Safe as houses Chairman of the board Cheque, mate? The implications of the new The Gazette speaks with The 2017 Mediation Bill planning and residential Philip O’Leary, the Legal will bring new obligations tenancies legislation Aid Board’s chairman – and opportunities gaLAW SOCIETY ette€4.00 MAY 2017

TICKING WINNER TIME BOMB? Top tips for mitigating firms’ cyber-risks gaLAW SOCIETY ette

IMPORTANT NOTICE FOR ONLINE READERS In order to enhance your enjoyment of the online, interactive version of the Gazette, readers are strongly advised to download the magazine first to their computer or device.

Prior to downloading the Gazette, make sure that you are using the most up-to-date versions of your favourite browser, for example, Internet Explorer, Safari, Firefox or Chrome. Does your client have a claim eligible for ASR Hip ADR?

The ADR Process gives claimants a neutral non-binding evaluation of eligible claims

How it works

To apply, submit a completed Form B to McCann FitzGerald solicitors. Form Bs are available from McCann FitzGerald and from www.hipadr.ie. On receipt of Form B McCann FitzGerald may ask for additional information or documents, such as necessary medical records or details of any special damages claimed. If the claimant’s case is eligible, Form B will be endorsed and returned to the claimant’s solicitor. Both parties prepare written submissions which are submitted to an independent Evaluator who issues a written evaluation stating the amount of any damages assessed. The parties have 45 days to accept or reject the evaluation.

• Claimants in the ADR Process do not have to • Evaluators are senior counsel or retired prove liability; only causation and quantum are Superior Court judges relevant • A €25,000 payment in respect of the claimant’s • There is no fee to submit a claim to the ADR legal costs, outlay and VAT will be paid within Process 28 days of settlement of claims within the ADR Process. This is without prejudice to a claimant’s • If necessary, McCann FitzGerald will collect right in the circumstances of a case to seek the claimant’s medical records where written higher costs and outlay through negotiation or authorisation has been provided taxation

Eligible claims

Claimants may avail of the ADR Process if:

• Proceedings have issued • Injuries Board authorisation has been obtained

• The index surgery of the ASR product took place • The claim is not statute barred in Ireland • Revision surgery was not exclusively due to • Revision surgery took place in Ireland not earlier dislocation; trauma; infection; fracture of the than 180 days and not later than 10 years after the femoral head; or any issue related to the femoral index surgery stem

For further information, or to discuss settlement of any eligible claim, please contact McCann FitzGerald (DFH/RJB) on 01 829 0000 or email [email protected] Law Society Gazette | gazette.ie PRESIDENT’S MESSAGE May 2017 1

THE ‘B’ WORD

his is my fourth president’s While we can’t be surprised, we need to be message and, up until now, clear that there is no easy answer to what is not I haven’t mentioned the ‘B’ exclusively an Irish problem. The centralisation word. You know the one. Brexit. of economic activity in big cities is a global You may have heard of this phenomenon, and its effects are felt throughout phenomenon. The good news is the working world. that you will be hearing about it for many more However, we are acutely conscious of how years to come. Nearly a year after the vote, we difficult many practitioners, particularly those Treally are none the wiser about how it’s going to in smaller practices, continue to find the post- affect us, both as a nation and as a profession. recession era. It’s an issue that remains on our Which is not to say we are not trying to agenda, and we will continue to provide as much pick up as much information as we can. Much assistance as possible. rumour and counter-rumour surrounds which In other news, the seemingly never-ending firms may or may not be setting up here, as insurance industry propaganda to cover up they try and escape the damage that Britain has their huge increases in premiums, and to seek inflicted on itself. What we do know is that just to place the blame anywhere but on themselves, over 1,000 solicitors to date have entered the rumbles on in what now feels like a Groundhog Roll in this jurisdiction since the vote – though, Day cycle. I appeared on Claire Byrne Live on at the time of writing, less than a quarter have 10 April, where Kevin Thompson, CEO of taken out practising certificates, and no firms Insurance Ireland, rolled out further platitudes have yet established here. In view of the uncertainty and the interest of the profession in this issue, the director general and I are embarking on a series of meetings WE ARE ACUTELY CONSCIOUS OF HOW in London, Brussels, and Paris to attempt to broaden our knowledge of what plans may or DIFFICULT MANY PRACTITIONERS, may not be afoot, and whether the anticipated influx is real or speculative. PARTICULARLY THOSE IN SMALLER PRACTICES, CONTINUE TO FIND Dublin v rural divide Closer to home, though, the divide between THE POST-RECESSION ERA Dublin and the rest becomes more defined. The managing partner survey carried out by the Society last year was the subject of a presentation by David Rowe of Outsource, and it confirmed about why it’s all because damages are too high what we know has been a growing problem. Like – and not because the insurers are stockpiling, most economic activity, more and more legal correcting erroneous reserving, or because of work is focused in Dublin and, as a result, the poor underwriting. percentage of solicitors based in the capital keeps While the latter is, of course, the case – and rising. government knows this – it would appear that The upshot is that, inevitably, Dublin the media are happy to let the insurers have a appears to be making a quicker recovery from platform to deflect attention from themselves. the recession, in general, than outside of the Frustrating as this is, we will continue to tell Pale. While, of course, there are exceptions on the truth and fight for victims’ rights to be both sides to this, it is a consistent finding in the compensated fairly.

report, which will be the subject of an article in A little like death, taxes, and Brexit, the STUART GILHOOLY, the June Gazette, outlining its key findings. insurance debate may always be with us. PRESIDENT 2 May 2017 CONTENTS Law Society Gazette | gazette.ie

50 26 22 LAW SOCIETY GAZETTE • Vol 111 No 4 Safe as houses Chairman of the board Cheque, mate? The implications of the new The Gazette speaks with The 2017 Mediation Bill planning and residential Philip O’Leary, the Legal will bring new obligations tenancies legislation Aid Board’s chairman – and opportunities COVER STORY

gaLAW SOCIETY ette€4.00 MAY 2017 36 Terror from beyond! 46 Separation anxiety With so much noise around The folly of Brexit may be visited on divorcing MAY 2017 cybersecurity, what practical steps couples where there is an interjurisdictional can solicitors take to address the threat dispute involving Britain – this will not only of cyberattacks? Simon Collins draws affect wealthy litigants, but also those who can TICKING WINNER

Law Society of Ireland TIME BOMB? his ray gun least afford it. Keith Walsh explains Top tips for mitigating firms’ cyber-risks COVER: GETTY IMAGES/ NUALA REDMOND 50 Mediation nation FEATURES The Mediation Bill 2017 was published on 13 February and contains new and significant obligations for solicitors – but it also brings 42 Planning ahead? opportunities. Richard Lee reports The Planning and Development (Housing) and Residential Tenancies Act 2016 is the first in a series of reforms designed to 54 Lost in translation reduce delays and create certainty in new The work of legal translators is an important housing development planning. Peter and growing area in Ireland. Annette Schiller Stafford checks the snaglist discusses best practice when working with them

Law Society Gazette Volume 111, number 4 Subscriptions: 65 ( 95 overseas) gaLAW SOCIETY ette € € Blackhall Place, Dublin 7. Tel: 01 672 4828, fax: 01 672 4801, email: [email protected] Editor: Mark McDermott FIIC Deputy editor: Dr Garrett O’Boyle PROFESSIONAL NOTICES: send small advert details, with payment, to: Gazette Art director: Nuala Redmond Office, Blackhall Place, Dublin 7, tel: 01 672 4828, or email: [email protected]. Editorial secretary: Catherine Kearney All cheques should be made payable to: Law Society of Ireland Printing: Turner’s Printing Company Ltd, Longford

COMMERCIAL ADVERTISING: contact Seán Ó hOisín, 10 Arran Road, Dublin 9, Editorial board: Michael Kealey (chairman), mobile: 086 811 7116, tel: 01 834 6891, email: [email protected]. Mark McDermott (secretary), Patrick Ambrose, See the Gazette rate card online at www.lawsociety.ie/gazette-rates William Aylmer, Aoife Byrne, Mairéad Cashman, Hilary Forde, Richard Hammond, Teri Kelly, Tracy HAVE YOU MOVED? Members of the profession should send change-of-address details to: Cruikshank, Patrick J McGonagle, Aisling Meehan, IT Section, Blackhall Place, Dublin 7, or to: [email protected] Heather Murphy, Ken Murphy, Andrew Sheridan Law Society Gazette | gazette.ie CONTENTS May 2017 3

66 24 42

REGULARS IN-HOUSE CONTENT 32 Human rights watch: Applications Content of interest to in-house 4 The big picture for international protection and public sector solicitors in Standout photo of the month this month’s Gazette: Books 14 What happens if the in-house News 58 solicitor obtains an order for 6 The Law of Personal Injuries (second edition); costs as part of the judgment and Walsh on Criminal Procedure of the court in the matter – 16 People are these costs recoverable? 61 Obituary 22 Profile Paul Hannon Philip O’Leary 62 Briefing 24 Comment 62 Practice notes 24 Viewpoint: Costs – interim payments 64 Regulation 26 Viewpoint: Blanket anonymity rules 66 Eurlegal: Letting the cat out do not apply to discrimination decisions of the industrial bag

28 Analysis 69 Professional notices 28 News in depth: Report on the Law Society 72 Skillnet’s Symposium and Spring Gala 72 Final verdict

No material from the Gazette may be published FSC independently certified wood and paper GET MORE AT or used without the permission of the copyright products used by the Law Society Gazette holder. The Law Society of Ireland can accept no come from ecologically managed forests. Visit: www.fsc.org www.lawsociety.ie responsibility for the accuracy of contributed articles Gazette readers can access back issues of the or statements appearing in this magazine, and any PEFC certifies that wood and paper products magazine as far back as Jan/Feb 1997, right views or opinions expressed are not necessarily those used by the Law Society Gazette are sourced of the Law Society’s Council, save where otherwise by suppliers from sustainable, managed up to the current issue at www.gazette.ie. indicated. No responsibility for loss or distress forests. Visit: www.pefc.org occasioned to any person acting or refraining from You can also check out: The Law Society Gazette is a full participating acting as a result of the material in this publication • Current news member of the Press Council of Ireland and can be accepted by the authors, contributors, editor M supports the Office of the Press Ombudsman. R • Forthcoming events, as well as the fully s e e or publishers. The editor reserves the right to make cy in This scheme, in addition to defending the cle Magaz interactive version of the Gazette and the publishing decisions on any advertisement or article freedom of the press, offers readers a quick, magazine’s indices submitted to this magazine, and to refuse publication fair and free method of dealing with com- • Employment opportunities plaints that they may have in relation to arti- or to edit any editorial material as seems appropriate cles that appear on our pages. To contact the • The latest CPD courses to him. Professional legal advice should always be Office of the Press Ombudsman go to: www. … as well as lots of other useful information sought in relation to any specific matter. pressombudsman.ie or www.presscouncil.ie. 4 May 2017 NEWS Law Society Gazette | gazette.ie

THE BIG PICTURE PIC: KCNA Law Society Gazette | gazette.ie NEWS May 2017 5

FREUDIAN FIELD DAY North Korea performed its largest-ever long-range artillery firing drill on 25 April 2017, in a demonstration by the Korean People’s Army. The government reportedly deployed aircraft and submarines in the drill, which simulated an attack on ‘enemy warships’. The war games were observed by Dear Respected Comrade Kim Jong-un, Supreme Leader of the Glorious Democratic People’s Republic of Korea, to celebrate the 85th anniversary of the People’s Army 6 May 2017 NEWS | NATIONWIDE Law Society Gazette | gazette.ie

COMPILED BY KEITH WALSH, PRINCIPAL OF KEITH WALSH SOLICITORS

DONEGAL CORK LIMERICK SKILLNET WILLING WAYS LIMERICK GOES MEMBERS’ NORTH UPDATE

The travelling roadshow that is The Strand Hotel in Limerick will Law Society Skillnet pulls into be the venue for the Skillnet Lough Eske Castle Hotel on 29 cluster event on 16 June 2017. and 30 June 2017. Topics will in- Well-known criminal practitio- clude practice management and ner Darach McCarthy will speak regulation, managing your office, on road-traffic and drink-driving understanding what professional- offences, James V Woods will ism really is, avoiding conveyanc- deal with liquor licensing, Felix ing pitfalls, civil litigation update, McKenna (retired chief bureau a guide to data protection, acting officer of CAB) will give an en- for the elderly, new costs obliga- forcer’s perspective on anti- tions under section 150, and a money-laundering, while Anne panel of experts giving convey- Stephenson will deal with pro- ancing updates. Ten hours of CPD bate matters. Margaret Walsh are on offer and, even if you are (Sheil Solicitors) and Catherine not based next or near Donegal, Southern Law Association CPD coordinator Julie Rea has set a hectic pace with O’Flaherty (Regulation Depart- it looks like an enticing confer- her programme for the year. Recent successful seminars have included ‘VAT ment, Law Society) will deal with ence, given the quality of the ac- on property’ (Stephen Gahan), and ‘Wills and probate’ (organised by the SLA, acting for the elderly and the new in conjunction with STEP). Grainne Duggan BL addressed the topic of how to commodation and speakers. To challenge a will, while Carol Jermyn provided a practical guide to common pro- contract for sale and requisitions book your place, contact skilnet- bate queries. Pictured are Carol Jermyn (Carol Jermyn & Co), Joan Byrne (vice- on title. To book your place, con- [email protected]. president, SLA) and Grainne Duggan BL tact [email protected].

GALWAY FAMILY LAWYERS CONVENE IN CITY OF THE TRIBES An afternoon of family law updates dates should be noted in your diary: the maximum possible number Eyre Square, Galway) or Cairbre and three hours of CPD are prom- • Friday 26 May, 2pm, Galway of CPD events during the year. O’Donnell (John C O’Donnell ised by the Galway Solicitors’ Bar Courthouse (four hours’ general) Payment can be sent to James & Son, Solicitors, Mary Street, Association (GSBA) on 16 June. – medical negligence seminar: Seymour (Berwick Solicitors, 16 Galway). GSBA sources tell ‘Nationwide’ updates on medical negligence that at least half of the Law Soci- will be provided by John Scurr DUBLIN ety’s Child and Family Law Com- (consultant general/vascular sur- mittee will be in Galway to deliver geon and Medico Legal Cham- papers on the Child and Family bers Ireland Ltd), BREAKTHROUGH ON Relationships Act 2015, pensions • Friday 16 June, 2pm, in Galway in family law, recent case law up- Courthouse (four hours’ general) LEGAL COSTS date, as well as the likely impact of – update from the Law Society’s Dublin solicitors have been con- Mr Justice Peter Kelly has re- Brexit on family law. A big turnout Child and Family Law Commit- gratulating DSBA president cently issued a practice direc- is expected, so interested delegates tee on all aspects of family law. Áine Hynes for the association’s tion on this topic, which should are advised to contact the GSBA at recent success in suggesting a prove to be of great practical the earliest opportunity. The GSBA would encourage all solution that would permit pay- assistance to practitioners who, As part of the GSBA’s plan to members to send in their annual ments on account to be made in of late, have suffered significant hold up to 40 hours of free CPD subscription of €50 per solicitor High Court cases. delays and backlogs in the taxa- during 2017, the following CPD to allow the association to provide President of the High Court tion of costs system (see p24). Law Society Gazette | gazette.ie NEWS | REPRESENTATION May 2017 7

NEWS FROM THE LAW SOCIETY’S COMMITTEES AND TASK FORCES

FAMILY AND CHILD LAW COMMITTEE GUARDIAN AD LITEM SUBMISSION The Law Society’s Family and Child Law Committee has called for an urgent amendment of the proposed guardian ad litem (GAL) system. In its submission to the Oireachtas Joint Com- mittee on Children and Youth Affairs on 6 April, the committee conveyed its recommendations on the reform of the service, as provided for in the General Scheme of the Child Care (Amend- ment) Bill 2017. Keith Walsh (committee Sinead Kearney (ByrneWallace), Denise Kirwan (Comyn Kelleher Tobin), Children’s Ombudsman Dr Niall Muldoon, Josepha chair) and Carol Anne Cooli- Madigan TD, Keith Walsh (chair, Child and Family Law Committee), Carol Ann Coolican (Legal Aid Board), Naomi Kennan can (former chair) presented the (policy officer, Ombudsman’s Office) and Cliona O’Neill (director of policy, ISPCC) submission on behalf of the Law Society. The full submission is cific inclusion of the criteria to respect of service providers, vision of information to the at www.lawsociety.ie/Solicitors/ be assessed in determining the • A recommendation for a com- GAL, and reports prepared by Representation. best interest of children, as set prehensive list of criteria for the GAL for the courts. As a matter of urgency, the out in section 31 of the Guard- establishing the best interests Society has called on the Oireach- ianship of Infants Act 1964 (as of the child, Members of the Child and Fam- tas Joint Committee to address inserted by section 63 of the • A strengthening in relation to ily Law Committee, specifically three priority issues: Child and Family Law Act 2015), the qualification of the GAL, Sinead Kearney, Denise Kirwan • Arising from article 42A.4.2 regarding cases involving chil- • The Society recommends the and Geraldine Keehan attended of the Constitution, there is dren in private law matters. introduction of a fee structure the subcommittee hearing. The a legislative presumption that for both GALs and their legal committee wishes to thank all a child is entitled to a guard- The Society made 12 recommen- representatives and regular members who contributed to the ian ad litem in every case, in- dations in relation to the general audits of files and accounts, in submission, including Cormac Ó cluding reviews. The current scheme, including the following: addition to clarity on the dis- Culain and Derek Owens for their scheme needs to be amended • The necessity for a national cretion of the courts, and assistance. The committee will to reflect this presumption and guardian ad litem service, • Careful consideration is continue to make submissions and to impose an obligation on the • Greater clarity of roles, in required in relation to the pro- advocate on this issue. courts to appoint a guardian ad litem. The scheme, as drafted, LITIGATION COMMITTEE gives discretion to the Circuit and District Courts on such appointment. PAYMENT ON ACCOUNT PENDING • The establishment of an inde- TAXATION OF COSTS pendent agency to manage the guardian ad litem service; such From 24 April 2017, it will be direction ‘HC71 – Payment on Ac- order, the solicitor for the suc- an agency to be an independent possible to seek an order direct- count of Costs Pending Taxation’. cessful party must undertake non-departmental body that is ing payment of a reasonable sum This direction provides that such that, in the event of taxation also independent of the parties on account of costs, pending the orders may be made in all cases realising a smaller sum than that (Tusla). This is the approach taxation of such costs. where there is no dispute as to directed to be paid on account, adopted in our neighbouring In recognition of the long the liability for the payment of such overpayment will be repaid. jurisdiction. delays experienced in the taxa- costs, and in any other case which For more information, see • The scheme, as drafted, would tion of costs, the President of a judge thinks appropriate. p24 and the President’s Bulletin be greatly enhanced by the spe- the High Court issued practice In order to obtain such an of 13 April. 8 May 2017 NEWS | BRIEFS Law Society Gazette | gazette.ie

IRISH CENTRE FOR HUMAN RIGHTS GETTING APPOINTS DIRECTOR YOUR TAX NUI Galway has appointed Prof tion of vice-head of the College RIGHT Siobhán Mullally as the estab- of Business and Law. She was lished professor of human rights recently elected president of the Small and Expanding Businesses: law and director of the Irish Cen- Council of Europe expert group Getting the Tax Right is the title tre for Human Rights at NUI on human trafficking, is a com- of a new book by Kerri O’Connell Galway. Prof Mullally will take missioner of the Irish Human (fellow of Chartered Accountants up her post in September 2017. Rights and Equality Commis- Ireland), writes Fintan Price. It is Mullally is currently a profes- sion, and a member of the Per- described as a “guide to the tax sor at the School of Law (UCC), manent Court of Arbitration in issues typically encountered by where she also holds the posi- The Hague. small and expanding businesses”. The book examines the tax implications for small businesses in the areas of VAT, income tax FLAC SUCCEEDS IN MOUNTJOY on business profits earned by a ENFORCEMENT CASE RELEASE sole trader or partnership, pay- roll taxes, and corporation tax on A man has been released from after serving two nights. FLAC FLAC chief executive Ei- business profits earned by com- Mountjoy on bail following an claimed that the judge had lis Barry called on the Minister panies. It includes case studies application by FLAC that point- failed to apply two safeguards for Justice to sign the statuary and explains tax issues faced by ed out a failure to adhere to required under legislation: that instrument to bring the Civil businesses, with worked exam- debt enforcement law, writes legal aid must be offered to the Debt (Procedures) Act 2015 into ples. Published by Chartered Ac- Fintan Price. debtor, and that a judge may effect as a matter of urgency. countants Ireland, it retails at €45. The man had failed to make not make any order to imprison court-ordered instalment pay- unless he or she is satisfied that ments on judgment debts and the creditor has shown beyond NEW MCCANN CHAIR had been sentenced to a week in a reasonable doubt that the prison on 21 March. debtor failed to pay, due to his An application to the or her “wilful refusal or culpable High Court led to his release neglect”. CORK FIRM EXPANDS PIC: ROB LAMB

Pictured are Prof Joseph McMahon (dean of the Sutherland School of Law), Prof James Devenney, Prof Imelda Maher (deputy dean) and Barry Devereux (manag- ing partner, McCann FitzGerald)

James Devenney is the new Commenting on the lecture, McCann FitzGerald Chair of Barry Devereux (managing part- International Law and Business at ner, McCann FitzGerald) said: UCD’s Sutherland School of Law. “James is widely recognised as a Prof Devenney delivered his inau- world-leading expert on transac- gural lecture entitled on 6 April tional commercial law. At McCann Cork commercial law firm O’Flynn Exhams Solicitors continues to expand, with the 2017. He reflected on four recent FitzGerald, we are very proud to appointment of two new partners. Des Lynch is now partner in the private client cases that fundamentally alter our have him represent our firm in the team, while Tom O’Byrne is a partner in the litigation and dispute resolution team. understanding of contract law and legal educational world and we O’Flynn Exhams is the largest city-centre law firm in Cork, currently employing 45 people. Pictured outside the firm’s South Mall offices are Des Lynch (partner), have wide-reaching implications look forward to building on our Richard Neville (managing partner) and Tom O’Byrne (partner) for lawyers and businesspeople. ongoing support of the chair.” Law Society Gazette | gazette.ie NEWS May 2017 9

CRACKDOWN ON ‘CLAIMS HARVESTING’ SITES Since 2014, a total of 17 ‘claims harvesting’ websites have been taken down as a result of Law Society investigations. Claims harvesting websites gather and sell information for potential in- jury claims to panels of solicitors – and the Society has been swift in cracking down on such illegal activity. Solicitors connected with claims harvesting sites face a range of sanctions, including reprimands and a formal direc- tion that all future advertising must be approved by the Soci- ety for a period of three years. Late last year, the Law unqualified person from acting 18 proceedings continue before In certain instances, referrals Society began proceedings and/or pretending to be a solici- the High Court and are being have been made to the Solici- against two claims harvesting tor and from publishing adver- defended by the respondents. tors Disciplinary Tribunal on websites that are owned and op- tisements relating to services of The Law Society enforces the grounds of professional mis- erated by non-solicitors. Such a legal nature “that could other- the Solicitors (Advertising) Regula- conduct. litigation was the first of its kind wise be provided by a solicitor, tions 2002 through the advertis- The Society is sensitive to for the Society and was brought for or in expectation of a fee, ing regulations division of the concerns raised by members under section 18 of the Solicitors gain or reward”. Regulation of Practice Com- about these sites and regards (Amendment) Act 2002. The order also directed mittee. The regulations govern them as a scourge for the vast In Law Society v Accident that Mr Russell must cease any the manner in which solicitors majority of practitioners who Claims Helpline Ltd, the High involvement and/or connection advertise their professional ser- struggle to compete with them. Court ordered the permanent re- and/or association and/or op- vices. They are interpreted and Director general Ken Murphy moval of the harvesting website eration of or with the website or applied by the Society in such a said: “One of the difficulties ‘accidentclaimshelpline.ie’ and any similar website operating in way that, while not representing is finding out who, exactly, is prohibited the owner of the web- breach of the Solicitors Acts. a ban on advertising activities, behind such advertising. The site, Mr Anthony Russell, from During the proceedings, the is robust and clearly delineated, degree of anonymity offered by future contravention of, among President of the High Court thereby ensuring that a level such websites can be a source other things, section(s)55 and/or remarked that he would make playing field is maintained across of great frustration, but the 56 of the Solicitors Act 1954 (as orders “bringing an end to claims the profession. Law Society has put significant amended) and/or section 5 of the harvesting, a practice which is as Since January 2014, over resources into identifying those Solicitors (Amendment) Act 2002. unattractive as its name”. 500 alleged breaches have been involved.” These sections prohibit an The second set of section considered by the Society. The vast majority of these matters related to solicitor firms’ web- sites. The solicitors responsible GEN UP ON THE GDPR were overwhelmingly coop- The General Data Protection Reg- Protection Committee is organ- ger (Mason Hayes & Curran), erative and quick to address the ulation (GDPR) is due to come into ising a seminar in June, titled Elaine Morrissey (McDowell Pur- apparent breaches, once notified. effect in 2018. It will strengthen ‘Data protection: the GDPR – an cell) and Seamus Carroll (Depart- Further, the Society has en- and unify data protection within introduction’. The aim is to pro- ment of Justice). gaged a media monitoring com- the EU and address the export vide a practical overview and The seminar will take place pany to examine print media at of data outside the EU. Practitio- introduction to the provisions of at the Law Society on 8 June, local and national level to iden- ners will need to be ready to give the GDPR. Speakers will include 3-5pm, and will end with a com- tify advertising in violation of advice to their clients on the im- Ann Henry (chair of the Intellec- plimentary drinks reception. For the rules introduced by the 2002 plications of these new rules. tual Property and Data Protec- more information and to book, legislation. In 2016, a total of 19 To that end, the Law Society’s tion Committee), Paul Lavery see www.lawsociety.ie or email such advertisements resulted in Intellectual Property and Data (McCann FitzGerald), Peter Bol- [email protected]. investigations being opened. 10 May 2017 NEWS Law Society Gazette | gazette.ie

CIVIL JUSTICE SYSTEM SET FOR A SHAKE-UP Justice minister Frances Fitzger- other court documents should ald has announced a major review be available or accessible on the and reform of the administration internet, and of the civil justice system, aiming • Identify steps to achieve more to “deliver a more efficient and effective outcomes for court effective Irish legal system in re- users, with particular empha- gard to the area of civil justice”. sis on vulnerable court users, A review group chaired by Mr including children and young Justice Peter Kelly will examine persons, impecunious litigants the current system and report to who are ineligible for civil legal the Tánaiste within two years on aid, and wards of court. how to: • Improve access to justice, The group’s remit is currently be- • Reduce the cost of litigation, ing finalised, but will take into ac- including costs to the State, count other work and initiatives • Improve procedures and prac- already carried out, such as the tices in order to ensure timely 2010 report of the Law Reform hearings, Mr Justice Peter Kelly will chair the review group Commission on Consolidation and • Remove obsolete, unnecessary Reform of the Courts Acts, as well or over-complex rules of pro- • Encourage alternative methods methods of communications, as the legal costs provisions of the cedure, of dispute resolution, • Examine the extent to which Legal Services Regulation Act 2015, • Review the law of discovery, • Review the use of electronic pleadings and submissions and among others. ECJ CLARIFIES HEADSCARF BAN

Following the publication of ‘Bur- to remove one particular item of Court of Cassation for review. kinis in Bundoran‘ (see the March apparel, however offending, will It will not be regarded as indi- Gazette, p50), the European remain discriminatory unless the rect discrimination, however, if Court of Justice has addressed policy is applied equally. “it was justified by a legitimate similar factual circumstances The court did indicate there aim and if the means of achiev- in the Achbita and Bougnaoui may be a form of indirect dis- ing that aim were appropriate cases (C-157/15 and C-188/15 crimination, and this matter was and necessary”. The test for this respectively), which were widely referred back to the Belgian was left to the local court. publicised. Prior to the court’s decision, there were two contrasting opin- ions from different advocates MATHESON APPOINTS general (see the opinion of AG 12 NEW PARTNERS Sharpston handed down on 13 discrimination in the employers’ July 2016 in Bougnaoui, which employment policy and manifes- Matheson has appointed 12 new Gleeson (banking and finan- contrasts with the earlier opin- tations of religion, rather than partners, in its largest partner pro- cial services), Stuart Kennedy ion of AG Kokott in the Achbita human rights pleas. motions round in over a decade. (asset finance), Brian McClos- case) in similar headscarf matters The Court of Justice, while The firm says that the appoint- key (corporate M&A), Madeline before the European Court of referring the matters back to the ments “reflect demand for advice McDonnell (corporate M&A), Justice, which produced differ- local courts for implementation, in both traditional and emerging Claire McLoughlin (commercial ent outcomes. allowed for the banning of vis- disruptive fields in a post-Brexit litigation and dispute resolution), Both cases involved Muslim ible religious symbols; however, world”. Barry O’Connor (asset manage- women who were employed by the entire regime of the employ- The new partners are Mat- ment and investment funds), private sector employers, and er must be taken into account. thew Broadstock (tax), Emma Donal O’Donovan (banking), wore headscarves only, rather The policy on such apparel Doherty (corporate interna- Karen Reynolds (commercial liti- than any full-face coverage. They must essentially ban all forms of tional business), Leonie Dunne gation and dispute resolution) and specifically dealt with pleas of religious apparel – the direction (commercial real estate), Laura Kevin Smith (tax). Law Society Gazette | gazette.ie NEWS May 2017 11

MOOC SPOTLIGHTS EMPLOYMENT LAW IN THE DIGITAL ERA ‘Employment law in the digital era’ is the theme for the Diploma Centre’s next m assive open on- line course (MOOC) on Tuesday 9 May. MOOCs are free online courses open to all and are specif- ically designed for large numbers of participants. Since their initial launch in 2014, the Diploma Centre’s MOOCs have attracted over 6,000 participants from over 60 coun- tries. These courses feature online recorded and streamed presenta- tions, together with interactive discussion forums that allow those taking part to engage directly with the courses’ expert presenters. New and emerging employ- ment law themes will be consid- ered in this latest MOOC, titled At the launch of the 2017 employment law MOOC were (from l to r): Maeve Regan (Mercy Law Centre), Loughlin Deegan ‘Employment law in the digital (ByrneWallace), Melanie Crowley (Mason Hayes & Curran), Rory O’Boyle (Law Society Diploma Centre), Oonagh Buckley era: Brexit, borders and offices (Workplace Relations Commission), Louise Harrison (William Fry) and Duncan Inverarity (A&L Goodbody) without walls – challenges and im- pacts in uncertain times’. Experts industrial relations framework that more flexible hours and spending lenge the traditional boundaries of will examine the topic through the applies in Ireland. For example, less time in the formal workplace the employment relationship. prism of the employment law and many employees are working far environment. These issues chal- In the context of Brexit, the MOOC will highlight the com- mon employment law frameworks that operate in Ireland, and Eng- HIGH COURT GUIDES MINISTER land and Wales. This common ON SECRET BALLOTS ground could give Ireland an ad-

PIC: COLLINS COURTS vantage compared with other sin- The High Court has found in is reasonably practicable. gle market countries, and should favour of a visually impaired man, The judge proposed declar- open up possibilities for British Robbie Sinnott, who sought to ing that the minister had a duty firms looking to engage staff here. vindicate his right to a secret to provide such arrangements The course will run over a ballot, reports Fintan Price. where there were no disclosed five-week period. Materials for Although the Constitution affords reasonably practicable economic weekly modules will be released the right to a secret ballot, peo- or effective reasons not to vin- every Tuesday and will comprise ple with a visual impairment have dicate the right to mark ballot short videos presentations from had to do so through a trusted papers without assistance. employment law experts, as well friend or the presiding officer. Mr Sinnott is a founding as suggested reading lists, quiz- Mr Justice Tony O’Connor member of the Blind Legal Alli- zes, and live online Q&A ses- said that the court could not Robbie Sinnott leaving the Four ance and said that the legal vic- sions. Participants who success- require the Minister for the En- Courts after his successful High Court tory was about the fundamen- fully complete the weekly tasks vironment to set up a secret bal- action tal right to vote for those who and collect four ‘badges’ may opt lot, but could declare that the face discrimination due to visual to obtain a Certificate of Com- minister had a duty to provide This is in conjunction with the impairment. Visually impaired pletion awarded by the Law So- one, due to the relevant provi- duty under the Constitution to people make up 5% of the Irish ciety of Ireland. To sign up visit: sions of the Electoral Act 1992. assure a secret ballot, as far as population. https://mooc2017.lawsociety.ie. 12 May 2017 NEWS Law Society Gazette | gazette.ie

SOCIETY SUBMISSIONS ON MATTERS OF INTEREST The Society, through its commit- Other recent submissions include: tees and with the assistance of the • Pre-legislative scrutiny of the Policy and Public Affairs depart- Childcare (Amendment) Bill ment, continues to participate in a (Family Law Committee), range of consultations, pre-legisla- • A submission to the Revenue tive hearings, and at the committee Commissioners and Department stages of a number of bills: of Finance on the operation of section 481 of the Taxes Mediation Bill 2017 Consolidation Act 1997 (Taxation The Society made a number of Committee), recommendations for amend- • A preliminary view on the ments in advance of the committee European Commission pro- stage regarding the regulation of posal for a directive on insol- mediators and the need to protect vency, debt, restructuring and the voluntary nature and confiden- second chance (Business Law tiality of the process. In addition, it and referrals in individual cases power to grant bail (Criminal Law Committee), outlined how the bill would affect (Criminal Law Committee and the Committee). • A submission to the Department the family law mediation regime Human Rights Committee). of Justice on the heads of the (ADR Committee, Family and Pre-budget submission revised general scheme of the Child Law Committee). Bail (Amendment) Bill 2017 Budget 2017 is in preparation, Criminal Procedure Bill 2015 The Society emphasised the im- and the Society recently submit- (Criminal Law Committee), Parole Bill 2016 (private portance of fair procedures in ted a menu of largely cost-neutral, • Commentary to the Department member’s bill) criminal and bail proceedings. It pragmatic changes to the taxation of Jobs, Enterprise and Six areas for consideration were made eight recommendations to codes across three main themes. Innovation on the transpo- proposed by the Society. These the Oireachtas select commit- Recommendations were made for sition of the Trade Secrets included support for the proposal tee, including safeguarding the changes to deal with inequities that Directive (2016/943) (Intellectual that a clear statutory test should role of the courts as the ultimate exist in the tax code that principally Property and Data Protection exist to determine who is eligible decision-maker regarding the re- affect the individual, but also com- Law Committee). for parole and temporary release. turn to custody of people on bail, panies; changes that are focused on Any revocation of parole should be that criminal trials are processed as keeping Ireland competitive and The Society’s main submissions decided via an independent review quickly as possible, and that a new encouraging international invest- to government departments, the hearing, which is subject to appeal. requirement where courts provide ment, and a number of administra- Oireachtas and State agencies are In addition, we argued that the reasons for granting bail does not tive or technical issues (Taxation available to view and download Parole Board should retain the interfere with an innocent person’s Committee; Probate, Administra- in the members section at www. power to make recommendations ability to access bail and the courts tion and Trusts Committee). lawsociety.ie.

FOCUS ON MEMBER SERVICES BED AND BREAKFAST AT BLACKHALL PLACE There are many benefits to being Smithfield and Museum Luas Residents can avail of free a Law Society member – including stops, the B&B is conveniently parking, with the reassuring reasonably-priced B&B accommo- located for the city centre, the presence of 24-hour security. dation at Blackhall Place. Four Courts and the Criminal Late arrivals are easily accommo- With the cost of Dublin hotel Courts of Justice. dated. Early booking is recom- rates rising, the Law Society’s The cost of a single room is mended due to the service’s pop- B&B service offers members a €45 and €65 for a double/twin ularity. Find out more at www. competitive alternative for busi- room per night (with breakfast lawsociety.ie/bandb. To check ness and leisure overnight stays. included – continental at week- availability or book a room, It’s open seven days a week, all ends). All rooms are en suite, contact Law Society reception – year round. Just a short walk with television, wi-fi and tea/ email: [email protected]; tel: from Heuston Station and the coffee-making facilities. 01 672 4800. Law Society Gazette | gazette.ie NEWS May 2017 13

HOPE IS WHERE THE CALCUTTA RUN IS! The Calcutta Run has named the HOPE Foundation as its new charity partner. The announce- ment was made on 12 April – the International Day for Street Children. HOPE joins the Peter McVerry Trust as the other main beneficiary of the charity run. HOPE has worked for 18 years providing crucial services for homeless children in Calcutta. Maureen Forrest (HOPE direc- tor) commented: “We are so de- lighted, grateful and honoured to announce a partnership with the Calcutta Run this year. This amazing event will make such an incredible difference to the chil- dren with whom we work in Cal- cutta. “We have an opportunity to send a message that an extremely vulnerable group of children need to be cared for, and that we’re listening to them. Together, with can never thank you enough for and 10k routes to choose from. new fundraising venture. The cy- your support, we can be one voice choosing HOPE.” All are welcome to walk or run. cle will be an 80k non-competitive for the voiceless and reach out The Calcutta Run takes place This year also sees the launch of event to be held on the morning to so many more children. We on Saturday 20 May and has 5k the ‘Calcutta Cycle Sportive’ as a of the run, and aims to attract par- ticipants who are passionate about this growing pursuit. BUILDING MENTAL RESILIENCE To achieve this year’s goal of €200,000, all participants are Good mental health is more than • Learn to see challenges, mis- • Recognise that a bad situation being encouraged to fundraise. the absence of a mental-health takes and failures as valuable is usually temporary. Just asking ten people for €10 problem. People are struggling learning experiences. • Build a support network – would make a huge difference to to cope with the demands of • Give yourself a pat on the make time for friends and the financial success of the event. life and are stuck on getting back when things go well. family who offer encourage- Every cent raised will go to the through the day. In the increas- Forgive yourself when things ment and strength. Consult Peter McVerry Trust and HOPE. ingly demanding and changing go wrong. supportive work colleagues. After the event, participants legal environment, resilience is • Don’t give in to negative • Don’t extrapolate one bad sit- and their families and friends important in order to thrive. It is thoughts. uation into another unrelated are invited to enjoy the Finish now recognised as an important • Use humour to defuse and situation. Line Festival at Blackhall Place, factor in the workplace. downplay difficulties. where they can enjoy a barbecue, Resilience is defined as the • Be flexible – nothing stays the LawCare supports and promotes bar, DJ, comedy, tennis and kids’ ability to resist or bounce back same, especially in the work- good mental health and well- mini-athletics. from adversity. In any work- place. being across the legal commu- Further information and an place, there will be people who • Take care of physical and men- nity. Its key support service is application form can be found at thrive on challenges and diffi- tal health – get enough sleep, its free, confidential and inde- www.calcuttarun.com. culties, while others will find it exercise and eat well. pendent helpline, and its trained Information on the Sup- harder to cope with unexpected • Take time off work, use your staff and volunteers listen and porter Firm Initiative, DX Firm change or problems. holiday entitlements and try support with any issues. Challenge, or the Cycle Sportive Here are some top tips to to take breaks during the Call 1800 991801 or visit can be had by emailing hilary@ help build resilience: working day. www.lawcare.ie. calcuttarun.com. 14 May 2017 NEWS | IN-HOUSE Law Society Gazette | gazette.ie

IN-HOUSE SOLICITORS AND RECOVERY OF COSTS In-house and public sector ing Plastics Limited (ruling of the solicitors work in many roles taxing master, 31 July 2006), in across different sectors, including which the claimant’s in-house retail, State bodies, utilities, char- litigators instructed an external ities, and commercial businesses, law firm, since the case involving writes Annelie Walsh (legal man- patent litigation was exception- ager, ESB Networks). It is not un- ally complex. The claimant was common for in-house solicitors successful and obtained an order employed by these organisations for costs. to conduct cases – often complex The bill furnished to the and long-running – either with or defendants included both the without engaging external solici- costs of the in-house solicitor and tors and/or counsel. those of the external law firm. What happens if the in-house The defendants claimed that the solicitor successfully obtains in-house solicitor was the cli- an order for costs as part of the in-house solicitors are entitled to able to the Chief State Solicitor ent in this instance, and his costs judgment of the court in the mat- recover the reasonable and neces- was not to be based on, or related should therefore be disallowed. ter – are these costs recoverable? sary costs incurred in litigation to, the salary paid – but instead Master Campbell disagreed and In Britain, the Court of Appeal cases. The leading case in this area must reflect the amount of work held that, where the tasks under- (Lloyds Bank Ltd v Eastwood and is Bank of Ireland v Lyons ([1981] done, the effort required, and the taken by the in-house legal team others [1975] 1Ch 112) took the IR 295) in which Judge Finlay set complexity of the matter at hand, can be measured and are distinct view that in-house solicitors were out the criteria by which a claim together with the other factors from those undertaken by the entitled to recover costs on an for in-house legal costs should set out in order 99, rule 37(22)(ii) external law firm, they are recov- inter partes basis, which should be supported and the factors that of the Rules of the Superior Courts erable. reflect the salary of the solicitor ought to be considered relevant – 1986. The significant increase in handling the matter, and over- including details of the number What is the position where the number of organisations heads, but excluding any element of personnel involved and time an in-house solicitor instructs employing in-house solicitors of profit. spent on the case, the overhead external solicitors, but continues – who then prosecute or defend The courts in Ireland have costs applicable to the case, and to be involved in the handling litigation on behalf of their em- taken a somewhat different the amounts incurred in relation of the case? This is exactly what ployers – is likely to lead to much approach and have concluded that to support staff. occurred in the case of Ultraframe more jurisprudence in this area in The judgment in that case (UK) Limited v Eurocell Build- the future. confirmed that the general prin- ciple applies, that is, that the Get unsuccessful party must pay the PROTECTION FOR LinkedIn costs concerned on an indem- nity basis. While the onus is on 710,000 ASYLUM SEEKERS the objecting party to argue why EU member states granted pro- times more than in 2015. Sweden certain costs ought to be disal- tection status to 710,400 refu- welcomed 69,350 asylum seek- lowed in this scenario, the party gees last year – more than double ers (double that of the previous claiming his or her costs will be that of 2015. Over half of those year). It was followed by Italy, required to produce the facts and granted protection status were which granted protection status figures supporting the calculation Syrians (405,600). Iraqis came to 35,450 refugees. of costs claimed. second with 65,800 (9%), while Ireland made 790 positive In-house and public-sector The position of the Chief asylum-seekers from Afghanistan decisions on asylum applica- solicitors are invited to State Solicitor in recovering in- totalled 61,800 (9%). tions in 2016, of which 645 were join and participate in house legal costs was considered Of the three main citizenships granted refugee status, while the Law Society’s In- in detail by the taxing master in granted protection status in Ire- 140 received subsidiary protec- house LinkedIn Group, Bula Ltd & others v Tara Mines & land, 150 were Syrians (19%), 70 tion (meaning they would not be which can be accessed others (ruling of the taxing mas- were from Afghanistan (9%), and sent back home due to the risk of at www.lawsociety.ie/ ter, 25 March 1998). In that case, 65 from Zimbabwe (8%). harm). No figures were supplied inhouselinkedin. the taxing master made it clear Germany granted protection by Ireland on decisions taken for that the instruction fee allow- status to 445,210 in 2016 – three humanitarian reasons. Law Society Gazette | gazette.ie NEWS | SOCIAL May 2017 15

THE TAXMAN COMETH – LAW SOCIETY DINNER FOR THE REVENUE COMMISSIONERS’ TOP BRASS PIC: LENSMEN

(Front): Marie-Claire Maney (assistant secretary, Revenue solicitor), Gerry Harrahill (revenue commissioner), Niall Cody (chairman, Revenue Commissioners), Stuart Gilhooly (president, Law Society), Liam Irwin (revenue commissioner), Caroline Devlin (Law Society representative, TALC); (back): Brian Doyle (assistant secretary, Revenue’s Personal Taxes Policy and Legislation Division), Patrick Bradley (Law Society representative and current chair, TALC), Ken Murphy (director general, Law Society), Richard Hammond (chair, Law Society’s Probate, Administration and Trusts Committee), Phillip Brennan (Revenue assistant secretary, Dublin Region), Patrick Sweetman (vice-chair, Law Society’s Conveyancing Committee), Cormac Gilhooly (principal officer, Revenue’s Galway-Roscommon Region), Gavin McGuire (chair, Law Society’s Taxation Committee), Declan Rigney (assistant secretary, Revenue’s Planning Division) and Mick Gladney (collector general, Revenue)

Chairman of the Revenue Com- would quickly point out – that the to cooperate in the administration a meeting on the very day that this missioners Niall Cody, his two profession does every year to col- of the taxation system and, in fact, dinner – a relaxed and social occa- fellow commissioners Liam Irwin lect money in dozens of different the Law Society and Revenue do sion designed to further improve and Gerry Harrahill, and many of ways in order to fill the coffers of this both constructively and ef- communication – was hosted by their most senior colleagues were the State? fectively. The main vehicle for the Society in Blackhall Place. the guests of the Law Society for Practising solicitors often this long-standing cooperation A former TALC chair, Caro- a special dinner on 4 April 2017. complain about the unremuner- between Revenue and the Law line Devlin (Arthur Cox), explains Chairman Cody has fre- ated tax collection obligations Society (together with others, that the important work of TALC quently referred very positively imposed on them. However, as such as the accountancy bodies) is is divided between resolving cur- to the solicitors’ profession as the Revenue correctly points out, the Taxation Administration Liai- rent issues as they arise, particu- “one of Revenue’s most impor- it is successive governments, not son Committee, known simply as larly in relation to new taxes and tant stakeholders”. And why Revenue, who make the policies in TALC. issues arising from Finance Bills, wouldn’t he value solicitors, this regard. This year, it is the Society’s and the implementation of ongo- given the vast amount of work – It is in the interests of both the turn to chair TALC and, indeed, ing longer-term projects. It’s good onerous and unpaid, as solicitors solicitors’ profession and Revenue Patrick Bradley had chaired such to talk, even with your taxman. 16 May 2017 PEOPLE Law Society Gazette | gazette.ie

INAUGURAL SPRING GALA A SHINING SUCCESS ALL PICS: ANGELA HALPIN

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LOUTH AND PROUD PIC: KEN FINNEGAN PHOTOGRAPHY

The County Louth Solicitors’ Bar Association held its AGM at Dundalk Courthouse on 10 April. The meeting was attended by President of the Law Society Stuart Gilhooly, and director general Ken Murphy. Pictured are (front, l to r): Patrick Mulcahy, Rory O’Hagan (secretary), John McGahon (treasurer), Stuart Gilhooly, Ken Murphy, Catherine MacGinley (president), Catherine Allison and Peter McGuinness; (middle, l to r): Conor MacGuill, Roger MacGinley, Donal O’Hagan, Eimear Hall, Francis Bellew, Catherine Fee, Laurence Steen, Fergus Mullen, Catherine Taaffe, Niall Lavery, Ciara Hughes, Paula Tiernan, Derek Williams, James MacGuill, Gary Matthews and Stephen Reel; (back, l to r): Elaine Grills, Olivia McArdle, Simon McArdle, Adrian Ledwith, Sharon McArdle, Barry O’Hagan, James Murphy, John Kieran and Niall O’Hagan BE BOLD FOR CHANGE! PIC: CIAN REDMOND PHOTOGRAPHY

The Irish Women Lawyers’ Association (IWLA) and the Dublin Solicitors’ Bar Association presented ‘Be bold for change!’ in collaboration with Law Society Skillnet, at Blackhall Place on 5 April. At the event were (l to r): Noeline Blackwell (CEO, Dublin Rape Crisis Centre), Karyn Harty (partner, McCann FitzGerald), Aoife McNickle (chairperson, IWLA), Ivana Bacik (senator, and Reid Professor, TCD), Josepha Madigan TD, Áine Hynes (president, DSBA), Muriel Walls (partner, Walls & Toomey Solicitors), Prof Irene Lynch Fannon (Law School, UCC) and Michelle Nolan (marketing and communications manager, Law Society Skillnet) Have you played with us yet? Because we have issues...

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In our digital issue, you can instantly access links to referenced cases and legislation, as well as pictures, video and audio. For best results, we recommend that you download the issue to your computer or device – it only takes seconds. Go on – push our buttons: it’s fun Check it out at gazette.ie Law Society Gazette | gazette.ie PEOPLE May 2017 21

ON A CLARE DAY… PIC: MARTINA REGAN PHOTOGRAPHY PIC: MARTINA

Law Society President Stuart Gilhooly and director general Ken Murphy attended a meeting of Clare Law Association (CLA) at the Old Ground Hotel, Ennis, on 11 April 2017, which was attended by (front, l to r): Marina Keane (vice-president, CLA), Mary Nolan, Stuart Gilhooly, Conor Bunbury (president, CLA), Ken Murphy, Edel Ryan (secretary, CLA) and Aisling Meehan (Council member, Law Society); (middle, l to r): Miriam Rowe, Ann Marie Browne, Leona McMahon, Laura O’Halloran (treasurer), John Halpin, Pamela Clancy, Roisin Moloney, Lorraine Burke and Sinead Glynn; (standing, l to r): Niall McDonagh, William Cahir, John Callinan, John McNamara, John Shaw, Patrick Moylan and Gearoid Williams GALWAY’S EASTER PARADE PIC: MARTINA REGAN PHOTOGRAPHY PIC: MARTINA

Following its annual Easter CPD event on 13 April at Galway courthouse, over 70 members of the Galway Solicitors’ Bar Association (GSBA) met with the Law Society’s President Stuart Gilhooly and director general Ken Murphy. Having had their thirst for legal knowledge quenched, attendees retired to O’Connell’s Bar in Eyre Square for the GSBA annual Easter social, where a healthy discussion ensued on Irish licensing law reform; (front, l to r): Ken Murphy, Jenny Prendergast, James Seymour (vice-president, GSBA), Ian Foley, Jackie Prendergast and Stuart Gilhooly; (middle, l to r): David Fahy, Brian Lynch, Claire Irwin, Adrian Harris, Brian D’Arcy and Michael Cunningham; (back, l to r): Ronan Murphy and John Martin 22 May 2017 PEOPLE | PROFILE Law Society Gazette | gazette.ie

WORKING CLASS HERO

Philip O’Leary is the (relatively) new chairman of the Legal Aid Board. He spoke with Mark McDermott about the challenges of running the €100 million operation over the next five years

MARK MCDERMOTT IS EDITOR OF THE LAW SOCIETY GAZETTE

he new chairman of the Legal Aid making the most of the opportunity was impor- we’re getting value for money. Because I come Board is something of a working class tant to me as well.” from a private-practice background, I’m con- hero – though he shuns that descrip- So how did he come to taking on the mantle scious of the fact that there are budgets and tar- tion. Despite having reached the pin- of chairman of the Legal Aid Board? gets that have to be achieved – and then to make nacle in his law firm – he’s also managing partner “I sat on the previous board. I was appoint- sure that we give the best service possible to the Tof FitzGerald Solicitors in Cork – it’s obvious ed in 2011 and served until October 2016.” person in need of legal aid.” when speaking with Philip O’Leary that his legal Appointed by the Minister for Justice, board Is he happy with the service that the Legal career hasn’t been handed to him on a plate. members serve a statutory five-year term, which Aid Board is providing? From what he describes as “a very modest may be renewed on reapplication. “We have improved efficiencies, in terms of working-class background that I’m quite proud the throughput of cases. Less than three years of”, he was the first in his family to study law. Big bang ago, the waiting list was over 5,000 people – it’s Originally from Farranree on the north side of “Coming to the end of that term, I was slightly, I now just over 2,000. So we are making signifi- Cork city, he went to school in ‘The Mon’. wouldn’t say reluctant to reapply, but I thought cant progress. You’re never not going to have a “My father was working as a labourer with about it for a while, because I’d given the board waiting list, but you would like to get to a point the corporation. My mother worked in Sunbeam five years. The one thing that encouraged me where you have a reasonable number on that in the factory. I remember tough times growing was the fact that it can be something of a ‘big list – and a reasonable waiting time in terms of up. It was a large family – there were seven of bang’ when the board leaves. I felt it would obtaining professional legal advice. us – so I know about difficult times and poverty. help if the new board had a number of existing “We do, of course, have systems in place That’s why maybe, in my role today, I feel I can members sitting again – to preserve the corpo- to deal with emergency cases, such as domestic empathise with people who are looking for legal rate memory. On that basis, I reapplied.” Philip violence cases or childcare matters. So the cases aid, because, as people say – and it may sound was the only member of the former board to be where people are waiting on a service are often- trite – but poverty is not just about access to reappointed. times not critical, but perhaps no less urgent.” money. It’s got to do with access to education and His role as non-executive chairman is to run access to opportunity. the statutory board of 12 ordinary members, Broad brush “Access to justice is a very important part of which meets once a month. He also oversees Family law cases comprise the biggest call on our society, and sometimes we take it for grant- the work of chief executive John McDaid and the board’s civil-aid budget, where approxi- ed. That’s why I was surprised and delighted to his management team. “John is a very capable mately 70% of the €40 million budget is spent. get this role. I feel that it’s very important that individual, running a good organisation,” says A significant amount is allocated to childcare we keep emphasising the fact that access to the Philip. “He has 480 staff in 50 offices around cases, particularly in Dublin and Cork. courts for people of modest means is a critical the country, of which 33 are full-time offices. What are his objectives over the next five part of our democracy.” It’s a big operation, with a large budget of €40 years? While his father Liam and mother Nor- million, and John runs that very well.” “The first thing on my agenda is to look at een (both deceased) were educated only as far The Legal Aid Board is to take over the the eligibility levels to make sure that they’re as primary level, Philip says “they were very administration of the State’s criminal legal aid adequate – that people of modest means can interested in reading, very interested in educat- schemes – a €60 million operation that is treat- obtain adequate legal services from the board. ing their children, and there were always books ed separately from its civil legal aid and media- It’s a bit of what I call ‘all duck, no dinner’ at the around the house. We were always brought to tion services. moment. If you’ve over €18,000 in disposable the library. Their main aim was that we would “I see my function as one of running the income, you won’t qualify for legal aid. Some- be educated and get on in life – and they gave us board effectively, overseeing the operation of times, you can have tough cases where appli- that space and opportunity. Going to college and the organisation efficiently, and making sure cants are perhaps a couple of hundred euro over Law Society Gazette | gazette.ie PROFILE | PROFILE May 2017 23 PIC: JOHN SHEEHAN PHOTOGRAPHY

IT’S VERY IMPORTANT THAT WE KEEP EMPHASISING THE FACT THAT ACCESS TO THE COURTS FOR PEOPLE OF MODEST MEANS IS A CRITICAL PART OF OUR DEMOCRACY

that limit, and they don’t qualify. We need to bringing the service close to the people who order to achieve synergy in our operations; and look at a more graduated system, whereby you need it, but on the other, you might end up to offer alternative dispute resolution, such as don’t ‘fall off the cliff’ just as soon as you’re €5 with some smaller offices unable to meet spe- mediation. over the limit. There’s also an argument for the cific requirements. There is merit to review- “I would see some advantages in larger law ‘consumer price indexing’ of the eligibility lev- ing the structures of the service to enhance the centres with a better spread of expertise. els, so that they keep pace with inflation on an throughput of cases and the expertise operated “At the end of the day, I would prefer people ongoing basis. I should add, however, that the in those offices. to get to a service that’s properly and adequately board doesn’t control its budget. The board can “You could have bigger offices in the main resourced, than have one that’s not. It’s all about only make recommendations to the minister, population centres and still run part-time getting that balance right. and it’s up to the minister thereafter whether offices, so that you’re continuing to bring the “I have been very impressed with the pro- those recommendations are approved.” service to the public. This can happen by way fessionalism of the staff I have met, in how they of evolution, specifically where leases are com- approach their work and their commitment to Beat the bounds ing up for renewal. For instance, if there’s a access to justice. At the end of the day, it’s get- What’s crying out for attention? family law office with a lease coming up and ting the quality of the service right, as distinct “The Legal Aid Board has 33 full-time there’s a mediation office down the road, from the throughput. My focus is to ensure that offices around the country, which has benefits we’ll look for a building that will accommo- people get access to justice, that they get the and disadvantages. On the one hand, you’re date both together. We’re doing that now in right advice, and at the right time.” 24 May 2017 COMMENT | VIEWPOINT Law Society Gazette | gazette.ie

COSTS – INTERIM PAYMENT ON ACCOUNT

Two recent developments on the interim payment of costs are very much to be welcomed, writes Ernest J Cantillon

ERNEST J CANTILLON IS PRINCIPAL AT CANTILLONS SOLICITORS

t is often said that high legal costs can im- provision for costs in the taxation process itself. The first development arose out of the pede access to justice. If the costs of bring- Some taxations are taking longer to be heard in DePuy hip litigation, which has been case man- ing a case are too high, a party may refrain full than the original litigation took to be heard. aged by Mr Justice Cross. In the course of that from bringing an action. If costs are too Thus, one can see a situation whereby a plain- litigation, an application was made to Mr Jus- high, a defendant may decide to make a settle- tiff’s solicitor may have to wait some six years tice Cross to provide a form of practice direc- Iment for economic reasons, rather than run the from the date the client comes into the office tion providing for an interim payment of costs, risk of exposing themselves to a large bill that, before any payment may be received. Interest pending taxation. even if they are successful, they may not recover on costs does not arise until the taxation process The proposal put to Mr Justice Cross was from the other side. However, the other side of has been concluded. Over that six-year period, to the effect that: the coin is that low costs can also have an im- all the outgoings of a solicitor’s office (including • At the conclusion of a case, an award would pact on access to justice. rent, salaries and general overheads) have to be be made in favour of the plaintiff, and the Plaintiff solicitors are akin to ‘gatekeepers’. paid, week in and week out. There are very few plaintiff would be provided with an order for Most lay people cannot bring an action without businesses that could withstand that timespan his costs. the assistance of a plaintiff solicitor. If plaintiff from the provision of a service to the date of • It was suggested to Mr Justice Cross that, at solicitors are not adequately and timely remu- payment. that point, the question of the costs would nerated, they will not be in a position to carry In recognising the problems, plaintiff be adjourned for approximately two or three unprofitable litigation and thus will not take the solicitors have been forced, in many instances, weeks. case, or perhaps rule out an entire class of case. to accept uneconomical costs offers in order to • In the interim, the plaintiff would draw up All solicitors have a threshold (be it a rule of assist the cash flow. That, of course, also has a short-form bill. This would be presented thumb or whatever) before they decide to take a knock-on effect, in that, if one accepts an to the other side and an attempt be made to on a case. With low costs and delays in recov- uneconomic fee in a particular case, it will be agree it. ering costs, that threshold is raised and, thus, quoted at the next negotiation of costs, where • If agreement was not possible, then when the some people are being denied access to justice one is informed that this is now the going rate. matter came back before the court two weeks that they would otherwise, perhaps, have ob- It is the going rate because of the circumstanc- later, an application would be made for an in- tained. es that have arisen, but it is not an economic terim part payment on account. rate of return. Cash-flow issue Mr Justice Cross ruled on this matter on 22 Litigation, from the day the client walks in the A modest proposal February 2017. He declined to make a practice door of a solicitor’s office to the day of the con- Two recent developments by the President direction and indicated that, the matter would clusion of the case, can frequently take up to of the High Court, Kelly P, and the judge in have to be revised on a case-by-case basis. He three years. The taxation process can, on occa- charge of the personal injury list, Mr Justice did, however, indicate that at the conclusion of sion, take an equal length of time. There is no Cross, may ease the situation. each DePuy case (that proceeds to determina- Law Society Gazette | gazette.ie COMMENT | VIEWPOINT May 2017 25 PIC: GETTY IMAGES

PARTIES WHO WISH TO MAKE AN APPLICATION FOR AN INTERIM PAYMENT OF COSTS SHOULD SEEK TO HAVE THE COSTS ASPECT OF THE MATTER ADJOURNED AND A BILL PREPARED IN THE INTERIM

tion and an order for costs made), he intends nificant and recognised and accepted problem that he was aware of the cash-flow problems to direct that: in relation to the taxation of costs. There is in relation to costs and the delays in the taxa- • The plaintiff would prepare a short-form bill now only one taxing master, who not alone has tion system experienced by solicitors. In those of costs. responsibility for work that was previously circumstances, Kelly P proposed ordering the • The case would be listed for mention before meant to be done by two, but he is also obliged defendants to make an interim payment in the trial judge approximately three weeks to set up the new scheme for taxation that will respect of costs. The matter was adjourned to after the judgment. be put in place in the future. In addition, a de- enable the parties to make submissions. Any • The parties should make submissions on the cision of the Court of Appeal has meant that payment that will be made will be on the basis adjourned date as to what sums should be individual taxation takes a far longer period of of an undertaking given by the plaintiff’s solici- paid to the plaintiff. The plaintiff solicitor time than was previously the case. In effect, the tors that, should the amount on taxation exceed would be required to give an undertaking to taxation system has stalled. It may be arguable the interim payment, the excess would be re- repay any excess, should the interim amount that there is a failure of the State to vindicate paid by the plaintiff’s solicitors. Indeed, some paid be in excess of the total amount allowed the rights of litigants for effective access to the seven days later, on 28 March, Mr Justice Kelly on taxation. courts under the Constitution…” issued practice direction HC71, providing for • The trial judge would then determine what Clearly the constitutional issue was not interim payments. sum, if any, should be paid to the plaintiff’s before Cross J, and he of course did not deter- From the plaintiff’s solicitor’s perspective solicitors on an ex gratia basis, subject to the mine that constitutional issue, but the above and, more importantly from the plaintiff’s per- undertaking referred to above. paragraph sets out the background adequately. spective, this is a very welcome development. In future, at the conclusion of a case, par- Notwithstanding the fact that Mr Justice Cross Practice direction ties who wish to make an application for an refused to grant an order bringing in a practice A second development occurred during a ruling interim payment of costs should seek to have direction, DePuy has appealed this matter to of a case of Costello v HSE, which was before the costs aspect of the matter adjourned and a the Court of Appeal. Kelly P on 21 March 2017. This was a ruling bill prepared in the interim. If it is not possible In setting out the background to the DePuy heard in public in respect of a settlement in to negotiate a resolution of the bill, then an application Mr Justice Cross stated: “The back- the sum of €17.8 million for a ward of court. interim payment should be sought on foot of ground to this application is that there is a sig- At the conclusion of the case, Kelly P indicated the undertaking outlined above. 26 May 2017 COMMENT | VIEWPOINT Law Society Gazette | gazette.ie

FACE/OFF

Restrictions on identifying the parties involved in disputes do not apply to decisions under the equality legislation. Emily Logan outlines the factors in favour of identifying those who have engaged in discrimination

EMILY LOGAN IS CHIEF COMMISSIONER OF THE IRISH HUMAN RIGHTS AND EQUALITY COMMISSION

n 11 April 2017, the Irish Human EEA, and in relation to the provision of goods as to whether decisions of adjudication officers Rights and Equality Commission and services under the ESA, were heard by the would be published in anonymised form. published an information note, Equality Tribunal. It was the practice of the tri- This confusion may have been attributable aimed principally at practitioners bunal to publish its decisions in a manner that to the fact that decisions of adjudication officers in the field of employment and equality law, identified the parties – except in cases of sexual under the wide range of employment statutes Orelating to the publication of decisions by the harassment and discrimination on the grounds that now come within the ambit of the WRC Workplace Relations Commission (WRC) under of sexual orientation, where identification of the must be published in a manner that does not the Employment Equality Acts 1998-2015 (EEA) complainant might inhibit the referral of com- identify the parties to the dispute, pursuant to and the Equal Status Acts 2000-2015 (ESA). plaints. section 41(14) of the Workplace Relations Act The Irish Human Rights and Equality Com- 2015. This requirement is reflected by rules mission is Ireland’s designated national equality Functions transferred of the WRC’s Procedures in the Investigation and body under a range of EU anti-discrimination On 1 October 2015, the functions of the direc- Adjudication of Employment and Equality Com- measures. Its functions include providing infor- tor of the Equality Tribunal in respect of the plaints (October 2015). mation to the public in relation to human rights investigation of complaints of discrimination This requirement is limited in its applica- and equality, and keeping under review the under the EEA and the ESA were transferred tion, however, to those enactments that are list- effectiveness of certain enactments, including to the director general of the WRC. This ed at schedule 5 to the Workplace Relations Act the EEA and the ESA. The commission also has meant that complaints of discrimination 2015 – and neither the EEA nor the ESA are enjoys a wide range of enforcement and compli- referred after 1 October 2015 are now heard at listed in this schedule. ance functions in respect of the EEA and ESA, first instance by WRC adjudication officers. This statutory requirement of anonymity under part 3 of the Irish Human Rights and Equal- While it is clear that such hearings are to does not, therefore, apply to decisions of adju- ity Commission Act 2014. be conducted in private (section 79(2) of the dication officers in respect of complaints under As practitioners will be aware, prior to the EEA, section 25(2) of the ESA), the commis- the EEA and the ESA. Instead, such decisions reforms introduced by the Workplace Relations sion became aware that there was a degree of are required to be published in such form and Act 2015, complaints of discrimination in rela- confusion (both among legal practitioners and manner as the director general of the WRC tion to employment and occupation under the those attempting to access the WRC’s services) considers appropriate (EEA section 89(1), as amended by sections 83(1)(c)(ii) and 83(1)(h) of the Workplace Relations Act 2015; ESA sec- tion 30(1), as amended by sections 84(1)(b) and THE PRINCIPLE OF EFFECTIVENESS 84(1)(f) of the Workplace Relations Act 2015). WILL NORMALLY REQUIRE THAT THE Discretion As such, the director general enjoys a discre- DECISION OF THE ADJUDICATION tion as to whether decisions under the EEA and ESA should be published in a manner that OFFICER BE PUBLISHED IN A MANNER identifies the parties to the dispute. Given that THAT IDENTIFIES THE EMPLOYER OR the director general has delegated her func- tions in respect of the investigation of disputes SERVICE PROVIDER CONCERNED to adjudication officers, this discretion falls Law Society Gazette | gazette.ie COMMENT | VIEWPOINT May 2017 27 PIC: GETTY IMAGES

THE COMMISSION BECAME AWARE THAT THERE WAS A DEGREE OF CONFUSION (BOTH AMONG LEGAL PRACTITIONERS AND THOSE ATTEMPTING TO ACCESS THE WRC’S SERVICES) AS TO WHETHER DECISIONS OF ADJUDICATION OFFICERS WOULD BE PUBLISHED IN ANONYMISED FORM

to be exercised by adjudication officers. Commission considers that a practice of pub- Of course, there may sometimes be cases So, what factors should adjudication lishing decisions in anonymised form is likely to where the publication of decisions in ano- officers take into account when exercising this undermine the effectiveness of the EEA and the nymised form is warranted. In particular, the discretion? In this regard, it must be remem- ESA. The publication of written decisions that publication of a decision in a manner that does bered that the EEA and ESA are intended to identify those employers and service providers not identify the complainant will often be justi- implement a range of EU anti-discrimination who have engaged in discrimination is likely to fied by the need to ensure that those who have measures (in particular, Directive 2000/43/EC, have a dissuasive impact on others. Further, the suffered discrimination are not inhibited from Directive 2000/78/EC, Directive 2004/113/ prospect of publication may encourage the early referring a complaint (see for example the judg- EC, and Directive 2006/54/EC). resolution of complaints, whether in the context ment of the Court of Appeal of Northern Ire- While the State enjoys a measure of pro- of mediation or otherwise. land in JR5 v Department of Agriculture and Rural cedural autonomy in implementing these mea- As such, the Irish Human Rights and Equal- Development [2007] NICA 19). sures, this is subject to the principle of effective- ity Commission is of the view that, where an Decisions as to whether or not to anonymise ness (joined Cases C-430/93 and C-431/93 Van adjudication officer has found that a respondent one or both of the parties to a dispute in a pub- Schijndel and van Veen). Further, these measures has engaged in discrimination, the principle of lished decision under the EEA or the ESA will require that member states provide for effective, effectiveness will normally require that the deci- ultimately be a matter for the discretion of the proportionate and dissuasive sanctions in cases sion of the adjudication officer be published in adjudication officer, properly exercised in light of discrimination. a manner that identifies the employer or service of the requirements of constitutional justice and The Irish Human Rights and Equality provider concerned. the relevant principles of EU law. 28 May 2017 ANALYSIS | NEWS IN DEPTH Law Society Gazette | gazette.ie

IN DEFENCE OF THE REALM

Steven T Wax is legal director of the Oregon Innocence Project. He spoke about miscarriages of justice at the Law Society’s recent symposium – and his successful defence of former Guantanamo Bay inmates. Mark McDermott reports

MARK MCDERMOTT IS EDITOR OF THE LAW SOCIETY GAZETTE

teven T Wax is utterly engaging. An had the privilege of working in the United – and I’m using that word advisedly – of (at that obviously brilliant lawyer with an in- States generally work well. I have seen a num- point) something between 500 and 600 men at credible legal pedigree, he is a con- ber of miscarriages of justice in my career, and I the US naval facility in Guantanamo Bay, Cuba. summate storyteller. During the Law have had the opportunity to fight for a number “While serving as federal defender in 2005, Society Skillnet’s Symposium on 24 March, he of people who suffered injustice at the hands of I got a call from my counterpart in Washing- addressedS the theme of ‘Fighting for justice our system.” ton DC asking if I would volunteer my office from Portland to Peshawar – a public defend- to assist in the representation of those men. It er’s inside account’. Systemic injustice seemed to me it was very important work to get Wax and his team successfully represented “We can distinguish between individual idio- involved in. The United States District Court six men formerly held as so-called ‘enemy com- syncratic miscarriages of justice, and systemic in Washington DC assigned my office to rep- batants’ in the Guantanamo detention facil- miscarriages.” resent seven men. ity. He was also a key player in the Brooklyn, Focusing primarily on systemic injustice, “When we got into those cases, we had no NY district attorney’s prosecution of David he painted a picture of his life back in the mid- idea if the men we were assigned to represent Berkowitz, also known as ‘The Son of Sam’, noughties: “Let me take you back first to 2005. were hardened terrorists, were fighters who where he worked from 1975-1979. Serving as the federal public defender for the had alliances with the attacks of September 11, He described his life in law as follows: “My District of Oregon on the far west coast of the or whether they were innocent men. view is that the justice systems in which I have United States, I was aware of the imprisonment “What I heard from the then president George Bush, the vice-president, and the sec-

PIC: EPA retary of defence was that every one of the men in Guantanamo was the ‘worst of the worst’ – a phrase used by the US administration. “What I did know was that the men were being held without process, and that there was a very important legal issue that needed to be addressed – that these men were entitled to process. And we joined the fight with that in mind and with an open mind as to who it was that we would meet. “On March 3, 2006, after a number of months of legal skirmishing, we were finally able to go to Guantanamo to visit our clients. And that was no simple feat, because the US Government has chosen to hold those men in Guantanamo for, among other reasons, the The Guantanamo Bay detention centre, located on a US naval base on Cuba, has housed terrorist suspects ability that island provided in preventing any- since shortly after the 11 September 2001 terrorist attacks one from visiting, including lawyers. It had Law Society Gazette | gazette.ie ANALYSIS | NEWS IN DEPTH May 2017 29 PIC: ANGELA HALPIN

I BELIEVE THAT OURS IS A TRULY GREAT PROFESSION THAT GIVES US ALL THE OPPORTUNITY, WHETHER WE’RE CRIMINAL DEFENCE ATTORNEYS OR NOT, TO LIVE OUR IDEALS, TO PURSUE JUSTICE AND TO HELP PEOPLE

taken nearly two years before the first lawyer kid from Brooklyn, told by my president that defenders is there with me and we talked, and had been able to get to the prison to meet with I’m about to meet the worst of the worst. Sit- somehow we overcame the prejudices that I’m a client. ting there is this very dark-skinned black man, sure each of us had brought into the room with “The military escort opened the door and a Muslim from the Sudan, told by his govern- us. And for two days we listened as Adel told I looked in and saw sitting in front of me, at ment that I’m the devil, and told by his fellow us his story. a little metal table, in a little metal chair – a inmates and by the guards there that you re- “He told us how he was raised in Sudan in very dark-skinned man wearing a white jump- ally shouldn’t trust lawyers to come down and a very ‘intact’ family. His father was a medical suit and a white kufi, a Muslim man from the see you – especially Jew lawyers, and especially man – not a doctor – but he was the medi- Sudan, Adel Hassan Hamad. Jew lawyers who are sent by the federal govern- cal man in the part of Sudan where Adel was “And during the two days of that visit with ment. Because I was there paid by the United raised. His parents sent him to college to that Mr Hamad, and all the visits with all of our cli- States’ Government as a federal public defend- greatly more advanced country to the north of ents there in the prison, our clients would sit er – the same government that had imprisoned him, Egypt, where he got a degree in engineer- chained to the floor – to my eye, chained to the Mr Hamad at that point for nearly four years. ing. He came back to Khartoum in the early floor like dogs. “We eyed each other, we started talking 1980s and was able to get a job as an engineer, “What do I do? I’m a nice white Jewish through an interpreter. One of my assistant but it wasn’t what he wanted to do. In 1984, he 30 May 2017 ANALYSIS | NEWS IN DEPTH Law Society Gazette | gazette.ie PIC: ANGELA HALPIN “Now, listening to this, I have no idea whether or not to believe him. “We get back to Oregon from that first visit, and we decided that what we need to do is what we do for all our clients – and that is inves- tigate. And that meant, in this instance, sending a team of investigators from the federal defend- er office into the warzone in Afghanistan.”

Fighting law with law “They went to Afghanistan on behalf of Hamad and some of our other clients. By late summer of 2006, they had returned with scores of video- taped testimony and accounts confirming what Hamad had told us. We tracked down his land- Law Society Skillnet Symposium speakers: Judge Susan Pia Graber (judge of the US Court of Appeals), lord, his employer. We tracked down medical Steven T Wax (US attorney) and Judy Khan QC people for one of our other clients. was fortunate to get a job working for a charity tion papers and he had it all: his work permit, “But we had a problem. We couldn’t pres- that was based in Pakistan, working with refu- his visa, his passport. The Pakistani looks at the ent this evidence anywhere because, under the gees of the then Afghan-Soviet war. He rose blond American and says, ‘What do we do?’ actions of the Bush administration, two statutes through the ranks, first with one charity, and And the blond American looks and says, ‘Take had been passed. The Supreme Court had said then another, to become the administrator of a him!’ He spent six months in a Pakistani prison in 2004 that these men had a right to process. hospital in Afghanistan.” until, in January of 2003, he was flown to the Bush and Congress passed the first law of the United States airfield in Bagram, Afghanistan. Detainee Treatment Act, stripping the federal Over the wall “Adel told those captors the same account courts of jurisdiction. The Supreme Court said “After September 11, the Afghan government that he was giving to us: ‘I have a horror of in 2006: ‘Mr Bush, for the second time, you’re told all foreign nationals that they needed to Osama Bin Laden, I have a horror of violence wrong!’ They passed another statute, stripping leave. Adel was one of the last foreign nation- – that is not Islam. Islam, as I practise it, as I un- the federal courts of jurisdiction again. We’ve als to leave Afghanistan, going back to Pakistan. derstand it, is a religion of peace,’ and his cap- got all this evidence, we’re in habeas corpus, but He told us how, in July 2002, after the end of a tors kept after him and the interrogators kept the federal judges are being told: ‘You can’t see month’s vacation with his entire family back in after him until he collapsed. Taken to a hospi- this.’ Well, as a defence attorney, we do what- Sudan, he went alone back to Pakistan, leaving tal, internally a very strong man, he survived; ever we can. his wife and daughters at home, and how on the others did not that winter. “One of the young guys says to me “Steve, night of July 16 into July 17 he was at home in “Once I got into the case and researched it, we got to go to YouTube. We’ve got to put to- his apartment, awakened at 1.30 in the morning I saw the reports of the number of people that gether a video,” and we put together a video to see a team of men – Pakistani intelligence died – reports of death by ‘blunt force trauma’ – called Guantanamo Unclassified. It rose to the police – coming over the wall that ringed the or beaten to death. Adel told us how, in March number one spot on the YouTube political two-family home in which he lived. of 2003, he was flown to Guantanamo, where chart, telling the story – but Hamad stays in “The men split – one group went into the he was interrogated again. Periodically over the prison. neighbouring Algerians’ home; the team that next three years, he would be interrogated, and “In the spring of 2007, a colleague and I came up to him was led by a blond American. he would tell the captors the same thing that he flew off to Sudan. We realised we had to do The Pakistani in charge asked for his identifica- was telling us. something more, so we went to Sudan to get more evidence. I’m not allowed to engage in diplomacy as a private citizen, so I did not do that, but in gathering evidence and in sharing what we had, we were able to meet with the WE NEED A STRONG INDEPENDENT state minister, the justice minister, the entire JUDICIARY TO ENFORCE AND UPHOLD human rights commission of the Sudanese Government. THE RULE OF LAW, AND WE NEED “Finally we get to the point: ‘Well Mr Wax, what can we do for you?’ A ROBUST AND INDEPENDENT ‘Well, sir, we are here to provide you PROFESSION OF LAWYERS TO BRING information about an innocent Sudanese who is being held in Guantanamo – Adel Hassan THESE FIGHTS TO THE COURT Hamad.’ Law Society Gazette | gazette.ie ANALYSIS | NEWS IN DEPTH May 2017 31

ONCE I GOT INTO THE CASE AND RESEARCHED IT, I SAW THE REPORTS OF THE NUMBER OF PEOPLE THAT DIED – REPORTS OF DEATH BY ‘BLUNT FORCE TRAUMA’ – OR BEATEN TO DEATH

‘Oh, we know all about him. We’ve seen habeas hearings for two of our clients following we’re criminal defence attorneys or not, to live your video on YouTube.’ that committee decision. We won them. They our ideals, to pursue justice and to help people. It’s a small world. could not go home, but they went to other safe “And the last thing that I know is that, ‘What do you want from us?’ countries. whatever you think about the United States and “I said, ‘Well, I’m not engaging in diplo- “In conclusion, my experience tells me whatever you feel about Trump and the United macy, but it sure would help my client if you’d that it is the rule of law that keeps us free. My States today, it is a truly unique and powerful write a letter to Secretary Rice and say “let my experience tells me that we cannot invoke this system, in that it pays people like me to fight on people go”.’ phrase ‘the rule of law’ as a talisman – that the the most important issues of the day. As the fed- “They didn’t really get the reference to rule of law is only as strong as the judges who eral public defender, I was paid by the United Moses and the Egyptians, but he did write the stand up and issue rulings and orders. We need States Government, not only to represent Adel letter and, in December 2007, after five years, a strong independent judiciary to enforce and Hassan Hamad, but to fight the United States four months and 25 days of imprisonment, uphold the rule of law, and we need a robust Department of Justice in the courts in Wash- Adel went home. and independent profession of lawyers to bring ington, in the United States Supreme Court, “In June of 2008, the US Supreme Court these fights to the court. I don’t hold myself out through briefs supporting other lawyers. The took the third of the Guantanamo cases and as an expert in national security law and habeas government paid me to fight throughout my wrote an opinion, addressing the constitutional corpus, or much of anything else. But I do know career, and left me alone to do that job as I saw issue, telling President Bush that, under the this – that it is the legal profession that brought fit, and that to me is the best example of the United States’ Constitution, he did not have me to Guantanamo. fundamental strength of the American system the authority to seize and imprison a person “I believe that ours is a truly great profes- of justice, notwithstanding the fact that miscar- without process, on his say-so alone. We had sion that gives us all the opportunity, whether riages do occur.” 32 May 2017 ANALYSIS | HUMAN RIGHTS Law Society Gazette | gazette.ie

APPLICATIONS FOR INTERNATIONAL PROTECTION

The Refugee Act 1996 allows for subsequent applications for international protection. Hilkka Becker analyses the jurisprudence

HILKKA BECKER IS DEPUTY CHAIR OF THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL AND VICE-CHAIR OF THE LAW SOCIETY’S HUMAN RIGHTS COMMITTEE

he Refugee Act 1996 (as amended) not an appeal court and is not free to substi- this conclusion, of course, is that the High provided for the making of a subse- tute its own substantive findings for those of Court must ensure that, in the words of the quent application for international the decision-maker. The court cannot reverse Court of Justice in Diouf [Case C-69/10], the protection, by a person whose appli- the decision of the decision-maker; it can only reasons which led the minister ‘to reject the cation for refugee status or subsidiary protec- annul its decision. The court can only interfere application for asylum as unfounded … [must] tionT had been refused, only with prior consent if it is satisfied that there was an error of law, be the subject of a thorough review by the of the Minister for Justice. Where such con- or an error of fact on the face of the record, national court’ … [and] there is no reason why sent was not provided, an administrative review or there was some unfairness in the procedure this cannot be achieved by the High Court in could be applied for pursuant to section 17(7G) adopted or if the decision was irrational in that judicial review proceedings by reference to the of the Refugee Act (as inserted by section 8(b) of there was no evidence supporting the finding Meadows principles (as explained in cases such the European Communities (Asylum Procedures) made by the decision-maker.” as ISOF [2010 IEHC 457] and Efe [2011 IEHC Regulations 2011). 214]), it is clear that contemporary judicial However, in NM v Minister for Justice Effective remedy review does indeed provide an effective remedy ([2014] IEHC 638, December 2014), Barr J The decision of Barr J was subsequently for the purposes of article 39”. held that the internal review procedure against overturned on appeal by the Court of Ap- Notwithstanding the findings of the Court the minister’s decision to refuse to readmit an peal ([2016] IECA 217, 14 July 2016). While of Appeal, the International Protection Act 2015 applicant for international protection into the Hogan J recognised that “the form of internal now does provide for an appeal to the Inter- asylum procedure did not comply with article review provided by the 2011 regulations would national Protection Appeals Tribunal, pursuant 39(1)(c) of the Procedures Directive (2005/85/ not be regarded as the equivalent of a decision to section 22(8) of the act, against a recommen- EC), which requires EU member states, among of a court or tribunal which was independent dation of an international protection officer to other things, to “ensure that applicants for of the first instance decision-maker”, he held the Minister for Justice that a subsequent ap- asylum have the right to an effective remedy in conclusion that “the fact that the applicant plication not be permitted on the basis that an before a court or tribunal against a decision not may challenge the validity of any decision of applicant for international protection has failed to further examine the subsequent application the minister to refuse to admit her to the asy- to show either that: “(a) since the determina- pursuant to articles 32 and 34” of the directive. lum process in accordance with section 17 of tion of the previous application concerned, new In essence, the reason for his finding was the 1996 act (as amended) by way of judicial elements or findings have arisen or have been that: “It has been stated on many occasions that review means that the State has provided her presented by the person which make it signifi- the courts can only review the process leading with an effective remedy within the meaning of cantly more likely that the person will qualify to the impugned decision, rather than review article 39 of the Procedures Directive”. for international protection, and the person the merits of the decision itself. The court is According to Hogan J, “the corollary of was, through no fault of the person, incapable Law Society Gazette | gazette.ie ANALYSIS | HUMAN RIGHTS May 2017 33 PIC: WIKIMEDIA COMMONS

THE MINISTER’S REMIT IS TO DETERMINE WHETHER THE SALIENT CRITERIA FOR READMITTANCE TO THE ASYLUM PROCESS HAVE BEEN PRESENTED OR HAVE ARISEN WHICH ‘SIGNIFICANTLY ADD TO THE LIKELIHOOD’ OF THE APPLICANT BEING DECLARED A REFUGEE

of presenting those elements or findings for cations pursuant to section 17(7) of the Refugee case of EMS v Minister for Justice ([2004] IEHC the purposes of his or her previous applica- Act (as amended) make reference to the ‘acid 398, 21 December 2004), in which he held that tion”, or that “(b) where the previous applica- test’, which originates from the decision of the “it is appropriate to regard the minister as tion concerned was one to which subsection Court of Appeal (England and Wales) in the being subject to a test analogous to that adopt- (2)(b) applies, the person was, at the time of the case of R v Secretary of State for the Home De- ed by the courts in the UK and, insofar as that withdrawal or deemed withdrawal, through no partment, ex parte Onibiyo ([1996] EWCA Civ test might arguably be more stringent than that fault of the person, incapable of pursuing his or 1338, 28 March 1996), wherein Bingham MR which the minister has imposed upon himself her previous application”. set out with regard to subsequent applications … for the purpose of this application, the more The relevant provisions in EU law are being allowed that: “The acid test must always stringent test should be applied”. articles 32(3) and 32(4) of the Procedures Direc- be whether, comparing the new claim with While the above cases were decided prior tive. However, it should be noted that, unlike that earlier rejected, and excluding material to the Procedures Directive entering into force, the Irish provisions, they are limited to appli- on which the claimant could reasonably have the matter of subsequent applications was con- cants for refugee status and do not extend to been expected to rely in the earlier claim, the sidered more recently, among other things, by applicants for subsidiary protection. new claim is sufficiently different from the ear- Faherty J in PBN v Minister for Justice ([2016] lier claim to admit of a realistic prospect that a IEHC 316, 2 June 2016), wherein she sets out Acid test favourable view could be taken of the new the parameters of the minister’s decision to As yet, there is no case law on the application claim despite the unfavourable conclusion allow or not allow a subsequent application: of section 22 of the International Protection Act. reached on the earlier claim.” “The first thing to be observed is that it is However, case law regarding subsequent appli- This test was adopted by Clarke J in the not the function of the minister to determine gaLAW SOCIETY ette www.gazette.ie BONUS DIGITAL FEATURES WITH YOUR ONLINE GAZETTE

• Links to judgments, cases and • View on your computer, tablet relevant literature or smartphone • Links to additional material • Links to advertisers’ websites For your best viewing experience, • Seamless navigation throughout download the Gazette to your device Law Society Gazette | gazette.ie ANALYSIS | HUMAN RIGHTS May 2017 35

AS YET, THERE IS NO CASE LAW ON • The manner in which the materials relied on by the applicant are addressed by the review THE APPLICATION OF SECTION 22 OF decision-maker, • The alleged lack of clarity in the review deci- THE INTERNATIONAL PROTECTION ACT sion, and • The alleged error in the decision-maker’s reliance on the arrangements made by the Irish authorities to repatriate failed asylum the applicant’s claim for refugee status on the add to the likelihood’ of the applicant being seekers. ground of particular social group (the ground declared a refugee.” upon which the applicant sought to be read- Faherty J further refers to the decision To date, the jurisprudence appears to have mitted to the asylum process and which formed of Cross J in AA v Minister for Justice ([2012] focused on cases in which the central question the context of her section 17(7) review applica- IEHC 63, 31 January 2012), wherein Cross J was, as expressed by Faherty J in PBN, whether tion); that function is reserved to ORAC and, states that “in order for the applicant to succeed the applicant had established that the element on appeal, the RAT. That remains the position in his section17(7) application to the minister – or finding upon which she relied was “new” even in circumstances where the applicant providing he has satisfied the requirements of and would “significantly add to the likelihood” has to seek the consent of the minister under new information … what must be established is of her qualifying as a refugee. section 17(7) in order to be readmitted to the not very onerous”. She concludes that the issues It remains to be seen how the case law process.” She concluded in this regard: “The that arose for determination in PBN were: evolves under the new act and, in particular, provisions of section 17(7) are clear. The min- • The appropriate comparator for the purpose those cases involving applicants who claim to ister’s remit is to determine whether the salient of the section17(7) application, have been incapable of pursuing their previous criteria, namely new elements or findings, for • The failure of the applicant to avail of the application at the time of the withdrawal or readmittance to the asylum process have been failed asylum seeker ground in her original deemed withdrawal, through no fault of their presented or have arisen which ‘significantly asylum application, own.

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With so much noise around cybersecurity, what practical steps can solicitors take to address the threat of cyberattacks? Simon Collins draws his ray gun

SIMON COLLINS IS A CYBERSECURITY EXPERT AND DIRECTOR OF EY, WHICH HELPS ORGANISATIONS MITIGATE CYBER-RISK Law Society Gazette | gazette.ie COVER STORY May 2017 37 PIC: GETTY IMAGES/WIKIMEDIA/NUALA REDMOND 38 May 2017 COVER STORY Law Society Gazette | gazette.ie

he time of paper-based terms of cost and reputational damage. Even drivers and obtaining senior management practices is fading the most technically advanced organisations support for a robust cybersecurity quickly. Many Irish struggle to manage the risk. programme. This should be followed by law firms are adopting While threats in cyberspace mainly target establishing roles and responsibilities, new and innovative weaknesses in technology: the risk posed agreeing your security strategy (aligned with technologies, from is about far more than just technology, it is your business and IT strategies), developing digital dictation to about practice disruption, client disruption, policies and standards, and enabling flexible remote working brand damage and significant financial reporting. solutions. impacts. Money and data are just part of the Aside from equation, cyberattackers could also prevent 2. Identify what matters most technologies used to run their practices, many you from practising or put you in breach of Understanding what and where your digital firms are using advanced technologies to your license to practise. assets (such as key systems and information) manage the large volumes of data, that form The hard evidence also shows that it’s not are is an important first step in protecting the core of any modern discovery exercise. the IT person who appears on the news when them. After all, if you don’t know what you Clients are also demanding more in terms a breach occurs, it’s the managing partner. have and where it is, how can you even start of leveraging technology to deliver efficient to protect it? and cost-effective services. High-profile and Plan 9 from outer space Map services/objectives/products to security-conscious clients are asking how It can be overwhelming to understand the supporting people, processes, applications, their solicitors ensure the confidentiality and risks, never mind deciding where to start. middleware, data and technology security of their data. This is especially so The steps below provide an overview of how infrastructure, and rank by criticality to your in litigation, where a firm will hold sensitive firms of all sizes can go about improving firm, all stored in an asset inventory. data relating to their client. their cyber-resilience. While many of these steps are necessarily technology-focused, 3. Understand the threats The giant claw it is important that senior management Threat actors vary in capability and In what may come as a surprise, the majority understands them (or ensure those sophistication, while also constantly of sophisticated data breaches start with an responsible for cyber-risk within your firm changing depending on the value of the prize innocent click on a booby-trapped email do) rather than just having them sit with IT. they seek. Depending on the nature of your attachment or website link. As such, firms firm and the digital assets you hold, you will are exposed to a similar threat landscape as 1. Get organised likely be of interest to one or more threat many other businesses, primarily due to the Given the critical impact a cyberbreach can actors. Know your enemy – learning as much fact that they have money and valuable data. have on a firm, clear governance, defined as is practical about your exposures is an On that basis, some of the top threats to law roles and responsibilities, and the support important step in defending against them. firms are: of senior management is required for the Understanding who might want to attack • Ransomware – when malicious code locks successful management of cyber-risks. you, why, and how they might go about it you out of your systems or data. The Start by understanding key business will allow you to focus your efforts on how attacker then demands a ransom payment to respond to the most likely threats. Record in order to unlock your data. the results of your risk assessments in your • Financial fraud – when the attacker poses risk register. as the managing partner or an important AT A GLANCE client (in the middle of a transaction) and 4. Decide what you’re willing to risk uses ‘social engineering’ (typically fake n A cyberbreach can have a The next step is to estimate what your major emails) to convince the finance contact to significant impact on any business, threat scenarios, if realised, might cost your send funds to the fraudster. both in terms of cost and firm. Without an understanding of what the • Espionage – cybercriminals (typically reputational damage risk exposure is in terms of monetary value, it under instruction by a third party) will n Many Irish law firms have a can be very difficult to justify investment in break into a firm’s IT systems in order to significant advantage by not reducing the risk. gain information on a client or transaction having been the first to adopt new Start to understand what the most likely (often during mergers/acquisitions/ technologies cyberattacks could cost your business by litigation), giving the other party the n As such, they can leverage using cyber-risk quantification coupled with ‘inside track’. significant experience and best a cyber-risk management framework that practice from industries such as forms part of your overall risk management Unlike once-off incidents, motivated financial services to jump up the processes. This includes setting your risk attackers mount persistent dynamic cybersecurity maturity curve, thus appetite and ensuring you’re operating campaigns. A cyberbreach can have a quickly reducing their risk exposure within it, which is recorded in your risk significant impact on any business, both in register. Law Society Gazette | gazette.ie COVER STORY May 2017 39 PIC: COURTESY OF THE NATIONALPIC: COURTESY LIBRARY OF IRELAND

IN A LARGE NUMBER OF CASES, CYBERCRIMINALS EXPLOIT WEAKNESSES (KNOWN AS ‘VULNERABILITIES’) EXPOSED DUE TO A LACK OF BASIC PROTECTIONS. MOST EXPLOITS REQUIRE AN IT SYSTEM THAT HAS NOT BEEN KEPT UP TO DATE

5. Focus on awareness emails, phone calls, and physically bypassing and third parties can detect a cyberattack and The majority of cyberattacks include some building access controls. Remember, your are aware of the role they play in defending form of human interaction, typically early people are your first and most critical line of against cyberattackers. This should include in the attack life-cycle, whereby a legitimate detection, defence and response. email security, online banking procedures, user of a system is tricked into providing the Establish an education and awareness mobile device usage, as well as incident attacker with access. This comes in many programme, ensuring all of your people (from reporting procedures and how to manage forms of social engineering, such as phishing junior staff to senior partners), contractors, security technologies such as encryption. 40 May 2017 COVER STORY Law Society Gazette | gazette.ie

activity at various levels. This can be a basic system, whereby an alert is generated and emailed when suspicious activity is detected on a firewall, through to 24-hour security operations-centre monitoring networks, operating systems, applications and end users.

8. Be prepared to react Attacks will occur, so having the capability to respond is crucial. Firms that are well- prepared and rehearsed for this eventuality will typically experience a greatly reduced impact. Establish a formal incident-management team who have been trained in and are able to follow a documented plan, which is tested at least annually. Plans should include how an incident will be detected, incident categorisation and classification, how it will be contained, how the root cause will be investigated, and how the firm will recover from the incident. Plans should include all stakeholders, such as business owners, HR, communications/marketing, risk/compliance, THE HARD EVIDENCE ALSO SHOWS investigations, as well as IT/incident management. THAT IT’S NOT THE IT PERSON (LEFT) WHO APPEARS ON THE NEWS WHEN 9. Be resilient Resilience is about the ability of a firm A BREACH OCCURS, IT’S THE to recover from disruption caused by cyberattacks. When the inevitable cyberattack MANAGING PARTNER does occur, and damage and/or disruption is inflicted, a firm’s ability to recover quickly will be key to survival. Establish recovery plans (including 6. Implement basic protections Implement programmes covering comprehensive backups) for all processes and In a large number of cases, cybercriminals vulnerability management (identifying supporting technologies in line with their exploit weaknesses (known as ‘vulner- weaknesses and fixing them – usually through criticality to the survival of the firm. abilities’) exposed due to a lack of basic penetration testing), identity and access protections. Most exploits require an IT management (who has access to what, as well 10. Strengthen with additional protections system that has not been kept up to date as strong authentication), data protection and Once basic protections have been with security patches and/or has out-of-date privacy, and managing third parties who have implemented, along with the ability to detect malware protection. Implementing basic access to your data. and react, firms should consider additional protections can significantly reduce the protections to further reduce cyber-risk. risk of becoming a victim of a cyberattack, 7. Be able to detect a cyberattack These should be considered in line with steps especially at the hands of an unsophisticated Most organisations will be attacked, if they three and four, so that additional protections cybercriminal who is only capable of have not been already. Attackers are many are focused on reducing the greatest risks exploiting basic vulnerabilities. and sophisticated, and dedicated attackers further. Research the numerous technical have a high chance of getting in, given Work to mature existing capabilities in standards available (such as ISO, NIST, enough time and persistence. Detecting that addition to implementing complementary etc) and implement appropriate technical you are under attack is the first prerequisite capabilities/technologies such as intrusion protections covering areas such as anti- to any form of response. prevention systems (IPS), intrusion detection malware, firewalls, patch management, Establish an activity/event logging systems (IDS), web application firewalls secure configurations, removable media, and security monitoring capability that (WAF) and data loss prevention (DLP) remote access, and encryption. can detect an attack through monitoring systems. Law Society Gazette | gazette.ie COVER STORY May 2017 41

11. Test regularly areas for ongoing improvement, repeating maturity curve, thus quickly reducing their Once a firm is comfortable that they should risk assessments on a regular basis, and risk exposure. be able to protect against, detect and react considering compliance with relevant Firms may use this guidance as an to their current cyberthreats, the next step is regulations. initial approach to the challenges that must to test that capability to gain some assurance be addressed when managing cyber-risk. that it is effective. The man with x-ray eyes A starting point would be to ask whoever Carry out cyberincident simulation While these steps provide an overview of is responsible for risk and whoever is exercises to test your executive management’s actions a firm could take to improve its responsible for IT in your firm if they ability to manage the response to a ability to prevent, detect, and respond to have answers to and/or are carrying out significant cyberattack. Carry out ‘red team cyberattacks, every firm is different and the activities suggested above. If not, it’s exercises’ to test your technical ability to will necessarily manage cyber-risks in line time to start. In doing so, you will be able detect and respond to sophisticated attacks. with their size, complexity and risk appetite. to ensure that, should a cyberattack strike, In many cases, one person will bear all your firm will be ready to detect and 12. Refresh the cycle responsibility, while in larger practices there respond. Cyber-risks will continue to evolve, along will be multiple people tackling each of the with a firm’s exposure. Establishing a cyber- areas outlined above. EY recently opened a newly expanded advanced risk management lifecycle is essential for Many Irish law firms have a significant security centre – the largest cyberfacility of its effective ongoing management of cyber-risks, advantage by not having been the first to kind within the professional services sector in while making the task part of business as adopt new technologies. As such, they can Ireland. Located in Dublin, the centre hosts usual. leverage significant experience and best EY’s dedicated cybersecurity team, which Reflect on all areas of your cyber-risk practice from industries such as financial conducts ethical hacking, computer forensics, and management programme and identify services to jump up the cybersecurity vulnerability research activities.

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Download your copy now by logging onto Smith.Williamson.ie or call us to request a copy. Smith & Williamson is a member We are here to help and share our experience and insight with you. Call us to discuss how we can help you of Nexia International, a worldwide network of independent accounting and your professional practice. Please contact Paul Wyse or any member of our team on +353 1 614 2500. and consulting firms. 42 May 2017 PLANNING AND TENANCY Law Society Gazette | gazette.ie

Planning ahead? The Planning and Development (Housing) and Residential Tenancies Act 2016 is the first in a series of planning reforms designed to reduce delays and create certainty with regard to planning for new housing development. Peter Stafford checks the snaglist

DR PETER STAFFORD IS A BARRISTER AND WAS PREVIOUSLY DIRECTOR OF PROPERTY INDUSTRY IRELAND (IBEC)

ith the publication of Rebuilding Ireland: Action act is being commenced in stages and, at the time of writing, Plan for Housing and Homelessness last July, regulations to give effect to many of the provisions are still the government signalled its desire to reduce awaited. Practitioners should monitor the websites of the delays and create certainty with regard to Department of Housing, the Residential Tenancies Board and planning for new housing development. the Irish Statute Book for updates. The Planning and Part 2 of the act amends the Development (Housing) and Residential Planning and Development Act 2000 to Tenancies Act 2016, enacted on 27 create a new category of permitted December 2016, is the first in a AT A GLANCE strategic infrastructure called series of planning reforms designed n The Planning and Development ‘strategic housing development’. It to achieve that end. The act follows (Housing) and Residential Tenancies guides applicants through a detailed the creation of a vacant site tax, Act contains significant reforms of statutory nine-week pre-application which will be payable from 2019, both the planning system and the planning process, including and reform of the private rented residential tenancies legislation consultation with the relevant local sector in 2016. This will be followed n The two main provisions that will planning authority and prescribed by a new statutory National be of interest to legal practitioners bodies, prior to the lodgement of Planning Framework and planning are the new fast-track planning a planning application with a new regulator later in 2017. process for large-scale housing Strategic Housing Division of An The two main provisions of the developments and reform of the Bord Pleanála. act that will be of interest to legal private rented sector Once the relevant provisions practitioners are the new fast-track n While the act is intended to be only of the act have commenced, all planning process for large-scale in place for the next two years, it applications for strategic housing housing developments, and reforms is likely that Government will come developments must be made directly of the private rented sector. The under significant pressure to extend to An Bord Pleanála, and not through the planning authority. The author thanks Michael Wall BL and these provisions for the duration of Rachel Minch (partner, Philip Lee) for the housing crisis A strategic housing development reviewing this article consists of 100 or more houses or 200 Law Society Gazette | gazette.ie PLANNING AND TENANCY May 2017 43 PIC: GETTY IMAGES

THE PRECISE DEFINITION OF ‘SUBSTANTIAL CHANGE IN THE NATURE OF THE ACCOMMODATION PROVIDED’ IS LIKELY TO BE A SIGNIFICANT AREA OF CONFLICT BETWEEN PARTIES

or more student bed-spaces on land zoned Section 6(6) protects the role of the planning authority is properly represented and residential or mixed residential and other uses. local planning authority in this new process. has a significant input into the board’s decision, Other uses are permitted, but housing must It requires the applicant to engage in pre- despite the inevitable relegation of its role in constitute at least 85% of total gross floor planning consultation with the planning the planning process. area of the development. Other uses cannot authority, which must then send its opinions The act creates a statutory requirement cumulatively account for more than 15m2 of on the proposed development to the board for the board to make a determination within floor space of each house or 7.5m2 of each with a recommendation whether permission 16 weeks of the application being made. student bed space. should be granted or refused, or to propose To ensure that this strict deadline is met, in Therefore, this new provision will not amendments to the scheme. The content of only limited circumstances will requests for apply to all large housing developments; many this opinion, and the general powers of the oral hearings be granted, and the powers of mixed-use developments with a large non- planning authority, is set out in detail in the planning authorities and prescribed bodies to residential element may not meet the land-use act, and further regulations are expected. object to the granting of planning permission mix requirements and thus must go through is also strictly limited. the existing planning process, including, Strict deadline Once the pre-planning consultation where necessary, an appeal to the board. In The act requires the planning authority’s process has taken place, there is no scope for strategic development zones (SDZ), the new representative at any pre-planning consultation the applicant to submit further information in part 2 planning route will apply to those meeting to have “a sufficient level of relevant support of their application, or for the board developments where the applicant opts to avail knowledge and expertise in the matter to make a request for further information of it. concerned”. This is intended to ensure that the from the applicant. The legislation creates 44 May 2017 PLANNING AND TENANCY Law Society Gazette | gazette.ie

WHERE A LANDLORD PROPOSES TO SELL TEN OR MORE UNITS WITHIN A SINGLE MULTI-UNIT DEVELOPMENT WITHIN A SIX-MONTH PERIOD, THE SALE WILL BE SUBJECT TO THE EXISTING TENANTS REMAINING IN SITU, OTHER THAN IN EXCEPTIONAL CIRCUMSTANCES

an unusual position where submissions or ‘relevant development’ (in this case, of 20 or be limited. For those developments that do observations may be considered, but the more houses) has not been completed due meet the criteria, the new statutory timescale applicant cannot submit information to correct to circumstances beyond the control of the for planning determination will be significantly or clarify the issues raised in those observations. person carrying out the development. This truncated, and the strict requirements that Given that the board may refuse to grant avoids the cost and time of undertaking a deadlines are adhered to should provide a permission for incomplete applications, repeat of the initial planning consent process. degree of certainty lacking in the current this may result in the simple refusal of an The new part 2 planning provisions are regime. application that, under the current procedure, time limited and will expire on 31 December would have been remedied through the 2019, or for “any additional period as may be Private rented sector submission of further information. provided for by the Minister [of Housing]”. Part 3 of the act designates certain parts of Where the board fails to make its decision According to official statistics, 15 housing Dublin and Cork, and some areas near Dublin, within the 16-week period, it must pay the schemes went through the planning process as rent pressure zones (RPZ) for a period applicant, within four weeks, the sum of either in 2016 that would have been eligible for the of three years. In these areas, the maximum €10,000 or three times the prescribed fee paid part 2 process had it existed, amounting to amount by which rent can be increased within by the applicant to the planning authority in some 2,943 new units. The pre-application residential tenancies, and between tenancies respect of the application, whichever is the consultation process took, on average, 33 within the same property, is capped at 4% per lesser. weeks, and from the point of the lodgement of year for three years. The act sets a formula that Section 28 of the act permits the extension the application to the determination took an landlords must use when calculating the new of duration of planning permission and the additional 29 weeks. rent, based on the timing of the last review and granting of a further extension of duration Because of the tight definition of ‘strategic the time period between the commencement of permission by five years by a planning housing development’, the impact of this new date of the existing rent or, where the property authority, where it is satisfied that the planning route on overall housing output will is subject to a new tenancy, the rent that was last set under a tenancy for the property and when the new rent will come into effect. An online calculator to assist landlords to determine the limit of any rental increase is FOCAL POINT available on the Residential Tenancies Board website. SUMMARY OF MAIN REFORMS This new cap does not apply if the • Section 3 – fast-track planning route limits on rental increases within and property was vacant before the current new for ‘strategic housing developments’ between tenancies in the same property. letting, and was not let at any time in the 24 consisting of 100 or more houses and for • Section 37 – extension of part 4 months before the area became an RPZ. student accommodation of 200 or more tenancies from four years to six years. The cap also does not apply where bed-spaces, and a new division of An • Section 40 – restriction on landlords there has been a “substantial change in the Bord Pleanála to determine applications. terminating tenancies of ten or more nature of the accommodation provided” • Section 28 – second extension of existing units within the same development in since the rent was last determined. This planning permissions for developments order to sell the properties within a is primarily intended to apply to property comprising 20 or more houses that were six-month period. where substantial refurbishment works would not commenced for reasons beyond the • Section 42 – repeal of the right of increase the market rent applicable for that control of the developer. landlords to terminate a part 4 tenancy property. The precise definition of ‘substantial • Section 36 – introduction of ‘rent within the first six months of second change in the nature of the accommodation pressure zones’ in certain areas and tenancy without stating grounds. provided’ is likely to be a significant area of conflict between parties. These limits will not Law Society Gazette | gazette.ie PLANNING AND TENANCY May 2017 45

work retrospectively and will not affect any rent increases that have been informed to the tenant prior to the act coming into effect. The Residential Tenancies (Amendment) Act 2015 restricted rent reviews to every two years from the previously permitted annual review. Within RPZs, annual rent reviews will once again be permitted, but the two-year rent review restriction will continue to apply to tenancies located outside RPZs. Both within RPZs and elsewhere, the existing restriction

introduced in 2004 on rent not exceeding the PIC: GETTY IMAGES ‘market rent’ still continues to apply. Again, information for landlords on current market rents is set out on the RTB website. In the case of new tenancies in RPZs, landlords must furnish the following information to the tenant at the start of the new tenancy: BECAUSE OF THE TIGHT DEFINITION • The rent that was paid under the last tenancy, OF ‘STRATEGIC HOUSING • The date that the rent was last set, and DEVELOPMENT’, THE IMPACT OF THIS • How the rent set under the new tenancy has been calculated having regard to the rental NEW PLANNING ROUTE ON OVERALL cap formula. HOUSING OUTPUT WILL BE LIMITED Part 4 tenancies Section 37 increases the duration of standard ‘part 4 tenancies’ from four to six years. The existing six-month probation period survives a six-month period, the sale will be subject to tenancies legislation. While the act is intended the new act. The new regime therefore permits the existing tenants remaining in situ, other to be only in place for the next two years, it is a tenant to remain in the property for five than in exceptional circumstances. This so- likely that the Government will come under years and six months following the completion called ‘Tyrrelstown clause’ aims to protect significant pressure to extend these provisions of the initial six-month probation. tenants whose homes are sold while their for the duration of the housing crisis. Section 42 of the Residential Tenancies tenancies are ongoing, and is likely to be an Act 2004 created a six-month probationary area of further litigation and dispute in the period, which was applied at the beginning of future. each further part 4 tenancy, during which the This provision will not apply where the LOOK IT UP landlord can show to the satisfaction of the landlord could terminate the tenancy without LEGISLATION: RTB that “the price to be obtained by selling stating any reason. n Planning and Development Section 41 of the new act repeals that at market value [which is subject to an existing (Housing) and Residential Tenancies provision and so extinguishes the landlord’s tenancy] is more than 20% below the market Act 2016 value that could be obtained for the dwelling right of termination during this period. This n Planning and Development Act applies to new tenancies created after the with vacant possession, or that the application 2000 of that subsection would, having regard to passing of the act, including what are called n Residential Tenancies (Amendment) ‘further’ part 4 tenancies coming into existence all the circumstances of that case, be unduly Act 2015 onerous on that landlord, or would cause on or after that date. A further part 4 tenancy n Residential Tenancies Act 2004 comes into being when a part 4 tenancy undue unfairness to, or undue hardship on, that landlord”. continues to the expiry of the four-year period LITERATURE: This section of the act has not yet (for new tenancies this will be a six-year n Rebuilding Ireland: Action Plan for period) without being terminated. commenced. No termination notices served Housing and Homelessness before the commencement of this section of Section 40 inserts a new section 35A n Residential Tenancies Board – rental into the 2004 act and provides that, where a the act will be affected. pressure zone calculator: www.rtb. landlord proposes to sell ten or more units This act contains significant reforms of ie/rent-pressure-zones within a single multi-unit development within both the planning system and the residential 46 May 2017 FAMILY LAW Law Society Gazette | gazette.ie

Separation anxiety

The folly of Brexit may be visited on divorcing couples where there is an interjurisdictional dispute involving Britain – this will not only affect wealthy litigants, but also those who can least afford it. Keith Walsh explains

KEITH WALSH IS PRINCIPAL OF THE DUBLIN FIRM KEITH WALSH, SOLICITORS

divorcing couple that has to litigate the consequences of in contrast to commercial disputes, where business entities can the marital breakdown is not blessed. The couple that write off legal costs. first litigates where to litigate might be said to be • Family law involves not only financial remedies, but custody cursed. In reality, it is a curse restricted to the rich. and access issues, and delays in commencing, progressing and “ Only they can afford such folly” (Thorpe LJ of the completing these disputes can cause very serious harm to parent/ Court of Appeal of England and Wales in child relationships, as well as affecting the normal development Wermuth [2003]). of children. • The voice of the child is often lost in The consequences of jurisdictional disputes that are not about the substantive disputes in family law are different to issue, but are disputes about jurisdiction. those in civil or commercial law: AT A GLANCE • Family law applies to the private life The legal regime currently in place between n In divorce, legal separation, annulment, of individuals and to their family Ireland and Britain in divorce, separation, and parental responsibility cases in life. It is a far more intrusive and annulment, and parental responsibility member states, Brussels II bis deals personal form of litigation than is governed by Brussels II bis (Council with issues of jurisdiction, service, almost any other. Regulation 2201/2003). Maintenance and recognition and enforcement of • The length of time it may take to obligations are excluded from the scope of judgments litigate a divorce or separation and this regulation, since they are covered by n Once Britain actually leaves the EU, its costs has a considerable impact Council Regulation 44/2001. the practice of family law between on the lives of those involved. Any The Bar Council of England and Wales, Britain and Ireland will become more further complication of an already in their December 2016 Brexit papers, set complicated and expensive detailed and complex litigation out the advantage of Brussels II bis and the n While Britain may decide to process will adversely affect both Maintenance Regulation as follows: automatically recognise EU orders litigants involved. • Certainty about jurisdiction – couples of post-Brexit, there is no guarantee that • Most couples involved in family law different nationalities who live in different the EU will decide to automatically proceedings are paying their own EU member states can find out relatively recognise orders made in Britain costs from after-tax income. This is easily where issues concerning the Law Society Gazette | gazette.ie FAMILY LAW May 2017 47 PIC: WIKIMEDIA/NUALAREDMOND

REBECCA BAILEY-HARRIS ESTIMATED THAT OVER 40,000 ITEMS OF LEGISLATION REQUIRE CONSIDERATION POST BREXIT

welfare of children, divorce and/or in Brussels II bis is that of lis pendens – the ‘first litigants and family lawyers in Britain. maintenance should be resolved, in time’ rule. The party who commences The Court of Justice of the EU will • Ease of enforcement – orders concerning proceedings first obtains jurisdiction, and continue to function without Britain, whose custody, access, and maintenance must be the courts of other member states must stay clock will stop at the date of Brexit. Prof recognised and enforced in other member any subsequent equivalent proceedings until Rebecca Bailey-Harris, speaking at the recent states, the jurisdiction of the first court has been four jurisdictions conference, estimated • Each member state must designate a established (by the first court). that over 40,000 items of legislation require central authority that is responsible for Brussels II bis also deals with issues of consideration post-Brexit. The ‘Great Repeal cross-border enforcement of orders and for jurisdiction in parental responsibility cases. Act’ will only hold or freeze the decisions to the exchange of information and general There is a more nuanced approach here, be made regarding Britain’s domestic law, cooperation in matters concerning the where the rush to issue first may not succeed post-Brexit. How high up the priority list will welfare of children, and in determining jurisdiction if it can be shown resolving family law disputes be? • The availability of protective measures that there is a court in a better position to Britain may choose – although it appears pending resolution of disputes protects determine the child’s habitual residence other unlikely – to recognise the rules set down in children’s welfare. than the court where the proceedings were Brussels II bis and the Maintenance Regulation first issued. in relation to jurisdiction, but it appears more This is likely to change with Brexit. In divorce, likely that there would be a move to impose legal separation, annulment, and parental To be or not to be? British law where possible. However, this is responsibility cases in member states, Brussels II As Britain will no longer be part of the EU, currently unclear. bis deals with issues of jurisdiction, service, and Brussels II bis will not apply to them. There will How will disputes in relation to recognition and enforcement of judgments. be an immediate issue for Britain of certainty jurisdiction involving Britain and Ireland in It does not deal with substantive laws, as to jurisdiction and how (if at all) reciprocal divorce cases be resolved, post-Brexit? In the but could be viewed as dealing with the more arrangements could be put in place with the absence of any other agreement, disputes in technical aspects. There is no system of EU. Britain may choose to retain the rules relation to jurisdiction will be resolved by applicable law in these matters. of Brussels II bis, but other states will not be forum conveniens, which involves the court In relation to jurisdiction in separation obliged to abide by Britain’s domestic laws. determining which jurisdiction is the most and divorce cases, the basic principle set out This lack of reciprocity will be a huge issue for appropriate or suitable to adjudicate the issues protect protectyour yourData Datafrom Deletion,from theft, ServerDeletion, CraShe tSheft,, viru SeS, PowerServer Surge CraSheS, Se,le viruCtriSeCS,al failurePowerS, fire SurgeS, DataS, ele CorruCtriCalPtion, hafailureCkerSS, ,f nireaturalS, Data Corru DiSaPStion,terS... KeepItSafe’s fully managed and fully monitored online backup solution haCkerensuresS, n VIPatural treatment for your criticalDiS data.aSterS... KeepItSafe’s fully managed and fully monitored online backup solution ensures VIP treatment for your critical data. never loSe a file again. never loSe a file again.

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CR Gazette Magazine Advert 91X252_Orange_Jan 2017_V1.indd 1 18/01/2017 14:22 Law Society Gazette | gazette.ie FAMILY LAW May 2017 49

THERE ARE CONCERNS RELATING TO STRAIGHTFORWARD ISSUES TURNING INTO PROTRACTED ‘PRE-LITIGATION LITIGATION ABOUT LITIGATION’ EXPRESSED BY LAWYERS PRACTISING ON CIRCUITS ADJACENT TO THE BORDER

in dispute. This litigation to establish where fundamental principles of procedure of litigation about litigation’ expressed by lawyers divorce litigation should take place would have the member state in which recognition is practising on circuits adjacent to the border the following adverse effects for both litigants: sought, with Northern Ireland. As Resolution (the • It would substantially increase the costs • On the request of any person claiming that family lawyers association in Britain) stated involved, the judgment infringes his or her parental recently: “The problem with the ‘Great Repeal • It would further delay the resolution of the responsibility, if it was given without such Bill’ is that it would force us [in Britain] to substantive dispute, that is, the divorce, and person having been given an opportunity to adopt rules which may not be helpful to • It would lead to uncertainty. be heard, families, but with no guarantee that the other • If the procedure for placement of a child member states will play by the same rules. Automatic in another member state applies and is not Thus, proceedings issued or orders made in There is provision in article 21 of Brussels II bis complied with (as set out in article 56). England could simply be ignored.” for automatic recognition, without any special On the positive side, Britain has not left the procedure, of orders made in one member state While Britain may decide to automatically EU yet – it has simply given notice to leave. by other member states in divorce, separation recognise EU orders post-Brexit, there is Until it actually leaves, the current system will and marriage annulment matters. no guarantee that the EU will decide to remain in place and we must use it to our best There are a number of grounds for non- automatically recognise orders made in Britain. advantage until the alternative arrives (if it ever recognition of judgments relating to divorce, Prof Bailey-Harris is sceptical that automatic does). legal separation or marriage annulment, recognition will happen post-Brexit. There is plenty to be done – family including: It appears inevitable that recognition lawyers in these four jurisdictions, as well • If recognition would be manifestly contrary and enforcement of orders between Britain as in the EU, can advocate for and lobby to the public policy of the member state and Ireland will become more difficult post- their own governments and the EU to adopt where recognition is sought, Brexit, since the current system, while far a more enlightened approach to meet the • Where given in default of appearance or if from perfect, does provide a great degree of needs of children and family, post-Brexit, the respondent was not served with the writ clarity and certainty in most recognition and by the retention of some level of common or with an equivalent document in sufficient enforcement situations. agreements. time and in such a way for them to arrange The system of recognition of foreign We are at the start and not the end of the for their defence, unless it is determined that divorces from non-EU countries in Ireland is Brexit process, and family lawyers owe it to the respondent has accepted the jurisdiction already complex, and the exit of Britain from their clients to highlight these issues and put unequivocally, the more straightforward recognition regime it up to governments and the EU to consider • If it is irreconcilable with a judgment given in (for the period that Brussels II bis applies) will the effects of not resolving the obvious issues proceedings between the same parties in the further complicate the lives of those whose of jurisdiction, enforcement, and recognition member state in which recognition is sought, marital life has crossed borders with our of divorces and other family law orders post- or nearest neighbours. Brexit. • If it is irreconcilable with an earlier judgment given in another member state or in a non- Uncertain member state between the same parties, We are entering a time of uncertainty in provided that the earlier judgment fulfils the international family law. Once Britain actually LOOK IT UP conditions necessary for its recognition in the leaves the EU, the practice of family law CASES: member state in which recognition is sought. between Britain and Ireland will become more n Wermuth v Wermuth [2003] EWCA complicated and expensive. Litigants will Civ 50 1 These grounds also apply to judgments relating inevitably be dissatisfied with the system, and to parental responsibility, with three additional delays appear likely. LEGISLATION: grounds for non-recognition of judgments: At a recent Family Lawyers’ Association n Council Regulation 2201/2003 • If the judgment was given, except in case of seminar in Dublin, there were grave concerns (Brussels II bis) urgency, without the child having been given relating to currently straightforward issues n Council Regulation 44/2001 an opportunity to be heard, in violation of turning into protracted ‘pre-litigation 50 May 2017 MEDIATION Law Society Gazette | gazette.ie

Mediation nation The Mediation Bill 2017 was published on 13 February and contains new and significant obligations for solicitors – but it also brings opportunities. Richard Lee reports

RICHARD LEE IS PRINCIPAL OF LEE SOLICITORS AND CHAIR OF THE MEDIATION SUBCOMMITTEE OF THE CHARTERED INSTITUTE OF ARBITRATORS (IRELAND BRANCH)

n the recent high-profile Kilkenny Group case, the with the assistance of a mediator, attempt to reach a mutually High Court strongly urged the parties to consider acceptable agreement to resolve the dispute” and confirms mediation to avoid a public hearing of the difficulties the process to be confidential and privileged. between certain family members. Mediation provides One of the functions of the bill is to specify what legal a private and confidential requirements will apply to mediation process for parties to and how mediation will interact resolve their dispute with with existing legislation and court the support and assistance procedures. The bill provides that of a qualified and experienced AT A GLANCE participation in mediation shall be independent third party. The courts n The approach of a solicitor to voluntary, that a party may withdraw are now more frequently suggesting mediation can have a significant at any time, and further provides that mediation to parties coming before bearing on the outcome for their a party may be accompanied to the them as a means to resolving their clients mediation and assisted by a person, difficulties. n The Mediation Bill 2017 will have a including a legal advisor. In addition, The Mediation Bill 2017 was very significant effect in relation to the bill provides that a party may published on Monday 13 February the resolution of disputes and will obtain independent legal advice at and contains new and significant oblige all parties, including solicitors, any time during the mediation. The obligations for solicitors – but it to seriously consider the benefits of bill also puts an onus on the mediator also brings opportunities. The mediation to resolve disputes. and on the parties to “make every bill recognises the importance of n It will bring significant change to reasonable effort to conclude the mediation and conciliation, and the practice of civil litigation, with mediation in an expeditious manner the contribution they bring to solicitors having to offer and explain which is likely to minimise costs”. the resolution of complaints and mediation as an option to their disputes. It will put the process on clients, and subsequently swear a Obligations a legal footing. The bill describes statutory declaration confirming that Part 3 of the bill sets out new mediation as “a facilitative voluntary they have done so obligations on solicitors and process in which parties to a dispute, barristers. Prior to issuing Law Society Gazette | gazette.ie MEDIATION May 2017 51 PIC: GETTY IMAGES

THE BILL PROVIDES THAT PARTICIPATION IN MEDIATION SHALL BE VOLUNTARY, THAT A PARTY MAY WITHDRAW AT ANY TIME, AND FURTHER PROVIDES THAT A PARTY MAY BE ACCOMPANIED TO THE MEDIATION AND ASSISTED BY A PERSON, INCLUDING A LEGAL ADVISOR

proceedings, a solicitor will be required to: (a), (b) and (c) and that, if the solicitor which the fees and costs are to be paid, the a) Advise the client to consider mediation does not furnish such a statutory place and time at which the mediation is to as a means of attempting to resolve the declaration, the court will be obliged to be conducted, the fact that the mediation is dispute, adjourn proceedings. to be conducted in a confidential manner, and b) Provide the client with information in the right of each of the parties to seek legal respect of mediation services, including The solicitor will also be obliged to inform advice. It is currently standard practice for the names and addresses of persons who the client of the confidential and privileged such an agreement to be put in place, but the provide mediation services, nature of mediation, and of the enforceability bill will now make it mandatory. c) Provide the client with information about of a mediation settlement (as per sections 10 The bill also sets out and regulates the (i) the advantages of resolving the dispute and 11) of the bill. role of a mediator and includes the obligation otherwise than by way of proposed on a mediator to step aside if he/she has a proceedings and (ii) the benefits of Agreement to mediate conflict or potential conflict of interest. It mediation, The bill will oblige the mediator and the further requires that a mediator inform the d) Inform the client that the solicitor is parties to the mediation to enter into a parties of his/her qualifications, training obliged to swear a statutory declaration written mediation agreement, which will and experience and continuing professional confirming that the solicitor has need to include the manner in which the development training, and also to furnish to performed the obligations set out in mediation is to be conducted, the manner in the parties a copy of the code of practice to 52 May 2017 MEDIATION Law Society Gazette | gazette.ie

THE BILL WILL CREATE A GREATER often pave the way for later settlements. Statistics in this regard are hard to come NEED FOR SOLICITOR MEDIATORS by, but most experienced mediators agree WHO, BY VIRTUE OF THEIR that there are more successes than failures. Different types of disputes enjoy higher PROFESSION, ALREADY UNDERSTAND success rates than others – for example, THE LAW AND THE COURT SYSTEM business disputes tend to fare well in mediation. The longer a dispute goes on, the more entrenched the parties become, with the consequence that the chances of a successful mediation diminish. which he/she subscribes. Many practising whereby the mediator can make proposals mediators (solicitors, barristers, accountants, and recommendations to resolve the dispute, The courts architects, engineers) will already be subject provided the parties so request. Part 4 of the Mediation Bill sets out the role to the regulatory structures of their own of the courts in mediation. The bill provides professions and, indeed, will be members Confidential and privileged that a court may, on the application of a party of existing mediation bodies, such as the The bill makes it clear that all aspects of a to the proceedings or of its own volition, Chartered Institute of Arbitrators and the mediation are confidential and privileged. invite the parties to consider mediation. If Mediators’ Institute of Ireland, which also This is an important aspect of the bill, as it the parties decide to engage in mediation, the have their own specific codes of conduct. allows parties to go into mediation without court may: The bill also makes it clear that a mediator fearing that what they say will be used • Adjourn the proceedings, must act with impartiality and integrity and against them in court should the mediation • Make an order extending the time for treat the parties fairly. Mediators will also be unsuccessful. It permits the parties to compliance by a party with rules of court be under a duty to complete the mediation openly exchange views and make apologies if or with any order of the court in the as expeditiously as is practicable and make appropriate. In particular, the bill sets out that proceedings, sure that the parties are aware of their rights “all communications by the mediator with the • Make such other order or give such to obtain independent advice, including parties and all records and notes relating to direction as the court considers necessary legal advice, prior to signing any mediation the mediation shall be confidential and shall to facilitate the effective use of mediation. settlement. The bill makes it clear that the not be disclosed in any proceedings before a outcome of a mediation is to be determined court or otherwise”. This is one of the main Where a case is to go to mediation from the by the mutual agreement of the parties, and reasons that mediation works: the parties are court, then the mediator will be obliged to it is not for the mediator to make proposals able to talk and listen to each other in a ‘safe prepare and submit a report to the court. to the parties to resolve the dispute, unless space’. One of the functions of the mediator is Where the mediation did not take place, the parties specifically request the mediator to create and keep this ‘safe space’. the mediator will be obliged to furnish a to make such a proposal. Standard mediation The majority of mediations are statement of the reasons why it did not take agreements will normally include a provision successful, and unsuccessful mediations can place. Where the mediation proceeds and is successful or partially successful, the mediator will be required to furnish a statement setting out the agreed terms. In the case of a partial FOCAL POINT settlement, the mediator will be required to give a statement detailing the matters that JUDICIAL VIEWS ON MEDIATION remain unresolved. Where the mediation is The President of the High Court, Judge that there is a public and social benefit to unsuccessful, the mediator will be obliged Peter Kelly, Judge Petria McDonnell of the mediation. Judge McDonnell described to give a statement as to whether in his/ Circuit Court, and President of the District mediation as creating a ‘safe space’ for her opinion the parties engaged fully in the Court Rosemary Horgan recently gave their the parties to talk and to listen to each mediation. personal views on mediation at an event other. The President of the District Court A consensus is emerging from the various organised by the Courts Service. described mediation as a process in which mediation bodies that this particular section All three judges encouraged the use the parties themselves have control of the should be omitted, as the obligation to of mediation and expressed the view outcome. Judge Horgan commented that furnish a report gives the appearance that that they would like to see greater use encouraging the use of mediation made a confidentiality will be breached, and it is of mediation in the future. The President significant difference to its uptake and that likely to discourage the parties from engaging of the High Court commented that there mediation is a good way of meeting the in open and direct communication, which is is a cost to society with litigation and needs of a client. an essential part of the mediation process. An important aspect of the bill is that, Law Society Gazette | gazette.ie MEDIATION May 2017 53

in awarding costs, a court shall be entitled to the contract, the other party can apply to and subsequently swear a statutory declaration take into account any unreasonable refusal to court to have the proceedings adjourned so confirming that they have done so. mediate. This is a significant and important that the mediation clause might take effect. The bill will create a greater need for feature of the proposed legislation and means This will support and strengthen the benefit solicitor mediators who, by virtue of their that a party refusing to mediate will do so at of having mediation clauses in all manner profession, already understand the law and their peril. Where an invitation to mediate of agreements and contracts, including the court system. There will also be a greater is received, good practice would suggest that solicitors’ terms and conditions and letters need for ‘mediation advisors’ who know it should not be ignored and, if a decision is of engagement. To facilitate mediation, the and understand their role in the mediation made to decline the invitation, then detailed bill provides for limitation and prescription process and add benefit to it for the sake of reasons should be set out in writing explaining periods to be suspended. their clients. why the invitation is being refused (and Going to court is an adversarial process sometimes there are good reason to refuse Opportunities in which all solicitors are well trained and mediation). When passed, the bill will have a very experienced, but going to mediation requires significant effect in relation to the resolution a different set of skills. Clients will want their Mediation clauses of disputes and will oblige all parties, including solicitor to accompany them to mediation The bill sets out important provisions to solicitors, to seriously consider the benefits and guide them through the process, giving safeguard mediation clauses. If a party is of mediation to resolve disputes. It will bring them appropriate legal advice and writing up bound by a mediation clause in a contract/ significant change to the practice of civil the mediation settlement. The approach of a agreement, but disregards that clause and litigation, with solicitors having to offer and solicitor to mediation can have a significant then issues legal proceedings in respect of explain mediation as an option to their clients bearing on the outcome for their clients.

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Library ad Gazette Dec 2015.indd 1 24/11/2015 10:46 54 May 2017 LEGAL TRANSLATORS Law Society Gazette | gazette.ie

Lost in translation The work of legal translators is an important and growing area in Ireland. Annette Schiller discusses best practice when working with legal translators

DR ANNETTE SCHILLER IS A MEMBER OF THE EXECUTIVE COMMITTEE OF THE IRISH TRANSLATORS’ AND INTERPRETERS’ ASSOCIATION AND LECTURES PART-TIME IN TRANSLATION AT DUBLIN CITY UNIVERSITY

ranslation refers to the written text and to be concluded quickly in a legal context, the ability to analyse involves identifying and understanding and process long and highly complex texts and to produce quality concepts in one language and expressing translations within a reasonable timeframe is a must. T them appropriately, Translations used in a legal context coherently, and cohesively in are also frequently hybrid in nature. another language. For example, case documents about a Proficiency in a foreign language or AT A GLANCE road traffic accident may include an even bilingualism is not sufficient to be a n A legal translator requires an in- engineer’s report on the condition of competent translator. Apart from excellent depth knowledge of the legal and the road at the time of the accident, or linguistic skills, a translator will show great judicial systems and terminology with about the vehicle, or a medical report intellectual curiosity, absolute integrity, and which they are working about injuries incurred. strong research skills. n Also, the legal translator in Ireland Legal translators are required in A legal translator requires, in addition, must know how to deal with the many different areas: an in-depth knowledge of the legal and frequent lack of equivalence between • Solicitors – family law, probate, judicial systems and terminology with the common and civil law traditions conveyancing, company which they are working, and of course, n Given the lack of a state accreditation incorporation, all stages of civil of European law. Furthermore, the legal system and the growing need for disputes and criminal proceedings, translator in Ireland must know how to certified translations and legal • Corporate clients operating deal with the frequent lack of equivalence translators, the ITIA has introduced internationally – procurement, between the common and civil law the professional qualification ‘ITIA recruitment, and contract drafting, traditions. Certified Legal Translator’ • Court of Justice of the European Given the general need for transactions Union – in a freelance capacity, Law Society Gazette | gazette.ie LEGAL TRANSLATORS May 2017 55 PIC: GETTY IMAGES

IN IRELAND, ANYONE WHO WISHES TO WORK AS A TRANSLATOR, EVEN A LEGAL TRANSLATOR, MAY DO SO, REGARDLESS OF WHETHER THEY HAVE A QUALIFICATION IN TRANSLATION OR KNOW ANYTHING ABOUT TRANSLATION

• Supreme or constitutional court judgments • Private persons use legal translators for the in translation or know anything about – on matters of great public interest that certified translation of documents that are translation. are relevant to other member states or required when applying for citizenship, or countries, to attend university. Non-regulated profession • Universities and legal publishers – EU While translation is a non-regulated projects, general legal commentary, In Ireland, anyone who wishes to work as a profession worldwide, many countries in commentary on the civil codes of various translator, even a legal translator, may do so, continental Europe (for example: Germany, countries, regardless of whether they have a qualification France, Poland, Croatia) have a system 56 May 2017 LEGAL TRANSLATORS Law Society Gazette | gazette.ie

of sworn translators. The minimum A COMPETENT TRANSLATOR WILL ASK requirements differ from one member state to another, but generally include most of the FOR CLARIFICATION IF SOMETHING following: • A Master’s degree in translation, IS NOT ABSOLUTELY CLEAR. BE • A minimum of five years’ relevant PREPARED TO DISCUSS ASPECTS OF experience, • Success in the legal translation exam set by A TEXT WITH THE TRANSLATOR the courts or justice ministry, • An oath to be taken before a court of law, • Renewal of the licence as a sworn translator every five years. the ITIA – as the only professional translator • Many have a legal qualification (such as an association in the country – decided to LLB/LLM/Diploma in Legal studies from In Ireland, the provision of translators introduce the professional qualification ‘ITIA Ireland or similar from abroad) and/or (excluding translators for the Irish language) Certified Translator’ (now ITIA Certified have worked at a law firm. for government bodies, the courts, garda Legal Translator). The association spent • They are bound by the Code of Practice and stations and the prison service is organised over two years studying the sworn translator Professional Ethics of the ITIA. by public procurement competition. The systems that are in place in Europe and • Translators translate into their mother most recent request for tender (RFT) of also best practice in legal translation. In tongue. Translation out of the mother 27 November 2015 resulted in six translation 2006, it introduced a procedure whereby tongue is accepted only if the foreign agencies being chosen for a framework translators working exclusively or primarily language is at near-native level. agreement. These six framework members in legal translation and who are in the top • The exam consists of the translation of two subsequently partake in a ‘mini-competition’ membership category at the ITIA may apply texts: the first a short text (for example, for the actual award of contracts. Two of the to take the examination to become an ITIA a birth/marriage cert), and the second an six framework members are based in Britain, Certified Legal Translator. The ITIA now A4 excerpt of continuous text (such as a and apparently some of the six have not been has 33 ITIA Certified Legal Translators contract, or divorce document). asked to supply translators to date. covering the following languages: from • The texts for translation are authentic The RFT specifies that the translators Chinese, Croatian, Danish, French, German, documents. to be used must be “native English speakers, Italian, Japanese, Polish, Russian, Serbian and • The scripts are assessed by highly qualified with a recognised academic qualification in Spanish into English; and from English into legal translators based in Ireland and the language concerned or native speakers German, Polish, Russian and Spanish. Europe with experience of assessing exams. in the language required with a recognised The profile of an ITIA Certified Legal • The failure rate tends to be between 50% academic qualification in English”. A Translator and details of the examination and 85% each year. Translators who fail qualification in translation is, therefore, not taken are as follows: one or both papers may re-take those a requirement. The RFT also states that • Postgraduate or undergraduate degree in papers the following year. “service providers will be required to provide translation. • A certified translation by an ITIA Certified quality audits of 5% of all translations • A minimum of five years’ experience Legal Translator contains a certifying completed in each calendar month”. in legal translation, but most will have statement and two stamps with the ITIA It is hard to fathom how someone with between ten and 25 years. certification number and contact details of no relevant qualification and who is possibly the translator. The translator is, therefore, unaware of the wider ethical principles traceable at all times. involved can provide a quality and cost- effective service in such a complex area of As regards certified translations, an translation. The low level of independent ITIA Certified Legal Translator may be testing is also of concern. While the State is struck off the ITIA list if they are found perhaps paying a fair fee for this work, much of to be wilfully mistranslating documents, that fee is not trickling down to the translator, certifying translations done by third parties, which means that qualified legal translators or certifying language combinations for will not accept such work, as they are simply which they have not been certified. In not prepared to work for very low rates. addition, they are required to translate only from original documents or certified The professionals copies and not from faxes or scanned Given the lack of a state accreditation copies. The certification stamps are issued system and the growing need for certified only by the ITIA. translations and legal translators in Ireland, A certified translation done by an ITIA Law Society Gazette | gazette.ie LEGAL TRANSLATORS May 2017 57

Certified Legal Translator is intended to • Specialisation in another subject area, for • While speed is of the essence, a competent be a guarantee of quality and accuracy and example, medicine, or technical, translator will not take on an assignment therefore a reassurance to the client. • Legal translators can be accessed through that has an unreasonable deadline, or one the ITIA or by recommendation or that pays very low rates, or that involves Right to translation through translation companies. a subject area with which they are totally Article 5(2) of Directive 2010/64/EU, which unfamiliar. provides for the right to interpretation A few tips for best practice when working • A legal translator will generally translate and translation in criminal proceedings, with legal translators: between 1,500 and 2,000 words per day, says that member states “shall endeavour • A competent translator will ask for depending on how complex a text is. to establish a register or registers of clarification if something is not absolutely • Translators are highly IT literate and independent translators and interpreters clear. Be prepared to discuss aspects of a use computer-assisted translation tools. who are appropriately qualified. Once text with the translator. However, legal translation assignments are established, such register or registers shall, • Include the legal translator as early as rarely suitable for economies of scale. where appropriate, be made available to legal possible in an assignment to allow them • Each translation job is different, and the counsel and relevant authorities.” time to familiarise themselves with the price will depend on the language, type of While such registers already exist in some subject matter, to carry out any research text, deadline, and may be based on word, member states, no such register has been required, and to come back to the solicitor line, page or hour. established in Ireland to date. for clarification. • As regards authentication, a translator When choosing a legal translator, the • Develop a long-term relationship with a cannot vouch for the authenticity of a client should look for the following: competent legal translator. This will allow foreign document. However, they can • Translation qualification – postgraduate or them to become very familiar with your confirm that their translation is a true, undergraduate, area of work. accurate, and faithful rendering of the • Legal qualification or training or exper- • Legal texts are frequently unnecessarily original document presented to them. This ience working at a law firm, where possible, complicated, requiring considerable is done (a) through certification by an ITIA • An ITIA Certified Legal Translator, clarification. Perhaps consideration should Certified Legal Translator, as outlined • Translator translating into the mother be given to clear writing at the drafting above, or (b) by means of a sworn affidavit. tongue (failing this, near-native level), stage. An article in the March 2017 With the latter, the translator will arrange • Membership of a professional association issue of the Gazette (p11) suggests that to have the swearing of the affidavit (in Ireland or abroad), “clear communication saves costly court overseen by a solicitor/notary other than • A recommendation from another well- cases” and that refers only to work in one the solicitor who has commissioned the established translator, language! translation.

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For directions on the use of these facilities, please see: www.landdirect.ie

For additional assistance in using these new facilities, please email: [email protected] 58 May 2017 BOOKS Law Society Gazette | gazette.ie

THE LAW OF PERSONAL INJURIES (SECOND EDITION) Colin Jennings, Barry Scannell and Dermot F Sheehan. Round Hall (2016), www.roundhall.ie. ISBN: 978-0-41405-656-5. Price: €245.

While the title of this work specifically cites personal injuries, this book covers much more FINANCIAL SERVICES LAW IN than personal injuries in the limited sense. It IRELAND: AUTHORISATION, also includes a chapter on alternative forms of SUPERVISION, COMPLIANCE liability, which discusses nuisance, product li- AND ENFORCEMENT, 1ST EDITION ability, control of animals, and vicarious liabil- Finbarr Murphy ity. A separate chapter is included on occupier’s liability, and specialised compensation regimes. This new title provides a novel and overdue analysis of the regulation There is also a chapter on insurance. Three ap- of financial services law in Ireland. pendices are provided, which cover pleadings It discusses the theory and practice of and notices, including the MIBI Agreement 2009 regulation, and outlines the tools and mechanisms available to regulators and the Injuries Board form. both at domestic and EU levels. As expected in a book of this nature, the first chapter contains a detailed discussion and ISBN: 9780414052499 | Price: €325 review of progressing a file through the Injuries Publication: September 2017 Board, from initial consultation with the client to submitting the claim form and accepting or rejecting the award. Then a chapter deals with the practical steps of issuing proceedings and Hepatitis C and HIV Compensation Tribunal. the transferral of proceedings from one court In each chapter, the authors are meticu- to another. Extensive reference has been made lous in examining the issues with recourse to throughout to case law. The chapter on medi- legislation, practice directions, and analysis of cal negligence includes discussion of the Legal reported and unreported cases. The layout and Services Regulation Act 2015, which had been division of the book make it easy to identify and enacted but not commenced at the time of pub- locate the topic you are looking for quickly. The MORTGAGES LAW AND PRACTICE , lication. This will bring significant changes to clear and concise manner in which it is written 2ND EDITION the manner in which medical negligence actions makes the book an excellent reference tool for Neil Maddox had previously been processed. practitioners. It is an invaluable and necessary The new edition of Mortgages Law and A chapter on specialised compensation guide, and great praise is due to the authors for Practice relevant to banking, family, regimes discusses garda compensation, the an excellent publication. company and financial services law specialists, provides an up-to-date Reserve Defence Forces non-statutory com- reference guide for the law and practice pensation scheme, the Civil Defence compen- Joyce A Good Hammond is a partner at Hammond of mortgage suits in Ireland, including sation scheme, compensation under section 6 Good, Solicitors, and is a member of the Law Soci- all relevant case law and statutory and of the Criminal Justice Act 1993, and the ety’s Conveyancing Committee. regulatory changes.

ISBN: 9780414061736 | Price: €245 Publication: July 2017

PLACE YOUR ORDER TODAY roundhall.ie LAW SOCIETY LIBRARY AND [email protected] INFORMATION SERVICES – WE DELIVER! 1800 937 982 (IRE) Judgments database – extensive collection of unreported judgments from 1952 to date, available in PDF format to print or download. Self-service access for members and trainees via the online catalogue.

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Library ad Gazette Oct 2015 chosen.indd 1 17/09/2015 13:04 Law Society Gazette | gazette.ie BOOKS May 2017 59

WALSH ON CRIMINAL PROCEDURE NEW TITLES Round Hall (2016), www.roundhall.ie. ISBN: 978-0-41403-504-1. Price: 395. Dermot Walsh. € AND EDITIONS Writing the foreword to the first edition of this work in 2002, regarded as the ‘gold stan- dard’ on criminal procedure, the late Judge Employment Law, Adrian Hardiman commented on the rapid 2nd Edition pace of change in the field, while recom- Consultant editor, Maeve Regan, mending the book for practitioners and aca- General editor: Ailbhe Murphy demics alike. ISBN: 9781847336764 This second edition is more of the same. NOW IN Format: Hardback STOCK Price: €255 + €5.50 P&P The preface, by Prof Walsh himself, refers Pub date: Mar 2017 to the some 70 acts of the Oireachtas passed in the intervening years that have had an im- Irish Income pact specifically on criminal law and proce- Tax 2017 dure, as well as multiple appellate judgments. Tom Maguire The result is the need for six new chapters. ISBN: 9781526501547 In a near polemic, Walsh is critical of both Format: Hardback NOW IN Price: €225 + €5.50 P&P the Oireachtas and judiciary for a rush STOCK Pub date: April 2017 towards a ‘crime control’ agenda and lessen- ing of human rights values – notably, in the Residential Tenancies case of the latter, in respect of the JC case, Laura Farrell, a Supreme Court judgment that drastically Associate editor: JCW Wylie (and controversially) redefined our law on ISBN: 9781784517410 Format: Hardback the ‘exclusionary rule’, which he describes Price: €195 + €5.50 P&P as a “surprising concession to prosecutorial Pub date: July 2017 expediency”. of this tricky, technical and divisive subject, That apart, he maintains, mostly, an incorporating European law – from whence Medical Law in Ireland, appropriate academic detachment, and the of course much of our domestic law in this 3rd Edition end product is a vast, 2,000-page tome, field derives – and Irish, as well as various Simon Mills & Andrea Mulligan which has at least a starter pack, if not nec- academic views from multiple jurisdictions. ISBN: 9781847669506 Format: Hardback essarily the last word, on virtually any pro- He notes, in particular, the Digital Rights Price: €195 + €5.50 P&P cedural law issue. There is a review of the Ireland case and the rather surprising lack of Pub date: July 2017 institutions – courts, gardaí, prisons, the role response by the Oireachtas to that momen- of the DPP; procedures from arrest and de- tous decision of the Court of Justice of the Succession Act 1965 tention, through prosecution, bail, legal aid, EU striking down the 2006 Data Retention and Related Legislation: trial, conviction, sentence and appeal; in- Directive. A Commentary, vestigative powers and limitations thereon; By way of criticism, the book is a little off 5th Edition Brian Spierin rules of evidence; and the respective roles of the pace on the rights of solicitors to attend at ISBN: 9781784518073 DPP, trial prosecutors, defence and judges. garda interviews with arrested suspects; there Format: Hardback Attention to detail is admirable, and Prof is nothing at all on garda vetting (an issue of Price: €225 + €5.50 P&P Walsh canvasses widely among common law increasing importance in criminal practice); Pub date: May 2017 jurisdictions and the European courts for rel- and the material on suspended sentences sug- evant authorities. The chapter on the 2014 gests clarity on the issue – something most To place an order contact: DNA Database Act – a massive and hugely practitioners would disagree with! But these [email protected] contentious piece of legislation – is particu- are minor caveats on what is, overall, an enor- or [email protected] larly comprehensive, although Prof Walsh mously valuable volume that should be in buy online at can sometimes barely restrain himself from every criminal lawyer’s library. www.bloomsburyprofessional.com trenchant criticism of the Oireachtas. His chapter on garda surveillance, one of Dara Robinson is partner in the Dublin firm the six new offerings, is an excellent overview Sheehan & Partners. LAW SOCIETY PROFESSIONAL TRAINING

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To view our full programme visit www.lawsociety.ie/Lspt DATE EVENT DISCOUNTED FULL FEE CPD HOURS FEE*

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12 May Skillnet Cluster - Essential Solicitor Update 2017 Part II €115 4 General, 1 M & PD plus 1 Regulatory – in partnership with Leitrim, Longford, Roscommon and Sligo Bar (Parts I and II €170) Matters - Accounting and AML Associations Landmark Hotel, Carrick-on-Shannon, Co Leitrim (Hot lunch and networking drinks Compliance (by Group Study) included in price)

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PAUL HANNON 1976 – 2017

he office of Philip tinue his search for justice on Hannon Solici- a higher level. The demand- tors was extremely ing and rigorous role suited shocked and deeply Paul’s ‘up-and-at-them’ spirit saddened by the passing of – he was never one just to talk PaulT Hannon BA, ACA, who about a problem, he had to get died tragically in a road traf- involved and find solutions. A fic incident in the early hours colleague said that you could of Friday 24 March 2017. never have too much work for He is survived and hugely Paul, and that workload, per- missed by his father, retired formed to exacting standards, garda sergeant John, mother was carried out with kindness, Florence, nine brothers and compassion and a smile – a sisters, brothers and sisters- wonderful team player. in-law, nephews and nieces, With a huge zest for life, and extended family. Paul not only excelled in his Paul, who attended Par- career, which included serving teen National School and on the Criminal Law Com- Ardscoil Rís, left his Clare home to work for KPMG in the mittee of the Dublin Solicitors’ Bar Association, but also capital after graduating from the University of Limerick with managed to be a more than useful soccer player (“beautifully a degree in law and accounting. graceful” was the description provided by Parkville Foot- He then served as head of finance of Goal’s development ball Club) who still was an ever-present member of the Law projects in Sierra Leone in 2003. After two years of develop- Society soccer team. A committed Limerick hurling, Mun- ing businesses and small enterprises in underprivileged com- ster rugby and Irish soccer supporter, a marathon runner – he munities, he then decided to become a solicitor and joined his raised a lot of money for Gorta participating in the Berlin brother Philip’s firm in Dublin, where he spent ten years as and other marathons, and the Law Society annual charity an apprentice and senior solicitor. Calcutta Runs – Paul was incredibly widely travelled and A dedicated and enthusiastic member of staff, Paul was wonderful company at any social event. His outgoing and liked and revered by colleagues, clients and peers. Highly in- relaxed manner, his sharp intelligence allied with humour telligent, Paul also had the personality and ability to relate to and compassion, his generosity of spirit, all combined to al- the clients of the firm (which specialises in criminal defence), low Paul to have a large and diverse range of friends across many of whom were in trouble because of addiction, fam- all social strata. ily breakdown, poverty or societal marginalisation. He had Paul enriched the lives of all he came into contact with, that wonderful knack of being able to cross social divides. His and he will be enormously missed by his family, work col- pursuit of justice on their behalf was unrelenting. leagues, both past and in the Central Bank, and his extremely In January 2015, Paul was appointed senior enforcement wide circle of friends. lawyer at the Central Bank. His brief was to investigate the May he rest in peace. consequences of the recent economic crash and to ensure that it didn’t happen again, a role that allowed Paul to con- MPH 62 May 2017 BRIEFING | PRACTICE NOTES Law Society Gazette | gazette.ie

PROBATE, ADMINISTRATION AND TRUSTS COMMITTEE SOLICITORS, BENEFICIARIES AND SECTION 68 LETTERS The issuing of section 68 letters beneficiaries (see practice note, construction, a firm of solicitors tor-executor and the beneficiaries, to beneficiaries is still required in December 2010 Gazette, p56). provides a section 68 letter to ex- to keep those beneficiaries who certain situations as a matter of The Law Society took the ecutors, or in the case of a sole will ultimately bear the costs of ad- professional standards and ethics. view that the beneficiary indirectly practitioner, perhaps to himself ministration informed of the likely The definition of client con- paying costs should receive a copy at the commencement of the ad- costs from the outset. tained in section 2 of the Solicitors of the section 68 letter furnished ministration of an estate, there Solicitors acting in the admin- (Amendment Act) 1994 includes “a to the legal personal representa- may be a separate question as to istration of an estate who are not beneficiary to an estate under a tive. This was the view of the what obligation he or she owes as acting as executor should advise will, intestacy or trust”. Accord- High Court in Condon v Law So- executor to furnish the section 68 their executor client that it is best ingly, since the coming into force ciety of Ireland ([2010] IEHC 52) letter at the time it is issued to any practice to furnish a copy of the of the Solicitors (Amendment Act) and Sandys & anor v Law Society of beneficiary who will ultimately, in section 68 letter or any letter of 1994, it has been understood that Ireland ([2015] IEHC 363). reality, be paying those costs in engagement to the beneficiary or beneficiaries should receive a sec- The recent decision of the the sense that they will come out those beneficiaries from whose tion 68 letter. This could include Court of Appeal in Sandys & anor v of that person’s entitlement under benefit the legal costs will ulti- a residuary beneficiary or benefi- Law Society of Ireland [2015] IECA the estate.” mately be paid, and seek instruc- ciaries, an intestate beneficiary or 395 does not support this view. While it is not clear whether tions so to do. It is then a matter beneficiaries, or where the residue ‘Client’, for the purpose of a solicitor executor is obliged by for the executor client to instruct or any partial intestacy is insuffi- section 68 in the view of the Court statute to provide a copy of such the solicitor as to whether or not to cient to meet costs arising, or any of Appeal, is limited to the client section 68 letter as executor, there issue a copy of the letter to the rel- pecuniary, general or specific ben- giving instructions. In the cases is nonetheless the issue of profes- evant beneficiary or beneficiaries. eficiary. outlined above, the ‘client’ giving sional standards and ethics. When Upon commencement of part The Law Society (primarily instructions was a solicitor execu- the solicitor is also acting as ex- 10, chapter 3, of the Legal Services through its Complaints and Cli- tor and, following the judgment, is ecutor, it remains the view of the Regulation Act 2015, references in ent Relations Committee), when not obliged by statute as a solicitor Law Society that the solicitor- this practice note to section 68 of considering complaints from ben- to furnish those beneficiaries with executor should furnish a copy of the Solicitors (Amendment) Act 1994 eficiaries that they did not receive a copy of the section 68 letter. The the section 68 letter or any letter shall be read as references to sec- a section 68 letter, acknowledged issue of whether a solicitor execu- of engagement to the class of ben- tion 150 of the Legal Services Regu- the distinction between com- tor should furnish himself or her- eficiaries from whose benefit the lation Act 2015, and references to a plaints from those beneficiaries self with a section 68 letter was not legal costs will ultimately be paid letter of engagement shall be read out of whose share of the estate before the court. (normally the residuary legatees). as references to an agreement un- costs will be deducted and com- Paragraph 57 of the judgment It is best and safest practice, both der section 151 of the Legal Services plaints from any other class of states: “If, in accordance with this from the perspective of the solici- Regulation Act 2015.

CONVEYANCING COMMITTEE IF LIFE GIVES YOU LEMONS, CONFIRMATION OF IF IFLIFEWE’RE LIFE GIVES GIVES HERE YOU YOU TO LEMONS HELP LEMONS CONSTRUCTION COSTS WE’REWE’REConsult HERE HERE a Colleague TO TO HELP inHELP It has been brought to the at- solicitors for such a confirmation. tention of the committee that The committee wishes to ConsultConsult a Colleague a Colleaguetotal now confidence now in total in total confidence confidence some lenders have a requirement remind conveyancing solicitors in stage-payment cases that the that they are not trained and do CallCall us onus on01 01284 284 8484 8484 borrower’s solicitor will certify not have competence to certify IF LIFE GIVES YOU LEMONS construction costs to the lending construction costs, this being a WE’RE HERE TO HELPAll callsAll to calls the toConsult the Consult A Colleague A Colleague helpline helpline are treated are treated in the in the institution on the drawdown of job that quantity surveyors, en- stricteststrictest confidence confidence - there - isthere no isneed no toneed give to a givename a nameor number. or number. Consult a Colleague now in total confidence stage payments. gineers and/or architects are A confidentialA confidential free service free service from thefrom DSBA.the DSBA. The committee recently sec- trained to do, and they should Call us on 01 284 8484 www.consultacolleague.iewww.consultacolleague.ie ured the agreement of a lender therefore not give such confirma- All calls to the Consult A Colleague helpline are treated in the strictest confidence - there is no need to give a name or number. to desist from asking borrowers’ tions to lenders.

A4 Consult a collegue.indd 1 26/08/2015 15:50 A confidentialA4 Consult free servicea collegue.indd from 1 the DSBA. 26/08/2015 15:50 www.consultacolleague.ie

A4 Consult a collegue.indd 1 26/08/2015 15:50 Law Society Gazette | gazette.ie BRIEFING | PRACTICE NOTES May 2017 63

TECHNOLOGY COMMITTEE DIGITAL PRIVACY – HOW TO PROTECT YOURSELF AND YOUR DATA

If someone could secretly moni- message, making it unreadable ords are also unprotected. Think tine. Like everything else, if you’re tor your computer history, what to anyone who doesn’t have the about that the next time you dealing with a US company, it is would they find? Photos of your program to decrypt it. Some en- search for something on Google not always private and secure. For family? Your bank details? cryption programs make it impos- or another search engine. example, Dropbox (a cloud service Information in deleted files sible to decipher messages. To avoid exposure, consider that lets you store files as well as can be retrieved years after re- To keep your emails secure, encrypting the data stream bet- send them to one or more people) moval. All computers are vulner- encrypt sensitive messages from ween your computer and the in- is subject to very loose US privacy able and, in the wrong hands, this every email address you use. ternet, making it impossible for laws. In the past three years, hack- information could easily come You can also encrypt email chat an eavesdropper to read email ers have stolen 7 million Dropbox back to haunt you. messages and text messages to headers or to see your searches. passwords. The same goes for your on- ensure that content remains pri- The technology that allows you to It also seems that private line activity. When you send an vate. do this is called a virtual private Dropbox files you share can be email, run a Google search or Pretty Good Privacy (PGP) network (VPN). Your internet traf- logged by search engines, so any- write a Facebook post, you lose encrypts and decrypts emails – a fic still passes through your ISP, one who can find this link can ac- control of how the data is used. free basic version can be found but it’s encrypted, so no useful cess the files. Your message can be read, redi- at GNU Privacy Guard. Alterna- information can be seen. If any- One way to protect yourself is rected, and stored permanently tively, try the encryption desk- body snoops, all they get is a long to only upload encrypted files to by people who do not have (or top available from Symantec (see string of unintelligible gibberish. Dropbox. Another is to look for an need) your permission to do so. symantec.com). This also allows alternative cloud service. The following are a few steps you to encrypt the contents of Find a non-US webmail provider you can take to protect your digi- your computer and safely delete Services like Yahoo mail, Gmail Summary tal privacy that can go a long way files you want removed. and Hotmail are all very conveni- Encrypting all the data you hold towards securing your private ent, but with the emphasis on sec- online is a great start to protect- information, giving you peace of Encrypt messages and headers urity, you can kiss your privacy ing your digital privacy. If you are mind in the process. The email subject line, the recipi- goodbye using these services. To really serious about privacy, con- ent, and the date and time it was protect yourself, use a non-US- sider deleting social networking Encrypt emails and files sent remain intact. This means made service that takes privacy profiles. This is easier said than With an encryption program, no that your internet service provid- and security seriously, for exam- done. Facebook is growing larger, one but you and the person you er and anyone else can see who ple, Century Media. with a vast amount of users. They intend to message can read its you are messaging, when you are don’t want you to leave their contents. This requires that both messaging them, and how often Encrypt your cloud storage platform once they have your in- parties are running the same pro- you’re doing it. Storing data online, or in the formation, and so provide various gram. The program scrambles the Your internet browsing rec- cloud as it is known, is now rou- services for you.

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Library ad Gazette Jan_Feb 2017.indd 1 25/01/2017 15:09 64 May 2017 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

of named clients dated 13 i) Undertaking in respect of in respect of its costs before NOTICE February 2007, named clients dated 19 March the tribunal – said order to be In the matter of Aiden Des- b) Undertaking in respect of 2009, stayed for a period of one year mond, a solicitor practising as named clients dated 3 July 2007, j) Undertaking in respect of from that date. Desmond & Co, Solicitors, 35 2) Failed to respond adequately to named clients dated 2 April Rockgrove, Youghal Rd, Midle- correspondence from the com- 2009, In the matter of Aiden Des- ton, Co Cork, and in the matter plainant, 2) Failed to respond adequately mond, a solicitor practising as of the Solicitors Acts 1954-2011 3) Failed to respond adequately to correspondence from the Desmond & Company, Solici- [8859/DT122/15 and 8859/ to correspondence from the complainant in respect of one tors, 35 Rockgrove, Midleton, DT123/15] Society. or more of the aforementioned Co Cork, and in the matter of Law Society of Ireland undertakings, the Solicitors Acts 1954-2011 (applicant) 7986/DT41/14 3) Failed to respond adequately [8859/DT103/15] Aiden Desmond (respondent 1) Failed to comply in a timely to correspondence from the Law Society of Ireland (applicant) solicitor) Take notice that the Law Society manner with his undertaking Society in respect of one or Aiden Desmond (respondent so- Gazette wishes to correct the no- dated 24 June 2004, more of the aforementioned licitor) tifications made in its April 2017 2) Failed to respond adequately to undertakings. On 10 January 2017, the Solici- issue (p64). In those notifications correspondence from the com- tors Disciplinary Tribunal found in the April 2017 issue, it was no- plainant, The tribunal ordered that the re- the respondent solicitor guilty tified that the respondent solicitor 3) Failed to respond adequately spondent solicitor: of professional misconduct in his was ‘formerly practising’. This was to correspondence from the 1) Do stand censured, practice as a solicitor in that he: in fact incorrect, and the respon- Society. 2) Pay a cumulative sum of 1) Failed to ensure that there dent solicitor was then in practise €5,000 to the applicant’s com- was furnished to the Society and continues to be in practise. 7986/DT42/14 pensation fund, an accountant’s report for 1) Failed to comply in a timely 3) Pay a cumulative sum of the year ended 31 December In the matter of Paul Cunning- manner with one or more of the €5,000 as a contribution to- 2014 within six months of ham, a solicitor practising as following undertakings: wards the costs of the appli- that date, in breach of regu- Cunningham Solicitors, 8 Emily a) Undertaking in respect of cant. lation 21(1) of the Solicitors Square, Athy, Co Kildare, and in a named client dated 29 July Accounts Regulations 2001 (SI the matter of the Solicitors Acts 2004, The applicant appealed the sanc- 421/2001), 1954-2011 [7986/DT40/14, b) Undertaking in respect of tion imposed by the tribunal in 2) Through his conduct, showed 7986/DT41/14, 7986/DT42/14 named clients dated 3 July the above proceedings to the High disregard for his statutory ob- and High Court record no 2006, Court and, on 7 November 2016, ligation to comply with the 2016/113SA] c) Undertaking in respect of a the High Court ordered that: Solicitors Accounts Regulations Law Society of Ireland (applicant) named client dated 18 October 1) The respondent solicitor not and showed disregard for the Paul A Cunningham (respondent 2006, be permitted to practise as a Society’s statutory obligation solicitor) d) Undertaking in respect of sole practitioner or in partner- to monitor compliance with On 5 July 2016, the Solicitors named clients dated 5 March ship; that he be permitted only the regulations and for the Disciplinary Tribunal heard three 2007, to practise as an assistant so- protection of clients and the complaints against the respondent e) Undertaking in respect of licitor in the employment and public. solicitor and found him guilty of named clients dated 10 April under the direct control and misconduct in his practice as a so- 2007, supervision of another solici- The tribunal ordered that the re- licitor in that he had, at the date f) Undertaking in respect of tor of at least ten years’ stand- spondent solicitor: of the referral of the matter to the a named client dated 28 April ing, to be approved in advance 1) Do stand censured, tribunal: 2008, by the applicant – said order to 2) Pay a sum of €1,000 to the g) Undertaking in respect of be stayed until 1 March 2017, compensation fund, 7986/DT40/14 named clients dated 19 March 2) The respondent solicitor pay a 3) Pay a sum of €200 towards the 1) Failed to comply in a timely 2009, sum of €5,000 to the compen- whole of the costs of the Law manner with one or more of h) Undertaking in respect of sation fund, Society of Ireland within 12 the following undertakings: named clients dated 19 March 3) The respondent solicitor pay a months of the making of the a) Undertaking in respect 2009, sum of €5,000 to the applicant order. Law Society Gazette | gazette.ie BRIEFING | REGULATION May 2017 65

In the matter of Raymond of the Solicitors Acts 1954-2011 the respondent solicitor guilty In the matter of Peter Downey, O’Meara, a solicitor formerly [3976/DT74/15] of misconduct in his practice as a solicitor practising as Eagle- practising as O’Meara & Co, Law Society of Ireland (applicant) a solicitor in that he: ton Downey, Solicitors, at Solicitors, Clare Street, Ne- Peter D Jones (respondent solici- 1) Failed to use his best en- Suite 1155, Fitzwilliam Busi- nagh, Co Tipperary, and in tor) deavours to ensure that a fee ness Centre, 77 Sir John Rog- the matter of the Solicitors Acts On 9 February 2017, the Solici- note dated 16 March 2012, erson’s Quay, Dublin 2, and in 1954-2011 [8764/DT153/15] tors Disciplinary Tribunal found totalling €1,691.24 due and the matter of the Solicitors Acts Law Society of Ireland (applicant) the respondent solicitor guilty of owing to counsel in relation 1954-2011 [12722/DT23/16 Raymond O’Meara (respondent misconduct in his practice as a so- to a case in which he briefed and High Court record no solicitor) licitor, in that he failed to comply him, was discharged, 2017/12SA] On 18 January 2017, the Solici- with an undertaking furnished to 2) Failed to respond adequately Law Society of Ireland (applicant) tors Disciplinary Tribunal found the complainants on 23 February or at all to some or all of Peter Downey (respondent solici- the respondent solicitor guilty of 2005 in respect of his named cli- the correspondence sent to tor) professional misconduct in that ent and borrowers and property him by the Society, particu- On 14 November 2016, the he failed to ensure that there at Mullingar, Co Westmeath, in a larly letters dated 6 Febru- Solicitors Disciplinary Tribunal was furnished to the Society an timely manner or at all. ary 2014, 20 March 2014, found the respondent solicitor accountant’s report for the year The tribunal ordered that the 25 April 2015, and 18 May guilty of professional miscon- ended 31 December 2014 within respondent solicitor: 2015, duct, in that he failed to en- six months of that date, in breach 1) Do stand admonished and ad- 3) Failed to attend a meeting of sure there was furnished to the of regulation 21(1) of the Solici- vised, the Complaints and Client Society an accountant’s report tors Accounts Regulations 2001 (SI 2) Pay a sum of €3,500 to the Relations Committee on 21 for the year ended 31 Janu- 421/2001). compensation fund, and July 2015, as required. ary 2015 within six months of The tribunal ordered that the 3) Pay a sum a €2,500 towards that date, in breach of regula- respondent solicitor: the costs of the Law Society of The tribunal ordered that: tion 21(1) of the Solicitors Ac- 1) Do stand censured, Ireland. 1) The respondent stand cen- counts Regulations 2001 (Statutory 2) Pay a sum of €500 to the com- sured, Instrument 421/2001). pensation fund, In the matter of Eoin Dee, 2) The respondent pay the sum The tribunal sent the matter 3) Pay a sum of €1,000 as a con- solicitor, formerly of Thomas of €2,500 to the compensa- forward to the High Court and, tribution towards the costs of House, 47 Thomas Street, tion fund, on Monday 27 February 2017, the Law Society. Waterford, and in the matter 3) The respondent pay the sum the High Court ordered that, of the Solicitors Acts 1954-2011 of €1,691.24 as restitution to within nine months from that In the matter of Peter D Jones, [8243/DT146/15] counsel, and date, the respondent solicitor: a solicitor practising as Peter D Law Society of Ireland (applicant) 4) The respondent pay the sum 1) Pay a sum of €500 to the Jones & Company, Solicitors, Eoin Dee (respondent solicitor) of €2,500 as a contribution compensation fund, Church Lane, Mullingar, Co On 23 February 2017, the Solici- towards the whole of the 2) Pay a sum a €1,000 towards Westmeath, and in the matter tors Disciplinary Tribunal found costs of the Society. the costs of the Law Society.

Stephenson Solicitors’ 31st Probate Seminar THE PROBATE DANCE IN OUT AND ALL ABOUT Friday, 12th May 2017, The Westbury Hotel

We will commence with our usual updates in case-law, n When a beneficiary wants “out”: The most tax efficient way legislation and practice and end with a Q&A session with to facilitate this with precedents and check lists. our panel of experts. In between, we will be analysing: n What is or should be “in” Estate and Trust accounts and who gets them? The startling effect of Sandy v Law Society 20/12/2016 n Pensions: Which are “in” or “out” of the estate? Tax planning and the Law Society’s view on s.68 in light of same. re same, foreign policies – and the charge to CAT. We will also consider s.150 of the Legal Services Regulation Act 2015 n The Brewster case: Cohabitants’ pensions and the new . Stephenson Solicitors 55 Carysfort Avenue, death-bed marriage rule in pension schemes. n For further details and booking form, see www. Blackrock, Dwelling House Relief, post 25 December 2016. Co Dublin. n Foreign assets, which are “in” or “out” for the IRA/CAT-two stephensonsolicitors.com and the April issue of the Phone: +353 1 2756759 different things! Law Society Gazette. Places are filling up fast, so Fax: +353 1 2109845 n Assets passing to spouses: When are they out of the charge booking is advisable. www.stephensonsolicitors.com to tax here but subject to foreign tax? We look forward to seeing you all there. 66 May 2017 BRIEFING | EURLEGAL Law Society Gazette | gazette.ie

NEWS FROM THE EU AND INTERNATIONAL AFFAIRS COMMITTEE PIC: GETTY IMAGES EDITED BY TP KENNEDY, DIRECTOR OF EDUCATION, LAW SOCIETY OF IRELAND LETTING THE CAT OUT OF THE INDUSTRIAL BAG

arlier this year, the General However, it was not until Article 340 of the TFEU unlawfully, since the length of the Court ordered the EU to pay November 2011 – five years and provides that, in the case of non- original proceedings was excessive, damagesE to Gascogne and Gas- nine months after the launch of contractual liability, the EU shall thus breaching Gascogne’s right to cogne Sack Deutschland GmbH the action for annulment – that make good any damage caused adjudication within a reasonable (‘Gascogne’), due to the excessive the court actually delivered its by its institutions, for example, period. The court noted that length of its previous adjudica- judgment, in which it upheld the the European Parliament and the the period of five years and nine tion of a challenge to a European commission’s 2005 decision. CJEU/General Court. months (including 46 months Commission competition law in- Gascogne appealed the Whereas any disputes between the end of the written fringement decision. General Court’s decision to the involving the contractual liability proceedings and the opening of In addition, the court’s Court of Justice of the European of the EU should be addressed the oral proceedings) was not decision in Gascogne Sack Union (CJEU). As part of its by the governing law of contract, justified by the specific factual, Deutschland GmbH and Gascogne pleadings, Gascogne argued that article 268 grants the CJEU and legal or procedural complexity of v European Union (Case T-577/14, the CJEU should set aside the the General Court the jurisdiction Gascogne’s action for annulment. 10 January 2017) also contains 2011 judgment or, alternatively, to hear disputes regarding the non- In reaching this conclusion, some interesting parallels with reduce the €13.2 million fine contractual liability of the EU. the General Court compared relevant case law under both the to take account of the adverse the length of the challenge to European Convention on Human financial consequences of the Right to a timely trial the commission’s 2005 decision Rights (ECHR) and Bunreacht na General Court’s failure to Article 47 of the EU Charter of to the average length of similar hÉireann. deal with the original action Fundamental Rights provides that proceedings. The court noted for annulment in a reasonable all legal and natural persons are that, in cases concerning Challenge to findings time frame. In P Gascogne Sack entitled to a fair and public hearing competition law, legal certainty In 2002, the commission, on the Deutschland GmbH v European within a reasonable time by an is of utmost importance. On that basis of whistle-blower evidence, Commission (Case C-40/12, 26 independent and impartial tribunal basis, the court considered that launched an investigation under November 2013), the CJEU established by law. (Proclaimed in the appropriate period between what is now article 101 of the rejected Gascogne’s appeal, 2009, the charter became legally the end of the written part of Treaty on the Functioning of the EU while, at the same time, noting binding on the EU, including the proceedings and the opening (TFEU) regarding alleged price that if the duration of the original its institutions, and EU member of the oral part should be, and fixing, market sharing, and other proceedings before its sister states with the entry into force of generally is, 15 months. collusion in the industrial plastic court was excessive, this could the Treaty of Lisbon in 2009). Article Nevertheless, the court also bags sector in Western Europe. possibly give rise to liability on 47 of the charter reflects the text of bore in mind that competition In late 2005, the commission the part of the EU for damages. article 6(1) of the ECHR. law and, in particular, challenges imposed aggregate penalties Accordingly, in August 2014, The General Court stated that against the commission’s decisions of €290 million on various Gascogne brought an action for the non-contractual liability of the entail a high degree of complexity. participants in this cartel, damages under article 268 of EU may be invoked when three This is due, in part, to the length including Gascogne, which was the TFEU before the General cumulative conditions are fulfilled: of the decisions (in this instance, fined €13.2 million. In February Court. Gascogne argued that the • The conduct of an EU 114 pages), coupled with the of the following year, Gascogne excessive length of the previous institution must be unlawful, requirement to make a detailed sought the annulment of the proceedings before a different • Actual damage must be suffered, assessment of the numerous and commission’s decision before composition of the General Court and complex facts of the case. the General Court. These breached its right to a timely • There must be a causal link Furthermore, the court proceedings do not have a trial, causing it both material between the unlawful conduct also factored in the parallel suspensive effect. Accordingly, and non-material harm. The and the damage suffered. treatment of the 11 other actions Gascogne chose to pay interest on applicant sought approximately being taken against the same the fine, while providing a bank €4 million in damages from the The General Court held that it, commission ‘industrial bags’ guarantee to the commission. EU as compensation. as an EU institution, had acted cartel decision. On this basis, the Law Society Gazette | gazette.ie BRIEFING | EURLEGAL May 2017 67 PIC: GETTY IMAGES

I made a bags of that…

IT IS HIGHLY UNLIKELY THAT A SUCCESSFUL ACTION FOR DAMAGES FOR BREACH OF THE RIGHT TO A TIMELY TRIAL WILL RESULT IN ANYTHING OTHER THAN A SMALL DENT IN THE OVERALL OUTGOINGS OF ANY UNDERTAKING THAT IS FINED BY THE COMMISSION FOR INFRINGING COMPETITION LAW

court considered it justifiable to have been appropriate to deal with stipulated that a party seeking to it had suffered material damage in increase the appropriate length of Gascogne’s action for annulment, establish liability on the part of the the form of late-payment interest, the proceedings by a period of one given the degree of factual, legal and EU has the burden of producing paid at a rate of 3.56% during month per additional case, thus procedural complexity. It therefore cogent evidence as to the existence the ‘excess’ of 20 months. The raising the reasonable duration of follows that the proceedings before and extent of the damage alleged. court rejected this argument, on the relevant proceedings by a total the court were unlawfully and In relation to material damage the basis that Gascogne did not of 11 months. unjustifiably excessive by a period of suffered, the court accepted that show that the payment of this In conclusion, the court 20 months. the costs of the guarantee paid by interest outweighed the benefit considered that a period of 26 Gascogne securing the payment that it gained by not paying the months (that is, 15 months plus 11 Actual damage of the €13.2 million fine during commission’s fine on time, thus months) between the end of the Gascogne alleged that it suffered the extra 20 months amounted to having the value of an additional written part, and the opening of the both material and non-material actual and material damage. €13.2 million at its disposal for a oral part of the proceedings, would damage. The General Court The applicant also argued that further 20 months. 68 May 2017 BRIEFING | EURLEGAL Law Society Gazette | gazette.ie

In terms of non-material As a result, the General Court Turning to our own primary the similar situation under damage suffered, the applicant awarded damages of €47,064.33 law, Clarke J stated that the national law, whereby excess alleged that the inordinate length to Gascogne as compensation for Constitution recognises the delay in Irish court proceedings of the original proceedings material harm suffered due to the right to a timely trial, while might, depending on the damaged its corporate reputation. payment of additional bank costs. also stipulating that an order circumstances, result in criminal This argument was dismissed In addition, aggregate damages of prohibition may not be proceedings being accelerated, for lack of evidence. Secondly, of €10,000 were awarded to the the only remedy available in ‘struck out’, and/or damages Gascogne argued that the length applicant for the non-material circumstances of prosecutorial/ being awarded. of the original proceedings had a harm caused by the excessive judicial delay. Indeed, the The General Court is clearly negative impact on its directors uncertainty created by the length Supreme Court recognised that sending a strong message to itself and employees. The court held of initial proceedings before the damages may be available for and to its sister court, the CJEU, that such alleged non-material General Court. infringing the constitutional that cases should be processed damage was not at issue in the right to timely court pro- efficiently. While a failure to case: if Gascogne’s directors and/ Damages under Irish law ceedings. adjudicate within a reasonable or employees wanted to seek As mentioned above, the The assessment of whether time period will have no bearing compensation for any alleged fundamental right to timely damages for a breach of a on whether the commission’s damage suffered, they should court proceedings is recognised constitutional right are available finding of a competition law bring actions for damages in by the ECHR (for example, should be examined first, since breach is valid, or whether a their own right. Finally, the the 14 March 2017 judgment damages for an infringement of judgment of the CJEU/General court recognised that, while in Comna de Jos Greek-Catholic the ECHR may only be awarded Court should be set aside, an uncertainty is clearly inherent Parish v Romania). In addition, where no other financial redress applicant does have the chance to all litigation, Gascogne the Constitution also guarantees is available. Clarke J also stated of seeking some recompense was placed in a situation of a right to a timely trial. Key that the issue of whether through a damages action. uncertainty that went beyond issues flowing from these similar damages should be awarded will That said, given the often the norm. This adversely rights were addressed by Clarke require a careful analysis of the high level of financial penalties affected both the management J of the Supreme Court in Nash v facts, on a case-by-case basis, in levied by the commission, it is and commercial strategy of The Director of Public Prosecutions particular as to whether damages highly unlikely that a successful Gascogne, thus causing it non- (24 October 2016). are an appropriate remedy and, action for damages for breach material damage. Clarke J noted that, under if so, the appropriate amount. of the right to a timely trial The court found that a causal the European Convention on will, in and of itself, result in link existed between excessive Human Rights Act 2003, a person Assessment anything other than a small length of the proceedings and who suffers loss or damage as The decision of the General dent in the overall outgoings of the damage suffered due to the a result of an infringement of Court in January 2017 shows any undertaking that is fined by payment of bank guarantee costs the ECHR by the State may, if that excessive delay in EU court the commission for infringing during the ‘excess’ of 20 months. no other remedy is available, be proceedings is an actionable competition law. This situation would not have awarded financial compensation. breach, to be addressed by arisen had the proceedings This legislation also contains bringing an action for damages Cormac Little is a partner and head before the General Court been a general limitation period of under article 268 of the TFEU. of the competition and regulation more efficient. one year. This should be contrasted with unit at William Fry.

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law society.indd 1 18/01/2017 10:55 Law Society Gazette | gazette.ie May 2017 69 PROFESSIONAL NOTICES NOTICES

of 3 Abbey Terrace, Naas, Co RATES Kildare, and late Mill Lane Man- or Nursing Home, Mill Lane, Naas, Co Kildare, who died on 25 PROFESSIONAL NOTICE RATES October 2016. Would any person RATES IN THE PROFESSIONAL NOTICES SECTION ARE AS FOLLOWS: holding or having knowledge of the whereabouts of a will made by • Wills – €147 (incl VAT at 23%) the above-named deceased on 21 • Title deeds – €294 per deed (incl VAT at 23%) January 1989 or any subsequent • Employment/miscellaneous – €147 (incl VAT at 23%) will made by him please contact Joseph Morrin, Morrin & McCo- HIGHLIGHT YOUR NOTICE BY PUTTING A BOX AROUND IT – 33 EXTRA € nnell, Solicitors, Trident House, ALL NOTICES MUST BE PAID FOR PRIOR TO PUBLICATION. CHEQUES SHOULD BE Dublin Road, Naas, Co Kildare; MADE PAYABLE TO LAW SOCIETY OF IRELAND. Deadline for June 2017 Gazette: 15 May. DX 49017 Naas; tel: 045 881 055, email: [email protected] For further information, contact the Gazette office on tel: 01 672 4828. No recruitment advertisements will be published that include references to ranges of post-qualification experi- Kerrigan, Brigid (orse known ence (PQE). The Gazette Editorial Board has taken this decision based on legal advice, which indicates that as Mary B or Breda) (deceased), such references may be in breach of the Employment Equality Acts 1998 and 2004. late of 15 St James Terrace, South Circular Road, Dolphin’s Barn, Dublin 8. Would any person hav- WILLS ported to have been made by the 046 907 6300, email: solicitors@ ing knowledge of any will made Cooney, Gerard (Gerard Joseph above-named deceased, or of any steenoreilly.ie by the above-named deceased, Cooney) (deceased), formerly of firm that is holding same, please who died on 15 January 2004, 67 Lorcan Road, Santry, Dublin 9, contact Steen O’Reilly, Solicitors, Fegan, Cathal (otherwise please contact Ferrys Solicitors, who died on 4 March, 2017. Would 31/34 Trimgate Street, Navan, Fagan, Cathal) (deceased), late Inn Chambers, 15 Upper Ormond any person having knowledge of Co Meath; DX 36 003 Navan; tel: of Cloonglasney, Knockanillaun, Quay, Dublin 7; tel: 01 677 9408, the whereabouts of any will made 046 907 6300, email: solicitors@ Ballina, Co Mayo (formerly of fax: 01 873 2976, email: info@ by the above-named deceased, or steenoreilly.ie Enniscrone, Co Sligo, and for- ferrysolicitors.com if any firm is holding same, please merly of 130 Clea Road, Keady, contact Christina Sauer-Dechant, Eustace, John (deceased), late Co Armagh) who died on 28 Kerrigan, Margaret (deceased), solicitor, Charltons Solicitors, of Ballyconvrey, Enniscorthy, Co February 2017. Would any per- late of 15 St James Terrace, South 70 George’s Street Lower, Dun Wexford, who died on 7 Sep- son have the knowledge of the Circular Road, Dolphin’s Barn, Laoghaire, Co Dublin; tel: 01 230 tember 2000. Would any person whereabouts of any will made by Dublin 8. Would any person hav- 2881, email: [email protected] having knowledge of the where- the above-named deceased please ing knowledge of any will made by abouts of any will made or pur- contact Lynda Smyth, Coyle Ken- the above-named deceased, who Eustace, Breda (deceased), late ported to have been made by the nedy Smyth, Thomas Street, Cas- died on 23 March 1991, please of Apartment 25, Stanford, Goats- above-named deceased, or of any tleblayney, Co Monaghan; tel: 042 contact Ferrys Solicitors, Inn town, Dublin 14, who died on firm that is holding same, please 974 0010, email: [email protected] Chambers, 15 Upper Ormond 24 May 2015. Would any person contact Steen O’Reilly, Solicitors, Quay, Dublin 7; tel: 01 677 9408, having knowledge of the where- 31/34 Trimgate Street, Navan, Griffin, Edward (otherwise fax: 01 873 2976, email: info@ abouts of any will made or pur- Co Meath; DX 36 003 Navan; tel: Edmond) (deceased), formerly ferrysolicitors.com 70 May 2017 Law Society Gazette | gazette.ie NOTICES PROFESSIONAL NOTICES

Lalor, Gabrielle (deceased), late who died on 5 August, 2016. cation before the county registrar named within 21 days from the of 1 Luttrell Park Crescent, Cas- Would any person having knowl- for the county of Tipperary at the date of this notice. tleknock, Dublin 15. Would any edge of the whereabouts of any end of 21 days from the date of this In default of such notice be- person holding or having knowl- will executed by the said deceased notice and will apply for such dir- ing received, the applicant intends edge of a will made by the above- please contact McAlinden & Gal- ections as may be appropriate on to proceed with the application named deceased, who died on 24 lagher Solicitors, Main Street, the basis that the person or persons before the county registrar at the March 2016, please contact Gart- Ashbourne, Co. Meath; tel: 01 835 beneficially entitled to the superi- end of 21 days from the date of lan Furey Solicitors, 20 Fitzwil- 1107; email: ashbourne@mcaglaw. or interest including the freehold this notice and will apply to the liam Square, Dublin 2; reference com reversion in the aforesaid premises county registrar for the county ERF/LAJ103/0001; tel: 01 799 are unknown and unascertained. and city of Dublin for directions 8000, email: [email protected] TITLE DEEDS Date: 5 May 2017 as may be appropriate on the basis In the matter of the Landlord Signed: Butler Cunningham & that the person beneficially en- Leavy, Clare (deceased), late of and Tenant Acts 1967-2005 and Molony (solicitors for the applicant), titled to the superior interest in- Middleton, Cloughran, Co Dub- in the matter of the Landlord Slievenamon Road, Thurles, Co cluding the freehold reversion in lin, who died on 6 February 2017. and Tenant (Ground Rents) (No Tipperary each of the aforesaid premises are Would any person having knowl- 2) Act 1978 and in the matter unknown and unascertained. edge of the whereabouts of any of the premises now known as In the matter of the Landlord Date: 5 May 2017 will made or purported to have ‘Padua’, Upper Main Street, and Tenant Acts 1967-2005 Signed: O’Callaghan Kelly (solicitors been made by the above-named Borrisoleigh, Co Tipperary, and and in the matter of the Land- for the applicant), Mounttown House, deceased, or if any firm is holding in the matter of an application lord and Tenant (Ground Rents) 62-63 Lower Mounttown Road, Dun same, please contact Cora Hig- by Ann Slattery (No 2) Act 1978: an application Laoghaire, Co Dublin gins, Regan McEntee and Part- Take notice that any person hav- by Frank Smith and Frederick ners, Solicitors, High Street, Trim, ing any interest in the freehold Smith In the matter of the Landlord Co Meath; DX 92 002 Trim; tel: estate or any superior leasehold Take notice that any person hav- and Tenant Acts 1967-2005 and 046 943 1202, email: chiggins@ estate of the following property: ing any interest in the freehold in the matter of the Landlord reganmcentee.ie ‘Padua’, Upper Main Street, Bor- estate (or any intermediate in- and Tenant (Ground Rents) (No risoleigh, Co Tipperary, being the terest) of the piece of parcel of 2) Act 1978 and in the matter of Murphy, Dorothy (otherwise premises assured and assigned by ground and the buildings thereon application by William S Jagoe Dot) (deceased), late of 1A Have- an indenture of assignment dated known as Sandford Service Station and Denis Rebecca Jagoe of lock Square Gardens, off Bath 9 July 1919 between John Young and Sandford Stores, Ranelagh, 11 Park Avenue, Sandymount, Avenue, Sandymount, Dublin, who junior of the first part, John Young Dublin 6, held with other prop- Dublin 4 died on 8 November 2015. Would senior of the second part, Martin erty under an indenture of lease in All that and those the plot of any person having knowledge of Hogan of the third part and Denis reversion dated 3 February 1903 ground being part of the garden the whereabouts of any will made O’Shea of the fourth part, therein between John Lewis Riall (first of the dwellinghouse and prem- or purported to have been made said to be held as a tenancy from part), Robert Smith Chatterton ises known as 21 Gilford Drive, by the above-named deceased, or year to year and therein described and Elizabeth Ricky (second part), Sandymount, in the parish of St of any firm that is holding same, as “all that and those part of the Charles Coates (third part) for the Mary in the city of Dublin, which please contact Gerald Griffin, lands of Cappanilly containing in term of 999 years from 29 Sep- ownership of the plot of ground is solicitor, of St Paul’s Church, or about 20 perches Irish planta- tember 2009, subject to the yearly in the ownership of the applicants. North King Street, Dublin 7; tel: tion measure, situate in the barony rent of £37.12s.6p and therein de- Take notice that William S 01 617 4846, email: gnagriffin@ of Kilnamanagh Upper and county scribed as “all that and those that Jagoe and Denise Rebecca Jagoe gmail.com of Tipperary”, subject to the yearly parcel of land being part of the intend to submit an application to rent, should give notice of their in- lands formerly called Lundsland the county registrar for the coun- O’Brien-Livesey, Mary Jose- terest to the undersigned. together with the dwellinghouses, ty/city of Dublin for the acquisi- phine (deceased), late of Cas- Further take notice that the offices and gardens thereon situate tion of the freehold interest in the tlerickard, Longwood, Co Meath, applicant intends to submit an ap- on the west side of the High Road aforesaid properties, and any party who died on 13 January 2017. plication to the county registrar leading from Dublin to Milltown asserting that they hold a superior Would any person having knowl- for the county of Tipperary for the by Cullenswood in the parish of St interest in the aforesaid premises edge of the whereabouts of any acquisition of the freehold inter- Peter and county of Dublin”. (or any of them) are called upon to will made by the above-named est and all intermediate interests Take notice that Frank Smith furnish evidence of the title to the deceased please contact Sarah Fly- in the aforesaid property, and any and Frederick Smith intend to aforementioned premises to the nn, Corrigan & Corrigan, Solici- party asserting that that they hold submit an application to the coun- below named within 21 days from tors, 3 St Andrew Street, Dublin 2; a superior interest in the aforesaid ty registrar for the county of Dub- the date of this notice. tel: 01 677 6108, fax: 01 679 4392, property is called upon to furnish lin for acquisition of the freehold In default of any such notice email: [email protected] evidence of their title to the below interest in the aforesaid premises, being received, William S Jagoe named within 21 days from the and any party asserting that they and Denise Rebecca Jagoe intend O’Flaherty, Mary (otherwise date of this notice. hold a superior interest in the to proceed with the application known as Maura) (deceased), In default of any such notice aforesaid premises are called upon before the county registrar at the late of St Jude’s, Lagore Little, being received, the applicant in- to furnish evidence of the title to end of 21 days from the date of Ratoath, in the county of Meath tends to proceed with the appli- the aforesaid premises to the below this notice and will apply to the Law Society Gazette | gazette.ie May 2017 71 PROFESSIONAL NOTICES NOTICES

county registrar for the county/ ing any interest in the freehold Dublin for acquisition of the city of Dublin for directions as estate of the following prop- freehold interest in the aforesaid Is your client may be appropriate on the ba- erty: 29B Prussia Street, Dublin property. Any party asserting that sis that the persons beneficially 7, held under lease dated 23 they hold a superior interest in interested in selling entitled to the superior interest October 1929 and made between the aforesaid premises are called or buying a including the freehold reversion in Guy Brabazon Pilkington and upon to furnish evidence of the 7-day liquor licence? each of the aforesaid premises are Mary Nerissa Hunt of the first title to the aforementioned prem- unknown or unascertained. part, Mary Florence Walker of ises to the below named within 21 If so, contact Liquor Date: 5 May 2017 the second part, and Maurice days from the date of this notice. Licence Transfers Signed: Peter J McKenna (solicitor Joseph Corcoran of the third part In default of any such notice for the applicants), 18 Sandymount for a term of 99 years from 29 being received, Prussia Proper- Contact Green, Dublin 4 September 1929, subject to the ties Limited intends to proceed yearly rent of £45. with the application before the 0404 42832 In the matter of the Landlord Take notice that Prussia county registrar at the end of 21 and Tenant Acts 1967-2005 and Properties Limited, being a per- days from the date of this notice in the matter of the Landlord son entitled under the above and will apply to the county reg- premises are unknown or unas- and Tenant (Ground Rents) (No entitled acts, proposes to pur- istrar for the city of Dublin for certained. 2) Act 1978 and in the matter chase the fee simple in the lands directions as may be appropriate Date: 5 May 2017 of 29B Prussia Street, Dublin described in paragraph 1 hereof on the basis that the persons ben- Signed: Patrick F O’Reilly & 7: an application by Prussia and, for that purpose, intends eficially entitled to the superior Company (solicitor for the applicant), Properties Limited to submit an application to the interest including the freehold 9/10 South Great George’s Street, Take notice that any person hav- county registrar for the city of reversion in each of the aforesaid Dublin 2

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If you would like more information on how to leave a legacy to Make-A-Wish, please contact Susan O’Dwyer on 01 2052012 or visit www.makeawish.ie 72 May 2017 FINAL VERDICT Law Society Gazette | gazette.ie

INTERNA REVECTA LOCUS STANDI ‘Does a phallic symbol have locus standi?’ was the theme of at talk given by Gilead Cooper QC at a London conference on 3 April, Legal Cheek reports. Cooper’s presentation was actually based on a real case, Bumper Development Corpo- ration Ltd v Commissioner of Police (1991), where the courts considered whether a Hindu Sivalingam – a stone phallus of religious worship – had stand- ing to sue for the recovery of a looted sculpture. The High Court said yes, while the Court of Appeal left matters open. The debate was all part of his chambers’ commercial liti- BUZZFEED GETS BUZZFED gation conference in London. A defamation claim against the own medicine, lawyers filed a published a leaked dossier about Five barristers gave short pre- BuzzFeed website included a document headlined: ‘Six ways Donald Trump’s relationship sentations on cases – four real ‘clickbait’-style headline in an BuzzFeed has misled the court with Russia, containing a number and one imagined – reminis- official court document, Business (number two will amaze you) – of unverified allegations. The re- cent of the TV series Would I Insider UK reports. and a picture of a kitten!’ port also seemed to falsely claim Lie to You? Giving them a taste of their Earlier this year, BuzzFeed that Russian technology executive Aleksej Gubarev was involved in hacking against the Democratic COMMA CHAMELEON Party. Unhappy that he had been In Maine, USA, the ‘Oxford ing, drying, marketing, storing, named in the report, Gubarev, comma’ helped a group of truck packing for shipment or distri- via his Boston-based lawyers, drivers win a dispute about bution of: brought a legal action against the overtime pay, The New York 1) Agricultural produce, New York-based internet media Times reports. 2) Meat and fish products, and company. The Oxford (or serial) 3) Perishable foods”. The document was in res- comma is used before the ponse to the website’s applica- words ‘and’ or ‘or’ in a list of The drivers argued that, due to a tion to have the matter moved to three or more items, and helps lack of a comma between ‘pack- a New York court. The official provide clarity. ing for shipment’ and the words court document includes a photo An appeal court decision on ‘or distribution’, the law did not of a kitten, listed as ‘Exhibit 41’ 13 March sided with the deliv- refer to ‘packing’ and ‘distribu- – the cat purportedly belongs to ery drivers for Oakhurst Dairy tion’ as two separate activities, Gubarev’s lawyer, Fray-Witzer. because the lack of an Oxford but rather a single activity of hour laws must be construed The 22-page document discusses comma led to ambiguity in the ‘packing’. Since the drivers dis- liberally in order to accomplish non-kitten related matters such as meaning of a section of Maine’s tribute the goods – but do not their remedial purpose, we jurisdiction and trial location. overtime laws. pack them – they argued they adopt the drivers’ narrower The law says that the fol- were eligible for overtime pay. reading of the exemption.” lowing activities do not qualify Judge David J Barron said: The decision could cost the Thanks to Fintan Price (a TY for overtime pay: “the canning, “Because, under Maine law, am- dairy company an estimated student from Scoil Mhuire, Clane) processing, presenting, freez- biguities in the state’s wage and $10 million. who compiled this month’s column. Expect commitment.

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LEGAL | ACCOUNTING | FINANCIAL SERVICES | FUNDS | IT | CONSTRUCTION | HR RECRUITING EXCELLENCE Legal Recruitment Specialists Legal Recruitment Specialists

We provide clear advice leading to informed We provide clear advice leading to informed decision making. decision making.

We have significant new opportunities for practitioners across many practice areas from Recently We have significant new opportunities for practitioners across many practice areas from Recently Qualified to Partner level. The following are examples of the roles our clients are seeking to fill. Qualified to Partner level. The following are examples of the roles our clients are seeking to fill. Please make sure to visit our website for other positions. Please make sure to visit our website for other positions. Banking/Aviation Lawyer – 1 yr+ pqe – PP0375 The Requirements: You will be a qualified solicitor or barrister with expertise in Asset Finance – Assistant to Senior Associate Intellectual Property Specialist – TheAsset Role: Finance Our Client, – aAssistant premier corporate to Senior law firm, Associate is seeking to recruit a lawyer to bothIntellectual private and dataProperty security Specialist law gained – either in private practice or as in- Ajoin first its Banking rate solicitorand Financial is being Services sought Department for the who large act for and both domestic and houseAssociate counsel. to Senior Associate successfulA first rate Asset solicitor Finance is being Group sought of this for Bigthe large6 firm. and The AnAssociate excellent to opportunitySenior Associate has arisen for a specialist internationalsuccessful clients. Asset You Finance will be dealing Group with of asset this financeBig 6 firm. transactions The but will also An excellent opportunity has arisen for a specialist Group has unrivalled expertise specialising in aircraft and Competitionintellectual and property Regulated practitioner Markets to joinSolicitor a leading – Assistant Irish law to beGroup required has to unrivalledassist on general expertise banking specialisingmatters and capital in aircraft market transactions.and intellectual property practitioner to join a leading Irish law bigThe ticketRequirements: leasing You matters. will be aYou qualified will be Solicitor working or inBarrister asset with at least 1 Associatefirm. You – J00469will have experience of acting for a blue chip big ticket leasing matters. You will be working in asset firm. You will have experience of acting for a blue chip financeyears’ experience or in generalin aviation banking banking includingor commercial excellent lawacademics, and commercial The clientRole: An base opportunity dealing has with arisen complex in a Top matters. 6 Dublin lawYou firm will foralso a Solicitorbe to interestedawarenessfinance andor in in adeveloping stronggeneral work banking ethic.an expertise or commercial in this area. law and join aclientits team Competition base player dealing & with Regulated strongwith Markets complex technical Group matters. skills.dealing This Youwith Europeanwillrepresents also andbe a Irish interested in developing an expertise in this area. law significantaincluding team player compliance opportunity with & strong regulation. for technicalcareer There advancement is skills. a wide This variety represents for of workthe righton aoffer Banking/RegulatoryBanking Solicitor – AssociateSolicitor – to Senior Associate – J00480 in acandidate. significantbroad range ofopportunity industrial sectors. for career advancement for the right NewlyTheBanking/Regulatory Role: Qualified This Top 6 Dublinto AssistantSolicitor law firm –requires an experienced solicitor to join its The candidate.Requirements: You will have experience of mid to top tier practice coupled ABankingNewly pre-eminent Qualifiedand Finance Dublin toGroup Assistant based dealing corporate with Irish and law international firm is seeking banks and also withLitigation/Defence a strong academic background Personal and Injury excellent – Associate technical skills. tofinancialA pre-eminentrecruit institutions a solicitor Dublin and to corporations. joinbased its corporateBanking and law Financial firm is seeking OurLitigation/Defence Client, an Insurance Personal and RiskInjury law – Associatefirm, is seeking to ServicesTheto recruit Requirements: Groupa solicitor Theto work roleto joinin on question itsfinancing Banking is for antransactions and experienced Financial solicitorand who can CommercialrecruitOur Client, a Litigation/ Property/Real an Insurance Personal andEstate InjuryRisk Solicitor law Solicitor firm, – istoAssociate seekingassist in to to adviseassistServices with on aGroup regulatory wide range to work ofissues issues on financingfor including: both domestic Portfoliotransactions sales; and Securedand facilities: Seniordealingrecruit Associate a with Litigation/ all –aspects MB0012 Personal of personal Injury Solicitorinjury litigation to assist including in internationalAcquisitionadvise on and regulatory clients.infrastructure The issues finance;successful for both Regulation candidatedomestic & Compliance; andwill have Enforcement. The defendingdealingRole: Our withClient, catastrophic all a aspectsprogressive injuryof Dublin personal cases, based injuryfraudulent law firm, litigation are claims seeking including and to recruit experienceinternational in clients.consumer The regulation, successful regulatory candidate authorisationwill have an experienceddiseasedefending cases. Commercial catastrophic Property/Real injury cases, Estate fraudulentSolicitor to join claims its Commercial and applications,Corporateexperience – in Commercialloan consumer portfolio regulation, Lawyer sales and – regulatoryAssistant debt capital toauthorisation Associatemarkets. – Propertydisease Department cases. to assist both public and private sector Clients. J00307applications, loan portfolio sales and debt capital markets. The Projects/ConstructionRequirements: You will be –a Partnerqualified Solicitor with commercial property CompanyThe Role: A leadingSecretary/Senior corporate and commercialManager law firm are seeking to recruit a experienceOurProjects/Construction Client dealing is awith full-service acquisitions, – Partner international disposals, due law diligence, firm seeking landlord and OurCorporateCompany client Solicitor isSecretary/Senior a privately to join their owned long Managerestablished company and secretarial expanding Corporateand Team. tenanttoOur recruitand Client asset a ismanagement.Projects/Construction a full-service international Partner law to firmassist seeking in the trustTheOur Requirements: clientcompany is a privately basedThe successful in ownedthe IFSCcandidate company with will a bestrong secretarial an ambitious Irish andclient Solicitor based expansionto recruit a of Projects/Construction its Dublin office. You Partner will possess to assist strong in the baseintrust Dublin andcompany or extensivebe a solicitor based experience relocating in the IFSC from in dealing withanother a strong commondirectly Irish lawwith jurisdictionclient with Taxtechnicalexpansion Lawyer/Tax drafting of Consultantits Dublin skills andoffice. – 2the yrs+ abilityYou pqe will to – possessdeliverJ00359 astrong well- the following experience and attributes; Experience in corporate transactions; The Role: This Top 6 Dublin law firm is seeking to recruit a Tax Lawyer/Consultant overseasbase and clients.extensive Reporting experience directly in dealing to the MDdirectly and withmanaging focusedtechnical client drafting service, skills giving and the clear, ability timely to deliverand practical a well- legal First-rateoverseas technical clients. skills; Reporting Proven abilitydirectly to work to the as partMD ofand a team. managing to joinfocused its expanding client Tax service, Department giving to assistclear, in timely managing and and practical advising legaltheir tax a team of two initially, this role will have long term equity clientsadvice dealing coupled with a range with ofthe both pre-requisite domestic and enthusiasminternational tax for matters. and You potentiala team of upon two initially,graduating this torole position will have of Directorlong term for equity Dublin. experienceadvice coupled in, business with the development. pre-requisite enthusiasm for and Corporatepotential upon Solicitor graduating – 5 yrs+ to positionpqe – J00445 of Director for Dublin. will haveexperience a genuine in, interest business in building development. a career specialising in tax. The Role: Our Client, a fast growing commercial law firm based in Dublin’s City The Requirements: You will be a professional with a qualification in law, CommercialCentre, are seeking Property to hire an– Associateexperienced toSolicitor Senior to joinAssociate it’s Corporate Team. accountancyTaxation or Solicitor tax looking – toAssistant work in a topto Associatetier firm bringing with you initiative OurCommercial Client is aProperty long established – Associate mid-tier to Senior practice Associate seeking OurTaxation client, Solicitor one of the – Assistant fastest growing to Associate law firms in Ireland TheOur Requirements: Client is a Thelong successful established Candidate mid-tier will be practice a 5-year+ seekingqualified Corporate and Ourenthusiasm client, onewith ofan the excellent fastest academic growing record law firms and either in Ireland hold a tax anSolicitor Associate with experience Solicitor in generalto join commercialtheir growing contract commercial work including advising qualificationhas an immediate or be working need towards for one.a Taxation Solicitor to meet propertyan Associate department. Solicitor Youto join will their have growing a proven commercial track record in clienthas an demand immediate and needa rapidly for aexpanding Taxation Solicitor client base. to meet You will Clientsproperty on; department.Joint Ventures; You Mergers will have and aAcquisitions; proven track Corporate record inFinance; client demand and a rapidly expanding client base. You will theCorporate property Governance. arena dealing with: EUbe Competition AITI qualified Solicitor with experience – Assistant of todealing Associate with tax – MB0024 matters •the Sales property and Acquisitions; arena dealing with: The forbeRole: AITIdomestic An qualifiedopportunity and internationalhaswith arisen experience in a Topcorporate 6of Dublin dealing clients. law firmwith taxfor a mattersSolicitor to •Privacy/IT• CommercialSales and Lawyer Acquisitions; Lettings; – Associate to Senior Associate – MB0018 join forit’s domesticEU Competition and andinternational Regulatory Group.Therecorporate clients. is a wide range of work •The• LandlordCommercial Role: Our and Client, Lettings; Tenant a full Issues;service business law firm, is seeking to recruit an on offer including EU, litigation and investigations competition and regulation, •experienced• PropertyLandlord Development;lawyerand Tenant to join it’sIssues; Privacy and Data Security Team dealing with market dominance, public procurement law and state aid rules. •all• Real Propertyissues Estate pertaining Development; Finance. to data protection and privacy law compliance. This is a The Requirements: You will have 2+ years pqe coupled with a strong academic complex• Real Estate and rapidly Finance. evolving area of law advising Clients on a global scale. background and excellent technical skills.

For more information on these and other vacancies, please visit our website or contact Michael Benson bcl solr. inFor strict more confidence information at: on Benson these and& Associates, other vacancies, Suite 113, please The visitCapel our Building, website orSt. contactMary’s MichaelAbbey, Dublin Benson 7. bcl solr. in strict confidence at: Benson & Associates, Suite 113, The Capel Building, St. Mary’s Abbey, Dublin 7. T +353 (0) 6703997 E [email protected] www.benasso.com T +353 (0) 6703997 E [email protected] www.benasso.com