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WILLS: Alteration to a Will Disallowed by High Court

Tue, 22 Jul 2025 09:25:51 GMT

A case came before the High Court where it appeared that an alteration was made to a Will after it had been executed.

The deceased man had died, leaving four siblings as he had never married and had no children.

In his Will dated 29 April 1981, he left a valuable property in Dublin to one of his brothers, Eamonn. A later alteration to the Will replaced the bequest of the property to his brother, Eamon with a bequest of IR €1 (pound).

Another brother of the deceased, Malachy sought an order of the court for a grant of probate and an order declaring that the Will was duly executed.

The judge noted that if the attempted obliteration of the bequest was found to be valid and effective, the deceased’s three surviving siblings and the children of a sibling who predeceased the testator would be entitled to shares of the property.

The judge was satisfied that the Will was correctly executed and, having done so, now needed to address the part of the Will that bequeathed the property to one of the deceased’s brothers.

The judge considered section 86 of the 1965 Act which invalidates obliterations, interlineations or alterations to a Will if made after execution unless they are executed in like manner as the will itself, the court highlighted: “This is so even if the words are not only no longer ‘apparent’ but cannot be deciphered even with the aid of infrared technology. A conundrum can therefore arise if there is an invalid obliteration of part of a Will and it is not possible, even with the aid of technology, to decipher what the terms of the will are.”

The judge found that in circumstances where the obliterated words in the deceased’s Will were still legible, “it is clear that this Will has not been partially revoked so as to remove the bequest in favour of Eamonn” and that there was no evidence whatsoever to support any finding of an intention to revoke that part of the Will. The judge pointed out that if the changes were made prior to the Will being executed, then that would be fine.

It was submitted to the court that the deceased’s brother Tom came into possession of the Will on a date prior to August 2009 and that the applicant came into possession of the will on 12 August 2009 and accepted that the Will had not been opened or altered between 12 August 2009 and the date of the deceased’s death. However, the judge noted that that left a gap of 28 years wherein an alteration to the Will could have been made.

The judge was of the opinion that it was more likely that the change of heart came after execution of the Will, noting that it could not be said whether the attempted obliteration and alterations were done by the testator in any event as there was no acknowledgment of the changes by him or by any witnesses and so section 86 had not been complied with.

Therefore, the High Court ruled the changes made to the Will in respect of the property to be invalid and admitted the Will to probate so as to include the words “160 S.C. Road, Dublin” and determined that the characters “£1-00” would be excluded from the Will as their insertion was not validly and effectively done.

In the matter of the Estate of Michael Joseph McNally [2025] IEHC 299.

MEDICAL NEGLIGENCE Claim that the pharmacy gave the incorrect medicine to a customer.

Tue, 22 Jul 2025 09:22:21 GMT

An interesting case came before the High Court where the plaintiff alleged that Boots Pharmacy was negligent in giving her medicine for a migraine complaint, where it was alleged that the pharmacist failed to advise the plaintiff that the migraine medication contraindicated with an antidepressant drug she was taking. As a result, the plaintiff suffered a brain bleed and stroke.

In the proceedings, it was claimed that the medicine was allegedly inappropriately sold to the plaintiff and consequently there was an alleged failure by Boots Pharmacy to advise the plaintiff that the migraine medication is contraindicated with an antidepressant drug that the plaintiff was taking. This was due to a significant interaction between the two medications and can lead to blood pressure and strokes.

Boots Pharmacy vehemently denied all the claims made by the plaintiff and explained their defence to the court. The witness for the pharmacy said they could not remember the plaintiff purchasing the medication but stated that their protocol required that anyone purchasing migraine medication is referred to a pharmacist in the store.

The plaintiff said that she took the migraine medication when she woke up with a terrible headache. She felt dizzy after taking the tablets, collapsed and was taken to the hospital by ambulance. There a scan was taken showing a brain bleed. She was in hospital for a month and after discharge suffered severe left leg weakness, difficulties with her left arm and had to go for rehabilitation.

The plaintiff claimed that at time of purchasing the migraine tablets, there was no consultation with the pharmacist. Boots disputed this.

Boots claimed that there was a responsibility on the plaintiff to inform the pharmacist of her medical history, and without doing so, they could not have been aware of other medications she was taking. As a result of this information not being disclosed to the pharmacist, there was contributory negligence by the plaintiff. Boots said without the plaintiff disclosing her other medications she was taking, there was no way that they could have known that the migraine medication would conflict with her other medication and thus the plaintiff was the author of her own misfortune.

The parties settled the case without admission of liability by Boots Pharmacy, so we don’t know how the case would have been decided. But it does appear clear that the plaintiff, not mentioning to Boots Pharmacy at the time of the purchase of her other medicines, did contribute to the suffering she later endured.

O’Meara v Boots Pharmacy High Court (Miss Justice Denise Brett) 26 June 2025.

PROBATE How to Dispute a Will

Thu, 26 Jun 2025 09:17:34 GMT

There can be occasions where a person or persons wish to challenge the Will of a loved one. The grounds can vary, but common grounds are that they may have felt that the deceased (testator) was not of sound mind when making their Will, or that another person exercised undue influence on the person making the Will, or that a beneficiary may feel that they were unfairly treated by the Will or that the Will was invalid.

A child of the deceased may claim that they were treated less fairly that other siblings and thus would be entitled to challenge the Will. In this case, a court will look into any disbursements during the testator’s lifetime that might have been the reason why the challenger was left less of the testator's assets than his/her siblings. The court seeks to read the intention of the testator and interpret it accordingly.

A person who was a financial dependent of the testator would have a similar claim. This group could be children, spouse, adopted/fostered children, civil partners, grandchildren or step-grandchildren. Outside of this group i.e. nephews or nieces, a claim can be made, but it will be for the court to decide whether they have a legitimate claim or not.

Testator was Not of Sound Mind

A Will can be challenged if it is claimed that the testator lacked the ‘necessary capacity’ at the time of signing of the Will. This means, the person making the Will was not of sound mind and did not understand what they were doing or signing.

For such a claim to be successful, medical evidence would have to be produced to show that the testator lacked the mental capacity to understand what they were doing or signing.

Invalid Wills

For a Will to be valid, it must fulfil certain conditions:

The Will must be in writing.
It must be signed by the person who made the Will in front of two independent witnesses.
The witnesses must not be beneficiaries.
The person who made the Will must be over 18 and of sound mind.
The witnesses themselves must be over 18.

Undue Influence

Put simply, this amounts to putting pressure on a person to do something they might not do or want to do themselves. In Wills, it might be persuading the testator to leave an asset to somebody.

A court will look at a Will that is being contested to ascertain if the testator put some provision in the Will that was out of character for the testator. Or if one beneficiary has done very well from the Will, which looked out of place. Another ground here could be that a gift in the Will was in contrast with the previously expressed intentions of the deceased.

Contesting a Will is a complex issue, so engaging the services of a solicitor is critical. The claim against a Will is to overturn all or part of the Will, and that requires establishing to the court the evidence necessary to invalidate the will and this is where your solicitor will guide you on what is regarded as one of the most difficult tasks in any court proceedings.

DISCRIMINATION School Discriminated Student for Wearing an Earrin

Thu, 26 Jun 2025 09:14:50 GMT

A case came before the Workplace Relations Commission concerning a transition student being punished by the school for the wearing of an earring in one ear.

The school had a rule that students could wear a pair of earrings but not a single earring.

At the start of term last year, the student arrived at the school wearing a round silver stud earring in one ear. The student differed with the school on the rule concerning the wearing of earrings. The student’s mother and grandmother became involved with the school about the issue and attended a meeting with the school’s principal which they believed was a hostile meeting. In evidence before the WRC, the school principal denied this. Following the meeting, the student was punished for breach of the rule. The punishment consisted of not being allowed to leave school with other students for lunch and finish school later.

The solicitor for the student said that an amicable solution had been sought, but as opinions differed, it became necessary to bring the matter to the WRC. He said that the student felt that his reputation had been attacked as the pressure escalated between the parties over what the student thought was an absurd rule about the wearing of earrings. The student felt the rule didn’t make any sense and was an interference with a student’s right to express themselves.

It was submitted that the punishment was disproportionate and unwarranted, and breached his right to wear one earring when other students could wear one in each ear.

The school submitted that it followed its disciplinary code at all times in dealing with the student and sought to de-escalate the issue.

The WRC found that the school had discriminated against the student on the grounds of gender and ordered the rule to be changed to permit students to wear one or two earrings and awarded the student €9,000 in compensation. The money was to be paid to his mother until the student reached the age of 18 and used for his education until then.

The WRC decided not to publish the names of the parties.

Student (Minor) v Secondary School Ref No. ADJ-00054056, 5 June 2025

MEDICAL NEGLIGENCE Mandatory Incident Disclosure Introduced for Healthcare Professionals.

Fri, 14 Mar 2025 14:54:17 GMT

Suing a hospital or medical consultant was always a difficult task as such actions are protracted and expensive. These difficulties were compounded by the hospital/insurers’ reluctance to release their medical notes or be transparent about patient incident records.

Such difficulties could perhaps become a thing of the past with the introduction of recent legislation which basically requires the hospital or doctor to disclose to the patient and their family any serious patient safety incidents that occurred while the patient was in their care. The rather long-winded name of this act is The Patient Safety (Notifiable Incident and Open Disclosure) Act 2023 which came into effect on the 26th of September 2024.

Examples of such incidents might perhaps include the wrong medication being given or the wrong blood type transfusion being administered to a patient. Errors could occur in the anaesthetic area not to mention in the high-risk area of prenatal care and delivery.

The HSE and its hospitals have been historically reluctant to disclose any such incidents or errors that occurred when the patient was in their care. There was a strong tendency to circle the wagons and limit any relevant information from reaching the patient or their family. A culture of secrecy is now being slowly displaced by a culture of openness and transparency.

What exactly does “notifiable safety incident” mean?

It means any incidents resulting in the unanticipated and unintended death or serious injury to the patient.

But who has to comply with this new law?

Almost everyone who is a healthcare service provider such as public and private hospitals, GPs, dentists, and pharmacists. All of these must notify the HSE following such an incident and disclosure must then be finally made to the patient.

Can you be sued if you do make such a disclosure?

No. To encourage transparency, no liability will attach to any such disclosure.

What if your hospital just refuses to disclose?

An unreasonable refusal to disclose can attract substantial penalties.

Any other reforming measures contained in the act?

The act obliges the National Cancer Screening Service to arrange a review of their screening results if requested by cancer patients.
It excludes clinical records from being admissible in either negligence or disciplinary actions, thereby facilitating their full release.
It expands the right of HIQA, the Health Authority, to inspect private hospitals and health services in the further cause of patient safety.

The model of the medical profession is: Do no Harm. But when harm does occur, they are now under an obligation to be transparent about it.

EMPLOYMENT LAW  Discrimination

Fri, 14 Mar 2025 14:53:06 GMT

Virgin Media appealed to the Labour Court an award of € 30,000 for discrimination taken by a long-serving schedule planner.

At the Workplace Relations Hearing, the applicant, Sian Shepherd, complained that she had been discriminated against by the media company after deciding that the selection process for the appointment of a scheduling team leader was tainted with discrimination.

Ms Shepard had availed of maternity leave between August 2021 and August 2022 and early in October 2022 the company advertised internally for the position of scheduling team lead. There were four applicants among whom was the plaintiff applicant.

The applicant was unsuccessful in her application. Out of the four applications for the post, Ms Shepherd was a Joint third place.

The Labour Court found that the applicant had failed to establish any facts from which it would be possible for the court to infer that she may have been treated less favourably by the company on grounds of her family status. Commenting on this, the deputy chairman of the court noted that at an earlier hearing of the appeal, Ms Shepherd stated that those who were placed ahead of her in the job application were both parents of young children. It followed then that their family position was the same as Ms. Shepherd.

Ms. Shepherd submitted that she had worked for the company for 15 years, eight of which were years she worked consecutively. She claimed that she had been passed over for promotion that she was led to believe was almost guaranteed to her. She stated that prior to the maternity leave she was the most senior member of the team with the most experience and that she had trained every member of the team including the successful candidate. She claimed that on her return from maternity leave she had been excluded from an important scheduling meeting dealing with the death of Queen Elizabeth 11.

At the WRC hearing, the company contended that the applicant’s complaint of discrimination due to her family status was groundless and misconceived. The company’s decision to appoint another member of the team was based on a robust and transparent recruitment process which took into consideration all the applicants' suitability for the position.

In considering the final choice the successful applicant displayed greater understanding of the company's business needs, strategic knowledge,
other recommendations and a structure of the team going forward.

The appeal was allowed.

Shepherd v Virgin Media The Labour Court 12 December 2024 Ref No. EDA2468

PERSONAL INJURY Psychological Injuries

Fri, 31 Jan 2025 22:23:09 GMT

In February 2019, the plaintiff was injured from a terrifying fall and lengthy skid from his motorbike on a slip road driving onto the M1 motorway. Liability for the accident was attributed to an unknown driver of a car who could not be traced, so the defendant was the Motor Insurers Bureau of Ireland. The case came before the High Court for assessment of damages only as special damages had been agreed between the parties at €8,000.

On the day of the accident, the plaintiff was leaving his home at approximately 6:30 a.m. to travel to his work in Sandyford, Co. Dublin. This was a journey the plaintiff was well familiar with. He came down the slipway at the Balbriggan interchange to enter the M1 when an erratic motorist cut in front of him without warning causing him to brake suddenly. The motorist then also braked, causing the plaintiff to brake again and ultimately fall from his motorbike with an approximately 200m skid along the roadway amongst heavy traffic. He said he came to a stop on his back with his head in a ditch and felt immediate pain in his left arm. He described that he “knew something was up” and, on taking off his protective biking gear could see his hand “hanging off at the end of his wrist.” He also had an injury to his left ankle.

The plaintiff was taken to hospital by ambulance where he was x-rayed revealing the extent of his injuries. These were: (a) his left wrist revealed a comminuted intra-articular fracture with depressed intra-articular fragments (b) his left ankle revealed no obvious fracture and of his lumbar sacral spine, no acute injury. Notwithstanding the absence of a fracture, the plaintiff outlined how very painful and debilitating his ankle was in the aftermath of the incident.

The plaintiff accepted that the injuries had substantially resolved themselves after about six months though he remains in some residual pain five years since the accident if required to stand for long periods.

In the course of the operation the plaintiff experienced an allergic reaction to a prophylactic antibiotic he had been given, Teicoplanin, and required resuscitation. This was understandably traumatic for the plaintiff to hear when he later woke up from his anaesthetic. He had an uneventful post-op recovery but he is left with a 10cm longitudinal surgical scar extending up from his wrist.

During the plaintiff’s four-day in hospital, he was concerned about developing MRSA as another patient close to him had caught the disease.

When the plaintiff was discharged from hospital his arm was in a splint and sling for approximately six weeks. He required a support on his ankle and his movements and general activities of daily life were restricted. He required intensive physiotherapy and was prescribed home exercises thereafter, which he carried and continues to carry out, to get movement into his wrist. The plaintiff accepted that he had not engaged with further professional assistance in this regard. The plaintiff indicated that he would have taken time off work if that had been possible but as he is self-employed, the simple fact of life was that if he did not work, he did not get paid and there was no other income coming into the family. He therefore returned to work within a week of the accident. However, to travel to work then took an hour and a half as it required a car journey, with his wife available to drive, followed by a bus and then a Luas.
While at work the plaintiff had difficulties operating the keyboard and mouse on his computer. Later he tended to work from home. His social activities in sports were impacted by his injuries.

Given the extent of the plaintiff’s injuries and the later intrusion these made on his professional and home life the court, in assessing damages, took into account the psychological Injuries that resulted from his ordeal.
Scar: The 10cm scar was deemed noticeable but not significantly burdensome to the plaintiff. If it had been the primary injury, it would merit €20,000, but its contribution as an additional injury was valued lower.
Ankle Injury: Falling into the “minor” category of the Guidelines, it would have been valued at €2,500 as a standalone injury.
Psychological Effects: Though no formal psychological injury was diagnosed, the plaintiff’s sleep disturbance, flashbacks, and fear following the accident were acknowledged. These were valued at €5,500.

A combined award of €21,000 for these injuries after applying a discount of 25% for their cumulative effect.

General damages were awarded at €66,000 and the agreed special damages of €8,000 brought the total award to €74,000 with costs.

Crum -v- Motor Insurers Bureau Ireland [2023] IEHC 656 (ex tempore).

FALLEN TREES  Who is Responsible?

Fri, 31 Jan 2025 22:21:29 GMT

We are in the season of high winds and those with trees on their land could have damage claims against them where the trees or branches fall onto a neighbour’s land or obstruct a public pathway or road.

The governing law here is the Roads Act, 1993, section 70 which places the responsibility on the landowner to ensure the trees are safe and do not cause damage to others.

S.70 (i) (a) of the Act states:

70.—(1) (a) The owner or occupier of any structure and the owner or occupier of any land on which a structure is situated shall take all reasonable steps to ensure that the structure or the use of the structure is not a hazard or potential hazard to persons using a public road and that it does not obstruct or interfere with the safe use of a public road or the maintenance of a public road.

The section has interesting words in this section in ‘all reasonable steps’ so it is not an absolute rule and there is some flexibility. It would appear from this that if a person with trees on their property is fastidious in maintaining the trees, then through storm damage they may not be liable. If the damage is done to a neighbour that also has trees that may not be such an issue. But if the neighbour does not have trees and their property is damaged then it gets more complicated depending on the damage.

Storm damage is regarded as a natural event but poorly maintained or diseased trees on lands may not escape under liability.

Property owners living in suburbs with hedges hanging out over their property obstructing footpaths are liable for any injury caused to pedestrians or children passing by.

In non-stormy weather conditions, liability for fallen trees is covered by the legislation so poorly maintained trees will be the responsibility of the property owner.

Property owners with trees on their land are best advised to ensure the trees are well maintained. Dead trees should be removed as these are most vulnerable in stormy conditions and if in doubt speak to your solicitor.

PRACTICE  Inherent Jurisdiction of the High Court

Thu, 16 Jan 2025 10:05:15 GMT

The ‘inherent jurisdiction’ of the High Court is an interesting relief that owes its origin to the Common Law, but in Ireland, it is
enshrined in our constitution. Article 34.3.1° provides:

‘The courts of first instance shall include a high court invested with full original jurisdiction in and power to determine all matters
and questions whether of law or fact, civil or criminal’.

In October 2023, the High Court issued a Practice Direction (these are procedures to be followed when bringing proceedings before a court) aimed at people who lacked capacity. The Practice Direction in full is available on the Courts website at HC123 - Inherent Jurisdiction (Capacity) Applications but in short states that:

1. This Practice Direction is intended to apply to all applications made pursuant to the inherent jurisdiction of the High Court for the detention and treatment of people who lack or are alleged to lack capacity. These applications will appear in the Inherent Jurisdiction (Capacity) List.

2. This Practice Direction will come into operation on 2 October 2023 and is issued in accordance with the general authority of the President of the High Court and sections 11(12) and (13) of the Civil Law (Miscellaneous Provisions) Act 2020, insofar as it relates to remote (or hybrid) hearings. (Courts Website)

An example of the exercise of this doctrine came before the High Court recently. The case involved a woman who lacked capacity due to anorexia nervosa.

Her case was before the High Court’s ‘ inherent jurisdiction ’ list. In this list, orders are sought to vindicate the constitutional rights of people who cannot make decisions in their own interest due to a lack of capacity.

In this case, a High Court judge had previously made orders to the Mater Hospital for the woman’s detention and treatment at the Mater after hearing her body mass index (BMI) was falling dramatically and that her condition was that she was close to death. The orders had been sought by the Mater Hospital, but it transpired that only one doctor was aware of the orders. When this doctor went on a week’s leave, the woman was assessed as medically stable and ready for transfer to another medical facility.

This amounted to a breach of the orders that had been made and was deemed an ‘illegal movement.’ This transfer had a detrimental effect on the woman as she had become nervous and ‘crucially’ her BMI level was affected.

The judge noted that the hospital only noticed the move of the woman after it had occurred. The judge was very critical of the hospital for allowing this to happen and deemed it a breach of the orders that had been made for the treatment and care of the woman.

The judge accepted an undertaking by the CEO of the Mater Hospital ensuring that no breach of a court order will ever occur again in relation to someone who falls under the inherent jurisdiction of the High Court.

DEFAMATION  Social Media Posts

Thu, 16 Jan 2025 10:01:52 GMT

Former presidential candidate, Peter Casey, issued defamatory proceedings for the untrue and defamatory postings on Facebook. The defamatory postings were made in April 2023 to 2,000 followers of the person who put up the post.

Casey ran in the local elections. He said in his election literature that he had been an activist for years and stood up against ‘draconian lockdowns 4G and 5G, austerity and undocumented and uncontrolled immigration’.

When the Ukraine war broke out, Casey decided to convert a bed and breakfast he owned in Buncrana, into accommodation for women and children fleeing the war in Ukraine.

The defamatory post claimed that workers at Casey’s building were ‘moving unvetted people around like cattle and then warehousing them in office cubicles for profit is akin to human trafficking and inhumane.’ After a fire occurred on the property, the defendant posted a picture of damage to the property complaining that the matter had not been reported in the mainstream media.
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Mr. Justice David Nolan considered the statements made by the defendant and ruled that they were untrue and defamatory stating that they were ‘very stressful, hurtful and upsetting’ to Mr. Casey and his family. Judge Nolan determined that the words posted were untrue and, by their natural and ordinary meaning, were defamatory to Mr. Casey’s reputation. He consequently awarded €120,000 in general damages and €20,000 in aggravated damages.

The judge noted that the defamatory posts remained online for nine months after the court ordered their removal in November last year. He considered this as a breach of the court order and contempt.

Peter Casey v Kim McMenamin High Court (Mr. Justice David Nolan) 13 December 2024 [2024] IEHC 705

EMPLOYMENT LAW Employment Permits

Fri, 29 Nov 2024 14:40:26 GMT

The Employment Permits Act, of 2024 is now law and basically it is an extension of the existing legislation with some additions. The Act applies to non-EEA nationals who want to accept eligible employment and residence in Ireland.

It introduces Seasonal Employment Permit (known as SEP), this is designed to support sectors such as horticulture and agriculture. It will allow permit holders to work up to 7 months per year in seasonally recurrent employment. It will be formally launched in early 2025. Employers who wish to avail of this scheme must apply to become registered.

Removed from the Act is the requirement to advertise the job vacancy in print media which is replaced by advertising online. However, job vacancies will still need to be published on the Jobs Ireland and EURES websites operated by the Department of Social Protection.

Change of Employer Position

Permit holders for General Employment Permit (GEP) and Critical Skills Employment Permit (CSEP) are allowed to change their permit employer. Once 9 months have passed with their current employer, they can change employers.

GEP holders can apply to change employer within the type of employment under which their permit was granted, while CSEP holders can change to an employer across a broader category of employments. The current permit must be valid for at least two months following this request.

Permit holders can receive a promotion without having to seek a new permit.

Dependants other than spouses and partners of CSEP holders and Researchers who are in Ireland pursuant to EU Council Directive 2005/71/EC are now eligible to apply for Dependant Employment Permits.

Subcontractors Position

A change in the system is that subcontractors will now have access to the employment permit system.

The new Act should make the employment of qualifying non-nationals more streamlined.

WORKPLACE INJURIES  Employers’ Responsibilities

Fri, 29 Nov 2024 14:38:12 GMT

The Safety, Health, and Welfare at Work Act, 2005 is the legislation that employers must comply with to safeguard their workers in the workplace.

The Act is very explicit in setting out the duties of the employer and these are set out in section 8 as follows:

(a) managing and conducting work activities in such a way as to ensure, so far as is reasonably practicable, the safety, health, and welfare at work of his or her employees;
(b) managing and conducting work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health, or welfare at work of his or her employees at risk;
(c) as regards the place of work concerned, ensuring, so far as is reasonably practicable—
(i) the design, provision, and maintenance of it in a condition that is safe and without risk to health,
(ii) the design, provision, and maintenance of safe means of access to and egress from it, and
(iii) the design, provision and maintenance of plant and machinery or any other articles that are safe and without risk to health;
(d) ensuring, so far as it is reasonably practicable, the safety and the prevention of risk to health at work of his or her employees relating to the use of any article or substance or the exposure to noise, vibration or ionising or other radiations or any other physical agent;
(e) providing systems of work that are planned, organised, performed, maintained, and revised as appropriate so as to be, so far as is reasonably practicable, safe and without risk to health;
(f) providing and maintaining facilities and arrangements for the welfare of his or her employees at work;
(g) providing the information, instruction, training, and supervision necessary to ensure, so far as is reasonably practicable, the safety, health, and welfare at work of his or her employees;
(h) determining and implementing the safety, health and welfare measures necessary for the protection of the safety, health and welfare of his or her employees when identifying hazards and carrying out a risk assessment under section 19 or when preparing a safety statement under section 20 and ensuring that the measures take account of changing circumstances and the general principles of prevention specified in Schedule 3 ;
(i) having regard to the general principles of prevention in Schedule 3, where risks cannot be eliminated or adequately controlled or in such circumstances as may be prescribed, providing and maintaining such suitable protective clothing and equipment as is necessary to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees;
(j) preparing and revising, as appropriate, adequate plans and procedures to be followed and measures to be taken in the case of an emergency or serious and imminent danger;
(k) reporting accidents and dangerous occurrences, as may be prescribed, to the Authority or to a person prescribed under section 33 , as appropriate, and
(l) obtaining, where necessary, the services of a competent person (whether under a contract of employment or otherwise) for the purpose of ensuring, so far as is reasonably practicable, the safety, health, and welfare at work of his or her employees.

This is a mighty list of responsibilities!

Personal injury claims can be made by staff as well as customers or visitors to the workplace. It is for this reason that employers must ensure that the places their staff work in or visitors come need to comply with the legislation.

Insurance
Insurance premiums will rise because of a personal injury claim so this alone should be an incentive for businesses to be compliant.
If the business is compliant with the Health and Safety legislation, then it is a shield against personal injury claims. We read in the media the increasing costs of insurance and where some businesses have had to close because of the rising cost of cover. The best defence to such legal actions is compliance with the legal obligations of employers in workplace health and safety.

Risk Assessment
Identifying potential hazards in the workplace is key to ensuring against claims.
Employers are required to implement suitable protective and preventive measures to control risks.
Be sure to engage a qualified risk assessor to carry out the work of risk assessment.

Governing Body
The Health Safety Authority (HSA) is responsible for regulating and overseeing workplace safety and health, which includes providing guidance and information to employers and employees, conducting inspections and investigations, and taking enforcement actions when necessary to ensure compliance with the legislation.

A non-compliant employer can face serious consequences, including enforcement notices, fines, and potentially imprisonment in the most serious cases. The HSA can issue improvement or prohibition notices requiring immediate action to rectify non-compliance.

If in doubt on your obligations as an employer, contact your solicitor for advice.

COMPANY  Liability of Directors

Fri, 29 Nov 2024 14:35:18 GMT

It falls to company directors to ensure the proper running of a company. Thus, it follows that improper actions by directors can result in sanctions against directors themselves.

There aren’t many cases that come before the High Court on directors’ liability, but recent caselaw illustrates how serious the courts view improper conduct by directors.

Improper conduct can take many forms: disrespecting the interests of shareholders, disrespecting minority shareholders rights, conflicts of interests among board members where decisions could impact negatively on the company, not obeying a court order and more.

The Companies Act, 2014 – Exposure of Directors

The Act sets out the duties and obligations of directors. Failure to follow these can result in exposing directors to categories of penalties ranging from minor to major. There are four categories listed in the Act for sanctioning directors.

Category 1 offences can result in imprisonment for up to 10 years and/or a fine of up to €500,000 on conviction on indictment or on summary conviction imprisonment for not more than 12 months and/or a fine not exceeding €5,000.

Category 2 offences can result in imprisonment of up to 5 years and/or a fine of up to €50,000 on conviction on indictment or on summary conviction imprisonment for up to 12 months and/or a fine not exceeding €5,000.

Category 3 offences are summary offences only and can result in imprisonment of up to 6 months and/or a fine not exceeding €5,000.

Category 4 offences are summary offences only and can result in a fine not exceeding €5,000.

The courts take breaches by company directors very seriously and in some instances, convictions can result in an order of Attachment. This can be against an individual for contempt in refusing to carry out a court order and if they continue to be in contempt, they could be committed to prison.

Attachment, Sequestration of Assets
Attachment is an order to have a named individual arrested and brought before the court to answer the contempt, which has been alleged. Sequestration of Assets is where a sequestrator (court official) is appointed to take possession of all property and assets in the possession of a person judged to be in contempt of court.

Conclusion

The consequences are severe and rightly so for directors who abuse the law and put the company at risk. The company secretary has greater responsibilities under the 2014 Act and if he or she is in any doubt on how the company is being operated, early contact with the company solicitor is advised.

EMPLOYMENT LAW Independent Contractors

Tue, 19 Nov 2024 18:39:00 GMT

A decision by the Supreme Court last year (Revenue Commissioners v Karshan (Midlands) Ltd) was put to the test in a case before the Workplace Relations Commission (WRC) where a musician who was dismissed by the management company of performer Michael English, sought compensation for breaches of employment law.

The applicant, Matt McGranaghan was a musician who played the fiddle, for many years, in Michael English’s band.

The principles of the Supreme Court's ruling last year were on distinguishing employees from contractors in the entertainment industry - "the original form of the gig economy", as it was described in court for the band's management.

McGranaghan had argued with the respondent that he had employment rights having continuously worked for Michael English for six years. The respondent argued that McGranaghan was not an employee, but an independent contractor and self-employed.

At a meeting with the band’s musicians, Michael English made it clear that members of the band being employees was a ‘non-runner.’ He is alleged to have said at the meeting ‘If that doesn't suit any of ye I'd appreciate it if you'd let me know now".

Following that meeting, Mr McGranaghan was told by email that his services would no longer be required at the end of the following month and received no notice pay upon the termination of the relationship.

Mr McGranaghan cited to the WRC hearing extracts from secretly recorded comments made by Mr. English which was objected to by Mr. English’s barrister.

It was submitted by Mr. English’s barrister that he ‘vigorously and strenuously" denied that Mr McGranaghan was ever an employee and maintained he had always been a contractor - with no recourse to the Unfair Dismissals Act.

Mr McGranaghan told the tribunal that 98.7% of his annual earnings came from working with the respondent’s band.

The complainant’s representative, Martin McMahon, said that his client made €50,000 annually for playing around 220 gigs a year – adding that treating Mr McGranaghan as self-employed created a "substantial" 15% saving on employer PRSI contributions compared with direct employment.

In her decision, WRC adjudicator Caroline Reidy noted that the Supreme Court had rejected the "mutuality of obligation" test in its decision on Revenue Commissioners v Karshan (Midlands) Ltd last October and had set out a new test which considered the exchange of money for work, the level of control exercised by the alleged employer, and whether the purported employee was providing personal services or had the right to engage a substitute.

Ms Reidy noted that the relationship between Mr McGranaghan and the management company involved the weekly exchange of money for work as well as the provision of his personal services as the band’s "resident fiddle player" - with substitutes only an "exception".

There was also sufficient control exercised by the employer to potentially qualify the relationship as employment, she stated, as Mr McGranaghan had "no flexibility" on when he played with the band, wore a uniform, was told what to play, and took direction from the company.

PROPERTY Legal Requirements

Tue, 19 Nov 2024 18:37:04 GMT

Before committing to work on your home, consult your solicitor on building regulations in your area. Failure to do so could result in penalties and in some cases the removal of the finished work.

Planning Permission

In some instances, planning permission will not be required, and your solicitor will advise you on when such exemptions arise. However, if planning permission is required, it is important that you comply with all necessary requirements otherwise the permission may well be void.

Examples of development that require planning permission are:

1. Extensions that increase the overall size of your home by more than 400 square feet.

2. Loft conversions that alter the structure of the roof.

3. Any changes that affect the exterior appearance of your dwelling. Your solicitor will advise you on this.

Procedure in Applying for Planning Permission

Ideally engage an architect to draw up detailed plans that will be submitted to the local authority on your behalf. The plans must provide all details of the work to be undertaken. The length of time for decisions can vary with local authorities but your architect should be able to give you an estimate of the time.

Building Regulations

The architect draws up the plans in accordance with your instructions, but you will need an engineer to ensure the proposed renovation complies with (a) structural stability (b) Fire safety (c) Energy efficiency and (d) accessibility. Failure on any of these will result in possible fines or demolition of the work. Short cuts are to be avoided.

Inspections of Work in Progress

While the work is underway it will be subject to inspections by the building control officers of the local authority. Their function is to ensure the work is being carried out in compliance with the planning permission granted.

Assuming that the inspectors find no issues on inspection, you will receive a certificate of completion. This is important and it is important to keep in a safe place as if selling the property later, it will be required.

The above is for straight forward home renovations, anything greater will require the involvement of your solicitor at an exploratory stage to discuss a planning application and likely agreement with your neighbours as to access, debis removal and possible noise issues.

BUSINESS  Handling Conflict in the Workplace

Tue, 19 Nov 2024 18:31:29 GMT

Differences between management and employees or among employees themselves can lead to issues spiralling out of control and ending up in avoidable expensive litigation.

In any working environment, there will be people who may not get on with each other. How management deals with such issues could, if handled badly, result in a negative atmosphere towards management. A complaint improperly handled by management can affect more employees than just the person involved in the complaint itself.

Grievance Procedure

Companies should seek their solicitor’s advice in the drafting and updating of their Grievance Procedure. Time and money spent on this can save the company a great deal more expense otherwise. Also, a complaint from an employee, if not dealt with fairly, can result in litigation creating a negative working environment and an ‘us’ and ‘them’ attitude between management and employees. This is time consuming, a work distraction and potentially harmful to the business.

If the internal disciplinary procedure fails to resolve the complaint, the employer will likely be faced with a complaint made against the company under the Workplace Relations Commission (WRC). Following correct internal procedures could avoid this development. Compared to litigation in the courts the WRC is quicker with its decisions and is much less expensive but proper internal procedures can avoid this.

So, consult your solicitor to ensure you have fair and robust procedures in your workplace to resolving disputes and complaints among staff.

ASSISTED DECISION MAKING

Tue, 19 Nov 2024 18:28:01 GMT

A case came before the Circuit Court to determine whether a family home could be transferred into the joint names of spouses where the transferor lacked capacity within the provisions of the Assisted Decision-Making Act, 2015.

A previous Circuit Court order had been made ruling that ‘the relevant person’ (RP), lacked capacity. Under the Act, RP’s children CD and EW (known as DMRs) were appointed ‘decision-makers representatives’ under the 2015 Act. Subsequently, the DMRs applied to the court to approve the transfer of RP’s family home into the joint names of RP and his wife.

The DMRs submitted to the court:
1. If the property was transferred, it would pass on the death of RP to his spouse automatically without the requirement to take out a grant of probate, and that ‘gifts’ of property are permitted pursuant to section 2 of the Act.
2. The RP’s past will, and preference was to transfer the property into joint names, but he was not able to effect same before the declaration was made that he lacked capacity. Their evidence was not given under oath in court.
3. It was also submitted that the court was obliged to give effect to the guiding principles in section 8 of the Act.

The presiding judge took a different view. He considered that a DMR’s powers were limited in scope and duration as necessary having regard to the interests of the RP, in accordance with section 39 of the Act. He stated:
‘Exceptional circumstances would be required in order for the court to regard it as appropriate to gift RP’s assets rather than ensuring those assets are used for RP’s benefit and for the benefit of those that RP has an obligation to maintain and to provide for”.

The judge further said:

‘While the gifting may be to a person who is indicated as a beneficiary in a will, the vista of that approach is not sustainable. A will is a declaratory document and has no force or effect until a person dies. In addition, a schedule of assets and liabilities is furnished before a grant of probate is extracted and creditors may or may not be affected by a lifetime transfer.”

The judge observed that the DMRs provided no evidence to show that RP had intended to create a deed of transfer in to joint names. The judge expressed his view in that:
“The court upholds the right of a person who lacks capacity to still retain control as far as possible over their property and affairs. It is important to note the appointment of a DMR, authorises that person to act as an agent for the RP with oversight of the Decision Support Service… as to the management of the property.”

The judge considered that a more appropriate interpretation of the Act was that the court was mandated to give “very serious consideration” to the transfer of RP’s property if it can be clearly established that it is the RP’s intention and preference.

In the judge’s view, there was no urgent need demonstrated to order the transfer of the family home, and the reason furnished was for convenience rather than demonstrated hardship.

On considering all the facts the judge refused the application.

In the matter of the Assisted Decision-Making (Capacity) Act 2015 and in the matter of AB Circuit Court (Judge John O’Connor) [2024] IECC 16.

ROAD SAFETY E-Scooters

Thu, 31 Oct 2024 18:24:03 GMT

With the increasing number of e-scooters on our roads, it is important for the users of these to be aware of the law and what offences may occur due to improper usage.

The following rules apply to their usage:

You must follow signals given by a Garda or school warden.
Gardaí can confiscate e-scooters ridden by people under 16.
Only one person can ride an e-scooter at a time.
E-scooters are not designed for carrying goods or passengers.
You must not park an e-scooter in no-parking zones like loading bays, accessible parking and charging bays.
You must not use your mobile phone while driving an e-scooter.
The e-scooter must be kept in a road worthy condition.
You must take-out third-party insurance if the E-scooter can travel at more than 25 KPH.

The Road Safety Authority (RSA) has a list of fixed charge offences that apply. A fixed charge fine is €50 for the lesser of offences but a fine of €2,000 if caught riding an e-scooter under the influence of drugs or alcohol.

An Accident Situation

It is similar to a car accident:
Report the accident to the Gardai giving all information.
Obtain details of other user, in a car accident that includes insurance details, registration plate number etc.
Keep record of any injuries.

Remember if you are injured riding an E-scooter, you will receive compensation from a motorist who is at fault. However, if you damage a car or injure someone because you were careless in riding your E scooter, you will be liable for damages to the car or perhaps an elderly person crossing the road. Unless you are insured, you may face substantial financial claim. Although you don’t need insurance if your scooter has a speed of under 25 KPH, it may be prudent to take it out anyway.

Consult your solicitor for advice on this new development on our roads!

EMPLOYMENT LAW Explaining the Unfair Dismissal Act, 1977 as Amended

Tue, 29 Oct 2024 18:29:51 GMT

This Act gives a procedure for employees who have been dismissed from their employment to take the case to a tribunal where they believe their dismissal was unfair.

Where such a situation arises, the case is heard in the Workplace Relations Commission.

Under the Act in an unfair dismissal case, the employee is presumed to have been unfairly dismissed and the onus is on the employer to provide proof that the dismissal was fair.

An unfair dismissal can arise in a multiple of situations such as: trade union membership, religious or political opinions of the employee, discrimination, a member of the traveller community, reasons of pregnancy, breach of a legislation right, unfairly chosen for redundancy, and making a protected disclosure.

Understanding ‘unfair dismissal’

If you carry out your work in accordance with the terms of your employment, then there should be no reason for you to be dismissed. However, situations can occur in the workplace that can cause issues to arise, and the Act is there to protect the rights of employees.

Where a company needs to make redundancies, there is a process to follow for the employer to ensure the right decisions are made. Losing one’s job because of redundancy does not confer a right to claim the termination of employment is unfair. It is only where a person has been unfairly selected for redundancy that a claim can be made.

Requirements for Unfair Dismissal

Claims must be taken within six months of the dismissal (there is an exception to this where there is reasonable cause for delay, but this must be established).
Claimants must have been in employment for one year (12 months of continuous service with the employee). There are also exceptions to this but that is best to discuss with your solicitor to assess the position and advise on.
Discrimination in the workplace can give rise to unfair dismissal in the following categories: gender, family status, age, disability, Religion, race, sexual orientation, membership of the Traveller Community, civil status.

Making a Claim

Consult your solicitor first to enable the merits of your case to be assessed. Your solicitor can then lodge a complaint on your behalf to the Workplace Relations Commission (WRC).

The WRC will then appoint an Adjudication officer, and a hearing date will be set for your case. For the hearing, witnesses can be called in support of your case.

If you succeed in your claim the WRC can order the employer to compensate you for the unfair dismissal or re-instate you in your employment.

In awarding compensation, the WRC will take into consideration loss of earnings since the date of dismissal and future loss of earning based on the length of time before you are re-employed.

In some cases, the employers do not attend the hearing, but the complainant still has to establish the facts before the Adjudicator. However, in most cases, the employer will be present with legal representation, so it is best to be prepared and have your own solicitor present your case.

COMMERCIAL Poorly Drafted Contracts

Mon, 30 Sep 2024 18:22:04 GMT

Solicitors can sometimes be asked to advise on contracts that are poorly drafted. This can be where businesspeople draft their own contract to document a deal then something goes astray on the deal and the contract is sent to the solicitor either to interpret or resolve.

The standard rule in contract law is that the contract is interpreted against the party that drafted it, but this does not cover every situation.

Where the solicitor cannot fix the contract to the satisfaction of both parties it then falls to the court to interpret what the parties had agreed to.

The Irish courts have had in the past cases where the judges had to resolve some badly constructed contracts. Surprisingly, some old case law is still regarded as setting out principles to be followed. Such is the case in the very old case of The Moorcock [1889] 14 PD 64 which stated:

“…the law is raising an implication from the presumed intention of the parties with the object of giving to the transaction such efficacy as both parties must have intended that at all events it should have.”

Here the court is interpreting what the ‘presumed’ intentions of the parties were when making the contract. So, in effect, the court will imply a term into the contract to make sense of the contract and the intentions of the parties. These are known as Implied Terms.

A more recent case appears to take a harsher view on badly drafted contracts as in the case of Tradax (Ireland) v Irish Grain Board Ltd [1984] I.L.R.M. 471 where the judge said:

“It is not the function of the court to write a contract for parties set upon commercially equal terms; if such parties want to enter into unreasonable, unfair or even disastrous contracts, that is their business, not the business of the Courts.”

That’s like being abandoned by the courts! But most judges will seek to find and give effect to the intention of the parties by inserting an implied term.

So, the lesson here is always ask your solicitor for advice when commercially engaging with others to ensure that the proper intentions of the parties are included, and all the terms are set out and most important of all, the contract is properly executed where companies are involved.

LANDLORD & TENANT Statutory Renewal Rights

Mon, 30 Sep 2024 18:20:04 GMT

An interesting case came before His Honour Judge John O’Connor in Dublin’s Circuit Court on 23 July 2024 regarding the withdrawal by a tenant of their statutory renewal rights.

In this case, the tenants’ ten-year lease expired in August 2018, and they served the required notice of intention to claim a statutory renewal. The landlord and the tenants failed to reach an agreement on the terms of the renewal, so the landlord commenced legal proceedings in June 2019 to enable the court to determine the new tenancy terms.

From the date of the old lease expiring, the tenants remained in the property and continued to pay rent in accordance with the terms of the old lease that had expired. Under the relevant legislation the tenants were entitled to remain on the property under the terms of the old lease until the new lease was agreed.

In November 2022, the court case had not yet been heard but the tenants informed the landlord that they were withdrawing their statutory claim to a new tenancy, and they left the property on New Year’s Eve, 2022.

The question then before the court was whether the tenants were entitled to continue paying the old rent from the time their lease expired to the time, they left the property? The landlord claimed that the tenants should pay the market rate and argued the market rate would be a significant increase on the old rent.

The tenants argued that they were entitled to pay the rent under the old lease.

The judge ruled that the only statutory basis to allow a court to impose the market rent during the lapsed period would be if the Court were fixing the terms of a new tenancy – as that application had been withdrawn, that could not be done and accordingly the court found in favour of the tenants.

Landlords would be advised to take legal advice on such commercial leases as a tenant could take advantage of the legislation by staying on in a property for a longer period at a price below the market rate by the issuing of the statutory notice and then withdrawing it. In the case above there was no evidence of such actions by the tenants but it could be open to abuse by others.

Howard and Others v Crown Paints Ireland Ltd [2024] 10 IECC 10.

CONTRACT ‘Small print’ in Estate Agents’ brochure helps overturn €350,000 award

Sat, 31 Aug 2024 17:59:40 GMT

The Supreme Court has overturned an award of €350,000 made to a developer who purchased a property only to find out it was 20% smaller than advertised.

In the case of Walsh v Jones Lang LaSalle Ltd [2017] IEHC 38 the Supreme Court was split into making a tight 3-2 majority decision over whether the disclaimer contained in a brochure was enough for an estate agent for the mistake in size described.

The case involved the plaintiff suing the estate agents of the vendor on the basis that he suffered rental income loss because of the incorrect description of the size of the property in the brochure.

The High Court ruled in his favour, but the defendant appealed on the basis that it had no duty of care towards the purchaser.

In its appeal the Supreme Court focused on a disclaimer in the brochure’s small print that stated every care was taken in its preparation, but the intending purchaser should ‘satisfy themselves as to the correctness of the information given’.

This disclaimer became integral to the court’s analysis as to whether the relationship between the purchaser and the vendor’s agent was sufficient to create a duty of care.

Generally, the law does provide for compensation because of a negligent but innocent misstatement. However, if there is a duty of care between parties then liability can be attributed to a party.

In this case the court did not agree that there was a duty of care between the parties, and there was no assumption of responsibility on behalf of the estate agent in relation to the task of providing accurate measurements to the purchaser.

The dissenting judges disagreed and held that a duty of care should be imposed, as it was the practice of purchasers at the time to rely on brochure measurements without independent verification.

INTELLECTUAL PROPERTY Infringement

Fri, 30 Aug 2024 18:18:07 GMT

Once a person or company has a registered patent, trademark or copyright, it is quite easy to keep track of any possible infringement. Thanks to the Internet, the first place to start a search is a simple google search. All these can also be searched on relevant databases as they are a matter of public record.

If a possible breach is notified by way of contact, then it is vitally important to act without delay and gather as much information as possible on the infringement. If after doing the searches yourself without finding any result, then ask your solicitor to conduct the research. It is possible the infringer has taken steps to avoid detection. The patent offices will also assist in searches. Other sources are publications.

While monitoring competitors is a natural exercise in business for pricing etc you should also check how they are promoting their services to see if there is anything close to passing-off or whether their products are much too similar to the products you have already patented.

Self-policing to protect your IP can save you money but only if you can catch them early.

WILLS Making a second will for assets in foreign countries

Fri, 30 Aug 2024 18:12:47 GMT

If a person has property outside of Ireland, it is common practice for them to make a second will so that this foreign property can be administered easily after their death.

The reason for doing so is that all countries will have their own succession laws governing the lands, which can be at odds with our laws in Ireland.

This is an exception to the general rule that a person cannot have more than one valid will in existence at a time.

Wills made in this jurisdiction will generally contain a revocation clause revoking all former wills and testamentary dispositions. Therefore, it is important to be mindful of this if making a foreign will and limit its contents solely to the property contained in that country so conflict can be avoided.

LITIGATION Judges must step aside from hearing a case if there is any hint of bias

Fri, 30 Aug 2024 18:04:00 GMT

A judge is expected to be entirely impartial when hearing a case and recuse himself if there is any sign or suggestion of bias between them and a party to an action.

This principle was evident recently in a case before the Court of Appeal, where President Ryan recused himself from hearing a matter involving the property developer Sean Dunne.

The reason for this was that the judge had bought a house from Mr Dunne over 20 years ago and had once met him.

The President believed that this link, though tenuous, was enough to require him to step aside from hearing the case and adjourn it.

Multiparty Litigation in Ireland: the “test case” procedure

In Ireland, we currently have no formal procedures to allow for “class actions”, unlike other countries such as the USA.

A class action will arise in a case where there can be hundreds of plaintiffs, who are all victim of an act of ‘mass harm’.

An example of this may be when a company pollutes a water supply, which harms a large number of people.

However, in Ireland we have failed to follow the lead of other countries in adopting a formal procedure for multiparty actions. Instead, in cases where there are multiple plaintiffs, the action will usually proceed by way of what is termed the ‘test case’.

There is no legislative basis for the test case process, but it has developed into the de facto procedure to be followed by multiple litigants who share a common case or issue to be tried in Ireland.

In such circumstances one case will be selected as a ‘test’ to be tried first, while the other cases are paused until the test case has been determined.

The test case procedure has been used frequently in Ireland on a wide range of matters, including cases of financial misspelling, pyrite cases and cases taken against the State for breach of a European Directive or constitutional rights.

In order to commence proceedings and proceed by way of a test case, each claimant must institute their own individual claim and then one party will proceed to trial.

The resulting decision will become the benchmark for the ones that follow.

The test case procedure, as opposed to the multiparty action practiced in other countries, has received much criticism as being slow, expensive and a waste of resources.

A paper of recommendations was drafted by the Law Reform Commission but to date this area of law awaits reform.

Notices for Particulars: what you are entitled to and what you are not

In any action where you are unsure of the case that the other party is going to make at trial, you may serve your opponent with a ‘Notice for Particulars’.

This is a list of questions that arise from your opponent’s legal pleadings which they are required to reply to.

Though a useful piece of artillery in your legal armoury, over time the Notice for Particulars has evolved into a tactic to frustrate an opponent by delivering pages of wide-ranging questions to illicit information and evidence one is otherwise not entitled to.

Especially in personal injuries actions, Defendants have adopted the practice of serving pages of standardised Notices for Particulars. Such tactics are considered to be oppressive and have received much judicial criticism over the years.

Here are three of the key principles that apply to Notices for Particulars:

The particulars are limited to matters in the pleadings. In personal injuries actions, this means the other side can only ask you about issues raised in your Personal Injuries Summons or Defence.
The particulars are only meant to clarify issues between the parties so that they know the case they have to meet. If a party knows the broad outline of the case they are to meet, further particulars will not be necessary.
Particulars should also not be given when the other party is seeking to find out details of the evidence that is to be relied on at trial.

Examples of regular particulars asked for (but which should not be replied to) include requests for copies of documents or details of witnesses.

Even though the Courts have regularly stated that such items are outside the scope of particulars, they are still regularly asked for by practitioners in personal injuries actions.

Despite this judicial criticism, this practice does not look like it will reform any time soon.

PERSONAL INJURY Fall on Council Pavement

Wed, 31 Jul 2024 17:58:20 GMT

The plaintiff was walking her pets in November 2018 on the pavement when she slipped or tripped and fell onto the ground.

As a result of her injuries, she was hospitalised for five days. She had injuries to her head but not serious though scarring was left there. She also injured her wrist which had largely recovered and also injured her shoulder where she still had ongoing joint issues.

The council carried out works on the pavement in 2019 thus making it harder to determine the state of the road at the time of the accident. The only picture the court had of the accident site was a Google photo of 2009. This photo, it was contended by the plaintiff, showed that there was a slope on the path.

The plaintiff claimed that the council ‘failed to properly design/and or repair the footpath, thereby allowing water and leaves to accumulate and present a danger to pedestrians.'

A retired garda gave evidence in support of the plaintiff that the footpath was in poor state with cracks and bits of concrete missing. He said he had previously seen leaves at the accident place and that in winter this was commonplace.

The judge said that the plaintiff was in effect asking the judge to accept that the council’s repairs in 2019 were in fact to fix the defect that caused the accident.

The council said that the path was there for 50 years and repairs are perfectly normal. In regard to the ‘slope,’ the council submitted that it facilitated buggies and wheelchairs and was an acceptable design.

The judge found the plaintiff to be an honest witness but on considering past court decisions, she stated that local highway authorities are not responsible for leaving public roads or footpaths in improper repair but are liable where they do something to create a danger. She said the plaintiff had to prove that the council created a danger and was therefore guilty of misfeasance. (Misfeasance is the improper performance of a lawful act, resulting in harm or injury to another person or entity).

The judge ruled that while the council constructed the path, she could not find it created any danger and dismissed the case.

Long v Tipperary Council High Court (Jackson J) 9 July 2024.

MISAPPROPRIATION OF MONEY Undue influence on Dementia Parent

Wed, 31 Jul 2024 17:57:08 GMT

From 2014, the deceased woman had been unable to manage her own affairs and one of her sons took charge of her care and decision-making. However, his three siblings became concerned about the manner in which he was looking after their mother. This included the discharge of their mother from hospital against medical advice. Having been made a ward of court, the deceased was transferred to a nursing home.

In 2016, the nursing home became concerned about the defendant and sought an injunction to restrain the defendant from interfering with other nursing home residents and to seek supervised visitation. The defendant breached the court orders and the nursing home successfully sought orders for his attachment and committal in November 2016.

In April 2018, the deceased died leaving an estate of over €6 million to her children and appointing the defendant as her sole executor and trustee of her Will. The defendant was bequeathed the deceased’s home and the entire shareholding of the family company.

In 2020, his siblings applied successfully to have the defendant removed as executor of their mother’s Will. The court gave liberty to the plaintiff solicitor to apply for a grant of administration in their mother’s estate.

Later, there was a dispute about the construction of their mother’s will which resulted in the removal of the defendant as trustee of the Will.

Facts began to emerge about financial dealings by the defendant in his late mother's financial affairs. It was discovered that in 2015, the defendant had opened a joint account for himself and his mother and over 2015 and 2016, the defendant had transferred €192,000 from that joint account to his own account.

The matter came before the court and the plaintiff sought declarations that the defendant had unlawfully set up the joint account when his mother suffered from dementia and that he had used this account to transfer monies to his account for his own use. It was also claimed that their deceased mother had acted under undue influence of the defendant and that his actions were unconscionable.

The High Court judge considered the medical evidence of the deceased and the series of ATM withdrawals from the joint account and these lacked documentation or invoices or receipts to support the withdrawals.

The High Court judge found that the defendant was not a credible witness, noting that he denied that his mother suffered from dementia despite the convincing evidence to the contrary.

The judge considered the jurisprudence of undue influence noting the special relationship of parent and child and that the deceased had placed a significant degree of trust in her defendant, son. Accordingly, and in the circumstances of the facts in the case, the judge ruled that the presumption of undue influence had not been rebutted by the defendant.

The judge ruled that there was no necessity to set up a joint bank account, noting that none of the amount withdrawn had been used for the deceased’s benefit.

Consequently, the court ruled that the declarations sought would be granted and the defendant was ordered to make full repayment of funds to the estate.

McNamara v Horgan (No. 2) [2024] IEHC 426.

PERSONAL INJURIES False Claims Can Lead to Prison

Tue, 18 Jun 2024 08:22:15 GMT

PERSONAL INJURIES False Claims Can Lead to Prison

The courts are dismissing more frequently personal injury claims which they suspect are
false. In more recent times they are also more inclined to refer the plaintiff to the Director of Prosecutions to be charged with making a false claim.

In a prosecution before the Circuit Court, the defendant, aged 74, was charged with having made multiple false personal injuries between September 2012 and May 2014 to which she pleaded guilty. In the six false claims she made the compensation she received amounted in total to €28,310. Not all the claims were made in her own name but in a false name.

The defendant had a previous conviction for a similar offence for which she received a three-year suspended sentence in 2019.

The Garda National Economic Bureau investigated the multiple claims made by the defendant after they had been contacted by an anti-fraud specialist which led her to being charged.

The Gardai searched the defendant’s home under a search warrant in 2019 as well as her solicitor’s office where six claim files in the name of Margaret Mongan were seized along with a separate injury claim file in the defendant’s name, dating from 2006.

The defendant pleaded guilty to the charges. Her defence counsel submitted that she could not have made the claims without inside knowledge of how the system works.

The judge in passing a sentence of three and a half years suspended the final 18 months having regard to the defendant’s health.

Some litigants are paying a high price in legal costs by exaggerating their claims but now those who seek to mislead the courts by false claims face the prospect of jail.

DPP v Winnifred Lawrence Circuit Court (Her Hon. Judge Pauline Codd) 16 May 2024.

COMPANY LAW Directors’ Loans

Tue, 18 Jun 2024 08:21:13 GMT

COMPANY LAW Directors’ Loans

The Companies Act, 2014 places a bar on companies being permitted to give loans to their directors.
The provision is contained in section 239 but there are a few exceptions to this section. The exceptions apply where the value of the loan does not exceed 10% of the company’s assets or where the company opts to apply for inter-group loans.

Penalties under the Act
Under the Companies Act 2014 Category 2 offences carry specific penalties.

Summary Conviction:
If someone is found guilty of a Category 2 offence and convicted summarily, they can face:

A class A fine (the specific amount may vary).
Imprisonment for a term not exceeding 12 months.
Both fine and imprisonment.

Conviction on Indictment:
If the conviction occurs on indictment, the penalties are more severe:

A fine not exceeding €50,000.
Imprisonment for a term not exceeding 5 years.
Both fine and imprisonment

Duty of Auditors
Company auditors must notify the Corporate Enforcement Authority (CEA) where on carrying out an audit they discover information where they believe that directors may have breached section 239.

Protection of Creditors
The purpose of the Section is to protect the company’s creditors, so if directors are in any doubt about their proposed actions or if they qualify under the exceptions, they should consult with their solicitors. If the company’s trading position is delicate or if an insolvency situation is possible, then directors taking loans from the company could face serious consequences.

Conclusion
If directors are in any doubt about taking out a loan from a company regardless of the company’s financial position, they should consult their solicitor. It will be money well spent.

PROBATE Role of Executor

Tue, 18 Jun 2024 08:17:56 GMT

PROBATE Role of Executor

If you are asked to be an Executor in a Will or discover you are appointed as one, there are prescribed duties to be undertaken. Depending on the Will, thiscan be straightforward or quite complex and time consuming. The solicitor acting for the deceased, will provide advice and guidance.

Put simply, the main function of an Executor is to gather all the deceased’s assets, pay off their debts, and then distribute the balance in accordance with the Will. This is called the ‘administration of the estate.’Usually, a Will will have more than one Executor, so the functions to some extent are shared. While in some cases the beneficiaries will be easily identified, there will be cases where a beneficiary may be harder to find but nonetheless, all beneficiaries must be located.

If, for whatever reasons, you do not wish to be an Executor, discuss this with the solicitor. In this circumstance, the other Executor or Executors will perform the role, and you can renounce your position as an Executor.

Obtaining a Grant of Probate

The first step is to obtain a Grant of Probate. The solicitor, in coordination with the Executors, will seek to extract this from the Probate Office. This document is very important as it empowers banks, brokers and other entities to hand over assets to the Executor's solicitor and authorises a sale of the deceased's property by the Executors. These entities would refuse to do so unless there is a Grant of Probate.

To obtain the Grant of Probate, the executors must complete a tax form that sets out all the assets and liabilities of the deceased person. Once all the required information is collected for the Grant of Probate, it is submitted to the Probate Office. There is no set time for the processing of the grants, it can vary depending on the workload in the Probate Office and the complexity of the application, but an estimate would be four to six months. The application can be expedited in limited circumstances, if there is an urgent matter to be dealt with such as a sale of the deceased's property that has been agreed.

Executor’s Duties
Some of the matters that an Executor may have to deal with are:

Jointly owned assets like a family home or business. These revert to sole ownership of the surviving joint tenant on the death of the other joint tenant;
Pension and insurance;
Assets owned outside Ireland;
Dealing with Revenue Commissioners and income tax of the deceased;
Insuring assets until they are sold or vested in the beneficiaries;
Challenges to the Will , which may potentially involve court application;
Objections to your appointment as an Executor;
Keeping a record of all dealings of Executors;
Documenting and lodging all funds realised to the Executor's account and paying the funeral and testamentary expenses such as funeral costs before distributing the net proceeds to the nominated beneficiaries.

If in any doubt about your role as an Executor, ask your solicitor for advice.

EEMPLOYMENT LAW Dismissal for Misconduct: Avoiding the Pitfalls

Fri, 31 May 2024 16:44:18 GMT

EMPLOYMENT LAW

Dismissal for Misconduct: Avoiding the Pitfalls

Employers are entitled to dismiss workers who are guilty of misconduct but, surprisingly, a large number of employers have rulings made by the Workers Relations Commission (WRC) ordering compensation be paid to their employees because they failed to follow set procedures for the proper dismissal for misconduct. These errors by employers can be avoided.

The principle of Fair Procedures is where many employers fail.

Where an incident of misconduct arises, the employer should carry out an investigation of the incident or incidents. The purpose of the investigation is to establish the facts. The employee who is the subject of the investigation must be invited to an interview to give their version of events.

The Investigation Process
The first matter to be decided on is who conducts the investigation. To avoid being challenged later, careful consideration should be given to this. A suggestion would be to ask your solicitor to fulfil this role.

The employee who is the subject of the complaint is entitled by law to be represented by a solicitor, union representative or just a friend or work colleague. A timeline should be set to investigate and conclude the investigation. In any subsequent legal proceedings or appearance before the WRC, these procedures will be scrutinised, so it is vital that a properly conducted investigation has been carried out beforehand.

The person conducting the investigation will:

Explain the process and reason for the investigation.
Inform the worker of the complaint being made against him/her.
Seek cooperation in confidentiality of the process from the parties involved.
Agree terms of reference with the employer and worker.
Acknowledge the right of representation of the worker.
Interview all parties involved and or witnesses.
Examine any documentation relevant.
Take minutes of all meetings of the investigation.

Write a report with a conclusion to the investigation and give a copy to the employer and worker.

Follow these steps and a subsequent claim for unfair dismissal on grounds that Fair Procedures were not followed will very likely fail.

A critically important detail is the choice of the investigator. That person must be fair and impartial so they cannot have had any previous dealings with the worker where it may be claimed the investigator was biased.

If the outcome of the investigation finds in favour of the employer, the employer then can decide to discipline the worker or in cases of serious misconduct, dismiss the employee. But the employer must give the worker the right of appeal first. This must be in writing with a set time limit.

Dismissing an employee can be very costly for a company and especially a small company, so it would be prudent to seek the advice of your solicitor such a move will be money well spent.

INHERITANCE TAX/WILLS Payment of Tax

Fri, 31 May 2024 16:39:59 GMT

INHERITANCE TAX/WILLS Payment of Tax

Gifts or inheritances fall under Capital Acquisitions Tax (CAT) and where a person receives one of these, then tax is applicable. However, there are tax-free thresholds or allowances which can reduce the amount of tax to be paid.

The rate applicable to CAT in Ireland currently is 33%.

The tax-free thresholds depend on the relationship the person in receipt of the gift or inheritance had with the deceased person e.g. father/son, uncle/ nephew etc.

Children of the deceased can receive up to €335,000 before any CAT tax becomes payable. The threshold is much reduced for other relatives such as parents, siblings, nephews, and nieces as well as grandchildren. The CAT threshold here is only €32,500. Outside of these two groups, the threshold rate is €16,250.

A point to note is that the thresholds apply over a lifetime and any gifts / inheritances you have acquired over your lifetime are aggregated for tax purposes and, if you exceed your allowance, are assessed to CAT.

A gift can be made during the lifetime of the person giving the gift, so it is of utmost importance that legal advice is taken to ensure compliance with the law and that no more tax is paid than is required. An annual gift of € 3000 to a child is tax free for example.

Careful tax planning, where a person pays less tax is not a crime, it is being prudent and within the law.

LITIGATION Suing an Association

Fri, 31 May 2024 16:36:58 GMT

LITIGATION Suing an Association

There has been a general rule in law for some time that a member of an association or club cannot sue that entity because
in effect, they are suing themselves.

A case came before the High Court on 10 April this year where the claimant had incurred serious personal injuries
while playing a game of rugby with her local club seven years ago. She issued legal proceedings against the Irish
Rugby Football Union, Tuam Rugby Football Club, and several trustees and officers of the Tuam club. She sued for
alleged negligence and breach of duty of care arising out of the injury which happened when she was in a lineout
collision during a game in January 2017.

All the defendants denied the claim. They asked the court to decide on the preliminary issue of whether the plaintiff
had the right in law to issue proceedings against a club of which she was a member or failing that, they asked for
the court to dismiss the plaintiff’s case.

Lawyers for the plaintiff argued that it had not been established whether the plaintiff had been a member of the association
at the time of the accident and that this could only be established from evidence during the trial. It was claimed her
membership subscription had lapsed due to nonpayment of the sum due.

The High Court judge declined on both counts so the case now will be listed for hearing and a definitive judgement on suing
your own club will be keenly anticipated.

Carmel Creaven v Irish Rugby Football Club and Others High Court (Ms. Denise Brett) 10 April 2024.

BUSINESS LAW What is Due Diligence?

Thu, 23 May 2024 21:19:37 GMT

BUSINESS LAW What is Due Diligence?

Whether you are buying a business or selling your own business, due diligence is an essential step that must be taken in any business acquisition. This process is the risk assessment of the business. Whether buying or selling a company, do not undertake this on your own, consult your solicitor.

Essential Points

What comes under scrutiny in this process are any financial, legal, commercial, or reputational risks the target company may be exposed to. The person conducting the due diligence will be seeking to confirm that the state of the business is as presented and that there is no concealed information that could affect the value of the business or indeed undermine it. The legal due diligence will look at any binding contracts the company has entered into, whether there are any potential legal actions that could be taken and that the company is compliant with legislation. The financial due diligence will assess the company's accounts to include its balance sheet and tax liabilities.

The reputational due diligence will explore the company’s reputation in the industry it is working in and to find out if there is anything a buyer should be concerned about.

The time involved will depend on the size of the business. Obviously, the bigger the company the longer it will take. But the process is important for the buyer as it gives them comfort that no surprises will emerge after the deal is completed for which, as owner, they may find themselves liable.

Your solicitor will have a checklist for the process so everything will be covered. In a way due diligence is like insurance, if properly done, the business you purchase will be exactly as it was presented to you, and you will not have the worry of any issues or problems presenting themselves that could threaten or damage the business.

PERSONAL INJURY Time Limits

Thu, 23 May 2024 21:18:43 GMT

PERSONAL INJURY Time Limits

The general rule is that claims must be made within two years of the date of the accident. However there are exceptions to that, namely (a) if the injured party is a minor then the two-year period starts on their 18 ^th birthday (b) delayed knowledge of the injury, as it can often happen that the injury caused by the accident may not become apparent until some considerable time after the accident (c) if the injured party was incapacitated, for example, in a coma. It is important to note that the two-year period applies to the actual issue of proceedings and not contacting your solicitor.

When in discussion with your solicitor it is important not to exaggerate the injury, so the choice of court is important. If you take a case to the High Court, where the legal costs are high, if the award of damages is under the jurisdiction of the High Court, namely €75,000, then the court will only award legal costs on the Circuit Court scale. This will leave you with a shortfall in legal costs and it could in fact exceed the actual award. This happened in a recent case where the case was taken in the Circuit Court, the personal injury award to the plaintiff was €8,000 and the court awarded costs on the District Court scale which left the plaintiff with a legal bill more than the award (Nolan v. The County Registrar for the County of Waterford & Others [2024] IEHC 253). That case was appealed to the High Court by way of Judicial Review, but the High Court confirmed the decision that the award of legal costs on the lower court scale of fees was correct.

So, choosing the right court is especially important as is not to exaggerate the injury.

Once proceedings are issued there is no time limit for a conclusion. It helps to have all your information, documents, witnesses, medical receipts, dates etc ready for the solicitor to proceed. It is possible the other side (defendant) will seek to delay the case, and this is a matter which your solicitor can attempt to fight back on but in reality, there is not a lot that can be done except in cases of excessive delays.

So, be patient and follow the advice of your solicitor, it is in their interest too that the case is heard as soon as is possible.

DOGS Owner’s Responsibilities

Thu, 23 May 2024 21:16:36 GMT

DOGS Owner’s Responsibilities

We all love our pets but along with ownership comes a responsibility to make sure they do not cause injury to others.

The law is clear on this and is covered by the Control of Dogs Act, 1986. This provides strict liability on owners for injury or damage caused by their dogs.Strict liability means that the owner of a dog shall be liable for damage caused in an attack on any person by the dog and for injury done by it to any livestock.

Dog owners in areas in close proximity to farmlands should be particularly vigilant about minding their dogs at night to prevent them from roaming onto farmlands and disturbing livestock or worse killing sheep.

Section 9 of the Dogs Act states:

(2) If a dog worries livestock, the owner, or any other person in charge of the dog shall be guilty of an offence unless it is established that at the material time the dog worried the livestock for the purpose of removing trespassing livestock and that having regard to all the circumstances the action was reasonable and necessary.

(3) A person who is guilty of an offence under subsection (2) of this section shall be liable on summary conviction to a fine not exceeding £500, or to imprisonment for a term not exceeding one month, or, at the discretion of the court, to both such fine and such imprisonment.

In making such a claim against a dog owner, it is not necessary to show that the dog had a previous mischievous propensity, that is, the owner had knowledge of such

previous behaviour of their dog. The offence committed is all that is required under the law. As the liability of the owner is ‘strict’ it is not an excuse to claim it was

an accident or the owner did not realize the dog was capable of being aggressive.

Dogs must always wear a collar that bears the name and the address of the owner inscribed on it or on a plate, badge, or disc. Failure to have identification on a dog can result in an on-the-spot fine issued by a dog warden.

Certain breeds of dog, including strains and cross breeds, must be muzzled whenever they are in a public place and must be kept on a short strong lead (under two metres) by a person over 16 years who is capable of controlling them. Such breeds include American Pit Bull Terrier, Bull Mastiff, Doberman Pinscher, English Bull Terrier, German Shepherd (Alsatian), Japanese Akita, Japanese Tosa, Rhodesian Ridgeback, Rottweiler, Staffordshire Bull Terrier and Bandog. This also applies to strains or crossbreeds of these breeds

CONTRACT Breach of

Tue, 30 Apr 2024 18:12:51 GMT

CONTRACT Breach of

A contract will set out the terms of the service to be provided or goods to be sold; so, it is very important that these are clearly set out and not stated in vague or ambiguous language.

A breach can occur if one party fails to perform his duties as agreed in the contract or does something not agreed or is not fulfilling his obligations. There are exceptions to unfulfilled contracts as set out below.

The question of liability then must be examined where there is a breach. The consequences of such a breach will determine the extent of the liability (damages) on the party at fault.

Here the contract and its terms will come under scrutiny. Was the contract legally enforceable? Was the contract executed correctly? What loss was suffered by the injured party?

A common breach, which can give rise to action for loss suffered, is the non-fulfilment of one or more obligations under the contract. However, the omission if minor may not be sufficient to declare a breach of contract by the offending party. The seriousness of the breach will depend on the terms of the contract and what impact the breach has in terms of damage to the injured party.

Where the breach is serious, the injured party can:
a) Claim fundamental breach of contract
b) Claim the contract no longer exists because the breach is so serious

Alternatively, the injured party could seek a court order of specific performance which compels the other party to fulfil the contract terms.

Defences to Breach of Contract
The party in an alleged breach can claim the breach is not as serious as claimed and offer to fix the breach/omission.
A party alleged to be in breach can claim in defence that the other party exerted threats or undue influence.

The contract could have been unenforceable such as in breach of public policy.

The contract may not have been properly executed.

Exercise of the Force majeure provision. This clause is standard in contracts. It can excuse liability for situations that were unforeseen and as a result beyond the control of the contracting parties.

Lastly, a party may claim in defence that the contract was ‘frustrated’. This occurs where a supervening event occurs without the fault of either party, and for which the contract makes no provision. The event must so significantly change the nature of the outstanding contractual rights and obligations from what the parties could reasonably have contemplated, so as to make holding them to its stipulations unjust. For example, where a concert had to be cancelled because of the Covid pandemic.

When entering a contract be sure to discuss it first with your solicitor to ensure it is a valid contract and not one that lands you in court.

PERSONAL INJURIES Burn Injuries to Newborn Baby

Tue, 30 Apr 2024 18:10:39 GMT

PERSONAL INJURIES
Burn Injuries to Newborn Baby

A child who is now seven years of age, who as a newborn baby, suffered a chemical-type burn after a wipe was allegedly left in her incubator at the Coombe Women and Infants Hospital when she was born in 2017.

It was claimed that she suffered a burn to her left flank, abdomen, and thigh when the wipe, containing a preparation of 2% chlorhexidine gluconate, was not removed from the incubator. It was claimed that the wipe was in the incubator for nine hours. It was claimed that the wipes are not intended for prolonged exposure to the skin. In this infant’s case, the wipe had been left attached to the infant’s skin for too long. It was also claimed that the wipe had not been used in accordance with the product’s guidelines and advice for such wipes.

The hospital denied all the allegations.

The newborn had been treated with antibiotics for seven days and was later transferred to another hospital for further treatment which included dressings and a Review by a plastic surgeon.

The court was told that the girl’s muscular-skeletal development had not been affected but in the future, she may require scar-releasing surgery when she gets older.

The hospital made a settlement offer to the parents of the child and they were satisfied with the offer of €320,000 which Mr Justice Paul Coffey of the High Court approved of on 9th April 2024.

LITIGATION On Death do Legal Actions Survive?

Wed, 17 Apr 2024 18:08:44 GMT

LITIGATION
On Death do Legal Actions Survive?

In short, ‘yes’ is the answer. This right to sue or be sued arises under the Civil Liability Act, of 1961. But there are actions outside this Act
that do not survive the death of the plaintiff or defendant. You should consult your solicitor to ascertain if your claim (or the claim of your loved one)
can still be pursued.

The personal representative of the deceased’s estate is the person who is sued or takes a case on behalf of the deceased's estate or family.
However, the same relief by way of damages will not be as high as if the plaintiff were alive. For example, a claim under personal injury
could have a provision for future pain and suffering so, obviously, this cannot apply where the person is dead!

Claims against the estate of a deceased person
Time here is very important. Cases being taken against the estate of a deceased person must be taken within two years of the death of the person.

Wrongful Death
Where the death occurred because of a wrongful act of another person, the personal representative of the deceased's estate can issue proceedings
against the wrongdoer. The personal representative is acting on behalf of the dependents of the deceased by way of compensation for their loss.

Only one action is allowed so all the deceased dependents and family come within one lawsuit. If there is no personal representative any
dependent can take the legal case. The type of compensation available for wrongful death is (i) special damages such as funeral
expenses (ii) compensation for loss and suffering that is mental suffering caused by the loss of the loved one (iii) financial loss caused directly by the death of the deceased, for example, if the deceased was the main income provider and their death will cause financial loss to dependents.

The courts do not take into consideration pension or life insurance policies in determining loss.

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

Wed, 17 Apr 2024 18:06:50 GMT

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

There are two ways of owning a property in Ireland: freehold and leasehold. With a leasehold, you own the building, but you own the land only for a certain number of years, whereas with a freehold you own both the building and the land upon which it is built.

What does freehold mean?
When you buy a freehold title, you become the legal owner of the land and the buildings (if any). You have complete control of the property and do not have to pay any ground rent or similar fees to any landlord or third party. In most cases, as freehold owner, you are also not bothered with any conditions or restrictive clauses that are typically seen in most residential leases.

Most houses in Ireland are freehold and since 1978 all new houses built in the country must be freehold and the old ground rents were, effectively, abolished. Obviously, although you own your own property, you must observe all planning laws and building regulations if you are developing it in any way.

What does leasehold mean?
When you buy a leasehold title or premises, you become the legal owner of the building, but you only have a tenancy perhaps for 99 years or more of the land under which the house is built. The land is owned by a landlord to whom rent must be paid. This might be a local authority, a private company or an individual and as he owns the freehold in the ground, he is known as your ground landlord to whom ground rent is paid.

The ground landlord leases you the right to use the land for a certain number of years and in most instances, gives you permission to build your house. Many years ago, ground rents were set at a certain rate say at IR £15 per year, but this amount was never changed, and inflation has turned it in to an almost trivial amount which most ground rent landlords then never bothered to collect.

The apartment schemes which are becoming more common in Ireland, are treated differently to most housing schemes.
Most apartments in Ireland are leasehold but the rent reserved, if any, is not a ground rent. The purchaser will be given a very long lease as this binds him and the other apartment owners to comply with various covenants leading to good neighbourly relations. So, each apartment in a block will have an owner. This person is the leaseholder. The land upon which the apartment block sits is owned by the “landlord” of the complex which is the Management Company made up of all the residents themselves. Owners are not entitled to buy out their freehold in apartment blocks as they are multi ownership complexes.

Leasehold considerations
Some people are wary of buying a leasehold property as they appear to be in some way less attractive than opting for freehold. However, this is a myth as long leases are perfectly acceptable and nowadays, most people who own a leasehold premises can, in any event, exercise their statutory right to buy the freehold from their landlord at minimal expense.

One of the most important considerations is the length left on the lease. Remember, leaseholds are given for a fixed number of years. After this, they must be renewed, often at the expense of the leaseholder unless he/she has taken steps to buy out the freehold. This means that a leasehold with less than 70 years or less left to run, may be an unattractive proposition. In fact, lenders may refuse a mortgage in these situations and usually insist that the applicant confirms he is entitled to purchase the freehold.

Another area any buyer or his solicitor should investigate is whether there are any other restrictions on the property contained in the lease. For example, lots of leaseholds state that you cannot extend the premises or change its use without the ground landlord’s consent. These kinds of terms and conditions are a nuisance to potential buyers and induce many owners to buy out the landlord’s interest by purchasing the freehold.

Buying out your ground rent
If you do decide to buy a leasehold, it is usually possible to buy out your ground rent. This would change the title from a leasehold to a freehold. You can do this via direct negotiations with the ground landlord, or, preferably, through the Ground Rents Purchase Scheme in the Land Registry whether you purchased your property before or after 1978.

Once the process is complete, you receive a ‘Vesting Certificate’. This should be registered with the Land Registry or Registry of Deeds. This is a dedicated unit in the Land Registry, and you do not need a solicitor to approach them although your solicitor is best placed to prepare the necessary forms required and to handle any queries raised on your behalf.

COMPANY LAW Shareholder Issues

Wed, 17 Apr 2024 18:02:34 GMT

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

Wed, 27 Mar 2024 10:45:29 GMT

MEDICAL NEGLIGENCE
Discovery of Post-Accident Medical Records

The plaintiff appellant was injured at the respondent’s livestock mart, when a bullock owned by a third party collided with his left leg. The respondent denied vicarious liability for the injury and claimed contributory negligence by the plaintiff as he was standing in a part of the mart where animals were kept and through which they moved. The plaintiff issued proceedings and four years later delivered updated particulars of the injury. The particulars claimed that the appellant’s lower limb pain was likely caused both by his soft-tissue leg injury and by a compression of the nerves in his lower spine.

The respondent sought discovery of the appellant’s medical records requesting five years pre-accident records in the first category, and five months post-accident records in the second category. There was no response to this request. The defendant then issued a motion for discovery of the records. The plaintiff/appellant responded by agreeing to provide the 5-year pre-accident records but refusing the post-accident records. The motion for discovery proceeded to the High Court for the post-accident medical records. The motion was successful, but the plaintiff/appellant appealed to the Court of Appeal.

The late delivery of updated particulars of personal injury alerted the defendant-respondent to the possible link to the appellant’s pre-existing back condition.

The court considered case law on a plaintiff’s right to privacy over his medical records and when that right should be waived when suing for damages for personal injuries. The court also noted that such a request should only be refused in exceptional cases.

The Court of Appeal noted the trial judge’s comment that post-accident records are “invariably crucial” to every personal injury claim was an over-generalisation, and that “there is no category of documentation that is invariably crucial in every case within a particular area of litigation”.
The court noted that only in a few cases did the courts accept that the availability of alternative means of obtaining information precluded obtaining discovery.

The court distinguished between where they accepted that the availability of alternative means of obtaining information precluded obtaining discovery from a situation where a party contends that alternative mechanisms for obtaining information should be relied upon in lieu of discovery, but then declines to engage with those mechanisms or repeatedly opposes the use of them.

The court dismissed the reasons put forward by the appellant in resisting the discovery order for post-accident medical reports and accordingly, dismissed the appeal.

Egan v. Castlerea Co-operative Livestock Mart Limited [2023] IECA 240.

PERSONAL INJURY Workplace Injury

Wed, 27 Mar 2024 10:41:23 GMT

PERSONAL INJURY
Workplace Injury

A lady who worked for a nursing home took an action in the Circuit Court for an injury she incurred while operating a dishwasher. She claimed that the dishwasher was faulty and that she developed a repetitive strain injury from loading and unloading the dishwasher. Her job was specifically dishwashing duties at a private nursing home in Blackrock, Co. Dublin.

She claimed that the machine she had to use was defective and required extra physical strength to load and unload the dishes. This had resulted in her developing a repetitive strain injury to the left side of her body.

She claimed that in September 2017, she developed pain symptoms in her neck, ribcage, and groin for which she had to take painkiller and anti-inflammatory medication. She further claimed that three months later her back had ‘given up’ to the extent that she was no longer able to do her job. She attended a medical specialist who diagnosed soft tissue strain. This injury has affected her life, and she can no longer enjoy her pursuits of the gym, cycling and hill walking.

The parties reached a settlement of €60,000 which was approved of by the judge. As she left her employment a few weeks after incurring the injury there was no claim for loss of earnings. The defendant nursing home had entered a full defence and made the settlement without admission of liability.

Curry v Nursing and Caring Services Ltd Circuit Court (His Hon. Judge Meehan) 14 February 2024.

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

Mon, 11 Mar 2024 22:56:10 GMT

PROPERTY

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

The courts have dealt in recent years with a large volume of cases brought by banks, and so-called vulture funds, where these lenders typically seek to recover either mortgage arrears or the property itself.

The Statute of Limitations states that any such action must be taken within 12 years from the date when the right of action accrues to the plaintiff and, if any later than that, their action will fail. Any acknowledgment of the debt or part payment by the borrower resets all these time limits back in the bank’s favour.

A much more rigid timeframe set out in the Civil Liability Act, 1961, allows a creditor only two years to initiate proceedings against a deceased person from the date of his / her death.

A recent Court of Appeal decision helps to clarify when a mortgage debt actually becomes due as this will start the time period running under the Statute of Limitations.

Most banks or lenders will not issue any proceedings for recovery of a mortgage debt or the property itself until the monies become due. But when exactly do the monies become due? Even if a borrower misses or defaults on a few payments, which does not mean all the monies then become due. There must be a full demand by the bank for payment before all sums become due and must be repaid by the borrower. In general, without a letter of demand for repayment by the bank, the lender will be prevented from taking any action any further.

Somewhat bizarrely, in the case under appeal, the bank’s mortgage deed stated that the death of the borrower was an act of default but, despite this clause, the deed also went on to say that on the occurrence of this event of default, the bank was entitled to make a demand for repayment of all outstanding monies and that, on the issuing of such demand, the monies then became due and payable to the bank.

In that particular case, the bank had not demanded the sums due either during the deceased’s lifetime or up to three years after his death, but when they did finally issue a letter of demand several years later, the monies then became due and payable. The court therefore held that the bank’s claim was not statute barred as they had issued a demand, although belatedly, and time and the Statute of Limitations only began to run from the date of issue of the demand when the monies became due.

As this Appeal Court case has not been appealed further to the Supreme Court, it can safely be regarded as current law regarding the Statute of Limitations and mortgage actions to include actions taken against deceased borrowers.

It appears the courts will only allow mortgage possession cases where the bank has issued a full demand to the borrower so rendering the monies due and owing and this starts time running against the bank.

The case also clarifies the position as to deceased borrowers and their estates. If the banks have not issued any demand before the borrower’s death, this will not prevent them from issuing a demand later and suing the estate for monies owed.

Bank of Ireland V Janet Matthews [2021] IECA 176

ELDERLY LAW Assisted Decision Making: Court Appoints Support Official from Outside the Immediate Family of the Elderly Person.

Mon, 11 Mar 2024 22:50:05 GMT

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.

PERSONAL INJURIES Establishing Negligence is Vital in Personal Injury Cases

Mon, 19 Feb 2024 10:03:23 GMT

PERSONAL INJURIES

Establishing Negligence is Vital in Personal Injury Cases

The High Court considered a case where a pedestrian, who was struck by a car, had his personal injuries claim against the driver dismissed for failure to prove negligence.

Had the pedestrian followed The Rules of the Road the accident would never have occurred.

The pedestrian was crossing a national primary road when he was struck by a car. The accident happened at around 8 pm on a September evening on a road with a speed limit of 100km/h.

The pedestrian suffered injuries and from panic attacks and insomnia. He sued for personal injuries, stating the collision was caused by the negligence and breach of duty in the care, management or driving of the defendant’s car. The defendant denied any negligence stating the pedestrian failed to keep proper lookout, failed to allow the car to pass before attempting to cross the road; walking into oncoming traffic; placing himself in danger; causing the accident by walking on the public highway; failing to wear appropriate reflective clothing; and failing to carry a torch “during hours of darkness”.

The judge referred to the appropriate application of The Rules of the Road and found on the balance of probabilities, that the accident occurred after sunset and shortly before dusk which was a period of notoriously difficult visibility for motorists. The pedestrian was not wearing suitable visibility clothing, the part of the road he was on had no street lighting and he crossed the road on a diagonal, with his face slightly averted from traffic approaching on the eastbound lane, despite there being a bend in the road to the east nor did he have the right of way in attempting to cross the road. Therefore, the court ruled that the actions of the pedestrian caused the accident and not any negligence of the driver.

FAMILY LAW: A Divorce Decree Does Not Prohibit the Parties from Continuing to Live Together If They Have Little Other Choice

Mon, 19 Feb 2024 09:59:43 GMT

FAMILY LAW

A Divorce Decree Does Not Prohibit the Parties from Continuing to Live Together If They Have Little Other Choice

Parties who agree to separate, following marital difficulties, usually live in separate accommodations after any legal documents are completed. It would have been considered odd, up to relatively recently, if they continued to live under the same roof having legally separated.

In today’s world, this no longer applies as it is often difficult, if not impossible, for a spouse, following separation to purchase another property to live in, and which comes with an additional layer of household expenses.

Some couples who separate have little option but to continue living together in the same house although under totally different living arrangements. The parties may still share the same address but effectively live separate lives.

This may not be ideal, but the courts have recognised the fact of these arrangements and have not queried their legitimacy over the years. You can be legally separated from your spouse who continues to live in the room above you in the same house.

But what is the position of parties who are legally divorced from each other? Can the divorce be regarded as fully valid if they are living together at the same address, even if no longer in an intimate and committed relationship?

A recent High Court case answers this question with a resounding Yes.

In that case, the parties had agreed to continue to share the family home, even after the decree of divorce, as they lacked the resources to buy another property.

The court noted the unusual living arrangements proposed by the divorcing parties, but queried whether there was any good reason to justify it in refusing the decree of divorce. Any clause in the Divorce Act which suggested such arrangements were not possible, was not to be treated as a prohibition, but only a statement of what the normal position should be following divorce.

In a decisive moment in the judgement, the court stated that “ if a couple can be considered as living apart from one another, while living in the same dwelling, provided that they are not living together as a couple in an intimate and committed relationship, it is difficult to see any principled objection to a similar arrangement continuing by agreement after a decree of divorce is granted”.

The court found that the proposed living arrangements were brought about principally by the housing crisis and the difficulties that either party would likely face in securing alternative accommodation at an affordable cost.

An older case was referred to where the judge, in that case, was satisfied that in the same way two people can live apart, and still maintain a loving and committed relationship, two people could also live together without being in a marital relationship as everything depends on the intentions of the parties.

The living and other arrangements proposed by the parties were pragmatic, given the circumstances, and would likely minimise the stress and upheaval in the family the court found.

The court, therefore granted the decree of divorce applied for and made other orders in the terms of the settlement agreement.

R V M [2023] IEHC 748.

COMMERCIAL LEASES Forfeiture Clauses in Shop Leases

Mon, 19 Feb 2024 09:57:42 GMT

COMMERCIAL LEASES

Forfeiture Clauses in Shop Leases

Disputes between landlord and tenant are very common and are usually associated with failure to pay rent or other breaches of covenant. Most rent disputes end up in court, but it can take years before a landlord can secure a money judgement against the tenant or, more importantly, get an order for vacant possession. Many tenants, as a matter of strategy, delay the whole process even further.

A lot of tenants, however, fail to realise that a landlord can use the lease provisions to forfeit their lease and re-possess the premises within two weeks or thereabouts all without the need for any court application or order.

This forfeiture clause allows a landlord who is owed rent to demand his rent payment, usually within two weeks, and to legally re-enter the premises if he has not been paid by then. If necessary, the landlord can even break into the premises to re-possess the property and change the locks.

A tenant can apply himself to court to stop the landlord’s action. A tenant who has most of his rent arrears in hand will usually be allowed full relief by the court on handing over his rent payment. A tenant who has excuses only and no rent will likely lose his lease to forfeiture.

Most landlords are willing to come to an arrangement with tenants; however, some larger or institutional landlords prefer to take the forfeiture route because of its speed and low cost and particularly where there has been an ongoing saga of rent issues with the tenant.

So, a warning to all tenants: If rent arrears are allowed build up too much, be wary of the forfeiture clause in your lease, as the landlord can bypass the court and serve you with a 14-day notice to re-possess the premises in the event he is not paid his arrears.

Any tenant who receives such a notice would be well advised to consult a solicitor promptly either to broker a settlement with the landlord or to prepare a court application to try and have the landlord’s actions set aside.

FAMILY LAW What is a Prenuptial Agreement?

Fri, 02 Feb 2024 12:08:15 GMT

FAMILY LAW What is a Prenuptial Agreement?

These agreements are normally made prior to getting married but can also be made afterwards and if so, are called postnuptial agreements. They are generally entered where one party is considerably wealthier than the other and they wish to safeguard their wealth in the event that their marriage fails.

However, these agreements are not just for the wealthy. If a person marries later in life and was previously married, they can be used to ensure that children of the first marriage have their inheritance protected and they are often used where there may be a family business to protect against possible claims.

Where one of the parties to the marriage comes with significant debt, these agreements can protect the other party from becoming responsible for that debt in a divorce situation.

Always discuss with your solicitor if you are thinking of these agreements, do not draft your own!

INHERITANCE TAX What is the Position?

Fri, 02 Feb 2024 12:07:18 GMT

INHERITANCE TAX. What is the Position?

There are a number of categories that inheritance tax (or gift tax) falls under. The provisions for it are contained in the Capital Acquisitions Tax Act 1975.

If a person is gifting money there are three categories:

(i) a lifetime gift/inheritance to children of the deceased (of person giving a gift), parents or spouse. Here the gift is tax exempt up to €335,000 then it is taxed at 33%.

(ii) A gift to siblings, nephews, nieces, grandparents, and grandchildren, this too has a lifetime threshold but lower at €32,250.

(iii) Friends can receive a lifetime threshold of €16,250. All amounts above the threshold are taxed at 33%.

There are some defined exceptions to these provisions, for example:

(a) A dwelling house but here the beneficiary must occupy the house for a period of six years before becoming exempt from tax.

(b) Agriculture property: this exemption provides for a reduction of taxable value of the property by 90%.

(d) Charities, these are fully exempt from tax.

Advice from your solicitor is vital before making any gifts or intending to give money, property, or businesses in a Will. Tax is a complex area, and it is vitally important to get it right.

CONVEYANCING What is Involved.

Fri, 02 Feb 2024 12:05:54 GMT

CONVEYANCING. What is Involved

Self-conveyancing is a direct route to disaster. Property purchasing whether buying a home or a big commercial property is a major purchase and unless it is properly carried out, the cost of remedying any errors will be considerable.

Engaging a Solicitor for Conveyancing.

Conveyancing can be a complex area and often even a straight-forward looking transaction will sometimes develop issues after initial examination of the title. Here your solicitor, who is trained in property law, will trawl though all the necessary documents to ensure you get proper ownership or good title so that when you go to sell the property, no problems will arise which could well delay or even end your prospects of selling your property.

The Process

Your solicitor will be responsible for drafting the Contract of Sale. This is a legal document which sets out the terms of the sale/purchase. These are for example: purchase price; date of closing the sale and any other conditions the parties agree to which typically relate to mortgage approval, planning conditions and other more technical clauses which relate to title matters. This type of contract should never be drafted by a lay person and if it may render the contract unenforceable in the courts.

Proper Title

A vital role your solicitor will play in conveyancing is conducting searches on the property documentation to ensure there are no legal impediments on the property or financial issues that could impact on the ownership and/or value of the property. For instance, if there is a right of way over your property, you need to be aware of this and your solicitor will find this in his/her searches. Judgement mortgages can turn up on searches which means they must be dealt with and paid off or otherwise the new purchaser may be stuck having to pay them himself.

If the searches throw up any legal issues, then these have to be considered and agreed upon between the parties before any completion of the sale can take place.

Buying or selling a property is not like buying a car and of course the house or property could be extremely valuable. How can a layman draft a purchase deed which may have to recite an 1840s lease or apportion rent? Drafting the deed is a matter for the purchaser but any solicitor is likely to withdraw from a transaction where the buyer is representing himself as the buyer will simply not be able to process the transaction correctly and delay will be the order of the day. Finally, no insurance company will extend cover to a layman carrying out a conveyance and rightly so.

PROBATE Two Wills

Mon, 29 Jan 2024 12:01:57 GMT

PROBATE Two Wills

The deceased, James Brown, owned family lands in Co. Mayo. When he was 18, he emigrated to England then at 30 to Australia where he married and built up a successful plant and machinery hire business. He had very strong connection with his Mayo lands and visited it almost every year and stayed in a cottage he had renovated. There was evidence that he took an old-fashioned view on land, and that his Irish land should go to his son, Tony.

The deceased made a Will in 1985 where he left all his lands, Australian and Irish to his wife and Tony and any other children he might have. He subsequently had three more children. In 2000, he made an Irish Will dealing with all his Irish assets. In 2004 he made a further Will in Australia stating that he revoked all Wills previously made. However, it also stated that the Will was ‘intended to deal only with my estate in Australia and shall not affect any Will made by me in respect of my Irish assets’.

The question before the Irish court was whether the deceased had revoked his Irish Will.

The judge noted that the Australian Will was intended to deal only with his assets in Australia and would not affect any Will made in Ireland in respect of his Irish assets.

The judge noted the deceased widow, who was the sole beneficiary of the Australian Will, supported the view that the Mayo land should go to his son, Tony.

The judge saw it was clear that the deceased distinguished his Irish assets from his Australian assets and there was no evidence that he had changed his mind about leaving his Irish lands to his son, Tony, and that he did not intend to revoke his Irish Will with his subsequent Australian Will.

The judge admitted the Irish Will to probate.

In the Matter of James Browne, Deceased [2024] IEHC 13.

DEFAMATION Time limit to issue proceedings.

Thu, 21 Dec 2023 11:22:31 GMT

DEFAMATION

Time limit to issue proceedings.

There is a time limit of 12 months from the date of the defamation occurred, to issue proceeding for redress.

However, in a recent High Court decision from a Circuit Cou rt appeal the court considered whether the 12-month period can be extended (under s. 11(2)(c) of the Statute of Limitations 1957 as inserted by s. 38(1)(a) of the Defamation Act, 2009). The issue raised on the appeal was whether an application for an extension of time under that section can be made retrospectively outside the permitted extension period in respect of proceedings which have already been issued within the period.

The judge considered the facts of the particular case and case law on the matter and concluded that time could not be extended beyond the required 12 months. Consequently, it is especially important for people who believe they have been defamed to act without delay in seeking legal advice with a view to issuing proceedings within the strict time limit.

CONTRACT LAW Making a unilateral change to your company’s Terms and Conditions.

Thu, 21 Dec 2023 11:21:36 GMT

CONTRACT LAW

Making a unilateral change to your company’s Terms and Conditions.

A well-drafted set of terms and conditions will minimise the potential for disagreement and ensure that if your dispute ever does go to court that the agreement between the parties was clear from the outset.

However, for a contract of indefinite duration, many companies will wish to amend their general terms and conditions in response to market changes or business practices.

Sometimes such a contract will include a clause that will allow the company to unilaterally change. If yours do not, it may be worthwhile considering putting one in going forward.

Such clauses may seem unfair as it affords far too much bargaining power to the party in circumstances where even the most diligent customer is unlikely to have read the small print prior to agreement.

However, the EC (Unfair Terms in Consumer Contracts) Regulations 1995 do allow for such clauses to be enforceable in certain circumstances.

These regulations prevent a seller or company from relying on manifestly unfair contractual terms that they have imposed upon their customers.

The regulations provide that any contractual term will be regarded as unfair if “contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer”.

A unilateral amendment clause imposed by a seller may be deemed fair depending on the circumstances.

If the consumer contract is of indefinite duration and the seller or company is required to give the consumer reasonable notice of the changes, and the consumer is free to dissolve the contract at their behest, then the clause will likely be found fair and enforceable.

This ‘notice period’ is usually given in contracts as 30 days for a consumer to object to the changes upon being notified.

LITIGATION “Costs Follow the Event.”

Thu, 21 Dec 2023 11:20:35 GMT

LITIGATION

“Costs Follow the Event.”

The general rule for the awarding of the costs in litigation is “costs follow the event”, or to the point simply, the loser will pay both sides of the legal costs in an action.

However, cost orders are ultimately at the sole discretion of the court and this general rule may be departed if exceptional circumstances are met.

Some exceptions are provided for by the Court Rules in the form of ‘tender’ offers which can affect costs order negatively for a plaintiff if they fail to beat the tender.

Also, if a plaintiff does not succeed in all aspects of their claim, the court may apportion the costs between the parties if it is in the interest of justice to do so.

The threat of having a costs order against a party plays a massive role in litigation tactics, and exceptions to the general rule of ‘loser pays’ are limited. The motivation of a looming costs order can often be the difference between an amicable settlement and a fraught court battle.

Notices for Particulars: what you are entitled to and what you are not.

In any action where you are unsure of the case that the other party is going to make at trial, you may serve your opponent with a ‘Notice for Particulars’.

This is a list of questions that arise from your opponent’s legal pleadings which they are required to reply to.

Though a useful piece of artillery in your legal armoury, over time the Notice for Particulars has evolved into a tactic to frustrate an opponent by delivering pages of wide-ranging questions to elicit information and evidence one is otherwise not entitled to.

Especially in personal injuries actions, Defendants have adopted the practice of serving pages of standardised Notices For. Such tactics are considered to be oppressive and have received much judicial criticism over the years.

Here are three of the key principles that apply to Notices for Particulars:

The particulars are limited to matters in the pleadings. In personal injuries actions, this means the other side can only ask you about issues raised in your Personal Injuries Summons or Defence.
The particulars are only meant to clarify issues between the parties so that they know the case they have to meet. If a party knows the broad outline of the case they are to meet, further particulars will not be necessary.
Particulars should also not be given when the other party is seeking to find out details of the evidence that is to be relied on at trial.

Examples of particulars regularly asked for (but which should not be replied to) include requests for copies of documents or details of witnesses.

Even though the Courts have repeatedly stated that such items are outside the scope of particulars, they are still asked for by practitioners in personal injuries actions.

Despite this judicial criticism, this practice does not look like it will reform any time soon.

PERSONAL INJURIES Sporting Activities

Thu, 21 Dec 2023 11:18:27 GMT

PERSONAL INJURIES

Sporting Activities

Participating in a sport can by its nature mean that there is an acceptance of injury if one is so unfortunate to be injured. Different sports can vary in the risks invo lved, for instance, an amateur jockey takes on greater risk than a golfer.

In contact sports, such as rugby, the risk is obvious but there are rules and if an injury occurs from collision with an opposing player, there can be no cause of action if the player that caused the injury or was instrumental to it, was playing within the rules. If the player that caused the injury was clearly in breach of the rules, then there could be a case. To establish such a case the plaintiff must show that the defendant owed a duty of care, that the defendant did not fulfil that duty of care, that the defendant was accordingly negligent and that such negligence created the accident that caused the injury to the plaintiff player.

An action can be commenced in circumstances where external conditions may have caused the accident. For instance, if after severe weather conditions, a playing pitch was borderline playable. If the club allowed play and injuries followed, the club could be sued for allowing a game to be played on dangerous ground conditions. However, some clubs are unincorporated associations and under the law they cannot be sued if the plaintiff is a member of that club.

Injuries that can occur in sporting fixtures apply also to spectators. Safe and proper seating or barriers which can act to protect players must be not only safe but fit for purpose. In a case this year these issues were tested. In the case of Carroll v. Phelan and Others [2023] IECA 91 the plaintiff was assisting in a junior camogie training session at Roscrea GAA Club. A training session was in progress when the plaintiff arrived. She was wearing studded boots and attempted to step over rows of seats in the spectator area but one of her feet caught the surface of the seating causing her to fall forward. She suffered facial injuries. Subsequently she issued personal injuries proceedings in the High Court.

The court heard expert witnesses regarding the seating and the material they were made of. It transpired in evidence that the club had not done a risk assessment on the seating when they were constructed.

The defendant club said it was common case that people did step over the seating and that the plaintiff had contributed to her accident by not taking due care in stepping over seating and opting not to use a safer route to where she was going. The High Court judge held that it was commonplace for people to step over such seating, and it was therefore reasonably foreseeable that people’s feet would be in contact with the surface. The judge accepted that the plaintiff had contributed to her accident and apportioned liability on a 50/50 basis. Accordingly, the plaintiff was awarded €47,000.

The defendants appealed the decision to the Court of Appeal on the question of liability.

The defendants cited a High Court decision of Byrne and Lavin v. Dublin Airport Authority [2016] IECA 261, where it was stated that the mere fact of an accident at the premises did not render the owner of such premises liable.

In considering the facts of the case, the Court of Appeal distinguished the case before it with the cited cases. In those cases, there was no identifiable danger which caused the injuries.

In giving its judgment, the Court of Appeal upheld the finding of the High Court noting that while the plaintiff’s actions did contribute to the injury she incurred, it did not absolve the defendant club from their negligence, accordingly the award of €47,000 was confirmed and the appeal dismissed.

While the plaintiff did win her case, it was a pyrrhic victory as she took the case in the High Court. The award amounting to €47,000 was outside the jurisdiction of the High Court which starts at €75,000 which meant the costs to the plaintiff would be awarded on the Circuit Court scale. Therefore, out of the award made, the plaintiff would possibly have to make up the shortfall in legal fees.

So, in any personal injury case, be careful not to overestimate your damages and take careful advice from your solicitor and team as to choosing the correct court.

WITHOUT PREJUDICE What does this mean in correspondence?

Thu, 21 Dec 2023 11:16:50 GMT

WITHOUT PREJUDICE

What does this mean in correspondence?

People often see letters that have ‘Without Prejudice’ written on the top. This legal principle can be defined as:

‘The “without prejudice” principle means statements made in a document marked “without prejudice” or made verbally on a “without prejudice” basis, in a genuine attempt to settle the dispute, will generally not be admissible in court as evidence against the person making the statement’.

In most cases the term is used in writing and often by solicitors in an exchange of correspondence with other solicitors when dealing with a matter or dispute between their respective clients.

The reasoning behind this principle is the belief that it is in the public interest to encourage parties to settle disputes and avoid litigation wherever possible. Therefore, if a party tries to settle a dispute under the banner of " without prejudice " privilege, such communication cannot be used against that party when the matter becomes before the courts where the negotiations to settle the dispute failed.

An example is where X has a dispute with a neighbour and asks his solicitor to write to his neighbour about this issue. The neighbour might respond with an offer, but his letter is marked ‘without prejudice’. If X declines the offer and proceeds to court, X is not permitted under the without prejudice rule, to disclose to the court how much the neighbour was prepared to pay X to settle the dispute.

The party relying on the “without prejudice” rule must show that the dispute existed at the time of the communication and that either legal proceedings had commenced or that the communication was made in contemplation of litigation.

It is important to note that legal communications, documents and oral discussions, should only have “without prejudice”, marked on them when such communication is putting forward terms to try to settle the dispute and which shows a willingness to negotiate a settlement.

Be careful not to use ‘off the record’ in communications instead of ‘without prejudice’ as it is only the latter that carries the privileged legal meaning ascribed to it.

BANKING/REPOSSESSION Banks will lose their case unless it properly documents its right to possession.

Thu, 21 Dec 2023 11:14:33 GMT

BANKING/REPOSSESSION

Banks will lose their case unless it properly documents its right to possession.

Court cases involving mortgage arrears and bank repossessions come up frequently these days. Where arrears arise, the bank or perhaps a vulture fund who bought its loan book, will try to recover the sums outstanding and, in most cases, will seek repossession of the property as well.

If the property includes the borrower’s family home, the consequences can be very serious for the borrower and his family. In recent years, the courts have tried to be as fair as possible to any borrowers, fearing the loss of their family home. They have required the bank to establish the exact sum of arrears owing and have requested the bank or vulture fund to produce clear evidence of its right to repossess the borrower’s family home under the mortgage agreements entered into.

A recent High Court decision in Ireland illustrated again that the courts will not allow any possession orders against a family home unless the bank can unequivocally establish its right to do so.

The case involved a borrower in Cork who mortgaged his family home in 2001 to First Active PLC. The bank subsequently sold their loan book to Promontaria, a so-called vulture fund. New rules came into effect in 2009 dealing with mortgages entered into after 2009 but this case was dealt with under the old system. Under this system, the mortgage deed gives an interest in the property to the bank subject to the borrower’s right to redeem the loan at any time.

The bank sued for their arrears and for repossession in the Circuit Court. They did not exhibit a copy of the mortgage deed in their affidavit but only exhibited a brief summary of the mortgage deed. The borrower, unfortunately, lost his case in the Circuit court and appealed to the High Court.

In the High Court, the bank admitted they could not produce either the original or a copy of the mortgage deed but argued that these old (pre-2009) mortgages conferred on the bank “an inherent right to possession” by giving them an interest in the borrower’s property subject to his right to redeem.

The High Court judge, however, took a different line. He pointed out that any bank seeking repossession of a family home must establish it has a right to take back possession of the property and “that can normally only be established by producing a copy of the mortgage deed … because the inherent right to possession… may well be constrained by the terms of the mortgage deed.”

The judge said the bank had shown no evidence as to what the terms of the mortgage were in respect of their right to possession or a power of sale.

The court held the bank had completely failed to establish its right to possession had arisen under the mortgage deed by relying only on a summary of the deed. The judge therefore allowed the appeal and set aside the earlier order for possession.

The judge did stress, however, that his judgement only affected old style mortgages on unregistered land and that a different outcome might arise in the case of registered land or mortgages over unregistered land created since December 2009 when new rules came into effect.

Promontaria (Finn) Ltd v Flavin [2023] IEHC 663.

MEDIATION: Can the Courts Force Mediation on Parties in Dispute?

Thu, 21 Dec 2023 11:12:55 GMT

MEDIATION:

Can the Courts Force Mediation on Parties in Dispute?

Over the years, litigation has become more complex, more protracted and often more expensive. An action started in the High Court can then progress to the Court of Appea l and sometimes even on to the Supreme Court. This can add years and huge costs to the case and make litigation prohibitive for all but the wealthy.

In recent years, non-court options have become more popular and terms like Mediation and Alternative Dispute Resolution (ADR) are well known to the public. Reference to mediation has moved from the Family Law Courts to all other courts who entertain disputes. You read in the papers how a judge might gently advise the parties to think about mediation as an alternative, but the question is often asked: can a judge effectively compel parties to enter mediation?

A recent superior court decision in the UK, which is more than likely to be followed here, suggests that a judge can be equally forceful in pushing the parties towards settlement of their dispute by mediation.

On 29 November 2023, the Court of Appeal in London issued its judgement on whether litigants can, in effect, be compelled to use other alternatives to the court process such as mediation.

In this case, the plaintiff sued his local council alleging it had negligently allowed Japanese Knotweed on their adjacent site to enter into and infest his garden. The council asked him to suspend his case while their internal complaints department investigate and try to resolve the matter.

The court was asked whether parties in dispute could be compelled to use other non-court-based resolution methods, such as using the council’s housing dispute scheme.

The trial judge, in the High Court, felt his hands were tied by an earlier 2004 decision where the presiding judge, Lord Dyson suggested that compelling parties to enter into mediation would be a denial of their right to access the courts.

However, in the 2023 Court of Appeal case, the judge decided to depart from Lord Dyson’s comments on the grounds the judge’s words did not inform his decision in that case, were spoken as an aside and should have no bearing on future court decisions.

The Court of Appeal then adopted a new stance where, if appropriate, the court may, using its discretion, require parties to use what it called “non-court-based dispute resolution”. The judge in the case stated quite clearly that “experience has shown that it is extremely beneficial for the parties to disputes to be able to settle the ir differences cheaply and quickly even with initially unwilling parties, mediation can often be successful.”

This judgment would appear to open the door now for courts to actually require or compel parties, who may initially have been unwilling, to engage instead in another form of dispute resolution. The judge did, however, make clear that the parties could always proceed to litigate their dispute if the mediation process proved unsuccessful.

In a rather unusual move, both the Law Society and Bar Council of England and Wales were represented at the hearing and so the final decision on the issue is likely to determine the law both in the UK and Ireland in the years ahead.

The courts are now more likely to push parties to mediation while respecting their right to use the courts if they prefer.

The old way of courts encouraging mediation is likely to become one of compelling parties to do so. Expect to see the mediation and ADR routes become even busier in the future.

James Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416.

BUSINESS DISPUTES – COMMERCIAL LAW Injunctions

Wed, 29 Nov 2023 09:11:00 GMT

BUSINESS DISPUTES – COMMERCIAL LAW

Injunctions

An interesting case was heard in the High Court recently where the court refused to grant an interlocutory injunction to prevent a company from selling properties until shareholder oppression proceedings were fully resolved.

It can be said that the courts are generally slow to grant injunctions unless the facts of the case are compelling and that damages would not be a suitable remedy.

The board of the company had decided to sell its property assets. The Applicant wanted the company to obtain an independent valuation of the property holding company which was selling its assets as a going concern. The Applicant argued that the Company had not taken proper expert advice on the proposed sales.

The defendants submitted that the issues complained of by the applicant fell well short of oppression of a shareholder.

The defendants submitted that the decision to sell was made by the Board of the company in a proper manner and they had the right to sell as mandated by the Board.

The defendants also argued that the applicant had delayed bringing his application by waiting several weeks and that this delay should be considered.

The Court took into consideration whether the balance of convenience favours the granting of an injunction and whether there was a fair question to be tried.

The Court accepted that damages might be a difficult remedy to establish but felt that the damage suffered to the shareholders by granting an injunction would be very significant if the injunction was granted. The Court found it relevant that the majority of shareholders had voted for the early realisation of assets and that the market could change and that the shareholders could lose significant sums if the injunction was granted.

LANDLORD & TENANT Leases and Licences in Ireland. What is the difference?

Wed, 29 Nov 2023 09:08:11 GMT

LANDLORD & TENANT

Leases and Licences in Ireland. What is the difference?

There is always confusion as to whether leases and licences are basically the same thing, but they most certainly are not.

The essential difference between them is that a lease confers on the tenant an interest in the property and usually exclusive possession. A licence, on the other hand, grants only a bare permission to use part or all a property and never gives exclusive possession.

Size does not matter. A small garage can be occupied under lease while a ballroom can be held under licence.

A lease contains various covenants protective of the tenant while a licence affords few protections for the licencee. A licencee can often be asked, for example, to move his premises within a larger store.

A lease usually confers statutory rights on the tenant, for example, the very important right to renew his lease. A licencee does not have such protection and may have to vacate his store on expiry of the licence or sometimes even sooner.

A store owner could have two shops, one held under a lease and the other under a licence. In these circumstances, disputes can arise after several years as to whether a particular premises were in fact held under a lease or licence as both have common features.

The courts will not pay much attention to what the parties say in court proceedings or what label they put on the agreement but will look closely at what the parties intended and what activities they carried out on the ground.

So, if an agreement has all the characteristics of a lease or tenancy, (renewal options, exclusive possession etc.) the court will reject any contention by the parties that what they signed was only a bare licence.

A licence agreement allowing a shop owner exclusive possession of the premises is likely to be held by the court to be a lease and not a licence.

In summary, the main features of a licence usually are:

No interest in the land is granted.
It is often revocable at the behest of licensor.
The licensee does not enjoy exclusive possession.
The rights of the licensee are personal and cannot be assigned.

Property or shop owners who enter into an agreement allowing another party to occupy their premises for certain monthly or other payments, must be clear in advance as to what their relationship really is and would be best advised to retain a solicitor draft up a proper licence agreement. They also need to make sure the activities of the occupier on the ground comply with the terms of the licence and do not accidentally create a lease if that was never intended.

FLOOD DAMAGE: Where do Owners, Landlords and Tenants Stand?

Wed, 29 Nov 2023 09:06:49 GMT

FLOOD DAMAGE:

Where do Owners, Landlords and Tenants Stand?

The names of recent storms have nearly become household names too. The frequency of storms has been increasing and recent floods, such as in Midleton, remind the public of just how much damage and loss they can cause. Sums like € 100,000 have been mentioned to cover repairs at a minimum.

Owners of Houses, Shops:

Most owners will seek cover, sometimes under a combined policy, for compensation for damages and/or loss of business created by storms and floods, such as the one that caused so much destruction in Cork recently.

The problem with obtaining such cover is that it can often be refused or withheld if the insurance company sees the property to be in a high-risk area. How easy will it be for those shop owners in Cork to get flood insurance next year? Insurers prefer to insure against a contingency and not against a local flood, which in some areas has almost become an annual event.

Some coastal areas in Dublin are declining flood insurance despite it being several decades since any flood occurred. Owners and brokers will have to trawl the market here and, in the UK, to obtain flood cover, which is often quite expensive.

Landlords & Tenants of Ho uses and Shops:

Tenants of either shops or houses usually have a lease which, among other matters, will set out clearly which of the parties is responsible for maintaining and repairing their premises and taking out insurance to cover the risk of storm and flood damage.

Most shop or office leases are for 15 or 20 years and called Full Repairing and Insuring leases because the tenant under such leases has the obligation to fully repair his premises and to take out insurance for fire and flood damage. In addition, most sensible tenants will take out contents, public liability, and loss of business cover.

It must be said that shopping centres vary in their layout as do the repairing and insuring provisions in these leases. These provisions are set out in legal language that is sometimes opaque, but these clauses are very important. You should, therefore, ask your solicitor to clarify them for you and to advise what exactly your repair obligations extend to and what type of insurance cover you should obtain.

You should also insist as a tenant that any proposed lease gives you a rent-free period while your shop or premises are being repaired. The landlord will usually have insurance against loss of rent with the result that neither party will be out of pocket.

It is important not to overlook having any contents or furniture insured as these can be easily destroyed in a flood and quite separate from any insurance held on the building itself.

Houses and apartments that are let out for a short period of time such as a year, are a different category. In these cases, the landlord will usually arrange all the insurances himself against fire, storm, and flood while the tenants are responsible for arranging contents cover on all their possessions.

The frequency of flood events and the cost of repairs is so onerous these days that it is vital this is covered by flood insurance; however difficult this is to obtain.

It is, therefore, important that tenants and owners know exactly who is liable to repair the property and who is to obtain or pay for the necessary insurance. It is much more advisable to have these items clarified before rather than after your premises are damaged by a flood or other weather event.

STATUTE OF LIMITATIONS Statute of Limitations in Building Defects

Tue, 28 Nov 2023 23:02:21 GMT

STATUTE OF LIMITATIONS

Statute of Limitations in Building Defects

If a builder carries out negligent works on your house, but these remain undiscovered for many years, how does this affect your right to sue?

In many cases a Plaintiff may not realise the extent of the damage until after the six-year period, at which stage they will have no right to take a case.

The decision of the Court of Appeal in Brandley v Deane however had dealt comprehensively with the issue of the Statute of Limitations in the context of defective building cases.

The foundations of the Plaintiff’s house had been laid in March 2004. On the 4 ^th of September 2004, the First Defendant Mr Deane, the supervising consulting engineer, issued a Certificate of Compliance with planning permission and building regulations.

However, despite this Certificate being issued, the foundations of the house were defective. The houses were completed in January 2005, but in December 2005 the Plaintiff noticed that cracks had begun to appear in each of the houses.

The Plaintiff did not commence proceedings until November 2010. When the case came before the court, the Defendants argued that the date the damage occurred was in 2004, and as such the claim was outside the six-year time limit and was statute barred.

This was appealed to the Court of Appeal, where the main argument advanced was that, although the negligent installation of the foundations and certification were outside the six-year period, the actual damage that happened did not occur until the following year when the houses were completed, and the cracks began to appear.

The Court of Appeal agreed with the Plaintiff that there must be actual damage before an action can be taken, and while the foundations were defective in 2004, they did not cause any damage until the following year.

The focus of the court when considering any statute issues in respective of defective works cases will be establishing when the damage to the property actually occurred.

LITIGATION Judges must step aside from hearing a case if there is any hint of bias.

Tue, 28 Nov 2023 22:46:00 GMT

FAMILY LAW:

What do I do if my partner takes my child out of the country?

Reports about child abduction are more common these days with an increased number of mixed marriages. Tug O’ War battles occur between one party in Ireland and another abroad and all over custody of their child. You often read about one party working and living abroad who has brought the child back to their adopted country without the permission of the mother.

Abduction of a child happens when any child under 16 years is removed from its legal guardian without that person’s permission.

International child abduction can be even more harrowing and happens when a child is taken out of the country where it and its legal guardian live and taken to a completely different country.

A parent who wants to relocate a child back to another country cannot do so without the consent of the mother unless he applies for and obtains a court order.

The laws which apply to cases of international child protection are The Hague Convention and certain EU regulations now adopted into Irish law. The EU regulations only apply to cases within EU countries while The Hague Convention, to which more than 100 countries subscribe, applies only to countries outside the EU.

The laws are essentially based on two principles:

The child must be returned to their habitual residence (where they normally live) immediately.
The local courts where the child normally resides are the most appropriate courts to decide what is in the best interest of the child.

In Ireland, the Department of Justice (child abduction unit) is the authority for managing the return of any abducted children to the country where they normally reside.

Child abduction is a criminal offence and, if you believe your child could be at risk of abduction, you should contact the Gardai and get legal advice as soon as possible.

If your child has been internationally abducted, you should contact the Department of Justice immediately to set in train the procedures required in the country to which the child has been abducted.

The Department can assist parents in this situation by:

Collecting all critical documents and sending the necessary application form to its foreign counterpart.
Providing all further information to the foreign authority.
Translating any foreign documents.
Providing regular updates to the parent left behind.
Assisting with applications for legal aid.
There are no charges for this service.

In a worst-case scenario, where your child has been abducted from Ireland and brought to a country that has not signed up to the Hague Convention, you contact a solicitor in Ireland immediately to get advice on what legal proceedings may be necessary in the Irish courts to get your child returned.

EMPLOYMENT LAW: Are Pizza Delivery Drivers Employees or Independent Contractors?

Tue, 28 Nov 2023 22:40:10 GMT

EMPLOYMENT LAW:

Are Pizza Delivery Drivers Employees or Independent Contractors?

It has been widely accepted, although somewhat controversial, that having workers off your books and treated as independent contractors, rather than ordinary employees, is less onerous for employers and saves them substantial PRSI payments, holiday pay and other benefits. Arguments over whether so called independent contractors are really employees in reality have become more frequent with the arrival of the gig economy with operators like Deliveroo.

Delivery drivers in a particular pizza restaurant, in the midlands, should be considered as employees and not contractors, the Supreme Court has held in a decision that has wide consequences for both the workers and owners who are involved in similar type businesses.

The case concerned delivery drivers who were signed up to contracts in 2010 and 2011 by Karshan (Midlands) Ltd, trading as Domino’s Pizza.

The drivers, not surprisingly, insisted they were, in reality, employees for tax purposes but Karshan said they were totally independent contractors under “contracts for service” and therefore liable for their own taxes.

Karshan appealed a 2018 decision of the Revenue Commissioners that the delivery drivers should all be regarded as PAYE workers. The High Court rejected that appeal, but the Court of Appeal, in a 2-1 majority, overturned that decision.

The Revenue Commissioners sought and were granted a further appeal to the Supreme Court. In a unanimous decision on Friday 20 ^th November 2023, a seven-judge Supreme Court effectively overturned the Court of Appeal decision and found that, under several new criteria it established, it was clear enough that the drivers, in this particular case, were and should be treated as employees.

He said the question of whether a contract is one “of” or “for” services (i.e., independent contractor or employee) should be resolved by reference to five questions based on a number of earlier court decisions.

The first three that must be met are: does the contract involve the exchange of wage or other remuneration for the work?; if so, is the agreement one in which the worker is agreeing to provide his own services to the employer and not outsource them to another party?; and if so, does the employer exercise sufficient control over the putative employee and is the work required to render the agreement one that is capable of being an employment agreement?

If those three requirements are met, the decision maker must then determine whether the terms of the contract between employer and worker, interpreted in the light of the admissible factual evidence and having regard to the working arrangement between the parties, are more consistent with a contract of employment or some other form of contract.

Regard must also be had to whether the agreed working arrangements point to the putative employee working for themselves (as independent contractors) or for the putative employer (as an employee).

Finally, the judge said, it should be determined whether there is anything in the particular legislative regime under consideration, such as Taxation laws, which requires the court to adjust or supplement any of the foregoing requirements.

He said the Tax Appeals Commissioner was entitled to conclude in this case, as she did, that the drivers were employees of Karshan for the purposes of the relevant provisions of the Taxes Consolidation Act 1997. The evidence disclosed “close control” by Karshan over the drivers as to when they work, what and to whom they delivered and what time schedules they were to operate under.

While some aspects of their activities were more consistent with their being independent contractors engaged in business on their own account, such as the hours they chose to work, the Commissioner was entitled to conclude that the preponderance of the evidence pointed to the drivers spending all of their time carrying on Karshan’s business rather than their own, he found.

The contract was one that envisaged personal service by them, with the facility for substitution of drivers on certain conditions with the substitute drivers being paid by Karshan and not by the originally rostered driver, he said.

In comments made while delivering the judgment, Mr Justice Murray said it should be pointed out that the finding that these drivers were employees, did not necessarily apply to any other driver who wanted to argue that they were not an employee but an independent contractor and where the evidence they produced suggested that different outcome.

The Revenue Commissioners v. Karshan Midlands Ltd t/a Domino’s Pi zza [2023] IESC 24.

FAMILY LAW: What do I do if my partner takes my child out of the country?

Tue, 28 Nov 2023 22:31:29 GMT

FAMILY LAW:

What do I do if my partner takes my child out of the country?

Abduction of a child happens when any child under 16 years is removed from its legal guardian without that person’s permission.

International child abduction can be even more harrowing and happens when a child is taken out of the country where it and its legal guardian live and taken to a completely different country.

A parent who wants to relocate a child back to another country cannot do so without the consent of the mother unless he applies for and obtains a court order.

The laws are essentially based on two principles:

The child must be returned to their habitual residence (where they normally live) immediately.
The local courts where the child normally resides are the most appropriate courts to decide what is in the best interest of the child.

In Ireland, the Department of Justice (child abduction unit) is the authority for managing the return of any abducted children to the country where they normally reside.

Child abduction is a criminal offence and, if you believe your child could be at risk of abduction, you should contact the Gardai and get legal advice as soon as possible.

If your child has been internationally abducted, you should contact the Department of Justice immediately to set in train the procedures required in the country to which the child has been abducted.

The Department can assist parents in this situation by:

Collecting all critical documents and sending the necessary application form to its foreign counterpart.
Providing all further information to the foreign authority.
Translating any foreign documents.
Providing regular updates to the parent left behind.
Assisting with applications for legal aid.
There are no charges for this service.

DISCRIMINATION Religious Grounds

Wed, 25 Oct 2023 22:28:01 GMT

DISCRIMINATION

Religious Grounds

The mother of a child, who was not a Catholic, complained to the Workplace Relations Commission (WRC) that her child had been discriminated against because she was not a Catholic.

She claimed that Catholic pupils who participated in a Communion choir were taken from their classrooms and given a treat of ice cream as a reward for their part in the choir. The children returned to their classes then ate their ice cream. As her child was not a Catholic, she was not in the choir and received no ice cream. The mother claimed that her child had been discriminated against on religious grounds. She grounded her claim under the Equal Status Act which prohibits discrimination on the grounds of religion in schools.

The school respondent which has a Catholic ethos, submitted that under the Act, it was entitled to have a Catholic ethos.

In its findings, the WRC found that the children who received the ice-creams who took part in the choir were treated ‘more favorably’ rather than ‘less favourably’ and no religious ground has been established for the treatment the school gave those who opted to take part in the choir’s activities. Accordingly, the claimant failed to prove religious discrimination.

A Parent v A National School 10 August 2023 WRC No. ADJ-00041002.

CONSUMER LAW Digital Content & Services

Wed, 25 Oct 2023 22:21:49 GMT

CONSUMER LAW

Digital Content & Services

The Consumer Rights Act, 2022 creates new rights for consumers when digital content and services are purchased. The new rights apply from 29 November 2022.

Digital Content

This covers content supplied by a trader in digital form, this includes video files; audio files; music files; digital games; e-books and other e-publications; computer programmes; digital applications.

Digital services

These are contracts which allow the purchaser to create, process, store or access data in digital format or share data in digital form with other users of that service. Examples are streaming services; cloud computing; social media, video and audio sharing and other file sharing.

The new law applies whether the content is purchased or given in exchange for other content.

Things to do before purchasing.

Obtain the seller’s details (name, address, contact details)
Clarification on the service
Final price
Duration of contract
Any hidden extras or hidden charges
A right to cancel and how to cancel

These are the rights a consumer is entitled by law to get from the seller.

Whether digital content or service is purchased, the law provides that they meet certain conditions of quality, performance and durability. The seller is compelled by law to:-

Ensure the content/service is in line with the contract.
That it should work
Match the description as advertised.
Come with all accessories and instructions.
Be installed properly.
Include security information and updates.
Be updated in line with the contract.

Faulty Digital Content and or Services

The seller is obliged by law to resolve any issue without charge and within a reasonable time.

Seller Changing the Content/Service

This is permitted under the Act if:
The seller gives a valid reason for any change.
The change cannot incur any additional cost.
The change must be communicated to the purchaser.
The seller must inform the purchaser in writing of the change and the purchaser can opt to either keep the contract or if not happy with the change, to terminate it.
There is a time limit of 30 days to terminate the contract.

PERSONAL INJURIES Award in High Court to Cyclist Reduced on Appeal

Wed, 25 Oct 2023 22:17:37 GMT

PERSONAL INJURIES

Award in High Court to Cyclist Reduced on Appeal

There is a trend now in the courts in awarding less damages in personal injury cases. Even where a plaintiff who had an apparently ‘good’ award in the High Court, can run the risk that if the defendants appeal the award, their good award could be reduced.

An example of this occurred in a recent Court of Appeal case where the High Court had awarded the plaintiff €125,000 reduced to less than €66,000. The case involved a cyclist who was knocked off his bike by a bus. The cyclist fell onto the footpath. As the injury was not too serious, the plaintiff spoke with the bus driver and a Garda who was close by.

The plaintiff continued to travel to work and later that evening attended the Mater Rapid Injury Clinic in Smithfield. Here he learned that he had a fracture on his left elbow, an ankle sprain and a number of cuts and bruises. These injuries were later confirmed in the Mater Hospital.

The plaintiff also told the High Court that he had broken sleep and pains in his back, neck, and ankle. He received over 100 sessions of physiotherapy and 45 sessions with a chiropractor. He complained that he continued to have body pain several years after the accident.

The medical evidence indicated that the plaintiff’s injuries were reasonably mild, and this was contended by the defence who claimed that the plaintiff had exaggerated his injuries. In the High Court the doctors were agreed that the plaintiff’s complaints were way out of proportion to his physical injuries.

The Court of Appeal looked at how a court should assess personal injuries which were unsupported by medical evidence. The court found that there had been somewhat of a mischaracterisation of the medical evidence by the trial judge in the High Court, and that it was significant that no evidence was led from a clinical psychologist even though the plaintiff had been referred to one.

The Court of Appeal found that the High Court judge had erred in finding that there was a conflict of medical evidence and overlooking the fact that the doctors had largely agreed that there was no organic source of the plaintiff’s pain. The court commented that the trial judge apparently ignored the claim by the defence of malingering by the plaintiff.

The court found that there was merit in the defendant’s contention that the High Court judge sought to diagnose the plaintiff as suffering from a pain syndrome in the absence of any medical evidence.

The Court of Appeal ruled that the plaintiff’s elbow injury was in the ‘minor’ category in the Book of Quantum and reduced the general damages to €55,000. Regarding the special damages the Court of Appeal ruled that the trial judge took an erroneous approach in placing a value on these and accordingly reduced them to €10,688.

O’ Daly v. Bus Éireann – Irish Bus & Anor [2023] IECA 232.

ENDURING POWERS of ATTORNEY Recent important changes

Wed, 25 Oct 2023 11:35:38 GMT

ENDURING POWERS of ATTORNEY

Recent important changes

The Enduring Power of Attorney (EPA) system has been in place for several years now, but some stakeholders were uncomfortable with the entire system being administered through the Wards of Court Office.

Various changes were therefore introduced on 26 April 2023, but any EPAs executed before that date are not affected at all and such EPAs will proceed under the old system which has been in place since 1996. If any such EPA requires to be registered at a future date, it will still be done through the Office of Wards of Court like before.

EPAs which are executed after 26 April 2023, will be processed under the Assisted Decision-Making Act 2015. (the ADM Act). The purpose of the EPA remains the same while the 2015 Act provides for an enhancement to the system with some new features. The main takeaways from the new regime are as follows:

A new body, the Decision Support Services (DSS) is to set up an online portal to let members of the public access the site for information and start the whole process of making an effective EPA.
The DSS will now supervise and register the EPA, which under the old system, had been done by the Wards of Court Office.
Once the EPA has been completed and signed, you are obliged to register it with the DSS, unlike the old system where you registered it only when it became medically necessary.
There are some additional parties you must notify once the EPA has been put in place.
When the Attorney has reason to believe that the donor lacks capacity to make important decisions, he must notify the DSS. This notification must be accompanied by written statements from two doctors supporting this belief.
The donor of the power must also be put on notice of the notification to the DSS and indeed can lodge an Objection to this within five weeks.
There are obligations on the Attorneys to file a written report with the DSS each year outlining all monies paid to them along with their costs and expenses. The Attorneys are responsible for keeping proper accounts and records.
The DSS can visit the Attorneys if they receive a complaint or to check they are acting in the best interest of the donor.

The Wards of Court office is a creature of Victorian statutes and the above represents efforts by the Department of Justice to bring the entire system more up to date.

PROPERTY After the Purchase: The Horror Stories to be Avoided. “They’ve taken away the cooker and all the curtains we especially wanted!”

Tue, 05 Sep 2023 22:43:54 GMT

PROPERTY

After the Purchase: The Horror Stories to be Avoided.

“They’ve taken away the cooker and all the curtains we especially wanted!”

A matter to be incredibly careful about on a purchase is the furniture, fixtures and fittings which may or may not be included in the sale. The writer has seen more hassle and disputes over fireplaces and carpets and presses in his experience as a solicitor than over the house itself. I once had vendors sell a nice Ranelagh house and then bring my purchaser client to court over a €150 rug. Try to establish clearly what is not for sale and what is being included with the house itself.

Generally, most fixtures (fireplaces, rads etc) stay with the property while some fittings lights, rugs, lino etc) may be removed unless otherwise provided for in the contract. Fireplaces are not to be moved under any circumstances unless perhaps both parties have agreed to their sale. A lot of old carpets, presses, curtains etc are worth extraordinarily little but quite handy to tide the purchaser and his family over for the time being. It is hardly rocket science to go through all these items with the vendors agent and agree on a list of items what you may like to purchase.

Unless you are buying a Picasso over the fireplace, none of these items even an old table or bed should set you back very much. If you want none of them at all you are perfectly entitled to ask the vendor or his agent to arrange to have all of them taken out of the house before you take over. And the day before the sale closes, you should arrange with the vendors agent to show you the house so you can see it is vacant and that items which should be there are actually present.

I heard of a young couple who did just that after the sale closed on a Friday (having paid a substantial sum of money) and when they opened the hall door to their new home, they found one of the vendor family still eating their dinner and watching the Late Late show.

Clarity is king. Do not accept a clause that says, “curtains in the living room are included in the sale.” Believe me, several purchasers have taken over their new home to find a ragged old pair of curtains in the living room while the nice wool ones they had admired and wanted are nowhere to be seen. Ensure the wording is something like “the purchase price includes the current cream wool curtains in the living room.”

Most vendors and purchasers are fair and decent, but some vendors can be truly awful. My wife and I offered a vendor € 2/3 k for all contents in the bungalow (the selling agent Sherry Fitz advised us this was a fair price). But the vendor wanted €10,000 for most old stuff and we refused; telling him he had therefore to remove all these fitting, carpets etc out of the house. In the end he nearly steamed off the wallpaper, removed all the light fittings, unscrewed some bulbs, removed all the carpets and underlay but left scores of sharp carpet tacks everywhere. He also – illegally – took some freestanding units in the kitchen which we forced him to reinstate. Truly the vendor from hell.

So be careful and agree in writing with the agent what you want and what you are prepared to offer for it and do not go overboard.

PROBATE Making a Will for an Elder

Sun, 03 Sep 2023 22:32:56 GMT

DISCRIMINATION

Religious Grounds

The mother of a child, who was not a Catholic, complained to the Workplace Relations Commission (WRC) that her child had been discriminated against because she was not a Catholic.

The school respondent which has a Catholic ethos, submitted that under the Act, it was entitled to have a Catholic ethos.

A Parent v A National School 10 August 2023 WRC No. ADJ-00041002.

DEFAMATION ‘Offer of Amends’ procedure can reduce defamation awards by up to 40%

Sat, 02 Sep 2023 22:34:07 GMT

DEFAMATION

‘Offer of Amends’ procedure can reduce defamation awards by up to 40%

The Court of Appeal has significantly reduced an award of damages in a high-profile defamation case involving TV3.

In the case of Christie v TV3 Television Networks Limited [2017] IECA 128 the High Court had awarded Mr Christie €200,000 in damages when the station accidently referred to him as being Thomas Byrne, a different solicitor who had been jailed for fraud.

TV3 subsequently availed of the ‘offer of amends’ procedure as contained in the Defamation Act 2009, the workings of which is still relatively new in this jurisdiction.

When making an ‘offer of amends,’ the defendant is accepting that they have published defamatory material and wish to engage in negotiations to agree upon suitable compensation and the terms of apology.

If agreement cannot be made through negotiation, then the matter will go to court, where the appropriate amount will be decided upon by judge or jury.

Importantly however, the judge will give credit to the defendant for making an offer of amends and reduce the award by a certain percentage. How much it can be reduced will vary depending on the circumstances.

In this case TV3 appealed the High Court award to the Court of Appeal.

The court held that in any case damages must be measured and proportionate, and the courts had to be wary in defamation cases of the ‘chilling effect’ high awards can have on the media.

The court considered the original award to be disproportionate and reduced it to €60,000. It also held that the Offer of Amends made by the defendant, coupled with the early apology given to the plaintiff, should reduce the award by 40%.

Overall, by virtue of the offer of amends made and their foresight in appealing, TV3 reduced their liability for damages by over €100,000

PERSONAL INJURIES Injury sustained by dog bite.

Fri, 01 Sep 2023 22:35:21 GMT

PERSONAL INJURIES

Injury sustained by dog bite.

The plaintiff in this case suffered horrific injuries from a pit bull terrier while visiting her friend’s house. The dog was under the control of the friend’s parents whom the plaintiff sued for negligence and breach of statutory duty under the Control of Dogs Act.

The plaintiff was in her friend’s bedroom when the dog entered the room. The dog jumped onto the bed where the plaintiff was sitting with her friend. The dog nipped the plaintiff’s back whereupon the plaintiff became hysterical and pleaded that the dog be taken out. The dog was held back while the plaintiff made her way to the door and placed her hand on the door handle. At this point, the dog lunged forward and latched onto her arm. The dog had a chunk of the plaintiff’s flesh in its mouth. The plaintiff suffered greatly having to have surgery and being unable to wear tops thereby exposing the wound.

The judge awarded the plaintiff a total of €121,917 being €65,000 the maximum the court could award for general damages; €45,000 for the scarring and phobic anxiety about some dogs and the balance by way of special damages.

Dog owners will be held responsible for unprovoked attacks by their dogs and should take every precaution that their dogs are kept under control. Dogs with a reputation for aggression should be muzzled to avoid incidents like this from arising.

ac-forde

WILLS: Alteration to a Will Disallowed by High Court

MEDICAL NEGLIGENCE Claim that the pharmacy gave the incorrect medicine to a customer.

PROBATE How to Dispute a Will

DISCRIMINATION School Discriminated Student for Wearing an Earrin

MEDICAL NEGLIGENCE Mandatory Incident Disclosure Introduced for Healthcare Professionals.

EMPLOYMENT LAW Discrimination

PERSONAL INJURY Psychological Injuries

FALLEN TREES Who is Responsible?

PRACTICE Inherent Jurisdiction of the High Court

DEFAMATION Social Media Posts

EMPLOYMENT LAW Employment Permits

WORKPLACE INJURIES Employers’ Responsibilities

COMPANY Liability of Directors

EMPLOYMENT LAW Independent Contractors

PROPERTY Legal Requirements

BUSINESS Handling Conflict in the Workplace

ASSISTED DECISION MAKING

ROAD SAFETY E-Scooters

EMPLOYMENT LAW Explaining the Unfair Dismissal Act, 1977 as Amended

COMMERCIAL Poorly Drafted Contracts

LANDLORD & TENANT Statutory Renewal Rights

CONTRACT ‘Small print’ in Estate Agents’ brochure helps overturn €350,000 award

INTELLECTUAL PROPERTY Infringement

WILLS Making a second will for assets in foreign countries

LITIGATION Judges must step aside from hearing a case if there is any hint of bias

PERSONAL INJURY Fall on Council Pavement

MISAPPROPRIATION OF MONEY Undue influence on Dementia Parent

PERSONAL INJURIES False Claims Can Lead to Prison

PERSONAL INJURIES False Claims Can Lead to Prison

COMPANY LAW Directors’ Loans

COMPANY LAW Directors’ Loans

PROBATE Role of Executor

PROBATE Role of Executor

EEMPLOYMENT LAW Dismissal for Misconduct: Avoiding the Pitfalls

EMPLOYMENT LAW

﻿ Dismissal for Misconduct: Avoiding the Pitfalls

INHERITANCE TAX/WILLS Payment of Tax

INHERITANCE TAX/WILLS Payment of Tax

LITIGATION Suing an Association

LITIGATION Suing an Association

BUSINESS LAW What is Due Diligence?

BUSINESS LAW What is Due Diligence?

PERSONAL INJURY Time Limits

PERSONAL INJURY Time Limits

DOGS Owner’s Responsibilities

DOGS Owner’s Responsibilities

CONTRACT Breach of

CONTRACT Breach of

PERSONAL INJURIES Burn Injuries to Newborn Baby

PERSONAL INJURIES Burn Injuries to Newborn Baby

LITIGATION On Death do Legal Actions Survive?

LITIGATION On Death do Legal Actions Survive?

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

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

COMPANY LAW Shareholder Issues

COMPANY LAW Shareholder Issues

MEDICAL NEGLIGENCE Discovery of Post-Accident Medical Records

MEDICAL NEGLIGENCE Discovery of Post-Accident Medical Records

PERSONAL INJURY Workplace Injury

PERSONAL INJURY Workplace Injury

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

PROPERTY

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

ELDERLY LAW Assisted Decision Making: Court Appoints Support Official from Outside the Immediate Family of the Elderly Person.

PERSONAL INJURIES Establishing Negligence is Vital in Personal Injury Cases

PERSONAL INJURIES

Establishing Negligence is Vital in Personal Injury Cases

FAMILY LAW: A Divorce Decree Does Not Prohibit the Parties from Continuing to Live Together If They Have Little Other Choice

FAMILY LAW

﻿ A Divorce Decree Does Not Prohibit the Parties from Continuing to Live Together If They Have Little Other Choice

COMMERCIAL LEASES Forfeiture Clauses in Shop Leases

COMMERCIAL LEASES

Forfeiture Clauses in Shop Leases

FAMILY LAW What is a Prenuptial Agreement?

FAMILY LAW What is a Prenuptial Agreement?

INHERITANCE TAX What is the Position?

INHERITANCE TAX. What is the Position?

CONVEYANCING What is Involved.

CONVEYANCING. What is Involved

EMPLOYMENT LAW  Discrimination

FALLEN TREES  Who is Responsible?

PRACTICE  Inherent Jurisdiction of the High Court

DEFAMATION  Social Media Posts

WORKPLACE INJURIES  Employers’ Responsibilities

COMPANY  Liability of Directors

BUSINESS  Handling Conflict in the Workplace

Dismissal for Misconduct: Avoiding the Pitfalls

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

MEDICAL NEGLIGENCE
Discovery of Post-Accident Medical Records

PERSONAL INJURY
Workplace Injury

A Divorce Decree Does Not Prohibit the Parties from Continuing to Live Together If They Have Little Other Choice

Time limit to issue proceedings.

Making a unilateral change to your company’s Terms and Conditions.

Sporting Activities

What does this mean in correspondence?

Banks will lose their case unless it properly documents its right to possession.

Can the Courts Force Mediation on Parties in Dispute?