Journal of the LSNI 11 January-March 2017

Since delivering the CPD Seminar on Charity benefit statement and find it hard to articulate THELaw for the Law Society in February 2015 and demonstrate their public benefit. On So far as the Charity Tribunal is concerned Jenny Ebbage, Partner and Head of the occasion the registration application has acted there have been a number of decisions Charities Team at Edwards & Co. Solicitors, as a catalyst for a wide-ranging governance published. Many of these have arisen from writes on some recent developments. review and also an opportunity for upskilling the institution of statutory inquiries and the Over the year it has been a fast moving boards and those who work with them. From removal of charity trustees. environment for charities in Northern Ireland Friday, 3 June 2016 an updated version of the and it is important for practitioners to keep up online charity registration application form is The Court of Appeal decision in Charity to date so as to provide accurate and timely expected to go live. This is to be a more user Commission for Northern Ireland and Bangor WRITadvice to charity clients or to better inform friendly and intuitive version of the online Provident Trust and the Attorney General for THE JOURNAL OF THE LAW SOCIETY OFthemselves NORTHERN should theyIRELAND sit on a charity board. application process, with a change to the look Northern Ireland, seems to have now settled and flow and format of the questions being the question that Bangor Provident Trust was It would be impossible to cover everything ISSUE 226 January-March 2017 asked. Hopefully this will assist charities to indeed a charity and subject to the jurisdiction in this short piece but even a cursory look at register more easily. of the Commission which had instituted a the News items on the Charity Commission statutory inquiry under s. 22 of the Act citing a for Northern Ireland’s website will identify We are keeping a watching brief on the concern in relation to governance and financial significant recent movement in regulation outcome of the recent non-domestic rates matters. The decision of the Commission to impacting on the charity sector. Take charity consultation and in particular if this affects institute the inquiry dated back to August 2012 accounting for example. The new regulations, charity shops. and the matter had been considered by the the Charities (Accounts and Reports) Charity Tribunal and subsequently appealed to Regulations (NI) 2015 came into effect on 1 Equality Guidance for charities was produced in the High Court and then to the Court of Appeal. THISJanuary 2016, ISSUE these affect charity accounting conjunction with the Equality Commission for and reporting. It is a legal requirement for Northern Ireland to help charities understand In March the Charity Commission published registered charities to report annually to equality legislation as it applies to charitable its Interim Statutory Inquiry Report into the Societythe Commission. All registered charities are bodies and where exemptions apply to Disabled Police Officers Association Northern required to complete and submit an online charities. Ireland. In early May 2016 the High Court annual monitoring return form, and their welcomes its (Chancery Division) delivered its judgment accounts and reports. The full reporting and in Attorney General for Northern Ireland and accounting regulations apply to charities Those practitioners who also practice company Robert Crawford (a trustee of the Disabled newreporting on aPresident, full financial year that begins law will be aware of the likely impact of the Police Officers Association), and the Charity on or after 1 January 2016, or those registered Small Business, Enterprise and Employment Commission, which was an application by the with the Commission on or after 1 January Act 2015 which is relevant to those charities Ian Huddleston Attorney General to appeal a decision of the 2016. Interim arrangements remain in place that are companies limited by guarantee and Charity Tribunal for Northern Ireland on various for charities registered before 1 January 2016. to trading subsidiaries. Also be aware from points of law. The Attorney General was using Charities that are companies must comply with 30 June 2016 that confirmation statements his powers under s. 14 of the Charities Act the Companies Acts as well. The reporting (which replace annual returns) to Companies (NI) 2008. The Attorney General sought to obligations are primarily determined according House must contain “beneficial ownership” appeal the decision of the Charity Tribunal to to the level of income of the charity. The details, this follows from the launch of the remove Mr Crawford as trustee of the charity. trustees annual report will be of interest as Person with Significant Control (PSC) Register, The Attorney General was not involved in the trustees have to report on how the charity which requires certain organisations including the hearing before the Charity Tribunal, but meets the public benefit requirement. The full companies to report on the people who own intervened to appeal the decision of the annual monitoring return also requires charity or control their business. Tribunal. Mr Justice Horner concluded that the trustees to identify if any serious incident appeal raised various issues which may be of reports need to be made. It is hoped that The “Monitoring and compliance guidance – general importance in other appeals the guidance issued by the Commission on Getting it right” issued by the Commission, accounting and reporting will follow soon. In helps charity trustees and their solicitors by addition, the adoption of the new SORP, makes providing a summary of some of the relevant it essential for new charities to ensure that legislation and a checklist to help charities to their accounts are in the right format. comply with their legal obligations. This can be read in conjunction with the Running your Although not all charities are registered, Charity guidance. Of particular interest are and this process is likely to take a couple of the sections on how the Charity Commission years to complete, more than 4300 charities monitors and identifies non-compliance and appear on the register. The registration of what consequences arise for charity trustees charities looks like a simple enough process when non-compliance is identified. at the outset; however, this has proved to be a challenge on occasions particularly when In Edwards & Co. we have advised clients Mediationthe charitable purposes Matters do not neatly fit whereFamily a concern Provision has been raised and the New Law Society website Developmentswithin any of the twelve in mediation charitable purposes CommissionComparing has imposed and contrasting self-regulatory or A quick guide on the registration application. 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3328TLV_Swift_Solutions_Advert_V2_080816_PRINT.indd 1 08/08/2016 12:40 Journal of the LSNI 3 January-March 2017

PUBLISHERS The Law Society of Northern Ireland Law Society House 96 Victoria Street BELFAST BT1 3GN Tel: 028 9023 1614 Fax: 028 9023 2606 E-mail: [email protected] Website: www.lawsoc-ni.org

EDITOR Alan Hunter [email protected]

BUSINESS EDITOR Peter O’Brien [email protected] Contents DEPUTY EDITORS Heather Semple [email protected] Paul O’Connor [email protected] 04 Cover Story:

ADVERTISING MANAGER Society welcomes its new President, Karen Irwin [email protected] Ian Huddleston DESIGN SHO Communications Consultants 5 Mediation matters DISCLAIMER The Law Society of Northern Ireland and its agents 14 Damages for asbestos related conditions accept no responsibility for the accuracy of contributed articles or statements appearing in this magazine and any view or opinions expressed are not necessarily 16 Code of Practice (Tribunals) those of the Law Society’s Council, save where otherwise indicated. No responsibility for loss or 22 Law Society Annual Dinner distress occasioned to any person acting or refraining from acting as a result of the material in this publication 40 Obituary – Michael Davey, former Secretary to the can be accepted by the authors, contributors, editor or publisher. The editor reserves the right to make Law Society publishing decisions on any advertisement, loose insertion or editorial article submitted to this magazine 51 Abstracts from the Courts and to refuse publication or to edit any advertisement, loose insertion or editorial material as seems 52 Library update – Forum Shopping/COMI Shifting in appropriate to the editor. The Law Society of Northern Ireland and its agents do not endorse any goods or Insolvency Proceedings services advertised including those contained in loose insertions, nor any claims or representations made in any advertisement/loose insertions in this magazine. Are you contact details correct? No part of this publication may be reproduced without Members are reminded that under the Solicitors’ Practice Regulations 1987 (Regulation 23 (c) - (e)) the written permission of the copyholder and publisher, you are obliged to inform the Society if there are any changes in your employment status or contact application for which should be made to the publisher. details. If your employment status or contact details have changed please email: [email protected] www.lawsoc-ni.org providing the required information as soon as possible

Copy deadline Writ readers can access back issues of You can also find details on the website about: • Libero database for April/May 2017 Edition: the magazine as far back as October / December 2000 at www.lawsoc-ni.org - • Latest CPD courses • Employment opportunities Monday 10 April 2017 follow Publications link • Forthcoming events 4 Journal of the LSNI January-March 2017

“It is a privilege and an honour to take up the owners on the structuring of their assets and presidency of the Law Society of Northern the use of corporates, trusts and partnerships Ireland. as part of that and to deal with succession issues. “During my Presidency I will seek to promote the solicitor profession and the important He is also actively involved in the area of role it plays in the economy and significant charity law and philanthropy. contribution it makes to the community in Northern Ireland. He has been named in Chambers UK Guide to the Legal Profession for a number of years “I will work to ensure that the Law Society as a “leader in the field” for both for his real remains at the forefront of justice issues in estate and private client practice where he is Northern Ireland working on behalf of our described as “a pragmatic lawyer who is great members and in the public interest.” at keeping on top of loose ends and getting a deal across the finishing line”. Mr Huddleston is originally from Downpatrick and studied Law at Queen’s University Belfast Ian has an interest in legal education and before undertaking a Master’s Degree in is the outgoing chair of the Law Society’s Commercial Law at Bristol University. Education Committee although he remains a member and also sits on the Council of Legal After completing his apprenticeship with Education. Murlands Solicitors in Downpatrick he was The Law admitted to the Roll of Solicitors in Northern He is a member of the Global Council of the Ireland in 1991 and subsequently to the Roll of Society of Trust and Estate Practitioners and a Society of Solicitors in England and Wales in 2010. Committee Member of the Northern Ireland Branch. Following his apprenticeship Ian began He is a board member of a number of large Northern working for L ‘Estrange & Brett and was companies and charities and is on the Board heavily involved with the management of that of Giving NI – a body set up to encourage Ireland has firm prior to its mergers. philanthropy in Northern Ireland.

Ian advises in relation to all aspects of real Ian became President of the Law Society of welcomed estate law but with a particular emphasis Northern Ireland on Wednesday 30 November on complex development work and the 2016. Mr Ian development of strategic property solutions for both public and private sector clients. His chosen charity of the year is Marie Curie.

Huddleston He has advised on a number of major large regeneration initiatives and developments The new Presidential Team: Ian Huddleston, as its new throughout Northern Ireland. President; Eileen Ewing, Junior Vice President; John Guerin, Senior Vice President and Alan President. Ian also advises private clients and business Hunter, Chief Executive. Journal of the LSNI 5 January-March 2017

The Gillen Review only present adversarial communication and pleadings but will in fact be expected Many colleagues will know of the Gillen to advise their clients of the availability of Review of Civil Justice. It is recommended mediation. One can predict with certainty that that everyone practising litigation should many clients will take up that opportunity. This read in particular chapter 9 of the Gillen Draft will mean that lawyers will have to become Review in which a reflection of the position more accustomed to assisting clients within of mediation in the civil justice system is the mediation process and of course for lawyer undertaken. It seems to me quite clear mediators it is likely to give rise to a greater that Lord Justice Gillen expects mediation demand for their services. to continue to play a significant role in civil justice. There is to be every encouragement The EU Mediation Directives given as a matter of court practice and procedure that mediation and attempts at If our immediate neighbour in the Republic resolution of cases should be attempted. It of Ireland is influential then there is further seems likely that the courts and the judiciary and significant influence from Europe. Many will make enquiries from all participants in will be aware of the European Mediation litigation before the courts whether or not Directive2 which requires all member states they have addressed their obligation to seek to make information about mediation to resolve matters. known to its citizens and also requires member state governments to make court The position in Ireland rules susceptible to the involvement of mediation. While stopping short of making Mediation This obligation to consider resolution is going mediation mandatory prior to accessing courts, to be enhanced in my opinion by the likely nonetheless the Mediation Directive has matters passing of the Mediation Act1 in the Republic created a climate where increased reference of Ireland. This piece of legislation has been to mediation and increased numbers of prepared in draft ready for enactment for mediations have taken place. In this article Brian H Speers Solicitor, some time. Recent indications suggest that Mediator and Chair DRS comments on it will be enacted soon and it is a most The EU Consumer Mediation Directive developments in mediation. comprehensive and influential piece of legislation. Of particular significance to all law firms is the Introduction coming into force of the European Consumer Among the matters it will enact is an Mediation Directive.3 This Directive requires There have been significant developments in obligation on all solicitors and barristers to all those providing goods or services to the world of mediation in recent times and advise clients of the availability of an option consumers to offer consumers in the case of a this short article identifies some of these to mediate cases. If the lawyers do not advise dispute the option of mediating. Similarly, all developments. Solicitors should consider it seems likely that they will have breached providers of goods and services to consumers undertaking training in mediation given their legal obligation giving rise of course to must make it known to the consumers when the prominence that the role of resolving potential liability. a dispute arises that they have selected a disputes is going to take if the current trends mediation provider which may, if they and the and direction of travel have been correctly This should bring about a change of attitude consumer agree, be used to assist to resolve identified. in dispute practitioners as they will no longer the dispute. 6 Journal of the LSNI January-March 2017

This EU Consumer Directive applies as equally The EU Directive does not compel either the The pool of talent now available within the to law firms and architects as it does to car customer or the service or goods provider membership of the DRS provides a cohort of salesmen and electrical white goods suppliers to use mediation but where both parties legally trained Mediators who can be selected which might more readily be understood to agree then the DRS has terms and conditions to assist parties who have a dispute. involve the provision of goods and services to available to the consumer to enable a dispute consumers. to be addressed by mediation free of charge to DRS mediation the consumer. Accordingly law firms must include in their The type of mediation that DRS Mediators Terms of Engagement letter to clients an offer is entirely compliant with accepted indication of who that firm would select as an definitions of mediation, both in accordance ADR provider. with the original EU Mediation Directive and in accordance with the EU Consumer Mediation The ADR provider must be accredited by the The DRS Directive. It similarly complies with the Code of Chartered Trading Standards Institute. Until Conduct for European Mediators and the DRS’ very recently there was no ADR provider The DRS has made considerable progress in own Code of Conduct. These require a form accredited in Northern Ireland. However the other respects. The IPLS mediation training of mediation which might be described as Dispute Resolution Service (DRS) which is a course, recognised by the DRS as amounting to ‘broadly facilitative’. mediation service whose members comprise approved training, was once again delivered mediation trained barristers and solicitors in the autumn of 2016 and the photograph This means that the Mediator will engage with has recently been accredited in full by the on page 8 shows the class of 2016 at its final the parties to the dispute through listening Chartered Trading Standards Institute. The DRS session. It is notable that among those who attentively, will gain an understanding of the is now the only accredited mediation provider have recently undergone training are a variety interests of the parties and may then explore for consumer disputes in Northern Ireland. All of solicitors working in-house, in private options for resolutions and discuss options law firms should therefore consider including practice and in government service. In addition where authorised with the other party. within their Terms of Business reference to senior and junior counsel have undertaken Many colleagues will have experienced the DRS as the ADR provider of choice should the training as have some members of the something called mediation but which does clients have disputes. judiciary who have recently retired. not really reflect the broadly facilitative Journal of the LSNI 7 January-March 2017

approach that mediation is expected to had been in Halsey, simply an ignoring of treatment or lack of aftercare and once again deliver. Mediation is not about lawyers the suggestion. In the PGF case this proved these have proved extremely fertile ground for meeting to enable the lawyers to resolve extremely damaging for the party who had imaginative solutions based around listening matters between them and then announce ignored an invitation to mediate and who was attentively to the interests and concerns of the the position to their clients. Mediation is client ordered to pay costs on the basis that ignoring complaining party and addressing those in an centred, client involved and the Mediator acts a request to mediate was tantamount to an empathetic manner. as a facilitator of a dispute. This of course unreasonable refusal. does not mean that the Mediator cannot be New mediation possibilities forthright, robust and strong in challenging Mediator clauses any stubbornness, encouraging the parties The devolution of planning powers to local to be flexible in their position or to justify It is worth considering that mediation arises councils has also brought with it the need for their position but it is far cry from either from a contractual agreement to mediate. I community consultation for planning schemes telling clients what to do or simply refereeing suggest that a mediation clause in a contract above a certain threshold. Public consultation between counsel who may have been should be fairly straightforward – perhaps ‘in meetings can often be fractious and difficult retained. the event of any dispute arising concerning to manage and a good lawyer Mediator could the terms of this agreement, the parties agree prove to be a very successful and useful Chair DRS documents to mediate the dispute in accordance with the for such meetings. Negotiating a joint venture terms in force from time to time of the Dispute agreement involving a number of parties Readers of this article are encouraged to go Resolution Service administered by the Law will require mediative qualities to listen to the DRS website www.mediatorsni.com and Society of Northern Ireland.’ the needs and requirements of each of the review the standard form of agreement, protagonists but to give confidence that you the fee structure, the Code of Conduct and However a less precise clause was used in are achieving an agreement which best reflects consider the profiles of DRS members. the case of Emirates Trading Agency LLC v the agreement requirements of the parties. Prime Mineral Exports Private Limited.6 In Anyone wishing to become a member of this case the clause agreed between the Conclusions the DRS should note the application form parties to a contract was that the parties ‘shall and should further note that training of an first seek to resolve the dispute or claim by In conclusion it seems to me that lawyers approved nature must be undertaken. Details friendly discussions’. Many might think that whether solicitors or barristers, although this of the next Institute of Professional Legal this clause would be unenforceable simply on is primarily addressed to solicitors, will need Studies mediation course are on page 8. the basis that it was nothing more than an to know what mediation is, will need to have agreement to agree which were traditionally the skills to assist clients who are participating Cases not recognised by the English Courts. However in a mediation and may also wish to become the Judge in the Emirates Trading case trained in mediation and offer their services as There have been a number of interesting decided that he was not bound by previous Mediators. cases in the past couple of years. Of perhaps cases and that this clause was enforceable the most significance is the case of PGF v as it was consistent with the public policy All the signs suggest whether decided cases OMFS.4 This case was taken to the Court of ‘of encouraging parties to resolve disputes within the United Kingdom, the legislation Appeal in England and Wales and gave an without the need for expensive arbitration in the Republic of Ireland, the EU position opportunity for a detailed consideration of the or litigation’. It is suggested that this case or the approach in the common law nations state of mediation in England and Wales to be simply points with even greater clarity to the of the world, that disputes are expected to undertaken, particularly in light of the seminal direction of travel for civil disputes. Put bluntly be handed in a less adversarial way, with a Halsey case5 (Halsey v Milton Keynes National it is that all practitioners need to be aware more consensus based approach and resolved Health Trust). of the expectation that they should resolve outside of court. cases, that they should respond to invitations Some colleagues will recall that Lord Dyson to meet; they should make a proposal for Clients and lawyers can all find the law through contributed a paper to a conference entitled mediation and that the mediation process internet searches or through sophisticated Mediation Across the Commonwealth in June should be one in which they are skilled. subscription sites. What technology however 2014 to coincide with the 10th anniversary cannot replicate is the need to persuade, to of the original judgment in the Halsey Types of cases suitable for mediation influence and to succeed in the presentation of case. This conference, organised jointly your case. These skills are what the solicitors between the Law Society, the DRS and the Mediation has in my experience been used require. Those skills are often met by a Commonwealth Lawyers’ Association, received in a wide range of cases and more often mediative approach learned through training. Lord Dyson’s paper in which he emphasised than not very successfully. Inheritance cases We have come far but yet have much further that the voluntary nature of mediation still and cases involving partnerships or minority to go. remained and the court should not compel shareholders or disputes within Boards of it. However the court should continue to Directors are all ideal for mediation. Cases 1 Mediation Bill 2012. robustly encourage mediation. What the PGF involving allegations of breach of contract 2 2008/52/EC case addressed was a party who ignored and claims for compensation or damages 3 2013/11/EU 4 the suggestion made by the other party again lend themselves well to mediation. I PGF II SA v OMFS Company [2012] EWHC 83 (TCC) 5 Halsey v Milton Keynes General NHS Trust [2004] EWCA that mediation should be undertaken. There have mediated cases involving difficulties 3006 Civ 576 was no actual refusal to mediate as there arising from hospital treatment or lack of 6 [2014] EWHC 104 8 Journal of the LSNI January-March 2017

New mediators - the class of 2016

Pictured with trainers Brian Speers, Alva Brangam QC and David Gaston are lawyers who completed the Mediation Training Course at the Institute of Professional Legal Studies in October 2016.

and group study over an 8 week period. The Attendance at the course will allow an course includes assessment feedback to all application to be made for inclusion on the participants. This is the longest established Law Society Dispute Resolution Service (DRS) lawyer’s mediation training course in Northern mediator’s panel. Participation and completion Ireland. of the course is accepted as approved training for purposes of the DRS and the Bar Mediation The course will run for 8 evenings each panels. Institute of Professional Wednesday from early September until end Legal Studies October at IPLS Lennoxvale, Belfast. There will The nature of the course means that the also be an all day Saturday programme on maximum numbers attending is restricted Mediation Course – 21st October. and anyone interested is asked to apply immediately. The course is open to solicitors Register interest The course is delivered by experienced local and barristers with 5 years post qualification practitioners:- experience and to members of the Judiciary. The Institute of Professional Legal Studies The cost will be £1,950.00 per person. (IPLS) at Queen’s University invites • Brian Speers, Solicitor, Mediator This compares extremely favourably with registrations from solicitors, barristers and mediation training course fees offered by members of the Judiciary wishing to attend a • David Gaston, Solicitor, Mediator other providers. Mediation Training Course in Autumn 2017. • Alva Brangam QC Mediator If you wish to take up a place please contact The IPLS mediation course offers training in Fionnuala McCullagh-O’Kane of Institute of civil and commercial mediation and comprises Additional local legal practitioner mediators Professional Legal Studies, 10 Lennoxvale, 40+ hours including training, private study, (solicitors and barristers and Judges) support Belfast, BT9 5BY. Tel. No. 028 9097 6521 or lectures, practical exercises, reflective learning the formal lectures and tutorial input. [email protected] First Choice for Medico-Legal MRI

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Family Provision: comparing and contrasting Northern Ireland with England and Wales

example, the Northern Ireland equivalent to Applications under the 1979 Order must the Law Reform (Succession) Act 1995 (which be made within six months of the date on introduced the separate cohabitation category which the grant of representation is first (ba)) is the Succession (NI) Order 1996. taken out, unless the leave of the court is obtained. This is the same as the primary Recent reform in England and Wales time limit in England and Wales and the English jurisprudence on discretion to extend Unfortunately, it is now all too evident that time is often relied upon in submissions in the the Northern Ireland Assembly will not be Northern Ireland Chancery Division. So far, so responding so quickly in future. In England good, but that is not the end of the matter if and Wales there have been several significant one is dealing with joint tenancy property. changes made to the 1975 Act by the recent Inheritance and Trustees’ Powers Act 2014 Any award under the 1979 Order is ordinarily In this article Sheena Grattan, TEP, Barrister- (“the 2014 Act”) but it would appear that made out of the “net estate” of the deceased, at-law of the Bar of Northern Ireland and there are as yet no plans to amend the 1979 a concept that is defined by article 2(2). of the King’s Inns, Dublin compares and Order accordingly. One hopes that Northern However, article 11 gives the court power to contrasts family provision legislation in Ireland trusts and estates law is not in for a widen the estate artificially by including the Northern Ireland and England & Wales. long period of stagnation, now that it is back deceased’s notional share in joint tenancy on the law reform agenda elsewhere in the property, thereby effectively clawing back General assimilation between the United Kingdom and has already been under all or part of the deceased’s notional “share” jurisdictions the microscope of the Law Reform Commission in joint tenancy property into the net estate in the Republic of Ireland. in order to fund an award. Significantly, Northern Ireland followed England and Wales however, there is no power to extend the in opting for a discretionary system of family The main changes introduced by the 2014 Act primary time limit. A similar power to utilise protection, in contrast to the fixed elective in respect of the family provision jurisdiction a deceased’s “share” of joint property is share system that protects spouses in the (other equally important amendments made given to the Court by section 9 of the 1975 Republic of Ireland. The governing legislation by the legislation relate to the intestacy rules Act. However, there is a very significant in this jurisdiction remains the Inheritance and certain statutory powers of trustees difference in the Northern Ireland legislation. (Provision for Family and Dependants) (NI) including maintenance and advancement) In England the sole time limit is the usual six Order 1979 (“the 1979 Order”), which is, for include a change in the definition of a child of months from the grant of representation. In the most part, identical to the Inheritance the family (category (d) applicants); a change Northern Ireland, by contrast, the time limit (Provision for Family and Dependants) in the definition of a person being maintained is EITHER the standard six months from the Act 1975 (“the 1975 Act”). Indeed, the by the deceased (category (e) applicants) grant of representation OR 18 months from overwhelming desire for parity with our larger and express clarification that the hypothetical death, whichever is sooner. An applicant can neighbouring jurisdiction clearly influenced the divorce yardstick is neither the upper nor therefore be statute-barred from effectively work of the Committee on Family Provision lower limit with surviving spouse applicants. making a claim (eg if the only wealth released in the 1950s. In the report that preceded the by death was held on joint tenancy) before enactment of the seminal Inheritance (Family It hardly needs stating that Northern Ireland the grant of representation has even been Provision) Act (NI) 1960, it observed that: practitioners will now have to be alert to the extracted. fact that the law is different in a number of “…owing to the size of the community potentially significant respects when referring It is therefore imperative that Northern Ireland in Northern Ireland there are never likely to English reference material on the family practitioners are alert to the possible existence to be any Northern Ireland textbooks provision jurisdiction. of joint tenancy property from the outset and on the subject and very few reported do not overlook this alternative time limit. cases…so [we] recommend that if A longstanding difference – time limits and legislation is introduced…it should follow joint tenancy property the Inheritance (Family Provision) Act NOTE: A longer article by Sheena Grattan on 1938…” (Report of the Family Provision Of course, the 1979 Order has never been a various time issues arising out of the family Committee, Cmd (NI) 330 (1953) at para precise mirror image of its English equivalent. provision jurisdiction was published in Issue 37) In particular, there has always been one 2/2014 of Folio (Law Society of Northern very significant difference between the Ireland, 2014). To obtain back copies of Folio Prior to devolution, the piecemeal statutory two statutes that can present a very large or to subscribe to the journal please contact amendments that were made to the 1975 elephant trap for the unwary Northern Ireland Deborah McBride at the Law Society Library Act duly followed in Northern Ireland. For practitioner. ([email protected]). HAYS LEGAL MAKE YOUR CASE BANKING SOLICITOR Belfast - £25,000. Ref. 2957787 One of Northern Ireland’s leading law firms is conducting a search for an NQ+ Solicitor to join their team based in Belfast. You will join the banking & finance team who enjoy an excellent ranking in Chambers and boast an enviable list of clients. Your new position comes complete with a strong emphasis on employee engagement & development. If you are seeking a career rather than a job, this role and business are for you. IN HOUSE LEGAL COUNSEL Belfast - £40,000 - £55,000. 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in the Northern Ireland market following the is certainly less of an appetite to undertake referendum result. any large purchases or developments. A prominent example of this was when the In response, a base rate cut by the Bank of Belfast Telegraph reported that the sale of England had been predicted in order to tackle the Sirocco site in east Belfast, due to be what The Guardian called the “Brexit crisis”. developed in a £300m project, was under In the event the Bank decided to keep to the threat due to Brexit uncertainty. In addition, current rate of 0.5%, only to cut it to 0.25% a it was also confirmed that one developer had couple of months later. shelved plans to build a large office building in Belfast city centre. As shares in housebuilders and banks were falling amidst this “crisis”, the Bank’s Whilst it is true that the drop in the value of Governor, Mark Carney, commented that the pound has made the domestic property “some monetary policy easing will likely market more attractive to foreign investors, Post- be required over the summer”. This remark the current nervousness surrounding asset of course came after the Bank had already values is likely to continue at least for the Brexit relaxed banking sector rules to free up lending short term. It is also likely that transaction to households and businesses. volumes will be affected.

property In addition to these actions the Bank is also In a post-Brexit market, title insurance monitoring a number of sectors, including the will play a vital role in bolstering the buy-to-let lending and commercial property attractiveness of assets. When assets are dilemmas markets. sold, this protection mitigates risks and ensures otherwise uncertain transactions are By Chris Taylor, The latter has seen a number of major funds completed in a timely and efficient manner. Chief Executive Officer, take steps to stop nervous investors from Wherever warranties are required but not Titlesolv withdrawing their investments; a move that obtained on portfolio sales, tailored insurance could force funds to sell off properties at a solutions provide a purchaser with confidence loss. Reports in The Times suggested that up and reassurance. Similarly, any foreign The post-Brexit property market to £5 billion worth of property assets in the UK investors holding off on buying in the UK will would need to be sold to satisfy the potential be comforted by the absolute guarantee that in Northern Ireland is proving to flood of redemption requests by investors. title insurance provides. be fairly unpredictable, with all Property funds worth up to £18 billion stopped trading after the Brexit referendum result. involved taking precautionary These included Standard Life, Aviva and L&G; steps to guard themselves the majority doing so for 28 days. Titlesolv is the trading name of London against any potential longer- & European Title Insurance Services Ltd Investor concerns about the long-term forecast authorised and regulated by the Financial term fallout. for property are understandable and there Conduct Authority.

Following a reasonably steady recovery in the wake of the recent recessionary climate, the housing market had shown signs of slowing in the months leading up to the referendum as uncertainty impacted the market. The result certainly did not improve its fortunes. Perhaps unsurprisingly in the aftermath of the referendum result, the FT reported that UK homebuyers were now “assessing the potential impact of the vote on house prices”.

As a result of the referendum, some mortgage brokers and estate agents noted that a small proportion of Northern Ireland buyers were pulling out of transactions due to concerns over negative equity, with commentators also predicting a house price readjustment. Although Northern Ireland avoided the worst of the post-Brexit slowdown, these perceptions were confirmed by a survey conducted by RICS, which reported “clearly dampened sentiment” Journal of the LSNI 13 January-March 2017

Attention all conveyancing practitioners

The Housing Executive wishes to remind all 3. Flats and maisonettes – if the Requirements Solicitors who act in conveyancing transactions property being sold or disposed of is on behalf of either vendors or purchasers of a flat or maisonette there is always In acting on behalf of a leaseholder, under former Housing Executive properties of the an obligation for leaseholders to a Housing Executive Flat Lease, or on behalf following matters affecting such transactions: notify the Housing Executive of any of a householder of a former NIHE property such transfer or change in ownership. selling or disposing within 10 years of the 1. Repayment of discount - a subsequent This is necessary in order to maintain original purchase, please provide the following sale or disposal of any house or flat proper and effective management information to the office listed below: within five years of purchase from the of such properties and ensure that Housing Executive normally requires service charges and other charges are 1. Date of sale or transfer of property repayment of discount and removal properly accounted for and applied to 2. Name(s) of new owners and of the charge affecting the property the correct owner or former owner in correspondence address (if applicable ) except where that disposal is exempt any subsequent change of ownership 3. Forwarding address of vendor/ under the terms of the relevant house and constitutes good conveyancing transferor sale deed. practice. In particular, Covenant 9 of 4. Remittance for the required £10 fee Schedule 3A of the Northern Ireland (where applicable) made payable to 2. Option to purchase - a subsequent Housing Executive Flat Lease imposes NIHE sale or disposal of any house or flat a requirement on a leaseholder to within ten years of purchase from the notify the Housing Executive in writing Housing Executive always requires prior within one month of any transfer of a The Leasehold Unit notification to the Housing Executive Lease or other instrument evidencing a Northern Ireland Housing Executive by the then owner of the proposed devolution of title (including Probate or 2nd Floor disposal so that the Option to purchase Letters of Administration) and requires 2 Adelaide Street can be considered and cancellation of payment of a £10 administration fee Belfast BT2 8PB the charge affecting the property. when doing so.

A gift in a Will to Northern Ireland Chest Heart & Stroke is a legacy of hope and care for generations to come

In Northern Ireland affected by The smallest To see how our almost half of all devastating health investment can Medical Research adult deaths are conditions every day. lead to the biggest Programme has caused by chest, A gift to NICHS in a breakthrough. already supported heart and client’s Will could For advice on groundbreaking stroke illnesses. be invested in critical leaving a legacy to projects, please visit NICHS are working local research that NICHS and more our website to change this will help change the information on our www.nichs.org.uk through funding future for families life-saving work, research and caring at risk from our please contact us on for those who are biggest killers. 028 9032 0184.

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NICHS_legal AD_The Writ_v3.indd 1 20/04/2016 21:45 14 Journal of the LSNI January-March 2017

Damages for Asbestos-related conditions Carol McCauley as personal representative of the Estate of William McCauley (deceased) v Harland and Wolff PLC and Royal Mail Group Limited [2015] NICA 28

not entitled to damages for personal injury. these conditions.’ Nor were they entitled to damages for the stress and anxiety arising from the diagnosis, Thus, the appropriate value to be attributed since the success of such a claim depends on to a claim for damages for asymptomatic the existence of physical harm or recognised pleural plaques and the means of quantifying illness. this was a matter that was left for judicial determination; it is this question that arose The decision in Rothwell was a controversial for consideration by the Court of Appeal in one, and, as was noted in McCauley, its effect McCauley as personal representative of the In this article Louise Maguire BL considers was to deprive a large number of individuals estate of William McCauley (deceased) v the measure of damages available to a of compensation. However, in 2011 the Harland & Wolff PLC and Royal Mail Group plaintiff who has sustained asymptomatic Northern Ireland Assembly legislated to Limited. pleural plaques as a result of exposure reverse the decision. It did this by recognising to asbestos. Louise is a junior barrister pleural plaques as a personal injury at McCauley: facts practising in civil litigation, with a particular section 1 of the Damages (Asbestos-related interest in personal injury law. Conditions) Act (Northern Ireland) 2011. The plaintiff in this case was the widow of Section 1 is as follows: Mr McCauley. Mr McCauley had worked for Harland and Wolff PLC from 1955-1961 and Introduction ‘ 1 —(1) Asbestos-related pleural plaques for Royal Mail Group Limited from 1964-1980, are a personal injury which constitutes during which time it was accepted by both This is the first case, since the coming into actionable damage for the purposes of an defendants that he was exposed to asbestos. operation of the Damages (Asbestos-related action for damages for personal injuries. As a result of this exposure, Mr McCauley Conditions) Act (Northern Ireland) 2011, in …’ developed pleural plaques. These first which a court in Northern Ireland has had to appeared on a chest x-ray on 2 September consider the proper measure of damages to be This creates a statutory cause of action in 1991, although Mr McCauley was only awarded in circumstances where a person has circumstances where a plaintiff sustains informed of the diagnosis some twenty years developed asymptomatic pleural plaques as a asymptomatic pleural plaques as a result of later on 10 February 2012. His death, in 2013, result of tortious exposure to asbestos. tortious exposure to asbestos. Consequently was unrelated to asbestos exposure. damages are now recoverable for both the Pleural plaques are areas of fibrous thickening pleural plaques as a physical injury and also Mr McCauley suffered no symptoms or of the membrane surrounding the lungs any stress and anxiety caused to the plaintiff functional impairment, however once caused by the inhalation of asbestos fibres. by reason of the diagnosis. diagnosed with pleural plaques he was In the majority of cases a person with pleural caused some anxiety and stress (albeit not plaques does not experience any symptoms or However the question is, what is the scope an identified psychiatric condition). This is functional impairment; nor does their presence of damages that can be recovered? And because the existence of pleural plaques in increase the risk of developing any other how are they to be assessed? The Act itself the lungs demonstrates that a person has asbestos-related condition or alter a person’s says nothing about the quantification of inhaled asbestos fibres and their presence is life expectancy. damages and the current edition of the Green therefore an indicator that that person is at Book (2013) is silent on the matter; the risk of developing asbestosis or mesothelioma. The absence of symptoms and risk led only reference to pleural plaques is to those In Mr McCauley’s case the fear of developing a the House of Lords, in Johnston v NEI accompanied with functional impairment. life threatening asbestos-related disease was International Combustion Ltd; Rothwell This absence of guidance is intentional, as the compounded by two further matters; firstly, his v Chemical and Insulating Co Ltd [2007] introductory foreword reveals: wife suffered from asthma and Mr McCauley UKHL 39, to unanimously hold that pleural did not like what he saw of the effect that this plaques do not cause any appreciable harm ‘Pending any judicial determination of the condition had on her. Secondly, he also knew or damage and therefore do not give rise to correct level of damages in relation to such one man, and knew of others, who had died a claim in tort. Thus the plaintiffs, who had claims, consequent upon the passing of the from asbestos-related conditions. sustained pleural plaques unaccompanied by 2011 Act the Committee concluded that it functional impairment, could not establish would be premature to purport to set out the Thus in McCauley the issue for the court was any compensatable harm and were therefore appropriate levels of awards in relation to to assess and quantify the damages to be Journal of the LSNI 15 January-March 2017

awarded in respect of the pleural plaques as a noted specifically that at one end of the scale, The court held that (in the absence of physical injury and also in relation to the stress trivial scarring can attract an award in the evidence of a grave psychiatric illness) it was and anxiety caused to the deceased as a result order of £1,000 and upwards. Whereas, at unlikely that a plaintiff would recover outside of the diagnosis. the other, mild respiratory conditions causing the bracket of £5,000-£15,000, regardless of discomfort may attract upwards of £7,500. how long the stress or anxiety persisted. The Appeal Damages for smoke inhalation (again causing some discomfort) fall somewhere in between, The determination of where each case lies At first instance, the plaintiff was awarded generating awards of £5,000 and upwards within that bracket should be considered in (as personal representative of the deceased) depending on the effect on the lungs. light of its own particular facts. In McCauley £10,000 in damages, with the trial judge it was accepted that the deceased did suffer reverting to the pre-Rothwell case law and In light of this analysis the court reached from anxiety as a result of the diagnosis - an guidelines on quantum for guidance (allowing the conclusion that, when considered alone, understandable reaction in the circumstances. for some increase in the range by reference to asymptomatic pleural plaques would attract However the period of anxiety was short and changes in the retail price index). ‘an award in the region of £3,000.’ therefore taken into account.

The first defendant appealed the decision on Despite being ‘in the region’ of £3,000, this At first instance the plaintiff was awarded the ground that this was not a proper basis figure appears to be static for a number of £10,000. When one applies the formula upon which to assess general damages. reasons. Firstly, the court identified a single laid down by the court on appeal, and in Firstly, because the effect of the 2011 Act was figure, rather than a range of figures. Secondly, accordance with the above analysis, the simply to allow the plaintiff to surmount the the court did not provide any guidance or award can be broken down into its separate hurdle of the de minimis principle; secondly, outline factors to consider when determining components; £3,000 for physical injury and the because pre-Rothwell case law and the Green the appropriate figure in any given case, remainder - £7,000 – for distress and anxiety. Books are based on the erroneous proposition therefore suggesting that this is the that pleural plaques are an injury to health appropriate figure in every given case. Finally, However, such an assessment of the damages and a significant bodily injury; and thirdly, in its evaluation of damages for distress and recovered in this case is somewhat artificial because any assessment of damages should anxiety the court has provided both a range for a number of reasons. Firstly, the figure of take account of the judicial reasoning in and specific guidance. Thus, it appears to be a £10,000 was not generated by the application Rothwell. case of one size fits all and therefore it may be of this formula, but rather upon an application difficult to persuade a court to depart from this of pre-Rothwell guidelines and case law. Held figure in the future. Secondly, it was noted by the Court of Appeal to be at the ‘top range of permissible awards’. The Court of Appeal rejected the appeal, Thus, at £3,000, the amount of damages The particular factual circumstances of this holding at paragraph 28, that although the recoverable for the pleural plaques as a case, in terms of the extent and duration of award of £10,000 was ‘at the top of the physical injury is quite modest and, as Gillen LJ anxiety suffered, should therefore not be range of permissible awards’ it was ‘not so observed, ‘cannot be described as significant taken as indicating those which will always far outside the permissible range’ that the on its own’. However, at paragraph 24 the give rise to an award of this value. The case court should intervene. However, unlike the court noted that its significance and therefore should therefore be treated with caution in decision at first instance, the court did not rely the quantity of damages recoverable for this regard. on pre-Rothwell case law and guidelines as a pleural plaques is heavily influenced by the means of assessing the value of the plaintiff’s extent of the anxiety and distress engendered claim. Conclusion by the diagnosis.

Instead, the court adopted a new approach. In summation, the court outlined that Gillen LJ outlined at paragraph 24 that the Damages for Distress and Anxiety damages for physical injury are valued at starting point in any assessment should be a £3,000. Damages for distress and anxiety are valuation of the physical injury that comprises The extent to which it is influenced will to be assessed separately and range from the compensatable harm – in this case the depend upon both the degree of anxiety £5,000 - £15,000, depending on the extent pleural plaques. Damages for any distress and and distress and also the period of time over and duration of suffering. Both components anxiety caused by the diagnosis should then which it was suffered. For instance, Gillen LJ are then added together to determine the be added to this valuation in order to arrive at observed at paragraph 24 that ‘in the case of a total award recoverable. a total figure for recoverable damages. Thus deceased person who was never aware of the the two elements can and should be assessed condition and who thus suffered no distress Thus the decision in McCauley is a welcome separately. on that count the award must be a very development in the jurisprudence surrounding modest one.’ He also observed that it would pleural plaques. Where the body of pre- Physical injury not be unusual for a person, upon receipt of Rothwell case law and guidance comprised a diagnosis of pleural plaques, to be caused two conflicting schools of thought, the decision In order to determine a proportionate some initial distress and anxiety; at this early brings some much needed clarity to the valuation of pleural plaques as a physical stage such feelings would be most acutely method by which damages in asymptomatic injury Gillen LJ engaged in an analysis of the felt, however over the passage of time this pleural plaques cases are to be assessed. damages recoverable for comparable injuries, would wane in the absence of further medical Although how strictly this formula will be in particular lung injuries and scarring. He scares. followed in future cases remains to be seen. 16 Journal of the LSNI January-March 2017

Code of Practice for Tribunal Representatives

and regulations relevant to the decision under 2. The procedure at hearing shall be such as appeal. the tribunal chairperson shall determine. This is provided for in Regulation 49(1) Currently a copy of the submission is sent to the of the Social Security and Child Support appellant at the same time as it is sent to the (Decisions and Appeals) Regulations Appeals’ Service (TAS). This will usually occur (Northern Ireland) 1999. sometime prior to the notice of hearing being issued by TAS. It is important to commence 3. Representatives should be aware that the preparing for the appeal and to gather all tribunal members will wish to question evidence, including medical evidence, once the appellants and witnesses in order to clarify submission papers are issued. Representatives many aspects of the oral and written are expected to read the submission and to be evidence provided at hearing and the familiar with it at the hearing. If it becomes arguments contained in written submissions apparent to a representative prior to the provided by the parties. Any medical The President of Appeal Tribunals, Mr hearing that an appellant has not received the reports or other written evidence in support John Duffy, has requested that the Code submission the representative should contact of an appellant’s appeal shall normally of Practice for Tribunal Representatives TAS in relation to this well in advance of the be forwarded to the Appeals’ Service not be published in The Writ. It is also hearing. It should not be assumed that an later than SEVEN days prior to the hearing, downloadable from the Society’s website at appeal will be adjourned on account of the to facilitate distribution to all parties in www.lawsoc-ni.org absence of the submission. advance of the hearing. Representatives should ensure that appellants are always Introduction Written submission by appellant/ aware that they may be asked questions representative of a very sensitive nature eg in relation Representatives play a vital role in the working to their physical and mental health and of the tribunal system. The Code of Practice Whilst it is not compulsory to do so, it will their ability to carry out certain activities. seeks to provide guidance to the many often be the case that a representative and/ Much of this may be intimate, private and representatives appearing before tribunals. or appellant will wish to make a written personal. The nature of the tribunal’s task Whilst the Code has no formal statutory basis it submission for consideration by the tribunal. in this regard is such that many appellants is hoped that it will provide a statement of best Any such submission together with supporting may feel aggrieved and sometimes practice for those providing representation. evidence (including medical evidence) should offended by it. Tribunals must ask very be provided to the tribunal well in advance searching questions and will always seek to The Purpose of this Code of Practice is: of the hearing and in all cases not later than do it in a proportionate and sensitive way. SEVEN days prior to the hearing. This will Representatives play a pivotal role in giving a) To explain what Appeal Tribunals expect enable TAS to circulate the material to tribunal appellants advance notice of this type of from representatives both prior to and at members prior to the hearing. Copies of any questioning. hearing. Social Security Commissioners’/Court decisions relied upon should also be provided together 4. Representatives should reassure appellants b) To ensure that representatives use their with a written explanation of how any such that all information/evidence provided in best endeavours to secure compliance decision(s) may be relevant to the issues in connection with an appeal will be treated with Directions made by tribunals. dispute at the hearing. by the tribunal with the strictest confidence, subject to any disclosure on appeal or to the The Tribunal hearing Office of the President. Written submission by the Department 1. Representatives should use their best 5. A representative should at all times ensure A Departmental decision-maker will have endeavours to be in attendance at least the confidentiality of his client’s information. prepared a written submission in advance of 15 minutes prior to the allocated hearing the hearing. That submission will generally time. This will provide ample time to 6. In most cases only one representative will contain much of the evidence relied upon by consult with the appellant and view be allowed to address the tribunal in that the decision-maker. It should also include medical notes and records, if available. capacity. particulars of the decision under appeal and Representatives should also ensure that any other relevant decisions, the reasons for appellants are aware of the possibility that 7. A representative must appreciate that it is the decision(s) and an explanation of how the an appeal may not always commence at the appellant who must give evidence as to decision-maker applied the facts of the claim the allocated time due to other pre-listed the issues in dispute, not the representative. to the relevant law. The submission should appeals taking longer than may have been The representative’s role is to assist the also contain a copy of the statutory provisions anticipated. appellant to put his case by directing the Journal of the LSNI 17 January-March 2017

tribunal to any relevant matters of fact that all relevant evidence is adduced a position to proceed to hearing on the first or law. The representative will not be and properly weighed. The tribunal’s allocated date. allowed to deflect the tribunal from its overall aim is to ensure that the appellant primary task of assessing all relevant receives a fair hearing during which all Representatives are asked to note as follows: evidence. This task cannot properly be relevant issues are properly addressed. carried out unless the tribunal hear from Representatives will use best endeavours a) In the event that a representative believes and question the appellant directly. to facilitate this overall aim. or becomes aware prior to listing that he/ she will be unable to attend for hearing 8. The representative will always have the 12. Representatives and appellants will be on particular dates (due, for example to opportunity to ask relevant questions and treated by the tribunal with courtesy, holiday commitments), the representative to make submissions. politeness and respect. It is expected shall inform the Appeals’ Service of this at that the tribunal members, clerks and the earliest opportunity. This MAY, subject 9. Any statements of fact made by a administrators will be treated in a similar to the requirements and normal listing representative are not evidence and may way by representatives and appellants. practices of the Appeals’ Service, prevent a be disregarded unless they relate to case being listed unnecessarily. matters within the representative’s own Representatives will use their best knowledge. There is nothing to prevent a endeavours to ensure that appellants b) Subject to the provisions of Regulation 51 representative giving evidence if he wishes are aware of this and that they too of the Decisions and Appeals Regulations, to do so as long as the evidence relates will behave appropriately. For the in the event that a representative seeks a to matters within his own knowledge. avoidance of doubt representatives and postponement of a hearing in relation to The mere fact that he is a representative appellants are informed that foul and which he/she is on record it will generally does not prevent him from also being a abusive language, threats and/or acts be preferable that such a request be witness. The tribunal will evaluate the of violence towards tribunal members received from the representative in writing representative’s oral evidence in the same or staff will not be tolerated under any and stating the grounds for the request. way that it evaluates all other evidence. circumstances and may be the subject of The fact that the evidence comes from a a report to the police and, in the case of c) Representa tives may sometimes assume representative does not mean that it can a representative, to his/her employer, that, if they are not available on the day either be discounted or given any special funding organisation and/or professional of the hearing, an application to postpone status. body. on those grounds will automatically be successful and may advise an appellant 10. A representative’s duty to do his best 13. Presenting Officers are expected to be not to attend the hearing. This is wrong. In for an appellant must be tempered by familiar with all the submission papers those circumstances an individual tribunal an obligation to at all times conduct the (including those provided by appellants may, in its absolute discretion, decide to appellant’s business in a manner which and/or their representatives) and shall proceed with the hearing, subject of course respects the tribunal and is in accordance expect to be questioned by the tribunal in to an appellant’s right to a fair hearing. with accepted professional standards. relation to those documents. Presenting Officers must also be in a position to d) In the event that a representative finds that A representative should never: answer questions from the tribunal, the he/she is double booked for a particular a) deceive or knowingly or recklessly appellant and his/her representative. session he/she should seek to ensure that mislead the tribunal both hearings will be dealt with, otherwise 14. All parties to the appeal will be given an arrangements should be made to secure b) indicate agreement with information opportunity to make submissions to the the services of another representative well put forward by another person which tribunal. in advance of the hearing. If an appellant the representative knows to be false is represented by a representative Postponements and adjournments organisation (eg Citizens’ Advice Bureau) c) call a witness whose evidence the or a firm of solicitors the tribunal may representative knows to be false (A Postponement relates to an application expect that organisation/firm to take for deferral PRIOR TO the hearing. An reasonable steps to arrange for a substitute d) attempt to influence a witness with Adjournment relates to an application for representative to attend and, if that is not regard to the contents of a statement deferral AT HEARING). possible, to explain why. which the representative is taking More than 20% of appeals are adjourned for e) In the event that a hearing is postponed or e) tamper with or falsify evidence different reasons. This figure can be greatly adjourned with directions representatives reduced because appellants are entitled to should ensure that all such directions are Failure to adhere to these obligations may have their appeals dealt with at the earliest complied with in the manner directed result in a report to the representative’s opportunity. by the tribunal. Unless the circumstances employer, funding organisation and/or are exceptional, representatives should professional body. Representatives should be aware that once be aware that no further postponement/ an appeal has been listed for hearing it will adjournment may be considered by the 11. The tribunal will cooperate with the only be postponed/adjourned in exceptional tribunal on account of any failure to comply representative with a view to ensuring circumstances. Representatives should be in with the tribunal’s directions. 18 Journal of the LSNI January-March 2017

key areas including news and events as well Signing into the new Members’ Section New Law as allowing the user to access information about the Society, its regulatory functions, its Unlike the old website the new website Society website complaint section, consultations and responses requires all solicitor members to enter their as well as contact details for local associations email address (which must be registered with The Society is delighted and specialist solicitor groups. the Society) and a password. to announce the launch Of particular interest are the of its new website Members simply enter their email address and • Solicitors’ directory section which generate a password of their choosing. There is allows the user a faster more prescriptive no longer a need to enter your surname or roll search facility detailing information about number. Once the member has signed in they www.lawsoc-ni.org individual solicitors, firms, locations and will be greeted with a new layout with new services in a clear and concise way. sections for them to explore.

• Complaints section which outlines to the New Members’ Section layout user the five stage process involved in Over the course of the last making a complaint to the Society. Immediately upon signing in members will be year the Society has been greeted with their name which indicates that • News and events section which highlights their sign in has been successful. working closely with the and presents news and events items from Web Bureau to develop and the Society and others. The Members’ Section is laid out in two areas on the left and right hand side of the page. build a new website which New Members’ Section would meet the needs of The left hand side includes – For solicitor members the new Members’ various key audiences. Section has been completely revamped • An alert bar which highlights issues of and designed to meet the requirements of importance to members. The central requirement of the new website members. development has been to provide information • A find an event section which allows in a timely, relevant and accessible format and The old antiquated site was often criticised for members to quickly search and access to provide enhanced and interactive services being bland, uninviting and poor when it came details of CPD and events being organised for members. to finding information required by solicitor by the Society and others. members. The new section has been built After many months the new website is now with these comments in mind. • An upcoming events/CPD training section operational with new sections and new which provides daily news updates on interactive services now available. New and exciting parts include an online information showcased in the public section payment system for Law Society CPD of the website and private news items for New website layout seminars/events, access to self-contained members only. Information which appears in information sections clearly laid out, an the E-nformer and on Twitter is showcased Those accessing www.lawsoc-ni.org and optimised search facility, E-nformers listed here. The new search facility within the arriving at the front page will now be chronologically, and access to the Law Society Members’ Section allows members to presented with a new layout showcasing Twitter feed. search by topic or general interest. Journal of the LSNI 19 January-March 2017

• A Library section providing information • Events section showcases Society and The new website is very much a work in about the Library and Information services, non-Society events of general interest to progress and within the coming month’s new FAQs, Publications, Library Updater, contact members from conferences, to invitations announcements will be made about how details and Libero. and charity events. members can fully utilise the website.

• A Services section providing a one stop • CPD training section allows members to Perhaps the most exciting announcement will location for members seeking information review the Society’s CPD seminars/courses be confirmation that the Society will be adding on a wide range of topics including and to book courses using the new online a Find a European Lawyer section to its new conveyancing, Home Charter, cybercrimes, payment system. website. file disposal etc. • Publications section in the members Find a European Lawyer or FAL is a European On the right hand side of the page members area provides members with access to initiative to provide European citizens with will see a list of hyperlinks in the following publications of practical use to them and access to a directory of lawyers in each order: their practice such as conveyancing/Home jurisdiction who specialise in specific legal Charter documents, annual reports and services. Local solicitors wishing to showcase • President’ s message showcasing issues of rebates forms to name but a few. the services they offer and specialisms they importance to the profession. undertake will have an opportunity to do so • E-nformer section allows members to through FAL. • My profile section which is bespoke access previous editions of the E-nformer to each solicitor. Whenever a member and other stand-alone communications Unlike the Society’s online directory FAL will completes a Law Society CPD course their issued by the Society. showcase individual solicitor’s specialisms. attendance will be shown in a graph It is an excellent opportunity for local solicitors recording their overall CPD progress. This • The Writ section provides members with to showcase and market their services to is an invaluable tool allowing members an access to copies of the The Writ published European citizens who may need legal advice opportunity to access an accurate record by the Society from 2000. for this jurisdiction such as those involved in a of Society courses they have undertaken. car accident or divorce. (Please note that the profile at this • Library and information services section moment in time does not record provides a quick link to an important This article provides a very quick overview of external courses undertaken). section on the website. the new sections of the Law Society website. It is by no means exhaustive. • News section as previously indicated • Members’ services section again provides provides members with access to public a quick link to information often requested Members are encouraged to take time out of and private news items, practice directions, by members. their busy schedule to sign into the Members’ guidance notes from the Society and other Section to explore the new sections and begin key sources. The information is updated • Twitter feed showcases news, to use the online booking facility. on a daily basis and reflects information information, event and CPD tweets from issued in the E-nformer. the Society and others including the Lord If members have any comments or questions Chief Justice’s Office. please email [email protected] 20 Journal of the LSNI January-March 2017

www.lawsoc-ni.org

How to log into the new Members’ Section

The new Members’ Section of the Society website has been designed to increase functionality, information provision and security.

To date the vast majority of members have been able to login and reset their password to access the Members’ Section. Those contacting the Society who have had problems logging in have discovered that: • Their password reset email has been • Individual email addresses have not blocked or has been found in their been provided to the Society and the • They have not registered an individual trash/junk box. firm is relying on Law@ or info@ email address with the Society. accounts for multiple people.

What do I need to do to login for the first time?

The new Members’ Section of the website requires that all members supply their email address and a generated password.

This replaces the old website login were members were required to provide their surname and roll number.

As this is a new website members will have to do the following:

1. In order to login to the members’ area each member/user will be required to To reset your password click on https://www. Check your junk box and trash can!! supply their email address. lawsoc-ni.org/recover-password 6. Members must choose a password - 2. Your email address must match the please make this a secure password (a email address provided to the Law mix of upper and lower case letters, Society which is kept on record. If you and numbers or different characters). have not supplied the Society with your email address you will not be able to 7. This password will be required for proceed. future logins. 3. To register your email address contact 8. If forgotten, members can reset their Tom Speers at tom.speers@lawsoc- password using the above link ni.org so he can update your Law Society member profile. What if I have problems? 4. When logging in for the first time each 5. On entering your email address at the member/user will have to reset their above link members will be sent an email If you have problems or issues please feel password using the following link: with a link to reset their password. free to contact [email protected]

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22 Journal of the LSNI January-March 2017

Annual Dinner 2016

The Society’s Annual Dinner was held at the Merchant Hotel Belfast on 5 December 2016.

More than 150 members and their guests attended including 42 newly admitted solicitors.

Speeches were delivered by the Society’s new President, Ian Huddleston, guest speaker, The Right Honourable Lord Justice Weir and Brigid Moore speaking on behalf of the newly admitted solicitors.

The Society wishes to thank BDO for its sponsorship and support of the Annual Dinner 2016. From left: Lord Justice Weir; Ian Huddleston; Brigid Moore and Alan Hunter.

From left: Lord Justice Weir; Ian Huddleston; Sarah McClenaghan (BDO) and Alan Hunter. Madame Justice McBride and Ian Huddleston.

From left: District Judge Gilpin; John Guerin; Eilidh Wiseman (President of the Law From left: John Guerin and Eilidh Wiseman (President Society of Scotland); Alan Hunter and Alastair Rankin. of the Law Society of Scotland). Journal of the LSNI 23 January-March 2017

From left: John Guerin; Eileen Ewing; Ian Huddleston and Carol Lord Justice Weir. Malcolmson (BDO).

From left: Laura Thom; Emily Paisley; Rachel Brady; Katie Buchanan From left: Hanna McDaid; Sarah Stewart; Helen Smyth and Aoife King. and Sarah Graham.

From left: Kirsten McKevitt; Olivia O’Kane and Eoghan McKenna. From left: Lynn Mounstephen; Avril Browne; Lynn Trainor and Jill Downing.

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Xperience Law Firm Advert Amendments.indd 2 01/02/2017 14:45 26 Journal of the LSNI January-March 2017

Marie Curie - Law Society From left: Marie Curie Hospice Lead Nurse, Cindy Anderson; Society President, Ian Charity for 2017 Huddleston; Head of Regional Partnerships & NI Fundraising, Ciara Gallagher.

The Society has announced that Marie Curie is its chosen charity of the year for 2017. Ciara Gallagher, Head of Regional Partnerships is only made possible thanks to the generous & NI Fundraising, said: donations of our supporters.” The President of the Society, Ian Huddleston, was joined at the announcement of the new “Marie Curie is absolutely delighted to have Marie Curie provide care and support for charity partnership by Marie Curie Hospice been chosen as the Law Society of Northern around 2,500 people living with a terminal Lead Nurse, Cindy Anderson and Head of Ireland’s Charity of the year. illness in Northern Ireland each year. There Regional Partnerships & NI Fundraising, Ciara are more than 120 Marie Curie Nurses working Gallagher. “All the funds raised from the partnership will in Northern Ireland, caring for around 2,000 help Marie Curie Nurses provide high quality terminally ill people and their families in their Commenting the President said: care to people with terminal illnesses in their homes each year. “The Law Society of Northern Ireland looks own homes right across Northern Ireland or in forward to supporting the invaluable work and the charity’s hospice in Belfast. The Marie Curie Hospice in Belfast cares for services which Marie Curie provide through around 500 people each year, including people awareness and fundraising initiatives with our “Marie Curie services are always free of staying in the hospice and those using day members in 2017.” charge for all patients and their families. This hospice services.

New Home Charter logo The Society has been reviewing the use of its branding and logo on solicitor firms’ stationery and websites. SERVERS The Society recognises the need to provide firms with up-to-date logos to allow them to showcase their membership of the Law Society of Northern Ireland and of the Home Charter Scheme.

Downloading the new logo HOME CHARTER SCHEME The new Home Charter logo is available to download in the Members’ Section of the Society’s website at: THE LAW SOCIETY OF https://www.lawsoc-ni.org/home-charter-logo NORTHERN IRELAND

The-Writ-A4-Full-Page-Advert-Feb2017.indd 1 09/02/2017 14:49 SERVERS

The-Writ-A4-Full-Page-Advert-Feb2017.indd 1 09/02/2017 14:49 28 Journal of the LSNI January-March 2017

Society publishes new information leaflets

The Society in partnership with Queen’s University, School of Modern Languages has launched ‘Connecting with our Community’, a pilot initiative to promote greater access to information about the solicitor profession and the invaluable services which solicitors provide to the community.

The Society is pleased to announce the publication of 36 information leaflets on legal matters which have been translated by the students of Queen’s University, School of Our translators - Liyang Lu; Jinghan Li and Orla McGrory. Modern Languages and Central Translations (N.) Ltd into nine languages: Arabic, Chinese, Czech, French, German, Irish, Polish, Portuguese and Spanish.

The leaflets are available for download from the Publications Section of the Society’s website and are available in hard copy format upon request from Law Society reception on 028 9023 1614.

Connecting with our Community is a pilot initiative and the Society hopes to add to the suite of publications available along with a new engagement programme which seeks to promote the network of solicitor firms to every part of our community in coming months.

From left: Then Society President, John Guerin; Meng Yuhong, Deputy Chinese Consul and Alan Hunter, Society Chief Executive.

同居—— 您的权利 Yi Feng from Queen’s University, School of Modern Languages. Sporządzenie Testamentu

Comprar y Vivir en un Apartamento

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Eine Immobiliekaufen mit und Gemeinschaftsbereichen darin wohnen Journal of the LSNI 23 January-March 2017

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Society launches Legally Able Group More than 50 members of the legal profession and representatives from community and voluntary groups were in attendance at the launch of a new solicitor group set up to raise awareness of disability issues amongst solicitors and their clients.

The new group called ‘Legally Able’ was formally launched at Law Society House by the then President of the Law Society, John Guerin, From left: Laura Lee Jenkins, Chair of the new group, then President of the Law Society, who was joined by Andy Allen MLA and solicitor John Guerin and Andy Allen MLA. Laura Lee Jenkins, and Chair of the new group.

Commenting after the launch, John Guerin, said: Andy Allen MLA said: and working with the forum to assist their “The Law Society is delighted to launch Legally “I was delighted to accept the invitation from work.” Able and we wish to take this opportunity to the Law Society to their launch of Legally Able. thank Andy Allen MLA and Laura Lee Jenkins It is encouraging to see the Law Society taking The new group is open to any person who is for their support and help in launching the a proactive approach by setting up this forum on the Roll of Solicitors in Northern Ireland, new group. Legally Able will provide a forum to help to raise awareness of disability issues disabled colleagues and those with experience for discussion and a platform to identify amongst solicitors and their clients and further of working with or otherwise supporting issues of interest to the profession and wider identify issues of interest to the profession and disabled colleagues, clients, family or friends or community.” wider community. I look forward to engaging the wider community.

Society meets Lord Dunlop to discuss Brexit

In October 2016 the then President of the Society, John Guerin and Chief Executive, Alan Hunter, met with Lord Dunlop, Parliamentary Under Secretary of State, in Whitehall in London to discuss the Northern Implications of Brexit.

Commenting after the meeting, the President said:

“Our meeting with Lord Dunlop was both constructive and informative. We wish to thank him for meeting with the Society on this important issue.”

From left: John Guerin, then Society President; Lord Dunlop, Parliamentary Under Secretary of State at the NI Office and Alan Hunter, Society Chief Executive. DO IT FOR YOUR CAUSE

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Charity registration number: NIC102633 A lasting gift to Northern Ireland Charities 32 Journal of the LSNI January-March 2017

A packed year of fundraising Other fundraising activities included a golf activities by members of the Society Society raises day and charity raffles all of which have contributed to the final amount raised. has raised more than £15,000 for £15,000 in aid of CLIC Sargent, the cancer charity Commenting, John Guerin, President of the supporting children and young CLIC Sargent Society 2015/16, said: people. “We are delighted to have supported CLIC Sargent and to have raised more than £15,000 The Society has over the course of the last which will go towards the invaluable work year been supporting and fundraising on which CLIC Sargent provides for children and behalf of CLIC Sargent its chosen charity of the young people with cancer. The Society is year. grateful to the members of the legal profession Perhaps the most successful fundraising event and judiciary who been so supportive.” was the CLIC-athon challenge in June 2016, which saw members of the legal profession Nadine Campbell, Fundraising Manager with in Northern Ireland battle it out in front of CLIC Sargent, said: the High Court on ‘spin bikes’ to secure the furthest distances travelled in an hour. “We would like to thank the Law Society of Northern Ireland and its President, John Twenty five teams of solicitors, barristers and Guerin, for their commitment and dedication in members of the Judiciary including Lord Chief Nadine Campbell, Fundraising Manager from raising this fantastic amount of money for CLIC Justice, Sir Declan Morgan gave their time and CLIC Sargent with John Guerin, President of the Sargent. The money raised can support four energy to raise money for CLIC Sargent. Law Society of Northern Ireland 2015/16. families to stay in our homes for four months.”

Law of Children in Northern Ireland: the Annotated Legislation

The Society has published a completely new and revised second edition of the very popular Law of Children in Northern Ireland: the Annotated Legislation by Michael Long QC and Judge Gemma Loughran.

The new edition provides family law practitioners with the annotated texts of the major primary and secondary legislation applying to children in Northern Ireland, conveniently collected in one volume.

The authors have used their extensive practical experience to produce updated and amended versions of the relevant legislation. In addition, the book contains an expanded section on the international aspects of the law relating to children together with new commentary on consent to medical treatment and extended coverage of the Human Rights Act. Reference is also made to unreported Family Care Centre The Law Pictured at the book launch held at Law Society decisions as well as decisions of the House of of Children House are Mr Justice O’Hara, Heather Semple, Judge Lords/Supreme Court on appeals from Northern in Northern Loughran, Michael Long QC, Deborah McBride, Alan Ireland and to relevant applications to the Ireland: Hunter and John Guerin. European Court of Human Rights. The legislation The Annotated has also been fully annotated with reported and Legislation unreported judgments of the Northern Ireland Second Edition Copies are available from the Law Society Library, By High Court and Court of Appeal. The format of Michael Long QC price £70. and the text also allows (where appropriate) easy Judge Gemma Loughran reference to the standard English textbooks. Journal of the LSNI 33 January-March 2017

Sports Law Conference 2016

In November 2016 Law Society House was the venue for the Annual Sports Law Conference.

Now in its fifth year the conference has gone from strength to strength with more members than ever from the legal, medical, sporting Contributors to the Sports Law Conference 2016 and academic professions attending the conference. Jonny Madill, Sheridans, London; contributions from academia and the judiciary Feargal Logan, Logan & Corry Solicitors and who took the opportunity to provide an This year the theme of the conference was Tyrone and under 21 GAA manager; overview of the challenges lawyers face Good Governance and Equality and attendees Professor Jack Anderson, Court of Arbitration in advising their clients - whether they be had an opportunity to hear from speakers for Sport; governing bodies, clubs, managers, coaches, including: Angela Platt, Chairperson Female Sports players or officials. Topics discussed at the Forum; conference included transparency, diversity, Keith McGarry, Sports Law NI and Conn & Andrew Johnston, Managing Director, NI integrity, leadership and decision-making, Fenton Solicitors; Football League. financial probity and the future of the sports Michael McKillop, Paralympic gold medalist; industry in a digital world. The conference Erin Stephens, Principal in-house solicitor, The conference, which was organised by drew on the expertise of an experienced Sport England; the Society in association with the Northern panel for questions and discussion. This Andrew Nixon, Head of Sport, Sheridans, Ireland Sports Forum, provided attendees with year’s conference was of particular interest London; a comprehensive update on sports law. to Governing Bodies, their members and In addition, attendees heard from prominent advisors, as issues of good governance and speakers in the sports law field, with equality in sport were discussed.

The Society is grateful for the continuing support of Northern Ireland Sports Forum in organising the conference. 34 Journal of the LSNI January-March 2017

More than 230 solicitors from across Northern Ireland attended the Society’s annual Conveyancing Conference at the Conveyancing Conference Ramada Hotel in Belfast. The conference programme covered current issues of importance and relevance to solicitors who undertake conveyancing transactions. Those attending had an opportunity to hear from a number of key note speakers including:

• Brian Speers, CMG Cunningham Dickey Solicitors • Nigel Thompson, Moore Stephens (NI) • Chris Taylor, Titlesolv • Christine Farrell, Land and Property Services • Maria Gillen, Gillen & Co Solicitors • Cathal Gilmore, Gilmore Solicitors • Mark Borland, Conway Todd and Co Solicitors

Attendees also had an opportunity to purchase the Society’s wide range of conveyancing and property publications from the Society’s Library and Business Centre stand.

From left: Chris Taylor, CEO of Titlesolv; Christine Farrell, Land & Property Services; Brian The Society is grateful to Titlesolv for its Speers, LSNI; Gary Mills, Bluechip Title Solutions and Andrew Kirkpatrick, LSNI. support and sponsorship of the conference.

EUROPEAN LAWYERS’ DAY 2 16

In December 2016, more than 80 solicitors from across Northern Ireland attended a special event to mark European Lawyers’ Day 2016.

The Society was delighted to welcome recently appointed County Court Judge Her Honour Judge Elizabeth McCaffrey and Michael Robinson CCBE, both of whom spoke. Journal of the LSNI 35 January-March 2017

Dispute Resolution Service accredited

The Dispute Resolution Service (DRS) has announced that it has received accreditation from the Chartered Trading Standards Institute for consumer mediation.

The announcement of accreditation of the DRS was made at an event at Parliament Buildings, Stormont and was attended by MLAs and representatives from business, community, voluntary and legal sectors.

The European Directive on Consumer ADR, which is now in force, requires that all businesses throughout Northern Ireland must advise consumers in their terms and conditions if they offer From left: Brian Dolaghan, Invest NI; Alan Hunter, Society Chief mediation as a means to resolve any potential dispute and what Executive; Brian Speers, DRS Chair; Anne Beggs, Invest NI; Colum mediation provider they suggest using. Eastwood MLA; Ian Huddleston, Society President and Michael Bready, Mediator/Barrister. The Society has now updated its Guidance in relation to the European Directive on Consumer ADR to reflect the accreditation businesses they are now required by the European Consumer Mediation of the DRS. Firms may wish to amend their client care letters Directive to consider mediation with regards to consumer disputes. accordingly. “The cost to local businesses is minimal and the potential benefits in terms Speaking at the mediation event, Brian Speers, Chairman of the of overall cost savings underscores the effectiveness of mediation as a Dispute Resolution Service, said: consumer dispute solution.

“It is important that consumers and businesses throughout “We are delighted that the Dispute Resolution Service is the only mediation Northern Ireland are aware of what mediation is, understand how provider based in Northern Ireland to be fully accredited by the Chartered it can help them and that it is accessible through the accredited Trading Standards Institute for consumer mediation. Dispute Resolution Service. “We would encourage consumers and local businesses to find out more “For local consumers it provides an alternative way of attempting about how mediation can help them by contacting the DRS and visiting to resolve their dispute which is free and often quicker. For local www.mediatorsni.com”.

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IBA Bar Leaders Conference & Mid-Year Meeting Belfast 24 -27 May 2017

The International Bar Association Scotland presented by the UK withdrawing (IBA) is coming to Belfast. The from the EU? What are the opportunities and challenges for these law firms and bar legal, business and political associations posed by such withdrawal? communities in Belfast will be Similarly, what are the challenges and opening their doors to welcome opportunities posed by such withdrawal for law firms and Bar Associations located the IBA Bar Leaders Conference and outside the UK? Mid-Year Meeting on 24 – 27 May 2017. The IBA has a membership • Protectionism, cooperation or The Law Society, through its IBA of more than 80,000 individual exploitation? How local and international representative, Norville Connolly, has for some lawyers work together today, and best lawyers and more than 190 Bar years been lobbying the IBA to host one of practices for Bar Associations to help Associations and Law Societies its major conferences in Belfast. This is now their professions win a bigger slice of the going to happen with the IBA Bar Leaders international pie. spanning in excess of 160 countries. Conference & Mid-Year Meeting coming to Belfast in May this year. • How can leadership be encouraged Most of the leaders of these Bar Associations within Bar Associations? and Law Societies together with the leaders A most interesting business and social of the many IBA committees will be in Belfast programme has been put together for • Robot lawyers? The challenges and for this conference. The President of the IBA, the conference, which will bring together opportunities to the legal community Martin Solc, the Executive Director, Mark Ellis, delegates from around the globe to discuss in the age of artificial intelligence. and many of the IBA secretariat will also the latest developments and thorny issues Artificial Intelligence (AI) has made attend. The IBA will also convene its formal affecting the legal profession today. extraordinary progress in the past few Council meeting in Belfast on 27 May 2017 years, thanks to a versatile new technique and the IBA’s Human Rights Institute will also This year’s programme will include input from called ‘deep learning’. Suddenly AI have its formal Council meeting on Friday 26 expert panelists and commentators as well systems are achieving impressive results May 2017. as encouraging interaction from delegates in in a range of tasks. Given enough large several discussion sessions. data (or deep learning) computers, In the past number of years the Law Society modeled on the brain’s architecture, can has been extremely proactive in engaging The speakers will include the Society’s be trained to do all kinds of things. with the international legal community to President, Ian Huddleston and Chief Executive, We read about robots that have favorably profile the legal expertise, which our Alan Hunter, as well as some of our members. “personalities.” For lawyers employing local firms have, and with the help of Invest NI computer programs that perform certain to help them seek out new work opportunities Topics will include: tasks once handled by lawyers, the ethical in other jurisdictions. A total of nine of our rules and obligations continue. However, local law firms sent representatives to the • Brexit: opportunities or challenges for is it simply old wine in new bottles, last IBA Conference in Washington USA in Bar Associations and law firms. or are the current rules insufficient to September 2016 and this law firm networking In June 2016 the United Kingdom in a maintain professional standards in the is already bearing fruit for some of these firms referendum voted to leave the European use of AI? The move towards increased by creating contacts for new legal work. Union (EU). However, Scotland and automation of legal services continues Northern Ireland voted to remain. The to gather momentum as pressures to The forthcoming conference will create further British Prime Minister, Teresa May, has lower costs, increase efficiency, satisfy networking opportunities for attendees to indicated that Article 50 of the Treaty on existing clients and attract new business meet international business lawyers with European Union, the formal procedure for continue. This programme addresses the diverse legal interests and for these business withdrawing, will be invoked by the end following questions: What is the detail of lawyers to explore the legal, business and of March 2017. What are the implications this automation of legal services? How other opportunities presented by Belfast and for law firms and Bar Associations in has this changed how lawyers offer their Northern Ireland England & Wales, Northern Ireland and services? What are the costs and earnings Journal of the LSNI 37 January-March 2017

implications for clients and law firms? To • Closing Reception in the City Hall what extent will the numbers of employed Belfast on 26 May 2017 lawyers be affected? What are the expected changes to IT and consequently The IBA is the world’s leading organisation legal practice in the coming years? What of international legal practitioners, Bar are the challenges to ethical rules and Associations and Law Societies. Its principal obligations? What are the implications of aims and objectives are to promote an all of this for bar associations? exchange of information between legal associations worldwide, to support the • IBA Legal Aid roundtable: A discussion independence of the judiciary and the right which will inform the IBA Bar Issues of lawyers to practise their profession without Commission and the IBA Legal Aid & Access interference and to support of human rights Enquiries also to the Law Society or to to Justice Committee in developing an IBA for lawyers worldwide through its Human [email protected] Guidelines on Legal Aid. Rights Institute. What better place for the IBA to have its Bar Leaders Conference and We look forward to welcoming the The Steering Committee has also put together Mid-Year Meeting than in Belfast Northern International Bar Association here on 24 May a most interesting social programme, the Ireland and for the attendees to explore the 2017. highlights of which are as follows: many opportunities to work with local law firms here. Norville Connolly • Welcome Reception in the High Court of Chair of the Steering Group for IBA Conference Justice on 24 May 2017 Registration for the conference will open on 28 Belfast 2017. February but people can register their interest Past President Law Society Northern Ireland • Bar Leaders’ Dinner in Parliament online and then they will receive an update Law Society Northern Ireland’s Nominee to Buildings, Stormont, Belfast, with a when it ‘goes live’. the IBA. pre-dinner tour and historical talk by Dr Senior Officer, IBA Bar Issues Commission Eamon Phoenix (ticketed event) 25 May The link is http://www.ibanet.org/ Council Member, IBA Human Rights 2017 Conferences/conf782.aspx. Commission.

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condenal Notice is hereby given that the one We are o nd out more or make a donaon call 01268 1333 hundred and fifty third Annual General independent of any or email admin@lawcareorguk professional Meeting of the Solicitors’ Benevolent f you need our help, call our condenal helpline on Association will be held at the Law or regulatory Body, and can 0808 800 0023 t’s free, even from a mobile phone Society, Blackhall Place, Dublin 7 on arrange discreet Monday 10 April 2017 at 12.30pm treatment for addicon, and out- 1 To consider the Annual Report and of-hours Accounts for the year ended 30 counselling for November 2016 other issues And the call is free, even from 2 To elect Directors a mobile 0808 800 0023 3 To deal with other matters appropriate to a General Meeting. www.lawcare.org.uk LawCare Ltd Registered as a charity in England and Wales no 1061685 LawCare Ltd Registered as a charity in England and Wales no 1061685 and in Scotland no 39335 Company registraon no 331395 and in Scotland no 39335 Company registraon no 331395 Journal of the LSNI 39 January-March 2017

of the profession. She was, as many of you we attach a form of donation which you may have personal cause to know, readily might complete and either return to one of us approachable, generous with her time and for onward transmission to Queen’s or directly invariably thoughtful and kind to those in to the University. If you are willing to do so need of help, reassurance or guidance. please bear in mind that the use of Gift Aid adds significantly to the amount receivable by There is a widespread feeling among the charity at no additional cost to the donor. colleagues and members of the profession that they would like to find a means of Yours sincerely, remembering Corinne and at the same time to recognise in her memory her constant The Right Honourable Sir Declan Morgan, desire to help those starting out in practice. Lord Chief Justice of Northern Ireland Proposed prize in It is well understood that those now finding His Honour Judge David McFarland, Recorder memory of Her their feet in the profession often have to of Belfast do so against a background of considerable Mrs Fiona Bagnall, Presiding District Judge Honour Judge personal debt which makes the task of (Magistrates’ Courts) getting going even more problematic. Mr John Guerin, President of the Law Society Corinne Philpott QC 2015/2016 Our plan therefore is that there should be Mr Liam McCollum QC, Chairman of the Bar endowed a prize or prizes at the Institute Council Dear Colleague of Professional Legal Studies which would enable one or more of the graduates leaving Anyone wishing to make a donation We know that you will have been much there to receive some tangible assistance with should contact: saddened by the untimely death of Corinne their transition to practice and ensure that, after her long illness, borne with great from year to year, Corinne’s name and work Naomi King fortitude. Throughout her time in practice will continue to be remembered in a practical Development Manager at the Bar, as its Vice-Chairman, as the way of which we feel she would have Development & Alumni Relations Office first Chairman of the Guardian ad Litem warmly approved. We write to you with the Queen’s University Belfast Agency and thereafter during all her years knowledge and support of Corinne’s family. Belfast BT7 1NN on the Bench one of her chief interests 028 9097 3101 and concerns was the encouragement and We very much hope that you will feel inclined [email protected] support of young members of both branches to support this endeavour and, to that end, http://www.queensfoundation.com/

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40 Journal of the LSNI January-March 2017

He graduated from Liverpool University perhaps the most difficult of all dealing with and served his apprenticeship in C & J Black the consequences of the tragic deaths of before being admitted to the Roll of Solicitors Members of the profession. in September 1964. He continued in that practice until his appointment as Secretary of Throughout these he preserved a great sense the Law Society in 1985. of humour. On one occasion during a crisis he asked me what we should tell the Council Shortly after becoming a Solicitor he became of the Society. I replied that we should tell Editor of “The Gazette” in March 1966. This them the whole truth. He grinned broadly publication was the predecessor of “The Writ”. before saying “that will never do”. Council was, of course, told everything and, of He retired from his position as Secretary in course, unanimously approved his strategy. 1997 but continued to be closely involved with the legal profession particularly as Chair He never hesitated to use humour at his own of the Legal Aid (Statutory) Committee from expense and on many occasions recalled 1996 until 1999 and Chair of various Tribunals that he was the only driver to be caught including the Competition Appeal Tribunal. speeding by the Gardai and the RUC on the same day. In addition to his involvement in the legal Obituary - profession he was also committed to the Even after suffering a heart attack he never Church of Ireland and he served that Church shrunk from completely devoting himself to Michael Davey in many capacities. In particular his advices the needs of the Society. He valued every to Lord Eames were very much appreciated Member and every employee of the Society 1940 - 2016 not only by Lord Eames but also by the wider equally. During his tenure the Society Church. During the Troubles Lord Eames had to face many changes. Michael never It is a very difficult task to write carried a very heavy burden and I have shrank from the need for embracing such personal knowledge how much he valued changes. It is difficult now to appreciate the an obituary for a friend whom Michael’s advices. The wider community will depths of divisions within our community you have known for many never know the debt owed to Michael for he which existed at this time but he always years. The history of his life never spoke of it. managed to steer the Society on a course which preserved its unity and maintained its can never do justice to a person There are those who proclaim their religion dedication to the service of every individual who achieved so much and left vigorously. Michael Davey had no need to do of whatever status or background. an indelible impression on all so because his faith was so engrained in his character that his actions and consideration He had a unique ability to give advice in who knew him. for others spoke for themselves. Above all such a way that you couldn’t reject it. The Michael prized his family. Monica was in conversation always started with the same In the case of Michael Davey it every sense his soul mate. The three children words “I was wondering if ….” is doubly difficult because his were never the subject of boasting but rather Michael had a very quiet and profound sense Above all he had a vision. A vision to discretion and capacity to keep of pride when he spoke of them. outline strategy which had the best chance confidences were legendary. of success in achieving his twin goals of I first met Michael in his role as Secretary of enhancing the Society and promoting access the Law Society shortly after his appointment. to justice for all. I quickly learnt of his diplomatic skills and his ability to advise the Council and its various He was a very patient gardener who was Committees and to negotiate with various quite happy to plant the seed of an idea and Statutory Authorities. I particularly valued let it grow over a period of time. his help during my year as President in 1991. During that time there were many difficult I have been very conscious in writing this negotiations with Government on matters that I would have difficulty so I asked such as conveyancing and Legal Aid. The Members of the profession and members success of these negotiations were largely of staff what I should write. Over and over due to Michael’s very careful planning. He again I heard the same three words. steered the Society through many difficulties. There were bombs, the consequences of a “A perfect gentleman”. major air disaster, references to the Cabinet, negotiations with Ministers and the Judiciary, negotiations with other regulatory bodies and BRIAN WALKER Journal of the LSNI 41 January-March 2017

Educated at Campbell College and the years as a committee member of the Ledley Queen’s University of Belfast Patrick was Hall Boys’ Club in East Belfast and he joined articled as an apprentice to the late Sir the Alliance Party following its launch in Thomas Brown in the practice which was 1970. then known as Johns Elliot Wallace &Co. He was admitted to the Roll of Solicitors In the early 1980s we completely refurbished on 1 January 1954 and spent some time the offices and modernised the practice. working in the Parliamentary Draftsman’s The changes included shortening the name Office at Stormont. His preference was of the firm to Johns Elliot. Patrick led and however for general practice and he enthusiastically embraced the changes. rejoined Johns Elliot Wallace & Co in 1956 this time as an assistant solicitor. He Patrick’s year of office as President of the was made a junior partner in the firm Law Society occurred at the height of the in 1958, a senior partner by 1970 and Troubles. In fact the year 1972 proved to following the death of Frank Byers and be the single bloodiest year with nearly 500 the retirement of Sir Thomas Brown he dead and thousands injured. became head partner. Like the rest of the population of Northern His main areas of expertise in law Ireland, Patrick and I and our colleagues Obituary - practice were commercial conveyancing, in our law firm endured the violence and company law and banking law. He took upheavals of the so-called Troubles. City Gerald Patrick an active interest in the affairs of the Law centre commercial buildings and businesses Society for 21 years from 1966 until his were regularly bombing targets. On many Jemphrey LLB retirement in 1987. He chaired both the occasions our colleagues and staff had to 1931-2016 Publications and Practice Committees of vacate our offices for hours at a time. On the Society and he served as President one occasion in the mid-seventies a bomb from 1972-1973. exploded in Lombard Street causing serious Gerald Patrick Jemphrey damage to many premises including our In 1958 Patrick married Ray Smyth. In own. Fortunately there were no human known to his many friends May 2016 they celebrated 58 years of causalities on that occasion which was at a and colleagues as Patrick married life. They had four sons, Michael weekend when the offices were closed. or Pat was born on the eve who practised as a solicitor for two years and then became a Bible translator; Alan Patrick was by nature a conciliator and a of St. Patrick’s Day 1931. who is a teacher at Campbell College; peace maker and a devoted family man. He His father Thomas Herbert Peter who is a minister in the Reformed will of course be greatly missed by Ray and Jemphrey worked in the linen Presbyterian Church and is currently all of his family. He will also be long, fondly serving in Galway; and Shaun who is a remembered by those of us in various walks industry and was a director of solicitor and partner in the firm of King of life who had the privilege of knowing him. Jennymount Mills. His mother and Gowdy. Elizabeth had the distinction At the Service of Thanksgiving for the JIM HENDRON of being the first woman ever life of Patrick which took place in Knock to have been employed by the Presbyterian Church on 19 July 2016, Northern Bank now known as moving tributes were made to Patrick by his sons and by representatives of his Danske Bank. twelve grandchildren.

I first met Patrick when I joined Johns Elliot Wallace & Co as an assistant solicitor in March 1958. We both eventually became senior partners in the firm but even more importantly we became good friends for life. I quickly learned to enjoy his warm wit and sense of humour. I admired his undoubted ability as a lawyer, his sheer delight in outdoor activities such as gardening and golf, and his concerned interest in social justice and public affairs. He served for a number of 42 Journal of the LSNI January-March 2017

Human rights treaties and the interpretation of domestic legislation

Convention on the Rights of Persons with utilised and Demir v Turkey (2008) EHRR 1272 Disabilities (UNCRPD) which was ratified by where the International Covenant on Civil and the European Union in December 2010. Political Rights (ICCPR) was applied in a case concerning the right of civil servants to join The traditional legal view is that a trade union on the basis that ‘the precise unincorporated international treaties are not obligations that the substantive obligations binding on domestic courts. Instead treaties of the Convention impose on contracting can be relevant in one of a number of ways. states may be interpreted, first, in the light These include where the meaning of domestic of relevant international treaties that are legislation is in doubt, the court may conclude applicable in the particular sphere’ (paragraph it should be interpreted on the basis that 69). international obligations will be honoured. Further, international treaty obligations can be This traditional approach has come under used to guide the development of common particular scrutiny in a number of recent In this article Les Allamby, Chief law. In addition, when applying the European social security legal challenges. In Burnip Commissioner of the Northern Ireland Convention on Human Rights through the v Birmingham City Council [2012] EWCA Civ Human Rights Commission, discusses Human Rights Act, the European Court has 629 the Court of Appeal considered whether the impact of human rights treaties in frequently drawn on other international restrictions on eligibility to housing benefit interpreting domestic legislation. human rights treaties in accordance with based on the number of bedrooms in a home Article 31 of the Vienna Convention on the amounted to discrimination against disabled What role do international human rights Law of Treaties. Examples of this approach people. The Court of Appeal found there had treaties have in interpreting domestic include Neulinger v Switzerland (2010) 54 been unlawful disability discrimination under legislation? Recent social security judgments EHRR 10 where the Convention for Elimination the European Convention. Maurice Kay LJ in the Supreme Court suggest they can play an of all forms of Discrimination against Women made it clear that while he did not need to increasingly prominent role. As a result, UN (CEDAW) and Hague Convention on the Civil resort to the UNCRPD to resolve the issue, treaty monitoring bodies’ periodic reports on Aspects of International Child Abduction were he would have done so if required, noting the UK government’s performance in meeting that in terms of freedom from discrimination treaty obligations and published comments are under Article 14 of the European Convention significant documents for the courts as well as on Human Rights the UNCRPD ‘has the the legislature. potential to illuminate our approach to both discrimination and justification’. Unlike the European Convention on Human Rights and its incorporation through the Human Rights Act, the substantial majority of other human rights conventions remain unincorporated. An exception is the UN Journal of the LSNI 43 January-March 2017

The issue came to the fore once again in the UK SC 47 a challenge to the legality of a These developments make the findings Supreme Court in SG and others v Secretary legislative provision to automatically suspend of UN treaty monitoring bodies and their of State for Work and Pensions [2015] UK entitlement to Disability Living Allowance published General Comments of more than SC 16 - a challenge to the introduction of where a child has been in hospital for more academic interest to lawyers. In June 2016, the social security benefit cap and its impact than 12 weeks. The child’s best interests’ the UN Committee on the Rights of the Child on women in particular. A key argument in provision under Article 3(1) was again issued its concluding observations on the fifth this case was whether Article 3(1) of the UN scrutinised. The Supreme Court noted that periodic report of the United Kingdom and the Convention on the Rights of the Child (UNCRC) Lord Carnwath in R (SG) had described the Committee on Economic, Social and Cultural applied. Article 3(1) provides that in all UN Committee on the Rights of the Child’s Rights its sixth periodic report. Both reports actions concerning children the best interests General Comment No 14 analysis of a child’s pay particular attention to Northern Ireland of the child shall be a primary consideration. best interests as authoritative guidance and reflecting the active participation of the If the UNCRC was relevant, then the impact of that the failure to consider the impact of the Human Rights, and Children’s Commissions and the benefit cap on the private and family life provision as a breach of international law. local NGOs in giving evidence alongside the of a child living in a household affected by the The judgment recognised that ‘the decision UK government. It was regrettable therefore cap would need to be considered as part of of the majority in the SG case was not that that Northern Ireland officials did not attend Article 8 (the right to family and private life) international conventions were irrelevant to the evidence sessions. The impact of the and Article 14 (freedom from discrimination) the interpretation of Article 14 (freedom from concluding observations may become more far read with Article 1 protocol 1 (no undue discrimination) but, that the UN Convention on reaching than Whitehall as the courts continue interference with property rights). the Rights of the Child was irrelevant to the to grapple with the role of unincorporated justification of a difference in treatment visited international human rights treaties on A majority of the court found that upon women rather than children’ (para 43). domestic law. consideration of the primary interests of the The Supreme Court went on to unanimously child under the UNCRC had not been taken find that the automatic suspension of a child’s The Commission has a range of duties and into account by the Department of Work and DLA after 12 weeks in hospital was unlawful. responsibilities including contributing to the Pensions and was relevant to the issue of monitoring of international human rights justification of any discrimination. Lord Kerr Closer to home, international obligations and treaties in Northern Ireland and reporting on went considerably further arguing that Article their effect was one of the issues considered compliance to the United Nations and Council 3 of UNCRC was directly enforceable in UK by Mr Justice Horner in the Commission’s of Europe. domestic law (a conclusion no other colleague judicial review against the current law on was willing to support). The challenge termination in Northern Ireland and the issue For details of the Northern Ireland Human ultimately failed as a majority held that is likely to be revisited in the Court of Appeal Rights Commission’s submissions to the UN whether the UNCRC applied or not, the indirect judgment. Committee on the Rights of the Child and discrimination alleged was against women the UN Committee on Economic, Social and and not children and as a result, there was Cultural Rights go to the Commission’s website not a direct link between the UNCRC and the at www.nihrc.org particular discrimination under challenge. To access the periodic reports of the UN The UN Convention on the Rights of the Committee treaty bodies go to the Office of Child arose again in Mathieson v Secretary the High Commissioner for Human Rights at of State for Work and Pensions [2015] www.ohchr.org 44 Journal of the LSNI January-March 2017

1366 against the charters. Subsequently in Patrick Geoghegan (TCD) who focused on Daniel Magna Carta hiberniae a session chaired by James McGuire MRIA, Dr O’Connell and Magna Carta. 800 at Christ Church Ian Campbell (QUB) spoke of Magna Carta and Irish political theory 1541 - 1660. Dr Colum The concluding session, chaired by Sir Anthony Cathedral, Dublin Kenny (professor emeritus at DCU) spoke about Hart a former president of the Society, 25-26 November, 2016 Audley Mervyn in relation to the charter and addressed the effect of Magna Carta on the Dr Coleman Dennehy (UCD) examined how Irish Free State Constitution, Bunreacht na the right of ‘trial by peers’ affected the Irish hEireann and its position in the Statute Books A conference was organised by the Irish aristocracy on trial in Ireland as against England of Ireland and Northern Ireland. The speakers Legal History Society in conjunction with where the Irish peer Lord Maguire was tried as respectively were Dr Thomas Mohr of UCD, Dr Christ Church Cathedral, Dublin to celebrate a commoner and executed. Blathne Ruane SC, and John Larkin QC, Attorney the 800th anniversary of the sealing in General for Northern Ireland. This session November 1215 of a copy of Magna Carta Sir Donnell Deeny president of the Society, highlighted how the rights and principles which for transmission to Ireland. The venue was presided at the keynote session when the can be traced back to Magna Carta would be the Music Room of Christ Church Cathedral, address was by Professor Paul Brand of All Souls unrecognisable to those who negotiated the the archive of which contains a late 13th College, Oxford. Professor Brand demonstrated Charter at Runneymede 800 years ago. The century copy of Magna Carta which is on the relevance of Magna Carta in Ireland during conference closed with a lively discussion display in the Crypt. the period 1215 - 1320 but queried whether initiated by Judge Hart, on the current the copy transmitted to Ireland was the version relevance of the Charter, to which contributions The theme of the conference was Law and the known as Magna Carta Hiberniae contained in were made by the concluding panel and Ronan idea of liberty in Ireland: from Magna Carta to the Red Book of Exchequer destroyed in the Keane, Chief Justice of Ireland 2000-04. the present with the opening address by Dr Four Courts Fire of 1922. Professor Brand set Claire Breay of the British Library. She spoke the absence of reference to that document in The Lord Chief Justice of Northern Ireland, the about the issues involved in organising the the sources against the frequent reference to Right Hon Sir Declan Morgan, and the Hon Mrs Magna Carta exhibition which she curated the various English texts. In discussion he said Susan Denham, Chief Justice of Ireland, who are there in 2015, and brought together the that the concepts contained in Magna Carta patrons of the Society, attended. surviving four original copies of the charter. were not compatible with Brehon law and the There followed a paper by Dr Sean Duffy (TCD) rights set up in the charter were confined to The organising committee was chaired by outlining the political background to King John, the common law area. Ken Murphy, Director Robert Marshall, solicitor, currently an honorary Magna Carta and Ireland. General of the Law Society of Ireland proposed treasurer of the Society. The academic directors the vote of thanks to Professor Brand for his were Dr Peter Crooks, (TCD) and Dr Thomas After lunch in a session chaired by Dr Maebh address and congratulated the Society on its Mohr (UCD) with sponsorship by the Law Harding (University of Warwick) Dr Adrian initiative on organising the conference. Society of Ireland, Trinity College Dublin, and Empey spoke about the introduction of the Sir Anthony Hart. Courtesy of the institute of Common Law to Ireland following the Norman Dr Kenneth Milne chaired the 18th century Humanities UCD, in the new year a podcast conquest. Dr Peter Crooks (TCD) examined session of the conference on Saturday morning of the papers presented to the conference the text of Magna Carta Hiberniae to identify when the speakers were Professor James will be available on the websites of the UCD the differences with the great charter of 1215 Kelly (DCU) speaking about the politics of Humanities Institute and of the Society: and then considered the Statutes of Kilkenny political rights in 18th Century Ireland and Dr www.ilhs.eu .

Celebrating the 800th anniversary of Magna Carta Hiberniae at Christ Church Cathedral Dublin: from left Mr Justice Deeny, President of the Irish Legal History Society, with Professor Paul Brand, All Souls College Celebrating the 800th anniversary of Magna Carta Hiberniae at Christ Oxford who delivered the key note address entitled Magna Carta in Church Cathedral Dublin: Sir Anthony Hart (on right) a former president Ireland 1215 -1320; Robert Marshall Solicitor, joint honorary Treasurer of the History Society who chaired the final session of the conference of the Society who chaired the conference organising committee, and with from left: John Larkin QC Attorney General for Northern Ireland; John Larkin QC Attorney General for Northern Ireland who spoke about Dr Thomas Mohr (UCD ) one of the academic directors, and Dr Blathne Magna Carta and the Irish Statute Books. (Photo: Lynn Glanville) Ruane SC all of whom addressed the final session. Journal of the LSNI 45 January-March 2017

Supreme Court decisions illustrate the complexity of compensation claims for victims of modern slavery

that immigration status was not to be ruling. While the decision is not impervious equated with nationality for the purpose of to criticism3, it does confirm that some the Race Relations and Equality Acts.2 The race discrimination claims involving labour Court of Appeal held that “discrimination on exploitation may be difficult to prove and a particular ground will only be treated as certainly require very careful pleading.4 discrimination on the grounds of a protected characteristic if that ground and the protected Race discrimination is a potentially important characteristic exactly correspond.” avenue of redress for migrant workers who have been exploited as it allows a worker to It was argued on appeal to the Supreme be compensated for the injury to feelings s/he Court that immigration status is a function of has suffered as a result of the discrimination. nationality and indissociable from it and that Only a discrimination claim before an Industrial therefore Ms Taiwo and Ms Onu had suffered Tribunal affords an injury to feelings remedy. Caroline Maguire, employment legal adviser direct discrimination on grounds of nationality. In the above cases, although it was recognised at Law Centre (NI), reviews two recent It was conceded that the facts of the cases did that Ms Taiwo and Ms Onu had suffered Supreme Court decisions - Taiwo v Olaigbe not support a claim for indirect discrimination. “grievous harms”, no compensation for the and another, and Patel v Mirza - both mistreatment per se could be awarded. Only relevant for those advising victims of forced The Supreme Court decision compensation arising from loss of wages and labour and labour exploitation. other economic loss was payable. The Supreme Court found that both employees In June 2016 the Supreme Court handed down “… were treated disgracefully, in a way which The Industrial Tribunal is intended to be an its decision in the case of Taiwo v Olaigbe and employees who did not share their vulnerable accessible and affordable route for parties another.1 This judgement confirms the need immigration status would not have been to achieve justice in employment disputes. for a broader remit for employment tribunals treated”. However, the Court dismissed both Employment judges and panel members are to compensate victims of modern slavery. appeals and held that Ms Taiwo and Ms Onu experts in the field of employment relations had not suffered race discrimination because and employment law. Therefore, the Tribunal The cases the reason for their abuse had been their should be the ideal forum to hear claims vulnerability as a particular kind of migrant involving modern slavery. However, this The joined appeals concerned the cases of two worker and not nationality. decision highlights the difficulty workers can migrant domestic workers, Ms Taiwo and Ms face in recovering just compensation for their Onu, who suffered severe mistreatment by In both cases, the employees were held to exploitation from an Industrial Tribunal. Lady their respective employers. be particularly vulnerable because they were Hale recognised this unsatisfactory situation in on visas that made them dependent on their her final comments when she stated: Ms Taiwo was a Nigerian national who was employers for a continued right to live and lawfully brought to the UK by her employers work in the UK. The Court held that other “Parliament may well wish to address its on a migrant domestic worker’s visa. On non-British nationals who had the right to mind to whether the remedy provided by arrival her employer took her passport from work and live in the UK [independent of any section 8 of the Modern Slavery Act 2015 her. She was required to work long underpaid employer] would not have been treated as is too restrictive in its scope and whether hours was underfed and subjected to physical badly as they were. Thus the Court held that an employment tribunal should have and mental abuse by her employers. discrimination on grounds of immigration jurisdiction to grant some recompense for the status does not amount to direct discrimination ill-treatment meted out to workers such as Ms Onu was also brought by her employers on grounds of nationality under the 1976 or these…” 5 from Nigeria to work for them on a migrant 2010 Acts. The Court was careful to clarify domestic worker’s visa. She too had her that while no indirect discrimination argument The Law Centre and other bodies representing passport taken off her on arrival, worked long existed in the present case, it should not be workers exploited through modern slavery6 hours with low pay and was threatened and ruled out in other cases involving exploitation are concerned that such workers are still not abused by her employers. of migrant workers. obtaining adequate compensation for the mistreatment they endure.7 Both had successfully brought claims to the The need to provide meaningful redress Employment Tribunal for breaches of the for victims Patel v Mirza National Minimum Wage Act 1998 and the Working Time Regulations 1998. However, Many practitioners who represent workers The case of Patel v Mirza8 is a world away both Appellants had ultimately failed in exploited through modern slavery will from the sad background to the Taiwo v claims for race discrimination on the grounds be disappointed but not surprised by this Olaigbe cases but it is, without doubt, a 46 Journal of the LSNI January-March 2017

more significant decision as the Supreme In assessing whether the integrity of the legal 1 [2016] UKSC 31: www.supremecourt.uk/ Court has rewritten the law on illegality of system would be harmed Lord Toulson went cases/uksc-2014-0105.html contract. Illegality of contract has, to date, on to say: 2 Part of Ms Taiwo’s claim fell under the been a significant barrier to justice for victims Race Relations Act 1976 rather than the of slavery where they have been working “… it is necessary a) to consider the Equality Act 2010 but the Supreme Court illegally (illegality most frequently arising purpose of the prohibition which has been held that for the purposes of the case it through breach of immigration rules). transgressed and whether that purpose will made no material difference. 3 be enhanced by denial of the claim, b) to See in particular Rubenstein in IRLR June 2014 commenting on the Court of Appeal’s Mr Patel transferred £620,000 to Mr Mirza consider any other relevant public policy on decision in the cases. His comment that with the intention that Mr Mirza place which the denial of the claim may have an the Court of Appeal decision took no impact and c) to consider whether denial bets on a bank’s share price in breach of account of discrimination against a sub- of the claim would be a proportionate insider trading rules. Mr Mirza expected to group of a protected characteristic applies response to the illegality, bearing in mind receive advance inside information prior to equally to the Supreme Court’s ruling. that punishment is a matter for the criminal a government announcement that would 4 In both Taiwo and Onu the exploitation affect the bank’s share price. However, the courts” involved a sole individual. Where a group bet never actually took place because the of workers of the same nationality (for government announcement did not happen. Impact on access to justice for victims of example) are exploited, there may be Nevertheless, the agreement was illegal as modern slavery stronger evidence that the exploitation a conspiracy to commit an offence under was on racial grounds. section 52 of the Criminal Justice Act 1993. It would be premature to say that the doctrine 5 Section 8 of the Modern Slavery Act 2015 Mr Mirza did not return the money to Mr Patel of illegality is no longer a potential bar to requires a court to consider making a and the latter sued Mr Mirza for breach of access to justice for victims of trafficking slavery and trafficking reparation order contract and restitution for unjust enrichment. and labour exploitation wishing to pursue a against a person convicted of an offence contractual claim against their exploiter. Much of slavery or human trafficking (or related offence). The equivalent provision in The High Court held that Mr Patel’s claim will depend on how Lord Toulson’s test is Northern Ireland is under section 10 of was unenforceable and drew on the well- interpreted by the courts and what arguments the Human Trafficking and Exploitation established caselaw that a court will not representatives can bring to demonstrate (Criminal Justice and Support for Victims) enforce a contractual claim where the that the integrity of the legal system will be enhanced by affording justice to victims of Act (Northern Ireland) 2015. claimant has to rely on his own illegal 6 trafficking and exploitation.11 Our experience See Access to Compensation for Victims of conduct to bring that claim: the ‘reliance’ Human Trafficking July 2016, FLEX: www. 10 indicates that there are compelling arguments principle. The Court of Appeal upheld Mr labourexploitation.org/sites/default/files/ which would weigh strongly in favour of the Patel’s appeal on the basis that while his publications/DWP-Compensation-F.pdf illegality doctrine not being applied in such claim did fall foul of the reliance principle, 7 See Law Centre (NI) briefing Remedies for cases. Some key arguments would be: he fell within the locus poenitentiae Victims of Trafficking (Labour Exploitation): exception (ie he had voluntarily withdrawn www.lawcentreni.org/policy/policy- • If through the doctrine of illegality an himself from the illegal agreement before briefings.html exploiter were, for example, to escape it was performed). One judge agreed with 8 [2016] UKSC 42 allowing the appeal but held that it should investigation for failure to pay the 10 Holman v Johnson (1775) 1 Cowp 341, be allowed for different reasons: the law National Minimum Wage to a person Tinsley v Milligan [1994] AC 340 and Hall prohibiting insider trading would not be trafficked into Northern Ireland for forced v Woolston Hall Leisure Ltd [2001]1 WLR stultified by allowing the claim and it would labour, the exploiter may retain the profit 225. 12 be disproportionate to disallow the claim s/he has made from the exploitation. 11 It should be noted that while the majority (bearing in mind that this would mean one This outcome is harmful to the integrity of of the nine judge panel supported Lord of the parties to the illegal transaction would the legal system. Toulson’s focus on public policy, significant enjoy a £620,000 windfall). concerns were expressed by the minority • While there are public policy arguments judges. At paragraph 192 Lord Mance for ensuring immigration rules are warned that replacing the previous rules Mr Mirza appealed to the Supreme Court observed, there are also compelling public on illegality “…wholesale with an open which dismissed the appeal and held that Mr policy reasons for upholding the rights of and unsettled range of factors…” might Patel was entitled to restitution of the money. victims of human trafficking and labour “…prove more problematic then the Giving lead judgment in the decision, Lord exploitation and for ensuring exploiters do troubled doctrine of ex turpi causa” itself.” Toulson conducted a thorough review on the 12  not profit from their crimes. Criminal proceedings may result in the history of the common law of illegality in proceeds of crime being confiscated but various jurisdictions and concluded that: • It is not proportionate to deny a victim this is dependent on a prosecution being successful. of trafficking payment of her/his wages 13 The Law Centre recently represented “The essential rationale of the illegality where s/he has been forced to work a fisherman who was trafficked into doctrine is that it would be contrary to the weeks on end without pay on the basis Northern Ireland on a visa which public interest to enforce a claim if to do so that s/he was working in breach of permitted him to join a ship in England. would be harmful to the integrity of the legal immigration rules (particularly where the Our client in fact was brought to Northern system (or possibly certain aspects of public breach of immigration rules has occurred Ireland but did not this until some weeks morality…). due to the employer)13. after his arrival. Journal of the LSNI 47 January-March 2017

Introducing the Independent Advice, Support and Mediation Service (Community Care) Welfare The Law Centre’s Independent Advice, Support and Mediation Service Changes (Community Care) runs a specialist advice line and representation service.

Community care legal advisers Patricia Southern and Caroline Cooley are experts in health and Helpline social care law.

The Welfare Reform Advice Services Consortium, made up of Citizens Advice, Advice NI and Law Centre (NI), has been set up to provide help and support to anyone affected by changes to the welfare system.

The free, independent Welfare Changes Helpline is available on 0808 802 0020, 9am to 5pm, Monday to Friday. Face-to- face support is also available across the 11 council areas in local Citizens Advice and Advice NI offices. Specialist legal Caroline Cooley. Patricia Southern. advice is available from Law Centre (NI) who can arrange access to specialist They provide advice and assistance to adults who have needs due to physical or mental legal services as required. disability, ill health or age, adults with sensory disabilities and adults whose needs arise because of their role as carer. These services are free for anyone who needs help or advice relating to any of They can help in cases which raise issues concerning the legal responsibilities of health and the changes to the welfare system. social care trusts and other public bodies in the provision of health and social care. They advise in all areas of community care, including: Solicitors are welcome to contact the

- needs assessments helpline on behalf of clients with welfare related issues, or to refer clients - provision of services directly. - benefits and community care - grants for home improvements for people with disabilities - services for young adults transitioning from Children’s Services - financing residential and nursing home care - carer’s assessments - capacity and decision making in social care - human rights issues and social care

The majority of cases are resolved through negotiation with HSC Trusts and service providers.

Where necessary, the Independent Advice, Support and Mediation Service (Community Care) initiates judicial review proceedings in the High Court to clarify interpretation of health and social services law and/ or to challenge decisions made by public bodies or HSC Trusts, and can pursue appeals to the Court of Appeal and beyond.

Service users, carers, advisers, health and social care staff can contact the Independent Advice, Support and Mediation Service (Community Care) for help through the advice line.

Advice line 028 9024 4401 Monday to Friday, 9am to 1pm and 2pm to 5pm Out of hours voicemail service available 48 Journal of the LSNI January-March 2017

Housing (Amendment) Act (NI) 2016 – What does this mean for antisocial behaviour in possession proceedings?

this article will look at ASB in such as support from other if the information was disclosed a housing context in NI and bodies can lead to the successful for the purposes of enabling the determine the impetus for resolution of a situation involving landlord to decide whether or not the change in the law, the ASB and greater compliance with to withhold consent to a mutual development of the law in Article 8. exchange or allow a tenant to relation to information sharing exercise their right to buy their and ASB by showing both the Statutory guidance, both in home. In addition, Section 13 Sarah Corrigan, Housing Advisor previous and new legislative NI and in the rest of the UK allowed any person to disclose with Housing Rights discusses position, and will also highlight encourage a multiagency “relevant information” to NIHE the New Housing (Amendment) further points to consider. approach to help best tackle if the information was disclosed Act (NI) 2016. ASB; unfortunately however, NI’s for the purpose of enabling NIHE ASB in a housing context in NI legislative framework prior to the to decide whether or not to Introduction – determining the impetus for introduction of the 2016 Act, did treat someone as ineligible for change not allow for the mechanisms to assistance for allocation of social Gaining Royal Assent on 9 July be in place to fully implement housing and/or for homeless 2016, the Housing (Amendment) The issue of ASB is a matter such an approach. This barrier to assistance. By virtue of Section Act (NI) 2016 (2016 Act) is the that concerns everyone in the the effective management of ASB 13, “relevant information” could most recent piece of housing community; it can seriously was raised by several stakeholders also be disclosed to RHAs for legislation to come into force in damage the quality of life for during the consultation phase the purpose of enabling the Northern Ireland (NI). many people through the fear of of this new Act; notably, it RHA to decide whether or not to crime and the long-term effects was reported that a number of allocate housing accommodation This concise, potentially very of victimisation. According to the consultees highlighted the need to any person. Section 13(4)(b) effective and enabling piece of NI Statistics and Research Agency, for improved information sharing defines “relevant information” legislation facilitates the sharing the number of recorded incidents in order to tackle ASB. While NIHE as information relating to any of information in relation to of ASB in NI from Feb 2015 – Feb did enjoy information sharing order or application mentioned in antisocial behaviour (ASB) and 2016 was 59,354. This figure in limited circumstances, RHAs Ground 2A or 2B in Schedule 3A empty homes, and enables represents a concerning level were extremely restricted. RHAs to the Housing (NI) Order 1983, the Northern Ireland Housing of ASB within a relatively small currently preside over a growing eg an injunction against breach of Executive (NIHE) to register a jurisdiction. share of the social rented sector, tenancy agreement. statutory charge in respect of therefore any change in the law grants by way of loan. ASB in a housing context is an needed to ensure RHAs would While the previous legislative extremely complex and dynamic be given the same powers in position did help social landlords Arguably, the most crucial problem. Social landlords in NI respect of information sharing, manage their stock ie appropriate provision of this recent Act is have a statutory obligation to allowing them to adequately sanctions such as applying contained within Section 2; respect, protect and promote manage tenancies and promote limitations on tenant’s rights information sharing in order to Article 8 of the European sustainable communities. such as the right to exchange, tackle ASB. For the first time, Convention on Human Rights: and made social landlords aware this section affords NIHE and “Everyone has the right to respect The development of the law in of potential difficulties and Registered Housing Associations for his private and family life, his relation to information sharing helped them identify trends of (RHAs) the right to seek home and his correspondence”, and ASB – from the previous ASB in certain areas, Section 13 information in order to take this right applies to both the legislative position to the 2016 had a number of limitations. possession action against those alleged perpetrator(s) and the Act While Section 13 allowed social involved in ASB. This provision other tenants/community, and landlords to deal with the dramatically changes the way in therefore this can be an extremely The previous legislative position consequences of ASB, it did not which social landlords, tenants, delicate balance to perfect for the regarding information sharing provide all social landlords with third parties (eg local district social landlord. in respect of ASB was found the tools to try to prevent ASB councils), solicitors, advisers and in Section 13 of Housing at an early stage. In addition, individuals can deal with ASB Evidence has shown that rapid (Amendment) Act (NI) 2011. the lack of information sharing possession cases. intervention, careful analysis during the investigation stage of the ASB and proportionate Section 13 allowed any person to of ASB would often act as an Recognising the importance of action, coupled with a range of disclose “relevant information” to incentive for rapid legal action this legislative development, complementary forms of action a landlord under a secure tenancy rather than pursuing alternative Journal of the LSNI 49 January-March 2017

measures. While NIHE were able to set up some information sharing protocols to circumvent this barrier, RHAs continued to face obstacles to effectively dealing with ASB.

The introduction of the 2016 Act aims to remove these barriers; the objective of this Act is to improve the ability of relevant agencies to properly investigate ASB. Therefore, Section 2 provides that a “person” may disclose certain information about ASB to NIHE or a RHA where such information is required for certain housing management purposes. “Purposes” has been widened and now includes applying for injunctions on grounds of ASB, applying for possession orders on such grounds, withholding consent to the mutual exchange of secure tenancies and determining that a person is not eligible for accommodation on the basis of their unacceptable behaviour. The 2016 Act repeals Section 13 of the 2011 Act.

It is anticipated that this new Act will aid social landlords in their duty to manage ASB.

Points to consider

During the legislative process, potential data protection and human rights concerns were raised, and the Bill was considered in light of these. While careful consideration has been given to the 2016 Act, like any new law it is possible that an issue may arise during the application of this Act. Importantly, guidance is currently being issued for this Act, to outline appropriate application. It is important to note that this legislation and the information sharing procedures do not apply to the private rented sector. 50 Journal of the LSNI January-March 2017

BSA annual Golf Competition The annual BSA Golf Competition was held at the beautiful inland course of Malone Golf Club. With a record attendance and with great prizes up for grabs, the scores did not disappoint.

With the temperatures high and a gentle breeze, the competitors dealt with the conditions well. Following an enjoyable day of golf everyone headed to Overall winner Peter McGettrick with Gareth Magee, BSA the 19th hole to relax, enjoy some good food and a well-deserved drink. The Committee and Judith Brannigan of sponsor, Libra Events. scoring was exceptional - even Rory McIlroy would have been impressed. The honour of the day and the overall winner, with 42 points, (a superb up and down out of the bunker at 18) was Peter McGettrick. Runner-up was Joe Moore with a fine score of 41 points which was due to a great display of putting that would have been worthy of Jordan Speith at his best.

The winning team consisted of John Gordon, Dr Conor McHugh, Dominic McHugh and Kevin Toner. At hole 15, with a wonderful six iron to avoid water on the left, Eoghan McKenna lifted the prize for Nearest the Pin.

Other winners were:

Peter Houston, Danske Bank - Best Gross prize Kevin Toner - Best Back Nine Glen Young, Abacus Recruitment – Putting prize Best Gross: Peter Houston, Danske Bank, accepts Best Anne-Marie McVeigh - Ladies’ prize Gross prize from Gareth Magee, BSA Committee. Neil McGivern – Visitors’ prize

A huge thanks must go to our event sponsors, Abacus Recruitment and Libra Events. The day also could not have happened without the prize sponsors, namely, AM: PM, Hilton Hotel, Danske Bank, Quarter Accountants and Down Royal. A further thanks to the greens staff at Malone Golf Club who had the course in top notch condition. A word of thanks to the Malone catering and bar staff for looking after everyone so well.

BSA would like to thank everyone for their support and participation. Special thanks must go to Libra Events for organising the event and to Gareth Magee and Ciaran Maguire of the BSA Committee. We look forward to seeing everyone next year for the next course challenge. Nearest the Pin: Gareth Magee, BSA Committee, presents Eoghan McKenna with his prize.

Team Prize: Dr Conor McHugh, John Gordon, Gareth Magee, BSA Committee, Dominic McHugh and Kevin Toner Journal of the LSNI 51 January-March 2017

2013 and O.126 r.21 of the Applicant is the mother of a child of the child’s application to a From the RCJ that both proceedings are who attended an adventure differently constituted panel of proceedings in which a closed centre as a Year 8 pupil and the Exceptional Circumstances High Court material application may be was subject to sexual assault by Body. - procedural challenge made to the court. - plaintiffs fellow pupils. - applicant seeks on the decision of the Panel. - and Court allege that incendiary devices to quash the ongoing decision of whether the Panel erred in law in were planted at the instigation the respondent not to convene its interpretation of the scheme of Appeal – of the police by an agent of the a meeting of the Board of and Regulations. - HELD that police. - whether the closed Governors in order to carry out the decision of the Exceptional abstracts material procedure would be a comprehensive review of its Circumstances Body was in the best interests of the fair policies, practices and decisions procedurally unfair in that it took of some and effective administration of in respect of ongoing schooling into account material of which the justice.- consideration of the of the applicant and perpetrators applicant was unaware and had recent case statutory provisions. - discretion. - in light of the need to make the no opportunity to challenge or HELD that declarations made that welfare of the victim paramount comment on law both proceedings are proceedings in order to prevent ongoing HIGH COURT in which a closed material human rights breaches. - applicant 9 NOVEMBER 2016 The full text of these decisions is application may be made to the is unhappy about the failure of COLTON J available on the Libero Database court the school authorities to suspend in the member’s section of the HIGH COURT and to consider the expulsion FAMILY LAW Law Society Website at 28 JUNE 2016 of pupils who were involved www.lawsoc-ni.org STEPHENS J in the assault and is unhappy VS V GA about the school suspending any Application by the plaintiff, disciplinary action pending a PSNI ADMINISTRATION OF JUSTICE CRIMINAL LAW who is the Indonesian mother investigation. - application of the of the child, for the return of scheme for the suspension and DPP V PATRICK STEPHEN R V ALBERT ARMSTRONG the child BA to Australia under expulsion of pupils. - whether, DOUGLAS Sentencing. - murder. - life the provisions of a.12 Hague in deciding not to invoke a Appeal by case stated. - whether imprisonment. - tariff. - minimum Convention as enacted by the suspension, the school has acted the Judge was correct in law in term before eligible for release. Child Abduction and Custody Act irrationally. - HELD that the school amending a complaint of taking - basis of plea. - HELD minimum 1985. - defendant is a Northern has not acted illegally in terms of and driving away, contrary to term of 14 years imposed Irish national who previously an alleged failure to implement a.172 Road Traffic (NI) Order 1981 CROWN COURT lived with the plaintiff in the CCMS scheme in relation to to one of vehicle interference 15 JULY 2016 Australia. - whether wrongful suspensions and expulsions and contrary to a. 8 Criminal Attempts TREACY J removal and wrongful detention. application dismissed and Conspiracy (NI) Order 1981 - habitual residence. - whether HIGH COURT by virtue of a. 155 Magistrates’ R V CONNOR HUGHES acquiescence. - intention of the 6 OCTOBER 2016 Courts (NI) Order 1981. - Sentencing. - defendant has parties. - HELD that wrongful COLTON J provisions on defective and pleaded guilty to one count of removal is not established and amending summonses. - whether collecting information likely to there has been a wrongful IN THE MATTER OF AN the amendment is necessary be of use to terrorists contrary to retention. - child’s habitual APPLICATION BY SCHOOL X FOR for the purpose of raising real s. 58(1)(b) Terrorism Act 2000. residence has not changed from LEAVE TO APPLY FOR JUDICIAL questions at issue. - the same or - defendant already serving a Australia. - return order made REVIEW substantially the same facts. - a prison sentence for possession HIGH COURT Admission to secondary close connection between the of explosives with intent to 7 OCTOBER 2016 education. - whether exceptional offences. - justice of the case. - endanger life or cause serious KEEGAN J circumstances which require the HELD that the District Judge was injury to property. - HELD that admission of the child to a school. correct, one Court of Appeal Judge the defendant sentenced to a - whether the circumstances are MEDICINE dissenting determinate custodial sentence personal to the child and whether COURT OF APPEAL of two years to run consecutively they require admission to only IN THE MATTER OF NS (INHERENT 7 MARCH 2016 with the sentenced currently a particular school. - application JURISDICTION: PATIENT: LIBERTY: GILLEN LJ, WEATHERUP LJ, WEIR LJ being served for an order of certiorari to quash MEDICAL TREATMENT) CROWN COURT the decision of the Exceptional Applicant (NS) is an elderly lady SIMONE KATHLEEN HIGGINS AND 16 SEPTEMBER 2016 Circumstances Body whereby being represented by the Official ANTHONY LEE V CHIEF CONSTABLE TREACY J the exceptional circumstances Solicitor (OS). - whether NS should OF THE POLICE SERVICE OF body decided that the applicants be discharged to a residential NORTHERN IRELAND EDUCATION should admit the child into Year facility or into the care of her son Plaintiffs have commenced 8; a declaration that the said (MS) with a health package - NS separate actions against the IN THE MATTER OF AN decision was unlawful, ultra vires, has a range of health issues but PSNI for declarations pursuant APPLICATION BY EM TO APPLY void and of no force or effect; an no longer requires to be kept to s. 6 Justice and Security Act FOR JUDICIAL REVIEW order remitting the consideration in hospital. - whether or not 52 Journal of the LSNI January-March 2017

NS has the capacity to provide no tenancy agreement with the legally valid consent to the Company Library Update – proposed care and treatment. HIGH COURT Forum Shopping/ COMI Shifting - whether the proposed care 8 NOVEMBER 2016 and treatment is necessary and HORNER in Insolvency Proceedings in her best interests. - whether the intervention is necessary The practice of choosing a specific jurisdiction favourable to and proportionate pursuant to SOCIAL MEDIA an anticipated restructuring/insolvency, usually by moving a.5 ECHR. - HELD that NS lacks COMI (centre of main interests). capacity and that MS is not able AY, A MINOR ACTING BY FY to provide for the needs of NS at AS NEXT FRIEND V FACEBOOK Legislation home and should be moved to (IRELAND) LIMITED AND OTHERS residential care Plaintiff had sexualised and Companies Act 2006 HIGH COURT indecent images of herself Part 26 – Arrangements and Reconstructions 14 OCTOBER 2016 posted on Facebook by a third http://www.legislation.gov.uk/ukpga/2006/46/introduction KEEGAN J party. - images were taken down by Facebook but thereafter Council Regulation (EC) 1346/2000 on insolvency intermittently subsequently proceedings (Insolvency Regulation). REAL PROPERTY published on other pages. - The Insolvency Regulation came into force on 31 May 2002. It is proceedings were issued in directly applicable (having automatic legal effect and prevailing JULIAN SMITH AND ANDREW which the plaintiff claims that over domestic legislation) in all member states in the European HUGHES V DAVID BLACK AND Facebook is liable on the basis of Union excluding Denmark. The Insolvency Regulation introduced PERSONS UNKNOWN breaches of the Data Protection conflicts of law rules for insolvency proceedings concerning Plaintiff’s claim to be the Act 1998, on the basis of the tort debtors based in the EU with operations in more than one Receivers appointed under a of misuse of private information member state, giving particular prominence to insolvency mortgage between Capital Home and negligence and on the proceedings commenced in the member state in which a debtor Loans Limited (CHLL) and Places basis of breach of the Protection has its centre of main interests (COMI). 4 You Limited (the Company). from Harassment (NI) Order http://eur-lex.europa.eu/legal-content/EN/TXT/ - trespass action. - which party 1997. - defendants deny liability HTML/?uri=CELEX:32000R1346&rid=1 is entitled to the possession and contend that the action be of the property. - whether the struck out on the grounds that it Recast Insolvency Regulation 2015/848 defendant had a written tenancy discloses no reasonable cause of The Insolvency Regulation is to be replaced by Regulation agreement with the Company action, is frivolous or vexatious (EU) 2015/848 of the European Parliament and of the Council for the property which predated and an abuse of the process of on insolvency proceedings (recast). The Recast Insolvency any purported appointment the Court. - whether Facebook Regulation 2015 will apply to insolvency proceedings of receivers. - whether the has an unanswerable defence commencing on or after 26 June 2017. plaintiffs have necessary locus since it expeditiously removed the http://eur-lex.europa.eu/legal-content/EN/TXT/ standi and title to institute the image each time it was notified. - HTML/?uri=CELEX:32015R0848&rid=1 proceedings as receivers to eject whether the Electronic Commerce the defendant from the property. (EC Directive) Regulations 2002 Uncitral Model law on cross border insolvency (1997) - personal litigants. - HELD that apply. - HELD that there are The Model Law is designed to assist States to equip their the defendant did not have a insufficient grounds to strike insolvency laws with a modern legal framework to more written tenancy in respect of the out the plaintiff’s claim on the effectively address cross-border insolvency proceedings property and the plaintiffs do not basis of a. 15 of the E-Commerce concerning debtors experiencing severe financial distress or have the necessary title to eject Directive and also insufficient insolvency. http://www.uncitral.org/uncitral/en/uncitral_texts/ the defendant from the premises grounds to strike out the plaintiff’s insolvency/1997Model.html however CHLL or such receivers statement of claim on the basis as they can prove to have been of r.19 Electronic Commerce (EC NI Caselaw validly appointed have the right Directive) Regulations 2002 to seek summary possession of HIGH COURT In the matter of Maurice Muldoon - petitioning debtor the property should they seek 9 SEPTEMBER 2016 Cross-border insolvency case in which the petitioner seeks a to do so as the defendant has STEPHENS J bankruptcy order in Northern Ireland on foot of his own petition. - whether the High Court in Northern Ireland has international jurisdiction to make a bankruptcy order if it is satisfied that the centre of the petitioner’s main interests (COMI) lies in its jurisdiction. - whether the COMI lies in Northern Ireland by virtue of the petitioner moving his habitual residence from the Republic of Ireland to Northern Ireland. - where the debtor conducts the administration of his interests on a regular basis. - whether that place is transparent and ascertainable by third Journal of the LSNI 53 January-March 2017

parties. - whether grounds to suspect forum English Caselaw Trustees of the Olympic Airlines SA Pension shopping. - HELD that the petitioner is not and Life Assurance Scheme v Olympic habitually resident in Northern Ireland and his Re Eurofood IFSC Ltd Airlines SA COMI is not in the jurisdiction of the Northern Company – liquidation – insolvency – centre Insolvency – Petition – Foreign winding- Ireland High Court of main interests – wholly owned subsidiary up proceedings – Cross-border insolvency [2016] NIMaster 5 13 May 2016 – “Head office test” – where insolvency proceedings – Greek airline company carrying proceedings opened – main insolvency on business in England – Company being put Irish Bank Resolution Corporation Limited proceedings –conflict of laws – recognition of into liquidation by Greek court – Trustees of v John Ignatius Quinn also known as Sean foreign judgments – Public policy – right to fair UK staff pension scheme applying to wind up Quinn hearing company – Judge granting petition – Court of Application to annul and rescind bankruptcy [2006] IESC 41 Appeal overruling decision – Whether company order on the basis that the court lacked the having ‘establishment’ in England – Meaning jurisdiction to open main proceedings under Re BRAC Rent-A-Car International Inc of ‘economic activity’ – Whether jurisdiction a. 3(1) of EC Regulation 1346/2000 on Company with its registered office in the to wind up company – Council Regulation (EC) Insolvency Proceedings or on the basis that US. - no employees in the US and all its 1346/2000, art 2(h) the ex parte order had been obtained through business operations were run from England. [2015] 3 All ER 694, [2015] 1 WLR 2399, misrepresentation and/or non-disclosure. - administration was commenced in England - centre of main interest of the defendant. - in order for BRAC to obtain the benefit of Rubin and another v Eurofinance SA and whether the head office of a corporate body the moratorium against a judgment entered others (Picard and others intervening) is its main centre of interest. - where the against it in Italy. - whether England was In re New Cap Reinsurance Corpn Ltd (in debtor’s centre of main interests, where he the proper jurisdiction for BRAC’s insolvency liquidation)New Cap Reinsurance Corpn Ltd conducted the administration of his interests proceeding on the basis that its COMI appeared and another v Grant and others on a regular basis before the presentation of to be in England, even though it was a Insolvency — Liquidation — Foreign company the petition for bankruptcy, was. - whether Delaware company. - court ultimately found — Liquidators of foreign companies seeking that centre of administration was ascertainable that its COMI was in England and, on that basis, to enforce in England judgments of United by third parties. - HELD that the centre of the the English administration should be permitted States and Australian courts to recover moneys defendant’s main interest is the Republic of to continue. transferred to defendants before liquidation Ireland and that the defendant had failed to [2003] EWHC 128 (Ch). — Defendants claiming not to have been disclose relevant facts. - bankruptcy order present in or submitted to jurisdiction of foreign annulled Re Stanford International Bank courts — Whether judgments in personam — [2012] NICh 1 10 January 2012 Insolvency – Company – Cross-border Whether ordinary rules for enforcing judgments insolvency – Company incorporated in Antigua in personam inapplicable to bankruptcy In the matter of Latlorcan Developments and Barbuda – Company wound up – Receiver proceedings — Whether judgments enforceable Ltd (in administration) and in the matter appointed by United States court – Liquidators at common law — Whether alternative method of WL Dolan Construction Limited (in appointed by Antiguan court – Liquidators and of enforcement through international assistance administration) John J Cavanagh v William receiver applying for recognition in United provisions of Model Law on Cross-Border John Dolan Kingdom – Serious Fraud Office successfully Insolvency — Statutory provisions allowing Applicant is the administrator of Latlorcan applying without notice for restraint order English court to “assist” Australian court in Developments Ltd and an experienced against company – Whether US receivership insolvency matter and for registration and chartered accountant and insolvency foreign main proceeding – Whether Antiguan enforcement of Australian judgment in “civil or practitioner. - Latlorcan company was liquidation foreign main proceeding – Meaning commercial” matter — Whether either provision principally concerned with the ownership of of ‘centre of main interests’ – Whether restraint allowing English court to enforce Australian property whilst Dolan Construction built houses order should be set aside judgment against defendants — Foreign on it. - Ulster Bank had 3 mortgages relating [2010] EWCA Civ 137 Judgments (Reciprocal Enforcement) Act 1933 to lands owned by Latlorcan and was indebted (23 & 24 Geo 5, c 13), s 6 — Insolvency Act to 12 million euros when the administrator Re Codere Finance (UK) Ltd 1986 (c 45), s 426(4) — Reciprocal Enforcement was appointed. - administrator found a Company – Scheme of arrangement. The of Foreign Judgments (Australia) Order 1994 (SI buyer for some of the properties. - whether Companies Court, on Codere Finance (UK) Ltd’s 1994/1901), art 4(a) — Cross-Border Insolvency the administrator was validly appointed. - application for an order sanctioning a scheme Regulations 2006 (SI 2006/1030), Sch 1, art 21 administrator seeks declaration that he was of arrangement, held that both the formal [2013] 1 AC 236, [2013] 1 All ER 521 lawfully and validly appointed as administrator requirements for sanctioning the scheme and may lawfully sell lands to Monaghan had been met and, in all the circumstances, All above cases are available from the library. County Council. - whether the centre of main it was appropriate to exercise the discretion interest is in ROI or NI (COMI). - HELD that the to sanction the scheme. In the circumstances, Articles declaration sought be refused and the matter it could not be seen that the fact that the returned for further hearing on all the facts company had been acquired only recently, What now for administrations and schemes? [2015] NICh 14 15 June 2015 and with a view to invoking the scheme The Brexit fall-out (as a result of the UK’s exit jurisdiction, should cause the court, in the from the EU, unless otherwise agreed, the UK exercise of its discretion, to decline to sanction will cease to be bound by and benefit from Available via Libero on the Law Society the scheme. the EC Regulation on Insolvency Proceedings website. [2015] EWHC 3778 (Ch) No 1346/2000 (‘EIR’). This will have material 54 Journal of the LSNI January-March 2017

disadvantages for companies in administration under the Insolvency Act 1986 (UK) that have assets and/or New Books operations in EU member states) (2016) 5 CRI 174 in the Library

Brexit: what next for cross-border restructurings and • Silverman, F. Conveyancing handbook. 23rd ed. insolvencies? The Law Society. 2016. Although the referendum resulted in a vote to • Ormerod, D. Blackstone’s criminal practice 2017. 27th ed. leave the EU, the exit model and the continuing Oxford University Press. 2016. arrangements between the UK and the EU, including • Woodroffe,G. Woodroffe & Lowe consumer law and practice. 10th ed. the impact on the cross-border restructuring and Sweet & Maxwell. 2016 insolvency landscape, remains uncertain • Luba,J. Defending possession proceedings. 8th ed. LAG. 2016. (2016) 4 CRI 149 • Richardson, P. J. Archbold: Criminal pleading, evidence and practice. 2017. COMI and get it: international approaches to cross- Sweet & Maxwell. 2016. border insolvencies (discusses at length COMI and • Shindler, G. Aldridge: Powers of attorney. 11th ed. Sweet & Maxwell. 2016. its implications for companies, highlighting certain • Clarke, J. Redgrave’s health and safety. 9th ed. LexisNexis. 2016. cases) • Owen, L. Clark’s publishing agreements: a book of precedents. 9th ed. Moller et al: (2015) 6 CRI 223 Bloomsbury. 2013 Update: Recast EC Insolvency Regulation now adopted • Smith, M. Precedent library for the general library. 3rd ed. (discusses the implications of the Recast Regulation) The Law Society. 2016 Tett: (2015) 4 CRI 172 • Valentine, B Booklet of criminal offences in Northern Ireland. 2016. Law Society NI. Defining COMI: where are we now? (discusses COMI at • Greenberg, D. Stroud’s judicial dictionary. 9th ed. Sweet & Maxwell. 2016. length with reference to relevant caselaw) Fry: (2012) 1 CRI 16 • Jones, R. Mental Health Act manual. 9th ed. Sweet & Maxwell. 2016. • Arlidge, A. Arlidge & Parry on fraud. 5th ed. Sweet & Maxwell. 2016. More scheming: recent developments in schemes of • Christou, R. Drafting commercial agreements. 6th ed. Sweet & Maxwell. 2016. arrangement and the decision in Codere (discusses the approach taken by the English courts to schemes • Mitchell, C. Goff & Jones: the law of unjust enrichment. 9th ed. of arrangement in the recent VGG, Stemcor and Sweet & Maxwell. 2016. Codere cases) • Wadlow, C. The law of passing off: unfair competition by misrepresentation. Beckwith et al: (2016) 1 CRI 21 5th ed. Sweet & Maxwell. 2016. • Grossey, S. The money laundering officer’s practical handbook 2017. UK schemes and forum shopping (discusses Money Laundering Resource. 2016. company’s centre of main interests with reference to • Middleton, S. Cook on costs 2017. LexisNexis. 2016. caselaw) Stones: (2014) 4 CRI 161 • SRA. SRA Handbook. November 2016 ed. The Law Society. 2016. • Cartwright, J. Misrepresentation, mistake and non-disclosure. 4th ed. The European Insolvency Regulation recast: the Sweet & Maxwell. 2016. main features of the new law (discusses the Recast • Dyson, M. Fifty years of the Law Commissions: the dynamics of law reform. Regulation) Hart Publishing. 2016. Fletcher: (2015),Insolv. Int. 28(7), 97-103 • Mills, S. Salinger on factoring. 5th ed. Sweet & Maxwell. 2017. Online Resources • Hollington, R. Hollington on shareholders’ rights. 8th ed. Sweet & Maxwell. 2017 • Greenberg, D. Craies on legislation. 11th ed. Sweet & Maxwell. 2017 • Tolley’s Insolvency Law Service • Kessler, J. Drafting trusts and will trusts: a modern approach. 13th ed. Division E - European Insolvency Issues - General Sweet & Maxwell. 2017 Introduction • Powell, J. Jackson & Powell on professional liability. 8th ed. Division E - European Insolvency Issues - - Personal Sweet & Maxwell. 2016 Insolvency- Case law from other EU Member States • Matthews, P. Disclosure. 5th ed. Sweet & Maxwell. 2017. • Tolley’s Company Law Service • Reynolds,K. Reynolds & Clark: renewal of business tenancies. 5th ed. Division I/Insolvency: Administrations V -- Sweet & Maxwell. 2017 International Elements/The EC Regulation • Arnold, S. CCH British Master Tax Guide 2016/17. Wolters Klower. 2016.

Available from the Law Society library – Please ask • Gaunt, J. Gale on easements. 20th ed. Sweet & Maxwell. 2017. a member of library staff for details • Webber, G. Residential possession proceedings. 10th ed. Sweet & Maxwell. 2017. • Nathan, A. McCutcheon on inheritance tax. 7th ed. Sweet & Maxwell. 2017. Textbooks • Dodwell. B. The red and green books. 2016-17. Wolters Kluwer. 2017. • Smith, N. Advising the family owned business. LexisNexis. 2017. The library has a wide selection of insolvency • Anderson, M. Drafting and negotiating commercial contracts. 4th ed. textbooks for reference that deal with COMI shifting. Bloomsbury. 2016. Journal of the LSNI 55 January-March 2017

Fax: 028 7930 1638 Banbridge, Co Down Email: gerry@ Date of Death: 11 January 2016 paduffymagherafelt.com Would any person having CLASSIFIEDS knowledge of a Will made by the Re: Elizabeth Kingon (deceased) above named deceased please Late of: Sir Samuel Kelly Home, contact: 39 Bangor Road, Holywood Arthur J Downey & Co BT18 0NE Solicitors Re: Wesley White (deceased) Formerly of: Tyrella House Missing Wills Late of: 6 Brae Place, 31 Melfort Drive, Belfast, 5 Church Street Ballygowan, Newtownards, Castlereagh BT5 7FD Banbridge BT32 4AA Re: Paula Margaret Georgina County Down BT23 5TY Date of Death: 25 November Tel: 028 4066 2123 Wilson Date of Death: 1 June 2016 2014 Fax: 028 4062 6712 Currently residing at: Would any person having any Would anyone having knowledge Email: law@ajdowney-solicitors. Ravenhill Private Nursing knowledge of the whereabouts of of the Will of the above named co.uk Home, 81A Shore Rd, a Will made by the above named deceased please contact: Greenisland, Carrickfergus deceased please contact: Neil Mulholland Re: Mary Harriet Clarke BT38 8TZ Joseph F McCollum & Company Elliott Duffy Garrett otherwise Etta Clarke Formerly of: 7 Greenview, Solicitors Solicitors (deceased) Parkgate, Ballyclare, County 52 Regent Street 34 Upper Queen Street Late of: 34 Rubane Road, Antrim BT39 0JP Newtownards Belfast BT1 6FD Kircubbin, Newtownards, Co Would anyone having knowledge County Down BT23 4LP Tel: 028 9024 5034 Down BT22 1AT of the Will of the above named Tel: 028 9181 3142 Date of Death: 7 June 2016 please contact: Fax: 028 9181 2499 Re: Bernard Skillen (deceased) Would any person having any Neil Mulholland Email: [email protected] Late of: 96 Bingnian Drive, knowledge of the whereabouts of Elliott Duffy Garrett Belfast BT11 a Will made by the above named Solicitors Re: Thomas Whiteside Date of Death: 16 December deceased please contact: 34 Upper Queen Street Of: Apartment 105, 2015 Joseph F McCollum & Co Belfast BT1 6FD 8 Northview, Newtownabbey Would anyone having knowledge Solicitors Tel: 028 9024 5034 BT36 7JL of a Will made by the above 52 Regent Street Formerly of: 5 Downview Park, named deceased please contact: Newtownards Re: Wilson Waugh (deceased) Belfast BT15 5HY Oonagh Maguire County Down BT23 4LP Late of: 26A Kilbeg Walk, Would any person having any Breen Rankin Lenzi Limited Tel: 028 9181 3142 Parkhill, Antrim, Co Antrim knowledge of the whereabouts of Unit 2, Slemish Buildings Fax: 028 9181 2499 BT41 1ER a Will made by the above named 105 Andersonstown Road Email: [email protected] Date of Death: 24 December person please contact: Belfast BT11 9BS 2014 Michael Murray Tel: 028 9061 8866 Re: Bryan McWilliams Would anyone with knowledge DWF (NI) LLP Email: [email protected] Formerly of: 29 Castle Park, of a Will of the above named Solicitors Antrim, County Antrim deceased please contact: Jefferson House Re: Patrick Eugene (known as Date of Death: Jonathan Corbett 42 Queen Street Eugene) Greenan (deceased) 11 August 2016 Nelson-Singleton Belfast BT1 6HL Late of: 2 Gransha Park, Belfast If anybody has any knowledge of Solicitors Tel: 028 9023 0230 BT11 8AU the whereabouts of a will made 21 Gallows Street Fax: 028 9024 4644 Date of Death: 5 June 2016 by the above named deceased Dromore Email: michael.murray@ Would any person having please contact: County Down BT25 1BG dwf.law knowledge of a Will made by the Steven Ewing above named deceased please Anderson Irwin and Co Re: Alfred Knox McCullough Re: Daniel O’Connell contact: Solicitors Formerly of: 63 Killeaton Formerly of: 11 Oaklea Road, Napier & Sons 32 Church Street Crescent, Derriaghy BT17 9HB Magherafelt Solicitors Antrim Would any solicitor holding a Will Date of Death: 31 May 2016 1-9 Castle Arcade County Antrim BT41 4BA on behalf of the above, please Would any person having any Belfast BT1 5DF Tel: 028 9446 2636 contact: knowledge of the whereabouts of Tel: 028 9024 4602 Fax: 028 9446 6822 Campbell and Caher a Will made by the above named Fax: 028 9033 0330 Email: steven@anderson-irwin. 24 Longstone Street deceased please contact: Email: [email protected] co.uk Lisburn P A Duffy & Co County Antrim BT28 1TP Solicitors Re: Herbert Rodney Watson Re: John (George) McLean Tel: 028 9267 2644 27-29 Broad Street (deceased) (deceased) Fax: 028 9260 2922 Magherafelt Late of: 18 Maryville Walk, Late of: Colinvale Court Private Email: francesca@ County Derry BT45 6EB Banbridge, Co Down Nursing Home, Glen Road, campbellandcaher.co.uk Tel: 028 7963 3433 Formerly of: 51 Ringsend Road, Belfast 56 Journal of the LSNI January-March 2017

Formerly of: 21 Wallasey Park, Solicitors Re: Charles Trevor Shaw Hinds Would anyone knowing the Belfast 32 Church Street (deceased) whereabouts of a Will for the Also believed to have resided in Antrim Late of: 18 McKeens Avenue, above named deceased please Dublin between 2000 and 2015 County Antrim BT41 4BA Carrickfergus, County Antrim contact: approximately Tel: 028 9446 2636 Previously of: 113 Harbour Nesbitt Solicitors Date of Birth: 8 May 1938 Fax: 028 9446 6822 Road, Ballyhalbert, County 109 Cregagh Road Date of Death: 3 September Email: steven@anderson-irwin. Down Belfast BT6 8PZ 2015 co.uk Date of Death: 13 May 2016 Tel: 028 9045 4005 If anybody has any knowledge of Would any person having any the whereabouts of a Will made Re: Martin Devine (deceased) knowledge of the whereabouts of Re: James Connery by the above named deceased Formerly of: 6 Braemar Street, a Will made by the above named Date of Death: 28 October 2013 please contact: Belfast deceased please contact: Would any person having Elliott Duffy Garrett Date of Death: 2 October 2016 J W McNinch & Son knowledge of the whereabouts of Solicitors If anybody has any knowledge of Solicitors a Will made for the above named Royston House the whereabouts of a Will made 5 The Square deceased please contact the 34 Upper Queen Street by the above named deceased Ballyclare undersigned Solicitors as soon as Belfast BT1 6FD please contact: County Antrim BT39 9BB possible: DX 400 NR Belfast P J McGrory & Co Tel: 028 9332 2217 Quinn & Heron Tel: 028 9024 5034 Solicitors Fax: 028 9335 2518 Solicitors Fax: 028 9024 1337 52 Andersonstown Road 15 Broad Street www.edglegal.com Belfast BT11 9AN Re: Anne Chambers Magherafelt BT56 6EB Ref: MCLE3-2 Tel: 028 9060 2986 Late of: Dunlarg Private Nursing Tel: 028 7930 0577 Fax: 028 9062 1201 and Residential Home, 22A Fax: 028 7930 0677 Re: Colette Anne Barrett Email: [email protected] Armagh Road, Keady BT60 3EW Email: [email protected] (deceased) Formerly of: 5 Rathmoyle Drive, Late of: 19 British Road, Re: Caroline Ann Sanders Keady, Armagh BT60 2XA Re: Robert McGuckin (deceased) Aldergrove BT29 4DH (deceased) Would any person having any Late of: 71 Ligoniel Road, Would any person having Formerly of: 50 Oaktree Drive, knowledge of the whereabouts of Belfast knowledge of the whereabouts Antrim, BT41 1DB a Will made by the above named Date of Death: 14 November of a Will for the above named Date of Death: 30 August 2016 deceased please contact: 2016 deceased please contact: If anybody has any knowledge of T D Gibson and Company, Carleton Would any person having Raymond Crooks the whereabouts of a will made Atkinson and Sloan knowledge of the whereabouts of Thompson Crooks by the above named deceased Morrison House a Will made by the above named Solicitors please contact: 107 Church Street deceased please contact: 325 Shankill Road Steven Ewing Portadown Oonagh Maguire Belfast BT13 1FX Anderson Irwin and Co County Armagh BT62 3DD Breen Rankin Lenzi Limited Tel: 028 9059 5551 Solicitors Unit 2, Slemish Buildings Fax: 028 9059 5553 32 Church Street Re: Martha Doreen England 105 Andersonstown Road Email: [email protected] Antrim Late of: Collegelands Private Belfast BT11 9BS County Antrim BT41 4BA Nursing Home, Lislasly Road, Tel: 028 9061 8866 Re: Rosanne Reid Tel: 028 9446 2636 Dungannon BT71 6TA Email: [email protected] Of: 27 Gilnahirk Park, Belfast Fax: 028 9446 6822 Formerly of: Cornascriebe, 187 Would any solicitor having Email: steven@anderson-irwin. Markethill Road, Portadown, Re: Mary Veronica Willaghan knowledge of the whereabouts of co.uk County Armagh BT62 3SL (deceased) a Will for the above named please Would any person having any Late of: 93 Finaghy Road South, contact: Re: Mr James Lowry (known as knowledge of the whereabouts of Belfast BT10 0BY Nesbitt Solicitors Jim) McKinney a Will made by the above named Date of death: 27 November 109 Cregagh Road Late of: 2 Kernan Park, deceased please contact: 2016 Belfast Portadown BT63 5QY T D Gibson and Company, Carleton Would anyone having any Date of Death: 16 June 2016 Atkinson and Sloan knowledge of the whereabouts Re: Phyllis Skelton If anybody has any knowledge of Morrison House of any Will made by the above Formerly of: 59 Loughview the whereabouts of a will made 107 Church Street named deceased please contact : Road, Aldergrove, Crumlin by the above named deceased Portadown Brid McColgan Date of Death: 21 September please contact: County Armagh BT62 3DD Tughans Solicitors 2016 James H Rodgers & Co Marlborough House If anybody has any knowledge of Solicitors Re: Walter James Andrews 30 Victoria Street the whereabouts of a will made 15 Church Street Late of: Mount Merrion Avenue, Belfast BT1 3GG by the above named deceased Portadown BT62 3LN Belfast Tel: 028 9055 3300 please contact: Tel: 028 3833 7211 Formerly of: 61 Hughes Court, Fax: 028 9055 3366 Steven Ewing Fax: 028 3835 0980 Belfast Email: brid.mccolgan@tughans. Anderson Irwin and Co Email: [email protected] Date of Death: 26 October 2016 com Journal of the LSNI 57 January-March 2017

Re: Dennis William George deceased please contact: 76 Main Street 10-12 Artillery Street Higginson (deceased) Ciaran McGlone Moira Londonderry BT48 6RG Late of: 53 Ballystrudder Donnelly & Kinder County Armagh BT67 0LQ Tel: 028 7126 1334 Gardens, Islandmagee, Larne Solicitors Tel: 028 9261 0555 Fax: 028 7137 1659 BT40 3SU 22 Adelaide Street Email: reception@ Email: j.okane@caldwellrobinson. Date of death: 15 December Belfast BT2 8GD dlaverysolicitors.com com 2015 Would anyone having any Re: Samuel John Owens Re: John Burton (deceased) Re: John Robert Brown knowledge of the whereabouts Late of: 21 McKeen’s Avenue, Late of: Geanann Care Home, 31 Late of: 40 Crom Road, Bunn, of any Will made by the above Carrickfergus, County Antrim Ballygawley Road, Dungannon. Newtownbutler, County named deceased please contact: BT38 7AN County Tyrone BT70 1EL Fermanagh Reid Black Date of Death: 3 December Formerly of: 26 Glenfield Road, Date of Death: 30 June 2016 Solicitors 2016 Lurgan, County Armagh BT66 Would any person having 2 Holywood Road Would any person having any 8EP knowledge of a Will made by the Belfast BT4 1NT knowledge of the whereabouts of Date of Death: 25 November above named deceased please a Will made by the above named 2016 contact: Re: Gerard Mulligan (deceased) deceased please contact the If any person has any knowledge Murnaghan Fee Late of: 43 Lisburn Square, undersigned as soon as possible: of the whereabouts of the Will for Solicitors Lisburn BT28 1TS Mark Shannon the above named Boston Chambers Date of Death: 5 November Bernard Campbell & So deceased, please contact us Queen Elizabeth Road 2016 Solicitors within 28 days: Enniskillen Would any person having 17 High Street H McPartland & Sons Co Fermanagh BT74 7JA knowledge of a Will made by the Carrickfergus Solicitors above named deceased please County Antrim BT38 7AN 11 Market Street Re: Miss Eileen Templeton contact: Tel: 028 9336 9033 Lurgan Late of: Mountvale Private JMK Solicitors Email: mark.shannon@ County Armagh BT66 6AR Nursing Home, 5 Brewery Lane, 27-29b St Mary’s Street bernardcampbell.co.uk Tel: 028 3832 2452 Dromore, County Down Newry Fax: 028 3834 9561 Formerly of: 20 Lenaderg Road, County Down Re: Henry Gerard McCloskey Email: pmcpartland@ Banbridge, County Down Tel: 028 3025 7766 Late of: Longfield Nursing mcpartlands.com If any persons have knowledge of Fax: 028 3025 7230 Home, 2 Longfield Road, the whereabouts of a Will made Eglinton, County Derry Re: Maurice Crangle (deceased) by the above named, would they Re: Eileen McDermott Previously of: 110 Muldonagh Late of: 37d Maralin Avenue, kindly contact: (deceased) Road, Claudy, County Derry Lisburn, BT28 1PF Thompson Mitchell Late of: Cove Manor Nursing Date of Death: 26 November If any person has any knowledge Solicitors Home, 89 Mullanahoe Road, 2016 of the whereabouts of the Will or Trevor House, 9 The Square Dungannon, County Tyrone Would any person having know of a homemade Will for the Hillsborough BT71 5AU knowledge of the whereabouts of above named deceased, please County Down BT26 6AG Previously of: 33 Glenone Road, a Will made by the above named contact: Tel: 028 9268 9666 Portglenone BT44 8NL deceased please contact: Shauna Thompson or Mildred Fax: 028 9268 8187 Date of Death: 29 March 2016 Andrea Doherty Breakey Email: joannewatt@ Would anyone having any John Fahy & Company Mildred Breakey Solicitors at thompsonmitchell.co.uk knowledge of the whereabouts Solicitors Email: breakeysolicitors@gmail. of any Will made by the above 8 Bowling Green com Name of patient: Ms Valerie named deceased please contact: Strabane Or Cooper Mallon McCormick County Tyrone BT82 8BW Tel: 028 9266 9566 Address: Breffni Lodge Solicitors Tel: 028 7138 2356 Residential Home, Station Master’s House Fax: 028 7138 2180 Re: John Brian McCaul, a 3 Wandsworth Road, Belfast 16 Station Road Email: keelin.devine@ Patient of the Office of Care & BT4 3LS Maghera BT46 5BS johnfahysolicitors.com Protection Formerly of: Tel: 028 7964 2670 Of: Greenhaw Lodge Care 9 Thornhill Parade, Belfast BT5 Fax: 028 7964 4655 Re: Michael Agnew (deceased) Centre, 42 Racecourse Rd, 7AT Formerly of: 13 Old Church Lane, Londonderry Date of birth: 18 May 1932 Re: Imelda Evelyn Swandel Aghalee, County Antrim Formerly of: 28 Craigbrack Would anyone having any Formerly of: 15 Fitzroy Court, Date of Death: 16 August 2012 Road, Eglinton, Londonderry knowledge as to the whereabouts Fitzroy Avenue, Belfast BT7 1TL Would anyone having knowledge Would any person having any of Ms Cooper’s Will (if any) and/ Date of Death: 10 November of any Will made by the above knowledge of the whereabouts of or Title Deeds for the property at 2016 named deceased after 5th April a Will made by the above named 9 Thornhill Parade, Belfast, BT5 Would any person having 1979 is asked to contact: Patient please contact: 7AT please contact: knowledge of the whereabouts of Deirdre Lavery Solicitors Ltd Caldwell & Robinson Frances Keown a Will made by the above named Deramore House Solicitors Keown Solicitors 58 Journal of the LSNI January-March 2017

Lynden House Re: Margaret Elizabeth McCord County Down of the whereabouts of Title Deeds 19 Cregagh Road Late of: 90 Hyndford Street, 44 Newry Street, Banbridge, relating to the above noted Belfast BT6 8PX Belfast BT5 5JG County Down property please contact:- Tel: 028 9045 6042 Would any solicitor having 46 Newry Street, Banbridge, Caroline McBride Email: frances@keownsolicitors. knowledge of the whereabouts County Down MacCorkell Legal & Commercial co.uk of the Will made by the above “Solitude”, 19 Castlewellan Garvey Studios named please contact: Road, Banbridge, County Down 8-10 Longstone Street Re: James Joseph Lowe Nesbitt Solicitors Would any person having Lisburn BT28 1TP (deceased) 109 Cregagh Road knowledge of the whereabouts of Tel: 028 9266 9777 Late of: 82 Cavehill Road, Belfast Title Deeds relating to the above Email: [email protected] Belfast BT15 5BT noted properties please contact: Date of Death: 6 August 1996 Gordon Bell & Son Property at: 28 Lockside Court, If any person has any knowledge Missing Title Deeds Solicitors Belfast, BT9 5GQ of the whereabouts of a Will 9-11 Newry Street Owner: Ahmed J Nasir for the above named deceased Property at: 2 Clowney Street Rathfriland If any persons have knowledge please contact us within the next Belfast BT12 7LY County Down of the whereabouts of the Title 28 days: Owners: Mary Philomena Tel: 028 406 30248 Deeds relating to the above Thomas Armstrong McBride and David McBride Email: info@gordonbellandson. property, please kindly contact: Solicitors If any persons have knowledge of co.uk. Ms Naheed Anwar 51/53 Upper Arthur Street the whereabouts of Title Deeds NA & Company Belfast BT1 4GJ re: the above property would they Re: Elizabeth Thornton or Solicitors Tel: 028 9032 1399 kindly contact: William Henry Thornton 347 Newtownards Road Fax: 028 9023 6272 Alex Wong Address: 4 Ferndale Gardens, Belfast BT4 1AJ Email: shauna.edwards@ Flynn & McGettrick Glengormley, Newtownabbey, Tel & Fax: 028 9508 5041 tomarmlaw.co.uk Solicitors County Antrim BT36 5AW Email: naandcosolicitors@hotmail. 238 Falls Road Would any person having co.uk Re: Michael Bernard Callaghan Belfast BT12 6AH knowledge of the whereabouts of (deceased) Tel: 028 9023 9629 Title Deeds relating to the above Property at: 41 Ballynacross Late of: Glencarron Nursing Fax: 028 9023 9656 noted property please contact: Road, Knockloughrim, Home, 6 Creamery Road, Email: [email protected] Edward Lavery Magherafelt BT45 8PY Crossmaglen E J Lavery & Company Registered Owners: Previously of: 2 Art McCooey Folio: AN 209031L Solicitors Margaret McGall, Ellen Jean Park, Glassdrummond, County: Antrim 1 - 3 Hightown Road Kirkpatrick and Mary McKee Crossmaglen, County Armagh Registered Owner: Marian Glengormley If any persons have knowledge BT35 9DZ Surgenor County Antrim BT36 7TZ of the whereabouts of the Title Date of Death:28 August 2016 Take notice that any person Tel: 028 9084 3436 Deeds relating to the above Would anyone having any having custody of or information Email: [email protected] property, please contact: knowledge of the whereabouts as to the whereabouts of the Jemma Knox of any Will made by the above Land Certificate relating to the Re: Brigid Morgan or Michael Tel: 07823 332411 named deceased please contact: above mentioned Folio should Brendan Morgan Eoin McConville forthwith produce said Certificate Address: 32 Swanston Crescent, Re: Ellen Jane Davie Fisher & Fisher or communicate such information Glengormley, County Antrim James Davie Solicitors to the undermentioned solicitors. BT36 5DW Hilary Eileen Newby 9 John Mitchel Place And take further notice that Would any person having Property at: 63 Dromore Road, Newry BT34 2BP unless the said Land Certificate knowledge of the whereabouts of Hillsborough, County Down Tel: 028 3026 1811 is so produced or adequate Title Deeds relating to the above BT26 6HU Fax: 028 3026 6695 information as to its whereabouts noted property please contact: Would any person have any Email: eoin.mcconville@ is so communicated within three Edward Lavery knowledge of the whereabouts fssolicitors.com weeks of publication of this E J Lavery & Company of the Title Deeds of the above notice, a duplicate Land Certificate Solicitors property please contact: Re: William Robert McCord may be applied for. 1 - 3 Hightown Road Ann Roulston Late of: 90 Hyndford Street, Oonagh Maguire Glengormley Conn & Fenton Belfast BT5 5JG Breen Rankin Lenzi Ltd County Antrim BT36 7TZ Solicitors Would any solicitor having 105 Andersonstown Road Tel: 028 9084 3436 39 Bow Street knowledge of the whereabouts Belfast BT11 9BS Email: [email protected] Lisburn of the Will made by the above County Antrim BT28 1BJ named please contact: Re: Estate Mary Edith Burnett Re: Colenso Apartments Ltd Tel: 028 92 674 321 Nesbitt Solicitors (deceased) Address: Colenso Court, Colenso Fax: 028 92 671 430 109 Cregagh Road Addresses: Parade, Belfast BT9 5BB Email: annroulston@ Belfast 42 Newry Street, Banbridge, Would anyone having knowledge lisburnsolicitors.com Journal of the LSNI 59 January-March 2017

Property at: 20 Dunbeg Park, unless the said Documents John Ross & Son to the undermentioned solicitors. Hillsborough, County Down of Title are so produced or Solicitors And further take notice that BT26 6AS adequate information as to their 30 Frances Street unless the said Documents Owners: Sydney Gregg whereabouts is so communicated Newtownards of Title are so produced or (deceased) and Irene May within three weeks of publication County Down BT23 7DN adequate information as to their Gregg (deceased) of this notice, reconstitution of whereabouts is so communicated If any persons have knowledge of Title may be applied for. Re: Property at 22 Main Street, within three weeks of publication the whereabouts of Title Deeds John Ross & Son Annalong, Co Down BT34 4QH of this notice, reconstitution of re: the above property, would Solicitors Registered Owner: Adam Title may be applied for: they kindly contact: 30 Frances Street McComb Thomas Armstrong Thompson Mitchell Newtownards If any persons having knowledge Solicitors Solicitors County Down BT23 7DN of the whereabouts of the Title 51/53 Upper Arthur Street Trevor House Deeds relating to the above Belfast 9 The Square Premises: 68-70 Royal Avenue, property, please contact: BT1 4GJ Hillsborough Belfast BT1 1DJ Ian Ward County Down BT26 6AG Held in the name of: Gillen & Co Tel: 028 9268 9666 Jean Millar & Company or Solicitors Fax: 028 9268 8187 Jean Moore Flannigan (formerly 3 Old Kenlis Street Practice and office Email: joannewatt@ Millar) Banbridge building for Sale thompsonmitchell.co.uk Take notice that any person County Down BT32 3BD having custody of or information Tel: 028 4062 6639 Long established solicitor’s Premises: 97 Shandon Park, as to the whereabouts of the Fax: 028 4066 9564 practice and freehold office Belfast BT5 6NY Documents of Title relating to the Email: [email protected] building in Belfast for sale (in one Held in the name of: above-mentioned property should lot or separately by arrangement). Joseph Flannigan and Jane forthwith produce said Documents Premises: 9 Rugby Parade, Easy walking distance of the (Jean) Flannigan or communicate such information Belfast Courts. Six car parking spaces Take notice that any person to the undermentioned solicitors. Held in the name of: included. having custody of or information And further take notice that John McNamara Apply to: as to the whereabouts of the unless the said Documents Take Notice that any person PO Box No 230 Documents of Title relating to the of Title are so produced or having custody of or information c/o dcp strategic communication above-mentioned property should adequate information as to their as to the whereabouts of the Ltd forthwith produce said Documents whereabouts is so communicated Documents of Title relating to the BT3 Business Centre or communicate such information within three weeks of publication above-mentioned property should 10 Dargan Crescent to the undermentioned solicitors. of this notice, reconstitution of forthwith produce said Documents Belfast BT3 9JP And further take notice that Title may be applied for. or communicate such information

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SEAMUS CONNOLLY Moran and Ryan Solicitors 35 Arran Quay Dublin 7 Tel: 003531 8725622 Email: [email protected] S C Connolly & Co Solicitors Bank Building, 39 Hill Street Newry BT34 1AF Tel: 028 302 65311

Charity Number: NIC102337

Charity Number: NIC102337 If you wish to advertise Make a Make aMake in The Writ please contact WILL WILLaWILL Karen Irwin for rates, specification and copy MONTH MONTH deadlines at:

MONTH Make MARCH 2016 MARCH 2016 MARCH 2016 dcp strategic Make For more details or for a list of

participating solicitors please solicitors please participating communication ltd,

During March 2016 www.nihospice.org During March 2016During March 2016 [email protected] contact our Legacy Officer Officer our Legacy contact waive their will making fee fee waive their will making participating solicitors will solicitors will participating a in return for a donation to BT3 Business Ireland Hospice. Northern Centre on 028 9078 1836, email on 028 9078 1836, email For more details or for a list of participating solicitors will participating solicitors will solicitors please participating

participating solicitors will www.nihospice.org WILL

[email protected] 10 Dargan Crescent MONTH 028 9078 1836 contact our Legacy Officer Officer our Legacy contact or visit our website. waive their will making fee fee waive their will making During March 2016 March 2016 During participating solicitors will solicitors will participating a in return for a donation to waive their will making fee waive their will making fee Ireland Hospice. Northern waive their will making fee on 028 9078 1836, email Belfast

in return for a donation to WILL

in return for a donation to MONTH 028 9078 1836

in return for a donation to or visit our website. During March 2016 March 2016 During BT3 9JP MARCH 2016 Northern Ireland Hospice. Northern IrelandNorthern Hospice. Ireland Hospice.

Tel: 028 9037 0137 MARCH 2016 For more details or for a listFor of more details or for a list of For more details or for a list of Fax: 028 9037 1509 participating solicitors pleaseparticipating solicitors please participating solicitors please Email: [email protected]

contact our Legacy Officercontact our Legacycontact Officer our Legacy Officer on 028 9078 1836, email on 028 9078 1836,on 028 email 9078 1836, email [email protected]@nihospice.org [email protected] or visit our website. or visit our website.or visit our website. THE

www.nihospice.orgwww.nihospice.orgwww.nihospice.org 028 9078 1836 028 9078 1836028 9078 1836 Charity Number: NIC102337 Charity Number: NIC102337 Charity Number: NIC102337 WRIT 62 Journal of the LSNI January-March 2017

Client focused advice HEART TRUST FUND (ROYAL VICTORIA HOSPITAL)

REPUBLIC OF The main object of this established and registered charity is the support and furtherance of the vitally important treatment, both medical and surgical, provided IRELAND AGENTS primarily for patients in the Cardiology Centre in the Royal Victoria Hospital Belfast, and the equally important work of research into heart disease carried on there. The charity is authorised to use its fund to provide that support, or achieve that furtherance when (but only when) public funds are not available, or are insufficient, for the purpose. Willing to undertake The Royal’s splendid record in the fight against heart disease is too well known to agency work on need advertisement, and by an immediate cash gift or a legacy or bequest to this charity in your will, you can help directly to reduce the grave toll of suffering and behalf of Solicitors in death from this disease in Northern Ireland. The grim fact is that the incidence of Northern Ireland coronary artery disease in Northern Ireland is one of the highest in the world. The administration of the charity is small and compact and the Trustees are careful to ensure that its cost is minimal. As a result donors and testators can be assured that the substantial benefit of their gifts and bequests will go directly to advance Lavelle Solicitors the causes of the charity. St James’ House Adelaide Road Further details about this charity and its work will gladly be supplied by the Dublin 2 Secretary, The Heart Trust Fund (Royal Victoria Hospital), t 00 (353) 1 644 5800 9B Castle Street, Comber, Co Down BT23 5DY. Tel: (028) 9187 3899. f 00 (353) 1 661 4581 e [email protected] (Registered Charity No: XN52409). w www.lavellesolicitors.ie (Inland Revenue Gift Aid Scheme Code: EAP76NG). (Registered with The Charity Commission for Northern Ireland: NIC100399) Contact: Web: www.hearttrustfund.org.uk Marc Fitzgibbon, Partner Email: [email protected]

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8337 HS_TheWrit .indd 1 09/02/2017 14:13 Since delivering the CPD Seminar on Charity benefit statement and find it hard to articulate Law for the Law Society in February 2015 and demonstrate their public benefit. On So far as the Charity Tribunal is concerned Jenny Ebbage, Partner and Head of the occasion the registration application has acted there have been a number of decisions Charities Team at Edwards & Co. Solicitors, as a catalyst for a wide-ranging governance published. Many of these have arisen from writes on some recent developments. review and also an opportunity for upskilling the institution of statutory inquiries and the Over the year it has been a fast moving boards and those who work with them. From removal of charity trustees. environment for charities in Northern Ireland Friday, 3 June 2016 an updated version of the and it is important for practitioners to keep up online charity registration application form is The Court of Appeal decision in Charity to date so as to provide accurate and timely expected to go live. This is to be a more user Commission for Northern Ireland and Bangor advice to charity clients or to better inform friendly and intuitive version of the online Provident Trust and the Attorney General for themselves should they sit on a charity board. application process, with a change to the look Northern Ireland, seems to have now settled and flow and format of the questions being the question that Bangor Provident Trust was It would be impossible to cover everything asked. Hopefully this will assist charities to indeed a charity and subject to the jurisdiction in this short piece but even a cursory look at register more easily. of the Commission which had instituted a the News items on the Charity Commission statutory inquiry under s. 22 of the Act citing a for Northern Ireland’s website will identify We are keeping a watching brief on the concern in relation to governance and financial significant recent movement in regulation outcome of the recent non-domestic rates matters. The decision of the Commission to impacting on the charity sector. Take charity consultation and in particular if this affects institute the inquiry dated back to August 2012 accounting for example. The new regulations, charity shops. and the matter had been considered by the the Charities (Accounts and Reports) Charity Tribunal and subsequently appealed to Regulations (NI) 2015 came into effect on 1 Equality Guidance for charities was produced in the High Court and then to the Court of Appeal. January 2016, these affect charity accounting conjunction with the Equality Commission for and reporting. It is a legal requirement for Northern Ireland to help charities understand In March the Charity Commission published registered charities to report annually to equality legislation as it applies to charitable its Interim Statutory Inquiry Report into the the Commission. All registered charities are bodies and where exemptions apply to Disabled Police Officers Association Northern required to complete and submit an online charities. Ireland. In early May 2016 the High Court annual monitoring return form, and their (Chancery Division) delivered its judgment accounts and reports. The full reporting and in Attorney General for Northern Ireland and accounting regulations apply to charities Those practitioners who also practice company Robert Crawford (a trustee of the Disabled reporting on a full financial year that begins law will be aware of the likely impact of the Police Officers Association), and the Charity on or after 1 January 2016, or those registered Small Business, Enterprise and Employment Commission, which was an application by the with the Commission on or after 1 January Act 2015 which is relevant to those charities Attorney General to appeal a decision of the 2016. Interim arrangements remain in place that are companies limited by guarantee and Charity Tribunal for Northern Ireland on various for charities registered before 1 January 2016. to trading subsidiaries. Also be aware from points of law. The Attorney General was using Charities that are companies must comply with 30 June 2016 that confirmation statements his powers under s. 14 of the Charities Act the Companies Acts as well. The reporting (which replace annual returns) to Companies (NI) 2008. The Attorney General sought to obligations are primarily determined according House must contain “beneficial ownership” appeal the decision of the Charity Tribunal to to the level of income of the charity. TheYou details,wouldn’t this follows from the settle launch of the for second best. remove Mr Crawford as trustee of the charity. trustees annual report will be of interest as Person with Significant Control (PSC) Register, The Attorney General was not involved in the trustees have to report on how the charity which requires certain organisations including Neither would we. the hearing before the Charity Tribunal, but meets the public benefit requirement. The full companies to report on the people who own intervened to appeal the decision of the annual monitoring return also requires charity or control their business. Tribunal. Mr Justice Horner concluded that the trustees to identify if any serious incident appeal raised various issues which may be of reports need to be made. It is hoped that The “Monitoring and compliance guidance – general importance in other appeals the guidance issued by the Commission on Getting it right” issued by the Commission, accounting and reporting will follow soon. In helps charity trustees and their solicitors by addition, the adoption of the new SORP, makes providing a summary of some of the relevant it essential for new charities to ensure that legislation and a checklist to help charities to their accounts are in the right format. comply with their legal obligations. This can be read in conjunction with the Running your Although not all charities are registered, Charity guidance. Of particular interest are and this process is likely to take a couple of the sections on how the Charity Commission years to complete,Call: more+44 than (0)141 4300 charities 413 8800monitors and identifies non-compliance and appear on the register. The registration of what consequences arise for charity trustees charities looksEmail: like a [email protected] enough process when non-compliance is identified. at the outset;Visit: however, www.firsttitle.eu this has proved to be a challenge on occasions particularly when In Edwards & Co. we have advised clients the charitable purposes do not neatly fit where a concern has been raised and the First Title Insurance plc is authorised by the Prudential Regulation Authority and regulated by the within anyFinancial of the Conduct twelve Authority charitable and the Prudential purposes Regulation Authority.Commission First Title Insurance has imposed plc is self-regulatory or on the registrationregistered in England application. under company We number find 01112603.that Registeredregulatory office: First guidance Title Insurance or plc,in other instances ECA Court, 24-26 South Park, Sevenoaks, Kent TN13 1DU Leading Title Insurance clients struggle with the concept of the public invoked its statutory inquiry process.