ISSN 1393−6956 aette ga 06
9 771393 695029 job inthe‘familybusiness’ McCarthy abouthertop The GazettetalkstoRuth No placelikehome THEM THARHILLS THERE’S GOLDIN The cryptocurrency WildWest LAW SOCIETY must employersandstaff meet? office –butwhatchallenges It’ll bealongroad backtothe Not inKansasanymore – andfoundwanting ment) Acthasbeenjudged The The great andterrible € Civil Liability(Amend- 4.00
JUNE 2020 gaLAW SOCIETY ette
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PRESIDENT’S MESSAGE LEADING BY EXAMPLE
s we slowly work through permit the phased return of certain workers on the current pandemic, we 8 June who, due to the nature of their work, can know that we must make maintain a two-metre distance. The reduction fundamental shifts. Shifts that of measures will be robustly and continuously address biological, physical, monitored in terms of adherence and effect. emotional and financial It is hoped that Phase 3 will be activated on 29 challenges. We must and we are changing our June. This phase also requires the continuance fundamental behaviours in how we undertake of remote working for all workers and businesses Aour work. It requires thought and creative that can do so; however, it does allow a return to planning. Our responses require evaluation for work for organisations where employees have low both ‘business as usual’ – delivered differently – levels of daily interaction with people, and where and future pandemic planning. social distancing can be maintained. As lawyers, we traditionally work in office environments. Many of us will be required Being prepared to make fundamental design changes to COVID-19 has taught us the value of being accommodate for social distancing. At a tactical prepared for pandemics. This means having level, it also means having stockpiles of required policies and practices ready to go when needed. PPE and other sanitation essentials. Most of all, It means robust IT systems to effectively manage it requires us to make informed decisions, both work from home. It has also taught us the value on personal and business levels. of communication. I have been struck by the Phase 2 of the Roadmap for Reopening very positive communication I have received Society and Business is upon us. Subject to the from colleagues throughout the country and, effectiveness of containment of the coronavirus, particularly, from the very constructive and Phase 3 will follow three weeks thereafter. The unwinding of the restrictions is on a risk-based approach, considering risk from the AS A PROFESSION, LET US perspective of protecting those vulnerable to infection, as well as protecting against causes, CONTINUE TO LEAD BY situations, circumstances and behaviours that may lead to risk of spread of the disease. EXAMPLE WHEN MAKING THE
Overriding principles NECESSARY FUNDAMENTAL The roadmap is guided by a number of overriding principles that focus on an approach SHIFTS that is safe, rational, evidence-informed, fair, open and transparent for the whole of society. proactive suggestions to keep business moving In order to limit the number and duration within the HSE guidelines. of social and business contacts, we will, for As we collectively and collaboratively move the foreseeable future, be part of micro- through the Roadmap, let us as a profession communities that will allow work to be continue to lead by example when making the conducted and social interaction to continue in necessary fundamental shifts. Let us dictate the order to promote wellbeing – but always with an future of our profession and let us proactively, eye to limiting the spread of the infection. and mindfully, stay connected to our colleagues On 8 June, we must continue to maintain and our clients. The strength of the profession remote working for all workers and businesses is each individual solicitor. The strength of each MICHELE O’BOYLE, that can do so. The roadmap does, however, individual solicitor is the profession. PRESIDENT 2 CONTENTS??????? ?????? June 2020 Law Society Gazette gazette.ie PIC: SHUTTERSTOCK
LAW SOCIETY GAZETTE • Vol 114 No 5 No place like home Not in Kansas anymore The great and terrible Volume 114, The Gazette talks to Ruth It’ll be a long road back to the The Civil Liability (Amend- McCarthy about her top offi ce – but what challenges ment) Act has been judged job in the ‘family business’ must employers and staff meet? – and found wanting number 5
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FEATURES
18 After the gold rush 38 Shirley not? Crypto-assets will remain a volatile investment and It’s a misconception to say that mere ‘change of use’ means of exchange, but regulation will reduce their use makes a party eligible to acquire the fee simple under the in fraud and will protect investors. Jennifer O’Sullivan ground-rents legislation. Gavin Ralston shuts that door calls the sheriff 42 I want to break free 26 Kerry all-star Practitioners in mental-health law should read the Ruth McCarthy tells Mary Hallissey about her recent decision in IF v Mental Health Tribunal closely, as transition from ‘coach’ to ‘star player’, and her role in it brings welcome clarity to the appeals process under global financial services company, Fexco the Mental Health Act. Harriet Burgess explains
32 Thorny question 48 Under pressure In Hegarty v HSE, Murphy J recently analysed the long- A positive aspect of the pandemic is that it has given us awaited Civil Liability (Amendment) Act 2017 and found the opportunity to talk more freely about our mental it ineffectual in providing solutions in catastrophic health than before. Renee Branson discusses the injuries cases. Kate Ahern grasps the thorn importance of wellbeing during COVID-19
8 42 6
REGULARS
4 The big picture 57 Briefing Standout photo of the month 57 Eurlegal 58 Practice notes 6 People 59 Guidance notes 11 News 60 Professional notices 64 Final verdict 52 Analysis 52 News in depth: Confusion reigned for two days while the judiciary clarified new health advice given to the Oireachtas 54 News in depth: The challenges involved in returning to the office after the lockdown 4 IN FOCUS June 2020 Law Society Gazette gazette.ie
THE BIG PICTURE
RECLAIM THE STREETS! Giant cats stalk the byways of old
PIC: SHUTTERSTOCK London Town, as humans cower behind wood and steel in... Oh, wait. That’s just Larry, the No 10 cat, out for a prowl on 21 May during the pandemic lockdown, keeping an eye on Cummings and goings gazette.ie Law Society Gazette June 2020 IN FOCUS 5 6 PEOPLE June 2020 Law Society Gazette gazette.ie THE DAY THAT WOULD HAVE BEEN
Máire O'Neill from William Fry and her son Darragh said they missed the samba drummers
Runners around the country marked the day that would have been the Calcutta Sinéad Maher, solicitor Staff members of Eugene F Collins Run on 23 May. The event has been postponed until 24 October due to COVID-19 restric- tions (see p13, May issue), but many wore old Calcutta Run or their firms’ T-shirts and ran alone or with family to mark the day. Pictured above is Calcutta Run committee member Ciarán Ahern from A&L Goodbody outside the closed Law Society. He said he couldn’t help but run the route on the day
Rachael Hession, Law Society Louise Lawless, trainee solicitor, McKenna & Co, Solicitors
Mairéad Blennerhassett and her husband Tom (IT manager, Law Society) Kevin Galligan, director, DX Ireland Derek Mahon, The Panel Philomena Whyte, Law Society gazette.ie Law Society Gazette June 2020 PEOPLE 7
Calcutta Run committee member Cillian MacDomhnaill (director of finance, Law Society), his daughter Clodagh, and his wife Cathy. His daughter Orlaith also participated and took the photo
Calcutta Run committee member Mick Barr of A&L Goodbody and his son Gordon
Rebecca Raftery, Law Society Anne Kelly and team from Leixlip firm Paul Kelly Solicitors
Ciarán Lyng, A&L Goodbody
Calcutta Run Committee member Jack Kennedy (A&L Goodbody) with his fiancée Orla John Cruise, Brown Bag Films President of the Law Society Michele O’Boyle ‘kangood' in Sligo 8 PEOPLE June 2020 Law Society Gazette gazette.ie ALL PICS: JOE BOLAND/NORTHWEST NEWSPIX ALL PICS: JOE BOLAND/NORTHWEST
DANCES WITH WOLVES ‘Liens’ and tigers and bears! Donegal solicitor Killian McLaughlin speaks to Andrew Fanning about his love of animals and why he set up the Wild Ireland Sanctuary
ANDREW FANNING IS A FREELANCE JOURNALIST
Earlier this month, a news story His father Ciaran, who runs the “Animals came first! I was fasci- through my phone. Yesterday, about the birth of six wild boarlets long-established firm of CS Kelly nated with nature as a child. The I was stamping deeds on the go, at the Wild Ireland Sanctuary in & Co in Buncrana (where Killian law came along later. Dad was a which is pretty incredible.” He Burnfoot, near Muff, Co Done- also works), was state solicitor solicitor, and I followed in his believes the pandemic has given gal, brought some welcome relief for Donegal from 1983 to 2005. footsteps.” us a glimpse of what is possible in from the relentless battle against Appearing at the Omagh Bomb His legal skills came in very the world of work in the future. the COVID-19 pandemic. Inquest, he established the right handy when he developed Wild The striped sextet, thought to of lawyers from the Republic to Ireland, a dream funded out of Lynxed in be the first of the species born represent clients at inquests in the his own pocket. “Mad ideas often Wild Ireland, which focuses on here in more than 800 years, North. come from solicitors – they’re animals once native to Ireland, were an unexpected ‘gift’ from a Killian’s wife Katie is also a used to hearing the word ‘no’,” such as bears, wolves and lynxes, female boar called Tory, after the solicitor at CS Kelly – they met at he jokes. opened in October last year. island. Blackhall Place, from where they Killian has a one-word answer “The legal background defi- What you may not know, how- both qualified in 2014. As well as to the question of how he man- nitely assisted me. I had to be ever, is that the man behind the a solicitor specialising in litiga- ages to combine his passion for a solicitor to get through the sanctuary, Killian McLaughlin, is tion and family law, Killian has a animals with his job as a solici- amount of red tape. Ireland has a solicitor from a family steeped in degree in zoology. So which came tor – technology. “I can access very high standards – there’s a the legal profession. first, the law or the lynxes? pretty much my whole office lot of legislation to get through,” gazette.ie Law Society Gazette June 2020 PEOPLE 9
Solicitor Killian McLaughlin with his wolves (from left) Finn, Fergus and Oisín 10 PEOPLE June 2020 Law Society Gazette gazette.ie
Killian says, explaining that he ning again. While the site is now seeing them in the flesh. Those at attempts at releasing wild boars, had to deal with two main State closed to the public, the work of Wild Ireland were rescued from but they can be very destructive organisations when setting up the caring for the animals goes on, as what was literally a prison cell in and can carry diseases. They can sanctuary. The National Parks do preparations for reopening. “I Lithuania. also breed rapidly, as they have no and Wildlife Service is respon- would hope I could open up in the “The bears were terrified when natural predator. At the moment, sible for licensing and inspec- coming weeks. Social distancing we set them free onto grass – they we don’t have the wilderness in tion, as well as a number of other is quite easy inside Wild Ireland. had only known concrete. They Ireland – nor the enthusiasm for licences and permits related to the The problems will be the entrance don’t even know how to swim.” them.” importing of wild animals; while – getting people in and out.” There has been a growing His dream is to have around the Department of Agriculture movement to ‘rewild’ areas of 7,000 acres set aside as a reserve has a significant role in regulating Bear with us Europe, bringing back formerly for the animals, but in the animal health and movements. In the meantime, the centre is native species that had become medium-term, of course, expan- The sanctuary has attracted hoping the public will continue to extinct. The reintroduction of sion plans have been delayed by huge interest since it opened, and support it by buying tickets online beavers in areas of Britain has the pandemic. it was “flying” in the early part at its website at wildireland.org been particularly successful. “My ultimate dream is to make of the year, says Killian, employ- (€10 for adults and €8 for kids). Beavers are referred to as a everything bigger, but a lot of ing 12 full- and part-time work- These can be redeemed any time keystone species – they can alter things and new species, such as ers. There were plans for more, until the end of 2021. the environment in a positive way, golden eagles, have been put on including an education officer Killian sees three different such as by building dams, which hold.” for the anticipated school tours. objectives for the Wild Ireland can prevent flooding. Wild boars While the animals consume Then came the pandemic and the project: rescuing animals, educat- are also a keystone species – their much of his time, Killian isn’t inevitable closure. Now, there’s ing visitors, and inspiring a new foraging is seen as important planning on giving up the law any just Killian and one keeper, and generation of conservationists. He in forestry regeneration – but time soon. And there’s another he says he can’t be certain about believes that the effect of seeing Killian is less optimistic about new life to look forward to, as future employment levels until animals like bears in a TV docu- their return to the wild in Ireland. his wife Katie is expecting a baby the sanctuary gets up and run- mentary can never be the same as “There have been haphazard in June. gazette.ie Law Society Gazette June 2020 NEWS 11 DPC STEPS UP ‘BIG-TECH’ ENFORCEMENT n The Data Protection Com- mission (DPC) has stepped up enforcement levels and sent draft decisions to both Twitter and WhatsApp, writes Mary Hallissey. The Twitter draft decision, under article 60 of the Gen- eral Data Protection Regulation (GDPR), was sent to all other concerned EU supervisory auth- orities. The other data protection regulators now have four weeks to comment on the decision. If no objections emanate from other agencies, the DPC will issue its final decision. The completed inquiry relates to Twitter as a data control- ler based in Ireland, following receipt of a data-breach notifica- tion. The draft decision turns on whether Twitter International has complied with articles 33(1) and Advocate General Saugmandsgaard Øe 33(5) of the GDPR. Given the gargantuan figures CJEU proceedings. The full court for personal data processing. international data transfers under in previous EU GDPR fines may depart from the decision and This inquiry is now at the deci- EU data protection law) on 16 against large tech companies, its logic, but is unlikely to do so. sion-making phase at the DPC. July. The DPC says this eagerly and the consistency mechanism If it follows the reasoning of the The CJEU has said that it anticipated judgment will bring under article 63, Twitter is likely advocate general, then the DPC will deliver its judgment in Case much-needed clarity to aspects to be slapped with a large admin- is likely to become much more C-311/18 (the Schrems case of the law and will represent istrative fine if the DPC decides proactive in the future. concerning the High Court’s a milestone in the law on data against it. DPC deputy commissioner judgment on the regulation of privacy. This draft decision is one of Graham Doyle has confirmed a number of significant devel- that a preliminary draft decision opments in DPC inquiries into has also been sent to WhatsApp YOUNG OFFENDERS tech companies recently. The Ireland Limited for their final ramping up of enforcement lev- submissions. COVID COMPLIANT els follows a December 2019 Any response from Twitter n Researchers at the University ing within the 2km distance’, opinion from Advocate General will be taken into account by the of Limerick have found that a but less so in ‘maintaining social Saugmandsgaard Øe that the DPC before its draft decision majority of young people par- distance’ and ‘not gathering in DPC should be proactive in under article 60 is published. ticipating in Garda Youth Diver- groups’. enforcing the GDPR. The inquiry into WhatsApp sion Projects are complying with Some projects also reported Ireland examines its compli- COVID-19 restrictions. that non-compliance by certain Data transfers ance with articles 12 to 14 of The research also shows that adult family members and com- Exercise of the powers to suspend the GDPR, in terms of transpar- antisocial or offending behaviour munities had a negative influence and prohibit data transfers under ency around what information has decreased during the pan- on some young people’s compli- GDPR is “no longer merely is shared with Facebook. When demic. A small number of young ance. an option left to the supervi- finalised, that draft decision will, people, however, were involved There are 105 Youth Diversion sory authorities’ discretion”, the likewise, be sent to other EU in more serious breaches during Projects in Ireland, which seek to opinion says, adding that proper data protection agencies. lockdown. These tended to be divert those aged between 12 and application of the regulation is a The DPC has also completed associated with alcohol or drug 17 from becoming involved, or requirement of the supervisory the investigation phase of a com- misuse. further involved, in antisocial or authorities. plaint-based inquiry that focuses Surveys were conducted with criminal behaviour, while encour- The opinion of the advocate on Facebook Ireland’s obliga- youth justice workers. Most aging them to improve their general is a preliminary stage in tions to establish a lawful basis reported compliance with ‘keep- behaviour. 12 NEWS June 2020 Law Society Gazette gazette.ie 2,500 SIGN UP FOR FREE COURSES PIC: CIAN REDMOND n The Diploma Centre has wel- In line with the Diploma comed more than 2,500 solicitors Centre’s innovative use of tech- to date onto two new courses – the nology, both courses are designed Certificate in Technology Law, to be completed entirely online. and the Introduction to Arts, They feature recorded and Entertainment and Media Law. streamed presentations, live inter- The courses are being offered active panel sessions, and discus- for free to Law Society members sion forums that allow participants as part of the Diploma Centre’s to engage directly with the pre- COVID-19 support initiatives, senters. and can be accessed until 31 July All sessions can be played back 2020. Each course provides partic- on demand or downloaded as ipants with an insight into two dis- podcasts, providing maximum tinct areas of law. The Certificate ease of access and flexible learning in Technology Law provides an options. Participants are awarded overview of areas such as social certificates of completion once media and the law, e-commerce, online assessments are submitted. data protection, fintech, biomet- A total of 21 free CPD hours rics, cybersecurity and cybercrime. are available for completing both The Introduction to Arts, courses: 14 for the Certificate Entertainment and Media Law in Technology Law and seven offers an insight into broadcast- for the Introduction to Arts, ing, publishing, the evolution Entertainment and Media Law. of media in a digital age, copy- This is an ideal opportunity to right protection for artists, and upskill in these topical areas dur- litigation in the entertainment ing these challenging times. industry. Solicitors can sign up now to The courses run over five Josepha Madigan, Paula Mullooly Solicitors), Dr TJ McIntyre complete the courses at any time weeks and feature expert con- (director of legal affairs at RTÉ), (UCD), and Yvonne Nolan until 31 July 2020. To register, tributors, including Minister Andrea Martin (Media Lawyer (World Rugby). visit www.lawsociety.ie/diplomas. KEANE NEW CHAIR OF NATIONAL GALLERY n The Law Society’s deputy reflection as we emerge from the Members appointed by the director general, Mary Keane, coronavirus pandemic. minister serve terms of five years. has been appointed chair of the “We have all had time to Ex officio members serve terms of National Gallery of Ireland. She reflect on what is core to our varying duration, depending on succeeds Michael Cush SC, who experience as human beings, and the constitution of their organ- served as chair for the past six we understand now, more than isation. The current members years. ever, the value of those things of the board are Mary Keane, Born in Swinford, Co Mayo, that endure and inspire and make Maurice Buckley, Mary Can- Keane has served on the gallery’s us more – whether individually ning, Lynda Carroll, Diana Cop- board of governors and guard- or collectively. perwhite, Michael Cush, John ians since 2014. Educated at “As chair, I’m looking forward Dardis, Dan Flinter, Jacqueline UCD and the King’s Inns, she is to enabling people to renew their Hall, Gary Jermyn, Prof Owen both the Society’s deputy direc- instinctive connection with the Lewis, Abigail O’Brien, John tor general and its director of arts and to engage with us in O’Doherty, Ann Prendergast, policy and public affairs. She is supporting the future of their Una Sealy, Lesley Tully and Bar- also director of Irish Rule of Law national gallery,” she concluded. ney Whelan. International, a registered char- The board comprises 17 mem- The National Gallery is cur- ity that promotes the rule of law am honoured to be entrusted bers, ten of whom are appointed rently closed, but there are many in developing countries. to serve as chair of its board,” by Government, five are ex offi- ways to engage with the national “The National Gallery of Ire- Keane told the Gazette. “The cio holders of office, and two are collection online during this land is a wonderfully dynamic gallery is committed to provid- appointed by the Royal Hiber- time. See www.nationalgallery.ie/ and modern institution, and I ing a focal point for collective nian Academy. national-gallery-ireland-at-home. gazette.ie Law Society Gazette June 2020 NEWS 13 MR JUSTICE PETER KELLY TO SIGN THE RETIRE IN JUNE SOCIETY’S n The President of the High GEDI Court, Mr Justice Peter Kelly, is to retire on Thursday 18 June – CHARTER his last day of service will be on 17 June. Appointed to the High Court in 1996, Mr Justice Kelly became the presiding judge over a newly established Commercial Court in 2004, hearing cases that were com- plex or involved claims in excess of €1 million. highest of standards from himself areas of chancery and commercial As a result, he heard a number and others”. law. of high-profile cases following the On 29 November 2011, Mr Judge Kelly is a member of economic crash, including those Justice Kelly was elected as the the Bars of England and North- involving Anglo Irish Bank, Seán first president of the Association ern Ireland and an ad hoc judge of Quinn, Mick Wallace, and ACC of Judges of Ireland. the European Court of Human Bank. He was educated at O’Connell’s Rights. He is chairman of the At the time of Judge Kelly’s Schools, UCD, and the King’s Commercial Law Centre at UCD appointment as President of the Inns. He was called to the Bar in and an adjunct professor of law at n The Law Society is inviting High Court in 2015, Law Soci- 1973 and spent two years work- Maynooth University. solicitors and practices to sign ety director general Ken Murphy ing in the European Division of He is a former president of the their names to the Society’s Gen- described him as a “fearlessly inde- the Department of Justice. He Medico-Legal Society of Ireland der Equality, Diversity and Inclu- pendent judge with a ferocious began practice at the Bar in 1975 and is a member of the Council of sion Charter. work ethic, a first-class legal mind, and was called to the Inner Bar the Royal College of Surgeons in The charter commits signa- and an utter commitment to the in 1986, practising mainly in the Ireland. tories to treating all individuals, and groups of individuals, fairly and equally regarding their gen- IAA FOUND FAR MORE COURT der, civil status, family status, sexual orientation, religion, age, BUILDINGS THAN EXPECTED race, class, disability or member- n The Irish Architectural Archive areas across Ireland. An individual ship of the Traveller Community. has said it found many more Irish courthouse has not been identified Signatories must also com- courthouses than it expected for fewer than 50 of the known mit to ensuring equal access when it set out to compile a gazet- petty-sessions locations, and the to opportunities for those they teer of the buildings last year. authors hope these might still be employ, ensuring that their poli- The list, published in 2019 in identified over time. cies, procedures and processes Ireland’s Court Houses (edited by Apart from the six counties of promote: Paul Burns, Ciaran O’Connor Northern Ireland, in 1923 petty- • Gender equality, and Colum O’Riordan) contained sessions courts became District • Diversity and inclusion, 763 entries. Courts, and as a result there was • A commitment to carry out In a post on the body’s website a substantial continuity of court- work without bias, in mid May, Colum O’Riordan house use into the mid-20th cen- • To do so in a respectful and and Eve McAulay wrote that an for the courthouse network across tury. non-discriminatory manner, initial analysis of previous lists the country,” they write. But many courthouses then fell and had suggested a number between Above the petty sessions was a out of use as the number of Dis- • To uphold these principles in 250 and 300. hierarchical court structure, ris- trict Court locations was steadily the solicitors’ profession. “The most common court type ing through quarter sessions and reduced. in Ireland by the end of the 18th county assizes to the supreme “From a high of over 600 build- For more information or to century was the petty sessions, courts, each of which required ings in active regular use as court- commit your workplace to the and it was the provision of accom- accommodation. houses in the 1880s, there are now charter, visit www.lawsociety.ie/ modation for sittings of the petty In the mid-19th century, there fewer than 120 across the island,” GEDI or email GEDICharter@ sessions that laid the foundations were over 560 petty-sessions the architects write. lawsociety.ie. 14 NEWS June 2020 Law Society Gazette gazette.ie
ENDANGERED LAWYERS MEDIA CAMPAIGN DIEUDONNÉ BASHIRAHISHIZE, BURUNDI REFLECTS IMPACT OF PANDEMIC n Eagle eyes will have noticed Social media has taken on a the Law Society’s new advertis- whole new level of importance ing campaign online and in the during the pandemic. As a result, national and local media, which the campaign includes a new launched at the end of May. In col- video-on-demand element, which laboration with the Public Rela- will target a wide audience. Digi- tions Committee, this year’s cam- tal advertisements will also fea- paign has been carefully designed ture on a range of websites – in Dieudonné Bashirahishize (quali- “By early 2015, it was no lon- to sensitively reflect the reality of previous years, this element of fied 1978) has lived in Belgium ger safe for me in Burundi,” says Irish life and business as we nego- the campaign has been extremely since 2018 with his wife and Bashirahishize. After the highly tiate the impact of COVID-19. successful in reaching the target three children. He was forced to controversial re-election of The campaign’s key messages audiences. flee his native Burundi because President Nkurunziza that year, a let clients know that their solici- Launching the campaign, the of his work in defence of human widespread campaign of attacks tor is open for business, provides first print advertisement appeared rights and the rule of law. on political opponents started. an essential service, and is ‘in their in The Irish Times on Monday Burundi is a poor, small, Many crimes against human- corner’. Radio advertisements will 25 May, targeting a key demo- densely populated country of ity were allegedly committed be broadcast on RTÉ Radio 1, graphic. It will also appear in a nearly 12 million people, just against civilians. 2FM, Lyric FM and Today FM, as selection of local papers, nation- south of Rwanda and between “The judiciary body, which is well as a selection of local stations wide, over the course of the Congo to the west and Tanza- not independent, was used as across the country. seven-week-long campaign. nia to the east. It has a history an instrument of repression,” of instability involving ethnic he says. In 2017, Bashirahishize cleansing, civil war, and genocide and three fellow lawyers were There are times during the 1970s and again in suspended from the Burundi in life when you should talk to the ’90s. There was widespread Bar Association at the request your solicitor. political strife in 2015, when the of the Ministry of Justice, then The impact of president ran for a third term in disbarred. Accused of “partici- Covid-19 could office, a coup attempt failed, and pating in a revolutionary move- be one of them. the parliamentary and presiden- ment”, the real reason behind Covid-19 is affecting us all tial elections had no credibility. the ministry‘s request was wide- at home, at work and in business. If you need advice Around 215,000 people fled the ly considered to be the lawyers’ and someone in your corner, country. Judges were forced to participation in writing and pre- talk to your solicitor. leave or submit to political pres- senting a report about human sure, and the work of an indepen- rights violations in Burundi. dent press was made impossible. That report was discussed in The World Happiness Report 2016 by the UN Committee lawsociety.ie 2018 ranked Burundi among the Against Torture in Geneva, in the world’s least happy nations, in presence of the Minister of Jus- 145th place. tice and three in-volved lawyers, Bashirahishize is a former vice- including Bashirahishize. president of the East Africa Law In exile, he remains committed Society and, as such, worked to human rights and has helped to promote human rights and create a coalition of lawyers that the principles of democracy in defends victims in Burundi by the region. He defended many submitting cases of human-rights political cases and victims of violations to regional and inter- human rights abuses. Receiving national bodies. repeated death threats, he went into hiding and eventually fled. Alma Clissmann is a member of the His driver was murdered. Human Rights Committee. gazette.ie Law Society Gazette June 2020 NEWS 15 NOTARIES’ FELLOWSHIP CONFERRED ON DR EAMONN G HALL n Dr Eamonn G Hall, solicitor in Ireland over several decades and notary public, director of and, in particular, his work in education of the Faculty of Nota- the development of a postgradu- ries Public in Ireland and director ate programme for practising of the Institute of Notarial Stud- notaries public and trainee nota- ies, has been awarded the highest ries in the field of education honour the faculty can bestow. and training and ancillary good At a recent ‘virtual’ ceremony, works, the governing council of the dean of the faculty, Mary the Faculty has resolved that Dr Casey, stated that the admis- Eamonn G Hall, Notary Public, sion of Dr Hall to the fellowship be admitted a Fellow of the Fac- of the faculty, his presentation ulty honoris causa et de facto.” with the faculty’s medallion, and The conferring of this hon- the testimonial acknowledged our on Dr Hall has been warmly his immense contribution to its approved by Chief Justice Frank endeavours in the education and Clarke, who wished to have training of notaries and candidate placed on record “the significant notaries. contribution of Dr Hall to the The dean said: “Due to the literature of the law of Ireland times we are living in, and the through his erudite and intellec- restrictions that have been tual writings over many years”. imposed by the Government Justice Frank Clarke, who has The testimonial states: “Be it The Gazette extends its sin- with regard to travel and social recognised the contribution of Dr known by this instrument that, cere congratulations to Dr distancing, the faculty was unable Hall to the literature of the law of in recognition of his invaluable Hall, who was chairman of the to have, as planned, a formal cer- Ireland, which is referenced in the contribution to the objects of Gazette’s Editorial Board for emony in the presence of Chief testimonial.” the Faculty of Notaries Public many years. CRIME COMPENSATION NOTICE: SBA AGM n Notice is hereby given that matters appropriate to a general BODY CHAIR NAMED the 156th AGM of the Solicitors’ meeting. n Justice Minister Charlie Fla- Benevolent Association will be Any member intending to join nagan has appointed solicitor held remotely by video-confer- the meeting should send their William Aylmer as chair of the ence on Monday 6 July 2020 at email address to the secretary, Criminal Injuries Compensation 12pm. Geraldine Pearse, at contact@ Tribunal (CICT) until the end of It will consider the annual solicitorsbenevolentassociation. this year. report and accounts for the year com. An email will be sent to The previous chair, Helen ending 30 November 2019, elect the individual, complete with the Boyle, was appointed as a judge of directors, and deal with other relevant link, to join the meeting. the Circuit Court earlier this year. The tribunal is made up of seven qualified solicitors and bar- MH&C BECOMES LLP risters, and is limited to a chair n Mason Hayes & Curran moved applications for authorisation as and six ordinary members, who to limited liability partnership an LLP last November, follow- act on a part-time basis. There William Aylmer – CICT chair (LLP) status on 25 May. It is ing the commencement of chap- are currently five ordinary mem- the largest law firm in Ireland ter 3, part 8 of the Legal Services bers of the tribunal – solicitors body will be filled as soon as is to become an LLP under LSRA Regulation Act 2015. Martin Lawlor and Niamh Tuite, practical. regulations, that became opera- Law Society director general and barristers Mema Byrne, Cian Tribunal members decide tional in October. The Dublin 4 Ken Murphy said last year that Kelly and Grace Mulherin. The whether an application is admis- firm has 38 partners and reported he hoped “all partners and firms Department of Justice says the sible and whether compensation revenue of €85 million in 2019. would avail of this significant one remaining vacancy on the is payable. The LSRA began accepting advantage, long fought for”. 16 COMMENT Letters June 2020 Law Society Gazette gazette.ie REMOTE HEARINGS: BEWARE INTRUDERS From: Hilary Lennox BL, 5 St Andrew’s Hill Chambers, London
n Britain, from Monday 30 March 2020 during COVID- 19, all courts have been cat- Iegorised as ‘open’ (or prioritised), ‘staffed’, or ‘suspended’. Staffed courts are still attended by staff and judges, but not open to the public. Judges at staffed courts can only conduct remote hear- ings. Suspended courts have no staff or judges. Members of the legal profession are key workers. HM’s Courts and Tribunals Service (HMCTS) rolled out their new software in April 2020. The software they are using at present is the BT Meet Me sys- tem for telephone conferencing, and Skype for Business and Lifesize in the High Court. nally listed for a Wednesday in COVID-19. There was just one of email. I use my iPad in court My virtual experience has court. The solicitors and counsel hiccup, when my French bulldog to access the trial bundle, taking involved a High Court hear- came together and arranged the Willow entered the screen, lead- notes on my laptop. Our clerks ing using Skype for Business. This appointment for that Friday. This ing the judge to comment: “Oh! or instructing solicitors scan was an emergency hearing, and lasted all day and was very suc- We have an intruder.” in the documents. I generally it worked very well. There were cessful in terms of connection. All I also attended for an issues email my position statement or five different parties/screens used. parties used their laptops, and all resolution hearing by way of tele- skeleton argument to the judge All the parties made the neces- parties were visible on screen. phone conference call. The par- directly or to the judge’s clerk sary submissions. The hearing The software we used was ties communicated by email and prior to the hearing. The process was recorded by the judge. The Lifesize, which produced a virtual phone in the morning, and the is the same to approve the court judge’s clerk accompanied the courtroom. judge’s clerk checked in by email orders after the hearing. judge in the High Court. Rather My client and solicitor were to see how discussions were com- It is remarkable how the legal amusingly, when the clerk issued based on the west coast of Ire- ing along. The clerk commenced profession in Britain has come the ‘all rise’ instruction at the land. This was a very successful the hearing when we were all together so quickly and got up to end of the hearing, all the parties outcome, since Ireland was on deemed ready, with five parties speed with the software. It dem- amusingly stood up on screen – lockdown before Britain, with in total taking part. The software onstrates that relatively straight- the new guidance states that this no prospect of my client attend- we used was BT conferencing, forward case-management hear- is not a requirement for virtual ing court in London. The judge which worked very well. ings, adjournments, or ‘progress hearings. recorded it from his end. This Many barristers in Britain hearings’ can take place virtually My second hearing was a pri- case didn’t settle; however, the have already gone paperless to ensure the justice system does vate financial dispute resolution case may now move to final hear- and use e-bundles in court. Our not grind to a halt. Some final appointment. This was origi- ing without any long delay due to clerks send us our briefs by way hearings are taking place.
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Make sure you keep up to date: subscribe on www.lawsociety.ie/enewsletters or email [email protected]. gazette.ie Law Society Gazette June 2020 Letters COMMENT 17 COMING SOON INVEST NOW IN COMING SOON COURTS SERVICE IT The Law of The Law of Evidence in INFRASTRUCTURE FOR EvidenceIreland in ByIreland Caroline Fennell IrelandBy Caroline Fennell BREXIT BENEFITS By Caroline Fennell This new edition of The Law of From: Geraldine Keehan, partner, Caldwell & Committee, have been working collabora- This new edition of The Law of ThisEvidence new editionin Ireland of Thecovers Law key of Robinson, The Capel Building, Dublin 7 tively since lockdown on how remote hear- topicsEvidence including: in Ireland covers key Evidencetopics including: in Ireland covers key ings should operate in the family law courts. topics• Judicial including: consideration of fairness OVID-19 presents an unprecedented In my view, there are a number of ways • inJudicial the pre-trial consideration process of in fairness light of a • Judicialin the pre-trial consideration process of in fairness light of a challenge to ensuring access to jus- in which remote hearings could operate in inchanging the pre-trial societal process context in lightand deliveryof a onchanging the accused’s societal rightcontext to fair and trial delivery tice in family law cases. The Courts practice in the family-law context. The fol- changingon the accused’s societal rightcontext to fair and trial delivery Service is currently attempting to increase its lowing would assist greatly: • onThe the developing accused’s concept right to of fair trial C • The developing concept of capacity to hear cases remotely. According to • Definition of what is urgent and essential, • Thetransnational developing fairness concept in facingof thetransnational challenge fairnessof co-operation in facing in Chief Justice Frank Clarke, “the pilot use of • Court-approved video-conferencing soft- transnational fairness in facing combatingthe challenge crime of co-operationand instruments in technology to allow for remote hearings is ware, thecombating challenge crime of co-operationand instruments in combatingsuch as the crime European and instruments Arrest Warrant going to be concentrated in the High Court, • Protocols for remote hearings in family such as the European Arrest Warrant • suchChanging as the approaches European Arrestof Irish Warrant Court of Appeal, and the Supreme Court”. courts, • Changing approaches of Irish • Changingcourts to approachestraditional rules of Irish including The trial of the platform designed to • Protocols for conducting safe, live court courts to traditional rules including courtsthose relating to traditional to expert rules witness including facilitate remote hearings was successfully hearings, testimony,those relating evidence to expert of bad witness character thosetestimony, relating evidence to expert of bad witness character completed, with remote hearings being • Protocols concerning e-bundles, as they and prior misconduct. testimony,and prior misconduct. evidence of bad character rolled out during the third week of April are an essential part of remote hearings, and prior misconduct. 2020. For some time now, the chief justice • Regular reviews and updates regarding Price: €185 ISBNPrice:: 9781526504890 €185 has been calling for significant funding for the experience of the judiciary, the court ISBNPrice:: 9781526504890 €185 IT upgrades essential to the courts’ mod- services, and all participating parties, and ISBN: 9781526504890 ernisation. • Planning for judicial resources to deal He has stressed the importance of such with the inevitable backlog. funding in Ireland’s bid to position itself as a OUR PODCAST OUR PODCAST centre of legal excellence, post-Brexit. Such In the present unprecedented circum- OUR PODCAST significant funding has not been forthcom- stances, the fundamental principles of sub- ing. With the unique challenges posed by stantive law and procedural fairness have COVID-19, now is the ideal time to invest in not changed. The above would, in my the Courts Service IT infrastructure to enable view, assist in ensuring those principles are remote hearings to take place in all courts. adhered to in remote hearings. The judiciary, together with the Courts Service, the Law Society, the Bar Council, Geraldine Keehan is a member of the Law Soci- and the Society’s Family and Child Law ety’s Family and Child Law Committee.
Listen to Bloomsbury Professional Listen to Bloomsbury Professional Ireland’sListen to Podcast Bloomsbury for interviews Professional with leadingIreland’s legal Podcast professionals for interviews in Ireland. with leadingIreland’s legal Podcast professionals for interviews in Ireland. with leadingOur current legal professionals episodes explore in Ireland. the Our current episodes explore the Ourlegal current developments episodes around explore the the LISTEN UP! legal COVID-19developments pandemic. around the legal COVID-19developments pandemic. around the Find us COVID-19on Apple Podcasts,pandemic. Spotify, Find us on Apple Podcasts, Spotify, FindStitcher, us on and Apple many Podcasts, other podcast Spotify, Tune in to Gazette apps,Stitcher, or at and obiterdicta.podbean.com many other podcast apps,Stitcher, or at and obiterdicta.podbean.com many other podcast audio articles at apps, or at obiterdicta.podbean.com bloomsburyprofessional.com/ie bloomsburyprofessional.com/ie Gazette.ie bloomsburyprofessional.com/ie 18 COVER STORY June 2020 Law Society Gazette gazette.ie PIC: SHUTTERSTOCK gazette.ie Law Society Gazette June 2020 COVER STORY 19 AFTER THE GOLD RUSH
Crypto-assets will remain a highly volatile investment and means of exchange until regulation becomes a legal certainty. When that happens, it will reduce the use of crypto-assets in fraud and will protect investors. Jennifer O’Sullivan calls the sheriff
JENNIFER O’SULLIVAN IS A SENIOR ASSOCIATE (LEGAL) AT DEPFA BANK PLC
The author thanks Nicholas Pheifer (head of legal, Depfa Bank PLC) and Pearse Ryan (partner, Arthur Cox) for reviewing the article 20 COVER STORY June 2020 Law Society Gazette gazette.ie
AT A GLANCE n The EU has recognised the policy interests in promoting crypto-assets using blockchain technologies n Crypto-assets give increased access to financial markets for consumers n Global regulators agree on the need to protect investors, but not stifle innovation n There is a lack of harmony, however, among EU member states about how crypto-assets should be regulated, both inside and outside the EU
lmost two years after the European Commission adopted its Fintech Action Plan, at the end of 2019 it launched a public consultation on a future EU framework for markets in crypto-assets. The EU has recognised the inherent policy interests in promoting crypto-assets as one of the major applications of blockchain technologies. The universal benefits of crypto-assets include ease and integration of payments for users, as well as increased access to financial markets for consumers. It is, therefore, agreed by regulators globally that the general impetus of any regulatory framework should be a fair and level playing field for users and operators, balancing the need to protect investors and not stifle innovation. That being said, the commission recognises gazette.ie Law Society Gazette June 2020 COVER STORY 21 PIC: SHUTTERSTOCK
the lack of harmonisation among EU The most well-known crypto-asset, Examples of stablecoin include the JP member states in crypto-asset regulation – ‘cryptocurrencies’, are used as a medium Morgan Coin, Barclays, NASDAQ and and the large portion of crypto-assets that of exchange on exchanges and trading UBS’ Utility Settlement Coin (USC), fall outside EU regulation. platforms, and were created as an and Facebook’s Libra. The stablecoin is alternative to fiat money. They include of interest, given that it seeks to bring Shadow play names like Ethereum, Ripple, Litecoin and certainty to crypto-asset markets (by There is no single global definition of Bitcoin. pegging ‘stable’ fiat currencies), which, ‘crypto-asset’ – labels are as diverse as On the other hand, crypto ‘tokens’ until now, have experienced instability ‘digital’, ‘virtual’, ‘electronic’, ‘cyber’, generally have a narrower utilisation and hyperinflation. ‘payment’, ‘utility’, and ‘investment’, with purpose (for example, payment, strict use, In practice, stablecoin arrangements the asset being described as a ‘currency’, or investment). Most recently, all eyes are use fiat money, commodities or other ‘coin’ or ‘token’. Crypto-assets are broadly on ‘stablecoin’, a type of cryptocurrency cryptocurrencies as collateral to maintain defined as private digital assets that use that is normally used to pay for purchases of stability (as such, an ‘asset-backed’ coin). cryptography and are designed to work as other crypto-assets on exchanges or trading Nevertheless, as stablecoins are tied to one a medium of exchange. platforms that do not accept fiat money. or more asset classes, there is an element of 22 COVER STORY June 2020 Law Society Gazette gazette.ie
FOCAL POINT TUMBLING DICE The European Commission consultation disclosures of inside information, and There is also no definition of an ‘e-money alludes to the lack of a common definition market manipulation), token’, but the applicable meaning would of crypto-asset, and characterises a ‘crypto- • The Short Selling Regulation (selling naturally be supplanted by the EMD2. asset’ as a “digital asset that may depend securities), ‘E-money’ under EMD2 is considered the on cryptography and exists on a distributed • The Financial Collateral Directive (for the digital alternative to cash, which enables ledger”. reduction of credit exposure), and users to store funds on a device (card or The commission firstly notes that crypto- • The Alternative Investment Fund Managers phone) or through the internet and to make assets may characterise and qualify as a Directive and the Undertakings for payment transactions. This would require the ‘financial instrument’ under the Markets in Collective Investment in Transferable issuer having an e-money licence. Financial Instruments Directive II (MiFID II) or Securities (for those crypto-assets that do E-money holders also have the right to as ‘e-money’ under the E-Money Directive II not qualify as financial instruments, but fall redeem the monetary value of their e-money (EMD2). For the purpose of the consultation, under ‘other assets’). at any time and at par value. This represents these are referred to as ‘security tokens’ and a claim on the e-money issuer. ‘e-money tokens’, respectively. There is no definition of ‘security token’ in The European Banking Authority has Based on how market participants EU regulation. Crypto-assets may qualify advised the commission that there has only respond, the characterisation of crypto-asset as ‘transferable securities’ or other types of been a handful of cases where payment responses will colour the requirement for ‘financial instruments’ under MiFID II. tokens qualified as e-money. Stablecoins may the commission to assess whether other ‘Transferable securities’ are those classes of also qualify as ‘e-money’ under EMD2 and regulatory changes are necessitated among securities that are negotiable on the capital may, therefore, also fall under the Payment other relevant EU financial regulations. markets, with the exception of payment Services Directive 2 (PSD2). Changes may be required to (among instruments. This definition usually covers It is, however, noted in the commission’s others): bonds, shares, depository receipts, and consultation that crypto-assets are not • The Prospectus Regulation (for issuance of securities giving the right to acquire or sell banknotes, coins or scriptural money and, crypto-assets), securities (like warrants). therefore, do not fall within the definition of • The Central Depositories Regulation (for MiFID II also includes concepts such as ‘funds’ under PSD2 unless they are defined custody services), ‘investment firms’, ‘investment services and as ‘e-money’. • The European Market Infrastructure activities’ and ‘trading venues’, which may all Where stablecoin uses traditional payment Regulation and the Settlement Finality become applicable to security tokens that fall services channels, using cash deposits and Directive (both for post-trade activities under MiFID II. withdrawals from current accounts, this relating to security tokens), Stablecoins may also qualify as a ‘financial would be considered a payment transaction • The Deposit Guarantee Scheme Directive instrument’ under MiFID II. Consequently, under the PSD2. As a consequence, if a (if crypto-assets are characterised as firms providing services concerning security firm proposes a payment service related ‘deposits’), tokens should ensure they have the relevant to a crypto-asset (that does not qualify as • The Market Abuse Regulation (market MiFID authorisations, and that they follow the e-money), it would fall outside the scope of abuse around insider dealing, unlawful relevant rules and requirements. PSD2.
REGULATORY RISK IN CRYPTO-ASSETS IS LARGE, GIVEN THEIR BORDERLESS NATURE, ANONYMITY, AND THEIR PAYMENT FLOWS THROUGH DECENTRALISED PLATFORMS, MAKING THEM VULNERABLE TO ABUSE AND, THEREBY, A BLACK HOLE FOR CONSUMER PROTECTION gazette.ie Law Society Gazette June 2020 COVER STORY 23 PIC: SHUTTERSTOCK
‘Marty! We have to do something about the Bitcoin!’
ONE OF THE BASIC MISSIONS OF FINANCE IS TO SET UP ARRANGEMENTS WHERE INDIVIDUALS CAN TAKE ON RISK WITHOUT THEMSELVES BEING DESTROYED BY RISK
relativity in the value of the stablecoin and, assets are commonly used for money- trace ransom payments to a wallet and have thus, they are not absolutely ‘stable’. laundering and terrorist financing. Other it frozen – although it is not clear until the risks include a lack of investor protection, substantial trial of the action as to how this Bad penny operational risk around the use of crypto- will work in practice. The share of crypto-assets held globally asset exchanges and trading platforms, Closer to home, in February 2020, an compared with the aggregate level of as well as tax evasion. There are several Irish drug dealer reportedly lost €54 million global payment transactions is relatively examples where crypto-assets have been worth of Bitcoin raised from the sale of small (estimated market capitalisation at used for ransom (such as the WannaCry cannabis. That case involved the loss of €7 billion). That being said, the regulatory ransomware attack) or where crypto- private keys to digital wallets, which were risk in crypto-assets is large, given their asset exchanges have unexpectedly closed written on a sheet of paper and ended up in a borderless nature, anonymity and their and funds have been liquidated by their landfill in Galway. payment flows through decentralised operators, or where privacy keys to digital platforms, making them vulnerable to abuse wallets have been lost (for example, Shake your money-maker and, thereby, a black hole for consumer Quadriga Exchange). Currently, the only EU regulation protection. It is notable that recent case law around where providers of crypto-asset services Given their anonymous nature, crypto- freezing orders shows an ability to track or are regulated is in the EU anti-money- 24 COVER STORY June 2020 Law Society Gazette gazette.ie
FIRMS PROVIDING SERVICES CONCERNING SECURITY TOKENS SHOULD ENSURE THEY HAVE THE RELEVANT MiFID AUTHORISATIONS, AND THAT THEY FOLLOW THE RELEVANT RULES AND REQUIREMENTS
laundering (AML) and countering the traded, or transferred, and can be used for regulation when it comes to crypto-asset financing of terrorism (CFT) space. payment or investment purposes. VAs do service providers. Crypto-asset service AMLD5 describes a virtual currency (VC) not include digital representations of fiat providers include issuers or sponsors, trading as “a digital representation of value that is currencies, securities and other financial platforms and exchanges (both fiat-to-fiat not issued or guaranteed by a central bank assets that are already covered elsewhere in and fiat-to-crypto), and wallet providers. or a public authority, is not necessarily the FATF Recommendations.” AMLD5 describes virtual currency service attached to a legally established currency, It is clear that a broad definition is providers (VCSPs) as entities “engaged in and does not possess a legal status of required to facilitate the rapid shifts in exchange services between virtual currencies currency or money, but is accepted by technology and to cover a broad spectrum and fiat currencies”, which implicitly natural or legal persons as a means of of virtual assets. There is no glaring disregards crypto-to-crypto exchanges. exchange, and which can be transferred, divergence in practice between these stored and traded electronically”. definitions to somehow cause regulatory he FATF Recommendations include In contrast, the FATF Recommendations arbitrage as between the EU and other an expansive definition for virtual define a virtual asset (VA) as “a digital countries globally. asset service providers (VASPs) as “a representation of value that can be digitally There is, however, a divergence in EU naturalT or legal person who, as a business, conducts one or more of the following activities or operations for or on behalf of another natural or legal person: FOCAL POINT 1) Exchange between VAs and fiat currencies, WHAT DO YOU DO FOR MONEY? 2) Exchange between one or more forms of • AMLD4 – the EU Anti-Money-Laundering send and receive crypto-assets and VA, Directive No 4. monitor their balances. 3) Transfer of VAs, • AMLD5 – the EU Anti-Money-Laundering • Distributed ledger technology (DLT) – 4) Safekeeping and/or administration of VAs Directive No 5. saving information through a distributed or instruments enabling control over VAs, • Blockchain – a form of distributed ledger ledger; that is, a repeated digital copy of and in which details of transactions are held data available at multiple locations. DLT 5) Participation in and provision of financial in the ledger in the form of blocks of is built upon public-key cryptography – a services related to an issuer’s offer and/or information. cryptographic system that uses pairs sale of a VA.” • Cryptography – the conversion of data of keys: public keys, which are publicly into private code using encryption known and essential for identification; This definition recognises that crypto- algorithms, typically for transmission over and private keys, which are kept secret to-fiat transactions, as well as crypto-to- a public network. and are used for authentication and crypto transactions, present AML and • Custodian wallet provider – a firm that encryption. CFT risks. Previously, AMLD4 defined a offers storage services to users of crypto- • FATF Recommendations – the Financial ‘custodian wallet provider’ (CWP) as “an assets. Action Task Force is the global regulatory entity that provides services to safeguard • Digital wallets – wallets used to store body tasked with providing guidance private cryptographic keys on behalf of its public and private keys and to interact around AML/CFT regulation through its customers, to hold, store and transfer VCs”. with DLT (see below) to allow users to recommendations. This definition appears to match limb 4 of the VASPs definition, with the broad gazette.ie Law Society Gazette June 2020 COVER STORY 25 PIC: SHUTTERSTOCK LOOK IT UP LEGISLATION: n Alternative Investment Fund Managers Directive (AIFMD) [2011/61/EU] n Anti-Money-Laundering Directive 4 (AMLD4) n Anti-Money-Laundering Directive 5 (AMLD5) n Central Depositories Regulation (custody services) n Deposit Guarantee Scheme Directive (whether crypto-assets are characterised as ‘deposits’) n European Market Infrastructure Regulation (post-trade activities relating to security tokens) n Financial Collateral Directive (reduction of credit exposure) n Market Abuse Regulation [596/2014] definition of VCSPs covering the other assets will result in a reduction of the use (market abuse around insider applicable activities. Under AMLD5 (and as of this novel and fragile asset class for fraud dealing, unlawful disclosures of inside a continuance of the FATF Recommendations and, above all else, will protect investors who information, and market manipulation) in June 2018), both CWPs and VCSPs are vulnerable to its volatility and security n Payment Service Directive 2 (PSD2) are considered ‘obliged entities’ under the breaches. n Prospectus Regulation (issuance of same AML obligations as other financial crypto-assets) institutions, including registering with local he European Commission has n Settlement Finality Directive (post- authorities, reporting suspicious transactions, presented a thorough choice to the trade activities relating to security and recording information around crypto market through its consultation. It is tokens) users, which may be inspected by local clearT that the commission seeks to make a n Short Selling Regulation (selling authorities and must be held for five years. robust, clear, comprehensive EU regulatory securities) framework in order to instil a sense of n Undertakings for Collective No expectations legitimacy to the activities of crypto-asset Investment in Transferable Securities One of the basic missions of finance is to set service providers. (UCITS) [2009/65/EC] (crypto-assets up arrangements where individuals can take Once the consultation closes, it is that do not qualify as financial on risk without themselves being destroyed anticipated that, in line with the FATF instruments, but fall under ‘other by risk. Crypto-assets should become an Recommendations, full-scale regulation of assets’) acceptable means of payment globally rather crypto-asset service providers, as well as a than teetering on the edge between legality certain taxonomy around labelling crypto- LITERATURE: and illegality, and to make their inherent risks assets to ensure that the majority of activity is n Consultation Document on an EU more palatable to a broader audience. regulated in the EU, will ensue. Framework for Markets in Crypto- Until regulation becomes a legal certainty, After that, who knows? We may all be assets crypto-assets will remain a highly volatile wondering what we ever did without our n FATF Recommendations investment and means of exchange. A clear, virtual assets, once regulatory uncertainty is n Fintech Action Plan (2019) balanced response to the regulation of crypto- abolished.
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Library ad Gazette Jan_Feb 2017.indd 1 25/01/2017 15:09 26 PROFILE June 2020 Law Society Gazette gazette.ie KERRY ALL-STAR Taking up a top commercial position was scary but exciting, says Ruth McCarthy about her role with the global financial services company, Fexco. The solicitor tells Mary Hallissey about her transition from ‘coach’ to ‘star player’
MARY HALLISSEY IS A JOURNALIST WITH THE LAW SOCIETY GAZETTE
raining with Arthur Cox, Ruth qualified as a solicitor in 2010 and worked for a year in corporate law – before the family business called her home when the CEO position in Fexco Corporate Payments arose. “It was a huge transition moving home. It was quite a wrench to leave the very interesting work I was doing with Arthur Cox in the financial regulation team,” she says. “But, at the same time, I was interested in moving home – and the fact that it was a family business made it even more attractive. I always saw myself training as a lawyer, but I didn’t necessarily see myself working in a commercial role. That was a big change. “When you go from being a lawyer to working in a commercial role, you are no longer giving people the tools and information to make decisions – you are making the decisions yourself. That can be very exciting and very scary – that transition from being an advisor to being an actor. “I had always been interested in market regulation and compliance, so the opportunity to work in that area more – and in a commercial setting – was too good to pass up.”
Turning Japanese Before moving back to Kerry, Ruth spent a year in Japan, worked in funds administration, did a stage with the European Commission in Brussels, and completed a Master’s at the London School of Economics, all before qualifying as a solicitor. She compares the culture and business approach in Japan with that of Germany. Decisions are never made off the cuff, and there’s a significant amount of careful planning and collective decision-making before any move is executed. Fexco does a lot of business in Japan, and Ruth notes the same pattern in a lot of preliminary work, but matters proceed quickly once a project gets under way. “They are a nation of planners,” she remarks. gazette.ie Law Society Gazette June 2020 PROFILE 27 ALL PICS: KONRAD PAPROCKI PHOTOGRAPHY 28 PROFILE June 2020 Law Society Gazette gazette.ie
GOOD LAWYERS ARE VERY PRAGMATIC AND VERY COMMERCIAL IN THEIR APPROACH. ALL OF THAT WORKS PERFECTLY WHEN YOU GO INTO A BUSINESS ROLE. IT’S A CHANGE IN MINDSET, BUT WE ARE WELL-POSITIONED TO MAKE IT
Ruth now heads up Fexco Corporate The company has formal governance of the abundance of local talent in the area. Payments, which is a licensed payments structures. A small Kerry-based The company has been blessed with high- institution regulated by the Central Bank, management team drives the business, with calibre people who desire to work in Kerry, with several thousand clients. She delivers Ruth reporting to the head of the payments she says. the corporate payments business out to the and foreign-exchange division who, in “The negative of being from the market in Ireland and Britain. Her role turn, reports to the chief executive Denis countryside is that you may feel that the covers the financials, customer service, and McCarthy – Ruth’s brother. employment opportunities in your area are business-development aspects. limited. The positive, from an employer’s “I think my legal training has prepared er father Denis retains the perspective, is that you have such a wealth me very well for this role. As a solicitor, chairmanship role. Another of talent available and people who are really you learn to work under time pressure and brother, John, operates a local tax committed to the area.” to deliver to a high standard. The same complianceH start-up, while one sister is a Fexco has 2,300 staff located all over the principles apply in business,” she says. teacher, and another works for a start-up world, including Ireland, the Middle East, hub that serves the tech community in Asia, North America, Latin America and All over the world Dublin. Australia. Approximately 1,000 staff are The Fexco Group serves the global market, Finding challenging, professional work based in Kerry. Killorglin has three Fexco with staff on the ground in 16 countries, with opportunities for advancement is offices, and the business is now expanding and provides services to most countries in always trickier in rural locations, Ruth with a purpose-built facility on the the world. agrees, but Fexco has been the beneficiary Killarney Road. The town has the highest net in-work figures for any urban centre in Ireland as a proportion of employable people SLICE OF LIFE in the population. Fexco is just one of several big employers in the town, with n Biggest influence on your life? I watched The Innocence Files My parents. The biggest event in my documentary series on Netflix recently others including medical and pharma life was the financial crash: it taught and I will never be able to look at CSI the companies Promed, Temmler Ireland, and me that nothing in life or in business is same way again. Astellas Ireland. Just 40km down the road, guaranteed. n Favourite tipple? Cahersiveen is the base for another Fexco office. n What are you reading at present? Pint of Guinness You Look Like a Thing and I Love You, by n Cats or dogs – do you have either, and As Ruth says: “If you back the region, the Janelle Shane. It’s a very funny book about what are their names? region will deliver.” artificial intelligence, or the lack thereof. Two retired greyhounds called ‘Socks’ and n Favourite book? ‘Drizzle’. Technologic David Copperfield. I listen to it on a loop on n Plastic card or digital wallet? The trend towards remote working and Audible. Both, and I always carry cash, just in case. the growth in services means that ‘working clever’ has allowed many staff to base n Favourite podcast? n Country and Western, or House? Honestly, we mostly just watch YouTube I think Avicii might have eliminated the themselves closer to home, and away from videos about cars in our house. distinction between Country and Western large urban locations. This is probably truer with the COVID-19 pandemic. n Currently watching on Netflix or Amazon and House? In any event, my favourite Prime? performer is Paul Simon. Fexco has many employees working in foreign locations, with several highly gazette.ie Law Society Gazette June 2020 PROFILE 29
MY LEGAL TRAINING HAS PREPARED ME FOR THIS ROLE VERY WELL. AS A SOLICITOR YOU LEARN TO WORK UNDER TIME PRESSURE AND TO DELIVER TO A HIGH STANDARD. THE SAME PRINCIPLES APPLY IN BUSINESS skilled developers working full-time for the the services we are delivering are of a global tricky problem, and I don’t think anyone has company. standard,” she says. a great solution that doesn’t cost a lot “You can never get enough IT skills – I Just over 30% of financial services jobs of money.” think everybody in business would say that. are now located in rural locations around It’s a huge trend, and people with such skills Ireland. “Dublin was predominant for a ccessibility is not only a are always in demand,” Ruth says. period, but things are really balancing out practical concern, it’s a concern “It’s no longer the case that you can divide now,” Ruth comments. in the minds of our partners. If people into technical and non-technical “you Awant to sell your services and to build people. When you look at your staff, Heavy connection relationships, if you’re viewed as being in a everybody needs to have a certain level of The issue of rural broadband, though, is a remote location or a very isolated place, that competence in technology to fulfil their real challenge. Large businesses like Fexco makes the sell a little bit harder. role,” she says. have sorted out the problem, with fibre “Having good connectivity doesn’t just long since laid to the door. “We’ve already help us do business, it helps people have uth’s main message is that it’s possible got the fibre laid and are talking about the confidence in us.” to deliver very complex, high-quality next generation of telephony, rather than On the benefits of rural living, Ruth is services from the regions: “There are worrying about our current connection,” drawn to the quality of life in her native manyR regional businesses like ours, including she said. Kerry, which, she says, makes a huge Pramerica in Letterkenny, delivering But delivering fibre to every single rural difference in terms of lifestyle: “You can complex, highly technical services to the home is extremely challenging. Bringing it get so much more done if you’re not under market. We are based out in the regions, but to towns is a lot more feasible. “It’s a very pressure. You can get more involved in your does your client have a claim eligible for asr hip adr? visit hipadr.ie
If you wI sh to discuss settlement of any eligible claim, please contact McCann FitzGerald (DFH/RJB) on 01 829 0000 or email [email protected].
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l Covid 19 – Legal market overview and the short/medium/long term implications for firms l Profitability and cashflow management throughout the period l Implications for buying, selling and the merging of firms – what new opportunities will arise? What will values look like? l Tax planning and savings opportunities from sudden profit adjustments l This years Professional Indemnity Insurance renewal l Marketing to survive and prosper in the new environment. Speakers will include David Rowe & Donal Maher from Outsource, Bernard Doherty & Courtney Cullen of Grant Thornton, an O’Leary’s Professional Indemnity Insurance director and John Hogg & Victoria Hogg from Enlighten IC. Seminars will qualify for four CPD points – three group study points and one general regulatory point.
Price One delegate €110, two delegates from the same firm €210, three delegates from the same firm €290, four delegates from the same firm €360 To book please email [email protected] or telephone 01 6788490 Outsource are advisors to Irish law firms in the following areas: • Business Management Advice – Covid 19 action plans, fee levels, cost levels, banking, sources of assistance. • Strategic Planning. • Financial control. • Advice on Mergers, Acquisitions and Disposal and brokering of arrangements. gazette.ie Law Society Gazette June 2020 PROFILE 31
WHEN YOU GO FROM BEING A LAWYER TO WORKING IN A COMMERCIAL ROLE, YOU ARE NO LONGER GIVING PEOPLE THE TOOLS AND INFORMATION TO MAKE DECISIONS – YOU ARE MAKING THE DECISIONS YOURSELF. THAT CAN BE VERY EXCITING AND VERY SCARY – THAT TRANSITION FROM BEING AN ADVISOR TO BEING AN ACTOR
home and community when you have that foreign-exchange business. We are really planning skills and a background in law – it free time not spent sitting in traffic.” keen to see a return to normality, but we just applies in everything we do, because That said, the downside of doing know we cannot have ‘business as usual’ everything we do now is regulated.” business in a remote location is that it while lives are at risk from the virus.” Ruth concludes that most good lawyers comes with a lot of business travel. Prior to are already in the habit of coming up with the coronavirus pandemic, Ruth typically Look before you leap solutions rather than focusing solely on travelled to Dublin approximately every How have her legal skills benefited her in the problems – even if they’re not the ones second week, often using flights from Kerry fulfilling her commercial role at the company? necessarily implementing the solutions. Airport, which, she says, were always packed. “The skills you develop as a solicitor “Good lawyers are very pragmatic and Meetings are being carried out remotely are so valuable in business,” she says. very commercial in their approach. All of now, which has its advantages, but she misses Sometimes, when we are training and that works perfectly when you go into a the face-to-face contact. developing as lawyers, we fail to see the business role. It’s a change in mindset, but Has the pandemic affected demand for other applications of the knowledge we are well-positioned to make it. Fexco services? we’re developing. But it’s such a helpful “As a lawyer, you interpret the law – and “Fexco staff have really risen to the background to have in business. Lawyers’ that’s finite and correct. You don’t have the challenge by moving to remote working and understanding of risk is so valuable because, benefit of being right in business, however. by adjusting our offices to make them safe,” nowadays in business, we all have to put in a It’s much more nuanced. says Ruth. “From a business perspective, the lot more planning before we take action. “Success and failure are both part of doing pandemic has stopped most international “Everyone has to look before they leap business. But you need to make sure your travel, which is a driver for a lot of our now, so having good analytical skills, good successes are bigger than your failures.” 32 MEDICAL NEGLIGENCE June 2020 Law Society Gazette gazette.ie
AT A GLANCE
n The costs of future care and medical treatment in catastrophic injuries claims are hard to quantify n Lump-sum awards have proved to be a crude instrument n Where uncertainty exists, the courts have approved interim awards n Indexation of periodic payments linked to the HICP could result in significant under-compensation of care costs
In Hegarty v HSE, Murphy J recently analysed the long- awaited Civil Liability (Amendment) Act 2017 and found it ineffectual in providing solutions in catastrophic injuries cases. Kate Ahern grasps the thorn
KATE AHERN IS A PRACTISING BARRISTER AND FORMER SOLICITOR
atastrophic injury is defined as a personal lies between the cost of care for the injury that results in a permanent duration of the plaintiff’s lifetime, and disability, requiring the person to receive placing the defendant in a position where lifelong care and assistance in all activities they can accurately budget for their of daily living or a substantial part thereof. care costs. Such claims predominantly comprise The difficulty for courts in catastrophic catastrophic birth injuries, which involve injuries claims is that the costs of future particularly vulnerable members of society, care and medical treatment are hard to whom the courts seek to protect. quantify. Where such uncertainty exists, The courts have traditionally faced the courts have approved interim awards. difficulties in implementing a fair and This approach requires court applications reasonable scheme whereby the plaintiff at each interim stage, involving is adequately compensated in catastrophic submissions regarding the plaintiff’s injuries claims. The balance to be struck progress and costs of treatment, which THORNY QUESTION gazette.ie Law Society Gazette June 2020 MEDICAL NEGLIGENCE 33 PIC: SHUTTERSTOCK
THE COURT WENT ON TO STATE THAT, ‘IN ITS CURRENT FORM, THEREFORE, THE LEGISLATION THORNY IS REGRETTABLY, A DEAD LETTER. IT IS NOT IN THE BEST INTERESTS OF A CATASTROPHICALLY INJURED PLAINTIFF TO APPLY FOR A PPO UNDER QUESTION THE CURRENT LEGISLATIVE SCHEME’ 34 MEDICAL NEGLIGENCE June 2020 Law Society Gazette gazette.ie
THE VARIOUS EXPERTS INSISTED THAT, FOR THE PURPOSES OF CALCULATION OF CARE COSTS WITH ANY ACCURACY, THE ANNUAL AMOUNTS MUST BE LINKED TO A WAGE-BASED INDEX TO ENSURE FULL COMPENSATION FOR FUTURE CARE NEEDS
proves unsatisfactory for plaintiffs and be abandoned. The court called for the nature of the injuries suffered by the defendants alike. legislative reform by pointing to the Report plaintiff and the form of award that would The court’s inherent jurisdiction to of the Working Group on Medical Negligence best meet their needs. approve interim payment orders was and Periodic Payments, which concluded confirmed by Barr J in Miley (a minor) v that the English system of compensation Notable distinction Birthistle, in which it was held that a lump- by periodic payment orders (PPOs) A notable distinction is that the British sum award could result in a grave injustice represented the most modern and effective legislation provides that PPOs be linked to the defendant. Accordingly, the future model for the payment of ongoing care to the annual survey of home-carer earnings care-costs element of the claim was and associated costs in such actions. (Earnings and Hours Worked, Care Workers: adjourned to allow time for the plaintiff’s In Britain, section 2(1) of the Damages ASHE Table 26). No such index exists in treatment to take effect, at which stage Act 1996 provides that a court awarding Ireland. Notwithstanding the recommen- it was hoped that a clearer picture as to damages for future pecuniary loss in dations of the working group in respect of future care costs could be presented. respect of personal injury may order that the establishment of the necessary care-costs the damages are wholly or partly to take index, the act was passed, requiring referral Urgent requirement the form of periodical payments. only to the Harmonised Index of Consumer In another catastrophic injuries claim, Lord Lloyd in Wells v Wells held that Prices (HICP), with no discretion or Russell (a minor) v HSE, Irvine J expressed PPOs benefit those whose prognosis may deviation permitted by the court. the urgent requirement for the legislature be uncertain at the date of trial. It is this to act in respect of prescribing how awards very scenario that it was hoped would nder the act, provision was made of this nature should be dealt with. The be encapsulated by the legislation in this that the Minister for Justice court referred to the fact that lump-sum jurisdiction. undertake a review after five years awards in respect of catastrophic injuries The Civil Liability (Amendment) Act Uto determine the suitability of the HICP for are “a crude instrument which can give 2017 (enacted on 1 October 2018) amends the purposes of the annual adjustment of rise to injustice to either party where the Civil Liability Act 1961 and makes the amount of payments provided for under the greater the inaccuracy of the agreed provision for PPOs to be made in respect PPOs. predicted life expectancy, the greater the of the whole or part of the damages The 2019 decision in Hegarty v HSE potential injustice”. awarded, which relate to: highlighted that a review of the act would • The future medical treatment of the be more appropriate, holding that the hen the costs of medical plaintiff, indexation provided for under the legislation treatment and care are so • The future care of the plaintiff, was not in the best interests of the plaintiff, high, it is clear that any • The provision of assistive technology rendering the act unworkable. miscalculationW could result in either or other aids and appliances associated The plaintiff in Hegarty suffered a overpayment by the defendant or under- with the medical treatment and care of hypoxic brain injury at birth, for which the compensation of the plaintiff. the plaintiff, and defendants admitted liability. The matter was The court described the making of • Damages in respect of future loss of compromised, and the terms of settlement lump-sum awards to compensate for earnings. were ruled in October 2016, where an past and future losses, to include future interim order was made for payment of a pecuniary loss, in catastrophic injury cases The court is required to have regard sum in respect of general damages. as “fallible, unjust and grossly outdated”, to the best interests of the plaintiff and The balance of the plaintiff’s claim, being and recommended that such an approach the circumstances of the case, including the future accommodation costings and loss gazette.ie Law Society Gazette June 2020 MEDICAL NEGLIGENCE 35 PIC: SHUTTERSTOCK
of earnings, was adjourned for a period of capacity as protector of the ward. Kelly P payment can be achieved that would avoid three years, where it was envisaged that directed trial before a judge of the High the risks of the recurring compensation further damages would be assessed by either Court on the following issues: falling behind, having regard to wage and a lump sum, further interim settlement (the • Whether the legislation ousts the medical inflation? option preferred by the plaintiff), or PPO inherent jurisdiction of the court to (the preferred option of the defendant). assess damages for the ward’s needs, n November 2019 in the High Court, On the adjourned date in October whether by reference to the best Murphy J dealt with the above queries as 2019, the plaintiff sought a further interim interests of the ward or otherwise? follows: payment; however, the defendant believed • If jurisdiction is not ousted, a I1) The inherent jurisdiction of the court that, since the legislation was now in place, a determination as to what are the best is not ousted by the act. In McEnery PPO would be more appropriate. Numerous interests of the plaintiff herein? v Sheahan (2019), the Supreme Court other similar matters were adjourned on the • Whether the court is precluded by the confirmed that legislative changes same basis, awaiting the implementation of act from fixing an increase other than should not be presumed to alter existing the act. the amount specified in the HICP, jurisdiction in the absence of clear as published by the Central Statistics evidence. Questions for the High Court Office? 2) The court referred to the working In December 2016, the plaintiff was made a • Whether, and to what extent, a court group’s report, which was the genesis ward of court, and the matter came before retains jurisdiction to identify a means of the legislation, in particular, the the President of the High Court in his by which indexation of the recurring recommendation that an earnings- LAW SOCIETY PROFESSIONAL TRAINING
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LSPT Gazette ad June 2020 Combined.indd 1 14/05/2020 18:41 gazette.ie Law Society Gazette June 2020 MEDICAL NEGLIGENCE 37
EVIDENCE WAS SUBMITTED THAT CALCULATED THE PROBABILITY OF A SHORTFALL OF UP TO 52% OF THE PLAINTIFF’S ANNUAL CARE COSTS AT THE AGE OF 50, SHOULD A PPO LINKED TO THE HICP BE APPLIED
related index be established to assist in regrettably, a dead letter. It is not in the In Hegarty, the defendant submitted quantifying changes over time in levels best interests of a catastrophically injured that the new legislative scheme added of care costs. plaintiff to apply for a PPO under the another string to the bow of the High current legislative scheme”. Court. However, as Murphy J put it: The court analysed the indexation options The act confers no power on the courts “Unfortunately … it is a string which may outlined in the act, noting with some to alter, amend or adjust the HICP index. not be played as frequently as might have frustration that the court was not permitted The court has no inherent jurisdiction in been hoped.” to apply any indexation other than the relation to PPOs, and its power in relation HICP. It is only the minister who may to same is as provided for in the statutory specify an alternative index (section 51). scheme. The court described as “overwhelming” The court indicates that a “chink of LOOK IT UP the evidence presented that indexation light” exists pursuant to section 51I(3), of periodic payments by reference to the which permits parties to agree on the terms CASES: HICP will result in under-compensation of a PPO, which may then be ruled by a n Hegarty v HSE [2019] IEHC 788 of a plaintiff. The various experts insisted court. n McEnery v Sheahan [2019] IESC 64 that, for the purposes of calculation of n Miley (a minor) v Birthistle [2016] care costs with any accuracy, the annual Regrettable IEHC 196 amounts must be linked to a wage-based It is regrettable that the legislature did n Russell (a minor) v HSE [2015] IECA index to ensure full compensation for not follow the recommendations of 236; [2016] 3 IR 427 future care needs, and that payment linked the working group and that the long- n Wells v Wells [1999] 1 AC 345 to the HICP will not provide the plaintiff anticipated act did not prove to be the with 100% compensation in respect of his solution to the concerns raised by the LEGISLATION: future care and medical-treatment needs. courts and the parties to claims involving n Civil Liability Act 1961 Evidence was submitted that calculated the catastrophic injuries. n Civil Liability (Amendment) Act 2017 probability of a shortfall of up to 52% of n Damages Act 1996 (Britain) the plaintiff’s annual care costs at the age he crucial component of PPOs of 50, should a PPO linked to the HICP of this nature is the provision of LITERATURE: be applied. care costs with accuracy to provide n Earnings and Hours Worked, Care The court concluded that, in Tcertainty for all parties. Though the courts Workers: ASHE Table 26 circumstances where “the expert evidence are hamstrung by their lack of discretion as n Rules of the Superior Courts is unanimous that the indexation chosen to the indexation to apply, parties are not (Personal Injuries: Periodic Payment (HICP) will not meet the future care needs so restrained and may agree an index of Orders) 2018 – SI 430 of 2018 of catastrophically injured plaintiffs, then their choice, which PPO may then be ruled n Report of the Working Group on no judge charged with protecting the best on by a court. Legislation on Periodic Payment interests of a plaintiff, which is the first In the meantime, Murphy J suggests Orders (22 April 2015) requirement of the exercise of a court’s the use of payments on account against n Report of the Working Group on discretion under the legislative scheme, the ultimate award as a more efficient and Medical Negligence and Periodic could approve such a PPO”. less costly alternative, in order to ensure Payments (module 1, October The court went on to state that, “in its that the plaintiff’s ongoing needs are 2010) current form, therefore, the legislation is appropriately met. 38 LANDLORD AND TENANT June 2020 Law Society Gazette gazette.ie
SHIRLEY NOT? It’s a misconception to say that mere ‘change of use’ makes a party eligible to acquire the fee simple under the ground-rents legislation. Gavin Ralston shuts that door
GAVIN RALSTON SC WAS A MEMBER OF THE GROUP THAT ADVISED THE MINISTER FOR JUSTICE IN RELATION TO THE 2019 ACT
The author wishes to thank Prof John Wylie for reviewing this article
AT A GLANCE n The Landlord and Tenant (Ground Rents) (Amendment) Act 2019 remedies certain consequences of the O’Gorman v Shirley judgment n It seeks to reinstate the commonly held view prior to the Shirley litigation n Guidance is given on what comprises ‘permanent building’, alteration or reconstruction, change in use, extent of the alteration, change in the character, and other matters gazette.ie Law Society Gazette June 2020 LANDLORD AND TENANT 39
he Landlord and Tenant (Ground Rents) (Amendment) Act 2019 came into force by ministerial order on 17 January. The act was introduced as a private member’s bill and was adopted by the Government in order to remedy certain consequences following the decision of Peart J in the case of O’Gorman v Shirley. This was a Circuit appeal by the landlord flowing from a ground-rents application before the Monaghan county registrar. Those proceedings were tied to a parallel constitutional challenge to the ground-rents legislation by the Shirley estate. The constitutional challenge and the ground-rents appeal were heard in tandem. It was, however, accepted by Peart J that a precondition to permitting a constitutional challenge was the establishment of locus standi by the plaintiff. This necessitated that the final outcome of the Circuit appeal be determined before the constitutional challenge could proceed. Having upheld the entitlement to purchase the freehold, in the Circuit appeal, Peart J went on to hold that the legislation was not unconstitutional. On an appeal to the Supreme Court by the landlord, the Supreme Court expressed the view that the trial judge had been wrong in his conclusions in the Circuit appeal and, hence, the plaintiff did not have locus standi to challenge the constitutionality of that legislation. Of course, as the Supreme Court pointed out, the decision in the Circuit appeal was final, PIC: SHUTTERSTOCK 40 LANDLORD AND TENANT June 2020 Law Society Gazette gazette.ie
with no further avenue for appeal – the buildings, and not an addition. see in the photograph taken in the 1930s. result being that the substance of the Having held that, by reason of additions, It is, like it or not, now a commercial constitutional challenge was never tested at the building had lost its original identity, premises – a change to which the landlord, Supreme Court level. he went on to consider whether condition 1 in effect, consented to by the removal of the of section 10 was satisfied. That condition restriction as to user as a private dwelling Play your cards right required that the permanent buildings were in exchange for an increased rent. The It should be noted that that position of the erected by the person who, at the time of character of the building is so completely Supreme Court has recently been reversed, the erection, was entitled to the lessee’s altered from what it was that one would be in the case of Pepper Finance Corporation interest. He said: “I do not take the view forced to conclude that its original identity (Ireland) DAC v Cannon (February 2020), in that it can be satisfied in the present case by has been lost, and in saying that I am closing which the Supreme Court held that, under establishing, or at least satisfying the court, my mind to the additional buildings, for the the 33rd amendment to the Constitution, that the works carried out to Carrick House reason that I am of the view that they are the Supreme Court may, in appropriate by the tenant are of such a nature as to not caught by the savour in the section.” circumstances, hear an appeal from a have caused Carrick House to have lost its decision of the High Court in a Circuit original identity, and that, in that sense, the e further noted evidence that the appeal. That provision was not, however, in present Carrick House structure has been area of the buildings was increased force when Shirley was heard. erected by the lessee. That seems to me to almost fivefold. Peart J went on to be straining the meaning of section 10(1) of Hhold that the tenant was entitled to acquire n the Circuit appeal, Peart J pointed the act. Therefore, I hold that condition 1 is the fee simple under the provisions of out that, in relation to section 9(1)(b) of not satisfied in this case.” condition 2 of section 10, being the condition the 1978 act, one of the requirements applicable where the rent is less than the Iat (b) is “that the buildings are not an Generation game rateable valuation. That condition also has improvement”. Earlier in his judgment, he had concluded the provision that it must be established that ‘Improvement’ was defined in section that the buildings had lost their original the buildings were not erected by the lessor 9(2): “In subsection (1)(b) ‘improvement’ identity: “The question in my mind seems or his predecessor in title. in relation to buildings means any addition to be reduced to whether, in the light of Peart J was severely criticised by the to or alteration of the buildings and the works carried out within the original Supreme Court on the issue of whether it was includes any structure which is ancillary or house, and the change of use on the ground established that the buildings were erected subsidiary to those buildings, but does not floor and the creation of rented flats on the by the lessor or a predecessor in title of the include any alteration or reconstruction of two floors above, as well as the loss of the lessor, because he had not considered the true the buildings so that they lose their original garden and outhouse, this property is no interpretation of ‘predecessor’ in title. identity.” longer identifiable as the house that it was Peart J pointed out that the saver in the before 1972. The answer to that question, Call my bluff latter part of the definition, that excludes as far as I am concerned, is quite obviously This was an unhappy case from many alteration or reconstruction, did not refer to that it has lost that original identity. By no perspectives in understanding the operation any ‘addition’ to the buildings, as the first stretch of anybody’s imagination could it of the Ground Rents Acts. Prior to this case, part of the definition had. In other words, be said that this is still the same premises it had been generally accepted that works what was to be considered was limited to as the rather attractive private residence that had the effect of causing a building to alteration or reconstruction of the original with garden and outhouses which one can lose its original identity were regarded as
THE SORRY CONSEQUENCES OF THE SHIRLEY LITIGATION AND THE CONSTITUTIONAL CHALLENGE ARE ENTIRELY UNSATISFACTORY AND, ALTHOUGH THE GROUND-RENTS LEGISLATION SURVIVES, MUCH CONFUSION HAS ENSUED gazette.ie Law Society Gazette June 2020 LANDLORD AND TENANT 41
TO STATE THAT A REQUIREMENT FOR PERMANENT BUILDINGS TO BE ON THE LAND, AND THAT SUCH ‘PERMANENT BUILDINGS ARE NOT AN IMPROVEMENT’, BEGS THE QUESTION ‘AN IMPROVEMENT TO WHAT?’ having been erected by the tenant. The term sorry consequences of the Shirley litigation cannot, on its own, ‘permanent building’ did not appear to have and the constitutional challenge are entirely without the alteration been considered by the superior courts in the unsatisfactory and, although the ground- and reconstruction of context of section 9. rents legislation survives, much confusion the existing buildings, Unfortunately, the difficulty was then has ensued. be a determining factor. compounded by the decision of Peart J, on which he was supported by the Supreme Give us a clue hose changes are then incorporated Court, that the reference to ‘permanent The 2019 act sets out to remedy some of into condition 1 of section 10: that buildings’ means “all the permanent the difficulties and inconsistencies raised by permanent buildings, which have buildings”. Fennelly J’s rationale at paragraph the Shirley judgments. It seeks to reinstate Tcaused the buildings to lose their original 58 was that, otherwise, a tenant could easily what was the commonly held view prior to identity, may come within the provision that come within the provisions of the act: “If the that litigation. The new section 9(1)(b) they were erected by the lessee. term ‘permanent buildings’ means that it is provides that the permanent building Condition 2 has been modified to make sufficient if the lessee has erected merely part comprises, in whole or in part, an alteration clear that the term ‘predecessor in title’ does of the buildings, however small, the right or reconstruction, and that the alteration or not refer to a previous lessee and, further, compulsorily to acquire the fee simple would reconstruction caused the buildings to lose that the rateable valuation now refers back be conferred.” their original identity. The effect of that new to the old valuation lists, meaning a rateable That decision is hard to reconcile with the provision is that the entitlement now clearly valuation other than the latest valuation lists. effect of section 9(1)(b) and the definition in applies in the case where there were existing It will be seen from the foregoing that the section 9(2) of the Landlord and Tenant buildings, but which have been so altered as 2019 act does not extend or enlarge (Ground Rents) (No 2) Act 1978, which to change their original identity. the entitlements of tenants, but rather refers to the buildings losing their original Further guidance is given in section 9(6), clarifies what had been a considerable identity: “In subsection (1)(b) ‘improvement’ which sets out a number of matters that may judicial tangle. in relation to buildings means any addition be taken into account in considering whether to or alteration of the buildings and includes the permanent buildings have lost their any structure which is ancillary or subsidiary original identity. These include a change LOOK IT UP to those buildings, but does not include any in use, extent of the alteration, change in alteration or reconstruction of the buildings the character, and such other matters as the CASES: n A O’Gorman & Co Ltd v JES Holdings so that they lose their original identity.” arbitrator may consider. It is further provided Ltd [2005] IEHC 168 It surely must be the case that any in 9(6)(b) that the fact that parts of the n Pepper Finance Corporation (Ireland) alteration or reconstruction that changes the original building are still identifiable is not a DAC v Cannon [2020] IESC 2 original identity of a building could not be reason to say the buildings have not lost their n Shirley v O’Gorman & Co [2012] small works, as Fennelly J suggested. original identity. IESC 5 It must be conceded that the wording It is important to recollect that the of section 9(1)(b) is not a model of clarity. provisions of section 9(6), setting out criteria LEGISLATION: To state that a requirement for permanent that may be considered, relate back to section n Landlord and Tenant (Ground Rents) buildings to be on the land, and that 9(1)(b), which is that the permanent buildings, (No 2) Act 1978 such “permanent buildings are not an in whole or in part, comprise “an alteration n Landlord and Tenant (Ground Rents) improvement”, begs the question ‘an or reconstruction”. Therefore, while ‘the use’ (Amendment) Act 2019 improvement to what?’ Nevertheless, the of the property is now identified as a factor, it 42 MENTAL HEALTH June 2020 Law Society Gazette gazette.ie PIC: SHUTTERSTOCK gazette.ie Law Society Gazette June 2020 MENTAL HEALTH 43
Practitioners in mental- health law should read the recent decision in IF I WANT v Mental Health Tribunal closely, as it brings welcome clarity to the appeals process under the 2001 Mental Health Act. TO Harriet Burgess explains
HARRIET BURGESS IS A DUBLIN- BREAK BASED BARRISTER FREE
he recent Supreme Court decision in IF v Mental Health Tribunal & Ors can be read as a recognition of the importance of safeguards inT relation to the deprivation of liberty, in all circumstances. Central to the safeguarding of the right to liberty is ensuring that there is: AT A GLANCE • A right of appeal for detained persons against decisions governing their n Central to safeguarding the right to liberty is ensuring that there is a right to detention, appeal against the detention, that the procedures leading to the detention • Confirmation that the procedures leading were carried out in accordance with law, and that the continued detention is to their detention have been carried out in subject to scrutiny accordance with law, and that n A recent decision clarifies the practicalities of appeals against decisions of • Their continued detention is subject to Mental Health Tribunals scrutiny. n An appeal against an admission order becomes moot where a renewal order has been brought; renewal orders merely extend the life of admission orders The author wishes to thank Niall Nolan BL for reviewing this article 44 MENTAL HEALTH June 2020 Law Society Gazette gazette.ie PIC: SHUTTERSTOCK In IF, Dunne J recognised the importance of a patient’s right to appeal where they have been involuntarily detained by reason of their mental illness. At paragraph 35, she states: “It has always been a hallmark of a constitutional democracy such as ours that the deprivation of the liberty of an individual is not to be lightly undertaken. This is so whether one is concerned with the situation of a person convicted of a criminal offence, or a situation such as this where a person may be the subject of an involuntary detention by reason of the state of their mental health.” This is in line with previous case law on the Mental Health Act 2001, which has emphasised the necessity of safeguards where patients are detained involuntarily. This position is set out in HSE v AM (29 January of the patient, is based on whether or not under section 10 of the 2001 act, and Ms F 2019): “Involuntary detention for psychiatric the tribunal is satisfied that the patient is was subsequently brought to an approved reasons has a long and sometimes disturbing suffering from a mental disorder, and whether centre. Ms F was subject to an admission history in many jurisdictions. This judgment or not certain procedures under the 2001 act order the following day, on 7 October 2015, now considers the scope of the 2001 act and have been complied with. pursuant to section 14 of the 2001 act. She the safeguards contained there. What is dealt That decision, to revoke or affirm had a long history of mental illness at the with generally in this act is a deprivation the admission or renewal order of the time of the making of her admission order. of the fundamental constitutional right to psychiatrist, can be appealed by the patient The admission order was due to expire on 28 liberty. Awareness of this fact is necessary to under the 2001 act to the Circuit Court. October 2015. understand the protections the act contains.” However, exercising that right to appeal, as On 27 October 2015, the admission order is demonstrated by the facts of IF, is far from was affirmed by the Mental Health Tribunal, he Mental Health Act 2001 contains straightforward. pursuant to section 18(1)(a) of the 2001 act. a right of appeal for patients against An appeal to the Circuit Court was lodged decisions of the Mental Health Now I’m here on behalf of Ms F the following day under TTribunal. The role of the Mental Health On 6 October 2015, an application was section 19 of the 2001 act. The appeal date Tribunal under the 2001 act is to affirm or made by a member of An Garda Síochána, was set for 10 November 2015. revoke admission orders or renewal orders pursuant to section 12 of the 2001 act, In the meantime, prior to the appeal made by consultant psychiatrists responsible to take Ms F into custody, as it had been coming on for hearing, a renewal order had for the care of the patient at approved reported that Ms F had threatened her been made on 27 October 2015, pursuant centres of detention. The decision of the neighbours with a butcher’s knife. A to section 15(2) of the 2001 act, extending tribunal to revoke or affirm the admission recommendation was made by a general the period of involuntary detention of Ms F or renewal order, in reviewing the detention practitioner for her involuntary admission until 27 December 2015.
PRACTITIONERS SHOULD NOTE THAT IT HAS NOW DEFINITIVELY BEEN STATED THAT A PATIENT MAY APPEAL AN ORIGINAL ADMISSION ORDER, REGARDLESS OF WHETHER OR NOT A RENEWAL ORDER HAS OR HAS NOT BEEN BROUGHT gazette.ie Law Society Gazette June 2020 MENTAL HEALTH 45
IT IS MANIFESTLY CLEAR THAT THE FOCUS OF THE PROVISIONS IS ON THE PRESENT SITUATION OF THE PATIENT CONCERNED AND IS NOT INTENDED AS, AND DOES NOT OPERATE AS, A HISTORICAL REVIEW OF THE SITUATION THAT PERTAINED AT THE TIME OF THE ADMISSION
When the appeal was heard by President then appealed to the Supreme Court. that the purpose of this section was to allow Groarke on 10 November 2015, he declined Barrett J, in the High Court, held that for patients who were still detained following to hear the appeal against the admission order, Ms F’s appeal against her admission order from a decision of the tribunal to have their ruling: “I am not going to make any order in had become moot, as that order had been condition reviewed before the Circuit Court; respect of an order which is spent … Were supplanted by the renewal order. The Circuit however, the court “is not to engage in a I to hear this appeal, I would be hearing or Court could not affirm the admission order historical analysis”. Charleton J found that carrying out an assessment of the mental and, as the Mental Health Tribunal had the right of appeal under section 19 applied health of the appellant today, but whatever I not yet affirmed or revoked the renewal only in circumstances where the person ‘is’ determine in that regard is moot.” order, the Circuit Court would have been suffering from a mental disorder. premature to make a finding concerning the Hogan J found that Charleton J’s literal atters then proceeded. Paragraph renewal order. He rejected the contention interpretation of section 19(1) in Han was 11 of the judgment states: “The that section 19 of the 2001 act was incorrect, as it rendered another section of the renewal order was considered unconstitutional, stating that, even if the 2001 act, section 28(5), practically unworkable. byM a second Mental Health Tribunal (on 16 act did not provide an appeal mechanism in He held that the lex specialis contained in November 2015). That order was the subject respect of decisions of the Mental Health section 28(5) must be held to prevail over the of an appeal to the Circuit Court and, on 15 Tribunal concerning admission orders, this general provisions of section 19(1). Section December 2015, the Circuit Court heard would not render the section invalid. 28(5) of the 2001 act applies where a patient the appeal against the decision of the Mental has been discharged, and seeks to appeal an Health Tribunal of 16 November 2015, Save me admission or a renewal order that had detained affirming the renewal order, and the Circuit Hogan J, in his judgment allowing the appeal them. Hogan J held that section 19(1) ought Court in its turn affirmed the first renewal of Ms F, considered at length the decision be read as if it read ‘is or was’ suffering from a order made on 27 October 2015.” of Charleton J in the High Court in Han v mental disorder. Ms F commenced judicial-review President of the Circuit Court. Han concerned proceedings, seeking, among other things, a patient who had been discharged. It was he effect of this interpretation, Hogan an order of certiorari quashing the order held that a discharged patient can seek to J held, was that the Circuit Court, of Groarke P on 10 November 2015, and have their detention reviewed by the Mental under section 10, may determine further sought a number of other reliefs, Health Tribunal under section 28 of the Twhether or not the patient is suffering from including: “If, which is denied, the Circuit 2001 act. Charleton J found that this was a mental illness at the time of the hearing of the Court was entitled to have regard to the fact distinct to section 19, which was limited by appeal or if they were suffering from a mental that the admission order had been extended its express words to the current condition of illness at the time of the tribunal decision, subject by a renewal order and to hold that the the patient. to appeal under section 19 (emphasis added). applicant’s appeal was moot, a declaration The relevant section 19(1) of the 2001 act This meant that, for Ms F’s case, the Circuit that section 19 of the Mental Health Act 2001 sets out the following: “A patient may appeal Court had jurisdiction to hear whether or is invalid having regard to the provisions of to the Circuit Court against a decision of a not the tribunal had been correct to affirm the Constitution of Ireland 1937.” tribunal to affirm an order made in respect of the original admission order, even though the In the High Court, Barrett J declined to him or her on the grounds that he or she is original admission order had been replaced by grant the reliefs sought by Ms F. However, not suffering from a mental disorder.” a renewal order. In effect, the Circuit Court the Court of Appeal allowed the appeal of Charleton J found that the use of the could review the original admission order, as Ms F, in judgments delivered by Hogan J and present tense in section 19 – “he or she is the court had the power to review whether or Peart J. The Mental Health Commissions suffering from a mental disorder” – meant not the patient had, in the past (at the time of LegalMindLegalMind LegalMind Supporting Mental HealthSupporting Mental HealthLegalMind and and Resilience Resilience Supporting Mental Health and Resilience ininSupporting Mental Health the the Legal Legal Community Community and Resilience in inthe the Legal Legal Community Community LegalMindLegalMind is a is a confidential, confidential, independent, independent, low lo-costw-cost mental mental health health LegalMind is a confidential, independent, low-cost mental health supportsupportLegalMind for for solicitors solicitors is a confidential, and and their dependants. their dependants. independent, low -cost mental health LegalMindsupportsupport for for is asolicitors solicitors confidential, and and their dependants. their dependants. independent, lo w-cost mental health TheThesupport support support for is solicitors ais permanent a permanent and support,their dependants. support, based based in Ireland,in Ireland, and and will will be be TheThe support support is isa permanenta permanent support, support, based in in Ireland, Ireland, and and will will be be therethere for for solicitors solicitors through through any any personal personal or professionalor professional challenges. challenges. thereThethere support for for solicitors solicitors is a permanent through through any support,any personal personal based oror professional professionalin Ireland, and challenges. challenges. will be SolicitorsSolicitorsthere for can solicitors can call call LegalMind at LegalMind atthrough any any personal any time time of ortheof professionalthe day day or night,or night, challenges. from from all all SolicitorsSolicitors can can call call LegalMind at LegalMind at anyany time ofof the the day day or or night, night, from from all all overover Ireland, Ireland, and and talk talk to ato mental a mental health health professional professional about about any any issues issues overSolicitorsover Ireland, Ireland, can and call and talk LegalMind attalk to to a a mental mental any healthhealth time professionalprofessional of the day aboutor about night, any any fromissues issues all theythey or theiror their family family may may be befacing. facing. theyoverthey Ireland,or theiror their familyand family talk may may to bea be mental facing. facing. health professional about any issues AfterAfterthey this or this initialtheir initial family conversation, conversation, may be facing. solicitors solicitors may may then then avail avail of furtherof further low low- - AfterAfter this this initial initial conversation, conversation, solicitors solicitors maymay then then avail avail of of further further low low- - coscot supportsscot supportsst supports – counselling, – counselling,– counselling, psychotherapy psychotherapy psychotherapy or or psychologicalor psychological psychological supports supports supports coAfterst supports this initial – counselling,conversation, psychotherapy solicitors may or then psychological avail of further supports low- withinwithinwithin a 30 a 30 kilometrea 30 kilometre kilometre radius radius radius of theirof of their their home. home. withincost supports a 30 kilometre – counselling, radius ofpsychotherapy their home. or psychological supports within a 30 kilometre radius of their home.
For more information visit: www.lawsociety.ie/legalmind ForFor more more information information visit: visit: www.lawsociety.ie/legalmind www.lawsociety.ie/legalmind AccessFor themore service information directly visit:and talk www.lawsociety.ie/legalmind to a counsellor now on freephone: AccessAccess the the service service directly directly and and talk talk to toa counsellor a counsellor now now on on freephone: freephone: AccessFor the more service information directly andvisit:1800 talk 81www.lawsociety.ie/legalmind to41 a 77 counsellor now on freephone: 18001800 81 81 41 41 77 77 Access the service directly and1800 talk 81 to41 a 77 counsellor now on freephone: 1800 81 41 77 gazette.ie Law Society Gazette June 2020 MENTAL HEALTH 47 the tribunal decision), suffered from a original admission order is extended by a mental illness. renewal order. Accordingly, she found that Peart J concurred with Hogan J, but added when the matter came before the Circuit that he would have decided the case on the Court, the matter was not moot, and the basis that the renewal order simply extends validity of the admission order could have the life of the admission order. The basis for been considered by the court. the detention of a patient, where a renewal order has been made, remains the original Hammer to fall admission order, albeit extended. This decision brings clarity to the practicalities of advancing appeals of decisions Don’t stop me now Hang on in there of Mental Health Tribunals to affirm or Dunne J in her judgment addressed the renew admission orders. practical issues of the timeframes involved in the provisions under the 2001 act is on the Practitioners should note that it has now relation to admission orders. present situation of the patient concerned definitively been stated that a patient may She stated that “it is extremely unlikely and is not intended as, and does not operate appeal an original admission order, regardless that, even with the most expeditious conduct as, a historical review of the situation that of whether or not a renewal order has or of all of the steps required under the 2001 pertained at the time of the admission.” has not been brought. It is clear from the act, an appeal could be heard by the Circuit She held that section 28(5), which applies judgment that Dunne J recognised the Court within the 21-day period during which where a patient has been discharged, clearly practical implications of deciding that an an admission order is in force.” provides for a historical review – as the patient appeal against an admission order becomes On that basis, she stated that, although has been discharged, there is no question moot where a renewal order has been the 2001 act provided for a right of appeal of the admission order being revoked or brought. to the Circuit Court from a decision of the affirmed. The purpose of the section is The right of patients to appeal against Mental Health Tribunal affirming an order to review the detention of the discharged admission orders has been carefully clarified, for the involuntary detention of a patient, if patient. and the position in relation to renewal orders the approach of Groarke P was correct, that Dunne J addressed the issues raised by has been clearly stated: renewal orders merely “right of appeal in the circumstances of the Ms F’s case by looking at the underlying extend the life of admission orders. initial admission order is practically incapable purpose of the 2001 act – to provide for It is to be welcomed that the right of of being exercised”. the independent review of the involuntary appeal of patients of the initial orders admission of patients to mental hospitals. governing their detention has been given he stated that Hogan J’s approach – in The means by which this was done, in the real and practical effect. determining that section 19(1) of the 2001 act, was to create a Mental Health 2001 act must be read as if the patient Commission and to appoint Mental Health Note: all references in the IF Supreme Court S‘is or was’ suffering from a mental disorder – Tribunals. The decisions of the tribunal were judgment are to the 2001 act, as it was issued was not surprising, given the tight timeframe subject to appeal to the Circuit Court. The before the amendments made by the 2018 in which patients could appeal under the 2001 focus of the review is on the current condition act. The amendments were of no material act. Dunne J noted that, in their submissions, of the patient, at tribunal stage and on appeal. consequence to the issues raised in the judgment, the Mental Health Commission stated that Recognising that the purpose of the 2001 as noted by Dunne J, at paragraph 3. such an interpretation was simply incorrect, act was to create a significant protection for and that counsel on behalf of Ms F stated that patients subject to involuntary detention, it had not been argued on behalf of Ms F that the decision contemplates the tight time- it was necessary to read into the section the frame involved: when an individual has been LOOK IT UP words ‘is or was’. admitted into care, should they never have a Dunne J held that she could not accept ‘meaningful appeal’ of the original admission CASES: Hogan J’s analysis to the effect that section order to the Circuit Court? n Han v President of the Circuit Court 19(1) must be read as ‘is or was’ suffering Having regard to the particular facts of the [2008] IEHC 160; [2011] 1 IR 504 from a mental disorder. She did not agree that case, Dunne J noted the time within which n IF v The Mental Health Tribunal [2018] section 28(5) prevailed over section 19(1). She a renewal order is made, post-admission IECA 101; [2018] 2 ILRM 225 adopted the approach of Charleton J in Han, order. In an analysis that carefully considers n IF v Mental Health Tribunal & Ors stating that the focus of the tribunal at the the practical implications of holding that any [2019] IESC 44 time of its review is to consider if the patient appeal from the initial admission order is n HSE v AM [2019] IESC 3 (unreported, is or is not suffering from a mental disorder. If moot, if a renewal order has since been made, 29 January 2019) the patient is suffering from a mental disorder, Dunne J held that “to interpret a renewal the tribunal affirms the admission order. If order as being a separate and distinct order” LEGISLATION: not, the tribunal revokes the admission order. would be at variance with the underlying n Mental Health Act 2001 Dunne J stated that, on appeal, the focus policy of the 2001 act. n Mental Health (Renewal Orders) Act of the Circuit Court is the same: “In other Dunne J endorsed the approach of Peart 2018 words, it is manifestly clear that the focus of J in the Court of Appeal, holding that the 48 WELLBEING June 2020 Law Society Gazette gazette.ie UNDER PRESSURE A positive aspect of the pandemic is that it has given us the opportunity to talk more freely about our mental wellbeing than ever before. Renee Branson discusses the importance of resilience and wellbeing during COVID-19 – and beyond
RENEE BRANSON IS THE FOUNDER OF RB CONSULTING
t is hard to name one industry, community, Wellbeing consists in autonomy (being in or individual unaffected by COVID-19. The control of your own life), self-efficacy (being pandemic has created vulnerabilities in our competent and capable to succeed and thrive), physical and mental – as well as financial – and relatedness (being in close personal health. relationships). However, vulnerabilities can often shine a Resilience is a set of skills and traits that light on what has long needed to be changed. work together to increase our wellbeing. If For solicitors, this can be a silver lining wellbeing is what we are trying to achieve, in a very dark cloud – the opportunity to resilience is the ‘how’. become more resilient in the face of crisis and challenge. Stress testing It is important to understand how we define When stress affects the brain, cognition, the concepts of disruption, resilience, and motivation, collaboration and creativity can wellbeing. ‘Disruption’ has two meanings: be stunted. Evolution has trained the brain ‘to interrupt by causing a disturbance or to focus on surviving – not thriving – when it problem’ or ‘to drastically destroy the believes it is under attack. This less resilient structure of something’. The pandemic is an mind will take the stimulus created by the interruption at best, and destruction at worst. disruption and allow the so-called ‘lizard The author can be contacted at: [email protected] How we adapt to it and learn from it has the brain’ to take over – fight, flight, or freeze. ability to increase our wellbeing A resilient mind will form new synapses and and resilience. pathways to address the new information. It allows the mind to be self-nurturing, adaptable and innovative. AT A GLANCE How do we cultivate this skill? First, understand what makes up our resilience. n Analysing the disruption and trauma of COVID-19 There are six different domains that make up n Adapting and learning from it will increase our wellbeing and resilience human resilience: connection, calm, health, n How to cultivateI the six domains of resilience reasoning, optimism, and integrity. gazette.ie Law Society Gazette June 2020 WELLBEING 49 PIC: SHUTTERSTOCK
RENEE BRANSON IS THE FOUNDER OF RB CONSULTING
RESILIENCE IS A SET OF SKILLS AND TRAITS THAT WORK TOGETHER TO INCREASE OUR WELLBEING. IF WELLBEING IS WHAT WE ARE TRYING TO ACHIEVE, RESILIENCE IS THE ‘HOW’
Generally speaking, legal professionals around looking ‘weak’ disconnects us from Keeping calm tend to be stronger in some of these areas, our colleagues. It requires people to be less The ability to calm ourselves and self- and need growth in others. These different authentic and, therefore, less ‘seen’. soothe is one of our earliest skills. In babies domains can be thought of as books in a How does this affect wellbeing? Legal and young children, this looks like sucking library. Some are well used and committed to professionals (everyone from solicitors, on a soother and cuddling with a special memory, while others require us to take them barristers, judges, to marketers and business blanket. As we age, however, those calming off the shelf to sharpen our knowledge. development professionals) describe the work- techniques are not socially acceptable. pace as exhausting. Studies show us that when We learn to calm and self-soothe in other Connection we feel alone in the face of crisis, challenge ways. Some of those ways are healthy, Our need for connection is hardwired in each or change, we experience mental and physical while others are maladaptive. It can be easy of us from the time of birth. We need it in fatigue much more acutely. for people to mistake numbing discomfort both our personal and professional lives. It Connection skill builder – take a sticky note for calming discomfort. This is a primary is in professional life that this can sometimes and make a list of those in your personal and cause of substance abuse or other addictive be a challenge. Speaking in general terms, professional life with whom you can be fully behaviour, like shopping, sex, gambling or the legal profession can be a lonely one. authentic – those you can go to when you feel internet use. Solicitors and barristers work in silos, where overwhelmed or frustrated, whose opinions The problem is that we cannot selectively collaboration is often undervalued. Combined and help you trust. It only takes meaningful numb mental and emotional discomfort. with naturally solitary work, the culture of connection with a few people to have a When we numb stress, sadness, or loneliness perfectionism, fear of failure, and stigma dramatic impact on your wellbeing. with a bottle of wine or hours on the DIPLOMA CENTRE DIPLOMA CENTRE Diploma Centre measures to support the profession during Covid-19Diploma Centre measures to support the profession during ·Covid-19 Two courses providing 21 free CPD hours to solicitors · FreeTwo coursescourses providingavailable 21to joinfree until CPD 31hours July to2020 solicitors · AllFree Spring courses courses available moved to join online until 31 July 2020 · DiscountsAll Spring courseson all certificates moved online and diplomas for solicitors on reduced · hours/unemployedDiscounts on all certificates and diplomas for solicitors on reduced hours/unemployed
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Diploma Centre full page Gazette ad June 2020 .indd 1 13/05/2020 11:30
Diploma Centre full page Gazette ad June 2020 .indd 1 13/05/2020 11:30 DIPLOMA CENTRE gazette.ie Law Society Gazette June 2020 WELLBEING 51 DIPLOMA CENTRE internet, we are also numbing joy, peace and Diploma Centre measures to support the profession during true connection. The ability to calm rather than numb requires us to feel the emotion Covid-19Diploma Centre measures to support the profession during we are experiencing, while not allowing it ·Covid-19 Two courses providing 21 free CPD hours to solicitors to knock us off our feet. This can be done STUDIES SHOW THAT through mindfulness, meditation, and · FreeTwo coursescourses providingavailable 21to joinfree until CPD 31hours July to2020 solicitors simple breathing techniques. WHEN WE FEEL ALONE · AllFree Spring courses courses available moved to join online until 31 July 2020 Calm skill builder – try ‘triangle’ · DiscountsAll Spring courseson all certificates moved online and diplomas for solicitors on reduced breathing, which is completely invisible to IN THE FACE OF CRISIS, · hours/unemployedDiscounts on all certificates and diplomas for solicitors on reduced anyone else: hours/unemployed • Inhale for a count of four, CHALLENGE OR CHANGE, • Hold for a count of four, • Exhale for a count of eight. WE EXPERIENCE MENTAL Introduction Certificate Introductionto Arts, Optimism AND PHYSICAL FATIGUE inCertificate Technology Entertainmentto Arts, Lawyers have a tendency toward scepticism, in TechnologyLaw andEntertainment Media Law cynicism and pessimism, because the legal (FREELaw ) MUCH MORE ACUTELY and (MediaFREE) Law profession rewards such traits. It is what (FREE) (FREE) makes solicitors good at their jobs. They are able to see the flaw in the contract are will help you identify your reasoning to your body for warnings of emotional that could cost a client millions. They strengths during crisis, challenge, or change: distress. Depression and anxiety can can discern when a witness is not being • Intuitive thinkers leap from one idea to manifest as chronic headaches, insomnia, forthcoming. These are useful tools. Offering a range of CPD recognised courses to suit a busy schedule the next. They are good at quick problem gastrointestinal problems, high blood solving. pressure, and more. Even mild stress can Offering a range of CPD recognised courses to suit a busy schedule COURSE NAME DATE FEE ut these tools, when applied in the • Systematic thinkers plan each move, be felt through a tightening of the muscles, COURSEIntroduction NAME to Arts, Entertainment and Media Law (online) DATE16 April 2020 FreeFEE wrong context or incorrectly, can step by step. 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DiplomaCertificate in Technologyin Agribusiness & IP Lawand Food Law 1517 October 2020 €3,000€1,650 to anticipate and plan, be adaptable, and to crisis, challenge and change, ask: • When was the last time you took a walk, recognise opportunity. When our reasoning CertificateDiploma in Sportsin Agribusiness Law and Food Law 1721 October 2020 €1,650€2,600 • What value is most important to uphold exercised – or simply spent time outside? ability is honed, we are able to use stress right now? 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This requires us to means of improving our mental wellbeing, Certificate for the Personal Insolvency Practitioner November 2020 €1,650 regain composure, ask for help, expand our not only do we bounce forward from crisis, CONTACT DETAILS Health knowledge, and be willing to take risks. Our bodies are our ‘truth tellers’. How challenge and change, but we are better eCONTACT: [email protected] DETAILS t: 01 672 4802 w: www.lawsociety.ie/diplomacentre Reason skill builder – what kind of thinker we support our physical health affects prepared for a healthier, happier life in the Alle: [email protected] are webcast, allowing participants t :to catch 01up on672 course 4802 work w at: a time suitablewww.lawsociety.ie/diplomacentre to their own needs. Please note that the Law Society of are you? Knowing what kind of thinker you our mental health, and vice versa. Listen future. AllIreland’s lectures Diploma are webcast, Centre reservesallowing the participants right to change to catch the coursesup on course that may work be at offered a time andsuitable course to theirprices ownmay needs.be subject Please tonote chan thatge. the Law Society of 06_20 Ireland’s Diploma Centre reserves the right to change the courses that may be offered and course prices may be subject to change. 06_20
Diploma Centre full page Gazette ad June 2020 .indd 1 13/05/2020 11:30
Diploma Centre full page Gazette ad June 2020 .indd 1 13/05/2020 11:30 52 ANALYSIS News in depth June 2020 Law Society Gazette gazette.ie ‘TWO-HOUR SITTINGS’ CONFUSION ENDED Confusion reigned for two days while the judiciary clarified new health advice given to the Oireachtas. Mark McDermott reports
MARK MCDERMOTT IS EDITOR OF THE LAW SOCIETY GAZETTE
n the morning of 20 aback” by this news. He believed with Sarah McInerney on 21 May, May, the presidents of there would be shock in legal he said that the new guidance rep- the five courts said in a circles that the already extremely resented a “strange piece of novel Ostatement that they had become limited sittings of the courts, since and dramatic advice”. aware of health advice given the the COVID-19 emergency had “When we got this news out previous evening to the Houses struck, would be further dramati- of the blue, there was dismay, of the Oireachtas, to the effect cally reduced as a result. because valiant efforts are being that no two people should spend made by the Courts Service to a cumulative period of more than ‘Bizarre’ reopen the courts, consistent with two hours in the same room in Later that afternoon, in various the public-health guidelines. any 24-hour period. The Courts national media outlets, Murphy “It was bordering on bizarre Service was seeking additional described the development as that we were being given this advice in relation to this. “bizarre and very frustrating”. advice for the first time more than IT WAS “Pending receipt of such addi- “The question has to be asked if two months into the COVID-19 tional advices, the court presi- there has been some miscommuni- crisis, where the public-health BORDERING dents have determined that all cation and overreaction here. The advice up until now had been court sittings will last for no more Dáil has frequently sat for periods admirably clear.” ON BIZARRE than two hours in each day,” the of well in excess of two hours dur- Questioned by McInerney on THAT WE WERE statement said. ing the crisis. Furthermore, busi- the impact that two-hour-a-day The Director General of the nesses and workplaces providing sittings woiuld have, Murphy said BEING GIVEN Law Society, Ken Murphy, was essential services have been oper- that efforts to use technology and very quickly contacted by the ating for periods well in excess of hold remote hearings were to be THIS ADVICE FOR media for his reaction to this two hours for the duration of the applauded, but were not a substi- THE FIRST TIME development. He expressed him- restrictions.” tute for court sittings. “We need self “very surprised and taken Speaking on RTÉ radio’s Today to get the courts open in the inter- MORE THAN TWO MONTHS INTO THE COVID-19 CRISIS, WHERE THE PUBLIC- HEALTH ADVICE UP UNTIL NOW HAD BEEN Murphy: ‘bizarre and very frustrating McInerney: questioned the impact O’Higgins: two-hour rule would be ADMIRABLY CLEAR development’ of ‘two-hour-a-day sittings’ ‘major setback’ gazette.ie Law Society Gazette June 2020 News in depth ANALYSIS 53 PIC: ROLLINGNEWS.IE
ests of citizens, businesses and the sequence of sessions lasting for text for the new arrangements, economy, and the country gener- longer than two hours would be saying that the courts were unlike ally,” he said. that, if someone tested positive, all many enclosed workplaces, in that On the same programme, persons present with them in the the public had access to court- Micheál P O’Higgins (Chairman courtroom would be considered a rooms without ordinarily being of the Council of the Bar of Ire- potential contact. identified, and frequently spent a land) said that a two-hour rule Denning said that the Courts significant portion of a sitting day would represent a “major setback” Service was assessing how ‘safe at hearings. to the reopening of the courts. hearings’ could be held and would Normally, there would be no keep a record of every individual record of who was in attendance Detailed advice present in court for more than and for how long. From now on, By Thursday evening, the Courts two hours, in the event that this however, there would be a pro- Service had received “detailed information would be needed for cedure for recording the identity advice” on the length of sittings, contact tracing. and contact details of all those to allow hearings, free of any two- who attended court, they said. SUCH A hour limitation period, to resume Judicial letters The Courts Service said it was from Friday onwards. Angela In their letters published on taking advice to ensure that any LIMITATION IS A Denning, Courts Service CEO, Thursday, the chief justice and such details would be treated in DISAPPOINTING confirmed that Prof Martin Cor- court presidents said that they accordance with privacy rules mican (Health Protection Surveil- regretted any inconvenience – and those details would be SETBACK TO lance Centre) had clarified that caused by the confusion over the destroyed immediately upon the the public-health advice remained health advice. expiry of any relevant period. THE VALIANT unchanged and that there was no The letters contained infor- “Those who are unwilling to EFFORTS BEING rule that people should spend less mation about additional safety give such details cannot be admit- than two hours in the same room measures for judges, staff, and ted to the courtroom,” the judges MADE BY THE as others. court users. The Law Society warned. “However, this will not Therefore, from an infection- and Bar Council were advised absolve any person who has a legal COURTS SERVICE control perspective, there was of any changes that could affect obligation to be present from TO REOPEN THE no need to limit court sessions their members. fulfilling that obligation, unless to two hours. However, the con- The judges explained the con- released by the court.” COURTS 54 ANALYSIS News in depth June 2020 Law Society Gazette gazette.ie
HI HO, HI HO ... AT SOME POINT It turns out that working from home was the easy part! Keith O’Malley looks at the challenges to be faced when back to the office we go
KEITH O’MALLEY IS THE LAW SOCIETY’S HEAD OF SUPPORT SERVICES
hen we first closed • Phase 2 (from 8 June) will see Pressure to prepare for and our offices and de- solitary workers and others, to accommodate workplaces in camped to the dining who due to the nature of their order to minimise risk is likely roomW table, lots of challenges – work can maintain a two-metre to come from several direc- like bad broadband connections distance constantly, return to tions over the next short while. – were encountered. But we gen- work on a phased basis, For example, expect insurance erally got on with work and made • Phase 3 (from 29 June) will companies to make searching the best of a difficult situation. be relevant to organisations enquiries about risk-minimising We have worked hard over the where employees have low strategies and to require you last months but, for many solici- levels of daily interaction with to take even more measures on tors, it was not work in any kind people and where social dis- matters that they consider to be of traditional sense. New clients tancing can be maintained, critical. and new work enquiries slowed • Phase 4 (from 20 July) is when to a trickle, and they will not all forms of on-site work can Walk this way return in force until we are back start and will involve those The Law Society’s Support Ser- IF THE RATE in (rather than at) work and soci- employees who are selected vices have produced guidelines OF COVID-19 ety has started to normalise. to be the first people to return on how to return to on-site work. Now, it turns out, returning to to on-site working on a gener- A 12-step approach is proposed INFECTION work is not going to be simple or alised basis, that law firms can follow to organ- easy. Even determining a return • Phase 5 begins on 10 August, ise return to the office effectively. FLARES UP AGAIN date is fraught, and employers and it will progress to full on- Let us quickly walk through the WITHIN THE are also being instructed to phase site working arrangements 12 steps: people returning to work over that are likely to happen on a 1) Risk assessment: firms should COMMUNITY, several months and to continue phased basis. carry out an appropriate COVID- as much remote working as pos- 19 risk assessment, and this MORE sible until the middle of August. There is always the possibility should be done in consultation LOCKDOWN that progress could end up being with staff. Firms should share the On the one road slower than this. If the rate of results of the risk assessment with MEASURES The Government has produced a COVID-19 infection flares up their staff, and the risk assessment Roadmap for Reopening Society and again within the community, should be regularly reviewed and WILL BE PUT IN Business. This document revolves more lockdown measures will updated thereafter. PLACE. SO THIS around five phases. Businesses be put in place. So this roadmap 2) Internal communications: the have been instructed to plan really amounts to the best pos- firm will need to provide clear, con- ROADMAP REALLY their return to on-site working sible scenario. sisten and regular communica- according to these phases: The Government’s roadmap tion to improve understanding of AMOUNTS TO THE • Phase 1 (from 18 May) involves advises businesses to develop new ways of working. Employers BEST POSSIBLE outdoor workers returning to plans for a return to on-site should engage with staff to under- their workplaces on a phased work that takes COVID-19 risks stand unforeseen impacts of cha- SCENARIO basis, into consideration. nges to the working environment. gazette.ie Law Society Gazette June 2020 News in depth ANALYSIS 55 PIC: SHUTTERSTOCK
3) Working arrangements: for tage and assess the health-and- mum occupancy for lifts, provide Install screens to protect staff. the time being, staff should work safety risks for new or expectant hand sanitiser in lifts, and encour- Reconfigure seating and tables to remotely if possible. Consider mothers. age the use of stairs. maintain spacing and reduce face- who is required on-site and plan 5) Risk management: where 7) Workstations: review layouts to-face interactions. the minimum number of people remote working from home is and processes to allow people 10) Visitors: encourage visits required on-site to operate safely not possible, firms need to make to work further apart from each via remote connection/working and effectively. Keep in touch every reasonable effort to comply other. Use floor tape or paint to where this is an option. Where with off-site workers on their with Government social-distanc- mark areas to help workers keep site visits are required, site guid- working arrangements, including ing guidelines. Where the guide- to a two-metre distance. Where it ance on social distancing and their welfare, mental and physi- lines cannot be followed in full in is not possible to move worksta- hygiene should be explained to cal health, and personal security. relation to an activity, firms need tions further apart, use screens visitors on or before arrival. Limit Provide facilities for people to to consider whether that activity and arrange people to work the number of visitors at any work at home effectively – for needs to continue for the business side-by-side or facing away from one time. example, remote access to work to operate. each other. 11) Teamwork: consider how team- systems. 6) Social distancing: firms should 8) Meetings: use remote working work is organised and whether 4) Vulnerable staff: staff mem- stagger arrival and departure tools to avoid in-person meet- existing arrangements compro- bers who are vulnerable to times at work to reduce crowd- ings. Only necessary participants mise social distancing in the COVID-19 threats should ing into and out of the workplace. should attend meetings and workplace. be advised not to work outside Handwashing facilities, or hand should maintain two-metre sepa- 12) Work-related travel: minimise the home. Employers should sanitiser where not possible, need ration throughout. non-essential travel and encour- enable workers to work from to be provided at entry and exit 9) Common areas: work collab- age remote options. Minimise home while self-isolating, if points. Do not use touch-based oratively with landlords and other the number of people travelling appropriate. Make adjustments security devices such as keypads. tenants in multi-tenant sites/ together in one vehicle. Clean to avoid workers with disabili- Introduce more one-way flow buildings to ensure proper social shared vehicles between shifts or ties being put at a disadvan- through buildings. Reduce maxi- distancing across common areas. on handover. w w
CALLING ALL HEROES ALL omeless a areHEROES ser i es a ross rela omeless a are ser i es a ross rela and Northern Ireland are experiencing staff and Northern Ireland are experiencing staff s orta es. Crisiscover.ie o e ts people wit s orta es. Crisiscover.ie o e ts people wit e perie e to ser i es t at ee t em. e perie e to ser i es t at ee t em.
You can sign up to a paid crisis relief panel forYou homeless can sign upand to disability a paid crisis services relief if panel you: for homeless and disability services if you: A Qualification in social care, social work,A Qualification health care, in social psychology care, social or relatedwork, health fields care,or, psychology or related fields or, Work experience with vulnerable groupsWork experience such as: homeless with vulnerable people, disability,groups such the as: eldery, homeless refugees people, or childrendisability, in the care eldery, or, refugees or children in care or, Experience and interest in working asExperience a cleaner and or cook interest in working as a cleaner or cook CRISIS COVERCRISIS COVERINITIATIVE INITIATIVE www.crisiscover.ie [email protected] HELP KEEP VITAL SERVICES OPEN [email protected] HELP KEEP VITAL SERVICES OPEN gazette.ie Law Society Gazette June 2020 Eurlegal BRIEFING 57
RECENT DEVELOPMENTS IN EUROPEAN LAW EUROPEAN ELECTRONIC Commission on a cost-orientated it will also now regulate video- It is entitled to publish any final COMMUNICATIONS CODE basis. Spectrum licences are to sharing platform services and on- decision. The European Consumer DIRECTIVE (EU 2018/1972) be a minimum of 15 years, plus demand services, as well as harm- Centre Ireland is the designated Directive (EU) 2018/1972 of the a five-year extension, with the ful content online. There is also authority for the purposes of European Parliament and of the conditions for renewal clearly set consideration of a new e-Privacy issuing alerts/warnings. Failure Council of 11 December 2018 out at the outset. New numbering Regulation to replace the existing to comply with the commission’s contains an electronic commu- rules allow for permanent extra- e-Privacy Directive, which deals decision, order, interim measure, nications code and overhauls the territorial numbers for machine- with unsolicited marketing com- ‘trader’s commitment’, or other regulatory framework in place to to-machine (M2M) communica- munications, cookie consents, measure shall be an offence liable date in relation to telecoms and tions, which facilitates the growth and data breaches. on summary conviction to a class other electronic communications. of the internet of things (IOT). A fine or to imprisonment for a It replaces the Access, Authori- Niamh Hodnett, head of regula- term not exceeding 12 months. sation, Framework and Universal Universal service obligation tory affairs with Three Ireland and The national measures affected Service Directives, which date The universal service obligation member of the EU and Interna- include the European Communi- back to 2002. It does not amend (USO) – which is the basic elec- tional Affairs Committee of the ties (Unfair Terms in Consumer the Net Neutrality Regulation, the tronic communications service Law Society Contracts) Regulations 1995, the e-Privacy Directive, or the Roam- that everyone is entitled to at an Competition and Consumer Pro- ing Regulation, which continue affordable price – now includes EUROPEAN UNION tection Act 2014, and the Central in force separately. The date broadband. There is a pre-con- (COOPERATION BETWEEN Bank (Supervision and Enforce- for transposition for the code is tract summary template adopted NATIONAL AUTHORITIES ment) Act 2013, and it extends to 21 December 2020, although by the European Commission by RESPONSIBLE FOR THE EU measures as implemented into it remains to be seen if this is way of an implementing regu- ENFORCEMENT OF Irish law in dealing with, among delayed in light of the challenges lation on 17 December 2019. CONSUMER PROTECTION others, unfair terms in consumer of implementation against the There are increased transparency LAWS) REGULATIONS 2020 contracts, the indication of prices backdrop of COVID-19. In Ireland, obligations about the quality of (SI 14 OF 2020) of products offered to consumers, it will likely be transposed by way service. There will be notifications The Minister for Business, Enter- the sale of consumer goods and of a statutory instrument by the to alert customers to consump- prise and Innovation, as per sec- associated guarantees, electronic Minister for Communications. tion spends. Best tariff advice is tion 3 of the European Communi- commerce, medicinal products, Separately, there will be further to be provided. There are addi- ties Act 1972 and to give effect the processing of personal data harmonisation measures provided tional rules on switching. Where to Regulation (EU) 2017/2394 and the protection of privacy in through guidelines on a range of bundles are offered to consum- on cooperation between national electronic communications, dis- topics from BEREC (Body of Euro- ers or SMEs, microenterprises, authorities responsible for the tance marketing of consumer pean Regulators for Electronic or not-for-profits, the maximum enforcement of consumer protec- financial services, compensa- Communications). protection of the code applies to tion laws, made these regulations tion for delays in flights, unfair all elements of the bundle. This on 14 January 2020. They imple- business-to-consumer commercial OTT providers brings services (that, to date, ment the EU council regulation practices, the rights of disabled The code brings the ‘over the top’ would not be covered) within the by which competent authorities persons, misleading and compar- (OTT) providers, such as social umbrella of regulation. designated by member states as ative advertising, rail passengers’ media companies, within the tent responsible for the enforcement rights, credit agreements for con- of regulation, albeit to a more Digital developments of the many EU laws listed in the sumers, consumer holiday rights, limited extent than traditional There are a number of other annex of that regulation cooperate passengers travelling by sea and telcos. The definition of services related developments in the digi- and coordinate with each other inland waterways and buses, captured by the code is extended tal space. On 19 February, the and with the EU Commission to alternative dispute resolution to include certain OTT interper- commission published its white enforce compliance with those of consumer disputes (whether sonal communications. There is, paper on artificial intelligence laws. online or not), credit agreements however, a distinction between (AI), which included a proposal for In Ireland now, the Competition for consumers in relation to resi- number-based interpersonal com- the regulation of AI applications. and Consumer Protection Com- dential immovable property, and munications and number-inde- The public consultation closes mission is designated as the sin- unjustified geoblocking and other pendent interpersonal communi- on 14 June. The new Audiovi- gle liaison office for the purposes forms of discrimination based on cations services. sual Media Services Directive is of coordinating the application of customers’ nationality, place of to be transposed by 19 Septem- the council regulation between residence, or of establishment. Wholesale obligations ber 2020, unless it is subject to authorities in Ireland and other Maximum EU-wide termination COVID-19-related delays. As well EU states. It has investigative and Duncan Grehan, Duncan Grehan rates will be set by the European as dealing with major events, enforcement powers as required. & Partners, Solicitors 58 BRIEFING Practice notes June 2020 Law Society Gazette gazette.ie
CONVEYANCING COMMITTEE FORM 24: CLEARING OFF EASEMENTS ON SALE Practitioners will be aware that amending legislation is required. tioners wishing to avoid removal leasehold folio closed. when Form 24 is used by a bank While an application can be of such leases, easements, way- 2) By drafting the transfer deed selling on foot of its power of made subsequently to have these leaves, etc, could try to ensure to the new purchaser in such sale in a mortgage, it clears off burdens restored (if removed fol- that any such burdens ranking a way that it transfers all all subsequent burdens on a lowing registration of the Form after the bank’s charge are pro- interests – “…FREED AND folio in accordance with section 24), it would be better if this tected. This can be done in a DISCHARGED from the 62(10) of the Registration of Title could be avoided. number of ways: said Charge and from all other Act 1964. Some of these burdens Following representations 1) In the case of a lease registered burdens entered in the said could be of benefit to the lands made by the committee, the PRA as a burden on the parent folio folio of the register over which in the folio (such as puisne lease has confirmed that practitioners after the date of registration the said Charge ranks in pri- burdens or the usual easements can rely on the contents of its of a charge – by registering ority SAVE AND EXCEPT in a building estate), and oth- Legal Office Notice 1 of 2019, a priority note on the parent … [the burdens registered at ers (such as rights of way) that, which provides that the PRA will folio indicating that the lease the relevant burden number if registered as a burden, benefit serve a query/notice on a solici- burden ranks in priority to the on the folio that are to be adjoining folios. tor for an applicant before they charge – the consent of the retained]…” It is clearly desirable that these remove these burdens. Solicitors owner of the registered charge or types of burdens are not auto- receiving such a query or notice will be required. Otherwise, by drafting the transfer deed matically cleared off the folio should ensure that they respond on a sale of the lands in the to reflect that the transferee is following a transfer using Form within the time stipulated to the parent folio, the lease burden taking subject to the lease or 24. The Conveyancing Commit- PRA to indicate that they do not will be discharged and the other burdens. tee is of the view that the exer- want such leases or other ease- cise of the bank’s power of sale ments removed. should not have unintended con- As an additional measure, the sequences, and is of the view that committee suggests that practi- CONNECTED PARTIES IN CONVEYANCING AND VACANT SITE LEVY FINANCE TRANSACTIONS The Conveyancing Committee found by logging into the mem- The Conveyancing Committee by logging in to the members’ has published a briefing note bers’ area of the Society’s website has published guidelines on the area of the Society’s website and on the legislation underpinning and clicking on ‘Committees’, company law issues to be aware clicking in turn on ‘Committees’, the vacant site levy (the Urban ‘Conveyancing Committee’, of when dealing with companies ‘Conveyancing Committee’, the Regeneration and Housing Act ‘Resources’, and scrolling to in real estate transactions, ‘Resources’ tab, and scrolling 2015) and its impact on convey- the ‘Guidelines’ section on that including section 239 of the to the ‘Guidelines’ section. See ancing. page. See www.lawsociety.ie/ Companies Act 2014. www.lawsociety.ie/conveyancing This briefing note can be conveyancing-committee. These guidelines can be found -committee.
LAW SOCIETY LIBRARY AND INFORMATION SERVICES – WE DELIVER!
During the current public health crisis, the library is closed to visitors. The library team is working from home. We continue to respond to your legal research enquiries and document-delivery requests.
Unfortunately, it is not possible to lend books during this period. We have access to a large range of databases to answer your enquiries. Self-service access to the entire Irish judgments’ collection is available via the online catalogue. LawWatch will be published weekly as usual. gazette.ie Law Society Gazette June 2020 Guidance notes BRIEFING 59 CYBERSECURITY AND SCAM PREVENTION Solicitor firms are at greater risk of account and the solicitor trans- absolutely certain that the per- should be provided to the other cyber-attack due to remote work- ferred the moneys without veri- son they are speaking to is the person through an alternative ing. With solicitor practices now fying the details. The bank con- actual person with whom they secure communication method. providing legal services remotely, tacted the solicitor, as a flag had wish to exchange bank details. If This method of transferring data members are reminded that been raised by the receiving bank uncertain, practitioners should applies equally to the sharing of cybercriminals are targeting firms and, following the swift action consider a video call where all other sensitive and confiden- to intercept money transfers and of the gardaí, the banks and the the individual can be visually tial information. other sensitive client information. solicitor, the account was frozen. identified. This information is an abridged When the sending of bank version of a detailed guide on reduc- Fraudulent bank account Sensitive information account details via email is ing the risk of cyber-attack when A recent attack involved a firm The most secure method of unavoidable, it is recommended working remotely, available on the that was acting for a property pur- transmitting bank details is that the transfer should occur Law Society website at: www.law- chaser. When the sale collapsed, directly by hard copy. by attaching a password/pass- society.ie/solicitors/running-a-prac- the solicitor received an email To further reduce the risk phrase-protected document con- tice/cybersecurity. request for the return of moneys. of fraud, it is safer to exchange taining the account details to an However, the bank account details bank-account details via tele- email. The password/passphrase John Elliot, Registrar of Solicitors provided were for a fraudulent phone, if the practitioner is that unlocks the document and Director of Regulation CYBERSECURITY AND YOUR PRACTICE As a result of the COVID-19 • Carry out regular scans for attachments from unknown or Law Society website at www.law- pandemic, the vast majority of malware and spyware. unsolicited emails. society.ie/solicitors/running-a-prac- legal services are now being pro- This information is an abridged tice/cybersecurity. vided remotely. With this shift Multifactor authentication version of a detailed guide on reduc- to remote working comes the and Bitlocker FLACing the Advert risk ofAug cyber-attack 18.qxp_Layout when 1 30/08/2018John Elliot, Registrar11:19 Page of Solicitors1 increased risk of cyber-attack. • Consider logging into your working remotely, available on the and Director of Regulation The legal sector is particu- office IT system using multi- larly vulnerable to the reality of factor authentication (MFA). cybercrime, which is becoming This can include a biometric increasingly sophisticated and reader, a unique login code exposes sensitive data and client sent by text, or the use of a moneys to great risk. There are a USB stick as an access key. number of steps (outlined below) • Consider enabling Bitlocker FLAC IS RECRUITING that can be taken to guard against (if the computer uses Windows) SOLICITORS AND BARRISTERS cyber-attack. so that, if a device is stolen, the data therein cannot be accessed. VPN t We are recruiting solicitors and barristers for • Use a VPN (virtual private net- Wi-Fi connection FLAC Clinics which operate in partnership work) to securely access your Only connect via a secure private with Citizens Information Centres through- office database, Wi-Fi connection. out the country. • If working without a VPN, back up data in a secure offline Virtual meetings t By volunteering in a FLAC Clinic you can help manner, Set all virtual meetings to pri- people in your community to access justice. • Take inventory of which vate, with password-only access. employees require full access to t You need to be available for 2 hours on one evening per month and training is provided. your entire office network and Encrypt data ensure that full access is not Finally, ensure that laptops are through personal devices, encrypted and systems installed • Consider restricting access to track and delete data from Please get in touch with us to learn more through personal devices to tablets and phones if they are lost about volunteering with FLAC. email and cloud services only, or stolen. Firms should also keep • Two-multifactor authentication anti-virus software, computer is highly recommended before programmes, and operating Contact Kuda at [email protected] or allowing a personal device to systems up to date, and caution call us at 01 8873600. connect to your network, and must be exercised when opening Also read more at www.flac.ie/getinvolved 60 PROFESSIONAL NOTICES June 2020 Law Society Gazette gazette.ie
WILLS Acres, Sarah (otherwise Saran) RATES (deceased), late of Island, Craan- ford, Gorey, Co Wexford, and formerly of 21 Woodlands Green, PROFESSIONAL NOTICE RATES Lamberton, Arklow, Co Wicklow. RATES IN THE PROFESSIONAL NOTICES SECTION ARE AS FOLLOWS: Would any person having knowl- edge of a will executed by the • Wills – €155 (incl VAT at 23%) above-named deceased, who died • Title deeds – €310 per deed (incl VAT at 23%) on 13 February 2020, please con- • Employment/miscellaneous – €155 (incl VAT at 23%) tact Kevin O’Doherty, O’Doherty Warren & Associates, Solici- HIGHLIGHT YOUR NOTICE BY PUTTING A BOX AROUND IT – €30 EXTRA tors, Charlotte Row, Gorey, Co Wexford; DX 48004 Gorey; tel: ALL NOTICES MUST BE PAID FOR PRIOR TO PUBLICATION. ALL NOTICES MUST BE 053 942 1587, fax 053 942 1313, EMAILED TO [email protected] and PAYMENT MADE BY ELECTRONIC FUNDS email: [email protected] TRANSFER (EFT). The Law Society’s EFT details will be supplied following receipt of your email. Deadline for July 2020 Gazette: 15 June 2020. Alken, Sarah (deceased), late No recruitment advertisements will be published that include references to ranges of post-qualification of 18 Sandycove Road, Sandy- experience (PQE). The Gazette Editorial Board has taken this decision based on legal advice that indicates cove, Co Dublin, who died on that such references may be in breach of the Employment Equality Acts 1998 and 2004. 11 December 2011. Would any person having knowledge of the whereabouts of a will made by the above-named deceased, on or deceased please contact McIner- a will made by the above-named February 2020. Would any person about 4 July 2011, please contact ney Solicitors, Cleggan House, deceased, or know of any poten- having knowledge of a will made Samantha Holton, Beauchamps 46 Eyre Square, Galway; tel: tial beneficiaries, please contact by the above-named deceased Solicitors, Riverside Two, Sir 091 5665 21/29, email: jenny@ O’Connor & Bergin, Solicitors, please contact Donal O’Kelly & John Rogerson’s Quay, Dublin 2; mcinenerysolicitors.com Suites 234-236, The Capel Build- Co, Solicitors, 1 Grand Canal DX 63; tel: 01 418 0678, email: ing, Mary’s Abbey, Dublin 7; Wharf, South Dock Road, Dub- [email protected] Dowd, Clement (deceased), email: [email protected] lin 4; tel: 01 665 8540, fax 01 669 late of The Mill Road, Dangan, 9000, email: info@donalokelly Bourke, Anthony (Tony) Summerhill, Co Meath, who Joyce, James (deceased), a andco.ie (deceased), late of The Lodge died on 14 May 2020. Would any farmer, late of Knockaunbawn, (beside St Mary’s Church), Clon- person having knowledge of the Maam, Co Galway, who died Murtagh, Oliver J (deceased), silla, Dublin 15. Take notice that whereabouts of any will made or on 21 March 2020. Would any late of 22 Cherry Court, Teren- any person(s) having a claim purported to have been made by person having knowledge of the ure, Mount Tallant Avenue, Dub- against the estate please contact the above-named deceased, or if whereabouts of any will executed lin 6W, who died on 3 February Mark Collins, solicitor, Tom Col- any firm is holding same, please by the above-named deceased 2020. Would any person having lins & Company Solicitors, 132 contact Cora Higgins, Regan please contact Mannion Aird & knowledge of the whereabouts Terenure Road North, Terenure, McEntee and Partners, Solicitors, Co, Solicitors, Clifden, Co Gal- of any will made or purported to Dublin 6W; tel: 01 490 0121, High Street, Trim, Co Meath; way, H71 DH48; DX 181002 have been made by the above- email: [email protected] DX92 002 Trim; tel: 046 943 1202, Clifden; tel: 095 21411/21044 or named deceased, or if any firm email: [email protected] email: [email protected] is holding same, please contact Byrne, Michael (deceased), Holmes O’Malley Sexton, Solici- late of 12 Dunancory Demesne, Flanagan, Jean (deceased), late Malin, Patricia (deceased), late tors, Bishopsgate, Henry Street, Virginia, Co Cavan, who died of Apartment 21, Seapark Apart- of 102 Whitebarn Road, Church- Limerick; DX 3007 Limerick; tel: on 19 April 2020. Would any ments, Mount Prospect Avenue, town, Dublin 14, who died on 28 061 313 222, email: [email protected] person having knowledge of Clontarf, Dublin 3, who died the whereabouts of a will made on 7 January 2020. Would any by the above-named deceased person having knowledge of the please contact Martina Sheridan whereabouts of any will made & Co Solicitors, 20A Railway by the above-named deceased Street, Navan, Co Meath; tel: 046 please contact Doyle Legal Solici- 907 3344, email: info@martina tors, 57 Clontarf Road, Dublin sheridansolicitor.ie 3; tel 01 853 7310, email: hazel@ doylelegal.ie Cullen, Dermot (deceased), late of 46 Barnamore Park, Finglas, Greene, Patrick (deceased), late Dublin 11, and formerly of 203 of 38 Leyland Avenue, Bawnogue, Glasnevin Avenue, Dublin 11. Clondalkin, Dublin 22, who died Would any person having knowl- in or around September/October edge of the whereabouts of a 2011. Would any person having will made by the above-named knowledge of the whereabouts of gazette.ie Law Society Gazette June 2020 61 PROFESSIONAL NOTICESNOTICES
Nowalk, Maureen Mary (deceased), late the county registrar for the city of Dublin for of 173 Saint Attracta Road, Cabra, Dublin 7, the acquisition of the freehold interest in the and Navan Road Community Unit, Dublin 7. aforesaid property and that any party assert- LICENSING LAW Would any person having knowledge of the ing that they hold a superior interest in the whereabouts of any will made by the above- aforesaid property are called upon to furnish COVERED named deceased, who died on 23 March 2020, evidence of the title to the aforesaid premises please contact Justin Hughes Solicitors, 89 to the under-mentioned solicitors within 21 Phibsborough Road, Phibsborough, Dublin 7; days from the date of this notice. Cassidy DX149005 Phibsborough; tel: 01 882 8628, 01 In default of such notice being received, the 882 8583, email: [email protected] applicant intends to proceed with the applica- on the tion before the county registrar at the end of Licensing Swan, Joseph Patrick (deceased), late of 21 days from the date of this notice and will 65 Millbrook Lawns, Tallaght, Co Dublin, apply to the county registrar for the city of Acts: and 89 The Crescent, Millbrook Lawns, Tal- Dublin for directions as may be appropriate on Practice laght, Dublin 24, who died on 27 July 2004. the basis that the persons beneficially entitled Would any person having knowledge of the to the superior interest including the freehold Precedents whereabouts of a will made by the above- premises are unknown or ascertained. Protocols named deceased please reply by email to Date: 5 June 2020 [email protected] Signed: Maxwell Mooney & Co (solicitors for the A detailed step-by-step guide to applicant), Claremont House, Kelly’s Lane, May- practice and procedure governing Trappe, Michael Patrick Jude (deceased), nooth, Co Kildare licensing applications. late of Laurel Lodge Nursing Home, Tem- plemichael, Longford, and formerly of 61 In the matter of the Landlord and Tenant Authors: Constance Cassidy and Beneavin Road, Glasnevin, Dublin 11, and Acts 1967-2005 and in the matter of the Elanor Walsh Cassidy Main Street, Longford, and 8 Park Vista, Landlord and Tenant (Ground Rents) (No 2) Format: Hardback Greenwich, London SE10 9LZ, and 171a Act 1978 and in the matter of an application Price: €175 Main Street, Sutton-at-Hone, Dartford, Kent, by Colin Lynam of 9 The Old Mill, Naul, Publishing Autumn 2020 England, who died on 26 July 2017. Would any Co Dublin, and in the matter of the prop- ALSO PUBLISHING person having knowledge of the whereabouts erty known as 66 Main Street, Swords, Co THIS AUTUMN of any will made by the above-named deceased Dublin please contact Patrick Groarke, Groarke & Take notice any person having a freehold Brewers and Partners, Solicitors, 32/33 Main Street, Long- interest or any intermediate interest in all that ford, email: [email protected] and those the property known as 66 Main Distillers in Street, Swords, Co. Dublin (hereinafter called Ireland: Walsh, Walter (deceased), late of Stoneen, ‘the property’), held by the applicant under a Kilfane, Thomastown, Co Kilkenny, who died lease dated 25 March 1938 and made between The Complete on 30 July 2012. Would any person having Christopher McGonagle of the one part and knowledge of a will made by the above-named Catherine J Lawless of the other part for the Legal Guide deceased please contact Fiona Walsh & Com- term of 95 years from 29 September 1937 at a Authors: Constance Cassidy and pany, Solicitors, 10 Patrick Street, Kilkenny, rent of £5 per annum. Máire Conneely R95 WVH0; tel: 056 780 0100, email: info@ Take notice that Colin Lynam intends to Format: Paperback fionawalshsolicitor.ie submit an application to the county registrar Price: €35 for the city of Dublin for the acquisition of TITLE DEEDS the freehold interest in the aforesaid property, The In the matter of the Landlord and Tenant and that any party asserting that they hold a Acts 1967-2005 and in the matter of the superior interest in the aforesaid property are Licensing Landlord and Tenant (Ground Rents) (No 2) called upon to furnish evidence of such title Act 1978 and in the matter of property at to the aforementioned property to the under- Acts: 12 St Anthony’s Road, Dublin 8 – Sausalito mentioned solicitors within 21 days from the The Lawyer’s Limited (applicant) date of this notice. Take notice that any party having interest in Take notice that, in default of any such notice Synopsis the freehold estate of the following property: being received, the applicant, Colin Lynam, Authors: Constance Cassidy and all that and those the property known as 12 intends to proceed with the application before Harry Walsh Saint Anthony’s Road, Dublin 8, the subject the county registrar at the end of 21 days from Format: Paperback of an indenture of lease dated 30 March 1904, the date of this notice and will apply to the Price: €35 made between Joseph Parsons of the one part county registrar for the city of Dublin for such and David Plummer of the other part (herein- directions as may be appropriate on the basis after ‘the lease’) for the term of 185 years, sub- that the person or persons beneficially entitled ject to the yearly rent of £4 thereby reserved to the superior Interest including the freehold and to the covenants by the lessee and condi- reversion in the aforesaid property is unknown tions therein contained. or unascertained. Take notice that Sausalito Limited (‘the Date: 5 June 2020 www.claruspress.ie applicant’) intends to submit an application to Signed: Ó Scanaill & Co (solicitors for the appli- 62 PROFESSIONAL NOTICES June 2020 Law Society Gazette gazette.ie
cant), Columba House, Airside, Marcella Gibbons, née Devaney, Dublin 24, intends to submit an Swords, Co Dublin intends to proceed with an appli- application to the country reg- Require assistance cation to the county registrar for istrar for the city of Dublin for in Northern Ireland In the matter of the Landlord the county of Mayo at the end of acquisition of the freehold interest for the purpose and Tenant (Grounds Rents) the 28 days from the date of this and intermediate interests in the of litigation? Acts 1967-2005 and in the notice and will apply for such aforesaid premises, and any party matter of Landlord and Ten- direction as may be appropriate asserting that they hold a superior ant (Ground Rents) (No 2) Act, on the basis that the persons ben- interest in the aforesaid premises Northern Ireland lawyers, 1978 and in the matter of in eficially entitled to superior inter- (or any of them) are called upon Kearney Law Group, the matter of the Landlord and ests including the freehold rever- to furnish evidence of the title to are interested in dealing Tenant (Ground Rents) Amend- sion of the aforesaid premises are the aforementioned premises to with all civil litigation ment Act 2019 and in the mat- unknown and unascertained. the below named within 21 days claims for those who have suffered injury in ter of an application by Frances Date: 5 June 2020 from the date of this notice. Northern Ireland. Marcella Gibbons (née Dev- Signed: Adrian P Bourke and Com- In default of any such notice aney) in respect of premises at pany (solicitors for the applicant), being received, Lidl Ireland An arrangement of Lahardane, Ballina, Co Mayo Killala Road Business Park, Ballina, GmbH intends to proceed with 50/50 is suggested. Take notice any person having an Co Mayo the application before the county Please contact us today to discuss further. interest in the freehold estate or registrar at the end of 21 days 028 7136 2299 | 028 9091 2938 any lesser or intermediate inter- In the matter of the Landlord from the date of this notice and [email protected] est in the lands and premises and Tenant (Ground Rents) Acts will apply to the county regis- kearneylawgroup.com described as all that and those the 1967-2019 and in the mat- trar for the county of Dublin for Belfast | Derry | Dublin | London dwellinghouse and licensed prem- ter of the Landlord and Tenant directions as may be appropriate ises attached thereto, except the (Ground Rents) (No 2) Act 1978 on the basis that the persons (or building known and used as the and in the matter of the lands some of the persons) beneficially was the subject matter of an post office, situate in the townland and store situated at Dun entitled to the superior interest indenture of lease made on of Lahardane, barony of Tyrawley Laoghaire, Sallynoggin East, including the freehold reversion 3 December 1936 between and county of Mayo, held under Co Dublin, formerly known as in each of the aforesaid premises Michael Patrick Kennedy of indenture of lease between Fran- houses 1-8 inclusive, Mount are unknown or unascertained. Granite Hall, Dun Laoghaire, ces Lavelle and the Coyne estate Belton, Dun Laoghaire, Co Date: 5 June 2020 in the county of Dublin of the as a yearly tenancy and subject to Dublin, and in the matter of Signed: ByrneWallace (solicitors for one part and Thomas Augustus a yearly rent, which said property an application by Lidl Ireland the applicant), 88 Harcourt Street, Tutty of 211 Clonliffe Road in was further assigned to the appli- GmbH Dublin 2, DO2 DK18 the city of Dublin of the other cant herein, being Frances Mar- Any person having any interest part, for the term of 90 years cella Gibbons, née Devaney, in in the freehold estate or inter- In the matter of the Landlord from 25 September 1935, subject deed of assignment dated 10 June mediate interests of the follow- and Tenant (Ground Rents) Acts to the yearly rent of IR£25, and 1941 between Frances Lavelle of ing property: the lands and store 1967-2015 and in the matter of whereas that said lease excepted the one part and Francis Devaney forming part of the lands in the the property at 1 Trimleston and reserved out of the demise of the other part, and whereas no townland of Thomastown, barony Avenue, Booterstown, Black- unto Joseph Evans and Alexander rent has been demanded or paid of Rathdown, electoral division of rock, Co Dublin – Shane Mitch- Moore Doran (the superior under the provision of the lease Dun Laoghaire, Sallynoggin east ell (applicant) and Michael landlords who were executors for as far back as the records go, and county of Dublin, described Patrick Kennedy, Joseph Evans of the estate of Mrs Elizabeth and whereas the applicant and in Folio 198663F of the register, and Alexander Moore Doran Peckenham, otherwise Hayes), her solicitor have failed to trace county Dublin, being all of the (respondents) with the consent of Henry John the whereabouts of any person property demised by an indenture Take notice that any party hav- Hayes (the son of Mrs Elizabeth appearing to be entitled to receive of head lease dated 3 May 1951 ing an interest in the freehold Peckenham), reserved in the the said rent. made between Richard Belton estate of the following property: superior lease of the premises Take notice that Frances Mar- of the first part, Richard Belton all that and those the heredita- with other premises made 29 cella Gibbons, née Devaney, and others of the second part, and ments and premises comprised January 1886 between Joseph being the person entitled to the Our Lady’s Public Utility Society in and demised by the lease and Evans of 50 Kenilworth Square, lessee’s interest in the said lease, Limited of the third part, and therein described as all that the Rathgar, in the county of Dublin, intends to submit an application being all of the property demised plot or parcel of ground situate at and Alexander Moore Doran of to the county registrar for the by eight subleases, the title to Trimleston, Booterstown, delin- Tullykeel, Ardee, in the county of county of Mayo for acquisition of which subleases is registered in eated and having the boundaries Louth of the first part and Henry the freehold interest and all inter- Folio 143609L of the register and measurements shown on the John Hayes of 4 Church Lane mediate interest in the aforesaid county Dublin, and which lands map endorsed on these presents in the city of Dublin of the sec- property, and any party asserting and store were formerly known and thereon outlined in red, and ond part, and Adam Scott of 44 that they hold any interest in the as houses 1-8 inclusive Mount situate in the parish of Taney, half Upper Sackville Street in the city aforesaid property are called upon Belton, Dun Laoghaire, Co barony of Rathdown and county of Dublin of the third part for a to furnish evidence of their title to Dublin. of Dublin, with the shop and term of 100 years from 1 January same to the below-named solici- Take notice that Lidl Ireland dwellinghouse thereon, known 1926 at the yearly rent of £265 tors within 28 days of this notice. GmbH (external company num- as or intended to be known as 1 sterling, and the lands demised by In default of any such notice ber 904141), having its registered Trimleston Avenue, Booterstown, the said superior lease are therein being received, the said Frances office at Main Road, Tallaght, with the appurtenances, which described as all that and those the gazette.ie Law Society Gazette June 2020 63 PROFESSIONAL NOTICESNOTICES house lands and premises known as Trimleston, comprising the IS YOUR CLIENT INTERESTED EUROPEAN RECOGNISED dwellinghouse and out-offices, IN SELLING OR BUYING SPECIALIST IN ANIMAL yard, garden front and back, lawn WELFARE SCIENCE, gate entrance, and lodge and hag- A 7-DAY LIQUOR LICENCE? ETHICS AND LAW gard, also a field containing five RCVS recognised specialist acres Irish Plantation Measure email: [email protected] in animal welfare science, and another field containing web: www.liquorlicencetransfers.ie ethics and law. three-and-a-half acres like mea- sure, be the said several admea- Call: 01 2091935 www.forensicvet.com surements more or less all which Veterinary surgeon said premises, and bounded on Forensic scientist the east by the Blackrock Road, Merrion, in the county of Dublin Lord Viscount Gough, said lands Recognised specialist on the west by lands formerly in on the other part, whereby all of Trimleston being situate in the in animal law the possession of Mrs Dunne and that and those the farm and lands half barony of Rathdown, parish Dr. David Bailey B.V.Sc.,M.Sc now called Nutley, on the north formerly called Farrell’s farm, of Taney, and county of Dublin, (Forensic Science), M.R.C.V.S., Dip. ECAWBM (AWSEL) by lands belonging to the lessors now known as Trimleston, were containing in the whole 19 now in the possession of Mrs demised to the said William acres, no roods, and 37 perches, Anne Burrowes and known by Hayes for the term of 150 years being equivalent to 31 acres, no the name Dornden, and on the from 25 March 1887, subject to roods, and 24 perches English days from the date of this notice. south by the lands of St Helens, the yearly rent of £233.18s.10d Stature Measure or thereabouts, In default of such notice being now in the possession of Lord by reserve. The lands demised together with the houses and received, the applicant intends Viscount Gaugh, as described in by the said lease of 6 June 1856 building standing thereon. to proceed with the application the map annexed hereto, and are are therein described as all that Take notice that Shane Mitchell before the county registrar on situate in the parish of Taney, half and those the farm and lands for- (the applicant) has made an appli- 30 June 2020 and will apply to barony of Rathdown and county merly called Farrell’s farm and cation to the county registrar for the county registrar for the city of Dublin, together with the now known as Trimleston, situ- the city of Dublin for the acquisi- of Dublin for directions as may houses and buildings standings ate at Old Merrion in the county tion of the freehold interest (and be appropriate on the basis that thereon. Whereas that said lease of Dublin, bounded on the east any intermediate interests) in the the persons beneficially entitled appears to originate from an by the sea and Rock Road, on aforementioned property, and to the superior interests includ- indenture of lease dated 6 June the west by lands formerly in that any party asserting that they ing the freehold premises are 1856 made between Solomon possession of Mrs Dunne, now hold a superior interest in the unknown and unascertained. Augustus Richards of Ardmine called Nutley, on the north by aforesaid property are called upon Date: 5 June 2020 House in the county of Wexford the lands of Merrion Castle, and to furnish evidence of title to the Signed: Collins Crowley (solicitors of the one part and William on the south by the lands of Saint aforesaid property to the under- for the applicant), 28 Bridge Street Hayes of Trimleston House, old Helen, now in the possession of mentioned solicitors within 21 Lower, Citygate, Dublin 8; DX 1039 64 FINAL VERDICT June 2020 Law Society Gazette gazette.ie
PRO BONOBO ROCK-PAPER-SCISSORS MORTGAGE SHOCK The Quebec Court of Appeal has ruled that a Can$517,000 bet that was lost in a game of rock-paper- scissors is null and void, Sky News reports. Edmund Hooper had been forced to remortgage his home to pay the debt, which he acquired in 2011 – though the Superior Court subsequently cancelled the remort- gage in 2017. Hooper’s opponent appealed to get his winnings. In the 2017 decision, the judge relied on a Quebec law saying that a contract for a bet must depend on actions “requiring only skill or bodily exertion on the part of the parties” – not just chance. She declared the contract void, saying that the wagered amount was excessive. The Court of Appeal agreed on both counts. TWIN’S PEAK POLITICAL PANTS-DOWN An aspiring lawyer has success- the weighty folders that were fully sued her twin sister after provided to the court weighed PANDEMIC PROBE the latter sneezed and lost con- several kilograms,” he contin- A former New Zealand cabinet He said he “hadn’t realised” trol of their car, The Sydney ued. “It is well-recognised from minister and current city coun- he’d left his camera on dur- Morning Herald reports. observing litigation over a long cillor has been caught with his ing the first adjournment of Law student Caitlin Doug- period that trolleys laden with pants down during a Zoomed the meeting and that he hoped las was awarded AU$183,816 such materials are most com- council meeting, The Guardian the spectacle had provided a (roughly €109,410) after she was monly pulled and pushed by the reports. moment of light relief for his injured in the 2016 accident. most junior members of a legal David Benson-Pope caused a isolated colleagues and any The 21-year-old was in the practice.” stir during the meeting when he constituents watching. “There’s front passenger seat when the The award will be paid by the walked into his study with bare been no other excitement,” he driver, her twin sister, suffered insurance company. legs, carrying a feather duster. remarked. a sneezing fit and lost control. Caitlin experienced “whiplash- like injuries” and was later forced to see several doctors MELONHEADS POSED FOR PICS and chiropractors due to lower Police in Virginia, USA, have A member of the public came back pain. nabbed two thieves who wore forward, saying he had posed for The judge found the 21-year- watermelons as disguises while a picture with the pair after see- old’s future earning capacity had robbing a convenience store early ing them at another store on the been reduced because she was in May, Fox News reports. day of the theft. unable to lift more than 10kg The pair apparently had diffi- And one of the shop’s custom- and would be hindered in her culty sourcing facemasks, so they ers commented: “The amount ability to work long hours. resorted to a homemade solution of work that you have to do to “If illustration of the lifting instead. The police department actually hollow-out a water- and carrying component of legal shared surveillance photos of the melon to stick it on your head, work was required, it would thieves wearing the hollowed-out I think, is kind of crazy. It’s so be sufficient to recognise that fruit, complete with holes for eyes. stupid.” gaLAW SOCIETY ette Giving you the power of three
1. The monthly magazine 2. The daily news site 3. The weekly digest LAW SOCIETY GAZETTE • Vol 112 No 1 No frontiers Dark knights To boldly go The possible impact of It is difficult to reconcile Correctly scoping a discovery Brexit on human rights and vigilante activity with the exercise is critically important equality provisions traditional justice system to its outcome and efficiency 2. gaLAW SOCIETY ette€4.00 JAN/FEB 2018 1. JAN/FEB 2018
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