EASTER
2015
Cohabitation-
Reflecting the New Ireland ECONOMIC OUTLOOK
Constantin Gurdgiev
Garvan Grant Time For Ireland To Get Exporting Again
In The Spot Light Head Coach Billy Walsh
Garvan Corkery Companies Act 2014
Meet The Team
Table of contents Cohabitation- Reflecting the New Ireland .......................................... P3 Hr Suite- Hr Update ....................................................................................... P5 Economic Outlook- Constantin Gurdgiev.............................................. P7 Legal Briefs ......................................................................................................... P10 Garvan Grant- Time for Ireland to get exporting again ................... P12 In The Spotlight- Head Coach Billy Walsh ............................................. P15 Garvan Corkery- Companies Act 2014 ................................................... P16 Meet The Team ................................................................................................. P19 Range of Servicess .......................................................................................... P20
WELCOME Welcome to the Kevin O'Donovan & Partners inaugural quarterly Newsletter. We do hope that you will find the articles in this and in subsequent Newsletters to be informative and helpful. We realise the importance of staying in contact and providing information on topics and subject matters we consider relevant to you and your business The essence of our Firm is to deliver a first class and personal service across all business sectors, in an efficient and cost effective manner. Understanding our Client’s legal requirements, the issues which concern them and the provision of information is therefore vital. From all the team at Kevin O'Donovan & Partners, we wish you a happy easter. Kevin O'Donovan and Paul O'Sullivan
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Paul O' Sullivan, Partner There was a time when the normal family relationship in Ireland was that of a husband and wife living together as a married couple. However, while huge numbers of couples continue to get married in this country every year, there are other types of relationships that people now operate under which have also become quite common and popular. These include both same sex couples and opposite sex relationships where the man and woman live together as a couple but who are not legally married.
WHAT RIGHTS DOES THE 2010 ACT CONFER ON COHABITANTS?
These alternative types of relationships had little or no legal protection until the 2010 Civil Partnership & Certain Rights & Obligations of Cohabitants Act. While there was much fanfare and public comment on the introduction of Civil Partnership for same sex couples thereby allowing such couples to register their relationship and have it legally recognised in the same way as that of a married couple, in some respects, the other part of the 2010 Act which dealt with cohabitants is of more importance given the huge numbers of men and women living in relationships as cohabitants. It is in respect of cohabitants that we will concentrate on in this article. We will attempt to deal with some of the changes brought in under this Act by answering some of the common questions that people raise when this issue comes up for discussion.
DO ALL COHABITANTS QUALIFY FOR THIS REDRESS SCHEME?
WHAT IS A COHABITANT?
The 2010 Act provides a Redress Scheme for a financially dependent member of a couple if the long term cohabitants relationship ends either through death or separation after the 1st of January, 2011.
No. A cohabitant claiming on foot of the 2010 Act must be what is called a “qualified cohabitant�. A cohabiting couple must have lived together for a period of five years but this is reduced to two years if the parties have a child or children together. It is important to realise that the 2010 Act does not confer automatic rights on a cohabitant seeking redress under the Act. Rather the court will decide this based on the individual facts of each situation.
HOW DO YOU CLAIM UNDER THE ACT? A qualified cohabitant may apply to court for redress but must satisfy the court that he or she is financially dependent on the other cohabitant and a claim must be made within a two year period of the end of the cohabitant relationship or within six months of a Grant of Representation in the case of a deceased cohabitant. Where one party is married, in order to be considered a cohabitant under the Act, that person must have lived apart from their spouse for at least a four year period.
WHAT FACTORS WILL A COURT CONSIDER WHEN DECIDING TO MAKE AN ORDER?
A cohabitant is one of two adults who live together as a couple in an intimate and committed relationship. This could include both a young couple living together before getting married but also a couple where one party is divorced or separated and might be unwilling or unable to marry again.
A court will consider the financial situation of the cohabitants, the length of their relationship, whether any party became financially dependent on the other as a result of the relationship, whether there is a dependent child or children and the degree to which the parties present themselves to others as a couple. A court must essentially decide where a financial dependency has been established as to whether it is just and equitable to make an Order in the circumstances.
WHAT WAS THE LEGAL POSITION OF COHABITANTS PRIOR TO THE 2010 ACT? Essentially, cohabitants had no protection under Irish law and had no right to claim any property owned by their partner on the death or end of the relationship with that partner.
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WHAT ORDERS CAN A COURT MAKE? A court can make a number of different Orders including a Property Adjustment Order in favour of the qualified cohabitant, a Maintenance Order both on a regular basis or a lump sum payment and a Pension Adjustment Order. In the case of a deceased cohabitant, a court can make an Order in favour of the qualified cohabitant out of the estate of the deceased cohabitant but it is important to note that in deciding to make such an Order, a court may be restricted by the legal rights of any surviving spouse or children of the deceased.
WHAT ARE THE TAX IMPLICATIONS OF AN ORDER MADE TO A QUALIFIED COHABITANT? There is an important relief available to cohabitants in respect of Capital Acquisitions Tax made under the 2010 Act. A gift or inheritance taken by a qualified cohabitant on foot of an Order made under the 2010 Act is exempt from tax and is not taken into account in computing a person’s tax liability. Therefore for example, if a qualified cohabitant obtained a transfer of a property on foot of a Property Adjustment Order made under the 2010 Act, this gift would be exempt from Capital Acquisitions Tax. This could be a considerable tax saving given that the cohabitant benefiting from this transfer would otherwise have a very low exemption threshold from the payment of Gift Tax. Equally where one cohabitant dies and the other qualified cohabitant makes a claim against the deceased cohabitant’s estate, any such transfer or benefit made to the qualified cohabitant on foot of a court Order made under the 2010 Act will be exempt from Inheritance Tax.
CAN COHABITANTS CONTRACT OUT OR OPT OUT OF PROVISIONS UNDER THIS ACT? Yes. The Act recognises that cohabitants may make a legally binding Cohabitation Agreement to regulate their affairs and which may include a proviso that the Redress Scheme provided under the 2010 Act will not apply to their relationship. However, these Agreements are valid only if both parties have taken independent legal advice and such an Agreement is in writing and has been signed by both parties. In fact, the 2010 Act also recog-
nises Voluntary Cohabitation Agreements validly constituted before the 1st of January, 2011. This is an important difference from married couples who are prohibited from contracting out of one party to a marriage being able to apply to court for various Orders. A court however does retain the right to set aside such a Voluntary Cohabitation Agreement in exceptional circumstances if its enforcement would cause serious injustice. The 2010 Act has recognised the need to regularise in some fashion the legal position of cohabiting couples. It is limited in many ways and it is probably too early to verify as to whether it has succeeded in its aims to adequately protect financially dependent cohabitants in a relationship which ends. As ever, a lot depends on the strictness of definition that judges shall attribute to whether a cohabitant claiming for redress under the Act is financially dependent or not. However, what can clearly be said is that from the introduction of the 2010 Act, the State has at least begun the process of recognising the existence and validity of cohabitant relationships under Irish law.
The changing Irish family We have fewer children than we did two decades ago, and more separation and divorce. Irish family has changed in recent years, and continues to do so. Family sizes have declined significantly in a quarter century. In 1991 the average family had two children. In 1996 this had fallen to 1.8 children; in the 2011 census the average number per family was 1.4. The average in rural areas is higher, at 1.5 children. Cos Donegal, Cavan and Monaghan have the largest families, with 2.2 children per family. Separation and divorce have grown significantly since the legalisation of divorce, in 1996. The number of separated couples rose from 78,000 in 1996 to 116,000 in 2011. In the same period the number of divorcees rose almost tenfold, to 88,000. The remarried population increased by 550 per cent in the same period. Men are more likely than women to remarry. The peak age for separation and divorce is 48. Almost 8 per cent of non-Irish-national adults are separated or divorced, versus 5.3 per cent of Irish nationals. That census also recorded 4,042 same-sex cohabiting couples, 83 per cent of them in urban areas. Civil partnership was legalised in April 2011. In the first four years of the law almost 3,000 people entered civil partnerships. On May 22nd, 2015, in the referendum on marriage equality, Ireland will vote for or against a constitutional amendment that would allow same-sex marriage.
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HR Highlights Caroline McEnery and Úna Glazier-Farmer BL
Joint Labour Committees In July 2011, the Supreme Court deemed Joint Labour Committees (JLC) unconstitutional. In October 2013, the Labour Court Report on the JLC was published. Since the publication of the Report, the Minister for Jobs, Enterprise and Innovation, Richard Bruton has reiterated his commitment to retain, remain and reform JLCs. The first steps taken by the Minister in relation to JLCs came on the 28th January 2014 when he signed JLC Orders for the contract cleaning, hairdressing, hotels and security services sectors.
failure to comply with a legal obligation to the endangerment of an individual’s health and safety. Therefore, the 2014 Act is very relevant to the retail sector particularly in relation to food safety. The legislation provides for up to 5 years’ remuneration in a case of unfair dismissal for making a protected disclosure.
Practical Tips for Employers
In October 2014, the draft Employment Registration Order (ERO) for the security services sector was published. The ERO sought to increase the minimum rate of remuneration to €10.75 per hour which is an increase of .74c per hour from the 2009 rates. The draft ERO places unfair and unrealistic demands on employers in the security services sector who have already had to invest heavily to ensure compliance with the Private Security Services Act 2004. If this ERO is a sign of the Department’s intentions towards the reinstatement of the JLC it poses an unwelcome challenge for employers in what are already highly competitive markets.
Employers should have a clear whistleblowing policy, setting out the steps a worker should take if any wrongdoing comes to their attention. The policy should be communicated to all workers covered by the Act to ensure full compliance. A nominated senior member of staff should be identified in the policy to whom workers can speak to in confidence to report a wrongdoing.
Industrial Relations (Amendment) Bill 2014
Protected Disclosure Act 2014 In July 2014, the Protected Disclosure Act 2014 commenced which saw the introduction of the most comprehensive whistleblowing legislation in Europe. The 2014 Act seeks to protect a worker who makes a disclosure of wrongdoings to their employer free from recrimination. The 2014 Act provides an all-encompassing definition of worker which extends beyond an employee to include independent contractors, agency workers, trainees and even volunteers. A wrongdoing ranges from a criminal offence, to
In May 2014, Minister Bruton announced reform of the industrial relations in Ireland. While it is unexpected when the Bill will be published, the Department of Jobs Enterprise and Innovation has identified the main provisions: a definition of what constitutes “collective bargaining” provisions to help the Labour Court identify if internal bargaining bodies are genuinely independent of their employer bringing clarity to the requirements to be met by a Trade Union advancing a claim under the Act setting out policies and principles for the Labour Court to follow when assessing those workers’ terms and conditions, including the sustainability of the employers business in the long-term
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new provisions to ensure cases dealt with are ones where the numbers of workers are not insignificant provisions to ensure remuneration, terms and conditions are looked at in their totality provisions to limit the frequency of reassessment of the same issues an explicit prohibition on the use by employers of inducements (financial or otherwise) designed specifically to have staff forego collective representation by a trade union enhanced protection for workers who may feel that they are being victimised for exercising their rights in this regard by way of interim relief in the case of dismissal
Employment Law Review Over the previous 12 months there has been some interesting decisions from the Employment Appeals Tribunal (EAT): The Tribunal (EAT) decision of Brendan O’Callaghan v Dunnes Stores provides smaller companies with some level of comfort where it held that it may be acceptable to have the investigation and the disciplinary hearing conducted by the same person. In this case, the regional store manager conducted both the investigation and disciplinary meetings which the claimant argued was a breach of fair procedures. While the EAT accepted that best practice is to have different people conduct each part of the process this was not always required particularly where there had been a full admission by the employee at the first instance and the fact of the case were not complex.
The Circuit Court overturned a decision of the EAT in the case of Tomasz Burczy v Tesco Ireland Limited for unfair dismissal. The claimant was a warehouse operative who was found using his mobile phone while operating a vehicle in the warehouse. The employee was dismissed for gross misconduct for breach of the health and safety policy which he had been fully trained in the weeks prior to the incident. The EAT were of the view that the sanction was disproportionate to the offence and awarded the claimant €20,000. On appeal, Judge Linanne agreed that it was necessary to have a strict safety regime in place particularly due to the safety concerns associated with operating machinery while using a mobile phone.
About the Authors Caroline McEnery bio Caroline McEnery, Managing Director, has a Masters in Human Resource Management from the University of Limerick. She has completed Train the Trainer training, is a Manual Handling Instructor and is a trained Personality and Aptitude assessment provider. Caroline is CIPD accredited and has over 15 years’ HR experience gained from her time working with the Garvey Group and Kerry Group. Caroline has been offering clients HR advice and business support since she set up The HR Suite in 2009.
Úna Glazier-Farmer BL bio Úna Glazier-Farmer BL is Head of the Employment Law Department at The HR Suite. She is a qualified Barrister-at-Law as well as holding a B.A. and LL.B from the National University of Ireland, Galway, an LL.M. in Competition Law from Kings College London and a Diploma in Finance Law from the Law Society of Ireland. Prior to joining The HR Suite, Úna was a practicing barrister in the Law Library, Dublin and worked for major international law firms in London and Brussels.
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Economic Outlook
With spring sunshine, the glowing warmth of the overheating bonds markets is bringing about the scent of optimism to the macro-analysts' desks. On March 19th, the NTMA issued EUR500 million worth of 6 months notes with a yield of -0.01%. With a few strokes of the 'buy' keys, the markets welcomed Ireland to the ever-expanding club of nations that enjoy the privilege of being paid to borrow from private investors.
European Policy Uncertainty Index (including period averages confidence intervals) Source: data from PolicyUncertainty.com
In a way, this is the story of Ireland's recovery distilled to a singular event: with the Government borrowing costs at their historical lows, the memory of the recent crises is fading fast from the pages of our newspapers. Alas, the drivers of this recovery are illusory. All are temporary, none are structural or sustainable, in the long run. In fact, the current markets reprieve is concealing the real dangers for domestic investors – dangers of new asset bubbles and potential future losses. Take a look at the euro area sovereigns at large.
Although the Government is usually quick to claim credit for the massive improvements in Irish yields, in reality, Dublin has little to do with these. At every point from Q3 2011 through today, large scale declines in the Government cost of borrowing came courtesy of the ECB. The latest gains are no exception: the ECB has just launched a sizeable bonds-buying programme and with it, the quantum of negative yield debt in the global markets has gone from roughly USD3.6 trillion in January to USD4.2 trillion by mid-March. As of now, 19 percent of the Global Bond Index-listed debt is trading in negative rates territory. After years of austerity, 2015 is shaping up to be a year of broadly-speaking neutral public spending. In other words, as the euro area Governments' debt remains sky high, public deficits are unlikely to shrink by any appreciable amount. Why bother with reforms, when you can be paid by the markets to borrow? Aptly, as the chart below shows, European economic policy uncertainty remains at crisis period averages, well above the safety range of pre-crisis years.
This, by far, represents the largest long term challenge for investors and the greatest risk to the global economies. Expansionary monetary policy pursued by the central banks around the world, including the ECB aims to push up economic growth and reduce the risks of deflation. It also attempts to repair the monetary policy transmission mechanism: that cheap ECB-supplied liquidity is being lent by the banks to companies and households in the forms of new credit.
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TABGIBLE RISKS However, from the investors’ perspective, this monetary activism can end up backfiring. For a number of reasons. Firstly, as shown in Chart 2 below, monetary policy-driven credit expansion is propelling stock markets and debt markets valuations to all-time highs across the advanced economies with absolutely no tangible connection to real fundamentals, such as growth in economic activity, household incomes, employment, and even capital investment. By the very definition of the financial bubbles, current monetary policies activism is inflating returns expectations unanchored in reality.
Fourthly, negative rates and yields are increasing the probability of monetary policy misfires - a scenario where one or several Central Banks around the world can tighten policy too fast and/or too early, completely derailing economic recovery. This problem is global and contagious. Investment grade government bonds are effectively substitutes for each other in majority of investment portfolios. As the result, negative yields in the euro area today are keeping yields low in other advanced economies. This is already causing discomfort in the U.S. where dollar rise relative to other currencies is being driven by a combination of two factors: the expected mismatch between U.S. and euro area policy rates, and investors' fear of Fed policy errors over the next 3-6 months.
Secondly, monetary expansion means that households and firms struggling with debt are given a short-run reprieve from facing the true costs of their borrowings. But the day of reckoning awaits in the future. This means that households and corporates are likely to continue engaging in precautionary savings even as the Central Banks drop rates and bonds markets bid the cost of issuing debt down. Meanwhile, households and companies with low debt exposures are likely to save more to offset declines in their returns on deposits. Taken together, these factors are likely to further suppress domestic demand, while setting us up for a major crisis once the cost of debt starts rising in the future. Thirdly, negative yields are, like all bubble-generating factors, self-reinforcing in their nature. With central banks increasingly charging commercial banks for deposits, banks prefer buying bonds even in the presence of the negative yields. This means that negative policy rates are reinforcing the dysfunctional monetary mechanism, locking in more liquidity into government bonds and driving yields on government paper further down. The resulting increases in bonds prices incentivise commercial banks to gamble on future capital gains by buying even more bonds. This spiral of demand for government debt depresses banks future profitability as investors bid bonds prices up and loads more risk of significant future losses that will materialise once QE policies begin to unwind.
Fifthly, the demand for negative yield bonds appears to be setting the unsuspecting investors for a fall. In a recent research note, the investment bank Jefferies discovered that much of the demand for such paper comes from indexed funds. Investors in these extremely popular funds simply have no idea that the strategy the funds pursue is not designed for the world where top-rated bonds are paying negative yields. And as funds start posting losses, the same investors are likely to rush for safety into other asset classes – namely equity. Yet, with equities already at historical highs, the safety-minded investors will be left with buying even more assets at bubble valuations. Sixthly, negative yields on Government bonds are a disaster waiting to happen for insurance, asset management and pension sector as they create huge risks at the heart of these companies long-term investment portfolios. As insurance companies and pension funds chase the yield, premia will have to rise, risks embedded in pensions portfolios will jump and returns on longer term contracts will fall. As the result, some financial analysts are warning of not only economic, but also political consequences of the monetary policy activism.
Another pesky side effect of this is the banking sector stability. Negative interest rates on Central Bank deposits lead to lower deposit rates for banks' customers. Banking sector loans-to-deposits ratios rise, making banks more dependent on the shadow banking system for funding and more levered. Interestingly, in the U.S. at least one large bank, J.P. Morgan has already announced that it will be charging customers for large deposits up to 5.5 percent annual fee.
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The bankers' regulatory body, the Bank for International Settlements is not amused. In a recent statement, Claudio Borio, the head of the BIS monetary and economic department said it is simply impossible to tell how investors, consumers, voters and the governments are going to react to the negative yields and interest rates. "…technical, economic, legal and even political boundaries may well be tested. The consequences should be watched closely, as the repercussions are bound to be significant, on the financial system and beyond," Mr Borio said.
IRISH INVESTOR PERSPECTIVE From an Irish investor’s point of view, the risks arising from the euro area negative rates and yields environment are significant.
In a study published in 2005 (http://www.bis.org/publ/work 186.pdf ), BIS researchers found asset price busts, especially those associated with large property markets adjustments, to have much more painful economic impacts than deflation. The study covered all advanced economies over the period from 1873 through 2004 and included analysis of deflation effects on Government debt and growth. The same results were confirmed by another BIS study published earlier this year (http://www. b l o o m b e rg. co m / n e ws / a r t i c l e s / 2 0 1 5 - 0 3 - 1 8 / t h e - ce n tral-bank-of-central-banks-says-keep-calm-about-deflation).
Global Markets, Irish Problems Source: Author’s own calculations based on data from CSO, Central Bank of Ireland and Bloomberg around mid-2005 levels, and growth predominantly driven by the multinational corporations' tax optimisation strategies. In this environment, negative rates are masking the extent of the problems still present in the economy, while euro devaluation, coupled with exports growth concentration in the MNCs-led sectors, are creating a false impression of improved productivity and competitiveness.
As of today (see Chart 2), Ireland is still experiencing property prices that are 38 percent below the pre-crisis peak (in Dublin 39 percent), private debt that is, once controlled for sales of mortgages, and NAMA and bank loans to non-banking investors, stuck
For domestic investors, this means that both equity, corporate and government debt markets in Ireland and across the euro area are simply out of touch with macroeconomic reality on the ground. The global Central Banks-led policies are pushing our traditional investment and pension portfolios into the high risks, low returns corner, commonly associated with financial assets bubbles. While some speculative exposure to the US and Emerging Markets assets is always welcome, the bulk of investment allocation today should be focused on a conservative view of key risks presented by the negative rates and yields environment. Tax planning, portfolio cost minimisation, low gearing and high liquidity of investment allocations should take priority over pursuit of short term yields and capital gains.
Dr. Constantin Gurdgiev is the Adjunct Assistant Professor of Finance with Trinity College, Dublin, and serves as a co-Founder and a Director of the Irish Mortgage Holders Organization, Ltd and the Chairman of Ireland Russia Business Association. He holds non-executive appointment on the Investment Committee of Heinz Global Asset Management, LLC (US). In the past, Dr. Gurdgiev served as the Head of Research with St Columbanus AG (Switzerland), the Head of Macroeconomics with the Institute for Business Value, IBM, Director of Research with NCB Stockbrokers, Ltd, and Group Editor and Director of Business & Finance Publications. He also held a non-executive appointment on the Investment Committee of GoldCore, Ltd (Ireland) and Sierra Nevada College (US). Born in Moscow, Russia, Dr. Gurdgiev was educated in the University of California, Los Angeles, University of Chicago, Johns Hopkins University and Trinity College, Dublin.
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LEGAL BRIEFS
Move to electronic transactions part of radical overhaul of conveyancing Last December, the Law Society, which represents solicitors, announced it was launching a project that will move the entire system of property conveyancing in Ireland to an automated and electronic platform ,with an implementation target date of December 2017. The recovery in the Irish property market has boosted the fortunes of the legal sector with property, construction and conveyancing – as well as pent-up demand for residential and commercial property – the key areas driving growth. The average transaction time is 22 weeks but the society said the e-conveyancing model towards which it had been working could reduce that to five working days, where the buyer had the funds available. As far back as 2008, the Law Society proposed a radical overhaul of existing conveyancing methods to simplify and speed up the legal verification of property transactions. The implementation phase of the e-conveyancing project has begun, with the project team now in place and working with all stakeholders to introduce e-conveyancing, a spokeswoman for the society said. When e-conveyancing is implemented, solicitors on both sides of a property transaction will exchange information and documents in a paperless way via a secure central hub. The hub will provide a secure central work area to allow solicitors and lenders to view information, exchange data and communicate information in real time in order to complete property transactions in a fraction of the time it currently takes. Home-buyers will see transaction times reduced to as little as five working days, reducing costs while increasing transparency and security.
Cybercrime a growing threat in Ireland Cybercrime is one of the biggest emerging problems for Irish households, and people must take appropriate steps to secure their personal information, a senior Garda has said. Speaking at the publication of the Crimestoppers annual report, Assistant Garda Commissioner Derek Byrne said a proportion of the 1,600 calls received by the confidential service last year concerned illegal cyber activity jeopardising the security of devices, data and banking information. Sometimes people are not aware that they’re working on open networks, and that the criminal networks are out there seeking to infect and take control of their computers. Although gardaí are closely following technologies being developed by Europol’s cybercrime centre and IT experts in University College Dublin, the rapidly-evolving nature of such activities means the threat remains prominent. A recent Crimestoppers report outlined that an average of 138 calls are received each month on the dedicated phoneline, leading to information being gathered in the areas of drug dealing, sexual crimes and paedophilia, and the recovery of stolen goods. Information received from the public in 2014 also helped to secure forensic evidence in the investigation of an attempted murder, while €25,000 worth of heroin, cocaine and cannabis was seized in Leinster following an anonymous tip-off.
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Corbally ruling raises big questions on regulation A Supreme Court ruling last month has raised major issues for regulation for health professionals in Ireland, with the legislation in question likely to be subject to review by the Minister for Health and the Government. The ruling in the case of a surgeon and medical professor, Prof Martin Corbally, who was at the centre of a Medical Council investigation, means that a hierarchy of seriousness must apply to mistakes by doctors and other professionals if findings of poor professional performance are to be made against them. The case concerned allegations made against Prof Corbally after he incorrectly described a proposed surgical procedure in a patient’s handwritten outpatient notes. Poor professional performance is defined under the 2007 Act as a failure by the practitioner to meet the standards of competence (whether in knowledge and skill or the application of knowledge and skill or both) that can reasonably be expected of medical practitioners practising medicine of the kind practised by the practitioner. It is clear from this definition that the legislature made no express stipulation that the conduct in question must be serious. The Supreme Court, however, held that in order to render sanctionable, either as professional misconduct or poor professional performance, non-serious failings by a medical practitioner, it would have been necessary for the legislature to use explicit language to do so. The High Court, by way of judicial review proceedings brought by Prof Corbally, had quashed both the finding of the fitness to practise committee of poor professional performance and the decision of the Medical Council, by way of sanction, to admonish Prof Corbally. The Supreme Court upheld that finding, noting that it had been accepted by the Medical Council that if it were necessary to prove behaviour by Prof Corbally that fell seriously short of the standard expected in order to establish poor professional performance, it could not do so. Mr Justice Adrian Hardiman noted that there were many forms of shortcomings by a medical practitioner, as well as persons in other occupations, which, however regrettable, did not amount to a serious falling short of the expected standards of the profession. In reaching its conclusion, the Supreme Court took into consideration the sanctions available to the Medical Council under the 2007 Act. It noted that section 71 of that Act did not make any distinction between what sanctions might be imposed where there was a finding of poor professional performance and those which might be imposed where there is a finding of professional misconduct. Mr Justice Donal O’Donnell commented that in this regard, it did appear that the Act was “not perhaps fully thought through”. Mr Justice Hardiman, with whose decision the Chief Justice, Mrs Justice Susan Denham, Mr Justice O’Donnell and Ms Justice Elizabeth Dunne concurred, also attached significance to this factor, finding that it was a significant aspect of the statutory scheme and meant that there was no sense in which the offence of poor professional performance was intrinsically less serious than professional misconduct: The Supreme Court also had regard to the gravity of the mere ventilation of an allegation of poor professional performance and the potential gravity of the consequences of the upholding of such an allegation. Under the 2007 Act, the default position for hearings
before the fitness to practise committee is that they are heard in public. This, along with consequent publicity, was also found to be of significance. Mr Justice Hardiman felt that, in order to provide a medical practitioner with adequate protection of their constitutional rights to a good name and to earn a livelihood, it was necessary that there was a threshold of seriousness to be met. As to the interpretation of that threshold, Mr Justice Liam McKechnie said that it was neither desirable nor necessary to try to elaborate upon the meaning of seriousness in the context of poor professional performance. He did note that not every error, lapse or mishap would qualify, while conduct which was trivial or minor would fall outside its meaning. He also addressed the impact of the causative effect of an error, concluding that whilst adverse consequence or causative effect was not essential, where present it would be a factor for consideration. The decision of the Supreme Court clarifies that it is not necessary for a regulatory body to wait for persistent or repeated substandard events to occur before it can act; to do so might lead patients to be unnecessarily compromised. The question to be considered is whether the threshold of poor professional performance has been met or not, regardless as to whether the conduct has only been committed on a single occasion. Equally the application of a “fair sample” test, whereby an assessment of such a sample of the doctor’s work was necessary before poor professional performance could be demonstrated, accepted in principle by the High Court, was not endorsed by the Supreme Court. To do so, according to Mr Justice McKechnie, would “seriously jeopardise the mandatory obligation on the council to protect the public from substandard competence or the performance thereof by those subject to its remit”. While the clarity provided by the Supreme Court is to be welcomed, the impact of the judgment means that there is now no material difference between the standards of poor professional performance and professional misconduct. The question must therefore be posed as to what the intention of the legislature was, in introducing such a standard of poor professional performance.
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Time for Ireland to get exporting again Time for Ireland to get exporting again Despite being a small nation, Ireland has generally punched above its weight in terms of what it exports. However, it should be noted that the canny Irish only tend to get involved in exporting stuff when there is a surplus of it here or if we don’t like it very much. We’re smart like that! Exports also grew a lot during the boom years, though the country does have a proud history of exporting all kinds of stuff to the four corners of the world. As the economy begins to recover, Garvan Grant takes a humorous look at the ten biggest exports in the country’s ‘trueish’ history.
Potatoes Has there ever been a more valuable resource for the people of Ireland? Used for centuries as a weapon to fight the English, as a brick for building houses and often just as something to eat, the humble spud has never ever let the Irish down. (OK once, but let’s not dwell on that.) So it was obvious that potatoes would eventually become our number one export in the same way that sand and oil are big exports for Saudi Arabia. Ireland now trades potatoes on the open markets, though we have to be careful that we don’t ever reach ‘peak potato’. Who will ever forget the Crisps Shortage in the late 1970s? Or the more recent Potato Wars which caused such havoc on the international markets?
For example, the latest food trend sweeping the world is apparently cabbage juice. The Irish Association of Cabbage Exporters swears that people like Madonna, the Dalai Lama and Vladimir Putin drink it every morning and that it can cure thousands of diseases. It is made by boiling cabbage for eight weeks, letting it go cold and then drinking whatever remains.
Stout Ireland is perhaps most famous around the world for its stout, which some describe as “a glass full of black food”. This is handy for Irish people, as after a long day working, they can skip dinner and just have a “feed of pints” instead.
Cabbage Cabbage is another vegetable-like material that the Irish have adapted as a foodstuff. They have done this mainly by applying an age-old secret method of cooking called ‘boiling for a very, very long time’. They also use it in a special dish called Cabbage Surprise, though the only real surprise about it is that it only contains cabbage. Now, of course, the Irish are trying to convince the world that cabbage is edible, so they can inflict it on .. eh .. export it everywhere.
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There are several different manufacturers of stout in Ireland, though they all use the same method to make it: mix potatoes, a few drops of alcohol and some black food dye together and liquidise for an hour. (Note: This recipe is not fixed.) Now, of course, Ireland exports stout to every country on the planet. And anyone who drinks enough of it becomes “more Irish than the Irish themselves”, meaning they can tell great stories, sing sad songs and have the almighty craic.
Craic Speaking of craic, this is another major Irish export connected to stout above. We bring it with us wherever we go, though often other nationalities don’t embrace it the way we do. However, it is important to note that there are certain disreputable folks out there who have been smuggling the drug ‘crack’ around the world under false pretences. These people – and they know who they are – just head through customs with their illegal produce and when asked what it is, put on an Irish accent and say: “Shure, it’s just a bit of craic like.”
When we’ve finished exporting the ground and all the trees for burning, we can then start breaking up tables, chairs and wooden floors and start exporting them to countries that need fossil fuels.
Rain
They will often dress up like leprechauns to seem more convincing, but that really just adds insult to injury for both Irish people and leprechauns.
Green In the 1911 Census, the number of shades of green in Ireland stood at just 40. In the 2011 Census, that figure had reached 112 – more than Greenland which even has the word ‘green’ built into its name! This meant that we could easily afford to export some of our shades of green and still have enough left in the country to keep natives and tourists happy. The Irish Colour Exporting Board began targeting places like Siberia, Antarctica, the Sahara Desert and, funnily enough, Greenland as potential big buyers.
You can either look on rain as something wet that falls from the sky or as a valuable resource. In recent centuries, Ireland chose the latter option and has been exporting more than 60 different types of rain to various countries around the globe since the 9th century. It is still the world’s largest exporter of this or any other kind of weather. The different types available include wet rain, dry rain, soft rain, hard rain, lashing rain, big rain and rainy rain, with the biggest demand being from nice, warm, sunny countries. However, these countries never want too much rain and tend to only buy small bits now and again.
People
By 2013, we were exporting 50 shades of green to nearly 30 countries around the world and were even branching out to sell some autumn browns, night blacks and that kind of beigey, sandy colour you find on beaches.
Peat One of the greatest economic developments for this country was the discovery that bits of the ground could be burnt as fuel. Ireland is more or less covered in bits of ground, so we could easily afford to export peat and other bits of bog to whoever would buy it.
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Apart from rain, potatoes and leprechauns, the one thing Ireland always seemed to have too much of was people. Back in the 1840s, for example, those rather cruel English folk who conquered us had to do a huge cull as there were so many of us. From then on, though, the Irish tried to come up with their own solution which preferably didn’t involve anyone dying. To this end, Ireland has been regularly and efficiently exporting its people to every single country on the planet, often whether they needed them or not.
Chat There is nothing the Irish have more of than a bit of old chat, with many economists reckoning it to be our single most abundant resource, particularly if we’ve had a feed of pints. Wherever the Irish people were exported to down through the years, we always brought lots of old chat with us and often tried to sell it to the locals. If the locals wouldn’t buy any, we would just force it on them for a bit of fun.
Luck While it might seem slightly intangible as exportable produce goes, Ireland has always managed to trade on its luck on global markets. Indeed, when Irish charm and blarney ran out in the late
1950s, luck was all the Irish had left. We put it to good use internationally and the ‘luck of the Irish’ often traded at extremely high prices, particularly at race meetings in England. However, we ran out of luck again in 2008, although it now looks like we may be building up stocks of it again as the economy picks up and we work our way towards Tiger Two. Let’s just hope and pray that we don’t reach ‘peak Irish luck’ too soon.
Garvan Grant Garvan Grant is the author of The Trueish History of Ireland, a warm, witty and very funny celebration of Irish history. Garvan also runs social media accounts and writes online content for a select group of small companies via his company GrantEd Media (granted.ie). He has written satirical columns for In Dublin magazine and did the hugely popular PostMortem column in The Sunday Business Post from 2004 to 2014. You can contact him on garvangrant@hotmail.com or follow his satirical ‘news’ account on Twitter at @garvangrant Thу Trueish History of Ireland by Garvan Grant with illustrations by Gerard Crowley is published by Mercier Press (www.mercierpress.ie), price €7.99.
Farm prices up 5% with land cheapest in Leitrim The cost of agricultural land rose by just over 5 per cent in 2014, as supply reached an eight year high, a new report from the Irish Farmer’s Journal shows. According to the annual report from the agribusiness newspaper, while 2014 was a difficult year for many farmers, with downturns in the price of beef and grain, the land market remained steady with the average price increasing by 5.2 per cent during the year to € 9,890/acre. Over 86,000 acres were offered for sale in 2014, the highest such figure in the eight year history of the report. Based on this, it is evident that the land market in Ireland is in a relatively healthy position at present, which should be reassuring for landowners and selling agents alike wrote Lorcan Allen, editor of the report. Of the 1,850 farms, incorporating 86,408 acres, offered for sale last year, a total of 826 transactions were completed. These transactions amount to 38,149 acres sold, which represents 44.1 per cent of the 86,408 acres offered for sale. Agents up and down the country certainly felt the effect of the increased supply, with the majority reported to be enjoying their busiest 12 months in years. The demand for large holdings appears to have softened somewhat in 2014, the report said, with much stronger competition for farms less than 100 acres. Leitrim was the cheapest source of land in the country, on average, at € 4,047/acre in 2014, representing a 2.6 per cent decline on 2013. Of the four provinces, Leinster led the way, with a total of 35,028 acres brought to the market achieving an average price of € 12,402/acre – a 13 per cent increase on the 2013 average. In Munster, a total of 31,042 acres were offered for sale on the open market at an average price of € 9,836/acre, up by 5.3 per cent.
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In The Spotlight Billy Walsh, current Head Coach to the Irish Boxing High Performance Team, is an outstanding sportsman from Wexford. Billy developed a love of all sports at an early age and excelled at them all. During his own boxing career he won seven Irish Senior titles, represented Ireland at European and World Championships and achieved his lifelong ambition by competing in the Olympic Games in Seoul in 1988. In recent times Billy has turned a labour of love into a career by becoming head coach for the High Performance Team for the last ten years. The successes to date at European, World and Olympic level are unprecedented in the history of Irish Sport and as a result he has become one of the most highly respected and sought after coaches in the world of Boxing. Due to the implementation of strategic planning and a constant mission to improve, Irish boxing has surpassed all other sports with an impressive medal haul from every major tournament in which they have participated. With the help of an amazing back room team and tremendous athletes, Billy has overseen the development and nurturing of many boxers, helping to turn them into world class performers. In the last two Olympic Games (2008 Beijing, 2012 London), the IABA has earned a total of seven medals and has accounted for all but one of Ireland’s Olympic podium appearances. Furthermore, based on the top performances from Ireland’s boxers in those same games, the IABA has nearly doubled its previous medal count from nine medals to 16.
Q. What are the main responsibilities of your job? A. Planning coaching sessions months in advance. Developing a strategy for continuous improvement amongst the support staff and squad. Planning tournaments and training camps worldwide. Preparing budget applications, presenting to the Sports Council and implementing our plans within strict budget guidelines. Looking after the welfare of squad members and ensuring they remain focused and motivated. Q. What motivates you in your job? A. Striving to help young athletes to use the gifts they were given to the best of their ability. Q. How would you describe your work style? A. Hands on and democratic. Q. What is the most valuable professional lesson you have learned so far? A. Treat everyone with the respect they deserve and never be afraid of change. Q. In Ireland, whose career do you most admire and why? A. Brian Cody because of his longevity in a high performance environment and the knowledge he has of his team’s strengths and his opponent’s weaknesses. Joe Schmidt because of his methodical approach and unprecedented attention to detail. Both men possess an absolute desire to keep improving their teams and they also prevent complacency in their squads by selecting the players that are showing the best form. Q. Based on your experience, what is the most valuable career advice you can give others? A. Set realistic and achievable goals in your professional capacity. Once you achieve those goals you must review how they were reached, assess how they can be improved upon and reset at a higher level. Always strive for self improvement and lead by example. Q. In terms of professional sport in Ireland, what do you think is the biggest challenge? A. Our country has an amazing pool of talent for such a small nation, but the lack of funding for the development of adequate coaches and facilities will hinder us in our ability to compete at world level. Q. What is your ultimate professional goal at this point? A. To make Ireland the number one ranking nation at the 2016 Olympics in Rio.
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The Companies Act, 2014: a brief introduction Garvan Corkery, Barrister-at-Law
On 23 December 2014, President Higgins signed the Companies Act, 2014 into law. The Act is the largest ever passed by the Oireachtas, comprising 1,448 sections and 17 schedules. The new act replaces 17 Acts of the Oireachtas and 15 statutory instruments. It places Irish company law on a new footing. The new act aims to: - consolidate statutory company law, rationally reorganising so that provisions on a given subject appear together in one place; - to codify company law to an extent, to state clearly in legislation rules of company law that have emerged from the courts over time; and - to reform company law in certain areas, making it easier to do business. In terms of structure, the biggest change is in the relationship between the legislation and the reality on the ground. The great majority (ca. 85%) of Irish companies are private companies limited by shares (existing private companies). Until now, however, the Companies Acts have assumed that the ‘normal’ company is the public limited company. The new Act does two things to change the position. First, it simplifies the law on the ‘normal’ company, which is expected to be the ‘company limited by shares’ or CLS. Secondly, it sets out the main body of company law with specific reference to this reformed and simplified model of ‘normal’ company. The law relating to other forms of company is then stated separately for each as a series of exceptions and modifications to the basic law. The basic law is set out in parts 1 to 15 of the new Act. Parts 16 to 19 address the other forms of company, namely the designated activity company or DAC, the public limited company, the company limited by guarantee, and the unlimited company. Part 20 allows companies to switch from one form to another, allowing greater freedom than heretofore. The balance of the Act is addressed to matters of interest to financial services companies, and miscellaneous matters. While signed in to law, the Act has yet to be commenced. It is expected to commence in June 2015, though it is as yet unknown whether all provisions will be commenced together, or whether commencement will take place on a phased basis. While it is fair to say that the broad thrust of Irish company law remains the same, there are some significant changes. This article will say some more about the CLS and the DAC, before noting the conversion process and some changes that affect companies generally.
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The new normal: the CLS The CLS will have full and unlimited corporate capacity. Today, any Irish company is limited in what it can do to the activities specified in the objects clauses of its Memorandum of Association and acts incidental to those stated objects. This limitation binds the company and its directors. More frequently than is perhaps realised, it can create difficulty for a company, which finds itself engaged in an activity beyond its capacity, maybe because of inadvertence in the original drafting or a shift in its business over time, exposing itself, its directors and those dealing with it to difficulty and potential liability or loss. With the new Act, the normal company will be able to do whatever it wishes within the law.
The CLS will have, in place of the existing Memorandum and Articles of Association, a simplified one-part, single-document constitution. The CLS will be obliged to state at the end of its name the word ‘Limited’, which may be abbreviated to ‘LTD’, so that if the CLS is the chosen new form there will be no change of name. A CLS will need no more than one director, where at the moment a company needs at least two. However, if the CLS has only one director, it needs a separate secretary. The CLS will be able to dispense with the annual general meeting, even if it is not a single member company, replacing it with a paper-based exercise.
The Designated Activity Company (DAC) In simple terms, the DAC is like the CLS but with an objects clause and so a limit on activity. While it will likely suit the majority of existing private companies to adopt full unlimited capacity, some may prefer to retain the restriction, perhaps because it gives shareholders comfort that the company will carry on the business for which it was formed and not move to some other activity without their being consulted. They may also want a relatively simple form of private limited company with a share capital. Hence the DAC.
end of the 18-month transition period, the existing private company automatically converts to a CLS (though until conversion it is treated as a DAC). If conversion to a DAC by the simplified process is desired, it must be done within 15 months of commencement of the act. Other kinds of company will retain their existing forms, though they will obviously be subject to the reformed law as it applies to them.
With limited capacity, the DAC is the closest thing to the existing private company limited by shares. (Importantly, however, under the new Act an existing private company will automatically become a CLS and not a DAC, unless it choses otherwise.) The DAC is given capacity to do any act or thing stated in its objects, together with incidental acts. The directors are bound to ensure that the DAC conducts itself within the limits imposed by its objects, and shareholders may in certain circumstances apply to court to restrain the carrying on of activities outside of those objects. While creating those rules for insiders, the Oireachtas has also provided some protection for outsiders, who might be unfairly prejudiced were a DAC to seek to escape from a regretted deal by claiming a lack of capacity. The validity of an Act is not to be called into question by reason of anything contained in the DAC’s objects, and the counterparty is not bound to enquire as to the capacity of the DAC as it enters into the transaction. The DAC will have a single-document constitution, comprising two parts, first memorandum of association containing its objects, and secondly the articles of association regulating the rights attaching to shares and the conduct of its affairs. A DAC must have a minimum of two directors. The name of the DAC must end with the words “Designated Activity Company”, which may be abbreviated to “D.A.C.” or “DAC”.
Is action needed? Given that the Act provides for automatic conversion of an existing private company to the CLS if no action is taken, you might ask whether any action is needed. The answer is yes. Section 60 of the new Act requires directors either actively to chose and convert to some other form, or to convert to a CLS by registration of a new constitution, which must also be circulated to the company’s members. Their failure to do so may give rise to complaint from the members and potentially liability for breach of duty. Apart from that, a company should give some consideration to the form of incorporation that it wishes to adopt for the future, and also should consider whether the default rules of the new legislation in relation to the conduct of its affairs will suit. A company may have included bespoke provisions in its existing articles of association. While those bespoke provisions will survive to the extent that they don’t conflict with the new Act, an automatic conversion will leave a company uncertain as to what its constitution actually says. Moreover, until action is taken, the public file will contain the old memorandum and articles of association, which will no longer reflect the company’s actual constitution.
Other changes to note Without trying to be exhaustive about so large a piece of legislation, the following is a brief account of some other changes of note. Loans from Directors to Companies
Conversion The new Act provides for a simplified method of conversion of an existing private company to either a CLS or a DAC. The conversion of an existing private company to a CLS occurs by registration of the revised and simplified constitution with the registrar of companies. If no step to convert is taken before the
Section 236 and 237 of the new Act impose important new rules requiring loans made by directors to their companies to be properly documented. The failure to do so will lead to the loan being deemed to be interest free and subordinated to all other creditors. With these drastic consequences, and given the prevalence of loans from directors as a source of finance for Irish companies, directors are encouraged to give attention to the new rules without delay to protect their interests.
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Directors’ fiduciary duties codified
New forms of transaction
For the first time, a director’s principal fiduciary duties are conveniently described in one place, in sections 227 and 228 of the new Act.
Companies will now be able to merge and divide, simplifying corporate transactions. Divisions may be of particular interest where those running a company no longer get on and want to go their separate ways.
Directors’ compliance statement This concept – on the statute books for more than a decade but never commenced – will now come to life in more focussed form for larger companies (with a balance sheet total and turnover respectively exceeding €12.5m and €25m). Age Qualification for Directors Under section 131, it is provided for the first time that a director must be at least 18 years old. Board Minutes Section 166 introduces new mandatory requirements for the keeping of proper board minutes. Secretary Directors are obliged to ensure that the company secretary has the skills needed for the job. Shareholder written resolutions The Act introduces greater flexibility, allowing for majority shareholder written resolutions, where previously this paper-based approval required unanimity.
Name Changes: consequential action Where, because of conversion to a new form, a company’s name changes, the directors should bear in mind that this will bring a need to revisit the company stationary, its website and other instances where its name appears, for example in regulatory certifications for its services and products, whether in Ireland or elsewhere. Winding Up Petitions The threshold liability for the presentation of a petition to wind up a company goes up from ca. €1,300 to €10,000. Voluntary Strike Off The existing administrative procedure has been put on a statutory footing.
Conclusion While as noted the broad thrust of Irish company law remains as was, the new Act is to be welcomed both for consolidating and simplifying the law and for the reforms that it brings.
*Garvan Corkery is a practicing barrister specialising in commercial law.
Plain packaging for cigarettes signed into law in Ireland President Michael D Higgins signed legislation enforcing plain packaging for cigarettes yesterday (TUE), making Ireland just the second country to do so. The enactment of the law is expected to prompt cigarette companies to initiate court challenges against the Government to block commencement of the legislation. The Public Health (Standardised Packaging of Tobacco) Bill 2014 has proved controversial with producers. It passed the Seanad earlier this month following some final amendments to the title of the Bill. Once in practice, the law means all cigarette packaging will be devoid of branding and will be permitted only to display the name on top, while a health warning will cover the entire packet. It is hoped the new rules will act as a disincentive to children from taking up smoking. Only Australia has enacted similar legislation. The Minister for Children James Reilly has said the Government anticipates legal action to be initiated by tobacco producers once the legislation was signed into law.
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Meet the Team KEVIN O' DONOVAN
PAUL O' SULLIVAN
Partner
Partner
Kevin qualified as a solicitor in 1986 and formed his own practice in 1989. He has vast experience of all forms of residential and commercial property transactions. Kevin also has wide expertise in Wills and probate as well as litigation with a particular focus on personal injuries and equity matters. Kevin is a member of the West Cork Bar Association and Southern Law Association. Kevin is a keen golfer which is his main hobby and is a past Captain of Bantry Bay Golf Club. Practice Areas: Property/Conveyancing, Tax Advice, Probate, Licensing, Employment Law.
Paul qualified as a solicitor in 2000 and became a partner in the practice in 2003. He advises in all areas of conveyancing representing both private and commercial clients, including new and second hand sales/purchases, mortgages, farm transfers and tax issues relating to same. He also works extensively in probate matters including estate administration and estate tax planning. He also has particular expertise in licensing law and is a member of the West Cork Bar Association where he acts as Continuing Professional Development Officer and is also a member of the Southern Law Association. Paul is also a Director in Muintir Skibbereen Credit Union. He is a GAA fan and in particular hurling which he played for many years and is now a coach for Fastnet Gaels. Practice Areas: Property/Conveyancing, Tax Advice, Probate, Licensing, Employment Law.
SANDRA O' SHEA
ANN O'GRADY
LEGAL SECRETARY
RECEPTIONIST/LEGAL SECRETARY
SUSAN O'DONOVAN
MARY O SHEA
ACCOUNTS MANAGER
LEGAL SECRETARY
The Bantry Strategy “The coastal zone of Bantry Bay is a stunning location, containing a precious, rich and unspoilt environment. The long, narrow bay is a safe harbour at the edge of the Atlantic ocean, sheltered between the mountainous spine of the Beara peninsula and the gentler rolling slopes of Sheep's Head . . . Islands are scattered the length of the bay, the largest of which, Bere, Dursey and Whiddy, are home to distinct communities . . .� It isn't a tourist brochure, though it could have been. These are the seductive opening lines of a 120-page document which forms the basis for the first successful attempt of its type at drawing up a coastal zone management strategy in this State. Part-funded by the EU LIFE programme, the project involved a partnership between the local community and Cork County Council, the Coastal Resources Centre at University College, Cork, and the Nautical Enterprise Centre at Cork Institute of Technology. A project office was established in Bantry by Kevin Lynch of Cork County Council and began by setting up a roundtable, with places for representatives of all the stakeholder groups. These groups generated more than 200 distinct proposals, which were widely publicised. After intense negotiation, the proposals were distilled into a set of principles, grouped into 21 issues. These include lack of co-ordination of policies and plans by regulatory bodies (including 13 Government departments) overlapping legal jurisdictions, lack of provision for oil emergencies, protection of heritage, shoreline access and housing. The charter will not gather dust now, according to Lynch. Cork County Council recently advertised for two people to implement it, and it has been recommended for inclusion in the county development plan.
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