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9 771393 695029 contained inpleadings stand overallpleas Parties mustbeableto These are faraway JUDGEMENT DAY LAW SOCIETY New rules for New rules for
costs orders but it’s goodtotalk and hard todiscuss, Loneliness ispersonal Lone rangers ette dismiss proceedings fordelay of recent applicationsto There havebeenanumber Ducks inarow €4.00 APRIL2021 gaLAW SOCIETY ette
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PRESIDENT’S MESSAGE
VULNERABLE TARGETS
ybercrime has become an economic recovery. The survey was sent to enormous issue for solicitors’ managing partners and firm principals on firms holding client funds. We 11 March. are incredibly vulnerable targets All information gathered will be treated for cyber-thieves. I cannot strictly confidentially by Crowe, and no Law overemphasise how careful Society staff will have access to the data in its we must be to ensure that our accounts are not disaggregated form. For more information, see compromised. this Gazette (page 11) and the eZine (23 March, CUnlike large firms, small firms typically have issue 139). contractual arrangements with IT experts to fix problems. A successful attack is likely to have Good news on CPD been perpetrated before it is identified, and the There is now no charge for the CPD course solicitor then contacts their IT expert – but it is on negative interest-rate charges. Skillnet now too late. funding is 50% grant aided, and so, normally, Steps that can be taken to mitigate cyberattacks the other 50% would be charged to those include staff training, educating clients and, most attending. The Society is also providing importantly, always verifying bank-account details training for staff in solicitors’ offices, and I by telephone. believe that this will be an excellent offering as Cyberattacks are often as a result of basic it evolves. See also page 11 of the Gazette for procedural errors. Law Society investigating further developments. accountant Rory O’Neill has been sounding the alarm bells on cyberattacks for a number of years in the Society’s webinars. The Society has been trying to address this issue on the cybersecurity section of its website, in the Gazette, and through its other outlets. I have requested the chair of the Regulation WE ARE INCREDIBLY of Practice Committee to establish a subcommittee composed of an expert IT solicitor, IT technician, VULNERABLE TARGETS FOR an accountant, and practising solicitors to urgently identify additional steps that can be taken to reduce CYBER-THIEVES the number of successful attacks. Their advice will be vigorously promoted to members. Finally, the Regulation of Practice Commit- tee, under the stewardship of its chair, Imelda Business recovery survey Reynolds, has been requested to review certain The Law Society has appointed Crowe con- aspects of the implementation of the regulatory sultants to conduct a business recovery survey. regime, including the effects of GDPR, a greater We need to understand how the COVID crisis degree of openness in this area for members of
is affecting firms and what assistance they the Law Society, and a preliminary report to be JAMES CAHILL, need for sustainability through the anticipated considered at the Council meeting in July. PRESIDENT 2 CONTENTS??????? ?????? April 2021 Law Society Gazette gazette.ie PIC: ALAMY LAW SOCIETY GAZETTE • Vol 115 No 3 These are far away Lone rangers Ducks in a row Volume 115, Parties must be able to Loneliness is personal There have been a number stand over all pleas and hard to discuss, of recent applications to contained in pleadings but it’s good to talk dismiss proceedings for delay number 3
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FEATURES
22 The wages of sin 38 Careful now! Costs follow the event – though there have been Practitioners acting for both plaintiffs and defendants must exceptions. Has the amendment of order 36 of the Rules be cognisant of the requirements under sections 12-14 of of the District Court opened the Gates of Hell? Matthew the Civil Liability and Courts Act 2004 relating to pleadings. Holmes surveys the Ninth Circle ‘Mind your pleas and Qs,’ warns Brian Hallissey
28 Stony grey soil 42 Lonely are the brave Lynda Smyth speaks to Mary Hallissey about the In an American study into loneliness, lawyers came out challenges of helping to run a busy practice while raising on top as the loneliest profession. Does this surprise you? four children under the age of nine Andy Nazer investigates
34 Getting your house in order The Rules of the Superior Courts (Renewal of Summons) 2018 amended order 8 of the rules, with effect from 11 January 2019. Caoimhe Ruigrok gets her ducks in a row
34 42 50
REGULARS
4 The big picture 46 Analysis Standout photo of the month 46 News in depth: AI affects IP and has implications for it, but the intersection between them is complex 6 People 50 Eurlegal: Brexit is likely to have significant implications for EU companies doing business in Britain 8 News 54 Briefing 54 Council report: 19 March 2021 14 Comment 55 Practice notes 14 Viewpoint: The Judicial Council’s PI guidelines 56 Guidance notes are likely to see a huge influx of cases into the 58 Regulation lower courts 16 Viewpoint: ‘Knowing the judge’ is as important to a litigator as the research and legal arguments 61 Professional notices presented 20 Book reviews: Banking and Security Law in Ireland 64 Final verdict (2nd edition) and Commercial Law (4th edition) 4 IN FOCUS April 2021 Law Society Gazette gazette.ie
THE BIG PICTURE EPA-EFE/KIMIMASA MAYAMA FLOWER POWER Cherry blossoms in full bloom cascade over a river in Tokyo, Japan. The Japan Weather Association declared full bloom for cherry blossoms in the Japanese cap- ital on 22 March, the day after the Japa- nese government lifted a COVID-19 state of emergency in Tokyo and three neighbouring prefectures gazette.ie Law Society Gazette April 2021 IN FOCUS 5 6 PEOPLE April 2021 Law Society Gazette gazette.ie
MURPHY – VIRTUALLY RETIRED
Ken Murphy celebrated his retirement, after 26 years as director general, via a Zoom webinar on Friday 19 March. Mary Keane presented a This Is Your Life style programme, while Law Society staff watched from their homes
We have some salt Prepare for mirth, for Lord, what fools these gazette.ie Law Society Gazette 1995 - 2021 News in depth 37 ANALYSIS of our youth in us mirth becomes a feast mortals be! If I see someone take out You are princes and guests; The young man I mistook a sword, I have a strong urge how welcome you are for this one is there too
gaLAW SOCIETY tte22 MARCH 2021
1215: Murphy signs the Magner’s Carter
“We have the emergence also one place – and the significance Finucane’s listeners. memorial on the historic field at in the Magna Carta, for the first of this is that it separated the king “And, of course, you can’t Runnymede – constructed by the time, of the courts being held in from the justice system,” he told really have a justice system ABA in 1957. without independent courts, an US Ambassador to Ireland independent judiciary and an Kevin O’Malley subsequently independent legal profession honoured everyone involved by to support it,” Murphy said. hosting a reception in the ambas- “That’s why lawyers are talking sador’s residence in the Phoenix up, this year, the history of the Park, where he invited the direc- Magna Carta. tor general to commemorate “A huge influence of the another anniversary, the 150th of Magna Carta was on the Ameri- the birth of WB Yeats, by recit- can Revolution,” the director ing The Song of Wandering Aengus general concluded. “The Magna for his guests. Carta has been referred to expressly in over 100 judgments Magna Carta revisited of the US Supreme Court.” Not to be outdone by the Ameri- cans, the British Ambassador ABA visit to Blackhall Place to Ireland, Dominick Chilcott, 2015: Ken Murphy (director general), William C Hubbard (president of the ABA), Kevin O’Higgins (president) and US Ambassador Kevin O’Malley on a There were further celebrations graciously hosted a dinner at visit to Blackhall Place on 9 June marking the significant Magna his official residence, Glencairn, Carta anniversary when the on 16 June to chime with the president of the 400,000-mem- Magna Carta celebrations. His ber American Bar Association guests were senior members of visited Blackhall Place on 9 Ireland’s judiciary, barristers and June 2015. Accompanying him solicitors, including the manag- were some of the more than ing partners of a number of the 500 American lawyers who had largest firms. crossed the Atlantic to take part Before dinner, at the request in the celebrations at Runny- of the ambassador, Murphy mede on 15 June. delivered an address to all the At Blackhall Place, the Ameri- guests on the history and signifi- can lawyers were given an intro- cance of the Magna Carta for the duction to the Irish legal system rule of law throughout the world and legal profession by Murphy. – a subject on which he had given He also provided some insights radio interviews the previous day MURPHICUS REX on the significance of the Magna to both Mary Wilson on RTÉ’s Carta, which they would be cel- Drivetime and George Hook on A man for all seasons ABBA visits Blackhall Place ebrating at the only physical Newstalk. Staff gave Ken the gift of a one-off Gazette full of memories of his time with the Law Society gazette.ie Law Society Gazette April 2021 PEOPLE 7
MURPHY – VIRTUALLY RETIRED MANY FRIENDS AND COLLEAGUES SENT VIDEO MESSAGES TO KEN
John Hoyles Brendan Ryan Miriam O’Callaghan
Bobby Kerr Lorna Jack Charlie Flanagan
Donald Binchy Merete Smith Michael Peart MAIN PIC: CIAN REDMOND 8 NEWS April 2021 Law Society Gazette gazette.ie DG STEPS DOWN AFTER 26 YEARS n Ken Murphy has retired as the furtherance of his mission as our Law Society’s director general. director general.” He served 26 years in the role and On behalf of the Council and had almost 40 years of service in the profession, President Cahill total, including his 12 years on thanked Murphy for his “wonder- Council prior to his appointment ful legacy as director general”, and as DG in 1995. wished him a happy and fulfilling Murphy has long been the retirement. public face of the solicitors’ pro- fession in Ireland and was, by far, This Is Your Life the longest-serving CEO of any The Society’s staff had their national bar or law society in the chance to bid farewell to their world. A gifted communicator, he departing leader at a virtual retire- has been invariably regarded as ment party the same evening. the ‘defender of the profession’. Deputy director general Mary Keane hosted a This Is Your Life ‘Enormous honour’ style webinar, during which Ken When he announced his inten- President James Cahill and then director general Ken Murphy with the was presented with a special issue tion to retire last October, Mur- engraved silver salver presented to him by the Law Society Council of the Gazette that marked many phy commented that he was of his most significant career profoundly grateful for the “enor- through a period of great change served during his term of office. events, a painting of Blackhall mous honour and opportunities” and expansion, from approxi- Law Society President James Place, and a Blue Book voucher, that the Law Society had given mately 5,000 solicitors on the Cahill described him as “a for- among other gifts. him. Roll of Solicitors when he took ward-looking, yet lateral thinker” There were warm video trib- “Most importantly, my various up office in 1995, to over 22,000 who was “fiercely, fearlessly and utes, too, from luminaries of the roles have enabled me to serve the today. In addition, the profession clinically defensive of the profes- legal, political and broadcast- solicitors’ profession, which I love not only reached parity in terms sion in his endless meetings, dis- ing world, including Miriam and of which I am so very proud of gender balance during his time cussions, negotiations, and media O’Callaghan, former Minister to be a member, and through this, in office, but now boasts a female appearances over the years. for Justice Charlie Flanagan, and the public interest. I have worked majority. “He has had to be a shrewd retired Court of Appeal judge with wonderful colleagues, and The Law Society’s Council paid persuader and weaver of words, Michael Peart. I often remarked that I knew tribute to him at his final meeting a cultivator of relationships, and We wish Ken, his wife Yvonne, no one who enjoyed their job as on 19 March, presenting him with has had to tread a fine line in his and their children Gavin, Char- much as I enjoyed mine,” he said. a silver salver bearing the signa- dealings with such a wide vari- lotte and Rebecca health and hap- Murphy guided the Society tures of all the presidents who had ety of individuals and groups in piness for the future. CITIZEN KEANE – FIRST WOMAN LAW SOCIETY DG n Mary Keane is the Law Soci- PIC: BRYAN MEADE Department of Industry and the first woman to be appointed ety’s director general on an Commerce (1980-1982), taking to a director’s role in the Society’s interim basis. She was formally time out to do her law degree. She history. She was appointed direc- appointed by the Council at its moved to the Companies Regis- tor of the Policy, Communication meeting on 19 March. tration Office at Dublin Castle and Member Services department Keane takes over from Ken (1985-1990) and entered the pri- in December 1997. Currently, she Murphy, who has departed the vate sector when she joined the is the director of the Policy and role after 26 years. She makes his- tax department of Craig Gardner/ Public Affairs Department, and tory by becoming the Society’s Price Waterhouse (1990-1992). continues to serve in that role. first-ever female DG. Keane joined the Law Society Keane is also chair of the From Swinford, Co Mayo, in 1992 as policy development National Gallery of Ireland, serv- Keane was educated at the Con- executive, working alongside ing on the 17-member board since vent of Mercy in Claremorris, the then director general Noel 2014 and taking the chair in March completed her BCL at UCD in Ryan. At the age of 34, she was 2020. She lives in Carne, Co Wex- 1985, and qualified as a barrister appointed deputy director gen- ford, where she is restoring a in1989. eral in December 1996, breaking mediaeval property and “discover- Her working life began in the her first glass ceiling by becoming ing the rhythm of old things”. gazette.ie Law Society Gazette April 2021 NEWS 9 BETWEEN THE COVERS – CRISIS COMMUNICATION! n The onset of COVID-19 hit ments have been significantly many libraries around the world, reduced, and the cost for posting with major disruption to both printed books is currently being services and collection manage- waived. ment. This led to a significant In line with Government shift in how libraries could con- guidelines, access to study space tinue to operate and meet their has been curtailed, with access by users’ requirements, writes Mary appointment only, and for cur- Gaynor (head of library and infor- tailed periods. mation services). In support of the Society’s ini- Librarians had to reimagine tiatives on wellbeing, the library how they could maintain their continues to purchase and make services and significantly boost available for lending key text- the electronic delivery of con- books on wellbeing, as well as tent, as quickly as possible. specific books on managing The Law Society Library stress in the law-firm environ- closed to visitors on 18 March ment. A list is available at https:// 2020 and, following Government members of the library team. bit.ly/380epGp. advice, the library team switched A great strength was the team to remote working and providing itself. We have many years of Move to digital online services only. This was to experience carrying out legal Transitioning to the online envi- continue until 8 June. research and providing library ronment has been on the library’s Switching to online services services, and the team got into its agenda for many years. The cur- was relatively easy, with a strong ‘working-from-home’ stride very rent model provides continuity technology infrastructure already quickly. Communication and in the delivery of services. in place. Members and students sharing knowledge was some- Understandably during 2020, had access to our online library what more cumbersome than there was a decrease in book catalogue (which has been cloud- normal, but we quickly adapted. loans compared with previous based since 2010 and includes years, but the demand for elec- records for books and journals, Main casualties tronic documents, such as prec- as well as our judgments’ data- The main casualties in the March books go out on a daily basis by edents, law reports, articles and base that includes records for our to May 2020 period were the An Post and DX. extracts increased by as much as entire collection of judgments book-loan service and access Since many solicitors are 90% on 2019, which reflects the from the 1950s to date, with links to on-site study facilities. We working from home, we are strong move to digital during to PDFs). negotiated with Irish publishers posting to home addresses the pandemic. The stats show to enhance our e-book collec- where this is preferred. We also the popularity of the library’s ‘Library Chat’ tion, which the library staff are have an ‘order-and-collect’ ser- services to small practices – over Our mobile app catalogue pro- licensed to access and deliver to vice, where books can be picked 75% of enquiries come from vides similar access for solicitors members. We also purchased up from the main reception at practices with between one and and students. More recently, a more e-book titles on the Browns Blackhall Place. five partners. new ‘Library Chat’ feature has Books platform, to which we While we look forward to been activated on the Law Soci- can give members and students Online extracts the end of the coronavirus, ety’s website, giving members direct login access. Many members ask for a book the crisis has given us valuable and students yet another channel A small collection of key Irish loan but, when offered, opt to insights into how the library’s for communicating with us. legal textbooks that are not avail- have relevant extracts/chap- services can operate even more The library team has direct able electronically were taken ters delivered to them by email efficiently, and it has provided access to the key online data- home in order to scan some instead, with the obvious advan- us with opportunities to explore bases, including LexisNexis, extracts, which helped to answer tages of speed, efficiency and a new avenues for meeting readers’ Westlaw IE and UK, Justis and some enquiries. lower carbon footprint. As part requirements. Bloomsbury Professional, among We started lending printed of the Law Society’s initiatives Members can contact us at others, and delivering content books again in June 2020 and, to support members during [email protected], tel: from these databases was pos- with a small staff presence on- COVID-19, library charges for 01 672 4843, or Library Chat at sible regardless of the location of site, have managed to ensure that the delivery of electronic docu- www.lawsociety.ie. 10 NEWS April 2021 Law Society Gazette gazette.ie
ENDANGERED LAWYERS CALCUTTA KHIN MAUNG ZAW, MYANMAR RUNS TOWARDS SEPTEMBER
Khin Maung Zaw (73) was tration of the then-government, appointed as legal counsel by led by Suu Kyi, who defended Aung San Suu Kyi’s National the army’s persecution of that n The Virtual Calcutta Run gar- ment restrictions and social-dis- League for Democracy in Myan- people. nered fantastic support from its tancing guidelines. mar, which won a landslide elec- However, he says that the 1,000 participants last October, It is anticipated that the event tion in November 2020. He is “personal aspects” of Suu Kyi’s raising €280,000 for those expe- will now take place in September defending the State Counsellor case are unimportant in the light riencing homelessness in Dublin – hopefully physically, or at least and ousted President Win Myin of the illegitimate return to mili- and Kolkata, India. in hybrid form. The exact date against (in Suu Kyi’s case) charges tary rule. “I’m not representing In 2021, the initial hope was and format will be confirmed of possessing unlicensed walkie- Aung San Suu Kyi as a person that the event might resume in due course. See the Gazette talkies, violating COVID restric- – I am representing a publicly during the traditional month of and Gazette.ie for updates. The tions, breaching telecommuni- elected person under attack by May from Blackhall Place. This organisers wish to thank you for cations laws, accepting illegal the military forces,” he says. is looking increasingly less likely, your ongoing support for the payments, and intent to cause “That is all in defence of democ- due to the continuing Govern- Calcutta Run. public unrest. racy.” Their government was over- Khin Maung Zaw is familiar thrown by a military junta in with the cost of political resis- EFFECTIVE MEDIATION early February, ten years after tance, having spent nine years democracy was restored. There in prison during the course of his WEBINAR have been widespread ongoing life. He was imprisoned at the n The Law Society’s Litigation chair of the ADR Committee), protests, which have led to the age of 17 by a previous regime and Alternative Dispute Resolu- William Aylmer (consultant, deaths of over 120 people at the for distributing the Universal tion Committees are hosting a Compton Solicitors), and Lisa hands of the military. Declaration of Human Rights at webinar on effective mediation Broderick (partner, DAC Beach- The military has taken steps his university in Mandalay, was on 22 April from 3-5pm. croft). to purge the higher courts of released in 1972, but arrested The session will explore how The seminar (which will pro- judges suspected of being pro- three years later for joining stu- mediation is evolving and focus vide two CPD points) will con- democracy sympathisers. Khin dent protests. on emerging trends and develop- sider whether the Mediation Act Maung Zaw is not living at home The trial of Suu Kyi could last ments, exploring what solicitors 2017 has achieved its aim, and for security reasons, and moves from six to 12 months or more. need to know to best serve their the scope for further reform. every day. Over 2,000 protes- Her lawyer has had difficulty in clients’ interests. It will explore practical stra- tors have been detained. meeting her in person, initially Liam Kennedy SC (partner, tegic issues – the optimum tim- Khin Maung Zaw last came to because she was still under A&L Goodbody, and former ing of mediation, the choice prominence for defending two investigation, and then allegedly chair of the Litigation Com- of mediator, and overcoming Reuters journalists who spent because of COVID restrictions. mittee) will chair a panel that obstacles to mediation – and nearly 18 months in prison for includes Michael Peart (former- will highlight the tools available reporting on atrocities against Alma Clissmann is a member of ly Court of Appeal), Helen (including the Law Society’s the Rohingya minority. This did the Law Society’s Human Rights Kilroy (partner, McCann Fitz- mediation precedents) to help him no favours with the adminis- Committee. Gerald), Alison Kelleher (part- solicitors engage in, or advise ner, Comyn Kelleher Tobin; and on, mediation. gazette.ie Law Society Gazette April 2021 NEWS 11
FIRMS’ SURVEY ON IRLI IN IRELAND COVID-19, MALAWI AND THE PANDEMIC IMPACT RULE OF LAW
Alfred Munika, Nellie Msowoya and Alex Nkunika work with one of IRLI’s local partners in Malawi, the Paralegal Advisory Service Institute n The Law Society has under- and the State over the next 12-18 taken research to assess the months. Upon the advent of COVID-19, rule-of-law issues within Malawi. impact of the COVID pandemic The data gathered will be used Irish Rule of Law International IRLI contacted the Interna- on law firms. to represent the profession at all (IRLI) in Malawi decided to focus tional Bar Association’s Human The business recovery survey, levels, including interactions with much-needed efforts towards Rights Initiative (IBAHRI), which which is being conducted with Government. It will also inform advocating for the urgent decon- offered to use its extensive the help of consultants Crowe, the new supports that the Soci- gestion of Malawi’s severely network and expertise to map was sent to managing partners ety will introduce to help firms to overcrowded prisons, consider- potential advocacy avenues and and firm principals. It is hoped emerge from the current crisis. ing the particular threat posed to support joint advocacy initia- that the results will provide an For further information, con- to incarcerated people. tives with IRLI and the other understanding of what supports tact Justin Purcell at j.purcell@ IRLI reached out to other Malawi-based NGOs. firms will need from the Society lawsociety.ie. non-governmental organisations In October 2020, IRLI spear- that operated access-to-justice headed the drafting of a joint programmes within Malawi to shadow report to submit to the BUILDING A CAREER propose the idea of collabora- Human Rights Committee, the n Construction law is an area tion and devising joint advo- UN body that monitors countries’ of practice that is experiencing cacy strategies. The Centre for adherence to the International increased growth in the current Human Rights Education, Advice Covenant on Civil and Political environment. Demand for legal and Assistance; the South Afri- Rights. The report focused on services is expected to increase in can Litigation Centre; Reprieve; the use of torture, forced confes- the months ahead. and the Paralegal Advisory Ser- sions, prison conditions, pre-trial The ‘Construction Law Mas- vice Institute agreed to come detention, the death penalty, terclass’ is a comprehensive together with us. We created extrajudicial killings, and LGBTQI course, delivered online and advocacy briefs, which high- rights in Malawi, with a particu- on-demand through a practical lighted the plight of prisoners lar focus on how COVID-19 has series of lectures and case studies and contained our various rec- exacerbated these issues. by leading experts. The course ommendations on prison decon- Currently, IRLI is working with will introduce, update and gestion and prisoner health, and IBAHRI and the other NGOs to develop practitioners’ knowl- we shared these with various develop a joint oral statement edge, skills and competencies stakeholders, including the gov- to present to the committee, in the area of construction law, ernment and the judiciary. and will continue to advocate including project finance and lectures and case studies, will The initiative proved so suc- for human rights, both nationally project security. be hosted on an easily accessible cessful that IRLI decided to use and internationally. The course includes a knowl- learning-management system. this effective collaboration at an edge resource hub with materi- Further details about this Finuas international level to advocate Susie Kiely is IRLI judiciary pro- als and relevant legislation. All Skillnet masterclass can be found for broader human-rights and gramme lawyer in Malawi. resources, including the online at www.lawsociety.ie/cpdcourses. 12 NEWS April 2021 Law Society Gazette gazette.ie NEW RULES TO ALLOW FOR REMOTE WITNESSING OF AFFIDAVITS n New court rules that allow for pandemic, especially if the depo- the remote witnessing of affidavits nent was vulnerable, elderly, or in the superior courts came into unable to travel during lock- effect on 31 March, write Liam down Kennedy SC and Nadia Skelton. The Law Society successfully The Rules of the Superior Courts submitted to the High Court (Affidavits) 2021 were signed by Rules Committee that statutory the Minister for Justice on 10 provisions requiring affidavits to March and have been welcomed be sworn before a solicitor would by the Law Society, which has be satisfied by the new videocon- been advocating for reforms to ferencing procedure. However, allow the remote execution of audio-visual swearing would be affidavits, arguing that this was inconsistent with the statutory both consistent with the relevant requirement that statutory dec- legislation and also with devel- larations be made in the presence opments in other common-law of a solicitor. Accordingly, the jurisdictions. rules only apply to the swearing In brief, the rules permit the of affidavits. remote swearing of affidavits to see and hear the solicitor, witnessing the affidavit, and the The Society is also advocat- where, for reasons stated briefly • The appropriate sacred text fact that it was sworn by video- ing for the introduction of cor- in the affidavit, it is not practica- must be available to the depo- conference. responding rules in the District ble for the deponent to attend in nent, and Circuit Courts as soon as the physical presence of a solici- • During the videoconference, Unfortunately, the rules only possible. tor. The rules impose safeguards the deponent must identify apply to affidavits. Statutory dec- In practice, it may often be to ensure the integrity of the each page of the affidavit and larations cannot yet be witnessed simplest for practitioners to remote swearing. exhibits, remotely. This distinction is due have affidavits executed in the Rule 9(3) outlines how affida- • After the videoconference, the to the legislation governing statu- traditional manner. However, vits may be executed by videocon- signed affidavit and exhibits are tory declarations, which requires this is a welcome alternative, ference: sent to the solicitor, who, hav- statutory declarations to be signed both during the COVID-19 • The solicitor must be provided ing confirmed that the docu- in the presence of the person wit- restrictions and in other circum- in advance with a copy of the ments are those identified dur- nessing them. stances, including where clients affidavit and exhibits, ing the videoconference, will are overseas or otherwise unable • The solicitor must be satisfied complete the jurat. The jurat Successful advocacy to attend in person. of the deponent’s identity and will indicate the date the affida- Many solicitors will have found A fuller analysis of the rules also that the videoconferencing vit was sworn by the deponent, it difficult to arrange for affida- will be published in a forthcom- platform allows the deponent where the solicitor was when vits to be executed during the ing Gazette. DIGNITY MATTERS: LAW SOCIETY LAUNCHES SURVEY ON BULLYING AND HARASSMENT As we go to press, the Law Soci- of an evidence-based programme in any way by their answers. inclusivity. Why not be part of ety will be inviting everyone on to address these issues in the pro- Recommendations will be the change, unite your voices, and the Roll of Solicitors, as well as fession and support a culture of determined by the results of this have your say on dignity matters? trainees, to participate in the dignity, respect, and inclusivity. study, as well as the findings of the Keep an eye out for the survey ‘Dignity Matters’ survey at the The consultancy firm Crowe IBA’s Us Too? report. A programme later this month. end of March. has been appointed to deliver to implement the recommenda- The survey will ask about the survey, which is independent tions will follow upon approval by Julie Breen (the Law Society’s profes- respondents’ subjective experi- of the Law Society. Crowe will the Law Society Council. sional wellbeing project coordinator) is ence of previous/current work adhere to ethical research guide- Your voice, together with coordinating the roll-out of the Dig- environments, specifically as it lines and protect participants’ many others, has the potential nity Matters survey. If you have feed- relates to bullying, harassment anonymity and confidentiality, to transform workplace culture back or questions, you can email her at and sexual harassment. It is part and participants will not be bound and ensure dignity, respect, and [email protected]. gazette.ie Law Society Gazette April 2021 NEWS 13
COME WELLBEING ON SIRENE!
Our ‘Ask an expert’ section deals with wellbeing issues that matter to you. GHOST RIDERS ON THE STORM I am a solicitor who has American psychoanalyst Gary tional control’ is a common mis- learnt (the hard way) Greenberg suggested that, in take. It is vitally important right over many years of prac- the pandemic, the role of thera- now that we continue with the Qtice how to look after my wellbeing pists might be one of ‘catalogu- positive mental-health practices n Ireland is now connected to and mental health. However, my ing the losses’ and, to an extent, that we know help us – but we the Schengen Information Sys- self-care routines aren’t working at this has been borne out. In addi- might also consider making space tem (SIS II), which allows law- the moment. Am I doing something tion to the obvious losses – life, for the times when our usual hab- enforcement agencies across 30 wrong? health, income – everyone read- its don’t work. Temporarily relin- countries to share and check ing this will have their own story quishing control of our emotions information. The EU Council As a child, I recall travel- of smaller, yet significant, losses is not the same as losing emotional approved Ireland’s connection ling across the Yorkshire that couldn’t have been imagined control. Whether it is with a part- last December, but it only became Pennines in a minibus before the pandemic. I respect- ner, a friend, a family member, a fully operational on 15 March. Aduring a blizzard. It was dark, the fully suggest that it is impossible pet, or perhaps even a therapist, Gardaí had to build and test the storm was fierce, and the terrain to indefinitely outrun the aggre- don’t be afraid to say to your heart: IT infrastructure and develop the treacherous. An anxious silence gate grief accompanying these “Go on then”, and just allow your- training needed to complete the was broken by the driver saying, losses, no matter how advanced self to feel, before taking the wheel connection to SIS II. A new Sup- apparently to no one, and with a our strategies might be. Feel- again. plementary Information Request slight shake of his head: “Go on ing bad in these unprecedented It is not always a choice between at the National Entries Bureau then!” Three heartbeats later, the times is much more likely to be a crashing or getting home safely. (known as SIRENE) within the rear of the bus hit a bend in the consequence of very real circum- Sometimes, crashing the bus is a force is now responsible for the road. It was not a bad crash, but stance than any personal failure. necessary part of the journey. The daily management of the SIS it was a crash. The driver took This is some storm we are driv- skill is knowing when and how to system. The system gives police the wheel again and we made it ing through, after all. crash safely. forces and other agencies access home without further incident. The driver in my story realised to data on wanted and missing This anecdote has occurred the bus would crash and made an To submit an issue that you’d like persons, people who may not to me a lot over recent weeks as active, informed decision. Let- to see addressed in this column, have the right to enter or stay in I have listened to many people ting the bus slide was a dem- please email professionalwellbeing@ the EU, and objects or vehicles describing experiences of their onstration of his skillset rather lawsociety.ie. Confidentiality guar- that may have been stolen, misap- good habits or ‘positive men- than evidence of a lack of skill: anteed. propriated, or lost. tal-health practices’ not work- he relinquished, rather than This question and answer is hypo- Ireland remains outside the ing so well. Often these come lost, control. Through some thetical and was written by Matthew Schengen Common Travel Area, with recriminations: “I feel bad, blend of experience, training, Henson (existential psychotherapist, but takes part in some policing so I must be doing something intuition (and perhaps luck) he trainer, group facilitator, and mem- cooperation arrangements that wrong.” understood that, in that specific ber of the Law School Psychological are part of the Schengen Agree- Positive psychology has much moment, wrestling to keep the Services team: www.matthewhenson. ment. to offer in a time when we are bus on the road would likely lead ie). Any response or advice provided is Minister for Justice Helen being encouraged to mind our to a worse outcome. I hope there not intended to replace or substitute McEntee said that Ireland’s con- mental health almost as fre- might be benefit in this anecdote for any professional, psychological, nection to SIS II would be a quently as we are being reminded for anyone struggling to stay financial, medical, legal, or other pro- “game-changer” for gardaí in to stay two metres apart. How- positive just now. fessional advice. their fight against cross-border ever, we should be careful not Many years ago, I told my LegalMind is an independent and crime. Commissioner Drew to limit ourselves to two alter- therapist that I was afraid to cry confidential mental-health support Harris added that the benefits to natives – to either (1) give in to in case I would never stop. I now available to Law Society members and policing in Ireland could not be our ailments, or (2) outrun them know that equating ‘allowing their dependants, 24 hours a day, and understated. indefinitely. myself to feel’ with ‘loss of emo- can be contacted at 1800 81 41 77. 14 COMMENT Viewpoint April 2021 Law Society Gazette gazette.ie THERE MAY BE TROUBLE AHEAD The Judicial Council’s Personal Injuries Guidelines are likely to see a huge influx of cases into the already overworked lower courts. Stuart Gilhooly foresees trouble ahead
STUART GILHOOLY IS A PARTNER AT HJ WARD AND CO, SOLICITORS, LLP
t must have been difficult to saw fit, decided that engagement not arise where a claimant has drown out the noise. Ever with stakeholders about an issue rejected a PIAB award or where since the Judicial Council that had been essentially tasked court proceedings have been Iwas set up in 2019, the singular solely to the judiciary would be issued. focus of the media and the public inappropriate – and this seemed a The commencement date for has been on the publication of its sensible course. the operation of the guidelines Personal Injuries Guidelines. The has not yet been formalised, but it power to compile them was very Striking the right balance is likely to be early in April. From much an afterthought to legisla- The result was a set of guidelines that date, the guidelines will apply tion for a body that had been in with which no one was satisfied to any claim that does not fall embryonic state for some years – and that, counterintuitively, within the exceptions referred to beforehand. However, it became suggests they struck the right bal- above – that is, the PIAB Book of the driving force to transform ance. Certainly, from the point of Quantum will continue to apply a bill that had been ambling view of the injury victim, the cuts to any proceedings issued and any through the legislative process at are severe and constitute at least PIAB awards rejected before the a leisurely place, becoming a mis- 50% in places, and even more in commencement date. sile hurtling through the Dáil. others – particularly the extraor- This will leave a two-tier sys- OF COURSE, THE The level of expectation was dinary reduction in damages for a tem for a time. It is intended that, enhanced by the loud entreat- nose fracture, which appears to be at the conclusion of proceedings, USUAL SUSPECTS ies of various business lobbies about 10% of its previous value. the guidelines will be opened by and the persistent whining of a Of course, the usual suspects were the parties and submissions made WERE CLAIMING disingenuous insurance indus- claiming the reductions were not as to what section applies to the THE REDUCTIONS try. The judiciary, in the form of enough, thus giving cover to the injury or injuries in question. It the Personal Injuries Guidelines insurers to say that they still could would seem inevitable that, if WERE NOT Committee (PIGC) that had not commit to a reduction in pre- the Book of Quantum applies to been provided with this thankless miums. the proceedings in question, as it ENOUGH, THUS task, to their credit, refused to be Experience tells us that the clearly will for some time, it too GIVING COVER swayed by attempts to influence reality is that the insurers will should be opened in a similar their decision-making. The bra- never reduce premiums until it manner in order to avoid confu- TO THE INSURERS zen efforts of ISME in compil- suits them, most likely for market sion. TO SAY THAT ing their own alternative ‘book of reasons, and the business lobbies quantum’, which they forwarded will never be happy until injury Matter of regret THEY STILL to the committee, demonstrates victims’ compensation is so small It is a matter of great regret that the lack of basic understanding in that making a claim is no longer the derogation for the guidelines COULD NOT some areas of Irish society of the worthwhile. does not also extend to claims COMMIT TO A constitutional requirement that currently before the PIAB. The judges remain independent of So, what does it all mean? argument is well made that REDUCTION IN outside influence. As far we know at time of writing, many such claimants may have The PIGC, although entitled there will be a transition period, rejected offers made under the PREMIUMS to consult with whomever they which ensures that injustice does Book of Quantum regime, and gazette.ie Law Society Gazette April 2021 Viewpoint COMMENT 15 PIC: SHUTTERSTOCK
will receive awards or offers of a The effect of the guidelines on figure to each individual injury, remaining discretion they have to much lower nature. This may yet practice remains to be seen, but but rather by the judge selecting award outside the guidelines, and be the subject of a challenge, but it’s clear that it represents a sea the most significant one, and then reserve it for exceptional cases. would seem that it is in a differ- change. The main victim of the providing for an uplift to reflect The result is likely to be a huge ent category of claim than those cuts are soft-tissue injuries, par- the other injuries suffered. This influx of cases into the already where awards have been rejected ticularly those of a minor nature. guidance does provide discretion overworked lower courts. The or proceedings issued. While the While the Book of Quantum does for a judge in determining the High Court – which, in fact, is latter cases involve costs penalties not provide a direct comparison, level of the uplift. currently the best-resourced orig- where the values have changed to the reduction to €500 to €3,000 for This is not the limit of a judge’s inal jurisdiction – will see a large such a degree, it appears that any six months’ neck injuries; €3,000 to discretion. Section 22 of the Civil reduction in its caseload, which case that has not yet left the PIAB €6,000 for one year; and €6,000 to Liability and Courts Act 2004 has will feed into the Circuit Court. merely falls into a class where bad €12,000 for two years represents at been amended to provide stron- While there will be a consequent luck applies. least 50% on the original values. ger wording. The amendment domino effect of some of its pro- Any offers made are of a ‘with- While this is clearly not a prob- requires a judge to have regard to ceedings feeding into the District out prejudice’ nature and not lem for the many people who have the guidelines. Where it differs Court, both courts will require admissible in any court challenge never had such an injury, it will from the previous wording is the extra judges, courtrooms and sup- that may be taken, so it is hard result in an injustice in some cases change that now requires a judge port staffing. In the likely event to see where the injustice arises, where the effect for that period was to provide reasons for departing that such further resourcing will given that the guidelines must severe, but a full recovery occurred from the guidelines. When the not be forthcoming, substantial come into being at some point, early. section was originally enacted, it delays are inevitable. and there will always be a claim- allowed a judge to take other mat- The guidelines are accessible ant that will feel hard done by. Judicial discretion ters into account besides the Book at www.judicialcouncil.ie/publi- This doesn’t mean that it’s fair, The guidance provided by the of Quantum, so the requirement cations, and all practitioners in but a political decision has been Judicial Council does ensure that, to provide reasons is a very sig- this area should read them care- made on foot of the advice of the where more than one injury occurs, nificant departure. fully and familiarise themselves Attorney General, and it is not the damages cannot accumulate by It is likely, however, that judges with them. They are due to be going to change. direct reference to the appropriate will exercise, sparingly, whatever reviewed in three years’ time. 16 COMMENT Viewpoint April 2021 Law Society Gazette gazette.ie JUDGE DUTY ‘Knowing the judge’ is as important to a litigator as the research and legal arguments presented, and can distinguish the ‘great’ practitioner from the simply ‘ordinary’. Here’s the science bit, explains Brian Barry
DR BRIAN BARRY IS A SOLICITOR AND LAW LECTURER AT TU DUBLIN
efore entering the court- tions, and new technologies can nisant of hindsight bias. For room, lawyers will care- all affect judicial decision-making example, in high-profile litiga- fully test their evidence in different contexts. tion concerning the cervical andB thoroughly rehearse how Among the more memorable screening programme (Morrissey each of their factual and legal recent studies on what can make v Health Service Executive and arguments will play out. But as the difference in courtroom deci- Others), both the High Court every litigator knows, one of the sion-making are those that have and Supreme Court reflected on biggest factors that will affect considered whether judges have how hindsight bias can lead to how they finally present their had their lunch, the wavering for- decision-making errors. case will only be known on, or tunes of the sports team they sup- Nevertheless, might some shortly before, the day: who is port – or even, in one experiment judges sometimes perceive the the judge? on a group of German judges, connection between a defen- Although litigation solicitors how the roll of dice can affect dant’s conduct and the plaintiff’s IN OTHER and their clients rightly expect sentencing decisions. harm as stronger and more inevi- JURISDICTIONS whoever they appear before to be These striking examples aside, table than it actually was when excellent, objective, and consis- this scholarship has reached a the harm occurred? WHERE JUDICIAL tent decision-makers, judges are, level of sophistication and depth While some experimental of course, human. This makes that makes knowing about it studies point to judges’ impres- TRAINING ‘knowing the judge’ as important indispensable for the litigation sive ability to suppress hindsight IS MORE a skill as any for the litigation lawyer looking to hone their bias – particularly in criminal law lawyer; one that distinguishes skills of ‘knowing the judge’, matters – other studies suggest ADVANCED, the great practitioner from the and useful for judges who want that, in negligence cases, the very ordinary. Yet what is it to ‘know’ to understand the science that fact of knowing the outcome can EXPERIMENTAL the judge, and what is the mea- speaks to their everyday experi- make a difference in judges’ eval- STUDIES HAVE sure of that? ences on the bench. What kinds uations of whether the defendant of insights can this research pro- breached their duty of care. FACILITATED Subtle factors vide for the lawyer, the judge and A growing and increasingly the Irish judiciary as a whole? Crunching the numbers JUDGES’ sophisticated body of research Two live issues for the Irish judi- MEANINGFUL from a variety of academic dis- Hindsight bias ciary at the moment are provid- ciplines has emerged in recent In a negligence claim, a judge ing guidelines for damages in SELF-REFLECTION years, scientifically testing and already knows about the harm personal injuries cases and for measuring how subtle but very that has come the plaintiff’s way. sentencing. These are situations ON THEIR real factors beyond the law affect They must necessarily judge with where judges must crunch the PRACTICE AND how judges judge. the benefit of hindsight. numbers, converting the qualita- Psychologists, political sci- But, when evaluating whether tive into the quantitative. HELPED THEM entists and economists, among the defendant’s conduct was actu- On 6 March, the Judicial others, have demonstrated how ally negligent, can the judge push Council adopted the Personal TO LEARN FROM psychological effects, numerical the tendency to think ‘that was Injuries Guidelines. Damages caps EACH OTHER IN A reasoning, implicit biases, court obviously going to happen all are also on the cards after the rules and processes, influences along’ out of their mind? Law Reform Commission con- SYSTEMATIC WAY from political and other institu- Judges are undoubtedly cog- cluded that the damages-capping gazette.ie Law Society Gazette April 2021 Viewpoint COMMENT 17
model in the recently enacted of awards higher than before research demonstrating how THE WAY A Judicial Council Act 2019 meets their introduction, because the guidelines can influence sen- constitutional tests. amount set by the cap itself serves tencing patterns in inadvertent, NUMERICAL VALUE Research on the effects that as an anchor. unexpected ways. damages caps can have on judges’ This is an example of the Take, for example, the ‘fram- IS PRESENTED numerical reasoning is worth ‘anchoring effect’: when making ing effect’: the way a numerical considering. While caps will, of a numerical judgement, people value is presented or ‘framed’ OR ‘FRAMED’ course, cut out the possibility of commonly rely on an initial value changes a decision-maker’s per- CHANGES A excessively high awards, stud- available to them. ception of it. In the 1990s in ies demonstrate that they can Furthermore, those tasked Finland, the average length of DECISION-MAKER’S also have the paradoxical effect with implementing new sentenc- sentences meted out for theft of drawing the average level ing guidelines should consider dropped after sentencing legis- PERCEPTION OF IT DEADLINE IS 23 APRIL
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04_21 gazette.ie Law Society Gazette April 2021 Viewpoint COMMENT 19 PIC: SHUTTERSTOCK lation was reframed to express sentences in days rather than in months. Particularly intriguing are experimental studies where judges bravely serve as the judicial equiv- alents of lab rats. This research has reached a tipping point – it is methodologically robust enough for Irish judges to consider under- taking equivalent studies. This could play a useful role in education programmes to be prescribed through the Judicial WHILE CAPS Council. In other jurisdictions where judicial training is more CUT OUT THE advanced, experimental studies have facilitated judges’ meaning- POSSIBILITY OF ful self-reflection on their practice EXCESSIVELY HIGH and helped them to learn from each other in a systematic way. AWARDS, THEY This research could also inform engagement, perhaps a charac- This research can help lawyers the development of selection teristic of the next chief justice’s to be more categoric and cer- CAN HAVE THE exercises used for recommend- tenure could be to fully embrace tain in their advice, better able PARADOXICAL ing candidates for judicial office, judicial scholarship and to to respond to their client’s all- should a new appointments com- apply it. important question: ‘what are my EFFECT OF mission be established. Although the picture this body chances?’ For judges and the judi- of work paints may sometimes ciary, it will help them strive for DRAWING THE Strong reputation be pessimistic (although, not better, fairer justice through more AVERAGE LEVEL Despite recent controversies, the always – a recent study analysing consistent decision-making. Irish judiciary continues to enjoy over 5,000 decisions of the Irish It’s time to embrace it. OF AWARDS a deservedly strong international Supreme Court indicated no evi- reputation. dence of political partisanship in How Judges Judge: Empirical HIGHER THAN While Chief Justice Frank decision-making), this research Insights into Judicial Decision- BEFORE THEIR Clarke’s tenure has been charac- is fundamentally geared towards Making is published by Rout- terised by an emphasis on public improving justice systems. ledge. INTRODUCTION
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Library ad Gazette Jan_Feb 2017.indd 1 25/01/2017 15:09 20 COMMENT Books April 2021 Law Society Gazette gazette.ie BANKING AND SECURITY LAW IN IRELAND (2ND EDITION) William Johnston. Bloomsbury Professional (2020), www.bloomsburyprofessional.com. Price: €250.75
This book is a follow-up to the first edition, published in 1998. The changes in the area in the intervening period have been monumen- tal. These changes have resulted from a vast array of case law that occurred after the 2008 financial crisis, but also as a result of legisla- tive change. The two most significant reforming pieces of legislation in this area are the Land and Arthur Cox Conveyancing Law Reform Act 2009, which Arthur Cox repealed and replaced the ancient legislation Employment Law underpinning all mortgages and charges, and Employment Law the Companies Act 2014, which brought about Yearbook 2020 many fundamental changes to company law. Perhaps most relevantly for practitioners in Arthur Cox Employment Law Yearbook the area of banking and security law, major Arthur2020 covers Cox Employment the year’s developmentsLaw Yearbook 2020in employment covers the law, year’s equality, developments industrial changes were introduced by the 2014 act relations,in employment pensions, law, taxationequality, relatingindustrial to in areas such as guarantees, examinerships, relations,employment pensions, and data taxation protection relating law. to employment and data protection law. insolvency, and areas of security. Developments featured in the year’s This book deals with all of these develop- Developments featured in the year’s edition include comprehensive ments in a very comprehensive manner, han- able addition to the knowledge in this area, edition include comprehensive analysis of the impact of COVID-19 on dling its subject matter very well – and it is and it will be of immense assistance to practi- analysisthe relevant of the areas impact of employment of COVID-19 law on an engaging read. It is interspersed with case tioners operating in this rapidly evolving area the inrelevant both the areas Republic of employment of Ireland law in bothand the Northern Republic Ireland. of Ireland law and commentary, with incredibly exten- of law. The publication of the second edition and Northern Ireland. sive coverage of the areas of loan agreements, is timely, given the fact that many lenders are This title is the ninth in a series written guarantees and security over land, moveables, currently reviewing security following the Thisby subjecttitle is the matter ninth experts in a series at Arthur written byCox. subject The fullmatter series experts is available at Arthur to debts, bank accounts, and shares. Floating COVID crisis. Cox.purchase The full series on our is website. available to charges and registration of company secu- In the coming months, it is expected that purchase on our website. rity are also dealt with very comprehensively these security reviews will, unfortunately, (and practically). A most welcome addition is result in enforcement of security. This book the inclusion of a chapter on ‘Demand and will be a great resource for legal practitioners appointment of a receiver’. This chapter sets and others working in the areas of banking out recent issues in respect of which there and security. has been extensive litigation in recent years, including the wording of letters of demand. Sinead McNamara is a partner in FitzGerald Pub date: March 2021 This book should be regarded as an invalu- Legal & Advisory LLP, 6 Lapps Quay, Cork. Pub date: March 2021 ISBN: 9781526513632 ISBN: 9781526513632 Price: €99 Price: €99 Ebook formats also available Ebook formats also available IF LIFE GIVES YOU LEMONS, Order your copy today Order your copy today WE’RE HERE TO HELP Visit us at Visit us at bloomsburyprofessional.com Consult a Colleague in total confidence bloomsburyprofessional.com Call us on 01 284 8484 A confidential free service from the DSBA. www.consultacolleague.ie gazette.ie Law Society Gazette April 2021 Books COMMENT 21 COMMERCIAL LAW (4TH EDITION) Michael Forde. Bloomsbury Professional (2020), www.bloomsburyprofessional.com. Price: €165.75 (e-book €149.28). This book undertakes the huge task of (or indeed separate aspects of them), this explaining several vast areas of law, and it book must, in some cases, necessarily provide does so admirably and comprehensively. more of an overview. But that is essential and Taken literally, ‘commercial law’ would most welcome for those who are not experts encompass all law that regulates those engaged in these areas. What distinguishes many of in commerce. Dr Forde addresses this point these areas of law is the multiplicity of their in his introductory chapter, noting Prof Roy sources: for example, the chapter on inter- Goode’s description of it as “the branch of law national trade, which will no doubt become which is concerned with rights and duties aris- even more complex post-Brexit, deals exten- ing from the supply of goods and services”. sively with the matrix of treaties, law, conven- He puts the law in its historical, general, and tions and practices that regulate this area of European contexts, observing the evolution commerce. of codes of law, not only to define obligations Also deserving of special mention is the of parties, but more often recently to redress chapter on intellectual property, which pro- inequalities of bargaining power. vides an extensive analysis (and demystifica- The chapters that follow take us through tion) of the many interlocking rights that can the bodies of law that fall into this descrip- subsist under this heading. tion, starting with agency, and then moving Expansive in its scope and pleasing to read, into the areas of sale of goods and supply of we can be grateful to Dr Forde for this expert services. The interlocking areas of payment and timely publication, which will be an essen- and security then follow. These are followed tial component of the solicitor’s library. by insurance, international trade, intellectual cluding with consumer protection. property, competition, regulated industries, Given that there are books that drill more Paul Egan SC is a senior consultant with Mason dealing with the State, arbitration, and con- deeply into many of these individual areas Hayes & Curran LLP.
New UCD Diploma for 2021 UCD Sutherland School of Law
Professional Diploma in Dispute Resolution (Mediation) Commencing Online June 2021 This new Diploma is being offered by UCD Sutherland School of Law and is designed for those seeking career advancement in a range of law and non-law settings. This programme will suit practising barristers or solicitors or those actively engaged in legally connected employment plus other graduates with relevant qualifications and experience. The programme will be delivered fully online, with interactive modules so students can work at their own pace and in their own time. Become a qualified Mediation Advocate.
APPLY NOW Apply now online at www.ucd.ie/apply or email [email protected] 22 COVER STORY April 2021 Law Society Gazette gazette.ie PIC: ALAMY gazette.ie Law Society Gazette April 2021 COVER STORY 23
THE WAGES OF SIN Costs follow the event – though there have been exceptions, specifically in criminal cases. Has the amendment of order 36 of the Rules of the District Court opened the Gates of Hell? Matthew Holmes surveys the Ninth Circle
MATTHEW HOLMES IS A DUBLIN-BASED BARRISTER 24 COVER STORY April 2021 Law Society Gazette gazette.ie
AT A GLANCE n Costs follow the event: the loser pays the winner’s costs n It used to be that a defendant in a criminal case could not seek their costs against the prosecution, even if they were acquitted n The rules have changed, particularly recently for District Court cases
osts follow the event. Traditionally, this has been the rule in almost every area of law. If a case is brought, the loser has to pay the winner’s costs, as the winner should not be penalised for upholding their legal rights. As one of the most important rules, it is subject to a number of exceptions – perhaps the biggest are found in criminal law. A defendant in a criminal case could not seek their costs against the prosecution even if they were acquitted. In People (Attorney General) v Bell (1969), the Supreme Court noted that this rule was centuries old. And the rules have now changed, particularly recently for District Court cases. gazette.ie Law Society Gazette April 2021 COVER STORY 25 PIC: ALAMY
Order 36 of the Rules of the District Court such costs and witnesses’ expenses as it shall as a police officer [emphasis added], to pay was amended on 29 September 2020 by SI think fit to award.” to the other party such costs and witnesses’ 496/2020 (District Court (Order 36) Rules Previously this rule had read: “Where expenses as it shall think fit to award.” 2020). the court makes an order in any case of It now reads: “Where the court makes an summary jurisdiction (including an order Junipers and cedars gloat order in any case of summary jurisdiction to ‘strike out’ for want of jurisdiction), The changes to this rule were introduced (including an order to ‘strike out’ for want it shall have power to order any party to following the 2019 decision of the Court of jurisdiction), it may make an order in the proceedings other than the Director of of Appeal in DPP v District Judge McGrath. accordance with law ordering any party to Public Prosecutions, or a member of the Garda Here, the accused was alleged to have the proceedings to pay to the other party Síochána acting in discharge of his or her duties assaulted a wildlife ranger, and alleged in 26 COVER STORY April 2021 Law Society Gazette gazette.ie
turn that he, in fact, had been assaulted by unlikely that costs will be awarded against The award of costs against prosecutors has the ranger. The case was struck out, although individual gardaí directly, despite the rules been allowed for some time in the circuit and the accused, unusually, objected to the DPP’s allowing for this. Instead, it is likely that superior courts, and the law here might be request to withdraw the case because he costs will be awarded against the DPP. It used as guidance in summary cases. Privately wanted to clear his name. He was awarded his may be that costs will be awarded against retained defence teams in these cases are costs against the DPP. This award of costs was individual gardaí if very serious allegations significantly rarer than they would be in the quashed by the High Court, but was upheld are made against them during the course of District Court, but are not unheard of. by the Court of Appeal. a case, which are upheld by the court. In Bell The Court of Appeal, in DPP v T O’D The Court of Appeal held that exempting (the first-ever case where costs were awarded (No 2) (2017), noted that: “Applications for the DPP and members of An Garda Síochána, to the defence here), it was alleged that the costs by successful defendants in criminal acting in the course of their duty, from having gardaí had threatened the defendants into cases are relatively rare because most are costs orders made against them was ultra making false confessions. processed with the benefit of State-provided vires the delegated power granted to the At the moment, there is no scale for costs legal aid.” District Court Rules Committee. The court in criminal cases, as there is for civil District noted that, in every version of the District Court cases. Further, there is nothing in uidance was given as to costs by Court Rules that had existed, there had been order 36 or the legal-aid rules preventing an the Court of Criminal Appeal in a prohibition on costs against the DPP, the award of costs against a defendant in criminal DPP v Bourke Waste Removal Ltd Attorney General (who prosecuted prior to cases. These awards are sometimes sought in G(2012). There, it was held that the costs of the DPP), and against gardaí acting in the non-garda prosecutions brought by statutory an unsuccessful Central Criminal Court course of their duty. bodies, which are most frequently heard in prosecution for breaches of the Competition Court 8 in the Four Courts. In many of these Acts could be awarded against the DPP. The r Justice Edwards accepted that prosecutions, there are statutory provisions defendants had been acquitted on all counts there may be excellent policy for the payment of the prosecution’s costs by by the jury. The trial judge awarded them reasons why the DPP and the defendant. On rare occasion, the costs in their costs, and this was appealed by the Mmembers of An Garda Síochána acting in the these cases can be higher than any financial DPP pursuant to section 24 of the Criminal course of their duty should be exempted from penalty imposed. It would, therefore, appear Justice Act 2006. The court referred to what having costs orders made against them in that costs in criminal cases would be full it described as the “helpful judgment” of summary criminal proceedings. However, he costs, not yet limited by any scale. Charleton J in Director of Public Prosecutions v was of the view that such a policy could only Kelly (2007), as well as a judgment of Cooke lawfully be implemented by means of A place for owls J in Director of Public Prosecutions v McNicholas primary legislation. In Foley v Clifford (1946), it was held that a (2011). In Kelly, Charleton J had provided ten costs order in a criminal case could not be questions to be relied on in deciding on costs. Limbo appealed to the Circuit Court. The case was In Bourke, the court reduced this to four Despite the fact that this statutory dismissed, but an order for costs was made questions: instrument was introduced, it is still open to against the accused. He could not appeal, as 1) Was the prosecution warranted, in regard the Government at any stage to introduce this was not a “penal or other sum” within to the matters set forth in the book of legislation to bring the law back to its prior the meaning of section 18 of the Courts of evidence, what actually transpired at the state. Under section 8(2) of the Garda Justice Act 1928. However, this is an old trial, and what responses were made by Síochána Act 2005, gardaí prosecute in the Circuit Court decision and not a binding or on behalf of the defendants prior to name of the DPP. This means that it is precedent. the trial?
THERE IS NO SCALE FOR COSTS IN CRIMINAL CASES, AS THERE IS FOR CIVIL DISTRICT COURT CASES. FURTHER, THERE IS NOTHING IN ORDER 36 OR THE LEGAL-AID RULES PREVENTING AN AWARD OF COSTS AGAINST A DEFENDANT IN CRIMINAL CASES gazette.ie Law Society Gazette April 2021 COVER STORY 27
THE COURT OF APPEAL HELD THAT EXEMPTING THE DPP AND MEMBERS OF AN GARDA SÍOCHÁNA, ACTING IN THE COURSE OF THEIR DUTY, FROM HAVING COSTS ORDERS MADE AGAINST THEM WAS ULTRA VIRES THE DELEGATED POWER GRANTED TO THE DISTRICT COURT RULES COMMITTEE
2) Had the prosecution conducted them- following the event, but was the starting the client’s means are such that they can selves unfairly or improperly in relation to point of the court’s consideration on costs, afford their own solicitor; or that they want the defendants, by oppressive questioning and was to be considered in conjunction a specialist who doesn’t work for legal aid. or otherwise, and had the prosecution with other relevant circumstances. This change may have greater been pursued with reasonable diligence ramifications, meaning that some weaker and expedition? Final judgement cases are not prosecuted for fear of costs 3) What was the outcome of the Of these principles, the latter two are the implications. On the other hand, some may prosecution? If an acquittal, was this on most important in summary cases. One be reluctant to award costs; or primary foot of a direction granted by the trial helpful case is T O’D. There, the accused had legislation may be brought in. Time will judge and, if so, on what basis? been convicted of the historical sexual assault tell. 4) How had the defendants met the of a schoolboy. The conviction was quashed proceedings, both prior to and at trial, due to an error in the trial judge’s ruling, and and had they associated themselves permission was refused for a retrial. with undesirable elements, or otherwise LOOK IT UP contributed to drawing suspicion on he Court of Appeal applied the four CASES: themselves? questions from Bourke, and awarded n Director of Public Prosecutions v Kelly the defendant his costs. It found that: [2007] IEHC 450; [2008] 3 IR 202 Purgatory 1)T The prosecution was warranted, n Director of Public Prosecutions v As well as providing these four questions, 2) The case against the appellant was one of McNicholas [2011] IECCC 2 the Court of Appeal laid out the following very significant antiquity, n Dowling v Bord Altranais agus general principles it would rely on when 3) While the outcome of the prosecution in Cnaimhseachais na hÉireann [2017] dealing with costs and cost appeals: the Circuit Criminal Court was a verdict IEHC 641 1) That the court would not interfere with of guilty, that verdict was quashed by n DPP v Bourke Waste Removal Ltd the exercise of a discretionary judgment order of the court, making it appropriate [2012] IECCA 66; [2013] 2 IR 94 of a trial judge in relation to costs, unless that the court approach the application n DPP v District Judge McGrath [2019] it was satisfied that such exercise was for costs as if the appellant had been IECA 320 substantially flawed, or was such that, in acquitted, having regard to the reasons for n DPP v T O’D (No 2) [2017] IECA 173 the interests of justice, it ought to be set his conviction appeal being allowed, and n Foley v Clifford [1946] IR Jur Rep 53 aside. 4) There could be no criticism as to the n People (Attorney General) v Bell 2) When the trial court exercises its manner in which the appellant has met [1969] IR 24 discretion in criminal cases to award the proceedings. costs, that discretion is not coupled with LEGISLATION: any specific presumption under the Rules For further discussion of Bourke, see Dowling n Courts of Justice Act 1928, section 18 of the Superior Courts 1986 that costs v Bord Altranais agus Cnaimhseachais na n Criminal Justice Act 2006, section 24 should follow the event. hÉireann (2017). n District Court (Order 36) Rules 2020 3) That, in exercising the court’s costs The majority of criminal cases where (SI 496/2020) jurisdiction, the actual result of the someone will pay for their own legal n Garda Síochána Act 2005, section 8(2) prosecution was more than a purely representation are heard in the District n Rules of the District Court, order 36 neutral factor. The actual result was Court. This may be because the case is too n Rules of the Superior Courts 1986 not determinative of orders for costs minor, so that legal aid wasn’t awarded; that 28 PROFILE April 2021 Law Society Gazette gazette.ie
STONY GREY SOIL Lynda Smyth has a clear perspective on work in a rural practice. She speaks to Mary Hallissey about the challenges of helping to run a busy practice while raising four children under the age of nine
MARY HALLISSEY IS A JOURNALIST WITH THE LAW SOCIETY GAZETTE
other of four Lynda Smyth is a busy solicitor working in a provincial practice that caters to a wide farming and SME clientele in the hinterland of Castleblayney, Co Monaghan. A partner in Coyle, Kennedy, Smyth (founded in 1906), the Ballybay native has some acute observations on how legal practice has changed since she qualified. Coming from a business background, she knows that it’s not about competition on fees alone – in a rural practice, you have to have a good rapport with your clients. “Clients want to feel a connection with you – you get to know them, their businesses, and their families. The concept of the ‘family solicitor’ is still very strong in rural practices. One of the main challenges for any solicitor in private practice is the level of fees that are charged. Clients are a lot more conscious of their legal spending, and often aren’t aware of the work involved in a transaction. They continually want better value for money, so this means solicitors must be increasingly competitive in the fees they charge.” Conveyancing, probate and litigation are still M the bread-and-butter of the country practice. gazette.ie Law Society Gazette April 2021 PROFILE 29 ALL PICS: MANUEL LAVERY 30 PROFILE April 2021 Law Society Gazette gazette.ie
CLIENTS WANT TO FEEL A CONNECTION WITH YOU – YOU GET TO KNOW THEM, THEIR BUSINESSES, AND THEIR FAMILIES. THE CONCEPT OF THE ‘FAMILY SOLICITOR’ IS STILL VERY STRONG IN RURAL PRACTICES
And increased regulation has resulted in introduction of extra [property-related] taxes care, and where the money for that will greater responsibility and pressure on smaller all add to the administrative workload of come from if they transfer the farm. practices, she muses. “It can be hard to keep conveyancing-heavy legal practices. It can “There is a multitude of potential pitfalls on top of all the regulatory and management be time-consuming to explain the various when dealing with a conveyance, more so requirements and still get your work done,” property taxes to clients, and we often end than with probate, litigation or criminal she concedes. “The buck stops with you on up having to register and pay for these taxes matters,” she says. “You have a certain dread everything, and that can be stressful.” as part of a conveyance. A commercial client of something going wrong, even though would be familiar with these concepts, but you do your best to do everything right. A country practice many clients are unaware of them.” There is a sense that you are responsible for Conveyancing has become increasingly everything, even mapping and engineering complex, with a lot more administrative ural property transactions have matters, which are obviously not our areas work. The responsibility for these increased complexities that urban property of expertise,” she reflects. “It’s fast-paced administrative burdens falls squarely on the transactions may not have, such as and wrinkle-inducing, and not all that shoulders of the legal practitioner. wayleaves,R visibility agreements, rights of lucrative!” “I find conveyancing is a lot more time- way, and so on. And the farming community consuming than other types of legal work. has difficult decisions to make in terms of Neighbours While, in many ways, the title system hasn’t transfer of lands, in that they must weigh up However, Lynda brightens as she speaks changed – and has even simplified – the their likely future need for nursing-home glowingly of her wonderfully supportive colleagues. Monaghan solicitors have both an email group and a WhatsApp group, and are happy to share information and knowledge – and the odd joke. This support is invaluable, she says. “I have some great role models among my Monaghan colleagues – mothers like me who manage to run successful practices and juggle busy home lives.” Monaghan people are very industrious, she says, with a strong entrepreneurial streak, and they are very fair in their dealings. The proximity to the border breeds ingenuity and resilience, she notes. “They take no nonsense and are straight-talking.” And there is a high proportion of self- employed people in the county, with many successful homegrown businesses. Monaghan is known for its engineering, construction, and agri-food enterprises – nine out of ten employers in the county are involved in food production. gazette.ie Law Society Gazette April 2021 PROFILE 31
Many of Lynda’s clients are welcomed children ready for bed – before gearing up getting an insight into everybody’s in workwear and muddy boots – Lynda for a second shift. life – we have a wee flavour of all these doesn’t bat an eyelid due to her farming She works extremely long hours, but different lives.” background. “I dress more informally too. loves her work because she says there’s It’s not unusual to find me in runners.” always something new to be learned. “I love Home and away And it’s runners she needs, as she dashes the variety of a general practice, hopping It was the same when Lynda was growing to school pick-ups, the childminder, court, from probate, to personal injuries, crime up, helping her parents run the family pub and back home in the evenings to get the and property. It’s so interesting – you’re and hearing the customers’ stories. 32 PROFILE April 2021 Law Society Gazette gazette.ie
Her parents were also hardworking multi- taskers, being farmers and undertakers, as well as publicans. “There was never a dull moment in our house as kids – if we weren’t serving customers in the bar, we were helping prepare a coffin! “We were brought up in the pub, as we lived above it, so we ate our dinner, did our homework and entertained our friends in the pub. My siblings and I actually all met our spouses in the family pub.” While there are no lawyers in her family, Lynda, the youngest of four, was drawn to the law and was the first in her family to go to university – to NUI Galway, where she excelled. This was followed by a training contract at A&L Goodbody, which was a great foundation for a legal career, with excellent methodology and attention to detail. “When I came to Dublin, I was a bit overwhelmed. I didn’t even know what a bagel was, and there was an entire shop in the IFSC selling bagels!” she laughs.
ut ultimately, city life in a big city firm just wasn’t for Lynda. With a house- building project already underway, a “I’m a home bird,” she confides, and was the principals must stay on top of their game futureB in her home county of Monaghan was delighted to be offered a position at Coyle, all the time, to keep bringing in business, always on the cards. Kennedy, Smyth when she qualified. “I while working at speed.” On the day she received her parchment at landed in Monaghan, and it was a steep Blackhall Place, in February 2006, her future learning curve in terms of the work they Sons and daughters husband Damien proposed, slipping a ring on were doing. It was a different kind of law But being self-employed has brought its own her finger on the James Joyce bridge over the from the commercial work I was trained challenges: “You do have to plan ahead so River Liffey. The couple married the following in.” you have a contingency plan for holidays and October. “I’m with Damien since I was 18 Reflecting on the lot of the self-employed maternity leave, and the work is still on your and he’s a great husband and father – he’s very professional, Lynda speaks plainly: “Any desk when you get back. hands-on at home and supportive to me. business is only as good as its referrals, and “The main benefit I see in terms of being self-employed is the flexibility. You get the work done, but I can collect the kids from school if needed or bring them to a football SLICE OF LIFE match.”
Influences? Cats or dogs? ynda acknowledges that there’s no high- n My dad, Liam. He’s just so wise – in my n We have a Pomeranian called Petey. He’s flying lifestyle accruing from work as a eyes anyway! In terms of events, that would be great with the children. rural solicitor, however rewarding and the birth of my four children – I’ll never forget privilegedL that work may be. Though the cost how amazing it felt seeing them for the first Film favourite? of living is low in Monaghan, relative to the time. n Dirty Dancing – it’s a classic! Closely city, Lynda and her husband and family have a followed by Footloose. modest, though comfortable life, only because Book in her bag? of all their hard work. n Into the Woods by Tana French. My favourite Must-visit eatery? Lynda also sacrificed extended time with her book is The Catalpa Tree by Denyse Devlin. It n The Courthouse in Carrickmacross – they do four babies and was back at her desk within a has stayed with me over the years when I can’t fabulous fish dishes. few weeks of giving birth each time, often with remember a lot of the others. a nursing newborn in tow. Favourite sports star? “It was great to be able to take the babies into Foot-tapper? n My wee man Liam plays soccer and GAA – work while I was still feeding them. I popped n Country – anything you can jive to! he’s my favourite sportsperson. the Moses basket in the corner and worked away. Clients passed no remarks,” she says. gazette.ie Law Society Gazette April 2021 PROFILE 33
THERE WAS NEVER A DULL MOMENT IN OUR HOUSE AS KIDS – IF WE WEREN’T SERVING CUSTOMERS IN THE BAR, WE WERE HELPING PREPARE A COFFIN! WE WERE BROUGHT UP IN THE PUB, SO WE ATE OUR DINNER, DID OUR HOMEWORK, AND ENTERTAINED OUR FRIENDS IN THE PUB
She acknowledges the ‘mammy guilt’, probably has the same issues. If I take six describing how she cried going back to the months’ maternity leave, I’m not generating office without her first baby – instead, the income for the business, plus putting childminder was getting to mind her while pressure on my colleagues. she was at work. “It can be hard to find a suitable locum,” Lynda adds, “and, of course, you still have ith four children under nine, to keep yourself when you are off. Your Lynda describes having no free overheads are still there, rent and rates, staff time for herself, but she gets and wages, insurance. And the law changes Winvolved in her kids’ activities where possible daily. There are practice directions popping – she’s even taken to learning the banjo with into the inbox regularly. a group of nine-year-olds! “For me, it was easier just to go back to “In years to come, I’ll probably look back work and push through it – but it was hard, and say returning to the office so soon wasn’t and I would be lying if I said I didn’t feel the the right thing to do – but at the time I to take full maternity leave, especially in a pressure and the guilt,” she admits. didn’t feel I had any other options, because, small town where you work so hard to build in a small practice, you are the product. For relationships and establish a client base. The secret life of us anyone self-employed, it can be difficult “I guess every self-employed mother While acknowledging that it’s good to have a hunger and something to strive for, at the end of the day Lynda is not driven by financial rewards. “Being in Monaghan means I’m close to home and close to my family, which means everything to me really. That is my reward. I still work in my parents’ pub on busy occasions, and I’m very close to my parents and siblings, who all live locally.” The rural practice, like everything else, is changing – and fast. PIAB and the new regime in personal-injury awards will mop up a lot of that business for small practices, she believes. There is a downward pressure on fees, and many areas of general practice are becoming more specialised. It’s challenging and worrying, but on balance, she loves her work, and jokes: “To be honest, it’s easier to go to work than stay at home with four Called to the bar – Lynda with her mam Anna and dad Liam in pre-COVID days kids!” 34 LITIGATION April 2021 Law Society Gazette gazette.ie
AT A GLANCE n In recent years, the legislature has reduced the time for bringing certain actions, and the courts have acceded to a number of applications to dismiss proceedings for delay n A number of applications to set aside renewals have worked their way through the High Court and resulted in conflicting opinions as to the applicable test, along with criticism of the adequacy of reasons provided in some grounding affidavits GETTING YOUR HOUSE IN ORDER The Rules of the Superior Courts (Renewal of Summons) 2018 amended order 8 of the rules, with effect from 11 January 2019. Caoimhe Ruigrok gets her ducks in a row
CAOIMHE RUIGROK IS A DUBLIN-BASED BARRISTER AND ACCREDITED MEDIATOR
ecently, a number of applications to set The courts recognise that the progression of aside renewals have worked their way cases and the avoidance of delays in litigation does through the High Court and resulted in not rest solely with the parties alone (Moynihan v conflicting opinions as to the applicable Dairygold Cooperative Society Ltd; Gilroy v Flynn), test, along with criticism of the but also with the courts, being an emanation adequacy of reasons provided in some of the State and the State’s obligations under grounding affidavits. The position has articles 6 and 13 of the ECHR to ensure a fair recently been clarified by the Court of trial in a reasonable time and an effective remedy Appeal in Murphy v HSE (2021). (McFarlane v Ireland). In recent years, the legislature has reduced the time for bringing certain actions, The order of things and the courts have acceded to a number of Order 8, rule 1 of the Rules of the Superior Courts applications to dismiss proceedings for delay. remains the same and provides that an application The reasoning is to ensure a plaintiff may be made to the Master during the currency commences proceedings within a of the summons: “No original summons shall be reasonable period and that the Statute in force for more than 12 months from the day of of Limitations must be available the date thereof, including the day of such date; to both sides of litigation on but if any defendant therein named shall not have a reciprocal basis (Moloney been served therewith, the plaintiff may apply v Lacey Building and Civil before the expiration of 12 months to the Master Engineering Limited). for leave to renew the summons.” gazette.ie Law Society Gazette April 2021 LITIGATION 35 PIC: SHUTTERSTOCK
THE COURT MUST CONSIDER WHETHER THERE IS SOME OTHER GOOD REASON FOR EXERCISING THE DISCRETION TO ORDER THAT THE SUMMONS BE RENEWED
Order 8, rule 2 provides: “The Master, to establish the other good reason why the subrule (2), application to extend time for on an application made under subrule (1), summons should be renewed. The ‘other leave to renew the summons shall be made to if satisfied that reasonable efforts have been good reason’ is not, as often mistakenly the court.” made to serve such defendant or for other believed, to be ‘other good reason for not Rule 3 sets out the procedure for good reason, may order that the original serving the summons’. In Lawless v Beacon applications after the expiration of 12 months or concurrent summons be renewed for Hospital (2019), Peart J held that the rule and that such applications should be made three months from the date of such renewal “enables the court to order renewal either to the High Court, “notwithstanding that an inclusive.” where reasonable efforts to serve have been order may have been made” by the Master, and Rule 2 allows the Master to renew the made within the time, or for other good the High Court may grant a further renewal original or concurrent summons for three reason. The words ‘other good reason’ for a period of three months (Downes v TLC months. The Master may renew a summons are not linked to the failure to serve the Nursing Home Limited and Murphy v HSE). once where the application is made during summons, as the trial judge states. Rather, Order 8, rule 4 says: “The court on an the currency of the summons and where the the court must consider whether there is application under subrule (3) may order a plaintiff has demonstrated (a) reasonable some other good reason for exercising the renewal of the original or concurrent summons efforts to serve the summons or (b) where discretion to order that the summons be for three months from the date of such renewal they have established “other good reason”. A renewed.” inclusive where satisfied that there are special plaintiff is required to establish which ground circumstances which justify an extension, such they are relying on and set out those grounds Application to extend circumstances to be stated in the order.” in the grounding affidavit. Order 8, rule 3 provides: “After the expira- The amendment to rule 4 reduces the period Where a plaintiff relies on the ‘other tion of 12 months, and notwithstanding a summons can be renewed “from six months good reason’ limb, the plaintiff is required that an order may have been made under to three months, [which] may indicate an 36 LITIGATION April 2021 Law Society Gazette gazette.ie PIC: GAZETTE STUDIO
‘I don’t have my ducks in a row‘
intention to tighten procedures” (Murphy v rule makers”. It was further noted that “it is Governors of the National Maternity Hospital; ARF Management Limited). conceivable that if a summons was renewed Murphy v HSE (High Court); and Downes In Murphy v ARF, Meenan J held that the on the basis of special circumstances, such and O’Connor v HSE ). While the majority High Court may only renew the summons special circumstances might persist beyond in the High Court appeared to prefer or once, and this interpretation was cited with the three-month period of renewal, or further accepted a two-step test, the Court of approval in Downes. While not relevant special circumstances might arise”. Appeal in Murphy v HSE held that a single- to the case before the court, the Court step test applies, and there is no requirement of Appeal in Murphy v HSE said that the Step on to first seek leave to extend time to bring the amended rule 4 “does not contain any clear Recent case law has also given rise to much application. or express provisions limiting the number debate as to the applicable test, and whether The Court of Appeal then considered of renewals, and that this would have been it is a one or two-step test (Murphy v ARF; the single-step test, which is that the court set out explicitly if it was the intention of the Ellahi v Governor of Midlands Prison; Brereton v must be “satisfied that there are special
WHERE A PLAINTIFF RELIES ON THE ‘OTHER GOOD REASON’ LIMB, THE PLAINTIFF IS REQUIRED TO ESTABLISH THE OTHER GOOD REASON WHY THE SUMMONS SHOULD BE RENEWED. THE ‘OTHER GOOD REASON’ IS NOT, AS OFTEN MISTAKENLY BELIEVED, TO BE ‘OTHER GOOD REASON FOR NOT SERVING THE SUMMONS’ gazette.ie Law Society Gazette April 2021 LITIGATION 37
A DEFENDANT SEEKING TO SET ASIDE THE RENEWAL OF A SUMMONS SHOULD ISSUE THEIR MOTION PRIOR TO ENTERING AN APPEARANCE, AND ANY DEFAULT APPLICATIONS THAT MAY ISSUE SHOULD BE ADJOURNED UNTIL A COURT HAS DETERMINED THE APPLICATION TO SET ASIDE circumstances which justify an extension” Affidavits of a summons should issue their motion and said the special-circumstances test is Given that the application under order 8 is prior to entering an appearance, and any higher than the original ‘good-reason’ test, ex parte, it is essential that all relevant facts default applications that may issue should but is below the bar of ‘extraordinary’ – and are laid before the court hearing the renewal be adjourned until a court has determined the special circumstances relied upon should application, and the court hearing the the application to set aside (Downes).Where be considered on a case-by-case basis. application to set aside. a defendant enters an unconditional A number of judgments make reference appearance, the appearance will cure any he Court of Appeal went on and to deficiencies in affidavits grounding defect in service, including the service of approved the analogy offered by applications to renew where affidavits contain an expired summons (Lawless). Hyland J in Brereton that the test of misrepresentations (Whelan v Health Service T‘special circumstances’ as it applies resisting a Executive), inconsistencies/contradictions claim for security for costs was useful, and that (Downes) or no meaningful explanations “the court should consider whether it is in (Ellahi). LOOK IT UP the interests of justice to renew the summons, The courts have become increasingly critical CASES: and this entails considering any general or of general grounds relied upon in grounding n Brereton v Governors of the National specific prejudice or hardship alleged by a affidavits – for example, inadvertence on the Maternity Hospital [2020] IEHC 172 defendant, and balancing that against the part of legal advisors (Congil Construction Ltd n Chambers v Kenefick [2005] IEHC 526 prejudice or hardship that may result for a (In Liquidation) v Kitt; Downes; Murphy v HSE n Congil Construction Ltd (In plaintiff if renewal is refused”, which reflects in the Court of Appeal); the plaintiff’s claim Liquidation) v Kitt [2018] IEHC 247 the principles set out in Chambers v Kenefick being statute barred (Murphy v ARF); and the n Downes v TLC Nursing Home Limited (2005). absence of an expert report where the plaintiff [2020] IEHC 465 The continued provisions for the failed to obtain the necessary reports in a n Ellahi v Governor of Midlands Prison renewal of a summons, and the possibility timely manner. [2019] IEHC 923 of more than one renewal in the High n Gilroy v Flynn [2004] IESC 98 Court, may provide some comfort – but here the delay can be explained n Lawless v Beacon Hospital [2019] it does come with a caution. In Brereton, a and efforts were made to obtain IECA 256 delay of ten weeks was viewed as being at reports in a timely manner, a court n McFarlane v Ireland (application no the outer limit of what the court deemed willW consider the particular facts (Murphy v 31333/06) acceptable, considering the facts of that HSE), but where inadequate reasons were n Moloney v Lacey Building and Civil case. Previously, leniency was afforded by offered for a delay (Ellahi), a court may refuse Engineering Limited [2010] 4 IR 417 courts hearing ex parte applications, in the to renew or may set aside any such renewal. n Moynihan v Dairygold Cooperative knowledge that a defendant could bring The failure to notify defendants of legal Society Ltd [2006] IEHC 318 proceedings has given rise to some criticism an application to set aside any renewal, n Murphy v ARF Management Limited but the courts’ requirement to set out the (Moloney) but, in a claim giving rise to a [2019] IEHC 802 special circumstances relied upon in the ‘notifiable event’ in professional-negligence n Murphy v HSE [2021] IECA 3; [2020] order may give rise to greater scrutiny in proceedings, a court should be slow where IEHC 483 ex parte applications. Further, awareness of the notification itself may have serious n O’Connor v HSE [2020] IEHC 551 successful applications to set aside renewals consequences for some professionals (Murphy n Whelan v Health Service Executive may encourage more defendants to apply to v HSE, Court of Appeal). [2017] IEHC 349 set aside renewals. A defendant seeking to set aside the renewal 38 PERSONAL INJURIES April 2021 Law Society Gazette gazette.ie CAREFUL NOW! Practitioners acting for both plaintiffs and defendants must be cognisant of the requirements under sections 12-14 of the Civil Liability and Courts Act 2004 relating to pleadings. ‘Mind your pleas and Qs,’ warns Brian Hallissey
BRIAN HALLISSEY IS A BARRISTER PRACTISING IN PERSONAL INJURIES AND PROFESSIONAL NEGLIGENCE LITIGATION
AT A GLANCE n Recent High Court and Court of Appeal decisions have brought the art of pleading into focus n Courts expect pleadings to be clear and concise n Generic or ‘boilerplate’ indorsements of claim will not be well received n Beware blanket denials, as they may compel further particulars of the claim n Plaintiffs and defendants must be able to stand over all pleas contained in the pleadings
number of recent decisions of wrongdoing are in boilerplate form, of the Court of Appeal expressed in such generic terms as to be and High Court have utterly uninformative ... for instance, it brought pleadings into the is said, without more, that the ESB failed spotlight, both for plaintiffs to provide a safe place of work for the and defendants. In Morgan plaintiff. It is also said the ESB was in v ESB, the plaintiff alleged breach of the Safety, Health and Welfare that he slipped and fell at at Work Act 2005. No clue is given as the defendant’s premises. He to what provision of that act the ESB succeeded in the High Court, was said to be in breach of, or what act but this was overturned on or omission on its part constituted such appeal. breach.” Of interest is the judgment Noting that the ‘cover-all-bases’ art of delivered by Collins J (in which he agreed pleading was no longer permissible since with the lead judgment of Noonan J), and the introduction of the Civil Liability and in which was highlighted the generic style Courts Act 2004, he concluded that: “A of the indorsement of claim in the case plaintiff is required to plead specifically before him: “The majority of the particulars and cannot properly rely on the pleading gazette.ie Law Society Gazette April 2021 PERSONAL INJURIES 39 PIC: WIKIMEDIA COMMONS
equivalent of the Trojan Horse, which can, had not given fully informed consent. The a bald denial – appears to be precisely what as needed, spring open at trial and disgorge defendant had delivered a blanket defence, this part of section 13(1)(b) is targeted at. As a host of new and/or reformulated claims.” including the following plea: “The first already noted, there may be circumstances defendant denies that they failed to obtain where it is not possible to give particulars of a Tentacles of doom the plaintiff’s informed consent prior to denial, but where it is possible, section 13(1)(b) It is to be noted, also, that an overly prolix surgery on 7 October 2015.” mandates the provision of such particulars.” personal injuries summons containing such ‘boilerplate’ pleadings might have cost articulars were raised in respect of Escape from victory implications under order 19, rule 4 of the this plea, seeking precise particulars Noonan J also sharply criticised a plea of Rules of the Superior Courts. of the information allegedly given, contributory negligence in the defendant’s Morgan was not the first time Collins byP whom and when. The defendant refused defence in Naghten v Cool Running Events J had considered the 2004 act. In Crean to provide the particulars sought on the Limited. In this case, the plaintiff was v Harty, the plaintiff had undergone hip basis that it was a “straight denial of a plea ice-skating on an ice-rink when she surgery and alleged that, as a consequence, contained in the personal injuries summons. (unsurprisingly) slipped. Unfortunately, he had suffered peripheral neuropathy It is not permissible to raise particulars another skater skated over her hand, causing of his right lower leg. There was no upon a denial.” However, Collins J rejected a laceration. She alleged that the defendant allegation of negligence in relation to the this assertion, noting: “A straight denial – had been negligent in, among other things, surgery; rather, the plaintiff claimed he perhaps more accurately characterised as allowing too many participants onto the rink. 40 PERSONAL INJURIES April 2021 Law Society Gazette gazette.ie
The incident had been captured on CCTV, barrister’s perspective, rule 5.5 of the Code of which was a key issue for the court. Conduct expressly prohibits a barrister from The defence alleged that the plaintiff drafting any pleading, witness statement or (who was a minor at the time) was guilty of affidavit that is not supported by the client’s contributory negligence, in that she, among instructions. other things, “acted in such a manner that she The potential consequences of a plea knew or ought to have known would cause improperly made in pleadings – but not her personal injury”. This plea was criticised advanced at the hearing – was recently seen in by the court on the basis that the incident Doyle v Donovan. The case arose out of a road- was captured on CCTV, and no witnesses traffic accident, and the defendant alleged as to fact were called by the defendant, in her defence that the plaintiff deliberately therefore leading to the conclusion that no caused the collision. In the Circuit Court, staff members were able to lead evidence of ever existed, have long since passed. Section the defendant did not stand over the plea any alleged inappropriate behaviour on the 14 of the Civil Liability in Courts Act 2004 and, in terms of the evidence, the furthest the part of the plaintiff. obliges plaintiffs and defendants alike to swear defence went was that the plaintiff had braked an affidavit which verifies any assertions or suddenly and this may have been negligent. further plea was made that the allegations contained in pleadings in personal- On appeal, the defendant conceded liability, plaintiff’s mother had failed to injuries actions … The focus of section 14 and the case proceeded as an assessment, supervise the plaintiff or have regard is most commonly on plaintiffs, particularly but no application was made to amend the forA her safety. Again, the court concluded this when taken in conjunction with section 26 pleadings. The plaintiff sought aggravated plea was “advanced without any evidential dealing with fraudulent claims. This case damages, but this was refused by Simons J. He basis and, indeed, on the contrary, in the teeth provides a timely reminder that section 14 stated that it was inappropriate to do so, as: of the [CCTV] evidence, which was at all applies with equal force to defendants, and a) The swearing of a false or misleading times in the defendant’s possession”. careful consideration is required before pleas affidavit of verification was a criminal There was a further plea that that the of the kind that are seen in this case are offence and it would, therefore, normally mother had failed to seek proper treatment advanced, which I would deprecate in the not be necessary for a court to impose or to take any steps to alleviate her daughter’s strongest terms.” an additional sanction by an award of pain and suffering. The court concluded that The case is a clear reminder that a aggravated damages, this was a serious and hurtful allegation of defendant must take the utmost care when b) The conduct of the defendant was neglect, and no credible attempt was made to delivering a defence, particularly where confined to the plea in the defence, and stand over it at the trial. CCTV exists of the incident. Clients should the impugned plea was not actually put to However, the court was most critical of always be advised that it is an offence to swear the plaintiff in the Circuit Court, and the the fact that the director of the company – a misleading or false affidavit under section defendant herself did not stand over the who had signed the affidavit of verification 14(5) of the Civil Liability and Courts Act 2004. plea, and did give evidence for the defendant – c) There was an asymmetry between plaintiffs distanced himself from the pleas under cross- Speed 3 and defendants, as there was no way of examination, and stated they were not made A plea that remains in the pleadings, even sanctioning a plaintiff who was guilty of on his instructions. The court concluded: if not advanced at the hearing, can lead to litigation misconduct, and “The days of making allegations in pleadings criticism from the courts if it is one that has d) It is more appropriate to sanction litigation without a factual or evidential basis, if they no evidential basis. Furthermore, from a misconduct by an appropriate costs order.
A DEFENDANT MUST TAKE THE UTMOST CARE WHEN DELIVERING A DEFENCE, PARTICULARLY WHERE CCTV EXISTS OF THE INCIDENT. CLIENTS SHOULD ALWAYS BE ADVISED THAT IT IS AN OFFENCE TO SWEAR A MISLEADING OR FALSE AFFIDAVIT gazette.ie Law Society Gazette April 2021 PERSONAL INJURIES 41
AN OVERLY PROLIX PERSONAL INJURIES SUMMONS, CONTAINING SUCH ‘BOILERPLATE’ PLEADINGS, MIGHT HAVE COST IMPLICATIONS UNDER ORDER 19, RULE 4 OF THE RULES OF THE SUPERIOR COURTS
In the subsequent costs hearing, Simons J In the High Court, Cross J refused to the civil proceedings, a deponent who swears noted that, between the conclusion of the award the defendant its costs against the a misleading affidavit of verification commits Circuit Court hearing and the High Court plaintiff, and this was appealed by the an offence. hearing and costs hearing, no explanation or defendant. The Court of Appeal agreed that apology had been offered by the defendant Cross J was entitled to mark his disapproval inally, absolute care must be taken and, instead, a further issue was raised in of the line of questioning, which was pursued where a plea is made in a defence respect of the special damages that had been even after the court had indicated that it did expressing or implying fraud without claimed by the plaintiff, which suggested not consider the line of questioning proper. Fprima facie grounds for doing so, as the that there had been an exaggeration of The Court of Appeal allowed the appeal, but court will be at large to make an award of his special damages in the sum of €30 (for only allowed the defendant to recover 50% aggravated damages or costs on a legal- over-the-counter medicine). This had not of its costs, which it considered to be a more practitioner-and-client basis. It may be been put to the plaintiff at the hearing. The proportionate order. necessary to amend the pleadings, even court concluded that it was satisfied that the When considered in conjunction with prior to an appeal, in order to avoid such defendant and her insurer had engaged in the cases set out above, this decision would consequences. precisely the type of litigation misconduct that seem to indicate that a costs sanction could justified the making of an award of costs on equally apply to a successful defendant who the higher ‘legal-practitioner-and-client’ basis. has delivered a defence with an improperly made plea. LOOK IT UP he decision in can be contrasted Doyle CASES: with Stokes v South Dublin County Go on, go on, go on n Crean v Harty [2020] IECA 364 Council, where Barr J awarded Practitioners for both plaintiffs and n Doyle v Donovan [2020] IEHC 11 and Taggravated damages of €5,000 to the plaintiff defendants must be cognisant of the [2020] IEHC 119 following an allegation that his claim was a requirements under sections 12-14 of the n Morgan v ESB [2021] IECA 29 fraudulent one. This was pursued in cross- Civil Liability and Courts Act 2004. Courts will n Naghten v Cool Runnings [2021] examination, and so differs from Doyle under expect pleadings to be clear and concise, and IECA 17 point (b) above. it would seem that a generic or ‘boilerplate’ n O’Carroll v Áras Sláinte Limited & Ors indorsement of claim will not be received [2020] IECA 127 well. Equally for defendants, care should be Down with this sort of thing n Stokes v South Dublin County Council Finally, can a successful defendant who is guilty given to a blanket denial, as it may still expose [2017] IEHC 229 of litigation misconduct face a sanction? the defendant to an order compelling further A parallel can be drawn with particulars of the claim. O’Carroll v LEGISLATION: . This was a medical Plaintiffs and defendants must be able to Áras Sláinte Limited & Ors n Code of Conduct for the Bar of negligence action in which the plaintiff’s case stand over all pleas contained in the pleadings. Ireland was dismissed. However, she was ‘robustly’ Perhaps more importantly, if there is evidence n Civil Liability and Courts Act 2004 cross-examined by the defendant and, that undermines the plea that is available to n Order 19, rule 4 of the Rules of the in particular, a picture of the plaintiff on the defendant at the time of the delivery of Superior Courts Facebook was put to her, with the suggestion the defence (such as CCTV), it is likely to be n Safety, Health and Welfare at Work that she was not being truthful with her the subject of, at best, severe criticism and, at Act 2005 evidence regarding her injuries. worst, a sanction in terms of costs. Outside of 42 WELLBEING April 2021 Law Society Gazette gazette.ie
In an American study into loneliness, lawyers came out on top as the loneliest profession. Does this surprise you? Andy Nazer investigates
ANDY NAZER FORMERLY LED A VARIETY OF PROJECTS AT THE CAMPAIGN TO END LONELINESS LONELY ARE THE BRAVE
AT A GLANCE n Loneliness can be relentless and become the centre of a person’s life – and it’s difficult to talk about n Most of us keep quiet about loneliness because there are misconceptions of loneliness as a personal failing n Loneliness and social isolation can cause harm to our physical and psychological wellbeing – there is evidence that it shortens lives and, for most, it diminishes the quality of life and work
awyers are generally seen by society as intellectual, confident, reliable, capable, and logical people. When they are feeling vulnerable or worried, it can be difficult to open up and talk because of these societal expectations. There may also be concerns about confidentiality and the effect of gossip on potential business. Stressful workplaces gazette.ie Law Society Gazette April 2021 WELLBEING 43 PIC: SHUTTERSTOCK
and interpersonal environments can further finding my own space to work that was quiet you to constantly present yourself in the best compound the problem. This all sounds very and sympathetic wasn’t easy! Outside this possible light, accept disappointment (losing lonely. issue, my days are filled with Zoom meetings a case, confronting errors), maintaining I asked a young solicitor about her with clients and colleagues, phone calls, client confidentiality, suppressing your working life during the pandemic, and this is online research, document review, preparing emotions, and having to present as strong what she shared: “I flat-share and so simply cases, strategising, etc. The role requires when inside you are feeling vulnerable.” 44 WELLBEING April 2021 Law Society Gazette gazette.ie PIC: SHUTTERSTOCK I am sure some of you can add to this loneliness, however, is changing this. Press list of issues. You may also be experiencing articles, and hopefully readers like you, financial pressures, practice politics, soaring will help break the stigma associated with pressures on your private life, or you may loneliness. be worried for your career. Is it any wonder then that words like ‘burnout’, ‘isolation’ and f you are experiencing loneliness, know ‘loneliness’ are regularly appearing in our that you are not alone. According to the media at the moment? Central Statistic Office’s most recent researchI on wellbeing (February 2021), over Empty rooms 26% of individuals surveyed felt lonely ‘all Loneliness can be relentless and become the or most of the time’ in the four-week period centre of a person’s life. It’s difficult to talk prior to being interviewed. Interestingly, about. It’s difficult, sometimes, even to talk female respondents were nearly twice as about talking about it. likely to report such feelings compared Loneliness is different for each of us. with men (17% female; 9.2% male) and It can be social, where you lack a wider respondents living in rented accommodation network; emotional, where you miss an were twice as likely to report feeling lonely individual or group of people; or existential, ‘all or most of the time’ than those in owner- where you find it difficult to connect with occupied dwellings (22.2% v 10.3%). In others and feel separated from society. addition, 41.7% of respondents rated their For me, it is the cavity between the social levels of human contact and connection, a overall life satisfaction as ‘low’ right now. connections in my life and the connections I reduction of informal and formal support, This is the highest rating for ‘low’ overall would like. unshared grief, and increasing social anxiety life satisfaction captured in CSO surveys to are significant contributing factors. As social date. In 2013, when many households were or many, loneliness is transient – it animals, we have an innate desire to belong. suffering the effects of the 2007 financial comes and goes throughout our We don’t always experience this consciously, crisis, this rate was 15.3% and it dropped lives. It can be situational or chronic but it resides deep within us. In the past, to 8.7% in 2018, when the economy was F– occurring at a certain time of the week/ we lived in tribes. Today, our ‘tribe’ is often growing strongly. month/year or overwhelming and long our immediate family or work colleagues. lasting. It does not discriminate and can Belonging is personal. People often describe Only the lonely strike anyone at any time. It affects the it as feeling ‘socially connected’ or being While loneliness and grief are two separate young, the old. and those in between. In part of a ‘community’ where they feel secure. concepts, grief often opens the door to normal times, some sections of society Since March 2020, much of this has been loneliness. The collective grief we are are more vulnerable to loneliness, but the missing from our lives. experiencing in the pandemic is similar to that pandemic has largely changed that. Now Unfortunately, most of us keep quiet about associated with chronic loneliness. We share anyone can experience loneliness. loneliness because there are misconceptions the grief for thousands of lives lost, the loss It can be personal and painful and often of loneliness as a personal failing, or as only of connection with the people we care about, enters unannounced and unnoticed. There affecting older people and or the introverted. and the loss of the life we once had. For are numerous causes of loneliness, but lower The increasing dialogue taking place around some, this includes the loss of employment,
LONELINESS CAN BE A REMINDER THAT WE NEED SOMETHING. THERE WILL BE ELEMENTS OF YOUR LIFE YOU CAN’T CONTROL, SO ASK YOURSELF WHAT YOU CAN CONTROL AND WHAT YOU CAN DO TO FILL THIS NEED. A GOOD PLACE TO START IS BY INCREASING THE NUMBER OF DAILY CONTACTS WITH OTHER PEOPLE gazette.ie Law Society Gazette April 2021 WELLBEING 45
IN NORMAL TIMES, SOME SECTIONS OF SOCIETY ARE MORE VULNERABLE TO LONELINESS, BUT THE IMPACT OF THE PANDEMIC HAS LARGELY CHANGED THAT. NOW ANYONE CAN EXPERIENCE LONELINESS opportunities, dreams, relationships, our daily levels and reduced staff retention within Remember, these authentic, warm moments routines, and meeting friends and family. It workplaces. Within a legal context, it has of connection really count and can be very may be compounded by a sense of losing one’s been reported anecdotally that loneliness nourishing, even though low-key. identity – who am I anymore, without all of affects how we focus on tasks, communicate The final but possibly most significant these activities, relationships and routines that with clients, and make deadlines. Lonely action you or your practice could take is to previously shaped my life? professionals have also told me that it affects celebrate and encourage acts of kindness. Over the coming months and years, as their mood, stress levels, self-esteem, sleep Kindness, consideration, and empathy in the we navigate towards a ‘different life’, we habits and relationships at work and home. workplace create a ripple effect throughout will process the grief we have accumulated Accepting you are lonely is a good place the organisation. You might start with being and try to free ourselves from the burden of to start. Approximately one in four of us is warmer and kinder to yourself first, giving loss, disconnection, and loneliness. Many experiencing loneliness, so you are not alone yourself a break and noticing when the of us may find this will take a period of and there should be no stigma associated critical inner voice creeps in. If we are kind adaption. We may still feel disconnected, with seeking out greater connection. It is to ourselves, it is easier for us to be more disorientated, and emotionally absent from a feeling we all share and have at different compassionate, concerned, and empathetic society, but find ourselves physically back in times in our life. Identifying the causes is to others. our communities and workplaces. a first step to building a pathway back to Before loneliness becomes overwhelming, When this transition happens, it will be better connection. speak to a professional counsellor or your important to identify how we feel, grow doctor. It’s important to recognise that you more accepting towards ourselves, and aving a sense of belonging is are not alone and, just like the pandemic, offer kindness and gentleness to ourselves fundamental to building resilience most people’s loneliness will pass. and each other. Minding each other, against loneliness. Maybe we can all with tenderness, we can regain positive learnH from this pandemic about what type of You might want to find out more about connections and a sense of belonging to help connections and what extent of connections LegalMind, the independent and confidential us process our experience. we want in the future. Ask yourself: what mental health support that is available to Law type of connection do I need, who do I want Society members and their dependants at any A million miles away to connect with, who would I like in ‘my time of the day or night. If you wish to speak Loneliness and social isolation can cause tribe’, and how can I strengthen or rebuild to a mental-health professional today, you can harm to our physical and psychological my community moving forward? call LegalMind on 1800 81 41 77 for in-the- wellbeing. Like smoking and obesity, there moment support. is evidence that chronic loneliness shortens Waiting on a friend lives. For most, it diminishes the quality of Listen to the loneliness. What is it telling life and work. you? Loneliness can be a reminder that we Experiencing poor social connections need something. There will be elements of LOOK IT UP and loneliness within the workplace can your life you can’t control, so ask yourself n ‘Lawyers rank highest on loneliness impair your executive function. It reduces what you can control and what you can do scale, study finds’, ABA Journal, 3 task performance and blights your powers to fill this need. Then make the effort to do April 2018 of reasoning, efficiency, planning, emotional so. A good place to start is by increasing the n ‘Social impact of COVID-19 survey: regulation, analysis, abstract thinking, number of daily contacts with other people. wellbeing’, Central Statistics Office, and accurate decision-making. It affects Say a simple ‘hello’ to the neighbours, February 2021 productivity and results in increased sickness the supermarket cashier, or the barista. 46 ANALYSIS News in depth April 2021 Law Society Gazette gazette.ie WHEN TWO WORLDS COLLIDE AI affects IP and has implications for it, but the intersection between them is complex and not without tensions. Mark Hyland boots up his floppies
DR MARK HYLAND IS IMRO ADJUNCT PROFESSOR OF INTELLECTUAL PROPERTY LAW AT THE LAW SOCIETY AND IS A LECTURER AT THE COLLEGE OF BUSINESS, TU DUBLIN
he idea of ‘a machine learning’ and ‘deep learning’ Deus ex machina that thinks’ dates back to are two subsets of AI. In recent The significance of AI cannot be ancient Greece. But the years, with the development of overstated. AI is bringing con- Tyears 1950 and 1956 are par- new neural networks techniques siderable benefits to individu- ticularly significant in the evo- and hardware, AI is usually per- als, professions, businesses, and lution of artificial intelligence ceived as a synonym for deep communities across Ireland. (AI). supervised machine learning. Already, automation can sig- In 1950, Alan Turing pub- The British government has nificantly speed up the creation, lished a paper in which he defined AI as “technologies with review and redaction of legal attempted to answer the ques- the ability to perform tasks that documents, and precision/accu- tion ‘can machines think?’ In would otherwise require human racy is not compromised in the addition, he formulated the intelligence, such as visual per- process. Two important time- ‘Turing Test’ to determine if a ception, speech recognition, consuming tasks in a law firm LIKE THE computer can demonstrate the and language translation”. This – legal research and discovery – same intelligence (or the results definition was used by Britain’s can be achieved very effectively INTERNET of the same intelligence) as a Intellectual Property Office in and considerably faster by AI. OF THINGS, human. The value of the test its 2020 public consultation on Predictive technology is also has been debated ever since. IP/AI. being used more and more in ROBOTICS, The term ‘artificial intel- ‘Intellectual property’ refers litigation to predict the outcome ligence’ was actually coined in to creations of the mind, such as of court proceedings. BLOCKCHAIN 1955, but the term was popular- inventions, literary and artistic Like other countries, Ireland AND 3D ised in 1956 by John McCarthy works, designs, symbols, names is developing its own national and Marvin Lee Minsky dur- and images used in commerce. AI strategy in order to harness PRINTING, AI IS A ing a multidisciplinary summer The principal intellectual the opportunities presented and workshop that proved to be a property rights (IPRs) are pat- to manage the impacts. The TECHNOLOGICAL seminal event – from that point ents (which protect inventions), Department of Business, Enter- DISRUPTOR. onwards, AI became a field of trademarks (distinctive signs prise and Innovation ran a public research in its own right within that identify and protect certain consultation process in late 2019, TOGETHER, computer science. goods/services produced by an seeking the views of all inter- individual or company), copy- ested parties/stakeholders on key THESE EMERGING AI? AI? Oh right (which protects original areas and issues that should be TECHNOLOGIES The World Intellectual Property literary, dramatic, musical and addressed by the strategy. The Organisation (WIPO) concedes artistic works) and design rights department also sought views ARE DRIVING that there is no universal defi- (which protect aesthetic aspects on what the guiding principles nition of AI, but posits that it is of a product). IPRs are intan- should be and how they could be THE ‘FOURTH aimed at developing machines gible assets and usually give the used to drive the design, devel- INDUSTRIAL and systems that can carry out creator an exclusive right over opment and deployment of AI in tasks considered to require his/her creation for a certain Ireland. REVOLUTION’ human intelligence. ‘Machine period of time. In June last year, Ireland made gazette.ie Law Society Gazette April 2021 News in depth ANALYSIS 47 PIC: SHUTTERSTOCK/GAZEWTTE STUDIO
The CyberKen Industries Tech22 HamstroidTM power matrix
a national submission to the nologies are driving the ‘Fourth 2019 WIPO Technology Trends WITH THE European Commission as part of Industrial Revolution’. AI is Report says that nearly 340,000 an EU-wide public consultation arguably the most potent disrup- AI-related patent applications DEVELOPMENT on AI policy and regulatory steps. tive force. Growth in comput- have been filed since the emer- OF NEW NEURAL Ireland’s submission was made in ing power, availability of data, gence of AI in the 1950s. The response to a commission white and progress in algorithms have Revised Issues Paper on Intellectual NETWORKS paper that promotes the uptake turned AI into one of the most Property Policy and Artificial Intel- of AI, while also addressing strategic technologies of the 21st ligence (WIPO/IP/AI/2/GE/20/1 TECHNIQUES the risks associated with it. In century. With AI’s exponential REV), dated 21 May 2020 and AND HARDWARE, response to the approximately growth, the stakes could not be prepared by the WIPO Secre- 1,200 submissions received, the higher. The way we approach AI tariat, covers the main IPRs, AI IS USUALLY commission produced a final will define the world we live in. along with data, trade secrets, report last November. Unsurprisingly, the forum the technology gap and capac- PERCEIVED AS A that has generated the widest ity building, accountability for SYNONYM FOR Disruptive technologies international audience and most IP administrative decisions and, Like the internet of things, robot- diverse views on the IP/AI inter- lastly, AI and unfair competition. DEEP SUPERVISED ics, blockchain and 3D printing, section is the WIPO Conversa- WIPO’s public consulta- MACHINE AI is a technological disruptor. tion on Intellectual Property tions (of which there have been Together, these emerging tech- and Artificial Intelligence. The three so far, September 2019, LEARNING BOOK NOW FOR AUTUMN DIPLOMA CENTRE 2021
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July 2020 and November 2020) in October 2020: Public Views bring together WIPO member on Artificial Intelligence and Intel- states and other stakeholders to lectual Property Policy and Invent- discuss the impact of AI on IP. ing AI: Tracing the Diffusion of One of the principal goals of the Artificial Intelligence with US pat- conversation is to help to bridge ents. Through these reports, the the existing information gap USPTO provides both qualita- between AI players and regula- tive and quantitative analysis on tors and to build broad awareness the intersection between AI and of the issues in this fast-moving IP law. The reports review cur- and complex field. rent IP statutory frameworks in Britain’s Intellectual Property the US, as well as patent filing Office ran a public consultation discussions, in August 2019, and grant patterns. on the IP/AI intersection and the the USPTO issued a request future of IP and AI policy from for comments on patenting AI Crystal balls 7 September to 30 November inventions. This was followed by It is clear from numerous public IRELAND IS 2020. Its call for views covered another request for comments consultations that the themes five IPRs: patents; copyright in October, this time concern- of AI and its interface with IP DEVELOPING ITS and related rights; trademarks; ing the impact of AI on other are really focusing the minds of OWN NATIONAL BOOK designs; and trade secrets. IP policy areas, including copy- policymakers, legislators, lawyers NOW FOR Respondents also had the oppor- rights, trademarks, database pro- and futurologists right across the AI STRATEGY AUTUMN tunity to provide views on mat- tections, and trade-secret law. world. The fact that WIPO is ters that cut across various IPRs. The USPTO received almost already planning its fourth ses- IN ORDER TO DIPLOMA CENTRE 2021 In the USA, the Patent and 100 comments for each public sion of the IP/AI Conversation Trademark Office (USPTO) consultation. for later this year demonstrates HARNESS THE Leaders in legal education with professional focus and practical insight organised a conference on IP/ Subsequent to the public con- how important and significant AI OPPORTUNITIES Flexible CPD recognised courses to suit a busy schedule AI on 31 January 2019. Build- sultations, two important reports is to be considered by the guard- ing on the momentum of those were published by the USPTO ian of international IP. PRESENTED COURSE NAME START DATE PRICE Certificate in Enforcement for Public Bodies (NEW) 13 April 2021 €1,650 MOOC in Environmental Law and Climate Change May 2021 Free Diploma in Law 3 September 2021 €4,600 Certificate in Aviation Leasing and Finance 30 September 2021 €1,650 Professional Doctorate in Law 4 October 2021 €5,500 Diploma in Environmental and Planning Law 5 October 2021 €2,600 Diploma in Family Law 5 October 2021 €2,600 Diploma in Finance Law 5 October 2021 €2,600 Certificate in Data Protection Practice 6 October 2021 €1,650 Diploma in Criminal Law and Practice 8 October 2021 €2,600 Diploma in Construction Law 9 October 2021 €2,600 Certificate in Property Law & Conveyancing for Legal Executives 9 October 2021 €1,750 Diploma in Judicial Skills and Decision-Making 13 October 2021 €3,000 Certificate in Mediator Training 13 October 2021 €1,650 Diploma in Tech and IP Law 13 October 2021 €3,000 Diploma in Commercial Property 26 October 202 €2,600 Diploma in Education Law 29 October 2021 €2,600 Certificate in Immigration Law and Practice 4 November 2021 €1,650 Diploma in Insolvency and Corporate Restructuring 6 November 2021 €2,600 Certificate in Trademark Law 9 November 2021 €1,650
CONTACT DETAILS e: [email protected] t: 01 672 4802 w: www.lawsociety.ie/diplomacentre
All lectures and workshops are webcast and available to view on playback, allowing participants to catch up on coursework at a time suitable to their own needs. Diploma Centre reserves the right to change the courses that may be offered and course prices may be subject to change. 04_21 50 ANALYSIS Eurlegal April 2021 Law Society Gazette gazette.ie PARALLEL BARS Brexit is likely to have significant implications for EU companies doing business in the UK, including buying UK-based companies and/or competing for contracts from UK public bodies/utilities, writes Cormac Little
CORMAC LITTLE SC IS A PARTNER AND HEAD OF THE COMPETITION AND REGULATION UNIT OF WILLIAM FRY AND THE CHAIR OF THE LAW SOCIETY’S EU AND INTERNATIONAL AFFAIRS COMMITTEE
otwithstanding the not face competition from UK determine whether a particu- withdrawal of the UK companies in receipt of state sub- lar subsidy will undermine EU/ from the EU on 31 sidies that do not conform to EU UK trade, the TCA identifies JanuaryN 2020, the true impact of rules on state aid. By contrast, the six ‘principles’. These condi- Brexit did not begin to become UK wanted a clean break from tions are broadly similar to the apparent until after the end of the the application of EU law, insist- evaluation criteria currently used transition period 11 months later. ing that it would not be bound by the European Commission Thankfully, after an often-tortu- by either evolving EU state-aid – such as the avoidance of over- ous series of discussions, the EU rules or by the Court of Justice of compensation, proportionality and the UK eventually agreed a the EU’s interpretation of same. and overall positive economic Trade and Cooperation Agreement After lengthy engagement, partly effect – in assessing potential aid (TCA) on 24 December 2020. played out in the media, a com- measures. This meant the potentially dire promise was reached, whereby Like the EU state-aid regime, AFTER LENGTHY economic consequences of a ‘no- the basics of EU state-aid law the TCA provides for specific ENGAGEMENT, deal’ Brexit were avoided. will apply in the UK (with special rules for certain industries/sec- State aid or public-subsidy provision for Northern Ireland), tors such as financial services PARTLY PLAYED control, one of the major bones albeit outside the CJEU’s remit. and air transport. Similarly, the of contention between the two In addition, the UK will create TCA makes special provision for OUT IN THE MEDIA, negotiating teams, is the subject its own independent subsidy con- certain policy objectives, such A COMPROMISE of lengthy treatment in the TCA. trol regime. (The relevant TCA as rescue/restructuring support While by no means as contro- provisions are contained in Part and export subsidies. The TCA WAS REACHED, versial a subject in the EU/UK Two, Title XI: Level Playing also requires the UK ultimately talks, public procurement is also Field for Open and Fair Compe- to introduce a de minimis exemp- WHEREBY THE addressed in detail by the TCA. tition and Sustainable Develop- tion of up to, approximately, BASICS OF EU In contrast, the TCA contains ment, Chapter 3.) €390,000 to a single undertak- scant provision regarding both While the UK is required to ing over three years. However, STATE-AID LAW merger control and competition- establish its own subsidy-control the TCA does not specifically rules. The TCA’s arrangements regime, the TCA does stipulate address industries such as road/ WILL APPLY IN THE regarding all four areas are con- some of its key features. The UK rail passenger transport and air- UK (WITH SPECIAL tained in its Part Two, dealing has abandoned the term ‘state ports, or activities like research, with trade, transport, fisheries aid’ and, instead, targets the development and innovation, PROVISION FOR and other arrangements). Irish grant of a ‘subsidy’. That said, that each benefit from special (and other EU businesses) need the definition of ‘subsidy’ is simi- treatment under EU state-aid NORTHERN to acquaint themselves with how lar to the EU’s definition of state rules. IRELAND), ALBEIT any changes in each of these four aid contained in article 107(1) of Under EU rules, state aid areas might affect their respective the Treaty on the Functioning of the cannot be granted unless it falls OUTSIDE THE dealings in the UK. EU, in that the former seeks to within one of the block exemp- PIC: SHUTTERSTOCK CJEU’S REMIT prevent financial assistance from tions or is otherwise approved Subsidy control the UK’s resources that is capa- by the European Commission. A key priority of the EU during ble of conferring an economic The TCA does not replicate News from the EU and International Affairs Committee. Edited by TP the negotiations was to ensure advantage that might affect trade either possibility. Theoretically, Kennedy, Director of Education that EU-based businesses would between the EU and the UK. To the UK may, therefore, adopt gazette.ie Law Society Gazette April 2021 Eurlegal ANALYSIS 51 PIC: SHUTTERSTOCK 52 ANALYSIS Eurlegal April 2021 Law Society Gazette gazette.ie
a regime that does not require and its functions have not yet tained in its Part Two, Title VI: prior approval for a subsidy to been decided. At one extreme, Public Procurement. Indeed, the be granted. Enforcement in both this body may simply have an TCA goes beyond the commit- regimes may also diverge. EU advisory role, including issuing ments of both the EU and the ALTHOUGH THE state aid has a well-established ex post observations on a relevant UK in the World Trade Organ- practice whereby aggrieved subsidy. At the other extreme, it isation’s Government Procurement TCA DEALS WITH third parties may complain to may have an enforcement role, Agreement (GPA). the commission regarding sup- particularly in issuing compli- The GPA applies in most of COMPETITION port granted to their respective ance advice before subsidies are the world’s major market econo- LAW IN A competitors. In addition, the granted and/or dealing with com- mies, such as the EU, US, Japan, commission’s decisions may be plaints from the business rivals of South Korea, Switzerland, Can- LACONIC and are often challenged before beneficiaries as a possible alterna- ada and, since 1 January 2021, the CJEU. While the UK has tive to judicial review. the UK. The GPA requires its FASHION, THE EU free rein to adopt whichever Finally, under article 10 of the signatories to guarantee fair and AND THE UK ARE enforcement mechanisms it Northern Ireland Protocol to transparent public procurement prefers, the TCA suggests that the so-called Withdrawal Agree- processes, while obliging them BOTH REQUIRED judicial review will be the pri- ment, the entirety of EU state- to treat suppliers based in other mary route that aggrieved third aid laws/guidelines will apply signatories in the same manner TO MAINTAIN parties may use to challenge the to the UK in respect any mea- as its domestic businesses for any EFFECTIVE grant of subsidies to their busi- sure that affects relevant trade relevant award procedure. ness rivals. between Northern Ireland and The TCA extends the com- LAWS TO The UK has some thinking the state/the rest of the EU. This mitments of both the EU and to do before its subsidy-control means that pan-UK subsidies the UK beyond the GPA. Sup- PROHIBIT BOTH regime is fully up and running. may fall under EU state-aid rules pliers in both jurisdictions have ANTICOMPETITIVE Downing Street will want to where, for instance, they benefit the right to compete for ‘above avoid disadvantaging UK busi- a Belfast-based firm doing busi- threshold’ contracts in gas/ ARRANGEMENTS nesses by making it more difficult ness in Dublin. energy distribution and in the AND ABUSES OF for them to receive state support provision of hospitality, real than their EU-based competi- Public procurement property, education, or telecom- A DOMINANT tors. Moreover, the identity of The TCA’s provisions on the munications services. In addi- the independent body to admin- award of contracts by both pub- tion, relevant contracts to be POSITION ister the new UK subsidy regime lic bodies and utilities are con- awarded by private entities act- gazette.ie Law Society Gazette April 2021 Eurlegal ANALYSIS 53 ing as utilities must also be open the UK is creeping toward a de tition rules is also likely to be to competition throughout the facto compulsory notification unlawful under UK competition EU/UK. regime, with fewer and fewer rules. Moreover, the UK courts The TCA also goes further merging parties willing to take and the CMA are required to than the GPA in seeking to the chance that their poten- interpret UK competition law ensure that award processes are, tially controversial transactions in line with EU competition to the extent practicable, run will go unnoticed by the CMA. precedent up to 31 December electronically. Moreover, where Indeed, UK merger control’s 2020. However, the UK author- a candidate needs to demonstrate ‘25% share of supply’ screening ities are not required to follow prior knowledge, such experi- test allows the CMA wide dis- EU competition case law after ence does not need to have been cretion to ‘call in’ transactions that date. Thus, divergences garnered in the territory where that may give rise to competi- are likely to emerge over time, the contracting entity is based, be tion concern. In addition, while complicating the compliance it the EU or the UK. The TCA an EUMR notification does efforts of businesses operating also requires both jurisdictions not require the payment of an in both the EU and the UK. to maintain effective domestic administrative fee, a fee of up to Indeed, like merger control, the dispute-resolution mechanisms. £160,000 may be payable to the potential for parallel commis- Any of the protections granted CMA, depending on the extent sion and CMA investigations by the TCA and the GPA may of the UK turnover of the target of the same conduct is real, not be relevant, should an EU business. provided it affects trade both entity incorporate a subsidiary in As UK turnover is no longer between EU Member States the UK or, indeed, partner with counted as EU turnover for the and also in the UK. By exten- a UK-based company before par- purposes of the EUMR’s alter- sion, the activities of a company ticipating in any relevant award native jurisdictional tests, allied or companies could be investi- process. to the fact that many multina- gated by both the CCPC for a tional companies have signifi- potential breach of Irish com- THE UK HAS Merger control cant business activities in the petition rules and by the CMA The TCA’s provisions (contained UK, the number of mandatory for a possible infringement of SOME THINKING in Part Two, Title XI, Chap- notifications to the commission UK competition rules. How- ter 2) on both merger control under the EUMR is likely to ever, the TCA does require the TO DO BEFORE and competition law are suc- fall. In such a scenario, merg- commission, the NCAs and the ITS SUBSIDY cinct. Each of the EU and the ing parties will need to consider CMA to coordinate on related UK commits under article 2 of whether their relevant trans- activities where appropriate CONTROL Chapter 2 to maintain their own action requires a notification and, to the extent permitted by individual rules governing trans- under the national merger-con- law, exchange information. REGIME IS actions that may have significant trol rules of the relevant Euro- FULLY UP AND anticompetitive effects. This pean Economic Area countries, Changes for business means that the EU Merger Regu- including to our Competition In addition to dealing with RUNNING. lation (EUMR), with its one-stop and Consumer Protection Com- increased ‘red tape’ for imports shop rule, no longer applies in mission (CCPC) and/or to the from or exports to Great Brit- DOWNING the UK. Accordingly, from 2021 respective national competition ain, EU businesses need to be STREET WILL onwards, transactions may need authorities (NCAs) in other EU aware of other effects of Brexit to be notified under both the Member States. The impact of that are likely to increase their WANT TO AVOID EUMR and UK merger-control Brexit is thus likely to trigger an costs and/or additional manage- rules. increase in the number of paral- ment time. Whether an Irish DISADVANTAGING The latter regime is a rare lel notifications. company is buying a UK-based UK BUSINESSES beast, in that it does not pro- business rival, or one of its vide for mandatory notifications. Competition competitors is in receipt of UK BY MAKING IT In other words, parties are free Although the TCA deals with Government support, whether to complete their transactions competition law in a laconic this company is competing for MORE DIFFICULT without clearance from the fashion, the EU and the UK are a UK public or utilities con- FOR THEM TO UK Competition and Markets both required to maintain effec- tract or just doing business in Authority (CMA). That said, tive laws to prohibit both anti- the UK, it will need to be aware RECEIVE STATE the CMA has a statutory duty to competitive arrangements and of the potential additional legal monitor merger activity, allied to abuses of a dominant position. complexities caused by the SUPPORT THAN the power to review unnotified For the time being, the status departure of our near neigh- THEIR EU-BASED transactions within four months quo remains – what is likely to bour from the EU and its single of completion. This means that be unlawful under EU compe- market. COMPETITORS 54 BRIEFING Council report April 2021 Law Society Gazette gazette.ie
REPORT OF LAW SOCIETY COUNCIL MEETING 19 MARCH 2021 Personal Injury Guidelines ing in May 2020. As part of its taken by bar associations and recognition between Ireland and Stuart Gilhooly reported on the report to the Council, the task individual solicitors across the the Law Society of England and recent adoption of the guidelines force made a number of recom- country was very much appreci- Wales. by the Judicial Council, which mendations in respect of how ated for its impact on the grass- He further reported on a voted 83 in favour and 63 against the Society and the wider profes- roots campaign of opposition recent meeting with the law soci- the new measures. sion could take positive steps to to the imposition of charges on eties of Northern Ireland, Eng- It was expected that the reduce the substantial environ- deposits. land and Wales, and Scotland amendments (to the Judicial mental impact of both. Ms Derivan confirmed that in respect of the development Council Act 2019 and the Per- In addition, and cognisant that further guidance and assistance of a competency framework for sonal Injuries Assessment Board Act the jurisdiction has no solicitor- would be provided to the profes- solicitors, and confirmed that the 2003), which would be necessary focused group of experts in the sion on the issue. matter was progressing well. to give effect to the guidelines, area, the task force recommended would be attached to the Family the appointment of a new Envi- Finance Retirement of the DG Leave Bill 2021 as it progressed ronmental Law Committee at Committee chair Chris Callan Following the appointment of through the legislative process. the Society, which would provide reported to the Council on rel- the deputy director general, Mr Gilhooly confirmed that guidance on relevant matters and evant matters, which included Mary Keane, as director gen- practitioners would be apprised public commentary on legislative practising certificate and mem- eral of the Law Society on an of the operative date for com- initiatives, as appropriate. bership numbers, considerations interim basis, the virtual meeting mencement of the new measures The Council will further con- in respect of Davy Stockbrokers, was joined by members of Ken once that date became available. sider the recommendations at its as well as the ongoing examina- Murphy’s family, the Law Soci- next meeting. tion of costs at the Society. ety’s senior management team, EAST and a great number of past- The chair, Flor McCarthy, Banking charges on deposits Education presidents, who expressed their reported on the work of the The chair of the task force, The chair of the committee, thanks to Ken Murphy for his Environmental and Sustainabil- Maura Derivan, reported on Martin Lawlor, reported that dedicated service – both to the ity Task Force (EAST), which progress since the last Council agreement had been reached Society and the profession – had been conducted entirely vir- meeting. with the Solicitors Regulation during his 26 years as director tually since its inaugural meet- The important role under- Authority in relation to mutual general.
LAW SOCIETY LIBRARY AND INFORMATION LAW SOCIETY LIBRARY AND INFORMATION LAWSERVICES SOCIETY – WE LIBRARY DELIVER! AND INFORMATION LAWSERVICES SOCIETY – WE LIBRARY DELIVER! AND INFORMATION LAWSERVICESDuring the SOCIETY current public – healthWE LIBRARY crisis, DELIVER! the library ANDis closed toINFORMATION visitors. The library team is working from home. LAWSERVICESDuringWe continue the SOCIETY current to respond public – to health WEyour LIBRARY legal crisis, DELIVER! research the library enquiries ANDis closed and to INFORMATIONdocument-delivery visitors. The library requests. team is working from home. SERVICESDuringWe continue the current to respond public – to health WEyour legal crisis, DELIVER! research the library enquiries is closed and to document-delivery visitors. The library requests. team is working from home. Unfortunately, it is not possible to lend books during this period. We have access to a large range of SERVICESDuringWe continue the current to respond public – to health WEyour legal crisis, DELIVER! research the library enquiries is closed and to document-delivery visitors. The library requests. team is working from home. Unfortunately,databases to answer it is not your possible enquiries. to lend Self-service books during access this to period. the entire We have Irish access judgments’ to a large collection range isof available viaDuringWe thecontinue onlinethe current to catalogue. respond public to LawWatch health your legal crisis, will research thebe published library enquiries is closed weekly and to document-deliveryas visitors. usual. The library requests. team is working from home. 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SERVICESDuringvia the onlinethe current catalogue. public – LawWatch healthWE crisis, DELIVER! will thebe published library is closed weekly to as visitors. usual. The library team is working from home. We continue to respond to your legal research enquiries and document-delivery requests. During the current public health crisis, the library is closed to visitors. The library team is working from home. During the current public health crisis, the library is closed to visitors. The library team is working from home. Unfortunately,We continue to it respond is not possible to your legalto lend research books duringenquiries this and period. document-delivery We have access requests. to a large range of We continue to respond to your legal research enquiries and document-delivery requests. databases to answer your enquiries. Self-service access to the entire Irish judgments’ collection is available viaUnfortunately, the online catalogue. it is not possible LawWatch to lend will booksbe published during thisweekly period. as usual. We have access to a large range of databasesUnfortunately, to answer it is not your possible enquiries. to lend Self-service books during access this to period. the entire We have Irish access judgments’ to a large collection range isof available viadatabases the online to answer catalogue. your LawWatch enquiries. will Self-service be published access weekly to the as entireusual. Irish judgments’ collection is available via the online catalogue. LawWatch will be published weekly as usual. gazette.ie Law Society Gazette April 2021 Practice notes BRIEFING 55
PRACTICE NOTES ARE INTENDED AS GUIDES ONLY AND ARE NOT A SUBSTITUTE FOR PROFESSIONAL ADVICE. NO RESPONSIBILITY IS ACCEPTED FOR ANY ERRORS OR OMISSIONS, HOWSOEVER ARISING
REGULATION OF PRACTICE COMMITTEE RETENTION OF PROFESSIONAL FEES EARNED FOR LONGER THAN PERIOD ALLOWABLE The Regulation of Practice Com- Regulation 7(1)(a)(iii) requires and in regulations 11, 12 and for longer than three months.” mittee, which monitors compli- that: “A solicitor may withdraw 23, ‘in a timely manner’ means Regulation 5(3) clarifies that ance with the Solicitors Accounts from a client account in the within a period not exceeding “money to which a solicitor is Regulations 2014 (SI 516 of case of clients moneys – moneys three months after the date on beneficially entitled” means: “(a) 2014), has encountered circum- properly available to be applied which the solicitor concerned Moneys held by the solicitor stances where professional fees by the solicitor in satisfaction (in has furnished to the client con- for professional fees in respect were retained in the client bank whole or in part) of professional cerned a bill of costs (or an of all or part of the amount of account by solicitors for a period fees payable by the client con- interim bill of costs, as the case which the solicitor is entitled, longer than allowed in the regu- cerned where it has been made may be) specifying the amount of as provided for in regulation lations. The committee wishes clear to such client that clients the professional fees payable by 7(1)(a)(iii), to transfer from cli- to emphasise to the profession moneys held by the solicitor for the client and in respect of which ent account to office account; or that any money held in the client the client are being or will be professional fees the solicitor outlays in respect of which the account that is properly available applied by the solicitor in satis- may properly apply clients mon- solicitor is entitled, as provided to be applied in satisfaction of faction (in whole or in part) of eys of the client concerned in for in regulation 7(1)(a)(ii), to professional fees due to the prac- such professional fees; provided satisfaction (in whole or in part) withdraw from client account; tice must be transferred within that such moneys shall be trans- thereof.” (b) moneys held by the solicitor three months. This is set out in ferred in a timely manner from Regulation 5(2) also sets out that: which, pursuant to regulation 12, regulation 7 and, more specifi- client account to office account.” “A solicitor shall not hold moneys should be the subject matter of a cally, regulation 7(1)(a)(iii) and Regulation 7(3) states: “In to which the solicitor is benefi- bill of costs furnished to the cli- regulation 7(3). clause (1)(a)(iii) of this regulation cially entitled in a client account ent concerned.”
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ALTERNATIVE DISPUTE RESOLUTION COMMITTEE TOP TIPS FOR REMOTE MEDIATIONS The President of the High Court the day. The nature of remote time, overall, you should try proper buy-in to the process has issued a clear direction that mediation leads to more to remain connected with, and from clients by preparing parties should engage in either downtime at your desk, where available to, your clients as the for it as thoroughly as you formal or informal alterna- other work can be completed. day progresses, in the same would for a physical media- tive dispute resolution (ADR) However, it is important to way as you would at a physical tion. Remember to explain to to attempt to resolve or narrow pace yourself and maintain mediation. If you continually clients, both in advance and disputes before coming before focus on the issues at hand. log off when the mediator is especially on the day, what the courts during the pandemic. 5) Staggered start times can be out of the room, valuable time follows in risk terms if no deal Remote mediation can provide a helpful, limiting ‘hanging that can be spent exploring the is reached, just as you would cost-effective and flexible mecha- around’ time at the outset. case with the client will be lost. at a physical mediation. nism by which parties can reach a 6) Technology allows for the 11) Reviewing documents elec- 14) The sometimes ‘stop-start’ mutually acceptable agreement to mediation to take place in tronically can be intense and nature of a remote mediation a dispute. ‘instalments’ over a number tiring. Giving parties a break can make the process more Solicitors and their clients have of days, if suitable. This can from their screens is crucial to drawn out, and distractions adapted well to remote mediation, work very well with clients maintaining momentum, and or technology interferences which still offers the advantages who might not have had quick updates can be given by can hamper progress. Try to of traditional mediation, such as the energy for a long day of phone or email. reduce such distractions in confidentiality, savings on costs, mediation, such as elderly or 12) Joint meetings can take place advance, where possible. and control over the outcome. ill clients. in a separate joint room. The 15) ‘Hallway conversations’ can The Alternative Dispute Reso- 7) It is important to clarify in common courtesy of taking still take place, but are less lution Committee of the Law advance what technology is turns to speak and not cutting organic. Picking up the phone Society has prepared some top to be used by the mediator, across other parties when they to the mediator, a client or tips for getting the most from and to ensure all can access are speaking is heightened in colleague to have a side con- your remote mediation: it. Parties may prefer to invite online meetings, as there can versation can be harder than 1) Remember, remote media- the mediator to their own be a delay on the line – and ‘bumping into them’, but is tions can be arranged at short secure virtual room, rather this is worth emphasising to often worthwhile. notice, particularly at present, than use the mediator’s tech- clients. This often ensures a 16) Ensure that parties have the where practitioners gener- nology. Practice the technol- more considerate conversa- technology to sign up to set- ally have fewer court com- ogy – sharing screens, etc – tion than in-person meetings, tlement agreements, where mitments due to the current but remember to close down particularly if emotions are required. restrictions. From a client your other applications, par- running high. 17) Remember, even where full perspective, it is certainly eas- ticularly email notifications 13) While remote mediations can agreement is not reached in ier to get key decision-makers before doing so. be easier to convene, they can one day, points of difference into a virtual room than into 8) Setting up a ‘back channel’ also appear easier to collapse can be narrowed and solutions a traditional in-person media- between advisors and their cli- if parties feel less commit- become clearer in the subse- tion. ents is essential if they are not ted as they haven’t invested quent days, often leading to 2) Because of the speed at which in the same room. It can be in physical presence. So it a complete resolution shortly mediations can be convened, helpful to use, for example, a is very important to secure after a mediation. there are obvious legal cost WhatsApp group rather than savings and savings on outlay. technology reliant on Wi-Fi 3) Remote mediations can work in case of connection issues. A particularly well when there is WhatsApp group can also be a a lot of rancour in the dispute useful tool to convene a meet- – for example, in family share- ing at short notice. holder disputes, physical dis- 9) Encourage participants to tance may be helpful. Parties turn on their cameras to may also be more relaxed in ensure full engagement and their home environment. build trust and rapport. 4) The structure of the media- 10) Parties can stay in the room Law Society Library and information ServiceS – we deLiver! tion will depend on the medi- in the absence of the media- ator and the parties involved. tor, or can log in and out, as LawWatch – we deliver a free, weekly, emailed newsletter You should explain to your with updates on judgments, legislation and journal articles. required. While a balance To subscribe, contact: [email protected]. client how the process will is required, and breaks are Contact the library: tel: 01 672 4843/4; email: [email protected] run and what to expect on recommended from screen
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GUIDANCE AND ETHICS COMMITTEE TEN STEPS TO ETHICAL DECISIONS AS A SOLICITOR 1) Honesty and probity. Not- files) for the collection, storage, sufficient information about rate and vouched record of all withstanding all and any pres- accessing and updating of appro- the nature and extent of your aspects of your instructions and sures that might face practitio- priate client data (subject at all instructions to allow you form an your actions and engagements, ners in their professional and times to GDPR obligations). informed view about your ability and those records are easily private lives, it is an absolute and 3) Capacity/conflicts of inter- to carry out your instructions? accessible and corroborated? fundamental condition of a solic- est. Make sure you have clear 6) Help! Based on your assess- 9) Dealings with third parties. itor holding a practising certifi- instructions as to who your cli- ment of the instructions received, Have all your professional ob- cate that they behave at all times ent is and how they are in a posi- will it be necessary to engage ligations and undertakings to and conduct each and every tion to instruct you. Address and counsel, other professionals, all parties and third parties (Rev- professional engagement as an satisfy yourself at the outset that or service providers? Have you enue, local authorities, banks, officer of the courts. Practising the instructing party has capac- advised your client, and have you mortgage holders, Department solicitors must be cognisant at all ity. Are there any circumstances received instructions in writing of Social Protection and so on) times of the position of trust they that would prevent you from tak- that the client wishes to engage been discharged fully, and a hold towards their clients and ing instructions? Is there a con- external advisors and that they written receipt in respect of same their obligation to behave at all flict of interest or the appearance will be responsible for the dis- received and recorded on your times with honesty, probity, and of one? Take advantage of the charge of their fees? file? integrity in all their dealings with ‘cooling-off’ period in your sec- 7) Time. Is time of the essence, 10) Communications with cli- colleagues. tion 150 notice to ensure you are and can you realistically meet ents/Law Society/LSRA and post- 2) Know your client/AML/source satisfied that you have enough the client’s expectations/contract completion matters. At all times, of funds. This area of practice is information to be able to per- obligations in the time avail- a solicitor must keep their client under constant review and devel- form your professional duties. able? Is there any possible statute and their colleague(s) reason- opment and is subject to national 4) Terms of engagement/account- issue? Do you have enough infor- ably informed on a timely basis and European regulations and ability. Are the terms upon which mation to comfortably identify with relevant and appropriate oversight by the Law Society of you/your firm will perform and all statute issues that might arise? information pertaining to the Ireland and the Legal Services deliver the legal services to your Do you have a policy of refusing legal matter/file. Similarly, it is Regulatory Authority (LSRA). client agreed and evidenced in instructions where the matter is an obligation that the solicitor To ensure compliance with your writing? This should include any within a fixed period of expiry of comply fully in a timely manner statutory obligations regarding engagements of third parties and a limitation period? with any statutory requirements anti-money-laundering, invest the amount/manner and timing 8) Evidenced in writing/records/ made of it by the Law Society of in implementing and instruct- of the discharge of their and your review. Have you ensured Ireland/LSRA. Solicitors must ing all staff in the operation and professional fees. throughout the process, from ensure that post-completion management of a comprehensive 5) What are your instructions? receiving initial queries/instruc- matters for a client are com- centralised system (instead of Having regard to the steps out- tions through to completion of pleted as soon as can reasonably notation on/regarding individual lined above, do you now have the matter, that there is an accu- be achieved.
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Make sure you keep up to date: subscribe on www.lawsociety.ie/enewsletters or email [email protected]. 58 BRIEFING Regulation April 2021 Law Society Gazette gazette.ie 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 Kathleen in relation to the C estate 10) Transferred €24,850 from the client account was deb- Doocey, a solicitor practising matter, leaving a shortfall of the DC client ledger account ited to the Suspense SUS17 as KM Doocey Solicitors at €42,658.50 on the JD client to the Suspense SUS17 cli- client ledger account and American Street, Belmullet, ledger account, ent account with a date of caused a debit balance on the Co Mayo, and in the matter of 5) Used €42,195.57 from the 13 December 2017, which SUS17 client ledger account the Solicitors Acts 1954-2015 OD estate to help clear the contributed to a shortfall of to increase from €4,251.24 to [2018/DT83 and High Court deficit on the JD ledger €25,000 on the DC client €12,835.65, 2020 no 40 SA] account and thereby caused ledger account, 15) Misdescribed the sum of Law Society of Ireland a shortfall on the OD estate 11) Paid €25,000 from the cli- €34,772.30 in the client (applicant) ledger account, ent account on 21 December account books, which helped Kathleen Doocey (respondent 6) Took €37,831.78 from the 2017 to the Legal Aid Board conceal the fact that it was solicitor) estate of S (deceased) and on DC’s behalf, but failed mainly composed of clients’ On 23 July 2019, the Solicitors credited that sum to the OD to enter this payment in the money used to clear debit Disciplinary Tribunal found the estate ledger account, which books of account, balances and deficits on other respondent solicitor guilty of helped conceal the shortfall 12) Took €24,000 out of a sum clients’ ledger accounts, misconduct in her practice as a on that ledger account, of €64,659.06 received into 16) Caused a debit balance of solicitor in that she: 7) Cleared the debit balance the client account from MD, €18,225 to occur on the 1) Allowed a deficit of €169,152 of €33,177 on the S estate a client, on 11 July 2017 and MD client ledger account in to arise and be on her client ledger account with a trans- lodged the amount to the August 2017, mainly because account as of 31 December fer of that amount dated 30 office bank account on 12 of the misapplication of 2017, June 2017 from the Suspense July 2017 and failed to record €24,000, and subsequently 2) Concealed a deficit of SUS16 client ledger account, the receipt and payment of cleared this debit balance €50,000 in relation to the which concealed the shortfall this sum in the client books with a transfer dated 28 C estate by using other cli- on the S estate ledger account of account, thereby conceal- December 2017 of €18,225 ents’ money credited to their and left a shortfall on the ing the misappropriation, from the Suspense SUS17 ledger account, thereby con- SUS16 client ledger account, 13) Wrongfully credited the client ledger account, cealing that deficit, 8) Cleared the shortfall on €24,000 taken from MD’s 17) Lodged a total of €26,000 3) Put a statement of account the Suspense SUS16 client money in the account to the to the client account on 23 dated 1 September 2015 on ledger account by the trans- office ledger account of the November 2017, composed the client’s file that showed fer of €35,900 dated 30 June Suspense SUS17 account, of €13,500 belonging to BN an incorrect sale price of 2017 from the client account describing it as “rectification” clients and €12,500 belong- €255,000, instead of the of JG, which left a shortfall and wrongfully described the ing to BC client, which was actual sale price of €205,000, on his client ledger account, lodgment of €24,000 as “loan incorrectly credited to the and also showed a total of 9) Cleared the shortfall on the funds” in the office bank Suspense SUS17 client leger €100,000 paid to clients, JG client ledger account by account, account, where it cleared a which had the effect of con- a transfer of €35,900 from 14) Wrongfully paid the sum of debit balance and was used cealing the irregularities in another client ledger, Sus- €8,581.41 from the client with other clients’ moneys relation to this matter, pense account SUS17, which account to the office account to cover various deficits on 4) Used €42,720 received from left a debit balance on that and described it as “recti- various client leger accounts, a client (JD) in respectU ofUr ag regneledgertn Ct C aaccount,lal lflo ftherebyro Lr aL conwa-wyeyresfication”r sto t oV in Vo thelou lofficenutne tbankeere or notherebyn concealing the short- purchase, which helped conF- LFALAcealingCC's' stheT e Tshortfallleelpeh ponoh thenoe n eIn Iaccount;fnofromr mona ttheaiot isameno nL date,iLnie ne fall and deficits on the client ceal the deficit that had arisen JG client ledger account, the €8,581.41 payment from account, Urgent Call for Lawyers to Volunteer on DurDinugri nCgo vCido-v1id9- 1F9LU AFUCLrUA rigsCUg re eigesxr peFngnexrpenLitee nnAtrCCic eitCnCa gcaCi al'nasllg aldl fla e Tol mfldo reaf mnorlrLdea rLnafLop drLaw hfaooawuroy wrow esynueryee rsvseir cr sIevrtnrsi cso stewf o sh tV iwo trcVhomo icwVol haeuV ol wjtunueilsoo untju eclntsauet ntcLneraon ietrton m eoroente meonte wnre itt howUoiUtunhUrto gryUurogteg uyrerong eaunstern staiCnts s tCsatCiasn atcCalaelnl lacf leo flfolr of roLr LraL awLawawyyweyereysrers str o tsto oVt o VVo oVlouluolnunltunetnteeetere reor orno nonn FFLFLFALALACAC''sCs' s T' sTTe eTeleeleplephpphohhonoonenne Ie nI nfIoInfnorfmforomramratmiaotiotnaion tLin oLi nLninei neLeine FFLFLFALALACCAC's'Cs' sT ' TseT eTleelelpeplhephophonhoneone neI ne IInf noIfnforofmrormmramataitoatioinotni onL n LiLn inLieneinee We W aere a ares kainsgki nqgu aqluifiaeldifi esdo liscoitloicristo arsn da nbda rbriasrterisrste tros vto luvonltuenetre oenr oan r eag ruelgaur lbaar sbisa sreism reomteolyt efolyr fao rd a yd aoyr or During Cohvaidlhf--1ad9laf F-ydL aoAynC oFisnL e AFxpCLeA’rsiCe tne’scli entepg lhaeo pdnheemo niannefd oi nrfomfro aormtuiro asntei orlivnice eli snp erwo hpvicridoh ivnwidge ijnbugast s bcica nslneicog tla emlg einaeflt owinrimtfhoaorumtito aynoti.uorn a.ssistance DuDriunDrginu Cgrio nCvgio dCv-i1od9v-1i dF9-L 1FA9LC FA LiCsA eiCsx peisex preiexrpniecinrniceginn acg i ndage d mae amdneadmn fdao nrf odr uf or rus roe ursveri crsve iscr v ewisch ewisch hwi cwhhie cw hjue ws jtue cs jatu ncsant nocnat onmtnD emoueDter tDum ienwurtigeDirn tiw ehungCtoirg toCiwhun vCotigit douvhy Ci-ovtd 1iouyd-9o1vrt- i1u9Fyad9r osL-F 1 usaAFL9irssCLA satFA aCisiLsnCs t Aiacise sienC sxteca p exienespxc rpeieeerxinpreiceninrciigecni nngacg aidn a egd m deaema dmnaedanm ndfoad frn o fodor u rof rou srur eors ruesvreic vrseivcesiecr veswi schw eiwhcshi cw ihcwhh ewi c wejhue jswu tjus ects ajtcu nacsnant onctano mnot ntme omeett e mwet ietwt hewitothi tuwhotoui tyhut ooty uouyrout aury sora suasisr tisasaistsnastcaniesncteacence During Covid-19 FLAC is experiencing a demand for our services which we just cannot meet without your assistance We ar eP ales Pkailsnegea qsuea nlsidfeie nyddo s uoyrloi ceuitxor presr xeapsnrdse ibosansri roisnft e i onrsft 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W eW a eWr eae ra eas rkaeisn kagisn qkgui nqaguli faqieluidfaie lsidfoi elsidco ilstiocoriltsioc raitson ardsn bdaa nbrdrai srbtraeisrtrsei srttose trvoso lvtuoon lvut eoneltuern eotren eo arn oraen gr aeu glrauerlg abura labsrias sb riases mrieso mrteomlyte o flWoyte rWfe l oyaW re a f d e oarWae r ard year a oe saydr kr as oienksyr igk anoi sngqrk g uqin aqugluaif iqaleifulidiefai edslid ofsie loiscdoli tclsoiicotroisltior csarit snoa drans ndb ad bn rbardiars rbrtirseaitsrrestrer istrot set ovrto sv loutvoolnu ltvuneonteelutre noert nero eonarn aro ea nrg e ruaegl guareulra glbaru arbl sabirsa ibssriea srms erisemo mtroeeotlmeyt elyfool ytfre o flaory radf oa dr y daa ayo dyro aory r or We are askihnaghlf -aqdlhufa-aadylf al-oiydfni aeo FyCdn L oaFsAnCLnoC FA la’iysLCcn oAit’tes Cuoy let r’oesvspl oue htae polvlunhenondopelnht uibenonaf neoitnerrerf m oiwesnraftmroiet tiroawrhmsnti io autltinthosni o e ltivnun op oselr i l nomtupeovrna io dptmvekirniodeagvir n ik abdgoeai nnbds ga ici asfb fldiaecreesg ilrfiegacefgl eu lniaenlraclgef oiaren rlfb? mcoinareafmsot?iiroasmnt ior.aentim.ono. tely hfaohlrhaf- aldaf-hlaf d-adydal afayo-y dno a onFyn Lr F oAFLnCLA FA’CsLC ’stAe’ sCtl et’elpse lhepteophlnehoepon hneinoe ifn oinferomf orinmarfmtoaioratminoti onalin tliieo nli nnep e rlpion prveori dovpivdnriodignvi ngbidg abin sbagicas ibscleia clgse laiegclga ilneal ifgln oianfrolmf orinmarfmtoaioratminoti.onan.tio. n. half-day o nP lFeaLsAeC s’esn dte yleouprh eoxnpere sinsfionr mo fa i ntitoe nre slitn aen dp rao svhidorint Cg Vb taos iincf ol@egflaalc .iineformation. Pl ePal esPeal seseae snseed n sydeo nuydor uyerox uperx epesrxsepisorseniso osnfi ooinft eionrft eeinsrtee asrtne adsnt ada nsahd os ahr tos CrhtVo Cr tV oC tiVnof oitno@f oinf@[email protected] P lPe Plaels eaPeas lese as nseseden ndsyed oyn uoydrou eury xore puexrrpxe preserxsespiosrinseoi sonsn foi o iofnn fitn eointrefet erisnerttes eatsr ntae dans tnda ad asn a hds oh sarhot orsCthr VtCo C VrttoV Ct oitnVo ifn otinfo@of o@infl@[email protected] Can you volunteer with u s to make a difference?
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18) Between January and Decem- of accounts and, instead, the in the period 2015 to 2017, exceeding the amount of ber 2017, drew various same amount was dated 1 which were debited to the costs agreed with the client amounts totalling €20,090 November and was debited to client ledger account of the by about €20,000. from the client account to the estate client ledger account C estate, leaving a shortfall the office account and paid a and credited to the Suspense of €6,177 as of 31 December The Solicitors Disciplinary Tri- probate fee of €319 out of the SUS17 client ledger account, 2017 in the C estate, bunal ordered that the Law Soci- client account, resulting in a with the effect of reducing the 23) Having received €5,000 into ety bring its findings and report debit balance of €18,459 on debit balance on that ledger the client account of PR cli- before the High Court. the client ledger account of account and increasing the ent in December 2017 for On 16 November 2020, the the TS estate, debit balance on the C estate the purposes of discharging High Court ordered that: 19) In January 2018, after clear- ledger account, a liability in that amount in 1) The respondent solicitor’s ance of the debit balance 21) Failed to show a receipt of a family law matter, failed to name be struck off the Roll of of €18,459, paid a further €5,750 in the client ledger pay that money until 2018, Solicitors, €6,150 and €4,920 from account of LOC client, not- and instead moved the €5,000 2) The respondent solicitor pay the TS estate to the office withstanding the payment of to the credit of the Suspense a fine of €2,000 to the com- account, leaving a sum of same in September 2017, and SUS17 client ledger account pensation fund, €11,070 remaining to be credited this sum of €5,750 with a date of 31 December 3) The respondent solicitor pay refunded to the client account in the books of account to 2017, thereby concealing a costs of €1,500 for the pro- in relation to that estate as of a number of clients’ ledger shortfall on that account, ceedings before the discipli- January 2018, accounts in various amounts, 24) Drew amounts from the cli- nary tribunal, 20) In the C estate, failed to thereby reducing the debit ent account to the office 4) The respondent pay agreed enter a client account cheque balances on those accounts, account in the period Feb- costs of €11,527 for the pro- for €4,322 written on 24 22) Drew amounts totalling ruary 2016 to December ceedings before the High November 2017 in the books €10,698 to the office account 2017 in the estate of JOD, Court.
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*Applicable to Law Society Finuas Skillnet members ** Open Skills Training Programme open to all staff working in the legal sector *** Open Skills Managers Training Programme open to all managers working in the legal sector. 04_21 gazette.ie Law Society Gazette April 2021 61 PROFESSIONAL NOTICESNOTICES
WILLS Coney Jenkinson (née Ellis), RATES Adrienne (deceased), late of 5 Ballyfermot Crescent, Ballyfer- mot, Dublin 10, and formerly of PROFESSIONAL NOTICE RATES 1A Belmont Park, Raheny, Dub- RATES IN THE PROFESSIONAL NOTICES SECTION ARE AS FOLLOWS: lin 5, who died on 8 November Wills – 155 (incl VAT at 23%) 2020. Would any person having • € knowledge of the whereabouts • Title deeds – €310 per deed (incl VAT at 23%) of any will made by the above- • Employment/miscellaneous – €155 (incl VAT at 23%) named deceased please contact Sarah Flynn, Corrigan & Corri- HIGHLIGHT YOUR NOTICE BY PUTTING A BOX AROUND IT – €30 EXTRA gan, 3 St Andrew’s Street, Dub- lin 2; tel: 01 677 6108, fax: 01 ALL NOTICES MUST BE PAID FOR PRIOR TO PUBLICATION. ALL NOTICES MUST BE 679 4392, email: sarah.flynn@ EMAILED TO [email protected] and PAYMENT MADE BY ELECTRONIC FUNDS corrigan.ie TRANSFER (EFT). The Law Society’s EFT details will be supplied following receipt of your email. Deadline for May 2021 Gazette: 21 April 2021. Dunleavy, Patrick (deceased), No recruitment advertisements will be published that include references to ranges of post-qualification late of 8 Eglinton Terrace, Dun- experience (PQE). The Gazette Editorial Board has taken this decision based on legal advice that indicates drum, Dublin 14, who died on 2 that such references may be in breach of the Employment Equality Acts 1998 and 2004. February 2006. Would any per- son having any knowledge of the whereabouts of any will made or purported to have been made by Row, Phibsboro, Dublin 7, and Hiney, Owen (deceased), late Co Wexford; tel 053 910 0034, the above-named deceased, of if formerly of 1A Synnott (Sin- of 27 Churchfield Heights, Cas- email: [email protected] any firm is holding same, please nott) Row, Phibsboro, Dublin tletown, Co Laois, and Killaney, contact O’Brien Murray Solici- 7, who died on 21 November Mountrath, Co Laois. Would any Kavanagh, Margaret (de- tors, 95 Main Street, Bray, Co 2020. Would any person hav- person having knowledge of the ceased), late of Shanahona, Bal- Wicklow; tel: 01 286 8211, email: ing knowledge of any will made whereabouts of any will made by lyhogue, Enniscorthy, Co Wex- [email protected] by the above-named deceased the above-named deceased, who ford, who died on 13 April 1998. please contact Johnston Solici- died on 16 February 2020, please Would any person having knowl- Farrell, John Andrew (de- tors, 179 Crumlin Road, Crum- contact Clarke Jeffers Solicitors edge of the whereabouts of any ceased), late of 78 Aungier lin, Dublin 12; email: info@ LLP, 30 Dublin Street, Carlow; will made by the above-named Street, Dublin 2, formerly of johnstonsolicitors.ie DX 18006 Carlow; tel: 059 913 deceased please contact Miriam 343 Harold’s Cross Road, Teren- 1656, email: [email protected] Wilson of MT Wilson Solicitors, ure, Dublin 6W, who died on Gaynor, Sheilagh (otherwise 49 North Main Street, Wexford, 19 September 2020. Would any Julia Gaynor) (deceased), late Kavanagh, Bernard (deceased), Co Wexford; tel 053 910 0034, person having knowledge of the of 3 Aberdeen Street, off Infir- late of Shanahona, Ballyhogue, email: [email protected] whereabouts of any will made by mary Road, Dublin 7, in the city Enniscorthy, Co Wexford, who the above-named deceased, or if of Dublin. Would any person died on 15 September 1980. Kavanagh, Michael (deceased), any firm is holding same, please having knowledge of the where- Would any person having knowl- late of Shanahona, Ballyhogue, contact O’Connor & Bergin, abouts of a will executed by the edge of the whereabouts of any Enniscorthy, Co Wexford, who Solicitors, Suites 234-235, The above-named deceased, who died will made by the above-named died on 9 June 2018. Would any Capel Building, Dublin 7; DX on or about the 21 November deceased please contact Miriam person having knowledge of the 200234, The Capel Building; 2020, please contact Doyle & Wilson of MT Wilson Solicitors, whereabouts of any will made tel: 01 873 2411, email: info@ Company Solicitors, 123 Cabra 49 North Main Street, Wexford, by the above-named deceased oconnorbergin.ie Road, Dublin 7; tel: 01 838 3388, fax: 01 838 2028, email: mail@ Farrington, Ann (Anna) (de- doyleandcompany.ie ceased), late of Bishop Street, Dublin 8, who died on 6 October Groome, Henry (deceased), 2020. Would any person having late of Boyne Hill, Kinafad, Co knowledge of the whereabouts Offaly, who died on 24 January of any will made by the above- 2021. Would any person hav- named deceased, or if any firm ing knowledge of the where- is holding same, please contact abouts of any will executed by EC Gearty & Co, Solicitors, 4/5 the said deceased please contact Church Street, Longford; DX Hamilton Sheahan and Com- 29015; tel: 043 334 6312, email: pany, Solicitors, Main Street, [email protected] Kinnegad, Co Westmeath; DX 235001 Kinnegad; tel: 044 93 Fortune, Ann(e) (deceased), 75040, email: roisin@hamilton late of 9 Synnott (Sinnott) sheahan.ie 62 PROFESSIONAL NOTICES April 2021 Law Society Gazette gazette.ie
please contact Miriam Wilson of Smith/Smyth, Desmond (oth- of the other part for a term of In the matter of the Landlord MT Wilson Solicitors, 49 North erwise Bernard Desmond) 144 years from 25 March 1954, and Tenant Acts 1967-2019 and Main Street, Wexford, Co Wex- (deceased), late of Millhouse, subject to the yearly rent of £12 in the matter of the Landlord ford; tel 053 910 0034, email: Bunclody, Co Wexford, and and the covenants and conditions and Tenant (Ground Rents) (No [email protected] Foxfield Lodge, Ballymacahara, therein contained. 2) Act 1978 and in the matter of Ashford, Co Wicklow, who died Take notice that Helene Duig- an application by Kieran Mur- McDonnell, Charles (deceas- on 21 February 2020. Would nan, applicant, intends to submit phy, Mary Treacy and Kieran ed), late of 54 Georgian Hamlet, any person having knowledge of an application to the county reg- Murphy in respect of premises Baldoyle, Co Dublin, who died the whereabouts of a will made istrar for the county and city of at 9 The Crescent and Palmyra in or about 23 November 2019. by the above-named deceased Dublin for acquisition of the free- Avenue, Galway Would any person having knowl- please contact Mary Brady, hold interest and all intermediate Any person having an interest in edge of the whereabouts of any Wright Solicitors, Mill Street, interest in the aforesaid property, the freehold estate or any superior will made by the above-named Monaghan, Co Monaghan (ref: and that any party asserting that or intermediate interest in the deceased please contact Keith MB/CM/S304); tel: 047 82132, they hold a superior interest in property known as all that part Walsh Solicitors, 8 St Agnes fax: 047 84338, email: mary@ the aforesaid premises (or any of of the lands of Sherwoods Fields, Road, Crumlin, Dublin 12; tel: wrightsolicitors.ie them) are called upon to furnish comprising the hereditaments and 01 455 4723, email: moira@ evidence of the title to the afore- premises known as 9 The Cres- kwsols.ie Thursby, Anthony (Tony) mentioned premises to the below cent (formerly 4 Palmyra Cres- (deceased), late of 29 Arnott named within 21 days from the cent) and the lands at the front McGrath, John Gerard (oth- Street, Portobello, Dublin 8, date of this notice. and rear (with the store thereon erwise Gerard) (deceased), late who died on 29 September 2020. In default of any such notice fronting Palmyra Avenue) held of Apartment 12, Caragh, Bride- Would any person having knowl- being received, the applicant (inter alia) under a lease dated holm, Commons Road, Cork, edge of the whereabouts of any intends to proceed with the 20 May 1853 and made between and Knockanevin, Borrisoleigh, will made by the above-named application before the county John Richard William Whaley of Thurles, Co Tipperary. Would deceased, or if any firm is hold- registrar at the end of 21 days the one part and Michael Dooley any person having knowledge of ing same, please contact Clear from the date of this notice and of the other part for a term of the whereabouts of any will made Solicitors, 42 St Stephen’s Green, will apply to the county registrar 999 years from 29 September by the above-named deceased, Dublin 2; tel: 01 644 5777, email: for the county/city of Dublin for 1852, subject to the annual rent of who died on 20 January 2021, [email protected] directions as may be appropri- £22 sterling (but indemnified in please contact Butler Cun- ate on the basis that the persons respect of the entire of said rent ningham & Molony Solicitors, Weyman, Anthony (Tony) beneficially entitled to the supe- by other property demised by the Slievenamon Road, Thurles, Co (deceased), late of Shass, rior interest including the free- said lease) and to the covenants Tipperary; DX 40006 Thurles; Dowra, Co Leitrim, and for- hold reversion in the aforesaid and conditions therein contained. tel: 0504 21857, 22315, email: merly of 49 Upper Cheltenham premises are unknown or unas- Take notice that the applicants, [email protected] Place, Bristol, England. Would certained. Kieran Murphy, Mary Treacy and any person having knowledge Date: 1 April 2021 Kieran Murphy, intend to submit Morris, Elizabeth (Lily) of a will executed by the above- Signed: Michael Sheil & Partners an application to the county reg- (deceased), late of 15 Knock- named deceased, who died on 20 (solicitors for the applicant), Temple istrar for the county and city of lyon Park, Templeogue, Dublin December 2020, please contact Court, Temple Road, Blackrock, Co Galway for the acquisition of the 16. Would any person with any Kelly & Ryan LLP, Solicitors, Dublin freehold interest and any inter- knowledge of a will executed Manorhamilton, Co Leitrim; tel: by the above-named deceased, 071 985 5034, email: reception@ who died on 18 November kellyryanmanor.com 2020, please contact Mairead ONLINE DRUG & Leyne, solicitor, 3 Park House, TITLE DEEDS ALCOHOL AWARENESS Greystones, Co Wicklow; DX In the matter of the Landlord COURSE 205003 Greystones; tel: 01 and Tenant Acts 1967-2019 and 287 3483, email: maireadleyne in the matter of the Landlord NEWLY CREATED ONLINE COURSE BY IRISH TRAINING SPECIALISTS [email protected] and Tenant (Ground Rents) (No 2) Act 1978 and in the matter Murphy, Brian (deceased), of an application by Helene The Learning Curve Institute late of 14 Church Square, off Duignan May be helpful to those facing a drug or alcohol related Church Road, East Wall, Dub- Take notice that any person hav- conviction. It will provide participants with a good basic lin 3, who died on 20 February ing any interest in the freehold knowledge of drugs, alcohol, their effects and associated 2021. Would any solicitor or estate or any intermediate inter- issues. The overall aim is to educate and increase person having knowledge of the ests of the following property: whereabouts of any will made 22 Lower Kilmacud Road, Stil- understanding of the consequences of substance misuse by the above-named deceased lorgan, Co Dublin, held by the and the treatment options available. please contact Lawlor O’Reilly applicant under indenture of & Co, Solicitors, 43 Upper Gar- lease dated 16 December 1958 w: www.thelearningcurve.ie diner Street, Dublin 1 (ref: JD/ and made between Michael Mur- t: 098 25530 M010006); tel: 01 878 7255, ray & Company Limited of the e: [email protected] email: [email protected] one part and Patrick J Murray gazette.ie Law Society Gazette April 2021 63 PROFESSIONAL NOTICESNOTICES mediate interest in the aforesaid est in the following property: property, and any party or parties the dwellinghouse and premises IS YOUR CLIENT INTERESTED asserting that they hold a superior known as ‘Maigh Dara’, Lov- IN SELLING OR BUYING interest in the aforesaid prop- ers Lane, Castlecomer Road, erty are called upon to furnish Kilkenny, which was demised A 7-DAY LIQUOR LICENCE? evidence of title to the aforesaid by indenture of lease dated property to the below-named 23 December 1924 and made email: [email protected] solicitors within 21 days from the between the Right Reverend web: www.liquorlicencetransfers.ie date of this notice. John Godfrey, and Very Rever- In default of any such notice end Percy Phair, and the Rever- Call: 01 2091935 being received, the applicants, end Andrew Albert Victor Hogg Kieran Murphy, Mary Treacy and of the first part, Arthur Geof- Kieran Murphy, intend to pro- frey Davis of the second part, ceed with the application before and Hanna Walsh of the third PROPERTY VALUATIONS the county registrar for the county part, for a term of 99 years from FOR ALL PURPOSES and city of Galway for directions 29 September 1924, subject to as may be appropriate on the basis the yearly rent of £4 and to the that the person or persons ben- covenants on the part of the said Contact our RICS Registered eficially entitled to the freehold, Hanna Walsh and the conditions Valuation Team including the superior interest(s) in the said lease contained. and intermediate interest(s), are Take notice that the applicants, T: 01 237 6442 unknown or unascertained. Gerard and Anne Walsh, intend E: [email protected] Date: 1 April 2021 to submit an application to the Signed: Kieran Murphy & county registrar for the city of Company LLP (solicitors for the Kilkenny for the acquisition of applicant), 9 The Crescent, Galway the freehold interest in the afore- said property, and any party ascer- In the matter of the Landlord taining that they hold a superior and Tenant Acts 1967-2005 and interest in the aforesaid premises in the matter of the Landlord (or any of them) are called upon and Tenant (Ground Rents) (No to furnish evidence of the title to 2) Act 1978 and in the matter of this aforementioned premises to PSRA No. 001628 the dwellinghouse and prem- the below named within 21 days ises known as ‘Maigh Dara’, from the date of this notice. Loverslane, Castlecomer Road, In default of any such notice to the county registrar for the in each of the aforesaid premises Kilkenny: an application by being received, said applicants city of Kilkenny for directions as are unknown or ascertained. Gerard Walsh and Anne Walsh intend to proceed with the appli- may be appropriate on the basis Date: 1 April 2021 Take notice that any person hav- cation before the county registrar that the person has been officially Signed: Smithwick Solicitors ing any interest in the freehold at the end of the 21 days from the entitled to the superior interest (solicitors for the applicant), estate or any intermediate inter- date of this notice and will apply including the freehold reversion 43 Parliament Street, Kilkenny
Stephenson Burns Solicitors’ 39th Seminar “MODERN FAMILIES – ITS COMPLICATED” Stephenson Burns Solicitors 9.15 – 5.15pm, Friday, 16th April 2021
This is an important date for all probate practitioners • CAT Thresholds : not as simple as A B or C who wish to keep abreast of the latest updates. • Trustees Indemnity Insurance • Are all children equal in the administration of the Anne Stephenson will, as always be hosting the event estate? and along with her fellow speakers will be discussing • When the Courts decide who is Family -DNA a variety of matters such as; Testing- Declaration of parentage • Revenue Updates:, Foster Care, S 84 exemption Stephenson Burns Solicitors 55 Carysfort Avenue, • Drafting of Wills in light of Modern Families And much more. Further details from Stephenson Blackrock, • SA2 Queries answered with handy precedent sheet Burns Website Co Dublin. • Second/Third Relationships-are you sure you are Phone: +353 1 2756759 family? Please note: This event is being streamed live and Fax: +353 1 2109845 www.stephensonburns.com • Extracting the Grant in Second/Third Relationships is available for viewing to registrants only. 64 FINAL VERDICT April 2021 Law Society Gazette gazette.ie
PRO BONOBO ‘A’ IS FOR ‘APPLE’, ‘I’ IS FOR ‘IDIOT’ Turns out that the pen is might- ier than the code: you can fool artificial-intelligence tools with words. Take the AI system called ‘Clip’. Show it a picture of an apple, and it will identify it as an apple. But show it the same pic- ture with the word ‘iPod’ pasted on it, and it will identify it as an Apple. In another classic case of mis- direction through the use of words, this has been dubbed by the company behind Clip as a ‘typographic attack’, The Guard- ian reports. Research company OpenAI argues that this appar- ent weakness is really a strength, providing a simple explanation Or, in other typographically images. Be that as it may, it’s proving that the AI is capable for both the model’s versatility represented linguistic symbols, worth bearing in mind during of “organising images as a loose and the representation’s com- it can ‘think’ about the world in your next AI-assisted discovery semantic collection of ideas, pactness”. terms of ideas, rather than just trawl. ‘PLAN TAIWAN SEEKS TO HALT SNP FROM CONFUSION Taiwanese officials issued a plea sushi meal along with five friends. Some of the newly registered ATLANTIS’ for people to stop changing their Around 150 people went to offi- names translate as ‘Explosive name to ‘salmon’, after dozens cially register a change in their Good-Looking Salmon’, ‘Salmon FOILED did so to take advantage of a res- name to take advantage of the deal. Prince’, and ‘Meteor Salmon Spanish police have seized a taurant promotion, RTÉ reports. Taiwan allows people to offi- King’. One person apparently homemade submarine capable of During a two-day promotion, cially change their name up to added 36 new characters to his carrying more than two tons of any customer whose ID card three times, but officials said: name, most of them seafood drugs, the BBC reports. Police contained ‘Gui Yu’ (the Chinese “This kind of name-change not themed – no doubt hoping to get found the craft during an inter- characters for salmon) would be only wastes time but causes unnec- ahead of the next restaurant pro- national operation while it was entitled to an all-you-can-eat essary paperwork.” motion. being built in the Costa del Sol. The 30x10-foot semi-submers- ible had never sailed, in what one BORNEAN BLACK-BROWED leading Irish media outlet dubbed ‘The Plan from Atlantis’. BABBLER BARBECUE BAN “We think it was going to In the 1840s, a mystery bird photographed a bird they didn’t go onto the high seas to meet was caught on an expedition recognise and informed bird- a mother ship to take on board to the East Indies. ‘The black- watching groups, The Guardian drugs,” police told reporters. browed babbler’ was never reports. “It’s like an iceberg. In practice, seen in the wild again, with a Experts have now confirmed nearly all of it goes under water stuffed specimen being the only that it is, indeed, the babbler – apart from the top, which is the proof of its allegedly tasty still going strong in the wild, only part that would be seen from existence. and particularly good with sweet another ship or a helicopter.” However, last year, two men chilli sauce. Er, allegedly. 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