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onrelationship Clerkin.Sureskillswith efficiently with onbut Sureskills with alsoefficiently Sureskillsbut through Sureskills with alsohelped butthrough Sureskills helpedalso facethroughcementbut through helpedalso to facecement through helpedfaceto facecementtime.relationship toto facecement time.relationshipOne time.teamtotime. ofOnetime.relationshiptime.team withthe Oneat One of time.relationship One SureSkillsbenefits Oneat thewiththe ofSureSkills of technical Onethebenefits theofthe withthe the benefits benefitstechnicalof we’vebenefitshave the withthebenefits haveteam technicalwe’ve benefitshad alwaysthe we’ve teamalwaysin fromtechnicalwe’vewe’vehad SureSkills we’ve had beeninteamfromthis, we’ve had SureSkillsbeenfrom ishad teamthis,infromavailable from thathadover SureSkills this,availablefrom is infrom this, the this, thatoveris SureSkills that this, is to this,theis thatover providetothe thatis is provide thethat thatover the thethe faceAsface interaction.”, faceAsfacepart 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Service Service easily.as firmThe throughThe througha Service The easily.firm through through The firmthrough firm firm The throughknew firmknew fromqualitywhatever knew qualitywhateverfromthat deliveryhistoryknew thatfrom theydelivery history theyfromthat thatpresented from history presented that wefromthat a couldhistory technologywe thata would technologycould expect wouldwe that couldexpectwork we very workpoint could expectaspoint high-very described,asof expect high-described, view,ofvery view, high- veryand if and nothigh-that if notthat SureSkills,alsoalsoSureSkills,2TB. adopted adoptedIt can significantly significantly Disasternow Disaster manage Recovery improving Recovery improving this asgrowth aitsas Service aitsability Service easily. ability throughto Thethroughrestoreto restore firmwhateverqualitywhateverquality deliveryqualitywhateverwhatever theywhateverquality delivery presentedthey fromdeliverywhateverquality delivery theydelivery presented they fromathey technology deliverypresentedpresented fromwould presented they afrompresented technologyfrom wouldpresenteda fromawork technology wouldtechnologya point wouldwouldtechnology workaas would technology point workdescribed, ofwould aswork view, described,pointasofworkpoint work asdescribed,view,aspointand pointdescribed, ifof described,asof notthat asview,and described,view,of ifdescribed,of view,not that if view,and notand if if not thatand and notthat ifif not thatnotthat also2TB.also adoptedItalso2TB.SureSkills,also canadopted adopted Itadopted also2TB.SureSkills,now can Disaster adopted Italso2TB.manage nowsignificantlyDisaster can Disaster Disaster adoptedItsignificantlymanage nowRecovery can Disaster this Recovery manageRecoverynow growthRecovery Disasterthis improving as manageRecovery improvinggrowtha this Service aseasily. 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PRESIDENT’S MESSAGE KEEPING AN OPEN MIND

e welcome the uplifting encourage and support a colleague in so doing. mood throughout It is a democratic organisation, but the worst- the country that the case scenario would arise if there were fewer vaccination programme members willing to serve than the number of has brought. The lack seats available. This would lead to seats being of personal contact filled without an election – or leaving vacant has caused difficulties for all of us, and created seats unfilled. challenges for the Law Society’s Council. Serving on Council has provided me with a WZoom meetings have been effective and great education, and has been a very rewarding have kept business moving. However, the lack experience. So, do please give the matter your of physical presence and the mingling and serious consideration. networking that occurs, for example, both before and after in-person meetings, has been Different views sorely lacking in virtual meetings. Given that The Law Society has a policy of diversity, such meetings are now very much part of doing inclusion and respect. Diversity also includes business, we cannot lose sight of the fact that, as listening with an open mind to those with social beings, we need face-to-face interaction. different views, which takes patience and time. I recently came across the book Why Dissent Council review Matters, by Canadian lawyer William Kaplan. Council has embarked on a review of its However, as I know that most solicitors are leadership and effectiveness. The main purpose time poor, you may prefer to take a look at his of the review is to seek to identify the issues 22-minute interview on YouTube. and processes that are either supporting or hampering its workings and its leadership. The review is also considering the manner of appointment of committee chairs and DIVERSITY INCLUDES committee members. Council members are, to a large degree, embracing the process. LISTENING WITH AN OPEN The solicitors of Ireland are well ahead of other professions, with circa 360 volunteers sitting MIND TO THOSE WITH both on Council and committees. No other professional body in the country comes near to DIFFERENT VIEWS matching this. There are more applicants than there are places on committees. I believe that The ‘Dignity Matters’ survey is being more committees can be established to harness undertaken, on behalf of the Law Society by their diverse talents and skills in niche areas. Crowe, into bullying and sexual harassment in the workplace. If only those who have Serving on Council been affected respond, we will not have a Council elections tend not to be overly representative, balanced result. It is critical that a competitive. However, serving on Council broad spectrum of the profession completes the is a much bigger commitment in terms of survey. On 6 May, Deirdre O’Reilly of Crowe voluntary effort than, for instance, serving on a provided us with the link to the survey, with a committee. request that completed surveys be submitted It is very easy to get nominated, and I would in June 2021. You can contact her at deirdre. JAMES CAHILL, earnestly ask you to consider doing so, or to [email protected]. PRESIDENT 2 CONTENTS??????? ?????? June 2021 Law Society Gazette gazette.ie PIC: ALAMY LAW SOCIETY GAZETTE • Vol 115 No 5 Bring it on home Good times, bad times No quarter Volume 115, Cristina Stamatescu speaks Examinership can be New research looks at the to the Gazette about being an an attractive option for effect of mental stress on Irish solicitor from Romania insolvent companies family-law practitioners number 5

gaLAW SOCIETY ette€4.00 JUNE 2021 June 2021

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No material from the Gazette may be published or used without the permission of 30 44 the copyright holder. The Law Society of Ireland can accept no responsibility for the 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 CBP003337 Your Gazette uses carbon-balancedCBP003337 and FSC certified paper from sustainable, CBP003337 ecologically managed forests. Visit www.carbonbalancedpaper.com and www.fsg. org. The packaging is 100% compostable and the magazine is 100% recyclable so, if disposing of it, place it in your green bin. 48 gazette.ie Law Society Gazette June 2021 CONTENTS 3

FEATURES

18 Silent witness 30 Stress test It has taken society a long time to recognise that those Dealing with complex family-law situations without adequate who witness the horrors inflicted on our most vulnerable support puts family-law practitioners at a higher risk of poor citizens are affected by what they see and hear, writes emotional, psychological and physical wellbeing. Caroline Tony Bates Kinneen and Sharon Lambert investigate

24 Immigrant song 36 Bridging the gap Cristina Stamatescu speaks to Mary Hallissey about the If a client in custody becomes mentally ill, has no next of challenges of working as an Irish solicitor from Romania, kin, and requires urgent care, how should the solicitor dealing with aggressive clients, and the loneliness proceed? John Feaheny and Seán Smith cross that bridge of the long-distance sole practitioner 40 Final examination As the pandemic fallout continues, examinership can be an attractive option for insolvent companies, with the potential to offer widespread relief to many businesses. Graham P Kenny locks and loads

40 36 50

REGULARS

4 The big picture 48 News in depth: What are the options for getting Standout photo of the month divorce or separation cases listed more quickly for hearing in the Dublin Family Circuit? 7 50 Eurlegal: The transposition deadline for the EU People Copyright Directive is fast approaching. However, it now seems likely that only a handful of member states will 8 News meet the deadline

15 Comment 55 Briefing 15 Letter 55 Council report: 7 May 2021 16 Book reviews: Capital Tax Acts 2021 and 56 Practice notes rd Child and Family Law (3 ed) 59 Regulation

44 Analysis 60 Professional notices 44 News in depth: The Law Society has expressed alarm about the possible exclusion of solicitors 63 Final verdict from the Judicial Appointments Commission 4 IN FOCUS June 2021 Law Society Gazette gazette.ie

THE BIG PICTURE

AN EYE FOR AN EYE Smoke rises after an Israeli airstrike on Gaza City on 12 May. A ceasefire agreed on 21 May paused Israel’s devastating 11-day bombardment of the overcrowded Palestin- ian coastal enclave that, according to the Gaza health ministry, killed 254 Palestinians, including 66 children, and wounded more than 1,900 people. Hamas rockets claimed 13 lives in Israel, including two children. On 26 May, the Dáil passed a motion condemning the “de facto annexation” of Palestinian land by Israel. Tabled by Sinn Féin, the motion passed after receiving cross-party support. Foreign Minister Simon Coveney stated: “The scale, pace and strategic nature of Israel’s actions on settlement expansion and the intent behind it have brought us to a point where we need to be honest about what is actually happening on the ground … It is de facto annexation … it reflects the huge concern we have about the intent of the actions and of course, their impact” gazette.ie Law Society Gazette June 2021 IN FOCUS 5 PIC: MAJDI FATHI/NURPHOTO/SHUTTERSTOCK Managing everything at your law firm = overwhelming?

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Clio—cloud-based case management made easier. Schedule your free demonstration at clio.com/ie/gazette or call our Irish team at +353 1 902 7571 gazette.ie Law Society Gazette June 2021 PEOPLE 7 SOUTHERN FAREWELL TO COUNTY REGISTRAR AFTER 35 YEARS OF SERVICE

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Tributes were paid to retiring Cork County Registrar Deirdre O’Mahony at the 26 April sitting of Cork Circuit Court in Washington Street. Deirdre’s appointment almost 35 years ago was a significant step forward for women. In the presence of Judge Seán Ó Donnabháin, Southern Law Association President Juli Rea made a presentation on behalf of her solicitor colleagues. She expressed her thanks to Deirdre for her many years of dedicated service to the legal profession and the general public. Among those present were Ms Justice Miriam O’Regan (High Court), Judge Olann Kelleher and Judge Mary Dorgan (District Court), as well as staff See how Clio makes it easy. and colleagues from the Courts Service ISIP RESTRUCTURES WITH NEW NAME

Anne O'Dwyer Robin McDonnell Shane McAleer Gareth Steen

Clio—cloud-based case management made easier. The Irish Society of Insolvency Practitioners Schedule your free demonstration at clio.com/ie/gazette recently changed its name to Restructuring and or call our Irish team at Insolvency Ireland (RII) to reflect the extent of +353 1 902 7571 restructuring work that its members carry out. Pictured are Mark Woodcock (chairman) and members of RII’s elected council Judith Riordan Jim Stafford Stephen Scott Gavin Smith 8 NEWS June 2021 Law Society Gazette gazette.ie DOHERTY: ‘PASS ON INSURANCE SAVINGS’ n Sinn Féin TD Pearse Doherty PIC: ROLLINGNEWS.IE coming through, he said, because has challenged the insurance the types of injury that fed into industry to pass on to consumers employers’ and public-liability – “euro for euro” – the savings insurance were of a moderate to they will make from reduced severe level and did not have the insurance payouts. same level of reduction. Under Mr Doherty told the Oireach- the new guidelines, in some tas Joint Committee on Finance, cases, this was down by less than on 19 May, that he had no faith 50%, he said. that insurers would pass on the Mr Doherty challenged the savings that were now resulting Zurich executive, saying that he from reduced claims payouts fol- was “changing the tune, after lowing the introduction of the the fact”, given that payouts for Personal Injuries Guidelines on minor soft-tissue injuries had 24 April – but he hoped he was now reduced by 60%. wrong. Appearing before the commit- Doherty survey tee were representatives of FBD cerned that the insurance indus- on a lot of that already.” The TD said that he had sur- Insurance, Zurich, and Aviva, try would “pocket much of the Doherty asked the industry veyed 1,000 people and, of those, who were there to answer ques- benefit from it”. Figures from representatives when premiums only 20% had seen a reduction tions on the new guidelines and the National Claims Information would actually reduce, given the in premiums, 60% had experi- their effect on premium levels; Database (NCID) show that, pledge to do so. enced increases, while 20% were business-interruption insurance over the past decade, the cost of broadly the same as the previous for businesses that had remained claims has reduced by 9% and ‘Signalling’ danger year. Brennan responded that he closed during the pandemic; the number of claims by 45%, “I have to be very careful about was surprised at these figures, and reports that people were but that premiums had risen by using numbers here today,” since Zurich had imposed a 4% being denied mortgage-protec- 35%, he said. Anthony Brennan (Zurich) told reduction in premium costs dur- tion policies due to COVID. Insurance-industry represen- the committee, adding that ing the first quarter, compared tatives had been “begging and answering clearly about planned with the same period last year. Pocketing the benefits screaming” for this reduction, reductions could be seen as The TD said that insur- Doherty asked why insurance but had not, over the past three ‘signalling’ to the market. He ance firms were pocketing huge costs had not yet been reduced, weeks, delivered reductions in said that Zurich was working to amounts of money as a result of given that the guidelines now the cost of renewal premiums. reduce costs for all its custom- premiums being written in the meant that payouts had reduced Mr Doherty cited as evidence ers. Brennan said that percent- last three weeks, as they know by up to 60%. The public a number of cases of flat or ages drawn from the NCID in “damn well” that the claims or wanted to see significant reduc- increased cover costs. 2019 would still apply on motor awards paid out will be signifi- tions in the cost of premiums, he Declan O’Rourke (Aviva) re- claims, but said he could not sig- cantly reduced. said. sponded: “Insurance is not a nal to the market the actual level “When are you and your Now that the Judicial Coun- ‘three-week game’. We are com- of reductions. company going to pass on these cil had approved the guidelines, mitted to passing on the savings On liability insurance, the reductions to policyholders?” Doherty said that he was con- and, in our view, we have passed same level of savings was not Doherty pressed. IT’S ELEMENTARY, MY DEAR WATSON! n One of the country’s largest Cork and London, all offering a ing a more tailored and specialist said, “with large universities and firms, Holmes O’Malley Sexton full suite of legal services. level of service.” city councils among our clients. LLP, has launched ‘Holmes’ – a Harry Fehily (managing part- He went on to say that the “Whether advising State, new sub-brand that will continue ner) says: “Our firm has a long- firm’s strong corporate cli- semi-State, large-scale multina- to cater for the firm’s growing standing culture of heritage, ent base would benefit from its tionals or regional stakehold- portfolio of corporate, insurance, integrity and quality, but also one strong knowledge infrastructure ers, we always aim to deliver and public-sector clients. of innovation. in the financial services, insur- practical solutions to complex The move marks an evolu- “We don’t resist change, ance, construction, pharma and problems. As a firm, we are tion in the 50-year-old firm. It we embrace it. The launch of technology sectors. very much focused on contin- now boasts a team of 140 staff, Holmes reflects how we adapt to “Our public-sector portfolio ued business growth from these with offices in Dublin, Limerick, the needs of our clients, provid- has also greatly increased,” he markets.” gazette.ie Law Society Gazette June 2021 NEWS 9 MOVE YOUR CAREER TO THE NEXT LEVEL n The Law Society is invit- pleted in advance of the one- ing applications for this year’s hour Zoom training session in Women in Leadership mentor- September. ing programme. Applications are • September 2021: one-hour invited from both mentors and Zoom follow-up training ses- mentees on a countrywide basis, sion in best-practice mentor- and from all areas of practice. ing techniques. All online The programme is presented in learning will be via self-paced collaboration with Law Society courses and are eligible for Finuas Skillnet, which will pro- CPD hours. Following suc- vide both mentor and mentee cessful completion of training, training activities. applicants are informed of the The programme aims to match details. empower and support women • October 2021: the mentoring in advancing their careers to a relationship begins. senior level. As a mentee, you What’s next? • August 2021: applicants • May 2022: the mentoring rela- may be wondering how you can • June 2021: complete the (mentors and mentees) are tionship concludes. progress to your next role, need online mentor or mentee app- informed via email whether help in developing a new skill that lication form, both of which they have been successfully Queries about the programme you find difficult, or be seeking can be found at lawsociety.ie. matched. Where a match should be emailed to lw@law guidance through these turbulent Applications should be sub- has been secured, applicants society.ie and queries about times. As a mentor, passing on mitted by Friday 25 June for will be contacted with access training to finuasskillnet@law your experience and knowledge a chance to be matched in this details to the Law Society Fin- society.ie. More information can can be highly rewarding, and it is year’s programme. uas Skillnet mentor and men- be found in the Women in Lead- a great way to support colleagues • July 2021: matching takes tee self-paced online courses. ership section at lawsociety.ie/ in the legal profession. place. These courses must be com- womeninleadership. DIGNITY MATTERS SEEKS VIEWS NOTICE – n Last month, the Law Soci- ety launched the Dignity Mat- SBA AGM ters survey. Its goal is to provide n Notice is hereby given that the an objective assessment of the 157th annual general meeting of current work environment as it the Solicitors’ Benevolent Asso- relates to bullying, harassment, ciation will be held remotely by and sexual harassment in the video conference on Monday 21 solicitors’ profession. June 2021 at 11.30am. The confidential survey is It will consider the directors’ being carried out with the help report and financial statements of external consultants Crowe for the year ending 30 Novem- (Ireland) and has been emailed ber 2020, elect directors, and to everyone on the Roll of Solici- deal with other matters appro- tors who has ever practised in tions to the profession on how express its thanks to everyone priate to a general meeting. A Ireland. Trainees have also been to tackle bullying, harassment who has completed the survey to copy of the directors’ report invited to participate. If you have and sexual harassment, and how date. By participating, you will and financial statements can be not received an email with a link to best prepare for challenges contribute to evidence that will found at www.solicitorsbenevo- to the survey, please email Deir- ahead, as guided by international influence a change programme lentassociation.com. dre O’Reilly at deirdre.oreilly@ research carried out by the IBA on for the profession. Julie Breen Any member intending to join crowe.ie. She will reissue the sur- these issues. A change programme (Professional Wellbeing Proj- the meeting should send their vey to you via email. to implement the recommenda- ect coordinator) is managing email address to the associa- Once all survey submissions tions will follow upon approval by the roll-out of the Dignity Mat- tion’s secretary, Geraldine Pearse, have been received, and after the the Law Society Council. You can ters survey. If you have feedback at contact@solicitorsbenevolent analysis and evaluation phase is find out more about this project at or questions, you can contact association.com. They will re- complete, Crowe will deliver a www.lawsociety.ie/dignitymatters. Julie at professionalwellbeing@ ceive an email with the link to final report with recommenda- The Law Society wishes to lawsociety.ie. join the meeting. 10 NEWS June 2021 Law Society Gazette gazette.ie

ENDANGERED LAWYERS MINISTER SEEKS BERNARD COLLAERY, AUSTRALIA

PIC: SHUTTERSTOCK INPUT ON FAMILY- LAW REFORM n The Department of Justice’s consultation on the future of the family-justice system remains open only until 11 June. The consultation hopes to draw on the experiences of legal practi- tioners and family court users to find ways to modernise and improve the system. Minister of State Hildegarde Naughton said: “The establish- Bernard Collaery (76) is a former Information (Criminal and Civil ment of a family court and a attorney general of the Austra- Proceedings) Act 2004. transformed family-justice sys- lian Capital Territory and is the In mid-May, Collaery’s appeal Hildegarde Naughton: ‘Help us tem is one of the major elements decide what a future family-justice principal of Collaery Lawyers, a against an ACT Supreme Court of Justice Plan 2021. This con- system might look like’ Canberra-based law firm. Col- decision upholding a secret trial sultation process will support the laery represented the interests was heard by the High Court Family Justice Oversight Group, and will, for the first time, seek of the people of Timor-Leste over (the federal supreme court) – the which is chaired by the Depart- the views of children and young a long period of time, acting as appeal itself was heard in camera. ment of Justice, as it drafts a people. The public consultation legal advisor to the National Con- To successfully prosecute Col- family-justice strategy to help us (which opened on 17 May for gress for Timorese Reconstruc- laery, the government will likely bring about these much-needed four weeks) can be accessed at tion in the period leading up to have to admit that the spying reforms.” www.justice.ie (search for ‘Open formal independence in 2002. took place, but does not wish to The next stage of consultation Consultation on the Future of In 2013, Collaery alleged that admit this publicly. The circle can will take place later this summer Family Justice’). two agents from the Australian only be squared by holding the Security Intelligence Organisa- trial behind closed doors. tion raided his Canberra office This ongoing prosecution has and seized electronic and paper led to calls for reform of the READY, STEADY, files. At that time, Collaery was NSI Act to better safeguard the CALCUTTA RUN! representing a witness in a case principles of openness and trans- n brought by the Timor-Leste Gov- parency. The high cost of the The virtual Calcutta Run will ernment against the Australian trial to date has been deplored, be opening for registration in Government over the bugging of and there are many calls for the June, so check with your firm for the Timor-Leste Cabinet offices prosecutions to be discontinued, details and keep an eye out for during the negotiations for a citing the chilling effect, among more news at calcuttarun.com, petroleum and gas treaty in 2004. other reasons. in the Gazette, and on gazette.ie. In 2018, he and his client (a Long-promised reform of the The virtual run is scheduled to former intelligence officer known federal whistleblowing legisla- take place from 17-26 September. as ‘Witness K’) were arrested and tion, the Public Interest Dis- If COVID-19 restrictions ease charged with breaching secrecy closure Act 2013, is also being over the coming weeks, however, laws. The bugging has not been called for. In relation to that act, and it becomes possible to orga- accepted by successive Austra- two other prominent whistle- nise a run or scaled-back event lian governments, which have blower prosecutions are ongoing: at Blackhall Place, the organisers charities have been struggling maintained a ‘neither-confirm-nor- against defence whistleblower will keep you updated. with funding during the past deny’ stance. Both nations signed David McBride and tax-office It’s vital that the legal profes- year, so the plan is to reach the a revised energy treaty in 2018. whistleblower Richard Boyle. sion continues to support the same target as in recent years. A major feature of the Collaery benefit charities – the Peter To be kept updated on devel- and ‘Witness K’ cases is that they Alma Clissmann is a member of the McVerry Trust and The Hope opments, visit www.calcuttarun. have been held in secret in accor- Law Society’s Human Rights Com- Foundation – in order to assist com and sign up for the news- dance with the National Security mittee. those experiencing homeless- letter at the bottom of the home ness in Ireland and Kolkata. The page. gazette.ie Law Society Gazette June 2021 NEWS 11

IRISHWOMAN NEW IRLI IN MALAWI CASH BONDS THAT PENALISE THE POOR LEADER AT GLOBAL PIC: MACDARA Ó DRISCEOIL GIANT LINKLATERS n Global law firm Linklaters LLP has elected Monaghan-born Aedamar Comiskey as its new senior partner. The 1990 UCD BCL graduate, who currently serves as the firm’s global head of corporate, will take up her five- year term on 1 July, succeeding incumbent Charlie Jacobs. Jacobs said: “The Linklaters partners have chosen a terrific next senior partner. I have known Aedamar for her whole career at Aedamar Comiskey Linklaters. I have so much admi- In Malawi, suspects granted bail paralegal before being examined ration for her client focus, strate- proud to have been elected: “I frequently continue to remain by the court. gic thinking, and leadership skills, want Linklaters to stand out as in prison for extended periods If there is a risk of mob justice, not to mention her energy and the law firm with the best minds because of extreme poverty. the community may not want the passion for our people, culture in the business, from truly diverse Bail is often granted by the accused to be released on bail. and communities. I know she backgrounds, contributing differ- court on condition of payment The law states the court may will lead the firm with confidence ent perspectives to solve the com- of an unaffordable cash bond. only refuse bail in exceptional and distinction, and I shall follow plex challenges facing business Families struggling to raise the circumstances because of a risk with great interest the direction and society today.” necessary money may have no of retaliation. Community dis- in which she takes the firm dur- Comiskey joined the firm as a choice but to sell their most trust in the legal system some- ing her term.” trainee in London 29 years ago expensive possessions, such as times leads to mob violence. It is, Comiskey said she was hugely and was elected partner in 2001. land or a goat, to secure the therefore, crucial to ensure that release of a family member. The the suspect has a safe place to GONG FOR DIPLOMAS law states that no suspect with live if released. bail should be forced to remain The community may believe n The Law Society’s Diploma in prison because of poverty. the accused is guilty of the Centre has won Public Sector Mag- Despite this, many judges con- offence and may not under- azine’s education support category tinue to impose cash bonds that stand the difference between at this year’s Excellence in Business penalise the poor. an acquittal and release on bail th Awards. Now celebrating its 20 The courts will generally pending trial. The slowness of year, the Diploma Centre offers require that two family mem- the legal process reinforces the an impressive portfolio of over 80 bers act as sureties before a community’s misconception that postgraduate courses, from cer- suspect is released on bail. bail is indistinguishable from an tificates and diplomas to master’s Sureties, who often live in iso- acquittal. programmes. During the pan- lated and inaccessible villages, In many cases, people will demic, all courses have been deliv- must travel to be examined at gather together to discuss the ered entirely online. The tech- Claire O’Mahony court. Families often struggle case before deciding whether nology can record, stream, and to locate transport money, with or not to welcome the suspect replay courses, providing flexible our programmes. We are com- sureties in one case setting off back to the community. IRLI’s learning options. In non-COVID mitted to providing courses that from their village at 3am to role in sensitising communities times, participants also have the reflect value, relevance and prac- travel 90km on an old bicycle to on human rights is, therefore, a option of on-site learning at the ticality, and that serve the needs the court in Lilongwe. IRLI sup- crucial aspect of the rule of law modern Blackhall Place campus. of the public sector. Congratula- ports such cases, often meeting in Malawi. Accepting the award, Claire tions to the entire Diploma Cen- family members in the shade of O’Mahony (acting head of the tre team, which works tirelessly a mango tree in front of court, Macdara Ó Drisceoil is IRLI’s legal Diploma Centre) said: “We are to deliver excellent, flexible legal where they are orientated by a aid bureau programme lawyer. delighted with the recognition for education.” COURT OF JUSTICE OF THE EUROPEAN UNION

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WELLBEING

Our ‘Ask an expert’ section deals with the wellbeing issues that matter to you THE CRITICAL VOICE IN MY HEAD Recently, I have noticed are undeserving of the role, or hit each one of us at different one of these negative beliefs a very critical voice in that everything you are doing times. When this happens, it you have about yourself, and my head. I feel like I do is wrong. It is often a difficult can distort our confidence and you will begin to see how many notQ deserve or shouldn’t be in the task to find factual evidence to self-esteem. One way of tack- are factual, somewhat factual, role I have. I presume that every- support these thoughts. The ling it is to challenge the self- or not at all – and reinstall thing I do in work is wrong and thoughts we have are quite limiting beliefs you have about some empowering beliefs. that I am not good enough. How normal and can sometimes yourself and counteract them can I prevent these thoughts from spring from how we feel about with empowering beliefs. To submit an issue that you’d occurring? ourselves and our self-esteem. Empowering beliefs must be like to see addressed in this col- It can also show up in the factual and realistic, whereby umn, please email professionalwell As humans, we can form of what is commonly you discover that your self- [email protected]. Confidential- often downplay our referred to as ‘imposter syn- limiting beliefs are usually a ity guaranteed. success, accrediting drome’ (IS). IS generally refers story that you have been tell- This question and answer is Ait to sheer good luck or being to someone who believes they ing yourself that you believe to hypothetical and was written by in the right place at the right are undeserving of the role be true. A starting point could Ursula Cullen, solicitor and certi- time, instead of the likely truth they are in, or feel incompe- be challenging the belief that fied life and executive coach. Any – which is that our success is tent, or not good enough for ‘everything I do is wrong’. Ask response or advice provided is not due to our skillset, knowledge it. To put it plainly, you may yourself whether that’s a factual intended to replace or substitute and experience, which is why feel like a phony in the role, statement or whether it is your for any professional, psychological, we were likely hired in the first or playing at the title you have own thought about the situa- financial, medical, legal, or other instance. been given. tion. Remember: our thoughts professional advice. Like any good lawyer would Contrary to what you might are not always factual. LegalMind is an independent do, the first step is to look at the think, this is quite a common An empowering belief to and confidential mental-health factual evidence we have to sup- experience among profes- counteract this could be: ‘I am support available to Law Society port our claim. I suggest that sionals at all levels and back- learning a new task and have members and their dependants, 24 you look at the factual evidence grounds, regardless of status, done things correctly in the hours a day, and can be contacted at that underlies the idea that you position or education. IS can past.’ Begin to challenge each 1800 81 41 77.

UrgeUnrt gCeanlltU fCorgra eLlln aftow Cry aLelrals wf otyor e LVrasow ltuoyne tVersoe lrtu oon nVteoelur notneer on FLACUFr'LsgA eTCnet'l seFC pLaThAlelo Cflneo'ersp LhITnaoefwnoleyerpme Irhnaso fttoinore nmV ILonailfuntoinoertmne eaLrti inoenn Line FLAC's Telephone Information Line

During Covid-19 FLAC is experiencing a demand for our services which we just cannot meet without your assistance During CDouvridin-g1 9C FoLvAidC-1 is9 eFxLpAeCrie insc einxgp ea rdieenmcainngd afo dr eomura snedr vfiocre so uwrh sicehr vwicee jsu swt hciacnhn wote m juesett cwaitnhnooutt myoeuer ta wssitihsotauntc yeour assistance

During Covid-19 FLAC is experiencing a dema nd for our se rvices which we just cannot meet without your assistance We are asking qualified solicitors and barristers to volunteer on a regular basis remotely for a day or We are aWskein agr eq uaaslikfiiendg sqouliacliitfoiersd asnodli cbiatorrriss taenrsd t ob avrorliusnteterse rt oo nv oal urengteuelarr obna sai sr eregmuloatre blya fsoirs a r edmayo toerl y for a day or hal fW-dea ya roen a FskLiAngC ’qsu taelilfeihepdah lofs-nodelaic yiint oofornsr mFanLadtAi oCbna’ srlri nitseetle eprpsroh tvoi ndveion ligunn fbotearesmric ao tlneio gana rlei nigneufo lparrmo bavatidsioiisn g.re bmaostiecl yle fgora al i ndfaoyr mora tion. half-day on FLAC’s telephone information line providing basic legal information. half-day on FLAC’s telephon e information line providi ng basic legal information.

Please send your expre Pslseioans eo fs einntedr eyostu ar nedx par esshsoirot nC oVf tion tienrfeos@t aflancd. iae short CV to [email protected] Please send your expression of interest and a short CV to [email protected] Please send your expre ssion of interest and a sh ort CV to [email protected] Can you volunteer witCh ausn tyoo mu avokelu n at edeifrf ewreitnhc ues? to make a difference? CaCna yno yuo uv ovolulunnteteeerr wwiitth uss ttoo mmaakkee a a d idffieffrernecnec?e? Restructuring & Insolvency Ireland (formerly the Irish Society of Insolvency Practitioners), an organisation comprising of accountants and solicitors working in the insolvency profession in Ireland, was established in 2004. From a small beginning membership has grown to several hundred. LegalMind Supporting Mental Health and Resilience RII has a number of objectives, including: in the Legal Community Providing a forum for consideration and discussion • Providing a forum for consideration and discussion LegalMind is a confidential, independent, low-cost mental health of Insolvency matters. support for solicitors and their dependants. Promoting best practice in the area of Insolvency. The support is a permanent support, based in Ireland, and will be • there for solicitors through any personal or professional challenges. Liaising with Government agencies and making • Liaising with Government agencies and making Solicitors can call LegalMind at any time of the day or night, from all recommendations on legislative reform governing over Ireland, and talk to a mental health professional about any issues they or their family may be facing. Insolvency. After this initial conversation, solicitors may then avail of further low- Promoting the study and learning of Insolvency • Promoting the study and learning of Insolvency cost supports – counselling, psychotherapy or psychological supports • within a 30 kilometre radius of their home. practice. For more information about what we do, please go to our website www.rii.ie For more information visit: www.lawsociety.ie/legalmind Access the service directly and talk to a counsellor now on freephone: Expertise in Challenging Times 1800 81 41 77

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www.crisiscover.ie [email protected] HELP KEEP VITAL SERVICES OPEN gazette.ie Law Society Gazette June 2021 Letter COMMENT 15 KEY CONSIDERATIONS IN RESPONDING TO AUDITORS’ QUERIES From: Mary Tobin, Meagher Solicitors, 8 Exchange Place, IFSC, Dublin 1 t is tempting to view the job of replying to audit requests as an inconvenient, time con- Isuming and thankless one. How- ever, this work can become less onerous through the implemen- tation of internal procedures for responding to auditors’ requests that reflect the delineation of the roles and responsibilities of offi- cers of the client company versus those of solicitors. A clear policy balancing the client’s auditors’ requirement for information with the client’s right to confidentiality would minimise the practice-man- agement risk inherent in replying to audit requests. I suggest that in developing appropriate procedures, the fol- lowing matters would be taken into consideration: request, listing the relevant items, Arguably, solicitors could not client’s auditor and the client’s a) Is the format of the audit and making estimates, and speci- reasonably be expected to have solicitor do not benefit from legal request acceptable? Check whether fying any outstanding or threat- access to the necessary informa- professional privilege, solicitors it goes beyond the ‘standard’ ened claims in compliance with tion to enable them reply fully to should consult with their client request agreed between Chartered their statutory obligations to do such questions. If solicitors were and obtain their client’s express Accountants Ireland and the Law so (see section 330 of the Compa- to take on the burden of reply- authority prior to disclosing Society of Ireland and the Law nies Act 2014). ing to such general queries, and information to the auditor, which Society of Northern Ireland to Alongside their legal respon- they were to omit an outstanding then arguably loses its privilege confirm whether, in the solicitor’s sibility to complete the audit claim in which another solicitor and could be disclosed by the opinion, the estimated provisions request, the company directors in the practice had been con- auditors to third parties. provided the company directors are afforded some statutory pro- sulted and which had been omit- The solicitor’s right to with- are reasonable (see the Business tection against negligence or ted from the client’s list, they hold information from replies Law Committee guidance on default in the act of completion, could potentially be guilty of to audit requests on the grounds responses to audit queries in the in that a court may grant relief negligence, or in breach of con- of privilege is recognised in the May 2021 Gazette, p62) to officers of a company if they tract. Companies Act (section 392(7) of If the audit request is non-stan- acted honestly and reasonably Also, replying to such non- the 2014 act), which provides dard, then consider the potential (see section 233 of the Companies specific questions would require that no one may be compelled to practice-management risks of pro- Act 2014). solicitors to form judgements as disclose any information to the viding an unqualified response. No such safety net extends to to the materiality of claims, which auditors that a person would be b) Has the audit form been com- solicitors. would seem to be an intrinsically entitled to refuse to produce on pleted by the company directors? c) Does the audit form include a risky step to take, as they would the ground of legal professional Resist any attempt by the client ‘non-standard’ request to answer not be qualified to do so. privilege. to shift the burden of completing non-specific questions? For example, Consider whether it would it be Finally, in view of the value to the audit request to the solicitors does the audit form ask whether appropriate to disclaim detailed the client of this important work, – the solicitor’s job is to confirm there are any other material knowledge of matters listed, and and the risk element involved in the reasonableness of the esti- claims made/threatened against qualify the reply. replying to audit queries, consider mated provisions. the company of which the solici- d) Has the client authorised the making specific provision in the Insist that the directors of the tors are aware or, if there are, to reply to the audit request? Because section 150 legal costs letters to company complete the audit specify them? communications between the charge for it. 16 COMMENT Books June 2021 Law Society Gazette gazette.ie CAPITAL TAX ACTS 2021 Michael Buckley (editor). Bloomsbury Professional (2021), www.bloomsburyprofessional.com. Price: €125 (incl VAT).

This book, now in its 29th edition, was first published in 1989. This is a definitive refer- ence book on capital taxes, edited by Michael Buckley of the Revenue Commissioners. An explanation as to how to use the book, and the Taxpayers’ Charter of Rights, is covered in the preface. The book is divided into three parts: capital acquisitions tax, stamp duty, and Irish local property tax. Medical Law It sets out the consolidated versions of Medical Law the Stamp Duties Consolidation Act 1999, the Bloomsbury Capital Acquisitions Tax Consolidation Act 2003, Bloomsbury and the Finance (Local Property Tax) Act 2012, Professional Ireland’s Professional Ireland’s together with legislation, regulations, and newest online service newest online service orders relevant to each tax head. This edition Irish Medical Law provides incorporates the Finance Act 2020 changes, subscribersIrish Medical with Law unlimitedprovides together with recent case law. accesssubscribers to key, withmarket-leading, unlimited The book is extensively, but concisely, accesstitles concerningto key, market-leading, a range of cross-referenced and annotated to a high titles concerning a range of technical level, identifying to the reader aspects of medical law aspectsin ofIreland. medical law amendments,Irish Securities case law, Law Revenue practice and in Ireland. material,Irish narrativeBy Securities Paul Egan references, Law and Tax Appeal By Paul Egan TITLES INCLUDED: CommissionPub Date: determinations. Aug 2021 A useful table TITLES INCLUDED: of cases,ISBN:Pub a Date:9781526520401table Augof statutory 2021 references, and Medical Law in Ireland ISBN:Price: 9781526520401 €215 a destination table are provided. Where only tion in a single, convenient publication and, by SimonMedical Mills Lawand Andreain Ireland Mulligan Price: €215 by Simon Mills and Andrea Mulligan the subject matter is known to the reader, a in so doing, has carried out a real service for Medical Negligence and Childbirth Consumerhelpful index and is SME provided. Credit Law in solicitors working in this area. This book will Medicalby Negligence Doireann O’Mahony and Childbirth ConsumerAt 1,729 and pages,Ireland SME thisCredit book Law is in voluminous prove to be of immeasurable value to prac- by Doireann O’Mahony Ireland Medicine, Ethics and the Law but, dueBy to Nora its well Beausang laid-out structure, is easy titioners, policymakers and academics alike. PubBy Nora Date: Beausang Jun 2021 Medicine,by Deirdre Ethics Madden and the Law to navigate. How useful it is to have in one My version is already tagged with sticky notes by Deirdre Madden ISBN:Pub Date:9781526515872 Jun 2021 A Practical Guide to Medical place ISBN:a comprehensivePrice: 9781526515872 €295 and up-to-date pub- – a mark of its utility. A PracticalNegligence Guide Litigation to Medical lication coveringPrice: €295 capital acquisitions tax, Negligenceby Michael Litigation Boylan stamp duty, and local property tax! The edi- Ruth Higgins is a solicitor and CTA with Gerrard by Michael Boylan tor has painstakingly annotated the legisla- L McGowan LLP. Features of Bloomsbury ProfessionalFeatures of Online Bloomsbury include premiumProfessional content Online from include leading premiumexperts, content regular from updates, leading exclusiveexperts, content,regular updates, powerful searchexclusive and content, advanced powerful filters, TAKETAKETAKE FIVE… FIVE… FIVE… searchand documentand advanced sharing filters, and documentcapabilities. sharing LawWatchLawWatchLawWatch – delivered – delivered – delivered every every Thursday every Thursday Thursday to your to your toinbox… your inbox… inbox… capabilities. KeepKeep upKeep to up date to up date withto date with recent with recent judgments, recent judgments, judgments, legislation legislation legislation To purchase a subscription, organise and andtopical andtopical journaltopical journal journalarticles articles articlesby scanning by scanning by scanning the library’sthe library’sthe library’s To purchase a subscription, organise a free trial or request a remote LawWatchLawWatchLawWatch newsletter newsletter newsletter every every week. every week. week. a demonstration,free trial or request please a remoteemail: demonstration, please email: [email protected] your copies today SentSent to allSent to all members,to allmembers, members, it takes it takes justit takes justfive justfive minutes five minutes minutesto stay to stay to stay [email protected] your copies today bloomsburyprofessional.com informed.informed.informed. Enquiries Enquiries Enquiries to: to: to: [email protected]@[email protected] or tel: or 01tel: or 672 01tel: 4843.672 01 6724843. 4843.

LibraryLibrary adLibrary Gazette ad Gazette ad Jan_Feb Gazette Jan_Feb 2017.inddJan_Feb 2017.indd 2017.indd 1 1 1 25/01/201725/01/201725/01/2017 15:09 15:09 15:09 gazette.ie Law Society Gazette June 2021 Books COMMENT 17 CHILD AND FAMILY LAW (3RD ED) Geoffrey Shannon. Round Hall (2020), www.roundhall.ie. Price: €365 (incl VAT). Over three decades, Prof Geoffrey Shannon on the protection of children in the digital has established himself as one of Ireland’s environment. leading experts in child and family law. A It is genuinely difficult to do justice to this powerhouse of wisdom and expertise in this most impressive text, this tour de force con- important area, Prof Shannon has made an tribution to the field of Irish child law. The immensely positive contribution to this field, book is both broad in scope and immensely not least in this book, Child and Family Law. detailed in its coverage. Throughout, the The third edition of this impressive text author marries a high-level constitutional and offers a wide-ranging and thorough account international legal analysis with a keen eye for of all aspects of child law. It opens with an the fine detail of legislation and the nuance illuminating critique of the overarching con- of case law. stitutional framework addressing children’s Characteristically clear, precise and read- rights, followed by a very useful review of able, the text not only addresses the con- multiple topics as they relate to children, tent of the law, but also provides illuminat- including citizenship law, contract law, torts, ing context and critical analysis that greatly succession, marriage, and employment law. contributes to the reader’s understanding. The text also offers detailed analysis of rel- Policymakers will find the content especially evant EU law measures and international invaluable in shaping further reform of the conventions, as well as a very informative law, but Child and Family Law will also prove chapter on education and the law. to be a superb resource for practitioners, There is a strong focus throughout the child professionals, academics, and students book on child safeguarding, welfare, and pro- seeking a comprehensive expert account of tection, with care proceedings and options child law. for children in care featuring prominently. covered – as is the experience of children, This edition continues the text’s outstand- An entire chapter addresses the prevention generally, in the courts system. ing contribution to the field of child law. It of, detection of, and responses to child abuse. The text comprehensively examines the will be a most welcome addition to the book- In addition, the text explores the law relating topics of adoption, guardianship, custody, shelves of anyone engaged in, or interested to child refugees, asylum-seekers, and sepa- access, and maintenance, as well as child in, exploring all aspects of this important area rated minors, as well as the legal position of abduction. The closing chapter fittingly looks of law. children with disabilities. The law relating to to the future of child law, with some thought- children in the criminal justice system, both provoking detail on medical aspects of child Dr Fergus Ryan is senior lecturer in the Depart- as alleged perpetrators and as victims, is also law, assisted-reproductive technologies, and ment of Law, NUI Maynooth.

LegaL eZine for MeMbers

The Law Society’s Legal eZine for solicitors is now produced monthly and comprises practice-related topics such as legislation changes, practice management and committee updates.

Make sure you keep up to date: subscribe on www.lawsociety.ie/enewsletters or email [email protected]. 18 COVER STORY June 2021 Law Society Gazette gazette.ie

SILENT WITNESS It has taken society a long time to recognise that those who witness the horrors inflicted on our most vulnerable citizens are affected by what they see and hear, writes Tony Bates

DR TONY BATES IS A CLINICAL PSYCHOLOGIST, ADJUNCT PROFESSOR OF PSYCHOLOGY, A WRITER AND BROADCASTER gazette.ie Law Society Gazette June 2021 COVER STORY 19 PIC: ALAMY 20 COVER STORY June 2021 Law Society Gazette gazette.ie

AT A GLANCE n In the family and criminal courts, judges, solicitors, barristers and Courts Service staff encounter the darker side of human nature n Those who come into continued close contact with trauma survivors may also become indirect victims of that trauma n ‘Secondary traumatic stress’ applies to most people who are exposed to traumatic experiences that come before the courts

n 2016, a British High Court judge cried during a hearing. Later that year, a second judge became tearful in similar circumstances. Both had been listening to testimonies of unspeakable sexual violence. The popular press had a field day. The credibility and competence of both men were called into question. None of the media reportage bothered to ask why it had happened. At the time, the Lord Chief Justice was Sir Thomas of Cwmigedd. Concerned for his colleagues and annoyed at the short-sightedness of the press, he issued a strong public statement: “Few people have any idea of the sheer depravity to which people can sink, and a judge often has material in front of him which cannot but distress people.” He added as a note of caution: “The difficulty we face at the moment is that the rise in sexual offending is continuing.”

Darkness visible In the family and criminal courts, judges, solicitors, barristers and Courts Service staff encounter the darker side of human nature. Our potential for cruelty and exploitation of the most vulnerable citizens is on display in graphic detail every day. It has taken society a long time to recognise that those witnessing these gazette.ie Law Society Gazette June 2021 COVER STORY 21 PIC: SHUTTERSTOCK

FEW PEOPLE HAVE ANY IDEA OF THE SHEER DEPRAVITY TO WHICH PEOPLE CAN SINK, AND A JUDGE OFTEN HAS MATERIAL IN FRONT OF HIM WHICH CANNOT BUT DISTRESS PEOPLE horrors in the course of their daily work language for how we are affected by When our feelings become intense, and are affected by what they see and hear. witnessing the impact of trauma in the lives when we can neither fight against what We have struggled to find language to of others is ‘secondary traumatic stress’. is happening nor escape, we freeze. We describe this. Terms such as ‘compassion Whatever words we use, what we’re talking lock the intense emotions that have been fatigue’, ‘burnout’, and ‘vicarious trauma’ about is the vulnerability of those who care provoked in us into our muscles and have failed to capture the lived experience about the suffering of others. tissues. And only when we feel safe are we of shock and distress that exposure to these Trauma refers to what happens inside able to release our pent-up shock and make horrors can provoke. Lately, the preferred us when we experience a distressing event. sense of what has happened. 22 COVER STORY June 2021 Law Society Gazette gazette.ie

In plain sight distressing details of the cases they dealt with But sometimes it’s not easy to acknowledge on a routine basis. The most distressing cases what we have experienced. We are left in a were those involving graphic details of child twilight zone where we can’t take it in, and abuse and road-traffic accidents, especially we can’t ignore it. We can’t move on. We when they involved photographic and video become frozen in time. We do what we can evidence. to avoid thinking or talking about what has happened. early a fifth of the DPP staff were Our blocked emotions give rise to physical found to ‘frequently or very often’ symptoms, feelings of anxiety, helplessness use medicines or non-prescription

and anger, and unwanted intrusive PIC: SHUTTERSTOCK medicinesN to cope with the stress of their thoughts. When these persist over time and jobs, while a similar proportion relied on compromise a person’s ability to function, we alcohol. Others reported trouble sleeping describe a person as having post-traumatic or experiencing a heightened degree of fear stress disorder (PTSD). for their own children’s safety as a result of dealing with child sex-abuse cases. Fewer he term ‘secondary traumatic stress’ than 5% of the 106 people who completed (STS) refers to the observation shocked, saddened, or vulnerable. the survey had sought professional assistance. that people (such as family, friends, STS includes symptoms that parallel Fewer still had looked for any support from andT human-services personnel) who come those experienced by people who suffer the management in dealing with the emotional into continued close contact with trauma consequences of direct exposure to trauma impact of their work. survivors may also become indirect victims – unwanted intrusive imagery about what of that trauma. Charles Figley (1999) defined has been witnessed, emotional numbing, In a lonely place STS as “the natural, consequent behaviours attempts to avoid anything that might trigger In 2016, my colleague Micheline Egan and emotions resulting from knowledge memories of the event, and a constant feeling and I were invited by the Learning and about a traumatising event experienced of being ‘on edge’. Development Department in the Courts by a significant other. It is the stress Like PTSD, STS reactions can persist Service to run a series of one-day workshops resulting from helping or wanting to help a well beyond exposure to some horrific to help staff understand and cope with traumatised or suffering person.” incident, and can compromise one’s ability STS. These training days were run on a to function. The term ‘secondary traumatic regular basis over three years, throughout Beyond guilt stress disorder’ (STSD) is used to refer to Ireland, and were always fully subscribed. In legal settings, when we listen to traumatic the situation where symptoms persist and Participants were those who played a critical events being replayed in detail, we become interfere with one’s work, close relationships, supportive role to the Courts Service. a ‘witness’ to rape, child abuse, domestic and peace of mind. One man described the many hours he violence, and death. We collect bits and A very important Irish survey conducted had to spend in family courts listening pieces of these accounts, which can leave us by barrister Jennifer Bulbulia (2019) – to accounts of domestic violence where with pictures in our mind or intense feelings commissioned by the DPP because of children were implicated. He described running through our body. It is normal to concern for the wellbeing of her staff – himself as a “silent witness”, adding: “I am be affected by such experiences. It is not revealed that almost 60% of staff in that invisible in court settings. I sit quietly and surprising that we feel outraged, horrified, department suffered from exposure to the listen to everything, but I can’t react. Some

IN THE FAMILY AND CRIMINAL COURTS, SOLICITORS, BARRISTERS AND COURTS SERVICE STAFF ENCOUNTER THE DARKER SIDE OF HUMAN NATURE. IT HAS TAKEN SOCIETY A LONG TIME TO RECOGNISE THAT THOSE WHOSE JOB IT IS TO WITNESS THESE HORRORS ARE AFFECTED BY WHAT THEY SEE AND HEAR gazette.ie Law Society Gazette June 2021 COVER STORY 23

THE LIKELIHOOD OF EXPERIENCING SECONDARY TRAUMA IS INCREASED WHEN THERE IS A STRONG PERSONAL IDENTIFICATION WITH THE VICTIM. UNTIL WE RECOGNISE THIS, NO ORGANISATION CAN BEGIN TO DEAL WITH IT PROPERLY days, I take it all in my stride and I think it’s for all concerned – including themselves – Factors promoting resilience include the not affecting me. But then I go home, and and move on with their lives. ability to acknowledge the gravity of what when my head is on the pillow, everything Recovery does not mean that we forget is encountered, knowing how to take care hits me.” what has happened, or that we don’t have of oneself in the aftermath of shock, and Typical symptoms of STS that strong emotions about abuses we have having access to real relationships where we participants have reported include witnessed. But we accept that really bad can reflect safely on what we’ve experienced. muscle pain, abdominal disturbances, things happen, and we channel the energy sleep difficulties, ‘zoning out’ on the of our empathy and outrage in whatever way he strongest message that participants job, developing a fixed gaze that draws we can. in these training days left us with comments from co-workers, difficulty STS can become a problem where a was the need to recognise that STS absorbing new information, and self- person is unable – or not allowed – to appliesT to most people who are exposed medicating (food and alcohol). The most acknowledge their distress in response to to traumatic experiences that come before common reaction was to feel ‘ashamed’ work-related atrocities that they witness. the courts. The likelihood of experiencing for reacting as they did. Many kept their For such a person, getting back to business secondary trauma is increased when there problems a secret for fear of being seen as as usual may require that that they shut is a strong personal identification with ‘weak’. down what they feel and try hard not to the victim. Until we recognise this, no think about the images they’ve been left organisation can begin to deal with it One of our own with. When that person shuts down painful properly. Similar to the findings of Jennifer Bulbulia’s feelings and memories, they find it hard to The resources people need are largely research, we encountered particular distress be present with others. They may appear informal: sensitivity and checking-in in parents who had listened to testimony of withdrawn. Their close relationships may by supervisors; opportunities to access sexual abuse and violence to children who become troubled. Unprocessed emotional informal mentoring from more experienced were the same age as their own. Previous distress also compromises their immune colleagues; education and training in how experience of issues that emerge in the system. People are more prone to illness, to manage distressing images, feelings and courts also make a person more vulnerable. and they develop physical symptoms that physical symptoms; and what responsible One woman working in the Family Court they often assume are unrelated. self-care means. Certain staff may need described how “every day I’m in there access to professional therapeutic help, watching children who’ve been abused, it A time to heal and this should be facilitated in a way that triggers me”. Our workshops with the Courts Service protects their privacy and dignity. met with genuine appreciation that the Never underestimate the silent eople can and do recover from the unique stresses they experienced on witness. harmful effects of trauma, whether the job were being recognised. Sharing experienced directly or indirectly personal reactions to painful exposures in If you have been affected by any of the issues (throughP hearing or reading evidence). the courts ‘normalised’ them and created raised in this article, you can find support What enables this to happen is being able solidarity between staff members. Senior through LegalMind. LegalMind is an to acknowledge what has happened, and staff members proved to be an invaluable independent and confidential mental-health how distressing it has been for them. When resource for junior staff. They freely shared support available to solicitors and their people feel heard and experience the support coping strategies that they had refined over dependants, 24 hours a day, and can be contacted of colleagues and friends, they can make many years. Building their resilience was as at 1800 814 177. Find out more on www. sense of what has happened, feel compassion important as debriefing. lawsociety.ie/legalmind. 24 PROFILE June 2021 Law Society Gazette gazette.ie

IMMIGRANT SONG

ALL PICS: CIAN REDMOND Cristina Stamatescu speaks to Mary Hallissey about the challenges of working as an Irish solicitor from Romania, dealing with aggressive clients, and the loneliness of the long-distance sole practitioner

MARY HALLISSEY IS A JOURNALIST WITH THE LAW SOCIETY GAZETTE gazette.ie Law Society Gazette June 2021 PROFILE 25

omanian-born, Irish-trained solicitor Cristina in immigration law, she sometimes has to deal Stamatescu has worked hard on her self- with a backlash after failed applications. In esteem. Being the first Romanian lawyer order to continue doing the work, and to help ever to qualify as a solicitor in Ireland her cope with the verbal abuse she has been (in March 2014) has not been without subjected to, Cristina needed to attend regular significant challenges. therapy sessions. She says that the counselling While Cristina often receives only worked because she attended weekly positive and motivating meetings and diligently did her ‘homework’. R feedback for her work “I took this as a challenge. I worked very 26 PROFILE June 2021 Law Society Gazette gazette.ie

I’VE LEARNT TO BE ABLE TO SAY, ‘I’M FROM ROMANIA!’ WITH PRIDE, BUT IT’S BEEN A JOURNEY OF TEACHING MYSELF TO ACCEPT ME AS I AM, AND NOT TO ALLOW OTHERS TO PUT ME DOWN BASED ON THEIR DISCRIMINATORY APPREHENSIONS

hard on getting outside my comfort zone, initially advised her “in good faith” not to disrespected her, but she has learned to trusting my therapist, and believing in the disclose her Romanian origins. confront that and say ‘please don’t speak to work I was doing,” she explains. Cristina says “That’s what I experienced, in my first me like that’, or ‘I will not allow you to treat that the rewards are priceless. few weeks and months in Ireland,” she me like this (anymore)’.” “I am still in contact with this amazing recalls. “It’s not an issue that I have, but spiritual mother of mine, and am forever it’s the reaction of people when I say I’m Communication breakdown grateful to her for believing in me and from Romania. There are so many good Cristina has also had to halt consultations bringing me on the correct path to the best Romanians in Ireland and all over the world, with translators when it was evident that her version of myself,” she says. but people don’t get to know them,” she words were not being conveyed correctly points out. to clients. Some translators have become How many more times “I’ve learnt to be able to say, ‘I’m from aggressive, rude, abusive and defensive when The disrespect that Cristina experienced was Romania!’ with pride, but it’s been a journey any such interjection has been made. usually upfront, but sometimes unspoken, of teaching myself to accept me as I am, and “It is difficult, as all of this happens in and generally related to her Romanian not to allow others to put me down based on the presence of the client, who often does heritage. their discriminatory apprehensions.” not fully understand what is happening,” Her nationality isn’t immediately obvious Family members, friends, acquaintances, Cristina explains. She has often been from her accent, and some acquaintances clients, and even translators have, at times, brought to tears at the treatment. In one case, neighbouring office colleagues came to her aid after an onslaught from a highly aggressive translator.

ristina has security in the building of her office to protect her and the staff in her Smithfield, Dublin 7, Cpremises. “We are front-liners, but many lawyers will not wish, or cannot afford, to show their vulnerability, as the nature of the job obliges us to be strong,” Cristina says. “I’ve learned that incidents like these are part of the job. I’ve done the work on myself to be able to deal with these situations. It’s tough dealing with abusive clients and not a lot of people talk about this. For me, it’s part of my life and I’ve learned to deal with it. It’s also a cultural difference. “It is very hard, when working with a lot of people from all over the world, to be a female young person telling someone they have to get certain documents or proofs, in gazette.ie June 2021 Law Society Gazette PROFILE 27

IN ROMANIA, I FELT I HAD DONE EVERYTHING I COULD HAVE, PROFESSIONALLY, AND I WASN’T HAPPY – SOMETHING WAS MISSING. SO, I PACKED UP MY LIFE order to strengthen their case. Or giving arguable claim. But sometimes it’s out of Despite all of this, Cristina has a strong clients legal advice that they may prefer my hands. connection with both the Romanian not to hear or pursue, or to tell them that “I take cases I believe in, on the premise Embassy and the Romanian community in they don’t have a case, or to demand from that the client is honest with me and gives Ireland. a translator to properly translate what you me all the information. I always emphasise, Most of her work comes through word-of- are saying. It’s tough as a female to deal with and strongly advise how important it is, that mouth referrals. She has represented clients people with different values and cultures – to the client is providing me with the truth, of all nationalities, successfully, and at all be the boss, to be in charge.” and through me, the different departments jurisdiction levels, including two successful where the application is processed, or the cases that came before the European Court The battle of evermore court. of Justice: Eugen Bogatu v Department Cristina often hears ‘amazing’ background “I don’t think we can change people or of Social Protection and Neculai Tarola v stories in her immigration law client change the world, but it’s a battle within Department of Social Protection. consultations, which are not then ourselves to be ready and prepared in followed through with the required ourselves to deal with unpleasant and round half of Cristina’s work support documents. “I have noticed a challenging things.” is in international protection, misunderstanding of our solicitor role, immigration, human rights law and where a client engages legal services and Achilles last stand judicialA review, with many cases involving believes that’s all that is required at their “I have Romanian clients who say: ‘I’m just EU law and constitutionality challenges, end, with no need to do anything else and no coming to you for a consultation – I need children’s rights and vulnerable people’s need to provide up-to-date instructions, or advice about this or that. But I’m going to rights. even to attend court. go to an Irish solicitor’. And I tell them, ‘I It can be arduous, with often a four or “As a result, the application is likely to fail, am an Irish solicitor!’ I always get the same even five-year delay between taking on a case and you get an upset client that might take a reply, ‘But you know what I mean, one of and her fees being discharged. Sometimes personal vendetta against you as the lawyer theirs’.” there is lost contact, with clients leaving the and express such grudges by emails, phones, New clients have even gestured to a male State during the processing of their case, texts, social media, unfounded complaints, member of Cristina’s support staff and said: and Cristina is left unpaid, despite extensive and so on. We have to learn to deal with ‘I want an appointment with him!’ work on their files. such occasional aggression. “I can’t put on a moustache and start Cristina came to Ireland in 2008, just “I can deal with what’s in front of me. I wearing male clothes,” Cristina laughs. before the financial crash. She was in her take cases based on what is presented to me “It’s absolutely not from everyone, or the early 20s, a law graduate who came top of and whether I believe that clients have an majority, but it happens.” her class, and a fully qualified lawyer under 28 PROFILE June 2021 Law Society Gazette gazette.ie

Romania’s civil-law system, which has no case law and no precedents. In Romania, Cristina once considered a career as a journalist. She produced and presented a weekly radio show about accomplished managers and a TV discussion programme on legal developments. She says, however, that she never felt ‘at home’ in Romania, but instantly so in Ireland, where she discovered a calmer way of living: “I found peace the minute I came to Ireland, the minute I stepped out of the airport. There’s a calmness and a silence, even the weather is more peaceful. “In Romania, I felt I had done everything I could have, professionally, and I wasn’t happy – something was missing. So, I packed up my life.”

Over the hills and far away to move away from her roots, but her gut At the onset of the pandemic, Cristina So why Ireland, rather than any other EU instinct prompted her to push ahead. attended High Court hearings remotely country? Now married to an Irishman (Derek, while breastfeeding her baby of a couple “First of all, it was an English-speaking whom she met at a speed-dating lunch) with of weeks. “We just had to adapt. What I country. Secondly, it was not too far and not whom she has a 15-month-old daughter, thought was going to be the beginning of my too close,” Cristina explains. “Ultimately, it Cristina realises the enormity of her decision maternity leave turned into more than the was a choice between Ireland and England.” on her family to migrate. normal day of work. We survived. I can work “I’m terrified at the thought that our at night. Also, when the baby is sleeping hat swung the decision towards daughter might choose to do the same,” she during the day, I can also write my letters and Dublin was a live webcam at that says wryly. do consultations. I thought sole practice was time on O’Connell Street, which tough before I had the baby. Now it is really WCristina watched from afar with fascination. When the levee breaks tough!” “That webcam was my first experience and Cristina is also conscious of lacking the deep knowledge of Ireland. It was the ‘life’ part, roots and network that come from living and ristina must fit a demanding work that you don’t read in a magazine,” she says. working in one’s own country. She is upfront schedule in between the non-stop “That, and a YouTube video with images of about the enormous challenge of running needs of a toddler running around a sunny Ireland and U2’s Beautiful Day as her own practice, while having no childcare Cthe house. “How many times I wished I had soundtrack!” due to the closure of creches and no family a job where I could call in sick if I needed to! As an only child, it was tough for her support nearby. I don’t have that option. I never had it, and I don’t see how any person who runs their own business, in terms of a small or medium-sized firm, has that option,” she says. SLICE OF LIFE “No matter how much you are told it’s Biggest influence? Favourite getaway? going to be tough, I don’t think anyone can n My counsellor, as it feels that my spiritual n A beach holiday is ideal for me. Cocktails by actually understand it, or pre-empt how and emotional side have been brought back to the beach, in the sun! I also love Curracloe tough it’s going to be. I’m not pulling the life. I have a chance at living while enjoying all Beach in Wexford, and the west of Ireland where foreign card, but not having family support the good in my life – accepting myself without we used to travel often. changes the whole dynamic of living.” judgment. Favourite band? Your time is gonna come Favourite book? n Led Zeppelin. Cristina ended up in sole practice eight n Of Mice and Men, by John Steinbeck – years ago because she found it difficult to “Tell me about the rabbits, George”. Current box set? get reasonable employment, despite her n Schitt’s Creek. impressive qualifications. She also had to Favourite film? study for her Law Society Qualified Lawyers n The Silence of the Lambs – I discovered Cats or dogs? Transfer Test, which she took over a period my love for philosophy and Marcus Aurelius n Dogs! I adored a German Shepherd I had from of three years, and was admitted to the Roll because of it. puppyhood, which was my childhood friend. of Solicitors four-and-a-half years after her arrival in Ireland. gazette.ie Law Society Gazette June 2021 PROFILE 29

YOU GET AN UPSET CLIENT THAT MIGHT TAKE A PERSONAL VENDETTA AGAINST YOU AS THE LAWYER, AND EXPRESS SUCH GRUDGES BY EMAILS, PHONES, TEXTS, SOCIAL MEDIA, UNFOUNDED COMPLAINTS, AND SO ON

“When I came to Ireland in 2008, I still parents, solved the question of how to get people are coming into the country. Also, needed a work permit, so I ended up register- insurance to set up her own business, and pay with people staying at home, and not getting ing as self-employed, as Romania was a part for her first practising certificate. into accidents, little new business has come in member of the EU at the time, joining fully “I felt that I could do it. It was one of those in terms of personal-injury work. “In a way, in 2012.” times where I had to make the call. There that’s great, because people don’t need a lawyer She gravitated towards immigration, was no easy way. My gut told me ‘do this’. It anymore because they don’t have problems. I asylum, human rights, EU law, and personal turned out to be the right thing to do.” don’t know how I will be in a year or two, based injury. As a Romanian-born lawyer with an on the work that’s coming in,” Cristina reflects. Irish qualification, she had a niche appeal and t’s hard, hard work to make a living, Though she has scaled back the size of her a steady stream of inquiries. especially waiting between three and five office, she is proud to be still in business, and It was tough, however, to find an insurer years for payment in most of the cases she has great hopes of getting back to the busy to take on a newly qualified sole practitioner. takes.I And since the pandemic, business has times, pre-COVID – and even expanding one A lot of hard work, plus a loan from her very much decreased, in part because fewer day in the future. 30 FAMILY LAW PRACTICE June 2021 Law Society Gazette gazette.ie

STRESS

TESTDealing with complex family-law situations without adequate support puts family- law practitioners at a higher risk of poor emotional, psychological and physical wellbeing. Caroline Kinneen and Sharon Lambert investigate

CAROLINE KINNEEN IS A TRAINEE EDUCATIONAL AND CHILD PSYCHOLOGIST AT UNIVERSITY COLLEGE CORK, AND DR SHARON LAMBERT IS CO-DIRECTOR OF THE MA PROGRAMME IN APPLIED PSYCHOLOGY AT UNIVERSITY COLLEGE CORK

AT A GLANCE n Research at University College Cork has looked at the impact of psychological stress on family-law practitioners n The practitioners reported a lack of support structures in place to help them n Additionally, they noted that child-care cases were particularly distressing, leading to emotional exhaustion and ruminating about cases outside of work hours gazette.ie Law Society Gazette June 2021 FAMILY LAW PRACTICE 31

STRESS TEST PIC: ALAMY

n a follow-up to the Gazette’s ‘Crash and burn’ article in the professionals who support them – are becoming more 2018, research completed at University College Cork’s apparent, and the need for appropriate support for all School of Applied Psychology looked at the impact of parties is becoming more evident. psychological stress on family-law practitioners. The role of a family-law practitioner can be With the ongoing pandemic and lockdown restrictions, misconstrued as simply working with marital breakdowns more families in vulnerable situations are being left (Weaver, 2013). In reality, family law focuses on many in precarious situations. The mental-health systemic and complex relationships, hosting many legal I implications for these families – and, in turn, issues, including child visitation and support, child abuse 32 FAMILY LAW PRACTICE June 2021 Law Society Gazette gazette.ie PIC: SHUTTERSTOCK

THE EMOTIONAL EXHAUSTION BROUGHT ABOUT BY THE ROLE OF BEING A FAMILY-LAW PRACTITIONER EMERGED AS A CONSEQUENCE OF DIFFICULT CASES IN THIS RESEARCH

and neglect, and criminal law (Fines, 2012). learn how to manage client emotions and When asked about the impact, they spoke Dealing with these complex situations expectations, in addition to having a large about how draining and stressful the work without adequate support has the potential amount of legal knowledge about the family- can be, and how this takes an emotional for family-law practitioners to be more at court system (Fines & Madsen, 2007; Parker, toll. In addition, solicitors described the risk of poor emotional, psychological, and 2007). Additionally, levels of secondary feelings of guilt surrounding their clients’ physical wellbeing (Morgillo, 2015). traumatic stress and burnout are very high circumstances, and found it difficult to stop in family-law practitioners due to a lack of thinking about cases outside of work. rofessionals in the ‘helping supervision, training of client’s emotions and The findings of this study were the first professions’ are trained in secondary expectations, and working long hours. attempt to understand family-law practitioners’ traumatic stress and are aware of experiences in Ireland. The study was not howP their clients’ traumatic situations can The Irish context? exclusive to legal professionals, with the have an impact on their own psychological In 2018, the IDEA Project looked at inclusion of guardians and social workers. The wellbeing. On the other hand, solicitors are practitioners working in child-care aim of the study that followed was to look at trained to see their client’s situation through proceedings across five countries. A total of a focused population through a psychological the eyes of the law (Silver et al, 2015). What 66 Irish practitioners, consisting of solicitors, lens in order to explore the experiences of does this mean for family-law practitioners, barristers, guardians, and social workers family-law practitioners in Ireland. whose role is spread over both a helping were interviewed. No training, support, or profession and the legal profession? guidance relating to the management of the In-depth understanding What the research is revealing is that negative impact experienced while working For this research project, eight family-law family-law practitioners need to embed the on child-care cases were reported in 79% of practitioners were interviewed to gain an role of a counsellor within their role and the participants. in-depth understanding of their experiences gazette.ie Law Society Gazette June 2021 FAMILY LAW PRACTICE 33

FOR THIS RESEARCH PROJECT, EIGHT FAMILY- LAW PRACTITIONERS WERE INTERVIEWED TO GAIN AN IN-DEPTH UNDERSTANDING OF THEIR EXPERIENCES IN IRELAND. THE INTERVIEWS WERE ANALYSED USING THEMATIC ANALYSIS TO IDENTIFY EMERGENT THEMES ABOUT THEIR EXPERIENCES in Ireland. The interviews were analysed clients’ emotions, adding to the intensity of When asked about additional training using thematic analysis to identify emergent working in the legal profession. This can that should be given to help with client themes about the experiences of participants lead to emotional exhaustion, which was management, one participant detailed and what they argued would help family- described as follows: “Where sometimes you how family-law training could be adapted law practitioners in future. Ethical approval kind of feel like you’re just going to … you at undergraduate level to benefit both was granted by the School of Applied just need to burst into tears, to just say, right practitioners and clients: “My personal view Psychology’s Ethics Committee at UCC I need to get this out of my system, it’s too on family law is that it needs to be taught before recruitment began. much, you need to walk away from it.” differently from a very early stage … The analysis of the interviews resulted I go back to undergraduate level and in five main themes: ‘A day in the life’, Emotional exhaustion how the module of family law is taught. And ‘Common characteristics and attributes’, The emotional exhaustion experienced by I think it needs to be taught in a different ‘Knock-on impacts’, ‘Confronting the some family-law practitioners, allied with way. Because I think, and again this is challenge’, and ‘Concerns surrounding the lack of training around how to handle just my personal view, to achieve the best professional training’. this exhaustion, can lead to rumination outcomes from families or anybody in a about work. family-law situation, I think you need to articipants spoke about the intensity What is interesting about the following have a ‘resolution focus’, and a ‘resolution of their roles and how they can quote is that the participant had sought focus’ that sits outside of the courts system, feel that they perform multiple out professional supervision, and was able ideally.” professionalP roles when working with to articulate the experience and employ clients: “Family law is intense. There isn’t strategies to help process the exhaustion: Lack of support structures any real quick fix … so I think it is intense, “You know, these thoughts creep into your The practitioners in the study reported a it is difficult at times, and there are times mind whenever I felt that my home life, or lack of support structures in place to help you do feel like the parish priest or, you my thoughts, or my time away from work them. Additionally, they noted that child-care know, like a psychologist and a professional was being weighed upon, or leaned upon, cases were particularly distressing, leading to and a solicitor. But again, the main by something at work. Then I’ll try to figure emotional exhaustion and ruminating about important thing, I think, is to know that out why is this happening to me. And I’ll cases outside of work hours. these people are human too.” also look to my supervisor, to say what am However, with this experience of I doing, what’s happening here, that this is dditionally, participants felt a need feeling like they are engaged in multiple bearing down on me.” for counselling, debriefing training, professional roles comes the awareness of The lack of training surrounding detaching and resilience, and how challenging the experiences of their client management was evident in the mindfulness.A Furthermore, the practitioners clients can be: “The courts can be very interviews throughout the research project. in this study spoke about a need for difficult. You can be working for a very Participants commented on how they professional supervision, mentoring, and long time towards something, and your learned through experience as time went education focusing on the personal impact of client might lose, and you have to deal on: “I certainly didn’t receive any education working in this field. Many of these findings with that. You have to deal with what about that – client management, trauma had been reported in the Gazette’s ‘Crash and happens to the clients in court. You have management, anything like that. It’s just burn’ article. to deal with the anger, with the frustration, something you kinda teach yourself as you What this study additionally found was with the crying.” go through the experience in dealing with that family-law practitioners reported Family-law practitioners can take on their people.” that they built resilience by employing 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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Law Society of Ireland DOTTED LINE *(IRISH MAGAZINE AWARDS 2018) Are ‘comic book contracts’ the user-friendly future? Feel the pages. Smell the ink. 3. You can’t beat this!

Your multi-award-winning magazine of record, the Law Society Gazette, delivers the legal news to 14,000 subscribers a month – that’s a total of 42,000 readers. Condensed Don’t forget, the interactive Gazette is available into a digest online, with lots of cool features like links to Gazette.ie now delivers a weekly briefing of music, videos, legislation and case law. the top legal news stories, as published on You can also access the Gazette archive and Gazette.ie, to Law Society members and sub- indices right back to 1997. scribers via email. gazette.ie Law Society Gazette June 2021 FAMILY LAW PRACTICE 35

professional and mental barriers of their own, PIC: SHUTTERSTOCK over time. Noteworthy was the admission that just one participant spoke about seeking professional supervision to help with secondary traumatic stress and burnout. For both practitioners’ and clients’ wellbeing, training in stress and coping mechanisms, as well as education about the mental implications of adopting a ‘counsellor’ role, is regarded as crucial. This could be done via the introduction of routine Giving you the power of three supervision.

Job satisfaction Supervision that aids the development of emotional wellbeing tools may support job training in development of resilience and through some of the most traumatic moments satisfaction, which would combat compassion coping mechanisms. Debriefing during of their lives. fatigue and burnout. Kriti et al (2012), found traumatic cases would help support family-law With the impending consequences of that job satisfaction in the legal profession practitioners in managing stress and avoiding COVID-19 lockdowns around the corner can be negatively influenced by emotional burnout. and the well-documented sharp increases exhaustion, depersonalisation, and work Despite the shortfalls in support, family- in domestic-violence cases, it is time for overload. Low job satisfaction can lead to law practitioners were insightful in relation targeted interventions, training and support compassion fatigue and burnout (Norton et al, to supporting clients, despite the lack of for family-law practitioners, allowing these 2016; Pasyk, 2019). professional support and training. Their professionals to do what they do best – Platsidou and Salman (2012) found that self-assuredness helps them support clients support their clients. emotional intelligence played a crucial role in protecting lawyers from burnout and job dissatisfaction. The emotional exhaustion brought about by the role of being a family- LOOK IT UP law practitioner emerged as a consequence of LITERATURE: Law Society Gazette (Aug/Sept 2018, difficult cases in this research. n Fines, BG (2012), ‘Fifty years of family p54). Bearing this is mind, participants spoke law practice – the evolving role of the n Parker, LM (2007), ‘Increasing about the need for change in how family law family law attorney’, Journal of the law students’ effectiveness when is taught – and the current dearth of training, American Academy of Matrimonial representing traumatised clients: a case which emerged as a predominant theme. Lawyers (vol 24, pp395-403) study of the Katharine and George On the topic of ‘Concerns surrounding n Fines, BG and Madsen, C (2007), Alexander Community Law Centre’, professional training’, participants referred ‘Caring too little, caring too much: Georgetown Immigration Law Journal to the need for more specialised training competence and the family law (vol 21, pp163-170) for family-law practitioners and the attorney’, UMKC Law Review (vol 75, n Pasyk, VS (2019), The Billable Hour importance of ensuring that training at both pp965-968) and its Impact on Lawyer Subjective undergraduate and postgraduate level was n Kriti, PA, Shekhar, R and Jayashree, Wellbeing and Burnout (unpublished more resolution-focused and separate to the ND (2012), ‘Occupational stress and master’s thesis), University of Calgary, courts system. burnout as predictors of job satisfaction Calgary, AB The lack of training in client management amongst lawyers in District Sangli’, n Platsidou, M and Salaman, L (2012), and trauma was a concern for participants, National Journal of Medical Research ‘The role of emotional intelligence in and an area in which they felt they needed (vol 2, pp141-144) predicting burnout and job satisfaction greater support. n Morgillo, L (2015), ‘Do not make their of Greek lawyers’, IJLPHL (vol 1(1), trauma your trauma: coping with pp13-22) Training crucial burnout as a family law attorney’, Family n Silver, MA, Portnoy, S and Peters, An important outcome of this study is the Court Review (vol 53(3), pp456-473) JK (2015), ‘Stress, burnout, vicarious expressed need for better training and support n Norton, L, Johnson, J and Woods, trauma, and other emotional realities for family-law practitioners. G (2016), ‘Burnout and compassion in the lawyer/client relationship’, Touro O’Callaghan (2018) concluded that support fatigue: what lawyers need to know’, Law Review (vol 19(4), pp847-874) in the form of interdisciplinary structures UMKC Law Review (vol 84(4), pp987- n Weaver, JD (2013), ‘Grandma in can provide a safe and confidential space for 1002) the White House: legal support for practitioners to discuss and process difficult n O’Callaghan, E, Burns, K and intergenerational caregiving’, Seton Hall cases, and the emotional impact of them. O’Mahony, C (2018), ‘Crash and burn’, Law Review (vol 43(1), pp2-74) Furthermore, practitioners suggested 36 MENTAL HEALTH LAW June 2021 Law Society Gazette gazette.ie

AT A GLANCE n A widely publicised December 2020 judgment focused on the case of a mentally ill man seeking transfer from a remand prison to the Central Mental Hospital n The applicant sought an order of habeas corpus for failure to provide appropriate medical treatment n The court ruled that if ‘egregious’ cases might still reach the standard for unlawful detention, it had not been met in this case, mainly because SM continued to receive treatment by prison in-reach BRIDGING THE GAP If a client in custody becomes mentally ill, has no next of kin, and requires urgent care, how should the solicitor proceed? John Feaheny and Seán Smith cross that bridge

JOHN FEAHENY IS PRINCIPAL OF JOHN FEAHENY AND CO, SOLICITORS, AND DR SEÁN SMITH IS A TRAINEE SOLICITOR

n December 2020, a widely publicised High client. Yet what other steps can be taken, and Court case – SM v Governor of Cloverhill what guidance exists for the profession? Prison – brought to light the case of a Answers to these questions are not at mentally-ill man seeking transfer from a the practitioner’s fingertips. Yet to begin to remand prison to the Central Mental answer them, the extent of the crisis needs to Hospital (CMH) in Dundrum. With six be laid out. people ahead of him on the waiting list, he failed in his bid. Song for everyone The result, which again highlighted the It is no exaggeration to say that the SM case lack of beds in the CMH, raises rather underscores a wider crisis in our health and than relieves questions for solicitors penal systems. The first problem is that working in this area. Can courts bring Irish prisons are inadequately resourced relief to applicants in these cases? In SM, when it comes to caring for mentally unwell for instance, the result suggests that court prisoners. The number of people presenting I outings may not be the best way of helping a in this group can be startling: in 2019, a total gazette.ie Law Society Gazette June 2021 MENTAL HEALTH LAW 37 PIC: SHUTTERSTOCK

RESULTS LIKE THE OUTCOME IN SM KEEP SOLICITORS IN THEIR ROLE AS ACTIVISTS, IN THE FACE OF AN UNACCEPTABLE RESOURCES PROBLEM THAT THE COURTS ARE ESSENTIALLY POWERLESS TO RESOLVE of 887 new referrals across 11 prisons were The second, related, issue is that the A 2019 report by the HSE disclosed made to prison in-reach, mental-health Central Mental Hospital – home to the that Ireland has only two secure forensic teams. country’s only forensic mental-health service beds per 100,000 population, while most After a visit to Cloverhill prison’s D2 – currently has no room to relieve this modern European states have in excess of Wing (the country’s largest unit for holding inadequacy. A very insightful perspective on ten. Outside the CMH, the mentally ill in mentally-ill prisoners), the Council of this came from the latest report published by custody are cared for by in-reach teams who, Europe’s Committee for the Prevention prison chaplains for Cloverhill Prison, who it must be said, do the best they can with of Torture reported that the unit was highlighted that it “takes weeks or months limited resources. “overflowing, with seven prisoners having to to divert a [mentally-ill] man to his local sleep on mattresses on the floor”. According hospital or to the CMH” once imprisoned. Rusty cage to the report, which was published in The reasons for this are unsurprising. The Given these facts, criminal solicitors may November 2020, medical staff confirmed CMH only has 102 beds – a number that more frequently have to resolve capacity this was a “regular feature for the landing”. does not compare favourably internationally. issues in the future. Yet the legal landscape is 38 MENTAL HEALTH LAW June 2021 Law Society Gazette gazette.ie

also in flux. With the enactment of the Assisted PIC: SHUTTERSTOCK recommendations for appropriate care in Decision-Making (Capacity) Act in 2015, the prison; and psychiatric reports between court law has properly evolved from a black-and- appearances and beyond. The necessity of white view of capacity to one that recognises a a fitness-to-plead hearing may then arise, spectrum – although the bulk of this act has yet although we cannot, in this brief article, to be commenced. explore that particular avenue. Still, the degrees of capacity that it recognises fully translate into the custodial In this river context. On one hand, some clients in custody In urgent cases, these steps may not engage with solicitors from prison, even if be enough. If a remand warrant is in diagnosed of unsound mind. On the other, place, the possibility of bail may then be some deteriorate to a level where contact with recommended. The problem here is that, their solicitors stops entirely. We should add, if a court is minded to grant bail, it is our however, that for this group, contact often just The chaplains of Cloverhill Prison express experience that, depending on the level becomes indirect because a phone call or email it well: “Many of the [detainees] grew up of incapacity, it will usually expect some may still issue from prison health services and, in the care system, spent their lives living arrangements for the prisoner’s psychiatric when this occurs, solicitors on record may in homeless accommodation or psychiatric care in the community to be in place. require guidance on their options. hospitals, and have no appropriate support in There is currently no ad hoc guidance addressing their social needs.” et the viability of this option is much for solicitors called to assist the mentally ill Therefore, in cases where the mentally-ill in question. Firstly, if a client is in custody, so practitioners must start with person in custody is homeless and without homeless and without family, this general guides. The Guide to Good Professional any next of kin, the solicitor on record may requirementY puts an enormous amount of Conduct for Solicitors is an especially important be that person’s only advocate outside the pressure on the solicitor to find a therapeutic resource, but it still only offers broad prin- prison walls. If that prisoner’s health declines placement. More pointedly, release into ciples for dealing with mentally unwell clients. urgently, prison nurses and doctors may have the community may not actually do much nobody else to call. good. As the Council of Europe committee few Law Society practice notes add In the absence of specific guidance, worryingly reported: “Many of the persons particular guidance: for example, the charting a course if that call comes means coming to [the D2 Wing] could be granted December 1998 note on advising that solicitors rely on a mixture of existing bail by the courts but, because of their clientsA of unsound mind suggests taking professional principles, legal knowledge homeless status, they are excluded from “reasonable steps to ensure the client’s interests and, it must be said, their own creativity as Health Service Executive (HSE) community are protected”. The note then suggests contact conscientious citizens. mental-health team services, so they are left with relatives, medical professionals, and the It goes without saying that the solicitor to languish in prison.” Wards of Court office – although it ominously should always attempt to take instructions Solicitors advising in these cases are also concludes that the “solicitor’s duties are at an as a first step. After all, the detainee’s dealing with an absence in community-care end” once this is done. mental capacity may fluctuate, and he or places. We asked Fr Peter McVerry (whose Just what these ‘reasonable steps’ may she may possess sufficient capacity for some services provide invaluable help to criminal entail, and whether withdrawal is even instructions. Obviously, however, in cases solicitors and their clients) to comment, and ethical for a solicitor in the context of a of significant decline, giving instructions he had this observation: “Prison is a place mentally-ill client in custody, are just two of may be impossible. Added to this is the fact of punishment and is not an appropriate the questions that arise from the 1998 note, that, in the current health emergency, taking environment for mental-health treatment. but there is also a sense that the law has instructions with clients in custody presents However, I think some judges get exasperated moved on considerably since. For example, unique challenges. Of course, family mem- at the lack of community mental-health care pursuant to the Mental Health Acts, legal bers may be able to assist but, as noted, and send people to prison in the belief that representatives are now specifically authorised homeless detainees may often be without they will get better care there.” to act on behalf of clients on Mental Health any worldly moorings. Tribunals, although this is hardly analogous Where instructions are sparse, the most Magic carpet ride to representing a detained person. In another common reflex for criminal practitioners More creative court outings may be the area, some solicitors are not infrequently is to go to court. However, options tend next step, but they are not magic solutions asked to act as guardians ad litem in ward-of- to change depending on urgency and either. Indeed, where a prisoner is serving a court proceedings, and there they take on the prisoner status. In non-urgent cases, and sentence, avenues narrow considerably. role of being a voice of the intended ward. where the prisoner is on remand, we have Take this scenario: a client becomes found that it is best to inform the court of gravely mentally unwell in prison while Time of the preacher trial as soon as possible. For example, if a serving a sentence, but refuses to take Specific guidance is needed, because the client has a pending matter in the Circuit medication. In Ireland, there is currently general guides currently fail to take account Court, it is recommended to have the no possibility of involuntary medication in of the unique characteristics of detainees as matter listed for mention in early course. prison. Therefore, the only option becomes clients. In such cases, the court will routinely make entry into the CMH, which may have a gazette.ie Law Society Gazette June 2021 MENTAL HEALTH LAW 39

IRISH PRISONS ARE INADEQUATELY RESOURCED WHEN IT COMES TO CARING FOR MENTALLY UNWELL PRISONERS. THE NUMBER OF PEOPLE PRESENTING IN THIS GROUP CAN BE STARTLING: IN 2019, A TOTAL OF 887 NEW REFERRALS ACROSS 11 PRISONS WERE MADE TO PRISON IN-REACH, MENTAL-HEALTH TEAMS lengthy waiting list. Yet, can a court order executive to expend resources or to interfere this specific relief? with the operation of hospitals.” Affirming LOOK IT UP The High Court confronted that poss- this decision on 1 April 2021, the President CASES: ibility in the SM case, although the facts of the Court of Appeal remarked that this n SM v Governor of Cloverhill Prison were slightly different to our scenario above. was a “resources case”, which was not [2020] IEHC 639; [2021] IECA 102 There, the applicant brought a challenge properly brought under article 40.4. under article 40.4 of the Constitution, LEGISLATION: seeking an order of habeas corpus for failure his brings us to our final point. n Assisted Decision-Making (Capacity) to provide appropriate medical treatment Whether intended or not, results Act 2015 and transfer to the CMH. like the outcome in SM keep n Mental Health Acts SM’s personal history shared many of solicitorsT in their role as activists, in the the characteristics of the prison population face of an unacceptable resources problem PRACTICE NOTES: identified above. Initially remanded to D2 that the courts are essentially powerless to n ‘Clients of unsound mind’, Law Society wing on a charge of murder, SM was a young resolve. Part of the job of assisting clients Gazette, December 1998, p33 man with a history of psychiatric illness and now entails exerting pressure on those n ‘Legal representation at the Mental homelessness. This did not move the court, branches of Government with power to Health Commission, guidelines for however. Refusing relief, the court accepted remedy acute situations. For example, we solicitors – second edition’ (November that if “egregious” cases might still reach the have found persistent correspondence with 2020) standard for unlawful detention, it had not relevant Government departments and been met in this case, mainly because SM national health authorities to be equally, LITERATURE: continued to receive treatment by prison in- if not more beneficial, to some clients’ n Cloverhill Chaplaincy Service Annual reach (although there was evidence this was needs – a reminder that raising voices with Report 2019 insufficient). Government can sometimes be more useful n European Committee for the than voicing arguments in court. Prevention of Torture and Inhuman or Spoonful Both in terms of resources and the legal Degrading Treatment or Punishment SM is a consequential judgment, which landscape, we appreciate that positive (2020), Report to the Government of we cannot fully analyse here. However, a developments are afoot in some areas. The Ireland (on the visit to Ireland carried relevant extract of the court’s judgment is expected opening of the new National out by the CPT from 23 September to worth quoting. Forensic Mental Health Service Hospital 4 October 2019) After finding that an order of the kind (with 170 beds) in Portrane offers some hope n Guide to Good Professional Conduct sought would permit SM to “leapfrog” – although this has apparently been delayed. for Solicitors (3rd edition) those ahead of him in the queue, Ms Justice The Minister for Justice has also just n HSE Mental Health Service (2019), Hyland warned that it might also “have the established a new taskforce to examine Delivering Specialist Mental Health effect of putting pressure on the executive of the mental-health and addiction needs Services 2019 expending resources to increase the number of prisoners, both during and after their n Irish Penal Reform Trust (2020), of beds in the CMH”. This the court was detention. Nevertheless, when it comes to Progress in the Penal System: not prepared to do: “It is inappropriate solicitors representing mentally-ill clients in Assessing Progress During a Pandemic that courts make orders that require, either custody, there remains a measurable gap in n Wheatfield Chaplain’s Report 2019 directly or, as in this case, indirectly, the guidance. 40 EXAMINERSHIP June 2021 Law Society Gazette gazette.ie

FINAL EXAMINATION As the pandemic fallout continues, examinership can be an AT A GLANCE attractive option for insolvent companies, with the potential n Examinership and the proposed to offer widespread relief to many businesses. summary rescue process could be Graham P Kenny locks and loads valuable tools in helping insolvent businesses post-COVID n Till now, a relaxed approach GRAHAM P KENNY IS PRINCIPAL OF KENNY SOLICITORS, has existed as regards the FITZWILLIAM SQUARE, DUBLIN 2 enforcement of debt – but change is on the way s the pandemic continues to devastate large and small businesses alike, n Legislation provides for far- solicitors across the country are considering the role of examinership and reaching powers, which permit the eagerly awaited summary rescue process in order to assess how they the examiner to recommend the may help their clients’ businesses to survive. writing-down of creditors’ debts While many businesses are limping along on Government supports, within this scheme attention is now turning to what will happen when ‘normality’ A returns. For now, banks, the Revenue Commissioners, and gazette.ie Law Society Gazette June 2021 EXAMINERSHIP 41 PIC: ALAMY

OF COURSE, SUCH DRACONIAN POWERS COME WITH A SERIES OF CHECKS IN ORDER TO ENSURE THAT CREDITORS ARE NOT BEING ‘UNFAIRLY PREJUDICED’ landlords have displayed a relaxed approach the Persian Gulf, the business was in peril. Basic verdict to the enforcement of debt, but it is only a With an eyewatering £72 million deficit in Examinership was an entirely new process matter of time before this forbearance ends its finances, the Goodman group looked whereby a company could apply to the and more formal restructuring is required. certain to go under. court for protection from its creditors while However, the Fianna Fáil government it attempted to restructure its debt. The Primal impact considered that the strategic importance of overriding rationale of such a process was The history of examinership reads like the the Goodman group to the Irish economy not designed to help shareholders whose script from an unlikely Hollywood thriller. was such that it would have to be saved. On investment had proved unsuccessful, but On 2 August 1990, rogue dictator Saddam 24 August, Taoiseach Charles Haughey – rather to seek to save enterprise and jobs Hussein invaded Kuwait, setting in motion during what would be his final term in office (see Re Traffic Group Ltd). a series of events that would dramatically – recalled the Dáil from its summer recess. The effects of court protection brought change Irish company law. By the late 1980s, The Companies (Amendment) Act 1990 was in by the 1990 act were dramatic, and will millionaire beef baron Larry Goodman passed, and the examinership procedure was appeal to many companies suffering the controlled over 40% of the Irish beef brought into law. The rest, as they say, is stresses of the pandemic today. For example, market. However, due to the hostilities in history. for as long as the company is under the 42 EXAMINERSHIP June 2021 Law Society Gazette gazette.ie

protection of the court: This is often a hugely attractive feature for exception is of particular relevance to • No proceedings for the winding-up of the clients who are considering taking the brave companies struggling during the pandemic. company may be commenced, leap into examinership, but who are reluctant Section 544 prohibits the reduction in the • No receiver can be appointed to the to relinquish control of their company. level of rent due to a landlord under a lease company, The examiner is charged with conducting once the scheme has been approved (unless, • No action can be taken by a creditor to a full examination into the affairs of the of course, the landlord consents during the enforce its security (for example, a bank company and reporting to the court. Once process). trying to enforce a mortgage), and such an examination has been completed, • Any new proceedings that a party wishes the examiner will then move on to formulate here is, therefore, a very important to bring against the company can only be proposals for what is termed a ‘scheme of distinction between debts owed under brought with the express consent of the arrangement’ under section 534. a lease before and after the company court. wentT into examinership. Historical rent arrears Jagged instinct arising before the presentation of the petition In effect, therefore, section 520 of the This scheme is the blueprint for the for court protection are capable of being Companies Act 2014 places a total embargo on company’s pathway out of debt. The act written down within the scheme. This may be creditors acting against the company while it is provides for far-reaching powers, which of huge significance to those companies whose under this protection. Arising from the delays permit the examiner to recommend the outlets were closed during the pandemic, but caused by COVID-19, the period of protection writing-down of creditors’ debts within this who continued to amass rent demands from under the act has been very considerably scheme. Of course, such draconian powers landlords during such time. However, once extended, and now lasts up to 150 days. come with a series of checks in order to the scheme has been approved, the existing ensure that creditors are not being “unfairly rent must be paid and the lease cannot be owever, not all insolvent companies prejudiced”, and the burden of proving this is compromised in this regard. may avail of the court’s protection. placed upon the examiner (see Re McInerney Section 509(2) guides the court Homes Ltd). Sudden edge inH exercising its jurisdiction and requires The court will assess whether a creditor’s It may also be of considerable significance that a company demonstrates that it has a objections amount to unfair prejudice by to struggling companies that the courts have “reasonable prospect of survival … as a going considering how they would likely fare on found that leases can be repudiated under concern”. This requirement is usually achieved liquidation (or receivership, if applicable) and section 537 (see Linen Supply of Ireland Ltd). by the company instructing an accountant to further consider their treatment vis-à-vis other While the court has discretion in this produce what is referred to as an ‘independent creditors and the members. If the examiner’s regard, a company can seek to repudiate a expert’s report’. Such a report will confirm scheme is approved, the court will impose the lease, which in turn will relieve the company that, if the company is given the opportunity harsh reality that there is simply not enough of the obligation to pay further rents. This to restructure its debt, it will have a reasonable money to repay all the company’s debts. As may be of particular significance where a retail prospect of survival. every solicitor who has ever had to negotiate store has a number of outlets, with differing An examiner (who is normally an with a disgruntled creditor knows, such a degrees of footfall arising from the effects of accountant) will then be appointed by the reality is very often difficult to accept, and the the pandemic. court, and the real work begins. In the court process is of immeasurable assistance in The case of Re New Look Retailers (Ireland) normal course, the examiner does not run the this regard. Ltd, however, should serve as a cautionary tale company. The directors continue in their usual There is, however, one notable exception to for any company rushing into examinership role and carry out their executive functions. the compromising of creditor claims. This within the coming months. New Look

DUE TO THE INEVITABLE SURGE OF INSOLVENCIES ARISING FROM THE PANDEMIC, THE GOVERNMENT IS PRESENTLY CONSIDERING ANOTHER FORM OF STREAMLINED EXAMINERSHIP, KNOWN AS THE ‘SUMMARY RESCUE PROCESS’ gazette.ie Law Society Gazette June 2021 EXAMINERSHIP 43

THE CASE OF RE NEW LOOK RETAILERS (IRELAND) LTD, HOWEVER, SHOULD SERVE AS A CAUTIONARY TALE FOR ANY COMPANY RUSHING INTO EXAMINERSHIP WITHIN THE COMING MONTHS sought the protection of the court during is undoubtedly a valid concern, it is worth practitioner, as opposed to the court. the pandemic in August 2020. The company pointing out that the costs of the examinership It remains to be seen how such new proposed the reduction of its rents and the are regularly paid from new investment under legislation might work, and there would repudiation of some of its 27 leases. Four the scheme, and not from the company’s own inevitably be challenges from creditors whose of the landlords expressed the concern that existing reserves. It is certainly arguable that debts would now be written down without the company had sought to “contrive” an creditors, and not the company, bear the brunt the oversight of the court. This new process is examinership for the purpose of reducing its of costs, as their dividend is regularly reduced not envisaged to take over from examinership, long-term liabilities. by such payment. however, and would operate as a separate Mr Justice McDonald said that, while the procedure. company did not have to wait until it reached t is also noteworthy that section 509(7) As the fallout from the pandemic continues “the edge of the precipice”, it should first now permits an application to appoint in the months ahead, examinership is, invoke “an alternative and obvious route an examiner to be taken in the Circuit therefore, still a very attractive option for available to the company and seek to deal Court.I This amendment was made with a view insolvent companies and has the potential to with its landlords – namely negotiation”. The to reducing costs for smaller companies and offer widespread relief to many businesses. judge refused, therefore, to put the company permitting them access to court protection. As into examinership on the basis that the Government supports lift, particularly in the application was premature. hospitality and retail sectors, this is certainly a provision that many solicitors may wish to LOOK IT UP Personal attraction consider with their clients who operate smaller CASES: Another intriguing feature of examinership companies. n Bestseller Retail Ireland Ltd [2010] that will be of interest to many directors IEHC 155 in these times is the position of personal Executive heat n Eylewood Ltd [2010] IEHC 57 guarantees set out in section 550. It is Due to the inevitable surge of insolvencies n Linen Supply of Ireland Ltd [2010] regularly the case that directors have arising from the pandemic, the Government IEHC 28 guaranteed the company’s debt, and have is presently considering another form of n McInerney Homes Ltd [2011] IESC 31 legitimate concerns that they will remain streamlined examinership, known as the n New Look Ireland Ltd [2020] IEHC personally liable for such debt once the ‘summary rescue process’. Small and micro 514 company has exited examinership. enterprises account for the majority of n Solicitors should remember two key points companies in Ireland and support somewhere Traffic Group Ltd [2007] IEHC 445; [2008] 3 IR 253 in this regard. If the debt that is guaranteed in the region of 788,000 jobs, and so the new by a director is written down in a scheme, legislation is eagerly awaited. LEGISLATION: the director will still remain personally liable While no concrete details of this process n Companies (Amendment) Act 1990 for the full amount under their guarantee. have emerged just yet, it is thought that n Companies (Miscellaneous Provisions However, it is critical to point out that the this process would be commenced by (COVID-19) Act 2020 creditor must offer their vote in respect of the directors themselves and would be n Companies Act 2014 (Part 10 – the proposals for a scheme of arrangement to concluded within a shorter period than that Examinerships) such director, or the guarantee will become of examinership. A notable distinction of n Order 53A, Circuit Court Rules unenforceable (see Re Eylewood Ltd). the summary rescue process is that no court n Order 74A, Rules of the Superior One of the repeated criticisms of application would be required, and the new Courts examinership has been its cost. While this process would be overseen by an insolvency 44 ANALYSIS News in depth June 2021 Law Society Gazette gazette.ie SOUND THE ALARM The Law Society has expressed alarm about the possible exclusion of solicitors from the Judicial Appointments Commission. Mary Hallissey reports

MARY HALLISSEY IS A JOURNALIST AT THE LAW SOCIETY GAZETTE

n an address to the Joint Oireachtas Committee on Justice on 18 May, Law ISociety President James Cahill and the director general, Mary Keane, expressed deep concern about the proposed exclusion of the profession from the JAC. The president pointed out that the provision that a practising solicitor be a member had not been retained in the general scheme. “It is critically impor- tant that a representative from each branch of the profession is appointed to the commission,” President Cahill stressed. “After 25 years of faithful service to the Judicial Appoint- ments Advisory Board, we get WE FOUND sent outside the door on the pro- IT QUITE posed JAC?” Mary Keane said. The Society retained substantial EXTRAORDINARY expertise, she continued, hav- ing served on the JAAB since its – WE DON’T LIKE establishment. IT ONE BIT. THE The director general noted that solicitors are subject-matter THINKING BEHIND experts across a broad range of areas and, as the largest branch diversity must include solicitor inclusion. More diversity and THE EXCLUSION of the legal profession, are expert expertise in judicial appoint- inclusion would better reflect WAS NOT users of the courts system. The ments: “Diversity is being in- society. You can have all the profession operates at every level vited to the party, but inclusion diversity you want in terms of EXPLAINED TO of seniority, dealing with every is being asked to dance,” she eligibility, but if people aren’t conceivable matter before the commented. “We’d like to see actually appointed, then diver- THE LAW SOCIETY, law, with first-hand experience more solicitors being asked to sity becomes meaningless. THOUGH A COPY of the impact of the courts sys- dance!” “We’d like diversity and inclu- tem on the public. Of 90 judicial appointments sion, please! And we’d like to OF THE SCHEME “We don’t embrace the reduc- made to the superior courts from see more solicitors and more tion in [JAC] numbers to nine if 2002 (when solicitors became eli- people of different backgrounds WAS RECEIVED. it means that the representatives gible for appointment) to 2016, being ‘asked to dance’ – and [the WE WERE of the practising professions only eight were solicitors. Bench becoming] more reflective are excluded,” Keane said. She Mary Keane added: “Diver- of society. Nowadays, one is no ASTONISHED added that the bid to embrace sity is meaningless without good without the other.” gazette.ie Law Society Gazette June 2021 News in depth ANALYSIS 45

President Cahill told the In its submission, the Society “These substantial responsibili- committee that the JAC’s credi- affirmed its long-held view that it ties surely raise a question as to bility would be greatly enhanced would not be appropriate that the whether the Judicial Council by “a solid start”, adding that AG should have a dual function in nominees are more likely to be the Society was making its third the judicial appointment process – senior, long-standing members submission on the matter, with both at the JAC and at Cabinet. of the judiciary,” the president a number of areas requiring fur- The Law Society has also pre- warned. “If so, their experience ther careful consideration dur- viously cautioned against creat- of legal practice – as court users ing the drafting process. ing a commission that would rather than as members of the The director general told the be top-heavy in terms of senior judiciary – will be at a consider- committee that it was not cor- members of the judiciary at the able remove from their present rect to suggest that there would expense of judicial representa- workday experience.” be equal numbers of legal and tives of the courts of local and lay members sitting on the JAC, limited jurisdiction. Lay members since the JAC proposal was for The scheme of the bill pro- The Law Society welcomed the equal numbers of judicial and vides that: participation of lay members on lay members. “We found it [the • A Judicial Council nomi- the JAC in the manner proposed, exclusion of a solicitor repre- nee will chair the JAC in the Cahill continued. He added that sentative] quite extraordinary absence of the Chief Justice, lay members would mitigate the – we don’t like it one bit,” she • The chair of the Procedures risk of self-replication by judicial AFTER 25 YEARS stated. The thinking behind the Committee will be the Chief members. The judiciary serves exclusion was not explained to Justice, or a Judicial Council all of society, and that should be OF FAITHFUL the Law Society, though a copy nominee determined by the reflected in the process of judi- of the scheme was received, Chief Justice, cial selection, he commented. SERVICE TO THE Keane said. “We were aston- • When the JAC establishes any In the Society’s view, the Pro- JAAB, WE GET ished.” other committee to assist it or cedures Committee could be the Procedures Committee, regarded as the ‘engine room’ SENT OUTSIDE Dual function the chair of any such commit- of the judicial appointments In addition, the scheme of the tee will be the Chief Justice, process. It would be critically THE DOOR ON bill provides that the Attorney or a Judicial Council nomi- important to ensure that suf- THE PROPOSED General would participate in the nee determined by the Chief ficient expertise would be avail- JAC as a non-voting member. Justice. able to the committee to enable JAC? SUPPORTING YOUR CPD DIPLOMA CENTRE NEEDS

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All lectures and workshops are webcast and available to view on playback, allowing participants to catch up on coursework at a time suitable to their own needs. Diploma Centre reserves the right to change the courses that may be offered and course prices may be subject to change. 06_21 gazette.ie Law Society Gazette June 2021 News in depth ANALYSIS 47

it to draft and deliver to the JAC comprehensive ‘statements of procedures’ and ‘statements of relevant skills and attributes’ in respect of each class of court business and every area of law. The expanse of that task should not be underestimated, the Society stated.

Increasing the pool On the question of determining the suitability of a proposed judi- cial candidate, the Law Society commented that the JAC should carefully reflect on the range of skills it wished to consider when addressing the ‘merit’ of an appli- cant for appointment. Extensive European Commission work on judicial training and education in SUPPORTING EU law must also be factored in. YOUR CPD In relation to the diversity par- NEEDS ticularly reflected in the solici- DIPLOMA CENTRE tors’ branch of the legal profes- sion, the Law Society proposed Leaders in legal education with professional focus and practical insight that a comparable approach to Flexible CPD recognised courses to suit a busy schedule that adopted to enhance gender diversity in judicial appointments COURSE NAME START DATE PRICE should be taken, in order to increase the number of solicitors MOOC in Environmental Law and Climate Change From 18 May 2021 Free being appointed to the bench. Committee chair – Jennifer Carroll-MacNeill Diploma in Law 3 September 2021 €4,600 Similarly, removing the four- Certificate in Aviation Leasing and Finance 30 September 2021 €1,650 year threshold for appointing appropriately qualified legal aca- Professional Doctorate in Law 4 October 2021 €6,000 demics to the JAC would pro- Diploma in Environmental and Planning Law 5 October 2021 €2,600 vide greater diversity in eligible Diploma in Family Law 5 October 2021 €2,600 candidates for judicial appoint- Diploma in Finance Law 5 October 2021 €2,600 ments, President Cahill told the Committee on Justice. Diploma in Insolvency and Corporate Restructuring 6 October 2021 €2,600 Mary Keane warned that the WE DON’T Certificate in Data Protection Practice 6 October 2021 €1,650 present requirement could be seen Diploma in Criminal Law and Practice 8 October 2021 €2,600 as a barrier to entry: “The broad- EMBRACE THE est range of legal professionals Diploma in Construction Law 9 October 2021 €2,600 should be able to access consider- Senator Michael McDowell REDUCTION IN Certificate in Property Law & Conveyancing for Legal Executives 9 October 2021 €1,650 ation for appointment; therefore, JAC NUMBERS Diploma in Judicial Skills and Decision-Making 13 October 2021 €3,000 the four-year requirement should members of the judiciary should “What is the purpose of an be removed,” she said. “There is a cease. interview? What questions are TO NINE IF IT Certificate in Mediator Training 13 October 2021 €1,650 particularly compelling argument Senator Michael McDow- going to be put to them? Is it Diploma in Tech and IP Law 13 October 2021 €3,000 for the appointment of academics ell told the committee that purely to find out is the person MEANS THAT THE Diploma in Commercial Property 26 October 2021 €2,600 to multi-judge courts, such as the he found the whole proposed pleasant, or to find out how they REPRESENTATIVES Court of Appeal or the Supreme interviewing process for sit- have functioned as a judge?” Diploma in Education Law 29 October 2021 €2,600 Court.” ting judges “problematic”, since Questions about the indepen- OF THE Certificate in Immigration Law and Practice 4 November 2021 €1,650 sitting High Court judges dence of the judiciary are “lurk- PRACTISING Certificate in Trademark Law 9 November 2021 €1,650 Interviewing process were currently entitled to ‘act ing in the back of my mind”, The Law Society also urged that up’ and were eligible to serve the senator said, specifically in PROFESSIONS CONTACT DETAILS e: [email protected] t: 01 672 4802 w: www.lawsociety.ie/diplomacentre the practice of submitting refer- on the Court of Appeal and terms of the questions that lay All lectures and workshops are webcast and available to view on playback, allowing participants to catch up on coursework at a time suitable to their own needs. ences from sitting or previous the Supreme Court. members might put to them. ARE EXCLUDED Diploma Centre reserves the right to change the courses that may be offered and course prices may be subject to change. 06_21 48 ANALYSIS News in depth June 2021 Law Society Gazette gazette.ie LET’S GET IT ON What are the options for getting divorce or separation cases listed more quickly for hearing in the Dublin Family Circuit? Keith Walsh examines the procedures

KEITH WALSH IS A DUBLIN SOLICITOR AND AUTHOR OF DIVORCE AND JUDICIAL SEPARATION PROCEEDINGS IN THE CIRCUIT COURT: A GUIDE TO ORDER 59, PUBLISHED BY BLOOMSBURY

he Circuit Courts have Leapfrog option parties have certified compliance been sitting and deal- Until 14 June 2017, the procedure with the pre-case-progression ing with urgent matters for having a case listed for case steps using the appropriate forms Tthroughout the pandemic, and progression was the same in all cir- (Form 37X and 37W), as contained many separation and divorce cuits. However, new Circuit Court in the new rules. The applicant can cases have been dealt with, while Rules were introduced by SI 207 serve the notice any time after the priority was given to domestic- of 2017, which consolidated and defence and the appropriate form PIC: WIKIMEDIA COMMONS violence cases. However, in the reorganised order 59 and changed has been filed and served. Dublin Circuit, there remains the procedure for case progression The respondent can file the a significant backlog of family- in Dublin only. notice if the applicant has not done law cases for hearing, motions to Three main changes were made so within ten days of filing and ser- be listed, and case-progression to the case-progression system in vice of the defence, and provided hearings to be allocated dates – Dublin: both parties have certified comple- whether new case progressions • A ‘leapfrog’ option was intro- tion of pre-case-progression steps that date from February 2020, duced, which permitted both (order 59, rule 39). or case-progression hearings parties, by agreement, to bypass A notice to fix a date for trial that started prior to that date but case progression and move the is not a notice of trial, and so the A ‘LEAPFROG’ were adjourned during the pan- case directly to the list to fix date on the notice to fix a date for demic. dates by application to the court trial will be the date of the list to OPTION WAS On 7 May 2021, the Courts office, fix dates in Dublin. The notice to INTRODUCED (IN Service announced that fam- • The manner in which cases were fix a date for trial must be issued ily-law business in the Dublin listed for case-progression hear- and served on the other side and, DUBLIN ONLY), Family Circuit was restarting. ings was changed (it ceased to be where pension relief is sought, A three-day list to fix dates was automatic), on the trustees of the pension WHICH PERMITTED held over 5, 6 and 7 May, which • Where a case was in case pro- scheme. The minimum notice for BOTH PARTIES, allocated dates for hearing in the gression, but the parties had a notice to fix a date for trial is ten Trinity and Michaelmas terms, as complied with all outstanding days. BY AGREEMENT, well as some dates outside those matters, then the case could terms. Case-progression hear- be transferred to the list to fix Listing matters (Dublin Circuit) TO BYPASS CASE ings commenced from 12 May, dates, on application to the In Dublin, once a defence is filed, PROGRESSION and motions before the county court office. a case-progression summons registrar started on 20 May. does not automatically issue fix- AND MOVE THE All of these sittings are taking Bypassing case progression ing a date for a case-progression place in person. A further list to In Dublin Circuit only, a case-pro- hearing within 70 days. In all cir- CASE DIRECTLY fix dates will be scheduled during gression hearing is not required cuits except Dublin, the filing of TO THE LIST TO the Trinity term, which will allo- after the filing of a defence where a defence triggers the automatic cate dates for the Michaelmas both parties (a) agree, and (b) have issuing of a summons for case FIX DATES BY term. It is likely that this list to certified completion of pre-case- progression from the court office. fix dates will take place in early progression steps (order 59, rule Instead, the following options APPLICATION July, which means that steps 38). A notice to fix a date for trial are open to parties in Dublin: TO THE COURT should be taken now to make can be filed without the neces- • Where both parties have lodged sure that cases are ready to be sity for case progression where a a duly signed joint certificate of OFFICE listed for hearing. defence has been filed and both completion of the pre-case-pro- gazette.ie Law Society Gazette June 2021 News in depth ANALYSIS 49 PIC: WIKIMEDIA COMMONS

gression steps, as set out in Form 37W and the 14-day notice, hearing date – jointly certify it for a motion or other applica- 37W, then the county registrar rather than the joint certifi- completion of the pre-case-pro- tion, to transfer the case directly must list a case-progression cate of completion. gression steps (in Form 37W) to the list to fix dates. This hearing and issue a case-pro- • If neither party has caused the and compliance in full with all transfer is usually only done gression summons (Form 37L) case-progression summons orders made and directions given where both sides agree. for the next available date, or to issue, within six months in case progression and readiness The measures introduced by • Where one party has lodged after the date for filing by the for trial by completing the new the Courts Service will address a certificate of completion by respondent of his defence, Form 37X, and attaching copies the backlog of family law cases that party of the pre-case-pro- his affidavit of means, and of every order made and direc- in the Dublin Circuit as restric- gression steps in Form 37W (where required) his affida- tion given in case progression, tions ease, but much activity and and has given the opposing vit of welfare, the proceed- the proceedings shall be listed work will be required to move party not less than 14 days’ ings shall be listed before the before the county registrar to fix cases on in the coming weeks written notice of his comple- court for an explanation of a date for hearing, notwithstand- and months. tion of the pre-case-progres- the delay in proceeding with ing that the case-progression The procedures for having sion steps, and his intention case progression, and the hearing is adjourned to a later cases listed for hearing without to apply for a case-progression court may make such orders date. the need for case progression, hearing, and calling on that and give such directions as it The county registrar must, where all the vouching and other party to complete the pre- considers appropriate, which save in exceptional circumstances preparatory work has been done, case-progression steps, then may include striking out the to be identified in any order should be used where possible. the county registrar must list proceedings, including any made, fix a date for the hearing In addition, as cases can be allo- a case-progression hearing and counterclaim, or directing the by the court of the proceedings cated dates for hearing directly issue a case-progression sum- issue of a summons for case and vacate any adjourned date from case-progression hearings, mons (Form 37L) for the next progression by the county for the case-progression hearing. the sooner a case is put into case available date following the registrar. progression, the sooner it will expiry of 21 days from the date Addressing backlog ultimately get resolved. of issue of the summons. The Where (during the course of One other way of getting your Solicitors should check the most common method used to case progression) both parties – case listed in the ‘list to fix dates’ legal diary and the Courts commence case progression in not less than seven weeks before is to request the Circuit family Service website regularly for Dublin has been by using Form any adjourned case-progression judge to transfer any case before updates. 50 ANALYSIS Eurlegal June 2021 Law Society Gazette gazette.ie THE INDEFINITE ARTICLE The transposition deadline for the EU Copyright Directive is fast approaching. However, it now seems likely that only a handful of member states will meet the deadline. Dr Mark Hyland uploads content

DR MARK HYLAND IS IMRO ADJUNCT PROFESSOR OF INTELLECTUAL PROPERTY LAW AT THE LAW SOCIETY AND LECTURER AT THE COLLEGE OF BUSINESS, TECHNOLOGICAL UNIVERSITY DUBLIN

he 27 EU member states gating the transposition at differ- islation to be future-proof, so have until 7 June to trans- ent speeds, it now seems likely as not to restrict technological pose the provisions of that only a handful will meet the development. TDirective 2019/790 on copyright transposition deadline. Importantly, the directive con- and related rights in the digital tains mandatory exceptions to single market into national law. Harmony central the reproduction and extraction The last significant revamp of the The subject matter and scope of rights. These exceptions cover EU copyright regime occurred 20 the Copyright Directive are set out text and data mining for the years ago, when the Information in article 1. The directive lays purposes of scientific research, Society Directive (2001/29/EC) was down rules that aim to further the digital use of works in cross- adopted. harmonise EU law applicable to border teaching activities, and If the legislative process for this copyright and related rights in the the preservation of cultural heri- ARTICLE 17(4) directive proved challenging, the framework of the internal market, tage. In short, these exceptions transposition process has been no taking into account (in particular) will facilitate greater access to SUFFERS FROM less eventful. In May 2019, Poland digital and cross-border uses of protected works, albeit in certain RATHER VAGUE brought a legal challenge to cer- protected content. The direc- limited cases. tain aspects of the directive’s arti- tive acknowledges the need for WORDING. FOR cle 17. A postponed opinion from modern copyright rules fit for the Gordian knot Advocate General Saugmands- digital age. Article 17 is a key provision in the EXAMPLE, THE gaard Øe on this challenge means Three important objectives of directive. It is a significant, much- TERM ‘BEST that the actual CJEU judgment in the directive are: needed and well-intentioned pro- the case will also be delayed, pos- • More cross-border access to vision, but it suffers from some EFFORTS’ IS USED sibly until 2022. Naturally, the content online, rather poor drafting and internal timing is anything but ideal, as • Wider opportunities to use tensions. IN ALL THREE member states grapple with the copyright materials in educa- The objective of article 17 is CONDITIONS. transposition of article 17, one tion, research and cultural heri- to recalibrate the EU’s digital of the most complex and debated tage, and economy to ensure that rights- BUT WHAT provisions in the directive. Fur- • A better functioning copyright holders (creators, musicians, ther complicating this situation is marketplace. video-producers, photographers, EXACTLY DOES the failure by the European Com- etc) are fairly remunerated. THIS TERM MEAN mission, up to now, to publish its Recital (3) of the directive des- This recalibration can occur by eagerly awaited formal guidance cribes the overall context of the addressing the so-called ‘value IN PRACTICAL on the application of article 17. new law, referring to the chal- gap’ in the digital market. This This delayed guidance was due to lenges of “rapid technological refers to the mismatch between TERMS? be published in early 2021. developments” and the emer- the economic benefits flowing to None of these things are assist- gence of “new business models” online service providers, and the News from the EU and International Affairs Committee. Edited by TP ing the transposition process. and “new actors”. It also acknowl- economic benefits flowing to the Kennedy, Director of Education While the member states are navi- edges the need for copyright leg- actual copyright holders. It has gazette.ie Law Society Gazette June 2021 Eurlegal ANALYSIS 51 PIC: SHUTTERSTOCK/GAZETTE STUDIO 52 ANALYSIS Eurlegal June 2021 Law Society Gazette gazette.ie PIC: SHUTTERSTOCK

resulted in a funnelling of value works or other protected sub- judgment – it will be pushed back, away from creators and into the ject matter uploaded by its users, and may not be delivered until hands of the online platforms. which it organises and promotes sometime in 2022. ONLINE Generally, the online service for profit-making purposes”. The CONTENT- providers do considerably bet- types of companies covered by this Market sharing ter, commercially speaking, than definition include YouTube, Daily Recital (61) of the directive pro- SHARING rights-holders and one of the Motion and Vimeo. vides the rationale behind article SERVICES key aims of the Copyright Direc- 17. It refers to the growing com- tive is to resolve this commercial Polish challenge plexity of the online content PROVIDE ACCESS unfairness, thereby ensuring that Article 17 has been the subject market and the fact that online creators receive fair payment for of heated debate ever since it content-sharing services provide TO A LARGE their work. appeared in the draft directive access to a large amount of copy- Article 17 is a complex provi- (as article 13) in September 2016. right-protected content uploaded AMOUNT OF sion that requires online con- The debate surrounding article by their users. For many internet COPYRIGHT- tent-sharing service providers 17 continues unabated during the users, the online platforms repre- (OCSSPs) to obtain an authori- transposition process, and will sent their main source of access to PROTECTED sation from copyright hold- inevitably continue beyond the content online. The recital goes ers in order to communicate to transposition deadline. on to refer to copyright-protected CONTENT the public, or make available to Aspects of article 17 are cur- material being uploaded by inter- UPLOADED BY the public, copyright-protected rently subject to a legal challenge net users “without prior authori- works that have been uploaded by by Poland in Case C-401/19 sation” (from copyright holders) THEIR USERS. users of OCSSP services. Where Republic of Poland v European Par- and the challenges that that poses an OCSSP fails to obtain the liament and Council of the European to the individual rights-holders. FOR MANY authorisation, it will be liable for Union. Recital (61) highlights the im- INTERNET USERS, acts of copyright infringement. Frustratingly, Advocate General portance of fostering the develop- However, the OCSSP may be Saugmandsgaard Øe’s opinion on ment of a licensing market bet- THE ONLINE able to obtain an exemption from the challenge was recently post- ween rights-holders and OCSSPs. liability if it complies with three poned, from 22 April to 15 July. The licensing agreements arising PLATFORMS conditions specified in article This means that the opinion will from such market should be “fair REPRESENT THEIR 17(4). be published subsequent to the and keep a reasonable balance The Copyright Directive defines transposition deadline, thereby between both parties”. MAIN SOURCE an OCSSP as “a provider of an depriving the 27 member states of Importantly, the recital also information society service of an initial indication as to how they recommends that rights-hold- OF ACCESS which the main, or one of the should reconcile the conflicting ers should “receive appropriate TO CONTENT main purposes, is to store and obligations contained in article 17. remuneration for the use of their give the public access to a large The postponement will also have works or other subject matter”. ONLINE amount of copyright-protected consequences for the actual CJEU Recital (61) concludes by reiterat- gazette.ie Law Society Gazette June 2021 Eurlegal ANALYSIS 53 ing the importance of contractual c) Acted expeditiously, upon holders, OCSSPs, consumers, freedom. In other words, copy- receiving a sufficiently substan- users, and fundamental-rights org- right holders are entirely free to tiated notice from the rights- anisations. On 27 July 2020, the give (or withhold) authorisation holder, to disable access to, or commission published a 19-page and, separately, conclude (or not remove from their websites, the final consultation paper titled conclude) a licensing agreement notified works or other subject ‘Targeted Consultation Addressed with an OCSSP. matter, and made best efforts to to the Participants to the Stake- prevent their future uploads in holder Dialogue on Article 17 of Obtaining authorisation accordance with point (b). the Directive’. Article 17(1) is of particular impor- Participants were then given a tance. It requires member states to Article 17(4) suffers from rather final opportunity to submit their provide that OCSSPs perform an vague wording. For example, the written views until 10 September act of communication to the pub- term ‘best efforts’ is used in all 2020, with a view to the European lic or an act of making available to three conditions. But what exactly Commission finalising its guid- the public when it gives the pub- does this term mean in practi- ance by the end of last year. But, at lic access to copyright-protected cal terms? How many attempts the time of writing, the commis- works or other protected subject must an OCSSP make to obtain sion has yet to publish this impor- matter uploaded by its users. authorisation from a copyright tant guidance. Moreover, there is Article 17(1) goes on to require holder before the condition is no clear indication as to when the OCSSPs to obtain an authorisa- satisfied? guidance might be published. tion from the rights-holders (for References to ‘high industry instance, by concluding a licens- standards of professional dili- Copyright prognostications ing agreement) in order to legally gence’ and to act ‘expeditiously’ The Copyright Directive will cer- communicate protected works to are also rather woolly. It is almost tainly have a very significant and the public or to make them avail- inevitable that some or all of these positive impact on the copyright able to the public. terms will end up being chal- landscape within the EU. While it Article 17(4) concerns a situ- lenged in national courts (follow- adapts and supplements the exist- ation where no authorisation is ing transposition), or being the ing EU copyright framework, the granted by the rights-holder. In subject of an article 267 TFEU directive also ensures that a high such a situation, the OCSSP will preliminary reference from a level of protection of copyright be liable for unauthorised acts of national court to the CJEU. and related rights is maintained. communication to the public, and Article 17 ensures that there is unauthorised ‘making-available’ Commission guidance a legal framework for the use of to the public of copyright pro- Article 17(10) requires the Euro- copyright-protected content in tected works. pean Commission, in coopera- the context of information society An exemption from the liabil- tion with the member states, to services. By imposing on OCSSPs THE COPYRIGHT ity mechanism is built into article organise stakeholder dialogues to the obligation to obtain authori- 17(4), and that is where things discuss best practices for coopera- sation from rights-holders, the DIRECTIVE start to get complicated! tion between OCSSPs and rights- directive helps to recalibrate the Despite no authorisation being holders. EU’s digital economy. By foster- ADAPTS AND obtained from a copyright holder, When discussing best prac- ing the increased use of licensing SUPPLEMENTS the OCSSP may be exempt from tices, special account must be agreements between individual liability where three cumula- taken (among other things) of copyright holders and OCSSPs, THE EXISTING tive conditions are satisfied. The the need to balance fundamental the directive addresses the value OCSSP must demonstrate that rights, and of the use of copyright gap and the associated commer- EU COPYRIGHT they have: exceptions and limitations. This cial unfairness. FRAMEWORK a) Made best efforts to obtain an provision requires the commis- It is regrettable that we are still authorisation, and sion to consult with all the rel- waiting for the European Com- AND ALSO b) Made, in accordance with high evant stakeholders, take account mission’s guidance on the applica- industry standards of profes- of the results of the stakeholder tion of article 17. Equally regret- ENSURES THAT A sional diligence, best efforts dialogues, and issue guidance on table is the fact that the CJEU HIGH LEVEL OF to ensure the unavailability of the application of article 17, in judgment on the Polish challenge specific works and other subject particular regarding the coopera- to parts of article 17 may not be PROTECTION OF matter for which the rights- tion referred to in article 17(4). handed down for quite some time. holders have provided the ser- Between October 2019 and Both issues make an already chal- COPYRIGHT AND vice providers with the relevant February 2020, six such stake- lenging transposition process RELATED RIGHTS and necessary information, and holder dialogues took place, in- even more challenging for the in any event, volving representatives of rights- member states. IS MAINTAINED LAW SOCIETY PROFESSIONAL TRAINING

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Intellectual Property Law Seminar 2021: Copyright, 3 hours General 3 June €160 €186 Patents and Trade Marks - Online via Zoom Webinar (by eLearning)

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For a complete listing of upcoming courses visit www.lawsociety.ie/cpdcourses or contact a member of the Law Society Professional Training team on: P: 01 881 5727 | E: [email protected] | F: 01 672 4890

*Applicable to Law Society Finuas Skillnet members ** Open Skills Training Programme open to all staff working in the legal sector *** Open Skills Managers Training Programme open to all managers working in the legal sector. 06_21 gazette.ie Law Society Gazette June 2021 Council report BRIEFING 55

REPORT OF LAW SOCIETY COUNCIL MEETING 7 MAY 2021 PII renewal EAST recommendations informed the meeting that a sub- Family and child law PII Committee chair Barry The Council approved a number mission had recently been made Chair of the Family and Child McCarthy reported that a PII of recommendations of the Envi- on the Mental Health Act. Law Committee Helen Cough- webinar for Council members ronmental and Sustainability Task In conducting the work, the lan informed the meeting that would be held in June to con- Force (EAST) in respect of: task force expressed particular significant family-law develop- sider members’ experiences of • Remote attendance at meetings concern about a serious gap that ments were ongoing, which, it was the last renewal process and to of the Society, post-COVID-19, arises in circumstances where hoped, would bring about substan- discuss potential enhancements • The Society’s Digital Trans- children between the ages of 16 tial change in the practice area and to the process. formation Project, and 18 could be deemed to be alleviate ongoing issues of concern • The development of a charter voluntary patients on the basis around access to justice. Joint statement on China and practice guidelines on envi- of parental consent, when they The Council agreed to issue the ronmental sustainability, and themselves were not consenting. Prescriptive easements following joint statement: • The establishment of a new Having been provided with a “The Law Societies of Northern non-standing committee dedi- Education detailed memo on the issue of Ireland, Ireland, and Scotland cated to the practice area. New committee chair Rich- prospective easements by the unreservedly condemn the recent ard Hammond reported to the Conveyancing Committee, the announcement by the Government Banking charges on deposits Council on the new PPC syllabus Council discussed the upcoming of the People’s Republic of China of Task force chair Maura Derivan design and the inaugural ‘Becom- deadline in respect of prescrip- sanctions against lawyers for provid- updated the Council on the issue ing a solicitor’ symposium. tive easements and how best to ing legal advice on the human-rights and confirmed that work was ensure that solicitors were pro- violations in the Xinjiang region of underway on developing a webinar Finance tected. The Council noted that a China. to provide further information to Chair of the Finance Committee submission had been made to the “The actions of the Chinese Gov- members. Chris Callan reported issues that Department of Justice that sought ernment constitute an attack upon included PC numbers, the impact an extension to the deadline, the rule of law and the independence Mental-health law of charges on deposits on the and that further contact would of the legal profession, and should be Chair of the Mental Health and Society’s funds, and the audited be made with the department in rescinded immediately.” Capacity Task Force Áine Hynes financial statements. respect of the issue.

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. 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 DuringWe continue the current to respond public to health your legal crisis, research the library enquiries is closed and to document-delivery visitors. The library requests. team is working from home. databasesviaDuring the onlinethe tocurrent answer catalogue. public your LawWatch enquiries.health crisis, will Self-service thebe published library access is closed weekly to theto as visitors. entireusual. Irish The judgments’library team collection is working is from available home. LAWWeUnfortunately, continue SOCIETY to it respond is not possible to your LIBRARY legalto lend research books duringenquiries AND this and period. 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 viaSERVICES the online catalogue. – LawWatch WE DELIVER! will be published weekly as usual. SERVICESDuringvia the onlinethe current catalogue. public – LawWatch healthWE crisis, DELIVER! will thebe published library is closed weekly to as visitors. usual. The library team is working from home. We continue to respond to your legal research enquiries and document-delivery requests. During the current public health crisis, 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. databases to answer your enquiries. Self-service access to the entire Irish judgments’ collection is 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 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 viadatabases the online to answer catalogue. your LawWatch enquiries. will Self-service be published access weekly to the as entireusual. Irish judgments’ collection is available via the online catalogue. LawWatch will be published weekly as usual. 56 BRIEFING Practice notes June 2021 Law Society Gazette gazette.ie

PRACTICE NOTES ARE INTENDED AS GUIDES ONLY AND ARE NOT A SUBSTITUTE FOR PROFESSIONAL ADVICE. NO RESPONSIBILITY IS ACCEPTED FOR ANY ERRORS OR OMISSIONS, HOWSOEVER ARISING

GUIDANCE AND ETHICS COMMITTEE TEN STEPS TO A MORE COSTS-COMPLIANT FIRM 1) The law in significantly greater fees, a stage of the litigation process, where damages or other money Sections 149-61 of the Legal new notice will be provided to and the statement of the likely are recovered, details of that Services Regulation Act 2015 were the client, costs or basis of costs of engag- amount; and the amount of legal commenced on 7 October 2019. • That the solicitor can suspend ing counsel, expert witnesses, costs recovered on behalf of the These provisions replace solici- providing legal services pend- or such other services. Client client, including costs recovered tors’ obligations under section ing receipt of confirmation approval is required before from another party or an insurer 68 of the Solicitors (Amendment) from the client that they wish engaging any such persons. on behalf of another party to the Act 1994. the solicitor to continue to The client must be advised of matter concerned. The BOC provide legal services in the the possibility of being respon- must, further, be in such form (if 2) The notice matter (the suspension period sible for, not only their own any) as may be specified in the Under section 150 of the act, a applies to subsequent notices), legal costs, but the other side’s rules of court. solicitor is obliged, on receipt and legal costs and, where a case of instructions, as soon as it • The amount of VAT charge- is discontinued, that the cli- 8) BOC dispute procedure becomes practicable to do so, to able. ent may be required to pay the Along with the BOC, the solici- give the client a notice setting legal costs of other parties to tor is obliged to provide to the out the legal costs to be incurred Where clarification in relation to the litigation. When instructing client an explanation in writing or, if not practicable, to set out a notice is sought by a client, this a barrister, the barrister must of the procedure available to the the basis on which the legal must be provided as soon as rea- provide a notice, which must client should the client wish to costs will be calculated. sonably practicable. be approved by the client in dispute any aspect of the BOC, Costs in contentious mat- advance. and it must contain the following ters cannot be a percentage/ 3) Law Society templates information: that the client may proportion of damages or mon- The Society has issued template 6) Contract for fees discuss the matter with the solic- eys recovered, other than in notices and guidance, which are A solicitor and client can make itor; that the client is obliged to debt-collection cases. In every available on the Law Society’s a contract concerning fees, the communicate to the solicitor as case where a solicitor becomes website. The templates deal amount, and the manner of pay- to the existence of any dispute aware of a matter that is likely with general matters, including ment, pursuant to section 151 of on any aspect of the BOC, and to significantly increase the litigation and personal injuries, the act. In such a case, a notice the date by which, and the means costs above those indicated in together with a draft bill of costs is not required, but the contract by which this is to be communi- the notice, then the solicitor is and guidance notes. The notice must contain all the information cated; that the solicitor is obliged required, as soon as becoming should be written in clear lan- that a notice should contain. to attempt to resolve the dispute aware, to provide the client with guage that is easily understood. Where such a contract exists, it by informal means, including a new notice. will constitute the entire agree- mediation; that the client may Every time there is a change 4) Office procedure ment, and no other moneys/fees have the dispute referred to in instructions, or an additional Make sure you have procedures are recoverable. mediation; that the client may matter has to be dealt with, then in place to ensure a notice is apply for adjudication of legal a new notice must also be pro- issued to the client as soon as is 7) Bill of costs costs, and it must provide con- vided to the client. practicable after instructions are A signed bill of costs (BOC) tact information for the Office of The notice should contain: received. Consider adopting an must be provided to the client the Legal Costs Adjudicator, and • The legal costs incurred at the office system where, when first as soon as practical after con- the potential cost to the client of date of the notice; the legal opening a file, you have a sepa- cluding the provision of legal seeking an adjudication of the costs of a fixed nature or that rate folder dealing with compli- services (section 152 of the BOC; and the date on which the are certain to be incurred; ance/regulatory matters, includ- act). The BOC must contain a solicitor may make application and the legal costs likely to be ing your letter of engagement, summary of the legal services for adjudication in the event the incurred, AML compliance, the notice, and provided to the client in con- BOC remains unpaid (see sec- • The basis of calculation of terms of business. nection with the matter con- tion 152(3) of the act). the legal costs, explained by cerned; an itemised statement of reference to paragraph 2 of 5) Litigation the amounts in respect of legal 9) Time limits schedule 1 of the Legal Services There are extra obligations for costs in connection with legal The time limits for referring Regulation Act, solicitors with regard to notices services; VAT registration num- the BOC for adjudication start • A statement to say that, if the for litigation matters. The solici- ber; where time is a factor in from the date the bill is issued. solicitor becomes aware of tor is obliged to set out an outline calculating legal costs, the time The time limit for a client refer- any factor that might result of the work to be done at each spent dealing with the matter; ring the BOC for adjudication gazette.ie Law Society Gazette June 2021 Practice notes BRIEFING 57 is the earlier of three months 10) Sanctions cumstances where the BOC is charge would create an injustice from the date of payment, or six The notice and BOC must con- being adjudicated by a legal costs between the parties. Failure to months after giving the BOC to tain all the information required adjudicator (LCA), the LCA does comply with the act may consti- the client. For the solicitor, it is under the act. Failure to include not have the authority to confirm tute misconduct where the act or between 30 days and 12 months the required information could a charge that was not included in omission consists of a breach of from the date on which the BOC result in not being paid, or it could the notice, unless the LCA is of the act. Seeking excessive fees may was provided to the client. be held to be misconduct. In cir- the opinion that to disallow the also be considered misconduct.

PII COMMITTEE IN-HOUSE SOLICITORS AND PRO BONO WORK In-house solicitors in the private Under section 59 of the linked to the firm or independent Solicitors are required to have and public sectors who wish to Solicitors Act 1954, solicitors are law centre. This can be arranged a current practising certificate in carry out pro bono work should prohibited from acting as an by providing the Society with a place in order to provide legal ensure that they meet their statu- agent for an unqualified person letter or email from the firm or services of any kind. tory regulatory requirements (including bodies corporate) so independent law centre confirm- A solicitor in the full-time ser- with regard to the Solicitors Acts as to enable that unqualified per- ing that you also provide legal vice of the State (‘State solicitor’) 1954-2015, professional indem- son or body corporate to act as services through that entity, and is defined under the Solicitors Acts nity insurance (PII), and practis- a solicitor. Solicitors are prohib- are covered by their PII. 1954-2015 as a solicitor required ing certificates. ited from permitting their name This confirmation can be sent to devote the whole of their time Pro bono work cannot be pro- to be made use of, in business to the Law Society by email to to the service of the State as a vided by in-house solicitors to carried on by the solicitor as a [email protected]. solicitor and is remunerated in third parties under the title of solicitor, upon the account of In-house solicitors providing respect of such service wholly their employer. Bodies corporate or for the profit of an unquali- pro-bono legal services to third out of moneys provided by the are prohibited under the Solici- fied person or body corporate. parties should ensure that they Oireachtas. tors Acts from acting as a solicitor, Contravention of this section is are covered by the PII of the State solicitors are not and in-house solicitors may only professional misconduct. solicitor firm or independent required to hold a practising provide legal services to their As such, in-house solici- law centre through which they certificate so long as they only employer, not to third parties. tors who wish to provide legal are providing the legal services, provide legal services to their Section 64 of the Solicitors Act services (which constitute any especially if they are not an employer, the State. 1954 prohibits bodies corporate, services of a legal or financial employee of the firm or inde- If a State solicitor wishes to their directors, or servants from nature) to third parties, includ- pendent law centre. Any cover provide legal services, includ- doing any act of such nature or ing pro bono legal services, must provided by a body corporate ing pro bono legal services, to in such manner as to imply that provide such services through does not meet the statutory third parties, they are required the body corporate is qualified, or the structure of a solicitor firm PII requirements in this juris- to obtain a practising certificate recognised by law as qualified, to or independent law centre. The diction, as such cover must be and have the necessary PII cover act as a solicitor. Contravention of Society must be notified of such provided by a solicitor firm or extended to them by the firm or this section is a criminal offence. work to ensure that you are independent law centre. independent law centre.

CONVEYANCING COMMITTEE DIGITISATION OF THE CONVEYANCING PROCESS Practitioners are reminded of the title and related documents in itors won’t see the post until it practice that: practice note issued by the Con- digital format (with hard cop- has been processed (scanned) by • All correspondence includes veyancing Committee and the ies to follow where requested) administrative staff. the file reference of the recipi- Technology Committee in the at the outset of a transaction, • During this period, practitio- ent, July 2019 Gazette (p58) – ‘Sharing where possible. ners are encouraged to com- • Emails should be sent to the conditions of sale and title docu- • When sending documents municate with colleagues by designated email address of, or ments in electronic form’. in hard copy, the cover letter email as appropriate and to for, the person with whom they Recognising that, during the should indicate if the enclosures avoid sending hard-copy letters, are corresponding, and COVID-19 lockdown, many were previously sent digitally unless it is necessary to do so. • As ever, great care should be solicitors are working from home, to the recipient. This will save taken when opening attach- practitioners are advised that: duplication of scanning efforts The committee also wishes ments to emails received from • It is good practice to issue copy and recognises that many solic- to highlight that it is good external sources. 58 BRIEFING Practice notes June 2021 Law Society Gazette gazette.ie

CONVEYANCING COMMITTEE CERTIFICATE-OF-TITLE SYSTEM AND AML OBLIGATIONS The committee would like to The committee was recently collect the bank’s AML require- stands that the lender has since remind conveyancing practitio- made aware that a lender intro- ments, the bank merely passed ceased this practice. If practitio- ners that there is no obligation duced such a requirement as its COVID-related risks on ners continue to encounter this on the borrower’s solicitor in the a condition of a loan because of to the solicitor, which is not matter in practice, they should Law Society’s certificate-of-title a perceived difficulty of meet- acceptable practice. let the committee know, for the system for residential mortgage ing with clients during the A lender is not entitled to with- purpose of the committee taking lending to carry out a lender’s COVID pandemic. By requir- hold issue of loan funds for this up the matter with the relevant AML obligations on its behalf. ing the borrower’s solicitor to reason. The committee under- lending institution.

CONVEYANCING COMMITTEE POWER OF ATTORNEY IN CERTIFICATE-OF-TITLE SYSTEM The Conveyancing Commit- of loan funds until the borrower’s ticipating in the Society’s certifi- If practitioners continue to tee is aware that some lenders solicitor had the power of attor- cate-of-title system that a power encounter this matter in prac- include a power of attorney form ney form executed by the bor- of attorney form will be executed. tice, they should let the commit- in their loan packs going out to rower in advance of drawdown. A lender is not entitled under the tee know, for the purpose of the solicitors. The committee was The committee confirms that system to withhold issue of loan committee taking up the matter recently made aware that one it is not part of the certificate-of- funds on the grounds that such a with the relevant lending institu- lender sought to withhold issue title agreement with lenders par- power has not been signed. tion. gazette.ie Law Society Gazette June 2021 Regulation BRIEFING 59

SOLICITORS NOTICE: THE HIGH COURT DISCIPLINARY TRIBUNAL In the matter of Patrick McGonagle, a solicitor practising as McGonagle Solicitors, No 1 Main Street, Dundrum, Dublin 14, REPORTS OF THE OUTCOMES OF SOLICITORS DISCIPLINARY and in the matter of the Solicitors Acts 1954-2015 [2021 no 6 SA] TRIBUNAL INQUIRIES ARE PUBLISHED BY THE LAW SOCIETY Law Society of Ireland (applicant) OF IRELAND AS PROVIDED FOR IN SECTION 23 (AS AMENDED BY Patrick McGonagle (respondent solicitor) SECTION 17 OF THE SOLICITORS (AMENDMENT) ACT 2002) OF Take notice that, by order of the President of the High Court made on THE SOLICITORS (AMENDMENT) ACT 1994 26 April 2021, it is ordered that: In the matter of Michael the respondent solicitor guilty 1) Pursuant to section 18 of the Solicitors (Amendment) Act 2002, no Keane, solicitor, Flynn & of misconduct in respect of the bank shall, without leave of the court, make any payment out of McMorrow, Solicitors, Bridge following complaint, as set out McGonagle Solicitors’ client account, and that Street, Carrick-on-Shannon, in the applicant’s affidavit: failed 2) Patrick McGonagle be suspended from practising as a solicitor until Co Leitrim, and in the mat- and continues to fail to use his further order. ter of the Solicitors Acts 1954- best endeavours to recover [the 2015 [2018/DT21 and High applicant’s] fees in respect of any, Registrar of Solicitors, Law Society of Ireland, May 2021 Court 2020 no 21 SA] some, or all of the cases listed by Named client (applicant) the applicant. Michael Keane (respondent The High Court ordered that: IF LIFE GIVES YOU LEMONS, solicitor) 1) The respondent solicitor stand WE’RE HERE TO HELP On 15 December 2020, further censured, to the determination of the 2) The respondent solicitor pay Consult a Colleague in total confidence applicant’s appeal of the decision 50% of the applicant’s legal Call us on 01 284 8484 of the Solicitors Disciplinary costs, to be adjudicated in A confidential free service from the DSBA. Tribunal, the High Court found default of agreement. www.consultacolleague.ie

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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 60 PROFESSIONAL NOTICES June 2021 Law Society Gazette gazette.ie

WILLS Baker, Jeremiah (deceased), late RATES of 3 Bettystown Avenue, Raheny, Dublin 5, and Drombane, Thurles, Co Tipperary, who died on 1 April PROFESSIONAL NOTICE RATES 2021. Would any person having RATES IN THE PROFESSIONAL NOTICES SECTION ARE AS FOLLOWS: any knowledge of the whereabouts Wills – 155 (incl VAT at 23%) of any will made or purported • € to have been made by the above- • Title deeds – €310 per deed (incl VAT at 23%) named deceased, or if any firm • Employment/miscellaneous – €155 (incl VAT at 23%) is holding same, please contact Patrick J O’Meara & Co, Solici- HIGHLIGHT YOUR NOTICE BY PUTTING A BOX AROUND IT – €30 EXTRA tors, Liberty Square, Thurles, Co Tipperary; tel: 0504 22333, email: ALL NOTICES MUST BE PAID FOR PRIOR TO PUBLICATION. ALL NOTICES MUST BE [email protected] EMAILED TO [email protected] and PAYMENT MADE BY ELECTRONIC FUNDS TRANSFER (EFT). The Law Society’s EFT details will be supplied following receipt of your Daunt Smyth, Stuart (deceased), email. Deadline for July 2021 Gazette: 16 June 2021. late of 35 Ballybeg, The Bank, No recruitment advertisements will be published that include references to ranges of post-qualification Rathnew, Co Wicklow. Would experience (PQE). The Gazette Editorial Board has taken this decision based on legal advice that indicates any person with any knowledge that such references may be in breach of the Employment Equality Acts 1998 and 2004. of a will executed by the above- named deceased, who died on 12 December 2020, please contact by the above-named deceased, edge of the whereabouts of any 2021. Would any person having Mairead Leyne Solicitor, 3 Park who died on 16 November will made by the above-named knowledge of the whereabouts House, Greystones, Co Wick- 2020, please contact Dermot B deceased, or if any firm is hold- of a will by the above-named low; DX 205003 Greystones; tel: O’Dwyer & Co, Solicitors, The ing same, please contact Patrick deceased please contact Powderly 01 287 3483, email: maireadleyne Square, Cahir, Co Tipperary; tel: J Durcan and Company, Solici- Solicitors LLP, Finnerty House, [email protected] 052 744 5958, email: dermot@ tors, James Street, Westport, Maynooth, Co Kildare; tel: 01 odwyerlaw.com Co Mayo; DX 53002 Westport; 601 6390, email: barry@powderly Gallagher, Stephanie (deceased), tel: 098 25100, email: admin@ solicitors.ie late of 172 Killester Avenue, Kill- McDonald, James (deceased), patrickjdurcan.ie ester, Dublin 5, who died on 4 late of Farneese, Tinahely, Co Ryan, John Patrick (known as April 2020. Would any person hav- Wicklow, who died on 19 August Ray, Ellen (deceased), late of 34 Paddy) (deceased), late of Van- ing knowledge of a will made by 2019. Would any person having Walkinstown Crescent, Walkin- deleur Street, Kilrush, Co Clare. the above-named deceased please knowledge of the whereabouts stown, Dublin 12, who died on Would any person having knowl- contact Direct Law Solicitors, 10 of any will made or purported to 18 February 2021. Would any edge of the whereabouts of any Skerries Point Shopping Centre, have been made by the above- person having knowledge of any will made by the above-named Skerries, Co Dublin; DX 151002 named deceased, or if any firm will made by the above-named deceased, who died on 24 March Skerries; tel: 01 849 4226, email: is holding same, please contact deceased please contact Johnston 2021, please contact Bowen & [email protected] Michael O’Flaherty of Crean & Solicitors, 179 Crumlin Road, Co, Solicitors, Pound Street, O’Flaherty Solicitors, Mill Wood, Crumlin, Dublin 12; email: info@ Sixmilebridge, Co Clare; tel: 061 Gray, Anne (otherwise Áine Carrigduff, Bunclody, Co Wex- johnstonsolicitors.ie 713 767, fax: 061 713 642, email: Gray) (deceased), late of 14 Lou- ford; tel: 053 937 7938, email: [email protected] vain, Roebuck Road, Dublin 14. [email protected] Rose, Joshua James (deceased), Would any person having knowl- late of Donadea, Naas, Co Sheridan, Vincent (deceased), edge of the whereabouts of any McKeon, Richard (deceased), Kildare, who died on 3 March late of 157 Graham Road, Hack- will made by the above-named late of Hazeldean, Hazelhatch deceased, who died on 15 January Road, Newcastle, Co Dublin, who 2021, please contact Gartlan Furey died on 14 April 2021. Would any Solicitors, 20 Fitzwilliam Square, person having any knowledge of Dublin 2; DX 51; tel: 01 799 8000, the whereabouts of any will made email: [email protected] by the above-named deceased, or if any firm is holding same, please Hyland, Anthony (otherwise contact Hayes Solicitors LLP, Tony) (deceased), late of 7 Bur- Lavery House, Earlsfort Te r - gess Hill, Ballylooby, Cahir, Co race, Dublin 2; email: oburke@ Tipperary; formerly of Lower hayes-solicitors.ie Gormanstown, Ardfinnan, Clon- mel; Ballybacon, Ardfinnan, Clon- McManamon, John (deceased), mel; and Garryduff, Ardfinnan, late of Drumgallagh, Ballycroy, Clonmel, Co Tipperary. Would Westport, in the county of Mayo, any person having knowledge of who died on 3 November 1996. the whereabouts of any will made Would any person having knowl- gazette.ie Law Society Gazette June 2021 61 PROFESSIONAL NOTICESNOTICES

and Tenant (Ground Rents) (No with the application before the IS YOUR CLIENT INTERESTED 2) Act 1978 and in the matter of county registrar on the expiry IN SELLING OR BUYING 81 Morehampton Road, Don- of 21 days from the date of this

nybrook, Dublin 4: in the mat- notice and will apply to the county A 7-DAY LIQUOR LICENCE? ter of an application by Elaine registrar for the county of the city email: [email protected] Cogavin of Dublin for directions as may be Take notice that any person hav- appropriate on the basis that the web: www.liquorlicencetransfers.ie ing any interest in the freehold persons beneficially entitled to estate of the following prop- the superior interest including the Call: 01 2091935 erty: all and singular the prem- freehold reversion in the aforesaid ises known as 81 Morehampton premises are unknown or unascer- Road, together with the yard and tained. ney, London E3, and Elm Lodge, £7.10d thereby reserved and the plot of ground at the rear thereof, Date: 4 June 2021 Castleknock, Dublin 15, who pas- covenants of the lessee and the situate in the parish of St Mary’s, Signed: Liston & Company sed away on 4 August 1987. Would conditions therein contained and, Donnybrook, in the city of Dub- (solicitors for the applicant), Argyle any person having knowledge of further, the subject matter of a lin, together with the use of the House,103-105 Morehampton Road, the whereabouts of a will of the sublease dated 29 June 1946, John passage or stable lane at the rear Donnybrook, Dublin 4, D04 T2X5 above-named please contact Justin Francis Smith to Arthur Robert of the said premises entering on Hughes, solicitor, Justin Hughes Martin McLoughlin for a term the Marlborough Road, being In the matter of the Landlord Solicitors, 89 Phibsborough Road, of 88 years from 1 May 1949 and that part of the property held by and Tenant Acts 1967-2019 and Dublin 7; tel: 01 882 8583, 882 subject to a yearly rent of £10 the applicant under an indenture in the matter of the Landlord 862, email: [email protected] per annum thereby reserved and of lease dated 10 May 1900 and and Tenant (Ground Rents) (No the covenants on the part of the made between Patrick J Newport 2) Act 1978 and in the matter of Slattery, Vincent (deceased), lessee and the conditions therein of Marlborough Road, Donny- an application by Mark Dunne, late of 10 Beverley Drive, Tem- contained. brook, in the county of Dublin of Denise Holland and Declan pleogue, Dublin 16, who died on Take notice that the applicant, the one part, and Michael Cullen Quilligan, and in the matter 1 May 2021. Would any person Sheila McGinnity, hereby intends of 79 Morehampton Road, Don- of the property known as 44, holding or having any knowl- to submit an application to the nybrook, in the county of Dublin 44A and 46 Seafield Crescent, edge of a will made and executed county registrar for the county of the other part for a term of Booterstown, Co Dublin by the above-named deceased of Cavan for the acquisition of 166 years from 1 May 1900, sub- Take notice that any person hav- please contact Geraldine Kelly & the freehold and all intermediary ject to a yearly rent of IR£13.6.8 ing an interest in the freehold Co, Solicitors, 195 Lower Kim- interest in the said property and but indemnified against all but estate or any intermediate inter- mage Road, Dublin 6W; tel: 01 that any party asserting that they IR£6.13.4 thereof and to the ests of 44, 44A and 46 Seafield 492 1223, email: info@geraldine hold a superior interest in the covenants and conditions therein Crescent, Booterstown, Co Dub- kellysolicitors.ie property is called upon to furnish contained, and also being part of lin, held under indenture of lease evidence of such title to the prop- the property that was demised by dated 31 December 1934 made MISCELLANEOUS erty to the undersigned solicitors an indenture of lease dated 8 April between Patrick Jerome Hen- Practice for sale in the south within 21 days from the date of 1897 between William H Clarke nessy, Stephen Hubert Butler, of the country. Reply to box no this notice. of 17 Rialto Terrace, South Cir- William Mark McCarthy and 01/05/2021 (c/o Law Society Take notice that, in default of cular Road, Kilmainham in the Thomas Joseph Stapleton of the Gazette), Blackhall Place, Dublin 7 the said notice of interest being county of Dublin of the one part, one part, and John Kenny of the received, the applicant, Sheila and John Newport of 18 Marl- other part (the ‘lease’) for a term TITLE DEEDS McGinnity, intends to proceed borough Road in the county of of 900 years from 1 October In the matter of the Landlord with an application before the Dublin of the other part, for a 1934, subject to the yearly rent and Tenant Acts 1967-2005 and county registrar at the end of 21 term of 150 years at the yearly of one shilling and subject to the in the matter of an application days from the date of this notice rent of IR£20 from 1 May 1918. covenants and conditions therein by Sheila McGinnity, 17 Cathe- and will apply to the county reg- Take notice that the above- contained. dral Road, Cavan: in the matter istrar for the county of Cavan named applicant intends to sub- Take notice that Mark Dunne, of premises known as 17 Cathe- for such directions that may be mit an application to the county Denise Holland and Declan Quil- dral Road, Cavan appropriate on the basis that the registrar for the county of the city ligan intend to submit an appli- Take notice that any person hav- person or persons beneficially of Dublin for acquisition of the cation to the county registrar for ing an interest in the freehold entitled to the superior interest freehold interest in the aforesaid the county of Dublin at Áras Uí estate or any superior intermedi- including the freehold reversion premises, and any party asserting Dhálaigh, Inns Quay, Dublin 7, ate interest in all the premises situ- in the said property are unknown that they hold a superior interest for the acquisition of the free- ate at 17 Cathedral Road, Cavan, or unascertained. including the freehold reversion hold interest and all intermediate in the townland of Keadue, bar- Date: 4 June 2021 in the aforesaid premises (or any interests in the aforesaid prop- ony of Upper Loughtee, and town Signed: Michael J Ryan (solicitors of them) are called upon to furnish erty, and that any party asserting and county of Cavan (hereinafter for the applicant), Athbara House, evidence of title to the applicants that they hold the fee simple or called ‘the property’), the subject Cavan below named solicitors within 21 any intermediate interest in the matter of a lease dated 5 July 1936, days from the date of this notice. aforesaid property are called upon Lord Farnham to Arnold Lang for In the matter of the Landlord Take notice that, in default of to furnish evidence of title to the a term of 99 years from 1 May and Tenant Acts 1967-2019 and any such notice being received, said property to the below-named 1936, subject to a yearly rent of in the matter of the Landlord the applicant intends to proceed solicitors within 21 days from the 62 PROFESSIONAL NOTICES June 2021 Law Society Gazette gazette.ie

date of this notice. plan annexed to a lease dated 31 In default of any such notice October 1933 between Charles being received, Mark Dunne, Humphreys Peare of the one part TO LET Denise Holland and Declan Quil- and Denis John O’Driscoll of the ligan intend to proceed with the other part for a term of 99 years OFFICE SPACE – THE CAPEL BUILDING application before the county reg- from 1 May 1933 at a yearly rent from 300sq.ft. to 7,500sq.ft istrar at the end of 21 days from of £10 per annum and thereon the date of this notice and will edged red; and (ii) an additional apply to the county registrar for portion of land situate at the rear the city of Dublin for directions as of the property at (i) consisting of may be appropriate that the per- an outdoor area used by custom- son or persons beneficially enti- ers of ‘The Gate Bar’, which has tled to the intermediate interests, been incorporated into the prop- 01 872 0892 • [email protected] including the fee simple in the erty at (ii) by encroachment over PSRA Licence: 001870 aforesaid property, are unknown many years so as to enlarge the or unascertained. extent of the property held under Date: 4 June 2021 the lease. Signed: Donal M Gahan, Ritchie & Take notice that Nora Keegan, Co (solicitors for the applicant), 36 as tenant under the said lease, Lower Baggot Street, Dublin 2 intends to submit an application to the county registrar for the In the matter of the Landlord county of Tipperary for acquisi- and Tenant Acts 1967-2020 and tion of the freehold interest in the in the matter of the Landlord aforesaid property, and any party and Tenant (Ground Rents) (No asserting that they hold a superior 2) Act 1978 interest in the aforesaid premises Take notice that any person hav- (or any of them) are called upon ing any superior interest (whether to furnish evidence of their title to by way of freehold estate or oth- the aforementioned premises to erwise) in the following property: the below named within 21 days (i) all that and those the licensed from the date of this notice. house and drapery premises In default of any such notice known as ‘The Gate Bar’, situate being received, the applicant for the county of Tipperary for unknown or unascertained. at Westgate in the town of Car- intends to proceed with the directions as may be appropriate Date: 4 June 2021 rick-on-Suir, in the barony of Iffa application before the county on the basis that the persons ben- Signed: Michael A O’Brien & Co and Offa East, and county of Tip- registrar at the end of 21 days eficially entitled to the superior (solicitors of the applicant), Lee perary, as more particularly delin- from the date of this notice and interest including the freehold House, Strand Lane, Carrick-on- eated and described on the map or will apply to the county registrar reversion in the premises are Suir, Co Tipperary

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PRO BONOBO

THE NAME’S BOND… BASILDON BOND The Leicester Mercury reports that police succeeded in captur- ing a man after an eight-mile canal boat chase – at 4mph. An officer followed on his bike, while colleagues staked out a canal lock. As soon as the sus- pect got off to open the lock, the trap was sprung by officers hid- ing in the bushes. The pursuing peeler tweeted, celebrating the logging of his low-speed life-goals: “For 15 years I’ve been trying to tick off a water-based pursuit in land- locked Leicester, and today I’ve ticked it off.” The Twitter response from a local joker: “I like to think it was like the boat chase in James Bond’s Live and Let Die.” BIRD- BRAINED BULLET TRAIN STEAMS INTO STATION A Japanese train driver faces conductor, who did not have a ney was incident free, the rail- BANDITS possible punishment after he left driver’s licence, into the cockpit way company reported it to Two men known as the ‘Big Bird the controls of a speeding bullet to man the controls – and then the authorities and apologised. Bandits’ who allegedly stole a Ses- train for several minutes for an left for about three minutes to Company rules state that if driv- ame Street costume from a circus urgent toilet break. use the lavatory in a passenger ers feel unwell, they must con- in Adelaide, Australia, have been The BBC reports that the cabin. tact their control centre. They tracked down and charged, The driver had suffered stomach The train was carrying 160 are allowed to ask a conductor to Daily Mail reports. cramps and needed to use the passengers and was travelling take over, but only if they have The 213cm-tall bright-yel- toilet urgently. He called a at 150km/h. While the jour- a licence. low Big Bird costume, made of ostrich feathers and valued at AU$160,000 (€101,550), disap- FINALLY FACING MY WATERLOO peared, but was found dumped The Franco-Belgian border, estab- Erquelinnes had been moved near the outskirts of the circus the lished after the Battle of Waterloo, 2.29 metres. following day. was inadvertently redrawn by a The village mayor said that The alleged thieves left behind farmer who moved a 200-year-old the farmer was legally obliged to a note in the beak, apologising for border stone because it was in the move the stone back, so as not the trouble they had caused: “We way of his tractor. “to create a diplomatic incident”. were just having a rough time and The Guardian reports that the If the farmer fails to comply, a were trying to cheer ourselves up. Belgian farmer could theoreti- Franco-Belgian border commis- We had a great time with Mr Bird. cally face criminal charges after sion, dormant since 1930, may He’s a great guy and no harm making his country bigger: the have to convene to settle the came to our friend.” 1819 marker near the village of exact boundary. How will discovering your purpose help us to realise ours?

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