ISSN 1393−6956 ga 12

9 771393 695029 those affected byCOVID unprecedented supportfor The budgetcontinues Finance andadministration ILLEGAL ALIEN LAW SOCIETY The rocky road to Irish citizenship

ette death-in-service benefits into thespotlight,particularly COVID hasbrought pensions Don’t fearthereaper €4.00 DECEMBER2020 The Law Society’s newpresident. Mayo’s JamesCahillisthe The JamesGang heads out west Gazette headsoutwest gaLAW SOCIETY ette

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Child and Family Law, Third Edition Child and Family Law, Third Edition Dr. Geoffrey Shannon Dr. Geoffrey Shannon Child and Family Law, Third Edition, provides a comprehensive narrative of the law and practice of Child and Family Law, Third Edition, provides a comprehensive narrative of the law and practice of Childchild andand family Family law Law in, IrelandThird Edition, while also provides considering a comprehensive international narrative and European of the law Union and practicelaw in an of Irish child and family law in Ireland while also considering international and European Union law in an Irish childcontext. and In family this greatly law in expandedIreland while edition also ofconsidering this major international work, the author and providesEuropean a Uniondetailed law account in an Irish of context. In this greatly expanded edition of this major work, the author provides a detailed account of context.recent developments In this greatly in expanded both child edition and family of this law. major The work, text considers the author the provides new constitutional a detailed account provisions of October 2020 | € 365 recent developments in both child and family law. The text considers the new constitutional provisions October 2020 | € 365 recentand several developments recent statutes in both as child well andas all family the major law. The judgments text considers in the childthe new and constitutional family law area. provisions It also ISBN:October 9780414056336 2020 | € 365 examinesand several the recent updated statutes District as wellCourt, as Circuitall the Courtmajor andjudgments Superior in Court the child Rules. and family law area. It also ISBN: 9780414056336 and several recent statutes as well as all the major judgments in the child and family law area. It also ISBN: 9780414056336 examines the updated District Court, Circuit Court and Superior Court Rules. examinesThis title is the also updated available District as an Court,eBook Circuiton Thomson Court andReuters Superior ProView™ Court Rules. This title is also available as an eBook on Thomson Reuters ProView™ This title is also available as an eBook on Thomson Reuters ProView™

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FEATURES

20 If you ever go across the 32 That sinking feeling sea to Ireland Considerable uncertainty still surrounds the question of ‘If you’re Irish, come into the parlour, there’s a welcome when claims for subsidence accrue, and when they become there for you.’ The road to Irish citizenship, however, statute-barred. Patrick E Keane lays the foundations might not carry the same ‘welcome on the mat’ for some. Carol Sinnott finds out whether this is the place for you 36 Can’t take it with you The pandemic has brought pension schemes into the 26 The reluctant lawyer spotlight. Stephen Gillick looks at death-in-service benefits The Law Society’s new president is something of an and highlights the impact that COVID-19 has had on them enigma. Equally at home designing boats, replacing an engine, or solving a tricky conveyance, James Cahill talks to Mark McDermott about his year at the helm 40 The world is not enough Are we experiencing the level of sustainable wellbeing that we need to live a fulfilling and healthy life? If not, then something’s not right and we need to talk about it. Katie da Gama visits Q

36 52 56

REGULARS

4 48 News in depth: The recent Finance Bill and COVID’s The big picture taxing times Standout photo of the month 52 News in depth: Update on Perrigo Pharma’s High Court application 6 People 54 News in depth: The LRSA’s reports on legal education and the potential unification of the legal profession 10 News 56 Eurlegal: The governance of climate action 16 Obituary: John M O’Connor 60 Briefing 17 Comment 60 Council report: 13 November 2020 17 Viewpoint: Letters 61 Practice direction 18 Book reviews: Practical Probate and The Law of 62 Practice notes Evidence in Ireland (4th ed) 66 Guidance note

44 Analysis 69 Professional notices 44 News in depth: A report from this year’s online In-House and Public Sector Conference 72 Final verdict 4 IN FOCUS December 2020 Law Society Gazette gazette.ie EPA-EFE/IAN LANGSDON gazette.ie Law Society Gazette December 2020 IN FOCUS 5

THE BIG PICTURE

FREEZE FRAME French riot police use water cannons to clear protesters gathered on Place du Trocadero near the Eiffel Tower after a demonstration was held against draft ‘global security’ leg- islation. Lawmakers voted on 24 November on the bill, which now goes to the Senate. The legislation aims to ban the distribu- tion of photos in which police officers and gendarmes can be identified in a way that harms their image. Offenders would face a maximum penalty of up to one year in prison and a €45,000 fine. Emmanuel Poup- ard (National Journalists’ Union) said that the legislation “has only one goal – to boost the sense of impunity of law enforcement officers and make police brutality invisible” 6 PEOPLE December 2020 Law Society Gazette gazette.ie CALCUTTA RUN – YOU MADE IT!

We made it. Thanks to all the contributors to this year’s virtual Calcutta Run, who helped us achieve the 10,000km distance and raised a whopping €260,000 for The Hope Foundation and the Peter McVerry Trust Staff from Paul Kelly & Co put their best foot forward

With him in spirit! Ciarán Ahern (A&L Goodbody) doing the Calcutta Run 5km route as part of his 100km target

Hilary Kavanagh (Law Society) and her Rachel Hession (Law Society) enjoyed a cool daughter Áine dip after her virtual run

Calcutta Run committee member Michael Barr (A&L Goodbody) and Crunchie the dog McKenna and Co staff enjoyed a tasty 7k walk for the Calcutta Run. Go Crunchie! gazette.ie Law Society Gazette December 2020 PEOPLE 7

Cillian MacDomhnaill, Cathy Dowling and Mark Browne ran a 5km route to Blackhall Place

SEVEN Psychology at Work staff enjoyed making local discoveries during their daily runs

Italian participant Ferdinando Berto out on his daily walk. Thanks for the support!

Ciarán Lyng (A&L Goodbody) put us all under pressure with his 100km target

ENET Ireland staff enjoyed the sights of Ireland on their daily runs, walks, and cycles – McCann FitzGerald staff and took the pictures to prove it 8 PEOPLE December 2020 Law Society Gazette gazette.ie

A large number of William Fry staff and their family members (shown on this Sean Mooney and Treasa Kelly Anna Ní Uiginn page) took part in this year’s virtual Calcutta Run, including Grainne Carr

John Boyle Ben Kennedy

Sergey Dolomanov

Andrea and Kyle Borain Owen O’Sullivan with Zeb Catherine Carrigy Derek Hegarty

Mark Kershaw Paul McNamara John Sugrue Craig Sowman gazette.ie Law Society Gazette December 2020 PEOPLE 9

Teri Kelly (Law Society) reached dizzy heights when she performed a 1km cycle up the virtual slope of Alpe d’Huez using the Zwift training app

Staff from McKenna and Co Solicitors took part in a collective 30km run – and raised €500 from their company’s bake sale

Matheson staff cycled and jogged every day on behalf of the virtual Calcutta Run. Thanks for the tremendous support! Claire O’Mahony (Law Society) discovers the Phoenix Park during her 5km Calcutta Run

www.calcuttarun.com

The whole team from the Calcutta Run’s long-standing Ciara O’Doherty designed her dad sponsors, The Panel, did their bit to make sure we went the Joe’s 22nd-year Calcutta Run t-shirt distance from Dublin to Kolkata! Thanks for the support 10 NEWS December 2020 Law Society Gazette gazette.ie CAHILL BECOMES 150TH PRESIDENT PIC: JASON CLARKE PHOTOGRAPHY n The 150th President of the Law Society, James Cahill, has begun his term of office, which runs until 13 November 2021. He is joined by senior vice-president Michelle Ní Longáin and junior vice-presi- dent Barry MacCarthy. James was born and raised in Castlebar, Co Mayo. One of five children, his dad John F Cahill was a solicitor, and his mother Carmel Caulfield a phys- iotherapist. Qualifying in 1979, he has lived and practised law throughout his career in Co Mayo. Married to Katherine Killalea, also a Mayo- based solicitor, they have three children – Conor, Ellen and Fion- nuala. James has been active since qualification in the Mayo Solici- President of the Law Society, James Cahill tors’ Bar Association and held the role of president for two years. He has been on the Law Society Council for 21 years. COUNCIL ELECTION

Great challenge 2020 RESULTS “It is a great honour to serve The scrutineers’ report of the Doyle (1,238), Imelda Reynolds as President of the Law Soci- results of this year’s Law Society’s (1,194), Michelle Ní Longáin ety of Ireland for the coming 12 Council election declared the fol- (1,189), Barry MacCarthy (1,141), months,” he says. “To be leading lowing candidates elected (the Carol Plunkett (1,071), and Daniel the Irish solicitors’ profession is a number of votes received by each E O’Connor (955). Michelle Ní Longáin personal privilege. However, this candidate appears after each As there was only one candidate is also a time of great challenge.” name): Flor McCarthy (1,868), nominated for each of the two Outlining his priorities for his Maura Derivan (1,595), Richard relevant provinces (Connaught and term in office, Mr Cahill said he Grogan (1,583), Martin G Munster), there was no election would be focusing on continuing Lawlor (1,515), Rosemarie Loftus for these provinces. The candidate the work of supporting smaller (1,498), Brendan J Twomey nominated in each instance was practices across Ireland, leading (1,405) Christopher Callan returned unopposed, as follows: the profession through the cur- (1,404), Áine Hynes (1,263), Martin J Crotty (Leinster) and rent pandemic, and helping firms Eamon Harrington (1,261), Tara Garry Clarke (Ulster). prepare for business recovery. Barry MacCarthy URGENT PLEA TO LAWYERS FROM LORD MAYOR n The Lord Mayor of Dublin Traditionally, the money Live animal crib The Mansion House Fuel Hazel Chu has issued an appeal to raised was used to buy coal for The annual Lord Mayor’s Fund distributes cash grants Law Society members for dona- those without the means to heat Christmas concert, which raises without any distinction of creed. tions to a fuel fund for those in their homes. funds for the charity, will not It was one of the first truly ecu- need. The Mansion House Fuel The fund is distributed with take place this year, due to menical charities in Dublin. Fund dates back to 1891, and was the help of charities such as St COVID restrictions. The live Donations from the legal set up by Sir John Arnott in 1891 Vincent de Paul, Dublin Simon animal crib outside the Mansion profession can be sent to: Man- to assist the needy during a par- Community and the Peter House on Dawson Street is also sion House Fuel Fund, Dawson ticularly harsh winter that year. McVerry Trust. in doubt for 2020. Street, Dublin 2, DO2 AF30. gazette.ie Law Society Gazette December 2020 NEWS 11 LEGAL PROFESSION LOSES ONE OF ITS LEADING LIGHTS PIC: CIAN REDMOND n The Gazette has been informed to the journalistic field. He was of the death at 1pm on Saturday chair of the Law Society Gazette 21 November of Dr Eamonn G Editorial Board for seven years Hall, solicitor (Ireland, North- and served on the board over a ern Ireland, England and Wales), span of three decades. notary public and commissioner for oaths, following a brave battle Eminent author with illness. His funeral Mass He was a member of the edito- was held on 24 November in the rial board of the European Counsel Church of the Nativity of the 3000/Global Counsel 3000 (1997- Blessed Virgin Mary, Chapelizod, 2002), and was a visiting fellow Dublin. and adjunct member of the Fac- Educated at St Macartan’s Col- ulty of Law at UCD (2000-2008). lege, Monaghan, Dr Hall was a In addition, he was a member Eamonn G Hall with his wife Mary at the Law Society’s room-naming ceremony graduate of University College in his honour in August of the board of directors of the Dublin with a BA degree, H Dip Irish Centre for European Law at Ed (NUI Maynooth), LLB (NUI He was elected vice-chair of the “Eamonn served as a member TCD. Galway), PhD (Trinity College Law Reporting Council in 1993 of the Incorporated Council of An eminent author, he wrote Dublin) and was admitted to the and served as its chair in 1997. Law Reporting for more than 30 The Electronic Age: Telecommunica- roll of solicitors in 1974. Sub- He was appointed by the Gov- years, working closely with lead- tion in Ireland (1993) and was con- sequently, he was admitted as a ernment to the first Information ing members of the judiciary and sultant editor of The Irish Digest solicitor of Northern Ireland, and Society Commission (1997-2000), the Bar in the production of the (1994-99), published by the Law England and Wales. and was chair of the Legal and Irish Reports – both in print and, Reporting Council for Ireland. He was principal of EG Hall Government Affairs Committee more recently, through his initia- With Daire Hogan, he was & Co Solicitors, Notaries Public of the commission (1997-2000). tive, online. co-editor and contributor to The and Commissioners for Oaths, He was also a fellow of the “In a recently published book Law Society of Ireland 1852-2002: and was chief solicitor with Tele- Society for Advanced Legal Stud- that contained many tributes Portrait of a Profession (2002) – the com Éireann/Eircom Group from ies, University of London; a for- to Dr Hall, Chief Justice Frank seminal work on the history of the 1984-2007. mer member of the Council of Clarke expressed the view that ‘it solicitors’ profession. Eamonn served as the chief Convocation of the National Uni- would be impossible to overstate He was co-author of the sup- examiner in constitutional law for versity of Ireland; and a member the contribution which Eamonn plement to O’Connor’s The Irish the Society’s Law School from of the Committee of Scrutineers Hall has made to the important Notary (2007), and author of The 1981-2006 and, from its incep- at the Law Society of Ireland. cause of law reporting in Ireland’, Superior Courts of Law: ‘Official’ tion, was an examiner in constitu- adding that ‘he is also the person Law Reporting in Ireland 1866- tional law for the Qualified Law- Lifetime contributions who has played the greatest role 2006 (2007), as well as contribu- yers’ Transfer Examination. He To mark his lifetime’s contribution in its modern evolution and, per- tor for Ireland to Brooke’s Notary was consultant on judicial review to education in the Law Society of haps, survival’.” (13th and 14th editions). to the Law School and former Ireland and to the solicitors’ pro- consultant on criminal litigation fession generally, the Society held Central figure Awards and advocacy. a room-naming ceremony in hon- Eamonn was a central figure in In 2004, he received the NUI our of Dr Hall on 18 August. the work of the Faculty of Nota- Galway Award for Law, Public Law reporting At that time, director gen- ries Public in Ireland, serving as Service and Government. More Dr Hall was a former secretary eral Ken Murphy commented a member of its governing coun- recently, Eamonn chaired the and president of the Medico- that “his contributions across an cil and as its director of educa- annual Irish Law Awards and, Legal Society of Ireland and a astonishing range of activities of tion from 2009. He was recently earlier this year, his colleagues member of its council. He was a the solicitors’ profession have few admitted as a fellow, receiving honoured him with a Lifetime former chair of the Irish Society equals. In addition, his generous the faculty’s medallion. The tes- Achievement Award. for European Law and served as contribution to law reporting in timonial acknowledged Eamonn’s We extend our deepest sym- its vice-president. Ireland has been remarkable – immense contribution to the fac- pathies to his wife Mary, his son Eamonn was an elected mem- he was the only solicitor ever to ulty’s endeavours in the education Alan, daughter Irene, extended ber of the Incorporated Council of have chaired the Council of Law and training of notaries and can- family members, grandchildren, Law Reporting for Ireland in 1986 Reporting during its long history.” didate notaries. relatives, friends and colleagues. and was a member of its Council. The director general added: Eamonn’s skills also extended Ar dheis Dé go raibh a anam dílis. 12 NEWS December 2020 Law Society Gazette gazette.ie PC RENEWAL TO MOVE ONLINE n The practising certificate (PC) Assistance will also be pro- renewal for 2021 will move to vided to those solicitors who are an online-only model, the Law having difficulty in the process. Society Council has decided. The This year, 66% of PC applica- unanimous decision was made at tions were completed online. its meeting on 13 November. It was the Law Society’s objec- All PC applications and pay- tive to move to a fully online ments for 2021 will only be model by 2023. The many dif- accepted via the Law Society ficulties caused by the pandemic website. This includes applica- have accelerated this process, tions for practising certificates, which is necessary to ensure that qualifying certificates, member- the PC renewal process for 2021 ships, certificates of good stand- runs smoothly and that members ing, and applications by solicitors are issued their practising cer- in the full-time service of the tificates in a prompt and orderly State. manner. The online process will No paper applications will be order or cash) not accepted. The Society will provide also offer considerable savings made available, and payment Solicitors need to provide the detailed information on all of over manual administration. methods are limited to debit/ Law Society with a unique direct the steps required to complete Members requiring assistance credit card or bank transfer, email address (not a generic firm an online application, with addi- with specific issues can contact with physical methods of pay- email) to ensure they can log in tional training offered to firm the Law Society at email: pc@ ment (cheque, bank draft, postal and submit their PC form online.​ administrators (if required). lawsociety.ie. FIRMS SHOWCASE SPECIAL GENERAL DIVERSITY INITIATIVES MEETING OF THE SBA n The Diversity in Law project, PIC: CIAN REDMOND n Notice is hereby given that a Members can inspect and/or led by co-founders Tarisai Chi- special general meeting of the download a copy of the new rules dawanyika and Sylvia Julius, has Solicitors’ Benevolent Asso- on the association’s website, www. partnered with a number of the ciation will be held remotely by solicitorsbenevolentassociation. larger law firms to run a series of videoconference on Monday 21 com. virtual events to show how firms December at 11.30am for the You can register to attend the are taking action to change their purpose of considering and, if SGM by sending your name and organisational culture and create thought fit, adopting the new email address to the secretary, a truly inclusive and diverse legal Rules of the Association, which have Geraldine Pearse, at contact@ workforce. recently been approved by the solicitorsbenevolentassociation. On 20 October, a one-hour Charities Regulator. com. session at McCann FitzGerald examined their application pro- cess and the culture of the firm. LEGAL PLANNER DELAY The session was organised by n Each year, the Gazette pub- We understand that addi- partner Audrey Byrne and led lishes its annual Legal Planner, tional court venues are still being by partner Tom Dane, graduate Tarisai Chidawanyika which is normally included with sourced in order to allow for manager Dianne Hennessy, and the December issue. Due to social distancing and jury trials, trainee Aishwarya Jha. led by the graduate recruitment pandemic-related difficulties, we which is adding to the difficulty Arthur Cox’s one-hour ses- team of Carmel Mellet and Siofra have had to delay publishing the of confirming Circuit Court sion on their application process McCann, and diversity and inclu- planner. dates. was led by Eimear Power on 22 sion lead Niall Crowley. The vast majority of dates Our current plan is to include October. As we go to press, A&L Good- for Circuit Court sittings for the Legal Planner with the Janu- And on 29 October, Mathe- body is preparing to host its 2021 are not currently available. ary/February 2021 issue. We son hosted a 30-minute session ‘Diversity in Law’ session in early We have been informed by the apologise for any inconvenience on their diversity initiatives, fol- December, led by Lisa Doyle Courts Services that dates are this might cause, which unfortu- lowed by a Q&A on their appli- (graduate talent executive) and expected to be finalised in the nately is due to matters beyond cation process. That session was solicitor Heidi Tan. coming weeks. our control. gazette.ie Law Society Gazette December 2020 NEWS 13 WARM VIRTUAL WELCOME FOR SOCIETY’S NEWEST SOLICITORS n The Law School held its very first virtual parchment ceremo- nies for newly qualified solici- tors, which were live-streamed on 10 and 11 November. The first virtual parchment recipient was Katie Lawless from Tip- perary. Educated at TCD and Blackhall Place, she is an associ- ate solicitor with Arthur Cox. With COVID-19 preventing in-person events, the Law School decided to mark the hard work and commitment of 2020’s newly qualified solicitors and devised the online graduation ceremony. First virtual parchment recipient, Katie Lawless Among the special guests to par- ticipate were President of the High Court Ms Justice Mary Irvine, then Law Society Presi- dent Michele O’Boyle, and direc- tor general Ken Murphy.

Unique contribution Ms Justice Mary Irvine said that solicitors make a unique contri- bution to the welfare of society as a whole in providing the best possible service for the routine Ms Justice Mary Irvine Director general Ken Murphy problems of clients. “In my 25 years practising as society is founded upon.” a barrister, not once did I have The president also urged the a bad experience when dealing new solicitors to maintain a good with a member of the solicitors’ work/life balance and to keep profession,” she commented, family and friends central in their adding that she did not offer such lives, as well as enjoying fulfilling plaudits lightly. pastimes. “Do not let your work As President of the High become your life. If you do so, Court, Ms Justice Irvine said that you risk falling into ill-health,” she had oversight of the solici- she warned. tors’ profession. The Law Soci- Director general Ken Murphy ety had only had to invoke the welcomed the new solicitors to court’s jurisdiction in a tiny per- Then Law Society President Michele O’Boyle the profession. “Even though we centage of professional conduct can’t be together in person, this cases, she said, even though there the ends of the earth. That is the independent legal profession is your Law Society, and we look were almost 21,000 practitioners standard expected of you, and by was an essential component of forward to welcoming new col- on the Roll. which you will ultimately be held democracy. “It is vital that the leagues to Blackhall Place soon,” She told the newly minted to account,” she concluded. public, to whom we owe a duty, he commented. solicitors: “Your obligation is to has confidence in the indepen- Both ceremonies were maintain the reputation of the Essential to democracy dence and integrity of the legal streamed on the Law Society solicitors’ profession as one in Law Society President Michele profession,” she said. “You are YouTube channel, where they which every member, of what- O’Boyle told the newest mem- now the guardians and champi- can be found by searching for ever standing, can be trusted to bers of the profession that an ons of the rule of law that our ‘virtual parchment ceremony’. 14 NEWS December 2020 Law Society Gazette gazette.ie

ENDANGERED LAWYERS LSRA APPOINTEES BUZURGMEHR YOROV, TAJIKISTAN CONFIRMED BY OIREACHTAS PIC: CIAN REDMOND n The Legal Services Regula- tory Authority (LSRA) has con- firmed Dáil and Seanad approval for the reappointment of four serving authority members, and the appointment of one new member. The appointment and reap- Arrested in September 2015, as case, the situation is grim for the pointments, which took effect on he had begun to represent 13 legal profession in Tajikistan. In 1 October, are: senior members of the recently 2015, the Tajik government intro- • Simon Murphy (newly banned Islamic Renaissance Party, duced a law that requires all law- appointed – one of two mem- Buzurgmehr Yorov (now 49) was yers to renew their licences with bers nominated by the Law sentenced to 23 years on charges the Justice Ministry — not an Society), of fraud, forgery, “arousing independent bar association or • Eileen Barrington SC (reap- national, racial, local, or religious licensing body — and to retake pointed nominee of the King’s hostility”, and extremism. the bar examination every five Inns), He had been detained for eight years. • Angela Black (reappointed LSRA chair Don Thornhill months before his trial and com- “Tajik lawyers have reported nominee of the Citizens Infor- plained of beatings and solitary that the exam includes questions mation Board), of standards in the provision of confinement. Before he was sen- on a broad range of subjects • Joan Crawford (reappoint- such services, and promoting and tenced in October 2016, he read unrelated to law, such as history, ment nominee of the Legal protecting the public interest, th an 11 century Persian poem in culture, and politics,” said human Aid Board), and including those of consumers.” court, which earned him another rights lawyer Steve Swerdlow, • Dr Don Thornhill (chair – The LSRA is the independent charge and an additional two suggesting that the exam is reappointed nominee of the statutory body, established in years. With a third prosecution, being used to weed out lawyers Higher Education Authority). October 2016, responsible for his sentences amounted to 28 prone to taking sensitive cases. the regulation of legal services years. The various trials failed to It is reported that the number of Chair Dr Don Thornhill said: provided by solicitors and barris- respect international standards licensed lawyers in Tajikistan has “The members bring significant ters. It is formed from the nomi- of due process, and his imprison- fallen by around half in only five practical, academic and legal nees of ten organisations listed in ment was widely seen as politi- years. experience and expertise to the the Legal Services Regulation Act cally motivated. In November Lawyers for Lawyers, along authority as it continues with its 2015. It has a lay majority. The 2019, his sentences were reduced with Freedom Now and two law challenging work programme in names of nominees are approved by six years as part of a mass firms, filed a petition in 2018 fulfilment of its statutory man- by Cabinet and resolutions of th amnesty to mark the 25 anniver- with the UN Working Group on date to regulate the provision both Houses of the Oireachtas. sary of Tajikistan’s constitution. Arbitrary Detention (WGAD) of legal services, and ensure the Its chief executive is Dr Brian He remains behind bars. Accord- on Yorov’s behalf. On 12 June maintenance and improvement Doherty. ing to his brother Jamshed, he 2019, WGAD made public its contracted a serious case of opinion that the deprivation of COVID-19, but recovered. Yorov’s liberty is arbitrary, violat- NEW LEGAL COST Other independent lawyers in ing a host of rights laid out in the Tajikistan, including Buzurgmehr’s Universal Declaration of Human ADJUDICATOR brother Jamshed, have also been Rights and the International Cov- n Solicitor Barry Magee has istrative law. He also served as arbitrarily detained and impris- enant on Civil and Political Rights. joined the Office of the Legal chair of the Refugee Appeals Tri- oned for spurious offences. Jam- It recommended his immediate Cost Adjudicator. He has worked bunal/International Protection shed fled the country after being release. He remains imprisoned. in the private and public sectors Appeals Tribunal. temporarily released and contin- in a wide range of areas, includ- The new costs system was set ues to campaign for the release of Alma Clissmann is a member of the ing private client, environmental, up under part ten of the Legal his brother and other colleagues. Law Society’s Human Rights Com- conveyancing, probate, judicial Services Regulation Act and has Aside from Buzurgmehr Yorov’s mittee. review, regulatory and admin- been in place since October 2019. gazette.ie Law Society Gazette December 2020 NEWS 15

LAW DIRECTORY IRLI IN AFRICA TANZANIAN PROGRAMME TARGETS GOES GREEN CHILD ABUSE n The Law Society is to signifi- cantly reduce the environmental impact of the annual hard-copy Law Directory by launching it as a mobile website and app. It will be available to download soon in both Android and Apple stores. Hard copies will only be made available to those who express the desire to continue receiving the traditional paper copy (an Staff from IRLI and local partner CDF discuss future collaboration over the new CSA project with magistrates in Mpwapwa advance notice of this change was included with each printed copy Irish Rule of Law International ing with child victims, as well as of the 2020 edition). Members (IRLI) is to launch a new pro- having already forged strong net- will need to opt-in via their Law gramme on investigating and works with relevant stakeholders Directory profile page on the Law prosecuting child-sexual abuse in Tanzania. IRLI will work with Society website if they also wish (CSA) in Tanzania, alongside local CDF to develop CSA-specific train- to receive the 2021 directory in partner, Children’s Development ing materials and deliver training hard copy. Forum (CDF) courses to criminal-justice insti- The directory has been pub- solicitors in real time. The programme aims to tutions in Tanzania, as well as to lished since 1886 and represents All members can access the improve the practices and pro- social welfare officers and medical a picture of the profession at a digital Law Directory on their tocols of CSA investigations and personnel. moment in time each year. The mobile phones by logging into prosecutions in Tanzania. In Tan- IRLI will also facilitate both tech- good news is that the digital direc- www.lawsociety.ie/lawdirectory. zania, more than one in four girls nical and information exchanges tory will contain all the informa- Any questions about the digital and more than one in seven boys between members of criminal-jus- tion in the traditional book, with or hard-copy directory should experience some form of sexual tice institutions across both juris- the added value of providing the be emailed to lawdirectory@ violence before they reach the dictions. During police exchanges, latest contact details of firms and lawsociety.ie. age of 18. Despite this, there is training courses will be held on an underreporting of CSA and an investigative best-practice for inability of Tanzanian authorities interviewing children and vulner- STREET LAW TRAINING to effectively investigate such able persons. Prosecutors will be matters. Ireland’s own history of trained on evidentiary matters, MOVES ONLINE dealing with CSA – initial under- including what constitutes suffi- n A total of 32 PPC1 trainees The volunteers have already reporting followed by waves of cient evidence to prosecute a CSA have been selected from over 100 taken part in online orienta- prosecutions in the 1990s – has matter. Judicial exchanges will cen- applicants to be part of this year’s tion sessions that will help them provided Irish criminal justice tre on how to effectively handle Street Law programme. Street share their legal knowledge institutions with the expertise in CSA matters and evidence at trial, Law places Law School trainees with transition-year students how to conduct these types of such as the possible use of video- with local schools and commu- and other groups. John Lunney proceedings. IRLI hopes to har- link evidence for CSA complain- nity settings to teach pupils about (course manager for Street Law) ness these skills and, with the ants when giving their testimony. the law. This year, trainees will explains: “The focus of the orien- assistance of the Irish judiciary IRLI envisages that the project bring the programme to 16 DEIS tation sessions has always been to and the Garda Síochána, apply will have a long-lasting sustain- (Delivering Equality of Oppor- build capacity in the group ahead them to the Tanzanian context able impact, and that work on tunity) schools and the Trinity of their teaching placement, alongside CDF. CSA cases will be used as a vehicle Access Programmes ‘Pathways expose them to the learner-cen- CDF already has a proven to improve the investigations of to Law’ initiative. Using best tred teaching methodology that track record of advocating for crimes committed against vulner- practice in civic education, the underpins Street Law, and build a the human rights of children at able persons, and victims of sexual Street Law programme taps into community within the group. risk in Tanzania, including for chil- and gender-based violence more people’s inherent interest in the “This group of trainees are dren affected by child marriage generally. law and aims to promote legal lit- at the forefront of online public and female genital mutilation. eracy, equality, and access to law. It legal education, and are gaining As such, they have developed James Douglas is acting director of st teaches high cognitive and social 21 century skills that will transfer the relevant expertise in deal- programmes at IRLI. skills. to their work in the office.” 16 NEWS Obituary December 2020 Law Society Gazette gazette.ie JOHN M O’CONNOR RIP n The recent passing of John seminating legal knowledge. M O’Connor, late of O’Connor Being the caring person that he Solicitors, 8 Clare Street, Dub- was, John took a deep interest in lin 2, brings to a close the life of the Solicitors Benevolent Associa- someone who was the epitome tion, of which he was a trustee and of a gentleman and a scholar. which he chaired for many years, Trustworthy, ethical, reliable and advocating for contributions to helpful are all words that most the profession’s own charity – not definitely relate to him. only from solicitors’ practices, but I knew John as a friend and a also from large corporates that colleague for over 60 years, and operated legal departments. nobody was more willing to give He was actively involved, also, of his experience and knowledge with a number of charities, such to those who sought it. I always as the Meath Foundation, the regarded him as someone to McNamara Homes, and the whom I could turn at any time in Cúnamh adoption agency. the knowledge that I would, after John was also a keen sports- doing so, feel unburdened of my man who enjoyed tennis, rugby concern, and knowing that such and sailing his beloved Ruadh at discussions would go no further. the National Yacht Club in Dun John attended Belvedere Col- Laoghaire. In this sphere also, his lege, UCD, and the Law Society generosity of spirit was evident, as before qualifying as a solicitor in he was one of the founding mem- 1954 and building one of Dublin’s bers of The Shipman Association most successful practices. He had and was its secretary for over a a long-standing relationship with decade. the Law Society, being the solici- To his wife Mary, and to tor who dealt with the purchase of George, Ruth and John, our the Society’s premises in Blackhall deepest sympathies. Place. He also lectured for many A skilled draftsman and low practitioners, and was a Ar dheis Dé go raibh a anam dílis. years on wills and trusts to incom- teacher, he was always happy long-time member of the ‘64 ing members of the profession. to share his precedents with fel- Group’, which focused on dis- AFS

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]. gazette.ie Law Society Gazette December 2020 Letters COMMENT 17 A ROSE BY ANY OTHER NAME From: Bernard O’Connor SC, resident partner, Nctm (Brussels); professor, State University Milan he review by James Meighan of Brice Dick- son’s book on the Irish TSupreme Court (October 2020, p15) triggers a question that maybe your readers can help answer. Mr Meighan says that the book “plots the jurisprudence of the court”. I ask if it is not more correct to refer to the ‘case law of the court’? The French word ‘jurispru- dence’ and the Italian word ‘giuris- prudenza’ refer to the opinions of judges expressed in judgments interpreting the civil code or, more simply, decisions of courts. In English, however, the word ‘jurisprudence’ refers to the sci- ence or philosophy of law. These used in relation to the case law of or incorrect to use in English the authority to the Courts of Jus- are two very different concepts. the Supreme Court by a lawyer word ‘jurisprudence’ in relation tice in the EEC”. To the extent However, more and more, I see brought up in the common-law to the case law of tribunals or to which that assertion is correct, the word ‘jurisprudence’ being tradition. I had thought that the courts – international or not? it is in relation to EU law only, used in English-language texts use was a mistake by authors who PS: On a technical point – in and the concession is not to the when referring to the case law of were from the civil-law tradition. the penultimate paragraph, I am Courts of Justice in the EEC, international tribunals (WTO, Now I wonder. not sure that the Irish Supreme but to the Court of Justice in the ECtHR, CJEU), and now I see it I ask your readers: is it correct Court “conceded its ultimate singular.

INTERVIEWING CHILDREN AND VULNERABLE ADULTS: ONLINE TRAINING

Do you require specialist training to enable you to elicit a detailed, accurate account of an event from a child or a vulnerable adult? Our 21 hours online, competency-based, interactive workshop: • Focuses on developing competency in talking to children and vulnerable adults in ways that increase their narrative while reducing cognitive error. • Is based on empirical research and leading national and international CONTACT US: practice E: [email protected] • Is designed by our team of subject matter experts T: +353 87 171 0194 • 20 Hours CPD points. W: www.fitsltd.ie Cost: €950 per person (contact us for group rates). 18 COMMENT Books December 2020 Law Society Gazette gazette.ie PRACTICAL PROBATE Karl Dowling and Susan Martin. Round Hall (2020) www.roundhall.ie. Price: €55 (paperback, incl VAT). Practical Probate is presented as a concise col- chapters are so clearly set out that this is not lection of essential principles in probate prac- an issue. tice to take account of changes introduced by The book’s practical approach means that the Probate Office. it cannot deal with, nor could it deal with, In essence, it is a publication written in the some of the nitty-gritty issues that invariably style of the late Eamonn G Mongey’s now develop in probate cases. It is, however, an out-of-print Probate Practice in a Nutshell, so extremely useful summary and roadmap for could be considered an updated replacement. the issues that solicitors face on a day-to-day The focus is on matters that solicitors come basis in practice, and it sets out the steps that across in everyday practice. It is a timely pub- need to be taken in probate practice. I see my lication, setting out the effect in practice of copy becoming a much-thumbed reference changes in probate procedures, with a practi- book for a checklist each time a probate appli- cal chapter on enduring powers of attorney. cation is lodged. It clearly summarises a checklist of the legal The checklists, sample will clauses, oaths, principles. Chapters cover such matters as and other essential documents will be of assis- estate planning, wills and the practicalities of tance to practitioners. The book presents a extracting grants of probate, grants of admin- nuts-and-bolts of probate practice and proce- istration with will annexed, and grants of let- dure in an easy-to-interpret format. ters of administration intestate. The book also This is not a textbook to read through from deals with second or subsequent grants and start to finish, but an essential handbook for estates with a farm element. solicitors who carry on any probate practice. There is a helpful chapter on Probate Its €55 price could save a lot of heartache. Office procedure, dealing with such matters as caveats, citations, and applications by post. The book was published just before the Morette Kinsella is a member of the Law Society’s There is a chapter on non-contentious pro- introduction of the new Statement of Affairs Council, a member of the Probate, Administration bate litigation in the High Court, detailing (Probate) Form SA2, but this is not problem- and Trusts Committee, and has recently merged her the issues that arise in practice. atic. A minor quibble is the index, but the practice with Parker Law Solicitors, Waterford.

LAW SOCIETY LIBRARY AND INFORMATION SERVICES – WE DELIVER!

During the current public health crisis, the library is closed to visitors. The library team is working from home. We continue to respond to your legal research enquiries and document-delivery requests.

Unfortunately, it is not possible to lend books during this period. We have access to a large range of databases to answer your enquiries. Self-service access to the entire Irish judgments’ collection is available via the online catalogue. LawWatch will be published weekly as usual. gazette.ie Law Society Gazette December 2020 Books COMMENT 19 THE LAW OF EVIDENCE OUT NOW IN IRELAND (4TH ED) Caroline Fennell. Bloomsbury Professional (2020), bloomsburyprofessional.com. Price: €225 (paperback). This fourth edition of The Law of Evidence in Ireland is a staple for every law student and practitioner in the country. The most recent edition would make a very welcome addi- tion to any library. Criminal practitioners, in particular, must try and navigate through the rules of evidence in providing legal advice. The book sets out the current state of the law NEW EDITION and is up to date with discussions of Sweeney v Ireland (2019), DPP v FR and AR (2019) and Byrne and McCutcheon on DPP v McGrath (2019). Case law of the Euro- the Irish Legal System By Raymond Byrne, Paul McCutcheon, Laura pean Court of Human Rights is included. Cahillane, Emma Roche-Cagney The strength of the book, as with the three An excellent introduction to the legal system in previous editions, lies in placing the evolving Ireland. This new edition’s many updates include the fundamental reform of the legal profession law of evidence in its context of constitutional under the Legal Services Regulation Act 2015, and human rights law. For example, there is the establishment of the Judicial Council, and the effect of the establishment of the Court of an extensive discussion of the important 2017 Appeal in 2014. case of DPP v JC, which explores the differ- Price: €99 ent perspectives displayed in the judgments ISBN: 9781526515087 delivered in that case. The author concludes that the development of the case law relating to the admissibility of improperly obtained The Irish Family Law Handbook brings together in one volume all the essential family law statutes and rules of court, fully amended. Now in its Sixth Edition, it is brought fully up to date to take account of the following Family Handbook Irish Law important legislative developments: evidence “represents a focus on reliability and Commission and the case law of the European• Children and Family Relationships Act 2015 Irish Family Law • Domestic Violence Act 2018 • Family Law Act 2019 Handbook This comprehensive collection of legislation is indispensable for both family probity, as a counterweight to concerns about Court of Human Rights. It also includeslaw practitioners and students.the Deirdre Kennedy and Elizabeth Maguire are both practising barristers.

Contents:

Part 1: General Family Statutes: Guardianship of Infants Act 1964; Maintenance Orders Act 1974; Family Law (Maintenance of Spouses and breach of process, which is very far removed author’s commentary on the importanceChildren) Act 1976; Family Homeof Protection Act 1976; Family Law Act 1981; Domicile and Recognition of Foreign Divorces Act 1986; Status of Children Act 1987; Family Law Act 1988; Judicial Separation and Family Law Reform Act 1989; Family Law Act 1995; Domestic Violence Act 1996; Family Law (Divorce) Act 1996; Family Law (Miscellaneous Provisions) Act 1997; Land and Conveyancing Law Reform Act 2009, Part 7; Civil Partnership and from a rights-based perspective on admissibil- the case law under discussion. ThatCertain Rights‘added and Obligations of Cohabitants Act 2010; Children and Family Relationships Act 2015; Domestic Violence Act 2018; Family Law Act 2019.

Part 2: Other Sources of Law: Bunreacht na hÉireann 1937, Arts 41, 42, 42A.

Part 3: Court Rules: Circuit Court Rules 2001, Ords 59, 59A; Rules of the ity”. value’ might allow a practitioner toSuperior craft Courts, Ords 70, 70A, 70B. a Part 4: European Union Legislation: Council Regulation (EC) No 2201/2003.

The book will be of use to practitioners for winning argument in a marginal case on the Sixth Edition

Kennedy Sixth Edition setting out the rules of evidence, but also for admissibility of evidence. Maguire LAW Deirdre Kennedy explaining their rationale and the policy argu- The book is a must for any practitioner with Elizabeth Maguire ISBN 978-1-5265-1641-1 90100 Also available from Bloomsbury Professional ments that will play a part in the future devel- a court-based practice on either the criminalwww.bloomsburyprofessional.com 9 78152651 6411 opment of the law. For example, the discus- or civil side. NEW EDITION sion of journalistic privilege not only cites the relevant case law of our courts and explains Thomas Coughlan is principal of Thomas Cough- Irish Family Law Handbook By Deirdre Kennedy, Elizabeth Maguire the current state of the law, but goes further lan & Co, Cork, and Michael McGrath SC is a This essential guide will ensure you’ve by discussing the approach of the Law Reform Cork-based barrister. the latest legal guidance and reference information to hand. The newly updated sixth edition comprises consolidated and annotated legislation including coverage of more recent enactments like the Mediation Act 2017, the Domestic Violence Act 2018 and the Family Law (Divorce) Act 2019. Price: €195 ISBN: 9781526516411

LISTEN UP! Order your copies today Visit us at bloomsburyprofessional.com Tune in to Gazette or email [email protected] audio articles at €5.50 P&P Gazette.ie 20 COVER STORY December 2020 Law Society Gazette gazette.ie If you ever go across the sea to IRELAND gazette.ie Law Society Gazette December 2020 COVER STORY 21

‘If you’re Irish, come into the parlour, there’s a welcome there for you.’ The road to Irish citizenship, however, might not carry the same ‘welcome on the mat’ for many foreign citizens. Carol Sinnott finds out whether this is the place for you

CAROL SINNOTT IS AN IMMIGRATION LAW SOLICITOR AND THE PRINCIPAL OF SINNOTT SOLICITORS, DUBLIN PIC: ALAMY/SHUTTERSTOCK//GAZETTE STUDIO 22 COVER STORY December 2020 Law Society Gazette gazette.ie

AT A GLANCE n The conferral of Irish citizenship has many benefits n Decisions to refuse and revoke citizenship applications have led to significant constitutional challenges n Recent jurisprudence sheds light on refusals to grant citizenship

rish citizenship can be acquired in a number of ways under the Irish Nationality and Citizenship Acts 1956-2004, as amended, including through naturalisation, which is the process by which the State may confer Irish citizenship upon a person as a privilege, not a right. Immigration to Ireland has led to the most significant rise in applicants for citizenship through naturalisation. Certain other recent factors have contributed to the rise in citizenship applications, such as Brexit and the Trump administration, as many British and US citizens with Irish roots avail of their entitlement to join the foreign birth register. The conferral of citizenship has many benefits, most notably the fact that an Irish citizen is also an EU citizen and is thereby entitled to all of the benefits derived from the EU directives on the right of citizens of the EU and their family members to move and reside freely within the territory of the member states. Recently, a number of decisions to refuse and to revoke citizenship applications have been the subject of very significant constitutional challenges. For the purposes of this article, it is proposed to examine some recent jurisprudence concerning refusals for reasons of character of the applicant and failure of the applicant to meet the residency requirements, and to examine recent jurisprudence in the area of revocation of citizenship, which renders the road to citizenship less straightforward that it ever was. Once a decision to refuse an application for naturalisation is made, there is no right of appeal, which means that the gazette.ie Law Society Gazette December 2020 COVER STORY 23 PIC: SHUTTERSTOCK

only means of challenging a refusal is by way In the recent Court of Appeal case of Erin go bragh of an application for judicial review before MNN v Minister for Justice, the court found In another recent case, Talla v Minister for the High Court. that the minister’s decision did not provide Justice, the applicant’s citizenship application the rationale for determining the basis was refused on the basis that the minister Four green fields upon which two road-traffic offences and was not satisfied of his ‘good character’ and The 2012 decision of the Supreme Court another alleged incident led to a decision referred to the applicant as having a “history in the case of Mallak v Minister for Justice that the appellant had failed to meet the of non-compliance with the laws of the established that the minister is under a duty to good-character requirement. The minister State”. provide an applicant with reasons for refusal, had made the decision without putting an The applicant’s judicial review application or at least to provide justification for not incident and its subsequent strike-out order was dismissed by the High Court, and providing reasons. Before Mallak, the High in its proper context. It was found that subsequently appealed to the Court of Court position was that the minister did not the minister did not consider the ‘alleged Appeal. The Court of Appeal was not need any reason for refusal, let alone provide incident’ as more than alleged. satisfied that the minister had considered one. The principle has since been extended by and weighed all relevant considerations, the case law referred to later in this article. t was clear that the court could not including the man’s explanations for the Section 15A(1)(b) of the Irish Nationality decipher what view the minister took of motoring offences. and Citizenship Act 1956, as amended, the alleged incident, but it was also Mr Justice Haughton stated: provides that the minister may, at her Ievident that the minister took some view, “Notwithstanding that the minister has absolute discretion, grant the application as otherwise there would have been no an absolute discretion in determining an if satisfied that the applicant is of good need to refer to the nature of the alleged application for a certificate of naturalisation, character. Recent case law has established incident when coming to the decision on the it is beyond question that the minister has a that the minister is obliged to provide a applicant’s character. The court ordered that duty to act fairly and judicially in accordance proper rationale as to why character was the minister’s decision be quashed, and that with the principles of constitutional justice. called into question and, indeed, if the the application be readmitted to the minister It follows that, in addressing the condition applicant is ultimately refused, the rationale for consideration in accordance with the that an applicant be of ‘good character’, for that refusal. rules of natural and constitutional justice. the minister must consider and analyse 24 COVER STORY December 2020 Law Society Gazette gazette.ie

ONCE A DECISION TO REFUSE AN APPLICATION FOR NATURALISATION IS MADE, THERE IS NO RIGHT OF APPEAL, WHICH MEANS THAT THE ONLY MEANS OF CHALLENGING A REFUSAL IS BY WAY OF AN APPLICATION FOR JUDICIAL REVIEW BEFORE THE HIGH COURT

all relevant material, and a failure to do relied on was outweighed by “national in the State amounting to four years. so makes the lawfulness of the decision security considerations” in maintaining A refusal by the minister to accept that susceptible to judicial review. confidentiality over the information the applicant was continuously resident in “Put another way, the appellant had a concerned. the year prior to making the application was legitimate expectation that the material The argument was upheld by the High challenged in the 2019 case of Roderick Jones favourable to him, including explanations for Court and the Court of Appeal. The v Minister for Justice. road-traffic offences, would be considered Supreme Court held that the ultimate In July 2019, the High Court ruled that and weighed by the minister.” decision on whether the State’s interests the then practice of the Minister for Justice outweigh the requirement to provide in allowing applicants six weeks out of the he court did note that a citizenship documents is one that must be made by a country, for holiday or other reasons, and applicant must disclose previous court rather than a State authority. The more time in exceptional circumstances, convictions, even if ‘spent court held that a failure to give more detailed was not permitted by section 15(1)(d) of the Tconvictions’, and that the minister is entitled reasons can only be regarded as justified Citizenship Act (as amended), but also that to have regard to what would otherwise if that failure impairs the entitlement to ‘continuous residence’ required presence be spent convictions in considering good reasons to the minimum extent necessary. in the State, uninterrupted by even a single character for citizenship applications. This It held that the State did not abide by the night’s absence over the 365 days of the year. is an important observation to be noted by principles of proportionality in impacting applicants who are applying for citizenship, the rights of Mr P to the minimum extent. he Court of Appeal decision delivered and who mistakenly believe that spent On 1 October 2020, the Minister for in November 2019 provided a convictions are not of relevance to their Justice Helen McEntee announced the welcome clarification on the law application. establishment of a single-person committee Tgoverning absences from the State for The court held that the minister, in of inquiry, which will be served by retired persons applying to be granted a certificate particular, failed to express his rationale for High Court Judge John Hedigan. The of naturalisation. deciding that the ‘nature of the offences’ committee is being established to review, The Court of Appeal overturned the meant that the applicant was not a person of upon request from the applicant, the continuous residency finding of the High ‘good character’. material upon which the decision to refuse Court. It found that the policy of the a certificate of naturalisation was made, in minister was not a rigid or inflexible policy, Back home in Derry circumstances where the basis of refusal is, and that the policy was reasonable. The court There has been a growing number of in whole or in part, predicated upon national found that the requirement of ‘continuous refusals in recent years based on national security concerns. residence’ does not require uninterrupted security concerns. In May 2019, the presence in the State throughout the entirety Supreme Court ruled in the case of AP v Spancil Hill of the relevant year, nor does it impose a Minister for Justice regarding the refusal to Section 15(1)(d) of the Citizenship Acts, complete prohibition on extra-territorial grant naturalisation to a recognised refugee as amended, provides that a condition of travel, as the High Court had suggested. on national security grounds. naturalisation for applicants not relying The court concluded that the minister The minister provided no reason for upon marriage or civil partnership is that the was correct in finding that the applicant the refusal, relying on certain provisions applicant has had, immediately prior to the did not satisfy the continuous residency of the Freedom of Information Act 1997, as date of the application, one year’s continuous requirement, and noted that the fact that amended, and for reasons that the appellant’s residence in the State and, during the eight most of the absences from the State were not rights to know the content of the materials years preceding that period, a total residence work related was ‘material’. The court found gazette.ie Law Society Gazette December 2020 COVER STORY 25 PIC: ALAMY 2008, who is serving a sentence in the US after pleading guilty to having conspired to materially assist a terrorist group. The appellant was served a revocation notice on the basis of having shown disloyalty to the State. No revocation decision had been made at the time the applicant instituted his judicial review proceedings. In 2019, the High Court dismissed the applicant’s judicial review application, which primarily challenged the legality and constitutionality of section 19 of the Citizenship Act. The Supreme Court concluded that, because of the drastic consequences a revocation of naturalisation might have, a high standard of justice must apply. The Supreme Court held that that process provided for in section 19 did not provide the procedural safeguards required to ‘Howaya, horse?’ ‘Not too bad, Trigger, not too bad.’ meet the high standards of natural justice applicable. In particular, an applicant that the approach taken in the case was e) A person has by any voluntary act, must be entitled to a process that provides “reasonable”, and held that the minister’s other than marriage, acquired another minimal procedural safeguards, including an policy was not unlawful. citizenship. independent and impartial decision-maker. While the decision provides significant It held that section 19 was invalid, having clarity on the law, further clarity and reform In the recent case of UM (a minor) v Minister regard to the provisions of the Constitution, is required in the area, particularly in for Foreign Affairs and Ors, the applicant’s and it allowed the appeal from the High relation to the six-week absence policy and father procured citizenship in the State Court decision. what exceptional circumstances and work- because his father had been present in the related travel are allowed. The judgment State as a recognised refugee for the requisite takes us back to the position, pre July 2019, period, pursuant to the Citizenship Acts. LOOK IT UP where absences of up to six weeks were However, his father’s declaration of refugee CASES: permitted, with no guidelines related to status was revoked for reasons that it had been n Ali Damache v Minister for Justice work or allowable absences in exceptional granted after false and misleading information and Equality, Ireland and the Attorney circumstances. had been provided to claim asylum. General [2019] IEHC 444 n AP v Minister for Justice and Equality Fiddlers’ Green he minister failed to accept that [2019] IESC 47 There has been an increase in the revocation UM was an Irish citizen, and UM’s n Mallak v Minister for Justice, Equality of Irish citizenship by the minister in recent application for an Irish passport was and Law Reform [2012] IESC 52; [2011] years. The minister may revoke a certificate Trefused on that basis. Stewart J in the High IEHC 306 of naturalisation under section 19(1) of Court held that residence procured in that n MNN v Minister for Justice and Equality the Citizenship Acts for a variety of reasons, way could not be deemed to be reckonable [2020] IECA 187 including: residence for the purposes of citizenship. n Roderick Jones v Minister for Justice a) The certificate was procured by fraud, The Court of Appeal upheld the High and Equality [2019] IECA 285 misrepresentation, or concealment of Court’s finding and found that the revocation n Talla v Minister for Justice and Equality material facts or circumstances, of the applicant’s father’s declaration of [2020] IECA 135 b) A person may have shown himself to have refugee status meant that the declaration was n failed in his duty of fidelity to the nation not in force during the time he was physically UM (a minor) v Minister for Foreign Affairs and Trade, Passport Appeals and loyalty to the State, present in the State and, therefore, his officer David Barry [2020] IECA c) A person has been ordinarily resident residence was not deemed reckonable for the 154; [2017] IEHC 741 outside of Ireland for a period of seven purposes of his son’s citizenship application. years without reasonable excuse, and has LEGISLATION: not during that period registered annually The west coast of Clare n Freedom of Information Act 1997, as in the prescribed manner his intention to On 14 October 2020, the Supreme Court amended retain citizenship, delivered its judgment in a highly significant n Irish Nationality and Citizenship Acts d) The person to whom it was granted is also case concerning the issue of revocation of 1956-2004, as amended (Citizenship under the law of a country at war with the citizenship. Ali Damache v Minister for Justice Acts) State, or concerns the appellant, an Irish citizen since 26 PROFILE December 2020 Law Society Gazette gazette.ie

The Law Society’s new president is something of an enigma. Equally at home designing boats, replacing an engine, or solving a tricky conveyance, James Cahill talks to Mark McDermott about his year at the helm

MARK MCDERMOTT IS EDITOR OF THE LAW SOCIETY GAZETTE

High-seas honeymoon a six-storm ordeal’; ‘Lost crew sail home’; and ‘Cheers in Clew Bay’ – just some of the headlines that made the news in November 1986, when James Cahill and his wife Katherine, along with her sisters Carmel and Fionnuala and a family friend Jarlath Cunnane, finally sailed into Clew Bay on board Ricjak. In a subsequent interview, James commented: “We endured six storms after we left Boston, but nothing was as bad as the storm after we hit landfall at Slyne Head, off west Galway. The waves towered 35 feet above and the swells were as wide as football pitches. We were never before in such grave danger. We were near the coast and we thought we could be sunk.” “The mast was almost touching the waves,” Carmel added. “Then one gigantic wave came right over us and completely submerged us.” They were blown up the coast in the darkness, past Achill Head towards Donegal Bay. “We were praying hard, I can tell you,” James said. ‘THE RELUCTANT LAWYER gazette.ie Law Society Gazette December 2020 PROFILE 27 ALL PICS: MICHAEL MCLAUGHLIN 28 PROFILE December 2020 Law Society Gazette gazette.ie

THE ATLANTIC DEALT THEM A ROTTEN HAND, SERVING UP SIX STORMS SHORTLY AFTER THEY LEFT AND EVENTUALLY SPEWING THEM UP IN IRELAND AFTER EVERYONE THOUGHT THEY HAD BEEN LOST AT SEA

The boat and its crew put in at Inishlyre James is a man with as many facets as a His dad initially set up in partnership in Island, in sight of Croagh Patrick, at 5am, kaleidoscope. The most obvious labels to Dublin immediately after the war but, within where they made contact with island friends attach to him are ‘James the solicitor’, ‘James two years, ran into unexpected difficulties as a who welcomed them home. From there, they the sole practitioner’, ‘James the Mayo man’, result of a dishonest partner. He describes the phoned family members and friends to let and ‘James the family man’. But how about impact on his dad as being significant, but is them know they were safe. ‘James the welder’, ‘James the mechanic’, incredibly proud of how he handled it. ‘James the builder’, ‘James the boat designer’, Colourful kaleidoscope ‘James the sailor’, or ‘James with dyslexia’? Father’s footsteps? Thirty-four years, almost to the day, I’m Was it expected that James would follow in his interviewing James Cahill, the Law Society’s he second in a family of five – and father’s footsteps? new president. I’ve known James for the best the only boy – James was born in “No, absolutely not,” says James. “He said to part of 14 years, having first come across him 1953 and reared in Castlebar, Co me when I was around 21 that he would not be at the Law Society’s annual conference in TMayo. His dad John qualified as a solicitor leaving the firm to me and that, when the time Dubrovnik in April 2006. But relatively early in in 1935 and his mother Carmel was a came, he would be winding down the practice.” the interview, I realise I don’t know him at all. physiotherapist. At any rate, James was entirely uncertain about the career he wished to follow. He had

PIC: MATT KAVANAGH studied at UCD and tells how he had worked in an office for about 18 months, around 1979, before qualifying as a solicitor. “I wanted to be self-employed and to work in the West of Ireland,” he says. “My father had begged me to go and work in an office for six months, learn how to make a living, ‘and, when you’ve done that, you’ll be off my conscience. I don’t care if you never walk into an office for the rest of your life’! “That’s the honest truth, that’s what he said to me! He had the psychology right, so I agreed. As far as I was concerned, I’d spent a lifetime locked up in school, and wasn’t going to be locked up again. “But then I got so committed, met exactly the right people who had all sorts of problems on their hands, and I got stuck in and had great fun.”

Main energy His career wasn’t the main focus of his life at that stage, though. His energy was directed The crew members of Ricjak celebrate their safe return towards a 43ft steel boat that he had designed gazette.ie Law Society Gazette December 2020 PROFILE 29

and was in the process of building. The goal “He turned around and said, ‘Well actually, met but who thought that the sailing trip was was to get Ricjak built and to sail it around the I could do with somebody myself’.” a great idea. Unbelievably, he had opened an world. Still needing money to finish his boat, he account for me in the Bank of Ireland in New “I couldn’t get this boat built, you know. took to building trailers in the evenings and York and had deposited money in it and sent No matter where I looked, I needed £1,000 weekends. “Literally, I was out of the office me a credit card. Other than that, I would here and a £1,000 there. I knew that my work and into my overalls.” have been leaving with £800 in my pocket!” as a solicitor wasn’t going to help pay those They set sail for Portugal and the Canaries bills, since payments were too erratic. A friend t was around this time that he met his with two of Katherine’s sisters. Then it was of mine was working for a large electrical wife to be, Katherine Killalea, from onwards to the Caribbean and from there contractors called MF Kent in Clonmel. Swinford in Mayo. James was still to Florida and up the east coast of the US. They agreed that they would take me on for Iworking for Michael Browne in Garvey Eventually, they docked the boat in Georgia a power-station project in South Africa. They Smith & Flanagan, largely doing work for and travelled across the continent. would pay me £23,000 into my hand, no tax, Mayo County Council. A job came from no nothing, working for a year. I’d be billeted a New York attorney. “In the course of a Upturned yacht at the power station doing electrical work, conversation with him, I told him my plans. It would be the following November by they’d give me an induction course, I’d be I’d give whatever time I could to his job, but the time they would see Ireland again. The fed and watered, and I could work overtime I was building a boat and was heading to the Atlantic dealt them a rotten hand, serving up anytime I wanted it. United States the old-fashioned way, via the six storms shortly after they left Boston, via “Well, things don’t ever work out quite Caribbean, and nothing was going to stop me. the Azores, and eventually spewing them up according to plan. Another opportunity “Katherine and I got married in August in Ireland after everyone thought they had presented itself. So I went to a man I was very 1985. With the boat ready, we were planning been lost at sea. friendly with in Mayo Sailing Club, Michael to set sail for 12 to 18 months on an extended Two boats had already tried to get to Browne, who is now an elderly retired honeymoon. That summer was shocking,” Ireland from the Azores and had been solicitor. I told Michael of my dilemma. I’d James recalls. “There was nothing but gales unable to make it – one had had to return given up my job, I was heading for South and I couldn’t get out of the place, the due to damage. “I phoned an acquaintance Africa in two-and-a-half weeks, and would he weather was so bad. Anyway, we eventually who was working at a weather station in mind checking around discreetly with a few got away in late September but, just before Valentia to say that we were coming,” says solicitors to see if there was anyone looking I left, a message came to my house from the James. “Around 12 days later, a fishing for somebody. lawyer in the United States, who I’d never boat spotted an upturned yacht in Donegal 30 PROFILE December 2020 Law Society Gazette gazette.ie

Bay, which happened to be the same colours as my own boat, and the guessing game started. The press, of course, were enquiring and contacted Valentia. In their estimation, we should have got up within 10 or 12 days – this was day 12 or 13 and they all jumped to the wrong conclusion. Unfortunately, due to the bad weather and the long voyage, our batteries were flat and we had no way of radioing anyone to let them know we were safe. Our families and friends were mighty relieved when we got the news to them.”

n a high after their safe return, James admits to finding it very difficult to get back in the saddle. “IO was getting invitations from sailing clubs all over the country to give talks.” The fun eventually came to an end though and, with money he’d been paid for doing a radio interview with the Gay Byrne Show, he used it to prime his new business and opened Cahill and Cahill to the world on New Year’s Day 1987. “I had been active in the Mayo Solicitors’ Bar Association from day one and was friendly with all the solicitors. I went around to their offices asking them for any files that might have been causing them difficulty.” The “load of files” he collected convinced him that he could make headway with the new business, with the promise to his colleagues that he would return the files if he got busy, unless he managed to finish them first. “In that way, I was relatively busy from the beginning,” he says. Today, Cahill and Cahill is a general legal James’ self-designed, self-built Ricjak practice that consists of James and another solicitor, Keith Finnan, who are supported achieve this height – it’s wonderful! Overdue recognition by three administrative staff. “I feel extraordinarily privileged, not only He is also keen to mark the long service of to be president, but to have been a solicitor more than 1,570 solicitors around the country. How does it feel? over the years in circumstances where I “I plan to celebrate and honour all solicitors What does it mean to him, becoming the wasn’t exactly the ideal candidate, one might who have been on the roll for 40 years and 150th President of the Law Society? His say, because of my reading difficulties. For more by presenting them with a celebration response is slow in coming, and I detect a me personally, it will bring my career to a package that will include a bronze plaque. certain emotion in his reply: “As a person lovely conclusion – that at least I’ll be able to “Recognising the important role that our who never saw myself as a lawyer, in that say that I achieved that position.” younger solicitors will play, it is key that we time-honoured sense of the word, it shows During his term, James plans to focus value the solicitors of the future by engaging that there is tremendous scope for different on encouraging greater friendship in the with our students. I will be actively seeking types of people within the community of profession. “Many solicitors and their the involvement of young solicitors in Law solicitors in this country. It’s a reflection staff are feeling desperate, isolated and Society activities so that they will feel invested of the openness in the profession, and lonely,” he said. “Friendship, allied with in the workings of the profession. The gala I think that’s a wonderful testament, mindfulness and mental health, contain the dinner next autumn will focus on our younger notwithstanding the imperfections that vitally important ingredients for personal solicitors.” any organisation has. My parents would be development. These are needed to underpin James is conscious that 2021 will mark delighted if they were here to see it. The a healthy work/life balance and a positive the 100th anniversary of the Law Society fact that somebody like me could manage to personal life.” representing solicitors in the 26 counties. gazette.ie Law Society Gazette December 2020 PROFILE 31

I FEEL EXTRAORDINARILY PRIVILEGED, NOT ONLY TO BE PRESIDENT, BUT TO HAVE BEEN A SOLICITOR OVER THE YEARS IN CIRCUMSTANCES WHERE I WASN’T EXACTLY THE IDEAL CANDIDATE, ONE MIGHT SAY

Many bar associations share the same wider profession in the work of small Overwhelming demands longevity. The new president will be practices, and will support members and He believes that solicitors are overwhelmed encouraging them to start compiling their member services generally. “The goal will by the increasing demands of practice – associations’ histories. In addition, he looks be to identify the issues affecting smaller particularly those being increasingly pushed forward to attending meetings of the Law firms, and to act as a sounding board for on them by Government, local government, Society with the presidents, secretaries and the challenges facing them,” he says. “The and external agencies. PROs of the bar associations, regarding them task force will consider and advocate to the “The demands on solicitors are coming as good sounding boards. Society’s Council for initiatives that will from every possible direction. Obligations He is animated about the establishment support firms in running their businesses, and responsibilities are being foisted of the Society’s new Practice Support Task and will help them towards commercial on us with little or no consultation. It’s Force. This will act as a champion for the success.” not a badge of honour to be landed with more obligations and responsibilities. The obligations being imposed on us are onerous and often carry significant SLICE OF LIFE sanctions. We must consider the longer- term effects on our practices, our PI n Family life man to sail singlehandedly around the world in My wife is Katherine Killalea (who is also a Mayo 1895 to 1898. Because he had spent his life at insurance, the regulatory risks, and the solicitor). We have three children: Conor runs his sea on ships, he wrote in short, pithy sentences. effect on the upcoming generation of own business in Galway, Ellen has a doctorate in solicitors. “We are the target for powerful instit- biomedical engineering and is currently at sea n Current pastime in the Atlantic, and Fionnuala is a doctor in the My pastime is making things. When I bought utions that offload their responsibilities Mater Hospital. this place, which was built in 1875, there were and, by stealth, channel them in our 12 houses on it. I have been refurbishing them direction. We must be consulted and agreements reached. I believe that it’s n Most influential person? every weekend for the last 30 years. My father. As well as running his firm, he was time to call a halt. The message has to be ‘enough is enough’. Solicitors will not lie chair of the Municipal Authorities of Ireland from n Favourite alternative job 1961-1962 and of Castlebar UDC. He repre- I would love to have been a yacht designer but down and allow endless obligations to be sented Ireland on the Local Government Com- there was no possibility of ever making a living heaped on us.” mittee of the Council of Europe and, in 1962, at it. That said, I’m the only person in these Will his stint as Law Society President was elected to its standing committee. The same islands to design, build, and sail a boat across signal has ‘last hurrah’? year, he was appointed to the Conroy Ground an ocean. “I’m a sailor masquerading as a lawyer,” Rents Commission. The Government adopted his he smiles. “My plan is to sail around the world. I have the boat already organised for minority report, which passed into the Landlord n Favourite holiday destination? and Tenant (Ground Rents) Act 1967. Adventure on the high seas. it. Nothing will stop me, other than bad health. I’m planning to circumnavigate the world. Two years from now, I hope to be on n Favourite author n Something surprising about you One of the first books I read that galvanised me to I played the violin and later the melodeon and my way to South America. I’ll be heading consider a nautical life was Sailing Alone Around harmonica, which I still play. I have a good ear to Argentina for starters. From there, I plan the World, by Joshua Slocum. He was the first for music. to head around Cape Horn, and who knows where after that!” 32 LITIGATION December 2020 Law Society Gazette gazette.ie PIC: ALAMY gazette.ie Law Society Gazette December 2020 LITIGATION 33

AT A GLANCE n It appears that climate change – in particular, prolonged dry and/or hot weather – has resulted in a considerable increase in subsidence claims n Where potential signs of subsidence in a building (for example, cracks appearing in walls) occur, the owner should immediately have the matter professionally investigated and, if warranted, make a claim without undue delay

Considerable uncertainty still surrounds the question of when claims for subsidence accrue, and when they become statute- barred. Patrick E Keane lays the foundations

PATRICK E KEANE IS A DUBLIN-BASED SENIOR COUNSEL

ubsidence is, typically, the downward movement of a site on which a building stands – where, for example, the soil beneath the building decreases in volume, causing the building’s foundations to become unstable. There are many causes of subsidence, including leaking drains and tree roots. Subsidence cracks tend to be more vertical than horizontal. It appears that climate change, and in particular prolonged dry and/or hot weather, has resulted in a considerable increase in such claims, since drought results in a decrease in soil volume, making clay soil particularly vulnerable. Subsidence claims appear likely to increase in the future.

The Brandley case Considerable uncertainty still surrounds the question of when claims for subsidence accrue, and when they become statute-barred. In the Supreme Court case of Brandley v Deane, McKechnie J dealt with the situation where a claim for subsidence was already statute-barred in contract, but the question remained whether it was also statute-barred as a tort. Dealing with when the cause of action accrued, he stated (at paragraph 2 of his judgment): “This area of the law has been bedevilled with misdescription, lack PIC: ALAMY of clarity, and confusion between terms which are quite different, and with their interchangeable use when it is ill-judged and inappropriate to do so.” 34 LITIGATION December 2020 Law Society Gazette gazette.ie

He was of the view that there were five PIC: SHUTTERSTOCK Implied in that conclusion is the further distinct possible starting points from which finding in Brandley that a cause of action in the clock might run for limitation purposes, negligence is not complete until actionable namely: damage has occurred. • The date of the wrongful act, A useful summary of the views in • The date that the damage occurs, McKechnie J’s judgment are contained in • The date that the damage is manifest, his approval of the judgment in the 1996 • The date of discoverability, and New Zealand case of Invercargill City Council • The date on which the damage is actually v Hamlin: “The plaintiff’s loss occurs when discovered. the market value of the house is depreciated by reason of the defective foundations, and In the case in question, the foundations of not before. If he resells the house at full the two houses involved were completed in value before the defect is discovered, he has March 2004, when the first-named defendant suffered no loss. Thus, in the common case, (Mr Deane, the consulting engineer) issued the occurrence of the loss and the discovery his certificate of compliance with planning of the loss will coincide … In other words, permission and building regulations. The the cause of action accrues when the cracks second defendant was the contractor who become so bad, or the defects so obvious, laid the foundations. The houses were that any reasonable homeowner would call completed between September 2004 and in an expert. Since the defects would then be January/February 2005. In December obvious to a potential buyer, or his expert, that 2005, the plaintiffs observed that cracks marks the moment when the market value of had appeared in each of the houses, but the the building is depreciated, and therefore the plaintiffs did not issue their proceedings moment when the economic loss occurs … until 30 November 2010. McKechnie J pointed out that, in The measure of the loss will then be the cost negligence, some actual damage beyond what of repairs, if it is reasonable to repair, or the he High Court judgment in can be regarded as negligible must occur depreciation in the market value if it is not.” the Brandley case dismissed the before the tort can be said to be complete. In Brandley, the parties had agreed that the plaintiffs’ claim, since it was held that Accordingly, the occurrence of a wrongful act discoverability test was not applicable. But, Tdiscoverability could not be the relevant resulting from an established breach of duty to many, it may appear that, between damage starting date. But in the Court of Appeal, will not itself constitute a cause of action. being discoverable and being manifest, there Ryan P, giving the judgment of the court, The parties agreed that the discoverability is a distinction without an obvious difference. took the view that the High Court judgment test was irrelevant. McKechnie J regretted Understandably, McKechnie J expressed was in error, in that negligence without the the irrelevance of the test in cases such as the view that the introduction of a statutory accompaniment of damage or loss was not Brandley: “As a result, as matters presently discoverability test in such cases would be actionable. stand, this court cannot provide for any desirable. He stated: “The plaintiffs did not suffer manner of discoverability test in cases of this damage at the time when the defective nature, even though the introduction of such Limitation periods foundations were installed. When the a test would greatly enhance the clarity of the From the point of view of a litigant, there defective foundation was put in, the only law and also defeat the harshness and injustice may be some difficulty in understanding why complaint that the plaintiffs could have had which persists under the current scheme. different periods of limitation should apply, was that the foundation was defective.” That, as above stated, is a most regrettable firstly, in the case of breach of contract and, Ryan P found that the damage resulting state of affairs.” secondly, in the case of a tort (other than one from the defective foundations happened in Accordingly, it was held that the time limit that is actionable, per se). December 2005. on negligence actions begins to accrue on In the case of a breach of contract, the the date on which damage manifests itself, limitation period accrues on the date of the Supreme Court appeal and not the date on which the damage is breach. The defendants/appellants obtained leave to discovered. The cause of action will not In the case of a tort, the cause of action is appeal to the Supreme Court on three points, accrue until actionable damage has been not complete until the plaintiff has suffered which could be summarised as the question of caused. It is not the defect that needs to be consequent loss. when time runs for the purpose of the Statute capable of discovery: it is the subsequent In the Gallagher case referred to above, of Limitations in property damage claims. physical damage caused by that defect. O’Donnell J dealt with the illogicality of The appellants relied, among other things, McKechnie J continued: “In my view, time different limitation periods applying in on the Supreme Court decision in Gallagher begins to run from the date of manifestation contract as distinct from tort: “Where v ACC Bank in support of the contention of damage, which means it runs from the appropriate, the policy of the law should be that it was not necessary for a plaintiff to time that the damage was capable of being to minimise rather than expand the disparity await the full quantification of losses before discovered and capable of being proved by the between the running of time in contract and commencing an action for damages. plaintiff.” tort cases, at least when the wrongdoing gazette.ie Law Society Gazette December 2020 LITIGATION 35

FROM THE POINT OF VIEW OF A LITIGANT, THERE MAY BE SOME DIFFICULTY IN UNDERSTANDING WHY DIFFERENT PERIODS OF LIMITATION SHOULD APPLY, FIRSTLY, IN THE CASE OF BREACH OF CONTRACT AND, SECONDLY, IN THE CASE OF A TORT alleged is identical … The suggestion that insurer may seek to avoid liability on the basis same before the conclusion of the contract contract and tort should, where possible, of that delay. There is no point in having (schedule III, paragraph 1). offer the same answers to the same question is subsidence insurance, if it is not availed of It is important to note that, where an not simply a case of seeking an unobtainable where necessary. Accordingly, the insured insured alleges its entitlement to avoid elegance of pattern: rather it is a question should ensure that a claim for subsidence is payment under a policy on the basis of an of seeking to achieve a fair and predictable made at the earliest relevant time. exclusion or exemption from liability under result.” the policy, the onus of proof in that regard The Gallagher case concerned a failed ut in the event of a dispute between is on the insurer. (See the 2005 judgment investment, and O’Donnell J pointed to the the insured and the insurer in relation of Geoghegan J in Analog Devices BV and further illogicality of different limitation to whether the claim was made in Others v Zurich Insurance Co and Another.) periods for contract and tort: “In theory, a time,B and where the insured is a ‘consumer’ Where potential signs of subsidence in a wronged plaintiff should be able to maintain for the purpose of the Consumer Protection building (for example, cracks appearing in all claims arising out of the same transaction, Code 2012, as amended, the insured should walls) occur, the owner should immediately but that would only be possible on this rely on his or her relevant rights under that have the matter professionally investigated hypothesis by initiating the contractual claim, code and/or under the Consumer Protection Act and, if warranted, make a claim without then delaying it, and then seeking to amend 2007, as amended. undue delay. it to include the tort action alleged to have Furthermore, depending on the terms accrued. Even more oddly, if, as was suggested of the relevant insurance contract – and, in argument in this case, the cause of action again, where the insured is a ‘consumer’ – in tort might accrue at a point during the the insured may have relevant rights where LOOK IT UP investment period when, to use a phrase the term or terms invoked by the insurer to CASES: fraught with its own difficulties, it was clear avoid payment under the policy are ‘unfair n Analog Devices BV and Others v that the investment was doomed to fail, then terms’ within the meaning of the European Zurich Insurance Co and Another it would follow that that point could only be Communities (Unfair Terms in Consumer [2005] IESC 12 determined with certainty after the case had Contracts) Regulations 1995. n Brandley v Deane [2017] IESC 83; been heard and decided.” Paragraph 3.2 of the regulations provides: [2016] IECA 54 There should not be a distinction in acc- “For the purpose of these regulations, a n Gallagher v ACC Bank PLC [2012] rual of a cause of action in tort as between a contractual term shall be regarded as unfair if, IESC 35; [2012] 2 IR 620 doomed-to-fail investment (as in Gallagher) contrary to the requirement of good faith, it n Invercargill City Council v Hamlin and a doomed-to-fail foundation of a house, causes a significant imbalance in the parties’ [1996] AC 624 though that distinction favours a plaintiff in rights and obligations under the contract to n Noble v Bonner and Others [2019] the latter. the detriment of the consumer.” IEHC 590 An unfair term in a contract concluded Insurance claims with a consumer by a seller or supplier is not LEGISLATION: In many subsidence claims, the dispute (unlike binding on the consumer (paragraph 6.1). n Consumer Protection Act 2007 in Brandley) will be between the householder Among the grounds on which relevant terms n Consumer Protection Code 2012 and the insurer. may be deemed unfair is where the insured n European Communities (Unfair Terms In those cases where the insured failed to was purportedly irrevocably bound by the in Consumer Contracts) Regulations notify a claim for subsidence to the insurer said unfair terms, without having had any real 1995 (SI 27/1995) within the time specified by the policy, the opportunity of becoming acquainted with 36 PENSIONS December 2020 Law Society Gazette gazette.ie PIC: SHUTTERSTOCK/GAZETTE STUDIO

CAN’T TAKE IT WITH YOU gazette.ie Law Society Gazette December 2020 PENSIONS 37

The pandemic has brought pension schemes into the spotlight. Stephen Gillick looks at death-in-service benefits and highlights the impact that COVID-19 has had on them

STEPHEN GILLICK IS A PARTNER IN MASON HAYES & CURRAN AND CHAIR OF THE LAW SOCIETY’S PENSIONS SUBCOMMITTEE

AT A GLANCE n Many employers provide a death-in-service benefit to employees through full or partial pension-scheme membership n The manner in which the pandemic exploded over the course of a couple of weeks meant that procedures had to be adopted and protocols reviewed to ensure that benefits could continue to be assessed and paid n As the period of initial panic passes, now is the time for all concerned to review how the payment of benefits operated, and what changes are required

t is not uncommon for pension schemes to provide benefits that are payable when a member dies. Typically, these benefits consist of lump-sum payments or pensions that are payable to the member’s spouse or other dependants. Death-in-service benefits had taken something of a back seat to concerns relating to the employer contribution, regulatory guidance, and the State-pension age debate. However, death benefits have come into sharp focus during the past few months, as employers and trustees wrestle with the impact of the COVID-19 pandemic on pension schemes.

Killed by death Many employers provide a death-in-service (DIS) benefit to employees through full or partial pension-scheme membership. The DIS benefit will be payable to a member’s dependants in the event of his/her death, and it is usually insured with a life company. Where the insured member dies in service before their normal retirement age, a lump sum not exceeding the greater of €6,350 or four times the deceased member’s final remuneration may be provided to their dependents. In addition to the lump sum, an approved scheme may also provide a pension to a spouse, civil partner or specified dependant. The pension 38 PENSIONS December 2020 Law Society Gazette gazette.ie PIC: SHUTTERSTOCK

payable can be an amount not exceeding unknown cost and duration of payment. A to facilities and documentation. the maximum aggregate pension that would higher lump-sum payment may be more Many schemes had set protocols that have been approved for the member if they attractive to some employees, but would also needed to be met, and the circumstances had retired on ill-health grounds on the result in a payment of tax, as the approved created by the pandemic had the potential to date of death. A spouse or civil partner’s (but Revenue limit for the payment will be result in delays to payments. For example, not a dependant’s) pension may be deferred breached. on receiving notification of the death of instead of being taken immediately. a member, scheme administrators should Gimme shelter immediately check to see if the member n recent years, we have seen a trend The manner in which the pandemic provided a letter of wishes or nomination whereby employers are offering exploded over the course of a couple of form. The deceased member’s death employees the opportunity to trade a weeks meant that procedures had to be certificate should also be requested from the spousalI or dependant’s pension in exchange adopted and protocols reviewed to ensure solicitor acting for the deceased’s estate. It for a higher lump-sum payment. Often the that benefits could continue to be assessed should also be quickly established whether lump sum offered is in excess of ten times and paid. or not there is a pension adjustment order salary. Exercises such as these operate as a Scheme administrators had to ensure on record for the deceased. risk-reduction opportunity for employers. that staff were well briefed on up-to-date COVID-19 created obvious difficulties This is because lump sums are more DIS procedures. These procedures had to in completing each of these tasks, and predictable and cheaper to provide than be amended quickly and often to maintain mechanisms whereby they could be spousal or dependants’ pensions, which compliance with the ever-developing accomplished in a timely basis needed are more expensive and riskier due to their situation. Difficulties arose with access to be designed.

Just got paid An immediate concern was whether the pandemic might result in payments being refused due to the wording of the underlying insurance policies. This was especially the FAILURE TO TAKE case where, in the opening weeks of the health emergency, the likely death rate was APPROPRIATE DECISIONS unknown and represented a huge risk to insurance companies. IN A TIMELY MANNER WILL Where a scheme’s DIS benefit is provided through an insurance policy, the trustees ONLY COMPOUND ALREADY have to check to see whether the policy is affected by a pandemic-type event and DIFFICULT CIRCUMSTANCES whether it contains an ‘event-limit’ clause, as an event limit will cap the total losses – AND COULD ALSO RESULT payable under a policy. An event limit clause is typically expressed IN COSTLY LITIGATION either on a per-occurrence basis or on an gazette.ie Law Society Gazette December 2020 PENSIONS 39

WE HAVE NOT SEEN ANY DIS PAYMENTS BEING REFUSED AS A DIRECT RESULT OF THE PANDEMIC. THE OUTCOME MAY HAVE BEEN DIFFERENT IF THE PANDEMIC HAD RESULTED IN A HIGHER DEATH RATE WHICH, THANKFULLY, HAS NOT BEEN THE CASE TO DATE aggregate basis. An immediate concern be stored electronically. It is important to quickly communicated to them so that the for pension-scheme trustees was whether retain original hard-copy documentation to employees concerned can make alternative such clauses might result in the failure of prevent future disagreements, as scanned private arrangements should they so wish. the insurance companies to pay the DIS documentation is often of a lesser standard As well as dealing with the tragedy of the benefits. An immediate action required the of legibility. death of a family member, the dependents trustees to obtain clarification from insurers of a deceased employee will need to meet and confirm if DIS benefits were affected. he pandemic also resulted in many certain immediate costs, such as funeral We have not seen any DIS payments trustee groups meeting on a more expenses, and in many instances will face being refused as a direct result of the informal basis due to social-distancing unforeseen financial upheaval. pandemic. The outcome might have been Trequirements. It is of crucial importance that It is in the interests of the scheme’s different if the pandemic had resulted in a all considerations concerning the payment employer, trustees and administrators to higher death rate which, thankfully, has not of a DIS payment are done on a formal establish the deceased member’s status at been the case to date. basis and full minutes recorded. A decision the date of death to ensure that his or her It will be interesting to see how the of the trustees concerning a DIS payment dependents are identified, and that the insurers amend their policy documentation that is done informally or without due procedure is completed as quickly and as in the coming months and years to take consideration could be challenged by other painlessly as possible. account of their experience of the pandemic, potential beneficiaries. and lessons they may have learned. Money Employers and trustees will need to become Good times, bad times There are many pitfalls that exist when aware of any such changes and communicate COVID-19 resulted in employees being one considers the payment of DIS benefits. these to employees, as appropriate. temporarily or permanently laid off from COVID-19 has exposed problems that need work. Employees who are permanently laid to be identified and solved by employers and Double trouble off are no longer entitled to DIS benefits, pension-scheme trustees. As the period of The manner in which letters of wishes are but more careful consideration needs to initial panic passes, now is the time for all stored and the contents recorded should be be given to employees who are affected by concerned to review how the payment of reviewed. Consideration needs to be given temporary arrangements. DIS benefits operate and what changes are as to whether they are stored securely and in Trustees should be apprised of relevant required. a way that facilitates access to the relevant provisions in the scheme governing All parties need to be sure that the individuals. It also needs to be determined documentation in order to establish if underlying benefit documentation is fit for where the data is recorded, whether as DIS benefits remain payable for scheme purpose, and that all employees are fully hard-copy documentation or retained members during periods of temporary aware of the benefits that they are entitled electronically. Letters of wishes should be absence or leave. to, and how future pandemics may affect reviewed on a regular basis to ensure that DIS provisions are typically found in the future benefit payments. they accurately reflect the wishes of the scheme rules, and the precise employment The beneficiaries must be at the heart of members. The employer should facilitate status of employees who are temporarily all decisions taken by trustees and employers. employees in this exercise. absent from work will need to be confirmed Failure to take appropriate decisions in a COVID-19 exposed the difficulty in by the employer. If employees are no longer timely manner will only compound already accessing hard-copy documentation and the covered for DIS benefits during such difficult circumstances – and could also result need, where possible, for documentation to periods of leave, this should be clearly and in costly litigation at a later stage. 40 WELLBEING December 2020 Law Society Gazette gazette.ie

Are we experiencing the level of sustainable wellbeing that we need to live a fulfilling and healthy life? If not, then something’s not right and we need to talk about it. Katie da Gama visits Q

KATIE DA GAMA IS A LAWYER AND LEADERSHIP DEVELOPMENT CONSULTANT IN DUBLIN THE WORLD IS NOT ENOUGH

have been spending some time recently thinking about what it means AT A GLANCE to experience wellbeing as a lawyer. I started out in my legal career in the n Feeling alone and fearing the late ’90s and what is clear to me is judgement of others that, when it comes to the discussion n Feeling guilty when you ‘have it all’ around mental health and wellbeing, n The problems that continue to exist a lot has changed for the better in in the legal community the intervening 20 years. We really n The importance of firms providing have come a long way since then, staff support and the stigma that used to shroud n The freedom to be able to seek help the topic and prevent lawyers from even discussing what it means to have mental health is carefully being lifted asked a question or needed his help. He was with the support of organisations, a colleague that I looked up to, and I recall charters and academia, as well as full thinking to myself at the time that I aspired conferences dedicated to illuminating to be like him when I ‘grew up’ and became the conversation. a successful senior lawyer. In one of my earliest jobs, I worked with a senior colleague who was For your eyes only incredibly knowledgeable in his One day, I arrived at the office and my field, very well-respected in the legal colleague was no longer there. His office had community, and someone been taken over by other people, and I was who gave generously told that I’d be working with someone else of his time whenever I from then on. It was only a number of weeks gazette.ie Law Society Gazette December 2020 WELLBEING 41 PIC: ALAMY

later that I discovered that he had become very little was spoken about our colleague, Never say never again unwell and, although I didn’t know it at the and it was almost as if he had never been Fast-forward 20 years, and thoughts of my time, had had a serious mental breakdown. part of the organisation. As far as I am colleague came flashing back when I made What was most shocking to me about the aware, he did not return to his role. In my the decision to examine my own mental situation was that I had always experienced naivety and in my position as one of the health. I realised something that felt familiar him as someone who ‘had it all’ – he was most junior people in the team, I didn’t feel and overwhelming – a sense of being alone successful, had many accomplishments to able to ask any questions, and I certainly with my feelings, of fearing the judgement his name, and always came across to me as didn’t know what was best to do in the of others if they knew my thoughts, and composed, calm, organised and unflappable. circumstances, so I put my head down and of the guilt for experiencing these feelings I couldn’t fathom how ‘someone like that’ carried on with my work in an effort to when I was in a privileged leadership could be grappling with his mental health. suppress the unnerving feelings about what position. I wondered whether my colleague In the weeks and months that followed, had happened, and why. had felt something similar. 42 WELLBEING December 2020 Law Society Gazette gazette.ie

I had worked hard during my career as PIC: ALAMY a lawyer. I had put in the hours, passed all the exams, achieved my billing target most years, gone to all the CPD conferences, and small-talked my way through countless business-development events. I had ‘made it’ to a senior level of the profession and had, in my own mind at least, become what I had aspired to be all those years ago. However, just as my colleague from my early career may have felt, I knew I wasn’t experiencing the level of sustainable wellbeing that I needed to live a fulfilling and healthy life. Something wasn’t right – and yet I didn’t know what that was.

ith professional help and guidance, I began to understand what wellbeing meant for me, commitment to examine and develop ways systems that exist for lawyers, I was struck andW I also learned that it holds a different in which all who want to are empowered to by the fact that, although much has been ‘truth’ for everyone – one size most succeed both professionally and personally. achieved, there is still much to do. Significant definitely does not fit all. Some people will problems continue to exist within the legal absolutely thrive on the cut-and-thrust of You only live twice community, and more is needed to ensure a life in the law, the striving for the perfect At the recent inaugural ‘Business of that the lawyers of today and tomorrow legal argument or ‘knock-out’ contract Wellbeing’ event hosted by the Law Society belong to a profession that continues to be clause, the intellectual stimulation of (see the November Gazette, p50), more than honest about the challenges it faces, and is debating and the ‘highs’ of winning. 450 participants listened to many robust in leading through the change that is Others will be sustained by the financial perspectives on wellbeing, and they required. rewards, the friendships of close colleagues, witnessed the power of discussion, as well as In its 2019 survey of members’ mental and the collegiality of their teams. But for the benefits of casting light on a previously health and wellbeing, the Law Society found a number of lawyers, like me, the years of hidden area of life as a lawyer. that solicitors in Ireland reported experiencing putting on the professional mask, rarely The personal stories shared by the considerably lower feelings of wellbeing than showing weakness or vulnerability, being speakers were inspirational; the thinking the EU average population score. Over 78% afraid of making a mistake, and hiding around mental health and wellbeing was of respondents confirmed that they regularly their authentic selves and their emotions innovative and refreshing, and the feeling experience significant stress at work, nearly takes its toll on health and wellbeing. coming away from the event was one of half indicated that their mental health had For these people – to allow talented and accomplishment. The lid had been lifted on been affected to a significant degree by their dedicated lawyers to thrive in their chosen an increasingly important theme for lawyers. role, and 25% acknowledged that their job profession – something more is needed: an And yet, with all of the initiatives that was overwhelming and negatively affecting honest appraisal of the culture of law and a have been developed, and the many support their lives.

SIGNIFICANT PROBLEMS CONTINUE TO EXIST WITHIN THE LEGAL COMMUNITY, AND MORE IS NEEDED TO ENSURE THAT THE LAWYERS OF TODAY AND TOMORROW BELONG TO A PROFESSION THAT CONTINUES TO BE HONEST ABOUT THE CHALLENGES IT FACES gazette.ie Law Society Gazette December 2020 WELLBEING 43

FOR EVERY €1 INVESTED IN THIS WAY, AN AVERAGE RETURN OF €6 IS ACHIEVED, WITH SOME INVESTMENTS PROVIDING AS MUCH AS A €10 RETURN, AND SOME INITIATIVES BEING COMPLETELY FREE OF COST BUT OF SIGNIFICANT BENEFIT

The psychologists who led the study The living daylights our stories, be candid about the challenges, reported that one of the challenges for the Many organisations and individuals are and have unashamed conversations profession is “the stigma and fear of being already leading the way. Following the around mental health. We can examine judged critically in the workplace” – very release of the Law Society’s commissioned our behaviours, become more aware of real barriers to seeking help. They went report, it launched the Wellbeing Hub cultural impacts, and be mindful of what our on to say that “some workplaces, through “to contribute to the improved wellbeing, colleagues and friends may be experiencing. ultra-competitive culture or normalising resilience and emotional and psychological Above all, we can choose how we show up, the overloading of staff, can become, health of its members”. The hub signposts and how we support those around us. inadvertently but actively, hostile towards reputable and independent wellbeing The legal profession is a strong and those who may need help”. supports, services and training. For fiercely determined group of individuals. example, it flags LegalMind, a confidential, We achieve momentous results for our Quantum of solace independent, and low-cost mental-health clients, we have diverse talents, and there What is encouraging, though, is that support, that is available to solicitors at any is huge potential for change. If we put our investment in mental-health and wellbeing time of the day or night. It also contains collective legal minds to the challenge of supports (ranging from employee- the Professional Wellbeing Charter for the ensuring the mental health and wellbeing of assistance programmes, to training mental- solicitors’ profession, alongside many other our colleagues, the likelihood of success is health ‘first-aiders’, as well as fostering a and varied resources. extremely high. supportive culture with open conversations In the educational space, the emphasis on around the subject) is good for business, in a the psychological wellbeing of trainees is a have been spending some time recently financial sense. central component of learning, and the fact thinking about what it means to that there is access for trainee lawyers to experience wellbeing as a lawyer. For he latest reports show that for every psychotherapy, both group and individual, is me,I it’s about belonging. It’s about being €1 invested in this way, an average to be actively celebrated. in an environment (whether a profession return of €6 is achieved, with some Beyond the Law Society, it is also clear or business) that not only allows me to Tinvestments providing as much as a €10 that law firms and individuals within be – but really values me – for being return, and some initiatives being completely those firms, as well as other organisations, me; an organisation, a role or workplace free of cost but of significant benefit. So, are making a difference. The fact that that embraces my vulnerabilities and while it’s the right thing for organisations to wellbeing is now more frequently seen on idiosyncrasies and openly supports me – do, it also makes good business sense. the agenda of management committees and not in spite of those, but because of them. Fewer talented lawyers leave organ- departmental meetings is a welcome change. I look on my legal career with pride, and isations that have an embedded culture of The more the conversations are normalised, I know that I wouldn’t be me without it. wellbeing. Individuals are far more likely to the greater the chance that people in need Having refocused my work, I am now in the feel fulfilled in their roles and, therefore, will come forward asking for help. very privileged position to stand alongside encourage and mentor others in their teams. many lawyers, law firms, and organisations, Costs of recruitment can be reduced and Diamonds are forever supporting them through their own profitability and sustainability (including The power to change the narrative around exploration of what wellbeing means, and formal sick-leave and productivity) are mental health and wellbeing for lawyers is I continue to learn from those around shown to be stronger in those businesses within each one of us. We, both acting alone me about how we can best ensure that it where people feel they belong and can be and in collaboration with others, can shine the remains firmly on the agenda for all themselves. brightest of lights on the topic. We can share lawyers. 44 ANALYSIS News in depth December 2020 Law Society Gazette gazette.ie SMELLS LIKE TEAM SPIRIT General counsel must establish a legal team’s reputation, as well as its influence, this year’s online In-House and Public Sector Conference heard. Mary Hallissey reports

MARY HALLISSEY IS A JOURNALIST WITH THE LAW SOCIETY GAZETTE

his year’s In-House and to team performance. Instead, strengthened and good team- Public Sector Conference, research shows that teaming suc- building, will be more difficult in on 5 November, focused on ceeds when three conditions are the post-virus world. Therefore, teamworkT and teambuilding – and met: teamwork should be supported the role of the in-house legal func- • Equal contributions from all with easy online coordination tion in facilitating this. members. Although not every and communication, such as an Speaking online, Amanda team member needs to contrib- intranet or chatrooms, Shantz said. Shantz (MBA director, TCD) said ute to each and every meeting, Clear lines of communication are that great teamwork leads to great this may mean that extroverts incredibly important in our ‘new results. need to stop talking, while normal’, and mutual understand- In-house lawyers need to estab- introverts should be encour- ing is more likely in a team that is lish their team’s internal reputation aged to contribute to group having fun. as well as its influence outside of discussions. Make sure virtual culture mir- the immediate legal department, • ‘Empathetic perspective-tak- rors real-life culture, and make she pointed out. The nature of ing’, or actively trying to step webchat platforms easy to use, teamwork is dramatically changing into the shoes of another. This without too many rules, she in today’s organisations – teams means thinking through the advised. Communicate the pur- HAVING A are now far more fluid, with more other person’s goals, motives, pose of the online forum and list flexible configurations, and with and needs, and responding in the reasons to encourage interac- FRIEND AT multiple people on multiple teams a way that ensures the other tion. working across the business. person feels capable of meeting “Collect good-news stories and WORK IS ONE OF their goals and needs. broadcast them to the rest of the THE GREATEST ’Team’ can be a verb • ‘Psychological safety’. This is team, and during webinars, require Shantz described ‘teaming’ as a a key predictor of good team- people to turn their cameras on,” PREDICTORS OF means to gather experts from dif- work, and means being com- she said, describing blank screens ferent divisions into temporary fortable making yourself vul- as a ‘nasty habit’ that destroys the INTENTION TO groups to tackle current problems nerable in front of the people communication environment. REMAIN IN THE and identify emerging opportuni- with whom you work. ties. Teaming with talent ORGANISATION. ‘Teaming’ should be used when These conditions lead to high- Internal legal departments have the situation is complex and uncer- quality relationships. And that’s historically had a ‘stewardship’ GIVE YOUR tain and requires rapid change and important, because having a friend role of protecting the business EMPLOYEES movement. The quality of col- at work is one of the greatest pre- from risk, but are now being asked laboration will make or break the dictors of intention to remain in to operate differently and to cre- OPPORTUNITIES success of a project, and different the organisation, Shantz pointed atively contribute to the business, teams must be able to interact well out: if you want people to stay, with a customer-centric mind- TO CONNECT with each other, she continued. give your employees opportuni- set. This stewardship role has led WITH OTHER Who makes up the team – in ties to connect with other people. some legal internal functions to terms of age, personality, or gender Informal interaction, which be viewed as holding back energy PEOPLE – doesn’t make a lot of difference leads to relationships being and innovation, because of law- gazette.ie Law Society Gazette December 2020 News in depth ANALYSIS 45 PIC: ALAMY 46 ANALYSIS News in depth December 2020 Law Society Gazette gazette.ie gazette.ie Law Society Gazette December 2020 News in depth ANALYSIS 47 yers’ adherence to regulation and companies to think about what cult to distinguish between legal proper procedures. culture they want to foster, that advice and legal assistance, which To offset this, a legal represen- span between creativity and psy- is usually not protected. tative should aim to be at business chological safety, and appropri- Simply introducing a lawyer initiative meetings, so that legally ate consequences,” she said. It’s into an email chain will not ren- correct decisions can made with- important to strike a balance in der that correspondence privi- out time being wasted. If ‘legal’ terms of learning from failure, leged, he warned. shuts down an initiative that is without cover-ups, since legal Laura McGovern (Competi- already up and running, it leads to teams deal with failure all the tion and Consumer Protection time wasted, energy depleted, and time, Commission) said that, from mood shifting, Shantz said. That’s a regulator’s perspective, the why it’s important for legal to be Privileged position CCPC can conduct searches of present at meetings, often right William Fry partner Derek business premises and has broad from the start. She described this Hegarty addressed the confer- powers to compel the provi- approach as ‘horseback law’ – ride ence with a guide to legal pro- sion of documents. Privileged up and make a quick assessment of fessional privilege for in-house and non-privileged materials major decisions from the outset. counsel. are often intermingled, but tech That said, a person who always The courts have established solutions allow the quarantin- has the ‘right’ answer will shut that privilege provides a limited ing of privileged material while down idea-generation – humility exception to the general obli- investigators probe non-conten- should be combined with curiosity gation to disclose all relevant tious documents. to get the most out of people. This material to the other parties to “At the CCPC we will not doesn’t mean that you need to proceedings. Legal-advice privi- accept sweeping or unsupported agree with everything: “if you dis- lege only applies to confidential assertions that a large volume of agree with a proposition, say ‘walk lawyer/client communications documents is protected by legal me through the steps of how you for the purpose of giving or privilege,” she said, while Derek THERE IS A got to that conclusion’, rather than receiving legal advice. A claim Hegarty advised: “Bear in mind dismissing it out of hand,” Shantz of legal-advice privilege over the relationship.” MISCONCEPTION suggested. records of other communications Hegarty said that organisa- will generally fail, and disclosure tions should distinguish the right IN SOME The bodyguard will have to be made. to refuse a request, from whether ORGANISATIONS Nicholas Donnelly, head of the Where legal advice is shared that right should actually be exer- legal unit at the Department of extensively, this can render the cised. THAT, ONCE A Justice, said that he sees the legal confidentiality aspect less clear, Hugh O’Reilly, legal counsel team’s role as that of ‘dynamic so caution should be exercised as to An Post, said it is important DOCUMENT HAS bodyguard’, asking questions that to how correspondence is han- to mark legal advice, clearly and BEEN SENT FROM lead to solutions rather than to dled, he said. “This can present visibly, as privileged and confi- further problems. particular challenges for in-house dential. “I put the legal advice as OR TO A LEGAL He added that the legal remit counsel, particularly those work- an attachment, rather than as part is a limited resource, and it is ing in larger institutions, as the of an email chain,” he elaborated. ADVISOR, THEN important to manage the expecta- advice they provide can be circu- Seminar chair Anna Marie IT IS PROTECTED tion that legal should be involved lated to a large number of recipi- Curry of Bord na Móna con- in every meeting – rather, legal ents, which could form the basis curred that forwarding emails to FROM should step in and out as required. of a challenge by adversaries.” an entire team could be danger- “If you are there for every meet- In-house counsel should con- ous in terms of confidentiality. DISCLOSURE. ing, there is a tendency to rely on sistently reinforce the message However, Derek Hegarty SIMPLY the lawyer to manage things. Very that the circulation of privileged pointed out that modern busi- often, you’re doing a service by not material must be minimised, and ness practice involves trainees INTRODUCING being there, but by standing back.” only sent to those with a reason- and legal secretaries, all involved Méabh Gallagher, director of able requirement for it, Hegarty in a chain of communication. A LAWYER corporate governance and legal advised. Common law also recognises INTO AN EMAIL counsel at Aer Lingus, said the He said that there is a miscon- that lawyers cannot conduct all airline had a ‘just culture’, in that ception in some organisations of their business in person, and CHAIN WILL NOT aviation safety is about the balance that, once a document has been this can permit the seal of privi- between impunity and a blame sent from or to a legal advisor, lege to apply in circumstances RENDER THAT culture, to enhance safety and pre- then it is protected from disclo- where legal business is conducted CORRESPOND- vent accidents. sure. “That is not the case,” he through intermediaries and sub- “It’s a really fascinating area, for said and, further, it can be diffi- ordinates. ENCE PRIVILEGED 48 ANALYSIS News in depth December 2020 Law Society Gazette gazette.ie

COVID’S TAXING TIMES

The recent budget continued unprecedented levels of intervention and financial support for affected businesses and workers in the wake of COVID-19, say Daryl Hanberry and Bridget Doherty

DARYL HANBERRY IS A TAX PARTNER AND BRIDGET DOHERTY IS TAX MANAGER AT DELOITTE

udget 2021, followed by Act 2020 to include proprietary ises located wholly within a more detailed measures directors within the EWSS from geographical region for which in the Finance Bill on 1 September 2020. COVID restrictions are in oper- B22 October, was framed on the Warehousing of unpaid taxes ation. Generally, this refers to assumption that there would be arising from COVID-19 – in the restrictions at Levels 3, 4 or 5 of no bilateral trade deal between July Jobs Stimulus Package, the the Government’s Plan for Liv- the EU and Britain, post-Brexit, Government announced that ing with COVID. and that there would be no it would defer unpaid VAT and The support for those qualify- COVID-19 vaccine in Ireland PAYE debts arising from COVID ing is a maximum weekly pay- next year. for a period of 12 months after ment of €5,000 for each week In his budget-day speech, the business reopens; therefore, that their business is affected by Minister Donohoe said the Gov- no interest will be charged dur- the COVID restrictions. ernment was able to respond ing this time. In addition, a lower Protective measures for those on KEENLY PLACED “swiftly and assertively” to interest rate of 3% per annum the minimum wage – there were the economic uncertainty of will apply to the repayment of no changes to income-tax cred- TAXATION COVID “because of the deci- the warehoused debts after that its or bands, but the minister did sions of recent budgets”. date. announce that the 2% USC rate MEASURES That said, there is no doubt The Finance Bill provides threshold is to be increased from CAN SERVE that keenly placed taxation that these warehousing provi- €8,472 to €8,675. The weekly measures can serve as a positive sions will apply to excess Tem- threshold for the higher rate of AS A POSITIVE mechanism, for domestic and porary Wage Subsidy Scheme employer’s PRSI of 11.05% also foreign-direct investors alike, Payments (TWSS) received increases from €394 to €398. MECHANISM, in facing the wide-ranging eco- by an employer, which must These changes are to ensure FOR DOMESTIC nomic variables unleashed in Ire- be refunded to Revenue. The that those on the minimum wage land in 2020. inclusion of the excess TWSS are not adversely affected, from AND FOREIGN- payments in the tax warehous- a tax perspective, and that there Key measures ing arrangements will provide a is no incentive to reduce working DIRECT Some of the measures affecting measure of relief for employers hours for a full-time minimum- INVESTORS individuals and employees in in these difficult times. wage worker. Budget 2021 and the Finance Bill It is important that taxpayers Remote working supports – the ALIKE, IN include the following: continue to file returns for all minister announced that the Consideration shown to propri- taxes and maintain current tax existing regime whereby work- FACING THE etary directors who actively work payments, in order to avail of the ers may claim a tax deduc- WIDE-RANGING in affected businesses – the blanket reduced interest rates. tion for utility expenses (light/ exclusion of proprietary direc- COVID Restrictions Support heat) would now be extended to ECONOMIC tors from the Employment Wage Scheme (CRSS) – the scheme include the cost of broadband. Subsidy Scheme (EWSS) had is available to affected self- This will have minimal impact VARIABLES been widely criticised by busi- employed individuals (sole trad- for employees. He also high- UNLEASHED IN ness owners. The Finance Bill ers or partners in a partnership) lighted the tax-free allowance of amends the Emergency Measures and companies that carry on €3.20 per day, which may be paid IRELAND IN 2020 in the Public Interest (COVID-19) a trade from a business prem- tax-free by employers to employ- gazette.ie Law Society Gazette December 2020 News in depth ANALYSIS 49 PIC: ALAMY

ees who are working from home. and immigration requirements. two years to two-and-a-half years. The area of remote working Housing: stamp-duty refund – the These extensions will serve THE EXISTING becomes more complex when one stamp-duty refund scheme allows as a welcome injection of cash- REGIME WOULD considers that many employees those acquiring land for the pur- flow and time for those striving are currently working in over- poses of residential development to meet Ireland’s housing market NOW BE seas jurisdictions for their Irish to claim a refund of 5.5% of the needs. employers. 7.5% stamp duty paid on pur- EXTENDED TO If this arrangement continues chase, giving an effective rate of Missed opportunities INCLUDE THE COST for a significant period of time or 2%. Previously, development of Capital Gains Tax (CGT) – it is becomes a permanent arrange- the land must have been com- notable that no steps were taken OF BROADBAND. ment, this will lead to adminis- menced by 31 December 2021. to reduce the CGT rate to make trative complications in terms of This has now been extended to investing in a business in Ireland THIS WILL HAVE corporate tax permanent estab- 31 December 2022, while the more attractive. At 33%, Ireland MINIMAL IMPACT lishment issues, payroll and social time period allowed to complete has one of the highest rates of security withholding obligations, the build has now extended from CGT among developed econo- FOR EMPLOYEES BOOK NOW FOR SPRING 2021 DIPLOMA CENTRE

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Certificate in Commercial Contracts 6 March 2021 €1,650

CONTACT DETAILS e: [email protected] t: 01 672 4802 w: www.lawsociety.ie/diplomacentre All lectures are webcast and available to view on playback, allowing participants to catch up on coursework at a time suitable to their own needs. Diploma Centre reserves the right to change the courses that may be offered and course prices may be subject to change. 12_20 gazette.ie Law Society Gazette December 2020 News in depth ANALYSIS 51

mies. While some minor amend- ments to Entrepreneur Relief were announced, the €1-mil- lion lifetime limit has not been adjusted. KEEP – unfortunately, the Finance Bill did not make any amendment to the Key Employee Engagement Programme (KEEP) to encourage a wider uptake of the scheme, or make any broader changes to the taxation of share BILL schemes for domestic and foreign multinational corporations who do not fall within the criteria for KEEP. AS OUR SARP – the Special Assignee Finance Bill: ‘Back to work, you!’ MARGINAL RATE BOOK Relief Programme is a valuable relief that encourages skilled indi- months. As a result of remote Irish employees still have one of REMAINS AT 52%, NOW FOR viduals to relocate to Ireland by working arrangements, indi- the highest personal tax burdens SPRING providing an income-tax exemp- viduals may now find it difficult in the EU. IRISH EMPLOYEES 2021 tion for earnings in excess of to avail of some of the technical STILL HAVE ONE €75,000 up to a cap of €1 million. conditions of the relief, and it is Economic landscape It was disappointing that uncertain whether any relaxation Budget 2021 comprised a total OF THE HIGHEST DIPLOMA CENTRE the Finance Bill did not include of these conditions will apply. package of over €17.75 billion, any measures in relation to the Marginal rate of tax – tax give- and saw €270 million specifically PERSONAL TAX Leaders in legal education with professional focus and practical insight various employment-related aways were never likely to fea- allocated to taxation measures, BURDENS IN Flexible CPD recognised courses to suit a busy schedule COVID concessions that have ture in Budget 2021 but, as our most of which went on VAT-rate been introduced over the last few marginal rate remains at 52%, cuts for the hospitality sector. THE EU COURSE NAME START DATE PRICE

Diploma in Commercial Litigation 13 January 2021 €2,600

Diploma in Aviation Leasing and Finance 28 January 2021 €3,000

Certificate in Strategic Leadership for the In-House Lawyer 29 January 2021 €1,650

Certificate in Company Secretarial Law & Practice 2 February 2021 €1,650

Diploma in Employment Law 12 February 2021 €2,600

Certificate in Data Protection Practice 17 February 2021 €1,650

Diploma in Healthcare Law 17 February 2021 €2,600

Certificate in Charity Law & Trusteeship 26 February 2021 €1,650

Certificate in Commercial Contracts 6 March 2021 €1,650

CONTACT DETAILS e: [email protected] t: 01 672 4802 w: www.lawsociety.ie/diplomacentre All lectures are webcast and available to view on playback, allowing participants to catch up on coursework at a time suitable to their own needs. Diploma Centre reserves the right to change the courses that may be offered and course prices may be subject to change. 12_20

M&K_LSG/LD 91X123 AW.indd 1 24/02/2011 16:40 52 ANALYSIS News in depth December 2020 Law Society Gazette gazette.ie

PERRIGO’S PAUSE The High Court has refused Perrigo Pharma’s application for judicial relief challenging the Revenue’s notice of amended assessment of corporation tax liability. Brian Duffy and Robert Kearns press rewind

BRIAN DUFFY AND ROBERT KEARNS PRACTISE IN TAX AT WILLIAM FRY

n 4 November 2020, establish that representations the operations of the certificate the High Court were made to it by Revenue that holder were trading in nature. refused an application gave rise to the expectation that Perrigo argued that part of its Ofor judicial review relief in Per- outright disposals of IP would be trading activities included dis- rigo Pharma International DAC regarded as trading. posals of IP, and that receipt of v John McNamara, the Revenue the certificate was confirmation Commissioners, the Minister for Legitimate expectation that disposals of IP were trading Finance, Ireland and the Attorney In Glencar Exploration plc v Mayo in nature and covered by the spe- General ([2020] IEHC 552). (See County Council (No 2) ([2001] cial tax regime. Perrigo argued the November Gazette, p42.) IESC 64; [2002] 1 IR 84), the that, in the life-sciences industry, Perrigo had challenged the Supreme Court confirmed that the term ‘exploitation of IP’ was validity of a notice of amended there are three matters that must commonly understood to include assessment issued by the Rev- be established to mount a claim disposals of IP. enue Commissioners in Novem- based on legitimate expectation: The court did not accept this ber 2018. The transaction that 1) The public authority must line of argument. It was the gave rise to the controversy have made a statement or court’s view that the certificate between the parties involved the adopted a position amounting made clear that the question of 2013 sale to Biogen of Perrigo’s to a promise or representation, whether the certificate holder THE COURT WAS 50% interest in intellectual prop- 2) The representation must be was trading was an issue to be UNABLE TO MAKE erty (Tysabri IP). Following a tax addressed or conveyed either determined after the operations audit, Revenue concluded that directly or indirectly to an in question had taken place. ANY FINDING the disposal should have been identifiable person or group of Therefore, the issue of the cer- treated as a capital disposal and persons, and tificate by the minister could not THAT REVENUE have been subject to tax at 33%, 3) The representation must cre- be taken as a representation that MUST HAVE rather than the 12.5% rate appli- ate an expectation “reasonably Revenue accepted that disposals cable to trading transactions. entertained” by the person or of IP formed part of Perrigo’s KNOWN THAT Perrigo instituted the pro- group that the public author- trading activities, and therefore ceedings on the grounds that the ity will abide by the represen- the certificate could not ground a IP DISPOSALS assessment was (a) a breach of tation. claim for legitimate expectation. FORMED PART OF Perrigo’s legitimate expectations; (b) so unfair as to amount to an The Shannon Certificate Tax Briefing 57 PERRIGO’S TRADE abuse of power; and (c) an unjust The first category of representa- The second category of repre- attack on its constitutionally pro- tion related to the Shannon Cer- sentation was based on a Rev- AND, AS SUCH, tected property rights. tificate issued by the Minister for enue tax briefing (TB 57). When THIS GROUND The case, based on legitimate Finance on 20 February 2002, the Shannon and IFSC special expectation, has a number of which enabled the certificate tax regimes were coming to an COULD NOT aspects to it. It is based on four holder to avail of a special 10% end, tax practitioners and Shan- separate categories of repre- rate of tax for approved trading non and IFSC-certified compa- SUSTAIN A CLAIM sentation alleged to have been activities that were carried out in nies sought clarity and assurances FOR LEGITIMATE made by Revenue over a period the Shannon Airport area. Under from the Revenue in respect of of more than ten years. The bur- the tax acts, the minister could the rate at which profits would EXPECTATION den of proof was on Perrigo to not grant such a certificate unless be taxed in the future. Revenue gazette.ie Law Society Gazette December 2020 News in depth ANALYSIS 53 PIC: SHUTTERSTOCK

Perrigo’s paws published TB 57 in October return and the liability to tax”, was loss-making, the Revenue concluded that, in circumstances 2004 to reduce the number of where the Revenue, by not subse- did not carry out a review of the where there was no basis for Per- queries that Revenue would have quently amending the assessment, treatment of IP until September rigo to have a legitimate expecta- to manage about the issue. was declaring itself satisfied with 2016. Also, while not determi- tion that an amended assessment Perrigo placed emphasis on the contents of the tax return. native of the ‘trading’ issue, the would not be issued, it could not two sentences from TB 57 in The court did not accept this Tysabri IP was held as an asset for be suggested that the Revenue which the Revenue stated that argument, noting that every sale under IFRS 5 – the account- (by issuing an amended assess- trading activities already meeting taxpayer faces the prospect of a ing standard that applied to non- ment) acted so unfairly that it the requirements of the IFSC tax return being reopened and current assets held for sale. amounted to an abuse of process. and Shannon regimes “will qual- examined by an inspector within Critically, the court was unable For the same reasons, the argu- ify for the 12.5% tax rate”. the relevant four-year period. to make any finding that Revenue ment based on abuse of Perrigo’s The court concluded that, on Therefore, it could not be sug- must have known that IP dispos- constitutional rights also failed. a fair reading of TB 57, it could gested that the non-objection als formed part of Perrigo’s trade Perrigo has a right to appeal not be suggested that the Rev- by Revenue in the past could be and, as such, this ground could the decision to the Court of enue was representing that any said to give rise to an implied not sustain a claim for legitimate Appeal. With €1.64 billion at activity carried on by the holder representation that the ongoing expectation. stake, it may choose to exercise of a certificate would be treated transactions would not be subject The court held that, on the this right. The judicial review as trading and, as such, this to the possibility of an adverse basis that the three aspects of Per- proceedings were concerned ground could not sustain a claim assessment by the Revenue. rigo’s case did not amount to a with the process of issuing the for legitimate expectation. In addition, Perrigo made representation that could ground amended assessment and, as the case that, between 1997 and a claim for legitimate expectation, such, the High Court was not the Dealings between the parties 2005, it accounted for corpora- it was not possible to come to the forum for Perrigo to make the The third category of repre- tion tax at the 10% rate on its conclusion that the combination case that disposals of IP formed sentation was alleged to arise trading activity, which included of the certificate, TB 57, and the part of its trade. as a consequence of the course disposals of IP. Perrigo argued course of dealings between the Perrigo has appealed the of dealings between the par- that the financial statements sub- parties would give rise to a differ- amended assessment to the Tax ties. Until January 2013 and the mitted with its tax returns clearly ent conclusion. Appeals Commission (TAC) introduction of the self-assess- showed that IP was treated as and the question whether the ment regime, the Inspector of trading stock. The other aspects disposal of the Tysabri IP con- Taxes issued a taxpayer with a Revenue accepted that corpo- Regarding Perrigo’s argument stituted a trading or a capital notice of assessment. ration-tax returns were submit- that the assessment was so unfair transaction is a matter that will In this context, Perrigo char- ted, along with financial state- as to amount to an abuse of be resolved in due course before acterised the inspector’s role as ments and tax computations over power or an abuse of Perrigo’s the TAC. The outcome of that is being “interposed between the the years, but, as the company constitutional rights, the court far from certain. 54 ANALYSIS News in depth December 2020 Law Society Gazette gazette.ie REFORM SCHOOL The LSRA has issued two new reports, on legal education and on the unification of two branches of the profession. Mary Hallissey reports

MARY HALLISSEY IS A JOURNALIST WITH THE LAW SOCIETY GAZETTE

he Legal Services Regula- required to practise as a solicitor or • Encourage diversity in legal tory Authority (LSRA) has barrister, and (b) the introduction education and training, and issued two new reports – of a statutory framework to estab- • Engage with key stakeholders theT first on setting standards for lish a new and independent Legal in legal education and training. PIC: SHUTTERSTOCK legal education; the second on the Practitioner Education and Train- potential unification of the solici- ing Committee. The committee On the report’s two central rec- tors’ and barristers’ professions would be statutorily required and ommendations, Ken Murphy – though it concludes that this empowered to: welcomes one, but questions the appears to be premature, for the • Set the competency framework other: “Externally approved com- time being at least. for legal practitioner education petency standards make sense. The reports were published on and training, Indeed, the Society’s Law School 19 November and have been sub- • Develop a common set of com- has previously requested Qual- mitted to the Minister for Justice. petencies and standards for ity and Qualifications Ireland The Law Society has welcomed admission to professional legal (QQI) to engage with it in such a the publication of both reports. training, process.” Director general Ken Murphy • Ensure that existing providers He found it a little disappoint- confirmed that their contents will of legal education and training ing, however, that the LSRA had be studied in detail. However, he adhere to the standards required not taken on board the Society’s THE LAW observed that an initial review of by the competency framework concerns about the proposed set- the recommendations in the two on an ongoing basis, ting up of a new entity, the Legal SOCIETY HAS reports was that “they contain no • Scrutinise and accredit new pro- Practitioner Education and Train- WELCOMED THE surprises”. viders of legal education and ing Committee. “The role of this training, based on set criteria proposed new statutory body, in PUBLICATION OF Education reform established by the committee, the Society’s submission to the Setting Standards: Legal Practitio- • Monitor the quality of legal edu- LSRA, could easily be undertaken BOTH REPORTS ner Education and Training recom- cation and training, by QQI, now that the latter’s role AND WILL STUDY mends reforms to define the com- • Encourage innovation in the has been strengthened in legis- petence and standards required to provision of legal education and lation as recently as 2019,” he THEIR CONTENT practise as a solicitor or barrister. training, remarked. “The creation by legis-

It also recommends the establish- IN DETAIL. THE ment of a statutory framework SOCIETY’S INITIAL to accredit existing providers of legal practitioner education and REVIEW OF THE training, as well as allowing, for the first time, new providers to RECOMMEND- be accredited to provide profes- ATIONS IN THE sional training for solicitors and barristers. TWO REPORTS The report makes 12 important recommendations for the reform WAS THAT ‘THEY of legal education, with two in CONTAIN NO particular being central: (a) the development of clear definition

1 0

of the competence and standards SURPRISES’ gazette.ie Law Society Gazette December 2020 News in depth ANALYSIS 55 PIC: SHUTTERSTOCK

lation of a new quango to perform authority to continue to examine as expanding the scope of existing alter the rules of the legal profes- this role, it still seems to us, would areas of legal-services provision models,” it continues. sion by lifting existing restrictions be disproportionate, unnecessary where structural improvements The report says that: “Relax- on barristers, allowing them to and costly.” and efficiencies are warranted. ing the rules on barristers forming operate in new business structures This work is fundamental to the partnerships with other barristers and further facilitating movement Unification ‘premature’ fulfilment of its statutory objec- and/or solicitors will offer more between the profession of barris- In the second report, Greater than tives under the act.” flexibility to legal practitioners, ter and solicitor.” the Sum of Its Parts? Consideration The matter will be looked at allowing them to work together In addition, section 212 of the of Unification of the Solicitors’ Pro- again within five years, when the and provide different and more act (commenced on 7 October fession and Barristers’ Profession, the LSRA anticipates that the land- efficient and competitively priced 2019) provides that a barrister LSRA concludes that, at this stage scape for legal services’ provision legal services to consumers. whose name is entered on the in its regulatory timeline, it would will have evolved sufficiently in “Legal partnerships, by allow- Roll of Practising Barristers may be premature to recommend order for the question to be recon- ing barristers and solicitors to take up employment, and as part that the two branches be unified: sidered. work together within one busi- of that employment provide legal “Having considered the views of Ken Murphy welcomed the ness entity, mean that consumers services for his or her employer, respondents to this consultation LSRA’s key recommendation can visit a solicitor and barrister including by appearing on behalf and having analysed arrange- ‘that the solicitors’ profession and operating in the same premises as of that employer in a court, tribu- ments in other jurisdictions, there barristers’ profession should not a ‘one-stop shop’ for the provision nal or forum for arbitration. is a lack of compelling evidence to be unified at this time’. While of legal services.” support a recommendation that it is “no surprise”, he remarked, The authority has also under- Profession of conveyancer the profession be unified.” “the report’s conclusion is well- taken to give further consider- The report also notes that sec- The LSRA observes that, reasoned, wise and utterly persua- ation to the introduction of multi- tion 34(1)(c) of the act requires regardless of the exact form it sive”. disciplinary practices (MDPs) the authority to report on the may take, the introduction of – another business model contem- creation of a new profession of a formally unified legal profes- Changing landscape plated by the Legal Services Regula- conveyancer. sion in Ireland could reasonably Pending, proposed, and potential tion Act. The report notes that the It says the introduction of a be expected to have far-reaching reforms will change the landscape introduction of legal partnerships new profession of conveyancer consequences – not only for legal for legal-service-delivery in the should assist it in further consider- in Ireland could have a signifi- practitioners themselves, but also years ahead and will have an impact ing the introduction of MDPs. cant impact on the solicitors’ for consumers of legal services, on the regulatory framework for profession, as conveyancing work the operation of the courts, and barristers and solicitors, the LSRA New business structures is among what are referred to the wider administration of jus- says. “The impact of these reforms The report adds that the act con- as ‘reserved legal services’ that tice: “This is not to say that there would be to introduce new meth- tains a number of provisions that can only be provided by sol- is not an ongoing case for the ods of legal-service delivery, as well “have the potential to substantially icitors. 56 ANALYSIS Eurlegal December 2020 Law Society Gazette gazette.ie

THE DAY AFTER TOMORROW The publication of new Irish legislation, as well as a seminal Supreme Court decision, are highly relevant to the EU and international policy framework regarding the governance of climate action, says Katrina Donnelly

KATRINA DONNELLY IS A SOLICITOR WITH ARTHUR COX AND IS A MEMBER OF THE LAW SOCIETY’S EU AND INTERNATIONAL AFFAIRS COMMITTEE

ackling climate change At EU level, the 2019 Commu- ing Regulation, the Land Use Regu- requires radical transfor- nication on the European Green Deal lation, the Renewables Directive, the mation across all sectors. outlined an all-sector approach to Energy Efficiency Directives, and TThere is broad agreement about reducing emissions and decou- the Energy Taxation Directive). what needs to happen – decarbo- pling economic growth from In terms of climate governance, nise power and transport, increase resource use in order to reach not only will the Energy Union energy efficiency of buildings, zero net emissions of greenhouse Governance Regulation be revised increase sustainability in manufac- gases in 2050. The commission to factor the new target into mem- turing and industry. But achieving was to present an impact-assessed ber states’ current climate policy- this requires long-term decision- plan to increase the existing 2030 planning and reporting obliga- making around infrastructural target of reducing emissions by tions, but a new regulation is also development, effective regulatory 40% to at least 50% (as against in train, colloquially referred to as and market design, well-targeted 1990 levels). the European Climate Law. It seeks THE COURT taxation and allocation of public Having carried out that assess- to establish a “framework for the funds, and regulation conducive ment, the commission published irreversible and gradual reduction CONSIDERED to sustainable private finance. a communication on Stepping up of greenhouse gas emissions and Climate governance provides 2030 Europe’s Climate Ambition enhancement of removals by nat- THAT THE a framework for setting the tar- in September 2020. This was a ural or other sinks in the union”. NATIONAL gets to be met, requiring the for- keynote part of the state-of-the- It would bind EU institutions and mulation of policies and plans to union address, and it carried a member states to take necessary MITIGATION elaborate how it is proposed to stark message: the current policy actions to achieve carbon neutral- meet those targets, and monitor- and legal framework would not ity by 2050, and would require the PLAN DID NOT ing progress. Long-term policy be enough to enable the EU to commission to monitor progress JUST FALL SHORT, needs to be spelled out with a level reach its 2050 goals and to meet and take appropriate enforce- of certainty and specificity that is its commitments under the Paris ment action where targets are not IT FELL ‘WELL adequate to enable the necessary Agreement. being met. SHORT’ OF THE projects to be planned, financed Accordingly, the commission In Ireland, the Programme for and delivered. proposed to increase the 2030 Government and the 2019 Cli- SPECIFICITY emissions reduction target to at mate Action Plan set a target of Ambitious direction least 55% and the parliament is reaching a carbon-neutral econ- REQUIRED BY Climate governance at both EU seeking to raise this further. This omy by 2050. The Programme and domestic level is undergo- will also result in new EU targets for Government elaborates strat- STATUTE ing change, as might be expected, for renewable energy and energy egies aimed at reducing emissions given that there is now a dramati- efficiency. A revision of key EU by an average of 7% each year News from the EU and International Affairs Committee. Edited by TP cally increased level of ambition legislation is underway (including from 2021 to 2030, which equates Kennedy, Director of Education in tackling climate change. the ETS Directive, the Effort Shar- to a reduction of 51% over the gazette.ie Law Society Gazette December 2020 Eurlegal ANALYSIS 57 PIC: SHUTTERSTOCK

Whether we weather whither the weather decade. It commits to meeting at The bill’s key provision would bon budget’ is the total amount This would be a roadmap least 70% of electricity demand by oblige the State to “pursue the of emissions permitted during of actions, including sector- renewable power by 2030. Ireland transition to a climate resilient the budget period. A first bud- specific actions, and would has also delivered its National and climate-neutral economy by get period would commence at take into account the carbon Energy and Climate Plans for the end of 2050”. ‘Climate neu- the start of 2021 for a period of budget programme. It would 2021-2030 in accordance with the tral economy’ means “a sustain- five years. At any given time, address policy and mea- EU Governance Regulation. able economy, where greenhouse there would be visibility of the sures for the first five years; gas emissions are balanced or current budget, plus budgets then, for the next five years, Governance framework exceeded by the removal of green- for two subsequent periods – policies and, if feasible, mea- The focus of this article is on two house gases”. and that 15-year perspective is sures; and then, for the final significant developments in Ire- This obligation is called the called a ‘carbon-budget pro- five years, potential policies. land that are highly relevant to ‘National 2050 Climate Objective’ gramme’. After a carbon bud- b) Long-term climate action strat- the EU and international policy and would replace the 2015 act’s get is approved, a ‘decarbonisa- egies to specify the manner and legal framework: first, the ‘National Transition Objective’. tion target range’ would be set, in which it is proposed to publication of the Climate Action The bill sets out a detailed which is the “target range of meet the national 2050 cli- and Low Carbon Development framework for climate gover- greenhouse gas emissions that mate objective. These may (Amendment) Bill and, second, nance to achieve the national 2050 are permitted in different sec- include projected emissions the Supreme Court’s decision in climate objective. This is sum- tors of the economy within the reductions and the enhance- Friends of the Irish Environment marised below: limits specified in the carbon ment of carbon sinks for a CLG v Government of Ireland, • Carbon budgets – five-year car- budget”. minimum of 30 years; pro- Ireland and the Attorney General bon budgets would be pro- • Strategic and planning frame- jected emissions reductions ([2020] IESC 49). posed by the Climate Change work – the bill would require and enhancement of car- The Programme for Govern- Advisory Council (CCAC), the minister (or in the case of bon removals by sector; and ment committed to introducing finalised by the minister, and the sectoral adaptation plan, an assessment of potential a climate action bill within the approved by the Government. each of the relevant ministers) opportunities in relevant sec- first 100 days of Government. (In the 2015 act, the minister is to make the following, and sub- tors. These would have to be The Climate Action and Low Car- defined as the Minister for the mit them to Government for made not less than once every bon Development (Amendment) Bill Environment, Community and approval: ten years (or five years if the 2020, published on 7 October, Local Government. The bill is a) Annual revisions of the Climate minister thought it appro- would make significant amend- brought forward by the Minis- Action Plan, to enable the priate). They would have ments to the Climate Action and ter for Environment, Climate State to pursue the national regard to article 15 of the EU Low Carbon Development Act 2015. and Communications.) A ‘car- 2050 climate objective. Governance Regulation, which 58 ANALYSIS Eurlegal December 2020 Law Society Gazette gazette.ie

requires member states to authorities would be required to ered this to be significant – there submit long-term strategies make five-year plans to specify was a clear statutory policy of with 30-year perspectives to mitigation and adaptation mea- transparency and public partici- the commission. sures. Relevant bodies, in the pation, such that the public was c) National adaptation frame- performance of their functions, entitled to know how the Govern- works that focus on reducing would have to take into account ment intended to meet the NTO. vulnerability of the State to the plans/strategies, the National A National Mitigation Plan the negative effects of cli- 2050 Climate Objective, and the was published in July 2017. There mate change and on availing objective of mitigating emissions were numerous responses during of any positive effects. and adapting to the effects of cli- the consultation period. The plan d) Sectoral adaptation plans to mate change. (‘Relevant bodies’ envisaged an increase in emissions specify the adaptation policy are prescribed bodies and public over an initial period while, at the measures that each minister, bodies, as defined in the Free- same time, committing to achiev- having regard to the national dom of Information Act – these are ing zero net carbon emissions by adaptation framework, pro- numerous entities.) A minister 2050. poses to enable adaptation to could direct a relevant body to the effects of climate change adopt measures for the purpose of Why quash the plan? in the sector(s) concerned. compliance with the framework, The court ordered the quashing of and could require relevant bodies the plan on the basis that it failed THE PURPOSE The last two of these are already to report on measures taken and to comply with its statutory man- OF REQUIRING provided for in the 2015 act. progress made. date and was therefore ultra vires However, the bill would provide the 2015 act. The key conclusion THE PLAN TO BE an expanded list of matters to And the Supreme Court? was that the 2015 act “requires a which the minister and Govern- In July 2020, in Friends of the Irish sufficient level of specificity in the SPECIFIC WAS ment must have regard in finalis- Environment, the Supreme Court measures identified in a compliant TO ALLOW ANY ing these documents (in the areas quashed the National Mitigation plan that are required to meet the of international and EU com- Plan, which had been made pursu- National Transitional Objective MEMBER OF mitments, Government policies, ant to the 2015 act. by 2050 so that a reasonable and climate justice, emissions data, What is the statutory back- interested person could make a THE PUBLIC TO science and technology, CCAC ground relevant to this case? The judgement, both as to whether the KNOW ENOUGH recommendations, and more). 2015 act required a ‘national miti- plan in question is realistic, and Compared with the 2015 act, gation plan’ to be made for the as to whether they agree with the ABOUT HOW THE the bill frames the CCAC’s advi- purpose of enabling the State to policy options for achieving the sory and reporting roles in line pursue and achieve the transition NTO which such a plan specifies. GOVERNMENT with the more detailed gover- to a low-carbon, climate-resilient The 2015 act as a whole involves INTENDED TO nance framework proposed. and environmentally sustainable both public participation in the In addition to the CCAC’s economy by the end of 2050 (the process leading to the adoption MEET THE NTO. reporting obligations, what other national transition objective, or of a plan, but also transparency as oversight would be provided? A NTO). to the formal Government policy, THIS WOULD new section on climate reporting Section 4 sets out the matters adopted in accordance with a stat- INFORM THE would require ministers to attend that should be specified in the utory regime, for achieving what is and report on progress before a mitigation plan. The overriding now the statutory policy of meet- VIEWS OF THE joint committee of the Oireach- requirement is that it must specify ing the NTO by 2050. A compli- tas, following which the commit- the manner in which it is proposed ant plan is not a five-year plan but, REASONABLE tee could make recommendations to achieve the NTO. It should rather, a plan covering the full AND INTERESTED to which the relevant minister specify the policy measures needed to period remaining to 2050. While would be required to respond. achieve the NTO, and measures the detail of what is intended to MEMBER OF THE The overriding obligation in are required to be specified by ref- happen in later years may under- respect of the National 2050 Cli- erence to various sectors. There standably be less complete, a com- PUBLIC AS TO mate Objective is on the State. must be a new plan at least every pliant plan must be sufficiently WHETHER THE Apart from Oireachtas oversight, fifth year (which the court con- specific as to policy over the whole what else does the bill say about sidered to mean that there should period to 2050 […] the plan falls POLICY COULD compliance with the framework? be a series of rolling plans, rather well short of the level of specificity Ministers, in the performance of than a series of five-year plans). required to provide that transpar- BE CONSIDERED their functions, would be required Section 4 also requires a pro- ency, and to comply with the pro- EFFECTIVE AND to have regard to the carbon bud- posed plan to be published, and visions of the 2015 act.” get and take account of the decar- submissions invited from inter- The court considered that APPROPRIATE bonisation target range. Local ested parties. The court consid- the plan did not just fall short, it gazette.ie Law Society Gazette December 2020 Eurlegal ANALYSIS 59 fell “well short” of the specificity That said, the court was keen required by statute. to acknowledge that there may How did the court gauge the well be cases, which are environ- level of specificity? The starting mental in nature, where consti- point was to consider the purpose tutional rights and obligations of the act as a whole, and the court are engaged. It stated that, while considered this to be public par- questions of general policy do not ticipation and transparency. The fall within the remit of the courts public-participation purpose was under the separation of powers, met by the requirement to consult. if an individual with standing to It was to the transparency purpose assert personal rights were to that the specificity mandated by establish that those rights had section 4 was directed. The pur- been breached in a particular way, pose of requiring the plan to be the substantive policy content to future challenges by corporate then the court would be bound to specific was to allow any interested of the plan could not be judi- NGOs in the environmental field vindicate such rights and uphold member of the public to know cially reviewed. The court, in respect of any future plan – the Constitution. Therefore, enough about how the Govern- however, noted that there was standing; and whether there was in an appropriate case, it might ment intended to meet the NTO legislation and “where the leg- an unenumerated/derived right to well be that constitutional rights so as to inform the views of the islation requires that a plan … a healthy environment. would play a role in environmen- reasonable and interested mem- does certain things, then the Did FIE have standing to tal proceedings. ber of the public as to whether the law requires that a plan com- mount a rights-based claim? No policy could be considered to be plies with those obligations – the rights on which FIE sought Forward momentum effective and appropriate. … The choices as to how the to rely were personal rights that The bill is a Government priority, The court then looked at the NTO might be achieved may FIE, as a corporate entity, did not with chief whip Jack Chambers plan itself. The court placed sig- well be policy choices, and real enjoy. (FIE sought to rely on the citing it as one of the bills in the nificant weight on the views of the questions might arise at to the Constitutional right to life, right current legislative programme CCAC, which had indicated that extent to which those choices to bodily integrity, and right to that will help to rebuild the econ- Ireland was off-course in terms might be justiciable. However, an environment consistent with omy and regenerate society. Com- of its commitments to addressing whether the plan does what it human dignity. It sought to rely pared with current legislation, climate change. The court char- says on the ‘statutory tin’ is a on articles 2 [right to life] and 8 and for the first time, it enshrines acterised some of the policies in matter of law and clearly justi- [private and family life] of the the State’s commitment to mov- the plan as “excessively vague or ciable.” convention.) The court discussed ing to carbon neutrality by 2050, aspirational” or requiring the car- • The challenge to the vires of the the leading authorities, com- and it provides a more developed rying out of further research. The plan did not amount to an imper- menting that Irish rules relating governance framework to support court found this unsatisfactory, missible collateral attack on the to standing are flexible, but not the very significant level of action adding that, even though measures 2015 act. FIE’s claim was sim- infinitely so. that is required. might have to be adjusted over ply an assertion that the legisla- Is there an unenumerated or The Supreme Court’s judg- time because of developments in tion required a particular level derived right to a healthy envi- ment will help to add momen- knowledge, data or technology, of specificity to be met in the ronment under the Irish Con- tum to the increasing sophistica- a best current estimate as to how formulation of the plan. It did stitution? The lower court had tion of climate policy in Ireland. the NTO was going to be achieved not suggest that there was any considered that there was a right Development of energy and cli- needed to be made now. Too much problem concerning consis- to an environment consistent mate policy is iterative and col- had been left to further study or tency of the act with the Con- with human dignity, as had the laborative, but requires enough investigation for the reasonable stitution. court in Friends of the Irish Envi- detail and specificity to enable and interested observer to know ronment v Fingal County Council long-term investment decisions how it was intended to achieve the Rights-based claim? ([2017] IEHC 695). However, to be made. Given that, in terms NTO. During the course of this litiga- the Supreme Court held that such of infrastructural development, a There was no dispute between tion, there were submissions that a right is impermissibly vague: decade is a short period of time, the parties that Friends of the Irish the plan failed to vindicate rights “It either does not bring matters and that the court stressed that Environment (FIE), an incorpo- under the Constitution and the beyond the right to life or the the plan should cover the entirety rated association, had standing to European Convention on Human right to bodily integrity, in which of the period to 2050, it already challenge the vires of the 2015 act. Rights. Because a basis to quash case there is no need for it. If it seems clear that a similar expecta- Two other preliminary issues are the plan had already been identi- does go beyond those rights, then tion would arise in respect of the worth noting: fied, it was not necessary to deal there is not a sufficient general various documents specified in • The question of whether the plan with these aspects of the case. definition (even one which might, the bill, given that they are to be met the requirements of section 4 of However, the court did consider in principle, be filled in by later made “for the purpose of enabling the 2015 act was justiciable. The that it should state its view on cases) about the sort of parame- the State to pursue the national Government contended that two issues that could be relevant ters within which it is to operate.” 2050 climate objective”. 60 BRIEFING Council report December 2020 Law Society Gazette gazette.ie

REPORT OF LAW SOCIETY COUNCIL MEETING 13 NOVEMBER 2020 The president extended a warm sion, a theme that he saw as being The associated cost savings, to emphasise that the initiative in welcome to the newly elected and closely allied to mindfulness and as well as the mitigation of both no way represented a substitute newly nominated Council mem- mental health. He described his control and data-security risks, for the introduction of a compre- bers, Tara Doyle, Martin Lawlor plans to honour all solicitors on were appreciated by the Coun- hensive civil legal-aid system in and Tony O’Sullivan. the Roll for 40 and more years, cil. The meeting also emphasised the State. to engage further with the solici- the need to ensure that members It was agreed that the president Taking office tors of the future, and to encour- of the profession were assisted in would participate in the launch of The outgoing president, Michele age bar associations to document becoming familiar with the online the pledge at the end of Novem- O’Boyle, paid tribute to the Law their histories with the assistance system. ber, together with the Minister Society committee members and of the Law Society Library. for Justice and the Bar Council. staff for their enormous work The president will also estab- Pro Bono Pledge and commitment to the Society, lish a new Practice Support Task The Pro Bono Pledge is a col- AGM report particularly during the past year. Force, populated by Council laborative initiative that aims to As required by the bye-laws, the Reflecting on her term in office, members, with the goal of assist- articulate the shared responsibil- Council adopted the following she considered that, while no ing solicitors in meeting the ity of lawyers to promote access motion, which had been approved one could have anticipated the increasing demands of practice. to justice and provide pro bono at the previous evening’s AGM: challenges presented by the pan- Senior vice-president Michelle legal assistance to those in need. “That the Law Society imple- demic, it had been her privilege to Ní Longáin and junior vice-pres- The pledge, which is coordinated ment the recommendations set undertake the role. ident Barry MacCarthy also took by the Public Interest Law Alli- out from pages 99-111 of the James Cahill was formally office and expressed their com- ance (a project of FLAC), enables International Bar Association appointed President of the Law mitment to the Council and their solicitors and firms to take a vol- (IBA) Report titled, Us Too? Bul- Society. He thanked the Council support for the president. untary pledge to engage in pro lying and Sexual Harassment in the for bestowing on him the great bono work. Legal Profession. That the Law honour of serving as the 150th Online PC renewal While the opportunities pre- Society commission a profession- president, and he paid tribute to The Council had a discussion on sented by the programme, in wide survey in similar terms to Michele O’Boyle for her leader- a proposal from the Regulation quantifying the extent of such that carried out by the IBA on ship during trying times. of Practice Committee that all work across the profession and in bullying and sexual harassment. Mr Cahill explained that his PC renewals would be brought creating referral networks among That this survey be commis- presidency would focus on nur- online, commencing with the solicitors, were welcomed by the sioned within three months of 12 turing friendship in the profes- 2021 PC renewal. Council, the meeting was careful November 2020.”

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MENTAL HEALTH AND CAPACITY TASK FORCE MEDICAL REPORTS IN APPLICATIONS TO REGISTER AN ENDURING POWER OF ATTORNEY – NEW HIGH COURT PRACTICE DIRECTION The President of the High Court of medical affidavits and medical attorney. This has effect from Richard Hammond SC, Chair, has issued a new Practice Direc- reports in support of applications Monday 16 November 2020 and Mental Health and Capacity tion HC 99 regarding the content to register an enduring power of is printed in full below. Task Force

PRACTICE DIRECTION: ENDURING POWERS OF ATTORNEY I, Mary Irvine, President of the ers of Attorney Act 1996, shall concluding whether the donor ii) The likely date of onset of High Court, hereby issue the henceforth include the following is or is becoming incapable of that illness/condition, following practice direction in information: managing his or her affairs, iii) The symptoms pertaining to accordance with s11(12) of the 1) The date, place, duration and 4) Whether in the opinion of the that illness/condition, Civil Law and Criminal Law (Mis- circumstances in which the registered medical practitioner, iv) The evidence relied upon in cellaneous Provisions) Act 2020. medical examination was car- the donor is or is becoming making their diagnosis, and This practice direction, which ried out, incapable of managing his or v) Whether the illness/condi- concerns the content of medi- 2) The nature and duration of any her affairs, tion is permanent or likely to cal affidavits/medical reports in prior relationship between the 5) Where the medical practitioner improve. relation to Enduring Powers of medical practitioner and the is of the opinion that the donor Attorney, will come into force on respondent, is or is becoming incapable of This practice direction will remain 16 November 2020. 3) The nature of the examina- managing his or her affairs, he/ in force until further notice. Any certificate, or medical tion carried out and details of she should state: report relied upon as a certificate, the test and/or capacity tools i) The nature of the respon- Mary Irvine, President of the High for the purposes of s9(4) the Pow- deployed for the purpose of dent’s illness/condition, Court, 23 October 2020

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

CONVEYANCING COMMITTEE IMPLIED EASEMENTS 1. The Conveyancing Committee neran & Anor v Corbett & Sons Ltd a) Is necessary to the reasonable (2) above, where an easement received a request from a solicitor & Anor ([2004] IEHC 389), where enjoyment of the part disposed arose by implication prior to the for guidance in relation to the fol- Laffoy J approved and adopted of, and 2009 act. Implied easements run lowing situation. A row of ten ter- paragraph 6.059 of Wylie on Irish b) Was reasonable for the par- with the land, originally by virtue raced houses in a city was built 50 Land Law (3rd edition), which said: ties, or would have been if of section 6 of the Conveyancing years ago. The houses front onto “As regards the rule that a man they had adverted to the mat- Act 1881 and, after 1 December a public road, but the drain serv- may not derogate from his grant, ter, to assume at the date the 2009, by virtue of section 71 of ing all ten houses was laid along the philosophy here is that, when disposition took effect as being the 2009 act, unless a contrary the rear of the houses to the last a man transfers his land to another included in it. intention was expressed in the house in the row, and then con- person, knowing that it is going to (3) This section does not other- deed. nects through its driveway to the be used for a particular purpose, wise affect: 8. Implied or deemed ease- public sewer, which is located in he may not do anything which is a) Easements arising by implica- ments are not capable of registra- the public road. The solicitor going to defeat that purpose and tion as easements of necessity tion under the 2009 act. If some- making the enquiry wanted to thereby frustrate the intention of or in order to give effect to the one was forced to seek a court know if it was necessary for his both parties when the transfer is common intention of the par- order to confirm an implied or client to seek a grant of a wayleave made. Usually application of this ties to the disposition, deemed easement, they may be from all the relevant neighbours principle creates property rights in b) The operation of the doctrine able to register the court order or to seek to register a wayleave favour of the grantee, which takes of non-derogation from grant.” confirming the easement if they through the PRA or apply to the the form of restrictions enforce- wished. Circuit Court for an order, and able against the grantor’s land.” 6. Since 1 December 2009, the 9. The committee is of the then seek to register the same. In the Palaceanne case, Ryan P Rule in Wheeldon v Burrows has opinion that it would be reason- 2. There are a great many held: “In the events that have hap- been abolished, so the commit- able for a solicitor to presume, in examples where a wide variety of pened in this case, I think that it tee has had to consider what the the example given in the query at houses in a row or terrace, or in a is irresistible that a right arises by net effect of this change is. Based paragraph (1) above, that implied building estate, both old and new, necessity or by implication of law on the presumption that a statute easements arose from the deeds are served by drains that do not or under the Rule in Wheeldon v is not retrospective, the commit- of sale of each house. Similarly, have the benefit of a formal grant Burrows.” tee takes the view that section if houses in a housing estate are of easements, or where the ease- 5. The Rule in Wheeldon v Bur- 40 operates only in respect of sold without grants of easement ments granted by the first deed of rows, which had been the subject transactions entered into since 1 for drainage or with inadequate sale are incomplete. of some academic criticism, was December 2009. The committee grants of easements, it would 3. The solicitors’ profession has abolished on 1 December 2009 is of the view that the provisions be reasonable to presume that accepted up to 1 December 2009 and replaced by subsection (2) of of section 40 will apply to all sit- implied easements arose in favour that, as a matter of practice, houses section 40 of the Land and Convey- uations where implied easements of each house upon its sale, unless such as are detailed in paragraphs ancing Law Reform Act 2009. Sec- arose from a deed entered into there is something in the deed of (1) and (2) above would have tion 40 is very clear. The question after 1 December 2009. sale that is inconsistent with such been deemed to have an implied is whether that subsection would 7. The committee takes the easements being implied. easement at common law in rela- apply retrospectively to subdivi- view, in the case of the example 10. However, in the case of tion to any drain running from sions that took place many years raised by this query, that ease- one-off properties, a solicitor the house through other private before. ments would be implied at com- needs to exercise more caution, property to the point of connec- The wording of section 40 is, as mon law by the doctrine of non- and it would be prudent to seek an tion into a public sewer. follows: derogation from grant under the explanation for the circumstances 4. The issue of implied ease- “40(1) The rule known as the Rule Rule in Wheeldon v Burrows, or that would justify the implication ments at common law was con- in Wheeldon v Burrows is abolished as easements of common inten- that an easement was intended, sidered by the Court of Appeal and replaced by subsection (2). tion where the deed dates from and for this to be backed up with in 2017 in the case of Palaceanne (2) Where the owner of land dis- prior to 1 December 2009, with a statutory declaration. Management Limited v AIB ([2017] poses of part of it or all of it in section 40 replacing the Rule in 11. This practice note only 2 IR 675). Ryan P (President of parts, the disposition creates by Wheeldon v Burrows as an avail- deals with implied or deemed the Court of Appeal), in his judg- way of implication for the benefit able method of implication easements, which must not be ment in the appeal in the Pal- of such part or parts any easement where the deed was executed confused with easements arising aceanne case, reviewed the British over the part retained, or other after that date. This should also by prescription, and a separate and Irish case law on the topic. part or parts simultaneously dis- apply in all situations, such as practice note on prescriptive ease- One of those cases was Con- posed of, which those detailed in the paragraph ments will issue shortly. gazette.ie Law Society Gazette December 2020 Practice notes BRIEFING 63

CONVEYANCING COMMITTEE REPLIES TO QUERIES RE MANAGED DEVELOPMENTS When acting for a vendor of a nished if there is a good reason • The client’s authority and mation in the absence of such property in a managed develop- why the client cannot discharge indemnity should be obtained an undertaking. It is the view of ment, a solicitor needs infor- the arrears. in writing. the committee that there is no mation from the management A solicitor is under no obli- basis for this position. A vendor’s company to reply to the relevant gation to give any undertaking, In a situation where a vendor solicitor is generally not in a requisitions on title. If there are and a client cannot instruct a client is not in a position to dis- position to undertake to provide outstanding service charges, a solicitor to give an undertaking. charge service-charge arrears such information about a third management company or its If the client is not in a position prior to the sale closing, then the party, and such an undertaking managing agent often seeks a to pay the arrears before closing, purchaser’s solicitor will ordinar- should not be sought. Section solicitor’s undertaking regarding and if the solicitor is willing to ily request an undertaking from 8(3) of the Multi-Unit Develop- the arrears prior to providing the consider giving an undertaking the vendor’s solicitor regarding ments Act 2011 creates an obliga- replies. and is satisfied that there will be payment of the arrears. The same tion on the ‘unit owner’ to pro- The basis of this stance by a sufficient funds available, then considerations apply to such an vide certain details, such as his management company is that the following should be noted: undertaking, and the undertak- or her name, his or her address, the title deeds often make pro- • Any undertaking should make ing to the purchaser/purchaser’s the names of the tenants in the vision of services dependent on reference to a specific amount solicitor should be consistent unit, particulars of any habitual payment of service charges. Par- and should be qualified by the with any undertaking provided occupiers of the unit other than ticularly in a circumstance where proviso that the particular sale to the management company. tenants, and such other contact there are substantial arrears, a closes within a specified time In circumstances where particulars as the owners’ man- sale is often the only opportu- limit and the proceeds come the vendor is a mortgagee or agement company may reason- nity for a management company into the hands of the solicitor, receiver, these undertakings may ably request. The management to collect moneys due to it, and • A solicitor’s undertaking is be offered by the vendor, and it is company is, of course, entitled so, while facilitating a sale, it will binding even if it does not a matter of contract between the to this information about the require an assurance that the include the word undertaking, parties as to whether or not to new owner, and the requisitions arrears will be paid. • An undertaking should indi- accept such an undertaking. require a letter addressed to the As always, when faced with cate when it will be complied The committee is also aware management company to be pro- a request for an undertaking, a with – if there is no express of requests from management vided on closing, advising it of solicitor should always, in the provision, it is implied that companies for undertakings from the change in ownership. The first instance, request their client the undertaking will be per- vendors’ solicitors to provide relevant details can be provided to discharge the arrears due. An formed within a reasonable contact details for the purchaser, in this letter with the agreement undertaking should only be fur- time, and and a refusal to provide infor- of the purchaser.

GUIDANCE AND ETHICS COMMITTEE TEN STEPS IN MANAGING DATA AND DATA PROTECTION IN YOUR FIRM The compliance requirements how your firm complies with the (article 6 GDPR). Know what 3. Staff training. Ensure staff related to data protection have legal requirements for managing personal data you hold. Make an are adequately trained to recog- dramatically increased, and firms personal data. There is no standard inventory of it, and update the nise when they are working with must have an in-depth under- content that a data-protection pol- inventory on an ongoing basis. personal data, and aware of the standing of their duties and icy must have. However, it should When processing data, under- need to comply with the firm’s responsibilities or risk potentially include high-level principles and stand the principles of data pro- policies when working with per- crippling financial penalties. The rules for your firm, and should set tection (article 5 GDPR), namely: sonal data. It is also critical to General Data Protection Regulation out the procedures and practices • Lawfulness, fairness and trans- ensure that staff are aware of the (EU) 2016/697, the Data Protec- employees should follow. parency, need, without fear of repercus- tion Act 2018, and other legisla- • Purpose limitation, sion, to immediately communi- tion govern the area of data pro- 2. Know what personal data you • Data minimisation, cate any potential data breach tection in Ireland. hold and the principles of pro- • Accuracy, to management. There isn’t cessing personal data. Under- • Storage limitation, a ‘one-size-fits-all’ approach 1. Data protection policy. Have stand what constitutes personal • Integrity and confidentiality, for staff awareness training. It a data protection policy and staff data (article 4 GDPR) and the law- and should be tailored to your firm protocols in your firm to show fulness of processing personal data • Accountability. and its requirements, and should 64 BRIEFING Practice notes December 2020 Law Society Gazette gazette.ie

be an ongoing process in which 6. Management of paper and paper and electronic files. If keep- and establish how to remedy it. employees can be shown how electronic files. Well-maintained ing copy pleadings, advices, court Address the breach. The specific risks arise and how the firm’s filing and document-management outcomes, etc, as precedents, actions you may need to take policies and processes can help systems will help your firm to ensure you delete all personal data may vary based on the nature in that process. remain compliant with the GDPR from same. GDPR states that per- of the breach, and implement a regulations and avoid security sonal data may only be kept in a short-term security fix to prevent 4. Map data flows. Article 30 risks. Electronic file management form that permits identification of further access to your data. Test GDPR states that you must is the practice of importing, stor- the individual for no longer than the fix to ensure that the method maintain a record of processing ing, and managing documents and is necessary for the purposes for of attack cannot be used again. activities under your respon- images as computer files. Have an which it was processed. Keep records of data breaches sibility. To achieve this, your e-communications policy in place, and what steps were taken to firm should create a data-flow and ensure IT systems are robust 8. Legal privilege. Legal profes- remedy the breach. Data subjects map. A data-flow map shows to ensure that electronic files are sional privilege confers on a cli- must be informed of high-risk you what data is collected and managed securely. Ensure you ent a privilege of exemption from data breaches without delay. Per- processed, and shows the flow have an adequate data-recovery disclosure of communication that sonal data breaches and failure to of data from one location to strategy in place. Have a policy may otherwise be required to be report same attract fines (article another. When mapping data in place regarding the storage and revealed. The statutory data pro- 34 GDPR). Investigate how the flows, identify the type of data management of paper records. tection regime and legal and pro- breach happened and learn from collected and its source, deter- fessional confidentiality require- it, and put measures in place to mine the lawful basis for pro- 7. Data retention and destruc- ments are separate and comple- ensure it does not happen again. cessing, identify who you share tion of paper and electronic mentary. Further guidance on the data with and where the files. Know the mandatory peri- legal professional privilege is avail- 10. Data subject access re- data is stored, and how long to ods of retention, having regard able in the recent practice note quests. Know the different retain the data for. to statutory and regulatory limi- published by the Guidance and aspects to the right of access tations – have a retention policy Ethics Committee on the topic under article 15 GDPR and what 5. Data security. Security is a in place for retaining files for (see July 2020 Gazette, pp56-61). data can be requested. It is good risk-based approach – imple- operational or regulatory com- practice to have in place a subject mentation of technical and pliance need. Inform clients that 9. Data breach. A firm must have access requests (SAR) procedure. organisational measures to pro- you operate a retention policy. It in place procedures to deal with You have one month to answer a vide security must be appropri- is good practice to categorise each breaches (detect, report, record SAR. This time can be extended ate to the risk. Have systems file. Do not retain data for longer and investigate). In the event of by a further two months depend- in place to ensure the confi- than necessary. Review data qual- a breach, carry out an immediate ing on the complexity of the SAR dentiality and security of data. ity and remove duplicate data and risk assessment, as time is of the (article 15 GDPR). Exercise caution when send- obsolete data. Further informa- essence: certain breaches must be ing emails. In particular, when tion, including a table outlining reported to the Data Protection Further reading, guidance and tem- email addresses automatically statutory retention periods, can Commissioner within 72 hours plates can be found on the Law Soci- populate, it is critical to ensure be found in the practice note on (article 33 GDPR). Identify the ety website under GDPR guidance the correct address is selected. data retention and destruction of source and extent of the breach and templates and practice notes.

GUIDANCE AND ETHICS COMMITTEE TEN STEPS TO A MORE INCLUSIVE WORKPLACE 1. Diversity v inclusivity. The rience and interests. Everyone make us stronger and smarter. also makes sure each individual first step is taking a look at the is different and has a different ‘Inclusivity’ means creating an has equal opportunities afforded terms ‘diversity’ and ‘inclusivity’. opinion and experience that environment where employees to them and that the deci- ‘Diversity’ means understand- makes them unique. Diversity of are appreciated and made to feel sion-making has been fair and ing that each person is unique opinion is critical to success in included. An inclusive workplace transparent. and recognising our individual the workplace. Workplace diver- is one that values employees’ Diversity and inclusivity are differences. Diversity in the sity is not solely about hiring an differences and makes each per- essential for the day-to-day run- workplace means having a wide array of different individuals, it son feel respected and accepted. ning of a firm – not only are they range of individuals that come is also about making those indi- This type of workplace cel- an important factor in the well- from various racial, ethnic, viduals feel included and equal. ebrates diversity by promoting being of the employees, but they socio-economic and cultural It is about equality of opportu- a culture of trust and respect also provide a huge range of ben- backgrounds and have different nity, fairness, and appreciation among employees, clients, and efits for the firm. These benefits opinions, lifestyles, skills, expe- for the ways in which differences our community. This workplace include increased productivity gazette.ie Law Society Gazette December 2020 Practice notes BRIEFING 65 among employees, faster prob- within the firm. The firm should grammes. These initiatives can comfortable speaking up against lem solving, more reasoned deci- at all times act in accordance with help to remove bias and recog- ongoing discrimination, so try to sion making, higher employee its obligations under equality and nise talent within the commu- make your office an environment morale, and reduced employee disability legislation and educate nity. free from unconscious bias and turnover. all employees in this regard. An discrimination. Foster a culture effective inclusion policy not 6. Educate. Step six involves where every voice is welcome, 2. Evaluate. The second step is only focuses on compliance with educating the employees about heard, and respected. Welcome to take a look at how inclusive the Irish legislation, but also adds inclusion in the workplace and diverse thinking within your firm is. This is done by carrying value to the firm by contribut- on how to understand and sup- firm. Different people from dif- out a comprehensive evaluation ing to employee engagement port all employees to encour- ferent backgrounds and genera- of the firm and examining the and wellbeing. Inclusion must age an inclusive culture in your tions have sometimes very dif- firm’s data in relation to recruit- be embedded into the policies, firm. Employees can be educated ferent perspectives on all sorts of ment, gender pay gaps, age, practices, and the overall culture through the use of cultural train- issues. Diverse thinking can lead headcount, training, and devel- of the firm. ing and diversity workshops to more rounded and reasoned opment. The length of service that the firm can arrange. As legal advice. and progression within the firm 5. Integrate inclusivity into mentioned earlier, developing a must also be considered. Surveys your firm’s core values. The strategic prevention programme 9. Celebrate differences to can be carried out anonymously fifth step in creating a more can help negate conflict before it make everyone feel included. with the employees to find out inclusive workplace is to recog- arises. It is important to organ- One way to show employees, what the key concerns are within nise and value the differences in ise training and information ses- clients, and the community that the firm in relation to the firm’s the people the firm represents sions with facilitators who have the firm respects diversity and inclusivity. These surveys will and employs. The firm should lived experiences, as they will be inclusion is to show that your help establish any barriers the reflect the values and charac- highly knowledgeable on how to firm celebrates difference. This firm has and will encourage teristics of the community in support vulnerable communities. can be achieved by recognising openness among the employees. which it works. The firm should and acknowledging days and From these evaluations, a strat- commit to promoting gender 7. Commit to change. Commit- events that are of significance egy can be developed on how to equality, diversity, and inclusion ting to change involves appoint- to other communities, such as make the firm a more inclusive for the benefit of all solicitors, ing a champion or ally who is Pride Month. This will foster workplace, where necessary. trainees, clients, and members of responsible for instilling a diverse a feeling of belonging and raise the public by pledging the firms and inclusive workplace culture. employee morale throughout the 3. Feedback. Feedback from name to the Law Society’s Gender An ally is someone who is not a firm. Celebrate regardless of dif- these evaluations is a very impor- Equality, Diversity and Inclusion part of a vulnerable or under- ferences. tant step and must be taken seri- Charter – the GEDI Charter. By represented community, but will ously. It should be effective and signing the charter, the firm is take action to create a safe and 10. Reflect everyone’s needs transparent. The best way to publicly committing to taking welcoming workspace to support and preferences at everyday incorporate more inclusivity in the necessary steps to promote that community and advocate functions. The final step in cre- your firm is to identify employ- gender equality, diversity, and on their behalf. This designated ating a more inclusive workplace ees’ needs and preferences. This inclusion in the workplace. person should create a team is to reflect everyone’s prefer- is achieved most effectively The Law Society states that environment where all employ- ences and needs when organis- through the use of surveys, eval- “the signatories to this char- ees can speak up, be heard, and ing work functions and events. uations, and consistent feedback. ter will treat all individuals and feel welcome within the work- This can be achieved by includ- The feedback will also lead to groups of individuals fairly and place. To ensure employees from ing food and beverages that a better understanding of the equally and no less favourably, all groups are heard, an ally can everyone can eat and drink. This employee, improved decision- specific to their needs, in areas of invite members of the underrep- shows that your firm respects making throughout the firm, and gender, civil status, family status, resented groups to write for the the dignity and desires of the increased employee satisfaction sexual orientation, religion, age, firm’s newsletters, speak at staff employees. It is important to levels. Feedback highlights any race, class, disability or mem- meetings, or take on other high- remember that not everyone cel- room for improvement within bership of the Traveller Com- visibility roles. ebrates birthdays or events, so it the firm. munity”. The firm should strive is essential to ask in advance what to create a culture of mutual 8. Communication. Step eight each employee prefers. Make 4. Adopt policies. The next step respect, equal opportunities, and of creating a more inclusive sure all the employees know that is to ensure all of the firm’s poli- inclusion. workplace is communication. the events are optional, as some cies are up to date and that all Inclusivity can be integrated It is important to communi- may not feel comfortable attend- employees are aware and edu- into the firm’s core values by cate your expectations to your ing. These are some simple ways cated on each of the policies. developing and encouraging employees and colleagues. Try to ensure events and work func- Prevention strategies must be initiatives that contribute to to adopt an open-door commu- tions are as inclusive as possible. implemented in order to build the local community and wider nication channel for inclusion Show respect towards everyone, empathy, respect, and resilience society, such as sponsorship pro- concerns. Not everyone may be regardless of differences. 66 BRIEFING Guidance note December 2020 Law Society Gazette gazette.ie

TECHNOLOGY COMMITTEE TIPS FOR ZOOM AND VIRTUAL MEETINGS Ever wondered why back-to- to see the small screen of a laptop, • You can mute and unmute • Download the Zoom app back Zoom calls are so much consider investing in a separate yourself with the space bar. for your phone and also the more tiring than face to face? A webcam. This will come on a lead The host can mute every- Zoom plug-in for Outlook. major factor is the discomfort at that can be plugged into the lap- one on the call at once – There is also a Zoom Chrome listening to voices transmitted top and the camera can be placed Cmd+Ctrl+M (macOS) or Extension and Zoom Firefox through microphones. elsewhere (ideally at eye level). Alt+M (Windows). To quickly add-on, which allow you to This amplifies high frequen- Changing the position of the cam- invite someone to a meeting, schedule a Zoom meeting cies and picks up environmental era will also allow you to broad- use Cmd+I (macOS) or Alt+I via your Google Calendar. noises, which our brains struggle cast a view of your face that is not (Windows). This will bring These can be accessed directly to decode. To be heard over the dominated by your chin, as is usu- you to the invite window and in your Zoom meetings set- internet, we also often need to ally the case when using a laptop. you can use the link from tings. raise our voices as if we are giv- While you are at it, try to have there to paste into an email. • The host should consider cre- ing a presentation, which in itself a light set in front of you, rather Quickly share your screen by ating a checklist for tailoring is tiring. than behind or to the side, to reduce using Cmd+Shift+S (macOS) the meeting, depending on the Quick fix 1: To help you and shadows. or Alt+Shift+S (Windows) type (for example, participant your listeners, use a headphone Other shortcuts are available audio on/off). microphone and use the mute but- Settings tips here: https://support.zoom.us/ ton when you are not speaking. If Set your audio to ‘mute’ and hc/en-us/articles/205683899- Attend and manage meetings how you sound is of great impor- your camera to ‘off’ in settings. Hot-Keys-and-Keyboard- Whether to use the follow- tance in a particular meeting, Only once in the meeting should Shortcuts-for-Zoom. ing functions and options will consider briefly recording yourself you switch them on. This gives • There is also the option to depend on the type and size of in advance so that you can gauge/ you control, and avoids the need have participants automati- the meeting and whether you remind yourself how loudly you to hunt for the settings if unex- cally on mute when they join are the host of the meeting – for should speak. pected circumstances arise in the meeting. This allows the example, internal meetings, cli- Sometimes we find that a your environment. host to introduce them and ent meetings, and public style Zoom meeting worked fine yes- You can hide non-video par- allow them to speak, which meetings (such as running CPD terday, but today the audio is ticipants to reduce clutter on will avoid them interrupting seminars). choppy. You later learn that three your screen – settings > video the flow of the ongoing con- Zoom Business allows you to other devices in your house were > meetings, and tick ‘hide non- versation. pre-allocate people into separate streaming content during your video participants’. • (Business, Education or ‘rooms’. They can be useful (a) call, which has put pressure on The host can create a waiting Enterprise users only). You to make sure that only the people the bandwidth. room that requires the host to can co-host meetings. Go to needed for particular discussions Quick fix 2: Check that the max- admit participants. This allows ‘meeting settings’ and choose are in those discussions, and (b) imum bandwidth is available for for increased security and also the ‘co-host’ option. Once to create breakout rooms that your call. allows for the introduction to your co-host has joined the can also then feed back into the You might be on a call and one the group (“Hi Mary, I’ve seen meeting, go to their window. larger group. of the other participants sounds that you’ve just joined”), so that Choose ‘manage participants’. Hosts should let participants as if they are speaking in a tun- when people are speaking, they When you hover over the pro- know at the beginning of a meet- nel (or indeed they may be saying know who is ‘in the room’. This posed co-host’s name, you can ing what the etiquette will be the same about you). This can also prevents participants being select ‘more’ and choose ‘make (for example, “we will be using be the result of reverberations in the room before the host co-host’. the raise-hand option, given the around a room. arrives. If you do not want to • (Business, Education or Enter- numbers on this call, and I will Quick fix 3: Introduce materials create a waiting room, then the prise users only). You can obtain unmute your mic as appropri- into the space that will absorb sound. option to use the sound notifi- automatic transcription of ate”). Something as simple as adding a cation when someone joins or the audio of a meeting if you • Raise hand – the meeting or- throw or scattering a few cushions leaves can be helpful. have recorded it to the Cloud. ganiser needs to enable the around can reduce the echo. Obviously, permission should ‘non-verbal feedback fea- Smartphones and webcams Function tips be obtained from participants. ture’ to allow participants to have wide-angle lens – they are • (Pro or corp accounts only.) To enable, go to ‘meeting set- raise their hand. Participants great for capturing a landscape, You can allow an assistant to tings/recording’ – see https:// must have Zoom version but result in distorted faces when schedule Zoom calls by going support.zoom.us/hc/en-us/ 4.0.25513.0228 or later to use too close to the face. to ‘meeting settings/other’ articles/115004794983-Auto- this function. Go into the list Quick fix 4: Try to move back and go to ‘assign scheduling matically-Transcribe-Cloud- of participants to raise your from the camera. If you also need privilege’. Recordings. hand. gazette.ie Law Society Gazette December 2020 Guidance note BRIEFING 67

• Given that the murmur of evant email or diary entry. can be used to allow topics to the speakers by calling on peo- assent cannot take place in Zoom meetings increase the be raised in an unobtrusive way. ple who made the comments to Zoom, when asking whether burden on hosts to manage dis- The host can use this to manage elaborate. there is general consensus cussions. It is harder for partici- and to avoid people having pants to take the floor in Zoom to nod vigorously to dem- meetings, and it is harder to take REGULATION onstrate agreement, encour- the ‘talking stick’ from people. age/ask people to use the This is to the benefit of some NOTICE: THE HIGH COURT ‘thumbs-up’ or other nonver- meetings, as they become more In the matter of Kathleen Doocey, a solicitor practising as KM bal signs options (some must structured as people are called Doocey, Solicitors, at American Street, Belmullet, Co Mayo, and be enabled, see above). upon to speak, and the host can in the matter of the Solicitors Acts 1954-2015 [2020 no 40 SA] use the mute/unmute button Take notice that, by order of the President of the High Court made For recurring meetings, consider to manage this – but it can also on 16 November 2020, it was ordered that the name of Kathleen using the same link for those reduce the opportunity for col- Doocey be struck from the Roll of Solicitors. meetings, so that your partici- laboration. Given that Zoom pants can store the meeting link meetings limit the ability to have John Elliot, Registrar of Solicitors, Law Society of Ireland where it suits them rather than wide-ranging and quick-moving 24 November 2020 having to rely on finding the rel- discussions, the chat function

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12_20 gazette.ie Law Society Gazette December 2020 69 PROFESSIONAL NOTICESNOTICES

WILLS Butterly, Mary (deceased), late RATES of 450 Carnlough Road, Cabra, Dublin 7. Would any person hav- ing knowledge of the whereabouts PROFESSIONAL NOTICE RATES of any will made by the above- RATES IN THE PROFESSIONAL NOTICES SECTION ARE AS FOLLOWS: named deceased, who died on Wills – 152 (incl VAT at 21%) 19 February 1992, please con- • € tact Justin Hughes Solicitors, • Title deeds – €304 per deed (incl VAT at 21%) 89 Phibsborough Road, Phibs- • Employment/miscellaneous – €152 (incl VAT at 21%) borough, Dublin 7; DX 149005 Phibsborough; tel: 01 882 HIGHLIGHT YOUR NOTICE BY PUTTING A BOX AROUND IT – €30 EXTRA 8628/882 8583, email: info@ justinhughes.ie ALL NOTICES MUST BE PAID FOR PRIOR TO PUBLICATION. ALL NOTICES MUST BE EMAILED TO [email protected] and PAYMENT MADE BY ELECTRONIC FUNDS Campbell, Patrick Joseph TRANSFER (EFT). The Law Society’s EFT details will be supplied following receipt of your (deceased), late of 54 Deer- email. Deadline for Jan/Feb 2021 Gazette: 15 January 2021. park Road, Castleknock, Dub- No recruitment advertisements will be published that include references to ranges of post-qualification lin 15, who died on 1 August experience (PQE). The Gazette Editorial Board has taken this decision based on legal advice that indicates 2020. Would any person having that such references may be in breach of the Employment Equality Acts 1998 and 2004. knowledge of the whereabouts of a will made by the above- named deceased please contact Denis McSweeney Solicitors, Fogarty, Pauline (deceased), knowledge of the whereabouts O’Connor, Deirdre (deceased), 16 Herbert Place, Dublin 2; tel: late of 19 Ash Street, The of any will made by the above- late of Annagowlan, Ashford, Co 01 676 6033, email: info@denis Coombe, Dublin 8, and formerly named deceased please contact Wicklow, who died on 5 February mcsweeney.com of 5 Martello Mews, Sydney Anne Leonard, tel: 086 345 2013. Would any person hav- Parade, Dublin 4, who died on 4913 or email: annecleonard@ ing knowledge of a will made by Costigan, Majella (deceased), 13 December 2019. Would any yahoo.com the above-named deceased please late of Apartment 93, Custom person having knowledge of a contact Brendan Sharkey, Reddy Hall, Lower Gardiner Street, will executed by the above-named McDermott, Brendan (de- Charlton Solicitors, 12 Fitzwilliam Dublin 1, who died on 7 May deceased or purported to have ceased), late of Portrun, Bal- Place, Dublin 2; tel: 661 9500, 2020. Would any person having been made by the above-named lymurray, Co Roscommon, and email: [email protected] knowledge of the whereabouts of deceased or if any firm is hold- The Esther Rantzen Centre, 2 a will made by the above-named ing same, please contact Daragh Little Albany Street, London, O’Donnell, Helen Christina deceased please contact Michael Quinn, Sheridan Quinn Solici- who died on 19 October 2020. (deceased), late of 4 Silverton, J Breen & Co, Solicitors, Main tors, 48 Pembroke Road, Dublin Would any person having knowl- 132 Ranelagh Village, Dublin 6, Street, Roscrea, Co Tipperary; 4; tel: 01 676 2810, email: daragh. edge of the whereabouts of a who died on 19 October 2020. tel: 0505 22155/22747, email: [email protected] will made by the above-named Would any person having knowl- [email protected] deceased please contact Dolo- edge of any will made by the Kealy, Rosemary (Rosemarie, res Gacquin, Byrne Carolan above-named deceased please Dillon, Gabriel (deceased), otherwise Rose Mary) Cunningham LLP Solicitors, contact McCullagh Higgins & late of Rhode Bridge, Rhode, Co (deceased), late of 9 Forest Park, ‘Oak House’, 39/41 Mardyke Company, Solicitors, 1/2 Cois Offaly. Would any person having Rivervalley, Swords, Co Dublin, Street, Athlone, Co Westmeath; Mara, Dungarvan, Co Waterford; knowledge of a will executed by and formerly of 214 Ratoath Road, tel: 090 647 8466, email: info@ DX 75006; tel: 058 44166, email: the above-named deceased, who Cabra, Dublin 7, who died on 24 bccsolicitors.ie [email protected] died on 1 March 2020, please June 2020. Would any person contact FG MacCarthy, Solicitors having knowledge of the where- LLP, Loughrea, Co Galway; abouts of any will made or pur- tel: 091 841 529, email: law@ ported to have been made by the fgmaccarthy.com above-named deceased, or if any firm is holding same, please con- Dunne, Francis (deceased), tact Early & Baldwin, Solicitors, late of Ballyruin, Ballyroan, 27/28 Marino Mart, Fairview, Portlaoise, Co Laois. Would Dublin 3; tel: 01 833 3097, any solicitor holding or having fax: 01 833 8043, email: info@ knowledge of a will made by the baldwinlegal.com; ref: MOD/ above-named deceased, who died 12678 on 3 April 2020, please contact Rolleston McElwee, Solicitors, Leonard, Richard (deceased), 4 Wesley Terrace, Portlaoise, Co late of 62 Hawthorn Park, Swords, Laois; tel: 057 862 1329, email: Co Dublin, who died on 2 August [email protected] 2020. Would any person having 70 PROFESSIONAL NOTICES December 2020 Law Society Gazette gazette.ie

Bowe, being the person currently party asserting that they hold a entitled to the lessee’s interest in superior interest in the property SOLICITOR’S PRACTICE the premises, intends to apply are called upon to furnish evi- to the county registrar for the dence of such title to the property FOR SALE – GALWAY county of Laois for the acquisi- to the undermentioned solicitors tion of the freehold interest and within 21 days of this notice. Exceptional Private Client Practice for sale in Galway. all intermediate interests in the Take notice that, in default of Would suit an ambitious person looking to work for them- aforesaid premises, and any party such notice being received, the selves with the aid of an experienced retiring practitioner. asserting that they hold a superior applicant, Shirley Cahill, intends interest in the aforesaid premises to proceed with the application is called upon to furnish evidence before the county registrar at the CONTACT: of the title to same to the below- end of 21 days from the date of David Rowe at Outsource, 01 6788 490 named within 21 days from the this notice and will apply to the [email protected] date of this notice. county registrar for the city of In default of any such notice Cork for such directions as may being received, Margaret Bowe be appropriate on the basis that Reynolds, Hubert (deceased), and in the matter of the prop- intends to proceed with this appli- the persons beneficially entitled late of 63 Beech Park, Lucan, erty known as ‘The Old Mill’, cation before the county registrar to the superior interest includ- Co Dublin, who died on 19 May Tea Lane, off Grattan Street, at the end of 21 days from the date ing the freehold reversion in the 2020. Would any person having Portlaoise, in the county of of this notice and will apply to the property are unknown or unas- knowledge of the whereabouts of Laois: an application by Marga- county registrar for the county of certained. any will executed by the above- ret Bowe Laois for such direction as may Date: 4 December 2020 named deceased please contact Take notice that any person hav- be appropriate on the basis that Signed: FitzGerald Legal & Tony Reynolds, solicitor, 4/5 St ing an interest in the freehold the person or persons beneficially Advisory LLP (solicitors for the Mary’s Terrace, Dunboyne, Co estate or any superior interest in entitled to the superior interest applicant), 6 Lapps Quay, Cork Meath; tel: 01 825 2630, email: the following property: being all including the freehold rever- [email protected] that and those ‘The Old Mill, Tea sions in the aforementioned are In the matter of the Landlord Lane, off Grattan Street, Portlao- unknown or unascertained. and Tenant Acts 1967-2019 and Robinson, Ann (deceased) (née ise, in the county of Laois, and as Date: 4 December 2020 in the matter of the Landlord Stephenson), formerly of Faith- more particularly described in an Signed: Bolger White Egan and Fla- and Tenant (Ground Rents) (No legg, Co Waterford, who died on indenture of lease dated the year nagan (solicitors for the applicant), 8 2) Act 1978 and in the matter 11 September 2020. Would any 1800 and made between Henry Lismard Court, Portlaoise, Co Laois of 1 Crescent Villas, O’Connell person having knowledge of the Plunkett (the lessor) of the first Avenue, Limerick: an applica- whereabouts of a will made by part and Jane Booth (the lessee In the matter of the Landlord tion by Arnold Leahy of Cap- the above-named deceased please of the other part), certain lands, and Tenant Acts 1967-2019 and panalaght, Cratloe, Co Clare contact Julie Bermingham, solici- hereditament and premises, in the matter of an application Take notice that any person hav- tor, MW Keller & Son Solicitors including the above-mentioned by Shirley Cahill of 1 Burton ing any interest or any estate LLP, 8 Gladstone Street, Water- premises were demised unto the Terrace, Gardiner’s Hill, Cork, in the following property – all ford; email: [email protected] aforesaid lessee for the term of and in the matter of the prop- that and those the offices and 390 years from 1 May 1801 and erty now known as 1 Burton building and lands known as Terrace, Gardiner’s Hill, Cork TITLE DEEDS subject to yearly rent of ten guin- 1 Crescent Villas, O’Connell In the matter of the Landlord eas, then currency, and to the cov- Take notice any person having a Avenue, situate in the parish of and Tenant (Ground Rent) Acts enant on the part of the lessee and freehold interest or any interme- St Michael and city of Limerick, 1967-2005 and in the mat- conditions therein respectively diate interest in all that and those held under an indenture of lease ter of the Landlord and Tenant reserved. the property known as 1 Burton or sublease made 16 May 1908 (Ground Rents) (No 2) Act 1978 Take notice that Margaret Terrace, Gardiner’s Hill, in the between Patrick Kennedy and city of Cork (hereinafter called Patrick S Pearse of the one part, ‘the property’), the subject of a and Sydney A Jaffe of the other lease dated 16 March 1963 made part, for a term of 980 years PRIME FORESTRY INVESTMENT between Pauline Lee of the one from 16 May 1908 at an annual PRIME FORESTRY INVESTMENT part and Donal Cremin of the rent of £13 – should give notice FOR SALE: FORESTRY LANDS - other part for a term of 31 years of their interest in the property FOR SALE: FORESTRY LANDS - from 29 September 1962 and to the solicitors named below GlencullenGlencullen MountainMountain ((FolioFolio DN18369) DN18369) subject to the yearly rent of IR£1 within 21 days of the date of ExemptionsExemptions from from inheritanceinheritance & & capital capital gains gains thereby reserved, and to the cove- this notice, and take notice that nants by the lessee and conditions Arnold Leahy intents to submit UndividedUndivided 20% 20% shareshare of ApproxApprox 70 70 Acres Acres / / therein contained. an application to the county reg- 28.3228.32 Ha. Ha. ie.ie. (14(14 Acres / / 5.66 5.66 Ha) Ha) Take notice that Shirley Cahill istrar for the county of Limerick HasHas current current general general felling licence.licence. exp.3/22 exp.3/22 intends to submit an application for acquisition of the freehold to the county registrar of the interest in the aforesaid property PlantedPlanted 1991. 1991. 3km3km from JohnnyJohnny Foxes Foxes @ county and city of Cork for the and all intermediate and superior €@€85K85K e email:mail: [email protected]@gmail.com acquisition of the freehold inter- interests in the property, and any est in the property, and that any party asserting that they hold a gazette.ie Law Society Gazette December 2020 71 PROFESSIONAL NOTICESNOTICES freehold superior or intermedi- shares, having its registered office ate interest in the aforesaid prop- at 53 O’Connell Street, Limerick, erty are called upon to furnish intends to submit an application IS YOUR CLIENT INTERESTED to the county registrar for the IN SELLING OR BUYING evidence of the title to the afore- mentioned premises to the below county and city of Limerick for named solicitors within 21 days the acquisition of the fee farm A 7-DAY LIQUOR LICENCE? from the date of this notice. grantor’s interest and any inter- email: [email protected] In default of any such notice mediate interest in the aforesaid being received, Arnold Leahy properties, and any party assert- web: www.liquorlicencetransfers.ie intends to proceed with the appli- ing that they hold a superior cation before the county registrar interest in the aforesaid properties Call: 01 2091935 at the end of 21 days from the date (or any of them) is called upon to of this notice and will apply to the furnish evidence of the title to the county registrar for the county aforementioned properties to the neth Coleby White, and Cyril said property to the undermen- of Limerick for such directions undersigned solicitors within 21 Hunt Hardman of the one part, tioned solicitors within 21 days as may be appropriate on the days from the date of this notice. and Peter Kevin O’Gorman of from the date of this notice. basis that the persons beneficially In default of any such notice the other part, for a term of 105 Take notice that, in default of entitled to any freehold interest, being received, the applicant years from 1 November 1952, any such notice being received, superior interest or intermediate intends to proceed with an appli- subject to the yearly rent of £6.12 the applicant, Waterford Intel- interest in the aforesaid premises cation before the county registrar shillings thereby reserved, and to lectual Disability Association are unknown or unascertained. at the end of 21 days from the date the covenants by the lessee and Company Limited by Guarantee, Date: 4 December 2020 of this notice and will apply to the conditions therein contained. will apply at the end of 21 days Signed: Michael Nugent & Co (solic- county registrar for the county Take notice that Waterford from the date of this notice to the itors for the applicant), 6 Sandford and city of Limerick for direc- Intellectual Disability Association county registrar for the city of Road, Ranelagh, Dublin 6 tions as may be appropriate on the Company Limited by Guarantee Waterford for directions as may basis that the persons beneficially intends to submit an application be appropriate on the basis that In the matter of the Landlord entitled to the superior interest, to the county registrar for the the persons beneficially entitled and Tenant (Grounds Rents) Acts including the fee farm grantor’s city of Waterford for the acquisi- to the superior interest includ- 1967-2019 and in the matter of interest/freehold reversion in tion of the freehold interest in the ing the freehold premises are an application by Shelbourne each of the aforesaid properties, aforesaid property, and that any unknown or unascertained. Medical Properties Limited in are unknown or unascertained. party asserting that they hold a Date: 4 December 2020 respect of licensed premises at Date: 4 December 2020 superior interest in the aforesaid Signed: Nolan Farrell & Goff (solici- Hassett’s Cross, Limerick V94 Signed: JR Sweeney LLP (solicitors property is called upon to furnish tors for the applicant), Newtown FT95, and bungalow adjoining for the applicant), Morehampton evidence of the title to the afore- Lodge, Newtown, Waterford at Shelbourne Road, Limerick House, 8 Merrion Road, Ballsbridge, V94 F8Y4 Dublin D04 YOP4 Take notice any person having any interest in the fee simple or In the matter of the Landlord Well established South Dublin Solicitors practice fee farm grantor’s interest or any and Tenant Acts 1967-2005 and considering a strategic merger with interested intermediate interest in all that in the matter of the Landlord parties who wish to exit/retire immediately and those the lands and premises and Tenant (Ground Rents) (No or within two years. comprising the licensed prem- 2) Act 1978 (as amended) and ises at Hassett’s Cross, situate at in the matter of an application Contact [email protected] Sexton Street North, Shelbourne by Waterford Intellectual Dis- Road, in the parish of St Nicholas, ability Association Company or telephone 086 855 1813 electoral division of Castle A, in Limited by Guarantee, with a the city of Limerick, and the site registered address at Spring with bungalow erected thereon Garden, Ashley Drive, Cher- adjoining, situate at Shelbourne rymount, Waterford, and in the Road, in the parish of St Nicholas, matter of the property known electoral division of Castle A, in as ‘Marian House’, Summer- the city of Limerick, all of which ville Avenue, Co Waterford property is now comprised in Take notice that any person hav- Folio 70771F of the register of ing an interest in the freehold freeholders, county of Limerick, estate of the property known as held under a fee farm grant dated ‘Marian House’, Summerville LISTEN UP! 8 August 1863 and made between Avenue, in the city of Waterford, Benjamin Lefroy of the one part being the property the subject of Tune in to Gazette and Thomas Travenor of the a lease made between Winifred other part. Mary White, Gertrude Christine audio articles at Take notice that Shelbourne White, Lucy Dorice White, Juliet Medical Properties Limited, Rachel Boyd, Margery Smith, Gazette.ie a private company limited by Geraldine Holmes Webber, Ken- 72 FINAL VERDICT December 2020 Law Society Gazette gazette.ie

PRO BONOBO YOU SQUAWKIN’ TO ME? Five foul-mouthed parrots have been separated at an English- zoo after learning to swear, RTÉ reports. Billy, Elsie, Eric, Jade and Tyson joined Lincolnshire Wild- life Park’s colony of 200 grey parrots in August. But soon after, they started encouraging each other to swear. “We are quite used to parrots swearing, but we’ve never had five at the same time,” a spokes- man said. “Most parrots clam up outside, but for some reason these five relish it. “We haven’t had one com- plaint,” he said. “When a parrot tells you to f**k off, it amuses people very highly. It’s brought a big smile to a really hard year.” COCK-A-DOODLE-DON’T The police chief of Madugang a cock when a gaff – one of the “a piece of bad luck that I cannot gatherings have been blamed for village in the Philippines has steel blades attached to the birds’ explain. This is the first time in helping to spread coronavirus. been killed during a raid on legs – severed his femoral artery, my 25 years as a policeman that Officers arrested three farmers an illegal cockfight, the BBC according to the Governor I lost a man due to a fighting who had been taking part in the reports. Edwin Ongchuan. Provincial cock’s spur.” illegal fight. Seven cocks were Christian Bolok, who was in police chief Colonel Arnel Apud Police have been cracking down seized, along with a pair of gaffs his mid-30s, was trying to grab told AFP that the accident was on illegal cockfights because the and around €9 in cash. CLOTHES DO NOT ROBOT WOLVES DEAL MAKETH THE MAN WITH BEAR NECESSITIES A top QC in England has come a barrister’,” he is reported to Robot wolves have been deployed under fire for suggesting that have said. to scare bears away from the trainee barristers should have Barrister David Wolfson said: Japanese town of Takikawa, The “well-polished shoes” and a “A barrister isn’t meant to ‘look Guardian reports. “proper hair cut”, Legal Cheek like’ anything. A barrister should Two ‘Monster Wolf’ robots reports. ‘be’ many things – courageous, were installed after bears were In a tweet, Richard Atkins fair, determined, reliable, hon- discovered roaming neighbour- appeared to back the views of est and (at least) competent. I hoods in September. Apparently, recently deceased High Court believe you can be all of those no one has seen a bear since. judge Robert Johnson. things, even if your shoes aren’t The Monster Wolf has four An obituary of the judge stated well-polished.” legs, a shaggy body, blond mane There have been dozens of that he “expected his pupils to And another responded: “Wait and red, glowing eyes. When its bear attacks in 2020, two of them have their hair properly cut and a minute! We’re supposed to get motion detectors are activated, fatal, prompting the government to wear well-polished shoes. fully dressed for court these days? its head moves, lights flash, and it to convene an emergency meet- ‘Even if you don’t know any I thought that ended in March? emits wolfish howling sounds and ing in October to address the law … you can at least look like #tophalfonly #dontstandup”. machinery noises. threat. LegalMind LegalMind Supporting Mental HealthLegalMindLegalMind and Resilience Supporting Mental Health and Resilience inSupporting Mental Health Supporting Mental Healththe Legal Community and Resilience Resilience in the Legal Community in inthe the Legal Legal Community Community LegalMind is a confidential, independent, low-cost mental health LegalMind is a confidential, independent, low-cost mental health supportLegalMindLegalMind for is asolicitors is a confidential, confidential, and their dependants. independent, independent, low-costlow-cost mental mental health health support for solicitors and their dependants. supportsupport for for solicitors solicitors and and their dependants. their dependants. The support is a permanent support, based in Ireland, and will be The support is a permanent support, based in Ireland, and will be The support is a permanent support, based in Ireland, and will be Thethere support for solicitors is a permanent through any support, personal based or professionalin Ireland, and challenges. will be there for solicitors through any personal or professional challenges. 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. SolicitorsSolicitors can can call call LegalMind at LegalMind at anyany time ofof the the day day or or night, night, from from all all Solicitors can call LegalMind at any time of the day or night, from all overSolicitorsover Ireland, Ireland, can and call and talk LegalMind attalk to to a a mental mental any healthhealth time professionalprofessional of the day aboutor about night, any any fromissues issues all over Ireland, and talk to a mental health professional about any issues theyoverthey Ireland,or theiror their familyand family talk may may to bea be mental facing. facing. health professional about any issues they or their family may be facing. they or their family may be facing. AfterAfter this this initial initial conversation, conversation, solicitors solicitors maymay then then avail avail of of further further low low- - After this initial conversation, solicitors may then avail of further low- coAfterstco supports stthis supports initial – counselling,–conversation, counselling, psychotherapy psychotherapy solicitors may or or then psychological psychological avail of further supports supports low - cost supports – counselling, psychotherapy or psychological supports withincostwithin supports a 30 a 30 kilometre kilometre– counselling, radius radius of psychotherapyof their their home. or psychological supports within a 30 kilometre radius of their home. within a 30 kilometre radius of their home.

For more information visit: www.lawsociety.ie/legalmind For more information visit: www.lawsociety.ie/legalmind For more information visit: www.lawsociety.ie/legalmind Access the service directly and talk to a counsellor now on freephone: AccessFor the more service information directly andvisit: talk www.lawsociety.ie/legalmind to a counsellor now on freephone: Access the service directly and talk to a counsellor now on freephone: Access the service directly and1800 talk 81 to41 a 77 counsellor now on freephone: Access the service directly and1800 talk 81 to41 a 77 counsellor now on freephone: 1800 81 41 77 1800 81 41 77 LEAP is the best system for lawyers and staff to work from home

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