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DENTAL NEGLIGENCE Claims for Negligence by Dental Services Provided Abroad

Thu, 16 Apr 2026 11:24:52 GMT

Dental negligence claims for treatment abroad, such as crowns, implants, or veneers, can be pursued, though they are complex. Claims in Ireland must generally be initiated within two years of the treatment or from when you became aware of the injury. Compensation can cover physical pain, corrective treatments, loss of earnings, and travel costs.

Key Aspects of International Dental Negligence Claims:

Time Limit (Statute of Limitations): You typically have 2 years from the date of the injury or the "date of knowledge" (when you realised the treatment was negligent) to bring a claim.
Liability Complexity: If you were referred by an Irish agency, the claim may be pursued against them in Ireland. Otherwise, legal action may need to be taken in the country where the treatment occurred, for example, Turkey. Your solicitor will advise here as it might be necessary to sue both the Irish agency and the dental professional abroad together.
Common Claims: Claims often involve nerve damage, infection, poorly fitted crowns/bridges, broken instruments left in canals, and improper implant placement.
Damages: You can seek compensation for:

A) General Damages: Pain and suffering.

B) Special Damages: Cost of corrective treatment, remedial work, and travel expenses.

What to Do:

Consult a Solicitor: Engage a solicitor experienced in medical negligence to determine whether you have a case and advise on the options.
Seek Independent Dental Opinion: Consult a dentist in Ireland to provide an expert opinion on the damage.
Gather Evidence: Collect records, X-rays, contracts, and any costs incurred by you from the trip abroad to get the dental treatment. If your trip abroad contained a part holiday you would need to distinguish the actual cost associated with the holiday from the expenses. the dental expenses

Potential Complications:

Jurisdiction Issues: Determining if the case can be heard in Irish courts.
Aftercare Issues: Difficulty obtaining records from the foreign clinic. All records should be supplied but sometimes these can be delayed but your solicitor will endeavour to speed these up.
Language Barriers: Understanding informed consent documentation. Consent should be clearly understood for the treatment to be received and any failure by the dental profession to obtain this irrespective of language barriers falls on the dental professional.

The Package Holiday and Travel Trade Act, 1995

The Package Holidays and Travel Trade Act 1995 is the primary legislation in Ireland that protects consumers who book package holidays and this can include the protection of consumer rights for receiving dental services abroad. It transposed EU Directive 90/314/EEC into Irish law, ensuring that travel organisers are legally responsible for the proper performance of the services they sell.

While the Act was brought in for consumer protection, there are a number of sections that apply in this Act for negligent dental service carried out abroad, namely:

A)Section 11: Liability for defective brochures

B)Section 12: Information to be provided before contract is made.

C)Section 14: Essential terms of contract

D)Section 19: Significance failure of performance

Your solicitor will advise on whether a claim falls with the 1995 Act and if so, will include that in a claim.

As stated at the outset, suing for services carried out abroad can be complex and time consuming so consult your solicitor early for advice on how to proceed.

DEFAMATION Application to Extend the Limitation Period of One-Year

Thu, 16 Apr 2026 11:15:49 GMT

The plaintiff issued defamatory proceedings in August 2023 regarding an allegedly defamatory statement by the second-named defendant, seeking damages (including aggravated and punitive damages) for defamation in respect of a phone conversation in July 2023.

There had been a previous incident in August 2021 involving a series of emails sent by first-named defendant to the CEO and Head of Fundraising at the Jack and Jill Foundation. The plaintiff had been a voluntary board member of the Jack and Jill Foundation since 2018.

The plaintiff applied to the court pursuant to section 11(2) (c) of the Statute of Limitations, 1957 (as amended) to extend the time from one-year to enable the plaintiff to bring in the earlier allegedly defamatory statements.

The plaintiff explained in her application that she delayed in issuing proceedings as she did not want to cause trouble for the charity when it was struggling due to issues caused by the Covid-19 pandemic. She also said that home-schooling her three young children during the pandemic had the result that the statements made by the defendants did not receive the consideration they perhaps deserved.

Additionally, another question arose from the plaintiff’s application being, as to whether or not in the event that the application was unsuccessful, the plaintiff would seek to rely on the August 2021 publications in support of the plea that the publication in July 2023 was made maliciously.

The High Court judge considered the case law for extending the time limit. In Quinn v Reserve Defence Force Representative Association [2018] IEHC 684 the statutory test was set out. The judge was cognisant that the jurisdiction to extent time in defamation cases only applied in exceptional cases.

In the Quinn case it was observed that the court is required “to carry out a qualitive assessment of the reason or reasons proffered for the delay. This involves a consideration of the quality and nature of the reason or reasons advanced and a weighing of the respective prejudices.”

In another case, he noted Joyce v Mayo Travellers Support Group [2023] IEHC 84 as authority to the effect that in considering the nature of the case, the court should assume that the plaintiff will be successful.

The judge was not satisfied that the reasons given by the plaintiff were particularly cogent or persuasive, finding that “even on their own terms either separately or together or when considered in the round, they are unimpressive reasons”.

The judge also stated that he was unconvinced that the plaintiff suffered a type of psychological paralysis by virtue of the August 2021 allegedly defamatory statements and that only by July 2023 had the plaintiff recovered her courage enough to issue proceedings.

The judge also considered whether because of delay by the plaintiff whether such evidence was available. He raised this because the second defendant claimed that he could not remember the phone call made in August 2021, and the judge found that entirely plausible.

Another consideration the court had to factor in was whether it was in the interests of justice in extending the time and whether if refused would that prejudice the plaintiff.

Decision

The prejudice to the plaintiff caused by the refusal of the application would not significantly outweigh that of the defendants should time be extended in circumstances where the defendants would be obliged “to defend a claim concerning publications in August 2021 issued well out of time and the detail of which was only notified to them in 2024”.

Accordingly, the High Court refused the application to extend the time.

Catherine Logan v Peter Wilson and David Godwin [2025] IEHC 284.

COMMERCIAL LAW Shareholders Agreement

Thu, 02 Apr 2026 15:27:13 GMT

A Shareholders' Agreement is a private, legally binding contract among a company’s shareholders, designed to regulate management, protect interests, and govern share transfers beyond the scope of the company constitution.

In the event of future disputes among shareholders, reference will be made to the providing of this Agreement.

Purpose

The purpose of having a shareholder’s agreement is:

a)It provides a formula to deal with any disputes among shareholders.

b)It protects minority shareholders.

c)It sets out how shares are sold, transferred, or purchased. This can enable existing shareholders to decide who can buy shares in the company.

d)Voting rights can be set out.

e)Matters dealing with the management of the company can be included.

f)Selling shares: rules can be provided for

g)Confidentiality.

h)Composition of Board members.

In start-up companies where there will likely be many shareholders coming in at different stages, a shareholder’s agreement is very important.

The Risk of Not Having a Shareholders’ Agreement

A dispute among shareholders can be disruptive to the operation of a business. Where is cannot be resolved internally. Reference can be made to the governing law, The Companies Act, 2014 but that invariable will involve the waring side to bring in solicitors, and it could end up in court, leaving for a judge to decide. That can involve great expense and a huge distraction to the running of the business.

Minority shareholders might have little say in the running of the business and might feel isolated.

It can be the case that some family run businesses do not see the need for this but as seen from some high-profile business families, when things go wrong, they can go horribly wrong without a shareholders agreement.

Timing

Ideally when a company is formed, a shareholders agreement should be put in place.

When forming a company, a shareholder’s agreement is wise to include. Your solicitor will guide you on this.

PERSONAL INJURIES Negligence Not Proven in Slip and Trip Fall in Workplace

Thu, 02 Apr 2026 15:24:40 GMT

The plaintiff worked as a dental assistant for the defendant from 2007 until the date of her accident on 20 June 2016.

In the afternoon of the day of the accident, she was carrying out hoovering on a flight of stairs in the defendant’s clinic when she stepped on the hose of the vacuum cleaner, lost her balance, stumbled, fell, and caused an injury to her right ankle.

The clinic was located in a building where patients enter through doors that are accessed by using external steps up to the entrance doors, which lead onto a return landing between a short flight of stairs leading up to the reception and treatment room, or leading down the stairs to the waiting room area in the basement

The plaintiff produced to the court, photographs of the area where the accident happened.

It was part of the plaintiff’s duties to carry our light domestic chores during quiet periods of the clinic.

On the day of the accident, the plaintiff started hoovering at the bottom of the staircase, but she had to stop occasionally to check if the phone was ringing. Prior to her accident, she had stopped approximately six times to ascend the stairs to check the phone.

On the last of these occasions, on descending stairs to return to the hoover, the arm of the hoover had moved which she did not notice causing her to trip and fall.

The plaintiff continued to work but on leaving her colleague noticed her limping and the plaintiff explained what had happened. The plaintiff alleged that her work colleague told her not to complain to their employer as it would only make him annoyed. In evidence her work colleague hotly disputed this conversation.

In cross examination, the plaintiff acknowledged that she knew exactly she had left the hoover on the staircase but stated that she was not aware that that the steel arm leading from the nozzle of the hoover, which had been resting against the banister, had fallen over while she had been upstairs checking the phone. She also stated that she had been blinded by strong sunlight coming in from the entrance doors which reached the staircase area.

The plaintiff acknowledged that there was CCTV coverage of the area where the accident occurred and was aware that after one month the tape would be cleared. She denied that her solicitor’s claim letter was delayed to pass the one-month period.

Questions were put to the plaintiff that several medical attendances made no mention of her stumbling and falling on a hose of a hoover at her place of work. The plaintiff claimed she had so informed the doctors at A&E.

It was put to the plaintiff that in a note taken on 23 June 2016, it had been noted that the plaintiff had come for review and had twisted her ankle four days previously and was unable to bear weight on it, or to walk. There was no mention in that note of any hoover. It was put to her that in a further note dated 27 June 2016, the history recorded noted that she had twisted her ankle eight days previously, but again there was no reference to any hoover. The plaintiff stated that she could not explain the omission of those details. She stated that she had definitely told the medical personnel in A&E about the circumstances of the accident when she had first visited it.

The plaintiff accepted that she had sent a text to the defendant which stated that she would not be returning to work, as she knew that she could not stand for any prolonged period. She accepted that when she saw Dr. Grant on 23 September 2016, it had been noted that she was “starting new job next week”. The plaintiff stated that that job would not have required her to be standing or walking for the entire day.

The plaintiff called supporting evidence by an engineer which pointed out the unsuitability of the area for safe cleaning to be carried out.

The defence called the work colleague of the plaintiff who mentioned the practise of cleaning the area during quiet spells. On being asked about what the plaintiff said when they were leaving work that day. The witness asked the plaintiff why the plaintiff was limping. She told the court that the plaintiff said it was from new shoes. She denied saying to the plaintiff not to mention the accident to the employer.

The defendant told the court that the first time he was informed by the plaintiff of her injury allegedly caused by the hoover, was in a letter from the plaintiff’s solicitor in April 2018. He said the CCTV was long gone from their system. He accepted that when vacuum cleaning the lower flight of stairs, it was necessary for the plaintiff to stop the hoover from time to time and to check the phone.

He denied that it was an unsafe place to work.

Engineering evidence was given on behalf of the defendant who had carried out a joint inspection of the clinic with the plaintiff’s engineer. He had also carried out a subsequent inspection on his own on 20th November 2025, then he took a further set of photographs showing the upper flight of stairs and the view from the reception area looking down towards that flight of stairs.

The engineer stated that in his opinion the system of work that had been in operation at the time of the accident was not an unsafe system.

Decision

On reviewing the evidence, the judge said that this was a very unfortunate accident – but that all it was, an accident. The judge did not accept that the workplace was unsafe. He said that under the Safety, Health, and Welfare at Work Act 2005, as amended, an employer is only required to take reasonable steps to prevent an accident that is foreseeable.

Consequently, the judge found that there was no negligence on the part of the defendant as either the employer of the plaintiff, or as occupier of the premises, in relation to the circumstances of the accident as given in evidence by the plaintiff.

The plaintiff case was dismissed.

Sharon Walsh v Juniper Orthodontics Ltd High Court [2026] IEHC 99]

PROBATE Where Probate Can Encounter Problems

Thu, 02 Apr 2026 12:16:42 GMT

It is highly advisable to engage your solicitor to manage the administration of a Will. Your solicitor will ensure the process will proceed promptly and correctly. Most probates proceed without complications, but issues can arise and where they do, your solicitor’s experience is invaluable in dealing with these.

Common problems that can arise

a)The nominated Personal Representative does not want to take on the responsibility or is unable, perhaps through illness, to do so. In this case your solicitor will apply to the court for a Grant of Administration with Will Annexed, to have the residuary legatee under the Will to administer the Will. In effect to take the place of the personal representative. The ‘residuary legatee' of the Will is the person entitled to inherit the balance of the Will after all creditors and beneficiaries have been paid.

b)The Personal Representative breaches their duty or fails to perform their duties. The personal representative of an estate has a fiduciary duty to all of the beneficiaries. This means that they have a duty to preserve all the assets in the estate in good faith and must put the interests of the deceased and the beneficiaries ahead of their own. If the personal representative acts in their own self-interest or otherwise fails to fulfil their duties during the probate process, there are legal remedies available. Your solicitor will advise on these. The court can remove them, and someone else can be appointed to take care of assets and oversee the probate process.

c)A Will can be contested. This is commonly where a person believes the Will did not represent the true intentions of the deceased or where they allege the deceased was influenced by another person in making the Will. Some relatives might allege the deceased was not of sound mind when making the Will. This can only be resolved by a court and will delay the final administration of the Will.

d)Creditors contest the amount due. Your solicitor will assist the personal representative where it is felt any creditor is seeking more than is believed to be correct.

e)Failure to collect all documents relating to the Will including any post sent to the deceased. Failure to do this could result in the non-payment of a creditor or the preferential payment to others.

The appointment of your solicitor to manage the probate process is particularly important to ensure everything is done correctly. Where a Will is contested it can become complicated so the experience of a solicitor will save time and ensure no further costly issues arise.

MEDICAL NEGLIGENCE If I am the victim of medical negligence, can I also claim for emotional distress?

Thu, 19 Mar 2026 10:04:07 GMT

If you suffer injury, whether physical or emotional, from acts of medical negligence, it stands to reason that you can claim for both provided, of course, that you can prove the injuries sustained came about as a direct result of the alleged acts of negligence and the conditions are bonafide.

Emotional or psychological distress is as valid a condition as its physical counterpart. Most people are familiar with anxiety, post-traumatic stress disorder, or depression. Sleep disturbance can be another sign of severe emotional distress.

These stressful conditions can severely affect your ability to work, maintain relationships and functional normally in life‘s everyday aspects. Some of these symptoms can be temporary while others are long lasting.

Can I claim for injuries that are only emotional or psychological following an act of medical negligence ?

You can indeed, but you must show that:

The injury was caused by the negligence or lack of due care on the part of a medical professional.
The emotional injury or condition suffered has been diagnosed and signed off by a qualified medical professional such as a GP, psychiatrist or psychologist.

For many years these claims, described as psychological trauma or emotional distress, have been accepted by the Injuries Resolution Board and the courts although, almost by definition, they are harder to establish than physical injuries. It is easy to see how an individual could suffer such emotional trauma or distress following a cancer misdiagnosis or perhaps where a hysterectomy is performed in error. Other claims, not quite as dramatic, can be more difficult to sustain.

You will need a strong body of evidence to make a claim for emotional distress as it can be relatively easy to fabricate such a condition. Medical reports will be required particularly from experts along with receipts or invoices for therapy sessions, medication prescribed and the like.

As with actual physical injuries, the Personal Injury Guidelines, introduced several years ago by the judges, provide a schedule of compensation payments based on the severity and longevity of the emotional injuries from minor anxiety to severe PTSD and depression.

A word of warning. Emotional or psychological injury claims can prove very challenging to establish more than those involving just physical harm. The defendants or their insurance company often tend to minimise or question the seriousness of the emotional trauma suffered by a plaintiff and it may take additional medical expert opinions to establish for certain that your claim for emotional distress is indeed a valid one.

There are also timeless involved in bringing these cases so the earlier you engage with your Solicitor the stronger your case will be.

DEFAMATION LAW IN IRELAND An Overview

Thu, 19 Mar 2026 10:01:50 GMT

If a person or organisation makes an untrue comment or statement about another person, that person can sue for defamation.

In say a work situation where you believed that a colleague did some act or omission that was not permitted regarding their work which might harm the business in some way and you felt obliged to report this to the employer, this would be a privileged statement. In doing so the protection only applies if you honestly believed that the statement you made is true. But if you later discover that you were wrong, and refuse to withdraw or correct your statement, you lose the protection of privilege.

Honest Opinion

To establish honesty as a defence, there is a heavy onus on the person making the statement to show:

The statement was based on facts.
The statement was of public interest and made without malice where the party making the statement believed the facts to be true.

An example could be where a broadcaster is sued over a statement made on air, the broadcaster must establish that they believed that the statement made was honestly held.

Generally, defamatory statements made about a person’s private life would not be a matter of public interest. It could though be harder for persons who have a highly visible public life, like entertainers, who frequently reveal aspects about their private life, to rely on the argument that a defamatory statement about them was not in the public interest and was therefore actionable.

Fair & Reasonable Publication

A statement made in good faith and about something that is in the public interest may not be defamatory. A court will consider:

The seriousness of the allegations
If the statement made it clear that that it was about suspicions or allegations, rather than facts.
If there were exceptional circumstances that made it necessary to publish the statement
If the person who was the subject of the statement was given the opportunity to give their side of events

The onus of proof in any of these defences falls upon the defendant who makes the statement.

Innocent Publication

Innocent publication may apply where a person is not responsible for the statement or the publication of the statement but contributed to distributing the statement in some way.

This defence is frequently used by social media companies for defamatory posts made on their platforms.

An Apology

A swift apology is a good type of defence. It does not wipe away the defamatory statement but will reduce the damages awarded or it might prevent legal proceedings being issued.

Offer of Amends

The maker of a defamatory statement may make an “offer of amends” in writing to the person who is alleged to have been defamed. That offer of amends will include an offer to make a suitable correction and a sufficient apology. The correction and apology will be published in an appropriate place. The offer of amends may also include an offer to pay compensation or damages.

If an appropriate offer of amends is not accepted, that refusal can be used in some cases as a defence to any later legal proceedings.

Correction Order

A court may issue a correction order, which orders the person who made the statement to publish a correction of the defamatory statement .

Injunction

The Court can issue an order that prohibits the publication of a defamatory statement. Note though that injunction proceedings are expensive so discuss this with your solicitor before rushing ahead with this relief.

Damages

A court will consider a number of factors after the defamation has been proven. The court will consider the seriousness of the damage caused by the defamatory statement and what impact it has had on the standing or reputation of the person defamed.

In all cases consult your solicitor if you believe you have been defamed.

PERSONAL INJURIES Emotional Stress Award

Thu, 19 Mar 2026 09:58:39 GMT

A case came before the Circuit Court to approve a settlement awarded by the Personal Injuries Assessment Board where a father and his three children were stuck in a toilet at Dublin Airport while their plane was being called for boarding.

The mother of the three children, who were aged nine, five and two was outside the locked toilet door trying to console the children.

The family were booked on a flight to Spain on a family holiday.

Their mother who was outside the toilet was trying to have the flight delayed so not to miss the holiday flight and at the same time to console her distressed children.

After two failed attempts by maintenance staff to open the door, the children became more upset.

Airport staff had been made aware of their emergency by pulling the emergency cord in the toilet which was the room for adult and child facilities.

When firefighters arrived after 50 minutes, the family were told to stand away from the door as they were breaking their way in.

The judge acknowledged that the whole experience was very stressful for the young children.

The problem with the door was that the inside handle of the door had come off when the family tried to exit.

Fortunately, the family eventually made their flight, but their holiday had been marred by their experience at the airport.

The PIAB assessed the distress at €21,000 being €7,000 for each child and the judge deemed that as appropriate.

Owen Nolan (Best Friend of Ailbhe, Hugh, and Max Nolan) v Dublin Airport Authority Circuit Court (Judge O’Donohue ) 13 February 2026

MEDICAL NEGLIGENCE Why Not Use Mediation in Medical Negligence Cases?

Mon, 02 Mar 2026 09:21:04 GMT

Medical negligence cases can be particularly lengthy and complex and therefore more expensive than other personal injury cases.

Construction disputes are often settled by mediation as are landlord and Tenant disputes. So, could mediation be employed in medical negligence cases? It could and indeed has been for some time.

What is mediation all about?

It is a voluntary process where a mediator, totally independent of both parties, assists the parties in dispute, typically a patient and hospital, to come to an agreed solution in settling the patient’s claim for compensation against the hospital.

In mediation, both parties are involved in any final decision, whereas in a court setting, it is decided by the judge alone. It is a more informal process and preserves the privacy of the parties which usually means it is much less expensive than court actions. We go into some further detail on these savings below.

Okay but how does it work in practice?

If the parties opt for mediation, they must first agree on a mediator who is usually a lawyer or Medic experienced in this area.

After hearing arguments from both sides, presented by their legal representatives, the mediator’s job is to assist the parties in coming to a settlement which often involves compromise. The outcome could be a final payment with or without an apology or another award reflecting the particular circumstances of the plaintiff.

What are the chief benefits of mediation in such medical negligence cases?

Privacy. Unlike hearings in open court, where reporters may be present, all mediation cases are held in private and any settlement agreed will be fully confidential between the parties. It is easy so to see why hospitals might prefer private mediation as opposed to a full hearing in court even where they might admit that a compensation payment is likely.
Savings both on cost and time. In any medical negligence court case, there are numerous appearances before the court seeking adjournments, discovery, costs or other applications. In fact, it can take a full year to come to court after you apply for the case to be set down for hearing. Mediation takes place over a far shorter time period, thereby reducing costs but a similar outcome in compensation can be achieved.
Informality and flexibility. There are no wigs and gowns in a mediation process. In addition, the parties could agree on special arrangements such as perhaps additional cost-free medical treatment for the plaintiff.

What did that Mediation Act 2017 do?

It brought the mediation process into the forefront of litigation by encouraging solicitors to use it as an alternative to court hearings so that the stress, time and costs involved could be reduced. The Act in fact compelled solicitors to inform their clients about the option to mediate and its benefit before they even start to issue court proceeding. The Act also underlines the confidentiality of mediation.

Finally, the act confirms that any agreement reached is to be legally binding with consequences if one party breaches the terms of the settlement.

Can mediation be a DIY process or do I still need a solicitor?

You should always engage a solicitor. Mediation is less stressful than the adversarial setting of a court, but it needs careful preparation and informed decision-making during the process. Your solicitor will assist you in all the steps involved making sure that your rights are fully protected and that you conclude the mediation with the best possible settlement.

PERSONAL INJURY/PRACTICE Accident in School Building, Claim Dismissed Because of Delay

Mon, 02 Mar 2026 09:14:46 GMT

While the subject matter of the case involved a personal injury which the plaintiff incurred when being pushed from behind while descending a staircase in the defendant’s school, the application before the court was to dismiss the case on account of prolonged delay by the plaintiff in pursuing the case.

Because of the delay, the defendant had previously sought to have the case dismissed. This case was Neiser v. Leinster Senior College, unreported, High Court, Phelan J., 29 June 2023. Mr Justice Phelan dismissed the motion to dismiss the case relying on the decision in Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459.

He cited from that judgment which said in part: ‘I refuse to make an order dismissing the plaintiff’s proceedings on grounds of inordinate and inexcusable delay being satisfied that this delay has not so prejudiced the defendant as to tip the balance of justice against allowing the case to proceed.’

Phelan J expressly stated that there was an “imperative” for steps to be taken, without any further delay, to secure a hearing date for these proceedings. As of the date of the judgment, the only procedural step remaining to be completed in order to obtain a hearing date was to make an application to the judge in charge of the Personal Injuries List. Nothing else was outstanding. The pleadings were long since closed and the discovery process completed.

However, the plaintiff’s side failed to apply for a date, despite numerous requests that they do so.

The plaintiff’s solicitors filed to come off record, but this was not followed through and the plaintiff's solicitor admitted that there was delay by his firm in processing the case which was not the plaintiff’s fault.

The solicitor acknowledged that the plaintiff had been given a “clear warning” by the court that there should be no further delay in obtaining a hearing date and that the plaintiff and her solicitors have not complied with that warning.

The principles governing applications to dismiss proceedings on the grounds of delay have recently been restated by the Supreme Court in Kirwan v. Connors [2025] IESC 21. The following points are of especial relevance to the circumstances of the present proceedings.

First, the law should recognise the fact that passage of time is important in and of itself, and can justify dismissal of a claim, without more justification.

Second, there is no mutual obligation in litigation requiring defendants to take positive steps to advance a case brought against them. Defendant inactivity is not normally a bar to dismissal.

Third, rules on dismissal of claims for want of prosecution are not themselves an impermissible interference with the right of access to courts to litigate claims and there is no presumption against dismissal.

Fourth, if a court does not dismiss the claim, it would be entitled to make strict case management directions on the basis that non-compliance with such directions would itself justify dismissal.

In the current application to dismiss the proceedings, Simons J observed that the judgment of Phelan J of 29 June 2023 was that the refusal of the application was contingent on steps being taken without any further delay to secure a hearing date for the proceedings. These steps had not been taken.

In seeking to dismiss the motion to terminate the action because of inordinate delay, counsel for the plaintiff submitted nevertheless that there were exceptional circumstances which justified further indulgence. First, it was said that the plaintiff is unemployed and suffers financial hardship. Second, it was said that the plaintiff suffers from depression and ill-health caused by the alleged incident. This, it was said, has led to difficulties in obtaining instructions from the plaintiff. Simons J rejected all three grounds and said:

‘The plaintiff has failed to establish that there are any exceptional circumstances which might justify the delay from June 2023 in having a hearing date fixed. As explained in Kirwan v. Connors (per O’Donnell C.J.) a court, in deciding not to dismiss a claim, is entitled to make strict case management directions on the basis that non-compliance with such directions would itself justify dismissal. Here, the High Court, in its judgment of 29 June 2023, made it plain that steps were to be taken “without any further delay” to secure a hearing date for the proceedings. This imperative has not been complied with and there is no justification for this non-compliance. It follows, therefore, that the proceedings must be dismissed by reason of delay.’

The application to dismiss the personal injury proceedings because of delay was granted.

Neiser v Leinster Senior College Ltd and Idemudia Akpekpe (third party) High Court (Simons J) [2026] IEHC 15

FAMILY Assisted Decision-Making

Mon, 02 Mar 2026 09:08:26 GMT

The law governing this comes under the Assisted Decision-Making (Capacity) Act, 2023

How Does It Work?

It was created to assist adults who, due to illness or other disability, lack the capacity to make decisions for themselves.

The legislation offers a three-tiered structure depending on the person’s level of capacity, namely:

Decision-Making Assistance
Co-Decision-Maker
Decision-Making Representative (DMR)

Further, there are two other mechanisms, namely:

Advance Healthcare Directives and
Enduring Powers of Attorney (EPA)—allow individuals to set out their preferences in anticipation of future incapacity.

The Abolition of Wardship

For people who do not fit into the new system there is a gap caused by the abolition of the wardship system. This has resorted in healthcare professions having to apply to the High Court to protect those who are most vulnerable.

The kind of orders sought in the High Court can vary; examples are:

Anorexia
On life-support
Requiring urgent surgical intervention

Discharge from adults in wardship

Review and discharge applications can be made by:

The ward
The wards committee, and
Another with leave of the court

Rules of the Superior Courts provide that the High Court must carry out a review and discharge every adult from Wardship by 26 April 2026 . There is currently no provision in the Act for:

Extension of the April 2026 deadline
The consequences if the court cannot review and discharge all wards by April 2026
The position of wards who have not been reviewed or discharged by the deadline.

The Wards of Court Office has highlighted several reasons why there have been so few discharge applications, which include:

Hesitancy to change to an unfamiliar arrangement.
Uncertainty surrounding the proposed new management of wards' funds.
Costs of the discharge process
Intricacies of the discharge process
Content with the Wards of Court service already provided.

Enduring Powers of Attorney

Enduring Powers of Attorney is also in the legislation. But there are practical issues around their creation, execution, and notification requirements which have raised concerns among legal practitioners and affected individuals.

Talk to your solicitor if you have a family member that might need one of these options. They will guide you on which route to take.

PERSONAL INJURIES Award for Firearm Injury in Dispute Over a Right of Way

Wed, 28 Jan 2026 09:25:40 GMT

The plaintiff had bought some land that was adjacent to the defendant. There was a laneway leading to his land and the defendant was not happy with the use of it by the plaintiff.

On the day of the incident, the plaintiff was driving up the laneway but was obstructed by the defendant and his son. The plaintiff tried to go past them, but they blocked him. He said the defendant threatened and verbally abused him and demanded that the plaintiff get off the laneway.

The plaintiff explained to the court that the situation became extremely volatile.

The defendant did not appear at the hearing. Previously he was charged and convicted, on a guilty plea, for the firearm offences of possession of a firearm without a certificate and assault causing harm for which he received a three-year suspended sentence.

The plaintiff said in evidence that the defendant fired several shots from a shotgun at him. The pellets smashed the windows of the digger. He was hit by several of the pellets. One lodged in his eye, and he subsequently lost consciousness. He said the experience terrified him and he was in fear for both his own life and that of a friend who was travelling a short distance behind him.

In total 14 pellets were embedded in his face.

The result of the incident caused the plaintiff to lose interest in his farming work, become withdrawn and isolated. Fortunately, he obtained medical assistance and after two years was much improved.

The court award the plaintiff a total of €128,000 which included €30,000 for exemplary and aggravated damages.

Sweeney v Friel High Court [2025] IEHC 716

Frequently Asked Questions on Compulsory Purchase Orders

Wed, 28 Jan 2026 09:24:26 GMT

What is a Compulsory Purchase Order (CPO)?

A CPO is a legal order which allows certain statutory bodies, such as local authorities, which need to acquire land or property for large projects (e.g. road widening or Luas schemes) to do so without the consent of the owner where a compelling case in the public interest can be demonstrated.

Compulsory purchase powers enable a local authority to acquire land, property, and other interests compulsorily to carry out their public function.

What is the Purpose of a Compulsory Purchase and owner Compensation?

The compulsory acquisition of land takes place in Ireland to allow a public infrastructure project, perhaps to support new housing, to go ahead for the common good. The principle of compulsory purchase compensation is to seek to place the affected party, in so far as money can, in no better or worse position than they were prior to the compulsory purchase.

What are the Steps of a CPO Process?

A statutory body decides to make a CPO.

Affected parties will be served with a notice stating that the Order is about to be put on public display and submitted to An Coimisiun Pleanála for confirmation.
Newspaper notices will be published.
Objections/submissions can be made to An Coimisium Pleanála, and this may result in an Oral Hearing at which affected parties can formally put their views forward.
An Coimisium Pleanála either confirms, amends or rejects CPO order and publishes details of the decisions in this regard.
After expiry of objection period, the CPO is operative.
Local Authority serves Notice to Treat on the affected parties and discussions commence regarding the level of compensation available.
The affected party lodges a claim for compensation. This can be made by the claimants’ valuer.
On reaching agreement, compensation is paid, otherwise the matter may be referred by either party to the Property Arbitrator to assess compensation.
Acquisition is finalised, compensation paid.

How do I know when a CPO application has been made affecting my property?

If your property or portion of it is to be the subject of a CPO, you will receive a letter notifying you that an application has been made and of the timeframe available to you to make submissions (representations) to the relevant planning authority.

Can I object to the making of a CPO?

You certainly can. Once a CPO application is made to the relevant planning authority there is a statutory consultation process during which time submissions and objections to the CPO can be made to the local authority. In most instances for large infrastructure projects, the decision-making authority is An Coimisium Pleanála.

What is a Notice to Treat?

The Notice to Treat is a formal request served by the local authority to agree a price for the portion of land or property identified for CPO. It states that the acquiring authority is willing to treat or make an offer to purchase the owner, lessee and occupiers' interest in the land and invites affected parties to submit details of their claim. The Notice to Treat is not considered a binding contract and does not in itself have the effect of passing any interest or estate in land to the acquiring authority. The transfer of legal interest(s) in lands occurs at a later stage when your solicitor completes the title transfer to the local authority.

The original Notice to Treat must be served on the named person. A copy can be sent to a representative where requested.

What is a Notice of Entry?

A Notice of Entry is a formal legal notice which is served by the local authority either at the same time or following the service of a Notice to Treat and gives the acquiring authority power to enter on and take possession of the relevant lands to be acquired. This may occur before compensation is agreed and before money has been paid. The affected party/interest is given a minimum of 14 days’ prior notice and typically access is arranged between your solicitor and the other parties by agreement.

How can I prepare a Compensation Claim?

Upon receipt of a Notice to Treat, a claimant’s legal duty to engage starts. The claimant may wish to obtain independent professional advice and representation in preparing and negotiating a claim for compensation. The cost of such services is part of a normal claim for compensation and is typically made up as follows:

Solicitor’s costs for conveyancing and advice on the CPO process.
Valuer’s / Agronomists fees to cover negotiations on compensation.
Other professional fees associated with the CPO.

Who can I contact to Prepare my Claim?

There are several professional representative bodies where some of their members practice in the area of compulsory purchase and compensation. These include the Society of Chartered Surveyors Ireland (SCSI); Institute of Professional Auctioneers & Valuers (IPAV); Royal Institution of Chartered Surveyors (RICS); Agricultural; Consultants Association (ACA); and the Law Society.

How is the Compensation Assessed?

Where the entitlement to statutory compensation exists, each case is assessed on its own merits. The usual rule is that you are compensated for the value of the lands taken by the local authority along with any loss of value in the lands retained caused by the CPO.

How do Negotiations Happen?

When the compensation claim has been submitted, it is normal for negotiations to take place between the valuers appointed to act on behalf of the local authority and the owners’ valuer. During those Negotiations, an agreement on compensation can be reached with an extensive list of accommodation works i.e. fencing, walls, water supply, drainage, relocation of septic tank, double glazing etc. Sometimes a monetary contribution can be agreed in lieu of the provision of those works items. Otherwise, the accommodation works will generally be completed prior to or during the main construction contract.

Yes, but what if Compensation Is not Agreed?

Where it is not possible for the claimant and the local authority to reach agreement on the compensation payable, the law provides for an independent arbitration process whereby an arbitrator, after hearing the evidence from the respective parties determines the amount payable. The decision of an arbitrator is binding on both parties. Either the owner or the local authority can apply for the appointment of a property arbitrator.

When do I receive my Compensation?

Once the negotiations process is complete and a proposed settlement is reached between the parties, or following an Award from the property arbitrator, the matter is referred to each side’s respective legal representatives to undertake the conveyancing (transfer of ownership) process and then the compensation is paid. It is important that your solicitor ensures that your legal title documentation is in order as only good and marketable title is acceptable to the local authority. Difficulties in payment of compensation may arise if clear title or ownership details cannot be confirmed by your solicitor.

The CPO process can be long and somewhat complex. It is in your own interests to engage with your solicitor and valuer at the earliest possible stage to ensure the best outcome for you as an owner.

COMPANY LAW Petition to Wind Up Company

Wed, 21 Jan 2026 08:46:57 GMT

The petitioner who is a director and shareholder in software company Sulu Software Consultancy Ltd, sought to wind up the company pursuant to the Companies Act, 2014, section 569 (1) (e) on the grounds that the Company has, due to a breakdown in the relationship with one of the founders, essentially ceased to function and is on the cusp of insolvency.

The respondent objected to the application to wind up the company.

He was also a director of the Company and, at the time the petition was presented, a shareholder, holding just over 25% of the issued share capital of the Company.

At the time the application to the court was made, the company was on the brink of insolvency, with no employees and very little activity happening.

The application to the court was for the court to exercise its discretion on the ‘just and equitable’ ground on arguments put forward by the respondent.

The grounds put forward by the respondent were:

(i) The petitioner had organised the acquisition of the respondents shares in the company after the respondent had resigned.
(ii) The petitioner was part of a plan to remove the non-compete clauses from the contracts of employment of key staff, which was proposed and supported by all the shareholders, except for the respondent; and
(iii) The petitioner had started to work on a new startup company which did not include the respondent.

Also, the respondent urged that the real purpose of the petition was to frustrate his proposed Oppression Proceedings and the Court should exercise its discretion not to grant the winding-up petition in all the circumstances.

The petitioner and respondent were founders of the company which was to design software to help companies leverage the benefits of using crypto currency and associated technology.

There was no dispute that there had been an irretrievable breakdown in the relationship between the respondent and the company.

Both parties agreed that the company was on the brink of insolvency.

The petitioner explained to the court that the company was a start-up with start-up funding which was virtually gone and the Oppression Proceedings by the respondent made it almost impossible to attract new investment. As a result of that, the company passed a resolution supported by all of the shareholders except the respondent, releasing all of the founders, including the respondent, from their non-compete clauses. The Board Minutes in respect of that decision indicated that it arose in “consideration of the financial position and poor future prospects of the Company.”

The court considered the legislative provisions under the Companies Act, 2014 and relevant case law.

Very extensive submissions were made by both sides and in considering these together with the legislation and case law, the court was satisfied that the appropriate exercise of the court's discretion was to accede to the petition and to make an order for the winding up of the Company and the appointment of the liquidator. Having considered the factual context and having taken account of the submissions made, the court ruled that it was just and equitable that the company be wound up.

Mr Justice Quinn said: ‘The principal reason for this is the undisputed fact that the company is on the cusp of insolvency and has literally only months to go before it runs out of funds and there is no plausible prospect of this not occurring. No solution has been identified that will enable the Company to avoid an imminent insolvency. As Collins J. says in Re Lanskey Ltd. [2022] IECA 34 “there was no adequate or satisfactory alternative remedy here”. To refuse the petition would be to create an unsatisfactory situation. The Company has currently no employees and is carrying on minimal activity. In a few months, the Company will be insolvent with no cash or other assets, and it will be difficult, from a practical point of view, for any liquidator to carry out the functions necessary to wind up the Company properly.’

The judge observed that without investment the company could not fulfil the purpose for which it was created.

In all the circumstances, the court found that it was just and equitable to have the company wound up.

O’Neill (petitioner) v Hudner (respondent) High Court [2025] IEHC 669.

MEDICAL NEGLIGENCE Settlement Agreed for a Brain Bleed

Wed, 21 Jan 2026 08:40:16 GMT

The plaintiff went to Tallaght University Hospital A&E on 8 August 2020 complaining of a severe headache and said he had headaches over a 10-day period. Three days after attending the hospital, he collapsed from a brain bleed.

Counsel for the plaintiff told the court that while at the hospital the plaintiff received a cursory examination and was then discharged but three days later, he collapsed at his home.

It was submitted that the plaintiff suffered a very bad bleed in the brain and it was his side’s contention that a CT brain scan should have been carried out on the August visit to the hospital emergency department. Counsel submitted that a scan may have shown traces of blood cell breakdown and he could have had a lumbar puncture and been transferred to another hospital for treatment.

It was claimed that there was an alleged failure to take any reasonable or appropriate care of the plaintiff when he attended the A&E of Tallaght University Hospital in August 2020.

It was further claimed there was an alleged failure to properly examine, investigate and treat him in a timely manner. It was also claimed there was an alleged failure to give sufficient attention to his presentation and complaints of changed and increased frequency, intensity, and severity of headaches.

It was further contended that the plaintiff’s complaints were allegedly inappropriately and erroneously attributed to his longstanding migraine. There was, it was claimed, an alleged failure to investigate Mr Cully’s headaches with neurological examination in a timely manner.

Counsel for the hospital responded saying that liability was hotly contested in the case and the big issue was the contention by the defendant that the CT scan imaging should have been performed during the A&E visit.

Counsel for the hospital further submitted that it was the hospital’s case that had a CT brain scan been performed on the August visit to the emergency department, it would not have shown a brain bleed and could have been falsely reassuring. The hospital contended that it was unlikely the plaintiff suffered a brain bleed before August 11, when he collapsed at home.

All the claims were denied, and it was contended by the hospital that the plaintiff received reasonable and appropriate care when he attended the emergency department of Tallaght University Hospital on 8 August 2020.

It was further contended that the typical features of a brain bleed were absent, and it was contended that it was reasonable to attribute Mr Cully’s symptoms to a longstanding migraine history and the symptoms complained of were more in keeping with migraine. The plaintiff, the hospital claimed, was given appropriate advice, treatment, and care for the presenting complaint.

During a break, the two sides reached a settlement which was read to the judge for approval. The judge agreed on the division of liability of two thirds against the plaintiff and one third against the hospital amounting to a settlement figure of €1m.

Cully v Tallaght University Hospital High Court (Mr Justice Paul Coffey) 9 December 2025.

BANKING/PROPERTY REPOSSESSION

Mon, 08 Dec 2025 11:23:28 GMT

KBC bank sold on a loan to Pepper Finance after it started possession proceedings against the borrower. But did Pepper follow the correct procedures in setting itself up as the new plaintiff?

Borrowers in recent years became used to receiving letters from their lender informing them that their loans have been acquired by a new entity to whom they should make future payments.

A common term for these new entities is vulture funds and they are not slow in taking action against defaulting borrowers through the courts.

However, sometimes the new vulture fund might purchase a loan book some time after the vendor/bank had actually issued proceedings against the borrower and even obtained judgement.

A borrower was entitled to appeal a possession judgment to the High Court but in that case, it became necessary for the new vulture fund to have itself substituted, as it were, for the original bank plaintiff in the appeal proceedings.

A recent case in the High Court highlighted that there was some legal uncertainty about the exact procedures for inserting the new vulture fund plaintiff in such proceedings and the judge remitted the issue on to the Court of Appeal for them to determine.

If the new plaintiff was incorrectly inserted into the proceedings, it followed that any resultant orders could be challenged and maybe null and void. Historically, the vulture funds had applied to the courts to have themselves substituted as a new plaintiff in place of the old bank plaintiff.

However, the judge queried this and quoted an earlier high court case IRBC v Halpin which suggested that in an appeal to the Court of Appeal, the correct order to be made (where a transfer of loan has occurred between the Circuit Court case and the hearing of an appeal) is that the new vulture fund transferee be joined as an additional party to the appeal proceedings as a second plaintiff rather than merely stepping into the shoes of or being substituted for the original plaintiff.

A substitution order made midway through an appeal has the effect the judge said of appearing to give retrospective judgement to the newly added party and that would not be correct.

He therefore sent the issue of the precise form a change of party application should take on to the Court of Appeal to determine

Pepper Finance Corporation Ireland DAC v Treacey O’Neill [2024] IEHC 742

PERSONAL INJURIES Damages Awarded for Nervous Shock

Mon, 08 Dec 2025 11:18:01 GMT

A passenger on a boat that encountered a rough sea crossing sued Irish Ferries for the trauma she suffered from the experience.

The plaintiff, Susan Burt, described the sea journey as a ‘hideous and harrowing experience,’ on the sea crossing. She told the court that she thought that she was going to die when the boat was tossed around. At one point the boat lurched to an angle of 33 degrees during Storm Imogen about 10 years ago when the boat was sailing between Cherbourg and Dublin.

The court was told that conditions were so bad that the boat could not drop anchor or risk docking anywhere. Instead, it had to sail back and forth for 18 hours in what coastal shelter it could find until the storm eased.

The court was told that passengers were screaming with the extreme sailing conditions. Items were dismantled and flying through the air, dishes were smashing, furniture was sliding up and down decks and cabin floors and when the ship rolled, passengers had to crawl on all fours to get around.

The plaintiff thought, as did others, that the ship might capsize.

Previous claims by some passengers were settled for between €14,500 and €23,000 for what they endured and some of these were awarded to children.

His Honour Judge Callan considered the mental trauma suffered by the plaintiff in considering the level of damages. He noted that the plaintiff had not reached

the threshold of having suffered PTSD according to psychiatric reports though she had been exposed to sustained and continuous shock, an experience that she

should not have had to endure.

Considering all the facts, the judge awarded €17,500 in damages to the plaintiff.

The case was taken in the Circuit Court and as the award was below the threshold for damages in that court, the barrister for Irish Ferries asked the court to award legal costs on the District Court scale. The judge declined and awarded costs on the Circuit Court scale because the proceedings had been ongoing for a considerable time and the court was impressed with the evidence of the plaintiff.

Susan Burt v Irish Ferries Circuit Civil Court (His Hon. Judge Chris Callan) 27 June 2025.

MEDICAL NEGLIGENCE How Medical Negligence Claims Work in Ireland

Mon, 08 Dec 2025 11:15:33 GMT

Following an accident, you should equip your solicitor with all documents and details necessary for him to get an overview of the facts and decide as to who is liable for the accident. He/she will then be able to commence a claim on your behalf.

Do I have to go to the PIAB?

You are obliged to engage with the Injuries Board in most personal injury cases but, in medical negligence cases, you can bypass the Injuries Board and issue proceedings directly in the courts.

You have two years to initiate such proceedings, and this time limit is a strict one unless you only realised you had an injury or condition (caused by medical negligence) outside the two-year time limit.

Settlement or court hearing?

Most claims, even after proceedings are well underway, are settled out of court and without any need to go to trial. Some cases, (perhaps those lacking in merit) will be fully defended by the insurance company and are more likely, following the breakdown of settlement discussions to end up in a full court hearing.

What happens in the courtroom itself?

Your team, as plaintiff, will start off outlining the case to the judge and the other side, the defendant/insurance company, will have a right of reply. The judge will hear evidence from the plaintiff and the medical expert opinion witnesses. Again, the defendant can challenge some of their comments by way of cross-examination and produce their own expert independent witnesses.

The judge then sums up and largely based on the medical reports, will find in favour of the plaintiff or defendant as the case may.

I am a somewhat nervous person. Do I have to spend lots of time in court describing my injuries?

No. You will not spend hours in the witness box describing your medical injuries as your medical witnesses will do this for you. You will merely be asked to say that you were unwell and therefore relied on your surgeon/GP/physician to treat you properly and adequately.

Do I have to agree to go to mediation as I really want my day in court?

The short answer is no but you would be well advised to consider mediation as an alternative to court hearings which will be more daunting and expensive.

For some years the courts have tried to encourage all parties in the more complex personal injury actions to consider going to mediation. Quite recently the courts issued a practice direction bracket (HC131) to all legal practitioners whereby the plaintiff’s team must formally offer mediation to the opposing party within three weeks of obtaining a trial date and agree to engage in that mediation process within six weeks of their offer being accepted.

PERSONAL INJURIES High Court Award Reduced for Exaggeration by the Plaintiff of her Symptoms

Mon, 08 Dec 2025 11:13:42 GMT

The plaintiff’s car was rear-ended in a motor accident at traffic lights where the defendant insurer had accepted liability. The accident occurred in December 2017. Her case came before the High Court on an assessment-only basis. However, a question arose as to whether the defendant could be held liable for PTSD which was alleged to have resulted from the accident. If that was the case, then to what extent to which the plaintiff’s ongoing physical and psychological symptoms were properly referable to the accident.

At the time of the accident, the plaintiff was wearing her seat belt, but the air bags did not deploy. Later that day, she felt unwell and attended CareDoc. From here she was referred to hospital where she was diagnosed with soft tissue issues to her neck, shoulder and right arm.

The plaintiff claimed that she took seven weeks’ sick leave from her job but on her return, she claimed that she found it difficult because of her injuries. She also claimed that she suffered anxiety, flashbacks and had difficulty sleeping.

At the end of December 2021 her employment was terminated and from September 2022 she started to receive an invalidity pension. She has not worked since, and she and her daughter became homeless in March 2023.

Prior to the accident, the plaintiff had some personal difficulties. Her parents died and she had to take medication to cope with difficulties she had with a work colleague. However, she accepted that at the time of the accident she was not experiencing any mental health issues.

The defendant insurer had accepted liability. However, a question arose as to whether the defendant could be held liable for PTSD alleged to have resulted from the accident and if so, the extent to which the plaintiff’s ongoing physical and psychological symptoms were properly referable to the accident. It was submitted by the defendant that the accident was not the cause of the plaintiff’s mental health.

The defendant argued that the accident was not causative of the plaintiff’s mental health problems and that same were in existence at the time of the accident, relying on the fact that the claim was introduced very belatedly into the plaintiff’s case and that she improperly failed to disclose relevant prior mental health history until shortly before the hearing.

The judge was not impressed with the plaintiff’s failure to disclose her prior mental health issues and that she was inclined to overstate her symptoms.

However, the judge noted that:

“even allowing for a margin of exaggeration by the plaintiff of her symptoms”,

he was satisfied from the medical evidence tendered that the plaintiff was no longer suffering from anxiety and depression at the time of the accident.

The judge commented that the plaintiff was a poor candidate for the accident because of her psychological vulnerability, the “eggshell skull” rule required the defendant to take the plaintiff as he found her.

Nervous shock was considered in light of Kelly v Hennessy [1995] 3 IR 253, and the judge was satisfied that the plaintiff met its requirements.

The judge explained that some sort of injury was foreseeable arising from the accident.

With causation established, the plaintiff would not have suffered symptoms consistent with PTSD from January 2018 onwards but for the accident, but that a range of external factors not properly referable to the accident contributed to the length and severity of her mental health symptoms. In other words, the external facts were a consideration of the plaintiff’s mental heal but not directly caused by the car accident.

Accordingly, the court concluded that damages would fall to be assessed on the basis that 50% of the plaintiff’s psychiatric symptoms in the period from the accident to trial were attributable to the accident itself.

Having regard to the relevant case law on the principles applying to awards of damages in personal injuries cases and on the approach to multiple injuries cases, the judge determined that the plaintiff’s psychiatric injury was the most significant and assessed damages on a “pre-Guidelines basis” at €50,000 for past suffering and €10,000 for future suffering.

Having discounted that figure to €30,000 to take into account the contributing and exacerbating external factors not attributable to the accident, the court uplifted that figure by €35,000 for the plaintiff’s neck, shoulder and back injuries.

Therefore, the High Court awarded the plaintiff €65,000 in general damages, together with special damages and loss of earnings already agreed at €25,000.

Sykula v O’Reilly [2025] IEHC 638.

WILLS: Alteration to a Will Disallowed by High Court

Wed, 03 Dec 2025 06:20:22 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.

PERSONAL INJURIES Infant Awarded Compensation at a Folk Park

Wed, 03 Dec 2025 06:17:16 GMT

A seven-year-old girl received a settlement for a horse bite while she was attending Bunratty Castle and Folk Park in with her parents when she was eighteen months old.

A proposed settlement of €15,000 was submitted to the court for approval.

The horse bit the toddler on the wrist and elbow on her left arm during a family visit to Bunratty Folk Park. Her injuries, the judge added, were "not severe". Liability was not contested.

The barrister for the child said that her client had the benefit of a medical report and a psychiatric assessment from consultant child and adolescent psychiatrist, Dr Eithne Foley.

Counsel said that the medical evidence shows the physical sequelae resolved very quickly and it was the psychological and psychiatric issues that led the plaintiff to be advised to attend for play therapy.

Counsel said that the child attended 12 sessions of play therapy, “and she seems to have medically made a full recovery’’ . The medical reports said the girl is a happy child with no functional impairment and has made a full recovery. The accident though, had been very upsetting for the child.

Judge Comerford approved of the settlement figure noting that it was always better that someone makes a complete recovery, though the awards are less. He also noted that reports prepared for the court indicate the girl is doing very well socially and academically. He awarded Circuit Court costs to the girl, and he directed that the sum of €15,000 be paid into court and held there for the benefit of the girl until she reaches the age of 18.

Infant (Suing by her Mother) v Bunratty Castle and Folk Park (His Hon. Francis Comerford) Ennis Circuit Court 8 October 2025.

PERSONAL INJURIES Settlement for Exposure to Asbestos

Fri, 21 Nov 2025 09:52:59 GMT

Christopher Furlong was a machine operator with the defendant who worked at their Walkinstown factory. He worked there for eleven years.

The case was brought by his daughter as the plaintiff had since died.

The plaintiff claimed that Mr Furlong was continually exposed to asbestos at his place of work. The court was told that spots were found on Mr Furlong’s lungs during a scan in July 2020 and terminal cancer was diagnosed in September 2020. In May 2021, Mr Furlong died.

It was submitted to the court that during the course of his employment, Mr Furlong was continuously exposed to asbestos material resulting in him sustaining severe personal injuries, leading to his death on May 30th, 2021.

It was further submitted that Mr Furlong had been exposed to a risk of injury which the company knew or ought to have known, and there was an alleged failure to take any adequate precautions for his safety while he was engaged in his work in the premises at Walkinstown.

Additionally, it was also claimed there was a failure to carry out any adequate tests or inspections of the premises to determine the level of asbestos allegedly there.

The defendant, Smurfit Kappa denied all the claims and contended if Mr Furlong had suffered any alleged personal injury, it was not foreseeable or preventable. They also submitted to the court that Mr Furlong had exposed himself to the risk by virtue of the fact that he was a cigarette smoker.

Liability in the case was disputed especially in relation to trying to establish what happened over 50 years ago.

However, both parties reached a settlement which was read to the court and met with the approval of Mr Justice Coffey of a total figure of €150,000 for the plaintiff.

McCann v Smurfit Kappa Group High Court (Mr. Justice Coffey) July 2024.

TRADEMARKS The Court of Appeal Overturned a Dispute Over a Clothing Manufacturing Trademark

Fri, 21 Nov 2025 09:47:59 GMT

Italian clothing company Diesel SpA disputed the right to use the trademark, ‘Diesel’ by Irish company Montex Holdings Ltd in a long-running case.

The Italian company sold jeans and other items in Ireland since 1982. The Irish company Montex’s predecessor had used this trademark since 1979, and in September 1992, Montex applied to the Controller of Patents, Designs and Trademarks to register the word ‘Diesel’ for their jeans.

Diesel raised their objection to Montex in January 1994 and sought to register the name Diesel for their own company. They claimed that there would be confusion in the market if Montex had the use of the same name.

In 1998, Montex’s application was declined as it had failed to establish that there was no likelihood of deception or confusion with Diesel’s offerings, thus failing to meet the requirements of the Trademarks Act 1963 .

Montex appealed to the High Court but failed. They failed again in the Supreme Court. But in 2013, the Controller upheld Montex’s opposition to Diesel’s trademark applications. The Controller ruled that Diesel was not the proprietor of the trademark and that there would be confusion if Diesel’s mark was allowed on the register.

Diesel appealed this ruling to the High Court where it was successful. The High Court judge found that Diesel was the proprietor of the marks accepting that confusion would arise if Montex also appeared on the register as owner of the same mark.

Montex appealed against the High Court’s decision to the Court of Appeal. They based their appeal on a number of points including that the issue of proprietorship was res judicata (the matter cannot be raised again) having regard to the earlier decisions of the High Court and the Supreme Court. They also submitted that the High Court erred in finding that the issue of Montex’s bona fide use of the trademark was not conclusively decided in the earlier proceedings and erred in allowing new evidence on that issue.

The Court of Appeal considered the judgments given previously in this case. In regard to the res judicata issue, this required the High Court judge to find that Montex was the proprietor of the mark, a matter which had been decided in Montex’s favour initially in the High Court and which had been accepted by the Supreme Court.

The Court of Appeal declined to consider further questions of alleged copying or wrongful conduct by Montex and the effect of same on Diesel’s application for registration on the basis that their determination was unnecessary, given that the Supreme Court had unequivocally concluded that confusion within the meaning of s.19 of the 1963 Act “prevents registration, irrespective of whether there is blameworthy conduct or not” .

The Court of Appeal determined that it was not open to the High Court to permit registration of Diesel’s mark on the basis of Montex’s conduct or blameworthiness, where same was irrelevant to the application of s.19.

Therefore, the Court of Appeal allowed the appeal of Montex.

Diesel SpA v The Controller of Patents, Designs and Trademarks and Montex Holdings Ltd [2025] IECA 211

LANDLORD & TENANT Rent Increase of €3,000 Declared Valid

Fri, 21 Nov 2025 09:44:19 GMT

A landlord let a house out for rent at a monthly charge of €1,254 in June 2014 to tenants Amena Ghnedi and Essam Bensaad in Tallaght, Dublin 24.

In May 2024, the landlord served a review seeking to increase the rent to €3,000. He did so a month after receiving a market valuation from two estate agents. The landlord also provided comparisons to properties in Dublin, including a five-bedroom house being rented for €4,000 per month.

The tenants claimed that the house had only two single bedrooms and that the dining room was also being used as a bedroom.

The tenants disputed the landlord’s valuation and claimed the valuations with other houses were not comparable. They also claimed the size of the bedrooms was below the size recommended by building regulations.

Ms. Ghnedi pointed out to the RTB (Residential Tenancy Board) that the landlord had advertised the house as a three-bedroom house when he put it up for sale in June. The house was sold for €477,000 in September and the tenants vacated the house in April 2025.

The landlord told the Board that he had received permission in 1989 to convert the attic to a bedroom and said this had been done before the introduction of building regulations.

The landlord said the Rent Pressure Zone (RPZ) restrictions did not apply to his property and he had two independent opinions on what rent he should charge. However, the tenants disputed that the valuations obtained were independent.

The RTB said the property was a three-bedroom dwelling. They disagreed with the tenants that the valuations were not independent.

On finding that the landlord was entitled to increase the rent, they ruled that the tenant pay the arrears amounting to €13,968.

Doran v Ghnedi and Bensaad RTB October 2025

WILLS: Alteration to a Will Disallowed by High Court

Tue, 28 Oct 2025 14:15:08 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.

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 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.

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

PERSONAL INJURIES Infant Awarded Compensation at a Folk Park

Tue, 28 Oct 2025 14:10:47 GMT

A seven-year-old girl received a settlement for a horse bite while she was attending Bunratty Castle and Folk Park in with her parents when she was eighteen months old.

A proposed settlement of €15,000 was submitted to the court for approval.

The horse bit the toddler on the wrist and elbow on her left arm during a family visit to Bunratty Folk Park. Her injuries, the judge added, were "not severe". Liability was not contested.

The barrister for the child said that her client had the benefit of a medical report and a psychiatric assessment from consultant child and adolescent psychiatrist, Dr Eithne Foley.

Counsel said that the child attended 12 sessions of play therapy, “and she seems to have medically made a full recovery’’. The medical reports said the girl is a happy child with no functional impairment and has made a full recovery. The accident though, had been very upsetting for the child.

Infant (Suing by her Mother) v Bunratty Castle and Folk Park (His Hon. Francis Comerford) Ennis Circuit Court 8 October 2025.

PERSONAL INJURIES €130,000 Awarded for Nervous Shock

Mon, 20 Oct 2025 11:06:58 GMT

The plaintiffs sought to enforce the sale of estate land in Co. Tipperary, which they claimed was concluded by a handshake between the parties. They also claimed a breach of an exclusivity agreement. The defendants denied that any oral agreement had been concluded by a handshake and that there was no document meeting the requirements of s.51 of the Land and Conveyancing Law Reform Act, 2009.

The plaintiffs put considerable reliance on a handshake that took place in the kitchen of plaintiff John Magnier’s home, which the plaintiffs claim was an agreement for the purchase of the defendant’s 750-acre Barne Estate.

The defendants contended that they did not have the authority to agree to a sale as the land was held in a trust, and the trustees' consent was required for any sale. They also referred to correspondence between the parties that carried the ‘ subject to contract’ notations and that an exclusivity agreement was subsequently executed which itself described the stage as ‘ pre-contract.’

The presiding High Court judge, Mr Justice Barrett accepted that any handshake agreement was expressly qualified by the need for trustee consent, a caveat communicated on the night, and which was confirmed by actions taken the following day to obtain approval.

An Coimusiun Pleanala had ruled that the change of use from publicly accessible open space to private use is a development and cannot be considered exempt. That would mean Mr. Howell would have to apply for planning permission.

The judge referred to the lack of supporting documentary evidence to support the plaintiffs’ case. He observed that there was no evidence of even an “outline” option agreement having been struck and that the idea of such an option existing alongside a concluded land sale was equally unconvincing, but rather “ the continued discussion of an option pathway is characteristic of ongoing negotiation, not of contractual closure”.

In this regard, the court held that the option agreement lacked certainty as to material terms such as the price and mechanism for exercise, and that the most that could be said was that after the handshake over the land, “ Mr Magnier brought up keeping the company route ‘open’ . There is no evidence this was accepted or that any commercial detail (e.g., price, liabilities, or time frame) was discussed.”

The judge was further satisfied that the none of the parties in attendance from the defendants’ side had authority, ostensible or otherwise, to commit the first defendant vendor and rejected the plaintiff’s argument that express ratification had occurred on part of the principal or through acquiescence.

Further, the judge rejected the contention that what was agreed on 22 August 2023 amounted to a contract subject to a condition precedent, namely trustee approval of the terms reached, finding that position to be untenable as a matter of legal principle, having regard to  O’Connor v Coady  [2004] 3 IR 271, and on the evidence. 

The judge also found  inter alia  that the notion of a concluded contract being in place was inconsistent with the later execution of the exclusivity agreement. That where no oral agreement for the sale of land had been formed, that the requirement under s.51 of the 2009 Act for a note or memorandum in relation to the sale of land was not merely unmet, but rather it was not engaged.

In conclusion Mr Justice Barrett observed “ shifting sands ” in respect of the plaintiffs’ accounts of the events central to the case, highlighting that those accounts had altered materially since the inception of the proceedings, and that the changes were fundamental, unexplained and called into question the reliability of the accounts. 

In that regard, the judge explained: “ The credibility difficulties here arise not from subjective impressions but from the stark divergence between the plaintiffs’ evolving narrative and the fixed points of the contemporaneous documentary record .”

Accordingly, the High Court dismissed the plaintiffs’ claim.

Wachman, Magnier and Magnier v Barne Estate Limited & Ors  [2025] IEHC 491

PROPERTY Purchasing an Apartment – What is Involved?

Mon, 20 Oct 2025 10:55:51 GMT

Buying an apartment is different from buying a house, so it is very wise to engage the services of a solicitor. Unlike a house, an apartment usually involves leases, a management company, service charges and other aspects that are not involved in a house purchase where you buy the house outright and own the freehold.

Different Title to Apartment

Freehold: Here, the building is fully owned. There can still be management charges for the upkeep of the grounds and common areas.

Leasehold: Under a lease, the purchaser owns the apartment for a defined number of years usually 999 years actually and is tied into a number of conditions or covenants as to the use of the property and payment of service charge etc.

Title Registration

Your solicitor will advise on this as to whether the apartment property is registered in the Land Registry or the Registry of Deeds.

Covenants – What are These?

The lease terms need careful reading from the outset and before one gets too attached to a particular apartment. A covenant is a clause that provides obligations on both the lessor and the tenant. If the landlord sells the property on, the obligations remain, and likewise for the tenant. Note, in some cases, there might be a clause forbidding the keeping of pets and other similar restrictions.

Service Charges

The management company will seek annual or periodical service charges for maintaining the common areas, insurance, lighting, and lifts if there are any. There should also be a ‘Sinking Fund’ which is a provision for long-term repairs like roof damage or wear & tear.

The Conveyancing Process

This is the procedure your solicitor will conduct to ensure the apartment is legally yours, that all the planning and statutory requirements have been met, and that you are aware of the obligations that come with the lease purchase.

Your solicitor will conduct a number of searches to fully confirm the title to the apartment, which include:

Title search – this is to ensure that the seller has a clean title with no mortgages or charges on it on date of closing.
Compliance with building and planning regulations
Compliance with local authority zoning
A search to ensure there are no rights of way, easements, or any kind of restrictions on the property

Draft Contract and Pre Contract Enquiries

Before a draft contract is prepared, your solicitor will enquire about common areas, any outstanding lawsuits concerning the property, fire safety certification, and any matter that might create issues in the future.

A contract is then prepared by the seller’s solicitor, which your solicitor will review, and any clauses that need clarification will be discussed before concluding a sale.

Contract & Exchange

When your find an apartment you wish to purchase, you can make an offer to the sales agent or negotiate a price. Once accepted, you will pay a booking deposit, which will take the property off the market. This deposit will, in most cases, be refundable until the contracts are fully signed off.

After your solicitor has reviewed the contract and advises you that the contract is correct and ready to be signed, you then either pull out or proceed to purchase. Once the contract is signed, by both parties, you are committed to the sale. If a deposit is required and you later withdraw following signed contracts, you will more than likely forfeit the deposit.

Completion

On the completion date, the balance of the purchase price is paid, and the legal ownership passes fully to the purchaser.

Stamp Duty & Registration

As stamp duty is nearly always applicable, this must be paid by the purchaser within 30 days after completion. The rate is 1% for most homes and apartments.

The apartment must then be registered (in the Land Registry or Registry of Deeds) which your solicitor will look after and lodge the deeds with your bank.

PERSONAL INJURIES Bicycle Claims

Fri, 03 Oct 2025 06:05:44 GMT

Awards for bicycle accident claims in Ireland vary significantly depending on the severity of the injuries and the circumstances of the accident, with past cases seeing awards from €30,000 for injuries from a car door opening into the cyclist to €87,000 in another case involving being hit by a van at traffic lights. Compensation covers personal injuries and losses, and the  Motor Insurer's Bureau of Ireland  (MIBI) may pay awards in cases of uninsured drivers or hit-and-run incidents.

Steps to be taken if involved in a bicycle accident

Take pictures of the crash scene
Record road signs and road markings
Record the time of day/night, weather & light conditions
Report the accident to the Gardai
Seek medical attention and keep a record of medication
Speak to a solicitor

(where the cyclist is incapacitated and cannot do some of the above, seek to do it asap).

Time for Taking a Legal Case

There is a two-year limit under the Statute of Limitations for personal injury cases. The statute runs from the date of the accident or from the date you became aware of injuries arising from the accident.

In accidents where a child is the injured party, the case can be taken by their parent or guardian or when the child turns 18, they can take the case. However, it might be better to sue by the parent or guardian depending on the age of the child at the time of the accident and the time gap to the child reaching 18.

Damages for Injuries

The amount that can be rewarded on successful claims will vary according to the serious nature of the injury and whether there will be ongoing medical issues.

Damages are considered under three categories.

General Damages :

These are damages awarded for pain and suffering that were caused by the accident.

Special Damages

These out-of-pocket losses like medication, travel cost to hospital, medical and rehab costs, future earnings. It is important to keep all receipts.

Material damages

This relates to damage/cost of repair to the bicycle.

Each case is decided on its own facts, and damages can vary considerably, for instance:

€48,000 to a cyclist who was struck by a car, causing injury to his left knee.
€65,000 to a cyclist who was knocked off his bike by a bus. The award was originally €124,000 but was reduced on appeal.
€9,127 for a cyclist who hit a newly repaired speed ramp. This award was originally €27,500 but reduced on appeal.

If you think you may have a claim, discuss it first with your solicitor. Choosing the correct jurisdiction is very important. In the case where €9,127 was awarded, the costs were in the District Court range, yet the case was taken in the High Court. Here, the costs awarded would have left the plaintiff out of pocket.

CONVEYANCING Handshake Agreement Fails

Fri, 03 Oct 2025 05:56:44 GMT

Accordingly, the High Court dismissed the plaintiffs’ claim.

Wachman, Magnier and Magnier v Barne Estate Limited & Ors  [2025] IEHC 491

TRESPASS Use of Common Green Area

Tue, 16 Sep 2025 07:14:29 GMT

Use of Common Green Area

The residents of a housing estate in Clondalkin, Dublin had for many years used a green area for recreational purposes.

The green area was adjacent to a house whose owner claimed that the green area was part of his property. The green area was known in the neighborhood as ‘the little green.’

The owner of the adjacent house, Keith Howell, objected when the defendant, Patrick McElwee and five people gathered on the green area and sat on deckchairs. Howell, called the gardai as he felt ‘ in fear of what might happen.’   Mr. Howell also claimed that four days previously, he had received a bullet in the post.

The area in question had been at the centre of a planning dispute in recent years. Mr. Howell had claimed that the green area is part of his property. However, the residents of the estate claim that the ‘little green’ had been used by everyone since the estate was built in the 1960’s.

On the 7th of August 2023 Mr. Elwee and five other people gathered on the green area and sat on deckchairs. Mr. Howell became aware of this with his security camera. As he was in fear of what would happen, he rang the Gardai. Mr. Howell claimed to the court that he was the registered owner of the land although he provided no proof of his ownership. When the gardai arrived, they enquired was he OK and they then spoke with the people on the green area.

A garda gave evidence of the incident and said that he believed that the green area was owned by Mr. Howell and that he was in fear of the people on it. The garda ordered the six people off the area but they refused. He cautioned them if they continued to refuse, they would be placed under arrest. The garda identified Mr. McElwee as the ringleader and arrested him. He was taken to Clondalkin Garda Station, and a file was prepared for the Director of Public Prosecutions.

Counsel for Mr. McElwee submitted to the court that the case be struck out on the grounds that sitting in a deckchair would not be a source of fear to anybody.

Judge Hayden said while there was history between the parties that she could only deal with evidence before her. She stated that Mr. Howell had produced no evidence to prove that he did own the land in dispute and based on that and other evidence before the court, she dismissed the case of trespass against the defendant, Mr. McElwee.

Howell v McElwee  Dublin District Court (Her Hon Catherine Hayden) 31 July 2025.

LANDLORD & TENANT Students' Eviction Disallowed Despite Damage Done by Friend

Tue, 16 Sep 2025 07:09:21 GMT

Students' Eviction Disallowed Despite Damage Done by Friend

Two students (the complainants) who lived on UCC’s campus received notices to vacate following complaints that they were responsible for damage to the door of an adjacent apartment. Their tenancy agreement said:

‘ Anti-social behavior will not be tolerated and any student resident acting in this manner will be fined and may face eviction.’

On October 27th last, an incident was reported to the security guard at 10:30 pm. The guard had received a complaint from two girls in an adjacent apartment that a party was taking place in the complainants’ apartment and damage had been done to their apartment’s door. The girls said that they did not feel safe as their door was broken. Alternate accommodation was provided for them.

The following night, another complaint was made about another party in the same apartment occupied by the two student complainants.

On October 29th, the assistant services manager arranged a meeting with the two student complainants. The students volunteered that a friend of theirs admitted that he had caused the damage while drunk and was willing to pay the €1,112 cost of repairs. However, at the end of the meeting, the students were given a termination notice. The reason given for the termination was that they breached the tenancy license regarding anti-social conduct. The students’ fobs were deactivated but reactivated once the dispute was lodged with the RTB.

Complainant, Mr. Walsh, said that they were not aware that the adjacent door had been damaged until they learned it from a friend. He thought they would get a warning and be responsible for the cost of the damage, they were not expecting to be evicted. Their solicitor submitted that there had been ‘no due process followed.’  

The Tribunal found that the complainants/ tenants did not permit the behavior of the visitor that caused the damage. It ruled that if the visitor had been persistently harassing the neighbors, it could have followed that the tenants ‘allowed’ the anti-social behavior. But on the evidence presented, the tenants could not reasonably have anticipated the once off damage caused by a visitor.

It ruled that a warning notice would have been sufficient and that the notices of termination were invalid.

Boyle and Walsh v University College Cork  Residential Tenancies Board May 2025.

PROBATE How Long is the Process?

Tue, 16 Sep 2025 06:59:21 GMT

How Long is the Process?

Many probate applications are straightforward and incur little or no delay in processing. But where the deceased's estate is large with perhaps many investments or beneficiaries in other countries, the process will take much longer. In uncomplicated cases, a straightforward application could be six months, but safer to allow up to 12 months. The more complicated applications could take several years. Sometimes a backlog of applications in the Probate Office can contribute to the delays.

What is Involved?

Before your solicitor can submit an application for probate to the Probate Office, there is a whole process that must take place.

The size of the estate will be a factor. An estate with numerous assets, some of which may be outside Ireland, will take more time to gather the necessary information on which to keep or sell the assets in accordance with the wishes of the deceased. Any disputes over the assets will add time too.

Tax issues may be a factor, especially in large estates with assets that may require expert valuation.

The executors will work with the solicitor in dealing with issues and identifying assets. The fewer the beneficiaries, the easier it is, but the contrary is the case with many beneficiaries, and especially where there are some disgruntled beneficiaries with various issues concerning the Will or its execution.

Where a beneficiary (or a group of them) dispute the Will, this can lead to considerable delays and could result in their issues being resolved in court. This is where a challenge is made to a Will.

Executors are supposed to assist in gathering information and assisting the solicitor, but where an executor is slow or inefficient in dealing with issues, this adds time to the process.

Assuming there are no major issues to be resolved, the process can be as follows:

Starting the work : This involves checking the Will to ensure it has been properly executed and there are no problems with it. Listing the assets and liabilities and identifying who the beneficiaries are and obtaining their addresses. In straightforward Wills where there are no complications, this could be done in a matter of months. When the solicitor is happy that everything is in order, he/she can submit the application for a Grant of Probate. The Grant of Probate applies to where there is a Will and in cases where there is no Will they apply for a Grant of Administration Intestate.

  Valuation of Assets:  After the Grant of Probate has been given, the assets of the deceased are valued. From the proceeds of the sales (and from cash the deceased had) debts are paid which can include the solicitor’s fees, and then the assets (can be shares, property or cash) are distributed to the beneficiaries in accordance with the Will after any Inheritance tax is paid to the Revenue.

Closure:  After distributing all the assets in accordance with the Will, paying off liabilities and concluding any issues, the estate can be closed.

While the time taken for the Grant of Probate can vary according to the details of the Will, an average time could be 12 – 18 months as a general rule.

Engaging a Solicitor

Probate work is an expertise of solicitors, and while an executor can do the work for processing a Will, it is better to engage a solicitor to avoid time delays and most especially if any issues arise. Solicitors are well used to dealing with Wills, whereas an executor would be new to issues arising, and this could add a considerable delay to the process.

MEDICAL NEGLIGENCE Child Given Wrong Covid Vaccine with a Used Needle

Thu, 21 Aug 2025 09:53:12 GMT

Counsel for the plaintiff told the court that the plaintiff, who was 13 at the time, attended the vaccination centre in Citywest Hotel, Saggart, Co. Dublin

in August 2021, for the COVID vaccination, and said the nurse administered the wrong vaccination and used a needle that had been used on three other

people.

In evidence, the child’s father stated to the court in written testimony that the second vaccination had been administered without discussion and consent of

either himself or his daughter. He further said that that the nurse who administered the vaccination, had denied that the first syringe had been used previously. On further enquiry with the head nurse, it transpired that the syringe had in fact been used on another person.

Following this incident, the child had to undergo blood tests and be vaccinated for Hepatitis B. it was pointed out to the court that at least one of the three persons who had been given the vaccination with the same syringe refused to undergo blood tests. As a result of this the plaintiff had to undergo a post-exposure antiretroviral therapy course over a month. The result of this brought on nausea and generally feeling unwell. She had to undergo a number of other tests as a result of the actions of the HSE in administering the vaccine in this fashion.

The court was told that a year after the incident, the plaintiff developed an abscess that ruptured during her school sports day, which added to the stress she already suffered. This was treated with antibiotics.

Counsel for the plaintiff informed the court that the defendant had initially offered €15,500 in settlement but this had been rejected earlier by another judge. This was then increased to €16,500, then €20,000 with expenses and legal costs, which was accepted.

The barrister for the HSE read out an apology on behalf of the HSE.

Ella Mulhern (Suing through her Father) v The HSE  Circuit Civil Court (Ms. Justice Fiona O’Sullivan) 23 June 2025.

DEFAMATION Newspaper Relying on Qualified Privilege Fails

Thu, 21 Aug 2025 09:49:04 GMT

A newspaper that incorrectly published the name of the respondent in the ‘tax defaulters list’ appealed the decision of the High Court awarding the respondent damages. The respondent had no connection with the companies named and had been identified in the article by mistake. The respondent sued for defamation. The appellant, in its defence, relied on section 18 of the  Defa mation Act 2009, claiming qualified privilege, in which it was acting in good faith by publishing the article as part of its duty to report on matters of public interest.

The High Court found no basis for the defence of qualified privilege in circumstances where the communication of inaccurate information was outside its scope, as the publisher had no duty or interest in communicating and the public had no interest in receiving inaccurate information.

The jury awarded the respondent €75,000 in damages, leading the High Court to award Circuit Court costs only to the respondent. The appellant appealed to the Court of Appeal on the findings made in respect of qualified privilege, with the respondent cross-appealing the award of costs.

On appeal, the Court of Appeal dismissed the appellant’s appeal and allowed the respondent’s cross-appeal, finding  inter alia  that the defence of qualified privilege required a mutuality of duty or interest which, in practice, confined the defence to situations involving individuals (or groups of individuals) rather than to the public at large and that it would be extraordinary to allow the appellant to rely upon the defence where its article was not fair and accurate. Following this the appellant was granted leave to appeal to the Supreme Court on the issues of the nature and scope of qualified privilege and its relationship with section 18(3) and the defence of public interest reporting under section 26 of the 2009 Act. Leave to appeal was also granted in respect of the costs issue.

The Supreme Court observed that the defence of qualified privilege did not generally apply to publication to the world at large because of the absence of the necessary reciprocity, the judge further considered that if the only safeguard for a defamed claimant is to discharge the “heavy onus” of establishing malice, and if a finding of malice is excluded by an honest belief in the truth of the defamatory statement, however unreasonable that belief may be and regardless of whether the belief was the product of the publisher’s own carelessness, “then in the context of media publication, malice is an illusory and inadequate ‘safety switch’”.

The court also reasoned that privilege is intended to foster free communication in defined circumstances and/or for defined purposes by protecting the publisher from potential liability with the provision of a defence that does not require the publisher to take on the burden of establishing the truth of what has been said, but that the protection of false speech is “an incidental effect of that protection, not its principal objective or primary rationale”.

Noting that the principal exception to the general rule that qualified privilege does not apply to publication to the world at large, being the fair and accurate reporting of certain proceedings and reports, has now been largely subsumed into s.18(3) of the 2009 Act, Mr Justice Collins opined: “None of these specific and relatively small-bore exceptions are capable of being stretched to accommodate a generally applicable media privilege.”

The court disagreed with the proposition that the defence of qualified privilege at common law could extend to media publication/publication to the world at large on the basis of a recognition of a duty to publish public interest material in the interests of the public as a whole, and that the jurisprudence provided no support for that suggestion save as regards the fair and accurate reporting of particular proceedings and reports.

Accordingly, the court found that no common law defence of qualified privilege was available to the appellant and moved to consider whether the appellant had a defence under section 18(2). 

The court considered the appellant’s argument that section 18(2) radically altered the law of qualified privilege by extending its protection to a broad category of media and non-media publication subject only to the absence of malice.  The court considered that this would provide a defence for inaccurate reporting in circumstances where the Oireachtas has, in section 18(3), legislated to provide a defence strictly conditioned upon the fairness and accuracy of the reporting and requiring consideration of the public interest and benefit.

The court found that such an interpretation of section 18(2) would “effectively swallow up section 26 entirely”, it would also “negate the judgment made by the Oireachtas in deciding on the parameters of the section 26 defence and frustrate its purpose in enacting that defence”.

The Supreme Court found that the jury was entitled to take the view that the respondent had been defamed.

The court dismissed the appeal of the newspaper appellant and the respondent’s appeal on costs.

William Bird (respondent) v Iconic Newspapers Limited (appellant)  [2025] IESC 30.

PERSONAL INJURIES Slip and Trip Claim Dismissed

Thu, 21 Aug 2025 09:45:28 GMT

A customer of Supermac’s fast-food restaurant took a personal injury case against the company as a result of an incident. CCTV showed that having purchased a packet of crisps, she could be seen looking at her mobile phone and turning to leave. As she made her way to the exit, she tripped over a vacuum cleaner that was on the floor.

The plaintiff admitted in evidence that she had gotten a message on her phone, got distracted and then tripped over the vacuum cleaner and fell. While assisted by her husband and the shop manager, the footage showed that she was able to stand up within 19 seconds unaided.

The Maskey Report had found that 240 children received ‘risky’ care from South Kerry CAMHS between July 2016 and April 2021, with

proof of significant harm to 46 of them.

She blamed the vacuum cleaner for her accident and was seen placing her hand on her lower back. Later she attended the A & E, she was three months pregnant, but a scan showed all was well with the pregnancy. She also went to her GP following the accident.

Under cross examination, the plaintiff conceded that the vacuum cleaner was there when she made her way to the till and she had no problem with it then.

The judge commented that while the location of the vacuum cleaner was negligent, the question was, did it cause the plaintiff to fall. He said that not every negligent act results in liability. The court must ask, the judge said, whether the plaintiff was taking due care at the time when the accident occurred and he believed that she was not. On this basis, the judge found that the plaintiff was ‘wholly distracted’ by her phone when she tripped over the hoover and dismissed her claim.

Darcy v Supermac’s Restaurants  Galway Circuit Court (His Hon. Judge O’Callahan) 16 July 2025.

PROTECTED DISCLOSURES HSE Settles Case with Doctor

Thu, 21 Aug 2025 09:41:52 GMT

A hospital consultant claimed to have been penalized and sidelined following her making protected disclosures. As a result of these actions by the HSE, the consultant child psychiatrist resigned her post and left Ireland.

The doctor’s whistleblowing was subsequently vindicated by the Maskey Report, a major external review published in 2022.

The Maskey Report had found that 240 children received ‘risky’ care from South Kerry CAMHS between July 2016 and April 2021, with

proof of significant harm to 46 of them.

The scandal involved misdiagnosis and misprescribing medication to children. The Report showed sub-standard care, with unreliable diagnoses, inappropriate prescriptions, poor monitoring of treatment, and potential adverse effects.

Much of the actions related to a junior doctor but significant failings in supervision and governance were also identified.

The doctor made a protected disclosure and because of the manner in which she was subsequently treated, she claimed racial discrimination. She issued proceedings in August 2023 seeking damages for breach of statutory duty, breach of contract, breach of the Protected Disclosures Act, failure to provide a safe place of work and the infliction of emotional suffering.

The HSE settled the case before the case went for trial and agreed to pay the plaintiff doctor €75,000 damages.

Dr. Maya Sharma v HSE High Court July 2025

LANDLORD & TENANT Executor of Will can Issue Notice of Termination

Wed, 30 Jul 2025 09:36:50 GMT

A widow and executor who was the sole beneficiary of her husband’s estate, served a notice of termination on the tenant of her late husband. She wanted the apartment back for her granddaughter. The rental property was part of her deceased husband’s estate and prior to his death, the rent was paid into an account in the joint names of her and the deceased. The rental property was in the sole name of the deceased.

The tenant applied to the Residential Tenancies Board under section 78 of the Residential Tenancies Act 2004, objecting to the notice of termination. An adjudicator determined that the notice of termination was valid. The tenant appealed contesting the status and capacity of the notice party (wife) to terminate a tenancy for her own or family use. Further, it was claimed that probate had not been issued on the date the termination notice was served. The tenant argued that one of the main roles of an executor is to preserve assets for the benefit of any potential creditors and that while an executor may be entitled to collect rent, until she was able to “assent” the property to herself she could not put a relative into the property.

On appeal, the tribunal declined the tenant's case finding there was no error of law and that the status of the landlord was laid out in the 2004 Act.

The tenant appealed their decision on a point of law to the High Court. The tenant claimed that the Tribunal erred in law by wrongly holding that an executor who had not taken an assent of the property was entitled to form an intention to move in a family member for an indefinite period, and by failing to deal with his submission that an executor who had not taken an assent of the property was not in a position to form an intention to move in a family member for an indefinite period.

Having regard to the Tribunal’s decision, the court set out that the tribunal had properly satisfied itself on the balance of probabilities that the notice party required the dwelling for the use of her granddaughter, and had concluded that her requirement for vacant possession of the dwelling was genuine and lawful and that there had been compliance with statutory notice periods applicable in the case of a tenancy covered by Part 4 of the 2004 Act, being one of greater than six months’ duration.

The judge noted that the tenant neither queried the Tribunal’s decision on the genuineness of the notice party’s intention to make the property available for occupation by her granddaughter, nor her compliance with statutory notice period.

The judge was not convinced that the absence of an assent was determinative of who the “landlord” was for the purposes of the 2004 Act.

The judge was satisfied that the notice party had dealt with the tenant not as agent for the deceased but as landlord in her own right, and that the only relevant question for the Tribunal was who was entitled to receive the rent, and that the evidence had established that the notice party was so entitled.

The judge emphasised: “The fact that a tenancy is terminated to allow for occupation of a property by a family member of the landlord is not necessarily in any way inconsistent with a duty to maintain the estate for the benefit of creditors, if any, pending full administration of the estate.”

The judge was satisfied that the Tribunal had dealt with the questions posed within its jurisdiction of the 2004 Act and that it was not its function to determine questions relating to the duties of personal representatives under the Succession Act 1965 or title to property.

In its conclusion the court that the Tribunal had not erred in law and declined the appeal.

Ó Laoire v The Residential Tenancies Board [2025] IEHC 384.

PERSONAL INJURIES Employers Not Necessarily at Fault Where an Everyday Accident Occurs in the Workplace

Wed, 30 Jul 2025 09:29:41 GMT

A stable employee working in a racehorse trainer’s premises injured his back while emptying a wheelbarrow of horse dung into a dung heap.

He claimed that the injury occurred while he was emptying a wheelbarrow on an upward incline of soiled hay while at work at the employer’s stables. 

The plaintiff/appellant had been tasked with filling 10–15 wheelbarrows of soiled hay from the horseboxes and then emptying those wheelbarrows into a dung heap each day. He was asked to throw loose soiled hay from the floor of the dung heap, with a fork or shovel, onto the higher mounds of soiled hay to keep the floor of the dung heap clean, enabling the wheelbarrow to be tipped out on a flat surface.

He claimed that he was entitled to damages from the respondent when he suffered a back spasm while emptying the wheelbarrow. His claim was based on an unsafe system in the workplace.

Having lost in the Circuit Court, he appealed the decision to the High Court.

The appeal Judge, Mr. Justice Twomey, considered case law where it was noted that the courts should approach personal injury claims by applying “common sense and some degree of scepticism’ to each case, and where in ordinary everyday situations, it is not necessary to have expert witnesses involved. Instead, common sense should prevail. And such was the case here in determining how to operate a wheelbarrow.

In the case of Nemeth v Topaz Energy Group Limited [2021] IECA 252, the judge cited that an employer is not an insurer of an employee from injury resulting from the employee doing an everyday task, simply because he or she happened to do that task at work.

In that case, the court said:

“An unfortunate everyday mishap does not become someone’s fault because it happens on the premises of an employer with insurance (or on the premises of a person with means). The test remains has the employer failed to exercise reasonable care?”

The judge in the appeal case noted that the plaintiff/appellant had not pleaded in the original pleadings that the injury occurred from the wheel-barrow accident and that, based on his subsequent conversation with his doctor, there may have been another accident, so it was not entirely clear that the accident which was the subject matter of his case, actually occurred at the horse trainer’s stables. 

The court was of the view that the plaintiff/appellant had plenty of experience of operating wheelbarrows and ought to have known how to operate it in a safe manner.

The court was satisfied that the provisions of the Civil Liability and Courts Act 2004, were not reached, resulting in his employer having no idea that the key issue in the trial would be that the system of work alleged to be unsafe involved the appellant emptying a wheelbarrow in an unorthodox fashion.

Accordingly, the High Court dismissed the appellant’s claim and indicated its view that the costs of the proceedings in the High Court and Circuit Court should be awarded against the appellant.

Lawless v Keatley [2025] IEHC 364.

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

Tue, 22 Jul 2025 08:56:37 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.

DISCRIMINATION School Discriminated Student for Wearing an Earring

Tue, 22 Jul 2025 08:53:00 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

PROBATE How to Dispute a Will

Tue, 08 Jul 2025 06:21:08 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 investigate 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.

MEDICAL NEGLIGENCE Late Diagnosis

Tue, 08 Jul 2025 06:17:33 GMT

A case came before the High Court where a young Spanish national was admitted to hospital when he became unwell in Ireland. . He spent 42 days in St. James’s Hospital (SJH) without his condition being diagnosed, while within four days in a Spanish hospital, it was identified and treated.

The plaintiff submitted that he had two features that should have alerted the staff in SJH that treated him on admission: firstly, the epidemiological association between HIV, VL and Spain, combined with the fact that the plaintiff was HIV positive and was from Spain, and secondly, the plaintiff’s “massive splenomegaly” or enlarged spleen.

While in SJH, the plaintiff was diagnosed with hemophagocytic lympho-histiocytosis (HLH) triggered by herpes virus type 8 (HHV-8) in the context of HIV.

The plaintiff alleged that none of the consultants who managed, investigated, and cared for the plaintiff during his admission considered the possibility of visceral leishmaniasis (VL) during his ensuing 42-day admission to SJH, a condition which is fatal if left untreated in 95 per cent of cases.

After 42 days in SJH, he was transferred to a Spanish hospital, where he was correctly diagnosed with his condition in four days.

He sued SJH for damages for their failure to diagnose visceral leishmaniasis (VL).

The issue before the High Court was to decide whether SJH should have diagnosed VL within four days of the plaintiff’s admission to the hospital’s care, and if so

what would have followed in terms of treatment and recovery.

Ms Justice Egan of the High Court considered the authorities, namely, Dunne v. National Maternity Hospital [1989] IR 91 and Morrissey v. HSE [2020] IESC 6 requiring the court to assess ‘whether no reasonable professional of the type concerned could have carried out their task in the manner which occurred in the case in question. That overall test requires a court to determine what standard a reasonable professional would apply.”

The court then examined what proper professional standard should have been applied, and noted “No clinician can be expected to be in touch with every single piece of literature and every publication or Guideline. Rather, they would be expected to follow those most relevant to their own practice.”

The judge was satisfied that although clinicians treating HIV patients may know of potential associations with dozens of opportunistic infections, the standard approach requires the application of discrimination to the task of diagnosis and the keeping of diagnoses under review, “they are not compelled, at least at an early stage of management, to explore each and every potentially viable diagnosis that might conceivably apply.”

The judge was not satisfied that SJH had looked beyond a reasonable diagnosis of HLH to interpret the plaintiff’s enlarged spleen as strongly indicative of VL.

On the balance of the evidence before the court of the early treatment of the plaintiff while in SJH’s care, that in the period between 10 March 2014 to 14 March 2014, a considerable suspicion of VL ought to have arisen leading to the commencement of empirical AmBisome, which was not commenced until over three weeks later on 4 April 2014, and that negligence arose in this regard.

Therefore, the High Court found as to causation, that if the plaintiff had been commenced on AmBisome during the week of 10 March 2014, his improvement within a week and substantial recovery within two weeks could reasonably have been anticipated, sparing him from three weeks of hospital admission with painful and debilitating symptoms and “anxiety, distress and worry as to his health”.

Causation having been established and the expected standard of care being breached, the High Court awarded the plaintiff €26,000 in general damages. No claim had been made for future pain and suffering.

AMS v Birthistle [2025] IEHC 331.

COMMERCIAL LAW Norwich Pharmacal Order

Thu, 19 Jun 2025 09:42:18 GMT

A case came before the High Court for a Norwich Pharmacal Order. This order is defined as:

‘A Norwich Pharmacal Order (NPO) in Ireland is a legal order granted by the court to compel a third party to disclose information that can help identify a wrongdoer. It's an exception to the general rule that discovery (obtaining information) is only allowed after proceedings are closed. Essentially, it's a way to uncover information from someone who might be unknowingly involved in wrongful actions by others’.

The case before the court was to do with Internet fraud, where the applicant was seeking an order for a bank to disclose the photo ID of a person who may have information in regard to the alleged fraud.

The applicant was a French citizen residing in France and who responded to an ad in social media in 2021 for an investment opportunity. Following engagement with a ‘Mr Becker’ who purported to be a representative of Skandia Bank in Berlin, the applicant invested €280,000 in what he believed were investment vehicles to acquire care home facilities in Spain. The applicant proceeded to make money transfers to various bank accounts in Spain. In total the applicant invested €1.5 million.

Later that year, the plaintiff was contacted by a ‘Mr Lemercier’, purportedly a representative of Santander Bank in Paris, who advised that the investment opportunity availed of by the plaintiff was fraudulent and that he should withdraw the investments. The applicant realised that he was a victim of fraud and tried to contact the ‘Mr. Lemercier’ at the bank, but he was informed that no person of that name worked for the bank.

Despite lodging criminal complaints with criminal authorities in a number of EU countries, the identities of both Mr Becker and Mr Lemercier were unknown.

The applicant sought orders requiring the defendant company to provide information to assist him in identifying unknown individuals, including inter alia the names, addresses, dates of birth, email addresses and telephone numbers of the persons who opened the Irish bank accounts and any beneficiaries of those accounts, details of all transactions and payments made into or out of those accounts, and copies of the documentation used to open the accounts including identity verification documentation.

The defendant company consented to all reliefs except for the provision of ID documentation.

So, the issue before the court concerned compelling the defendant to release the photo ID of the person or persons who opened the bank accounts whereupon the applicant hoped he could trace the money stolen.

The judge considered the case law and the principles relating to Norwich Pharmacal orders (NPOs) and Bankers Trust orders. He was satisfied the case fell under the NPO equitable relief and in Ireland Megaleasing UK Ltd. v Barrett [1993] ILRM 497 approved the original case establishing the UK case of NPO of Norwich Pharmacal Co. v Commissioners of Customs and Excise [1974] AC 133. Under such a case an NPO compels a defendant to provide specified information that would assist to identify a third party who has committed an actionable wrong against a plaintiff and places a plaintiff in a position to identify and seek redress against a previously unknown wrongdoer.

Considering the issues in this case, the judge observed ‘ Cybercrime is a growing threat to the worldwide economy, but particularly, the economies of the western world. There is little doubt that the plaintiff has been the victim of a concerted cybercrime involving multiple subterfuges.” And ‘In this case, a picture or photo of the individual who opened the account, will be of far greater assistance in leading to the location or preservation of the plaintiff’s money than simply, a name, address or e-mail with contact details.”

The defendant submitted that it was not necessary to bring a claim for the ID documentation but the judge disagreed stating: “While I appreciate there is no Irish authority to support the proposition, it seems to me to be an extension of the equitable jurisdiction and to coin a phrase often used in equitable cases, it seems to be ‘just and convenient’.

Decision

The judge found that the refusal of the application would significantly disfavour the applicant and that the applicant’s interests in obtaining the order were far greater than any detriment arising to the defendant in relation to confidentiality and the European Convention on Human Rights . The court considered that it was difficult to see what detriment would arise in circumstances where the applicant is obliged to give appropriate undertakings.

The judge commented that the delay in bringing the application was not fatal and deemed the provision of photographic-type documentation appropriate in the circumstances, and thus granted the orders sought.

Jean Pierre Boulbet v Sumup Limited [2025] IEHC 285 .

PERSONAL INJURIES Fall Outside Lift in Hotel, Whether the Plaintiff Contributed to the Accident

Thu, 19 Jun 2025 09:38:35 GMT

The plaintiff in this case emerged from a hotel lift when she slipped and injured her elbow and foot, causing hospitalization. The plaintiff was with her husband and others when the accident happened. Her husband noticed a wet surface and the floor area where she fell and presumed this was the cause of his wife to fall.

In describing her accident, the plaintiff told the court that she ‘went to step onto the carpet and [she] went down on to the ground.’ She was cross-examined by counsel for the defendant as to the wording in the personal injuries’ summons and the initial letter from her solicitor to the defendant. Here was there a difference in the description of her fall.

The personal injury summons described it as:

‘At approximately 5:30pm the plaintiff… whilst exiting a lift in the company of her husband and other guests… was caused to slip and fall by reason of the said floor being wet and/or slippy due to the presence of a deleterious substance thereon.”

While the original solicitor’s letter said:

‘At approximately 5:30p.m. when exiting the elevator… she had walked with others a number of steps from the elevator, slipped on the floor and fell to the ground.’

The judge was satisfied with the plaintiff’s evidence in the circumstances of the fall while acknowledging she did not know the cause of it.

CCTV footage was produced in evidence and examined in great detail. But its location could not give an indication as to the condition of the floor.

Witnesses for the hotel gave evidence of the hotel’s procedure for maintaining areas where guests use. A manager gave evidence for the defendant as she went to the plaintiff on it being reported and examined the floor. She did not see any wet area around the position of where the plaintiff was but did not bend down to feel the ground.

Both sides had engineers giving evidence based on CCTV, but this did not assist the court in its net point in determining liability.

The defendant queried the plaintiff’s high heels and put it to her that these heels might have contributed to her slipping, but the court was satisfied with her answer that she frequently wore high heels, and these did not cause her to slip.

The defendant put it to the court that nobody else had issues with the floor; that on checking out of the hotel, the plaintiff did not complain about the fall and the absence of mentioning the wet floor in her solicitor’s original letter not in the ambulance record of the incident.

However, on the balance of the evidence, the court was persuaded by the plaintiff’s evidence and found the hotel was liable for the accident.

Having decided on liability, the court addressed the amount of damages and awarded a total of €72,000, for pain and suffering to date.

Kirby v Hotel Kilkenny Ltd High Court (O’Connor J) 30 April 2025; [IEHC] 305.

PERSONAL INJURIES  Defective Clothing Causing Injury

Mon, 09 Jun 2025 16:56:40 GMT

Following her birth, a pair of pants was bought for the infant plaintiff in Brown Thomas’s store in Dublin. On a family holiday about 10 weeks later, she was dressed in a combination of pink dress and pants. After a few hours wearing this the baby became very agitated.

Later when the baby was being prepared for bed that evening, her mother noticed red marks on the baby’s outer thighs. After the holiday, her mother brought her baby to her doctor and after examination, the doctor referred her to a consultant plastic and reconstructive surgeon.

Photographs of the baby’s injuries were taken at the time of the injury and later for production to the court. The sequence of photographs showed the marks on the baby took two and a half years to fully clear up.

An expert witness had examined the pants in 2012 and found that the elastic was twice as powerful as he would recommend even for an adult. The plastic surgeon had found residual scarring on the baby’s outer thighs and ‘’secondary to a tight constriction band in the area where an elasticated baby-gro might fit against a baby’s skin.” The surgeon’s report noted the only treatment required for the injuries was massage with Bio oil by the baby’s mother. Three years after the incident the surgeon noted there were no marks and no need for any treatment.

The defendants, Ralph Lauren Ireland Ltd had delivered a full defence but a settlement offer of €17,500 had been made and the President of the Circuit Court, Mr. Justice Raymond Groarke, who was presiding, approved it and awarded the plaintiff costs.

Amelia Duhy (Suing by her Mother, Julie Duhy) v Ralph Lauren Ireland Limited Circuit Court (Mr. Justice Raymond Groarke) 23 February 2016.

COMPANY LAW Shareholders’ Agreement

Fri, 30 May 2025 16:55:25 GMT

A shareholder’s agreement is a useful document to have especially when there are a number of shareholders.

The main purpose of it is to regulate the relationship between shareholders, the company, and potentially the company's management, ensuring that all parties are aware of their roles and how the company will be governed.

In essence the shareholders’ agreement is a contract and like all contracts it creates rights and obligations for shareholders beyond the basic rights in company law or in a company’s constitution.

The parties to a shareholders’ agreement may be all the company’s shareholders or just some of them. But it is useful to have in place for new shareholders.

Careful consideration needs to be given to its clauses. Your solicitor will guide you through these.

Such agreements deal with the issue and sale/transfer of shares, the composition of the board of directors and appointment of new directors, how it deals with minority shareholders and their rights, restrictive covenants and options to resolve disputes. It is open to the directors creating a shareholder’s agreement to include or exclude clauses they want or do not want.

In addition, a company can have more than one shareholder’s agreement in place at the same time but to avoid conflict one agreement is preferable.

Having in place a shareholder’s agreement is a faster way of resolving disputes among shareholders.

Some common issues that can create shareholder issues:

How dividends are to be paid & when paid
In family businesses disputes can easily arise, these can be more personal than to do with the company
Selling shares
Amending the company’s constitution
Appointing new directors

A shareholder’s agreement will cover all the contingencies that can arise in a business. Not all will be relevant to your business so your solicitor will guide you in choosing the clauses best suited to your business.

A shareholder’s agreement can be terminated in a few ways, including by mutual agreement of the shareholders, by a specified event in the agreement, or by the company's dissolution. The agreement should outline the specific circumstances and procedures for termination.

FAMILY LAW Pre-Nuptial Agreements in Irish Law

Thu, 15 May 2025 16:52:17 GMT

A pre-nuptial agreement is an agreement made between two people who intend to marry each other. The agreement can cover a number of issues including the parties’ assets and arrangements in the event of the marriage breaking down regarding the custody and welfare of children they may have and even pets they may acquire.

In Ireland, strangely enough, these agreements are not legally binding. They are then a statement of the parties’ intentions at the time they got married and if they end up in court,

a judge is not bound by the terms of the agreement. However, there is a provision under the Succession Act, 1965 (section 113) where a spouse or civil partner can renounce his or her legal right in a pre-nuptial agreement and this does have legal effect.

Like any important document it is wise to take legal advice on drafting a pre-nuptial agreement. Openness and honesty are required when disclosing what assets the parties may have before they entered the agreement. Holding back the disclosure of money, property, or other assets, defeats its purpose.

Form of the Agreement

While there is no definitive rule, it should be in writing. As it is in fact a contract between two parties, it should be signed by both parties, dated, and ideally witnessed.

There is nothing against updating a pre-nuptial agreement and where the circumstances change of one or indeed both parties, it might be a good idea to update it to cater for the new situation.

Cohabitation Agreements

This has legislative protection under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010 . This permits cohabitants to enter into a cohabitants’ agreement regarding financial matters during their time together. There is a provision in the Act requiring that either the couple obtained independent legal advice or that they obtained legal advice together and waived, in writing, the right to independent legal advice. Here also, the agreement must be in writing, dated and signed by both parties.

INTELECTUAL PROPERTY Trademark – Similar Mark Could Cause Confusion

Thu, 15 May 2025 16:51:20 GMT

ViberStore Group, a small Irish phone recycling retailer and supplier company, sought to register the trademark ViberStore but the application was challenged by Viber, a company owned by Japanese giant Rakuten.

The dispute which came before the Controller of Intellectual Property centred around the name ‘viber’ and whether its usage by the applicant Irish company would cause confusion in the market.

Viber, in opposing the trademark, claimed that the Irish company’s logo was similar to their company’s registered trademarks. It claimed the phone services of the Irish company were similar enough to the services they provided to cause confusion among the public as to whether the two companies were associated. They accused ViberStore of ‘passing off’ and in their submission called on the Controller to reject the Irish company application to register the trademark ‘ViberStore.’ They pressed the point that consumers would likely be confused between the two companies and could think the two companies were associated, which they were not.

Viberstore group rejected the complaints made by the Japanese-owned company. It said that while ten years ago their service had widespread usage that since the arrival of WhatsApp, its market had been taken over. They rejected the argument that there would be confusion among consumers in the two names.

The Controller in his ruling found that ViberStore was trying to take unfair advantage of the Viber trademark, but he found that the Irish company were not "passing off" their services with those their competitor.

In rejecting ViberStore’s application for their trademark, the Controller said: ‘the re is a real likelihood that a consumer, who had used [Viber’s] goods or services or who had an awareness of them, would, when encountering the applicant’s mark, be liable to be confused or be led to believe that the applicant’s mark is associated with those of the opponent’s’. He went on to say that there was a ‘ high level of similarity’ between the two marks and a similarity in respect of the services.

The ViberStore Group Limited (applicant) v Viber Media S.à r.l. (opponent) No. 263638 Controller of Intellectual Property (John Nolan) 10 April 2025.

COMMERCIAL Street Furniture Licence Fees to be Waived

Thu, 15 May 2025 16:49:25 GMT

The Government has announced that a provision under the Planning and Development (Street Furniture Fees) Regulations 2025, will now provide that fees for street furniture used for in-street dining will be waived for the rest of 2025.

This will come as a great relief to hotels, restaurants, public houses, or other establishments where food is sold for consumption on the premises.

Minister James Browne said about this regulation: ‘This is a pro-business and a pro-tourism government, and I want to give small businesses and the hospitality sector every bit of help we can to deal with costs, build their businesses and continue to create employment.

“ That is why I intend to waive the outdoor furniture licence fee for 2025. Saving businesses up to €125 a table, this is a constructive and helpful step to help our local businesses thrive.

“This waiver will require regulations to pass through both Houses of the Oireachtas so I have asked my department to commence this process immediately with the intention that the waiver will be in place in time for summer and the hopefully good weather for outdoor dining.”

Section 254 of the Planning and Development Act, 2000 provides for a street furniture licensing system for prescribed appliances and structures, placed on, above, under or along a public road, including footpaths.

Section 246 of the Act provides that the minister can make regulations providing for prescribed fees to be paid to planning authorities in relation to applications for grants of licences under s.254 of the Act.

The fee for a licence for tables and chairs is currently set at €125 per table per year and this fee is what the minister intends to waive for the remainder of 2025.

The date this provision comes into effect has not yet been set.

DENTAL NEGLIGENCE  Defective Dental Treatment

Wed, 16 Apr 2025 21:32:12 GMT

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PERSONAL INJURY  Pedestrians

Wed, 16 Apr 2025 21:30:58 GMT

Unfortunately, as often seen in the media, pedestrians can be the victims of road traffic accidents in Ireland.

In some instances, the cause of the accident is the pedestrian. In such cases, a court will have to balance and determine on the ‘duty
of care’ of the driver and the pedestrian. If the court finds that the pedestrian caused the accident, then the liability falls on the pedestrian.
This could have dire financial consequences because while the drivers will be insured, the pedestrians, will not.

Circumstances where Pedestrians are at Fault.
Drunkenness/drugs: a person under the influence of alcohol or drugs wandering onto a road causing an accident.
Negligence: Pedestrians who are distracted (e.g., using a mobile phone).
Jaywalking: Busy roads have designated places to cross over, these can be traffic lights, zebra crossings or islands in middle of the road.
These are there to aid pedestrians crossing the road. If a person chooses to cross a road outside of these and they are there, then they
could be held liable for an accident.

A court will carefully examine the evidence and might conclude that both the driver and the pedestrian were at fault and will apportion the liability.

Compensation for Injury
Your solicitor will advise you on what court the case can be taken in.

• District Court - €2,000 in small claims or claims up to €15,000.
• Circuit Court - Claims between €15,000 and €75,000 (€60,000 in personal injury claims)
• High Court - Claims above €75,000 with no upper limit

It is important that you select the correct court. If the case is borderline High Court, it might be better to take the case
in the Circuit Court as it will be heard quicker, and the costs are less. Costs always must be taken into consideration as
there is always a risk that you could lose the case. The costs in the High Court will be much higher than the Circuit Court.

Relevant Facts in Establishing Loss
• How the accident has impacted your life.
• Medical Expenses – GP, hospital, medication, physio.
• Loss of earnings/having to change line of work and receive less income.
• Loss of enjoyment of life (sporting activity)

Filing Your Claim
In Ireland this is governed by statute but in general the case must be filed within two years from the date
of the accident or the date you became aware of the injury. There are exceptions to the 2-year rule and
your solicitor will advise you on this .

The Personal Injuries Assessment Board (PIAB) Average Payments of Compensation
• Minor Injuries: €5,000 to €15,000
• Moderate Injuries: €15,000 to €40,000
• Severe Injuries: €40,000 to €75,000
• Very Severe Injuries: €75,000 to €125,000+

Your solicitor will advise you on the range of compensation and all steps to be taken.

Early contact with your solicitor is strongly recommended.

PERSONAL INJURIES  What to do if you Slip or Trip on Another Person’s Property

Mon, 31 Mar 2025 21:29:02 GMT

Common personal injuries occur when people slip on wet floors which can happen in shops, business premises or visiting a private house.
County councils are obligated to keep pathways safe for pedestrian usage. Uneven footpaths have been the cause of many accidents and court cases.
Where the fall is our own fault contributing to the accident and injury, it does not fully absolve the legal liability for the obstacle that causes the accident.
Responsibility for keeping premises safe applies also to private homes and property.

Businesses and local authorities are insured for such claims and many home insurers also cover these.

In such a situation, where a claim looks likely, you should act immediately by:

• Taking note of the date, time of day and place of the accident.
• If any person witnessed the accident, obtain their name and contact details.
• If it was a business premises, bring the matter to their attention to get it documented. Follow up by email/letter to start a record.
• Ideally, take a photograph of where the accident happened and the obstacle that caused the accident.
• Visit your GP (or hospital), keep record of same, who you saw etc.
• If you wish to make a claim because of the injury, consult your solicitor.
• Keep records of any medication and costs incurred.

Property Owners
There are exceptions where a court will find the property owner not responsible for the accident, these occur when:
• You were a trespasser on the property (i.e. not permitted to be on the property).
• Your actions caused the accident.
• Another person would have avoided the hazardous obstacle.
• The property owner took all reasonable procedures to prevent the accident.
Alternatively, the property owner will be held liable if:
• The owner had not taken all reasonable steps to avoid an accident happening.
• The obstacle that caused the accident was made by the property owner or an employee who knew or should have known of the danger.

Compensation :
Not all accidents require hospitalisation so in these less serious claims it is important to keep notes of any financial loss incurred that relate directly to the acccident. So, early contact with your solicitor is vital in assessing whether it is worth taking a case at all. Where a property owner disputes the claim then you must prove that they were negligent. If a court is not satisfied that the property owner was responsible, then you will incur their legal costs as well as your own. So, discuss the claim with your solicitor who will advise you on all matters involved.

Your solicitor will advise you also in what court to take the case, i.e. High Court, Circuit Court or District Court.

LANDLORD & TENANT  Landlord Breached Rent Pressure Zone (RPZ)

Mon, 31 Mar 2025 21:28:12 GMT

The tenant moved into a three-bedroom house in Swords, Co. Dublin in 2019 and paid a rent of €1,900 a month. She never queried the rent until a neighbour informed her in the summer of 2023 that the previous tenant had been paying €1,500 pm.

The tenant said that she was not familiar with the RPZ rules and only that she was served with a notice to terminate the lease that she went onto the RPZ website and read about her rights as a tenant.

The tenant claimed that she asked the landlord how much the previous tenant had paid but she claimed that he told her that it was none of her business. The landlord claimed that he was never asked by the tenant what the previous rent was.

The landlord told the Residential Tenancies Board (RTB) that the previous tenant had rented the house from October 2015 to July 2018 at a monthly rent of €1,500.

The RPZ rules came into operation in December 2016.

As the house was located in a designated RPZ zone, the maximum annual increases the landlord could apply was 4%. On this basis the maximum he could have charged the tenant at the start of the new tenancy in 2019 was €1,754 per month. Therefore, there was a monthly overpayment of €145.21.

The landlord said he entered the lease agreement in good faith and in compliance of the law as best he could.

The RTB awarded the tenant €8,500 for the overcharging of rent.

Germaine v Horgan Residential Tenancies Board Ref No.: TR0824-007961, 8 January 2025.

MEDICAL NEGLIGENCE  Time Limits

Mon, 31 Mar 2025 21:23:21 GMT

Time limits for starting an injury claim are set out in the Statute of Limitations legislation for all claims, including medical negligence claims. For the latter, there is a general rule that cases must be commenced within two years from the date of the alleged negligent act.

There are though exceptions to the general rule. This can arise where the injury caused only presents itself later, outside the two-year limit, and for this situation, the critical element is the ‘date of knowledge.’ So, in this case, the two-year period would run from the date the injured party became aware that they had suffered an injury and that the injury was caused by the negligence of a third party. To qualify for the exemption, the party must plead that they were unaware of the alleged negligence in the two-year period from the wrongful act.

What is ‘Date of Knowledge’?
In cases where on the date the accident occurred, the injuries are immediately obvious or noticeable, then the two-year rule will apply. But that is not always the case, particularly in illnesses which can take longer to become noticeable. In the latter cases, the important date as far as initiation of litigation is concerned, is the date the injury was discovered.

The protocols to extend the two-year rule also applies to children and people with intellectual issues. Different rules apply to children than adults. Here a person is considered a ‘child’ until their 18th birthday. Note the two-year rule runs from the date of their 18th birthday, but they may also take their case earlier by suing through their mother, father, or guardian.

Issuing Proceedings
Once legal proceedings have been issued and correctly served on the parties, the clock stops on the limitation period. If a person is considering making a claim, they should consult their solicitor early as there is much work to be done prior to the issuing of legal proceedings.

In pursuing a medical negligence claim, your solicitor will request the medical records, which can take time. Then on receipt of them, your solicitor will need to obtain an independent medical opinion on the injury/illness and this person will be your expert witness.

There may be other witnesses to be considered by the legal team so all these matters must be reviewed by your legal team before legal proceedings can be issued. The two-year time limit will go quickly, so consult your solicitor as early as possible.

PROPERTY  Claim on Registration of Title

Fri, 14 Mar 2025 14:38:49 GMT

A Circuit Court appeal was heard in the High Court where the underlying proceedings were taken pursuant to section 62 of the Registration of Title Act, 1964 (as amended by the Land and Conveyancing Law Reform Act, 2013).

The plaintiff in the case had sought an order for possession in respect of a charge on registered land. The Circuit Court judge granted the order for possession. The defendant, a lay litigant, appealed the order to the High Court.

There was an alleged change in the ownership of both the registered charge and the underlying debt secured upon the charge to the plaintiff in these proceedings, namely, Pepper Finance Corporation (Ireland) Ltd. The transferee (Pepper) made a substitution application to the High Court in March 2023 by way of an ex parte application. The application was made pursuant to Order 17, rule 4 of the Rules of the Superior Courts. The original plaintiff was KBC Ireland plc.

The standard practice in granting these ex parte orders is a provision that the defendant is informed, in writing that (a) a copy of the affidavit and exhibits grounding the substitution application be made available upon request (b) that an application may be made to court to set aside the order (c) that the defendant has an entitlement to contest the transfer of the loan and/or any security involved to Pepper at the hearing of the action.

The form of the order made by the court is that Pepper has effectively stepped into the shoes of the original plaintiff KBC Ireland plc.

The first issue the judge had to consider was whether the substitution order made in favour of Pepper was correct. The judge referred to a judgment of the Court of Appeal in Irish Bank Resolution Corp. v Halpin [2014] IECA 3. Here the view of the Court of Appeal was that rather than Pepper stepping into the shoes of KBC Ireland plc, the appropriate order is that the transferee is joined to the appeal as a second plaintiff. The decision in Halpin has been followed in Permanent TSB Plc v Morrissey [2017] IEHC 18 in the context of an appeal from the Circuit Court.

Therefore, in adopting the Halpin case, there was an issue before the court as to whether the order made in the present appeal was correct in that it released the original plaintiff (KBC) from the case.

Pepper’s counsel attempted to make a distinction between an appeal from the Circuit Court to the High Court, and an appeal from the High Court to the Court of Appeal.

However, the presiding judge felt he did not have to rule on this, nor the grounds of appeal from the appellant on the competing considerations as he felt that there was a significant point of law to be decided upon and which was one that should be decided by the Court of Appeal. As it stood, the court was bound by the judgment of Halpin though counsel for Pepper tried to distinguish Halpin from the present case and this stating the court was not bound by Halpin.

The judge thus adjourned the appeal proceedings to allow the preliminary jurisdictional issue to be determined by the higher court.

Pepper Finance Corporation DAC v Tracey O’Reilly High Court [2024] IEHC (ex tempore)

PERSONAL INJURIES  Drunkenness at the Time of Accident Defeated Claim.

Fri, 14 Mar 2025 14:37:26 GMT

The plaintiff’s claim arose from an incident where he maintained that his wheelchair was stopped at a road junction when it was struck by the defendant’s taxi shortly before midnight on the night of 7th May 2017.

He took his case to the Circuit Court for pain in his shoulder and arm, and a graze to his hip.

The plaintiff claimed that four days after the accident he went to his GP, then a second time the following month and he continued to receive treatment from the wheelchair association physiotherapist. He claimed that the defendant’s taxi struck his wheelchair on the right-hand side, and he tumbled out of the chair onto the middle of the road. He told the court he only had particular recollection of the incident through ‘flashbacks.’ He said his self-esteem took a blow when he was no longer able to compete at an elite level of his sport because of his shoulder injury.

The legal teams for both sides disputed whether the plaintiff was on the incorrect side of the road when using his wheelchair.

On the night of the accident, the plaintiff had dinner at home and then went to a pub between 5:30 pm and 6:30 to watch a football match and have a few drinks. He remained in the pub until close to midnight. He admitted that he ‘probably drank a pint an hour.’ On being challenged on his state due to alcohol, he answered, ‘I was not drunk…I was not sober’.

A Garda, who was at the scene, said the plaintiff was very intoxicated. He said the plaintiff verbally abused him and the ambulance staff who were trying to assist him. The garda also said that the plaintiff would not give a description of what had happened. The plaintiff’s explanation for this was that he must have been disoriented and confused after the accident. He said he had a pain in his head. The hospital staff had to be alerted as well as security staff because of the plaintiff’s aggressive and abusive condition.

Counsel for the defendant asserted that the plaintiff was ‘stocious drunk’.

The defendant stated in evidence that his taxi was stopped at the junction and that the wheelchair ran into the taxi, with the point of impact being the front registration plate.

The plaintiff also gave the wrong address for the accident, so an engineer consulted for the plaintiff examined the wrong junction in 2017, then several years later examined the correct junction.

The judge dismissed the plaintiff’s case ruling that there was no liability against the taxi driver for the accident and he was satisfied that the taxi vehicle was stationary. The evidence of the plaintiff could not be relied upon. Costs were awarded against the plaintiff.

Hegarty v O’Halloran Cork Circuit Court (His Hon Judge Sheehan) 15 January 2025.

DATA PROTECTION  Personal Data Breach against a Government Agency

Fri, 28 Feb 2025 22:03:34 GMT

This case concerned an alleged breach by the Child and Family Agency in releasing personal data which the plaintiff claimed was negligent on their part and a breach of their duty in regard to highly sensitive information concerning the plaintiff. This confidential information was circulated to a third party without the consent of the plaintiff.

The sensitive information related to abuse suffered by the plaintiff during her childhood.

The defendant accepted that a personal data breach had occurred. They conceded that sensitive information was released to the person, the subject of the abuse allegations, and other family members of the plaintiff.

The plaintiff claimed that the breach caused damage to her relationship with her family and that she suffered upset and distress as a result.

As the defendant accepted that they were responsible for the breach, the court only had to decide on what damages should be awarded.

The judge was guided by the decision of Kaminski v Ballymaguire Foods where €2,000 was awarded for non-material loss. In that case, the plaintiff’s personal data, captured via CCTV, was used without the consent of the plaintiff for workplace training.

The judge in applying Kaminski, held that given the private and sensitive nature of the childhood sexual abuse allegations, the data breach was sufficiently serious to justify awarding compensation and thus awarded €7,500 to the plaintiff.

The court accepted the plaintiff’s evidence and noted that the defendant provided no evidence regarding any steps taken to mitigate the damage caused to the plaintiff. However, the defendant had apologised to the plaintiff, several months after the personal data breach occurred.

The fact that the agency took no steps to mitigate the damage to the plaintiff, undoubtedly had a negative effect on their case.

M.H. v Child and Family Agency, Circuit Court [2023] IECC 11 ex tempore

MEDICAL NEGLIGENCE Post-birth Care Claim

Fri, 28 Feb 2025 22:02:26 GMT

James Prior, a twelve-year-old sued the HSE through his mother for the care he received after his birth.

It was claimed that he suffered difficulties because of the care and management by the hospital. It was submitted to the court that he had missed many milestones in his life. He did not smile until he was three months old and did not walk until he was three. His claim was that there was a failure by the hospital to exercise reasonable care in and around his management and treatment in the neonatal period. He was born in Mullingar Regional Hospital in 2012 but was transferred to a Dublin hospital when he became unwell.

The court heard that a cranial ultrasound on the day after his birth was clear, but five days later it showed difficulties with the baby’s brain cells.

Emergency measures should have been taken it was submitted. The transfer of the baby to the Dublin hospital was a two-hour journey by ambulance.

In the case heard in the High Court, the HSE denied all of the claims.

The case was settled by mediation between the parties and the matter came before the High Court to approve the settlement. The terms reflected a 25% reduction on the full value sought to account for the litigation risk in the case.

The matter will come before the court again in the future to assess James’s loss of earnings and future care needs. The amount agreed between the parties in mediation and approved of by the court was €1,500,000.

James Prior (Suing by His Mother, Tracey Carroll) v HSE High Court (Coffey J) 11 December 2024.

PRACTICE Amendment of Statement of Claim in the High Court

Mon, 17 Feb 2025 22:45:33 GMT

An interesting case came before the High Court where a plaintiff sought permission to amend his statement of claim.

The plaintiff, a lay litigant, was suing a receiver and vulture fund for the alleged wrongful repossession and sale of his business premises after he fell into arrears with the mortgage on the building.

The plaintiff issued a plenary summons in November 2020. The statement of claim was delivered in July 2021. This was followed by the discovery procedure in which there were delays and in April the plaintiff proposed to amend the statement of claim by email to the defendants. The defendants opposed the amendment, and the matter came before the High Court for decision.

During the hearing, the defendant agreed with the plaintiff on some items which could be readily amended.

The plaintiff relied on Rossmore Properties Ltd v ESB [2014] IEHC 159 to allow him to make the amendments. The Rossmore case emphasised that amendments to pleadings should generally be allowed unless they caused real prejudice.

The plaintiff claimed that the amendments were essential to his case and that there was no causal connection between the alleged delay or content in his proposed amended statement of claim and the prejudice asserted by the defendants in respect of any alleged missing documentation. The plaintiff further alleged that any lapses attached to the defendants' failure to comply with their obligation to keep in safe custody all documents required for litigation prior to initiating any legal actions and until conclusion of such actions.

The defendants complained that some documents sought by the plaintiff were no longer available by the originating bank (PTSB) and the plaintiff’s request for documents that went back to 2002 prejudiced them. The vulture found had requested such documents from the bank but these were no longer available. The plaintiff claimed the defendants were negligent in failing to keep all relevant documentation safe.
The defendants also objected on the grounds that many of the amendments sought contradicted the Statement of Claim already filed.

The judge cited the provision in the Rules of Court:

Order 28, rule 1 of the Rules of the Superior Courts 1986, as amended (“RSC 1986”) provides for the amendment of a Statement of Claim, as follows:

“The Court may, at any stage of the proceedings, allow either party to alter or amend his indorsement or pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.”

The judge then examined the applicable principles as found by the Court of Appeal 15 in Stafford v Rice [2022] IECA 47 and applied by the High Court in McDonald v Conroy [2024] IEHC 69.

The principles for an amendment to a Statement of Claim were established by the Stafford case and overruled the findings of the Rossmore case. The grounds set out by the plaintiff did not comply with the principles of the Stafford case. Accordingly, the judge allowed the changes that had been agreed between the parties but rejected all other amendments sought by the plaintiff.

Kelly v Fennell and Link Services Ltd High Court (Bradley J) 28 January 2025.

PERSONAL INJURIES  What Constitutes an ‘Unusual Danger’ in Slip and Trip Accidents

Mon, 17 Feb 2025 22:41:40 GMT

A judge in a recent case explored the common law view on occupiers' liability when it comes to ordinary everyday dangers described as ‘usual’, and which do not attract liability. The case was appealed from the High Court.

The common law duty of an occupier to a visitor was to use reasonable care for one’s own safety.

In the case before the court, the defendant was a well-known operator of fuel-stations with convenience stores throughout Ireland. The plaintiff, who was five months pregnant, lives near the Strand Road station of the defendant. On driving to work on the morning of 26 August 2016, just after 7 am, she stopped at the station for a take-away coffee. She parked in front of the convenience store in a designated space on the garage forecourt with the intention of getting the coffee and walking across the road to sit on a park bench beside the strand to watch the sun rise over Dublin Bay.

Where she parked, there are three bays perpendicular to the store on either side of the entrance. She parked in the middle space on the right side facing the store. The space to her right was empty. The three spaces were ‘bookended’ at the right extremity by a raised pavement, described as a ‘nib pavement’ bounded by standard concrete kerbstones.

After the plaintiff got her coffee, she walked to the back of her car intending to cross the road to the strand. When she came to the nib pavement, she tripped over the kerb and fell forward onto the ground. The accident was caught on CCTV which showed the sun was very low in the sky and the plaintiff was facing it wearing sunglasses as she walked. It was clear that she did not see the raised kerb immediately before she fell.

The plaintiff accepted in evidence that as she lived near-by she must have visited the station before and must have been aware of the nib pavement. She said she could not take the route to the strand along the footpath in front of the store because it was blocked.

Both parties had expert forensic engineer witnesses. The plaintiff’s expert said that the plaintiff was presented with a trap situation, that is because the footpath was blocked, she had to take the route she took. He said, typically these kerbs are painted yellow or dished and in his opinion the defendant was in breach of section 3 of the Occupiers’ Liability Act, 1995.

The defendant’s expert witness had a different opinion. He said the kind of pavement the fuel station had was a common part of the vernacular of car park design. He described the kerb as ‘widely found, is common and ubiquitous.’ He agreed that some kerbs are painted but said this was rare and most kerbs were not marked. He described the parking arrangements of the defendant as ‘normal and very familiar arrangement on concrete footpaths and tarmacadam streets.’

The plaintiff stressed the point that the pavement immediately in front of the store was blocked and had this not been the case she could have taken the different route and avoided the accident.

The High Court judge found that the safe exit route was blocked by the defendant’s obstruction and amounted to negligence and breach of duty of care by the defendants towards the plaintiff.

The defendants appealed to the Court of Appeal.

The central point of the defendant’s appeal was that there was no evidence before the High Court to suggest that the pavement nib was an unusual danger of a kind that attracted liability under the 1995 Act and that the High Court judge in her conclusions failed to have regard to the fact that it was undisputed that the nib pavement was a commonplace feature to be found not only in garage forecourts but in street and car park architecture generally, both in public and private.

The Court of Appeal was satisfied that there was no true causal link between the obstruction of the footpath and the plaintiff’s accident. It pointed out that there were any number of reasons why the plaintiff took the route that she did. There was nothing to suggest that the defendant had a duty to the plaintiff to provide a footpath at all, and accordingly, whether it was blocked or not was irrelevant.

The primary difficulty with the finding of negligence is that it was arrived at without any reference to whether or not the nib pavement constituted a danger in respect of which the defendant failed to take reasonable care to ensure the plaintiff was not injured. For this, the Court of Appeal considered the common law duty of care before the 1995 Act. Judge Peart in the case of Lavin v Dublin Port Authority plc [2016] IECA 268 cited the 1959 case of Long v Saorstat Eireann 93 ILTR 137 in which Murnaghan J said in relation to the duties of an occupier:

‘The plaintiff had to establish that the defendants had failed to take reasonable care to prevent the damage from unusual danger which they knew or ought to have known.’

Peart J in considering the Lavin case said that section 3 of the 1995 Act reflects the common law principles and put it on a statutory footing.

Decision of the Court of Appeal
There was no evidence in this case that the nib pavement constituted an unusual danger. In fact, the opposite was the case. Considering the two expert witness’s evidence, the court found the defendant’s expert witness gave the clearest evidence which went largely uncontradicted. The court considered the undisputed evidence, the law and common sense in everyday life and could come to no other conclusion but to allow the appeal finding that there was no breach of the 1995 Act by the defendants.

Kandaurova v Circle K. Energy Group Ltd 2025 [IECA] 13.

LANDLORD & TENANT  Arrears due to Landlord

Thu, 30 Jan 2025 10:29:59 GMT

A tenant pensioner was ordered to pay her landlord €6,000 for arrears of rent in a case before the Residential Tenancies Board.

The tribunal heard how both sides were let down by the Housing Assistance Payments (HAP) scheme which took 15 months to process the claim before any payments were made. When the payments did come they were not backdated.

The landlord said the HAP process had broken down after the tenant had moved into the property in 2022. She said that the tenant would do ‘the best she could’ with the rent but the mortgage on the property had since been sold to a vulture fund which put her under pressure as the vulture fund was looking to repossess the house to sell it.

The rent was up to date since the HAP payment came into play but there were pre-HAP arrears of €6,369.50 outstanding.

The tenant told the tribunal that she did not expect the HAP process to be so long and in order to pay the rent she had to sell personal items for the initial period of the tenancy. She said the forms for HAP were sent to the wrong address and she had to get documents translated concerning her German pension.

The tenant did not dispute that arrears were due.

Regarding rent payments made, she paid in cash and did not keep a record of the amount she paid.

The tribunal said evidence given by both sides was not entirely satisfactorily and observed that the record keeping was poor which did not help. They made an award of €6,000 in favour of the landlord.

Roettger v Sheehan Residential Tenancies Board (TR0824-007861) 9 January 2025.

PROBATE  No Will - What Happens Here?

Thu, 30 Jan 2025 10:26:38 GMT

The law has provided for a no will situation under the Succession Act, 1965.
In this case where a loved one has died without a Will, contact your solicitor who will bring you through the process.

Under the Act, the Rules of Intestacy applies, these are necessary in order for the assets of the deceased to be fairly and properly distributed.

A Will made invalidly will be treated as no Will and the Rules of Intestacy will apply. Also, if there is a legal challenge to the Will in court, the Will could be held to be invalid and the statutory provisions on intestacy will apply.

What Are the Rules of Intestacy?
If the deceased person is survived by:

(a) Spouse/civil partner but no children. Here the spouse/civil partner get all the property/assets, known as the ‘estate.’
(b) Spouse/civil partner and children – spouse/civil partner gets two-thirds of the estate, the remaining one-third of the estate is divided equally between children (if a child has already died his/her children take the share of the pre-deceased parent equally between them)
(c) Parents, no spouse/civil partner and no children – estate divided equally to both parents or entirely to one parent if only one survives.
(d) Children and no spouse/civil partner – the estate is divided equally between deceased’s children (as above)
(e) Brothers and sisters only – the estate is divided equally between the deceased’s siblings. The children of a pre-deceased sibling are entitled to receive that sibling’s share of the estate in equal shares.
(f) Nieces and nephews only – the estate is divided equally between those surviving the deceased.
(g) Other relatives – divided equally between nearest equal relationship. In this case, lineal is preferred over non-linear descendants or ascendants.
(h) No relatives – the state (Ireland)

If any of these situations arise, contact your solicitor.

PERSONAL INJURY Psychological Injuries

Thu, 30 Jan 2025 10:17:00 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).

PRACTICE  Inherent Jurisdiction of the High Court

Thu, 16 Jan 2025 10:11:50 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 10:09:58 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

PERSONAL INJURIES  Scaring Injury

Sun, 22 Dec 2024 14:29:26 GMT

When someone suffers a scarring injury, the impact is not just the pain incurred but also the emotional impact and this is even more so if the scarring is on a visible part of the body, such as facial.

Like all cases taken to court for compensation, the court will look at several factors in assessing the damage. Whether the scarring is permanent is a relevant factor. The location of the scarring is important, so a scarring on the back or an area normally hidden by clothes will not attach as much damages as a scar on the face or hands. However, a court will consider, that while a scarring on the person's back is out of sight, such visibility can be noticeable and unsettling in a swimsuit, for example, and this might cause a person to drop such sports because the scar is so visible.

The severity of the scarring and whether the scars are likely to clear in time or be a permanent feature is also an important factor in determining the level of damages.

Age can be factored in as too the gender of the injured person. The work of the injured person is also factored in especially where the scarring is visible.

Proving the Injury
This involves ideally having evidence of how the injury occurred and preferably supported with witnesses. It is important that you record when the accident occurred and the circumstances of it. Did you immediately go for medical assistance? Where and whom did you see? Were you referred to a skin specialist, again whom and when? What treatment or surgery did you receive?

If liability is contested, you will have to prove that the other party was liable for the scarring. Here you solicitor will assist you in the steps to be taken.
If liability is not in dispute, you still need to show the court how much you have suffered. Here you will need an expert witness who will have to examine you and will give the court their expert opinion on the damage, the seriousness of it and whether it is permanent.

Time Limits
Do not delay in seeking legal advice as there is a two-year limit in starting litigation for personal injury cases. There are some exceptions to this, and your solicitor will advise you. But do not delay as, once outside the time limits, it is extremely difficult to reverse that, and you might lose your case and still suffer some costs.

FAMILY LAW  Adoption Order for Teenager Made in Absence of Natural Parents Consent

Sun, 22 Dec 2024 14:20:02 GMT

A case came before the High Court where an adoption order was sought for a teenage girl despite the lack of consent of the girl’s natural parents.

The teenager, ‘L’ was born in 2007 and with the consent of her natural parents had been in care since her birth. Since the age of three she was with her current family.

L’s natural parents have had difficulties in their lives and their participation in her life has been limited to supervised visits. Her father who was also adopted had a negative view of Child and Family Agency due to his own personal experiences.

The applicant to the court was the Child and Family Agency, Tusla and the second named applicant for the adoption of L but without the consent of her birth parents.

The judge, Ms Justice Jackson considered the law under the Adoption Act, 2010, as amended and case law. Section 54 (2A) (a) which requires that it must be satisfied that for a continuous period of not less than 36 months immediately preceding the time of the making of the application, the parents of the child to whom the declaration under s.53(1) relates have failed in their duty towards the child to such extent that the safety or welfare of the child is likely to be prejudicially affected.

The provisions of the Act were disputed by the natural parents of L who told the court that they did not abdicate their responsibility for L and that they always maintained contact with her.

The judge also considered under the Act whether there was a reasonable prospect that L’s natural parents would be able to care for her. Here the court found guidance in the case of Re B [2023] IESC 12. This case said: ‘that abandonment does not necessarily mean or imply abandonment in the sense of the physical abandonment of a child (although, of course, it could do so). The subsection is rather directed at the question of the abandonment of parental rights vis-a vis the child.”

The judge took into consideration the proportionality of making such an adoption order for L in accordance with the legislation and the case of Re B. This recognised that the child’s welfare is of central importance. The judge noted: ‘Adoption is rather a question of status which has lifetime consequences going well beyond the issue of care during the minority of the child. The making of an adoption order reflects the fact that a new family relationship has been created and this is one which is underpinned and supported by the State and its legal system.”

The High Court judge found that the case before her was on similar terms as the case in Re: B on proportionality and that authorising of an adoption order in respect of L was proportionate.

The judge found that the natural parents’ acceptance of her fosters’ parents’ positive role in L’s life as a good sign and she encouraged L to maintain contact with her natural parents and in so doing the judge granted the order of adoption.

Child and Family Agency & The Adoption Authority of Ireland & Ors [2024] IEHC 678.

FALLEN TREES  Who is Responsible?

Sun, 22 Dec 2024 14:17:35 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.

LANDLORD & TENANT  Landlord Find by Residual Tenancies Board for not Returning Deposit

Fri, 20 Dec 2024 14:27:00 GMT

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WORKPLACE INJURIES  Employers’ Responsibilities

Fri, 20 Dec 2024 14:23:11 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.

PERSONAL INJURIES  Award Reduced Due to Exaggerated Claim

Fri, 29 Nov 2024 17:28:59 GMT

The plaintiff, a personal trainer, claimed that he suffered from claustrophobia as a result of an incident in June 2021 where he had been trapped in a lift. He claimed that he could no longer tolerate confined spaces and he feared that he would never to able to fly again.

In the course of the trial, photographs were produced showing the plaintiff striking a muscular pose in a one-person sauna following the lift incident together with photos showing he had flown to Rome on a visit.

His Hon. Judge Shannon said he had to take into account the photographic evidence in considering damages. While the judge found the plaintiff to be a genuine witness and accepted that he suffered from nightmares and panic attacks, the judge nonetheless could not ignore the photographic evidence of the plaintiff coping in the confined space of a single-use sauna and his evident ability to cope also with air travel.

Counsel for the defendant told the court that a few days following his return flight from Rome, that he failed to tell a doctor at a medical examination about his flying activities.

Previously, the court was informed that the plaintiff had been offered €15,000 in settlement but he had declined.

In assessing the damage suffered, the judge awarded the plaintiff €8,250 plus expenses of €2,394.

Counsel for the defendant asked the judge to award costs on the District Court scale as the amount awarded fell within the District Court jurisdiction. The judge agreed and so ruled.

The defendant had conceded that the plaintiff had been trapped in a lift at his apartment block residence until a neighbor heard his cries for help and had called the emergency services.

The court was asked to assess the damages only as the defendant had conceded fault in the case.

Robert Smith v Infinity Lifts Ltd Circuit Court (His Hon Judge Geoffrey Shannon) 21 November 2024.

COMPANY  Liability of Director

Fri, 29 Nov 2024 17:26:30 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.

PROPERTY Legal Requirements for Home Extensions

Fri, 29 Nov 2024 17:25:06 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, debris removal and possible noise issues.

PERSONAL INJURIES Slip and Trip under Occupier’s Liability Act

Tue, 19 Nov 2024 16:44:22 GMT

The plaintiff and her husband made a late booking into the defendant’s caravan park in July 2018. They were given a longer than usual pitch which exceeded the length of their caravan’s electricity cable.

The defendant, the owner of the caravan park gave them a black extension led to allow the plaintiff’s husband to connect the caravan to their service post. Her husband connected their orange cable to the post and extended it to their caravan using the defendant’s black extension lead.

The following day, which was bright and sunny, the plaintiff tripped on the electricity cable while on her way back from filling her kettle at the service post and in the process breaking her arm and injuring a thumb.

An engineer for the plaintiff gave evidence that the cable posed a tripping hazard when placed in a pedestrian area and at an excessive distance from a pitch. The plaintiff submitted that there was a duty of care owed by the defendant to minimise this risk by locating its service outlets which reduced the risk. It was claimed the hazard created a danger for the plaintiff.

The High Court Judge, Mr Justice Coffey said that the case fell within the provisions of section 3 of the Occupiers’ Liability Act, 1995. This provision sets out the duty of care a proprietor has towards a visitor to a premises to ensure that a visitor does not suffer injury or damage by reason of a danger there.

The judge looked at past cases on this subject. In Lavin v Dublin Airport Authority plc [2016] IECA 268, the court looked at the common law distinction between an ‘unusual danger’ and ‘usual’ danger. The latter could avoid a danger by taking reasonable care by the visitor.

Another case the judge considered was White v William Doherty & S&K Kerry Limited [2019] IECA 295, here the Court of Appeal decided that an uneven surface on which a plaintiff lost her footing was in keeping with the ‘naturalistic settings’ one expects to find at a caravan site and that a visitor would not expect ‘pristine conditions’ and so would be expected to take reasonable care as to any tripping hazard arising therefrom.

Mr Justice Coffey set out that no liability could arise under s.3 where as a matter of law, the risk complained of was a “usual danger” which on objective assessment is to be anticipated by the visitor, and where the risk can be avoided by the visitor taking reasonable care for their own safety.

On the balance of probabilities, the plaintiff knew the approximate angle at which her cable ran from the services post to their caravan and knew that she could have avoided contact with same had she gone around the front of her caravan. Instead, the court noted that the plaintiff walked around her husband’s parked car and was not exposed to an open cable for 16m as suggested by her engineer.

The court also noted that the plaintiff had stepped over the cable to fill her water without difficulty and would have had in her line of vision the orange cable while monitoring her kettle to ensure that it did not overflow and while turning off the tap.

It was also observed by the judge that the plaintiff was wearing flip-flops, and this did not assist in stepping over a cable.

The judge was satisfied that the electricity cable, whether hanging from the upright or lying on the ground, and whether on the path or in the grass in the immediate vicinity of the service post, could not as a matter of law be considered an unusual danger for the plaintiff and was a feature which one would expect to find at any caravan park.

In conclusion the judge ruled that there was no breach of the duty of care provided by s.3 of the 1995 Act and dismissed the action.

Scanlan v Michael McDonnell t/a The Woodlands Caravan and Camping Park [2024] IEHC 324.

ROAD SAFETY E-Scooters

Tue, 19 Nov 2024 16:42:13 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 Escooter, 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!

FAMILY LAW  Assisted Decision-Making

Wed, 30 Oct 2024 16:39:48 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:

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.
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.
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.

MEDICAL NEGLIGENCE CT scan not correctly interpreted.

Mon, 30 Sep 2024 11:00:00 GMT

A man with Parkinson’s disease was admitted to Cork University Hospital on 18 February 2019 having complained of a pain in his neck which had got progressively worse. He was admitted to the hospital at midnight.

It was claimed that had a CT examination of his neck been correctly reported as showing an abscess infection, he would not have been required to have another type of CT scan or undergo sedation.

It was claimed that there was a failure in relation to the first CT scan to correctly interpret it and a failure to recognize that it showed evidence of an abscess.

Counsel for the man submitted that the first scan showed an abscess at the back wall of the throat and had that been correctly interpreted, the man would not have needed another type of CT scan that required a sedative. It was during this second scan that the man suffered a cardiac arrest which resulted in a brain injury.

The hospital submitted that it was a very complex case and expert evidence showed that the cognitive impairment was attributed to the brain injury.

It had been contended that the hospital failed to have any or any adequate regard to the potential effects of the man’s Parkinson’s condition or of the medicine previously administered to him following the attendance at the hospital. It was also alleged that there was a failure to recognize the man’s deterioration and to intervene before he went on to suffer a cardiac arrest.

Further, it was alleged that had the man been appropriately observed or monitored following the administration of the sedative and during the course of the CT myelogram, the deterioration of his condition would have been detected and earlier intervention arranged, and the cardiac arrest and brain damage would have been avoided.

The hospital apologised to the plaintiff for the shortcomings in the treatment of the plaintiff while under their care. The apology and settlement of €2.1m was read to the court and Mr. Justice Paul Coffey approved it. By order of the court the plaintiff’s name was not disclosed.

High Court (Coffey J) 18 July 2024

FARMING LAW Succession Planning

Mon, 30 Sep 2024 10:57:15 GMT

Firstly, consult your solicitor for advice on transferring your farm ownership to family members. It is much too important to think you can do it yourself. The process involves legal, financial, tax and personal considerations, all of which have to be done in a prescribed way to manage it successfully. Do it incorrectly and you may incur tax liabilities.

Transferring the Farm to a Family Member

Decide on whom the farm is to be transferred to. Take advice on which method of transfer suits best including tax implications. The transfer can be made by gift, selling, or forming a partnership.

Partnership Option

A benefit to this option is that it need not be confined to family members. So, it can include non-family members. Essentially, a partnership is defined as an agreement between two or more people. Here the non-family members can be other farmers or businesspeople where resources are shared, and they contribute to the farm. Under the partnership agreement, lands and assets are licensed to the partnership, not transferred. This arrangement allows farmers to participate in support schemes and maintain a cohesive management structure of the farm.

There are certain criteria for a farm partnership which your solicitor can go through with you if you opt for this.

Key Matters to take into Consideration when transferring the Farm to a Family Member

Does the transferee have the necessary skills, experience, knowledge and is motivated to run the farm business?
Consider the other family members in order to avoid challenges or disputes arising. In particular, make sure the provisions in your will as to which of your children may inherit the farm are fair and reasonable and unlikely to cause a dispute.
Itemise all the items that are being transferred.

As mentioned at the outset, consult your solicitor before embarking on any option in transferring your farm to a family member.

FARMING Legal Obligation for Accidents on the Farm

Wed, 18 Sep 2024 10:54:28 GMT

The farm is a workplace, so farm owners need to ensure all safety measures are in place to safeguard employees and contract workers, farm visitors, and family members.

Statistics show that among the most common accidents are trips and falls, incidents with livestock and machinery accidents. The farmyard is the area where many accidents, some fatal, occur.

Farm Owners’ Legal Obligations

Similar to other obligations that employers have to their employees and farm visitors, The Safety, Health, and Welfare at Work Act, 2005 sets out the duties and responsibilities of farmers. Principal among these is the Duty of Care owed by farmers to others visiting or working on their farm.

Duty of Care

The Act needs to be carefully read to ensure compliance, but its main points are:

That the farm must be a safe place to work.
Ensure that the farm has in place safe work systems.
Training for employees
Farm machinery: is safe to use, properly maintained, and only qualified workers permitted to use them.
Protective clothing: where necessary, farm workers should be provided with appropriate protective clothing.

The responsibilities, however, are also on the farm workers (employees) to ensure the legislation is complied with by complying fully with instructions of their employer.

Farm Safety Statements

This a legal obligation that all farmers must display in writing and give to all farm workers and also all independent contractors who work on the farm.

The statement will identify hazards on the farm and give an assessment of the risk of injury associated with the hazards in order to minimize any accidents. However, farms with three or less employees are exempt from the Farm Safety Statement requirement.

Consulting your solicitor is always the best course of action for any farmer in doubt of his/her legal obligations.

PERSONAL INJURY Fall on Council Pavement

Wed, 18 Sep 2024 10:52:16 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

COMMERCIAL Poorly Drafted Contracts

Wed, 18 Sep 2024 10:50:38 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.

FAMILY LAW Parents and Children

Tue, 20 Aug 2024 14:28:19 GMT

The Supreme Court gave judgment on 22 January 2021 on a case regarding the medical treatment of an 11-year-old boy who suffered life-changing neurological injuries. In doing so, the court took into consideration the rights of the child and the constitutional rights of the child’s parents. The court heard submissions on wardship and the rights of children.

The Supreme Court approved the ruling of the High Court in invoking its wardship jurisdiction because it was faced with a challenge as to the welfare of the minor and where the guardian ad litem appointed by the court to act as the voice of and on behalf of the minor took a view quite different from that of his parents regarding the medical treatment that was warranted and justified in the light of the pain from which he was then suffering.

However, it found that it did not consider it to be absolute and ruled to limit the scope of the wardship by giving directions as to the medical treatment of the minor without taking or vesting in the court all authority over the child.

It is a complex judgment and consulting your solicitor is essential where parents are in a dilemma regarding difficult decisions to be made with sick or injured children.

DEFAMATION Time limit to issue proceedings.

Tue, 20 Aug 2024 14:27:18 GMT

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

However, in a recent High Court decision from a Circuit Court 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.

PERSONAL INJURY Importance of Having a Solicitor for Injuries Resolution Board [IRB] Claims

Sun, 11 Aug 2024 14:19:25 GMT

What is the Injuries Resolution Board?

The Injuries Resolution Board (previously called the Personal Injuries Assessment Board) is Ireland’s independent State body which assesses the amount of compensation due to a person who has suffered a personal injury as a result of a motor, workplace, or public place accident. In most injury cases you have to file your claim first with the IRB along with several documents evidencing your accident and injuries. You also need to file a detailed account of the accident.

Personal injury law is not without complication, so it is strongly recommended that you consult with your solicitor before embarking on a personal injury claim whether through the PIAB or subsequently through the courts.

Here are a number of reasons why it is imperative to engage a solicitor to make a claim before the IRB:

The IRB do not give legal advice or any legal assistance, so if you make a claim without a solicitor, you are on your own. This is different from the courts where a judge can give a lay litigant some guidance.
The Board only deals with putting a value on the claim.
The Board does not involve itself on liability for the accident/injury.
Getting all the relevant information to support your claim lies entirely with the claimant. A lay person might leave out something whereas a solicitor with experience in personal injury claims will ensure that everything is supplied and in order when submitting a claim on your behalf. Wrong or inaccurate information might result in an order for costs against you.
Injury claims can be complex involving many aspects. This is where the expertise of a solicitor is vital. A poor decision by a lay applicant or not completing the application properly, could be very costly.
Time limit: applicants have two years from the date of the accident to lodge their claim. So, if any mistakes were made in the application form, the clock is still running, and you could find yourself out of time within which to correct some details or supply additional ones

So, if you have an accident and wish to claim for damages, consult your solicitor, they will advise where to make the claim and provide all the legal guidance and advice needed to establish your claim and ensure a successful outcome through the IRB and the courts..

WILLS Making a second will for assets in foreign countries

Tue, 06 Aug 2024 14:25:59 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.

Tue, 06 Aug 2024 14:24:56 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..

FARMING/LITIGATION Trespass

Wed, 31 Jul 2024 14:15:44 GMT

A Co. Clare farmer was charged with trespassing within the vicinity of the curtilage of the dwelling and farmyard of another farmer. It was alleged he was trespassing giving rise to a reasonable inference that he was there to commit an offence or to unlawfully interfere with property.

The defence argued that the cattle trough, that the defendant was accused of interfering with, was in a field on the defendant’s land and not within the vicinity of the curtilage of the dwelling and farmyard of the complainant.

There was ill feeling between the two farmers arising from the defendant’s ex-wife taking up with the complaint which obviously gave rise to tensions between the two farmers.

The defendant told the Gardai that he did enter the complainant’s lands to take water from the trough for his overheating car.

The complainant thought that the defendant would poison the water and he took samples of it, but no water was tested.

Judge Marian O’Leary dismissed the case accepting that the cattle trough was in a field on the complainant’s land but not within the vicinity of the curtilage of the dwelling and farmyard of the complainant. Accordingly, all charges were dismissed.

DPP v Padraig O’Brien Gort District Court (Justice O’Leary) 8 July 2024 (Farming Independent).

PERSONAL INJURIES Injury from Dog Bite

Wed, 31 Jul 2024 14:14:25 GMT

The plaintiff was 19 months old when she was out walking with her mother near her home in Co. Galway when a golden retriever dog came from behind her and clamped his jaws on the child’s head, knocking her over and shaking it. It was claimed in the High Court hearing that the dog kept the child on the ground, face down, while her mother hit and kicked the dog to make it release the grip on her child’s head.

The plaintiff child took the case through her mother.

The injured child was taken to Portiuncula Hospital before being transferred to a Dublin Hospital for further treatment. Here she had surgery to repair multiple scalp lacerations.

The child plaintiff was in hospital for five days and on being discharged she was left with scars on her scalp and upper neck. However, a plastic surgeon reported that all her scars had matured, and no further surgery would be required.

The dog was owned by the defendants, Declan and Ann O’Grady who lived close to the plaintiff child.

It was claimed that the dog caused the attack and bite on the child and that there was a failure in the circumstances to properly control or restrain the dog by the owners. It was argued that the owners ought to have known of the propensity of the dog to attack or bite people who came too close to the O’Grady property. It was further claimed that the defendant dog owners ought to have a proper warning for people walking lawfully near the defendants’ lands or house and that this failure presented a threat to innocent walkers. Finally, it was claimed that the defendants should have had the dog muzzled and this was an additional failure on their part.

The plaintiff reached a settlement of €115,000, which the High Court judge approved of.

Kate Nolan (Suing through her Mother) v Declan and Ann O’Grady High Court (Miss Justice Nuala Jackson) 24 June 2024 (Irish Times, 25 June 2024).

MEDICAL NEGLIGENCE Delay in Diagnosing Meningitis

Wed, 17 Jul 2024 14:12:49 GMT

This case involved a newborn baby that was born on 8 July 2019 at Portiuncula Hospital, Ballinasloe, Co. Galway with an apparent sepsis infection. Counsel for the child argued that the baby should have been given antibiotics sooner after birth and if that had happened, she would not have suffered from sepsis/ meningitis. He said that with meningitis, a blood
clot formed in the baby's brain, and it was claimed that she suffered a brain injury. It was further claimed that there was a failure to appreciate the signs of sepsis in the first hours after birth. The baby was not given antibiotics for another two days.

At midday on 10 July 2019, it was claimed the baby was admitted to the neonatal unit, one hour after being seen and having sepsis investigated. It was claimed she exhibited neurological signs, but no antibiotics were given. A decision was then made to start antibiotics and the baby was put on them at 1.pm.

The hospital had an expression of regret read out to the court in which they apologized for the distress caused and regretted that some aspects of the care to the mother and baby did not reach the standard to which they aspired.

Counsel said that the HSE admitted a breach of duty and that there were signs of infection after birth. The HSE admitted that there should have been a sepsis workup, and antibiotics should have been admitted. The issue of causation still remained undecided.

The parties agreed a settlement of €1.7m which was approved of by Mr. Justice Paul Coffey noting that it was a fair and reasonable settlement.

Rehmah Shafiq (Infant) v HSE High Court (Coffey J) 21 March 2024.

SPORT LAW Assault by Players During a Game

Wed, 17 Jul 2024 14:11:32 GMT

We have witnessed on TV players involved in punch-ups which attract negative comments about the club or players involved. But can such assaults result in criminal prosecutions?

The answer is ‘yes’ because such actions are clearly outside the sport's rules. Where there are no significant injuries inflicted, the matter is usually resolved on the pitch by the referee. However, where a player suffers a more serious injury, then the ordinary rules of law apply, and the matter can be investigated by the gardai which could result in a criminal charge.

When an injury is caused during play and the gardai become involved, they will investigate the incident, interview other players and the referee, and send their report to the Director of Public Prosecutions (DPP). It is that office, on reviewing the gardai’s file, which will make the decision whether to proceed or not with a prosecution. If the DPP believes there is a good chance of a successful prosecution, then they will have the offender charged.

If the DPP decides not to prosecute, the injured party can still take a civil case against the offender for personal injuries. The civil case can always be taken anyway and if it is heard after a successful criminal prosecution, the conviction of the offender will assist in their civil case.

It is a fact that many sports involve a level of physical contact, so in deciding on whether a prosecution can be made, the DPP has to look at the facts and decide whether, if the offending player stepped over the line, his/her actions changed from the rough and tough physicality of the game, to a criminal act.

In 2004 a court considered an injury caused by a Co. Down Gaelic footballer where the defendant broke the jaw of a player in the opposing team. In this case, where the defendant was found guilty, the judge said, ‘to strike someone without legal justification is a crime, whether it takes place in a street, in the family home, or the football pitch or elsewhere.’

In England, there have been prosecutions resulting in jail terms for serious assaults on the sports field.

In Ireland, there is no specific legislation dealing with injuries arising from sporting activities so the law that exists is case law. If a case arises that may not have been judicially decided on here before, then a court may follow English decisions. One of these is R v Barnes a 2004 decision. This case involved an amateur footballer who was seriously injured while playing a match. This case is important because it sets out the principles to be applied regarding player liability. This case also considered what is regarded as the ‘Playing Culture’ and what is and is not acceptable.

Sport law is not straight forward so consult your solicitor for advice if considering any action or advising a sports club on incidents occurring on the field. .

LITIGATION Costs

Tue, 02 Jul 2024 20:54:15 GMT

In a recent High Court judgment, the issue of applying District Court costs in a case taken in the Circuit Court was considered by the court.

The case concerned a personal injury where the applicant/plaintiff fell on a public footpath in Dungarvan, Co. Waterford. The plaintiff won the case and was awarded €8,000 and costs but as the amount awarded was within the jurisdiction of the District Court, the costs awarded were on the District Court scale, not the Circuit Court scale where the case was heard.

The High Court judge was alarmed at the legal costs the plaintiff's solicitors claimed after the taxation of costs amounting to €24,231 which was a multiple of three times the award to the plaintiff. The plaintiff appealed by way of Judicial Review asserting that the District Court Rules Committee and the County Registrar acted in breach of s.17(4) of the Courts Act 1981 (as amended) which was argued as prohibiting the imposition of scale fees by any rules of court.

The court considered the legislation cited by the defendant and case law and found that “the point is that the action could have been brought in the District Court, where it is likely that it would have been heard with considerably less formality in terms of pleading and with less delay.” “The procedure in the District Court is designed to provide a fast and economic resolution of civil actions". The High Court judge was satisfied that in all the circumstances ‘'the obtaining of a decree following a hearing in a defended case, comes within the description of “the doing of a specified thing”, as provided for in the proviso, or exception to the general prohibition on having scales of fees, as provided for in s.17(4).”

The High Court judge emphasized that “it is entirely sensible that there be a scale of recoverable fees, which is applied across the board” and “enables people to know what level of legal costs they are likely to face if they are unsuccessful in a civil action heard in the District Court”. The judge found that it had not been established that the applicant’s constitutional right of access to the courts had been infringed by virtue of the size of the shortfall between the fees charged and those allowed, as the County Registrar had not declared that the bill of costs was reasonable.

The court concluded that, contrary to the contention of the applicant/plaintiff, there was no evidence that the County Registrar did not have regard to the matters set out in Schedule 1 of the 2015 Act.

Accordingly, the High Court refused the appeal by way of Judicial Review and upheld the decision of the Circuit Court judge.

Nolan v. The County Registrar for the County of Waterford & Others (2024)

PERSONAL INJURIES False Claims Can Lead to Prison

Tue, 02 Jul 2024 20:49:43 GMT

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 defense 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.

PROBATE Role of Executor

Tue, 02 Jul 2024 20:47:17 GMT

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 itself, it can be straightforward or in a complex Will, quite an undertaking and time-consuming. The solicitor acting for the deceased will render advice and guidance.

Put simply, the main function is to gather all the deceased’s assets and pay off their debts and then distribute the balance in accordance with the Will.

This is called the ‘administration of the estate.’ Normally, Wills will have more than one executor, so the functions to some extents 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 executor.

The first step is to obtain a Grant of Probate and the solicitor will seek to extract this acting in consort with the Executors. This document is very important as it empowers banks, brokers etc to hand over assets to the Executor's solicitor and authorises a sale of the deceased's property by the Executors. They would refuse to do so unless there is a Grant of Probate. The solicitor will open an Executor's bank account to lodge any funds from the deceased’s assets.

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 required 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 office and the complexity of the application, but an estimate would be six to eight weeks, but this can be expedited if a sale of the deceased's property has been agreed.

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.
The Revenue Commissioners
Insuring assets until they are sold or vested in the beneficiaries.
Challenges to the Will (this might result in applying to the court for resolution)
Objections to you being 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 etc. before paying the net proceeds over to the nominated beneficiaries.

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

PERSONAL INJURY Time Limits

Thu, 20 Jun 2024 10:12:29 GMT

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 18th 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.

COMPANY LAW Directors’ Loans

Thu, 20 Jun 2024 10:11:25 GMT

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.

BUSINESS LAW What is Due Diligence?

Fri, 31 May 2024 16:32:07 GMT

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.

DOGS Owner’s Responsibilities

Fri, 31 May 2024 16:30:41 GMT

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:
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, Staffo

MEDICAL NEGLIGENCE Discovery of Post-Accident Medical Records

Thu, 23 May 2024 21:05:38 GMT

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.

MORTGAGE POSSESSION Bank’s Action on Foot of a Life Loan to Recover Possession and Debt Not Statute Barred, Despite Bank’s Own Delays.

Thu, 23 May 2024 21:04:15 GMT

It is important for any plaintiff, whether an individual or a bank, to comply with all necessary time limits for commencing proceedings, as failure to observe these will usually mean your action will fail.

In an unusual case before the High Court recently, and where it seemed all parties had contributed to the delays, the court had to look at the two-year time limit under the Civil Liability Act 1961, to sue a deceased person, as well as the more generous twelve year limit set out in the Statute of Limitations, 1957 to recover possession of land from a deceased person or their estate.

This arose because the borrower took out a life loan designed for older borrowers and mortgaged her house. Unfortunately, she died a year or so later and the bank had to eventually seek recovery of both the property and mortgage debt from the executor to her estate.

The borrower, an elderly lady, drew down a special life loan from AIB in 2006, where both interest and capital were only to be repaid on her death. Unfortunately, the borrower died in 2008, and it was only in 2021, that a Grant of Probate was extracted by a special administrator appointed by the court.

The bank had issued a summons to recover the debt and property in 2019 and, clearly because of the long delay in doing so, considering the borrower had died some 11 years before, the lady’s daughter contested the bank’s court action on the grounds that it was statute barred owing to the considerable delays.

Her daughter claimed the bank was barred from proceeding with its claim because of the two-year time limit allowed under the Civil Liability Act 1961, which provides that proceedings against deceased persons must issue within two years from their date of death.

The daughter had also argued that the bank was guilty of laches (i.e. excessive delay) and as such that all interest claims were also statute barred.

The judge in the case noted that the loan signed by all parties was a lifeloan and not one for 20 or 25 years. He looked at the wording of the loan, which expressly stated that all monies became due and payable only on the deceased’s death in July 2008. He took note that the bank had only issued proceedings in 2019 some eleven years later.

So, was the bank statute barred? The Civil Liability Act 1961 concerned actions subsisting against deceased persons, so the court had to consider if the bank’s cause of action were, in fact, subsisting at the time of the deceased’s death and, if that was so, the bank claim would be statute barred.

The court considered that in this particular loan agreement, the entitlement of the bank, which is contingent on the death of the borrower, is not by definition one, which is subsisting as of their date of death. In reality, the court argued the bank’s entitlement only arises after the borrower’s death.

The provisions of the 1961, Civil Liability Act did not therefore apply, and the bank’s claim was not statute barred. They had 12 years to issue proceedings under the 1957 Act and were just within the 12-year time limit allowed by that act.

As for the daughters claim of delays (laches) on the part of the bank, the court stated that there were some inexplicable delays on the bank’s part, but the daughter had not acted to her detriment by reason of those delays. The judge did, however, criticise the bank because interest had continued to accrue on the account during the years when the bank had been less than active in progressing matters.

The judge said that his hands were tied by the established principle that “where the Statute of Limitations, 1957, provides for a relevant limitation period, there is no scope for the application of the equitable doctrine of Laches.”

The court, therefore, allowed the banks possession case to proceed but held that the bank’s claim for interest could perhaps be challenged by the defendant using the Statute of Limitations.

Bank of Ireland Mortgage Bank v Teresa Gillespie [2024] IEHC 41

WITHOUT PREJUDICE What does this mean in correspondence?

Tue, 30 Apr 2024 17:57:05 GMT

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.

LITIGATION On Death do Legal Actions Survive?

Tue, 30 Apr 2024 17:54:12 GMT

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.

PERSONAL INJURIES: Either party can ask for additional medical reports and examinations without being accused of "expert shopping".

Tue, 30 Apr 2024 17:51:49 GMT

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.

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

Wed, 17 Apr 2024 17:50:16 GMT

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 17:47:38 GMT

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.

PERSONAL INJURIES: New Guidelines Applied by the High Court When a Garda Motorbike Rider Suffered Multiple Injuries in a Road Traffic Accident

Sun, 31 Mar 2024 08:24:07 GMT

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.

MEDICAL NEGLIGENCE Proceedings Ongoing for Eight Years, without any Expert Report, Dismissed by Court of Appeal.

Sun, 31 Mar 2024 08:22:19 GMT

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

INTELLECTUAL PROPERTY Royalty Payments for Music Played at Funerals

Wed, 27 Mar 2024 10:55:50 GMT

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.

PERSONAL INJURY Workplace Injury

Wed, 27 Mar 2024 10:53:47 GMT

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.

MORTGAGE PROCEEDINGS: Vulture Fund Loses its Case Over Delays in Bringing Their Claim to Court.

Mon, 11 Mar 2024 22:44:18 GMT

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LANDLORD & TENANT Restrictive Covenants

Mon, 11 Mar 2024 22:42:23 GMT

The landlord of the Barrow Valley Retail Park had two leases with its anchor tenant, Dunnes Stores. In each of the two leases there was a restrictive covenant from the landlord in favour of Dunnes Stores which was binding on every lease the landlord entered into within the retail park. These covenants, in effect, prevented any shop from selling any goods that Dunnes Stores sold in their anchor store.

In November 2020, the manager of the Dunnes Stores visited shop unit No. 4 trading under the Mr. Price name and found an array of products for sale which he considered to be ‘food, food products and groceries’ contrary to the restrictive covenants that each of the Retail Park lessees had signed up to.

In the initial High Court case, Dunnes Stores applied for an injunction. The injunction was sought to prevent the shop occupying Unit 4 from selling products in breach of the covenants and the court granted the injunction. The appellants had claimed that the enforcement of the restrictive covenants would damage their trade to the extent that they would not have a viable business in the shopping center. The High Court judge found no evidence to support this. This decision was appealed to the Appeal Court.

The Appeal Court pointed out that the restrictive covenants in the leases were not of a general nature nor vague but in fact, listed out the products which were the subject matter of the covenants.

The Court of Appeal dismissed the appeal though it allowed the appeal on a lesser matter where there would be a declaration in the covenant to include the wording ‘provided that such items are non-durable’ for the sake of clarity. As the appeal was dismissed in most parts, the court ordered that 90% of the costs be awarded to Dunnes Stores.

Dunnes Stores Unlimited Company & Anor v. Dafora Unlimited & Others [2024] IECA 37.

Apartment Purchases: Some Apartment Complexes may have Latent Fire Safety Issues.

Wed, 28 Feb 2024 10:49:40 GMT

It’s important before buying an apartment to investigate how well the complex is run and how much of a contingency fund is in place to pay for repairs to the roof or other areas requiring maintenance.

It is doubly important these days to make these enquiries, or more usually for your solicitor to make them on your behalf, as many apartment complexes have in recent years been bedevilled by shortcomings in fire safety provisions which cost a substantial amount to put right.

The problem arose due to builders cutting corners and simply not complying with fire safety protocols at the time these complexes were being constructed and this despite a Fire Safety Certificate being issued.

The local authority signed off on the Fire Certificate application / drawings, but the build was not carried out in accordance with the drawings / specification filed with the authority. In many cases the Guarantees may have expired, or the developer become insolvent, and all the costs of repair are left with the individual owners of the apartments.

Your solicitor will advise you to engage an architect or surveyor to inspect the apartment and complex but as all work is covered over at this stage, it is usually impossible to find any fire safety problems.

So, any purchaser of an older apartment these days should be aware of these fire issues and will be advised by his solicitor:

To ask an adjoining owner if there are any current fire safety or remedial issues.
To engage an architect or surveyor to inspect the apartment and, if necessary, to liaise with the local authority or fire officer as to any concerns
Whether or not the management company has adequate bank reserves to deal with any such fire or other emergencies
Most importantly, when replies to the pre- contract queries are received, to advise whether the vendor/ management company are aware of any concerns or issues regarding fire safety / defective workmanship which could lead to a demand for payment from the management reserve funds.

An inadequate reserve fund or a non-committal response to pre-contract queries is a red flag and any purchaser should be prepared to walk away in such a case and will be so advised by his solicitor.

FAMILY LAW: A Divorce Decree

Wed, 28 Feb 2024 10:48:25 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.

PERSONAL INJURY Bicycle Accidents

Wed, 28 Feb 2024 10:46:45 GMT

If involved in a bicycle accident, which may result in litigation, there are several actions that you can take that will greatly assist. The common injuries to cyclists are:

(i) Head and facial injuries. (ii) Dental injuries (iii) bone fractures (iv) soft tissue injuries (v) cuts, bruises, and scarring. The latter might be permanent.

Cause of Accident

Establishing this is important as the cause may not necessarily be the other road user in which case the cyclist has no claim. However, if others were injured or property damaged, the cyclist might well be the person sued. Accidents between two cyclists are not uncommon.

Similar to accidents between motor vehicles, it is important to obtain both the contact information of the other party or parties as well as details of their bike or car. Taking pictures is especially useful. Take pictures of the road scene, road markings, the positions of the bike and other vehicle involved. Make a note of the ground conditions (i.e. wet or dry). Note the time of the accident and whether there was good light.

It is always useful to report the accident to An Garda Siochana, even if it is a minor accident, as a record of it is important. So, if it is a minor accident, the gardai may not attend so when reporting the accident give them your notes. If the accident is serious and is attended by the gardai, the garda will take statements from those involved and from any witnesses.

As soon as possible have your medical condition examined. For accidents where the parties are not taken to hospital, it is important that you visit your GP as soon as possible. Tell them the details of the accident and any injury or pain you are experiencing which can be traced back to the accident.

Preparing Litigation

Your solicitor will need all the records on the accident, so that will be: (i) your record of it (ii) your GP or hospital record (iii) photographs you will have taken at the accident scene iv Any garda report if available. Make sure if you receive a hospital report that it contains the name of the doctor who examined you on the day of the accident.

Expenses incurred.

All expenses you incurred arising from the accident should be given to your solicitor so make sure you have all these in receipts, as only documented expenses can be recovered. These can include cost of GP visits, medication, any medical cost directly arising from the accident and reasonable transport costs.

Damage or loss of bike.

Included in your claim will be the cost of bike replacement if, because of the accident, it is beyond repair. However, if it is repairable then this is a legitimate cost.

Loss of Earnings

If you have had to take time off work or if self-employed and cannot work, then this will be included in your claim. Evidence will have to be shown of loss of earnings.

Personal Injury

This would be your main claim if injured by the accident. This involves actual injury caused by the accident, pain and suffering and long term affects from the injuries. This will be established by the records kept at the scene of the accident and receipts evidencing all medical procedures, operations, physiotherapy, walking aids, after care requirements etc.

Time Limits

This is important. Delay could deny your action. Legislation called The Statute of Limitations requires personal injury actions to be taken within two years of the date of the accident. There are a few exceptions to this rule, e.g. for children, the limitation period does not start until the child reaches the age of 18.

Early Action

Thanks

Contact your solicitor at an early stage if you decide to sue for personal injuries arising from a bicycle accident.

CONVEYANCING What is Involved.

Wed, 31 Jan 2024 13:05:46 GMT

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.

MEDICAL NEGLIGENCE Failure to Produce Expert Report Defeats Action

Wed, 31 Jan 2024 13:04:39 GMT

The plaintiff had a staple removed from her right tibia in December 2013 as she had been suffering from pain and discomfort in trying to align her lower leg. She had claimed that the infection and related symptoms that she suffered in the period from November 2011 to the date of the surgery were attributable to the defendant’s failure to identify the staple as the cause of her symptoms and to remove it at an earlier date. Solicitors acting for her initially had the incorrect defendant but delayed for over a year after being so informed by the defendant’s solicitors.

The defendant’s notice for particulars and notice requiring further information went completely ignored by the plaintiff’s solicitors and accordingly, the defendant issued a motion to dismiss the proceedings for want of prosecution on 17 December 2021. However, by this time the plaintiff had appointed new solicitors who served a notice of change of solicitor on 14 March 2022.

An affidavit sworn by the plaintiff’s new solicitor almost seven years after the initiation of the proceedings revealed that the original ‘childhood’ surgery was carried out in the year 2000, and that the plaintiff’s previous solicitors had not obtained any expert report supporting her allegations of clinical negligence by the time the matter came before the High Court.

The High Court judge was critical of the plaintiff’s original solicitors for failing to obtain a medical opinion to ascertain that there are reasonable grounds for issuing proceedings.

The High Court found that at least moderate prejudice, sufficient to dismiss the case under the Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459 principles had arisen, and that the O’Domhnaill v Merrick [1984] IR 151 test was met in that there was a serious risk that a fair trial would no longer be possible and dismissed the case. The plaintiff appealed.

The Court of Appeal found that the lack of information contained in the originating summons was ‘immediately striking’ and stated it was ‘entirely silent as to when the alleged failure is said to have occurred, where it occurred and who was responsible for that alleged failure”.
The court observed, disapprovingly, of the absence of an expert medical report and stated its absence amounted to an abuse of process. The Court of Appeal further observed. ‘It really beggars’ belief that after five years of inactivity, the first firm, when threatened with a motion to dismiss, did not even reply… the plaintiff’s current firm came on record in March 2022 having been instructed the previous month. At this juncture, the file was in crisis and required urgent attention.
The court found there was a litany of errors by the plaintiff which prevented the court from attaching any merit to the plaintiff’s case and accordingly upheld the High Court decision and dismissed the appeal.

Aine O’Neill v Lorcan Birthisle [2024] IECA 17

PERSONAL INJURIES Slip on Wet Dance Floor in Hotel

Wed, 31 Jan 2024 13:03:19 GMT

A hotel lost an appeal against an award of €91,000 made against them following a claim by a wedding guest who slipped and sustained injuries on their wet dance floor.

In May 2015, the respondent was a guest at a wedding in a hotel in Charleville, Co. Cork when she slipped and fractured a heel dancing on the dance floor. The respondent claimed that she was not under the influence of alcohol at the time of her fall and that she had changed from her high heels’ shoes into flip flops. She claimed that the dance floor, unknown to her, was wet which caused her to slip. She further claimed that no staff member cleared up spills on the floor and there was a shortage of hotel staff on the night.

The hotel claimed that the floor was in fact dry, that the respondent was intoxicated and was wearing high heels at the time of the accident. While the area of the accident was covered by CCTV, the hotel had not retained footage as it found it to be ‘grainy.’

The action commenced in the High Court which found that the injured lady’s action was grounded upon the duty owed to her pursuant to the Occupiers Liability Act 1995 and s.4 of the Hotel Proprietors Act 1963 which provides:
‘’Where a person is received as a guest at a hotel, whether or not under special contract, the proprietor of the hotel is under a duty to take reasonable care of the person of the guest and to ensure that, for the purpose of personal use by the guest, the premises are as safe as reasonable care and skill can make them.”
The High Court judge was not satisfied with the witness for the hotel claiming the plaintiff was intoxicated as the witness had based it on the behaviour of people at similar events. Neither was the judge satisfied with the same witness's account that the dance floor was not wet because evidence suggested the hotel was not monitoring it nor had a system in place for monitoring it.

Regarding damages, the injured plaintiff/respondent submitted two medical reports while the hotel offered no medical evidence.
The injured plaintiff/respondent required surgery on her foot and was out of work for 14 weeks. She required physiotherapy and walked with a limp. The parties agreed that the injury fell with what is called Category 5 of the scale of damages and the High Court awarded her €91,000 in damages.

The hotel appealed this to the Court of Appeal. The Appeal court was surprised at the manner in which the High Court judge reasoned his finding of negligence, but the court did not disturb it. The Court of Appeal did comment on whether the High Court judge had considered contributory negligence by the plaintiff. On balance, while the High Court judge did not specifically mention contributory negligence, it believed that the judge had taken that into consideration in his decision.
The hotel submitted in its appeal that the award of €91,000 was disproportionate to the injury caused but the Court of Appeal was reluctant to change that as it had been ruled in Rossiter v Dun Laoghaire County Council [2001] 3 IR 578 that ‘’ an appellate court must not interfere with an award unless satisfied that it was so disproportionate as to amount to an error of law’’.

Therefore, the Court of Appeal was reluctant to alter the award made in the High Court and dismissed the appeal of the hotel.

Sweeney v Atlantic Troy Limited [2023] IECA 268.

PRACTICE Statute of Limitations: 12-year limitation period applies in respect of execution of Circuit Court decrees and judgments.

Wed, 17 Jan 2024 13:00:11 GMT

On 10 November 2008, the plaintiff, Pepper Finance Corporation, applied to the County Registrar of Kildare for an order for possession over the defendant’s property in County Kildare. The Registrar granted the application and an execution order, in the form of an order of possession, was issued on 26 March 2010.

From time to time the execution order was renewed by the plaintiff and on 30 September 2022, the plaintiff issued a motion for an order granting it leave to issue execution pursuant to Order 36, rule nine of the Circuit Court Rules, and also seeking to renew the execution order. The Circuit Court refused the motion on the grounds that more than 12 years had passed since the date of the decree or judgment, which the plaintiff now sought to be enforced. The plaintiff appealed the Circuit Court’s decision to the High Court.

The High Court judge considered the Superior Court Rules, Order 36, Rule 9 noting that: ‘’the Circuit Court Rules anticipate that a decree or judgment will ordinarily be executed within six years. This is subject to an outer limit of twelve years. If it is sought to execute between years six and twelve, it is necessary to apply for leave to issue execution.”

The Judge further cited the Rules as:

“It is also necessary to apply for leave to issue execution in circumstances where, at any time during the period of twelve years, any change has taken place, by death, assignment or otherwise, in the parties entitled or liable to execution. The original decree or judgment may be amended so as to give effect to any order made by the court on the application.”

The judge citing Rule 13 under the same Order said the 12-year period applies equally to an application to renew an execution order and citing the Rule: ‘‘an execution order may only be renewed ‘during the currency of the decree or judgment’’ stating that this is subject to the proviso that the decree or judgement be in full force or effect for the period for which the execution order is so renewed.

The plaintiff argued that Order 36 should be read in conjunction with Order 67, rule six which allows the court to enlarge or abridge the time for doing any act or taking any proceeding. Not accepting this submission, the judge said Order 36 is ‘’expressed as a statement of principle. It is not defined by reference to the ‘doing of any act’ by a party and is thus not affected by Order 67.”

The judge declined the interpretation of Order 36 by the plaintiff citing that the Order is ‘’incapable of accommodating an interpretation which allows an execution order to be issued or renewed after the expiration of twelve years”.

The plaintiff submitted that the 12-year limit only applied to an extension order and did not apply in the current case. They also sought to rely on Courts (Supplemental Provisions) Act 1961, section 22(6) stating the Circuit Court exercises a jurisdiction equivalent to the High Court in all respects, including in relation to the execution of judgments and orders but the judge in the appeal ruled against this submission stating: ‘’The section does not go further and prescribe that the procedural requirements in relation to the execution of judgments and orders must be equivalent.”

Finally, the plaintiff submitted that the imposition of a 12-year limit was ultra vires the power of the Circuit Court, but the trial judge said he was exercising the jurisdiction of the High Court as the case was on appeal to the High Court.

In giving judgment, the judge ruled that having determined that the 12-year period from the judgment dated 10 November 2008 had expired, Mr Justice Simons refused the plaintiff’s application for leave to execute.

Pepper Finance Corporation (Ireland) DAC v Doyle [2023] IEHC 662.

COMMERCIAL Trade Secrets & their Enforceability in Irish Law

Wed, 17 Jan 2024 12:44:42 GMT

Businesses that invest time and money in their business practices do not want to lose these when an employee leaves and joins a trade competitor. These practices are commonly referred to as trade secrets.

What is a trade secret?

It is a way of conducting their business that is unique to them and which gives them a competitive advantage over their competitors. This ‘know how’ does not have legal protections in the way trademarks or patents do. However, there are still ways business owners can seek protection from the misappropriation of their trade secrets. If this set of events happens to your business be sure to contact your solicitor before the former employee’s action causes damage to your business.

Steps to be taken to protect trade secrets.

a) Employment Contract: ask your solicitor to draft for inclusion in your employee contracts an air-tight clause forbidding the employee from disclosing trade secrets on leaving their employment. Also, be sure to define what the trade secrets are.

b) Decide what employees have access to the company’s trade secrets.

c) Put in place safeguards so that other employees cannot access this confidential information.

Regulations

The European Union (Protection of Trade Secrets) Regulations 2018 has a mechanism for protecting trade secrets within the EU and defines a trade secret as:

Is secret, that is, being not generally known.
Has commercial value because it is secret, and
The person lawfully in control of the information has taken reasonable steps to keep it secret.

This Directive should assist business owners greatly in seeking to keep their trade secrets from coming into the possession of its competitors. The protection is not absolute but prior to the Directive coming into force, taking legal steps for breaching a company's secrets was harder to establish.

Breach of confidence – Common Law remedy

In addition to the EU Directive there is an old Common Law remedy for seeking protection for breach of confidential information. This relies on an employee’s duty of confidence to their employer. Ideally this should be covered with the contract of employment under a confidentiality clause but while a Common Law case can still be made in the absence of a formal confidentiality agreement, its absence makes it harder for the employer to prove its case.

In order to establish an action for breach of confidence under the Common Law, three conditions must be fulfilled:

a) The information was secret to the business owner.

b) Access to it by employees who were obliged to keep it within the company and not disclose it to non-employees.

c) That the employee wrongfully communicated it

An acceptable defence to such an action would be to claim and prove that the information was already in the public domain.

An aggrieved business owner concerned that a competitor has acquired their trade secret can seek an injunction to prevent its use until a full hearing of the action.

PERSONAL INJURY: Big award for woman treated mistakenly for cancer.

Wed, 17 Jan 2024 12:37:21 GMT

Mistakes can occur in medicine as in any profession. Indeed, they are sometimes regarded as learning tools. Mistakes can be made anywhere on a patient’s journey even at the early diagnosis stage. A recent High Court case underlined how badly things can go for a patient who is treated with the wrong medication and follow up chemotherapy but whose real condition was left unattended.

A young woman presented to the Bon Secours hospital in Cork 2005 with severe stomach pain. She was misdiagnosed with T cell Lymphona cancer while, in fact, she had a much more benign self-limiting condition called Kikuchi disease which was not a cancer condition at all. Her senior counsel said the two diagnoses were “at the opposite ends of the spectrum.”

As the woman was diagnosed, wrongly it emerged, with a serious cancer condition, she was required to undergo a number of tests, X-rays, scans, and biopsies to include chemotherapy sessions which are unusually debilitating, and she suffered from stress, anxiety, and considerable upset as a result. Clearly, as she was being treated for a serious cancer condition, she was in fear of losing her life even though she was a teenager at the time of treatment.

During her stay in hospital, which amounted to seven months at one stage, she had to take thirty-two tablets on one particular day and endure six courses of chemotherapy treatment.

She was advised, over a year later in December 2006, that she never actually had any cancer condition but suffered from a totally unrelated virus. She had missed out on her leaving certificate course during her stay in the cancer ward and that had compromised her career prospects apart from causing her much unnecessary anxiety and stress.

She sued her consultant histopathologist, Eoin O’ Murchu, and the Bon Secours Hospital in Cork. She was awarded €1.9 million in court for damages and while the case was settled without an admission of liability, her family were with her to hear the consultant’s apology read out in open court.

Aoife O’ Donovan v Eoin O’ Murchu & Bon Secours Hospital [2023] 13 December 2023 Irish Times.

The Law

Wed, 20 Dec 2023 12:34:27 GMT

The Succession Act, 1965 deals with rights under probate and in this case, section 177. The judge in citing the law said that for a Will to be valid it must be made by a person who is: ’of sound disposing mind’ . In citing a previous High Court case the judge quoted that ‘ the testator should know and approve the contents of the will and, at the time of execution of the will, be of sound mind, memory and understanding ”.

In looking further into case law from 1870, on similar probate issues, the judge restated the principles established in that old case, namely:

1. The testator must understand that she is executing a Will and that this document will dispose of her estate on death.

2. The testator must know the nature and extent of her estate.

3. The testator must be able to call to mind the persons who might be expected to benefit from her estate and decide whether or not to benefit them.

Ms. Justice Roberts found that despite her underlying depression and dementia, the deceased had testamentary capacity in July 2012 and accordingly the Will was admitted to Probate.

So, in adopting these principles the judge ruled that the deceased in this case did have the testamentary capacity in July 2012 despite her underlying depression and dementia and the Will was allowed to proceed to probate.

In Re Margaret Stella O’ Reilly Deceased [2022] IEHC 663.

ROAD TRAFFIC ACCIDENTS A Guide to What to Do if Involved.

Tue, 19 Dec 2023 12:28:53 GMT

It is very important for any possible litigation following a road traffic accident that at the time of the accident you gather all the information that will assist with your case in court.

Obtain the name, address details and insurer of the driver of the other vehicle(s) and the name of the Garda and the Garda station who attended the scene. The same details should also be taken of any witnesses.

Normally, the Garda would check to see if the tax and insurance disks are current but do not rely on the Garda to check this, do it yourself.

Take photographs of the scene of the accident and it would be helpful, when convenient, if you did a drawing of the scene of the accident.

Note the time of the accident and if at night describe the lighting, signs, and markings on the road.

Ensure as far as possible that the other driver does not leave the scene of the accident, which is an offence in itself.

If there are no injuries and the damage not that serious, still report the accident to the Gardai.

If you do incur an injury, then visit your doctor and keep note of the medical costs.

When discussing the accident with the other driver(s) be sure not to admit any liability, especially in front of witnesses.

Make sure you have all the information you need before you leave the accident site.

If the Gardai has been called, remain at the crash until they arrive.

Gathering the information, you need will save a lot of time later if the accident goes to court. If that is the case, your solicitor will need all this information together with the medical history arising from the accident.

Early consultation with your solicitor is advised if you are considering suing the driver for the wrong or indeed if you think you might be sued by the other party.

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 their 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.

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

Tue, 19 Dec 2023 12:26:47 GMT

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 Appeal 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 into 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.

WILLS/PROBATE Testamentary Capacity

Tue, 12 Dec 2023 12:31:58 GMT

If a Will is being contested, a common claim is that the deceased person making the Will lacked the capacity at the time to make the Will. A recent High Court case considered this issue.

The deceased testator was in her 80s and lived in a nursing home. One of the causes of her death on her death certificate was ‘advanced dementia’ and this was the basis of the claim that the testator was not of sound mind to understand the making of her will. The testator died six years after the making of her Will.

In this case the Probate Office sought an Affidavit of Testamentary Capacity from the doctor who had treated the deceased at the time she made her Will in July 2012. The medical evidence showed that the deceased had probably suffered a stroke in June 2012 though that had not been confirmed.

In a cognitive assessment, which was conducted on 11 July 2012 which was one week after executing her Will, the deceased had only scored 3/10. The deceased's GP had advised the deceased's solicitor that over the years she had noticed the deceased's mental state could alter. Neither the GP nor a consultant in old age psychiatry could provide the certificate requested, because they had not been requested to at the time of making the Will.

The deceased's medical records were produced to the court. These were mixed but did show that at the time in 2012 she was ‘brighter’ and ‘in good form’. There were no notes in her records to disclose the deceased was confused or unable to understand what she was doing.

The court considered evidence from her solicitor and friends who stated that the deceased had made her will in 2008 and in 2012 she was amending it.

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

Tue, 12 Dec 2023 12:22:35 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 also 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. and

PERSONAL INJURIES Sporting Activities

Wed, 29 Nov 2023 18:36:50 GMT

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 involved, 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.

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

Wed, 29 Nov 2023 18:34:17 GMT

he 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 Houses 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.

PROPERTY; TORT My neighbour is building an extension which I fear will block off my view and my light. It might also affect the privacy of my back garden – is there anything I can do?

Fri, 10 Nov 2023 18:51:55 GMT

1. Right to a View:
You may have a super view of the mountains or the sea from your window or balcony, but the legal position is that property owners in Ireland have no inherent rights to a view. If the extension or new house being built is actually higher than allowed under the planning
approval, that is another matter, and you could contact the enforcement section of the planning authority about that.

2. Right to Privacy:
The individual or family’s right to privacy is one of the personal rights guaranteed under the Constitution and the right to privacy has been frequently championed by Irish Judges in many cases dating back to the 1940s.

In a more local situation such as your back garden being overlooked, what are your rights? If the extension right beside you need planning approval, you can object to the plans on grounds the build will displace and ruin your existing privacy. The planning authority will usually be slow to allow any diminution of your privacy and will insist, for example, on velux windows being installed as opposed to dormer windows in your neighbour’s attic conversion. They will never allow a new extension next door to have windows that look directly down into your living areas particularly bedrooms and bathrooms.

If your neighbour’s new build is exempt from planning permission but you still feel encroaches on or affects your privacy, you can bring your complaints, in the absence of a neighbourly agreement, to court and apply for an injunction to stop him but this will be costly unless your privacy is seriously affected.

3. Right to Light:
An extension to a neighbouring property can often lead to disputes between neighbours if the new building affects or seriously reduces the natural light to the house next door.

Although there is no automatic right to light, if the new extension is going to substantially reduce the amount of light currently enjoyed by the neighbours, they have the right to oppose and object to the build or in some cases go to court typically to seek an injunction to stop the build.

Traditionally, anyone claiming the right to light had to show that they enjoyed it for a period of 20 years but nowadays the courts are more flexible. Anyone who feels a neighbour’s extension will impact on the light coming into their own house can oppose the planning permission.

Two cases currently winding their way through the High Court in Ireland could have far reaching consequences for planning applications.
The first case concerns the extension of a residential building in Dublin 4 which neighbours claim will impact on their right to light and reduce their Building Energy Rating [BER]. They claim the extension will force them to use more heating and artificial light.

The second is a large apartment development in the Dublin 8 area which neighbours claim will completely overshadow existing low-rise homes and drastically reduce the amount of light they have enjoyed for several years.

Anyone who fears a neighbouring extension will block or reduce their light should first speak to the neighbour. Very often plans can be altered slightly allowing both parties can find a mutably agreeable solution and avoid an unpleasant and costly dispute. However, if no

agreement is reached the next step is to object to the planning application in the local council. This must be done within five weeks of the date the council received the application for planning and the timelines are strict. If you are outside the five weeks, the objection will not be accepted, and you lose the right to appeal to An Bord Pleanala if the council grants permission.

Anyone considering building an extension should take account of the neighbouring property and the potential to reduce or affect their light when the plans are being drawn up.

Although most architects are aware of potential problems, it is advisable to raise it at the early stages to avoid trouble down the road.

FAMILY LAW What do I do if my partner takes my child out of Ireland?

Fri, 10 Nov 2023 18:43:46 GMT

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.

PERSONAL INJURIES Pothole Injury on County Council Property

Tue, 17 Oct 2023 17:31:51 GMT

A delivery man was making a delivery to a customer’s house. He parked his van close to the wall of the customer’s house and went around the other side to get the parcel. On doing so, he took a step backwards and his right foot went into a pothole on the road. The pothole was about eight inches in depth and about two feet wide. He stumbled but did not fall.

The plaintiff said he experienced immediate pain to his right knee, and he was unable to continue working that day. The pain continued and he was not able to partake in activities. After enduring the pain for a while, he had an MRI scan done which showed a significant injury to his knee.

Medical evidence showed he had post-exertion pain in the anterior aspect of his right knee. Initially the doctor recommended injections to deal with the pain but later changed that opinion and suggested instead the plaintiff undergo arthroscopy surgery.

An engineer for the plaintiff said a number of repairs had been done to the pothole but these were deficient to fix the problem. It was conceded that the pothole would be visible to pedestrians but not a person exiting a car.

The court was satisfied that the responsibility for the road lay with the County Council and the repairs to the pothole by the council were clearly insufficient. It followed therefore that the council, or its agents were negligent in failing to carry out proper repairs to the pothole.

Having decided on the party responsible for the accident, the court then considered the amount of damages that the plaintiff was entitled to.
The MRI evidence also established that the plaintiff had suffered a tear of the lateral meniscus in his knee. The court was satisfied with the plaintiff consultant’s reasoning for changing his opinion on the necessity for surgery. The court rejected the suggestion, made in cross-examination, that the consultant had recommended surgery to “puff up” the plaintiff’s case.

Having considered all the evidence, the court awarded €45,000 for pain and suffering to date with €15,000 for future pain and suffering. The court also awarded €5,000 for the costs of the procedure and €4,000 for the plaintiff’s inability to work for four weeks post-surgery amounting to a total of €69,000.

Hickey v. Tipperary County Council [2023] IEHC 362.

PERSONAL INJURIES: Ryanair flight attendant awarded €94k for injuries in fall on de-icing fluid on floor of plane.

Tue, 17 Oct 2023 17:29:48 GMT

A Ryanair flight attendant was awarded € 94k compensation recently by the Court of Appeal in a case which Ryanair ferociously defended. The attendant was on an early morning February flight when the plane had to be de-iced before departure. The plane beside it was also sprayed with de-icing fluid around the same time.
The flight attendant slipped and fell on a vinyl surface, severely hurting and fracturing her arm. She sued Ryanair claiming she had slipped on de-icing fluid brought on to the plane by staff and passengers.

At the High Court, it was said that three other similar incidents had occurred in recent months. Ryanair had also alerted staff, the day after the accident, to be careful about de-icing fluid tracked on to the plane by staff and passengers. An expert for the plaintiff said when it fully dried out, de-icing fluid left a greasy film on the surface.

The court found for the plaintiff and awarded her €94k in general and special damages. The court found it more likely that the fluid left a greasy film on surfaces and passengers were likely to step on it and track it on to the plane. Ryanair should have warned staff about the de-icing procedures and its consequences before the plane prepared to take off. Relying on a similar warning from the previous year was simply not good enough.

Ryanair appealed the decision to the Court of Appeal, but the appeal judge found the presence of the fluid was a finding of fact supported by credible evidence and the court would not disturb this. The manufacturers of the fluid had themselves warned about the likelihood of greasy surfaces and, in any event, there was clear evidence that the fluid was a hazard in three other incidents.

The appeal was dismissed and the plaintiff’s award of € 94k was upheld.
Nangle v Ryanair DAC [2023] IECA 118.

LANDLORD & TENANT: Residential Tenancy Tribunal incorrectly allowed eviction of tenant for her anti-social behaviour although she was over in UK.

Tue, 17 Oct 2023 17:28:04 GMT

A recent High Court case found that a tenant can only be evicted for anti-social behaviour that he/ she is accused of allowing on or near the premises if he/ she has actual or constructive knowledge of the behaviour the subject of complaints.

In this particular case, the tenant was in the UK for some months and asked her parents to mind her young son while she was away. A row broke out between the landlord’s son and her own older son. Following that altercation, the tenant’s older son and about twenty others went to the landlord’s house, which was in the same estate and caused damage to his home and van.

The landlord immediately issued a Notice of Termination (formerly Notice to Quit) on the tenant based on the anti- social behaviour carried out at the instance of her son.

The Residential Tenancies Act 2004 obliges all tenants not to behave themselves in any anti-social way within the premises but also requires the tenant not to allow any other occupiers or visitors to behave in an anti-social manner.

The Residential Tenancies Tribunal (The Tribunal) easily found that the group attack on the landlord’s house, led by her son, was an example of anti- social behaviour. But the tenant herself was away in the UK and was unaware of her son’s behaviour that night. Despite that, the Tribunal upheld her eviction as it found she had allowed the anti- social behaviour because her parents, who had been tasked with minding her son, had done nothing to stop the anti-social behaviour from being carried out.
The decision was appealed to the High Court who disagreed with the Tribunal finding. It found the interpretation of “allow” to be too narrow and therefore unfair. How could the tenant have allowed certain behaviour to occur when she knew nothing about it?

The court found that a person only “allows” anti- social behaviour to occur when he/she has actual or constructive knowledge of the behaviour carried out by those other parties. Finding out later about the bad behaviour carried out, even if on her behalf, will not mean she allowed such behaviour.
The court found there was nothing in any of the Tribunal’s findings to indicate that the tenant could reasonably have anticipated the trouble or taken steps to prevent this one-off incident of anti-social behaviour from happening.

The court allowed the appeal and cancelled the Determination Order made by the Tribunal.

Iyaba v Residential Tenancies Tribunal [2023] IEHC 491.

ENDURING POWERS of ATTORNEY Recent important changes

Tue, 17 Oct 2023 17:26:09 GMT

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.

PERSONAL INJURIES: Plaintiff allowed to renew and serve summons despite failure to serve by her solicitor

Sun, 17 Sep 2023 14:26:49 GMT

Most people will know that you must issue a summons in Personal Injury cases within a few years of an accident. The time limit is two years, and this is generally enforced by the courts.

However, even if a plaintiff’s solicitor issues the necessary summons, it must be served on the defendant within a year of issue or else it lapses. It is possible to petition the court where you are out of time to serve the summons, but a strong case has to be made for its renewal and mere inadvertence on the part of a plaintiff or his solicitor will not do. You can take it that the defendant’s insurance company will object to any extra time given for serving the summons.

In a recent case, the judge took a benign view of a solicitor’s failure to serve the summons and allowed its renewal in the particular circumstances that arose. The rules allow a court to grant extra time to a plaintiff but only in “special circumstances” which is not defined but left to the court’s discretion.

In a recent case where the solicitor failed to serve the summons within the time limit, he explained to the court that the solicitor handling the file had retired and a delay occurred in passing over the file to a colleague. More importantly, he added that in a small firm like his the Covid pandemic had a serious effect on the practice with solicitors and staff absent from the office for months at a time. The deadline had expired but he had applied to the court for an extension of time within ten days of the expiry date.

The court noted the promptness in the solicitor bringing the renewal application and the difficulties imposed on the firm by the Covid pandemic which clearly was an unprecedented event. It appeared that approximately 133 staff days had been lost due to illness with a further 85 days lost in 2022.

The court stated that a delay of ten days would not prejudice the defendant and this, coupled with the reasons given, all amounted to special circumstances.

Therefore, the court allowed the plaintiff solicitors to renew and serve the summons and the defendant’s application to have the summons set aside was dismissed.

Murphy v Depuy Ireland Unlimited company [2023] IEHC 220.

CONTRACT: Irish Courts have jurisdiction to hear claim for injuries sustained in Sri Lanka where defendant was UK based travel company

Sun, 17 Sep 2023 14:25:40 GMT

The plaintiff here sued for negligence and breach of consumer contract being her contract with the travel company. That company tried to claim that the Irish courts had no jurisdiction to hear her case, but the Irish court held that the EU special rules on jurisdiction in these type of consumer contracts did indeed confer jurisdiction on the Irish courts.

The plaintiff was an Irish woman who paid to go on a cycling holiday arranged by a UK based travel company. She paid for her own flights and joined the cycling group in Sri Lanka. She had a bad accident on the trip and sued the UK company in Ireland in 2020 claiming the defendant had breached the consumer contract which led to her suffering injuries.

The UK company objected to any hearing being held in Ireland and claimed the Irish courts lacked jurisdiction. The main issue between the parties was whether the EU rules as to jurisdiction could be applied to the dispute.

These rules set out that an action under a consumer contract could be brought in the jurisdiction in which the consumer was domiciled. In addition, it stated that a “consumer contract” also covered any agreements where a party carried out commercial activity in the member state of the consumer or where that party directs such activities to that member state.

The UK company argued its internet ads did not especially target Ireland and it had not in any way directed its business to Irish consumers.

The judge took a different view. He held there were quite a few factors suggesting the UK defendant had directed its activities to the Irish market.

Firstly , the tour took place in Sri Lanka not the UK. It only began when the plaintiff, who was delayed, joined the rest of the cyclists in Sri Lanka.

Secondly , the UK travel company made arrangements to pick up the plaintiff from the airport, thereby assisting her in travelling from Ireland to join up with the tour.

Thirdly , the defendant’s website displayed testimonials from consumers including an Irish person’s comments.

Fourthly, their website allowed for Euro payments which showed the defendant was directing its services to a market other than the UK.

Finally , the court noted the plaintiff was required by the defendant to create an online account prior to buying her ticket. The online form included city and country of residence thereby putting the defendant on notice of the plaintiff’s residence when it accepted her booking.

The court rejected the UK defendant’s application to dismiss the Irish proceedings and held that the Irish courts did have jurisdiction to hear the claim based on the rules regarding consumer contracts.

Casey v Redspokes ltd t/a Redspokes Adventure Tours [2023] IEHC 297.

LANDLORD & TENANT The High Court, not the Residential Tenancies Board, (RTB) is the only forum to determine whether a valid tenancy exists or not

Mon, 07 Aug 2023 14:52:40 GMT

Since the RTB was set up nearly twenty years ago, the public have seen many disputes referred to it for determination. A lot of these have had to do with return of deposits and whether a tenant in occupation has been properly served with Notice to Quit and afforded the appropriate amount of notice.

However, a recent High Court case has now ruled that the RTB has no jurisdiction to determine, in the first place, whether a valid tenancy existed between the parties at all. It found the only proper place for deciding these issues was the High Court while other related issues can be settled by the RTB.

The plaintiffs in this case were a bank claiming possession of a house on foot of a mortgage deed where payments had gone into arrears. In the middle of High Court possession proceedings, it was revealed that one of the defendants had granted a lease of the property for seven years to the other defendant and this of course would have adversely affected the plaintiff’s repossession application.

The lease was signed but not registered with the RTB although it appeared various payments alleged to be rental had in fact been made to the bank. The plaintiffs considered the alleged tenancy to be invalid as the consent of the bank under the mortgage deed had never been obtained.

The defendants applied to the court to adjourn the proceedings against them until such time as the RTB had decided on several matters referred to it including whether the bank had served a valid Notice to Quit. More importantly the RTB had also effectively been asked to determine whether there was a valid tenancy between the parties at all.

The High Court judge found that the various requirements for a valid Notice to Quit only applied where there was a valid tenancy. In the present dispute, the main issue was: did a valid tenancy exist between the parties?

The jurisdiction of the RTB was limited to disputes concerning tenancies which actually existed between the parties, but it lacked jurisdiction to determine whether a valid tenancy existed in the first place. The court found that while the RTB may well have a view on whether a tenancy existed when it was investigating a dispute referred to it, it should decline to hear any case where it suspects that no valid tenancy existed. A valid tenancy is a pre-condition for referring any disputes to the RTB.

The question, therefore, whether a tenancy existed or not was outside the scope of the RTB and was properly to be determined only by the High Court.

Anderson, Pepper Finance v Fitzgerald & Another 2023 [IEHC] 309.

MEDICAL NEGLIGENCE Nervous Shock

Mon, 07 Aug 2023 14:51:14 GMT

The HSE were sued by the parents of a woman who died from cervical cancer following an alleged misdiagnosis by the HSE in the cancer screening process. The parents alleged that they had suffered nervous shock because of the breach of duty of care owed to them by the HSE.

The parents claimed that they suffered from nervous shock arising from learning in January 2014 that their daughter had cancer, that their daughter lost a pregnancy due to the cancer, that they witnessed the circumstances of her passing and ultimately learning that her death had been avoidable.

It was also claimed that there was a significant delay by the HSE in disclosing information, which was available, about the nature of the treatments which ought to have been taken to ensure their daughter’s health and survival. Finally, the parents also claimed they suffered stress from the inappropriate manner in which they had been informed by the consultant of the cause of death of their daughter.

The HSE in their defence raised two issues, which they submitted negated the plaintiffs’ claim. First, it was submitted that there was case law to state that the HSE did not owe a duty of care to the plaintiffs arising from negligent diagnoses and cited the High Court judgment of Morrissey v. Health Service Executive and Others. [2019] IEHC 268 to support this.

Second, it was said that the plaintiffs were barred from issuing proceedings because they were listed as statutory dependents in fatal injury proceedings brought by the daughter’s husband in 2018. The defendants sought to rely on section 48(2) of the Civil Liability Act 1961 which provided that “only one action for damages may be brought against the same person in respect of the death”.

The High Court in addressing the issues before the court, confined itself to the two points raised by the defendant. Regarding the Morrissey case cited by the HSE, the judge also considered another earlier High Court judgment which the plaintiffs claimed ruled out the Morrissey case which the defendants relied on.

The court held that there was a difference between the present claim and the Morrissey claim which was based on negligent care. The present plaintiffs made allegations in respect of the inappropriate manner in which the consultant revealed the cause of their daughter’s death. The court held that it would not reach a definite view on liability attaching to this particular allegation and would hear further submissions from counsel. In other words, the court left open the possibility of the plaintiffs being successful in suing under this particular heading despite the apparent roadblock of the Morrissey case.

On the section 48(2) of the Civil Liability Act 1961 point, the court held that the plaintiffs were not relying on the common law right to sue for wrongful death but were instead seeking damages for nervous shock. The plain wording of the section limiting actions in respect of death did not include nervous shock claims. As such, the court was satisfied that the plaintiffs were not barred by the 1961 Act from bringing the proceedings.

In summary, the court determined that the majority of the plaintiff’s claim for nervous shock was unfortunately undermined by the Morrisey decision, but it was open minded on their claim for inappropriate behaviour by the consultant. Considering the court’s findings, the judge determined that it would hear the parties on the consequences of the judgment.

Mitchell and Anor. v The Health Service Executive [2023] IEHC 394.

PERSONAL INJURIES Dunnes Stores worker who fell off ladder awarded €140,000 on appeal.

Mon, 07 Aug 2023 14:48:03 GMT

A recent Court of Appeal case saw a Dunnes Store worker awarded €140,000 on appeal although there were no accident witnesses, and the CCTV footage of the accident was very poor.

The plaintiff used a ladder to stack shelves and one day she fell off the ladder and suffered a serious ankle injury. Both the plaintiff and defendant’s engineers reviewed the footage but contradicted each other as to the cause of the accident. Her engineers said she had fallen off a wobbly ladder while the opposing side were insisting, she had merely tripped over the ladder and not fallen from it. An accident report form prepared by Dunnes Stores supported the tripping argument.

She sued Dunnes Stores in the High Court where the judge found her to be an honest and credible witness. The CCTV footage was unhelpful, but he found it was more likely the plaintiff’s evidence was correct. The High court found the ladder was wobbly and this was likely to have caused her to fall. Damages of €160,000 were awarded by the High Court who found in her favour.

The defendant insurers appealed to the Court of Appeal, but the judge stated that a Court of Appeal should not ordinarily interfere with any findings of fact in a lower court which were supported by credible evidence. The Court of Appeal found the plaintiff was a consistent witness in that she had always said she was on the ladder when she fell off it. Her explanations for the accident were consistent with her statements in hospital and the medical evidence supported these.

A Dunnes Store employee who had reviewed the footage had been so clear in his conclusion that she had tripped over the ladder it had baffled the trial judge. An accident report form had gone missing.

The defendants had alleged also that the trial judge had not engaged with the evidence, but the Court of Appeal judge found this was not so and in any event an appeal court should not interfere with the findings of fact in the lower court. The court found that the High Court judge was simply saying that his own interpretation of the CCTV footage he viewed was like that of the plaintiff’s expert and he was entitled to say that. He was also entitled to find that the ladder was wobbly, and this was instrumental in her fall.

The Court of Appeal reduced her award to €140,000 to align it more closely with injuries of this nature but dismissed the defendant’s appeal on liability.

Gunta Kadege v Dunnes Stores [2023] IECA 27.

PERSONAL INJURIES Workplace Accident

Mon, 07 Aug 2023 14:32:22 GMT

An information technology executive sustained dental injuries to her front teeth when she walked into double plate see-through glass doors in her former workplace. On impact the plaintiff was bleeding from the mouth, broke two teeth and fragments of them fell onto the floor. From the impact the plaintiff suffered significant shock and distress.

As a result of the accident, the plaintiff sustained fractures to her four upper front teeth and nerve damage resulting in two of them turning black and she had to have the four crowned.

The accident occurred when the plaintiff was walking to and from her car loading a computer and other items outside the defendant’s offices and she walked through the glass door which she had left open but on her final journey the door had somehow been closed, and she walked straight into it.

The defendant pointed out that the doors had previously contained plain frosted strips that had been removed prior to the accident in preparation for the installation of new frosted strips bearing the company’s logo.

A forensic engineer gave evidence saying that the only reasonable explanation for the accident was that she had not seen the closed door due to a moment of inattention on her part.

The judge commented on the risk that plain see through glass doors have even with warnings but while it is not possible to eliminate the risk, he added that it is possible to mitigate and guard against it.

The judge said despite the lack of markings on the door at the time of the accident, that the plaintiff had to bear some responsibility for the accident and measured that contributory negligence at 35%.

General damages were assessed at €17,500 together with €4,220 for dental work to date and €3,960 for future dental treatment.

Taking the plaintiff’s contributory negligence into account he awarded her a decree for €16,692 and her legal costs.

McDonald v Brightwater Solutions (I) Ltd Circuit Court (Judge Dara Hayes) 22 March 2022.

MEDICAL NEGLIGENCE Failing in Care of Newborn Baby

Fri, 28 Jul 2023 14:45:32 GMT

In a case settled in the High Court, the Coombe Hospital offered heartfelt and unreserved apologies for the failings of care it owed to the parents of a baby girl who died a day after her birth. The baby’s parents sued the hospital for nervous shock.

It was submitted to the court that the parents of the baby girl got to the root of the tragedy. They alleged in their claim against the hospital that the hospital had been negligent and breached their duty of care in the treatment afforded to the child and mother during delivery and in the neonatal care in the initial minutes of baby Ruby’s life. It was claimed that baby Ruby was caused to suffer severe and profound injuries that led to her death the following day.

Additionally, it was claimed that there was a failure to appreciate the deterioration in Ruby’s condition prior to her delivery which was allegedly attributable to a combination of maternal hypertension and a small placental abruption.

Following the birth of Ruby, it was claimed that there was a delay in intubation and a failure to provide effective ventilation to Ruby during at least three of the first four minutes of her life.

It was claimed that there was a failure to appreciate that the mother’s blood pressure had fallen significantly in the aftermath of the administration of the epidural top-up. Further, it was claimed there was a failure to proceed with the expeditious delivery of Ruby at a time that would have averted the onset or severity of her hypoxia related injuries.

When baby Ruby was born at 5.17 a.m. by forceps delivery, she was later transferred to the neonatal unit where active cooling treatment took place.

The hospital carried out a review of their case which acknowledged the pain and suffering of the parents but not any deficiencies in their daughter’s care and this had significantly exacerbated the couple’s trauma and suffering.

A letter was read to the court on behalf of the hospital offering their heartfelt and unreserved apologies for the failings of care to the parents of a baby girl who died. The letter stated that they regretted that the maternal blood pressure had not been monitored between 4.15 a.m. and 4.46 a.m. and the letter also stated that it was not their intention to add to the parents’ distress in any way in reference to the review carried out by the hospital.

As the parties reached a settlement, the court did not have to make a finding but approved the settlement.

Holland and Holland v The Coombe Hospital High Court (Coffey J) 10 May 2023.

PERSONAL INJURIES Contributory Negligence Reduced Award by 20%

partners@onlinepartners.online (Snap Websites) — Thu, 27 Jul 2023 14:37:20 GMT

The plaintiff was a schoolgirl when she was involved in a road traffic accident in April 2019. In the collision she hit her head and sustained injuries but had no recollection or memory of the accident. She had not been wearing a seat belt when the accident occurred. The plaintiff’s airbag was deployed as also was the defendant's but, in his case, he had been wearing his seat belt and did not incur any injury.

The case proceeded to an assessment of damages with a contributory negligence claim on account of the plaintiff not wearing a seat belt.

The plaintiff suffered deep abrasions to her right temple and anterior hairline. This resulted in permanent scarring to her face and caused her considerable concern in respect of her physical appearance. The plaintiff was interested in makeup and beauty therapy and, although she successfully entered a beauty therapy course, she dropped out because of her injuries. The main scar to her face was 9cm by 4cm and was noticeable at a conversational distance. She was very self-conscious about her scars and wore heavy makeup to conceal them as much as possible.

The plaintiff was also diagnosed with psychological injuries following the incident. It was considered that she had developed an adjustment disorder with depressive features at the time. She was prescribed antidepressant medication but stopped taking it after a few days.

The plaintiff continued to experience soreness on the scar on her wrist after the accident. She also complained of headaches post-accident.

In reviewing the evidence, the judge considered the contributory negligence caused by the plaintiff in her not wearing a seat belt. In a High Court case of O’Sullivan v. Ryan [2005] IEHC 18 the court measured that at between 10 and 25%. There was a dispute over whether the plaintiff hit her head off the side window which was smashed or the windscreen but on reviewing the expert evidence the court was satisfied that the injury was caused by the plaintiff hitting her head off the windscreen. The contributory negligence was assessed at 20%.

There was some conflicting evidence on which was the dominant injury and its consequent value in injury terms. The court ruled that the dominant injury was the facial scarring.

In measuring the value to be placed on the injuries the court considered a previous case involving a dancer who incurred facial scarring and who received €50,000 in damages though in that case the dancer continued in his career whereas in the case before the court, the plaintiff did not.

The court ruled that the injury be valued at €60,000 for the dominant injury and other lesser injuries at €30,000 and special damages of €17,596 amounting to a total of €107,596 reduced by 20% for contributory negligence giving a net of €86,076 damages awarded.

Power v Malone [2023] IEHC 366.

PROPERTY What is a Foreshore Licence and when would I need it?

Mon, 24 Jul 2023 14:34:00 GMT

As the entire foreshore in Ireland, effectively the land between the sea and the mainland itself, is owned by the state, it is a requirement that anyone proposing works affecting this area must apply first to the state for a foreshore licence before any such works commence. All these applications are made under the Foreshore Act 1933 as amended.

A foreshore licence is required by any person proposing to place any material or to place or erect any articles, things, structures, or works in or on foreshore or to get and take any minerals in foreshore or to use or occupy foreshore for any purpose unless exempt under other legislation or due to existing rights. The scope of activity which requires a licence is therefore very broad.

As there has been an upsurge in oil exploration activity and installation of wind turbines offshore in recent years, it is no surprise that applications for various types of foreshore licences have increased dramatically.

In considering an application for a foreshore licence, the Minister will also consider whether it is in the public interest to grant a licence.

The following are examples of developments and activities that require a foreshore licence under the Foreshore Act prior to carrying out any developments or activities on the Foreshore:

Cable installation
Dredging works
Coastal protection works.
Site investigations – geotechnical
Marine environmental surveys for wind turbines
Discharge/Outfall pipe
Seaweed harvesting
One day events e.g., beach horse racing
Commercial filming.

The list is not exhaustive as a licence is required to use or occupy foreshore for any purpose unless exempt under other legislation or due to existing rights. It should be noted that the Department has a broad remit in relation to the licensing and leasing of activities and developments under the Foreshore Act, as amended.

A foreshore lease may be required under section 2 of the Foreshore Act for a development that requires exclusive occupation of the foreshore e.g., Installation of rock armour to prevent erosion.

Developments requiring a lease would include for example: jetties, bridges, piers, marinas, and reclamation of any foreshore.

If any party is unsure whether or not a foreshore consent is required for a proposed activity or developments, he/she is advised to submit a pre-Application form to the Foreshore Unit, Department of Housing, Local Government and Heritage.

PERSONAL INJURIES Claim denied because of 'opportunism'.

Thu, 15 Jun 2023 21:09:42 GMT

A plaintiff was involved in a minor road traffic accident at the traffic lights junction on the Stillorgan Dual Carriageway near the Radisson Hotel. The plaintiff claimed that she suffered whiplash injuries when the defendant’s Land Rover car collided with the rear of her Audi car while she was stationary at the traffic lights. In the €60,000 claim, the plaintiff alleged that she had been shocked and distressed by the collision. She told the court that she had no intention of taking a case against the defendant until she was advised by her doctor that she had suffered whiplash injuries to her neck and shoulders and required medication for pain.

The defendant, in his defense, told the court that his car had rolled forward a few yards into the defendant’s car causing damage to her bumper for which he paid her just under €1,000 for a replacement bumper. Photographs were produced in court taken by a private investigator showing the plaintiff carrying out activities without showing any sign of difficulty, these included carrying shopping bags and easily getting into and out of her car. On the photos being produced, the plaintiff agreed that the person in the pictures was indeed her.

The defendant, having paid for the replacement bumper, was flabbergasted when the summons was served on him.

The judge found the evidence of the defendant was detailed and credible and that all the evidence demonstrated that the accident was minor. The judge further stated that the case smacked of opportunism in what looked like an overstated injury following a minor accident.

The case was dismissed with costs awarded to the defendant.

This case shows the risks in taking these types of accident cases to court. The plaintiff in this case, instead of being awarded money for whatever injury she actually incurred, was left with no award and a court order to pay the legal costs of both sides in the case which will run to several thousand Euros.

Collins v Tansey Dublin Circuit Court 12 May 2023.

INTERLOCUTORY INJUNCTION Balance of Convenience favoured the granting of Injunction.

Thu, 15 Jun 2023 21:08:44 GMT

Benson Fuel Ltd is a small family business involved in the distribution of liquid gas in south Wexford and Wexford town under a contract with Flogas Ireland Ltd. It has been a long-standing business relationship under contract which was renewed from time to time.

Flogas sought to terminate the contract under the terms of the last agreement entered between the parties as it wanted to establish a new direct distribution model. Flogas claimed that upon the expiry of a written agreement, in September 2021, the contractual relationship between the parties ended. After that they claimed that they would transact business between each other on an “orders placed basis”. Flogas claimed that there was no obligation on it to give any notice of termination at all and, alternatively, a nine-month notice period given to Benson was reasonable in all the circumstances.

Benson sought from the High Court an injunction restraining the termination of the alleged agreement pending the full hearing of its case. Flogas opposed the application.

Benson has two full-time employees, David Benson and his nephew, Alan Benson jnr. The business was set up by Alan Benson snr in and around 1978 and has been distributing propane and LPG in the south Wexford area since about 1982. Benson was a profitable company and there was no suggestion that it had failed to perform its obligations as exclusive distributors.

The arrangement with Flogas accounts for about two-thirds of Benson’s revenue. David Benson believes the company would have to enter liquidation if the distribution arrangement with Flogas is terminated. Flogas and Calor Gas hold 90% of the market and it would be difficult to find an alternative supplier, it was submitted to the court.

The judge considered whether damages would prove an adequate remedy should the plaintiff succeed in its action or whether an injunction was merited at this stage.

The judge did not think there was any basis, in the absence of any detail of significant financial loss, to conclude that the undertaking as to damages (if it loses the case) provided by Bensons was worthless. Benson’s undertaking as to its ability to pay damages had to be of substance.

The judge ruled that he was satisfied Benson had established a serious issue to be tried.

In his decision on the injunction, the judge ruled that the balance of convenience supported the grant of an injunction for a short period restraining the defendant from terminating the existing arrangements pending the trial of the action.

Benson Fuels Limited v. Flogas Ireland Limited [2023] IEHC 214.

PERSONAL INJURIES Student rider thrown from horse, suffering back injuries, but fails in her action for damages.

Fri, 02 Jun 2023 16:36:04 GMT

It cannot be said often enough that injuries alone will not be compensated in any court. A plaintiff must establish negligence on the part of the defendant and that this directly caused the injuries complained of.

In a recent High Court case, a student suffered injuries having been thrown by a horse which ‘bucked ‘and threw her to the ground. However, the plaintiff lost her case as she failed to establish that the equestrian centre had placed her on an unsuitable horse, without any prior warning, and was therefore negligent.

The student was an experienced rider and that day she was riding a horse called Mocha when it unexpectedly bucked and threw her to the ground. She suffered back injuries as a result and sued the equestrian centre.

In short, the plaintiff claimed that she had been given a horse with a known propensity for bucking and was not warned in advance and was therefore placed in danger. The plaintiff student tried to rein in the horse when Mocha started bucking and claimed that Mocha did not obey but instead sped up and veered left throwing her off. A witness for the plaintiff blamed the accident on the horse and not the rider.

The defendant stated in evidence that the accident was due to rider error and not because the horse was unsafe or had a poor temperament.

The High Court found in this case that two sets of experts were basically disagreeing with each other as to who was culpable. The chief issue here was whether Mocha had a propensity to buck which the plaintiff should have been warned about. The court accepted the defendant’s evidence that a bucking horse would not have been used by the riding centre. In addition, several of the riding centre’s staff attested to Mocha’s good temperament and confirmed no issues had arisen in the past with her.

The court also found that the plaintiff’s witness evidence was less than satisfactory and in some areas was inconsistent. The riding centre had not followed up with this witness after he had commented in court on Mocha’s propensity to buck.

The court dismissed the plaintiff’s claim finding that the defendants could not be held liable for the horse bucking. The court favored evidence given on behalf of the riding centre, that the horse did not have any known propensity to buck and there seemed little evidence to suggest that Mocha was not a suitable horse for the rider.

Allen v Clonshire Equestrian Centre [2023] IEHC 10.

LITIGATION Award Reflects New Guidelines for Multiple Injuries Sustained by Plaintiff

Fri, 02 Jun 2023 16:34:58 GMT

nder the old system, where a plaintiff suffered multiple injuries, each of his injuries was assessed and added together.

Under the new regime, according to the personal injury guidelines, a sum is awarded for the major injury and an uplift is then awarded to reflect any lesser or other injuries. The object is to ensure that the overall award is proportionate. A recent High Court case, in December 2022, showed how the new guidelines were implemented where the plaintiff still received a generous sum in compensation despite fears that awards would be less than adequate under the new system.

The plaintiff was rear ended by a van and basically claimed two types of injury. Firstly, his shoulder injury required surgery following complaints the plaintiff made of intermittent pain and difficulty with lifting and sleeping. Several months later, he was still complaining of discomfort and received a course of steroid injections.

Secondly, the plaintiff complained about psychological problems affecting his mental health. His work, social and sporting activities had all been severely affected. He was diagnosed with a depressive illness some years after the accident.

The Plaintiff’s legal team put a value of € 60,000 on his shoulder injury and € 20,000 for his psychiatric issues. The insurance company for the defendant offered far less for his shoulder injury and only € 5,000 for his psychiatric injuries as they described that as a minor disability.

The Court found the plaintiff was honest in describing his injuries. It accepted that surgery had helped him, but the plaintiff continued to suffer pain, discomfort and limitation and it appeared these symptoms would be permanent. His swimming activity had been almost totally cut short.

The court awarded him €55,000 for his shoulder injury and € 20,000 for his psychiatric injury. They attributed €50,000 for pain and suffering to date and € 25,000 for pain and suffering into the future. Special damages were added to the general award of € 75,000.

McDonnell v Upton Foods Ltd [2022] IEHC 680

COMMERCIAL LAW Injunction

Mon, 08 May 2023 10:14:17 GMT

Two financial funds and receivers appointed over three Dublin housing developments sought an injunction in the High Court to restrain the alleged owner of the developments from making public confidential financial information about the two financial companies.

The plaintiffs sought a temporary injunction restraining the person in possession of the information from using, publishing, distributing or disseminating any information he claimed to have acquired about the financial funds.

In 2022 the plaintiffs appointed receivers over three developments owned by Victoria Homes which is the subject of proceedings currently before the High Court.

The court was told that the individual sent an email on 14 ^th April stating ‘the whole Lotus loan book accounting to €110 million'. He claimed the file he had contained the names and personal details of everyone on the Lotus Decalia DAC loan book. His email said it ‘makes great reading’.

The defendant claimed that the financial information was sent to him by somebody working for the financial firms. The email was read to the court.

The High Court granted the temporary injunction restraining the person from publishing, distributing or disseminating any information he had in his possession about the financial funds.

Emerald Sky 11 DAC and Lotus Decalia DAC v Patrick Byrne High Court 19 April 2023

FARMING/REVENUE Agriculture Single Payments Scheme

Mon, 08 May 2023 10:13:24 GMT

A farmer who received €140,656 under the Scheme and did not include it in his annual tax returns received a Revenue demand for €72,728 which they claimed was a tax liability on the Scheme’s payment.

The farmer appealed their demand to the Tax Appeals Commission.

It was argued on the farmer’s behalf that the Revenue Commissioners were out of time to issue the amended assessment under tax law which imposes a four-year time limit.

The Appeal Commissioners agreed that the Revenue Commissioners were incorrect to issue the demand as it ruled that the assessment was outside the time limits under the Tax Acts and directed that the assessment be reduced to zero.

The Appeal Commissioners, on reviewing the facts, were satisfied that the farmer’s tax return for 2011 was ‘complete, accurate and truthful’. It ruled that it was immaterial whether the Scheme’s payment to the farmer was taxable as the Revenue Commissioners were out of time in issuing their amended assessment.

The farmer had several land interests during the year of the assessment and in May 2011 incorporated his farming business into a company along with transfers of assets and the herd numbers. In October 2011 he received the €140,656 payment under the Scheme to his bank account and the sum was subsequently transferred to the bank account of the new company. The farmer did not include the Scheme’s payment in hie personal income tax return for 2011 but did include it in corporation tax returns for the year ending May 2012.

A Farmer v The Revenue Commissioners Tax Appeal Commission, April 2023.

BANKRUPTCY Debtor liable for costs of Bankruptcy Petition on top of the debt

Fri, 21 Apr 2023 08:42:16 GMT

Some judges dealing with Bankruptcy cases over the years took the view that a Bankruptcy Petitioner brought his action on behalf of all creditors and not just himself and so costs did not necessarily follow even if the petitioner was successful, and the debt was paid. A recent High Court case, in December 2022, in effect overturned this practice and now a debtor must also pay all the costs of a Bankruptcy petition against him even where the debt is paid off at an early stage.

In this case the Revenue Commissioners had a judgement against a solicitor and issued a Bankruptcy summons in 2019 to enforce the debt. The Bankruptcy action dragged on for some years and in 2022 the debt was finally discharged but an argument ensued about who should be liable for the costs of the Bankruptcy proceedings to date although the debt itself had been fully paid.

The Revenue pointed to a 2011 case, MCR Personnel, where a plaintiff obtained a money judgement and then proceeded to bring a petition to wind up the debtor company. The debt was subsequently paid, and the Petition was withdrawn. It was found here that the debtor company should pay the costs of the proceedings to date even where they were withdrawn following payment.

The Court found in the Revenue case that Bankruptcy was clearly a civil proceeding and as such the well-established principle of costs following the event was fully applicable. The judge agreed with the MCR case and said the full payment of the debt owed was an event after which costs should be awarded. As the debt in question had been fully paid then, by any objective standard, the Petitioner had won the day and should be awarded his costs.

It should be noted that the court always has a discretion on costs but in future the discharge of a debt will result in a costs order against the debtor even where the Bankruptcy Petition was not fully prosecuted.

So, the Revenue recovered their legal costs of the Bankruptcy action as it went through the courts on top of the debt or taxes owed. This would have added a considerable sum to the original taxes owed as the unfortunate debtor now has to contemplate two separate sets of costs on top of the taxes due. It would be helpful if solicitors could bring this to the attention of any clients against whom a Wind-Up petition is brought.

Howley (Collector General of Taxes) v Lohan [2022] IEHC 694

MEDICAL NEGLIGENCE, Deficiencies in Care

Fri, 21 Apr 2023 08:40:03 GMT

A mother sued the HSE for injuries sustained by her newborn baby which she claimed arose due to a breach of duty of care owed to her and her baby by the HSE.

It was pleaded on behalf of a four-year-old boy that there was a failure to induce labour twice and that he would have escaped injury if he had been delivered sooner. Because this did not happen, he suffers quadriplegic spastic cerebral palsy, he cannot speak and is visually impaired. There were, it was claimed, deficiencies in care provided to his mother leading up to the birth of her son.

Tipperary University Hospital apologized for the deficiencies in care and the case against the HSE was settled in the High Court with an interim payment of €4.58 million. The HSE admitted a breach of duty but denied the child suffered injuries as a result.

Counsel for the child said that his mother was discharged from the hospital on 22 May 2018. He said the case notes stated the labour ward was busy and the patient was happy to go home, which, he said, suggested operational pressures were the reason for the discharge. It was planned the mother be induced two days later. The HSE admitted that it was in breach of its duty of care in the management of the mother’s pregnancy on different occasions in May 2018, resulting in a failure to induce labour. It further admitted a breach in their duty of care in the management of the mother following the spontaneous rupture of membranes on 24 May 2018.

The cause of the boy’s cerebral palsy remained an issue in the case and there will be a review of the case in court in five years.

Meaney v HSE High Court 10 March 2023

CORONER Medical Misadventure

Wed, 29 Mar 2023 10:48:52 GMT

Award Reversed on Appeal

Plaintiff who slipped on ice outside his apartment has € 60,000 award overturned on appeal.

The appeal court found the plaintiff had failed to explicitly plead certain claims of negligence and in addition the trial judge had made some incorrect findings.

The plaintiff lived in an apartment where his hall door led on to an open air landing from where steps led down to the ground. He left for work early in November 2016 and it had been icy overnight. It was also dark as the light over the plaintiff’s door was broken. He slipped on ice and fell down some steps. He sued the management company.

The High Court awarded him €60, 000 damages and found that: 1. The path outside was in the control of the defendants who had a duty to grit these areas. 2.Anti-skid strips should have been fixed to the steps. 3. The faulty light contributed to the problem.

However, on appeal, the court found the trial judge was wrong in certain of his findings. The hall door light was never the responsibility of the defendants as it belonged to the plaintiff. The plaintiff had relied on three issues at trial: The lack of lighting, the absence of gritting and securing the steps with anti- skid material. However, although the lighting issue had been pleaded late in the day, the other issues were never actually pleaded at all despite a helpful engineer’s report secured by the plaintiff. The court found this was unacceptable and insisted the parties should provide full and detailed particulars of each allegation making up their claim. The lack of detailed pleadings made it impossible for the defendants to deal with the claims they had to meet based on the pleaded case.

The engineer’s report was detailed but the court stated this was no substitute for pleadings and every plaintiff had to properly plead a case they wished to have tried. The report was not conclusive on the benefit of anti-skid matting. As for gritting, the court found that gritting may have avoided the accident but did not mean the defendant was therefore liable for the accident. The defendant was not under a duty to lay grit on the landing. A property management company would have obliged, if asked, but none of the 98 complexes it managed required gritting on its footpaths or steps.

It was claimed the management company should have gritted the common areas in advance of bad weather but the court held this was too onerous and an unreasonable duty to fix management companies with.

The appeal court found the plaintiff was also bound to take reasonable care for his own safety. The plaintiff had lived there for years and should have anticipated the likely consequences of ice on the landing in very cold weather. He was largely responsible for his own accident. The court allowed the appeal and overturned the earlier award.

Ahmed v Castlegrange Management Company limited [2022] IECA 269

PERSONAL INJURIES Award Reversed on Appeal

Wed, 29 Mar 2023 10:44:24 GMT

Award Reversed on Appeal

Plaintiff who slipped on ice outside his apartment has € 60,000 award overturned on appeal.

The appeal court found the plaintiff had failed to explicitly plead certain claims of negligence and in addition the trial judge had made some incorrect findings.

It was claimed the management company should have gritted the common areas in advance of bad weather but the court held this was too onerous and an unreasonable duty to fix management companies with.

Ahmed v Castlegrange Management Company limited [2022] IECA 269

STATUTE OF LIMITATIONS IN LITIGATION

Wed, 29 Mar 2023 10:38:52 GMT

STATUTE OF LIMITATIONS IN LITIGATION

When people are unfortunate to have an accident which causes injury to them resulting from a third-party incident, they often wait and see how the injury is progressing before consulting a solicitor to see if any action should be taken. Some injuries can be dormant only to arise at a later stage. The risk here is that unless they take legal action within two years of the accident, they will be statute barred. That means, in the vast majority of cases, it is too late to take legal action for injury caused by the accident.

So, Can Anything be Done if Statute Barred?

The rule is the personal injury case must be commenced within two years but there are exceptions to this.

This is where a solicitor's advice is particularly important. They will assess the particulars of the case and see if it falls within any of the exceptions where proceedings can be initiated even outside the two-year limit.

Personal Injuries Assessment Board (PIAB)

Many personal injury cases are determined before the PIAB but if your case is statute barred, the PIAB will decline to take your case. The PIAB is the first place where personal injury claims must be applied for in Ireland.

The Statute of Limitations, on the face of it, would disallow any personal injury case to proceed if outside the two-year limitation period therefore it is critically important to ask your solicitor for advice on whether your case could fall into one of the few exceptions. Speed is of essence but try to avoid this by having an early discussion with your solicitor if you suffer any injury which was caused by a third party.

PERSONAL INJURIES

partners@onlinepartners.online (Snap Websites) — Mon, 20 Mar 2023 15:36:17 GMT

First Award Under New Damages Guidelines.

After lengthy lobbying by insurance companies, who were charging higher premiums to cover larger PI awards in the courts, the government introduced, in April 2021, new Guidelines for the courts in their determination of their awards of damages.

In a High Court case in July 2022, the judge was tasked to decide the level of damages for a plaintiff girl who was injure d following an accident but who developed Post Traumatic Stress Disorder (PTSD) for several months thereafter. The case was one of the first PI cases where the court had to decide on the damages by applying the new Guidelines. Some commentators were expecting the eventual award to be much reduced, but the actual award was higher than expected.

The 14-year-old girl was struck by a car and knocked down. All parties agreed that she had suffered from psychological injuries after the accident, and these were diagnosed as PTSD. She also had some minor injuries and a small scar below her buttock.

However, her main injury was PTSD, and this finding was supported by her parents and schoolteachers. She suffered from flashbacks, nightmares, panic attacks and poor attention at school resulting in a decline in her overall academic performance. She had received some professional counselling but would require more although she was progressing satisfactorily.

The net issue at the hearing was the assessment of her injuries under the new Guidelines. The plaintiff maintained her injuries were somewhere between moderate and serious PTSD. The moderate type would result in an award of between €10K to € 35K while the serious version would result in a higher award between € 35k to €85K. Not surprisingly, the insurance company argued that her injury fell within the moderate category and should be valued at € 20k.

The task of the court was to determine how the new Guidelines should impact on an award of damages. Importantly, it also noted that a court could depart from the Guidelines if the justice of the case requires but must set out concise reasons for doing so.

While serious PTSD typically involved a disability for the foreseeable future, the moderate PTSD category envisaged that the plaintiff will have largely recovered, and any continuing effects will not be grossly disabling by the time the case comes on for hearing.

The court was satisfied that the plaintiff’s PTSD fell into the moderate category but considering the negative impact on her schooling and Leaving Certificate prospects, it fixed an award at the top end of the moderate category being € 35k.

The court also awarded her € 25k for her scar and soft tissue injuries which had largely settled. This brought the total sum awarded to €60k.

This case illustrates how a fear of much lower court awards following the new Guidelines appears to be misplaced.

Lipinski (A Minor) v Whelan [2022] IEHC 452

LITIGATION

Mon, 27 Feb 2023 15:22:02 GMT

The Expert Witness – What is Their Role?

An expert witness is a person who has a recognised, specialist knowledge, a skill or experience in a particular area, such as doctors, dentists, engineers but not necessarily confined to professionals as they can be experienced motor engineers, mechanics, plumbers etc.

Experts are usually asked for a written opinion which may not necessarily be used in a court case. The party seeking the opinion may decide, before or during the hearing not to actually use the opinion.

It is important to note that the expert witness has no link or association with any of the parties in the case. They are independent and are required to give an unbiased opinion. It is incorrect to believe that an expert witness is ‘on the side’ of the party calling and paying their fee. The essential purpose of the expert’s opinion is to assist the court in their deliberation of the matters being argued by the litigants.

Another purpose of calling expert witnesses in court cases is to assist the judge on subjects that might be outside the judge’s own field of knowledge or understanding. For instance, where a structure collapsed and caused damage and or injury, an expert could assist the court in giving their opinion on whether the structure was built in a proper and safe way.

The expert should confine their opinion entirely to matters within their own knowledge and not speculate.

Experts should be informed and up-to-date on their subject matter or field of expertise otherwise their evidence might be easily rebutted.

ELDERLY LAW

Mon, 27 Feb 2023 15:19:06 GMT

Planning for the Future

As people get older, their legal needs may change with some requiring more updating than others. This is particularly so where a loved-one is showing signs of memory loss or Alzheimer’s Disease.

The law relating to the elderly can be found in legislation that applies to individuals but there are particular sensitivities and urgencies which may have to be addressed and these are best done under the supervision of a solicitor.

Safeguards need to be in place to avoid an elderly person being abused or duped into spending or giving money away where it is not necessary. Elderly people need to make decisions about their lives where, for a variety of reasons, they may be having trouble coping. Future planning measures can avoid possible distress for the elderly and reduce costs too in addressing these matters sooner rather than later.

Elder Care Planning

Some of the areas that should be considered are:

Making a Will
Enduring Powers of Attorney
Dealing with assets the person may have (shares, property interests)
Equity Release Schemes
Health and Personal Care Planning
Insurance
Financial planning
Trusts
Family Business succession.

Before embarking on any of the above measures in planning for the elderly, discuss it first with your solicitor and financial adviser.

PERSONAL INJURY

Mon, 27 Feb 2023 15:16:04 GMT

Cyclist’s Award Reduced for not wearing Safety Helmet

A cyclist suffered a head injury which caused concussion and soft tissue injuries to her face, shoulder and arm when she was knocked off her bike by a truck. The cyclist, a restaurant server, lost control of her bike when a heavy sand truck had veered slightly to its left approaching traffic lights and brushed against her right shoulder. As the truck could not be traced the cyclist sued the Motor Insurer's Bureau of Ireland.

The Circuit Court judge found for the cyclist and awarded her €20,000 but as she had not been wearing a crash helmet at the time of the accident, the award was reduced by 20%. This reduction is attributable to the contributory negligence of the plaintiff herself.

Contributory negligence is a principle of law whereby an injured party may have contributed to their own injury by acting negligently when confronted with apparent and known circumstances. The extent of the blame for an accident in which a person is injured is determined by contributory negligence. Where the contribution by the claimant is high, the reduction will be high.

Lopes de Andrade Aquino v Motor Bureau of Ireland Circuit Court (Daly J) 25 January 2023.

CONTRACT

Mon, 09 Jan 2023 11:50:02 GMT

Endorsement Contracts

Commercialisation of sport in Ireland is big business; golf, football, horse racing is a few examples where sponsorship plays an important role. As individuals within a sport become famous, many negotiate commercial deals for themselves, and these are termed ‘endorsements.

An endorsement arises where a company, in seeking to promote their brand, will pay an individual to be linked or associated with their brand. Here a sporting star, like a world class soccer player or golfer, will associate with the company’s brand to promote their products. The sports stars get paid for this exploitation of their branding or endorsing of the company’s products.

The sports stars can endorse the products by way of TV/Online/print advertising or by wearing or using the company’s products.

Endorsement Agreements

The company and the sports star will enter a legal agreement which will set out terms such as:

1. The term or length of the agreement

2. The payment to be made to the sport’s star and frequency of payment

3. What type of promotional work is to be provided by the sport’s star

4. Exclusivity, that is, prohibiting the sports star from also promoting a competitor's

products.

There will most likely be a ‘good behaviour’ clause whereby if the sport star is involved in

conduct that would bring the brand in to disrepute, that the company can terminate the

endorsement agreement immediately.

For individuals, clubs and sponsoring companies, it is vital to get legal advice before signing any such agreements. These can be complex agreements which often end up in disputes and litigation and no one should enter them without independent legal advice.

PERSONAL INJURIES

Mon, 09 Jan 2023 11:42:09 GMT

Challenge to New Guidelines Dismissed by High Court; Lower Damages Are Here to Stay.

High level awards were, in recent years, feeding into higher premiums and the government was under pressure to introduce changes. In March 2021 the Judicial Council, essentially all of the judges, passed the new judicial guidelines under the Judicial Council Act 2019. These provided for much lower awards in PI cases and one claimant who had been told her case was worth up to € 34,000, but who was only assessed at € 3,000 by PIAB, challenged the new guidelines and related legislation. She applied to PIAB before the new rules took effect but was assessed under the new regime.

The plaintiff complained that the 2019 Act interfered with judicial independence and that the guidelines should not be retrospectively applied to her. She claimed her case should be assessed under the old rules as she applied to PIAB some years before the new and reduced awards came into force.

The court looked at section 90 of the 2019 Act and found that the court must consider the level of damages awarded in the state and other jurisdictions, principles for assessment and the need to promote consistency in the level of compensation for personal injury claims.

As for the issue of independence of the judges, the court held that existing legislation allowed a court to depart from the guidelines where reasons were given by the judge and this did not represent any substantial change to the current system under the Book of Quantum where it was desirable that a court should refer to its provisions.

As to the plaintiff’s case being undermined by retrospective rules, the court found the plaintiff had the right to have damages assessed in accordance with the law applicable at the time of assessment but did not have a right to any specific sum contained in the Book of Quantum. The reduction in awards, which was in keeping with public policy, did not amount to an “unjust attack” on her rights as she had claimed.

An application to PIAB was different to an assessment, and that could only be arrived at following the furnishing of all relevant information to the PIAB assessor. In this case the claimant had delayed sending all her Xrays to PIAB.

The court concluded that the guidelines were now valid as a matter of law and it found that PIAB had correctly applied the new guidelines to the claimant’s case. Her application for judicial review of the new guidelines was therefore refused.

Delaney v the Personal Injuries Assessment Board & Others [2022] IEHC 321

CONVEYANCING

Mon, 09 Jan 2023 11:39:33 GMT

Selling up: You need not only your title deeds but also a good solicitor!

Your title deeds are like your log book; they are proof you own your house and there are no hurdles to selling it on again. However, there can be many documents, maps and other paperwork that make up your full title deeds and losing them can cause a lot of grief as well as additional costs.|
You can also have problems that arise within the title deeds where wrong or incomplete documentation is discovered and this usually causes delays and further expense to rectify. In many cases, it takes skill and experience to read through a long and convoluted title history and, where necessary, to draft any rectifying documents that may be required. Mistakes made even years ago can potentially render a house unsaleable.
For centuries there have been two different systems in Ireland which record your title deeds as proof of your ownership and these are:
(a) The Registry of Deeds. Since the 1700s, the Registry of Deeds records the existence – and therefore the effect- of various documents such as leases, conveyances and mortgages that typically transfer or affect property.
(b) The Land Registry. This is a more modern registry which simply confirms you are the owner and also provides a map of your property. It is a type of gold standard registration as you acquire one certificate of ownership rather than scores of old deeds and related documents which have to be traced back and read again.
(c) The Land Registry will gradually take over all registrations from the Registry of Deeds with increased computerization and will furnish a purchaser with a certificate of ownership, state guaranteed, not unlike the purchaser’s own log book for his car !
Role of your solicitor:
Any solicitor who works most of the time on property matters is called a Conveyancer and his/ her work could involve apartments, farmland, the family home or a shopping center. They will be buying or selling property while a bank solicitor will be reviewing all documents and preparing mortgages to protect and secure the bank’s interest.

A selling solicitor will draft up all the contract documents to include various conditions as to planning matters or rights of way etc. essentially to protect the interests of the seller.

A purchasing solicitor will have to review all these documents, raise queries on the title or related matters and draft the deeds by which the title will be fully transferred to the new purchaser again to fully protect his own client’s interests.

The transfer or conveyancing of property is a field where, unfortunately, many disputes can arise even some years after it has been completed. The newspapers are often full of court reports about disputes over boundaries, maps, extensions, family inheritances, rights of way and a lot of other matters so retaining a competent and experienced solicitor is always in your best interests.

PERSONAL INJURIES Contributory Negligence

Thu, 01 Dec 2022 09:14:01 GMT

Contributory negligence applies where the injured party played a part himself in causing his own injury. A judge in determining an amount of damages for the injury incurred can reduce the award by the percentage the plaintiff contributed to the accident.

A defendant to a personal injury claim is permitted to claim, by way of defence, that the plaintiff contributed to the accident. An obvious example would be where a passenger in a car suffered injury as a result of the negligence of the driver but if the passenger did not wear their safety belt, then they contributed to their own injury and the damages award will be reduced.

In general, a failure to wear a safety belt can reduce a motor accident claim by 25% but this is only a guide, a judge could reduce it even higher. But the failure to wear a safety belt would be seized upon by the defendant as a major defence. If for example, the driver reminded the passenger to put on their safety belt, but they did not do so, a judge could impose a far greater reduction in damages.

When injured in an accident, which you believe is not of your making, discuss it with your solicitor but be sure to give correct information as exaggerated accounts could result in subsequent cases being lost in court with considerable legal costs being awarded against you.

MEDICAL NEGLIGENCE Brain Injury

Sun, 20 Nov 2022 12:33:31 GMT

A 12-year-old boy who suffered a traumatic brain injury as a baby was awarded almost €10 million arising from a road traffic accident when he was just nine months old.

The boy was sitting on the lap of a person in the back seat of the car when the accident occurred. The car was driven by the boy’s late father who subsequently died from his injuries. The driver was uninsured.

The boy suffered a fracture to his skull, had brain swelling and was hospitalized. As he grew older it became clear he was missing developmental milestones together with problems with his gait and balance.

The case taken on his behalf was against the Motor Insurers’ Bureau of Ireland and the local county council. The plaintiff claimed the council allowed the roadway to deteriorate and be of such an undulating nature that the driver lost control of the car and caused the accident. Liability was not disputed; it was before the court to assess damages. The court was told that a settlement of €9.75m had been agreed by the parties and the judge approved it.

O’Leary v Kerry County Council and MIBI High Court (Coffey J) October 2022.

PERSONAL INJURIES Statute Barred for Late Proceedings

Sun, 20 Nov 2022 12:32:39 GMT

A Dunnes Stores worker sought to lodge a complaint with the PIAB but was 10 months outside the two-year limitation period specified for doing so.

The worker claimed that she was bullied and harassed in her workplace which led to poor health. She first visited her GP with her issues in May 2014. She decided to lodge a claim for personal injuries with the PIAB, but her application was not lodged until March 2017. This meant that she was 10-months outside the permitted time to lodge claims. The worker relied on her GP’s evidence which showed she was extremely upset, tearful and distraught and was diagnosed with mild depression. In 2016 she was admitted to hospital with a delusional disorder. She claimed because of her condition she could not bring herself to bring the proceedings within the time limit and claimed she should be allowed proceed under the disability exception.

The court considered the issue of disability where firstly it had to be convinced that there was a disability issue to allow an exception. The court cited a precedent which stated that a person must be under a disability at the time of the cause of the action. The court found that while the plaintiff suffered from a psychotic illness from October 2014, however she was not diagnosed until May 2016. Unfortunately, this did not satisfy the Statute of Limitations and as such, the court held that the proceedings should be struck out pursuant to the Statute of Limitations 1991, as amended.

This case shows that the plaintiff’s delay in lodging her application had cost her the loss of her claim and cost of the proceedings.

Johnson v. Dunnes Stores plc [2022] IEHC 580

TRADEMARKS Distinctiveness

Sun, 20 Nov 2022 12:30:33 GMT

When seeking to register a trademark, it is of utmost importance that it is distinctive from other registered trademarks. A lack of distinctiveness is a common ground for the refusal of a trademark. Even if the trademark application is initially accepted for registration, it must then undergo a three-month period to allow any objections to the trademark to be lodged.

A recent example of a trademark failing on grounds of distinctiveness is the mixed martial arts star Conor McGregor who failed to register his name as a trademark in the EU after a Dutch company objected to his registration.

The governing body in Europe for trademarks is the EU Intellectual Property Office (EUIPO). This body upheld the objections of the Dutch company named McGregor IP BV. Conor McGregor’s company, McGregor Sports and Entertainment Ltd sought to register the trademark ‘Conor McGregor'. Conor’s company and trademark was for the sale of clothing, footwear and sportswear in the EU. The Dutch company designs, manufactures, distributes and sells mostly apparel and accessories under the ‘McGregor’ brand.

The EUIPO in their decision rejected Conor McGregor’s application of his trademark finding that there would be a likelihood of confusion between the two names. Conor McGregor’s agents denied that the two trademarks were similar. They submitted that they can be readily distinguished, and the average consumer would not believe that the goods of ‘Conor McGregor’ originated from the Dutch firm ‘McGregor’. However, their submission failed as the EUIPO did not believe their trademark passed the distinctiveness test and was easily confused with the objector's trademark.

Adverse Possession or Squatters Rights

Thu, 27 Oct 2022 20:24:25 GMT

Property owners beware! Where a third party has continuously and without any challenge, occupied a piece of land or building for 12 years or more then the third party may attain a right over the land or property. To avoid this the landowner must take action (usually to evict the occupier) within the 12-year period. Failure of the property owner to challenge the trespasser or take such action, can result in the ownership of the property in effect being forfeited to the occupier of the land/property.

Action to be Taken

Whether it is a boundary dispute or any dispute involving the ownership of the land, speak to your solicitor and act on it without any delay to avoid any possible rights accruing to third parties by default.

PROPERTY Boundary Disputes

Thu, 27 Oct 2022 20:23:36 GMT

Boundary disputes between neighbours or farmers can fester and result in costly and protracted litigation. Unless resolved, it could also result in reducing the value of the property.

Before embarking on a row with a neighbour, check the deed records of the properties as these typically have maps attached. These can be found in the Registry of Deeds or the Land Registry. If the property is registered, then the exact boundaries should be clear. In some cases, where there have been a number of conveyances on the property adjoining each other, then the correct boundary will usually be visible on the earliest conveyance. If the boundary division is unclear, which can be the case and is unhelpful, then unless a compromise solution is found between the parties, a judge may well have to rule on their opinion of where the boundary lines are.

A complication can arise where there is a wall, hedge or stream where the border line is. Over time, these physical features can change or disappear adding a layer of confusion in determining the border. A professional surveyor would be best placed to determine the borders.

Boundaries between properties can exist quietly for years until one property owner decides to remove a hedge or erect a fence. When that happens, you usually find then the adjacent landowner objects to the fence or wall believing the land is in fact theirs.

TORT Noisy Neighbours

Thu, 27 Oct 2022 20:22:18 GMT

If the behaviour of a neighbour disturbs the quiet enjoyment of your home, there are remedies to resolve this. The obvious first step is to alert the neighbour of the disturbance they are making but if they continue then other steps will be required.

Unfortunately, resorting to having a solicitor’s letter be issued, will not be received well by the offending neighbour but if faced with the neighbour ignoring reasonable requests from making the disturbance, then there is no other option.

There is a procedure to bring a complaint to the District Court under the Environment Protection Agency Act, 1992, section 108 (3). Your solicitor will walk you through this and what will be required for the court hearing.

If, however, the neighbour causing the disturbance is a tenant, a complaint can be made to the Private Residential Tenancies Board. This would put the liability on the owner (landlord) of the property to ensure the tenant ceases the disturbances. Here, landlords can be ordered to pay compensation for the disturbances and to make sure the behaviour of the tenant stops.

The courts have ruled on cases of nuisance involving neighbours and the court will hear the facts and rule accordingly. If the nuisance was loud music the courts have set a standard where the level of the noise is beyond what is subjectively reasonable for a person to have to put up with. If the noise is prolonged or repeated to such a normal an average person should not be expected to put up with, then a court could find against the offending neighbour.

MEDICAL NEGLIGENCE Dental Care

Tue, 11 Oct 2022 20:21:25 GMT

Dentists, like doctors, provide a medical professional service and are open to negligence claims where, as a result of their work, a person suffers injury.

Samples of dental negligence are:

Some of the above are more serious than others though all are actionable.

If a claim is made against a dentist, the complainant needs to establish that pain and or injury resulted from the dentist’s treatment.

In many cases a complainant will need the opinion of an independent dental expert to express their opinion of the dentist’s treatment where the dentist disputes negligence.

Dental negligence is quite technical and early contact with your solicitor is essential.

FARMING Buying or Selling an Animal

Tue, 11 Oct 2022 20:19:53 GMT

If buying or selling an animal privately then caution is advised. ‘Caveat Emptor’ applies, that is, let the buyer be aware. The onus is on the buyer to be satisfied that the animal is fully fit for the purpose they have in mind. The sellers are not obliged to disclose any problems the animal has but they must not mislead the buyer. If the animal is advertised, there must be honest representation of the animal.

A written contract of the transaction is advised, and this should set out the terms of the sale or purchase. In the event of a dispute, without a written contract, it can be exceedingly difficult to prove what was agreed between the parties. If a vendor or seller is reluctant to commit the deal to paper, then it might be better to look elsewhere to purchase another animal. Verbal agreements are difficult to resolve whenever a dispute arises.

CONTRACT Breach of

Fri, 30 Sep 2022 11:32:24 GMT

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 into 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 lNJURIES Challenge to new guidelines dismissed by High Court; lower damages are here to stay.

Fri, 30 Sep 2022 11:29:09 GMT

The Workplace Relations Commission heard an application where the property owner refused to accept Hap (Housing Assistance Payment).

High level awards were, in recent years, feeding into higher premiums and the government were under pressure to introduce changes. In March 2021 the Judicial Council, essentially all of the judges, passed the new judicial guidelines under the Judicial Council Act 2019. These provided for much lower awards in PI cases and one claimant who had been told her case was worth up to € 34,000, but who was only assessed at € 3,000 by PIAB, challenged the new guidelines and related legislation. She applied to PIAB before the new rules took effect but was assessed under the new regime.

The plaintiff complained the 2019 Act interfered with judicial independence and that the guidelines should not be retrospectively applied to her. She claimed her case should be assessed under the old rules as she applied to PIAB some years before the new and reduced awards came in to force.

Delaney v the Personal Injuries Assessment Board & others [2022] IEHC 321

PERSONAL INJURIES Road Traffic Accident

Thu, 29 Sep 2022 10:42:54 GMT

The plaintiff was exiting a car park on Ushers Quay, Dublin, when the defendant driver rear-ended her. She sued for €60,000 personal injuries arising from the accident.

The plaintiff claimed that the impact on her car was like being struck by a bus. She claimed she suffered a soft tissue injury to her cervical, thoracic and lumbar spine and had a reduced range of movements in her sacral and cervical spine. In cross-examination, the plaintiff said that she had received €40,000 compensation from a car accident in 2013.

The plaintiff told the presiding judge that she attended her GP nine days after the accident and he had prescribed anti-inflammatory medication, muscle relaxant and pain killers. He had also recommended exercises and that she undergo physiotherapy treatment.

The defendant told the court that she had only been travelling at 4 miles an hour at the time of the accident. When the incident occurred, she got out of her car and apologised to the plaintiff, but she was shocked when she received the summons from the plaintiff.

Expert witness evidence stated that if the defendant’s car was travelling at only 4 miles per hour it would have been highly unlikely that the plaintiff suffered the injuries claimed.

Further, it was noted that the plaintiff’s sister was also in the plaintiff’s car at the time of the accident and had suffered no injuries, nor was she present in court as a witness.

Counsel for the defendant showed covert video coverage of the plaintiff allegedly walking without difficulty along Howth Hill. The defence claimed that the plaintiff could not have suffered the injuries claimed in such a low impact collision as had occurred.

The court also heard from an engineer that while there was no obvious exterior damage to the rear bumper of Duffy’s 2008 Renault Megane, the support bars behind the bumper had been damaged. The plaintiff said she had received a repair estimate of € 677.60 but did not in fact have her car repaired.

The judge dismissed the plaintiff’s claim commenting that the plaintiff looked to be very agile in the video. He said the impact was minimal and was of the opinion that the claim was opportunistic.

Duffy v Dowling Dublin Circuit Court (Judge James O’Donohoe) July 2022.

LITIGATION Insurers can’t use the Statute of Limitations as a Defense if they have already Admitted Liability

Thu, 29 Sep 2022 10:41:29 GMT

Insurers can’t use the Statute of Limitations as a Defense if they have already Admitted Liability

There are strict time limits for applying to the Personal Injuries Assessment Board (PIAB) and for issuing proceedings in personal injuries cases. If you make an application to PIAB later than two years from the accident date, your claim will be rejected. In certain cases, the courts will make an exception where it would be patently unfair to do otherwise.

In a recent case before the High Court, the defendant insurer was not allowed use the Statute as a defense because it had admitted liability and offered settlement negotiations some months before the time limits had expired.

Following a work injury, the plaintiff’s solicitor engaged with the company insurers who asked for a medical report and admitted liability. There were some delays in furnishing the medical report. The insurers subsequently messaged the plaintiff’s solicitors and promised on receipt to get the case settled.

An application was filed with PIAB in December 2015 just two days after the two-year limitation period. Some days later the insurers contacted the plaintiff solicitors about the case but made no mention of using the Statute as a defense.

Unfortunately, later in December 2015 the insurers, now aware of the PIAB application, indicated they would be using the Statute defense to oppose the claim. The plaintiff’s solicitor then issued proceedings shortly after but lost the case in the Circuit court where the judge found it was indeed statute barred. An appeal was taken to the High Court claiming the insurers could hardly use the Statute as a defense as they had already admitted liability.

The judge in the High Court commented on the frequent attempts by the insurer to settle the case on inspection of the medical reports. The insurers must have been aware the claim was close to the two-year limit, but they never made any argument about this. In addition, there had been an explicit and unconditional admission of liability in the case.

The judge found that all the repeated contacts from the insurers gave the plaintiff solicitor comfort that the Statute was not of any particular importance in this case. The insurers had actually indicated a willingness to settle the case promptly and the plaintiff solicitor understood that liability was never an issue due to their admission of liability.

Essentially, the judge looked at the insurer’s conduct and held it would be totally unfair to allow the insurers to rely on the Statute as they had lulled the plaintiff’s side into a false sense of security that the Statute was not a factor in this case.

The judge allowed the appeal and found the defendant insurer was not entitled to rely on the Statute.

Tsiu v Campbell Catering Company T/A Aramark Ireland [2022] IEHC 391

MICRA REDRESS SCHEME Improved Offer

Mon, 08 Aug 2022 11:46:48 GMT

MICRA REDRESS SCHEME

Improved Offer

Even people not affected at all by Mica problems, will certainly have been moved by the plight of house owners, particularly in some western counties, whose homes have been devastated by Micra, the latest building blight. A large amount of homes will have to be demolished and rebuilt as they are effectively beyond repair. Most of the occupants of these houses, the majority of them family homes, tend to have outstanding mortgages on them so borrowing large sums again to repair or replace their homes is not a runner.

The initial compensation scheme offered by the state to those affected came under fire as most house owners felt it was totally inadequate. Recent surges in the cost of building materials and labour have only highlighted their difficulties and calls for an improved scheme became more strident.

Legislation is now being drafted to provide for an improved scheme after cabinet approval. The new measures, which have a rather long winded title “ Remediation of Dwellings damaged by the use of Defective Concrete Blocks Bill 2022” is now to include additional counties of Clare and Limerick. It will provide for 100% grants of sums up to but not exceeding € 420,000 per dwelling. The total cost could amount to €3 billion.

In addition the government has allowed a sort of pre-legislative screening of the Bill to take place to involve the various stakeholders such as the Mica Action Groups which represent nearly all of the affected homeowners. The moves will be specially welcomed by those most severely affected who, at one stage, were afraid of losing their homes altogether if sufficient redress was not provided.

COMPANY LAW Annual General Meetings

Mon, 08 Aug 2022 11:45:28 GMT

COMPANY LAW

Annual General Meetings

The 2014 Companies Act requires companies to convene an Annual General Meeting. This is a regulatory requirement. The requirement is that the gap between each AGM is 15 months and must take place within 9 months of the financial year-end of the company. There are though two exceptions to this requirement:

Where a company holds its first AGM within 18 months of its incorporation, it does not need to hold an AGM in the year of its incorporation or the following year.
Where a written resolution dealing with all matters to be considered at the AGM is signed by the company’s member(s), that are entitled to attend and vote at the AGM before the latest date for the holding of such AGM.

In smaller companies (b) is useful to save time and expense of convening the AGM. But it should be noted that while this option is available to all private companies limited by shares, it is only available to single-member DACs, PLCs, CLGs and unlimited companies.

Failure to Convene an AGM

Careful attention should be made to this as under the Companies Act, any company or officer of the company who fails to hold an AGM can be found guilty of a Category 3 offence under the Act and could be fined up to a maximum of €5,000 or imprisonment up to six months or both. However, scary as this appears, it only applies where the company or officer of the company fail to comply with a direction from the Office Director of Corporate Enforcement (“ODCE”) in relation to the holding of the AGM.

The convening of the statutory requirement might appear a nuisance for small companies, but it is worth making the effort in order to stay compliant with the Companies Act.

LITIGATION General Damages and Special Damages Explained

Mon, 08 Aug 2022 11:43:27 GMT

LITIGATION

General Damages and Special Damages Explained

When taking a personal injury case resulting from an injury, if successful damages can be made under the headings ‘General Damages’ and ‘Special Damages’.

General damages are awarded for the actual injury suffered as a result of the accident such as, pain and suffering while special damages compensate for expenses incurred or losses arising a from the accident such as GP fees, hospital charges, scans, medication, taxi fares, loss of wages etc.

Where the accident caused the injured party to lose wages, these can be recovered under special damages. If the injured party was in receipt of social welfare support during the time off work, these payments will be deducted from the amount awarded.

It is important to keep a record of any such expenses incurred and proof of these by way of actual or copy receipts.

Every case is different so it is difficult to estimate what special damages could amount to, but your solicitor will take into consideration the following:

Past, current and future medical expenses
Loss of income to date
Future loss of income if appropriate
Travel expenses
Parking fees at doctors/hospital

Medical Injuries

This is what the injured party suffered resulting from the negligence of the party responsible. The categories that are common are:

Physical pain
Mental pain/stress
Pain & suffering likely to continue into the future
Physical impairment
Inability to perform functions that could be done prior to the accident
Quality of life reduced
Reduction of mobility

These are general guidelines; cases will differ, for example, a model where there is disfigurement on the face would receive greater damages as their career could be ended by the disfigurement.

PERSONAL INJURIES Workplace Accident

Mon, 08 Aug 2022 11:41:24 GMT

PERSONAL INJURIES

Workplace Accident

As a result of the accident, the plaintiff sustained fractures to her four upper front teeth and nerve damage resulting in two of them turning black and she had to have the four crowned .

A forensic engineer gave evidence saying that the only reasonable explanation for the accident was that she had not seen the closed door due to a moment of inattention on her part.

General damages were assessed at €17,500 together with €4,220 for dental work to date and €3,960 for future dental treatment.

Taking the plaintiff’s contributory negligence into account he awarded her a decree for €16,692 and her legal costs.

McDonald v Brightwater Solutions (I) Ltd Circuit Court (Judge Dara Hayes) 22 March 2022.

PURCHASING PROPERTY

Sat, 16 Jul 2022 11:09:53 GMT

Houses or Apartments

When you purchase a house, you get freehold title to the property, and this means you own it outright. But with apartments, it is usually a long leasehold, typically for 999 years, where the lease is the primary title to the property. The lease mechanism is used for apartments because it allows the developer/ management company owner to bind the purchasers to carry out or perform certain obligations as to use, upkeep or payment of service charge typically by way of covenants.

All of the purchasers in a block would contract to take a share in and effectively take over the management company in all the common areas of the complex such as the gardens, car park, corridors, roof and so on. The end result is that the purchasers will end up as individual owners of the apartments while the common areas will ultimately be owned by the management company which in itself is owned and controlled by the owners.

The management company is important because it is their responsibility to maintain the grounds, common areas etc of that apartment property and to insure the block against fire.

If considering purchasing an apartment, your solicitor can explain the lease and go through all the details of it. Some apartments will have rules in regarding to the keeping of family pets, noise, tidiness etc. There is considerably more documentation with apartments and duplexes than with houses.

Service Charges in Apartments

The Management company will specify a charge for running and maintaining the common areas shared with other apartment occupiers, this will include a share of insurance cover required in running and maintaining the apartments. The managment company should also, more importantly, provide for a contingency fund ( or a "sinking fund reserve " ) in case substantial repairs have to be carried out to the roof , for example, some years down the line.

Before purchasing an apartment, it is especially important that you ask your solicitor to explain everything and preferably have a surveyor or architect check it out to avoid unpleasant financial or other surprises after the purchase has been completed.

PROBATE How to Contest a Will

Fri, 01 Jul 2022 14:12:24 GMT

When Wills are disclosed to family members, occasions can arise when people felt they have been left out or unfairly treated. There are ways under law to address this and challenge a will.

Where a person expected to be a beneficiary but was excluded, it is vital that you consult your solicitor to be advised whether you have a legitimate case to challenge the will. This is very important as there are timeframes within which claims should be made.

Common grounds to challenge a Will are:

The validity of the Will
How the Will was made
Whether the testator (person making the Will) was ill and was fully aware of what they were doing ; this is the mental state of the testator at the time of making the Will
Whether there was pressure by others for the Will to be made
Whether beneficiaries of the Will unduly influenced the testator
Whether a beneficiary wrote or typed the Will or was a witness to the will
Whether the provisions of the Succession Act, 1965 were fully followed in providing for a spouse and or children

Validity of Will

This is the basic test of any Will. The Will must be (i) in writing (ii) signed by the testator (iii) there must be two witnesses at the time the Will is made and signed (iv) the witnesses must not themselves be beneficiaries under the Will (v) the testator must be of sound mind at the time the Will is made and understand what he/she is doing.

Any of these grounds can be relied upon to challenge a Will.

Mental State of the Testator

This is a common reason to challenge a Will particularly where the testator was an elderly person. Where a person has a medical condition which can affect their capacity to understand what is happening, but their relatives want a Will to be made, this is still possible under strictly controlled circumstances. For instance, where a person is in hospital or a nursing home and drifts in and out of mental awareness, a doctor can advise a time when the testator fully understands what is happening.

To succeed under this challenge a court will apply the following test:

The testator must fully understand what they are signing and the consequences of the will
Understand the assets the testator has which are being gifted away and the effect of these bequests

Undue Influence

Undue influence is where a person puts pressure on a testator to make a Will and where the person applying such pressure benefits under the Will. Under this challenge, legal advice should be sought as soon as the suspicion becomes apparent. Proof of such pressure needs to be provided. The burden of proof of showing the testator was pressurised into making the Will lies with the party making the challenge.

Spouse and Children of the Testator

The law is very clear on the rights of spouses. The spouse has a legal right to a share of the Will whether the Will provides for this or not.

A child who might feel that they received less than other siblings can make a Section 117 application on the grounds that the Will does not make proper provision for them.

Before initiating such a challenge here it is strongly recommended that a challenger discusses their claim with their solicitor before embarking on such a claim.

MEDICAL NEGLIGENCE Birth Injury

Fri, 01 Jul 2022 14:08:27 GMT

Babies ,when born, can have minor injuries which may not necessarily result in litigation but among the more common injuries are bruising, swelling and fractured bones. Injuries in themselves do not give rise to litigation unless negligence can be established on the part of the doctor or hospital involved.

To establish negligence, evidence must be provided which shows that the injury could have been avoided. This evidence is normally provided by an expert witness who examines the procedure carried out and explains how, if done differently, the injury could have been avoided. However, these cases can be complex, and no two cases are the same. A judge, on hearing the evidence of two expert witnesses with opposing opinions, has to make a ruling which, in essence, depends on how convincing the experts are in their opinions. Such cases are decided on the balance of probability.

Taking the advice of your solicitor is vital in these cases and the sooner you consult with them the better the outcome will be. Delay in proceeding with a claim can harm a case as, over time, peoples’ memories fade and their recollection of events will be nowhere as precise as in the time period following the birth.

Independent medical examination of the baby is crucial for a judge to determine any long-term injury to the baby as a result of the injury where negligence has been proved.

Many of these cases are settled out of court but to reach that stage you need to have your case very well prepared, and all of your medical experts committed to attending court on the day of the hearing.

Your solicitor will guide you on all these matters where they have taken full instructions from you and believe you have an actionable case.

PROPERTY, DEBT - Creditor’s Lien May Not be Valid

Mon, 20 Jun 2022 21:40:10 GMT

In a recent High Court case, the judge refused to remit a debt recovery action to the Circuit Court as he believed an important point of law arose which could only be adjudicated on by the High Court.

The plaintiff, who purchased the Ulster Bank’s interest in the loan, sought to enforce a lien in respect of the debt and claimed the lien was properly registered on the Defendant’s lands. However, the Defendants argued that the lien was not validly registered as the Registration of Deeds & Title Act, 2006, required that any such lien be registered before 31 December 2009. They pointed out that the plaintiff’s lien, in this case, had only been lodged for registration on 31 December 2009 and was therefore invalid.

The judge felt an important point of law arose as to whether it is sufficient for the purposes of the Act that before 31 December 2009 the holder of such a lien merely has made an application to the land registry for registration of the lien as a burden or whether the application for registration should be fully completed before 31 December 2009.

The Defendant was indebted to the plaintiff for a sum in excess of €300,000 and it was important for both parties to leave the issue for the High Court to adjudicate on as its conclusion would determine which one of the litigants would succeed.

Promontaria ( Oyster) DAC v Michael Kean [2021] IEHC 796

MEDICAL NEGLIGENCE Delay in Diagnosis

Mon, 30 May 2022 20:20:12 GMT

The plaintiff, then a child of 18 months, was taken by her mother for hearing tests to the HSE audiological services and was told her hearing in both ears was normal. The plaintiff did suffer from hearing loss and when she was 24 years old sued the HSE for damages based on the errors and delay in the diagnosis of her hearing loss.

Later the plaintiff was brought to a private audiologist who, on examining he, found that there was significant hearing loss in her right ear and some loss in her left ear.

It was submitted to the High Court that the delay in the initial assessment and subsequent problems in her treatment led to significant speech problems incurred by the plaintiff. Her claim was that the HSE failed to properly diagnose her hearing condition at an early stage which caused severe impairment to her hearing in later years.

In 2002 the plaintiff had follow-up private audiological services tests which found there was a moderate to severe loss of hearing in her right ear. Then in 2003 the HSE retested her and found mild hearing loss in the right ear.

After a hearing aid was applied and further testing carried out, it was confirmed that the plaintiff had severe loss of hearing in her right ear and mild loss in her left ear.

The plaintiff has had several hearing aids, but it has not entirely resolved the problem and left her with an inability to hear well.

It was submitted to the court that the plaintiff had suffered due to a failure of early diagnosis and the lack of any appropriate treatment.

The HSE had filed a full defence claiming also that her case was statute barred but the court rejected those arguments. The HSE offered a settlement after mediation and the High Court approved a settlement figure of €850,000. The judge said it was a complex case of causation but was satisfied with the settlement.

Healy v Health Services Executive High Court April 2022

Break Clauses in Shop Leases – Read the small print!

Fri, 29 Apr 2022 09:37:57 GMT

Start up businesses will look for a short term lease but most established stores or offices will have longer leases up to 20/25 years.

It is important these leases contain a Break Clause which allows the tenant (and sometimes the landlord too) an option to break or terminate the lease after 5 or, more typically, 10 years and effectively hand the premises back to the landlord.

It is vital the store owner or office tenant gives his landlord the requisite 3-6 months notice under the Break Clause that he intends to invoke its provisions. It will be difficult for any tenant to diary this for action in 5 or 10 years time, but if a busy tenant forgets about the Break Clause or gives his landlord less than the required notice he will find all his entitlements could disappear and he cannot terminate the lease early.

To avoid this pitfall, any tenant of a shop or office should ask his solicitor or agent to diary ahead the date and timing of this break option.

Any tenant who uses the Break Clause will have to pay any rent and service charge, including arrears, up to date of service of notice. In some cases, depending on the lease provisions, the tenant may also have to pay a premium or once off payment for the right to break the lease.

A tenant may also be liable for necessary costs of repair ( excluding wear and tear ) to the premises before they are handed back to the landlord for re-letting. So before a tenant exercises this Break Clause, he should be aware that rent, service charge, premium and possibly extra costs of repair may also have to be paid by him on the same date.

So any tenant should be careful not to throw away his entitlement to choose to terminate his lease earlier than expected but at the same time be mindful that handing the lease back to his landlord may incur some additional expense.

LANDLORD & TENANT

Fri, 29 Apr 2022 09:36:46 GMT

Rent Review - Avoid Taking on old leases!

A lot of shops are vacant now and will be advertised for letting over the summer.

Many of these stores will have old leases in place and could be offered to a new tenant by way of Assignment of the lease to the new party.

This should be avoided at all costs and a prospective tenant should ask for an entirely new lease from the landlord if at all possible.

Why ? Because an old lease will invariably contain Rent Review clauses under which any review of rent can only be upwards. Under an old lease, the rent can be reviewed and fixed at the same rate as the old rent and therefore the rent remains static. However, it cannot be reduced even if market conditions suggest otherwise.

A store owner who took over an old lease could, all too easily, be paying double the rent than a neighbouring storeowner who was granted a brand new lease with a rent reflecting today’s more challenging conditions.

These changes came in to effect in February 2010 when “Upwards only” rent review clauses were abolished. After this date, all new leases must contain the more tenant friendly clauses under which the reviewed rent may of course be increased but also under which it be decreased to reflect market conditions.

BUSINESS

Fri, 29 Apr 2022 09:35:24 GMT

Purchasing a Business? The importance of Due Diligence

Purchasing a business can be a daunting task and also a huge risk, as many businesses appear healthy while huge liabilities wait to be uncovered.

Therefore it is essential that before reaching an agreement a thorough examination of the legal, commercial and financial aspects of the company to be purchased (or ‘target business’) are carried out so that an informed decision can be made.

This examination is referred to as ‘due diligence’ and is generally carried out by the purchaser’s accounting and legal advisors.

In any due diligence investigation, it is imperative that a thorough accounting review takes place led by an experienced financial advisor. This will involve reviewing audited accounts and future projections as well as examining the company’s tax affairs.

The accounting review will take place alongside an investigation into the target business’ legal obligations.

This will involve your legal advisor conducting a review of all employment contracts, distribution agreements and all other legal documentation pertaining to the company so that a full picture of the company’s rights and liabilities can be made.

Your legal advisor should also examine any property held in the target business’ name. These enquiries should be as stringent as if it were any property transaction, as in most cases it will be unsatisfactory to rely on any warranty given by the seller as part of the purchase agreement.

Due diligence is usually completed by way of a checklist by the purchasers’ legal advisors, made by compiling a ‘due diligence report’.

Compiling an extensive due diligence report is the most effective way to ensure that you have minimised your risk and maximised your chances of success when purchasing a new business, allowing you to make an informed decision before agreeing to the purchase.

WILLS

Mon, 25 Apr 2022 16:51:54 GMT

The Genuine Article or Not ?

If your Will is valid, then your estate will be administered by your chosen Executors in accordance with your wishes.

However if, for whatever reason, your Will is held to be invalid, then you will be considered to have died intestate (effectively without a will), meaning your assets will be distributed according to the Succession Act 1965.

A Will is only valid if it meets all of the following requirements:

It is in writing
The testator (the person making the Will) is at least 18 years old
The testator has adequate mental capacity to make a Will
The testator signs the Will in the presence of two witnesses
The two witnesses then sign the Will in the presence of the testator
The two witnesses do not benefit under the Will (if they do, their gift will fail, although the rest of the Will remains valid)

Failure to comply with these requirements will inevitably invalidate your will.

Some examples of why a will ends up invalid?

Typically, a testator may not realize his/her Will is invalid and so the problems get passed on to his family subsequent to his/her death when the Will is not upheld, and this can lead to disputes and costly litigation.

In many instances simple mistakes regarding the execution of the Will can render it invalid. For example, the testator did not sign it in front of two witnesses who were present with the testator at the same time.

A Will may also be challenged usually by family who either inherit or perhaps, more typically, fail to inherit under the Will. A claim can be made that the testator did not have adequate mental capacity when making the Will, or perhaps was put under pressure or under undue influence by some family members. After a court has heard evidence from all sides it can invalidate the Will in certain circumstances.

How can I avoid all that ?

Make sure to give your solicitors full instructions and comply with all his / her requirements as to properly making your will. If you feel some of your family may contest the Will and allege you lacked capacity to execute it properly or were pressured by one family member to favour them, then arrange to see your GP and have him certify that you are fully compis mentis on the date of signing.

Avoid DIY Wills which result in too many problems afterwards arising from poor draftmanship and lack of clarity. Solicitors charge a modest amount for doing most family Wills and they can also confirm that you were of sound mind when signing the Will, should any issues arise subsequently.

What happens to my estate if my Will is invalid?

If your Will is declared invalid, you are deemed to have died intestate and your assets will be distributed under the provisions of the Succession Act 1965.

The Act creates an order or ranking of succession amongst your remaining relatives. Your spouse or closest blood relations stand to receive the majority of (or all of) your estate. These relatives could be your children, grandchildren, parents, siblings, or nieces or nephews. If you do not have a surviving spouse or any living blood relations, your estate will go to the State. To avoid such an eventuality – you should arrange and execute a valid Will with your family solicitor as soon as possible; it can always be updated or revised again at a later date.

PROBATE

Thu, 31 Mar 2022 11:38:50 GMT

Will or No Will? What are the Consequences?

Making a will is the only way you can be completely certain that your wishes will be carried out after your death. You can choose to leave sums of money or property to whoever you like subject to some restrictions. If you die without making a will – called intestacy- then that decision is made for you under the Succession Act.
You can appoint someone trustworthy and capable of handling your affairs after you die called an Executor. If you die intestate, one of your family will have to apply to the Probate Office to be accepted as your Administrator and this can easily cause family problems.
Making a valid will saves time and money for those left behind. It invariably leads to a faster and cheaper administration of your affairs through a Grant of Probate.
If you have young children, you should always appoint, in your will, what are called “ Testamentary Guardians/ Trustees” or family members who will look after them, and their financial affairs, should you and your wife die at the same time leaving them behind. However, if you and your spouse died without having signed proper wills, then difficulties may arise between family members ending up in court.
Making a will is the only way in which you can reduce any tax (CAT) payable by your beneficiaries by taking advantage of certain reliefs and allowances.
Finally, it is nearly always the case that people making a will leave all their property to their spouse. On the other hand, if you die without making a will, your wife will only receive 2/3rds of your estate under the law if there are children.

PERSONAL INJURIES

Thu, 31 Mar 2022 11:32:49 GMT

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.

COMMERCIAL LEASES

Tue, 15 Mar 2022 08:40:44 GMT

COMMERCIAL LEASES

Forfeiture clauses in shop leases: A trap for the unwary.

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.

CONSUMER LAW

Tue, 15 Mar 2022 08:38:59 GMT

Gift vouchers must be valid for at least five years under law

The Consumer Protection (Gift Vouchers) Act 2019 gave legislative powers to protect consumers on gift vouchers.

There was previously no specific statutory regulation in Ireland of the expiry date or other terms of gift voucher contracts.

As well as the minimum expiry date, the law also bans any terms requiring the full value of a voucher to be spent in one transaction, preventing consumers using more than one gift voucher in a transaction, or requiring the name of the recipient to be provided by the purchaser.

PROBATE

Tue, 15 Mar 2022 08:36:32 GMT

Will or No Will? What are the Consequences?

Making a will is the only way you can be completely certain that your wishes will be carried out after your death. You can choose to leave sums of money or property to whoever you like subject to some restrictions. If you die without making a will – called intestacy- then that decision is made for you under the Succession Act.
You can appoint someone trustworthy and capable of handling your affairs after you die called an Executor. If you die intestate, one of your family will have to apply to the Probate Office to be accepted as your Administrator and this can easily cause family problems.
Making a valid will saves time and money for those left behind. It invariably leads to a faster and cheaper administration of your affairs through a Grant of Probate.
If you have young children, you should always appoint, in your will, what are called “ Testamentary Guardians/ Trustees” or family members who will look after them, and their financial affairs, should you and your wife die at the same time leaving them behind. However, if you and your spouse died without having signed proper wills, then difficulties may arise between family members ending up in court.
Making a will is the only way in which you can reduce any tax ( CAT) payable by your beneficiaries by taking advantage of certain reliefs and allowances.
Finally, it is nearly always the case that people making a will leave all their property to their spouse. On the other hand, if you pass away without making a will, your wife will only receive 2/3rds of your estate under the law, if there are children.

LICENSING / PLANNING LAW

Tue, 01 Mar 2022 10:48:07 GMT

Traffic Congestion a Ground for Concert Licence refusal

Citywest Hotel had sought a licence to hold concerts at its venue. They argued to An Bord Pleanála that the events would attract an older demographic than other music venues. International promoter, Live Nations, had been lined up to manage the concerts. The council had previously declined the application and the license application was appealed to An Bord Pleanála. The reasoning the Council took in declining the licence was that there were concerns the volume of traffic caused by those attending the concerts would cause congestion in the surrounding road network. Transport Infrastructure confirmed the view of the council.

An inspector of An Bord Pleanála told the appeal that they were satisfied that the proposal to convene concerts would be in accordance with permitted zoning however concerns over traffic congestion created a potential problem. It found that the proposed traffic measures would not feature an appropriate provision for car parking to serve the development. Additionally, there was an absence of a safe and efficient means of facilitating drop-off, collection and taxiing journeys alongside other users within the hotel and leisure complex which would in the Board’s view lead to traffic congestion.

Cape Wrath Hotels v An Bord Pleanála

PERSONAL INJURIES

Tue, 01 Mar 2022 10:37:31 GMT

Exaggeration of Injury Rejected by Court

A pensioner was injured while travelling on a bus when it collided with another bus. The pensioner claimed €20,000 from the two bus companies for severe injuries to his neck. The accident happened in 2016 and he claimed that more than five years later that he still suffered intermittent burning pain in his right trapezius area.

The court was shown CCTV of the incident when the collision happened where the pensioner was sitting on the back seat of the bus which showed a gentle swaying of his knees and lower legs at the moment of collision.

The judge was not satisfied that the impact was anything greater than a minimal grazing between the two buses and while the CCTV did not show the head or shoulders of the pensioner, who had his hands on his lap and not braced as he claimed, there was no evidence of sudden movement of any kind by other passengers. Medical evidence for the pensioner seemed to verify the incident shown on the CCTV and was not consistent with a muscle strain that he complained of for several years later. Accordingly, the judge dismissed the case.

The case was heard in the Circuit Court so the loss of the case will cost the pensioner plaintiff a sum of around €20,000. This is the risk people take when litigation is commenced. It is especially important when taking cases to solicitors that proof of injury can be established in a court and that the injury is directly linked to the acts of negligence complained of.

Browne v Bus Eireann and Carrig Coaches Circuit Court (Judge Crowe) January 2022.

DEFAMATION

Wed, 16 Feb 2022 10:25:05 GMT

Delay in Prosecution will Defeat Action

Regardless of the merits of a defamation case, if there is inexcusable delay in progressing it, a court will often dismiss the case. Such was the case in which John Brown, a brother of Dana Rosemary Scallon, issued defamation proceedings against the Irish Independent newspaper over an article it published at a time of a pending prosecution of Mr. Brown relating to an alleged indecent assault. Unfortunately the article referred to a UK news agency which wrongly stated that a warrant had been issued for his arrest. In the defamation proceedings the newspaper denied the defamation, stating that the delay in the case prejudiced it and the balance of justice required the case to be dismissed.

In 2014 Mr Brown was cleared of all charges in relation to the indecent assault.

The defendant denied the article had been published falsely and maliciously. It submitted that Mr. Brown was an adviser to his sister during the Presidential Election campaign, that the article was published in good faith and in the public interest, so it was fair and reasonable to publish it.

The High Court judge ruled that this was a case of inexcusable delay. A jury should not be asked to look back on what was a matter of public interest 10 years ago. The balance fell in favour of the defendant, and he made an order striking out the proceedings.

Brown v Independent Newspapers (Ireland) Ltd High Court (O’Regan J) 12 October 2021

PERSONAL INJURIES

Wed, 16 Feb 2022 10:23:32 GMT

School trip nightmare

A school trip turned into a nightmare for student Kelly Marie Jackson when the top story of her bus was sheared off in a collision with a bridge in the Mulhuddart area of Dublin in January 2019.

Kelly suffered some soft tissue injuries to her hip and shoulder, including biting through her lip in fright just before the collision and also showed symptoms of post-traumatic stress disorder some months following the crash.

Kelly and her friends on the top story of the bus realised the bus was about to collide with the bridge as the tunnel was too low and in fact the entire top story of the bus was sheared off in the crash like the opening of a tin can.

She sued through her mother and as liability was not an issue, the hearing was to assess damages only and the court studied the medical reports submitted on her behalf.

The judge was satisfied her injuries were genuine as was her post traumatic stress disorder but that she had recovered from the trauma very well. He held that an offer of € 58,000 plus costs was a fair one and made an order on those terms.

Kelly Jackson (suing through her mother Anne Davis ) v Eirebus ltd High Court 2021.

FARM SUCCESSION PLANNING

Mon, 07 Feb 2022 10:56:46 GMT

It is of utmost importance to obtain legal advice when it is intended to pass the family farm to the next generation.

There are many matters to be taken into consideration, some of which are:

The financial stability of the elder farm owners on passing over the ownership of the family farm
Decisions on what properties, assets are to be included in the ownership transfer
Whether the elder farmers will have a continuing role in the farm management
Clarity on who is the decision maker in the new arrangement
Whether provision is to be made for other family members
Where they are marital agreements/issues
Where there are other family members, e.g. siblings, is the transfer fair on all family members? If not, and one or more children of the transferring parent are not happy with the new arrangement, they could seek redress through the courts, but this should be avoided.

So before embarking on drawing up plans for handing over the farm, seek legal advice, this will save time and in the end cost.

ROAD TRAFFIC ACCIDENTS

Mon, 07 Feb 2022 10:54:44 GMT

Highway Robbery – The old liability rule returns

A recent Court of Appeal judgment has confirmed that the ancient rule for determining liability for accidents on public roads has certainly not gone away.

The old rule stipulates that if a local Authority repairs a road but makes a botch of it, they will be liable for any accidents caused by their defective work. This is called Misfeasance.

On the other hand, if a public road over the years simply falls into a state of disrepair, the Local Authority cannot be held liable for any accidents arising from the road’s natural state of disrepair over time. This is called non-feasance.

A 64 year old cyclist riding his bike down a public road came to a ramp right up beside a cattle grid but where, unfortunately, the ramp had worn away leaving a small drop or gap between the ramp and cattle grid. He came off his bike suffering a serious ankle injury and sued the county council.

In the high court it was accepted that the ramp/ grid had been in place for many years, but the county council had not interfered with the ramp in any way. It was also not known when the ramp had deteriorated, presumably over several years.

The court held that the county council was liable for the negligent construction of the ramp/ grid by its predecessor, Shannon Development. It ruled that the county council should have been aware of the defect if it had carried out a survey on taking over the road from Shannon Development in 2004 and perhaps should have looked for an indemnity at the time. The high court ruled the county council was liable for injuries suffered by the plaintiff and awarded him € 113, 000 in damages.

Not surprisingly, the county council appealed to the court of appeal who considered fully the old non- feasance rule in the 1902 Harbison case where the rule was established. In that case, the court ruled that failure to maintain a public highway did not give rise to any action against the local authority. However, if the local authority repaired a road but its repairs were defective, then it would be liable.

The court of appeal held that the high court was wrong in finding that the county council was liable for an inherited defect from a predecessor in title. It was an established rule that the public “takes the highway as it finds it” and it found there was no legal basis for the trial judge’s finding.

The appeal court also held that a local authority was not bound in law to inspect a public road and ensure it was free of defects prior to it being formally taken in charge.

Finally, the appeal court confirmed that the Occupiers Liability Act 1995 was not applicable here as it was wrong to suggest the county council was in any way an occupier of the highway.

The court allowed the council’s appeal to succeed and refused to award any damages to the unfortunate plaintiff.

The judgments may have been complicated but the rule remains simple; cyclists and pedestrians: take care on the highways – you may not always be compensated out there

O’ Riordan V Clare County Council & Another 19/ 10 /21 (No. 2019/305 [ 2021] IECA 267)

AGRICULTURAL - Fallen Trees

Thu, 27 Jan 2022 16:13:47 GMT

Bad weather causing trees to fall creates additional headaches for farmers. The owner of the trees is the person liable in law for the damage it causes if negligence of the landowner is proved. Therefore famers and property owners need to monitor trees on their land.

It is vitally important for farmers and property owners to check their lands for dangerous or falling trees. Failure to act on noticing a damaged tree could prove costly.

The law is governed by the Roads Act, 1993, section 70 which provides that the landowner or occupier must take reasonable steps to ensure that any structure on the land is not a hazard or a potential hazard to users of the public road. The key words are ‘reasonable steps’ and if this is shown that reasonable steps were taken then they are on safe ground.

For farmers, hedges too can cause hazards to road users especially cyclists so regular maintenance assists in avoiding accidents and claims.

Farmers need also to be conscious of The Forestry Act, 2014, section 17 as it applies to the cutting down of trees.

This section states that it is illegal to uproot any tree over 10 years old, or cut down any tree of any age, including trees which form part of a hedgerow, without a licence.

The licence may include conditions such as environmental and replanting conditions.

I f any of these issues arise, a call to your solicitor could save a lot of worry.

PERSONAL INJURY

Thu, 27 Jan 2022 16:13:43 GMT

Workplace Accidents

Where workers are required as part of their job to use industrial machinery, the employer is obliged by law under the Safety, Health, and Welfare at Work Act, 2005 to provide workers with safe and properly maintained machinery. Where the machinery is dangerous there is an onus on the employer to provide training for the workers using it. For the employer, proper records of maintenance of the machinery are particularly important especially where there is an injury and/or claim.

Where a court is deciding on claims for injuries arising from faulty machinery, foreseeable accidents will usually work against employers. In this instance, the court could find that an accident might well have been avoided so there is a high duty of care placed on employers where accidents are caused by faulty machinery. Employers should adhere strictly to maintenance of machinery and not cut any corners to save on costs.

A court will expect the employer to have acted sensibly and to have taken all reasonable steps to avoid accidents.

Any signs of faults on equipment should be brought to the employer’s notice immediately. If an employee notices a machine not working properly, he/she should immediately report this to the supervisor otherwise he/she may not secure any damages in the event of injury.

WILLS

Thu, 27 Jan 2022 16:13:42 GMT

Will of elderly dying person contested on grounds of testator being of unsound mind

A recent decision of the High Court considered an appeal from the Circuit Court where the will of a dying bachelor farmer had been challenged on the grounds that the farmer was not of sound mind when he made his will. The siblings of the farmer had claimed in the Circuit Court that their brother was not of sound disposition when making the will and the Circuit Court judge found this to be the case. A nephew of the deceased farmer, whom had been left the farm in the will, appealed the decision to the High Court.

The deceased farmer’s sister attended to the affairs of her dying brother when he was hospitalised suffering from cancer. She had asked a solicitor to visit her brother for the purposes of taking his will. The solicitor drew the conclusion that the farmer was too ill to make the will so he left. Another solicitor visited the farmer three days later at the request of the sister’s husband and this solicitor decided the farmer was of sound mind to make his will and did so.

There were suggestions that the nephew, who inherited the farm, had a physical row with the deceased previously and it was submitted this could have influenced the farmer in leaving the farm to him. The High Court judge dismissed this as being an influencing factor. The High Court judge over-ruled the Circuit Court judge and found that the farmer was of sound mind when making his will.

The judge in this case accepted the opinion of the solicitor in deciding the farmer was of sound mind when making the will but in the opinion of this writer, where the testator is in hospital that judgment should be made by the doctor, not a solicitor. However, if a solicitor calls to a sick persons’ home then the opinion of the solicitor would be correct.

Contesting wills can be expensive and the costs comes out of the estate thus reducing its value, and it is best to be careful in these circumstances and if the sick person is under medical care, seek medical advice in determining the mental state of the person making the will.

MEDICAL NEGLIGENCE

Thu, 27 Jan 2022 16:13:40 GMT

Right to Access Medical Records

It is quite common that people encounter difficulty in accessing their own medical records, but the fact is that you have a legal right to them.

Hospitals and health care providers are obligated under law to provide medical records to patients upon request and to do so in a timely manner.

Where there is resistance to producing medical records, a letter from your solicitor will remind the health provider or professional of their legal obligations.

If the patient requesting their records received care from the HSE as a public patient, the HSE are still obligated by law to provide the records upon request. In most cases there should be no charge but there are occasions where a charge will be made. However, there are exceptional cases where sensitive information will be disclosed and where access can be denied.

GDPR Rules

Under this EU legislation, healthcare providers are required to maintain accurate and up-to-date records. Where in the particular circumstances, the release of such records might pose a risk to the applicant's health, the record request can be denied.

Also the Freedom of Information Act provides for access to medical records except for private healthcare providers.

Private Healthcare Providers

Here you should look at the terms of the contract and if access is provided for then just cite the contract when making the request.

Court Cases

Where medical records are required for a court hearing, your solicitor can simply request them and, failing that, seek a court order requiring their production.

COMPANY LAW Directors Statutory Duties

Thu, 27 Jan 2022 16:13:39 GMT

In Ireland, company directors must act in good faith, honestly and reasonably and in the interests of the company. They must also have regard to “the interests of the company’s employees in general, as well as the interests of its members”. As we set out below, there are serious implications where directors choose to ignore these duties.

Company directors are obligated by statute to always act in the best interests of the company, and this includes the company’s employees as well as its shareholders. Failure to do this will often result in the director being disqualified from holding office for lengthy periods.

The High Court issued one of its longest disqualifications in a recent case (Kirby v Rabitte). In this case the director of the company kept no books or records, and the court drew the conclusion that the company was engaged in illegal activity. The court took a serious view of this and ruled a 14 year and three month disqualification on the director.

The court, in reaching its decision, took into consideration the need to protect the public from directors who have a history of leaving creditors unpaid, in this case the Revenue Commissioners.

In general, a core element in such cases is whether the director acted ‘in good faith’ . If a director can demonstrate to the court that they were indeed acting in ‘good faith’ then it is unlikely such proceeding would succeed.

RIGHTS OF WAY

Tue, 25 Jan 2022 12:47:35 GMT

The Circuit Court considered an application for an injunction from a Wexford vet to prevent the buyer of land from using an entrance made in a ditch near his clinic. The purchaser of the land said the freshly made entrance to her 30 acres of agricultural land was legitimate as it was reviving an old gateway. Counsel for the vet applicant disputed this stating that planning permission would be required for any such development as the R720 road is more than four metres wide. While the purchased land had been owned by the applicant vet, it had been purchased from a receiver. It was claimed by the purchaser that a right of way leading up to the property had been blocked to prevent her gaining access. Affidavits were produced from two local residents stating there had never been an entrance where the new gate had been erected. It was submitted that the entrance posed a danger to traffic. Counsel for the purchaser stated that if there was no entrance to the property that the property would be ‘sterile’.

The judge was wary of consenting to the application for an injunction as it would in effect thwart the purchaser in accessing the land. In declining down the application he said he was leaving the matter to be resolved by the planning authority, Wexford County Council.

Rights of Way are usually contentious and it not uncommon for judges to defer a decision to another body. It is of utmost important when purchasing or selling land with a right of way, that legal opinion is taken first on the validity and implications of Rights of Way.

Browne v Cowman, Circuit Court (Judge Martin Nolan).

steen-oreilly

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