Molly Eastman McCarthy, Policy & Public Affairs Officer
Paul O'Grady, Publisher
Ann-Marie Hardiman, Think Media
PUBLISHERS
Published on behalf of The Bar of Ireland by Think Media Ltd
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Colm Quinn
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ENGAGEMENT WITH GOVERNMENT
Members of Council recently met with the Minister for Justice to discuss The Bar of Ireland’s priorities.
Seán Guerin SC
Senior Counsel, Barrister – Member of the Inner Bar Chair of the Council of The Bar of Ireland
In the last edition, I mentioned the election of a new Government and the part played by the Bar Council in the election campaign, in particular with the publication of Justice – A Manifesto for Fairness. Since then, the work of engagement with the new Government has begun in earnest. Representatives of the Council met with the new Minister for Justice, Jim O’Callaghan SC TD, in March. The Minister expressed appreciation for the role the Bar plays in the administration of justice and commended the engagement of The Bar and the Specialist Bar Associations in the provision of information and expertise.
Criminal legal aid
The Programme for Government contains important commitments to “complete a comprehensive review
of the criminal justice system within 12 months and publish an action plan to improve efficiency, remove blockages and cut waiting times” and “reform the operation of the criminal legal aid system and fully restore criminal legal aid fees”. Council representatives sought confirmation that the process of restoring the FEMPI-era cuts to criminal legal aid will be completed this year. The Minister has agreed to pursue this issue and the Council will be pressing for early confirmation in this regard, bearing in mind in particular the ongoing frustration of members as expressed in the most recent general meeting. The volume of disclosure in criminal cases was also discussed, and it was noted that engagement is underway with Department officials on the challenges associated with the current scheme for payment of substantial disclosure.
Civil legal aid
Although some progress has been made on criminal legal aid, the same cannot be said for civil legal aid. Council representatives raised members’ concerns arising from the Legal Aid Board unilaterally imposing new terms and conditions, with substantial cuts to professional fees, in 2012. Despite a series of submissions, meetings and requests to have the fees reviewed, there has been no progress and the rates are lower than rates that had been previously agreed in 1998. Urgent progress is now essential in this important area to secure access to justice.
The Minister acknowledged these concerns and confirmed that it is his intention to await the outcome of the review that is underway under the chairmanship of former Chief Justice Frank Clarke SC. In relation to international protection,
engagement is already underway between Department officials and the Council arising from the EU Migration and Asylum Pact.
Third-party funding and multi-party actions
As the remaining common law jurisdiction in the EU, Ireland is being marketed as a centre for international dispute resolution, and Irish law as an ideal choice of law. The Law Reform Commission (LRC) is considering third-party litigation funding and The Bar of Ireland has endorsed a legislative approach to the issue. The 2020 Review of the Administration of Civil Justice also recommended the introduction of a comprehensive multi-party action procedure in Ireland. The Minister confirmed that he will carefully review the LRC report when published, and that it is his intention to expedite the recommendations contained in the Kelly Report on the Review of the Administration of Civil Justice.
Council of Europe Convention on the Protection of the Profession of Lawyer
The Minister acknowledged the recent finalisation of the Council of Europe Convention on the Protection of the Profession of Lawyer in March 2025, and confirmed that it is his intention, following some clarifications, to seek the approval of the Government to sign and ratify the Convention. The Convention represents a major step forward in guaranteeing the independence, security and fundamental role of lawyers in defending the rule of law and justice in Europe and beyond. When lawyers can perform their duties free from fear or undue interference, they are enabled to defend the rights of individuals, uphold justice, and ensure access to the legal system for all. This is vital for the functioning of democratic societies where the rights of every person must be respected and protected. By safeguarding the profession of lawyer, the Convention ensures continued access to justice and the preservation of the rule of law. Members can find out more about the Convention through the CCBE website – www.ccbe.eu
INSIGHTFUL ANALYSIS
The topics covered in this edition range from environmental law to mental health and sentencing.
Helen Murray BL Editor The Bar Review
Another term has come to a close and The Bar Review can provide some vacation reading. Noeleen Healy BL outlines the emerging barriers in the international protection process in her article, which provides a comprehensive overview of the asylum process and is vital reading for practitioners.
Morgan Shelley BL examines sentencing for those who suffer from mental illness but who do not qualify for a special verdict of not guilty by reason of insanity, and provides an insightful analysis for all members of the Bar, regardless of their areas of practice.
Gemma Hayes BL turns the spotlight on
the recent decision of the High Court in Coolglass Wind Farm Limited v An Bord Pleanála and considers the ramifications for statutory bodies in light of this judgment and, in particular, the Court’s interpretation of the Climate Action and Low Carbon Development Act 2015. Our interview takes us into the world of company law as we speak to Ian Drennan, CEO of the Corporate Enforcement Authority.
Finally, in the Closing Argument, Deirdre Browne BL articulates the challenges facing litigants who seek access to justice via the Civil Legal Aid Scheme in advance of the publication of the muchawaited review.
Specialist Bar Association news
Award of patronage
Legal frameworks and building blocks
On February 12, the Corporate and Insolvency Bar Association (CIBA) awarded a patronage to Mr Justice Michael Quinn. Speaking at the event was Lyndon MacCann SC and Gavin Smith, Partner, Head of Restructuring at DLA Piper. The speakers discussed some prominent cases the judge was involved in. At the end of the event, Mr Justice Quinn was presented with a keepsake by CIBA Chair Kelley Smith. The evening finished with a networking reception in The Sheds.
On February 10, the Construction Bar Association hosted a tech talk titled ‘Legal Frameworks and Building Blocks: A Tech Talk for Aspiring Construction Barristers’ at the Gaffney Room and online. Speakers included Niall McEneaney BL, Aoife Sheehan BL, and Alan P. Brady BL, and the session was chaired by John Trainor SC. The event shared insights on how aspiring barristers can get involved in construction law, focusing on the key legal frameworks and building blocks necessary for a successful practice in the field.
From left: Gavin Smith, DLA Piper; Kelley Smith SC, CIBA Chair; and, Lyndon MacCann SC.
From left: John Trainor SC; Niall McEneaney BL; Aoife Sheehan BL; and, Alan P. Brady BL.
Taxation issues arising from employment
The joint Employment Bar Association (EBA)/Tax Bar Association (TBA) CPD event on ‘Taxation Issues Arising from Employment’ took place on February 4 in the Gaffney Room and online. The session was chaired by Brendan Kirwan SC, Chair of the EBA, with speakers Gráinne Duggan SC and Jeananne McGovern BL. The event focused on various taxation issues arising in employment law, including the treatment of different types of claims, the taxation of settlement agreements, and taxation concerns in claims involving protected disclosures or multiple causes of action in the courts.
Neurodiversity and equality in the workplace
The EBA opened Neurodiversity Awareness Week by addressing neurodiversity and discrimination in employment equality law. Speakers Sharon Dillon-Lyons BL and Claire Bruton BL considered relevant legislation and case law from Ireland, the EU and other jurisdictions on issues such as the definition of disability, provision of reasonable accommodation, and the interaction with disproportionate burden in reasonable accommodation. Petr Polak spoke remotely about how case law from abroad could be dealt with under Irish and EU law, including examples of good employment practices in the context of neurodiversity from other jurisdictions. This was
On screen: Petr Polak. Seated (from left): Claire Bruton BL; Sharon Dillon Lyons BL; and, Brendan Kirwan SC, EBA Chair.
a fascinating seminar, which had lots of engaging questions from the full-to-capacity Gaffney Room and large online audience.
Not all fun and games
left: Tim O‘Connor BL and Rebecca Lacy BL.
Borders and barriers
The Immigration, Asylum and Citizenship Bar Association (IAACBA) event ‘Borders & Barriers: Assisting Vulnerable Applicants in International Protection and Immigration Law’ took place on February 21 in the Gaffney Room and online. Chaired by Aoife McMahon BL, the CPD session focused on addressing the challenges faced by vulnerable applicants in areas such as gender-based violence, child rights, and human trafficking. Expert speakers Céile Varley BL and Dr Ciara Smyth explored key topics, including the complexities of vulnerable witnesses, domestic violence, and human trafficking, as well as the principle of the best interests of the child from a rights-based perspective. The event was a valuable opportunity for legal professionals to deepen their understanding of these critical issues.
Comparative insights in regulatory law
On February 28, the Sports Law Bar Association (SLBA) and the Tort and Insurance Bar Association (TIBA) hosted a session titled ‘Personal Injury and Social Utility – Not All Fun and Games’. The event explored the intersection of legal liability and the social benefits of sport, focusing on the Courts and Civil Law (Miscellaneous Provisions) Act 2023 and the Occupiers Liability Act. Chaired by Rebecca Lacy BL, Secretary of the SLBA, the session featured speaker Tim O’Connor BL.
Irish/UK collaboration
“There is nothing to fear from increased cooperation and recognition.” The panel discussion on ‘Corporate Restructuring: The Case for Irish/UK Collaboration’ took place at the Irish Embassy London on March 20. After a warm introduction from Deputy Head of Mission Orla McBreen, an engaging discussion featured Mr Justice Michael Quinn (High Court of Ireland), Tal Goldsmith (Stephenson Harwood), Brian Kennedy SC (The Bar of Ireland), and Lisa Smyth (McCann FitzGerald). Some of the issues discussed by the panel included:
■ how Ireland’s insolvency and restructuring regime operates in comparison with the new plan for restructuring in the UK; ■ fundamental differences between the two
The Professional, Regulatory and Disciplinary Bar Association (PRDBA) and Addleshaw Goddard hosted a joint event in Addleshaw Goddard’s new premises on March 20. Chaired by Vice-Chair Thomas Hogan SC, Addleshaw Goddard’s Stephen McLoughlin and Cathal Ó Curraín discussed the interaction between professional regulatory proceedings and criminal and civil processes. Tara O’Halloran BL and Alison Fynes BL then compared recent Irish and UK case law.
jurisdictions, including the necessary requirements for entry, applicable thresholds for approval, and differing timescales; and,
■ some key Irish judgments that have been willing to give recognition to foreign judgments, and the success of the Norwegian Air examinership in Ireland. This was followed by a networking reception, which allowed colleagues from the different jurisdictions to connect. Thanks are extended to the panel and hosts at the Irish Embassy, as well as the partners of this event – the EU Bar Association, the Corporate and Insolvency Bar Association, and The Bar of Ireland, with support from Ireland for Law and the London Irish Lawyers Association.
From
From left: Mr Justice Michael Quinn; Tal Goldsmith, Stephenson Harwood; Lisa Smyth, McCann Fitzgerald; and, Brian Kennedy SC.
Updates and insights in immigration and asylum law
The second annual joint Irish Immigration Lawyers Association (IILA) and Immigration, Asylum and Citizenship Bar Association (IACBA) event took place on March 21, at the Presidents’ Hall, The Law Society, Dublin. The event featured an introduction by Ms Justice Denise Brett and welcome addresses from Aoife McMahon BL and Thomas Coughlan. Speakers included Colm O’Dwyer SC on LGBTQ+ credibility challenges, Femi Daniyan BL on injunctions in deportation cases, Siobhan Clabby BL on contested age and advocacy for unaccompanied minors, and Barbara Egan from the Legal Aid Board.
Social media and personal injury
The joint Media, Internet and Data Protection Bar Association (MIDBA) and Tort and Insurance Bar Association (TIBA) CPD on ‘Social Media Evidence in Personal Injury Proceedings’ took place on February 5 in the Gaffney Room. The event focused on the growing use of social media content as evidence in personal injury claims. The discussion covered several key areas, including how and when social media content may be obtained and used to dispute injury claims, its application in conjunction with s.26 of the Civil Liability and Courts Act 2004, and the potential for obtaining such evidence through the discovery process. The CPD was chaired by Michael O’Doherty BL, Chair of the MIDBA, and the speaker was Shane English BL
Michelle Farrell
Waad Alias
from the TIBA, who guided attendees through the complexities of the topic.
From left: Michael O’Doherty BL and Shane English BL.
Ceardlann FGL/CPD
Understanding
Ó chlé: Ronan Munro, Breitheamh den Chúirt Chuarda; agus, Méabh Smyth BL.
Ar an Satharn, 8 Márta, reáchtáil Cumann Barra na Gaeilge ceardlann FGL/CPD in Áras Pobail Ráth Chairn i nGaeltacht na Mí. Bhí sraith cur i láthair mar chuid den imeacht, a bhí faoi chathaoirleacht Ronan Munro, Breitheamh den Chúirt Chuarda. Phléigh Nuala Egan ón mBord um Chúnamh Dlíthiúil cúnamh dlíthiúil, agus ina dhiaidh Conor Ó Briain, a labhair ar chleachtais eachtracha agus dlí inimirce. Chlúdaigh Seán Ó hUallacháin dlí teaghlaigh san Ard-Chúirt, agus rinne Meabh Smyth BL cur i láthair ar réamhthagairtí ó chúirteanna na hÉireann chuig Cúirt Bhreithiúnais na hEorpa. Phléigh Kevin Kelly BL cinneadh Egan BRMH ansin in Germaine v Day [2024] I EHC 420.
Ukrainian judges visit Ireland
A high-ranking delegation of judges from Ukraine visited Ireland recently to discuss the challenge of maintaining justice and upholding the rule of law during conflict and wartime, with colleagues from the judiciaries in Dublin and Belfast.
Irish Rule of Law International (IRLI), together with the European Union Advisory Mission (EUAM) Ukraine, hosted judges from the Ukrainian Supreme Court and several regional level courts to share the lessons learned from each other’s experiences. The Ukrainian delegation was led by Oleksandr Marchuk, Head of the Cassation Criminal Court within the Supreme Court, and his Supreme Court colleague Oleksandra Yanovska. They were accompanied by four judges from Kyiv, Odesa, Kharkiv, and Dnipro.
The Chief Justice of Ireland and other senior judges met the Ukrainian delegation in Dublin, along with officials from the Irish Department of Foreign Affairs. Academics from the Irish Centre for Human Rights at the University of Galway and Irish-based judges and lawyers working in The
site-specific conservation
The Planning, Environment and Local Government Bar Association (PELGBA) seminar on ‘Understanding Site-Specific Conservation Objectives’ was held on March 20 in the Gaffney Room and online. Tom Flynn SC, Chair of the PELGBA, opened the event, which featured speakers Brian Foley SC and Aebhin Cawley, CEO of Scott Cawley. The seminar focused on article 6 of the Habitats Directive, which outlines the obligations of EU member states to protect and manage their Natura 2000 sites. Specifically, under art.6(1), member states were required to establish Site-Specific Conservation Objectives (SSCOs) to ensure effective management and achieve the Directive’s goal of maintaining the favourable conservation status of species and habitats. The event aimed to provide practitioners with a practical understanding of SSCOs, including their identification, implementation, quantification, and measurement, as well as Natura 2000 Management Plans. It also offered an overview of recent case law on the subject.
The Ukrainian delegation visited the Department of Foreign Affairs in Dublin to discuss Ukraine, Irish assistance to Ukraine, and challenges faced by the Ukrainian judiciary in regard to international crimes. Back row (from left): Oleksandr Ishchenko, European Union Advisory Mission Ukraine (EUAM); Iryna Khuda, EUAM; Sarah Flood, Department of Foreign Affairs and Trade (DFAT); Eoin Murphy, DFAT; Ruth Parkin, DFAT; Judge Oleksandr Marchuk, Supreme Court of Ukraine; Judge Iryna Shapovalova, District Court of Dnipropetrovsk; Judge Svitlana Muratova, District Court of Kharkiv; Judge Oleksandr Harskyi, Odesa District Court; Judge Maryna Bondarenko, Kyiv District Court; and, Maria McCloskey, Irish Rule of Law International. Front row (from left): Judge Oleksandra Yanovska, Supreme Court of Ukraine; Aonghus Kelly, EUAM; Dearbhla Doyle, DFAT; Siobhán Miley, DFAT; and, Judge Magda Koole, EUAM and The Hague Court of Appeal.
Hague at the international courts also met the visiting delegation. The delegation then travelled to Belfast to meet the Lady Chief Justice of Northern Ireland at the Royal Courts of Justice,
and for discussions and presentations on conflict and post-conflict cases by members of the Northern Ireland judiciary and academics from Queen’s University Belfast.
International Women’s Day
Leading voices in advocacy Sinéad Burke, Dr Maeve O’Rourke, and Mellissa English SC discussed the importance of ‘Accelerating Action’ during a panel chaired by Ms Justice Marguerite Bolger during The Bar of Ireland’s annual International Women’s Day celebration on March 6, at the Honorable Society of the King’s Inns. The panel highlighted the need for continued momentum in advancing equality and resilience within the legal profession and society. Following the discussion, Ms Justice Marie Baker (retd.) delivered the keynote address, emphasising the evolving role of women in the legal profession and the broader societal imperative to accelerate gender equality.
TY Programme
On March 5 and 6, The Bar of Ireland’s Look into Law Transition Year students had the unique opportunity to visit the historic Green Street Courthouse, where they stepped into the shoes of barristers, judges, and witnesses in a mock trial. Alan Baker from the Courts Service also spoke to students about the history of the courthouse and famous trials held there during the Irish Rebellion of 1798, including that of Theobald Wolfe Tone.
Now in its tenth year, the Programme welcomed 96 students from 96 schools, encompassing 24 DEIS schools, and spanning 21 counties. Since 2015, the Programme has continuously evolved to accommodate students from across the country and aims to offer Transition Year students a thorough understanding of the legal system, court proceedings, and the responsibilities of barristers.
Keeping Commons
Held on March 14, The Keeping Commons Conference, supported by the Young Bar Committee, brought to the fore the expertise of early career researchers and young practitioners, while also building on the knowledge and proficiency of more senior scholars and practitioners. Members gathered for a day filled with speakers leading conversations on criminal law and evidence, family, childcare and employment law before concluding the afternoon with a roundtable discussion on academia and practice.
Front row (from left): Ms Justice Marie Baker (retd.); Sinéad Burke, disability activist, CEO and founder of Tilting the Lens; and, Ms Justice Marguerite Bolger. Back row (from left): Femi Daniyan BL, Chair, Bar Equality and Resilience Committee; Dr Maeve O Rourke, Human Rights Lecturer, University of Galway; and, Mellissa English SC, Chief Parliamentary Legal Advisor.
Ciara O’Brien BL is pictured with Wicklow-based Transition Year students Holly Timmons, Danny O’Shea, MaggieSue Morris, Alex Moran, Sarah Lewis, and Aoibhinn Hartley. (Photo: Conor McCabe Photography.)
Finn Keyes BL and Chloë Cass BL at the ‘Keeping Commons’ Young Bar Conference on March 14.
HOW TO GET AHEAD IN ADVERTISING!
Molly Eastman McCarthy Policy and Public Affairs Officer, The Bar of Ireland
The Bar of Ireland plays a central role in promoting the barrister profession and safeguarding its reputation as a centre of excellence in the provision of legal and advocacy services. As a result, the name of the organisation carries significant value to briefing entities, stakeholders, members, and the wider public. Maintaining this value and prominence, both online and offline, is essential.
Particularly in online content, effective branding and strategic online engagement are crucial for barristers to stand out in a competitive legal landscape. Success in branding a professional identity – recognising that wider range of practice types and profiles as well as practitioner subject matter expertise –involves leveraging online and digital platforms to enhance recognition while attracting new opportunities.
The Bar has developed marketing and communication supports to help members showcase their professional practice through presentation, email, and online communications channels.
Enhancing communication with branding elements
Communication by email and post is common practice for barristers. Such communications are read and shared by many outside one’s immediate circle, often leading to judgements based on content and presentation. Therefore, using a professional logo, letterhead, and email signature establishes credibility, trust, and a recognisable brand identity with existing and prospective clients.
The Bar of Ireland can assist members in showcasing their professional practice across a range of communications channels.
Logo and letterhead template
All members of The Bar of Ireland have the right to use the logo as part of their membership and are strongly encouraged to use the logo on business cards, email, fax cover sheets and other appropriate communications material relevant to their own individual practice. Branded letterhead templates specifically for Junior and Senior Counsel are also available to members.
Email signature
As the most ubiquitous form of communication, a member’s email signature is an opportunity to include principal qualifications, contact details, and the Bar logo. Members may also wish to include memberships and links to their Law Library profile or LinkedIn.
Virtual backgrounds for remote hearings
The home and office setting might not always be desirable for group consultations or remote hearings. We offer branded Zoom or Teams backgrounds for immediate recognition while reinforcing a member’s brand identity. This is particularly beneficial during group consultations or CPD presentations, as it allows clients to quickly identify their barrister.
The Bar of Ireland branded virtual backgrounds are available on the members’ website.
PowerPoint presentations
Barristers often deliver on-site presentations to firms, and using branded PowerPoint presentations again enhances trust and recognition, and reinforces professional identity.
The value of online social marketing – LinkedIn
As the recommended social media channel for Bar members, LinkedIn is invaluable for barristers aiming to be noticed by prospective briefers and strengthen relationships with existing ones. LinkedIn provides a platform to establish credibility by showcasing professional achievements, expertise, and thought leadership. By actively participating in discussions and connecting with colleagues, solicitors, and in-house counsel, members can broaden their network and showcase expertise on subject areas pertaining to their personal practice.
Today at a glance – The Bar of Ireland LinkedIn
■ 17,500 followers;
■ over two million impressions in the year to date; and,
■ followers include solicitors, State bodies, civil servants, politicians, media, etc. – both national and international.
Building your online identity on LinkedIn – top tips
■ Start small: brand your profile using the template on the Law Library member site. It is recommended to include a professional photo, detailed experience, and a summary highlighting expertise and achievements.
■ Like and share: if you are cautious about writing and posting your own content, like, comment and re-share content from others that you trust and follow.
■ Showcase publications: highlight authored articles, papers, or books to establish credibility.
■ Promote events: share information about any upcoming CPDs or speaking engagements to increase attendance and visibility.
■ Strengthen privacy settings: minimise unwanted exposure by limiting visibility of personal details, turning off public commenting, and enabling settings to require your approval before others can tag you in posts.
The Bar appreciates that professional visibility coupled with the widespread use of social media increases the risk of being targeted by misinformation or defamatory content. Therefore, practical guidance on responding to such is available for Law Library members on the members’ site.
The
Bar communication channels – year at a glance
Each of these channels offers an opportunity for members to showcase their expertise and skills:
■ 12 podcast recordings;
■ 11,000 podcast plays (circa 60,000 to date);
■ 26 Viewpoints published;
■ 322,000 visits to the Law Library website with an average of 26,000 visitors monthly;
■ 208 one-to-one communication consultations to date;
■ five annual issues of The Bar Review; and,
■ 17 Specialist Bar Associations delivering a host of CPDs and seminars.
Establishing trust and credibility – your Law Library profile
The Law Library website, which garners hundreds of visits each day, offers an excellent platform for members. A detailed online profile can significantly enhance a practitioner’s visibility, familiarity, and professional credibility. This is particularly important where new and younger solicitors may not yet be familiar with Law Library members and their expertise.
Law Library profiles provide the ‘first introduction’ by members to prospective clients. Things to consider including when building a Law Library profile:
Basic details
■ Name;
■ phone number, address and email;
■ membership status;
■ qualifications;
■ areas of practice; and,
■ Circuits.
Expanded details
■ Biography;
■ recent cases and legal work;
■ publications;
■ speeches/lectures;
■ pro-bono work; and,
■ LinkedIn profile.
Photograph
■ Periodically, The Bar of Ireland arranges for a photographer to take headshots of members – sessions are announced in In Brief;
■ ensure it is high resolution, professionally taken and you are in professional dress; and,
■ submit to communications@l awlibrary.ie
Advertising and the Code of Conduct
Barrister advertising is now governed by the Legal Services Regulation Act 2015, by virtue of SI 644/2020. Key provisions within those Regulations, as they relate to the website member profiles and other actions, include the requirement that any statement:
■ not be false or misleading in any material respect;
■ not be such as to bring the legal profession into disrepute; and,
■ can include information relating to proceedings that you acted in, as long as that information is publicly available; otherwise, consent of the client will be required.
Read the SI here: https://www.irishstatutebook.ie/eli/2020/si/644/made/en/print
Watch the CPD herehttps://cpd.lawlibrary.ie/mod/page/view.php?id=320 (from 40.00)
Read a synopsis here: https://thebarcouncil.newsweaver.com/Announcements/taz0ybjr19r?a=5 &p=7704574&t=608546
As the recommended social media channel for Bar members, LinkedIn is invaluable for barristers aiming to be noticed by prospective briefers and strengthen relationships with existing ones. LinkedIn provides a platform to establish credibility by showcasing professional achievements, expertise, and thought leadership.
Three things members can do today
1. Review your Law Library profile with the above in mind.
2. Book a 1:1 communications consultation in the member’s link below.
3. Get involved! Recent commentary on a published judgment or presentations are excellent sources for a short Viewpoint blog, podcast episode, or Bar Review article to be re-shared on LinkedIn via the Law Library website. Email communications@lawlibrary.ie for guidance and to start the process.
A suite of supports is available to members to support them in building Law Library profiles and utilising branding tools and templates. Please see the link to the members’ site below: https://members.lawlibrary.ie/optimising-your-practice/your-profilebranding-tools/
Members’ experiences
Members spoke to The Bar Review about their experience of engaging with the Bar’s one-to-one communications consultation service:
“I found the communications consult with The Bar of Ireland very helpful. The Communications team advised me on how to ‘fill out’ my Law Library profile, which I expected, but they also gave me tips on how to optimise my presence on LinkedIn, which has been key to establishing my practice early in my career. There are loads of branding tools and resources that The Bar of Ireland provides: Zoom and Microsoft Teams backgrounds, letterheads, email signatures, LinkedIn profile headers and social media guidance all help to convey a professional image that allows barristers to look legitimate and respected, and the way to find and use all of these is to schedule a brief consultation from the Communications team. This is especially important when we are compared to the slick marketing and branding available to solicitor colleagues in large law firms!”
Paul Maier BL
“The communications consultation enhanced my practice and offered interesting insight into LinkedIn algorithms and the best use of The Bar of Ireland online profile. It’s useful when you are self-employed to step back and assess your online presence from time to time.”
Member called to the Bar in 2020
COMPANY GOOD
Ian Drennan, CEO of the Corporate Enforcement Authority (CEA), speaks about the Authority’s work, and the role of legal professionals within the CEA.
Ann-Marie Hardiman, Managing Editor, Think Media
An accountant by profession, and having trained in private practice, Ian Drennan joined the Office of the Comptroller and Auditor General at the start of his career, intending to stay in the civil service for a year or so. Thirty years later, he says, he is still a civil servant. The intervening years saw him work in the Departments of Finance and Health, before moving to the then Office of the Director of Corporate Enforcement (ODCE) as Head of Compliance. A stint as CEO of the newly established Irish Auditing and Accounting Supervisory Authority (IAASA) followed, before he returned to the ODCE as Director in 2012. With the evolution of the ODCE into the CEA in 2022, Ian was appointed CEO of the new organisation. It’s a career that has spanned an era of significant change in how professions are regulated, with the IAASA and the Legal Services Regulatory Authority (LSRA) just two examples of independent
authorities established in recent years. The ODCE was set up to fulfil a similar regulatory function for company directors, and Ian says that in essence, the CEA’s remit is the same as that of its predecessor: “To encourage compliance with the Companies Acts, and to enforce non-compliance with company law. When I trace it back to the establishment of the ODCE, there was effectively no enforcement of company law in this jurisdiction, and clearly that’s not acceptable in a modern democracy, where people are availing of very significant privileges such as limited liability. The quid pro quo that goes with that is that those availing of such privileges are expected to behave to a certain standard and to be subject to an enforcement regime that steps in where those standards are not met”. While the CEA has broadly similar powers to those of its predecessor, it has a greater degree of independence; whereas the ODCE operated largely under the auspices of the Department of Enterprise, the CEA is an autonomous State agency in its own right: “The structure of the ODCE was no longer considered suitable for our needs. We needed a more agile organisation. We have our own recruitment licence, which confers upon us a greater degree of flexibility in hiring people possessing the skills and experience that we need”. Both the compliance and enforcement functions involve interaction with a wide range of State and non-State actors. From a compliance perspective, it’s about reaching out to the company directors of today, and indeed those of tomorrow, as well as to those who advise them: “We take encouraging compliance very seriously. We do a certain amount ourselves in the form of providing guidance documents and materials through our website and social media. But we also spend a lot of time and effort working with company directors, company directors’ representative bodies, and the professions – The Bar of Ireland, the Law Society, and the accountancy profession, for example. If we can work with those professional bodies, through collaborating in CPD or various other initiatives, that helps us to get our message out to their membership and, in turn, to their clients”.
We take encouraging compliance very seriously. We do a certain amount ourselves in the form of providing guidance documents and materials through our website and social media.
Other stakeholders that the Authority interacts with regularly include educational institutions, the Company Law Review Group, the Revenue Commissioners, and business representative groups like Ibec and ISME. On the enforcement side, there are further interactions with, for example, the Charities Regulator. “For example, a lot of charities are incorporated as companies, so there’s a commonality of interest there. We also have an important relationship with An Garda Síochána, not least because they provide, under our statutory model, a number of secondees to the CEA. The Central Bank is another entity that’s engaged in public interest work and most of the entities that come within its remit are companies”.
Case by case
So how does a company or company director come to the attention of the CEA? In the first instance there are statutory responsibilities on certain office holders under company law, such as auditors and liquidators, to report to the CEA on certain matters. In addition, certain professional bodies (for example, the accountancy bodies) are also required to report under certain circumstances. For example, every liquidator appointed to an insolvent company has a legal obligation to report to the CEA on matters, including the directors’ conduct, in the run-up to the company entering liquidation. Auditors are obliged to report where, during an audit, information is identified suggesting to the auditor that an indictable offence under company law may have been committed. According to Ian, the CEA endeavours to be pragmatic and proportionate in how it deploys its considerable statutory powers: “We examine each of those reports – as well as other inputs coming to our attention – and take a view as to whether further action is required. In the context of liquidators’ reports, our role is to take a view as to whether the directors should be free to carry on about their business or, alternatively, whether they should be subject to enforcement action such as restriction or disqualification, both of which are public protection measures”.
He says this is very much in the spirit of company law: “Businesses fail – that is a fact of commercial life – and provided you haven’t acted in an inappropriate manner, company law takes the view that you should be free to get back up on the horse and off you go again”.
Another major source of investigations for the Authority are public complaints, of which hundreds are received in any given year. The first task in dealing with these is ascertaining whether they fall within the CEA’s remit. For example, a complaint about a charity may turn out to be a matter for the Charities Regulator, in which case the CEA will refer it to that body. In cases where company law is at issue, once again a proportionate response is key: “In cases of indications of ‘low-level’ wrongdoing such as failure to comply with certain more routine administrative obligations under company law, the CEA will, generally, endeavour to have the matter addressed without recourse to statutory powers or enforcement action such as, for example, prosecution. In such cases, provided that we are satisfied that the relevant issue has been addressed, that will be the end of the matter. However, where the directors choose to take a different approach, we will then consider our enforcement options. Such an approach results in a proportionate use of our powers, and the efficient and effective use of resources. That frees up resources for deployment on more serious indications of potential wrongdoing”.
In Ian’s experience, most directors are willing to engage constructively with the Authority: “Running a company is a challenging endeavour, with the focus generally being on operating a profitable business, paying the bills, and trying to stay on the right side of the law. We’re very conscious of that. In that context, it is often the case that, if a company’s directors are not complying with some aspect of company law, it’s through oversight. So in our experience, a lot of those people, when you try to deal with them, make best efforts to meet you half way. They will say, ‘I didn’t understand that that was an issue’, or ‘the auditor has identified
A legal edge
this particular issue, but we’ve resolved it’. What you reserve your statutory powers for is where the evidence would suggest that there is a degree of intent, or people’s behaviour is suggestive that they’re trying to do harm to others through the vehicle of a company. That’s where we should be devoting our resources, and that’s where we do devote them”.
Priorities and challenges
The CEA is still a relatively new organisation, and the last two years have involved a significant amount of work establishing its management and regulatory structures: “We’re now subject to the Code of Practice for the Governance of State Bodies and that brings additional rigour like having to have an internal audit function and an audit committee”.
Recruitment to the new, larger organisation is also a challenge: “We employ quite a few legal professionals, both barristers and solicitors, and it’s a very competitive labour market for people with good experience”.
I don’t go through a single day without talking to someone who is a legal professional within this organisation. They are absolutely core to what we do.
The CEA employs a number of legal professionals, including barristers, on its staff, and also avails of external advice from members of the Bar on a regular basis. Ian says they are integral to the operation of the Authority: “I don’t go through a single day without talking to someone who is a legal professional within this organisation. They are absolutely core to what we do. At director level (i.e., senior management), we have two barristers at the moment and, throughout the organisation, we have a number of other legal professionals”.
The CEA also operates an external panel of counsel to provide legal services as required. A recent call for expressions of interest has now closed, but Ian says it will be an ongoing process, and the Authority is interested in hearing from both new and more experienced counsel who are interested in working with the CEA.
An ounce of prevention
While public focus when it comes to the CEA might tend to be on its ‘white collar watchdog’ enforcement activities, Ian says that its advocacy and education role is just as, if not more, important, and this is something they very much want to build on, now that the Authority is more established: “Prevention is better than cure. At the end of the day, if people have a better understanding of what is required of them and the public have a better understanding of what they’re entitled to expect from company directors, that in itself is self-policing”.
There are key challenges to this: “Company law can be quite complex, so the first thing is to try and develop guidance that is accurate, and then secondly, to present it in such a way that it is accessible to more than just the professional audience. If we’re producing guidance that is really only navigable to a trained legal professional, that’s no use to your average company director. It needs to be something that they can understand and digest relatively easily. It’s a strategic aim of ours to provide more material in that vein as and when the need arises”.
Council member
In addition to his role in the CEA, Ian serves on the Board of the Medical Council, and is a member of that body’s Fitness to Practice and Audit and Risk Committees. He is also in the final year of a master’s in law, all of which don’t leave much time to relax. He is looking forward to having a little more time once exams are over in May, but in the meantime he tries to get to the gym, and occasionally relax in front of the TV.
A directory of legislation, articles and acquisitions received in the Law Library from January 24, 2025, to March 20, 2025.
Judgment information generated by Law Library AI.
Edited by Vanessa Curley, Susan Downes and Clare O’Dwyer, Law Library, Four Courts.
ANIMALS
Animal welfare law – Injunction order –Injunction – Applicants seek an injunction to prevent the euthanising of XL Bully dogs – Whether to grant an injunction restraining the euthanising of XL Bully dogs – 31/01/2025 – [2025] IEHC 60
My Lovely Horse Rescue and ors v Minister for Rural and Community Development and ors
ARBITRATION
Arbitration law – Enforcement order –Recognition and enforcement –Arbitration Act 2010, s.23 – Applicant seeks recognition and enforcement of a Polish arbitral award against the first and third respondents – Whether the Polish arbitral award should be recognised and enforced in Ireland – 22/01/2025 –[2025] IEHC 64
Project Solartechnik Fund Fundz Inwestycyjny Zamkniety v Solas Bond Company DAC
Library acquisitions
Schill, S. Yearbook Commercial Arbitration: Volume XLIX – 2024. The Netherlands: Kluwer Law International, 2025 – N398.3
ARTIFICIAL INTELLIGENCE
Library acquisitions
Lim, E., Morgan, P. The Cambridge Handbook of Private Law and Artificial Intelligence. Cambridge: Cambridge University Press, 2024 – K103
BANKING
Banking law – Summary judgment –Central Bank Act 1997, ss.28, 29 –
Appellant seeks to raise the credit servicing issue in the appeal – Whether the appellant is entitled to raise the credit servicing issue in the appeal before this Court – 28/01/2025 – [2025] IESC 3
Cave Projects LTD v Peter Gilhooley, John Kelly, John Moroney, Rory O’Brien and Joseph O’Hara
BANKRUPTCY
Bankruptcy law – Adjudication order –Adjudication of bankruptcy – Bankruptcy Act 1988, ss.11, 14 – Appellant seeks to overturn the adjudication of bankruptcy – Whether the adjudication of bankruptcy against the appellant should be upheld –09/06/2023 – [2023] IECA 141
Atkinson and anor v Hynes
Bankruptcy law – Dismissal order –Validity of bankruptcy summons –Bankruptcy Act 1988, ss.7(1)(g), 8(6)(a) – Applicant seeks dismissal of the 2021 bankruptcy summons – Whether the appeal regarding the 2021 bankruptcy summons is moot and should be dismissed – 03/03/2025 – [2025] IECA 56
In the matter of a bankruptcy summons issued by Blessville Limited against Patrick Doherty
Bankruptcy law – Dismissal of bankruptcy summons – Extension of time –Bankruptcy Act 1988, ss.8(5),(6) –
Debtor seeks an extension to apply to dismiss the bankruptcy summons –Whether the debtor is entitled to an extension to apply to dismiss the bankruptcy summons – 13/12/2024 –[2024] IEHC 708
Byrne v Maguire
Bankruptcy law – Stay of proceedings –Exclusive jurisdiction clause – Defendants seek to stay proceedings, declare lack of jurisdiction, and dismiss claims as res judicata – Whether the Irish courts have jurisdiction due to the exclusive jurisdiction clause in the Bloem Settlement – 05/03/2025 – [2025] IEHC 120
Dunne [a bankrupt] and ors v Dunne and ors
BUILDING CONTRACTS
Construction law – Enforcement order –Enforcement of adjudicator’s award –
Construction Contracts Act 2013, s.6 –Applicant seeks enforcement of an adjudicator’s award under the Construction Contracts Act 2013 –Whether the adjudicator’s decision should be enforced by the High Court –17/12/2024 – [2024] IEHC 752
Finnegan Contracts Limited v Killycard Developments Limited
Construction Law – Leave to enforce –Adjudication process validity –Construction Contracts Act 2013, 6,10 –Applicant seeks leave to enforce the adjudicator’s award and an order entering judgment against the respondent –Whether the failure to deliver the notice of intention to refer by registered post invalidates the adjudication process –13/03/20205 – [2025] IEHC 139 Tenderbids Limited [trading as Bastion] v Electrical Waste Management Limited
CHARITY
Articles Delaney, M. Charitable institution. Law Society Gazette 2025; Jan/Feb: 26-29
CHILDREN
Childcare law – Special care order –Contempt of court – Child Care Act 1991, s.23H – Plaintiff seeks a declaration that the defendant is in contempt of court for failing to comply with a special care order – Whether the High Court can make a finding of contempt of court against a State agency in plenary proceedings without seeking a penalty – 27/01/2025 – [2025] IESC 2
B. v The Child and Family Agency and ors Childcare law – Care order – Childcare Act 1991, ss.18, 47 – Court seeks compliance with care order directions from the Agency – Whether the Agency failed to comply with court orders regarding unallocated social worker – 11/03/2025 – [2025] IEDC 1
In the matter of the Childcare Act 1991 –Section 18 and 47
COMMERCIAL LAW
Commercial law – Security for costs order – Security for costs – Companies Act 2014, s.52 – Appellant seeks to overturn the High Court’s decision to furnish
security for costs – Whether the trial judge was correct in ordering security for costs despite the delay by the defendant – 31/01/2025 – [2025] IECA 15
Sweeney and anor v The Voluntary Health Insurance Board
Victoria Hall Management Limited and ors v Cox and ors
COMPANY LAW
Company law – Lodgment order –Distribution of undistributable assets –Companies Act 2014, ss.623, 631 –Applicant seeks to lodge unapplied or undistributable balances to a prescribed account under s.623 of the Companies Act 2014 – Whether the official liquidator can lodge unapplied or undistributable balances to the account prescribed by s.623 of the Companies Act 2014 –20/02/2025 – [2025] IEHC 103
Custom House Capital Limited [in liquidation] v Companies Acts
Corporate law – Leave to trade order –Trading in notes by committee members – Companies Act 2014, ss.629, 668 –Applicants seek court’s confirmation or sanction to trade in notes – Whether compliance with the protocol means there would be no breach or the court should sanction trade in the notes – 21/02/2025 – [2025] IEHC 105
GTLK Europe Designated Activity Company [in liquidation] v Companies Act 2014
Company law – Derivative action order –Derivative action – Companies Act 2014, ss.148, 158 – Applicant seeks the leave of the court to bring a derivative action against the respondents on behalf of the company – Whether the applicant should be given liberty to bring a derivative action on behalf of the company claiming damages against the second respondent and the fourth respondent – 30/01/2025 – [2025] IEHC 49
Sutton v Salumi Grazing Limited T/A Salumi Grazing and ors
Company law – Sanction order – Costs and remuneration– Companies Act 2014, ss.551, 554 – Appellant seeks to sanction the examiner’s remuneration costs and
expenses – Whether the High Court erred in refusing to award any costs and remuneration to the examiner –17/02/2025 – [2025] IECA 37
In the matter of Tower Trade Finance (Ireland) Limited
COMPETITION LAW
Competition law – Dismissal order –Jurisdiction – Treaty on the Functioning of the European Union (TFEU), art.102 –Appellant seeks to challenge the validity of the inspection and the acts carried out thereunder, including the seizure of documents – Whether the Irish courts have jurisdiction under Article 1(1) of Regulation 1215/2012 to hear and determine the claims against the Italian competition authority – 31/01/2025 –[2025] IECA 16
Ryanair DAC and anor v Competition and Consumer Protection Commission and anor
Library acquisitions
Ventoruzzo, M., Mock, S. Market Abuse Regulation: Commentary and Annotated Guide (2nd ed.). Oxford: Oxford University Press, 2022 – W110
Articles
Lucey, M.C. Feminist techniques for analysing competition law enforcement. The Irish Jurist 2024;72: 194-206
CONSTITUTIONAL LAW
Constitutional law – Preliminary issue order – International agreement –Constitution of Ireland, Art.29.5.1 –Respondent seeks a declaration that the agreement allowing UK military aircraft in Irish airspace breaches the Constitution –Whether the exercise of the Government’s executive power in relation to external security is justifiable – 18/03/2025 –[2025] IECA 63
Craughwell v The Government of Ireland and ors
Library acquisitions
Cahillane, L., Coffey, D.K. The Centenary of the Irish Free State Constitution: Constituting a Polity? London: Palgrave Macmillan, 2024 – L431.C5
Articles Kingston, S. On the role of constitutional identity: teach solais or will-o’-the-wisp?
The Irish Jurist 2024;72: 1-24
CONTRACTS
Contract law – Mandatory injunction –Ownership dispute over stallion –Partnership Act 1890 – Plaintiffs seek a mandatory injunction to move the stallion to a third-party stud farm – Whether the plaintiffs have established a strong case likely to succeed at trial – 11/02/2025 –[2025] IEHC 72
Clipper BCS LLP and anor v Foley
and anor
Contract law – Dismissal order – Malicious falsehood – Defamation Act 2009, s.42 –Plaintiff seeks damages for breach of contract and negligence against his former solicitor – Whether the plaintiff’s claim against the solicitor for failing to include a claim for malicious falsehood had any merit – 26/02/2025 – [2025] IEHC 121
Tolan v Brady and anor [practising under the style and title of Dillon-Leetch and Comerford Solicitors]
COSTS
Debt collection – Costs order – Legal costs recovery – Legal Services Regulation Act 2015, s.168(1)(b) – Executors seek to recover legal costs from the insolvent estate – 28/01/2025 – [2025] IEHC 34
AIB Mortgage Bank v Kelly and ors Costs law – Legal Services Regulation Act 2015, ss.168, 169 – Whether the plaintiff was entitled to an award of costs against the defendant under s.169(1) of the Legal Services Regulation Act 2015 –14/03/2025 – [2025] IEHC 152
Ambasaid Limited and anor v MBCC Foods [Ireland]
Civil procedure – Costs order – Costs order appeal – Appellant seeks to overturn the costs order and refusal to stay the order – Whether the trial judge erred in awarding costs against the successful party – 14/03/2025 – [2025] IECA 61
Central Bank of Ireland and anor v Niall
Kealy Trading as N K Engineering
Civil procedure – Issac Wunder order –Costs – Legal Services Regulation Act 2015, ss.168, 169 – Appellant seeks to avoid an order for costs being made against him – Whether the respondents are entitled to their costs against the appellant – 19/02/2025 – [2025] IECA 38
In the matter of Decobake Ltd.
Civil procedure – Execution order – Leave to execute costs order – Taxes
Consolidation Act 1997, s.851A –
Appellant seeks to prevent execution of costs order – Whether the respondent was entitled to an order granting leave to issue execution in respect of the order for costs – 07/03/2025 – [2025] IECA 58
Gaultier v The Registrar of Companies
Civil procedure – Costs order – Legal Services Regulation Act 2015, s.169 –Appellant seeks to avoid an order for costs against him – Whether the respondent is entitled to an order for its costs incurred in connection with the appeal – 18/11/2024 – [2024] IECA 272
Hoey v Waterways Ireland
Costs law – Stay on costs order – Costs determination – Legal Service Regulation Act 2015, s.169 – Appellant seeks a stay on the order for costs pending the determination of the proceedings –Whether the appellant has established exceptional circumstances to justify a
departure from the default costs position – 03/03/2025 – [2025] IESC 8
Irish Bank Resolution Corporation Limited (in special liquidation) and anor v Fingleton
Judicial review – No order as to costs –Costs of moot proceedings – Applicants seek costs of the proceedings against the respondent – Whether there was a causal nexus between the institution of the proceedings and the decisions made by the respondent – 20/12/2024 – [2024]
IEHC 753
Muzaffar and ors v Minister for Justice, Pervaiz v Minister for Justice
Civil procedure – Order for costs – Ruling on costs – Appellant seeks to overturn the High Court’s refusal of an interlocutory injunction and to strike out proceedings – Whether Promontoria was entitled to costs for opposing the appeal and whether costs should be granted for the motion issued by the appellant –28/02/2025 – [2025] IECA 51
Ooi v Ireland and ors
Civil procedure – Security for costs order
– Costs order – Companies Act 2014, s.52 – Plaintiff seeks to set aside the High Court’s costs order and substitute it with an order reserving costs pending trial –Whether the High Court erred in awarding costs to the defendants for the motion for security for costs – 24/02/2022 – [2022]
IECA 142
Pembroke Equity Partners Limited v Corrigan and anor
Judicial review – Order of prohibition –Delay in taxation process – Applicants seek an order of prohibition against the taxation of costs – Whether the delay by the notice party in activating the taxation process was inordinate and inexcusable –21/02/2025 – [2025] IEHC 108
Thiebault Enterprise Limited and anor v County Registrar for Galway
COURTS
Library acquisitions
Blackhall Publishing. Blackhall’s Circuit Court Rules: updated to 1 January 2025 (17th ed.). Dublin: Lonsdale Law Publishing, 2025 – N363.1.C5
Blackhall Publishing. Blackhall’s District Court Rules: updated to 1 January 2025 (18th ed.). Dublin: Lonsdale Law Publishing, 2025 – N363.2.C5
Blackhall Publishing. Blackhall’s Superior Court Rules: updated to 1 January 2025 (18th ed.). Dublin: Lonsdale Law Publishing, 2025 – N361.C5
Acts
Ministers and Secretaries and Ministerial,
Parliamentary, Judicial and Court Offices (Amendment) Act 2025 – Act 1/2025 –Signed on February 21, 2025
CRIMINAL LAW
Proceeds of crime – Proceeds of crime order – Proceeds of Crime Act 1996, s.3(1) – Applicant seeks orders under s.3(1) of the Proceeds of Crime Act 1996 in respect of five items of property – Whether the assets claimed by the Bureau are derived from proceeds of crime and controlled by the respondents – 15/01/2025 – [2025] IEHC 73
Criminal Assets Bureau v Calvert and ors Proceeds of crime law – Possession order – Proceeds of Crime Act 1996, ss.3, 7 –Property forfeiture – Appellant seeks to prevent the sale of a family home declared as proceeds of crime – Whether the High Court properly exercised its discretion in appointing a receiver with power of sale –18/02/2025 – [2025] IECA 36
Criminal Assets Bureau v Cash
Criminal law – Re-trial order – Quashing of acquittals – Firearms Act 1925, s.15Criminal Justice Act 2006, s.42 – Criminal Justice Act 2007, s.35 – Criminal Damage Act 1991, s.2(1) – Criminal Procedure Act 2010, ss.23 – Criminal Justice Act 1984, ss.18, 19 – Respondent seeks to quash acquittals and direct a re-trial – Whether to quash the acquittals and direct a re-trial – 11/03/2025 – [2025] IESC 9
DPP v B.(J.); DPP v M.(S.)
Criminal law – Declaration order –Anonymity protection – Children Act 2001, s.93 – Appellant seeks permanent anonymity protection under s.93 of the Children Act 2001 despite reaching adulthood during proceedings – Whether the terms of s.93 of the Children Act 2001 apply to the appellant in this case in respect of the proceedings before the Central Criminal Court, the Court of Appeal and this Court notwithstanding the fact that he reached the age of majority during the currency of those proceedings – 13/03/2025 – [2025] IESC 12
DPP v B.(P.)
Criminal law – Concurrent imprisonment order – Appeal against sentence severity – Criminal Justice (Theft and Fraud) Offences Act 2001, s.14 – Non-Fatal Offences Against the Person Act 1997, ss.5, 15 – Appellant seeks to appeal against the severity of the sentence imposed by the Special Criminal Court –Whether the sentencing court was in error in making a deduction to reflect a combination of both the totality principle and to allow for the incentivisation of rehabilitation – 13/01/225 – [2025] IECA 18
DPP v Byrne
Criminal law – Life sentence – Sentencing of a child – Children Act 2001, s.93 –Appellant seeks to overturn the life sentence imposed for murder committed
as a child – Whether a life sentence should be imposed on a child convicted of murder – 13/03/2025 – [2025] IESC 11
DPP v C.(C.) and anor
Criminal law – Certiorari order – Validity of remand order – Criminal Justice Act 2006, s.99(8A) – Appellant seeks to overturn the remand order made by Nenagh District Court – 14/02/2025 – [2025] IECA 53
DPP v Collins
Criminal law – Imprisonment order –Severity of sentence – Criminal Justice Act 1964, s.4 – Non-Fatal Offences Against the Person Act 1997, s.4 – Appellant seeks to appeal against the severity of the sentence imposed by the Central Criminal Court – Whether the sentencing judge erred in locating the headline sentence in the high culpability range and whether the sentence was excessive and disproportionate – 21/01/2025 – [2025] IECA 19
DPP v Connaghan
Criminal law – Review order – Undue leniency – Criminal Justice Act 1993, s.2 – Non-Fatal Offences Against the Person Act 1997, s.3 – Applicant seeks a review of the sentence on grounds of undue leniency – 23/01/2025 – [2025] IECA 33
DPP v Crotty
Criminal law – Imprisonment order –Appeal against sentence severity –Criminal Justice (Corruption Offences) Act 2018, s.5(1) – Appellant seeks to appeal the severity of the sentence imposed by the Circuit Criminal Court – Whether the sentence imposed on the appellant was unduly severe given the circumstances of the offence – 04/01/2025 – [2025] IECA 20
DPP v Fitzpatrick
Criminal law – Severance order –Severance of indictment – Indictment Rules 1924, s.6(3) – Appellant seeks to sever the indictment for separate trials of each complainant – Whether the trial judge erred in refusing to sever the indictment – 23/04/2024 – [2024] IECA
100
DPP v L.(N.)
Criminal law – Dismissal of appeal –Severity of sentence – Criminal Justice (Money Laundering and Terrorist Financing) Act 2010, s.7 – Appellant seeks to reduce the severity of the sentence imposed – Whether an error in principle has been established by the appellant in the sentence imposed upon him –17/01/2025 – [2025] IECA 21
DPP v Logvinov
Criminal law – Review of sentence –Undue leniency – Criminal Justice Act 1993, s.2 – Criminal Justice (Theft and Fraud Offences) Act 2001, s.12(1)(b) –Applicant seeks a review of the sentence imposed on the respondent on the grounds of undue leniency – Whether the sentences imposed by the sentencing judge were unduly lenient – 20/01/2025 – [2025] IECA 22
DPP v Moran
Criminal law – Dismissal of appeal –Severance of indictment – Criminal Justice (Administration) Act 1924, s.6 – Appellant seeks to overturn conviction due to alleged trial errors – Whether the trial judge erred in refusing to sever the indictment and in allowing the admission of system evidence – [2022] IECA 289 –01/12/2022
DPP v P.(P.)
Criminal law – Consecutive sentences –
Severity of sentence – Non-Fatal Offences
Against the Person Act 1997, s.3 –
Domestic Violence Act 2018, s.39(1) –
Appellant seeks reduction of sentence due to youth and mental health issues –Whether the sentencing judge sufficiently reduced the headline sentence to account for the appellant’s mental disorder –20/12/2022 – [2022] IECA 299
DPP v Reilly
Criminal law – Dismissal of appeal –Judicial review – Offences Against the Person Act 1861, s.48 – Criminal Law (Rape) Act 1981, s.2 – Appellant seeks to overturn conviction for rape offences –Whether the trial judge’s comment on the absence of cross-examination rendered the trial unfair – 28/01/2024 – [2025]
IESC 4
DPP v S.(M.)
Criminal law – Consecutive sentences –
Severity of sentence – Non-Fatal Offences
Against the Person Act 1997, s.3 –
Domestic Violence Act 2018, s.39(1) –
Appellant seeks reduction of sentence due to youth and mental health issues –
Whether the sentencing judge sufficiently reduced the headline sentence due to the appellant’s mental disorder – 23/04/2024 – [2024] IECA 99
DPP v Taib
Criminal law – Recommendation order –
Legal aid eligibility – Applicant seeks legal representation under the Legal Aid –Custody Issues Scheme for a proposed judicial review – Whether the applicant has an arguable case warranting legal aid under the Legal Aid – Custody Issues Scheme – 18/02/2025 – [2025] IEHC 94
Rogers v Director of Public Prosecutions and ors
Library acquisitions
Corrigan, C. The Law of Child Abduction in Ireland. Dublin: Clarus Press, 2025 –M543.4.Q11.C5
Daly, Y. Police Custody in Ireland Oxfordshire: Routledge, 2024 – M650.C5
O’Malley, T. Sentencing: A Modern Introduction. Dublin: Clarus Press 2025 –M587.C5
Articles
Costello, R.Á. A computer’s body and its soul: search and seizure of digital devices following DPP v Quirke. The Irish Jurist 2024; 72: 17-180
Kelly, R. Harassment and stalking. The
Irish Jurist 2024; 72: 83-109
DAMAGES
Personal injury law – Compensation order – Assessment of damages – Plaintiff seeks compensation for injuries sustained in a car accident – Whether the plaintiff’s symptoms of neck pain and headaches had resolved to the level of intermittency by approximately one year after the accident – 06/02/2025 – [2025] IEHC 59 Fitzgerald v Mirabelle and ors
DATA PROTECTION
Civil procedure – Set aside service order –Service of proceedings – Data Protection Act 2018, s.1 – General Data Protection Regulation (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016), art.1 – Plaintiff seeks damages for defamation and breach of data protection rights – Whether the service of proceedings was valid despite not following the court order and rules –30/01/2025 – [2025] IEHC 71
McDonnell v Association of Chartered Certified Accountants
Freedom of information law – Costs order – Freedom of Information Act 2014, s.24(7) – Costs liability in statutory appeal – Appellant seeks costs despite losing an appeal against the refusal of an FOI request – Whether the appellant was entitled to an exemption from costs –06/02/2025 – [2025] IEHC 87 Quinn McDonagh v Information Commissioner
Library acquisitions
Costello, R.Á, Leiser, M. Critical Reflections on the EU’s Data Protection Regime: GDPR in the Machine. Oxford: Hart Publishing, 2024 – M209.D5.E95
DEFAMATION
Defamation law – Declaratory relief order – Defamation Act 2009, s.17 – Whether the statement made by the District Court judge was defamatory and showed bias against the applicant – 18/02/2025 –[2025] IEHC 93
Finucane v Clerk of The District Court Defamation law – Damages order –Defamation Act 2009, s.6 – Plaintiff seeks damages for defamation – Whether the plaintiff was reasonably identifiable within the terms of the allegedly defamatory statements – 10/02/2025 –[2025] IEHC 85
Gallagher v O’Brien Retail Concepts Limited
Defamation law – Stay of proceedings –Forum non conveniens – Defamation Act 2009, s.11 – Plaintiffs seek to stay the proceedings by reference to the principle of forum non conveniens –Whether the Irish courts should decline jurisdiction on the grounds of forum non conveniens –11/02/2025 – [2025] IEHC 62
Ganley and anor v Cable Network News
Inc. and ors
Defamation law – Joinder order – Statute of limitations – Statute of Limitations 1957, ss.11(2)(c), 11(3B) – Defamation Act 2009, ss.38(1)(a), 38(1)(b) –Appellants seek to join Google Ireland Limited as a defendant in defamation proceedings – 24/02/2025 – [2025] IECA 42
Gilroy and anor v O’Leary and anor Defamation law – Strike out application –Defamation Act 2009, s.17 – Defendant seeks to strike out proceedings as malicious and vexatious – Whether the proceedings disclose no cause of action and are bound to fail – 12/03/2025 –[2025] IEHC 140
Guerin v O’Doherty
Defamation law – Dismissal order –Defamation and malicious falsehood –Defamation Act 2009, ss. 14, 42 –Appellant seeks damages for defamation and malicious falsehood against the Legal Aid Board – Whether the statement in the letter was reasonably capable of being found to have a defamatory meaning –20/02/2025 – [2025] IECA 39
O’Connor v Legal Aid Board and ors Defamation law – Damages – Defamation Act 2009, S.31, 32 – Whether the reviews posted by the first named defendant were defamatory and warranted damages –11/02/2025 – [2025] IEHC 90
Stillorgan Gas Heating and Plumbing Limited v Manning and anor
Articles Barton, B., Justice. Jury, service? Law Society Gazette 2025; Jan/Feb: 31-35
DISCOVERY
Civil procedure – Further and better discovery – Discovery of confidential documents – Tribunal of Inquiry (Evidence) Act 1921, s.1 – Plaintiffs seek further and better discovery of documents from the defendant – Whether the confidentiality of documents provided by the Tribunal outweighs the interests of justice in their disclosure – 27/01/2025 –[2025] IEHC 33
Persona Digital Telephony Limited and anor v Minister for Public Enterprise and ors
Civil procedure – Discovery order –Discovery of documents – Copyright and Related Rights Act 2000, s.208 – Plaintiff seeks court order for defendant to discover documents already exchanged between parties – Whether it is necessary for the defendant to discover documents already in the plaintiff’s possession –27/02/2025 – [2025] IEHC 119
Recorded Artists Actors Performers Ltd v Phonographic Performance (Ireland) Limited and ors
EDUCATION
Education law – Admonishment order –Judicial review – Teaching Council Act
2001, s.2 – Applicant seeks to challenge the disciplinary panel’s decision of poor professional performance and the sanction of admonishment – Whether the applicant’s delay in informing the child’s parents constituted poor professional performance – 14/03/2025 – [2025] IEHC 155
L v Teaching Council
ELECTORAL LAW
Electoral law – Leave to present election petition – Election petition time limit –Electoral Act 1992, s.132 – Electoral Act 1992, s.130 – Applicant seeks leave to present an election petition challenging the Kerry constituency election result –Whether the applicant’s election petition is time barred due to late filing –11/03/2025 – [2025] IEHC 137
Keane v Clerk of The Dáil and ors
EMPLOYMENT LAW
Employment law – Compensation order – Consultation process timing –Protection of Employment Act 1977, s.9 – Appellant seeks to overturn the Labour Court’s decision awarding compensation to the respondent – 07/03/2025 –[2025] IEHC 141
Debenhams Retail Ireland Limited [in liquidation] v Crowe Employment law – Interlocutory injunction – Injunction in aid of statutory claim – Employment Equality Act 1998, s.77 – Workplace Relations Act 2015, s.43 – Plaintiff seeks an injunction requiring re-engagement in accordance with the WRC decision – Whether the plaintiff is entitled to an injunction in aid of his discrimination claim before the Labour Court – 14/02/2025 – [2025] IEHC 79 Ronan v Commissioner of An Garda Síochána and ors
Articles
Kerr, A. The impact of the Supreme Court on the development of labour law in Ireland: revisited. The Irish Jurist 2024; 72: 125-142
McGrath, J. Ten years since The Protected Disclosures Act 2014: a critical review of the enhancements to whistleblowing laws in Ireland. The Irish Jurist 2024; 72: 25-49
EQUALITY
Articles
Hunt, E. Victims of inequality: considering income taxation after the Supreme Court judgment in O’Meara v Minister for Social Protection The Irish Jurist 2024; 72: 110124
EUROPEAN UNION
Public procurement law – Discovery order – Confidential pricing structure –European Union (Award of Public Authority Contracts) Regulations 2016,
s.69 – Applicant seeks disclosure of the winning tenderer’s confidential pricing structure – Whether the confidential pricing structure of the winning tenderer should be disclosed to the losing tenderer – 06/02/2025 – [2025] IEHC 65
Kerrigan Sheanon Newman Unlimited Company v Sustainable Energy Authority of Ireland
Public procurement law – Dismissal of appeal – Lawfulness of ‘one lot rule’ –Directive 2014/24/EU, art.46 – Appellant seeks to overturn the High Court’s decision dismissing its challenge to the RFT – Whether the ‘one lot rule’ was lawful under Article 46(2) of the 2014 Directive – 28/02/2025 – 28/02/2025 Word Perfect Translation Services v The Minister for Public Expenditure and Reform
Library acquisitions
ter Haar, B., Kun, A. EU Collective Labour Law. Northampton: Edward Elgar Publishing Limited, 2022 – W130
EVIDENCE
Insurance law – Exclusion order – Expert testimony admissibility – Plaintiffs seek exclusion of Mr Farmer’s expert testimony – Whether Mr Farmer’s expert testimony should be excluded as inadmissible –25/01/2025 – [2025] IEHC 32
Avolon Aerospace [Hamilton] AOE 1
Limited and ors v Lloyds Insurance Company SA and ors
Articles
Fitzpatrick, E. Modern exclusionary rule in Irish law – rowing back on the fair trial rights of an accused. Irish Law Times 2024; 42 (15): 172-180 [part 1]; Irish Law Times 2024; 42 (16): 181-187 [part 2]
EXTRADITION LAW
Extradition law – Extradition order –Extradition Act 1965, s.29 – Applicant seeks an order committing the respondent to prison to await extradition to the USA – Whether the respondent’s extradition to the USA is justified under the Extradition Act 1965 – 04/02/2025 – [2025] IEHC 100
Attorney General v Lytvynenko
Extradition law – Surrender order –European Arrest Warrant Act 2003, ss. 11, 20 – Criminal Justice Act 2003, s.254 –Applicant seeks surrender of respondent to the United Kingdom – Whether the respondent’s objections to surrender are valid – 12/02/2025 – [2025] IEHC 145
Minister for Justice v Curtin
Extradition law – Surrender order –European Arrest Warrant Act 2003, ss. 22, 23, 24 – Applicant seeks an order for the surrender of the respondent to the United Kingdom – Whether the respondent would face inhuman or degrading treatment if extradited to the United Kingdom – 07/02/2025 –
[2025] IEHC 69
Minister for Justice v Dumitri [AKA Cerban]
Extradition law – Surrender order – Risk of inhuman treatment - European Arrest Warrant Act 2003, ss.16, 37 – Applicant seeks an order directing the surrender of the respondent to Croatia under the European Arrest Warrant – Real or substantial risk of inhuman or degrading treatment contrary to Article 3 of the Convention or Article 4 of the Charter –17/01/2025 – [2025] IEHC 142
Minister for Justice v Prenderville European arrest warrant – Discharge order – Surrender under European arrest warrant – European Arrest Warrant Act 2003, s.20 – Respondent seeks to allow the appeal and discharge the order for surrender – Whether the appeal should be allowed and the order for surrender discharged – 09/06/2023 – [2023]
IECA 142
Minister for Justice and Equality v Siklosi
FAMILY LAW
Family law – Maintenance order –Ongoing maintenance payments –Judicial Separation and Family Law Reform Act 1995, s.8 – Family Law (Divorce) Act 1996, s.5 – Appellant seeks to overturn the decision of the lower court regarding ongoing maintenance payments – Whether the order for ongoing maintenance post 1 April 2026 was justified – 27/01/2025 – [2025]
IECA 9
A. v A.
Family law – Transfer order – Transfer application – Applicant seeks permission to transfer the respondent to a care facility -– Whether granting the relief sought is necessary and a proportionate response by the court to vindicate this vulnerable lady’s fundamental rights –19/02/2025 – [2025] IEHC 115
In the matter of [A.], and in the matter of the inherent jurisdiction of the High Court and in the matter of a transfer application contrary to the view of family Family law – Freezing order – Foreign divorce relief – Family Law Act 1995, ss.23, 35 – Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Act 2020, s.126 – Applicant seeks relief after a foreign divorce to set aside the transfer of shares – Whether the Section 35 order setting aside the transfers should be confirmed – 09/10/2024 – [2024]
IEHC 756
C. v N.
Family law – Adoption order – Adoption Act 2010, ss.40, 53, 54 – Applicants seek an order authorising adoption and dispensing with consent – Whether adoption is proportionate in the circumstances of this case – 03/03/2025 – [2025] IEHC 148
Child and Family Agency and ors v
Adoption Authority of Ireland and ors Family law – Substituted service order –Judicial separation – Judicial Separation and Family Law Reform Act 1989, s.7 –Applicant seeks an order granting leave to issue and serve judicial separation proceedings outside of the jurisdiction on the respondent in China by ‘WeChat’ –Whether the service of documents via ‘WeChat’ and email was sufficient and in accordance with the Circuit Court Rules –17/02/225 – [2025] IEHC 96
J. v H.
Family law – Consent order – Appeal of consent order – Family Law Act 1981, s.5(1) – Family Law Act 1995, s.48 –Applicant seeks to amend the Notice of Appeal to encompass both sets of proceedings – Whether the appeal of a consent order in family law can be reopened on grounds of non-disclosure –07/02/2025 – [2025] IEHC 76
R. v C.
Family law – Interlocutory injunction –Abuse of process – Domestic Violence Act 2018, s.33 – Defendants seek to strike out proceedings for disclosing no reasonable cause of action – Whether the proceedings are doomed to fail and should be struck out – 05/03/2025 –[2025] IEHC 132
R.(A.) v Ireland and anor
Family law – Certiorari order – Bias allegation – Applicant seeks to quash the order lifting the in camera rule and prevent the judge from hearing future applications – Whether the judge showed bias against the applicant in the family law case – 18/02/2025 – [2025] IEHC 92
R.M. v Conneely
Articles
McLoughlin, C. What lies beneath. Law Society Gazette 2025; Mar: 34-37
O’Connell, C. The constitutionality of automatic disclosure of conception status in Irish law. The Irish Jurist 2024; 72: 143169
O’Herlihy, S., O’Shea, R., Dr., McRedmond, P. Sections 16, 17 and 21 of the Mediation Act 2017 and Order 56A
RSC. Irish Journal of Family Law 2024; 24 (4): 65-71
Walsh, K. Family fortunes. Law Society Gazette 2025; Jan/Feb: 22-25
HEALTH
Disability law – Costs order – Assessment of need – Courts of Justice Act 1947, s.16 – Disability Act 2005, ss.7, 8 – Applicant seeks determination on assessment of need under Disability Act 2005 – Whether the assessment of need is complete without diagnostic assessment –10/11/2023 – [2023] IECA 275
A.B. v Health Service Executive and ors Constitutional law – Dismissal order –Mootness of challenge – Health Act 1947, s.31A – Defendants seek an order dismissing the claim on the ground of
mootness – Whether the challenge to Section 31A is moot and whether the proceedings should be dismissed on this basis – 31/01/2025 – [2025] IEHC 45
O’Mahoney v Minister for Health and Ors
HOUSING
Statutory instruments
Rent Pressure Zone (Local Electoral Area of Athlone (Roscommon)) Order 2025 –SI 43/2025
Building Control (Amendment) Regulations 2025 – SI 56/2025
HUMAN RIGHTS
Articles
Egan, S. Yalqinkaya v Turkey: storm clouds brewing in Strasbourg. The Irish Jurist 2024; 72: 181-193
Elliott, A., Chatzigianni, A.A. Migrant judgment a crucial victory. Law Society Gazette 2025; Jan/Feb: 46-47
IMMIGRATION
Immigration law – Certiorari order – Visa application refusal – Constitution of Ireland, Arts.40.1, 40.3, 41 – Respondent seeks to overturn High Court decision granting certiorari – Whether untranslated material could demonstrate communication frequency – 02/02/2024 – [2024] IECA 26
A. v The Minister for Justice Immigration law – Certiorari order –Validity of residence permissions –European Communities (Free Movement of Persons) (No.2) Regulations 2015, Regulation 7, 25 – Applicant seeks judicial review to quash the decision refusing residency under the Scheme – Whether the applicant qualifies for the Scheme despite the marriage being deemed a convenience – 06/03/2025 – [2025] IEHC 135
A.(M.) v Minister for Justice
Immigration law – No order as to costs –Costs for unsuccessful appellants –Immigration Act 2004, s.4 – Legal Services Regulation Act 2015, ss. 168, 169 –Appellants seek a portion of their legal costs despite being unsuccessful –Whether the appellants should be awarded costs despite being unsuccessful – 07/03/2025 – [2025] IESC 9
Chain Wei Wei v Minister for Justice and ors
Immigration law – Order of certiorari –Judicial review – Irish Nationality and Citizenship Act 1956, ss.15, 16 –Applicant seeks an order of certiorari to quash the Minister’s decision refusing her naturalisation application – Whether the Minister’s decision to refuse the applicant’s naturalisation application was lawful – 06/02/2025 – [2025] IEHC 67
D.(D.) v Minister for Justice
Immigration law – Order of certiorari –Lawfulness of UK’s designation as safe third country – International Protection
Act 2015, ss.21, 50A – Appellants seek to overturn High Court’s decision quashing return orders – Whether the appeals were moot due to legislative changes –25/02/2025 – [2025] IECA 43
F.O.M. v The Minister for Justice and ors and K.E. v The International Protection Appeals Tribunal and ors
Immigration law – Order of certiorari –Failure to consider sufficient resources –European Communities (Free Movement of Persons) Regulations 2015, ss. 6, 27 –
Appellants seek to overturn the decision of the Minister for Justice denying the first appellant’s application for a residence card – Whether the Minister failed to adequately consider the claim of the second appellant that she had sufficient resources within the meaning of the European Communities (Free Movement of Persons) Regulations 2015 to entitle her to reside in the State – 17/02/2025 –[2025] IECA 29
I. and anor v The Minister for Justice
Immigration law – Removal and exclusion order – European Communities (Free Movement of Persons) Regulations 2015, ss. 20, 23 – Judicial review – Applicant seeks leave to appeal the refusal of a challenge to a removal and exclusion order – Whether the Minister’s notifications and timeframe for removal were lawful –01/11/2024 – [2024] IEHC 750
K. v Minister for Justice [No.2]
Immigration law – Refusal of relief order – Judicial review – Applicant seeks judicial review of refusal of refugee status –Whether the applicant is entitled to judicial review despite having a statutory appeal to IPAT – 05/02/2025 – [2025]
IEHC 118
M.(M.) v The International Protection Office and ors
Immigration law – Judicial review order –Judicial review – Immigration Act 2004, s.17 – Applicant seeks to quash the decision of the Minister for Justice refusing a long stay ‘D’ employment visa – Whether the Minister’s refusal of the visa application was lawful and followed fair procedures – 19/02/2025 – [2025] IEHC 102
M.(M.) v Minister for Justice
Immigration law – Judicial review order –Judicial review – International Protection Act 2015, s.28 – Applicant seeks to quash the decision denying international protection – Whether the applicant has discharged the burden to secure the relief claimed – 31/01/2025 – [2025] IEHC 51
M.(O.) v International Protection Appeals Tribunal and anor
Immigration law – Certiorari order –Marriage of convenience – European Communities (Free Movement of Persons) Regulations 2015, art.35 – Applicant seeks an order of certiorari and declaratory relief against the respondent’s refusal to allow retention of a residence card –Whether the respondent’s analysis of the
applicant’s case was in accordance with legal principle and fair procedure –27/02/2025 – [2025] IEHC 116
N.(F.) v Minister for Justice International protection law – Judicial review – International Protection Act 2015, s.33 – Applicants seek judicial review of Tribunal’s decision denying international protection – Whether the Tribunal erred in law by failing to show that it gave adequate consideration to any information which P.P. and V.S. provided relating to inadequacy of police protection in Georgia – 04/03/2025 – [2025] IEHC 134
P.(P.) v International Protection Appeals Tribunal and anor, S.(V.) v International Protection Appeals Tribunal and anor Immigration law – Judicial review refusal – International Protection Act 2015, ss.12(1)(b), 46 – Exclusion from subsidiary protection – Applicant seeks to challenge the decision excluding him from subsidiary protection due to a conviction abroad –Whether the decision to exclude the applicant was lawful – 07/02/2025 –[2025] IEHC 88
R. v International Protection Appeals Tribunal and anor Immigration law – Interlocutory order –Bail application – Immigration Act 1999, s.5 – International Protection Act 2015, s.22 – Applicant seeks release on bail from detention pending deportation – Whether the applicant should be granted bail pending the determination of his appeal against the refusal of consent to make a subsequent application for international protection – 05/03/2025 – [2025] IEHC 133
T.(G.) v Minister for Justice and anor Immigration law – Injunction order –Injunction pending appeal – International Protection Act 2015, ss.22, 50 –Immigration Act 1999, s.3 – Applicant seeks an injunction to restrain deportation pending determination of appeal against refusal of consent for subsequent protection application – Whether the applicant has provided sufficiently cogent evidence of risk of harm to him personally were he to be deported to Georgia –14/03/2025 – [2025] IEHC 154
T.(G.) v Minister for Justice and anor [No.2]
Statutory instruments
Immigration Act 2004 (Visas) (Amendment) Order 2025 – SI 68/2025 International Protection Act 2015 (Safe Third Country) Order 2025 – SI 73/2025
INSURANCE
Statutory instruments
Health Insurance Act 1994 (Section 11E(2)) (Amendment) Regulations 2025 – SI 15/2025
JUDICIAL REVIEW
Judicial review – Mandamus order – Costs
in moot proceedings – Social Welfare Consolidation Act 2005, s.311 –Appellants seek costs for judicial review proceedings that became moot – Whether the High Court judge erred in failing to find a causal nexus between the proceedings and the determination of the appeal – 15/07/2024 – [2024] IECA 188 Butler Duignan v Chief Appeals Officer and ors
Judicial review – Declaratory relief –Mootness of proceedings – Non-Fatal Offences Against the Person Act 1997, ss.15, 4 – Appellant seeks declaratory relief that the 2011 Rules are ultra vires and repugnant to the Constitution –Whether the legal issues sought to be determined by the appellant in these proceedings are moot – 17/01/2025 –[2025] IECA 23
Harte v The Superior Courts Rules Committee and ors
Judicial review – Leave to cross-examine – Factual disputes in affidavits – Rules of the Superior Courts, Order 84 – Applicant seeks reliefs by way of judicial review regarding inspections and decisions –Whether leave should be granted for cross-examination or plenary hearing –12/02/2025 – [2025] IEHC 77
Irish Skydiving Club CLG and anor v Irish Aviation Authority DAC
Judicial review – Extension of time –Standing of non-proving executor –Financial Services and Pensions Ombudsman Act 2017, ss.2, 45 –Applicant seeks to challenge the Ombudsman’s determination regarding jurisdiction over a complaint – Whether a non-proving executor has standing to pursue a complaint before the Ombudsman – 12/03/2025 – [2025] IEHC 138
Kiernan v Financial Services and Pensions Ombudsman
JURISPRUDENCE
Articles
Mohit, B. On sovereignty, justice and the global legal order. Irish Law Times 2024; 42 (17): 195-200
LANDLORD AND TENANT
Landlord and tenant law – Possession order – Residential Tenancies Act 2004, ss.16(a)(i), 12(1)(a), 123 – Validity of termination notice – Appellant seeks to overturn the Residential Tenancies Board’s determination that the tenancy was lawfully terminated – Whether the Residential Tenancies Board erred in law in its determination of rent arrears and implied agreements – 04/02/2025 –[2025] IEHC 84
Byrne v Residential Tenancies Board
Property law – Declaration of rights –Rent review clause interpretation –Plaintiff seeks to determine the proper construction of a rent review clause in a
99-year lease – Whether the tenant must pay arrears of rent from the date of cessation of services or from the next Gale Day after the revised rent is ascertained –13/02/2025 – [2025] IEHC 80
O’Brien v Ffrench O’Carroll and anor Residential tenancies law – Preliminary issue order – Extension of time for appeal – Residential Tenancies Act 2004, ss.123(3), 123(8) – Appellant seeks an extension of time to appeal the decision of the Residential Tenancies Board –Whether the appellant issued the subject appeal outside of the 21-day period prescribed by section 123(8) of the 2004 Act and that the time limit prescribed therein is an absolute one – 25/02/2025 – [2025] IEHC 113
Olaszewski v The Residential Tenancies Board
Residential tenancies law – Extension of time order – Procedural fairness –Residential Tenancies Act 2004, s.124 –Appellant seeks an extension of time to file an appeal against the decision of the District Court – Whether the appellant has established an arguable ground of appeal that the District Court erred in law or in fact in not holding that a requirement of procedural fairness was not complied with by the Tribunal – 19/12/2024 – [2024] IEHC 749
Rathdrinagh Land Limited v Donfield
Articles
Hughes, A. Bewley’s belongs to Dubliners … but the landlord owns the windows.
Conveyancing and Property Law Journal 2024; 4: 54-59
LEGAL PROFESSION
Judicial conduct and bias – Recusal order – Objective bias – Judicial Council Act 2019, s.43 – Appellant seeks to disqualify the judge due to his son’s employment in the respondent’s law firm – Whether a judge is disqualified from hearing a case when a close relative is employed in a firm representing a party – 12/02/225 –[2025] IESC 6
Kelly v University College Dublin
Judicial review – Certiorari order –Complaint against legal practitioner –Legal Services Regulation Act 2015, ss.57(1), 57(5) – Appellant seeks an order for certiorari to quash the determination –Whether the appellant had failed to demonstrate an arguable case that the determination was unsound or legally infirm – 31/07/2024 – [2024] IECA 198 Zapryanova v The Legal Services Regulatory Authority
Library acquisitions
Phillipps, K. Get Carman: In Court with George Carman QC, Britain’s Most Feared Lawyer. Hull: Biteback Publishing Ltd., 2024 – B10
Articles Maguire, E. Prevention is better than cure. Law Society Gazette 2025; Mar: 44-47
LIABILITY
Library acquisitions
Karner, E., Messner-Kreuzbauer, D. FaultBased and Strict Liability. Vienna: Jan Sramek Verlag, 2024 – N33.1.E95
MEDICAL LAW
Medical negligence – Modular trial order – Modular trial – Superior Court Rules, O.36 r.9(1) – Defendant seeks a modular trial to determine specific questions of fact before other issues – Whether a modular trial should be directed to determine discrete issues of fact – 05/03/2025 –[2025] IEHC 156 Thompson [a minor] v Health Service Executive
Articles Verbruggen, J. Needle and the damage done. Law Society Gazette 2025; Jan/Feb: 36-41
MENTAL HEALTH
Mental Health Law - Habeas corpus order - Mental Health Act 2001, ss. 9,14Lawfulness of involuntary detentionAppellant seeks to overturn the High Court’s order directing the release of the respondent from involuntary detentionWhether the admission order was lawfully completed in compliance with statutory requirements - 17/02/2025 - [2025]
IECA 30
A(A) v Clinical Director of The Ashlin Centre
Mental health law - Strike out orderConstitutional challenge - Mental Health Act 2001, ss. 57, 73 - Appellants seek to strike out the respondent’s proceedings in their entirety - Whether the respondent’s non-compliance with s.73(1) of the Act of 2001 deprives the High Court of jurisdiction - 06/03/2025 - [2025] IECA 55
C(E) v Ireland and The Attorney General Mental Health Law - Admission orderLawfulness of detention - Mental Health Act 2001, ss.14,15 - Applicant seeks an inquiry into the lawfulness of their detention under the Mental Health Act 2001 - Whether the admission order complied with the legislative requirements - 08/11/2024 - [2024] IEHC 643
G(B) - Clinical Director & Anor
PERSONAL INJURIES
Personal injury law – Assessment of damages – Attribution of symptoms to accident – Civil Liability Act 1961, s.34 –Plaintiff seeks damages for personal injuries from a car accident – Whether the plaintiff’s symptoms are attributable to the accident or pre-existing conditions –20/02/2025 – [2025] IEHC 101 Buckley v Linehan
Personal injury law – Compensation order – Slip and fall – Occupiers Liability Act 1995, s.3 – Plaintiff seeks compensation for injuries sustained from a slip and fall accident at the defendant’s premises –Whether the defendant failed to take reasonable care for the safety of the plaintiff on the night of the accident –04/02/2025 – [2025] IEHC 68
Duddy v Allingham Arms Hotel trading as The Allingham Arms Hotel
Personal injuries law – Assessment of damages – Whether the plaintiff is entitled to recover a loss of earnings claim and the extent of damages to be awarded – 05/02/2025 – [2025] IEHC 95
Leeson v Banqueting Food Systems Limited and anor
Personal injury law – Medical negligence – Plaintiff seeks damages for personal injury allegedly caused by inadequate anaesthesia and monitoring during a medical procedure – 11/02/2025[2025] IEHC 81
Tynan v Bon Secours Health System Company Limited by Guarantee and anor
PENSIONS
Judicial review – Extension of time –Standing of non-proving executor –Financial Services and Pensions Ombudsman Act 2017, ss.2, 45 –Applicant seeks to challenge the Ombudsman’s determination regarding jurisdiction over a complaint – Whether a non-proving executor has standing to pursue a complaint before the Ombudsman – 12/03/2024 – [2025] IEHC 138
Kiernan v Financial Services and Pensions Ombudsman
PLANNING & ENVIRONMENTAL LAW
Planning and environment law – Order of certiorari – Judicial review – Planning and Development Act 2000, ss.50, 50A –Applicants seek an order of certiorari quashing the decision granting retention permission for a wind turbine – Whether the applicants demonstrated any specific illegality warranting certiorari –31/01/2025 – [2025] IEHC 42
100 Meter Tall Group and ors v An Bord Pleanála
Planning and environment law –Mandatory order – Dezoning of land –Planning and Development Act 2000, ss.31, 31AM – Applicant seeks to challenge the dezoning of its site by the Minister and the Office of the Planning Regulator – Whether the reasons for the dezoning decision were adequately identified – 20/02/2025 – [2025] IEHC 109
Ballindooley Developments Limited v Minister for Housing Local Government and Heritage and ors Planning and development law –Certificate application refusal – Certificate
application – Planning and Development Act 2000, s.50A(7) – Applicant seeks a certificate to appeal the decision of An Bord Pleanála granting planning permission – Whether the applicant is entitled to a certificate to appeal the decision of An Bord Pleanála –24/01/2025 - [2025] IEHC 36
Freeney v An Bord Pleanála [No. 2] Environmental law – Order of certiorari –Compliance with climate legislation –Climate Action and Low Carbon Development Act 2015, ss.3(3), 3(4), 3(5), 4(2)(a), 4(2)(b), 4(3) – Applicant seeks to quash the Climate Action Plan 2023 and direct the respondents to adopt a compliant plan – Whether the Climate Action Plan 2023 and Annex of Actions comply with the requirements of the Climate Action and Low Carbon Development Act 2015 – 07/02/2025 –[2025] IEHC 61
Friends of the Irish Environment v The Minister for the Environment, Climate and Communications and ors Planning and environment law – Certiorari order – Certification for appeal – Planning and Development Act 2000, ss.50, 50A, 50B – Respondent seeks certification of two points of law for appeal to the Court of Appeal – Whether it is desirable in the public interest that an appeal should be taken to the Court of Appeal on each point – 31/01/2025 – [2025] IEHC 43
GOCE Limited v An Bord Pleanála
Environmental law – Injunction order –Removal of barge – Canals Act 1986, art.27 – Appellant seeks injunctive relief and damages against the respondent for removal of barge and interference with business – Whether the removal of the appellant’s barge by the respondent was lawful and in accordance with the byelaws – 31/07/2024 – [2024] IECA 210 Hoey v Waterways Ireland
Environmental law – Costs - Planning and Development Act 2000, s.160 –Jurisdiction to grant relief – Applicant seeks an order prohibiting the Environmental Protection Agency from processing a waste licence application –Whether the applicant’s claim against the Environmental Protection Agency had a jurisdictional basis – 04/02/2025 –[2025] IEHC 83
Malone v GCHL and ors
Planning and environment law – Order of certiorari – Standing in environmental cases – Planning and Development Act 2000, ss.50, 50A – Applicant seeks leave to apply for judicial review to quash the decision of An Bord Pleanála – Whether the applicant has standing to challenge the decision of An Bord Pleanála –04/03/2025 – [2025] IEHC 117
Murphy v An Bord Pleanála and anor
Planning and environment law – Order of mandamus – Planning and Development Act 2000, ss.50, 50A, 50B – Planning and Development Act 2000, ss.19(1)(b),
19(1)(c) – Applicant seeks an order of mandamus to compel the respondent to prepare a Local Area Plan – Whether to grant an order of mandamus to compel the respondent to prepare a Local Area Plan – 14/03/2025 – [2025] IEHC 149 Protect East Meath Limited v Meath County Council
Environmental law – Certiorari order –Environmental impact assessment –Planning and Development Act 2000, s.50 – Applicant seeks certiorari quashing two decisions of the first respondent granting planning permissions for proposed developments – Whether the proposed developments required an environmental impact assessment under the Planning and Development Act 2000 – 27/02/2025 – [2025] IEHC 111 Ryan v An Bord Pleanala and ors
PRACTICE AND PROCEDURE
Civil law – Correction order – Judicial review – Courts (Miscellaneous Provisions) Act 1961, s.7A – Applicant seeks to overturn the High Court’s correction of a clerical error in its order –Whether the High Court’s correction of a clerical error in its order was appropriate – 23/01/2025 – [2025] IECA 17
B.(V.) v The Child and Family Agency Civil procedure – Interlocutory injunction – Unqualified legal advisers – Solicitors Act 1954, ss.55, 58 – Plaintiffs seek to set aside the interlocutory order refusing their application for an injunction –11/03/2025 – [2025] IEHC 143
Barrington and anor v Attorney General and ors
Personal injury law – Extension of time order – Special circumstances – Rules of the Superior Courts, O.27 r.15(2) –Plaintiff seeks to overturn the High Court order setting aside the Deputy Master’s order and extending time for discovery –Whether the trial judge erred in granting the orders and in finding that special circumstances existed within the meaning of O.27, r. 15(2) of the Rules of the Superior Courts – 30/01/2025 – [2025]
IECA 14
Bowe v Sheriff and ors
Contempt of court – Contempt order –Judicial authority – Petty Sessions (Ireland) Act 1851, s.9 – Defendant seeks to challenge the judge’s authority to remove disruptive persons from the courtroom – Whether the judge acted unlawfully in issuing a warning to remove disruptive persons from the courtroom –21/01/2025 – [2025] IEHC 39
Board of Management of Wilson’s Hospital School v Burke [No.2]
Landlord and tenant law – Dismissal order – Dismissal of proceedings –Defendant seeks to dismiss the plaintiffs’ claim on account of delay – Whether the balance of justice lies in favour of dismissing the proceedings due to
inordinate and inexcusable delay –30/1/2025 – [2025] IEHC 40
Byrne and anor v Iveagh Trust
Contract law – Summary judgment –Whether the defendant has a fair or reasonable probability of having a real or bona fide defence – 10/02/2025 –[2025] IEHC 97
Cabot Financial [Ireland] Limited v Reynolds
Civil procedure – Dismissal order –Inordinate and inexcusable delay – Rules of the Superior Courts, O.122 r.11 –Defendant seeks dismissal of claim for want of prosecution – Whether the proceedings should be dismissed for inordinate and inexcusable delay –24/01/2025 – [2025] IEHC 6
Charleton and anor v Scriven
Civil procedure – Costs order –Jurisdiction of Circuit Court – Courts Act 1981, ss.17(1), 17(5) – Respondent seeks costs on the High Court scale – Whether the High Court was the appropriate jurisdiction for the proceedings –02/03/2022 – [2022] IECA 50
Condron v Galway Holding Company
Limited and ors
Civil procedure – Recusal order – Recusal application – Treaty on European Union (TEU), Art.19 – Respondent seeks the recusal of the judge from the case –Whether the judge should recuse himself from the case due to being named as a defendant in related proceedings –30/01/2025 – [2025] IEHC 35
Doyle v Houston
Civil procedure – Interlocutory injunction – Extension of time to appeal – Road Traffic Act 1994, s.41 – Applicant seeks to extend the time to appeal the High Court’s decision – Whether the applicant can extend the time to appeal the High Court’s decision – 14/03/2025 – [2025]
IECA 62
Flanagan v Corcoran and ors
Civil procedure – Execution order – Leave to execute costs order – Taxes
Consolidation Act 1997, s.851A –Appellant seeks to prevent execution of costs order – Whether the respondent was entitled to an order granting leave to issue execution in respect of the order for costs – 07/03/2025 – [2025] IECA 58
Gaultier v The Registrar of Companies
Civil liability – Third-party notice – Delay in issuing third-party notice – Civil Liability Act 1961, s.27 – Appellants seek to overturn High Court decision setting aside third-party notice – Whether the third-party notice was issued as soon as reasonably possible – 13/02/2025 –[2025] IECA 41
Harte v Volkswagen Group Ireland Limited and ors
Civil procedure – Amendment order –Amendment of statement of claim –Rules of the Superior Courts, O.28, r.(1) – 29/01/2025 – [2025] IEHC 4
KC Capital Property Group Limited v
Keegan Quarries Limited [No. 2]
Contract law – Order to maintain claim –Pleading sufficiency – Plaintiffs seek an order to maintain their claim for losses set out in the updated particulars of loss dated August 16, 2023 – Whether the plaintiffs are correct in asserting that the existing statement of claim sufficiently pleads the disputed matters identified in the correspondence, such that an amendment to the pleadings is not required – 22/01/2025 – [2025] IEHC 57 Khan and anor v Crosmac Limited and ors Civil procedure – Interlocutory motion –Direct instruction of barrister – Land and Conveyancing Law Reform (Amendment) Act 2013, s.3 – Plaintiff seeks to have a barrister represent him without a solicitor – 04/03/2025 – [2025] IEHC 125
Mallon v Minister for Justice and ors Constitutional law – Dismissal of appeal –Validity of search warrant – Criminal Justice (Miscellaneous Provisions) Act 1997, s.10 – Appellant seeks to overturn the High Court decision dismissing his action against the Garda Commissioner and the State – Whether the Garda Commissioner and the State failed to prove that the search of the appellant’s business premises was carried out pursuant to lawful authority –24/01/2025 – [2025] IECA 10
McGuinness v The Commissioner of An Garda Síochána and anor Environmental law – Strike out order –Compulsory acquisition – Land Clauses Consolidation Act, 1845, ss.69-83 –Appellant seeks to set aside the High Court’s decision to strike out proceedings – Whether the appellant’s claim of compulsory acquisition is bound to fail –11/03/2025 – [2025] IECA 57
McHugh v The Minister for Environment Heritage and Local Government and ors Civil law – Dismissal order – Campaign of harassment – Non-Fatal Offences Against the Person Act 1997, s.10 – Defendant seeks to dismiss the plaintiff’s action for damages related to alleged stalking and harassment – Whether there is a credible basis for the assertion of a campaign of harassment – 14/03/2025 – [2025] IECA 59
Meehan v Ireland
Articles
Gavin, P. Newcomer injunctions: equitable innovation or Constitutional challenge? The Irish Jurist 2024; 72: 50-82
PRISONS
Constitutional law – Judicial review –Effective remedy – Statute of Limitations Act 1957, s.11 – Applicant seeks to quash the decision rejecting his compensation claim and claim damages for breach of his right to an effective remedy – Whether there was an effective remedy available under Irish law prior to Simpson –05/02/2025 – [2025] IEHC 56
O’Brien v Governor of Cork Prison and ors Prison law – Certiorari order – Judicial review – Criminal Justice (Sexual Offences) Act 2017, s.45(1) – Applicant seeks judicial review of his solitary confinement in the CBU – Whether the applicant’s detention in the CBU was lawful and justified – 24/01/2025 –[2025] IEHC 37
P.(S.) v Governor of Mountjoy Prison and anor
Prison law – Costs – Legal Services Regulation Act 2015, ss.168, 169 – Costs in prisoner litigation – Applicant seeks reliefs related to detention conditions –14/02/2025 – [2025] IEHC 107
P.(S.) v Governor of Mountjoy Prison and ors [No. 2]
PROBATE
Library acquisitions
Casey, N., Courtney, P., Heenan, A., O’Connell, A., Stephenson, A. Wills, Probate and Estates (8th ed.). Oxford: Oxford University Press, 2024 – N125.C5
PROPERTY
Property law – Fraudulent conveyance –Land and Conveyancing Law Reform Act 2009, s.43 – Plaintiffs seek to set aside property transfers made by defendants to their daughter – Whether the property transfers were fraudulent conveyances intended to defraud creditors –03/12/2024 – [2024] IEHC 755
AIB Mortgage Bank UC and anor v Burke and ors
Property law – Dismissal order – Validity of receivership appointment –Conveyancing Act 1881, ss.19, 24 –Defendants seek to dismiss the plaintiff’s claim as frivolous and vexatious –Whether the plaintiff pleaded a stateable case against the defendants –12/03/2025 - [2025] IEHC 146
Davey v Wallace and anor
Property law – Statute of Limitations Act 1957, s.33 – Judicial review – Plaintiff seeks leave to amend the initial Statement of Claim regarding the appointment of a receiver over a mortgaged property – Whether the plaintiff’s proposed amendments should be permitted given claims of prejudice due to delay – 28/01/2025 – [2025] IEHC 82
Kelly v Fennell and ors
Property law – Interlocutory injunction order – Authority of receiver to sell –Registration of Title Act 1964, s.62 –Plaintiff seeks costs of the motion and action due to mootness – 04/03/2025 –[2025] IEHC 124
Naughton v Governor and Company of the Bank of Ireland and ors
Property law – Interlocutory injunction –Constitutional challenge to legislation –Family Home Protection Act 1976, s.2 –Appellant seeks a declaration that s.2 of the Family Home Protection Act 1976 is
unconstitutional – Whether the trial judge was correct in refusing the injunction sought – 21/02/2025 –[2025] IECA 40
Ooi v Ireland and ors
Property law – Possession order – Bias allegations – Registration of Title Act 1964, s.62 – Defendants seek to set aside the High Court judgment due to alleged bias – Whether the High Court has jurisdiction to set aside a final order of another High Court judge – 20/02/225 – [2025] IEHC 98
Pepper Finance Corporation [Ireland]
Designated Activity Company v Conway and anor
ROAD TRAFFIC
Personal injury law – Damages award –Contributory negligence – Civil Liability Act 1961, s.34 – Plaintiff seeks compensation for personal injuries and damages from a road traffic collision –Whether both parties were equally at fault for the road traffic collision and the resulting damages – 17/01/2025 –[2025] IEHC 20
Maher v Moriarty and anor
SOCIAL WELFARE
Social welfare law – Certiorari order –Availability of alternative remedies –Social Welfare Consolidation Act 2005, ss.210, 300, 301, 311, 317, 318, 327 –05/03/2025 – [2025] IECA 54
A.(L.) v The Chief Appeals Officer and ors Social welfare law – Leave to apply for judicial review – Judicial review of social welfare decision – Social Welfare Consolidation Act 2005, ss. 186C, 327 –Applicant seeks to set aside a social welfare decision made by the Chief Appeals Officer – Whether the applicant has a right of appeal to the High Court under section 327 of the Social Welfare Consolidation Act 2005 – 28/02/2025 –[2025] IEHC 114
McE. v Chief Appeals Officer and ors
TAXATION
Tax law – Refusal of appeal – Right of appeal under TCA 1997 – Taxes Consolidation Act 1997, ss.811, 955 –Appellant seeks to appeal the refusal of the respondent to allow an appeal against the amended assessment –Whether the appellant had a further right of appeal under ss. 955(3) and 956(2) of the TCA 1997 – 07/03/2025 – [2025] IEHC 122
Falkenthal v Revenue Commissioners Tax law – Repayment order – Statutory interpretation – Emergency Measures in the Public Interest (Covid-19) Act 2020, s.28B – Appellant seeks to overturn the decision of the lower court (denial of EWSS payments) – Whether the Commissioner erred in his interpretation of the ‘specified period’ and ‘corresponding period’ as defined by
section 28B of the Emergency Measures in the Public Interest (Covid-19) Act
2020 – 14/02/2025 – [2025] IEHC 78 Fire Safety Security Advantage Limited [Formerly Superior Group IRL Limited] v Revenue Commissioners
TORT
Occupiers’ liability – Dismissal of claim –Breach of duty of care – Occupiers’ Liability Act 1995, s.3 – Defendant seeks to overturn the High Court’s decision on liability and quantum – Whether the defendant breached its duty of care under s.3 of the Occupiers’ Liability Act 1995 – 27/01/2025 – [2025] IECA 13
Kandaurova v Circle K Ireland Energy Group Limited
Product liability law – Dismissal order –Dismissal of proceedings – Liability for Defective Products Act 1991 –Defendant seeks to dismiss the plaintiff’s proceedings for failing to disclose a reasonable cause of action – Whether the plaintiff has failed to disclose a reasonable cause of action and/or her claim is bound to fail – 04/03/2025 –[2025] IEHC 130
Mulhall v Allergan Limited
Library acquisitions
Karner, E., Steininger, B.C. European Tort Law 2023. London: Sweet & Maxwell, 2024 – N30.E95
Sappideen, C., Vines, P. Fleming’s The Law of Torts (11th ed.). Australia: Thomson Reuters (Professional), 2025 –N30.K1
Winiger, B., Askeland, B., Bargelli, E., Hogg, M., Karner, E. Digest of European Tort Law: Volume 4: Essential Cases on the Limits of Liability. Vienna: De Gruyter, 2024 – N30.E95
TRANSPORT
Articles
Healy, J.C. MARAtime forecast. Law Society Gazette 2025; Mar: 20-25
VULNERABLE ADULTS
Capacity law – Discharge from wardship – Appointment of decision-making representative – Assisted DecisionMaking Capacity Act 2015, ss.8(7), 8(8) – Applicant seeks discharge from wardship – Whether an independent decision-making representative should be appointed – 13/02/2025 – [2025] IEHC 112
In the matter of A, [a ward of court] and in the matter of an application pursuant to Section 55 of the Assisted Decision Making Capacity Act 2015 (as Amended) and In the matter of a dispute concerning the appointment of a DMR Capacity law – Discharge from wardship – Capacity to make decisions – Assisted Decision-Making (Capacity) Act 2015, ss.41(3), 55 – Applicant seeks to discharge the respondent from wardship
and appoint a decision-making representative – Whether the respondent lacks capacity in personal welfare and property decisions without a co-decision maker – 28/01/2025 – [2025] IEHC 54 In the matter of H., [a ward of court] Personal injuries law – Appointment of guardian ad litem – Assisted Decision Making Capacity Act 2015, s.110 –Applicant seeks the appointment of a guardian ad litem for the plaintiff –15/01/2025 – [2025] IEHC 38 M.(A.) v Kiernan
Articles
Walsh, S. Decision theory. Law Society Gazette 2025; Mar: 30-33
Bills initiated in Dáil Éireann during the period January 24, 2025, to March 20, 2025
[pmb]: Private members’ bills are proposals for legislation in Ireland initiated by members of the Dáil or Seanad. Other Bills are initiated by the Government.
Central Bank (Amendment) Bill 2025 –Bill 5/2025 [pmb] – Deputy Catherine Ardagh
Energy Poverty Reduction (Use of Surplus Renewable Energy) Bill 2025 –Bill 6/2025 [pmb] – Deputy Paul McAuliffe
Ministers and Secretaries and Ministerial, Parliamentary, Judicial and Court Offices (Amendment) Bill 2025 – Bill 3/2025 Protection of Tenants’ Deposits Bill 2025 – Bill 4/2025 [pmb] – Deputy Paul Murphy, Deputy Richard Boyd Barrett and Deputy Ruth Coppinger Social Welfare (Bereaved Partner’s Pension) Bill 2025 – Bill 7/2025
Bills initiated in Seanad Éireann during the period January 24, 2025, to March 20, 2025
Arts (Amendment) (Artist Workspaces) Bill 2024 – Bill 101/2024 [pmb] –Senator Fintan Warfield and Senator Paul Gavan
Criminal Procedure (Amendment) Bill 2025 – Bill 2/2025 – Senator Vincent P. Martin – The bill lapsed with the dissolution of the Dáil
Local Government (Support for Elected Members) Bill 2024 – Bill 99/2024 [pmb]
– Senator Frances Black, Senator AliceMary Higgins, Senator Eileen Flynn and Senator Lynn Ruane
Public Procurement (Collective Bargaining and Collective Agreements Criteria) Bill 2024 – Bill 100/2024 [pmb]
– Senator Paul Gavan and Senator Fintan Warfield
Public Health (Antacid Products) Bill 2024 – Bill 98/2024 [pmb] – Senator Vincent P. Martin, Senator Gerard P.
Craughwell, Senator Victor Boyhan and Senator Róisín Garvey Republic of Ireland (Amendment) Bill 2025 – Bill 1/2025 [pmb] – Senator Vincent P. Martin – The bill lapsed with the dissolution of the Dáil
Progress of Bill and Bills amended in Dáil Éireann during the period January 24, 2025, to March 20, 2025 Ministers and Secretaries and Ministerial, Parliamentary, Judicial and Court Offices (Amendment) Bill 2025 – Bill 3/2025 –Committee Stage
Progress of Bill and Bills amended in Seanad Éireann during the period January 24, 2025, to March 20, 2025 Ministers and Secretaries and Ministerial, Parliamentary, Judicial and Court Offices (Amendment) Bill 2025 – Bill 3/2025 –Committee Stage
Statute Law Revision Bill 2024 – Bill 78/2024 – Committee Stage – Report Stage
For up-to-date information please check the following websites:
Supreme Court Determinations –Leave to appeal granted Published on Courts.ie – January 24, 2025, to March 20, 2025
A.M. v The Minister for Enterprise, Trade and Employment and ors [2025] IESCDET 46 – Leave to appeal from the High Court granted on the 18/03/2025 – (O’Malley J., Woulfe J., Murray J.)
Mars Capital Finance Ireland DAC v Samuel Walsh [2025] IESCDET 44 –Leave to appeal from the High Court granted on the 12/03/2025 – (O’Malley J., Murray J., Donnelly J.)
Milbourne Residents Association v An Bord Pleanála and ors [2025] IESCDET 20 – Leave to appeal from the High Court granted on the 11/02/2025 – (Dunne J., Woulfe J., Hogan J.)
The People (at the suit of the Director of Public Prosecutions) v D. T. [2025] IESCDET 14 – Leave to appeal from the Court of Appeal granted on the 04/02/2025 – (Charleton J., Collins J., Donnelly J.)
Smith v Director of Public Prosecutions [2025] IESCDET 30 – Leave to appeal from the High Court granted on the 24/02/2025 – (O’ Malley J., Murray J., Collins J.)
For up-to-date information, please check the courts website: https://www.courts.ie/determinations
A STRUCTURED APPROACH SENTENCING MENTAL ILLNESS TO IN
A recent Court of Appeal judgment offers the potential for greater consistency in the consideration of mental illness in sentencing.
Morgan Shelley BL
This article considers the sentencing of those who have mental illness that falls short of the level necessary for a special verdict of not guilty by reason of insanity (NGRI) or a finding that the accused is not fit to be tried. Such mental illness includes a broad range of different conditions, from severe psychiatric illness verging on an NGRI verdict, to conditions such as attention deficit disorder and Asperger’s syndrome, where it is established that an offender was more naïve, immature, and liable to being taken advantage of by others. The central issue is whether it can be established that the condition had a bearing on the level of culpability, blame and responsibility of an offender for their actions.1
In particular, this article considers the judgment of the Court of Appeal in DPP v M.R., 2 which brought a structured approach and the potential for much greater consistency to mental illness as a factor in sentencing.
General principles
The usual sentencing approach is for a judge to start with a headline sentence that reflects the gravity of the offence, and then apply an appropriate reduction for the personal circumstances of the individual. While mental illness is generally thought of as a source of mitigation, the correct starting point is to consider the extent to which it reduces culpability, and then subsequently consider its weight as a mitigating factor.
It is important to remember that this is not a process by which a judge first sets a headline sentence to reflect aggravating factors and then reduces it by reference to mitigating factors personal to the accused. The headline sentence selected should instead reflect both the gravity of the offence and also the personal culpability of the offender by reference to both aggravating and mitigating factors.
In DPP v F.E. (No 2), 3 Charleton J. summarised this fundamental approach to sentencing as follows:
“The sentencing court starts with the headline sentence which the gravity of the offence, judged in the proper context of the relevant facts and the culpability of the offender, has been determined before considering any mitigating factors”.4
In assessing the culpability of the accused, therefore, one must consider factors that add to or reduce the moral blameworthiness of the accused. In DPP v C., 5 the Court of Criminal Appeal held that:
“The culpability of a person for a particular act will always be considered in the light of the presence or absence of deliberation or malice associated with the act. Calculation and deliberation will aggravate, while inadvertence or accident may mitigate. Where the act has been significantly the result of a psychiatric condition, the moral guilt of the accused may be less, depending on the circumstances”.
In that context, the primary weight of mental illness as a factor in sentencing an individual will often be in reducing culpability in the first phase of sentencing rather than as mitigation in the second phase. That is not to say that the issue of mental illness goes only to culpability and not to mitigation. In DPP v Power, 6 for example, Birmingham J. held that mental health issues could be relevant as mitigation in terms of how a person would cope in prison. Mental illness may also lessen the requirement for a sentencing judge to have regard to sentencing considerations such as punishment and deterrence, and to place more emphasis on rehabilitation. O’Malley writes that retribution and deterrence may have “greatly diminished roles, if any”7 in the sentencing of those with mental illness, relying on the judgment of the Ontario Court of Appeal in R. v Batisse, 8 which noted that specific deterrence may be meaningless to a person detached from reality due to mental illness. The Court held that the primary focus should shift from deterrence to treatment:
“Severe punishment is less appropriate in cases of persons with mental illnesses since it would be disproportionate to the degree of responsibility of the offender. In such circumstances, the primary concern in sentencing shifts from deterrence to treatment as that is the best means of ensuring the protection of the public and that the offending conduct is not repeated”.
A new structured approach
The recent judgment of Edwards J. on behalf of the Court of Appeal in DPP v M.R.9 considered the correct approach to considering mental illness as a factor in sentencing. The Court of Appeal favoured a structured approach with three stages. These three stages were summarised by Ní Raifeartaigh J. in DPP v Taib, 10 as follows:
“(a) the selection of a provisional headline sentence without regard to the mental condition in question;
(b) the adjustment of the provisionally selected headline sentence to take account of a cognitive or mental health issue; and,
This article considers the sentencing of those who have mental illness that falls short of the level necessary for a special verdict of not guilty by reason of insanity (NGRI) or a finding that the accused is not fit to be tried.
(c) arrival at a final post-mitigation sentence by adjusting the headline from (b) for mitigating factors”.
This article will refer to these three stages as the:
The accused in M.R. pleaded guilty to a series of assaults all committed within a short time at Liberty Square, Thurles, Co. Tipperary, and a separate charge of arson. He had a long history of mental health issues, including a longstanding diagnosis of paranoid schizophrenia, alcohol dependence and antisocial personality disorder. He had been on antipsychotic medications for several years. He had been admitted to an acute psychiatric unit on nine occasions in the 18 months before his offending.
The arson had been committed in his residence, a rented property, where ¤16,000 of damage was caused. The accused told Gardaí that he had started the fire because a priest had put words in his head and wanted him to go see the devil. He was not arrested at first and was instead involuntarily admitted under the Mental Health Act 2001, before being admitted to an acute psychiatric unit on a voluntary basis.
The assaults were committed in a spree of offences on a single day the following month. The first of the assaults was committed on an elderly man with mobility issues. The victim suffered a broken shoulder. The accused then assaulted a second man who was riding a mobility scooter, and then a third man.
The accused was sentenced to three-and-a-half years’ imprisonment with oneand-a-half years suspended. The DPP brought an application in the Court of Appeal to challenge this sentence as unduly lenient.
Edwards J. noted that there was little guidance in Irish jurisprudence on how to approach the sentencing of an offender with diminished responsibility due to mental illness. The Court felt that it would be helpful to make some observations in that regard, although it stressed that the judgment should not be treated as a formal guideline judgement.11 The Court of Appeal considered the sentence through the lens of the three-stage process and:
(a) set a provisional headline sentence of five years for the assaults because of the egregious nature of the offending committed against vulnerable victims; (b) reduced this from five to three-and-a-half years to reflect the reduced culpability of the accused due to his mental illness; and, (c) suspended a further one-and-a-half years to take account of other mitigating factors, such as early admissions and an early plea, and the significant personal adversity that the accused faced because of his serious psychiatric illness.12
The original sentence was, therefore, upheld and the undue leniency application was refused.
The provisional headline stage
The Court of Appeal in M.R. envisaged this initial stage as follows:
“In the first instance a sentencing court should determine upon the headline sentence that would otherwise apply but for the existence of the mental condition in question. This should be done in the normal way by considering in the context of the range of penalties provided for by the legislature: (i) the intrinsic culpability associated with the type of offending that was committed; (ii) the extent to which that intrinsic culpability may have been aggravated, or mitigated, by factors bearing on culpability (excluding the mental condition in question); and, (iii) the harm done”.13
An initial decision should be made as to whether the custody threshold has been passed; if so, an appropriate provisional headline sentence should be selected:
“As in all cases a provisional decision needs to be taken at this point concerning whether the custody threshold has been passed, bearing in mind the parsimony principle, and following a consideration of which of the commonly recognised objectives of sentencing (retribution, deterrence, incapacitation (to the extent permitted by law), restitution, and reform/rehabilitation) ought to be prioritised in the structuring of the sentence in such a case. If the custody threshold has been passed, the case should be located at an appropriate point on the available range of custodial penalties based on the court’s provisional assessment of culpability and harm done”.14
Mental illness may also lessen the requirement for a sentencing judge to have regard to sentencing considerations such as punishment and deterrence, and to place more emphasis on rehabilitation.
The adjustment stage
This is the stage at which the court considers whether the culpability of the accused has been reduced by their mental illness and, if so, the extent to which that should be reflected in an appropriate downwards adjustment in the provisional headline sentence.
Edwards J. held that a sentencing court will be concerned with “determining the extent to which the offending may have been attributable to the condition in question; or whether the offender’s responsibility for his/her offending conduct was ‘diminished’ by the condition in question, but not wholly extinguished”.15
Ní Raifeartaigh J. described this second stage as follows in Taib:16
“With regard to the second stage, he [Mr Justice Edwards in M.R. ] said that the sentencing judge should consider to what extent there may need to be an adjustment to culpability as provisionally assessed in stage (a) in order to arrive at the headline sentence in the particular case. The judge would have to carefully examine the extent to which culpability was diminished by the mental condition. This assessment might be complicated by the overlay of additional factors, such as self-induced intoxication or a failure to take prescribed medication. In those cases, the judge should consider the extent to which the offender had an awareness of the dangers associated with becoming intoxicated in his/her situation and/or failing to take prescribed medication”.
On the latter issue, the Court accepted in Taib that the appellant would not have known that he was more vulnerable to the effects of drug-taking in the absence of a diagnosis for his mental illness.
In M.R., the Court of Appeal similarly held that failure to take prescribed medication will not necessarily be a culpable omission, because noncompliance with medication may be attributable in whole or in part to the
offender’s mental illness.17 The Court of Appeal emphasised in both M.R. and Taib18 that the burden was on an accused to put forward at least prima facie evidence, including expert opinion:
i. that they were suffering from mental illness at the time of the offence; ii. that there was a link between the mental illness and the offending behaviour; and, iii. the extent to which the mental illness caused or contributed to the offending behaviour.
Equally, the prosecution must adduce relevant evidence, including expert evidence if required, to establish any counter-contention that the accused’s culpability was not in fact diminished to the extent claimed.19 Ní Raifeartaigh J. summarised the position as follows in Taib:
“It is difficult in some cases to quantify the degree to which the offender’s mental disorder contributed to the offending behaviour. As Edwards J. pointed out in M.R., the burden of proof lies on the appellant to adduce proof of the link: ‘The primary responsibility for adducing required evidence will always rest on the party asserting the proposition in controversy. Thus, it will be for the accused who seeks to establish either absence of culpability or diminished culpability to produce prima facie evidence, including expert opinion evidence, at his/her sentencing in support of that contention”.
This comment applies not merely to proving the existence of the mental disorder but also to proving the extent to which the disorder caused or contributed to the offending”.20
The Court of Appeal was critical of the failure of the professional reports in the Taib case to engage more precisely with the extent of the causal link between the appellant’s likely psychological state at the time and his brutal treatment of his victim. A reduction of only 20% was held to be proportionate in the absence of more specific links being established between the appellant’s violent behaviour and his mental illness.
While a sentencing judge must consider all relevant expert evidence, they are not bound by it, and the court must reach its own decision as to the degree of the offender’s culpability.21 Having conducted that assessment, the sentencing judge must decide whether the custody threshold has still been met. If a custodial sentence is still warranted, a shorter period in custody than would otherwise have been imposed may be nominated. The court should also consider whether there is an increased need to structure a sentence in a way that may assist the offender in accessing treatment; while the court cannot direct treatment, it can set appropriate terms for the suspension or partsuspension of a sentence.22
The mitigation stage
At this stage, the adjusted sentence is then reduced to reflect any relevant mitigating factors and personal circumstances not considered in the previous stages. This may include a consideration of mental illness as a source of mitigation (as opposed to reducing culpability), for example the additional hardship an accused may suffer in prison because of their mental illness. Ní Raifeartaigh J. held as follows in Taib:
“At the third stage in addition to the usual mitigating factors, account should also be taken of whether it may be more onerous for such a person to have to spend time in custody because of their mental impairment or disorder or whether it might actually worsen the person’s mental condition”.23
In M.R., Edwards J. noted that, if a suspended or part-suspended sentence is being imposed, it may be desirable to impose case-specific conditions as to engagement and co-operation with psychiatric services and/or the Probation Service guided by recommendations in relevant reports. This reflects the long-standing practice whereby a sentencing court should specifically consider whether rehabilitation can be facilitated by non-custodial sentencing options or at least a lesser sentence.24
Application in practice
The sentence that was the subject of the severity appeal in Taib provides a good example of the principles of M.R. being applied in practice. The appellant pleaded guilty to charges on two separate indictments, the first for coercive control and a number of assaults over a four-month period, and the second for driving offences that were described as extremely serious.
The appellant was, subsequent to his offending, diagnosed with paranoid schizophrenia complicated by cannabis abuse, characterised by symptoms such as persecutory delusional beliefs, delusions of thought control, and auditory hallucinations. The timing of his diagnosis meant that the sentencing court could not be clear exactly when his mental illness first presented, but there appeared to be similarities (albeit less pronounced) during his offending to symptoms with which he subsequently presented when diagnosed with paranoid schizophrenia. The Circuit Court judge considered M.R. and applied the three-stage process as follows:
(a) provisional headline sentences of five years for the coercive control offences and four years for the driving offences;
(b) reductions of one year in each provisional headline sentence to reflect the appellant’s diagnosis (to four years and three years, respectively); and,
(c) taking into account mitigating factors, including the possibility that his mental illness might make imprisonment more onerous, the sentences were further reduced to three years and two years, three months, respectively.
The Circuit Court judge considered the offences to be sufficiently serious to warrant consecutive sentences but applied a three-month reduction to the second sentence to reflect the totality principle. To encourage the appellant to remain on his medication and comply with medical advice, the sentencing judge suspended the final 12 months of the overall sentence for a period of two years. Conditions of the suspension were tailored to ensure that the Probation Service could monitor his ongoing compliance with mental health treatment.
The judgment of the Court of Appeal in Taib emphasised the importance of relevant reports seeking to establish the extent to which there was a causal link between a person’s mental illness and their offending. The Court held that the sentencing judge’s initial identification of a five-year notional headline sentence for the coercive control offences, reduced by 20% to four years, could not be said to be unfair or disproportionate, particularly in the absence of more specific links between the violent behaviour and his mental illness being made by the experts. Similarly, the sentence for what were extremely serious driving offences was not disproportionate. The appeal against the severity of the sentence was therefore dismissed.
Conclusion
Edwards J. set out a three-stage structure in DPP v M.R.25 for the sentencing of those whose culpability may have been affected by mental illness:
(a) the selection of a provisional headline sentence without regard to the mental condition in question;
(b) the adjustment of the provisional headline sentence to take account of any cognitive or mental health issue; and,
References
1. O’Malley T. Sentencing Law and Practice (3rd ed.), 2016, paragraph 6-21; DPP v Sweeney, Court of Criminal Appeal, unreported, March 12, 2008
2. [2022] IECA 192.
3. [2020] IESC 5.
4. Paragraph 23.
5. [2013] IECCA 91, paragraph 39.
6. [2014] IECA 37.
7. O’Malley T. Sentencing Law and Practice (3rd ed.), 2016, paragraph 6-18.
(c) arrival at a final post-mitigation sentence by adjusting the headline from (b) for mitigating factors.
Some key points arising from the case law:
(a) The burden is on an accused who claims that their culpability was reduced by mental illness to put forward at least prima facie evidence, including expert opinion, to establish not just that they suffered from mental illness, but that there is a link between that mental illness and their offending.
(b) This evidence should, if possible, include a professional assessment of the extent to which mental illness contributed to the offending behaviour.
(c) The prosecution may adduce relevant evidence, including such expert evidence as may be required, to establish any countercontention that the accused’s culpability was not in fact diminished to the extent claimed.
(d) Mental illness will primarily be a reason to reduce the culpability of an offender, rather than a source of mitigation, but mitigation may be found in factors such as how the accused’s mental illness might make their time in custody more difficult.
(e) Courts should now follow the three-stage approach set out by the Court of Appeal in M.R., and should take care at each of those three stages to consider whether the custody threshold has been met.
(f) There is a considerable onus on sentencing courts to carefully consider the issue of rehabilitation, and to ensure that suspended and partsuspended sentences are structured to encourage compliance with psychiatric treatment and medication.
13. Paragraph 97.
14. Paragraph 97.
15. Paragraph 97.
16. At paragraph 46.
17. Paragraph 97.
18. Paragraph 51.
19. M.R. paragraph 97.
20. Paragraph 46.
21. M.R. paragraph 97.
22. M.R. paragraph 97.
23. Paragraph 46.
24. DPP v C.W. [1994] 1 I.L.R.M. 321.
25. [2022] IECA 192.
ON BUSINESS AS USUAL CLIMATE NO MORE
This article gives an overview of the recent High Court decision in Coolglass Wind Farm Limited v An Bord Pleanála.
In the first judgment delivered by the High Court in 2025, Humphreys J. laid down a marker to relevant statutory bodies that “business can no longer continue as usual” in the face of climate emergency and the imminent dangers facing human life on this planet. In doing so, Humphreys J. provided a comprehensive analysis of the interpretation of s.15(1) of the Climate Action and Low Carbon Development Act 2015 (the 2015 Act), as amended by the Climate Action and Low Carbon Development Act 2021 (the 2021 Act). This article provides an overview of the key aspects of the judgment.1
Background
This case concerned a challenge to a decision of An Bord Pleanála (the Board) to refuse permission for the development of a 13turbine windfarm and associated works across various townlands in Co. Laois (the proposed windfarm). The reasons and consideration set out in the Board’s order2 noted that the Laois County Development Plan 2021-2027 (the Development Plan) generally supported wind energy development, but concluded that permission for the proposed windfarm ought to be refused on the basis that it would materially contravene Objective CM RE 7 of the Development Plan and Policy Objective WE of the Laois County Wind Energy Strategy (the Board’s decision). By way of judicial review, the proposed windfarm developer (the applicant) sought an order of certiorari quashing the Board’s
In the first judgment delivered by the High Court in 2025, Humphreys J. laid down a marker to relevant statutory bodies that “business can no longer continue as usual” in the face of climate emergency and the imminent dangers facing human life on this planet.
decision to refuse permission and, inter alia, a declaration that the Board, in failing to grant permission to planning applications aimed at meeting Ireland’s 2030 renewable energy targets in the Climate Action Plan 2024, failed to comply with its obligations under s.15 of the 2021 Act. The applicant advanced seven core grounds of challenge against the Board, and the State, in respect of these alleged failures.
The Court’s decision
While the most fundamental aspect of the decision in Coolglass (and that which is of most legal significance) is in respect of the interpretation of s.15(1) of the 2021 Act, the Court decided to quash the Board’s decision primarily on the basis of two, fact-specific grounds, namely, Core Ground 3 and Core Ground 4. The Court’s treatment of these core grounds, dealt with in reverse order, is worthy of some brief discussion for the purpose of providing context for the rest of the judgment.
In summary, Core Ground 4 alleged that the Board erred in its consideration of whether to grant permission for the proposed windfarm, notwithstanding its view that it materially contravened the Development Plan, by referencing the provisions of s.37(2) of the Planning and Development Act 2000 (the 2000 Act) rather than s.37G of the 2000 Act as required in circumstances where the Board had identified that the proposed windfarm was a strategic infrastructure development (which it had done in the case of the proposed windfarm).
The Court found that the reference to the wrong section in the Board’s order was more than a mere technicality. Humphreys J. considered it “confounding” that the Board’s inspector had made reference to an appeal in its analysis of the proposed windfarm application, and that the Board had not picked up on the error. The Court held that the difference between s.37(2) and s.37G of the 2000 Act was fundamental in this case, as the wording of s.37G is “significantly more permissive” than that provided in s.37(2). As such, in relying on the incorrect provision, the inspector’s assessment of the proposed
Gemma Hayes BL
windfarm was with reference to the wrong test and therefore the Board had regard to an irrelevant consideration.
The second ground upon which the Court decided to quash the Board’s decision was that at Core Ground 3, which alleged that the Board abrogated it obligations pursuant to s.15 of the 2021 Act to the Office of the Planning Regulator (OPR) and/or Minister for Housing, Local Government and Heritage by failing to consider its own obligations arising out of s.15 of the 2021 Act. In doing so, the applicant alleged, the Board fettered its own discretion and had regard to irrelevant considerations.
In assessing the applicant’s claims, the Court examined the reasons and considerations offered in the Board’s order. In particular, the Court addressed “Note 2” of the Board’s decision, which provided that in deciding to refuse permission the Board noted that Laois County Council’s Wind Energy Strategy was subject to oversight from the OPR and subsequent Ministerial direction, and the areas designated as not open for consideration for wind development remained unaltered in the final confirmed and adopted Development Plan. The Court acknowledged that where legally binding renewable energy targets are not being met, attempts by a planning authority to preclude or limit renewable energy infrastructure can generally be regarded as unlawfully inconsistent with European Union (EU), European Convention on Human Rights (ECHR) and national law and policy. However, the fact that the OPR or Minister failed to take any action to address the inconsistency identified by the Board does not make the refusal of the proposed windfarm application consistent with climate goals, when that would not otherwise be the case. Humprehys J. found that the fact that the OPR and the Minister did not seek to amend a plan “relates to a different test under a different statutory provision”; accordingly, it is not a relevant consideration in the assessment of the proposed windfarm application and as such the Board’s decision must be quashed.
Judicial commentary on Section 15
Having determined that the matter ought to be quashed and remitted to the Board, Humphreys J. noted that he had given much consideration to whether it was appropriate to stop there or whether there was a need to consider the other grounds of challenge advanced by the applicant. In the circumstances of this case, he felt that it was appropriate to consider the other core grounds, in particular Core Ground 1, at which the applicant asserted that the Board failed to comply with its obligations pursuant to s.15(1) of the 2021 Act. It therefore appears that the Court’s comments on the interpretation of s.15(1) are more than obiter dicta
In considering how s.15(1) of the 2021 Act ought to be interpreted, Humphreys J. began by considering the language of the provision, and more particularly, the differences between the wording of s.15(1) as provided in the
2015 Act and that contained in the subsequently amended 2021 Act. S.15(1) of the 2015 Act provided:
“A relevant body shall, in the performance of its functions, have regard to:
(a) the most recent approved national mitigation plan,
(b) the most recent approved national adaptation framework and approved sectoral adaptation plans,
(c) the furtherance of the national transition objective, and
(d) the objective of mitigating greenhouse gas emissions and adapting to the effects of climate change in the State”.3
By contrast, s.15(1) as amended by the 2021 Act provides:
“A relevant body shall, in so far as practicable, perform its functions in a manner consistent with:
(a) the most recent approved climate action plan,
(b) the most recent approved national long-term climate action strategy,
(c) the most recent approved national adaptation framework and approved sectoral adaptation plans,
(d) the furtherance of the national climate objective, and
(e) the objective of mitigating greenhouse gas emissions and adapting to the effects of climate change in the State”.4
It was this change from the “have regard to” standard in the 2015 Act, to the requirement on a public body to “perform its functions in a manner consistent with” contained in the 2021 Act that was the key factor in Humphreys J.’s analysis and the obligations he held to exist on public bodies. He found that, on its face, s.15(1) requires the Board to have more than the previous standard of having mere regard to the various plans and policies set out therein, but rather required the Board to comply with those said plans and policies so far as is practicable: a significantly more onerous obligation on the Board than that contained in the 2015 Act.
Humphreys J. then moved to consider the context of s.15(1) of the 2021 Act, in respect of which the Court made three observations:
(a) S.15(1) of the 2021 Act significantly strengthened the previous wording of the section. Such a change is a fundamental restatement of the obligation, which cannot be minimised or interpreted as an inadvertent wording.
(b) The subsequent provisions of s.15, whereby the Minister can give notice to a body requiring it to prepare a report demonstrating compliance cannot
be constructed as a self-contained mechanism to enforce the law which renders it wholly or partly non-justiciable.
(c) Any suggested narrow reading of s.15 must be “reality checked” against the 2021 Act as a whole, which provides sweeping obligations across the public sector to implement rapid, far-reaching and unprecedented changes to all aspects of society and the economy.
Accordingly, with reference to the wider context of the 2021 Act, it is appropriate to interpret the obligation contained in s.15(1) as stringently as the plain reading provides.
Humphreys J. next turned to consider the purpose of s.15(1) of the 2015 Act, setting the tone for his analysis with the opening statement “the climate emergency represents a critical risk to human and other natural life on earth”. After citing the United Nations Intergovernmental Panel on Climate Change, the Court noted that interpreting s.15(1) as having “a legislative purpose to facilitate radical and far-reaching action is consistent with” the need for deep and immediate cuts in greenhouse gas emissions to meet essential climate targets in the interests of preserving the state of the earth as a liveable habitat for life, and that new approaches were required to achieve such cuts. The Judge observed that the applicant’s case “throws down the gauntlet” as to whether statements made by the Irish Government in and about the passing of the 2021 amendments amounts to empty rhetoric when the Board – as an arm of the State – apparently “recoils in horror from the logical implication” that an immediate end to “business as usual” is required for planetary survival. The judgment cites extensively the applicant’s submissions on the developments in the law in relation to climate change obligations since 2021, in particular the decision of the European Court of Human rights (ECtHR) in KlimaSeniorinnen v Switzerland. The wider context in which the 2021 Act was enacted, Humphreys J. concluded, supported a purposive interpretation of s.15(1) in line with its plain wording and meaning. Any other interpretation, he found, would result in a failure to achieve the statutory purpose of the Act.
Broader analysis
Humphreys J. then moved on to a broader analysis of s.15(1) of the 2021 Act to consider whether the provision conformed with EU law obligations, more particularly the obligation of sincere co-operation provided by Art.4(3) of the Treaty of the European Union (TEU). This was a separate ground of challenge advanced by the applicant at Core Ground 7, but which the Court addressed in the context of Core Ground 1 and the s.15(1) interpretation.
Having regard to the duty of sincere co-operation, Humphreys J. returned to the wording of s.15(1) of the 2021 Act and noted that an interpretation that allowed the Board merely to have regard to climate goals, rather than an obligation to comply with such goals insofar as practicable, risked
attainment of binding EU law obligations on climate change and thus was contrary to the duty of sincere co-operation between member states. S.15(1) therefore must be interpreted, insofar as is possible, in a manner that ensures that Ireland’s EU climate obligations will be met. Such an interpretation is consistent with the plain meaning of s.15(1) of the 2021 Act, rather than one of “have regard to”.
Finally, on the matter of interpretation, Humphreys J .considered whether s.15(1) of the 2021 Act complies with obligations arising out of the ECHR and developing ECtHR jurisprudence. With reference to the KlimaSeniorinnen decision, the Court accepted the argument advanced by the applicant that Art.8 of the ECHR imposes a positive obligation on states to put in place legislative frameworks that provide effective protection of human life from climate change, and to apply such frameworks effectively and in a timely manner. In a damning finding, the Court held that while Ireland had such a framework in place, that in practice it was not being complied with.5
Any interpretation of s.15(1) of the 2021 Act that allows climate targets to fall away due to a failure on the part of the Board to exercise discretionary powers to override development plans, the Court held, would be an interpretation that fails to conform with ECHR obligations and is contrary to s.2 of the European Convention on Human Rights Act 2003. Therefore, a plain reading interpretation of s.15(1) of the 2021 Act ensures that ECHR obligations are complied with, including targets for renewable energy infrastructure.
Having considered the various aspects of the interpretation of s.15(1) of the 2021 Act, Humphreys J. concluded that all of the “vectors of interpretation point strongly in the same direction” that s.15(1) must be afforded “an imperative reading […] in line with what it says, namely that the Board and any other relevant body is required to act in conformity with the climate plans and objectives set out in the subsection unless it is impracticable to do so”. Accordingly, the Court found that there is an obligation on the Board6 to act in a manner consistent with the climate plans and polices set out in s.15(1), insofar as it is practicable to do so. This, Humphreys J. held, means exercising discretionary and evaluative powers in whatever way is most likely to be consistent with these relevant plans and policies. Helpfully, Humphreys J. set out a guide for the Board as to how it ought to proceed in future when faced with a decision concerning s.15(1) of the 2021 Act:
“(i) The Board must ask itself what substantive disposition of the matter that is practicably available would contribute to achieving the s.15 goals. In the case of renewable energy projects, the answer to that will almost always be a grant of permission […] It is not an answer that the permitting of any one project won’t achieve climate goals on its own. That is the drop-in-the-ocean fallacy that is rejected globally, and would obviously strangle the effort to address climate change at the starting line.
(ii) The Board should then ask whether the substantive disposition of the matter in a way that furthers climate goals is precluded by a mandatory and non-fixable legal requirement that confers no discretion or evaluative judgement on the decision-maker. If so, the project has to be refused no matter how climate-friendly it is.
(iii) If the answer to that is No, the Board should then ask if its discretion or evaluative judgement can be exercised in such a way as to support the outcome favouring climate goals […]”.
In applying the interpretation of s.15(1) to the case before him, Humphreys J. noted that neither the Board nor the State had attempted to explain how the refusal of the proposed windfarm was consistent with its climate obligations. The judgment levelled significant criticism at the Board, and its inspector, for its failure to even make reference to s.15(1) in its assessment of the proposed windfarm. In particular, the Court was unimpressed with the proposition advanced by the Board’s inspector that the response to the climate emergency must be realised in a manner that respects local landscape sensitivities and planning policies. The Court found the opposite argument – that visual impacts are subordinate to tackling the climate emergency – more compelling. Of this Humphreys J. said: “The fact that if the climate emergency is not addressed, far worse impacts, chaotic and unplanned, will happen on landscapes here and everywhere, just vanishes from sight […]”. For these reasons, the Court held that the Board’s decision must be quashed on Core Ground 1 also.
Conclusion
The decision in Coolglass provides a comprehensive determination of the manner in which s.15(1) of the 2021 Act ought to be interpreted. It is clear that the Board and all public bodies must perform their functions in a manner consistent with the plans and policies set out in s.15(1), insofar as it is practicable, and that any interpretation that falls short would result in a failure by Ireland to realise its climate change obligations and targets. This is a significant obligation that affects more than how the Board decides cases: “It affects how it trains its inspectors and board members in climate law and science, and how it internally allocates work so that only duly trained people who understand climate issues at a deep level should be allowed near projects to which those issues are relevant”. The obligation to comply is far reaching
References
1. At the time of writing, the Board has sought to have the judgment reopened. Accordingly, it ought to be borne in mind that aspects of this decision are subject to change/amendment. It is also unclear whether the judgment will be the subject of an appeal.
2. Dated August 23, 2024.
3. Emphasis added.
In applying the interpretation of s.15(1) to the case before him, Humphreys J. noted that neither the Board nor the State had attempted to explain how the refusal of the proposed windfarm was consistent with its climate obligations.
and will likely require all relevant public bodies to consider how they are performing their functions in accordance with s.15.
Despite the stringent obligations identified by the Court, that the Board must perform its functions in a manner consistent with s.15(1) of the 2021 Act, there is one aspect to this judgment that perhaps causes it to fall short of making international headlines for judicial radicalism in tackling the climate crisis. That is, the global view taken by the Judge that s.15(1) does not mandate a refusal of a project that would generate emissions or have a negative effect on the climate effort.7 This is because of what Humphreys J. identified as “displacement effects”. Emissions must be looked at globally and not just in the context of a national boundary. Ireland’s regulatory framework may be better equipped to regulate a particular project, thus resulting in fewer negative environmental impacts than if the project were to be refused and as a result built elsewhere in the absence of such regulation.
What remains unclear from the judgment (and that lawyers and climate activists alike will seek to explore the contours of) are the types of projects that may be refused, and the reasons for those refusals, that the Court will not overturn for reason of s.15(1) of the 2021 Act. It may be that greater habitat or biodiversity concerns than those of energy security and/or emissions (to be weighed and evaluated by the Board) are the only valid grounds upon which a renewable energy project can be refused or challenged.
4. Emphasis added.
5. See paragraph 110.
6. And other relevant bodies who are defined in s.15(5) as: (a) a prescribed public body; and, (b) a public body.
7. See paragraph 131.
IN THE EMERGING BARRIERS PROTECTION PROCESS INTERNATIONAL
Perceived barriers to applications for international protection may arise from the manner of deployment of policies, rather than from the policies themselves.
Noeleen
Healy BL
Aconfluence of factors has led to a sharp increase in international protection applications in Europe over the past decade. Last year, the International Crisis Group noted that conflicts have been on the rise globally since 2012, having declined in the 1990s.1 Increased applicant numbers have led to a hardening of attitudes across Europe and a political shift in approaches towards migration. Very recently, Ireland has seen significantly increased numbers of applicants.2
Elements of the EU Migration Pact, which appear to create barriers to claiming international protection, have received attention over the past year.3 Equally, it is important to examine the issues that are already part of our national laws and procedures.
The first significant issue that has emerged is an attempt to discourage potential applicants from arriving, by increased deployment of the criminal justice machinery against those who arrive without documents or using false documentation. The second is the acceleration of
procedures. Some might categorise the aforementioned as “barriers” to international protection; however, each of these factors in and of themselves are not barriers. The criminal law should generally be deployed against those who act contrary to it. Accelerating procedures is a welcome step for the majority of applicants who had previously been left languishing, awaiting determination on their claims, which was particularly the case under the procedures that preceded the commencement of the International Protection Act 2015. The criticism – or “barrier” as it could be described – arises from the manner of deployment as opposed to the policy itself.
Initial entry: deterrents to claiming international protection
The State has an inherent right to control the entry of non-nationals, their departure, and their activities and duration of stay within the State.4 Equally, there is a right to claim asylum, which is explicitly provided for by way of article 18 of the EU Charter of Fundamental Rights. The principle of non-refoulement is non-derogable.
Under the current legislative scheme, an application for international protection can be made either at the border or from inside the State. Section 15 of the International Protection Act 2015 (the 2015 Act), provides, inter alia, that: “a person […] who is at the frontier of the State or who is in the State (whether lawfully or unlawfully) may make an application for international protection”. Other than ‘programme refugees’ provided for by way of section 59 of the 2015 Act, applications for protection are made from within the State or at the border. Potential applicants must reach the country to make their claim. Some may have other lawful reasons for arrival and entry into the State. They may be non-visa required. They may already be residing in Ireland on the basis of an alternative permission.5 The majority of applicants do not have a lawful means of reaching or entering the state to claim international protection.
Insofar as the Migration Pact is concerned, nothing will change in respect of applicants being required to claim protection at the border or inside the State. Recital 8 of Regulation (EU)
2024/1348 establishing a common procedure for international protection (the Asylum Procedures Regulation 2024) provides:
“This Regulation should apply to all applications for international protection made in the territory of the Member States, including those made at the external border, on the territorial sea or in the transit zones of Member States, and to the withdrawal of international protection. Persons seeking international protection who are present on the territorial sea of a Member State should be disembarked on land and have their applications examined in accordance with this Regulation”.
Section 15 of the 2015 Act largely mirrors that of the now-repealed section 8 of the Refugee Act 1996 (as amended). Potential applicants are required to reach the frontiers of the State or already be present in the State.
Documentation
In February 2023, it was reported6 that Gardaí were travelling to international airports outside the State to perform document checks in advance of persons boarding the flights to Ireland. In a similar vein, s.2 of the Immigration Act 2003 (the 2003 Act) provides for ‘liability of carriers’. It relates to the liability of airlines/vessels that arrive in the State with passengers who fail to produce a valid passport, and visa if necessary. On conviction, carriers are liable to be fined up to ¤3,000. Section 3 of the 2003 Act provides that, where an immigration officer has reasonable grounds to suspect that the carrier has committed the s.2 offence, a notice will issue providing the carrier with 28 days within which to pay ¤1,500. If the payment is made, no prosecution shall be brought.
The Courts, Civil Law, Criminal Law and Superannuation (Miscellaneous Provisions) Act 2024 increases fines upon conviction under s.2 from ¤3,000 to a ‘class A’7 fine8 and increases the fixed penalty under s.3 from ¤1,500 to ¤2,500.9 In announcing the proposed amendments, the Minister stated:
“This is just one element of the reforms I am introducing to deter irregular migration and maintain the integrity of our immigration system”.10
Invariably, those arriving in Ireland without the appropriate identity documents will often be international protection applicants.11
Interestingly, in announcing the commencement of the relevant provision, the Minister also set out the annual carrier liability receipts. Although there was somewhat of an increase in 2023 to ¤1,476,000 from ¤1,102,500 in 2022, the 2019 figure of ¤1,003,470, does not indicate a marked difference.12 In fact, Minister McEntee has stated that:
“Last year saw a reduction of one-third in the number of persons arriving at Dublin Airport without the correct documentation. The numbers arriving
without the correct documentation for 2024 are on course to approximately be 50% of that in 2022”.12
There does not appear to be publicly available figures on the numbers of convictions under s.2 as against carriers.
The number of prosecutions brought against individuals has reportedly seen a sharp increase in 2024. Section 11 of the Immigration Act 2004 provides that it is an offence to fail to produce a valid passport or equivalent upon entry to the State. From 2019 to the end of 2023, there was one prosecution for such an offence.13
On August 2024, Minister McEntee stated:
“An Garda Síochána have arrested 115 people in the first half of 2024 for arriving without appropriate documentation and a significant number have been convicted”.12
These cases have been widely reported in the media. Nationals of countries such as Sudan14 and Eritrea15 have been convicted this year.
Defences based on international conventions and guidance
The legislation does not create a strict liability offence. The defence of ‘reasonable cause’ is available. Article 31(1) of the 1951 Convention relating to the Status of Refugees provides:
“The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence”.
Deterrents, such as criminal penalty for entry into the State without valid travel documents, were envisaged and addressed, in certain circumstances, by the Refugee Convention drafters.
In R v Uxbridge Magistrates Court, ex parte Adimi [1999] Imm AR 560, the English courts interpreted the extent of article 31. At the outset of the judgment, a 1950 Memorandum from the UN Secretary-General is quoted:
“A refugee whose departure from his country of origin is usually a flight, is rarely in a position to comply with the requirements for legal entry (possession of national passport and visa) into the country of refuge”.
Lord Justice Browne, in Adimi, analysed the requirement that a refugee is ‘coming directly from a territory’, accepting that:
“…some element of choice is indeed open to refugees as to where they may properly claim asylum. I conclude that any merely short term stopover en route to such intended sanctuary cannot forfeit the protection of the Article, and that the main touchstones by which exclusion from protection should be judged are the length of stay in the intermediate country, the reasons for delaying there (even a substantial delay in an unsafe third country would be reasonable were the time spent trying to acquire the means of travelling on), and whether or not the refugee sought or found there protection de jure or de facto from the persecution they were fleeing”.
A similar interpretation is to be found in the UNHCR revised guidelines on applicable criteria and standards relating to the detention of asylum seekers.16 Mr Adimi had travelled to the UK via France and Italy. He presented a false Italian document to gain entry to the UK. The two other applicants in the case, Mr Sorani and Mr Kaziu, were an Iraqi Kurd and an Albanian national. They were transiting through the UK on their way to claim protection in Canada. The court found that the applicants were entitled to immunity from prosecution because of Article 31 of the Refugee Convention. Following the judgment in Adimi, English domestic law was amended to include a defence in criminal proceedings based upon article 31(1) of the Refugee Convention. Section 31 of the UK’s Immigration and Asylum Act 1999 provides that:
“Defences based on Article 31(1) of the Refugee Convention.
1. It is a defence for a refugee charged with an offence to which this section applies to show that, having come to the United Kingdom directly from a country where his life or freedom was threatened (within the meaning of the Refugee Convention), he –
(a) presented himself to the authorities in the United Kingdom without delay;
(b) showed good cause for his illegal entry or presence; and,
(c) made a claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom.
2. If, in coming from the country where his life or freedom was threatened, the refugee stopped in another country outside the United Kingdom, subsection (1) applies only if he shows that he could not reasonably be expected to have sought protection under the Refugee Convention in that other country”.
Lord Justice Browne later resiled from the findings in Adimi that there was a legitimate expectation that an applicant could rely upon provisions of the Refugee Convention generally in national courts.17 A similar view was expressed by O’Higgins J. in NS v Judge Anderson [2008] 3 IR 417. In MIF v International Protection Appeals Tribunal [2018] IECA 36, an appeal of refusal of leave, Hogan
J. considered paragraph 2 of Article 31, but did make some comments on paragraph 1. While noting that the Convention does not enjoy the force of law, he commented:
“This, however, is as far as the Geneva Convention goes; it protects refugees from prosecution in the case of the use of false papers used in the course of flight…”
These are still important protections provided for by the Refugee Convention. In September 2024, the UNHCR issued guidelines on the issue: ‘Guidelines on International Protection No 4: non-penalization of refugees on account of their irregular entry or presence and restrictions on their movements in accordance with Article 31 of the 1951 Convention relating to the Status of Refugees’. The UNHCR contends for a broad interpretation of the phrase ‘coming directly from a territory where their life or freedom was threatened’ as contained in Article 31 of the Refugee Convention. The UNHCR states:
“Laws, policies and practices penalizing people in need of international protection because of their unauthorized or irregular entry and presence and/or restricting their freedom of movement can breach Article 31 of the 1951 Convention relating to the Status of Refugees (1951 Convention)”.18
Although the UNCHR guidelines do not have the force of law, other guidelines prepared by the agency have been cited as ‘authoritative’ by the Superior Courts.19
The application: accelerating procedures
Under section 43 of the 2015 Act, an applicant can be subjected to accelerated appeals procedures if a finding pursuant to section 39(4) is applied to their case. The practical implication is the loss of an automatic right to an oral hearing, unless it is in the interests of justice, and the procedures at appeal stage should be completed more rapidly.
The accelerated examination of international protection applications at first instance is addressed by both the Procedures Directive 2005/85/EC (article 23(4)) and the Asylum Procedures Regulation 2024 (article 42). The latter has received significant attention, and most particularly, the inclusion of a statistical provision whereby an applicant can be subjected to accelerated procedures where they are from a country that has an EU-wide recognition rate of 20% or lower. It is worth noting that the Minister for Justice amended the 2015 Act in November 202220 to insert the following into section 72, to allow for the prioritisation of certain applicants where:
“… the country of origin of the applicant is a country in respect of which there are a large number of applications or appeals, and the need to ensure that these and all other applications or appeals are dealt with in an efficient manner”.
Issues have already been arising in practice with the expedited procedures and the manner in which applications have been accelerated.
Applicants are no longer provided with a questionnaire in their own language, nor are they permitted to obtain legal advice prior to the completion of the document, although the newer version did still contain a space for the signature of the legal representative, for some reason. They now complete the questionnaire on the same day they apply for protection at the International Protection Office (IPO). This appears, in some cases, to be leading to relevant information not being disclosed at the earliest stage.
Medico-legal reports are extremely difficult to obtain within the expedited time frame. Spirasi, the main provider of medico-legal reports in the international protection process, has long waiting lists21 and, as of mid to late 2024, only accepts referrals at appeal stage,22 making it very difficult for applicants to obtain medical evidence.
In TU v IPAT [2024] IEHC 73, Barr J. relied upon the decision of the Court of Justice of the European Union (CJEU) in X v IPAT (Case C-756/21), to find that the duty of co-operation extended to the obtaining of a medico-legal report where the applicant raised for the first time at appeal hearing, scars on his body arising from alleged beating by state actors. The duty of mutual cooperation equally applies to the first-instance stage.
First-instance decisions are not immune from judicial review. Denham J. in Stefan v Minister for Justice [2001] 4 IR 203 issued certiorari of a first-instance decision because the decision-maker failed to take account of part of that applicant’s questionnaire. The circumstances of review are more limited because of the availability of an alternative remedy.23 In AE v Chief International Protection Officer [2023] IEHC 695, Phelan J. granted certiorari of a firstinstance decision for a failure to consider documentation.
Recital 16 of the Asylum Procedures Regulation 2024 provides as follows:
“It is in the interests of both Member States and applicants that applicants receive at a very early stage comprehensive information on the procedure to be followed and on their rights and obligations. In addition, it is essential to ensure a correct recognition of international protection needs already at the stage of the administrative procedure by providing good quality information and legal support which leads to more efficient and better quality decisionmaking. For that purpose, access to legal counselling, assistance and representation should be an integral part of the common procedure for international protection. Applicants should, as soon as possible after an application for international protection has been registered, upon their request, be provided with free legal counselling during the administrative procedure. Furthermore, to ensure the effective protection of the applicant’s rights, particularly the right of defence and the principle of fairness, applicants should, upon their request and subject to conditions set out in this Regulation be
provided with free legal assistance and representation in the appeal procedure. It should also be possible for Member States to provide for free legal assistance and representation during the administrative procedure in accordance with national law”. [emphasis added]
Article 15(1) of the Asylum Procedures Regulation 2024 specifically provides:
“Applicants shall have the right to consult, in an effective manner, a legal adviser or other counsellor on matters relating to their applications at all stages of the procedure”.
The risk of procedural unfairness
The Asylum Procedures Regulation 2024 includes a new type of legal assistance role, that of a legal counsellor. The term: ‘legal adviser or other counsellor’ is used throughout the Asylum Procedures Directive 2005/85/EC and the Recast Asylum Procedures Directive 2013/32/EU, the latter of which Ireland never opted into.
Article 8(2)(d) of the Asylum Procedures Regulation 2024 provides “the right to free legal counselling for the lodging of the individual application and to legal assistance and representation at all stages of the procedure …”. Article 16 of the Asylum Procedures Regulation 2024 provides for “free legal counselling in the administrative procedure”.
Legal counselling may be excluded in circumstances where, inter alia , the applicant already has a legal advisor acting on their behalf. Hopefully, if the role of ‘legal counsellor’ is used in Ireland, it will not lead to limiting a right to access legal representation and individual advice through the Legal Aid Board at first instance. At first impression, it is an additional right, an information service, which should be provided in advance of making an application. As matters stand, applicants are not receiving any legal advice before making their applications and submitting questionnaires. Previously there was a period of time between making the initial application and submitting the questionnaire. At the present time, the questionnaire is completed immediately upon making an application for international protection.
A fairer and more efficient first-instance procedure should include the right to be represented and advised by a legal representative. The importance of legal assistance at all stages of the procedure was affirmed by the European Court of Human Rights in SH v Malta (Application no. 37241/21, 20 December 2022). Research indicates that early legal advice is in the interests of a fairer and more efficient protection system as a whole.24
Without private space to complete the questionnaire, without access to early legal advice, and without the benefit of a medico-legal report, applicants may not disclose traumatic past occurrences to a State official such as the
IPO interviewer. It may then only be something that arises late in the process, slowing matters down at appeal stage. It is important that by prioritising so-called ‘safe country’ applicants or those in a border procedure, other applicants from countries where their applications are likely to be well founded or with additional vulnerabilities, are not left waiting at the back of a queue.
References
1 International Crisis Group. 10 conflicts to watch in 2024. Available from: https://www.crisisgroup.org/global/10-conflicts-watch-2024. The International Crisis Group’s ‘conflicts to watch in 2025’ report (https://www.crisisgroup.org/global/10conflicts-watch-2025) notes little improvement.
2. International Protection Office. Statistics. Available from: https://www.ipo.gov.ie/en/ipo/pages/statistics
3. See Irish Refugee Council, Statement to the Oireachtas Justice Committee members on the EU Migration and Asylum Pact, April 30, 2024. Available from: https://data.oireachtas.ie/ie/oireachtas/committee/dail/33/joint_committee_on_justice /submissions/2024/2024-04-30_opening-statement-nick-henderson-ceo-irish-refugeecouncil_en.pdf
4. Osheku v Ireland [1986] I.R. 733; Re Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 I.R. 360.
5. The latter may bring with it issues, including in respect of credibility and the failure to claim protection at the earliest opportunity. See: s.28(7)(d) of the 2015 Act. A failure to claim protection at the earliest opportunity may be taken into account when determining whether to extend the benefit of the doubt to an applicant in credibility assessments.
6. Phelan, C. Gardaí to travel to international airports to check refugee documents. Irish Examiner, February 6, 2023. Available from: https://www.irishexaminer.com/news/arid41064869.html
7. As defined in s.3 of the Fines Act 2010: up to ¤5,000 on summary conviction.
8. Section 4(a) of the 2024 Act, commenced on August 12, 2024.
9. Section 4(b) of the 2024 Act, commenced on August 12, 2024.
10. Gov.ie. Minister McEntee announces measures to strengthen obligations ensuring travellers to Ireland have the appropriate documents. Available from: https://www.gov.ie/en/press-release/2fdd9-minister-mcentee-announces-measuresto-strengthen-obligations-ensuring-travellers-to-ireland-have-the-appropriate-docume nts/
11. See, e.g., UNHCR handbook on procedures and criteria for determining refugee status and guidelines on international protection, para.196.
12. Gov.ie. Minister McEntee increases penalties for carriers who fail to ensure passengers have appropriate travel documentation. Available from: https://www.gov.ie/en/pressrelease/dfaa9-minister-mcentee-increases-penalties-for-carriers-who-fail-to-ensure-passe
Expediting procedures cannot and should not necessarily result in procedural unfairness. If the expedited procedures are to work, whether they be the threemonth safe country timeframe currently being implemented by the IPO or the 12-week timeframe under the Asylum Procedures Regulation 2024, there should be a holistic approach. Otherwise, the State risks seeing increased intervention by the High Court.
ngers-have-appropriate-travel-documentation/. Only Q1 figures for 2024 were available at this point.
13. Gallagher, C. Just one prosecution in four years for failing to produce passport on arrival in Ireland. The Irish Times, March 23, 2023. Available from: https://www.irishtimes.com/crime-law/2023/03/23/just-one-prosecution-for-failingto-produce-a-passport-in-four-years/
14. Tuite, T. Sudanese man jailed as ‘deterrent’ after arriving at Dublin Airport with no ID or passport. Breakingnews.ie, February 2, 2024. Available from: https://www.breakingnews.ie/ireland/sudanese-man-jailed-as-deterrent-to-others-afterarriving-at-dublin-airport-with-no-id-or-passport-1592707.html
15. Tuite, T. Man from Eritrea who landed at Dublin Airport without passport or ID is jailed for two months. Journal.ie, April 9, 2024. Available from: https://www.thejournal.ie/man-fromeritrea-landed-dublin-airport-no-passport-jailed-6349719-Apr2024/
16. UNHCR Ireland. UNHCR Revised Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum Seekers. Available from: https://www.unhcr.org/ie/media/unhcr-revised-guidelines-applicable-criteria-andstandards-relating-detention-asylum-seekers
17. R (European Roma Rights) v. Prague Immigration Officer at Prague Airport (CA) [2004] 2 WLR 147.
18. Guidelines on International Protection No 4: non-penalization of refugees on account of their irregular entry or presence and restrictions on their movements in accordance with Article 31 of the 1951 Convention relating to the Status of Refugees, September 2024 at [1].
19. E.g., Hamza & Elkhalifa v Minister for Justice [2010] IEHC 427 (Cooke J), judgment upheld on appeal.
20. Regulation 3 of the European Communities (International Protection Procedures) Regulations 2022.
21. Spirasi. Strategic Plan 2022-2025, 2022, p.20. Available from: https://spirasi.ie/wpcontent/uploads/2022/11/Spirasi-Strategic-Plan-2022-2025.pdf
22. Spirasi. Referral form. Available from: https://spirasi.ie/mlr-referral-form/
23. BNN v Minister for Justice [2009] 1 IR 719.
24. ECRE/ELENA, ‘Survey on Legal Aid for Asylum Seekers in Europe’, October 2010; Bridget Anderson & Sue Conlan, Providing Protection Access to early legal advice for asylum seekers, 2014.
NOT FIT
FOR PURPOSE
The much-anticipated review of the Civil Legal Aid Scheme must address the issue of barristers’ fees.
We consider the picture today where legal aid is only available on restricted grounds, subject to unrealistic means test thresholds, and provided by an under-resourced and over-stretched organisation. People receive assistance from voluntary groups, from some admirable charities, and from the long tradition of goodwill within the professions, but many others are sometimes driven to resort to self-help or fall into the clutches of those outside the legal professions offering deceptively cheap and simple solutions, or simply suffer in silence.”
These remarks by Chief Justice Donal O’Donnell at the launch of the Access to Justice Conference Report in July 2023 drew on parallels with people with serious health problems prior to the Health Act of 1970 in describing the plight of litigants seeking access to justice under the existing Civil Legal Aid Scheme. His comparison recognises access to justice and to our courts as a vital public service, requiring investment and resources.
Review of civil legal aid
What has been described as a “historic, once-in-alifetime” review of our Civil Legal Aid Scheme is nearly complete. At the time of writing, the report of the review group, chaired by former Chief Justice Frank Clarke, is being finalised. It is anticipated that the comprehensive work will inform an overhaul of the system so that people can protect their rights and secure access to proper legal representation commensurate with need. A key concern is the interplay between any revised or updated approach to the delivery of civil legal aid and the fees paid to deliver that service.
Deirdre Browne BL
Barristers endured severe cuts during the economic crisis in 2012, and these cuts have not been reversed. The goodwill and energy of practitioners is also being eroded. Initial findings from our recent survey of members confirm what we know to be true: civil legal aid fees are at an unsustainable level. The system is at risk of being hollowed out by a loss of expertise, with 82% of respondents indicating that they will be forced to consider other areas of practice within the next 12 months if fees remain unchanged. A full report of survey findings and recommendations, including valuable member feedback, will be published at the beginning of Easter Term.
These are systemic risks. In the absence of representation, litigants in person trying to navigate the system experience delays and risk injustice. Talent is drained; practitioners are drawn away to more lucrative areas of work and those committed to staying struggle to establish viable practices.
Recommendations and engagement
The Legal Services Regulatory Authority (LSRA) Breaking Down Barriers Report, which looks at how to create a sustainable legal services sector for the future, is unequivocal in its Recommendation 26:
“Engagement between relevant stakeholders –Departments of Justice, Public Expenditure and NDP
Delivery and The Bar of Ireland – should be intensified so that the concerns identified in the LSRA research around the levels and structure of professional fees for State-funded legal aid work undertaken by junior barristers are explored and addressed”.
The Bar is keen to advance that engagement without delay, in support of both junior and longstanding practitioners. Six years before the LSRA report, the 2018 Oversight and Performance Agreement between the Legal Aid Board and the Department of Justice prescribed the following objective to be completed in Q4: “Revise the terms and conditions on foot of which barristers are retained”.
In its letter to practitioners in 2012, the Board wrote: “The reduction [in fees] is in no way intended to reflect negatively on the contribution that barristers make” to the Board’s work and to its clients. In the intervening period, the Bar has made repeated representations. Our position was clearly articulated in a detailed evidence-based submission to the Board and Department of Justice in 2018 calling for a fundamental review of the 2012 terms to include:
■ a restructuring of the basis on which fees are calculated;
■ a recalibration of fees payable so that the fees that are paid constitute a fair and reasonable payment for the work done; and,
■ incorporation of provisions providing for the payment of fees on an interim basis.
The matter needs to be addressed as a matter of urgency: the scheme remains as described in those submissions: “not fit for purpose”.
