Making waves Keeping the connection In-house independence The Gazette speaks to Katie Technology both contributes A recent judgment of the Cadden on the rewards of life to, and diminishes, our sense ECJ provides clarification on outside legal practice of wellbeing in-house independence

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PRESIDENT’S MESSAGE

A STRONG VOICE IN POLICY DEBATE

can scarcely believe that I have almost an independent legal profession in a properly completed the first four months of my functioning democracy. It has been a topic of much term of office. The honeymoon period is international discussion and debate recently. I well and truly over. Since my last message highlighted to my newly qualified colleagues that in this Gazette, the Government has been this independence is not a privilege for lawyers; dissolved and, as I write, we are in the rather, it is the right of citizens. hands of a caretaker government. Ahead of the The rule of law was also the main theme of the 2020 general election, I highlighted the Law European Presidents’ Conference, held in Vienna ISociety’s key priorities, including access to from 20 to 21 February, which I was privileged to justice and legal aid, insurance reform, Brexit attend on behalf of our members. and promoting Ireland as a leading centre for international legal services, and taxation. Midlands meeting In setting out the above priorities, I Together with the director general, I recently specifically noted that the Law Society of attended the AGM of the Midland Bar Ireland is committed to championing the Association in Tullamore, where we had a solicitors’ profession and providing a high constructive and collaborative meeting regarding standard of service to our stakeholders and issues that are common to all practices, members of the public at all times. particularly smaller ones. It is reassuring to hear that practices are returning to a level Shining example of profitability. It is clear, however, from I am proud of the quality and diversity of my interaction with colleagues throughout our lawyers who are qualifying at the Law the country, that some smaller practices School. They are in demand nationally and continue to struggle. The Law Society is internationally – not just in the traditional areas of private practice, but increasingly as in-house counsel, valued Government employees, critical members of management teams, academia, and INDEPENDENCE IS NOT other positions, where their legal skills and training are seamlessly transferable. A PRIVILEGE FOR LAWYERS; I was delighted to attend my first parchment ceremony on 13 February, where our guest RATHER, IT IS THE RIGHT speaker was Claire Loftus. Claire is only the third DPP in the history of the State, the OF CITIZENS first female, and the first solicitor to serve in the post. She is a shining example of how alive to such difficulties and has rolled out women are taking a leadership role in the a number of supports to members, including law. The DPP was joined on the stage by the the Small Practice Business Hub at recently elevated Court of Appeal judge and www.lawsociety.ie/businesshub. I encourage past-president of the Law Society, Mr Justice all within that cohort to access the hub. Donald Binchy. I am always open to hearing from colleagues

All three speakers took as our theme the with ideas to support all practitioners, at MICHELE O’BOYLE, rule of law and the essential role played by [email protected]. PRESIDENT 2 CONTENTS??????? ?????? March 2020 Law Society Gazette gazette.ie PIC: SHUTTERSTOCK LAW SOCIETY GAZETTE • Vol 114 No 2 Making waves Keeping the connection In-house independence Volume 114, The Gazette speaks to Katie Technology both contributes A recent judgment of the Cadden on the rewards of life to, and diminishes, our sense ECJ provides clarification on outside legal practice of wellbeing in-house independence number 2

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03 SOMEONE’S Law Society of Ireland tel: 01 672 4828 LOOKING AT YOU fax: 01 672 4801 9 771393 695029 ISSN 1393−6956 CCTV and GDPR email: [email protected] PROFESSIONAL NOTICES: see the ‘Rates’ panel in the professional notices section of this Gazette 34 COMMERCIAL ADVERTISING: contact Seán Ó hOisín, 10 Arran Road, Dublin 9; mobile: 086 811 7116, tel: 01 834 6891, email: sean@ lawsociety.ie. See the Gazette rate card online at www.lawsociety.ie/ gazette-rates HAVE YOU MOVED? Members of the profession should send change- of-address details to: IT Section, Blackhall Place, Dublin 7, or to: [email protected]

Editor: Mark McDermott FIIC Deputy editor: Dr Garrett O’Boyle Art director: Nuala Redmond Editorial secretary: Catherine Kearney Printing: Turner’s Printing Company Ltd, Longford

Editorial board: Michael Kealey (chairman), Mark McDermott (secretary), Aoife Byrne, Ken Casey, Mairéad Cashman, Caroline Dee-Brown, Hilary Forde, Richard Hammond, Teri Kelly, Patrick J McGonagle, Aisling Meehan, Heather Murphy, Ken Murphy, Andrew Sheridan

No material from the Gazette may be published or used without the permission of the copyright holder. The Law Society of Ireland can accept no responsibility for the 40 22 accuracy of contributed articles or statements appearing in this magazine, and any views or opinions expressed are not necessarily those of the Law Society’s Council, save where otherwise indicated. No responsibility for loss or distress occasioned to any person acting, or refraining from acting, as a result of the material in this publication can be accepted by the authors, contributors, editor or publishers. The editor reserves the right to make publishing decisions on any advertisement or article submitted to this magazine, and to refuse publication or to edit any editorial material as seems appropriate to him. Professional legal advice should always be sought in relation to any specific matter.

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A MAGAZINE FOR A HEALTHIER PLANET

THE PACKAGE THE PAGES THE PAPER Your Gazette The entire magazine Your Gazette uses FSC packaging is is 100% recyclable certified paper, from 100% compostable so, if disposing of it, sustainable, ecologically from the March please place it in managed forests. 2020 issue your green bin Visit www.fsc.org 26 gazette.ie Law Society Gazette March 2020 CONTENTS 3

FEATURES

28 I don't want to miss a thing 46 Swings and roundabouts How does the everyday use of video-recording sit with data- The 2012 children’s rights referendum represented a protection legislation in both a personal and commercial profound change to the constitutional rights of children, context? Eoin Cannon has it under surveillance although its true impact may not yet be fully recognised. In the first of a two-part article, Donagh McGowan asseses the swings and roundabouts 34 Tide is high Mayo solicitor Katie Cadden describes the roller-coaster ride of her legal career, which has taken her from the 50 Digital dummies fashion houses of Paris to a seat on the council of the RNLI. Our relationship with technology – whether email, Mark McDermott pushes the boat out messaging or social media – at once contributes to, and diminishes, our sense of wellbeing. Antoinette Moriarty goes in search of a soother 40 Data capture A 2019 audit of 680 vocational assessments is revealing about those who brings claims for loss of earnings in Irish personal injury cases. Elva Breen processes the data

46 50 54

REGULARS

4 The big picture 56 News in depth: DPC warns about the dangers of Standout photo of the month ‘mass-produced’ data-privacy decisions 60 News in depth: Mr Justice MacMenamin has 6 criticised the plastic-bag levy legislation for being People ‘overly complex’ 62 Eurlegal: The ambitious target of the EU’s ‘Green Deal’ 12 News 67 Briefing 21 Comment 67 Council reports: 6 December 2019 and 21 Letters 24 January 2020 22 Viewpoint: Suing a hospital – what a plaintiff must do 69 Practice notes 26 Viewpoint: A recent judgment provides clarification 70 Guidance notes on the independence of in-house lawyers 73 Regulation

54 Analysis 75 Professional notices 54 News in depth: Crowe’s market study of sole practitioners and smaller practices 80 Final verdict 4 ???????IN FOCUS ?????? MarchMarch 20202020 LawLaw SocietySociety GazetteGazette gazette.iegazette.ie

THE BIG PICTURE gazette.iegazette.ie LawLaw SocietySociety GazetteGazette MarchMarch 20202020 ?????? ???????????????IN FOCUS 5

AND LO, THEY SWARMED O’ER THE LAND Men chase away a swarm of desert locusts in the bush in Kitui County, Kenya, some 200km east of Nairobi. Large swarms have been invading the country for weeks, threatening food security. The voracious insects have infested some 70 thousand hectares in Somalia, which the UN

Food and Agriculture Organisation PIC: EPA-EFE/DAI KUROKAWA describes as the “worst situation in 25 years” in the Horn of Africa. One swarm in Kenya was estimated to contain between 100-200 billion locusts – capable of devouring as much food as 84 million people would consume in a single day 6 PEOPLE March 2020 Law Society Gazette gazette.ie DIPLOMA CENTRE CONFERRAL CEREMONIES 2019 ALL PICS: CIAN REDMOND

First-place prize-winners who achieved the highest grades in their respective diplomas were (back, l to r): Derek Duffy (Diploma in Construction Law), Lincoln Nelson and Sharon Delaney (Diploma in Mediator Training), Lorraine Heffernan (Diploma in Employment Law), John Ringrose (Diploma in Healthcare Law), and Cian Duane (Diploma in Commercial Property); (front, l to r): Deirdre Flynn (acting co-head, Diploma Centre), Brendan Twomey (chair, Law Society Curriculum Development Unit), Ms Justice Aileen Donnelly and Ms Justice Bronagh O’Hanlon

Aengus Farrell achieved the highest grade in the Tomás Nolan achieved the highest grade in the Natalie Coen attained the highest grade in the Diploma in Aviation Leasing and Finance and received Diploma in Sports Law and received his prize from Diploma in Insurance Law and was presented with his prize from Marie O’Brien (A&L Goodbody) John Treacy (CEO of Sport Ireland) the Kennedy Prize by Andrew McGahey (Kennedys) gazette.ie Law Society Gazette March 2020 PEOPLE 7 CERTIFICATE IN COMPANY SECRETARIAL LAW AND PRACTICE ALL PICS: CIAN REDMOND

Certificate in Company Secretarial Law and Practice prize-winners (l to r): John Burns (ICSA: the Chartered Governance Institute), Eilish Rock, Lucinda Shaw (prize- winner), Aisling McCarthy (prize-winner), Alison McDonnell (prize-winner), Andrea DeCourcey (prize-winner) and Jennifer Rock FIELDFISHER DIPLOMA IN TRUST AND PRIZE ESTATE PLANNING

Diploma in Trust and Estate Planning prize-winners received awards from STEP Ireland (l to r): Deirdre Aimee Dillon attained the highest grade in the Diploma Dunne (STEP Ireland), Anne Clancy (prize-winner), Jennifer Aldwell (prize-winner), Jennifer Morrow in Advocacy Skills and received the Fieldfisher Prize from (prize-winner), Tina Quealy (chair, STEP Ireland) and Deirdre Flynn (acting co-head, Diploma Centre, Mark Woodcock and Barry Walsh of Fieldfisher and course leader) 8 PEOPLE March 2020 Law Society Gazette gazette.ie DIPLOMA IN AVIATION LEASING AND FINANCE ALL PICS: CIAN REDMOND

The Diploma in Aviation Leasing and Finance conferring class of 2019 with (front): Deirdre Flynn and Claire O’Mahony (both acting co-heads, Diploma Centre), and guests Judge Rosemary Horgan and Marie O’Brien (A&L Goodbody) DIPLOMA IN JUDICIAL SKILLS AND DECISION-MAKING

The Diploma in Judicial Skills and Decision-Making conferring class of 2019 with (in front row): Deirdre Flynn and Claire O’Mahony (both acting co-heads, Diploma Centre), Cian Monahan (course leader), Richard Hammond (vice-chair, Law Society Education Committee) and Brendan Twomey (chair, Law Society Curriculum Development Unit) gazette.ie Law Society Gazette March 2020 PEOPLE 9 DIPLOMA IN INSURANCE LAW ALL PICS: CIAN REDMOND

Diploma in Insurance Law conferees with (front, l to r): Andrew McGahey (Kennedy’s), Brendan Twomey (chair, Law Society Curriculum Development Unit), Ms Justice Bronagh O’Hanlon and Ms Justice Aileen Donnelly; (back, l to r): Deirdre Flynn (acting co-head, Diploma Centre), Natalie Coen (Kennedy’s prize-winner), Anne-Marie Butler, Joanne Ryan, Claire O’Mahony (acting co-head, Diploma Centre) and Richard Hammond (vice-chair, Law Society Education Committee) DIPLOMA IN CRIMINAL LAW JUDICIAL SKILLS DISCOURSE AND DECISION- MAKING

Attending a session of the Diploma in Judicial Skills and Decision-Making, which is organised by the Law Society’s Diploma Centre, were (from l to r): John Lonergan (former governor, Mountjoy Prison), Hilkka Becker (chairperson, Participants in a panel discussion for the Diploma in Criminal Law programme International Protection Appeals Tribunal) and Cian Monahan (course leader, were Patricia Harvey (course leader), Áine Bhreathnach (Shalom Binchy & Co Diploma Centre) Solicitors) and Noeline Blackwell (CEO, Dublin Rape Crisis Centre) 10 PEOPLE March 2020 Law Society Gazette gazette.ie SOLICITORS OF THE FUTURE ALL PICS: CIAN REDMOND

A cohort of 42 transition year (TY) students from around the country visited Blackhall Place to participate in the Law Society’s week-long, activity-based ‘Solicitors of the Future’ programme. Open to schools around the country, the programme encourages second-level students to consider a career in law and offers insights into the role of the solicitor. Activities included a visit to the Criminal Courts of Justice, tours of large commercial law firms, expert-led workshops, guest speakers, courtroom activities, a careers seminar and mock trial. The programme was facilitated by Law Society staff, PPC1 trainees and practising lawyers. For more information, visit www.lawsociety.ie/futuresolicitors

Miriam McDermott is presented with her Adam Daly is congratulated at the end of the TY Bebhinn Rainey receives her certificate of certificate of achievement byTP Kennedy programme by director of education TP Kennedy achievement from TP Kennedy

It's smiles all round from Tom Hanrahan and Ellen Cosgrove proudy receives her certificate Jay Burke-Flanagan is presented with his director of education TP Kennedy of achievement from TP Kennedy certificate by TP Kennedy gazette.ie Law Society Gazette March 2020 PEOPLE 11 PLUGGING INTO THE LAW SOCIETY’S PPC HYBRID PIC: CIAN REDMOND

On 10 January 2020, the Law Society welcomed 46 trainee solicitors to the Law School campus for their first on-site lectures for the new PPC Hybrid course. The course marks a new chapter for the Law School, and reduces barriers and provides greater access to the profession for trainees from diverse educational, professional and socio-economic backgrounds. Trainees were welcomed by Ken Murphy (director general), TP Kennedy (director of education), Michael V O’Mahony (past-president, Law Society), Geoffrey Shannon (deputy director of education), Rory O’Boyle (PPC Hybrid course manager) and lecturers MIDLAND MEETING OF MINDS

Members of the Midland Bar Association (MBA) held their AGM in the Tullamore Court Hotel on 12 February. Special guests included Law Society President Michele O’Boyle and director general Ken Murphy; (front, l to r): Patrick Fox (treasurer, MBA), Mary Clear (secretary, MBA), Michele O’Boyle (president, Law Society), Dermot Scanlon (president, MBA), Ken Murphy (director general), Anne-Marie Kelleher, Emeria Flood, Sinead Nea and Brian O’Sullivan; (back, l to r): Brian O’Brian, Brian Carolan, John Wallace, Raymond Mahon, Michelle Mellotte, Mark Scanlon, Jane Farrell, Joanne Bane, Tom Farrell, John Cummins, Robert Marren, Patrick Martin and Dermot Mahon 12 NEWS March 2020 Law Society Gazette gazette.ie SHOULD COMPUTERS HAVE A LEGAL PERSONALITY? n The question of whether law exceptions, such as pastiche computers should have a legal or parody, as well as use for personality was the topic for a educational purposes and news lively debate at the inaugural reporting. Law Society/Irish Music Rights The new legal framework also Organisation (IMRO) copyright allows copyright owners to pur- lecture, at Blackhall Place on 18 sue lower-value IP claims in the February. District Court. Law Society adjunct professor The law of copyright, first Mark Hyland, who delivered the introduced by the 1710 Statute of main lecture, said that copyright Anne, gave the right to copy one’s issues would only become more own creative work. This acted as complex as the pace of artificial an incentive to creativity and cre- intelligence (AI) accelerated. ation, by protecting it economi- Since AI algorithms now cre- cally under the law, but only gave ate original work extensively on 28 years of protection. computers, the question arises Copyright is a proven and flex- about where the copyright TP Kennedy (director of education), Dr Mark Hyland (Law Society adjunct ible tool in protecting a diverse resides when there is limited professor) and Eleanor McEvoy (IMRO chair) range of works, Dr Hyland said. human input. It protects trademarks, patents “This is almost certain to economy, and an excellent choice of intangible value are held in and industrial design, which become more complex, as artists of specialisation for lawyers, copyrighted works, such as soft- makes it economically very use more artificial intelligence,” Carol Plunkett of William Fry ware, art, photography, music, important. And copyright con- Hyland pointed out, forecasting said. magazines, newspapers, movies fers both economic and moral an increased dialogue between The fascinating and fast- and drama, the audience heard. rights, to make money and pro- copyright and technology, evolving copyright area makes it They were reminded that the tect the creative integrity of the including the internet of things, an exciting time to be an IP law- 2019 Copyright Directive became copyright owner, he said. 3D printing, blockchain and yer, intersecting, as it does, with EU law last year, and must be Strong copyright laws are robotics. data protection and intellectual transposed by the Irish Govern- particularly important to Ire- IP and copyright law are of property, Plunkett said. ment into Irish law by June 2021. land, which is the second-largest vital importance to the Irish Up to 80% of corporate assets The directive allows copyright exporter of software in the wold. STREET LAW AN UNMITIGATED SUCCESS PIC: DEREK OWENS Street Law is an initiative that This led to the country’s first places trainees and volunteers primary school taking part in the in local schools, community set- programme – St Francis Xavier’s tings, and prisons to teach par- Primary School in Dublin 15. ticipants about law. It aims to Students prepared for, and held, promote legal literacy, equality, a mock trial in the Law Society’s access to law, and to teach high moot court and Presidents’ Hall. cognitive and social skills that Now in its second year, chil- enhance participants’ effective- dren from the age of ten are ness in legal matters. learning about ethics, the rule More than 3,500 students have of law, and gaining confidence in completed the Street Law pro- their ability to speak and express gramme since the Law Society’s their opinions. Education Centre began running In addition this year, 42 it in 2013. Originally developed teach law in a practical way. gave the go-ahead to two staff trainee solicitors visited 15 part- in Georgetown University in the The Society’s Regulation members, Sheila O’Sullivan and nering DEIS (Delivering Equal- United States, the initiative places department is also a major sup- Mary Ann McDermott, to initi- ity of Opportunity in Schools) trainee solicitors studying at the porter. In the summer of 2018, ate a Street Law programme for schools to bring the Street Law Law Society in local schools to director of regulation John Elliot children in the local community. programme to over 500 students. gazette.ie Law Society Gazette March 2020 NEWS 13 ‘THIS IS NOT HOW CHILDREN SHOULD LIVE’ – BUT CALCUTTA RUN GIVES HOPE n Calcutta Run event manager hospital now employs 40 doctors Hilary Kavanagh has seen, first- and 60 staff, treating over 11,000 hand, how Kolkata slum-dwell- patients and carrying out 800 ers have their lives transformed surgeries each year. by funds raised by the Irish legal profession. Hilary made her first Slum villages trip to the Indian city in 2019. On her trip, Hilary also saw what Close to Bangladesh, many passes as home for children and arrive in the city from surround- their families, with many thou- ing states, and do what they sands still living on raised beds can to survive. Children leave under motorways, in slum vil- their families and hop on trains lages, and living without running to Kolkata, often scavenging water. in rubbish dumps, on riverbanks “This is not how children or train-tracks to earn a few should live, and this is why we rupees. costs of the HIVE Emergency They were proud to show will continue to raise much- During her recent trip, Hilary Response Unit, which operates off trophies won for art, photog- needed funds to bring more (with other committee members) ambulances that rescue aban- raphy and dance projects, and children through the care of visited four of the projects that doned and trafficked women how they could now use com- HOPE,” said Hilary. totally rely on funding from the and children, accident victims, puters. This year’s Calcutta Run will Calcutta Run. and people suffering from men- Extra funds from the 2018 take place on Saturday 23 May, tal-health issues. Emergency Calcutta Run paid for the ground ending with the ‘Finish Line Vulnerable response is not often available to floor of the new wing of the Festival’ during the afternoon at The BPWT Snehneer Girls those living on the streets or in HOPE hospital. Local hospitals Blackhall Place. Home is a residence for 46 girls slums, so HIVE helps those who tend not to care for people living Runners and walkers can take under 14 who have been rescued are socially and economically on the streets. Many don’t have part in a 5k or 10k route, while from vulnerable situations in the marginalised. ID cards or can’t speak the local other athletes can participate in slums of Kolkata. dialect, having moved to the city tennis and soccer tournaments. Kasba Girls Home also sup- Squalor from the surrounding states or The Cork and Sligo legs of the ports girls under 14, providing Hilary describes how she wit- Bangladesh. event take place on Sunday 24 nutrition and education, recre- nessed, first-hand, how the Cal- Maureen Forrest (HOPE May. ational activities and outings, in cutta Run-funded homes have Foundation CEO and founder) You can support The Hope a safe environment, while being given life back to children taken once had to beg a private hospi- Foundation’s and the Peter nurtured by kind ‘aunties’. out of squalor. Children danced, tal to take in a seriously ill teen- McVerry Trust by taking part As well as completely fund- laughed and went about their age girl. The next morning, she or sponsoring the event. All ing these two homes, the Cal- day happily, learning various decided to open a hospital to information can be found at cutta Run also covers the annual subjects. address this urgent issue. The www.calcuttarun.com.

LISTEN UP! Tune in to Gazette audio articles at Gazette.ie 14 NEWS March 2020 Law Society Gazette gazette.ie PUBLIC INTEREST ‘FUNDAMENTAL CONSIDERATION’ IN DPP DECISIONS n Director of Public Prosecu- (CPS) decided to clarify how it fully and decide whether there tions Claire Loftus has said that makes charging decisions after is enough evidence to put before decisions about whether to pros- being criticised for pressing the court. ecute or not “can be very diffi- ahead with a case against the late A jury, properly instructed by cult”, but doing the right thing is TV presenter Caroline Flack, a judge on the relevant law, has never easy. The DPP was speak- who died on 15 February. to be convinced beyond a rea- ing at a Law Society parchment Last December, the 40-year- sonable doubt that a person is ceremony at Blackhall Place on old host of the reality TV show guilty. It is not enough for them 13 February. Love Island was charged with to think that the accused is prob- “My office has a lot of power, assault after allegedly attacking ably guilty. and that brings a lot of respon- her boyfriend at her home. Flack The guidelines state: “The sibility,” she said. “I know a bit pleaded not guilty, and a trial was Office of the DPP will also give about making decisions that are due to take place shortly. Her careful consideration to any not necessarily popular, whether boyfriend had not supported the request by a victim that proceed- that is to prosecute or not to prosecution. ings be discontinued. It must be prosecute. They can be very dif- The CPS posted a detailed borne in mind, however, that Deceased TV presenter Caroline ficult decisions, but doing the explanation of how it decides Flack – CPS decision to prosecute the expressed wishes of victims right thing was never going to whether or not to charge an indi- has proved controversial may not coincide with the pub- be easy. vidual with a criminal offence. lic interest and, in such cases, “But I am secure in the knowl- It said it had to review every fundamental consideration. particularly where there is other edge that I make those decisions case referred by the police, and “A prosecution should be ini- evidence implicating the accused without fear or favour, and that applied the same two-stage test tiated or continued, subject to person or where the gravity of is how you, as solicitors, should to every decision: does the evi- the available evidence disclosing the alleged offence requires it, proceed,” the DPP told the dence provide a realistic prospect a prima facie case, if it is in the the public interest may require audience. She added that solici- of conviction; and is it in the public interest, and not other- the continuation of a prosecu- tors were held to a higher stan- public interest to prosecute? wise,” the October 2016 guide- tion, despite the victim’s wish dard of conduct than the general In Ireland, guidelines for pros- lines state. that it would be discontinued.” public. ecutors from the Office of the When gardaí complete an The Office of the DPP is Her comments were made DPP state that, in making a deci- investigation, they send a file to totally independent of Govern- during the week when Britain’s sion as to whether to prosecute the Office of the DPP. The pros- ment, and is not overseen by any Crown Prosecution Service or not, the public interest is the ecutor must read the file care- minister or body. O’REGAN APPOINTED CCBE’S NOTICE – RULE OF LAW ADVISOR SBA n The Council of Bars and Law O’Regan is a highly expe- Societies of Europe (CCBE) rienced expert on rule-of-law ANNUAL has appointed Attracta O’Regan issues. She has been an expert (solicitor and head of Law Soci- advisor for over 12 years to GENERAL ety Professional Training), as its high-profile international rule- MEETING rule of law advisor. of-law NGOs and has delivered Attracta’s role will be to ensure numerous initiatives interna- n Notice is hereby given that the implementation of objectives tionally. the 156th annual general meet- cited in the CCBE statutes, to Her main task will be to pro- ing of the Solicitors’ Benevolent reinforce and strengthen the vide expert advice to the CCBE Association will be held at the Law work of the CCBE on issues presidency and the standing Society, Blackhall Place, Dublin 7, related to defence of the rule of committee on rule-of-law issues. on Monday 20 April at 12.30pm. law, and to ensure monitoring The role will include develop- It will consider the annual report and coordinated contribution to ing a draft a rule-of-law strategic and accounts for the year ended 30 the work and priorities of EU plan, and recommending pos- November 2019, elect directors, institutions, agencies and other sible activities to strengthen the and deal with other matters appro- relevant stakeholders. Attracta O’Regan rule of law in Europe. priate to a general meeting. gazette.ie Law Society Gazette March 2020 NEWS 15 BUSINESS OF WELLBEING SUMMIT OUTLINES BENEFITS FOR BUSINESSES n While the benefits of imple- • Share experiences from other menting a wellbeing programme jurisdictions and hear from for employees may appear self- industry experts during an evident, organisations do not interactive panel discussion on necessarily consider the benefits the business case for wellbeing that wellbeing programmes can – and why it makes good busi- have on their business and profit ness sense to invest in employ- margins. ees’ wellbeing and mental However, evidence clearly health, indicates that the cost of poor • Showcase guidance for best- mental health in the workplace practice in supporting wellbe- is substantial. In Britain, recent ing in the workplace, research (see Mental Health and • Engage participants in the pro- Employers: Refreshing the Case cess of designing and agreeing for Investment, Deloitte, January upon a professional wellbeing 2020) has revealed that the cost charter, and of mental ill-health to employ- the Irish economy at least €8.2 Society in collaboration with • Conclude with an interactive ers amounts to Stg£45 billion per billion annually. Law Society Finuas Skillnet, will reflective wellbeing session year. These costs are made up of Following this logic, the return take place on 23 April 2020 for focused on personal support. absence costs, presenteeism (the on investment of workplace firms and professionals who wish loss of productivity that occurs mental-health interventions has to explore this further. It will The summit will take place at when employees come to work, been shown to be overwhelm- look at why it makes good busi- the Law Society on Thursday 23 but function at less than full ingly high. By investing in the ness sense to invest in employees’ April from 9.30am to 4.15pm. capacity due to ill health), and mental health of staff, law firms mental health and wellbeing, and Claim six ‘management and turnover. have the potential to reduce will offer an evidence base for professional development skills’ Given that Ireland has one absenteeism, improve productiv- transformation and change. hours towards your 2020 CPD of the highest rates of mental- ity, increase engagement, reduce In more detail, the Business of requirement. health illness in Europe (it ranks errors, improve overall job sat- Wellbeing Summit will: To find out more and to make joint third out of the 36 countries isfaction, and ultimately attract • Explore what employers a booking, visit www.lawsociety. surveyed in the annual OECD and retain the best talent. The should be doing to prevent, ie/wellbeingsummit or, if you’d Health at a Glance: Europe 2018 average return on investment manage and deal with employ- prefer to book by post, you may report), it is estimated that the amounts to 4.2:1 (Mental Health ees who are suffering from download the booking form from relative cost of mental ill-health and Employers: A Case for Invest- alleged work-related stress, the same page. to Irish employers is just as high ment, Monitor Deloitte, October what the legal position is, and If you have additional queries, as in Britain. More broadly, the 2017). what the legal/business impli- contact the Law Society Finuas same OECD report has revealed The Business of Wellbeing cations are if it is not managed Skillnet team at finuasskillnet@ that mental-health problems cost Summit, organised by the Law correctly, lawsociety.ie.

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ENDANGERED LAWYERS THE EARLY BIRD ADIL MELÉNDEZ MÁRQUEZ, COLUMBIA GETS THE WORM

Based in Cartagena, a beauti- reported to the police. They ful city on Columbia’s Caribbean were directly linked to his work coast, Adil Meléndez Márquez is as a lawyer representing alleged a prominent human-rights law- perpetrators who wish to testify yer. He coordinates the National before the Special Jurisdiction Movement for Human Rights for Peace, part of the Colombian n The Law Society is encourag- practitioner down the street in Afro-Columbian Communi- transitional justice framework, ing entrepreneurs and start-ups from you is a small business ties (CIMMARON). He joined and tell their side of the story. across Ireland to make sure they owner, as well as a legal expert. the Movement for the Victims He is receiving protection by get the right advice from the They are rooted in the local busi- of State Crimes in 2005, and in the authorities at the request of beginning, to help plan for short ness community, as well as being 2006 was provided with pro- the Inter-American Commission and long-term success. uniquely plugged-in to a local, tective measures by the Inter- on Human Rights, but this protec- And one of the most important national and international net- American Commission on Human tion is not keeping up with the decisions to make when starting work of fellow, highly qualified Rights, surviving threats to level of threat, and is only avail- a business is which type of legal legal experts. No start-up chal- his life and three assassination able in Cartagena – not in rural structure to use. The decisions lenge is too big or too small for attempts in the period since. He areas where the risks are higher. made at the very start of the life your local solicitor.” was involved in the successful At one point, he was provided of a business can have an impact Solicitors can also advise prosecution of high-level officials with a bullet-proof car, but this on every aspect of its future. across all other areas of the busi- for corruption in his home munici- was withdrawn over a year ago. “We cannot stress enough the ness, including tax, employment, pality of San Onofre. He has had bodyguards assigned importance of getting the right GDPR and more. Conflict-related violence has to him. He recently received advice at an early stage,” says Teri “It’s also worth remembering displaced more than 8.1 million help from Dublin-based Frontline Kelly (director of representation that your local solicitor’s firm Colombians, out of a popula- Defenders to enable him to bet- and member services). “Differ- was once a start-up business tion of 49 million, since 1985, ter physically secure his house ent structures suit different types itself,” Kelly adds. according to government fig- and office. He reports being of businesses. A small business In 2019, the Law Society ures. And it continues: around followed, and believes that his can choose to be structured as launched a strategic plan to sup- 33,000 people were displaced in phone data is leaked, allowing a sole trader, for example,” she port and develop the more than the first six months of 2019. The paramilitary groups to anticipate points out. 2,000 firms in Ireland that have government’s implementation of and track his movements, and A sole-trader business is an five or fewer solicitors. land restitution under the 2011 further increase the risk to his life. uncomplicated structure, where More information on this ini- Victims Law continues to move The Office of the UN High the liability of the business is tiative is available at www.law slowly. The law was enacted to Commissioner for Human Rights attached to one person. The society.ie/businesshub. restore millions of hectares of has documented the killing of 41 benefits include less paperwork land that were left behind by, or human-rights defenders between and less regulatory compliance. stolen from, internally displaced January and late July 2019. The The trade-off, however, is an ADDENDUM Colombians during the conflict. huge influx of Venezuelan refu- increased personal liability for n In last month’s Gazette, we Adil has particularly focused gees over the past two years claims or debts. inadvertently omitted the full on two displaced communities in (over 1.5 million) is putting fur- “To get this and all the other title of Dr Grania Clarke, who his region, working on land-res- ther pressure on the state and critical elements right, we always authored the ‘Only the lonely’ titution cases. They are threat- the administration of justice. recommend seeking the expert article (p44). We are happy to ened by paramilitary groups advice of your local solicitor,” point out that Dr Clarke is a clin- representing other interests. He Alma Clissmann is a member of she says. ical and counselling psychologist recently received more threats the Law Society’s Human Rights “It’s important to remember a family systemic psychothera- by phone, which he promptly Committee. that the small law firm or sole pist and supervisor. gazette.ie Law Society Gazette March 2020 NEWS 17 23% REJECTION RATE FOR PRA ‘FIRST REGISTRATION’ APPLICATIONS n The Property Registration priority for solicitors’ clients, the 2 applications for the registration Authority (PRA) says that the PRA says, as the appropriate date of documentary title. rejection rate for applications for of registration will be the date of To further aid practitioners in first registration cases lodged with settling, rather than the date of preparing applications, the fol- it in 2019 was 23%. In addition, lodgement. lowing list sets out some of the a significant number of further most common errors in applica- cases required rulings or queries Re-lodging applications tions lodged: to be raised, and re-raised – sev- Upon re-lodgement, an applica- • Affidavit in Form 1, 2, 5 or 6 eral times – before the application tion will only be rejected again if incorrectly drafted and/or jurat could proceed towards comple- the rulings originally raised have incomplete, tion. not been satisfied, or if rulings • Form 17 is not properly com- Michael Clarke According to Michael Clarke arise in respect of deeds or docu- pleted and/or is not signed by (deputy registrar of the PRA), resources to the area, 2019 saw ments not lodged with the origi- an individual solicitor, applications for first registration a 28% increase in the number nal application. • Fees not lodged or insufficient lodged with the authority, where of cases completed on foot of an Michael Clarke says this will fees lodged, title is not certified and examina- examination of title. An additional help improve the expected pro- • Revenue Stamp Certificate tion of the title is required, can increase is expected in 2020. cessing time for first registration (documentary title) or CAT sometimes take a considerable and section 49 applications by: certificate (possession cases) time to complete. Change of practice • Freeing up the significant staff not lodged, In 2020, the authority aims to resources currently dealing • Searches not lodged, Adverse possession cases improve overall processing times with arrears maintenance, and • No application map lodged This can also be said of applica- by changing its practice on the • The fact that the lodging solici- or map lodged is not Land tions under section 49 of the Regis- rejection of first registration and tor will have all deeds and doc- Registry compliant, tration of Title Act 1964 for adverse section 49 cases that are not in uments to hand when satisfying • Necessary deeds or documents possession of registered land. order for registration. any rulings raised. required for registration have “The primary reason for this is the Rather than retain and query not been lodged (for example, general low standard of applica- these applications, as previ- Many solicitors do not retain cop- original title deeds, deed of tions lodged,” Clarke said. ously, from 1 February 2020, ies of documents lodged to the appointment of receiver, grant Reducing the arrears of first- these applications will instead be PRA, so the new practice means of administration), registration casework is a key stra- rejected upon initial examination. that having these documents • Deeds on title omitted/errors tegic goal in the PRA’s Integrity Applications for first registration returned to the solicitor will aid in deeds lodged, and Innovation Statement of Strategy in Forms 1, 2 or 5 and section 49 the process of satisfying rulings. • Supporting documents not 2019-2021, in support of its remit applications in Form 6 of the Land Full details of the change lodged, for example, deed of to extend title registration. Registration Rules 2012, will be may be found at www.prai.ie. appointment of receiver, and Following a restructuring of given a full examination, and all Also available on the website are • Insufficient detail provided in the examination-of-title process, rulings will be raised in the rejec- instructional videos to assist in the paragraph 2 (Form 5 or 6 pos- and the dedication of increased tion letter. There will be no loss of preparation of Form 1 and Form session cases).

LISTEN UP! TuneTune inin toto GazetteGazette audioaudio articlesarticles atat Gazette.ieGazette.ie 18 NEWS March 2020 Law Society Gazette gazette.ie SOCIETY STAFF ON THE CREST OF THE ‘GREEN WAVE’ WITH ECO TASK FORCE n Law Society staff are going and recycling so that they are green with the launch of an eco- more eco-friendly. friendly task force that aims to • Integrate environmental sus- reduce waste, conserve energy and tainability in the staff wellness promote biodiversity. The devel- programme. opment complements the Society’s • Devise a policy for increasing existing eco-friendly programme, contributions to carbon offset- but is specifically aimed at inspir- ting. ing staff members and Law School trainees to play their part. In the long term, the task force Interest has been growing sig- is reviewing energy usage, with nificantly in improving waste man- the aim of becoming carbon neu- agement, biodiversity and sustain- tral in time. It is seeking to work ability in recent years, and staff with other representative and have been keen to ‘catch the green educational bodies to share experi- The eco-friendly task force: Emily Rockwood, Michelle Lynch, Fergal Mawe, wave’. Rosemarie Hayden, Carmel Kelly and Sandra Smith ences, lessons and ideas. As a third- The task force has been in level educational institution, the place since May 2019 and follows • Education seminars on recy- • A book-swap area in Vanilla Society is also working with An on from the work of a previous task cling – did you know that plac- Café for staff and trainees. Taisce to implement a ‘green cam- force (which came into existence in ing one non-recyclable item pus’ programme – a seven-step ini- 2009). It has agreed a vision for into a recycling bin can result The task force’s medium-term tiative that will be driven by staff what an eco-friendly workplace in contamination of that bin’s projects include: and students to raise awareness of should look like. The task force total contents? • Research into how the Society environmental issues, implement has been investigating and imple- • Planting native, bee-friendly can further improve on biodi- improvements, and develop a Soci- menting the removal of single-use flowers and bulbs to provide versity. This may include rewil- ety green charter that will assist it plastics, offering loyalty incen- an improved habitat for native ding an area of the grounds, in reducing its ecological footprint. tives in the café for reusable cups, bees, birds and insects, which in permaculture options, and The aim is to lead by example the provision of electric charg- turn positively impacts on bio- offering allotments to comple- in order to inspire staff, stu- ing points for electric cars in the diversity, ment the greenhouse. dents, members and visitors to car park, and the installation of a • Grey-water project in conjunc- • Green-event management, do likewise in their workplaces, greenhouse and apiary comprising tion with Dublin City Council, including review of materials, at home, and in their local two bee hives in the back garden. and bottled water, food, packaging, communities. The group has produced a green paper outlining its initial short, medium and long-term objectives, IS THERE A DOCTOR IN THE HOUSE? with the full backing of the Soci- Cork-based solicitor Shane considered in the process. ety’s senior management team. McCarthy has been conferred The thesis also included an All departments are now repre- with a Doctorate in Law. Shane overview of the sentencing pro- sented on the task force, includ- took seven years to complete his cess. The major focus, however, ing a Law School representative, research, which examines parole concerned risk – its meaning, how so that trainees can also take part. in Ireland. He balanced his stud- it is calculated, and the impact Currently, 10% of PPC train- ies with numerous other commit- that the assessment of risk has on ees have indicated an interest in ments, including being a member the parole process. becoming active volunteers. of the Law Society’s Council, Shane described the work Some of its initial organisation- chair of the Society’s Human involved as all-consuming, but wide projects include: Rights and Equality Committee says he was lucky to have a huge Dr Shane McCarthy and his wife Sinéad • Tackling food waste through (till November 2019), a member interest in the topic. education and review of food of the Parole Board, running a The doctoral paper, entitled “The biggest task was not in orders for meetings, busy practice, not to mention his Balancing Justice and Risk, exam- writing the thesis, but in apply- • Wider use of compost and recy- family responsibilities towards his ined how parole decisions are ing the appropriate discipline cling bins, wife Sinéad McNamara (who is a reached, and how the views of required to keep the whole • Printer default to double-sided, solicitor and Sheriff for County various stakeholders, includ- research project on track,” he told mono printing, Cork) and their four children. ing offenders and victims, are the Gazette. gazette.ie Law Society Gazette March 2020 NEWS 19 REPORTED MISTREATMENT OF SAUDI ARABIAN LAWYER WALEED ABU AL-KHAIR n Waleed Abu al-Khair (40) was reports suggest that his sister is featured as the first ‘endangered no longer permitted to bring him lawyer’ in the Gazette in Septem- medication for his diabetes, or ber 2018, writes Alma Clissmann. appropriate food, and that he is Up till April 2014, when he was not getting the regular check-ups imprisoned, he was a leading indicated by his condition. advocate for many fellow citizens His conviction has twice been who transgressed the repressive the subject of an investigation regime in Saudi Arabia. He was by the UN Working Group on also a reliable source of informa- Arbitrary Detention (WGAD). tion on human rights issues in The first was in 2015, when the the country, writing and publish- WGAD directed Saudi Arabia ing locally and abroad. to immediately release him, He was sentenced to 15 years concluding that his arrest was imprisonment for “terrorism re- unlawful, having been ordered lated crimes”, created by a new without compliance with any law during his trial, including: law, and that his right to a fair • Disobeying the ruler and seek- trial had been so impaired by ing to remove his legitimacy, the detention and deprivation of • Insulting the local judiciary and counsel that release was the only questioning the integrity of option. judges, Waleed Abu al-Khair In 2018, the WGAD again • Setting up an unlicensed organ- directed Saudi Arabia to release isation, was moved to solitary confine- to recant and agree to abstain him, this time after reviewing all • Harming the reputation of the ment and deprived of books. from human rights activities. aspects of the arrest, prosecution, state by communicating with In protest, he went on hunger During his imprisonment, he charges, trial, sentencing and international organisations, and strike. The Gulf Centre for has been subjected to additional appeal. In a carefully reasoned • Preparing, storing and sending Human Rights reported that, on punishments prohibited by inter- opinion, dated 4 July 2018, the information that harms public 9 January, he was moved from national law, including mistreat- WGAD concluded that the order. the maximum security Dhaban ment, denial of medical care and charges were illegitimate, the prison to hospital in Jeddah be- attention (including special diet), specialised criminal court was Further, a travel ban of 15 years cause his health had deteriorated refusal of visits, and access to not sufficiently independent to following his imprisonment and dramatically. family members. deliver a valid determination, a fine of around €48,000 were This recent escalation in mis- Waleed suffers from type- and that his detention was in imposed. treatment is part of a pattern of two diabetes and a chronic contravention of numerous arti- Amnesty International report- pressure being exerted by the colon condition, both of which cles of the Universal Declaration of ed that, on 26 November, he authorities to get Abu al-Khair require special diets. Credible Human Rights.

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If you wI sh to discuss settlement of any eligible claim, please contact McCann FitzGerald (DFH/RJB) on 01 829 0000 or email [email protected]. gazette.ie Law Society Gazette March 2020 Letters COMMENT 21 DO WE REALLY NEED ‘DEAR SIRS’? From: Michael Monahan, solicitor, 47 John Street, Sligo ity law firms in Britain are scrapping the use of ‘dear sirs’ in their letters Cin an effort to shake off the sec- tor’s fusty image. Would it be time for us to do the same? It appears that there may be suitable alternatives, such as ‘dear colleague’ or ‘dear counsel’. In an era when there are more women than men practising as solicitors in Ireland and, indeed, in the year when we have a lady president, would this be the from a previous century? matters just to omit it from the would take this suggestion on, time to move on and drop this We have to ask: do we really start of a letter? and give us some guidance going form of address, which comes need it at all, and does it simplify Perhaps our Council members into the new decade. CLIENT INSIGHT – THE BENEFITS OF AN IN-HOUSE SECONDMENT From: Dan McNamara, McCann work would now cover a variety pick up the phone to a client. the opportunity to meet and get FitzGerald, Sir John Rogerson’s of legal fields; however, I prob- I discovered that a significant to know people from all areas Quay, Dublin 2 ably didn’t fully appreciate at the part of providing quality legal within the client’s business – n August 2017, I was a newly time just how varied my second- services to clients means being from investor relations to sales, qualified associate with ment experience would be. responsive and being able to manufacturing, finance, and IT. McCann FitzGerald solici- My work touched on a wide effectively communicate points Apart from giving my role as in- Itors when I was offered the range of legal areas, includ- of law in a concise and practical house counsel in the business opportunity to spend three ing finance, employment law, manner. Most of the time, the more context, it meant that, months on secondment with one company law, corporate gover- client is looking for a practical by the end of my secondment, of our clients. This turned out to nance and intellectual property. answer to what might be a com- I had a good overview of how be an invaluable experience for I feel like I left with a new set of plex problem. My secondment the business operated and func- me, as I gained an understand- skills in different legal areas and now informs every interaction I tioned, and meant that any legal ing of what it was like to work became used to moving between have with a client, and this fresh advice I provided to the client as an in-house counsel in a large different areas of law during the perspective should serve me well in the future as external coun- organisation, and to be on the course of my working day. I also in my career. Understanding sel would inevitably be more receiving end of legal advice gained a solid understanding of that legal advice is not a stand- tailored and useful. services from outside counsel. It how legal advice and legal work alone product, but something I would encourage any solici- also gave me a fresh perspective is relevant to, and touches upon, that forms part of a business’s tor who is given a secondment on client needs and expectations every aspect of a business. wider performance and objec- opportunity to take it. It turned when engaging external counsel. Gaining an insight into what tives is something I now always out to be an invaluable experi- One of the aspects I enjoyed a client expects from its out- bear in mind. ence for me, and also benefited most about my secondment was side counsel was probably the As legal service providers, we both my firm and the client, the variety of the work that I was most valuable takeaway from often deal with only a small num- making it a win-win result involved in. Like most lawyers my secondment. Understand- ber of people within a client’s for all. in private practice, at the time ing what the client requires organisation and, as a result, our I was developing my knowledge and expects when they decide knowledge of the detail, breadth Dan is currently participating in a in a specific field (in my case, to engage external counsel was and scale of a business organisa- 12-month foreign associate attor- corporate transactional work). I an important lesson I learned, tion can sometimes be quite lim- ney programme with US law firm knew that going on secondment and is something I keep in mind ited. One of the key benefits of Cravath, Swaine and Moore LLP would mean that my day-to-day whenever I send an email or my secondment was that I had in New York. 22 COMMENT Viewpoint March 2020 Law Society Gazette gazette.ie

A BOY NAMED SUE If suing a hospital, it is now clear that a plaintiff must identify distinct negligence against the hospital, in addition to any findings against a private consultant. Sarah Reid takes your pulse

SARAH REID IS A PRACTISING BARRISTER, AUTHOR AND LECTURER IN MEDICAL LAW

laintiffs in this jurisdic- without first ascertaining that that regard. Further, the plead- tion are often criticised there were reasonable grounds ings that issue will have to reflect for suing ‘everyone’, for so doing. the distinct claims being made Ppresumably on the basis that This view was expanded on against each defendant if they their case only needs to stick to in Mangan, when the Court of are to be lawfully maintained one party. However, two recent Appeal upheld the decision to against each party. cases – Hunt v Gormley & Ors dismiss a medical negligence Having established that dis- ([2019] IEHC 316) and Mangan action against two of the three tinct allegations must lie against (a minor) v Dockery & Ors ([2014] defendants in the case, on the a hospital, as distinct from a IEHC 477) – have condemned basis that the plaintiff did not doctor, and in circumstances this practice. Indeed, plaintiffs possess independent medical where private consultants have who continue to adopt a scatter- evidence supporting his claim been routinely regarded as inde- gun approach to selecting defen- against those defendants. pendent contractors, recent dants will be exposed, not only to More recently, in Hunt v developments in Britain are

judicial criticism, but potential Gormley & Ors, Mr Justice Bar- worth noting, where they have PIC: SHUTTERSTOCK costs orders against them. rett held: “The court does not expanded the law on vicarious Further, if suing a hospital, it see that a defence can be entered liability as it applies to doctors in is now clear that a plaintiff must by the second and third-named private practice. PLAINTIFFS identify, by way of expert report, defendants where it is relevant WHO CONTINUE distinct negligence as against the to the substance of that defence British developments hospital, in addition to any find- whether there is a report which In 2017, Ian Paterson, a British TO ADOPT A ings in respect of a private con- specifically criticises treatment surgeon, was convicted of crimi- sultant. provided by the second-/third- nally wounding patients and SCATTERGUN named defendant as opposed to inducing them to undergo often APPROACH Considered pleadings the first-named defendant; the unnecessary treatment for breast It is well established that, in solution to this impasse is firmly cancer, from which he derived TO SELECTING order to instigate a claim in pro- in the plaintiff’s hands.” personal profit. DEFENDANTS fessional negligence against a The impact of these cases has Though his private patients medical practitioner, the plaintiff meant that plaintiff solicitors and ought not to have had a claim WILL BE EXPOSED, must possess confirmation – by barristers must carefully con- in law against the hospital, Spire way of an expert report – that the sider their approach, and be sat- UK nonetheless agreed to con- NOT ONLY actions of the doctor constituted isfied that separate and distinct tribute Stg £27.2 million towards TO JUDICIAL negligence and fell below the grounds of negligence lie against a compensation fund for his standard of care expected. This each defendant they are pursing. patients, on the basis that “bet- CRITICISM, BUT stems from the decision of Barr In practical terms, this means ter clinical governance in the J inn Reidy v The National Mater- ensuring that the expert com- private hospitals where Mr Pat- POTENTIAL COSTS nity Hospital ([1997] IEHC 143), missioned to write a report is erson practised might have led to ORDERS AGAINST who held that it was irresponsi- instructed to comment on the action being taken sooner”. On ble, and an abuse of process, for a actions of each defendant and the 4 February 2020, the indepen- THEM plaintiff to instigate proceedings care afforded to the plaintiff in dent inquiry into his practises gazette.ie Law Society Gazette March 2020 Viewpoint COMMENT 23 PIC: SHUTTERSTOCK

found serious failings in clinical sexually assaulted some employ- • By engaging the employee IT IS PERHAPS governance on the part of the ees, and those employees success- to carry on the activity, the private hospital, and “a culture fully sued Barclays for the actions employer will have created the NOTEWORTHY of avoidance and denial”, which of the doctor. It is a significant risk of the tort being commit- THAT THE PRIMARY pervaded the system. decision, and identifies five crite- ted by the employee, and Though the settlement nei- ria held to be indicative of vicari- • The employee will, to a INSURERS OF IRISH ther admits nor establishes liabil- ous liability: greater or lesser degree, have DOCTORS ARE ity for hospitals in similar situa- • The defendant is more likely been under the control of the tions, it does raise the question to have the means to com- employer. BRITISH-BASED of potential liability for medi- pensate the victim, and can cal staff who are, on the face of be expected to have insured On appeal to the Court of Appeal, ORGANISATIONS, things, independent contractors. against that liability, Lord McCoombe affirmed MEANING This issue was recently consid- • The negligent activity had the decision, adding: “It seems ered in Various Claimants v Barclays been committed as a result of clear to me that, adopting the THAT BRITISH Bank Plc ([2017] EWHC 1929; activity taken by the tortfeasor approach of the Supreme Court, [2018] EWCA Civ 1670), where on behalf of the employer, there will indeed be cases of PRECEDENTS WILL a doctor, engaged by the defen- • The tortfeasor’s activity is independent contractors where LOOM LARGE IN dant to conduct pre-employment likely to be part of the business vicarious liability will be estab- medical assessment of employees, activity of the defendant, lished. Changes in the structures THEIR MINDS FOR PRINTING YOUR Dublin Dispute Book (paper or hardback) OR Magazine Resolution Centre Ireland’s Premier Dispute Resolution Venue Contact TURNERS Printing Co. Ltd • Arbitrations for a competitive price. • Mediations SECRETS OF THE BALLOT BOX

HOW THE IRISH VOTING SYSTEM LAW SOCIETY GAZETTE • Vol 114 No 2 SYSTEM VOTING IRISH THE HOW

SECRETS OF THE BALLOT BOX BALLOT THE OF SECRETS • Conciliations Making waves Keeping the connection In-house independence LAW SOCIETY GAZETTE • Vol 113 No 8 Irish elections tend to be dramatic and exciting,REALLY largely due to the LAW SOCIETY GAZETTE • Vol 113 No 3 LAW SOCIETY GAZETTE • Vol 113 No 3 The Gazette speaks to Katie Technology both contributes A recent judgment of the useComingFuture of our shock of complexage proportional representationTumblingCherry bomb down system, prettyWORKS wellMoore’sSmall is beautifultreat CaddenComing on the of rewards age of life to,Tumbling and diminishes, down our sense SmallECJGazette provides is beautiful clarification on LegalLegal‘Predictive educationeducation analytics’ and TheThe‘Second destructiondestruction chance’ of ofinsolvency thethe LawTheLaw SocietySociety supportsupportspeaks to the outsideuniquethe furtherlegal to practice Ireland.commodification The system is alsoof wellbeing characterized by numerous incomingin-house managing independence partner throughoutthroughout thethe Solicitors’Solicitors’solutions for BuildingsBuildings businesses andand servicesservices addressaddress thethe needsneeds SECRETS OF referenda.lifetimelifetimeof the business ofof lawyerslawyers This of lawwork explores preciselythetheand Four Fourindividuals how CourtsCourts this inin 19221922 system works by of smallertop firm practices Arthur Cox reference to elections and referenda fought between 1981 and 2016. It explores important issues such as: THE BALLOT BOX • Consultations „ Why transfers, despite the emphasis on them, particularly by the Everything you need to run a law firm media, are relatively ineffective 3 HOW THE IRISH VOTING SYSTEM Everything you need to run a law firm „ The different patterns which apply in different sized areas 5 3 „ Which of the bigger multi seat areas give rise to a disproportionate € REALLY LAW SOCIETY € 4.00 MARCH 2020 LAW SOCIETY 4.00€4.00OCTOBERAPRIL 2019 number of anomalousLAW SOCIETY results APRIL 2019 ga ette 5 WORKS • Seminars „ Dunne/0012/AJC/2018Dunne/0012/AJC/2018 DunneDunne gaThe relative ease of winning half the seatsette in a constituency or area DetailsDetails && CorrespondenceCorrespondence CalendarCalendar && TasksTasks FinancialFinancial SummarySummary Time Time && FeesFees OfficeOffice Accounting Accounting ClientClient FundsFunds RegistersRegisters with an even number of seats 2

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115001750017 SearchSearch correspondence correspondence 1 REALLY ININ PROGRESSPROGRESS „ MarianMarian HughesHughes DETAILSDETAILS ININ PROGRESSPROGRESS COCORRESRRESPPONDENCEONDENCE SearchSearch The mysteries of the tally BARDELL Martha ApplicationApplication toto changechange thethe registerregister JLJL MMarar 23,23, 20182018 BARDELL Martha BuyerBuyer MrMr JamesJames DunneDunne && MrsMrs Agnes Agnes DunneDunne StaffStaff ApplicationApplication toto changechange thethe purchasepurchase datedate LEALEAPP 9:419:41 A AMM 100%100% 1 MatterMatter TypeType PurchasePurchase ofof 1414 BeechBeech ParkPark Avenue Avenue Letter to Solicitors confirming instructionsMarianMarianJL HughesHughes Mar 23, 2018 Created:Created: 23/03/2018,23/03/2018, 10:2310:23 AM AM Letter to Solicitors confirming instructionsDDunneunne JL Mar 23, 2018 From: Marian Hughes „ ComplianceCompliance DateDate AML AML checkschecks completecomplete 08/03/2018.08/03/2018. 00012/AJC/2018012/AJC/2018 From: Marian Hughes How it is possible to top the poll yet not get elected (and vice DunneDunne -- PurchasePurchase fromfrom BrennanBrennan BuyerBuyer DETAILSDETAILS CORRESPONDENCECORRESPONDENCE CALENDARJLCALENDARJL MarMar 23,23, 20182018 4 SellerSeller TrantersTranters LLPLLP -- Ref:Ref: 67877/Brennan67877/Brennan [email protected]@cullenlaw.ie MrMr JamesJames DunneDunne && MrsMrs Agnes Agnes DunneDunne LetterLetter toto SolicitorsSolicitors confirmationconfirmation Search Created: 23/03/2018, 11:13 AM GRADGRIND Thomas SellersSellers SolicitorSolicitor DrDr BrianBrian BrennanBrennan Search Created: 23/03/2018, 11:13 AM • Training Scanned Property Plans JL versa) Scanned Property Plans MatterMatterJL TypeType MarMar 21,21, 20182018 From:From: MarianMarian HughesHughes ELECTED Mr Michael Cullen ApplicationApplication to to change change the the register register 4 Mr Michael Cullen Purchase of 14 Beech Park Avenue GRADGRIND Thomas Created:Created: 23/03/2018, 23/03/2018, 10:23AM 10:23AMPurchase of 14 Beech Park Avenue DunneDunne -- DocumentationDocumentationFrom:From: requiredrequired Marian Marian Hughes Hughes forfor salesale Dunne - Purchase from Brennan PropertyProperty 1414 BeechBeech ParkPark Avenue, Avenue, Foxrock,Foxrock, DublinDublin 1818 JLJL MarMar 21,21, 20182018 Dunne - Purchase from Brennan [email protected]@cullenlaw.ie ComplianceCompliance Created:Created: 23/03/2018,23/03/2018, 11:0011:00 AM AM LetterLetter to to Solicitors Solicitors confirming confirming ins... ins... „ LandLand RegistryRegistry LandLand RegistryRegistry (Dublin)(Dublin) Date AML checks complete: 01/03/20... From: Marian Hughes Created:Created: 23/03/2018, 23/03/2018, 11:13AM 11:13AMDate AML checks complete: 01/03/20... From: Marian Hughes 11 Why contentious referenda are won and lost on the East Coast SurveySurvey ReportReport -- 1414 BeechBeech ParkPark Avenue Avenue JLJL Mar 20, 2018

From:From: Marian Marian Hughes Hughes Mar 20, 2018 ConveyancingConveyancing DetailsDetails Price:Price: €695,000.00€695,000.00 NICKLEBY Kate

Seller Seller Scanned Property Plans WORKS Dunne - Purchase from Brennan Scanned Property Plans EstateEstate Agent Agent GreenfoldGreenfold EstatesEstates -- Ref:Ref: 1414 BeechBeech Park...Park... Completion StatementDunne - Purchase from BrennanDr BrianJLJL BrennanMar 19, 2018 Completion StatementCreated:Created: 23/03/2018, 23/03/2018, 11:00AM 11:00AMDr Brian BrennanMar 19, 2018 Created:Created: 21/03/2018,21/03/2018, 10:4310:43 AM AM From: Marian Hughes ELECTED MrMr BrianBrian BrooksBrooks From: Marian Hughes 11 From:From: MarianMarian HughesHughes NICKLEBY Kate SellersSellers SolicitorSolicitor TelephoneTelephone withwith ClientClient -- advisedadvised ofof possib...possib... JLJL MarMar 18,18, 20182018 LenderLender HSBCHSBC BankBank -- Ref:Ref: Dunne/87876566/...Dunne/87876566/... ScannedScanned Property Property Plans Plans Tranters LLP - Ref: 67877/Brennan Created: 21/03/2018, 10:43AMTranters LLP - Ref: 67877/Brennan Created: 21/03/2018, 10:43AM DunneDunne -- DocumentationDocumentation requiredrequired OCTOBER 2019 BankBank DetailsDetails AccountAccount Number:Number: 5679157256791572 From:From: Marian Marian Hughes Hughes Letter to Lender sending Report on Title JL Created:Created: 21/03/2018,21/03/2018, 11:2211:22 AM AM Letter to Lender sending Report on Title PropertyPropertyJL MarMar 16,16, 20182018 This book is an essential guide for anyone who wants to know how the ELECTED From:From: MarianMarian HughesHughes Local Authority City of Dublin Council 1 APRIL 2019 JARNDYCE John Local Authority City of Dublin Council Dunne - Documentation required... 1 APRIL 2019 Dunne - Documentation required...1414 BeechBeech ParkPark Avenue, Avenue, Foxrock,Foxrock, DublinDublin 1818 March 2020 PurchasePurchase fromfrom BrennanBrennanCreated:Created: 21/03/2018, 21/03/2018, 11:22AM 11:22AM Local Authority Details District: Dublin From: Marian Hughes JLJL Mar 15, 2018 Local Authority Details District: Dublin [email protected]@mail.ie From: Marian Hughes 11 Mar 15, 2018 Survey Report - 14 Beech Park Avenue LandLand RegistryRegistry Survey Report - 14 Beech Park Avenue system works in practice. It is indispensable reading for aspiring TDs and Created:Created: 20/03/2018,20/03/2018, 2:502:50 PMPM SurveySurvey Report Report - - 14 14 Beech BeechLandLand Park... Park... RegistryRegistry (Dublin)(Dublin) ELECTED Created:Created: 20/03/2018, 20/03/2018, 2:50PM 2:50PM From:From: MarianMarian HughesHughes JARNDYCE John From:From: Marian Marian Hughes Hughes councillors who want to understand the system and get themselves SNODGRASS Augustus ELECTED elected. ELECTED SNODGRASS Augustus ELECTED STEERFORTH James

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Clients include: Law Society Gazette, Law Society of Ireland, Institution of Occupational Safety and Health, Dublin Solicitors Bar Association, Alltech Craft Brews and Food gazette.ie Law Society Gazette March 2020 Viewpoint COMMENT 25 of employment, and of contracts self-employed independent con- in mind is the fact that hospitals area. Moreover, in the medical for the provisions of services, are tractor can be full of complexity in this jurisdiction rely on, and context, it is perhaps notewor- widespread. Operations intrinsic and of evidential pitfalls.” benefit from, revenue streams thy that the primary insurers of to a business enterprise are rou- generated by private clinicians Irish doctors are British-based tinely performed by independent What next? working within their facility. organisations, meaning that Brit- contractors, over long periods, While the argument can be Further, those same hospitals ish precedents will loom large in accompanied by precise obliga- made that the distinct setting of impose working conditions, of their minds. tions and high levels of control… an occupational health referral sorts, as well as in-house prac- If the facts were right, a case “It is clearly understandable is not comparable to the wider tices and policies, which must be could be made against a hospi- that a ‘bright line’ test, such as private consultant setting, there adhered to by consultants. tal for the actions of a private is said to be the status of inde- could be room within the above Against this backdrop, a clini- consultant, on the basis that it pendent contractor, would make criteria to allege a close connec- cian’s independence becomes less is illogical to maintain the dis- easier the conduct of business tion between the parties that obvious, and one could argue that tinction of private contractor for parties and their insurers. would justify such a finding. hospitals ought to be liable in any when there exists a close con- However, ease of business can- The Court of Appeal refer- event, as they have a non-delega- nection and form of control not displace or circumvent the enced the modern employment ble duty to ensure patient safety between the parties rendering it principles now established by the reality of independent contrac- once admitted to their facility. ‘akin to employment’. Equally, Supreme Court … As has now tors and, in the Irish healthcare What remains to be seen is governance and oversight sys- become tolerably clear from the setting, the commercial reality of whether the Irish courts will fol- tems must fall to be considered fields of employment and taxa- the relationship between doctors low their British counterparts if those very systems fail to spot tion law, establishing whether and hospitals must fall to be con- when presented with the oppor- clinical deficiencies, resulting in an individual is an employee or a sidered. Specifically to be borne tunity to expand the law in this injury to patients. 26 COMMENT Viewpoint March 2020 Law Society Gazette gazette.ie

WAR OF

INDEPENDENCE PIC: SHUTTERSTOCK/GAZETTE STUDIO The recent judgment of the ECJ in Uniwersytet Wrocławski and Poland v REA provides important clarification on the independence of in-house lawyers. Patrick Ambrose assesses its significance

PATRICK AMBROSE IS CHIEF LEGAL OFFICER AT DLL IRELAND

he concept of ‘independ- tion of the lawyer to the dictates out the task of defending the cli- ence’ in the context of in- of the university when practising ent, while acting in that client’s house lawyers has caused his profession through his own interests to the greatest possible Tmuch confusion, particularly in firm, the General Court found extent. light of the decisions in AM&S that, even if there was no for- In that regard, the CJEU found Europe and Akzo Nobel, which are mal employment relationship, that lawyers who would not be not always understood as apply- the existence of the contract for considered sufficiently indepen- ing only in the context of the lecturing services meant that the dent were: European Commission’s inves- lawyer did not satisfy the condi- • Those who had been granted tigative powers in competition tion of independence required by extensive administrative and law proceedings. Thankfully, the statute of the Court of Justice financial powers that place his the Court of Justice of the Euro- of the European Union. or her function at a high execu- pean Union (CJEU) has pro- tive level within the legal per- vided some welcome clarity on In the distance son he or she is representing, ALTHOUGH THE the concept of independence in In a judgment delivered on 4 Feb- such that his or her status as DECISION IN Uniwersytet Wrocławski. ruary 2020, the CJEU set aside an independent third party is By way of background, a Polish the order of the General Court. compromised, UNIWERSYTET university brought a case against The CJEU specified that the • Those who hold a high-level the EU’s executive agency for objective of representation by a management position within WROCŁAWSKI research in a dispute over money lawyer referred to in article 19 of the legal person he or she is IS STRICTLY owed to the agency (joined Cases the statute is, above all, to protect representing, or C-515/17 P and C-561/17 P). and defend the principal’s inter- • Those who hold shares in, or ABOUT THE The lawyer representing the ests acting in full independence are the president of the board INTERPRETATION university had been an employee “to ensure that legal persons are of administration of the com- of the university for over 20 years defended by a representative who pany he or she is representing. OF THE STATUTE, but, some months before the case, is sufficiently distant from the legal he had left the employment of person which he or she repre- On the facts of the case before IT CLEARLY the university and established a sents”. it, the CJEU expressed the view REBUTS THE professional practice, and it was In that context, the lawyer’s that, not only was the lawyer not through this professional practice duty of independence is to be defending the interests of the uni- VIEW THAT IN- that the university’s case was sub- understood, not as the lack of any versity in the context of a hierar- mitted. connection whatsoever between chical relationship, he was simply HOUSE COUNSEL The lawyer continued to lec- the lawyer and his or her client, connected to the university by a CAN NEVER BE ture at the university under a civil but the lack of connections that contract for the provision of lec- law contract and, although the have a manifestly detrimental turing services, which could not INDEPENDENT contract implied no subordina- effect on the capacity to carry be regarded as having a manifestly gazette.ie Law Society Gazette March 2020 Viewpoint COMMENT 27 PIC: SHUTTERSTOCK/GAZETTE STUDIO

detrimental effect on his capacity to provide, in the overriding cally meet the criteria of third to defend his client’s interests. interests of justice, such legal parties are actually dependent While not legally binding, the assistance as the client needs”, on the client in economic or opinion of the advocate general in acting therefore primarily in other terms, such that they this matter (delivered on 24 Sep- the public, general interest of should be treated as part of that tember 2019) includes some very justice, with that interest pre- legal person. interesting observations, not only vailing over the private one, in the context of article 19 of the this premise is no longer true. Significance statute, but also in the context of In reality, legal representation Although the decision in Uniw- legal professional privilege and is a service provided primarily, ersytet Wrocławski is strictly about THE OPINION the concept of ‘independent law- not in the overriding interests the interpretation of the statute, ALSO yer’ generally. of justice, but in the interests of it clearly rebuts the view that in- • The concept of independence a particular client. house counsel can never be inde- SUGGESTS THAT that was provided by the CJEU • For the purposes of article 19 of pendent. Instead, the CJEU has in the AM&S Europe and Akzo the statute, the issue of a lawyer clearly expressed the view that QUESTIONS OF Nobel cases was only intended being employed by a legal per- challenges to the independence of ‘INDEPENDENCE’ to define the scope of docu- son should be assessed on the a lawyer should be limited to cer- ments covered by legal profes- basis of whether they meet the tain relationships where conflicts MAY NOT BE sional privilege in the context criteria of a ‘third-party’, which of interest are more likely to arise, CONFINED TO IN- of the European Commission’s is required for a lawyer to rep- and should not be pre-emptively investigative powers in com- resent the client in front of the assumed by a court. HOUSE LAWYERS, petition law proceedings and, CJEU, rather than under the Separately, the opinion chal- in applying that interpretation heading of ‘independence’, as, lenges the perception of a lawyer’s AND THIS IS to a broad array of other sce- while an in-house lawyer is not role that was at the heart of CJEU SOMETHING narios, the connection with the a ‘third party’ for the purposes decisions in AM&S and Akzo, and original rationale and purpose of representation in front of the which may be persuasive in future THAT PRIVATE of the concept of independence CJEU, this does not mean that CJEU cases regarding legal pro- was lost. the in-house lawyer may not be fessional privilege in competition PRACTITIONERS • While in AM&S and AKZO, independent. In particular, the law. SHOULD TAKE the CJEU provided, invok- advocate general acknowledges The opinion also suggests that ing the common traditions of that certain in-house lawyers questions of independence may NOTE OF WHERE the member states, that the might enjoy a considerable not be confined to in-house law- requirement of ‘independence’ degree of independence, such yers – and this is something that THEY RELY SOLELY, is justified by the role of the that they qualify as third par- private practitioners should take OR MAINLY, ON A lawyer “as a collaborator of ties in substantive terms, while note of where they rely solely, or the court, who is called upon some individuals that techni- mainly, on a single client. SINGLE CLIENT 28 COVER STORY March 2020 Law Society Gazette gazette.ie PIC: SHUTTERSTOCK gazette.ie Law Society Gazette March 2020 COVER STORY 29

I DON’T WANT TO MISS A THING How does the everyday use of video-recording sit with data protection legislation in both a personal and commercial context? Eoin Cannon has it under surveillance

EOIN CANNON IS A BARRISTER SPECIALISING IN DATA PROTECTION 30 COVER STORY March 2020 Law Society Gazette gazette.ie

ur modern society is subject to a huge amount of monitoring by video. This can be done by either CCTV systems or simply by someone taking a video on their phone. Data protection law in this jurisdiction is regulated by the General Data Protection Regulation (GDPR), which is implemented in this jurisdiction by the Data Protection Act 2018. Article 4 of the GDPR defines personal data as any information related to an ‘identified or identifiable natural person’ so, in the context of CCTV, if you are identifiable from the images, then those images can be regarded as personal data and the GDPR and Data Protection Act will apply. Dublin City Council, in seeking to dissuade illegal dumpers in Dublin city centre, used partially blocked-out images of people dumping rubbish in a particular area. The individuals were identifiable however and, while Oa stranger would not recognise the perpetrator, they would themselves, and most likely their neighbours would too. The Data Protection Commission contacted the council with their concerns in relation to AT A GLANCE the project. n The increasingly high quality of affordable A controller of personal data is regarded as the legal entity that recording technologies leaves us with a more controls the purposes and means of processing personal data. The complex technical and legal environment data controller may take the form of an individual or a company. Data n Not all video-recording and CCTV falls within the controllers are subject to a number of statutory obligations in relation to parameters of what is legal security, retention, minimisation, and so on. n Video-recording, even in a personal capacity, may For video information, the most pertinent obligations are transparency now invoke certain obligations as a data controller as to the nature of the processing, and the right to access of any – in a commercial context, this is a certainty individuals filmed. Where a type of video-recording is likely to result gazette.ie Law Society Gazette March 2020 COVER STORY 31 PIC: SHUTTERSTOCK/GAZETTE STUDIO

TECHNOLOGIES SUCH AS DRONES, DASHCAMS, AND THE EASE WITH WHICH FOOTAGE CAN BE SHARED MEANS THAT THE PARAMETERS OF ‘PURELY PERSONAL OR HOUSEHOLD ACTIVITIES’ WILL OFTEN BE DETERMINED ON A CASE-BY-CASE BASIS in a high risk to the rights and freedoms This case related to an individual’s home gather personal data for that purpose under of natural persons, it may be necessary CCTV system, which recorded footage of section 41 of the same act. to undertake a data-protection impact his front garden. However, it also covered The use of CCTV as evidence is assessment. the path outside his home and some of his increasingly a feature of criminal neighbour’s property. The European Court of prosecutions in this jurisdiction. The recent Our house Justice found, given the latter coverage outside prosecution of the murder of Patricia There is a common misconception that GDPR of the personal property of Mr Rynes, that the O’Connor is an example. The CCTV system applies to all personal data. This is not true. domestic-use exemption did not apply. of a neighbour covered part of the property The ‘domestic use exemption’ applies to ‘purely of Mrs O’Connor and was used as evidence personal or household activities’, meaning that n this jurisdiction, gardaí have the right in the hearing. While a strict application of GDPR does not apply to your private daily life. to capture personal data as evidence for Rynes would indicate that such footage could The boundaries of the ‘domestic-use the purpose of an investigation under be excluded from a case due to it having no exemption’ are set out in what is known as the Isection 70 of the Data Protection Act 2018, legal basis, the Irish courts would appear to Rynes decision of the European Court of Justice. and a controller of personal data may hold or allow such footage in the criminal context. 32 COVER STORY March 2020 Law Society Gazette gazette.ie PIC: SHUTTERSTOCK

On the other hand, the continual recording of a neighbour’s private property may constitute FOCAL POINT harassment, which may be subject to criminal prosecution. THE CAMERA EYE Facial recognition video image may be subject to a data- Cars One of the features of CCTV footage in the subject access request. In this instance, The increasingly high quality of affordable future will be the use of facial-recognition the data subject (that is, the individual technologies leaves us with a more complex technology. This is already widely used in in the video) may request a copy of the technical environment to which the law is certain countries, such as China. With facial- video in which they feature. To comply, applied. Technologies such as drones, dashcams, recognition technology, a CCTV system the data controller must send back and the ease with which footage can be shared may be in a position to automatically ID an the video that features the individual means that the parameters of ‘purely personal individual upon capturing their image. While, requester, but which does not feature or household activities’ will often be determined in a narrow sense, this may be regarded as any other person. on a case-by-case basis. quite useful for certain aspects of security, The use of dashcams has been addressed facial recognition technology constitutes Community CCTV schemes by the Data Protection Commission. The biometric data and is, therefore, highly Under the Garda Síochána Act 2005, commission suggests the ‘potential implications’ restricted under GDPR. Further, the broader applicants may apply to their local in relation to dashcams for individuals using implications of widespread use of this authority for approval of a community them. Without being explicit, this would technology is part of an ongoing discussion. CCTV scheme. If this approval is appear to suggest that, in light of Rynes, if your The EU is currently debating whether to ban attained, the Garda Commissioner may dashcam is facing out onto the road, even if this its use in public places for a five-year period. grant an authorisation. The scheme will is for purely personal use, then you are likely a then be operated by the local authority, data controller as per GDPR, meaning that all Data-subject requests with the gardaí given access to the video statutory implications will apply. As a CCTV image may be regarded as a and some control as to the operation of In a commercial context, it is clearly the form of personal data, this means that a the CCTV. case that an owner of a dashcam system will definitely be regarded as a ‘controller’ of gazette.ie Law Society Gazette March 2020 COVER STORY 33

THE UPSHOT IS THAT THERE IS CLEARLY GOING TO BE A HUGE AMOUNT OF FUTURE LITIGATION REVOLVING AROUND THESE ISSUES AND THAT PEOPLE WHO CONTROL THE RECORDING NEED TO BE CLEARLY AWARE OF THE CONSEQUENCES personal data. The European Data Protection CCTV may be used for the purposes of was inappropriate content, and asked the Board has made the separate point that a staff-monitoring. However, this must not be sender why he had sent it. However, the video dashcam should only be recording at relevant regarded as ‘excessive processing’, and staff automatically downloaded, and the recipient times – that is, when driving. must be informed of the possible uses prior was later prosecuted for ‘possession’ of child In any public spaces, shops, cafés or to being recorded. In the Data Protection pornography. It is suggested that this would museums, it is now rare that CCTV is not Commission’s Case Study 7/2015, it was found constitute a worrying precedent if followed in in place, monitoring the individuals present. that CCTV in an employee canteen in a retail the future. This is usually for the purposes of security, store was ‘excessive processing’. Further, the which is perfectly legal once the data controller High Court has recently found that if CCTV Every breath you take complies with their obligations under GDPR is installed for the purposes of ensuring There is a huge amount of video-recording and – most importantly, that of transparency to the security and health and safety, footage from CCTV in place that we encounter on a daily individual recorded. Once the individual knows that system may not be used in the course of basis. Not all of it falls within the parameters of the recording, they may then invoke their any subsequent disciplinary process involving of what is legal. To undertake video-recording, right to access the video as a data subject. employees. If planning to install CCTV in such even in a personal capacity, may now invoke It therefore must be reasonably clear to any a context, it would be advisable to look into certain obligations as a data controller; in a individual that (a) recording is taking place, the necessity of undertaking a data-protection commercial context, this is a certainty. (b) the purpose of this recording, and (c) the impact assessment before doing so. The upshot is that there is clearly going to identity of the ‘data controller’ and any contact be a significant amount of future litigation information. The normal means of undertaking t has been a recent feature that certain revolving around these issues, and people who this is by the placement of appropriate signage information that has been held or shared control the recordings need to be clearly aware in the locus of the recording. for the purposes of litigation has been of the consequences that their actions (or, Ileaked to the press and published during or indeed, inactions) have in the context of their Video killed the radio star after proceedings. It must be clear that the legal obligations. As things stand, it would appear that if a user of legal basis for handling the personal data in a dashcam is determined a controller, whether many cases is the fact of the proceedings. a private individual or a company vehicle, all Any publishing or processing outside of that obligations of a controller would apply to them, function would constitute a possible breach LOOK IT UP and that similar information should be made of the data-protection rights of the individual CASES: available to an individual potentially filmed. involved. This may attach to video footage n František Ryneš v Úřad pro ochranu Where a dashcam is mounted on a car, this may – but similar rules apply to all personal data osobních údajů (ECJ, 11 December be done by way of signage on the vehicle. attained in this process. 2014, case C‑212/13) The practical application of such signage Sharing of video can also cause problems – to drones or other smaller video-recording the clear issue being that, once a video is shared LEGISLATION: n Data Protection Act 2018 technology may be more complex. The on a media platform, it is no longer private. n Garda Síochána Act 2005 obligation to undertake a data-protection However, there are other concerns also. n General Data Protection Regulation impact assessment may be a factor also. Recently, a woman was prosecuted for Outside of criminal investigations, there possession of child pornography in a situation are other common examples where video where she had been sent a video on WhatsApp LITERATURE: n Data Protection Commission, Case footage is used for a purpose that it was by a person she did not know well, watched Study 7/2015 not originally intended for. it in part, turned it off after seeing that it 34 PROFILE March 2020 Law Society Gazette gazette.ie

Tide is HIGH ALL PICS: MICHAEL MCLAUGHLIN gazette.ie Law Society Gazette March 2020 PROFILE 35

Mayo solicitor Katie Cadden describes the roller-coaster ride of her legal career, which has taken her from the fashion houses of Paris to membership of a State board and a seat on the RNLI Council. Mark McDermott pushes the boat out

MARK MCDERMOTT IS EDITOR OF THE LAW SOCIETY GAZETTE

hen Katie Cadden was carefully Push on the clock 16 years after Paris, arranging her school study notes and the fashionista would be handing in her in their folders, gearing up for the Louis Vuitton handbag and Manolo Blahnik Leaving Cert back in in 1998, she had shoes, exchanging them for a Helly Hansen absolutely no notion that, just five years Hi-Vis jacket and wellie boots. Such is the later, she would be landing her dream job roller-coaster ride of a legal career. alongside the general counsel for one of The Castlebar-based solicitor had Wthe top fashion houses in Europe. no background in law. “Absolutely, 36 PROFILE March 2020 Law Society Gazette gazette.ie

SUCCESS NOW STARTED TO LOOK A LITTLE BIT DIFFERENT TO ME, RATHER THAN STAYING ON THE TRADITIONAL LINEAR PATH WITHIN A LEGAL PRACTICE IN THE WEST OF IRELAND. MY HEAD HAD BEEN TURNED. I BECAME UTTERLY IMMERSED IN THE THEORY OF REGULATION AND CORPORATE GOVERNANCE

unequivocally none,” she says. “My mum is traditional law subjects. She studied the proficient in French. I was selected, so I an entrepreneur, my father was in hospitality, French legal system and European law, packed my bags and headed for Paris.” so there was no link to law at all. I went to through French. “It was a challenge, but it The luxury goods company has over 75 school in St Joseph’s Convent in Castlebar was incredible,” she says. houses, with one alone focusing on luxury from 1993 to ’98. I’d had a little bit of work She dropped many of the business-related and fashion goods. Katie was selected to experience with a family friend who’s a subjects in second year, deciding to focus on work in perfume and cosmetics, and worked legal practitioner in Castlebar. Of course, French and on contract and commercial law. closely with the general counsel and another everybody had the heady images of Ally France beckoned during her Erasmus year, partner on “some incredibly interesting McBeal, but I was very practical. I was where she opted to study law in Poitiers in projects”. For instance, she was involved ‘very applied’.” the southwest of France. in the negotiations for Christian Dior’s “They’ve a fantastic law faculty there. I sponsorship deal with actress Charlize he admits to being one of those girls knew, for me, it was going to be the best in Theron. A number of high-value commercial whose work was carefully organised terms of my subjects. So I continued with distribution agreements followed. into separate folders, complete with European law and French constitutional law. “This was the first time I had seen colouredS dividers and ‘yellow stickies’. When I finished in Poitier, I resolved that I corporate governance in practice, and “Yes, I love lists, I thrive on lists. I think would work in France at some stage.” to see codes of conduct developed,” says most lawyers do. Some have other strengths. Back in Galway, she completed her Katie. “I would have studied the theory in But the majority that I know would tend corporate law degree, alongside the LLB, Galway, but I’d never before been involved to be pretty organised – and it can be the leaving Galway with two degrees after four in drafting reports that factored in corporate difference between being a good and a great years. governance issues. To see this first-hand was lawyer sometimes, in terms of how you excellent experience.” approach your work.” The deal with Charlize As soon as she finished her Leaving Cert, “At the end of my LLB year, NUI Galway hile she didn’t get to meet she visited all of the law schools in Galway, had a very active placement programme,” Charlize in person, she was Dublin, Cork and Limerick to help her says Katie. “Professor Denis Driscoll delighted to have some input decide where she would go. worked very closely with a number of high- Winto the successful negotiation of the high- profile multinationals to place NUI Galway value commercial agreement, which led to Love affair students. Coming into my last term, he the actress being the face of Christian Dior’s “I could not get Galway out of my head. invited Madeleine Vendeuil-Denise, the J’Adore fragrance. I was particularly drawn to the corporate General Counsel for Louis Vuitton Moet “It taught me how you needed to be able law degree at the time, because you had the Hennessy (LVMH), to give a lecture in to adapt and react, and to ensure that you option of taking business subjects, while Galway. She was contemplating taking on were protecting the house’s interests, as well being able to specialise in legal French.” her first Irish intern.” as ensuring that everything was above board Why the love affair with French? A number of students were shortlisted to in terms of the agreement,” Katie says. “I am particularly good at languages, and meet with Vendeuil-Denise for a possible Her term with LVMH was initially for French in particular. I took French and placement of three months. three months – she ended up staying for a German to Leaving Cert honours standard “When we spoke, Madeleine was year. “They were keen for me to remain, but and did very well in them.” particularly fond of the University of Blackhall Place called!” she jokes. “The door Galway gave her the opportunity to try Poitiers, and was very interested in the was left open for me if I changed my mind different subjects in first year, including subject range I’d selected when I was in and decided to return. economics and accounting alongside the Poitiers. She needed somebody who was “I felt drawn, however, to Blackhall Place. gazette.ie Law Society Gazette March 2020 PROFILE 37

I WANTED TO KNOW MORE ABOUT THIS ORGANISATION THAT INSTILLED SUCH A SENSE OF ENTHUSIASM AND PASSION. I VERY MUCH WANTED TO BE PART OF THIS ORGANISATION, AND TO HELP IN WHATEVER WAY I COULD

It was the ‘done thing’ at the time. I was period and replied that it was being offered the presence of pyrite in the infill beneath following the traditional linear path that a job with Lavelle Coleman in Dublin. their homes. She acted for hundreds of I had concluded was the way to go. So I Sadly, that didn’t happen for others of my affected homeowners. completed my PPC1 and my traineeship.” colleagues, who left law and never returned “That was a particularly complex case, after their training contract. That’s just the not necessarily in terms of the technical Apocalypse now way it was at the time.” aspects of law, but more in terms of the She qualified as a solicitor in 2008 – “the Katie worked in the law firm’s litigation people skills, the emotional intelligence, apocalyptic 2008, when the world as we department, specifically on multiparty and the communication skills required to know it ended”. litigation. Most of her time was taken up deal with clients in a particularly devastating “I was once asked what my main with representing home-owners in North and vulnerable position. That was a steep accomplishment was following my training Dublin, whose homes had been affected by learning curve for me.” 38 PROFILE March 2020 Law Society Gazette gazette.ie

Was she happy with the outcome of the case? “The case ran for about 166 days at the time so, as part of that settlement, a trust fund of €25.5 million was established for the homeowners. That saw their homes repaired, but with a limited contribution towards floor coverings, accommodation and legal costs. Their homes, however, were going to be repaired and properly certified. In the circumstances, in the economic climate, I think it was the best outcome.”

Into the west She stayed with Lavelle Coleman until the end of 2010. A major life change followed with her marriage to Mark Cadden. “We had been going out for nine years and were newly married. I was living in Dublin. He was living in Mayo, and it was very difficult to ignore the draw of wanting to return and start a new life there. We agreed that the best decision would be for me to move west. “My preference was to remain in practice, but I had underestimated how devastating the crash had been on the local legal economy, in terms of opportunities and roles. It didn’t deter me, however, because I was quickly taken on as a project manager for a legal conference being the traditional linear path within a legal been interested in some volunteering activity hosted by Mayo County Council. I worked practice in the West of Ireland. My head previously, but not at this level, and not in with them and the Western Development had been turned. I became utterly immersed the space where I could give practical advice, Commission for a year. It was an inaugural in the theory of regulation and corporate or advise on forthcoming legal issues. At legal event in Westport, which was governance, and the critical thinking on this time, in 2014, I was also appointed by organised with the Brehon Law Society these core subjects.” the Government as a board member of the in the US. Where her new skillset would take her, Charities Regulatory Authority, so there was “My role as project manager was to attract she wasn’t quite sure. She had received a a lot going on.” the right speakers, to have the right themes, number of offers around 2013, but these Following the birth of her daughter the right sponsors, and ensure attendance. would have meant relocating to Dublin – Willow in 2015, after an eight-month And it was a great success.” just at the time when she was expecting hiatus, she went back to work in 2016. her first child. Life was busy between a young family, trip back to Galway led to a chance legal practice and honouring board conversation about the university’s Epiphany commitments. Katie found herself again LLM (Public Law) course. “I don’t “Baby Reuben arrived, and I still hadn’t questioning what success looked like, Aknow why, but all of sudden my ears pricked completely shaken the notion of traditional and whether the linear path was for her. up. It was a no-brainer for me. I applied that success. I joked with a friend recently: ‘God, Following a great degree of reflection, evening to pursue it, full-time. I was very aren’t we like recovering solicitors!’ You she took the brave decision to step off the resolute that if the opportunities weren’t think that there’s nothing else. You really career travellator to take time out. presenting themselves in terms of getting don’t believe there’s anything else you can do “The significant decision for me was back into a practice, then I would use the – and that’s a fallacy. It’s just not true.” whether I was brave enough to stop time to further my knowledge. Despite her epiphany, she returned to and reflect on what I truly wanted. My “I was looking for some way to contribute general practice in Swinford in Co Mayo, education through undergraduate and to or advance particular policies or agendas with P O’Connor & Son, solicitors. “I postgraduate levels, and throughout my in a meaningful way that would be fulfilling very much enjoyed working with Pat and career, had been a constant hive of activity for me. That, possibly, was the start of the the team. They’re a super, super bunch of and intense studying, examinations and change in my perception of the meaning of people. I really enjoyed working in litigation working. This was the first time that I had success. Success now started to look a little and in charity law, and ended up advising stopped or was about to stop.” bit different to me, rather than staying on charities on a wide range of issues. I had She describes it as “terrifying, but I was gazette.ie Law Society Gazette March 2020 PROFILE 39

I LOVE LISTS, I THRIVE ON LISTS. I THINK MOST LAWYERS DO. SOME HAVE OTHER STRENGTHS. BUT THE MAJORITY THAT I KNOW WOULD TEND TO BE PRETTY ORGANISED – AND IT CAN BE THE DIFFERENCE BETWEEN BEING A GOOD AND A GREAT LAWYER SOMETIMES, IN TERMS OF HOW YOU APPROACH YOUR WORK confident in my abilities” – so that the “An individual who knew of my strengths years of saving lives at sea in in 2024. In terror was fleeting. She ‘downed tools’ for in governance and my regulatory back- this time, RNLI crews and lifeguards have 12 months, though continued to serve on ground approached me to see if would saved countless lives, while influencing, the board of the Charities Regulator and to consider joining the Irish council. I supervising and educating communities. lecture. “During that time, I identified the subsequently met with RNLI trustee David RNLI international teams are doing great issues that were important to me, in order Delamer. I couldn’t believe his passion for work with like-minded organisations to help to optimise my sabbatical and my time.” the organisation – I’ve never encountered tackle drowning in communities at risk all She realised that she was looking at a career anything like it, and I’ve worked with quite a around the world.” that would encompass multiple interests. number of charitable organisations!” Is she enjoying her legal career at present? “I would encourage everyone to step back, “I’m very, very happy. Look at the insofar as they can within their current day- e really piqued my interest. opportunities that I’ve had. I am now to-day situation, to think about these things. I wanted to know more developing my own specialist offering, and Sit down and be very honest with yourself about the organisation that collaborating on some very interesting about what your interests might be – where “Hsaves lives at sea and instills such a sense of projects. Many organisations want to be you see yourself in five years. Start having enthusiasm and passion. I very much wanted better governed and go from good to conversations with other people in your to be part of this unique organisation, and to great – and I can help with that. And I areas of interest. A conversation stimulates help in whatever way I could. would say to all female solicitors to think change, but it doesn’t have to be as dramatic “I hadn’t envisaged participating on the seriously about getting involved on boards as pressing the ‘stop’ button!” RNLI Council (UK), but I was requested of directors. It’s proven that diverse boards to strongly consider it. There was a desire make better decisions. That’s the reality. The call of the sea for the diversity of thought and the skillset I I would encourage female solicitors to How did she go from serving on the board could offer. register with StateBoards.ie, and to look of the Charities Regulator to joining the “I feel that I’ve joined the RNLI at a to their professional networks and other council of the RNLI for Ireland and Britain? very important time. It will celebrate 200 organisations that are non-legal in nature, such as the Institute of Directors. “I’ve learned from my involvement with the Charities Regulator and the RNLI that SLICE OF LIFE it’s vitally important to be confident in your skills, particularly in your communication n Current book n Most influential person Exit West, by Mohsin Hamid. My mother – she’s a business entrepreneur, skills – and especially your ability to listen extremely astute, and has great emotional and to challenge an executive when that is required.” n Current earworm intelligence. Emma Gannon’s Ctrl Alt Delete and a podcast Does she find that tough? “No, not personally, because I’ve had time by executive coach, Marie Forleo. I’m bereft n Top of your bucket list after finishing Slow Burn: Watergate, and Slow A trip to St Petersburg – I just want to see it. to practise it. That wouldn’t come naturally Burn: The Clinton Impeachment. to a lot of solicitors – female or male. Confidence in your ability is very important. n Favourite alternative job? And don’t be afraid of complex problems, n Favourite band Editor of Vogue magazine – Anna U2 Wintour’s job. because there’s always a solution to every problem.” 40 PERSONAL INJURIES March 2020 Law Society Gazette gazette.ie

AT A GLANCE

n A 2019 audit analysed and dissected 680 vocational assessments of PI cases n It evaluated medical and psychological factors, educational backgrounds, social behaviours, attitudes, values, work skills and abilities n It has unearthed rich data about those who pursue claims for loss of earnings and the types of injuries involved

An audit of vocational assessments is revealing about those who bring claims for loss of earnings in Irish personal injury cases. Elva Breen processes the data

ELVA BREEN IS A STATE REGISTERED OCCUPATIONAL THERAPIST WITH AN MSC IN NEUROREHABILITATION

he recently published book A Guide to Expert Witness Evidence (Tottenham et al, 2019) is an excellent guide for expert witnesses. It clearly defines an expert as “a person who has a special skill or knowledge in a particular field. A reliable expert must both acquire the special skill or knowledge and be able to demonstrate it” (p5). Vocational assessors are expert witnesses who play a vital role in personal injury (PI) cases, ensuring that claimants receive a proper hearing with regard to the impact of their injuries on their livelihoods and quality of life. Only claimants who are pursuing a claim for loss of earnings or vocational opportunity will meet with a vocational assessor. The role of the vocational assessor is to perform a comprehensive assessment and to identify whether the claimant is fit to return to their pre-injury occupation following their personal injury. This assessment involves an evaluation of medical and psychological factors, educational background, social behaviours, attitudes, values, work skills and abilities. DATA CAPTURE gazette.ie Law Society Gazette March 2020 PERSONAL INJURIES 41 PIC: SHUTTERSTOCK DATA VOCATIONAL ASSESSORS ARE EXPERT WITNESSES WHO PLAY A VITAL ROLE IN PERSONAL INJURY CASES, ENSURING THAT CAPTURE CLAIMANTS RECEIVE A PROPER HEARING 42 PERSONAL INJURIES March 2020 Law Society Gazette gazette.ie ALL GRAPHICS: PAUL HIGGINS If a return to their former job is not possible, then it is the vocational assessor’s role CAUSES OF PERSONAL INJURY CLAIMS to identify alternative jobs or further training that will be appropriate for the claimant. The vocational assessor also establishes the claimant’s post-injury earning potential – a vital determining factor in the resulting report. A practising vocational assessor should

hold professional qualifications in the area - of rehabilitation and should have experience working directly with individuals who have acquired physical, cognitive and psychological disabilities.

High standards It is advisable that a vocational assessor be a qualified occupational therapist registered with CORU, the State’s multi-profession health regulator. CORU’s role is to protect is important that solicitors are fully aware In 2019, PIAB’s annual conference the public by promoting high standards of of the qualifications the assessor holds. reported that an estimated 50,000 Using the ICD 10 as a guideline, what are the most Medication at time of assessment professional conduct,common education, injuries? training and Solicitors should satisfy themselves that personal injury claims are made annually

competence through statutory registration. their expert is regulated and answerable in PainIreland. management Approximately 1,80051. claims9% When briefing a vocational assessor, it to a governing body. areAnti-depressants/anti-anxiety settled through the courts, but14.0% the • 481 of claimants had injuries that fell under the ‘ majority/sleeping are tablets settled directly. There is lack Using the ICD 10M asclassification: a guideline, diseases of the’ musculoskeleta what l are the most Medication at time of assessment common injuries?system and connective tissue eg back and neck pain: of Bothtransparency in relation to the8.7% overall Diagnosed with PTSD 4.6% UsingUsing the the ICD ICD 10 10 as as a a guideline, guideline,• U nderwhat what category: are injareury tothe headthe most most number of claims,MedicationMedication compensation at at time time values, of of assessment assessment USING THE ICD AS A GUIDELINE, WHAT ARE THE Pain management 51.9% commoncommonUsing injuries? theinjuries? ICD 10 as a guideline, what are the most and associatedMedication costs. at time of assessment MOSTcommon COMMON injuries? INJURIES?• M25 (other joint disorder) Anti-depressants/anti-anxiety 14.0% • 481 of claimants had injuries that fell under the ‘ Who is making a claim? PainPain management management/sleeping tablets 51.51.9%9% M classification: diseases of the musculoskeletal ’ Pain management 51.9% • M54 (dorsalgia/back pain)system and connective tissue eg back and neck pain: 8.7% Using the ICD 10 as a guideline,481 of claimants what had injuriesare the that most fell under the M classification:The mean age ofMedication claimants is Anti-depressants/anti-anxiety40 Anti-depressants/anti-anxiety atyears time of assessmentBoth 14.0%14.0% ••diseases 481 481 of of claimants coflaimants the musculoskeletal‘ had‘ had injuries injuries that that system fell fell under underand tconnectivehe the tissue, common injuries? Anti-depressants/anti-anxiety/sleeping/sleeping tablets tabletsDiagnosed with PTSD14.0% •for example, 481 of claimants back •and‘ had neck injuriesU painnder that categ fello ry:under inju rythe to head 4.6% •M Mclassification: classification:M54.4 (lumbago dis dise withaseseases sciatica) of of the’ the’ musculoskeleta musculoskeletal l 59% are male and 41% are female/sleeping tablets systemsystemM classification:and and connective connective dis tissue asestissue of e e gthe’ e gba bamusculoskeletackck and and neck neck pain: l pain: Pain managementBothBoth 51.9% 8.7%8.7% system and connective tissue eg back and neck pain: Both 8.7% 6.2% Anti-depressants/anti-anxiety 14.0% •••UnderUnder cM54.5ateg categ o(lowry:ory: backinj inju rypain)u ryto t ohead head DiagnosedDiagnosed with with PTSD PTSD 4.4.6%6% • 481 of claimants•‘ had injuriesM25 that (other fell under joint the disorder) 53.5% are married • Under category: injury to head /sleeping tabletsDiagnosed with PTSD 4.6% M classification: diseases of the’ musculoskeletal Who is making a claim? system and connective tissue eg back and neck pain: Both 8.7% • M25.5 (pain in joint) 82.8% of claimants were Irish, 8.4% were Polish, and 1.4% were English • M54 (dorsalgia/back pain) Diagnosed with PTSD 4.6% •••M25M25 (other U(othernder jointcateg joint odisorder)ry: disorder) injury to head The mean age of claimants is years • M25 (other joint disorder) 40 • M79 (soft tissue disorder) WhoWho is isis making makingmaking a aclaim? claim? • M25 (other joint• disorder)M54.4 (lumbago with sciatica) ••M54M54 (dorsalgia/back (dorsalgia/back pain) pain) 59% are male and 41% are female ResearchUsing carried out the by the ICD Personal• 10 Injuries M54as a(dorsalgia/back Commission guideline, (PIC) pain) and what independent are theWho most is making a claim? TheTheThe mean mean mean ageage age of of claimants claimants is is 40Medication is40 40 years years years at time of assessment consultants has highlighted a lack of consistent and detailed industry-wide coding common injuries?• M54 (dorsalgia/back pain) Has injury impacted on leisure? The mean age of claimants is 40 years of injury data. Accordingly, the PIC recommends that •insurers andM54.5 other (low relevant back pain) parties consider adopting• •the• sameM54.4 M54.4internationallyM54.4 (lumbago (lumbago (lumbago recognised with with with sciatica) sciatica) sciatica) injury coding system. 53.5% are married 59%59%59% are are are malemale male and and 41 41%%% areare are female femalePain female management 83.5% 51.9% • M54.4 (lumbago with sciatica) It is suggested that the appropriate system to be used is the World Health 59% are male and 41% are female Anti-depressants/anti-anxiety 14.0% Organisation's ICD-10 system. ICD-10 codes are alphanumeric• M25.5 codes used(pain byin joint) 1.8% • 481 of claimants‘ had injuries that fell under the 82.8% of claimants were Irish, 8.4% were Polish, and 1.4% were English doctors, health insurance• companies••M54.5M54.5, andM54.5 (lowpublic (low (lowback backhealth back pain) pain) agenciespain) across the world /sleeping tablets • M54.5 (low back pain)M classification: diseases of the’ musculoskeletal 14.7% 53.5% are53.5%53.5% 53.5%married areare are married married to represent diagnoses. Every disease, disorder, injury, infectionsystem, andand connectivesymptom tissue eg back and neck pain: Both 8.7% has its own ICD-10 code. • M79 (soft tissue disorder) • M25.5 (pain in joint) Diagnosed with PTSD •••M25.5M25.5M25.5 (pain (pain (pain in• injoint) injoint) joint)Under category: injury to head 82.8% of claimants were Irish, 8.4% were Polish, and 1.4% were English 4.6% 82.8%82.8%82.8% ofof of cclaimants laimantsclaimants w ere wereere Irish,Irish, Irish, 8.4% 8.4% 8.4% were were were Polish, Polish, Polish, and and and 1.4% 1.4% 1.4% were were were English English English Research carried out by the Personal Injuries Commission (PIC) and independent • M79 (soft tissue disorder) WHO IS MAKING A consultants has• highlightedM79 (soft a lack• tissue of disorder) consistentM25 (other joint and disorder) detailed industry-wide coding ••M79M79 (soft (soft tissue tissue disorder) disorder) Has injury impacted on leisure? Research carriedof injury out by data. the Personal Accordingly, Injuries theCommission PIC recommends (PIC) and independent that insurers and other relevant WhoCLAIM? is making a claim? Researchconsultants carried out hasparties by highlighted the consider Personal a lack adopting InjuriesofInjuries consistent Commission theCommission and same detailed internationally (PIC) industry-wide(PIC) and and independent independent recognised coding injury coding system. ResearchResearch carried carried out out by by the the Personal Personal Injuries Injuries Commission Commission• (PIC)M54 (PIC) (dorsalgia/back and and independent independent pain) Has injury impacted on leisure? 83.5% consultantsof injury has highlighteddata.It Accordingly,is suggested a lack the ofthatPIC consistent recommends the appropriate and that detailed insurers system and industry-wide to other be relevantused is coding the World Health The mean age of claimants isis 4040 years consultantsconsultants has hasparties highlighted highlighted consider adoptinga alack lack of the of consistent sameconsistent internationally and and detailed detailed recognised industry-wide industry-wide injury coding system. coding coding Has injury impacted on leisure? of injury data. Accordingly,Organisation's the PIC ICD-10 recommends system. that ICD-10 insurers codes and are other alphanumeric relevant codes used by HasHas injury injury impacted impacted83.5% on on leisure? leisure? 1.8% It is suggested that the appropriate system to be used is the World Health ofof injury injury data. data. Accordingly, Accordingly, the the PIC PIC recommends recommends that that• insurers insurersM54.4 and and (lumbago other other relevant withrelevant sciatica) parties considerOrganisation's adoptingdocto ICD-10rs the , system. health same ICD-10 insurance internationally codes companies are alphanumeric recognised, and codespublic injury used healthcoding by agencies system. across the world 59%59% areare malemale andand 41%41% are are1.8% femalefemale partiesparties consider consider adopting adopting the the same same internationally internationally recognised recognised injury injury coding coding system. system. 83.5% 14.7% It is suggesteddoctors ,that health tothe insurancerepresent appropriate companies diagnoses. system, and toEverypublic be healthuseddisease, isagencies the disorder, World across injury,Health the world infection , and symptom 14.7% 83.5%83.5% It Itis issuggested suggested that that the the appropriate appropriate system system to to be be used used is isthe the World World Health Health Organisation'sto represent ICD-10 hasdiagnoses. system. its own Every ICD-10ICD-10 disease, codescode. disorder, are injury,alphanumeric• infectionM54.5, and(lowcodes symptomback used pain) by 1.8% 53.5%53.5% areare marriedmarried Organisation'sOrganisation's hasICD-10 ICD-10 its own system. ICD-10system. code. ICD-10 ICD-10 codes codes are are alphanumeric alphanumeric codes codes used used by by 1.8%1.8% doctors, health insurance companies, and public health agencies across the world 14.7% doctodoctorstors, represent health, health insurance insurance diagnoses. companies companies Every disease,, and, and public disorder, public health health injury, agencies agenciesinfection across , across and symptom the the world world • M25.5 (pain in joint) 14.7%14.7% 82.8% of claimants were Irish, 8.4% were Polish, and 1.4% were English toto represent representhas its owndiagnoses. diagnoses. ICD-10 Everycode. Every disease, disease, disorder, disorder, injury, injury, infection infection, and, and symptom symptom 82.8% of claimants were Irish, 8.4% were Polish, and 14% were English hashas its its own own ICD-10 ICD-10 code. code. • M79 (soft tissue disorder)

Research carried out by the Personal Injuries Commission (PIC) and independent consultants has highlighted a lack of consistent and detailed industry-wide coding Has injury impacted on leisure? of injury data. Accordingly, the PIC recommends that insurers and other relevant parties consider adopting the same internationally recognised injury coding system. 83.5% It is suggested that the appropriate system to be used is the World Health Organisation's ICD-10 system. ICD-10 codes are alphanumeric codes used by 1.8% doctors, health insurance companies, and public health agencies across the world 14.7% to represent diagnoses. Every disease, disorder, injury, infection, and symptom has its own ICD-10 code. gazette.ie Law Society Gazette March 2020 PERSONAL INJURIES 43

APPROXIMATELY 1,800 CLAIMS ARE SETTLED THROUGH THE COURTS, BUT THE MAJORITY ARE SETTLED DIRECTLY. THERE IS LACK OF TRANSPARENCY IN RELATION TO THE OVERALL NUMBER OF CLAIMS, COMPENSATION VALUES, AND ASSOCIATED COSTS

In over a decade of performing vocational assessments as an expert DID CLAIMANTS WORK BEFORE THEIR INJURY AND occupational therapist, I have met WHAT KIND OF WORK DID THEY DO? hundreds of claimants. The purpose of this article is to share the statistical findings of a rigorous clinical audit I completed in 2019. For this audit, I analysed and dissected 680 vocational assessments. The findings provide rich data about the individuals pursuing claims for loss of earnings through the High Court, and the types of injuries involved.

Summary of results The mean age of claimants is 40 years, and the majority suffer from musculoskeletal injuries, such as dorsalgia (back pain) and/ or back pain that radiates into their legs (lumbago with sciatica). Post-traumatic stress disorder was diagnosed in 4.6% of individuals. HOW MANY CLAIMANTS RETURN TO WORK The data below shows that the most FOLLOWING THEIR PERSONAL INJURY? common type of injury is workplace related, with road-traffic accidents the second most frequent cause of injury.

Do claimants work? The following graphs demonstrate that more than 75% of people worked before their injury (either full or part-time), whereas over 50% are unemployed post injury.

Do ‘educated’ people take claims? The 2016 census reported that 42% of people in Ireland had a third-level (1.87%) qualification (that is, levels 6-10 in the National Framework of Qualifications). My audit demonstrates that individuals with a lower level of education are more 44 March 2020 Law Society Gazette gazette.ie WhatWhatWhat is is isthe the the education education educationPERSONAL level level level of of INJURIESof claimants? claimants? claimants?

likely to pursue a claim for loss of earnings. EDUCATION LEVEL OF CLAIMANTS Over 55% of claimants I met did not hold a

What is the education level of claimants?Highest HighestHighest level level level of of education of education education third-level qualification.

�� �Technical Technical Technical or orvoca or voca vocationaltionaltional 19.9%19.9%19.9% (N FO Level 4 or 5) What socio-economic group is most Highest(N FO(N level(N FO Leve FO ofLeve educationLevel 4 l o4lr 4o 5) ro 5)r 5) �� �Advanced Advanced Advanced certificate/completed certificate/completed certificate/completed 16.9%16.9%16.9% likely to pursue claims? � Technical or vocational 19.9% apprenticeshipapprenticeship(Napprenticeship FO Level 4 or 5) (NFO (NFO (NFO Le vLeel Lev el6)v el6) 6) The census looks at socio-economic �Leaving AdvancedLeavingLeaving Certificate certificate/completed Certificate Certificate or orequivalent or equivalent equivalent 16.9% 12.9%12.9%12.9% apprenticeship (NFO Level 6) groups and classifies the population (upper secondary) (upLeaving(uperp(uperp secondary) perCertificate secondary) secondary) or equivalent 12.9% (upper secondary) into one of ten categories, based on the �� �Ju niorJu Junior niorCertificate Certificate Certificate or oequivalent ro equivalentr equivalent 12.5%12.5%12.5% � Junior Certificate or equivalent 12.5% skill and educational attainment of their (low(l(lowower(lerow secondary)ersecondary)er secondary) secondary)

� Primary education 9.8% �� �Primary Primary Primary ed educ edationucucationation 9.8%9.8%9.8% current or former occupation. According � Ordinary bachelor degree or 8.2% �� �Or Ordinary nationalOrdinarydinary diplomabachelor bachelor bachelor (NFO degreeLevel degree 7)degree or or or 8.2%8.2%8.2% to the census, non-manual workers are the 5.4% � nationalHonournationalnationals bachelor diploma diploma degdiplomaree/ (N F(N O(NF OLevelFO Level Level 7) 7) 7) professional qualification (NFO Level 8) largest socio-economic group in Ireland, ��� �Ho PoHonour sHotgraduatenournours bachelors diploma bachelors bachelor o rdeg degree deg ree/deg ree/ ree/ 4.1% 5.4%5.4%5.4% (N FO Level 9) accounting for 20.9% of the population. �professional Doctorateprofessionalprofessional or hi gqherualification q (NFO ualificationqualification Level 10) (NFO (NFO (NFO Level0.1% Level Level 8) 8 ) 8) 4.1%4.1%4.1% This correlates with my findings, which ��� �Po NosPo tgraduatetPo rsepotgraduatestgraduaterted diploma diploma diploma or odegree ro degreer degree 10.0% (N FO(N(N FO Le FO velLe Level 9)vel 9) 9) demonstrate that non-manual workers are �� �Doctorate Doctorate Doctorate or orhi or ghiher higherg (herNFO (NFO (NFO Le vLeel Lev el10)v el10) 10) 0.1%0.1%0.1% the largest cohort of individuals pursuing a �� �No Not Norepot rtepo rrepotedrted rted 10.0%10.0%10.0% claim for loss of earnings (24.3%). The socio-economic classification of claimants was as follows: According to the census, the next largest The socio-economic classification of claimants was as follows: The socio-economic classification of claimants was as follows: socio-economic group is ‘employers and The socio-economic classification of claimants was as follows: The socio-economic classification of claimants was as follows: managers’, accounting for 15.44% of the population. However, the audit shows that SOCIO-ECONOMIC CLASSIFICATIONSocio-economic classification OF CLAIMANTS Socio-economic classification only 3.4% of this group make personal- The socio-economic classification of claimantsSocio-economic was as follows: classification 1111Socio-economic Non-manualNon-manual classification 24.3% 24.3% injury claims. 1111Socio-economic Non-manual(for(For example, example, administrators, administrators,classification cashiers, cashiers, 24.3% PIC: SHUTTERSTOCK Socio-economicseNon-manual(forcuri extyample, guards, administrators, sales classification assistants, cashiers, bank clerks) 24.3% 1111Socio-economic security guards, classification sales assistants, bank clerks) Lower professionals, making up 13.1% 1111 seNon-manual(forcuri extyample, guards, administrators, sales assistants, cashiers, bank clerks) 24.3% 1111 Manual skilled 22.1% 1111 seNon-manual(forcuri extyample, guards, administrators, sales assistants, cashiers, bank clerks) 24.3% 1111 Non-manual(forManual example, skilled builders, welders, toolmakers, 2224.3%.1% of the population, only gave rise to Socio-economicse(forManualcuri extyample, guards, administrators, skilled classificationsales assistants, cashiers, bank clerks) 22.1% 1111 printers,Non-manual(forManual example, chefs, skilled builders,administrators, forklift drivers, welders, cashiers, mechanics) toolmakers, 2224.3%.1% 1111 se(Forcurity example, guards, sales builders, assistants, bankwelders clerks) ,toolmakers, 11111111 seprinters,(forManual Non-manualcuri extyample, guchefs, ards,skilled builders,administrators, forklift sales as drivers, wesistants,lders, cashiers, mechanics) toobank24.3%lmakers, clerks) 22.1% 7.8% of the claims I dealt with. Higher seprinters,Semi-skilled printers,(forcuri extyample, guchefs, ards,administrators, chefs, forklift sales cashiers,asforklift drivers,sistants, mechanics) drivers, bank clerks) mechanics) 15.6% 1111 (forManual example, skilled builders, welders, toolmakers, 22.1% 1111 Manualsecurity guards, skilled sales assistants, bank clerks) 15.6%22.1% printers,Semi-skilled(for example, chefs, builders,prison forklift se drivers, rvicewelders, o fficers,mechanics) toolmakers, care 11111111 (forManual Manual example, skilled skilled builders, welders, too22lmakers,.1% 22.1% professionals account for 7.12% of the Irish printers,assistants,Semi-skilled(forSemi-skilled example, chefs, postal prison forklift workers, se drivers, rvice machine o fficers,mechanics) op careeratives) 15.6% 15.6% printers,(for(for e exxample, chefs, builders, builders, forklift welders, drivers, wetoolmakers,lders, mechanics) toolmakers, assistants,Semi-skilled(for(Forprinters, example, example,chefs, postal forklift prison drivers, workers, prisonse mechanics)rvice machine o servicefficers, op careeratives) officers, 15.6% care IIIIN/Aprinters,assistants, chefs, postal forklift workers, drivers, machine mechanics) operatives) 14.3% population, but only accounted for 1.9% IIIIN/ASemi-skilled(forassistants,Semi-skilled ex ample, prison postal service workers, officers,15.6% caremachine 14.3%15.6% operatives) An Central assistants,(for(for e example, postal prison prison se rviceworkers, osefficers,rvice caremachine o fficers, op careeratives) IIIIN/AUnskilledSemi-skilled(forassistants, ex ample, postal workers,prison machine service operatives) officers, care 14.3%15.6%8.2% of the claims in this audit. What is striking AnPhriomh-Oifig CentralStatistics 1111 assistants, postal workers, machine operatives) AnPhriomh-Oifig CentralStatistics 1111IIIIIIIIN/A Unskilledassistants,(forN/A ex ample, postal prisoncleaners, workers, service domestics, machine officers,14.3% op careeratives) 14.3%8.2% 14.3% Staidrimh OfficeAn Central 1111IIIIN/A Unskilledlabourers,assistants,(for ex ample, postalrefuse cleaners, collectors,workers, domestics, machine driver's opmate)eratives) 14.3%8.2% is that only 7.55% of the Irish population AnPhriomh-Oifig CentralStatisticsPhriomh-Oifig Statistics IIII1111N/A Unskilled 8.2% 14.3% Staidrimh Office IIII1111N/A Unskilledlabourers,(for(for e exx ample, refuse cleaners, cleaners, collectors,domestics, domestics, driver's mate) 14.3%8.2% 8.2% AnPhriomh-Oifig CentralStatisticsStaidrimh Office labourers,LowerUnskilledlabourers, refuse refuserofessional collectors, collectors, driver's mate) driver's mate) 7.8% StaidrimhAn CentralOffice 1111 Unskilled(for example,p cleaners, domestics, 8.2% are manual skilled workers, yet they 1111 UnskilledLower(ForLower example, rofessionalrofessional cleaners, domestics,7.8% 7.8%8.2% StaidrimhAnPhriomh-Oifig CentralOfficeStatistics labourers,(for example,pp refuse cleaners,teachers, collectors, domestics,nurses, driver's journ mate)alists) 1111 UnskilledLower(for(for e exxample, teachers,rofessional cleaners, nurses, jo domestics,urnalists) 8.2% Staidrimh Office labourers,(forlabourers, example,p refuse teachers, refuse collectors, ncollectors,urses, driver's journ mate)alists) driver’s 7.8% mate) StaidrimhPhriomh-Oifig OfficeStatistics labourers,(for example, refuse cleaners, collectors, domestics, driver's mate) accounted for 22% of all individuals that 11111111 EmLower(for Em eppxloyersample,loyers professional and teachers, and managers managers nurses, jo3.4%urn alists) 7.8%3.4% Staidrimh Office 1111 labourers,EmLowerployers refuserofessional and collectors, managers driver's mate) 7.8%3.4% 1111EmLower(forLower Higher example,loyers pprofessionalrofessional professional teachers, and managers nurses, jo1.9%urn alists) 7.8% 7.8% I met who are pursuing a claim for loss 1111 Higher(for(for e pexample, p barristers,rofessional teachers, lawyers, clergy,nurses, journalists) 1.9%3.4% 1111 Lower(for(Fordoctors) example, example, professional teachers, teachers, nurses, jo nurses,urnalists) journalists)7.8% (forEmHigher epxample,loyers professional barristers, and managers lawyers, clergy, 1.9%3.4% 1111 (forOwn example, account teachers, worker nurses, jo1.5%urnalists) 1111(fordoctors)EmHigher epxample,loyers professional barristers, and managers lawyers, clergy, 1.9%3.4% of earnings. 1111 EmEmployersployers and and managers managers 3.4% 3.4% 11111111 Own(fordoctors)EmHigher Farmer epxample,loyers account professional barristers, and worker managers lawyers, 0.7%clergy, 1.9%3.4% 1111 doctors)Higher rofessional 1.5% 11111111 Own(forHigher Not ex reample, accountported professional barristers, worker lawyers, 0.3%clergy, 1.9%1.5% 1111 (fordoctors)Higher example, barristers,professional lawyers, clergy, 1.9% 1111 Own(forHigherFarmer example, account professional barristers, worker lawyers, clergy, 1.9%1.5% 1111 doctors)(For example, barristers, lawyers, clergy,0.7% 1111 Own(fordoctors)Farmer example, account barristers, worker lawyers, clergy, 1.5%0.7% Early intervention doctors)doctors) 1111 OwnNotFarmer re accountp orted worker 1.5%0.3%0.7% The conclusion to be drawn from this audit 1111 OwnFarmerNot re accountp orted worker 1.5%0.7%0.3% 1111 NotOwn re accountorted worker 1.5% 1111 Farmerp 0.7%0.3% is that workers in the professional and 1111 FarmerNot rep orted 0.7%0.3% 1111 NotFarmer re orted 0.7% 1111 Not reported 0.3% employer/managerial categories are less 1111 NotNot re preportedorted 0.3% 0.3% likely to pursue claims for loss of earnings.

Average time elapsed 3.8 yrs (2.22%) from date of injury to date of assessment Overall range 0 – 22.1 yrs gazette.ie Law Society Gazette March 2020 PERSONAL INJURIES 45 PIC: SHUTTERSTOCK

Over 50% of claimants are in receipt of a people worked before their injury (either claimant’s future employment status. formal disability payment from the Depart- full or part-time), whereas over 50% are It is abundantly clear that the sooner ment of Employment and Social Protection unemployed post-injury. The likelihood of a solicitors engage the services of vocational when they present for their vocational return to work after a musculoskeletal injury assessors in the legal process, the better assessment. Research shows that fear of losing is greatest in the first month, and becomes the outcome for claimants. The expert entitlements and not re-qualifying for benefit less likely with the passage of time, and least intervention of a qualified vocational payments can deter people from seeking likely once the person has lost their job. assessor at an earlier stage provides these employment (NESC, 2014). The vocational assessment is completed on individuals with advice and guidance to The most striking fact that the audit average 3.8 years after the injury, which is assist with a return to work in a much more demonstrates is that more than 75% of far too late to have a positive impact on a meaningful way.

LOOK IT UP n National Economic and Social THE SOONER SOLICITORS Council (2014), Jobless Households: An Exploration of the Issues, no ENGAGE THE SERVICES 137, June 2014 (Dublin: National Economic and Social Development OF VOCATIONAL Office) n Stephen Watkins, Insights into the ASSESSORS IN THE LEGAL Personal Injury Environment, PIAB Conference, 10 April 2019 PROCESS, THE BETTER n Tottenham et al (2019), A Guide to Expert Witness Evidence (Bloomsbury THE OUTCOME FOR Professional, Ireland) CLAIMANTS 46 FAMILY LAW March 2020 Law Society Gazette gazette.ie

AT A GLANCE n The Children and Family Relationships Act 2015 provides for the power of a court to make directions for the purpose of procuring an expert report on any question affecting the welfare of the child n The Family Law Courts Development Committee set about drafting guidelines in relation to the conduct of assessment and preparation of reports n The guidelines are quite onerous in terms of putting obligations on the parties and/or their legal representatives to undertake detailed steps by way of engagement with any potential assessor in advance of an application for appointment to the court

The 2012 children’s rights referendum represented a profound change to the constitutional rights of children, although its true impact may not yet be fully recognised. In the first of a two-part article, Donagh McGowan assesses the swings and roundabouts

DONAGH MCGOWAN IS A MEMBER OF THE LAW SOCIETY’S FAMILY AND CHILD LAW COMMITTEE

ne of the prime pieces of legislation stemming from the 2012 children’s rights referendum was the Children and Family Relationships Act 2015. That act brought about very significant changes in the area of family law, including substantial amendments to the Guardianship of Infants Act 1964. One of the significant changes to the 1964 act was

the insertion of a new part V by PIC: SHUTTERSTOCK section 63 of the 2015 act. The new part V consists of two new sections, 31 and 32. The new section 31 provides guidance to the courts in determining, for the purposes of proceedings SWINGS AND ROUNDABOUTS gazette.ie Law Society Gazette March 2020 FAMILY LAW 47

THE GUIDELINES PROVIDE A REQUIREMENT FOR THE PARTIES TO DETERMINE THE NATURE AND EXTENT OF THE ISSUES TO BE ADDRESSED IN THE CONTEXT OF THE ASSESSMENT 48 FAMILY LAW March 2020 Law Society Gazette gazette.ie

under the 1964 act, what is in the ‘best to the proceedings or any other person to the scope of an assessor appointed under interests’ of a child, and lists factors and whom they relate”. These are described as section 32(1)(a). Specifically, if an assessor is circumstances to be considered by a court in ‘social reports’ in the notes to the 1995 act. only appointed under section 32(1)(a), can making such a determination. Subsection 6 of section 47 states that it be argued that the assessor’s function does Section 32 provides for the power of a subsection 1 applies to proceedings “under not then extend to “determine and convey the court to make directions for the purpose of the act of 1964” and “under the act of 1989” child’s views”? procuring an expert report on any question – that is, in relation to judicial separation No such limitation ever existed in practice affecting the welfare of the child, or to proceedings, later extended to include in assessments carried out on foot of section appoint an expert to determine and convey a divorce proceedings. 47 of the 1995 act, nor was it probably child’s views. This provision stems from the intended that one section would limit the children’s rights referendum and the insertion rders under section 47(1) are most other. However, in light of the necessity in of article 42A(4)2, which provides that commonly made in divorce and appropriate cases to ‘hear the voice of the “provision shall be made by law for securing, judicial separation proceedings. child’, it may be prudent that an assessor as far as practicable, that in all proceedings OHowever, it is important to note that, in would, in fact, be appointed under both referred to in subsection 1 of this section in the context of any such proceedings, orders sections, if it is intended that the assessor respect of any child who is capable of forming relating to children are generally made on would undertake a ‘full assessment’ as would his or her own views, the views of the child foot of the miscellaneous ancillary orders be the norm under a section 47 appointment, shall be ascertained and given due weight provisions of the 1995 act and the Family Law including hearing the voice of the child. This having regard to the age and maturity of Divorce Act 1996. In particular, section 10(f) also points to the importance of the parties the child”. of the 1995 act and section 15(f) of the 1996 and/or their legal representatives turning The 2015 act gave the courts the power ac, allow the court to make ancillary orders their minds at the outset as to what exactly to make orders for the procurement of two in judicial separation or divorce proceedings, the assessor is being asked to undertake, types of reports. respectively, “under section 11 of the act of which is one of the requirements of the Reports under section 32(1)(b) of the 1964 1964”. In essence, orders relating to children new guidelines. act, which relate to an expert determining in such proceedings are effectively made on and conveying a child’s views, are essentially foot of the 1964 act. As a consequence, an Sparse provision limited in nature and largely do not come order made by the court under section 47 of Section 47 of the 1995 act is a sparse provision within the scope of this article. A court may the 1995 act necessarily involves compliance that does not set out any guidance as to what also order an expert to procure a report on with the new provisions of section 31 of the factors should be considered by the assessor in any question affecting the welfare of a child 1964 act when an assessment and report are making recommendations as to, or the court on foot of section 32(1)(a). That section is undertaken. By extension, it could be argued in determining, the best interests of a child. very much akin to the long-established power that it is now appropriate that any order under The provisions of sections 31 and 32 of the in section 47(1) of the Family Law Act 1995 section 47 should be made in conjunction 1964 act are far more detailed. Section 31(2) that provides “in proceedings to which the with, or be replaced by, an order under sets out factors and circumstances that the section applies, the court may, of its own section 32(1)(a) of the 1964 act. court shall have regard to in determining the motion or on application to it in that behalf There is one note of caution in relation best interests of the child. Subsection 3 also by a party to the proceedings, by order give to the new section 32 provisions. As the mandates the court to consider the impact such directions as it thinks proper for the section provides for two different types of of ‘household violence’, while subsection purpose of procuring a report in writing on reports, it might be argued that the separate 4 provides that a parent’s conduct may be any question affecting the welfare of a party reporting provisions of section 32(1)(b) limit considered to the extent that it is relevant to the child’s welfare and best interests only. Section 32 of the 1964 act sets out detailed provisions in relation to the power of the THERE HAS NEVER court to appoint experts to undertake reports. It includes subsections 10 and 11, allowing BEEN ANY REGULATION the minister to make regulations specifying the qualifications and minimum level of IN RELATION TO experience of an expert to be appointed, the fees and expenses chargeable by such experts, THE CONDUCT OF the minimum standards that shall apply in the performance by an expert of his/her functions ASSESSMENTS AND under the section, and such other matters as the minister considers necessary to ensure REPORTS PREPARED that experts are capable of performing their functions under the section. UNDER SECTION 47 OF These provisions highlight the absence of similar provisions in section 47 of the 1995 THE 1995 ACT act. Perhaps as a consequence, there has never gazette.ie Law Society Gazette March 2020 FAMILY LAW 49 been any regulation in relation to the conduct of assessments and reports prepared under section 47 of the 1995 act.

Guidelines In recognition of the lack of such regulation, and in view also of the inevitable increase in reports relating to children arising from the passing of the 2015 act, the Family Law Courts Development Committee set about drafting guidelines in relation to the conduct of assessment and preparation of reports under section 47 of the 1995 act and section

32(1)(a) of the 1964 act. In drafting those PIC: SHUTTERSTOCK guidelines, the committee engaged with a number of stakeholders – in particular, representatives of a group of assessors experienced in carrying out such assessments and reports. The guidelines apply to reports under section 47 of the 1995 act and section 32(1)(a) Very often, the practice of the parties (and In addition, the guidelines provide a of the 1964 act. The guidelines are not indeed of the courts) has been somewhat lax requirement for the parties to determine the intended for reports under section 32(1)(b) of in terms of ordering section 47 and/or section nature and extent of the issues to be addressed the 1964 act, which relate solely to an expert 32(1)(a) assessments, although that practice in the context of the assessment. In cases where determining and conveying a child’s views. appears to be changing. The guidelines the appointment of the assessor is agreed by provide a structure for intended applications the parties, it is routinely the case that little he guidelines firstly highlight an to court seeking orders on foot of section effort is made to determine the extent of the important issue, which sometimes can 47 and/or section 32(1)(a), the conduct of issues to be addressed by the assessor and to be overlooked by practitioners, but in any such assessment, the preparation of the determine how the process shall be conducted. particularT by parties to proceedings – namely, subsequent report, and its release to the The guidelines therefore provide as follows: that the recommendations in such reports are parties by the court. “The parties, shall, where practicable, not not binding on a court. The guidelines quote Specifically, the guidelines provide the less than one week prior to the hearing date Denham J in JMcD v PL and BM where she following: of the application, and in any event prior to stated that “the learned trial judge erred in • Obligations of the parties and/or their legal the matter coming before the court, identify determining that the section 47 report should representatives, and exchange in writing the issues to be be accepted, as a mandatory matter, save • Obligations on the assessor, addressed in the assessment, a draft letter of for grave reasons, which the court clearly • General matters, instruction to the assessor and orders which it set out”. Denham J indicated that this was • Matters for consideration by the court. is proposed the court may be asked to make. an incorrect approach, as it would alter the Any such agreed issues/proposed orders (or role of the court being the decision-maker. Obligations the respective positions of the parties where no She indicated that the court is required to The guidelines are quite onerous in terms agreement has been reached) shall be provided consider all the circumstances and evidence of putting obligations on the parties and/ to the court in writing at the commencement of a case, and that the section 47 report is or their legal representatives to undertake of the hearing of the application.” simply part of the evidence to be considered detailed steps by way of engagement with any by the court. It is therefore clear that a court potential assessor in advance of an application can and should, where appropriate, depart for appointment to the court. from the recommendations in a report, in That includes: LOOK IT UP whole or in part. • An obligation to make enquiries as to the In practice, there would appear, anecdotally, availability of an assessor, CASES: to be a significant disparity in how judges • Bringing to the attention of the assessor n JMcD v PL and BM [2009] IESC 81 deal with the recommendations in such any particular urgency in the matter, reports. While some judges might be very • Bringing to the attention of the assessor LEGISLATION: slow to depart from recommendations, it is any difficulties in relation to the parties’ n Family Law Act 1995 nonetheless important for both parties and availability, so that the assessor can n Children and Family Relationships Act practitioners, and assessors themselves, to be determine a timeframe within which the 2015 aware of their respective roles and functions assessment can be concluded, and n Family Law Divorce Act 1996 in the conduct of such assessments and the • Provision of relevant information to the n Guardianship of Infants Act 1964 preparation of reports. assessor once the appointment is made. 50 WELLBEING March 2020 Law Society Gazette gazette.ie DIGITAL DUMMIES AT A GLANCE

n To understand the attraction of technology, we must return to our earliest relationships n Two of our most formative skills – how to relate and regulate – are learned in the first 1,000 days of our lives n Both skills are powerfully reactivated by technology n Technology works best when there is mutual respect, and clear and reasonable boundaries have been set

Our relationship with technology – whether email, messaging or social media – at once contributes to, and diminishes, our sense of wellbeing. Antoinette Moriarty goes in search of a soother

ANTOINETTE MORIARTY IS A PSYCHOTHERAPIST AND MANAGER OF THE LAW SCHOOL’S PSYCHOLOGICAL SERVICES

ecades ago, in my primary school years, the most important line of communication to the outside world lay in the least suitable place – the cold hall of our house. A private chat with a best friend was continually interrupted by various family members’ regular forays into that space, and it was, naturally, the favoured location for my much younger, and thus intensely curious, sister’s handstand practice. Later, in my boarding school years, calls were made once weekly on a public phone, housed bewilderingly inside a converted confessional box, within easy earshot of the principal – and in full view of the orderly queue outside. Little wonder I was an early convertor to the joy of a personal mobile phone, gazette.ie Law Society Gazette March 2020 WELLBEING 51 DIGITAL DUMMIES PIC: SHUTTERSTOCK

THE COMPLEX TRUTH IS, HOWEVER, THAT AS SUBSTITUTES GO, TECHNOLOGY IS THE PERFECT STORM, DANGLING A HEADY COCKTAIL OF SEDUCTIVE INGREDIENTS IN FRONT OF OUR UNSUSPECTING BRAINS AND SENSITIVE ATTACHMENT SYSTEMS 52 WELLBEING March 2020 Law Society Gazette gazette.ie

promising as it did that most satisfying of all human experiences – connection on demand. We reach for our phones upwards of 60 times per day, and spend an average of three hours and 15 minutes scrolling, reading, chatting or gaming – with 20% of smartphone REPORTED LEVELS users spending upwards of a staggering four- and-a-half hours gazing at their screens daily. OF ANXIETY HAVE Over a single year, that exceeds even a generous annual leave allocation – and then some! NEVER BEEN HIGHER, It is all too easy, and perhaps simply downright reductive, to say we are ‘addicted’ to PARTICULARLY IN our devices – as if they hold hypnotic powers that bypass all resistance. The truth, of course, CHILDREN AND YOUNG as with everything in life, is far more complex and far less awful. To understand the grip PEOPLE technology has on us, we must return to our earliest relationships and consider how the dynamics of attachment with our parents and experiencing the calming and containing term to describe the experience of so many caregivers are recreated, and mirrored in the efforts of our parents or care-givers. If they people who become temporarily separated attachment we form with our devices. are able to tolerate our distress and outbursts from their phones, and whose attachment of big feelings – anyone who has spent systems are literally ‘alarmed’ and in need of First 1,000 days anything longer than an hour with a toddler the familiar soothing promised by this small Our first 1,000 days – from conception to or a teenager knows the score here – while gadget – our imagined gateway to relief. around the time of our second birthday – remaining calm and connected, we gradually The urgency and dread of separation, determine much of our future lives. During internalise their acceptance and soothing; of which we all know something, arises, of these crucial early days, our brains undergo offering it to ourselves and others as we grow course, from our very ability to temporarily their most rapid period of growth, and up and away from them. invest the calming powers, usually held enjoy their highest levels of ‘plasticity’ or by parents and other loved ones, into our responsiveness. Meet ‘Ted’ substitute ‘soother’ of choice. Where relating and regulating become he quality of our care, nutrition, and our complicated is when our valued people are not s substitutes go, technology is the environment lay down physiological, reliably or readily available to us. As babies, perfect storm, dangling a heady neurological and emotional markers many of us had a pretty smart workaround for cocktail of seductive ingredients in thatT remain with us throughout our lives, this lack – a favourite teddy, blanket or even frontA of us. influencing the architecture and hard-wiring a scrap of a parent’s clothing. The brilliant, The multimillion-dollar technology of our brains. It is also in these tender months late, child psychoanalyst Donald Winnicott industry backing this way of communicating that we learn two of our most formative skills termed these favoured and beloved bits our ensures it hooks us on every level of our – skills that, interestingly, are both powerfully ‘transitional objects’ – substituting when being – from sensory to rational, intellectual reactivated by technology: to relate and to required for the presence of our mothers or to emotional. Our habits, tastes, wishes, regulate. In order to feel well (wellbeing) and to fathers. I know of at least one hugely clever preferences, movements and desires are be well (mental health), we need to be in ‘good lawyer who settled her sister’s tiny children meticulously recorded before we ourselves enough’ relationships with others, and we also to bed wearing their mother’s dressing gown have even consciously registered them. need to be able to regulate our emotions. when they were in her charge. It is not hard It is this data that informs the next Relating, while it remains a lifelong need, to spot the extension of this practice into our generation of even more covetable devices, is never more important than in those early beloved devices, which we pick up on average and even more individually bespoke streams days of life. If all goes well, we form powerful every four minutes, and lay within easy reach of information flowing into them – and so attachments to the people who literally light of us, even as we sleep. That reported levels the cycle continues. up our neural systems – and we continue to of anxiety have never been higher, particularly enjoy and seek out connections as a source of in children and young people, however, would Shadow side wellbeing throughout our lives. seem to indicate it’s neither as effective, nor Humans have two basic needs – connection Emotional regulation, or soothing, is the skill as benign, as ‘Ted’ or, more importantly, the and authenticity. The need for connection of navigating big feelings, like rage, grief, envy valued people it seeks to replace. will always trump authenticity, making life and loss, and surviving the inevitable ruptures messy and leading us, at times, to abandon we have, from time to time, with people in our Bells of anxiety ourselves in favour of a sense of belonging. lives; without losing our own equilibrium, their Canadian trauma psychotherapist Gabor We have all witnessed just how quickly goodwill, or indeed the relationship. Mate considers anxiety to be a powerful online relating can move from generating We learn this complex capacity by repeatedly ‘attachment alarm’. This also seems an apt belonging to stirring up a gang mentality. gazette.ie Law Society Gazette March 2020 WELLBEING 53 PIC: SHUTTERSTOCK

IT IS ALL TOO EASY, AND PERHAPS SIMPLY DOWNRIGHT REDUCTIVE, TO SAY WE ARE ‘ADDICTED’ TO OUR DEVICES – AS IF THEY HOLD HYPNOTIC POWERS THAT BYPASS ALL RESISTANCE. THE TRUTH, OF COURSE, IS FAR MORE COMPLEX AND FAR LESS AWFUL

This virtual powerbase allows us, on the megaphone. It is up to each of us to set While technology is a loyal companion, occasion, to bypass our natural human the terms for our own engagement and, as it is also a jealous thief of time. As with all empathy with, at times, tragic consequences. with any abusive behaviour, to remain vigilant healthy and happy relationships, it works Carl Jung maintained we all have within us to our own part in the growing appetite for, best when there is mutual respect, and a light side and a shadow side. Our shadow and tolerance of, hate. clear and reasonable boundaries. is the darker side of our personality, usually And while it may convincingly mimic firmly repressed and not easily acknowledged. e are still in the infancy of one the soothing and energising aspects of It seems, however, to find its way more easily of the biggest social experiments relating, it must never replace them. But into the virtual world, emboldened perhaps of our society. The emergence it has, undoubtedly, earned and secured by the facelessness, timelessness and lack Wof a fully connected world, in which the its place in the hearts – and pockets – of of boundaries. We do know, however, that thoughts, ideas and actions of the individual many of us. I look forward to the next technology itself is not the creator of this can, in a moment, become the property of stage with the excitement of what might darkness. It is simply the platform, the vessel, the world. be possible. 54 ANALYSIS News in depth March 2020 Law Society Gazette gazette.ie

SMALL IS BEAUTIFUL A study of sole practitioners and smaller practices from the Society’s Small Practice Support Project says that networking is significant to success. Louise Farrell reports

LOUISE FARRELL IS SENIOR MANAGER (CONSULTING) AT CROWE

he Law Society-commis- Joining new networks and problems that SMEs in other sioned report (tasked to expanding a practice’s current net- sectors face, Crowe) has revealed a work will enable small practices • Financial benefits (cost sav- Tnumber of key insights in rela- to gain insights from like-minded ings, cost sharing), tion to sole practitioners and individuals and other small prac- • Business referrals and new smaller legal practices, which tice/business owners, all of whom business opportunities. have led to 11 recommendations. will likely be facing similar chal- Of particular relevance are rec- lenges and opportunities. The report outlines methods ommendations 1 and 5: It is also a cost-effective form of ensuring that you make the • Recommendation 1 – diversifying of marketing and a great way of most of your current networks, business development practices: promoting your practice and as well as deciding factors on smaller practices need to diver- your service offerings to potential which organisations are the best sify their business development clients. fit for expanding your network. activities and move beyond a There are a large number of These methods include setting

reliance on their existing client benefits associated with join- targets, following up on initial PIC: SHUTTERSTOCK base and referrals. ing networks and membership introductions, ensuring the right THERE ARE A • Recommendation 5 – building organisations. These benefits can fit between your practice and the networks/strategic collaborations: assist smaller practices in suc- network, and implementing a LARGE NUMBER smaller practices need to build cessfully meeting growth goals planned approach. OF BENEFITS greater networks within the and can help them overcome the sector and with external bodies. challenges associated with run- Planning ahead ASSOCIATED WITH This recommendation is also ning a smaller practice. Benefits As with all business activities, net- connected with furthering busi- can include: working should be approached THE GROWTH ness development opportunities • Collective problem solving – in a planned way. Key consider- OF YOUR and marketing efforts. many practices will face similar ations should be: problems and will also share • What is your aim? PROFESSIONAL Take five Both of these relate to the future- NETWORK. proofing and sustainability of CAREFUL smaller practices. Recommendation 1 identifies PLANNING the need for practices to move away from a reliance on refer- MAKES THESE rals for generating business and MORE LIKELY TO introduce a more diverse set of business development activities.

HAVE A POSITIVE Recommendation 5 advises PIC: SHUTTERSTOCK that a method of increasing busi- EFFECT ON YOUR ness development is for small PRACTICE AND ITS practices to build greater net- works, both within the legal sec- GROWTH tor and externally. Crows: good at networking gazette.ie Law Society Gazette March 2020 News in depth ANALYSIS 55 PIC: SHUTTERSTOCK

• Who are your ideal connec- • Sharing office space, and its growth. Referencing the YOUR tions (people)? • Sponsorship opportunities, small practice network report • What can I do for these mem- • Awards and competitions, and, in particular, the network- NETWORKING bers? • Speaking engagements/pro- ing planner within that report, • What can they do for me? viding expert opinion. will provide you with a guide to ACTIVITIES CAN • What are my targets/expecta- approaching networking activi- BE ASSISTED tions? Giant steps ties – and, in particular, the plan- • What is my ‘elevator pitch’ to The report finishes by summa- ning phase of these activities. THROUGH this group? rising the next steps for practices The report is part of an over- THE USE OF looking to increase their net- all programme of supports being Answering such questions will working activities. The report provided to smaller legal prac- ADDITIONAL enable a greater understanding also contains an appendix, listing tices by the Law Society. Your of the benefits of membership of a significant number of networks networking activities can be SUPPORTS each individual network/organisa- and membership organisations assisted through the use of addi- AVAILABLE TO tion. The report also lists potential from all over Ireland. tional supports available to small networks and organisations that There are a large number practices on the Small Prac- SMALL PRACTICES smaller practices can join, as well of benefits associated with the tice Support Hub (launched in as outlining a number of alterna- growth of your professional net- July 2019), and relevant online ON THE SMALL tive networking methods: work. Careful planning makes and on-site training resources, PRACTICE • Becoming a member of a these more likely to have a including www.lawsociety.ie/ board, positive effect on your practice businesshub. SUPPORT HUB 56 ANALYSIS News in depth March 2020 Law Society Gazette gazette.ie

DPC WARNING ON ‘QUICK-FIX’ SOLUTIONS The Data Protection Commissioner Helen Dixon says that ‘mass-produced’ data privacy decisions will be overturned. Mary Hallissey reports

MARY HALLISSEY IS A JOURNALIST WITH THE LAW SOCIETY GAZETTE

ata protection is now “When EU competition-law the summary imposition of heavy an established fixture of rules were first introduced in penalties on organisations for public consciousness, the 1962, it was a further number of data-protection infringements, at DataD Protection Commissioner years before the first significant least some of which may be based Helen Dixon says in the Data decision in the Grinding case on the application of principles on Protection Commission’s (DPC) issued, and a number of years which there is not always consen- Annual Report 2019. However, beyond that again before the first sus,” the data protection commis- a new legal framework with very fine was issued. sioner says. significant penalties and legal “Equally, EU competition “While acknowledging that the novelty in terms of cooperation investigations [the fining regime administrative fines’ mechanism and consistency provisions will in the GDPR is based on EU represents an important element take time to bed in. competition law], on average, take of the drive toward the kind of AS A RESPONSIBLE “As we have consistently said, a number of years to complete,” meaningful accountability her- there would be little benefit in Dixon says. alded by the GDPR, we must also REGULATORY mass-producing decisions, only “As a responsible regulatory recognise that, like any other part BODY, WE to have them overturned by the body, we are wary of demands for of our laws, data-protection prin- courts,” the commissioner says. quick-fix solutions and calls for ciples operate within a broader ARE WARY OF DEMANDS FOR QUICK- FIX SOLUTIONS AND CALLS FOR THE SUMMARY IMPOSITION OF HEAVY PENALTIES ON

ORGANISATIONS PIC: ROLLINGNEWS.IE FOR DATA- PROTECTION

INFRINGEMENTS Data Protection Commissioner Helen Dixon gazette.ie Law Society Gazette March 2020 News in depth ANALYSIS 57 PIC: SHUTTERSTOCK

legal context and so, for example, The DPC says that, across adjudicated by the DPC central are broadly aware of their rights the application and enforcement Europe, smaller SMEs are asking to many of these cases. under GDPR, and keen to know of such principles by a statutory for more help to identify reason- how to exercise them. regulator will always be subject able and appropriate implementa- Most complaints The DPC is also engaged heav- to the due process requirements tion measures, and for a stronger Telcos and banks remain among ily with expert stakeholders in the mandated by our constitutional sectoral focus on the guidance the most complained-about sec- area of children’s digital rights, laws and by EU law,” Helen issued. tors to the DPC, with complaints and will continue to encourage Dixon says. At least 40% of DPC resources essentially focussing on account big-tech platforms to sign up to a “These are constraints that are devoted to the handling of administration and charges. code of conduct on children’s data cannot (and should not) be set to individual complaints rather than Given that these sectors are processing. one side in some arbitrary fashion on large-scale, more systemic heavily regulated in Ireland, the “We aim by the end of 2020 or for the sake of expediency.” investigations. DPC says that it is disappointing to have facilitated the progres- The report details a range of Disputes between employees that core consumer-protection sion of big tech towards a code of important EU developments, and employers or former employ- issues cannot be sorted out inter- conduct to better protect children including instructive CJEU ers are a significant theme of nally, without the need for con- online,” the DPC says. judgments (such as Fashion ID complaints lodged with the DPC, sumers to lodge complaints with “The drive in the US to imple- and Planet49), the Advocate often around a disputed access the DPC. ment more and more privacy General’s opinion on the SCCs request. Complaints against internet legislation is a sign that ‘enough data-transfer litigation, and the Litigation by individuals platforms have also grown in vol- is now enough’ in terms of toler- world’s largest data-privacy finan- against DPC decisions that their ume, mainly about management ating unnecessarily invasive data- cial penalty (the $5bn imposed by data-protection rights were not, of individuals’ accounts and, in privacy practices and technolo- the Federal Trade Commission in fact, breached at all make up particular, their rights to data era- gies,” the commission warns. on Facebook). a significant proportion of the sure when they leave a platform. litigation the DPC is subject to Dixon says that many people Revealing 1,500 DPOs notified in the courts today, the annual feel confused about their rights The annual report reveals the fol- In Ireland, 1,500 data protection report states. with regard to their personal data. lowing: officers (DPOs) were notified This is driven by the fact that The DPC intends to increase • 7,215 complaints were received, to the DPC in 2019, all within neither the Workplace Relations its efforts to produce more case representing a 75% increase on public-sector and large data-pro- Commission nor the Labour studies, and to draw out the les- the total number of complaints cessing organisations, ensuring Court can order discovery in sons from a consumer point of (4,113) received in 2018, that data subjects’ rights are con- employment claims, which makes view, but the commissioner says • 5,496 complaints in total were sidered in all projects. reliance on access requests as that she is encouraged that people concluded in 2019, gaLAW SOCIETY ette Giving you the power of three

1. The monthly magazine 2. The daily news site 3. The weekly digest LAW SOCIETY GAZETTE • Vol 112 No 1 No frontiers Dark knights To boldly go The possible impact of It is difficult to reconcile Correctly scoping a discovery Brexit on human rights and vigilante activity with the exercise is critically important equality provisions traditional justice system to its outcome and efficiency 2. gaLAW SOCIETY ette€4.00 JAN/FEB 2018 1. JAN/FEB 2018

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Giving you the power of three • 6,069 valid data security were handled by the DPC from on, among other matters: breaches were notified, rep- affected individuals, and • The Adoption (Information and resenting a 71% increase • 6,069 valid data security Tracing) Bill 2016, on the total number of valid breaches were recorded, with • Future funding of public ser- data security breaches (3,542) the largest single category being vice broadcasting, recorded in 2018, ‘unauthorised disclosures’. • Body-worn cameras for An • Almost 48,500 contacts with Garda Síochána, the DPC included 22,200 tele- The DPC dealt with concerns • Amendments to the Electoral THE phone calls and 22,300 emails, relating to the role and use of the Act 1992, to allow for the • By year-end 2019, the DPC Public Services Card, the use of establishment of the Citizens ADMINISTRATIVE had 70 statutory inquiries in CCTV, particularly in the con- Assembly 2019 and the Dublin hand, including 49 domestic text of neighbour disputes and Citizens Assembly, FINES’ inquiries, the application of the domestic • The Civil Registration Bill and MECHANISM • Six statutory inquiries were exemption (see this month’s cover the Defence Forces (Evidence) Bill opened in relation to multi- story), and access requests on 2019, REPRESENTS national technology com- behalf of children. • Disabled drivers and disabled panies’ compliance with the Some requests related to closed passengers’ fuel grant, AN IMPORTANT GDPR, bringing the total medical practices (often due to • Registrar of Beneficial Owner- ELEMENT OF THE number of cross-border the death of a practitioner), with ship of Companies and Indus- inquiries to 21, patients unable to establish who trial and Provident Societies, DRIVE TOWARD • 165 new complaints were was now in control of their per- • Gender Pay Gap Information Bill investigated under statutory sonal data. 2019, THE KIND OF instrument no 336 of 2011, • Housing (Regulation of Approved MEANINGFUL in respect of various forms of Disputes Housing Bodies) Bill 2019, electronic direct marketing: HR/employment disputes, spe- • Judicial Council Act 2019, and ACCOUNTABILITY 77 related to email marketing; cifically workplace surveillance, • Microchipping of dogs regula- 81 to text-message marketing; but also concerns about the shar- tions. HERALDED BY and seven to telephone mar- ing of information in the context THE GDPR, BUT keting. Prosecutions were con- of disputes, and the redaction of In August 2019, the DPC did a cluded against four entities in third-party data in response to sweep of the use of cookies and WE MUST ALSO respect of nine offences under employee-access requests, were similar technologies on a selec- RECOGNISE the ePrivacy Regulations. also received. tion of websites across a range • 6,904 complaints were dealt The DPC also dealt with con- of sectors, including media and THAT, LIKE ANY with under GDPR, and 311 cerns about exam information — publishing, retail, restaurants and complaints under the Data in particular queries relating to food-ordering services, insur- OTHER PART OF Protection Acts 1988 and 2003, examiner’s notes and photography ance, sport and leisure, and the • The DPC issued 29 ‘section consent, publication, and artistic public sector. OUR LAWS, DATA- 10’ statutory decisions under exemptions. “Given the pervasive nature PROTECTION the Data Protection Acts 1988 Access requests accounted for and scope of online tracking, and and 2003. Of these, 13 deci- 1,971 cases (or 29%), disclosure the inextricable links between PRINCIPLES sions fully upheld the com- for 1,320 (19%), fair processing such tracking and cookie tech- plaint, seven rejected the 1,074 (16%), marketing com- nologies and ad-tech, we will OPERATE WITHIN complaint, and nine partially plaints 532 (8%), and the right to place a strong focus on compli- A BROADER upheld the complaint, erasure 353 (5%). ance in this area,” the annual • 207 data-breach complaints In 2019, the DPC was consulted report says. LEGAL CONTEXT 60 ANALYSIS News in depth March 2020 Law Society Gazette gazette.ie

IN THE BAG! Mr Justice MacMenamin has criticised the plastic-bag levy legislation for being ‘overly complex’ and ‘capable of a much clearer definition’. Martin Phelan and Trish McGrath unwrap the package

MARTIN PHELAN IS HEAD OF TAX AND TRISH McGRATH IS A TRAINEE SOLICITOR AT WILLIAM FRY TAX ADVISORS

n Dunnes Stores v Rev- included in the 2001 regula- given appropriate weight by the enue Commissioners & Others tion was so unclear as to render legislative draftsman, particularly ([2019] IESC 50), Mr Justice the regulation unenforceable, in circumstances where Mr Jus- IMacMenamin considered the and tice MacMenamin took particu- plastic-bag levy provisions con- • The Revenue Commissioners lar time to bring issues surround- tained in the Waste Management failed to provide them with any ing the quality of drafting to the Act 1996 (as amended by the direction as to how the money attention of the legislature. Waste Management (Amendment) due should be calculated. The Supreme Court judge not Act 2001), the Waste Management only expressed views on the lack (Environmental Levy) (Plastic Bag) ‘Overly complex’ legislation of clarity in the drafting of the Regulation 2001, and related leg- While there is an exemption legislation, but also suggested IT IS CLEAR FROM islation. under the legislation for bags of that provisions in future hearings The judge observed that “the a certain size or smaller (250mm by the courts might be deemed THE JUDGMENT meaning of a legal provision wide by 345mm deep by 450mm unconstitutional, and ultimately must, insofar as is practicable, long), the bags in Dunnes were unenforceable, if they were not THAT MR JUSTICE be clear and discernible”. By larger than these dimensions. “clear and discernible”. MACMENAMIN way of background, the High Mr Justice Hedigan of the High Court delivered judgment in Court ruled against Dunnes and Clearer definition WAS GREATLY Dunnes Stores in December 2011. found that “it would be most Mr Justice MacMenamin agreed Dunnes Stores challenged the improbable that the legislature with Mr Justice McKechnie’s find- CONCERNED 2001 regulation imposing the would exempt plastic bags that ing that the legislative intent of ABOUT THE plastic-bag levy after the Rev- are supplied anywhere other than the plastic-bag levy provisions was enue Commissioners served the point of sale. Such a provi- discernible – but he criticised the QUALITY OF the supermarket chain with tax sion would miss large numbers of lengthy considerations required assessments of €36.5 million plastic bags and diminish greatly by the court to get to this point. LEGISLATIVE in levies on plastic bags used in the impact of the act.” The High The judge also suggested that, if a DRAFTING AND, Dunnes Stores’ supermarkets. Court further held that pro- statutory provision is very ambig- The High Court held that the cedures taken by the Revenue uous in its wording or includes AS SUCH, THE 2001 regulation included flimsy Commissioners were not unfair. confusing cross-references to plastic bags (often used for fruit, Dunnes appealed the deci- other statutory provisions, it may COMMENTS vegetables and bread), as well as sion to the Supreme Court. In “not possess the defining indicia of SHOULD BE more robust plastic carrier bags. dismissing the appeal, the court the law itself”. Dunnes contended that: was very critical of the “overly Mr Justice MacMenamin also READ BY THE • The levy only related to larger complex” legislation. Mr Justice looked at article 40.3.1 of the plastic bags given to custom- MacMenamin gave particular Constitution, which provides LEGISLATURE ers at the ‘point of sale’, which time and consideration to the that “the State guarantees in its WITH GREAT were suitable for carrying gro- need for clearly drafted statutory laws to respect, and, as far as ceries and other goods, provisions. practicable, by its laws to defend CARE • The definition for plastic bag His observations deserve to be and vindicate the personal rights gazette.ie Law Society Gazette March 2020 News in depth ANALYSIS 61

of the citizen”, and article 40.3.2, ambiguous legislation can lend statutory instrument introduced DUNNES STORES which provides that “the State itself to abuse and that he provi- by the minister. shall, in particular, by its laws sions involved in this appeal are While the legislation pres- CHALLENGED THE protect as best it may from unjust “surely capable of a much clearer ents an “entirely laudable” pur- attack and, in the case of injustice definition”. pose, being the reduction of the 2001 REGULATION done, vindicate the life, person, use of plastic bags, which pose IMPOSING THE good name, and property rights Good faith a risk to the environment, Mr of every citizen”. In assessing the conduct of both Justice MacMenamin concluded PLASTIC-BAG He contended that the “con- sides, he considered whether the that “neither public policy, nor stitutional and legal protections same course of action would have benign purposes should stand in LEVY AFTER should apply as much to entities been taken by the Revenue Com- the way of legislative clarity”. THE REVENUE as they do to ordinary citizens”, missioners if the matter involved It is clear from the judgment and the guarantees provided in a small rural shopkeeper running that Mr Justice MacMenamin COMMISSIONERS the Constitution are grounded a supermarket, and held that “the was greatly concerned about on the rule of law and, as such, conduct on one side has begot- the quality of legislative draft- SERVED THE the rule of law must be “clear and ten a reaction from the other”, ing and, as such, the comments SUPERMARKET discernible”. emphasising the need for good should be read by the legislature The fundamental protections faith and fair dealing between with great care. CHAIN WITH TAX set out in the Constitution not citizens, corporate entities, and The judgment is of particular only operate to protect persons the State. interest in relation to tax legisla- ASSESSMENTS subject to a particular law, but The use of the words “or other- tion, where recent trends suggest also their advisors when assess- wise” and “point of sale”, accord- a leaning towards an ambiguous OF €36.5 MILLION ing whether their conduct is ing to Mr Justice MacMenamin, approach, arguably using widely IN LEVIES lawful. While the complex- were unnecessarily ambiguous undiscernible language, espe- ity of the legislation had not when “it would not have been dif- cially in relation to tax structures. ON PLASTIC resulted in an abuse in Dunnes, ficult to define the intended scope This judgment raises the issue Mr Justice MacMenamin also of the legislation”. For instance, of whether some aspects of our BAGS USED IN opined that the Government “the method of estimation, tax legislation are unnecessarily DUNNES STORES’ and people responsible for draft- assessment and collection could complicated and ambiguous in ing laws must keep in mind that have been directly defined” by the an aim to avoid abuse. SUPERMARKETS 62 ANALYSIS Eurlegal March 2020 Law Society Gazette gazette.ie

THE EUROPEAN GREEN DEAL The EU’s ‘Green Deal’ has an ambitious target of transforming the EU into a fair and prosperous society. Diane Balding reports

DIANE BALDING IS CHAIR OF THE EU AND INTERNATIONAL AFFAIRS COMMITTEE

n 11 December 2019, able path. At the same time, it is plan to increase the EU’s GHG the European Com- recognised that there is a need reductions for 2030 to at least mission published its to maintain the EU’s security 50% and towards 55% compared communicationO outlining what of supply and competitiveness with 1990 levels. An extension it calls the European Green Deal when others are unwilling to act. of the European emissions trad- (COM (2019) 640 final) for the ing to new sectors is mooted. EU and its citizens. The ‘Green What is to be done? Policy reforms are to help ensure Deal’ is a response to ongoing All EU actions and policies are effective carbon pricing across climate and environmental- expected to contribute to the the economy, with the knock-on related challenges, resetting the Green Deal objectives, with effect of encouraging change in commission’s commitment to intense coordination across all consumer and business behav- tackling them. policy areas. To transform the iour. An increase in sustainable As a new growth strategy, the EU’s economy for a sustainable public and private investment is Green Deal has an ambitious tar- future, consistent use of all policy also to be facilitated. Aligning get of transforming the EU into a levers will prevail: regulation and taxation with climate objectives fair and prosperous society, with standardisation, investment and is crucial. Consequently, the a modern, resource-efficient and innovation, national reforms, commission is to propose a revi- competitive economy, having dialogue with social partners, sion of the Energy Taxation Direc- no net emissions of greenhouse and international cooperation. tive (2003/96/EC). gases (GHG) in 2050. Economic The European Pillar of Social It is acknowledged that, if inter- growth is to be decoupled from Rights will be used as a guide to national partners do not share the resource use. In parallel, the ensure no one is left behind. In EU’s ambition, carbon leakage ALL EU POLICIES Green Deal aims to protect, addition, current legislation and is a risk. An example would be ARE EXPECTED conserve, and enhance the EU’s policies relevant to the Green transfer of production from the natural capital, and protect the Deal are to be enforced and EU to other countries with lower TO CONTRIBUTE health and wellbeing of citizens effectively implemented. The ambitions for emission reduction. from environment-related risks actions and policies proposed are Should this pan out, the com- TO PRESERVING and impacts. broad sweeping: mission is expected to propose a AND RESTORING All the while, this transition is To enshrine the 2050 climate carbon border-adjustment mech- to be just and inclusive, putting neutrality objective in legisla- anism for selected sectors, so the EUROPE’S people first, and each EU initia- tion, the commission will pro- price of imports more accurately tive is to live up to a green oath pose the first European ‘climate reflect their carbon content. This ‘NATURAL’ to ‘do no harm’. It is recognised law’ by March 2020. This law will be designed to comply with CAPITAL that the Green Deal will not be is to ensure that all EU policies WTO rules. achieved by Europe acting alone; contribute to the climate neu- the EU is to use its influence, trality objective and that all sec- Clean and secure News from the EU and expertise and financial resources tors play their part. For example, To reach climate objectives in International Affairs Committee. Edited by TP Kennedy, director of to mobilise neighbours and by summer 2020, the commis- 2030 and 2050, increased decar- education, Law Society of Ireland partners to join it on a sustain- sion will issue an impact-assessed bonisation of the energy system gazette.ie Law Society Gazette March 2020 Eurlegal ANALYSIS 63

is a must. The production and Full mobilisation of industry expected to increase regulatory use of energy across economic is critical to achieve a climate- and non-regulatory mechanisms sectors accounts for more than neutral and circular economy. to tackle false green claims. Fur- 75% of EU GHG emissions. Transformation of an industrial ther legislation and guidance on The power sector will have to sector takes 25 years so, to be green public purchasing is to be be largely based on renewable ready for 2050, decisions and proposed, with public authorities FULL sources, complemented by a actions need to be made in the expected to take a lead role. Mea- MOBILISATION rapid phase-out of coal and the next five years. In March 2020, sures to tackle over-packaging decarbonisation of gas. Offshore the commission will launch an and waste generation are also on OF INDUSTRY wind energy is to be increased. EU industrial strategy to address the cards. In addition, the need Smart integration of renew- the twin challenge of green and for the supply of sustainable raw IS CRITICAL ables, energy efficiency, and digital transformation. A key materials is recognised, as well as TO ACHIEVE other sustainable solutions are aim is to stimulate the develop- ‘climate and resource frontrun- a focus. Energy poverty will be ment of lead markets for climate ners’ to develop the first com- A CLIMATE- addressed. Increased cross-bor- neutral and circular products. mercial applications of break- der and regional cooperation are New business models centred through technologies in key NEUTRAL AND expected. The commission will on renting and sharing goods industrial sectors by 2030. CIRCULAR ensure that all relevant legisla- and services are expected to The commission is set to rig- tion is rigorously enforced. emerge. The commission is also orously enforce the legislation ECONOMY THE BUSINESS OF WELLBEING SUMMIT

LEARN ABOUT WHY IT MAKES GOOD BUSINESS SENSE TO INVEST IN EMPLOYEES’ WELLBEING AND MENTAL HEALTH

WHEN: 23 April 2020 between 9.30am and 4.15pm

WHERE: The Presidents’ Hall, Law Society of Ireland

CPD HOURS: 6 Management and Professional Development Skills (by Group Study)

THE SUMMIT WILL EXPLORE: • Employers legal obligations to prevent, manage and deal with employee work related stress • The business case for professional wellbeing - why wellbeing pays for you, your firm and your clients • Guidance for best practice in supporting wellbeing in the workplace • How to develop a Professional Wellbeing Charter for the profession

Chairperson: Michele O’Boyle, President, Law Society of Ireland Speakers: Michelle Ní Longáin, Partner, Byrne Wallace Solicitors, Dublin Kate Kidd, Human Resources Director for Workhuman, Dublin

Guy Setford, CEO, Setfords Solicitors, England Kayleigh Leonie, Trustee of LawCare/Author of the Guidance on Supporting Wellbeing in the Workplace, England Richard Martin, Director, Byrne Dean, England Katie da Gama, Business & Executive Coach and Leadership Development Consultant, Dublin

MAKE A BOOKING For full programme details and to book online visit: BOOK NOW www.lawsociety.ie/WellbeingSummit Contact a member of the Law Society Finuas Skillnet team on ph 01 8815727 or email [email protected]

Wellness Summit Ad. for Gaz March 20 2.indd 1 17/02/2020 12:50 gazette.ie Law Society Gazette March 2020 Eurlegal ANALYSIS 65

related to the energy perfor- mance of buildings. This starts with an assessment in 2020 of member states’ national long- term renovation strategies. The commission will also explore the possibility of including emissions from buildings in European emissions trading and will review the Construction Products Regula- tion (305/2011), as well as start a new initiative on renovation in 2020. A 90% reduction in transport emissions is required by 2050 if climate neutrality is to be THE BUSINESS OF achieved. A strategy for sustain- able and smart mobility is due to be launched by the commis- WELLBEING SUMMIT sion in 2020. Aspects expected to form part of this strategy include multimodal transport, automated and connected multimodal LEARN ABOUT WHY IT MAKES GOOD BUSINESS SENSE TO INVEST mobility, with price of transport to reflect its impact on the envi- IN EMPLOYEES’ WELLBEING AND MENTAL HEALTH ronment and health. A ramp-up of production and deployment of WHEN: 23 April 2020 between 9.30am and 4.15pm sustainable alternative transport Wind turbine blades, ironically, aren’t recyclable – they go into landfill fuels is anticipated. WHERE: The Presidents’ Hall, Law Society of Ireland egy. All EU policies are expected the Invest EU Fund, and devel- Farm to fork to contribute to preserving and opment of a Sustainable Europe CPD HOURS: 6 Management and Professional Development Skills (by Group Study) The new ‘farm to fork’ strategy restoring Europe’s ‘natural’ capi- Investment Plan. National bud- to be presented by the commis- tal. For example, ‘Farm to Fork’ gets and tax reforms will also THE SUMMIT WILL EXPLORE: sion in spring 2020 is aimed at will address pesticide and fertil- play a key role, with State aid establishing European food as iser use. With oceans increas- guidelines to be revised by 2021. • Employers legal obligations to prevent, manage and deal with employee work related stress the global standard for sustain- ingly recognised in mitigating Research and innovation will • The business case for professional wellbeing - why wellbeing pays for you, your firm and your clients ability. New opportunities for and adapting to climate change, be supported by the Horizon all operators in the food value a sustainable ‘blue economy’ will Europe programme. Education • Guidance for best practice in supporting wellbeing in the workplace chain are foreseen. European play a central role in alleviating and training is also on the fund- • How to develop a Professional Wellbeing Charter for the profession farmers and fishermen will be demands on land resources and ing schedule. key to managing this transition. tackling climate change. The EU aims to develop a Member states’ national stra- In 2021, the commission stronger ‘green deal diplomacy’, Chairperson: Michele O’Boyle, President, Law Society of Ireland tegic plans for agriculture are will also adopt a zero-pollution focused on convincing and sup- Speakers: Michelle Ní Longáin, Partner, Byrne Wallace Solicitors, Dublin predicted to fully reflect this action plan for air, water and soil. porting others to promote more TO TRANSFORM Kate Kidd, Human Resources Director for Workhuman, Dublin strategy, expecting to lead to use It is accepted that the EU needs sustainable development, and it of sustainable practices, such as to better monitor, report, pre- plans to mobilise all diplomatic THE EU’S Guy Setford, CEO, Setfords Solicitors, England precision agriculture, organic vent and remedy pollution from channels to this end. At the same Kayleigh Leonie, Trustee of LawCare/Author of the Guidance on Supporting Wellbeing in the Workplace, England farming, agro-ecology, agro-for- air, water, soil and consumer time, it recognises that game- ECONOMY FOR A estry and stricter animal welfare products. changing policies only work Richard Martin, Director, Byrne Dean, England standards. if citizens are fully involved in SUSTAINABLE Katie da Gama, Business & Executive Coach and Leadership Development Consultant, Dublin Essential services such as food, Funding designing them. Consequently, FUTURE, fresh water, clear air, and shel- To achieve the ambitions of the EU citizens are seen to be and ter are provided by ecosystems. Green Deal, significant invest- remain a driving force of the CONSISTENT USE MAKE A BOOKING Helping to regulate the cli- ment is needed. Various mecha- transition that is unfolding. By OF ALL POLICY For full programme details and to book online visit: mate, they also mitigate natural nisms are proposed to address March 2020, the commission will disasters, pests and diseases. By this, including specific revenue launch a European climate pact www.lawsociety.ie/WellbeingSummit LEVERS WILL BOOK NOW March 2020, the commission streams from the EU budget, to focus on ways to engage with Contact a member of the Law Society Finuas Skillnet team on ph 01 8815727 or will publish a biodiversity strat- an allocation of at least 30% of the public on climate action. PREVAIL email [email protected]

Wellness Summit Ad. for Gaz March 20 2.indd 1 17/02/2020 12:50 FIGHTING HOMELESSNESS IN IRELAND AND CALCUTTA FIGHTING HOMELESSNESS IN IRELAND AND CALCUTTA FIGHTING HOMELESSNESS IN IRELAND AND CALCUTTA

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Calcutta Run Ad. for Gaz March 20 2.indd 1 21/02/2020 13:22 FIGHTING HOMELESSNESS IN IRELAND AND CALCUTTA FIGHTING HOMELESSNESS IN IRELAND AND CALCUTTA gazette.ie Law Society Gazette March 2020 Council reports BRIEFING 67 FIGHTING HOMELESSNESS IN IRELAND AND CALCUTTA REPORT OF LAW SOCIETY COUNCIL MEETING 6 DECEMBER 2019 Motion: professional “That this Council approves the of the proposed change to the effect • Report back to the Council with indemnity insurance amendment of Council regulation that members shall have the option recommendations periodically.” “That this Council approves the 37 by the addition of the Money- to ‘opt-out’ of receiving the hard Solicitors Professional Indem- Laundering Reporting Committee copy directory in 2020 and shall Proposed: Flor McCarthy nity Insurance (Amendment) to the list of regulatory committees be required to ‘opt-in’ to continue Seconded: Keith Walsh Regulations 2019.” on which the president, senior vice- receiving a hard copy directory CALCUTTA Proposed: Barry MacCarthy president and junior vice-president from 2021 onwards. The Society Following a detailed presentation CALCUTTA Seconded: Bill Holohan are in. shall develop a digital version of by Flor McCarthy, the Council RUNCALCUTTA Proposed: Martin Crotty the directory with all of the infor- unanimously approved the main The Council considered and Seconded: Christopher Callan mation in the current directory for elements of the motion, with RUN approved draft PII regulations electronic delivery to all members a substantial majority also in 2020RUN required to deal with issues aris- The Council agreed that it was by the 2021 renewal. The president favour of a transition to a ‘digi- 2020 ing following on the introduc- appropriate to add the Money- shall appoint an Environmental tal by default’ version of the Law THE LEGAL FUNDRAISER tion of LLPs and legal partner- Laundering Reporting Com- and Sustainability in Practice Task Directory by the 2021 practising 2020THE LEGAL FUNDRAISER ships. The regulations would mittee to the list of standing Force to develop a policy and strat- certificate renewal, preceded by a THE LEGAL FUNDRAISER exclude legal partnerships from committees that the president, egy on environmental sustainability prominent notice issuing with the the assigned risks pool and the the senior vice-president and for the Society (and review, update 2020 renewal advising members run-off fund, as these would be the junior vice-president should and consolidate any existing policies that they would have the option covered by the Legal Services not be ex-officio members of, in and strategies in this area) and in to opt-out of receiving the hard- Regulatory Authority regula- view of the regulatory nature particular to consider and decide copy directory in 2020 and would tions, and provide a system that of the functions of the Money- whether and, as appropriate, how be required to opt-in to continue allowed LLPs to be able to avail Laundering Reporting Commit- best the Society should: receiving a hardcopy directory of the assigned risks pool and tee, which were comparable to • Highlight and promote the exist- from 2021 onwards. the run-off fund, while main- the functions of the other stand- ing work being done by the Society taining the fund’s viability and ing committees provided for in in the area of environmental sus- Motion: Practising Certificate integrity. Council regulation 37. tainability and to coordinate, sup- Regulations 2019 port and enhance this, “That this Council approves the Motions: delegated functions “That this Council approves the • Provide leadership and visibility Solicitors’ Practising Certificate “That this Council approves the amendment of Council regulation on the issue of environmental sus- Regulations 2019 and the Regis- amendment of Council regulations 52 to delegate the authority for tainability for the profession and tered European Lawyers Qualify- 44, 45 and 46 to delegate appropri- signing and sealing of contracts of the wider community in which ing Certificate Regulations 2019.” ate powers, arising from the com- employment to the administrative the profession and its members Proposed: Imelda Reynolds mencement on 7 October 2019 of subcommittee of the Finance Com- play an influential role, Seconded: Christopher Callan provisions of the Legal Services mittee by the insertion of an addi- • Provide guidance and practical SATURDAY 23 MAY Regulation Act 2015, to the Regu- tional subsection: support to members of the pro- Following a presentation from lation of Practice Committee under (6) Signing and sealing of contracts fession and to firms in enabling Imelda Reynolds, the Council SATURDAYLaw Society of Ireland, Blackhall23 MAY Place regulations 44 and 45 and to a of employment.” them to take action on environ- approved the regulations, which SATURDAYLaw Society of Ireland, Blackhall23 MAY Place Proposed: Christopher Callan mental sustainability, contained a number of amend- SIGN UP HERE: WWW.CALCUTTARUN.COM senior designated officer of the Soci- Law Society of Ireland, Blackhall Place ety under regulation 46.” Seconded: Paul Keane • Identify, support and develop the ments that were intended to SIGN UP HERE: WWW.CALCUTTARUN.COM Proposed: Imelda Reynolds practice areas and professional make the regulations simpler and SIGN UP HERE: WWW.CALCUTTARUN.COM Seconded: Martin Crotty The Council approved the del- opportunities for members in the clearer, to remove the SMDF egation of authority to sign and areas of the environment and sus- contribution from the fees, and to The Council noted that the seal contracts of employment in tainability, deal with the already-commenced 5 or 10K RUN/WALK proposed additions to Coun- the administrative subcommittee • Promote best practice in the area provisions and the anticipated TENNIS5 or &10 SOCCERK RUN/ | FINISH LINEWALK FESTIVAL cil regulations 44, 45 and 46 of the Finance Committee. of environmental sustainability commencement of provisions of TENNIS5 or &10 SOCCERK RUN/ | FINISH LINEWALK FESTIVAL reflected the new powers and within the Society, its Council, the Legal Services Regulation Act TENNIS & SOCCER | FINISH LINE FESTIVAL functions conferred upon the Motion: Environmental and committees and other bodies and 2015. Following a presentation Society by the commencement Sustainability in Practice Task the profession as a whole and to from Mr Callan, the Council of provisions of the Legal Ser- Force consider and make recommenda- approved the practising certificate CORK CALCUTTA RUN – 24 MAY vices Regulation Act and approved “That this Council agrees that the tions that would encourage and fee for 2020, which was main- CORK CALCUTTA RUN – 24 MAY the proposal that those pow- Law Directory shall transition enable positive action in the area, tained at the 2019 rate of €2,650. CORK CALCUTTA RUN – 24 MAY ers and functions be delegated to ‘digital by default’ by the 2021 • Consider the need for a perma- to the Regulation of Practice practising certificate renewal. A nent committee of the Society in PII renewal period Follow Us | Committee and the Registrar of prominent notice shall go with the the area of environment and sus- Barry MacCarthy reported on Follow Us | Solicitors. 2020 renewal advising members tainability in practice. a number of aspects of the PII Follow Us |

Calcutta Run Ad. for Gaz March 20 2.indd 1 21/02/2020 13:22

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Calcutta Run Ad. for Gaz March 20 2.indd 1 21/02/2020 13:22 68 BRIEFING Council reports March 2020 Law Society Gazette gazette.ie

renewal process. He noted that cant number of calls to the PII ing competition in the market, 2019 numbers 94.43% of firms had complied helpline. Two particular issues particularly for sole practitioners, Christopher Callan reported with the requirement to provide had arisen that were the principal the level of broker commission that it was expected that the final confirmation of PII cover through features of calls to the helpline – being charged, and addressing practising certificate numbers the Law Society’s online portal. increased premiums and cyberse- the proposition being advanced for 2019 would be just short of He noted also that the market curity. Mr MacCarthy also out- by the insurers that conveyancing 12,000 (1,000 or 10% more than had been affected by the loss of lined a number of initiatives that was high risk. 2018), with Brexit practising cer- Axis in 2019 and no new insur- were planned for 2020, in particu- tificates accounting for 550 of ers had joined the market for the lar to try to increase the number LSRA 2015 these. Membership subscriptions 2019/2020 indemnity period. The of providers in the market. As required under section 69 would finish the year at 13,000 Society had conducted an exten- For the coming year, Council of the 2015 act, the Council and followed the same trend as sive communications programme members urged that the Society approved a list of proposed nomi- the practising certificate numbers. connected with PII, had published would place an increased focus nations to the Complaints Com- Final expected admissions for the a PII guide to renewal 2019/2020, on the obstacles to attracting new mittee of the Legal Services Reg- year would be 2,400, including and had responded to a signifi- insurers into the market, improv- ulatory Authority. 2,000 Brexit admissions.

REPORT OF LAW SOCIETY COUNCIL MEETING 24 JANUARY 2020 Law Reform Commission cies of the legal professions. He release issued by the Society in international competition into issues paper confirmed that the statistical response to the publication of Ireland’s uncompetitive and The Council discussed the Law information was currently being private motor insurance data dysfunctional motor-insurance Reform Commission’s issues collated, and the 9% increase by the Central Bank, which market. paper on capping damages in in practising certificates arising welcomed the fact that the data personal injuries actions, which from Brexit would be included, stripped away the insurance- Admissions and students was published on 10 December which certainly demonstrated an industry propaganda to reveal Carol Plunkett reported that 2019 with a response date of 31 openness by the Society and the that most insurance premiums there had been 2,381 admissions January 2020. The paper iden- profession to increase the num- had risen by 42%, even though, during 2019, of which 1,934 tified four possible legislative bers within the profession. in the same period, claims had were foreign lawyers, 1,836 of models for capping damages, In addition, entry to the pro- fallen by 2.5%. In addition, the those being English solicitors. each of which would be consid- fession did not require a law data revealed that the industry There were 501 students attend- ered in detail by a working group degree and was open to all who was generating an operating ing the current PPC, the highest established by the Society for this achieved a certain standard. The profit of 9%, while the aver- number for more than a decade. purpose, and a submission would Council also noted that the Soci- age level of profit in Britain The Hybrid PPC was up-and- be made before the deadline. ety had recently introduced a was 5%. running, with 46 students on new Hybrid Professional Prac- The Society had urged that the course. The profile of the LSRA report on admission tice Course in order to facilitate the Government would switch participants was interesting – policies the qualification of an increased its strategy from pressuris- the gender breakdown was 65% Paul Keane noted the contents number of solicitors. ing the Judicial Council to female and 35% male, while the of a request from the LSRA for reduce awards to the victims bulk of students were aged over information in relation to its Insurance and injuries claims of accidents and, instead, focus 30, with 50% coming from out- annual report on admission poli- The Council noted the press on using the data to attract side Dublin.

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Library ad Gazette Oct 2015 chosen.indd 1 17/09/2015 13:04 gazette.ie Law Society Gazette March 2020 Practice notes BRIEFING 69

CONVEYANCING COMMITTEE MAPPING SEARCH PRIOR TO CONTRACT Practitioners are encountering encroach on the property that is tion) and the purchaser (when flict with registered bounda- problems when an application the subject of the first registration instructing their surveyor to ries of adjoining property. for first registration of an unreg- application. approve the map produced by istered title is lodged with the These difficulties can be iden- the vendor) also asks the sur- In many cases, it is anticipated PRA, and it then transpires that tified in advance of contracting veyor to check: that the position may be con- the property is already registered to purchase if the vendor (when • That the title is not already firmed by the surveyor, by check- or that the boundaries of adjoin- instructing their surveyor to pre- registered, and ing the Land Registry’s digital ing property already registered pare the map for first registra- • Whether the boundaries con- map on landdirect.ie.

GUIDANCE AND ETHICS COMMITTEE CHARGING CLIENTS SEEKING THEIR FILES Charging where a firm is solicitor incurs administration simply to be held until that firm new firm looking for the file, a fee still trading costs as a result of this decision by receives confirmation of instruc- for dealing with this request may A Guide to Good Professional Conduct the client. tions from each individual cli- be then be charged. for Solicitors (3rd edition) provides ent. The retiring solicitor should It is recommended that solici- as follows at para 10.8: “Where Charging where a firm closes notify all clients of the closure tors should notify clients, at a solicitor is required to make a When a firm closes, and the good- and advise clients of their options. the time of the closure of the search for papers and documents, will in the firm, or in various parts The retiring solicitor has no firm, that if they do not take up or to schedule documents of a for- of the firm (batches of files), is authority to instruct the second their files or instruct the new mer client, he may charge a rea- sold or transferred to another firm in any clients’ affairs. firm within a specified period sonable administration fee for the firm, there is no basis on which it If the client of the former prac- (six months being a reasonable work involved” and “when a file would be appropriate for a fee to tice does not want to instruct that period), a charge for storing/dis- is being transferred, if the solicitor be charged when clients look for firm, their files must be released tributing the file will be incurred. wishes to copy the file to comply their files at the time of the clo- to them. The files do not belong with the Solicitors Accounts Regula- sure. The firm had entered into a to the second firm until the cli- Liens tions, or for other administrative contract for legal services with the ent instructs that firm. The cli- Irrespective of whether the files purposes, this must be done at the client and the firm is now with- ent should not be charged a fee are transferred to a new firm or solicitor’s own expense.” drawing from that contract and to get back their own file/client the retiring solicitor winds up the If a former client of a firm closing the firm. In other words, money. practice him/herself, the exercise wishes to take up their file, an the solicitor has left the client, the of a lien on the client’s file is not administration fee may be charged client has not left the solicitor. Wind-ups usually appropriate. This issue by the firm where there are costs If a practice is not sold or trans- should be decided on a case-by- incurred by the firm in the trans- Transfer of files to a new firm ferred, it must be wound up. This case basis. A solicitor’s lien on files fer of the file. The client has The files and client moneys are involves the principal/partners is limited to the solicitor’s right to chosen to leave the solicitor. The transferred to the new firm(s), writing to the current clients of have possession. Once a solicitor the practice, informing them of ceases to practise, or is suspended the closure and asking them to from practice, the basis on which GUIDANCE AND ETHICS COMMITTEE take up their file and client mon- the solicitor had possession of eys or to nominate a new solici- the files no longer exists and the RIGHT OF SOLICITOR tor to do so. No fee should be solicitor must divest himself of charged at that time. The solicitor all practice material immediately. TO EXERCISE A LIEN is withdrawing from the contract Fees for work properly done can The Guidance and Ethics Com- determination as to whether or for legal services, not the client. be billed by the solicitor, and the mittee wishes to draw the profes- not a passport can be the subject debts due can be collected by the sion’s attention to the ex tempore of a retaining lien, as that ques- Charging clients who do not solicitor, or on his behalf, in the judgement of the President of tion did not come before him. respond to invitation to take normal way. the High Court in the case of He did, however, make it clear up files This practice note applies both Aderonke Adenekan and Another that there are circumstances in If a client who has received an to practices closed following reg- v Ashimedua Okonkwo ([2019] which the exercise of a retaining invitation to take up their files ulatory action taken by the Law 25 SA). This case concerned the lien may be unreasonable and, in or instruct the new firm does Society and to practices closed right of a solicitor to exercise a such circumstances, he had no not respond within a reasonable following a decision to close lien over a passport. hesitation in ordering the return period, but subsequently contacts made by the principal or partners The president did not make a of the passport forthwith. either the retiring solicitor or the of the firm. 70 BRIEFING Guidance notes March 2020 Law Society Gazette gazette.ie

TECHNOLOGY COMMITTEE SECURE EMAIL SYSTEMS/ENCRYPTION Reports of cyber-attacks on firms countrywide are becom- PKI IN OPERATION ing all too frequent. The source of cyber-attacks is predominately through email ‘phishing’. Ciphertext used Phishing occurs where the Plaintext for transmission Plaintext recipient firm receives fraudu- lent communications that appear to come from a reputable source. Sender Encrypt Decrypt Recipient The purpose of these emails is to obtain sensitive data, such as credit-card and login informa- tion, or to install malware on the recipient’s system. Recipient’s Recipient’s These attacks can result in public key private key financial loss for firms and seri- ous data breaches. There are a number of solu- The private key is a unique key To assist practitioners, we have this system is totally pointless tions to protect email data. In generated when a connection is set out (below) a non-exhaustive if the password encrypting the this note, we briefly discuss two made, and it is kept secret. When list of secure email suppliers, plus email is disclosed in the same solutions: secure email systems, communicating, the client uses the key features of each supplier. email, or in a later email. and encrypting email attach- the public key to encrypt and These are not recommendations, There are different methods ments. decrypt, and the server uses the and we suggest that practitioners of encrypting Word, depending private key. carry out their own due diligence on which version you are using. Secure email systems in respect of these and other With Word 2010/2013, you Secure email systems require the Due diligence suppliers. encrypt a Word document by fol- sender and recipient to install Secure email software tends to lowing these steps: the same end-to-end encryption be cumbersome to download, Encrypted attachments 1) Click ‘file’, software product. Encryption and both parties need to be on Sending encrypted attachments 2) Click ‘info’, software prevents the email from board to download the same may be the easier of the two solu- 3) Click ‘protect document’, being intercepted. Encryption is system. tions for practitioners. However, 4) Encrypt with password. a security method of protecting data sent between parties. Keys are used to encode or lock data SECURITY SUPPLIERS KEYS FEATURES (encrypt). Encoded data can only be unlocked or decoded by the Barracuda Provides a range of products, including all-in-one security backup and encryption key. archiving, AI protection from spear-phishing, and secure archiving A secure email service is the easiest way to keep emails pri- Smart Lockr Offers a secure mailing option. It permits the emails to be encrypted and vate. Not only do they guaran- tracked. Pricing for the above two is user dependent, and they insist on an tee secure and encrypted email, evaluation before quoting they protect anonymity. If even more anonymity is required, the Sprambrella An anti-phishing and anti-impersonation piece of software that filters all email account should be set up inbound emails for spam viruses, malware, phishing attacks, and more. It behind a free anonymous web examines hundreds of thousands of attributes in every email to accurately proxy server, or a virtual private detect text, image, and attachment-based spam or phishing emails network. ‘Public key infrastructure’ Tutanota Describes itself as the world’s most secure email service. It claims to have (PKI) works by using two differ- end-to-end encryption with complete encryption – that is, subject, body and ent cryptographic keys: a public all attachments. It is an open-source software based in Germany. Business use key and a private key. The keys starts at €12 per year, and ranges up to €60, depending on requirements lock (encrypt or decrypt) the data that is transmitted. The pub- Proton Mail Offers secure email, based in Switzerland. It boasts status security and lic key is available to any user neutrality, and also end-to-end encryption. Proton Mail is also open source. that connects with the website. gazette.ie Law Society Gazette March 2020 Guidance notes BRIEFING 71

Practitioners should keep the at least one uppercase letter • Snail-mail the password to email system. It requires buy-in following in mind when encrypt- (A-Z), at least one lowercase your recipients, and from both parties. ing attachments: letter (a-z), at least one num- • Never include the password At the very least, practitio- • Follow the steps to encrypt ber (0-9), and at least one sym- in the email containing the ners should consider encrypt- the email attachment on your bol (such as !@#$%^&*_-+=), attachment. ing attachments containing Word document, • Call the recipients directly and sensitive data. Passwords • Use a strong password with at give them the password, or Summary should be treated as sacred. least eight characters, • Text the password to the recip- Both email sender and recipient Never send passwords out with • Passwords should contains ients’ mobile phones, or need to install the same secure documents.

ALTERNATIVE DISPUTE RESOLUTION COMMITTEE BINDING NATURE OF THE COURT OBLIGATION TO REFER A DISPUTE TO ARBITRATION The recent judgment of Bar- was whether there was a dispute J in K&J Townmore Construction Findings niville J in XPL Engineering between the parties under the Ltd v Kildare and Wicklow Edu- The court found that, in respect Limited v K & J Townmore Con- arbitration agreement. cation and Training Board ([2018] of that part of its claim that XPL struction Limited ([2019] IEHC IEHC 770). had sought to pursue in the pro- 665) provides guidance as to Applicable principles Fourth, the burden rests on ceedings, a dispute between the the binding nature of the court Barnville J set out the principles the party seeking the reference parties exists, which is the sub- obligation to refer a dispute to to be applied in that regard. to arbitration to provide some ject of an arbitration agreement arbitration under the Arbitra- First, it is necessary to look at basis for the court to hold that a to which Townmore and XPL tion Act 2010. the provision of the arbitration ‘dispute’ is in existence between are parties and, as a consequence, K&J Townmore Construc- agreement in which the term the parties. If that party does the court is bound to accede to tion Limited engaged XPL ‘dispute’ is to be found and to so, then the burden shifts to the Townmore’s application and make Engineering Limited as a construe that term in the con- party opposing the reference an order under article 8(1) of the subcontractor on two projects text of the arbitration agreement on the grounds of the alleged model law referring the parties to under two separate contracts as a whole. absence of a dispute to persuade arbitration in respect of that part of (namely, the ‘Stanhope’ and the Second, a broad meaning the court that no dispute exists. XPL’s claim. As regards the balance ‘St Etchen School’ contracts), should be given to the term ‘dis- Fifth, in the context of an of the claims that XPL initially both of which contained arbi- pute’, having regard to the fact arbitration agreement, the court sought to maintain in the proceed- tration clauses. that the parties have chosen to should be willing readily to infer ings, the court found that article XPL contended that it was use that term in the context of that a dispute exists, and should 8(1) of the model law also requires owed money from Townmore a dispute-resolution provision in readily find or infer that such that they should be referred to under both contracts and issued their agreement. a dispute exists in the absence arbitration, having regard to the a summary summons. Town- Third, the court should inter- of an acceptance of liability in terms of the relevant arbitra- more applied to have the mat- pret ‘dispute’ in accordance respect of the relevant claim. A tion agreements. While XPL had ter referred to arbitration under with the principles set out in dispute should readily be found not formally consented to those article 8(1) of the UNCITRAL Investor Compensation Scheme to exist where it is reasonable to claims being referred to arbitration Model Law on International Com- Ltd v West Bromwich Building infer that the claim is not admit- under the relevant agreements, mercial Arbitration (as incorpo- Society ([1998] 1 WLR 896), as ted. and had raised the possibility of rated into Irish law by section approved by the Supreme Court Sixth, the court should lean the parties mediating in respect of 6 of the Arbitration Act 2010), in (among other things) Analog in favour of finding that a ‘dis- those claims, the court concluded pursuant to which the court has Devices BV v Zurich Insurance pute’ exists in circumstances that article 8(1) of the model law a mandatory obligation to refer Company ([2005] 1 IR 274), and where the parties disagree as to requires the parties to be referred the parties to arbitration unless in accordance with the fur- whether a dispute exists at all. to arbitration in respect of them. it finds that the agreement is ther principles applicable to Seventh, in determining Barniville J observed, however, null and void, inoperative, or the interpretation of arbitra- whether a dispute exists for that he would discuss with counsel incapable of being performed. tion agreements set out by the the purposes of an arbitration the terms of any order that might As XPL did not contend that House of Lords in Fiona Trust agreement and a reference to be made in that regard. The court the St Etchen arbitration agree- & Holding Corporation & ors v arbitration under article 8(1) of also made clear that it was in no ment was “null and void, inop- Privalov & ors ([2007] 4 All ER the model law, the court should way precluding the parties from erable or incapable of being 951), and the Irish decisions not get involved in the exercise seeking to mediate those claims performed” within the meaning which have cited that case with of deciding whether the position or, indeed, any of XPL’s claims. On of article 8(1), the main issue for approval (which were referred of one party is statable, credible the contrary, it would positively the determination of the court to and summarised by Barniville or tenable. encourage mediation. LATE APPLICATIONS NOW DIPLOMA CENTRE ACCEPTED

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Diploma Centre full page Gazette ad March 2020_chosen.indd 1 13/02/2020 15:48 gazette.ie Law Society Gazette March 2020 Regulation BRIEFING 73 SOLICITORS DISCIPLINARY TRIBUNAL

REPORTS OF THE OUTCOMES OF SOLICITORS DISCIPLINARY TRIBUNAL INQUIRIES ARE PUBLISHED BY THE LAW SOCIETY OF IRELAND AS PROVIDED FOR IN SECTION 23 (AS AMENDED BY SECTION 17 OF THE SOLICITORS (AMENDMENT) ACT 2002) OF THE SOLICITORS (AMENDMENT) ACT 1994

In the matter of Eamonn within six months of that date, in Regulations 2014 by furnish- Michael Doyle (third-named Moloney, solicitor, for- breach of regulation 26(1) of the ing to the Law Society his respondent solicitor) merly practising as Eamonn Solicitors Accounts Regulations 2014 accountant’s reports for finan- On 13 November 2019, the Moloney & Co, Solicitors, 1/2 (SI 516 of 2014). cial years ended 31 July 2017 Solicitors Disciplinary Tribunal Anglesea Street, Cork, and in and 31 July 2018 respectively, found the respondent solicitors the matter of an application 2018/DT 79 • The respondent solicitor pay guilty of professional miscon- by the Law Society of Ireland On 31 October 2019, the Solici- the measured costs of the duct in that they failed to ensure to the Solicitors Disciplinary tors Disciplinary Tribunal found Solicitors Disciplinary Tribu- that there was furnished to the Tribunal and in the matter of the respondent solicitor guilty of nal proceedings and the High Law Society a final reporting the Solicitors Acts 1954-2015 misconduct in his practice as a Court proceedings in the total accountant’s report, in breach of [2018/DT79; 2019/DT23; and solicitor in that he failed to ensure amount of €5,874.36. regulation 33(2) of the Solicitors High Court record 2019/135 that there was furnished to the Accounts Regulations 2014 (SI 516 SA] Society an accountant’s report for In the matter of Mark Edmund of 2014). Law Society of Ireland the year ended 31 July 2017 within Doyle, Mark Newman, and The tribunal ordered that the (applicant) six months of that date, in breach Michael Doyle, formerly respondent solicitors: LATE Eamonn Moloney (respondent of regulation 26(1) of the Solicitors practising under the style of • Stand advised and admonished, APPLICATIONS NOW solicitor) Accounts Regulations 2014. Actons Newman, Newmount • That the first-named respond- DIPLOMA CENTRE ACCEPTED The tribunal ordered that the House, 22-24 Lower Mount ent solicitor pay a sum of €606 2019/DT 23 matters go forward to the High Street, Dublin 2, and in the as a contribution towards the On 24 October 2019, the Solici- Court and, on 13 January 2020, matter of the Solicitors Acts whole of the costs of the appli- Leaders in legal education with professional focus and practical insight tors Disciplinary Tribunal found the High Court ordered that: 1954-2015 [2018/DT94] cant, the respondent solicitor guilty • The respondent solicitor be Law Society of Ireland • That the second-named res- Flexible on-site and online CPD recognised courses to suit a busy schedule of misconduct in his practice suspended from practice as a (applicant) pondent solicitor and the third- as a solicitor in that he failed to solicitor with immediate effect Mark Edmund Doyle (first- named respondent solicitor COURSE NAME DATE FEE ensure that there was furnished to until such time as he has fully named respondent solicitor) each pay a sum of €303 as a the Society an accountant’s report complied with the provisions Mark Newman (second-named contribution towards the whole Certificate in Company Secretarial Law and Practice 4 February 2020 €1,550 for the year ended 31 July 2018 of the Solicitors AccountsTAKE respondent FIVE… solicitor) of the costs of the applicant.

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Keep up to date with recent judgments, legislation Diploma in Employment Law 14 February 2020 €2,500 and topical journal articles by scanning the library’s LawWatch newsletter every week. Certificate in Data Protection Practice 26 February 2020 €1,550 Sent to all members, it takes just five minutes to stay TAKEinformed. FIVE…Enquiries to: Diploma in Compliance and Risk Management 27 February 2020 €2,500 [email protected] or tel: 01 672 4843.

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Library ad Gazette Jan_Feb 2017.indd 1 25/01/2017 15:09 Certificate in Commercial Contracts 7 March 2020 €1,550 Keep up to date with recent judgments, legislation Certificate in Advanced Negotiation 13 March 2020 €1,550 and topical journal articles by scanning the library’s LawWatch newsletter every week. Certificate in Public Procurement 31 March 2020 €1,550 Sent to all members, it takes just five minutes to stay Professional Doctorate in Law 15 May 2020 €5,000 informed. Enquiries to: [email protected] or tel: 01 672 4843. CONTACT DETAILS e: [email protected] t: 01 672 4802 w: www.lawsociety.ie/diplomacentre

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Contact Kuda at [email protected] or This service is completely confidential and totally call us at 01 8873600. independent of the Law Society Also read more at www.flac.ie/getinvolved gazette.ie Law Society Gazette March 2020 75 PROFESSIONAL NOTICESNOTICES

WILLS Boylan, Anton, (deceased), RATES late of 25 St Cronin’s (otherwise St Cronan’s) Court, Swords, Co Dublin, and formerly of The Cot- PROFESSIONAL NOTICE RATES tage, Burrow Road, Portrane, Co RATES IN THE PROFESSIONAL NOTICES SECTION ARE AS FOLLOWS: Dublin. Would any person having • Wills – €155 (incl VAT at 23%) knowledge of a will executed by Title deeds – 310 per deed (incl VAT at 23%) the above-named deceased, who • € died on 25 May 2018, please con- • Employment/miscellaneous – €155 (incl VAT at 23%) tact Nora Collier, Tallans Solici- HIGHLIGHT YOUR NOTICE BY PUTTING A BOX AROUND IT – €30 EXTRA tors, The Haymarket, Drogheda, Co Louth; DX 23009; tel: 041 ALL NOTICES MUST BE PAID FOR PRIOR TO PUBLICATION. CHEQUES SHOULD BE MADE PAY- 983 8708/9, fax: 041 983 9111, ABLE TO LAW SOCIETY OF IRELAND. Send your small advert details, with payment, to: Gazette email: [email protected] Office, Blackhall Place, Dublin 7, tel: 01 672 4828, or email: [email protected]. Deadline for April 2020 Gazette: 13 March 2020. For further information, contact the Gazette Buckley, Mary Veronica (oth- office on tel: 01 672 4828. erwise Ronnie), late of Buckley’s No recruitment advertisements will be published that include references to ranges of post-qualification Bar, Lower Road, Crosshaven, Co experience (PQE). The Gazette Editorial Board has taken this decision based on legal advice that indicates Cork, who died on 15 December that such references may be in breach of the Employment Equality Acts 1998 and 2004. 2019. Would any person having knowledge of the whereabouts of any will made by the above- named deceased please contact ing Lane, Rathfarnham, Dublin Leitrim, and formerly of 171 New Griffin, Hannah (deceased), late Killian O’Mullane, Murphy Eng- 16, who died on 18 November Cabra Road, Dublin 7, who died of Skenakilla, Castletownroche, lish & Co, Solicitors, ‘Sunville’, 2018. Would any person hav- on 21 December 2019. Would Mallow, Co Cork, who died on Cork Road, Carrigaline, Co Cork; ing knowledge of a will made by any person having knowledge of 11 November 2019. Would any tel: 021 437 2425, email: killian@ the above-named deceased please the whereabouts of a will made by person having knowledge of a murphyenglish.ie contact Patrick P O’Sullivan and the above-named deceased please will made by the above-named Co, Solicitors, 8 Herbert Street, contact Kelly & Ryan Solicitors, deceased please contact Fiona Burnham, Kathleen (deceased), Dublin 2; tel: 01 679 3539, email: Manorhamilton, Co Leitrim; O’Sullivan, David J O’Meara late of Sunset View, Gold Coast [email protected] tel: 071 985 5034, email: kieran. & Sons, Solicitors, Bank Place, Road, Dungarvan, Co Waterford, [email protected] Mallow, Co Cork; tel: 022 and formerly of 7 Otter Close, Davison, Mary Eleanor 21539, email: fiona.osullivan@ Bletchley, Milton Keynes, MK3 (deceased), late of Cathe- Fox, Teresa (deceased), late djomeara.ie 7QP, in the county of Bucking- rinestown, Leixlip, Co Kildare of Ferndene Nursing Home, ham, who died on 31 January who died on 7 January 2020. Deansgrange Road, Blackrock, Hyland, Liam (otherwise Wil- 2019. Would any person having Would any person having knowl- Co Dublin, who died on 1 March liam) (deceased), late of Lisheen knowledge of a will made by the edge of the whereabouts of a 2018. Would any person having Nursing Home, Stoney Lane, above-named deceased please will made by the above-named knowledge of the whereabouts Rathcoole, Co Dublin, and for- contact Frank Halley, MM Halley deceased please contact Patrick of any will made by the above- merly of 105 Lanndale Lawns, & Son, Solicitors, Presentation Ward & Co, Solicitors, Equity named deceased please contact Tallaght, Dublin 24. Would any House, Slievekeale Road, Water- House, Upper Ormond Quay, Dillon Solicitors, Unit 1A Nut- person having knowledge of a ford; DX 44013; tel: 051 874 073, Dublin 7; tel: 01 873 2499, email: grove Office Park, Rathfarnham, will made by the above-named email: [email protected] [email protected] Dublin 14; tel: 01 296 0666; deceased, who died on 21 June DX 272001 Nutgrove; email: 2019, or knowledge of any title Corry, Jane (deceased), late of 4 Dillon, Edel (née Earle) [email protected] deeds relating to the deceased’s Riverwood, Carleysbridge, Ennis- (deceased), late of 58 Chapelgate, corthy, Co Wexford. Would any St Alphonsus Road, Drumcon- person having knowledge of any dra, Dublin 9. Would any person will made by the above-named having knowledge of the where- deceased, who died on 21 Decem- abouts of any will made by the ber 2019, please contact Niamh above-named deceased, who died Moriarty & Co, Solicitors, Par- on 27 November 2019, please nell Road, Enniscorthy, Co Wex- contact FH O’Reilly and Com- ford; ref: 20/C.2/NM/SD; tel: pany, Solicitors, The Red Church, 053 923 7666, email: suzanne@ Phibsborough, Dublin 7; tel: niamhmoriarty.ie 01 830 3122, email: koreilly@ fhoreillyandco.com D’Arcy, Pauline (deceased), late of 19 Weavers Court, Cork Flynn, Laurence (orse Larry) Street, Dublin 8, and of Bloom- (deceased), late of 19 Millhill field Nursing Home, Stock- Lawns, Manorhamilton, Co EU & INTERNATIONAL AFFAIRS COMMITTEE STAGE INTERNATIONAL A PARIS 2020 OCTOBER – NOVEMBER 2020

Every year, the Paris Bar organises Candidates must: an International Stage in Paris, • Be qualified in Ireland and registered in the and invites a limited number of Law Society lawyers from each jurisdiction to • Have a good knowledge of French participate. The stage is a fantastic • Be under 40 years of age opportunity for lawyers to discover • Have insurance cover (for accidents and and practice French law in the heart damages). of Paris. Tuition is fully covered by the Paris Bar; The stage takes place during the months of candidates must be willing to cover other October and November, and entails: one month expenses (travel, accommodation, meals)1 attending classes at the l’Ecole de Formation du Barreau and one month of work experience in a Interested? law firm in Paris. The programme also includes a To apply, please send your CV and a letter visit to Brussels to the European institutions. explaining your interest in the stage (in both English and French) to Suzanne Crilly The Irish participant will be selected by the EU ([email protected]). & International Affairs Committee of the Law Society of Ireland. Application deadline: Friday, 13 April 2020.

1 The EU & IA Committee will sponsor the participant with €3,500.

Stage in Paris 2020 Gazette ad March 2020_chosen_male.indd 1 21/01/2020 10:26 gazette.ie Law Society Gazette March 2020 77 PROFESSIONAL NOTICESNOTICES

property both at 105 Lanndale O’Regan, Patricia (deceased), Lawns, Tallaght, Dublin 24, late of Glen Road, Monkstown, Require assistance Require assistance and Harristown, Deece Upper, Co Cork, who died on 30 April in Northern Ireland Rodanstown, Co Meath, please 2016. Would any person having in Northern Ireland for the purpose contact Messrs G Jones & Co, knowledge of the whereabouts for the purpose of litigation? Solicitors, Main Street, Car- of any will made by the above- of litigation? rickmacross, Co Monaghan; tel: named deceased please contact 042 966 1822, email: jdoherty@ Killian O’Mullane, Murphy Northern Ireland lawyers, gjones.ie English & Co, Solicitors, ‘Sun- NorthernKearney Ireland Law Group lawyers,, ville’ Cork Road, Carrigaline, Co areKearney interested Law in Group dealing, McHugh, William (deceased), Cork; tel: 021 437 2425, email: arewith interested all civil litigation in dealing late of 4 St Brendan’s Terrace, [email protected] withclaims all forcivil those litigation who claims for those who Coolock, Dublin 5, who died have suffered injury in MASSIVE haveNorthern suffered Ireland. injury in on 13 January 1983. Would any Quinn, Marian (née Conlan) Northern Ireland. person having knowledge of the (deceased), late of The Limes, OPPORTUNITY An arrangement of whereabouts of any will made by 128A Merrion Road, Ballsbridge, 50/50An arrangement is suggested. of IN GREYSTONES 50/50Please contact is suggested. us today the above-named deceased – in Dublin 4, and formerly of Sut- Please contact us today to discuss further. Pleaseto discuss contact further. us today particular, a will dated July 1977 ton, Dublin 13, who died on 13 Greystones office 028 7136to discuss2299 | 028 further. 9091 2938 028 7136 2299 | 028 9091 2938 and witnessed by Margaret Mor- July 2019. Would any person [email protected] 7136 2299 | 028 9091 2938 space to rent [email protected] [email protected] gan, law clerk, and Alice Leon- having knowledge of the where- kearneylawgroup.com Belfastkearneylawgroup.com | Derry | Dublin | London ard, typist, of 6 Grafton Street, abouts of any will made by the • Prime location in Belfast | Derry | Dublin | London Dublin 2 – please contact John above-named deceased please Greystones. Belfast | Derry | Dublin | London • High profile, ground floor, O’Connor, Solicitors, 168 Pem- contact Robert Plunkett, Plun- central location. broke Road, Ballsbridge, Dublin kett Kirwan & Co, Solicitors, 175 • 16m of prime large 4; tel: 01 668 4366, email: info@ Howth Road, Killester, Dublin window road frontage. johnoconnorsolicitors.ie 3; tel: 01 833 8254, email: rob@ • 1,300 sq feet commercial SOLICITORS’ plunkettkirwan.ie office space. PRACTICE Maguire, Jacqueline (de- • Close to DART and ceased), late of 2 St Brigid’s Ter- Young, Matthew (deceased), includes parking FOR SALE • Population of Greystones DUBLIN 1 race, Kells, Co Meath, who died late of Esker Rí Nursing Home, is 20,000 and growing. on 27 September 2019. Would Clara, Co Offaly, and formerly • Only four solicitor Solid and well-run any person having knowledge of of 33 The Priory, Kilcormac, Co practices in the town two-partner practice for sale EU & INTERNATIONAL AFFAIRS COMMITTEE the whereabouts of a will made by Offaly, who died on 30 Decem- centre. in Dublin city centre. the above-named deceased please ber 2019. Would any person Partners are willing to STAGE INTERNATIONAL A PARIS 2020 contact Thea Carolan, Nathaniel having knowledge of the where- Enquiries to Catriona Kelly consider a range of options. Lacy & Partners, Solicitors, Ken- abouts of any will made by the at McGovern Estates [email protected] CONTACT: Would you like OCTOBER – NOVEMBER 2020 lis Place, Kells, Co Meath; tel: above-named deceased please 01 287 7088 John Mulderrig at 046 928 0718, email: tcarolan@ contactto talk to someoneO’Donovan Mahon who understands? 01 492 9913 nlacy.ie, [email protected] Cowen Solicitors, William [email protected] Street,WouldWe have experience youTullamore, likeof life Co Offaly; in the law, and we know that Moore, Martin (Buddy) tel:atto all talk stages057 ofto934 their someone career, 1866, email: info@ Every year, the Paris Bar organises Candidates must: whopeople in understands? the legal community deceased, late of 36 Ballinteer odmcsolicitors.iesometimes need extra support an International Stage in Paris, • Be qualified in Ireland and registered in the with personal or professional issues Avenue, Dublin 16, who died We have experience of life IS YOUR CLIENT INTERESTED and invites a limited number of Law Society in the law, and we know that on 27 October 2019. Would any at all stages of their career, people in the legal community IN SELLING OR BUYING lawyers from each jurisdiction to • Have a good knowledge of French person having knowledge of the sometimes need extra support with personal or professional issues participate. The stage is a fantastic • Be under 40 years of age whereabouts of any will made by A 7-DAY LIQUOR LICENCE? opportunity for lawyers to discover • Have insurance cover (for accidents and the above-named deceased please Call our free, independent, confi dential Helpline on 1800 991 801 email: [email protected] and practice French law in the heart damages). contact Dillon Solicitors, Unit or go to www.lawcare.ie of Paris. 1A Nutgrove Office Park, Rath- web: www.liquorlicencetransfers.ie farnham, Dublin 14; DX 272001 Call our free, independent, Tuition is fully covered by the Paris Bar; confi dential Helpline on 1800 991 801 The stage takes place during the months of candidates must be willing to cover other Nutgrove; tel: 01 296 0666, email: or go to www.lawcare.ie Call: 01 2091935 October and November, and entails: one month expenses (travel, accommodation, meals)1 [email protected] attending classes at the l’Ecole de Formation du Would you like Barreau and one month of work experience in a Interested? law firm in Paris. The programme also includes a To apply, please send your CV and a letter to talk to someone visit to Brussels to the European institutions. explaining your interest in the stage (in both Are you being served? English and French) to Suzanne Crilly who Orionunderstands? Risk has been helping leading law firms, banking and financial institutions The Irish participant will be selected by the EU ([email protected]). and businesses with key Debt Recovery solutions for over 25 years. & International Affairs Committee of the Law Web: www.orionrisk.ie We have nexperience Due Diligence of lifeReporting n Summons Service Society of Ireland. Application deadline: Friday, 13 April 2020. Tel: + 353 1 2886625 in the law,n Pre-Sueand we Enquiries know that n Asset Tracing & Valuations Email: [email protected] at all stagesn Employee of their Screening career, n Investigations PSA Licence number: 06041

people in the legal community 1 The EU & IA Committee will sponsor the participant with €3,500. sometimes need extra support with personal or professional issues

Stage in Paris 2020 Gazette ad March 2020_chosen_male.indd 1 21/01/2020 10:26

Call our free, independent, confi dential Helpline on 1800 991 801 or go to www.lawcare.ie LAW SOCIETY PROFESSIONAL TRAINING

Centre of Excellence for Professional Education and Lifelong Learning

To view our full programme visitwww.lawsociety.ie/CPD

DATE EVENT CPD HOURS DISCOUNTED FULL FEE* FEE 11 March Growth Strategy Workshop 6 M & PD Skills (by Group €210 €255 A Blueprint to Sustain and Grow your Practice Study)

20 March Employment Law Masterclass 6.5 General (by Group Study) €210 €255 Practical Solutions to Common Problems

25 March Healthcare Regulation in Ireland 2020 3 M & PD Skills (by Group €160 €186 Complying with Regulation - Where are we now? Study)

23 April The Business of Wellbeing Summit 2020 6 M & PD Skills (by Group €160 €186 Study)

24/25 Planning & Environmental Law Masterclass 8 General plus 2 M & PD €350 €425 April Skills (by Group Study)

24/25 General & Commercial Litigation Masterclass 10 CPD hours incl. 1 €350 €425 April Regulatory Matters (by Group Study)

29 April Acting for the Older Client in collaboration with 3 General (by Group Study) €160 €186 Solicitors for the Elderly

30 April The Litigator and the Mediation Act, 2017 2 General (by Group Study) €135

7/8 May Essential Solicitor Update Part I & II 7 May - 4 Hours & 7 May - €100 Landmark Hotel, Carrick on Shannon, Co Leitrim 8 May - 6 Hours 8 May - €135 Total 10 Hours (by Group 7 & 8 May - €190 Study)* Hot lunch and networking drinks included in price

22/23 May Fundamentals of Clinical Negligence 10 CPD hours including 1 €350 €425 Radisson Blu, Golden Lane Dublin 8 Hour Regulatory Matters (by Group Study)

28 May Inhouse Panel Discussion 3 M & PD Skills (by Group €65 in partnership with the In-house and Public Sector Study)

28 May Midlands General Practice Update Total 6 CPD Hours €135 Midlands Park Hotel, Portlaoise, Co Laois Hot lunch and networking drinks included in price

Please note our Finuas Skillnet Cluster Events are a combination of General, Management & Professional Development Skills and Regulatory Matters CPD Hours (by Group Study). Unless otherwise stated, events will run in the Law Society at Blackhall Place, Dublin 7

For a complete listing of upcoming events including online GDPR, Fintech, Regulatory Matters and Social Media Courses, visit www.lawsociety.ie/CPD or contact a member of the Law Society Professional Training team on

P 01 881 5727 E [email protected] F 01 672 4890 *Applicable to Law Society Finuas Skillnet members 03_20

LSPT Gazette ad March 2020.indd 1 13/02/2020 12:34 gazette.ie Law Society Gazette March 2020 79 PROFESSIONAL NOTICESNOTICES LAW SOCIETY MISCELLANEOUS May 1930 between (1) Peter Killane, (2) the PROFESSIONAL TRAINING Munster and Leinster Bank Limited, and OUT NOW SOLICITOR’S PRACTICE (3) Francis Hoey (‘the 1930 sublease’), held FOR SALE under the said sublease for the term of 150 Centre of Excellence for years from 25 March 1930, at an annual rent Meath East, sole practitioner of £37.10s, and subject to the covenants and Professional Education and Lifelong Learning • Main street location, conditions therein contained. • Ground-floor offices, Take notice that Midsal Homes Lim- • Expanding residential area, ited intends to submit an application to the • Fully computerised, county registrar for the county of Dublin at To view our full programme visitwww.lawsociety.ie/CPD • eXpd8 Case Management System Áras Uí Dhálaigh, Inns Quay, Dublin 7, for the acquisition of the freehold interest and Enquiries in confidence to Tynan all intermediate interests in the aforesaid DATE EVENT CPD HOURS DISCOUNTED FULL property, and that any party asserting that FEE* FEE Dillon, chartered accountants, 74 Northumberland Road, Dublin 4; they hold the fee simple or any intermedi- 11 March Growth Strategy Workshop 6 M & PD Skills (by Group €210 €255 [email protected]; ref: Meath solr ate interest in the aforesaid property are A Blueprint to Sustain and Grow your Practice Study) [principals only] called upon to furnish evidence of title to the said property to the below-named solici- The Taxation of 20 March Employment Law Masterclass 6.5 General (by Group Study) €210 €255 tors within 21 days from the date of this Companies 2020 Practical Solutions to Common Problems notice. In default of any such notice being By Tom Maguire TITLE DEEDS received, Midsal Homes Ltd intends to pro- This is the most comprehensive analysis In the matter of the 25 March Healthcare Regulation in Ireland 2020 3 M & PD Skills (by Group €160 €186 Landlord and Tenant ceed with the application before the county and commentary available on the taxation Acts 1967-1994 and in the matter of the registrar at the end of 21 days from the date of companies in Ireland. This new edition is Complying with Regulation - Where are we now? Study) Landlord and Tenant (Ground Rents) (No of this notice and will apply to the county updated to include the Finance Act 2019 and a new section on hybrids and transfer pricing. 2) Acts 1978-2005 and in the matter of an registrar for the city of Dublin for direc- 23 April The Business of Wellbeing Summit 2020 6 M & PD Skills (by Group €160 €186 application by Midsal Homes Limited and tions as may be appropriate that the person Price: €225 Study) ISBN: 9781526509772 in the matter of 82 Meath Street, Dublin 8 or persons beneficially entitled to the inter- Take notice that any person having an mediate interests including the fee simple 24/25 Planning & Environmental Law Masterclass 8 General plus 2 M & PD €350 €425 interest in the freehold estate or any inter- in the aforesaid property are unknown or April Skills (by Group Study) mediate interests of that part of the prop- unascertained. erty known as 82 Meath Street, Dublin Date: 6 March 2020 24/25 General & Commercial Litigation Masterclass 10 CPD hours incl. 1 €350 €425 8, together with the right of way referred Signed: HOS Partners (solicitors for the appli- April Regulatory Matters (by Group to in an indenture of sublease made on 16 cant), 46 Fitzwilliam Square, Dublin 2 Study)

29 April Acting for the Older Client in collaboration with 3 General (by Group Study) €160 €186 Solicitors for the Elderly

30 April The Litigator and the Mediation Act, 2017 2 General (by Group Study) €135

7/8 May Essential Solicitor Update Part I & II 7 May - 4 Hours & 7 May - €100 Landmark Hotel, Carrick on Shannon, Co Leitrim 8 May - 6 Hours 8 May - €135 Total 10 Hours (by Group 7 & 8 May - €190 Arthur Cox Employment Study)* Hot lunch and networking drinks Law Yearbook 2019 included in price By Arthur Cox Employment Law Group 22/23 May Fundamentals of Clinical Negligence 10 CPD hours including 1 €350 €425 Set out in alphabetical format for ease of use, the Yearbook covers developments during Radisson Blu, Golden Lane Dublin 8 Hour Regulatory Matters (by 2019 in employment law, equality, industrial Group Study) relations, pensions, taxation relating to employment and data protection law. 28 May Inhouse Panel Discussion 3 M & PD Skills (by Group €65 Price: €99 in partnership with the In-house and Public Sector Study) Law Society Library and ISBN: 9781526509703 information ServiceS – we deLiver! 28 May Midlands General Practice Update Total 6 CPD Hours €135 Order your copies today Midlands Park Hotel, Portlaoise, Co Laois Hot lunch and networking drinks Visit us at included in price LawWatch – we deliver a free, weekly, emailed newsletter with updates on judgments, legislation and journal articles. bloomsburyprofessional.com/ie Please note our Finuas Skillnet Cluster Events are a combination of General, Management & Professional Development Skills and Regulatory Matters CPD Hours (by Group Study). €5.50 P&P Unless otherwise stated, events will run in the Law Society at Blackhall Place, Dublin 7 To subscribe, contact: [email protected]. Contact the library: tel: 01 672 4843/4; email: [email protected] For a complete listing of upcoming events including online GDPR, Fintech, Regulatory Matters and Social Media Courses, visit www.lawsociety.ie/CPD or contact a member of the Law Society Professional Training team on

P 01 881 5727 E [email protected] F 01 672 4890 *Applicable to Law Society Finuas Skillnet members 03_20 Library ad Gazette Dec 2015.indd 1 24/11/2015 10:46

LSPT Gazette ad March 2020.indd 1 13/02/2020 12:34 80 FINAL VERDICT March 2020 Law Society Gazette gazette.ie

PRO BONOBO ‘NUN’ ON THE RUN A convicted fraudster convinced nuns that she was a kind sister in need of help during two years on the run, according to Italian police. The 47-year-old woman, who has not been named, fled Sicily after she was convicted of fraud, impersonation, and theft. She was sentenced, in absentia, to two years and four months in prison in late 2017, thetimes.co.uk reports. Police claim that she made her way to northern Italy, showing up at convents posing as an ill nun. At one convent, she claimed to be the niece of a sister, where she stayed for several days. At a con- vent in Cuneo, she claimed to be a mother superior. It was a real mother supe- rior with “excellent investigative skills” who ultimately discovered the ruse. The nun, a member of the Benedictine Nuns of Perpet- ual Adoration of the Blessed Sac- rament near Milan, noticed that SWEET SMELL OF SUCCESS FOR COPS the fugitive’s stories were “full of He just didn’t smell right. Ger- ran away, but officers noted a contradictions.” man police say they nabbed a strong smell of perfume in the Suspicious of the woman’s drunk driver who tried to flee a car. They followed the trail identity, she called the police, who traffic checkpoint, finding him until they found the man hiding interviewed the suspect. Though hiding behind a hedge “in a cloud behind a hedge. cooperative, she was found in of perfume”, msn.com reports. “Due to the cloud of perfume possession of a stolen ID card and Police in the town of Speyer, that was detected inside the car appeared confused about the most some 110km south of Frankfurt, and on the man, it was possible to basic details of her life story. said that officers saw the 26-year- identify him as the driver,” police Police later confirmed her true old man pass them at high said. identity at a police station and are speed with his car lights off, and A breath test showed that the to lay new false-identity charges gave chase. suspect was well over the legal against her. The suspect pulled over and alcohol limit for driving. STRANGE FRUIT COULD LEAD TO SMELLY ARREST And in another odorous story, The Hawaiian Police Depart- information that could lead to the hotels and public transportation these are thieves you should be ment said that two men entered a capture of the fruit bandits. commonly ban it. able to smell coming. Police in property in Hilo on Big Island and Durian is known for its pale The smell of rotting durian in Hawaii are investigating the theft removed 18 durian and other types yellow flesh and its sweet taste – a cupboard was mistaken for a gas of fruit worth around $1,000, of fruit on the night of 1 February. but its smell has been compared leak and prompted an evacuation usnews.com reports. The haul The police released surveillance to mouldy cheese, rotten onions of a library at the Royal Mel- included durian – known for its footage of the two suspects, and and dead fish. The fruit is popu- bourne Institute of Technology powerful odour. asked the public for additional lar across south-east Asia, but in Australia in April 2018. Fostering successful partnerships www.benasso.com

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