Journal of the Bar of Ireland • Volume 18 • Issue 5 • November 2013 Laying Seige to the Corporate Veil Periodic Payment Orders The Arthur Cox Employment Law Yearbook 2012 Arthur Cox Employment Law Group IMPORTANT RECENT CASES include: Employment Rights of Undocumented Workers: Hussein v The Labour Court & Younis [2012] IEHC 364 Non-pay or reduction in bonus awards: Lichters and Hass v DEPFA Bank [2009] 1510S and 20091509S Employee withdrawing from disciplinary inquiry: McGlinchey v Ryan [2010] IEHC 536, 537 The Arthur Cox Employment Law Yearbook 2012 provides in-depth coverage Contractual right to remain in situ pending appeal: Wallace v of the di erent areas of Irish law associated with employment law. Updated Irish Aviation Authority [2012] IEHC 178 annually in an alphabetical format, it leads you quickly to your specialist area of Springboard injunctions: Allied Irish Bank PLC and Others v interest and includes the following: Diamond and Others [2011] IEHC 505; QBE Management Services t Decisions of the superior courts, Labour Court, Equality Tribunal, Employment Appeals Tribunal (UK) Ltd v Dymoke & Ros [2012] EWHC 80; CEF Holdings Ltd v t Irish legislation and statutory instruments Mundey t English law relevant to common law decisions and EU law [2012] IRLR 912 t Decisions of the Court of Justice of European Communities and Directives/ Regulations Costs of interlocutory application for injunction: Tekenable Ltd t Decisions of the European Court of Human Rights v Morrissey, Ghent and Critical Village Ltd [2012] [1590P] Equal Pay Comparators: Kenny & Ors v Minister for Justice Includes developments and announcements during 2012 such as: Equality and Law Reform & Ors Case C-427/11A Legislating for a World-Class Workplace Relations Service July 2012, presented to Victimisation: O’Brien v Persian Properties t/a O’Callaghan Hotels Oireachtas Committee by the Minister on Jobs, Enterprise and Innovation. DEC-E2012-010; A female teacher v Board of Management of a Secondary School – DEC-E2012-103; Kealy v Brothers of Charity The Arthur Cox Employment Law Yearbook 2012 e-book gives you instant Services (Clare) Ltd - DEC-E2012-042 access online to the sources and materials selected and includes the following: t Annual report of Employment Appeals Tribunal (EAT) Bullying and harassment: Kelly v Bon Secours Health System t Annual report of Labour Relations Commission Limited [2012] IEHC 21 t Annual report of Health & Safety Authority Fixed term employees: University College Cork v Bushin [2011]; t Data Protection Commissioner reports, guidance and case law Huet v Université de Bretagne occidentale Case C-235/11 Extraterritoriality and unfair dismissal: Duncombe and Others v BILLS or HEADS OF BILLS AT END 2012 INCLUDE: Secretary of State for Children, Schools and Families (No 2) [2011] t Criminal Justice (Spent Convictions) Bill UKSC 36; Ravat v Halliburton Manufacturing and Services Ltd t Companies Bill Also featured: [2012] IRLR 315; Clyde & Co LLP & Anor v Van Winkelhof [2012] t Health and Social Care t Public Service Pensions (Single Scheme) EWCA Civ 1207 Professionals (Amendment) Bill and Remuneration Act 2012 Precautionary suspensions: Crawford v Su olk Mental Health t Mediation Bill t Statute Law Revision Act 2012 Partnership NHS Trust [2012] IRLR 402 t National Vetting Bureau t European Stability Mechanism Act 2012 (Children and Vulnerable Persons) Evidence: CCTV footage: Dublin Bus v The Data Protection t Financial Emergency Measures in the Commissioner [2012] IEHC 339 t Protected Disclosure in Public Interest (Amendment) Act 2011 the Public Interest Bill Alternative remedies: Stephens v Archaeological Development t Employment Permits (Amendment) Bill Services Ltd [2010] IEHC 540; Halstead v Paymentshield Group t Human Rights and Equality Commission Bill Holdings Ltd [2012] EWCA Civ 524 IMPORTANT STATUTES COVERED: Working Time Directive: Fraser v Southwest London St George’s t Protection of Employees Mental Health Trust [2012] IRLR 100; NHS Leeds v Larner [2012] (Temporary Agency Work) Act 2012 EWCA Civ 103; Neidel Case C-337/10 [2012] IRLR 607; Asociacion t Industrial Relations Nacional de Grandes Empresas de Distribución (ANGED) v (Amendment) Act 2012 Federación de Asociaciones Sindicales (FASGA), Federaciόn de Trabajadores Independientes de Comercio (Fetico), Federaciόn Estatal de Trabajadores Case C-78/11; Dominguez v Centre ISBN 978 1 78043 149 9 informatique du Centre Ouest Atlantique, Préfet de région Publication date February 2013 Centre C282/10; Roskell Limited and Armands Rikmanis DET No Format Paperback + e-book DWT12147 (probably the rst in Ireland on the entitlement of List price €90.00 + 23% VAT (applied to 50% of product). employees to annual leave while on sick leave). TOTAL €100.35 + P&P €5.50 Place your order today by contacting Jennifer Simpson, Bloomsbury Professional, Fitzwilliam Business Centre, 26 Upper Pembroke Street, Dublin 2. DX 109035 Fitzwilliam Tel (01) 6373920 Fax (01) 6620365 Email [email protected] (Please make cheques payable to Gill & Macmillan Ltd) Bar Review ad Arthur Cox February.indd 1 31/01/2013 14:51 Editorial Correspondence to: Eilis Brennan BL The Editor Bar Review Law Library Four Courts Dublin 7 DX 813154 Telephone: 353-1-817 5505 Fax: 353-1-872 0455 E: [email protected] Cover Illustration: Brian Gallagher T: 01 4973389 Editor: Eilis Brennan BL E: [email protected] W: www.bdgart.com Typeset by Gough Typesetting Services, Dublin Editorial Board: [email protected] T: 01 8727305 Gerry Durcan SC Mary O’Toole SC Conor Dignam SC Brian Kennedy SC Patrick Dillon Malone SC Vincent Browne BL Mark O’Connell BL Paul A. McDermott BL Tom O’Malley BL Volume 18, Issue 5, November 2013, ISSN 1339-3426 Patrick Leonard BL Paul McCarthy BL Des Mulhere Jeanne McDonagh Contents Jerry Carroll Consultant Editors: 86 Periodic Payment Orders and Structured Settlements Dermot Gleeson SC Patrick MacEntee SC ALAN KEATING BL Eoghan Fitzsimons SC Pat Hanratty SC James O’Reilly SC 92 Laying Siege to the Corporate Veil ALEC FLOOD BL The Bar Review is published by Round Hall in association with The Bar Council of Ireland. 95 First Joint Meeting of the Bar Councils of Ireland and For all subscription queries Northern Ireland contact: Round Hall DAVID NOLAN SC AND YVONNE MULLEN BL Thomson Reuters (Professional) Ireland Limited lxxxix 43 Fitzwilliam Place, Dublin 2 Legal Update Telephone: + 353 1 662 5301 Fax: + 353 1 662 5302 E: [email protected] 97 Enforcing Mortgages and Charges: Recent Developments web: www.roundhall.ie DAVID O’NEILL BL Subscriptions: January 2013 to December 2013—6 issues 102 Moving Capacity out of the Victorian age: the new Assisted Annual Subscription: €297.00 + VAT Decision-Making (Capacity) Bill For all advertising queries contact: David Dooley, KATE BUTLER BL Direct line: + 44 20 7393 7775 E: [email protected] Directories Unit. Sweet & Maxwell Telephone: + 44 20 7393 7000 Contributions published in this journal are not intended to, and do not represent, legal advice on the subject matter contained herein. This publication should not be used as a substitute for or as a supplement to, legal advice. The views expressed in the articles herein are the views of the contributing authors and do not represent the views or opinions of the Bar Review or the Bar Council. The Bar Review November 2013 Periodic Payment Orders and Structured Settlements ALAN KEATING BL Introduction plaintiff, the annual payments can be varied or structured over 3 th the duration of the plaintiff ’s life. In order for a structured On the 15 January 2013, the Minister for Justice, Equality settlement to have efficacy, a concession is usually necessary and Defence, Mr. Alan Shatter T.D announced that the from the powers that be that the yearly income will not be Government had approved his proposals to prepare considered income for the purposes of income tax. Rather it legislation to give the courts new powers to make periodic is to be considered the payment of compensation for personal payment orders for the benefit of persons catastrophically 1 injuries, by instalment. injured through the negligence of others. The Department A PPO is an order made by the Court which makes indicated that the drafting of the General Scheme of the Civil provision for the periodic payment of compensation, to a Liability (Amendment) Bill was to commence shortly after th Plaintiff, in respect of certain agreed items of future special the 15 January 2013 and that it would take account of the damages to cover identifiable needs for the lifetime of the recommendations of the Report of the High Court Working plaintiff. Typically, the items the subject of a PPO will be Group on Medical Negligence and Periodic payments, which costs of future care and therapies and medical / therapeutic report was published in October 2010. aids and appliances in catastrophic injury cases. The items are Should the legislation be enacted, it would represent a formulated at the date of the order as well as the amount of significant change in the law governing compensation for the first periodic payment, which will then be indexed linked personal injuries. Although the legal basis for the award thereafter. A crucial feature a PPO regime is the legislative of periodic payment orders (hereinafter “PPOs”) has been measures aimed at guaranteeing continuity of payment. The implemented in other common law jurisdictions for quite objective is total cover for future costs covered by the order. some time, little is known in this jurisdiction about the 2 The periodic payments will be granted in tandem with a lump practicalities of such a regime. This has not prevented sum payment incorporating general damages, past special plaintiffs and defendants, since the publication of the Working damages and some future items of special damages not Group’s Paper, agreeing interim settlements involving interim deemed suitable for periodic payments. Again, the periodic payments with a view to revisiting the issue of a PPO at the payments must be exempt from income tax if they are to be end of the interim period.