experience in practice, it is his other life experiences that set him apart as not your average solicitor. Julie Doyle’s closing argument will remind you of the heady days of the Celtic Tiger and the conveyancying short cuts that got the profession into trouble. As the Irish economy is now in ﬁfth gear, she warns that history could repeat itself if we are not careful. Can I wish you and your loved ones a peaceful and relaxing Christmas and here’s to a successful and healthy 2019 for one and all.

John Geary jvgeary@gmail.com

DSBA COUNCIL 2018/2019

GREG RYAN DSBA President

TONY O’SULLIVAN DSBA Vice President

DIEGO GALLAGHER Honorary Secretary

JOSEPH O’MALLEY Treasurer

SUSAN MARTIN Programmes Director

LAURA HORAN

NIALL CAWLEY

PAUL RYAN

MATTHEW KENNY

JOAN DORAN

KILLIAN O’REILLY

RONAN McLOUGHLIN

CIARA O’KENNEDY

GERARD O’CONNELL

AVRIL MANGAN

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

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

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time of going to press. Views expressed are not necessarily those of the DSBA or the publisher. No part of this publication may be reproduced in any form without prior written permission from the publishers.

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Winter 2018

Contents 6

20 minutes with.... Brian Doherty Áine Hynes meets the new chief executive of the LSRA

Trust Me, I’m a Solicitor

Legal Representation for Rape Victims

James Meighan assesses how the English courts have recently considered dishonesty and lack of integrity in a number of cases

DSBA Submissions to the Legal Services Regulatory Authority A review of the submission to the LSRA on the Barrister’s Code

A Breach of GDPR

No Power to Restrain

Does Sorry Have to be the Hardest Word?

Legal Education – Dawn of a new era?

Sarah Reynolds identifies the consequences of a breach of the General Data Protection Regulation (EU) 2016/679

Stephen McLoughlin looks at a recent Court of Appeal ruling where a hospital had no lawful power to restrain a patient

Tom Hayes highlights lessons to be learned from the CervicalCheck scandal

Robert Ryan provides an update on the review of legal education and training in Ireland

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

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page 6

20 MINUTES WITH... BRIAN DOHERTY

Sonya Dixon addresses the subject of representation for victims of rape

I still remember driving through the Northern Ireland countryside with a car boot full of seized police ﬁrearms with a police escort for security and thinking how much my life had changed since joining the Ombudsman

Winter 2018 dsba.ie

Contents

REGULAR FEATURES 01 04 52 56 64

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

26 30

New Corruption Offences

The Life of Byrne

Workplace Disciplinary Process

Unfair Dismissal while on Probation

Eoin Mac Aodha examines the Criminal Justice (Corruption Offences) Act 2018

Kevin O’Higgins interviews the accomplished and fascinating Blackrock solicitor Ken Byrne

Donal Hamilton evaluates the implications of the decision in Irish Rail v Barry McKelvey (2018)

A recent Labour Court recommendation serves as a useful reminder to employers

Striking a Balance – Workplace Wellness Monica Haughey advises that solicitor practices and firms should be mindful of staff welfare

Restoring the Status Quo

Adverse Possession Vigilance the Key

Pamela O’Neill and Norman Fitzgerald consider how a recent UK ruling may impact Irish law

Amy Bradley cautions that vigilance is needed to avoid claims for adverse possession of land

The View Julie Doyle provides some sobering insight into avoiding the mistakes of Christmas past

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Message from the President

The Coming Year

was honoured to be elected President of the Dublin Solicitors’ Bar Association at our AGM in October and might I thank you, the members of the DSBA for your support over the last number of years in getting to this position. I would like to start my ﬁrst presidential address by welcoming you to this, the 2018 winter edition of the Parchment magazine. The Parchment epitomises the spirit of the DSBA and is an excellent and professional publication aimed at and relevant to the members produced by an extraordinary amount of very hard work by the volunteers who write the articles, the Parchment committee, and of course our tireless editor, John Geary. The arrival of the winter edition of the Parchment is the beginning of the end of the calendar year, the run in to Christmas and the end of the year holiday season and it gives us an opportunity to re ect on what was achieved during the year and indeed to look forward to setting goals for the coming year. It was a pleasure to serve as Robert Ryan’s vice president and I would like to congratulate him on his achievements throughout the year. The membership has grown, the costs remain steady, and he hosted many successful events including the managing partners’ lunch, the Law Book Awards, and the superb conference in Venice attended by 120 DSBA members. There will be a number of goals to the presidency this year, but primarily among them is the continued enhancement and production of our precedents. The DSBA precedents are respected by the entire profession and are used across the country. There are a number of new precedents in the pipeline which I hope to have published this year, and further information will follow on this, early in the New Year. I would also like to congratulate Patrick Dorgan on his promotion to President of the Law Society. The DSBA and the Law Society have always had an excellent working relationship and I certainly hope to maintain that. Speaking of the Law Society, I would also li e to commend James Cahill’s work on fair procedures for colleagues. He has commissioned a draft statutory instrument from Barry Sheehan Solicitor in Cor to ensure a fair system of procedures for colleagues who have complaints made

4 the Parchment

against them to the Law Society. The objective of the statutory instrument is to switch the burden of proof on solicitors which currently is to disprove allegations, and also to apply the higher standard of proof against solicitors as is the practice of other regulatory bodies. While I make no comment on the statutory instrument itself, I am delighted to see it in the public forum for discussion and debate, which can only be a good thing. We also ran a number of social events in Harold’s Cross, hibsborough and in the city for solicitors last year and I intend running those again, and I hope to meet many practitioners at those. It was a pleasure to meet so many colleagues at those events, and looking around at the relaxed faces, I remember that this was what being a solicitor used to be like, collegiality and bon homie to the fore. I also have to say a huge thanks to the committees and the incredible work that they have put in throughout the last year and I look forward to working with them in the future. The DSBA would not be what

it is without all of the volunteer work so sel essly put forward by the committees which makes this organisation as great as it is. The resident, the Council, the committees and our team at head o ce led by Maura with Anna and Elaine will all be doing their best in 2019 to assist all our colleagues and to make sure that Government and its various essential parts don’t forget the clients that we represent. inally, as always at Christmas we remember those friends and colleagues who have left us but are not forgotten. We also cannot forget those who need a helping hand and I am delighted to note again at the AGM the contribution of the DSBA to the Solicitors’ Benevolent Society. As Christmas approaches, we will also be making our regular donation to the Lord ayor’s Coal und. erry Christmas to one and all, than you for your support in 2018 and we look forward to seeing you at our coming DSBA events in 2019. Greg Ryan, DSBA President

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Winter 2018 dsba.ie In conversation with Áine Hynes of St John Solicitors

20 Minutes With...

Leading the Way The new CEO of the Legal Services egulatory Authority LS A , Brian Doherty, tal s to former DSBA resident, ine Hynes. The former Belfast barrister who wor ed in civilian oversight of policing for years before ta ing up his current role, tal s candidly about his life and career

When did you qualify as a barrister? I ualiﬁed as a barrister in Belfast in .I practised for a short while and then oined the O ce of the olice Ombudsman for orthern Ireland as an investigator when it was ust getting set up in 2 . I left there in 2 to go to the arda S och na Ombudsman Commission, which was also ust getting set up, as a senior investigating o cer and then in 2 , I went bac to the olice Ombudsman as their director of investigations. I was appointed chief executive o cer of the Legal Services egulatory Authority in September 2 . If you had not become a lawyer what would you have done? I have not thought of myself as a lawyer for many years as my role has been leading teams of investigators and carrying out investigations. In fact, under the Legal Services egulation Act 2 I’d be considered a lay person. Having said that I have very few regrets in my career and I have found that my legal training has given me a solid s ills base to tac le most challenges. All in all I’m pretty happy where I am. Can you tell us about your career, moving from a practising barrister to the offices of the Police Ombudsman? Joining the olice Ombudsman ust as it was getting started was an incredible experience and one for which I have very fond memories. The concept of independent civilian oversight of policing was so new and the ﬁrst inta e of investigators were from a wide range of bac grounds and wal s of life. All of the investigators went through an intensive training course including training in investigative techniques at the Met

olice detective training college in Hendon. So, basically, I went from appearing on behalf of clients in court to being trained in investigative interviewing and forensic techni ues in the space of a few wee s. I remember within the first months with the olice Ombudsman being involved in an investigation in a rural area where we had to seize the firearms of a number of police o cers due to an allegation that they had been used to assault a prisoner. We had to get an armed escort to transport the firearms to the forensic lab late at night. I still remember driving through the orthern Ireland countryside with a car boot full of seized police firearms and with a police escort for security and thin ing how much my life had changed since oining the Ombudsman. Have you any funny anecdotes from your time working in policing oversight? Too many to mention. Although the wor itself was treated very seriously, there is a real camaraderie that builds up amongst investigators and often humour is used as a way of managing the pressure that can arise in some situations. One festive memory involves a colleague who was re uired to investigate an incident where a Christmas reveller in Belfast who was dressed as Santa Claus alleged he had been seriously assaulted by the police. In order to preserve any potential forensic evidence, my colleague ended up seizing the complainant’s clothes. The exhibit list was a thing of o ce legend as it went one fa e beard, white , one red hat , one blac belt with gold buc le etc. The whole Santa outfit was on a shelf in the exhibits store for the length of the

investigation. As far as I now, however, no one ever seized an exhibit from the Easter bunny. What was your most memorable moment in your career? ot uite a moment but I was fortunate enough to be sent to train with the LA D Internal Affairs Department for three wee s when I was with the olice Ombudsman. The whole experience was incredible. I was sent out with police patrols in areas suffering the effects of gang crime, I was involved in internal affairs surveillance operations and with the covert integrity testing of o cers. The Internal Affairs nit was extremely well trained and had incredible resources at its disposal. It was unforgettable and I learned a huge amount. There were many moments in those three wee s that were almost surreal and are etched on my memory forever. Who has had the most influence on your career and why? There have been many people who have in uenced my career and I am of the view that you can learn something from most people. The ma or in uences however, all taught me something about leadership. The well nown Belfast publican Willie Jac whose company owns most of the bars in the Cathedral uarter including the world famous Du e of or , was my boss for a number of years when I was a student. He taught me more about leadership and hard wor than I have ever been able to than him for. Wor ing with Baroness uala O’Loan was a master class in independence, commitment and resilience. And the former chief executive of the olice Ombudsman, Adrian cAllister who I wor ed under as the Parchment 7

Photography: Bryan Meade

Joining the olice Ombudsman ust as it was getting started was an incredible experience and one for which I have very fond memories. The concept of independent civilian oversight of policing was so new and the first inta e of investigators were from a wide range of bac grounds and wal s of life director of investigations was both a mentor and a friend. It was Adrian that first put the idea of wor ing toward becoming a chief executive o cer in my head and persuaded me that the s ills I had ac uired in my investigative career could be put to use elsewhere. Wor ing with the LS A brings its own set of new challenges and demands and I am grateful to wor with the Authority members who are all greatly experienced in their respective fields and with Dr Don Thornhill who is a s illed, experienced and respected chairperson. Briefly outline a typical day in the life of the chief executive of the LSRA So far no day could be described as typical.

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We are trying to achieve so much and on so many fronts, whether it is establishing the roll of practising barristers or the introduction of the new legal service delivery models. There are a lot of challenges and every day is different. The wor day starts most mornings at half seven and there are a few early birds on the LS A team so the o ce starts to fill up around eight. There is a lot of engagement re uired with our sta eholders so I am fre uently out of the o ce at meetings. As you can imagine in start up mode there is also a lot of drafting going on, so there is always a procedure or policy or a new draft of a regulation to review. The days are long but we are eeping the momentum going and starting to see some real results for our efforts. We recruited some new legal advisors recently and it’s been great to see the team start to expand and really ta e shape. Establishing the roll of practising barristers and issuing the first draft regulations for consultation gives a real sense that we are building something concrete. The team is great and there’s a fantastic atmosphere in the o ce and I’m proud and delighted to be wor ing with them. What would be your dream holiday? y wife and I have two young children so all our holidays are geared towards them at the moment. I have a brother who lives in Botswana. He’s been out there for about 2 years now and I’m loo ing forward to the girls being old enough to en oy a bit of an African adventure. ow, without the ids y wife too me to ew or to celebrate my th birthday and I’m selfishly loo ing forward to she and I getting to return to ew or at some point in the future and finding a different restaurant to en oy every night. aybe I’ll drop a few hints for my th. Tell us something nobody knows about you? I play the guitar and have amassed uite a collection over the years. Our attic has been converted for use as a music room and there are a couple of digital pianos, some amps and probably too many guitars. They all get played and are all different. It’s a pretty

small space but I can get lost in it for hours. I used to play guitar in a mid life crisis cover band made up of middle aged men and my sister in law. We played fundraising gigs for various charities and raised money primarily for ileac in and the Oesophageal Cancer und for Ireland. During my time with the arda S och na Ombudsman Commission we lost some dear friends and colleagues to oesophageal cancer including the director of investigations, aul Buschini who was another huge in uence on my career. I left the band in 2 when I went bac to wor in Belfast but they are still playing gigs and raising money. We were called rounds for Divorce. y wife came up with the name. Any advice for those entering the solicitors’ profession in 2019? I’ve been struc over the past year by the different initiatives promoting the welfare of legal practitioners. I’d encourage all solicitors entering the profession to be mindful of their own welfare and to see assistance when they need to and to do it early. There is no point in not being open to help and advice when you need it and there is no good to be had in hiding from a problem. Any thoughts you have about your interaction with the legal profession and your approach to the role? The LS A has a statutory responsibility to be independent in the performance of its functions. That means that we will be independent in our evidence gathering, our decision ma ing and in our reporting of those decisions. Independence does not mean however, that you operate in isolation and we have committed to being transparent and accountable in our dealings with both consumers and members of the legal profession. I thin we are off to a good start on that front and have built up relationships with ey sta eholders li e the DSBA, who understand and appreciate our independence. What’s the biggest challenge facing the LSRA in 2019? There are a number of ey elements of the Act which will be commencing in 2 . We are wor ing towards the launch of the new legal service delivery models in early 2 which means that we will be introducing the framewor to allow legal partnerships and limited liability partnerships. We also intend to commence the complaints function under the Act mid year. The LS A has a small team at present but this will expand as the year goes on and we hope to be recruiting to some ey positions early in 2 . So there are many challenges on the horizon but I’m confident that the team we have already in place are more than capable of delivering on the wide remit of the Act. It’s an exciting and interesting time to be wor ing in legal regulation. P

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Trust Me, I’m a Solicitor James Meighan assesses how the English courts have recently considered dishonesty and lack of integrity in a number of cases and how the Irish courts might deal with these issues

n England the law and the manner in which the court considers dishonesty has changed from a hybrid subjective and objective test to a purely objective test following the judgment of the Supreme Court in Ivey .v. Genting Casinos 2 KSC . In the Ivey case, the issue of dishonesty arose in a civil action involving a casino and gambler and the law as enunciated in this case, as it relates to dishonesty and lack of integrity has been adopted in the context of investigations into solicitor’s behaviour and alleged breach of the Legal Services egulations.

Wingate & Anor .v. The Solicitors Regulation Authority In the case of Wingate & Anor .v. The Solicitors Regulation Authority 2 8 EWCA Civ , the Court of Appeal considered two appeals from the High Court. The ﬁrst case concerned a manager of a law ﬁrm, David Wingate who accepted a , loan from the Axion und. The High Court had remitted the case bac to the Solicitors’ Disciplinary Tribunal after holding that the funding agreement between Wingate and the fund was a ‘complete sham’ and the solicitor had acted without integrity.

Malins .v. The Solicitors Regulation Authority In the second case, Malins .v. The Solicitors Regulation Authority 2 EWHC 8 Admin , John alins, a construction solicitor appealed a judgment of the High Court ordering a retrial of Mr Malins who was found to have backdated an insurance document which he sent to another ﬁrm. r Justice ostyn, the udge in the High Court matter, stated that dishonesty and lack 12 the Parchment

of integrity were virtually impossible to understand and this led to considerable confusion when complaints of this nature came before the Solicitors’ Disciplinary Tribunal. The court went on to state that there was no distinction between the concepts of honesty and integrity. alins succeeded in his appeal. Lord Justice Jac son held that the High Court judge erred in holding that integrity in the Legal Services Regulations had the same meaning as honesty. The court said that while solicitors were not required to be “paragons of virtue”, honesty was “a basic moral quality which is expected of all members of society” while integrity was “a useful shorthand to express the higher standards which society expects from professional persons and which the professions expect from their own members”. Therefore, dishonesty was simply an “aggravating feature” rather than a discrete oﬀence under the principles.

Ivey .v. Genting Casinos In the recent decision of the United Kingdom Supreme Court in Ivey .v. Genting Casinos 2 KSC , the court overturned the previous test for criminal dishonesty set out in the case of R .v. Ghosh 82 EWCA Crim 2. The test for dishonesty as enunciated in Ghosh was a hybrid of both the objective and subjective test and called for the ury to apply a two part test as follows: . “Was what was done dishonest according to the ordinary standards of reasonable and honest people? 2. Did the accused realise that reasonable and honest people would regard what he did as dishonest?” If the answer to both questions is yes, then a jury or magistrate should conclude that the accused had acted dishonestly.

Winter 2018 dsba.ie James Meighan is a solicitor at Eugene F. Collins

The Ivey case concerned the plaintiﬀ who attended the defendant’s casino and employed the use of a card technique called “edge-sorting” whilst gambling. His method of play was undoubtedly ingenious. He had played an entire shoe the name for the container that holds the playing cards in the game of six packs of cards , but had as ed the croupier to replace the cards in a particular order high value cards one way and low value cards another way, bac into the shoe. He then played the shoe completely again, knowing the order of the cards when they were subsequently dealt face down . The techni ue gave r Ivey an advantage and he won . m. The defendant refused to pay r Ivey his winnings and he issued civil proceedings for the recovery of the monies. In its judgment, the Supreme Court noted that the jurisprudence for civil dishonesty in the United Kingdom had been settled by Royal Brunei Airlines .v. Tan 2 AC 8 and Barlow Clowes Limited .v. Eurotrust 2 K C and the test is as follows “If by ordinary standards a defendant’s mental state would be characterised as dishonest, it is irrelevant that the defendant judges by different standards”. The Supreme Court adopted a new test for criminal dishonesty which is in line with the test for civil dishonesty an ob ective test was the accused dishonest by the standards of an ordinary, reasonable individual having the same nowledge as the accused Whether or not the accused viewed their actions as dishonest by their own standards is not relevant. The Supreme Court essentially struck down the second subjective element of the test in Ghosh ﬁnding in favour of a wholly ob ective test. In applying an objective test, the court considers the behaviour of the reasonable or standard man or woman if he or she were in the same situation and behaved in the same manner as the supposed culprit, would such a person’s behaviour be considered dishonest, such a test does not consider the characteristics of the accused sub ective test , only the characteristics of the reasonable person, with standard characteristics, age etc. While the Ivey case did not concern regulated professionals, the courts in Wingate and Malins have accepted that the objective test for dishonesty can be applied to regulated professional. Once the charge of dishonesty has been raised, the Tribunal internal to

Regulation

the professional body and the courts must udge the professional’s behaviour as against the objective test annunciated in Ivey. In addition, it is the criminal standard of beyond all reasonable doubt which is to be applied in all regulatory actions.

The Law on Dishonesty in Ireland The law in this urisdiction on dishonesty and how it relates to regulatory law is unclear. However Section 2 of the Criminal Justice (Theft and Fraud Offences) Act 2001 provides the definition for dishonesty as “without a claim of right made in good faith” for matters purely in the criminal sphere. In Director of Public Prosecution .v. Bowe and Casey 2 IECA 2 , the Irish Court of Appeal considered an appeal against a conviction for conspiracy to defraud. The court had regard to the udgment of the English Court of Appeal in Ghosh. The Irish Court of Appeal re ected the udgment in Ghosh and the two part test, and instead adopted an ob ective test for the offence of conspiracy. While this case may indicate the direction of the Irish courts, it remains to be seen if this objective test will be applied when determining the issue of dishonesty in this jurisdiction, in line with the judgment in Ivey. On the issue of integrity in the Irish jurisdiction, in the case of Director of Corporate Enforcement .v. Byrne 2 2 I.L. . . 28, the Supreme Court considered an appeal to an order of the High Court disqualifying a director pursuant to the Companies Acts. In the udgment the court said “The conduct necessary to justify a disqualification order must be manifestly more blameworthy than merely failing to exercise an appropriate degree of responsibility. Commercial misjudgement is not sufficient. The conduct complained of must display a lack of commercial probity although in an extreme case of gross negligence or total incompetence, disqualification could be appropriate. Probity is used in the sense of dishonesty, lack of integrity.” In Bowe and Casey, the Irish courts have moved towards an ob ective test for dishonesty. However, it is still unclear if the Irish courts will adopt the position taken by the English court in Wingate and Ivey which would offer certainty to disciplinary tribunals and the courts alike when called upon to adjudicate on claims of dishonesty in statutory regulatory matters. P

The Supreme Court adopted a new test for criminal dishonesty which is in line with the test for civil dishonesty an objective test: was the accused dishonest by the standards of an ordinary, reasonable individual

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Legal Representation for Rape Victims The sub ect of representation for victims of rape has come to the fore in recent months with the sub ect being examined carefully in Ireland and in orthern Ireland. Sonya Dixon, BL loo s at what we can learn from other urisdictions

his is an area which causes di culties in many countries. Aﬀording rights of audience to a victim can potentially interfere with the right to a fair trial of an accused. It is almost always a useful exercise to loo at the practice in other urisdictions when an area of the law is under review. In this article I loo at some practices in other urisdictions to ascertain what can be learned from them and how we might improve our own system. Historically the evidence of complainants in rape trials was treated with great suspicion and a very robust testing of evidence was even encouraged by udges. This would include uestions relating to previous sexual history. There are now statutory provisions in place to limit this type of uestioning on cross examination and applications to allow such uestioning are made to the trial udge in the absence of the ury. However these applications are regularly acceded to. Therefore there is always the potential for the complainant’s credibility to be undermined in the eyes of the ury. In civil law urisdictions in Europe the in uisitorial system is prevalent. This is more amenable to a situation where the victim is actually a party to the proceedings. In the common law adversarial system victims are no more than a witness. Separate legal representation is better suited to the in uisitorial systems in the civil law urisdictions found in Europe. In rance and Belgium for example, there is extensive legal representation for the victim and they have the status of a partie civil . In ermany they also have extensive rights and can cross examine the defendant

14 the Parchment

as a second prosecutor. In Sweden there is also a right to legal representation for the victim who can be a party to the trial alongside the prosecutor. In Spain a private prosecution can be brought on behalf of the victim, parallel to a state prosecution. Separate legal representation is less suited to the adversarial system and common law countries do not generally have separate legal representation for victims of sexual offences. The K and orthern Ireland do not presently afford victims such representation. orthumberland is piloting Sexual iolence Complaints Advocates S CAs who will silently remain in court and ensure that applications to cross examine a rape victim on previous sexual history are conducted properly. In orthern Ireland a preliminary review of how the law deals with serious sexual offences was recently conducted by retired senior udge John illen. He does recommend legislation to tac le rape myths and a measure of legal advice and representation for complainants. The SA affords rape victims pre trial advice rather than legal representation in court with the exception of the states of Wisconsin, West irginia and ew Hampshire where the latter is allowed. In Canada since 2 , legal representation for the victim is allowed in rape shield proceedings. In Australia there is no legal representation in court for rape victims. The rationale is that it would breach the accused’s procedural rights to a fair trial. ew South Wales is operating a pilot scheme for sexual assault victims. The court can be addressed on behalf of the victim in relation to preventing or restricting

Winter 2018 dsba.ie Sonya Dixon is a practising barrister who represents rape victims in criminal trials

Criminal Law

Ireland has a common law system which allows separate legal representation for victims, albeit in limited circumstances

the disclosure of sexual assault communications. Ireland has a common law system which allows separate legal representation for victims, albeit in limited circumstances. nder section A of the Criminal Law ape Act 8 which is inserted by Section of the Sex Offenders Act 2 ,a complainant in a rape trial is entitled to legal representation if the defence is proposing to cross examine him or her about previous sexual experience. This has been further expanded on by the Criminal Justice ictims of Crime Act 2 in affording victims a voice on disclosure. The 2 Act transposes the E ictims Directive in to Irish Law. The criminal Justice ictims of Crime Bill 2 8 see s to expand rights and to afford legal advice at the pre trial stage. This is a welcome development. The di culty with adversarial systems and victims’ rights was addressed by Lord Justice Auld in his review of the criminal courts of England and Wales some time ago. He stated that putting an alleged victim whose account the defendant challenges in a privileged role of an auxiliary prosecutor is unfair to the accused. urther it is regularly stated that victims cannot see e uality of arms in an adversarial system as it is a system that only allows for the prosecution and defence. That of course is correct but it is not e uality of arms that the victim should be see ing. It is merely an extension of the limited rights afforded to them under the current law in various urisdictions. It is also regularly stated that rape victims or sexual assault victims should not be treated differently and that if such practices are available to them, they should be available for all victims. ape victims should be treated differently to other victims. The devastating conse uences for rape victims that remain with them for their entire lives are well documented. Costs are also something else that are regularly cited as a barrier to extending rights for rape victims.

However according to the Department of Justice and E uality a total of , 8 was spent on complainant representation in rape trials in 2 The illen eport . Denmar is a country that provides extensive rights to rape victims in a mainly adversarial system, although there are some in uisitorial elements. State funded legal representation is afforded to all victims on matters directly affecting them. They cannot however call or cross examine witnesses. They may call witnesses at a sentencing hearing to address the impact of the crime on the complainant. Although the adversarial system presents challenges in affording victims extensive rights in a criminal trial we have to continue to be innovative and pragmatic in protecting their rights in so far as is possible. easures could include allowing their counsel to address the court on which persons are in court with the accused and advise victims on who is allowed to be in court to support them. Their wishes could be ac nowledged and advocated throughout the process. The victim should be given a broader right to be heard in court such as being able to challenge a line of uestioning that is not ust limited to their previous sexual history. Denmar is an example of a country where victims’ rights are extensive in a largely adversarial system. Despite what is widely thought, costs are not huge for such representation thus far. The victim’s counsel may save court time and costs by ob ecting to a line of uestioning that may ultimately be deemed to be irrelevant. The main issue is the balancing act between the rights of the accused and the rights of the victim, while also considering how the prosecution must run the case. Despite the delicate nature of the balancing act we must always consider how the process can be improved for victims. We owe it to them and to ourselves as a society to enable them to continue to come forward in increasing numbers. P the Parchment 15

DSBA Council & Committees 2018/2019 Council DSBA PRESIDENT: Greg Ryan VICE PRESIDENT: Tony O’Sullivan TREASURER: Joe O’Malley HONORARY SECRETARY: Diego Gallagher PROGRAMMES DIRECTOR: Susan Martin Gerry O’Connell Ronan McLoughlin Joan Doran Ciara O’Kennedy Killian O’Reilly Niall Cawley Matthew Kenny Laura Horan Paul Ryan Avril Mangan

Criminal Law Committee CHAIR: Ciara Hallinan, Michael Staines Edward Bradbury, Bradbury Solicitors Colleen Gildernew, KOD Lyons Danica Kinane, Michael E Hanahoe Andrew Vallely, Partners at Law Lydia Leonard, Pensions Authority Tony Collier, Tony Collier Solicitors

Commercial Law Committee CHAIR: Paul Ryan Chan Shi, ACSK Solicitors Edon Byrnes, DWF Lorna Osborne, Eugene F Collins John Darby, Flynn O’Driscoll Laura Fannin, Hayes Solicitors Conall Geraghty, Mason Hayes & Curran Gearóid Carey, Matheson Simon O’Neill, Philip Lee Angela Brennan Lisa McEllin

Employment Committee CHAIR: Ciara O’Kennedy Ailbhe Dennehy, A & L Goodbody Dermot Casserly, DWF Anna Broderick, Everheds Sutherland Mary Gavin, Hayes Solicitors Aoife McFadden, IBEC Julie Austin, McDowell Purcell Siobhan Laﬀerty, McDowell Purcell Peter Murphy, O’Mara Geraghty McCourt Ciara Ruane, Pinset Masons Ireland 16 the Parchment

Laura Graham, Reddy Charlton Ken Breen, Shannon O’Connor Jim Waters, Waters & Associates Louise Harrison, William Fry Sarah Browne, Mason Hayes & Curran

Tom O’Dwyer, Beauchamps Brian Ormond, DAC Beachcroft Avril Scally, Lavelle Coleman Valerie Shaw, ational Treasury Management Agency

Family Law Committee

Mental Health & Capacity Committee

CHAIR: Avril Mangan, Mangan Solicitors David Staﬀord, Mason Hayes & Curran Ruairí O’Brien, John C Walsh & Co Matthew de Courcy, KOD Lyons Anke Hartas, Legal Aid Board Noreen Maguire, Maguire Muldoon Cliona Costelloe, McKeever Rowan Michael Sheil, Michael Sheil & Partners Peter Doyle, Peter Doyle Solicitors Peter Quinn, Sheridan Quinn Diego Gallagher, Byrne Wallace Carol McGuinness, Baldwin Legal

In-house Lawyer’s Committee CHAIR: Pauric Heraghty, AXA Legal Services Solicitors Caroline Looney, Chief State Solicitor’s Office Eimear O’Doherty, Dublin City Council David Lawless, Icon plc Cian McElhone, Irish Film Board Linda Ní Chualladh

Litigation Committee CHAIR: Killian O’Reilly, McDowell Purcell Sarah Bruen, Shannon O’Connor Jessica Cantwell, Eugene F Collins Eamonn Carroll, State Claims Agency Susan Martin, Martin Kevin Dunne, ayes Solicitors Laura Horan, D’Arcy oran Jenny Foley, State Claims Agency Marcus Hanahoe, M E anahoe Cliﬀord Healy, Matheson Darragh Lenehan, A A Legal Services Solicitors Conor Lennon, Allied Irish Bank Plc Ailbhe Levingstone, DWF Conor MacGuill, Conor MacGuill Solicitors Rowena McCormack, DAC Beachcroft Emily Jane, McGuire ane Tuohy Solicitors James McMahon, St John Solicitors James Meighan, Eugene F Collins Alisia Mulvany, Reidy Stafford Piarais Neary, olmes O’Malley Sexton Barra O’Cochlain, Colm O’Cochlain

CHAIR: Joan Doran, Joan Doran Solicitors Olive Doyle, Byrne Wallace Katharine Kelleher, Comyn Kelleher Tobin Mark Felton, Felton McKnight & Co John Neville, John eville Solicitors Orla Keane, Mental Health Commission Aileen Curry, Office of the General Solicitor for Minors and Wards of Court Patricia Hickey, Office of the General Solicitor for Minors and Wards of Court John Costello, Orpen Franks Nicole Dillon, Porter Morris & Co Áine Hynes, St John Solicitors Mairead Quigley, Mairead Quigley Solicitors

Parchment Committee EDITOR: John Geary, JV Geary Solicitors Keith Walsh, Keith Walsh Solicitors Áine Hynes, St John Solicitors Julie Doyle, Clúid Housing Kevin O’Higgins, Kevin O’Higgins Solicitors Stuart Gilhooly, HJ Ward Solicitors Joe O’Malley, Hayes Solicitors Killian Morris, AMOSS Robert Ryan, Doherty Ryan

Practice Management Committee David Ballagh, Ballagh Solicitors Eamon Carney, Carney McCarthy Anne Leech, Ciara Doyle & Company Deirdre McDermott, Denis I Finn Ruadhan Killeen, Killeen Solicitors Sonia McEntee, McEntee Solicitors Niall Cawley, iall Cawley Solicitors Conor Ryan, Ryan & Crowley

Probate and Tax Committee CHAIR: Jessica Hickey, ibernian Law Solicitors Jeanne Kelly, Dominic Dowling Solicitors Orlagh Spring, M Roche & Co Aileen Hughes Courtney, Michael Sheil & Partners Owen Burke, Mullany Walsh Maxwells

Winter 2018 dsba.ie

DSBA Council 2018-19

Greg Ryan DSBA President

Tony O’Sullivan

Diego Gallagher

Joseph O’Malley

DSBA Vice President

Honorary Secretary

Treasurer

Susan Martin Programmes Director

Laura Horan

Niall Cawley

Paul Ryan

Matthew Kenny

Joan Doran

Killian O’Reilly

Ronan McLoughlin

Ciara O’Kennedy

Gerry O’Connell

Avril Mangan

Brian Broderick, O’ anlon Tax Limited Finola O’Hanlon, O’ anlon Tax Limited Trea McGuinness, Porter Morris Una Burns, Stephenson Solicitors Anne Stephenson, Stephenson Solicitors

Property Law Committee CHAIR: Ronan McLoughlin, Gallagher Shatter Solicitors Kenny McArdle, Byrne Wallace Martin Coleman, Dillon Eustace Mairead Cashman, Dublin City Council Sean Greene, Eversheds Sutherland Jackie Buckley, ayes Solicitors Tom Davy, Mason ayes & Curran Aine Gleeson, OMGM Ethna Ryan, Partners at Law Roisin Bennett, Reddy Charlton Elaine Given, Shannon O’Connor Marissa O’Keeﬀe, St John Solicitors

Younger Members Committee CO CHAIR: Aideen Shanley, Baily Homan Smyth McVeigh Deirdre Farrell, Amorys Ruth Donnellan, Arthur Cox Sheana Kiernan, Beauchamps Alison Martin, Beauchamps Christine O’Sullivan, Byrne Wallace Jane Bourke, Colleary and Co Simon Murphy, DAC Beachcroft Niall Sexton, DAC Beachcroft Niamh Pender, Deloitte Shahinaz Keating, Dillon Eustace Adrian Neary, Ferrys Ciara McMahon, Hayes Solicitors Shanna Dunne, Joynt & Crawford Solicitors Grainne Finneran, L K Shields Elaine O’Connor, L K Shields John Bollard, Mason Hayes & Curran Mairead McShea, McCann Fitzgerald

Jacinta O’Sullivan, Patrick F O’Reilly Aisling Woods, Shannon O’Connor Maria Hickey Linda Nyhan Joseph O’Rourke Ruth Prendeville

the Parchment 17

DSBA Submission on Barrister’s Code The Legal Services Regulatory Authority has, pursuant to Section 22 of the Legal Services Regulation Act 2015, gone out to public consultation on a draft code of practice for practising barristers. The DSBA made a recent submission to the LRA on the matter

Introduction ollowing review, conﬁned as it has been to evaluating any impact s on solicitors in their practice of the law and interaction with barristers, the DSBA set out in its submission a small number of observations on the Barrister Code, comprising some suggested changes and comments, which was put before the Legal Services egulatory Authority the Authority for its consideration. To the extent any of the DSBA suggested changes or comments related to provisions which repeat or are derived from any existing voluntary code of conduct applicable to barristers in the State and which might thus be ta en or viewed generally as accepted’ , this is because the Barrister Code will have a statutory basis and thus will be binding on not just barristers but also in its eﬀects on solicitors. We set out below our DSBA observations following the order/numbering set out in the Barrister Code.

Observations Paragraph 3.18 & 5.2 (c) - Client Monies We note and agree with the prohibition on a practising barrister in 3.18 from holding client money and in .2 C as to receiving client money, securities or other assets other than by receiving payment or remuneration . This prohibition is no doubt re ective of the public interest, given that the holding of client funds by a legal practitioner is conditional upon there being a sectoral compensation fund to meet any misappropriation of client funds being the case for solicitors, but not for barristers . However, and to the extent that a legal partnership might include a barrister, whether as a partner or an employee, the prohibition somewhat begs the 18 the Parchment

question as to what actions might be required to be taken by the legal partnership to ensure compliance with such prohibition. This issue may therefore necessitate some consideration when defining the regulations under the 2015 Act applicable to legal partnerships, with reference specifically to where a barrister is or is to be a partner in that partnership. Paragraph 3.37 – Conflicts This provision purports to allow a barrister to write to a client with advices where he she perceives a con ict between the solicitor and the client. Moreover, it provides that the barrister must advise the client to instruct a different solicitor in these circumstances. This is potentially very damaging for the solicitor concerned. Therefore we would suggest that 3.37 be amended in three respects as follows: . To re uire the barrister to first discuss his her con ict concerns with the solicitor and if he she remains dissatisfied, then the barrister may only write to the client indicating their view that a con ict may have arisen and that the client may wish to instruct another solicitor in those circumstances 2. To remove the entitlement of the barrister to recommend to a client that another solicitor be instructed being a matter solely for the client and 3. To require any communication from the barrister to the client to avoid using any disparaging or critical comments in relation to the solicitor. Paragraph 3.48–Fee agreement with Client Typically the ‘client’ relationship in any legal matter is with the solicitor, and not as such with the barrister

Winter 2018 dsba.ie

News

but so that the liability in law for the fees of both the solicitor and the barrister engaged on such matter rests with the client only . The suggested direct fee agreement between the barrister and ‘a client’ as referred to in 3.48 may have some merit from a fee certainty and recovery perspective for a barrister. However, it does run the risk of confusing if not undermining the solicitor/ client relationship if not handled appropriately. Thus, and to hopefully avoid any adverse eﬀects unintended or otherwise, we would suggest that . 8 be amended at the end of the ﬁrst sentence such that entry into such a fee agreement would be conditional upon prior consultation by the barrister with his her instructing solicitor if there is one in that regard. Paragraph 3.52 – Fees of two/more Barristers This provision states that where there is more than one barrister briefed on a case, the fees shall be a matter for agreement between each barrister and the instructing solicitor. This seems incorrect at least as so expressed. For clarity, it should be stated that such fees will be a matter for agreement between each barrister and the client via the solicitor. Paragraph 3.54 – Complaint to Law Society or the Authority as to Unpaid Fees As stated above the liability in law for the fees of both the solicitor and the barrister engaged on any legal matter rests with the client only . It is typically only when the solicitor is put in funds by the client in respect of the barrister’s fees, that the solicitor is then in a position to discharge such fees. Therefore, and in recognition of that governing legal framework and factual reality, we suggest that

3.54 be amended so that no such complaint to the Law Society or the Authority may be made by a barrister where the solicitor concerned has not been put in funds by the client to discharge the invoiced fees of the barrister. This would be without prejudice, as already stated in 3.54, to the right of the barrister to follow any other procedure for the recovery of fees that may be appropriate in the circumstances. Paragraph 3.55 – Contact with Client as to Unpaid Fees As stated above typically the ‘client’ relationship in any legal matter is with the solicitor, and not as such with the barrister but so that the liability in law for the fees of both the solicitor and the barrister engaged on such matter rests with the client only . The suggested entitlement for a barrister as referred to in 3.55 to be able to contact the client, or any third party such as an insurer responsible for discharging the barrister’s fees, to make a complaint as to unpaid fees may have some merit from a fee certainty and recovery perspective for a barrister. However it does run the risk of confusing if not undermining the solicitor/client relationship, and/ or to undermining the solicitor before any such third party, if not handled appropriately. Thus, and to hopefully avoid any adverse eﬀects unintended or otherwise, we would suggest that 3.55 be amended so that the barrister writing directly to such client or third party would be conditional upon prior consultation by the barrister with his/her instructing solicitor if there is one .

Conclusion The DSBA hope that our observations in this submission are of interest and assistance to the Authority. P

The suggested entitlement for a barrister as referred to in 3.55 to be able to contact the client, or any third party responsible for discharging the barrister’s fees, to make a complaint as to unpaid fees may have some merit from a fee certainty & recovery perspective for a barrister the Parchment 19

Elaine Healy and Lorna Kennedy are litgiation partners at Dillon Eustace

Litigation

Costs Differential Orders In a move to clarify the position in relation to diﬀerential costs orders, Elaine Healy and Lorna Kennedy report that the Court of Appeal has allowed an appeal and determined that proceedings were brought incorrectly in the High Court

It will be interesting to see the eﬀect which this judgment will have. It appears it will assist in reducing defendant legal costs

he Court of Appeal in Moin v Sicika and O’Malley v McEvoy 2 8 IECA 2 held that: a a differential costs order should have to be made by the trial udge the difference between costs in the High Court and the Circuit Court costs if the case was brought in the Circuit Court b the costs should be set off between the parties and c the awards of damages were so far, within the level of the Circuit Court urisdiction that these cases could not be considered borderline.

What are Differential Costs Orders? Section of the Courts Act, 8 as amended by section of the Courts Act allows a trial judge who has awarded damages which are within a lower monetary jurisdiction to measure a sum which the udge considers to be the diﬀerence between the costs actually incurred and those which would have been incurred had proceedings been brought in the correct urisdiction. This section was under utilised by practitioners.

Implications of the Decision It will be interesting to see the effect which this judgment will have. It appears it will assist in reducing defendant legal costs. The key changes that will apply following this decision are as follows: a Where warning letters are issued to a plaintiff ’s solicitor in advance of any court hearing challenging the monetary urisdiction, the plaintiff will have to seriously consider the implications of failing to initiate proceedings in the correct jurisdiction. b A plaintiff in the past faced no conse uence for issuing proceedings in a higher court other than a successful plaintiff may only receive Circuit Court costs in place of High Court costs and still obtain a certificate for senior counsel. A plaintiff in such a case faced no major penalty and this did not encourage them to fully assess the real value of the claim at the outset and throughout. c An unsuccessful defendant was re uired to pay their 20 the Parchment

own defence costs on a higher scale than would ordinarily be necessary. The judgment has sought to put an end to this and may have a positive outcome for the insurance industry in Ireland in reducing legal costs. The udgment by Court of Appeal still allowed for senior counsel fees to be paid. The defendants in this case went back to the court on this issue but the certificates remained. It would seem that where a plaintiff has commenced proceedings in the incorrect jurisdiction and failed to heed warnings which have issued from the defendant solicitor, the certificate for senior counsel should be disallowed. It is li ely that the certificate for senior counsel will be challenged in all future cases. laintiffs may in the future engage further experts in an effort to review the plaintiff ’s symptoms and meet the various thresholds. This would lead to an increase in costs at an early stage in the case. laintiffs may refuse to engage in settlement tal s at an earlier stage in the proceedings. This will not suit insurers who aim to settle cases as early in the process as possible. Court lists may lengthen. Any costs which cannot be measured by the court will involve having bills assessed independently to arrive at the figure to be paid to the defendant or to be set off against monies owed to the plaintiff. This will usually involve additional time and expense and the Court of Appeal urged the parties to try and agree the figures between them if possible to save on the cost and time involved with taxation.

Conclusion The courts were reluctant to ma e such differential orders in the past given the discretion provided by the section. Following this recent decision in the Court of Appeal, a trial udge must now ma e the differential order unless the trial udge has su cient reasons for not doing so. Where damages are awarded well below the courts financial thresholds then the judge should apply this case. This will result in a different approach to initiation of proceedings, engagement of experts and willingness to settle. P

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A Breach of GDPR – the Consequences Sarah eynolds is in festive spirits. In addition to identifying the conse uences of a breach of D she warns that even Santa Claus could be in contravention of the eneral Data rotection egulation E 2

collective sigh of relief was exhaled when the eneral Data rotection egulation the D came into force on 2 th ay last. However, for those impacted by the D the challenge is only beginning, and 2 th ay 2 8 only mar ed the start of D compliance, not the finish Even the most benevolent of operators, such as Santa Claus, cannot escape the clutches of the D . Organisations are now operating in a new landscape of data control and management where the new norm re uires a heightened awareness both amongst senior management and employees of their D obligations with the implementation of stringent controls to appropriately process and manage personal data. By now, organisations should be familiar with their D obligations and should have implemented appropriate processes and procedures to comply with those obligations and ensure the appropriate management of personal data. However, this is not the time for organisations to put their feet up and survey a ob well done on implementing D processes and controls. igilance and ongoing monitoring are critical to building a culture of understanding of, and compliance with, the D . Although the most stringent security measures can be put in place to prevent data protection breaches, human error can circumvent the best in class processes and is the main cause of data breaches in organisations, and the most di cult to prevent. The conse uences of failure to comply can be significant from both a reputational and financial perspective which can include the imposition of significant fines by the Data rotection Commission D C and organisations may also be exposed to civil actions by data sub ects.

Fines The D C has signiﬁcant powers to ensure compliance with the D and ta e enforcement action as re uired. 22 the Parchment

The D C can impose fines on organisations for non compliance up to 2 m or of the total worldwide annual turnover of the controller or processor in the preceding financial year whichever is higher . The higher tier of fines may be imposed for infringements of obligations relating to the core data protection principles such as transparency and accountability, the processing of sensitive personal data and breaches of data sub ects’ rights. The lower tier of fines up to the higher of m or 2 of the total worldwide annual turnover of the controller or processor in the preceding financial year may be imposed for infringements of obligations relating to obtaining a child’s consent, to the communication of a personal data breach to the supervisory authority or the data sub ect or to the designation, position and tas s of the data protection o cers. Article 8 of the D sets out what the D C must consider before imposing a fine which includes

Nature 1. and type of infringement

Consider the number of people aﬀected, the damage they have suﬀered, duration of infringement, and purpose of processing

2. Intention

Was the infringement intentional or negligent

Mitigating factors

What actions have been ta en to mitigate damage to data sub ects

Preventative measures

How much technical and organisational measures the organisation had previously implemented to prevent the non compliance

Categories of 5. personal data

What types of data the infringement impacts e.g. special categories of personal data

Winter 2018 dsba.ie Sarah Reynolds, is an associate in data protection and commercial litigation at Kane Tuohy Solicitors

The Court must approve the uantum of any fines and the affected organisations have the entitlement to appeal the imposition of fines by the D C. Since the 2 th ay 2 8 and as at ovember 2 8 the D C has logged , data breach notifications. Of these, the D applied in 2, . The D C has also logged 2, 8 complaints, of which the D applied in , 2 cases. The D C has received complaints and breach notifications that relate to issues that occurred both post and pre D 2 th ay and the pre D cases are dealt with under the old data protection legislation. On average, approximately 2 data breaches and 22 complaints were received per month last year 2 and the increased figures since 2 th ay 2 8 are indicative of the greater awareness and focus of organisations on their D obligations. We have yet to see how the D C will exercise its powers and the parameters of any fines that issue but it is only a matter of time before we see the imposition of the first fines in Ireland for breaches of the D . The Data rotection Commissioner, Helen Dixon, spea ing at the recent D Data rotection Conference in Dublin noted that the volume of complaints has been high since the D came into effect and the D C will prioritise the more important cases affecting the largest number of data sub ects. To assist in the carrying out their statutory duties, staff in the D C which is currently at , is due to increase to by the end of 2 8. As a sign of what may come to pass in this urisdiction the ortuguese Data rotection Authority has issued two separate fines totalling , on a ortuguese hospital in July last for two breaches of the D which related to the unauthorised access to patients’ clinical data.The first fine of , was issued for failing to respect patient confidentiality and limit access to patient data, and the second was issued for failing to ensure the confidentiality, integrity, availability and permanent resilience of treatment systems and services, was for , .

Civil Action An impacted data sub ect can also ta e a civil claim for damages against an organisation being either a data controller or processor under Section 28 of the Data rotection Act 2 8 without lodging a complaint with the D C although it is li ely that, in most cases an aggrieved data sub ect will lodge a complaint in parallel to ta ing any civil action and will await the outcome of the D C investigation prior to progressing any civil action. ecently, more than , employees of orrisons K Supermar et claimed damages against their employer, including an allegation of breach of statutory duty under the K Data rotection Act 8 which predated D implementation. This related to the malicious sharing from his personal C by a disgruntled orrisons’ employee of personal ﬁnancial data of approximately , employees of orrisons. The K High Court held that there was a su cient connection between the position held by the

Data Protection

disgruntled employee and his wrongful act as to ma e orrisons vicariously liable. The Court of Appeal upheld the High Court’s decision. This decision, although of persuasive authority only in this urisdiction, will be of concern to employers where they may now ﬁnd themselves liable for the wrongful actions of their employees and face liability from aﬀected data sub ects as a result of the malicious actions of their employees, even where the organisation is compliant with data protection laws.

Corrective Action and Criminal Prosecution The D C may direct corrective action under Article 8 of the D re uiring a non compliant organisation for example, to cease processing personal data, to comply with a data access re uest, and or bring processing activities into compliance in a specified manner and within a specified timeframe. A non compliant organisation and a director, manager, secretary or other o cer of that organisation may also be convicted on indictment to a period of up to five years imprisonment in addition to a fine for failure to comply with the D .

Conclusion It is important for organisations to realise that 2 th ay 2 8 represents the start of their D obligations and not the end. Organisations should ensure that they regularly review their D compliance processes to protect themselves against the reputational and ﬁnancial ris s of non compliance, where even the best processes and controls can be impacted by human error. Organisations should put appropriate insurance is in place, where possible, to cover liability as well as implementing strong data security and protection measures and ensure appropriate staﬀ training to protect themselves against such actions. By ta ing the steps now to understand, evaluate and address current and future D obligations, organisations will be best placed to deal with the various challenges that can come with the broad international scope of the D . PS Of course, if Santa has the data subjects’ consent for his list, Christmas might be saved P

Organisations should ensure that they regularly review their D compliance processes to protect themselves against the reputational and ﬁnancial ris s of non compliance, where even the best processes and controls can be impacted by human error

the Parchment 23

Healthcare/Litigation

Stephen McLoughlin is an associate at Beauchamps

Hospital has no Lawful Power to Restrain a Patient Against her Wishes Stephen McLoughlin looks at a recent Court of Appeal ruling where a hospital had no lawful power to restrain a patient in hospital against his or her wishes, notwithstanding that the restraint may have been in the patient’s best interests

This case emphasises an important point, namely that there is no general power to detain a person in a medical institution even if it is in the patient’s best interest

n AC v Cork University Hospital 2 8 IECA 2 , the court held that hospitals and healthcare institutions are not entitled to prevent patients from discharging themselves or taking decisions regarding their own care without appropriate lawful authority.

Facts of the Case AC had been admitted to hospital following falls which had resulted in multiple hip fractures. The treating team had become increasingly concerned about AC’s welfare and noted that AC was suﬀering from senile dementia. The hospital also had concerns about how her children were interacting with AC and about how AC’s discharge was to be managed. The hospital was of the view that AC required a high degree of post discharge care and that she lac ed the necessary capacity to make decisions regarding her care. Notwithstanding AC’s express desire to leave hospital, the hospital refused to discharge her. AC’s son, PC, made two applications under Article 40 of the Constitution seeking inquiries into the lawfulness of the detention of AC by the hospital. The High Court found that AC was detained by the hospital in accordance with law and found that AC lacked the necessary capacity to take decisions in respect of her care. The High Court, in a subsequent sitting, made AC a ward of court. PC appealed the High Court decision to the Court of Appeal.

Court of Appeal The Court of Appeal Hogan J giving udgment overturned the udgments of the High Court and declared that AC’s detention by the hospital had been unlawful. 24 the Parchment

The Court of Appeal held that the hospital had no entitlement at law to prevent AC from leaving the hospital if that is what she wanted to do. The court noted that there was no statutory power available to hospitals equivalent to s23 of the Mental Health Act 2001, which provides for the restraint of patients in psychiatric hospitals. The court further held that there is no common law power to prevent a patient from leaving a hospital and, even if such common law power did exist, its constitutional status would be questionable. In those circumstances, the court held that her detention by the hospital was unlawful and she was entitled to a declaration to that eﬀect.

Patient is Sole Decision Maker This case emphasises an important point, namely that there is no general power to detain a person in a medical institution even if it is in the patient’s best interest. Whilst hospitals and healthcare institutions are entitled to regulate their own aﬀairs including limiting access to patients, they are not entitled without appropriate lawful authority, to prevent patients from discharging themselves or taking decisions regarding their own care. Therefore, unless the patient has been made a ward of court, an enduring power of attorney is in place in respect of the patient or a speciﬁc statutory power such as s2 of the ental Health Act 2001 can be invoked, the patient is and remains the sole decision maker in respect of his or her own care. Please note that since the above article was written, the Court of Appeal decision has since been appealed to the Supreme Court and admitted into the Supreme Court list. The Appeal has yet to be heard. P

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Does Sorry Have to be the Hardest Word? Tom Hayes says that the recent adverse publicity in relation to CervicalCheck and wide ranging recommendations contained within the Scally report acts as a useful reminder to health service providers and medical practitioners concerning the risk of not being open and communicating as early as possible with patients when errors occur

ome practitioners are unsure whether they are obliged to inform patients when an error has occurred in medical treatment and many are terrified that if they do, they will risk litigation or a complaint to the Medical Council. Presently the law leaves disclosure of adverse incidents to a health service provider’s discretion pursuant to Civil Liability Amendment Act 2 . However, new proposed legislation contained in atient Safety Bill 2 8 the Bill provides for mandatory disclosure of serious patient safety incidents. Significantly, health service providers who fail to make a disclosure which is mandatory under the bill could face up to a , fine and six months imprisonment Head 2 of the bill . However, in certain specific circumstances when a disclosure is made, it cannot be used as evidence of liability or fault during litigation or for the purposes of Medical Council complaints. This legal protection for medical practitioners is aimed to encourage a culture of open disclosure. The bill sets out the circumstances in which mandatory open disclosure is to be made to the patient, the State Claims Agency SCA and HI A the ental Health Authority. Open disclosure must occur when a serious patient safety incident happens. While specific incidents are to be prescribed in further regulations, the bill gives an

26 the Parchment

indication of the sort of patient safety incidents which will be considered serious enough to re uire disclosure. The bill proposes that a serious patient safety incident should include incidents which lead to: • death • loss of bodily or sensory function • a change to a person’s body structure shorter life expectancy 28 day impairment or pain, or • treatment in order to prevent one of the previously listed outcomes. The proposed legislation also provides a list of examples of reportable incidents which includes no harm events which could have been serious, but not near misses . A ﬁnal proposal worth noting is that the SCA is to publish anonymised information on reported incidents. • Bene ts of pen isclosure Advocates for a duty of candour believe that it improves several aspects of healthcare, for example •

mpro ed uality of ealthcare A system which allows for errors to be identiﬁed and eradicated arguably goes a long way to improving the standard of patient safety, which in turn leads to the provision of a higher uality of healthcare. A system of open disclosure also facilitates respect for patient autonomy.

Winter 2018 dsba.ie Tom Hayes is a healthcare and medical malpractice solicitor. He is a partner at Matheson

Medical Negligence

Loss of trust in the system can compound any medical errors that occur, as displayed by the recent events surrounding CervicalCheck

• Attac ing the Blame Culture Open disclosure can go a long way to addressing the litigious blame culture that exists both outside and within the medical profession. A blame culture does little to make the system safer or prevent someone else from committing the same error, and can have an adverse impact on practitioners as they fear that admitting an error might impact their reputation amongst their peers. • Systematic mpro ements This improvement results from errors which are disclosed under an open system being recognised and systematic measures being put in place to avoid a repeated future occurrence. Facilitating the open disclosure of adverse events could, for example, go a long way towards eradicating repeated avoidable errors by implementing an organised care provision system with clear lines of accountability, as seen in the aviation industry for example. •

reater rust Leading to a eduction in Litigation An atmosphere of open disclosure between a practitioner and a patient has the potential to lead to a reduced uantity of clinical negligence claims. An environment of open and honest disclosure could increase the sense of involvement felt by patients, and possibly render them less likely to sue their treating practitioner

for an honestly disclosed error. This needs to be balanced against the proposition in the current version of the bill that plaintiﬀs in any ensuing litigation will not be able to rely on disclosures in proceedings. Loss of trust in the system can compound any medical errors that occur, as displayed by the recent events surrounding CervicalCheck.

Practical Advice Irrespective of what legalisation stipulates, it is important for health service providers and medical practitioners to understand and bear in mind the critical diﬀerence between an expression of regret that an error has occurred and a culpable apology. It is always unwise to accept responsibility for a tragic event or an injury in circumstances where the causal lin between the error and the in ury suﬀered is yet to be determined. In those circumstances, the most prudent and best practice would be to inform patients or their loved ones that an error has occurred but the critical issue as to whether the error in management has caused the injury can only be determined by further investigation. Imparting bad news can often be extremely stressful. It is always wise, if possible and particularly in challenging circumstances, to speak to a senior colleague, or if necessary have them present, when speaking to a patient or relative. P the Parchment 27

Robert Ryan is the Chair of the DSBA Committee, and a member of the Law Society of Ireland task force, on the Legal Services Regulation Act. Robert is the principal of Doherty Ryan & Associates Solicitors

News

Legal Education in Ireland Dawn of a new Era? Perhaps

The DSBA is pleased to note that the views expressed in its submission to the Authority have been extensively drawn upon throughout the report

s readers of the DSBA Parchment summer 2018 issue will be aware, the DSBA made a detailed submission to the Legal Services Regulatory Authority the Authority in response to its public consultation on legal education and training in Ireland pursuant to Section 34 of the Legal Services Regulation Act 2015. Subsequent to our submission, the DSBA was kindly invited to attend a meeting with the consultants engaged by the Authority to undertake the review on its behalf, and at which we discussed and expanded upon the terms of our submission. The Authority has now laid before the Oireachtas an interim report on Legal Education and Training in Ireland the eport . The eport can be accessed at http opac.oireachtas.ie AWData Library JUQdoclaid191118_105520.pdf The report contains some introductory comments from the Authority, and then attaches the very lengthy report of its consultants running with appendices to circa 270 pages. In light of the detailed case for reform of the legal education and training put forward by the consultants and if implemented the conse uent significant effect of such reform, the Authority has stated it wishes to undertake further public consultations on the proposals of its consultants set out in the report, as well as convening a public symposium in that regard. This period of consultation is we understand, penned to ta e place over the first six month of 2019. The DSBA is pleased to note that the views expressed in its submission to the Authority have been extensively drawn upon throughout the report.

Proposals The report sets out in section 8 the proposals made by the consultants. These comprise two core proposals, and then twelve other proposals in support. The ﬁrst Core roposal is that a clear deﬁnition of the competence and standards required of legal practitioners to practise law should be developed. As stated in the report the “competence and standardsbased approach offers an opportunity better to define not only core knowledge, skills and attitudes required by legal professionals, but also the specific tasks they should be capable of performing, and the standard at which such tasks should be performed”. The second core proposal is that the role and responsibilities of stakeholders in the legal education and training system should be reformed to re ect modern principles of good governance and better regulation. In that regard it is proposed that the Authority should establish a new independent body, to be called the Legal ractitioner Education and 28 the Parchment

Training Committee’ the L ET Committee to be tasked with responsibility for setting and assuring standards of legal practitioner education and training. The remaining 12 proposals may be summarised as follows • an accreditation and validation framework should be developed for legal education and training providers by the L ET Committee • the introduction of new providers or alternative routes to ualification should be managed to maximise the potential benefits and to avoid confusion • assessment methodologies should ensure adherence to standards • the L ET committee should monitor the uality of legal education and training • admission to programmes of legal practitioner education should be based on achievement of specified competencies to defined standards • the L ET committee should develop a common set of competencies and standards for admission to the current C and barrister at law degree programmes • based on a competency approach, potential for differentiating entry re uirements to legal practitioner training courses for law degree versus non law degree holders • based on a competency approach, improving diversity and representativeness of the legal profession • existing professional bodies to retain their admission to the profession role, but perhaps no longer on a sole exclusive basis in relation to the legal education re uirements for such admission • a review to be conducted in the future of transfer rules and procedures as between solicitors barristers • a review to be conducted in the future of existing foreign lawyer transfer rules and procedures • a root and branch review’ of existing C D schemes to be conducted.

Conclusion One may perhaps regard the report as being the beginning, rather than the end, of the process to determine the future governing framework of legal education and training in Ireland. Given however the depth of the quantitative and qualitative research and analysis exhibited in the report, it is likely that the proposals and analysis contained in the report will signiﬁcantly inform and shape the debate around this important topic going forward. P

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New Corruption Offences The Criminal Justice Corruption Oﬀences Act 2 8 consolidates and modernises anti corruption legislation that dates bac to 88 . Eoin ac Aodha says that the scope of the Act is broad and applies to individuals, companies and voluntary bodies, foreign and Irish o cials

1. Types of Corruption: the Offences and Penalties Offences under the Criminal Justice Corruption Offences Act 2 8 the Act are predicated upon the concept of acting corruptly’ which is defined as including acting with an improper purpose. Throughout the Act a bribe’ is expressed to be a gift, consideration or advantage’. The bribe does not have to actually be given or accepted to commit the offence agreement to give or accept the bribe is su cient. The offences set out below apply to the public and private sector. a) Acti e and passi e corruption Section of the Act provides for the offence of active corruption bribe giving and passive corruption bribe ta ing . A person guilty of an offence under section is liable on summary conviction to a fine of , and or 2 months imprisonment, and on indictment to an unlimited fine and or imprisonment of up to years and forfeiture of the property constituting the bribe. ) Acti e and passi e trading in influence Section creates a new offence that prohibits the active and passive bribery of a person who may be in a position to exert an improper in uence over an act of a public o cial. A person guilty of the offence of active or passive trading in in uence is liable on summary conviction to a fine of , and or 2 months imprisonment, and on indictment to an unlimited fine and or imprisonment of up to years and forfeiture of the property constituting the bribe. c) Corruption in relation to o ce employment position or usiness nder section , it is an offence for an Irish o cial to corruptly obtain a bribe from any person and to use confidential information obtained in the 30 the Parchment

course of public o ce for the purpose of corruptly obtaining a bribe. A person guilty of an offence under section is liable on summary conviction to a fine of , and or 2 months imprisonment, and on indictment to an unlimited fine and or imprisonment of up to years and forfeiture of the property constituting the bribe. d) Bri ery to facilitate an o ence Section 8 creates a new offence of facilitating bribery. Where a person gives a bribe, and nows or ought reasonably to now, that it will be used to facilitate the commission of a corruption offence, that person shall also be guilty of an offence. A person guilty of an offence under section 8 is liable on summary conviction to a fine of , and or 2 months imprisonment, and on indictment to an unlimited fine and or imprisonment of up to years and forfeiture of the property constituting the bribe. e) Creating or using a false document nder section , it is an offence for a person to corruptly create or use a document that the person nows or believes contains a statement that is false or misleading. The person must intend that another person rely on that document to their own pre udice or the pre udice of another person. Document’ is broadly defined in the Act to include data held electronically on devices such as smartphones. A person guilty of an offence under section is liable on summary conviction to a fine of , and or 2 months imprisonment, and on indictment to an unlimited fine and or imprisonment of up to years. f) ntimidation It is an offence to threaten to harm an individual in order to corruptly in uence them. This offence

Winter 2018 dsba.ie Eoin Mac Aodha is a senior associate at Eversheds Sutherland

mirrors the oﬀence of bribery and recognises that corruption can be lin ed to negative threats and not solely the inducement of a bribe.

2. Corporate liability – Act Now nder section 8 , a body corporate will be criminally liable where a director, manager, secretary, employee, agent or subsidiary commits an offence under the Act with the intention of obtaining or retaining business for the body corporate or an advantage in the conduct of business for the body corporate. A body corporate guilty of such an offence will be liable on summary conviction to a fine of , and on indictment to an unlimited fine. Crucially, it will be a defence to a prosecution under section 8 where the body corporate proves that it too all reasonable steps and exercised all due diligence to avoid the commission of the offence. This means that companies and public bodies will need to develop and roll out anti corruption policies and staff training to ta e account of the new legislative regime. This defence came into focus recently in R v Skansen Interiors Limited, the K’s first contested corporate prosecution of failure to prevent bribery. The defendant argued that it had ade uate procedures in place to prevent bribery, including anti bribery clauses in contracts and that the company employees were aware that bribery was prohibited. The prosecution relied on the absence of a compliance o cer with responsibility for anti corruption, inade uate training of staff, and failure to update processes with changes in the law, securing the company’s conviction.

3. Senior officer liability - Beware nder section 8 where an oﬀence is committed by a body corporate and it is proved that the oﬀence was committed with the consent, connivance or

Litigation

wilful neglect of senior o cers, that person, as well as the body corporate, shall be guilty of an offence. A person guilty of an offence under section 8 will be liable on summary conviction to a fine of , and or 2 months imprisonment, and on indictment to an unlimited fine and or imprisonment of up to years. Importantly, it is not necessary for the body corporate to have been convicted of the offence in order for liability to attach to senior o cers, only that the offence is committed reference D v Hegarty 2 I. . and ingleton v The Central Ban of Ireland 2 IEHC .

4. Also of Note

a) Presumptions The Act provides for a number of rebuttable presumptions relating to bribes given to received by or on behalf of an o cial or a connected person, and donations to members of the government where such donations are excessive value donations and impermissible donations . Where it is proven that a bribe or donation was given by a person with an interest in the functions of that o cial, a presumption arises that it was given corruptly. The Supreme Court in DPP v Forsey recently considered the interpretation of this presumption holding that its rebuttal does not re uire an accused to prove his innocence. ather, the accused bears an evidential burden, e.g. to point to evidence of an innocent explanation for receipt of the beneﬁt.

Crucially, it will be a defence to a prosecution under section 8 where the body corporate proves that it too all reasonable steps and exercised all due diligence to avoid the commission of the oﬀence

) tra erritorial e ect Corruption offences are given extra territorial effect under the Act similar to the provisions of the Bribery Act 2 in the nited Kingdom. A person may therefore be liable for offences committed outside the State where the act in uestion would constitute an offence if committed within the State. P the Parchment 31

32 the Parchment

Winter 2018 dsba.ie Kevin O’Higgins is a former President of the DBSA; former President of the Law Society and former editor of the Parchment. He has his own practice in Blackrock

Interview

The Life of Byrne Ken Byrne is a sole practitioner in Blackrock where he has practised for the last 31 years and is now on the cusp of retirement. His innings as a practitioner have been steady, solid and hard working. It is however, his back story in life, his other interests, his joie de vivre, outside the law which ma e him diﬀerent from most of us. We as ed Kevin O’Higgins as someone who knows Ken and puts up with him on a daily basis, to give us the rundown on this accomplished lawyer with an interesting story

or who amongst us can draw on such life experiences as having climbed the Matterhorn, worked on the construction of the Victoria tube line in London, operated as a welder’s mate in the orth Sea, mined for copper in the Rockies, took out an Actor’s E uity card, availed of T and commercial activities in America, became a licensed operator of heavy machinery in ma or construction sites in orth America, too out a pilot’s license, and wor ed as a carpenter on construction sites in Chicago? These activities spanned a decade during which Ken followed his instincts. Life was for living and he was happy to go wherever fate might lead him. While he new he would have to someday settle down, “get a real job” and get serious, he was determined also to live his dreams, travel the world, experience other cultures and all of this in a period being the s when travel was far less accessible and aﬀordable. He was determined to push the boundaries, live his dreams and see where it would bring him. ow I hope Ken’s story does not bring out in you a ﬁt of envy or regret, a bout of self analysis. Those of us myself included can all navel gaze and regret that we could

I arrived in Fort McMurray staying in a Hostel for the Homeless mostly ative Indians for a couple of days until I managed to ﬁnd a construction job. I ended up staying in Fort McMurray for a further 3 years

have, should have, done different things before we hopped on the legal treadmill. For the vast majority of us, I guess, we are a predictable bunch and have travelled the road most travelled. Left school, then college, got the degree, ualification, commencement of legal career and from then to date. That’s our lot until we retire. All very laudable. We can all funnel our desires and ambitions in different ways and throw ourselves into our chosen careers. It is what most of us have done. It’s how we have drawn satisfaction, earned our livelihoods. However, for those of us “predictables” there may be regrets lingering or harbouring within us. A lament perhaps, that we didn’t brea out, do other things, delay the immersion into our legal careers, that we hadn’t availed of other life experiences. We believe that Ken’s life story is one of positivity, is compelling and needs to be told. So here it is Ken Byrne is now in his late s, has practised under the style of Ken J Byrne for over years in the village, as I have done, of Blackrock. His handlebar moustache has been a trademark look as has his preferred mode of transport his motor bi e. His wor ethic is phenomenal clocking up savage hours usually the Parchment 33

Experience in climbing came in handy in the o ce some years ago when a gutter from next door fell, blocking the rear exit... I brought in climbing ropes and abseiled down three oors from the o ce level to unbloc the exit door over a six day wee . His areas of practice have been mainly in the conveyancing and probate but he has dabbled in all the usual areas of general practice. He recounts that one of his early professional highlights was successfully defending a man charged with prostitution with a high profile madame. Ken comes from an army family perhaps that explains the moustache . His father Harry worked through the ranks and ultimately became Adjutant General, the second highest position in the Defence Forces, just below that of Major General. With family postings around the country, boarding school for the young Ken in the Ireland of the early s, made sense. In his case Clongowes Wood College in Co Kildare, where despite not uite finishing his full six years, arising from some infamous incident, he maintains the greatest of friendships with his classmates from that time and regularly meets them. Colleagues Dan O’Connor and Willie O’ rady would have been contemporaries and remain great friends to this day. I left Clongowes in and of the boys in my year, ualified as lawyers. I guess this must have had a persuasive effect on my following suit much later.” Ken went to CD in initially to study science but then switched to commerce in having ta en a seven year scenic route. While I was in CD I stayed in Balnagowan University Residence where I also got to know a number of law students including ran urphy now practising in Stillorgan and J Halley Waterford . During the course of my B Comm I made a decision that on ualifying within a few years afterwards I would apply to the Law Society. His summers were spent working initially in England on construction obs such as a welder’s mate on the orth Sea gas pipeline, a tunneller constructing what was then called the new ictoria Line underground rail line tunnelling at ft under the iver Thames in 2. atmosphere of pressure to keep the water at bay. He also spent a couple of summers in construction as a carpenter in Chicago. During the holiday periods mostly Easter and at the end of the summer I too time 34 the Parchment

off to hitchhi e around Europe and orth America. While hitchhi ing in Italy in the early s I met a medical student from ottingen in ermany. We ept in contact and eventually, with the B Comm under my belt, I headed back to his town where I got a job in a bookstore for eight months and immersed myself in German life and culture.” Ken returned to Ireland in . However, still with itchy feet, he succeeded in getting a green card to return to Canada for work .He intended staying for six months to earn enough money to travel the length of the Americas, onwards to Australia to work and thereafter to complete the full degrees before returning back home. He was gone for four years His first port of call was Halifax, ova Scotia. On a cold ovember day with the intention of hitchhiking to Vancouver to a friend of mine, Johnny Cheevers, an Irish emigrant, now a lawyer practising there and now for some time Honorary Irish Consul to British Columbia I ept hearing of a place in northern Alberta called Fort McMurray. It was famous for its oil extraction processing plant then under construction and called the Athabasca Tar Sand ro ect, a latter day “Klondike”. As luck would have it my last lift heading west in the direction of Calgary was actually turning north from there to ort c urray. He offered me a lift. With neither a guarantee of a job nor a place to stay, I took my chances. “I arrived in Fort McMurray staying in a hostel for the homeless mostly ative Indians for a couple of days until I managed to find a construction ob. I ended up staying in Fort McMurray for a further three years. McMurray was known as “Fort McMuck” so called as there were no paved roads from about 2 miles south up and into McMurray which was the last location north on that road. This is the town which almost burned to the ground in serious forest fires in northern Alberta in early 2 and from a population of approximately , about female in , now has about , residents. Whilst there, he initially wor ed at a ob laying sewer pipes. On starting my first ob

the foreman said to me that the two most important things I should know about this ob were firstly that I got paid on a Thursday and secondly that s don’t ow uphill Ken then got lucky having somehow fooled enough people that he was capable of managing heavy machinery. In truth, the aptitude process was long and exacting. Wor mates were good to him and gave him time. He earned his spurs becoming a member of the International Brotherhood of Operating Engineers nion. This was his licence to operate heavy e uipment bulldozers, cranes, earth movers and the li e. or a twenty something in the s this was his Lotto winning moment. The world now was very much his oyster and he was going to maximise it. He was now virtually employable on any construction site anywhere in the world and the financial rewards were considerable. “I was never short of work and could en oy a very good lifestyle in orth America. This again was interspersed with various hitchhi ing trips around orth America, the Caribbean and elsewhere during the winters when permafrost set into the ground other than during one six month period when in order to avoid the 2 below zero temperatures, I took a job at Churchill Copper an underground mine in the oc y Mountains of northern British Columbia at a , ft base. At , ft below ground level the temperature was a balmy but very wet above zero. In , Ken returned to commence law studies in Trinity and the Law Society. Whenever funds were needed he popped back to Canada for work assignments. He had also oined Actors E uity. At the end of my second year law exams nown since as the old system I too two years off to wor in the film business. I was one of the stunt men on the John Boorman film Excalibur and subse uently on a S T series called The Mannions of America which introduced ierce Brosnan to a S audience and a few other productions.” He also dabbled in T commercials. Colleagues of my generation will remember the iconic Harp T commercial featuring Sally O’Brien and the way she might loo at you featuring an emigrant in the iddle East where it was so hot you could fry an egg, if you had an egg . These Saharan shots were then interspersed with the alluring Sally O’Brien in his local pub bac home. Harp Lager ran a se uel to this classic involving a i ing theme. The ad features a harpist in the Sally O’Brien genre. She was ionnuala whom Ken was to subse uently marry. They have two much loved children, Shane and Sophie.

Winter 2018 dsba.ie

Interview

Photography: Bryan Meade

I returned to the legal fold and ualified in 82 but as the ob mar et for newly ualifieds then was not great, I returned to Canada and got work constructing the Red Deer iver dam in Alberta. While there I took out Canadian citizenship. I well recollect the citizenship ceremony. There were of us and of my group were Vietnamese boat people.” For a further bit of diversion Ken became a ying enthusiast and too out a ying pilot s license ust in case it might come in handy. He remained in Canada for another year before returning back to Dublin in early 8 where he got an apprenticeship in the firm of his old pal erry Halley in Waterford. In early 8 he finally found paid employment as a solicitor in Haughtons Solicitors, Dun Laoghaire. Here he met iall Cawley and Gerry Lambe. In early 8 I set up my own general practice, Ken J. Byrne & Co in Blackrock, Co Dublin having suggested to iall that, should he consider setting up practice, we might operate together in some fashion. I had a spare o ce and iall then oined me in early . ather than forming a partnership we shared overheads, reception, o ce e uipment and the li e. During all this time Ken had been a keen cyclist and founding member of the Bum Bums a motley collection of pre lycra wearing lawyers who meet for a weekend on a monthly basis traversing some part of the island of Ireland. The early crusaders were the late great Brendan Walsh, ivian Matthews, Frank Lanigan and later Justin cKenna, ol O’ eilly and barrister Cormac O’Dulachain. They have been on the go for 31 years. I added a couple more o ces to the o ce building and we were oined by this interviewer Kevin O’Higgins and at Igoe in 2 , each operating separate practices in a confidence and supply agreement. Ken’s other pastimes have variously involved rugby and golf. He is also a very accomplished and keen skier which he participates in throughout the year. He has climbed the Matterhorn. Experience in climbing came in handy in the o ce some years ago when a gutter from next door fell, blocking the rear exit from the basement which itself is two oors up from ground level of the Dart car park in Blackrock. I brought in climbing ropes and abseiled down three oors from the o ce level to unblock the exit door.” Ken transferred his practice to iall Cawley Co Solicitors, in December 2 . “I intended to row back on the work not realising after all of these years of knowing

Ken Byrne at a glance

WHEN QUALIFIED 1982 FAMILY Wife – Fionnuala, children – Shane (24) and Sophie (23) FAVOURITE FILM Apocalypse Now FAVOURITE SONG OR PIECE OF MUSIC? The Long And Winding Road/Beethoven’s 9th BIGGEST INFLUENCE ON YOUR CAREER? Very hard to say. The thing I value most is the collegiality factor. If I were to select an individual – Brendan Walsh, solicitor, Former City Sherriff, (Deceased)

him that iall had ta en a Law Society diploma in “slave driving”. I am still at my des long after he has left of an evening He greatly values collegiality amongst the profession and supports activism in one's bar association and in anything that involves colleagues clubbing together. He became a notary public and has been taken abac at how signiﬁcant an area of practice it has been for him. The faculty are a very sociable bunch and their AGM and the bash that follows it is always a highlight.” The southside dinner for colleagues in the area is also a great event organised each year by Justin McKenna and Ken is always a regular. He also attended this year’s DSBA conference to Venice. At some stage on

arrival in Venice Airport he realised that his wallet was missing. It was full of cash. He presumed the worst and that he had been pick pocketed. He was embarrassed to tell his wife ionnuala. On his return to Dublin, and having sheepishly made en uiries, he was told that his wallet had been found intact and replete in the airport restaurant I’m thin ing maybe I might be able to retire more easily if I went back to bulldozer driving or in Canadian parlance “cat s inning . In the meantime iall, Kevin, at and I and the three secretaries/receptionists have now all been together as friends and colleagues for the past eight years and more. I couldn’t as for a better o ce environment. aybe I’ll stay a bit longer. P the Parchment 35

Workplace Disciplinary Process Important Clarification from Court of Appeal

The Court of Appeal has provided some welcome clariﬁcation on when the right to legal representation in internal disciplinary processes exists. Donal Hamilton assesses the implications of the decision in Irish ail v Barry cKelvey 2 8 IECA

p to last year, the rules surrounding the right to legal representation in disciplinary processes were relatively clear. The Code of ractice on rievance and Disciplinary rocedures clearly excluded ‘any person or body unconnected with the enterprise’ from acting as an employee representative in a grievance or disciplinary process. And the Supreme Court udgment of Burns and Hartigan v Governor of Castlerea Prison provided that an employee could be entitled to legal representation in disciplinary proceedings in certain ‘exceptional’ circumstances. The Supreme Court stated that the essential point in determining whether ‘exceptional circumstances’ existed was whether legal representation was needed in the circumstances of the case, but as a starting point, the following factors should be considered the seriousness of the charge and the proposed penalty whether any points of law are li ely to arise the capacity of the particular person to present his or her own case procedural di culty the need for reasonable speed in ma ing the ad udication, that being an important consideration and the need for fairness between the diﬀerent categories of people involved in the process. However, this position was thrown into uncertainty in July 2 when the High Court’s decision in Lyons v Longford Westmeath ETB was delivered. In its recent

36 the Parchment

udgment of Irish Rail v Barry McKelvey the Court of Appeal has sought to clarify some of the uncertainty created by the Lyons decision.

The Facts The case involved an appeal by Irish ail against an order of the High Court restraining it from commencing a disciplinary hearing in relation to alleged “theft of fuel through misuse of company fuel cards” by r cKelvey. Irish ail began an investigation in 2 after concerns arose regarding the amount of fuel being purchased in r cKelvey’s division. When the decision to initiate a formal disciplinary process was reached and notiﬁed to r cKelvey in ay 2 , r cKelvey re uested that he be allowed to be represented by a solicitor and counsel at the hearing, having regard to the allegation of “theft”. Irish ail refused, stating that r cKelvey already had the right to be represented by a colleague or a registered trade union, in line with the Code of ractice on rievance and Disciplinary rocedures. ollowing Irish ail’s refusal to allow the re uest, r cKelvey successfully applied to the High Court for an in unction restraining Irish ail from commencing the disciplinary proceedings until he was allowed to have his re uested legal representation. In granting the in unction, the High Court decided that the “charges levelled against Mr McKelvey could hardly have been more serious insofar as they put at risk not only his reputation but also his future employment prospects”. The court found that r cKelvey’s right to fair procedures and natural and constitutional ustice

Winter 2018 dsba.ie Donal Hamilton is a senior associate at McCann Fitzgerald

Employment Law

was engaged. The court considered that “given the complexity of the case” r cKelvey had an entitlement to legal representation during the disciplinary process.

that he has identified any factual or legal complexities that may arise that he should not be in position to deal with adequately with the assistance of his trade union representative .”

The Court of Appeal’s decision

Take Away

Irish ail appealed the High Court’s decision to the Court of Appeal and argued that the High Court had erred in law by concluding that the principles of natural ustice automatically entitled r cKelvey to legal representation at the disciplinary hearing. While both the High Court and the Court of Appeal agreed that Burns is the leading authority, the Court of Appeal disagreed with the High Court’s application of the Burns factors to be considered by an employer when deciding whether there is an entitlement to legal representation in disciplinary processes. The Court of Appeal in granting Irish ail’s appeal, implied that the High Court had focused on the ﬁrst Burns factor the seriousness of the charge and the proposed penalty to the detriment of all others. Ta ing a broader consideration of the factors, the court stated that, “While it is true to say that Mr McKelvey faces a disciplinary inquiry which could lead to his dismissal and which has the further potential to impact on his future employment prospects and his reputation, in this regard he is no different to a very substantial percentage of employees facing allegations of misconduct in the workplace. In my view, the allegation of misconduct made against Mr Mc elvey is a straightforward one and I am not satisfied

The decision is a strong endorsement of Burns as the leading authority. Without completely disregarding Lyons, the Court of Appeal’s statement that it “significantly departed” from the Supreme Court authority will be comforting to employers who will once again be able to confidently respond to re uests for access to legal representation during internal disciplinary processes in the nowledge that the Burns test will apply. While the case might provide some clarity and comfort to employers regarding legal representation, employers should be advised that the second limb of Lyons the right to cross examine witnesses in the disciplinary process, was not specifically addressed in cKelvey. Although the court did caution that disciplinary procedures should not “ape” court proceedings, there is no explicit consideration of the extent of the right to cross examine in disciplinary proceedings. In these circumstances, employers should continue to remain cautious in their approach to this uestion, as it is clear from previous High Court authority that the right to cross examine can arise in some disciplinary processes. However overall, the clarification provided by the Court of Appeal in relation to the right to legal representation will be welcomed by employers. P

The Court of Appeal in granting Irish ail’s appeal, implied that the High Court had focused on the ﬁrst Burns factor the seriousness of the charge and the proposed penalty to the detriment of all others the Parchment 37

Lisa Smyth is a partner at McCann Fitzgerald

Litigation

The Loan Purchaser, the Litigation and the Need for Speed Lisa Smyth says that a recent decision of the High Court has emphasised that those purchasing loan books acquire not only rights but obligations too The Case

The defendants sought to have the proceedings struck out, arguing that the plaintiﬀ had been guilty of delay

In Havbell DAC v O'Hanlon 2 8 IEHC the plaintiff had purchased certain loans from Permanent TSB including the defendants’ loan. In 2 8 ermanent TSB had commenced summary proceedings against the defendants in respect of monies allegedly outstanding under that loan. For their part, the defendants claimed the loan had been redeemed in full. The plaintiff too no steps to advance the summary proceedings until 2 8 when an application was made to substitute Havbell as plaintiff in place of Permanent TSB. The defendants now sought to have the proceedings struck out, arguing that the plaintiff had been guilty of delay. In granting the application MacGrath J emphasised the summary nature of the proceedings. He said that such proceedings should be expedited with all due dispatch . That had not occurred here and the plaintiff had given no reasonable explanation for the delay.

MacGrath J stated that the recent intervention of Havbell could not excuse the delay. He was satisﬁed that when one party took over a loan and the litigation arising from such loan, he assumed not only the rights but also the obligations of the litigation. This included any obligation which might not have been fulﬁlled including the re uirement to process a case with all due expedition.

General Prejudice Sufficed Significantly, the defendants did not have to point to any specific pre udice that they had suffered due to the delay such as unavailability of evidence. The court was satisfied that general pre udice would su ce. This general pre udice was substantiated by the defendants, having had to endure the unnecessary oppressiveness of proceedings hanging over them for in excess of 11 years as well as the requirement to answer these proceedings at such remove from the events in dispute. It would be inequitable and against the balance of ustice to re uire the defendants to do so. It might also run contrary to the State’s obligations under the European Convention on Human Rights to ensure the expeditious progress and conclusion of proceedings in a case of this nature.

Comment This decision underscores the importance of completing proceedings in a timely manner. While delays in proceedings may occur for many reasons, they are more likely to feature in the context of debts which are ultimately intended to be sold. Consequently, loan sale purchasers in particular should be alive to this ris and ensure that su cient focus is given to any live proceedings in the due diligence phase. While further litigation may not ultimately be barred, fresh proceedings may prompt statute of limitations defences that would not otherwise be considered and in any event, will lead to unnecessary additional cost and delay. P 38 the Parchment

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At Your Service… Until (Unfairly) Dismissed While on Probation Michael Doyle warns that a recent Labour Court recommendation serves as a useful reminder to employers that they do not enjoy a carte blanche when it comes to dismissing employees on probation

he case of Beechside Company Limited T/A Park Hotel Kenmare v A Worker has attracted widespread media coverage as it concerns the Park Hotel Kenmare which is owned and operated by the Brennan brothers of RTE’s At Your Service fame.

Probationary Employees Enjoy Rights too! In this case the Labour Court found that the former general manager of the Park Hotel Kenmare had been unfairly dismissed while on probation and recommended he be paid a compensatory award of €90,000. The former employee claimed that he was dismissed without warning after being called to a meeting with John Brennan, the managing director of the hotel, who informed him that it was “not working out”. The hotel argued that it was entitled to dismiss the employee during his probationary period by the giving of notice, as this was provided for in his contract of employment.

The Labour Court accepted that an employer has a right to decide not to retain an employee in employment during their probationary period. However, it stated that “this can only be carried out where the employer adheres strictly to fair procedures”. The court concluded fair procedures were not applied in this case as the employee: i was not provided with details of any performance issues ii no warning was given that his employment was in jeopardy iii he was not aﬀorded the right to representation iv he was not provided with the reasons for his dismissal; and v he was not aﬀorded an opportunity to reply. As the former employee had less than 12 months’ service, he could not challenge his dismissal by way of an unfair dismissal claim. For that reason he brought a claim under the Industrial Relations Acts, for which there is no length of service requirement. The downside of such a claim is that the Labour Court’s recommendation in his favour is not legally binding.

Commentary It is relatively common for employers to provide in contracts of employment that a company’s disciplinary procedure does not apply to employees during their probationary period. This combined with the fact that employees typically require 12 months’ service in order to bring a claim under the Unfair Dismissals Acts often lulls employers into a false sense of security when it comes to dismissing probationary employees. The Labour Court has consistently a rmed an employee’s right to natural justice and fair procedures as outlined in the Code of ractice on rievance and Disciplinary rocedures S.I. o. of 2 prior to being dismissed from their employment, regardless of their length of service and whether or 40 the Parchment

Winter 2018 dsba.ie Michael Doyle is a partner at A& L Goodbody’s Employment Law Group

not they are on probation. As this recent Labour Court case demonstrates, a failure to do so can result in a signiﬁcant adverse award being made. While such awards are not legally binding, they can result in adverse publicity and have the potential to create broader employee relations issues.

Other Avenues of Redress Employers should be aware that there are other avenues of redress available to employees dismissed during or at the end of their probationary period. For example, an employee may argue that the dismissal was lin ed to a discriminatory ground e.g. gender, age, race and challenge the dismissal under the Employment E uality Acts on that basis. While undoubtedly rarer in practice, it is also open to a probationary employee to apply to the High Court to restrain their dismissal where they can establish they are to be dismissed in breach of their right to natural justice and fair procedures.

What Should Employers Do? While case law conﬁrms that due process must be followed in eﬀecting a probationary dismissal, that does not mean that the full rigours of a company’s

Employment Law

disciplinary procedure must be followed prior to dismissing an employee on probation. It is however important that an employer can demonstrate a procedurally fair process has been followed. If an employer has a probationary policy, it should be adhered to. If an employer does not, it should put in place a probationary review process, in the course of which an employee’s suitability for continued employment is assessed. An essential part of such a process is a mid probation review, whereby a probationary employee is informed of their progress on probation, notified of any performance concerns and afforded a reasonable opportunity to address those concerns prior to a decision being made on their continued employment. An end of probation review should also be held, at which an employee should be advised whether they are to be confirmed in their position, dismissed on notice or have their probationary period extended. In all cases, it is important a paper trail is kept. Finally employers should ensure they have communicated their probationary decisions prior to an employee accruing 12 months’ service, as the ramifications of effecting a procedurally unfair dismissal after this threshold has been reached are much greater. P

Employees typically require 12 months’ service in order to bring a claim under the Unfair Dismissals Act

the Parchment 41

Striking a Balance – Workplace Wellness Increasingly employers are understanding the need to look after the welfare of their staff. Employee support specialist onica Haughey advises that solicitor practices and firms should be mindful of wor place wellbeing as it is for everyone’s benefit

was recently invited to speak at the annual Outsource conference attended by over solicitors. This year’s topic was The Challenges and Opportunities in Running a Law Firm in 201 -201 , and Outsource director, David Rowe invited me to spea on my specialist sub ect, wor place wellness. As a psychotherapist and employee support practitioner, I have been engaged in both one to one therapeutic support, and assisting workplace groups to manage their stress, build resilience and safeguard their mental health. Wor place wellness, as I define it, is an atmosphere which allows staff to ourish and utilise their s ills where they feel engaged, productive and effective in their wor . lexible benefits are the norm, but it is not about staff having longer lunch brea s and arriving in to wor when they feel li e it. It is about being treated well and respected so that employees want to perform to their full potential. It is also about ac nowledging and addressing issues including stress and poor communication, to ensure solicitors can perform in their workplaces and manage their busy wor loads. As the economy has improved, staff retention has become an issue, so it is imperative that employers attend to staff welfare. Louise helan, chief executive aypal Ireland said at a recent conference eople are how we get things done . aypal employs 2, people, but it too is focusing on staff retention as the competition for s illed wor ers continues to rise. A study from organ cKinley in 2 predicted that nearly two thirds of millennials plan to leave their current ob within three years. Therefore, there is no side stepping that staff need to be ept happy and

42 the Parchment

engaged, to ensure a wor place is fully effective and functioning well, and that people want to stay. Staff want to be part of a wor place where they feel valued, where there is a positive atmosphere, where everyone co operates, and where issues are addressed all vital elements for an effective team. Wor place wellbeing is good for staff, and good for the firm, so it’s win win all around There are easy steps that any firm can ta e to increase wor place health. One common stress for solicitors is around the demands presented by modern technology. Companies need to have a conversation about email protocols and policies. Junior staff feel obliged to respond immediately to a partner who sends an email, whether it be a wee end, evening, or last thing at night. The manager may well be clearing his or her des , but a more unior colleague may feel it is expected that they attend to the request immediately, regardless of the inconvenience or the disruption to home life. Solicitors at the conference also commented about the growing fre uency of client emails, and managing clients’ expectations about response times. Some had already employed automatic notifications, to inform senders that they would revert when possible. One very wise solicitor told us that emails were not available on his new phone, and he planned to eep it li e that. He chec s his emails only when at his computer. An email policy can help establish ground rules for out of hour re uests and responses. It can also formalise a company protocol on how emails are filed. Other common stresses include uggling volumes of wor , competing deadlines and being under

Winter 2018 dsba.ie Monica Haughey is an experienced psychotherapist and advises businesses on identifying and addressing issues that can arise within staff groups

pressure from different tas masters, all needing their wor to be priority. It is important that staff feel they can communicate with a manager, when they have too much on , or need more support. In some o ces staff aren’t communicating and feel unable to have the di cult conversation . These di cult conversations are extremely important, as they address issues when they arise, instead of allowing problems to fester. Clear, timely communication about an issue, whether it be on call rostering, leave requests, or even how someone felt they were spoken to, are all important. If they don’t happen, staff may become disgruntled or resentful and will inevitably wor below par. Issues between partners also need to addressed as they arise, whether it be balance of wor loads, fee income, or perceptions about some aspect of the partnership. Solicitors aren’t trained in communication s ills, but perhaps they should be. The most basic communication s ills re uire us to listen, to re ect, to be respectful and to manage our own emotions. We may not always li e the person we are in conversation with, but we still need to converse and see to address issues to ensure effective wor ing. Stress is inevitable in any busy wor setting and I like to remind people that a certain amount of stress is o ay. If we didn’t feel any stress it’s actually di cult to motivate ourselves. However, self care and awareness of when we might be carrying too much stress is also important. Keep an eye on when stress builds up and heed the warning signs that things have become too much . ou may feel overwhelmed and unable to ma e good decisions, or notice that your usual self care practices such as exercise or

Practice Management

eating have fallen by the wayside. At these times ta e a brea , identify the issues that are stressing you and seek support, whether it is a colleague, friend or partner or external professional help. A supportive wor place is one where there is good communication, exibility and support for staff as needed. Increasingly companies are offering employees exible hours and opportunities to wor from home, ta e career brea s or ob share. esearch is now showing that if companies can be exible, staff are happier and the firm is more attractive to both staff and clients. orward thin ing organisations and companies the Court Service H amongst them are implementing wellness polices and engaging outside consultants to assist with staff issues and create a healthier wor environment. A wellness policy is important in terms of spelling out how your firm intends to respond to wor place wellness. Initiatives and interventions that are helpful include

A supportive workplace is one where there is good communication, exibility and support for staﬀ as needed

• Wellness days/lunch time events tal s on mental health, building resilience, or health and fitness • An Employment assistance provider service a helpline number where staff can access a confidential service • Workplace facilitation and workshops. These are opportunities for staff to come together around a topic such as Managing the Demands of a Busy Workplace, or Building a Supportive Work Environment. These wor shops can be tailored to suit your wor place, and support staff in resolving specific issues. P the Parchment 43

Restoring the Status Quo The English Court of Appeal recently delivered an important judgment in a case dealing with internal investigations and legal professional privilege. Pamela O’Neill and Norman Fitzgerald assess the ruling and its decision on Irish law

n The Director of the Serious Fraud Office v Eurasian atural Resources Corporation Ltd, 2 8 EWCA Civ 2 the Court of Appeal overturning the first instance decision of the High Court, 2 EWHC B found that documents prepared during an internal investigation by a firm of lawyers and by a firm of forensic accountants were protected by litigation privilege. This decision provides welcome clarity regarding the scope and application of legal professional privilege in the context of criminal and civil internal investigations.

Why is this important? Documents that attract legal professional privilege are protected from inspection by, or disclosure to, either the court or to any other party. The privilege is one that is recognised by courts across common law urisdictions. It is a fundamental right Ahern v Mahon 2 8 I Miley v. Flood 2 2 I. . underpinned by public interest considerations. Legal professional privilege comprises two sub categories litigation privilege and, 2 legal advice privilege. 44 the Parchment

Background Eurasian atural esources Corporation Ltd E C had carried out an internal investigation after a whistle blower had made allegations of corruption and ﬁnancial wrongdoing in one of its subsidiaries in 2 . ollowing media reporting of the whistle blower’s allegations in August 2 , there ensued ongoing interaction between E C and the K Serious raud O ce S O . The SFO commenced a criminal investigation into the activities of E C in April 2 , and as part of that investigation issued notices to compel production of certain documents including E C’s internal investigation notes and interviews with employees. E C resisted production on the basis that the documents were protected by legal professional privilege speciﬁcally, litigation privilege . The S O advised by Eversheds Sutherland challenged these claims, arguing in part that the documents in dispute had not been generated for the dominant or sole purpose of defending litigation, a key requirement in the test for litigation privilege.

Winter 2018 dsba.ie Pamela O’Neill and Norman Fitzgerald are both partners in the commercial litigation team at Eversheds Sutherland

High Court The K High Court re ected E C’s argument that the documents were protected by legal professional privilege. The High Court found that the documents were not so protected because they were not created for the dominant purpose of litigation given that criminal proceedings were not reasonably in contemplation prior to the creation of the documents. The High Court applied the test for litigation privilege as set out in the UK Supreme Court decision in Three Rivers District Council v Governor & Company of the Bank of England o. Three ivers o. 2 KHL 8 . This test provides that litigation privilege only applies where a litigation is in progress or is in contemplation b the relevant communication was made for the sole or dominant purpose of conducting that litigation; and, c the litigation is adversarial, and not investigative or inquisitorial.

Court of Appeal Litigation Privilege The Court of Appeal disagreed and unanimously upheld E C’s claim to litigation privilege on the basis that E C was right to say that legal proceedings were reasonably in its contemplation at the relevant time, and that the S O investigation could be regarded as adversarial litigation. The Court of Appeal stated that it is a question of fact as to whether litigation is the dominant purpose. The Court of Appeal also rejected the High Court’s view that where a document is created with the intention of showing it to the opposing party, that means that it cannot be sub ect to litigation privilege. The Court of Appeal held that legal advice given in order to avoid or settle proceedings was as much protected by litigation privilege as advice given for the purpose of resisting or defending proceedings.

Legal Advice Privilege The Court of Appeal decided it was unnecessary to consider whether legal advice privilege applied in

the present circumstances, given its ﬁnding that the disputed documents were already protected by litigation privilege. The Court of Appeal observed that any departure from the position of current guiding authority on legal advice privilege, Three Rivers o , would, in any event, re uire ﬁnal determination by the Supreme Court.

Impact This udgment restores the status quo to English law on litigation privilege as applied to internal investigations. This approach remains similar to that adopted in Ireland to date, such that documents created during internal investigations may attract legal professional privilege; provided that the document is created in contemplation of litigation. As to what constitutes litigation in the K, this decision confirms that the litigation must be adversarial. The Irish courts on the other hand have held that a broader approach is re uired Ahern v Mahon 2 8 I uinn & Ors v IBRC & Ors 2 IEHC The Director of Corporate Enforcement v Leslie Buckley 2 8 IEHC . Litigation privilege has been held to apply to documents created in the context of tribunals of in uiry and regulatory investigations i.e. non adversarial, such as investigations by the Director of Corporate Enforcement . What is also of interest to Irish corporations and their advisers, is confirmation that legal advice given to avoid or settle litigation and materials intended to be shown to a regulator or opponent can be covered by litigation privilege. This is consistent with previous soundings from the Irish High Court that documents presented to the other side as part of an effort to avoid litigation still comes into being for the purposes of litigation .. and was privileged” ( organ v Murray ( o 2) IL 2 . The views expressed by the Court of Appeal offer an important insight into how English courts might approach similar issues in future cases, and so are relevant to all corporates generally, but are of particular importance to those engaged in internal investigations. P

Litigation

What is also of interest to Irish corporations and their advisers, is conﬁrmation that legal advice given to avoid or settle litigation and materials intended to be shown to a regulator or opponent can be covered by litigation privilege

the Parchment 45

Practice Management

Niall Cawley is principal of Niall T Cawley Solicitors, Blackrock. He is a council member of the DSBA

Overhead Sharing ractitioners are aware of the standard operating models for self employed solicitors in business on their own account. Typically solicitors either work in a partnership or work as sole practitioners. However, iall Cawley sets out a middle way that of overhead sharing

It should be clearly understood that the Law Society has no role in running your practice while you are out on a protracted illness

46 the Parchment

he system of overhead sharing is one which I have worked in for over 23 years. Overhead sharing can involve more than two sole practitioners but for discussion purposes, what I outline below assumes just two. The advantages of such a system are as follows: 1. O ce facilities can be shared and there can be a common reception. The advantages are obvious in terms of the economies of scale. O ce rental is shared, reception costs are shared and buildings insurance, rates, etc can also be shared. 2. The second advantage is that cover is available from your colleague in the event that you are unable to deal with matters due to pressures of wor including your being double boo ed on a particular date . This would be a mutual arrangement. 3. Furthermore sickness and holiday cover should also be available on the same basis which is a mutual basis between colleagues. 4. It can be very convenient in circumstances where one solicitor is con icted in acting for two parties in the same transaction to be able to refer out to the other colleague. 5. You have a colleague to discuss problems with, get a second opinion from and who would augment your legal knowledge and experience. . You could put in place a disaster recovery programme again, on a mutual basis so that you could be assured that your practice would function especially where you, for example suﬀered a protracted illness. 7. The more colleagues that you interact with, the more connected you remain to the profession and developments that arise from time to time in practice thereby reducing any perceived isolation that you may suﬀer from time to time. 8. While not wishing to be negative, in going into this arrangement it is far simpler to withdraw from it if it does not work out, unlike having to dissolve a partnership for example. . Finally of course it can be a test run for partnership to see how you and your colleague work together before taking the plunge into formal partnership, an option that the arrival of limited liability for partnerships in the near future makes more attractive than before. In terms of the mechanics of it, the following suggestions are made: 1. One solicitor rents the building and then licenses a space by agreement with the head landlord to another solicitor or solicitors. 2. Service charge is then levied by the tenant solicitor

to the licensee. 3. Assuming there is space at reception they can each have secretarial support working there and the reception facilities can be provided by shared secretarial support. In the alternative, secretarial support can be shared and obviously there would have to be clear ground rules in relation to the time that secretarial support was spent on each practice. From a practical point of view, one solicitor would employ the secretarial support and would license that secretarial support to the other. 4. In terms of clients, the core issue to an arrangement like this is trust. The arrangement that has been put in place and works for us is a simple one in many respects. If a client of solicitor A approaches solicitor B and asks solicitor B to work for him, solicitor B cannot do so without the permission of solicitor A. This protects both parties and makes it absolutely clear that work cannot be taken by a solicitor from a client of the other solicitor without the other solicitor’s prior consent. 5. In terms of wor coming in off the street which certainly in this writer’s experience is rare enough that would be done on a strictly rotational basis. . On the subject of disaster recovery, little or no thought is given by many of our colleagues as to the likelihood of a serious illness or other disaster befalling you and what is to happen with your practice. It should be clearly understood that the Law Society has no role in running your practice while you are out on a protracted illness. It seems therefore that once an overhead sharing arrangement is up and running and the parties are comfortable with it, that can be extended into giving your colleague wider powers to look after your practice in the event of your suffering a protracted illness and vice versa. 7. Indeed ultimately it may also extend to appointing your colleague as practice executor of your estate limited to the operation of your practice, so that it can be wound down in an orderly manner and to the best advantage of your estate in the event of your untimely demise. Also your colleague may be appointed your practice attorney under an EPA, but again limited for the purposes of an orderly wind down of the practice and in each case the Law Society would have to be appraised of the situation. Overall I believe that there is a lot to recommend such a system to colleagues in the future and certainly based on my own experience, it offers most of the advantages of partnerships and few of its disadvantages. P

Winter 2018 dsba.ie

News

DSBA Younger Members Event A successful evening was had at the o ces of Morgan McKinley at Connaught House, Burlington Road on 18th October last. The Younger Members’ Committee of the DSBA held a seminar entitled From Private Practice to In- ouse Tips for Solicitors Making the Change which was MC’d by Barry O’Neill, former partner of Eugene F. Collins and now a professional mentor. The aim of the event was to oﬀer insights to solicitors considering moving in house, the diﬀerences between wor ing in house and in practice and to advise solicitors on career progression generally. The seminar also discussed how in house solicitors deal with increased regulation in the sports and betting industry, and the management of data protection compliance. Spea ers on the night were as follows

spea ers was that if you’re wor ing in house, you need to be able to thin on your feet and deal with issues uic ly and as they arise. The spea ers also cautioned that if you are moving in house, you need to be aware of your motives in doing so as wor ing in house is not for everyone and is very diﬀerent to wor ing in private practice. The spea ers were presented with owers and wine as a than you from the DBSA Younger Members’ Committee and everyone enjoyed wine, canapes and networ ing after the seminar.

Paul Ryan and Aideen Shanley

Cliona Guy, Barry O’Neill and Emma Storan

• Niamh Flood, director of legal services and head of data protection, CRH plc. • Cliodhna Guy, head of licensing, legal and compliance, Irish Horseracing Regulatory Board. • Emma Storan, senior legal counsel, Paddy Power Betfair plc. Bernardo Pina, legal recruitment consultant in Morgan McKinley discussed the salaries which might be on oﬀer to solicitors wor ing in house. The event was well attended by young practitioners with many uestions as ed of the panel of spea ers. One theme running from each of the

Deirdre Farrell and Lynda Nyhan

the Parchment 47

Adverse Possession Vigilance the Key Amy Bradley advises that vigilance is necessary to try to avoid claims for adverse possession of land. A recent decision by the Court of Appeal highlights the importance of looking after all legal formalities when a landowner dies

What is adverse possession? Adverse possession relates to possession of land which is inconsistent with the title of the true owner. In plain English, adverse possession involves taking possession of land when you are not the owner according to the title documents. If certain criteria are satisﬁed, a person in adverse possession of lands for a period of 12 years or more, can acquire the interest in the lands. The court will consider: 1. Whether the person claiming adverse possession was in exclusive possession of the land in question, to an extent su cient to establish an intention to possess the land for a continuous period of 12 years; and 2. Whether there have been any acts of possession by the true owner of the land that would break the period of possession contended for.

Hamilton v ACC Loan Management Ltd and Others [2018] IECA 127 ACC and two bankruptcy receivers appealed a High Court decision in favour of Mr Patrick Hamilton which found that he was in adverse possession of some 23 acres of land in Drumcanon, Co Monaghan. They lost the appeal. Patrick Hamilton’s father died intestate it appears in 2 when he was succeeded by his wife and ﬁve children. Patrick Hamilton’s mother became the personal representative of her deceased husband’s estate, which included around 100 acres of land. Although Mrs Hamilton took some steps initially with regard to her late husband’s estate, it seems that it was not until 2006 that she transferred the entirety of the deceased’s property into her name. This included the lands which later became the subject of the dispute between Patrick Hamilton and ACC. It appears that before his father’s death, Patrick Hamilton and his father had farmed the relevant lands together. And he continued to do so following 48 the Parchment

his father’s death. He grazed his cattle there, he had his own cattle herd number and he claimed numerous agricultural subsidies declaring in all of the application forms that he was the owner of the disputed lands. In October 2006, it seems that Hamilton’s mother transferred farmland including the disputed lands, to another son, Sean Hamilton. The lands were to be used as security by Sean Hamilton in respect of a loan facility with ACC. Patrick Hamilton gave evidence that he knew nothing of the transfer to his brother Sean until 2013, when a “for sale” sign was erected on the disputed lands on behalf of bankruptcy receivers appointed over Sean’s estate. In 2015, Patrick Hamilton issued proceedings against ACC and others, seeking a declaration that he was in adverse possession of the disputed lands and that he was entitled to be registered as owner of those lands. It appears to have been accepted by the parties in the High Court that the key question to be determined by the court related to the nature and extent of Patrick Hamilton’s possession of the lands and more particularly, whether he excluded his mother from control of the disputed lands and whether he demonstrated his intention to do so. The High Court found in favour of Patrick Hamilton and made a declaration that he was in adverse possession of the lands and that he was entitled to be registered as owner of the disputed lands. On appeal ACC submitted that while they accepted that Patrick Hamilton had been in occupation of the disputed lands for a period in excess of 12 years since his father’s death, the evidence showed that Mrs Hamilton remained in occupation of the lands and that Patrick Hamilton merely had permission from her to farm the disputed lands. ACC contended that Patrick Hamilton was engaged in a joint operation

Winter 2018 dsba.ie Amy Bradley is a partner in the litigation and dispute resolution department at LK Shields Solicitors

with his mother whereby he farmed the disputed lands with her consent. ACC also sought to rely upon the fact that Mrs Hamilton had transferred some land to Patrick Hamilton around 1994. They said that this transfer must be seen as a satisfaction of Patrick Hamilton’s entitlement to a share of his father’s estate on intestacy, and that thereafter, Patrick Hamilton had no claim to the estate, including the disputed lands. ACC claimed that the transfer in 1994 negated Hamilton’s claim to adverse possession. Patrick Hamilton contended that the land was transferred in 1994 so that he could apply for planning permission for a house on the land in his own name. In his judgment in the Court of Appeal, Mr Justice Peart stated the following: • That nobody else was in possession of the land with Patrick Hamilton, or shared possession with him and that Patrick Hamilton alone occupied the land. • That Patrick Hamilton had his cattle on the land and had his own herd number. • That Patrick Hamilton alone applied for various grants and payments and that he was the only child with an interest in farming. • That Patrick Hamilton treated the lands as his own lands and did so for the requisite period of 12 years and more. • That Patrick Hamilton had the necessary intention to possess the lands to the exclusion of all others

Property Litigation

and that this was not a case where his possession of the land was temporary or sporadic, it was permanent and exclusive. • That viewed objectively, Patrick Hamilton had the necessary level of physical control over the lands. Mr Justice Peart then considered whether there was any act of possession however slight, by Patrick Hamilton’s mother during the period of 12 years following her husband’s death in 1992 which could be considered to have interrupted Hamilton’s otherwise exclusive and single possession of the land, such that there was not continuous possession for the required period. In particular, Mr Justice Peart considered the question of the transfer of lands to Hamilton in 1994. The judge found that the transfer of land did not have any relevance to the question as to whether the Patrick Hamilton had demonstrated the necessary animus possidendi intention to possess over the disputed lands. The appeal was dismissed.

Comment This case demonstrates how important it is to attend to legal formalities upon the death of a landowner to ensure that there is clarity in relation to the ownership of land. Attending to formalities with a degree of speed should minimise the risk of disputes arising at a later date. P

It appears to have been accepted by the parties in the High Court that the key question to be determined by the court related to the extent of Patrick Hamilton’s possession of the lands the Parchment 49

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DSBA Parchment Magazine – Our award winning uarterly magazine which will eep you up to date with the profession and practice. DSBA Sports Events – Golf, tag rugby, soccer, cric et, tennis events to promote collegiality and friendship amongst solicitors. DSBA Social Events Events for solicitors throughout the year and our not to be missed annual conference. DSBA Submissions Our committees and council wor hard to represent solicitors and their interests 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.

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News

New OUTLaw Network OUTLaw is a network connecting LGBT and ally networks, committees and individuals in the Irish legal profession. The concept was created internally in EY by Aisling Walls and Peter Ryan who are both part of EY’s forensic and integrity services department. It has been inspired by EY’s work with the FuSIoN network which is a similar initiative in the financial services sector. With contacts in large law firms, Aisling and eter reached out to the following firms who formed the founding committee in order to set up O TLaw. The current ma e up of the committee has representation from Arthur Cox, McCann Fitzgerald, Eversheds Sutherland, A&L Goodbody, William Fry, Maples & Calder, Matheson Mason Hayes & Curran. While the initial committee currently consists primarily of solicitors from larger law firms based in Dublin, the goal is to broaden the participation to include regional firms, smaller law firms, barristers, student barristers and solicitors, in house legal counsel and so on. The founding committee has the following members eter yan, E Chair Aisling Walls, E Daniel Harrington, A L oodbody Cathal Daly, Arthur Cox

COURT OF APPEAL NOTICE Having regard to the current waiting times in the Court of Appeal for the hearing of appeals the Lists to ix Dates scheduled on 8th November 2018 and 15th November 2018 were deferred until further notice. In the meantime it remains open to any party in the cases included in those lists to avail of the procedure set out in Practice Direction CA to bring an application for directions leading to the allocation of a hearing date in the Court of Appeal. However, it should be noted that having regard to the current waiting times it is unlikely that any such hearing date will be before Michaelmas term 2020. G Manners Registrar of the Court of Appeal 52 the Parchment

aeve Delargy, Arthur Cox Barbara alvin, Eversheds Sutherland Christopher urnane, aples Calder len ogers, cCann itzgerald Sarah Begley, cCann itzgerald Stephen Tunstead, ason, Hayes Curran Tony Ross, Matheson and Gerard James, William Fry.

New City Sheriff The DSBA welcomes the appointment of Joe Bur e as the new City Sheriff. Joe replaces James Barry following his retirement. Joe has practised in Smithfield for years along with oel acCartin in MacCartin & Burke and will work alongside another Smithfield practitioner, ergus allagher who has served as County Sheriff for the last six years. Meanwhile former DSBA council member John O’ alley was appointed evenue Sheriff for the County of Mayo earlier on in the year.

OUTLaw’s mission is to promote and drive the inclusion of LGBT professionals across the Irish legal profession. A formal launch event is planned in January 2 . The DSBA wishes O Tlaw every success and congratulate its founding members on their initiative.

Winter 2018 dsba.ie

News

Lawyers Against Homelessness A most successful C D event was held on 22nd November last at the Capuchin Day Centre by the Lawyers against Homelessness. Lawyers against Homelessness was formed in November 2017 with a view to help the homeless and in particular, to assist Brother Kevin in his eﬀorts at the Capuchin Day Centre. Over the last 12 months, the Lawyers against Homelessness have held a number of C D conferences, all of which were hosted by Brother Kevin in the Capuchin Day Centre. any well nown lawyers have given of their valued time and expertise including ichael cDowell, SC, ichael Quinlan, former President of the Law Society, Mr Justice Sean Ryan, former President of the Court of Appeal and Mr Seamus Woulfe, Attorney General to name a few. During the past year, nearly , has been raised of which has gone direct to Brother Kevin. The event on 22nd November welcomed special guests Mr Charles Flanagan, inister for Justice and E uality r Seamus Woulfe, Attorney eneral s Justice Marie Baker, judge of the Court of

Appeal and Kate Colleary, co founder and director of Frontier Privacy. Spea ers at the C D event included ichael Cush S.C. inbarr ox S.C.

Constance Cassidy S.C. and Sophie Honohan B.L. urther C D events are planned during 2 with the next one on 21st March 2019.

Fifth Edition of Kelly: The Irish Constitution Launched A special reception was held at the Distillery Building in Smithﬁeld on 22nd November to commemorate the launch of the ﬁfth edition of one of Ireland’s most revered legal manuscripts, Kelly: The Irish Constitution. Hosted by the Attorney General, Mr Seamus Woulfe, SC, the event was well attended with almost 2 members of the legal profession gathering to commemorate this sacred legal text and to pay their respects to its original author, the late John Maurice Kelly. Anchored by constitutional law stalwarts Dr erry Whyte of Trinity College and erard Hogan, Advocat eneral at the ECJ, the new edition has welcomed aboard Drs achael Walsh and David Kenny, who are also professors of law at Trinity. Delivering his opening remar s,

Attorney General, Seamus Woulfe commented that it was a ‘truly great honour’ to speak at the launch of what is ‘probably the leading textbook in Irish law’. Having commenced his studies in 8 , the same year the ﬁrst edition of Kelly came out, he recalled feeling as if his class had a distinct advantage over previous years. The Attorney General then paid tribute to the late JM Kelly, a man who distinguished himself in a multitude of diﬀerent roles including time spent as a lecturer at CD, a senator, TD and parliamentary secretary, as well as a brief stint as Attorney General. The fifth edition of elly The Irish Constitution is published by Bloomsbury Professional.

The Attorney General, Mr Seamus Woulfe, SC at the launch of Kelly: The Irish Constitution, 5th edition

At the launch of Kelly: The Irish Constitution, 5th edition: (l-r) The four authors, Advocat-General Mr Justice Gerard Hogan, Dr Rachael Walsh, Dr David Kenny and Dr Gerry Whyte the Parchment 53

DSBA Probate and Tax Seminar

The DSBA Probate and Tax Committee hosted a CPD seminar on 4th October 2018. Tax adviser Brian Broderick dealt with the Revenue Commissioner’s approach to various issues in the probate process. Linda Kirwan from the Law Society’s talk was themed How to be Friends with the Law Society and Michelle McLoughlin, M McLoughlin and Co spoke on GDPR obligations specifically for the probate practitioner.

Photography: Michael Finn

Left: Linda Kirwan; Brian Broderick; Michelle McLoughlin

Left: Joanne Sheehan, Cornelius Sheehan & Co; Lorna Shannon, Gaffney Halligan. Far left: Margaret McGinley, McGinley & Co; Owen Carty, Owen Carty & Co; Pauline Brady, John J Quinn & Co

Right: John Kelleher, John F Kelleher; Trevor Dunne, Trevor Dunne & Co. Far right: David Callinan, Revenue Commissioners; Mairead Duffy, Revenue Commissioners

Left: Claire O’Connor, Gallagher Shatter; Colin Muldoon, Maguire Muldoon; Grainne Cunningham, J R Sweeney. Far left: John M Bourke, Bourke & Co; Martin Ceillier, M & S Ceillier

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Winter 2018 dsba.ie Photography: Michael Finn

Left to right: Eamonn Maguire; Brian Meldon; Tony O’Sullivan; Jerome O’Connor

DSBA Property Law Seminar

The DSBA Property Law Committee hosted a CPD seminar on 16th October 2018. The seminar was entitled “Commercial Leases – Rent Review, Service Charge and Prelease Enquiries. Property case law Ipdate.” The speakers were Tony O’Sullivan, Beauchamps; Paul Hutchinson, BL; Jerome O’Connor, chartered surveyor and Brian Meldon, chartered surveyor.

Left: Barry Fox, CB Robinson Solicitors; Paul Smyth, Smyth & Son. Far left: Áine Keenan, Noonan & Son; Caroline Lindsay, CSSO

Right: Brian Crowe, Brian Crowe & Co. Solicitors; Sean Twomey, Eugene F Collins. Far right: Elaine Given, Shannon & O’Connor; Roisin Bennett, Reddy Charlton

Left: Shea Cullen, Shea Cullen Solicitor; David Murphy, Corrigan & Corrigan; Sarah Flynn, Corrigan & Corrigan. Far left: Jim Gollogley, JS Gollogley Solicitors; Brian Roe, Hughes & Liddy

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The DSBA Younger Members’ Seminar

The DSBA Younger Members’ Committee held a CPD seminar on 18th October 2018. The seminar was entitled “From Private Practice to In House: Advice for Solicitors Making the Change.” The seminar was kindly hosted by Eugene F Collins at their offices on Burlington Road, Dublin 4. Professional mentor and former partner at Eugene F Collins, Barry O’Neill was the MC for the seminar event. Speakers were Niamh Flood, director of legal services and head of data protection at CRH plc; Cliodhna Guy, head of licensing, legal and compliance at the Irish Horseracing Regulatory Board and Emma Storan, senior legal counsel at Paddy Power Betfair plc

Left to right: Fergal Philips, Morgan McKinley; Cian Lindsay, Amundi; Bernardo Pina, Morgan McKinley

Left: Lisa Conkey, DAC Beachcroft; Anne Marie Browne, Hayes Solicitors; Lynda Nyhan, Mason Hayes & Curran Far left: Laura Horan, Horan Darcy; and Niamh Flood, CRH plc

Left: Jacinta O’Sullivan, PF O’Reilly & Co; Jaime Flattery, McCann Fitzgerald; Mairead McShea, McCann Fitzgerald Far left: Ruth Prendeville, Hayes Solicitors; Aideen Neylon, Veterinary Council of Ireland

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Winter 2018 dsba.ie Photography: Michael Finn

Left to right: Speakers Judge David Barniville; Jenny Mellerick; Kate McKenna; Nathy Dunleavy

DSBA Litigation and Commercial Law Seminar

The DSBA Litigation and Commercial Law Committees hosted a joint CPD seminar on 30th October 2018. The seminar was entitled “Procurement Law – Practice and Disputes.” The speakers were Kate Leahy, Matheson; Jenny Mellerick, McCann Fitzgerald and Nathy Dunleavy, BL. The chairperson of the seminar was Mr Justice David Barniville.

Left: Eoghan Ó’ hArgáin, Eugene F Collins; Judge David Barniville; Paul Ryan, DSBA Far left: Ashleigh Ward, Gleeson McGrath Baldwin; Lisa Maloney, Byrne Wallace

Right: Ruth Lynch, CSSO; Raymond Horan, CSSO Far right: Nathy Dunleavy, speaker; Killian Reilly, DSBA

Left: Sean O’Shea, SDCC; Declan O’Reilly, Criminal Assets Bureau Far left: Declan O’Reilly, Criminal Assets Bureau; Kate McKenna, Mathesons

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DSBA Annual General Meeting

The DSBA held its annual general meeting on October 24th 2018 at the Westbury Hotel. A capacity crowd was in attendance. Greg Ryan took over the reins as the new DBSA President for the year ahead.

Photography: Michael Finn

Left: Joe O’Malley; Susan Martin; Greg Ryan; Tony O’Sullivan; Diego Gallagher

Left: David Stafford; Sarah Bruen Far left: Ciara O’Kennedy; Keith Walsh

Right: Diego Gallagher; Deirdre Walsh Far right: Elaine Given; Justin McKenna

Left: Ken Byrne; Michael Moran; Justin McKenna Far left: Joe O’Malley; Avril Mangan

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Winter 2018 dsba.ie

Left: Leonora Doyle; Susan Martin and Joan Doran Far left: Richard Bennett

Right: Laura Horan; Brian Ormond; Ronan McLoughlin; Fintan Lawlor Far right: Killian Reilly; Sean Greene

Left: Pat Igoe; Matthew Kenny Far left: Maura Smith and Robert Ryan

Right: Richard Bennett; Judge James McCourt Far right: Richard Hammond; Susan Martin; Michael Moran

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DSBA Family Law Seminar

The DSBA Family Law Committee hosted a CPD seminar on 1st November 2018. The seminar was entitled “Family Law Essentials for Solicitors” – Practical guidance on Pensions, Mediations and Solicitors Managing their health and wellbeing. The speakers were Olga Daly, actuary; Fiona A McAusian, director of the Legal Aid Board’s family mediation service and Caoimhe Nic Dhomhnaill, child psychologist.

Photography: Michael Finn

Left: Speakers Olga Daly; Fiona McAuslan; Caoimhe Nic Dhomhnaill; Avril Mangan; Judge Susan Ryan

Left: Caroline DavinPower, Marcus Lynch; Ailís Burke, Walls & Toomey Far left: Niall Courtenay, Taylor & Buchalter; Declan Foley, Mediatable; Carol McGuinness, Early & Baldwin

Right: Cliona Costelloe, McKeever Solicitors; Andrew Coonan, Coonan Cawley Solicitors Far right: Niall Black, Richard Black; Mary Cullen, Cullen & Co; John Kelleher, Kelleher

Left: Olga Daly, speaker; Peter Quinn, Sheridan Quinn Far left: Maura King BL; Peter Doyle, Peter Doyle Solicitor

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Winter 2018 dsba.ie Photography: Michael Finn

Left to right: Speakers Jenny Foley; Simon Mills SC; Mr Justice Tony O’Connor; Eamon Harrington; Avril Scally; Professor Jogin Thakore

DSBA Litigation Seminar

The DSBA Litigation Committee hosted a CPD seminar on 21st November 2018. The seminar was entitled “Medical Negligence – Recent Developments.” The speakers were Simon Mills, SC; Professor Jogin Thakore, consultant psychiatrist and Eamon Harrington, Comyn Kelleher Tobin.

Right: Jenny Foley, State Claims Agency; Avril Scally, Lavelles; Katie Toher, State Claims Agency Far right: Anne Mandel, Richard Jones; Eamonn Harrington, speaker

Left: Ronan Kileen, Killeen; Niall Corr, Niall Corr & Co. Far left: Caitriona O’Brien, Hayes Solicitors; Ruth Meehan, Hayes Solicitors

Right: Manus Sweeney, Manus Sweeney & Co; Niall Courtney, Taylor Buchalter Far right: Deirdre Nally, Hayes; Jennifer Colfer, State Claims Agency

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‘Tis the (Silly) Season?

hen the winter edition of the Parchment hits your desk, it usually signifies the last days of o ce disco. We can hopefully all loo forward to a week’s rest, at least, and wind down after an extremely busy final uarter. Once the tur ey sandwiches have been eaten and you’re fighting over the last few Cadbury’s oses in the bottom of the tin the coffee ones in my house, by the way you might find yourself with some free time on your hands, particularly if you happen to get snowed in. If you are of such a mind, you might find it a worthwhile exercise to log on to the DSBA website and peruse the treasure trove that is the Parchment archive. Stretching bac to 2 , it is a wholesome history of the past decade, some of the most di cult years in practice for so many of the profession. One of the non useful things you can do first is to do a Ben amin Button on yourself and ic through all the photos of yourself at various DSBA seminars. On second thoughts, this may be unwise and may have you reaching for the Christmas brandy if the last years have ta en their toll! I was loo ing for an article that I remembered from a recent edition when I discovered the archive. I happened to come across the spring edition 2 when I was an energetic DSBA council member, I came across an article compiled by myself entitled Conveyancing Crossroads . To set the scene, I was chairing the DSBA Conveyancing Committee as it was nown then long before we moved to the loftier more cerebral title of roperty Law Committee and we had ust come off the bac of the annus horribilus that was 2 . Along with many of my colleagues, I had been made redundant and had no choice but to contemplate life, the universe and everything And li e those colleagues I had found a temporary contractual home in a ban dealing with the fallout of what I will refer to as all that went before . A A had been created and due diligence was beginning in earnest in every ban across town. aced with an enormously

62 the Parchment

probing uestionnaire, it soon became apparent that all that went before was not good. ressure was coming at practitioners from every source, a new Land and Conveyancing Law eform Act to contend with, ban s were beginning to enforce, new II regulations had made it impossible for many colleagues to get commercial property insurance, and an underta ing was a dirty word. It was against this bac drop that the Conveyancing Committee at the time canvassed its members for opinions by holding a public open forum. Demand was so strong, we had to hold two We compiled the results and my article was the result of our findings. There were star revelations of sloppy conveyancing practices, trainees or secretaries completing certificates of title, completing on underta ings upon underta ings, basic errors, no ualifications on title for defective titles and story after story of being undercut by bargain basement fees offering bargain basement standards and the commencement by ban s of breach of underta ing claims. It was a very fraught time, during which a senior ban executive who saw my article too issue with it and reprimanded me as to its content and to his mind their guiltless position. Ah yes, it was the best of times and it was the worst of times! Over the next few years a wave of measures were introduced to safeguard the position. The Secured Loans Transactions regulations the nderta ings in Commercial Loan Transactions regulations the Eligible Liabilities uarantee Scheme, Conveyancing Con ict of Interest regulations, II regulations, anti money laundering legislation and the Legal Services egulation Act as well the amendments made to the Contract for Sale, the eneral Conditions and the e uisitions on Title. The spring 2 edition contained a wave of articles that represent which point in time including a motivational resident’s message from John Spanner O’ alley on ta ing stoc of lessons learned and an article on how to insure a vacant property as over of residential properties at the time were concluded to

Winter 2018 dsba.ie Julie Doyle is a head of legal services at Cluid Housing. She is a member of the Parchment committee

The View

Let’s remember the message of the DSBA is above all, collegiality

be vacant. This is in contrast to the current position as insurance is the least of your worries as I expect an article in due course on what to do if Occupy Dublin have ta en your property As the saying goes “plus ca change, plus c’est la meme chose”. We are about to head into spring 2 , almost years later and what lessons have we learned We don’t need an expensive firm of management consultants creating process maps and decision trees to tell us that unless we are careful history has a snea y habit of repeating itself. We are facing other challenges. or one, there is a distinct lac of experienced transactional property lawyers have you tried to hire a senior property associate recently So many property lawyers too the opportunity in the past years to ups ill and move into new areas of law so that they could not be burned at the ame again. We now that due to the lac of demand many trainees stopped electing advanced conveyancing as a module in the Law Society. any of our newer colleagues’ property training involved completing loan sale due diligence uestionnaires, ta e it or leave it fire sale auctions or issuing a typical receiver Computer says o contract for sale and the fine art of drafting special conditions in a contract for sale, the basic nowledge of a chain of title in a documents schedule has been lost to a certain extent. Don’t get me started on drafting s ills There is a nown gap in nowledge that now exists in our profession. We owe a responsibility to our younger colleagues to mentor them where they have not been exposed to this type of wor previously. We owe a responsibility to ourselves to ma e sure we are up to speed with recent changes and developments in the law. The last three years have seen a surge firstly in commercial property, particularly in Dublin with o ce space now at a premium and a host of landlord and tenant wor . In the last 8 months and with the political pressure on the housing crisis, we are now seeing an upswing in residential development wor . Along with this upswing sees a host of new developer

ids on the bloc , een to ma e as much money as they can while the economy persists, in the nowledge that by the time the overnment can agree on a sustainable path for the future of construction in Ireland, the new boom may have passed. Here is where we need to remember all that went before . It is important to pause, to ta e a breath and be the level head amongst all the frenzy, to not cut corners to get the deal done, to know your duties and obligations as a conveyancer property lawyer or whatever we li e to call ourselves now, as well as representing your client. Do you now where your obligation lies to satisfy yourself Doran v Delaney anyone . It’s o to say no to your clients, particularly when it’s your II that may be at sta e. ut your controls in place. aintain your ris registers, don’t give an underta ing where it’s not appropriate. ead the recent Law Society O conveyancing manual now in its 8th edition, it’s a fascinating read, update yourself on the Law Society practice notes. The Law Society Conveyancing Committee has a dedicated tab on the Law Society website with all manner of usual up to date precedents and information. emember all that went before and all that lies ahead for you with the changes to the general conditions of the contract for sale and pre contract title investigation sign up for a roadshow now . It’s going to be a busy January When the craziness of the ﬁnal wee s in December have got you down and you feel li e the miserly Scrooge, who if he could wor his will “every idiot who goes about with Merry Christmas on his lips should be boiled with his own pudding and buried with a stake of holly through his heart”. I would rather give you a message of hope, much li e Spanner O’ alley’s message in 2 . Let’s remember the message of the DSBA is above all, collegiality. emember it’s your colleague on the other side of a fraught transaction. emember the message of hope from Scrooge “If man’s course be departed from, the ends will change I will live in the past, the present and the future. The spirits of all three shall strive within me. I will not shut out the lessons that they teach.” P the Parchment 63

Closing Argument Stuart Gilhooly

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

Adding Insult to Injury

“T

he greatest trick the Devil ever pulled was convincing the world he didn’t exist . The Usual Suspects,

Back when Kevin Spacey was an up and coming actor, and not a #MeToo salutary tale, he headlined the iconic whodunit movie which centred around the identity of Keyser Soze and whether he was even real or a fictional figment of Spacey’s imagination. The premise of the movie was to confuse, obfuscate and draw the audience’s attention away from the real culprit. This column has spent an inordinate amount of time in the last few months defending the rights of personal injury victims on the nation’s broadcast media. There is an almost insatiable appetite to denigrate the level of damages in this country and link compensation for whiplash injuries to the actions of a tiny minority of fraudulent claimants. This agenda is being driven by an insurance industry cleverly and subtly directing its audience to avert its gaze from the actions of its own members. When the Oireachtas Committee on Finance heavily criticised the insurers for its lack of transparency and complete absence of explanation for its premium increases some two years ago now, they went away, licked their wounds and came back with a plan. They were assisted by a con uence of events leading to a perfect storm. The first of these was the setting up of the Personal Injuries Commission which was tasked with the political equivalent of an open goal with no goalkeeper. Comparing damages with the UK was always going to produce only one result. A large disparity between one and the other. This led to the inevitable conclusion 64 the Parchment

that heavily reducing damages will reduce premiums. While this may appear logical on the face of it, it’s not quite as simple as that but more of that later. The second element was an increased focus on fraudulent claims. While it is impossible to tell whether there are more frauds in recent years or not, what is clear is that insurers are quite rightly now investigating them more thoroughly and ensuring that they run in court to dismissal or are withdrawn. The advent and subsequent explosion of online media has ensured that we are never more than a click away from another set up accident or Facebook bungee jump. Fraudulent claims are the scourge of our business. They affect us and genuine claimants far more than the insurance industry. Frauds should be prosecuted and receive the strongest sanction possible. But they are a tiny minority. In 2016, Insurance Ireland sent 167 cases to Gardai who scandalously appear to have prosecuted no one. However, this represents less than . of all claims that year. By definition, . of claims that year must have been genuine. The third plank to the strategy was challenging the level of damages in the Courts. Successful appeals of many High Court decisions has seen the focus shift from data shy insurers to compensation for the victims of their insured’s negligence. The reality is that claims costs, counterintuitively, ma e little difference to the level of premiums. If it was a huge factor then the rise of 2. per year in claims costs between 2011 and 2016 could not explain the swingeing premium in ation we have seen over that period. If damages were a large constituent in premium calculation, then one would expect premiums in the UK to

If damages were a large constituent in premium calculation, then one would expect premiums in the UK to be a fraction of what they are here

be a fraction of what they are here. Instead, over a similar time period, they have been consistently higher on average. Why then is it, that the only narrative we ever hear is that reducing damages is the only way to reduce premiums? The insurance industry have been very clever. They have faded into the background and sent out the likes of ISME and the Alliance for Insurance Reform to bat for them. Neither of these organisations ever appear to actually criticise the people who are charging the extortionate premiums but rather they turn their focus on reducing damages for victims of negligence. The insurance industry have pulled off one of the most ingenious and elaborate confidence tric s this column has seen. By pointing in the opposite direction while they bury their figures in a fugue of unintelligible and incomplete data, they focus on the lowest common denominator, the victim of soft tissue injuries. Pejorative commentary denigrating the often devastating effect that such injuries can have on what are often vulnerable people is manna to a media looking for easy headlines where fake news finds a fertile breeding ground. While the insurance industry has a PR operation that would be the envy of a government, the victims have no one. Except us. And we are always viewed through the prism of scepticism. The insurers have this column’s admiration. They have outfoxed us. They won’t fool our judiciary though, the last hope the increasingly beleaguered victim has got. Spoiler Alert. Kevin Spacey was Keyser Soze all along. He just made the whole audience believe it wasn’t him. It’s everyone else. Definitely not him. P

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