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 in this category. 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.

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 in this category.

A recent High Court case has confirmed that either the plaintiff or the defendant can arrange, if they wish, for several expert medical reports, and can ask for the defendant to be examined by any number of experts provided. However, only one expert is allowed give evidence in court. It had been thought the courts disapproved of either the plaintiff or the defendant obtaining a clutch of different expert reports and some commentators described this as “expert shopping.” The High Court, however, clarified that either party can obtain any number of medical reports of a certain specialty, before deciding which, if any, of them to call as a witness. In this recent case, the plaintiff injured his ankle on a pavement and the council admitted liability. The plaintiff’s doctor diagnosed chronic regional pain syndrome, (CRPS), which greatly increased his level of damages. A pain management expert, Dr. Mac Sullivan, examined the plaintiff for the defendant insurer in May 2022, but saw no signs of CRPS. An orthopaedic surgeon, Mr Mulcahy, again retained by the defendant, examined the plaintiff in 2023, but did report evidence the plaintiff was suffering from CRPS. With conflicting reports, the defendant requested another orthopaedic surgeon, it is third expert, examine the plaintiff and write up a report. With the hearing imminent, the defendant insurer applied to the court to hold the plaintiff’s proceedings until the plaintiff could be examined by the third expert doctor. The judge found there was no authority in case law allowing a defendant to obtain a second or third opinion from a recognised, medical specialty and, more importantly, whether a plaintiff was obliged to facilitate such an examination by that second or third expert. He found the test in such matters is one concerned with fairness and the interest of justice having regard to all the circumstances. In essence, the one expert rule deals only with the admission of evidence in court and not the delivery of expert reports the judge found. Neither the plaintiff, nor defendant, in investigating the claim, is bound irrevocably by the opinion of the first expert consultant. The judge found that a further examination of the plaintiff would impose little, if any, additional burden on him, in circumstances where he would likely be submitting to an updated orthopaedic examination anyway before the hearing. The court therefore halted the proceedings pending examination of the plaintiff by a professor Harty, the defendant’s third medical expert. Donovan V Cork County Council [2024] 33.

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. 

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.

The new personal injury guidelines, introduced in April 2021, replace the Book of Quantum, which was used to put a value on compensation awards to plaintiffs. These guidelines relate to general damages or a general award for pain and suffering to include continuing pain and suffering into the future. The courts will now identify the injury, or main injury in a multiple injuries case, and use the Guidelines to ascribe a value to such injury depending on which category of injury it belongs to, as set out in the guidelines. Awards have reduced in the last few years, but a recent High Court case Illustrates how the court can still award substantial damages while carefully adhering to the guidelines. The plaintiff, a Garda motorcyclist was thrown into the air, following a road accident, and suffered quite serious injuries to his left arm and wrist. He also had other serious injuries to his testicles, inner thighs, chest, and ribs. He had extensive surgery, was dependent on his wife for most tasks, and suffered mental distress. The plaintiff was quite industrious about attending physio sessions and rehabilitating himself, and made a slow recovery from his bone injuries, despite residual and permanent weakness in both limbs and a curtailment in his lifting abilities. He was also left with nasty scars after his surgery. The issue before the court was general damages and the judge said that this had to be done by reference to the Personal Injury Guidelines. The judge said his task was to identify the most serious injury and the bracket of damages to which that clearly belonged. His second task was to uplift or increase that award to compensate the plaintiff for pain and suffering arising from his lesser injuries. The judge stated that each injury, in a multiple injuries case, must be fairly assessed and have a value allocated. However, following that, the judge must step back from those individual injuries and their values to evaluate, in the round, the cumulative effect of all the injuries on the plaintiff and to adjust the final award to avoid under or overcompensation. An overlap of injuries must therefore be taken into account. The court noted the trauma of the accident and permanent scarring and disfigurement of his arms, together with some residual weakness that affected his job, and these should all be taken into account. The judge found his most severe injury was to his left arm and the court valued his main injury at the lower end of €55,000 to reflect the plaintiff’s marked recovery. In respect of his lesser injury, the right wrist, the court valued this at €42,000 thereby placing it between the moderate and serious categories of wrist injury. His other soft tissue injuries, and individual bruising of his chest and ribs were valued at €3,000. The total awards amounted to €100,000.  Finally, the judge looked at the discount factor where injuries may overlap and could be treated together. As both arms had been injured, he applied a modest discount of €15,000 and therefore awarded general damages of €85,000 to the plaintiff. Keogh v Byrne [ 2024] IEHC 19. ce.

The courts do not approve of delays by either the plaintiff or defendant in progressing their case through the court system. In cases of chronic delays, the court will often be amenable to striking out the action because any prolonged delays are considered prejudicial to the plaintiff or defendant as the case maybe. The courts will not also shrink from criticising any legal firms who are themselves responsible for serious delays in progressing their client’s case. However, the client of the firm can be criticised too, if they are seen to have done little or nothing to address the failings of the firm they retained. This happened in a recent case before the Court of Appeal. The plaintiff issued proceedings in 2015, but these had to be amended as the wrong defendant was nominated. The defendant insurance company issued a request for further information but this was completely ignored by the plaintiff’s solicitors. The plaintiff changed her solicitors in 2022, but the new firm disclosed that no expert medical report had been obtained by her former solicitors between 2015 and 2021, when the matter first came to court by way of motion to dismiss her claim. The High Court held that the lack of a medical report after a period of eight years was unfair to the defendants, and it struck out the case as there was a risk that a fair trial was no longer possible. The plaintiff appealed to the Court of Appeal on the grounds that the defendant had never complained that it was prejudiced by the delays and, even if it was, that was insufficient to throw out her case. The appeal court found it unbelievable that, after eight years, the plaintiff’s solicitors had yet to obtain an expert medical report. The judge commented that running the proceedings for eight years with no underlying report was most certainly an abuse of process. The judge was also critical that the new firm had also been slow in progressing the file. He said that the plaintiff cannot avoid responsibility for the actions of her solicitors by landing the consequences on the defendant. The act of a solicitor is the act of the client who retains the solicitor, and the client must be held equally culpable for the shortcomings of the firm she employed. The judge concluded that prolonging the proceedings for eight years, without a supporting expert opinion, was a gross abuse of process and, in itself, was clearly prejudicial to the defendant. He therefore dismissed the appeal, and the plaintiff’s court case remained struck out. O’Neill V Birthistle [ 2024] IECA 17

A case brought to a French court could have implications in Ireland for the payment of royalties for music played at funerals. Music played at public events is collected by collection agencies. In France two of these took a French funeral company to court for the non-payment of royalties due to music composers for music played at funerals they conducted. The French court ordered OGF which is one of France’s largest funeral companies to pay €80,000 to the Society of Authors, Composers and Music Publishers (SACEM) and also €37,500 to another copyright association after a long dispute over the issue. The French company, OGF had in fact paid artists’ royalties until 2019 where they paid €1.93 per ceremony but after a price hike to €3.30 they refused to pay. The company also started a court case against the collection societies claiming that the funerals are private events and not broadcast to the public. The French court ruled ‘the broadcast by the company of musical works during funerals, without prior authorization…constitutes an unauthorized representation of these works and, therefore an infringement of copyright.’ In Ireland, the Irish Music Rights Organisation (IMRO) collects royalties on behalf of artists and music copyright owners. Currently, royalties are not collected by IMRO for music played at funeral services but perhaps they might decide to collect these royalties and follow the example in France.

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.