TheSunday Business Post April 1, 2018 businesspost.ie

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Elaine Byrne Susan O’Keeffe Michael O’Higgins Like it or not, we must Case revealed a shocking Why it was unfair to vilify respect the verdict p4 attitude towards women p4 for turning up p9 The inside story of an acquittal Beyond a reasonable doubt A special report by Francesca Comyn

f proof beyond a reasonable doubt is the cornerstone of securing a criminal conviction, fostering doubt is the lifeblood of a good criminal defence strategy. Doubt wrenches a hole in the prosecution evidence. Doubt causes a hesitation, a Icreeping sense of unease. It lodges a niggling concern in the mind of a juror that to convict would be wrong. to page 2

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CALL US TODAY: 01 204 8300 DESIGNED FOR THE IRISH TAX SYSTEM bigredcloud.com The Sunday Business Post April 1, 2018 2 The rugby rape trial Post Plus The woman has a lasting entitlement not to be identified. But her name began to proliferate on ‘‘social media, in breach of her rights. Photographs purporting to be her were recklessly shared online

from page 1 amination. Judge Patricia Smyth made sure in great distress after a sleepless night tossing Last Wednesday, Ireland rugby stars Paddy there were frequent breaks. and turning. She said she had not made up her Jackson and Stuart Olding were acquitted of In her evidence for the prosecution, the mind about going to the police at this point, raping a young woman at a house party in the court heard that the then 19-year-old and she didn’t know whether oral sex or digital early hours of June 28, 2016. woman had gone out to celebrate the end of sex could even amount to rape. They emerged from Belfast Crown Court to her A-level resits with friends on Monday, While initially the woman claimed that face uncertain futures after a gruelling 42-day June 27, 2016. Olding had intercourse with her, the court trial in the lurid glare of the media. Noth- She told Toby Hedworth QC that she ended heard a charge of vaginal rape was’’ withdrawn ing in their sporting careers could have pre- up in the VIP area of Ollie’s nightclub. After- by the Crown prosecution late last year. By pared them for the onslaught of the past nine The last thing wards, she went to a party in Paddy Jackson’s I would have her own account she was face-down on the weeks. house. bed and could not say for certain if he had Their co-accuseds, Blane McIlroy and Rory She didn’t really know the crowd going back. actually had sex with her. This fact emerged Harrison, walked free on lesser charges. McIl- I want is a There were four women including herself, and been pretty under cross-examination by Olding’s barrister, roy was acquitted of exposing himself; Har- the four male rugby players. She said she had Frank O’Donoghue. rison of perverting the course of justice and girl crying expected others to join them. drunk, but She said she was 100 per cent certain that withholding information. While she was hazy about the details, she Jackson had had sex with her, a claim he vig- While Jackson was greeted outside with agreed at some point she wound up consen- orously denied. He agreed that he had used his cheers and honking car horns, the fact that a and leaving sually kissing Jackson in an upstairs bedroom. still coherent . fingers to penetrate the woman, but insisted couple of thousand people attended rallies in The court heard he tried to undo her trousers it was with consent. Belfast, Cork and under the “I believe my house. I but, when she rejected his advances, they . . Everything Jackson’s assertion was complicated by the her” banner showed just how divisive the went back downstairs. evidence of another partygoer, Dara Florence, trial had been. She took a gut dislike to McIlroy who was who walked in on them in the bedroom by At the very least, it had thrown an unedifying would’ve been having pictures of himself taken with the other that happened mistake. Kelly made much of the fact that the spotlight on a toxic laddish culture within Irish female partygoers sitting on his knee. She said woman failed to mention the existence of this rugby, where bragging blokes referred to wom- completely the mood of the party had shifted and she that night crucial eyewitness in her first account to the en as “sluts” and “brasses” to be “pumped” decided to go home. police, which she gave in tears two days after and “spit roasted”. When she went back up to the bedroom the alleged rape. The jury returned unanimous not guilty freaked out to look for her bag, she claimed that Jackson was entirely The evidence of Florence, the only partygo- verdicts in under four hours. The speed of the followed her upstairs, pushed her onto the er who was not drinking, had elements of a delivery belied the difficulty of the task, but Paddy Jackson bed, pulled her trousers down and raped her consensual poisoned chalice for both the prosecution and also strongly suggested that, as far as the 11 face-down. She said he was strong and she the defence. By her account, she saw Jackson jurors were concerned, the prosecution case couldn’t move. She was frozen, she said it was having intercourse with the woman, which fell well short of the mark. almost like an out of body experience. Stuart Olding he denied, but, , to her it looked consensual. In the soup of alcohol, hazy memories and She claimed that when Olding entered the In her testimony to the jury later in the trial, clashing evidence served up in Court 12, doubt room, she said to Jackson: “Paddy, please no, Florence said she had laughed with a friend went to the very heart of the issue. not him as well.” She claimed Olding forced about seing a threesome. Jackson even invited her to perform oral sex on him and, at one her to join in with them, but she turned down point, ordered her to take her top off. his offer. By her account, after the intercourse Jackson Because Florence and the other partygoers Cavalier tried to put his whole hand inside her. She said had been taking photos and posting Snapchat she was in pain, and when she started to bleed, stories earlier in the night, the complainant disregard one of the men began to laugh. said she turned her face away from the door “RAPE IS A GAME OF POWER AND CONTROL, She said her instincts to flee only kicked in when Florence entered, “mortified” in case she and they rely on your silence,” the woman, when McIlroy appeared at the door completely would be identified or photographed. who was 19 at the time of the incident and is naked, holding his penis in his hands. She put What it boiled down to, Kelly put it to the now aged 21 and in third-level education, told on her trousers and ran from the room with witness, was that she had engaged in group the jury in her evidence for the prosecution her underwear shoved into her pocket. sex in an intoxicated and excited state, but in week one of the trial. As she pushed her way past McIlroy, he was petrified that either the rumour or proof Reporting it to the police was a way of pos- allegedly said: “You fucked the other guys, of this sexual activity would find its way to sibly preventing it from happening to someone why not me?” The court heard she replied: her friends. “That’s what drove you on as far else. “It was the best decision I ever made,” “How many times does a girl have to say no as running with this lie, is it not?” he asked. she added. for it to sink in?” She replied: “No, this is not a lie, Mr Kelly.” Bravely, perhaps, it is a decision she stands The jury heard that, having fled from the by post-conviction, according to the PSNI. house, the woman realised she had left her As a rape complainant, the law classified phone behind and had to return to the bed- her as a vulnerable witness entitled to cer- room to get it so she could call a taxi. Strained tain protections. That meant she testified Leaving a second time, she said that Rory from behind a blue curtain so she did not Harrison followed her out and offered to share emotions in the have to look at the four accused men sitting a taxi home with her. in the large glass dock towards the rear of Harrison did “absolutely nothing wrong”, public gallery the court. she later told police. “He didn’t touch me. I AT TIMES DURING THE WOMAN’S The men’s families, members of the media was crying. I can’t remember what I said to cross-examination, a febrile atmosphere and the daily crowds of onlookers who sat in him, I was so upset.” took hold in the public gallery as some of the the soundproofed public gallery were also out She recalled Harrison walking her to the younger relatives and friends of Jackson and of her line of vision. door of her home and asking her if she was Olding struggled to keep their emotions in However, she was able to see the judge, jury going to be okay. She thinks she told him some- check. Once or twice, during the more point- and lawyers directly, and they in turn could see thing like: “It doesn’t happen to girls like me.” ed exchanges, anger spilled over into critical her in the flesh. Everybody else could watch She went into her home and, a minute later, commentary. This would not have been audible her giving evidence on a TV monitor in the Harrison sent her a WhatsApp message: “Keep in the main body of the courtroom. courtroom. the chin up you wonderful young woman.” For her part, the woman maintained her The woman also has a lasting entitlement She thanked him and he replied with “a song composure as she forged through the numer- not to be identified. In reality, however, the to calm you down before bed”. ous lines of attack thrown at her by the four trial was open to the public and her anonymity Taxi driver Stephen Fisher would later defence counsels. ended at the courtroom door. The curious came give evidence that the woman was “sobbing The only flare-up came on her penultimate in their droves to court, at times vying for the throughout the journey”. He said Harrison day in the witness box, under interrogation limited number of seats. comforted the woman, but he could also hear from Arthur Harvey QC, for Blane McIlroy. He The woman’s name was mentioned every him “speaking in code” on the phone about repeatedly accused her of stringing together few minutes in the course of proceedings. how “he was with her now” and was “leaving a contradictory and self-serving narrative of Unsurprisingly, it began to proliferate on social her home”. the night in question. He said she had an easy media, in total breach of her rights - an issue The next day, around midday, Harrison tex- habit of “moving from truth to untruth and the PSNI has promised to tackle in the wake ted her asking if she was feeling better. self-delusion”. of this trial. Photographs purporting to be her She replied: “To be honest no. I know you Seven times, Judge Patricia Smyth inter- were recklessly shared online. must be mates with those guys, but I don’t like rupted his cross-examination to clarify what, Lines were quickly drawn on social media them. And what happened was not consensual if any, question he was putting to the witness. for and against her. Volleys of tweets rallying which is why I was so upset.” It was a key text “What happened is, you had regrets,” he behind the woman were posted with cavalier in the prosecution case against all of the men, She rejected Kelly’s contention that she was suggested as he questioned why she had spent disregard to the accused men’s right to due but against Harrison in particular, who was fixated with celebrities. She said she didn’t the best part of an hour having non-consensual process. The Best of accused of covering up for his friends. know who these men were. She also denied sex in a bedroom at a party, when there were In the media frenzy that gripped the trial, In her first police interview on June 30, she that, having failed to score an invite to the three other women at the party downstairs there was even a short-lived crowdfunding intentions? said she was worried about what was going team’s after-party, she had who would have heard her cry out. campaign calling for flowers to be sent to the BY TURNING UP TO THE COURTROOM ON to happen to her because of the people in- settled for going back to Jackson’s. “That’s not how you react when you’ve been woman every day, care of the prosecution, as the woman’s first day of evidence, Ireland volved. “I’m so reluctant to do anything. They The next morning, the woman texted her raped,” the woman answered. She said she a show of support. and captain Rory Best fanned are probably not as important as I think they close friends, telling them she had been raped. was so scared that, instead of screaming and the flames. His presence was greeted with are. But they are big names here.” “I don’t want to get the police involved. You shouting, she felt numb and tried to block out opprobrium by many. know how that will turn out, their word against what was happening. Later in the trial, Dr Janet It wasn’t just Best. Craig Gilroy, who would mine. Ulster Rugby will vouch for them and I Hall, a forensic medical expert with extensive later be identified in court as “CG” in the will just look like a stupid little girl,” she wrote experience of sexual crime, confirmed that this WhatsApp group where the accused men The poisoned in one message. was a very common reaction among victims. went to brag about their sexual exploits, also In another text, she noted that nine out of At times, Harvey’s strident approach felt like showed up along with Ulster teammate Iain chalice of a sober ten rape cases do not lead to convictions. a risky strategy likely to push the vulnerable VICAR SPRAOI Henderson. But it was Best who was under However, as she was not sure if a condom witness into the arms of the jury. But some of the greatest pressure to justify his decision witness had been used the night before, she was per- his blows landed. The timings, in particular, Ceolchoirm mór le ceoltóirí agus amhránaithe to attend his friends’ rape trial. THE WOMAN’S DIRECT EVIDENCE suaded by a friend to attend the Brook sexual were problematic. A photo taken at 3.50am ildánacha. Interviewed the following Saturday after lasted half a day, then the cross examination health clinic for the morning-after pill. From downstairs at the party showed the woman Ireland’s win over France in the Six Nations, started. Brendan Kelly, the high-profile Lon- there, she was sent forward to the Rowan in the background putting on her shoes. This A Concert of many of Irelands finest traditional he confirmed he was a potential character don-based barrister hired by Jackson, led the Sexual Assault Referral Centre to undergo a was just before the alleged rape. musicians, on this renowned night of entertainment. witness in the case. way. Described as a “charismatic” operator in forensic examination. The court heard it was around 4.10am when The jury was told the following week that legal circles, Kelly previously represented Ha- “Can you explain why, on that evening, given Florence walked in on the “threesome”. Ciaran Tourish (fiddle) / Máire Breatnach (fiddle) Best had been instructed by the defence zel Stewart, the Sunday school teacher convict- that you were there to set in stone the forensics, Harvey stressed that “whatever happened Dermot Byrne (accordion) / Kevin Doherty (vocals and lawyers to attend court in order to hear the ed of the 1991 joint murder of her policeman there was a record indicating there was no oral in that room happened for at least 40 or 45 guitar) Cormac de Barra (Harp) / James Delaney woman’s testimony. husband and the partner of her former lover, penetration?” Kelly asked. minutes” after Florence left. (keyboards) The reason for issuing such an unusual dentist Colin Howell in Derry. Her initial interview at the Brook clinic “I’ve absolutely no recollection how long I Na Casaidigh / SELK (Anna Jordan, Denis Cassidy & direction was never explained. Given that In cross-examination, Kelly deployed sever- noted that there were “two assailants, vag- was in that room being raped,” was her reply. Barry Brady) Sibéal Davitt ( sean-nós dancer) / Cór Cuilinn the role of a character witness is essentially al tactics to chip away at the woman’s evidence, inal penetration, no condoms”. While it was The complainant got into a cab with Har- Tom Morrow & Turlough Chambers (fiddle) / Katerina limited to delivering benign blandishments at times it seemed everything was fair game, clearly meant as a rough sketch of what had rison at around 5am, and was seen on CCTV García (singer) about an accused, why would he have needed including a momentary drunken stumble cap- allegedly transpired in an upstairs bedroom arriving home at 5.15am. There was evidence to hear the woman’s evidence? tured on CCTV at Ollie’s nightclub earlier in at Jackson’s house, there were inconsistencies that she had accessed the Uber taxi app on her MC Aoife Nic Cormaic Best, who was busy leading the Ireland the night, she was surrounded by members of between this and later accounts that Kelly was phone at 4.43am. VICAR STREET team to a Grand Slam, was not seen again the Northern Ireland football team, who had keen to exploit. When the woman’s evidence was complete, 12ú Aibreán, 2018, 8i.n. inside the courtroom. just returned from France after being knocked The woman had made no mention of oral the judge made arrangements for her to listen out of Euro 2016 by Wales. sex or digital penetration, key ingredients of to the rest of the trial in a separate room. Ticéid €25, ó Ticketmaster agus She could be seen putting her hand on a the charges subsequently brought against the ag an doras ag Vicar Street ar an oíche. man’s knee and later touching the arm of two rugby players. These would not be raised ]]] Lean sinn ar Facebook chun tuilleadh sonraí a fháil. ‘Please, no, not Follow us on Facebook for more detail. Northern Ireland striker Will Grigg outside until her first police interview two days later the club at closing time. on June 30, 2016. As the trial progressed, there was evidence from him as well’ The woman accepted she was drunk, but In her evidence to the jury, the woman said the woman’s friends and the other partygoers. The I gcuimhne John Breen IN TOTAL, THE WOMAN SPENT EIGHT said she felt “with it” after three double vodkas there was nothing sinister about the omis- court also heard from Dr Philip Lavery, a forensic days in the witness box, six under cross-ex- and around a glass and a half of white wine. sions. She had presented herself at the clinic medical officer who examined the woman at the The Sunday Business Post April 1, 2018 Post Plus The rugby rape trial 3 Jackson described being in shock when he was first arrested on suspicion of rape. ‘I was just going ‘‘ through the motions in the police station. It was really weird,’ he said on the witness stand

At 11.17am, Olding texted: “We are all top He denied it was “fanciful” to suggest that shaggers.” He then added: “There was a lot of he had begun kissing a woman who had just spit roasting going on last night fellas.” had his friend’s penis in her mouth, or that he Jackson responded: “There was a lot of spit.” had been passively lying on the bed like a “sex Olding replies: “It was like a merry-go-round toy” while the woman took all the initiative. at a carnival.” As his barrister Frank O’Donoghue contin- The jury heard that another friend who was ued to read out the texts he had sent, Olding not at the party joined in the texts around told the court ’’he was not proud of the mes- lunchtime asking about “spit roast brasses”. sages. However, he told the court that the term Paddy’s the “Legends. Why are we all such legends?” “spit roast” was an exaggeration of what had Rape is a game the friend asked, to which McIlroy responded: I just went really gone on in the bedroom. “I know it’s ridiculous.” He said that, over lunch the next day, Har- last person McIlroy had already been on to Harrison, to the police rison had never mentioned that the woman of power and texting: “What the fuck was going on? Last had been in “hysterics” leaving the party, or who would night was hilarious.” Harrison’s response no that she had claimed the sexual activity was control, and longer exists. McIlroy texted again in succes- station and told non-consensual. sion saying: “Really fuck sake. Did you calm When asked by the prosecution if he were rape someone. her. Where did she live?” the truth not furious with Harrison about this, he re- they rely on The reply was: “Mate no joke. She was in plied: “Well, yes.” But he added that he didn’t I thought she hysterics. Wasn’t going to end well. Aye just Blane McIlroy think the omission was intentional. your silence . threw her home and went back to mine.” Olding rejected the prosecution’s sugges- The prosecution claimed that Harrison’s tion that he and his friends had tried to cov- maybe had texts to his friends the next day showed that his er up a drunken night when they had gone . . Reporting it “gallantry” and concern towards the woman “completely beyond what they knew was done something were two-faced. acceptable”. was the best He texted McIlroy: “Mate the scenes last “Everything that happened that night was night were hilarious.” This was followed by entirely consensual,” he said. and regretted it the message: “Walked upstairs and there were decision Rory Harrison more flutes than 12th July.” An off-kilter I ever made Not hammered, version of The woman but pretty drunk events PADDY JACKSON WAS THE FIRST OF THE AND THEN THERE WAS BLANE MCILROY, four defendants to enter the witness box at whose account of the night was bizarrely Belfast Crown Court. As the best known of the off-kilter with everybody else’s telling of the four defendants, a man who posts YouTube story. videos of himself lip-synching to songs was To incongruous laughter from the court, not all ego or entitlement. He said it could be Jackson’s lawyers put it to the 26-year-old awkward signing autographs for fans with that even his closest friends would say he his friends around and denied the woman’s talked “shite”. claim he had used his fame to secure someone “Yeah,” McIlroy responded. else’s taxi outside Ollie’s. He described being in McIlroy was accused of exposing himself by shock when he was first arrested on suspicion turning up naked at the bedroom door, having of rape. “I was just going through the motions sent Jackson a text message asking if there was in the station. It was really weird,” he said. any possibility of a threesome. Jackson, who has played 25 times for Ire- The woman’s evidence was that he never land, was ordering breakfast at Town Square touched her. However, McIlroy told police and on Thursday, June 30, 2016, when he got a call the court that he had had consensual sexual from Ulster director of rugby telling activity with the woman at the party in the him to get a solicitor and attend Musgrave bedroom while Jackson was present. police station over a “pretty grave” matter. In police interviews, he said that at one He said his heart sank. “I didn’t know what point he had gone to feel the woman’s groin, to think. It was very confusing.” but found himself touching Jackson’s hand. By his account, everything that had hap- According to Jackson, none of this happened. pened with the woman at the party was en- “Why have you come up with a false story? tirely consensual. He had drunk several cans Has the penny not dropped that even your of beer, pints of Guinness, gin and tonics and own friends have to suggest to you that you some shots. got it wrong?” asked Toby Hedworth, for the “I wouldn’t say hammered, but I was pretty prosecution, when it came to his turn to ques- drunk,” Jackson told the court. He had not slept tion the defendant. since he had flown home from Ireland’s rugby But McIlroy maintained that the account tour of South Africa the day before. he gave to the police had been the truth. It Jackson said he first noticed the woman at was problematic, even if he was mistaken he the party when she began flirting with him seemed to have knowledge of at least some of and following him around. “It seemed very what had gone on in the bedroom from the innocent, very normal,” he told the jury. prosecution’s perspective. By his account, she followed him upstairs Did this mean that contrary to their evidence to the bedroom twice, where they kissed. He the men had discussed what happened in denied lunging at her, or that she said “no” some detail? to him. Hedworth asked him if he had thought He told the jury that their kissing became about how preposterous his account was: that more passionate second time round, and they a woman who had just received a painful injury fell onto the bed. She began playfully biting his to her vaginal wall had turned from figuratively lip before performing oral sex on him. enjoying a post-coital cigarette with Jackson When asked if she appeared to be enjoying to perform oral sex on him. what was happening, he told the jury: “She was “I just went to the police station and told doing it to me, she must, she was enjoying it.” the truth,” he replied. Dara Florence, the witness who said she It was suggested to him that he had got his saw them having intercourse, was “mistaken”, lines wrong. “This is the Paddy Jackson version Jackson said. of what Stuart Olding was meant to have been He said it was a bit embarrassing when his doing,” Hedworth asked. co-accused Stuart Olding walked in on them, “No,” McIlroy replied. Rowan Clinic. He said there was no way of saying but he kind of smiled and waved at his friend, vision, and began to get through eight cans A hopeful eye whether the sexual contact had been consensual who joined them. of Carlsberg. or not, despite a small laceration to the wall of He agreed that he used his fingers on the Later in the evening, he would put away four to the future her vagina. woman, but denied using his whole hand. pints of Guinness, two gins and tonics, five Old friends from AT 12.27PM LAST WEDNESDAY, THE FOUR There was further forensic evidence that Olding’s By his account, Olding left the bedroom, vodka lemonades, three shots and another beer. defendants were told to stand in court as day semen had been found on the woman’s clothing and he and the woman lay on the bed naked. When asked if he would have been inebri- Methody two of the jury’s deliberations came to an and underwear. At some point, he said, he lifted his head and ated leaving Ollie’s nightclub with his friends “I’VE KNOWN PADDY SINCE I WAS EIGHT abrupt end. Two days earlier, Judge Patricia However, detectives from the PSNI’s Rape Crime she was getting dressed. after 2am, Olding said: “I would have been or nine. He’s the last person who’d rape some- Smyth had told the jury a woman is entitled Unit found themselves in the firing line over the He said the woman did not appear distressed pretty drunk, but still coherent.” one. I thought she maybe had done something to say no, pointing out that the complainant’s quality of the investigation they conducted. Old- and that, if he had known she was upset, he Back at the party, he said, he walked into and regretted it,” Rory Harrison told the court account differed from the versions given by ing’s lawyers, in particular, questioned why police would have gone to help her. “The last thing Jackson’s bedroom looking for a place to sleep. when his turn came. “He’s exactly the same the men, she said “it is for you to decide where seized clothes from his apartment but failed to I want is a girl crying and leaving my house. He said he saw the woman fully clothed, lying guy I’ve known since mini-rugby when we the truth lies”. retrieve the outfit he was wearing on the night of I would’ve been completely freaked out. For on top of Jackson and kissing him. were eight or nine,” he added. After three hours and 45 minutes the verdicts the alleged offence. fear of this.” He said that neither of them showed any Harrison, McIlroy and Jackson had all gone were in. As the charges were read out, the fore- There were also delays in interviewing witnesses, “Stupid immature conversations” was how sign of distress, and the woman beckoned him to the same big Belfast rugby school, Methodist man of the jury of eight men and three women and in capturing CCTV footage relevant to the case. Jackson described the WhatsApp messages over with her hand. When his own barrister College, known as Methody. replied to each count: “Not guilty.” There was Brendan Kelly, for Paddy Jackson, was critical of mentioning “spit roasts” and “brasses” the asked him how sure he was of that invitation, In his evidence, Harrison said he didn’t tell audible relief among the families in the public the police for not clarifying with the complainant next morning between him and his friends. Olding replied: “100 per cent.” Jackson about the woman’s message about gallery, muted by Judge Smyth’s stern warning “clear as day” inconsistencies in her account. The “We were kind of egging each other on a bit,” The jury heard that, without any words be- non-consensual sex because he had “no faith that she would not tolerate any outbursts in PSNI had used a special protocol for vulnerable he said. ing spoken, Olding began kissing the woman it was true”, and he didn’t want to worry his court. Outside in the corridor, the defendants witnesses called Achieving Best Evidence. The court When asked to explain the term “spit roast”, open-mouthed. While he couldn’t quite recall friend. engaged in hugging and backslapping with heard that, instead of asking lots of questions, the Jackson said it could be sexual activity involv- how his jeans came undone, he said she began The jury heard that Harrison had been work- relatives as the result sank in. witness was meant to feel comfortable about telling ing oral, vaginal or digital penetration between to perform oral sex on him as he lay back on ing in insurance in Dublin in 2016, but was The four men left Belfast Crown Court sepa- her own account in their own words. Police did two men and a woman or a threesome. the bed. “I didn’t force her in any way,” he said. spending a few days in Belfast after a family rately. Jackson and Olding were accompanied not feel it necessary to put the woman through a In the days that followed, Jackson did not By his telling, the oral sex lasted for five to holiday in Majorca celebrating his father’s by their lawyers, who gave very different state- third interview, inconsistencies would have to be wash his bloodstained bedsheets. Instead, he ten minutes and was interrupted twice: once 60th birthday. ments to the media on their clients’ behalf. ironed out in court.l went with Olding, McIlroy and Harrison for when she asked him and Jackson if they had On the night of the party, he said he didn’t Joe McVeigh, solicitor for Jackson, high- lunch at the Soul Food cafe and then went out condoms, and again when he asked her to know why the woman came downstairs upset, lighted the heavy price paid by the out-half, ]]] drinking. He denied that, over food, they had take her top off which she did “straight away” but he speculated that she might have been railed against social media, and expressed hope concocted a plan to lie about the night before. without reluctance. rejected by Jackson in the bedroom. He took his client could return to the rugby pitch quickly. He said nothing happened that made him her home in a taxi. Slamming the police for what he claimed was believe the woman was not consenting. Oth- Under cross-examination, he denied that investigative bias, he said his client’s star status ‘We are all top erwise, he said, he would not have continued. he had put “misplaced loyalty” towards his had driven the prosecution. A huge volume In a 90 minute cross-examination, it was friends ahead of the needs of the young wom- Olding’s was a more gracious exit. While shaggers’ put to Olding by the prosecution counsel that an. He also denied that they had told him to maintaining that he had committed no crime, ONE OF THE MOST STRIKING ASPECTS OF of alcohol he had had “a bit of a skinful” of drink, and look after her, or that there had been any sort he expressed through his solictor Paul Dou- the prosecution’s case was the boastful text ONE OF THE MOST STRIKING ASPECTS OF that there was a danger in that situation that of cover-up. gan deep regrets for events on the night and messages exchanged by the four men the Stuart Olding’s evidence was the sheer volume people would do things that were not only “If you honestly believed there had been apologised for the hurt caused to the woman. morning after the alleged rape. of alcohol that he admitted to consuming on inappropriate, but downright wrong. a sexual assault at Jackson’s house, would They walked away, but the case was far from Hedworth, for the prosecution, alleged that the night. Like Jackson, he had just returned Olding said for some people that might be you have joked about it?” Harrison’s barrister, over. Public anger boiled over into public pro- these exchanges, found when police seized from Ireland’s tour of South Africa. Having the case, but he had been in complete control Gavan Duffy, asked him. test as hundreds rallied in cities around the and analysed the men’s phones, gave a “true dumped his bags, he met up with his friends of his actions. He said he had not used the “No, I wouldn’t,” he replied. country. One sign read “she didn’t scream, so flavour” of their attitudes. in the afternoon to watch Euro 2016 on tele- woman as a vehicle for his sexual desires. we will for her.” TheSunday Business Post October 1, 2017 businesspost.ie Michael Murray How to spot a takeover target Post Plus page 5 ● MONEY ● MARKETS ● MOTORS

Under-resourced and under fire, the new Chief Justice talks to Legal Affairs Correspondent Francesca Comyn about leadership, accountability and reform in turbulent times for the judiciary

wo short months ago, the appointment of Frank Clarke as Chief Justice was met with paroxysms of goodwill in HOLDING legal circles. As the favourite candidate for the job, the Tformer commercial law barrister from Walkinstown, Dublin, was hailed as a man of the people in possession of one of the finest legal minds of his generation. COURT to page 2

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3113_SBP_Advert_130x340mm_Sep17.indd 1 26/09/2017 15:54 The Sunday Business Post October 1, 2017 2 Legal Insight Post Plus I’d be very surprised if woke up last night and ‘‘ said: ‘Oh my God, I haven’t given the courts enough money’ from page 1 lined conference room attached to the six figure salaries could be cut in line with It may have been his due, but some of Supreme Court. other public servants created huge stress the puffier bursts of praise hid a deeper Lining the walls of the private corridor fractures among the profession. For some relief that Clarke, an effective operator outside are group photographs of Su- it was an out and out assault on judicial and arch-pragmatist, would have his preme Court justices dating back to the independence.’’ hand on the tiller through a potentially foundation of the Free State. In the centre It emerged last year, in Ruadhán Mac- turbulent programme of judicial mod- of the room is the historic boardroom Cormaic’s book The Supreme Court, that ernisation and reform. table, around which the most important the late judge had After all, this may prove a tricky stew- legal cases in Irish history have been threatened to resign if the poll passed, ardship for the 66-year-old. These are decided. which it did by an overwhelming ma- uncertain times for the judiciary, many Eschewing a jacket in favour of shirt jority. He stayed. of whom feel their independence and sleeves, Clarke takes a seat at the top of The brouhaha was an avoidable own standing continues to be eroded by po- the table. Sitting to his right is the media goal. Before the ballot, the judiciary had litical interference. Clarke will need a relations adviser for the Courts Service. been asked to volunteer a pay cut, which cool head to navigate the introduction In person, Clarke is affable, unceremo- they didn’t do in droves. Despite all the of a controversial new judicial appoint- nious and prone to short bursts of bois- conflict, a 2014 Council of Europe audit ments system and the establishment of terous laughter. It can make him come found that the judiciary remains one a judicial council. across more like a chief executive than a of the most trusted institutions in the There has already been strong kick- Chief Justice, but there are telltale signs. country. back within the ranks of the judiciary For starters, he has the lawyer’s ingrained But with more testing times ahead po- to Minister for Transport, Tourism and habit of peppering every sentence with litically, Clarke may need to bring some Sport Shane Ross’s crusade to laicise the qualifiers such as “I think” “perhaps” party whip skills into play. He acknowl- appointments process and with action in and “maybe”. edges it would be “very naive to think the resumed, expect lobbying, When asked what it feels like to be in any of it will go away”. rows and plenty more judicial baiting. the top position, he says: “Slightly strange. When it comes to overhauling judicial Unsurprisingly, the long vacation has The first time my secretary sent out letters appointments, the presidents of the five meant that since Clarke’s tenure began, saying ‘the Chief Justice wants to do this’, courts, from the Supreme Court down it has been all quiet on the legal front. I kind of read it and said: ‘Who’s that?’” to the District Court have already made That is about to change. The strangeness is partly because his their position clear to government. They Before an audience of Minister for Jus- appointment in late July meant that his lobbied hard against the introduction tice Charlie Flanagan and senior legal tenure was instantly becalmed by the of a lay chair and a lay majority on the figures at the last Tuesday, summer break. appointments board. the Chief Justice set out his priorities for Clarke was one of three names in the But it appears to be a losing battle, as the judiciary and the courts at the start running to replace as Shane Ross had the delivery of these of the new legal year. Top of his list was Chief Justice. The others up for consid- reforms enshrined into the Programme improving access to the courts for those eration were Supreme Court judge Donal for Government. The bill is to go before who may be priced out of justice. His O’Donnell and president Pe- the Seanad in the coming weeks. second stated priority was beefing up ter Kelly. It may be said O’Donnell was More recently, it is the lobbying that has judicial supports. cast as the intellectual heavyweight of the gone on in relation to the Judicial Council It was a speech very much of its time, three contenders and Kelly as the out- Bill 2017 that has raised eyebrows. Under perhaps tailored to appeal to the hearts spoken past critic of government, Clarke pressure from senior judicial figures, the and minds of a centre-right government. was seen as efficient, effective and fair. government agreed to introduce a pri- The judiciary is offering increased -effi In the end, his was the only name to go vacy provision relating to misconduct ciencies by way of procedural reforms to cabinet following a meeting between inquiries for judges. in exchange for more resources (a word , Flanagan and Freedom of Information documents he says. “It seems inevitable there will be than judges fear. I know District [Court] playing it, and I’m not sure that is in our that cropped up 24 times during the 30- Attorney General Séamus Woulfe. New released to the Sunday Times also showed a proposed amendment along the lines judges have the greatest fear because they interests,” he says. minute address); more of which later. politics, Shane Ross-style, this wasn’t. that senior judges, including Susan Den- of removing that ban on publication. We are on the coalface. You get some weird Clarke is keen to emphasise that he is Judicial reform was attended to brief- I ask Clarke why he thinks he suc- ham, unsuccessfully pushed for severe will take a position on that.” and wonderful complaints being made part of a team. His job is to run the Su- ly as something the judiciary favours in ceeded. He assumes it was probably to do punishments for anyone revealing details While the judiciary has been calling for public that the judge must have been on preme Court which currently has seven principle. He defended the right of judges with his prior experience in leadership of secret disciplinary investigations in- a judicial council for 20 years, there is a the take, because he couldn’t possibly judges. He has no say in what to make their views known on matters roles. “The judiciary has perhaps felt a bit volving the judiciary, including fines of lot of fear about the planned watchdog have decided the case the way he did if does as President of the High Court or that affect their interests and added that beaten up in recent times. I chaired the up to €250,000 and ten years in jail. The on the issue of misconduct. Judges are he weren’t. I suspect you’ll get some of Sean Ryan in the Court of Appeal. “There the “devil was in the detail”. Then he pur- Bar Council in not too easy times and the submission from 2015 said the proposed not used to being held accountable and that. All sorts of bias. You may well get may be a sort of a titular leadership but, posefully and quickly moved on. Clarke King’s Inns, which might not have been maximum fine at that time of €3,000 Clarke says there is a worry they will delay complaints.” in terms of actually speaking for the exchanged a few words with the minister quite so difficult,” he says. was “seriously inadequate”. be unfairly targeted by convicted crim- With its future up for some bartering, I judiciary, I’ve no more rights than the as photographs were taken afterwards, “It’s getting a disparate group and get- When I ask whether such draconian inals and aggrieved civil litigants trying ask Clarke if the judiciary plans on hiring next person.” but there has not yet been substantial ting a reasonable consensus and coming and self-interested submissions have a to “take them off the pitch”. a public relations firm to beef up its lob- When a judicial delegation does meet engagement between the two men. to a reasonable accommodation with damaging effect on the reputation of the One of the chief concerns is whether bying skills, which politicians have found face to face with the justice minister or those you have to deal with. Perhaps judiciary, Clarke responds by person- the threshold for misconduct might be lacking in the past. It was a route taken department heads, high on the list of pri- ]]] [the fact] that I had that experience in ally distancing himself from previous too low, encompassing, for example, mild by the Bar Council in recent years. The orities is the 18 month backlog afflicting a leadership role might have helped.” lobbying on the bill. He says he was not one-off incidents of rudeness in court. answer is no - although it was discussed. civil cases in the Court of Appeal. There hen I turn up to meet the He’s not wrong. There have been con- “actively involved” in the interventions Clarke is uncertain of what com- “We’re sometimes in a difficult posi- are ten judges attached to the court, four Chief Justice the following vulsive years in the recent past. The 2011 that went before. plaints to expect. “It’s very hard to call,” tion making our case publicly, but I’m of whom predominantly handle criminal afternoon, I am shepherd- referendum to abolish the constitutional “I think we are going to have to have an he says. “We’ve no experience of this. not sure it’s a game we can play because appeals, which are more or less up to Wed into the quiet, book- protection afforded to judges’ pay so their internal discussion about how we feel,” Maybe there will be fewer complaints once you start playing it, you have to keep date. But the civil side is creaking under Sexts, lies and the demise of a power couple Just a few short years ago, had it all: a marriage to a rising star of the Democrats, unmatchable connections to the Clintons, and a path to power in Washington DC that was hers for the asking. Now her life and career lie in ruins

golden couple of the Demo- escapades of his alter ego Car- cratic Party. los Danger, was a contender Once regarded as future for a senior policy adviser Democrat leaders, Weiner position, perhaps as an un- Huma Abedin and Anthony Weiner married in 2010; Abedin’s rise to political prominence was as the eyes and ears of Getty/AP and Abedin were the stan- der-secretary of Education, dard bearers of a supposedly Health or Housing and Urban It’s hard to tell what Abe- Now back in New York with scenes role. No Steve Bannon, on those in her orbit, ensur- public as a result of the inves- post-ethnic, post-race, post- Development; all portfolios din will do next. But she has her young son, she must ride she shunned the spotlight; al- ing everyone was doing their tigations into Clinton’s use of a Marion McKeone creed, post-feminist US, two where he could roll up his formidable skills of her own. out the tsunami of scandal ways discreet, circumspect, job, constantly checking her private email server while she in the US formidable talents who acted sleeves and go to war on be- She is hugely respected in that engulfed her and helped and rarely off her guard. In phone, reading emails, send- was secretary of state, provide as perfect foils for each other, half of America’s have-nots. Democratic circles, as much to scuttle her mentor’s and exchanges with this reporter ing texts, finalising scheduling insight into their relationship. politically and personally. It’s astonishing now to for her discretion and fierce closest friend’s presidential over the years, she was un- details. If it seemed like an im- Clinton appeared to depend n a fed- As late as May 2016, the think that Democrats were loyalty as her ability. ambitions. There is something failingly polite, professional possible amount of work for on Abedin for everything. eral court last week, couple’s places in the polit- so confident of a Clinton vic- Brian Fallon, Clinton’s press Shakespearean about the but unknowable. Members of one woman, it probably was. Through the past 20 years, Anthony Weiner, ical firmament seemed fixed. tory in November 2016 that secretary, told this reporter grandiose plans, the broken the travelling media groused Abedin started working through every step of Clinton’s the former Demo- Clinton believed her pres- this reporter overheard two that Abedin has the “ability dreams, the hubris followed about her aloofness, about the for Clinton back in 1996 as a personal political trajectory crat congressman, idency would be a rising tide delegates at the seamlessly to make the impossible seem by the devastating ignominy. invisible forcefield she threw 19-year-old intern fresh from and the scandals, the infideli- former New York that would lift all boats and choreographed 2016 Dem- effortless”. She’ll need it. Manhattan is a brutally around Clinton and herself college. There is still some- ties, the impeachment, the fi- mayoral candidate launch Abedin’s political ca- ocratic convention, predict Gavin Newsom, the lieu- intrusive refuge for a former that repelled anyone who thing of the intern about her; nal fatal blow dealt to her po- and former husband reer. Democrats spoke of her an Abedin/Weiner ticket for tenant governor of California, wife of a notorious public fig- sought to penetrate it. you sense beneath her com- litical ambitions, Abedin has of Huma Abedin, broke down as a UN ambassador, even a 2024, almost as a benign re- describes Abedin as a “politi- ure. Any new relationship or Until the final week of the posure and professionalism, a been by her side, inscrutable Iin tears as he was sentenced secretary of state, in a Clinton imagining of the Netflix series cal Swiss Army knife . . . She’s career move will come under campaign last year, the two certain reticence. Unlike other and irreplaceable. But while to 21 months in prison for ex- administration. But in truth, House of Cards. connecting dots, building microscopic scrutiny. were rarely more than a few mother/daughter or mentor/ no one doubted her fierce loy- changing lewd messages with Abedin was more likely to It seemed fanciful, even bridges, and doing the work And of course, there will feet apart. Abedin would ush- protégé relationships, she alty to Clinton, Abedin’s own a 15-year-old schoolgirl. continue her role as Clinton’s then. Now, with Clinton’s of a half-dozen people. I joke be much schadenfreude: not er Clinton onstage at rallies seemed to have no interest in behaviour sometimes seemed Abedin, Hillary Clinton’s gatekeeper, albeit at cabinet presidential ambitions in with my staff: ‘Can’t you be just because the irrepressible, and events, whispering en- forging her own path, or in us- inexplicable and certainly un- longtime aide and closest level. tatters, it seems absurd, even more like Huma?’” he said. egomaniacal, sexually devi- couragement and then hover ing the formidable knowledge helpful to her mistress. confidante, who now lives She would likely have be- delusional, the punchline of While undoubtedly meant ant Democratic Congress- in the wings. As soon as Clin- and contacts she accumulated The fly-on-the-wall doc- alone in Manhattan with their come Clinton’s chief of staff, a cruel cosmic joke. Clinton as a compliment, his assess- man from Brooklyn got his ton had finished delivering on her two-decade climb to umentary she and her hus- young son, was nowhere to arguably the most powerful vanquished, Abedin divorced, ment is somewhat derogatory, comeuppance, but because her wonkish stump speech in the pinnacle of power. band made was released in be seen. person in any administration, jobless and attempting to re- seeming to consign Abedin this post-millennial take on that strident but hesitant tone, But the relationship was US cinemas just six months By any standard, the Wein- making history as the first build her life as single mother permanently to the role of West Side Story imploded she would gravitate straight more than just boss and em- ahead of the 2016 election. er-Abedin drama, which for woman – and Muslim – to and breadwinner while her loyal underling. Abedin her- with such devastating finality. back to Abedin, seeking a re- ployee. And it irked many in It was hard to guess the mo- once relegates the Clintons fill the role. husband, now a convicted sex self has, despite Clinton’s Abedin was an important assuring assessment of her the Clinton camp, who found tives behind the public airing to bit parts, is an astonishing Meanwhile her husband, offender, prepares to start a prodding, shown little incli- engine within the Clintons’ performance. Abedin to be too tenacious a of her humiliation by her phi- and multifaceted Washington the brash, tenacious, yet ide- 21-month prison sentence. nation to transform herself political machine, helping to In between, Abedin was gatekeeper. landering, sexting husband DC scandal and a spectacular alistic streetfighter, notwith- How does anyone come back from perennial bridesmaid propel the juggernaut forward always watching anxiously, The email exchanges be- and the implosion of his 2013 fall from grace for the former standing the farcical sexting from this? to political bride. but preferring a behind the one eye on Clinton, the other tween them, which became bid to become Mayor of New The Sunday Business Post October 1, 2017 Post Plus Legal Insight 3

Clarke in his speech were broad. As mon- school. He feigns offence when I describe IBRC’s battle to stop the family of Sean However, when it comes to the contro- ey is a finite resource, he has focused on his background as ordinary. Quinn moving assets beyond the bank’s versial appointment of outgoing attorney modernising procedures that fall within “The three senior court presidents are reach, as well as the long-running The- general Maire Whelan to the Court of the control of the judiciary. all Christian Brothers boys. Sean Ryan ma action relating to investors burned Appeal last June, Clarke clams up. “People He tells me that in his chambers, he is O’Connells [North Richmond Street, by the Ponzi schemes of fraudster US who are judges are part of our system, Frank Clarke: ‘Certain has a book of laws called Wiley’s Judica- Dublin], Peter Kelly is O’Connells, I’m stockbroker Bernie Madoff. and I think we all need to stand togeth- ture Acts which date from the 1870s. The Drimnagh Castle. Of course, the cohort Seen as socially liberal, Clarke was the er,” he said. categories of litigation legislation was responsible for creating from whom judges are chosen tend to lone dissenter in a panel of seven judges have become too expensive the High Court structure of today. “If you be from a slightly better off background in a surrogacy action before the Supreme look at the rules in Wiley’s Judicature Acts than average, but I think the extent to Court three years ago. The majority found The process of for ordinary people’ and if you look at the rules today there which that is so is exaggerated,” he says. the woman who gave birth to the child judging Picture: Fergal Phillips is in many areas a very striking resem- Clarke says he fell into law. He had no was legally entitled to be registered as the blance. I sometimes comment that one idea what he wanted to do with his life infant’s mother rather than the woman Former Rehab chief Angela Kerins’ case of the biggest differences is in Wiley the when he left school. He just knew he who had provided the genetic material. against the Public Accounts Committee numbers are Roman and we use Arabic, wanted to attend university. He was the Will these tendencies come to the fore and the never-ending fallout from the a very radical change.” first person in his family to do so. in the court under his leadership? Moriarty Tribunal are among the cases Noting the success of experiments Being numerate, he chose to study listed this term in the Supreme Court’s such as the Commercial Court, which Maths and Economics at University Col- diary. It may be some time before any drastically reduced court waiting times, lege Dublin. While there, he became in- Calibre of judges landmark constitutional case puts a he is hopeful a root and branch review volved in debating and was drawn to the Clarke shares what is a common view stamp on Clarke’s time as Chief Justice. of civil procedures could eradicate some law. In second year, he started attending among lawyers these days: that pres- As we are sitting in the conference outdated practices that are no longer fit Law lectures and passed the King’s Inns tige appointments to the bench have room of the court, it seems apt to ask for purpose. His ambitions tie in with entrance exams to study to become a been somewhat lacking in the past de- how the judges go about the collective the review work on civil procedure cur- barrister. cade. While he offers the usual platitudes decision-making process. Clarke no- rently being undertaken by a committee “Personally, I never felt in any way about front-rank barristers and solicitors ticeably livens up. “It’s funny there has chaired by his High Court colleague Peter disadvantaged,” he says. “Maybe I was not automatically making the best judges, been very little said about the process.” Kelly. lucky and around at the right time. The he admits the recent inability to reel in In the US Supreme Court, the tradition “I think it needs a root and branch re- legal business was expanding in the 1970s the legal elite is a concern. is that the senior judge, the chief justice view but, as I said yesterday, some things when I was called to the Bar.” “I think there has been a problem re- normally, expresses their views first and that you could change would take up He believes it was a gentler and more cruiting from the very top of the practis- it goes around the table in order of supe- back up resources to be able to do them optimistic era. Most of the students who ing professions. I think there is no point riority, Clarke says. right as well. It’s not just a matter of went to the Bar lasted the distance. Today, pretending that isn’t so,” he says. In Ireland, it is the direct opposite. The changing the rules. For example, I made the attrition rate is notoriously high, as it No prizes for guessing why. Pay was most junior member of the Supreme the point that in the North, they have six can take years before a young barrister cut after the 2011 referendum, and pen- Court speaks first, in case they may be masters of the High Court who can do makes a red cent. sions were changed to mature after 20 swayed or intimidated by more senior administrative things before cases get Double-jobbing is common, and so is years, rather than 15 years as they had colleagues. Once everyone has had a turn, hanging around the Law Library pretend- been previously. “I also think the fact it becomes “fairly freestyle”. ing to look busy. It can be soul-destroying that people perceived rightly or wrongly Judgments are then assigned to spe- for young men and women who have that judges were sort of being beaten up cific judges. When the drafts are ready the luxury of an affluent background by the political system hasn’t helped,” they are circulated internally to allow for with financial supports. Whip away that Clarke says. comments. This sparks a paean to an old safety blanket and the risk can seem too After the referendum, the salary of a colleague, Ms Justice , who much to take. newly-appointed Supreme Court judge retired from the court earlier this year The Denham fellowship was an initia- was set at €178,608, a High Court judge and chaired the Citizens’ Assembly on tive by Clarke’s predecessor to address at €168,000, a judge at abortion. The judiciary has the barriers to entering the profession. €127,908 and a District Court judge at “One of the great reasons, of many, for It is one he wholly supports. €111,698. The salary of the Chief Justice missing Mary Laffoy was she had an eagle perhaps felt a Three other legal titans who took the was set at €227,168. eye for finding things that you might have same path as Clarke, from Arts in UCD to Yet Irish judges, along with their coun- missed. In fact, if you got an email back bit beaten up in the Bar in the early 1970s, were barrister terparts in Norway and Britain, remain from Mary saying she had no comments, and senator Michael McDowell and judg- the highest paid, according to a Council it wasn’t because she hadn’t read it: you recent times es Adrian Hardiman and Kevin Feeney. of Europe study last year. actually felt a slight glow of pride that The last-named pair both died unexpect- Clarke is hopeful that the rowing back you’d actually written something that edly in recent years. of Fempi (Financial Emergency Measures even Laffoy couldn’t find a mistake in. It Clarke toyed with politics for in the Public Interest) cuts and perhaps a didn’t happen often, I have to say.” a while, campaigning for Dublin South quieter political climate may encourage When the court is split, some decisions the weight of delay. or Constitutional importance. Now as to court to make sure they run smoothly. West TD Jim Mitchell and writing speech- some of the front-rank talent back to really are a knife-edge thing. Clarke knows exactly what he wants a short-term, stopgap measure, it is the We have one.” es for Garret FitzGerald. He also had an the bench. “Certainly, there have been cases as a long-term solution, four extra Court turn of the Supreme Court to help out While satisfied that the dark days of unsuccessful run at the Seanad in 1980. He seems unfazed by some of the more where people had second thoughts,” of Appeal judges. Assuming the current with the lower court’s workload. retrenchment are happily over, just how Instead, he went into law. He became a lurid attacks on the judiciary by Shane says Clarke. “I think it would be a bad complement of High Court judges is much extra money will be invested in leading practising com- Ross, including his outburst last year thing if you didn’t. There are cases where maintained, that would cost the taxpayer the Courts Service is another matter. Last mercial and constitutional law until 2004 about the need for a register of interests everyone knows the arguments and ei- an extra €700,000 per annum adding to Court reform year, gross expenditure was €112 million. when he was selected for the bench un- in case judges might forget their oath to ther side is evenly matched. the overall judicial pay bill of €24 million. There are other drums to beat. Right at “I’d be very surprised if Paschal Dono- der the Fíanna Fáil/PD coalition. administer justice without fear or favour. “I’ve said to colleagues on occasion, It is a big ask. Nothing has been promised. the top of Clarke’s to-do list in his ad- hoe woke up last night and said ‘Oh my In that role, he primarily oversaw cases “I suppose the one thing judges come in cases: ‘I probably could have almost “This isn’t asking for that which you dress last Tuesday was “practical access God, I haven’t given the courts enough in the commercial division of the High to realise is that things get said in politics as easily have written the judgment on know you’ll get,” he says, laughing. to justice”. It is a beast of a topic, one that money. We’ll put an extra 10p on the Court before he was elevated to the Su- that maybe we are better off keeping out your side.’ It’s a close-run thing but, on “I think realistically in appellate courts, is all too often deemed intractable and cigarettes and give them another €100 preme Court in 2012. He presided over of,” he says. balance, I take this view.” it’s not a good idea to have judges sitting left to hand-wringing legal academics million’.” more than three days a week because to worry about. Frankly, it seems brave they need reading time and they need to get stuck in. Elites m writing time.” The idea would be to have “A speedy court hearing is part of it, but 17 p two panels of three judges sitting every I think money is the single biggest issue. The perception of the bar and by exten- 4 20 - day, which requires ten judges. Certain categories of litigation have be- sion the judiciary is of an elite. Clarke is r e m ear The Court of Appeal was created in come too expensive for ordinary people.” not of that mould. Born in 1951, he grew a ob 0 2014 in order to allow the Supreme Court The diagnosis is easy; the cure is a lot up in the Dublin suburb of Walkinstown t 1 to focus on cases of exceptional public more difficult. The brushstrokes used by and attended a nearby Christian Brothers c | O ll th a B2C 4 H y y a t d n tacts that co-founders it again nine days later after and ultra-confident. His s Declan Kelly and it transpired the emails con- appearances on the floor of e ou n C enjoyed with Bill and Hillary tained nothing of interest, the Congress and his altercations d d Clinton, it was inevitable that damage was done. Clinton’s with reporters were legend- e W for Abedin’s overlapping jobs lead in the polls had crumbled ary. Long before Trump came x and the potential for multi- and Donald Trump became to Washington and threw the e ple conflicts of interest would president. rulebook of political decorum W return to haunt the Clinton Abedin blamed herself for in the shredder, Weiner was campaign. the Comey bombshell. “She’s cheerfully ripping pages out , the Re- more prone to melancholy of it. publican chair of the Senate introspection than Hillary During a congressional Wexfords B2B / Judiciary Committee, led a Clinton, so I would say ab- debate over health funding lengthy and ultimately futile solutely she did and probably for 9/11 first responders, he attempt to prove that Abedin’s still does,” a senior campaign excoriated his GOP opponents work within the State Depart- staffer told this newspaper. for their cowardice in hiding Networking Event of the Y ment, for the Clinton Foun- “She was completely flattened behind procedural rules to dation and for Teneo, violat- by it, by the thought that she stall it. ed conflict of interest rules. or her husband could have Of all the congressional With hindsight, his campaign cost [Clinton] the White performances I have ever seems almost quaint, but it House.” witnessed in Washington DC, triggered frustration within According to this source, it was easily the most memo- the Barack Obama adminis- Abedin stayed off the trail for rable: part showmanship, part County Wexford Business Expo is a must for anyone looking to start tration that Clinton’s mater- the final week of campaign- playing to the gallery and the or grow their business. Now in its 8th year, we have developed an nal relationship with Abedin ing, and arrived in Clinton’s cameras. But beneath the ver- blinded her to the political op- Brooklyn campaign HQ after bal pyrotechnics, it was hard unrivalled reputation as the South East’s leading business exhibition. tics of employee favouritism. the Comey bombshell “like a to doubt Weiner’s fearless The bigger torpedo was ghost . . . it was like someone commitment to providing fired just days before the had died”. help to New York police and Meet over 80 exhibitors from varied sectors election, and it was the one In her recent book What firemen who were perma- that many, including Clinton Happened, Clinton recounts nently debilitated by the toxic Leo Village with an array of start-up businesses herself, believe scuttled her how Abedin burst into tears fumes they inhaled on 9/11. presidential ambitions. upon discovering that Weiner Those who know Weiner FREE digital training with Google Garage Huma Abedin and Anthony Weiner married in 2010; Abedin’s rise to political prominence was as the eyes and ears of Hillary Clinton Getty/AP Abedin’s failure to delete was the casus belli for Com- say his relentless ambition, Clinton’s emails from a laptop ey’s re-declaration of war on energy and outsize ego was Foodie Corner with Wexford Food Family York courtesy of a second sex she shared with her husband Clinton. “That man is going to never going to be contained scandal. was her most catastrophic be the death of me,” Clinton by a seat in Congress. Not- Supporting Business Acting Responsibly Why would this intensely lapse. Podesta puts it simply: recalls her saying. withstanding the disgrace of private and previously un- she was working 20 hours According to Clinton, she his 2011 sexting scandal, in Free to Attend knowable woman allow the a day on the campaign trail, never blamed Abedin. “She 2013 the mayorship of New world to witness her finding and something had to give. A had done nothing wrong and York beckoned. It seemed this Live Broadcast from South East Radio out in real time, about her careless oversight had disas- was an invaluable member of would be the first step in his husband’s further betrayals? trous consequences. When my team,” she wrote in her political rehabilitation. Then Spot prizes, giveaways and celebrities What Clinton thought of her her husband’s pornographic book. “I stuck by her the same by his own calculation, the protégée’s decision to reveal sexting of the schoolgirl was way she has always stuck by governor’s mansion, and pos- all is unclear, but it was an revealed, the FBI swooped on me.” sibly the White House where Join us for 3 exclusive Google Garages unhelpful and tawdry distrac- the New York apartment she In a way, Clinton had only they would certainly make tion at best. shared with her husband and herself to blame. She pushed history as America’s First Shortly after Weiner’s first seized their laptop in search Abedin and Weiner together, Couple, a Jewish man and a Reach New Customers Online 10:00 - 11:00 sexting scandal broke in 2011, of Weiner-related criminal concerned that her dedicated Muslim woman. Abedin took a sabbatical and, activity. young aide lacked a personal Weiner’s political career is Tell Your Story Online 12:00 - 13:00 with Clinton’s support, re- In an unexpected twist, life, urging “you young peo- as dead as his marriage. He turned to New York and tried they found some old Clin- ple” to go out for dinner or will emerge from prison in to save her marriage. But af- ton emails on the machine. drinks after a long day in Clin- 2019 as a registered sex of- Know your Business with Google Analytics 14:30 - 15:30 ter the birth of her son, she Without pausing to determine tonland. At the time, Weiner fender and a political and so- also ill-advisedly took a job whether they were duplicates was a young congressman cial pariah. Abedin’s future is as a consultant with Teneo, a or just benign exchanges be- and a rapidly rising star within less certain, but she is likely To reserve a stand please contact eve nt organiser Katie O’Connor private consulting firm which tween Abedin and Clinton, the Democratic Party. to remain in the Democratic has since fallen out of favour FBI director James Comey an- Like a mother who thought political orbit. “She [Clinton] on 053 91 22226 or [email protected] with the Clintons. nounced just 11 days before she had found a good catch had great ambitions for Abe- Clinton has been guilty Americans went to vote in the for her daughter, Clinton en- din, still does,” former Clin- Join Us @ of many lapses of judgment most brutally divisive presi- couraged Abedin to revise her ton adviser Sheryl Mills said www.wexfordbusinessexpo.ie during her career; a mentor dential campaign in memo- initial assessment of Weiner recently. Also Sponsored by #wexpo with better-tuned political ry that he was reopening the as “a total jerk”. When they Another source close to the and ethical antennae would criminal investigation into married in July 2010, Bill Clin- Clintons put it more succinct- have advised Abedin against Clinton’s use of a private email ton officiated at the wedding. ly. “Huma is Hillary’s legacy. it. Given the extensive con- server. By the time he closed Weiner was brash, tough She must survive.” TheSunday Business Post July 9, 2017 businesspost.ie

PERSONAL FINANCE INVESTMENT TECHNOLOGY Money Plus MOTORS RECRUITMENT Mobile’s newest generation predicting the arrival of the 5G network page 6

Special A TSUNAMI OF report REPOSSESSIONS?

For the past three months, Francesca Comyn has travelled Ireland examining the coalface of a looming repossessions crisis. This is her report

Paul Fetherstonhaugh enters the packed court just after 10am, he immediately puts the repossession cases back until midday, in order to prioritise family law matters. The crowd thins out. Maureen leaves the building for a while. As is usual in any At the heart of Francesca Comyn court sitting, there is plenty of hanging Legal Affairs around to be done. The neighbour is left behind. Correspondent When noon arrives, Fetherstonhaugh rattles through the callover of property business in Ireland aureen (not her cases. There are 62 repossession mat- real name), a ters on the list. Nine have been brought woman in her by Permanent TSB, 15 by KBC Bank, 12 late 50s, has just by , 11 by EBS, five by caught sight of a AIB, two by Shoreline Residential, two neighbour and by Pepper Finance, one by ACC Bank, it is causing three by Mars Capital and one by Home her some dis- Funding Corporation. comfort. She is standing in the foyer of The county registrar either grants a MPortlaoise courthouse, several minutes hearing date to the fund or financial in- before the callover of housing reposses- stitution seeking repossession or adjourns sion cases. As someone who has tried to the matter (for the umpteenth time in shield her children from the extent of some instances) to allow the mortgagors a her mortgage woes, she is keen to avoid bit more time to get their affairs in order. familiar faces and potentially awkward Full hearings are sent before a Circuit conversations. Court judge. Maureen’s offspring are all adults. They In some cases, adjournments are made know their parents are in debt, but they on consent between the parties. do not know that the bank has taken the matter to court, or that she and her ✽ ✽ ✽ husband are at risk of losing their home because they used it as security against he explosion of repossession a business loan. She may come clean at cases is a depressing aspect of some point but, for now, she is loath to modern Irish life that has been worry them. going on for almost a decade. If There are thousands of homeowners in the mix of court cases is cur- a similar position. Central Bank figures The explosion of Trently weighted in favour of banks over for the first quarter of 2017 showed that vulture funds, that is partly because there 53,000 residential mortgages were in ar- repossessions is a time lag between what happens in rears of more than 90 days, representing the economy and what happens in court. 7 per cent of all accounts. In addition to is a depressing The big tranches of non-performing this figure were 14,367 buy-to-let mort- residential loans snapped up by pri- gages, with an outstanding balance of aspect of modern vate equity giants Lone Star, CarVal and €4.2 billion. Irish life that has Goldman Sachs are beginning to trickle Throw in the husbands, wives and through the system, but most have yet to children of account holders, and you’re been going on for be reconciled. And the process, once it talking about a lot of people. hits court, can drag on for years. Portlaoise Circuit Court on a given day almost a decade The Central Bank figures reveal a steady is just a taster of the chaos embroiling decline in long-term arrears since the so many lives. When county registrar peak of the crisis in 2013, when more than 99,000 residential mortgage accounts were over 90 days in arrears. Restructur- ing targets were imposed on lenders to address non-performing loans. Already, Index some of these 120,894 restructured loans Investment 2-3 Careers 10 are creaking with 13 per cent failing to Repossessions 4-5 Recruitment 11 meet the revised terms. There is a real fear of an aftershock. © 2017 KPMG, an Irish partnership Technology 6-7 The Week The European Central Bank is turning Motoring 8-9 In Business 12 the screw on Irish banks to resolve the to page 4

2806_Sunday_Busines_Post_Island_Ad_Jun17.indd 1 30/06/2017 11:22 TheSundayBusinessPost July 9, 2017 4 Mortgage crisis Money Plus They’ll sell to the people with the Hiace vans who won’t have any compunction about sending out the sheriff. I think there’ll be a tsunami of repossessions

from page 1 a dozen solicitors acted directly, or on out evidence they had been tackling their open sore of impaired mortgages. KBC some form of proxy basis, for the various mortgage arrears. They appeared to re- announced last month that it was consid- funds and banks. ceive a less sympathetic ear. ering a partial sell-off of distressed loans When cases hit court, this inequality One man in his 40s, his voice quaver- Lee Wellstead pictured at his to clean up the books as its restructur- of resources is so blatant that it uninten- ing, declared that KBC had failed to file former home in Castletown, ing process draws to a close. AIB sold a tionally serves to infantilise the debt- the requisite forms, meaning that the portfolio of non-performing buy-to-let ors and gives the proceedings a bizarre jurisdiction of the Circuit Court had not Co Laois: ‘There are good property loans to Goldman Sachs last classroom quality. been invoked. “We’ll remedy that for people in Ireland’ April for a reported €200 million; it has In Portlaoise, as their names were you,” Fetherstonhaugh replied quickly, several billion more on its books. Per- called in turn, the lay litigants approached and set a hearing date for October. Picture: Dylan Vaughan manent TSB appears to be holding back the bench and did their best to set out A man bringing a High Court action on a sale, for now. their circumstances. Most were fairly sea- over claims that he and his wife were For those in hock to the banks, the time soned, but a few were new to court and allegedly hoodwinked by Bank of Ireland to negotiate may be nearing an end. It looked a bit baffled by the proceedings. sought an adjournment of his case, and seems it is only a matter of time before The cursory nature of the callover was told that his voice was “bouncing the remaining mortgage loans will be meant that only fragments of people’s off the court speaker”. Again, a hearing bundled up and sold on. stories emerged. date was promptly set. This may well lead to a secondary A woman in her 40s claimed that she High arrears were the most commonly explosion of repossession cases as the had been making monthly payments cited aggravating factor used to secure a buyers, most likely vulture funds, move of €1,000 to EBS for the past three and quick hearing date. “It’s an awful lot,” in to ensure quick and hefty returns on a half years, including an extra €100 to was Fetherstonhaugh’s response to one their investments. Throw into the mix work off arrears of €24,000. The court woman who was behind by €138,000 an escalating housing and homelessness heard the arrears had accrued at a time over three accounts. crisis, plus skyrocketing rents in urban when her partner was out of work, but “I’m making payments,” she said, ex- areas, and the result is overwhelming that he was now back in employment. plaining that she was seeking a personal kicked a good few down the road, giving human misery. The solicitor acting on behalf of EBS was insolvency arrangement. debtors breathing space. If there is another wave of reposses- not in a position to affirm or contradict “They would want to be significant,” sion actions, another batch of poorly- her claims. he replied. ✽ ✽ ✽ equipped debtors will once again find Fetherstonhaugh opted to take “the In the course of the list, the county themselves mired in complex legal pro- lady at face value”. “She’s doing every- registrar referred several debtors for en- olicitor Julie Sadlier is one of cesses which leave them literally at the thing she can to rescue this,” he asserted, gagement with a representative from the the few lawyers working at the mercy of a court. Because of budgetary before warning her that if the bank could Money Advice and Budgeting Service coalface for mortgage debtors. constraints, litigants must have less than show contrariwise at a later date he would (Mabs), sitting in a pew at the side of As a member of the Phoenix I got a call from €18,000 disposable income per annum to take a dim view of it. the court. Project, she gave professional qualify for civil legal aid, and they must A lay litigant in his 30s, dressed in a The Abhaile scheme, launched last Ssupport to families at risk of repossession. somebody who have some prospect of winning their case. suit, complained bitterly that Bank of year, also provides for a duty solicitor She has since returned to private prac- Borrowers in trouble are seen as a lost Ireland refused to engage with his par- to be in court to afford debtors in risk of tice in Limerick, but her commitment has found that cause and, in the vast majority of cases, ents, one of whom is ill, in their efforts losing their homes, some basic free advice to helping distressed mortgage holders if they had not they simply do not qualify. They have to to settle or restructure various debts un- about their legal situation. A voucher remains strong. fight alone. der a personal insolvency arrangement. system entitles the borrower to a couple For her, the proceedings witnessed in been penalised Fetherstonhaugh directed “meaningful of consultations with a lawyer, but it does Portlaoise court are par for the course. engagement” from the bank, and called not afford legal representation. Maureen, who met Sadlier through the in their tracker, The lay litigants the case on for hearing in October. On this occasion, there was no lawyer Phoenix Project, is one of her clients. Bar one or two exceptions, the distressed There were a few debtors, more stub- present to fulfil this limited role. They talk over a cup of coffee. the way so many borrowers who appeared in Portlaoise born and defiant in their attitude, who By lunchtime, the callover was over. It In Sadlier’s view, the lack of legal rep- Circuit Court in recent weeks were with- raised points of law, waved High Court had taken Fetherstonhaugh just under an resentation afforded distressed borrow- other people have out legal representation. By contrast, half judgments or sought adjournments with- hour to sift through the case load. He had ers has had an enormously detrimental been, they’d have impact in repossession cases. Arguments and defences which could have been been able to pay raised and developed over time, with Fergus Gallagher, the appropriate legal backing, have fallen their mortgage by the wayside. Nearly a decade into this Dublin County Sheriff crisis, she is of the view there is a dearth of Picture: Maura Hickey relevant expertise in the legal profession. By way of example, Sadlier refers to they offer legal protection to distressed Shaughnessy, John, €543,795 WEXFORD Coolock, Dublin, died October 12, revelations last year that thousands of borrowers. Not everyone can qualify. At Judgments New Line, Clarinbridge. Plaintiff: 2010, left €758,489. McAuley, Kenneth, €78,311 mortgage customers were wrongly de- least half of a debtor’s creditors, secured KBC Bank Ireland, Dublin. Reg Date: 7 The Laurels, Clonard, Wexford. Ashmore, Christopher, retired Jun 22, 2017 nied the right to a tracker or denied the and unsecured, representing at least 65 CARLOW Delivery driver. Plaintiff: Collector checker, Marine Drive, Sandymount, Shaughnessy, Olive, €543,795 General. Reg Date: Jun 21, 2017 Dublin, died May 31, 2015, left option of one. per cent of the total debts, need to agree Forde, Ignatius, €81,790 New Line, Clarinbridge. Plaintiff: €755,505. 54 Burrow Street, Carlow. WICKLOW “I got a call from somebody who is to the deal in the first place. KBC Bank Ireland, Dublin. Reg Date: Dempsey, Noel, plumber, Accountant. Plaintiff: Collector Kelly, Noreen, €61,850 through the other side of repossession Also, the arrangement requires debtors Jun 22, 2017 Bawnskeha, Thomastown, Kilkenny, General. Reg Date: Jun 21, 2017 103 Seacrest, Bray. Coffee shop and has now found if they had not been to have reasonable living expenses to KERRY died January 11, 2017, left €744,977. CLARE operator. Plaintiff: Collector General. penalised in their tracker, the way so avoid living at a subsistence level, which Blackwell, Frank, €61,484 Reg Date: Jun 22, 2017 Cody, Michael, retired shopkeeper, Sheehan, Anthony, €30,935 Brookfield Park, Rush, Dublin, died many other people have been, they’d typically works out about €1,500 a month Rathoneen, Ardfert, Tralee. Farmer. O’Reilly, Marian, €61,850 Lissycasey, Ennis. Haulier. Plaintiff: Plaintiff: Collector General. Reg Date: April 27, 2016, left €741,366. have been able to pay their mortgage,” for a couple with no children. Collector General. Reg Date: Jun 21, 3 Glendale Drive, Bray. Coffee shop Jun 22, 2017 Gallen, John Joseph, linen she says. Ironically, there are people with a 2017 operator. Plaintiff: Collector General. Melb Industries Unlimited Company, Reg Date: Jun 22, 2107 manufacturer, Hampton Street, But it is too late now. They have lost mountain of debt trouble who do not CORK €42,072 Balbriggan, Dublin, died March 22, their house. In Maureen and her hus- earn the requisite income to qualify for McSweeney, Anne, €1,147,555 Clashmealcon, Causeway. Plaintiff: 2017, left €737,654. band’s case, Sadlier claims there was personal insolvency. These people face Cloughlucas, Ironmines, Mallow. Collector General. Reg Date: Jun 23, interest overcharging on the mortgage repossession and bankruptcy and they its code of conduct on mortgage arrears Businesswoman. Plaintiff: AIB 2017 Wills These extracts are from the official loan. Their side is embroiled in an affida- have very little legal aid – two consul- to provide a “strong consumer protec- Mortgage Bank, Dublin. Reg Date: Jun Corcoran, Joseph, €33,692 publication of judgments registered since 20, 2017 Kilballylahiff, Castlegregory. Connolly, Ann, retired company last week. Publication does not imply an vit battle with the bank at the moment. tations with a solicitor, maximum - to tion framework to ensure that borrowers McSweeney, Joseph, €1,147,555 Businessman. Plaintiff: Stephen director, Red Mills, Goresbridge, inability to pay and does not necessarily All other avenues were explored, in- assist them. But full legal aid is available, struggling to keep up mortgage repay- Cloughlucas, Ironmines, Mallow. Carty, Brian Clarke, Paul Dobbyn, Kilkenny, died November 10, 2016, mean that the judgment has not been cluding a proposed personal insolvency under the Abhaile scheme to borrowers ments are treated in a fair and transparent Businessman. Plaintiff: AIB Mortgage Andrew Doyle, Mary Dunne, William left €2,227,796. paid or satisfied. Publication indicates that a judgment has been obtained and arrangement (PIA) to restructure and looking for court reviews of personal manner by their lender and that long term Fogarty, David Maughan. Reg Date: Furlong, David, retired shop owner, Bank, Dublin. Reg Date: Jun 20, 2017 papers securing its release have not Jun 23, 2017 Mount Prospect Avenue, Clontarf, write down the couple’s debts. The PIA insolvency arrangements that have been resolution is sought by lenders with each Applebe, Fergus, €649,922 been registered. Registered judgments did not pass muster with their creditors, rejected by creditors. of their borrowers”. Ivy Lodge, Bandon. Solicitor. Plaintiff: LIMERICK Dublin, died August 11, 2016, left are not always for debts. Proceedings KBC Bank Ireland Plc., Dublin. Reg €2,147,030. may have been genuinely contested including creditors of their failed cleaning As for the banks, the sands keep shift- In Irish Life & Permanent v Dunne, O’Neill, Cornelius, €820,784 or appealed, and judgments may be Date: Jun 26, 2017 Ballynoe, Caher Road, Mungret. Johnston, Monica, retired civil business. ing. Commercial imperatives change, the High Court found a breach of the servant, Trimleston Road, secured against defendants in a repre- DUBLIN Newspaper courier. Plaintiff: sentative, rather than personal, capacity. “I was going to give them everything, mortgage loans are restructured, then code would be a reason to deny a bank Collector General. Reg Date: Jun 23, Booterstown, Dublin, died November They may have been taken arising out Marley, Philip, €1,058,080 including my [private pension] lump sum they are sold to big funds. Borrowers, an order of possession, but the case was 2017 18, 2016, left €1,715,376. of indemnities, guarantees or bonds, 33 Claremont Court, Glasnevin, which would have left me with nothing, constantly told to engage and not bury overturned on appeal to the Supreme Ledwith, Sean, retired farmer, which may have obliged the defendant Dublin 11. Businessman. Plaintiff: 1. Cotter, Jayne, €52,757 Robinstown, Granard, Longford, died to underwrite the debts or obligations of but we were prepared to do it. They still their heads in the sand, can be left in Court in 2015 which found the code was Maven Capital Partners UK LLP, 2. 2 The Belfry, Ballyclough. Hairdresser. August 5, 2016, left €952,158. someone else. The judgments published turned it down. We would have been no-man’s land. not binding. Maven Income and Growth VCT plc, Plaintiff: Collector General. Reg Date: here are extracts from the list published 3. Maven Income and Growth VCT. Jun 21, 2017 Ruddy, Mary Frances, civil servant, in Stubbs Gazette. If you would like to living on fresh air the rest of our lives,” “It’s impossible for an ordinary person The ruling has left very little wriggle Reg Date: Jun 23, 2017 Hanley, Timothy, €50,214 Genista Cottage, Drishoge, Oldtown, subscribe to the full listing, telephone Maureen said. to understand it because there isn’t a logic room for litigants. If it was considered, Dublin, died December 26, 2016, left 01-6725939 Henderson, David, €49,211 Lower Main St, Kilfinane, Co Sadlier believes the value of their home at this end. It isn’t about trying to help as a matter of policy, the law governing €828,822. 24 Galtrim Grange, Malahide. Limerick. Coal merchant. Plaintiff: worked against them. “It’s unfortunate. you out, it’s about some set of market the circumstances in which financial Businessman. Plaintiff: Collector Collector General. Reg Date: Jun 22, McKenna, Noel, retired manager, If you were another hour south, your criteria,” Sadlier said. institutions may be entitled to possession General. Reg Date: Jun 23, 2017 2017 Templeville Drive, Terenure, Dublin, died November 16, 2016, left property would be a lot less valuable and was “too heavily weighted” in favour of Scanlon, Eoin, €46,944 LOUTH €790,553. You can now carry out FREE you’d get the deal,” she said to her client. the lenders, it was for the Oireachtas “to 23 Woodville Grove, Woodville McCann, Aaron, €128,159 credit checks and submit debts Kennedy, Marie TJ, housewife, Eden PIAs were introduced under 2012 leg- The fightback recalibrate those laws”, Mr Justice Frank Downs, Lucan. Businessman. Canal Road, Mooretown, Dromiskin, for collection through the Park Avenue, Dundrum, Dublin, died Plaintiff: Collector General. Reg Date: Dundalk. Plaintiff: Motor Insurers’ new StubbsGazette website at islation as a less nuclear alternative to When it comes to the legal fight, there Clarke said. August 27, 2016, left €789,788. Jun 23, 2017 Bureau of Ireland, Dublin. Reg Date: www.stubbsgazette.ie. Tel: 01- bankruptcy for debtors facing at least are very few chinks in the system’s ar- Sadlier was involved in drafting the GALWAY Jun 26, 2017 Brennan, Kathleen, Brookville Park, 6725939 five years of insolvency. When successful, mour. In 2013, the Central Bank revised Keeping People In Their Homes bill in- TheSundayBusinessPost July 9, 2017 Money Plus Mortgage crisis 5

Edmund Honohan, Master of the High Court Picture: Bryan Meade

to get vacant possession, get any bodies down on the property was gone with under Article 6, not just participation but off the premises and immediately hand his home. effective participation.” it over to the bank or receiver who has Efforts to negotiate with the bank, in- When he asked one woman in his instituted the action. They pay him for the cluding an offer to rent out stables and court why she had not appealed a repos- job, including any extra licensed security sell a site field, had failed to bear fruit. session order sooner, she told him with operators that may be required. The passage of time has not healed the some embarrassment that her former Most evictions run smoothly. An Garda scars. The former mechanic, who is from solicitor had said there was nothing more Síochána is alerted only if a breach of the England originally, finds the YouTube she could do, other than find a rich man. peace is anticipated. Gallagher makes footage of the aborted eviction almost Honohan agrees with Sadlier that the sure to attend in person if a repossession unbearable to watch. legal expertise in this area of law, essen- is likely to be difficult or contentious. He While Wellstead has a place to live, tially an offshoot of conveyancing, leaves believes in getting the job done in one his woes are far from over. The proceeds a lot to be desired. visit, even if it takes the best part of the from the sale of the property did not He is also astonished at the dearth of day. “Generally speaking, we go once cover all of his bank loans, and he is sociological data exploring the reasons and do it, no matter how long it takes, still being pursued through the courts why thousands of mortgage holders have because going back is never going to be for around €54,000 in unsecured debt fallen into deep arrears. easier than the first time,” he said. and legal costs. “I go into a supermarket or shopping Gallagher says it is not his position to “They’re trying to get money off me mall and I look around and ask: ‘How ask questions about the background to and I’m on the social,” he said. The legal many of these are hanging by a thread?’ a repossession, the quantity of the debt fight goes on, including a recent unsuc- I don’t know. The ones who come into or the history of the parties. However, cessful attempt to have the possession or- my court seem normal enough,” he said. he has a modicum of discretion in terms der deemed void on jurisdiction grounds. Honohan has, however, been mak- of how quickly he executes the order. As a lay litigant, he finds it hard to wade ing suggestions to government for many “It’s never nice to see people, espe- through the complex legal system and years on how to alleviate the crisis. cially with families, having to leave what be taken seriously in court. He feels his In a letter to the late Brian Lenihan jr they thought was a secure home,” he house was stolen from him. in 2010, he proposed that the regu- said. “It’s disgusting, actually, that they can lated banks should club together, like He tells of how a woman contacted gain all these orders and compel people the Motor Insurance Bureau of Ireland him recently to inform him that her two to do this. It affects your mental health, which deals with claims from uninsured children finished school at the end of your financial wellbeing, every aspect drivers, buy out sub-prime mortgages June and they had a new place to move of your life,” he said. and allow distressed mortgage holders into on August 1. He was happy to hold to stay on in their homes as caretakers. off moving on the property until then. ✽ ✽ ✽ He has also previously urged the state to Some are victims of rogue borrowers nationalise repossessed homes. who sublet their properties. Tenants who usic blares from the of- In Honohan’s view, we have reached a presume they have a 12-month lease and fice of Edmund Hono- cliff and the near future is bleak. dutifully pay the rent every month get han, Master of the High “The answer is in the realms of ac- the shock of their lives when an eviction Court. A highly animated countancy. The banks have been writing letter addressed to the occupant arrives presence, he switches it off the bad loans. They have got a load of from the sheriff’s office. It is a recurring Moff and gets stuck into a wide-ranging junk mortgages at the bottom, and now problem. discussion about the housing crisis. they are saying: ‘The ECB is telling us to “They receive the letter in a panic, and As a senior counsel turned court offi- get these off the books.’ So they are going I explain to them I can give them a little cial who handles preliminary, procedural to sell to the people with the Hiace vans time but not very much. They generally matters in High Court actions, he has who won’t have any compunction about manage to make their arrangements, but witnessed the sharp end of the mortgage sending out the sheriff. I think there may it’s not ideal for them obviously,” he said. crisis and has been an outspoken critic be a tsunami of possession orders.” “They are dealing with a crook.” of the government’s failure to protect The “people in the Hiace vans” are, of Homelessness is a reality of Gallagher’s vulnerable people facing repossession. course, the vulture funds which current- job. “Often, they know they are going Honohan is seen as something of a ly hold around 6 per cent of residential to be homeless, and we’ll advise them debtors’ champion. He has been equally mortgages. to contact the local authority,” he said. critical of court processes and the refusal In recent months, Honohan has helped But, other than provide evictees with by judges and county registrars to apply draft a bill to create a sort of friendly fund, a letter that will enable them to apply for EU consumer law to mortgage contracts, which will buy up distressed mortgages social housing, there is nothing more the the irregular legal paperwork sometimes from the bank in an open sale supervised sheriff can do. put forward by the banks in repossession by a court. cases and the shoddy way lay litigants The National Housing Co-Op Bill has ✽ ✽ ✽ are at times treated. been put forward by Fianna Fáil’s John “I hear the most distressing stories McGuinness and independent TD Mattie ee Wellstead knows all too well of people being told to shut up and sit McGrath in a bid to find an effective and what it is like to go through down,” he said. “The right to effective fair solution for debtors and the banks. repossession. He was evict- participation. That’s a phrase used, not The model is different from David ed from his secluded country specifically in the European Convention Hall’s new I Care housing scheme, but house five years ago. on Human Rights, but it’s what the Eu- the aim is similar, in that it wants to pro- LThe first unsuccessful attempt to oust ropean court has said is your entitlement vide a humanitarian business model to him from his home in Co Laois went viral keep debtors in their homes. on YouTube. The video shows the sheriff The alternative is spending millions troduced by Independent Alliance TD registrar. Everywhere else, there is an and Land Leaguer Ben Gilroy, backed by more from the public purse tackling the Kevin ‘Boxer’ Moran last February. The enforcer uncomfortable overlap where the county about 40 supporters, arguing it out at the housing and homelessness crisis. The idea is to change how the courts The granting of an order of possession for registrar may sign off on a possession gates of Wellstead’s former residence. The bill proposes to give the co-op, go about making decisions in reposses- a privately owned house is not the day order which he or she is then later paid to The crew arrived minutes before the based on crowdsourced funding, first sion cases, by giving greater discretion of reckoning. It is customary for a court enforce. This apparent conflict of interest sheriff did, and Wellstead says he had no dibs on mortgages when banks or vul- around the proportionality test, a strong to grant a stay against the bank or fund has led to a perception of bias among idea they were going to turn up. tures are willing to sell. The offer will tenet of EU law. The bill allows a judge or cleaning up bad debts from its books. some debtors. “There were a couple of guys living It’s never nice match the value of the property on the county registrar to consider the impact The knock on the door for the mort- So far this year, 49 execution orders in a derelict building in the arse-end balance sheet of the vendor. of home loss on a family, both physically gage holder comes later, when a court have been lodged with Gallagher, 34 of of Mayo,” he says. “They’d got up that to see people, Anticipating a struggle, Honohan told and mentally. grants a separate order of execution al- which have been executed. morning, walked I don’t know how many the Oireachtas Committee on Finance The bill is still kicking about, but Sadli- lowing the bank or receiver to move in. Nearly four years into the job, 2015 was miles to get a bus to Galway, and then a especially with last month: “They’ll say we’ve written er is fighting on other fronts. There are But not always. While banks want to by far the busiest year in Dublin county. bus to here. They got up about 20 minutes it down to very little, and I say you’ve legal challenges in the pipeline which secure their entitlements with a pos- The number of evictions executed soared after the sheriff had gone. For someone families, having got the tax breaks accordingly.” she is trying to push forward through session order, they are not so keen to from 58 in 2014 to 111 the following year, you’ve never met before! There are good The mortgage holder would become a choked system. They revolve around shove the little guy out on to the street. before dropping last year to 50. people in Ireland.” to leave what tenants of the co-op with an option to fluid interest rate clauses; tracker rates; a It is a reprieve from eviction and the Approximately 20 to 30 per cent of While the sheriff left on that occa- they thought was buy if their circumstances changed. If the European directive which obliges courts ultimate limbo. execution orders filed with his office sion, he returned three weeks later when vendor refuses the offer, the matter goes to assess contracts for unfair terms (a Fergus Gallagher has been the sheriff are subsequently withdrawn. The very Wellstead was out. Gardaí blocked off a secure home into compulsory purchase order territory, David and Goliath measure to protect for Dublin county since January 2014 fact of the order can be enough to bring the lane leading up to the house and with an arbitrator deciding the price. the small buyer), but is not being applied covering Fingal, South Dublin County a distressed borrower to the table for a the property was secured on behalf of Honohan again stresses that with the in Ireland; and proportionality tests for Council and Dun Laoghaire Rathdown. late round of negotiations with the bank. Ulster Bank. ECB heaping pressure on the banks to human rights to family life under the Property repossessions, both rental and Execution orders are valid for a year and Wellstead had defaulted on an get their houses in order, this is the time EU charter. mortgage related, make up a significant can be renewed for a number of years. €80,000 mortgage which was called to strike. “I’m told on good authority we Sadlier has experienced difficulties portion of his workload. Speculation about a possible future in 18 days after the last payment was due. have 15 months from now to do it, and getting financial experts on board to re- Dublin and Cork are the only counties blitz of possession orders is beyond Gal- An order for repossession was made in that means the banks are desperate,” view the figures, as it is a costly process. where the sheriff is not also the county lagher’s purview. The role of his office is 2009. The €100,000 deposit he had put he said.