ISSN 1393−6956 ga

11 MAGAZINE OF THE YEAR

9 771393 695029 can beafraughtarea how theyinteractwiththelaw Multi-unit developmentsand Muddling through PROTECTION LAW SOCIETY The dangers of inexpert The dangers ofinexpert WITNESS testimony a transferorsaleisrequired a privatecompanywhen How tovalueshares in To buyafathen ette €4.00 NOVEMBER2019 with workandpersonalstress or counsellorcanhelpyoudeal Speaking toapsychotherapist Mining themotherload gaLAW SOCIETY ette

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A CHANGE IN THE MOOD MUSIC

ou know something has changed will be available, and I hope that all partners in the mood music. Your calls and firms will avail of this significant advantage, aren’t returned instantly. There long fought for. We will continue to engage is someone parked in your space. with Government and the new authority to Ken Murphy gazes past you at ensure that this protection is extended to sole someone in the background. practitioners – there is not the slightest logical Gradually, it begins to dawn on you that your or legal reason why it should not be so. year as president is coming to a close. There was lots else – section 150 fees notices, YBy the time you read this, Michele O’Boyle complaints handling and, maybe of relevance from Sligo will be on the cusp of being appointed to some of our colleagues, the ability to apply as only the fourth female president of the Law for patents of precedence. Who will be the first Society. I say ‘only’, as it seems strange that – as solicitor senior counsel? we celebrate the centenary of women being entitled to practise law in this country – there Thriving profession should only have been four. However, that The results of the Council election for the will change rapidly, as the demographic of the two-year term commencing November 2019 profession changes rapidly – to the extent that I will be known by the time you read this. We was asked recently at a bar association meeting have a busy, engaged and active Council, as what steps the Society was taking to ensure that well as a large number of committees that more male trainees came into the system. continue to steer the profession successfully. I am very grateful for their hard work and Highlights support during the past year. My best wishes Some of the highlights of the year have included go to my successor Michele O’Boyle, and to the visits the director general and I made to incoming senior and junior-vice presidents, the bar associations around the country and, James Cahill and Maura Derivan, respectively. indeed, the various collegial events to which we Finally, thanks to everyone whom I have met were invited. In addition, we have fostered and continue to enjoy excellent relationships with our colleagues in Northern Ireland, Scotland, and England and Wales. We believe this to be ONE OF THE LARGEST NUMBERS of great and increasing importance as Brexit beckons. OF COLLEAGUES EVER CONTESTED One of the most memorable invitations I received was to the installation dinner for our THE COUNCIL ELECTION colleague John Finucane (son of our murdered colleague Pat Finucane) as Lord Mayor of Belfast, in Belfast City Hall. or engaged with over the year – you have been Big developments courteous and supportive. A special thanks The year has seen a number of big developments, to our director general Ken Murphy and of which the commencement of various parts of deputy director general Mary Keane, all of the the Legal Services Regulation Act is probably the fantastic staff of the Law Society, and everyone most significant in terms of day-to-day practice. at Ronan Daly Jermyn, for their professional Hopefully, as you read this, the forms and fees and personal support in what has been an PATRICK DORGAN, for registration as limited liability partnerships unexpectedly busy year. PRESIDENT 2 November 2019 CONTENTS Law Society Gazette | gazette.ie

gaLAW SOCIETY ette PIC: SHUTTERSTOCK

LAW SOCIETY GAZETTE • Vol 113 No 9 Muddling through To buy a fat hen Mining the motherload Volume 113, Multi-unit developments and How to value shares in Speaking to a psychotherapist how they interact with the law a private company when or counsellor can help you deal can be a fraught area a transfer or sale is required with work and personal stress number 9

gaLAW SOCIETY ette€4.00 NOVEMBER 2019 22 26 NOVEMBER 2019

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

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This publication supports the work of the Press Council of Ireland and the Office of the Press Ombudsman, and our staff operate within the Code of Practice. You can obtain a copy of the Code, or contact the Council, at www.presscouncil.ie, tel: 01 648 9130, lo-call 1890 208 40 080, or email: [email protected] Law Society Gazette | gazette.ie CONTENTS November 2019 3

48 44 56

FEATURES

34 False witness 48 Giving up the ghost Judicial decisions and LRC recommendations provide Reliance on family testimony – without independent strong indications that the ramifications of failing in the verification – to establish information about the devolution role of expert witness will become increasingly severe. of an estate is a path that can lead to errors and omissions. Paul Convery, Niamh McCabe and India Delaney prepare “Who you gonna call?” asks Danny Curran to cross-examine

52 Muddy waters 40 To market, to market... Apartments, owners’ management companies, and how There are many reasons for obtaining a valuation of the they interact with the law is an area that has been fraught shares in a private company. But how do you go about with difficulties. Patricia Murphy and David Rouse deliver valuing such shares when a share transfer or share sale is a timely review of the lay of the land required? Nicola Corrigan and Gavin Phelan go to market

56 Qu’est-ce que c’est? 44 Too many hats? Stressed out? Need help? There are many professions Should in-house solicitors take on the role of their that care for people’s mental health, including organisation’s data protection officer, given the potential psychiatry, psychology, psychotherapy, and counselling. for a conflict of interest between that role and their duties Anne Colgan has psychotherapy and counselling as in-house counsel? Tanya Moeller digs through the data on the couch

REGULARS

30 Human rights: Report from the Law Society’s Annual 4 The big picture Human Rights Conference Standout photo of the month 62 Briefing 6 People 62 Eurlegal: The CJEU’s ruling last year in the Bastei Lübbe case is significant 14 News 65 Council report: 13 September 2019 66 Practice notes 22 Social news 68 Regulation Profile: Charities Regulator Helen Martin 69 Professional notices 26 Analysis 26 News in depth: Managing PII risk 72 Final verdict 4 November 2019 ??????????IN FOCUS | ?????????? Law Society Gazette | gazette.ie

THE BIG PICTURE

SELFIE ASSURED Protesters take a selfie as they block the Dora highway in the north-east of Beirut, Lebanon, during a pro- test on 18 October 2019. An unex- pected Lebanese Government plan to impose a fee of 20 cents a day for messaging-app users led to wide- spread bonfire protests (which were fed by mounting levels of discarded rubbish). Protesters are demanding

PIC: EPA-EFE/WAEL HAMZEH proper public services, jobs, action against rising crime levels, the drop- ping of new austerity measures, and reform of the political elite. Tele- coms Minister Mohamed Choucair announced that plans for the new charge have been dropped due to the civil strife Law Society Gazette | gazette.ie ??????????IN FOCUS | ?????????? November 2019 5 6 November 2019 PEOPLE Law Society Gazette | gazette.ie

LAW SOCIETY GALA – A NIGHT TO REMEMBER PICS: DEIRDRE BRENNAN AND AILBHE O’DONNELL

At the Law Society Gala at the Shelbourne Hotel, Dublin, on 11 October were: Ken Murphy (directory general), Mary Keane (deputy director general), Oliver Callan (MC), Patrick Dorgan (Law Society president), Paul Wyse (Smith & Williamson, sponsors), Teri Kelly (director, representation and member services), and Marc Lowry (Smith & Williamson, sponsors)

IronLaw athletes presented the Solicitors Benevolent Association (SBA) with a cheque for €31,226 at the gala event: President Patrick Dorgan, Darren Toombs, Brian McMullin and Thomas Menton (chair, SBA)

Susan Deasy, Brian McGovern and Aoife Fitzpatrick David Smyth and Morette Kinsella Michele O’Boyle Law Society Gazette | gazette.ie PEOPLE November 2019 7

Patrick Dorgan, Minister Charlie Flanagan and Ken Murphy

Evin, Emma and Bryan Carthy Minister Josepha Madigan 8 November 2019 PEOPLE Law Society Gazette | gazette.ie

Elaine Morgan and Liam O’Neill

Oliver Callan

Teri Kelly

Kerry Lyons and Lindsey Murphy Darren and Virginia Toombs Ann McRann and Michelle Daly Charlotte Chestnutt and Sorcha Kinder Law Society Gazette | gazette.ie PEOPLE November 2019 9

Ken Murphy and Yvonne Chapman

Catherine Hayden and Anna Shaw The Dorgan family: David, Robert Coughlan, Jennifer, Patrick, Maria and Frank

Patrick Dorgan, Paul Wyse (Smith & Williamson) and Ken Murphy

Minister Josepha Madigan, Law Society President Patrick Dorgan, Minister Charlie Flanagan and director general Ken Murphy Oliver Callan and Mary Keane 10 November 2019 PEOPLE Law Society Gazette | gazette.ie

SOLICITORS GATHER IN MONAGHAN ALL PICS: GLENN MURPHY PHOTOGRAPHY, MONAGHAN

The main speakers and organisers of the North-East Cluster event, which was held in Monaghan on 11 October 2019, were (front, l to r): Attracta O’Regan (Law Society Finuas Skillnet), Mary McAveety (McAveety McKenna Solicitors, Cavan), Noel O’Gorman (Noel O’Gorman Solicitors, Cavan), Pierce O’Sullivan (Pierce O’Sullivan & Associates, Cavan), Conor MacGuill (event chairman, Conor MacGuill Solicitors), Catherine MacGinley (MacGinley Quinn, Louth), John Elliot (Law Society of Ireland); (back, l to r): Katherine Kane (Law Society Finuas Skillnet), Lynda Smyth (Coyle Kennedy Smyth, Monaghan), Áine Curran (O’Mara Geraghty McCourt Solicitors, Dublin), Brendan Twomey (revenue sheriff, Donegal), Patrick Sweetman (Matheson, Dublin), Kevin Hickey (Hickey Henderson & Co, Monaghan) and Anne Stephenson (Stephenson Solicitors, Dublin)

Brendan Twomey (revenue sheriff, Donegal) Event chair, Conor MacGuill Law Society Gazette | gazette.ie PEOPLE November 2019 11

Damien Rudden, Kelly Ann Keegan, Clare Gormley and Pauric Murray Lorraine Kane, Colm O’Cochlain, Gillian O’Shea

Donna Crampsie, Niall Sheridan and Christopher Quinn Ann Skinnader, Gráinne Dolan and Elaine Gray

Linda Smith, David McAlinden, Cathy Donald, Shane McMahon and Michael Kevin Byrne, Brendan Twomey and Michael Woods Bishop

David Thorpe, Warren Bolger and Sinéad McCabe Catherine McGinley, Carthage Conlon, Áine Curran and Conor MacGuill 12 November 2019 PEOPLE Law Society Gazette | gazette.ie

CELEBRATING THE CLASS OF 2019

Pictured at the annual conferral ceremony 2019 for the Certificate in Professional Education are (front, l to r): Ita Lyster, Michelle Nolan (Law Society Finuas Skillnet), Antoinette Moriarty (programme director), Deirdre Fox (Law Society Finuas Skillnet Committee), Attracta O’Regan (head, Law Society Finuas Skillnet), Dr Gabriel Brennan (programme director) and Lisa Finlay; (back, l to r): Joanna Jackson, Martin O’Brien, Paul McMahon, Cian Monahan, Claire O’Mahony, Bill Holohan, Gillian Lynch, Nicholas Kelly and Gwen McDevitt (Law Society Finuas Skillnet)

Pictured at the annual conferral ceremony 2019 for Coaching Skills for Pictured at the annual conferral ceremony 2019 for the Executive Leadership Managers are (front, l to r): Michelle Nolan (Law Society Finuas Skillnet), Isolde Programme are (front, l to r): Monica Hynds O’Flanagan, Carmel Kelly, Deirdre Norris (programme delivery team), Attracta O’Regan (head, Law Society Finuas Fox (Law Society Finuas Skillnet Committee), Katie da Gama (programme Skillnet), Deirdre Fox (Law Society Finuas Skillnet Committee), Antoinette delivery team) and Antoinette Moriarty (programme director); (back, l to r): Moriarty (programme director) and Rosemarie Hayden; (back, l to r): Ann-Marie Michelle Nolan (Law Society Finuas Skillnet), David Mulvihill, Rita Monaghan, Carroll, Sandrine Greene, Keith O’Malley, Michael Moore, and Gwen McDevitt Attracta O’Regan (head, Law Society Finuas Skillnet), and Gwen McDevitt (Law (Law Society Finuas Skillnet) Society Finuas Skillnet) Law Society Gazette | gazette.ie PEOPLE November 2019 13

A WARM WEST CORK WELCOME ALL PICS: THE BARN STUDIO/GEORGE MAGUIRE

Law Society President Patrick Dorgan and director general Ken Murphy met with the West Cork Bar Association (WCBA) at Dunmore House Hotel on 8 October. (Front, l to r): Myra Dineen, Anthony Greenway (vice-president, WCBA), Catherine O’Brien, Donna Wilson, Siun Hurley (honorary secretary, WCBA), Ken Murphy (director general), Kevin O’Donovan (president, WCBA), Patrick Dorgan (president, Law Society), Plunkett Taaffe, Veronica Neville, Barbara Daly, Paul O’Sullivan (CPD officer, WCBA) and Phil O’Regan; (back, l to r): Jim Brooks, Siobhan Daly, Maria O’Donovan, Diarmuid O’Shea, P J Feeney, Lorna Brooks, Eamonn Fleming, Eileen Hayes, Laetitia Baker, Frank Purcell (PRO, WCBA), Mary Jo Crowley, Virgil Horgan, Fiona Lucey, Ronnie Collins, Denis O’Sullivan, John McCarthy, James Long, Flor McCarthy, Lisa Crowley, Susan Lee, Flor Murphy and Shane McCarthy

Anthony Greenway, Siun Hurley, Catherine O’Brien and Myra Dineen Denis O’Sullivan, Paul O’Sullivan, Barbara Daly, Fiona Lucey and Kevin O’Donovan

Virgil Horgan and Patrick Dorgan Laetitia Baker, Siun Hurley and Mary Jo Crowley Eamonn Fleming, Diarmuid O’Shea and Jim Brooks 14 November 2019 NEWS Law Society Gazette | gazette.ie

BRUTON CHAIRS BREXIT LEGAL SERVICES INITIATIVE The Government has appointed former Taoiseach John Bruton to chair the Implementation Group for its Brexit Legal Ser- vices Initiative. The initiative seeks to identify and pursue any dividend that may result from the fact that, post-Brexit, Ire- land will be the only English- speaking, common law jurisdic- tion in the EU. The proposal for a ‘Brexit Legal Services Initiative’ was made jointly by the Bar of Ire- land and the Law Society in May 2018. It was proposed as an integral part of the State’s national economic response to Brexit, and also to support the country’s existing and very suc- cessful foreign direct investment programmes.

Joint initiative adopted In January 2019, following a At the advance meeting in the Department of Justice on 11 October: Patrick Dorgan (Law Society president), former memorandum brought to Gov- Taoiseach John Bruton, Ken Murphy (director general), and Liam Kennedy (Council member) ernment by Justice Minister Charlie Flanagan, the Govern- mid-1990s, has also served as pated that the role of the group Seamus Woulfe SC will also be ment welcomed and adopted the the EU’s ambassador in Wash- will be to identify opportunities a member of the group. joint initiative of the Bar of Ire- ington DC, and as chairman of and the best pathway to promote Director general Ken Murphy land and the Law Society. the IFSC Ireland with the role the use of Irish law and Irish remarked: “This is a contested Already this year, delegations of promoting Ireland as a loca- legal services in contracts and space. Other EU jurisdictions, that have included the chief jus- tion of choice for international transactions. An initial pooled including France, Germany and tice, the attorney general and financial services. fund of up to €100,000 is being The Netherlands, are position- representatives of both the Bar established to support the initia- ing themselves to avail of any and the Law Society have sepa- Advance meeting tive, with the Law Society and opportunities for additional rately visited both Washington In advance of the first meeting the Bar having agreed to ini- legal work that may result DC and Dallas, Texas. Meetings of the implementation board, tially fund it on a ‘two-thirds/ from London potentially los- and social events have been held Bruton met with representatives one-third’ basis. ing some of its pre-eminence with leading figures in the legal of the Law Society, comprising as a legal centre, post-Brexit – and business communities in the president Patrick Dorgan, direc- High-level representatives not least because of the end to United States. tor general Ken Murphy and In addition to the two profes- automatic enforceability of UK The first meeting of this pro- Council member Liam Kennedy sional bodies, also represented court judgements in EU mem- ject’s Implementation Group on 11 October 2019. at a high level on the group ber states. (as appointed by Government) Mr Bruton was briefed on will be the Departments of the A choice of Irish law and took place on 25 October 2019 what the Law Society sees as the Taoiseach, Finance, Justice and Irish courts in dispute-reso- and sees the project now pro- priorities and possibilities of this Equality, Business Enterprise lution clauses in international ceeding on a firm footing. The exciting new initiative, which is and Innovation, Public Expen- agreements may be the solu- group is chaired by John Bru- designed to attract additional diture and Reform, Foreign tion. But that message has to be ton who, subsequent to his hav- legal work to Ireland. Affairs and Trade, and IDA delivered persuasively, and to ing served as taoiseach in the In broad terms, it is antici- Ireland. The attorney general the right people.” Law Society Gazette | gazette.ie NEWS November 2019 15

ONE IN TWO FEMALE LAWYERS BULLIED AT WORK, IBA FINDS At its meeting on 13 September Julia Gillard observed: “Sexual 2019, the Law Society Coun- harassment is not one horrible cil received a presentation from moment in time,” she said. “It director general Ken Murphy on undermines a sense of self, cor- the disturbing findings of Inter- rodes confidence, and can give national Bar Association (IBA) rise to anxiety, depression – even worldwide research. The IBA suicidality.” report was published in May 2019 Citing the IBA’s landmark under the title Us Too? Bullying report, Ms Gillard noted that and Sexual Harassment in the Legal female lawyers were more likely Profession. than their male peers to be tar- Nearly 7,000 individuals from geted. 135 countries responded to the A particular problem in the IBA’s survey. The results pro- legal profession is that of the serial vide empirical evidence that offender whose ‘eccentricities’ are bullying and sexual harassment brushed under the carpet because are rife in the legal profession. they are a high-earning partner Approximately one in two female or a ‘courtroom magician’. New respondents, and one in three reporting methods are needed male respondents, had been bul- to expose such ‘brilliant jerks’, lied in connection with their Director General Ken Murphy welcomed former Prime Minister of Australia Julia Gillard said. employment. One in three female Gillard, who was the keynote speaker at the IBA annual conference in Seoul But rather than dwell on the respondents had been sexually problem, the former solicitor harassed in a workplace context, profession through a series of that produced the IBA report. As chose instead to focus on solu- as had one in 14 male respon- measures, including conscious- such, he recently had the oppor- tions, declaring that our goal dents. ness raising (this is the second tunity to meet with the keynote should be to create safer and No one on the Council sought Gazette article on the topic in speaker, former Prime Minister more productive workplace envi- to pretend that Ireland was recent months), and a seminar of Australia Julia Gillard, at the ronments. immune to the problems of bul- that is currently being planned. IBA’s standing-room-only semi- “I want to explore how we can lying and sexual harassment in Ken Murphy, in his capacity as nar on the topic at its annual con- end up with a legal profession the legal profession. It was agreed an officer in the Bar Issues Com- ference in Seoul, South Korea. where sexual harassment and bul- that the Law Society must con- mission of the IBA, served as a Among her contributions in a lying have gone the way of ink front these insidious issues in our member of the working group riveting address to the seminar, pots and quills,” she said.

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JUST ARRIVED TRANSFER OF COMPLAINTS- HANDLING TO LSRA Legislation transferring responsibility for complaints handling from the Law Society to the Legal Services Regulatory Authority came into effect on 7 October. Part 6 of the Legal Services Regulation Act 2015 states that any new complaints regard- ing solicitors must now be made to the authority, and not the Law Society. The Soci- ety will continue to investigate existing com- A Guide to Expert plaints that were received prior to the com- Witness Evidence mencement of part 6 of the act, until those By Mark Tottenham and Emma Prendergast with Ciaran Joyce and Hugh Madden complaints have reached conclusion. A uniquely comprehensive exploration of In circumstances where a complainant expert witness evidence in Ireland, this title attempts to reopen a complaint with the looks at the practicalities surrounding the role of expert witnesses with a key section authority that has been previously decided by on the pre-trial context. the Society, the following should be noted: Price: €175 • On receipt of a complaint, the authority is Available: Sept 2019 ISBN: 9781847667175 required to conduct a preliminary review to consider whether the complaint is admis- • Complainants to the authority must con- sible. Complaints will be deemed inadmis- firm whether they have made a similar COMING SOON sible if they are frivolous, vexatious, out of complaint to the Society and, if so, state time, or without substance or foundation. the outcome. Solicitors will also be given • Section 58(4) of the act requires the an opportunity to advise the authority of I r I

sh rIsh COLOUR VISUAL I authority to determine a complaint as a previous complaint. If the complaint has CLOTH COLOUR: C RACING GREEN ConveyanCIng FOILING: onveyan SILVER Law inadmissible if it has been previously con- been the subject of civil or criminal pro- sidered under the Solicitors Acts 1954-2015 ceedings, the authority also requires full CI

ng by the Society, the Solicitors Disciplinary details of these proceedings. L

aw Fourth Edition Tribunal, or the High Court. The act also requires the authority to deem a complaint The Society strongly recommends that, Fourth Edition J.C.w. wyLIe Una woods inadmissible if it is the same, or substan- where a solicitor is subject of a complaint wyLIe woods tially the same, as an act or omission that made to the authority, and the solicitor was the subject of civil or criminal proceed- knows that this complaint was previously ings that has been concluded by a court in dealt with, the solicitor indicates this history, Irish Conveyancing Law favour of the solicitor concerned. in the clearest terms, to the authority. By J C W Wylie and Una Woods This is the essential guide to conveyancing law and practice. This fourth edition reflects changes in practice resulting from the LAW DIRECTORY OPT-OUT pre-contract deduction and investigation of title system introduced by the Law The Law Society has responded to requests Society’s Conditions of Sale 2019 Edition and by certain members who wish to opt-out of Requisitions on Title (2019 Edition). receiving the annual Law Directory. Price: €275 Available: Nov 2019 ISBN: 9781847661616 When updating your Law Directory entry on www.lawsociety.ie/lawdirectory, members Order your copies today can now opt out of receiving the directory by Visit us at post. bloomsburyprofessional.com/ie There is now an option at the bottom of the form to ‘tick to opt out of receiving the €5.50 P&P directory by post’. LAW Those who wish to avail of this option DIRECTORY should make sure to click the ‘Save prefer- 2019 ence’ box at the end of the process. Law Society Gazette | gazette.ie NEWS November 2019 17

CELEBRATING THE SOCIETY’S PSYCHOLOGICAL SUPPORT SERVICES Solicitors deal with such an amount of emotional and psycho- logical complexity in their day-to- day work with clients that, with- out robust internal scaffolding, the personal price can be huge. Antoinette Moriarty, psycho- therapist and manager of the Law School’s psychological ser- vices explains: “A large part of the work of a solicitor is dealing with people in crisis of one form or another. Crucially, solicitors operate without any of the train- ing other front-line professionals, such as social workers or indeed PPC1 trainees taking part in ‘Pop-up yoga’ as part of Mental Health Week psychotherapists, receive.” The Law School has intro- normalising and bringing relief – Shrink Me is an integral part of needs and goals of this generation. duced a module – called ‘Shrink and humour – to the less spoken- the Professional Practice Course, Integrating psychological develop- Me’ – that aims to plug this gap, about side effects of being a high- forming a third pillar of profes- ment within professional training emphasising psychological well- achiever.” sional education alongside core is an area in which the Law School being, analysing the psychology While ‘Shrink Me’ tackles legal subjects and skills. “This is now leading internationally.” of a lawyer, and carefully unpack- some tough topics, there is a con- positioning is both deliberate and This is just one innovative aspect ing of the psychology of a law scious emphasis on trainees’ well- unique,” says Moriarty. “Includ- of the Law School’s professional firm. being, their leadership potential, ing psychology on the core legal training that is setting it apart from “The module is, in some ways, and the importance of creating curriculum has been a game- other educational bodies. Perhaps, like a good therapy session,” careers that generate success changer, giving us the edge over most importantly, it is creating observes Moriarty. “It goes under without jeopardising personal other professions that are slow to a sense of belonging among the the bonnet of professional life, happiness. respond to the changing values, future of the legal profession.

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Your multi-award-winning magazine of record, the Law Society Gazette, delivers the legal news to 13,600 subscribers a month – that’s a total of 40,800 readers. Condensed Don’t forget, the interactive Gazette is available into a digest online, with lots of cool features like links to Gazette.ie now delivers a weekly briefing of music, videos, legislation and case law. the top legal news stories, as published on You can also access the Gazette archive and Gazette.ie, to Law Society members and sub- indices right back to 1997. scribers via email. Law Society Gazette | gazette.ie NEWS November 2019 19

NEW JUDGES FOR COURT OF APPEAL ENDANGERED LAWYERS DERK WIERSUM, NETHERLANDS

Derk Wiersum Derk Wiersum (44), married with erlands is a European hub, is at two children, was leaving his least €20 billion annually. Amsterdam home early on the The police have, likewise, been morning of 18 September 2019 warning of the creeping influ- when he was gunned down by a ence exerted by drug-related youth who fled on foot. He was organised crime. As reported in The Government has approved while the seventh is being appointed a defence lawyer representing The Irish Times, a police union the appointment of seven new on the retirement of Mr Justice a drugs gangster turned state’s leader Jan Sluijs stated that this judges to the Court of Appeal. Michael Peart on 26 October. witness, Nabil Bakkali, who is in was confirmation, if any were All nominations have gone to Four of the newly elevated custody. needed, that “we are living in a President Michael D Higgins judges served as High Court He was a partner in a major law narco-state” – a remark that most for approval. The court will now judges – Mr Justice Seamus Noon- firm and specialised in organised in the country would understand, have 15 judges. an, Mr Justice Robert Haughton, crime cases. The prime suspects whether they agreed or not. Six of the judges are being Ms Justice Úna Ní Raifeartaigh and behind the shooting are on the As in the Netherlands, it is appointed with immediate effect, Ms Justice Mary Faherty. Netherland’s most-wanted list unusual for Irish lawyers to be and are members of a cocaine- physically threatened. In 2005, smuggling gang, with 11 of them the home of solicitor John Hen- already in custody. nessy (whose client was Baiba COMMS DAY FOR SOLE Wiersum had no official protec- Saulite) was petrol-bombed and PRACTITIONERS AND tion, though his client (Bakkali’s set on fire as he and his partner brother) was shot last year. This slept, and he received death SMALLER PRACTICES situation is now being remedied threats. He had acted for Ms for officials involved in this and Saulite in seeking the return of The communications needs of over Ireland, and other gangland cases. her two young sons who had sole practitioners and smaller • The benefits to solicitors of The murder is being regarded been kidnapped and moved to practices will be the main focus living in rural Ireland and by many in the context of the tol- Lebanon by their father, and of the Law Society’s annual practising in smaller firms. erance for soft drugs in the Neth- he succeeded in having them Communications Day, which erlands and the large-scale organ- returned. He wore a bulletproof takes place on Monday 25 The event will run from 11am to ised crime that has developed as vest and received intermittent November 2019. 3.30pm on and will take place in a result. A report in August pre- police surveillance. In the event, As part of the Small Practice the Blue Room at the Law Soci- pared for Amsterdam city council it was his client who was shot Support Project, the Society has ety of Ireland, Blackhall Place, said that the city’s drugs policies as she stood at her front door developed a targeted media skills Dublin 7. Refreshments and a had allowed “drugs criminals, a year later. She had no police and messaging workshop, which late lunch will be provided. hustlers, parasites, middlemen protection, though also feared is free to members. It has been To register, email Kathy Mc and extortionists” to flourish, for her life. On her death, John specially designed to help smaller Kenna at k.mckenna@lawsociety. and that the underworld of drug- Hennessy was given police pro- practices proactively promote: ie. Members can also visit the related organised crime was now tection for a period. • The unique value of smaller Small Practice Business Hub for influential in the city. There are firms, information on courses and tools estimates that the value of the Alma Clissmann is a member of • Their vital role in communi- to help build a more successful drugs trade, in which the Neth- the Human Rights Committee. ties and local economies all and sustainable business. 20 November 2019 NEWS Law Society Gazette | gazette.ie

MARY LYNCH RETIRES MCCANN FITZGERALD AFTER 45 YEARS OF APPOINTS NEW CHAIR STERLING SERVICE Mary Lynch, registrar of the Solicitors Disciplinary Tribunal, has retired after 45 years of ser- vice. Mary joined the Law Society in 1974, when it had just 16 staff members, all located at the Four Courts. When the clerk to the then Disciplinary Committee was hospitalised, Mary was asked to deputise. McCann FitzGerald’s new chair Catherine Deane and managing partner Barry As her workload expanded, she Devereux worked for both the Complaints and Disciplinary Committees, Top-tier firm McCann FitzGer- Devereux commented that the and was secretary to the Arbitra- ald has created a new role of chair, creation of the role of chair was tion Committee. appointing aviation finance expert “an exciting development” and She pursued a law clerk course Catherine Deane to the position. “one that we believe adds signifi- in Rathmines College, following Mary Lynch Catherine begins her four- cant strength to the firm’s leader- it up with a BSc in Management year term on 1 November. She ship”. from Trinity College Dublin. was centrally involved in draft- has over 25 years of experience Catherine commented: “I am Mary served as clerk to the Dis- ing revised tribunal rules in 1998, in advising on and acting for the excited and energised by the chal- ciplinary Committee until 1994, 2003 and 2017. world’s largest aircraft lessors and lenges that the role presents.” when she became registrar to the We wish Mary health and hap- financiers. She has been a partner McCann FitzGerald employs then newly established Solici- piness during her well-deserved in the firm since 1992. 650 people, including over 450 tors Disciplinary Tribunal. She retirement. Managing partner Barry lawyers and professional staff.

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FIXED-CHARGE NOTICES LEGISLATION UNCONSTITUTIONAL In a judgment that is expected to so, handing down a €300 fine might receive different penal- have a widespread impact, High and five penalty points. The man ties due to circumstances wholly Court judge Ms Justice Úna Ní appealed. outside their control – that is, Raifeartaigh has ruled that a sec- A number of District Court non-receipt of the fixed-charge tion of the Road Traffic Act con- prosecutions have been on hold notice. cerning fixed-charge notices is pending the High Court chal- It was claimed that such a dis- unconstitutional. lenge. tinction was in breach of the fair The relevant legislation pre- On 8 October, Ms Justice procedure and fair trial require- vented a man from arguing, as a Ní Raifeartaigh said that she ments of the Constitution, and defence to a charge of holding a would deliver her judgment on incompatible with the State’s mobile phone while driving, that the complex case (and a similar obligations under the European he was not served with a first case) on 30 October. However, Ms Justice Úna Ní Raifeartaigh – Convention on Human Rights. the legislation fails to distinguish fixed-charge notice. because she was aware that the between those who choose not to Ms Justice Ní Raifeartaigh Section 44.10 of the Road judgment would have a signifi- pay, and those who don’t receive the noted that the State took the Traffic Act 2010 (as amended cant impact, she offered to out- first fixed-charge notice position that the word ‘serve’ by section 27 of the Road Traf- line her conclusion, so that the could have two different mean- fic Act 2016) did not distinguish State would have time to either accordance with section 35.” ings within the context of one between those who chose not to appeal or amend the relevant leg- Section 35(2) deals with the act. She considered this could pay a first fixed-charge notice, islation. No final orders would serving, by gardaí, of fixed- not be the case, and respectfully and those who genuinely did not be made before that. charge notices. It states: “A disagreed with previous High receive it, Ms Justice Úna Ní The judge concluded that sec- prosecution in respect of a Court judgments on the issue. Raifeartaigh said. tion 44.10 of the Road Traffic Act fixed-charge offence shall not be She added that section 35.2 of 2010 (as amended by section 27 instituted unless a fixed-charge the 2010 act and section 44.10 Initial notice not received of the Road Traffic Act 2016) was notice in respect of the alleged of the same act (as amended by The Irish Examiner reported unconstitutional. offence has been served on the section 27 of the Road Traffic Act that the man was summoned Section 44.10 states: “Where person concerned under this sec- 2016) were contradictory. The on a charge of holding a mobile a person is served with a sum- tion and the person fails to pay legislation did not distinguish phone while driving. While he mons accompanied by a section the fixed charge in accordance between those who chose not to admitted the offence during a 44 notice in respect of a fixed- with the notice.” pay the first fixed-charge notice, District Court hearing in March charge offence, it shall not be a and those who genuinely did not 2018, he said that he had not defence for the person served Outside their control receive it, she said. received the initial fixed-charge with the summons to show In his High Court proceedings, She was thus prepared to notice. that he or she was not served the man argued that section quash the conviction and grant a While he received the sum- with a fixed-charge notice in 44.10 means that defendants declaration that the section was mons with the second fixed- respect of the alleged offence in charged with the same offence unconstitutional. charge notice attached, he claimed that, because he did not get the initial notice, he was denied the opportunity to pay a EMPLOYMENT LAW ADVICE CLINIC lower fine. His lawyers applied to have FOR WOMEN LAUNCHED the case dismissed, arguing that Community Law & Media- for women experiencing prob- discrimination in the workplace. he had been prejudiced by not tion and the National Women’s lems at work, such as unequal The clinic takes place at the having had the opportunity to Council of Ireland (NWCI) have pay, discrimination, and sexual offices of the NWCI (North pay the lower fine. The case was launched a new employment law harassment. King Street, Smithfield, Dublin adjourned. advice clinic for women, writes The issues raised at the clinics 7). Should solicitors be inter- In May 2018, after the State Elizabeth Devine. will feed into the development ested in referring a person to argued before the District Court The new clinic is funded by of a Bill of Rights for Working the clinic, appointments can be that, arising from section 44.10, the Irish Human Rights and Women, which, when complete, booked through Denise Roche the District Judge was obliged to Equality Commission and takes aims to provide a safeguard for (legal and policy officer) at convict the man, the judge did place on a monthly basis. It caters women and act as a check against [email protected]. 22 November 2019 SOCIAL NEWS | PROFILE Law Society Gazette | gazette.ie

SWEET CHARITY

The charity sector has become highly regulated in a short space of time, but achieved 98% compliance in annual reporting in 2018. Charities Regulator CEO Helen Martin urges all charities to be transparent. Mary Hallissey reports

MARY HALLISSEY IS A JOURNALIST WITH GAZETTE.IE

elen Martin is con- ernance. To this end, it launched get to see how committed peo- stantly being told that the Charities Governance Code in ple were to getting things done there are too many November 2018. “Our mission right, and working really hard.” charitiesH in Ireland and that she is to regulate the charity sector The director of regulation should shut some down. That’s in the public interest so as to job at the newly formed Chari- not her job. ensure compliance with the law ties Regulator came up in 2017. The CEO of the Charities and support best practice in the “With my regulatory and legal Regulator believes that charities governance, management and background, I thought it would will stand or fall by the work that administration of charities,” says be particularly interesting, as a they do – by that measure, it is Martin. new area of regulation,” Martin the public that will determine The creation of the regula- says. whether or not they are success- tor put additional administrative On her arrival, Martin was ful. The job of the regulator is to duties on the sector, but Martin initially amazed at the diversity make sure that existing charities is adamant that regulation is pro- of charities. She saw massive have proper governance struc- portionate and that there is an commitment among volun- tures. This is what will guarantee overall benefit in a more trans- teers with a true belief in their public confidence and support parent and accountable charity endeavours. “In the charity sec- and, therefore, their continued sector – which is essential for tor, you’re dealing with fantastic existence. sustainability, as State funders, people doing amazing things. The regulator’s overriding donors, and volunteers expect We register charities, so I have vision is for a vibrant, trusted more from charities. direct experience of looking at ALL CHARITIES charity sector that is valued for the applications and seeing the SHOULD the public benefit that it provides. Fresh fields interesting work that people Transparency and accountability Martin had a varied career as are doing, whether it’s a cancer ALWAYS GET are key to achieving that vision, a lawyer before arriving in the patients’ transport network or Martin notes. charity sector, graduating with a first responder groups or envi- PROFESSIONAL She urges trustees to ensure BCL from UCD in the mid ’90s, ronmental groups. It’s amazing ADVICE, that every charity’s full set of doing a postgrad in competition to see the time and effort people accounts is published online, law at King’s College London, as put in to serve their communi- WHETHER rather than simply an abridged well as qualifying as a barrister, ties,” she says. IT’S LEGAL OR version. “We have seen a growth working in telecoms regulation, in the number of charities filing and also spending eight years Passing the test ACCOUNTING, abridged accounts. While they working in the Attorney Gener- So far, relatively few applica- may be legally entitled to do al’s office as a legislative drafter. tions have been turned down. IF THEY DON’T it, we do not think it’s the right There, she worked long hours Martin attributes this in part to HAVE THAT thing to do. All charities should as part of the large team drafting the Charities Regulator’s com- be publishing their full set of the complex laws that created mitment to continually refine SPECIALISM accounts on their websites.” NAMA, as well as other legisla- the step-by-step guidance on its The Charities Regulator has tion related to the financial cri- online registration process. AVAILABLE TO a compliance and enforcement sis. “When you go in at a time of “People have to really think THEM ON THEIR function under the Charities financial crisis, when everyone and understand what a charity Act 2009, but also has a role in was working late hours and long is before they apply for registra- BOARD enhancing best practice in gov- days in the national good, you tion,” says Martin. Charities are Law Society Gazette | gazette.ie SOCIAL NEWS | PROFILE November 2019 23 ALL PICS: CIAN REDMOND

a sub-set of the wider not-for- a charitable purpose and provid- available to potential trustees or Having rigorous regulatory profit sector, she points out. ing public benefit. anyone thinking about volun- processes focuses minds in terms The regulator’s staff are A well-run charity sector gen- teering for a charity … there’s a of charitable purpose and activi- trained in how to apply the erates trust and confidence, in lot more information available ties, Martin says. “The level of ‘charities test’ and will rigor- both money given and volunteer that they can check. They can compliance with annual report- ously assess whether an applicant time offered. “In a regulated sec- take a certain confidence from ing requirements show that meets that test in terms of having tor, there are far more supports that,” she said. charities understand that there’s For any queries please contact the brand guardians: For any queries please contact the brand guardians: Neworld Associates P: 01 416 5600Neworld Associates P: 01 416 5600 9 Greenmount Ave E: [email protected], Harold’s Cross [email protected] Greenmount Ave E: [email protected], Dublin 12 neworld.comHarold’s Cross [email protected] Dublin 12 neworld.com

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a value to them in completing ance and enforcement. Failure to were not registered charities. their annual report on time, since keep proper books of account or “All charities should get pro- the information is put online and governance lapses are the main fessional advice, whether it’s is a window for the public into red-flag areas. “We are currently legal or accounting, if such their finances and activities. It’s building up our team, and will be advice is required and they don’t THERE IS AN also very important to charities recruiting lawyers with trust law have that specialism available that they maintain their Irish- and regulatory experience over to them on their board or from OVERALL BENEFIT registered charitable status.” the coming months,” says Mar- staff,” Martin says. However, tin, “so I would urge anyone with only larger more complex chari- IN A MORE Red flags an interest in working with the ties will need an in-house legal TRANSPARENT No charity has yet been removed Charities Regulator to keep an team, she believes. from the charities register as a eye on our website.” And Martin urges charities to AND result of failing to comply with A total of 686 individual ‘con- get creative about pulling in fresh ACCOUNTABLE obligations under the Charities cerns’ were raised with the regu- blood, and looking beyond the Act, as the regulator’s initial focus lator in 2018, which amounts to obvious sources for new recruits. CHARITY SECTOR, has been to ensure that charity between 50 and 60 each month. A charity’s website is its shop trustees are informed of those However, not all of these are window and should be as good as WHICH IS obligations. However, as regula- escalated, and only 44% related possible. “It’s about telling people ESSENTIAL FOR tion in the sector matures, there to registered charities – the what you do and telling that story will be a greater focus on compli- remainder related to entities that well,” says Martin. SUSTAINABILITY

FOCAL POINT THEY SAY IT BEGINS AT HOME • Ireland has 65,300 charity community welfare, conflict Reformed Church founded by always be sealed and full trustees, comprising board, resolution, integration of Chinese migrants, the Celestial information available about the committee members and the disadvantaged, and Church of Christ Ajijola-Jesu purpose for which the funds are company directors. advancement of the arts, (Providence) Parish in Dublin being collected. It should also • The four main categories of culture, heritage or sciences. 15, and the Rosemount public be clear whether any collector is ‘charitable purpose’ under • A charity may need to spend children’s playground in Moate, an employee, a volunteer, or a the Charities Act 2009 are the some of its funds on salaries, Co Westmeath. professional fundraiser. prevention or relief of poverty and it is acceptable to do so, • €350 million is donated annually • Payment to professional or economic hardship, the provided that it is “reasonable to registered Irish charities, with fundraisers has to be advancement of education, in all the circumstances, ancillary an average weekly donation per reasonable, and the charity the advancement of religion, and necessary to further the household of €3.75. must get a fair proportion of and any other purpose that is public benefit”. • If a member of the public any moneys raised. of benefit to the community, • A total of 44 new charities were feels disquiet at any on-street • Concerns about charities can such as environmental added to the register during fundraising activity, they should be raised with the Charities protection, promotion of August 2019, with causes first raise their concerns with the Regulator by using its online health, animal welfare, ranging from an all-Irish Steiner particular charity. concerns form, available on its community development, school in Co Kerry, the Bible • Collection buckets should website. 26 November 2019 ANALYSIS | NEWS IN DEPTH Law Society Gazette | gazette.ie

THE TIME HAS COME

As PII renewal approaches, Julie Brennan says that, in a market with a reduced number of insurers and increased premiums almost guaranteed for many law firms, the time has come to manage risk more effectively

JULIE BRENNAN IS MANAGING DIRECTOR AT THE INSTITUTE OF LEGAL RESEARCH AND STANDARDS

he issue of risk manage- of using an automated sys- file is audited against specific ment is so important to tem means that there will be criteria: fee earners should not insurers that they have a firm and matter-centric view audit their own files; a form Tdevoted the largest part of the of this information, which is is generally used; and the file annual professional indem- essential to managing risk. In should be scored. nity insurance (PII) common relation to critical dates, there 5) Regularly monitor your proposal form to this subject. must be a system to establish own files. A system should As we now approach the PII that the correct date was ini- be implemented to ensure renewal period, in a market with tially entered. Solicitors should that files are regularly moni- a reduced number of insurers check the legislation wording if tored and reviewed. The com- and increased premiums almost they are in any doubt. mon proposal form guidance guaranteed for many firms, firms 3) Use your case management notes define a file review as a should now consider how to system effectively. This “quick, frequent review of files effectively manage risk. might seem obvious, but it is to monitor progress, which surprising how many firms can be done by fee earners on Top ten tips are not maximising the use of their own files or by a super- 1) Good client engagement their case-management sys- vising partner”. Files should be procedures. Think before tems. Many firms have invested kept up to date and progressed taking on a new client. Has significantly in advanced sys- promptly. THERE ARE the firm the capacity, capabil- tems, but due to either time 6) Get everyone involved. A NUMBER ity and competence to accept constraints or a reluctance to Having eyes and ears through- instructions? Is the client/ implement change, these sys- out this process, as well as OF THINGS case too good to be true? Are tems are not being used either buy-in from all staff, is crucial. there higher-than-normal risk efficiently or effectively. Your From the most junior mem- SOLICITORS factors? At a minimum, firms case-management system will ber of staff to the most senior SHOULD DO IF should have a detailed let- allow you to enter estimated partner in the firm, everyone ter of engagement, including fees and expected invoice dates, should be encouraged to con- THEY RECEIVE all relevant terms and section ensuring compliance with your tribute to the management of 150 notices. The set-up pro- obligations under section 150. risk within the organisation. A COMPLAINT cedures should be uniformly Time recording should be 7) Allocate time and sufficient OR CLAIM, applied in your firm to ensure kept up to date. All fee earners resources to this process. quality and consistent stan- should time-record on every This will take time but, in the OR INDEED IF dards. matter, regardless of the fee long run, it will reap rewards, 2) Manage your critical regis- structure. This will enable the as time spent identifying THEY BECOME ters. Firms can either operate firm to keep track of the profit- potential issues and imple- AWARE OF manual or systemised regis- ability of the case/matter. menting appropriate controls ters, but they need to be used 4) Implement a file-audit sys- will save a firm multiple hours CIRCUMSTANCES by everyone in the firm, they tem. It is imperative that firms when (not ‘if’) something goes need to be reviewed regu- have a system to audit files wrong. The best firms we have THAT COULD larly, and the overall respon- regularly, as early identification worked with have a dedicated GIVE RISE TO A sibility for this must be given of issues is key to reducing the risk-management partner or to a principal or a partner in risk. As per the common pro- even a risk-management team, CLAIM your firm. The advantages posal form guidance notes, the who meet regularly with a rep- Law Society Gazette | gazette.ie ANALYSIS | NEWS IN DEPTH November 2019 27 PIC: GAZETTE STUDIO/SHUTTERSTOCK

Time for another piece of the PII

resentative from each depart- proposal form, be mindful 9) Blame-free culture. It is so ment. of the detail in the questions important that all members of 8) Review policies and pro- being asked in relation to risk- staff in your firm are encour- cedures at least annually. management procedures. You aged to seek assistance at the All of your firm’s policies and should not answer ‘yes’ to any earliest opportunity if they procedures should be updated question unless you can pro- make a mistake. No matter how THE BEST as required, but at least annu- vide clear evidence that you big the error, early identifica- ally. Updated policies should have implemented the relevant tion of the issue, along with the FIRMS WE be made available to all staff. policy or control. Be very wary implementation of any reme- HAVE WORKED Relevant and regular train- of multi-part questions, as you dial action, can greatly reduce a ing should be provided to all must be compliant with all ele- firm’s exposure. WITH HAVE A staff, in particular in the areas ments of the question. It is a 10) Seek outside assistance. There of cybersecurity, GDPR, anti- regulatory offence to give a is no need for your firm to start DEDICATED RISK- money-laundering, and any knowingly misleading answer reinventing the wheel when MANAGEMENT other regulatory changes. If to any question on the com- it comes to drafting relevant completing the full common mon proposal form. policies and procedures. There PARTNER Time for Time for something new something new

New Solicitors Professional Indemnity Facility New SolicitorsMake Professional the bright choiceIndemnity Facility Make the bright choice Benefits include: Benefits include: • ‘A’ Rated Security • Competitive Rates • Capacity for Growth • ‘A’ Rated Security • Competitive Rates • Capacity for Growth • ‘A’ Rated Security • Competitive Rates • Capacity for Growth 045 247348 www.arachas.ie [email protected] 045 247348 www.arachas.ie @ [email protected] Arachas045 Corporate 247348 Brokers Limited tradingwww.arachas.ie as Arachas, Capital @IM, Covercentresolicitors is @arachas.ieregulated by Arachas Corporate Brokers Limitedthe trading Central as BankArachas, of Ireland Capital IM, Covercentre is regulated by the Central Bank of Ireland Arachas Corporate Brokers Limited trading as Arachas, Capital IM, Covercentre is regulated by the Central Bank of Ireland Law Society Gazette | gazette.ie ANALYSIS | NEWS IN DEPTH November 2019 29

are many risk-management Reasons to manage risk reduces uncertainty to toler- resources and relevant tem- • It increases the likelihood able levels. plates available to firms, with- that you will achieve your out charge, in the Law Society’s objectives, Gerard Joyce (chief technical members’ area. There are many • It brings focus on what matters, officer of Cal Q Risk) concludes: providers offering specialist • You will make better-informed “If I were to sum up the benefits staff training in relevant fields. decisions, of formally managing risk in two External advisors, such as the • You will have fewer losses, words, they would be ‘improved Institute of Legal Research and • It is forward looking and acts performance’. Investment in risk Standards, can be engaged to as an early warning indicator, management is returned in the assist firms in managing this • The process also identifies form of better, more efficient area, either through an annual opportunities, operations, with less uncer- audit or by providing staff train- • Good corporate governance tainty and greater consistency. ing and template policies to deal demands it, and Consistency is fundamental to with all potential risk areas. • In short, managing risk quality.”

WHAT CAN GO WRONG… Over the past ten years, there has or exaggerated claims and order- receive a complaint or claim, or been a shift in the types of claims ing plaintiffs to pay defendants’ indeed if they become aware of YOU SHOULD against solicitors. Following the costs. Plaintiffs’ solicitors, there- circumstances that could give property crash and recession, fore, need to make sure that rise to a claim (which is also noti- NOT ANSWER there were significant numbers they have a proper record of all fiable to their PI insurer): ‘YES’ TO ANY of complaints and claims against their advice to clients, includ- • Remember, it’s human to make solicitors and, not surprisingly, ing the risks of litigation and the a mistake – that’s why you QUESTION many arose on conveyancing chances of success. They need to have insurance, files. A significant number related also make sure that their client is • Be reassured that many com- UNLESS YOU to outstanding undertakings to aware that they may be ordered plaints and claims can be CAN CLEARLY financial institutions and, in many to pay the defendant’s costs if the resolved quickly with the right cases, the solicitor was unable claim is lost. help, EVIDENCE to comply with the undertaking Also, given the courts’ recent • Contact your broker as soon given. Post-recession, the ‘breach willingness to accede to strike- as possible to notify the com- THAT YOU of undertaking’ complaints and out applications for delay, solici- plaint/circumstance/claim, HAVE claims are less frequent, but they tors should progress their litiga- • Gather together all papers still do occur. tion files efficiently. If there is and records relating to the IMPLEMENTED Complaints and claims arising a reason why the claim is not file, and make sure you keep from litigation files have been a being progressed (for example, them intact and available to THE RELEVANT constant throughout the reces- the solicitor has not been put your insurer, POLICY OR sion and in the period since. For in funds or he/she cannot get • Do not prejudice your insurer’s example, there are always claims proper instructions from the cli- position by making conces- CONTROL. BE from human error leading to a ent), there should be a proper sions or admissions without missed Statute of Limitations record of that – preferably in a the insurer’s authority, and VERY WARY OF period. letter to the client, setting out • Cooperate fully with the claims MULTI-PART However, solicitors’ insurers are the concerns and advising them handler or solicitor appointed also seeing claims for incorrect that the solicitor is not in a posi- by the insurer – they are on QUESTIONS, or inadequate litigation advice. tion to progress the case, which your side and will work to This tends to happen when a could ultimately lead to the claim achieve the best possible out- AS YOU MUST plaintiff loses his/her claim and being struck out. come. BE COMPLIANT alleges negligent advice. This is particularly relevant given the What to do Sinead Ryan is director of profes- WITH ALL current climate, where the courts There are a number of things sional indemnity and commercial are rejecting unmeritorious and/ solicitors should do if they litigation at DWF. ELEMENTS OF THE QUESTION 30 November 2019 ANALYSIS | HUMAN RIGHTS Law Society Gazette | gazette.ie

ROOM TO IMPROVE?

The Law Society’s Annual Human Rights Conference examined the human rights challenges in the international protection process as well as direct provision in Ireland – and the reforms that should be made. Michelle Lynch reports

MICHELLE LYNCH IS SECRETARY TO THE LAW SOCIETY’S HUMAN RIGHTS AND EQUALITY COMMITTEE

n 12 October, the 17th to abolish the system, this was Annual Human Rights problematic, as it would have to Conference examined be replaced with an alternative, theO challenges in the interna- and the current housing crisis tional protection process, as meant that there was a serious well as exploring opportunities shortage of accommodation. for change and future reform. It Dr McMahon noted that what OF THE TOP brought together lawyers, aca- was required was “a proper, real- demics, policymakers, and civil isable alternative system”. He FIVE REFUGEE- society bodies to hear how the outlined the major changes that HOSTING current system works, what pro- had improved direct provision, gress has been made, and how it which included a reduction in COUNTRIES, might be improved. the length of time people had to wait for decisions, the introduc- ONLY ONE IS AN Irish response sion in 2015, said that, while tion of the right to work, an EU COUNTRY – Former High Court judge Bryan direct provision “may not be increase in the weekly allow- McMahon, who chaired the perfect … it’s much better than ance, a complaints mechanism GERMANY working group on direct provi- it was”. While there were calls through the Ombudsman, and

(Front, l to r): Hilkka Becker (chairperson, International Protection Appeals Tribunal), Shane McCarthy (chair, Human Rights and Equality Committee), Ellie Kisyombe (founder, Our Table), Patrick Dorgan (president, Law Society), Ambassador David Donoghue (former permanent representative for Ireland to the UN), Dr Bryan McMahon (retired High Court judge), and Grainne O’Hara (director, Division of International Protection, UNHCR); (back, l to r): Sandra Moloney, Alma Clissmann, Gary Lee, Sinéad Lucey (all Human Rights and Equality Committee), Rachael Hession (Law Society Professional Training) and Michelle Lynch (secretary, Human Rights and Equality Committee) Law Society Gazette | gazette.ie ANALYSIS | HUMAN RIGHTS November 2019 31 ALL PICS: CIAN REDMOND

cooking facilities on an ad hoc basis for residents in non-State- owned centres. In referring to backlashes in rural Ireland, such as the recent protests in Oughterard, he emphasised the vital need for consultation with the local com- munity. He also indicated that the size of the accommodation centre should be proportionate to the size of village/town where it would be located, and a proper review of the local social infra- structure should be undertaken POLICYMAKERS before deciding where to locate centres. MUST SEE PEOPLE

International framework sentative of Ireland to the United as “the single most contentious AS INDIVIDUALS, One of the central negotiators Nations, gave a unique account issue” during negotiations was HEAR THEIR in two significant international of these processes. the detention of unaccompanied agreements (the Agenda for Sus- The New York Declaration was minors. In acknowledging that STORIES, AND tainable Development in 2015; adopted by all 193 UN member such agreements are not legally and the New York Declaration for states and became the basis for binding, he emphasised that they RESPOND WITH Refugees and Migrants, adopted in a future agreement, the Global were “politically binding, and MORALS AND 2016), Ambassador David Dono- Compact on Refugees, affirmed in would go so far as to say morally ghue, former permanent repre- 2018. An issue that he described binding”, and that governments EMPATHY TBOI_TheEmploymentBar_A4Advert_2019_AW.qxp_TBOI_EmploymentBarPoster_V 18/10/2019 11:44 Page 1

TBOI_TheEmploymentBar_A4Advert_2019_AW.qxp_TBOI_EmploymentBarPoster_V 18/10/2019 11:44 Page 1

EMPLOYMENT LAW EMPLOYMENT LAW CONFERENCE 2019 CONFERENCE 2019 Speakers: Clíona Kimber SC, Chairperson, Employment Bar Association – Welcome and Opening Remarks SMaprgeuaerkitee Broslg:er SC – Restraint of Trade Feichín McDonagh SC – Judicial Review and the Individual Contract of Employment Clíona Kimber SC, Chairperson, Employment Bar Association – Welcome and Opening Remarks Peter Ward SC – Injunctions Marguerite Bolger SC – Restraint of Trade Kevin Bell BL – WRC, Labour Court Rules, Miscellaneous Acts Feichín McDonagh SC – Judicial Review and the Individual Contract of Employment Sarah Daly BL – Investigations Peter Ward SC – Injunctions Lorna Lynch BL – Employer Insolvency Kevin Bell BL – WRC, Labour Court Rules, Miscellaneous Acts Cathy Smith BL – Disability and Reasonable Accommodation Sarah Daly BL – Investigations Lorna Lynch BL – Employer Insolvency CCathhya Simriethd B Lb–y D:isability and Reasonable Accommodation The Hon. Ms Justice Leonie Reynolds, Judge of the High Court CPathricaia iKrinegd, G ebneyra:l Secretary, Irish Congress of Trade Unions The Hon. Ms Justice Leonie Reynolds, Judge of the High Court Patricia King, General Secretary, Irish Congress of Trade Unions To register to attend, please visit our website at 1.30pm, Friday November 22, 2019 Tito link: ti.to/eba/annual-conference-2019

TAo TreTgEisNteDr tAoN atCteEn:d, please visit our website at 1.3T0phme A, Ftriduamy, NDoisvteilmlebrye rB 2u2il,d 2i0n1g9, 4 TCitPo Dlin kP:O ti.ItNo/TebSa/annual-conference-2019 Church Street, Dublin 7 The Atrium, Distillery Building, VAiTewT EthNeD fuAllN brCocEh:ure: www.employmentbar.ie Conference fee: €250 4 CPEDm aPilO: [email protected] Church Street, Dublin 7 View the full brochure: www.employmentbar.ie Conference fee: €250 Email: [email protected] TBOI_TheEmploymentBar_A4Advert_2019_AW.qxp_TBOI_EmploymentBarPoster_V 18/10/2019 11:44 Page 1

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Law Society Gazette | gazette.ie ANALYSIS?????????? | HUMAN | ?????????? RIGHTS Novemberr 2019 33

had to determine policy within the framework of these global documents.

Leaving no one behind Even more important than the number of people forcibly dis- placed in the world, is where they are located. Grainne O’Hara EMPLOYMENT LAW (director, Division of Interna- tional Protection, UNHCR) spoke of the “disconnect between media representation and the EMPLOYMENT LAW reality” of where asylum seekers and refugees are hosted, noting that, of the top five refugee-host- CONFERENCE 2019 ing countries, only one is an EU country – Germany. Further, she revealed that 80% of the world’s displaced people CONFERENCE 2019 are hosted in countries close to their country of origin, with Speakers: 57% of UNCHR refugees com- ing from three countries – Syria, Clíona Kimber SC, Chairperson, Employment Bar Association – Welcome and Opening Remarks Afghanistan and South Sudan. In SMaprgeuaerkitee Broslg:er SC – Restraint of Trade the situation where 37,000 peo- ple each day were forced to flee 80% OF THE Feichín McDonagh SC – Judicial Review and the Individual Contract of Employment Clíona Kimber SC, Chairperson, Employment Bar Association – Welcome and Opening Remarks their homes due to conflict and WORLD’S Peter Ward SC – Injunctions persecution – a figure that will Marguerite Bolger SC – Restraint of Trade likely continue to increase – she Kevin Bell BL – WRC, Labour Court Rules, Miscellaneous Acts DISPLACED Feichín McDonagh SC – Judicial Review and the Individual Contract of Employment said that “fewer and fewer coun- Sarah Daly BL – Investigations tries are offering resettlement”. PEOPLE ARE Peter Ward SC – Injunctions Lorna Lynch BL – Employer Insolvency In this regard, she noted the suc- HOSTED IN Kevin Bell BL – WRC, Labour Court Rules, Miscellaneous Acts cess of community sponsorship Cathy Smith BL – Disability and Reasonable Accommodation Sarah Daly BL – Investigations programmes, particularly Ire- COUNTRIES land’s recent international award Lorna Lynch BL – Employer Insolvency for its pilot model, proposing CLOSE TO THEIR Cathy Smith BL – Disability and Reasonable Accommodation that this might be a preferable COUNTRY OF Chaired by: alternative to large-scale accom- The Hon. Ms Justice Leonie Reynolds, Judge of the High Court modation centres. while a solution needed to be attempted suicide. She likened ORIGIN, WITH found, the current system could direct provision to “living in an CPathricaia iKrinegd, G ebneyra:l Secretary, Irish Congress of Trade Unions Harsh reality not simply be abolished, as it open prison, but you are not sure 57% OF UNCHR Activist Ellie Kisyombe – would leave thousands of asylum of the length of your sentence”. REFUGEES The Hon. Ms Justice Leonie Reynolds, Judge of the High Court founder of Our Table, a non- seekers homeless. Policymakers must see people Patricia King, General Secretary, Irish Congress of Trade Unions profit organisation that helps She emphasised the impor- as individuals, hear their stories, COMING refugees and asylum seekers tance of parents being able to and respond with morals and FROM THREE To register to attend, please visit our website at 1.30pm, Friday November 22, 2019 to gain skills and employment cook for their children, and how empathy, she urged. While there Tito link: ti.to/eba/annual-conference-2019 through the celebration of food so many grew up without the had been many changes, com- COUNTRIES and culture – shared the diffi- experience of sitting down at a munities had to be part of future cult experience of being a single table as a family. She told of how To register to attend, please visit our website at The Atrium, Distillery Building, solutions and, at the moment, – SYRIA, ATTENDANCE: 1.30pm, Friday November 22, 2019 mother and raising two children single mothers were forced to she stated that it was “private Tito link: ti.to/eba/annual-conference-2019 AFGHANISTAN 4 CPD POINTS Church Street, Dublin 7 in direct provision. Granted her turn to sex work to try to pro- companies controlling human residency last summer, she ech- vide for their families, and she lives”. Ultimately, asylum seek- AND SOUTH VAiTewT EthNeD fuAllN brCocEh:ure: www.employmentbar.ie The Atrium, Distillery Building, oed the remarks made by Dr had seen previously strong men ers wanted to be “treated like any Conference fee: €250 McMahon, acknowledging that driven to depression and even other human being”. SUDAN 4 CPEDm aPilO: [email protected] Church Street, Dublin 7 View the full brochure: www.employmentbar.ie Conference fee: €250 Email: [email protected] 34 November 2019 COVER STORY Law Society Gazette | gazette.ie

FALSE Witness Judicial decisions and LRC recommendations provide strong indications that the ramifications of failing in the role of expert witness will become increasingly severe. Paul Convery, Niamh McCabe and India Delaney prepare to cross-examine

PAUL CONVERY IS A PARTNER AND NIAMH MCCABE IS AN ASSOCIATE IN WILLIAM FRY’S LITIGATION AND DISPUTE RESOLUTION DEPARTMENT. INDIA DELANEY IS A UCD GRADUATE Law Society Gazette | gazette.ie COVER STORY November 2019 35

Witness PIC: SHUTTERSTOCK 36 November 2019 COVER STORY Law Society Gazette | gazette.ie

he evidence of ‘expert’ witnesses evidence was challenged but, ultimately, who are inexperienced, inexpert, it was held that the evidence was “not and/or easily led can lead to AT A GLANCE sufficient to conclude … that the testimony miscarriages of justice, as well n The evidence of an inexperienced, of the expert witnesses … was affected by the as unwelcome notoriety. If the inexpert, or easily led ‘expert’ exigencies of litigation”. duties of an expert are not carried witness can kill a case or lead to Adopting the test in the Ikarian Reefer out in the manner expected by the courts, miscarriages of justice case, the court held that it had not been the ramifications can be significant. Where n The duty to assist the court proved that the evidence was “anything evidence is wholly or partially rejected, the overrides any duty an expert might other than independent, objective and impact on a trial can be fatal. feel to the paying party unbiased”. A notable and, unfortunately, not n The Ikarian Reefer principles set out Other cases in Britain also highlight the infrequent example of the potentially serious the duties of an expert importance of the above guidelines, where a ramifications can be seen in a recent British n These principles have been failure to comply with them can result in the case, where an expert’s failings caused reflected in Irish judgments downfall of an expert’s evidence and possibly the collapse of a trial involving a multi- the claim. million pound carbon-credit fraud, and the In C (interim judgment on expert evidence), significant risk that prior trials might also receive negative attention in court, despite the court held, perhaps unsurprisingly, that be tainted. The expert’s lack of academic various judges’ efforts to highlight experts’ the expert testimony could not be given due qualification was discovered when he could obligations. weight where the experts involved had not not recall if he had passed any A-Levels and, In what are colloquially known as the read all of the relevant papers before writing in addition, admitted that he had never read Ikarian Reefer principles, the duties of an their reports. a book on the subject matter of the case. expert are described as follows: Similarly, in Van Oord UK Ltd and another He also accepted that he had kept • Evidence presented to the court should v Allseas UK Ltd, an expert’s evidence was sensitive material obtained from the police be the independent product of the expert, disregarded in full and deemed “entirely in a cupboard under his stairs, some of which uninfluenced as to form or content by the worthless” as there were no independent was destroyed. It was also shown that he had exigencies of litigation. factual checks carried out, and the assertions cut and pasted his witness statement from • Evidence should provide independent of the expert’s principal were repeated previous trials. The trial judge stated that assistance to the court by way of objective, without care. Ultimately, the evidence was the expert was “not an expert of suitable unbiased opinion with regard to matters deemed to have “made a mockery of the calibre. He had little or no understanding of within the expert’s expertise. oath”, and the expert was viewed as little the duties of an expert. He had received no • Evidence should state the assumptions more than a “mouthpiece” for the claimants. training and attended no courses. He has no or facts upon which the expert’s opinion In addition, in the recent Libor trials in academic qualifications. His work has never is based. In addition, the expert should Britain, the use of one expert by the Serious been peer-reviewed.” consider material facts that could detract Fraud Office was referred to as a “debacle”, from the concluded opinion. with Lord Justice Gross remarking: “It’s Reefer madness • Evidence should make it clear whether a not a matter to be downplayed when the Experts are expected to provide evidence particular issue falls outside of the expert’s Crown in a major prosecution calls a witness in order to assist the court in reaching an area of expertise. who is wholly out of his depth”. He also informed decision based on knowledge, • If the expert’s opinion is not properly queried: “How did it come about that he was expertise and experience. This is a duty researched as a result of insufficient data, instructed when he lacked expertise? We are addressed in this jurisdiction by order 39 of then this must be stated. very concerned as to how he can have been the Rules of the Superior Courts, which makes • If, after an exchange of reports, an expert instructed, the due diligence, and how it it clear that the duty to assist the court has a change of view on a material matter, came to light.” overrides any duty an expert might feel is such change must be communicated to the owed to a party paying their fee. This is also other side. Expertise an obligation that experts are required to • Where expert evidence refers to Whether or not a witness is an expert acknowledge in their reports. photographs, plans, calculations, etc, these will depend on their particular expertise, An expert should be able to stand by their must be provided to the opposite party qualifications and experience in the area. In evidence to such an extent that they can at the same time as the exchange of the Bailey v Commissioner of An Garda Siochána, truthfully say the same opinion would be reports. it was made clear that the opinions of given, even if they were acting for the other experts are only admissible in evidence on side. What they clearly shouldn’t do is act as The principles have been reflected in Irish the subject areas where they are expert. The a ‘hired gun’ with the aim of strengthening judgments, most recently in the 2019 burden of establishing expertise rests with the case of the instructing principal. Supreme Court case of O’Leary v Mercy the party calling the witness, and must be This issue, however, continues to University Hospital Cork Ltd, where expert shown before the witness gives evidence. Law Society Gazette | gazette.ie COVER STORY November 2019 37

AN EXPERT SHOULD BE ABLE TO STAND BY THEIR EVIDENCE TO SUCH AN EXTENT THAT THEY CAN TRUTHFULLY SAY THE SAME OPINION WOULD BE GIVEN, EVEN IF THEY WERE ACTING FOR THE OTHER SIDE. WHAT THEY CLEARLY SHOULDN’T DO IS ACT AS A ‘HIRED GUN’ WITH THE AIM OF STRENGTHENING THE CASE OF ITS INSTRUCTING PRINCIPAL PIC: SHUTTERSTOCK FOR PRINTING YOUR FOR PRINTING YOUR Book (paper or hardback) Book (paper or hardback) OR Magazine OR Magazine Contact TURNERS Printing Co. Ltd forContact a competitiveTURNERS price. Printing Co. Ltd SECRETS OF THE BALLOT BOX

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LAW SOCIETY GAZETTE • Vol 113 No 8 Irish elections tend to be dramatic and exciting, REALLY largely due to the LAW SOCIETY GAZETTE • Vol 113 No 3 LAW SOCIETY GAZETTE • Vol 113 No 3 useComingFuture of our shock of complexage proportional TumblingrepresentationCherry bomb down system, pretty WORKS wellSmallMoore’s is beautiful treat ‘PredictiveSECRETS analytics’ and OF THE‘Second BALLOTchance’ insolvency BOX The Gazette speaks to the uniqueLegalLegal educationeducation to Ireland. The system is alsoTheThe destructiondestruction characterized ofof thethe by numerous LawLaw SocietySociety supportsupport throughoutthroughouttheHOW further commodificationthetheTHE IRISH VOTINGSolicitors’Solicitors’solutions SYSTEM for BuildingsBuildings businesses andand servicesincomingservices addressaddress managing thethe partner needsneeds SECRETS OF referenda.lifetimelifetimeof the business ofof lawyerslawyers This of lawwork explores preciselythetheand Four Fourindividuals how CourtsCourts this inin 19221922 system works by of smallertop firm practices Arthur Cox

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Dublin Dispute Resolution Centre CONTACT US Distillery Building, 145-151 Church Street, Dublin 7, Ireland Tel: +353 (1) 817 5277 Email: [email protected] Law Society Gazette | gazette.ie COVER STORY November 2019 39

IN IRELAND, IMMUNITY IS STILL RECOGNISED. HOWEVER, THE COURTS CONTINUE TO ENCOURAGE EXPERTS TO COMPLY WITH THEIR DUTIES BY ALTERNATIVE MEANS

It was, however, held in Martin v Quinn The LRC also recommended abolishing (1980) that a witness giving evidence about expert immunity and replacing it with civil their qualifications is prima facie evidence of liability, limited to circumstances in which his or her qualification, unless rebutted. it was established that the expert had acted Although an expert is dealt with under with gross negligence in giving evidence or the Criminal Procedure Act 2010 as “a person preparing a report falling far short of the who appears to the court to possess the standard of care expected of such an expert. appropriate qualifications or experience about the matter to which the witness’s evidence relates”, no such civil definition is available. LOOK IT UP As the criminal definition is not overly Bear v Neighbour: ”I didn’t see nothin’’’ CASES: prescriptive, Irish and British case law n Bailey v Commissioner of An Garda provides some guidance as to our under- Siochána [2017] IECA 220 standing of the expertise required of an reports and given in court in Britain. n C (interim judgment on expert expert witness. In ascertaining whether a In Ireland, immunity is still recognised. evidence) [2018] EWFC B9) witness can be considered an expert, a good However, the courts continue to encourage n Galvin v Murray [2001] 1 IR 331 starting point is the basic set of questions experts to comply with their duties by n Jones v Kaney [2011] UKSC 13 of Russell LCJ in R v Silverlock (1894): alternative means. For example, in the recent n McFadden v Murdock [1867] IR 1 • Is he peritus [expert]? case of Waliszewski v McArthur and Company CL 211 • Is he skilled? Limited, Barton J stated that the failure n Martin v Quinn [1980] IR 244 • Has he adequate knowledge? of the expert witness to disclose relevant n National Justice Compania Naveria material was “reprehensible and is to be SA v Prudential Assurance Co Ltd Other judicial pronouncements also assist. deprecated”, and the court directed a copy of ‘Ikarian Reefer’) [1993] 2 Lloyd’s In Galvin v Murray (2001), Murphy J stated the judgment be forwarded to the Medical Rep 68 that “an expert may be defined as a person Council of Ireland. n O’Leary v Mercy University Hospital whose qualifications or expertise give an Cork Ltd [2019] IESC 48 added authority to opinions or statements Law reform n R v Sally Clarke [2003] EWCA Crim given or made by him within the area of Given the wide-reaching consequences that 1020 expertise”. can result from unsound expert evidence, a n R v Silverlock [1894] 2 QB 766 In McFadden v Murdock (1867), it was 2016 report of the Law Reform Commission n Van Oord UK Ltd and another v held that expert status can be achieved (LRC) recommended the following four Allseas UK Ltd [2015] EWHC 3074 through experience, such as a shopkeeper duties of expert witnesses be set out in n Waliszewski v McArthur and becoming an expert in the grocery business. legislation: Company Limited [2015] IEHC 264 Further, in the case of R v Sally Clarke • An expert has an overriding duty to the (2003), it was noted that evidence should court to provide independent, impartial LEGISLATION: not be allowed in court where the witness and honest evidence, n Criminal Procedure Act 2010 providing it was not adequately experienced • An expert has a duty to state the or qualified to do so. assumptions and facts upon which their LITERATURE: evidence is based – in addition, the expert n ‘Libor traders report UK Immunity must fully inform themselves of any fact prosecution expert witness to The British Supreme Court found, in 2011, that could detract from their evidence, police‘ (Reuters.com, 27 July 2017) that there was no justification for expert- • An expert must confine themselves to n Report on Consolidation and witness immunity from suit continuing, matters within their scope of expertise, Reform of Aspects of the Law of and it was abolished. As a result, experts and Evidence, Law Reform Commission can now be sued in contract and in tort • An expert must act with due care, skill (LRC 117-2016, ISSN: 1393-3132) for the evidence detailed within their and diligence. 40 November 2019 SHARE VALUATIONS Law Society Gazette | gazette.ie To market, to market...

There are many reasons for obtaining a valuation of the shares in a private company. But how do you go about valuing such shares when a share transfer or share sale is required? Nicola Corrigan and Gavin Phelan go to market

NICOLA CORRIGAN ACA CTA IS A TAX ASSOCIATE AND GAVIN PHELAN IS A TAX INTERN IN WILLIAM FRY

arious events, including shareholder buy- • Whether the company is highly leveraged, ins or buy-outs, acquisitions of successful • The forecast performance of the company over an start-ups by large investor companies, and appropriate time period, and the gifting of shares to family members (and • The jurisdictions the company is operating within. other estate planning) can make it necessary to obtain a valuation of the shares in a private Traditional valuation methods are not easily applied to many company. typical 21st century share-valuation scenarios. Take, for example, Share valuations have come under increased the valuation of an early-stage company in a loss-making scrutiny from the Revenue Commissioners in recent years, position, with intangible assets such as intellectual property, and third-party valuation advice is being sought for the but without any significant tangible assets; or the valuation of a purposes of supporting the values that are being attributed to company operating in the technology sector – a sector in which shares when share transfers happen. companies either do incredibly well or go quickly bankrupt with Revenue acknowledges that valuation is not an exact unreliable forecast information. science, but it is not to be inferred that any value could be The increased complexity in valuing such companies defended as the market value of an asset. demonstrates the importance of engaging a valuation specialist to Documentation of the facts and assumptions supporting the produce an objective and robust valuation report where a share selection and application of appropriate transfer event is being considered. valuation methods is paramount. Various criteria should be considered by AT A GLANCE Tax obligations the valuer with regard to the selection of n Valuation of the shares in a private In the context of this article, it is appropriate methods, including: company can be required for many informative to consider at a high level • The nature of the company being reasons the Irish capital gains tax (CGT) and valued, n Irish tax considerations – calculation Irish stamp-duty position with regard • The nuances of the industry within of market value to the calculation of market value. which the company operates, n Valuation methods – which are best? Share transactions can give rise to • The life-cycle stage of the company, n Discounts for minority shareholdings various tax obligations, depending on • Whether the company is profitable, n Contingent/unascertainable the circumstances of the transaction, • The size of the shareholding being consideration but CGT and stamp duty arise most valued, frequently. Law Society Gazette | gazette.ie SHARE VALUATIONS November 2019 41 PIC: SHUTTERSTOCK

MAINTAINABLE EARNINGS GENERALLY REFER TO NET-OF-TAX PROFITS, BUT FOR SMALL- AND MEDIUM-SIZED COMPANIES, IT IS COMMON FOR MAINTAINABLE EARNINGS TO BE CALCULATED ON A PRE-TAX BASIS

Irish CGT legislation does not prescribe Consolidation Act 2003 (CATCA). Section 19 The price cannot be reduced by reason of the basis of valuation. The valuation rules provides as follows: “The commissioners the whole of the property being placed on the for Irish CGT purposes are set out in shall ascertain the value of property the market at the same time. It must be assumed sections 547-549 of the Taxes Consolidation subject of an instrument chargeable with that the purchaser has all information Act 1997 (TCA). Section 548 provides that stamp duty in the same manner, subject to available that a prudent purchaser might the market value in relation to any assets any necessary modification, as is provided reasonably require. means the price that those assets might for in section 26 of the Capital Acquisitions On the basis that general market-value reasonably be expected to fetch on a sale in Tax Consolidation Act 2003.” principles apply for Irish CGT and Irish the open market. Section 26 CATCA provides that, when stamp-duty purposes, the valuation obtained The valuation rules for Irish stamp duty valuing shares in an unquoted company, for the purposes of these taxes should be the purposes are contained in section 19 of the shares passing must be valued on the same. the Stamp Duty Consolidation Act 1999 and basis of a hypothetical sale in a hypothetical A detailed review of market-value concepts import the valuation method contained in open market, between a hypothetical willing in respect of all Irish tax heads is beyond the section 26 of the Capital Acquisitions Tax vendor and a hypothetical willing purchaser. scope of this article, but it is worth noting 42 November 2019 SHARE VALUATIONS Law Society Gazette | gazette.ie

that section 27 CATCA 2003 prescribes strict • Industry sector, are likely to arise on an ongoing basis. rules for the purposes of valuing certain • Market position, It is also worth noting that maintainable shares in private companies. • Geography, earnings generally refer to net-of-tax Essentially, the section outlines that, where • Stage in life cycle of the business, profits, as adjusted for the items that have a successor or donee, together with his/her • Growth rate, just been mentioned, but for small- and relatives, nominees and trustees, control the • Size, medium-sized companies, it is common for company, the value of the shares received • Profitability, and maintainable earnings to be calculated on a by that donee/successor must be valued • Capital structure. pre-tax basis. as a proportionate part of the value of the The price/earnings (PE) ratio is the most company as a whole. Where prior sales/offers information is common multiple used for the purposes of This section is particularly controversial available, the background circumstances applying the earnings-based approach. At in light of the fact that the principal pertaining to such previous offer/share sale a basic level, the valuer should undertake consequence is to disallow discounts for will be important in order to determine the market research to identify a quoted minority shareholdings when valuing shares significance of that information in the context company/companies with similar underlying in a controlled private company. Accordingly, of the current valuation being undertaken characteristics to the company being valued. the shares being valued may be worth less – for example, whether a minority/majority When a suitable quoted company from a commercial perspective than the value holding was being sold at the time, what class has been selected, the normal practice imposed from a CAT perspective. of shares were being sold, what rights were is to multiply the price earnings ratio attached to the shares being sold, etc. appropriate to the quoted company (or Valuation approaches average price earnings ratio applicable to There are a number of generally accepted Earnings-based approach the comparable companies), less a discount approaches to ascertaining the fair market In general, an earnings-based approach to compensate for the lack of marketability value of the shares of a private company. is most appropriate for the valuation of a of the shares of a private company, by The following valuation approaches are majority shareholding in a company that the future maintainable earnings of the accepted by most tax administrations, and are is a going concern (that is, a business that company being valued. consistent with generally accepted accounting is expected to continue to operate for the Des Peelo, a well-known author in the principles in most jurisdictions. foreseeable future). area of share valuations in Ireland, suggests The earnings-based method is recognised the following PE multiples as a rough guide Prior sales/offers by the Irish tax authorities as the method for valuing Irish companies in his book, The One of the most defensible valuation normally used to value trading and Valuation of Businesses and Shares: techniques available for the purposes of manufacturing companies. This approach valuing shares in a private company is the involves identifying the ‘maintainable MAINTAINABLE EARNINGS identification of recent arm’s-length sales earnings’ of the company, and the of shares or offers to purchase shares in maintainable earnings are then capitalised Maintainable earnings of €500k PE multiple: five or less (a) the company being valued or (b) in a using an appropriate multiple in order to comparable company. In this regard, it is produce a valuation. Maintainable earnings between important to bear in mind that Revenue is The most recent set of audited accounts is €500k and €2m unlikely to accept a valuation that is lower a common starting point for the calculation PE multiple: between five and eight of the maintainable-earnings figure, but than the value that a willing buyer has Maintainable earnings in excess of €2m demonstrated they will pay for the same where profits are erratic, it may be more PE multiple: between eight and twelve or similar shares in the absence of representative to use a weighted average of, significant evidence of different/updated say, the past five years of audited results. circumstances. In order to calculate a representative and Income-based approach In practice, previous arm’s-length normalised maintainable-earnings figure, The income approach is predicated on the share sales are likely to be uncommon the valuer will often use earnings before idea that the value of the equity of a company in the context of an unquoted company. interest, tax, depreciation and amortisation is the present value of the future distributable Additionally, information may not be (EBITDA) as a starting point. The EBITDA reserves of that company. The discounted readily available concerning sales of shares is then adjusted to remove the effect of non- cash-flow (DCF) method is the most popular in comparable unquoted companies, or it recurring items, and the valuer must consider application of the income approach. may not be possible to identify appropriate whether each income stream is expected to The DCF method involves estimating the comparable companies. continue into the future. amount and timing of the future cash flows At a high level, the following characteristics Similarly, costs should be reviewed to of the company over an appropriate period. are often considered when establishing establish whether they are expected to be An appropriate discount rate must then be whether one company is comparable to incurred at the same level in the future, and applied to the cash flows that are identified, another company: whether there are any additional costs that reflecting a rate of return on investments Law Society Gazette | gazette.ie SHARE VALUATIONS November 2019 43

IT IS WORTH NOTING THAT SECTION 27 CATCA 2003 PRESCRIBES STRICT RULES FOR THE PURPOSES OF VALUING CERTAIN SHARES IN PRIVATE COMPANIES

appropriate to (a) the company being valued reflect the fact that the shareholding does table contained in a book called Valuation of and (b) the relevant market conditions. The not represent a majority (and, therefore, Shares in Unlisted Companies for Tax Purposes, total of the discounted cash flows is the value does not enable the owner to control the by Denis Cremins. of the company. company). In general, the following table, In this regard, the TAC acknowledged The DCF method should involve a rigorous as identified by Peelo (p64 of the aforemen- that these tables represent “an established review of projected performance, and is often tioned book), represents the appropriate range of discounts for lack of control and preferred as a valuation method where credible discount rates to apply when valuing marketability in minority shareholdings”. financial data is available. It is often the case minority shareholdings: This is significant because, while that management teams are not in a position determinations by the TAC are not binding to forecast with any degree of reliability, due SHAREHOLDING on other courts, they have considerable to the unpredictable nature of the industry in Single percentage shareholdings persuasive effect. which they operate (for example, in the case of Discount: up to 90% Another issue, related to company a technology company). share sales (which generally requires a In such circumstances, the DCF method is 25% or less valuation exercise to be undertaken), is the Discount: 50%-70% unlikely to be appropriate. In particular, the existence of contingent or unascertainable calculation of some of the components of the 25% plus one share or higher consideration in the form of an earn-out. DCF calculation (for example, the ‘weighted Discount: 30%-40% We will address this topic in a follow-up average cost of capital’, if applied as the 50% article. discount factor) can appear mathematically Discount: 20%-30% complex, which may provide unmerited comfort with regard to the accuracy of the 50% plus one share or higher Discount: 10-15% valuation. As such, it is important to bear in LOOK IT UP mind that the valuation obtained using this 75% or higher CASES: technique is only as reliable as the information No discount, but sometimes n Tax Appeals Commission case 5% if less than 80%. used to calculate it. 12TACD2017

Asset-based approach However, there are certain circumstances LEGISLATION: The asset-based method involves adjusting where the valuer must exercise judgement n Capital Acquisitions Tax all assets and liabilities (including off balance- as to the appropriate discount to apply Consolidation Act 2003 sheet, intangible, and contingent assets and in respect of a minority shareholding. n Stamp Duty Consolidation Act liabilities) to their fair market, current values. For example, a minority shareholding 1999 This method is not normally satisfactory may be part of a possible combined n Taxes Consolidation Act 1997 when applied in isolation in the context of a majority shareholding with a spread of company that is a going concern. However, 40%:40%:20%. Other factors that may LITERATURE: in our experience, this method can provide increase or decrease the discount include n Denis Cremins, Valuation of Shares indicative valuations in the following circumstances where there are additional in Unlisted Companies for Tax situations: rights attaching to the shares. Purposes, published by the Irish • Companies operating in capital intensive Taxation Institute (2006) industries (for example, real estate Established discounts n Des Peelo, The Valuation of companies), In a recent determination (specifically in Businesses and Shares (2nd edition), • No earnings history, and paragraph 42, 12TACD2017), the Tax published by Chartered Accountants • No consistent, predictable customer base. Appeals Commissioner (TAC) outlined how Ireland (2016) he was persuaded by the coherent analysis n Valuation of Unquoted Shares – Minority shareholdings put forward by the expert witness on behalf Capital Acquisitions Tax Part 21 In most cases where a minority shareholder of the respondent in selecting an appropriate (Revenue Commissioners, November wishes to sell their shareholding in a minority shareholding discount, by reference 2018) company, a discount will be applied to to the table listed above and another similar 44 November 2019 IN-HOUSE Law Society Gazette | gazette.ie Too many hats? Should in-house solicitors take on the role of their organisation’s data protection officer, given the potential for a conflict of interest between that role and their duties as in-house counsel? Tanya Moeller digs through the data

TANYA MOELLER IS AN ASSOCIATE SOLICITOR AT LK SHIELDS SOLICITORS

as the GDPR become old news? While some to be a full-time officer, but may carry out “other tasks and contributors in the public space (falsely) duties” as well, as long as these “do not result in a conflict of equated it with ‘Y2K’, experienced interest”. privacy practitioners knew that, unlike the Millennium Bug, this was a definite event, Conflicting roles? a permanent legislative innovation. Primarily, interpretations of this legal provision have focused Moreover, regulatory actions – such as fines – take on how a leadership role in an organisation might fetter their time to gain traction. The GDPR’s first ‘soft’ year of the independence of the DPO. For example, the Article 29 being effective is not an indication of how sharp its teeth will Working Party argued that this restricted a DPO from also ultimately be as it matures. taking decisions as to the processing of personal data. Equally, Now that the initial hype has passed, a Bavarian court ruled that an IT we may well reach the pivotal moment manager is conflicted when assuming when enforcement truly begins. In the role of DPO on a part-time basis. Britain, for example, the Information AT A GLANCE As recently as May 2019, the Commissioner’s Office made n DPOs could be conflicted by the tasks Belgian supervisory authority held headlines in July 2019 with its intent and duties of an in-house counsel – that, under article 38(6), the DPO to fine British Airways and Marriott the latter is a legal professional and may not delete personal data. Instead, International Stg £183 million and Stg an officer of the court, and the role any decisions regarding processing £99 million, respectively, for breaches entails certain legal work, as well as his has to be taken by the controller (in of data protection law. or her duties to the client/employer other words, another person in the It pays to remain alert and, n For example, an in-house counsel organisation). primarily, the data protection officer may be conflicted if, as DPO, they This approach is logical, given (DPO) will have to drive against uncovered facts that contradicted the that people in positions such as GDPR fatigue inside an organisation. instructions of an organisation IT management would determine The GDPR acknowledges, at article n Only when an in-house counsel the purpose, extent, and aspects of 38(6), that the DPO does not need is satisfied that conflicts can be processing personal data, but would managed within their organisation be conflicted if they were also the DPO. Similar types of conflict may The author wishes to thank Jeanne Kelly and should they seriously contemplate Peter Bolger (partners) for their input to the taking on the DPO mantle also arise, for example, if the head article of human resources, the head of Law Society Gazette | gazette.ie ??????????IN-HOUSE | ?????????? November 2019 45 PIC: SHUTTERSTOCK

THE DPO MUST ‘LOOK UNDER THE CARPET’, GO DOWN TO THE CELLAR, AND RUMMAGE IN THE DUSTY CABINET

marketing, or the head of customer services court, and the role entails certain legal work, It is worth considering whether the duties were to act as DPO. as well as his or her duties to the client (the of the practising solicitor may be extraneous By contrast, a solicitor is not conflicted employer). duties, from which, according to the in quite the same manner. In-house counsel Bavarian court, the DPO should be free. provide legal advice to the organisations they Freedom to act Secondly, and possibly more importantly work for. As such, they are well-acquainted By contrast, the DPO does not have to be for our legal professional colleagues, the with the challenge of retaining independence a lawyer, and owes ‘only’ the common law practising solicitor could be conflicted by in their work. So, how could a conflict of duty to perform the role in a professional the tasks and duties of the DPO. Article interest arise between the tasks and duties of manner and in accordance with the law. 38(3) of the GDPR requires the controller a DPO and an in-house counsel? Further, he or she may need a set of non- and processor to ensure that the DPO does Such conflicts become apparent when legal skills. According to the Data Protection “not receive any instructions regarding the examining each role in greater detail. Firstly, Commission, these include, for example, an exercise of those tasks” outlined in article the DPO could be conflicted by the tasks understanding of information technologies 39 of the GDPR. This legal provision must and duties of an in-house counsel. The latter and data security, as well as an expert level of be read together with article 39(1)(b), which is a legal professional and an officer of the knowledge in certain specific IT functions. requires the DPO to “monitor compliance” ACCEPTING LATE DIPLOMA CENTRE APPLICATIONS

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All lectures are webcast, allowing participants to catch up on course work at a time suitable to their own needs. Please note that the Law Society of Ireland’s Diploma Centre reserves the right to change the courses that may be offered and course prices may be subject to change. 11_19

Diploma Centre full page Gazette ad November 2019.indd 1 23/10/2019 09:36 Law Society Gazette | gazette.ie IN-HOUSE November 2019 47

THE DPO IS A COLLECTOR AND EVALUATOR OF FACTS, ON THE BASIS OF WHICH AN ASSESSMENT CONCERNING THE ORGANISATION’S LEVELS OF COMPLIANCE CAN BE MADE

and carry out “related audits”. Arguably, the By contrast, the DPO would have to unable to identify and cater for these? duty to audit poses the biggest challenge to audit how the search was carried out by Only when an in-house counsel is satisfied fulfilling both roles on a part-time basis. the company at system level, and make that these conflicts can be managed within By carrying out audits, the DPO is a recommendations as to which type of further their organisation should they seriously collector and evaluator of facts, on the basis and additional searches might be necessary contemplate taking on the DPO mantle. of which an assessment concerning the or desirable. It may be useful to take a step back and organisation’s levels of compliance can be review your current set-up. Do not feel made – and it is not up to the organisation to Switching hats alone: article 38(6) explicitly places the instruct the DPO as to these facts. Due to the DPO role being a sui generis one, obligation on the controller or processor any audit reports would not ordinarily enjoy (and not on the individual) to prevent ACCEPTING Finding trouble the protection of legal privilege. This might, a conflict of interest. As such, it is not LATE For example, an organisation may operate in turn, force the DPO to become a witness just a matter of professional ethics and APPLICATIONS on the basis that personal data is deleted. in a court case involving his organisation, if conscientious behaviour on the part of the DIPLOMA CENTRE It is the duty of the DPO to question and compelled to produce the report in evidence. in-house counsel and the DPO to wear both test this assertion. The DPO must check Such a situation would pose difficulties for hats responsibly. 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Such instructions may be taking instructions and giving advice as an Certificate in Immigration Law and Practice 07 November 2019 €1,550 challenged if not credible, but a practising in-house counsel – which might be legally LEGISLATION: Certificate in Strategic Leadership for the In-House Lawyer 17 January 2020 €1,550 solicitor would never have to audit the privileged – and when the individual was n Data Protection Acts 1988-2018 factual instructions from a client on his or acting as a DPO in the performance of LLM in Experiential Learning and Teaching 13 January 2020 €5,400 n General Data Protection Regulation her own initiative. To put it dramatically, a these duties. (2016/679) LLM Employment Law in Practice 25 January 2020 €3,400 solicitor would never have to check an alibi Considering the possible pitfalls, great Diploma in Aviation Leasing and Finance 30 January 2020 €2,800 for truthfulness or discover a true motive. practical care needs to be taken to spot those LITERATURE: As a result, the in-house counsel may be situations where conflicts may arise. The n Article 29 Working Party, Guidelines Certificate in Company Secretarial Law and Practice 04 February 2020 €1,550 conflicted if, as DPO, they uncovered facts question is: how do you prepare in advance? on Data Protection Officers [16/EN/ that contradicted the instructions of an Do you build yourself a play book? Do you WP243 rev.01] organisation. For example, an organisation create a manual that describes your own n Bayerisches Landesamt für MORE COURSES FOR SPRING 2020 WILL BE ANNOUNCED SOON might instruct an in-house counsel that a role? Can you prove to the regulator that Datenschutzaufsicht press release batch of documents constituted all of the you have considered your own methodology (German only) material that had to be provided to a data of recognising and dealing with conflicts? n Data Protection Commission, Annual CONTACT DETAILS subject on foot of a subject access request, Can you prove your own alertness? Can Report (25 May - 31 December e: [email protected] t: 01 672 4802 w: www.lawsociety.ie/diplomacentre and prima facie, this instruction could form you prove that a reported lack of conflict 2018) the basis of subsequent legal advice. situations is not an indication that you were All lectures are webcast, allowing participants to catch up on course work at a time suitable to their own needs. Please note that the Law Society of Ireland’s Diploma Centre reserves the right to change the courses that may be offered and course prices may be subject to change. 11_19

Diploma Centre full page Gazette ad November 2019.indd 1 23/10/2019 09:36 48 November 2019 PROBATE Law Society Gazette | gazette.ie Giving up the ghost

Reliance on family testimony – without independent verification – to establish information about the devolution of an estate is a path that can lead to errors and omissions. ‘Who you gonna call?’ asks Danny Curran

DANNY CURRAN FOUNDED FINDERS INTERNATIONAL IN 1997 AND THE COMPANY NOW HAS OFFICES IN DUBLIN, LONDON AND EDINBURGH

n Ireland, perhaps more than in most countries, traditional proof of birth certificates showing their parents’ PIC: SHUTTERSTOCK we know our family – or at least we think we names, but using DNA evidence, facial-recognition reports, do. Numerous cases of intestacy are being scrawled notes from orphanages and, recently, we experienced, wrongly distributed every year through failure first-hand, a case where we assisted our client in obtaining an to independently check and verify who the exhumation order, as we were convinced by his story that he next of kin to the deceased really are and, as was the deceased’s son, but had no proof. a trusting nation, we often take the word of family members We had to wait for the summer, as apparently exhumation on this point. in inclement weather can cause some However, these days, while we are serious issues from land slippage and assiduously checking the identities of for DNA sampling, but the result clients and permanently on the lookout AT A GLANCE came back that our client is “53 for fraud and money-laundering, we n Checking the entitlements to, and million times more likely to be the are still routinely handing out shares of distribution of, estates are complex deceased’s son than not”. Recovery sometimes extremely high-value estates tasks that should be handled as of the estate – of nearly €1 million in to (alleged) next of kin because they professionally as all other aspects of a value – is currently underway. tell us they are “the only next of kin” or solicitors’ work Other claims arise from the that “nobody else is entitled to share”. n Numerous cases of intestacy are branches or members of families being wrongly distributed every year who emigrated, and the known Bring up the bodies through failure to independently family have forgotten (or deliberately My firm has seen thousands of check and verify who the next of kin ‘forgotten’ perhaps) or not considered avoidable errors in distribution in the to the deceased really are that these persons may have a claim last 21 years; the consequences are n The consequences of errors in to a share of the estate, and so have complicated and far-reaching – and estate distribution are complicated not declared this information to the incredibly straightforward to avoid. and far-reaching – but incredibly solicitor. Ireland and emigration are We have seen undocumented next straightforward to avoid two words that often are heard in the of kin coming forward, without the same sentence. The estimated ‘real’ Law Society Gazette | gazette.ie PROBATE November 2019 49 PIC: SHUTTERSTOCK

EXHUMATION IN INCLEMENT WEATHER CAN CAUSE SOME SERIOUS ISSUES FROM LAND SLIPPAGE AND FOR DNA SAMPLING, BUT THE RESULT CAME BACK THAT OUR CLIENT IS ‘53 MILLION TIMES MORE LIKELY TO BE THE DECEASED’S SON THAN NOT’

population of Irish descendants in the US (for a modest fee) by a professional firm professional firms is considered a vital role, alone is over 70 million. of probate genealogists should be carried on a par with the legal profession, and often Finally, we have the problems caused by out in order to either verify their work or an essential part of the estate administration the ‘family historian’ who, with all good identify grey areas of the family tree to be process – so why is it in Ireland that we intentions, enjoys looking at the family tree. investigated. seem to find it harder to place the probate However, their information must not be In France and Germany, probate research genealogists’ role fairly and squarely in the relied upon, and a simple check of their work and verification of intestate estates using estate administration process? 50 November 2019 PROBATE Law Society Gazette | gazette.ie

IT SEEMS THAT THE LADY IN QUESTION HAD SIMPLY DISOWNED HER NEPHEW MANY YEARS EARLIER AND DIDN’T RECOGNISE HIM AS PART OF HER FAMILY

The fact that an industry is unregulated office address in a large city. This is not he was one of the gentlest and kindest is not necessarily a problem. We have unique to the world of probate research, middle-aged men you could imagine. In enquired several times about various of course. this case, half the estate rightly passed to Government initiatives to see if certain the nephew we had traced. bodies would include the probate-research The mirror and the light I have simply lost count of the number of industry in their regulatory regime, but, as The reliance on family testimony, without children, siblings, and half-blood siblings with many other industries with a relatively independent verification, to establish that have been overlooked or forgotten by low combined turnover, the Government is information about the devolution of an clients when referring cases to us. It’s not reluctant to get involved. estate is clearly a path that leads to errors always deliberate, I should add; families do So, we are left with self-regulation and, and omissions. There is still a degree of lose touch, large families forget how many in many cases, this can be very useful as a alarming naivety in this practice, which we relatives they have, children are born out guide to instructing a firm. However, self- see happening frequently. of wedlock and to single parents, and legal regulation and memberships of associations I recall an intestate estate of around adoption has allowed the adoptive family to also come with caveats and conditions. €400,000 I worked on many years ago, legally inherit. Looking at the positive side, any firm where the solicitor wanted a ‘simple that subjects itself to any form of third- verification’ that his client was the sole A change of climate party scrutiny or self-regulation must heir to the estate. The client was an elderly I have been emphasising and endlessly feel a degree of confidence that it is lady who nobody had any reason to doubt stressing the importance of a ‘comfort’ ‘doing the right thing’, and my own firm when she claimed to be her late brother’s policy against missing or unknown has numerous forms of compliance that sole surviving next of kin. However, in beneficiary claims for many years. hopefully will ease the minds of instructing yet another extraordinary tale (we have A report from a recognised professional solicitors and members of the public alike many), it seems that the lady in question firm of probate researchers is required, – the latter, remember, must feel reassured had simply disowned her nephew many as insurance companies may not accept that the probate-research firm are genuine years earlier and didn’t recognise him as anything else as evidence. Using a and not operating a complex scam. part of her family. His ‘crime’ in her eyes recognised firm will often mean that an Word of mouth and reputation are always was to drop out of society, grow a beard to insurance policy is instantly approved, good starting points, but make sure you are his waist, and wander around his housing saving many hours of practitioners’ time dealing with a professional company. estate shouting and swearing at everyone having to get the required evidence Firms can appear to list ‘offices’ around (‘bringing shame on the family’). In fact, together to satisfy the insurance company, the world just by placing keywords on their once we had identified and located him, or shopping around to find the right terms website –‘Paris, Rome, Athens, New York’ – it was established he had, for many years, within the policy at the right cost. and can of course use an impressive serviced suffered from a mental illness. When found, Of course, the basic professional indemnity insurance is a must, and things may go wrong from time to time – that’s life – but the important thing is to be FOCAL POINT covered. There are four basic fee models available A LARGER FAMILY ALMOST OVERLOOKED from most professional probate-research A Dublin solicitor referred an estate of aunts and uncles had married and had firms, and all are perfectly acceptable. €350k to us for checking, pre-distribution. children. Therefore, there were 26 Choice is imperative in order to cover a Their client said that they had two siblings beneficiaries rather than the three that had variety of situations. and that their uncles and aunts had either been mentioned initially. Again, using an established, reliable, and never married, or had married but had no When quizzed about this, the client said trustworthy company is probably more children. that the other family had not visited the important than the charging method. It turned out that the client had nine deceased in the nursing home and, as a The four main options are: siblings rather than two, and all of their result, should not inherit. • Contingency fees (where a beneficiary signs a percentage-based agreement with Law Society Gazette | gazette.ie PROBATE November 2019 51 PIC: SHUTTERSTOCK

Giving up the goats

the probate-research firm), • An estate/trust contingency fee, where the executor agrees a percentage- FOCAL POINT based fee from a named beneficiary’s FAMILY NOT RELATED IN THE WAY THEY THOUGHT entitlement, The client visited a solicitor in Kerry with Their father was, in fact, the son of • A budget fee paid by the estate, and a view to becoming administrator for her the eldest sibling to the deceased; a • A fixed fee paid by the estate. “uncle’s estate”, but when we gathered the daughter, who had in turn been reared as relevant birth, death and marriage records, the youngest child of the grandmother’s Contingency fees are the most popular, it turned out that the deceased was her family. as they are seen as fairer in many grand-uncle and not her uncle. The solicitor had to revert to his client circumstances, being payable only on a The client and her siblings thought that and explain that she could no longer be successful distribution, and only from shares their father was the deceased’s brother, but administrator and, in fact, she would not be due to unknown heirs (existing clients pay he was, in fact, his nephew. entitled at all under Irish intestacy law. nothing); but an agreed budget or a fixed fee at the expense of the estate may be more appropriate, depending on circumstances. Contingency fees are often the only estate. If a solicitor has no instructions, they that should be handled as professionally as option when working on an estate where cannot agree the fee based on the possibility all other aspects of a solicitors’ work. there are no known next of kin at all, as they may receive instructions once next of there is nobody authorised to pay a research kin are found. Finders International can be contacted fee or make advance arrangements about Remember: checking the entitlements to, on +353 (0) 1 567 6940 or via www. the probate-research firm’s fee from the and distribution of, estates are complex tasks findersinternational.ie. 52 November 2019 PROPERTY LAW Law Society Gazette | gazette.ie Muddy waters Apartments, owners’ management companies, and how they interact with the law is an area that has been fraught with difficulties. Patricia Murphy and David Rouse deliver a timely review of the lay of the land

PATRICIA MURPHY IS A SENIOR EXECUTIVE SOLICITOR WITH THE COUNTY SOLICITOR’S OFFICE OF CORK COUNTY COUNCIL. DAVID ROUSE FCA IS AN ADVISOR WITH THE HOUSING AGENCY

partment developments and managed estates The act enables apartment owners to take control of form an expanding part of Ireland’s stock common areas and the management of a development, for the of residential real estate. In 2016, there benefit of all residents, through the vehicle of the OMC. The were approximately 205,000 occupied OMC, usually a body corporate, looks after shared services, apartments in the country. With the such as cleaning, lighting, landscaping, waste management recovery in residential construction, the and insurance. Each unit owner, upon closing their sale, number of planning applications automatically becomes a member of the OMC. for apartments is rising. Compact urban growth and increased The act primarily covers four key areas: residential densities are key planks of Government policy, in • Conditions and obligations relating to the compulsory the context of a growing population and transfer of the common areas from decarbonisation. the developer to the OMC, • Obligations of the developer upon Feel like going home AT A GLANCE completion of the development stage, The Multi-Unit Developments (MUD) n The MUD Act was intended to be • New remedial mechanisms for Act 2011 introduced a limited statutory a reforming piece of legislation, to dealing with disputes, and regime for the governance of owners’ deliver improved protection and • New rules, rights and obligations of management companies (OMCs). dispute resolution OMCs in relation to directorships and The MUD Act deals with the transfer n Practitioners should be cognisant of voting rights; reporting and infor- of estate common areas, setting of the framework in which OMCs operate, mation; the calculation, apportion- service charges, and related matters in particular the interactions between ment and recovery of service charges; for managed estates. Running to the MUD Act and the Companies Act the provision of a sinking fund; and 34 sections, it was formulated to n With the expansion in the number other related matters. accommodate the unique challenges, of apartments and managed rights and responsibilities that come developments throughout the country, Under section 3, where units have with home ownership in a MUD. further maturing of the law affecting not yet been sold, a developer may not the sector may be expected transfer an interest in a residential The views expressed are those of the authors unit unless: Law Society Gazette | gazette.ie PROPERTY LAW November 2019 53 PIC: GAZETTE STUDIO

THE COMMON AREA OWNERSHIP IN ALL THEN-EXISTING, PARTIALLY AND SUBSTANTIALLY SOLD DEVELOPMENTS SHOULD, BY NOW, HAVE BEEN TRANSFERRED. IN PRACTICE, THIS TRANSFER HAS OFTEN NOT OCCURRED

• The OMC has been established by the • Certification from an appropriately Fire Safety Certificate, developer at the developer’s expense, qualified person has been delivered • A contract has been entered into between • Ownership of the common areas has been confirming the MUD has been the OMC and the developer outlining the transferred to the OMC, constructed in compliance with the obligations of each party, and 54 November 2019 PROPERTY LAW Law Society Gazette | gazette.ie

• An independent legal representative has complete. Of course, given the financial stock transfer forms and director approvals been appointed (at the developer’s expense) climate of recent years, many instances arose of transfers; however, a register of members to advise the OMC. where MUDs were left unfinished. Attempts must be kept. have been made to utilise provisions of the One vote of equal value is assigned to Key to the highway MUD Act to compel liquidators to complete each unit. Provision is also made for voting Under section 4, developers were required unfinished developments. However, in the rights in mixed use developments – that to transfer ownership of the common recent case of Re Lance Homes Ltd, the High is, estates with residential and commercial areas in existing MUDs to the OMC Court (Baker J) held that the MUD Act units. The governance of mixed-use schemes within six months of the commencement did not, of itself, impose an obligation on a complies with the act where there is a “fair of that section – that is, by 30 September liquidator to take positive steps to carry out and equitable apportionment of the costs 2011. Accordingly, the common area works of construction and development. and expenses”, and where voting rights are ownership in all then-existing, partially and The court further held that the obligations “apportioned in a manner which is fair and substantially sold developments should, by to complete a development in accordance equitable”. now, have been transferred. In practice, this with planning permission and under the While the act offers stronger transfer has often not occurred. Developer building regulations are enforceable as a arrangements, terms, and greater rights and insolvency aside, delays can be attributed matter of statute by virtue of section 24 of the protections for homeowners in MUDs, it also to the absence of effective sanction. The MUD Act; however, like any action in specific imposes additional obligations on directors of Conveyancing Committee of the Law performance, it may be one that is enforceable OMCs, over and above their responsibilities Society advised in a practice note in June only as a claim in damages, and may not give in company law. Requirements are introduced 2013 that the failure to transfer common rise to mandatory orders being made. in relation to the holding of AGMs, and the areas in a pre-2011 development does not determination and agreement of budgets, constitute a ‘blot’ on the title at the date of My home is in the delta service charges, and sinking funds. the certificate of title. On the sale of a residential unit in a MUD, Where a development is unfinished, membership of the OMC transfers to a You shook me a transfer of the common areas does not purchaser automatically. The MUD Act The act stipulates that every member of relieve the developer of its obligations to waives requirements in relation to formal an OMC must pay service charges. The developer is deemed to be the owner of a unit the sale of which has not completed from when the first unit of a sale was closed. FOCAL POINT This means that the developer is responsible for service charges for unsold units. Service NO ESCAPE FROM THE BLUES charges may not be used to defray expenses The largest of the country’s OMCs issue the enforcement of lease covenants, and that are properly the responsibility of the annual service charges in multi-millions of supports for OMC directors. builder or developer, unless authorised by euro. Estimates are that there are about Regulation, over and above the usual 75% of the OMC’s members. 8,000 OMCs in the country. CRO records CRO filings, and enforcement of company All MUDs must establish a building indicate that, over the last five years, on law by the ODCE, is recommended. Dispute investment or ‘sinking fund’ to pay for average three new OMCs were registered resolution via a non-judicial tribunal is refurbishment, improvement, or maintenance each week. advocated, as are more effective avenues for of a non-recurring nature. The act states A recent independent report, Owners’ the recovery of service-charge debt, moving that the annual contribution to the sinking Management Companies – Sustainable away from the courts. In this context, it is fund is to be €200 per unit, or such sum as Apartment Living for Ireland, jointly com- worth noting that OMC service-charge debt is agreed at a general meeting of owners. In missioned by the Housing Agency, and Clúid is ‘excludable’ from a personal insolvency theory, this allows for the varying financial Housing, considers the position of OMCs and arrangement under the Personal Insolvency needs of developments of differing sizes and reviews the limited effectiveness of the MUD Act 2012. Service-charge debt may be specifications. However, the advisory nature Act. The inadequacy of service-charge levels, written off in a PIA only with the consent of of the provision can mean a failure to build failure to provide for sinking funds, and the the creditor – that is, the OMC. up funding for future capital expenditure. persistent problem of mounting debtors are Other recommendations of the report On a related point, attention is drawn some of the topics addressed. include mandatory training for OMC to the March 2018 Design Standards for The report makes recommendations for directors, the standardisation of financial New Apartments – Guidelines for Planning change across a range of relevant regulatory accounts to a format prescribed for Authorities. Chapter 6 requires that a systems. Of interest to the legal profession OMCs, and enhanced insurance cover and ‘building life-cycle’ report, intended will be the recommendations for regulation reporting. Removal of the audit exemption is to inform sinking-fund calculations, be of OMCs, non-judicial mechanisms for also recommended. included with all apartment planning- permission applications. Law Society Gazette | gazette.ie PROPERTY LAW November 2019 55

DIRECTORS AND ADVISORS WOULD DO WELL TO REFLECT ON THE PRINCIPAL DUTIES, ENUMERATED IN PART 5 OF THE COMPANIES ACT, IN PARTICULAR THE REQUIREMENT TO ACT IN THE BEST INTERESTS OF THE COMPANY

Sinking-fund moneys must be held in a improved protection and dispute resolution. interests of the company. The exercise of bank account, and funds due to the OMC It provides for the transfer of control and independent judgement and the disclosure of may be recoverable as a simple contract debt. power from the developer to the OMC conflicts of interests are key to the running of and the owners. OMC members benefit a successful OMC board. Can’t be satisfied from fair and equal voting rights, as well as As noted, most OMCs are CLGs. The An OMC has the right to alter, amend or transparency around the calculation of annual Companies Act provides an audit exemption add to the house rules of the development, service charges. Owners of apartments may for CLGs. However, under sections 334 so long as any changes are consistent, fair influence the way in which their develop- and 1,218, any one member may require and reasonable, and have been circulated and ments are being run. Developers may be that an audit be carried out. In the context agreed to at a general meeting of the owners. pursued in court to hand over control and of assurance, transparency, and governance, Although the MUD Act does not offer any transfer the common areas to the OMC, if an audit can afford comfort and value to specific sanctions for a breach of house rules, they have not already done so. members. it does allow for the recovery by the OMC of the costs of remedying a breach. Got my mojo working Rollin’ and tumblin’ Landlords who sublet their properties are Having considered the principal provisions Practitioners should be cognisant of the obliged to ensure that their tenants adhere of the MUD Act, it should be remembered framework in which OMCs operate, in to the house rules. In Kennedy v Sweepstakes that while, in the main, OMCs are not- particular the interactions between the Multi- Owners Management Company CLG, the for-profit companies, by virtue of their Unit Developments Act 2011, and Companies High Court (Barrett J) granted leave to a corporate personality they are governed Act 2014. tenant to bring proceedings under section by the Companies Act 2014. In view of the The widening of the scope of the Property 24 of the MUD Act in connection with the centrality of the OMC to secure title and Services (Regulation) Act 2011, regulating implementation of house rules under section property values, the importance of good property management agents, is delivering 23. Section 25 lists parties that may apply governance and corporate compliance cannot enhanced service standards in the sector. for, or appear and be heard at, an application be understated. With the expansion in the number of under section 24. A tenant of a landlord Of the sections of the Companies Act apartment and managed developments (owner) in a MUD is not listed. In this case, relevant to OMCs, perhaps the most throughout the country, including those the court exercised the discretion afforded frequently invoked in practice are those owned by institutional landlords, further under paragraph (f) of subsection 1 of section governing company membership, directors’ maturing of the law affecting the sector may 25 to grant permission to “such other persons duties, and the particular provisions dealing be expected. as the court sees fit”. with companies limited by guarantee (CLGs). Under section 169 of the Companies My dog can’t bark Act, a company must keep a register of its Exclusive jurisdiction for the MUD Act lies members – also a requirement of the MUD LOOK IT UP with the Circuit Court. Dispute resolution by Act. The register becomes relevant where, CASES: means of mediation is encouraged in the first for example, members seek to coalesce to n Kennedy v Sweepstakes Owners instance. Mediation is an important feature, elect directors, pass budget items, or fix new Management Company CLG [2019] as it may prove beneficial to the consumer in house rules. The necessity for an up-to-date IEHC 552 terms of time and costs saved. register is obvious, and responsibility rests n Re Lance Homes Ltd [2018] IEHC The abridged company restoration with the directors. 444 procedure under the Companies Act 2014, OMC directors, albeit usually unpaid, whereby application may be made to the are bound by the same duties as attach LEGISLATION: Companies Office within 12 months of being to directors of other bodies corporate. n Companies Act 2014 struck off, is extended to a period of six years Directors and advisors would do well to n Multi-Unit Developments Act 2011 for OMCs. refresh themselves on the principal duties, n Property Services (Regulation) Act The MUD Act was intended to be a enumerated in part 5 of the Companies Act, in 2011 reforming piece of legislation, to deliver particular the requirement to act in the best 56 November 2019 WELLBEING Law Society Gazette | gazette.ie

Qu’est-ce que c’est?

Stressed out? Need help? There are many professions that care for people’s mental health, including psychiatry, psychology, psychotherapy, and counselling. Anne Colgan has psychotherapy and counselling on the couch

ANNE COLGAN IS CLINICAL DIRECTOR WITH THE HAVEN GROUP

e are living in stressful times. We ending deadlines, where even a two-week holiday is either are surrounded by uncertainty, impossible to achieve or offers no reprieve. A more serious which can affect our personal concern is when a workplace culture can allow bullying and lives and our workplace inappropriate behaviour to go unchecked. It appears that environment. Some of us have you are spending too much time in the ‘coping zone’, the been personally affected by recent most dangerous place to be for your wellbeing. austerity measures, or we are When work and personal stress are present, it can managing clients and customers be helpful to explore these stresses in a place where who have been affected. Businesses you feel safe, and where you are experiencing uncertainty as we are being listened to in a non- approach a no-deal Brexit and there judgemental manner. Speaking to are concerns about the impact on the AT A GLANCE a psychotherapist or counsellor future for their employees. Added to n Psychotherapy is an independent provides such a space. You can self- this, the overwhelming responsibility discipline, practised at an advanced, refer and find a therapist near you of the looming crisis of climate change qualified and scientific level on www.psychotherapycouncil.ie. affects every rational, caring, and n It covers a range of approaches and The therapeutic relationship is one responsible human being. methods based on a well-established of confidentiality and anonymity. Alongside these external factors, we body of theory, methodology and There are many professions may be experiencing challenges such research that care for the mental as ill health that has an impact on our n Counselling differs from psycho- health of society. Disciplines family or friends. Sometimes, however, therapy at training level and scope include psychiatry, psychology, PIC: SHUTTERSTOCK we appear to be physically well, but of practice psychotherapy, and counselling. instead are experiencing other stresses n It focuses on specific issues and is Each profession has its place – for example, in the workplace, which often designed to help a person with (medical and non-medical), and is all consuming. We can feel exhausted a specific problem it is up to you to identify the help by the unrelenting hours and never- you require. You can make this Law Society Gazette | gazette.ie WELLBEING November 2019 57 PIC: SHUTTERSTOCK WHEN CLIENTS SEEK PSYCHOTHERAPY, THEY HAVE A STORY TO TELL. IT MAY BE A TROUBLED, HURT OR ANGRY NARRATIVE OF A RELATIONSHIP, OR A LIFE IN CRISIS 58 November 2019 WELLBEING Law Society Gazette | gazette.ie

FINDING THE RIGHT HELP FOR YOU

t Are you finding it hard to cope Self-refer to a therapeutic* support and worried about yourself? near you. If you are unsure about self-referring, speak to your GP

t Are you looking to access about your options. professional help?

t COUNSELLING Counselling usually focuses on specific issues and is helpful in bringing relief to life events, such as bereavement. It is often designed to help with a specific problem. Counselling usually works with the ‘here and now’ and is a short-term process. See Irish Council for Counselling and Psychotherapy: www.iacp.ie

t PSYCHOTHERAPY Psychotherapy is a therapeutic modality for individuals and groups. It works at a range of levels – psychological, emotional and cognitive. It is effective in uncovering the deeper and less conscious aspects of behaviour and our relationships. While psychotherapy is particularly helpful in addressing long-term issues and trauma, it is also a helpful medium through which clients can learn more about themselves and their lives, and increase self-awareness and wellbeing. There are different types, approaches and methods in psychotherapy. Psychotherapy tends to be, but is not always, a medium to long-term process. See Irish Council for Psychotherapy: www.psychotherapycouncil.ie

t PSYCHOLOGY Psychology is the study of the mind and behaviour. Clinical and counselling psychologists are professionals who draw on scientific knowledge and professional practice to investigate, assess and support their clients to address their psychological and emotional difficulties, including any significant mental- health problems they are experiencing. See the Psychological Society of Ireland: www.psychologicalsociety.ie

t PSYCHIATRY Psychiatry is a branch of medicine that is concerned with the understanding, assessment, diagnosis and treatment of mental disorders. Psychiatrists are medical professionals. They will often work hand-in-hand with psychologists in hospital/clinical settings in the treatment of patients and can prescribe medication. It is not possible for an individual to self-refer to a psychiatrist; a GP referral is required to make an appointment. See the College of Psychiatrists of Ireland: Please note that, in many respects, there are no absolute meaningful distinctions between the therapeutic supports* – psychologists (counselling and clinical), psychotherapists and counsellors – listed here. These pro- fessionals can help with many different types of issues and problems and should discuss suitability of approach www.irishpsychiatry.ie and problem type with clients in the early stages of support. The descriptions provided here are to be used as an initial frame only, to support you explore what the right option is for you. SOURCE: LAW SOCIETY OF IRELAND Law Society Gazette | gazette.ie WELLBEING November 2019 59

IT ENDEAVOURS TO FACILITATE AN UNDERSTANDING OF THE UNDERLYING, OFTEN UNCONSCIOUS, SOURCES OF A PERSON’S DISTRESS OR DISTURBANCE BY INCREASING AWARENESS OF THEIR INNER WORLD AND ITS INFLUENCE OVER RELATIONSHIPS

decision with the help and support of your family, friends or GP. This article discusses psychotherapy and counselling, providing you with details of each.

What is psychotherapy? Psychotherapy supports people in developing awareness about what may be preventing them from accessing their ‘true self’. This awareness can bring about an insight into integrating mind and body, aiming at the person as a whole: body, emotions, and psyche. It looks at resilience, as well as the person’s own resources and capacity for self-determination and ability to improve their lives. Psychotherapy is an independent discipline, practised at an advanced, qualified and scientific level. It covers a range of approaches and methods based on a well- established body of theory, methodology and research. Psychotherapy may be short term to long Jung man, there’s no need to feel down term. You may wish to address a current situation or seek help because of more psychological (as distinct from medical or orative. This bond depends on the general underlying feelings of depression pharmacological) treatment for a range of psychotherapist’s capacity to be empathetic and anxiety, difficulties in concentrating, psychological, emotional and relationship and the extent to which the client feels dissatisfaction in work, or inability to form difficulties and disorders. listened to, understood, and supported. satisfactory relationships. Psychotherapy can provide an effective Client relationship Qualifications and training treatment for people who may seek help The relationship between the client and The total duration of psychotherapy training for more specific reasons, such as early psychotherapist is an essential element is not less than 3,200 hours, spread over a childhood trauma, eating disorders, of psychotherapy. Confidentiality in a minimum of seven years, including a relevant psychosomatic conditions, suicidal private setting is provided where difficult university degree. The latter four years is ideation, post-traumatic stress disorder, experiences may be explored and worked spent in the therapeutic space, in training obsessional behaviour, or phobic anxieties. through. This relationship (otherwise known that is specific to psychotherapy, with a It can also address the needs of people as the ‘therapeutic alliance’) is probably minimum requirement of QQI Level 9. who experience feelings of emptiness the most analysed within psychotherapy Psychotherapy training involves a or meaninglessness in their lives. It can research. Theoretical and empirical research minimum commitment of 250 hours of provide support when dealing with death findings indicate that the therapeutic personal psychotherapy or equivalent and marriage breakup. Psychotherapy can alliance, especially as experienced by the reflective practice throughout training to benefit adults, adolescents, children and client, is a significant indicator in the success address the dynamic forces and processes families. Psychotherapy covers a range of of the work of psychotherapy. in relation to the therapeutic alliance. approaches and methods: they all involve a The process of psychotherapy is collab- This commitment by psychotherapists LAW SOCIETY LAW SOCIETY PROFESSIONAL TRAINING PROFESSIONAL TRAINING

Centre of Excellence for Centre of Excellence for CentreProfessional of Excellence Education for and Lifelong Learning Professional Education and Lifelong Learning Professional Education and Lifelong Learning

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Study) €160 €186 22 Nov AnnualRegulation Family of the and Internet: Child Law Are Conferenceexisting rules working 4.5 General (by Group Study) €160 €186 22 Nov AnnualGeneral Family Practice and Update Child Law Conference 4.56 Hours General (by (byGroup Group Study) Study) * €160 €135 €186 22 Nov General Practice Update 6 Hours (by Group Study) * €135 22 Nov GeneralHotel Kilkenny, Practice Kilkenny Update 6 Hours (by Group Study) * Hot lunch and€135 networking drinks Hotel Kilkenny, Kilkenny Hot lunch and networking drinks 22 Nov HotelGeneral Kilkenny, Practice Kilkenny Update 6 Hours (by Group Study) * Hot lunchincluded and€135 networking in price drinks included in price 28 Nov HotelAnnual Kilkenny, Criminal Kilkenny Law Conference 3 General (by Group Study) Hot €160lunchincluded and networking in price €186 drinks 28 Nov Annual Criminal Law Conference 3 General (by Group Study) €160 €186 28 Nov Annual Criminal Law Conference 3 General (by Group Study) €160included in price €186 2829/30 Nov Nov AnnualProperty Criminal Transactions Law Conference Masterclass 38 General (byand Group2 M & Study)PD Skills (by €570*€160 €595* €186 29/30 Nov Property Transactions Masterclass 8 General and 2 M & PD Skills (by €570* €595* 29/30 Nov PropertyModule 1 Transactions– Fundamentals Masterclass of Property Transactions 8Group General Study) and per2 M Module & PD Skills (by Per€570* module Per€595* module Module 1 – Fundamentals of Property Transactions Group Study) per Module Per module Per module 29/30 Nov ModuleProperty 12 Transactions–- ComplexFundamentals Property Masterclass of Property Transactions Transactions Group*iPad8 General included Study) and per2 in M feeModule & PD Skills (by Per€570* module Per€595* module Module 2 - Complex Property Transactions *iPad included in fee Module 231 –- ComplexFundamentalsCommercial Property Property of Property Transactions Transactions Transactions *iPadGroup included Study) per in feeModule Per module Per module Module 3 – Commercial Property Transactions ModuleAttend 1, 32 2-– ComplexorCommercial all 3 modules Property Property Transactions Transactions *iPad included in fee Attend 1, 2 or all 3 modules 2 Dec or 9 AttendNegotiationModule 1, 3 2– orCommercial Skills all 3 modules for Lawyers Property Transactions 3.5 M & PD Skills (by Group Study) €160 €186 2 Dec or 9 Negotiation Skills for Lawyers 3.5 M & PD Skills (by Group Study) €160 €186 2Dec Dec or 9 NegotiationAttend 1, 2 or Skills all 3 modules for Lawyers 3.5 M & PD Skills (by Group Study) €160 €186 Dec Dec24 Dec or 9 NegotiationThe In-house Skills and Public for Lawyers Sector Panel 2019 3.53 M M & &PD PD Skills Skills (by (by Group Group Study) Study) €160 €65 €186 Dec4 Dec The In-house and Public Sector Panel 2019 3 M & PD Skills (by Group Study) €65 4 Dec The In-houseMeyrick Hotel, and PublicGalway Sector Panel 2019 3 M & PD Skills (by Group Study) €65 The Meyrick Hotel, Galway 4 Dec & TheTime In-house ManagementMeyrick Hotel, and Public forGalway Lawyers Sector Panel 2019 3 M & PD Skills (by Group Study) €160 €65 €186 4 Dec & Time Management for Lawyers 3 M & PD Skills (by Group Study) €160 €186 411 Dec Dec & TimeThe ManagementMeyrick Hotel, forGalway Lawyers 3 M & PD Skills (by Group Study) €160 €186 11 Dec 1145 Dec Dec & TimeWill Drafting Management Masterclass for Lawyers 36 MGeneral & PD Skills(by Group (by Group Study) Study) €160€210 €255€186 5 Dec Will Drafting Masterclass 6 General (by Group Study) €210 €255 115 Dec Dec Will Drafting Masterclass 6 General (by Group Study) €210 €255 510 Dec Dec WillPractice Drafting and RegulationMasterclass Symposium, 63.5 General M & PD (by Skills Group Study) €210 €135 €255 10 Dec Practice and Regulation Symposium, 3.5 M & PD Skills €135 10 Dec PracticeThe Shelbourne and Regulation Hotel, Dublin Symposium, 3.5 MRegulatory & PD Skills Matters (Incl 1 Hot lunch and€135 networking drinks The Shelbourne Hotel, Dublin 3.5 Regulatory Matters (Incl 1 Hot lunch and networking drinks 10 Dec ThePractice Shelbourne and Regulation Hotel, Dublin Symposium, 3.5accounting RegulatoryM & PD Skillsand Matters AML Compliance) (Incl 1 Hot lunchincluded and€135 networking in price drinks accounting and AML Compliance) included in price The Shelbourne Hotel, Dublin accountingTotal3.5 Regulatory 7 Hours and (by Matters AML Group Compliance) (InclStudy) 1 Hot lunchincluded and networking in price drinks Total 7 Hours (by Group Study) Starts 20 LLM in International Financial Services Law TotalFullaccounting general 7 Hours andCPD (by AML Grouprequirement Compliance) Study) included€3,800 in price Starts 20 LLM in International Financial Services Law Full general CPD requirement €3,800 StartsJan 20 LLMin collaboration in International with UCD Financial Sutherland Services School Law of Law FullforTotal 2020 general 7 Hours CPD (by Grouprequirement Study) €3,800 Jan in collaboration with UCD Sutherland School of Law for 2020 JanStarts 1920 inCertificateLLM collaboration in International Professional with UCD Financial SutherlandEducation Services School Law of Law forFull 2020 general andCPD management requirement CPD €1,450 €3,800 €1,550 Starts 19 Certificate Professional Education Full general and management CPD €1,450 €1,550 StartsFebJan 19 Certificate19in collaboration Feb, 4 & 14 Professional Mar, with 8 UCD& 18 AprilSutherlandEducation and 6 &School 16 May of Law Fullrequirementfor 2020 general andfor 2020 management CPD €1,450 €1,550 Feb 19 Feb, 4 & 14 Mar, 8 & 18 April and 6 & 16 May requirement for 2020 FebStarts 2819 19CoachingCertificate Feb, 4 & Skills 14 Professional Mar, for 8 Solicitors & 18 AprilEducation &and Practice 6 & 16 ManagersMay requirementFull general andfor 2020 management CPD €1,450€1,200 €1,550€1,440 Starts 28 Coaching Skills for Solicitors & Practice Managers Full general and management CPD €1,200 €1,440 StartsFeb 28 Coaching2819 Feb,& 29 4 Feb, & Skills 14 20 Mar, Mar for 8 Solicitors& & 3 18 Apr April &and Practice 6 & 16 ManagersMay Fullrequirement general andfor 2020 management CPD €1,200 €1,440 Feb 28 & 29 Feb, 20 Mar & 3 Apr requirement for 2020 Feb13Starts Feb 28 28PracticalCoaching & 29 Feb, Legal Skills 20 MarResearch for Solicitors& 3 Apr for the & Practice Practitioner Managers requirement2Full General general and andfor 4 2020 Mmanagement & PD Skills CPD €1,200€572 €1,440 €636 13 Feb Practical Legal Research for the Practitioner 2 General and 4 M & PD Skills €572 €636 13&Feb 27 Feb Feb Practical28 & 29 Feb, Legal 20 MarResearch & 3 Apr for the Practitioner 2(byrequirement General Group andStudy) for 4 2020M & PD Skills €572 €636 & 27 Feb (by Group Study) 19/20&13 27 Feb Feb Mar CertificatePractical Legal in English Research & forWelsh the Property Practitioner Law (by92 General Group and(byStudy) Group4 M & Study)PD Skills €572€411 €588€636 19/20 Mar Certificate in English & Welsh Property Law 9 General (by Group Study) €411 €588 19/20& 27 Feb Mar Certificate in English & Welsh Property Law 9(by General Group (byStudy) Group Study) €411 €588 19/2024/25 MarApril CertificatePlanning & Environmentalin English & Welsh Law MasterclassProperty Law 98 General (byand Group2 M & Study)PD Skills €350€411 €588€425 24/25 April Planning & Environmental Law Masterclass 8 General and 2 M & PD Skills €350 €425 24/25 April Planning & Environmental Law Masterclass 8(by General Group andStudy) 2 M & PD Skills €350 €425 (by Group Study) 24/25 April Planning & Environmental Law Masterclass (by8 General Group andStudy) 2 M & PD Skills €350 €425 (by Group Study) *Please note our Finuas Skillnet Cluster Events are a combination of General, Management & Professional Development Skills and Regulatory Matters CPD Hours (by Group Study). *Please note our Finuas Skillnet Cluster Events are a combination of General, Management & Professional Development Skills and Regulatory Matters CPD Hours (by Group Study). *Please note our Finuas Skillnet Cluster Events are a combination of General, Management & Professional Development Skills and Regulatory Matters CPD Hours (by Group Study). For*Please a complete note our listing Finuas of Skillnet upcoming Cluster events Events including are a combination online GDPR of and General, Social Management Media Courses, & Professional Development Skills and Regulatory Matters CPD Hours (by Group Study). For a complete listing of upcoming events including online GDPR and Social Media Courses, Forvisit a www.lawsociety.ie/CPD complete listing of upcoming or contact events a includingmember of online the Law GDPR Society and SocialProfessional Media TrainingCourses, team on visit www.lawsociety.ie/CPD or contact a member of the Law Society Professional Training team on visitFor a www.lawsociety.ie/CPD complete listing of upcoming or contact events a includingmember of online the Law GDPR Society and SocialProfessional Media TrainingCourses, team on Pvisit 01 www.lawsociety.ie/CPD 881 5727 E [email protected] or contact a member F of the 01Law 672 Society 4890 Professional *Applicable Training to Law Society team on Finuas Skillnet members 11_19 P 01 881 5727 E [email protected] F 01 672 4890 *Applicable to Law Society Finuas Skillnet members 11_19 P 01 881 5727 E [email protected] F 01 672 4890 *Applicable to Law Society Finuas Skillnet members 11_19 P 01 881 5727 E [email protected] F 01 672 4890 *Applicable to Law Society Finuas Skillnet members 11_19 LSPT Gazette ad November 2019.indd 1 23/10/2019 11:01 LSPT Gazette ad November 2019.indd 1 23/10/2019 11:01 LSPT Gazette ad November 2019.indd 1 23/10/2019 11:01 LSPT Gazette ad November 2019.indd 1 23/10/2019 11:01 Law Society Gazette | gazette.ie WELLBEING November 2019 61

is to understand and know themselves. can achieve change by working directly or disturbance by increasing awareness It begins during their extensive training on their own patterns of thinking and of their inner world and its influence and continues throughout their ongoing behaviour. In therapy, they need to learn over relationships, both past and present. professional life, with a minimum more helpful and functional thought Psychoanalysis as a clinical activity is requirement of 50 hours of CPD annually. patterns. essentially a special form of dialogue. The awarding body is the Irish Council • Family therapy: this is a term used to It is a method for experiencing and for Psychotherapy. describe a range of psychotherapeutic observing the unconscious processes Psychotherapists are required to attend approaches that seek to bring about going on in the mind. supervision a minimum of once a month. change in close relationships. Family • Humanistic and integrative The purpose of this is to bring another therapy, (also called ‘systemic psychotherapy: this approach emphas- perspective to the work, with a clinical psychotherapy’) addresses the problems ises that people are self-regulating, self- supervisor, and to ensure that best practice people present within the context of their actualising and self-transcendent beings, prevails. This work is confidential and lives and their social networks. Systemic who are responsible for themselves. While anonymous. Supervision is compulsory for psychotherapists are trained to work with recognising the tragic dimensions of psychotherapists and counsellors. individuals, couples, children, or other human existence, it emphasises peoples’ network groups, and to move between ability to grow and change and realise How is counselling different? one setting and another as the needs of their true nature more fully. Based on Counselling differs from psychotherapy at the therapeutic relationship demand. a phenomenological view of reality, training level and scope of practice. The • Constructivist psychotherapy: the the emphasis is on experience, and the minimum standard required is QQI Level clearest hallmark of constructivist therapeutic relationship is seen as a 8, and the amount of personal therapy and related schools of therapy is an meaningful contact between equals. hours is 50 throughout training. The CPD invitational mode of enquiry, which requirement is also less, at 30 hours per assists clients in making sense of their What to expect? annum. Counselling training is between experiences. George Kelly, the founder The process of psychotherapy begins when three and four years. Counselling focuses on of personal construct psychology, you commit to helping yourself and to look specific issues and is often designed to help a articulated a fundamental belief of for a therapist. When you make contact, the person with a specific problem. Counselling therapists who work from a constructivist psychotherapist will arrange an appointment usually works with the here and now, and can perspective: “No one needs to be a victim for you. be short term. Many psychotherapists have of their biography.” When clients seek The next step is to turn up for the also undertaken training in counselling. The psychotherapy, they have a story to tell. appointment. There is no need for an awarding body is the Irish Association of It may be a troubled, hurt or angry agenda, although you can bring a list of Counselling and Psychotherapy. narrative of a relationship, or a life in topics if you so wish. You will be met in crisis. Constructivist therapists work in an empathetic, non-judgemental manner. Types of psychotherapy a variety of settings with individuals, This is your time. You are well on your • Cognitive behavioural psychotherapy: couples, families, and in organisations. journey to improving your mental health the philosophy underpinning this • Psychoanalytic theory: psychoanalytic and overall wellbeing. approach is that a person learns to act theory and practice is essentially an You and the psychotherapist will decide and think in certain ways as a result of enquiry into the human condition how many sessions you may need as you their lifetime experiences and how they from psychopathology to the broader engage in the process. The importance is perceive those experiences. This learning philosophical, social and cultural that you are getting support and you are is a lifelong process. Clients seek help for context. It endeavours to facilitate an giving yourself the time. You can expect a variety of reasons. Cognitive behaviour understanding of the underlying, often empathy and confidentiality as you begin psychotherapists postulate that people unconscious, sources of a person’s distress and continue your journey.

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Library ad Gazette Jan_Feb 2017.indd 1 25/01/2017 15:09 62 November 2019 BRIEFING | EURLEGAL Law Society Gazette | gazette.ie

COPYRIGHT LAW AND FUNDAMENTAL RIGHTS The CJEU’s preliminary ruling last year in the Bastei Lübbe case – concerning online infringement of a copyright-protected audiobook – is significant for a number of reasons, writes Mark Hyland

DR MARK HYLAND IS IMRO ADJUNCT PROFESSOR OF INTELLECTUAL PROPERTY LAW AT THE LAW SOCIETY OF IRELAND AND LECTURER IN INTERNATIONAL INTELLECTUAL PROPERTY LAW AT BANGOR UNIVERSITY LAW SCHOOL

he ruling in Case – the right protecting intellec- uted the IP address in question C-149/17 Bastei Lübbe tual property was given greater to the defendant. v Michael Strotzer is weight by the CJEU than the In essence, the defendant Tthe most recent addition to a right to a private life. relied on paragraph 97 of the series of CJEU judgments that 1965 German Law on Copyright address the balancing of funda- Press rewind and Related Rights. That par- mental rights in the context of The judgment was delivered ticular provision, as amended in the enforcement of intellectual by the CJEU on 18 October 2013 and interpreted by the Fed- property rights (IPRs). 2018. The referral to the CJEU eral Court of Justice, is capable The EU’s most senior court was made by the Landgericht of providing an exemption from expressed serious doubt about a München (the Regional Court, liability to a defendant owner of TWO provision in domestic German Munich). In essence, the pre- an internet connection where law that constituted an exemp- liminary ruling concerned the the relevant internet connec- FUNDAMENTAL tion from copyright liability. interpretation of certain pro- tion is not sufficiently secure, or The CJEU also took the visions in two important EU was knowingly made available RIGHTS WERE opportunity to re-emphasise the directives that are relevant to to other persons. Pertinently, a CONCERNED. need to reconcile the require- copyright law – the Information family member of Strotzer had ments of the protection of sev- Society Directive (2001/29/EC) access to the defendant’s inter- FIRST, THE RIGHT eral fundamental rights con- and the Directive on the Enforce- net connection. Having regard tained in the Charter of Funda- ment of Intellectual Property Rights to the fundamental right to the TO AN EFFECTIVE mental Rights of the EU. More (2004/48/EC). protection of family life, Strotzer REMEDY AND specifically, the CJEU stated The main proceedings (in could escape liability by merely that, when transposing direc- Germany) concerned an action naming a family member, with- THE RIGHT TO tives, member states must “take for damages as a result of alleged out being required to provide care to rely on an interpretation copyright infringement through further details as to when and INTELLECTUAL of them that allows a fair bal- file-sharing. The claimant, Bas- how the internet was used by PROPERTY AND, ance to be struck between the tei Lübbe (a German media that family member. various fundamental rights pro- company/trade book publisher), SECOND, THE tected by the EU legal order” is the holder, as a phonogram Pause (paragraph 45). producer, of the copyright and The CJEU considered whether RIGHT TO RESPECT Third, Bastei Lübbe adds to related rights in the audio ver- the German copyright exemp- FOR PRIVATE AND the corpus of case law on the sion of a book. The defendant, tion was compatible with article balancing of fundamental rights Mr Strotzer, is the owner of an 8(1) of the Information Society FAMILY LIFE in the context of the enforce- internet connection through Directive, which refers to “appro- ment of IPRs. which, in 2010, the audio book priate remedies” and “effective Lastly, the judgment also was shared illegally with an and dissuasive sanctions against News from the EU and demonstrates that the rights unlimited number of users of a perpetrators” in the context International Affairs Committee. Edited by TP Kennedy, director of within the Charter have limi- peer-to-peer internet exchange. of copyright infringements. education, Law Society of Ireland tations and – on this occasion An IT expert correctly attrib- In addition, the CJEU also Law Society Gazette | gazette.ie BRIEFINGBRIEFING | |EURLEGAL ????????? November 2019 63 PIC: SHUTTERSTOCK

asked whether it was compat- mental right to the protection of directive. This recital states THE RIGHT ible with article 3(1) and (2) of family life to prevent the claim- that evidence is “an element the Enforcement Directive, which ant from obtaining the evidence of paramount importance for PROTECTING refer to “effective and dissuasive necessary to support its claims. establishing the infringement of measures, procedures and reme- But the CJEU was quick to refer IPRs and that it is appropriate INTELLECTUAL dies for the purposes of ensuring to article 6(1) of the Enforcement to ensure that effective means of PROPERTY WAS enforcement of the IPRs”. Directive. This provision relates presenting, obtaining and pre- The catalyst in the judgment, to evidence lying in the control serving evidence are available”. GIVEN GREATER for the CJEU’s statements on of the defendant. It permits the the need to balance or reconcile adjudicating court to “order Fast forward WEIGHT BY THE several fundamental rights, was that such evidence be presented This ‘clash’ between the funda- the issue of evidence or, more by the defendant, subject to mental right to the protection CJEU THAN THE specifically, evidence within the protection of confidential of family life and article 6(1) RIGHT TO A the control of the defendant. information”. The court also gave the CJEU a compelling Strotzer was invoking the funda- referred to recital 20 of the same reason to consider more broadly PRIVATE LIFE 64 November 2019 BRIEFING | EURLEGAL Law Society Gazette | gazette.ie

the whole notion of balancing measures transposing the direc- by article 8(1) of the Information (or reconciling) various Charter tives, the authorities and courts Society Directive. Moreover, the fundamental rights. of member states must interpret CJEU was of the view that the The CJEU’s statements on their national law in a manner procedure initiated in respect of the importance of balancing dif- consistent with those direc- the remedy at issue in the main ferent Charter rights constitutes tives. In addition, they must also proceedings was not capable of one of the most compelling parts ensure that they do not rely on ensuring the enforcement of of this judgment (paragraphs 43 an interpretation of them that IPRs required by article 3 (1) of to 47). would be in conflict with those the Enforcement Directive. Two fundamental rights were fundamental rights or with the In conclusion, and consid- concerned. First, the right to an other general principles of EU ering the domestic German effective remedy and the right law. law in the light of the relevant to intellectual property (article The CJEU then went on to provisions of the directives, 17(2) of the Charter) and, sec- address any limitation on the the CJEU’s view was that the ond, the right to respect for pri- exercise of the rights recog- domestic German law should be vate and family life (article 7). nised by the Charter. Referring deemed invalid. The language When analysing the recon- to article 52(1) of the Charter, of the judgment is a bit ambigu- ciliation of various fundamental the court stated that the provi- ous, but the CJEU, referring to rights in the context of evidence sion provides that “any limita- the relevant provisions of the and evidence-gathering, the tion on the exercise of the rights directives, stated that they “must CJEU referred to article 6(1) and freedoms recognised by the be interpreted as precluding and recital 20 of the Enforce- Charter must respect the essence national legislation such as that ment Directive. According to of those rights and freedoms”. in the main proceedings”. the CJEU, article 6(1) requires The court went on to say that AN OWNER OF member states, in an effective CJEU case law demonstrated Record manner, to enable the injured that a measure that results in The Bastei Lübbe ruling is the AN INTERNET party to obtain the evidence serious infringement of one most recent addition to a series CONNECTION within the control of the oppos- of the Charter rights is to be of CJEU judgments that address ing party (the alleged defendant) regarded as not respecting the the balancing of fundamen- USED FOR that is necessary for support- requirement that such a fair tal rights in the context of the ing its claims. This is subject balance be struck between the enforcement of IPRs. This series COPYRIGHT to confidential information fundamental rights that must be of rulings also includes cases INFRINGEMENTS being protected in the process. reconciled. C-275/06 Promusicae (2008), The CJEU went on to observe It is incumbent on the court C-70/10 Scarlet Extended (2011), CANNOT that the fundamental right to to assess the various elements of C-314/12 UPC Telekabel (2014), the protection of family life is, the national legislation at issue C-580/13 Coty Germany (2015), INVOKE HIS in the context of the national in the main proceedings in the and C-484/14 McFadden (2016). FUNDAMENTAL legislation at issue, an obstacle light of that requirement of a Bastei Lübbe is authority for preventing the injured party fair balance. the proposition that there are RIGHT TO PRIVATE (the rights holder) from obtain- limitations to the rights con- ing the evidence necessary for Eject tained in the Charter. For exam- LIFE SO AS TO supporting its claims from the Given that the relevant domes- ple, an owner of an internet BLOCK OR IMPEDE opposing party. tic law in Germany guaranteed connection used for copyright Referring to its own rul- an “almost absolute protection infringements cannot invoke EVIDENCE- ing in C-580/13 Coty Germany, for the family members of the his fundamental right to private the CJEU stated that EU law owner of the internet connec- life so as to block or impede GATHERING IN A requires that, when transposing tion through which copyright evidence-gathering in a case of CASE OF ALLEGED directives, member states must infringements were committed alleged copyright infringement take care to rely on an interpre- by file-sharing”, the CJEU con- involving file-sharing. In the COPYRIGHT tation of them that allows a fair sidered that that law could not clash between the protection of balance to be struck between be considered to be “sufficiently IP (article 17(2) of the Charter) INFRINGEMENT the various fundamental rights effective and capable of leading and the right to a private life INVOLVING FILE- protected by the EU legal order. to effective and dissuasive sanc- (article 7 of the Charter), the Subsequent to the transposition tions against the perpetrators of court in Bastei Lübbe comes down SHARING and when implementing the the infringement”, as required in favour of the former. Law Society Gazette | gazette.ie BRIEFING | COUNCIL REPORT November 2019 65

REPORT OF LAW SOCIETY COUNCIL MEETING 13 SEPTEMBER 2019 Past-president Simon Murphy the Society’s complaints-handling as one of the Society’s nominees which 1,550 were British appli- On behalf of the Council, the function until that was transferred to the board of the LSRA for a cants. Finally, 1,355 students had president paid tribute to past- to the LSRA on 7 October 2019. further three years. Paul Keane registered to sit the FE1 in Octo- president Simon Murphy, who James Cahill welcomed the reported that 7 October 2019 was ber, which was the largest number was leaving the Council after 21 draft rules, which he felt would now a confirmed date for com- since 2001. It was hoped that the years of service. give solicitors valuable guidelines mencement of part 6 of the act FE1 sittings in March 2020 would without having to phone a col- relating to complaints-handling, be held both in Dublin and in IBA report entitled ‘Us Too?’ league for informal guidance. Mr section 150 relating to legal costs, Cork. The introduction of the The Council considered a report Cahill raised concerns in relation and the introduction of statu- single PPC from 2020 had also issued by the IBA’s Working to a number of the draft provi- tory instruments relating to legal been reformulated so that there Group on Bullying and Sexual sions, which were responded to partnerships and LLPs. In addi- would be no overlap with the final Harassment in the Legal Profes- by the director of regulation. tion, the authority was hosting a PPC2 course. It was hoped to sion, entitled ‘Us Too?‘, which had The Council approved the draft seminar on legal education and commence the consultation pro- been circulated to all Council rules, and it was noted that the training in Croke Park on 20 Sep- cess as to course content before members in advance. The direc- next steps would require them tember 2019, at which the Soci- the year-end by way of a question- tor general, who was a member of to be approved by the President ety would be represented. The naire issuing to all firms. the IBA working group, outlined of the High Court and then director general said that the staff the methodology, the findings placed before both Houses of the transfer under section 26 of the Practising certificates and the recommendations. The Oireachtas. act, which had been logistically Christopher Callan noted that the Council agreed that the author and legally complex, had been year-end estimate for practising of the report should be invited Vacant-site levy completed, with 11 staff members certificates was 11,800 – or 900 to Dublin to make a presenta- The chairman of the Finance signing their consents and the more than in 2018. The increase tion on its contents, and to con- Committee, Christopher Cal- minister signing their redesigna- was primarily driven by an addi- sider the recommendations for lan, reported that the Society had tion as public servants. tional 500 Brexit practising cer- action. It was noted that some of successfully appealed to An Bord tificates, to a total of 748. Solici- the elements of the Society’s Pro- Pleanála against a vacant-site levy Admissions and education tors on the Roll now stood at over fessional Wellbeing Programme demand notice for €260,000 for The chair of the Education Com- 20,500. addressed the issue of the statu- 2018 and an estimated levy of mittee, Carol Plunkett, reported tory obligation on solicitors’ firms €660,000 for 2019 on the Law that there were 456 trainees Transition-year students to provide a psychologically safe Society’s site at Benburb Street. attending the current PPC1. In The chair of the Guidance and place of work, free of bullying The primary reasons given for the addition, 25 trainees had regis- Ethics Committee, Valerie Peart, and sexual harassment, and also decision was that it no longer had tered for the Hybrid PPC, which reported that the guides for the economic benefits of a happy, adverse effects on the character of was to commence in December. transition-year students working healthy and safe workforce. the area, through the erection of Ms Plunkett noted that 1,732 in solicitors’ practices had been hoarding, the provision of sports solicitors had been admitted to greeted with very positive feed- Draft rules of procedure facilities, and lack of visibility of the Roll thus far this year, of back from the members. The chair of the Complaints and the site from the public realm. Client Relations Committee, Paul Egan, outlined draft rules in Property purchase respect of section 8 and 9 com- Following a presentation from plaints and draft rules in respect the chair of the Finance Com- of conduct complaints, which mittee, the Council approved the had been circulated in advance purchase of a property close to of the meeting. Mr Egan noted the Society’s boundary for which that the draft rules would guide there were a number of potential and support the committee while uses, both immediately and in the Law Society Library and information ServiceS – we deLiver! the committee’s caseload was ‘run longer-term. off’, and afford clear and appro- LawWatch – we deliver a free, weekly, emailed newsletter with updates on judgments, legislation and journal articles. priate fair procedures to all solici- Legal Services Regulation Act To subscribe, contact: [email protected]. tors who were the subject of com- The Council approved the reap- Contact the library: tel: 01 672 4843/4; email: [email protected] plaints. The rules would apply to pointment of Geraldine Clarke

Library ad Gazette Dec 2015.indd 1 24/11/2015 10:46 66 November 2019 BRIEFING | PRACTICE NOTES Law Society Gazette | gazette.ie

PROFESSIONAL INDEMNITY INSURANCE COMMITTEE PROFESSIONAL INDEMNITY INSURANCE RENEWAL The mandatory professional for 2019/2020 with the Society by ety also has the power to waive expiry of cover to their insurer indemnity insurance (PII) renewal 4 December 2019. the minimum financial rating within three working days imme- date for all firms is 1 December Please note that your firm will requirement for participating diately following the end of the 2019. This date is not negotia- not be reflected as having PII in insurers, subject to such terms coverage period. Therefore, a ble. All cover under the current place on the Society’s ‘Find a firm’ and conditions as the Society three-working-day grace period indemnity period will expire on online search facility until such deems fit, such as provision of a from 30 November 2019 is in 30 November 2019. time as the Society has received suitable parental guarantee from place with regard to notification the required online confirmation a rated parent company. of claims and circumstances to Confirmation of cover of cover. It should be noted that all par- your insurer. All firms must ensure that confir- ticipating insurers in the market mation of their PII cover is pro- Renewal resources are permitted to write insurance Quotes vided to the Society within three The guide to renewal for the in this jurisdiction under the Insurers are required to leave working days of 1 December 2019/2020 indemnity period will supervision of the Central Bank. quotes to firms open for a period 2019, including those firms with be published on the Society’s The Society is not responsible of not less than ten working days. variable renewal dates. Therefore, website on 4 November 2019 to for policing the financial stabil- confirmation of cover in the des- assist the profession with renewal. ity of any insurer. The Society Amendments to cover ignated form must be provided to The guide includes information does not vet, approve, or regulate The following amendments have the Society on or before close of such as tips for renewal, impor- insurers. been introduced in the PII Regu- business on Wednesday 4 Decem- tant points to note, and a guide lations 2019 (SI 465 of 2019): ber 2019. to insurers and brokers. This Notification of claims • The definition of ‘firm’ has Confirmation of cover should guide will be updated frequently All claims made against solicitors’ been amended to include lim- be provided by your broker with new information received firms and circumstances that may ited liability partnerships, and through the Society’s online PII by the Society, in particular with give rise to such a claim should a definition of ‘limited liability confirmation system. Such con- regard to what insurers will be in be notified to the firm’s insurer partnerships’ has been intro- firmation must include your pol- the market in the next indemnity as soon as possible. In particular, duced. icy number, and confirmation of period. claims made between 1 Decem- • The definition of ‘insured’ cover cannot be provided until the Renewal resources for the ber 2018 and 30 November 2019 has been amended to explic- policy is actually in place. As your 2019/2020 indemnity period (both dates inclusive) should itly provide that the defini- firm has a statutory obligation to are available to download from be notified by the firm to their tion includes trustee and other ensure such confirmation of cover the Society website at www.law insurer by 30 November 2019. companies owned by any one is provided to the Society on or society.ie/PII and include the It is proper practice for firms or more of the individual prin- before Wednesday 4 December common proposal form, PII reg- to notify insurers of claims or cipals, rather than necessarily 2019, you are responsible for ulations and minimum terms and circumstances during the year all of the principals. A similar ensuring that your broker pro- conditions, the Participating Insur- as they arise, not at the end of amendment has been made vides the Society with confirma- ers Agreement, and relevant PII the indemnity period. Notifying to the definition of ‘legal ser- tion of cover by that date. You practice notes. The information all claims and circumstances at vices’. should also ensure that your bro- available is frequently updated as the end of the indemnity period • The definition of ‘misconduct’ ker has familiarised themselves more documentation becomes is referred to as ‘laundry listing’ has been amended to provide with the online confirmation sys- available. by insurers, and is not looked for the commencement of the tem, and has the necessary infor- on favourably. Firms should also new definition under the Legal mation to confirm cover online Financial strength rating ensure that their claims and cir- Services Regulation Act 2015. (such as their login and password) There is a minimum financial- cumstances notifications meet • A definition of ‘self-insured in advance of 1 December 2019. strength requirement from a rec- the notifications requirements excess’ has been introduced. It is noted that some firms who ognised rating agency for all par- set out in the insurance policy • Clause 6.10 of the minimum have confirmed PII cover to the ticipating insurers of an A rating terms and conditions. terms and conditions was Society during 2019 have a cov- (S&P, Fitch) or equivalent. The The minimum terms and con- amended to deal with issues erage period that extends past 30 recognised rating agencies are ditions for PII permit firms to raised by Brexit. November 2019. Such firms are Standard & Poor’s, Fitch, AM report claims or circumstances • Other tidy-up amendments still required to reconfirm cover Best, and Moody’s. The Soci- of which they are aware prior to have been made to the regula- Law Society Gazette | gazette.ie BRIEFING | PRACTICE NOTES November 2019 67

tions to update and improve directly to the Special Purpose levels of run-off cover exist, Fund at the same level that clarity, and ensure consistency. Fund Manager, not the Society. depending on the compliance of exist in the ARP, with aggre- Further information on run-off run-off firms: gate cover and no cover for Run-off Fund cover and succeeding practices, • Compliant run-off firms have claims by financial institutions. The Run-off Fund provides run- including the contact details of cover in the Run-off Fund off cover for firms ceasing prac- the Special Purpose Fund Man- with the same minimum terms Further information on changes tice that have renewed their PII ager, can be found at www.law and conditions as those that to run-off cover provisions can for the current indemnity period, society.ie/PII. exist in the market, be found at www.lawsociety.ie/ and subject to meeting eligibility • Non-compliant run-off firms PII. criteria, including that there is Run-off compliance status have reduced cover in the Run- no succeeding practice in respect Provisions are in place with the off Fund with the same mini- PII helpline of the firm. Special Purpose Fund Manager mum terms and conditions as The Society continues to operate Any firm intending to cease to ensure the required level of those that exist in the market, the PII Helpline to assist firms practice after 30 November 2019 compliance of firms in the Run- with the exception that there is in dealing with PII queries. The is required to renew cover for the off Fund with regard to claims no cover for claims by finan- helpline is available Monday to 2019/2020 indemnity period. and membership of the Run-off cial institutions, Friday, 10am to 4pm, at tel: 01 Any applications to the Run- Fund. • ARP run-off firms continue 879 8707 or email: piihelpline@ off Fund for cover must be made Under these provisions, three to have cover in the Run-off lawsociety.ie.

CONVEYANCING COMMITTEE NPPR ON NEW BUILDS The Conveyancing Committee property that did not exist or was oper should provide, on closing, a building formed part of the has been asked to provide guid- not suitable for use as a dwelling statutory declaration confirming trading stock of a business ance on what should be provided by reason of being in the course that the property is not a ‘resi- from which, since its con- by a builder/developer on the of construction on a liability date dential property’, confirming as struction, no income has been sale of a ‘residential property’ (as to which the act applied cannot appropriate: derived, and which has not at defined in the Local Government be liable to the NPPR charge. • That the building was not a any time since its construction (Charges) Act 2009), the construc- The problem – from a practical relevant residential property been used as a dwelling. tion of which was completed or point of view for a vendor, on a because construction of the even started after 31 March 2013, subsequent sale of the property building was completed or The declaration should be placed being the last liability date for the – is establishing that the prop- indeed, if appropriate, com- with the title documents to avoid NPPR charge. Section 2 of the act erty was not liable to the NPPR menced after 31 March 2013, having to trawl through docu- defines a residential property as a charge. or ments at the time of future sales building used or suitable for use as It is the view of the committee • If the property was completed to provide evidence that the a dwelling. Clearly, a residential that the original builder/devel- by 31 March 2013, that the NPPR charge does/did not apply.

Stephenson Solicitors’ 36th Seminar OOPS! STOP DIGGING – FIX IT 9.15 – 5pm, Friday, 22nd November 2019, Radisson Hotel, Golden Lane. €390

It is all about the common problems, EPAs, Wills, Probate, Tax and Administrations and how best to remedy same.

TOPICS INCLUDE: Shannon 2019, can section 82 be overcome? Two Wills? n UPDATES: the seminal changes in the Probate n PROBATE/ADMINISTRATIONS: common problems e.g Office (Nov 2019) including all of the new forms and the LPR cannot be found, and how to “fix” same. Stephenson Solicitors procedures. n NO, IT IS YOU! When the people are the problem, the 55 Carysfort Avenue, n EPA’S: ‘Fixes’ from “Its missing..” through to post executors/trustees are simply the wrong men for the job, Blackrock, Registration problems and beyond to the Assisted what then? Co Dublin. Phone: +353 1 2756759 Decision Making Capacity Act 2015. n Fax: +353 1 2109845 WILL ERRORS: incl percentages of bequest do not add Full details in the October Gazette and on website. www.stephensonsolicitors.com to 100, list or map referred to, the effect of Shannon v Hurry – there are a few places left. 68 November 2019 BRIEFING | REGULATION 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 David Doyle, Mortgages in respect of his 1) Stand censured, respondent solicitor guilty of a solicitor previously practising named clients and borrowers 2) Pay a sum of €1,512 as a con- professional misconduct in her as a partner in Doyle Associ- and property at Mountbellew, tribution towards the whole of practice as a solicitor in that ates at 56 Main Street, Rath- Co Galway, in respect of a the costs of the Society. she misled her client by lead- farnham, Dublin 14, and in named mortgage account in a ing her to believe that court the matter of the Solicitors Acts timely manner or at all, In the matter of Aine Kilfea- proceedings had been insti- 1954-2015 [2018/DT91] 2) Failed to comply with an ther, a solicitor practising as tuted and a settlement had been Law Society of Ireland undertaking dated 29 Janu- a partner in Kilfeather Keyes reached, when this was untrue (applicant) ary 2008 furnished to Bank of Solicitors at 12 Market Street, and no proceedings had been David Doyle (respondent Ireland Mortgages in respect Sligo, and in the matter of the instituted. solicitor) of his named clients and bor- Solicitors Acts 1954-2015 [2017/ The tribunal ordered that the On 27 June 2019, the Solicitors rowers and property at Mount- DT106] respondent solicitor: Disciplinary Tribunal found the bellew, Co Galway, in respect Law Society of Ireland 1) Stand censured, respondent solicitor guilty of pro- of a named mortgage account (applicant) 2) Pay a sum of €1,000 to the fessional misconduct in that he: in a timely manner or at all. Aine Kilfeather (respondent compensation fund, 1) Failed to comply with an solicitor) 3) Pay a sum of €1,000 as a con- undertaking dated 18 May 2004 The tribunal ordered that the On 16 July 2019, the Solicitors tribution towards the whole of furnished to Bank of Ireland respondent solicitor: Disciplinary Tribunal found the the costs of the applicant.

HERE’S TO THOSE WHO CHANGED THE WORLD WHAT

Dr Elisabeth Svendsen MBE Founder of The Donkey Sanctuary WILL YOUR

IfLEGACY you want to request a copyBE? of our Leaving a Legacy guide ‘Your questions answered’ or wish to speak directly with our Legacy Team at our Sanctuary in Liscarroll, please contact: (022) 48398 [email protected]

RETURN FORM TO: Name: Mr/Mrs/Miss THE DONKEY SANCTUARY Legacy Department (LSG), Address Liscarroll, Mallow, Co. Cork Postcode Email Charity Reg. No. 20032289 www.thedonkeysanctuary.ie 0014_14_DS Law Society Gazette | gazette.ie November 2019 69 PROFESSIONAL NOTICES NOTICES

WILLS Delahunty, Thomas (deceas- RATES ed), late of Barnacole, Moon- coin, Co Kilkenny. Would any persons having knowledge of the PROFESSIONAL NOTICE RATES whereabouts of the original will RATES IN THE PROFESSIONAL NOTICES SECTION ARE AS FOLLOWS: executed by the above-named • Wills – €150 (incl VAT at 23%) deceased on 20 May 1980, who • Title deeds – €300 per deed (incl VAT at 23%) died on 2 March 2015, please con- • Employment/miscellaneous – €150 (incl VAT at 23%) tact T Kiersey & Co, Solicitors, 17 Catherine Street, Waterford; HIGHLIGHT YOUR NOTICE BY PUTTING A BOX AROUND IT – €30 EXTRA tel: 051 874366, fax: 051 870390, email: [email protected] ALL NOTICES MUST BE PAID FOR PRIOR TO PUBLICATION. CHEQUES SHOULD BE MADE PAY- ABLE TO LAW SOCIETY OF IRELAND. Send your small advert details, with payment, to: Gazette Dobson, George (deceased), Office, Blackhall Place, Dublin 7, tel: 01 672 4828, or email: [email protected]. late of ‘Tranquil’, Mountrath Deadline for December 2019 Gazette: 4 November 2019. For further information, contact the Road, Portlaoise, Co Laois. Gazette office on tel: 01 672 4828. Would any solicitor holding or No recruitment advertisements will be published that include references to ranges of post-qualification having knowledge of a will made experience (PQE). The Gazette Editorial Board has taken this decision based on legal advice that indicates by the above-named deceased, that such references may be in breach of the Employment Equality Acts 1998 and 2004. who died on 21 November 2018, please contact Rollestons, Solici- tors, 4 Wesley Terrace, Portlao- the above-named deceased please or purported to have been made the above-named deceased, please ise, Co Laois; tel: 057 862 1329, contact Keith Walsh, Solicitors, by the above-named deceased contact Robert Kiernan, tel: 086 email: [email protected] 8 St Agnes Road, Crumlin, Dub- please contact Thorpe & Taaffe 060 4782, email: robgkiernan@ lin 12; tel: 01 455 4723, email: Solicitors, 1 Main Street, Finglas, gmail.com Fleming, Patrick Anthony [email protected] Dublin 11; DX 8005; tel: 01 834 (deceased), late of Curragh- 4959, email: david@thorpetaaffe. Shanahan, John (deceased), previn, Rathcormac, Fermoy, Co Kelleher, Neil (deceased), late ie late of 10 St John Paul’s Terrace, Cork, who died on 21 July 2019. of 49 Seabury, Sydney Parade Broadford, Co Limerick, who Would any person having knowl- Avenue, Sandymount, Dublin Munir, Samie (deceased), late died on 17 December 2017, a edge of the whereabouts of any 4, who died on 10 September of 51 Rosehaven, Carpenter- retired FÁS supervisor. Would will made or purported to have 2019. Would any person having stown Road, Castleknock, Dublin any person having knowledge of been made by the above-named knowledge of the whereabouts 15, and previously of 97 Foxlodge a will made by the above-named deceased, or if any firm is hold- of any will made by the above- Manor, Ratoath, Co Meath, who deceased please contact Marie ing same, please contact Healy named deceased please contact died suddenly on 30 September Ford Solicitors, Avondale House, Crowley & Co, Solicitors, West Anne-Marie Linehan, solicitor, 2019. Date of birth: 19 Decem- Clanchy Terrace, Charleville, Street, Tallow, Co Waterford; JW O’Donovan, 53 South Mall, ber 1979. Would any solicitor Co Cork; tel: 063 23952, email: tel: 058 56457, email: info@ Cork; tel: 021 730 0200, email: or person having knowledge of [email protected] healycrowleysolrs.com [email protected] the whereabouts of a will, which was made and may have been Weldon, Kenneth Joseph Hegarty, Ciaran Columcille Kenna, Paul (deceased), late amended on numerous occa- (deceased), late of 3 Richmond (deceased), late of 7 Brook Road, of 11 Hazelbury Park, Clonee, sions, or if anybody knows who Park, Wexford Town; 120 Char- Rhebogue, Limerick for the past Dublin 15. Would any person may have executed the will for lemont, Griffith Avenue, Dublin; 25 years and, prior to that, 6 Ball- having knowledge of a will made inveiltig, Curraheen, Cork, who by the above-named deceased died on 23 May 2019 and whose please contact Rochford Gibbons, date of birth was 13 May 1954. Solicitors, 16/17 Upper Ormond Would any person having knowl- Quay, Dublin 7; DX 1015; tel: 01 edge of the whereabouts of any 872 1499, email: info@johnroch- will made by the above-named ford.ie deceased please reply to box no 01/09/2019 McKenna, Stephen (deceased), late of Dromskin Village, Keane, Sheila (deceased), late of Dundalk, Co Louth, and for- 43 Mount Pleasant Drive, Clon- merly of 139 Glenwood Estate, tarf, Dublin 3, who died in or Dundalk, Co Louth, who died on about 17 March 2019. Would any 15 April 2019. Would any solici- person having knowledge of the tor or person having knowledge of whereabouts of any will made by the whereabouts of any will made 70 November 2019 Law Society Gazette | gazette.ie NOTICES PROFESSIONAL NOTICES

and 1 Boland’s Cottages, East on the other part for the term and Tenant (Ground Rents) (No within 21 days from the date of Wall, Dublin 3. Ken was a good of 193 years from 29 September 2) Act 1978 and in the matter this notice. and decent man, and we want 1858, subject to an initial annual of the premises known as The In default of any such notice to make sure that his last wishes rent of £12.18. Carraig Inn, Killincarrig, Del- being received, the applicant are fulfilled. Sadly, Ken passed Take notice that Philip Col- gany, Co Wicklow, and in the intends to proceed with the appli- away suddenly on 15 June 2018. gan and Dorothy Colgan intend matter of an application by cation before the county registrar He made an updated will with a to submit an application to the Hollybrough Limited at the end of 21 days from the Dublin solicitor in 2009 and then county registrar for the county Any person having a freehold date of this notice and will apply again in 2016. Please contact and city of Dublin for the acqui- interest or any intermediate to the county registrar for the Peggy Weldon, 14715 Yearling sition of the freehold interest in interest in all that and those the county of Wicklow for directions Terrace, Rockville, Maryland the aforementioned property and property known as The Car- as may be appropriate on the 20850, USA; tel: +1 240 506 that any party asserting a superior raig Inn, Killincarrig, Delgany, basis that the persons beneficially 5534, email: pweldon@holychild. interest in the aforementioned Co Wicklow, formerly known entitled to the superior interest org property is called upon to furnish as the Orchard Inn (hereinafter including the freehold reversion evidence of such title to the afore- called ‘the property’), held by in the property are unknown and TITLE DEEDS mentioned property to the under- the applicant under a lease dated unascertained. In the matter of the Landlord mentioned solicitors within 21 27 March 1906 made between Date: 1 November 2019 and Tenant (Ground Rents) Acts days from the date of this notice. Mary La Touche, Frances Ceci- Signed: O’Callaghan Legal (solici- 1967-2005 and in the mat- Take notice that, in default lia Archer and Charlotte Isabella tors for the applicant), Mounttown ter of the Landlord and Ten- of such notice being received, Studdert of the one part and John House, 62-63 Mounttown Road ant (Ground Rents) (No 2) Act the applicants, Philip Colgan Healy of the other part for the Lower, Dun Laoghaire, Co Dublin 1978 and in the matter of an and Dorothy Colgan, intend term of 200 years from 29 Sep- application by Philip Colgan to proceed with the application tember 1905 at a rent of £15 per In the matter of the Landlord and Dorothy Colgan, both of before the county registrar at the annum, and under a lease dated 9 and Tenant Acts 1967-2005 and Growtown, Dunshaughlin, Co end of 21 days from the date of April 1917 made between Fran- in the matter of the Landlord Meath, and in the matter of the this notice and will apply to the ces Cecilia Archer of the one part and Tenant (Ground Rents) (No property known as 381 North county registrar in the county and and Patrick Joseph O’Connor of 2) Act 1978 and in the matter Circular Road, Dublin 7 city of Dublin for such directions the other part for the term of 200 of the premises known as 7B Take notice any person having an as may be appropriate on the basis years from 25 March 1916 at a Lanesville, Monkstown, Co interest in the freehold estate of that the person or persons ben- rent of £7 per annum. Dublin, and in the matter of an the property known as 381 North eficially entitled to the superior Take note that Hollybrough application by Victor Boyhan Circular Road, Dublin 7, held interest or interests including the Limited, of 1 Terenure Place, Any person having a freehold under an indenture of lease dated freehold reversion to the afore- Terenure, Dublin 6W, being the interest or any intermediate 2 May 1860 and made between mentioned property is unknown party now entitled to the lessee’s interest in all that and those the Robert Fowler (acting as trustee or unascertained. interest in the property, intends property known as 7B Lanesville, for the Earl of Blessington) on Date: 1 November 2019 to submit an application to the Monkstown, Co Dublin (herein- the one part and Samuel Farlow Signed: Seamus Maguire & Com- county registrar for the county after called ‘the property’), held pany (solicitors for the applicants), of Wicklow for acquisition of the by the applicant under a lease 10 Main Street Blanchardstown, freehold interest in the property, dated 8 April 1938 made between Require assistance Dublin 15 and any party asserting that they Bridget Myhan of the one part in Northern Ireland have a superior interest in the and Charles MacDonald of the In the matter of the Landlord property are called upon to fur- other part for the term of 500 for the purpose and Tenant Acts 1967-2005 and nish evidence of the title to the years from 1 September 1937 at of litigation? in the matter of the Landlord property to the below named a rent of £5 per annum.

Northern Ireland lawyers, Kearney Law Group, are interested in dealing with all civil litigation claims for those who LISTEN UP! have suffered injury in Northern Ireland. Tune in to Gazette An arrangement of 50/50 is suggested. audio articles at Please contact us today to discuss further. Gazette.ie 028 7136 2299 | 028 9091 2938 [email protected] kearneylawgroup.com Belfast | Derry | Dublin | London Law Society Gazette | gazette.ie November 2019 71 PROFESSIONAL NOTICES NOTICES

Take note that Victor Boyhan of the one part and James Mulli- of 7B Lanesville, Monkstown, gan of the other part, for a term IS YOUR CLIENT INTERESTED Co Dublin, being the party now of 150 years from 25 March 1911 IN SELLING OR BUYING entitled to the lessee’s interest in at a rent of £23 per annum (‘the the property, intends to submit lease’); the lands being that part A 7-DAY LIQUOR LICENCE? an application to the county reg- of the lands demised by the lease istrar for the county of Dublin for and subsequently assigned by, and email: [email protected] acquisition of the freehold inter- more particularly delineated and web: www.liquorlicencetransfers.ie est in the property, and any party described in an assignment dated asserting that they have a superior 12 February 1976, between John Call: 01 2091935 interest in the property are called Donnellan and Mary Donnel- upon to furnish evidence of the lan of the one part and Brendan title to the property to the below O’Connor of the other part. named within 21 days from the Take notice that the applicant, gar, Dublin 6, being part of the in the aforesaid property, and any date of this notice. as lessee under the lease, intends property demised by indenture party asserting that they hold a In default of any such notice to apply to the county registrar for of lease dated 28 April 1862 made superior interest in the aforesaid being received, the applicant the city of Dublin for the acquisi- between Gerald Osbre of the first property are called upon to fur- intends to proceed with the appli- tion of the freehold interest and part, Charles Quinlan of the sec- nish evidence of their title to the cation before the county registrar all intermediate interests in the ond part, Elizabeth Osbre of the aforementioned property to the at the end of 21 days from the date lands, and any party asserting that third part and John Conroy of the below named within 21 days from of this notice and will apply to the they hold a superior interest in fourth part for a term of 200 years the date of this notice. county registrar for the county of the lands is called upon to furnish from 1 November 1861, subject In default of any such notice Dublin for directions as may be evidence of title to same to the to the yearly rent of £37 and being being received, the applicant appropriate on the basis that the below named within 21 days from part of the property subdemised intends to proceed with the appli- persons beneficially entitled to the date of this notice. by a sublease dated 1 July 1886 cation before the county registrar the superior interest including the In default of any such notice between Martin Cashin of the at the end of 21 days from the freehold reversion in the property being received, the applicant one part and Walter Gilbey and date of this notice and will apply are unknown and unascertained. intends to proceed with the appli- Henry Parry Gilbey of the other to the county registrar for the city Date: 1 November 2019 cation before the county registrar part, for the term of 150 years of Dublin for directions as may be Signed: O’Callaghan Legal (solici- at the end of 21 days from the date from 29 September 1886, subject appropriate on the basis that the tors for the applicant), Mounttown of this notice and will apply to the to the yearly rent of £50. persons beneficially entitled to all House, 62-63 Mounttown Road county registrar for the county of Take notice that Alexander superior interests including the Lower, Dun Laoghaire, Co Dublin Dublin for such directions as may MacDonald, as owner of the les- freehold reversion in the premises be appropriate on the basis that see’s interests in the said lease and are unknown or unascertained. In the matter of the Landlord the person or persons beneficially sublease, intends to submit an Date: 1 November 2019 and Tenant Acts 1967-2008 and entitled to the superior interests application to the county regis- Signed: Daly Lynch Crowe & Morris in the matter of the Landlord including the freehold reversion trar for the city of Dublin for the Solicitors (solicitors for the applicant), and Tenant (Ground Rents) (No in the lands are unknown or unas- acquisition of the freehold inter- The Corn Exchange, Burgh Quay, 2) Act 1978 and in the matter certained. est and/or any superior interest Dublin 2 of the lands adjoining 29 Dale Date: 1 November 2019 View, Ballybrack, Co Dublin: Signed: Gaffney Halligan & Co an application by Green Label (solicitors for the applicant), 413 Property Investments Limited Howth Road, Raheny, Dublin 5 of Reuben House, Reuben CONSULT A Street, Dublin 8 In the matter of the Landlord Any person having a freehold and Tenants (Ground Rents) estate or any intermediate inter- Acts 1967-2005 and in the mat- COLLEAGUE est in all that and those the lands ter of the Landlord and Tenant The Consult a Colleague helpline is available to assist adjoining 29 Dale View, Bal- (Ground Rents) (No 2) Act 1978 every member of the profession with any problem, lybrack, Co Dublin (‘the lands’) (as amended) and in the matter being currently held by Claude of an application by Alexander whether personal or professional. Fettes, Annette Cooper and MacDonald in respect of the Green Label Property Invest- premises known as 1A Orwell CALL THE HELPLINE ments Limited (‘the applicants’) Road, Rathgar, Dublin 6 under a lease dated 30 December Take notice that any person hav- 1911 between George Packen- ing any superior interest (whether 01 284 8484 ham Stewart, Amy Louise Char- by way of freehold estate or supe- WWW.CONSULTACOLLEAGUE.IE lotte Callwell, Gertrude Emma rior interest or otherwise) in the This service is completely confidential and totally Callwell, Helen Lindsay May following property: all that and independent of the Law Society Callwell and Ida Eleanor Callwell those 1A Orwell Road, Rath- 72 November 2019 FINAL VERDICT Law Society Gazette | gazette.ie

DE MINIMIS NON CURAT LEX ADVOCAT TO THE RESCUE! Brazil’s legal regulator has hired a cat, Legal Cheek reports. Proper order, says the Gazette. Dr Leon Pussifer Paws – the advocat – originally took shel- ter from a storm in the Order of Attorneys of Brazil building (the equivalent of the Law Society) last February. However, some people com- plained about the cat’s pres- ence in the reception area. In response, the body hired Leon as a ‘lawyer’. The little furry beast now welcomes visitors and has his own Instagram page. His representatives say that it’s possible he’ll get his own office, and they’re looking to set up an animal rights institute in his name. The rationale for this is But for the time being, Leon’s that, as a stray, he sustained inju- favourite spot is President Aurin- NO HALLOWEEN BONUS ries to his vocal cords that mean ey’s sofa, and he has been known “he hardly meows”. to scowl at the CEO. THIS YEAR, STACEY… A City banker has won a gender that Macken was often rudely dis- discrimination case after alleging missed by one of her bosses, who THIS JOURNALISM she was paid hundreds of thou- would brush off her questions by sands of pounds less than a male saying “not now, Stacey”. The LARK IS … OH, IT’S colleague and was the victim of a phrase was used so frequently that drunken prank that included leav- her colleagues started to use the LUNCHTIME ing a witch’s hat on her desk, the phrase sarcastically. Macken told A journalist and blogger has told Guardian reports. colleagues she was uncomfortable the BBC that someone created a Stacey Macken sued the Lon- working with her male colleagues Gmail account in his name and don office of BNP Paribas for £4m shortly after joining the bank in withdrew his job application. on the basis of unequal pay, claim- 2013, when they left a Hallow- Nicholas Fearn said that he ing she was discriminated against een-style witch’s hat on her desk had applied for a job and was due to her gender and paid signifi- after a drinking session. selected for a written assessment cantly less than a male co-worker An employment tribunal up- at the publisher’s office. with the same job title. She also held her complaints over unequal When there was no reply, he claimed she faced harassment. pay and discrimination, but dis- assumed he was unsuccessful. An employment tribunal heard missed the harassment claims. However, after emailing his con- tact there, it turned out someone see the names and assessments of had created a Gmail account in other candidates. On his Twit- THE DOGS OF WAR his name and asked the company ter account, he had tweeted the Police in the US have said that a told police that he had left his pis- to withdraw his application. company to say he had applied dog shot a woman while the car tol on the centre console when his When Fearn completed his for the role. they shared was at a train crossing. dog jumped on it, causing it to fire written assessment, he said he Could it have been another Responding officers found a round into Springer’s thigh. had to save the Word document candidate? Or was it someone 44-year-old Tina Springer in the Officers found a burn mark under his full name to a particu- else who saw his tweet? Or was passenger seat of the truck with a under the centre console, consis- lar folder. In that folder, he could it ghosts? gunshot wound. The male driver tent with the driver’s story. BARRISTERS OR SOLICITORS Required for positions as ASSISTANT PARLIAMENTARY COUNSEL (GRADE II)

The Office of the Parliamentary Counsel to the Government is a constituent part of the Office of the Attorney General and is located in Government Buildings, Merrion Street, Dublin 2.

ROLE As an Assistant Parliamentary Counsel, you will be part of a specialised team of lawyers who: n draft Government Bills, including Bills to amend the Constitution, and amendments to Bills; n draft Government Orders and some statutory instruments made by Ministers of the Government, including instruments made for the purposes of compliance with European Union obligations.

ELIGIBILITY Candidates must, on the closing date set out below: a) have been called to the Bar of Ireland and be enrolled as a Barrister in the State or have been admitted and be enrolled as a Solicitor in the State, and b) have significant experience as a practising Barrister or practising Solicitor in the State so as to enable satisfactory discharge of the duties of the position.

PANEL A panel may be established from which future vacancies may be filled. All the posts are permanent and pensionable.

SALARY PPC Scale: €67,698 to €94,441 per annum.

Closing date: 3pm Thursday, 14 November 2019.

If you would like additional information on these vacancies, please telephone the Human Resources Manager at (01) 6314000.

FURTHER DETAILS OF THE POST AND APPLICATION FORMS ARE AVAILABLE ON www.publicjobs.ie

Please note that the premises of the Office of the Attorney General have been adapted for accessibility by persons with disabilities. LAW SOCIETY GAZETTE • Vol 113 No 3 Coming of age Tumbling down Small is beautiful LAW SOCIETY GAZETTE • Vol 113 No 3 Legal education The destruction of the Law Society support throughoutComing of the age Solicitors’Tumbling Buildings down and servicesSmall is address beautiful the needs Legal education The destruction of the Law Society support lifetime of lawyers the Four Courts in 1922 of smaller practices throughout the Solicitors’ Buildings and services address the needs lifetime of lawyers the Four Courts in 1922 of smaller practices

Everything you need to run a law firm Everything you need to run a law firm Everything you need to run a law firm LAW SOCIETY €4.00 APRIL 2019 LAW SOCIETY €4.00 APRIL 2019 Dunne/0012/AJC/2018 Dunne ga ette Details & Correspondence Calendar & Tasks Financial Summary Time & Fees Office Accounting Client Funds Registers Dunne/0012/AJC/2018 Dunne ga ette Details & Correspondence Calendar & Tasks Financial Summary Time & Fees Office Accounting Client Funds Registers Save & New New Share via Forms & New More Import & Timesheet LEAP 9:41 AM 100% Close Letter Email LawConnect Precedents Comment Types... Scanning Dunne/0012/AJC/2018 - James/Agnes Dunne, Property Purchase DETAILS CORRESPONDENCE Save & New New Share via Forms & New More Import & Timesheet DETAILS & CORRESPONDENCE CALENDAR & TASKS TIME & FEES FINANCIAL SUMMARY COST RECOVERY GENERAL TRUST OFFICE LEAP 9:41 AM 100% 150017Close Letter Email LawConnect Precedents Comment Types... Scanning Search correspondence IN PROGRESS Dunne/0012/AJC/2018 - James/Agnes Dunne, Property Purchase Marian Hughes DETAILS IN PROGRESS CORRESPONDENCE Search DETAILS CORRESPONDENCE Application to change the register JL Mar 23, 2018 Buyer Mr James Dunne & Mrs Agnes Dunne DETAILS & CORRESPONDENCE CALENDAR & TASKS TIME & FEES FINANCIAL SUMMARY COST RECOVERY GENERAL TRUST OFFICE 150017 Search correspondenceStaff Application to change the purchase date IN PROGRESS LEAP 9:41 AM 100% MatterMarian Type Hughes Purchase of 14 Beech Park Avenue DETAILSMarian Hughes Created: 23/03/2018, 10:23 AM Letter to Solicitors confirming instructionsDunne JL Mar 23, 2018 IN PROGRESS CORRESPONDENCE Search From: Marian Hughes Compliance Date AML checks complete 08/03/2018. Application to change the register0012/AJC/2018 JL Mar 23, 2018 Buyer Mr James Dunne & Mrs Agnes Dunne Dunne - Purchase from Brennan Buyer DETAILS CORRESPONDENCE StaffCALENDARJL Mar 23, 2018 Application to change the purchase date Seller Tranters LLP - Ref: 67877/Brennan [email protected] 9:41 AM Mr James100% Dunne & Mrs Agnes Dunne Letter to Solicitors confirmation Matter Type Purchase of 14 Beech Park Avenue Letter to Solicitors confirming instructionsMarianJL Hughes Mar 23, 2018 Created: 23/03/2018, 10:23 AM DSearchunne Created: 23/03/2018, 11:13 AM Sellers Solicitor Dr Brian Brennan 0012/AJC/2018 From: Marian Hughes Compliance Date AML checks complete 08/03/2018. Scanned Property Plans MatterJL Type Mar 21, 2018 From: Marian Hughes Dunne - Purchase fromApplication Brennan to change the Buyerregister Mr Michael Cullen DETAILS CORRESPONDENCEPurchaseCALENDARJL of 14 BeechMar 23, Park 2018 Avenue Seller Tranters LLP - Ref: 67877/Brennan [email protected]: 23/03/2018, 10:23AM Letter to Solicitors confirmation Dunne - Documentation required for sale Mr James Dunne & Mrs Agnes Dunne Property 14 Beech Park Avenue, Foxrock, Dublin 18 From: Marian Hughes JL Mar 21, 2018 Dunne - Purchase from Brennan [email protected] Search Created: 23/03/2018, 11:13 AM Sellers Solicitor Dr Brian Brennan Compliance Created: 23/03/2018, 11:00 AM Scanned Property PlansLetter to Solicitors confirmingMatter ins...JL Type Mar 21, 2018 From: Marian Hughes Land Registry Land Registry (Dublin) Application to change theDate register AML checks complete: 01/03/20... Mr Michael Cullen Created: 23/03/2018, 11:13AM From: Marian Hughes 1 Survey Report - 14 BeechCreated: Park 23/03/2018, Avenue 10:23AMPurchaseJL of 14Mar Beech 20, Park 2018 Avenue Conveyancing Details Price: €695,000.00 Dunne - DocumentationFrom: required Marian Hughes for sale Property 14 Beech Park Avenue, Foxrock, Dublin 18 From: Marian Hughes JL Mar 21, 2018 Dunne - Purchase from Brennan [email protected] Seller Scanned Property Plans Dunne - Purchase from BrennanCompliance Created: 23/03/2018, 11:00 AM Estate Agent Greenfold Estates - Ref: 14 Beech Park... Completion StatementLetter to Solicitors confirmingDr Brian JLins... Brennan Land Registry Land Registry (Dublin) Created: 23/03/2018, 11:00AM Mar 19, 2018 Created: 21/03/2018, 10:43 AM Created: 23/03/2018, 11:13AMDate AML checks complete: 01/03/20... From: Marian Hughes 1 Mr Brian Brooks Survey Report - 14 BeechFrom: Marian Park Hughes Avenue JL 1 Mar 20, 2018 From: Marian Hughes Conveyancing Details Price: €695,000.00 From: Marian Hughes Telephone with Client - advised of possib...SellersJL Solicitor Lender HSBC Bank - Ref: Dunne/87876566/... Scanned Property Plans Seller Mar 18, 2018 Scanned Property Plans Dunne - Purchase from BrennanTranters LLP - Ref: 67877/Brennan Estate Agent Greenfold Estates - Ref: 14 Beech Park... Completion StatementCreated: 21/03/2018, 10:43AM Dr BrianJL Brennan Dunne - Documentation required Created: 23/03/2018, 11:00AM Mar 19, 2018 Created: 21/03/2018, 10:43 AM Bank Details Account Number: 56791572 From: Marian Hughes Created: 21/03/2018, 11:22 AM Mr Brian Brooks Letter to Lender sendingFrom: Report Marian Hughes on Title PropertyJL 1 Mar 16, 2018 From: Marian Hughes Sellers Solicitor From: Marian Hughes Local Authority City of Dublin Council Telephone with ClientDunne - advised - Documentation of possib... required...JL 1 APRIL 2019 Lender HSBC Bank - Ref: Dunne/87876566/... Scanned Property Plans14 Beech Park Avenue,Mar 18, Foxrock, 2018 Dublin 18 Purchase from BrennanCreated: 21/03/2018, 11:22AM Tranters LLP - Ref: 67877/Brennan Created: 21/03/2018, 10:43AM JL Dunne - Documentation required Local Authority Details District: Dublin From: Marian Hughes 1 Mar 15, 2018 Bank Details Account Number: 56791572 [email protected] From: Marian Hughes Survey Report - 14 Beech Park Avenue Letter to Lender sending Report on TitleLandJL Registry Created: 21/03/2018, 11:22 AM Property Mar 16, 2018 Created: 20/03/2018, 2:50 PM Survey Report - 14 BeechLand Park... Registry (Dublin) From: Marian Hughes Local Authority City of Dublin Council Dunne - Documentation required... 1 APRIL 2019 Created: 20/03/2018, 2:50PM 14 Beech Park Avenue, Foxrock, Dublin 18 From: Marian Hughes Purchase from BrennanCreated: 21/03/2018, 11:22AM From: Marian Hughes JL Local Authority Details District: Dublin [email protected] From: Marian Hughes 1 Mar 15, 2018 Land Registry Survey Report - 14 Beech Park Avenue Created: 20/03/2018, 2:50 PM Survey Report - 14 BeechLand Park... Registry (Dublin) Created: 20/03/2018, 2:50PM From: Marian Hughes From: Marian Hughes

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