ISSN 1393−6956 ga
07
9 771393 695029 lockdown rent arrears many mustdealwith As businessesreopen, Arrears ended ROMAN HOLIDAY? LAW SOCIETY Thumbs up for injuries Thumbs upforinjuries jurisdiction decision
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IMPORTANT NOTE ON PAGE VIEW If you are reading the downloaded PDF in two-page view, ensure that you uncheck the ‘Show cover in two page view’ option. This can be found in the ‘Page display’ option under the ‘View’ tab. You should be seeing this page right beside the cover in the correct two-page view. ARE YOU AREAREARE YOUYOU READY?ARE YOU READY?READY?READY? As firmsREADY? across Ireland assess life after lockdown, embracing cloud technologies fast became an overnight necessity. For some, it has been a challenge to provide the technology platform on such short notice to enable their sta to keep working,particularly to the same levels of productivity. 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“WePaul chose Cullen, SureSkills IT Manager, for its Dillon complete Eustace. ‘as a service’ READY?model. Very early in our interaction with their team, it “We chose SureSkills for its complete ‘as a service’ was clear to us that they are all about customer focus. model. Very early in our interaction with their team, it Their technical skills, along with how they took [email protected] time | 01 240 22 22 was clear to us that they are all about customer [email protected] | 01 240 22 22 to understand our needs as a firm, meant it was a Their technical skills, along with how they took the time seamless transition to the new environment.” [email protected] | 01 240 22 22 to understand our needs as a firm, meant it was a seamless transition to the new environment.” As firms across Ireland assess life after lockdown, embracing cloud technologies fast became an overnight Paul Cullen, IT Manager, Dillon Eustace. necessity. For some, it has been a challenge to provide the technology platform on such short notice to enable their Paul Cullen, IT Manager, Dillon Eustace. sta to keep working,particularly to the same levels of productivity. The Firms that had already embraced Cloud Technology were able to move quickly when lockdown came into eect.
SureSkills, in partnership with IBM provide critical IT Solutions and Support to [email protected] of the top Firms | 01 in 240 Ireland 22 22 and are considered to be one of the experts in the Legal Sector when it comes to IT Systems. Leading Irish legal firms [email protected] | 01 240 22 22 including ByrneWallace, Eversheds Sutherland, Dillon Eustace, Eugene F Collins, Hayes & Phillip Lee rely on SureSkills to deliver technology infrastructure and consulting services that oer flexibility – a valued commodity in these disruptive, uncertain times.
“As a result of the great people, impeccable technical "ByrneWallace have worked with SureSkills, a valued knowledge, and flawless execution from the Strategic Partner, for over 10 years. SureSkills remain SureSkills team, our relationship has gone from consistently reliable and never let us down." strength to strength.” John Kelly, Head of IT, ByrneWallace. Rory Clerkin, IT Manager, Eugene F. Collins
“We chose SureSkills for its complete ‘as a service’ model. Very early in our interaction with their team, it was clear to us that they are all about customer focus. Their technical skills, along with how they took the time to understand our needs as a firm, meant it was a seamless transition to the new environment.”
Paul Cullen, IT Manager, Dillon Eustace.
[email protected] | 01 240 22 22 gazette.ie Law Society Gazette July 2020 1
PRESIDENT’S MESSAGE
THE POWER WITHIN
he Government’s focus is shifting strongest when you are feeling your weakest. to considering how to revive Over the past three months, I have remained in business and the economy daily communication with colleagues throughout without triggering a second wave the country, and I remain committed to listening of the coronavirus. That is the and responding to your concerns. I also remain focus shared by all of us in our committed to engaging with all relevant respective practices. stakeholders to lead the profession in navigating While the depth and duration of the crisis the recovery phase. Tremains unclear, what is clear is that many colleagues are returning or preparing to Programme for Government return to their offices in accordance with the As I write this message, a Programme for Return to Work Protocol and, by necessity, are Government has been published. It is very endeavouring to embrace what has been referred reassuring that the programme reflects reforms to by some as ‘the new normal’. that the Law Society has actively lobbied on. Magazines in our waiting areas have been When this Gazette is published, the programme replaced by hand sanitisers and facemasks. will either be approved or discarded. Either way, Partitions replace open-plan spaces. Work hours our lobbying will continue in the interests of are staggered. Directional signage is prominently the profession. placed. Gone are the days when we talked about cleaning our offices – our language has changed to decontaminating our offices. Zoom and other THE FINANCIAL RECOVERY platforms replace face-to-face meetings. These changes are necessary and manageable, and will IS LIKELY TO BE THE MOST assist in stemming a second wave. CHALLENGING PERIOD EVER Financial recovery Aside from the logistical challenges, I recognise FACED BY THE SOLICITORS’ that the economic recovery is likely to be the most challenging period ever faced by the PROFESSION solicitors’ profession. We must endeavour to surmount the challenges and, to do so, we Embracing the ‘new normal’, the Society must not take a short-term view. held its first-ever hybrid Council meeting on Of course, this is easier said than done, Friday 12 June. ‘Hybrid’, as the name suggests, with inevitable cash-flow difficulties and meant that the meeting was attended by socially financial uncertainties in the weeks and months distanced Council members, physically seated in ahead. Financial worries frequently give rise to both the lecture theatre and the James O’Sullivan health issues. We must, therefore, continue to Room, together with members Zooming from be mindful of each other’s physical and mental other locations outside the Law Society. It was health. It is very likely that a colleague on your a very constructive meeting, where we reflected radar is suffering in silence. The Law Society on the last three months. We now look ahead to has accelerated the availability of LegalMind, preparing for recovery and for the future. The and I would encourage colleagues to avail past cannot be changed, but the future is within MICHELE O’BOYLE, of the service. You have to be at your our power. PRESIDENT 2 CONTENTS??????? ?????? July 2020 Law Society Gazette gazette.ie PIC: SHUTTERSTOCK LAW SOCIETY GAZETTE • Vol 114 No 6 Arrears ended In the heat of the night Pick up pandemic Volume 114, As businesses reopen, Discrimination on race is Exploring creativity for many must deal with still the most frequent mental health and lockdown rent arrears complaint seen by the WRC pandemic parenting number 6
gaLAW SOCIETY ette€4.00 JULY 2020 July 2020
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07 ROMAN HOLIDAY? Law Society of Ireland Thumbs up for injuries tel: 01 672 4828 fax: 01 672 4801 9 771393 695029 ISSN 1393−6956 jurisdiction decision email: [email protected]
PROFESSIONAL NOTICES: see the ‘Rates’ panel in the professional notices section of this Gazette 20 COMMERCIAL ADVERTISING: contact Seán Ó hOisín, 10 Arran Road, Dublin 9; mobile: 086 811 7116, tel: 01 834 6891, email: sean@ lawsociety.ie. See the Gazette rate card online at www.lawsociety.ie/ gazette-rates HAVE YOU MOVED? Members of the profession should send change- of-address details to: IT Section, Blackhall Place, Dublin 7, or to: [email protected]
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No material from the Gazette may be published or used without the permission of 6 26 the copyright holder. The Law Society of Ireland can accept no responsibility for the accuracy of contributed articles or statements appearing in this magazine, and any views or opinions expressed are not necessarily those of the Law Society’s Council, save where otherwise indicated. No responsibility for loss or distress occasioned to any person acting, or refraining from acting, as a result of the material in this publication can be accepted by the authors, contributors, editor or publishers. The editor reserves the right to make publishing decisions on any advertisement or article submitted to this magazine, and to refuse publication or to edit any editorial material as seems appropriate to him. Professional legal advice should always be sought in relation to any specific matter.
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A MAGAZINE FOR A HEALTHIER PLANET
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FEATURES
14 When in Rome 26 Down-payment blues In Kellett v RCL Cruises, the Court of Appeal Addressing the fixed cost of rent will be key for many considered the standard of care to be applied in commercial tenants as they move to trade out of the crisis personal injuries proceedings taken under the Package caused by the COVID pandemic, says Alan O’Connor Holidays and Travel Trade Act 1995. Neal Horgan takes a break 30 Heavy burden How does the charge on property created by the Local 20 Race to the front Government (Charges) Act affect a purchaser for valuable The Employment Equality and Equal Status Acts provide consideration of registered land? Joe Thomas and Ruth protections from racial discrimination to employees Cannon report from the front lines and to non-employees who are accessing goods and services, and place obligations on employers and service providers. Katherine McVeigh and Cliona Kimber 34 Parent company refuse to sit at the back How are you coping with working and parenting in a pandemic? Trish Howard and Louise Gartland call ‘time-out’ to take stock and explore our emotions
34 48 52
REGULARS
46 News in depth: Protecting the right to legal advice 4 The big picture for suspects at garda stations Standout photo of the month 48 Human rights: Does recent special emergency legislation threaten the rule of law? 6 People 52 Eurlegal: Copyright and the evolving digital landscape
8 News 55 Briefing 55 Practice notes 13 Opinion 63 Regulation Book review: Irish Conveyancing Law (4th edition) 68 Professional notices 38 Analysis 38 News in depth: Town agents in the time of 72 Final verdict COVID – a saving grace? 42 News in depth: When an EU member state rejects European Court of Justice rulings, what does this mean for the future of the European Union? 4 IN FOCUS July 2020 Law Society Gazette gazette.ie
THE BIG PICTURE
PURPLE REIGN Flare smoke envelopes an armed supporter of Black Lives Matter at the base of the statue of Confederate general Robert E Lee in Richmond, Virginia, on 20 June. Demands have been growing for the removal of memorials to the Confederate rebellion, which are
PIC: EPA-EFE/MICHAEL REYNOLDS viewed as symbols of slavery and racism. The calls follow civil unrest after the killing of George Floyd by police in Minneapolis on 25 May. Virginia Governor Ralph Northam ordered the removal of the statue, but the order was frozen by a court injunction. Conservative groups oppose the removal of the statues gazette.ie Law Society Gazette July 2020 IN FOCUS 5 6 PEOPLE July 2020 Law Society Gazette gazette.ie FIRST EVER ‘HYBRID’ COUNCIL MEETING ALL PICS: CIAN REDMOND
The Law Society held its first-ever ‘hybrid’ Council meeting on Friday 12 June – due to the global pandemic. Observing the two-metre social distancing requirement, participants who were physically present at Blackhall Place on the day split into two groups: one attending in the Education Centre’s lecture theatre, the other in the James O’Sullivan Room downstairs. Other Council members took part via Zoom from locations around the country
Many Council members took part via Zoom Council members and director general Ken Murphy engage in pre-meeting discussions
Law Society President Michele O’Boyle addresses a rather subdued Council meeting gazette.ie Law Society Gazette July 2020 PEOPLE 7
President Michele O’Boyle Up front: Mary Keane (deputy director general), Paul Keane and Christopher Callan
Greg Ryan (right) taking safety precautions, in the presence of Liam Kennedy and Barry MacCarthy Daniel E O’Connor
Brendan J Twomey listens attentively Keeping their distance – director general Ken Murphy in conversation with Shane McCarthy, Sonia McEntee and Christopher Callan 8 NEWS July 2020 Law Society Gazette gazette.ie LAW SOCIETY WELCOMES NEW HIGH COURT PRESIDENT n The Law Society has welcomed garda compensation claims. the nomination of the new Presi- Following the retirement of Mr dent of the High Court, Ms Jus- Justice John Quirke, she chaired tice Mary Irvine – the first woman the Working Group on Medical to be appointed to this role. Negligence and Periodic Pay- Speaking after the announce- ments, established by the Presi- ment on 12 June, Law Society dent of the High Court in 2010 President Michele O’Boyle said: to examine the system within the “I welcome, in the warmest of courts for managing claims for terms, this nomination of Ms damages arising out of alleged Justice Mary Irvine, both as an medical negligence and to iden- outstandingly able judge and as tify shortcomings in that system. the first woman in history to hold On its establishment in 2014, Ms this absolutely key role in the Ms Justice Mary Irvine is the first woman to be appointed High Court president Justice Irvine was appointed a Irish judiciary. She will bring the judge of the Court of Appeal. qualities of independence, deep 1978 and the Inner Bar in 1996. served as secretary. In 2004, she In 2018, she was appointed to legal knowledge and insight that As a member of the Inner Bar, was elected a Bencher of the chair the Cervical Check Tri- have characterised her distin- she specialised in medical law King’s Inns. She was appointed bunal, established by the Gov- guished career as a judge.” and was the legal assessor to the to the High Court in 2007. ernment to hear and determine Ms Justice Irvine was born in fitness to practice committees of In the High Court, she was in claims made outside of the court Dublin and educated at the con- both the Medical Council and charge of the personal injuries process arising from acts of neg- vent of the Sacred Heart, Mount An Bord Altranais. lists from 2009 to 2014. She was ligence on the part of Cervical Anville, UCD, and the King’s Ms Justice Irvine was also also responsible for the manage- Check, as provided for in the Inns. She was called to the Bar in elected to the Bar Council and ment and determination of all CervicalCheck Tribunal Act 2019.
WOMEN IN LEADERSHIP PROGRAMME LAUNCHES PIC: SHUTTERSTOCK n The Law Society is invit- ing applications for both men- tors and mentees on a country- wide basis, and from all areas of practice, for this year’s Women in Leadership mentoring pro- gramme. The programme is presented in collaboration with Law Society Finuas Skillnet, and training is delivered by Katha- rine Slattery of Peer Mentoring Resources. The programme aims to empower and support women in advancing their careers to a senior level. ing, and it is a great way to give • Attend a training session on Apply by Friday 10 July for As a mentee, it could be that back to others in the profession. best-practice mentoring tech- a chance to be matched in this you have concerns about how to niques (October). year’s programme. progress to your next role, want What’s next? Please address any queries help to develop a new skill that • Complete an expression of Once matched, mentoring part- to Michelle Nolan, member you find difficult, or simply need interest form – available on the ners generally commit to meet- engagement manager, at lw@ some guidance through these Law Society website, ing once a month over the course lawsociety.ie. turbulent times. As a mentor, • Matching of mentors and of the programme. Mentoring Find out more on the website passing on your experience and mentees takes place in July and relationships run from October at www.lawsociety.ie/womenin knowledge can be very reward- August, and 2020 to May 2021. leadership. gazette.ie Law Society Gazette July 2020 NEWS 9 CLOUD TECHNOLOGY GIVES FIRMS THE EDGE DURING SHUTDOWN PIC: SHUTTERSTOCK n As law firms across Ireland That proved vital when the endured an unexpected lock- restrictions to stop the spread down, embracing cloud technol- of COVID-19 came into effect. ogies fast became an overnight “To the outside world and our necessity, writes Gordon Smith. clients, it was seamless business For some, it was a challenge as usual,” says Clarke. to provide a technology platform on such short notice so that their Secure access staff could keep working, partic- SureSkills has recently moved ularly to the same levels of pro- several firms, including Hayes ductivity. Those that had already and Philip Lee, to Microsoft 365, embraced cloud technology were which enables secure access to able to move quickly when the emails and documents from any restrictions came into effect. location, on any device. Leading Irish law firms have Jason McGovern (IT manager, been working with Irish and a-service’ model. Very early in las Eustace says: “In line with Philip Lee) says: “In an industry global company SureSkills to our interaction with their team, our long-term IT strategy, and where work is so time sensitive, provide them with critical IT it was clear to us that they are all working closely with SureSkills, every second counts. Having your support and deliver solutions about customer focus.” we were able to integrate this whole office as a resource you can that offer flexibility – a valued new critical production system take with you is a huge benefit of commodity in disruptive, uncer- Cost savings with our existing managed cloud remote working, and it creates tain times. Eversheds Sutherland Ireland environment. This offered us huge efficiencies for our staff.” SureSkills provides technology and Eugene F Collins were the scalability, resilience and on- SureSkills’ Mark Feldman says infrastructure, consulting, and first two firms to move to the demand performance, built on a that years of working closely training services, and has exten- SureSkills Managed Cloud Envi- consumption-based commercial with law firms have enabled the sive expertise in understanding ronment, which is built on IBM model.” company to deliver solutions that and meeting the specific needs of Cloud. Shortly before COVID-19 meet the specific requirements of the legal sector. More recently, Eversheds hit, Beauchamps had been test- the sector. “Our customers need One of their clients, adopted the Thompson Reuters ing a cloud-based desktop solu- agility – especially at a time like ByrneWallace, has been work- Elite 3E practice-management tion from SureSkills to enhance this – without compromising on ing with them for over ten years. system. Facing a potentially large its existing remote connectivity. security and confidentiality of John Kelly (head of IT) says: capital investment if it wanted to Paul Clarke (director of opera- important client documents. We “They remain consistently reli- run the entire infrastructure in- tions) says: “The key to success ensure that the solutions align able and never let us down.” house, the firm instead worked was the ability to ramp up, and with best practice, giving flex- Paul Cullen (IT manager, Dil- with SureSkills to run 3E in the down, on the SureSkills platform ibility and productivity, while lon Eustace) adds: “We chose cloud. – a service that is flexible, agile protecting valuable information SureSkills for their complete ‘as- The firm’s IT director Nicho- and reliable.” and managing risk.”
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ENDANGERED LAWYERS BRITISH DIVERGENCE STEVEN DONZIGER, USA IN DATA PROTECTION PIC: EPA-EFE/JOSE JACOME LAW ‘INEVITABLE’ DCU law lecturer Dr John Quinn continue to apply in Britain. But has stated that a divergence in while there may be initial legal data protection laws between alignment at the end of the transi- Britain and the EU is inevitable tion period, a divergence in data- following the end of the Brexit protection rules seems inevitable, transition period. since Britain will no longer be Writing in the DCU Brexit subject to decisions of the two pri- Institute 3rd Brexit Report, pub- mary harmonising EU authorities lished on 25 June, Dr Quinn on data protection – the Court of says that, following the transi- Justice of the EU and the Euro- Steven Donziger is a New York nal contempt charges against tion period, GDPR data protec- pean Data Protection Board. attorney who, in 1993, joined the Donziger. The judge referred the tion law will no longer apply in “Divergence on data protection legal team acting on behalf of case to the US Attorney’s Office Britain. principles and interpretations of indigenous people of the Ecua- for the Southern District of According to Britain’s indepen- the GDPR seems inevitable, as dorian Amazon against Chevron New York, which declined to dent Information Commissioner’s different cases are heard in the in a major environmental and prosecute. Judge Kaplan app- Office, the British Government different jurisdictions and the dif- human rights case. Donziger has ointed a private law firm, Seward intends to incorporate the GDPR ferent courts are guided by differ- been under house arrest for the & Kissel, to prosecute. He also into domestic law from the end of ent constitutional frameworks,” past 11 months on criminal-con- bypassed the random case- the transition period. However, Quinn concludes. tempt charges being prosecuted assignment process and assigned its adoption of the ‘UK GDPR’ The most likely obstruction to by a private law firm. Judge Loretta Preska to oversee will not necessitate that it will be an adequacy finding is Britain’s In a case before federal judge the prosecution. deemed ‘adequate’. Investigatory Powers Act 2016, Lewis A Kaplan, seeking the Judge Kaplan also referred The rules set out in the GDPR which allows for broad intercep- enforcement of a US$9.5 billion Donziger to the New York Bar, for the protection of personal tion and communications acquisi- judgment of the Supreme Court requesting his law license be data, the rights of data subjects, tion powers, greatly limiting the of Ecuador, serious allegations suspended on the basis of the and the principle of consent will privacy rights of individuals. of corruption were made by claim that he was an “immedi- Chevron. In 2011, Chevron filed ate threat to the public interest”. a Racketeer Influenced and Cor- Donziger’s licence was suspended I’M NOT A PHEASANT rupt Organisations Act (RICO) for 18 months until, on 24 Febru- complaint against Donziger and ary 2020, the Supreme Court of PLUCKER, BUT... two Ecuadorian attorneys, claim- the State of New York issued a ing that the judgment obtained recommendation that Donziger’s after ten years of litigation suspension should be ended. before three levels of Ecuadorian Judge Preska remanded courts was the product of fraud Donziger to home detention, and extortion. along with the seizure of his pass- The RICO litigation resulted port, and required a US$800,000 in an order requiring Donziger bond as conditions of his pre-trial to turn over his client commu- release. Judge Preska found that, nications for two decades to even though Donziger has a fam- Chevron. Donziger objected and ily and deep ties to New York, the appealed. When Judge Kaplan risk that he would flee the country nonetheless ordered the produc- required house arrest. tion of privileged information, Donziger faces a maximum Donziger refused on principle, penalty of six months’ imprison- and openly stated he was will- ment for criminal contempt, but ing to be held in civil contempt has already suffered 11 months of of court. pre-trial home detention. Tina Beattie (financial regulation manager at the Law Society) got a slightly differ- Judge Kaplan did hold him in ent perspective on remote working when a wild pheasant wandered by the win- civil contempt and, in July 2019, Alma Clissmann is a member of the dow of her home office on 15 June. “Just one of the many visitors to my Wicklow drafted extraordinary crimi- Human Rights Committee. garden,” Tina observed. You’ll go a long way to find one of those near George’s Court on your return to the work office, Tina! Hmmm... Tasty! gazette.ie Law Society Gazette July 2020 NEWS 11 CATASTROPHIC-INJURY PIONEER GIVES EXPERT NURSING OPINIONS n Nurse and midwife Siobhan with accessible accommodation, home. This type of project can McSweeney took early retire- therapy and rehabilitation pro- be difficult, even when everyone ment as assistant director of nurs- grammes, and giving ongoing involved is in the whole of their ing at Dublin’s Tallaght Hospital support to families after their health. A catastrophic injury to begin working as a case man- legal case has settled. Once complicates matters enormously, ager supporting families of loved established, the service is con- and this is where MCS comes in: ones with catastrophic injuries in tinually monitored to ensure it is “Often, families must provide Ireland, writes Mary Hallissey. cost effective. accommodation for live-in car- A pioneer of this type of ser- ers, with a separate entrance and vice nationwide, McSweeney is a Online consultations parking for staff,” McSweeney medico-legal expert witness and When McSweeney set up her explains. nursing consultant who provides service, the practice of case man- This can entail significant cost-of-care and witness-of-fact Siobhan McSweeney agement was still in its infancy in building projects and, given reports for periodic payment Ireland. Now she has a thriving that the person suffering a cata- orders. Her company, MCS Case technology for non-verbal cli- practice and a grateful clientele, strophic injury is unlikely to be Management, works with solici- ents, assistive technology, music but her business has hit a bump attending school or work, con- tors, the State Claims Agency, therapy, equine therapy, liquid in the road with COVID-19. sideration must also be given to and the office of the Wards of therapy and virtual rehabilitation Because of the travel restrictions, potential home-based services, Court. therapies, to daily ongoing care.” she has turned to online consul- such as a hydrotherapy pool, as An ‘expert nursing opinion’ McSweeney liaises with the tations in order to continue her well as therapy-treatment and identifies key issues affecting families of those with cata- work, which cannot be delayed – sensory rooms. standards of care, examines strophic injuries and complex virus or not. In one case, the planting of omissions in care provided, and needs, such as cerebral palsy, The impact of COVID cannot polytunnels (with the aid of per- gives an opinion. When pre- acquired brain injury or spinal be underestimated, she says, due sonal assistants) has provided paring cost-of-care reports, injuries. Her role is to assist to the closure of special schools. huge emotional satisfaction to McSweeney uses her expertise in families to maximise the inde- She has now completed a train- the person with the catastrophic case management to ensure that pendence and quality of life for ing course in remote consulta- injury, she says. all of the necessary costs are pro- their loved ones by sourcing and tion, and has found this useful The company’s website (www. vided for. monitoring the necessary ser- and effective in place of visiting mcscasemanagement.ie) shares “My case-management clients vices and supports. clients. information on news, therapies, have wide and varied needs,” she MCS Case Management pro- Following a financial settle- services, organisations and sup- says, “from physiotherapy, occu- vides a tailored service to fami- ment, families often have to set port groups, both nationally pational therapy, speech-and- lies – sourcing and implement- about dealing with architects and internationally. The aim is language therapy, augmentative ing nursing and personal-assis- and engineers for a new and to share this information, freely, and alternative communication tant care packages, assisting accessible purpose-built family with all affected families.
LISTEN UP! TuneTune inin toto GazetteGazette audioaudio articlesarticles atat Gazette.ieGazette.ie 12 NEWS July 2020 Law Society Gazette gazette.ie COVID-19 PAYMENT EXTENSION UNTIL 31 AUGUST GOOD NEWS FOR SMEs PIC: NOEL BENNETT/ALAMY STOCK PHOTO n On 5 June, the Temporary but had reasonable grounds for Wage Subsidy Scheme (TWSS) assuming the criteria would be was extended until the end of met, the employer should now August, writes Mary Hallissey. cease claiming the subsidy for Revenue will continue to admin- the extended scheme. ister the scheme until 31 August, Revenue will not seek to claw reimbursing employers for sub- back the subsidy paid to such sidy amounts paid to eligible employers where evidence of the employees, notified to Revenue best-estimate determination sup- via the payroll process. porting the original application Over 55,500 employers have is found to be reasonable. already received subsidy pay- If there was not a reasonable ments under TWSS. Revenue basis, the subsidy will be repay- will very shortly be contact- able to Revenue. ing these employers to confirm that the scheme is operating cor- How to stop claiming TWSS rectly and will seek certain docu- The scheme is operated by mentary evidence to establish employers entering details into that: payroll as a non-taxable amount • Employers participating in the and setting the PRSI class to J9 scheme meet the eligibility for eligible employees. criteria, Employers who no longer • Employees are receiving the wish to claim the TWSS or who, correct amount of subsidy, and following a review, did not meet • The subsidy amount is the eligibility criteria, should no being correctly identified in longer make payroll submissions employee payslips. using the J9 PRSI class. The subsidy payment rates Revenue expects that these con- ees to look up their TWSS pay- 29 February 2020, and for whom remain unchanged for the dura- tacts will confirm that the vast ments, a payroll submission was made tion of the extended scheme majority of employers are fully • Changes to the scheme to to Revenue in the period from and continue to be based on the compliant in their operation of incorporate apprentices re- 1 February to 31 March. employee’s normal net weekly the TWSS. turning to work following the When the scheme was pay for January and February completion of a SOLAS educa- announced in March, employers 2020. Revenue update tion and training programme, joined based on the principles As the lifting of public-health The main points include: • Employer compliance pro- of self-assessment and a best- restrictions continues, many sec- • An extension of the current gramme, and estimate determination about tors are beginning to reopen, with scheme until 31 August 2020, • The latest TWSS statistical a decline in turnover, customer employees returning to work. • Confirmation of the scheme’s report. orders, or any other ‘reasonable- Where a business starts to eligibility criteria for the dura- basis’ measurement. Revenue has recover from the effects of the tion of the extension, Employer eligibility advised employers that, as the end pandemic, and the employer’s • How employers can stop claim- The eligibility criteria for con- of the second quarter approaches, contribution to the employee’s ing TWSS, tinued participation in the they should review their eligibil- pay increases, TWSS payments • Tapering of subsidy payments scheme (or to now join the ity for the scheme and determine will be subject to tiering and as normal business resumes and scheme) remains unchanged, and whether they did, in fact, meet tapering. In the circumstance employers begin to increase the continues to relate to the level the eligibility criteria. where an employer pays normal amount of wages they are pay- of negative economic disruption Where, following a review, pre-COVID wages, no subsidy ing, suffered by the employer due to an employer determines that is due. • Revised tax-credit certificates COVID-19 in the period from the eligibility criteria were met, Details of the current TWSS for employees in receipt of pay- April to June. they can continue to avail of the rates and the tapering applicable ments under TWSS, The scheme remains appli- scheme for the extension period. can be found in the ‘Rates of sub- • A new facility in Revenue’s cable to employees who were If an employer decides that the sidy from 4 May 2020’ section on myAccount system for employ- on the employer’s payroll at eligibility criteria were not met, Revenue’s website. gazette.ie Law Society Gazette July 2020 Books OPINION 13 IRISH CONVEYANCING OUT NOW LAW (4TH EDITION) OUT NOW JCW Wylie and Una Woods. Bloomsbury Professional (2019), www.bloomsburyprofessional.com. OUT NOW Price: €275. Chapter 1 of this book should be mandatory reading for all lawyers, including any prac- titioner unfamiliar with property law, as it brings us right up to date on current convey- ancing practice. There have been many changes in prop- erty law and practice within the past few years. This was facilitated by multiple factors, NEW EDITION NEW EDITION including long-awaited reforms in convey- NEW EDITION The Law of Evidence ancing law and digitisation of title, coupled The Law of Evidence with compulsory first registration of all prop- NEWin Ireland EDITION By Caroline Fennell erty acquisitions. 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It is the why all conveyancers should have this book ancillary items, such as planning and property in the office. taxes, that seem to occupy most of the time of This latest edition of Irish Conveyancing Law the modern property practitioner. has been well used and referenced by me many Unfortunately, while current systems facil- times since I first read it. This publication pro- itate efficient conveyancing, practitioners are vides an invaluable resource for unravelling still left with the legacy of unregistered titles ‘tricky’ titles, and it is a ‘must buy’ for all con- in urban areas. Nobody wants to be stuck veyancers and property litigators. NEW EDITION NEW EDITION with an unregistered title that is incapable of NEW EDITION passing the forensic scrutiny of the Property Mairead Cashman is assistant law agent at Irish Income Tax 2020 By Tom Maguire Registration Authority on an application for Dublin City Council. Irish IncomeBy Tom Maguire Tax 2020 This new editionNEW is EDITION based on the Finance This new editionBy Tom is based Maguire on the Finance Act 2019, and has been updated to cover ActThisIrish 2019, new editionandIncome has is been based Taxupdated on the 2020 toFinance cover Act 2019,several and hasnew been areas updated including: to cover severalBy new Tom areas Maguire including: Key Employeeseveral new Engagement areas including: Programme Key Employee Engagement Programme This(KEEP) new and edition Emergency is based Measures on the Finance in the (KEEP)Key Employee and Emergency Engagement Measures Programme in the ActPublic 2019, Interest and has (Covid-19)been updated Act to2020, cover (KEEP)Public and Interest Emergency (Covid-19) Measures Act 2020, in the includingseveral the newTemporary areas including:Wage Subsidy. includingPublic Interest the Temporary (Covid-19) Wage Act Subsidy. 2020, Keyincluding Employee thePrice: Temporary Engagement €225 Wage Programme Subsidy. 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When in ROME... In Kellett v RCL Cruises, the Court of Appeal considered the standard of care to be applied in personal injuries proceedings taken under the Package Holidays and Travel Trade Act 1995. Neal Horgan takes a break
NEAL HORGAN IS A PRACTISING BARRISTER, SPECIALISING IN PERSONAL INJURIES AND MARITIME LAW 16 COVER STORY July 2020 Law Society Gazette gazette.ie
AT A GLANCE n The Package Holiday and Travel Trade Act 1995 provides certain rights to holidaymakers n Proceedings may be brought directly against the travel agent, rather than the foreign service provider n Proceedings may be taken in the member state where the travel agent/ organiser is established or where the plaintiff resides n But which standard of care applies – that of the holiday location or of Ireland? PIC: SHUTTERSTOCK
he Package Holidays and Travel Trade Act 1995, as amended, provides that a plaintiff who is injured while on holiday abroad has: • The right to bring proceedings directly against the travel agent, rather than against the foreign service provider, and • The right to take proceedings in the member state where the travel agent/ organiser is established or where the plaintiff is resident.
A question that frequently arises in such cases is the standard of care to be applied. Is it the standard of care that applies in the holiday location or
The author wishes to thank Darren Lehane BL for reviewing this article gazette.ie Law Society Gazette July 2020 COVER STORY 17
A PRACTITIONER SHOULD BE VERY SLOW TO BRING PROCEEDINGS UNDER THE 1995 ACT WITHOUT ENQUIRING INTO, OR RESEARCHING, THE STANDARDS OR REGULATIONS THAT APPLY IN THE PLACE WHERE THE ACCIDENT OCCURRED
the standard that applies in Ireland? Kellett The plaintiff contended that the speedboat have against the retailer or those other v RCL Cruises Ltd and Others answers this was unsafe and dangerous, and issued suppliers of services.” question. proceedings in Ireland pursuant to section In the High Court, her engineer testified 20 of the 1995 act. This states: “The that the obligation rested on the excursion Summertime blues organiser shall be liable to the consumer for operator to ensure that the boat was safe for The plaintiff was on a cruise holiday and the proper performance of the obligations the vigorous manoeuvres that had led to the injured her arm while participating in a under the contract, irrespective of whether injury. He also gave evidence in relation to speedboat excursion – the ‘White Knuckle such obligations are to be performed by the the lack of safety measures. In particular, Jet Boat Thrill Ride’ – while the cruise organiser, the retailer, or other suppliers of he was critical of the actions of the skipper ship was docked at St Maarten in the services, but this shall not affect any remedy in moving the plaintiff after she had been Caribbean. or right of action which the organiser may thrown from her seat during the first 18 COVER STORY July 2020 Law Society Gazette gazette.ie
manoeuvre, which had not caused clearly established by those cases is that the satisfied that, even if one were to apply the injuries. standard by which the acts in question are to standards which may be thought applicable in However, under cross-examination, he be judged is that of reasonable skill and care, this jurisdiction, one could still not find that stated that he was unaware of the Irish which standard, if not expressed in a contract, the White Knuckle Jet Boat Thrill Ride was regulations, or the local regulation or will be readily implied into it.” provided without reasonable skill and care as standards applicable in St Maarten for such required by the Scaife judgment.” boat trips. He also stated that he was unable to Holidays in the sun Barr J concluded that the plaintiff had not offer any evidence of the safety measures that Barr J then reviewed a number of British and established any negligence on the part of the should have been in place on any similar boat Northern Irish cases, namely Wilson v Best defendants, or any liability under the 1995 anywhere in the world, with the exception that Travel Limited (1993), Gouldbourn v Balkan act, and thereby dismissed the claim. he had once been on a boat on the Thames Holidays Limited (2010), and Kerr v Thomas that had a side rail. Cook Tour Operations (2015). He stated: “If The passenger it is established that the service provider The plaintiff appealed the decision. The Court he defendants did not provide any complied with all relevant local regulations of Appeal (Noonan, Haughton, and Collins JJ) evidence in relation to liability, and and standards, they and the organiser will not dismissed the appeal. The leading judgment relied upon the failure of the plaintiff be liable in negligence or breach of contract was delivered by Noonan J. toT adduce evidence in relation to local to the consumer, unless it can be shown that Noonan J held that Barr J had applied the regulations or standards in St Maarten. such local standards were patently deficient, correct test and set out a number of principles In the High Court, Barr J stated that the or were not in conformity with uniformly that – given their significance for future cases leading case was the decision of the Supreme applicable regulation.” – are worth setting out in full: Court in Scaife v Falcon Leisure Group (2007). Barr J criticised the failure of the plaintiff’s ‘‘ a) In claims pursuant to section 20 of the In Scaife, the plaintiff slipped and fell in engineer to point to any standards or 1995 act, the appropriate test is whether a Spanish hotel restaurant while on holiday. regulations in St Maarten or Ireland, or indeed reasonable skill and care have been The key issue was whether negligence had to elsewhere, that would have mandated the use employed in the provision of the service be determined by reference to local standards of the safety features he proposed. He held complained of. or Irish standards. Macken J had reviewed that the onus of proof rested on the plaintiff b) The standard by which the test of the relevant case law and stated: “The to establish that the service provider did not reasonable skill and care is to be judged conclusions to be drawn from all of the above provide the service in accordance with local is the standard, as distinct from the law, cited cases are that, both before and after regulations or standards, or in accordance applying in the place where the event the coming info force of the directive and its with internationally recognised standards. He complained of occurs. The issue of liability transposition in national law, the established held that the plaintiff had not established what is to be determined by reference to Irish principle is that the organiser is not an insurer the local standards were, and whether there law. to the customer. The learned High Court was a failure to comply with such standards. c) If there are internationally recognised judge correctly found that the hotel proprietor Having identified this evidential deficit, norms applicable to the facts of the case, was not such an insurer under the legislation. Barr J proceeded to consider the case as if the court is entitled to have regard to these The above cases also establish the principle Irish standards applied: “In the circumstances, in its assessment of whether reasonable that the test is not one of strict liability and, it is not necessary for me to determine skill and care have been used. in that regard, I am satisfied that the High whether the plaintiff could establish liability d) Per Scaife, there may be cases where the Court’s finding, when correctly read, was not in the absence of any evidence as to the court can have regard to the standards that strict liability applied. The final principle applicable standards in St Maarten. I am prescribed in Irish legislation, such as the
THE ONUS OF PROOF RESTED ON THE PLAINTIFF TO ESTABLISH THAT THE SERVICE PROVIDER DID NOT PROVIDE THE SERVICE IN ACCORDANCE WITH LOCAL REGULATIONS OR STANDARDS, OR IN ACCORDANCE WITH INTERNATIONALLY RECOGNISED STANDARDS gazette.ie Law Society Gazette July 2020 COVER STORY 19
‘What's new, pussycat? Oh-oh-aarrgh!’ Hotel Proprietors Act 1963 and the Occupiers j) The parties may, of course, expressly or at least to contest compliance with local Liability Act 1995, in determining whether contract for the provision of a service to standards asserted by a tour organiser as a there has been compliance with the a particular standard, as the trial judge defence, or alternatively, in order to criticise directive and the 1995 act. pointed out.” such standards or the manner in which e) It will not necessarily be a defence to a they are applied or policed locally as being claim to show that local regulations were ollins and Haughton JJ expressed inadequate: they would, as has been observed, complied with, if such are recognised some hesitancy in respect of fail to do so at their peril.” locally as inadequate, or are so patently Noonan J’s principle (b). In separate deficient that any reasonable person would judgments,C they stated that, in other factual view them as obviously inadequate; circumstances, they would have sought conversely, there may be a requirement to a preliminary ruling from the CJEU on LOOK IT UP comply with local standards that are higher whether, to the extent that local regulations/ CASES: than those obtaining in this jurisdiction. standards are relevant, the onus of proving n Gouldbourn v Balkan Holidays f) The tour operator is not to be regarded as an such regulations/standards should fall on the Limited and Anor [2010] EWCA Civ insurer. holidaymaker or on the organiser/retailer. 372 g) The onus of proving that the relevant n Kellett v RCL Cruises Ltd and Others service has been provided without On the road again [2019] IEHC 408 reasonable skill and care rests upon the Given the enormous number of Irish n Kellett v RCL Cruises Ltd and Others plaintiff and, accordingly, it is for the holidaymakers who travel abroad each year, [2020] IECA 138 plaintiff to establish that any relevant this case is hugely significant. The decision n Kerr v Thomas Cook Tour Operations standard has not been complied with. makes clear that a practitioner should be very Limited [2015] NIQB 9 h) It will normally be difficult for the court to slow to bring proceedings under the 1995 n Scaife v Falcon Leisure Group make an assessment of whether reasonable act without enquiring into or researching the (Overseas) Ltd [2007] IESC 57; [2008] skill and care has been used in the provision standards or regulations that apply in the place 2 IR 359 of the service, absent evidence of relevant where the accident occurred. n Wilson v Best Travel Limited [1993] local standards, as distinct from Irish At the conclusion of his judgment, 1 All ER 353 standards, subject to (d) above. Haughton J provides useful advice on the i) The court should not be overly prescriptive best approach that should be adopted by a LEGISLATION: as to how compliance with local standards prospective plaintiff’s legal team: “As matters n Council Directive 90/314/EEC on is to be proved. It is not necessarily the case stand, before pursuing a claim, plaintiffs package travel, package holidays and that such proof can only be provided by a and their lawyers and experts would be package tours locally qualified expert, subject always to well advised to research holiday destination n Package Holidays and Travel Trade the rules of evidence and the relative weight standards/regulations, in order to be prepared Act 1995 to be attached to non-expert evidence, and to establish breach of such local standards, 20 DISCRIMINATION July 2020 Law Society Gazette gazette.ie
RACE TO THE FRONT
EMPLOYERS HAVE A POWERFUL TOOL TO PUSH BACK AGAINST RACISM BEING IMPOSED ON THEM BY CUSTOMERS, CLIENTS, THIRD PARTIES
PIC: SHUTTERSTOCK OR ANY OUTSIDE AGENTS – THE EMPLOYER OR SERVICE PROVIDER THEMSELVES WILL BE HELD DIRECTLY LIABLE FOR RACE DISCRIMINATION gazette.ie Law Society Gazette July 2020 DISCRIMINATION 21
AT A GLANCE n Lawyers will have an increased requirement to be aware of Irish law on the prohibition of discrimination on grounds of race n The Employment Equality Act prohibits discrimination under nine grounds, one of which is race, and the Equal Status Act prohibits such discrimination in the access to goods and the provision of services, including housing and education n The EU Race Directive gives strong protection against discrimination, including that imposed because of third-party concerns.
The Employment Equality and Equal Status Acts provide protections from racial discrimination to employees and to non- employees who are accessing goods and services, and place obligations on employers and service providers. Katherine McVeigh and Cliona Kimber refuse to sit at the back
KATHERINE MCVEIGH IS A PRACTISING BARRISTER, SPECIALISING IN LABOUR AND EMPLOYMENT LAW. CLIONA KIMBER SC SPECIALISES IN EMPLOYMENT AND EQUALITY LAW AND IS CO-AUTHOR OF EMPLOYMENT EQUALITY LAW
he issue of racism is highly topical now. The Workplace Relations Commission (WRC) 2019 annual report recently noted that discrimination on grounds of race under the Equal Status Acts 2000- 2018 is still the most frequent complaint submitted of the nine discriminatory grounds. The number of overall complaints submitted under these acts decreased by 25% in 2019 compared with 2018. This raises a question about the level of awareness in Irish society of the panoply of rights for those discriminated against, and also for those wishing to oppose racism practised by others. Accordingly, the WRC has pledged to commence a 2020 awareness- raising campaign. As practitioners will be aware, Irish law is interpreted in line with EU law. This creates a level playing field across member states. The Employment Equality Acts 1998-2015 (EEA) and the Equal Status Acts 2000-2018 (ESA) are to be understood against the backdrop of the EU Race Directive. 22 DISCRIMINATION July 2020 Law Society Gazette gazette.ie
THE EMPLOYER COULD SIMPLY REMIND THE CUSTOMER OR CLIENT THAT THIS IS A CRIMINAL OFFENCE IN WHICH THE EMPLOYER DOES NOT WANT TO BE COMPLICIT ... FAILING TO STAND UP TO RACIST PRACTICES OF CUSTOMERS MAY COST A COMPANY DEARLY
The directive (2000/43/EC) is not a tool to push back against racism being ‘ethnic’ – which it held was associated with complete body of rights and contains basic imposed on them by customers, clients, third a cultural and historical background – was prohibitions on discrimination on grounds parties or any outside agents – the employer wider than ‘racial’ (which constituted a of race or ethnic origin. It has since been or service provider themselves will be held biological element). The Labour Court, interpreted by the CJEU to give strong directly liable for race discrimination. in Dublin Institute of Technology v Awojuola protection against discrimination, including It is important to be cognisant of this (EDA 35/2013), adopted the definition that imposed because of third-party responsibility. set out in Mandla and held that persons concerns. of the European Union did not have the Meaning of ‘race’ characteristics of a racial group. he 2008 ECJ case of Firma Feryn NV It is extremely important to be aware that the (Case C–54/07) arose from the refusal reach of Irish law is significantly broader than Discrimination in Irish law of a company in the Netherlands the Race Directive. The directive expressly The Employment Equality Act prohibits specialisingT in garage-door installation to provides that it does not cover “difference of discrimination under nine grounds, employ persons of ethnic origin. When treatment based on nationality”, and this is one of which is race. Employers may challenged, the company stated that their expressly covered in Irish law. not discriminate against employees or policy was due to their customers’ reluctance The directive does not attempt to define potential employees with regard to access to give such employees access to their ‘race’, ‘colour’ or ‘ethnic origins’, and leaves to employment, conditions of employment, homes. The court rejected the argument it up to member states to define these terms. work experience, and promotion. It is of the company and held that their actions As such, the Labour Court has frequently perhaps less well-known that the EEA also constituted direct discrimination in relation adopted the definition of race from British prohibits: to recruitment under the directive. case law. • Discrimination in collective agreements What employers and service providers can In Mandla (Sewa Singh) v Dowell Lee with regard to access to and conditions of learn from this is that there is a powerful (1983), the House of Lords held that employment and equal pay for like work, • Discriminatory advertising, • Discrimination by employment agencies, • Discrimination in the provision of vocational training, and • Discrimination by trade unions, professional, and trade associations as regards membership and other benefits.
The Equal Status Act prohibits such discrimination in the access to goods and the provision of services, including housing and education. The ESA prohibits discrimination in the provision of accommodation services against people who are in receipt of rent supplement, housing assistance, or social-welfare payments. Discriminatory advertising is also prohibited. gazette.ie Law Society Gazette July 2020 DISCRIMINATION 23 PIC: ALAMY.COM
Both acts provide that discrimination on grounds of race occurs where, as between two persons, the discriminatory grounds THE HOUSE OF LORDS HELD are “that they are of different race, colour, nationality or ethnic or national origins” THAT ‘ETHNIC’ – WHICH IT (section 6(2)(h) of the EEA; section 3(2)(h) of the ESA). HELD WAS ASSOCIATED
iscrimination has a specific WITH A CULTURAL AND meaning in equality law. The definition of discrimination focuses HISTORICAL BACKGROUND onD whether a person has been treated less favourably in the workplace than another – WAS WIDER THAN ‘RACIAL’ person in a similar situation on any of the nine grounds, including race. (WHICH CONSTITUTED A Discrimination can be direct or indirect. While direct discrimination is often more BIOLOGICAL ELEMENT) obvious, indirect discrimination has a negative impact on employers or persons contracts of employment and policies in The burden on a respondent to objectively accessing goods and services. Indirect English only, rather than in a language justify such treatment is onerous. In A (on discrimination may occur if an organisation’s that is understandable to all employees behalf of her daughter B) v A Girls Secondary policy or practice, which is applied to (Complainants v Goode Concrete Ltd). School, the Equality Tribunal, as it then all persons, has the effect of putting an was, stressed the importance of providing employee or someone attempting to avail Objective justification evidence of objective justification. Although of a good or service at a disadvantage If a complainant satisfies a prima facie the respondent succeeded in convincing the because of their race or ethnic origin. case of discrimination, the burden shifts tribunal that their policies were legitimate, For example, if an employer requests to a respondent to demonstrate that the it failed to provide evidence demonstrating three references from Irish employers, discrimination is objectively justified by necessity. this could indirectly discriminate against a legitimate aim, and that the means of Although burdensome, objective an immigrant (Czerski v Ice Group). Or if achieving that aim were appropriate and justification is not an impossible task. In employers furnish documentation, including necessary. Turner v Basketball Ireland, a professional MORAN & RYAN LLP
CaoINVITATIONimhe Connol ly
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While legal practitioners on grounds of race within the league. disposal of goods and provision of services. will be familiar with prohibitions on overt The WRC found that, although the The case arose from a decision of the racism, they can advise their clients on complainant had established a prima facie Legal Aid Board to refuse the appellant a the issues they may be less familiar with case of discrimination on grounds of race, legal-aid certificate. Mr Justice Simons, in regarding obligations on employers and the respondent had objectively justified the dismissing the appeal, applied the following service providers. difference in such treatment. The WRC test: “The question for determination upon Employers and service providers might fail held that the ESA allows for differences a claim of racial discrimination – as opposed to appreciate the risk of liability for attempts in the treatment of persons based on to, for example, an application for judicial by third parties and ‘rogue’ employees to nationality that are “reasonably necessary, review – is not whether the procedure engage in racism unless they have good having regard to the nature of the facility or … is subjectively fair, but rather whether policies and training in place. As the CJEU event and are relevant to the purpose of the the procedure applied to [the appellant] has made clear, failing to stand up to racist facility or event”. differed from the approach applied to other practices of customers may cost a company complainants generally.” dearly. Vicarious liability With the increased spotlight on race The EEA makes an employer liable for acts he court held that the appellant discrimination, legal practitioners will carried out by a person in the course of had “misunderstood the concept have an increased requirement to be employment, whether or not an employer of a comparator” under the ESA, aware of Irish law on the prohibition of knew or consented (section 15). This andT held that “the correct comparison is discrimination on grounds of race. includes acts by a person acting as agent not as between the complainant and the for another person with express or implied person providing the service, but rather as authority. between the complainant and another service Employers can defend such claims if recipient”. Crucially, the judge held that it is demonstrated that steps were taken section 5 is “not a stand-alone provision” and LOOK IT UP as reasonably practicable to prevent the “must be read in conjunction with section 3 CASES: employee from doing the act in question or (general discrimination) and/or section 4 n A (on behalf of her daughter from doing it in the course of employment. (discrimination on disability grounds)”. B) v A Girls Secondary School Employers should have policies and In Asylum Seeker v Statutory Body (January (DEC-S/2015/001) practices in place prohibiting race 2020), the WRC found that the complainant n Asylum Seeker v Statutory Body discrimination, emphasise to the workforce was indirectly discriminated against on (ADJ-00020743; 28 January 2020) that it will not be tolerated, and have an grounds of race during her application for n Complainants v Goode Concrete effective complaints mechanism. Dublin Bus a learner driver permit. The complainant, Ltd (DEC-2008-020) v Camley demonstrates how best practices of an asylum seeker, had been refused the n Czerski v Ice Group Business an employer allowed them to defend against permit due to the lack of valid evidence of Services Limited (DEC-E/2006/027; the rogue employee’s actions in insulting residency entitlement. The WRC made [2010] ELR 8) another worker on social media. various stringent orders, including that the n Dublin Bus v Camley (EDA164; respondent must “immediately amend the Labour Court, 18 February 2016) Service-provider duties 2018 guidelines”. n Firma Feryn NV (Case C–54/07) Similar to the EEA, the ESA provides that n Irish Human Rights Commission v procurement of discrimination is an offence Criminal offence DAFT (ADJ-00005960; 6 August (section 13) and that service providers are It is worth noting that it is a criminal 2019) prohibited from publishing or displaying offence for a person to procure or attempt to n Mandla (Sewa Singh) v Dowell Lee discriminatory advertisements (section 12). procure another person to do anything that [1983] 2 AC 548 Section 42 of the ESA (also at section 15 constitutes discrimination or victimisation n Smith v Office of the Ombudsman of the EEA) relates to vicarious liability, and (section 13 of ESA). While there have been and Ors [2020] IEHC 51 was examined in 2019 in Irish Human Rights no cases to date that we are aware of, this n Turner v Basketball Ireland (DEC- Commission v DAFT. The respondent’s provision should not be overlooked in the 2014-029) defence that it was a “mere conduit” and heightened awareness of current times. not the author of an online advertisement Indeed, the provision could, in fact, assist an LEGISLATION was rejected by the WRC. The respondent employer put under pressure by a customer n Council Directive 2000/43/EC was held vicariously liable for the content or client to send only ‘national’ workers – of 29 June 2000 implementing on its online platform and was ordered to as in the Firma Freyn case. The employer the principle of equal treatment cease publishing and develop a process to could simply remind the customer or client between persons irrespective of identify, monitor and block discriminatory that this is a criminal offence in which the racial or ethnic origin advertising on its website. employer does not want to be complicit. n Employment Equality Acts 1998- The significant recent decision by There are a range of legal protections 2015 the High Court in Smith v Office of the afforded to both employees and non- n Equal Status Acts 2000-2018 Ombudsman centred on section 5 of the employees to prevent discrimination on 26 LANDLORD AND TENANT July 2020 Law Society Gazette gazette.ie
Addressing the fixed cost of rent will be key for many commercial tenants as they move to trade out of the crisis caused by the COVID pandemic. It’s the lease that can be done, says Alan O’Connor
ALAN O’CONNOR IS A PRACTISING BARRISTER DOWN- PAYMENT BLUES
he COVID crisis has had an unprecedented impact on the Irish economy, large sections of which were effectively put on ice by restrictions imposed to protect public health. Although unable to trade, rent will have continued to fall due for many affected businesses. As Ireland reopens, many businesses will be weighed
TAT A GLANCE n With market rents expected to fall in the wake of the pandemic, market-linked rent-review clauses may prove a useful tool for some tenants to cut their rent liability n The principles for determining rent and the procedure for carrying out the review are governed by the lease n Apart from the law affecting upwards-only clauses, the operation of commercial rent-review clauses is a matter of contract, so each lease must be considered individually gazette.ie Law Society Gazette July 2020 LANDLORD AND TENANT 27 PIC: SHUTTERSTOCK 28 LANDLORD AND TENANT July 2020 Law Society Gazette gazette.ie
down by arrears of rent accrued during the longer period than a landlord might agree as While the instincts of many landlords lockdown, and by rents that are disconnected an abatement. and tenants may be to put in place informal from the profitability of premises with However, there are limitations to relying arrangements to maximise flexibility and reduced capacity, due to social-distancing on rent-review provisions to seek a rent minimise the costs involved with formal rules. reduction. Many new leases only allow a rent agreements being drawn up, the experience review to be triggered by the landlord. Often, in the years following the financial crisis Back in business such clauses were inserted precisely to stop shows that informal arrangements can cause With market rents expected to fall in the wake a tenant from benefiting from a downwards headaches down the line for landlords and of the pandemic, market-linked rent-review review in the event of a market slump. If tenants, as such arrangements often lack clauses may prove a useful tool for some such a clause is present, the tenant will not be certainty as to their enforceability, duration tenants to cut their rent liability. This option able to benefit from a review, unless they can and precise terms. was not available for most tenants during the convince the landlord to trigger one. When putting in place such an arrange- last financial crisis, as most leases included ment, care should therefore be taken to ensure ratcheted ‘upwards-only’ rent-review clauses. further difficulty lies with the that any agreement is legally enforceable and However, since the commencement of rigidity of rent-review clauses, which is clear in its effect from beginning to end. section 132 of the Land and Conveyancing Law typically can only be triggered at Reform Act 2009 on 28 February 2010, any specificA dates (although, normally, time is not Money talks rent-review clause in a new lease must allow of the essence, so a review can be triggered The primary requirements for an enforceable for downward reviews. It is important to after the review date – see Hynes Ltd v agreement to vary the rent payable by a tenant note that section 132 does not apply to leases Independent Newspapers). Normally, the new are the same as those for any enforceable executed on foot of agreements for lease rent is to be measured by reference to market contract – capacity, offer, acceptance, entered into before 28 February 2010. rent on the specified review date, so if that intention to create legal relations, and As the in-built mechanism for varying date occurred before the crisis, the tenant may consideration. To the extent that such an the amount of rent payable under a lease, not benefit from triggering a review. agreement constitutes a variation of a lease, rent-review clauses have several advantages Apart from the law affecting upwards- section 51 of the Land and Conveyancing over ad hoc arrangements. The principles only clauses, the operation of commercial Law Reform Act 2009 also requires that the for determining rent, and the procedure for rent-review clauses is a matter of contract, so agreement be evidenced in writing. carrying out the review, are governed by each lease must be considered individually, Consideration poses a difficulty for rent- the lease. So, if a review can be triggered, and valuation advice sought, to determine abatement agreements, as the rule in Pinnel’s the tenant will not have to hope for their whether a tenant can benefit from seeking a Case will normally prevent the commitment landlord’s beneficence to obtain a reduction, rent review. to pay a reduced rent from being treated as and the level of rent set will not depend on Outside of rent-review provisions, the consideration for the reduction, as in Barge the parties’ respective bargaining power. parties to a lease may agree to vary rent Inn v Quinn Hospitality (2013). In order to Leases typically provide for rent to be set by obligations to ease the financial pressure on be effective, such agreements should contain arbitration or expert determination in default a tenant. Such arrangements have the benefit a clear collateral advantage for the landlord of agreement. An added advantage is that the of flexibility, as the parties can tailor the (such as the tenant giving up rights or taking rent set on review will be payable until the terms to the particular commercial on an additional obligation – as in Westpark next review date (most often in five years’ circumstances facing them – but doing Investments v Leisureworld (2012), where the time) – potentially locking in a low rent for a so requires agreement. tenant gave up rights to parking spaces) to
FOR OLDER LEASES CONTAINING UPWARDS- ONLY REVIEW CLAUSES, CONSIDERATION SHOULD BE GIVEN AS TO WHETHER THE UPWARDS-ONLY PROVISION IS TIED TO THE AMOUNT SET AT THE PREVIOUS REVIEW OR THE AMOUNT PAYABLE IMMEDIATELY PRIOR TO THE REVIEW DATE gazette.ie Law Society Gazette July 2020 LANDLORD AND TENANT 29 constitute consideration for the reduction in Any agreement lasting until the next rent- rent, or be executed under seal to dispense with review date should cover how the agreement the need for consideration. Where a collateral will affect the next rent review – will the next advantage is being relied on as constituting review happen as normal, or will the new consideration for the rent reduction, it should arrangement take its place? If the latter, what appear on the face of the agreement – a about the review after that? tenant cannot normally rely on something not mentioned as constituting consideration: see or older leases containing upwards- Harrahill v Swaine (2015). only review clauses, consideration In relation to the requirement for writing, should be given as to whether the a concluded agreement for a rent abatement Fupwards-only provision is tied to the amount that has not been evidenced in writing may set at the previous review or the amount still be enforceable if it is supported by part payable immediately prior to the review date. performance. However, rent-abatement If the latter, the landlord should consider agreements may face particular practical ending the abatement shortly before the next difficulties in showing sufficient part review date to ensure a higher floor for the performance, unless the agreement requires next rent review. significant acts on the part of the tenant as If the payment of rent or any other tenant consideration for the rent reduction. obligation is guaranteed by a third party, Such effects can last long after the the landlord should take care to ensure n the absence of consideration or an representations on foot of which they arise, that any allowance given to the tenant agreement under seal, a tenant may be especially where they resulted in a significant will not prejudice the enforceability of the able to fall back on promissory estoppel change of position by the other party. Tenants guarantee. If the obligations of a tenant are whereI they have relied upon a clear will take note of Laffoy J’s comments on the varied without the consent of the guarantor, representation by the landlord in relation to difficulty of determining how the doctrine in a manner that could possibly be to the rent. While there is insufficient space in this applies in the various circumstances that detriment of the guarantor, the guarantee article to consider the principles of promissory arise and that, in the absence of a significant will be discharged. While a simple reduction estoppel in detail, they are helpfully change of position, a concession made by in the amount of rent that the tenant has to summarised by Laffoy J in the Barge Inn case way of a representation can be withdrawn pay is unlikely to discharge the guarantee, as “(a) the pre-existing legal relationship by reasonable notice. These factors should other changes, such as deferring the tenant’s between the parties; (b) an unambiguous encourage parties to formalise their liability, may release the guarantor, unless representation; (c) reliance by the promisee arrangements. the guarantor consents to the change, either (and possible detriment); (d) some element of expressly or implicitly – for example, by his unfairness and unconscionability; (e) that the Beating around the bush involvement in bringing about the variation estoppel is being used not as a cause of action, Clear drafting is key to avoiding uncertainty (see Danske Bank v McFadden). The most but as a defence; and (f) that the remedy is a in future. There are many ways a rent straightforward way to avoid this risk is matter for the court.” abatement can be structured, but there to have the guarantor co-sign the written are some matters that any rent variation agreement or to expressly consent to the Shake your foundations agreement should cover. variation in writing. In the Barge Inn case, the tenant had invested First, how the obligation to pay rent is money, time, and effort in a licensed premises, being altered should be clearly described. in reliance on a representation that a rent How much will the tenant be obliged to pay? reduction would continue while the tenant’s Is it to be a reduction in rent payable, writing- LOOK IT UP business was affected by the prevailing off of arrears, or a deferred due date for rent? CASES: economic circumstances. Laffoy J determined The duration of the arrangement, and n Barge Inn v Quinn Hospitality [2013] that the equities in the case required the the date for resumption of normal rent (or IEHC 387 landlord to be restrained from withdrawing the payment of deferred rent), should also be n Danske Bank A/S t/a National Irish rent abatement while the business continued to certain. Tying an abatement to economic Bank v McFadden [2010] IEHC 116 be adversely affected by prevailing economic conditions is best avoided, as the inherent n Harrahill v Swaine [2015] IECA 36 circumstances in the same manner as when the uncertainty may lead to future disputes. If a n Hynes Ltd v Independent abatement was granted. fixed date is set, another abatement can always Newspapers [1980] IR 204 The Barge Inn case should be viewed as a be agreed if economic difficulties persist, but n Westpark Investments v Leisureworld cautionary tale by both landlords and tenants. at least the parties will know where they stand. [2012] IEHC 343 It illustrates how informal rent-abatement Alternatively, restructuring the rent provision arrangements may give rise to significant to link rent to tenant turnover or another LEGISLATION: uncertainty, both as to whether the parties’ performance metric can retain certainty, while n Land and Conveyancing Law Reform legal obligations have been varied, and to allowing for a gradual uplift in rent as the Act 2009 what extent. tenant’s business recovers. 30 CONVEYANCING July 2020 Law Society Gazette gazette.ie
AT A GLANCE n In order to affect registered land, a burden capable of registration under section 69 of the Registration of Title Act 1964 must be registered on the folio n The burdens capable of being registered under section 69 include any charge on the land duly created after the first registration of the land n The other group of burdens (known as overriding interests) that affect registered land are what are commonly known as section 72 burdens – these are not capable of registration on the folio
How does the charge on property created by the Local Government (Charges) Act affect a purchaser for valuable consideration of registered land? Joe Thomas and Ruth Cannon report from the front lines
JOE THOMAS IS A SOLICITOR AND A MEMBER OF THE CONVEYANCING COMMITTEE. RUTH CANNON IS A PRACTISING BARRISTER
he Local Government (Charges) Act 2009, as amended, provided the legislative basis for the non-principal private residence (NPPR) charge. The NPPR charge applied in the years 2009 to 2013 to any residential property that was not the sole or principal place of residence of its owner. The act imposed an obligation on ‘the owner’ (on the liability dates of 31 July 2009 and 31 March 2010 to 2013 inclusive) of an NPPR to pay a charge of €200 to the local authority in which the NPPR was located. The act (section 6) further imposed a penal late payment fee of €20 per month in respect of non-payment of the charge. HEAVY BURDEN gazette.ie Law Society Gazette July 2020 CONVEYANCING 31 PIC: SHUTTERSTOCK
IN CIRCUMSTANCES WHERE THE VENDOR CLAIMED THAT THE CHARGE DID NOT APPLY, SOLICITORS WERE ADVISED TO SEEK SUCH CONFIRMATION BY WAY OF STATUTORY DECLARATION OF THE VENDOR 32 CONVEYANCING July 2020 Law Society Gazette gazette.ie
Section 7 provided that any charge or late 2012, it was not possible to obtain a certificate that were exempt, but the necessary evidence payment fee due, and unpaid by the owner of exemption in respect of the property for any was/is simply not available, and a purchaser’s of an NPPR, be a charge on the property liability date. solicitor is concerned – since, if there was a to which it related. Section 8 provided that This resulted in the Conveyancing liability and it was not discharged, it is stated local authorities issue certificates of the Committee issuing a further practice note to be a charge on the property. Given that amount paid, which a vendor of an NPPR on 6 April 2018. This practice note advised local authorities have no information as to could provide to a purchaser as evidence the profession that, where there had been a whether or not a residential property was that there was no charge as prescribed in sale of a property in the years 2009 to 2011 someone’s sole or principal residence on the section 7 affecting the NPPR. inclusive, and the then vendor had furnished liability dates 2009 to 2013 inclusive, the On 28 August 2009, the Law Society’s a statutory declaration that the property reality is that the solicitors’ profession has Conveyancing Committee issued a practice was his sole or main residence and was, policed and enforced the legislation. note advising that, on the purchase of an accordingly, exempt from the charge, that, Difficulties for solicitors have been NPPR, solicitors should seek a receipt for absent any reason to doubt the validity of the exacerbated by disparities in the requirements payment of the charge and/or a letter of vendor’s declaration, a purchaser should be of different local authorities on applications discharge of the charge. In circumstances entitled to rely on this declaration and to seek for certificates of exemption. Some local where the vendor claimed that the charge a certificate of exemption or discharge, as authorities will accept a copy folio showing did not apply, solicitors were advised to appropriate, in respect of the liability ownership covering the requisite liability seek such confirmation by way of statutory dates from the last sale. dates, together with an affidavit from an declaration of the vendor. The 2009 act owner stating that the property was his sole did not make any provision for the issuing nfortunately, in very many instances of or principal residence. Others require, in of certificates in circumstances where the a sale of a residential property in the addition, evidence such as utility bills, which property was not an NPPR. years 2009, 2010 and 2011 that was are now some 11 years old. exemptU from the charge by reason of being the Amendment vendor’s sole or main residence, no statutory Registered land Section 8 of the 2009 act was amended by declaration confirming the position was A question arises as to how the charge the provisions of section 19 of the Local furnished on the closing of the sale. Solicitors on property created by section 7 of the Government (Household Charge) Act 2011 by for vendors of properties that were acquired 2009 act affects a purchaser for valuable the insertion of section 8A(4) into the 2009 in the years 2009 to 2011 inclusive continue consideration of registered land? act. This amendment provided that, with to have to go back to the solicitor, who acted There are two groups of burdens that effect from 1 January 2012, a vendor of a for the vendor to their client, to see if either a may affect registered land. Section 69 of residential property furnish on or before statutory declaration confirming the position or the Registration of Title Act 1964 lists the completion of a sale to a purchaser (a) a a certificate of exemption can be obtained. This matters that may be certificate of discharge or (b) a certificate is often simply not possible, as the vendor who registered as burdens of exemption, as appropriate, in respect sold the property in 2009, 2010 or 2011 may be on registered land. of each year in which a liability date deceased, may have emigrated, or may simply Importantly, in order fell since the date of the last sale of the be unwilling to cooperate. to affect registered land property. This change caused considerable Many solicitors have, consequently, paid the on a sale for valuable confusion for solicitors in circumstances charge and the late payment fee of up to €7,230 consideration, a burden where properties were acquired in the years out of their own pockets. This payment is, in capable of registration 2009, 2010 and 2011 as, prior to 1 January many instances, made in respect of properties under section 69 must,
SOLICITORS FOR VENDORS OF PROPERTIES THAT WERE ACQUIRED IN THE YEARS 2009 TO 2011 CONTINUE TO HAVE TO GO BACK TO THE SOLICITOR, WHO ACTED FOR THE VENDOR TO THEIR CLIENT, TO SEE IF EITHER A STATUTORY DECLARATION CONFIRMING THE POSITION OR A CERTIFICATE OF EXEMPTION CAN BE OBTAINED gazette.ie Law Society Gazette July 2020 CONVEYANCING 33 in fact, be registered on the folio. The burdens capable of being registered under section 69 include, in section 69(1)(b), any charge on the land duly created after the first registration of the land. The other group of burdens that affect registered land are what are commonly known as section 72 burdens. These burdens, known as overriding interests, are set out in section THERE IS NO PROVISION 72 of the 1964 act and affect registered land without registration. Section 72 burdens are IN THE 2009 ACT STATING not capable of registration on the folio. THAT THE CHARGE nsofar as section 69 burdens are concerned, the 2012 case of Roche v CREATED THEREBY IS AN Leacy is illustrative. In this case, Laffoy JI looked at the effect on a sale of registered OVERRIDING INTEREST land for valuable consideration of a lis pendens. A lis pendens is a burden capable of be subject to all unregistered rights subject relation to dealings with registered land. registration under section 69. In this case, to which the transferor had held the lands The only form of notice recognised is by the lis pendens was registered in the central transferred.” entry on the register.” office of the High Court, but was not, in Section 72 lists the burdens to which fact, registered on the folio. registered land is subject without Argument to be made Laffoy J quoted section 52 of the 1964 act: registration. This includes, in section The 2009 act falls to be read in conjunction “1) On the registration of a transferee of 72(1)(a), estate duty and succession duty. with the well-established provisions of the freehold land as full owner with an absolute Importantly, in the context of NPPR, the Registration of Title Act 1964 set out above, title, the instrument of transfer shall category of burdens that affect registered which specifically provide that a purchaser operate as a conveyance by deed within the land without registration was expanded to takes free of any interests other than meaning of the Conveyancing Acts, and include taxes such as gift tax, inheritance overriding interests, even if they have actual there shall be vested in the registered tax and, at a later date, farm tax. In contrast notice of them. There is no provision in the transferee an estate in fee simple in the land to these other statutory provisions, there is 2009 act, as amended, stating that the charge transferred, together with all implied or no specific statement in section 72 that the created thereby is an overriding interest. Such express rights, privileges and appurtenances NPPR charge is an overriding interest for charge would appear to be an interest capable belonging or appurtenant thereto, subject the purposes of section 72. of being registered under section 69, which, in to (a) the burdens, if any, registered as order to affect the land, must be registered. affecting the land, and (b) the burdens to ection 31(1) of the 1964 act provides There is a very real argument that a which, though not so registered, the land is further that the register is conclusive purchaser of registered land may, by reason subject by virtue of section 72, but shall be evidence of ownership and shall not of the absence of any provision in the 2009 free from all other rights, including rights (inS the absence of fraud) be “in any way act specifically declaring the charge created of the State. affected in consequence of such owner by that act to be a section 72 burden, “2) Where, however, the transfer is made having notice of any deed, document, or succeed in taking free of an NPPR charge without valuable consideration, it shall, so matter relating to the land”. not registered on the folio at the date of far as concerns the transferee and persons Wylie’s Irish Land Law (fifth edition) their application for registration. claiming under him otherwise than for states that section 31(1) “in effect abrogates Solicitors should carefully review the law valuable consideration, be subject to all the doctrine of notice with respect to and come to their own conclusions. unregistered rights subject to which the registered land, at least to the extent that a transferor held the land transferred.” purchaser for value who becomes registered At paragraph 5.4 of her judgment, Laffoy as new owner of the land is not affected J further stated: “While unregistered by notice of anything not appearing on LOOK IT UP rights may be created over registered land, the register, unless it is a burden affecting CASES: section 68(2) of the act of 1964 provides registered land without registration”. n Roche v Leacy [2012] IEHC 96 that all such rights shall be subject to the Deeney’s Registration of Deeds and Title provisions of the act of 1964 with respect to in Ireland (first edition) states that the LEGISLATION: registered transfers of land or charges for conclusiveness provided for in section n Local Government (Charges) Act 2009 valuable consideration. This is consistent 31(1) “abrogates the equitable doctrine of n Local Government (Household with subsection (2) of section 52, which notice (express or constructive) in relation Charge) Act 2011 provides that, where the transfer is made to registered land … the equitable doctrine n Registration of Title Act 1964 ‘without valuable consideration’, it shall of notice (express or implied) is excluded in 34 WELLBEING July 2020 Law Society Gazette gazette.ie PARENT COMPANY
AT A GLANCE n Solicitors are facing difficult work and parenting challenges during the current pandemic n While ‘parenting’ both clients and children, you need to look out for yourself n The attitude of parents to the pandemic has a direct correlation to that of their children n Spending time outdoors each day is PIC: SHUTTERSTOCK fundamental to positive mental health n Use the ‘Tree of Life’ exercise to map out your strengths and look to the future with hope gazette.ie Law Society Gazette July 2020 WELLBEING 35
How are you coping with working and parenting in a pandemic? Trish Howard and Louise Gartland call ‘time-out’ to take stock and enjoy some artistic creativity to explore our emotions
TRISH HOWARD IS A PSYCHOTHERAPIST WHO WORKS IN THE LAW SCHOOL AND IN PRIVATE PRACTICE. LOUISE GARTLAND IS DIRECTOR OF THE ARTONOMY ART PSYCHOTHERAPY CENTRE IN DUBLIN AND VICE-CHAIR OF THE IRISH ASSOCIATION OF CREATIVE ARTS THERAPISTS
s we embark on the road back to ‘normal’, we may be able to reflect on just how big a shock we all received on 12 March, when the schools were closed and normal life came to an abrupt halt. Our physical connection to loved ones and places was severed, replaced by a sometimes frightening and often monotonous reality. The immense social, economic and other sacrifices we have made in order to protect our collective physical health have put great strain on our mental and emotional wellbeing, and on that of our children. This article looks at some of the challenges that solicitors who are parenting school-age children and teenagers might be facing at this time. We focus on ways to recognise and use the resources you already have to support your children, and we provide a creative tool to assist you with this. Solicitor parents have been dealing with particular stresses and demands that are worth thinking about and acknowledging. Perhaps you have a well-resourced home office and appreciate this opportunity to spend more time with your children. On the other hand, you may be grappling with technology issues or lacking privacy to manage delicate client or internal calls. Relationships and marriages may also be under strain as our roles and dynamics shift. Perhaps you have spent the 36 WELLBEING July 2020 Law Society Gazette gazette.ie
THIS MAY MEAN THAT, NOT ONLY ARE YOU ACTING AS A PARENT TO YOUR ACTUAL CHILDREN, YOU MAY BE ENCOUNTERING (UNCONSCIOUS) DEMANDS FROM CLIENTS TO PERFORM A PARENTAL, CALMING ROLE FOR THEM ALSO
FOCAL POINT DREAM ON The ‘Tree of Life’ exercise is simple and fun Write on the tree and strong, and become aware of the areas and allows us, through creativity, to explore When everyone has drawn the tree, it’s time to that need more exploration and attention. For our resources while being present with our write some words. We have suggested writing example, if a child struggles with naming their children. Together, you can map out your three items, but allow yourself and your child strengths or things they like about themselves, strengths, the people who support you, and to write as many as you wish (younger children this is an incredible opportunity to explore those have fun looking to the future with hope. It is may need you to write for them): perceived deficits and ask how you can help. a marvellous opportunity to listen to ourselves • In the roots of your tree, write three things Some children may struggle to complete and our children and reinforce the importance about the world you were born into. the exercise, but don’t worry if this is the of listening to oneself. It can be done as a once- • In the trunk of your tree, write in three of the case. There is evidence that the stress-related off or at intervals in our children’s lives. strengths you have or three things you like hormone, cortisol, lowers significantly after just • What you will need: a sheet of paper/card about yourself. 45 minutes of art creation. Whether we do a and markers. Coloured pencils and pens are • In the branches of your tree, write in the specific art exercise or something spontaneous, fine too. people who hold you up/support you in life. it has the effect of regulating us so that we • Optional extras: leaves and small twigs you’ve It’s fine if those people are also from your can look at whatever is bothering us without collected together on walks (and glue). past. the heightened panic, fear and anxiety • Setting ground rules: have a think about what • In the foliage of your tree, write in your hopes attached to it. ground rules would work – for example, no and dreams. such thing as wrong answers; no laughing at people’s artistic ability. If your child struggles to explore these items, you can ask them to describe Draw a tree the tree they’ve drawn, rather than Without any other information, everyone draws a themselves. tree with four distinct parts: • Roots, Discuss • Trunk, Each person takes a turn to • Branches, and describe their tree and what they • Foliage of any kind (fruit, flowers, leaves, wrote from the roots to the tips. The etc). object of the exercise is to open up new conversations with ourselves, with our Take as much time as you and your children children, and even between siblings. When need to draw this tree, using whatever colours listening to your children describing their tree, and materials you and your child wish. you can discover where they feel supported gazette.ie Law Society Gazette July 2020 WELLBEING 37 PIC: SHUTTERSTOCK last few months trying to complete work The second finding of the research is that requires intense concentration while that the attitude of parents to the pandemic trying to attend to – or home-school – your has a direct correlation to the attitude of children, who are also facing huge emotional their children. Take time to think about upheaval. When children need us, they quite where you are with all of this, mentally and rightly do not care about our deadlines, our emotionally. What do you need in order to clients or our careers. feel calmer and more resourced? Before we While facing the challenges of working can truly attend to our children, we must in this new environment, you are also attend to ourselves. If you can face the interacting with clients similarly affected by coming months with a sense of calm, your the pandemic. Clients are possibly exerting children will take their cues from you. This considerable pressure on you to meet their does not mean you cannot have unsteady demands, oblivious to or forgetting the or anxious days. These experiences are fact that you are in a similar situation and universal and children need to know that working from home. it’s okay to struggle. It is the managing of Solicitors occupy a position of influence in the unsteadiness and anxiety that counts. society, and also hold a symbolic authority. Consider a self-care practice of meditation, This may mean that not only are you mindfulness, breathing or engaging in some acting as a parent to your actual children, counselling if you feel it would be helpful. you may be encountering (unconscious) theory, and affect regulation) emphasise demands from clients to perform a parental, the importance of connection with others, hildren, through their play and their calming role for them also. To be a source of and the role that being with others plays creativity, often have the answers to certainty to others, when in fact you have as in our ability to regulate emotionally. It is their problems, but they may not little certainty as anyone else, can take a toll. also important to remember that children, Chave learned to listen to or trust their own in general, are astoundingly resilient and voices. Learning to really hear what they are Sweet emotion adaptable. telling us and to trust what they say can be On an emotional level, there is no right or Our job as parents is to assist our children uncomfortable, but extremely rewarding. wrong way to respond to a global pandemic, in understanding how they are feeling and to Sometimes, our children may not have the but it is useful to have a sense of how help them navigate their personal journey. language to describe how they are feeling; you and your children are coping. While The most effective way to do this is from a this is where an exercise like the one in there will be enjoyable aspects of this less place of connection, with ourselves and our the panel can be extremely useful. What frantic life, you and your children may be children. For this very reason it is essential cannot be said in words can be expressed experiencing other intense emotions or to be intentional and fully present (putting symbolically, and we can ‘hear’ what our feeling quite shut down and numb. the phone away) in the time we spend with children are telling us, using different ears. Some children are possibly dealing with them. This enables them to identify their own loss, uncertainty, boredom and fear, just It is impossible to be fully present all resources to thrive. like their parents. Some are doing really day long, but we can create pockets of There are, of course, times when we well at home, but may need help processing space for this. Giving time to our children, simply do not feel that we or our children emotions around the return to school and whereby we are wholly mentally and have what is needed to address some activities. physically available to them, is a gift that difficulties. That is okay. We are not all- helps them to feel important, wanted, loved, knowing or all-powerful creatures. It is nderstanding how we feel is safe and steady, even in their moments of important to acknowledge this to ourselves important. When we can express unsteadiness. and our children, and to be able to ask for our feelings, we can understand help when it is needed. themU and take steps to make changes if Sunshine If you have serious concerns about your needed. Ignoring our feelings, particularly International research has recently own or your child’s mental health, contact ones we don’t like to admit to (for example, determined two significant factors central your GP or their school, who can direct anger, fear, shame), can lead to reactive to combating the negative effects of the you to further resources. You can also call parenting and behaviour – for example, pandemic for children. The first is that LegalMind to speak to an independent flying off the handle or engaging in power spending time outdoors every day is mental-health professional who will talk struggles with your children. fundamentally important for maintaining through any issues you or your dependants positive mental health. So, go outside with may be facing. Find out more at www. Toys in the attic your children as much as you can; collect lawsociety.ie/legalmind. Although there are significant unknowns some objects from nature to bring home, Also take a look at the Law Society’s about how the world will look in the future, and use them to make art together. For those Professional Wellbeing Hub at www. we do know what good mental health looks of you who are pressed for time, utilising the lawsociety.ie/wellbeinghub to investigate like. Many psychological theories (for garden or your nearest green space can be other ways of supporting you and your example, attachment theory, polyvagal nerve highly beneficial. children during COVID-19. 38 ANALYSIS News in depth July 2020 Law Society Gazette gazette.ie WHO YA GONNA CALL? Like all other legal businesses, town agents have been adversely affected by the lockdown. But as Valerie Peart points out, this vital service could be the saving grace for many law firms. Mark McDermott reports
MARK Mc DERMOTT IS EDITOR OF THE LAW SOCIETY GAZETTE
own agencies have never in 1974 while attending UCD, How has the agency side of the been busier – at least, that subsequently qualifying as a solici- firm been coping since the shut- was up to mid-March, when tor in 1980. down? “Things were on the up Tthe pandemic hit. Ever popular While the firm has deep roots, – and then we started wondering with country law firms who require the town-agency service only where it was all going,” she com- a Dublin-based agent to handle began in the 1940s, when John R ments. “Then it struck us that it their administrative affairs in the Peart, Valerie’s grandfather, asked was a good time to put ourselves capital, Pearts Solicitors and Town his newly qualified son Denis to front and centre for people who Agents on Ormond Quay has start providing additional admin- might not have previously consid- been, for many, the go-to agency. istrative services to several close ered that they could use the help Pearts has been in existence since colleagues. Denis saw the demand of an agent.” 1883, with upwards of 800 firms on and grew the town-agency busi- its books, which use them as their ness from a small base of 20 clients. Under pressure agent for a wide variety of services. “Firms look on us as an exten- How are Pearts managing the Having taken over the business sion of their offices,” says Valerie. crisis themselves – and for their from her brother Michael, when “By using us, they have access to a clients? he was appointed to the High further 30 or so staff who have the “The coronavirus has created Court in 2002, Valerie Peart is experience and knowledge they many challenges,” Valerie admits. ONE MEMBER OF now the principal of the firm. She require, and on whom they have “At the very beginning, when OUR STAFF IN A began working with her dad Denis come to rely.” things had closed down, we set COURT’S PUBLIC OFFICE OR IN A COURTROOM – REPRESENTING PERHAPS 15 DIFFERENT FIRMS – IS FAR BETTER THAN 15 PEOPLE FROM 15 DIFFERENT FIRMS, WITH ONE ITEM EACH REQUIRING
ATTENTION Valerie Peart, principal of Pearts Solicitors and Town Agents gazette.ie Law Society Gazette July 2020 News in depth ANALYSIS 39 PIC: SHUTTERSTOCK
up a dedicated telephone line that now and the new working restric- End of the world as we know it clients could call if they needed to tions, more than ever we believe Pearts is no different from other TOWN AGENTS ask us anything, or were looking that the town agent will be part law firms who are facing the chal- for specific information. Our staff of the solution, including for lenges presented by the lock- WILL BECOME are highly experienced and had Dublin firms. One member of down and the gradual return EVER MORE answers for the vast majority of our staff in a court’s public office of their staff to the workplace. questions. And, if not, then they or in a courtroom – representing Like others, they have been re- SIGNIFICANT knew who to ask. It’s not that we perhaps 15 different firms – is far arranging their offices, devel- have all the answers – but some- better than 15 people from 15 dif- oping rotas for staff who need FOR LAW FIRMS times it’s just knowing what to do ferent firms, with one item each. to continue working from both WHO ARE NOW with the question.” “Recent demand from Dublin- home and work offices, put- She believes that town agents based practitioners, however, has ting in place dual teams in case ATTEMPTING will become ever more signifi- made us look again at our own anyone catches the virus, and cant for law firms who are now business model, leading to the installing plastic shields, distance TO ‘PRIME THEIR attempting to ‘prime their pumps’ decision to start expanding our markers and hand sanitisers. PUMPS’ ONCE once again. town-agency services to firms in The reduced numbers in offices “Given where Ireland is right the capital,” she says. are putting pressure on firms AGAIN Have you played with us lately? Because we have issues – and clickable things
gaLAW SOCIETY ette
In our digital issue, you can instantly access links to referenced cases and legislation, as well as pictures, video and audio. For best results, we recommend that you download the issue to your computer or device – it only takes seconds. Go on – push our buttons. It’s fun You can find it atgazette.ie along with our daily news site and other stuff gazette.ie Law Society Gazette July 2020 News in depth ANALYSIS 41
who might not have the luxury to manage the work. Though to hop on the Luas, walk down of being able to release a staff evolving every week, court atten- the quays, queue at the central member to attend the Central dance, at the moment, is also by office, and then get back on the Office in order to deal with High appointment only. Luas again. Court and other superior court “Cases being listed by appoint- “When someone signs up with matters. ment as opposed to the ‘normal’ us, they get our terms and condi- “We don’t fully know yet list system has a certain advan- tions, including our price list, so where the greatest need will tage to it – you’re not waiting for they know what the cost is going arise, but we’re putting ourselves long periods to be called out of a to be before they engage us.” and our expertise at the service of list of 30 or more.” As solicitors attempt to reopen our colleagues. Once law firms Currently, it’s a wait-and-see their offices, and given the start reopening their offices, approach in terms of how the unprecedented restrictions that we believe that the demand for courts will operate their case- will continue to have an impact agency services will increase,” load. “Obviously, the Chief on all law firms, Valerie expects to IT STRUCK US Valerie says. Justice will decide how matters see a growing demand on town- develop, along with the presidents agency services. “We carry out THAT IT WAS A Lone ranger of the various courts,” she points many of the routine tasks per- After an initial two-week closure out. “A sizeable backlog of cases formed by solicitors. This allows GOOD TIME TO in March to take stock of the has inevitably built up. Solicitors fee earners more time to focus on PUT OURSELVES situation and to deep-clean their – and we also – are waiting to see their core legal work,” she says. premises and put safety proto- what’s going to happen.” “As a solicitor firm, as well as FRONT AND cols in place, Pearts reopened a town agency, we can offer law on 1 April, with minimum staff It’s what you value firms the service of a solicitor to CENTRE FOR attending in Ormond Quay and How cost-effective is the service attend court and look after their PEOPLE WHO some working from home, where that town agents like Pearts pro- clients. We can close sales, handle possible. The firm had just one vide? clients’ moneys, and we are sub- MIGHT NOT staff member attending the Four “First of all, ours is a good ject to all the Law Society regula- Courts on a daily basis. value-for-money service. Our tions that apply to every solicitor. HAVE PREVIOUSLY “We were given one appoint- clients are getting a highly pro- “Traditionally, interest in our CONSIDERED ment per day lasting 15 min- fessional service for a very rea- services has been from firms utes,” Valerie says. “We’ve now sonable outlay. A solicitor’s firm outside of Dublin. Well, we THAT THEY been allowed two 15-minute might send a staff member to think that Dublin firms are now appointments, which is a positive do the same work – but that’s rethinking how they are going COULD USE THE development. These take place time out of the office. It’s much to get things done in the current HELP OF A TOWN at different times of the day, but quicker for us to do that for crisis – and we are ready, willing FLACby appointment Strip Advert only, v2a sosol-bar.qxp_Layout we have them 1than 13/04/2018 for someone 18:28 to Page have 1 and able to help.” AGENT
FL A C I S R E C R U I T I N G S O L I C I T O R S A N D B A R R I S T E R S
t We are recruiting solicitors and barristers for FLAC Clinics which operate in partnership with Citizens Information Centres throughout the country. t By volunteering in a FLAC Clinic you can help people in your community to access justice. t You need to be available for 2 hours on one evening per month and training is provided. Please get in touch with us to learn more about volunteering with FLAC.
Contact Kuda at [email protected] or call us at 01 8873600. Also read more at www.flac.ie/getinvolved 42 ANALYSIS News in depth July 2020 Law Society Gazette gazette.ie
GERMAN RULING A POTENTIAL THREAT TO EU LAW When an EU member state rejects European Court of Justice rulings, what does this mean for the future of the Union, ask Eimear Burke and Dearbhla Walsh
EIMEAR BURKE IS A PARTNER AND DEARBHLA WALSH IS A TRAINEE AT FIELDFISHER
n 5 May, the German when assessing the likely impact it has always held that the legal- Federal Constitutional of its policies on both monetary ity of the acts of EU bodies can Court issued a judg- and broader economic outcomes. only be determined by the CJEU Oment in which it declared a Euro- The court claimed that the – and not national courts – in pean Court of Justice (CJEU) CJEU’s interpretation of the prin- order to prevent the chaotic situ- decision ultra vires in Germany. ciple of proportionality in its judg- ation in which EU acts are legal The ruling focused on the legal- ment of 11 December 2018 “man- in one member state, but not ity of aspects of the European ifestly exceeds the judicial man- in another. The CJEU stated: Central Bank’s Public Sector date conferred upon the CJEU in “Divergences between courts of Purchase Programme (PSPP). article 19(1)”, thus resulting in “a the member states as to the valid- The legality of this programme structurally significant shift in the ity of such acts would indeed be THESE CASES had previously been referred to order of competences, to the det- liable to place in jeopardy the ILLUSTRATE the CJEU, wherein it had been riment of the member states”. unity of the EU legal order and determined lawful. For this reason, the German to detract from legal certainty. WHAT MIGHT The ruling has received wide- court concluded that the CJEU’s Like other authorities of the spread attention, as it poses a “aforementioned judgment thus member states, national courts BE DESCRIBED potentially fatal threat to the constitutes an ultra vires act that are required to ensure that EU AS A BUILDING future of one of the main char- is not binding upon the Federal law takes full effect. That is the acteristics of the EU – namely, Constitutional Court” (para- only way of ensuring the equal- TENSION the principle of the supremacy of graph 163). ity of member states in the union EU law over the national law of The German ruling is final, as they created.” BETWEEN THE its member states. it is not subject to appeal to any It is reasonable to anticipate CJEU AND other court. that paragraph 163 of this rul- Violated principles The European Commission ing will become one of the most SOME MEMBER In rejecting the CJEU ruling, the responded to the German ruling, cited paragraphs in the analysis German court determined that stating that, “notwithstanding of the supremacy of EU law in STATES OVER the CJEU had violated principles the analysis of the detail of the the coming years. ITS PERCEIVED of legal interpretation, and it fur- German constitutional court’s Given the central role of Ger- ther determined that the CJEU decision today, we reaffirm the many in the EU, the decision is LEGAL MICRO- had failed to properly apply the primacy of EU law and the fact a major blow from the heart of EU’s proportionality principle. In that the rulings of the European the union. MANAGEMENT particular, the German court indi- Court of Justice are binding on OF MEMBER cated that the CJEU had failed all national courts”. Czech decision to ensure that the ECB applied Furthermore, the CJEU noted The German judgment is, how- STATE LAWS its own proportionality analysis in a recent press statement that ever, not the first time that a gazette.ie Law Society Gazette July 2020 News in depth ANALYSIS 43 PIC: SHUTTERSTOCK
The Federal Constitutional Court is the supreme constitutional court for the Federal Republic of Germany national court has found a CJEU lower than those in the Czech domestic judicial defiance against EVEN IN THE judgment to be ultra vires, or Republic, thus leading to a series the EU, in that never before had at least concluded that it has of disputes. a member state taken such a radi- SHORT TIME no legal basis in domestic law. In issuing its ruling on this cal step in a final national judg- As far back as 31 January 2012, case, the CJEU held that this ment. SINCE THE the Czech Constitutional Court scheme contravened EU law on DECISION OF declared the CJEU judgment the ground that it discriminated Danish decision in the Landtová case to be ultra on the basis of nationality. In The Supreme Court of Denmark THE GERMAN vires, thus giving national law concluding that the decision of reached a similarly controversial precedence over EU law. the CJEU was ultra vires, the conclusion on 6 December 2016 FEDERAL This case concerned an Czech Constitutional Court in the Dansk Industri case. CONSTITUTIONAL alleged discriminatory pen- ultimately found that the CJEU This case concerned a dispute sion scheme in the context of had overstepped the boundar- between private parties, in which COURT, THE the breakup of Czechoslovakia ies of the powers transferred to the claimant challenged the com- into the Czech Republic and the EU by the Czech Republic. patibility of a piece of Danish HUNGARIAN Slovakia. Part of the agreement A core reason put forward by the legislation with EU law, namely GOVERNMENT reached in the context of that Czech court was that the CJEU the EU principle of non-discrim- breakup provided that pensions applied its principles to the dis- ination on grounds of age. The HAS SOUGHT would be determined by the state solution agreement between the Danish legislation at issue pro- of residence of the employer at two countries. vided that a severance allowance TO RELY ON the time of the dissolution. This On the surface, this judgment was not payable to dismissed THE RECENT became problematic, as Slovak appeared to mark the beginning employees when they were enti- pensions remained significantly of member states displaying tled to an old-age pension from UNCERTAINTY LegalMindLegalMind Supporting Mental HealthSupporting Mental HealthLegalMindLegalMind and and Resilience Resilience ininSupporting Mental Health the Supporting Mental Healththe Legal Legal Community Community and Resilience 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 supportLegalMindsupportLegalMind for for solicitors is asolicitors is a confidential, confidential, and and their dependants. their dependants. independent, independent, lolow w-cost-cost mental mental health health supportsupport for for solicitors solicitors and and their dependants. their dependants. TheThe support support is ais permanent a permanent support, support, based based in Ireland,in Ireland, and and will will be be The support is a permanent support, based in Ireland, and will be thereThethere for support for solicitors solicitors is a throughpermanent through any any support, personal personal based or professionalor professionalin Ireland, challenges. and challenges. will be therethere for for solicitors solicitors through through any any personal personal oror professional professional challenges. challenges. there for solicitors through any personal or professional challenges. SolicitorsSolicitorsSolicitors can can call can call LegalMind atcall LegalMind at LegalMind at any anyany time time of oftheof the the day day day or or night,or night, night, from from from allall all overoverSolicitors Ireland,over Ireland, Ireland, canand and call talkand talk LegalMind attotalk ato tomental a a mental mental health any healthhealth time professional professionalprofessional of the day about aboutor about night, any any any issuesfromissues issues all theytheyover orthey Ireland,theiror theiror theirfamily familyand family maytalk may maybeto beafacing. be mental facing. facing. health professional about any issues they or their family may be facing. AfterAfter thisAfter this initial this initial initial conversation, conversation, conversation, solicitors solicitors solicitors may maymay then then then avail avail avail of of furtherof further further llow low- - coscoAftert supportsscot supports sthist supports initial – counselling, – counselling,–conversation, counselling, psychotherapy psychotherapy psychotherapy solicitors may or or psychologicalor then psychological psychological avail of further supports supports supports low - withinwithincoswithint a supports 30 a 30 kilometrea 30 kilometre kilometre– counselling, radius radius radius of theirof psychotherapyof their their home. 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 Access the service directly and talk to a counsellor now on freephone: AccessAccess theFor the service more service information directly directly and andvisit: talk talk towww.lawsociety.ie/legalmind toa counsellor a counsellor now now on on freephone: freephone: Access the service directly and1800 talk 81 to41 a 77 counsellor now on freephone: Access the service directly1800 and1800 81 talk 81 41 to41 77 a 77 counsellor now on freephone: 1800 81 41 77 gazette.ie Law Society Gazette July 2020 News in depth ANALYSIS 45
their employer and when the held in the transit zone for 464 with the CJEU, it will close the employee had joined the pension and 526 days respectively with- transit zone. Asylum seekers cur- scheme before turning 50. out being able to leave lawfully. rently based in the transit zone The CJEU ruled in this case The joint cases originated from will be transferred to alterna- that the Supreme Court of Den- preliminary ruling requests in tive facilities within Hungary, mark should interpret national December 2019, which led to namely asylum reception centres law in light of Directive 2000/78/ the Hungarian Court asking the with varying degrees of increased EC, and further held that the CJEU to rule on whether, among permission to leave the centres, Supreme Court of Denmark other questions, the above con- unlike the restriction of the tran- should “disapply any provision of stitutes detention. The CJEU sit zone. national law which is contrary to ruled that being held in a tran- the EU law”. sit zone amounts to detention The future Despite the clear direction of under EU law (namely Direc- The final outcome in Hungary the CJEU, the Supreme Court tive 2013/33/EU) and that such may appear, on the surface, to be of Denmark used this occasion to detention cannot extend beyond a revalidation of the principles of set new boundaries to the appli- four weeks. European law. However, it may cability of the CJEU’s rulings in This CJEU judgment has also be perceived as a strategic Denmark, ultimately refusing received wide attention. It has move by the Hungarian Govern- THE RULING to set aside the conflicting pro- been seen by many as a victory ment. This can be implied from HAS RECEIVED vision of national law and thus for all Hungarian citizens, as it a press conference on 21 May, providing national law with pre- strengthens protections against during which the Hungarian WIDESPREAD cedence over EU law. In doing arbitrary detention and is likely to Government celebrated (as a vic- this, the Supreme Court of Den- have a significant impact in terms tory for Hungarian diplomacy) ATTENTION, LegalMind mark concluded that the judge- of the upcoming discussions on the fact that Hungary cannot be AS IT POSES A LegalMind made principles of EU law, such the future of the European asy- compelled by others to direct LegalMind as the general principle of non- lum system, due to the fact that it who gets to settle within their POTENTIALLY Supporting Mental Health and Resilience discrimination on grounds of reinforces essential human rights borders. FATAL THREAT TO Supporting Mental Health and Resilience age, were not binding, as they do and asylum safeguards. These cases illustrate what in the Legal Community not have their origin in a specific However, the Hungarian prime might be described as a building THE FUTURE OF treaty provision. minister has referred to the judg- tension between the CJEU and in the Legal Community ment as part of a ‘coordinated some member states over its per- ONE OF THE MAIN LegalMind is a confidential, independent, low-cost mental health Hungarian decision attack’ by the EU on Hungary. ceived legal micromanagement LegalMind is a confidential, independent, low-cost mental health Even in the short time since the Significantly, the prime minister of member state laws. CHARACTERISTICS supportLegalMind for is asolicitors confidential, and their dependants. independent, lo w-cost mental health decision of the German Federal stated that, if the CJEU issues a It is clear that the cases of OF THE EU – support for solicitors and their dependants. Constitutional Court, the Hun- judgment that conflicts with the Landtová and Dansk Industri have garian government has sought Hungarian Constitution, then the not proven to be fatal to the EU NAMELY, THE The support is a permanent support, based in Ireland, and will be to rely on the recent uncertainty constitution must have priority. legal architecture. It remains to PRINCIPLE OF THE thereThe support for solicitors is a permanent through any support, personal based or professionalin Ireland, and challenges. will be that has arisen in the European This statement clearly echoes the be seen, however, whether the legal order. recent judgment of the German recent German ruling and the SUPREMACY OF there for solicitors through any personal or professional challenges. On 14 May 2020, the CJEU court. subsequent echoing of that rul- Solicitors can call LegalMind at any time of the day or night, from all issued a judgment in relation to Nonetheless, despite the ing by the Hungarian Govern- EU LAW OVER THE Solicitorsover Ireland, can and call talk LegalMind at to a mental any health time professional of the day or about night, any from issues all the treatment of asylum seekers prime minister’s statement, the ment will prove to be a more over Ireland, and talk to a mental health professional about any issues being held in the transit zone at Hungarian Government subse- significant blow to the EU, or NATIONAL LAW theyover Ireland,or their familyand talk may to bea mental facing. health professional about any issues the Hungarian-Serbian border. quently announced on 21 May if they will merely join Land- OF ITS MEMBER This case concerned two asylum- 2020 that, although the Hun- tová and Dansk Industri as being they or their family may be facing. seeking families who were being garian government disagrees ‘bumps on the road’. STATES After this initial conversation, solicitors may then avail of further low- coAfterst supports this initial – counselling,conversation, psychotherapy solicitors may or then psychological avail of further supports low- TAKE FIVE… withincost supports a 30 kilometre – counselling, radius ofpsychotherapy their home. or psychological supports within a 30 kilometre radius of their home. LawWatch – delivered every Thursday to your inbox… Keep up to date with recent judgments, legislation and topical journal articles by scanning the library’s LawWatch newsletter every week.
For more information visit: www.lawsociety.ie/legalmind Sent to all members, it takes just five minutes to stay For more information visit: www.lawsociety.ie/legalmind informed. Enquiries to: AccessFor the more service information directly andvisit: talk www.lawsociety.ie/legalmind to a counsellor now on freephone: [email protected] or tel: 01 672 4843. Access the service directly and1800 talk 81 to41 a 77 counsellor now on freephone: 1800 81 41 77 Library ad Gazette Jan_Feb 2017.indd 1 25/01/2017 15:09 46 ANALYSIS News in depth July 2020 Law Society Gazette gazette.ie ROLLING BACK ON RIGHTS? It is clear from the findings of a recent survey of criminal defence solicitors that no comprehensive or consistent approach is being taken to protect the right to legal advice for suspects at garda stations. Áine Bhreathnach reports
ÁINE BHREATHNACH IS A SOLICITOR IN SHALOM BINCHY & CO SOLICITORS
OVID-19 brings new and lawyer to provide assistance that able on the Shalom Binchey web- unchartered challenges to is effective and practical, rather site) are based on the responses of solicitors and An Garda than merely abstract and, in par- 25 respondents nationwide. The SíochánaC to vindicate and protect ticular, to ensure that the defence findings are qualitative in nature the fair-trial rights of suspects to rights of the interviewed suspect and provide a narrative snapshot legal advice and representation are not prejudiced” (see Beuze and of the recent experiences of crimi- during the interrogation process Soytemiz v Turkey, 27 November nal defence solicitors in the early while in garda custody. 2018). days of the pandemic. Garda interrogations often In 2014, the DPP permit- It is clear from the survey take between one and three hours ted solicitors to be present to that there is no comprehensive – often more, but rarely less. For advise during questioning when or consistent approach being the duration of the interroga- so requested by the suspect. It taken to protect the right to legal TO DATE, THERE tion, the suspect, solicitor and should be stated that, while this advice for suspects at garda sta- two gardaí sit in close quarters was a seismic shift in how solici- tions. The panel provides a brief IS NO STATUTORY in small interview rooms. Some tors and An Garda Síochána overview of approaches. FRAMEWORK IN cases also require an interpreter operated in Ireland, this right and/or an appropriate adult to had been provided for 30 years Impossible to comply PLACE PROTECT- be in the room. Solicitors and in England, Wales and Northern The current practice leaves solici- An Garda Síochána must jointly Ireland. To date, there is no statu- tors and suspects with a choice of ING THE RIGHT respond to protect this integral tory framework in place protect- attending the station in circum- OF PERSONS part of the trial process. ing the right of persons detained stances where it is impossible to In 2019, the European Court for questioning to have a solici- comply with Government public- DETAINED FOR of Human Rights made it clear in tor of their choice present during health guidelines, or reverting to Doyle v Ireland, as it had in other interviews. the pre-2014 practice – that is, no QUESTIONING TO previous cases (see Salduz v Tur- legal advice during questioning. HAVE A SOLICITOR key, Dayanan v Turkey, Beuze v Online survey We have participated in a num- Belgium) that the right of access From 1 to 13 May 2020, Shalom ber of meetings with colleague OF THEIR CHOICE to legal advice at garda stations Binchy Solicitors hosted an online lawyers in Northern Ireland, is part of the right to a fair trial, survey asking colleague defence England and Europe to learn PRESENT DURING protected under article 6 of the solicitors about their recent expe- from their experiences. INTERVIEWS European Convention on Human riences of providing legal advice EU countries, including Brit- Rights, namely, “suspects have the to suspects detained in garda sta- ain, have facilitated remote access right for their lawyer to be physi- tions during the initial stage of the at police interrogations and have Áine Bhreathnach and Shalom Binchy cally present during their initial COVID-19 public-health emer- identified suitable stations that acknowledge and extend their thanks police interviews and whenever gency (March to May 2020). The facilitate social distancing. Col- to all colleagues who contributed to they are questioned in the subse- findings of the survey (Experiences of leagues in other jurisdictions the survey. Thanks, also, to Dr Yvonne Daly, Dublin City University, for her quent pre-trial proceedings. Such Criminal Defence Solicitors in Garda have indicated that, while remote advice and guidance. physical presence must enable the Stations during COVID-19, avail- access is a positive addition to gazette.ie Law Society Gazette July 2020 News in depth ANALYSIS 47 PIC: SHUTTERSTOCK
the resources available to advise Rising to the challenge with An Garda Síochána to ensure Protocols are required from An clients, it is not without its chal- It is clear from the survey that that the rights of suspects in cus- Garda Síochána to ensure that lenges, including difficulties with the current measures are incon- tody are protected, both in the protective measures are in place connectivity, viewing exhibits and sistent and unsatisfactory. Our short and medium term, while we in each garda station and that documents during interview, and firm has written directly to An learn how to live with COVID-19. they are applied in a consistent protecting a client and building Garda Síochána, the Law Soci- Jurisprudence from Europe is manner. Garda stations where trust with them while being at a ety, the Department of Justice, clear that the absence of a law- social distancing is possible remove. and the Legal Aid Board outlin- yer at the initial stage cannot be before, during and after inter- The criminal justice watchdog ing the findings of the survey rectified at a later point in the view, and for legal consulta- Fair Trials is developing useful and our key recommendations. trial process. It is also clear that tions, should be identified and toolkits to safeguard the right to The Law Society’s Criminal An Garda Síochána and solici- used by An Garda Síochána. a fair trial during the coronavirus Law Committee has been at the tors must develop new ways of pandemic (see www.fairtrials.org/ forefront in presenting the survey working that protect against the Video-link covid19justice). findings and leading discussions spread of the virus. Solicitors also need suitable facilities between interviews. Remote access should be pro- vided for the duration of this FOCAL POINT public-health emergency, pref- BRIEF OVERVIEW OF APPROACHES erably by video-link, and should be part of a suite of options open Positive: • Time provided to have a lengthy • No PPE used by gardaí or • Efforts made by gardaí to telephone consultation, suspect – solicitor the only to gardaí and defence solicitors. comply with social-distancing • Interview and detention process person in the room using mask We have all got to find a guidelines, including changes focused and shorter. and gloves, way to work differently while to seating arrangements, • Perspex screen too small and COVID-19 remains a risk. This should not mean rolling back on • Urgent arrests only, Negative: ineffective; screen between one • Hand sanitiser provided and • No social-distancing being garda and detainee only, the fair-trial rights of suspects. gloves provided, practised, • Lack of space to provide safe Nor should it mean solicitors • Gardaí wore face masks and • No ventilation – air-circulating and confidential advice, having to choose between risk- gloves, heater in use, • No pre-interview medical check ing their health and vindicating • Large rooms provided for • Non-urgent arrests being carried in respect of COVID-19, their clients’ rights. Now is the consultations and interviews, out, • Gardaí encouraged suspects to time for the solicitors’ profes- • Perspex screen installed bet- • No PPE – solicitors told to bring ring another solicitor who would sion and An Garda Síochána to ween garda and suspect, their own, attend at the garda station. work collaboratively to protect and vindicate these rights. 48 ANALYSIS Human rights July 2020 Law Society Gazette gazette.ie
IS THE RULE OF LAW UNDER THREAT? As the world struggles to navigate the unsettling reality of COVID-19, there has been considerable debate around special emergency legislation, which has restricted individual rights and freedoms in the interests of public health, says Michelle Lynch
MICHELLE LYNCH IS POLICY DEVELOPMENT EXECUTIVE AT THE LAW SOCIETY OF IRELAND
he membership of the rights and equality before the law. also under international instru- European Union is based As we have all witnessed, how- ments, including the European upon shared common ever, the rule of law has faced Convention on Human Rights. Tvalues, one of which is the rule considerable threat in recent The measures taken must be of law. Article 2 of the Treaty on times, even in societies such as legitimate, proportionate and European Union provides that the Hungary, Poland and the United necessary. In a recent podcast union is founded on values such States. Populist rhetoric and by the International Bar Asso- as freedom, democracy, equality, policy have gained ground, plac- ciation, Rule of Law in the Time and respect for human rights, as ing further pressure on the rule of of COVID-19, the director of well as protection of the rule of law, democracy and human rights. the IBA’s Human Rights Insti- law. While many agree on the tute (IBAHRI) commented on importance of the rule of law, The new reality the balancing act that was being much debate exists over a defini- The current pandemic has cre- undertaken between the con- tive definition, and its precise ated a situation ripe for abuse, straint of individual freedoms elements may prove somewhat where the rule of law may be and that of the public-health elusive, even for those working irreversibly broken down under interests of society at large. She within the law. the guise of emergency powers. urged that, in exercising special COVID-19 In a communication, Further As the world struggles to navi- powers, there were three key ele- Strengthening the Rule of Law gate the new and unsettling real- ments that had to be followed: SHOULD NOT within the Union (3 April 2019), ity that COVID-19 has brought, • They must be limited in time, BE USED AS the European Commission set there has been considerable • They must be kept under out an EU definition of the rule of debate around special emergency review, and A PRETEXT law. In doing so, it acknowledges legislation that has restricted • The use of the power has to be the growing pressure it faces, and individual rights and freedoms independently monitored. TO LIMIT also the steps to be taken to pro- in the interests of public health DEMOCRATIC tect and strengthen it. as a whole. Many governments In this regard, the announce- The definition affirms that “all around the world now have sig- ment by the Dáil of the estab- AND CIVIC public powers always act within nificantly enhanced powers to lishment of a special COVID-19 the constraints set out by law, restrict the movement and free- Committee to provide effective SPACE, THE in accordance with the values doms of citizens, affecting how oversight and accountability was RESPECT OF of democracy and fundamen- each of us live our day-to-day a welcome development. tal rights, and under the control lives. THE RULE OF of independent and impartial While emergency legislation Wolf in sheep’s clothing courts”. It also includes, among gives the Irish Government the The UN has warned of the risk LAW, AND OF other things, a prohibition on power to restrict movement and of the pandemic being used as a INTERNATIONAL arbitrary exercise of executive travel, people still enjoy the pro- pretext to undermine democracy power, legal certainty, transpar- tection of rights contained, not and quash legitimate dissent. It COMMITMENTS ency, respect for fundamental only under the Constitution, but emphasises that fairness, justice, gazette.ie Law Society Gazette July 2020 Human rights ANALYSIS 49 PIC: TOMASZ GZELL/EPA
European judges joined their colleagues to march outside Poland’s Supreme Court in January and the rule of law are essential of law and of international com- quarantine restrictions or for tional human rights standards. to strengthen and support efforts mitments”. spreading false information. The The real fear is that these powers against COVID-19. In a recent Recently, Hungarian Prime government has advised that this will not be relinquished once the declaration, High Representative Minister Viktor Orban, who has will be brought to an end by the pandemic has passed. Josep Borrell, on behalf of the faced considerable criticism dur- end of June. However, it remains EU, affirmed “the need to pay ing much of his time in office, to be seen what the long-lasting Unprecedented step special attention to the growing introduced emergency legisla- effects are on the rule of law in Poland has also faced signifi- impact of the pandemic on all tion without a time limit and with Hungary. cant criticism, not least for its human rights, democracy and no capacity for review or moni- The IBAHRI issued a state- treatment of the judiciary, with the rule of law”, and cautioned toring. This effectively created ment urging the Hungarian numerous attempts to diminish that it “should not be used as a rule by decree, with no end date, Parliament not to pass the legis- their independence and power pretext to limit democratic and introducing excessive prison lation, as it declared that it is in through repressive disciplin- civic space, the respect of the rule sentences for those breaching clear contravention of interna- ary measures. In January, in an DIPLOMA CENTRE
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CONTACT DETAILS Clients include: Law Society Gazette, Law Society of Ireland, Institution of Occupational Safety and Health, Dublin Solicitors Bar Association, Alltech Craft Brews and Food e: [email protected] t: 01 672 4802 w: www.lawsociety.ie/diplomacentre All lectures are webcast, allowing participants to catch up on course work at a time suitable to their own needs. Please note that the Law Society of Ireland’s Diploma Centre reserves the right to change the courses that may be offered and course prices may be subject to change. 07_20 52 ANALYSIS Eurlegal July 2020 Law Society Gazette gazette.ie
COPYRIGHT AND THE EVOLVING DIGITAL LANDSCAPE The much-debated Copyright Directive entered into force on 7 June 2019, almost three years after the publication of the draft. The legislative process was not the smoothest, writes Mark Hyland
MARK HYLAND LECTURES AT THE TECHNOLOGICAL UNIVERSITY DUBLIN AND IS IMRO ADJUNCT PROFESSOR OF INTELLECTUAL PROPERTY LAW AT THE LAW SOCIETY OF IRELAND
ow that the dust has last significant revamp of the development. While the direc- somewhat settled on EU copyright rules occurred in tive reiterates the soundness of the process establish- 2001, when the Information Soci- the objectives and principles Ning Directive (EU) 2019/790 ety Directive (2001/29/EC) was laid down by the EU copyright on copyright and related rights adopted. The aim of that direc- framework, it also recognises in the digital single market, the tive was to harmonise certain that some legal uncertainty member states are left with the aspects of copyright and related remains for both rights-holders not inconsiderable challenge of rights in the information society. and users as regards certain uses, transposing this rather complex The Copyright Directive was including cross-border uses of piece of copyright legislation adopted to meet the challenges works and other subject matter into domestic law by 7 June, of ‘rapid technological develop- in the digital environment. It is 2021. ments’ and the emergence of worth noting that the moderni- Besides constituting a key ele- ‘new business models’ and ‘new sation of EU copyright law was ment of the European Commis- actors’ (recital 3). It acknowl- heralded four years prior to the sion’s digital single market strat- edges the need for copyright adoption of the Copyright Direc- THE RECITAL ALSO egy (2014-2019), the Copyright legislation to be future-proof, so tive, when a European Commis- Directive will help to bring about as not to restrict technological sion communication (‘Towards a RECOMMENDS an ambitious modernisation of the EU copyright framework. THAT RIGHTS- Separate rules on the exercise HOLDERS of copyright and related rights applicable to certain online SHOULD ‘RECEIVE transmissions of broadcasting organisations and retransmis- APPROPRIATE sions of television and radio REMUNERATION programmes are laid down by Directive (EU) 2019/789. FOR THE USE OF Major reform THEIR WORKS OR The Copyright Directive will OTHER SUBJECT bring about the first major reform of the EU copyright MATTER’ regime in almost 20 years. The gazette.ie Law Society Gazette July 2020 Eurlegal ANALYSIS 53 PIC: SHUTTERSTOCK
modern, more European copy- aim to ensure a well-functioning proportionately well, economi- right framework’, 9 December marketplace for the exploita- cally speaking, from the provi- 2015) spoke of adapting and tion of works and other subject sion of copyright material on its supplementing the existing EU matter. platforms. In contrast, the rights- copyright framework. holder (such as the musician) gen- By creating a comprehensive Protected content erally receives comparatively little new EU copyright framework, Considerable ink has been spilled economic benefit from the (often the Copyright Directive should discussing the pros and cons of unauthorised) sharing of his/her benefit a wide range of play- article 17. The objective of this IP-protected material online. ers acting in the digital envi- particular provision is to reca- ronment: internet users, music librate the EU’s digital economy Licensing agreements creators, artists, journalists and to ensure that rights-holders are Recital 61 provides the rationale the press, film and music pro- fairly remunerated. This recali- behind article 17. It refers to the THE ‘VALUE ducers, online services, libraries, bration can occur by addressing growing complexity of the online researchers, museums and uni- the so-called ‘value gap’ in the content market and the challenges GAP’ REFERS TO versities, among many others. digital market. The value gap posed to copyright holders whose THE MISMATCH refers to the mismatch in finan- protected material is uploaded Directive objective cial benefits flowing to rights- without their prior authorisa- IN FINANCIAL The subject matter and scope holders (such as musicians) tion. Legal uncertainty exists of the directive are set out in and the online content-sharing as to whether the providers of BENEFITS article 1. The directive lays service providers (OCSSPs). online content services engage in FLOWING down rules that aim to further The Copyright Directive defines copyright-relevant acts and need harmonise union law applicable an OCSSP as “a provider of an authorisation from rights-hold- TO RIGHTS- to copyright and related rights information society service of ers in the context of copyright in the framework of the inter- which the main or one of the content uploaded by individual HOLDERS (SUCH nal market, taking into account, main purposes is to store and users (user-generated content). AS MUSICIANS) in particular, digital and cross- give the public access to a large Recital 61 goes on to exhort the border uses of protected con- amount of copyright-protected establishment of a licensing mar- AND THE ONLINE tent. The directive also lays works or other protected sub- ket between rights-holders and down rules on exceptions and ject matter uploaded by its users, OCSSPs. It states that the licens- CONTENT- limitations to copyright and which it organises and promotes ing agreements should be “fair SHARING SERVICE related rights, on the facilitation for profit-making purposes”. and keep a reasonable balance of licences, as well as rules that Normally, the OCSSP does dis- between both parties”. Impor- PROVIDERS 54 ANALYSIS Eurlegal July 2020 Law Society Gazette gazette.ie
tantly, the recital also recom- to the OCSSP, then, under arti- aged cooperation between ment of disputes. Such mecha- mends that rights-holders should cle 17(4), the OCSSP is deemed OCSSPs and rights-holders, nisms shall enable disputes to be “receive appropriate remunera- liable for unauthorised acts of and speaks of the acceptability settled impartially, and shall not tion for the use of their works communication to the public of copyright-compliant works deprive the user of the legal pro- or other subject matter”. Finally, and making available to the pub- being uploaded to online con- tection afforded by national law, the recital states that contractual lic copyright-protected works. tent-sharing services. In addi- without prejudice to the rights freedom should not be affected However, exemptions from tion, digital works covered by of users to have recourse to effi- and that it is entirely up to rights- liability apply if the OCSSP can copyright exceptions and limita- cient judicial remedies. holders whether or not they wish demonstrate that it has: tions may be uploaded and made Interestingly, under article to give an authorisation or to con- a) Made best efforts to obtain an available by internet users. 17(10), ‘stakeholder dialogues’ clude a licensing agreement. authorisation, and The exceptions/limitations are envisaged to discuss best b) Made, in accordance with specifically referred to in the practices for cooperation Exclusive performance rights high industry standards of Copyright Directive are quota- between OCSSPs and rights- Article 17(1) deems an OCSSP professional diligence, best tion, criticism, review, and holders. These stakeholder to have performed an act of com- efforts to ensure the unavail- works used for the purpose of dialogues will be organised by munication to the public or an ability of specific works and caricature, parody or pastiche. the European Commission and act of making available to the other subject matter for which No general monitoring obliga- the EU member states, and public when it gives public access the rights-holders have pro- tion is imposed on OCSSPs by the results of the dialogues will to copyright-protected works vided the OCSSP with the the directive. assist the commission in issu- uploaded by its users. Both of relevant and necessary infor- ing guidance on the application these acts are deemed exclusive mation, and, in any event, Complaint and redress of article 17. In discussing best rights under article 3 of the Infor- c) Acted expeditiously, upon However, under article 17(4), practices, special account must mation Society Directive. To make receiving a sufficiently sub- OCSSPs must provide rights- be taken, among other things, of this situation legal from a copy- stantiated notice from the holders with adequate informa- the need to balance fundamental right perspective, the OCSSP is rights-holders, to disable tion on the functioning of their rights and the use of exceptions obliged to obtain an authorisa- access to, or to remove from practices, and, where licens- and limitations. tion from the rights-holders – for their websites, the notified ing agreements are concluded instance, by concluding a licens- works or other subject mat- between OCSSPs and rights- Protecting creativity ing agreement. An authorisation ter, and made best efforts to holders, information on the use The Copyright Directive will will also cover acts carried out prevent their future uploads of content covered by the agree- protect creativity in the digital by users of the OCSSP’s services, in accordance with point (b). ments. age and ensure that EU citizens provided they are not acting on a Under article 17(9), OCSSPs benefit from wider access to commercial basis or where their The determination as to must put in place an effective content. activity does not generate signifi- whether the OCSSP has com- and expeditious complaint and The new rules will strengthen cant revenues. plied with its obligations under redress mechanism that is avail- the creative industries within the By virtue of article 17(3), when article 17(4) will involve the able to users of their services. EU, which represent 11.65 mil- an OCSSP performs an act of application of the principle of This mechanism can be used lion jobs, 6.8% of GDP, and are communication to the public proportionality, and two further where there are disputes over worth €915 billion per year. The or an act of making available to elements will be considered: the disabling of access to (or the directive attempts to achieve the public (without the rights- • The type, audience, and the removal of) works or other sub- the right balance between the holder’s authorisation), then the size of the service and the type ject matter uploaded by them. interests of all players – users, limitation of liability established of works or other subject mat- Where rights-holders request creators, authors, press – while in article 14(1) of the E-Commerce ter uploaded by the users of to have access to their specific putting in place proportionate Directive (2000/31/EC) shall not the service, and works or other subject matter obligations on OCSSPs. apply. Article 4 (1) is commonly • The availability of suitable disabled, or to have those works Article 17 is an important and called the ‘hosting exemption’ and effective means and their removed, they must justify the very necessary provision. It is and applies to information- cost for OCSSPs. reasons for their requests. unfortunate, however, that the society services consisting of the Complaints submitted by EU legislators have used rather storage of information. Under New OCSSPs will be subject users of online content-sharing vague language in the provi- this provision, the provider of to a less strict liability regime. services shall be processed with- sion. Terms such as ‘significant such services can avoid liability for To avail of this less onerous out undue delay, and decisions revenues’, ‘best efforts’, ‘high copyright infringement, provided regime, the OCSSP’s services to disable access to or remove industry standards of profes- it can satisfy one of two specified must have been available to the uploaded content shall be sub- sional diligence’, and ‘acted conditions in the directive. public within the EU for less ject to human review. expeditiously’ may undermine than three years, and they must Under the Copyright Directive, the principle of legal certainty, Possible liability have an annual turnover below out-of-court redress mecha- and will pose challenges for gov- Importantly, if no authorisation €10 million. nisms must be available in each ernments during the transposi- is granted by the rights-holder Article 17(7) refers to envis- EU member state for the settle- tion process. gazette.ie Law Society Gazette July 2020 Practice notes BRIEFING 55
PRACTICE NOTES ARE INTENDED AS GUIDES ONLY AND ARE NOT A SUBSTITUTE FOR PROFESSIONAL ADVICE. NO RESPONSIBILITY IS ACCEPTED FOR ANY ERRORS OR OMISSIONS, HOWSOEVER ARISING
LEGAL SERVICES REGULATION ACT TASK FORCE CRIMINAL LEGAL AID AND SECTION 150 NOTICES On receiving instructions from reasonably practicable to do so Where the client is granted not incur any costs towards the a client, a solicitor is required, at that time, the solicitor can set legal aid under the Criminal Justice solicitor. As a consequence, solici- under section 150 of the Legal out the basis upon which the costs (Legal Aid) Act 1962, the Society is tors appointed to provide legal aid Services Regulation Act 2015, to are to be calculated until as such of the view that the requirement under the Criminal Justice (Legal provide a section 150 notice to the time as it becomes practicable for the solicitor to inform the Aid) Act 1962 are not required to client that discloses the costs that to disclose the costs that will be client of the costs they will incur provide the client with a section will be incurred. Where it is not incurred in a section 150 notice. cannot be met, as the client does 150 notice. MONEYS RECEIVED FROM THIRD PARTIES When acting for clients, most Clients’ moneys are defined as the definition of clients’ moneys. Accounts Regulations. Therefore, notably in respect of private moneys received, held, or con- It is therefore a breach of the reg- solicitors should not facilitate equity or private loan transac- trolled by a solicitor arising from ulations for a solicitor to pay such such transactions. tions, solicitors are frequently his or her practice as a solicitor moneys or allow such moneys to Furthermore, a solicitor is asked to facilitate transactions by for or on account of a client or be paid into the client account. obliged to adopt policies and receiving, holding, and disburs- clients, whether the moneys are The solicitor does not have a procedures to prevent and detect ing money received, not only received, held, or controlled by definitively binding obligation the commission of money-laun- from the solicitor’s client, but also him or her as agent, bailee, stake- to account to a client for that dering and terrorist-financing from third parties. Often in such holder or in any other capacity. money. These moneys should not offences. A solicitor has an obli- transactions, it is intended that Where moneys are received be paid into the client account. gation to identify and verify the the moneys being raised for, or to for or on account of a solicitor’s Regulation 5(4) of the Solici- identity of clients and to make be used in, the transaction will be client, the moneys are clients’ tors Accounts Regulations 2014 such enquires into the source of paid into and out of the solicitor’s moneys and, accordingly, it is provides that, for the avoidance funds as are reasonably warranted client account. This involves the appropriate that such funds are of doubt, it shall be a breach of by the risk of money-laundering solicitor receiving moneys from paid into the client account, in the regulations for a solicitor and terrorist-financing. Comply- third parties who are not clients accordance with regulation 4(1) to pay into or hold in a client ing with these obligations pres- of the solicitor. of the Solicitors Accounts Regula- account moneys other than cli- ents significant difficulties for Regulation 4(1) of the Solicitors tions 2014. ents’ moneys. Accordingly, where solicitors in receipt of funds from Account Regulations 2014 provides However, where moneys are a solicitor facilitates a transaction third parties. that a solicitor who receives, holds, received from third parties that by allowing funds received from or controls clients’ moneys shall, are not moneys received for or third parties to be paid into a John Elliot, without delay, pay such clients’ on account of a client or clients, client account, that solicitor Registrar of Solicitors and Director moneys into the client account. these moneys do not come within shall be in breach of the Solicitors of Regulation
LegaL eZine for MeMbers
The Law Society’s Legal eZine for solicitors is now produced monthly and comprises practice-related topics such as legislation changes, practice management and committee updates.
Make sure you keep up to date: subscribe on www.lawsociety.ie/enewsletters or email [email protected]. 56 BRIEFING Practice notes July 2020 Law Society Gazette gazette.ie
GUIDANCE AND ETHICS COMMITTEE AND IN-HOUSE AND PUBLIC SECTOR COMMITTEE LEGAL PROFESSIONAL PRIVILEGE The Guidance and Ethics Com- enjoys constitutional protec- ments in order to give effect to of Prudential Plc v Special Com- mittee and the In-House and tion as a dimension of the pro- the intention of the client in an missioner of Income Tax [2013] 2 Public Sector Committee of tection of the administration of enforceable manner. AC 185). While LAP will not the Law Society of Ireland are justice afforded by article 34 of apply in respect of persons who pleased to present the following the Constitution. It is unclear The corporate client: have ceased to act as lawyers, practice note on legal profes- whether LPP is also recognised 6) A client may be a natural or a traditionally it has been thought sional privilege (LPP). as an unenumerated constitu- legal person. Where the client to apply where the client was This practice note is the first tional right (see, for example, is a legal person, such as a large unaware of this fact (Calley v in a series of two on LPP. This Miley v Flood [2001] 2 IR 50; corporation, difficulties have Richards (1854) 19 Beav 401). practice note provides an over- Martin v Legal Aid Board [2007] arisen in England and Wales view on the status of LPP for 2 IR 759; and the comments of regarding the identification of Lawyer conducting legal business solicitors. It includes an exami- McGrath on ‘Evidence’ (2nd ed, those employees who are ‘autho- through intermediary: nation of legal advice privilege 2014) at para 10-248). rised’ to deal with the lawyer on 8) The common law, recognising and litigation privilege, along behalf of the corporate client as that lawyers “cannot transact all with a summary of the principal 3) LPP is recognised as a fun- a result of the decision of the their business in person”, per- duties with regard to the law of damental right in the jurispru- Court of Appeal in Three Rivers mits the seal of privilege to apply privilege. It also looks at recent dence of the ECHR, as an aspect District Council v Governor and in circumstances where legal areas of interest relating to LPP. of article 6 (the right to a fair Company of the Bank of England business is conducted through A second, related practice trial; Niemietz v Germany (1992) (No 5) [2003] QB 1556, which intermediaries or subordinates note, focusing on solicitors 16 EHRR 97) and article 8 (the has been the subject of criticism, (Taylor v Forster (1825) 2 C&P working in-house in the private right to privacy; Campbell v UK but was most recently reaffirmed 195). It is generally accepted that and public sectors, is published (1993) 15 EHRR 137). Equally, in SFO v ENRC [2019] 1 ALL LAP will not be lost where law- below this note. its existence as a fundamental ER 1026. In this jurisdiction, the yers communicate with their cli- These practice notes represent right has been recognised in the High Court, in Ryanair v Channel ent through the agency of legal guidance for best practice for prac- case law of the CJEU (AM&S 4 [2018] 1 IR 734, confined Three executives, paralegals, apprentice titioners in the area of legal profes- v Commission [1982] ECR 1575 Rivers to its facts, holding that, solicitors or pupil barristers. sional privilege and do not constitute and Akzo Nobel Chemicals v Com- where there was no evidence legal advice. mission [2010] 5 CMLR 19). that a special unit had been set Litigation privilege up within Channel 4 to deal with 9) LP arises in respect of con- Overview Legal advice privilege the relevant litigation (as had fidential communications that 1) Legal professional privilege 4) Legal advice privilege (LAP) occurred in Three Rivers), then take place between a lawyer or (LPP) confers on a client a privi- arises in respect of a confidential there was no basis to confine the a client and a third party for the lege of exemption from disclo- communication or a continuum entitlement to claim privilege to dominant purpose of prepar- sure of communications that of communications, or a refer- a limited group of employees. ing for litigation, whether exist- may otherwise be required to be ence to such communications, As a result, the court considered ing or reasonably apprehended revealed. The party asserting the which takes place between a that all staff were deemed to be (Artisan Glass Studio v Liffey Trust existence of LPP bears the onus professionally qualified lawyer authorised to communicate with [2018] IEHC 278). Communica- of justifying the claim. Unlike and a client, in the course of a the lawyers for the purpose of tions may be written or oral and other forms of privilege, once professional legal relationship, in attracting LAP. may, for example, include photo- LPP has been established on the which legal advice is sought and/ graphs (Hansfield Developments v facts of a case, it is inviolate and or received. Professionally qualified lawyer: Irish Asphalt [2009] IEHC 420). there is no judicial discretion to 7) The definition of ‘lawyer’ displace it. LPP encompasses Communication containing legal encompasses a solicitor, a bar- Communication with third parties: two distinct forms of privilege: advice: rister, a salaried in-house legal 10) It is generally accepted that legal advice privilege (LAP) and 5) LAP only extends to protect adviser, a foreign lawyer and potential witnesses, including litigation privilege (LP). communications that contain the attorney general (McMahon experts, qualify as third parties. legal advice as to a person’s legal v Irish Aviation Authority [2016] Hence, draft or rejected witness Status of LPP rights and liabilities and does not IEHC 221). The UK Supreme statements are covered. Final 2) LPP is a common law right, apply to the provision of legal Court has held that other pro- statements may become part copper-fastened in many assistance (Smurfit Paribas Bank fessionals who are not lawyers of disclosure required under instances by statute. Further, Ltd v AAB Export Finance Ltd will not attract the protection of the rules of court. There is also LPP has a constitutional foun- [1990] 1 IR 469). Legal assis- LAP, even where those persons some support for the view that dation that elevates it beyond tance includes, for example, the are dispensing legal advice to LP covers the ‘work product’ a mere rule of evidence. LPP drafting of contracts or docu- their clients (R (on the application of a lawyer preparing for litiga- gazette.ie Law Society Gazette July 2020 Practice notes BRIEFING 57 tion – including draft pleadings, 315, involving investigations by of ‘the same or closely related shared among a group of con- draft written legal submissions, the Financial Regulator and the proceedings’ (Ryanair v Revenue nected companies; and in Hans- internal memoranda and notes – ODCE). Commissioners [2018] IECA 222). field Developments v Irish Asphalt notwithstanding the absence of This may be contrasted with Ltd [2009] IEHC 420, where the any communication with a third Avoidance of litigation: LAP, where a communication advice was shared with a sepa- party (McGrath on ‘Evidence’ (2nd 14) Communications may attract that is once privileged is always rate company that, nonetheless, ed, 2014), §10.99). LP in circumstances where they privileged. shared an interest in the pro- take place as a means of avoid- ceedings). Dominant purpose test: ing contemplated litigation by Preservation of privilege 11) In applying the ‘dominant compromise, in the same way where disclosure made to Stipulations of confidentiality: purpose’ test, the court takes an that LP traditionally applies to third party 20) Practitioners should be objective approach. In Colston v communications that take place 17) Apart from cases in which aware, however, that in all cases Dunnes Stores [2019] IECA 59, as a means of preparing for liti- a party to litigation expressly where privilege was upheld, the Court of Appeal held that gation (Horgan v Murray [1999] deploys a privileged document confidentiality agreements were the evidence required in order to 1 ILRM 257). ‘Without preju- for their own use at trial, in entered into between the parties discharge the evidential burden dice’ privilege may also protect which case the privilege is lost and the documents were sup- that rested on a party asserting communications being sent in a (Hannigan v DPP [2001] 1 IR plied without prejudice to the LP should be of sufficient quality bona fide attempt to settle with 378), the courts are reluctant entitlement to continue to claim and character to allow the court opponents where the intention to infer any implied waiver of privilege. Privileged documents to make definitive findings about is that, if negotiations fail, the privilege in circumstances where should only be disclosed to third the motivation and/or intention communication will not be dis- documents are disclosed to third parties on that basis. of the creator of the document closed without the consent of the parties. The general rule is that over which privilege is main- parties. Communications over privilege will not be lightly over- Joint interest privilege: tained. A bald assertion as to the which such privilege is claimed borne as a result of disclosure, 21) Joint interest privilege pro- dominant purpose of a document should be headed ‘without preju- in the absence of an intention vides a further basis upon which or the subjective state of mind of dice’. to abandon the privilege. While the privilege in documents may the party asserting privilege was disclosure can defeat privilege, it be preserved. It has been held to not sufficient without evidence Report prepared pursuant to a is not bound to do so. Privilege be the basis upon which a share- to support them. To discharge statutory obligation: may be found to be preserved in holder is entitled to see legal the evidential burden, the evi- 15) The High Court recently a number of ways. advice received by the company dence must be of such quality rejected a claim of LP asserted of which they are a shareholder and character as to enable the in respect of reports prepared by Limited disclosure for particular (Carlo Tassara Assets Manage- court to make definitive find- the official assignee of a bank- purpose: ment SA v Eire Composites Teo- ings about the motivation and/ rupt, in circumstances where 18) Privilege may be preserved ranta [2016] IEHC 103). The or intention of the creator of any the examination of the witnesses on the basis that there has been shareholder remains entitled to document in respect of which – from which the reports were limited disclosure for a particu- see that advice, even where they privilege is claimed. What was then formulated – had taken lar purpose (as in Fyffes v DCC subsequently enter into litigation required was a detailed affidavit place pursuant to a statutory [2005] 1 IR 59, where documents with the company. However, explaining “the nature, genesis obligation under section 21 of were disclosed to a regulator, and the shareholder’s entitlement and purpose of the documents in the Bankruptcy Act 1988 (Lehane Woori Bank v KBD [2005] IEHC does not extend to seeing advice issue”. v Yeserb Holdings [2019] IEHC 451, where documents were dis- obtained by the company in rela- 4). However, central to the closed to the public prosecutor’s tion to the litigation with the Nature of litigation: court’s decision was the statutory office). shareholder. 12) Litigation need not be adver- requirement that the examina- sarial in nature for LP to apply tions take place in open court, Common interest privilege: Voluntary waiver of privilege: (Ahern v Mahon [2008] 4 IR 704). thereby negating the requisite 19) Privilege may be preserved 22) Practitioners should be aware condition of confidentiality nec- on the basis of common inter- that a voluntary waiver of privi- Regulatory or investigatory essary to support any claim to est privilege, where the party lege in respect of a selection of privilege: privilege. Confidentiality will be to whom the documents were documents, whether disclosed 13) A form of LP, described as a relevant consideration on the disclosed was deemed to have a pre-trial or during the course of ‘regulatory’ or ‘investigatory’ facts of each case. common interest in the advice or litigation, may result in a waiver privilege, may also be validly progress of the litigation (as in being implied in respect of the asserted in respect of com- Termination of litigation privilege: Redfern v O’Mahony [2009] 3 IR remaining undisclosed privileged munications that take place in 16) LP is temporal in scope and 583, where the third parties were documents, where otherwise an response to a regulatory inves- ends upon the termination of the parties to the same commercial unfairness or litigious disadvan- tigation undertaken by a law litigation in respect of which it transaction; in Moorview Devel- tage could accrue to the oppos- enforcement agency (Ciara was asserted. It may only sub- opments v First Active plc [2009] ing party (Quinn v IBRC [2019] Quinn v IBRC [2015] IEHC sequently be asserted in respect 2 IR 788, where the advice was IEHC 89). 58 BRIEFING Practice notes July 2020 Law Society Gazette gazette.ie
Loss of legal professional investigation into a firm of audi- 26) Recent cases have high- of foreign law will be determined privilege tors – which exempted a person lighted the importance of prop- by reference to the lex fori (In Re 23) LPP may be lost in a number to whom a request for docu- erly articulating claims to LPP Duncan [1968] P 306) – that is, of circumstances: ments was made from disclosing in the affidavit of discovery the law of the country in which a) Where there is an intention those documents to the regulator (Gallagher v RTÉ [2017] IEHC the action is taken. to abandon the privilege in a where they were protected by 237]; Quinn v IBRC [2015] communication (Hannigan v LPP – an exception should be IECA 84 and Ryanair v Chan- Summary of solicitors’ duties DPP [2001] 1 IR 378), made where (i) the request for nel 4 [2018] 1 IR 734). Practi- 29) Solicitors’ principal duties b) Where the privilege is over- information comes from a regu- tioners should individually list with regard to the law of privi- ridden by the express language lator, (ii) the regulator is bound and date each item in respect lege may be summarised as fol- of statute (see, for example, by duties of confidentiality in of which the claim is made and lows: section 45 of the Courts and its use of the information, and provide a meaningful narrative, a) A solicitor is under a duty to Court Officers Act 1995), (iii) the holder of the privilege is containing as detailed a descrip- advise the client that they have c) Where the communication other than the person who is at tion as possible, in respect of a right to assert a claim to LPP is used to further a criminal risk of some adverse finding as a the document and the nature of and to make an assessment, or fraudulent purpose, even result of the use of the informa- the privilege asserted, consistent based on the current state of where the lawyer is not party tion by the regulator. with the non-infringement of the the law, as to whether a valid to or even aware of the pur- The Court of Appeal, in privilege. In the absence of same, claim to LPP has arisen on the pose to which his client intends rejecting the FRC’s formula- opposing parties are unable to facts before them, to put the communication tion of these exceptions to LPP, assess whether privilege has been b) A solicitor is under a duty to (Hussain v Garda Commissioner reiterated that any incursions correctly asserted and whether it assert a claim to LPP on the [2016] IEHC 612), into the law of privilege must may be susceptible to challenge. client’s behalf, d) In some proceedings involving be principled and clear so as not c) Insofar as it is the privilege of the welfare of children (TL v to undermine the confidence of Onus on solicitors to swear the client and not the solici- VL [1996] IFLR 126), the client in non-disclosure. In verifying affidavits: tor, a solicitor is under a duty e) In disputes regarding testa- addition, it reaffirmed that there 27) In more than one case in to maintain the confidentiality mentary dispositions (Russell v are no exceptions to LPP other which privilege has been asserted of privileged communications Jackson (1851) 9 Hare 387), and than the well-established iniq- in respect of large amounts of that take place between them- f) Though it has not been tested uity exception and the circum- documents, the courts have selves and their client, and in this jurisdiction, there is stance of the clear abrogation of directed the solicitor advising must not disclose the commu- authority in the common law privilege by statute, either by the the party making discovery to nications without the express world that supports the view use of express language or neces- swear an affidavit verifying that consent of the client, that the privilege may be lifted sary implication. The court con- they have reviewed each item d) In circumstances where it is in cases in which the inno- cluded that the language of the over which privilege has been evident that privileged docu- cence of an accused person is statute was clear and entitled the claimed and that, in the solici- ments were disclosed in error, at stake. auditor or the auditor’s clients to tor’s professional judgement, the the solicitor should make all withhold legally privileged mate- claims are correctly made (Quinn reasonable attempts to return Statutory powers of rial from the regulator. v IBRC [2015] IECA 84 and the documents and should not regulators to request legally Ryanair v Channel 4 [2018] 1 IR make use of them (a court will privileged documents Data protection 734). Commentators have noted determine that matter based 24) A recent attempt by the 25) The Data Protection Act 2018 that “this is a novel approach to on what a hypothetical reason- Financial Reporting Council copper-fastens the right to assert privilege and appears to place a able solicitor would do, even if (FRC) to carve out a ‘no infringe- LPP in the face of requests for significant onus on the solicitor it were not evident to the indi- ment exception’ or a ‘technical data made by both the Data Pro- advising a party making discov- vidual solicitor), infringement exception’ to LPP, tection Commission (see sections ery” (Abrahamson, Dwyer and e) A solicitor must ensure that in circumstances where a regula- 132, 138 and 151) and data sub- Fitzpatrick, Disclosure, 3rd edition, claims to LPP, made in the tor exercises a statutory power to jects (see section 162). Provided 2019). second part of the first sched- request documents in the context that the data would be exempt ule of the affidavit of discov- of an investigation into a regu- from production in court pro- International aspects of the ery, are sufficiently articulated, lated body, was rejected by the ceedings on the ground of LPP, law of privilege and UK Court of Appeal in Sports the exemption will provide a 28) Though the question has f) A solicitor should take steps to Direct International plc v The valid basis upon which to refuse not been directly decided in an rectify the affidavit of discov- Financial Reporting Council [2020] to disclose the documents under Irish case, the courts in England ery if it comes to their atten- EWCA Civ 177. the act. and Wales have held that, where tion that LPP has been incor- The FRC had argued that, proceedings are instituted before rectly claimed in respect of a in spite of the clear language of Areas of recent interest the English courts, the status of document or should have been the statutory scheme pursuant Criticism of blanket claims to a privileged communication that claimed in respect of a docu- to which it was conducting an privilege: contains legal advice in respect ment. gazette.ie Law Society Gazette July 2020 Practice notes BRIEFING 59
GUIDANCE AND ETHICS COMMITTEE AND IN-HOUSE AND PUBLIC SECTOR COMMITTEE LEGAL PROFESSIONAL PRIVILEGE AND IN-HOUSE COUNSEL
This practice note is the second ment department, a local author- have a multiplicity of roles or Advice furnished on business in a series of two on legal pro- ity, an industrial concern or any functions within a company” (at matters fessional privilege (LPP). This single employer, and the position paragraph 7). 8) Even where the in-house practice note explores further of a legal adviser who practises counsel is consulted in their best practice guidance on the his profession independently and The test: capacity as a professionally quali- application of LPP for solicitors is rewarded for his services by 5) The court formulated a test fied lawyer, the nature of their working in-house in the private fees”. for the determination of ques- role and knowledge of the affairs and public sectors and should be tions arising in Irish law as fol- of the company may result in the read in conjunction with the first 3) Therefore, the guidance con- lows: “Does the evidence dis- ambit of the advice furnished by practice note. tained in the above practice note close that, at the material time, them extending beyond purely These practice notes represent on the subject of legal profes- the person claiming legal profes- legal advice, to include advice on guidance on best practice for practi- sional privilege applies with sional privilege was in fact acting commercial or strategic matters. tioners in the area of LPP and do equal force to in-house counsel as an independent legal adviser Ochre Ridge Ltd v Cork Bonded not constitute legal advice. insofar as they constitute profes- to his employer? If the evidence Warehouses Ltd [2004] IEHC 160 sionally qualified lawyers under discloses that he acted in such a demonstrates that LPP will not In-house counsel as ‘profes- Irish law. capacity, then his communica- attach to advice furnished by a sionally qualified lawyer’ tions are privileged. If, on the lawyer in respect of business or 1) Irish law does not draw any In-house counsel performing other hand, the evidence shows commercial matters and will only distinction between in-house multiplicity of functions that he was acting as a principal vest in communications contain- legal counsel and external legal 4) Frequently, in-house counsel rather than as a legal adviser, then ing legal advice. Where advice counsel for the purposes of the will hold a number of positions the privilege may not attach” (at covering mixed content is pro- application of the law of legal and perform a variety of func- paragraph 9). vided by the in-house counsel, professional privilege (LPP). tions for their corporate client, it is prudent practice to maintain The High Court recently con- including those of an executive 6) It should be noted that the the different advices on separate firmed their qualifying status or management nature, in addi- Court of Appeal in BMO REP documents in order to safeguard in this jurisdiction, noting that tion to the role they occupy Asset Management plc v Friends the privileged status of any legal “the definition of ‘lawyer’ for as in-house legal adviser. F&C First Managed Pension Funds advice given. this purpose includes solicitors, Reit Property Asset Management Ltd [2018] IECA 357 allowed barristers, salaried in-house legal plc v Friends First Managed Pen- the plaintiff’s appeal in circum- The corporate client advisers, foreign lawyers and the sion Funds Ltd [2017] IEHC 383 stances where the court was The English decision in Three Riv- attorney general” (McMahon v demonstrates that the courts will provided with evidence on affi- ers (No 5): Irish Aviation Authority [2016] require to be satisfied that the davit that explained the legal role 9) The decision of the English IEHC 221, at paragraphs 16-17). in-house counsel was dispensing occupied by the general coun- Court of Appeal in Three Rivers legal advice in their capacity as sel and the capacity in which District Council v Governor and 2) The origin of the principle, a professionally qualified lawyer, he provided legal advice to the Company of the Bank of England which applies to in-house coun- as distinct from dispensing legal company. On this basis, the court (No 5) [2003] QB 1556 has cre- sel practising in both the private advice in their capacity as a ‘man was satisfied that, at all relevant ated difficulties in England and and public sector, may be found of business’, in order to attract times, the in-house counsel was Wales with regard to the iden- in the decision of the Supreme the protection of LPP. The case acting in his role as legal adviser tification of the employees of Court in Geraghty v Minister involved a challenge to commu- to the company, rather than as a a corporate entity who may be for Local Government [1975] IR nications that had taken place man of business. regarded as authorised emana- 300 (at p312), in which Grif- with the plaintiff company’s gen- tions of the corporate client for fin J approved of the decision eral counsel, who also held the 7) Practitioners must, therefore, the purposes of communicating reached by the English Court position of partnership secretary be scrupulous to make the dis- with the company’s lawyers. In of Appeal in Alfred Crompton within the company. Murphy J tinction and ensure that any con- that case, the Court of Appeal Amusement Machines Ltd v Cus- noted that “the courts have had sultation with them for the pur- determined that only those toms and Excise Commissioners (No no difficulty in deciding those poses of obtaining legal advice employees of the Bank of Eng- 2) [1972] 2 QB 102, in which it cases where an organisation has a takes place in circumstances land who had been expressly was held that “there can be no separate legal department whose where it can be demonstrated authorised to communicate difference between the posi- purpose is to advise the organisa- that they were being consulted in with the bank’s lawyers – those tion of a full-time salaried legal tion … more difficult are those their capacity as a professionally employees forming what was adviser employed by a govern- cases where a lawyer appears to qualified lawyer. known as the ‘Bingham Inquiry 60 BRIEFING Practice notes July 2020 Law Society Gazette gazette.ie
Unit’ – could attract the protec- employees of the broadcasting from external counsel for a num- losing LPP where the privileged tion of LPP, to the exclusion of company, as well as those com- ber of reasons, including taking status of the communication falls all others. The recent Court of munications that took place expert advice from specialists to be determined by reference to Appeal decision in SFO v ENRC with the employees of an inde- on complex areas of law, which the law of another jurisdiction. [2019] 1 All ER 1026 has con- pendent production company results in a flow of communi- firmed that Three Rivers (No 5) – to whom the production of a cations between the in-house Approach adopted in England still represents the law in Eng- television programme had been counsel, the external counsel, and Wales: land and Wales. Commentators outsourced – on the basis of the and the client. McMahon v Irish 16) The lex fori is the approach have noted that the question of decision in Three Rivers (No 5). Aviation Authority [2016] IEHC adopted in England and Wales the identification of the cor- Meenan J distinguished Three 221 demonstrates that the cloak with the result that, in proceed- porate client has particular rel- Rivers (No 5), reasoning that the of LAP will extend to cover this ings before an English court, evance – and potentially poses decision was predicated on the ‘continuum’ of communica- the English rules of LPP are more problems – for in-house Bank of England’s creation of tions, which, in that case, had applied to the determination of counsel, who often advise com- a designated unit of employees involved legal advice passing questions arising in respect of pany employees daily, on an ad who were solely and expressly between senior personnel in the foreign advice furnished by a for- hoc basis, without any clarity as to authorised to communicate with defendant authority, its in-house eign lawyer (Re Duncan [1968] P the employees’ authorised status the bank’s lawyers. Absent the solicitor, and the external law 306). Though it did not concern to give instructions and obtain establishment of a special unit firm from whom advice had been communications with in-house advice (Bankim Thanki (ed), The within Channel 4 or any express sought. counsel, the English High Court Law of Privilege, 3rd ed, 2018). authorisation conferred on indi- case of RBS Rights Issue Litiga- vidual employees, all staff were Freedom of information tion [2017] 1 WLR 1991 dem- Nuanced approach where communi- deemed to be authorised to com- 14) Section 31(1)(a) of the onstrates that communications cations with in-house counsel: municate with the lawyers for the Freedom of Information Act with US lawyers, which would 10) However, the English High purpose of attracting LAP: “In 2014 obliges a body to whom a have been protected under the Court has refused to apply Three the absence of any evidence that request for information has been more generous American rules of Rivers (No 5) in a number of cases there was such a ‘special unit’ in made to refuse to grant that LPP, may not be protected when involving communications with Channel 4, this submission is not request if the record concerned determined in accordance with in-house counsel, demonstrating sustainable” (per Meenan J at would be exempt from produc- the law of England and Wales. a nuanced approach in that juris- paragraph 87). tion in proceedings in a court on diction with regard to this partic- the ground of legal professional Communications with in-house ular category of lawyer. In AB v 12) In arriving at this decision, privilege. counsel under EU LPP Ministry of Justice [2014] EWHC the court also had regard to the 17) The EU rules on LPP – for- 1847 and Menon v Herefordshire submissions made by Channel Proceedings arising in a mulated in the case of AM&S v Council [2015] EWHC 2165, the 4 to the effect that its lawyers foreign jurisdiction Commission [1982] ECR 1575 decision was distinguished and “were providing advice in their 15) Laws of LPP vary from and Akzo Nobel Chemicals v Com- confined to its own facts on the professional capacity as lawyers, country to country and may pro- mission [2010] 5 CMLR 19 – basis that the Bingham Inquiry specifically tasked with giving tect communications to a greater apply to written communications Unit represented the only group advice on the programme … or a lesser extent than in this that take place with an indepen- of employees authorised to com- Advice was sought from these jurisdiction. In particular, some dent lawyer, who is qualified to municate with the legal advisers. lawyers by others within Chan- jurisdictions, including France practise his or her profession In the absence of any express nel 4 and employers of the sec- and Germany, afford less protec- within one of the member states authorisation conferred on indi- ond-named defendant on the tion to communications that take of the European Union, for the vidual employees on the facts basis that they were consulting place with in-house counsel. In purposes and in the interest of of the cases before them, it was their own lawyer, specially tasked circumstances where proceed- the client’s right of defence. The implicit that all employees had with giving them legal advice” ings were to arise in a particular ‘independent lawyer’ is defined authority to seek legal advice of (at paragraph 83). Thus, for the jurisdiction, it is possible that as one who is not bound to his the nature and extent that they present, Three Rivers (No 5), and the lex fori (law of the forum) – or her client by a relationship of did from the in-house counsel. the restrictive definition of the rather than the law of the coun- employment. As such, in-house corporate client, has not been try in which the communication counsel do not qualify as lawyers The corporate client in Ireland: followed in Irish law. Each case was made – would apply to the for the purposes of the EU law 11) The same reasoning was will, however, fall to be deter- determination of any questions of privilege. This remains the adopted by the Irish High Court mined on its own facts. of LPP arising. This could have case, notwithstanding the fact in Ryanair v Channel 4 [2018] 1 the effect of depriving a com- that in-house counsel in some IR 734, which rejected Ryanair’s Communications between munication of LPP that would jurisdictions may be members of claims that LAP could not be in-house counsel and external have applied had the proceed- their national bar associations or asserted in respect of communi- counsel ings taken place in Ireland. In- law societies and, thus, bound by cations that took place between 13) In-house counsel will often house practitioners, in particular, professional rules regarding con- Channel 4’s lawyers and all be required to obtain legal advice should be aware of the risks of duct and ethics. gazette.ie Law Society Gazette July 2020 Practice notes BRIEFING 61
18) The EU rules of LPP were legal work the lawyer performs it must be from a lawyer qualified manifestly detrimental effect on developed by the CJEU in pro- or the nature of the European to practise within the EU for the his capacity to carry out the task ceedings in which the status of legal proceedings in which the privilege to apply. of defending his client while act- privileged documents – which issue arises” (Heffernan, Legal ing in that client’s interests to the had been obtained in the course Professional Privilege, Bloomsbury 20) It is unclear whether a recent greatest possible extent (§64). of an investigation by the Euro- Professional (2011), §2.50) decision of the Grand Chamber The CJEU held that the Uni- pean Commission into alleged of the CJEU will have any relax- versity of Wroclaw was accord- contraventions of EU competi- 19) Care will therefore need to ing effect on the absolutist, exclu- ingly entitled to be represented tion law – arose for consider- be taken by in-house practitio- sionary nature of the case law by a lawyer who was connected ation. Though the precedents ners who work for companies outlined above. In the joined cases to the university by a contract for are technically confined to the that operate within the reach of of C-515/17P and C-561/17P lecturing services. He was not in context of investigations con- EU competition law and, where (Uniwersytet Wroclawski v REA a hierarchical relationship with ducted in that scenario, some necessary, advice should be taken ECLI:EU:C:2020:73), the CJEU the university and did not hold a commentators have expressed from external counsel in order to held, in the context of article 19 high-level management position the view that “the decision may mitigate the risks of losing LPP of the Statute of the Court of Jus- within the university. However, have a spill-over effect should the in advice furnished to the com- tice of the European Union, which given that the decision concerned issue of privilege surface in other pany. The procurement of exter- sets out the rules pursuant to the interpretation of the statute, areas of EC law … It is signifi- nal legal advice has the undesir- which lawyers may represent rather than questions regarding cant in this regard that the prin- able effect of increasing a com- parties in proceedings before the application of LPP, it seems ciple on which the decision rests pany’s legal costs, notwithstand- the EU courts, that the lawyer’s unlikely that the EU rules of LPP was enunciated in sufficiently ing its retention of a dedicated duty of independence was to be applicable to in-house counsel broad and general terms that it in-house counsel or department. understood not as the lack of any have changed in the absence of an could potentially apply to any Indeed, it is worth recalling that, connection whatsoever between express departure from the prin- scenario involving an in-house where the external advice is the lawyer and his client, but the ciples laid down in AM&S and lawyer, regardless of the kind of sought by the in-house counsel, lack of connections that have a Akzo Nobel.
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LSPT Gazette ad July 2020 Combined.indd 1 12/06/2020 18:33 gazette.ie Law Society Gazette July 2020 Regulation BRIEFING 63 SOLICITORS DISCIPLINARY TRIBUNAL
REPORTS OF THE OUTCOMES OF SOLICITORS DISCIPLINARY TRIBUNAL INQUIRIES ARE PUBLISHED BY THE LAW SOCIETY OF IRELAND AS PROVIDED FOR IN SECTION 23 (AS AMENDED BY SECTION 17 OF THE SOLICITORS (AMENDMENT) ACT 2002) OF THE SOLICITORS (AMENDMENT) ACT 1994
In the matter of Michael relation to named properties, Solicitors Disciplinary Tribu- February 2016, Doody, solicitor, principal at 3) Failed to comply adequately nal [2017/DT84, 2017/DT87 3) Failed to respond adequately Doody Solicitors, 21 South or at all with an undertak- and 2017/DT88; High Court or at all to a letter from the Mall, Cork, and in the mat- ing dated 12 August 2008 in record 2019/12SA] Society dated 14 April 2015. ter of an application by the respect of his named client in Law Society of Ireland Law Society of Ireland to the relation to a named property, (applicant) 2017/DT87 Solicitors Disciplinary Tri- 4) Failed to comply adequately or James (Seamus) Doody 1) Failed to comply ade- bunal [2017/DT85 and 2017/ at all with the directions of the (respondent solicitor) quately or at all with all or DT86; High Court record committee, in particular, the On 10 July 2018, the Solicitors part of an undertaking to 2019/11SA] directions dated 1 September Disciplinary Tribunal found the the complainant dated 14 Law Society of Ireland 2015, 3 November 2015 and 1 respondent solicitor guilty of September 2007 in respect (applicant) February 2016, misconduct in his practice as a of named clients in relation Michael Doody (respondent 5) Failed to respond adequately solicitor in the following mat- to a named property, solicitor) or at all to correspondence ters. 2) Failed to comply with the On 10 July 2018, the Solicitors sent to him from the Society, directions of the commit- Disciplinary Tribunal found the in particular, letters dated 14 2017/DT84 tee dated 3 November 2015, respondent solicitor guilty of April 2015. 1) Failed to comply adequately 11 February 2016 and 16 misconduct in his practice as a or at all with part of one or June 2016, solicitor in the following matters. The Solicitors Disciplinary Tri- more of the following under- 3) Failed to respond ade- bunal referred the matter for- takings to the complainant: quately or at all to letters 2017/DT85 ward to the High Court and, in a) Undertaking dated 11 from the Society dated 8 1) Failed to comply adequately record number 2019/11SA, the March 2007 in respect of July 2015, 5 August 2015 or at all with an undertaking High Court made the following his named clients in rela- and 25 August 2015. dated 12 October in respect of orders on 10 October 2019: tion to a named property, his named client in relation to 1) That the respondent solicitor b) Undertaking dated 1 April 2017/DT88 a named property, only be permitted to practise 2010 in respect of his 1) Failed to comply adequately 2) Failed to respond adequately under the direct control and named clients in relation to or at all with an undertaking or at all to letters dated 20 supervision of another solicitor a named property, dated 28 March 2005 to the November and 2 December of at least ten years’ standing, c) Undertaking dated 29 Sept- complainant in respect of his 2015 sent to him by the to be approved in advance by ember 2005 in respect of named client in relation to a Society, the Law Society, with a stay on his named clients in rela- named property, 3) Failed to respond adequately the order for a period of four tion to a named property, 2) Failed to respond adequately or at all to correspondence weeks, the respondent solici- d) Undertaking dated 12 Oct- or at all to a letter dated 20 from the complainant and, tor undertaking that, within ober 2006 in respect of November 2015 sent to him in particular, letters dated 12 the aforementioned four-week his named in relation to a by the Society, October 2011, 30 January period, no undertakings will be named property, 3) Failed to respond adequately 2012, 13 March 2014, 15 April given by him unless previously e) Undertaking dated 30 May or at all to correspondence 2014, 16 January 2015, 12 approved by the Law Society, 2008 in respect of his from the bank and, in par- February 2015, and an email 2) That the Law Society recover named client in relation to ticular, letters dated 21 June thread concluding with an the whole of the costs of a named property, 2010, 2 December 2010, 3 email dated 23 April 2015. the proceedings before f) Undertaking dated 19 November 2011, 2 May 2012, the Solicitors Disciplinary June 2008 in respect of his 23 May 2014, 24 June 2014, 2017/DT86 Tribunal and the High Court, named clients in relation to 16 January 2015, 12 February 1) Failed to comply adequately to be taxed in default of agree- a named property, 2015, and an email thread con- or at all with an undertaking ment. g) Undertaking dated 3 March cluding with an email dated 23 dated 15 May 2006 in respect 2014 in respect of his April 2015. of his named clients in relation In the matter of James (Sea- named clients in relation to to a named property, mus) Doody, solicitor, prac- a named property, The Solicitors Disciplinary Tri- 2) Failed to comply adequately tising in Doody Solicitors, 21 2) Failed to comply with the bunal referred the matter for- or at all with an undertaking South Mall, Cork, and in the directions of the committee ward to the High Court and, in dated 15 November 2006 in matter of an application by the dated 1 September 2015, 3 record number 2019/12SA, the respect of his named client in Law Society of Ireland to the November 2015 and/or 11 High Court made the following 64 BRIEFING Regulation July 2020 Law Society Gazette gazette.ie
orders on 18 October 2019: December 2013, correspondence sent to him by In respect of complaint five: 1) That the respondent solici- 4) Failed to comply with a direc- the complainant, including a 1) Failed to comply, up to the tor is not a fit person to be a tion of the Complaints and letter dated 8 August 2011, date of expiry of the stay on member of the solicitors’ pro- Client Relations Committee 3) Repeatedly failed to respond referral to the tribunal, with fession, dated 28 January 2014 to adequately or at all to some part or all of an undertaking 2) That the name of the respon- provide detailed informa- or all of the correspondence to the complainant dated 20 dent solicitor shall be struck tion in relation to the file and sent to him by the Society, October 2006 in respect of a from the Roll of Solicitors. to provide the Society with including letters dated 15 named property in a timely an update no later than 25 October 2012, 26 February manner or at all, In the matter of James (Sea- February 2014. 2013, 25 March 2013, 17 May 2) Failed to respond adequately mus) Doody, solicitor, prac- 2013, 16 August 2013, and 18 or at all to some or all of the tising in Doody Solicitors, In respect of complaint two: September 2013, correspondence sent to him by 21 South Mall, Cork, and 1) Failed to comply, up to the 4) Failed to comply with a direc- the complainant, including a in the matter of an appli- date of expiry of the stay on tion of the Complaints and letter dated 16 June 2011, cation by the Law Society of referral to the tribunal, with Client Relations Committee 3) Repeatedly failed to respond Ireland to the Solicitors Disci- part or all of an undertaking to dated 28 January 2014 to adequately or at all to some or plinary Tribunal [6285/DT172/ the complainant dated 31 May provide detailed informa- all of the correspondence sent 15, 6285/DT173/15, 6285/ 2004 in respect of a named tion in relation to the file and to him by the Society, including DT174/15, 6285/DT175/15, property in a timely manner or to provide the Society with letters dated 20 February 2013, 6285/DT176/15 and 6285/ at all, an update no later than 25 25 March 2013, 17 May 2013, DT177/15; High Court record 2) Repeatedly failed to respond February 2014. 16 August 2013, 18 September 2019/13SA] adequately or at all to some or 2013, 21 October 2013, 3 Jan- Law Society of Ireland all of the correspondence sent In respect of complaint four: uary 2014, 13 January 2014, (applicant) to him by the complainant, 1) Failed to comply, up to the and 14 February 2014. James (Seamus) Doody including letters dated 22 June date of expiry of the stay on (respondent solicitor) 2011 and 11 April 2012, referral to the tribunal, with In respect of complaint six: On 31 July 2018, the Solicitors 3) Repeatedly failed to respond part or all of an undertak- 1) Failed to comply, up to the Disciplinary Tribunal found the adequately or at all to some or ing to the complainant dated date of expiry of the stay on respondent solicitor guilty of all of the correspondence sent 23 March 2009 in respect of referral to the tribunal, with misconduct in his practice as a to him by the Society, including a named property in a timely part or all of an undertaking solicitor in the following matters. letters dated 15 October 2012, manner or at all, to the complainant dated 8 7 January 2013, 21 February 2) Failed to respond adequately December 2004 in respect of 6285/DT172/15 2013, 28 March 2013, 19 April or at all to some or all of the a named property in a timely In respect of complaint one: 2013, 8 May 2013, 9 August correspondence sent to him by manner or at all, 1) Failed to comply, up to the 2013, 19 September 2013, the complainant, including a 2) Failed to respond adequately date of expiry of the stay on 20 November 2013 and 6 letter dated 16 June 2011, or at all to some or all of the referral to the tribunal, with December 2013, 3) Repeatedly failed to respond correspondence sent to him by part or all of an undertak- 4) Failed to comply with a direc- adequately or at all to some the complainant, including a ing dated 12 March 2001 in tion of the Complaints and or all of the correspondence letter dated 8 August 2011, respect of a named property in Client Relations Committee sent to him by the Society, 3) Repeatedly failed to respond a timely manner or at all, dated 28 January 2014 to including letters dated 15 adequately or at all to some or 2) Failed to respond adequately provide detailed informa- October 2012, 7 January 2013, all of the correspondence sent or at all to some or all of the tion in relation to the file and 21 January 2013, 20 February to him by the Society, includ- correspondence sent to him by to provide the Society with 2013, 13 March 2013, 3 May ing letters dated 20 February the complainant, including a an update no later than 25 2013, 25 June 2013, 9 August 2013, 28 March 2013, 16 letter dated 3 October 2011, February 2014. 2013, 26 September 2013, 17 April 2013, 9 August 2013, 18 3) Repeatedly failed to respond October 2013, 21 November September 2013, 21 October adequately or at all to some In respect of complaint three: 2013, 19 December 2013 and 2013, 22 November 2013 and or all of the correspondence 1) Failed to comply, up to the 24 February 2014, 11 February 2013, sent to him by the Society, date of expiry of the stay on 4) Failed to comply with a direc- 4) Failed to comply with a direc- including letters dated 27 referral to the tribunal, with tion of the Complaints and tion of the Complaints and September 2012, 15 October part or all of an undertaking Client Relations Committee Client Relations Committee 2012, 7 January 2013, 21 to the complainant dated 7 dated 28 January 2014 to dated 28 January 2014 to January 2013, 20 February November 2007 in respect of provide detailed informa- provide detailed informa- 2013, 13 March 2013, 3 May a named property in a timely tion in relation to the file and tion in relation to the file and 2013, 24 June 2013, 10 July manner or at all, to provide the Society with to provide the Society with 2013, 17 September 2013, 2) Failed to respond adequately an update no later than 25 an update no later than 25 20 November 2013 and 6 or at all to some or all of the February 2014. February 2014. gazette.ie Law Society Gazette July 2020 Regulation BRIEFING 65
In respect of complaint seven: 4) Failed to comply with a direc- 2011 and/or 20 July 2011, 2010, 16 March 2011, 24 June 1) Failed to comply, up to the tion of the Complaints and 3) Failed to respond adequately 2011, 6 October 2011, 27 date of expiry of the stay on Client Relations Committee or at all to some or all of the January 2012, 16 April 2012, 12 referral to the tribunal, with dated 16 September 2014 to correspondence sent to him October 2012, 26 November part or all of an undertaking provide detailed information by the Society, including let- 2012, 30 November 2012 and/ to the complainant dated 17 in relation to the file and to ters dated 22 August 2012, 6 or 11 February 2013, February 2006 in respect of attend at the committee meet- December 2012, 28 January 3) Failed to respond adequately a named property in a timely ing dated 28 October 2014. 2013, 21 March 2013, 4 June or at all to some or all of the manner or at all, 2013, 17 October 2013, and 22 correspondence sent to him 2) Failed to respond adequately In respect of complaint nine: November 2013, by the Society dated 13 May or at all to some or all of the 1) Failed to comply, up to the 4) Failed to comply with the 2013, 17 September 2013, 21 correspondence sent to him by date of expiry of the stay on Complaints and Client October 2013, 26 November the complainant, including a referral to the tribunal, with Relations Committee’s direc- 2013 and/or 3 January 2014, letter dated 22 June 2011, part or all of an undertak- tion of 28 January 2014. 4) Failed to comply with the 3) Repeatedly failed to respond ing to the complainant dated directions of the committee adequately or at all to some or 1 March 2007 in respect of 6285/DT174/15 dated 28 January 2014 to fur- all of the correspondence sent named properties in a timely 1) Failed to complete, and/or nish certain documentation. to him by the Society, includ- manner or at all, to take all reasonable steps to ing letters dated 21 February 2) Failed to respond adequately complete, title registration in In respect of complaint two: 2013, 28 March 2013, 19 April or at all to some or all of the respect of a named property, 1) Failed to comply, up to the 2013, 17 September 2013, 20 correspondence sent to him 2) Failed to disclose to the com- date of the expiration of the November 2013, 6 December by the complainant, including plainant that, over a period of stay on the referral of this 2013 and 11 February 2014, letters dated 11 February 2009 seven years, he had not com- matter to the tribunal, with an 4) Failed to comply with a direc- and 10 June 2009, pleted the registration of her undertaking to the complain- tion of the Complaints and 3) Repeatedly failed to respond title, ant dated 13 December 2005, Client Relations Committee adequately or at all to some 3) Failed to respond to enquiries pertaining to a named prop- dated 28 January 2014 to or all of the correspondence made by the complainant’s erty in a timely manner or at provide detailed informa- sent to him by the Society, new solicitor in July 2013, all, tion in relation to the file and including letters dated 24 4) Failed to comply with assur- 2) Failed to respond adequately to provide the Society with February 2010, 7 April 2010, ances given by him to the com- or at all to some or all of the an update no later than 25 20 May 2010, 8 June 2010, plainant and the Law Society correspondence sent to him February 2014. 23 July 2010, 7 September that documents would be by the complainant dated 16 2010, 4 October 2010,8 lodged in the Land Registry, October 2009, 23 January In respect of complaint eight: November 2010, 16 October 5) Failed to respond adequately 2010, 2 February 2010, 28 1) Failed to comply, up to the 2012, 9 November 2012, 7 or at all to one or more let- June 2010, 30 November date of expiry of the stay on December 2012, 7 August ters sent to him by the Society, 2010, 9 March 2011, 21 June referral to the tribunal, with 2014, 28 August 2014 and 18 including letters dated 11 2011, 27 September 2011, 18 part or all of an undertak- September 2014, September 2013, 1 October January 2012, 18 July 2012, 26 ing to the complainant dated 4) Failed to comply with a direc- 2013, 17 October 2013, 2 November 2012, 1 February 21 March 2008 in respect of tion of the Complaints and January 2014, 11 February 2013, and/or 11 February 2013, a named property in a timely Client Relations Committee 2014, and 7 March 2014. 3) Failed to respond adequately manner or at all, dated 16 September 2014 to or at all to some or all of 2) Failed to respond adequately provide detailed information 6285/DT175/15 the correspondence sent to or at all to some or all of the in relation to the file and to In respect of complaint one: him by the Society dated 6 correspondence sent to him attend at the committee meet- 1) Failed to comply, up to the date June 2013, 28 June 2013, 16 by the complainant, including ing dated 28 October 2014. of the expiration of the stay on August 2013, 13 September letters dated 9 January 2012 the referral of this matter to 2013, 30 September 2013, 21 and 12 April 2012, 6285/DT173/15 the tribunal, with an undertak- October 2013, 2 January 2014, 3) Repeatedly failed to respond 1) Failed to comply with an ing to the complainant dated 3 February 2014 and/or 12 adequately or at all to some or undertaking given to the bank 25 April 2005, pertaining to March 2014, all of the correspondence sent in respect of a named property a named property in a timely 4) Failed to comply with the to him by the Society, includ- in a timely manner or at all, manner or at all, committee’s directions dated ing letters dated 21 February 2) Failed to respond adequately 2) Failed to respond adequately or 25 July 2013 to make a con- 2013, 28 March 2013, 19 or at all to some or all of the at all to some or all of the cor- tribution of €500 towards the April 2013, 17 July 2013, 17 correspondence sent to him respondence sent to him by the Society’s costs, September 2013, 17 August by the complainant/the bank, complainant dated 3 July 2007, 5) Failed to comply with the 2014, 29 August 2014 and 18 including letters dated 29 May 16 October 2009, 23 January committee’s directions dated September 2014, 2012, 2 May 2012, 13 October 2010, 1 June 2010, 7 December 25 July 2013 to furnish certain w w
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documentation, February 2014, 7 March 2014, 2001 given to the complainant November 2013, 11 February 6) Failed to comply with the 19 March 2014 and/or 13 in relation to a named prop- 2014 and/or 12 March 2014, directions of the committee August 2014, erty in a timely manner or at 4) Failed to comply with the dated 28 January to furnish 3) Failed to respond adequately all, Complaints and Client Rel- certain documentation. or at all to some or all of the 2) Failed to respond adequately ations Committee’s direc- correspondence sent to him by or at all to some or all of the tion dated 28 January 2014 6285/DT176/15 the Society, including letters correspondence sent to him to furnish the Society with 1) Failed to comply with dated 11 September 2014, 29 by the complainant and/or documentation relating to the his undertaking dated 24 September 2014, 5 November solicitors for the complain- undertaking detailed above. September 2007 to the com- 2014, and 26 November 2014, ant, including letters dated 22 plainant to deal with Land 4) Failed to comply with the August 2006, 22 August 2007, The Solicitors Disciplinary Tri- Registry queries in relation to Complaints and Client 20 February 2008, 6 July 2009 bunal referred the matter for- a named property in a timely Relations Committee’s direc- 10 March 2010, 9 June 2010, ward to the High Court and, in manner or at all, tion of 28 October 2014 to 9 August 2010, 19 October record number 2019/13SA, the 2) Failed to respond adequately make a contribution towards 2010, 14 June 2011 and/or 9 High Court made the following or at all to some or all of the the Society’s costs. November 2012, orders on 18 October 2019: correspondence sent to him 3) Failed to respond adequately 1) That the respondent solici- by the complainant, including 6285/DT177/15 or at all to some or all of the tor is not a fit person to be a letters dated 21 January 2008, 1) Failed to comply, up to the correspondence sent to him by member of the solicitors’ pro- 9 June 2008, 20 June 2012, 9 date of the expiry of the stay the Society, including letters fession, November 2012, 8 April 2013, on the referral of this matter to dated 26 February 2013, 25 2) That the name of the respon- 12 August 2013, 16 September the tribunal, with part or all of March 2013, 27 May 2013, 17 dent solicitor shall be struck 2013, 10 January 2014, 11 his undertaking dated 10 May July 2013, 16 October 2013, 22 from the Roll of Solicitors.
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“I cannot thank Make-A-Wish enough for coming into our lives. Having to cope with a medical condition every hour of everyday is a grind. But Make-A-Wish was amazing for all of us. To see your children that happy cannot be surpassed and we think of/talk about that time regularly bringing back those feelings of joy happiness and support.” Wish Mother
If you would like more information on how to leave a legacy to Make-A-Wish, please contact Susan O’Dwyer on 01 2052012 or visit www.makeawish.ie 68 PROFESSIONAL NOTICES July 2020 Law Society Gazette gazette.ie
WILLS Coughlan, Beatrice (deceased), RATES late of 18 Priory Court, Eden Gate, Delgany, Co Wicklow, and formerly of 20 Delgany Park, PROFESSIONAL NOTICE RATES Delgany, Co Wicklow, who died RATES IN THE PROFESSIONAL NOTICES SECTION ARE AS FOLLOWS: on 18 February 2020. Would any Wills – 155 (incl VAT at 23%) person having knowledge of a will • € executed by the above-named • Title deeds – €310 per deed (incl VAT at 23%) deceased or purported to have • Employment/miscellaneous – €155 (incl VAT at 23%) been made by the above-named deceased, or if any firm is hold- HIGHLIGHT YOUR NOTICE BY PUTTING A BOX AROUND IT – €30 EXTRA ing same, please contact Ed Allen, Rosemary Scallan & Co, Solici- ALL NOTICES MUST BE PAID FOR PRIOR TO PUBLICATION. ALL NOTICES MUST BE tors, Church Road, Greystones, EMAILED TO [email protected] and PAYMENT MADE BY ELECTRONIC FUNDS Co Wicklow; DX 205007 TRANSFER (EFT). The Law Society’s EFT details will be supplied following receipt of your Greystones; tel: 01 287 2905, email. Deadline for Aug/Sept 2020 Gazette: 10 August 2020. email: [email protected] No recruitment advertisements will be published that include references to ranges of post-qualification experience (PQE). The Gazette Editorial Board has taken this decision based on legal advice that indicates Cullen, Dermot (deceased), late that such references may be in breach of the Employment Equality Acts 1998 and 2004. of 46 Barnamore Park, Finglas, Dublin 11, and formerly of 203 Glasnevin Avenue, Dublin 11. Would any person having knowl- Miltown Malbay, Co Clare, and Lehane, Eileen (deceased), late Lower, Dun Laoghaire, Co Dub- edge of the whereabouts of a previously of 42 Elm Park, Ennis, of The Castlelands, Rathfarn- lin; tel: 01 280 3399, email: info@ will made by the above-named Co Clare, who died on 8 March ham, Dublin 14, and formerly of ocslegal.ie deceased please contact McIner- 2020. Would any person having Kanturk, Co Cork, who died on ney Solicitors, Cleggan House, knowledge of the whereabouts of 31 July 2019. Would any person McGirl, Maura (otherwise 46 Eyre Square, Galway; tel: a will made by the above-named having knowledge of the where- Mary) (deceased), late of Sacre 091 566 521/29, email: jenny@ deceased, please contact Pendred abouts of a will made by the Coeur, Charleville Road, Tul- mcinerneysolicitors.com & Co Solicitors, 2 Ballycasey above-named deceased, or if any lamore, Co Offaly. Would any Park, Shannon, Co Clare, email: firm is holding, same please reply person having knowledge of a Duffy, Felix Martin (deceased), [email protected] by email to: NMJenkins67@ will made by the above-named late of Carga, Ballybay, Co gmail.com deceased, who died on 16 March Monaghan, who died on 18 March Kivneen, John (deceased), late 2020, please contact McCanny & 2020. Would any person having of Newtown, Ballindine, Co Mayo Lowry, Philomena (otherwise Co, Solicitors, Pollexfen House, knowledge of any will made by who died on 17 January 2013. Phyllis) (deceased), late of 38 Wine Street, Sligo; tel: 071 914 the above- named deceased please Would any person having knowl- Cappagh Avenue, Finglas, Dublin 5928 or email: gerry@mccanny contact Coyle Kennedy Smyth edge of the whereabouts of any 11. Would any person holding or solicitors.com LLP, Solicitors, Thomas Street, will made or purported to have having knowledge of a will made Castleblayney, Co Monaghan; been made by the above-named by the above-named deceased, McMahon, Alice Rita (de- DX 71 002 Castleblayney; tel: deceased, or any firm is holding who died on 13 December ceased), late of 15 Brookwood 042 974 0010, email: lsmyth@ same, please contact Brian Jen- 2019, please contact Maurice Drive, Artane, Dublin 5, in the ckslaw.ie nings, Jennings & Co, Solicitors, O’Callaghan of O’Callaghan city of Dublin, who died on 1 Gilligan’s Lane, Town Hall Road, Legal Solicitors, Mounttown January 2020. Would any per- Gill, Peter (deceased), late Claremorris, Co Mayo; tel: 094 House, 62-63 Mounttown Road son having knowledge of the of Blainroe Nursing Home, 937 6652; email: info@jennings Kilpoole Lower, Blainroe, Co solicitors.ie Wicklow, formerly of 12 The Drive, Meadowvale, Arklow, Co Kivneen, Sabina (deceased), Wicklow. Would any person late of Newtown, Ballindine, Co having knowledge of the where- Mayo, who died on 18 September abouts of a will executed by the 2017. Would any person having above-named deceased, who knowledge of the whereabouts died on 1 March 2020, please of any will made or purported to contact Edel O’Brien, Maguire have been made by the above- McNeice Solicitors, 2 Eglin- named deceased, or if any firm is ton Road, Bray, Co Wicklow; holding same, please contact Brian tel: 01 286 2399, email: bray@ Jennings, Jennings & Co, Solici- maguiremcneice.com tors, Gilligan’s Lane, Town Hall Road, Claremorris, Co Mayo; Hehir, Brendan (deceased), late tel: 094 937 6652; email: info@ of 20 Lus na Si, Mullagh Road, jenningssolicitors.ie gazette.ie Law Society Gazette July 2020 69 PROFESSIONAL NOTICESNOTICES whereabouts of a will made by MISCELLANEOUS the above-named deceased please Start your own practice now – IS YOUR CLIENT INTERESTED contact Susan Martin of Martin ideal opportunity in Co Cavan for IN SELLING OR BUYING Solicitors, 1 Elmfield Rise, Clare- a qualified solicitor with suitable hall, Dublin 13; tel: 01 487 7170; experience to share a well-situ- A 7-DAY LIQUOR LICENCE? email: [email protected] ated premises in busy town. Reply to box number 01/06/20 email: [email protected] Murphy, Anne (deceased), late web: www.liquorlicencetransfers.ie of 10A Laurel Park, Newcastle, Solicitor, long and well-estab- Co Galway. Would any person lished, excellent Dublin 2 loca- Call: 01 2091935 having knowledge of a will made tion, with excess office space, one by the above-named deceased, or two rooms, approx 400 sq feet, who died on 10 June 2020, please offers excellent serviced or self- hold a superior interest in the days from the date hereof. contact John A Sinnott & Co, contained office space with view property is called upon to furnish Any person having any inter- Solicitors, Market Square, Ennis- to associated practice on commu- evidence of their title to the prop- est in the property superior to a corthy, Co Wexford; tel: 053 923 nity-of-interest terms. Excellent erty to the undersigned solicitors reversionary lease of 22 Novem- 3111, email: info@johnasinnott and experienced legal secretarial, within 21 days from the date of ber 1918 between Charles Scott solicitors.ie IT, accounts personnel, library, this notice. Bayley on the one part and James reception and meeting space. In default of any such notice Kennedy of the other part, of Walsh, Michael (deceased), late Please contact Robert at 087 765 being received, the applicant property at Gurteenaspig front- of 3 St Ignatius Avenue, Dublin 3543 or email dlawoffice4@gmail. intends to proceed with the appli- ing the road called the Magazine 7, who died on 12 September com. Discretion assured. cation before the county registrar Road in the parish of Saint Fin 2019. Would any person having at the end of 21 days from the Barre and barony and county of knowledge of any will made by TITLE DEEDS date of this notice and will apply Cork, and now known as West- the above-named deceased please In the matter of the Landlord to the county registrar for the bourne Park, Magazine Road, in contact Peter Gartlan, solicitor, and Tenant (Ground Rents) Acts county of Cork for directions as the city of Cork, should provide 56 Lower Dorset Street, Dublin 1967-2019 and in the matter may be appropriate on the basis evidence to the below named. 7; tel: 01 855 7434; DX 105 004; of an application by Patrick that the persons beneficially In default of such informa- email: [email protected] Delaney in respect of the entitled to the superior interests tion being received, the applicant premises known as 3 Jessyville, including the freehold reversion intends to proceed with the appli- Wearen, Francis (deceased), Summerhill South, in the city in the property are unknown and cation before the county registrar late of Swords Nursing Home, of Cork unascertained. and will apply to the county reg- Swords, Co Dublin, and formerly Take notice that any person hav- Date: 3 July 2020 istrar for the county of Cork for of 23 Thatch Road, Whitehall, ing a freehold interest or any Signed: PP Ryan & Co (solicitors for directions as may be appropriate Dublin 9, who died on 20 January intermediate interest in all that the applicant), Rathdowney, Co Laois on the basis that the person or 2020. Would any person having and those the property known as persons entitled to the superior knowledge of the whereabouts 3 Jessyville, Summerhill South, In the matter of the Landlord interest including the freehold of any will made or purported in the city of Cork (hereinafter and Tenant (Ground Rents) Acts interest in the said premises are to be made by the above-named known as ‘the property’), being 1967-2005 and in the mat- unknown and unascertained. deceased, or if any firm is hold- the land demised and held by ter of the Landlord and Tenant Date: 3 July 2020 ing same, please contact Ger- a lease dated 14 January 1938 (Ground Rents) (No 2) Act 1978 Signed: Jerome A McCarthy & Co, rard L McGowan Solicitors, The and made between William F and in the matter of property Solicitors (solicitors for the appli- Square, Balbriggan, Co Dublin; O’Connor of the one part and known as the lands of Gur- cants), 10C South Bank, Crosses DX 96001 Balbriggan; tel: 01 841 Michael J O’Connor of the other teenaspig, now known as the Green, Cork 2115, email: [email protected] part for the term of 150 years yard, at 16 Westbourne Park, from 25 December 1937 and sub- Magazine Road, in the parish In the matter of the Landlord Weldon, Kenneth Joseph (de- ject to the yearly rent of ten Irish of Saint Fin Barre and city of and Tenant Acts 1967-2005 and ceased), late of 3 Richmond Park, pounds (£10) and to the covenants Cork, and in the matter of an in the matter of the Landlord Wexford Town; 120 Charlemont, on the part of the lessee and to the application by Henry Thornhill and Tenant (Ground Rents) (No Griffith Avenue, Dublin; and 1 conditions therein respectively Take notice that any person hav- 2) Act 1978 and in the matter Boland’s Cottages, East Wall, reserved, should give notice of ing an interest in any estate in of an application by Deirdre Dublin 3. Ken was a good and their interest to the undersigned the above property that Henry Lavelle (otherwise known as decent man and we want to make solicitors. Thornhill (the applicant) intends O’Gorman) and Malachy Louis sure that his last wishes are ful- Take notice that Patrick to submit an application to the Lavelle filled. Sadly, Ken passed away sud- Delaney, of the Ossory, Rath- county registrar of the county of Take notice that any person hav- denly on 15 June 2018. He made downey, Co Laois, being the per- Cork for the acquisition of the fee ing any interest in the freehold an updated will with a Dublin son now entitled to the lessee’s simple interest and all intermedi- estate of the following property: solicitor in 2009 and then again interest in the property, intends ate interest in the aforesaid prop- all that and those the heredita- in 2016. Please contact Peggy to submit an application to the erty, and any person asserting that ments and premises situate at and Weldon, 14715 Yearling Terrace, county registrar for the county they hold a superior interest in known as 4a Saint Patrick’s Road, Rockville, Maryland 20850, of Cork for the acquisition of the the property is called upon to fur- Dalkey, in the borough of Dun USA; tel: +1 240 506 5534, email: freehold interest in the property, nish evidence of title to the prem- Laoghaire and county of Dublin, [email protected] and any party asserting that they ises to the below named within 21 being portion of the property for- 70 PROFESSIONAL NOTICES July 2020 Law Society Gazette gazette.ie
merly known as 3 Saint Patrick’s In the matter of the Landlord Greybirch Limited in respect Road, Dalkey, in the borough and Tenant (Ground Rents) Acts of 5 George’s Quay, Dublin 2 Require assistance of Dun Laoghaire and county 1967-2019 and in the mat- Take notice that any person hav- in Northern Ireland of Dublin, which said heredita- ter of the Landlord and Tenant ing any interest in the freehold for the purpose ments and premises are more par- (Ground Rents) No 2 Act 1978 estate or any intermediate inter- of litigation? ticularly delineated and described and in the matter of an applica- ests in the following property at on the map annexed hereto and tion by QMK Dublin Limited 5 George’s Quay, Dublin 2, held thereon coloured red, and all that Take notice that any person hav- under a lease dated 2 July 1789 Northern Ireland lawyers, and those the hereditaments and ing any interest in the freehold between Thomond Clarke of the Kearney Law Group, premises being the plot of ground estate or any intermediate inter- one part and Anthony O’Reilly of are interested in dealing immediately adjoining the here- ests in the following property: the other part from 5 April 1789 with all civil litigation ditaments and premises described known as 19 Moore Lane, Dublin for the term of 999 years, subject claims for those who have suffered injury in in the first part of the schedule 1, held under indenture of lease to the yearly rent therein men- Northern Ireland. hereto, and which said heredita- dated 7 June 1958 made between tioned for the first 13 years of said ments are described on the map Aer Riana Teoranta of the one term, and thenceforth at a yearly An arrangement of annexed hereto and thereon part and Gerard Byrne and Kevin rent of 18 pounds, four shillings. 50/50 is suggested. coloured blue, and which said Byrne of the other part for the Take notice that Greybirch Please contact us today to discuss further. hereditaments and premises are term of 99 years from 25 March Limited, being the company now 028 7136 2299 | 028 9091 2938 situate in Dalkey in the borough 1956, subject to the yearly rent of holding the said property, intends [email protected] of Dun Laoghaire and county of £200. to submit an application to the kearneylawgroup.com Dublin, held under an indenture Take notice that QMK Dublin county registrar for the city of Belfast | Derry | Dublin | London of lease dated 8 May 1912 and Limited, being the person enti- Dublin for the acquisition of the made between Edward Alexander tled to the lessee’s interest under freehold fee simple estate and all Porter of the one part and Colonel the said lease, intends to submit (if any) intermediate interests in ests in the following property at Douglas James Proby of the other an application to the county reg- the aforesaid property, and any 6 George’s Quay, Dublin 2, held part for a term of 150 years from istrar for the county of Dublin at party asserting that they hold a under a fee farm grant dated 1 25 March 1910, and was made Áras Uí Dhálaigh, Inns Quay, in superior interest in the aforesaid February 1861 between Richard partly in consideration of the sum the city of Dublin, for the acquisi- property is called upon to furnish John Wolseley of the one part of one shilling per year, to be paid tion of the fee simple interest in evidence of the title to the afore- and Thomas Beeby, Peter George by equal half-yearly payment. the said property, and any party mentioned property to the below Dumoulin, Susannah Dumoulin, Take notice that Deirdre asserting that they hold any inter- named within 21 days from the Susan Beeby, Elizabeth Beeby, Lavelle (otherwise known as est in the said property is called date of this notice. Jane Mongan, William Maffett O’Gorman) and Malachy Louis upon to furnish evidence of title In default of any such notice and William Hamilton Maffett of Lavelle intend to submit an appli- to the said property to the under- being received, the applicant the other part, forever subject to cation to the county registrar signed solicitors within 21 days of intends to proceed with the appli- the yearly rent of £20.3.4¼. for the county of Dublin for the the date of this notice. cation before the county regis- Take notice that Greybirch acquisition of the freehold inter- In default of any such notice trar for the city of Dublin at the Limited, being the company now est in the aforesaid property, and being received, the said applicant end of 21 days from the date of holding the said property, intends any party asserting that they hold intends to proceed with the appli- this notice and will apply to the to submit an application to the a superior interest in the aforesaid cation before the Dublin county county registrar for directions as county registrar for the city of premises (or any of them) is called registrar at the end of the 21 days may be appropriate on the basis Dublin for the acquisition of the upon to furnish evidence of the from the date of this notice and that the person or persons benefi- freehold fee simple estate and all title to the aforementioned prem- will apply to the Dublin county cially entitled to all superior inter- (if any) intermediate interests in ises to the below named within 21 registrar for such directions as ests up to and including the fee the aforesaid property, and any days from the date of this notice. may be deemed meet on the simple in the aforesaid property party asserting that they hold a In default of any such notice grounds that the person or per- are unknown or unascertained. superior interest in the aforesaid being received, the applicant sons beneficially entitled to all Date: 3 July 2020 property is called upon to furnish intends to proceed with the appli- and any superior interest in the Signed: McCann FitzGerald (solici- evidence of the title to the afore- cation before the county registrar said property, up to and including tors for the applicant), Riverside One, mentioned property to the below at the end of 21 days from the date the fee simple estate if appropriate Sir John Rogerson’s Quay, Dublin 2 named within 21 days from the of this notice and will apply to the are unknown and unascertained. date of this notice. county registrar for the county of Date: 3 July 2020 In the matter of the Landlord In default of any such notice Dublin for directions as may be Signed: DWF (solicitors for the and Tenant (Ground Rents) being received, the applicant appropriate on the basis that the applicant), 5 George’s Dock, IFSC, Acts 1967-2019 and in the intends to proceed with the appli- persons beneficially entitled to Dublin 1 matter of the Landlord and cation before the county regis- the superior interest including the Tenant (Ground Rents) (No 2) trar for the city of Dublin at the freehold reversion in each of the In the matter of the Landlord Act 1978 (as amended) and in end of 21 days from the date of aforesaid premises are unknown and Tenant (Ground Rents) the matter of an application by this notice and will apply to the or unascertained. Acts 1967-2019 and in the Greybirch Limited in respect county registrar for directions as Date: 3 July 2020 matter of the Landlord and of 6 George’s Quay, Dublin 2 may be appropriate on the basis Signed: BHSM Solicitors (solicitors Tenant (Ground Rents) (No 2) Take notice that any person hav- that the person or persons benefi- for the applicant), 6-7 Harcourt Act 1978 (as amended) and in ing any interest in the freehold cially entitled to all superior inter- Terrace, Dublin 2 the matter of an application by estate or any intermediate inter- ests up to and including the fee gazette.ie Law Society Gazette July 2020 71 PROFESSIONAL NOTICESNOTICES simple in the aforesaid property of the said International Hotel, from the date of this notice and are unknown or unascertained. and lying between the said plot will apply to the county registrar Date: 3 July 2020 and the International Hotel, and for the county of Wicklow for RETIRING Signed: McCann FitzGerald (solici- which plot of ground contains in directions as may be appropriate SOLICITOR SEEKS tors for the applicant), Riverside One, breadth to the north adjoining on the basis that the persons ben- SUCCESSOR FOR Sir John Rogerson’s Quay, Dublin 2 the International Hotel 186 feet, eficially entitled to the superior on the south to Mr Quin’s ground interest including the freehold PRACTICE In the matter of the Landlord 186 feet, on the east to the railway reversion in the aforesaid prop- Principal solicitor, based and Tenant Acts 1967-2005 and yard 187 feet, and on the west to erty are unknown or ascertained. in South Western Circuit in the matter of the Landlord Meath Road 187 feet, be all or any Date: 3 July 2020 (County town), who and Tenant (Ground Rent) (No of the said admeasurements more Signed: A&L Goodbody (solicitors for wishes to retire, seeks 2) Act 1978 and in the matter or less and as same are more par- the applicant), International Finan- interested party to take of certain premises situate at ticularly described on the portion cial Services Centre, North Wall over broad-based firm. the junction of Adelaide Road of the map in the margin hereof Quay, Dublin 1; ref: GOT/JYA and Florence Road, Bray, Co coloured green, all which said 01-429309 Retiring solicitor is Wicklow, adjacent to Bray rail- premises are situate in the parish available to continue as way station, and also known as of Bray, barony of Rathdown, and In the matter of the Landlord assistant if required. 39b Quinsborough Road, Bray, county of Wicklow”, which prem- and and Tenant Acts 1967-2005 Box no: 02/06/20 Co Wicklow, and in the matter ises are located at the junction in the matter of the Landlord of an application by Glenveagh of Adelaide Road and Florence and Tenant (Ground Rents) (No Homes Limited Road, adjacent to Bray Railway 2) Act 1978 and in the matter of Take notice any person having a Station, and also known as 39B an application by Joseph P Gal- held an interest superior to the freehold interest or any intermedi- Quinsborough Road, Bray, Co vin & Company Limited applicant in the aforesaid prop- ate interest in all that and those the Wicklow. Take notice that any person hav- erty is called upon to furnish entire of the lands, hereditaments Take notice that Glenveagh ing an interest in the freehold evidence of title to same to the and premises comprised in and Homes Limited intends to submit estate (or any intermediate inter- below-named solicitors within 21 demised by a lease dated 21 May an application to the county reg- est) of the following properties: all days from the date hereof. 1870 between (1) Mathew Quin istrar for the county of Wicklow that and those the premises situ- In default of any such notice and (2) Charles Antoine Dufresne for the acquisition of the freehold ated at High Street, Tullamore, in being received, the applicant for the term of 900 years from 25 interest and any intermediate the county of Offaly, once known intends to proceed with the appli- March 1870, subject to the yearly interest in the aforesaid property, as the Royal Arms Hotel and lat- cation before the county registrar rent of £30 (sterling) and the cov- and any party asserting that they terly known as Coltons Hotel, at the end of 21 days from the date enants and conditions therein hold a superior interest(s) in the Tullamore, Co Offaly, and lat- of this notice and will apply to the contained (the lease), which lands, aforesaid property is called upon terly occupied by tenants known county registrar for the county of hereditaments and premises com- to furnish evidence of the title to as ‘Sambodinos’ and the ‘Amber Offaly for such directions as may prised in and demised by the lease the aforementioned property to Chinese Restaurant’. be appropriate on the basis that are therein described as “all that the below named within 21 days Take notice that Joseph P Gal- the person or persons beneficially and those that piece or plot of from the date of this notice. vin & Company Limited intends entitled to all or any of the supe- ground situate at the rear of the In default of any such notice to apply to the county registrar rior interest in the said property International Hotel Bray, known being received, Glenveagh for the county of Offaly for the are unknown or unascertained. as the Hotel Garden, now walled Homes Limited intends to pro- acquisition of the freehold inter- Date: 3 June 2020 in, and also any rights of passage ceed with the application before est and all intermediate interests Signed: Farrell & Partners (solicitors which the said Mathew Quin the county registrar for the county in the above-mentioned property, for the applicant), O’Connor Square, may have or possess at the rear of Wicklow at the end of 21 days and any party asserting that they Tullamore, Co Offaly IF LIFE GIVES YOU LEMONS IF LIFE GIVES YOUIF LEMONS,LIFEWE’RE GIVES HERE WE’RE YOU TO LEMONS HERE HELP TO HELP WE’RE HERE TO HELP Consult a Colleague now in total confidence ConsultConsult a Colleague a Colleague now in in total total confidence confidence CallCallCall us us us onon on 01 01 01 284 284284 8484 8484 8484
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A4 Consult a collegue.indd 1 26/08/2015 15:50 72 FINAL VERDICT July 2020 Law Society Gazette gazette.ie
PRO BONOBO HITLER: MY PART IN HIS DOWNFALL A worker who was sacked after privately sharing a version of a Hitler parody video during pay negotiations has won his case in Australia’s federal court, The Guardian reports. The Downfall meme has been circulating on the internet for more than a decade and shows a furious Hitler giving his military commanders a dressing down during the final days of the war. Users add their own subtitles to the clip from the German film. The BP technician used it to parody heated and protracted bargaining negotiations at the company, distributing the video to a private Facebook group of friends and colleagues. BP alleged claimed unfair dismissal, which propriate and offensive. mission found the video to the video breached the company’s the Fair Work Commission He won his job back on appeal be satirical. The federal court code of conduct. The technician rejected, ruling the video inap- after the full bench of the com- upheld that decision. VOM WINDE VERWEHT ‘FACE- A man has been fined €500 after tive and uncooperative manner” OFF’ WITH he farted in the general direction when he was approached in the of police in Vienna during an early hours of 5 June. JUDGE altercation in early June, the BBC He rose from his park bench, A seasoned British barrister has reports. “looked at the police officers, and received a Stg£1,000 fine for The police defended the fine, apparently intentionally released acting in a “rude and unprofes- saying, “Of course, no one will a massive burst of intestinal wind sional manner” towards a judge be reported for accidentally ‘let- in the immediate vicinity of – even to the extent of “pulling ting one go’ once.” The charge the officers”. faces”, Legal Cheek reports. was for violating public decency. The police said that members Marguerite Russell, who was They said the suspect “had of the force “prefer not to be called to the bar in 1972, was already behaved in a provoca- farted at”. instructed as counsel for the defence during a three-month trial in 2016, during which she is reported to have interrupted IN CAUDA VENENUM her opponent’s submissions and Need a fancy slogan for your new (‘we will send you letters until longer exists’), failed to sit down when asked to course or programme? Try one of you die’), • Quies laborum et officii (‘a repose do so by the judge. these, from ‘More honest Latin • Quinque fusci in libello, nulli in from work and responsibility’), A regulatory panel found that mottoes for your overrated uni- campo (‘five people of colour in • Largitione ac donis (‘through Russell had shouted at the judge versity’: our prospectus; none on cam- bribes and gifts’), and talked over counsel, as well as • Quo plus cerevisiae, eo minus pus’), • Qui haec verba legat satis iam describing a decision as ‘insane’. memoriae (‘the more beer, the • Veritate perempta novam sen- didicit (‘whoever can read these She also pulled faces at the judge fewer the memories’), tentiam petimus (‘we need a words has already learned and acted in a manner that led to • Tibi ad mortem litteras mittemus new motto, since truth no enough’). her being told to sit down. 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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