Parchment Winter 2023

Parchment DSBA.IE

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D UB LIN SOLICITORS B AR ASSOCIATION MAGAZ INE | WIN TER 2023 | ISSU E 98

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Winter 2023 dsba.ie

From the Editor

W

elcome to the Winter edition of the Parchment. I would first like to acknowledge the increase in criminal legal aid fees as announced by the Government in its ctober Budget.

A 10% increase in fees will be effective from early 2024 with an assurance from the Minister for Justice Helen Mc ntee that such increase will be built upon and further strengthened in the coming years.

In this edition, we interview three titans. eith Walsh has a wide-ranging discussion with the former President of the Supreme Court of ngland and Wales, The Rt Hon. Baroness Hale of Richmond. evin Higgins chats with Dun Laoghaire s Ronnie Lynam on his retirement from practice after 40 years whilst Julie Doyle meets fellow county-man, Dr. Michael Connor, whom I trained under during my apprenticeship at Matheson rmsby Prentice, now Matheson.

The announcement in late November that the new Dublin Family Courts development at Hammond Lane is to go ahead is to be warmly welcomed. The new Family

Courts complex will have 19 court rooms, mediation and support facilities, office accommodation, Judges, staff and custody rooms. It has been a long campaign by family law practitioners in the Capital, none more so than eith Walsh who gives his tuppence-worth in a closing argument on page 62.

We also feature articles on the legal duties of Charity Trustees, a new species of assets digital assets, and the new Contract for Sale General Conditions 2023.

May I wish you and your loved ones a peaceful and relaxing Christmas after a long year. Here s to a successful and healthy 2024 for one and all.

John Geary jvgeary@gmail.com

DSBA COUNCIL 2023/2024

MATTHEW KENNY DSBA President

NIALL CAWLEY DSBA Vice President

PAUL RYAN CPD Director Commercial Committee

JOAN DORAN Honorary Treasurer

CIARA O’KENNEDY Honorary Secretary

AVRIL MANGAN Chair of Practice Management Committee

JESSICA HICKEY Chair of Commercial Law Committee

CIARA HALLINAN Chair of Criminal Law

EIMEAR O’DOHERTY Chair of Inhouse Solicitors Committee

PATRICK LONGWORTH Chair of the Younger Members Committee

STEFAN O’CONNOR

ÁINE GLEESON Chair of Property Law Committee

CLIONA COSTELLO Chair of Family Law Committee

MARCUS HANAHOE Chair of Chair Litigation Committee

ZOE HUGHES Chair of Probate Committee

PUBLISHED BY The Dublin Solicitors Bar Association, Unit 206, The Capel Building, Mary’s Abbey, Dublin 7

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

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

All prices are correct at

time of going to press.

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

The DSBA has moved….

After several years on Dawson Street, the Office of the DSBA has moved to the Capel Building, Dublin 7.

Please note our new address and DX below:

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

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WHEN YOU HAVE FINISHED WITH THIS MAGAZINE PLEASE RECYCLE IT.

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Winter 2023

Contents 6

Towards a better reform of the Family Law Justice System

History in the Making

16

Contract for Sale 2023

20

The Digital Footprint

24

Champion of the People

30

Paddy Donaghy – an Appreciation

Julie Doyle interviews Dr. Michael M. O‘Connor, a former leading partner at Matheson and now an independent researcher and author of several books on social history, crime and punishment

The Law Society of Ireland launched its new edition of the General Conditions of Sale in October 2023. Clodagh O’Hagan examines the new conditions

Stephen Spierin BL analyses a new species of assets which has emerged – digital assets

Keith Walsh interviews the Rt Hon. Baroness Hale of Richmond DBE, known as Lady Hale – former President of the Supreme Court of the United Kingdom from 2017 until her retirement in 2020

A tribute to the late Paddy Donaghy

32

Contractor or Employee?

Alan Devaney scrutinises five questions for determining employment status and gives an insight to each one arising from a recent Supreme Court decision Dublin Solicitors Bar Association Unit 206,The Capel Building, Mary’s Abbey, Dublin 7, Ireland T: 01 670 6089 E: info@dsba.ie W: www.dsba.ie

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page 10

HISTORY IN THE MAKING... DR MICHAEL M. O’CONNOR

Keith Walsh SC sets out his concerns for access to justice in the Family Courts Bill 2022

10

The legal profession, including Irish lawyers, played a very prominent role in historical slavery

10

Winter 2023 dsba.ie

Contents

REGULAR FEATURES 01 Editor’s Note 04 President’s Message 52 News 56 In Practice 59 Photocall 62 Closing Argument

24 36

The Quintessential Advocate Kevin O’Higgins caught up with Ronnie Lynam and chatted to him about his recent decision to retire after 40-plus years of criminal law advocacy

40

Personal Injuries Summons Renewal Avril Scally assesses the recent decision of the High Court in Murphy v Depuy Ireland Unlimited Company [2023] IEHC 220

42

New Irish Investment Screening Regime David Mangan outlines the purpose of the new Irish investment screening regime and how it will be implemented in practice

44

36

The Legal Duties of Charity Trustees Sarah McCague assesses the legal duties for Trustees of Charitable bodies and gives some practical steps to follow

46

Remote Swearing of Affidavits Extended to Circuit Court The provisions of the Circuit Court Rules dealing with affidavits have been recently amended. Gráinne Dever and Robyn Pim evaluate the new Rules

48

The Pitfalls of Shares – Pre and Post Death Janet O’Byrne outlines some challenging issues when dealing with shares pre and post death and how to avoid them

42 the Parchment 3

Message from the President

Keeping Connected

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elcome to this winter edition of The Parchment. I am delighted to be elected as President of the Dublin Solicitors Bar Association.

I want to pay tribute to my predecessor, Susan Martin. Susan undertook an incredible programme of work on behalf of our members during her year as our President.

To name but two issues, our members will benefit from her work highlighting issues with the new system for enduring powers of attorney and the efforts she made to ensure solicitors from bar associations across the country came together to support the Bar Council in calling for action on criminal legal aid pay restoration.

During 2023 the DSBA hosted a large number of CPD events and a special thanks must go to our programme’s director Paul Ryan and all of our committees for all of their voluntary work. Thank you for the continued support from all of our 3000 members, who come from the large commercial firms, sole practitioners, smaller specialist firms throughout Dublin, in-house solicitors and members from outside of Dublin.

We are adapting to the new world of online and in-person seminars. ur members’ working week has changed as must the manner in which we all continue to learn through CPD events from our colleagues. It is the hope of the DSBA that our members will continue to find the time to attend inperson seminars throughout 2024.

In 2023 the DSBA hosted our annual dinner to thank our Judiciary for their service. In these difficult times with the rule of law coming under attack in ordinarily stable democracies it is important to take the time to be grateful for a strong and independent Judiciary.

During 2023 we were pleased to host a number of social events, including our annual ball, two social hikes, the annual John F Buckley cricket match between the DSBA and the Bar Council, a number of golf events organised by past President Eamonn Shannon and our football tournament organised by Patrick Longworth which saw an exciting final between Arthur Cox and Mason Hayes and Curran. We also hosted our annual conference in London and, as always, we were delighted to host our annual dinner to celebrate solicitors who qualified more than 50 years ago.

So, as we move towards a well-earned rest during the Christmas season, we consider 4 the Parchment

what lies ahead for 2024. I would hope it is more social events and more seminars all of which may offer us more opportunities to meet and talk. As always, the DSBA will do all it can to work for our members on issues that affect the manner in which we provide legal services to our clients. ur volunteers on our committees and council have got their ear to the ground but we also welcome feedback from our members, so if there is an issue that is of concern to you then please do contact us.

A special thanks to Maura, Anna and laine for their wonderful work in our office without them we could not put on all of our events throughout the year.

If any member questions their desire to stay in touch and keep connected, perhaps considering that they have too much work to do, then perhaps they should take the time to read some of the commentary written recently of the detrimental effect of loneliness on our health. Post Covid and within the context of a challenging social and economic environment many people feel isolated and withdraw from society. Many

younger people are growing up confusing the virtual world with the real world.

Solicitors and all those who work within the justice system are not immune from experiencing the effects of a less sociable world. We also have a ‘consult a colleague’ on 01-2848484 which is a voluntary and confidential phone service for solicitors in distress.

The DSBA exists to ensure solicitors feel part of a community that will protect them and will provide a place for them to talk, learn and socialise.

It is my hope that between myself and our Council and Committee we can reach out and meet as many of our 3000 members during 2024. Preferably in person!

At this time of year, we remember those family, friends and colleagues who have left us or who have been bereaved.

I hope that you will have a restful and peaceful Christmas. Thank you for your support in 2023, and I hope we all experience a happy and peaceful 2024.

Matthew Kenny, DSBA President

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Towards a better reform of the Family Justice System As a leading family law solicitor and campaigner for reform of the family justice system, Keith Walsh SC sets out his concerns for access to justice in the Family Courts Bill 2022

T

he Family Courts Bill 2022 provides for the establishment of a Family High Court, Family Circuit Court and Family District Court as divisions within the existing court structures. The aim is the development of a more efficient and user-friendly family court system: a system that puts families at the centre of its activities, facilitates access to specialist supports and encourages the use of appropriate dispute resolution in family law proceedings. Most of the changes proposed are long overdue and to be welcomed.

However, there is one major concern which if not addressed and changed will result in the much-needed changes to the family justice system having the opposite effect to that intended. This major concern is the proposal to move divorce, judicial separation and cohabitation cases from the Circuit Family Court down to the District Family Court by increasing the jurisdiction of the District Court. There is a serious concern among the stakeholders in the family justice system that this will increase delays, effectively restrict access to the family courts and reduce access to justice by those seeking a divorce or judicial separation and will displace existing cases such as domestic violence, access, custody, guardianship, maintenance and childcare cases in the District Court.

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Concerns

1. The District Family Court is already overcrowded, and an influx of divorce and other cases will displace existing family law cases causing further delays for all family litigants and reducing the quality for all litigants a. An increase in the volume of cases The latest Court Service figures show an increase in civil litigation in the District Court in 2022 of 39% from 2021. While this is an unprecedented increase it shows the pressure on the District Court system. Even if we limit our examination to the numbers in the area of family law cases, we can see that currently there are the following numbers of family law cases which started in the District Court in 2022: Guardianship, custody, access Maintenance Domestic Violence Childcare

10,822 5,862 23,536 14,985 55,205 in total

If the current Circuit Family Court divorce and judicial separation cases alone, which were 5,966

Winter 2023 dsba.ie Keith Walsh solicitor and SC practises in the area of family law in Dublin where he is a partner in Keith Walsh Solicitors LLP

applications in 2022, are transferred down to the District Family Court, then this will put much further pressure on the District Court system. b. Most Judicial Separation and Divorce cases require more Court time than the usual District Court Summary matter Cases involving judicial separation and divorce in the Circuit Court when contested rarely take less than two hours or half a day.

Many cases take one day and some other cases take two or more days to complete. The movement of almost 6,000 divorce and judicial separation cases will have a very significant negative impact on the time available for other family law cases. c. Displacement of other cases dealt with in the District Family Court It is likely, based on previous experience, that if divorce and judicial separation cases are moved down to the District Court that this will result in less time being available for other family law cases including domestic violence, guardianship, custody, access and maintenance cases leading to further delays. There is significant potential for judicial separation and divorce cases, which

Family Law

are much more complex and lengthier than other District Court cases, to take up most of a District Court Judge’s Court day to the detriment of other cases.

2. The District Family Court is unsuitable to deal with Judicial Separation, Divorce and Cohabitation cases as it is a Court of summary jurisdiction and the Law Reform Commission in its report on the Family Law Courts in 1996 were against any such change “Until decisions are made on these broader questions [of unified family courts and review of the courts system], we feel obliged to make a choice between Circuit and District levels. On balance, we believe that our provisional recommendation in favour of a Circuit-level Family Court is correct. We do not believe that remedies such as divorce, annulment or judicial separation should be made available at the level of a court of summary jurisdiction. Therefore, if there is to be a unified family law jurisdiction, as we strongly believe there should be, it must at this time be established at Circuit level.” [para 4.21 LRC Report on Family Courts LRC 52-1996] 3. The infrastructure of the District Court is unsuitable for the conduct of Divorce and the Parchment 7

Judicial Separation cases The Circuit Court deals with lengthy trials on a regular basis. It has developed the administrative infrastructure to deal with these cases which, like judicial separation and divorce, may involve interlocutory applications such as applications for maintenance, directions with regard to access, custody, domestic violence, applications to appoint child assessors, orders to freeze monies which are injunction-type orders. The management of these cases requires another court official called a County Registrar to deal with the volume of these cases and also in the case of family law to deal with additional mini-hearings called Case Progression hearings.

The volume of family law work in the Circuit Court for this official and the administration involved is significant. The District Court has no history of dealing with longer trials nor of having a County Registrar and the Family Courts Bill does not provide for the appointment of such an official nor does it provide any system of dealing with the type of cases such as Judicial Separation and Divorce.

Given the failure on behalf of successive governments to properly fund Family Justice in Ireland there is a very significant concern that if cases are simply transferred 4. Out of step with entire Court system and down to the no thought for financial implications of this change District Court The proposal in the Family Courts Bill is to without any increase the jurisdiction of the District Court to €1 million and to permit the District Court to deal resources or with judicial separation, divorce, civil partnership, administrative cohabitant cases where the market value of the property involved is less than €1 million. This or other would mean that over 80% of all such cases would changes then now be dealt with in the District Family Court.

This is completely out of step with any other such the system will cases in the District Court. be even worse The current monetary jurisdiction of the Circuit Court is up to €3 million for family law cases and than predicted for other cases relating to land and certain actions

for ejectment generally.

The current monetary jurisdiction of the District Court is €15,000.00. The District Court has no

8 the Parchment

jurisdiction in equity and cannot hear cases where equitable reliefs such as declarations, injunctions or specific performance are sought.

The explanatory and financial memorandum published with the Family Courts Bill 2022 states that the primary costs arising from the Family Courts Bill will arise from the establishment of the Family High Court, Family Circuit Court and Family District Court and will relate to the renovation and modernisation of court buildings, capital ICT costs, judicial appointments and support staff. The delivery of Family Court buildings and ICT infrastructure will be part of the wider necessary process of renovating, modernising and ICT-enabling courthouses where the Family Courts will be located. Construction of a purpose-built family law court complex at Hammond Lane in Dublin is a key project funded under the National Development Plan 2021-2030.

While this acceptance that financial resources are required is welcome, no mention is made of funding access to specialist supports for families going through relationship breakdown.

Without sufficient resources, and family law has never received resources comparable to either criminal or civil or commercial courts, the reforms proposed will make the situation worse not better. Given the failure on behalf of successive governments to properly fund Family Justice in Ireland there is a very significant concern that if cases are simply transferred down to the District Court without any resources or administrative or other changes then the system will be even worse than predicted.

5. Could the objectives of the Bill be achieved in a different manner in relation to the change in jurisdiction?

If the objectives of the change are to reduce legal costs and to make the system of Divorce and Judicial Separation more efficient then this can be achieved without a change in the

Winter 2023 dsba.ie

Family Law

jurisdictions. The immediate appointment of a task force of diverse stakeholders in the family justice system with a brief to reform the current District and Circuit Court procedures with a view to making the system more efficient is one alternative. It is submitted that the objectives of reducing legal costs and making the system more efficient could be achieved first of all by changing practice and procedure in the Circuit Family Court by introducing more emphasis on cost penalties for those who delay cases, further incentivising ADR and early resolution and ensuring earlier judicial involvement. The current system of court pleadings could be overhauled as could the Case Progression system. Almost all of these changes could be made within the current system with less cost and far greater effectiveness than transferring divorce and judicial separation cases from the Circuit Court to the District Court.

6. No cost savings are likely to result from this change, however frustration and delay is the most obvious result The transfer of Divorce and Judicial Separation cases from the Circuit to the District Court is unlikely to result in: a. Quicker resolution of cases b. Lower costs c. More efficient management of cases Instead, it is likely to result in a system in need of overhaul being replaced with a system that does not work and making things worse rather than better for those unfortunate enough to have

to navigate this system. It is highly unlikely that cost savings will result if cases cannot be processed efficiently and if delays are in-built into the system.

7. Huge concerns that any changes will not be properly resourced Given the failure to progress the Family Court in Hammond Lane in 2023, and given the historic absence of proper funding for the family law area, it is difficult to see how any proposed changes would be properly resourced which will mean that an ill-thought-out under-resourced system will replace a system which could be improved at a much lower cost. The likely result is gridlock, delay and absence of access to justice for those forced to seek a court hearing for judicial separation, divorce, cohabitation and civil partnership cases.

Conclusion While the proposed transfer of divorce and judicial separation proceedings from the Circuit Court to the District Court may have the best of intentions, in practice it is likely to result in significant delays for all litigants in the District Court, gridlock for judicial separation and divorce applicants and result in a system that currently is in need of overhaul being replaced with a system that does not function.

There are other means of actually achieving the same objectives and these options should be pursued but the move to the District Court must be resisted immediately or it will come to pass if no voices are raised against it. P the Parchment 9

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Winter 2023 dsba.ie Julie Doyle is a solicitor with West Lex Solicitors.

She is a member of the DSBA Parchment committee

Interview

History in the Making Dr Michael M. O’Connor practised as a lawyer for almost 30 years in Ireland and internationally. He was formerly a senior partner at one of Ireland s leading law firms, where he was head of the Projects, nergy Natural Resources practice, which he founded in 1999.

Now an independent researcher and author, Michael has published several books on social history, crime punishment, and women the law. He also finds time to administer a social and political history Facebook page with over 23,000 followers. Here, Michael discusses his career pathway in conversation with Julie Doyle

Can you tell our readers a little about your background and where you grew up?

I grew up near the village of Belcarra in County Mayo, where I attended national school before moving on to St Gerald s De La Salle College in Castlebar. My family has farmed land near Belcarra for generations.

I am one of eight, and my father, now in his eighties, is still farming. As a child, I was not all that interested in sports, and time outside school and off the farm was spent in books and at Mayo County Library in Castlebar.

Where did you attend college, and why did you decide to study law?

I studied law at Trinity College Dublin. Why law and why Trinity? The latter is perhaps easier to answer.

When viewed from rural Catholic Mayo in the late 19 0s, Trinity was considered somewhat left of field.

When the big reveal occurred my first choice for college, I was met with incredulity, with some asking me if I was aware that Catholics were not accepted.

I reminded them that this had changed in 1 94 and that the Catholic Church had itself come to terms with Trinity in 19 0. thers suggested country people

and people from the West, in particular, did not go to Trinity. All of this made Trinity even more appealing. My parents were very supportive of my choice.

I would have pursued History in an ideal world, but 1980s Mayo was far from an ideal world. Like the country, the county was in the grip of a grim recession.

There were no opportunities for school leavers, let alone graduates or idealists. As the time to make a final decision approached, a more pragmatic self emerged. ver the course of a year or so, I first entertained and then wholeheartedly embraced the idea of studying law at Trinity. ver the next four years, I was entertained and enlightened in equal measure by Mary Robinson, Mary McAleese, Gerard Hogan, Brian Lenihan, ader Asmal, and other luminaries. I had made the right decision.

Where did you carry out your apprenticeship, and what motivated you to pursue your chosen field of expertise?

In the summer of 1990, I left Ireland for a summer placement with a large City of London law firm. At the time, I had accepted an offer of an apprenticeship in Dublin, which I had every intention of taking up. the Parchment 11

In a world that is becoming increasingly unstable and unpredictable, Ireland is at risk of suffering a reversal of fortunes where there is a reduction of external demand for Irish products in key export sectors

A few weeks later, I was offered a scholarship to study at Cambridge niversity, which I accepted.

The focus of my studies was Corporate Law. By the time I graduated a year later, I had an impossible choice of commencing a funded PhD at Cambridge or following everyone else to London. Pragmatic me stepped in again and made the choice. I spent three years at Slaughter May as an apprentice and junior solicitor, working predominantly on corporate and banking matters.

After qualification, you also practised in the Middle East with Clifford Chance International Projects Group, considered at that time to be the world’s largest law firm. Could you share some of your experiences from that time? How did those experiences impact your approach to practising law?

My chosen field of expertise found me when Clifford Chance offered me a position in their International Projects Group in early 1995. For the next five years, I worked across the Middle ast on some of the region s most significant and interesting energy and infrastructure projects.

It was an interesting and exciting time to be in the Middle ast. In the aftermath of the Gulf War, many governments embraced privatisation and broader private sector participation in what were hitherto public monopolies such as energy generation, water supply, telecommunication services, and transport.

New regulatory regimes were required to lay down the ground rules and entice foreign investors, banks, and utilities into these markets. The legal work was groundbreaking, intellectually challenging, and invariably had to be done yesterday. The clients included governments, foreign investors, banks, and contractors. ur team worked on the construction and financing of oil and gas projects, power plants, desalination plants, telecommunication satellites, aircraft procurement, and various other large-scale projects.

Practising law in the Middle ast came with a requirement to question everything. Contracting under English Law at that time gave an illusion of certainty. But behind the scenes, much work was done on understanding and highlighting potential con icts with Sharia Law, risks associated with sovereign immunity, and the enforceability of contracts and arbitration awards. Laws could be changed overnight, and the requirement to translate contracts into Arabic always raised concerns that something would be lost in translation. Law in the Middle East was practised at a veritable crossroads where clients arrived from all over the world on early morning ights and worked with few pauses until they departed, often on the same day. Much of my practice focused on Saudi Arabia, atar, Jordan, and the A .

As the millennium approached, you returned to Dublin, joining Matheson Ormsby Prentice (now Matheson LLP) in 1999. What prompted your decision to move home?

The decision to return to Ireland did not come easily, but in the end, it was driven by a strong desire for 12 the Parchment

our children to be raised and educated in Ireland.

Those who committed long-term to the Middle ast invariably sent their children to ngland and elsewhere to be educated. We wanted our girls, one of whom had been born in Sharjah and the other in Dubai, to be raised in Ireland. Their sister was born in the Coombe after we returned home.

Ireland has experienced a significant change in the internationalisation of the legal market, particularly within the past ten years. How did the legal landscape in Dublin in the late 1990s compare with your international experience?

Very favourably. The rapid economic growth of the late 1990s brought a requirement for specialist skills and experience. Plans to address infrastructure deficits, privatisation proposals, and regulatory restructuring and market change mandated by European Law all opened up opportunities for Irish lawyers to return to Ireland and do what they were doing elsewhere.

You led the Projects, Construction and Infrastructure department in Matheson at a unique time in the growth of the Irish economy and its subsequent collapse in 2008 and later rejuvenation. From a historical viewpoint, taking lessons from the collapse, what vulnerabilities do you believe remain in the Irish growth model?

Many of the vulnerabilities in the Irish growth model come hand in hand with the advantages of the Irish model. Ireland is a small, open economy that depends heavily on continued foreign direct investment and exports. In a world that is becoming increasingly unstable and unpredictable, Ireland is at risk of suffering a reversal of fortunes where there is a reduction of external demand for Irish products in key export sectors. We are already seeing evidence of this.

Maintaining Ireland s favourable tax and regulatory status, competitiveness, and prudent management of public finances are essential. Cyber security should be a priority, as should energy security and the security of cross-border energy infrastructure, such as gas pipelines and electrical interconnectors.

You were at the forefront of the evolution of the specialisation in energy law in Ireland. In your opinion, what have been the key drivers in its development?

The key drivers were uropean nion energy policy and a succession of legislative packages. The Irish Government, like other uropean Governments, was forced to rethink and restructure the domestic energy market to bring it into line with uropean nion requirements. Specialisation was required by clients operating in a market that grew ever more complex as it underwent continuous change. The establishment of a new independent regulator and the arrival of competition in the form of new market entrants also significantly increased the demand for specialist legal services and support.

You returned to Trinity College to pursue a Doctor of Philosophy, which was awarded

Winter 2023 dsba.ie

Interview

Photography: Michael McLaughlin

in 2018. What was the greatest challenge for you in returning to study?

Full-time study would have been impossible, so I undertook it on a part-time basis. The research subject Ireland s 2020 nergy Targets was at the heart of my work. I also lectured at Trinity College Dublin on Sustainable nergy, which worked well.

You are now retired from practice and focusing on interests outside the law.

In 2020, you published ‘Anatomy of a County Gaol’, an in-depth study of imprisonment, capital punishment, and transportation in County Mayo from the late sixteenth century to the early twentieth century. It provides a fascinating insight into crime and punishment in the period and the degradation of women, children, and the mentally ill throughout our history. Why were the prisons in Mayo considered to be the worst in Ireland during some of that time?

There was a combination of factors at play. Prisons in Mayo were small and poorly constructed. There was an unwillingness on the part of the Mayo Grand Jury to spend county money on any form of social infrastructure. It is difficult to imagine today, but there were four County Prisons in Castlebar, two of which operated in parallel between 1813 and 1835.

Management was left to untrained, unchecked, and corrupt governors. Though regulation improved considerably as the nineteenth century unfolded,

oversight was left to a poorly staffed and underresourced independent inspectorate. Independent oversight and intervention were also strongly resisted by those who held power locally.

In 2021, you published ‘Caribbean Slave Owners & Other Lesser-Known Histories of County Mayo’ examining, amongst other things, the connections between land-owning families in Mayo and historical slavery in the British Caribbean. Were you surprised at the extent of the Irish connection, and what are some of the legacy issues that remain?

Not surprised at all. Hundreds of individuals from Ireland enslaved thousands of Black Africans and their descendants in the British Caribbean and elsewhere over a lengthy period before the abolition of slavery in the British mpire in 1834 by the Slavery Abolition Act 1833. The act remains on the Irish Statute Book.

Legacies take many forms. Physical legacies, including landmark properties like Westport House in County Mayo, are the most obvious. But there are also political, cultural, commercial, and historical legacies. The legal profession, including Irish lawyers, played a very prominent role in historical slavery. Acknowledging and accepting this history is essential and something we here in Ireland should not continue to ignore or seek to lay at the doorstep of others.

Congratulations on the successful launch of your recent book ‘Criminal Conversation the Parchment 13

with My Wife – Women and the Laws of Men, County Mayo Case Studies 18001919’. Firstly, can you explain what is ‘Criminal Conversation’?

When a man had an adulterous affair with a married woman, her husband was entitled to sue her lover for compensation

When a man had an adulterous affair with a married woman, her husband was entitled to sue her lover for compensation. If he was successful, the compensation was based on the wife s value to the husband. Valuable wives attracted a higher level of compensation. The aggrieved husband bid up her value with eulogies about her virtue and beauty. The defendant, mindful of the cost of the outcome on his pocket, painted her as a harlot. Criminal conversation was essentially an action for trespass the husband was entitled to compensation for trespass on his property, his wife.

The cause of action was abolished by the Family Law Act 1981. There were several high-profile Mayo Criminal Conversation cases.

Your book provides a much-needed historical insight into the history of the lives and experiences of women who encountered the law and the legal system in the nineteenth and early twentieth centuries. It outlines the prevailing efforts to control and subjugate women in Irish law. Following your research, why do you believe such a position prevailed for so long?

Ireland has a long history of patriarchy. ur legislature, our universities, the Christian churches, and, crucially,

14 the Parchment

the law have all acted as advocates for and defenders of male privilege for centuries. The making of laws and the administration of justice in Ireland was the preserve of a narrow class of privileged men until relatively recently. Women were forced to fight at every step to gain some of the ground occupied by men for centuries. Women still face significant challenges when they encounter the law, especially in areas such as domestic violence, rape and sexual violence.

What next?

Next is a three-year university-based research project beginning in the New ear to examine in detail Irish and Anglo-Irish slaveholders in the British Caribbean and the Indian cean in the century before the abolition of slavery in 1834. I will be focusing in particular on the issue of the erasure of the identity and ethnicity of the enslaved and the legacies of Irish and Anglo-Irish slaveholders. ver the past two years, I have worked with people across the Caribbean on issues such as reparations. I am also working on identifying Irish slaveholders and their enslaved populations and assisting descendants of enslaved persons in reconstructing biographies of their ancestors and family trees. More on that in the New ear P For more information on the works of Dr Michael M. O’Connor see www.drmichaelmocnnor.com or www.mayobooks.ie

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Contract for Sale 2023 The Law Society of Ireland launched its new edition of the General Conditions of Sale in ctober 2023. Practitioners are recommended to use the new conditions from 1st November 2023 but it is accepted that contracts already under negotiation on that date do not have to be updated. Clodagh Hagan examines the new conditions of sale

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he Law Society have issued two complimentary documents to assist practitioners, an xplanatory Memorandum and marked-up version of the 2019 conditions showing the changes made.

The updated general conditions are indexed with a table of contents with a useful hyperlink to bring you directly to the general conditions text. The relevant and recent practice notes from the Law Society Conveyancing Committee have also been helpfully set out at the end of the explanatory memorandum with hyperlinks.

The DSBA Property Committee held a wellattended CPD event on 8th November where eith McConnell of Gore Grimes LLP Solicitors highlighted the changes to the General Conditions of Sale 2023 dition.

Apart from updating the statutory references, definitions and some improvements to the language and formatting there are some new conditions which have thankfully not altered the sequence of the now familiar general conditions numbering.

The new conditions are General Condition 3 on Data Protection, Condition 48 -Signatures, and Condition 49 Severance.

General condition 3 on Data Protection is an acknowledgement that both parties will comply with

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the GDPR legislation throughout the transaction in connection with sharing each other’s data. This is relevant for sharing PPS numbers, letting agreements, finance and MC transfer of ownership requirements.

It is recommended in circumstances where the contract is being used for the sale of a business, for example, a medical practice, that a more specific special condition is inserted in the contract to allow sensitive data sharing between the parties.

The -Signatures Condition 48 allows for the execution and exchange of the contract by way of electronic signature, if elected by the parties, but the formalities of execution and exchange have not changed. As the contract is not a deed it does not have to be witnessed to be validly executed and binding.

The wording re ects the Guidance Note issued from the Law Society on -Signatures and electronic contracts and there is a link to this updated Guidance Note in the xplanatory Memorandum.

The Severance Condition 49 explicitly allows conditions to be severed or omitted from the contract without altering the enforceability of the overall contract.

The updated General Condition 10 registered land corresponds with what happens in practice ensuring the Vendor must provide a compliant map for sale of a part folio as a contractual obligation not just as a

Winter 2023 dsba.ie Clodagh O’Hagan is a member of the DSBA Property Committee and a partner at Mullany Walsh Maxwells LLP

completion item under the replies to requisitions on title.

Practitioners will also note that a new definition of Working Days has been inserted in the new contract.

This affects the timelines set out in General Condition 4 Dispute Resolution to allow for Working Days as defined. However, note that the timelines for Completion Notices served under General Condition 21 Interest have not changed given the usual practice.

General Condition 21 has been updated to clarify the entitlement of a Purchaser to compensation, in similar language to the entitlement of the Vendor to compensation by way of interest on the Purchase Price.

The revised General Condition 40 Risk now excludes damage which does not materially affect the value of the Subject Property, which damage may occur when the premises is being vacated.

The service of notices is amended in General Condition 45 Notices which allows service by D . It is recommended that if practitioners do not wish to be served by D or fax, references to these methods of service are removed by the firm letterhead.

In practice the General Conditions of Sale 2023 have not introduced any extensive changes and will still require special conditions to amend them, where necessary, as is usual in conveyancing practice. P

Conveyancing

The Severance Condition 49 explicitly allows conditions to be severed or omitted from the contract without altering the enforceability of the overall contract

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Elaine O’Connor is a senior associate in LK Shields and a member of the DSBA Property Committee

Planning

The Office of the Planning Regulator The ffice of the Planning Regulator PR was established in April 2019 pursuant to recommendations made by the Tribunal of Inquiry into Certain Planning Matters and Payments. The purpose of the PR is to ensure that Ireland s 31 planning authorities and An Bord Plean la deliver their planning functions to the highest standards and that they implement and adhere to Government planning policy. laine Connor looks at the work of the PR to date Role of the OPR

ne of the aims of the PR is to promote the public s engagement in the planning process and to enhance knowledge and public information

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The Planning and Development Act 2000, as amended, gives the PR a statutory basis to carry out three main functions: 1 Evaluation of Statutory Plans The PR is responsible for independently assessing city county development plans and local area plans at three key stages: pre-draft issues paper stage, draft plan stage and material alterations stage. The PR also considers any proposed variations to existing city county development plans or amendments to local area plans. PR submissions may include recommendations, observations or advice.

2 Planning Reviews and Examination The PR provides a service to the public in relation to a variety of planning-related case types, including queries or general information requests, submissions on aspects of the operation of the planning process, and complaints about the delivery of planning services. Following a review, the PR may make independent and evidencebased recommendations to local authorities and

to the Minister for Housing, Local Government and Heritage.

3 Education, Training and Research ne of the aims of the PR is to promote the public s engagement in the planning process and to enhance knowledge and public information.

The PR and the Department of Housing, Local Government and Heritage have published a series of planning lea ets dealing with all aspects of the planning system including how to prepare and lodge a planning application, how to make a planning appeal, requirements for change of use, building extensions, garages, domestic sheds, agricultural development, etc.

Work of the OPR to Date Since its inception, the PR has been busy implementing its objectives as highlighted by the following statistics: 1 In 2020, 45 submissions were made to local authorities and 198 cases were received by the PR. f the 198 cases received, 129 were complaints, 50 were queries and 19 were submissions.

2 In 2021, 46 submissions were made to local authorities and a total of 261 cases were received by the PR. 3 In 2022, 44 submissions were made to local authorities. A total of 248 cases were received by the PR and 234 cases were closed. f the 234 cases closed, 121 were complaints, 6 were queries and 46 were submissions.

4 In the first half of 2023 the PR made 2 submissions to local authorities. A total of 84 cases were received by the PR and 93 cases were closed. The 93 cases closed in the first half of 2023 included 52 complaints, 20 queries and 21 submissions.

Whilst the PRs oversight function is an improvement to the planning framework in Ireland and it is clear that the planning process will benefit from its strategies, it is something that needs to be borne in mind by developers, architects and planners. P

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“You can’t take it with you – the Digital Footprint” Stephen Spierin BL analyses a new species of assets which has emerged digital assets

S

ince the Succession Act 1965 there have been significant societal changes, the obvious being divorce, same-sex marriage, cohabitation, all of which can be dealt with within the succession law sphere, as legislation was introduced to deal with these changes. Alongside these social changes a new species of assets has emerged digital assets and by consequence the ‘digital footprint’. One of the key difficulties is that these assets are intangible and very difficult to define. In fact, there is no fixed definition of digital assets, but some attempts have been made.

In effect, digital assets comprise any files stored or generated on digital devices.

While the saying “you can’t take it with you…” may be true, one would be wise to also consider what you are leaving behind. Are you familiar with your digital footprint There is no Irish jurisprudence on the themes of digital footprint” or digital assets” just yet, however with the rise of assets stored online and wealth accumulated online, we must consider how digital assets will be dealt with after death.

But what actually happens to digital assets when someone dies? This basic question raises a host of legal issues around ownership, privacy, access to usernames and passwords, and the duties of personal representatives when administering estates which do not fit neatly within traditional succession law and property law concepts. The location of digital assets also leads to complex multi-jurisdictional legal issues, yet there is currently no joined-up international law on the subject.

STEP with the Queen Mary University of London published a report in 2021 entitled “Digital Assets: A Call

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to Action”, which examined the risks and challenges posed by digital assets to estate planning and administration. The key findings were: • Digital assets have become a common part of modern estate planning and estate administration, with demand for advice expected to increase significantly in future.

• Clients seek digital asset advice in relation to both estate planning and estate administration, with social media and email accounts topping the list of most-asked-about assets.

Clients frequently experience difficulties accessing digital assets on death or incapacity of a family member, causing distress and frustration.

Third-party service providers can present practical, procedural, and legal obstacles to both estate planning and estate administration.

There is wide variation in policies, practices, and tools for dealing with clients digital assets, highlighting the need for more education for practitioners on best practices.

Law reform is needed to enable effective estate planning and estate administration for digital assets. bvious examples of digital assets include emails and email accounts, blogs, social media profiles and accounts, digital music collections, digital photographs and videos, and online bank accounts and other financial investments. In addition, we can also include online seller accounts, betting accounts, money transfer applications, or internet domain names. We also have new forms of non-traditional digital assets comprising cryptocurrency or NonFungible Tokens NFTs .

What sets digital assets apart from other types

Winter 2023 dsba.ie Stephen Spierin BL specialises in Probate. He acknowledges the contribution of Jude Murray BL to this article

of property is the fact that the account holder, the person who we would class as the ‘owner’ of the digital asset, does not necessarily control their ultimate fate.

Attempts to gift such assets or, more likely, authorise access ignore the fact that the private contractual arrangement with the online service provider, which the individual in question invariably agreed to with little thought for the post-mortem implications, may prohibit this.

Notwithstanding, digital assets can have little or no real financial value, or in the alternative, they could have significant value. For example, a person s family photographs in the cloud, or shared experiences on Instagram or other platforms, may have a value personal to the account holder but no monetary value.

But the next-of-kin or LPRs of the person concerned may wish to close an account after the account holder dies. Passwords may be unknown, and the platform provider may only deal with the account holder so that has the potential to cause difficulty.

Also, some accounts will revert to the provider after a period of time so it may be necessary to act with expedition if that is possible.

Other digital assets may be valuable in real terms and a practitioner would ignore them at their peril.

Assets, with apparently no real value, could acquire a value, depending on the fame or infamy of the person to whom they relate. Ordinarily a social media account may have no intrinsic monetary value, but it has become a sole source of income for in uencers , who may have established a significant following.

These accounts have value and can be sold, the price depending on the number of followers attached to the account.

Had some dictators of the past been alive in the digital age, their online output could have a significant value, almost in spite of the infamy or distasteful ethos of the person concerned, e.g., Hitler’s Facebook or Twitter accounts. What about the value of Mr. Trump s prolific tweets The collection could yet spawn a book, which would undoubtedly be a commercial success.

As the internet generation comes to make wills it will become routine to ask about digital assets.

Regardless of age, the majority of people may have built up digital assets with some value monetary, sentimental, or otherwise so the questions concerning digital assets should now be added to an instruction for a will checklist. Doing that is simple, asking the “right” questions and understanding the legal and tax effect of the answers, is another issue.

While it may still be whispered in corners that cash is king”, the reality may be that content is king, or at least is becoming such. Like ants and worker bees, millions of people produce online content daily. When those producers die, what happens to the content they produced? Did it belong to them or to the company that hosts that data In terms of liability, one might argue that big tech would prefer to deal with it as they please. For example, when it is in their interest they own the data, and when it is not, they might say they are only a publisher or conduit.

It has been suggested that the tech companies do not do enough to protect our privacy while alive, and arguably it would seem they may be doing too much to guard privacy when we die. For example, tech companies usually state that their contract or “user

Probate

What sets digital assets apart from other types of property is the fact that the account holder, the person who we would class as the ‘owner’ of the digital asset, does not necessarily control their ultimate fate

the Parchment 21

Probate

It has been suggested that the tech companies do not do enough to protect our privacy while alive, and arguably it would seem they may be doing too much to guard privacy when we die

22 the Parchment

agreement” was with the deceased person, such that they are very reluctant to give access to that account to a deceased s next of kin or personal representative on death.

As Artificial Intelligence thrives, with a few samples of a deceased’s voice and image it will be possible to keep them alive online. Morosely, it could be possible to receive a greeting from the grave. The Oireachtas is currently debating bills in relation to a “right to die”, i.e., assisted dying. A digital footprint may bring with it a necessary conversation about a right to be dead, a right to be forgotten, a right to rest in peace. qually, it may not be appropriate for a deceased’s digital assets to be deleted, even if it is possible. Apple s Terms of Service contains a “No Right of Survivorship” clause, whereby, if an account does not have a Legacy Contact listed, Apple says on receipt of a death certificate, “your Account may be terminated and all content within…deleted”. But there are many priceless diaries and letters throughout history for which destruction or deletion would have been a tragic loss. The German courts have treated Facebook posts in the same way as traditional diaries or letters.

Given the growth in digital assets we cannot summarily dismiss them. Digital assets are likely to get more, and not less, complicated. Legal practitioners in Ireland must include digital assets” in their checklist for preparing a will. Given that wills ought to be kept under regular review, the same is true of this digital legacy list, due to how passwords can change regularly for security reasons.

Digital assets can be cross-jurisdictional by nature some contracts are governed by the law of the country where the data is stored, e.g., on a server somewhere in America, or by the law of the deceased s country of domicile. The fact that an in uencer broadcasts their lucrative YouTube or TikTok channel from North County Dublin may not mean that the asset is situate in Ireland. The person broadcasting will have maybe without fully realising it entered into a contract with the platform provider and may have agreed to all sorts of terms and conditions which they never read.

Almost certainly they will have taken no legal advice when they clicked on ‘I Agree’.

Many of us will have heard of cryptocurrencies like Bitcoin and other emerging virtual currencies but know little about them in legal terms. These assets can, as we know, have considerable, if uctuating, value. They are volatile and unregulated.

The lack of regulation this side of the Atlantic is in stark contrast with the nited States, where for example, klahoma gives the deceased s executor a right to access specific online accounts, while Idaho allows the deceased s executors or personal representatives to access a wide range of digital assets including accounts on social networking sites, and blogs.

The most recent, and most significant, legislative development, however, is the niform Fiduciary Access to Digital Assets Act FADAA . Released in 2015, this was intended to give fiduciaries such as personal representatives, executors, and trustees the authority and ability to access the deceased’s online accounts, and in doing so, to perform their basic legal duty to deal with and distribute the deceased’s estate.

There is a need for an international protocol or convention on how to deal with digital assets after death. Such a protocol ought to advise on ethics and the practicalities of keeping such digital assets going posthumously.

Practitioners need to know how to advise whether a client owns “has legal title over” or rents “has a licence” digital assets. If the client owns a digital asset, a legal practitioner needs to advise them as to how that asset might be gifted. There could be scope in certain circumstances, for example, for a digital asset to be liquidated and the proceeds paid to the estate. Digital assets that generate income, such as online shops, content channels, e-books, podcasts et cetera, could be defined as “going concerns”, which could be carried on or sold by legatees.

Williams on Wills are undoubtedly correct in their assessment that, at the very least, testators should be encouraged to ‘die tidily’ in respect of their digital estate. Given their complexity there may be a temptation to ignore digital assets, but to do so would be a great disservice to the testator. P

Winter 2023 dsba.ie Paul Convery and Laura Murdock are both partners in the Litigation & Investigations department at William Fry. The authors wish to acknowledge the contribution of Jack Spain to this article

White Collar Crime

First Ever Insider Dealing Conviction Paul Convery and Laura Murdock assess a recent case where a businessperson was convicted of insider dealing by the Dublin Circuit Criminal Court. This was the first time in the history of the State, representing an important development in market abuse enforcement and wider securities regulation Insider Dealing under Irish Law Insider dealing is an offence under Regulation 5 of the uropean nion Market Abuse Regulations 2016 the Market Abuse Regulations , which gives effect in Irish law to the Regulation 596 2014 , Market Abuse Regulation. Insider dealing occurs when a person who possesses inside information knowingly buys or sells financial instruments to which that information relates directly or indirectly.

Information will constitute “inside information” when: • it is precise, non-public, • relates to financial instruments, and • if it were made public it would be likely to have a significant effect on the price of those financial instruments.

The term financial instruments is not limited to publicly traded shares and includes derivatives and spot commodity contracts.

The offence of insider dealing forms part of Irish market abuse law, which also includes offences of inciting insider trading, market manipulation and unlawfully disclosing inside information.

Additionally, under section 1368 of the Companies Act 2014 the Companies Act , a person who is guilty of an offence created by Irish market abuse law is liable to conviction on indictment.

Case Background The accused was a businessman who was charged following an investigation led by the Garda National Economic Crime Bureau into market abuse. It was alleged that the insider dealing occurred between 18 and 22 May 2020. The accused was charged with insider dealing under Regulation 5 of the Market Abuse Regulations and section 1368 of the Companies Act. At a hearing before the Circuit Criminal Court in September 2023, the accused pleaded not guilty” to both offences. The

Director of Public Prosecutions directed that the accused should be tried on indictment. However, when the case came for mention before the court on 19 ctober 2023, the accused pleaded guilty to one of the offences. The accused received a date to be sentenced in December 2023.

Penalties The penalties for insider dealing are considerable given its potential to undermine investor confidence in financial markets. Summary conviction for an offence under the Market Abuse Regulations can attract a fine of up to €5,000 and up to 12 months imprisonment. Conviction on indictment under section 1368 of the Companies Act can result in a €10,000,000 fine and up to ten years imprisonment.

Significance The case is the first criminal conviction for insider trading in the history of the State. In May 2022, the High Court confirmed sanctions imposed by the Central Bank Enforcement Division on a former director and chairman of several public companies, who was found to have engaged in insider dealing in 2008. He was fined € 5,000 and disqualified from being involved in the running of a regulated financial services provider for five years.

The offences occurred prior to the introduction of the Market Abuse Regulations and there was therefore no criminal conviction.

The significance of this case is somewhat tempered by the fact that the accused pleaded guilty before the details of the offences could be entered into evidence and argued before the court. Whilst the conviction is important in Irish securities law enforcement, judicial interpretation of the constituent elements of the offence of insider dealing under Irish law remains outstanding. We will keep the area under review for future developments. P

Conviction on indictment under section 1368 of the Companies Act can result in a €10,000,000 fine and up to ten years imprisonment

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24 the Parchment

Winter 2023 dsba.ie Keith Walsh solicitor and SC practises in the area of family law in Dublin where he is a partner in Keith Walsh Solicitors LLP

Special Interview

Champion of the People As part of the DSBA Conference in London in September 2023, Keith Walsh met the Rt Hon. Baroness Hale of Richmond DBE, known as Lady Hale. The interview was broadcast to delegates attending and what follows is an edited note of their wide-ranging discussion

Lady Hale, if I could just ask you first of all, you describe in your autobiography about having imposter syndrome. Has that ever left you or is it still there?

It is probably with me as we speak. What are my qualifications to be talking to a conference of Dublin Solicitors. I know not.

…once you established yourself as an academic and you published a number of books, one on mental health law and one on family and children and the law and children and parents, you then became a Law Commissioner which I think is the equivalent in Dublin to being a Law Reform Commissioner and that seems to have been an incredibly happy and productive time in your life and that was about 10 years I think you spent doing that?

It was nine and a half years and yes, it s a wonderful job. If you take an interest in your subject and you know that there are things that can be improved and you want the chance to bring about those improvements, this is the best possible chance you

can get especially on a subject like family law where the Commission had always done a lot of work. I think the Government was quite happy to have the Commission doing some of this stuff which was social rather than political and so we did a lot of work, had a lot of success with it and what’s not to like?

…you get a sense when you look back at the history of family law [in England and Wales] that there was an explosion of enthusiasm in the 1970s and there was a great momentum for change but to a degree it started to run out of steam in the 1980s. How did that affect your work at the Commission and in terms of trying to keep family law on the agenda and to keep the changes moving? es, well you re quite right. There was of course a huge explosion, especially in the late 60s, early 70s when family law in England and Wales was transformed.

Divorce law was transformed and financial remedies after Divorce were transformed. Lots of other things happened but on the whole, children had been a neglected subject and when I joined the Law the Parchment 25

It very much is our role to protect minorities sometimes, unpopular minorities or the less advantaged in the population from things that the particular majority happen to want to do

Commission in 1984, there was momentum from Government as well as from the Law Commission for a wholesale review of the law relating to the care and upbringing of children both in the private law, that s between mother and father, husband and wife and all other family members, and in the public law.

That s child protection from abuse, neglect and the like and so we were able to do all of that culminating in the Children Act 1989 which brought all that law together and attempted to make it coherent and workable and satisfactory and just, etc. All the things that one would want the law to be, and it hadn t been before. So, there was momentum in child law, and I was very happy to take that on because it was one of my specialities.

In terms of changing a system, there is an underestimation of the power of the Law Reform Commission or the Law Commission in terms of the huge change, more than to some degree the case law or influence of individual judges, that actually like the Law Commission can hugely change depending on the individuals.

I mean do you subscribe to the view that a small number of individuals like you and your colleague Julian [Farrand] from Manchester who arrived at the Law Reform or the Law Commission at the same time as you could bring that kind of change about. Do you think that a small number of individuals can do that?

Well, I think the theory of the Law Commission and I suspect it is the same with the Law Reform Commission in Ireland is that if you bring a small number of professionals with a variety of

perspectives... ou know we had a Judge s Chairman, we had a senior barrister, a senior solicitor and two academics and if they all agree with what’s wrong with the law and what can best be done to put it right, well that has a power behind it. The collective view of a variety of senior people but most of the reform is of course actually effected by acts of Parliament and I m sure that s true in Ireland as well so we had to recommend things to Parliament, and it was up to Parliament whether it took them up. bviously, it was really up to the Government whether they were taken up, but it was up to Government and Parliament and sometimes they took them up but they mucked them about thus complicating the simple schemes that we had proposed. This is true with the further reform of the grounds for Divorce which we proposed but on the whole that s how it worked but also you were also right that sometimes the Law Commission can have an impact by saying to the Judges, look this is something that you can do if you want to and the best example I can give of that I think is rape within marriage where the Law Commission had a project which was a joint project between the criminal lawyers and the family lawyers where we set out the case against there being a crime, well against there being an exception against the law of rape for husbands and this was going through the Courts at the time and it got to the House of Lords and the House of Lords said that exemption should go, it s outdated. It doesn t work, etc. They didn t credit the Law Commission with reaching that conclusion, but I would be staggered if they hadn t read our work in the subject and realised that. The criminal lawyers were always worried that they were going to destroy marriage if they removed the exemption whereas the family lawyers knew that it wouldn t destroy marriage to remove the exemption.

…And then you moved on from the Law Commission and you were appointed and had been sitting as a part-time Judge and then you were appointed a full-time High Court Judge, and you then became an Appellate Judge dealing with different types of things, but which did you prefer?

Did you prefer being a High Court Judge hearing the first-instance cases or did you prefer maybe the more detailed kind of law-making and precedent-making work in the higher courts?

Baroness Hale of Richmond talks to DSBA Council Member Joan Doran

26 the Parchment

What I liked about the appellate work, either in the Court of Appeals or in the House of Lords or the Supreme Court, was the variety of the fact that one was dealing with points of law and of course as an academic I have always been interested in points of law and the ways in which the law can develop so that was the attraction of it but in the family division, I did find being a Trial Judge the most fascinating, interesting work. I mean the points of law work involved in family law is limited but the difference between the people, the families, the personalities, the interactions, their lives, that was absolutely fascinating and of course one was making the decisions oneself so it was a big burden of responsibility but if you made the right decision you would make a very unhappy situation a little bit happier or even sometimes happy.

Winter 2023 dsba.ie

Special Interview

ou were trying to improve people s lives which not many Judges are in that position. They just try to pick up the pieces after people s lives or businesses have been ruined whereas we were actually trying to improve things.

One of the people you are compared to quite a bit is Ruth Bader Ginsburg and in her book, she quotes you as saying that “one of the most important tasks of the judiciary is to protect the individual from the power of the State. This includes minorities, often unpopular minorities from the wrath of the majority. If the Judge were to have to submit herself periodically to election, she would find this harder to do.”

Ruth Bader Ginsburg agreed with this point about election of Judges, but in a broader sense do you feel that you were effective in protecting the individual from the power of the State in your time? Is it an easy thing to do?

No, it s not an easy thing to do because what the Judges are doing, it s different if you are in a Tribunal because if you are in a Tribunal you are dealing with the merits of the case. ou know, if you are in a Social Security Tribunal you are dealing with whether there is a good claim to social security but if you are in the Courts, you are dealing with the legality of what the State has done and the boundary between merits and

legality and that is also something you have in Ireland I know, it is a really tricky boundary to navigate but we do try our best to be doing what we are supposed to be doing as Judges and so it isn t easy to protect people sometimes because sometimes the law does allow the Government to do things which maybe it shouldn t allow them to do. Things got somewhat...better might not be the right word, but changed somewhat when the Human Rights Act came into force in 2001 because the Human Rights Convention to which we are both parties, you also have legislation to protect it as well as the Constitution I would say, that does place stricter boundaries on what Governments can and cannot do in relation to individual fundamental rights but that too is very contested to what extent should the Judges be evaluating questions of proportionality of Governmental action when we are not subject to the same democratic resignation that the Government is but at the same time of course it very much is our role to protect minorities sometimes, unpopular minorities or the less advantaged in the population from things that the particular majority happen to want to do.

One of the concerns that we have on this side of the Irish Sea would have been the headline in the Daily Mail about the Judges a number of years ago, I think in 2016 or 2017 to do with the decision in relation to Brexit and I suppose in a democracy you would have concerns about the pillorying of the Parchment 27

Keith Walsh and Baroness Hale of Richmond

Then DSBA President Susan Martin with Baroness Hale of Richmond at the DSBA Annual Conference in London, September 2023

Judges who make unpopular decisions... how did you view that at the time and how do you view it now, with that kind of intense media scrutiny of decisions in certainly what seems to be a very unfair kind of way?

Well, scrutiny is one thing. ou know we ought to be scrutinised. It s part of our accountability because although we are not accountable through elections, we are accountable through the transparency of what we do so scrutiny is fine, unfair pillorying especially if it s directed in an individual and irreverent way is not. In fact, it s very dangerous and so that particular headline was very shocking. It shocked the legal profession; it shocked the Judges. It shocked everybody. When I say everybody, everybody in the justice system. It probably didn t shock the readers of the publication in question but there we go. They were the Lord Chief Justice of ngland and Wales, the second in command the Master of the Rolls, and a very senior Judge of England and Wales and they were called Enemies of the People. That was shocking. ven more shocking was the fact that the member of the Government who swears an oath to protect the independence of the Judiciary and the rules of law did not immediately stand up and say while we have a free press in this country you can print what you like within the bounds of the law, but it is my duty to tell you that you are wrong. These are not enemies of the people. These were adjudicating on a case as they thought right within their judicial oath and responsibility and if 28 the Parchment

they got it wrong the Supreme Court will put them right. Interestingly there was such a furore that by the time the case got to the Supreme Court we were not labelled enemies of the people and the Lord Chancellor, the Secretary of State for Justice did immediately issue a supportive statement so perhaps lessons were learned from that shocking interlude because nothing quite so shocking has happened since.

In terms of your own time on the Supreme Court, was there a particular case that you felt you enjoyed or would be a highlight of yours in your time there?

Well, I think I enjoyed almost every case that I sat on because by definition, it is the same as your Supreme Court, we are dealing with difficult points of law of general public importance so these are on the whole absolutely fascinating even when you think they are not going to be fascinating they turn out to be so they are all enjoyable. Some of them are difficult and some of them are more enjoyably presented than some of them. The advocates have a lot to do with how one enjoys the experience given our oral tradition which we share but the highlight has to be, I’m afraid, the prorogation case. We had no choice [but to adjudicate on] whether the Lord Chief Justice of ngland and Wales sitting with two other Judges in the High Court or the Lord President sitting with two other Judges in the Scottish Court of Appeal, which is called the Inner House, was right because

Winter 2023 dsba.ie

Special Interview

one of them had said this was not a justiciable issue whether a Prime Minister had power to advise Her Majesty in Parliament in the way that he did and so Parliament had been prorogued, and the Scots had said it is a justiciable issue and the advice was unlawful and null and of no effect so Parliament had not been prorogued. They could not both be right, so we had to choose between them.

And we know how you chose now historically and again I suppose was the Judiciary dealing with the State in a particular way that you were forced to do by the fact that it was justiciable or capable of being dealt with and that was your point...in terms of other cases ...that you thought this case is just a very important case to be deciding or there is a point here that I’m glad I’ve got my hands on or that may be true of a lot of cases but one in particular?

Well, it is true of a lot of cases but I think one that I was particularly glad to get my hands on was a case about the meaning of the word violence because there is a tendency to think that violence means physical violence hitting or threatening to hit and we have for several decades understood that this is not the only way of coercing somebody, that there are other methods of coercion which are just as effective particularly against women and particularly against vulnerable women. What we now call coercive control and I expect you have that in Ireland as well. Well, I think we in the Supreme Court in 2013 I think it was were the first to recognise that violence was a broader concept than just hitting or threatening to hit and it could cover all sorts of controlling behaviour which puts somebody in fear and causes them to do that which they wouldn t otherwise do and so yes I think we were in the vanguard of a movement which I think is now very well understood and we nearly didn t get our hands on that one because the Court of Appeal decided it the other way twice and so there was a temptation to say well they’ve got to be right but we managed to grab it out of the pool and we were unanimous which is also always very satisfactory.

the general public and to the Court of Appeal which is a quite important consumer of Judicial opinions. So, yes, that s what I would say but it s obvious isn t it

Well, it may be obvious to you but I suppose you have the benefit of being a Judge for so long and also having considered the law from the other side as somebody assisting the legislature [in the Law Commission]. The final question I was going to ask you is I think one of the things that people certainly get when they read your judgments or your autobiography or any other interviews with you is your clarity of expression. Is that something that you worked on over the years in terms of trying to be as clear as possible with lay people, with lawyers, presumably with advocates who appear in front of you. How difficult is it to be that clear? It looks very straightforward, but I presume it isn’t.

Well, I suppose it can t be straightforward because it is a comment that people make about me which means that they must find some judges not clear. I think whether it s due to my desire to be as short as possible which tends to mean that you ve got to think how to put what you want to say in as short terms as possible, but I think that does help with clarity, but I think the other thing that helps is 18 years of teaching undergraduate law students.

We are accountable through the transparency of what we do so scrutiny is fine, unfair pillorying especially if it’s directed in an individual and irreverent way is not

…It has been an absolute pleasure speaking to you and I hope I haven’t trespassed on your time too much… And all that remains is for me to thank you for the interview and for all the leadership and contributions that you have made to the legal community over the years.

Can I thank you too for the way that you have conducted this interview which has been a real pleasure. P

…one of our guests at our conference is a recently appointed Judge who was formerly a barrister. Would you have any general advice for somebody setting out, whether a District or Circuit or High Court Judge? h dear. What a difficult question. I m back to the imposter moment. Who am I to be advising Judges about what they should do although I think I would say something that I say to almost everybody which is that it s very important that you enjoy what you re doing. Not revel in it, not delight in the status, the pomp, the grandeur of being a Judge but that you actually enjoy the business of judging and that you think quite carefully about what that involves. It clearly involves listening, being patient, being polite, making up your mind. Gosh, what are we paid for except to make up our minds but being able to explain how you have made up your mind, why you have made up your mind in a way which hopefully makes sense to the parties though best to their legal advisers and

Lubna Shuja, President of the Law Society of England and Wales, Matthew Kenny, Susan Martin and Baroness Hale of Richmond the Parchment 29

Paddy Donaghy

– An Appreciation 11 September 1946 - 30 May 2023

A

sense of admiration for Paddy Donaghy’s courage and determination in battling his long illness seemed to permeate the mourners, so that his Funeral Mass morphed from an occasion of grief to one saluting his fortitude and celebrating his life.

The singular truth about Paddy was that he was a man of many parts, gifted in all he strove to do. He moved in many different circles. ften, friends and acquaintances in one such circle were unknown to those in another. It was as if Paddy lived deliberately in a system of parallel universes.

There were first and foremost the members of his family: Martine, his French wife, they were a married couple of 53 years, devoted to each other his four children, Jack, Sarah, Cally and Patrick the children s respective spouses his 12 grandchildren his brother, two sisters and sister-in-law. His four children were happily married and unusually in contemporary Ireland all lived near him.

Then there was his life as a solicitor. He built up the successful practice of Patrick Donaghy and Company in Dame Street, Dublin, a practice as versatile as its eponymous founder, dealing with all areas of the law.

His integrity and fairness exposed him to the risk of being categorised a solicitor of the old school.

His ability to see all sides of a problem, including those adverse to the interests of his case, assured the soundness of his advice to the client.

Paddy had a lifelong attachment to Terenure College, first as a pupil for ten years, then with

30 the Parchment

his two sons and grandson studying there. Nothing delighted him as much as seeing his eldest grandson, Harry, become Captain of the School in 2020. Rugby with Terenure, first with the school and later with the Senior Team, was a big part of his life, including the heartbreak of losing in the Leinster Schools’ Senior Cup Final 3 0 against Blackrock in 1964 playing in that match as Hooker opposite Ruairi uinn . Recently, just three weeks before he died, he was ecstatic at Terenure winning the All-Ireland League, beating Clontarf in the Final.

Through his marriage to Martine, he had numerous contacts with his French in-laws and also among the Francophonie both in Ireland and France. He and Martine enjoyed their pied- -terre in Nice, especially at the time of the Mimosa in Spring. He delighted, too, in the different customs and attitudes in the two countries.

Throughout his life, he enjoyed numerous sports particularly rugby, tennis and golf. In 1963, playing pitch and putt, he was the Junior National Strokeplay champion of Ireland. He was hugely competitive, seldom giving quarter. He was a dedicated, if not obsessive, yfisher and enjoyed many angling expeditions to Loughs Corrib and Mask and other venues in the West of Ireland, a hobby he enjoyed throughout his life right up to a few weeks before his death.

Late in life he showed a talent for painting. Although untrained, he produced works of excellence, a talent of which most of his friends were unaware, at least until recently. It was similar with his hobby of wood sculpture.

He kept a garden at his home on Palmerston Road,

Winter 2023 dsba.ie

Tribute

which was the envy of many and, at the end, frustrated by his inability to do physical work, he had to organise the gardening by directing others what to do.

He had numerous other pastimes: reading, the pera and Bridge. All of these interests, of course, entailed Paddy joining societies. It was as if he collected “Clubs”, the most important for him in his life being: Fitzwilliam Tennis, Grange Golf, Kildare Street and niversity, Terenure Rugby, Blessington Sailing, Enniscrone Golf, Templeogue Tennis, Brookfield Tennis, Dublin Trout Anglers and others.

Many of these various occupations and pastimes were hidden from people he knew, unknown because he rarely spoke about his life outside the circle in which he was at that moment. This was due to his innate modesty but, also, it was as if he was determined to keep his parallel universes just that: parallel but never meeting.

Paddy was a people” person. He loved people and they loved him. Despite his driven competitiveness, empathy came naturally to him. His family and friends will remember him as a kind, thoughtful and reliable person, someone who was good company, often full of mischief. He will be greatly missed by the huge number of his friends and acquaintances.

Leaving four children and twelve grandchildren he may feel like Abraham to whom the Lord said: I will make your descendants as many as the stars of heaven and the grains of sand on the seashore”, a legacy to posterity which he will share with his beloved Martine. P C.M.

TO ADVERTISE CONTACT: SHARON HUGHES TEL: 086 871 9600 E: SHARON@256CONTENT.COM

the Parchment 31

Contractor or Employee?

Alan Devaney scrutinises five questions for determining employment status and gives an insight to each one arising from a recent Supreme Court decision

Five Question Framework for Determining Employment Status – Welcome Guidance from the Supreme Court The Supreme Court has issued its highly significant judgment in the matter of The Revenue Commissioners v Karshan Midlands Ltd TA Dominos Pizza. This judgment clarifies the area of law relating to employment status and whether a worker is a contractor or an employee. This will be of interest to those working, and engaging workers, in the gig economy. The Court has reassessed the importance of mutuality of obligation, previously considered a cornerstone of the employment relationship, to now being one factor to be considered in the overall assessment of the contractual relationship.

The Court has set out a five-question framework to guide any assessment of employment status and to avoid misunderstandings of the law which have developed over time. This decision reaffirms the position as set out by the Supreme Court in Henry Denny & Sons (Ireland) Ltd v Minister for Social Welfare [1997] IESC 9 and confirms that the factors, which have developed in caselaw over 50 years, are still of relevance and should be used as guidance in determining employment status. A holistic assessment of the actual relationship between the parties is still required.

This case was an appeal taken by the Revenue Commissioners of a Court of Appeal decision which found delivery drivers for arshan to be independent contractors rather than employees, overturning the original decision of the Tax Appeals Commission.

Mutuality of obligation Previously mutuality of obligation was considered an essential requirement and a cornerstone of any 32 the Parchment

employment relationship. This was the position taken by the Court of Appeal.

The Supreme Court has now determined that mutuality of obligation is not the defining feature that differentiates a contract of service from a contract for services. Instead, it should be viewed as doing no more than describing the consideration that has to be present before a working arrangement is capable of being categorised as an employment contract.

Five-Question Framework The court has helpfully set out a five-question framework to guide any assessment of employment status, but this is not to be considered a legal test per se. Murray J said it was useful to identify factors that will be usually relevant to the inquiry”.

Below I will consider the questions and how these were applied in the arshan case: Question 1 – Remuneration & Contract Type “Does the contract involve the exchange of wage or other remuneration for work?”

The first question which must be asked is whether the relationship is one of labour in exchange for payment.

In furtherance of this question, the contract type must be identified and fall into one of the following categories: 1. A contract for a regular wage for work with ongoing obligations to pay and work.

2. A series of employment agreements governing the discharge of particular tasks.

3. An agreement to complete one identified task.

4. An ongoing agreement defined by an umbrella contract.

Winter 2023 dsba.ie Alan Devaney is a solicitor at RDJ, Dublin

Employment Law

5. Any combination of the above.

6. Is the agreement one for the exchange of labour for pay at all

the fact the substitutes were being paid directly by arshan and not by the driver meant it was more akin to an employment relationship.

Applied to the Karshan delivery drivers: The Court found that there was an umbrella contract between the arshan and the delivery drivers engaged.

They also found that remuneration was fixed by one side arshan and the price for each pi a delivery could not be negotiated.

Question 3 – Control “If so, does the employer exercise sufficient control over the putative employee to render the agreement one that is capable of being an employment agreement?”

This question relates to the party deciding the who, what, where, when, how, as follows: Who determines the way in which the work is to be done What work is required to be done Where the work is to be done When the work is to be done How the work is to be done The question is whether the company imposes control over the worker such as working hours, location of work, and methods of completing the work. In most employment situations, the employer has residual authority of how work is done. However, independent contractors usually retain autonomy on deciding the method and this is often linked to completing the task in the most efficient manner, to the satisfaction of the other party, to maximise the return for the contractor. Therefore, it is often difficult to look at control without looking at whether the contractor is carrying on business on their own account.

Murray J also commented that the level of control is often determined by how integral the work carried out is to the business.

Question 2 – Personal Services “If so, is the agreement one pursuant to which the worker is agreeing to provide their own services, and not those of a third party, to the employer?”

If the contractual relationship for labour has been established, then the next factor to be considered is whether it is one in which the worker is agreeing to provide their own services, and not those of a third party. The Court found that personal service is a requirement and not merely a factor. While some degree of substitution is permissible, such as where the worker is unable to carry out work, it must be consistent with personal performance to be an employment relationship. Any significant qualification placed on substitutes or discretion to refuse any proposed substitutes is more consistent with an employment relationship.

Applied to the Karshan delivery drivers: The Court found that the requirement for personal service was met and that the substitution clause in the contract did not involve an unqualified power to delegate work contracted for. The Court noted the facility for substitution on certain conditions, but

The Court noted the facility for substitution on certain conditions, but the fact the substitutes were being paid directly by arshan and not by the driver meant it was more akin to an employment relationship

Applied to the Karshan delivery drivers: The Court found that arshan exercised a high the Parchment 33

Employment Law

The Court only went as far as determining that the arshan delivery drivers were employees for taxation status only and that employment status, for the purposes of employment laws, would have to be determined in the relevant forum

level of control over the delivery drivers, including the operation of the rosters and weekly allocation of work, the manner in which the drivers dressed and advertised the brand and the number and extent of deliveries the drivers were to undertake.

Murray J also commented that the delivery drivers conducted a critical part of the arshan s business delivering pi as and advertising the business as they were doing it so considered them an integral part of the business.

Question 4 – Working Arrangement “If these three requirements are met the decision-maker must then determine whether the terms of the contract between employer and worker interpreted in the light of the admissible factual matrix and having regard to the working arrangements between the parties as disclosed by the evidence are consistent with a contract of employment, or with some other form of contract having regard, in particular, to whether the arrangements point to the putative employee working for themselves or for the putative employer.”

It is only if uestion 1 to 3 are answered in the affirmative, that the question is required. This question requires the evaluation of the actual dealings between the parties and the working arrangements in practice rather than the label placed on them.

Important here is the contractor s ability to make a profit from their own skills, and the need for investment on the part of the contractor, particularly in terms of tools and equipment used to carry out the work. Which party drafted the agreement and whether it was negotiated will be also important. The tax affairs of the contractor are of relevance, but only marginally according to Murray J. Applied to the Karshan delivery drivers: In his judgment, Murray J conducted an extensive analysis of the working arrangement between arshan and the delivery drivers. f the factors which indicated a contractor relationship, he noted the

terms and condition entered into, the fact the drivers were not required to work and the fact that drivers did not have to take orders from customers. n the other hand, he noted the following which indicated an employment relationship: ne party had drafted the agreement and there was no negotiation. The unequal bargaining power between the parties was also noted.

The drivers must commit to work a week or so in advance and if they were not required, they would still receive pay for being rostered.

They took little or no economic risk and there was very limited opportunity to increase the profitability of their work.

They could not substitute themselves or employ their own labour.

They worked exclusively from arshan s premises and wore uniforms and carried branding on their vehicles.

Question 5 – Legislations “Finally, it should be determined whether there is anything in the particular legislative regime under consideration that requires the court to adjust or supplement any of the foregoing.”

This question relates to the specific piece of legislation in which the employment status is being determined, for example any difference in the definition of employee, employer and contract of services under the relevant piece of legislation.

Findings In finding in favour of the Revenue Commissioners, the Supreme Court overturned the Court of Appeal decision and found that the arshan drivers were employees.

However, the Court was keen to stress the limited application of this decision and warned against a broad application of this decision to delivery drivers and workers in the gig economy. Any determination of employment status will still depend on the facts of the individual case. In fact, the Court only went as far as determining that the arshan delivery drivers were employees for taxation status only and that employment status, for the purposes of employment laws, would have to be determined in the relevant forum.

Key Takeaways This is a welcome decision because it provides a framework to follow when determining the employment status of a worker. However, the underlying factors and criteria which have developed over 50 years of caselaw remain relevant. ach working relationship will have to be assessed in a holistic manner to determine the relationship in practice.

It is hoped that a more uniform approach to determining employment status will now be taken by employment rights forums, tax authorities and social welfare authorities.

It is important for businesses engaging workers on an independent contractor basis to review their existing practices and working arrangements to determine whether they are indeed independent contractors or more akin to employees. P 34 the Parchment

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PATRICK AND ASSOCIATES

The Quintessential Advocate The Parchment’s Kevin O’Higgins caught up with Ronnie Lynam and chatted to him about his recent decision to retire after 40-plus years of criminal law advocacy

R

onnie Lynam was a constant presence for the past four decades on the criminal defence landscape, primarily in his local Court in Dun Laoghaire and in neighbouring Bray. He was ahead of the game in deciding to devote himself exclusively to crime when he made that decision in the early 1980s when legal aid was at its infancy.

Having trained in the city centre, and just qualified, he was happy to take the opportunity to work close to home in joining the Dun Laoghaire practice of Gabriel Haughton a veritable launching pad for several solicitors to follow including Gerry Lambe, en Byrne, and Niall Cawley.

Although a general practice, Gabriel liked his understudies to be thrown into the deep end. So, Ronnie found himself propelled into the local Court in Dun Laoghaire. This was where he found his passion for the law and the highly skilled practice of Court advocacy, nurturing a huge presence in that Court which endured for over forty years.

Having left Gabriel Haughton, Ronnie set up on his own on George s Street. While 36 the Parchment

The thing about deciding to take on legal aid work is that it can’t be delegated

initially amenable to taking on conveyancing and other work, in the reality that they pay the bills, he soon found that the non-Court areas were incompatible with the full-on commitment of a legal aid-based practice.

In those early days of legal aid, criminal lawyers from the City such as Michael Staines, rnie Hanahoe, Dermot Morris and others would frequent Dun Laoghaire Court on an occasional basis. Gerry Lambe might also have dipped his toe in for a while as well, as did en Byrne later on. The city practitioners would have their own following but bit by bit Ronnie was cultivating a local clientele. This was both good, not just for the town, but also for the Court, where familiarity with the Court and the particular likes or dislikes of the Judge was of great importance.

It was around this time in the mid 1980s that Ronnie had a decision to make.

Continue to dabble in other areas or concentrate exclusively on crime. At that stage with a young family, legal aid was not a big payer and of course still isn t but with a regular following and a certain volume, it

Winter 2023 dsba.ie Kevin O’Higgins is principal of Kevin O’Higgins Solicitors. He is a former President of both the Law Society and the DSBA. He is a former editor of the Parchment

Interview

the Parchment 37

It s important that the solicitor advocate recognises his or her key role in that drama and upholds that respect for the Court and upholds our professionalism could become feasible.

So, having shed himself of all other areas of work, he decided to go all out and devote himself exclusively to the Court work and whatever it had to throw his way. “The thing about deciding to take on legal aid work is that it can’t be delegated. Once you take it on you have to stick with it. It’s a case of all or nothing.”

With his mother Georgie as his genial but firm gatekeeper, back in the office managing his diary and back office, this would enable Ronnie to throw himself exclusively into the daily attrition of District Court advocacy.

When the need arose, as it did, he would also cover the City Courts such as the Bridewell - this being the pre-CCJ days. “It meant long days perhaps from a.m. Doing a full day in Court, and then returning to the office for appointments and paperwork from that day in Court. So, 1 -hour days were the norm.”

Partners at Law came calling and provided Ronnie with some welcome respite. The new firm was an amalgam of three other experienced practitioners from the town including Justin Mc enna, Brian Gardiner and Rory O’Riordan. Ronnie was to become the other piece of the jigsaw. The new firm was and of course still is a private client, business-focused firm, and the addition of a 38 the Parchment

seasoned District Court practitioner was a terrific accessory.

For Ronnie, it relieved him of much of the administrative burden of sole practice enabling him to concentrate exclusively on his practice area. There were huge benefits in the accrued knowledge of being in Court on a daily basis. Acute awareness of the Court’s moving parts become second nature - whether it be the prosecuting Garda, the Court Registrar, Probation fficer or State Solicitor. A reservoir of intelligence is built up to the advantage of any experienced Court advocate. ver the years, many Judges have passed through Dun Laoghaire Court. lder readers will remember Malcolm MacArthur famously being charged with the double murder in the old Court House down the lane beside Johnny Hooper s office, now a modern post office. As befitting its status as the grand old dame Dun Laoghaire formerly ingstown generally has had the benefit of a permanently appointed Judge to its Court.

Ronnie lists off those Judges Wallace, Delapp, Wine, irby, Hamill, Clare Leonard, and presently Judge Watkin.

Ronnie believes that respect for the Court, its procedures and for the presiding

Judge are paramount. He has seen first hand, incrementally, a dip in standards and can be critical of our own colleagues from time to time. “The Court, particularly at a local level, is the People’s Court. A place where Society meets in various degrees of dishevelment.

Sometimes chaotic, other times becalmed. And so, it’s important that the solicitor advocate recognises his or her key role in that drama and upholds that respect for the Court and upholds our professionalism as being at the pinnacle of what we do and how we represent ourselves.”

But that is not to mean that one has to be subservient to the Judge. If you feel the Judge has lost the plot you challenge him or her. On one occasion when Ronnie did just that, Judge irby who was not best pleased demanded an apology and walked off the bench. The stand-off lasted a while. But Ronnie felt he had no reason to apologise, and the Judge eventually relented.

Anecdotally, he tells of a colleague bra enly peeling an orange in open Court “That shows disrespect and presents a poor image to the members of the public present in Court.” I ask him about the importance of knowing your Judge and he agrees that awareness of the presiding Judge is crucial. “You don’t learn that in a textbook. These are skills honed and perfected over time. Watching, listening, observing taking it all in.”

I was interested in probing Ronnie further on cases that stand out for him. In particular cases that started in his Court in Dun Laoghaire and then grew legs. He s reticent to blow his own trumpet but I gather he had a few in fact many, but on further pressing he offered a few which stick out for him.

He remembers with fondness his client Frank McDonagh DPP V McDonagh Dun Laoghaire Court. It was a drunk driving charge where his client was required to give two specimens of breath. One specimen was given but was incomplete. Two further specimens were given, and the question was whether the certificate was based on the second or third specimens being deemed admissible or whether there was more than one requirement made. Ronnie questioned whether it was permissible to seek two further specimens after one was already given in an incomplete test.

Theses were the issues arising from Ronnie’s case before Dun Laoghaire Court.

The matter made its way to the Supreme Court to decide whether the Circuit Court was entitled to hold that there was no bar on a Garda making a requirement under S.13 1 Road Traffic Act 1964 of an arrested person to provide two specimens of their breath notwithstanding the provision of one incomplete breath specimen within a previous incomplete test result.

Winter 2023 dsba.ie

Interview

Photography: Bryan Meade

In Dun Laoghaire Court Ronnie had submitted that no power existed for the Gardai to require a person to provide a third specimen. The Supreme Court Denham, Macken, Finnegan Js agreed the right to due process which required the system to be fair. The machine only issued the Section 1 certificate on foot of two samples from the same attempt. A system which could ignore a lower sample in favour of two subsequent higher samples was not fair. The first attempt failed to give any sample and the second was incomplete as only one specimen was given.

There could not be a third attempt if only the specimens on the third attempt were the basis for the certificate.

In another well-known case, on account of the political outcry which it understandably unleashed, Ronnie s client was charged with statutory rape. The case was CC V Ireland, and the case report is summarised as follows: “Criminal law nlawful carnal knowledge Defences Mens rea equirement of mens rea not expressly stated in statute vailability of defence Whether o ence of unlawful carnal knowledge one of strict liability Whether knowledge or reasonable belief as to age of complainant constitutes defence Whether defence of mistake open to accused Whether defence of consent of complainant open to accused.”

The Supreme Court held that a provision which criminalised and exposed a person without mental guilt to a maximum sentence of life imprisonment failed to respect the liberty or dignity of the individual and constituted a failure by the State to vindicate the right of the citi en to liberty and his good name - rights so rooted in the traditions of the Irish people as to be ranked as fundamental.

The case led to protests outside the Dail and the full Joe Duffy treatment. Amending legislation was rushed through the Dail and enacted within a week.

So once again the eagle-eyed Ronnie, in the defence of his client at District Court level, had spotted a lacuna and used it to his client s advantage and was vindicated by the highest Court in the land.

Mention of Judge irby earlier and Ronnie s fractious relations with him brought to mind Whelan V Judge Kirby.

Again, another case that went all the way and I sense one that gave Ronnie immense satisfaction. It got to the Supreme Court following a refusal of the High Court Caoimh J to grant judicial review arising in turn out of the refusal by Judge irby of an application for prior inspection of an intoximeter situated at Dun Laoghaire Garda Station, the printout from which was to be used in connection with prosecutions of the appellant for alleged offences under s. 49 4

of the Road Traffic Act, 1961 as inserted by s.

10 of the Road Traffic Act, 1994. Ronnie had sought a Gary Doyle-type rder. However, Judge irby refused him. The Supreme Court found that in so doing, the Judge was depriving Ronnie s client from any possibility of rebutting the statutory presumption and in circumstances where there was no State objection. This unfairness, the Court found, was fatal to the convictions and should be quashed on certiorari grounds that the applicant had been unfairly refused. n lighter matters, Ronnie once had the temerity to subpoena then Taoiseach Charles J Haughey. His client was charged with throwing a can of paint his way. The State

could provide no evidence from the victim and Ronnie felt this would be both normal and appropriate. He was met with shock, incredulity and derision from the authorities.

But the charges were dropped and there was no appearance from CJH God knows what Ronnie will do now in retirement. He s a handy golfer. Looks incredibly fit and trim. He and his wife Sharon have three daughters mma, and Sarah, a solicitor and vet respectively and both in London , and Laura, another doctor presently in Australia. Ronnie Lynam can look back on a very fulfilling legal career where he served the people of Dun Laoghaire, and beyond, very well. P the Parchment 39

Avril Scally is partner and Head of the Medical Negligence team at Lavelle Partners LLP. She is a member of the DSBA Litigation Committee

Litigation

Personal Injuries Summons Renewal Avril Scally assesses the recent decision of the High Court in Murphy v Depuy Ireland nlimited Company [2023] I HC 220 which is of great relevance for personal injuries summons, demonstrating that a failure to serve same within the requisite time period may not necessarily prove fatal

Background to Personal Injuries Summons The plaintiff in this case was an employee of the defendant and, having sustained injuries in the workplace, issued a personal injuries summons on the th of May 2021. However, the 12-month timeframe for service of personal injuries summons elapsed without said service. Notwithstanding this, on the 1 th of May 2022 i.e., 10 days after the expiry date , an application was brought in accordance with Order 8 of the Rules of the Superior Courts to renew the summons, which ultimately proved successful.

Special Circumstances On the presence of special circumstances or lack thereof, the Court acknowledged that the plaintiff s solicitors had lost a total 133 staff days in 2021 as a result of illness and this was held to be a special circumstance. Whilst retirement and maternity leave were foreseeable, their combination with sick leave amounted to special circumstances.

Influential Factors

Excusable Inadvertence

In allowing the application, the Court was in uenced by several factors, notably the absences within the plaintiff s firm caused by Covid-19, retirement, sick leave and maternity leave. The plaintiff also cited an inability to obtain expert reports and that there were 3 analogous claims against the defendant in being.

Nevertheless, the defendant subsequently entered an appearance and issued a Notice of Motion opposing the decision.

Of note, the Court observed that inadvertence prevented the service of the summons, yet the culmination of factors impacting the firm meant that this inadvertence was excusable. Mere inadvertence” alone would typically be insufficient grounds to permit a renewal, yet inadvertence exacerbated by special circumstances, such as destruction of a firm s office, could justify a renewal.

Consideration of Applicability of Special Circumstances

The Court further stated that regard must be had to the length of time taken to set about renewing the summons Brereton and it also determined that the defendant was on notice of the plaintiff s claim.

For example, a PIAB authorisation had issued in November 2020 and there was email correspondence between the firms. Moreover, the Court considered that the defendant was not prejudiced by the 10-day delay, another factor which enabled the renewal to stand.

When the matter came before the High Court, considerable consideration was given to the applicability of special circumstances in the context of renewing a summons. In allowing the renewal to stand, Barr J observed that Order 8 of the Rules of the Superior Courts allows a summons to be renewed when a court is satisfied as to the presence of special circumstances that justify an extension of time. The test for such circumstances was detailed in Murphy v HSE [2021] and the court retains a discretion to allow a renewal. Furthermore, the Murphy decision requires a court to have regard to the balance of justice between the parties.

10-Day Delay Deemed Permissible In the present case, the Court was of the view that the aforementioned 10-day delay was merely de minimis and therefore permissible , considering that a 10-week delay in respect of a requirement to serve a summons within 12 months was deemed sufficiently short to 40 the Parchment

allow an extension in a previous decision of the High Court Brereton v National Maternity Hospital [2020] .

Length of Time to Renew Summons

Conclusion In conclusion, the ruling of the Court was underpinned by the plethora of operational issues affecting the plaintiff s solicitors, the speed in which a renewal was sought by the plaintiff and the absence of prejudice caused to the defendant. Moving forward, this decision should provide clarity as while it is most certainly preferable to serve a summons before its expiry, a delay which is not inordinate should not prevent a renewal where special circumstances exist to justify an extension of time. P

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New Irish Investment Screening Regime David Mangan outlines the purpose of the new Irish investment screening regime and how it will be implemented in practice

The background A new Irish foreign investment screening regime was enacted on 31 ctober 2023 via the Screening of Third Country Transactions Act 2023 the Act” .

The Act was developed in response to the Investment Screening Regulation 2019 452 the Regulation” and re ects wider international concerns to address the security implications of cross-border investments.

While Ireland has been relatively late in adopting investment screening the Act is expected to come into full effect in 2 2024 , we are still in the early years of operation of screening regimes in most other Member States. It remains to be seen whether regulatory convergence will emerge in time as a natural consequence of cross-border cooperation.

Affected Sectors The key feature of the Act is that it empowers the Minister for nterprise, Trade and mployment the Minister” to prohibit FDI transactions or impose conditions according to a range of security and public order criteria.

The Act applies to FDI transactions that relate to or impact the following areas: • Critical infrastructure, whether physical or virtual, including energy, transport, water, health, communications, media, data processing or storage, aerospace, defence, electoral or financial infrastructure, and sensitive facilities, as well as land and real estate crucial for the use of such infrastructure.

• Critical technologies and dual use items that can be used for both civil and military 42 the Parchment

purposes, including artificial intelligence, robotics, semiconductors, cybersecurity, aerospace, defence, energy storage, quantum and nuclear technologies as well as nanotechnologies and biotechnologies.

• Supply of critical inputs, including energy or raw materials, as well as food security.

• Access to sensitive information, including personal data, or the ability to control such information or • The freedom and pluralism of the media.

Notifiable Transactions The Act prescribes a mandatory notification system for in-scope transactions both share and asset transactions a transaction is notifiable where: A third country undertaking as described below or a person connected with such an undertaking, as a result of the transaction: acquires control of an asset or undertaking in the State or changes the percentage of shares or voting rights it holds in an undertaking in the State from: 25 per cent or less to more than 25 per cent or 50 per cent or less to more than 50 per cent.

• The transaction relates to, or impacts upon, one or more of the relevant matters as described below .

• The same undertaking does not, directly or indirectly, control all the parties to the transaction i.e., purely intra-group transactions will not trigger a mandatory filing and The cumulative value of the transaction in question, as well as any other transaction between

Winter 2023 dsba.ie David Mangan is a partner in the Corporate Department at Hayes Solicitors

the relevant parties or persons connected to them in the 12 months prior to the signing of the transaction, is equal to or greater than an amount to be specified by the Minister or, in the absence of specification, €2 million .

For these purposes, a third country” means a country other than a member of the A or Swit erland and a third country undertaking” means an undertaking that is: a constituted or otherwise governed by the laws of a third country b controlled by at least one director, partner, member or other person that i is a person referred to in a or ii is a third country national or c a third country national.

From an Irish point of view, it is important to note that the falls into the category of third country” for the purposes of the Act. Notification under the Act is mandatory. There is no provision for voluntary notification. However, the Minister can still decide to call-in” for review an unnotified or non-notifiable transaction.

The Minister can review a non-notified transaction up to i five years from the date on which the transaction is completed or ii six months from the date on which the Minister first became aware of the transaction. The Minister s power to review a non-notifiable transaction is exercisable up to 15 months after the transaction is completed.

The Screening Decision nce a transaction has been notified, the Minister must make a decision as to whether the transaction

Finance

affects, or would be likely to affect, the security or public order of the State a Screening Decision .

The Screening Decision must be issued within 90 days of the date of commencement of the Minister s review which begins to run from the date of issue of a screening notice to the notifying party . The review timetable can be extended to 135 days.

A Screening Decision will either authorise the parties to complete the transaction either with or without conditions or prohibit it on security or public order grounds.

Appealing a Screening Decision A party may appeal a Screening Decision to a statutory adjudicator within 30 days of the date of notification of the Screening Decision. The decision of an independent adjudicator may be appealed on a point of law to the High Court.

The Act specifically provides that a decision of the Minister or an adjudicator may also be challenged by way of judicial review.

Conclusion As an open economy that has enjoyed an extraordinary economic ascent via the attraction of FDI, Ireland has much to lose by imposing excessive restrictions on inbound investment. The new Act represents a major departure in this regard, and stakeholders will be looking with interest at how the new Irish regime is operated in practice once it comes into full effect in 2 2024.

Similar to merger control analysis, it seems that investment screening will join the basic checklist for cross-border transactions in future. P

As an open economy that has enjoyed an extraordinary economic ascent via the attraction of FDI, Ireland has much to lose by imposing excessive restrictions on inbound investment

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Sarah McCague is a partner and part of the multi-disciplinary Charity Law Group in Arthur Cox. The author acknowledges the contributions to this article of both Philip Smith and Anne Corrigan, partner and senior associate in Arthur Cox. www.arthurcox.com/services/charities

The Legal Duties of Charity Trustees – SOME KEY AREAS

Sarah McCague assesses some of the key areas that trustees of charitable bodies should bear in mind when considering their legal duties and gives some practical steps to follow

A

s many charity trustees may be aware, it is important to consider their roles and responsibilities under Irish law. These duties can arise under the governing document constitution of the charity, the Charities Act 2009 or under other legislation and common law. Charities that are incorporated as companies limited by guarantee also have obligations under the Companies Act 2014 as amended .

Prepare and Plan Charities are required to have certain policies and procedures in place that deal with areas such as data protection, fundraising, volunteers, finances, and inquiries into breaches of compliance. The Charities Regulatory Authority the CRA” has created a Compliance Record Form which is used to outline and evidence the actions taken by a charity to adhere to the Charities Governance Code. Although charity trustees are not required to file this form with the CRA, the CRA may request a charity’s record form at any time. The Compliance Record Form should be updated annually, so the charity is in a position to readily respond to any such request. The form serves as a useful guide for trustees to identify and monitor key operational areas of their charity that can give rise to potential issues such as con icts of interest . This enables them to devise responses that can be put in place to address those issues such as a code of conduct for trustees .

Review and Update Policies and Procedures It is critical that safeguarding policies, procedures, and practices are made available to the public and are reviewed annually in order to ensure that these policies remain effective in response to serious incidents. The 44 the Parchment

policies should clearly address how concerns may be raised and the procedures that follow, including the reporting of allegations to the relevant authorities.

The policies should be updated regularly to re ect any changing statutory requirements and newly identified potential risks faced by a charity. The trustees should take steps to ensure that the charity s staff and volunteers are familiar with the safeguarding policies and the importance of implementing them, thus encouraging good practice and accurate record-keeping within the charity.

Notify and Respond to Concerns A trustee of a charity who is concerned about the charity, or who becomes aware of such a concern, should first raise this concern with their board. Past investigations by the CRA into non-compliant charities have highlighted inadequate action taken by the board to address compliance concerns raised about the charity. When a board becomes aware of any issues, it has a duty to act in a timely manner. Should the situation remain unresolved, the concerned trustee should then raise the concern with the CRA.

Take Appropriate Advice Trustees have a duty in areas in which they are not expert to take appropriate advice to ensure the good and proper management of the charity. Once such advice is received, it must be followed and if it is not, the reasons for the actions taken by the board must be documented. Again, past investigations by the CRA into non-compliant charities have highlighted a repeated failure to follow appropriate advice.

Trustees may rely on the advice of employees, consultants, or advisors when putting appropriate arrangements or structures in place to manage the

Winter 2023 dsba.ie

Trust Law

charity. However, trustees cannot turn a blind eye to potential issues. If they become aware of facts that could reasonably be regarded as indicating that a default has occurred, they must take appropriate remedial action.

Charity trustees should resort to legal advice where necessary to guarantee the best interests and viability of the charity. Taking professional advice where appropriate will minimise the risk of things going wrong.

Implement Good Governance Practices Practising good governance will serve to provide an extra layer of protection to the trustees of a charity.

Minor actions such as ensuring that the minutes of a meeting are recorded accurately, and requiring that key decisions are written down, re ect good practices that should be implemented by charity trustees.

Manage Conflicts When things go wrong for charity trustees, the situation often involves non-compliance due to financial mismanagement or a failure to disclose a con ict of interest. At all times, a trustee must ensure that they are acting within the law and specifically in accordance with their fundamental duty of loyalty to the charity and its best interests. nce a trustee identifies an actual, potential, or perceived con ict of interest, this con ict must be entered into the charity s register of interests and also raised with the board of trustees.

Conduct Risk Analysis Charity trustees should implement a risk management system that identifies, evaluates, and manages possible risks facing the charity. Charities are encouraged to put a risk register in place, which necessitates discussion

amongst the trustees to identify and record all potential risks facing the charity, and how they would manage that risk if the threat level escalated. A charity’s risk policy should explain how concerns can be raised, and how the trustees will respond to such concerns including by reporting to the relevant authorities where appropriate .

Disclose Theft and Fraud If, in the course of a trustee’s duties, they come into possession of information that provides them with reasonable grounds to believe that an offence under the Criminal Justice Theft and Fraud ffences Act 2001 has been or is being committed, that trustee has a duty to disclose this to the CRA via a report in writing outlining the particulars of the grounds upon which the concern was formed.

Prepare for CRA Enforcement Initiatives

Charity trustees may be held personally liable for any loss or damage that the charity sustains as a result of their actions

In 2022, the CRA dealt with over 500 reported concerns, opened two statutory investigations into charities, and published one inspector’s report. In July 2023, the CRA announced that it is involved in a “targeted compliance and enforcement initiative in order to bring non-compliant charities into compliance”. The consequences of breaching a trustee’s legal obligations are serious. Charity trustees may be held personally liable for any loss or damage that the charity sustains as a result of their actions. In addition, the trustees of charitable trusts and unincorporated associations may be held personally liable for the debts of the organisation. If it becomes necessary for the trustee of a charity to defend against any action for loss or wrongdoing, it is crucial that they can demonstrate that they have taken all reasonable and practical steps to act in the best interests of the charity. P the Parchment 45

Gráinne Dever is a partner and Robyn Pim is a solicitor at Matheson LLP

Litigation

Remote Swearing of Affidavits Extended to Circuit Court The provisions of the Circuit Court Rules dealing with affidavits have been recently amended. Gr inne Dever and Robyn Pim evaluate the new Rules

When an affidavit is being sworn by videoconference the reasons why it is not practicable for the deponent to attend in person must be brie y outlined in the affidavit

46 the Parchment

W

ith effect from Friday, 3 November 2023, the Circuit Court Rules Affidavits 2023 SI No. 526 of 2023 the SI No. 526” makes provision for the remote swearing of affidavits, as well as introducing new requirements which must be included in all affidavits.

The changes bring those provisions of rder 25 of the Circuit Court Rules broadly in line with the commensurate provisions of rder 40 of the Rules of the Superior Courts, which was replaced in 2021 to allow, inter alia, for swearing of affidavits by videoconference.

Remote Swearing of Circuit Court Affidavits The new rules allow for affidavits to be sworn either in the physical presence of the Country Registrar, a Commissioner to administer oaths for the High Court or a practising solicitor the fficer” or, where that is not practicable”, by videoconference.

When an affidavit is being sworn by videoconference the reasons why it is not practicable for the deponent to attend in person must be brie y outlined in the affidavit. A number of conditions must also be complied with, including: A copy of the affidavit either in hard or soft copy , copies of any exhibits and, if required, a certified copy of the relevant document the deponent will use to verify their identity must be provided to the fficer. This can be done in advance or at the videoconference.

To allow the swearing to proceed, the fficer must be satisfied that: o the deponent and the fficer can both be seen and heard by each other o before the affidavit is sworn the requirement in the jurat concerning the identification of the deponent to the fficer must be met o the deponent has access to the appropriate sacred text for taking the oath.

The deponent must within sight and hearing of the fficer: o produce the original of any document used to verify their identity o identify each page of the affidavit and all

exhibits referred to o sign or mark all exhibits and o sign and swear the affidavit.

The sworn affidavit and any exhibits must then be sent to the fficer, for attestation.

Before attesting the affidavit and signing or marking any exhibits, the fficer must be satisfied the affidavit and any exhibit is the same as the document identified to them during the videoconference. If relevant, the fficer will also sign and append the certified copy of the relevant document used by the deponent to verify their identity and The jurat must include the date on which the affidavit was signed by the deponent, where the fficer was when taking the affidavit and the fact the affidavit was sworn by way of videoconference.

New Requirements SI No. 526 expands the requirements regarding information about a deponent which must now be included in an affidavit. All affidavits must state the deponent s description, trade, profession or employment, as well as their place of business, trade, profession or employment or their true place of abode”.

The rules relating to the requirements of jurats in Circuit Court affidavits have also been expanded. nder SI No. 526 where a document containing a photograph of the deponent is being used to establish their identity, this must now be specifically certified in the jurat and particulars of the document provided. This change brings the Circuit Court Rules in line with the Rules of the Superior Courts.

When affidavits are being sworn all of the new requirements brought in under SI No. 526 must be complied with. Taking affidavits remotely may not expedite the process of swearing an affidavit and it does not appear to be the intention that it is to become the default position. The reason for taking the affidavit remotely must also be considered carefully given it is to be outlined. The updated rule will be of assistance in many situations particularly with increased remote and hybrid working arrangements. P

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The Pitfalls of Shares – Pre and Post Death Many clients work diligently with their financial advisors to create financial assets that work hard for them but often overlook the impact these might have on the administration of their estate in the future. Janet Byrne outlines some challenging issues when dealing with shares pre and post death and how to avoid them

Pre-death Planning When taking instructions from a client who is drawing up a Will, it might be useful to ask them if they have any shares in public or private companies.

In this instance I shall deal with just those shares that are listed on a stock exchange.

I set out some questions to assist in assessing what problems might arise with clients who have shares: 1. Approximately what is the value of the shares 2. How are the shares held in joint names or sole name 3. Are the shares held by a stockbroker which one and if an on-line broker, who has the username and password to access the account or what are the arrangements that the stockbroker has in the event of the client s death and is there more than one stockbroking account 4. If they are held with the relevant registrars a. Are they paper share certificates or electronic shareholdings ou need to work out the locations of the shares for the purposes of inheritance tax as it is not always as obvious as where the company is quoted or where the company itself is registered. ou can then broadly identify if there is an exposure to foreign tax consequences or the estate might 48 the Parchment

require a secondary foreign Grant of Representation.

What is the client s attitude to this Some clients don t care, and some will want to keep things simple for their heirs.

Post Death First Steps As you prepare the SA2 you will need a formal valuation of the shares at date of death but why use a professional to do this 1. Where possible we will check the holding with the relevant registrars institution.

2. Why As you cannot just rely on the share certificates to give you an accurate picture of the shareholdings by simply adding up all the certificates for example, Vodafone have done two stock splits since 2005 one in 2006 and one in 2014.

3. Revenue prescribed formula to calculate the value.

4. We will also highlight if we believe that the estate might need a foreign Grant or have a potential liability to a foreign tax.

Location of Assets for the Calculation of Inheritance Tax Liability The location of assets for the purposes of inheritance tax liability is not necessarily what you might suppose it is not the location of where the shares are traded, it is not where the company is registered, but it is in fact

Winter 2023 dsba.ie Janet O’Byrne is the managing director of Seapoint Probate Services. She specialises in private client stockbroking and the administration of shares in deceased estates

where the shares are administered from such as the location of the registrar.

However, there are a few anomalies Diageo Link Asset Services are the registrar, and they are located in Leeds in the , however in this case Link Asset Services run a branch register” for Irish shareholdings in this company, thus making it an Irish asset for inheritance and this means it should be entered as an Irish asset on the SA2 and can be administered by an Irish Grant of Probate.

Post Grant – Once the Irish or Primary Grant has issued p until this time any shareholdings are held in suspense and no action can be taken, the shares cannot be sold or transferred, no corporate actions can be accepted or rejected and the address cannot be changed. nce the Irish or Primary Grant of Representation issues, only now can the active administration start.

Irish and UK Shares To formally note the death on the shareholding either the original or a court-attested copy of the Irish Grant needs to be physically sent to the registrar to note the death in the case of Irish shares.

At this time, we will also check that the holding

Probate / Financial

has not changed, that the share certificate s are all present and correct and request that any and all uncollected dividends are paid out to the estate. We usually send the original share certificate s with the Irish Grant so that the certificates are reissued to the estate. This makes it very clear then if the next step is being done by somebody else that the death has indeed been formally noted.

The registrars in Ireland and the do have a system to formally note the death on shareholdings without an Irish Grant or an nglish Grant as long as the shareholding meets certain criteria the registrars also charge a fee for this service.

This small estates” process is carried out by the Legal Personal Representatives in the case where there is a Will or by the next of kin in an intestacy.

The Computershare and Link Registrars small estates procedure results in the shares being registered in the name of the estate, however quiniti transfers the shares to the xecutors Next of in. The Irish Grant can be used to support the small estates application in the .

However, if the shares do not meet the small estates threshold, then an nglish Grant will need to be extracted.

Please note that there is no such thing as a grant of probate from nondomiciled estates. If

The location of assets for the purposes of inheritance tax liability is not necessarily what you might suppose

the Parchment 49

Probate / Financial

to prove the holding and identity of the person who has signed the document in order to obtain a medallion stamp.

US Federal Estate Tax

you have assets as a nondomicile in ngland and Wales, Scotland, Northern Ireland or Jersey etc . then it is conceivable that you might have to extract a grant in each region territory. However, HMRC return covers the whole of the nited ingdom.

ne of the problems dealing with S shares is that if you write to the S registrar asking them to confirm the quantity at the date of death they will not reply until you send the Irish Grant

50 the Parchment

US Shares S shares have a completely different process and, depending on who the transfer agent is, the document set to formally note the death will vary.

The major requirement is that the transfer documents have to have a Medallion Stamp on them see below . ne of the problems dealing with S shares is that if you write to the S registrar asking them to confirm the quantity at the date of death they will not reply until you send the Irish Grant and you can explain that it is required to make a tax return including one for the IRS in some circumstances but they still will not give you the information. The dividend vouchers are your most useful tool in this circumstance. ne other pitfall is escheatment of shares. These are shares that have been deemed abandoned by the State of Incorporation in the S. ou can claim these shares back.

Medallion Stamps Medallion stamps are a green bar-coded stamp that is applied to all transfers of S shares, in many cases they are not even visible to the client, however they are very visible in estates They work like an insurance indemnity bond that the signatures on the transfer document are valid and are an anti-fraud tool used by the S and Canadian securities market.

In the S these are easily obtained and in many cases the S bank or securities house will provide them free of charge, however outside the S and Canada this is far from the case. There are no Medallion Stamp providers in Ireland, and I get them from the , and they cost Stg 200 per stamp for a stamp up to the value of S 500,000. ou will need to provide a number of documents

This is another factor in dealing with S shares the requirement for non-resident aliens to file a tax return if they hold S assets over the value of S 60,000 at the date of death. This needs to be done within nine months of the date of death and can be started without the Irish Grant issuing. If you are late paying and filing the tax the penalties and interest can accrue to 25% of the tax within three months.

There are also a few issues to watch out for with S Federal state Tax Firstly, there is no spousal exemption so if the assets are passing between spouses, then there is no tax relief to offset the tax against.

If the assets are in joint names, the IRS look through the joint holding and ask who has paid for the asset, so putting shares into joint names for convenience does not reduce this tax liability by 50%.

This is a rising scale tax, so the larger the value of the assets, the larger the tax liability.

It does not matter if the shares are held by an Irish custodian if underlying shares would be managed by a S transfer agent, then they are S assets, and the legal personal representatives should distinguish between access to the asset and their obligation to pay the tax of a foreign jurisdiction. ou can offset estate expenses against some of the S tax but only on a pro-rata basis, so if the S assets are 20% of the entire estate, then you are allowed offset 20% of the expenses against the tax due.

There is a double taxation treaty between the S and Irish tax authorities and any you can get a credit on any tax paid in the S against any tax paid here, however it is at the lower of the two rates.

The final problem is that S Federal state Tax is only payable by S dollar bank draft, and these are increasingly difficult to get. ou cannot pay electronically as the estate does not have a S Tax Identification Number to accompany the payment in the first instance and then you are paying a S government institution rather than a bank and they do not provide an IBAN or all the details required to transfer funds successfully. From the time you submit the tax return it takes -8 months for the IRS to issue the tax identification number and sometimes longer and if you were to defer payment until then further interest would have accrued.

The last pitfall is that the IRS are currently taking about 24 months to issue these tax certificates.

However, if you are S resident, citi en or green card-holder then the S Federal state Tax threshold increases to S 12,920,000 for 2023.

Small shareholdings that are too small to sell what can be done?

My suggestion is that the share be donated to ShareGift, which is a charity that takes small quantities of shares, adds them together and then sells them in larger blocks and then donates the proceeds on to a basket of Irish charities for those donations coming from Ireland. I don t charge to make the donation but would need to charge to deal with the noting of death to get them to the point of donation. P

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Matthew Kenny is new DSBA President The AGM of the Dublin Solicitors Bar Association took place at the Westbury Hotel on the 24th October 2023. Matthew Kenny was elected as the new DSBA President for 2023-2024. He is pictured here with outgoing president Susan Martin.

Galway Dinner

Online WillFinding Service A first-of-its-kind digital will-finding service WillFinder - has been launched across Ireland enabling members of the public, and solicitors, to locate wills of deceased persons ensuring that they act upon the wishes of the most recent wills made by testators, or to avoid inadvertently assuming an intestacy has occurred.

The online service will enable single regional searches, or multiple searches, reducing time and costs associated with finding and acting upon wills.

Helping Solicitors Find Wills

Stephanie Coughlan, President of the Galway Solicitors Bar Association (GSBA), and the DSBA’s Matthew Kenny at the GSBA annual dinner at the Hardiman Hotel, Galway on the 3rd November 2023 52 the Parchment

Prior to Will Finder, Irish solicitors either had to hope that they held the deceased’s most recent will or write numerous letters hoping to find a will if none could be found in the most obvious location usually inside the deceased s property . tilising latest technology, Will Finder transforms will location for solicitors by simplifying the often complex and daunting process of will location, making it more accessible and efficient for everyone involved. The platform streamlines the administrative burden associated with finding wills by asking all the relevant questions needed for the search on the website.

The platform s user-friendly interface guides solicitors through the entire

process, from inputting information to uploading documents. This time-saving solution enhances productivity, allowing solicitors to focus on providing expert advice and personalised services to their clients, ultimately strengthening client relationships and boosting revenue.

Geoff dds, chair of the International Association of Professional Probate Researchers IAPPR , commented: We re hugely encouraged that Ireland now has access to a digital service that ensures that the deceased s final wishes are carried out, giving them peace of mind. Will Finder is set to become a game-changer in Ireland’s legal landscape, fostering greater transparency, due diligence, accessibility, and convenience in the realm of estate administration. With its innovative approach, it empowers both solicitors and the public, ensuring that every citi en can efficiently and effectively search for a will.”

Maeve Mullin, director of Finders International Ireland, the probate research firm that launched Will Finder across the Republic, commented: In the course of our work on assumed intestacy cases, we have found wills at a later stage of investigation many times. Will Finder creates an inexpensive first step which will prevent an estate being wrongly claimed by intestate heirs.”

Winter 2023 dsba.ie

News

Arthur Cox Managing Partner Reappointed Arthur Cox has reappointed its Managing Partner Geoff Moore to serve a second fouryear term, which commenced in November 2023.

Geoff Moore has served as Arthur Cox s Managing Partner since 2019 and as a Partner since 2007. Prior to his current role, he served as Co-Head of the firm s Corporate/M&A Group specialising in mergers and acquisitions and strategic advisory work for leading corporates.

Mr Moore’s tenure as Managing Partner has straddled Brexit, the Covid pandemic, the rise of ESG and dramatic changes in ways of working adopted by the firm and its clients. His new term coincides with the rise of AI, record planned investment in energy transition and climate change measures, and

increased regulation and reporting across all sectors amidst changing dynamics in global capital markets on foot of increased interest rates.

Speaking on his reappointment as Managing Partner at Arthur Cox, Geoff Moore said: It has been a roller-coaster four years during which it has been our privilege to advise on some of the largest, most complex and interesting deals in our firm s history, whilst also assisting clients navigate increasingly complex regulatory environments. My next four years will be about continued investment in our client services and people to support and capitalise on emerging challenges and opportunities in areas like climate change, AI and everchanging capital markets.”

Geoff Moore 48 is from Cork, graduated from UCC in 1996 and holds an MLitt from TCD. He joined Arthur Cox as a trainee in 1998, left for two years to work in the corporate finance group of a leading New ork firm and returned to the firm, being made a partner in 2007.

Commenting, Orla O’Connor, Chair of Arthur Cox, said: Geoff s progressive approach to client services and how we operate as a firm underpins our tier 1 status in the provision of premium work for our dynamic national and international client base. His strong emphasis on investment in people leaves Arthur Cox optimally positioned for continuing growth in an increasingly diverse and dynamic business and working environment.”

New Managing Partner at Addleshaw Goddard Incoming Managing Partner Andrew Goddard has set ambitions for Addleshaw Goddard to double in si e by 2030.

Addleshaw Goddard has announced that Andrew Johnston has been elected Managing Partner in an uncontested election for a term of four years, with effect from 1 May 2024.

Andrew joined Addleshaw Goddard in 2013, to lead the firm s M A practice in the Middle East. He has been a Board Member since 2014, and was appointed Head of Middle East and Asia in 2019. Earlier in his career, Andrew worked with Clifford Chance in London before being seconded to the Middle East.

The uncontested nature of the election allows for a smooth succession alongside the timely appointment of a new Head of Middle East and Asia before Andrew returns to the UK to take up his new role. Andrew’s appointment is the first time in the history of Addleshaw Goddard that a Partner based outside of the UK has been elected Managing Partner.

Andrew succeeds John Joyce who became Managing Partner in 2014, and was reelected in 2017 and 2021. His decision to step-down after a decade in office earlier this year brought forward by one year the process to find his successor.

Commenting on his appointment, Andrew Johnston said: My ambition is for AG to double in si e by 2030. I am looking forward to the firm capitalising on the strong platform created under John’s leadership and using it as a springboard for greater success.

We will continue to invest where clients need us the most and I will be giving as much focus as I can to ensuring that we ourish as a thriving global business, dominant across the , with greater in uence in the City, and even more famous for high-quality imaginative, impactful advice that delivers real competitive advantage.”

Aster Crawshaw, Addleshaw Goddard Senior Partner, said: Thank you again to John who has been instrumental in Addleshaw Goddard becoming one of the most successful -headquartered international law firms and many congratulations to Andrew. Andrew has a strong track record of success and all the qualities to be an excellent leader. I am hugely excited about the next phase of Addleshaw Goddard s development with Andrew as Managing Partner. The energy he will bring to the role will drive forward the firm s strategy, performance, culture and client relationships.” Andrew has led AG’s business in the Middle East to record financial performances. It was the firm s fastest growing region in the financial year ending April 2023, delivering 43% income growth. arlier this year, the firm announced plans for a new office in Riyadh, AG s fourth in the region, and is targeting revenue growth in the Middle ast of 60% over the next five years. Under Andrew’s leadership headcount in the Middle East has doubled since 2019.

As well as steering the firm through successful mergers in Scotland with HBJ in 201 and Ireland s ugene F Collins in

2022, John Joyce has been the architect of the firm s growing international footprint over recent years, with four offices opening in Germany, and one in France and Luxembourg. Today, nonrevenue represents half of what was the firm s entire turnover in 2013.

Alongside partner numbers rising from 1 8 to 386, the financial health of the business has also grown significantly over the last nine years as the firm has attracted a greater share of higher value work from an increasingly global client portfolio. Income has grown from 166m in Fy2013 14 to 443m and profits for the same period have risen by more than 200%. The firm s balance sheet is also immeasurably stronger with a record-breaking closing cash position at the end of Fy2022 23 of 146m, compared with a deficit in Fy2014-15 of 16m. the Parchment 53

MEMBERSHIP

DSBA – Our Benefits T he Dublin Solicitors Bar Association DSBA” is the largest bar association in Ireland, having been established in 1935.

It is a representational and not a regulatory organisation, existing to promote the welfare and interests of its members who are solicitors. The DSBA aims to promote a vibrant and up-to-date

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profession and collegiality amongst solicitors.

The DSBA offers the following benefits to members:

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

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

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

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IN CHANGES PERSONAL INJURY ION LITIGAT ion Injuries Resolut New Personal uced Board Act introd

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OF THE FUTURE AID CIVIL LEGAL

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INTOXIC TESTINGANT IN THE WORKPLACE

EAVE N THE WAO Y

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Additional entitlemen statutor y ts for empl oyees

Managing the pro drugs and alcoh blem of ol at work

NEW WORK/LI FE BALANCE LAW ENDURING PO WERS ATTORNEY UP OF DATE

JUSTICE M IN HELEN MCEISTER NT INTERVIEW EE ED

CRIMINAL LEGAL AI FEES ISSU D E

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Winter 2023 dsba.ie

Membership

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

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

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

DSBA Submissions – ur committees and council work hard to represent solicitors and their interests; there is a current DSBA taskforce on the Legal Services Regulation Act. The Consult a Colleague Helpline is available to confidentially assist every member of the profession nationwide with any problem whether personal or professional free of charge. The volunteers on the panel who provide the service are all solicitors of considerable experience, www.consultacolleague.ie.

DSBA Younger Members’ Committee represents the interests,

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

DSBA Management Tools such as C RT Computerised Requisitions on Title.

bjections and

DSBA Website – www.dsba.ie. See our

regularly updated website for information on all of the above.

For renewal and new membership please complete the form right in full and return it together with a cheque bank draft postal order for the appropriate fee to Maura Smith, DSBA, nit 206, The Capel Building, Mary s Abbey, Dublin D 200206 Capel Building or call 01 6 06089 to pay by credit debit card.

GROUP MEMBERSHIP FEE ne member 2nd to 5th members 6th to 10th members 11th to 20th members 21st to 50th members 51st to 100th members 101st to 150p members 151 plus members

€110 €105 each €100 each €95 each €85 each €80 each € 5 each € 0 each

✁ Name: Firm name: Firm address: Phone number: Fax number: DX number: Email address: Year admitted to the roll: Enclosed please find *cheque/bank draft/postal order for € for * new membership/renewal

the Parchment 55

CYBER INSURANCE – PRACTICE MANAGEMENT NOTE Previously the cyber insurance purchase/ renewal process was pretty straightforward, with a simple application that practitioners could complete themselves relatively quickly . nfortunately, that day is gone Obtaining a quote/renewal for cyber insurance cover now requires interaction with your IT consultants even the Practice Management Committee do not claim to be very tech savvy” amongst our attributes .

Premia increased significantly a few years ago; even when cover was reduced [significantly], more recently there has been a softening of pricing, with insurers and policies being much more selective in cover.

Whilst pricing has softened to make such policies slightly more attractive, that apparently good news comes with a warning as identified below . While each practice will consider the economics of cyber-cover for the premium offered, the essence of this guidance note is to remind practitioners that all cyber insurance policies are not the same and practitioners must carefully check and consider what cover is offered and exclusions in the policy document itself do not rely merely on assumptions last year’s cover/policy document, or broker assurances .

When Practitioners are shopping around, get specific details of the policy in 56 the Parchment

particular be aware that not all cybercrime policies will pay out for an incident of cybercrime without any requirement for a claim to have been made against the Professional Indemnity Policy PII Policy” albeit there is such cover effectively as shield to the PII Policy on the market [particularly from one broker].

A lower cyber-cover quote may be related to lesser risk to the Insurers, as the PII policy will be the first policy to pay out hence a Claims History” on future PII renewals many policies will include a clause which reads along the lines of “Other Insurance. We will not make any payment under this Policy unless and until any other insurance, including any self-insured retention or deductible portion, has been exhausted”. ffectively, such a policy does not shield the PII policy, but operates only as cyber-crime excess layer in respect of clients funds to commonly offered PII policies.

When considering cyber cover, practitioners should also bear in mind that PII policies generally only provide cover for claims relating to losses to client funds [rather than office account funds or social engineering, funds transfer fraud etc, which are not typically covered under a PII policy even though the proposal form may ask questions about such matters ].

Tailored apps/web portals, funds transfer policies and cyber-crime training for every employee and partners including record keeping of the date/completion of the training are now the norm to avoid a policy becoming voidable.

The DSBA are aware that further information can be obtained from Practitioners’ own brokers or, without suggesting any preference: a. Carman Devlin, Leary Insurances Ltd, 16 Pembroke Road, Dublin 4. cdevlin olid.ie www.olearyinsurances.ie b. Philip McCabe, First Ireland, 15 Parkgate Street, Dublin 8. pmmcabe firstireland.ie www.firstireland.ie c. Alan Cleary, Arachas Insurance The Courtyard, Carmanhall Rd, Sandyford, Dublin D18. alancleary arachas.ie www.arachas.ie These are three brokers who know the Cyber Crime Policy market and will quote Solicitors some insurers will not cover quote solicitors verall remember - Buyer Beware Eamonn Carney is a solicitor at Carney McCarthy Solicitors, and he is a member of the DS Practice Management Committee.

Winter 2023 dsba.ie

In Practice

DISRUPTION TO SERVICE – CENTRAL OFFICE OF THE HIGH COURT The Courts Service has embarked on an ambitious 10-year modernisation programme, with the aim of enhancing services to court users. ne of the cornerstones of this programme is the enhancement of our ICT services and, in the High Court, the replacement of the Progress case management system.

A new case management system was

implemented in the High Court on the 2nd ctober 2023. This is the first stage of the modernisation of the delivery of customer service to users and will lead in time to an array of new facilities including eFiling of documents. In the days before and after the introduction of the system, there was some curtailment of normal services to facilitate staff training and allow opportunities to

enhance the operation of the system. As a result, the Central ffice had to reduce the number of daily appointments for in-person callers to the Central ffice for a short period of time in ctober.

The Courts Service appreciate your cooperation and patience while the implementation of these important changes takes place.

REMINDER TO PRACTITIONERS – SERVICE VALID ON A NOMINATED SOLICITOR BY DX The service of documents is covered by Order 11 of the Rules of the Superior Courts as set out in S.I. No. 132 of 2009.

In accordance with section 7 of the Courts Act 1964, all notices of motion and other notices, orders of the Court where service is required and witness summonses shall be served in the same manner as a Civil Bill or other originating document.

Any document, as to which no mode of service is prescribed by statute or these Rules, may be served by delivering the same to the party or person on whom it is to be served personally, or by delivering the same at the residence or place of business of such person, or by sending the same by pre-paid post, addressed to such party or person at his last known residence or place of business.

Where a party or person acts by a solicitor, any document required to be delivered to or served upon such party may be delivered to or served upon that Solicitor, except in cases whereby these Rules personal service upon the party or person is required. Service of any such document upon that Solicitor, or delivery of the same at his o ce or to his Document Exchange, or sending the

same to him/her by pre-paid post to such o ce shall be deemed to be good service upon the party or person for whom such Solicitor acts as upon the day when the same is so delivered or served, or upon which in the ordinary course of post it would be delivered.

The delivery or service of any notice for the purposes of section 8 or section 17 of the Civil Liability and Courts Act 2004 shall be in the manner prescribed in section 4 of that Act. arra

Cochlain, DS

Litigation Committee

Save The Date DSBA Annual Lunch and Law Book Awards WHEN: 8th March 2024 WHERE: The St. Stephens Green Club Full details of the event will be available soon at www.dsba.ie. nquiries: maura dsba.ie

the Parchment 57

IS THIS YOUR COPY OF THE PARCHMENT? ARE YOU ON OUR MAILING LIST?

If not, please contact Maura Smith.

Dublin Solicitors Bar Association, Unit 206, Capel Mary’s Dublin Abbey, 2, Dublin 7, Ireland.

Dublin Solicitors Bar Association, 1stThe Floor, 54 Building, Dawson Street, Ireland.

Tel: 01 670 6089 • E-Mail: info@dsba.ie • Update your personal details online at:

www.dsba.ie

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Winter 2023 dsba.ie Photography: Mark Harrison

Left to right: DSBA Council line up: Front (L to R): Paul Ryan, Susan Ryan, DBSA President Matthew Kenny, Niall Cawley, Joan Doran, Ciara O’Kennedy. Back (L to R); Marcus Hanahoe, Ciara Hallinan, Patrick Longworth, Zoe Hughes, Eimear Doherty, Aine Gleeson, Avril Mangan, Jessica Hickey, Cliona Costelloe, Stefan O’Connor

DSBA AGM

The AGM of the Dublin Solicitors Bar Association took place at the Westbury Hotel on the 24th October 2023.

The AGM was extremely well-attended as it signalled the end of Susan Martin’s year as President. Matthew Kenny took over the reins at the helm of the DSBA for the year ahead.

Left: Sean Greene, Matthew Kenny and Killian O’Reilly Far left: New DSBA President Matthew Kenny presenting the outgoing Susan Martin with her DSBA President’s Medal

Right: Cliona Costello, Susan O’Hanrahan, Avril Mangan and Eimear O’Doherty Far right: Tony O’Sullivan, Lisa Tyndall and Niall Cawley

Left: Diego Gallagher, Tony O’Sullivan, Marcus Hanahoe and Stefan O’Connor Far left: Outgoing DSBA President Susan Martin presents a cheque to Helen Sheehy for the DSBA Bursary Fund

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DSBA CPD Seminar

The DSBA hosted a seminar on the 8th November 2023 which dealt with a number of topics including: • Contract for Sale 2023.

• Caselaw update on breach of contract.

• Solicitors Accounts Regulations 2023.

The speakers were Keith McConnell, Paul Hutchinson BL and Niall Cawley.

Left: Martin Colman and Graham Dixon Far left: Keith McConnell, Aine Gleeson and Paul Hutchinson BL

Right: SallyAnn McCoy and Alice Boland Far right: Susan O’Halloran and Sarah Sbano

Left: Roisin Bennett, Brendan Sharkey and Joanne Baily Far left: Una Burns and Sinead Byrne

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Winter 2023 dsba.ie Photography: Mark Harrison

Right: Niall Shanley, Louise McGovern, Clodagh Hagan and Alice Boland Far right: Alex Wilson and Maria Bray

Left: Paddy Smyth, Joanna Bannon and Neil Dineen Far left: Aine Gleeson and Niall Cawley

Right: Paul Hutchinson BL Far right: Albert Fagan and Deirdre Walsh

Left: Padraig Mullins and Robert Ryan Far left: William Dunne BL and Paul Hutchinson BL

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Closing Argument Keith Walsh

Dublin Family Law Courts, Hammond Lane – Nine years on

D

éjà vu all over again in the Hammond Lane saga.

Groundhog Day normally falls on 2nd February and is primarily celebrated in the USA, but it arrived in Dublin on 27th November this year when the ffice of Public Works gave notice of their intention to start the development of the Dublin Family Courts located between Hammond Lane, Church St. and Bow St. Dublin 7 in a site notice posted on that day. The drawings and particulars of the development can be inspected at Phoenix House,or the ffice of Public Works and any submissions must be made within 6 weeks, excluding the period 22nd December - 4th January 2024. Colleagues are encouraged to view the plans and to make submissions.

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The planned building complex comprises 19 court rooms, mediation and support facilities, office accommodation, Judges and staff accommodation, custody accommodation, a double ESB substation and all other ancillary accommodation. The total area of the Dublin Family Courts is circa 18,252m sq. 4,1 6m sq. basement 14,0 6m sq. above ground .

The then Minister for Justice Frances Fitzgerald announced the Dublin family courts project on 12th December 2014 with then Chief Justice Susan Denham. It is now seven years since the Childcare Courts were moved to the Bridewell which at that time was intended to be a temporary measure for two years.

This is the first time the project has progressed to the planning stage and a

Family lawyers find themselves in a situation worthy of Flann O’Brien where we need new family law courts to be provided while we wait for the new Family Law Courts

spokesperson for the Courts Service said that it is likely to be some time in 2024 before the final planning decision is made and it is likely that construction will start in the latter half of 2026. The Courts Service estimate that the new Family Courts Justice Complex will only open towards the end of 2028. Given the State’s history with construction projects, it is difficult to predict that we will be in the new courts before the end of the decade.

While the start of the planning process is good news for those involved in the family law justice system in Dublin, the prospect of another five years in inadequate and unfit accommodation is bad news for families, court service staff, witnesses, judges and lawyers.

In May 2019 the Irish xaminer reported the then Chief Justice Frank Clarke s views on

Winter 2023 dsba.ie Keith Walsh solicitor and SC practises in the area of family law in Dublin where he is a partner in Keith Walsh Solicitors LLP

Pictured on a very cold winter morning four years ago,on the 10th December 2019 were a hardy group outside the site at Hammond Lane: (L to R) Gillian Dennehy, Womens Aid Ireland, Noeline Blackwell, CEO Dublin Rape Crisis Centre, Keith Walsh, Family Law Committee, Law Society, Eilis Barry, CEO FLAC, Mícheál O’Higgins, Bar Council (now Mr. Justice Mícheál O’Higgins), Nuala Jackson SC, Chairperson Family Lawyers Association (now Ms. Justice Nuala Jackson), Orla O’Connor National Womens Council of Ireland, Rose Wall, Community Law & Mediation Tanya Ward, CEO, Children’s Rights Alliance, Karen Kiernan, CEO, One Family, Freda McKittrick, Head of Guardian Ad Litem Services, Barnardos

the condition of the family courts in Dublin.

Mr. Justice Clarke told the government that the family law courts in Dublin required “the most urgent attention” and operated in “dreadful conditions”. He said of Dolphin House that the office block carved out of the remains of the old Dolphin Hotel provides wholly unsuitable facilities for what are inevitably difficult and delicate cases”. He said many other premises in Dublin being used for family law were “not much better”.

In a typically memorable phrase, he also said: Hammond Lane is, as they say, shovel-ready, subject to planning, and planning is ready to go once funding is in place.”

That was 41/2 years ago and since then there have been no sightings of any shovels around Hammond Lane and it may be some time until one is lifted. Indeed, you

would have to say the pace of progressing this Dublin Family Court complex has been glacial at best and a more cynical observer might wonder if the courts will be completed by the early 2030s.

The conditions in the Bridewell for childcare cases, Dolphin House District Court and Phoenix House Circuit Court are unacceptable. The huge increase in the volume of family law cases in the District Court in particular and in the area of domestic violence and childcare cases in particular means the new Family Law Complex for Dublin is much needed and cannot come soon enough. Just when we thought it could not get any worse, at the end of last year the new Family Courts Bill was published which contains a fatal aw, which if left unchanged will make a

bad situation even worse. This aw is the proposal to divert almost all new divorce and judicial separation cases from the Circuit Court down to the District Court.

While most of the other proposed changes are welcome, this transfer of 6000 cases to an already overcrowded, under-resourced and unsuitable District Court will result in much greater problems in the family courts in Dublin and all around the country if implemented.” P

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DSBA AGM

The AGM of the Dublin Solicitors Bar Association took place at the Westbury Hotel on the 24th October 2023.

Matthew Kenny was elected as the new DSBA President for 20232024. New DSBA Council member elected are Marcus Hanahoe, Cliona Costello and Zoe Hughes.

Photography: Mark Harrison

Left to right: DSBA Top Table... Susan Martin, Matthew Kenny, Niall Cawley, Paul Ryan and Joan Doran

Left: Killian O’Reilly, Stefan O’Connor and Aine Gleeson Far left: DSBA President Susan Martin presents a cheque to Tom Menton for the Solicitors Benevolent Fund

Right: Jessica Hickey and Diego Gallagher Far right: Keith Walsh and Susan Martin

Far left: Richard Hammond and Roisin Bennett

64 the Parchment

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