CONTRACT Breach of

PERSONAL INJURIES Burn Injuries to Newborn Baby

LITIGATION On Death do Legal Actions Survive?

PROPERTY What is involved in buying out your Freehold and why is it an attractive option?

COMPANY LAW Shareholder Issues Where the relationship with a shareholder becomes a company problem, it needs to be carefully handled or it could developIe into a much greater and more expensive issue for the company. Issues can arise when a shareholder believes the company is going in a direction the shareholder does not approve of or never agreed to when they invested in the company. This normally applies to minority shareholders. The shareholder might discuss their problem with other shareholders and this can create a group or class of shareholders that is opposing the company business. Alternatively, they might act alone and become disruptive. This is more fraught for the company where the disgruntled shareholder is also a director. Apart from having to deal with a shareholder grievance, there is a good deal of executive time wasted on this internal dispute. So, it is very important for the company to ensure the proper steps are taken in dealing with the issue as quickly as possible and, towards this end, discussing the problem with the company solicitor is recommended. Minority shareholders have rights enshrined in legislation, so it is of utmost importance that these rights are not violated. Such rows can get personal among individuals who know each other and this can become very damaging for all concerned. It is important that any of the board members do not step over the line in dealing with the disgruntled shareholder. If the disgruntled shareholder becomes such a problem that it is interfering with the business of the company, then the board can take steps to remove the shareholder from the register of shareholders. Firstly, consult the Shareholders Agreement which all shareholders have signed up to and within that, there may be a clause that addresses the situation that has arisen. It is very important that in dealing with the unhappy shareholder that in whatever action is taken by the company, the Shareholder's Agreement is followed. Removing a Shareholder Having consulted the Shareholder’s Agreement and taken advice from your solicitor, the Board of Directors may well decide to remove the shareholder. If, having reviewed the Shareholder’s Agreement there is evidence that the shareholder is in breach of the Agreement, then this can justify the shareholder’s removal. This, however, requires a high threshold because if the breach were minor, the shareholder could mount legal action against the company. Minor breaches can be dealt with internally and may not warrant the shareholder’s removal. Here your solicitor’s recommendation should be followed. If the shareholder misrepresented the company, engaged in fraudulent activities, misused company’s assets, etc. these actions in themselves would justify the removal of the shareholder. Other instances that would justify removal would be insider dealing, failure to perform specific duties, conflict of interest. Once the decision has been made to remove the shareholder, the board then must put in place the procedures for this. The company should do this in conjunction with their solicitor to ensure no error is made which could leave the company exposed to legal action by shareholders or their representatives. The company should write to the shareholder citing the Shareholder’s Agreement and setting out clearly the reasons why the Board feel that it is in the best interest of the company that the shareholder be removed from the register of shareholders. The letter should invite the shareholder to a meeting to enable them to state their case or defend their position. At the conclusion of the meeting, unless the Shareholder has persuaded the company not to remove the shareholder, the company should pass a resolution for the removal to proceed. The value of the company needs to be agreed so that a value on the shares can be achieved. There is a school of thought that a majority is more valuable than a minority shareholding. This may be so in many cases but where a minority shareholders hold the balance of control; it is arguably that the minority shareholder is at least equal to and possibly more valuable than any other shareholders. After the shareholder has been removed, make sure the proper documentation has been done, i.e., transfer of shares; notification to the Companies Registration Office, stamp and sign the stock transfer forms. Most importantly: do not remove a shareholder without the guidance of your solicitor.

MEDICAL NEGLIGENCE Discovery of Post-Accident Medical Records

PERSONAL INJURY Workplace Injury

PROPERTY Mortgage Possession Cases: When are the Banks Barred from Starting Proceedings under the Limitations Rule?

The old Wardship system was replaced in 2015 by the Assisted Decision-Making process and the Decision Support Services (DSS) office was set up to take the place of the Wards of Court Office.  In an application under the Act, where a family member lacks any mental capacity to manage their affairs, it is usual for two other family members to be appointed to assist and manage the elderly person’s affairs. The people selected to fill this position are referred to, in somewhat official sounding language, as Decision Making Representatives (DMR). In a recent Circuit Court case, a novel decision was reached by the judge on an elderly lady’s affairs when two DMRs were appointed from an independent panel arranged by the DSS and not from the family of the lady in question. Essentially, the judge made the decision based on evidence suggesting the siblings of the elderly lady were too invested in her financial affairs, had taken some questionable money gifts from her, and appointing them would be a conflict of interest to say the least. The lady had suffered from dementia for some years. Her brother managed her finances but lived in her home without paying any rent. In 2022, she had paid towards a holiday abroad for him and his family. The family felt they were best placed to care for their elderly sister and look after her affairs. However, the HSE argued that in view of all the evidence brought before the court, they were not the best candidates to be appointed to manage her affairs and sought instead to have two totally independent persons appointed. The judge was satisfied that while the siblings were well intentioned towards their sister, they failed to grasp the circumstances in which a conflict of interest had arisen. The judge pointed out that no accounts were presented to the court despite her brother looking after her finances for a number of years. He had also set up a direct debit in his favour for €25 weekly coming from her account. There was confusion over the use of her apartment by a family member and other similar issues. The judge held, looking at those facts, that it would not be appropriate to appoint the same set of siblings as her DMRs and, in effect, as managers of her estate. There was a clear conflict of interest between appointing them given how they had over several years intermeddled in her affairs. The judge made a final order appointing an independent DMR to look after her personal and medical issues and appointing another DMR to look after her property and financial affairs. This was the first time the court went outside the family members themselves in appointing a DMR. The best interests of the vulnerable lady with dementia were given the highest priority by the court using the still relatively new provisions of the Assisted Decision-Making Capacity Act 2015. Re: Joan Doe & HSE [2023] Circuit Court (His. Hon. Judge O’ Connor) 8 December2023.