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Banking - Execution of guarantees - Assignment of life policy to bank - Nature of guarantees - Discharge of liability

Posted 9/12/2016

Meagher, James J M v Ulster Bank Ireland Ltd
3/11/2016 No. 2013/7927 P [2016] IEHC 628

 

Facts: The present case concerned the effect of the termination of guarantees for a deceased person’s estate on the proceeds of a life policy. The key issue for consideration was whether the deceased was indebted to the defendant/bank on foot of the guarantees because the said life policy was the subject of an assignment by way of a mortgage executed by the deceased in favour of the bank. The said guarantees were joint guarantees that allowed the bank to recover “actual or contingent liabilities” of the deceased. The plaintiff being the personal representative of the deceased sought declarations to the effect that he was legally entitled to the proceeds of that life policy and that the guarantees in question were lawfully terminated by him. The plaintiff contended that the bank had not made a demand within a month of notice of termination for the relevant guarantees and did not take action to recover the money and thus, the said guarantees against the bank were not enforceable.
Held: Mr. Justice Tony O’Connor refused to grant the declarations sought by the plaintiff. The Court found that clause 3 of the guarantees in question mentions the term ‘recoverable’ that supported the position of the bank that the determination of the guarantees crystallized the bank’s entitlement to demand the estate of the deceased to give effect to the arrangements concluded between the bank, deceased and the co-guarantors under the guarantees. The Court found that the plaintiff as the personal representative of the deceased was entitled to identify the liabilities of the deceased. The Court found that the parties, the company and the co- guarantors all signed up to an arrangement whereby the proceeds of the said life policy could be used to discharge any liability of the company to the bank at the date of the death of the deceased when the bank called for same. 
Meagher, James J M v Ulster Bank Ireland Ltd
3/11/2016 No. 2013/7927 P [2016] IEHC 628

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Bankruptcy - Extension of period of bankruptcy - S. 85 of the Bankruptcy Act, 1988 as amended - Failure to cooperate with the official assignee - Prejudice to creditor

Posted 1/12/2016

Lehane, Christopher D (official assignee) v Farrell, Angela
14/11/2016 No. 2594 [2016] IEHC 637

Facts: The applicant/official assignee sought an order extending the period of bankruptcy of the respondent by five years under s. 85A(1) of the Bankruptcy Act, 1988. The applicant sought the said order on ground of failure of the respondent to cooperate with the applicant in realisation of assets of the respondent or non-disclosure of income or assets, which could be realised for the benefits of the creditors of the respondent. The respondent alleged that the order adjudicating the respondent as a bankrupt was a nullity and that the applicant had no title over her assets. 
Held: Ms. Justice Costello extended the period of bankruptcy of the respondent for four years from the date when the respondent otherwise would have been discharged automatically from bankruptcy by the operation of law. The Court held that there was ample evidence to establish that the respondent had failed to cooperate with the applicant or disclose assets to the applicant in breach of her statutory obligations. The Court held that any extension of bankruptcy period should be proportionate to the established wrongdoing. The Court observed that non-cooperation and wrongdoing was severe but not to the extent of causing great prejudice to the creditors in the realisation of the respondent’s assets. The Court held that in the circumstances of the case, it would be appropriate to extend the duration of bankruptcy of the respondent to four years. 

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State’s top judge denounces ‘inaccurate’ criticism of judiciary

Posted 21/11/2016
 

The State’s top judge has criticised “inaccurate discussion and misrepresentation” in relation to judicial reform in remarks that appear to be directed at the Minister for Transport, Sport and Tourism, Shane Ross.

Addressing the National Judges Conference at the weekend, the Chief Justice, Susan Denham, said it was a fundamental principle that each of the three pillars of State – the legislature, the executive and the judiciary – “owes respect to the other”.

Last week in the Dáil, the Taoiseach dissociated himself from remarks about the judiciary made by Mr Ross. Enda Kenny did so after the Labour Party’s Brendan Howlin said the comments by Mr Ross on RTÉ radio were the “most aggressive attack” he could recall by a Cabinet member on the judiciary.

Mr Ross had said there should be a public register of judges’ interests as judges might sometimes “forget” their oath to administer justice without fear or favour.

He also said there had always been “massive resistance” from judges to efforts to introduce such measures “because they are not used to being accountable.

“We need to reassure people that the judges are not a protected citadel as they are at the moment.”

Judges, he said, “have a blank cheque to declare nothing”.

Tánaiste and Minister for Justice and Equality, Frances Fitzgerald, said the separation of powers was a cornerstone of our democracy and that there had to be respect between the various branches at all times.

Ms Denham, in remarks to the judges’ conference released through the Courts Service, said the judiciary had been pressing for five years to have the process of judicial appointments reformed and made more transparent, and that for 20 years the judiciary had been asking for, planning and researching a proposed judicial council.

 

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Doctor was following guidelines in ectopic pregnancy, Medical Council inquiry told

Posted 19/11/2016

A doctor accused of misdiagnosing an ectopic pregnancy and prescribing drugs to terminate it was following guidelines in what could have been an extremely risky situation, a Medical Council inquiry has been told.

The consultant obstetrician and gynaecologist told mother-of-three Laura Esmonde she could “die in her sleep” and “bleed to death” if she took no action in relation to her suspected ectopic pregnancy in January 2013.

The doctor, identified as Dr A, is accused of poor professional performance in his care of Ms Esmonde at South Tipperary General Hospital

The Medical Council inquiry has heard allegations Dr A wrongly diagnosed Ms Esmonde with an ectopic pregnancy on January 8, when in fact it was a normal pregnancy. He prescribed her two courses of methotrexate, a medication used to stop ectopic pregnancies from growing, which she took.

Nearly three weeks later, on January 26, subsequent ultrasound scans revealed the pregnancy was not ectopic, the inquiry heard. However at that stage, it was not viable and she miscarried on February 2.

Dr A is facing a number of allegations including that he misinterpreted ultrasound scans, placed disproportionate reliance on those scans to make a diagnosis of ectopic pregnancy and diagnosed methotrexate without excluding the possibility of an intra-uterine pregnancy.

He did not give evidence at the inquiry, which took place over a number of days in September and November.

In closing submissions on Friday, Neasa Bird BL, representing the case against Dr A, said the inquiry committee could be satisfied “beyond reasonable doubt” that Ms Esmonde's pregnancy was intra-uterine, or in the womb.

She said once the drug methotrexate was taken, “there was no going back”.

“Once it is administered, any possibility of a viable intra-uterine pregnancy has come to an end,” Ms Bird said.

Ms Esmonde “clearly agreed to methotrexate on the basis (of Dr A's assertion) that 100 per cent of her uterus was empty,” Ms Bird said. “That was incorrect and that can not have been absolutely categoric.”

Ms Bird said Dr A gave no consideration to conservative management of the pregnancy, that is, waiting to see if the outcome changed. When asked by Ms Esmonde if she could do this, Dr A told her she might not develop any symptoms of an ectopic pregnancy and could die in her sleep, the inquiry heard.

Simon Mills BL, representing Dr A, said the consultant was following medical guidelines when he prescribed methotrexate to Ms Esmonde.

He noted that a total of four medical observers were unable to identify a pregnancy in Ms Esmonde's uterus in ultrasound scans before the decision was made. Her blood levels of the pregnancy hormone HCG were also low and in the medical “discriminatory zone”, Mr Mills said.

“The guidelines applied, the guidelines were followed,” he said, adding, “What is a doctor supposed to follow if not the guidelines?”

“You have to put yourself in the position of Dr A on the afternoon of January 8. He couldn't know what the scans on January 26 would show...You may conclude Dr A was wrong. That's not what this case is about. It's about whether it was poor professional performance to take the course he did.”

Mr Mills pointed to evidence from Rotunda master, Professor Fergal Malone, and consultant obstetrician Dr Peter Lenehan, who appeared before the inquiry and who were “clear about the risks faced” in the case of a suspected ectopic pregnancy.

“These two Irish experts both say they would have proceeded in the same way, had they found themselves in Dr A's position,” Mr Mills said.

The inquiry committee, chaired by Dr Michael Ryan, will hand down its decision next week.

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Overview of new regulation on beneficial ownership - European Union (Anti-Money Laundering: Beneficial Ownership of Corporate Entities) Regulations 2016

Posted 19/11/2016

Overview of new regulation on beneficial ownership - European Union (Anti-Money Laundering: Beneficial Ownership of Corporate Entities) Regulations 2016

 

Enclosed below is a link to statutory instrument No. 560 of 2016 entitled ‘European Union (Anti-Money Laundering: Beneficial Ownership of Corporate Entities) Regulations 2016’. This statutory instrument requires corporate and other legal entities incorporated within this State to hold adequate, accurate and current information on their beneficial ownership, including details of the beneficial interests held. It has a commencement date of 15 November 2016. A background note providing more details on the SI is also attached for information.

The statutory instrument transposes the first sub-paragraph of Article 30(1) of the Fourth Anti-Money Laundering Directive (4AMLD). The rationale for transposing this provision in advance of the rest of the 4AMLD is that in order for the central register of beneficial ownership (required by Article 33(3) of 4AMLD) to be effective from as early a date as possible after full transposition, corporate entities will need to initially gather the necessary beneficial ownership data and to record same in their own corporate beneficial ownership registers.

Work has commenced on putting in place a central register of beneficial ownership, but such a register is unlikely to be in place until the middle of next year. Any queries in relation to the statutory instrument can be sent to the following email address aml@finance.gov.ie

http://www.finance.gov.ie/publications/legislation/statutory-instruments/si-560-2016-european-union-anti-money-laundering

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Overview of new regulation on beneficial ownership - European Union (Anti-Money Laundering: Beneficial Ownership of Corporate Entities) Regulations 2016

Posted 17/11/2016

 

Overview of new regulation on beneficial ownership - European Union (Anti-Money Laundering: Beneficial Ownership of Corporate Entities) Regulations 2016

Overview of new regulation on beneficial ownership

Introduction

The first sub-paragraph of Article 30(1) of the Fourth Anti-Money Laundering Directive (4AMLD) is transposed by the attached statutory instrument entitled ‘European Union (Anti-Money Laundering: Beneficial Ownership of Corporate Entities) Regulations 2016’ (SI No. 560 of 2016). This statutory instrument requires corporate and other legal entities incorporated within this State to hold adequate, accurate and current information on their beneficial ownership, including details of the beneficial interests held. It has a commencement date of 15 November 2016.

The rationale for transposing this provision in advance of the rest of the 4AMLD is that in order for the central register of beneficial ownership1 to be effective from as early a date as possible after full transposition, corporate entities will need to initially gather the necessary beneficial ownership data and to record same in their own corporate beneficial ownership registers.

Work has commenced on putting in place a central register of beneficial ownership, but such a register is unlikely to be in place till the middle of next year.

The first sub-paragraph of Article 30(1) of 4AMLD requires corporate and other legal entities incorporated within the State to hold adequate, accurate and current information on their beneficial ownership. It reads as follows:

“Member States shall ensure that corporate and other legal entities incorporated within their territory are required to obtain and hold adequate, accurate and current information on their beneficial ownership, including the details of the beneficial interests held”

The purpose of this provision is to enable the determination of the natural persons who are the real owners/controllers of a company. In many cases, this is clear as the legal owners and beneficial owners are one and the same. In other cases, the ownership may be so dilute that it is not possible to identify a particular beneficial owner. It is appreciated that there are many complex company ownership structures in place where determining who the underlying beneficial owners are will not be a simple task.

However, notwithstanding challenges which will undoubtedly arise, there should be no ambiguity that a core objective of this EU Directive is to establish mechanisms to assist designated persons such as banks to conduct CDD in relation to legal entitles and as part of that work, to require companies to identify natural person controlling them, even if doing so necessitates in-depth legal analysis of their ownership structures.

In summary, therefore, there is a requirement for companies to identify the natural person/s who are their underlying beneficial owners on the basis of the definition in Article 3(6) (a) of the 4AMLD (see appendix).

 

Main features of new regulation

The following should be noted in relation to the regulation:

(i) The regulation applies to every corporate or other legal entity except for those:

 

(a) Listed on a regulated market that is subject to disclosure requirements consistent with the law of the EU, or

 

(b) Subject to equivalent international standards which ensure adequate transparency of ownership information.

This exemption from scope is contained in the last three lines of the first paragraph Article 3(6) (a) (i) of the 4AMLD.

(ii) In the regulations, ‘beneficial owner’ is given the meaning provided by Article 3(6) (a) of the 4AMLD, which sets out how beneficial ownership should be determined, so as to identify the natural person or persons ultimately controlling a legal entity through direct or indirect ownership of a sufficient percentage of the shares or voting rights or ownership interest in that entity. A shareholding of 25 % plus one share or an ownership interest of more than 25 % in the customer held by a natural person shall be an indication of direct ownership. A shareholding of 25 % plus one share or an ownership interest of more than 25 % in the customer held by a corporate entity, which is under the control of a natural person(s), or by multiple corporate entities, which are under the control of the same natural person(s), shall be an indication of indirect ownership (see appendix for full text of Article 3(6)(a)(i))

 

(iii) The regulations require every corporate or other legal entity to take all reasonable steps to obtain and hold adequate, accurate and current information in respect of its beneficial owners, e.g. name, d.o.b., address, statement of nature and extent of interest held by each beneficial owner and to maintain within the entity’s records a register of that information.

 

(iv) The regulations provide for a scenario where all avenues for determining the beneficial owner have been exhausted to no avail and in such a case, the names of the senior managing officials of entity will be added to the register.

 

(v) The regulations allow a corporate entity, where it does not already have details of its beneficial owner, to give notice to any natural person whom it believes to be its beneficial owner; once such a notice has issued, the natural person assumed to be a beneficial owner will have a month to reply.

 

(vi) The regulations allow a corporate entity to issue a similar notice to a person whom it has reasonable cause to believe knows who its beneficial owner or owners are. There is however a safeguard in respect of such 3rd party notices which will permit non-disclosure of information where any claim to legal professional privilege could be 

maintained in legal proceedings.

 

(vii) The regulations provide for mechanisms to keep corporate entities’ registers up to date, including notifications and communications concerning relevant changes in beneficial ownership between corporate entities and their beneficial owners;

 

(viii) A duty is also imposed upon a natural person who is a beneficial owner or who ought to know that they are one to notify an entity that they are a beneficial owner if they have not received a notice from the entity requesting this information. There is also a duty on natural persons, in certain circumstances to notify relevant changes in beneficial ownership

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Personal injuries – Professional negligence – Damages – Appellant seeking damages for the professional negligence of the respondent – Whether appellant established that the outcome of his personal injuries action was undermined or rendered unsatisfactory

Posted 17/11/2016

Personal injuries – Professional negligence – Damages – Appellant seeking damages for the professional negligence of the respondent – Whether appellant established that the outcome of his personal injuries action was undermined or rendered unsatisfactory because of any professional failure on the respondent’s part 

Facts: The appellant, Mr Vesey, following upon his involvement in a road traffic accident on 9th September 1996, instituted proceedings seeking compensation for personal injury sustained in that accident. The defendant in that action, Bus Éireann, admitted liability and the matter was heard in the High Court as an assessment of damages for personal injury, loss of earnings and special damages. The appellant was represented by the first named solicitors in those proceedings until approximately May 1999, when the respondent firm of solicitors, Fabian Cadden & Co., came on record. On 27th November 2006, the appellant issued fresh proceedings in the High Court in which he claimed damages for, in effect, the professional negligence of the respondent in and about the manner it prepared and processed his personal injury action against Bus Éireann. On 14th April 2015, the High Court (O’Malley J) held that, having heard the appellant's evidence, it was impossible to avoid the conclusion that he was attempting, in reality, to re-litigate the issues in the Bus Éireann case and obtain damages from the respondent on the basis that he should have achieved a better result than he did. O’Malley J held that this was not a permissible course of action and was an abuse of the process of the court. The appellant appealed to the Court of Appeal against that judgment and the related Order of the High Court dated 24th April 2015, which was perfected on 29th April 2015.
Held by Mahon J that the appellant failed to establish that, as a matter of probability, the outcome of his personal injuries action against Bus Éireann was undermined or rendered unsatisfactory because of any professional failure on the respondent’s part, or, indeed, his entire legal team. Mahon J was also satisfied that the hearing of the case by O’Malley J was conducted in an exemplary fashion, as was made evident by her detailed judgment. Mahon J held that he would therefore dismiss the appeal. Appeal dismissed.
Vesey, Patrick v Kent Carty and Fabian Cadden & Co
26/10/2016 No. 2015/268 [2016] IECA 302

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Damages - Psychiatric injury - Underlying medical condition - Award of general and special damages

Posted 17/11/2016

Facts: The action arose out of an accident wherein the plaintiff was trapped in a lift for a short period due to the malfunctioning of the doors of the lift. The plaintiff contended that the plaintiff was entitled to damages because of the psychiatric injury suffered by the plaintiff due to being trapped in the lift. The plaintiff contended that the plaintiff had a reaction to the accident, which was out of norm due to the underlying conditions of claustrophobia, and anxiety, which had existed since the plaintiff’s childhood. The defendants contended that an irrational fear of suffering an injury in future, which gave rise to psychiatric symptoms, could not be compensated in damages. 
Held: Mr. Justice Barr awarded general damages to the plaintiff. The Court further awarded special damages in respect of counselling and travel expenses, both to date and into the future to the plaintiff. The Court held that the accident had caused the plaintiff to suffer psychiatric injury from being trapped in the lift. The Court accepted that the extent of that injury was somewhat out of the norm, because the plaintiff had suffered from claustrophobia as a child. The Court found that the accident caused worsening or resurfacing of the underlying medical condition, which the plaintiff had suffered as a child.
Dicker, Marie v The Square Management Limited and anor
7/10/2016 No. 2016/5401 P [2016] IEHC 570

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Dead woman's eye-loss case cannot go ahead

Posted 17/11/2016

A legal action for damages by an elderly woman who died before her appeal against the dismissal of her case was decided cannot be continued for the benefit of her estate, the Supreme Court has ruled.

Bridget Doyle was aged 79 when she underwent surgery at the Royal Victoria Eye and Ear Hospital in January 2010 to remove a cataract from her left eye.

The surgery was unsuccessful, and post-operative complications required removal of that eye in February 2010 to prevent damage to her right eye.

Further complications arose, requiring further interventions in 2010 and 2012, and this left her often depressed and reliant on family members for care.

In June 2011, she initiated proceedings alleging she had not given informed consent to the surgery and administration of a general anaesthetic. The claims were denied.

In December 2013, Mr Justice Eamon De Valera gave judgment dismissing her claim. An appeal was lodged in January 2014, but Mrs Doyle passed away on July 11 of that year.

The proceedings were reconstituted and the Supreme Court directed a hearing on whether the cause of action survived her death.

Her side said the claim for general damages survived, plus a claim for €90,000 for care services provided by Edward Doyle to his mother between 2010 and 2012

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Dwelling house Relief (DWR)

Posted 15/11/2016

DWR will be subject to significant change in the Finance Act 2016. Changes were introduced at Committee Stage (pages 34-37) and may be subject to further amendment.

At present it is possible for a person to allow another person to live in a dwelling that they own for three years without living there themselves and then to give them the property free from CAT. This will no longer apply after the Finance Act, 2016 has come into effect.

With very limited exceptions, the relief will be limited to inheritances. There will be a new condition that the donor and the beneficiary / beneficiaries all live in the dwelling at the same time at the date of the inheritance, with limited exceptions due to illness.


Probate Office requirements

Please note, when lodging an application for a Grant of Representation (Probate, Administration Intestate, etc.) practitioners should lodge the original sworn oath and two ordinary copies instead of just one.

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Company law – Appointment of receivers – Injunctions – Appellant seeking injunctions restraining the alteration by the respondent, of its status and recording that notification had been received from the lender that receivers had been appointed over prope

Posted 10/11/2016

Company law – Appointment of receivers – Injunctions – Appellant seeking injunctions restraining the alteration by the respondent, of its status and recording that notification had been received from the lender that receivers had been appointed over property – Whether respondent is given administrative discretion in the manner in which information is organised on the register

Facts: Following an appearance in action entered by the defendants, the plaintiff sought liberty to enter final judgment against each of the three defendants. The plaintiff’s claim against each of the defendants was for a sum, plus the appropriate interest on foot of guarantees in writing referable to an advance of money to the borrower. The plaintiff contended that the defendants had no bona fide defence to the proceedings and that the appearances entered were solely for the purpose of delay. The defendants raised many defences, including the absence of legal advice, personal issues, etc.
Held: Mr. Justice Hunt held that the plaintiff would have liberty to enter the final judgment against each of the defendants. The Court found that the issues raised by the defendants were simple and easily determined and that the defendants failed to raise any bona fide and arguable defence to the claim of the plaintiff. The Court held that the absence of independent legal advice in commercial context did not establish an arguable defence as there was no duty of care on the lender to advise the borrower about the necessity of availing of the legal advice prior to the execution of relevant documents. The Court held that mere difficulties would not be sufficient to avoid liability unless they were of a nature to adversely impact the capacity to contract. 
Allied Irish Banks PLC v Meade, Adrian and ors
3/10/2016 No. 2014/2784 S [2016] IEHC 562


Company law – Appointment of receivers – Injunctions – Appellant seeking
injunctions restraining the alteration by the respondent, of its status and recording that notification had been received from the lender that receivers had been appointed over property – Whether respondent is given administrative discretion in the manner in which information is organised on the register

 Facts: The appellant, Independent Trustee Company Ltd, in the High Court sought injunctions restraining the alteration by the respondent, the Registrar of Companies, of its status from “normal” and recording on the Register of Companies that notification had been received from the lender, West Bromwich Commercial Ltd, that receivers had been appointed over property, namely Gloucester House, Silbury Boulevard, Milton Keynes, England. It also sought declarations that ss. 107(1) and 317(1) of the Companies Act 1963 did not apply to the appointment of the receivers over the property. On the 16th January, 2015, the trial judge (Hunt J) dismissed all the claims. He held that the appellant held an interest in the property susceptible to the provisions of s. 99(1) of the 1963 Act; that s. 107(1) applied to the appointment of the receivers over the property and that s. 370(1) applied notwithstanding that the appellant was only the legal owner of the property and held it on trust for the unit holders of the sub-fund, Delta Fund 704530, a subdivision of the Delta Fund established by a declaration of trust made on the 2nd January, 2002, and later modified. The trial judge also decided that the respondent was not acting in excess of the powers granted her by the Companies Acts in applying a “status label” to a company. The appellant appealed to the Court of Appeal against the High Court judgment, focusing on the alleged error of the trial judge in deciding that the respondent's practice of recording the “status” of a company is not ultra vires her powers and that even if intra vires the designation “receivership” does not accurately represent the position in relation to the appellant in this case. The appellant also contended that the trial judge was in error in his construction of ss. 99, 107(1) and 317(1) of the 1963 Act. 
Held by Finlay Geoghegan J that the respondent has the statutory power and duty to organise the information on the electronic Register (and the paper Register if that is applicable) in a clear, organised and accessible manner and is given some administrative discretion in the manner in which that is undertaken. Finlay Geoghegan J held that the respondent is authorised to summarise in a clear way the fact of notifications including that of the appointment of a receiver to all or part of the property of a company (including that of which it is the legal owner and holds on trust) and in the summary to direct a person to the form of notification for the relevant details. Finlay Geoghegan J held that it is, however, impermissible to do so in a manner which implies that an appointment of a receiver to property of a company causes a change or a pending inevitable change in the status of the company. Finlay Geoghegan J held that the appeal should be allowed in part; the respondent remained entitled to file the E8 received in respect of the receivers appointed over the property of the plaintiff, but was not permitted to change the “status” of the appellant from “normal” to “receivership”. Finlay Geoghegan J proposed that the Court should hear the parties as to the precise form of relief in accordance with this judgment. Appeal allowed in part. 
Independent Trustee Company Limited v Registrar of Companies 
13/10/2016 No. 2015/165 [2016] IECA 274

 

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Banking & Finance - Letter of guarantees - Liberty to enter final judgment - Absence of independent legal advice - Duty of care of the lender - Bona fide and arguable defence

Posted 10/11/2016

Facts: Following an appearance in action entered by the defendants, the plaintiff sought liberty to enter final judgment against each of the three defendants. The plaintiff’s claim against each of the defendants was for a sum, plus the appropriate interest on foot of guarantees in writing referable to an advance of money to the borrower. The plaintiff contended that the defendants had no bona fide defence to the proceedings and that the appearances entered were solely for the purpose of delay. The defendants raised many defences, including the absence of legal advice, personal issues, etc.
Held: Mr. Justice Hunt held that the plaintiff would have liberty to enter the final judgment against each of the defendants. The Court found that the issues raised by the defendants were simple and easily determined and that the defendants failed to raise any bona fide and arguable defence to the claim of the plaintiff. The Court held that the absence of independent legal advice in commercial context did not establish an arguable defence as there was no duty of care on the lender to advise the borrower about the necessity of availing of the legal advice prior to the execution of relevant documents. The Court held that mere difficulties would not be sufficient to avoid liability unless they were of a nature to adversely impact the capacity to contract. 
Allied Irish Banks PLC v Meade, Adrian and ors
3/10/2016 No. 2014/2784 S [2016] IEHC 562

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Medical negligence – Medical procedure – Credible evidence – Appellant seeking to make a claim for negligence – Whether the appellant had established that there was no justification for the performance of an antenatal symphysiotomy at the time it was perf

Posted 3/11/2016

Medical negligence – Medical procedure – Credible evidence – Appellant seeking to make a claim for negligence – Whether the appellant had established that there was no justification for the performance of an antenatal symphysiotomy at the time it was performed 

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Contract – Termination – Whether relationship between parties lawfully terminated – Damages awarded in event termination not lawful

Posted 3/11/2016

Contract – Termination – Whether relationship between parties lawfully terminated – Damages awarded in event termination not lawful  

Facts: The appellant had purported to terminate the contract as a supplier to the respondents, who had been carrying on business as a supermarket. A claim was issued for sums outstanding to the respondent, followed by a counter claim by the respondents. Both were successful, with the effect that the sums awarded in damages and costs effectively set off the sums due under the claim. The appellant now sought to challenge inter alia the finding of wrongful termination on its part. 
Held by Mr President Ryan, the other Justices concurring, that the appeal would be allowed. Having considered the judgments below and the terms of the agreement between the parties, the Court was persuaded that the agreement did not impose a fiduciary duty on the appellant. As such, there was no overriding of the appellant’s ability to terminate in accordance with the terms of the agreement between the parties. The lack of written notice where there had been clear oral notice did not make the termination unlawful. 
ADM Londis PLC v Ranzett Ltd and ors 
19/10/2016 No. 2015/104 [2016] IECA 290

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Administration of estate – Legal personal representative –Administration de bonis non – Respondents seekinga declaration that the appellant was conflicted in his role as legalpersonal representative of their late father’s estate– Whether appellant shouldh

Posted 3/11/2016

Facts: The plaintiffs/respondents, Mr A Dunne, Ms Dormon, Mr J Dunne, Mr G Dunne, Mr C Dunne Jr, Mr D Dunne, Ms Ryan, Mr P Dunne and Mr M Dunne issued a motion on the 19th March 2015 seeking: (a) a declaration that the defendant/appellant, their brother, Mr W Dunne, was conflicted in his role as legal personal representative of their late father’s estate; (b) an order revoking the grant of administration de bonis non by which he became the legal personal representative of the unadministered estate of their late father; and (c) an order pursuant to s. 27(4) of the Succession Act 1965 allowing an independent person to extract new letters of administration de bonis non so that the administration of the estate may be fully and properly completed.

 

The reason why the plaintiffs contended that their brother was conflicted in his role as legal personal representative was that within his defence to  the plaintiffs’ claim for an order for the administration of their late father’s estate, and other reliefs, he pleaded that the plaintiffs’ were no longer entitled to their 1/42nd share in their father’s estate because their claims in that regard were statute-barred under s. 45 of the Statute of Limitations 1957 and/or that since both he, and his mother until her death in 2010 farmed the lands in question without interruption since the death of their father, they acquired a possessory title as against the plaintiffs under s. 125 of the 1965 Act, and accordingly that any claim that they would have to a share in the lands arising from the intestacy of their father had been lost.

 

The plaintiffs’ motion was heard by Cregan J, and on the 28th July 2015 he granted:(a) the declaration sought; (b) an order revoking, cancelling and recalling the grant of administration de bonis non dated 31st August 2011 which issued to the defendant; and (c) an order, pursuant to s. 27(4) of the 1965 Act, giving liberty to Mr Osborne, solicitor, to extract a new grant of administration de bonis non of that estate. Mr W Dunne appealed to the Court of Appeal against that order, submitting that the trial judge erred in:

 

1) characterising the circumstances of the case as being a serious, obvious and indefensible conflict of interest requiring his removal;

2) not applying the restrictive test;

3) failing to take into account the additional and needless expense of having the defendant replaced by an independent administrator; 4) failing to follow a line of authority which establishes that there is nothing untoward about a beneficiary pleading the statute even where he is also a personal representative, and stands to gain from doing so;

5) making a personal costs order against the defendant in respect of the motion. 

Held by Peart J that the trial judge was wrong to conclude that such conflict of interest as did arise by virtue of the pleaded defence on the statute was such as to require that Mr W Dunne be removed as legal personal representative, and replaced by an independent person as ordered. Peart J held that the trial judge took too narrow a view of the question of conflict of interest, and failed to give sufficient weight to the question of necessity.

 

In Peart J’s view, the replacement of the defendant as legal personal representative was not necessitated in the circumstances of the case. Peart J held that the appeal should be allowed, so that the action could proceed as presently constituted. Appeal allowed. 
Dunne, Arthur and ors v Dunne, William and in the matter of the estate of Cecil Dunne, deceased
11/10/2016 No. 2015/403 [2016] IECA 269

 

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Damages – Contributory negligence – Burden of proof – Appellant seeking damages for negligence – Whether trial judge erred in law in finding the appellant guilty of contributory negligence to the extent of 40%

Posted 1/11/2016

Facts: The plaintiff/appellant, Mr Nolan, brought a claim arising out of injuries sustained by him in a road traffic accident on 13th November 2015. On 20th January 2016, the High Court (Smith J) found that the second defendant/respondent, Mr Mitchell, had driven a motor vehicle owned by the first defendant/respondent, Mr O’Neill, in a negligent manner such that it had collided with Mr Nolan’s motor cycle causing him significant injuries. Concerning the liability issue the trial judge found Mr Mitchell principally to blame for the collision but made a finding of contributory negligence to the extent of 40% against Mr Nolan. As to quantum, the trial judge valued Mr Nolan’s claim for pain and suffering to the date of trial in the sum of €75,000 and for pain and suffering into the future at €50,000. With respect to his claim for loss of earnings to the date of trial, having made certain allowances for income earned post-accident and deductible social welfare payments, he considered Mr Nolan entitled to an award of €27,440. As to future loss of earnings, having concluded that, regardless of his injuries, Mr Nolan was capable of engaging in a wide variety of employment opportunities, he was satisfied that an award of €40,000 in respect of loss of opportunity would be appropriate. The High Court judge proceeded to dismiss Mr Nolan’s claim pursuant to s. 26 of the Civil Liability and Courts Acts 2004 having expressed himself satisfied that he had sought to exaggerate his claim by introducing evidence which he knew to be false or misleading and that in the circumstances of the case the dismissal of the action would perpetrate no injustice. The plaintiff appealed to the Court of Appeal against the judgment of the High Court. 
Held by Irvine J that two principal issues arose for the court’s consideration on this appeal, namely: (i) having regard to the facts found, did the trial judge err in law in finding Mr Nolan guilty of contributory negligence to the extent of 40%; and (ii) did the trial judge err in law when he dismissed Mr Nolan’s claim pursuant to the provisions of s. 26 of the Civil Liability and Courts Act 2004. Irvine J held that she was satisfied that the finding of contributory negligence of 40% on the part of Mr Nolan was excessive to the point that such finding must be set aside. Having regard to the evidence she favoured a finding of 20% contributory negligence. As to the decision of the trial judge to dismiss Mr Nolan’s claim based upon the provisions of s. 26 of the 2004 Act, Irvine J was satisfied that the trial judge erred in law when he concluded that the defendants had discharged the burden of proof required to succeed in their application to dismiss the claim under that section. Irvine J held that, having regard to her conclusions on the issue of contributory negligence, the damages sum must be reduced by 20%. She proposed an award in favour of Mr Nolan in the sum of €153,952. Appeal allowed. 
Nolan, Bill v O'Neill, Patrick and Danny Mitchell
21/10/2016 No. 2014/377 [2016] IECA 298

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Practice & Procedures - Discovery of documents - O. 31, r. 12 of the Rules of the Superior Courts - Damages for personal injuries sustained in the course of employment - Fair disposal of the case

Posted 1/11/2016

Practice & Procedures - Discovery of documents - O. 31, r. 12 of the Rules of the Superior Courts - Damages for personal injuries sustained in the course of employment - Fair disposal of the case  

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Defamation - Representation of the People - Damages - Discovery of documents – Relevancy - Expression of views

Posted 1/11/2016

Facts: Following the filing of a claim for damages filed by the plaintiff for alleged libel arising out of the contents of the two live radio programmes broadcasted by the first named defendant, the first named defendant had now filed an application for the discovery of two categories of documents. The first named defendant submitted that the discovery of those documents were necessary to prove that the plaintiff was the holder of the views expressed in the radio programme in question concerning the minimum age of consent to sexual activity.
Held: Ms. Justice Baker refused the application of discovery filed by the first named defendant. The Court held that the discovery of categories of documents sought was not relevant to the main proceedings and it was merely a fishing exercise. The Court held that the first named defendant wanted the discovery of materials, which were not pleaded to be defamatory.
Norris, David v Radio Teilifis Eireann and Helen Lucy Burke
13/10/2016 No. 2012/5318 P [2016] IEHC 554

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Solicitors (Money Laundering and Terrorist Financing) Regulations 2016

Posted 30/10/2016

LAW SOCIETY OF IRELAND PRACTICE NOTE
Solicitors (Money Laundering and Terrorist Financing) Regulations 2016
Under the provisions of the Criminal Justice (Money Laundering and Terrorist Financing) Acts 2010 and 2013 (the AML legislation), solicitors - as ‘designated persons’ for the purposes of this legislation - have statutory obligations to adopt policies and procedures to prevent and detect the commission of money laundering and terrorist financing (e.g. solicitors must apply Client Due Diligence procedures to their clients in specific circumstances).
The AML legislation also creates a reporting obligation for all designated persons under section 42(1) of the AML legislation. It requires designated persons (e.g. solicitors) to report to An Garda Síochána and the Revenue Commissioners any knowledge or suspicion they have that another person is engaged in money laundering or terrorist financing. In addition to imposing a legal obligation to make a report when there is a suspicion or actual knowledge, the legislation requires a report to be made when reasonable grounds exist for knowledge or suspicion. Designated persons will not be able to rely on an assertion of ignorance or naivety where this would not be reasonable to expect of a person with their training and position.
As the “Competent Authority”, the Law Society is statutorily required under Section 63(1) of the AML legislation to “...effectively monitor the designated persons for whom it is a competent authority and take measures that are reasonably necessary for the purpose of securing compliance by those designated persons” with their statutory AML obligations.
The Law Society has decided to introduce a statutory instrument in order to assist solicitors in understanding and clarifying their existing obligations as “designated persons”, and to set out how the Law Society monitors compliance with these obligations.
The statutory instrument does not impose any new obligations on solicitors with regard to their statutory AML obligations, nor does it confer any new powers on the Law Society regarding its statutory role as the competent authority for solicitors (in the context of monitoring and securing their compliance with AML obligations).

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Practice & Procedures - Damages for defamation - Frivolous or vexatious proceedings - Matter of appeal - Striking off the proceedings

Posted 21/10/2016

Practice & Procedures - Damages for defamation - Frivolous or vexatious proceedings - Matter of appeal - Striking off the proceedings 

Facts: Following the proceedings instituted by the plaintiff against the defendants for defamation, the first named defendant, by way of the present application, sought an order to dismiss the said High Court proceedings on the ground that the proceedings were frivolous or vexatious. The plaintiff claimed defamation and damages on ground of mistake committed in the affidavits filed by the second and third named defendants. The plaintiff averred that the first named defendant should not have instituted possession proceedings against the plaintiff and the plaintiff sought damages for the alleged abuse of process. The plaintiff further claimed damages against the first named defendant for the loss of her property, which was a subject matter of the Circuit Court proceedings. 
Held: Mr. Justice Twomey struck out the proceedings issued by the plaintiff against the defendants on the ground that the proceedings were misconceived and bound to fail. The Court held that the plaintiff could not claim defamation and damages for a mistake committed in the affidavits, which had been corrected after reading out in the Circuit Court. The Court found that as the Circuit Court had granted the order of possession sought by the defendants, the Court could not reverse the said order as that was a matter for appeal, which had been lodged. The Court held that the plaintiff could not seek damages in higher court for the decision of the lower court as the correct procedure had been to appeal the decision of the lower court, which had been done in the present case.
O'Beirne, Cait v Bank of Ireland Mortgage Bank and ors
28/6/2016 No. 2015/8951 P [2016] IEHC 364

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Damages - Balance of probabilities - Contributory negligence - Deductions in award of damages - Costs

Posted 21/10/2016

Damages - Balance of probabilities - Contributory negligence - Deductions in award of damages - Costs 

Facts: Following the injury caused to the plaintiff’s hand when he was employed by the first named defendant to work on behalf of the second named defendant at an under construction site, the plaintiff now sought an order for damages. The plaintiff claimed that the state of ground at the time of the accident was wavy or uneven as a result of concrete being spread on water, which caused the plaintiff to fall and get injured. 
Held: Mr. Justice Twomey awarded general damages, future general damages, and special damages to the plaintiff on the ground that the defendants had been negligent in providing a safe place of work to the plaintiff. The Court, on the balance of probabilities, accepted the plaintiff’s evidence as regards the state of ground. The Court found that the plaintiff was 25% guilty of contributory negligence and thus, the awards were subject to 25% deduction. The Court also awarded costs to the plaintiff against the defendants. 
Jamroziewicz, Antoni v O'Neill Brennan Limited and anor
7/4/2016 No. 2010/5762 P [2016] IEHC 188

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Company - Ss. 160(2) and 150 of the Companies Act 1990 - Ss. 842 and 819 of the Companies Act, 2014 - Disqualification and restriction - Undisputed wrongful acts - Irresponsible conduct

Posted 21/10/2016

Facts: The applicants/liquidators, by way of the present application, sought an order to disqualify the first named respondent and restrict the second named respondent under s 160(2) and s. 150 of the Companies Act, 1990 and s. 842 and s. 819 of the Companies Act, 2014, respectively. The second named respondent fairly recognised the per se omissions, which could be attributed to the first named respondent. The second named respondent contended that the first named respondent, by acting deceitfully and fraudulently, had hindered compliance by the second named respondent. 
Held: Mr. Justice Tony O’Connor made an order to disqualify the first named respondent and a declaration to restrict the second named respondent. The Court found the commission of unchallenged wrongful actions by the first named respondent in connection with the companies and its creditors and thus, made an order of disqualification for five years under s. 160 (2) (a) of the 1990 Act or s. 842(a) of the 2014 Act. The Court held that it was not satisfied that the second named respondent acted responsibly in the matters of the company. The Court held that the plea of naivety and ignorance of potential deceit by the first named respondent could not excuse the necessity of the second named respondent to act responsibly. The Court held that having regard to the nature of work required to be performed by the second named respondent, the second named respondent ought to have made proper enquiry into the continuing noteworthy losses incurred by the company, according to the information available. 
Walsh, Joseph and anor v Barrett, Alan and anor and in the matter of Eventelephant Limited (in liquidation)
27/7/2016 No. 2013/335 COS [2016] IEHC 525

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Bankruptcy - Ss. 61(7) and 71 of the Bankruptcy Act, 1988 - Transfer of claims of the bankrupt - Intended purchase of chose in action of the official assignee - Interest of unconnected third party - Failure to adduce information - Lack of evidence - Locus

Nuisance – Tort – Trespass - Breach of duty - Easement Rights - Subterfuge or concealment - Damages - Injunction restraining the defendants

Posted 21/10/2016

Nuisance – Tort – Trespass - Breach of duty - Easement Rights - Subterfuge or concealment - Damages - Injunction restraining the defendants 

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Contract – Breach of contract – Summary judgment – Registration of judgment mortgage – Order for execution – Setting aside of judgment – Existence of real issues – Delay

Posted 17/10/2016

Contract – Breach of contract – Summary judgment – Registration of judgment mortgage – Order for execution – Setting aside of judgment – Existence of real issues – Delay  

Facts: Following the grant of summary judgment to the plaintiff by the Court in default of appearance of the defendant and issuance of an order for execution by the plaintiff, the defendant filed an application for setting aside that order of summary judgment on the basis that he had real and substantive defence against the plaintiff. The plaintiff contended that there had been considerable delay by the defendant in making the present application. 
Held: Ms. Justice Baker refused to grant the desired relief to the defendant. The Court held that it had jurisdiction to set aside its judgment to avoid injustice to the opposite party only if the defendant would show to the satisfaction of the Court that the defendant had a real defence. The Court found that in the present case, mere averments by the defendant that the machinery supplied to him by the plaintiff had not functioned properly in the absence of any engineering evidence would not be sufficient to cause the Court to set aside its judgment. The Court found that there had been significant delay in filing the present application by the defendant since more than two years had lapsed since the summary judgment was obtained by the plaintiff and the defendant did not take any concrete steps to remedy the loss caused to him. The Court, however, held that the defendant would not be precluded to bring an appropriate application for a stay on any further execution of the judgment by the plaintiff or in the alternative could file a counter-claim. 

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