LATEST NEWS

26/11/2024

High Court of Ireland delivered its judgment today (432 pages) in the long running litigation concerning 

“The defendants developed a student accommodation scheme at Gardiner Street, Dublin. By the time the scheme had been completed in 2017 they earned profits after tax of €11.33m. The opportunity for the development came to the first named defendant, Patrick Cox on 28 February 2014, when he met with an architect, Mr. John Fleming, who had information about the Gardiner Street site and its suitability for student accommodation
which he shared with Mr. Cox. At that time Mr. Cox was employed in the O’Flynn Group of companies, of which the sixth named Plaintiff was one. He was also providing services to non-group companies, including the first named plaintiff, Victoria Hall Management Limited (“VHML”), and others. He had come to know Mr. Fleming during his time working for the
O’Flynn Group. The plaintiffs claim that at the time when he learned of and took the Gardiner Street opportunity, Mr. Cox held a senior and trusted position in them and that he was under a duty to disclose to them such an opportunity and not to divert it and the profits earned to himself and others. “

The Court ruled PATRICK COX “acted in breach of fiduciary duties to VICTORIA HALL MANAGEMENT LIMITED, PALM TREE LIMITED, GREY WILLOW LIMITED, ALBERT PROJECT MANAGEMENT LIMITED and O’FLYNN CAPITAL PARTNERS” and was “ordered to account to those plaintiffs for all the profits earned in the Gardiner Street scheme together with interest. If and to the extent that the PATRICK COX is not entitled to or does not receive distributions of such profits, the remedy for his breach of fiduciary duty in diverting the scheme from the plaintiffs will be an order for the payment of damages for breach of duty. “

The Court further held that ” The second defendant Rockford Advisors Limited was the vehicle used by the first defendant both as a recipient of payments from the plaintiffs, and as part of the structure for the construction and development of Gardiner Street. The orders I intend to make against the first defendant will extend to this company.”

The claims against the other defendants LIAM FOLEY, FOLEY PROJECT MANAGEMENT LIMITED, EOGHAN KEARNEY, CARROWMORE PROPERTY LIMITED, CARROWMORE PROPERTY GARDINER LIMITED and CARROWMORE PROPERTY GLOUCESTER LIMITED were dismissed.

The Court further ruled

“The calculations of discounts and interest were all made on the basis of what would be appropriate if an award of damages were made. It is my intention to make an order that the first and second defendants hold the profits of the Gardiner Street scheme, totalling €11,333,000, on trust for the first five plaintiffs and an order that those defendants account to
and pay the plaintiffs such amounts together with interest. I shall, if required, hear submissions as to whether the same interest and other calculations which were provided bythe experts on the basis of calculating damages apply where the declaration is that defendants account as trustees of the profit.”

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10/11/2024

The Irish legislature share the views of the late William Shakespeare (c. 23 April 1564 – 23 April 1616) as expressed so eloquently in his Romeo and Juliet play:

Juliet:

‘Tis but thy name that is my enemy;/Thou art thyself, though not a Montague./What’s Montague? It is nor hand, nor foot,/Nor arm, nor face, nor any other part/Belonging to a man. O, be some other name!/What’s in a name? That which we call a rose/By any other name would smell as sweet;So Romeo would, were he not Romeo call’d,/Retain that dear perfection which he owes/Without that title. Romeo, doff thy name,/And for that name which is no part of thee/Take all myself.”

The Supreme Court of Ireland in a recent case ruled that, despite its name, section 18 of the Non-Fatal Offences against the Person Act 1997 “governs both fatal and non-fatal offences alike”.

“Summing up, therefore, I consider that the better interpretation of s. 18 of the 1997 Act is that it applies indistinctly to all offences, so that it governs both fatal and non-fatal offences alike. This interpretation enjoys an internal coherence and is one which preserves the unity of the defences available in criminal law. It is, after all, a general principle of the criminal law that the scope of general defences – such as self-defence – should not depend on the nature of the specific offence with which the accused has been charged. One can equally say that the applicability of this defence should not rest on what might prove to be either fortuitous or even accidental factors. More especially this interpretation avoids the potential for anomaly and confusion if the scope of s. 18 were to be held to be confined simply to non-fatal offences.”

Another example is the Criminal Procedure Act 1865 which applies to both civil and criminal proceedings.

3/11/2024

The recent sudden tragic death of father of one the late Liam Payne brings to mind the Australian case of Brendan Russell and the death of a 29 year  old Australian mother of one (anonymised as “CC”) who was found dead on 12 April 2017 (“At around 6 am on 12 April, CC’s eight year old daughter found CC in the loungeroom. She was unable to wake her. “)

Russell was  re-sentenced last November 2023 to 7 years in prison, with a non-parole period of 5 years and 3 months (eligible for release in December 2026). Russell was a body modifier and through advertising and social media, offered to perform body modification procedures and shared images and videos of body modification procedures he had previously performed. His business at Transition also included a barbershop, tattooing and piercing.

Russell  “was not at any time a medical practitioner, authorised professional, medical student or midwifery student (as those terms are defined in s 45 of the Crimes Act NSW).””

Russell faced 3 criminal charges with “Count 3: One count of manslaughter by criminal negligence contrary to s 18(1)(b) of the Crimes Act.”

Count 3 arose out of the insertion by Russell on 20 March 2017 of a silicon snowflake shaped mould under the skin of CC’s right hand. From around late March 2017, several lay witnesses made observations of CC, including that she appeared to be in pain and that the wound on her hand seemed to be infected.

The Supreme Court of New South Wales – Court of Criminal Appeal judgment of 3 Nov 2023 states as follows:-

“On 12 April 2017 at approximately 1 am, CC spoke with her neighbour on her balcony for about 10 minutes. Her neighbour observed that she didn’t sound as slurred but that her hand was more swollen than before and seemed worse. CC told her that it was “just so painful”. At around 6 am, CC was found deceased. 

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222. MA [sic member of staff who worked with Russell] gave evidence that she had concerns about the procedures the Appellant was doing. She said he would Google procedures and try to learn how to do it. She also said he would “muck around doing procedures” and make everything funny, including mid procedure, and “make inappropriate jokes about things”. MA and others in the shop would talk clients out of procedures the Appellant had suggested and would say things to him like “you can’t just learn how to do something like that [referring to online research]” or “you can’t do that because of infection and sterilisation”. The Appellant was doing procedures that were “too full on” such as cutting off people’s fingers.

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The Appellant [sic Russell] agreed that he owed CC a duty of care. The trial judge held that the Appellant breached this duty by inserting the implant in circumstances where proper care was not taken to avoid future infection, not referring CC for proper medical attention when her hand was presenting as infected, manipulating the implant in such a way as was likely to cause further spreading of infection, inserting a further implant which would have been likely to increase the risk of infection especially in circumstances where it was likely that proper care was not taken to avoid future infection and not telling CC she should seek proper medical attention as a matter of urgency. Her Honour went on to find that a significant or substantial cause of CC’s death was  sepsis  (and that multi-drug toxicity may have contributed to the speed of her death) and that consequently, the negligent acts and omissions of the Appellant operated singularly or together as a substantial cause of CC’s death. Moreover, the Appellant’s breach of his duty of care was found to be so significant as to be considered deserving of a criminal response.”

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2/11/2024

The National Council for the Blind of Ireland (and the 54,000 people with sight loss in Ireland noting the HSE contract pays €6.69million but the cost of delivery is €10.5 million leaving a gap between the two that the NCBI fill through fundraising and retail activities) will be relieved at the recent decision of the High Court of Ireland which decided their retail shop in Virginia (“The relevant property is one of the Appellant’s 130 charity
shops, with the result that this application has consequences reaching beyond this case.”) is not liable to rates. The Court held:

“94. I have concluded that the [sic Valuation] Tribunal applied an incorrect test in assessing whether the relevant property is or is not rateable and has failed to follow relevant authority of the Irish SuperiorCourts in this regard. In particular, the Tribunal has wrongly focused on what the relevant property is being used “as” (retail), rather than asking itself “why” the Appellant is engaging in that use or its purpose in so doing (to fund charitable activities). The approach of the Tribunal in this regard is contrary to a line of Irish authority culminating in the decision of the High Court in St Vincent’s Healthcare.

95. The Tribunal has also failed to have regard to the fact that the Appellant is a registered charity with an identified charitable purpose of fundraising through its retails shops in support of the charitable activities of the NCBI Group, with the result that its activity or use of the property is entirely in line with its identified charitable purposes as reflected in clear terms in its Memorandum of Association…”

30/10/2024

Zsolt Rezmuves was involved in three Road traffic accidents and succeeded in securing damages of €50,000 for his injuries as a result of these 3 collisions/. The High Court declined to award him €94,804.00 for the “Future cost of spinal cord stimulator”.

Rezmuves successfully defeated an application by the defendants under Civil Liability and Courts Act 2004 s26 “If, after the commencement of this section, a plaintiff in a personal injuries action gives or adduces, or dishonestly causes to be given or adduced, evidence that (a) is false or misleading, in any material respect, and (b) he or she knows to be false or misleading, the court shall dismiss the plaintiff’s action unless, for reasons that the court shall state in its decision, the dismissal of the action would result in injustice being done.”

The High Court of Ireland also stated as follows:

“It was unfortunate that the plaintiff took upon himself research into areas of medical and legal expertise because it became ever more apparent as the trial meandered to its conclusion, that the plaintiff was unable to assimilate a perspective other than his own regarding the proceedings and his physical, psychological and psychiatric condition.  As already found under the s. 26 issue, the Court has not been satisfied that the plaintiff consciously sought to mislead the experts and this Court.  Likewise, the plaintiff has failed to satisfy this Court that he is now suffering from PTSD as described by Dr. Leader for the first time in 2023.”

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26/10/2024

Under Article 41.3 of the Constitution of Ireland, 1937 the Irish State “pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.”

By contrast the Supreme Court of Ireland (unanimous judgment of the five  Judges sitting) described “marriages of convenience” in the recent case concerning Indian national Sangeeta Rana and Pakinstani national Lehrasib Ali (Both have subsequently been granted permission to remain in Irleand under a different scheme, aimed at the regularisation of long-term undocumented migrants) in the following terms:

“The particular bad conduct found to have been engaged in by the respondents [sic Rana and Ali] did not result in criminal convictions. Nonetheless, it must be seen as having been at a very high level of gravity. It was in fact a criminal offence under the regulations to assert immigration entitlements on the basis of fraudulent means, including either a marriage of convenience or false or misleading documentation. Furthermore, it could be said that in this particular context the use of fraudulent means is an attack on the integrity of not only this State’s immigration system but also, in a broader sense, the EU immigration system. Each of the respondents used the system to claim EU rights to which they were not entitled.”

Sangeeta Rana was found by the Minister to have entered into a marriage of convenience in order to obtain a derived right of residence under European Union law

“Her permission was due to expire on the 29^th October 2014. In the month of September 2014, she married a Lithuanian citizen, and on foot of that marriage to a citizen of the European Union she was granted a residence permission in March 2015…valid for 5 years”.

Whilst there was no finding that his marriage was one of convenience Pakinstani national Lehrasib Ali was found to have submitted misleading documentation relating to his spouse’s presence and economic activity in the State, in order to conceal the fact that she had departed from the State and was not exercising her EU rights here. In support of his application, Lehrasib Ali furnished payslips purporting to show that his Estonian wife had been working for a particular company between December 2013 and March 2014. “However, within a few weeks of that date Mr Ali was informed that to the knowledge of the Minister his wife was no longer living in the State. He was further informed that it was proposed to revoke his permission. Mr Ali’s solicitor replied on his behalf, stating that Mr Ali’s wife was indeed living with him at that time and was working in the State. The Minister responded on the 18^thDecember 2014, enclosing information received from the Estonian embassy. Mr Ali’s wife was living in Estonia with her partner and two children (one born in July 2012, and one born in May 2014). She had filed a tax return stating that she was resident in Estonia during 2013. Based on this information, the Minister had reason to believe that Mr Ali had submitted documentation that was false and misleading as to a material fact and that this was a fraudulent act within the meaning of the regulations and the Directive. His submissions were invited, but it does not appear that any were sent.”

The Court urged immigration “decision-makers” to

“state clearly and concisely the reasons for their decisions, so that there can be no confusion about what was considered relevant and what was not. In the context of the general immigration system, it may be desirable that decisions such as these should refer expressly to matters such as character testimonials and explain why they are not seen as outweighing the bad conduct. To do so would, apart from the fact that it will be clearer to the individuals concerned why they did or did not obtain the outcome they desired, render challenges to decisions on grounds of inadequate reasoning or engagement less frequent.“

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The Court of Appeal in England and Wales in a recent Judgment also expressed a reservation about a marriage in child welfare proceedings born to Afghanistani parents. The father was now living in the UK and the appeal Court allowed new evidence to be admitted in circumstances where his evidence to the Home Office was found to be in conflict to that given during the family law proceedings. The Court stated:

“For the avoidance of doubt, I would also add that, even if we were applying the criteria set out in Ladd v Marshall, they are comfortably satisfied in this case. As was observed by Phillips LJ at the hearing, there is no reason to suppose that this material was not available to the father through his immigration solicitors but he did not disclose it. Mr Glaser’s suggestion that the father did not disclose it because he was not asked to do so does not assist the father. It is the effect of the evidence which is critical and Mr Glaser did not seek to suggest that there had been any obligation on the mother to procure and produce this evidence. Conclusion In summary, the mother must be given permission to adduce the new evidence which undermines the judge’s findings to such an extent that none of them can stand. The mother’s appeal must therefore be allowed and the matter remitted for rehearing before a Family Division Judge allocated by the President of the Family Division. It will be for that judge to decide the nature and scope of the rehearing. By that I mean that he or she is not bound by the case management decisions made to date which dealt with the evidential scope of the hearing.” (emphasis added)

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14/10/2024

“First, there has been a century of persistent and consistent under investment in the court system, not only in judicial numbers, as I have outlined, but also in the ancillary staff required in order to support the operation of an efficient court system and in the type of physical infrastructure and IT facilities that would be regarded as standard in any modern business. And secondly, there is a causal connection between investment in the court system and beneficial outcomes in terms of reducing waiting times, delays and increasing efficiencies and the quality of decision making for all court users and incidentally, reducing the stresses on judges and court staff in the system. The scale of investment in the system, and therefore the scale by which we still fall short, can be illustrated by a quick rule of thumb calculation for which it’s possible to estimate that the budget of the Court Service and the salaries and pensions of Judges from the Central Fund would, by my estimation, keep the health service funded for less than a week or the education system, approximately a week or so. It goes without saying that those sectors face their own unique demands and costs, and I’m not for a moment suggesting that they are not vital state services but it is a legitimate question to ask whether this comparison is not an instructive reflection of the relative importance or is or ought to be a reflection of the relative importance of the court system in the State, in particular having regard to its essential function in the operation of the State which I have discussed today. On the positive side, that calculation shows that an investment that would go perhaps almost unnoticed in other sectors by the State could have a really significant benefit and even transformative impact on the legal system. We have, I think, at the moment a generational opportunity to address this, to stand back and take a fresh look at the type of model of Justice system that we wish to have. One that provides speedy access to justice and a fair decisions to all litigants who engage with it. One that contains the best of the system we have inherited but is well adapted to today’s world. The Justice system model that we can take pride in and will ensure in the future and performance function in supporting the type of rights based democracy of checks and balances that we as a people deliberately chose a century ago and ever since, and which we should value, if anything, even more today”

Chief Justice of Supreme Court of Ireland Donal O’Donnell at the Opening of Legal New Year Ceremony 2024

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09/10/2024

Older Persons Information Hub  report that 23,449 persons aged 65 years and over reside in nursing homes in Ireland.

(ref: https://www.cso.ie/en/releasesandpublications/hubs/p-opi/olderpersonsinformationhub/housing/nursinghomesandcommunalestablishments/)

Census 2022 states

“There were 5,149,139 people in the State on Sunday, 03 April 2022”

Based on these figures this demographic (persons aged 65 years and over residing in nursing homes) represents some 0.45% approx. of the population in Ireland i.e. less than 1%.

In her evidence to the High Court of Ireland as an expert witness for Allianz plc.  Professor Mary Horgan – who was a  member of NPHET during the COVID 19 pandemic- opined to the Court that this demographic (persons aged 65 years and over residing in nursing homes) made up 60% of the deaths during Wave 1 (which ran up to 19^th April 2020)  of the pandemic.

 “I think also Ireland, in the first wave, is quite different from other countries. And this has been acknowledged by HIQA, by the HSE, by the HPSC, that the bulk of our deaths, 60% to be precise, in Wave 1 were concentrated in nursing homes, which weren’t actually open to communities at the time. So it’s a very unique element of our transmission dynamics in Ireland that we had a very high proportion of cases in healthcare workers – and that’s not just because they were prioritised for testing – but we also saw it in hospitals and we saw it in nursing home facilities as well”

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24/09/2024

“Knowing your client/patient” is an essential skill in all professions but particularly law and medicine where the stakes are high. Reading a judgment recently raised an interesting issue for lawyers acting for “self made” clients and whether a higher duty of care is owed to this demographic. Our canine community contributed (through their suffering and analysed reactions)  to the development of the concept of learned helplessness with the Court of Appeal accepting the evidence of the plaintiffs’ psychiatrist that he was more prone to this condition due to his background and consequently having experienced an “uncontrollable stressor” (criminal proceedings for assaulting a tenant followed by a conviction which was subsequently overturned upon the emergence of new eyewitness evidence) he appeared to have succumbed to “learned helplessness” in other aspects of his life where there may have been options for him to help himself but like one of the dog groups in the experiment he had become “passive” in the face of his stressors both  controllable and uncontrollable.

16/09/24

“We are now on the threshold of a newer movement, with a newer hope and a new inspiration. (ref James Larkin)”

In a “workers rights” case dealing with the relationship between the intentions of the parties to a collective agreement and the intentions of the parties to employment contracts into which the terms of the collective agreement are incorporated 367 unionised Tesco workers with “retained pay“* – which constituted approx 32% to 39% of their wages and the express retained pay term was contained in a collective agreement signed on 18 Feb 2010 – will be celebrating their resounding victory in the UK Supreme Court majority judgment (3:2) delivered on 12/9/2024 which ruled they cannot be “fired and rehired” on foot of an express term in their employment contract** as such a term is not a free standing term but qualified by an implied term arising from the “circumstances in which the right to retained pay was agreed”.

By 2021, Tesco had wished to bring retained pay to an end.

The Court, after an in depth analysis of the law and factual matrix, ruled as follows:

“On that interpretation of the relevant clauses, Tesco cannot be prevented from exercising its power to terminate the claimants’ contracts unless a term can be implied in the contracts to the effect that Tesco’s right to terminate the contract is qualified, so that it cannot be exercised for the purpose of depriving the employee of the right to retained pay. I am in no doubt that such a term can indeed be implied. The circumstances in which the right to retained pay was agreed make it clear that it was intended as an inducement to experienced employees to relocate rather than accepting redundancy and receiving the redundancy payments to which they were otherwise entitled. That intention would be completely undermined if the contract permitted Tesco to dismiss the employees whenever it pleased in order to avoid paying retained pay. No reasonable person in the position of Tesco or the relevant employees could have intended the contract to have that effect.“

*”What does ‘Retained Pay’ mean?  If you transfer to a newly opened site in Tesco Distribution you will be on a new contract of employment. However, any difference in value between your old contract and your new employment contract will be protected by a concept called ‘Retained Pay’ which remains for as long as you are employed by Tesco in your current role. Your retained pay cannot be negotiated away by either Tesco, USDAW or USDAW Shop Stewards. Your retained pay will increase each year in line with any annual pay rise. All elements of retained pay will count towards the calculation of any current and future benefits. You will also benefit from any future improvements in terms and conditions at the new Depot. ref: “Q & A” document, which was disseminated by Tesco on 20 February 2007.”

**”It is also convenient to mention at this point that the rights of the employee and employer to terminate the contract by giving notice – with the relevant notice periods specified – were expressly set out in the individual contracts of employment. It was also there specified that no notice was required in a case of gross misconduct by the employee.”

5/09/2024

Caroline Fanning solicitors was delighted to attend Law Society Of Ireland Well within the Law festival last night attended by Law Society President and Director General and former DG and many colleagues and friends. The highlights of the evening included the unveiling of the new elephant “Themis” adopted by the Law Society of Ireland, listening to inspirational talks from Brent Pope , Stuart Gilhooly, the retired Supreme Court of Ireland Judge Marie Baker and all the other speakers. https://www.elephantintheroom.ie/about-elephant-in-the-room

16/08/2024

Watching RTE The Complaints Bureau last night raised an interesting “lacuna” for Irish consumers specifically the gentleman/online over 50s dating website and alleged debt of just over €300. The programme advised viewers the new Consumer Rights Act 2022 came into force on 7/11/2022 and as the online dating contract predated 7/11/2022 it could not be relied on. This 2022 Act repealed “Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees”. However Directive 1999/44  Date of end of validity: 31/12/2021 so it is somewhat moot for an Irish piece of legislation to profess to repeal legislation that has ceased to have any validity some 11 months earlier (31/12/2021) and it is at least arguable the gentlemen in question could rely on the successor to Directive 1999/44 being Directive (EU) 2019/771 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the sale of goods, amending Regulation (EU) 2017/2394 and Directive 2009/22/EC, and repealing Directive 1999/44/EC (Text with EEA relevance.) – which replaced Directive 1999/44 – as otherwise due to the fact this Dir 2019/771 was not implemented until Nov 2022 placed Irish consumers in a prejudicial position compared to their EU consumer counterparts which cannot have been the intention of the European Parliament and Council.

9/8/2024

The Burning of Bridget Cleary: A True Story would be familiar to many law students and similar superstitious based “trying to expunge evil spirits” from a child were mooted (and rejected) in the trial of unspeakable cruelty to a child by her parents who came to Ireland and acquired refugee status with the child  (subsequently joining them under EU family reunification programs) now unable to do any tasks for herself due to the severity of her injuries (including brain injuries) inflicted on her by her mother with the Supreme Court of Ireland recently upholding the jury conviction of serious harm against the father and dismissing his appeal (based mainly on fact that he was not present in the home at the time of the assault) with the Supreme Court noting he too had previously assaulted and abused the child . All the children of the family have since taken into care.

7/8/2024

High Court of Ireland Judge Nuala Jackson shows her masterfulness in the area of family law in her recent judgment concerning warring parents of 2 year old twins born from a donor egg implanted in the mother and sperm being provided by the father wherein she deftly analysed the facts and the law and put in place a four weekly access schedule giving good access to the father and giving him temporary guardianship urging the mother to set aside her opposition to the father playing a role in the children’s lives. She noted multiple complaints to various Tusla/Gardai by the father against the mother and noted none of these authorities were concerned with Tusla intimating hostile litigation was behind the complaints.

6/8/2024

IN the recent decision concerning the Directive 2013/33/EU, also known as the Reception Conditions Directive, the High Court of Ireland held the Irish Human Rights and Equality Commission had properly invoked their statutory entitlement provided for in section 41 of the Irish Human Rights and Equality Act, 2014 to bring the proceedings but confined its reliefs to declaratory orders.

The jurisprudence from the Court of Justice of the EU specifically the Opinion of Advocate General Richard de la Tour delivered on 3 September 2020 stated “Standards for the reception of applicants that will suffice to ensure them a dignified standard of living and comparable living conditions in all Member States should be laid down. The harmonisation of conditions for the reception of applicants should help to limit the secondary movements of applicants influenced by the variety of conditions for their reception.”

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The onerous obligations arising from the Decision Support Service manifest not only in putting Enduring Powers of Attorney in place but also on the Decision Making Representatives with the High Court of Ireland recently acceding to the DSS’s application (Sections 36 and 38(14)of the Assisted Decision Making (Capacity) Act 2015 Act) to vary the order made on 21 March 2024, by replacing Ms. K (unable to act due to personal circumstances) with Mr. F (A registered Psychiatric Nurse, Accredited Mediator, and member of the Irish Auctioneers and Valuers Association, with relevant experience in the HSE, voluntary bodies, and the PTRB) as the DMR for the relevant person.

20/7/2024

High Court of Ireland upholds Information Commissioner’s finding that RTE are permitted to access records relating to the compliance of certain of their employees with the disclosure obligations that the Ethics in Public Office Act, 1995 imposes on them.

The Court stated

“Section 35(1)(b) of the Freedom of Information Act prohibits disclosure of information that would breach a confidence provided for by an agreement or an enactment or otherwise by law. Section 35(2) disapplies that where the record is prepared by a person in the course of the performance of their duties, unless it would be a breach of confidence provided for by an agreement, an enactment or otherwise by law, owed to a third party. The Commissioner found that the records sought by RTE were prepared by HSE employees in the course of the performance of their duties and that s. 35(2), therefore, disapplied 35(1). They then proceeded to consider whether the
disclosure sought would breach a duty of confidence provided for by agreement or enactment or otherwise by law, owed to a third party. Having regard to the employee’s duty pursuant to s. 18(2) to furnish a statement of interest, the Commissioner said they failed to see how the release of the record could constitute a breach of a duty of confidence owed to third parties………

 I find no basis in fact for the HSE’s contention that furnishing information about their employee’s compliance, or non-compliance, could render a third party related to the employee vulnerable to a line of inquiry in relation to their personal financial affairs that could not otherwise have commenced.

Secondly, even if I am wrong in that, and there is merit in the HSE’s “train of inquiry” submission, it is clear that no such submission or argument was made to the Commissioner “

18/7/2024

In Hussien v Chong Fook Kam [1970] AC 942 it was said

“Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: “I suspect but I cannot prove” Suspicion arises at or near the starting-point of an investigation of which the obtaining of prima facie proof is the end.”

Caroline Fanning Solicitors has assisted 4 – 5 clients in putting in place Enduring Powers of Attorneys (EPAs) using the Decision Support Service  (DSS)which is now termed “registering an EPA” – under the old system registering equated to the “activation” of the EPA upon losing mental capacity (incidentally activation of the EPA is now called “notifying”). It is irrefutable the DSS process is resulting in a myriad of issues for its demographic users (mainly the over 50s who are trying to prudently plan for their futures) and one of the most notable aspects of the DSS is what may be called “suspicion” e.g. requiring 2 witnesses to oversee the signing of the attorney declaration forms (one witness was deemed sufficient under the old system) and this safeguard is still not enough for the DSS who further require a further layer of bureaucracy with the attorneys who then must be digitally set up to accept their role electronically using mygov/DSS verification.

It is also notable that the scope (and hence liability) of the medical professional in their “Statement of Capacity” is much narrower than that of the legal professional in the “Legal practitioner statement”

“I have interviewed xx and made any enquiries necessary for the purposes of making a statement as required by 60(1 )(b) of the Assisted Decision-Making (Capacity) Act 2015 (as amended).

I am satisfied that the donor understands the implications of creating the enduring power of attorney.

I am satisfied that the donor is aware that they may vary or revoke the enduring power of attorney prior to its registration, and on or after its registration until the attorney notifies the Director of the Decision Support Service under section 7 IA of the Act that the donor lacks capacity in relation to one or more of the relevant decisions which are subject of the enduring power of attorney and this notification has been accepted by the Director of the Decision Support Service.

I have no reason to believe that the donor is executing the instrument a result of fraud, coercion or undue pressure.”

Medical professional “Statement of Capacity“

I undertook an assessment of capacity of xx in accordance with section 3 of the Assisted Decision-Making (Capacity) Act 2015 (as amended) (the Act), for the purpose of making a statement of capacity as required by the Act.

I have discussed the implications of creating the enduring power of attorney with the donor. I am of the opinion that at the time the power was executed, the donor had the capacity to understand the implications of creating the power.”

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16/07/2024

Evidence of manipulation of data in the Irish fishing industry weighing practices led to proper implementation of EU legislation (Council Regulation (EC) No 1224/2009 –known generally as “the Control Regulation”; one of the objectives of which is to render effective the policy of allocating fishing quotas) governing this resulting in a “Notice to Weigh on Landing” on 12^th October, 2020″ and monitored quayside weighing of the fish catch on landing control pursuant to Article 60(6) of the Control Regulation of an Irish fishing vessel which was complied with “under protest” as noted by Sea Fisheries Protection Authority “SFPA” using the weighbridge.  Weighing results for the mackerel on the quayside differed by some 10-11% to results in the Killybegs fish processing centre (noting the (a) the fish had not been dewatered and (b) the herring had not in any event been separated from the mackerel for the quayside weighing) and ultimately led to unsuccessful judicial review proceedings by the relevant fishing parties/vessel owner seeking to quash the SFPA’s (i) the “Notice to Weigh on Landing” on 12^th October, 2020; (ii) the Official Pelagic Weighing Record required by the Authority to be completed by the third Applicant on 12^th and 13^th of October, 2020; (iii) the decision made by the Authority on or after the 12^th of October, 2020 requiring the first and third Applicants to adjust the landing declaration incorporated in the electronic logbook and the sales note previously completed by the first and third Applicants; (iv) the Inspection Report made by the Respondent with regard to the first, second and third named Applicants on 3^rd of November, 2020; (v) the report of the Authority to the European Commission made on or about 15^th November 2020 in purported compliance with Article 33(2) of Control Regulation and a broad range of related declaratory relief.

In determining the Appeal brought by the fising parties/vessel owner the Court of Appeal of Ireland formed a preliminary impression that they agreed with the High Court and that the decision of the CJEU in Commission v. United Kingdom (Case C-582/08, EU:C: 2010: 429 “the UK VAT case” was “clear authority for the proposition that it is not open to this Court to distort or vary the perfectly clear language of Article 61(1) through use of some wider teleological interpretation” but decided on 11/7/2023 to refer the following issue to the CJEU for a preliminary ruling before reaching a final decision pursuant to the Article 267 TFEU:

“Where a Member State has exercised its right to derogate in Article 61(1) from the provisions of  Article 60 of Council Regulation (EC) No. 1224/2009 of 20 November 2009 (as amended) establishing a Community control system for ensuring compliance with the rules of the common fishing policy in accordance with the terms of a control plan approved by the Commission of the European Union, may the competent authority of that Member State duly designated for the purposes of Article 5(5) of that Regulation nonetheless insist that the master of an authorised shipping vessel ensure that any quantity of fisheries products first landed in that Member State is weighed in the presence of officials of that authority before being transported elsewhere from the place of landing in accordance with the provisions of Article 60(6) of that Regulation?”

13/7/2024

Judge Mary Marlowe Sommer wearing blue latex disposable gloves and using a scissors cut through an evidence bag containing ammunition not disclosed to Alec Baldwin’s defence team and proceeded to ask questions of the Crime Scene Tech (or CST as she said she liked to be called). This undisclosed evidence handed into law enforcement on 6 March 2024 (but tagged to a  different case) was the catalyst that led to the dismissal “with prejudice” of the involuntary manslaughter charges against Mr. Baldwin who was visibly emotional in the courtroom when learning he was a free man and would not face any further charges. Kari Morrissey, a special prosecutor leading the New Mexico state’s case against Baldwin, herself got into the witness box and gave evidence under oath that she assumed the ammunition in the bag was one and the same as that in a previous photo emailed to her and thus irrelevant in her opinion (without having seen it). This case highlights the importance of a persons constitutional rights to fair procedures and full disclosure and the duty of the Court to uphold these rights.

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“Fraud it is said unravels everything” as Pakistani national Muhammad Nasir Yaqub said to have been working in a Londis shop and living in Dublin 15 discovered when the Court of Appeal of Ireland ruled he could be deported and noted his “oral argument as to the fairness of the process quickly became bogged down in an inability to differentiate between the requirement for precision and an insistence on irrelevant detail.“

The Appeal Court upholding the High Court of Ireland’s decision ruled:

“On 5^th October, 2020 the appellant’s application for a residence card was exposed by the Garda National Immigration Bureau as having been fraudulent.  The appellant’s fraud was not limited to the submission of a fraudulent employment contract.  The appellant’s admission that he had been using his brother’s PPSN number for five years necessarily meant that the case which he had repeatedly made to the Minister was fraudulent and that much of the documentation submitted to prop up that lie was fraudulent.

70. The Minister was perfectly entitled to take the view that the entire application was tainted by fraud.  The appellant was given due notice of the opinion formed by the Minister of the application and of the basis on which it had been formed.  The appellant was afforded the opportunity to address the Minister’s concerns but chose not to avail of it.  
71. There was no challenge to the Minister’s decision to revoke the appellant’s residency status which had been procured by fraud.
72. The appellant’s argument that the Minister’s initial finding – that his brother was lawfully resident in Ireland and exercising his EU treaty rights – somehow survived her later finding that the application was fraudulent is untenable.  For good measure, the proposition that the appellant’s brother was exercising his EU treaty rights between June, 2015 and September, 2016 is irreconcilable with the appellant’s admission that he, the appellant, was abusing his brother’s PPSN from at least October, 2015.”

As the Supreme Court of Ireland stated obiter in a recent decision discussing fraud and misleading statements:

“De Smith’s Judicial Review of Administrative Action (4^th Edn, Stevens & Sons 1980), in which it is observed at page 408 as follows:

“The superior courts have an inherent jurisdiction to set aside orders and convictions made by inferior tribunals if they have been procured by fraud or collusion – a jurisdiction that is now exercised by the issue of certiorari to quash. Where fraud is alleged, the court will decline to quash unless it is satisfied that the fraud was clear and manifest and was instrumental in procuring the order impugned. In most of the reported cases in which the application has succeeded, perjured evidence had been given either by the party in whose favour or at whose instance the order had been made or by one of his witnesses acting in collusion with him, and the guilty party had been convicted of, or had confessed to, perjury before the application of certiorari was lodged; and it has been doubted whether the court would allow any application founded only upon the giving of false evidence by one of the applicant’s own witnesses. It is thought, however, that it is open to a court to quash a conviction or order whenever the tribunal has been materially misled by fraudulent assertions. Where it is alleged that the parties have acted in collusion to mislead the tribunal as to the true facts, an application for certiorari to quash may be brought by the Attorney General, who would also be the appropriate applicant if the tribunal had itself acted in collusion with parties to defeat the ends of justice.”

97. While that is a description of the position in the neighbouring jurisdiction, it is a useful observation as to the effect of fraud on an order.”

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10/7/2024

The High Court of Ireland was reported as saying yesterday in a medical negligence case it was important for the Court and public to get feedback.

It is now nearly 9 years since the High Court of Ireland agreed with the defendants in their motion to set aside service of the notice of plenary summons for want of jurisdiction and ruled that it lacked jurisdiction (under Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters) to determine the merits of the claims of CJ Gaffney; who has tirelessly advocated in the intervening 9 years for redress  outside the Courts process since for his losses suffered from the purchase of a fishing trawler whose stated stability values subsequently proved to be at variance with subsequent stability values Mr. Gaffney obtained rendering the vehicle unfit for his purposes.

It may well now be the case that some of the Judicial findings (in the case of C.J. Gaffney Ltd -v- Germanischer Lloyd SE & ors [2015] IEHC 721 (12 November 2015) no longer represents good law in this Jurisdiction in light of the Judgment of the Court of Justice of the European Union (CJEU) (First Chamber) 9 July 2020 in the Manipulation of data relating to the emission of exhaust gases from engines produced by Volkswagen which dealt with the same provision (or its equivalent) of the Brussels Regulations relating to jurisdiction.

In the 2020 Volkswagen ART 267 ruling the CJEU distinguished Marinari and Dumez cases (relied on by the High Court of Ireland in its ruling) as follows:

The CJEU stated

“30.  Consequently, while those vehicles became defective as soon as that software had been installed, the view must be taken that the damage asserted occurred only when those vehicles were purchased, as they were acquired for a price higher than their actual value.

31.      Such damage, which did not exist before the purchase of the vehicle by the final purchaser who considers himself adversely affected, constitutes initial damage within the meaning of the case-law recalled in paragraph 26 of the present judgment, and not an indirect consequence of the harm initially suffered by other persons within the meaning of the case-law cited in paragraph 27 (sic DUMEZ) of the present judgment.

32      Moreover, contrary to the view taken by the referring court, that damage does not constitute purely financial damage either.

34.   Thus, rather than purely financial damage, the present case concerns material damage resulting from a loss in value of each vehicle concerned and stemming from the fact that, with the disclosure that software which manipulates data relating to exhaust gas emissions was installed, the purchaser received, in return for the payment made to purchase such a vehicle, a vehicle which is defective and, accordingly, has a lower value.

35     It must therefore be concluded that, where vehicles equipped by their manufacturer with software that manipulates data relating to exhaust gas emissions are sold, the damage suffered by the final purchaser is neither indirect nor purely financial and occurs when such a vehicle is purchased from a third party.”

Whilst this evolution in the interpretation of autonomous EU law comes too late for Mr. Gaffney – and may not have yielded a different result based on his pleaded case on negligent and fraudulent misrepresentation and the particular facts of his contract having being made in the Netherlands – it may assist other litigants who seek to sue in the Irish courts for vehicles purchased in Ireland but manufactured in another EU member state. 

9/7/2024

Latest edition of Law Society of Ireland Gazette has interesting article analysing High Court of Ireland Judge Liam Kennedy (former solicitor) decision in Byrne & Ors v Arnold (Approved) [2024] IEHC 308 (05 June 2024)  which references following 2 cases of relevance.

Gary Keville Transport Ltd v MSC [Mediterranean Shipping Company] Ltd & Anor (Approved) [2022] IEHC 544 (21 September 2022)

“Section 169(1)(g) 

51. GKT also relied on section 169(1)(g) which refers to “where the parties were invited by the court to settle the claim (whether by mediation or otherwise) and the court considers that one or more of the parties was or were unreasonable in refusing to engage in the settlement discussions or mediation…”
52. GKT argues that after Allen J “hinted” at mediation in October 2021 GKT’s solicitor wrote an open letter suggesting mediation but there was no reply at all to this between the 28^th October and 3^rd December. MSC pointed out that there was in fact a settlement meeting and that GKT can not rely on the fact of a mediation not having taken place when a settlement meeting occurred. I think this is correct. The section expressly countenances efforts to settle being taken by way of mediation or settlement discussions and where the latter occurred and where there is no evidence that either party did not bona fide take part I can not conclude that either party was “unreasonable in refusing to engage in the settlement discussions or mediation”.

and Atlantic Shellfish Ltd & anor -v- The County Council of the County of Cork & ors [2015] IECA 283 (07 December 2015)

“35. Assuming that the judge answers the first question in favour of the applicant, the court must then move to consider any other relevant circumstances. In my view these may include a consideration as to whether the application is made bona fide in the belief that the issues in dispute can be disposed of and that the applicant is genuinely willing to engage with proposed ADR rather than one made for the sole purpose of improving the applicant’s negotiating position given that the effect of the order will be to trigger the cost provisions of r.1B of O.99 and the apprehension that necessarily follows for the party who for good reason may reject the court’s invitation.
36. It follows, that the court should not make the order sought if satisfied that the application is brought by a party who knows that an invitation from the court will for good reason be refused and/or where satisfied that the applicant has no real interest in the ADR proposed but is motivated to make the application knowing that the refusal will allow them proceed to trial while, so to speak, holding the sword of Damocles over their opponent until the very end of the litigation.”

Section 21 of the Mediation Act 2017 Act provides

21. In awarding costs in respect of proceedings referred to in section 16 , a court may, where it considers it just, have regard to—

(a) any unreasonable refusal or failure by a party to the proceedings to consider using mediation, and

(b) any unreasonable refusal or failure by a party to the proceedings to attend mediation,

following an invitation to do so under section 16 (1).

9/7/2024

Caroline Fanning Solicitors stands shoulder to shoulder with the criminal barristers strike action – the first day scheduled for 9th July 2024 and the second for 15th July 2024. In the words of the now retired Judge of the Supreme Court of Ireland  Francis Murphy in his much cited High Court review of legal costs case Smyth v Tunney 1993 

“Again an argument based upon the gravity of the issue is not entirely convincing. If that argument were sound presumably legal fees in criminal cases would be far higher than those in civil cases and I understand that this is not the case. “

Or as more eloquently put by Henry Joy (1766- 1838) – cousin of  the United Irishmen leader Henry Joy McCracken  and whose removal from the Bench had been unsuccessfully sought by Daniel O’Connell- in a review of Taxation of legal costs case whilst Chief Baron of the Irish Exchequer (1831- 1838)

“We consider the Attorneys of this Court Gentlemen. We therefore think they should be paid as Gentlemen.”

3/7/2024

The Court of Appeal of Ireland dismissed the Appeal and affirmed the High Court of Ireland’s ruling in favour of Julian Moroney And Damien Murran (As Joint Liquidators Of GTLK Europe Dac (In Liquidation) & anon- two Irish-based Russian State-owned leasing firms) in proceedings brought against the entities’ parent JSC over attempts to seize commercial aircraft worth an estimated US$2bn. 

The primary assets of GTLK comprise 37 commercial aircraft – currently in the Russian Federation and apparently under the control of JSC (Joint Stock Company “State Transport Leasing Company”) – collectively valued for insurance purposes at in excess of $2bn. The Liquidators considered the prospect of recovering any of these aircraft remote and have made a claim against the insurers of the aircraft before the courts, both in Ireland and in England and Wales.

https://www.rte.ie/news/business/2023/1219/1422949-liquidators-win-aircraft-leasing-high-court-case/

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The Iraqi invasion of Kuwait began on 2 August 1990 and marked the beginning of the Gulf War. After defeating the State of Kuwait on 4 August 1990,  Iraq went on to militarily occupy the country for the next seven months. This war also spawned litigation over aircraft.

In May 2000 Kuwait Airways Corporation (KAC) petitioned the House of Lords to vary its order of 24 July 1995. The variation sought was that Iraqi Airways Co (IAC) should not benefit from sovereign immunity for the period 9 August 1990 to 16 September 1990. The ground of the petition was that, in respect of its activities in this period, IAC had obtained the judgment of the House by fraud. Evidence of IAC witnesses was perjured. On 27 July 2000 the House dismissed the petition. The appropriate procedure was for KAC to commence a fresh action. On 16 October 2000 KAC started new proceedings and subsequently prevailed in the “perjury action” in respect of a certain number of the aircraft.

27/6/2024

In Hague Convention child abduction case Court of Appeal of Ireland (2:1) refuse to order return to Sweden of children influenced in part by views of 13 year (conveyed through her assessor) who wishes to remain in Ireland as she is happy here.

“I also take into account that it might in and of itself be damaging for this child to have the experience of this Court ordering her return in circumstances where she has strongly voiced her objection to this course of action.As I have said, the exercise of discretion is a difficult one in the present case…. Having regard to the factors mentioned above, I have, and not without reluctance, come to the view that the interests of the children would be best served in this case if the Court were to overturn the High Court order for their return to Sweden, thus enabling the children to stay
in Ireland for the moment, and pending any further decision of the Swedish court (being the court of habitual residence) as to where they should live in the assessment that will take place in the future pursuant to Article 29 of the Regulation.”

26/6/2024

In a very lengthy judgment spanning 115 pages Supreme Court of Ireland dismisses appeal of Caolan Smyth convicted of attempted murder on James Gately (sustained a head injury but whose life was saved by his bulletproof vest) on 10 May 2017 at a petrol station on the Clonshaugh Road, Dublin 17 – in resolving a “novel” issue ie  whether mobile telephony traffic and location data retained and accessed in accordance with certain Communications (Retention of Data) Act 2011 provisions,  subsequently found to be incompatible with EU law, is admissible in evidence in a criminal prosecution.  The attack had been captured on CCTV and was also witnessed by other customers. The Special Criminal Court had admitted the traffic and location evidence.

” (12) If, as Quirke (No 2) seems to suggest, the backstop is properly understood as being directed at more general considerations of fairness, no basis for excluding the evidence arises here. The community’s interest in the effective adjudication of the case against Mr Smyth and Mr McAreavey on its merits weighed decisively in favour of the admission of the evidence and it is the exclusion of that evidence rather than its admission that would bring the administration of justice into disrepute. Considerations including the nature and probative value of the evidence, the fact that it was gathered in accordance with the 2011 Act, the view taken by this Court in Dwyer of the lawfulness of the retention regime created by the Act, the gravity of the crime being investigated and the limited and targeted nature of the access obtained are all significant factors weighing in favour of the admission of the evidence. “

The Supreme Court stated the case had “generated significant controversy between the parties and has led to the intervention before this Court of the Irish Human Rights and Equality Commission (IHREC)” who supported Mr Smyth’s arguments against the admissibility of (what can only be called compelling) “traffic and location evidence”. 

25/06/2024

High Court of Ireland agree with “Coimisiún na Meán – Ireland’s new commission for regulating broadcasters and online media, and supporting media development” – that online safety codes apply to Reddit INC. who made a determined effort to persuade the Regulator these safety codes should not apply to their site.

Coimisiún na Meán is the competent authority in Ireland for the purposes of the Revised AVMS Directive (Directive 2010/13/EU as amended by Directive (EU) 2018/1808 (the “Revised AVMS Directive”) which was implemented in the State by the Broadcasting Act 2009 as amended by the Online Safety and Media Regulation Act 2022 ).

It will be interesting how these online safety codes are enforced as Reddit does not incorporate any meaningful authentication of its users with it being possible to create a profile on this site in seconds with no email verification/authentication.

“330.          Video content can be incidental in relative terms and nonetheless essential to a functionality of the platform.  Where the objective of the Revised AVMS Directive is the provision of effective protection against harmful content, I am satisfied that the Respondent’s conclusion that Reddit requires to be regulated as a VSPS under the Revised AVMS Directive on the basis of the information available to itis fully sustainable on a proper application of the legal test to the facts as established on the evidence before the Respondent.”

21/06/2024

Unless Aer Lingus passengers are informed of the cancellation at least two weeks before the scheduled time of departure, including in the case where the air carrier, at least two weeks before that time, communicated that information to the travel agent via whom the contract for carriage had been entered into with the passenger concerned and the passenger had not been informed of that cancellation by that agent within that period, they are entitled under EU261 to compensation amounting to:

(a)     €250 for all flights of 1,500 kilometres or less;

(b)    €400 for all intra-Community flights of more than 1 500 kilometres, and for all other flights between 1 500 and 3 500 kilometres;

(c)     €600 for all flights not falling under (a) or (b).

19/06/2024

Consumer protection rights derived from EU laws are again in the news in the context of potential delays to Aer Lingus flights due to work to rule of indefinite duration starting next week. 

Article 6 of Regulation No 261/2004 (“EU261”) provides that, in the event of a long delay to a flight, the operating air carrier must offer to assist and take care of the passengers concerned.  EU261 provides for compensation for passengers not only when they are denied boarding, but also when their flight is cancelled. It does not provide that the carrier may escape such obligations in the event of extraordinary circumstances (to include strikes) which could not have been avoided even if all reasonable measures had been taken.

Consumers who purchased their flights as part of a “package holiday” and/or linked travel arrangements (LTAs) who may decide to seek remedies under the Package Holidays legislation (Directive (EU) 2015/2302) should be aware that they will likely be met with a defence from the travel agent/organiser seeking to avoid liability and/or limit their liability  for damages caused by delay pursuant to the Montreal Convention (an integral part of the European Community legal order since 28 June 2004).  Where successful this Montreal Convention defence contains limitation of liability provisions limiting each passengers’ entitlement to damages to 4150 Special Drawing Rights.

Article 3(6) and recital 16 of EU261 state that it also applies to flights within a package tour, except where a package tour is cancelled for reasons other than cancellation of the flight. EU261 also states that the rights granted under EU261 do not affect the rights granted to passengers under the Package Travel Directive. Travellers thus have, in principle, rights in relation to both the package organiser under the Package Travel Directive and the operating air carrier under EU261. 

EU261 rights are considered public law rights and Package Holiday directive rights are private law rights (can be enforced in the courts). Compensation obtained under EU261 and the Package Holiday directive rights are to be offset against each other to avoid overcompensation.

However, it is uncertain in claims made under the Package Holiday Directive whether the package organiser/travel agent or the operating air carrier ultimately has to bear the cost of their overlapping obligations and resolving this issue will depend on the contract between the  travel agents and carriers and the applicable national law. The High Court of Ireland have held that where a contract between the  travel agent and carrier is not incorporated into the contract between the travel agent and consumer it is open to the travel agent and carrier to amend its terms post ipso facto:

“it is a first principle of the law of contract that the parties are at liberty to agree the variation, including the abandonment, of any of the terms thereof.”

The High Court of Ireland further stated the the consumer “has no locus standi to enforce the terms of a contract to which she is not a party,”

As such it is difficult to see how travel agents can be regarded as legitimus contradictors in this issue given their potential exposure to liabilities under the Package Holiday Directive and also the fact they can under Irish law legitimately change the terms of their contract with the air carrier to the detriment of the consumer who will not be able to do anything about this.

In the words of Lord Hobhouse “It cannot be disputed that there are important changes in the parties’ relationship that come about when the litigation starts. There is no longer a community of interest. The parties are in dispute and their interests are opposed. Their relationship and rights are now governed by the rules of procedure and the orders which the court makes on the application of one or other party. The battle lines have been drawn and new remedies are available to the parties. (emphasis added)”

It is also reductive to talk of this potential disruption to peoples holidays in monetary terms as the value and benefits of a holiday to someone cannot be adequately assessed in solely monetary terms.

In the words of the Court of Justice of the EU:

“Lastly, all modern legal systems attach ever greater importance to annual leave. 22. Furthermore, the Directive, and in particular Article 5 thereof, is designed to offer protection to consumers and, in connection with tourist holidays, compensation for non-material damage arising from the loss of enjoyment of the holiday is of particular importance to consumers. “

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High Court of Ireland refers Michael Flatley dispute over insurance cover for Castlehyde to arbitration in accordance with the contractual terms. In the area of motor trade law arbitration clauses are also common place in SIMI template contracts and Caroline Fanning Solicitors with the assistance of Michael P. McGrath SC has succeeded in defeating applications to refer matters to arbitration for Irish Consumers before former Circuit Court Judge Gerard O’Brien. However his decision was subsequently quashed on a Judicial Review by the motor dealer. Ref

http://www.bailii.org/ie/cases/IEHC/2019/H161.html

The reasoning by the High Court in the Flatley case did not expressly deal with the leading case on the topic in the Court of Justice of the European Union which provides that 

“However, a provision derogating from the legal position of the consumer under national law will not necessarily be treated as unfair. The imbalance must arise “contrary to the requirements of good faith”. That will depend on “whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to such a term in individual contract negotiations” 

One other interesting aspect of this judgment is that it excludes the nomination of the “solicitor” legal professionals from acting as arbitrators confining nomination to barristers legal professionals only.

“19. The Arbitration Clause, which has remained the same in all renewals of the Policy, states:
“This insurance is governed by the laws of Ireland. Any dispute arising out of or relating to this insurance, including over its construction and validity, will be referred to a single arbitrator in Dublin in accordance with the Arbitration Act then in force. The arbitrator will be an experienced member of the Irish Bar. If agreement cannot be reached on a suitable arbitrator, one will be chosen by the Chairman of the Bar Council of Ireland.”

8/6/2024

Ghana national who “In February 2020 flew to Dublin and applied for asylum at the airport using a false passport” ordered to pay costs of the Irish State in his failed judicial review to quash the decision of the International Protection Appeal Tribunal (“the Tribunal”) which affirmed a recommendation by an International Protection Officer (“IPO”) that the Minister reject his applications for refugee status and subsidiary protection.

F. B. C. had been married with children but now asserted he was a gay man who had been persecuted for being a homosexual in Ghana. However the relevant authorities and High Court found this assertion not credible

“Finally, there was no evidence before the Tribunal that during his time in Ireland the applicant had taken even the most tentative steps towards exercising his freedom to live openly as a gay man or even to explore what that life might be like”.

“Finally, he had not submitted any documentation relating to his age, his background, his identity, his nationality, his travel routes, his identity or travel documents. On that basis, the Tribunal found it difficult to afford the applicant the benefit of the doubt, and came to the conclusion that it should affirm the recommendation of the IPO.”

07/06/2024

George Orwell wrote “1984” in 1948 some 3 years after the end of World War II. From a legal perspective in today’s modern world the potency of language to control resonates. The overriding and fundamental principle in the area of legal costs is that they remain at the discretion of the Court.

The Courts Act 1981 (as amended) section  17 contains so called “mandatory” provisions which “on the face” appear to try to fetter this discretion. It is well settled law that “shall” depends on the context and is open to interpretation and does not bind the Court in the exercise of its discretion and is not to be taken as always meaning mandatory.

“…The cases to which the defendants have referred the court are cases involving mandatory procedures laid down as part of an administrative process, and cannot in those circumstances be called in aid of their submissions under this heading. Section 68 is not part of an overall scheme created by the Act. Rather it is a “stand alone” section designed to put in place a number of requirements, intended to provide greater protection to clients of solicitors in the matter of costs, but are not intended as a substitute for the statutory role of the Taxing Master who is charged with the task of ensuring that a client is only charged appropriately for services rendered, upon a Bill of Costs being presented for taxation. The client’s right to have all costs taxed in this fashion is the ultimate protection available, and the Taxing Master is fully empowered to take all relevant matters into account when performing that task, including the power to attach such significance to the absence of a section 68 letter as he deems appropriate in any particular case. There is of course also the right of a party dissatisfied with the determination of the Taxing Master to seek a review of the taxation by the High Court.”

Hogan and Morgan’s “Administrative Law in Ireland” 2nd ed. at page 361 et seq. Under the heading “Formal and Procedural Requirements” states:-

“Whether a statutory provision which on the face appears to be obligatory is to be regarded truly mandatory or is merely to be regarded as directory in nature, depends on the statutory intent and whether compliance with the provision can fairly be said to be essential to the general object intended to be secured by the Act.”

Primacy, though not total supremacy, has to be given to the actual and literal words of any statute; Bell and Engle, Cross – Statutory Interpretation, 3rd Ed. (London, 1995) pp. 1-20

There has been a recent Court of Appeal decision overturning a High Court case where the Judge stated he could not deviate from the statutory terms of section 17 in the exercise of his costs discretion. In this case we see also how the choice of language used in legislation plays a vital role in a citizens understanding of its meaning and “access to Justice” ie

—

The Court of Appeal of Ireland have interpreted the above section as follows:

“Section 15 of that Act abolished all existing defences to actions in defamation, unless such defences were preserved by the provisions of the Act itself. “ 

4/6/2024

The Court of Appeal England and Wales has ruled proceedings for civil contempt are “extra-territorial”  against the director of a foreign company which has instituted proceedings in their jurisdiction but has not complied with an order of the court where the director is a foreign national and outside the jurisdiction.

1. The appellant, Sheikh Abdullatif Abdullah Al Shelash (“Sheikh Abdullatif”), is the Managing Director of Dar Al Arkan Real Estate Development Company (“DAAR”) and a director of Bank Alkhair BSC (“BA”), companies respectively incorporated in Saudi Arabia and Bahrain. The application for committal was brought against DAAR, BA and Sheikh Abdullatif by the respondent to this appeal, Kroll Associates UK Ltd (“Kroll”). It was brought after a without notice injunction obtained by DAAR and BA against it and a number of other persons was discharged by Andrew Smith J on 12 December 2012 (“the discharge judgment”). The judge discharged the injunction because he found that DAAR and BA had breached their duty to make full disclosure and had also failed to comply with an undertaking, reflected in the order, to preserve two hard drives and the data on them, and to deliver the hard drives to their then solicitors in London.^[1]

ref: Dar Al Arkan Real Estate Development Co & Anor v Refai & Ors [2014] EWCA Civ 715 (23 May 2024) which contains a very interesting analysis of the law.

03/06/2024

The European Union have recently (April 2024) revised Directive (EU) 2015/2302 which replaced Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours to strengthen “consumer protection rights”. Perhaps in the overall context of the application of this EU consumer protection legislation (“not technically foreign law” despite having its own “autonomous” language and concepts – ref Cheshire North and Fawsett Private International Law, 15th edition Chapter 7) it may be more useful for the European Union to repeal it in its entirety. The reason for same is illustrated in the case of English claimant/plaintiff “Dr Arabella Wagenaar” who had to pay nothing (£0.00) to Weekend Travel Ltd  despite losing her “package holiday” case .

“On 19^th September 2013, HH Judge Iain Hughes QC dismissed the claimant’s claim against the defendant and the defendant’s claim against the third party after a lengthy trial. He gave judgment on costs on 31^st October 2013 after receiving written submissions and refusing an oral hearing. He ordered (a) that the claimant should pay the defendant’s costs, but that such order was not to be enforced against the claimant pursuant to the provisions of CPR 44.13 and 44.14, “

This is in stark contrast to an Irish losing “EU consumer of a package holiday” Plaintiff served with a bill of costs where Total Costs Claimed = €73,021.40 (fully amenable to adjudication/enforcement) with one of the defendants being a English registered company who could have been sued in England giving the plaintiff the real tangible benefit of the Qualified One-Way Costs Shifting (“QOCS”) introduced into CPR by Rules 44.13 to 44.17 in April 2013 as a result of the reforms that were proposed by Sir Rupert Jackson’s Review of Civil Litigation Costs Final Report (the “Jackson Report”)(as Dr Arabella Wagenaar benefited from) now in place in England rather than the “notional” benefit of availing of EU consumer protection principles which in many cases are merely aspirational. 

This Irish consumer plaintiff was then served with a second Bill of Costs for losing an Appeal where the Total Costs Claimed €57,695.00.

Where no enforcement of the first High Court bill (as in England) any incentive to appeal would of course have been reduced.

Total aggregate costs €130,716.40 for Irish consumer whilst the English based consumer faced no enforcement whatsoever – both suing under EU CONSUMER PROTECTION LEGISLATION. 

This corresponds to working for nearly 3 years (based on average annual wage in 2022*) just to pay a (pre adjudicated) legal costs bill for losing a consumer package holiday case ref:

*JUDGMENT OF Mr. Justice Twomey delivered on the 15th day of December, 2022 in Cahill v Forristal; O’Riordan v Forristal (Approved) [2022] IEHC 705 (15 December 2022) para 101

“based on the average wage of €864.32 per week/€44,945 per annum – CSO statistical publication of 29th November, 2022). “

It should be noted that the English holiday maker Dr Wagenaar only sued the travel agent and it was the travel agent who joined the supplier of services as a Third Party and the travel agent was ordered to pay the supplier of services legal costs with the England and Wales Court of Appeal  holding Dr Arabella had no liability for the third party supplier of services’s legal costs. Whereas the Irish consumer did opt to join the third party in this case as a co-defendant which is not a necessary step. However the overriding principle remains the same. Consumers should resist any pressure from the travel agent (and/or its legal advisers) to join the “supplier of services” as a co-defendant. In the words of Lord Hobhouse “It cannot be disputed that there are important changes in the parties’ relationship that come about when the litigation starts. There is no longer a community of interest. The parties are in dispute and their interests are opposed. Their relationship and rights are now governed by the rules of procedure and the orders which the court makes on the application of one or other party. The battle lines have been drawn and new remedies are available to the parties. (emphasis added)”

The views of the Competition and Consumer Protection Commission in Ireland appear to be silent on this issue.

IN CONTRAST again we see in England the Consumers’ Association (ref https://www.which.co.uk) referred to in a Supreme Court case in the following terms:

“the Consumers’ Association through Mr Butcher advanced a number of telling points. By most people’s standards £85 is a substantial sum of money. Mr Butcher reminded the court by way of comparison that the basic state pension is £115 per week. There may be many reasons why the user of a car park in a retail park may unintentionally overstay by a short period…..”

25/05/2024

Judge Madeline Singas delivers a very compelling dissent judgment in the Harvey Weinstein appeal where she is strongly critical of the majority verdict which acquitted Weinstein ordering a retrial and was of the view the admitted “Molineux” testimony of the 3 other unrelated women (narrowed down from 100 women interviewed by the People) was necessary to give context and met the requisite requirement of going to “intent”.

“While the majority’s holding may, at first glance, appear to endorse a utopic vision of sexual assault prosecution in which a victim’s word is paramount, the reality is far bleaker. Critically missing from the majority’s analysis is any awareness that sexual assault cases are not monolithic and that the issue of consent has historically been a complicated one, subject to vigorous debate, study, and ever-evolving legal standards (see People v Regan, 39 NY3d 459, 475-482 [2023, Singas, J., dissenting]). By ignoring the legal and practical realities of proving a lack of consent, the majority has crafted a naïve narrative: that within the most fraught and intimate settings, intent is readily apparent, and issues of consent easily ascertained. This conclusion deprives juries of the context necessary to do their work, forecloses the prosecution from using an essential tool to prove intent, ignores the nuances of how sexual violence is perpetrated and perceived, and demonstrates the majority’s utter lack of understanding ofthe dynamics of sexual assault. Because New York’s women deserve better, I dissent.

The Molineux rule—created by this Court— has never been static. Instead, its use has evolved over time to meet the challenges of complex criminal prosecutions. Unfortunately, in the context of sexual assault, that evolution lapses today with a decision that has all but ended the use of Molineux evidence in such cases. I fully join Judge Cannataro‘s dissent but write separately to highlight how the majority’s determination perpetuates outdated notions of sexual violence and allows predators to escape accountability

With today’s decision, this Court continues to thwart the steady gains survivors of sexual violence have fought for in our criminal justice system (see People v Cerda, 40 NY3d 369 [2023 ] [reversing a first-degree sexual abuse conviction against a child victim by rejecting the trial court’s application of the Rape Shield Law]; Regan, 39 NY3d 459 [reversing a first-degree rape conviction on an expanded application of pre- indictment delay doctrine and dismissing the indictment]). Forgotten are the women who bear the psychological trauma of sexual violence and the scars of testifying again, and again. This erosion of precedent, born from a refusal to accept that crimes of sexual violence are far more nuanced and complex than other crimes, comes at the expense and safety of women. Until we recognize and account for these differences, we cannot claim to dispense fairness and justice for all. “

The Guardian newspaper had previously reported on 30 Jan 2020 ref

https://www.theguardian.com/film/2020/jan/30/harvey-weinstein-black-cube-new-york-times

as follows:

“The jury in the New York rape trial of Harvey Weinstein has heard that the once-powerful movie mogul employed the Israeli private investigation firm Black Cube to try to squash a New York Times article that blew the lid on sexual misconduct allegations against him and sparked the #MeToo movement,

Dev Sen, a corporate lawyer at the prestigious New York law firm Boies Schiller Flexner, told the court that his company had acted as go-between connecting the beleaguered movie producer to Black Cube. The private detective firm has a staff largely consisting of alumni of the Israeli intelligence agency Mossad.

Under questioning by Manhattan prosecutors, Sen said that on 11 July 2017 – three months before the New York Times came out with its bombshell article revealing that Weinstein had paid off multiple women over decades to bury their sexual harassment complaints – Boies Schiller signed a contract with Black Cube. The deal was sealed under the instructions of Weinstein.

The jury was not given details about the nature of the contract. But in legal argument in court on Thursday out of the earshot of jurors, key details of its contents were discussed.

Lawyers read out elements of the contract. One excerpt said Black Cube was employed to “provide intelligence which will help the client’s efforts to completely stop the publication of a new negative article in a leading NY newspaper”.

The contract also included a bonus clause under which Black Cube would be paid $300,000 if they actually succeeded in foiling publication of the Times article.

During heated legal argument, the lead prosecutor Joan Illuzzi-Orbon argued that the contract “shows that the defendant was concerned about an article coming out and he was looking for Anabella Sciorra to be investigated”. Sciorra is one of six women who feature in the Weinstein rape trial…..

…The Black Cube contract was first reported by Ronan Farrow of the New Yorker, who revealed that the Israeli firm, on Weinstein’s dollar, deployed a number of investigators using false identities to befriend women accusing the movie titan of sexual misconduct and extract information from them.”

———————————-

 24/5/2024

Mr Selman Turk successfully appealed against an order made by Sir Anthony Mann committing him to prison for 12 months as a result of five breaches of an order for disclosure that Sir Anthony found proved to the criminal standard. A sixth alleged breach was not proved to that standard.

On 22/5/2024 England and Wales Court of Appeal opted to “go down the road of mercy rather than justice” and suspend the prison sentence of Selman Turk for 3 months beginning on the date of its judgment (22/05/2024). If at the end of that period there is still substantial non-compliance by Mr Turk with his disclosure obligations, then the sentence may be activated.

The Court weighed in the balance (a) the fact that Mr Turk was in fact incarcerated for approximately three weeks until he was released following the grant of bail (the equivalent of a six-week sentence); (b) the fact that the proceedings are ongoing, Mr Turk has no legal representation, and that there will be undoubted difficulties in attempting to conduct his defence from prison and (c) most importantly, it will give Mr Turk a last chance to comply belatedly with his disclosure obligations, which will be harder for him to do if he is in prison.

The Court cited Templeton Insurance Ltd v Thomas [2013] EWCA Civ 35 ] Rix LJ. In Templeton the judge had imposed an immediate prison sentence for breaches of a freezing order. Having considered a number of authorities and principles, on appeal to this court Rix LJ said at [44]:

“In these circumstances, subject to issues of personal mitigation and the absence of any finding of actual harm, I do not consider that there is anything wrong with the sentences of immediate imprisonment which the judge has handed down, or with their length. The breaches of the freezing order were committed in the context of serious commercial frauds: they were deliberately undertaken, almost immediately, in a brazen attempt to avoid the consequences of the potential discovery of those frauds; they were persisted in over a significant length of time; and they amounted to nothing less than an attempt to remove the impeached business of Motorcare from the restraint of the court’s freezing order into clear open country where the phoenix of Motorcare Elite could fly with impunity.”

  He continued at [49]:

“In my judgment, serious as these unregretted, unpurged, contempts have been, and meriting the sentences handed down by the judge, it is not necessary to require those sentences to be served in the form of immediate custody. It is not only for the purpose of encouraging or rewarding the purging or remedying of contempt that the option of suspending sentence exists, and if the judge thought it was, in my respectful opinion, he erred. As it is, the appellants’ prison terms were shortened by the judge because of his appreciation of their personal mitigation. They retain that benefit.”

1. 1. He concluded at [50]:

“This is perhaps a merciful conclusion, especially in the light of the absence of any apology or public regret: nevertheless, in a matter which above all concerns the public interest of the courts in policing the due administration of civil justice, and where no private harm has been proved to have been actually inflicted on the complainant, Templeton, I was ultimately persuaded, by the possibly irremediable hardship which Mr Thomas or Mr Panesar’s family might suffer, that the proper course lay in mercy rather than justice.”

16/05/2024

High Court of Ireland rules Order forbidding Martin Bright “Company Sergeant” in the Defence Forces ( highest level of the enlisted ranks) – who served on 5 overseas missions in Bosnia and the Lebanon – to attend an event planned for 19/09/2018 which concerned conditions of service of members of the Defence Forces…… attended by a number of wives and partners of serving members of the Defence Forces, as well as retired members of the Defence Forces…..while off-duty, and in civilian attire

“is ultra vires as being disproportionate and in breach of constitutional rights.”

“215.          It is not apparent to me why attendance at these events without more would have been contrary to the oath, which mirrors the wording of s.103(1). While the evidence of Mr Jacob is not directly relevant to the issues at hand, it does provide some comfort that a broad selection of Council of Europe countries permits attendance at events concerning pay and conditions by members of the military in civilian clothing. It is difficult to see how passive attendance “in civilians” by members at a well-organised and non-confrontational event concerning matters so fundamental to their wellbeing could be in conflict with the oath taken by all members.”

9/5/2024

Court of Appeal dismisses appeal by litigant in person Arnaud Gaultier and SUP PLIABLE LIMITED against Mark Reilly, Aine McGuigan, Louise Swords and in its judgment stated as follows:

“This litigation comes at a financial cost to those who have to defend themselves.  The appellant is fully aware of this.  In the course of the appeal the following email from the appellant, dated 6 November 2023, sent to the second named respondent [sic solicitor who had acted for his wife Louise Swords] was brought to the attention of the court. The email states: –

” —

I have currently some cash in my hand to allow me the followings:

(1)     A notice of motion and grounding affidavit for the recusal of Mr. Justice Cregan, setting aside all his orders to date which I can file (sic) early this week, amending the plenary summons, including the removal of Louise from the herein proceedings.

(2)     Two appeals to the Court of Appeal (to be filed by the end of this week) of Cregan’s judgment, which will be followed if required by a further application for leave to appeal to the Supreme Court …

You and I perfectly understand that there are no Court of Justice or court of law in this country, but what a Registrar best described as Court of Shenanigans.  The biggest of which is the battle and threat of legal costs: ‘grow the other side legal bill or force it to pay for yours.’ 

With five current proceedings in the High Court, you may understand that I am not afraid and that I know how to deal with those (cf. judgment of Faherty J. and Barr J. in the matter of Gaultier v CRO).  Over the last ten years, I put all my wealth in my wife’s name to protect and not expose my family to such possible legal costs (some of which predated our marriage.)

So, the question is: ‘do we keep going or do you want to settle out of court?’

I give you until end of business (5pm) on Tuesday 7.11.2023 to decide.  That should give you enough time to discuss same with your partners and insurers.  Please note that in my five High Court cases against the State, I have not seen a junior counsel standing without a senior counsel by his side since January 2017..” (emphasis added)

Though the appellant denied this, it is perfectly clear from this email that the appellant is wrongfully threatening the second named respondent to either settle or incur further legal costs in circumstances where the appellant has put his own assets into his wife’s name so as to render at naught any costs orders that will inevitably be made against him.  This cannot be considered as anything other than a gross abuse of the legal system by the appellant.  I assume that this was the basis upon which the appellant sought to join an insurance company as a defendant in these proceedings.”

The underlying dispute concerned stock, allegedly the property of the company, which the appellant believed had not been accounted for by Ms. Swords. ref Gaultier & Anor v Reilly & Ors (Approved) [2024] IECA 103 (29 April 2024)

In Murchú v Eircell Limited [2001] IESC 15. Geoghegan J for the Supreme Court held

“It is also usually impracticable and undesirable that two parties be compelled to trade with one another when one, for reasons which are perfectly rational, does not want to carry on such trading...” 

This principle underpins one of the rationales for Article 6 Human Rights to a fair trial in a reasonable timeframe before an impartial court (3 separate limbs) as due to the coercive powers of the Courts two (or more) parties can be and are compelled to deal with one another (for potentially years and years and in extreme cases what can seem a lifetime) when by virtue of the fact they are in the Courts it can be reasonably inferred there is a legal dispute between them and the reality is they do not want – on the presumption that their intention to seek a remedy in the Courts is bona fides) – “to carry on such trading” or dealings – be it in the Courts or otherwise.

=============

Prompted by the circumstances leading to the resignation of Declan Jordan “as a commissioner to administer oaths in and for the County of Donegal” the Supreme Court of Ireland in its ruling rendered moot due to the resignation has directed as follows :

“In principle, I am satisfied that conviction of a serious offence would in itself disqualify a person from being an appropriate person to be a commissioner, and a conviction of a serious offence following his or her appointment would justify the Chief Justice in removing the commissioner from the list of persons entitled to act as a commissioner for oaths. In cases of less serious offences, it may be necessary to inquire into the circumstances of the offence. Failure to disclose a matter such as a recent conviction for any offence, may itself be a matter relevant to the appointment. All of this points to the importance of such information being disclosed and I will direct that in future all applications should include a statement by the applicant and any person supporting the application that the applicant (or the individual as the case may be) is not aware of any matter relating to his or her suitability to be appointed a commissioner for oaths, unless specified in the application.”

———————–

8/5/2024

Caroline Fanning Solicitors acted in a taxation hearing before the Dublin County Registrar in her capacity as Legal Costs Accountant recently for a successful (compromised before the trial) plaintiff in a personal injuries who had pleaded that she was caused to fall while walking along ..due to the presence of a concrete stab that had been uprooted by tree root action.

Upon a subsequent review of the taxed costs to the Circuit Court an agent for the relevant local authority in Dublin averred in her grounding affidavit as follows seeking a reduction in the solicitors professional fee:

“This was a relatively routine trip and fall personal injuries action (emphasis added)”

It is clear from the recent High Court unsuccessful appeal decision by Denise Best against South Dublin County Council that these tree slab PI cases comprise the following “Legal issues” and are far from “relatively routine” cases.

As the High Court determined the factual matrix of the case did not on the balance of probabilities persuade the Court that the plaintiff was caused to fall by the cracked pavement (different account given to paramedic on night in question [sic “fall from standing after slipping on kerb”] and no witness as to fact called apart from plaintiff herself noting her husband had returned to the scene the following day and identified the cracked pavement in the locus of the fall but did not give evidence at the trial) the Court held off on any determination of these issues to a future case.

Mr. Justice Micheál O’Higgins

“C. Legal issues presented by the case:
25. Arising from the evidence and the written submissions of the parties, the following legal issues potentially arise for determination:
(1) Whether the definition of “road” in s. 2 of the Roads Act 1993 includes a tree. 
(2) Whether the defence of non-feasance is, in any event, still available to the defendant in circumstances where, according to the defendant, the plaintiff as a matter of fact fell on the footpath and the cause of the defect is immaterial. 
(3) Whether, at a level of principle, the defendant owes the plaintiff a common law duty of care to repair the footpath, breach of which is actionable in damages.
(4) Whether the defendant’s level of control of the roadway and/or its assertion of responsibility for maintaining trees in its functional area operate as exceptions to the “do no harm” principle such that it owed a duty of care to the plaintiff.
(5) Whether the defendant owes a duty of care under the Roads Act 1993, breach of which is actionable in damages (for instance, under s.13 of the Roads Act 1993 as substituted by s.6 of the Roads Act 2007 which provides that the maintenance and repair of all such roads is the function of the relevant local authority).
(6) Whether the defendant owes a duty of care qua Road Authority, qua planning authority, qua occupier/owner, or qua some other status (e.g. as the local authority responsible for the maintenance of trees in the area).
(7) Whether the defendant owes a duty of care under the Occupiers Liability Act 1995. 

(8) Whether the defendant owes a duty of care under s.70 of the Roads Act 1993 which deals with the duty on an owner or occupier of land and the owner or occupier of a structure to take steps to ensure the structure is not a hazard or interferes with the safe use of a public road.”

3/5/2024

Supreme Court of Ireland decline to reduce 12 year sentence for getaway driver John Faulkner (“a good man, a good father and son…very much loved by his family” as submitted by his defence counsel at his trial  ref https://www.rte.ie/news/munster/2021/0422/1211475-foiled-burglary/”)  holding that “the plan to flee was inherent in the offence and therefore encompassed the dangerous conduct in fleeing”. The two co offenders who pleaded guilty were given a 7 year sentence in 2021.

Judgment was delivered by Mr Justice Peter Charleton on 25/04/2024 on behalf of the 5 Judge Court who noted that “John Faulkner was within his rights to put the prosecution on proof of the offences with which he was charged: but not at all wise. There was in this instance no discernible mitigation on the evidence. Given the integration of the attempt at evasion with the burglary, the sentence was justified.”

The Supreme Court of Ireland in its judgment gave weight to “Further, the effects of burglary can be life-changing.In a 1989 study, drawn by the Court to the attention of the parties to the appeal, Professor O’Neill considered health changes due to criminal intrusion into the home; O’Neill et al, Effects of Burglary on Elderly People BMJ 298, 6688, 1618 (1989). This study mirrors the remarks of Hardiman J. Of a group of 272 people examined, with a mean age of 74 years, 80 had been burgled, some several times, reporting 122 burglaries through the group of 80, and of those 29 suffering multiple intrusions, 22 were not independently mobile. Of the group of 272, 11 had required medical treatment, and 72 reported psychological after effects, including fear of repetition for 57, depression or anxiety for 36, disordered sleep for 46 and fear of leaving the home for 32. Further 17 reported decreased mobility. Of the group, 11 had departed their home, of those 8 to lodge with relatives, 7 eventually returning, but 1 moving home and 3 entering long-term nursing care. The authors comment:

  We found an increased vulnerability to burglary among elderly people. The main factors underlying this phenomenon are social isolation, poor mobility, little use of security equipment, and an overtrusting attitude to callers. Elderly victims report particularly high objective (medical attention, decreased mobility, social disruption) and subjective (psychological markers) markers of stress and illness after burglary. The violation of the home seems to be particularly distressing: the home assumes increased importance with decreasing mobility and reduced social contacts.”

1/5/2024

The Sunday Independent on the 28/4/2024 headlined an article on the Irish family law system “Urgent overhaul of archaic and damaging  Irish system needed”.

However in practice where parties can agree settlement terms there are mechanisms under the Circuit Court Rules (O.59r.35) where the Court can be motioned to rule on these terms (no defence needed) and in Dublin Circuit Family Court I have acted in cases where under this procedure parties can be divorced within 4 to 6 months from start to finish.

Also under case progression rules (different rules for Dublin and outside Dublin Circuits) a County Registrar may under CCR O.59r.73 set the matter down for trial dispensing with the requirement for service by a party of a notice for trial and has power to award costs. These powers are generally exercised where the County Registrar notes default on one party (eg failure to furnish vouching documentation or comply with court timeframes) who may desire to slow things down and work effectively in practice to expedite matters.  

30/4/2024

In Judicial Review proceedings relating to Abbey Manor Hotel, Dromahair, Co. Leitrim for the purpose of converting it to use as accommodation for international protection applicants and displaced persons the High Court of Ireland rules Leitrim County Council must register Certificate of Compliance on Completion of the Applicant “DROMAPROP LIMITED” covering the above-ground floors (The two basement floors were to be closed off and not used pending development) who as part of the proceedings had contended that:

“the invalidation of the compliance certification was contemporaneous with the escalation of concerns on planning matters, and contemporaneous with correspondence with the International Protection Accommodation Service, a unit of the Department of Children, Equality, Disability, Integration and Youth, and all of that points to a concerted attempt on the part of the authority to use whatever procedural means were available, including the unexpected invalidation of the compliance certification, to prevent the Applicant from putting the hotel premises into use. “

25/4/2024

High Court of Ireland Dignam J. states that parties “are not entitled to secure an injunction and then not prosecute their proceedings.”

“Taking all of those factors into account, in my view the balance of justice favours the grant of the reliefs [sic in essence interlocutory injunctions but they will have the practical result of determining the proceedings because it is the intention of the plaintiffs to sell the property if they obtain the reliefs.] This is subject to the point that Clarke CJ made in Charleton v Scriven about an interlocutory injunction not being used as a form of summary judgment. The plaintiffs are not entitled to secure an injunction and then not prosecute their proceedings. That would amount to using the interlocutory injunction application as a form of summary judgment procedure. The defendant is entitled, if he wishes, to a determination of those proceedings and, indeed, to pursue a counterclaim, and, if it transpires that the injunction was incorrectly given, to seek damages on foot of the plaintiffs’ undertaking. I will in those circumstances make directions to get the matter ready for trial. I will, in the first instance, give the parties an opportunity to propose appropriate directions and, in the event of disagreement, I will determine an appropriate set of directions. “

In considering where the balance of justice lay the Court noted Mr. Markham had issued a plenary summons (never served)  but registered it as a lis pendens against the property and the Court was “also entirely satisfied that there is a strong case that Mr. Markham did rent out the property after the receiver had been appointed and had gone into possession and was not entitled to do so. The first element of this is not denied by Mr. Markham. His position is, rather, that he was entitled to do so as he was entitled to do as he wished with his property. This ignores the provisions of the mortgage. Condition 5 of the Mortgage provides, inter alia:          “The Borrower covenants so long as the Mortgage is subsisting:-

 (e)  Not to exercise the powers of leasing or agreeing to lease and of accepting surrenders of leases conferred on a mortgagor in possession by the Conveyancing Acts 1881 to 1911 and not to create any lease or tenancy or part with or share the occupation or possession of the Mortgaged Property.

 …

 (h) Not without the consent of the Lender to make any disposition of the Mortgaged Property subject to the Mortgage or create or purport to create any rent charge affecting it and not to create or permit to exist any mortgage or charge on the Mortgaged Property or the Life Policy or any other Life Assurance which will rank after the Mortgage.“

ref O’Brien & Anor v Markham & Ors (Approved) [2024] IEHC 202 (12 April 2024)

20/04/2024

In Coughlan v CGR Construction Ltd & Anor (Unapproved) [2024] IECA 78 (16 April 2024) the defendant successfully appealed the damages awarded on the basis that they were excessive because the judge misdirected herself as to the appropriate category in the Guidelines to have regard to and was further in error in her approach to the assessment of damages.

One of the unintended consequences of the Personal Injuries Guidelines adopted by the Judicial Council on the 06/03/2021 and effective from 24/04/2021 may be to increase the costs to a party where there is a divergence of opinion in medical reports commissioned by both parties. It may now be deemed necessary to call the medical experts to assist the Court in selecting the right category to place the dominant and other injuries/

“I am therefore satisfied that the judge’s finding that the plaintiff’s headaches amounted to a type of head injury was erroneous and not supported by the evidence.  This led the judge into the further error of finding that there was no clear category into which the headaches could be slotted as part of a head injury.  She held that it was now three years since the accident and the headaches persisted with no improvement likely.  In reaching that conclusion however, the judge was simply accepting at face value what was contained in Mr. Young’s report without any regard to the many inconsistencies in the evidence regarding the headaches and neck injury.  The judge did not engage with these in any shape or form as she ought to have done, in my view.  It equally follows that there was no basis for her conclusion that a sum of €30,000 compensation for the headaches was an appropriate amount in the case of a stand alone award. 

—-

Unfortunately, it seems to me that the judge misdirected herself on the evidence in a number of important respects to which I have alluded and this appears to have led her to the conclusion that an award at the maximum level of the serious category was warranted.  I cannot agree.  While the plaintiff’s injury does not fit precisely into either the serious or moderate category of shoulder injuries in the Guidelines, I am satisfied from all the evidence that an award at the upper end, or slightly above, the moderate level and/or at the very bottom of the serious level is warranted and is represented by a sum of €40,0000.”

The fact that the credibility of a litigant may be impugned by reference to the notes/reported recorded by a medical practitioner (which are not taken to be a transcript of the conversation) may also serve to increase costs in this regard noting Derek Coughlan was only witness to give evidence before the High Court/

“The plaintiff’s oral evidence in the High Court is to be contrasted with the varying accounts of his headaches given to doctors.  He told Dr. Salter at about 10 months post-accident that he had intermittent left sided headaches.  In his personal injuries summons, the plaintiff pleads that he was assessed by Mr. James Colville, Consultant Orthopaedic Surgeon, on the 27^th October, 2021, 14 months post-accident.  Mr. Colville’s report was not put in evidence.  The plaintiff pleads that he told Mr. Colville at that time that he “still got headaches at times but they seemed to be getting less frequent and he had difficulty localising the exact site of the headaches, but it appeared to be various parts of his head.”  This contrasts with what he told Dr. Salter about the pain being on the left side of his head.”

19/04/2024

Caroline Fanning Solicitors sends congratulations to Ms Justice Úna Ní Raifeartaigh on her election as Ireland’s next judge of the European Court of Human Rights (ECtHR). Having had the pleasure of sitting beside Ms Justice Úna Ní Raifeartaigh at a social event dinner several years ago prior to her taking up her position as a Judge of the High Court of Ireland this appointment will enhance the jurisprudence emanating from the ECtHR and strengthen the confidence in this Court to protect and safeguard the human rights guaranteed under the relevant Convention and its protocols.

19/04/2024

Supreme Court of Ireland dispossesses Dublin City Council of any notion it may have had of its power to create “super priority” charges (and by corollary its right then to exercise this “assumed” power without registering these charges against the property with Tailte Eireann) over people’s lands under Derelict Sites Act 1990 which stated power was at odds with its  own forms and procedures on the ground relating to the registration of these derelict site charges with Tailte Eireann (“The form of the documentation and the steps taken wholly undermine any suggestion that the Council regards section 24 of the DSA as operating outside the registration of title regime, or that a section 24 charge has some form of super priority.”) and breached the constitutional rights to fair procedures etc of landowners such as right of appeal/make representations as to value of land/charge etc. 

Mrs Justice Marie Baker issues guidance to conveyancing solicitors in drafting contracts where land is sold by bank/receiver and usage of terminology such as mortgagee/mortgagee in possession – ref Michelle Maher v DCC 2024 IRSC

15/04/2024

Barbara Delaney COMREG consumer rights advocate on RTE re EIR policy to obfuscate complaints

“people don’t waste their own time trying to raise issues that are not important to them..

they want to be able effectively and quickly deal with the issue .. people don’t take complaining lightly in sense that it takes time and it takes effort”

Either a company engages constructively with complaints and acts bona fides or they chose to force their consumer into years of expensive litigation adopting a strategy of deny and delay and lawfare.

10/04/2024

The virtues of a paperless office cannot be overestimated and Caroline Fanning Solicitors like many other legal firms aspire to this as it leads to greater efficiencies and time management. It also (as per article below yesterday on the Daily Mail) acts as a wellbeing tool to combat stress:

“Analysis revealed that while all reported a higher level of anger after receiving the insulting comments, participants who threw away or shredded their written thoughts quickly returned to their initial state of calm.” Of course it goes without saying to scan the documentation to your internal systems prior to shredding it..

https://www.dailymail.co.uk/news/article-13289957/Scientists-reveal-surest-way-stop-feeling-angry-stressful-situations.html

09/04/2024

Now retired Susan Redmond (previously working as a sterile technician in the Central Sterile Services Department (CSSD) of Tallaght Hospital in Dublin) wins her appeal against the Circuit Court dismissal of her personal injury claim for a work related accident resulting in hand injuries to her. The High Court of Ireland held Tallaght Hospital was 2/3rd liable and Ms Redmond 1/3rd liable with the parties having already agreed quantum subject to liability issue.

“I am satisfied for all these reasons that, on the particular day in question, the common law duty of care not to expose the plaintiff to unnecessary harm was breached by the defendant. In addition, owing to the insufficiency of storage space provided, I am satisfied that the plaintiff has established material breaches of the following provisions of s 8(2) of the Safety, Health and Welfare at Work Act 2005:

–          (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 its employees;

–          (c) Ensuring, so far as is reasonably practicable, the … provision … [of storage] plant and machinery that are safe and without risk to health;

–          (e) Providing systems of work that are planned … and revised as appropriate so as to be, so far as is reasonably practicable, safe and without risk to health;

–          (h) Determining and implementing the safety, health and welfare measures necessary for the protection of the safety, health and welfare of its employees when identifying hazards and carrying out a risk assessment.”

07/04/2024

RTE’s David McCullagh recent interview with Justice Minister McEntee on Hate Speech draft legislation – (Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022 to give effect to Council
Framework Decision 2008/913/JHA of 28 November 20081) – referred to Ireland’s status as the only “common law” country in the EU which he said was “judge made law” with the inference that any such legislation may be interpreted differently by different Judges. This is a feature of the common law where so many Judges have now said so much (from 1204 onwards).

The Bill contains the following provision

“Subject to subsection (3), in any proceedings for an offence under section 7 or 8, where it is proved that the person communicating the material concerned— 
(a) knew what the material contained,
(b) understood the meaning of the material, and
(c) made the material available on a platform that is or may be accessible by the public or a section of the public [sic this is the only ground where the  presumption may be rebutted in ss(3)*]

it shall be presumed that the person intended to communicate the material to the public or a section of the public.”

The Bill is silent as to what standard the above personal “knowledge and understanding” is to be judged by ie objective or subjective.

The late Supreme Court Justice Henchy in one of last judgments (relating to defamation law) before retiring in 1988 emphatically rejected the notion of a Court being persuaded  only by a persons’ “subjective beliefs” (presumably on the basis the motivation for these subjective beliefs cannot be fully relied upon or trusted where that person has skin in the game so to speak):

“I have no difficulty in rejecting the submission, which has only slender judicial support, that the occasion is one of qualified privilege if the person making the communication honestly believes that the person receiving the communication has a duty or interest in receiving it. I cannot believe that the guarantee in Art. 40.3.1 of the Constitution that the State will protect, and, as far as practicable, by its laws defend and vindicate the personal rights of the citizen, would be effectuated if a right to defame with impunity is recognized on such a purely subjective basis. An occasion of qualified privilege is to be given recognition only to the extent that it is necessary under Art. 40.6.1 to recognize, on an objective basis, the right to express freely convictions and opinions. The constitutional priorities would be ignored if the law considered an occasion of qualified privilege to depend only on the honest opinion of the communicator as to the existence of a right or duty in the other person to receive the communication. The constitutional right to one’s reputation would be of little value if a person defamed were to be deprived of redress because the defamer honestly but unjustifiably believed that the person to whom the words were published had a right to receive the communication.”

The language used in s7(1)(b) of the Bill (“the person does so with intent to incite violence or hatred against such a person or
group of persons on account of those characteristics or any of those
characteristics or being reckless as to whether such violence or hatred is thereby incited”) is similar to that required to establish “malice” in defamation law.  “In a defamation action, the defence of qualified privilege shall fail if, in relation to the publication of the statement in respect of which the action was brought, the plaintiff proves that the defendant acted with malice” (s19(1) of Defamation Act 2009) meaning the alleged defamatory statement must have been made  by the defendant with knowledge that it was false or with reckless disregard of whether the statement was false or not, which is a high threshold to surmount.

*”(3) In any proceedings for an offence under section 7 or 8, an accused person may rebut the presumption raised in subsection (2) by showing at the time of the alleged offence that he or she did not know the material communicated would be made available to the public or a section of the public.”

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5/4/2024

The conscience of the Court manifested itself in the recent judgment of His Honorable Justice Garrett Simons in discharging an order for discovery made by the Deputy Master of plaintiffs’ medical records to the defendant on the basis that it was insufficient to order discovery of such confidential sensitive documents solely on foot of references to medical reports commissioned by the defendant. The learned High Court Judge stated the Court would need sight of the actual reports themselves to enable the Court review the contents thereof and make a judgment as to the relevance and necessity by reference to the pleadings of disclosing medical records/ This case involved a personal injury action said to have resulted in post traumatic stress disorder type symptoms where the plaintiff was then subjected to an incident of domestic abuse (which was disclosed by the plaintiff to the defendant).

04/04/2024

High Court of Ireland refuses to make Isaac Wunder order against Pascal Hosford a retired civil servant whose litigation against the Irish State/certain Ministries seems to stem in part from his wish to raise awareness/impugn certain legislative provisions that permit company directors/shareholders to be treated for tax purposes as self employed persons subject to meeting certain criteria.

“105. It does not appear to me that the background to these proceedings justifies the making of an Isaac Wunder Order at this juncture. Although the plaintiff has long pursued his complaint regarding the treatment of company directors for social insurance purposes, the lion’s share of his dispute on that issue appears to have occurred during the course of his employment. As noted above, that dispute may have been the proximate cause of a number of other disputes, but it couldn’t be said that the plaintiff has habitually or persistently issued proceedings on the company director issue, nor are any of the other features summarised by O’Caoimh J in O’Riordan present. I have, of course, refused to dismiss the 2115P proceedings, insofar as the plaintiff pursues a claim in tort for detriment he alleges that he has suffered for having made a protected disclosure.”

03/04/2024

The long lasting and far reaching consequences of con artistry is seen in recent High Court of Ireland decision where the litigating parties in partnership with each other had drawn down a loan from the ACC in 2008  to successfully protect their Dubai investments “Apparently, he had been a conman, who had sold multiple options to purchase the same floors in the office building. As a result, both the plaintiff and the first defendant stood to lose very considerable sums of money, unless they were able to produce the remaining funds and to sign documents in Dubai, shortly after February 2008.”

The High Court held there was no obligation to account to the partnership for the profits (which were not deemed secret profits) made from these investments (in one case some €200,000 after payment of tax) but liability was confined to the repayment of the loan amount they had used for this purpose/

26/3/2024

High Court of Ireland Justice Denis McDonald today delivered his  “electronic judgment” in collision case between 37-metre long Kirrixhi fishing trawler and large merchant ship chartered by Hua Sheng Hai Ltd.  (229 metres) carrying 44,000 tonne cargo of bauxite to Aughinish Alumina in Limerick on 11/10/2019 off the Kerry coast :

“Taking an overall view of the facts and circumstances leading to the collision between the Kirrixki and the Hua Sheng Hai, I am of the view that a similar apportionment is appropriate here. The Kirrixki, as the creator of the danger, must bear the lion’s share of responsibility for the collision. In contrast, the Hua Sheng Hai was left in a position where it had to react with speed to the sudden danger created by the trawler. While I have found fault on its part, that fault is significantly less blameworthy than the actions of the Kirrixki in taking a blind turn across the path of the Hua Sheng Hai. In my view, an apportionment of liability as to 85% to the Kirrixki and 15% to the Hua Sheng Hai represents a fair reflection of their respective degrees of fault for the collision.”

It would appear that the Department of Transport understanding was that the collision occurred outside of Irish waters with no Irish-flagged vessels involved and the matter “falls to the respective flag states” under international maritime law. ref: https://afloat.ie/safety/mcib/item/44360-investigation-into-collision-off-kerry-coast-last-weekend

However the learned High Court Judge stated in his judgment the parties were satisfied Irish law applied and the Irish courts had jurisdiction.

“Although the collision occurred in international waters, the parties are agreed that Irish law applies to the respective claims advanced by the parties as against each other. In this context, both parties have referred to

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The High Court in Ireland on 21/3/2024 released a separated man in his 50s from Wardship placing his affairs instead under the control of a court approved  decision making representative (DMR ) appointed from a panel of DMRs who was stated to be an experienced social worker.

There was one “uncontested” medical Report before the court which the court said it could safely and “must” rely on.

Is there a risk now of the High Court being held to be unlawfully delegating its powers to the opinions of medical practitioners in this area as the Courts begin to interpret the Assisted Decision Making Capacity Act 2015?

The High Court held in 2015 case of Sandys v Law Society of Ireland Kearns J. where similar issues were argued it was satisfied that the decision making committee had engaged with the submissions of both parties as well as the expert report of Noel Guiden now retired legal costs accountant (which was the only report before the Committee) and it was clear from the minutes (available to the Court) that the Chairman of the committee had been aware and indicated that “it was open to the Committee to deviate entirely from the report if it wished, in light of all the submissions.”

24/3/2024 

An expensive day out for the Irish taxpayer in case of Mr. A an Egyptian national who on 20/07/2020 secured an offer of employment from E-Businesssoft Technologies Ltd. – registered offices at 20 Harcourt Street, Dublin 2 but was refused a visa to enter Ireland.

The Court of Appeal of Ireland ruled his application should be remitted back to the respondent for consideration by a different decision-maker when Irish Court of Appeal ruled “he has succeeded in his appeal. It would seem to follow that he should be awarded his costs to be adjudicated by a legal costs adjudicator in default of agreement” on the basis the Minister of Justice official should have dispossessed him of his erroneous belief that the only deficiencies in his application related to “proof of accommodation in the State and travel insurance only were missing”

” Thereafter, in the undoubted knowledge that the appellant had focused only on his accommodation and travel arrangements (which he believed might be the source of the respondent’s concern), the respondent did not, however, make any attempt to disabuse the appellant of his belief that the difficulties with his documentation lay in the realm of accommodation and travel arrangements. Whilst the appellant did not in his appeal letter specifically ask for other required documentation to be identified by the respondent, in my view, his apparently erroneous focus on matters of travel and accommodation (to which, as I have said, he was unwittingly led by the very opaque nature of the first instance decision reasons) constituted in effect a clarion call to the respondent to put the appellant on the right road, which the respondent did not do.  To my mind, in the particular circumstances of this case it behoved the respondent to do so. …

..the frailties which attach to that decision, to which I have already alluded, namely the inadequacy and effective unreasonableness of the “OC” reason, and regarding the “ID” reason, in the very particular circumstances of this case the failure of the respondent, prior to issuing the refusal decision, to highlight (when effectively invited by the appellant to do so) the deficiencies in the appellant’s qualifications and work experience in relation to the post being offered to him, be that software engineer or software developer, thus thereby depriving the appellant of any real or effective opportunity to address those perceived inadequacies. “

6/3/2024

The referendum for the 39th/40th amendment to the Irish Constitution 1937 is on 8/3/2024. There is merit in introducing a new Constitution as other countries have done as a recent 2024 decision from the Supreme Court of Ireland highlights that only when “money messages” come from Government do rights – many notional/aspirational in value – become effective.

“119.    What is clear, however, is that the operation of these provisions of the 1991 Act (and the amendments effected thereto by the Child Care (Amendment) Act 2011) did involve a cost – and a substantial cost – to the public purse. If the Government had considered that the costs to the public funds of such a proposed legislative measure were likely to be excessive, it could effectively have vetoed the measure by refusing to issue the appropriate money message under Article 17.2. Alternatively, the Minister could have decided not to have commenced the relevant provisions of the 1991 Act as amended. If at any stage after the passage into law and the coming into force of the Act it was considered that the obligations contained in it were too onerous then it could have been amended.”

27/2/2024

"Ryanair tried to get state action over disruptive passengers on their flights...Michael O’Leary claims there’s a sense of impunity’ among passengers and that it is extremely rare for prosecutions to follow in-flight incidents.."
 ref: https://www.independent.ie/business/irish/ryanair-tried-to-get-state-action-over-disruptive-passengers-on-their-flights/a2078130957.html

The American courts have long recognised the vulnerability of people whilst onboard various modes of transport holding that the providers of such transport owe a non-delegable duty to protect their passengers from crew member assaults and thereby safely transport their passengers applying a standard of strict liability (the imposition of liability on a party without a finding of fault) ref Doe v Celebrity Cruises 145 F. Supp. 2d 1337, 1346 S.D. FL, Supreme Court’s decisions in Brockett and Jopes

13/2/2024

High Court of Ireland rule it would be a “hazard to Justice” if trial were to proceed over 40 years after an alleged incident of sexual assault by retired solicitor Walter Beatty against his son Stephen Beatty now a retired medical surgeon when he was a child in the family home. In acceding to the application to dismiss the proceedings brought by the Guardian Ad Litem for Walter Beatty now resident in a nursing home suffering from dementia and a stroke victim the Court noted 2 key witnesses of fact were also deceased. The Court also pondered on whether the Statute of Limitations did apply in circumstances where Stephen Beatty filed a criminal complaint in 2017 and had functioned on a high level academically and professionally.

8/2/2024

Hibbert & Anor v Hall [2024] EWHC 227 (KB) (08 February 2024)

“iv) This does not mean that the court must take at face value and without analysis everything that a defendant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472;;

…..

[22]

The second in time names the claimants’ GP and their treating hospital as respondents and seeks disclosure of their medical records.

iv) Although perhaps secondary to proportionality considerations such as value and complexity, the personal impact of the proceedings on the parties is also a relevant consideration. If the Issues can only be dealt with at trial, that will actively serve and promote the defendant’s interests (including, it is fair to assume, his financial interests). But the claimants will face a long drawn-out process in which their credibility, bona fides and, to some extent, their privacy will be under an attack which they maintain should never have been made in the first place and which has no real prospect of success.

[38]..

The defendant’s own analysis and observations on these topics are of no value because he is not qualified to comment.

..

Given the highly traumatic nature of the event and the multiple times that he has recounted his experiences and heard others recount theirs, it would be surprising if there were not inconsistencies.”

Royal Courts of Justice refuse to permit remorseless people profit from other peoples’ pain. “For these reasons, I find that the defendant has not discharged the evidential burden which rests on him. He has no real prospect, indeed no prospect at all, of success on the Issues and I will resolve them in the claimants’ favour.”

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7/2/2024 Caroline Fanning Solicitors commends the great work being done by the Law Society Psychological Services. In a recent seminar a UK lawyer who bravely opened up about his mental health struggles described one of its impact as “taking three times as long to do a task” when your mental health is impacted adversely.

In EUGENIE HOUSTON v DAVID BARNIVILLE & ORS The Court of Appeal of Ireland held on the 30/11/2020 (Birmingham P delivering judgment for the 3 Judge Court)

“24.     The manner in which the appeal has been pursued gives rise to disquiet on our part. We would instance the fact that almost by way of an aside, the appellant comments that a doctor, who was one of the lay members of the Tribunal, was, she believed very strongly, somebody who should be struck off as a doctor for the conduct that he was engaged in. On a number of occasions, she referred to another lay member, a distinguished academic, in disparaging terms as “Mammy Hyland” or “Irish mammy”, this, prompted by the fact that the lay member in question had a daughter who was practising at the Bar. She repeated a suggestion that a Barrister, who acted as Chairman of the Tribunal, was suffering from dementia. This remark was INSENSITIVE and quite DISRESPECTFUL of those who do suffer from this condition and the families of sufferers. We deprecate in clear terms the way which this appeal was conducted by Ms. Houston.” (emphasis added)

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25/01/2024 Caroline Fanning Solicitors welcomes the Supreme Court of Ireland decision in John O’Meara & Ors v The Minister for Social Protection, Ireland and The Attorney General (Approved) [2024] IESC 1 (22 January 2024) re Widow’s, Widower’s or Surviving Civil Partner’s (Contributory) Pension (“WCP”) payable under Chapter 18 of Part 2 of the Social Welfare Consolidation Act, 2005 (as amended) (“the 2005 Act”)

as follows

“I would make a declaration that s. 124 of the 2005 Act is inconsistent with the Constitution insofar as it does not extend to Mr O’Meara as a parent of the second, third and fourth appellants. I would also make an order of certiorari quashing the decision of the Minister to refuse Mr O’Meara WCP. This is not a complete solution for the appellants since it would require a legislative amendment to positively provide for benefit in their case. It remains a matter for the Oireachtas to consider how best to make provision for benefit consistent with the provisions of Article 40.1 of the Constitution.”

However in view of the case of Murphy v the Attorney General, 1982, IR 241 (challenged the fact they had been paying more tax as a married couple as being unconstitutional under Article 40.1, 40.3 & Article 41. The High court found in favour under under Art. 41.3. for tax years 1967-8 and 1979-80 inclusive)  any laws made by the Oireachtas on foot of the above decision is unlikely to benefit others in analagous circumstances to John O’Meara and his family.

The conclusion of the majority in Murphy that “restitution (sic to the tens of thousands of married couples who also have had income tax deducted from their earnings in this way, i.e. by compulsory deductions from their earnings for transmission by their employers to the revenue authorities) would be inequitable unjust and unreal”

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5/12/2023

Caroline Fanning Solicitors celebrates International Volunteer Day today – in life it is all about what you can give back and do to help others.

“

Hi Caroline,

We wanted to take a moment today to thank you for giving your time, expertise, and advice over the past year. Whether you know it or not, we consider you a volunteer!

Tuesday, 5 December marks International Volunteer Day, a day on which we recognise and celebrate the impact of volunteering on our communities.

To date, nearly 7,700 UCD alumni like you have volunteered in a variety of different capacities – from mentors to board members, testimonial givers to global ambassadors, speakers to social media contributors, reunion organisers to chapter representatives – and more!”

17/11/2023  Ryan Casey deeply moving victim impact statement at late Ashling Murphy’s  sentencing hearing

“I don’t care where you end up…. or happens to you after today…. but you smirked, you smiled, and you showed zero remorse throughout this trial, which sums up who you really are, the epitome of pure evil but one thing is for sure, you will never ever harm or touch another woman ever again and when your day of reckoning comes, may you be in hell a whole half hour, before God even knows you’re dead.”

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Dec 2017
Caroline Fanning has written and published a short collection of 16 poems “LOST LOVE AND OTHER POEMS” with the proceeds going to 2 charities Family Carers Ireland and Alzheimers Society of Ireland – available to purchase http://www.alzheimer.ie/Get-Involved/Fundraising/Shop/Lost-Love-Poetry-Book.aspx for €10.00 plus p&p

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The Law Reform Commission in acknowledgement of the valuable contribution made by Caroline Fanning in providing a submission during the research for this project have invited Caroline Fanning Solicitors to the launch of the “REPORT ON HARMFUL COMMUNICATIONS AND DIGITAL SAFETY” in their offices on Tuesday 27^th September 2016.

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Caroline Fanning is speaking at the National Construction Summit in the RDS on 15/6/2016 at 3:35pm on the following topics:-
Building Control Management System
Building Control Regulations
Building Regulations
Commencement Notices
Assigned Certifiers
7 Day Notice
Certificate of Compliance on Completion
Safety, Health and Welfare at Work Act 2005

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Caroline spoke in January 2016 to some members of the Foxrock division of “Family Carers Ireland” advising on issues such as mental health law,  the new Assisted Decision-Making (Capacity) Act 2015 (due to commence mid 2016) which abolishes the Wards of Court office, the need to make a new will where a proposed beneficiary is now suffering from dementia and the Fair Deal scheme and powers of attorney.

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Caroline Fanning Solicitors succeeded on behalf of a client in achieving a 94.1% reduction of outstanding bank debt (corresponding to approx. €800,000.00 written off debt) together with a write off of the banks’ High Court legal fees and outlays. This involvedlegal drafting and advocacy in the High Court to overcome the Courts’ high threshold that “there is a defence” and get the matter to go to a full hearing.

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Caroline Fanning Solicitors succeeded in getting a commercial client removed from High Court proceedings at a very early stage by using an under utilised Rule of Court – see Litigation page for further details.

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Caroline Fanning Solicitors succeeded on behalf of a client in achieving a 100% writeoff of financial condition in a planning permission of over €30,000.00 to NIL

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Caroline Fanning Solicitors succeeded on behalf of a client in rescinding a valid contract for sale for property in excess of €1.5 million allowing them not to proceed with its purchase due to financial hardship

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Caroline Fanning Solicitors succeeded on behalf of a client in securing the safe return of commercial vehicles caught up in an insolvency situation based on retention of title clause

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Caroline Fanning Solicitors has acted in numerous personal injury cases from both a plaintiff and defendant perspective.

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Caroline Fanning Solicitors succeeded in obtaining an Irish Patent and an International Patent from  WIPO on the basis of a one line instruction from a client which involved very extensive research and technical understanding and acquisition of know how

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Caroline Fanning solicitors acted for a client in submitting probate papers claiming “foster child” tax relief allowing property to be inherited tax free from an aunt/uncle (as if taken from a parent with CAT Threshold A applying)

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Caroline Fanning Solicitors succeeded on behalf of a client in a case taken to the Supreme Court to allow additional evidence to be adduced to that already given in the High Court overcoming the very high legal threshold

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Caroline Fanning Solicitors has succeeded in obtaining freezing orders from the Court in family law maintenance cases

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Caroline Fanning Solicitors carried out intellectual property due diligence on behalf of a client which saved them from making a financially detrimental investment

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Caroline Fanning Solicitors successfully defended Hague Convention on Child Abduction taken by the child’s other parent to have the child returned to Eastern Europe

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Caroline Fanning Solicitors successfully negotiated on behalf of clients exit packages in employment law cases where there were allegations of stress and bullying

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Caroline Fanning Solicitors successfully defended a client in the medical profession who was facing disciplinary hearings with no adverse impact on their employment history record/reference