Law Society Gazette May 2020 1

Law Society of Ir eland of Society Law 2020 May 4 No 114 Vol • GAZETTE SOCIETY LAW

ISSN 1393−6956 ga HOLD YOUR HORSES 05

9 771393 695029 landmark 1970Englishcase first ‘McKenzieFriend’inthe Barrister IanHangerwasthe I’ll bethere foryou Wartime neutralityand LAW SOCIETY Spanish trade

current coronavirus crisis remote courthearingsduring the The CourtsServicehasestablished Remote control ette employers explained to supportbusinessesand The Government’s initiatives Hand inglove €4.00 MAY 2020 gaLAW SOCIETY ette

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PRESIDENT’S MESSAGE STAYING CONNECTED adly, although not unexpectedly, COVID-19 Wage Subsidy Scheme and the COVID-19 has taken colleagues Pandemic Unemployment Payment and the from us and from their grieving Business Continuity Voucher has proved vital for families. We collectively share their practitioners. See the 27 March eBulletin, the 17 anguish and loss. April update, and p52 of this issue. In solidarity with those colleagues One area that continues to receive a lot of and their families, we must as a profession continue positive press is the comprehensive practical to lead by example and, at all times, place the guidance on making wills (see eBulletin, 22 March). Shealth and safety of our families, staff, colleagues and community at the centre of every decision Legal services that we make. The way in which we conduct our Many of us provide legal services to large or business has dramatically changed over the last small companies. Managing company compliance number of weeks. However, what has not changed requirements during the current public-health is my unwavering commitment to you and to the restrictions presents a challenge. In that context, profession. I issued guidance to assist solicitors advising companies on required meetings and electronic Imminent challenges transactions in my eBulletin on 31 March. From the outset of this crisis, I set about In addition, the Business Law Committee has establishing guidelines on insulating our practices prepared a guidance note detailing some of the by identifying imminent challenges to practice. precautionary measures that companies can take It is impossible to completely insulate against the in the lead-up to their AGMs and when convening unknown. It is, however, possible to anticipate directors’ meetings (see the 31 March eBulletin). future challenges and to prepare for these. An essential tool in my armoury is the welcome communication I receive from the profession identifying particular practice challenges as they WE CAN AND WILL WORK emerge. I have tried to keep the profession involved and updated in relation to all workarounds, and THROUGH THIS PANDEMIC. I continue to lobby where necessary. Active, meaningful communication is key. WE ARE UNITED IN OUR I would encourage all of you to review the RESOLVE TO DO SO eBulletins that have issued since the start of the coronavirus emergency, as these contain essential advice on running your business during this We can and will work through this pandemic. unprecedented period, practical guidance on the We are united in our resolve to do so. It is myriad of practice areas, and support about how increasingly important for lawyers to support you and your family can remain mentally healthy each other. By doing so, we can better serve the during this stressful period. legal profession and the public to whom we owe I wish to record my thanks to the many Law a duty. It is also increasingly important to remain Society expert committees and staff who have connected to your local colleagues and to the Law provided invaluable assistance to me in producing Society. I would encourage our bar associations the eBulletins. to remain in active contact with their colleagues, Included in the information available in the whether by social media or remote meetings. eBulletins is practical advice and guidance on For my part, my regular eBulletins will ensure remote technology (23 March eBulletin), as well as that I remain connected to you in a real and support for managing remote teams (28 March). practical way. As always, I can be contacted at MICHELE O’BOYLE, The updated position on the temporary [email protected]. PRESIDENT 2 CONTENTS??????? ?????? May 2020 Law Society Gazette gazette.ie PIC: SHUTTERSTOCK

LAW SOCIETY GAZETTE • Vol 114 No 4 I’ll be there for you Remote control Hand in glove Volume 114, Barrister Ian Hanger was the The Courts Service has established The Government’s initiatives first ‘McKenzie Friend’ in the remote court hearings during the to support businesses and landmark 1970 English case current coronavirus crisis employers explained number 4

gaLAW SOCIETY ette€4.00 MAY 2020 May 2020

Subscriptions: €65 (€95 overseas) HOLD YOUR HORSES Blackhall Place, Dublin 7 05 Law Society of Ireland Wartime neutrality and tel: 01 672 4828 Spanish trade fax: 01 672 4801 9 771393 695029 ISSN 1393−6956 email: [email protected] PROFESSIONAL NOTICES: see the ‘Rates’ panel in the professional notices section of this Gazette COMMERCIAL ADVERTISING: contact Seán Ó hOisín, 10 Arran Road, 34 Dublin 9; mobile: 086 811 7116, tel: 01 834 6891, email: sean@ lawsociety.ie. See the Gazette rate card online at www.lawsociety.ie/ gazette-rates HAVE YOU MOVED? Members of the profession should send change- of-address details to: IT Section, Blackhall Place, Dublin 7, or to: [email protected]

Editor: Mark McDermott FIIC Deputy editor: Dr Garrett O’Boyle Art director: Nuala Redmond Editorial secretary: Catherine Kearney Printing: Boylan Print Group, Drogheda

Editorial board: Michael Kealey (chairman), Mark McDermott (secretary), Aoife Byrne, Ken Casey, Mairéad Cashman, Caroline Dee-Brown, Hilary Forde, Richard Hammond, Teri Kelly, Patrick J McGonagle, Aisling Meehan, Heather Murphy, Ken Murphy, Andrew Sheridan

No material from the Gazette may be published or used without the permission of the copyright holder. The Law Society of Ireland can accept no responsibility for the 18 52 accuracy of contributed articles or statements appearing in this magazine, and any views or opinions expressed are not necessarily those of the Law Society’s Council, save where otherwise indicated. No responsibility for loss or distress occasioned to any person acting, or refraining from acting, as a result of the material in this publication can be accepted by the authors, contributors, editor or publishers. The editor reserves the right to make publishing decisions on any advertisement or article submitted to this magazine, and to refuse publication or to edit any editorial material as seems appropriate to him. Professional legal advice should always be sought in relation to any specific matter.

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A MAGAZINE FOR A HEALTHIER PLANET

CBP003337 Your Gazette uses carbon-balanced and FSC certified paper, from sustainable, ecologically managed forests. Visit www.carbonbalancedpaper.com and www.fsg.org. The magazine is 100% recyclable so, if disposing of it, place it in your green bin. 40 gazette.ie Law Society Gazette May 2020 CONTENTS 3

FEATURES

22 War horse 34 Reviewing the situation During the final years of World War 2, an Online customer reviews can make or break a business intriguing legal case involving the sale of ‘war – but can also break the law. However, they are a pivotal horses’ came before the Irish High Court and, means by which businesses attract custom. Michael subsequently, the Supreme Court. Barry Whelan O’Doherty vents his spleen mounts up 40 A tax on both fronts 28 With a little help from my friends Recent Tax Appeal Commission decisions bear thinking about when settling an employment dispute concerning The original ‘McKenzie Friend’, Ian Hanger, speaks a termination payment on retirement or removal from to David Mulligan about the groundbreaking case office, writes Jeananne McGovern that led to the establishment of the McKenzie Friend principle 46 Where is my mind? The practice of mindfulness gives us a chance to pause. We can only feel the solid ground under our feet when we stop rushing to the next moment, explains Barry Lee

46 28 50

REGULARS

4 The big picture 55 Briefing Standout photo of the month 55 Council report 56 Practice note 7 People 56 Guidance note 58 SBA report and accounts 12 News 59 Regulation 60 18 Comment Professional notices Viewpoint: Is Ireland failing small businesses 64 during the shutdown? Final verdict

50 Analysis 50 News in depth: Virtual courts are with us, but not every matter can be dealt with remotely 52 News in depth: Pandemic supports for self- employed solicitors 4 IN FOCUS May 2020 Law Society Gazette gazette.ie gazette.ie Law Society Gazette May 2020 IN FOCUS 5

THE BIG PICTURE

WHERE THE STREETS HAVE

NO NAME PIC: LEAH FARRELL/ROLLINGNEWS.IE A Dublin pedestrian sporting a face mask takes a stroll on a deserted O’Connell Street during the current COVID-19 pandemic. As we go to press on Thursday 30 April, 1,232 people have died, while there are now 20,612 confirmed cases of the coronavirus in Ireland LegalMindLegalMind Supporting Mental HealthSupporting Mental HealthLegalMindLegalMind and and Resilience Resilience LegalMind inin Supporting Mental Healththe Supporting Mental Healththe Legal Legal Community Community and Resilience Resilience Supporting Mental Healthinin the the Legal Legal Community Community and Resilience LegalMindinLegalMind the is aLegal is a confidential, confidential, Community independent, independent, low lo-costw-cost mental mental health health supportsupportLegalMindLegalMind for for solicitors solicitorsis a is a confidential, confidential, and and their dependants. their dependants. independent, independent, lolow w-cost-cost mental mental health health support for solicitors and their dependants. LegalMindsupport for is a solicitors confidential, and their dependants. independent, lo w-cost mental health TheThe support support is ais permanent a permanent support, support, based based in Ireland,in Ireland, and and will will be be supportThe support for solicitors is a permanent and their dependants. support, based in Ireland, and will be therethereThe for support for solicitors solicitors is a through permanent through any any support, personal personal based or professionalor inprofessional Ireland, challenges. and challenges. will be there for solicitors through any personal or professional challenges. Thethere support for solicitors is a permanent through anysupport, personal based or professionalin Ireland, and challenges. will be SolicitorsSolicitorsSolicitors can can call can call LegalMind atcall LegalMind at LegalMind at any anyany time time of oftheof the the day day day or or night,or night, night, from from from allall all thereSolicitors for solicitors can call throughLegalMind at any personal any time orof professionalthe day or night, challenges. from all overover Ireland,over Ireland, Ireland, and and talkand talk totalk ato tomental a a mental mental health healthhealth professional professionalprofessional about about about any any any issuesissues issues theySolicitorstheyover orthey theiror Ireland, theiror theirfamilycan family and callfamily may talk LegalMind at may may beto beafacing. be mental facing. facing. any health time professional of the day or about night, any from issues all they or their family may be facing. over Ireland, and talk to a mental health professional about any issues AfterAfter thisAfter this initial this initial initial conversation, conversation, conversation, solicitors solicitors solicitors may maymay then then then avail avail avail of of furtherof further further llow low- - they or their family may be facing. coscotAfter supportsscot supportss tthis supports initial – counselling, – counselling,– conversation, counselling, psychotherapy psychotherapy psychotherapy solicitors may or or psychologicalor then psychological psychological avail of further supports supports supports low - cost supports counselling, psychotherapy or psychological supports withinAfterwithinwithin a this30 a 30 kilometrea initial 30 kilometre kilometre– conversation, radius radius radius of theirof of solicitorstheir their home. home. may then avail of further low- within a 30 kilometre radius of their home. cost supports – counselling, psychotherapy or psychological supports within a 30 kilometre radius of their home. For more information visit: www.lawsociety.ie/legalmind ForFor more more information information visit: visit: www.lawsociety.ie/legalmind www.lawsociety.ie/legalmind AccessFor the more service information directly andvisit: talk www.lawsociety.ie/legalmind to a counsellor now on freephone: AccessAccess the the service service directly directly and and talk talk to toa counsellor a counsellor now now on on freephone: freephone: Access the service directly and1800 talk 81 to41 a 77 counsellor now on freephone: For more information1800 1800visit: 81 81www.lawsociety.ie/legalmind41 41 77 77 Access the service directly and1800 talk 81 to41 a 77 counsellor now on freephone: 1800 81 41 77 gazette.ie Law Society Gazette May 2020 PEOPLE 7 LAWYERS IN LOVE TIE KNOT IN LOUTH PIC: RITA SLATTERY PHOTOGRAPHY

Maeve with her new husband Ciaran

Human rights lawyer Dr Maeve O’Rourke married solicitor Ciaran Ahern at St Oliver Plunkett’s Church in Blackrock, Co Louth, on 4 January. The bride was given away by her father, RTÉ broadcaster Sean O’Rourke, and the 260-strong wedding party celebrated at Darver Castle, in Louth. The newly-weds met while study- ing law at UCD. Dr O’Rourke is currently lecturing at NUI Galway and is also a barrister at Bedford Row Chambers in London. Ciaran, meanwhile, is an employment law specialist with A&L Goodbody in Dublin and also tutors Law Society PPC students on the topic Maeve with her dad Sean O’Rourke HIS MASTER’S VOICE PAWS BUTTON PIC: LAFAYETTE PHOTOGRAPHY

Congratulations to Gabriel A Toolan (Walter P Toolan & Sons, Ballinamore, Co Leitrim) who – pre-coronavirus lockdown – received a master’s degree (with distinction) in Environmental Working from home can have both challenges and benefits, as one Law from Prof Patrick G O’Shea (president, University College Cork) of the Gazette’s production team can testify 8 PEOPLE May 2020 Law Society Gazette gazette.ie DELIGHTFUL DSBA ANNUAL GALA ALL PICS: CIAN REDMOND

The annual DSBA Gala took place at the Westin Hotel in Dublin on 28 February. The guest speaker on the night was Garda Commissioner Drew Harris

Garda Commissioner Drew Harris

Carol Plunkett hosted the Law Society Finuas Skillnet table

DSBA President Tony O'Sullivan makes a presentation of DSBA President Tony O’Sullivan and past-president Greg Ryan Bunreacht na hÉireann to Garda Commissioner Drew Harris gazette.ie Law Society Gazette May 2020 PEOPLE 9

Tony O’Sullivan and Richard Stowe Keith Walsh, Stuart Gilhooly and James McDermott

Mr Justice Peter Charleton (Supreme Court) Sarah Wilson, Tony O’Sullivan and Suzanne Rice Tony O’Sullivan

Paul English (Peter Fitzpatrick Legal Cost Accountants) shares a quip with In the frame – the legal team from Ronan Daly Jermyn Andrew Fitzpatrick and colleagues

Deirdre Walsh and Tony O'Sullivan 10 PEOPLE May 2020 Law Society Gazette gazette.ie

Brendan J Twomey, Patricia Twomey, Carol Plunkett and Randall Plunkett Sarah Wilson, Fiona McCaughan and Suzanne Rice

Michelle Nolan and other Law Society guests enjoying the gala event Miriam Doyle Mary Cawley

Top table guests share a joke, including Seán Ó hUallacháin SC (Bar Council) and his wife Mary Professor John Wylie (right) makes a point

Ken Byrne and Liz O’Donnell (RSA chairperson) Kathleen Leader SC (right) at the DSBA gala event Gary Skinner and his wife Susan Martin gazette.ie Law Society Gazette May 2020 PEOPLE 11 DSBA LAW BOOK AWARDS 2020 ALL PICS: CIAN REDMOND

The Westin in Dublin was the venue for the annual Dublin Solicitors’ Bar Association’s (DSBA) Book Awards on 28 February. The late Paul Anthony McDermott SC received a posthumous award for ‘Outstanding Contribution to Legal Scholarship’, sponsored by Law Society Finuas Skillnet: Garda Commissioner Drew Harris, Annick Hedderman (widow of Paul Anthony McDermott), James McDermott BL, Carol Plunkett (representing sponsors Law Society Finuas Skillnet), Keith Walsh (chair, judging panel) and Tony O’Sullivan (president, DSBA)

Ciaran Joyce, Emma Jane Prendergast, Dr Tom Hickey, Garda Commissioner Drew Harris, Paul Prof John Wylie, Garda Commissioner Drew Harris, Diego English (representing sponsors Peter Fitzpatrick & Company), Keith Walsh, Tony O’Sullivan and Gallagher (representing sponsors Byrne Wallace), Keith Mark Tottenham BL Walsh and Tony O’Sullivan

Annick McDermott, James McDermott BL and Carol Ciaran Joyce, Garda Commissioner Drew Harris and Dr Tom Hickey and Peter Malone (compli- Plunkett Mark Tottenham BL ance and ethics counsel, Accenture) 12 NEWS May 2020 Law Society Gazette gazette.ie LITIGATION PRIVILEGE RECLAIMED PIC: SHUTTERSTOCK n Britain and Ireland’s positions SFO, “without losing the benefit are very similar in relation to of legal professional privilege for litigation privilege, but the find- the work product and conse- ing by the British High Court quences of their investigation”. in 2017 in Director of the SFO v In reaching its conclusions, Eurasian Natural Resources Corpo- the appeal court made some ration Ltd ([2017] EWHC 1017) interesting obiter dicta remarks, caused considerable uncertainty while acknowledging a submis- around the parameters of when sion made by the Law Society of privilege could be claimed, writes England and Wales that the law Michelle Lynch (policy development was out of step with international executive). common law. It recognised that The decision explored the there was no need to examine limits of legal professional privi- legal advice privilege, since it had lege, restricting how privilege already decided the matter on the applies in an internal investiga- basis of litigation privilege, and it tion within a criminal context in was also unable to depart from Britain (see ‘Check your privi- the test set down in Three Rivers lege’, December 2017 Gazette, (No 5) ([2003] EWCA Civ 474). p52). The appeal ([2018] EWCA However, it did note that “legal Civ 2006) raised important issues prosecute. Further, ENRC failed garded evidence and documents professional privilege is a classic as to the proper scope of legal to establish that criminal pro- that clearly pointed towards the example of an area where one professional privilege in that par- ceedings had been reasonably contemplation of a prosecution might expect to see commonality ticular context. contemplated by it at any rel- if self-reporting did not success- between the laws of common law evant time. fully avert it. countries”. The 2017 case It also found that, in both the In SFO v ENRC, following On appeal criminal and civil context, legal Future endeavours claims by a whistleblower, Eur- The Court of Appeal found that advice given to avert, avoid or Since the Court of Appeal deci- asian Natural Resources Corpo- the High Court had failed to give even settle reasonably contem- sion, the SFO confirmed that it ration Ltd (ENRC) had under- sufficient regard to specific facts plated legal proceedings remains would not be appealing. While taken its own internal investiga- and evidence that had discussed protected by litigation privilege, Ireland does not have the same tions. The Serious Fraud Office the possibility of litigation fol- as much as advice on defending level of case law around this issue, (SFO) had then proceeded with lowing the investigation. The or contesting such proceedings on the basis of the approach its investigations with a view to court did not consider whether would be. taken in Britain, it is indicative possibly pursuing a prosecution. the High Court had incor- Further, the court held that that litigation privilege could be It started a criminal investigation rectly applied the law on litiga- it was in the public interest that successfully asserted in analo- and sought to compel ENRC to tion privilege or the correct test companies should be prepared to gous circumstances here, such as provide a number of documents, to be used. Instead, the court investigate allegations, prior to an investigation by a regulator of claiming that the documents found that the judge had disre- going to a prosecutor such as the a regulated entity. were not privileged and should be disclosed. ENRC argued that the documents were the subject ARE YOU BEING PROPERLY SERVED?

LAW SOCIETY GAZETTE • Vol 114 No 4 I’ll be there for you Remote control Hand in glove of legal advice privilege and/or n As practising members are Barrister Ian Hanger was the The Courts Service has established The Government’s initiatives to send the magazine directly to first ‘McKenzie Friend’ in the remote court hearings during the to support businesses and landmark 1970 English case current coronavirus crisis employers explained litigation privilege. aware, your Gazette is normally your home, please log onto the The English High Court sent to your business address. website and update your Gazette

LAW SOCIETY €4.00 MAY 2020 found that ENRC failed to estab ga ette - However, we are offering all address preferences at www.law- lish that it was aware that litiga- members the option to easily society.ie/dashboard/dashboard/ tion between itself and the SFO change their address preference address-preferences.

was a “real likelihood” rather for receiving the magazine while May 2020 You can also review and update than a “mere possibility”. It also working remotely. your home address at the same held that the investigation by the If you are happy to continue time, if necessary. SFO could not be deemed adver- receiving the Gazette at your For login assistance, contact sarial, as it was simply a prelimi- business address, you don’t need HOLD YOUR HORSES [email protected]. For 05 nary step to be completed before to do anything. However, if you Law Society of Ireland Wartime neutrality and other queries about the Gazette, Spanish trade 9 771393 695029 any decision would be made to would prefer the Law Society ISSN 1393−6956 email [email protected]. gazette.ie Law Society Gazette May 2020 NEWS 13 CALCUTTA RUN POSTPONED n Due to the coronavirus situation, the Calcutta Run’s organisers have decided to postpone this year’s event. “We have taken this tough decision in consultation with our charity partners, the Peter McVerry Trust and The Hope Founda- tion,” the organisers say. “The good news is that we have secured a new date for Saturday 24 Octo- ber. We extend our thanks to the OPW and the gardaí for helping us find an alternative date.” The organisers of the Calcutta Run event in Cork will confirm an alternative date in due course. “We are conscious that our charities and the children they help have come to depend on our support each year,” the run organisers say. “This year, they will need run back on its feet and raise those be providing fitness and wellbeing our new date to the extent you us more than ever, so we hope much-needed funds.” tips by email and through social can, and to continue to donate that, circumstances allowing, and To keep supporters up to date media. to our charity partners during with the help of all our firms and with their training over the com- “We’re asking you to ‘keep the these most difficult of times,” the supporters, we will be able to get the ing months, the Calcutta Run will faith’, to work and train towards organisers say. RESPECTED SOLICITOR SEAN LIBRARY GALLAGHER PASSES AWAY SUPPORTS n Solicitor Sean Gallagher n The Law Society Library is has passed away as a result of waiving charges on certain docu- COVID-19-related issues. ments for the months of April Sean had been hospitalised and May. The decision covers in the ICU in Dublin’s Mater e-book extracts, journal articles, Hospital in recent weeks. He and other commentary delivered qualified in 1975 and had only by email. stepped back from active practice Charges for supplying prec- last year. edents in Word format will also Sean established the Dublin be reduced by 50%, to €25 (plus firm Sean Gallagher & Company VAT) per precedent. The library Solicitors (Merchants Quay, Dub- points out that the supply of doc- lin 8) in 1994. uments is governed by copyright He was a highly respected legislation and fair-dealing prin- member of the Panel to Assist ciples. The waiver and reduction Solicitors in Difficulty with the in charges will be reviewed for Law Society. subsequent months. Described as a generous man The library is continuing to with a big heart, Sean is deeply son-in-law Stephen, extended Mass was streamed on the web- operate online services to help mourned by his beloved wife family, relatives and friends. site of St Francis Xavier Church, answer members’ legal research Noelle, children Niamh, John, A private family funeral was Gardiner Street, Dublin. enquiries. Members can con- Hugh and Aifric, brother Colm, held due to Government advice Those who would like to send tact the library at tel: 01 672 grandchildren Pearse and Nora, regarding public gatherings on a message of condolence may do 4843 or email: libraryenquire@ brothers-in-law, sisters-in-law, Friday 24 April. The funeral so online at RIP.ie. lawsociety.ie. Have you played with us yet? Because we have issues – and clickable things

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In our digital issue, you can instantly access links to referenced cases and legislation, as well as pictures, video and audio. For best results, we recommend that you download the issue to your computer or device – it only takes seconds. Go on – push our buttons. It’s fun You can find it atgazette.ie along with our daily news site and other stuff gazette.ie Law Society Gazette May 2020 NEWS 15 LEGALMIND OFFERS MENTAL-HEALTH SUPPORT TO MEMBERS n It is human to feel a whole PIC: SHUTTERSTOCK/GAZETTE STUDIO tice standards and robust clini- range of emotions – from fear cal and risk-governance policies and worry, to loneliness and sad- and procedures. ness – during this trying time • LegalMind offers three levels of of unprecedented change and supports: uncertainty, writes Dr Emelina - Preventative, such as talk Ellis (Spectrum.Life). therapy, Remote working, social dis- - Early intervention, for mem- tancing, self-isolation, and an bers facing more complex overarching uncertainty about issues, and the future are affecting all of us - Treatment and response for in different ways. members experiencing a Legal practitioners, with their mental-health crisis. particular professional pressures and community standing, are Access LegalMind directly by call- likely to be experiencing both ing the freephone number (1800 good and bad days – moments of 81 41 77) to speak with a mental- clarity and moments when it all health professional and to work feels too much. out a plan that feels right for you. In moments of clarity, one You can also register on the might notice the beauty of the LegalMind online portal (see mundane or be reminded of how sional will talk through any What are the benefits? legalmind.spectrum.life) for access deeply we appreciate both our issues you or your family may be • LegalMind is an independent to information and content about loved ones and our support net- facing and, on completion of the mental-health service provided physical wellness, wellbeing, men- work. consultation, will collaboratively by high-quality mental-health tal health, and wellbeing events, In moments when it all feels explore the most appropriate service provider Spectrum.Life, using the code ‘well2020’. too much, there may be a need to next steps to consider and the in partnership with Spectrum Further details on this service talk to someone apart from col- supports available to you. Mental Health. Absolute con- are available on the Law Society’s leagues, family or friends. Legal- These further supports may fidentiality is therefore guaran- Professional Wellbeing Hub at Mind can provide you with this include a series of face-to-face, teed. www.lawsociety.ie/legalmind. support. online video, or over-the-phone • LegalMind offers affordable Today – right now, at this very Launched on 9 April, Legal- counselling sessions. mental-health supports to the moment – LegalMind is here to Mind is an independent, confi- profession. The first appoint- help you. dential, low-cost, mental-health Initial call ment will be free and, after We hope that knowing this sup- support that is accessible to Following the initial phone call, that, Law Society members will port is here for you will give you Law Society members and their which offers in-the-moment pay a reduced fee of €30 per some solace, on both the good and dependants across Ireland, at any support with a counsellor and session. bad days that may lie ahead. Stay time of the day or night. assessment of the issue, you will • LegalMind employs best-prac- well. be offered an appointment to Support structure speak with a mental-health pro- LegalMind is a permanent sup- fessional (psychologist, counsel- ARE YOU RECEIVING port structure, based in Ireland, lor or psychotherapist) within 48 and available to you for any per- hours. THE PRESIDENT’S sonal or professional challenges. This appointment will be Maintaining good mental health within a 30-kilometre geograph- eBULLETINS? at this time can help you stay ical radius, and will take place n Law Society President Michele whom it has a valid email address. physically well. inside five working days. O’Boyle continues to send out If you are not receiving these The service offers ‘in the Currently, therapy sessions are regular eBulletins to provide sup- updates, and wish to be added to moment’ support, 24/7, over the taking place via online video and/ port and updates to the profession the solicitors’ subscriber list for phone, with a qualified, experi- or telephone. at this critical time. While this the eBulletins and Legal eZine, enced and accredited counsellor Face-to-face counselling ses- service was restricted to members, please email your contact details or psychotherapist. sions will resume once the pres- the Society is now sending these and solicitor number to ezine@ This mental-health profes- ent health emergency has passed. newsletters to all solicitors for lawsociety.ie. 16 NEWS May 2020 Law Society Gazette gazette.ie

ENDANGERED LAWYERS VIRTUAL MOOTERS ESTEBAN EMANUEL CELADA FLORES, GUATEMALA TAKE BRONZE

Esteban Emanuel Celada Flores he was leaving Esteban’s house. is a human rights lawyer and Two witnesses were also killed member of the Group of Liti- during the incident. On the night gators against Torture in Latin of 21 December 2019, unknown Peter Carvill, Karolina Rozhnova and Fiachra MacElhatton America. He has collaborated individuals broke into his house n Representing Ireland, the Law virtual final round, which was with a number of human rights while he was away. The intrud- Society’s PPC1 trainees have themed around the reintroduc- organisations in Guatemala, in- ers did not steal anything, but come third in the 24th Annual tion of bears. cluding Mujeres Transformando searched through his belong- Stetson International Environ- Coached by TP Kennedy el Mundo. He has also provided ings, in particular documents mental Moot Court Competition. (director of education), the train- legal representation in many related to his legal work. In light of the COVID-19 pan- ees demonstrated their advocacy sensitive cases across the coun- Esteban Celada has a pending demic, the in-person oral argu- skills and knowledge of interna- try, concerning crimes against request for precautionary mea- ments for the international finals tional environmental law. humanity, organised crime, sex- sures before the Inter-American in Florida were cancelled, and The winning team was ual violence and femicide. Gua- Commission on Human Rights, virtual rounds were held instead. from the National University temala reportedly has one of the which, according to information Peter Carvill and Karolina of Advanced Legal Studies in highest levels of violence against he received, has not been pro- Rozhnova (William Fry) and Kochi, India, while second place women in the world. cessed due to the failure of the Fiachra MacElhatton (Maples went to the National Law Insti- On the morning of 5 February Ministry of the Interior to submit and Calder) competed in the tute University in Bhopal, India. 2020, unidentified men tried to a risk analysis. break into his house through the Human rights defenders in main door. Earlier, unknown per- Guatemala are subjected to sons asked his neighbours about death threats, physical attacks, GLORIOUS GAZETTE his whereabouts. The next day, acts of harassment, surveillance, Esteban Celada filed a complaint stigmatisation, judicial harass- GOING GREAT GUNS at the office of the Prosecutor ment, spurious criminal charges, n Last month, for the first time in into liquidation on Friday 13 for Human Rights. The com- arbitrary detention, forced dis- its 113-year history, the Law Soci- March after over 180 years in plaint concerned the attempted appearance and killings. Many of ety Gazette was produced entirely existence, resulting in 50 job break-in, as well as the numerous the violations are carried out by remotely using laptops, portable losses. The magazine is now being security incidents he had experi- clandestine security structures scanners, Cloud file-sharing sites, printed by Boylan Print Group in enced throughout 2019. Up to and illegal groups. The excep- and Zoom for editorial meetings. Drogheda, Co Louth. late March, no action had been tionally high level of impunity (Photos of the editorial crew hard Production on the May issue taken by the authorities. enjoyed by the perpetrators at work in Kildare, Dublin, and has also taken place remotely, and Esteban Celada has been increases the risk exponen- Sligo were included on p8 of the this will continue for as long as is repeatedly targeted in the past. tially for human rights defend- April issue.) necessary. Between 8 May 2019 and 5 Feb- ers. Few attacks are investi- Your dedicated team was able We hope that you will con- ruary 2020, he faced at least 27 gated, and even fewer result in to replicate a virtual newsroom tinue to enjoy the high standards security incidents, including per- convictions. production environment away of content and production you sistent surveillance. On 8 Febru- from Blackhall Place thanks to expect from your Gazette. You can ary 2018, his brother David Ray- Alma Clissmann is a member of this technology – and a little bit of have the magazine temporarily mundo Celada Flores was shot the Law Society’s Human Rights Gazette magic. redirected to your home address dead by unidentified persons as Committee. Sadly, our printers for many during the current lockdown – see decades, Turner’s Printing, went p12 of this issue. gazette.ie Law Society Gazette May 2020 NEWS 17 LAW SCHOOL LAUNCHES ONLINE PPC2 PIC: CIAN REDMOND n Monday 6 April was a historic day in the continuing development and modernisation of solicitor training in Ireland, as the Law Society welcomed 450 trainee solicitors from around the country to the inaugural online Profes- sional Practice Course 2. Director of Education TP Ken- nedy explains: “Arising from the current crisis, PPC2 will be delivered through optimised teaching and learning online. These are uncertain times, and we are fully committed to providing excellent professional training to our future solicitors and now, more than ever, to protecting their personal health and wellbeing.”

Active viewing “Our use of technology does more than simply mimic standard lecture delivery,” says Kennedy. “We have developed a programme that promotes engagement by enabling PPC2 trainees to have an active rather than a passive viewing experience. We are par- Members of the PPC2 course attending a Zoom lecture ticularly focused on how to mini- mise the risks identified in taking any word spoken or shown on tablet, or smartphone,” says Ken- team will provide counselling an online course, which include screen, nedy, adding: “We are particularly through confidential Zoom ses- isolation, unfamiliarity with tech- • Navigational controls to move mindful of the potentially isolat- sions, while ‘Shrink Me Online’ nology, and disengagement due directly to specific sections of ing impact of this period of clo- provides a safe and positive to ineffective e-resources and the video, sure and separation.” platform for trainees to unlock instruction.” • A podcast download feature to their wellbeing through shared The online PPC2 emphasises allow offline review of audio Isolating impact thoughts, ideas and engagement usability, mobile friendliness, and content, During the online PPC2, e-lec- with the Law School community. peer-to-peer engagement. Train- • A note-taking facility to add tures will be supported by Zoom The Law School has always ees will see additional educational synchronised comments, and live tutorials, providing all the been innovative in the use of elements, including pre-recorded • Visual bookmarks within the benefits of traditional face-to- technology for educational e-lectures, which are available lecture window. face tuition and a sense of con- programmes. Last year, it was to watch online and on demand nected learning within the Zoom awarded the accreditation of for the duration of the course, “The PPC2 is a full-time course, classroom. These tutorials allow ‘Apple Distinguished School allowing trainees to consume but we have designed the pro- for interaction between course 2019-2021’, which is given to out- lecture content at their own time gramme to empower trainees tutors and smaller groups of standing schools and programmes and pace. and to provide access to lectures trainees, providing a ‘hands- worldwide that are regarded as E-lectures incorporate a series and course materials remotely, on’ approach to reinforce their centres of innovation, leadership of embedded interactive features, at a time and in a place that best learning. and educational excellence. including: suits their own study needs. Our Free time-concentrated ther- Trainees can receive regular • Personalised viewing options, e-lectures are captured using Pan- apy sessions, which support train- Law School updates through: allowing the participants to see opto, which enables our staff and ees in achieving positive mental • twitter.com/lawsocedu, both the lecturer and their pre- associate faculty to record and wellbeing, are also available for • www.facebook.com/lawsocedu, sentation slides simultaneously, share flipped classroom videos the duration of the course. The • or www.linkedin.com/groups/ • A function to allow searches for from anywhere, using any laptop, dedicated Psychological Services 8103163. 18 COMMENT Viewpoint May 2020 Law Society Gazette gazette.ie

IRELAND IS FAILING SMALL BUSINESSES Ireland must do significantly more to help businesses remain solvent during the shutdown, argue Greg T Rinckey and Mathew Tully

GREG T RINCKEY AND MATHEW B TULLY ARE PARTNERS IN TULLY RINCKEY LLP, IRELAND, AND FOUNDING PARTNERS OF TULLY RINCKEY PLLC IN THE UNITED STATES

he Government-ordered in regard to economic aid to the act dedicated to revitalising the shutdown of all non- small business community. economy is the Paycheck Pro- essential business has The US Government passed tection Program (PPP). The Tdevastated the economies of the legislation on 27 March 2020 PPP allocates US$350 billion to United States and Ireland. Yet we under the Coronavirus Aid, Relief small businesses in order to pre- must look towards brighter days and Economic Security (CARES) vent layoffs and business closures when the economy will restart Act, which is the largest relief while workers have to stay home and life will return to normal. bill in US history and will allo- during the outbreak. As business owners of a law cate US$2.2 trillion in support Companies with 500 employ- firm in both the US and Ire- to individuals and businesses ees or fewer that maintain their land, we were shocked at how affected by the COVID-19 pan- payroll during the coronavirus disparate the Irish and Ameri- demic and economic downturn. pandemic can receive up to eight can Government actions were The primary highlight of the weeks of cash-flow assistance. WE ARE The loan proceeds can be used PIC: LEON FARRELL/PHOTOCALL IRELAND to cover payroll costs, mortgage HONESTLY interest, and rent and utility costs PIC: SHUTTERSTOCK SHOCKED AT over the eight-week period that the loan is made. This aims to THE LOW LEVEL ensure that American small businesses can keep employees on OF ASSISTANCE the payroll and compensation THE IRISH levels are maintained throughout the crisis. GOVERNMENT If employers maintain payroll, the portion of the loans used for HAS OFFERED covered payroll costs, interest TO SMALL on mortgage obligations, rent, and utilities are forgiven. While BUSINESSES payroll is capped at US$100,000 AFTER TAKING for each employee, this is a fair and reasonable amount to ensure THE DRACONIAN mid-level employees and mid- level businesses survive. STEP OF CLOSING The application process is DOWN ALL made very simple, by allow- Finance Minister Paschal Donohoe announces an update to the Temporary ing businesses to apply through BUSINESS Wage Subsidy Scheme on 15 April any federally insured depository gazette.ie Law Society Gazette May 2020 Viewpoint COMMENT 19 PIC: SHUTTERSTOCK

institution. All small businesses that the PPP loans are deferred businesses are poised to make WHILE THE US IS under 500 employees can apply, for six months, interest is 1% a comeback when the pan- and the PPP loan money will be fixed rate, and the loans may demic ends and businesses are POISED FOR A dispersed within 48 hours, ensur- be forgiven if, by 30 June 2020, reopened. The US economy is ing small businesses can maintain the business restores full-time clearly in recession territory, but RAPID COMEBACK, liquidity during the crisis. employment and salary levels to the CARES Act is likely to ensure WE FEAR THAT any changes made between the that a brief recession does not Cash is king periods 15 February 2020 and 26 turn into a depression. MANY IRISH MID- What small businesses need most April 2020. LEVEL BUSINESSES in this crisis is cash flow. Cash is No collateral is required for Threat of arrest king in any crisis and ensures that the PPP loan, and no personal Juxtaposed with this response, the – INCLUDING LAW expenses can be paid and, most guarantee is required by the Irish situation is clearly more con- FIRMS – WILL NOT importantly, that employees can small business owner. The PPP cerning, due to the lack of strong be paid. The most critical part is loans will ensure that American Government aid or assistance to MAKE IT COVID19 CPD SUPPORT FOR SOLICITORS

To support solicitors during the challenging months ahead Law Society Finuas Skillnet have launched LegalED Talks funded by Skillnet Ireland who are funded by the Department of Education and Skills. This is a Free CPD series of weekly talks from expert speakers that will cover the following four areas areas:

COVID-19 LEGAL PRACTICE UPDATES - Focused on new emergency legislation and initiatives that have been 1 implemented by the Government, Court Services and public sector bodies to address the current crisis. It will include the wage subsidisation legislation, business support initiatives, tax and revenue practice changes, civil litigation and PIAB, family and child law, probate, conveyancing, GDPR, Cyber security, digital signatures and many other topics.

2 REGULATORY TOPICS such as section 150 costs and AML.

IT KNOW-HOW SERIES - This will comprise of talks and tutorials to assist you in the use of software tools to work remotely at 3 home.

SHRINK ME ONLINE PROGRAMME - This twelve week programme has been designed by the Psychological Services 4 Section of the Law Society Education Department. It will comprise of two distinct elements. Unlocking Wellness Together (which will be delivered by psychologists, professional leadership and coaching experts and counsellors) and the Legal Lives Series (which will share interesting insights and perspectives from many well-known individuals within the legal profession).

All LegalED Talks are short sessions comprising various formats of delivery that can be accessed from your LegalED Talks Learning Management Hub. Sessions will be disability accessible with closed caption/sub-titles and will include knowledge checks. New sessions will be uploaded weekly so keep checking to make sure you don’t miss out on this great new learning support. Over 26 free CPD hours will be available from 15 April 2020. To register to join the LegalED Talks Learning Management Hub click www.lawsociety.ie/LegalEdTalks or email [email protected]

The Diploma Centre at the Law Society has launched two new courses to support the profession at this challenging DIPLOMA CENTRE time and has introduced a suite of measures that will furnish 21 free CPD hours to solicitors.

DIPLOMA CENTRE – CERTIFICATE IN TECHNOLOGY LAW. This five-week course will provide an overview of key areas such 1 as social media and the law, data protection, e-commerce, cybersecurity, cybercrime, Fintech and blockchain. 14 CPD hours.

DIPLOMA CENTRE – INTRODUCTION TO ARTS, ENTERTAINMENT AND MEDIA LAW. Also spanning five weeks, expert 2 speakers on this course will offer an insight into broadcasting, publishing, contractual obligations and litigation in the entertainment industry, copyright and image rights. 7 CPD hours.

All lectures are online with live interactive workshops with lectures released weekly. Lectures and workshops are available to 3 view on demand to provide maximum flexibility. Certificates will be awarded once short continuous assessments are completed.

Lectures are released weekly and both courses include live interactive workshops. Both courses begin on 16 April 2020. However, it is possible to join these courses at any time before 31 July 2020. To register please visit www.lawsociety.ie/diplomas or email [email protected] or [email protected] gazette.ie Law Society Gazette May 2020 Viewpoint COMMENT 21 PIC: SHUTTERSTOCK small businesses during the Gov- ernment-ordered shutdown. We are honestly shocked at the low level of assistance the Irish Government has offered to small businesses after taking the draconian step of closing down all business, under threat of arrest. Under the Temporary COVID- 19 Wage Subsidy Scheme, up until 16 April 2020, the Rev- enue will refund up to 70% of the employee’s weekly net pay, but only to a maximum of €410 per employee for workers earning under €38,000. The scheme will only contribute up to €350 for employees earning between €38,000 and €76,000, while employees earning over €76,000 are not eligible at all! The Wage Subsidy Scheme was amended on 15 April 2020 to provide assistance to those employees whose average net weekly pay exceeded €960 and did not qualify under the previous scheme rules. This – including law firms – will not sion that will be worse than the amendment to the scheme is a make it through the crisis, and 2008 ‘Great Recession’. move in the right direction but is will lay off thousands of employ- This does not have to happen. still too little and too late. ees or (worse yet) become insol- What Irish small businesses need Moreover, businesses must be vent and close their doors for – and need now – is additional able to show that they have lost good. There is a major risk that loans made by the Government at least 25% of their turnover due Ireland is slipping into a long- that can be forgiven if certain cri- to the COVID-19 pandemic and lasting recession again. teria are met, such as rehiring or otherwise unable to pay normal What Ireland needs is similar to keeping employees on the pay- wages and outgoings. Unlike the what the United States has passed roll. This will ensure that busi- US recovery plan, business own- under the CARES Act. Irish small nesses are able to remain solvent ers are not included unless they business owners need cash liquid- during the shutdown and are cease trading. Basically, the busi- ity to pay business expenses, poised to roar back to life once ness must admit to being insol- such as payroll, rent and utilities. the economy reopens. vent to get the aid and, more- Many Irish businesses have seen This type of lending will over, Revenue will publicly post a drop-off of more than 70% of also instil confidence in the a list of every company availing turnover. Some businesses in the small business community that THE US ECONOMY of the scheme, which stands to travel, hospitality and entertain- they will survive this crisis, and hurt the long-term reputation ment industries are even worse encourage them to keep spend- IS CLEARLY IN and future dealings of businesses. off, as their revenue has virtually ing and paying expenses. This RECESSION dried up. is critical to the Irish economy Devastating impact as a whole, because the more TERRITORY, BUT At the time of writing, 40,000 Another Great Recession? apprehensive people are about Irish businesses had availed Ireland was booming before the an uncertain economic future, THE CARES ACT IS themselves of the aid. While this COVID-19 pandemic hit. It is the less likely they are to spend – LIKELY TO ENSURE wage scheme may be helpful to critical that the Government and that has a continual spillover lower-wage employers, it will provides more financial aid to the effect on the entire economy. THAT A BRIEF be devastating to mid to higher- small businesses that have been The decisions that the Gov- level wage employers. decimated by the shutdown. If ernment makes now will have RECESSION DOES While the US is poised for a the Government fails to act, long-ranging effects for the pros- NOT TURN INTO A rapid comeback, we fear that the Irish economy is headed to- perity of small businesses, and many Irish mid-level businesses wards another recession/depres- for Ireland. DEPRESSION 22 COVER STORY May 2020 Law Society Gazette gazette.ie

WAR HORSE During the final years of World War 2, an intriguing legal case involving the sale of ‘war horses’ came before the High Court and, subsequently, the Supreme Court. The case rotated on wartime neutrality, British intelligence and wartime navicerts. Barry Whelan mounts up

DR BARRY WHELAN IS DIPLOMA EXAMS ADMINISTRATOR AT THE LAW SOCIETY AND AUTHOR OF IRELAND’S REVOLUTIONARY DIPLOMAT: A BIOGRAPHY OF LEOPOLD KERNEY (NOTRE DAME UNIVERSITY PRESS) gazette.ie Law Society Gazette May 2020 COVER STORY 23 PIC: SHUTTERSTOCK 24 COVER STORY May 2020 Law Society Gazette gazette.ie

AT A GLANCE n The Saorstát and Continental Steamship Company issued court proceedings for breach of contract against Spanish Colonel de las Morenas, who had travelled to Ireland to purchase horses for show-jumping competitions n The contract placed responsibility on Morenas for ‘dead freight’ if the horses were not shipped n The ship sailed without the horses on 24 March 1944 – the shipping company sued for £2,600 in damages n Morenas requested the High Court in Dublin to set aside the proceedings, but the court dismissed Morenas’s defence that “a foreign sovereign

state may claim immunity from the PIC: SHUTTERSTOCK jurisdiction of these courts”, and awarded costs to the company

n 17 April 1944, an Irish shipping company, Saorstát and Continental Steamship Company, issued court proceedings against a Spanish military officer Colonel de las Morenas for breach of contract. The Spanish officer was part of an army commission that had travelled to Ireland to purchase horses for show-jumping competitions. The company stated that, on 9 March, Morenas had agreed to reserve space on its ship, the SS Assaroe, for “52 horses at the rate of £50 each to be carried by the plaintiff’s vessel”. The company had specially designed ships that had been carrying livestock to Europe since 1936 and had continued to operate throughout the war flying under the Irish flag, often in perilous circumstances. The SS Assaroe had previously been damaged off the coast of Howth. Another ship, the City of Waterford, had been damaged by gazette.ie Law Society Gazette May 2020 COVER STORY 25

THE MAJORITY OF AXIS LOGISTICAL SUPPLY DURING THE WAR WAS NON-MECHANISED AND WAS CARRIED BY HORSES. BRITISH INTELLIGENCE BELIEVED THAT THESE HORSES WERE BEING USED FOR SUPPLYING AND EQUIPPING THE AXIS ARMIES IN THE FIELD

German aircraft in the Bristol Channel, During the trial, Morenas stated that the intelligence, through the ambassador in while yet another ship, the City of Bremen, reason he had failed to deliver the horses Madrid, wrote to the Spanish Minister had been lost due to German aerial attack in to the ship was due to a delay in obtaining for Foreign Affairs General Jordana to the Bay of Biscay. a navicert. In the months leading up to the highlight the links between these officers Allied cross-Channel invasion of France on and the Axis powers, adding that they did he freight was due to sail on 24 March 6 June 1944, the Royal Navy had instigated not accept the notion that these horses 1944 for Lisbon, and a stipulation a navicert system, which required all neutral were being purchased for show-jumping of the contract placed responsibility ships to register their contents to prevent competitions. onT Morenas to ensure that, if the horses any contraband reaching an opposing The majority of Axis logistical supply were not ready to be shipped on time, belligerent. during the war was non-mechanised and then he “would be responsible for dead was carried by horses. British intelligence freight”. When the ship did sail on 24 March Monitoring activities believed that these horses were being without the horses, the company sued for For some time, British intelligence had used for supplying and equipping the Axis £2,600 in damages (equivalent to €109,369 been monitoring the activities of the armies in the field. Given the Spanish today). Morenas requested the High Court Comisión Militar Española (Spanish Military Commission’s existing history in Dublin to set aside the proceedings on Military Commission). In one instance, with the Axis powers, and the multitude the grounds that the matter was “outside they noted that the commission had of other pro-Axis activities that General and without the jurisdiction of the court as purchased horses from neutral Portugal Franco’s regime engaged in – from they implead the Government of Spain, a and then, subsequently, sold them to secretly provisioning submarines to Sovereign State”. Italy, a wartime enemy of Britain. British using their diplomatic service to gather 26 COVER STORY May 2020 Law Society Gazette gazette.ie

keeping him informed about political opponents of Franco’s regime based in Ireland, as well as pressuring newspapers to avoid publishing anti-Franco material in the leading broadsheets. The department’s secretary, Joseph Walshe, had been eager to foster benign relations with Franco’s dictatorship. When war came, Walshe saw the shared policy of neutrality as another binding indicator of cordial Irish/Spanish relations. On this occasion, however, the department refused to provide any support to Ontiveros, citing the “independence of the Irish judicial system”.

Clear line of separation The Spanish diplomat could not understand German Army horses towing an infantry gun, Poland, September 1939 (German Federal Archive, this decision, which highlighted the Bild 183-S54817) complete disparity between the Irish and Spanish legal systems at the time. While intelligence for Berlin and Rome – it was in Spain that it would dispatch naval boats the former had a clear line of separation no coincidence that the British had refused to Dublin to recover the horses, unless the between the executive and the judicial arms, issuing a navicert to the commission in court reversed its decision. in the case of the latter, the justice system Ireland. The Allies wanted complete served the political interests of the regime control over the sea lanes of Europe and to he new Spanish Minister for Foreign at all times. Its courts carried out brutal shut down any clandestine assistance to the Affairs, José Félix de Lequerica, and repressive measures against Franco’s Axis, especially in the lead-up to the largest wrote to the British Ambassador for opponents without any fair trials or hearings amphibious invasion in history. assistanceT in the matter, but was informed taking place, and its courts existed to serve that, due to the ongoing invasion of Western the dictator and not the public interest. Press sensation Europe, “no neutral ships are permitted to Ontiveros pushed for an appeal to the On 16 August 1944, Mr Justice Haugh travel on the route between Spain and Éire” Supreme Court, hiring two leading barristers made his ruling in the High Court. He and, if any Spanish naval vessels attempted and future Taoisigh, John A Costello SC and dismissed Morenas’s defence that “a foreign to sail to Dublin, they would be intercepted Liam Cosgrave (junior counsel) to represent sovereign state may claim immunity from by Allied warships. Morenas. Costello had a distinguished legal the jurisdiction of these courts” and awarded Madrid then instructed its diplomatic career long before this case and was noted costs to the company. The judgment caused representative in Dublin, Juan Garcia for his debating style in court. He was also a sensation in the press and further afield. Ontiveros, to pressure the Department of a former attorney general, had introduced When news of the court’s judgment reached External Affairs to intervene in the case. emergency legislation to tackle the IRA after Spain, the country’s Army High Command In the past, External Affairs had assisted the Irish Civil War, and had helped pressure informed the Ministry of Foreign Affairs Ontiveros in several matters, including Britain to pass the Statute of Westminster

WHEN NEWS OF THE COURT’S JUDGMENT REACHED SPAIN, THE COUNTRY’S ARMY HIGH COMMAND INFORMED THE MINISTRY OF FOREIGN AFFAIRS IN SPAIN THAT IT WOULD DISPATCH NAVAL BOATS TO DUBLIN TO RECOVER THE HORSES, UNLESS THE COURT REVERSED ITS DECISION gazette.ie Law Society Gazette May 2020 COVER STORY 27 in 1931, which recognised the legislative independence of the dominions in the THE SPANISH DIPLOMAT Commonwealth. Cosgrave, by contrast, had been called to COULD NOT UNDERSTAND the Irish bar the year before, was relatively inexperienced, but came from a famous THE HIGH COURT DECISION, and well-connected political family. His father, William T Cosgrave, had been the WHICH HIGHLIGHTED first president of the Executive Council of the Irish Free State. The Spanish diplomat THE COMPLETE DISPARITY was confident that, with this legal team, the judgment of the High Court would be BETWEEN THE IRISH AND overturned by the Supreme Court. SPANISH LEGAL SYSTEMS Unanimous decision The Supreme Court recognised that Ireland, AT THE TIME like most countries, accepted the principle of international law, the immunity of sovereign states and its rulers, and that municipal Although the case highlighted that Despite losing the case, John A Costello law accepted and recognised this principle. Irish domestic law accepted the doctrine continued his successful legal profession in Furthermore, Mr Justice O’Byrne cited of sovereign immunity, the judgment a part-time capacity, along with his political article 26, section 3 of Bunreacht na hÉireann, recognised a distinction between direct and duties, and became Taoiseach of the first which states: “Ireland accepts the generally indirect state immunity and, thus, a more interparty government in 1948, thus ending recognised principles of international law as restrictive view of sovereign immunity 16 years of Fianna Fáil dominance in its rule of conduct in its relations with other emerged from the case. It has been cited by political power. He chose Liam Cosgrave, states.” many subsequent cases since, showing that, his junior counsel in the Morenas case, as his However, the Supreme Court, in a if one invokes international law, there is no parliamentary secretary and Government unanimous decision on 18 December 1944, guarantee of success, since state immunity is chief whip. upheld the judgment of the High Court by now viewed (in light of this case) in a more finding no grounds that the Government of constricted manner. Horse power Spain had been impleaded, either directly or Ironically, in a case that centred on horses, indirectly, and therefore there was no basis for Sour taste the Spanish would continue to buy Irish horse setting aside the decision. Outside of the legal ramifications of the breeds because of their excellent quality and, case, its impact left a sour taste in Irish/ in post-war sporting competitions at which r Justice O’Byrne contended that Spanish relations. Owing to the war they both competed, horses helped continue Colonel de las Morenas had been and the unfortunate circumstance that the historic relationship. Both countries faced sued in his personal capacity by only a specialised vessel could carry such isolation in the post-war era – Ireland for its Mthe shipping company, and any judgment livestock, Morenas and his team were to neutral policy, and Spain for its overtly non- could not be enforced against any property, remain in Ireland for most of 1945. The neutral policy. save that of the appellant. The judge whole controversy convinced the Spanish Just as British intelligence kept its eyes continued that, in his view, only if a sovereign authorities to alter their entire trading on Morenas and his team in the lead-up state had been named as a defendant in the relationship with Ireland. In future, all to D-Day, so it maintained surveillance in proceedings could it be directly impleaded – goods would be placed and transported on the post-war era. The shadow of British but this had not been done in this case. Spanish ships. intelligence stayed ever-present in Irish/ He further argued that a state could be The case also undermined Ontiveros’s Spanish relations during the years that indirectly impleaded to indemnify Morenas relationship with External Affairs. His anger followed. by virtue of his appointment as an agent at what he perceived to be their indifference of the Spanish Government, but “this was to the case from a Spanish viewpoint led far short of saying that the government him to become increasingly impudent in his was being impleaded”. Mr Justice O’Byrne dealings with Dublin, which further eroded LOOK IT UP also noted that counsel for Morenas had the once-cordial relationship. CASES been unable to show one example when a When the Second World War ended, n Saorstát and Continental Steamship government had been held to be impleaded Franco moved quickly to replace his Co v de las Morenas [1945] IR 291 merely because its agent had been sued. representative with a more tactful diplomat. The ruling was a landmark decision. The Ontiveros’s successor, Count Artaza, enjoyed LEGISLATION: general acceptance of sovereign immunity by excellent relations with External Affairs and n Bunreacht na hÉireann, article 26, countries under international law could no concluded several important trade deals section 3 longer be viewed now as an absolute. between the countries. 28 PROFILE May 2020 Law Society Gazette gazette.ie

WITH A LITTLE HELP FROM MY FRIENDS The original ‘McKenzie Friend’ Ian Hanger speaks to David Mulligan about the groundbreaking case that led to the establishment of the landmark principle

DAVID MULLIGAN IS A SOLICITOR WITH MELLOTTE O’CARROLL SOLICITORS AND IS ADMITTED BOTH IN IRELAND AND AUSTRALIA. WHILE WORKING IN AUSTRALIA, HE WORKED ALONGSIDE MR HANGER

an Hanger is the original ‘McKenzie Friend’. Levine McKenzie was a client of the small London law firm for which Hanger worked. McKenzie had been legally aided by the firm during a divorce case but, due to a false statement about his domicile, he lost his legal-aid funding. As a result, the law firm ceased representing him. On the day before the trial, however, the firm agreed to assist McKenzie on a pro bono basis. Ian Hanger was the lawyer tasked with assisting McKenzie – though Hanger had not been admitted as a barrister in England. When the case was called, Hanger sat beside McKenzie at the Bar table, though he did not announce himself. He simply sat there and quietly prompted McKenzie when necessary – and this ultimately led to the birth of the concept of the ‘McKenzie Friend’. So, how did a young Australian barrister find himself in London in the late 1960s? Ian Hanger had graduated in 1968 and had been immediately called to the Bar in Australia, but decided to spend some time overseas before embarking on his legal career proper. “While I spent a short period after my arrival in England serving with the Royal Green Jackets, I then found a job at a small suburban London law firm, where I i remained working throughout my time in England. gazette.ie Law Society Gazette May 2020 PROFILE 29

THE TRACK RECORD OF MCKENZIE FRIENDS IS ANECDOTALLY, AND TO THE EXTENT THAT THERE HAS BEEN RESEARCH, NOT BAD 30 PROFILE May 2020 Law Society Gazette gazette.ie

IN AUSTRALIA, THE RESPECTIVE LEGAL PROFESSION ACTS PROHIBIT A PERSON FROM ENGAGING IN LEGAL PRACTICE UNLESS THE PERSON IS A QUALIFIED LEGAL PRACTITIONER. I ASSUME THERE ARE SIMILAR PROHIBITIONS IN IRELAND

“While I was not admitted as a barrister Mr McKenzie at the Bar table. I did not – and not intended to inspire an appeal. But in England, I attended to whatever legal announce an appearance. I simply sat there it did! I presume that a proper advice was work my employer asked of me.” and quietly prompted him. obtained from counsel, but I don’t actually “I confess that it did not occur to me or know.” Be my friend my employer that the judge would object to Mr McKenzie was ultimately successful “One of our clients, Mr Levine McKenzie, such a process. After querying my presence, before the English Court of Appeal, which a Westminster dustman, was of Jamaican the judge remarked: ‘Well, you have no concluded that the trial judge had erred in origin. He had some linguistic difficulties right to sit at the Bar table. You can sit at disallowing Hanger from giving advice and and had been legally aided by our firm in his the back of the court and help him during assistance to McKenzie from the Bar table. defended divorce. adjournments’.” By default, Ian Hanger became the legal “He lost his legal-aid funding because world’s first ‘McKenzie Friend’. he had made a false statement about That’s what friends are for his domicile, which was not the United “Mr McKenzie’s trial took some ten days, n certain jurisdictions, including Kingdom but the West Indies. I had had no but was unsuccessful,” says Hanger. “I read England, McKenzie Friends have contact with him. the judgment, looking for an error of law, become a thorny issue, as they have “We had ceased to act for him, but on the and formed the opinion that there was none. startedI charging for their services. In 2014, day before his trial, he made contact with “From memory, I think I wrote on the in Britain, the Legal Services Consumer our firm and my employer asked me if I note from my employer asking me to look Panel, under the Legal Services Act, published would go to court the following day to help at the judgment, something that was meant a short report entitled Fee-charging McKenzie Mr McKenzie, pro bono. to be facetious, such as: ‘The only appeal is Friends. “When the case was called, I went that he didn’t have me’, or ‘would have done By this time, a number of individuals (or, into court and took up a position beside better with me’, or something equally trite indeed, groups of individuals) were charging fees for acting as McKenzie Friends. The panel interviewed a number of such Friends and reported that some were conducting between 50 and 100 matters per year, while SLICE OF LIFE some were earning more than Stg£100,000 Ian Hanger was called to the Bar in 1968 and Centre for the Settlement of Investment per annum. Most had no insurance. took silk in 1984. He practised extensively in Disputes, an arbitrator of the Chinese Interviews with these fee-charging Friends commercial law and then became a leader in International Economic and Trade Arbitration showed that they were doing a lot more the field of mediation from 1990. Commission, a member of the Hong Kong than what the traditional McKenzie Friend Since that time, he has mediated more than Mediation Panel, and a mediator of the had been permitted to do – and were doing 2,000 disputes – commercial, construction, Singapore Mediation Centre. a lot more than had been suggested in the estates, trust, negligence, professional He has been named in the Australian Fin- practice guidance document. negligence, contracts, defamation, insolvency, ancial Review list of ‘best lawyers in Australia equity, family provision, and personal injuries in the field of ADR’ every year since 2008. My friend of misery arising from abuse. He is a life professor at Bond University and As a result of the most recent Irish recession, He is a mediator for the Court of Arbit- was made a member in the Order of Australia our courts have seen a deluge of home ration for Sport, a mediator nominated by the in 2007 for services to law in the field of ADR, repossessions. With a limited civil legal- Australian Government to the International and for his services to music. aid scheme, many lay litigants are seeking assistance from self-styled McKenzie gazette.ie Law Society Gazette May 2020 PROFILE 31 PIC: SHUTTERSTOCK

TO PERMIT FEE-PAID MCKENZIE FRIENDS WOULD IMPLICITLY ACKNOWLEDGE THE CREATION OF A NEW BRANCH OF THE LEGAL PROFESSION

Friends when attending court. There are the creation of a new branch of the legal law schools encouraging the students to concerns in the legal profession that some profession. In Australia, the respective become McKenzie Friends (or whatever of these individuals are providing these Legal Profession Acts prohibit a person they end up being called), running services for payment. What are Hanger’s from engaging in legal practice unless the workshops to train them in what they can views on the threat posed by fee-charging person is a qualified legal practitioner. I and can’t do, and encouraging pro bono work McKenzie Friends, who might be regarded as assume there are similar prohibitions in in their final university year. usurping the traditional role of solicitors and Ireland. I completely condemn the practice barristers? of McKenzie Friends charging for their here is a win/win in this. The “Legal fees are expensive, and there are services.” students gain the courtroom many people who have a proper dispute that experience and the litigants needs to be adjudicated by a court and cannot Waiting on a friend “Tgain an enormous benefit by having afford representation. Legal aid is limited, Some universities in Britain have somebody, who is close to being legally and litigants in person are common and introduced schemes where students act as qualified, helping them in the courtroom.” will probably increase. The track record of McKenzie Friends on a pro bono basis. If In Australian legal circles, Ian Hanger is McKenzie Friends is anecdotally, and to the McKenzie Friends are to stand the test of well-known as a mediator. Mediation has extent that there has been research, not bad. time, is this the kind of role Mr Hanger been a central dispute resolution tool in [See: A Study of Fee-charging McKenzie Friends sees for them – and does he recommend the Australia since the 1990s. In Ireland, we are and their Work in Private Family Law Cases.] introduction of such schemes in Ireland? playing catch-up to a certain extent, with They do, at least, provide some assistance, “Yes, I understand that schemes like mediation only being seriously considered and there is an unmet need in the community. this are in place in England, and I would in recent years. Does he have any words “However, to permit fee-paid McKenzie recommend them. What I would like to of wisdom for Irish practitioners on the Friends would implicitly acknowledge see is active engagement by university benefits of mediation? DIPLOMADIPLOMA CENTRE CENTRE DIPLOMA DIPLOMA CENTRE CENTRE Diploma Diploma centre centre measures measures to supportto support the the profession profession during during Covid-19Covid-19 DiplomaDiploma centre centre measures measures to supportto support the the profession profession during during · Two· Two courses courses providing providing 21 free 21 free CPD CPD hours hours to solicitors to solicitors Covid-19Covid-19 · All· SpringAll Spring courses courses available available online online · Two· Two courses courses providing providing 21 free 21 free CPD CPD hours hours to solicitors to solicitors · Spring· Spring courses courses open open to late to late applications applications · All· SpringAll Spring courses courses available available online online · Discounts· Discounts on all on certificates all certificates and anddiplomas diplomas for forsolicitors solicitors on reducedon reduced · Spring· Spring courses courses open open to late to late applications applications hours/unemployedhours/unemployed · Discounts· Discounts on all on certificates all certificates and anddiplomas diplomas for forsolicitors solicitors on reducedon reduced hours/unemployedhours/unemployed

IntroductionIntroduction CertificateCertificate to Arts,to Arts, in Technologyin Technology EntertainmentIntroductionEntertainmentIntroduction CertificateLawCertificate Law and toandMedia Arts, toMedia Arts, Law Law in Technology(inFREE Technology(FREE) ) Entertainment(EntertainmentFREE(FREE) ) Law Law and andMedia Media Law Law (FREE(FREE) ) (FREE(FREE) )

OfferingOffering a range a range of CPDof CPDrecognised recognised courses courses to suitto suita busy a busy schedule schedule

OfferingCOURSEOfferingCOURSE NAMEa range NAMEa range of CPDof CPDrecognised recognised courses courses to suitto suita busy a busy schedule scheduleDATEDATE FEE FEE IntroductionIntroduction to Arts, to Arts, Entertainment Entertainment and Mediaand Media Law (online)Law (online) 16 April16 April 2020 2020 Free Free COURSECertificateCOURSECertificate NAME in NAMETechnology in Technology Law (online)Law (online) DATE16 AprilDATE16 April 2020 2020 FreeFEEFreeFEE ProfessionalIntroductionProfessionalIntroduction toDoctorate Arts, toDoctorate Arts, Entertainment in EntertainmentLaw in Law and Mediaand Media Law (online)Law (online) Coming16 AprilComing16 April soon2020 soon2020 €5,000Free €5,000Free CertificateCertificate in TechnologyAdvanced in TechnologyAdvanced Negotiation Law Negotiation(online)Law (online) September16 AprilSeptember16 April 2020 2020 2020 2020 €1,650Free €1,650Free DiplomaProfessionalDiplomaProfessional in Law Doctoratein Law Doctorate in Law in Law 4Coming September4Coming September soon soon2020 2020 €4,600€5,000€4,600€5,000 DiplomaCertificateDiplomaCertificate in Trustin in Advanced Trustin and Advanced Estateand NegotiationEstate Planning Negotiation Planning 12September September12September September 2020 2020 2020 2020 €3,200€1,650€3,200€1,650 CertificateDiplomaCertificateDiploma in Lawin in Aviation Lawin Aviation Leasing Leasing and Financeand Finance 244 September September244 September September 2020 2020 2020 2020 €1,650€4,600€1,650€4,600 LLMDiploma LLMDiplomaAdvanced in Advanced Trust in LegalTrust and Legal EstatePracticeand EstatePractice Planning Planning 2612 September2612 September 2020 2020 €3,400€3,200€3,400€3,200 CertificateCertificate in AviationData in AviationDataProtection LeasingProtection Leasing Practiceand PracticeFinanceand Finance 124 October September124 October September 2020 2020 2020 €1,650€1,650 DiplomaLLM DiplomaLLMAdvanced in Advanced Finance in LegalFinance LawLegal Practice Law Practice 626 October September626 October September 2020 20202020 2020 €2,600€3,400€2,600€3,400 DiplomaCertificateDiplomaCertificate in Corporatein in Data Corporatein DataProtection Law Protection andLaw GovernanceandPractice GovernancePractice 61 October61 October 2020 2020 €2,600€1,650€2,600€1,650 DiplomaDiploma in InsolvencyFinance in InsolvencyFinance Law Law Law &Law Corporate & Corporate Restructuring Restructuring 76 October76 October 2020 2020 €2,600€2,600 DiplomaDiploma in HealthcareCorporate in HealthcareCorporate Law Law andLaw Law Governanceand Governance 86 October86 October 2020 2020 €2,600€2,600 DiplomaDiploma in RegulationInsolvency in RegulationInsolvency Law &andLaw Corporate Practice&and Corporate Practice Restructuring Restructuring 87 October87 October 2020 2020 €2,600€2,600 DiplomaDiploma in CriminalHealthcare in CriminalHealthcare Law Law andLaw Law Practiceand Practice 98 October98 October 2020 2020 €2,600€2,600 DiplomaDiploma in ConstructionRegulation in ConstructionRegulation Law Law andLaw Law Practiceand Practice 108 October October108 October October 2020 2020 2020 2020 €2,600€2,600 CertificateDiplomaCertificateDiploma in Criminalin in Conveyancing Criminalin Conveyancing Law andLaw Practiceand Practice 139 October October139 October October 2020 2020 2020 2020 €1,650€2,600€1,650€2,600 DiplomaDiploma in JudicialConstruction in JudicialConstruction Skills Skills Law and Law Decision-Makingand Decision-Making 1410 October1410 October 2020 2020 €3,000€2,600€3,000€2,600 DiplomaCertificateDiplomaCertificate in Technologyin in Conveyancing Technologyin Conveyancing & IP &Law IP Law 1513 October1513 October 2020 2020 €3,000€1,650€3,000€1,650 CertificateDiplomaCertificateDiploma in Judicialin in Agribusiness Judicialin AgribusinessSkills Skills and and Decision-Makingand Foodand Decision-Making FoodLaw Law 1714 October1714 October 2020 2020 €1,650€3,000€1,650€3,000 DiplomaDiploma in SportsTechnology in SportsTechnology Law Law& IP &Law IP Law 2115 October2115 October 2020 2020 €2,600€3,000€2,600€3,000 DiplomaCertificateDiplomaCertificate in Educationin in Agribusiness Educationin Agribusiness Law Law and Foodand FoodLaw Law 3017 October3017 October 2020 2020 €2,600€1,650€2,600€1,650 DiplomaDiploma in MediatorSports in MediatorSports Law Training Law Training 3021 October3021 October 2020 2020 €3,300€2,600€3,300€2,600 CertificateDiplomaCertificateDiploma in Educationin in Immigration Educationin Immigration Law LawLaw andLaw andPractice Practice 530 November October530 November October 2020 2020 2020 2020 €1,650€2,600€1,650€2,600 CertificateDiplomaCertificateDiploma in Mediatorin in Trademark Mediatorin Trademark Training TrainingLaw Law 1030 NovemberOctober1030 NovemberOctober 2020 2020 2020 2020 €1,650€3,300€1,650€3,300 CertificateCertificate in Immigration in Immigration Law andLaw andPractice Practice 5 November5 November 2020 2020 €1,650€1,650 CONTACTCertificateCONTACTCertificate inDETAILS Trademark inDETAILS Trademark Law Law 10 November10 November 2020 2020 €1,650€1,650 e: [email protected]: [email protected] t: t: 01 67201 4802672 4802 w: w: www.lawsociety.ie/diplomacentrewww.lawsociety.ie/diplomacentre AllCONTACT lecturesAllCONTACT lectures are DETAILS webcast,are DETAILSwebcast, allowing allowing participants participants to catch to catchup on upcourse on course work atwork a time at a timesuitable suitable to their to theirown needs.own needs. Please Please note that note the that Law the SocietyLaw Society of of eIreland’s: Ireland’[email protected]: [email protected] Diploma Centre Centre reserves reserves the right the rightto change t :to change t the: courses01 the 672 courses01 that 4802672 may that 4802 bewmay offered: bew offered: andwww.lawsociety.ie/diplomacentre course andwww.lawsociety.ie/diplomacentre course prices pricesmay bemay subject be subject to chan toge. change. 05_2005_20 All lecturesAll lectures are webcast,are webcast, allowing allowing participants participants to catch to catchup on upcourse on course work atwork a time at a timesuitable suitable to their to theirown needs.own needs. Please Please note that note the that Law the SocietyLaw Society of of Ireland’sIreland’s Diploma Diploma Centre Centre reserves reserves the right the rightto change to change the courses the courses that may that bemay offered be offered and course and course prices pricesmay bemay subject be subject to chan toge. change. 05_2005_20 DiplomaDiploma Centre Centre full page full Gazettepage Gazette ad May ad 2020_Updated.indd May 2020_Updated.indd 1 1 21/04/202021/04/2020 19:26 19:26

DiplomaDiploma Centre Centre full page full Gazettepage Gazette ad May ad 2020_Updated.indd May 2020_Updated.indd 1 1 21/04/202021/04/2020 19:26 19:26 gazette.ie Law Society Gazette May 2020 PROFILE 33

DIPLOMA CENTRE “The initial reluctance to embrace mediation is completely understandable, but within Diploma centre measures to support the profession during five or six years of mediation being introduced in Australia, contrary to expectations, it Covid-19 became more and more popular. · Two courses providing 21 free CPD hours to solicitors “To suggest mediation to your opposite number was no longer regarded – and is · All Spring courses available online not now – a sign of weakness. Lawyers have · Spring courses open to late applications developed a new set of skills in the field of · Discounts on all certificates and diplomas for solicitors on reduced negotiation – skills that were not taught hours/unemployed at law school until recent times. We have reached the stage where many lawyers earn a significant income as mediators, and a great many more earn significant income representing their clients in mediations. Introduction Certificate to Arts, in Technology n my state of Queensland in the Entertainment Law early ’90s, there was a three-year and Media Law (FREE) delay in the court list. That has (FREE) “Isince been massively reduced. Some judges have said by way of dictum that they consider that a solicitor would be negligent in failing to advise his client of the availability and benefits of mediation. Offering a range of CPD recognised courses to suit a busy schedule “For commercial practitioners, the lawyer’s Ian Hanger QC – the original ‘McKenzie Friend’ role begins before a disagreement arises. In COURSE NAME DATE FEE the commercial context, you should consider Introduction to Arts, Entertainment and Media Law (online) 16 April 2020 Free the option of inserting a mediation clause icular week to focus efforts on reducing concept some publicity. long court lists. This involved the court “The result was that many cases were Certificate in Technology Law (online) 16 April 2020 Free into a contract with a view to resolving disputes amicably, rather than resorting to writing to litigants and their solicitors, settled, the public learned about the Professional Doctorate in Law Coming soon €5,000 litigation. advising of the availability of this service, mediation process, and those lawyers – many Certificate in Advanced Negotiation September 2020 €1,650 “In the early ’90s, various Australian and encouraging their participation. It of whom had little or no experience in Diploma in Law 4 September 2020 €4,600 states introduced the concept of ‘settlement required some administration, either by conducting mediations – were able to put Diploma in Trust and Estate Planning 12 September 2020 €3,200 weeks’, whereby trained mediators offered the court or by the local law society and their newly acquired skills into practice for Certificate in Aviation Leasing and Finance 24 September 2020 €1,650 their services at a reduced fee for a part- bar association. Local media gave the more modest fees.” LLM Advanced Legal Practice 26 September 2020 €3,400 Certificate in Data Protection Practice 1 October 2020 €1,650 Diploma in Finance Law 6 October 2020 €2,600 LOOK IT UP Diploma in Corporate Law and Governance 6 October 2020 €2,600 FOCAL POINT Diploma in Insolvency Law & Corporate Restructuring 7 October 2020 €2,600 CASES: WHAT IS A MCKENZIE FRIEND? Diploma in Healthcare Law 8 October 2020 €2,600 n McKenzie v McKenzie [1970] 3 All ER A ‘McKenzie Friend’ denotes a person who such circumstances, the court would require Diploma in Regulation Law and Practice 8 October 2020 €2,600 1034 attends court for the purposes of taking overwhelming evidence that a fair hearing Diploma in Criminal Law and Practice 9 October 2020 €2,600 notes, making quiet suggestions or assisting could not be secured in the absence of LEGISLATION: Diploma in Construction Law 10 October 2020 €2,600 a lay litigant during the course of a hearing, a McKenzie friend (Murdoch and Hunt’s n Legal Profession Acts 2004-2008 Certificate in Conveyancing 13 October 2020 €1,650 but who is not qualified as a solicitor Dictionary of Irish Law). (Australia) Diploma in Judicial Skills and Decision-Making 14 October 2020 €3,000 or barrister and who does not act as an The principle of the McKenzie Friend is n Legal Services Act 2007 (UK) Diploma in Technology & IP Law 15 October 2020 €3,000 advocate at the hearing. accepted in courts of law in Ireland (north Certificate in Agribusiness and Food Law 17 October 2020 €1,650 In the ordinary course of events, a and south), England and Wales, New LITERATURE: Diploma in Sports Law 21 October 2020 €2,600 McKenzie Friend may attend and assist a lay Zealand, and Australia. A similar, modified n Fee-charging McKenzie Friends (Legal Diploma in Education Law 30 October 2020 €2,600 litigant, but may not act as an advocate. A principle exists in Singapore. Services Consumer Panel, April 2014) Diploma in Mediator Training 30 October 2020 €3,300 McKenzie Friend is present in the capacity as A McKenzie Friend may be liable for any n Leanne Smith, Emma Hemmings and a member of the public and, accordingly, will misleading advice given to the litigant in Certificate in Immigration Law and Practice 5 November 2020 €1,650 Mark Sefton, A Study of Fee-charging normally not be permitted in proceedings person, but is not covered by professional McKenzie Friends and their Work Certificate in Trademark Law 10 November 2020 €1,650 required to be held “otherwise than in indemnity insurance. The role is distinct in Private Family Law Cases (Cardiff CONTACT DETAILS public” – for example, in matrimonial from that of a ‘next friend’ or of an University and the University of e: [email protected] t: 01 672 4802 w: www.lawsociety.ie/diplomacentre matters. To permit a McKenzie Friend in amicus curiae. Bristol, June 2017) All lectures are webcast, allowing participants to catch up on course work at a time suitable to their own needs. Please note that the Law Society of Ireland’s Diploma Centre reserves the right to change the courses that may be offered and course prices may be subject to change. 05_20

Diploma Centre full page Gazette ad May 2020_Updated.indd 1 21/04/2020 19:26 34 DEFAMATION May 2020 Law Society Gazette gazette.ie

AT A GLANCE

n Online reviews have provoked a growing volume of litigation n Fake reviews can be positive in order to fraudulently benefit a party – or negative to damage it n Courts that have considered proceedings with an online element have held that the nature of the medium should be factored into any assessment

Online customer reviews can make or break a business and, when contentious, can break the laws of fraud, defamation and intentional infliction of emotional suffering. But they are also a pivotal means by which businesses attract custom. Michael O’Doherty vents his spleen

MICHAEL O’DOHERTY IS A PRACTISING BARRISTER AND THE AUTHOR OF INTERNET LAW (BLOOMSBURY PROFESSIONAL)

here was a time when reviews – of a movie, restaurant or hotel – were confined to the pages of a newspaper and penned by a journalist whose opinion was viewed as both informed and impartial. The advent of the internet age, however, has placed the required tools for a review – an engagement, an opinion and a keyboard – at everyone’s fingertips. Online reviews are primarily hosted on three distinct fora. They can be posted on a company’s own website or Google listing. They can be posted on third-party websites

The author wishes to thank John Maher BL for reviewing this article REVIEWING THE SITUATION gazette.ie Law Society Gazette May 2020 DEFAMATION 35 PIC: SHUTTERSTOCK

COURTS THAT HAVE CONSIDERED PROCEEDINGS WITH AN ONLINE ELEMENT HAVE HELD THAT THE NATURE OF THE MEDIUM SHOULD BE FACTORED INTO ANY ASSESSMENT OF WHETHER A STATEMENT CAN BE CONSIDERED DEFAMATORY 36 DEFAMATION May 2020 Law Society Gazette gazette.ie

IN CONSIDERING AN APPLICATION TO HAVE PROCEEDINGS STRUCK OUT AGAINST AMAZON AS A CO-DEFENDANT, THE COURT NOTED THE ‘CATCH-22’ SITUATION THAT WEBSITE HOSTS OFTEN FIND THEMSELVES IN WHEN IT COMES TO COMMENTS OR REVIEWS POSTED BY USERS

that market the goods or services, such as v Gill, with Peart J pointedly remarking which claimed that it “pays for false reviews, amazon.co.uk. Alternatively, they can appear about the damage that could be inflicted by loses 80% of his cases”. Noting that the on third-party websites that specialise in anonymous, unverified comments on the defendant had advertised on his Twitter providing reviews of goods and services, internet. account that he was willing to post reviews such as tripdvisor.com. Such commentary is Why do people post fake reviews? In in return for payment, the court found for unfiltered, often anonymous and, because it many cases, the intention is to damage the plaintiff. can be viewed by all internet users, its impact the particular person or business, perhaps is far-reaching. out of spite, through the posting of a Defamation and online reviews This has resulted in online reviews negative review. In a recent Canadian case, For critical but bona fide reviews, the provoking a growing volume of litigation, Zoutman v Graham, the plaintiff doctor had traditional defences of truth and honest with an increasing issue being that of ‘fake’ testified as an expert witness in support opinion will offer a degree of protection reviews – that is, reviews that are posted by of a physician, the latter having attended against any claim for defamation, so long authors who claim to have purchased goods to a patient who subsequently died. The as the reviewer does not make factually or experienced services that they have not. defendant was the brother of the deceased, untrue statements.

These can take the form of either positive who posted an extremely critical review of PIC: SHUTTERSTOCK reviews to fraudulently benefit a particular the plaintiff on a medical-rating website, urthermore, courts that have party, or negative ones so as to damage it. warning potential customers against using considered proceedings with an his services. Crucially, the reviewer falsely online element have held that the The nature of proceedings purported himself to have been a patient of Fnature of the medium should be factored Various proceedings involving the posting the plaintiff. The court rejected the defence into any assessment of whether a statement of customer reviews on the internet have of fair comment, noting that the defendant can be considered defamatory. Britain’s engaged with the laws of fraud, defamation, was motivated by malice, and awarded the Supreme Court recently stated in Stocker v and intentional infliction of emotional plaintiff $50,000 in damages. Stocker that internet users who read material suffering, with proceedings often involving Sometimes, however, the motive is online may approach it differently to content all three. financial gain in return for a positive review. that they read in more traditional media. It An analysis of ‘fake-review factories’ – where should be stressed that this specific issue has ne of the first cases of online contractors are paid to post fake reviews, not yet received juridical consideration in defamation in this jurisdiction, often on an industrial scale, in return for this jurisdiction, and such decisions therefore Maguire v Gill, concerned postings free goods or payment – is beyond the scope are merely of persuasive authority. madeO to an early incarnation of customer of this article. By way of example, however, In the Canadian case of Acumen Law review sites. Rateyoursolicitor.com was a in September 2018, Lecce Regional Court Corporation v Nguyen, the defendant website that purported to allow users to rate in Southern Italy sentenced the owner expressed his dissatisfaction with legal legal professionals, but was little more than of a review company, Promo Salento, to representation he had received, via a vehicle for a small number of people to air nine months in prison for writing fake comments on the plaintiff’s Google Plus their personal grievances. In 2006, the High TripAdvisor reviews of hotels and restaurants profile page: “I spent nearly $2,000 for Court granted an injunction to the plaintiff in return for a fee. In the English case The [lawyer] to lose a case for me … Anywhere barrister to prevent the further publication Bussey Law Firm PC & Anor v Page, the else would be moore [sic] helpful. worstest of highly defamatory remarks. Six years later, defendant was accused of defaming the [sic] lawyer.” The court held that a the issue was again considered by the High plaintiff law firm and its principal with a reasonable reader would understand that Court against the same defendant in Tansey review on the firm’s Google Maps profile, not all reviews were going to be positive, gazette.ie Law Society Gazette May 2020 DEFAMATION 37 PIC: SHUTTERSTOCK

and their opinion of the plaintiff would not the defendant with litigation should primarily to reflect the loss of business that be damaged by the comments, awarding she complain about him. Evidence was Mr Cheng claimed had been caused by the the lawyer a token $1 in damages. The adduced of a near 25% fall in the number negative review. court placed emphasis on the fact that the of enquiries to the plaintiff’s practice author was a disgruntled client, had posted post-publication, and the court awarded Liability of intermediaries the review in the heat of the moment and, the plaintiff Aus$530,000 (€330,000 When an application is made against an interestingly, that the poor grammar of the approximately). internet intermediary, such as Google, post was a sign that its defamatory potential Twitter or Facebook, it often takes the form would be reduced – a novel concept that n February 2020, an Australian lawyer of a request for them to reveal the identity has not received any consideration in this brought proceedings for a scathing of an anonymous online review that they are jurisdiction. review of his firm, which was posted by a hosting. The liability of such intermediaries A different decision was recently arrived MsI Isobel Lok in October 2018. The lawyer for user-generated content that they host at, however, by the Supreme Court of New claimed that Ms Lok had never been a client has, however, been the subject of increasing South Wales in Tavakoli v Imisides. A plastic of his and, when requested to take it down, consideration. In broad terms, article 14 of surgeon issued proceedings in respect of a Ms Lok simply reposted the review under the eCommerce Directive provides that such Google review in which the defendant had different names. The request for removal organisations will not be held responsible for claimed that the surgeon was incompetent, was also made to Google, but it took the any unlawful material they host unless they that he had charged for procedures he had platform over a month to delete it. The have been notified of its existence, and then not performed, and that he had threatened court awarded the plaintiff Aus$750,000, fail to act “expeditiously” to remove it. LAW SOCIETY PROFESSIONAL TRAINING

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7.5 Management & Available Professional Development GDPR – Online Course €95 Now Skills or 7.5 hours Regulatory Matters (by eLearning)

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Employment Law Masterclass: 30 April 6.5 General (by eLearning) €210 €255 Practical problems, Common Problems – Online

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LSPT Gazette ad May 2020 1.indd 1 21/04/2020 19:25 gazette.ie Law Society Gazette May 2020 DEFAMATION 39 LAW SOCIETY PROFESSIONAL TRAINING

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THE COURT PLACED EMPHASIS ON THE FACT Due to current government restrictions put in place to help stem the spread of Covid19, we at THAT THE POOR GRAMMAR OF THE POST WAS Law Society Professional Training and Law Society Finuas Skillnet have moved courses online where possible. See below for the full list of available courses and to book, A SIGN THAT ITS DEFAMATORY POTENTIAL visit www.lawsociety.ie/onlinecourses WOULD BE REDUCED

The potential liability of the website Google, which had refused to take down Rights Act, attempts to tackle the increasingly DATE EVENT CPD HOURS DISCOUNTED FULL FEE operator for reviews posted on its website reviews that claimed he had “butchered” contentious issue of online reviews, and FEE* has also been considered. In Zoutman, the patients, was “a fraud” and “an illicit drug particularly the potential liability of the plaintiff also brought proceedings against user”. According to documents filed by platform hosting the review. the websites that hosted the comments, but Google, one aspect of their defence is that As the use of such reviews increases, 5 Management & Professional the doctor had used his Google Business so their importance grows – whether as Available Online Computer Training these were settled before trial. In McGrath v Development Skills €40 platform to attract business, often using a means to promote a business through Now Touch Typing Dawkins, the English High Court considered (by eLearning) “puffery and hyperbole” to describe his positive reviews, or as a means to damage a claim for defamation relating to comments practice. He had consequently invited robust them through negative ones. And, given made in the review section for a book that public criticism, including reviews of his the widespread use of anonymity and the was on sale on amazon.co.uk. In considering 7.5 Management & work, and it is reasonable he should be the resultant difficulty in identifying the authors, an application to have proceedings struck Available Professional Development subject of such criticism. the intermediaries that host the comments GDPR – Online Course €95 out against Amazon as a co-defendant, Now Skills or 7.5 hours Regulatory are likely to come under increased focus. Matters (by eLearning) the court noted the ‘catch-22’ situation that website hosts often find themselves here is no specific legislation in when it comes to comments or reviews governing the use of online reviews in Available Termination of Employment Contract posted by users, namely that by engaging in this jurisdiction. It is unclear whether 5 General (by eLearning) €95 LOOK IT UP Now Masterclass – Online any form of monitoring of such content, it reviewsT that traders publish on their websites may leave itself open to liability for any would be considered to be ‘representation CASES: Employment Law Masterclass: unlawful material that ‘slips through the by the trader’ for the purposes of bringing • Acumen Law Corporation v Nguyen 30 April 6.5 General (by eLearning) €210 €255 Practical problems, Common Problems – Online net’. However, this case pre-dates guidelines it under sections 42-46 of the Consumer [2018] BCSC 961 published by the EU in 2017, which suggest Protection Act 2007, which cover the use of • Maguire v Gill (unreported, High misleading commercial practices. Enduring Powers of Attorney Masterclass – that intermediaries that monitor such Court, 12 September 2006) 19 May 3.5 General (by eLearning) €210 €255 The recently-adopted EU Online content will not necessarily lose the Enforcement and • McGrath v Dawkins [2012] EWHC B3 protection of the eCommerce Directive. Modernisation Directive 2019 is significant, as (QB) it recognises the increasing importance that 22/23 9 General and 1 Regulatory • Stocker v Stocker [2019] UKSC 17 Fundamentals of Clinical Negligence – Online €350 €425 consumers place on reviews when they make May Matters (by eLearning) Use of reviews as advertising • Tansey v Gill [2012] IEHC 42; 1 IR 380 Online reviews are more than simply a purchasing decisions. The directive provides • Tavakoli v Imisides (No 4) [2019] platform for customers to air their opinions. for increased transparency when traders NSWSC 717 Wills, Probate, Estates & Tax Masterclass €850/ or 05/06 9 General and 1 Regulatory €700/ or They are also a pivotal means by which utilise consumer reviews to promote their • The Bussey Law Firm PC v Page June – Module 1 & 2 €425 per Matters (by eLearning) €350 per module businesses attract custom. It is arguable, goods or services, with article 3(4) including [2015] EWHC 563 (QB) 12/13 Attend module 1 or module 2 or both module June therefore, that when a company uses the requirement to publish details as to • Zoutman v Graham [2019] ONSC positive reviews to promote its business, how the trader ensures that such reviews 2834 it should be considered to be a form of are authenticated, that they come from advertising, and therefore subject to the users who have genuinely availed of their To book one of our Online CPD courses, please visit www.lawsociety.ie/onlinecourses LEGISLATION: relevant consumer laws. services, and to reveal whether there was any • Consumer Protection Act 2007 or email us at [email protected] for more information In a case currently being litigated in commercial relationship with the person(s) • Directive on Electronic Commerce Australia, a doctor is seeking to make providing the review. (2000/31/EC) Google liable for negative reviews that were It will be interesting to observe the degree • Enforcement and Modernisation Contact a member of the Law Society Professional Training team on posted on his Google Business online listing. to which forthcoming domestic legislation, Directive (2019/2161/EU) The doctor claims that he was defamed by in the form of the proposed new Consumer P 01 672 4802 E [email protected] F 01 672 4890 *Applicable to Law Society Finuas Skillnet 5_20

LSPT Gazette ad May 2020 1.indd 1 21/04/2020 19:25 40 TAXATION May 2020 Law Society Gazette gazette.ie

Recent Tax Appeal Commission decisions bear thinking about when settling an employment dispute concerning a termination payment on retirement or removal from office, writes Jeananne McGovern

JEANANNE MCGOVERN IS A DUBLIN-BASED BARRISTER

ax Appeal Commission decisions 12TACD2020 and 13TACD2020 considered how termination payments on retirement or removal from office are treated for tax purposes and how, if an employment dispute concerning such payments is settled or mediated successfully, such payments are to be considered in a written settlement agreement. While this article does not propose dealing with all of the varied and complex legislation concerning taxable income, I will address certain relevant

AT A GLANCE n Recent Tax Appeal Commission cases provide clarity on two points in employment disputes concerning A TAX the termination of employment: the description of any payment made and the mediation process n Taxing statutes are construed strictly ON BOTH and, therefore, the wording of the section must be examined carefully n It is only the wording of the section that can be examined and interpreted by an appeal commissioner FRONTS gazette.ie Law Society Gazette May 2020 TAXATION 41 PIC: WIKIMEDIA COMMONS

THE APPEAL COMMISSIONER WAS SATISFIED THAT SO MUCH OF THE PAYMENT DESCRIBED AS ‘SPECIAL DAMAGES’ AND CALCULATED AS LOSS OF EARNINGS WAS A PAYMENT IN RESPECT OF REMUNERATION AND, THEREFORE, TAXABLE ACCORDINGLY 42 TAXATION May 2020 Law Society Gazette gazette.ie

provisions arising from both of these cases. connected parties (for example, an employer, and a third company in 2014, Unless otherwise specified, all references to employer and a relative, an employer and prior to the hearing of the High Court legislation relate to the Taxes Consolidation a director), proceedings. The agreement recited the Act 1997. • Had the claim been made to a relevant terms upon which the parties agreed to settle Section 123 provides for the general tax authority, it would have been a bona fide matters arising from the proceedings, the treatment of payments made on retirement claim under a relevant act (for example, taxpayer’s employment and the termination or removal from office. Payments received a stateable claim, in the correct forum, of the employment. Of particular note on the termination of an employment are made within time), was the clause concerning ‘payments and taxable; however, section 192A(6) provides • Had the claim not settled by agreement, it arrangements’, which provided for, among that payments to which that section applies must have been one that was likely to have other things, a payment of €95,000 for shall be exempt from income tax. been the subject of a recommendation, ‘special damages’, which was broken down decision or determination under that act between loss of earnings, medical expenses, Exemptions by a relevant authority that a payment be miscellaneous expenses, and future losses. Section 192A exempts certain payments made to the person making the claim, It was the charge to tax of this payment that made under a ‘relevant act’ to an employee • The amount of the payment must not was appealed. or former employee by their employer, exceed the maximum payment allowed by It was submitted, on behalf of the made in accordance with a recommendation, the relevant act, had the claim not been taxpayer, that the payment described decision or determination by a ‘relevant settled by agreement. as ‘special damages of €95,000’ was not authority’. A ‘relevant act’ is defined as payment in respect of remuneration, but meaning “an enactment which contains he section also provides that copies of represented a payment coming within provisions of the protection of employees’ the agreement and the statements of section 192A(4) and, consequently, the rights and entitlements for the obligations claim shall be made available to the exemption in section 192A(6) applied. The of employers towards their employees”. RevenueT Commissioners on request. taxpayer submitted that the payment was Examples of such acts include the Redundancy Section 192A(5) provides that the an out-of-court compensation payment Payments Acts 1967-2014 and the Unfair exemptions will not apply in relation to quantified by reference to salary, rather than Dismissals Acts 1977-2015. A ‘relevant payments in respect of remuneration, a payment in respect of remuneration. authority’ includes the Workplace Relations however described, including arrears of It was contended that the payment was Commission, the Labour Court and/or the remuneration or to any payments falling not a substitute for employment income High Court. within section 123. due and payable; rather, it represented the Section 192A(3) applies to a payment impact on the taxpayer of not being able to made in accordance with a settlement arrived Amended assessment work full-time as a result of the personal at under a mediation process provided for in Case 13TACD2020 concerned an appeal injuries sustained (arising from workplace a relevant act. to a Notice of Amended Assessment to induced stress, bullying and harassment), and Section 192A(4) provides an exemption Income Tax for the year 2012, which the the figure was made up of medical costs and for a payment made in settlement of a claim taxpayer appealed. The appellant taxpayer future net loss of earnings. provided certain conditions are met: was an employee who had issued High Court It was Revenue’s position that the payment • The agreement must be evidenced in proceedings against the employer in 2012. described as ‘special damages of €95,000’ writing, A settlement agreement was subsequently was a payment in respect of remuneration • The agreement must not be between entered into between the taxpayer, the and, consequently, section 192A(5) applied to exclude the payment from exemption under section 192A(6) and, therefore, it was taxable under section 123 as a payment made on retirement or removal from office. The appeal commissioner analysed the agreement and, in particular, the schedule of FOR THE PROVISIONS OF special damages. She stated at paragraph 14: “In considering if a payment made under an SECTION 192A(3) TO APPLY, agreement has tax consequences, and as the terms agreed by the parties are embodied in THE SETTLEMENT SHOULD the agreement, the agreement is considered as a whole with due regard for the words BE ARRIVED AT UNDER expressed in the agreement, which are words chosen by the parties.” A MEDIATION PROCESS She observed the difference between general damages and special damages – the PROVIDED FOR IN A former broadly viewed as damages for pain and suffering (non-pecuniary loss) and the RELEVANT ACT latter as pecuniary loss. The settlement gazette.ie Law Society Gazette May 2020 TAXATION 43 PIC: SHUTTERSTOCK

Classic flanking manoeuvre agreement provides for these separate and was calculated with reference to the mechanisms were exhausted and whether categories and, in her view, the schedule income the taxpayer would have earned if all issues should be referred to the Labour of special damages sought to quantify in full-time employment. If the taxpayer Relations Commission for a hearing before a the pecuniary loss due to the taxpayer had been able to earn that income in the rights commissioner. The taxpayer’s solicitor arising from her High Court proceedings. course of employment, that income would also raised the possibility of mediation, The inclusion of medical expenses and have been taxable. For these reasons, the which subsequently took place, resulting in miscellaneous expenses supported this view. appeal commissioner was satisfied that so the aforementioned severance agreement. much of the payment described as ‘special It was Revenue’s position that the payment he appeal commissioner stated at damages’ and calculated as loss of earnings did not come within section 192A(3) and, paragraph 19: “The documentary was a payment in respect of remuneration consequently, was not exempt from income evidence does not support the and, therefore, taxable accordingly. The tax under section 192A(6). More specifically, submissionT by the appellant that the payment exemption in section 192A did not apply. the payment was not made under a of €95,000 was a compensation payment mediation process provided for in a relevant quantified by reference to salary only. The Severance agreement act. Revenue also submitted, among other settlement agreement describes the payment Decision 12TACD2020 concerned sections things, that the payment did not attract the as ‘special damages’ and the schedule of 123 and 192A(3). The agreement in this exemption as an out-of-court settlement special damages refers to ‘loss of earnings’ case was entitled ‘severance agreement’, as, for the payment to be an out-of-court for past and future losses. It is noteworthy which made provision for, among other settlement, the matter must be advanced to that the schedule of special damages takes things, a payment of €65,000 to the the point where there was a real prospect a deduction for the income earned by the appellant taxpayer. Of significance in this that the matter would be presented to a appellant for her part-time employment in case was that the severance agreement arose court for a decision. the quantification of loss of earnings. In my on foot of a mediation held between the opinion, the schedule of special damages was taxpayer and his former employer prior to he appeal commissioner determined a calculation to place the appellant as close the issue of any legal proceedings. that the payment made to the taxpayer as was practicable to that which the appellant During the course of his employment, did not qualify for exemption under would have enjoyed had the appellant had the the taxpayer made a formal complaint of sectionT 192A(3). The terms of the severance earning capacity of full-time employment.” bullying, which was investigated by an agreement were clear and stated that the The appeal commissioner went on to external investigator who did not uphold payment was made on the termination of state that the statutory language in section the complaint. The taxpayer was dissatisfied the employment of the taxpayer. While a 192A(5)(a) was broadly drawn. The payment with the investigation and sought to successful mediation had taken place, there was described by the parties as special appeal the findings. By way of letter from was no reference in the agreement to the damages and identified separately from the his solicitor, clarity was sought as to the payment being made by the employer for ‘damages for personal injury’. The payment correct forum for that appeal. The solicitor breach of employment rights of the taxpayer was further identified as ‘loss of earnings’ sought confirmation that all internal appeal arising from his complaint of bullying. w w

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You can sign up to a paid crisis relief panel forYou homeless can sign upand to disability a paid crisis services relief if panel you: for homeless and disability services if you: A Qualification in social care, social work,A Qualification health care, in social psychology care, social or relatedwork, health fields care,or, psychology or related fields or, Work experience with vulnerable groupsWork experience such as: homeless with vulnerable people, disability,groups such the as: eldery, homeless refugees people, or childrendisability, in the care eldery, or, refugees or children in care or, Experience and interest in working asExperience a cleaner and or cook interest in working as a cleaner or cook CRISIS COVERCRISIS COVERINITIATIVE INITIATIVE www.crisiscover.ie [email protected] HELP KEEP VITAL SERVICES OPEN [email protected] HELP KEEP VITAL SERVICES OPEN gazette.ie Law Society Gazette May 2020 TAXATION 45

CARE MUST BE TAKEN WHEN DESCRIBING A PAYMENT IN A SETTLEMENT AGREEMENT. REVENUE WILL LOOK AT THE AGREEMENT AS A WHOLE AND WILL LOOK TO THE TRUE NATURE OF THE PAYMENT AND NOT SIMPLY THE DESCRIPTION THEREOF

The appeal commissioner stated: examined carefully. While there is often establishing the mediation was concluded “Section 192A(3) provides that a payment Revenue guidance on the interpretation of under a provision of a relevant act, or may be exempt from tax if it is made with sections, it is only the wording of the section produce a claim form to the appropriate a settlement agreement arrived at under that can be examined and interpreted by an forum, then it appears that the section will a mediation process provided for in a appeal commissioner. not apply. relevant act. There is no evidence that These cases provide helpful guidance and a claim was made by the appellant to a feature of both these cases is clarity on two points in employment disputes relevant authority. The mediation process a reference to ‘out-of-court’ concerning the termination of employment, between the appellant and the employer is not settlements. This point was namely, the description of any payment identified as a mediation process which has recognisedA by the appeal commissioner made and the mediation process. its origins in a relevant act. The evidence in 12TACD2020, where she notes that It is clear that care must be taken when presented is the parties themselves agreeing the wording in the tax and duty manual describing a payment in a settlement to mediation. For the provisions of section published by the Revenue Commissioners agreement. Revenue will look at the 192A(3) to apply, the settlement should refers to ‘out-of-court’ settlements; however, agreement as a whole and will look to the be arrived at under a mediation process section 192A(4) makes no reference to such true nature of the payment and not simply provided for in a relevant act” (emphasis language. In order to avail of the exemption, the description thereof. added). the section in this case requires that the Secondly, care must also be taken when payment is made “in accordance with a entering into the mediation process, and Words with friends settlement arrived at under a mediation thought should be given as to when this It is worth bearing in mind that taxing process provided for in a relevant act”. is appropriate in terms of any termination statutes are construed strictly. Therefore, Unless a taxpayer can rely on a specific payment that may ensue and whether section the wording of the section must be provision in the employment legislation 192A(3) is complied with.

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Make sure you keep up to date: subscribe on www.lawsociety.ie/enewsletters or email [email protected]. 46 WELLBEING May 2020 Law Society Gazette gazette.ie

AT A GLANCE

n Mindfulness trains us to be present and helps us to respond creatively to what happens, instead of being stuck in habitual and automatic patterns of behaviour n Some proven benefits of practising mindfulness include improved memory and increased ability to concentrate and focus WHERE IS MY MIND? PIC: SHUTTERSTOCK

The practice of mindfulness gives us a chance to pause. We can only feel the solid ground under our feet when we stop rushing to the next moment. Barry Lee gets some headspace

BARRY LEE IS FOUNDER OF MINDFULNESS FOR LAW AND WORKED AS A CORPORATE AND COMMERCIAL LAWYER FOR OVER TEN YEARS

t this moment in time, there is probably more interest in mindfulness than ever before, and it’s easy to understand why. There is a lot of anxiety in the world right now. Many of us are stretched thin: balancing demanding workloads with home-schooling, looking after elders, and worrying about what will happen in the weeks and months ahead. The machine has ground to a halt and, for many of us, this brings the added stress of financial uncertainty. In spite of cocooning and self-isolating, we are still being bombarded with information. The fragile boundaries between ‘work’ and ‘home’ have dissolved. Relationships come under pressure when we are living in such close proximity with only a few people all of the time. Our clients are feeling all of this too. Right now, for many of us, it’s hard. In the midst of all this, it’s easy to lose ourselves in busyness and distraction. gazette.ie Law Society Gazette May 2020 WELLBEING 47

MINDFULNESS IS BEST UNDERSTOOD AS AN EXPERIENCE. YOU CAN’T READ A BOOK AND REALLY KNOW WHAT IT IS, IN THE SAME WAY THAT YOU CAN’T READ A RECIPE AND KNOW WHAT THE MEAL TASTES LIKE 48 WELLBEING May 2020 Law Society Gazette gazette.ie

Distraction is a known coping strategy and, thought I was having a heart attack and Luckily, I did confide in a few close friends. occasionally, it can be helpful. However, went straight to hospital. The doctors kept One of them told me about a colleague often compulsive busyness and distraction me in for a short while for observation who used Buddhist meditation as a way only make us feel worse, especially if we and sent me home, telling me that I was of coping with anxiety. In hindsight, are staring at our screens all day, mindlessly physically fine. I didn’t feel fine and took I’m very lucky that I had that particular consuming information. a week off work. I knew that something conversation. Another friend could just Sometimes, the wisest action – the most serious had happened to me, and I was as easily have suggested Valium (there is compassionate thing we can do for ourselves convinced that the doctors had made a obviously a time and a place for medication, – is to pause. The practice of mindfulness mistake. I went for a cardiac ultrasound but it’s probably not the best way to deal gives us this chance to pause. We can only scan, and another doctor told me that he with anxiety in the long run). feel the solid ground under our feet when we could find no physical abnormalities. He So there I was in my first meditation stop rushing to the next moment. said that I might be suffering from stress class. I had come straight from work, and and that the symptoms I experienced were was relieved when I wasn’t the only person Dazed and confused consistent with acute anxiety. Knowing wearing a suit. I remember praying that The first time I went to a meditation that I was okay physically helped a bit at no one I knew would see me entering or class in 2007, I had a mild panic attack in the start but, after a while, the initial leaving the building. the reception area. My face felt hot. My relief wore off. breathing was shallow and rapid. I couldn’t I tried to manage my anxiety in lots of hirteen years ago, meditation wasn’t get enough air. I was dizzy, and I felt like different ways. I exercised. I was careful nearly as popular as it is now. There I was going to faint. I managed to conceal about the food I ate. I cut out coffee. I tried wasn’t the same abundance of articles how I was feeling, and I think I managed to to get more sleep, which is very difficult inT the newspapers. ‘Mindfulness’ and engage in some polite small talk with a few when you are anxious. I soon discovered ‘resilience’ weren’t the buzzwords they are of the other people in the room. that alcohol was a temporary balm. If I had today. There was no talk of neuroscience or a few drinks with my friends, I relaxed, but neuroplasticity. There were no mindfulness n the six months prior to that day, I had the next day tended to be much worse. It’s apps. Workplaces didn’t have a ‘wellness become accustomed to having panic easy for me to understand why many people week’. There was definitely a stigma around attacks. I knew that they could come on turn to self-medicating with alcohol. mental health. atI any moment. I had been in meetings with I had some good days, but the fear of I was sceptical. Under normal clients when they struck. When it happens, another attack always hung over me. I circumstances, I would never have been it feels like you are observing the scene in was less inclined to go to social functions, drawn to this sort of thing. If someone had front of you from behind a pane of glass. which could trigger anxiety. I had trouble suggested a meditation class to me a year The sounds around you echo, and everything sleeping. I’m sure that the quality of my before, I might have rolled my eyes – but seems strange. You sit there trying to look work suffered. when you are suffering, you tend to be a calm, while your heart beats furiously and I didn’t tell anyone in work what I was bit more receptive. The teacher was kind your mind races out of control. Eventually going through. I didn’t tell my girlfriend. and softly spoken. He explained a little it passes and you move on, exhausted I was embarrassed, and I didn’t want my bit about the concept, and we spent most and embarrassed. After six months, I had colleagues and the people close to me to of the evening practising some of the become an expert at concealing my anxiety. look at me differently, as if I was more techniques. It takes a lifetime to master When I first had a panic attack, I was fragile than everyone else and unable meditation, but something in the class 25 and had just qualified as a solicitor. I to cope with the normal stresses of life. resonated with me. I had the sense

UNDER NORMAL CIRCUMSTANCES, I WOULD NEVER HAVE BEEN DRAWN TO THIS SORT OF THING. IF SOMEONE HAD SUGGESTED A MEDITATION CLASS TO ME A YEAR BEFORE, I MIGHT HAVE ROLLED MY EYES – BUT WHEN YOU ARE SUFFERING, YOU TEND TO BE A BIT MORE RECEPTIVE gazette.ie Law Society Gazette May 2020 WELLBEING 49

DISTRACTION IS A KNOWN COPING STRATEGY AND, OCCASIONALLY, IT CAN BE HELPFUL. HOWEVER, OFTEN COMPULSIVE BUSYNESS AND DISTRACTION ONLY MAKE US FEEL WORSE that this was something that could really help length of time will tell you, although this • Enhanced communication and me. I left feeling a little bit lighter. sounds simple, it is far from easy. The interpersonal skills, The teacher told us that, in order for us mind is conditioned to be restless and is • Increased resilience, and to benefit, we needed to practice regularly, very easily distracted. We would much • Improved memory. and so I did. Every morning, I woke an rather relive moments from the past or hour earlier than usual and listened to the anticipate what may happen in the future, This year, a meta-analysis of 78 randomised guided practices on a CD. Sitting quietly, instead of bringing our full attention to controlled trials conducted between 1989 gently resting my attention on the sensations the present moment. For many of us, and 2019, with almost 6,000 participants, of breathing, the mind naturally started to this natural tendency means a lot of time showed mindfulness-based interventions settle. There was a feeling of space. Tension spent ruminating, worrying, and planning significantly improved attention, memory in the body could release. – which can be a source of unhappiness and processing speed. I found myself enjoying my walk to work. and can exacerbate stress and anxiety. I was better able to concentrate during the Mindfulness trains us to be present. It Start me up day. I wasn’t consumed with thoughts about allows us to respond creatively to what I would recommend finding an experienced the future and the past in the same way I happens, instead of being stuck in habitual and qualified teacher. It’s very different had been. I wasn’t lying awake in bed at 3am and automatic patterns of behaviour that to learning about mindfulness from a ruminating about potential mistakes I might may not serve us. book or an app. In Ireland, there is now a have made during the day or what my ‘to professional body for mindfulness teachers do’ list was for tomorrow. That course lasted ver the last 30 years, a significant (the Mindfulness Teachers’ Association of six weeks and, by the end of it, I felt like a amount of scientific research has Ireland), so you can easily find a teacher who different person. been carried out in relation to the has been properly trained and who receives In the 13 years that followed, I came to see benefitsO of mindfulness-based interventions. ongoing regular supervision. my morning meditation practice as a normal As with anything, the quality of research Two courses stand out in terms of having part of my daily routine, just the same as varies. Some studies are well designed a very extensive and well-documented brushing my teeth. It was something I did and stand up to rigorous scrutiny. Others evidence base: every day in order to be calm and happy. It are more questionable. One thing that • Mindfulness-based Stress Reduction helped me perform better in work, and it also is certain is that we have only begun to (MBSR), an eight-week course developed helped me immensely in my personal life. scratch the surface in terms of our scientific by Jon Kabat Zinn in the University of understanding of how mindfulness and other Massachusetts Medical School, and Are you experienced? forms of meditation affect the body and • Mindfulness-based Cognitive Therapy Mindfulness is best understood as an mind. (MBCT), an eight-week course developed experience. You can’t read a book and really That said, there is a significant body by professors Williams, Segal and Teasdale know what it is, in the same way that you of scientific evidence that has been at Oxford University. can’t read a recipe and know what the meal gathered over the last 30 years by some tastes like. of the most well-respected academic For some, a shorter course might serve as In very simple terms, the practice of institutions confirming the many benefits of an easier introduction. I have found that mindfulness involves paying attention to mindfulness, such as: six-week courses (an hour a week) work well exactly what is happening in the present • Reduced stress and anxiety, in law firms and, at the moment, online moment, in a gentle and non-judgemental way. • Improved ability to concentrate and focus, mindfulness courses are a good replacement As anyone who has practised for any • Increased creativity, for face-to-face ones. 50 ANALYSIS News in depth May 2020 Law Society Gazette gazette.ie

LIFE IN TECHNICOLOR COVID-19 has wrestled the legal world into embracing the technological advantages of the 21st century, but not every matter can be dealt with remotely, say judges. Mary Hallissey reports

MARY HALLISSEY IS A JOURNALIST WITH THE LAW SOCIETY GAZETTE

key group of commer- PIC: CIAN REDMOND video-link to prisons and vid- cial litigation lawyers has eoconferences with remote wit- been voluntarily helping nesses. Athe Courts Service to establish Courts Service chief executive remote court hearings during the Angela Denning said that exist- current COVID-19 pandemic. ing technology had been repur- The Commercial Litigation posed to enable judges, registrars, Association of Ireland (CLAI) has and parties to cases to join virtual pooled its collective experience courtrooms.

and knowledge to assist in devel- A virtual meeting room will be PIC: SHUTTERSTOCK oping how remote hearings will set up for each court sitting, using work in this jurisdiction. In this a service powered by the PEXIP REMOTE work, the CLAI is following the video-streaming app. Participants lead of Chief Justice Frank Clarke can join a PEXIP session from HEARINGS and court presidents, who jointly other video-streaming services WILL NOT BE issued a press statement before – including Skype, Zoom, Cisco Webex and Teams – without the Easter, stating that they would Chief Justice Frank Clarke SUITABLE FOR do what they could to get remote requirement that all parties use hearings up and running for the out of the blocks, piloting remote either the same app or a managed ALL CASES, AND new legal term. technology with a short case- integration tool to connect. THE CAPACITY The voluntary team is hope- management hearing. The court Justice Minister Charlie Fla- ful that the establishment of the displayed the sitting on screens nagan warmly welcomed the TO DEAL WITH principles of remote hearings will for court reporters. The Court of Supreme Court’s first use of video have global application across all Appeal also held remote hearings technology to hear cases remotely. LARGE NUMBERS the courts in due course. the same morning. Commenting on 20 April, he said: OF REMOTE The Courts Service’s stated “I believe that today’s innovative goal was to have remote hearings Remote observers pilot sitting is a landmark day for HEARINGS up and running by the start of Other courts will roll out the the courts, and one that will fur- the new legal term on 20 April. technology in suitable cases over ther contribute to the efficient SIMULTANEOUSLY Testing, piloting and mock the coming weeks, a Courts Ser- administration of justice in our WILL BE hearings were undertaken for vice spokesman confirmed. A pro- State at this difficult time. two weeks before the new term tocol is being finalised to allow for “As demonstrated across the CONSTRAINED started. bone fide members of the press to globe, the COVID-19 crisis And, for the first time ever, remotely link into such hearings is changing day-to-day life in BY THE COURTS certain courts in Ireland sat on 20 as observers – acting as the eyes unprecedented ways,” he added. SERVICE’S April, with all parties being pres- and ears of the public. “It is important to note that the ent via remote video technology. The in-court hardware is the courts continue to sit in-person for INFRASTRUCTURE The Supreme Court was the first same as that usually used for urgent business. I know this is an gazette.ie Law Society Gazette May 2020 News in depth ANALYSIS 51 PIC: SHUTTERSTOCK

anxious time for all concerned for Courts Service’s infrastructure. with remotely. Jury trials have and from case to case.” many reasons, and I welcome the For that reason, the president of been suspended since 23 March. They state that the first and best special arrangements and social each court will issue guidance or The Lord Chief Justice has said option is for the judge to work distancing measures introduced practice directions regarding how that the default position now in in one of the courts that remain by the Courts Service in response remote hearings will operate in all jurisdictions must be that hear- open or staffed, and to conduct to the COVID-19 pandemic.” their court. Parties, practitioners ings should be conducted with a hearing with some or all of the Law Society President Michele and interested members of the one or all participants attending participants attending by phone, O’Boyle has pointed out that the public should follow those details remotely. “All other hearings in video or an internet platform. Courts Service is developing and for greater information about the Crown Court that can law- Dealing with anything not providing this new facility without how cases in which they have an fully take place remotely should intrinsically simple by phone is the luxury of detailed engagement interest will progress. do so,” he said. less satisfactory than by video. and testing, and the service is ask- In a letter to the legal profes- And there may be real difficulties ing practitioners who take part to British position sion on 9 April, the Lord Chief in taking hotly contested evidence appreciate these constraints and Across all England and Wales Justice, the Master of the Roll, by telephone or laptop, the lead- provide feedback to ensure that it jurisdictions, around 40% of and the president of the Family ing judges have said. can provide a viable virtual court hearings have continued, either Division said: “National guidance Judges are not expected to experience. in traditional fashion or remotely. is a blunt instrument and cannot hear the same volume of cases Remote hearings, however, will These cases have largely been take any account of the strengths remotely as they would in person. not be suitable for all cases, and the shorter hearings, without difficult or weaknesses of local resources The overarching criterion is that capacity to deal with large num- evidence or high emotion, and the (judicial, staff and technologi- whatever mechanism is used to bers of remote hearings simulta- judges have said they recognise cal) and other important factors conduct a hearing must be in the neously will be constrained by the that not every matter can be dealt which vary from court to court interests of justice. 52 ANALYSIS News in depth May 2020 Law Society Gazette gazette.ie

PANDEMIC SUPPORTS STILL EVOLVING Limited State support is in place for self-employed people during the COVID-19 pandemic, but a range of initiatives to support businesses and employers have been established. Justin Purcell takes a look

JUSTIN PURCELL IS SMALL PRACTICE BUSINESS EXECUTIVE WITH THE LAW SOCIETY

he rules on State supports several criteria, which include support – and do not delay in for those who find them- two stipulations that may cause doing this. If Intreo (the public selves in financial difficul- difficulty for many self-employed employment service and single Tties as a result of the COVID-19 solicitors: point of contact for all employ- pandemic are still evolving. The • You must have stopped trading ment and income supports) con- best advice is to never presume as self-employed due to the siders some other initiative more that you will not qualify for a pandemic. This requirement appropriate for you, let it make support. If you need financial seems to rule out solicitors that call. What you should focus support, identify the initia- who have closed (or effectively on is making a credible applica- tive that seems most relevant to closed) their offices, but who tion before the financial chal- your circumstances and make an are still doing occasional work lenges spiral out of control. application. Rules may not be so to keep matters progressing THE BEST ADVICE strictly applied when individual and to care for clients. Jobseeker’s Benefit applications are considered. • There is also a rule that you Jobseeker’s Benefit (Self- PIC: SHUTTERSTOCK IS TO NEVER Please also seek assistance cannot claim the COVID-19 Employed) is a weekly pay- PRESUME THAT from the Law Society. The Crisis Pandemic Unemployment ment from the Department of Practice Support initiative was Payment if you are continuing Employment Affairs and Social YOU WILL NOT recently set up to provide sole to receive income from your Protection to people who lose practitioners and other small employment. their self-employment. If you QUALIFY FOR A practice proprietors with per- don’t qualify for Jobseeker’s Ben- SUPPORT. IF YOU sonalised supports, information, There is a lot of uncertainty efit (Self-Employed), you may and guidance on COVID-19 about how the rules will be qualify for Jobseeker’s Allow- NEED FINANCIAL challenges. Support is available applied to self-employed people. ance. However, Jobseeker’s via the Law Society website (see For instance, the Department of Allowance is means tested. SUPPORT, below). Employment Affairs and Social To qualify for Jobseeker’s IDENTIFY THE Protection provides quite a Benefit, you need to have paid COVID-19 payments contrasting perspective on their the required number of Class S INITIATIVE THAT Self-employed people who are website when they advise that PRSI contributions. For both in financial difficulty are encour- “you may, if your trading income supports, you need to be not cur- SEEMS MOST aged to apply for financial sup- has collapsed to the extent that rently engaged in self-employ- RELEVANT port from the Exchequer, pri- you are available to take up ment. Both supports are not marily through the COVID-19 other full-time employment if normally paid in a temporary TO YOUR Pandemic Unemployment Pay- it was offered to you, receive a shutdown situation, but this rule ment. This support involves a payment of €350 per week for so seems not to apply in the current CIRCUMSTANCES new social-welfare payment of long as you are available to take COVID-19 crisis. AND MAKE AN €350 per week – to be paid for up up other work”. Self-employed people who to 12 weeks. The best advice is to submit an have a dependent spouse and/or APPLICATION To qualify, a person must meet application if you need financial children may be able to access gazette.ie Law Society Gazette May 2020 News in depth ANALYSIS 53 PIC: SHUTTERSTOCK PIC: SHUTTERSTOCK

more money on Jobseeker’s working just one day a week. If may be in. This initiative just Benefit than on the Pandemic judged eligible, they will qualify supports employers to keep WHAT YOU Unemployment Payment. for a payment equal to 80% on staff – it does not assist the of their Jobseeker’s Benefit or employer. SHOULD FOCUS Short Time Work Support Allowance. The scheme pays employ- ON IS MAKING Self-employed solicitors can ers 70% of the gross money qualify for Short Time Work Wage-subsidy scheme paid to staff, to a maximum of A CREDIBLE Support if they work three days or The Temporary COVID-19 €410 a week. Employees paid less a week. This is a form of Job- Wage Support Scheme provides over €38,000 a year by their APPLICATION seeker’s Benefit/Allowance and financial assistance for qualify- employer are subsidised on a BEFORE THE is subject to the same qualifying ing businesses that continue reducing rate. Someone paid rules as outlined above (Class S to employ staff. However, it is €76,000 and above is not subsi- FINANCIAL PRSI contributions for a benefit important to note that no sup- dised at all. payment, and a means test for the port is provided within this ini- Employers have to be experi- CHALLENGES allowance). tiative for the business owner(s) encing significant economic dis- SPIRAL OUT OF This scheme may work for themselves, regardless of how ruption due to COVID-19 and a solicitor who is, for instance, bad a financial position they need to be able to demonstrate CONTROL 54 ANALYSIS News in depth May 2020 Law Society Gazette gazette.ie

that their turnover, or orders Working capital supports €50,000 from MicroFinance coming in, have reduced by a The Credit Guarantee Scheme Ireland. The terms include a six minimum of 25%. There was a supports loans up to €1 million months’ interest-free and repay- requirement that the business for periods of up to seven years. ment-free moratorium, with the had to be unable to fully pay Applications can be made to AIB, loan then repaid over the remain- normal wages and normal outgo- BOI and Ulster Bank. Eligibility ing 30 months of the 36-month ings. However, this requirement criteria apply. loan period. Businesses can apply appears to have been abandoned. Micro-enterprises can access through their Local Enterprise COVID-19 loans of up to Office. Business support grants This initiative (Business Con- tinuity Voucher) is aimed at businesses that employ up to 50 FOCAL POINT people across all business sec- tors. The voucher is worth up LAW SOCIETY CRISIS SUPPORT to €2,500 and covers third-party We at the Law Society understand Practising/covid-19-support and SELF-EMPLOYED consultancy costs. These vouch- that this is a worrying and difficult • www.lawsociety.ie/Solicitors/ ers can be used by businesses to time for our members. Our Practising/covid-19-support/ SOLICITORS CAN develop short-term and long- Crisis Practice Support service queries-and-feedback. QUALIFY FOR term strategies to respond to the was recently set up to provide pandemic. sole practitioners and other We hope to be of assistance SHORT TIME WORK small practice proprietors with during this uncertain time to help Rates deferral personalised support, information, navigate the range of COVID-19 SUPPORT IF THEY The Government has agreed and guidance on COVID-19 supports that are available. Please WORK THREE DAYS support for businesses affected challenges. Support is available at: do not hesitate to contact us at the by COVID-19 through com- • www.lawsociety.ie/Solicitors/ above web address. OR LESS A WEEK mercial rates deferral.

Dublin Dispute Resolution Centre CONSULT A Ireland’s Premier Dispute Resolution Venue COLLEAGUE • Arbitrations • Mediations • Conciliations The Consult a Colleague helpline is • Consultations available to assist every member of the • Seminars profession with any problem, whether • Training personal or professional.

CALL THE HELPLINE 01 284 8484 Dublin Dispute WWW.CONSULTACOLLEAGUE.IE Resolution Centre CONTACT US This service is completely confidential and totally Distillery Building, 145-151 Church Street, Dublin 7, Ireland independent of the Law Society Tel: +353 (1) 817 5277 Email: [email protected] gazette.ie Law Society Gazette May 2020 Council report BRIEFING 55

REPORT OF LAW SOCIETY COUNCIL MEETING 6 MARCH 2020 Diversity and inclusion the Council adopted the report across Ireland at any time of the in the members’ area of the Law The chair of the Gender Equal- and recommendations of the day or night. Society’s website. ity, Diversity and Inclusion Task task force as Law Society policy. The support to the profes- Force, Michelle Ní Longáin, sion would be available in three LRC issues paper outlined the content of the task Awareness training strands: it would provide pre- The Council approved the out- force’s report to the Council, The Council committed to ventative supports to ensure line content of a submission to including recommendations engage in bespoke unconscious mental-health concerns did not the Law Reform Commission designed to encourage more bias and bullying/sexual harass- develop into serious mental- in relation to its issues paper on female solicitors and solici- ment awareness training, which health problems; it would pro- capping damages in personal tors from diverse backgrounds would also be provided to all vide an early intervention strat- injuries actions. to seek leadership roles in the Society committee members. egy for individuals with mental- Law Society’s Council and com- health problems; and it would PII renewal mittees, together with useful Mental-health support offer treatment and response The chair of the PII Committee, tools that solicitors could use Past-president Michael Quin- strategies to individuals in men- Barry MacCarthy, gave a detailed to help achieve gender equality, lan outlined a proposed 24/7 tal-health crisis. report on the state-of-play fol- diversity and inclusion (GEDI) ‘In the Moment’ psychological The Council unanimously ap- lowing the PII renewal period, within their own firms and support service for members, proved the proposal. including information in rela- organisations. with a referral stream for those tion to the Assigned Risks Pool, The report also contained a in extreme difficulty or crisis. Rules of procedure the Run-Off Fund, market share proposed GEDI policy for the Under the proposal, an The Council approved written by premium, average premium Law Society, an amended version external provider would deliver rules of procedure for the Soci- per firm, and average premium of the Council’s Code of Conduct an independent, low-cost ety’s Money-Laundering Re- for all insurers. He reported and a proposed GEDI charter mental-health support service porting Committee and the also on the CBL liquidation and that would be promulgated for for Law Society members and Regulation of Practice Commit- the Elite administration as they adoption by solicitors’ firms. their dependants. The service tee, and agreed that all rules of pertained to PII for solicitors’ Following a detailed discussion, would be accessible to members procedure should be published firms. LISTEN UP!

Tune in to Gazette audio articles at Gazette.ie 56 BRIEFING Practice/guidance notes May 2020 Law Society Gazette gazette.ie

PRACTICE NOTE – GUIDANCE AND ETHICS COMMITTEE MEDIATION ACT 2017: ENFORCEABILITY OF MEDIATED AGREEMENTS Practitioners will be aware that provides that the mediator shall tion is not legally binding until without legal advice, assistance or section 11(2) of the Mediation Act ensure that the parties are aware incorporated into a formal legal representation, are aware of these 2017 provides that a mediation of their rights to each obtain agreement, and that mediation provisions and best practice and settlement shall have effect as a independent advice (including settlements of separating couples of the risk of entering into a bind- contract between the parties to legal advice) prior to signing any disputes are never intended to be ing agreement in mediation of the settlement, except where it is mediation settlement. binding and are always expressed separating couples’ disputes. expressly stated to have no legal And practitioners will be aware to be non-binding. Practitioners will be aware that force until incorporated into a that best practice for qualified When advising clients about preparing any document relating formal legal agreement signed by mediators is that agreements to mediation, as required by the act, to real or personal estate or any the parties. mediate separating couples’ dis- practitioners should ensure that legal proceedings is restricted Practitioners will also be aware putes shall expressly provide that their clients who may choose to by section 58 of the Solicitors Act that section 8(2)(d) of the act any agreement reached at media- participate in a mediation process 1954, as amended.

GUIDANCE NOTE REGULATORY MATTERS AND THE COVID-19 CRISIS With movement restrictions in sufficient cleared funds available advance transfers from the client client’s (or any other party’s) bank- place and with limited access to regarding the client in respect of to office account on the under- account details are correct. One office premises, some solicitors whom the transaction is being standing that fees are due to be of the more secure methods of may have difficulty accessing carried out. Supporting docu- received to the practice. Neither sending or receiving bank details their books of account and other mentation should be obtained should solicitors make advance is through hard-copy post. It financial information. Solicitors to enable the transaction to transfers from the client to office may also be possible to exchange are encouraged, where possible, be recorded in the accounting account, including round sum bank-account details securely via to set up remote access to their records and to be appropriately transfers, on the premise that telephone. When communicat- books of account and have online vouched. such moneys will be allocated ing by phone, you should always banking access. All remote access as professional fees to one or be absolutely certain that you are should be set up in a safe and Professional fees more client ledger account(s) at speaking with the actual person secure manner. Solicitors should continue to a future date. with whom you wish to exchange transfer professional fees in strict bank details. If uncertain, you Accounting records accordance with the Solicitors Balancing statements may wish to consider a video call It is most important that solici- Accounts Regulations. It must be Solicitors should continue to with the client or other party. tors continue to keep their made clear to clients that mon- prepare balancing statements on Further, if exchanging details accounting records up to date, eys held by the solicitor are being a regular basis. The more fre- orally, you must take sufficient in accordance with the Solicitors applied in satisfaction of profes- quently balancing statements are steps to avoid error. The con- Accounts Regulations. If books of sional fees. Professional fees and prepared, the quicker errors in versation should end with both account are not kept up to date, outlay may be transferred to the client-account transactions can parties absolutely certain that overpayments to, or on behalf of, office account only after a bill of be discovered. the details have been exchanged clients may occur. costs is raised and furnished to correctly. Never act on account the client. As with client trans- Electronic transfers of funds details received by email without Client account transactions actions, the solicitor must have Over the last few weeks, there also verifying the account details Payments from client accounts, knowledge that there are cleared has been an increased use of by telephone. If forwarding including cheques and electronic funds available regarding the electronic transfers, particularly money to third parties, check and transfers, should only be carried specific client in respect of whom by solicitors who have not previ- double check that the details pro- out where the solicitor has access the bill has been raised. ously used electronic banking. vided are from a reliable source. to up-to-date accounting records Under no circumstances Bank-account details must always Be very suspicious of any unso- and, in particular, client ledger should the client account be used be exchanged in a safe and secure licited emails received containing accounts, and where the solici- as a source of temporary fund- manner. It is very important to bank details or seeking to change tor has knowledge that there are ing. Solicitors should not make check, and double check, that the bank details. gazette.ie Law Society Gazette May 2020 Practice/guidance notes BRIEFING 57

If it is your firm’s policy to should continue to carry out cli- Law Society inspections Practice regulation support never send bank account details ent due-diligence procedures As on-site inspections can- We continue to provide help by email, this should be con- to verify the identity of clients. not proceed in the current cir- and assistance through our email firmed to clients in writing. Client risk assessments should be cumstances, the Law Society is helplines regarding practising Otherwise, any email correspon- documented. seeking the cooperation of the certificates ([email protected]), dence with clients that contains solicitor to carry out an off-site professional indemnity insur- bank-account details should Accountants’ reports ‘desktop review’. In such a case, ance ([email protected]), be encrypted and attachments The Society is determined that the Law Society requires certain and firm commencement and should be pass-phrase protected. protection for client moneys information be sent directly to cessation matters (firms@law The pass-phrase should not be remain in place. We are continu- the authorised person, preferably society.ie). communicated by email. ing to diligently pursue report- in electronic format (password Certificates of good standing accountants’ reports; how- protected), for review. To date, ing are still being provided in Cybersecurity ever, allowances are being made. the profession has been receptive electronic format (pc@law Solicitors should ensure that Where solicitors are in genuine to this approach, and the reviews society.ie). Ordinarily, a fee of their anti-malware packages difficulty filing reports within have been taking place all over €100 applies to any certificate of and firewalls are on, and up to the required deadline, they are the country. good standing required within date, and they should continue asked to contact the Law Society Solicitors in receipt of corre- two weeks. This fee has been to periodically conduct scans with their proposals for the fil- spondence relating to ongoing waived for the remainder of for malware and have their sys- ing of the report. Each extension inspections or desktop reviews 2020. tem backed up. If solicitors are request will be looked at on a should continue to correspond Finally, there is normally a fee working remotely, they should case-by-case basis, with additional with the Society in relation to of €50 for a duplicate practis- not connect online via unsecured time afforded where appropriate. those matters by email (financial- ing certificate. This charge has free wi-fi, and all other staff The Law Society is also accepting [email protected]). also been waived, and duplicate should do the same. unsigned reports (financialregula- practising certificates are (at pres- [email protected]), provided they Regulation of practice ent) being issued in electronic Anti-money-laundering are accompanied by an undertak- The Law Society’s Regulation of form. Anti-money-laundering proce- ing from the reporting accountant Practice Committee is continu- dures should continue to be fol- that the signed report will be filed ing to meet using various tech- John Elliot, Registrar of Solicitors lowed. In particular, solicitors as soon as is practicable. nological solutions. and Director of Regulation

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Clients include: Law Society Gazette, Law Society of Ireland, Institution of Occupational Safety and Health, Dublin Solicitors Bar Association, Alltech Craft Brews and Food 58 BRIEFING SBA accounts May 2020 Law Society Gazette gazette.ie SOLICITORS’ BENEVOLENT ASSOCIATION 156TH REPORT, 1 DECEMBER 2018 TO 30 NOVEMBER 2019 This is the 156th report of the contributed to the association Solicitors’ Benevolent Asso- RECEIPTS AND PAYMENTS A/C FOR YEAR ENDED 30/11/2019 when applying for their practising ciation, which was established in 2019 2018 certificates, to those who made 1863. It is a voluntary charitable RECEIPTS € € individual contributions, and to body, consisting of all members of Subscriptions 856,035 448,721 the following: Law Society of Donations 133,422 the profession in Ireland. It assists 134,839 Ireland, Law Society of Northern Investment income 61,419 members or former members of 65,419 Ireland, Dublin Solicitors’ Bar Legacies 21,806 – the solicitors’ profession in Ire- Association, Courts Service, Fac- Bank interest 32 18 land and their wives, husbands, Currency gain 4,114 – ulty of Notaries Public in Ireland, widows, widowers, families and Repayment of grants 5,665 1,200 Limavady Solicitors’ Association, immediate dependants who are 1,087,910 644,780 Local Authority Solicitors’ Bar in need, and it is active in giving PAYMENTS Association, Mayo Solicitors’ Bar assistance on a confidential basis Grants 756,168 773,058 Association, Medico-Legal Soci- throughout the 32 counties. Administration expenses 51,787 55,447 ety of Ireland, Midland Solicitors’ The amount paid out during Bank interest and fees 1,379 1,288 Bar Association, Sheriffs’ Associa- the year in grants was €756,168, Currency loss – 463 tion, Southern Law Association, 830,256 which was collected from mem- 809,334 and West Cork Bar Association. bers’ subscriptions, donations, The demands on our associa- OPERATING SURPLUS/(DEFICIT) 278,576 (185,476) legacies and investment income. tion are rising due to the pres- Profit on disposal of investments 85,035 50,901 Currently, there are 83 beneficia- Provision for increase/(decrease) in the ent economic difficulties and, to ries in receipt of regular grants, value of quoted investments 15,473 (434) cover the greater demands on the and approximately half of these SURPLUS/(DEFICIT) FOR THE YEAR 379,084 (135,009) association, additional fundrais- are themselves supporting spouses ing events are necessary. Addi- and children. tional subscriptions are more There are 21 directors, three than welcome, as of course are of whom reside in Northern Ire- DIRECTORS AND OTHER INFORMATION legacies and the proceeds of any land, and they meet monthly in n Directors: Thomas A Menton (chair- n Secretary: Geraldine Pearse fundraising events. In certain the Law Society’s offices, Black- person), Felicity M Foley (deputy chair- n Auditors: Deloitte Ireland LLP, cases, the association can claim hall Place. They meet at the Law person), Caroline Boston (Belfast), Liam Chartered Accountants and Statutory tax relief for donations of €250 Society, Belfast, every other year. Coghlan (Killarney), Thomas W Enright Audit Firm, Deloitte & Touché House, or more. I would encourage bar The work of the directors, who (Birr), Ivan Feran (Drogheda), William B Earlsfort Terrace, Dublin 2 associations to run functions such provide their services entirely on Glynn (Galway), John Guerin (Belfast), n Financial consultants: Brewin Dol- as CPD courses to raise funds for a voluntary basis, consists in the Colin G Haddick (Newtownards), Siun phin, 3 Richview Office Park, Clon- the association. Subscriptions and main of reviewing applications for Hurley (Bantry), Niall Lavery (Dundalk), skeagh, Dublin 14 donations can be received by any grants and approving new appli- Seamus Mallon (Castleblayney), Paul n Bankers: Allied Irish Banks plc, 37 of the directors or by the secre- cations. The directors also make Malone (Borrisokane), Anne Murran (Wa- Upper O’Connell Street, Dublin 1; tary, from whom all informa- themselves available to those who terford), John M O’Connor (Dublin), John Allied Irish Banks plc, 92 Ann Street, tion may be obtained at 73 Park may need personal or professional TD O’Dwyer (Ballyhaunis), Mark Quinn Belfast BT1 3HH Avenue, Dublin 4. Information advice. (Gorey), James I Sexton (Limerick), Sean n Offices of the association: Law can also be obtained from the The directors are grateful to Sexton (Dublin), Andrew F Smyth (Dub- Society of Ireland, Blackhall Place, association’s website (www.solici- both law societies for their sup- lin), Brendan J Twomey (Donegal) Dublin 7; Law Society of Northern torsbenevolentassociation.com). port and, in particular, wish to n Trustees (ex officio directors): Felic- Ireland, Law Society House, 96 Victo- I would urge all members of the express thanks to Patrick Dor- ity M Foley, Thomas A Menton, John M ria Street, Belfast BT1 3GN association, when making their gan (past-president of the Law O’Connor, Sean Sexton n Charity number: CHY892 own wills, to leave a legacy to Society of Ireland), Suzanne Rice the association. You will find the (past-president of the Law Society appropriate wording of a bequest of Northern Ireland), Ken Mur- members of the Council, and to thon, and to his colleagues from at p34 of the Law Directory 2019. phy (director general), David A the organisers of the gala. the North, Adam Wood, Darren I would like to thank all the Lavery (chief executive), and the The directors and the ben- Toombs, Peter Jack; and from directors and the association’s personnel of both societies. The eficiaries of the association send the South, Ivan Feran and Stuart secretary, Geraldine Pearse, for Law Society again organised the a very sincere thanks to Brian Gilhooly, who took part in the their valued hard work, dedica- annual gala, which was held in McMullin for organising the event. They succeeded in raising tion, and assistance during the October, for the benefit of our North/South IronLaw Chal- €31,226 for the association. year. association, and a very sincere lenge, which consisted of a 3.8k I wish to express particular thanks to Patrick Dorgan, the swim, 180k cycle, and a mara- appreciation to all those who Thomas A Menton, chairman gazette.ie Law Society Gazette May 2020 Regulation BRIEFING 59

SOLICITORS DISCIPLINARY TRIBUNAL

REPORTS OF THE OUTCOMES OF SOLICITORS DISCIPLINARY TRIBUNAL INQUIRIES ARE PUBLISHED BY THE LAW SOCIETY OF IRELAND AS PROVIDED FOR IN SECTION 23 (AS AMENDED BY SECTION 17 OF THE SOLICITORS (AMENDMENT) ACT 2002) OF THE SOLICITORS (AMENDMENT) ACT 1994

In the matter of Ian McSwee- provided, or at all, compensation fund, and any requirement to attend ney, a solicitor practising 2) Failed to attend meetings of 3) Pay the sum of €1,812 as a con- meetings of either body, as McSweeney Solicitors, 2 the Complaints and Client tribution towards the whole of 3) To attend a practice manage- Capel Street, Dublin 1, and in Relations Committee on 5 the costs of the applicant. ment course for a minimum the matter of the Solicitors Acts February 2019 and 14 March of five hours’ duration, within 1954-2015 [2019/DT47] 2019, despite being required And the tribunal required that six months of 5 March 2020, Law Society of Ireland to do so, the respondent solicitor provide and to provide details of the (applicant) 3) Failed to comply with the the following undertaking to the said course to the applicant Ian McSweeney (respondent High Court order dated 8 applicant Law Society and the in advance of same, and evi- solicitor) April 2019 to reply to the Solicitors Disciplinary Tribunal dence of attendance to the On 5 March 2020, the Solici- complaint of his named client in the following terms: applicant within 14 days of tors Disciplinary Tribunal found within seven days of that date, 1) To reply to any correspon- completion, the respondent solicitor guilty of 4) Failed to inform his client of a dence received from the appli- 4) The said course attendance professional misconduct in his hearing date, and no legal rep- cant and/or the Legal Services to be in addition to the res- practice as a solicitor in that he: resentation attended the hear- Regulatory Authority within pondent solicitor’s continu- 1) Failed to respond to letters ing, resulting in costs awarded 14 days of the date of the let- ing professional development from the Society – dated 17 against his client. ter, requirements for 2020. October 2018, 20 November 2) To engage in a meaningful 2018, 12 December 2018, 10 The tribunal ordered that the and constructive way with the The tribunal directed that the January 2019, 17 January 2019 respondent solicitor: applicant and/or the Legal duration of undertakings (1) and and 7 February 2019 – in a 1) Be censured, Services Regulatory Authority (2) continue for three years from timely manner, within the time 2) Pay the sum of €3,200 to the with regard to correspondence 5 March 2020

LAW SOCIETY LIBRARY AND INFORMATION LAW SOCIETY LIBRARY AND INFORMATION LAWSERVICES SOCIETY – WE LIBRARY DELIVER! AND INFORMATION LAWSERVICES SOCIETY – WE LIBRARY DELIVER! AND INFORMATION LAWSERVICESDuring the SOCIETY current public – healthWE LIBRARY crisis, DELIVER! the library ANDis closed toINFORMATION visitors. The library team is working from home. LAWSERVICESDuringWe continue the SOCIETY current to respond public – to health WEyour LIBRARY legal crisis, DELIVER! research the library enquiries ANDis closed and to INFORMATIONdocument-delivery visitors. The library requests. team is working from home. SERVICESDuringWe continue the current to respond public – to health WEyour legal crisis, DELIVER! research the library enquiries is closed and to document-delivery visitors. The library requests. team is working from home. Unfortunately, it is not possible to lend books during this period. We have access to a large range of SERVICESDuringWe continue the current to respond public – to health WEyour legal crisis, DELIVER! research the library enquiries is closed and to document-delivery visitors. The library requests. team is working from home. Unfortunately,databases to answer it is not your possible enquiries. to lend Self-service books during access this to period. the entire We have Irish access judgments’ to a large collection range isof available viaDuringWe thecontinue onlinethe current to catalogue. respond public to LawWatch health your legal crisis, will research thebe published library enquiries is closed weekly and to document-deliveryas visitors. usual. The library requests. team is working from home. 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INFORMATIONdocument-delivery We have access requests. to a large range of Unfortunately,databasesvia the online to answer catalogue. it is not your possible LawWatch enquiries. to lend will Self-service booksbe published during access thisweekly to period. the as entireusual. We have Irish access judgments’ to a large collection range isof available LawWatch SERVICESUnfortunately,LAWdatabasesvia the online SOCIETY to answer catalogue. it is not your –possible enquiries.WE LIBRARY to DELIVER! lendwill Self-service booksbe published during accessAND thisweekly to period. the INFORMATIONas entireusual. We have Irish access judgments’ to a large collection range isof available databasesviaLAW the online SOCIETY to answer catalogue. your LawWatch enquiries. LIBRARY will Self-service be published accessAND weekly to the INFORMATIONas entireusual. Irish judgments’ collection is available viaLAWSERVICES the online SOCIETY catalogue. – LawWatch WE LIBRARY DELIVER! will be published AND weekly INFORMATIONas usual. SERVICESDuringLAWvia the onlinethe SOCIETY current catalogue. public – LawWatch healthWE LIBRARY crisis, DELIVER! will thebe published library ANDis closed weekly to INFORMATIONas visitors. usual. The library team is working from home. We continue to respond to your legal research enquiries and document-delivery requests. SERVICESDuring the current public – healthWE crisis, DELIVER! the library is closed to visitors. The library team is working from home. During the current public health crisis, the library is closed to visitors. The library team is working from home. Unfortunately,We continue to it respond is not possible to your legalto lend research books duringenquiries this and period. document-delivery We have access requests. to a large range of We continue to respond to your legal research enquiries and document-delivery requests. Duringdatabases the tocurrent answer public your enquiries.health crisis, Self-service the library access is closed to theto visitors. entire Irish The judgments’library team collection is working is from available home. Unfortunately, it is not possible to lend books during this period. We have access to a large range of Wevia thecontinue online to catalogue. respond to LawWatch your legal will research be published enquiries weekly and document-deliveryas usual. requests. databasesUnfortunately, to answer it is not your possible enquiries. to lend Self-service books during access this to period. the entire We have Irish access judgments’ to a large collection range isof available Unfortunately,viadatabases the online to answer catalogue. it is not your possible LawWatch enquiries. to lend will Self-service booksbe published during access thisweekly to period. the as entireusual. We have Irish access judgments’ to a large collection range isof available viaUnfortunately, the online catalogue. it is not possible LawWatch to lend will booksbe published during thisweekly period. as usual. We have access to a large range of databases to answer your enquiries. Self-service access to the entire Irish judgments’ collection is available via the online catalogue. LawWatch will be published weekly as usual. 60 PROFESSIONAL NOTICES May 2020 Law Society Gazette gazette.ie

WILLS Atkinson, Thomas (Tom) (de- RATES ceased), late of 4 Joyce House West, Viking Harbour, Usher’s Island, Dublin 8, and formerly PROFESSIONAL NOTICE RATES of Ballyfore, Co Offaly, who died RATES IN THE PROFESSIONAL NOTICES SECTION ARE AS FOLLOWS: on 24 January 2012. Would any person having knowledge of a • Wills – €155 (incl VAT at 23%) will made by the above-named • Title deeds – €310 per deed (incl VAT at 23%) deceased please contact Ferrys • Employment/miscellaneous – €155 (incl VAT at 23%) LLP Solicitors, Inn Chambers, 15 Upper Ormond Quay, Dublin 7; HIGHLIGHT YOUR NOTICE BY PUTTING A BOX AROUND IT – €30 EXTRA tel: 01 677 9408; fax: 01 873 2976, email: [email protected] ALL NOTICES MUST BE PAID FOR PRIOR TO PUBLICATION. ALL NOTICES MUST BE EMAILED TO [email protected] and PAYMENT MADE BY ELECTRONIC FUNDS Bolger, Patricia (deceased), late TRANSFER (EFT). The Law Society’s EFT details will be supplied following receipt of your of Ferlane Cottage, Mitchelstown, email. Deadline for June 2020 Gazette: 20 May 2020. Athboy, Co Meath; and for- No recruitment advertisements will be published that include references to ranges of post-qualification merly of 19 Knocklyon Court, experience (PQE). The Gazette Editorial Board has taken this decision based on legal advice that indicates Knocklyon Woods, Dublin that such references may be in breach of the Employment Equality Acts 1998 and 2004. 16; and 19 Firhouse Grove, Templeogue, Dublin. Would any person having knowledge of the whereabouts of a will made by will executed by the above-named the whereabouts of any will made Ryan, Michael (deceased), late the above-named deceased, who deceased, who died on 8 January by the above-named deceased, or of Ardragoole, Castlerea, Co died on 10 May 2019, please con- 2020, please contact Rachel Hill, if any firm is holding same, please Roscommon, and Fearna Nursing tact Barry Lysaght, Malone and Maurice Leahy Wade, Solici- contact Coghlan Kelly Solicitors, Home, Castlerea, Co Roscom- Martin, Solicitors, Market Street, tors, Archway House, Swords, Co Trinity Chambers, South Street, mon, who died on 25 February Trim, Co Meath; DX 92001 Trim; Dublin; DX 91013 Swords; tel: 01 New Ross, Co Wexford, Y34 2016. Would any person having tel: 046 943 1256 or email: info@ 840 6505, fax: 01 840 1156, email: VP89; DX 37004 Co Wexford; knowledge of any will made by maloneandmartin.com [email protected] tel: 051 429 100, email: the above-named deceased please [email protected] contact Padraig Kelly, Solicitors, Corroon, Bernard (deceased), Hevey, June (otherwise June Strokestown, Co Roscommon, late of 19 Kilcarn Court, Navan, Angeline) (deceased), late of O’Keeffe, Teresa (deceased), quoting ref: R/3/16; tel: 071 963 Co Meath, who died on 28 Octo- Myra View, 9 Upper Cliff Road, late of 65 Roseville, Naas, Co 3666, email: [email protected] ber 2019. Would any person hav- East Mountain, Howth, Co Kildare, and formerly of Seven ing knowledge of the whereabouts Dublin. Would any person hav- Springs, Fishery Lane, Naas, Co Smith (Smyth), Desmond o/w of any will made by the above- ing knowledge of a will made Kildare, who died on 27 October Bernard (deceased), late of Mill named deceased please contact by the above-named deceased, 2019. Would any person having House, Bunclody, Enniscorthy, Elaine Byrne, Regan McEntee & who died on 30 January 2020, knowledge of a will made by the Co Wexford, formerly of 56 Partners, Solicitors, High Street, please contact Messrs Maurice above-named deceased please Morehampton Road, Donny- Trim, Co Meath; DX 92002 Trim; E Veale & Co, Solicitors, 6 contact Reidy Associates Solici- brook, Dublin 4, and formerly of tel: 046 943 1202, email: ebyrne@ Lower Baggot Street, Dublin 2; tors, 13 Warrington Place, Dub- Carrickmacross, Co Monaghan. reganmcentee.ie tel: 01 676 4067, email: socon@ lin 2; tel 01 661 8286; DX 109023 Would any person having knowl- vealesolicitors.com Fitzwilliam; email: mhogan@ edge of a will executed by the Doyle, Colette (otherwise Bríd reidyassociates.ie above-named deceased, who died C Doyle, otherwise Bríd Ní Hurley, Kathleen (deceased), Dhubhghaill) (deceased), late late of 26 Melvin Road, Terenure, of Colman Doyle Shops, South Dublin 6W who died on 17 June Main Street, Wexford. Would 2019. Would any person having any person having knowledge of knowledge of the whereabouts of a will made by the above-named a will made by the above-named deceased, who died on 27 January deceased please contact Butler 2020, please contact Ensor Monk Solicitors, 12 Camden Row, O’Connor, Solicitors, 4 Court Dublin 8; tel: 01 479 3299, email: Street, Enniscorthy, in the county [email protected] of Wexford; tel: 053 923 5611, email: [email protected] McKenna, Madeline (otherwise Madeline Angela) (deceased), Fowler, John Fowler (de- late of 48 Dartmouth Square East, ceased), late of 312 Swords Leeson Park, Ranelagh, Dublin 6, Road, Santry, Dublin 9. Would who died on 30 May 2019. Would any person having knowledge of a any person having knowledge of gazette.ie Law Society Gazette May 2020 61 PROFESSIONAL NOTICESNOTICES on 21 February 2020, please contact Maeve application before the county registrar at the Breen, Solicitor, MT O’Donoghue & Co, 11 end of 21 days from the date of this notice COMING SOON Main Street, Gorey, Co Wexford; DX 48 003 and will apply to the county registrar for COMING SOON Gorey; tel: 053 942 1137, fax: 053 942 1725, the county of Dublin for directions as may The Law of email: [email protected] be appropriate on the basis that the persons The Law of beneficially entitled to the superior interests TheEvidence Law of in Tierney, John (deceased), late of Callanagh, including the freehold reversion in the prop- Evidence in Kilcogy, Co Cavan, who died on 23 June 2019. erty are unknown or unascertained. Ireland Would any person having knowledge of the Date: 8 May 2020 IrelandBy Caroline Fennell whereabouts of any will made by the above- Signed: Spelman Callaghan (solicitors for the By Caroline Fennell By Caroline Fennell named deceased please contract Cliadhna M applicant), Corner House, Main Street, Clon- This new edition of The Law of Sheridan, solicitor, Main Street, Granard, Co dalkin, Dublin 22 This new edition of The Law of ThisEvidence new editionin Ireland of Thecovers Law key of Longford, tel: 043 668 7778, email: cliadhna@ topicsEvidence including: in Ireland covers key Evidencetopics including: in Ireland covers key cmssolicitors.ie In the matter of the Landlord and Ten- topics• Judicial including: consideration of fairness ant Acts 1967 – 2005 and in the mat- • inJudicial the pre-trial consideration process of in fairness light of a • Judicialin the pre-trial consideration process of in fairness light of a Treacy, Thomas (deceased), late of 11 ter of the Landlord and Tenant (Ground inchanging the pre-trial societal process context in lightand deliveryof a Aughrim Court, Aughrim Street, Dublin 7, Rents) (No 2) Act 1978 and in the matter onchanging the accused’s societal rightcontext to fair and trial delivery changingon the accused’s societal rightcontext to fair and trial delivery who died on 2 March 2020. Would any per- of an application by Steel Fixing Ser- • onThe the developing accused’s concept right to of fair trial son having knowledge of the whereabouts vices Limited and in the matter of the • transnationalThe developing fairness concept in facingof • Thetransnational developing fairness concept in facingof of any will made or purported to have been rear of no 30 and/or 31 James’s Street, transnationalthe challenge fairnessof co-operation in facing in made by the above-named deceased, or if any Dublin 8 combatingthe challenge crime of co-operationand instruments in thecombating challenge crime of co-operationand instruments in firm is holding same, please contact Jonathan Take notice that any person having an inter- such as the European Arrest Warrant combatingsuch as the crime European and instruments Arrest Warrant Cosgrove, Aidan T Stapleton & Co Solicitors, est in the freehold estate or any lesser or • suchChanging as the approaches European Arrestof Irish Warrant • Changing approaches of Irish Suites 130-132 The Capel Building, Mary’s intermediate interest in the lands and prem- • Changingcourts to approachestraditional rules of Irish including Abbey, Dublin 7; tel: 01 679 7939, email: ises being now a warehouse or workshop thosecourts relating to traditional to expert rules witness including courtsthose relating to traditional to expert rules witness including [email protected] building known as and situate at the rear thosetestimony, relating evidence to expert of bad witness character andtestimony, prior misconduct. evidence of bad character of 30 and/or 31 James’s Street, in the city testimony,and prior misconduct. evidence of bad character TITLE DEEDS of Dublin, as demised by an indenture of and prior misconduct. In the matter of the Landlord and Tenant lease made on 24 June 1858 between Math- Price: €185 ISBNPrice:: 9781526504890 €185 (Ground Rents) Acts 1967-2005 and in the ias Joseph O’Kelly and Margaret O’Kelly ISBNPrice:: 9781526504890 €185 matter of the Landlord and Tenant (Ground (otherwise Shannon) of the one part and ISBN: 9781526504890 Rents) (No 2) Act 1978 (as amended) and in Benjamin Glorney of the other part for the the matter of an application by Valleycrest term of 868 years, commencing 4 January Holdings Limited in respect of the prem- 1858, subject to the yearly rent of £60.1s OUR PODCAST ises known as 33 Ashtown Grove, Navan (subsequently reduced to £55.7s.9d) and the OUR PODCAST Road, Dublin 7 conditions and covenants therein contained, OUR PODCAST Take notice that any person having a freehold should give notice of their intentions to the interest or any intermediate interest in all that undersigned solicitors. and those the property known as 33 Ashtown Further take notice that Steel Fixing Ser- Grove, Navan Road, Dublin 7 (hereinafter vices Limited, being the person entitled to called ‘the property’), being the land demised the lessee’s interest under the said lease, held by a lease dated 23 March 1962 made intends to submit an application to the between Clare Dunn, Judith Darling, Jessie county registrar for the county of Dublin at Mary Doyle, Edward J Doyle, Charles Hart, Aras Uí Dhálaigh, Inns Quay, in the city of and Eileen Gray of the one part, and James Dublin, for the acquisition of the fee simple Quinn of the other part for the term of 123 interest in the said property and all interme- years from 25 March 1955 at a rent of £30 per diate interests in same, and any party assert- Listen to Bloomsbury Professional annum, should give notice of their interest to ing that they hold any interest in the said Listen to Bloomsbury Professional Ireland’sListen to Podcast Bloomsbury for interviews Professional with the undersigned solicitors. property superior to that of the said appli- leadingIreland’s legal Podcast professionals for interviews in Ireland. with Take notice that Valleycrest Holdings Lim- cant are called upon to furnish evidence of leadingIreland’s legal Podcast professionals for interviews in Ireland. with leadingOur current legal professionals episodes explore in Ireland. the ited, of 33 Ashtown Grove, Navan Road, title to the said property to the undersigned Our current episodes explore the Ourlegal current developments episodes around explore the the Dublin 7, being the party now entitled to the solicitors within 21 days of the date of this legal COVID-19developments pandemic. around the lessee’s interest in the property, intends to notice. legal COVID-19developments pandemic. around the Find us COVID-19on Apple Podcasts,pandemic. Spotify, submit an application to the county registrar In default of any such notice being Find us on Apple Podcasts, Spotify, FindStitcher, us on and Apple many Podcasts, other podcast Spotify, for the county of Dublin for acquisition of received, the said applicant intends to pro- apps,Stitcher, or at and obiterdicta.podbean.com many other podcast the freehold interest in the property, and any ceed with the application before the Dublin apps,Stitcher, or at and obiterdicta.podbean.com many other podcast party asserting that they hold a superior inter- county registrar at the end of 21 days from apps, or at obiterdicta.podbean.com est in the property are called upon to furnish the date of this notice and will apply to the bloomsburyprofessional.com/ie evidence of their title to the property to the Dublin county registrar for such directions bloomsburyprofessional.com/ie undersigned solicitors within 21 days from as may be deemed meet on the grounds bloomsburyprofessional.com/ie the date of this notice. that the person or persons beneficially enti- In default of any such notice being received, tled to all and any superior interests in the the applicant intends to proceed with the said property, up to and including the fee 62 PROFESSIONAL NOTICES May 2020 Law Society Gazette gazette.ie

simple estate if appropriate, are county registrar for such direc- being received, the said appli- unknown or unascertained. tions as may be deemed meet on cant intends to proceed with the Require assistance Date: 8 May 2020 the grounds that the person or application before the Dublin in Northern Ireland Signed: OBH Partners (solicitors persons beneficially entitled to all county registrar at the end of 21 for the purpose for the said applicant), 17 Pembroke and any superior interests in the days from the date of this notice of litigation? Street Upper, Dublin 2 said property, up to and including and will apply to the Dublin the fee simple estate if appropri- county registrar for such direc- In the matter of the Landlord ate, are unknown or unascer- tions as may be deemed meet on Northern Ireland lawyers, and Tenant Acts 1967-2005 and tained. the grounds that the person or Kearney Law Group, in the matter of the Landlord Date: 8 May 2020 persons beneficially entitled to all are interested in dealing and Tenant (Ground Rents) (No Signed: OBH Partners (solicitors and any superior interests in the with all civil litigation 2) Act 1978 and in the matter of for the said applicant), 17 Pembroke said property, up to and including claims for those who have suffered injury in an application by James’ Street Street Upper, Dublin 2 the fee simple estate if appropri- Northern Ireland. Steel Manufacturing Limited ate, are unknown or unascer- and in the matter of no 33 and In the matter of the Landlord tained. An arrangement of 34 James’s Street, Dublin 8 and Tenant Acts 1967-2005 and Date: 8 May 2020 50/50 is suggested. Take notice that any person hav- in the matter of the Landlord Signed: OBH Partners (solicitors Please contact us today to discuss further. ing an interest in the freehold and Tenant (Ground Rents) (No for the said applicant), 17 Pembroke 028 7136 2299 | 028 9091 2938 estate or any lesser or interme- 2) Act 1978 and in the matter of Street Upper, Dublin 2 [email protected] diate interest in the lands and an application by James’ Street kearneylawgroup.com premises situate at and formerly Steel Manufacturing Limited In the matter of the Landlord Belfast | Derry | Dublin | London known as part of no 33 James’s and in the matter of no 34 and Tenant Acts 1967-2005 and Street, and now known as part and the rear of no 33 James’s in the matter of the Landlord of no 34 James’s Street, in the Street, Dublin 8 and Tenant (Ground Rents) (No city of Dublin, as demised by an Take notice that any person hav- 2) Act 1978 and in the matter of indenture of lease dated 11 Feb- ing an interest in the freehold an application by James’ Street ruary 1897 and made between estate or any lesser or intermedi- Steel Manufacturing Limited James H Kenny of the one part ate interest in the lands and prem- and in the matter of no 35 and William Dunne of the other ises situate at and known as no James’s Street, Dublin 8 part for a term of 200 years com- 34 and the rear of no 33 James’s Take notice that any person hav- mencing from 1 January 1897, Street, as demised by an inden- ing an interest in the freehold subject to an annual rent of £30 ture of lease dated 30 December estate or any lesser or intermedi- and the conditions and covenants 1961 and made between Rose ate interest in the lands and prem- therein contained, should give Kenny of the first part, Rose ises situate at and known as no 35 01 493 6948 notice of their intentions to the Kenny and James Sheil of the sec- James’s Street, as demised by an REMOTE CONSULTATIONS undersigned solicitors. ond part, and Patrick Rafter of the indenture of lease dated 30 April & ASSESSMENTS EXPERT REPORTS DURING COVID-19 Further take notice that James’ third part for a term of 150 years 1919 and made between Kate REMOTE IT SUPPORT AVAILABLE Street Steel Manufacturing Lim- commencing 1 May 1961, subject Byrne and Mary Byrne of the one FOR CLIENTS ited, being the person entitled to the yearly rent of £46 and the part and the Irish Agricultural to the lessee’s interest under the conditions and covenants therein Wholesale Society Limited of the Supporting families with: said lease, intends to submit an contained, should give notice other part for a term of 150 years l Cerebral palsy l Acquired brain injury application to the county regis- of their intentions to the under- commencing from 24 June 1923, l Spinal injuries trar for the county of Dublin at signed solicitors. subject to the yearly rent of £52.6s l Complex medical needs Aras Uí Dhálaigh, Inns Quay, in Further take notice that James’ and the conditions and covenants in conjunction with solicitors and the city of Dublin, for the acqui- Street Steel Manufacturing Lim- therein contained, should give the Office of Wards of Court. sition of the fee simple interest ited, being the person entitled to notice of their intentions to the in the said property and all inter- the lessee’s interest under the said undersigned solicitors. Siobhan McSweeney mediate interests in same, and lease, intends to submit an appli- Further take notice that James’ l NURSING CONSULTANT l l EXPERT WITNESS l any party asserting that they hold cation to the county registrar for Street Steel Manufacturing Lim- l CASE MANAGER l any interest in the said property the county of Dublin at Aras Uí ited, being the person entitled to superior to that of the said appli- Dhálaigh, Inns Quay, in the city the lessee’s interest under the said www.mcscasemanagement.ie cant are called upon to furnish of Dublin, for the acquisition of lease, intends to submit an appli- [email protected] evidence of title to the said prop- the fee simple interest in the said cation to the county registrar for erty to the undersigned solicitors property and all intermediate the county of Dublin at Aras Uí within 21 days of the date of this interests in same, and any party Dhálaigh, Inns Quay, in the city of title to the said property to the notice. asserting that they hold any inter- of Dublin, for the acquisition of undersigned solicitors within 21 In default of any such notice est in the said property superior the fee simple interest in the said days of the date of this notice. being received, the said appli- to that of the said applicant are property and all intermediate In default of any such notice cant intends to proceed with the called upon to furnish evidence interests in same, and any party being received, the said applicant application before the Dublin of title to the said property to the asserting that they hold any inter- intends to proceed with the appli- county registrar at the end of 21 undersigned solicitors within 21 est in the said property superior cation before the Dublin county days from the date of this notice days of the date of this notice. to that of the said applicant are registrar at the end of 21 days and will apply to the Dublin In default of any such notice called upon to furnish evidence from the date of this notice and gazette.ie Law Society Gazette May 2020 63 PROFESSIONAL NOTICESNOTICES

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will apply to the Dublin county registrar for such directions as IS YOUR CLIENT INTERESTED may be deemed meet on the IN SELLING OR BUYING DO YOU WANT grounds that the person or persons beneficially entitled to all and A 7-DAY LIQUOR LICENCE? TO SELL YOUR any superior interests in the said PRACTICE? property, up to and including the email: [email protected] fee simple estate if appropriate, web: www.liquorlicencetransfers.ie LOOKING TO RETIRE? BOW OUT GRACEFULLY? are unknown or unascertained. Date: 8 May 2020 Call: 01 2091935 WE CAN HELP Signed: OBH Partners (solicitors for the said applicant), 17 Pembroke WITH SUCCESSION Street Upper, Dublin 2 the below named within 21 days chart thereof in the margin of the PLANNING of the date of this notice. lease dated 26 July 1864 between REPLIES TO In the matter of the Landlord In default of any such notice Thomas Crosthwait of the one and Tenant Acts 1967-2005 and being received, the said Linda part and Thomas Walpole, PO BOX 01/04/20 in the matter of Landlord and Gilmartin and Laura Gillmartin William Henry Webb and John Tenant (Ground Rents) (No 2) intend to proceed with an appli- Fredrick Bewley of the other Act 1978 and in the matter of an cation through the county regis- part, and coloured green thereon, application by Laura Gilmartin trar for the county of Sligo at the and is situate, lying, and being in WINE VALUATIONS and Linda Gilmartin end of the 21 days from the date the parish of Saint Thomas and Take notice that any person hav- of this notice and apply for such county of the city of Dublin, held Pembroke wines offer a ing an interest in the freehold direction as may be appropriate under a lease dated 26 July 1864 complementary bespoke wine estate of the following property, on the basis that the persons ben- between Thomas Crosthwait valuation service where wine known as no 25 Wolfe Tone eficially entitled to the superior of the one part and Thomas parcels have been left as Street, Sligo, formerly known interest including the freehold Walpole, William Henry Webb part of a deceased’s estate. as 25 William Street, Sligo, held reversion in the aforesaid prem- and John Fredrick Bewley of the Professional service and under an indenture of lease dated ises unknown and unascertained. other part from 1 May 1864 for confidentiality agreed. 27 March 1895 between Iza Anna Date: 8 May 2020 the term of 400 years, subject to Austin of the one part and George Signed: Dermot G McDermott the yearly rent of £40. For any enquires please see Carr of the other part for a term (solicitors for the applicant), 1 Union Take notice that Henry A www.pembrokewines.ie of 132 years from 29 September Street, Sligo Crosbie, acting by his joint statu- 1894 and subject to a yearly rent tory receivers Stephen Tennant CONTACT of £2 thereby reserved and the In the matter of the Landlord and Paul McCann, being the per- Andrew Keaveney covenants and conditions on the and Tenant (Ground Rents) Acts son now holding the said prop- [email protected] part of the lessee therein con- 1967-2019 and in the mat- erty, intends to submit an applica- Tel. 0862942415 tained. ter of the Landlord and Tenant tion to the county registrar for the Take notice Linda Gilmartin (Ground Rents) (No 2) Act 1978 city of Dublin for the acquisition and Laura Gilmartin, being the (as amended) and in the mat- of the freehold simple estate or at the end of 21 days from the legal personal representatives ter of an application by Henry any intermediate interests in the date of this notice and will apply of Michael Gilmartin and Stella A Crosbie (in receivership) in aforesaid property, and any party to the county registrar for the city Gilmartin, the persons currently respect of a plot of land situate asserting that they hold a superior of Dublin for directions as may entitled to the lessee’s interest in at the Point Village, Dublin 1 interest in the aforesaid property be appropriate on the basis that the 1895 lease, intend to apply to Take notice any person having any (or any of them) are called upon the person or persons beneficially the county registrar in the county interest in the freehold estate or to furnish evidence of the title to entitled to all superior interests of Sligo for acquisition of the free- any intermediate interests in the the aforementioned property to up to and including the fee sim- hold interest and all intermediate following property at the Point the below named within 21 days ple in the aforesaid property are interest in the aforesaid property, Village, Dublin 1: all that and from the date of this notice. unknown or unascertained. and any party asserting that they those that plot or piece of ground, In default of any such notice Date: 8 May 2020 hold any interest in the aforesaid part of foot lot no 90, which is being received, the applicant Signed: McCann FitzGerald (solici- property is called upon to furnish more particularly delineated and intends to proceed with the appli- tors for the applicant), Riverside One, evidence of their title to same to described in and by a map or ter- cation before the county registrar Sir John Rogerson’s Quay, Dublin 2 64 FINAL VERDICT May 2020 Law Society Gazette gazette.ie

PRO BONOBO OK, ZOOMER – GET OUT OF THE SCRATCHER! A US judge had some choice comments on the conduct of Zoom videoconference hearings for his local district, Loweringthebar.net reports. Judge Dennis Bailey (17th Judi- cial Circuit Court) said: “The judges would appreciate it if the lawyers and their clients keep in mind that these Zoom hearings are just that: hearings. They are not casual phone conversations. It is remarkable how many attorneys appear inappropriately on camera. We’ve seen many lawyers in casual shirts and blouses, with no con- cern for grooming ... One male lawyer appeared shirtless, and one female attorney appeared still in bed, still under the covers. And putting on a beach cover-up won’t cover up that you’re poolside in a bathing suit.” BILLIE JEAN IS NOT MY DRESS CODE A German law student has won a was later informed that her denim would have done better if she had The student brought the com- complaint after she was deducted and polka-dot combo was too “resorted to white linen trousers plaint in Berlin’s administrative marks for turning up to an exam mundane and insufficiently “airy”. and a black shirt with an eth- court – the judge ruled in her wearing jeans and a polka-dot top. Reportedly, the lecturer later sent nic necklace” or a “cute or even favour and improved her score The student at the Berlin School her a text message saying that she severely cut blouson jacket”. to 1.3. of Economics and Law was reportedly penalised for failing to appear “appropriately groomed”, despite BLINDED BY THE LIGHT temperatures of 35 degrees on the A woman has been told by IPSO cerns about the accuracy of the day of the exam. A court ruled, (the British press regulator) article, as it referred to her being however, that it was not fair to mark that her attraction to historic married to the chandelier. She students down for their choice of light fittings is not a protected pointed out she was in a relation- attire “unless it was relevant to their sexual orientation, The Guardian ship with the chandelier, but was course”, The Times reports. reports. not yet married to it. Students were said to have been Amanda Liberty (33) identifies The newspaper argued that warned in advance that a dress as an ‘objectum sexual’ – an indi- sexual orientation in the context code applied. However, due to vidual who is attracted to objects. of the press regulation code cov- the unusually hot weather, the She objected to being nominated ered people who were attracted strict “businesslike dress code” by The Sun for the ‘Dagenham to people of the same sex, the was relaxed, with students being Award (Two Stops Past Bark- opposite sex, or both. Since Lib- instead told to be “groomed in a ing)’. The article mocked her breached the regulator’s code of erty was not legally able to marry manner fitting to the occasion”. public declaration of love for conduct, which requires publish- the chandelier, it would not be The woman – who chalked-up a ‘Lumière’, a 92-year-old Ger- ers to avoid prejudicial or pejora- legally discriminatory to prevent dress-code score of 1.7 (one being man chandelier she bought on tive references to an individual’s such a marriage. The regulator excellent, five being inadequate) – eBay. She argued that the article sexuality. She also raised con- agreed with the newspaper. gaLAW SOCIETY ette Giving you the power of three

1. The monthly magazine 2. The daily news site 3. The weekly digest LAW SOCIETY GAZETTE • Vol 112 No 1 No frontiers Dark knights To boldly go The possible impact of It is difficult to reconcile Correctly scoping a discovery Brexit on human rights and vigilante activity with the exercise is critically important equality provisions traditional justice system to its outcome and efficiency 2. gaLAW SOCIETY ette€4.00 JAN/FEB 2018 1. JAN/FEB 2018

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