THE BAR Volume 25 Number 6 REVIEWJournal of The Bar of Ireland December 2020 Costs and the “entirely successful” test CONTENTS The Bar Review 174 The Bar of Ireland Distillery Building 145-151 Church Street Dublin DO7 WDX8 Direct: +353 (0)1 817 5025 Fax: +353 (0)1 817 5150 Email: [email protected] Web: www.lawlibrary.ie EDITORIAL BOARD Editor Eilis Brennan SC Brian Kennedy SC Clíona Kimber SC Paul McGarry SC Sara Moorhead SC Sean O hUallacháin SC Peggy O’Rourke SC Susan Ahern BL Patricia Brazil BL Lydia Bunni BL Simon Donagh BL 170 167 Elizabeth Donovan BL Anita Finucane BL Tom Flynn BL Alison Walker BL 164 Ciara Murphy, CEO Vanessa Curley, Law Library Aedamair Gallagher, Senior Research and Policy Executive Tom Cullen, Publisher Paul O'Grady, Publisher Ann-Marie Hardiman, Think Media PUBLISHERS Published on behalf of The Bar of Ireland by Think Media Ltd Editorial: Ann-Marie Hardiman Paul O’Grady Colm Quinn Design: Tony Byrne Tom Cullen Niamh Short Advertising: Paul O’Grady Message from the Chair 154 Legal update xxxvii Commercial matters and news items relating to The Bar Review should be addressed to: Editor’s note 155 Paul O’Grady Law in practice 167 The Bar Review Think Media Ltd Costs and the “entirely successful” test: The Malthouse, News 155 Higgins v Irish Aviation Authority 167 537 NCR, Dublin DO1 R5X8 Tel: +353 (0)1 856 1166 PILA Pro Bono Pledge Ireland Clear contemplation 170 Fax: +353 (0)1 856 1169 Email: [email protected] Bar of Ireland Human Rights Award 2020 Opening the floodgates? 174 Web: www.thinkmedia.ie New to the Bar Interview 164 Closing argument 177 www.lawlibrary.ie Fighting the good fight Report on the Review of Administration of Civil Justice Views expressed by contributors or correspondents are not necessarily those of The Bar of Ireland or the publisher and neither The Bar of Ireland nor the publisher Papers, editorial items, and all queries regarding subscriptions should be addressed to: accept any responsibility for them. Aedamair Gallagher at: [email protected] THE BAR REVIEW : Volume 25; Number 6 – December 2020 153 MESSAGE FROM THE CHAIR Working within restrictions The work of The Bar of Ireland in supporting members during the Covid-19 pandemic continues. I noted for colleagues in my message published in the November edition of The and demonstrated that the sustainability of practice is now a major concern. It has Bar Review that I would, in my capacity as Chair, prioritise lobbying and been decided to undertake a further survey to get updated insights on how we representation of the interests of our profession throughout the course of my are coping. I urge all members to respond to the survey, which should take less term and keep members informed. These last few weeks have presented ample than three minutes to complete, the results of which will assist in our opportunities to fulfil this priority! representations and are used by the Council to feed into its decision making on a range of matters. Level 5 restrictions The unexpected (or expected depending on your perspective) catapulting of our Education and training country into a level 5 lockdown for a six-week period had a significant impact on Members will be aware that the Legal Services Regulatory Authority (LSRA) the courts. Members will be aware of my endeavours to raise their concerns published a further report in November 2020 regarding the provision of legal arising from the reduction in the number of civil cases requiring witness testimony education and training for the profession. The report can be accessed at being listed or heard in Dublin during the restrictions. The President of the High https://www.lsra.ie/wp-content/uploads/2020/11/Section-34-ET-Final-Report- Court has provided a detailed and robust response to those concerns, and that to-Minister.pdf. Part 4 of the report sets out the conclusions and has assisted in providing an explanation to members regarding the approach to recommendations that the Authority considers appropriate to make in relation to that decision making. While we may agree or disagree with the varying the arrangements that should be in place for the provision of legal education and perspectives expressed, not unusual in our Bar of some 2,200 members, what is training, and also outlines the legislative and administrative reforms that are clear is that it is everyone’s intention to work co-operatively with all stakeholders required to facilitate these arrangements. The Authority recommends the – the judiciary, the Courts Service, solicitors and litigants – in maximising the safe introduction of an independent Legal Practitioners Education and Training re-opening and continued sitting of our courts. We must be prepared for the Committee (the LPET Committee), which will be responsible for setting and possibility that our country could be faced with further periods of level 5 maintaining the standards in the provision of legal education and training across lockdowns. We each have a responsibility to find ways to work with our clients all providers. It further recommends that a detailed competency framework be and the courts system to progress and maintain access to justice, and this may, by developed against which the standards of education and training of legal necessity, include changes in how we approach our own case management. practitioners can be benchmarked. The Education & Training Committee, under the leadership of Denise Brett SC, is actively reviewing the role of The Bar of Government Restart Grant Plus Ireland in the provision of CPD for members to ensure that it can align with the Adding further to the pressures being faced by our profession due to the future approach of the LSRA. The provision of CPD events by The Bar of Ireland Covid-19 challenges was the recent decision by Dublin City Council (DCC) to and Specialist Bar Associations continues to go from strength to strength. A total reject claims made by up to 500 members for the Restart Grant Plus scheme. The of 24 events have taken place since the new legal year commenced. I would like Council was shocked and dismayed by this surprising and disappointing to take this opportunity to record my appreciation to all those who are involved in development, and we were particularly concerned for those colleagues affected, making these highly valued events happen, particularly where I am aware of the who are predominantly members of our Junior Bar and young bar. Faced with this extensive work behind the scenes that is required for each such event. I would additional financial challenge, having been advised that they had successfully also add that the pivot to online has been remarkable, and this success is entirely applied and been approved for the grant, and in many cases having received the due to the hard work and dedication of our staff, who funds, they were then told of a u-turn, and some faced with the invidious continue to go above and beyond the call of duty. In situation of a demand for repayment. The Council immediately responded to this addition, the willingness of our many experts at the Bar to issue. We were informed that DCC was considering our correspondence, which set offer their time and share their insights with all Law out reasons why we believed its decision was both wrong and unlawful, and that Library members is very much appreciated. DCC was consulting with its legal advisors and the Department of Enterprise, Trade and Employment. On December 9, DCC confirmed to the Council that “the Wishing you all a safe and peaceful Christmas break. appeals have been considered and the applications have been approved”. This was very positive news for all concerned. I wish to express my sincere appreciation to all members and staff who worked intensively to secure this results. Member survey Maura McNally SC Members will recall that the Council undertook a member survey in May 2020, Chair, which revealed the stark reality of how Covid-19 has impacted on our profession Council of The Bar of Ireland 154 THE BAR REVIEW : Volume 25; Number 6 – December 2020 EDITOR’S NOTE Optimism and clarity As an extraordinary year ends, we look at recent case law, and new recommendations on the administration of civil justice. With several vaccines in the pipeline, there is cautious cause for optimism The working group established to conduct a comprehensive review of the as we wave goodbye to a year that has thrown up hitherto unimagined administration of civil justice has now completed its final report. In our challenges. Dr Mike Ryan has been knee-deep in the thick of those closing argument, we analyse the recommendations in that report and challenges. In a personal interview, he reveals the daily reality of fronting consider the proposed measures that are most likely to enhance access health emergencies at the World Health Organisation during a to justice for all. once-in-a-century global pandemic. The recent case of UCC v ESB has provided the factual backdrop for a Best wishes for a safe and happy Christmas. re-calibration by the Supreme Court of the principles governing liability in negligence at common law. Our author analyses the ramifications of this judgment and the circumstances in which public and private entities may now be found to have a duty of care to provide their neighbour with a benefit, as opposed to merely refraining from causing them harm. Liability in tort may now arise where a party exercises a special level of control over an independently arising danger. The Court of Appeal has helpfully considered the impact of the Legal Services Regulation Act 2015 on costs awards and how a Calderbank letter can affect such an award.