ISSN 1393−6956 ga 07
9 771393 695029 Glynn talkstotheGazette and wheelchair-user Aisling Kilrush-based solicitor In hershoes The proposed Summary Rescue Process REFORMATION: EXAMINERSHIP LAW SOCIETY
scheme inarbitration? need avoluntarycosts-limitation Does theconstructionindustry Constructive argument ette parity onlyataglacialpace but weare approaching gender Diversity isimportantinADR, Gender fenders € 4.00
JULY 2021 gaLAW SOCIETY ette
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PRESIDENT’S MESSAGE TRUSTING INSTITUTIONS
ransparency International rates from solicitors whose clients’ accounts exceed Ireland in 20th place out of 180 €1 million. It appears that banks believe that countries in its Corruption Per- solicitors are high-net-worth individuals when ceptions Index (2020) – a measure they hold someone else’s money in trust! of public-sector corruption globally. I attended with one brave solicitor, Michael Ireland’s score was 72 out of 100 – Collins from Portumna in Co Galway, who got down two points from the previous year. It is our a Circuit Court injunction on this issue and lowest mark since 2014. Britain came in at 11th place a refund from the Bank of Ireland. The Law Twith a mark of 77. New Zealand was ranked in first Society has issued directions to our members place, with 88 marks. in an effort to soften the impact of solicitors There is no reason why Ireland cannot occupy breaching the Solicitors Accounts Regulations, yet first place in international transparency with all solicitors must ensure that a debit appearing as little corruption as possible, and I believe on the client account due to these charges is that lawyers have a very important part to play balanced up immediately. in achieving that goal. We must insist that institutions are honest, and call on the power Anti-trust preliminary ruling of truth when encountering dishonesty – and The European Commission, in a recent particularly perjury. The public is expected to be ‘anti-trust’ preliminary ruling, has found that truthful, as emphasised by the proliferation of certain motor insurers restricted competition statutory declarations. in the Irish market by preventing proposed Many solicitors who have taken actions against newcomers from accessing their Insurance Link an arm of the State have had the experience of platform – a data-sharing system administered receiving affidavits that can be far from truthful. by Insurance Ireland. We know that the spin Hopefully the Criminal Justice (Perjury and Related Offences) Bill 2018 (when enacted) will ensure that we can, once more, begin to rely on affidavits, including those sworn on behalf of institutions, WE MUST CALL ON as being truthful. THE POWER OF TRUTH To the ends of the earth Lawyers are expected to be truthful – their WHEN ENCOUNTERING obligation to be honest “extending to the ends of the earth” (as stated by former President of the DISHONESTY High Court Mr Justice Peter Kelly) – so institutions themselves, and their staff, must be completely from these insurance companies is selective, honest. A properly functioning country must be and that they take advantage of their dominant free from corruption. position to disempower claimants and consumer The Garda Síochána (Powers) Bill, in its current alike when it suits them. form, would allow for easier arrests, and would Motions coming before Council of the make it illegal, for example, for a person to refuse to Law Society in July include a recognition and disclose their telephone passcode, without the need affirmation that the standard of proof in all for a search warrant. To gain acceptability by the regulatory matters is the criminal standard, public, our police force must be truthful at all levels. and that the burden of proof lies with the As you know, banks have introduced negative complainant. This will bring the Law Society
interest charges for high-net-worth individuals. into line with all other prominent regulatory JAMES CAHILL, By September 2021, they will collect their charges bodies. PRESIDENT 2 CONTENTS??????? ?????? July 2021 Law Society Gazette gazette.ie PIC: ALAMY LAW SOCIETY GAZETTE • Vol 115 No 6 In her shoes Constructive argument Gender fenders Volume 115, Kilrush-based solicitor Does the construction industry Diversity is important in ADR, and wheelchair-user Aisling need a voluntary costs-limitation but we are approaching gender Glynn talks to the Gazette scheme in arbitration? parity only at a glacial pace number 6
gaLAW SOCIETY ette€4.00 JULY 2021
July 2021
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No material from the Gazette may be published or used without the permission of 42 34 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. 54 gazette.ie Law Society Gazette July 2021 CONTENTS 3
FEATURES
22 Renaissance and reformation 34 Building power With so many good businesses shut, the cash-flow drain The new All-Ireland Arbitration Rules 2020 were designed to caused by COVID closures has focused attention on the take account of the UNCITRAL Model Law on Arbitration. effectiveness of examinership and its usefulness across However, the lack of a costs-limitation scheme is a missed business sectors. Barry Lyons hammers it out opportunity. Tom Wren uses the Force
28 Walk in my shadow 38 Scales of justice Disability is often the forgotten frontier when it comes We are no longer debating whether diversity is good for to diversity and inclusion, Aisling Glynn tells the the legal profession and for ADR. Susan Ahern and Alison Gazette’s Mary Hallissey. But at her solicitor’s desk, she Walker analyse the numbers of women arbitrators and feels independent, self-reliant, and free mediators that have been appointed in recent years
42 Pay it forward New York lawyer Domenic Cervoni talks to the Gazette about the challenges he faced when his wife Barbie was diagnosed in 2016 with a very rare cancer
6 38 50
REGULARS
4 The big picture 50 News in depth: The pandemic has effected large-scale Standout photo of the month digital transformation, this year’s In-House and Public Sector Committee panel discussion heard 6 54 News in depth: Celebrating 86 years of the Dublin People Solicitors’ Bar Association 58 Human rights: Do two landmark cases in Malawi mark 10 News the death knell for the death penalty there?
17 Comment 60 Briefing 17 Ask an expert 60 Council report: 11 June 2021 18 Book reviews: Building the Irish Courthouse and 61 Practice notes Prison: A Political History, 1750-1850 and Adomnán’s 65 Guidance notes Lex Innocentium and the Laws of War 67 Regulation
48 Analysis 69 Professional notices 48 News in depth: 12 solicitors to be granted patents of precedence 72 Final verdict 4 IN FOCUS July 2021 Law Society Gazette gazette.ie
THE BIG PICTURE
FISHERMAN’S BLUES Angry fishermen took their trawlers to Dublin’s River Liffey on 23 June to protest against the lack of Government support in relation to the EU’s Com- mon Fisheries Policy, in what appears to be a replay of the mistakes made
PIC: LEAH FARRELL/ROLLINGNEWS.IE in the early 1970s. Back then, Ireland conceded a high level of access to Irish fish stocks to other EU member states, particularly France and Spain. It is estimated that, since Ireland joined the EU, the value of fish caught in Irish waters by trawlers from other member states is twice that of all the grants and supports paid to the Irish State over the same period gazette.ie Law Society Gazette July 2021 IN FOCUS 5 6 PEOPLE July 2021 Law Society Gazette gazette.ie THREE LITTLE PIGS VS THE BIG BAD WOLF ALL PICS: CIAN REDMOND
Pupils from St Francis Xavier’s School took part in Street Law trials (see news story, p13) on 4 June, I'll huff and I'll puff run by the Law Society’s Mary Ann McDermott
On Jury Lane It’s the wolf, it’s the wolf!
Red Riding Hood to the rescue... Can he fix it? gazette.ie Law Society Gazette July 2021 PEOPLE 7
Round and round the garden
Pinky swear This little piggy went ’all the way home’ via video link
Yes sir, yes sir Whoops again 8 PEOPLE July 2021 Law Society Gazette gazette.ie
A pocket full of posies Cowabunga!
Who’s afraid of the Big Bad Wolf? Sufferin’ succotash! Heavens to Murgatroyd!
Street gang gazette.ie Law Society Gazette July 2021 PEOPLE 9
Girls and boys come out to play Yes we can!
Eat my shorts Three musketeers
Ring-a-ring-a-rosies Th-th-th that’s all folks 10 NEWS July 2021 Law Society Gazette gazette.ie SOCIETY SEEKS FORMATION OF STATE MAINTENANCE AGENCY n A Law Society submission cific clearance from the pro- to the Oireachtas has said that posed agency when seeking to children should not suffer because administer estates, a parent chooses to ignore their • Where the maintenance debtor obligations to provide for their has passed away, the arrears basic needs. become payable to the agency, The Society says that it is nei- and ther “reasonable nor realistic” to • Imposition of penalties and expect that lone parents should interest on arrears, similar to bear the primary burden of seek- those applying to tax arrears. ing maintenance from the other parent – and that a dedicated Sanctions, such as the withholding agency should be established for of a passport or driving licence, this purpose. and powers to recoup mainte- The Society says that the for- nance from future assets (includ- mation of a child maintenance • Act as the collecting agent ery of arrears are “hugely prob- ing pensions) are also mooted. agency is now critical in order to for maintenance payments in lematic” and will require careful assist parents in resolving main- appropriate cases, and consideration. ‘Reasonable level’ of support tenance disputes. Such an agency • Engage in the enforcement of “What is clear is that, absent While the primary obligation would take on the burden of pur- maintenance and the collection a robust system of enforcement, for the maintenance of children suing and/or enforcing mainte- of arrears. child-maintenance arrears will rests with their parents, the child nance payments and should have continue to be massively prob- has a right to a reasonable level statutory powers to engage with The agency would require ade- lematic, and will continue to of financial support and mainte- other State organisations, such as quate resourcing of services for result in ongoing losses to the nance, the Law Society says. the gardaí and Revenue. the amicable resolution of dis- State, to lone parents and – most It is a matter for the State to The Law Society suggests that putes, the Law Society says. importantly – to children,” it take reasonable steps to ensure the dedicated agency should: Varying circumstances, such says. that this right is vindicated, and • Provide guidance on appropri- as the income and expenses asso- A robust regime of powers to eliminate or alleviate child pov- ate levels of maintenance, ciated with second families, are could include: erty to the best extent possible. • Assist parents in reaching complex issues that will require • No statute of limitations on The Law Society has made its agreed arrangements, due consideration and compara- maintenance arrears – that is, a submission as part of the public • Assist in (or, where appropri- tive analysis with other jurisdic- lifetime liability extending to a consultation on child mainte- ate, bring) court applications to tions, the paper adds. charge on a maintenance debt- nance, which is being conducted determine maintenance, when The Law Society acknowledges ors’ estate, by the Child Maintenance Re- in dispute, that enforcement and the recov- • A requirement to obtain spe- view Group. SMALL PRACTICE TRAINEESHIP GRANT SCHEME n The deadline for applying for firm over the course of the two- our 2020 round, the inaugural • Be located outside of the city the Law Society’s 2021 Small year training contract, and funding year of the scheme, with positive and county of Dublin and the Practice Traineeship Grant of €7,000 to the trainee solicitor by impacts shown for both firms urban districts of Cork, Limer- scheme is Friday 2 July. way of a discount on the PPC1 fee. and trainees. The Small Practice ick and Galway, Now in its second year, Chair of the Law Society’s Edu- Traineeship Grant scheme marks • Be a small firm, consisting of the scheme is worth a total of cation Committee, Richard Ham- continued progress of the Law five or fewer solicitors (includ- €125,000 and aims to assist with mond SC, said: “This can make Society’s commitment to improv- ing principal, partners, con- the cost of employing a trainee a real difference to a rural prac- ing gender equality, diversity and sultants and employed solici- solicitor and to boost smaller tice’s ability to continue to pro- inclusion in the solicitors’ profes- tors), and solicitor practices outside the vide a much-needed service, and sion.” • Agree to pay the trainee at main urban districts of Dublin, trusted expert advice, to support To be applicable for the grant, least the living wage (currently Cork, Limerick and Galway. businesses and residents in their the trainee solicitor candidate €12.30 per hour). The Society awards five grants local community. We are particu- must have passed all eight FE1 of €25,000 each. This includes larly encouraged by the feedback exams, and the proposed training Applications can be submitted on funding of €18,000 to the training received from grant recipients in contract firm should: the Law Society website. gazette.ie Law Society Gazette July 2021 NEWS 11 PASS ON TEST-CASE BENEFITS, CENTRAL BANK TELLS INSURANCE COMPANIES n The Central Bank has told “Insurers should not insist on insurance companies not to force policyholders pursuing a mul- all holders of similar policies tiplicity of legal actions dealing to take legal action in order to with similar issues,” she added. benefit from test cases linked to business interruption claims. Other firms Earlier this year, the High The Central Bank said that it Court ruled in favour of four pub also expected insurers to look owners involved in a test case at the outcomes of legal actions against insurance group FBD. linked to policies offered by The publicans had made claims other firms with similar business for losses due to business inter- interruption clauses, and to give ruption as a result of COVID-19 the benefit of those outcomes to restrictions. FBD had originally its policyholders where appro- argued that the policies did not priate. cover events such as the pan- A supervisory framework doc- demic. customers, insurers should make not be acting fairly, and in the ument, COVID-19 and Business sure that all customers received best interests of its customers, Interruption Insurance, published Wider impact that benefit. if it does not give the benefit of by the Central Bank last year, On 11 June, the regulator said “If an insurance policy is inter- that outcome to other similarly said that the term ‘legal action’ that, in cases where the final out- preted in any legal action in a placed policyholders,” the bank’s included arbitrations, proceed- come of a legal action taken by manner favourable to policy- director of consumer protection, ings before the courts, and cases customers would have a wider holders, the Central Bank is of Gráinne McEvoy, said in a letter before the Financial Services and beneficial impact for similar the view that an insurer would published on its website. Pensions Ombudsman. SOCIETY CALLS FOR DONAL O’DONNELL URGENT REFORM OF NOMINATED AS NEW EASEMENTS LAW CHIEF JUSTICE n Supreme Court judge Donal O’Donnell is set to become the next Chief Justice after the Gov- ernment approved his nomination on 28 May. Subject to appoint- ment, he will replace Chief Justice Frank Clarke, who will step down later this year, upon reaching the retirement age of 70. The Government had set up an advisory committee to invite and n The Conveyancing Commit- is available at www.lawsociety.ie/ consider expressions of interest in tee has made a submission to submissions. the position before making recom- Government calling for further The committee, in partner- mendations. In 1995, he was appointed a reform of the law on easements. ship with Law Society Profes- Mr Justice O’Donnell was born senior counsel, and he has prac- This is in light of the upcoming sional Training, is also running in Belfast and was educated at St tised in all of the courts of Ireland, deadline of 30 November 2021, an online webinar (‘Registration Mary’s CBS, UCD, King’s Inns in the Court of Justice of the EU, by which certain easements must of easements – a ticking clock’) and the University of Virginia in and in the European Court of be registered. from 3-5pm on Thursday 8 July. the US. He was called to the Bar Human Rights. The May 2021 submission, The cost is €135. Members can of Ireland in 1982, started practice He was a member of the Law titled ‘Urgent need to review register at www.lawsociety.ie/ in 1983, and was called to the Bar Reform Commission from 2005 the law relating to easements’, easementswebinar2021. of Northern Ireland in 1989. to 2012. 12 NEWS July 2021 Law Society Gazette gazette.ie
ENDANGERED LAWYERS GEDI LAUNCHES ABDULLAH AL-SHAMLAWI, BAHRAIN PIC: SHUTTERSTOCK NEW POLICY
Al-Shamlawi has practised law no charges. The decision to pros- for more than 40 years. He is ecute him almost two years later, The launch of the Society’s GEDI Task Force in 2019 known in Bahrain for his defence even though others who at the of prominent opposition figures, time had posted the same misin- n An information session on the was launched in 2019. including Sheikh Ali Salman, the formation were not charged, indi- Law Society’s Gender Equality, Representatives from the imprisoned leader of Bahrain’s cated an apparent determination Diversity, and Inclusion (GEDI) centre were guest speakers at largest opposition group, al- to punish al-Shamlawi under any policy took place on 16 June. the online information session, Wefaq. On 22 March, his licence available pretext, according to The policy, which is now avail- which covered the importance to practise was revoked for one the director of the Bahrain Insti- able to members at lawsociety.ie, of an effective policy on diver- year, amid a government crack- tute for Rights and Democracy was developed by the Irish Cen- sity and inclusion, adapting the down on defence lawyers and (BIRD). For this 2018 tweet, he tre for Diversity as a result of a GEDI policy to meet the needs other prominent civil-society fig- was found guilty of “deliberately recommendation from the Soci- of workplaces, and ‘Policy in ures. causing inconvenience to oth- ety’s Gender Equality, Diversity, action – from policy to a lived The decision by the Lawyers’ ers by using telecommunication and Inclusion Task Force, which document’. Disciplinary Board to prohibit al- devices”. Shamlawi from practising came The complaint was filed by ECO-LAW MOOC MOST six months after a judge gave the justice minister, in which he him a suspended sentence over claimed that al-Shamlawi had vio- SUCCESSFUL YET two posts published on social lated the Lawyers’ Code by post- n Over 4,000 students are par- media. The disciplinary board ing personal views on Twitter. ticipating in the seventh annual is comprised of lawyers and The penalties for infringing the massive open online course judges appointed by the justice code include warning, reproach, (MOOC) in environmental law minister. prevention from practising as a and climate change, delivered by Prior to the court decision, he lawyer for a period not exceed- the Diploma Centre team this had been sentenced to two years ing three years, and permanent May, June and July. in prison over two tweets on cancellation of the licence to The MOOC provides a short, his personal account. In a 2019 practice law. incisive overview of the legal and tweet, he expressed his personal Prior to the court verdict, BIRD ethical considerations for those opinion on fasting, whereafter and Human Rights Watch issued a involved in environmental law he deleted the tweet and apolo- joint statement that the Bahraini and the environmental and con- gised to everyone who did not authorities should not contest his servation spheres. accept his point of view. For this, appeal. The Bar Human Rights The participants hail from 50 he was found guilty of “inciting Committee of England and Wales countries, with students from the hatred of a religious sect”. also raised its concerns regard- United Arab Emirates, Argen- In a 2018 tweet, he com- ing the prosecution and judi- tina, Australia, Belgium, Brazil, This year’s MOOC boasted mented on an article in a news- cial harassment of lawyers and Canada, Switzerland, France, an exceptional programme of paper, in which he incorrectly human-rights defenders in Bah- Britain, Greece, Hong Kong, talks and live Q&A sessions, with said that the Bahraini featured rain, including al-Shamlawi. Ireland, Israel, India, Italy, Japan, a host of expert speakers. The in the article was a naturalised Jordan, Lebanon, Luxembourg, MOOC remains open until 30 South Asian. Prosecutors inter- Alma Clissmann is a member of the Malaysia, Nigeria, Netherlands, July, so there’s still time to regis- viewed al-Shamlawi about the Law Society’s Human Rights Com- Pakistan, Portugal, and the Turks ter. Join at mooc2021.lawsociety. tweet at the time, but brought mittee. and Caicos Islands. ie and obtain eight hours of CPD. gazette.ie Law Society Gazette July 2021 NEWS 13 LOOPY LUPUS ACQUITTED IN ATTEMPTED MURDER JUDGMENT SHOCKER! n There was a surprise twist in PIC: CIAN REDMOND the Three Little Pigs case at the St Francis Xavier’s Street Law Court on 4 June, when Alex T Wolf (aka ‘Big Bad’) was acquitted on all charges – including two for murder. A surprise witness for the defence was Ms Little Red Riding Hood, who had travelled from the US as a character witness. Rather persuasively, she described the gregarious and voracious canine as “a reformed vegan hipster living in Stoneybatter, Dublin 7 – his only vice being a craft beer on a Friday night”. The mock trial, DPP vs Big Bad Wolf, saw Mr Wolf accused of that he was called on several occa- who testified that he had found a The ‘outdoor classroom’ proj- attempted murder. The case was sions by Judge Treanor to restore toothpick belonging to Mr Wolf ect has now become a commu- the culmination of weeks of work order and to quell the “animal at the scene with matching DNA, nity effort, with local companies by over 30 primary pupils through behaviour” of certain members of and Mr Bob the Builder, whose donating various materials to the Street Law programme, run the public. workmanship in building the pigs’ improve the space for the chil- by the Law Society’s Mary Ann Mr Sean Hyde put a strong case homes was called into question. dren. McDermott and supported by for the prosecution, encouraging Celebrity witness, Ms Red The students proved that they John Elliot (Registrar of Solici- the jury to empathise and relate to Riding Hood, spoke about the had a great grasp of the legal tors). the last surviving Little Pig who, reformed character of Mr Wolf. issues, made timely objections, Street Law is a programme that owing to her tender years, gave She testified that, while Mr Wolf and illustrated a flair for the dra- adopts a practical approach that video-link evidence via Zoom. had been outside the 5km lock- matic. The school plans to con- taps into students’ interest in the Mr Andrei Dumitrean, for the down perimeter on the day in tinue with the Street Law pro- law and aims to promote legal defence, capably illustrated, how- question, he had good reason to gramme for many years to come literacy, access to law, and social ever, that there was insufficient be – he was urgently looking for – there are rumours of Rapunzel skills through learning about legal evidence to convict Mr Wolf ingredients to make a cake for her v Witch being set down for trial matters. The students started their beyond reasonable doubt. dear old Granny. Having had a in 2022. programme last April in a specially cold at the time – COVID wasn’t Embracing the spirit of Street created ‘outdoor classroom’, and mentioned – he had sneezed Law, Tánaiste Leo Varadkar (a dealt with topics such as natural Celebrity witness The witnesses for the trial and accidentally blown the pigs’ past pupil) donated a copy of the justice, the structure of the Con- included a distraught Mammy houses down. This may have been Constitution to each of the sixth- stitution, and how the court sys- Pig, who was supplied with mul- the crucial testimony that led the class students, together with a tem works. Courtroom practices tiple tissues during her testi- jury of 12 boys and girls to ulti- number of copies for the school included witness testimony, and mony, an investigating detective mately acquit him on all charges. library. how to make objections during a criminal trial. STREET LAW PARTICIPANTS 2021 Full legal team Mr Simon Treanor BL (Law Soci- Shivney Aggarwal, Maja Jack Fitzpatrick, Laragh Lily Melvin, Bobby Mitchell, ety) presided on the day. ‘Judge’ Burksaite, Rebecca Byrne, Gibson, Wyneth Gundran, Kasie Mooney, Ciara Moran, Treanor heard full legal teams Ben Carroll, Lily Christine Aaliyah Heeze, Jonah Huitema, Sophie Mullins Dowdall, Evie for both sides, including ‘solici- Conroy, Patrick Dayman, Seán Hyde, Ecaterina Ionesi, Murray, Amy O’Grady, Garry tors’, ‘counsel’, and ‘devils’. Garda Sarah Dolan, Matthew Downey, Ava Keegan, Seán Lawlor, O’Reilly, Caolan Raftery, Edward Carroll attended to ensure Andrei Dumitrean, Sophia Aoibheann Leonard, Killian Elizabeth Reilly, Oscar Sweeney, order in the outdoor courtroom. Dumitritsa, Caoimhe Dunne, McGrail, Grace McLoughlin, Niamh Tobin and Rory Toole. Emotions ran so high on the day 14 NEWS July 2021 Law Society Gazette gazette.ie COLLEAGUES RETIRE AFTER OVER 120 YEARS’ COMBINED SERVICE n Three long-standing Law Society employees are to retire this year, having clocked up more than 122 years of ser- vice between them. Colleagues and practitioners will miss the familiar faces of librarian Mary Gaynor, IT’s Veronica Don- nelly, and the Four Courts Office’s Paddy Caulfield.
Closing the book Head of library and information services Mary Gaynor is retiring at the end of July, after 42 years. Mary started in the library in 1979 and has held a variety of responsibilities, culminating in her current role in 2010. Mary Mary Gaynor Veronica Donnelly Paddy Caulfield also acted as executive editor of the Gazette from 1981 to 1991, her library team, and paid trib- puterisation of the membership rooms. He joined the Society recalling editorial board meet- ute to director general Mary database at the Society. In 1989, in 1977, doing clerical support ings with Michael V O’Mahony, Keane and Teri Kelly (director Blackhall was struck by light- work. He took a couple of years Charles Meredith, John Buck- of representation and member ning and the servers were blown out and then rejoined in 1988, ley, William Earley, Geral- services), both of whom have out. This led to a new data- working at the Four Courts. dine Clarke, Gary Byrne and been unwavering champions of base, which served the Society Known for his courteous and Eamonn Hall, some of whom, the library. for 25 years. Veronica was very efficient manner, he was always sadly, have passed away in recent Her future plans are fairly involved in the specification, very clear on when he ‘needed years. loose, Mary says, but they implementation and monitoring a room back’! Paddy oversaw Library services have changed include more family time, travel of this database and in process- the extensive renovations and vastly over the past four decades, when COVID permits, enjoying ing the annual practising certifi- upgrading of the Four Courts’ including the move to an online the English classics, discovering cates. This information was vital facilities to its modern format in catalogue and the digitisation more new authors, and learn- in the production of the Law 2012. The Society’s computer- of the judgments collection, as ing French. “Whatever else Directory. ised booking system never could well as the Society’s institutional freedom from work throws up, “I have enjoyed greatly work- quite match Paddy’s knowledge: archive. bring it on!” joked Mary. ing in the Law Society with all “I almost knew which room each This project provided oppor- of the many colleagues, some of solicitor wanted before they tunities to investigate its his- Bolt from the blue whom have become friends for booked it!” he quipped. tory, and we all learned more Computer services manager life. I have enjoyed it, but I’m After a total of 53 years in the about the first president, those Veronica Donnelly is logging looking forward to my retire- workforce, Paddy is looking for- who died in World War I, and off in July, after an incredible 47 ment, to having more free time, ward to the break: “I will miss the first women to qualify as years. Veronica has had a variety and to spending more time trav- the people and the interaction, solicitors. “It was a joy to work of roles. She worked in educa- elling when the restrictions are but not the work!” he joked. “I on these projects and to engage tion and has been secretary to lifted,” she told the Gazette. would like to thank all of the with members and their fami- several Society committees. members of the profession for lies,” said Mary. When she joined the education Need that room back their constant courtesy in all our The core of the library work section, it only had a staff of After almost four decades, Four dealings,” he said. “Thanks, too, is legal research, and Mary owes two, dealing with apprentices, Courts manager Paddy Caul- to the secretaries who do the a huge debt of gratitude to her helping with exam and related field will finally lock up on 26 room bookings, for all their help predecessor, Margaret Byrne, queries, and with admission to August, when he turns 65. and cooperation over the years.” who generously shared her the Roll. Paddy is a familiar face to the We wish our retiring col- knowledge and expertise. Veronica moved into the IT more than 12,000 annual users leagues a happy, healthy, and Mary is immensely proud of section in 1981, with the com- of the Four Courts’ consultation long retirement. gazette.ie Law Society Gazette July 2021 NEWS 15 FIRE UP YOUR TRACKER FOR THE VIRTUAL CALCUTTA RUN! n Not to be outdone by a global pandemic, the Calcutta Run organisers have confirmed that the Virtual Calcutta Run will take place from 17-26 September. Members of the profession, their families and friends will, once again, have the opportunity to fundraise together – virtually – by running, walking or cycling a collective 10,000km, represent- ing the distance from Ireland to Kolkata. Following on from the suc- cess of the 2020 Virtual Run, 10,000km10,000km which saw €300,000 raised for those experiencing homeless- toto go!go! ness in Ireland and Kolkata, the same target has been set this year to support the great work of the Participants can register indi- will allow us to track the distances Why not follow your col- Peter McVerry Trust and The vidually or with their firm’s team, achieved to ensure we complete leagues progress, post photos of Hope Foundation. participate locally in their area the virtual distance to Kolkata. It your own route on Strava, and get in their own time, or in smaller should be said that, in 2020, partic- to know other interesting exercise groups if their firm has reopened ipants not only got to Kolkata but routes? WICKLOW their office – pending the lifting made it all the way back to Ireland! To take part, register at www. of restrictions. As well as everyone uniting to calcuttarun.com/virtual-calcutta- ELECTS Distances can be tracked on raise funds for these vital causes, run-2021-sign-up. a variety of apps, such as Fitbit, it is hoped that participants will We hope to have 50 teams par- NEW Strava and Garmin, which are use the event to get fit after a busy ticipating, with 1,200 individual connected to the Calcutta Run summer and continue with a daily participants, so please spread the PRESIDENT idonate.ie fundraising page. This fitness routine. word! NEW SOLICITOR SCs NOMINATED n The Government has Geoffrey Shannon, Helen ing, Ronan Lupton, Elizabeth approved the granting of patents Sheehy, and Keith Walsh (see Maguire, James McGowan, of precedence to 12 solicitors and p48). Barra McGrory, Brian McIner- 25 barristers. This is only the The 25 barristers are William ney, Yvonne McNamara, Seamus second time that solicitors have Abrahamson, Ray Boland, McNeill, Suzanne Murray, been able to apply to become Conor Bourke, John Byrne, Tom O’Malley, Aillil O’Reilly, senior counsel. They join the 17 Dermot Cahill, Oisin Collins, Philipp Rahn, Cathy Smith, solicitors who were approved in Ruth Fitzgerald, Robert Fitz- Fintan Valentine, Andrew 2020. Of the 12 approved this patrick, Tom Flynn, Ted Hard- Walker, and Carsten Zatschler. Following the AGM of the Wick- low Solicitors’ Bar Association, held year, all are based in Dublin and via Zoom on 12 May, Damien Conroy five are women. Only five of (partner, Augustus Cullen Law) was the 25 barristers who have been SOCIETY SHORTLISTED elected president of the association. approved are women. n The Law Society of Ire- through the GEDI initiative. He replaces the outgoing president Paul McKnight (Felton McKnight). The new solicitor SCs are land has been shortlisted in the The awards are held to recog- Brian Robinson (managing partner, Raymond Bradley, Geraldine annual Chambers Ireland Sus- nise and celebrate best practice Benville Robinson Solicitors) was Clarke, Nicola Dunleavy, Ali- tainable Business Impact Award in sustainable development and also elected to the new role of vice- son Fanagan, Larry Fenelon, for its work in promoting gen- social responsibility undertaken president. Mark Maguire (Maguire McNeice Solicitors) was appointed Stuart Gilhooly, Damien Keogh, der equality, diversity and inclu- by companies of all sizes across honorary secretary Conor Linehan, Rachel Minch, sion in the solicitors’ profession Ireland. Locating missing beneficiaries & next-of-kin
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WELLBEING
Our ‘Ask an expert’ section deals with the wellbeing issues that matter to you WEIGHING UP MY CAREER OPTIONS I am an employed solici- What environment would suit job in a good firm’ or ‘set up your change. It can be quite an iso- tor in a medium-sized you? For example, do you work own practice’. Have you consid- lating and daunting time. You firm in the south of the better with many colleagues ered additional options? Could may find it valuable to work country.Q I enjoy my work and would around you, or on your own or your ideas and ambition be wel- with a career coach who could be seen as an expert. My fee income in a small team? What aspects comed in another law firm, or in- help you untangle and evaluate is good, clients are happy, and I get of your current work motivate house? If you have rejected these the options, so that you take on well with all in the firm. The and stretch you that you will options, what contributed to your the next step with confidence difficulty is that promotion is based want to keep? What would you thinking? and commitment. solely on length of service, as opposed like to let go of? Are you more From your query, it seems that to ability. I am ambitious and have interested in the business of you are in an exploratory phase of To submit an issue that you’d like lots of ideas regarding the business law or the practice of law? The career change, so I encourage you to see addressed in this column, end of the firm, but new ideas are answers to these questions will to investigate some of the options email professionalwellbeing@ met with reluctance – almost dis- help you create criteria against in more detail to enable a ranking lawsociety.ie. Confidentiality is dain. I would consider opening a which you can assess potential against your answers to some of guaranteed. new practice, but it is difficult to options. the questions I have suggested. This question was received leave ‘a good job’ in ‘a good firm’. You do not mention other You mention setting-up a prac- from a solicitor, and the response Please help! aspects of your life, and it is tice. Have you spoken to any col- was provided by Fiona McKeever, risky to examine career options leagues who can share their expe- a qualified lawyer now working Congratulations on without considering their riences and realities of setting up as an executive and leadership your successful career impact on family and personal a practice? You mention that your coach. Any response or advice pro- to date. You are in a relationships. How much addi- current firm promotes based on vided is not intended to replace Astrong position, having several tional time can you commit to service, rather than contribution, or substitute for any professional, years’ experience, together with a new role? It is likely that any and that your ideas have not been psychological, financial, medical, happy clients, ambition, ideas, significant change will require well-received. Have you consid- legal, or other professional advice. and a strong revenue position. the investment of more time – ered adapting the way you com- The Law Society provides a When faced with a career whether that is in developing municate your ideas to the benefit career advice and support service junction, it is useful to pause new professional relationships, of the firm? Can you put yourself that is free to members – www. and create an image of your- developing client business, in the shoes of the lead partners? lawsociety.ie/careers/advice-and- self in the future (say, in two marketing, and potentially the What is important to them? Can supports. to three years). It is valuable to responsibilities of invoicing, you link a promotion and your LegalMind is an independent ask: ‘what is important to me?’ debt collection, and financing a ideas to what they value? and confidential mental-health Here, I encourage you to business. What time and other My response includes some support available to Law Society focus less on titles or positions, resources are available to you? questions that a career coach members and their dependants, and more on the factorsUU rthatgre gnetn YouCt Cpresentalal lf lyouro fro situationLr aLwa inwy eywouldresr s texploreo t oV withVolou al nclientutnet whoeere or24 no hoursn a day, and can be con- need to be present in the future.FLF ALeither/orACC's' s Tterms: eTle e‘staylpe inhp aoh goodnoen eisIn contemplatingIfnofromrma taai ocareertino n Lor iLjobnie netacted at 1800 81 41 77.
Urgent Call for Lawyers to Volunteer on DurDinugri nCgo vCido-v1id9- 1F9LU AFCLrA igsC e eisx penexrpitee nrCiceingcai nalg dl a e fmdoeamnrda nfLodr faoour wro suery rsveicrevrsic sewsh iwtcho icw heV wjueso tju clsaut ncnaonttn meote mete wre itt howoitunhto yuot uyro ausr saisstsaisntcaence UUrUgrgerFgenenLt nAtC tCCa Cal'sl al fl Tolfl oref orlLe rLap Lawhawoyweyn eyreser sIrtn sotf o tVo rVmo Volauoltunilountente tLer ieron roen onn UUUrgrUrgegrengenten tCnt CtCa aClall laf lo flfolr of roLr LraL awLawawyyweyereysrers str o tsto oVt o VVo oVlouluolnunltunetnteeetere reor orno nonn We W aere a ares kainsgki FnqFguL aFqLluifFALAiaeldLiAfCi esACdo'' lsisCsc'oi stl oTi'c srTisTteo aerTelsne dael epnbldaephp rbrpihoashrtheronisrosontee tnrone s I ve tnoI l nufvIonInfltnueorfnemfotre omoeranrmr oatmn iraot eaigo tnaruielon gatLurin lobLaia nr Lsnibneisai snerLeisem rieonmteeolyt efolyr fFao Frd LFaL yFAdL AaoLACyr CoAC'rs 'Cs' sT ' TseT eTleelelpeplhephophonhoneone neI ne IInf noIfnforofmrormmramataitoatioinotni onL n LiLn inLieneinee halhf-adlaf-yd aoyn oFnL AFCLA’sC te’sl eteplheopnheo ninef oinrmfoarmtioanti oline li npero pvridoivnidgi nbga sbica sleicg laelg inafl oinrmfoarmtioanti.on. During Covid-19 FLAC is experiencing a demand for our ser vices which we just cannot meet without your assistance
DuDriunDrginu Cgrio nCvgio dCv-i1od9v-1i dF9-L 1FA 9PLC FAl eL iCsPaA eilsCsexe apei sexs preiex nsrpndiec inrynicedoginn uacygr io ndaeuge xd mra pee amdrnxeeadpsmn rsfdaeoio nrsf odnsr ui f oor nrfus r oeion ursvfter ei icrsnrveeitscresv ewrtisce ha eswinscth hdwai c whnahied cws h jahue ws ojstuer hcst j atouC ncsrVatn nocC tnato Vonm tn Di entmooueDfto ertDumi enw@urtigeDfirn otiw efhungCl@toiarg toCiwhun cvCfotig.lit daiouvhy eCi-ovtcd 1iouy.d-9io1vrte- i1u9Fyad9r osL-F 1 usaAFL9irssCLA satFA aCisiLsnCs t Aiacise sienC sxteca p exienespxc rpeieeerxinpreiceninrciigecni nngacg aidn a egd m deaema dmnaedanm ndfoad frn o fodor u rof rou srur eors ruesvreic vrseivcesiecr veswi schw eiwhcshi cw ihcwhh ewi c wejhue jswu tjus ects ajtcu nacsnant onctano mnot ntme omeett e mwet ietwt hewitothi tuwhotoui tyhut ooty uouyrout aury sora suasisr tisasaistsnastcaniesncteacence During Covid-19 WFeL AarCe aisk einxgp qeuraielifniecdin sgo liac itdoersm aannd db afrorirs toe ursr tsoe vrovliucnetese wr ohni cah r ewgeu lajur sbta scias nrenmoot tmelye efotr wa idthayo uotr your assistance half-day on FLAC’s telephone informa tion line providing basic legal information. W eW a eWr eae ra eas rkaeisn kagisn qkgui nqaguli faqieluiCdfaie lsaidfoiC nelsid coay ilstinoco riultysioc ovraitsoun ard lsvun bodnaa nltbruedrain serbtrraeis rwtersei srrtitos tewh trvos iou tlvthusoo n tlvutoeosnel tumterno eota renm keo arena or akean ger aeud galraiuef rfldg abeuirarf labseferiasn sbr crieasees nmri?esco merteo?mlyte o flWoyte rWfe l oyaW re a f d e oarWae r ard year a oe saydr kr as oienksyr igk anoi sngqrk g uqin aqugluaif iqaleifulidiefai edslid ofsie loiscdoli tclsoiicotroisltior csarit snoa drans ndb ad bn rbardiars rbrtirseaitsrrestrer istrot set ovrto sv loutvoolnu ltvuneonteelutre noert nero eonarn aro ea nrg e ruaegl guareulra glbaru arbl sabirsa ibssriea srms erisemo mtroeeotlmeyt elyfool ytfre o flaory radf oa dr y daa ayo dyro aory r or We are askihnaghlf -aqdlhufa-aadylf al-oiydfni aeo Fydn L oFsAnLoC FAl’isLCc Ait’tesCo letr’esspl e htaepolnhendopenh ibneoaf noinerrrf moisnraftmoetiroarmsntio altintoni oe livnn p oelril noupevrn iodptveirniodegvirn i bdgoai nnbsg iac asb liaecresg liegacgl u liaenlalgf oiarn rlfb moinarafmsotiiroasmnt ior.aentim.ono. tely hfaohlrhaf- aldaf-hlaf d-adydal afayo-y dno a onFyn Lr F oAFLnCLA FA’CsLC ’stAe’ sCtl et’elpse lhepteophlnehoepon hneinoe ifn oinferomf orinmarfmtoaioratminoti onalin tliieo nli nnep e rlpion prveori dovpivdnriodignvi ngbidg abin sbagicas ibscleia clgse laiegclga ilneal ifgln oianfrolmf orinmarfmtoaioratminoti.onan.tio. n. half-day o nP lFeaLsAeC s’esn dte yleouprh eoxnpere sinsfionr mo fa i ntitoe nre slitn aen dp rao svhidorint Cg Vb taos iincf ol@egflaalc .iineformation.
Pl ePal esPeal seseae snseed n sydeCo nuyadorn uye yrox oupeurx e pevsrxoseplisuorsenisto oesnfie ooirn fwt eionirft eehinsr teue sar tnet oadsnt mada nasahdk os eahr taos C rhdtVo Cirf tfV oeC rtiVnoef noitnoc@f eoin?f@[email protected] P lPe Plaels eaPeas lese as nseseden ndsyed oyn uoydrou eury xore puexrrpxe preserxsespiosrinseoi sonsn foi o iofnn fitn eointrefet erisnerttes eatsr ntae dans tnda ad asn a hds oh sarhot orsCthr VtCo C VrttoV Ct oitnVo ifn otinfo@of o@infl@[email protected]
Please sCeanCnda C ynyoa oyunuo vryuo o evluxo nplvutoreneletuserns etwiero iewtnhr i otwuhfsi tuithnso tu temosr aetmoks aetm k aaen k dadei f dafei fsdrfehifnrofecernetr ec?CneVc?e t?o [email protected] CCaCna anyCn oya uoyn ouv y uovo lovuuoln uvltnueonteleutren wert erwi tewhirt ihuwth sui tsuho st oumtos m a tmkoae akm ekaae adk a eidf fdiaefif rfedfeerinferfcenencr?ecene?c?e?
Can you volunteer with us to make a difference? 18 COMMENT Books July 2021 Law Society Gazette gazette.ie BUILDING THE IRISH 2021 Tax Publications COURTHOUSE AND OUT NOW PRISON: A POLITICAL
Capital Tax HISTORY, 1750-1850 Acts 2021 Richard J Butler. Cork University Press (2020), www.corkuniversitypress.com. Price: €39 (incl VAT). By Michael Buckley This is a wonderful book, a definitive explo- Pub Date: ration of many aspects – political (local and April 21 national), financial, and architectural – of ISBN: a dynamic period for the construction of 9781526513687 expensive, showpiece, public buildings. The author, a lecturer in the University of Price: €125 Leicester, refers to the early decades of the 19th century as a time of “frenzied architec- tural activity, driven mostly by intercounty competition and a desire to appropriate the The Taxation of most fashionable public architecture in a Companies 2021 period of comparatively lax grand jury regula- tion and abundant capital … 1818 marked the By Tom Maguire all-time peak for Irish gaol building, with no Pub Date: fewer than 18 different projects underway”. April 21 There were disputes over the location of ISBN: such buildings – not only within towns, but 9781526513717 also, in some cases, between them. It took a while, for instance, after the division of Tip- Price: €225 perary in 1836, to settle whether the assize town (with a new courthouse and prison) for the north riding would be Nenagh or Thurles. A determined, but ultimately unsuc- A detailed appendix sets out the archival Irish Income cessful, campaign was launched at about the resources available for the history of each Tax 2021 same time to move the seat of the Co Water- building, a treasure trove for those who may ford assizes to Dungarvan. be minded, or surely will be inspired, to carry By Tom Maguire The narrative is based on comprehensive out their own further research. Pub Date: research, and the author’s scholarly approach The illustrations are copious and excellent, June 21 is coupled with a prose style that is a pleasure showing designs and the original appearance ISBN: to read, in the tradition of Sir Charles Brett’s of the buildings, in their original street con- 9781526519993 Court Houses and Market Houses of the Prov- texts, and the author and publishers deserve ince of Ulster, an elegant and pioneering 1973 great credit for these and the overall produc- Price: €245 work. The historical account complements tion values of the book. the Irish Architectural Archive’s recent, sub- stantial, and up-to-date Ireland’s Court Houses Daire Hogan is a solicitor and a former president All titles available on (2019). of the Irish Legal History Society. BPrO Irish Tax Service To purchase a subscription, organise a free trial or request a remote demonstration, please email: [email protected] IF LIFE GIVES YOU LEMONS, WE’RE HERE TO HELP Order your copies today Consult a Colleague in total confidence bloomsburyprofessional.com Call us on 01 284 8484 A confidential free service from the DSBA. www.consultacolleague.ie gazette.ie Law Society Gazette July 2021 Books COMMENT 19
ADOMNÁN’S LEX SPECIALIST LEGAL TEXTS FROM INNOCENTIUM AND THE CLARUS PRESS LAWS OF WAR COMING SOON
James W Houlihan. Four Courts Press (2020), www.fourcourtspress.ie. €45 (incl VAT). Civil Litigation of Commercial If you should happen to be an aficionado of Fraud gripping true-life, historical, Irish-focused A practitioner’s action-adventure stories, then Lex Innocen- definitive guide to tium (Lex I) is a book you will want to read, issues in civil cases not just once, but over and over again. Such where allegations of is the treasure trove of unexpected, and fraudulent or dishonest conduct in electrifying, discoveries within its 200 or so business dealings are made. riveting pages. Author: Arthur Cunningham Recently published, Lex I is penned by Format: Hardback Price: €249 author and retired Irish midlands solici- tor James W Houlihan (MA, PhD) and Probation is a masterpiece in tale-telling. Houlihan and Parole in is an author who fits into that exclusive category:‘un écrivain qui connaît son métie’. Ireland: Law Yet Lex I is a book apart. It is not the dry and Practice academic tome one might assume, of inter- est only to historians, students, and seekers The first book to comprehensively of ancient laws. describe and This is the story of larger-than-life Irish- explain the workings of two key man Adomnán, ninth Abbot of Iona (also parts of the penal system – known as Eunan), who was born in Done- probation and parole. gal around 624AD. He was a man deter- Authors: Vivian Geiran and mined to change the way wars and battles Shane McCarthy were fought. atrocities committed by American soldiers Format: Paperback Price: €45 In 697AD, Adomnán, together with a during the Vietnam War. The details are RECENTLY PUBLISHED number of powerful and influential lead- fully described in Lex I, but are far too hor- ers, met in the petty kingdom of Birr, Co rific to be repeated here. The Offaly. (This happens to be the author’s Please don’t think that this is solely a hometown, where he ran a successful law story about killings, battles, slaughters, Enforcement firm for many years.) skirmishes, hostages and prisoners – though and Setting In Birr, Adomnán proposed the Cáin there are plenty of those, with vividly Aside of Adomnáin, which became known as the Lex descriptive examples. Innocentium (or Law of Innocents). It was Rather, it is the study of early Irish law, Contracts written with the objective of guaranteeing and of one determined and righteous man the safety of women, children and other who lived long ago. Adomnán decided he A comprehensive and in-depth non-combatants in times of war. “Ironi- wanted to make a difference in the Chris- analysis of the concepts and cally [this was] the single year recording tian world. He did not challenge the right principles at work in the area of the most incidents of violence [in Ireland]”, to go to war, just the rules by which battles enforcement and setting aside of states the author. were fought. contracts. And this is where the action and adven- Above all, the author strives to identify Author: Dr Albert Keating ture really start. The reader is led on a the rightful place of Adomnán’s law within Format: Paperback Price: €59 wild, spellbinding and sometimes terrify- the history of the laws of war and, in doing ing ride from the Greek to Roman wars, so, he reaches some surprising conclusions. the mass beheadings at Solomon’s Temple, This is an excellent, inspiring read for and the murders of women, children and everyone, and a real page-turner. clerics. The author also covers the First and John Morris is a retired Dublin city solicitor, www.claruspress.ie Second World Wars and the reprehensible living in Wicklow. Sensible Cyber Security
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This is because the and law enforcement to forensically perception exists that particularly smaller trace the criminal’s activities and gather What advice would you firms will handle some large transactions evidence to assist in their efforts to Qgive to a legal firm looking but are not necessarily equipped with reverse transfer of the funds, in addition to engage a digital forensics adequate security and are under- to finding and removing the compromise company? prepared to withstand a targeted cyber- on the affected email accounts. They should look to work with an crime attack. The most common attacks A more detailed breakdown of how organisation who specialises in IT security against small and medium sized legal a Phishing attack like this works is and governance and has specific high firms are phishing attacks undertaken available to read here: https://commsec. skills in digital forensics, as opposed to with a goal of committing invoice ie/2020/07/10/gone-phishing/ being a good security all-rounder. For redirect fraud. example, the head of the CommSec What this means is that if an attacker CommSec have a specialist digital forensics practice is is Colm has gained access to a solicitor’s email Qdigital forensics practise - Gallagher. Colm is an experienced account through a phishing attack, so, what can digital forensics do detective with a wide range of experience provide a suite of CommSec they have full access to all email on the for a legal firm? in the security and investigations industry. advanced Digital Forensics Services. 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The crimes the foundation in place for whatever contact [email protected] or call +353 1 536 7320 Case Review are usually only discovered when the action it turns out you need to take when Or call 01 536 7320. 22 COVER STORY July 2021 Law Society Gazette gazette.ie
Renaissance reformationAND
With so many good businesses shut, the cash-flow drain caused by COVID closures has focused attention on the effectiveness of examinership and its usefulness across business sectors. Barry Lyons hammers it out
BARRY LYONS IS A SOLICITOR SPECIALISING IN CORPORATE RESTRUCTURING. HE WAS CO-OPTED TO THE COMPANY LAW REVIEW GROUP IN ITS REVIEW OF THE EXAMINERSHIP PROCESS IN THE EXPECTATION OF POST-COVID BUSINESS DIFFICULTIES gazette.ie Law Society Gazette July 2021 COVER STORY 23 PIC: WIKIMEDIA COMMONS 24 COVER STORY July 2021 Law Society Gazette gazette.ie
AT A GLANCE n Five court applications are currently required to comply with the examinership process, adding to the costs associated with getting court protection n The Company Law Review Group’s submissions to the Department of Enterprise included a proposal for a low-cost, reduced process framework for dealing with latent liabilities n It is anticipated that the Small Company Administrative Rescue Process (SCARP) will be commenced with the enactment of the Companies (Amendment) Act 2021
n the simplest terms, where an expert Countless applications taking days to thinks it has a reasonable prospect of prepare (incurring significant costs on behalf survival as a going concern, examinership of examiners) are granted as a matter of gives an insolvent company breathing course, adding not a whit to the survival of space against the enforcement of debts, the company, and making no difference, save pending a scheme of arrangement being for satisfying obligations in the act. agreed by creditors and the court. Currently, there are at least five court he exit from examinership is usually applications required to comply with the clear to an experienced insolvency processes in an examinership. Each time, practitioner from the outset of the tests that are set out in the Companies instruction.T While the independent expert Act 2014 must be satisfied to the court’s will identify the most obvious elements evidentiary standard. This involves needed (I have never come across a case solicitors (and usually barristers) – and where investment, and a compromise of very much adds to the costs associated the balance outstanding to creditors are not with getting court protection and, two issues required), sometimes achieving thereafter, the examinership process. certainty around rescheduling bank These court applications prompted an liabilities, or repudiating onerous contracts, analysis of examinership – from preparing are required to enable the examiner to for the initial application for court certify to the court that the company has a protection (including the independent reasonable prospect of survival as a going expert’s report and consequent petition/ concern. statement of facts), to the examinership Despite its quirks, in its essence, the I process itself. examinership process is straightforward.
WHILE THERE IS A SCHOOL OF THOUGHT THAT A RESTRUCTURE IS A CHARTER FOR IMPROPER DIRECTOR CONDUCT, THIS IS ABSOLUTELY NOT THE CASE, AND SO THE MORAL HAZARD ARGUMENT AGAINST ALLOWING A SECOND CHANCE DOES NOT STAND UP TO SCRUTINY gazette.ie Law Society Gazette July 2021 ?????? ???????????????COVER STORY 25 PIC: ALAMY
This being so, why is it so procedurally complicated and, as a result, expensive? Put another way, do the complications add to the process – and if not, why are they there?
Post pandemic Small and medium enterprises (SME) promoters have had a torrid time in the past 12 years. Having recovered from the banking collapse in the late 2000s and the consequent absence of capital, they have been dealt another huge blow with COVID-19 mandated closures.
hile there is a school of thought that a restructure is a charter for improper director conduct, this Wis absolutely not the case, and so the moral hazard argument against allowing a second chance does not stand up to scrutiny. I have seen the stress etched into business owners’ faces, in the teeth of losing everything, including (typically very important for them) their employees’ livelihoods. All they want is for the business to survive, and if they can stay a part of it, all the better. There are typical scenarios: the absence of forfeiture actions suggests landlords are applying a light touch, foregoing rent collection. This reflects that their tenants are not trading and are unable to pay rent. Also, there are no alternative occupiers/uses for their premises. There may be revenue liabilities warehoused from before the first lockdown, and trade creditors remaining outstanding. Leasing and loan payments are likely not to have been made. By their absence of enforcement action on foot of these liabilities, SME creditors reflect the uncertainty of recovering their money at this time. 26 COVER STORY July 2021 Law Society Gazette gazette.ie
CLRG submissions A low-cost, reduced process framework FIGURE 1 for dealing with these latent liabilities is WORKED EXAMPLE OF A SMALL EXAMINERSHIP proposed in the October 2020 report of the CREDITOR LIABILITIES Company Law Review Group (CLRG), RECOVERIES which advocates a Summary Rescue Process Bank debt of €500,000 (SRP). This has been developed into the • Loan of €250,000 and property worth €250,000 ‘Small Company Administrative Rescue @ (say) 70% recovery €175,000 Process’ (SCARP), which it is anticipated will • Loan of €200,000 book debts a) Secured on assets worth €80,000 be commenced with the enactment of the @ (say) 50% recovery €40,000 Companies (Amendment) Act 2021. b) Remainder €120,000 recovery of book debts At the time of writing, the steps required in @ (say) 30% recovery €36,000 the SCARP are: • Overdraft of €50,000 @ (say) 10% recovery €5,000 1) The company procures a report from their Total recoveries of €256,000 (51.2%) insolvency practitioner (IP), whose content Retention of title creditors of €30,000 (@ 80%) €24,000 mirrors the independent expert report in Revenue examinership, including the IP’s view that • of which €20,000 is unsecured (10%) €3,000 • of which €30,000 is preferential (15%) €4,500 the company has a reasonable prospect of • of which €30,000 is super preferential (80%) €24,000 survival, subject to certain matters occurring, €80,000 2) The company issues a notice of cessation of €31,500 (39.38%) payments, advising its creditors it is entering Employee entitlements (preferential) €20,000 (@15%) €3,000 an insolvency process, Trade creditors of €120,000 (@10%) €12,000 3) Should the stakeholders oppose it (for Landlord €80,000 (@10%) €8,000 example, on the grounds that the process An uninsured claim pending of €60,000 (@10%) €6,000 is being invoked for improper means), TOTAL €390,000 €41,500 they can appeal the notice of cessation of payments to (it is envisaged) the Circuit The SRP therefore omits a number of steps At this time, one useful tool in examinership Court, otherwise required in examinership, namely: is omitted from the new scheme – the power 4) If protection from enforcement action by • No petition/hearing for the examiner’s to assume executive control of the company. creditors is required, there will be a fast- appointment – this means the notice for While not often invoked, this power being track application to court for protection directions and grounding affidavits are not available can make the difference when against sequestration or execution of required and, other than the initial report the scheme of arrangement is prepared for the liabilities, as currently occurs on the by the IP, there are no costs associated with approval. presentation of a petition/statement of facts initiating the process, in examinership, • No requirement to report to the court in A place for SCARP 5) The IP has 50 days in which to put together 35 days from the IP’s appointment, and In the absence of an efficient mechanism to a scheme of arrangement with the company • No requirement to file the report on the resolve the liabilities incurred by businesses members and its creditors, outcome of the meetings in court pending highlighted above, the supports being rolled 6) If opposed, the scheme of arrangement is a hearing on the outcome of creditors’ out by the State in response to the COVID-19 put to the court for its approval. meetings. lockdowns are blunt. Even if a business can
A LOW-COST, REDUCED PROCESS FRAMEWORK FOR DEALING WITH THESE LATENT LIABILITIES IS PROPOSED IN THE OCTOBER 2020 REPORT OF THE COMPANY LAW REVIEW GROUP WHICH ADVOCATES A SUMMARY RESCUE PROCESS gazette.ie Law Society Gazette July 2021 COVER STORY 27
THE COMPANIES ACTS NEED TO PROVIDE AN EFFICIENT, NON-JUDGEMENTAL FRAMEWORK FOR COMPANIES TO SURVIVE AND JOBS TO BE SAVED. THE DEVELOPMENT OF THE SCARP RECOMMENDATIONS, AS CONTAINED IN THE PROPOSED BILL, ACCOMPLISH THAT – AND NEED TO BE IMPLEMENTED URGENTLY access credit or investment, that money will the company. The guarantor will rely on their A fourth way not be best utilised if all it can be used for is to income from the company to discharge their There are currently two restructuring address historic liabilities, and not provide for obligation on the PG over time. options: a creditors’ voluntary arrangement its future cash-flow requirements. Therefore, the sum required to exit (CVA) and examinership. Taking the cost of With this process, there are more prospects from examinership will be the costs of the a CVA at €50,000 and examinership as set of wholesale recovery, albeit that the pain will examinership, plus the dividends needed to out above, including SCARP in the mix gives properly be spread across the economy. As discharge Revenue, employee creditors, trade a fourth option – an agreed outcome to the set out above, there are common categories creditors, and the uninsured claimant (see restructure, based on avoiding restructuring of debt across companies that have felt the figure 2). As can be seen from the comparison costs. impact of the lockdowns – between landlord, between the outcome of a restructure run Taking debts of €400,000 and investment Revenue, trade, and finance creditors. under examinership versus the SCARP, process of €120,000, these are the funds available to costs make a substantial difference in the funds creditors* (see figure 3). he fundamental test in examinership required to exit the restructure, particularly is that, if a scheme of arrangement where the amounts involved are relatively The solicitor’s role provides that a creditor gets less small. The reduced costs of the SCARP reflects As the first to be told of notifications of thanT they would if the company went into the exclusion of typically unnecessary steps. legal proceedings in respect of (for example) liquidation, they are unfairly prejudiced in the forfeiture of a lease or an intention to scheme, and it cannot be confirmed by the institute legal proceedings to recover a debt, court. It is proposed that the same test will be FIGURE 2 in many situations, the company’s solicitor provided for in the SCARP. will be first person outside the boardroom to Examinership SCARP In Figure 1, I give a worked example of a become apprised of its difficulties. Costs €70,000 €25,000 typical examinership case. Here, bank and Revenue €31,500 €31,500 retention of title creditors accept payment or the reasons set out above, the Employee €3,000 €3,000 when the business returns to turning over its SCARP will rebalance the power Trade creditors €12,000 €12,000 trade, with the bank rescheduling payments equation between the creditor and Landlord €8,000 €8,000 over a longer period. The bank will rely on Ftheir debtor, particularly in the light of the Uninsured €6,000 €6,000 personal guarantees (PGs) for any deficit ‘no blame’ nature of business difficulties Total required between the sum provided for in the scheme arising from the COVID lockdowns. The to exit €130,500 €85,500 of arrangement, and the amount owed by CLRG’s scheme provides that the same categories of professionals as are currently able to act as liquidators and examiners FIGURE 3 (which include solicitors) can act as the SRP process overseer. Process Cost Available for Percentage The Companies Acts need to provide an distribution dividend efficient, non-judgemental framework None €0 €120,000 30% for companies to survive and jobs to be SRP €25,000 €95,000 23.75% saved. The development of the SCARP CVA* €50,000 €70,000 17.5% recommendations, as contained in the Examinership €70,000 €50,000 12.5% proposed bill, accomplish that – and need to * Indicative only because no distinction drawn between entitlements of different classes of creditors. be implemented urgently. 28 PROFILE July 2021 Law Society Gazette gazette.ie
WALK IN MY SHADOW Disability is often the forgotten frontier when it comes to diversity and inclusion, Aisling Glynn tells the Gazette’s Mary Hallissey. But at her solicitor’s desk, she feels independent, self-reliant, and free
MARY HALLISSEY IS A JOURNALIST WITH THE LAW SOCIETY GAZETTE gazette.ie Law Society Gazette July 2021 PROFILE 29 ALL PICS: JOHN KELLY PHOTOGRAPHY
ilrush-based solicitor and wheelchair-user Aisling Glynn believes that there needs to be greater visibility of people with disabilities in the legal profession – because role models are important. As a wheelchair-user, there are many barriers that arise on a daily basis, including inaccessible buildings, poor footpath-kerb design, steps, and lack of accessible transport. More particularly, however, negative attitudes and perceptions or attitudinal barriers towards people with disabilities are still apparent. “We need to have honest conversations and K challenge our own biases and perceptions,” 30 PROFILE July 2021 Law Society Gazette gazette.ie
WHEN I BEGAN USING A WHEELCHAIR, THE WORLD CHANGED AROUND ME. APART FROM THE MORE OBVIOUS PHYSICAL CHALLENGES I FACED, WHAT I FOUND MOST DIFFICULT WAS THAT SOME PEOPLE LOOKED AT ME DIFFERENTLY AND TREATED ME DIFFERENTLY
Aisling says. Living with a disability can be That scary diagnosis – at 15 and in junior course, it’s not always easy, but giving up or challenging. It requires resourcefulness, cert year – was a life-changing event. feeling sorry for yourself isn’t the solution. determination and problem-solving. “On a “I realised that my physical abilities were I try not to worry about the future or what’s positive note,” she says, “these are skills that going to change, so I had to start focusing ahead, because I have no control over it. I can be particularly useful to a solicitor!” on what I could do,” Aisling reflects, adding prefer to focus on each day and on what I that studying gave her a focus that distracted can do,” she says. Heavy load from the enormity of what was happening. Aisling credits her teacher mother with “I had fallen and broken my leg the s a wheelchair-user, Aisling is reliant steering her towards the modern and easily summer after Leaving Cert, and it meant on others. But at her solicitor’s desk, accessible campus at the University of that I needed a wheelchair, and more help she feels independent, self-reliant, Limerick when she expressed a desire to and support. I would have stayed at home andA free. She is adamant that she doesn’t study law. and commuted to college, because the want to be defined by her disability. “When Her mother had the foresight to think thought of moving away was daunting, but I’m busy at my desk I’m least aware of my ahead about practical difficulties, once my parents wanted me to have the same disability,” she says. “I want to focus on my Aisling’s life began to change with the onset opportunities and experiences as my sisters.” abilities and on what I can do.” of a rare neuro-muscular condition in her Living with a disability makes you teens. appreciate the little things, she says. “Of Fire and water “When I began using a wheelchair, the world changed around me. Apart from the more obvious physical challenges I faced, what I found most difficult was that some people looked at me differently and treated me differently. “There can be an awkwardness. I think sometimes people view a wheelchair as a symbol of inability or incapacity. In fact, it allows me to function, to go to college, and to go to work. “We need to focus on people and on their abilities. People have asked me: ‘But how did you become a solicitor with the wheelchair?’ Someone else said: ‘Weren’t they very good to give you a job with the wheelchair’.” Aisling wants to challenge those negative perceptions and underlying prejudices. But there have been funny moments, too. “One day, I went to get my hair cut during lunch. While there, someone asked me what disability facility I lived in. An hour later, I was back at my office drafting a will. The gazette.ie July 2021 Law Society Gazette PROFILE 31
WHEN I’M BUSY AT MY DESK I’M LEAST AWARE OF MY DISABILITY. I WANT TO FOCUS ON MY ABILITIES AND ON WHAT I CAN DO client said to me: ‘I suppose you play a lot a daily basis, that arise from not being able practice strands, including personal-injuries of golf?’ The difference was: one saw the to do the things I could once do for myself. litigation, wills and probate, Workplace wheelchair, the other didn’t.” People don’t see the small things, such as Relations Commission (WRC) employment In court, judges or other solicitors have not being able to open a door or make a cup and equality law cases, enduring powers of sometimes presumed that Aisling was the of coffee. There is a reality to disability, and attorney, and complex litigation matters. plaintiff but, on the whole, her experience it does affect your choices.” It is a reminder She is a key member of the team at over the last ten years in practice has been that, for those with a disability, practical her west Clare employers, McMahon very positive. issues are a key factor in accessing education & Williams Solicitors. After four years and employment. in practice, the firm supported Aisling’s On my way decision to specialise with a master’s in At UL (where she studied law, German and isling’s PPC stint (in the Law international disability law and policy from sociology), Aisling lived in a brand-new on- Society’s school at that time in NUI Galway, which involved travelling to campus apartment, with all amenities to hand. Cork city) was fortuitous, in that campus one day a week and combining work Perhaps the process of becoming a theA building was streamlined and easily with intensive study. solicitor was more challenging for Aisling navigable – a city-centre venue with lifts and Aisling describes her employers as as a wheelchair-user, but she appears to bat wheelchair-accessible toilet facilities. “It was incredibly supportive. “With my own away obstacles with a combination of grit a really positive experience. Some of the best personal experience, I had a particular and good humour. friends I have now are the gang I met there interest and wanted specialist knowledge in With disability, there’s a lot of planning in Cork.” the area of disability law,” she says. and organising involved in everyday life, she Qualified since 2008, Aisling’s work NUI Galway’s law school also runs a says. “There are obstacles and challenges, on life is an extremely busy blend of general disability legal information clinic, where 32 PROFILE July 2021 Law Society Gazette gazette.ie
Aisling volunteered. While she was there, a case came in concerning a child with a physical disability being denied his right to continue his primary education because he required an assistance dog. Aisling took on the case pro bono, with the support of her employers, and wrote her thesis on the matter: “I wanted to see if I could use the law to effect real change,” she says.
Little bit of love Living with a disability had given her direct experience of the barriers that disabled people face every day – in accessing work, education, transport, and healthcare, as well as attitudinal barriers. The case took over four years, but was ultimately successful, and the boy was allowed to bring his assistance dog to school. “Working to vindicate this young boy’s rights was a very rewarding experience,” she says. “Having a disability myself, I was lucky to have had access to education, so it was something that I felt very strongly about.”
he case took long hours of Aisling’s time, freely given – but it led to her being given an assistance dog from theT charity Dogs for the Disabled. “It was an added bonus six months later for Gina to come my way.” Gina is a labradoodle that comes to work with Aisling and helps with practical matters, such as opening door handles, pressing the elevator button with her nose, picking up dropped items, and so forth. “She is wonderful!” says Aisling, who relishes getting out and taking some fresh sea air every day with Gina, who is very popular with staff and clients! SLICE OF LIFE Aisling has subsequently taken disability and Biggest influence? Staycation or vacation? discrimination cases, though she points out n Personally, my mother. Professionally, n Staycation – Kilkee. that, in the WRC, there are no costs awards. Gearóid Williams, principal solicitor. Two great “It’s prohibitive for a lot of people, because teachers who have really influenced my career. Advice to your younger self? there is no legal aid in this area.” n Don’t be afraid to be yourself, and don’t be Earworm? afraid to ask for help. Free me n My friend Jack Kavanagh’s Only Human Though legal practice appealed to her as a podcast. Must-have gadget? student, Aisling figured that she might pursue n My mobile phone – it contains my dictaphone, a PhD, simply because the UL campus was so Cats or dogs? diaries, emails, music, audiobooks. accessible and convenient. “I was a bit nervous n My assistance dog, Gina, who is a very due to my disability. If I’m being honest, I did important member of staff at McMahon & Favourite page-turner? wonder if practice was a realistic option. My Williams! n The Choice by Edith Eger: “We don’t know disability had progressed during those years, where we’re going, we don’t know what’s going to and I lost the ability to walk. I became very Favourite flick? happen, but no one can take away from you what comfortable in those UL surroundings.” n The Untouchables. you put in your own mind.” She credits her ‘start’ to local solicitor and current colleague Joe Chambers, who offered gazette.ie Law Society Gazette July 2021 PROFILE 33
I THINK SOMETIMES PEOPLE VIEW A WHEELCHAIR AS A SYMBOL OF INABILITY OR INCAPACITY. IN FACT, IT ALLOWS ME TO FUNCTION, TO GO TO COLLEGE, AND TO GO TO WORK. WE NEED TO FOCUS ON PEOPLE AND ON THEIR ABILITIES her a summer internship. “That’s when I the transport problem and, with 71% thought: ‘This is what I really want to do’, so I unemployment among those with disabilities went and got the FE1 manuals. Then the focus in Ireland, remote working has the potential was on Blackhall and finding a traineeship. to bring about real change. I was very fortunate in finding one locally, Digital tools have also made life easier. though it was 2008 and things were starting to Aisling can dictate through her mobile phone, change, economically. make calls through headphones, and use a “I will always be grateful to Joe for that talk-to-type dictation system. Online case chance meeting on the street, and for giving management allows virtually paper-free work, me the opportunity to realise what I really and avoids cumbersome physical files. wanted to do,” she says. “Ten years later, I’m “We have embraced technology and social still working where I started in McMahon media and, while it’s important to have an & Williams, and I will always be grateful to online presence, in West Clare, word-of- principal Gearóid Williams and to my now- mouth is as relevant today as when I started – colleagues and friends Ciara and Sinead, who and is still the most effective marketing tool.” interviewed me.” the train, wheelchair-accessible taxis when in While technology has brought many McMahon & Williams was awarded Dublin, and the various aids and appliances benefits, it has its disadvantages: “When I ‘diversity and inclusion law firm of the year’ in that are part of everyday life. started ten years ago, you would send a letter 2019. Principal Gearóid is treasurer of the and put a file away, knowing that you wouldn’t Kilrush St Vincent de Paul Society, and Aisling he manages her commitments thanks hear back for a few days at least. Now we are is the chair of the West Clare Mental Health to lots of support, which starts at sending letters by email and replies can come Association, and sits on the board of the home with her parents and sisters, within minutes or hours. It can be difficult National Disability Authority. andS extends to her friends and colleagues. to strike the balance between keeping people “There is genuinely nowhere else I’d rather Accessibility is improving in court and official updated and spending valuable time on trying be working or living,” says Aisling of Kilrush. buildings, she says, “but we have a long way to to reply to numerous emails when it might There is a great sense of community, and she go”. Some courthouses are still inaccessible, not always be necessary.” meets legal colleagues often, for walks and and lifts can break down. High up on Aisling’s wish-list is to see an lunch. “There’s always a sense of relief when I see inclusive and diverse legal profession that a ramp, but there are courthouses with ramps reflects the clients, and the communities in Let me show you outside, then steps inside to access individual which it operates. Reflecting on what she has As a wheelchair-user, everything Aisling does courtrooms. Court can be stressful in itself, discovered during her time in law, Aisling has to be planned in advance, and her decisions and having to consider accessibility adds an says: “I’m lucky to have learned from Gearóid. are often dictated by what is accessible. For extra layer of stress.” He is a brilliant lawyer, with honesty and instance, when Aisling travels to Dublin on integrity. I’ve learned to always try and work legal business or to board meetings, there is All right now with colleagues, as opposed to against them.” only one accommodation facility that is suitable However, the COVID pandemic has Her parting advice to fellow practitioners: to her needs. This involves a lot of organising, highlighted the benefits and opportunities “Treat your colleagues as you would like to in terms of arranging transport from West that remote working can provide for people be treated. Also, pick up that file you’ve been Clare to Limerick train station, ramps to access with disabilities. Virtual meetings bypass avoiding – it’s never as bad as you think!” 34 ARBITRATION July 2021 Law Society Gazette gazette.ie BUILDING POWER The new All-Ireland Arbitration Rules 2020 were designed to take account of the UNCITRAL Model Law on Arbitration. However, the lack of a costs-limitation scheme is a missed opportunity. Tom Wren uses the Force
TOM WREN QUALIFIED AS A QUANTITY SURVEYOR IN 1981 AND IS AN ADR CONSULTANT. HE WAS SECRETARY TO THE AR20 SUB-GROUP OF THE IRISH BRANCH OF THE CHARTERED INSTITUTE OF ARBITRATORS
AT A GLANCE n The construction industry needs a voluntary costs-limitation scheme to make arbitration competitive n AR20 provides as much legal certainty as possible within the Arbitration Acts and the general body of law in Ireland and aving considered the issues, Northern Ireland in 2019, the committee n The arbitration rules facilitate a just, of the Irish Branch of the expeditious and final determination Chartered Institute of of a dispute at a minimum of Arbitrators (CIArb) gave a cost to the parties mandate to an Arbitration Rules Sub-Group to draft new arbitration rules capable of use in both jurisdictions – that is, in gazette.ie Law Society Gazette July 2021 ARBITRATION 35 PIC: ALAMY BUILDING POWER
the Republic of Ireland under the Arbitration CIArb (Irish Branch) saw a need for new under international conventions, such as the Act 2010 and in Northern Ireland under the rules because its previous arbitration rules 1958 New York Convention. It is enshrined Arbitration Act 1996. The mandate reflected were devised to meet the needs of arbitration in the current arbitration acts in both the fact that Irish branch is an all-Ireland before the United Nations’ Commission jurisdictions on the island. Some countries endeavour and includes an active Northern on International Trade Law (UNCITRAL) opted to insert the UNCITRAL Model Ireland chapter. Delayed by COVID-19, the Model Law on Arbitration took hold. The Law in their domestic arbitration acts to a All-Ireland Arbitration Rules 2020 (AR20) were UNCITRAL Model Law promotes greater greater degree than others. In this respect, announced at the branch’s 2021 AGM and are uniformity, and assists the enforcement of some differences exist between the legislative available at www.arbitration.ie. arbitrators’ awards between jurisdictions regimes North and South. 36 ARBITRATION July 2021 Law Society Gazette gazette.ie PIC: SHUTTERSTOCK Luke and see In addition to the all-Ireland mandate, the Arbitration Rules Sub-Group set for itself a core objective of producing user-friendly rules that provide as much legal certainty as is reasonably possible and capable of operation within the Arbitration Acts and the general body of law in the two jurisdictions. The means adopted for the achievement of this aim was that the rules would avoid legalese as much as possible, aided by the use of break- out schedules to provide the necessary level of legal detail required for practitioners and parties’ legal advisors, in order to meet any said that, to maintain the standard required Conciliation – as various studies have shown, contingency that might arise in arbitration. of arbitrators and to promote fairness in most notably that undertaken by Dr Brian A second key objective was to facilitate the appointments, lists of suitable arbitrators Bond in 2014 (see Conciliation: how has it served achievement of a just, expeditious, and final for appointments in both jurisdictions the construction industry and has it a future?, IEI, determination of a dispute at a minimum should be kept and managed by CIArb (Irish 12 March 2014) – has proven to be a successful of cost to the parties, consistent with the Branch), which would be charged to keep means of dispute resolution in the construction standards to be expected of an arbitrator. the branch chair appraised of those available industry. In this respect, the sub-group devised an for appointment, with the consent of those arbitration costs limitation scheme, referred individuals. While I remain of the view that n the Republic, a retrograde step was to in the draft rules as ‘Schedule G’, but which the CIArb is the best-placed institute for the introduced in the public works contracts was pulled before AR20 was approved. education and training of arbitrators, I believe (PWC), whereby a contractor, having won the silos that exist between the different aI recommendation, must provide a bond before Leia the land institutes need to be broken down. payment. In terms of the PWC, conciliation is The overarching mandate was encapsulated Should a more joined-up approach emerge now less attractive, in that, if a contractor refers in rule 1 of AR20, which states: “Wherever a between the professional bodies as to whom a payment dispute to adjudication under the reference is made to ‘act’ or ‘the act’, it shall should be the custodian for a panel of Construction Contracts Act 2013 and wins, the mean a reference to either the Arbitration Act arbitrators, a pressing need already exists for contractor does not have to provide a bond. 2010, if the arbitration is to be conducted a voluntary costs-limitation scheme. I would Recently, in Gravity Construction v Total under the laws of Ireland, or it shall mean a hope that CIArb (Irish Branch) would deliver Highway Maintenance Ltd, Mr Justice Simons reference to the Arbitration Act 1996, if the as much, in the short to medium term. opened a debate on section 6(10) of the arbitration is to be conducted under the laws Construction Contracts Act as to whether a of Northern Ireland, whichever is applicable.” Chewie problem stay on the execution of an adjudicator’s In this author’s opinion, the genesis for the decision may be ordered pending the issue onsistent with the aim of user-friendly limitation of arbitration costs arose out of two of an arbitrator’s award. If section 6(10) is so rules, sections of either act are not illuminating papers read to the Construction interpreted, adjudication will also stand to lose referred to in AR20, nor are articles Bar Association’s Annual Conference in 2019 its attractiveness, and the need for a binding Cof the UNCITRAL Model Law. The sub- by Anthony Hussey; and by Colm Ó hOisín and cost-effective award of an arbitrator will group took this decision, since to attempt and Cormac Hynes – and the subsequent become more acute. to refer to sections of both Arbitration Acts authors’ discussion after presentation. It is a In both jurisdictions, adjudication has its would have resulted in an unwieldy document gross oversimplification of the authors’ papers, merits. One is to be found in paragraph 28 of with too much opportunity for confusion. but it could be said that one advocated that the southern Code of Practice on the Conduct of The approach taken stresses the need for an adjudication would predominate, while the Adjudications (issued pursuant to section 9 of arbitrator to be fully familiar with the act and other posited the death of arbitration by costs- the Construction Contracts Act), namely: “The the law relevant to each appointment. led strangulation. adjudicator shall use reasonable endeavours If AR20 applies to a contract where The central aim of a cap on arbitration costs to process the payment dispute between the the parties are in dispute, in the absence would be to make arbitration more attractive parties in the shortest time and at the lowest of agreement on the appointment of an to users of dispute-resolution services, and as a cost.” Yet this does not require an upset arbitral tribunal by the parties (normally one ladder to progression – but not at the sacrifice amount, and users still won’t know the arbitrator), AR20 provides that the tribunal of standards. While the AR20 Sub-Group’s bottom line. will be appointed by the Irish branch chair. ‘Schedule G’ was not perfect, if implemented An appointment fee of €475 (plus VAT) is (with or without modification), it would The Force is strong required if an application is issued in the presage a new beginning for arbitration, which The thrust of ‘Schedule G’ was to bring back Republic of Ireland, and £425 (plus VAT) if obtained a bad name primarily because of costs. arbitration into competition with other ADR issued in Northern Ireland. If arbitration on the island is to have processes for small-to-medium disputes, Prior to writing this article, I would have a future, it must be made competitive. leaving higher-value references to arbitration gazette.ie Law Society Gazette July 2021 ARBITRATION 37
SOME COUNTRIES OPTED TO INSERT THE UNCITRAL MODEL LAW IN THEIR DOMESTIC ARBITRATION ACTS TO A GREATER DEGREE THAN OTHERS. IN THIS RESPECT, SOME DIFFERENCES EXIST BETWEEN THE LEGISLATIVE REGIMES BETWEEN NORTHERN IRELAND AND THE REPUBLIC untouched in terms of the capping of costs. To attempt the latter would have been SCHEDULE G – COSTS LIMITATION SCHEMES (IRISH BRANCH) unrealistic, in that few (if any) practitioners Scheme Claims value range (€) Maximum Maximum period might be willing to underwrite the risk of fee (€) capping costs for disputes that could run for 1 Up to 30,000 3,000 28 calendar days months, with millions of euro and reputations 2 From 30,001 to 90,000 7,000 28 calendar days at stake. As proposed by the AR20 Sub-Group, 3 From 90,001 to 150,000 10,000 28 calendar days ‘Schedule G’ stated: “an arbitrator who agrees 4 From 150,001 to 200,000 15,000 28 calendar days to participate in any of the below Irish branch costs-limitation schemes shall have his fees fixed at the relevant band, as set forth in this “The ‘claims value range’ column in each Schedule G, which schemes [the] Irish branch scheme is the claim value only, without LOOK IT UP may review and amend from time to time. reference to the value of any counter-claim CASES: Any such review shall not apply to an existing in the reference, and which shall be stated in n Gravity Construction v Total Highway appointment under any scheme. Expenses making any request for an appointment of an Maintenance Ltd [2021] IEHC 19 and other costs may be settled and taxed, as arbitrator to the branch chairman, pursuant to provided for in the act. rule 3.3 at (iv).” LEGISLATION: “None of the below schemes apply to In some respects, Schedule G is possibly n Arbitration Act 1996 (Northern Ireland) consumer or statutory arbitrations and too simplistic in approach. What the sub- n Arbitration Act 2010 they apply only to those arbitrators who group recommended was that the schemes be n Construction Contracts Act 2013 are approved by [the] Irish branch for each given a chance and that, its use or (depending n New York Convention 1958 scheme and who have agreed to limit their upon the level of take-up) feed-back would n UNCITRAL Model Law on Arbitration fees pursuant to this Schedule G, if appointed. determine the effectiveness or otherwise of LITERATURE: “All monetary values for fixed fees refer Schedule G within two years. The proposal n Anthony Hussey, ‘Conciliation v to the unit of currency in the jurisdiction included that all who would wish to be Adjudication – is the tide turning in where the arbitration takes place. No scheme considered for appointment as arbitrators favour of adjudication?’ (Construction reduces the standard expected of an arbitrator. under the Schedule G schemes would be Bar Association Annual Conference, “The ‘maximum fee’ column [in the panel] FCIArb or CArb. 29 March 2019; see www.cba-ireland. does not include accommodation, subsistence, com) travel costs, or VAT. A new hope n Colm Ó hOisín and Cormac Hynes, ‘Is “The ‘maximum period’ column is the CIArb Irish Branch was fortunate to have domestic arbitration fit for purpose?’ period measured from the last day of the obtained the support of two senior members of (Construction Bar Association Annual hearing or, if no hearing, from the day the the judiciary, one from each jurisdiction, who Conference, 29 March 2019; see www. arbitrator receives the last written submission are closely connected with the administration cba-ireland.com) pursuant to rule 19, and is the maximum of commercial law. Both kindly acceded to n Brian Bond, ‘Conciliation: how has it number of days the arbitrator has to write providing introductory comments on AR20. served the construction industry and his substantive award in the reference, and to My belief is that such support stands to be has it a future?’ (Engineers Ireland, 12 advise the parties that the award is ready to be squandered unless, and until, a costs-limitation March 2014) taken up. scheme is implemented. 38 GENDER DIVERSITY July 2021 Law Society Gazette gazette.ie
AT A GLANCE n Many studies show us the changing face of legal practice and the marketplace today – and that diversity is good for the profession as a whole n More specifically, diversity is important in ADR for a number of reasons: improved decision- making, financial incentive, and representation of the wider community n There are practices that we can put in motion to increase diversity in ADR for the benefit of our clients and the ADR and legal community SCALES OF JUSTICE We are no longer debating whether diversity is good for the legal profession and for ADR: we know this to be true from many studies. Susan Ahern and Alison Walker analyse the numbers of women arbitrators and mediators that have been appointed in recent years PIC: ALAMY BARRISTERS SUSAN AHERN AND ALISON WALKER ARE MEMBERS OF THE ARBITRATION AND ADR COMMITTEE OF THE BAR OF IRELAND, AND THE IRISH WOMEN LAWYERS’ ASSOCIATION
he appointment of Ms Justice It is now clear that we are no longer Susan Denham to the position debating why diversity is good for the of Chief Justice in 2011 legal profession and for alternative dispute was a defining moment resolution (ADR). We know this to be true for diversity in Irish legal from many studies that show us the changing history. US Supreme face of legal practice and the marketplace Court Justice Ruth Bader today. Diversity strategies to include women, Ginsburg often fondly people of colour, members of the LGBTQ recalled how President community, and disabled people must now Jimmy Carter observed be implemented and put into practice to of the United States’ achieve equality in ADR appointments. Federal Court judges: This article will concentrate in particular “They all look like on the numbers of women arbitrators and me … That’s not the way the great United mediators being appointed in recent years, States looks. I want my judges to reflect according to the data, and what we can do the greatness of the people of the United to further these aims. It is because of the States in all their diversity. So, I will appoint work and determination of organisations like members of minority groups and women…” Arbitral Women and arbitral institutions like gazette.ie Law Society Gazette July 2021 GENDER DIVERSITY 39 PIC: SHUTTERSTOCK PIC: ALAMY
the ICC, LCIA, ICDR and SCC – many of The 2019 CEDR report, Improving there were no women executives at all. which are now led by women – that these Diversity in Commercial Mediation, shows There was found to be a higher likelihood of panels reflect increased gender equality. that there are just 34% of women working profitability outperformance difference with in commercial mediation, compared with ethnicity than with gender. The 2018 Queen Glacial pace 66% of men. And just 25% of mediators are Mary International Arbitration Survey shows Diversity is important in ADR for a number under 50 years of age. that clients are increasingly seeking diverse of reasons: improved decision-making, Diverse arbitral panels show improved ADR candidates. financial incentive, and representation of the quality of decision-making, as different The legal teams, tribunals, and ADR wider community. perspectives introduce nuances and ensure practitioners being appointed need to We are currently reaching gender parity that group-think is not a factor, as panellists represent the community today, and the in ADR representation at a glacial pace. This can cover each other’s blind spots. parties whose decisions they are resolving. is unacceptable in these times, and we must There is also a financial incentive in The ICCA report on gender diversity act to change this. The World Economic promoting diversity and inclusion. The 2020 discusses how arbitrators are stepping into Forum Global Gender Gap Report 2020 found McKinsey & Company report, Diversity Wins: the shoes of judges, and poses the question that it will take 99 years to close the overall How Inclusion Matters, found that companies of whether they, too, should be subject to gender-parity gap globally, and 257 years to with more than 30% of women executives legitimacy requirements, such as the need to close the gap in economic participation and were more likely to outperform companies be representative of the various stakeholders opportunity. where this percentage was lower, or where affected by their decisions. 40 GENDER DIVERSITY July 2021 Law Society Gazette gazette.ie
Taking the pledge ADR candidates to think of some suitably only half as likely as men to make partner in Each of us can make a difference. There experienced women. When searching for Ireland. Many women exit the market when it are practices that we can put in motion to diverse names, there is an abundance of nears the time of making partner or becoming increase diversity in ADR for the benefit networks that you can contact that can senior counsel. There are several reasons for of our clients, and the ADR and legal provide a list of talented diverse arbitrators this, such as lack of flexible work options, and community, including: and mediators, such as Arbitration Ireland, work culture. • ‘Taking the pledge’, the Chartered Institute of Arbitrators (CiArb), Having more women and persons of • Addressing the ‘leaky pipeline’, and Arbitral Women, the Bar of Ireland, or the minority working in law firms will naturally • Unconscious bias training. Law Society. increase diversity and inclusion within Clients lose out when they are not afforded the business, as diverse lawyers attract The Equal Representation in Arbitration the opportunity to benefit from the valuable diverse clients, and will be more inclined to (ERA) Pledge seeks to have more women experience of diverse ADR practitioners. recommend diverse ADR practitioners. The appointed to arbitral seats on an equal- Clients need to lead the process, and it is Law Society encourages firms to sign up to opportunity basis and to strive for fair more important than ever to companies and the Gender Equality, Diversity and Inclusion representation. The goal is to achieve gender organisations that diversity initiatives are Charter. There are financial benefits to being parity in arbitration. The pledge has close being followed. part of this charter and to actively pursuing to 5,000 signatories worldwide from major Commitment to providing lists with a fair diversity policies, as clients are increasingly international law firms, arbitral institutions, representation of diverse ADR candidates seeking diverse legal representatives who corporations, and individuals. is imperative. Arbitral institutes such as the reflect their company’s values and visions, and International Centre for Dispute Resolution the culture that they nurture in their business. inding and considering qualified (ICDR) have committed to ensuring that Where firms do not reflect their customers’ diverse arbitral candidates is incredibly 20% of any list of ADR practitioners provided values, they will lose their business advantage. important. Dame Linda Dobbs, the to parties will be diverse, and they have Clients want diversity, and this needs to be Ffirst person of colour to be appointed as a incorporated an algorithmic tool in its case- catered for. judge in the courts of England and Wales, management system to support this. We said in Counsel magazine in June 2019: “Sadly, need to commit to this target ourselves when he Mansfield Rule is a global initiative people are lazy. Instead of actively looking compiling diverse and gender-balanced lists signed by 117 major law firms to around to see who else they could recruit, of ADR candidates for clients and, ultimately, promote equality of opportunity at … they tend to choose the usual suspects. this percentage should continue to rise and lawT firms, including in the hiring of diverse [We should be] pulling in people who have soon reach 50%. outside counsel and ADR practitioners. not been pulled in before and getting them Women and diverse lawyers should also engaged. Role models [are] what we are, Leaky pipeline be invited to speak at conferences, as this reluctantly or not, and it’s really important The ‘leaky pipeline’ refers to the barriers acts as a platform to increase the visibility to not just have the ‘same old’ … there are that women encounter in their legal careers of these candidates, which in turn leads to people actively involved on the ground who that compel many to leave after just the appointments of arbitrators, mediators and should be spotted and used.” first few years of qualifying – and this fall- counsel. Prof Lucy Reed challenges the arbitration out continues up to partner level. Solicitor community to take just five minutes longer Suzanne Carthy has written (Gazette, May and Unconscious bias training when coming up with a list of potential June 2018) that analysis tells us women are A major draw to arbitration and ADR is the opportunity to choose your arbitrator or mediator. We need to recognise how our unconscious bias can affect our decision- making and take steps to prevent this. The ‘halo effect’ has a tremendous impact on clients, counsel and solicitors in the ADR process, and means that when a candidate is recommended to us, their flaws seem WE NEED TO RECOGNISE unnoticeable, and this writes off any other potential candidates. HOW OUR UNCONSCIOUS Word of mouth is a common source of data, and while it may be easy to go with BIAS CAN AFFECT OUR the usual suspects or the recommended individual, it may not always be in the best DECISION-MAKING, interest of the client. A little further research may be necessary to find the most suitable AND TAKE STEPS TO person for the task, and legal teams have an important role to play in the selection of PREVENT THIS mediators and arbitrators. gazette.ie Law Society Gazette July 2021 GENDER DIVERSITY 41
WITHOUT MAKING MAJOR CHANGES NOW, IT WILL BE 2277 BEFORE THE GLOBAL GENDER GAP IN ECONOMIC PARTICIPATION AND OPPORTUNITY IS CLOSED. THIS IS A GLACIAL PACE. INTERVENTION IS NEEDED NOW
The Harvard Implicit Association Test Strategic thinking competitive commercial environment. The helps to identify our unconscious bias Forward-thinking companies and firms are legal community needs to commit to the towards certain people. The results often committed to their long-term strategic plans, increased selection of diverse practitioners, as surprise people when their hidden biases which often involve promotion of equality, the ADR process will lose credibility where are uncovered. Training initiatives such as diversity, and inclusion, as this is essential the ADR providers do not reflect the diverse the Arbitral Women Diversity Toolkit help for the future growth and development of a backgrounds of clients and companies. us recognise and counteract bias when it company. These companies and firms will Without making major changes now, it rears its ugly head. It is very effective when continue with this aim – even now during will be 2277 before the global gender gap these training initiatives are led by senior, the pandemic. In business, there will always in economic participation and opportunity white, male figures, as they are often the be fires to put out and urgent challenges is closed. This is a glacial pace. Intervention gatekeepers. The good work being done by to address, but the business must stay is needed now. Arbitral institutions have men who are striving for equality on behalf committed to its long-term strategy. This committed to compiling lists with a fair of women and minorities also needs to be should equally apply to litigation and, more representation of both diverse and female acknowledged. properly, to the ADR options that a business ADR practitioners. As lawyers, it is now may become involved in. time to compile diverse and gender-balanced rbitrator Lucy Greenwood We need diversity now more than ever. lists in our practices when considering recommends that, when selecting New and differing ideas are necessary recommending arbitrators and mediators, in an arbitrator, we should start during these times to come up with new order to reach gender parity in arbitration withA a list of criteria or objectives, rather innovations and to succeed in an increasingly sooner. than a list of names. We should look to databases of arbitrators rather than individual recommendations, as this will give a greater pool of arbitrators from which to choose. This LOOK IT UP Diversity in Arbitral Appointments and will lead to greater transparency and access n Arbitral Women Diversity Toolkit Proceedings (ICCA Reports No 8, 2020) to information, which will result in avoiding n Carthy, Suzanne, ‘Hidden figures‘ (Law human bias or motive. She also proposes n JAMS Diversity and Inclusion Arbitration Society Gazette, May 2018, p38) and that lawyers advising clients on arbitrator ‘Mind the gap‘ (Gazette, June 2018, p36) Clause candidates could consider using standardised n Law Society of Ireland, Gender Equality, n CEDR, Improving Diversity in CVs that remove identifying information, Commercial Mediation: Executive Diversity and Inclusion Charter such as names. Summary Report (May 2019) n Mansfield Rule Diversity inclusion language can be added n Counsel magazine (June 2019) n McKinsey & Company, Diversity Wins: to the suite of options for a party putting n CPR Diversity Commitment Clause How Inclusion Matters (May 2020) together an arbitration clause. The JAMS or n Equal Representation in Arbitration (ERA) n School of International Arbitration, the CPR diversity clauses could be inserted Pledge Queen Mary University (2018), into contracts allowing for dispute resolution. n Harvard Implicit Association Test International Arbitration Survey: The This language can ensure that, when a dispute n International Council for Commercial Evolution of International Arbitration arises and an arbitrator is to be selected, this Arbitration, Report of the Cross- n World Economic Forum, Global Gender will be done with a view to selecting a diverse Institutional Task Force on Gender Gap Report 2020 arbitrator or panel. 42 WELLBEING July 2021 Law Society Gazette gazette.ie
AT A GLANCE n How Domenic Cervoni and his family coped with his wife’s serious illness led to him gaining perspective of what’s truly important in life n He recognised that mental health and wellbeing shouldn’t be just an afterthought, especially the mental component n The subtitle of the book he wrote is illuminating: ‘How my wife’s courageous battle with rare cancer has motivated me to live a better life filled with passion, empathy, and gratitude’ PAY IT FORWARD Domenic Cervoni, vice-president of legal at HSBC North America Inc, speaks to the Gazette about the impact of his wife’s diagnosis with a rare cancer – and the battle he faces each day in managing his own wellbeing
MARK McDERMOTT IS EDITOR OF THE LAW SOCIETY GAZETTE
omenic Cervoni is a New York lawyer who grew up on Long Island and has spent his entire life there. He’s how you imagine a New York lawyer should be – straight-talking, no BS, with a refreshingly honest approach – and a surprising ‘sense of self’ for someone in their ’30s. He and his wife Barbie and their two boys, Benjamin (8) and Sebastian (6), live in their Long Island home, not far from his parents and his two siblings. His dad emigrated from Italy to the US at the age of 18 and “is in the construction business”. He and Domenic’s mother “married fairly young”. Like the clichéd Italian family, Domenic was encouraged to “do well in school, be respectful and stay out of trouble”. And that’s pretty much where the clichés end. The first in his family to go to college, he attended a university in Maryland for a semester, where he met his wife to be. He then transferred to Hofstra University in Long Island. “I was a history major in college; I like to read and write, but I didn’t want to become a professor, so I thought, well I guess I’ll go to law school – it seemed like a stable career.” He attended law school in New York City and was fortunate enough, in 2007, to get a job at the international law firm Mayer Brown, where he worked on the litigation team in the New York city office for over six years. He was then seconded to HSBC Bank – an opportunity he actively sought. The six-month secondment turned into 12 months, then 18 and, finally, full-time employment. He thoroughly enjoyed the experience of jumping from private PIC: SHUTTERSTOCK practice to working in-house. “You can never really appreciate the inner workings of a massive organisation unless you’re in the building,” he says. “It’s an invaluable experience to meet people internally and see how everything works. You hear about the corporate matrix – that’s real!” gazette.ie Law Society Gazette July 2021 WELLBEING 43
Domenic Cervoni
WHEN I SHIFTED MY PRIORITIES TO MY OWN WELLBEING – THEN MY FAMILY’S, AND THEN MY WORK – NOT ONLY WAS I HAPPIER AND FEELING MORE FULFILLED, BUT I BECAME A BETTER ATTORNEY. I BECAME A BETTER PROFESSIONAL 44 WELLBEING July 2021 Law Society Gazette gazette.ie
Being an in-house counsel meant improvement. She continued losing weight, while I struggled with that, and took it out liaising with both external counsel and couldn’t eat, and suffered muscle twitching on the wrong people. I felt like there was no legal colleagues in HSBC. Among other and insomnia. control – I couldn’t rid her body of tumours, I things, he developed the important skill of “At the time, our kids were aged about couldn’t make her feel better, I couldn’t make communicating legal concepts and arguments three and one,” Domenic says, “and so it her sleep, I couldn’t make her not be in pain – to non-lawyer businesspeople, whether in was a very difficult situation to watch your and that was hard. the compliance, communications or risk significant other’s body deteriorate. Then “But then I started thinking about all the departments, in an easily digestible way. “That we transferred her care to another hospital – things I could do, so I began focusing my was something of a challenge initially – but an Memorial Sloan Kettering – which I call the energy on those. I started inviting her friends invaluable skill to have,” he says. miracle factory. Within a week, they were able to come over to just hang out with her. I Domenic remains an integral member to diagnose a very rare autoimmune disease, took care of our finances, and transferred her of the bank’s litigation and regulatory which had been triggered by the cancer and medical records from hospital A to hospital B.” enforcement group as vice-president (legal) of was causing the underlying symptoms. What was the changing point? HSBC North America Holdings Inc. “They switched treatments and, eventually, “I have a vivid recollection of sitting in in late summer 2016, she started improving. my car in the driveway. I had one of those Blast from the past She still has cancer, so she lives with it, moments when I realised that I couldn’t keep Not long after he started his secondment at and she still has this autoimmune disease, doing what I was doing because it wasn’t HSBC, Domenic and Barbie were married, which doesn’t go away – it’s just managed. working. There were things I could do, so the had the two boys, and bought a house. Life Unfortunately, stress is a big trigger, and then object was to try to focus my energy on those, was good – but that didn’t last. By the end when you have young kids at home, good which helped.” of 2015, the past had caught up with Barbie luck, right? So it’s a lifelong journey we’ve – and, by extension, with Domenic and the embarked on. If you met her today and I I’m still standing rest of the family. Back in 2008, his wife had didn’t tell you any of this, you would never Barbie continues to live with chronic illness, been diagnosed with a very rare cancer. “We know that she had any of these problems.” but she’s otherwise healthy. “I know that can were, I don’t know, 27 or 28 years old at the sound confusing to a lot of people, but they’re time when I was a first-year lawyer at Mayer Not proud not mutually exclusive. My wife is a perfect Brown. Barbie was in the process of obtaining So how did he cope with holding down a very example of this – you can live with illness, but her master’s.” responsible position, workwise, while looking lead a healthy life.” after two active boys? It’s an interesting point. There are lots of he diagnosis meant surgery and “Yeah, it was hard. I am not proud of how I people managing personal or family illnesses radiation treatment. A clean bill of reacted and responded many times, just to be in different ways. It’s a significant part of their health followed for eight years – until blunt about it. I certainly failed as a husband, lives of which their work colleagues might not theT end of 2015, when she started to get sick as a dad throughout that process. There were even be aware. once again. In February 2016, she underwent many times where I was angry and frustrated Listening to Domenic, you get the sense surgery to remove very rare thymoma and scared, and just didn’t know what to make that there’s a lot that remains unspoken. cancer – cancer of the thymus gland. Despite of all of it. There’s pain, there’s hurt – possibly even invasive surgery to remove the cancer, she “It’s very hard for us ‘type A’ lawyers – the fear. But there’s plenty of hope, too. And it remained sick, with no obvious reasons why. perfectionist personality type – to have a was that hope that inspired him to write a After a further procedure and various tests significant other be as ill as she was, and you book, From Tragedy to Triumph, about his and different medicines, there was still no can’t do anything about it, right? And for a family’s experience. (It’s subtitled ‘How my
HAVE EMPATHY FOR WHAT OTHER PEOPLE ARE GOING THROUGH IN THEIR LIVES BECAUSE THERE IS SOMETHING BIGGER THAN THE JOB – AND IT’S LIFE, IT’S HEALTH, IT’S FAMILY. AND SO, EVEN IF YOU DON’T NECESSARILY BELIEVE THAT, HAVE EMPATHY FOR THOSE WHO DO gazette.ie Law Society Gazette July 2021 WELLBEING 45
I THINK A LOT OF TIMES, ESPECIALLY IN THE LEGAL PROFESSION, OUR PRIORITIES GET MIXED UP A LITTLE BIT, AND THERE’S SUCH A HEAVY EMPHASIS ON THE WORK THAT EVERYTHING ELSE BECOMES SECONDARY, INCLUDING FAMILY OR FRIENDS AND YOUR OVERALL WELLBEING wife’s courageous battle with rare cancer has “And that’s one of the things that I’m trying Wellbeing v Bottom Line motivated me to live a better life filled with to impress upon people when speaking about What do you have to say about the ‘suits’ who passion, empathy, and gratitude’.) mental health and wellbeing – it shouldn’t look on staff wellbeing as being great for the He says that writing proved therapeutic be some afterthought, especially the mental bottom line? Is it right that the focus is on the for him – and cathartic. “I had a lot of mixed component of it. But not everybody believes bottom line rather than, first and foremost, feelings about all the stuff that had happened. that, if I check in and take care of myself on the mental and physical wellbeing of your I was angry, I was sad, I was frustrated, I was mentally, whatever that means for you (maybe staff? just so many mixed emotions – and putting it’s walking the dog, reading a book, 20 “The short answer is that I don’t think things on paper helped me process all that minutes of quiet time), it will make you feel they’re mutually exclusive. I would like information. better and have an impact on your life, on to think that prioritising your people's “It was painfully apparent to me how how you approach the day and its challenges. wellbeing is the right thing to do, and that important our overall health is. I had watched There’s a quote from the writer Eleanor should be enough, but, practically speaking, my wife’s body fail her, and how difficult that Brownn that I love, which says that ‘self-care sometimes it’s not. But like I said, the two made life. Like ordinary experiences – getting is not selfish, you cannot serve from an empty are not mutually exclusive. In other words, it up, sitting down, eating, changing a diaper, vessel’.” is not ‘either focus on people’s wellbeing’ or going for a walk, sleeping. Things we do every ‘improve the bottom line’. They’re actually day, without even thinking about it – and she Advice to the C-suite connected, and the research suggests that, if couldn’t do any of those things.” What advice would he give to employers about you are taking care of your people and they So, how has the experience changed him? how they can best support their employees in are making healthier life choices – physical, “The short answer is ‘perspective’ and tough times? emotional, mental – they’ll be better at their a recognition of what’s truly important in “Have empathy for what other people are jobs. They’ll be more productive, they’ll be life – and health is paramount. So I started going through in their lives, because there is happier, the work product will be better, exercising, and I recognised that taking care of something bigger than the job – and it’s life, there’ll be less burnout, less attrition and less myself first helps me take care of everything it’s health, it’s family. And so, even if you don’t turnover. else.” necessarily believe that, have empathy for those “I am encouraged by some of the progress who do. Even now, we’re learning from the I’m seeing, at least in the United States. Mixed up pandemic about the importance of flexibility, Speaking to law firms, and other in-house “I think a lot of times, especially in the legal and how that has a very positive influence on lawyers, there seems to be a more intense profession, our priorities get mixed up a little people. focus on some of these things, and so that’s bit, and there’s such a heavy emphasis on the encouraging. There’s a long way to go. We’re work that everything else becomes secondary, e have also learned from this not there yet, and I don’t think we will be for including family and friends and your overall pandemic that, if you have a while, but I think we’re off to a pretty good wellbeing. We think ‘I don’t need to exercise, I the right people, they’re start.” don’t need to eat well, I don’t need to meditate’, going“W to do the job right. They might need From Tragedy to Triumph is available to or do whatever. I could just work, work, work to be allowed to take a small break during borrow through the Law Society Library. and I’ll be fine. And maybe you can for a the day; they might need to go to a doctor’s period of time. In my experience, you burn appointment, but they’re going to get the work If you have been affected by any of the issues out eventually. When I shifted my priorities to done, and it’s going to be high-quality work. raised in this article, you can find support through my own wellbeing – then my family’s, and then And so, be empathetic with your employees LegalMind, an independent and confidential my work – not only was I happier and feeling who are suffering, provide flexibility, and keep mental-health support available to solicitors and more fulfilled, but I became a better attorney. I an open mind – no judgment. Something we their dependants, 24 hours a day; tel: 1800 81 41 became a better professional. seem to be getting right at HSBC.” 77. See www.lawsociety.ie/legalmind. FTI Consulting’s Technology practice helps clients manage their information governance programmes and the risk and cost of e-discovery with confidence. We collaborate with clients to deliver strategic solutions tailored to their unique legal requirements – from forensic data collection to cross border e-discovery to fully managed document review services. FTI uses market leading e-discovery platforms which are well known for their scalability and performance, powerful review and analytics capabilities, the ability to search across millions of documents in seconds, and for having flexible production capabilities.
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Tel: +353 1 672 9025 / +353 87 739 3089 n www.ftitechnology.com The Academy Building, Pearse St, Dublin 2, DO2WP31 IN HIGH-STAKES M&A, DATA BRINGS RISK AND REWARD n One year on from the beginning of the target companies and their third parties is a predictive coding scale strategic decisions pandemic, companies in Ireland and across fundamental first step. Consideration must about a transaction (i.e. what data needs to Europe face a tenuous economic climate. be given to the data in possession of the be retained or remediated ahead of the deal) For many large organisations, a key piece of target company, the data held by third parties and drive faster outcomes for data inventory the survival strategy has been to centre M&A and protection requirements that will apply and review. activity on bolstering business resilience. With after a transaction closes. Counsel have an For example, our team at FTI Consulting this shift, due assessment of data risk (across obligation to consider all relevant variables. recently leveraged analytical review to IP, privacy, legal and other exposures) has This includes granular analysis of the remediate corporate IP in a divestiture. Using become an increasingly critical element of information-sharing ecosystem and whether a combination of our experience, technical M&A decision-making. data is being sold or traded in violation with expertise and a blend of our analytical tools, M&A activity is inherently propelled by stringent data protection laws. the team determined the content of a massive confidence—in systemic factors, business If an investment is being made to secure universe of information residing on servers, stability and the certainty of data provided. access to another company’s data, the laptops and other corporate applications, and Any sudden, unexpected changes to the purchasing business should ensure that the ultimately remediated 1.3 million files. The context a deal has been negotiated within target firm has already obtained consent strategic use of analytics enabled the team to can complicate the process, cause delays or from their customers to share data with protect corporate IP ahead of the divestiture, result in a failed transaction. This is why due third parties. Transference of consent is a significantly reduce risk and move the deal diligence is so critical, and why given today’s complex legal issue. Without the proper forward in less than three months, all without digital climate, data assessments must be a structures in place, liability for breach of disrupting business operations. routine part of those processes. existing agreements with consumers can No business or industry is immune to the The combined effects of remote work and result in significant penalties for the acquiring reality of their ever-increasing dependency an increasingly active global M&A landscape organisation. on data, and the amount of due diligence have made it more difficult for organisations IP is another area where counsel required to successfully move deals forward to meet the demands of maintaining thorough should conduct a data audit to uncover any is only going to increase. Learning to leverage due diligence and data analysis processes. instances of improper use of IP, leakage of technology to ensure total completion of this In some cases, this has led to an increase proprietary information or other IP-related risk. process is essential for any firm looking to in administrative overhead and other Contracts should also be vetted to assess mitigate risk, ensure prices paid are accurate complexities in many transactions. any factors which may subject the business and to make strategic decisions. to long-term risk. DATA RISKS IN M&A In an effort to get deals over the line, CONCLUSION n M&A risk has also increased in the wake of however, companies may not fully observe n While technology offers tremendous data protection regulations like GDPR, and privacy, security or regulatory risks. Failure potential for expediting high-stakes M&A high-profile instances of data breaches. We to adequately assess exposure in these due diligence and mitigating risk, is it not have seen generally over the past eighteen areas can create significant future legal a silver bullet. Guidance from experts who months examples of the implications that can and regulatory problems. This of course can conduct robust technical examination result from oversights in data due diligence, poses a dilemma. Counsel must either of systems, and guide the application of these oversights can result in organisations evaluate massive volumes of information analytics, is critical. being exposed to the potential risk of incurring and thoroughly assess risk or skip the The importance of human oversight in significant fines and liabilities due to alleged technical assessment so a deal’s value the due diligence process is inarguable, but GDPR violations therefore reinforcing the can be achieved quickly. Balancing these the strategic use of advanced technology importance of carrying out a comprehensive expectations—maintaining a high standard and bespoke solutions will allow counsel to data due diligence from the outset. of performance without an overcommitment provide deeper insights, better valuations, There are steps organisations can of resources—requires the use of advanced drive efficient and informed decisions, deliver take to overcome these new issues and analytics tools to automate the most profitable long-term outcomes for their clients efficiently and accurately evaluate their risk cumbersome parts of the process. and prevent unexpected post-closing legal exposure in a potential deal. Mastering the and regulatory liabilities. use of technology in the due diligence and LEVERAGING AI data assessment process will also help n The emergence of AI technologies and FTI Consulting organisations reap more value from their advanced analytics has accelerated data due The Academy Building, data or the data they are acquiring from a diligence in M&A. With these, counsel can Pearse St, Dublin 2, DO2WP31 target company. understand and mitigate critical data risks, Tel: +353 1 672 9025 Assessing the quality of data governance allowing them to streamline asset acquisition +353 87 739 3089 processes and data sharing practices among under tight deadlines. Analytics tools like www.ftitechnology.com 48 ANALYSIS News in depth July 2021 Law Society Gazette gazette.ie 12 SOLICITORS NAMED SENIOR COUNSEL The latest batch of 12 solicitors join their 17 predecessors who were granted patents of precedence in 2020. Mark McDermott reports
MARK McDERMOTT IS EDITOR OF THE LAW SOCIETY GAZETTE
aw Society President James partner of Malcomson Law, commercial litigation group. She Cahill has congratulated the where he leads their health-law has significant expertise in EU 12 solicitors who have been litigation team. He is perhaps and multijurisdictional cases and Lapproved by the Government for best known for his representation in acting as advocate in alterna- the granting of patents of prece- of victims in the contaminated tive dispute resolution. In Janu- dence. This will allow them to use blood scandal, in which he repre- ary 2021, she was elected presi- the designation ‘senior counsel’. sented clients in Ireland, Britain dent of Arbitration Ireland – the For the first time in 2020, mem- and New Zealand. He maintains first female president in the asso- bers of the solicitors’ profession a cross-jurisdictional law practice ciation’s history. She is a court were allowed to apply for patents in a wide range of health-related member of the London Court of of precedence as a result of provi- areas, including medical negli- International Arbitration. SOLICITORS sions of the Legal Services Regula- gence, compensation schemes, tion Act 2015. statutory inquiries, inquests and Alison Fanagan SC HAVE A UNIQUE Mr Cahill said: “We are proud product liability actions, specifi- (A&L Goodbody LLP, Dublin) to congratulate our colleagues who cally relating to pharmaceutical Alison trained as a solicitor PERSPECTIVE have demonstrated the necessary and medical-device products. with Gore & Grimes. On quali- THAT THEY CAN skills, knowledge and experience to fication, she joined A&L Good- become senior counsel, including Geraldine Clarke SC body where, for the past 30 years, BRING TO THE former presidents of the Law Soci- (Gleeson McGrath Baldwin LLP, she has practised as a regulatory ety – Geraldine Clarke and Stuart Dublin) litigator with a particular exper- ROLE OF SENIOR Gilhooly – and the Law Society’s Geraldine is a partner in the tise in planning and environmen- COUNSEL AND deputy director of education, Dr litigation and dispute resolution tal matters. She was made a part- Geoffrey Shannon. department of Gleeson McGrath ner in 2000 and became a consul- WE ARE PLEASED “Solicitors have a unique per- Baldwin LLP. She is a past-pres- tant in 2008, and jointly heads up THAT THE MANY spective that they can bring to the ident of the Law Society of Ire- the nine-strong environmental role of senior counsel,” the presi- land, and of the DSBA. She has and planning group at the firm. CONTRIBUTIONS dent added, “and we are pleased served as chair of the Property that the many contributions of our Services Regulatory Authority, as Larry Fenelon SC OF OUR profession to the legal system and a member of the Financial Ser- (Leman Solicitors LLP, Dublin) PROFESSION administration of justice are once vices Appeals Tribunal, and the Larry co-founded Leman Solic- again recognised.” Solicitors Disciplinary Tribunal. itors LLP in 2007 and managed TO THE LEGAL Of the 12 this year, all are based She is currently a member of the firm from 2007 to 2018. He in Dublin and five are women, the Legal Services Regulatory heads up the firm’s litigation SYSTEM AND while only five of the 25 barris- Authority. department and specialises in ADMINISTRATION ters who have been approved are resolving construction, com- women. Nicola Dunleavy SC mercial property, commercial OF JUSTICE ARE (Matheson, Dublin) and sports disputes. He is an ONCE AGAIN Raymond Bradley SC Nicola has a broad commercial experienced dispute resolver (Malcomson Law, Dublin) litigation and investigations prac- and has been a CEDR mediator RECOGNISED Raymond is managing and senior tice, and co-heads Matheson’s since 2005. He is a former chair gazette.ie Law Society Gazette July 2021 News in depth ANALYSIS 49
Raymond Bradley SC Geraldine Clarke SC Nicola Dunleavy SC Alison Fanagan SC Larry Fenelon SC Stuart Gilhooly SC
Damien Keogh SC Conor Linehan SC Rachel Minch SC Dr Geoffrey Shannon SC Helen Sheehy SC Keith Walsh SC of the Law Society’s ADR Com- a lecturer at a number of universi- superior courts. Rachel is a Coun- offices in Dun Laoghaire. She mittee, and a committee mem- ties and colleges. He co-authored cil member and former chair of is an expert in copyright law, ber of the Chartered Institute of Adjudication Practice and Procedure the Irish Environmental Law particularly relating to recorded Arbitrators. in Ireland Construction Contracts Association (2012 to 2018). She is music and collective manage- Act 2013 (Routledge, 2020). a regular conference speaker and ment organisations. Her most Stuart Gilhooly SC lecturer (TCD, Law Society and significant cases have involved (HJ Ward & Co Solicitors LLP, Conor Linehan SC King’s Inns). obtaining Norwich Pharmacal Dublin) (William Fry, Dublin) Orders against internet service Stuart qualified as a solicitor in Conor is a partner at William Dr Geoffrey Shannon SC providers to obtain the names 1995 and is a partner in HJ Ward Fry and head of its environment (Law Society of Ireland, Dublin) and addresses of infringers, site- & Co. He practises mainly in and planning group. He is active Geoffrey is a solicitor and senior blocking orders, cases (includ- the area of personal injuries and internationally, serving on the IBA lecturer in child law and family ing the Supreme Court) that sports law. He served as presi- President’s Task Force on Climate law at the Law Society of Ireland. involved ‘graduated response’, dent of the Law Society of Ireland Justice. Conor was the Govern- He held the role of Special Rap- and others (CJEU) that led to the (2017) and the DSBA (2011). He ment appointee to the panel of porteur on Child Protection for introduction of new sections of has chaired many Law Society environmental law expert arbitra- the Irish Government from 2006 the Copyright and Related Rights committees, is a member of the tors at the Permanent Court of to July 2019 and was chair of the Act 2000. Superior Court Rules Commit- Arbitration in The Hague. He is Adoption Board and its successor, tee, and was the Law Society’s a member of the Advisory Board the Adoption Authority of Ireland Keith Walsh SC nominee for the Personal Injuries to the Centre for Law and the (2007 to 2020). In 2010, he was (Keith Walsh Solicitors, Dublin) Commission, and the Administra- Environment at UCC, and the appointed by the Government Keith is the principal of a four- tion of Civil Justice Review. Law Society’s Environment and to chair the Independent Child solicitor practice, author of Divorce Sustainability Task Force. Death Review Group. Earlier this and Judicial Separation Proceedings Damien Keogh SC year, Dr Shannon was appointed in the Circuit Court (Bloomsbury, (DKA Solicitors, Dublin) Rachel Minch SC chair of an independent review 2019), and specialises in family Damien is a construction lawyer, (Philip Lee, Dublin) into the manner in which com- law and mental-health law. He is arbitrator, mediator, adjudica- Rachel is a partner in Philip Lee, plaints in relation to the sexual a multiple recipient of the Irish tor and conciliator with DKA specialising in planning, environ- abuse of children were dealt with Law Awards’ Family Law and Solicitors, Dublin. He is a fel- mental and public and adminis- in St John Ambulance Ireland. Mediation Team/Lawyer of Year low of the Chartered Institute trative law. Her practice to date award. He is an elected member of Arbitrators, an adjudicator has primarily involved advising Helen Sheehy SC of the Council of the Law Soci- on the minister’s Construction public-sector clients in these (Helen Sheehy & Co, Dublin) ety and a former chair of both the Contracts Adjudication Panel, a areas, with an emphasis on the Helen is the sole practitioner Law Society’s and DSBA’s Child CEDR-accredited mediator, and defence of their decisions in the in Helen Sheehy & Co, with and Family Law committees. 50 ANALYSIS News in depth July 2021 Law Society Gazette gazette.ie THE FUTURE IS NOW The pandemic has effected large-scale digital transformation, this year’s In-House and Public Sector Committee panel discussion heard. Mary Hallissey reports
MARY HALLISSEY IS A JOURNALIST WITH THE LAW SOCIETY GAZETTE
or obvious reasons, law- tion and management of employ- office working and the demand yers will not be happy with ees’ wellbeing. for working from home; however, hot-desking arrangements For example, many workers do a balance will need to be struck Fin any post-pandemic office space not have dedicated office space at between the needs of employers shake-up, this year’s In-House home, particularly those in urban and their employees, as offices and Public Sector Committee locations, where house-sharing is begin to reopen. panel discussion heard on 27 May. dominant, she said: “This gives “A hybrid working model is When lawyers eventually re- rise to a worry about appropri- predicted in many cases, although turn to their offices, they still ateness of space, in terms of well- it is recognised that this is per- won’t want to share a desk, the being,” she said. sonal to the specific role,” Mowat participants agreed, since the While hub-and-spoke office predicted. desire for privacy is so strong on set-ups – high-quality, city- She added that those who legal matters. centre buildings with dispersed wished to push their career for- THERE HAS BEEN And while practitioners may smaller units on the periphery ward would also desire to attend want the flexibility of working – have become popular in large the office. NO SHORTAGE from home, they will have missed metropolises like New York and Efficient energy ratings in the external retail options adja- Paris, they may not be so much in office buildings have become an OF NARRATIVE cent to their offices, the virtual demand in Irish cities, given that increasingly important factor ON THE FUTURE discussion heard. commuting times are lower and in lettings, with environmental, Ebba Mowat (divisional direc- cities smaller, Mowat said. social and governance policy a OF OFFICE tor at Savills Ireland) gave an key consideration in a company’s overview of the post-pandemic Collaboration future, Mowat also predicted. WORKING AND property situation. Collaboration spaces will remain As a result, it is expected that THE DEMAND Mowat said that employers face important in offices, she pre- there will be polarisation between a conundrum, in that their staff dicted, as well as the increasing modern spaces and older offices, FOR WORKING want the flexibility of working use of ‘no-touch’ technology. since any saving in rent on older from home, yet bosses face chal- “There has been no short- buildings will be reduced by FROM HOME; lenges surrounding data protec- age of narrative on the future of higher operational costs. HOWEVER, A BALANCE WILL NEED TO BE STRUCK BETWEEN THE NEEDS OF EMPLOYERS AND THEIR EMPLOYEES, AS OFFICES BEGIN TO REOPEN gazette.ie Law Society Gazette July 2021 News in depth ANALYSIS 51
“Younger people now coming when a junior can’t just knock In her business, the majority into businesses expect sustainabil- on somebody’s door with a ques- of employees have said that they ity to be dealt with seriously,” she tion,” she said. would like to continue working added. from home full-time. Those who Committee chair Anna Marie Taking the temperature come into the office will do so two ONE OF THE Curry commented that in-house Rachel Tobin (senior director, to three days a week. lawyers are perhaps more used to EMEA associate general coun- ‘Zoom fatigue’ was a real issue, FALLOUTS, collaboration than those in pri- sel and global privacy counsel at she observed, and screen-time HOWEVER, vate practice. Zendesk) said that anonymous should be limited. Employees For young lawyers, work- surveys were an excellent way of should be encouraged to schedule WOULD BE ing from home at the very start taking the temperature and could time for lunch, to go for walks to of their careers is obviously not yield powerfully honest answers make and take calls, and to take INCREASED ideal, Curry added, since mentor- about how employees are doing their annual leave. Management MONITORING OF ing is such an important part of working from home, and gener- should also consider the impact training. “It’s much more difficult ally dealing with the pandemic. of isolation and work-related EMPLOYEES 52 ANALYSIS News in depth July 2021 Law Society Gazette gazette.ie
stress, and put in place measures Grogan (Richard Grogan & ture’. Innovations such as elec- to help employees. In doing so, Associates) warned that working tronic signatures would continue they should take account of their from home might give rise to a to play their part in the future, personal situations (whether liv- raft of claims in terms of ergo- since they saved so much unnec- ing alone, with dependent par- nomics and workplace safety. essary moving around of docu- ents, or other dependants, etc). He also pointed out that mentation, she added. Zendesk, for example, encour- remote-working policies should However, a warning note was ages employees not to check also cover those who were work- sounded that employer insurance emails after a certain time in the ing abroad. There might well policies might be more difficult evening. be jurisdictional issues and tax to obtain, given a scattered work- Employees were also asked implications arising out of work- force, and that the law might be not to print anything at home for ing outside of the country for too too heavily weighted against data-privacy reasons, to make use long. employers. Things might come of shredders, and to avoid saving Bord na Móna company secre- full circle if working from home sensitive documents directly to a tary Anna-Marie Curry pointed became more of an administra- desktop or home computer. out that what employees had tive burden than it was worth, ONE PARTICIPANT Firms should also be aware tolerated during the COVID the discussion heard. that an employee’s spouse might emergency wouldn’t necessarily Employers might need to be SAID THAT well be working in the same hold when business returned to appeased by assuring them that COLLEAGUES home office, and could even normal. the working-from-home envi- be working for a rival business. Group discussion yielded the ronment was fully compliant HAD MOVED TO And working from a coffee shop insight that interactive group with health-and-safety regula- offered no certainty that the work was perhaps more difficult tions. THE WEST OF Wi-Fi network was secure. in a Zoom setting, though virtual IRELAND IN THE Scheduling certain days to meetings could be highly efficient Data mining have no Zoom calls at all, and a in terms of travel-time saved. Linda Ní Chualladh (head of pri- EXPECTATION ‘half-day Friday’ was also help- Zoom was deemed to be better vacy – legal, EMEA, Citi) works ful, Tobin noted. than a phone call, as it allowed for a company that has 210,000 OF CONTINUED documents and slides to be employees, with offices in 160 REMOTE WORK, Remote-working policies shared, the participants agreed. countries. Ní Chualladh said that Health-and-safety guidelines and remote working would yield a lot ONLY TO proper remote-working policies Innovations of data on employees. were also key, the panel discus- Curry added that real benefits This was especially so where SUBSEQUENTLY sion heard, in terms of the fit-out and deficiencies had been discov- companies used and deployed BE CALLED BACK for a proper ergonomic worksta- ered during the past 12 months, newer-tech applications to moni- tion when working from home. but that the benefits should defi- tor security, service issues, and INTO THE OFFICE Employment lawyer Richard nitely remain as ‘part of the pic- fraud practices, including verifi- cation of identity and individual employee engagement. This would yield data in terms of IP addresses, browsing his- tory, keyboard click rates, and so forth. All of this information naturally raised questions of how such data should, or should not, be used. Ní Chualladh said that 47% of employees globally were con- sidering a career move as a result of COVID, and many had made long-term decisions on the back of the pandemic. One participant said that col- leagues had moved to the west of Ireland in the expectation of continued remote working, only to be called back subsequently to Ebba Mowat, Savills Ireland the office. gazette.ie Law Society Gazette July 2021 News in depth ANALYSIS 53
Zendesk’s Rachel Tobin pre- necessity and proportionality, ing counsel – especially if they dicted a figure of 42% (on aver- Ní Chualladh said. Employers were not in the same location – age) of the workforce coming should think of introducing a and this could lead to delays dur- back to work in the office. code of ethics in terms of how ing trials. they treat their employees and Wi-Fi checks in advance Digital transformation their data, beyond mere compli- of remote hearings were also COVID had accelerated digi- ance with the law. important, the discussion heard. tal transformation, Tobin said. “Trust between both employer She predicted a future mix While nobody was surprised that and employee has to work both of hybrid remote and in-person digital transformation would ways, so I think a code of ethics is hearings, where expert witnesses, happen, people were quite sur- a really good idea,” Anna-Marie especially those from outside prised that it had happened Curry agreed. the jurisdiction, might be heard A WARNING NOTE “whether we wanted it or not”. virtually, while other witnesses WAS SOUNDED The changes had resulted in a Remote hearings would attend in person. shift away from place-driven Siobhan Hayes (head of litiga- Hayes said that managing THAT EMPLOYER work and towards purpose- tion at the State Claims Agency) hearings was more complex with driven work. ran through the legislation and COVID-19, as teams and wit- INSURANCE One of the fall-outs, however, practice directions that intro- nesses needed to socially distance would be increased monitoring duced remote hearings in the and wear facemasks. POLICIES MIGHT of employees. Technology was teeth of the crisis. Under the superior courts’ BE MORE now available that could measure It took a lot more work to practice directions, consultations eyeball engagement onscreen, set up and run remote hearings, or negotiations are not permitted DIFFICULT TO to determine the level of atten- the discussion heard, since, in within the court buildings, so it tiveness among employees. “To general, they were less straight- can be more difficult to discuss OBTAIN, GIVEN quote Spider-Man’s Uncle Ben, forward, and involved addi- matters or take instructions dur- A SCATTERED ‘with great power comes great tional preparatory requirements, ing a hearing. responsibility’ – so just because including lodging hard-copy Concerns about security and WORKFORCE, you can do these things doesn’t booklets in advance of hearings. data protection that limit the mean you should,” she said. In addition, it could be diffi- printing of confidential docu- AND THAT THE A data-centric world created cult to maintain the gravitas of ments at home were also a factor LAW MIGHT BE huge levels of responsibility in the live courtroom environment, in practitioners having to learn terms of what was done with that but lawyers had to do their best rapidly how to mark-up and TOO HEAVILY data, she warned. in terms of managing the bound- annotate documents on-screen. If employers made decisions aries. This kind of innovation had WEIGHTED based on data, they would have Hayes added that it was also pushed lawyers out of their com- AGAINST to account for how they gath- more difficult to have a quiet fort zone over the past year, the ered that data, in the context of word with clients, or with oppos- discussion heard. EMPLOYERS 54 ANALYSIS News in depth July 2021 Law Society Gazette gazette.ie FROM LITTLE ACORNS... The Dublin Solicitors’ Bar Association was founded in 1935. Kevin O’Higgins looks back at its 86 years of representing Dublin solicitors
KEVIN O’HIGGINS IS PRINCIPAL OF DUBLIN FIRM KEVIN O’HIGGINS SOLICITORS AND IS A PAST-PRESIDENT OF BOTH THE LAW SOCIETY AND THE DSBA
he DSBA is the largest bar a newly commissioned chain of John Buckley, who brought a association in the country, office to the newly formed associ- motion to council that members with a membership of over ation – which has been worn with be allowed to bring “lady guests” T3,000. Initially called the Dublin pride by each of its 84 presidents to the annual dinners. Moya Circuit and District Court Bar since. Quinlan became president in Association, it changed its name The first annual dinner was 1979 – the following year becom- in 1937 to reflect a broader reach. held in 1937 under the presidency ing president of the Law Society. The first president was Arthur of John S O’Connor in the Dol- Some of the many other promi- Bradley, and the first secretary phin Hotel. At the 1939 annual nent Dublin solicitors who acted was Brendan T Walsh. While dinner, President of the Law Soci- as president during the 1950s to it may not have the antiquity of ety Daniel J Reilly said that there 1990s were two generations of some other bar associations, it was no better way of establish- the Pigot family (David R in 1955 THE DSBA has a rich history, and has been to ing closer links than through bar and his son, also David R, 20 the fore of legal life in the capital associations across the country. years later), JM Farrelly (1965), CONFERENCE since its inception. Over the decades, various topical Ernest Margetson (1966), Eamon HAS BECOME Why it took until the mid-’30s issues exercised the DSBA, and it Sheil (1967), Edward Byrne for colleagues to form an asso- made numerous representations (1968), Bruce St John Blake AN INTRINSIC ciation was probably because of to Government. (1969), Gerard M Doyle (1970), a perception that the ‘Dublin During the early years, presi- Thelma King (1973), Johnny PART OF THE Law Society’ was already pres- dents included: Sean O’hUadhaigh Hooper (1976), Moya Quinlan ASSOCIATION’S ent in the Four Courts Solicitors’ (1936), John S O’Connor (1938), (1980), Rory O’Donnell (1981), Building. While perhaps having John Cusack (1939), JP Col- Laurence K Shields, Elma Lynch, ACTIVITIES, some validity, the Law Society’s lins (1941), Charles McGonagle Gerard Griffin, Geraldine Clarke role and reach was different. The (1941), Brendan T Walsh (1948), (1990), Dominic Dowling (1991), AS A MEANS DSBA has always worked con- PC Moore (1949), Desmond Terry Dixon, Tony Sheil (1992), OF COUPLING structively and in support of the Moran (1950), and James J Michael D Murphy, Justin Mc Law Society, while supporting its O’Connor (1951). Kenna, Gerard Doherty, Ruad- GREAT FUN AND membership on the ground. han Killeen (1997), and Hugh COLLEGIALITY Rock around the clock O’Neill (1998). Born in a Dublin street In 1954, the Solicitors Act brought These presidents, among WITH A GENEROUS In fact, the catalyst for the forma- major reform to the regulation of others, steered the association tion of the DSBA arose from an the profession. During the 1950s, through a plethora of legal issues DOLLOP OF CPD. altercation and subsequent brief the DSBA continued to meet and that arose, including court delays, imprisonment of a colleague dine in the Solicitors’ Buildings in poor conditions of courthouses, THERE IS ALWAYS appearing before a judge in the the Four Courts. The first female legal costs, and judicial appoint- INTRIGUE AND Bridewell. This caused conster- council member was Thelma ments. nation among the profession, King in 1965, who went on to FASCINATION which saw it as heavy handed and become the first woman president Party like it’s 1999 unfair, leading to a suspension of the DSBA in 1973 and, subse- During the 1990s, the DSBA SURROUNDING of practitioners attending the quently, a District Court judge. began to organise the annual THE PRESIDENT’S court. The colleague, as a mark A further move to include conferences. These have taken of appreciation to his colleagues women at social events was sug- place in such diverse locations CHOICE OF VENUE for standing by him, presented gested in 1978 by then president, as New York, Lisbon, Chicago, gazette.ie Law Society Gazette July 2021 News in depth ANALYSIS 55 FROM LITTLE ACORNS...
DSBA dinner 1937
THE CATALYST FOR THE FORMATION OF THE DSBA AROSE FROM AN ALTERCATION AND SUBSEQUENT IMPRISONMENT OF A COLLEAGUE APPEARING BEFORE A JUDGE
The old Bridewell District Court, where the DSBA was born IN THE BRIDEWELL Assigned carpark spaces with 24hr security, only a five minute walk from the Four Courts. €160 per month.
Email us at [email protected] for more details
M&K_LSG/LD 91X123 AW.indd 1 24/02/2011 16:40 gazette.ie Law Society Gazette July 2021 News in depth ANALYSIS 57
Washington, St Petersburg, Buenos Aires, Rome, Chicago, Bordeaux, Berlin, Cape Town, and New Orleans. The DSBA conference has become an intrinsic part of the association’s activities, as a means of coupling great fun and colle- giality with a generous dollop of CPD. There is always intrigue and fascination surrounding the president’s choice of venue – and colleagues from across the coun- try are always welcome. A critical moment in asso- ciation history was the cre- ation of The Parchment, under the initial editorship of Justin McKenna. Subsequent editors have included Stuart Gilhooly, Keith Walsh, myself, and the incumbent – long-standing edi- tor John Geary. The Parchment is a high-qual- ity magazine full of practical information, and is reflective of the Dublin legal social scene. During the ensuing decades, presidents have included Helen Sheehy (2001/02), Brian Gal- lagher (2007), Michael Quin- lan, James McCourt (2002/03), John O’Connor (2003/04), Orla Coyne (2004/05), David Bergin (2006/07), and John P O’Malley (2009/10). All the DSBA female presidents: Helen Sheehy, Geraldine Clarke, Moya Quinlan, Orla Coyne, Elma Lynch and Thelma King In recent years, Moya Quin- lan, Andy Smyth, Laurence A MOVE TO Shields, Elma Lynch, Gerard from all courts meet colleagues The consistent theme and Griffin, Geraldine Clarke, James in a social and relaxed setting. message of each president is – INCLUDE WOMEN McCourt, Michael Quinlan and At the heart of the DSBA have as always – to foster collegiality AT SOCIAL EVENTS Stuart Gilhooly have served been impressive continuing pro- and goodwill among the mem- as Law Society presidents as fessional development courses. bership, and to help and assist WAS SUGGESTED well. Some also moved onto the The formula has always been the them in practice in every pos- bench, including Judges Gerard same: high-quality presentations, sible way. IN 1978 BY THE Griffin, John O’Connor, and ideally from among its member- At its very core is the small PRESIDENT, James McCourt. ship, at an affordable cost. staff who generate its CPD offer- In recent years, the asso- ings, look after the membership, WHO BROUGHT Golden years ciation has continued to thrive, coordinate committee meetings, An initiative of John O’Con- with huge strides being made generate template precedents, A MOTION TO nor (now Circuit Court judge) under the respective presidencies and field telephone queries. COUNCIL THAT was the annual ‘Golden Oldies’ of Stuart Gilhooly, Geraldine The association was most for- lunch, to honour those of our Kelly, John Glynn, Keith Walsh, tunate to have as its first salar- MEMBERS BE colleagues in practice for over 50 Aaron McKenna, Eamon Shan- ied administrator, Mary Rigney; years. non, Áine Hynes, Robert Ryan, followed in more recent years ALLOWED TO BRING Another part of the DSBA Gregg Ryan, Tony O’Sullivan, by the ubiquitous Maura Smith ‘LADY GUESTS’ TO calendar is the Judges’ Dinner, and the current holder, Joseph – always pleasant, helpful and where Dublin-based judiciary O’Malley. available to the membership. ANNUAL DINNERS 58 ANALYSIS Human rights July 2021 Law Society Gazette gazette.ie DEATH KNELL FOR THE DEATH PENALTY? Two landmark cases in Malawi – one asserting the right to life as ‘the mother of all rights’; the other declaring the mandatory death penalty unconstitutional – appear to have announced the death knell for the death penalty there. Lindiwe Sibande reports
LINDIWE SIBANDE IS PROGRAMME OFFICER WITH IRISH RULE OF LAW INTERNATIONAL IN MALAWI
ess than a year after win- ther towards abolition, it must be Potential shift ning the prestigious Cha- considered within particular and The resentencing project was a tham House Prize in rec- significant sociopolitical realities. promising indication of a potential Lognition of the historic decision shift in judicial precedent on the to overturn Malawi’s contro- Establishing legal precedent death penalty. Nonetheless, under versial 2019 tripartite elections Although the Khoviwa case is the the Malawian Penal Code, sections (the award cited the “courage first to declare the death penalty 25(a) and 26, the death penalty and independence” of Malawi’s unconstitutional, the case is the remained a legal reality and could constitutional court judges “in latest, and most crucial, in a line of still be given as a sentence for par- the defence of democracy”), the landmark cases that establish legal ticular crimes. Malawian judiciary has made precedent on the death penalty in The 2021 Khoviwa decision now international headlines, once Malawi. holds that the above-mentioned again, by declaring the death pen- In the 2007 case of Francis Kaf- sections of the Penal Code must be alty there unconstitutional. antayeni and others v the Attorney read to mean the maximum prison In the landmark case of Charles General (Constitutional Case No sentence – life imprisonment. This Khoviwa v The Republic (MSCA 12 of 2005; [2007] MWHC 1), decision does not fall far from ALTHOUGH THE Miscellaneous Criminal Appeal the constitutionality of the man- practice, however. No 12 of 2017; [2021] MWSC datory death penalty for capital Although the death penalty DEATH PENALTY 3, 28 April 2021), the Supreme offences was brought into ques- remained legal after the Kafan- Court of Appeal held that the tion. In declaring the mandatory tayeni ruling, it was not carried HAS REMAINED right to life was “the mother of death penalty unconstitutional, out in the 15 years preceding the ON THE STATUTE all rights”. The court further the court ordered the rehearing ruling nor during the 14 years held that “without the right to of cases involving those who had afterwards. According to Amnesty BOOKS SINCE life, other rights do not exist” been given the death penalty. International, the last execution and, therefore, “the death penalty An initiative called the ‘Resen- was carried out in 1992, when 12 MALAWI not only negates; it abolishes the tencing Project’ took these people were hanged. GAINED ITS right”. cases. It comprised a coalition After the establishment of Although the death penalty has of criminal justice stakeholders, multi-party democracy in Malawi INDEPENDENCE remained on the statute books as well as local and international in 1994, all executions came to a since Malawi gained its indepen- human-rights organisations, and halt, arguably as a result of changes FROM THE dence from the British in 1964, led to the immediate release of in the political and judicial land- BRITISH IN 1964, a de facto moratorium was intro- 112 inmates. Many more are still scapes. The new constitution did duced in 2007. Malawi has sat being released after serving their retain the death penalty as a viable A DE FACTO midway between countries that custodial sentences, according sentencing option for particular actually enforce the death pen- to recent reports by the Malawi crimes. Yet, since 1994, no presi- MORATORIUM alty, and those that have abolished Human Rights Commission (see dent has signed a death warrant, WAS INTRODUCED it outright. ‘MHRC statement on abolition of despite its continued use in sen- Although the Khoviwa deci- death penalty in Malawi’ at www. tencing. Malawian death sentences IN 2007 sion certainly tips the scales fur- mhrcmw.org). could more accurately be described gazette.ie Law Society Gazette July 2021 Human rights ANALYSIS 59 PIC: IRLI
Dedza Prison as sentences to indefinite deten- number of activists attacked Mala- zania after being found guilty of There is more to do to abolish the tion. So why keep using the death wian courts for giving lenient sen- murdering a woman with albi- death penalty, legally – it must be penalty, even though there is no tences to those involved in kidnap- nism (BBC News, ‘Tanzania albino removed from the statute books political will to actually enforce ping, violence, and the killing of killers sentenced to death’). and more resentencing hearings it? persons with albinism. Although there is no official need to take place akin to the Kaf- In May 2019, the High Court data on public attitudes towards antayeni case, so that the cases of Death penalty and politics imposed the death penalty in the the death penalty, calls for stricter those who are currently on death The death penalty may have been case of R v Mikaele [(Sentence) sentencing for certain crimes row are reviewed. left as an option under the law to (Homicide Case No 238 of 2018); from the public may be an indica- That said, it would be hard to appease the public in instances [2019] MWHC 50 (3 May 2019)] tion that public attitudes tip more envisage a way that either the where certain crimes or cases on a 28-year-old man convicted of in favour of retaining the death courts or the executive could have aroused public outcry. In murdering a person with albinism. penalty than abolishing it. row back from the decision in several cases, various actors have Later in the same year, three For example, in a recent state- Khoviwa – that the death penalty called for stricter sentencing people convicted of killing a ment, the Malawi Human Rights violates the right to life. Further- and invoked the death penalty person with albinism were also Commission commended “stiffer more, the President of Malawi, as the ultimate punitive sentence handed down the death penalty punishments [for persons con- Dr Lazarus Chakwera, said in towards deterrence. by the same court. The judge who victed] of sexual offences” (see ‘A a statement in the aftermath of For instance, between 2014 imposed the sentence remarked statement to commend progres- the decision that “the rule of law and 2019, the United Nations that this was to act as a deterrent sive judgments on cases of defile- must be upheld and the inter- reported 150 cases of killings, against future attacks and homi- ment and call to further action’ at pretation of the law by the court attacks, and other human-rights cides (Al Jazeera, ‘Malawi: three www.mhrcmw.org). must be respected”. violations against persons with sentenced to death over killing of The Khoviwa ruling exists Overall, the situation is quite albinism in Malawi (see OHCHR, person with albinism’). against a backdrop of precedent, promising, however, the prac- ‘Malawi: UN experts urge action legal, political, as well as social tical implications of the case over albinism ‘atrocities’ in run- Not alone pressures. Activism centred ar- – given the political and social up to elections’). Malawi is not the only country ound the abolition of the death realities outlined, especially the Reports of killings, in particu- that has utilised the death penalty penalty has been a concerted use of harsh sentences for pub- lar, gained media attention and in this way. In 2015, four people effort between both local and lic appeasement – remain to be sparked various protests where a were sentenced to death in Tan- international actors in Malawi. seen. 60 BRIEFING Council report July 2021 Law Society Gazette gazette.ie
REPORT OF LAW SOCIETY COUNCIL MEETING 11 JUNE 2021 Sympathy lations 2021, drafted to provide work for solicitors, the Diploma and potential insurers to dis- The Council regretted the pass- certainty around solicitors’ obli- Centre’s recent win in Public Sec- cuss renewals, and that work was ing of former Council member gations in respect of the charges tor Magazine’s ‘Education Sup- underway on the 2021/22 PII Peter Murphy, from Donegal, on deposits, which were being port’ category at the 2021 Excel- Regulations. who was a provincial delegate for imposed by a number of banks, lence in Business Awards, and Ulster and a colleague of the late and how such charges should be the high level of participation in GEDI Task Force judge and past-president Frank treated by solicitors. the ongoing environmental law Michelle Ní Longáin (task force O’Donnell. It is expected that the regu- and climate change MOOC. chair) updated the Council on The Council also regretted lations will go before the next progress in implementing key the passing of the mother of the meeting of the LSRA, with a Finance recommendations of the GEDI Society’s director of education, target commencement date of 1 Chris Callan (chair of the Task Force, which had been cir- TP Kennedy, and the president October 2021. Finance Committee) reported culated to Council members in confirmed that he had written to on issues that included current advance. Mr Kennedy to express condo- Council election 2021 and anticipated practising cer- A number of items had been lences. In accordance with the bye-laws, tificate numbers, the manage- actioned with a view to encour- the Council approved dates rel- ment accounts of both the Law aging more female solicitors and External appointments evant to the 2021 election and Society and the Law School, and solicitors from more diverse back- The Council congratulated confirmed that the deadline for the budget 2022 process. grounds to seek election to Coun- Imelda Reynolds on her appoint- receipt of nominations will be cil and to participate in various ment as chair of the Institute of Wednesday 15 September 2021. PII other bodies that reside under the Directors, and Michael Quinlan Barry MacCarthy (chair of the aegis of the Law Society. on his appointment as chair of Education Professional Indemnity Insur- She reported that the president the Property Services Regulatory Richard Hammond (chair of the ance Committee) reported had written to the chairs/vice- Authority. Education Committee) reported that Council members would chairs of such bodies to encourage to the Council on the Small Prac- be invited to participate in a more diverse participation and Approval of regulations tice Traineeship Grant, the new dedicated PII meeting later in confirmed that a communications The Council approved the Solici- PPC syllabus design, the devel- the month, that meetings were plan to promote GEDI on the tors Accounts (Amendment) Regu- opment of a competency frame- being arranged with existing Council had been developed.
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@kingsinns Henrietta Street Dublin D01 KF59 kingsinns.ie/legalpracticethroughirish gazette.ie Law Society Gazette July 2021 Practice notes BRIEFING 61
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
CONVEYANCING COMMITTEE COMPLETION MONEYS After careful consideration, the banking services that would be caused either by the solici- dor’s solicitor would furnish Conveyancing Committee has allow for obtaining a bank tor’s dishonesty or by a dispute, the purchaser’s solicitor with decided to amend its longstand- draft. misunderstanding, oversight or redemption figures in respect ing recommendation regarding 2) A bank draft takes up to five other error. The risk of the lat- of the mortgage(s) secured the manner in which comple- working days to clear. ter four is reduced for a vendor’s against the subject property. tion moneys are to be furnished 3) An increasing number of con- solicitor who requests redemp- The vendor’s solicitor should, where there is an existing mort- tracts for sale contain a condi- tion figures using the QeD form when requesting redemption gage or charge (‘mortgage’) on tion that closing moneys are or requesting same under the figures in the case of residen- title and a release, e-discharge, to be provided on closing by certificate of title system, as he/ tial property, use the QeD discharge or vacate (‘discharge’) electronic funds transfer. she is entitled to rely on those form in order to avail of the will not be available on closing. 4) The decision of the English figures. The lenders who use protections provided by its Up to now, the following was Court of Appeal in the case of the QeD procedure or oper- use. the recommended practice: Patel & Anor v Daybells ([2001] ate under the certificate of title 2) On completion, the purchas- • Prior to completion, the EWCA Civ 1229). system have agreed that, where er’s solicitor would furnish the vendor’s solicitor would fur- 5) Undertakings are an integral the redemption figure provided completion money to the ven- nish the purchaser’s solicitor and essential part of the con- by the lender to the vendor’s dor’s solicitor’s client account with redemption figures in veyancing process. solicitor is incorrect, the lender by way of electronic funds respect of the mortgage(s) 6) The practice of complet- will furnish a discharge of its transfer. secured against the subject ing on a vendor’s solicitor’s security. 3) The vendor’s solicitor on property, undertaking to discharge the Taking into consideration that completion furnishes to the • On completion, the purchas- mortgage(s) on title is wide- the failure by a vendor’s solicitor purchaser’s solicitor an under- er’s solicitor would furnish spread, convenient and effi- to comply with an undertaking taking in the Law Society the completion moneys to cient. to furnish a discharge of the ven- approved form (see ‘practice the vendor’s solicitor by way dor’s mortgage(s) is an extremely notes’, ‘Precedent Letter of of two bank drafts, one in the In arriving at its view, the com- serious but rare event, and is Undertaking re Mortgage sum required to redeem the mittee has been mindful of a breach that may be enforced on Title’ at lawsociety.ie) to mortgage(s) and made pay- weighing the risks against the ultimately by the High Court by pay to the vendor’s lender the able to the relevant lending benefits of a change in recom- a claim on the vendor’s solicitor’s money required to redeem the institution, and the other for mended practice and has con- professional indemnity insur- mortgage(s) secured against the balance of the purchase sidered carefully the question of ance or by application to the the subject property and to moneys (if any) made payable comparative risks and benefits. compensation fund, the com- forward the discharge as soon to the vendor’s solicitor. The committee has consid- mittee has taken the view that as possible thereafter. ered the risks associated with it is acceptable for a purchaser’s 4) The vendor’s solicitor shall, The committee has decided to a purchaser’s solicitor accept- solicitor to accept from a ven- within five working days of recommend a change in prac- ing an undertaking from a ven- dor’s solicitor an undertaking to the date upon which the sale tice, having considered the mat- dor’s solicitor to discharge the furnish a discharge of mortgage has completed, furnish to the ter carefully, and in particular: mortgage(s) secured on the sub- except in cases where: purchaser’s solicitor evidence 1) There are increasing diffi- ject property. In the Patel case, a) The lender is not one who is a that he/she has discharged culties, costs, and delays for it was common case “that there party to the certificate of title to the vendor’s lender the solicitors in obtaining bank would always be some unquan- system, or money required to redeem the drafts. In particular, because tifiable (but no doubt small risk) b) The transaction is so large mortgage(s) secured against of the reduction in services whether from fraud or misadven- that the sum required to hon- the subject property. and lack of availability of tell- ture, in any conveyancing proce- our the undertaking might ers in banks, it can take a very dure designed to achieve … the exceed the mandatory mini- The attention of practitioners significant length of time to payment of money and the per- mum level of solicitors’ pro- is drawn to the practice note get a bank draft. Banks are fection of title [as] simultaneous fessional indemnity cover. issued by the Guidance and Eth- continuing to reduce branch transactions”. ics Committee on undertakings. numbers and the services The risk involved in accepting The committee accordingly now Where the foregoing arrange- available in the branches that an undertaking from a vendor’s recommends (save in the cases ments apply, general condition remain open. Some solici- solicitor to furnish a discharge referred to at (a) and (b) above) 6(f) of the standard Conditions tors may now be practising of a mortgage is that it may not that: of Sale (2019 edition) should be in areas where there are no be produced. Such failure may 1) Prior to completion, the ven- amended by special condition. 62 BRIEFING Practice notes July 2021 Law Society Gazette gazette.ie
CONVEYANCING COMMITTEE LPT UPDATE The Conveyancing Committee Revenue has also confirmed In circumstances where the cur- event if the LPT property history has had a number of meetings that, where there is more than rent sale meets the general clear- screen was clear at the time they with Revenue on various aspects one sale in a valuation period and ance criteria, the standard gen- purchased. of LPT that affect conveyancing general clearance applied on the eral clearance process should be Revenue has acknowledged practitioners, and confirms as fol- first sale, this is sufficient to con- applied. that, where the Household lows: firm the declared valuation for any A copy of the LPT clearance Charge liability comes to light and all subsequent sales within the documentation (including con- after the date of sale, and the sum LPT clearance in ‘second and valuation period. For example, firmation that the 2013 valua- due was the liability of a previous subsequent sales’ scenario a property with a declared valu- tion satisfied Revenue guidelines) owner, Revenue would not expect Following representations from ation of €300,000 is sold in 2014 for the first sale in the valuation the current owner to be liable for the committee, Revenue has for €350,000; general clearance period is sufficient to confirm the same. They suggested that, in reworded its website guidance would have applied at the time. declared valuation for any and all cases where sums due were the note on this topic, which clarifies The property is sold in 2019 for subsequent sales within the valua- liability of a previous owner but the matter for practitioners. €480,000; specific clearance is not tion period. In addition, a current have been put on the property Revenue has confirmed that, in what is required, as the general property history summary will history screen as arrears following cases where specific clearance has clearance for the first sale con- confirm that all LPT and House- a Revenue audit etc, Revenue can been applied for and granted, the firmed the declared valuation. hold Charge liabilities arising to put an indicator on the property valuation band originally declared In such circumstances, the fol- date have been paid in full. history screen saying that this sum will be the relevant band until the lowing would apply: if the vendor is not a charge on the property. next valuation date. For example, does not have specific clearance Guidelines on Household The committee agrees that, as a a property (outside Dublin) with for a previous sale (in the example Charge in LPT system matter of practice, this would be a declared valuation of €300,000 above, general clearance would The committee had asked Rev- sufficient evidence for title pur- (Band 5) sells for the first time in have applied to the 2014 sale) enue to review the problem that poses that there is no claim by 2019 for €480,000. This sales fig- and general clearance does not on arises where there was on the face Revenue against the property and ure is outside general clearance, so the face of the current sale apply, of the LPT property history screen that Revenue will pursue the mat- specific clearance is applied for and an application should be made to no Household Charge due at the ter with the previous owner as a granted. Revenue has confirmed Revenue for specific clearance. In time a purchaser closed the sale of debt due. Revenue is to put a pro- that the relevant band remains these circumstances, Revenue will a property, but Revenue later finds cess in place to reflect that there Band 5 for any subsequent sales in issue a confirmation that the con- out that a previous owner had is no charge on the property, the valuation period. ditions for general clearance are misdeclared or not declared for even though the property history The committee requested that satisfied and that, accordingly, the Household Charge and the arrears screen says there are arrears, and Revenue put something on the relevant band remains the valua- due by the previous owner are then an IT development is needed for LPT property history screen to tion band originally declared. This placed on the property history this. Until the process and IT show if specific clearance had will confirm that all LPT and screen as arrears. This prevents has been put in place, Revenue been granted in a previous sale in Household Charge liabilities have the current owner from selling the has confirmed that solicitors for a valuation period. The ‘specific been paid and returns filed and that property without addressing the vendors in this situation should clearance’ indicator has now been the property valuation (as at 1 May previous owner’s liability, as unpaid contact them as early as possible made available by Revenue and 2013) was reasonable. This LPT Household Charge is a charge on in a transaction at lpt@revenue. is included in the LPT history clearance should be retained with the property. ie to have the matter resolved by details screen. The date the spe- the title documents, as it should be The Law Society’s view is that provision of a letter confirming cific clearance that was granted is produced on any subsequent sales the current owner should not that Revenue has no charge on also included. within the valuation period. be adversely affected by such an the property.
St. Michael’s House provides a comprehensive range of services and supports to adults and children with intellectual disabilities and their families in 170 locations in the greater Dublin Area. Funded by the Health Service Executive (HSE), TUSLA and the Department of Education and Skills, and supporting over 1950 individuals, the services and supports provided by St. Michael’s House include; Residential supports and Independent living, Clinical supports, Day supports, Schools, Respite supports and Vocational training services. St. Michael’s House is committed to delivering services and supports based on the needs, wishes and choices of people Please contact with an intellectual disability, based in communities and connected to natural support networks. [email protected] Expressions of Interest are invited for a and th Voluntary Director/Trustee with a legal background by 26 July 2021 for further expertise for the St. Michael’s House Board. Preparation for and attendance at approximately 10 Board meetings per information and details of annum is required. In addition, all members of the St. Michael’s House Board are required to serve on one subcommittee the application process and to attend meetings of that committee. gazette.ie Law Society Gazette July 2021 Practice notes BRIEFING 63
CONVEYANCING COMMITTEE LPT INTEREST Practitioners should note the on the PHS. Solicitors should by both the solicitor for the ven- ‘deferred’, interest is payable at provisions of section 149 of the not rely on the PHS in this dor and the solicitor for the pur- 4% per annum. In such cases, an Finance (Local Property Tax) Act regard. chaser to ensure that any such application should also be made 2012, which provide that inter- When a property is being sold undertaking includes arrears of to Revenue well in advance of est shall be payable on unpaid and there are arrears of LPT, the LPT and interest due. closing a sale to calculate the LPT. The rate of interest pre- vendor’s solicitor should make Problems have arisen in cases interest due. scribed in the act amounts to an application to Revenue (at where, on the closing of a sale, Revenue has indicated to the 0.0219% per day, or 8% per [email protected]) to calculate the the LPT due per the PHS is committee that a new format annum. amount of interest due, which paid but not the interest, as a of PHS has been designed that Although there is an interest should be paid before closing. subsequent PHS will show that will, in appropriate cases, high- column in the Property History If, despite the provisions of the LPT has been paid but will light by use of a footnote that Summary (PHS), as interest is the act, the LPT is to be paid then show the amount(s) out- interest is accruing on outstand- calculated on a daily basis, the from the proceeds of sale and standing and due for interest. ing liabilities. The new form of interest (if any) due on unpaid an undertaking is being given in In all cases where the PHS PHS should be in use within the LPT is seldom if ever shown this regard, care should be taken shows that LPT has been next couple of months
CONVEYANCING COMMITTEE NPPR AS A CHARGE ON PROPERTY The Local Government (Charges) not a purchaser and/or a solici- veyancing counsel. The advices on a regular basis on what it Act 2009 affected and continues tor for a purchaser who acquires received from counsel were that believes to be prudent convey- to affect the sale of certain ‘resi- such a property for full consider- a bona fide purchaser acquiring ancing practice. dential property’ (as defined in ation in money or money’s worth property for full consideration in The committee is of the opin- the 2009 act), being in essence after the expiry of 12 years from money or money’s worth follow- ion that it is reasonable for a non-principal private residences a given liability date as defined ing the expiry of 12 years from a prudent solicitor to advise a pur- (NPPR) from 31 July 2009. Sec- in section 3(1) of the 2009 act given NPPR liability date does chaser acquiring property for tion 3 of the act imposed an obli- should be concerned with any not need to be concerned with full consideration in money or gation on ‘the owner’ of such a liability for non-principal pri- any liability for non-principal money’s worth to proceed with a property on the liability dates of vate residence charge falling due private residence charge due in purchase without raising any req- 31 July 2009 and 31 March in the on such liability date. As stated respect of such liability date. uisitions or objections in relation years from 2010 to 2013 inclu- above, the first liability date was While it is not the practice to any NPPR charge outstanding sive to pay a charge of €200 to 31 July 2009. of the committee to interpret following the expiry of 12 years the local authority in which the Given the significance of this the law (and therefore practitio- from its liability date. Otherwise, NPPR was located. issue for the profession, the com- ners should consider this matter the 12-year limit referred to in Section 7(1) of the 2009 act mittee obtained an opinion on themselves), the committee does section 7(2) of the 2009 act would states: “Any charge or late pay- the matter from a leading con- give guidance to the profession be meaningless. ment fee due and unpaid by an owner of residential property PROBATE, ADMINISTRATION AND TRUSTS COMMITTEE shall, subject to subsection (2), be and remain a charge on the property to which it relates.” PAYMENT OF FUNERAL EXPENSES Section 7(2) states further: Following on from previous directly to the funeral director BSU_1.1-June-2020.pdf. “The said property shall not, as practice notes in the Gazette or to a relative who has paid the The other financial institu- against a bona fide purchaser for (October 2011, p46, and Jan/ funeral director, on submission of tions, such as building societies, full consideration in money or Feb 2016, p48), practitioners the relevant receipts. credit unions and the Post Office money’s worth or a mortgagee, are again reminded that funeral The AIB form for release of should have similar procedures in remain charged with or liable expenses are the priority debt funds to pay the funeral expenses place. to the payment of such unpaid payable from the assets of the can be accessed at aib.ie/content/ Practitioners should engage charge or late payment fee after deceased, even in cases where the dam/aib/personal/docs/help- with the executor or with the per- the expiration of 12 years from deceased died insolvent, and can and-guidance/deceased/funeral- son entitled to extract the grant of the date upon which the amount be paid before a grant of repre- expenses.pdf. The Bank of Ire- administration to arrange for this concerned fell due.” sentation issues. land form for release of funds as soon as practicable after the ini- The committee has received Where the deceased had suf- to pay the funeral expenses can tial meeting with same, and when a large number of queries from ficient funds in a bank account, be accessed at personalbanking. the various bank accounts have the profession as to whether or the bank will release funds, either bankofireland.com/app/uploads/ been identified. 64 BRIEFING Practice notes July 2021 Law Society Gazette gazette.ie
ADR COMMITTEE NEW HIGH COURT PRACTICE DIRECTION – APPLICATIONS PURSUANT TO CONSTRUCTION CONTRACTS ACT 2013 The introduction of the Con- period at enforcement stage of expedition and consistency”, has Papers will need to be filed in struction Contracts Act 2013 adjudication decisions has been appointed Mr Justice Simons as hard copy in the list room on the brought about welcome reform prolonged, flying in the face of the presiding judge for adjudi- previous Friday, along with an for the construction industry. what the act was intended to pre- cation matters, and the practice electronic copy, which is to be The act introduced a new pro- vent. Following strong recom- direction will allow applica- emailed to the appropriate reg- cess of dispute resolution in mendations from the ADR Com- tions, pursuant to section 6(11) istrar. respect of payment claims that mittee and communication from of the act, for leave of the court This is an important change arise in construction contracts, the President of the Law Society, to enforce or enter judgment to to the High Court practice in the form of adjudication. The the President of the High Court be made returnable before Mr directions, and the impact of effect of such a change was to has recently issued a new practice Justice Simons at 10.30am on it cannot be overstated for the protect parties to construction direction (HC 105) for adjudica- the first available Wednesday. construction industry. It will contracts by facilitating binding tion enforcement applications, The judge will give such direc- have the effect of significantly payment claims to preserve the which came into effect on 26 tions as are deemed necessary in improving the system of enforc- relevant project cash-flow. April 2021. ensuring that an application will ing decisions of this nature in Although the act did result in The President of the High be heard and determined with all Ireland and will make the act a dramatic change, the waiting Court, “in an effort to ensure due expedition. more effective.
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GUIDANCE AND ETHICS COMMITTEE TEN STEPS TO STRENGTHENING YOUR FIRM IN A CRISIS 1) Assess the crisis – every problem is its most valuable resource. 6) Marketing and networking – 8) Contingency plans – an impor- has a solution. Invest time and Retention of talent is impor- increase the visibility of your tant aspect of business in a effort in assessing the crisis. tant, and a successful firm firm online. Consider creat- crisis is having contingency Be aware of your environment must invest in its staff. ing a link on your website plans in place. Plans are and, in particular, your clients’ Reassure staff of the firm’s providing regular updates on essential for succession and environment. Keep your per- commitment to them and topics beneficial for clients, unexpected events. Never spective. consider measures such as including updates on the law. wait for the event to happen. 2) Grow and strengthen communica- remote/flexible working as Consider video-talks for cli- 9) Mindfulness and wellbeing – tions with clients – communicate an option. Business and oper- ents, which will also promote awareness of mindfulness with your clients regularly in a ational needs may dictate that your firm. Be a voice of reas- and wellbeing can help build prompt and transparent man- there will be situations that surance and guidance to your resilience to unpredictability ner. Written communications clearly require staff to be clients. in a pressurised, competitive are fine, but consider picking office-based. 7) Use technology – ensure staff and volatile environment. up the phone – a conversation 5) Develop a process improvement have the tools and sup- Support one another, cele- is more personable and can plan – review your firm’s ports necessary to enable brate achievements, and learn result in a deeper professional business processes, both them to meet the crisis – from mistakes. Aim to better relationship. formal and informal pro- remote working, e-discovery, yourself, rather than beat the 3) Improve communications within cedures. Engage with your e-booklets, remote hearings, competitor. your firm – engage with col- team and clients when con- remote settlement talks, and 10) Learn – history is a learning leagues, seeking their feedback sidering/implementing new remote consultations are cur- experience – as long as we – both positive and negative. or improved processes that rently the new norm, and learn. Learn the lessons of 4) Reassure staff – a firm’s staff affect them. may well continue to be so. the crisis, and do not repeat.
CONVEYANCING COMMITTEE UPDATE TO THE PROFESSION NON-LAW-SOCIETY FORM OF CERTIFICATE OF TITLE NAMED ‘COMMERCIAL REAL ESTATE (GENERAL) – SECOND EDITION 2021’ PREPARED BY PROFESSIONAL SUPPORT LAWYERS REPRESENTING A NUMBER OF LAW FIRMS The Conveyancing Committee is Society Approved Forms (2010 high-value commercial transac- first to be unusually complex, in aware that, on some commercial edition). tions, commonly referred to as the view of the Conveyancing lending transactions, solicitors It is possible for the borrower’s the ‘PSL Forum Certificate of Committee, it is generally quite are, from time to time, asked to solicitor to provide a certificate of Title’ – so named for the profes- balanced, it uses expressions provide certificates of title to the title in favour of a lender. Where sional support lawyers who lead and concepts that connect well lender. solicitors are willing to give a cer- the project. with those appearing in standard Practitioners are reminded of tificate of title to a lender, solici- A copy of the current form of conveyancing documents, and it the requirements set out in the tors are reminded to be cognisant this certificate of title is available aims to distinguish between mat- Solicitors (Professional Practice, that they should not be provid- on the Law Society’s website at ters that a solicitor can certify Conduct and Discipline – Secured ing one that creates a potential lawsociety.ie/commercialcerttitle. and those that are more suitable Loan Transactions) Regulations liability greater than the cover While this is not a Law Society for owner or third-party confir- 2009 (SI 211 of 2009), Solicitors provided by their professional form of certificate of title, and mation. (Professional Practice, Conduct and indemnity insurance, and that this note is not recommending The Conveyancing Commit- Discipline Commercial Property they should consider carefully the its use per se, the Conveyancing tee is supportive of the concept Transactions) Regulations 2010 (SI format of the certificate of title Committee has taken the oppor- of using a common form of cer- 366 of 2010), Solicitors (Profes- involved. tunity to review it in order to tificate of title. This approach sional Practice, Conduct and Dis- The Conveyancing Commit- share its views with the profes- should enable solicitors to cipline – Conveyancing Conflict of tee has been advised that a num- sion. become familiar with its form Interest) Regulation 2012 (SI 375 ber of firms have collaborated While the draft form of the and content, and should improve of 2012), and referred to in Com- to draft a form of certificate of PSL Forum Certificate of Title efficiency and help reduce risk. mercial Mortgage Lending Law title for use in complex and/or is lengthy, and may appear at The form developed by the 66 BRIEFING Guidance notes July 2021 Law Society Gazette gazette.ie
various firms to date, now in its liability on foot of the certifi- While no amendment should be the market. The Conveyancing second edition, also has a useful cate exceeds €1.5 million”. made to the main body of the Committee is aware that there explanatory memorandum. 2) Careful consideration should certificate of title, care should be are other forms of certificate of In addition to the points that be given to the matter of: taken to include all appropriate, title in use, and each form must are discussed in the explanatory a) Potential liability and an accurate, clear and concise disclo- be considered carefully by solici- memorandum to the PSL Forum appropriate cap on liability, sures against the relevant state- tors on a case-by-case basis. In Certificate of Title, the Law b) Proposed length of time that ments set out in the main body of some instances, while appearing Society would like to draw prac- it is anticipated that a right the certificate of title. shorter, other forms of certificate titioners’ attention to the follow- of action can be brought If a position is reached com- of title may be more onerous ing particular points that should against the certifying party, mercially between parties in rela- than the PSL Forum Certificate be considered by practitioners if and tion to matters such as: of Title. providing this (or any other simi- c) Reliance made by the cer- a) A cap on liability, and/or If practitioners are asked to lar form) certificate of title: tifying party on third-party b) The inclusion of an express provide a certificate of title, they 1) The form is not appropriate confirmations, such as law statement as to the maximum may find it more suitable to sug- for lower-value commercial or searchers and/or architects/ period during which an action gest using the PSL Forum Cer- residential transactions, where engineers, and the level of for damages can be taken tificate of Title, once they have the Law Society hybrid and/or insurance cover in place for against this certifying party, familiarised themselves with the other forms of certificate of title such parties. form itself, rather than a differ- are more appropriate. Please 3) The PSL Forum Certificate of these points should be addressed ent form of certificate of title refer to the ‘use of certificate’ Title is stated to be for the pur- in the opening section of the cer- that they may not be as familiar section of the explanatory mem- pose of the ‘transaction’. Care tificate of title in a manner first with. orandum and, in particular, note needs to be taken to ensure an agreed in writing with the lender. The Conveyancing Commit- the reference to the “intended appropriate definition of ‘the This note merely consti- tee wishes to thank the partici- for use in high-value com- transaction’ is used so the cer- tutes guidance to the profession pating firms, and particularly the mercial property transactions, tificate does not extend beyond and reference to a form of cer- professional support lawyers, for where the certifying solicitor’s matters of title. tificate of title that is in use on their input and cooperation.
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HELP RAISE VITAL FUNDS FOR THOSE EXPERIENCING HOMELESSNESS IN IRELAND AND KOLKATA gazette.ie Law Society Gazette July 2021 Regulation BRIEFING 67 SOLICITORS DISCIPLINARY TRIBUNAL
REPORTS OF THE OUTCOMES OF SOLICITORS DISCIPLINARY TRIBUNAL INQUIRIES ARE PUBLISHED BY THE LAW SOCIETY OF IRELAND AS PROVIDED FOR IN SECTION 23 (AS AMENDED BY SECTION 17 OF THE SOLICITORS (AMENDMENT) ACT 2002) OF THE SOLICITORS (AMENDMENT) ACT 1994
In the matter of Shane Law Society of Ireland ing Martin & Brett Solicitors, money-laundering and terrorist O’Donnell, a solicitor prac- (applicant) Mill Street, Monaghan, Co financing, and (b) provided with tising as Flynn & O’Donnell Gerard O’Reilly (respondent Monaghan, and in the matter ongoing training on identifying Solicitors, Loft 3, The Grain- solicitor) of the Solicitors Acts 1954-2015 a transaction or other activity store, Distillery Lofts, Distill- On 21 October 2020 and 15 April [2019/DT48] that may be related to money- ery Road, Drumcondra, Dub- 2021, the Solicitors Disciplinary Law Society of Ireland laundering or terrorist financ- lin 3, and in the matter of the Tribunal heard a case against the (applicant) ing, and on how to proceed Solicitors Acts 1954-2015 [2019/ respondent solicitor and found George Wright (respondent once such a transaction or activ- DT64] him guilty of professional mis- solicitor) ity is identified, in breach of Law Society of Ireland conduct in that he: On 15 April 2021, the tribunal regulation 5(5) of the Solicitors (applicant) 1) Failed to ensure that there found the respondent solicitor (Money-Laundering and Terrorist Shane O’Donnell (respondent was furnished to the Society guilty of misconduct in that he: Financing) Regulations 2016, solicitor) an accountant’s report for the 1) Caused or allowed a shortfall in 7) Failed to apply due diligence by On 25 March 2021, the Solici- financial year ended 30 April the sum of €10,001 on his cli- not obtaining proof of address tors Disciplinary Tribunal found 2017 within six months of that ent account as at 31 December and evidencing same on four the respondent solicitor guilty of date, in breach of regulation 2018, named client files, sales and professional misconduct in that he 26(1) of the Solicitors Accounts 2) Failed to insert the word ‘client’ purchases, in breach of regu- failed to ensure that there was fur- Regulations 2014 (SI 516 of into three client bank accounts lation 13(1) and 13(2) of the nished to the Society an accoun- 2014), and which report was of named clients, all held with Solicitors (Money-Laundering and tant’s report for the year ended 31 not received by the Society AIB, contrary to regulation 2 of Terrorist Financing) Regulations December 2018 within six months until 23 February 2018, and the Solicitors Accounts Regulations 2016, of that date, in breach of regula- 2) Failed to ensure that there 2014 (SI 516/2014), 8) Failed to adopt policies and tion 26(1) of the Solicitors Accounts was furnished to the Society 3) Acted on both sides in six named procedures in relation to the Regulations 2014 (SI 516 of 2014). an accountant’s report for the clients’ conveyancing transac- solicitor’s business to which The tribunal ordered that the financial year ended 30 April tions, in breach of the Solicitors the regulations of the Solicitors respondent solicitor: 2018 within six months of that (Professional Practice, Conduct and (Money-Laundering and Terrorist 1) Stand censured, date, in breach of regulation Discipline – Conveyancing Conflict Financing) Regulations 2016 2) Pay a sum of €500 to the com- 26(1) of the Solicitors Accounts of Interest) Regulation 2012 (SI apply, to prevent and detect the pensation fund, Regulations. 375/2012), commission of money-launder- 3) Pay the sum of €1,212 as a con- 4) Failed to stamp deeds on three ing and terrorist financing, in tribution towards the whole of The tribunal ordered that the named clients’ transactions breach of regulation 5 of the the costs of the Society. respondent solicitor: within a reasonable time or at 2016 regulations. 1) Stand advised and admonished, all, In the matter of Gerard 2) Pay the sum of €1,212 as a con- 5) Failed to stamp deeds in respect The tribunal ordered that the O’Reilly, a solicitor practising tribution towards the whole of of two named clients’ historical respondent solicitor: as Gerard O’Reilly & Co, Solic- the costs of the Society. matters, 1) Stand censured, itors, Mylerstown, Clonmel, Co 6) Failed to ensure that persons 2) Pay €5,000 to the compensation Tipperary, and in the matter of In the matter of George involved in the conduct of the fund, the Solicitors Acts 1954-2015 Wright, solicitor, practising as solicitor’s business were (a) 3) Pay the applicant’s measured [2019/DT12] Wright Solicitors, incorporat- instructed on the law relating to costs of €3,322.50.
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*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. 07_21 gazette.ie Law Society Gazette July 2021 69 PROFESSIONAL NOTICESNOTICES
WILLS Coote, Mary (deceased), late RATES of Cornmarket Street, Ennis, Co Clare. Would any person having knowledge of the whereabouts PROFESSIONAL NOTICE RATES of any will made by the above- RATES IN THE PROFESSIONAL NOTICES SECTION ARE AS FOLLOWS: named deceased, who died on 20 Wills – 155 (incl VAT at 23%) May 2021, please contact Bowen • € & Co, Solicitors, Pound Street, • Title deeds – €310 per deed (incl VAT at 23%) Sixmilebridge, Co Clare; tel: 061 • Employment/miscellaneous – €155 (incl VAT at 23%) 713 767, fax: 061 713642, email: [email protected] HIGHLIGHT YOUR NOTICE BY PUTTING A BOX AROUND IT – €30 EXTRA
Doyle, Thomas (deceased), late ALL NOTICES MUST BE PAID FOR PRIOR TO PUBLICATION. ALL NOTICES MUST BE of 34 Claddagh Road, Ballyfer- EMAILED TO [email protected] and PAYMENT MADE BY ELECTRONIC FUNDS mot, Dublin 10, who died on 12 TRANSFER (EFT). The Law Society’s EFT details will be supplied following receipt of your April 2021. Would any person email. Deadline for Aug/Sept 2021 Gazette: 11 August 2021. having knowledge of the where- No recruitment advertisements will be published that include references to ranges of post-qualification abouts of a will made or purported experience (PQE). The Gazette Editorial Board has taken this decision based on legal advice that indicates to be made by the above-named that such references may be in breach of the Employment Equality Acts 1998 and 2004. deceased please contact Michael Kelly, Howell & Company, 2 Tower Road, Clondalkin, Dub- Donnybrook, Dublin 4; tel: 01 on 26 January 2021. Would any 01 637 6262, email: grainne. lin 22; tel: 01 403 0777, email: 668 4333, email: solicitors@ person having knowledge of the [email protected] [email protected] manganobeirne.ie whereabouts of any will made by the above-named deceased, Egan, Delia (née Bourke) Judge, Audrey (deceased), or if any firm is holding same, Nesbitt, John (deceased), (deceased), late of Aughtaboy, late of 62 Coolamber Drive, please contact Patrick J Durcan late of 58 Clifden Road, Bal- Knock, Co Mayo, and formerly Rathcoole, Dublin, who died on and Co, Solicitors, James Street, lyfermot, Dublin 10, who of Upper Mace, Claremorris, Co 16 May 2021. Would any per- Westport, Co Mayo; DX 53002 died on 29 September 2020. Mayo, who died on 26 May 2021. son having knowledge of the Westport; tel. 098 25100, email: Would any person having Would any person having knowl- whereabouts of any will made [email protected] knowledge of the where- edge of the whereabouts of any by the above-named deceased, abouts of any will made by will made by the above-named or if any firm is holding same, Ward, Margaret (née Hynes) the above-named deceased deceased, or if any firm is hold- please contact Clear Solicitors, (deceased), late of 12 The please contact HJ Ward & ing same, please contact Patrick J 42 St Stephen’s Green, Dublin Haven, St Mobhi Road, Glasn- Co, Solicitors, 5 Green- Durcan and Co, Solicitors, James 2; tel: 01 644 5777, email: info evin, Dublin 9, and formerly of mount House, Harold’s Street, Westport, Co Mayo; DX @clearsolicitors.ie 20 Old Finglas Road, Dublin Cross Road, Dublin 6W; tel: 53002 Westport; tel: 098 25100, 11, who died on 22 May 2021. 01 453 2133, email: eithne. email: [email protected] Kavanagh, Gene (deceased), Would any person having knowl- [email protected] late of Ferndene Nursing Home, edge of the whereabouts of any Hyland, Annie (deceased), late Stradbrook, Blackrock, Co Dub- will made by the above-named of 587 North Circular Road, lin, and formerly of Neptune deceased please contact Gráinne TITLE DEEDS Dublin 1, who died on 30 April Lodge, Sandycove Point, San- Butler, Orpen Franks Solicitors In the matter of the Landlord 2010. Would any person having dycove, Co Dublin. Would any LLP, 28/30 Burlington Road, and Tenant Acts 1967-2019 and knowledge of a will made by the person having knowledge of Dublin 4; tel 01 637 6200, fax in the matter of the Landlord above-named deceased please the whereabouts of two codicils contact John Costello, Orpen executed by the above-named Franks Solicitors, 28-30 Burl- deceased on 19 January 2007 and ington Road, Dublin 4; tel: 01 4 September 2012, who subse- 637 6200, email: john.costello@ quently died on 27 June 2019, orpenfranks.ie please contact John C Walsh & Co, Solicitors LLP, 24 Ely Igoe, Francis (Frank) (deceas- Place, Dublin 2; tel: 01 676 6211, ed), late of 24 Rialto Cottages, fax: 01 661 1420, email: info@ Rialto, Dublin 8, who died on johncwalsh.ie 9 December 2020. Would any person having knowledge of a Shaughnessy (orse O’Shaugh- will made by the above-named nessy), Mary (orse Mamie) deceased, or if any firm is hold- (deceased), late of Friar’s Lodge ing same, please contact Tony Nursing Home, Ballinrobe, Co O’Beirne, Mangan O’Beirne, Mayo, and formerly of Dring- Solicitors, 31 Morehampton Road, neen, Cong, Co Mayo, who died 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. 07_21 gazette.ie Law Society Gazette July 2021 71 PROFESSIONAL NOTICESNOTICES
and Tenant (Ground Rents) (No ter of 41 Meath Street, Dub- 2) Act 1978 and in the mat- lin 8, and in the matter of an IS YOUR CLIENT INTERESTED ter of an application by Sheila intended application by Ann IN SELLING OR BUYING
Byrne in respect of the prem- O’Leary and Patricia Kelly ises known as Byrne’s Mini Take notice that any person hav- A 7-DAY LIQUOR LICENCE? Market, Distillery Road, situ- ing any interest in the freehold email: [email protected] ate in the parish of St Mary’s, estate of the following property: town of Wexford, barony of all that and those the premises web: www.liquorlicencetransfers.ie Forth, and county of Wexford; known as 41 Meath Street in Eircode: Y35 PHH1 the parish of St Catherine and Call: 01 2091935 Take notice that any person hav- city of Dublin, being a por- ing an interest in Byrne’s Mini tion of the premises comprised Market, Distillery Road, situate in and demised by indenture of within 21 days from the date of 9 December 1694 made between in the parish of St Mary’s, town lease dated 18 June 1935 and this notice. Sir John Temple of the one part of Wexford, barony of Forth, and made between Kellerman Eyre Take notice that, in default of and Richard Winstanley of the county of Wexford, Eircode: Y35 McMahon and Charlotte Eva any such notice being received, other part and therein described PHH1, the subject of an inden- Pilkington of the one part and Ann O’Leary and Patricia Kelly as the lands and premises therein ture of lease dated 18 November Bernard Brown of the other part, intend to proceed with the appli- described situate in the town of 1953 and made between Philip and described therein as “all that cation before the county regis- Chapelizod, which was then in Pierce & Company Limited of piece or parcel of ground situ- trar at the end of 21 days from the county of Dublin. the one part and William Goodi- ate and being on the west side the date of this notice and will Take notice that the applicant son of the other part for a term of Meath Street and known as apply to the county registrar for intends to submit an application SUPPORTING of 99 years from 29 September numbers 41 and 42 Meath Street the city of Dublin for directions to the county registrar for the city 1953 and subject to the yearly YOUR CPD in the parish of Saint Catherine as may be appropriate on the of Dublin for acquisition of the rent of £1 (one pound). and city of Dublin, containing basis that the persons beneficially freehold interest in the aforesaid NEEDS Take notice that Sheila Byrne in breadth on the east side or entitled to the superior interest properties, and any party assert- DIPLOMA CENTRE intends to submit an application front thereof next Meath Street including the freehold reversion ing that they hold a superior to the county registrar for the aforesaid 44 feet, and in breadth in the aforesaid premises are interest in the aforesaid premises Leaders in legal education with professional focus and practical insight county of Wexford for acquisi- on the west side or back thereof unknown or unascertained. (or any of them) are called upon tion of the fee simple and any 36 feet, six inches, and in length Date: 2 July 2021 to furnish evidence of the title to Flexible CPD recognised courses to suit a busy schedule intermediate interest in the from front to rear thereof or the Signed: Carroll Kelly & O’Connor the aforementioned premises to aforesaid premises, and any party north side 66 feet, three inches, (solicitors for the applicants), 24 The the below named within 21 days COURSE NAME START DATE PRICE asserting that they should hold a and from front to rear thereof on Palms, Clonskeagh, Dublin 14 from the date of this notice. MOOC in Environmental Law and Climate Change Open until 30 July 2021 Free superior interest in the aforesaid the south side 56 feet, six inches, In default of any such notice premises (or any of them) are be the same several dimen- In the matter of the Landlord being received, the applicant Diploma in Law 3 September 2021 €4,600 called upon to furnish evidence sions little more or less, which and Tenant Acts 1967-2005 and intends to proceed with the Diploma in Family Law 28 September 2021 €2,600 of the title to the aforesaid prem- said premises are delineated on in the matter of the Landlord application before the county ises to the below named within the plan thereto annexed and and Tenant (Ground Rents) (No registrar at the end of 21 days Certificate in Mediator Training 29 September 2021 €1,650 21 days from the date of this therein surrounded by a red 2) Act 1978 and in the matter from the date of this notice and Certificate in Aviation Leasing and Finance 30 September 2021 €1,650 notice. verge line and also the messuages of Quadrant House, Chapel- will apply to the county registrar Professional Doctorate in Law 4 October 2021 €6,000 In default of any such notice and buildings recently erected izod, Dublin 20, and 2B Mull- for the city of Dublin for direc- being received, Sheila Byrne thereon by the lessee”, held for a ingar Terrace, Chapelizod, tions as may be appropriate on Diploma in Environmental and Planning Law 5 October 2021 €2,600 intends to proceed with the term of 99 years from 25 March Dublin 20: applicant Quadrant the basis that the persons ben- Diploma in Insolvency and Corporate Restructuring 6 October 2021 €2,600 application at the end of 21 days 1933 and subject to the yearly Engineers Limited eficially entitled to the superior from the date of this notice and rent thereby reserved and to the Take notice any person having interest including the freehold Certificate in Data Protection Practice 6 October 2021 €1,650 will apply to the county registrar covenants by the lessee and con- any interest in the freehold estate reversion in each of the aforesaid Diploma in Criminal Law and Practice 8 October 2021 €2,600 for the county of Wexford for ditions therein contained, should (or any intermediate interest) of premises are unknown or unas- directions as may be appropriate Diploma in Construction Law 9 October 2021 €2,600 give notice of their interest in the the properties known as Quad- certained. on the basis that the persons ben- aforesaid property to the solici- rant House, Chapelizod, Dublin Date: 2 July 2021 Certificate in Property Law & Conveyancing for Legal Executives 9 October 2021 €1,750 eficially entitled to the superior tors named below within 21 days 20, and 2B Mullingar Terrace, Signed: Beauchamps (solicitors for Diploma in Finance Law 12 October 2021 €2,600 interest including the freehold from the date of this notice. Chapelizod, Dublin 20, held the applicants), Riverside Two, Sir reversion in each of the aforesaid Take notice that Ann O’Leary under an indenture of lease dated John Rogerson’s Quay, Dublin 2 Diploma in Judicial Skills and Decision-Making 13 October 2021 €3,000 premises are unknown, dissolved and Patricia Kelly intend to sub- Diploma in Tech and IP Law 13 October 2021 €3,000 or unascertainable. mit an application to the county Date: 2 July 2021 registrar for the city of Dublin TO LET Diploma in Education Law 29 October 2021 €2,600 Signed: Ebrill Solicitors (solicitors for acquisition of the freehold OFFICE SPACE – THE CAPEL BUILDING Diploma in Commercial Property 2 November 2021 €2,600 for the applicants), Iberius House, interest in the aforesaid prop- from 300sq.ft. to 7,500sq.ft Certificate in Immigration Law and Practice 4 November 2021 €1,650 Common Quay Street, Wexford; erty, and any party asserting that Eircode: Y35 TYD0 they hold a superior interest in Certificate in Trademark Law 9 November 2021 €1,650 the aforesaid property are called In the matter of the Landlord upon to furnish evidence of the CONTACT DETAILS e: [email protected] t: 01 672 4802 w: www.lawsociety.ie/diplomacentre and Tenant (Ground Rents) Acts title to the aforesaid property 01 872 0892 • [email protected] PSRA Licence: 001870 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. 1967-2005 and in the mat- to the solicitors named below Diploma Centre reserves the right to change the courses that may be offered and course prices may be subject to change. 07_21 72 FINAL VERDICT July 2021 Law Society Gazette gazette.ie
PRO BONOBO DOG-DAY AFTERNOON FOR TERRIER TERMINATOR The NYPD has decided to ‘put down’ its new crime-fighting robo-dog, NPR.org reports. When launched last Decem- ber, the Boston Dynamics ‘Digidog’ was lauded as the next big thing in saving lives, protecting people, and protect- ing officers. The terminator terrier could climb stairs and survey areas to identify dangers at crime scenes. The public was sick as a dog, however, when they learned of the US$94,000 contract with Boston Dynamics, and cited tion and the abuse of force. was “glad the Digidog was put alienating, and sends the wrong concerns over police militarisa- New York’s mayor said he down”, describing it as “creepy, message to New Yorkers”. FLATPACK FLATFOOT MONKEY SEE, FURTIVENESS MONKEY DO Ikea France has been ordered on offences between 2009 and A US law firm (which touts itself puff snack ‘Hot Cheetos’. The to pay a €1 million fine for spy- 2012. as “a team with experience and paralegal was quickly hired by a ing on its employees, The Irish Ikea France is believed to have compassion”) has fired one of its different firm, with its principal Times reports. The subsidiary spied on about 400 employees, paralegals after footage emerged blasting her previous employer, of the Swedish low-cost furni- using information provided by showing her climbing into a spi- accusing it of having a “cancel- ture giant collected data on the private detectives with close der-monkey enclosure at a Texas culture attitude, social-media vir- police records, lifestyle, and ties to the police. Most of Ikea’s zoo, CBSDFW.com reports. In a tue signalling and punishing their finances of employees and aspir- 30 stores in France took part. statement, the firm slammed the ‘best employee’ for something she ing employees. It is reported to have spent up behaviour as “irresponsible” and didn’t do on company time”. Though the practice started in to €600,000 annually on its “reckless”. The zoo boss criticised the the early 2000s, the trial focused employee investigations. An Instagram video showed the woman, however, saying that woman sitting on a rock under a they had contacted the DA about waterfall appearing to feed two pressing charges: “We can’t let VEG-LEG RECIPE FOR monkeys with the popular cheese- this behaviour go unpunished.” DISASTER Lawyers in Belgium went hungry BODY-WASTE-BUCKET after a recipe for asparagus gratin – which had mistakenly appeared BAR BOSSES APOLOGISE in a legislation database – was The Bar Standards Board (BSB) students being locked out of the deleted, Legalcheek.com reports. and Pearson VUE in Britain have online system on the day, being The blunder was discovered been criticised by an indepen- able to complete only three-quar- by lawyer Morgan Molle after dent review of their Bar exams in ters of their exams, and having an update to the official Moniteur August 2020, Legalfutures.co.uk to urinate in buckets because no Belge. The recipe concluded with reports. breaks were allowed. the line, ‘Bon Appétit!’ eur Belge is useless. You find Both organisations were inun- Both bodies have issued apolo- Molle commented: “I’ve had it everything there: laws, decisions, dated with complaints by dis- gies, with the BSB publishing an with people who say that Monit- recipes – you name it.” tressed candidates. Issues included action plan for improvements. STUDY WITH EXPERT LAW PRACTITIONERS
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