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Company - S. 509 of the Companies Act, 2014 - Appointment of examiner - Availability of funds - Avoidance of the obligations of settlement agreement - Abuse of process - Good faith

Posted 4/10/2016

JJ Red Holdings Limited and in the Matter of Section 509 of the Companies Act 2014 
15/9/2016 No. 2016/313 COS [2016] IEHC 524

Facts: The petitioner/company had filed the present application to confirm the appointment of an examiner, which was opposed by a substantial creditor/landlord. The petitioner argued that it had a very strong core business, which was now in profit. The landlord contended that the presentation of the petition was an abuse of process in that it was an attempt by the company and/or its directors to avoid the obligations arising under the settlement entered into only three weeks prior to the presentation of the petition. 
Held: Ms. Justice Baker dismissed the petition of the company on the ground that the petition was not made in good faith. The Court held that the threshold test to be met by a petitioner under the Companies Act, 2014 was that a company had a reasonable prospect of survival following the approval of a rescue plan. The Court found that the evidence in the present case was that the funding was not in place and no reasonable prospect existed of the company as a going concern. The Court found that the effect of the appointment of an examiner in the present case was to avoid the onerous terms of the settlement entered into between the company and the landlord. 

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Notary Public - Petition – Appointment – Petitioner seeking to be appointed a Notary Public – Whether there were special factors allowing the appointment to non-contiguous counties

Enduring Powers of Attorney

Posted 2/8/2016

Enduring Powers of Attorney

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Mortgages - Failure to serve a letter of demand

Posted 20/6/2016

Start Mortgages Limited v Hanley [2016] IEHC 320 did not turn on the application or otherwise of the Code of Conduct on Mortgage Arrears (CCMA), when considering an argument put forward by Start Mortgages that it was not required (on the basis of the terms and conditions that applied to the mortgage loan) to serve a demand on the borrower, the High Court noted that it had never in practice encountered a lender that would take enforcement action against a defaulting borrower without first serving a demand. In particular, Mr Justice Max Barrett noted that: » a demand indicates that the bank is taking the default seriously; » a demand can focus the parties’ minds on whether a compromise can be reached; and » it was difficult to see how a lender could satisfy the requirements of the CCMA without serving a demand. An argument by Start Mortgages that the service of a summons equated to the service of a demand also failed, with Mr Justice Max Barrett noting that this would “...[fly] in the face of the behaviours expected by the [CCMA] – a code to which the court is entitled to look as evidence of general banking practice”.

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Section 34, Residential Tenancies Act 2004

Posted 8/4/2016

Tenants in Ireland have, by virtue of Part 4 of the Residential Tenancies Act 2004 (the 2004 Act), been protected from termination of their tenancy subject to certain conditions.  Prior to 2004 tenants could avail of a new tenancy, subject to compliance with certain statutory definitions, based on either 20 years’ continuous occupation of the premises or an improvement carried out by the tenant which doubled the letting value of the property.

The 2004 Act ushered in a new way of thinking and allowed for new tenancies based on 4 year cycles.  A tenant who is continuous occupation for a total of 6 months is entitled to remain in the property for a further 3 years and 6 months.  It should be noted that nothing will prevent parties from mutually agreeing a termination at any stage during the tenancy.

The ‘Part 4 tenancy’ is subject to six grounds, outlined in Section 34 of the 2004 Act.  These include, inter alia, where a tenant is notified of a failure to remedy an obligation under the tenancy and then fails to remedy said failure; where the accommodation is no longer suitable for the needs of the tenant; where the landlord wishes to substantially refurbish or redevelop the property; and where the landlord notifies the tenant of its intention to transfer its whole interest in the property for full consideration by virtue of an enforceable agreement to another within three months of the termination of the tenancy.

A recent High Court ruling considered the final ground above.  Ms. Justice Marie Baker considered a Private Residential Tenancies Board (PRBT) tribunal ruling which upheld a PRTB adjudicator’s decision that a notice to terminate the tenancy by reason of intention to sell was valid notwithstanding no stated intention to sell within 3 months of termination.

This decision related to a rented family home in Cabinteely which had been served notice by Mr. John McStay, receiver over certain assets of Durkan Homes.  The court held that where a notice is served on a tenant it must comply with both section 34 and section 62 of the 2004 Act.  The intention to sell must be stated as well as the intention to enter into a binding contract within three months of the termination.  It was the court’s opinion that the Oireachtas, when drafting the legislation, did not envisage that terminations could be grounded on the hope or expectation that an enforceable sale would arise.

It would seem prudent, given the ruling, that practitioners should take care when serving notices on rented family homes that the precise reasons for serving such notices and clearly outlined and that thorough research of the prevailing sales market is undertaken.

NOTE: The notice periods for termination of a tenancy by either landlord or tenant have recently been revised and can be found at http://www.prtb.ie/dispute-resolution/disputes/the-three-stages-of-a-tenancy/notice-periods-for-notice-of-termination

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Capital Gains Tax Threshold

Posted 2/2/2016

Increase in CGT threshold

There has been an increase in the Capital Gains Tax (CGT) threshold for residential property.

The Conveyancing and Taxation Committees would like to inform the profession that an increase in the CGT threshold to €1million was introduced under Section 42 of the Finance Act 2015 and came into effect on 1 January 2016.

This increased threshold applies solely in respect of disposals of residential houses / apartments, being defined as:

"including any building or part of a building used or suitable for use as a dwelling and any out office, yard, garden or other land appurtenant to or usually enjoyed with that building or part of a building."

The €500,000 threshold remains in place, as before, for disposals of all other Irish land and buildings (including commercial property).

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Perfect Pies Limited (in receivership) and Pearse Farrell v Chupn Limited

Posted 14/12/2015

Issue of unreasonable withholding of consent to assignment considered by the Commercial Court (01 December 2015)

In its recent decision in the case of Perfect Pies Limited (in receivership) and Pearse Farrell v Chupn Limited [2015] 11 JIC 0607, the Commercial Court has considered the difficult question of the unreasonable withholding of consent to the assignment of a commercial lease. This case involved interesting issues, in particular around a landlord potentially seeking to use the opportunity of an application for consent to assignment to pursue "ulterior motives" – in this case, to obtain possession of the premises.

Background 
This case relates to the Café en Seine premises on Dawson Street, Dublin (the Premises) which have for some time been occupied by Perfect Pies Limited (the Plaintiff) on foot of three separate leases (the Leases).  Pearse Farrell (the Receiver) was appointed receiver over the Plaintiff's assets, to include the leases relating to the Premises, in December 2009.  Chupn Limited (the Defendant) is a company within the group of companies owned and controlled by Mr Louis Fitzgerald (the Fitzgerald Group) and acquired the freehold interest in the Premises in October 2010.

Facts 
These proceedings initiate from a tender process whereby the Receiver intended to sell four properties of the Plaintiff, to include the Premises.  During that tender process, offers had been received from a number of prospective purchasers, to include one from Starpin Limited, a company connected to the Fitzgerald Group.  Ultimately, the Plaintiff acting by the Receiver agreed to assign its interest under the Leases to Sequana Management Limited (Sequana), a special purpose vehicle incorporated by Ardan Advisory Limited (Ardan). The agreement reached between the Receiver and Sequana was expressly subject to and conditional upon the landlord (ie the Defendant) providing its consent to the assignment of the Leases to Sequana. 

The Leases contained common and broadly similar provisions with regard to alienation, providing that the landlord would not unreasonably withhold or delay its consent to an assignment. The Leases went on to contain provisions with regard to the required financial standing of the assignee (to be of "good" or "satisfactory" financial standing) and with regard to possible sureties – the earliest of the three leases deemed it reasonable for the landlord to require that two directors provide guarantees for a period of not more than five years, while the later leases referred to both directors and / or shareholders, without reference to a time limit.

The Receiver applied to the Defendant's solicitors seeking consent on 15 September 2014. In this letter the solicitors for the Receiver set out information on Sequana and its incorporation and shareholding, similar information with regard to two proposed sureties (to include Ardan), financial information for these three parties and an offer of a guarantee from HSBC Bank.

In their first meaningful response to the request for consent, the Defendant's solicitors stated that the Defendant was not in a position to consider the issue of consent until such time as the Plaintiff detailed its proposals to address "significant breaches of the Leases" which it stated related to the following:

  1. Breach of the repair clause – the Defendant had served three interim schedules of dilapidation on the Plaintiff which it contended had not been complied with; and

  2. Breach of alienation provisions – a number of occupational licences of the Premises had been granted to third parties without, the Defendant argued, its permission.

A series of correspondence between the two parties ensued around these two issues, which were both contested by the Receiver, ultimately resulting in the Receiver issuing these proceedings on 18 November 2014. Immediately following the service of the plenary summons the Defendant's solicitors sent further correspondence raising, for the first time, issues with regard to the question of sureties and the quality of financial information and comfort furnished by the Plaintiff.

The Receiver submitted in evidence that the Defendant's real motive in withholding consent was its desire to obtain possession of the Premises (which it had failed to do via the Starpin tender bid) and that by raising issues with regard to breach of covenant in respect of repair and alienation the Defendant was not raising bona fide issues and was wrongfully refusing to consider the consent application.  In that context, the Receiver raised during the proceedings the fact that Avalondale Limited (Avalondale), a further company within the Fitzgerald Group, had petitioned the High Court on 14 January 2015 to wind up the Plaintiff (the Petition) on the basis of a debt originally owed to a third party but which had been acquired by Avalondale from that third party on 13 January 2015.  The Receiver argued that this attempt by a company controlled by the same ultimate shareholder as the Defendant to put the Plaintiff into liquidation was done with the intention of enabling a forfeiture of the Leases, which each provided for a right of re-entry where the tenant "being a company shall go into liquidation either compulsory or voluntary".

Conclusions 
In granting a declaration that the Defendant, in delaying and failing to consent to the Plaintiff's request for consent to assignment, acted unreasonably within the meaning of the leases and section 66 of the Landlord and Tenant (Amendment) Act 1980, Haughton J held that: 

  • The Defendant unreasonably withheld consent to the assignment to Sequana on the basis of an ulterior motive, namely the desire to obtain possession of the Premises. In this regard Haughton J held that, in his opinion, the Petition was an abuse of process, which was further compounded by the fact that evidence given in court contradicted averments made on affidavit – it had been stated on affidavit that the consideration for the acquisition of the related debt had been paid prior to the Petition, however it transpired in court evidence that only a small proportion of the consideration had been paid up front with the balance deferred pending the outcome of the Petition. 

  • The Defendant relied on spurious reasons, namely non-repair and lack of consent to licensees, to decline to consider the Plaintiff's application for consent to assignment.

  • Insofar as the Defendant might now be adjudged to have good reason to withhold or refuse consent based on the adequacy or otherwise of the tenant and sureties offered, the Defendant cannot now retrospectively rely on such issues to suggest that it acted reasonably in withholding consent. 

    The Court specifically distinguished this case from previous decisions in Rice v Dublin Corporation [1947] IR 425 and Irish Glass Bottle Co. Ltd. V Dublin Port Co. [2005] IEHC 89 where it had been held that a landlord may state grounds for refusal to the Court even if no reasons had previously been given – Haughton J states that to allow the Defendant give new reasons to the Court when, during the relevant period between the application for consent and the issuing of proceedings, it had withheld consent for an ulterior motive would allow landlords to refuse or decline consent for improper motives "with impunity" and later seek to rely on some good reason.  In this regard it was relevant that Mr Fitzgerald had in evidence claimed that his real objection to giving consent was the inadequacy of the financial covenant, yet this had never been raised with the Plaintiff prior to proceedings being issued.  Haughton J stated in this regard that "a landlord surely cannot be permitted to deliberately keep secret from the tenant what it claims to be the real reason for declining consent and later produce it like a rabbit out of the hat and rely on it in court".

The Court, however, refused to grant the second relief sought by the Plaintiff, which was an order dispensing with the requirement for the Defendant's consent to the assignment.  The Court made this refusal for the reason that, had the Defendant given due and proper consideration to the application for consent to assignment, it would have been reasonable to refuse consent on a number of grounds related to shortcomings in the sureties offered and the financial references provided prior to commencement of the proceedings.

Financial Covenant 
In giving his judgment, Haughton J made a number of obiter comments setting out his views with regard to the issue of the financial covenant on offer.  These comments were set out in the context of this particular case, given the likelihood that there will be a renewed application for consent.  However, the principles stated are of general interest in the context of consent applications and can be summarised as follows:

  1. The proposal of a special purpose vehicle without a financial track record as an assignee is not of itself a reasonable ground for rejecting the proposed tenant, but is a good reason for requiring one or more guarantors with sound financial credentials.

  2. In this particular case, it was not unreasonable for the landlord to seek one or more additional sureties, particularly having regard to the amount of the rent and the commitment of the incoming tenant to address repairs. If one or more sureties with reasonably vouched and satisfactory financial status were offered, it would not be reasonable for the landlord to insist that these sureties be directors, or even shareholders, in Sequana – the essence of the surety is that it should be a person or body to whom the landlord will be able to have practicable recourse to ensure the rent and other sums due under the lease are paid.  It is not reasonable for a landlord to insist on a requirement contained in the lease that directors provide personal guarantees where corporate or banking sureties that are reasonably financially sound are offered.

  3. It must be considered reasonable for a landlord to insist on seeing audited accounts for a least the last accounting year for a proposed surety before accepting it as guarantor.

  4. Where a surety is offered which is registered and has its centre of business or administration within an EU member state or the United States of America and agrees to subject to the jurisdiction of the Irish courts, that its guarantee will be governed by Irish law and nominates Irish solicitors to accept service of proceedings, there must be a view that the potential for difficulty in enforcing the security would no longer be a valid objection to the granting of consent.

  5. The fact that a tenant has the potential to offer a number of different surety options but does not offer all of these up initially is not a relevant consideration for the landlord – it is to be expected that in many instances concerning commercial premises there will be some negotiation of the terms of the landlord's consent and the tenant would not in normal circumstances have an obligation to put all their cards on the table at the outset.

  6. In considering what is offered by way of surety, a landlord is not entitled to a gold-plated guarantee, but only to "the same benefit in terms of financial reward and care of the premises" as enjoyed with the current tenant.

  7. It was unreasonable of the landlord to require that in lieu of an Irish bank guarantee it should receive a security deposit equivalent to 18 months' rent and rates – this was never envisaged under the Leases and would amount to the landlord securing an advantage from the granting of consent to which the landlord was not entitled.
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Company director fails to overturn a direction he pay €40,000 rent arrears on Foxrock home

Posted 11/10/2015

A COMPANY director has failed to overturn a direction he pay €40,000 rent arrears on his south Dublin home to his landlord, a bank-appointed receiver.

The Private Residential Tenancies Board (PRTB) was entitled to find software developer Michael Doyle is contractually obliged to pay rent to receiver Tom Kavanagh on a property at Rockbrook Hall, Bray Road, Foxrock, Dublin, the High Court ruled.

Mr Doyle and his family have lived there since late 2008.

Ms Justice Marie Baker said Mr Doyle entered into a residential tenancy agreement with Mark McInerney concerning the Foxrock property in December 2008.

The initial monthly rent of €5,000 was reduced by agreement in December 2010 to €3,000 per month.

Mr Kavanagh has agreed he must accept the reduced rent figure, the judge said.

 

Mr Kavanagh informed Mr Doyle in April 2013 he had been appointed receiver over some assets of Cheval Construction Ltd, of which Mr McInerney was a director and secretary, and asked that rent from then on be paid to him.

On October 11, 2013, Mr Kavanagh served a notice of termination on grounds rent had not been paid and seeking that Mr Doyle give up possession of the property.

Apart from a payment of €2,000 in May 2014, no rent was paid to Mr Kavanagh, the judge noted. 

Mr Doyle had on October 22, 2013, sought dispute resolution before the PRTB, arguing the termination notice was invalid.

A PRTB adjudicator, in a determination of December 11th 2013, found the notice was valid and directed Mr Doyle pay rent arrears of €40,098 within 28 days.

 

In High Court proceedings against the PRTB, Mr Doyle argued it had no jurisdiction to make a determination concerning rent when, he claimed, there was no dispute or complaint before the PRTB about any matter other than the termination notice.

In her judgment, Ms Justice Baker upheld the PRTB findings.

The Residential Tenancies Acts 2004-2009 provides either a tenant or landlord may refer a dispute for resolution, she said. 

Disagreeing with Mr Doyle's argument rent was not an issue before the PRTB, the judge said he was effectively saying the person who first refers the issue to the PRTB, fully delineates the matters that may be resolved in that process.

The PRTB and its adjudicator were entitled to inquire into each relevant aspect of the dispute, including rent arrears and the amount of those, which latter issue came to be "a matter of little contention" between the parties, she said. 

 

Documents sent by the PRTB to both sides in advance of the hearing made evident the question of rent arrears was "a live issue" in the file, that could have come as "no surprise" to Mr Doyle and the landlord also put before the adjudicator his claim for rent arrears.

Mr Doyle's primary argument, that the PRTB and its adjudicator were constrained in their approach because of how he had framed the dispute was incorrect "as a matter of law and as a matter of good sense".

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Shared accommodation and the PRTB

Posted 20/7/2015

In the current climate of housing shortages and increasing rents, many people find themselves looking for cheaper and more convenient accommodation, particularly in city centre locations. This can take numerous forms and, for some, can last for many years. Jackie Buckley and John Deignan look at the potential pitfalls involved.

It is important to note that this type of accommodation does not always bring the same level of protection that one would expect in a traditional letting situation and will not necessarily benefit from the protections afforded by the Private Residential Tenancies Act 2004 (“the Act”).

In many cases the issue to be considered will centre on whether or not the tenant has occupied a “dwelling”. This was addressed in the recent case of Tully v Private Residential Tenancies Board and Myrtle Roberts where the High Court upheld the decision of the Private Residential Tenancies Board Tribunal (“the Tribunal”) that the tenant did not occupy a “dwelling”.

Private Residential Tenancies Board

In March 2013, the tenant lodged a complaint against the landlord, with the Private Residential Tenancies Board (PRTB) in respect of a premises located at Newcastle, Co. Wicklow in which the tenant and the landlord both resided. The tenant had been residing in the property for some nine years prior to commencing proceedings. The landlord also ran a B&B in addition to providing rental accommodation to another tenant.

At first instance, a PRTB Adjudicator determined that the PRTB had no jurisdiction to assess the complaint based on the finding that the property was not “a dwelling the subject of a tenancy” under the Act. The tenant appealed to the Tribunal which upheld the Adjudicator’s decision. The tenant then appealed the decision to the High Court.

The High Court noted that section 3 (1) of the Act provides that the Act applies "to every dwelling, the subject of a tenancy." However, section 3 (2) (g) of the Act provides that it does not apply to a dwelling in which a landlord also resides. Furthermore, a "dwelling" is defined to mean "...a property let for rent or valuable consideration as a self-contained residential unit and includes any part of a building used as a dwelling." Thus, the issue was whether the part of the Property occupied by the tenant comprised a “self-contained residential unit”, and therefore a “dwelling”, for the purposes of the Act.

The Tribunal had found that the case did not concern a “self-contained residential unit” noting that the landlord, although accessing the property through a separate entrance, had full access to and use of the entire of the property excluding only the tenant’s bedroom. It noted that the other areas of the property were shared with the landlord, another tenant and guests staying in the B&B.

Accordingly, the High Court found that the Tribunal did not err in law in its interpretation of the provisions of s. 3 (2) (g) of the Act.

The High Court’s ruling therefore has significant implications for the legal relationship between landlords and tenants in circumstances where they share the same accommodation.

- See more at: http://hayes-solicitors.ie/Shared-accommodation---The-pitfalls#sthash.OAUKnPFj.dpuf

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This new Companies Act 2014 commenced TODAY

Posted 1/6/2015

The Companies Act 2014 commenced on the 1st June 2015. The new Act will affect all companies that are already on the register. The CRO has drafted forms and information leaflets regarding some of the main points of interest including Conversion and the LTD company, Requirement to Change Name, Mortgages, Liquidations, Strike-off, some of a Company Directors Duties and Re-Registration.

Updates

The CRO will issue ezine newsletters on a regular basis regarding the New Act. Sign up to the CRO Newsletter to make sure you receive updates regarding the legislative changes. We sent the following information leaflet to all directors detailing the main changes that are taking place.

New LTD Company Model  Designated Activity Company Model
It may have just one director but it must have a separate secretary if it has only one director. It must have at least two directors.
It can have between 1 and 149 members. It can have between 1 and 149 members.
It does not need to hold an AGM. It is required to hold an AGM where there are 2 or more members.
It has a one-document constitution which replaces the need for a memorandum and articles of association.  It will not have an objects clause because it has full unlimited capacity to carry on any legal business, subject to any restrictions in other legislation. It has a constitution document which includes a memorandum and articles of association. It has stated objects for which the company was incorporated.
It can claim eligibility for audit exemption (and dormant company audit exemption). It can claim eligibility for audit exemption and dormant company audit exemption.
It has limited liability and has a share capital. It is a Private company. It is a Private company and has limited liability. It has a share capital or is a private company limited by guarantee with a share capital.
It can pass majority written resolutions (special and ordinary). It can pass majority written resolutions.
Name must end in “Limited” or “Teoranta Name must end in “Designated Activity Company” or “Cuideachta Ghníomhaíochta Ainmnithe” unless qualified for an exemption.

 Important: Please Note

  • Existing private companies (limited by shares) - EPCs - on the register do not automatically become LTD companies on commencement date (1st June 2015). They operate under DAC legislation for the duration of the Transition Period.
  • EPCs do not have to change their name during the Transition Period.
  • EPC cannot avail of the features of the LTD company without having been converted first.

Frequently Asked Questions 
The Companies Act 2014 commenced on 1st June 2015. This Act replaces the Companies Acts 1963-2013 and only the new procedures should be followed from now on. The Act is a consolidation of the previous legislation with some new reform elements, several of which are introduced to ease the burden on businesses. 

Am I obliged to change the company type and convert? 
No. If, however, at the end of the transition period, 30th November 2016, conversion has not been effected, the Registrar of Companies will enforce the change and convert the company. However where a private company limited by shares (EPC) wishes to be a Designated Activity Company limited by shares, they must initiate the procedure or else 18 months after the commencement of the new Act, such companies which were incorporated under the previous Companies Acts, are automatically converted to the LTD company type. Please see timeframe set out below.

Timeframe for Conversion

Commencement Date

(1st June 2015)

New Act commences. Newly incorporated companies will be registered as one of the relevant new company types - LTD, DAC, CLG, PLC, PUC, PULC, ULC.

All existing Private companies limited by shares (EPCs) operate under Part 16 of the Act dealing with Designated Activity Companies until the end of the Transition Period only. 

 15 months later

31st August 2016

Final date for companies who wish to convert by re-registration to Designated Activity Company (DAC) to initiate procedure.

Thereafter may only re-register following procedure under Part 20 or following a section 57 Companies Act 2014 court order.

 18 months later

30th November 2016

Transition Period ends. Private limited by shares companies incorporated 
under old Acts which have not availed of the opportunity to convert will automatically be converted.

The CRO will give effect to the deeming provisions under section 61 Companies Act 2014. They are automatically converted to LTD company model.

 

The Designated Activity Company (DAC)

Only companies registered under the new Companies Act will be Designated Activity Companies (DAC).

A Designated Activity Company (DAC) is determined in Part 16 of the Companies Act 2014 and defined as a private company limited by shares with the capacity, including the power, to do only those acts or things set out in its constitution (memorandum of association) or a private company limited by guarantee and having a share capital with the capacity, including the power, to do only those acts or things set out in its constitution. So, a DAC company will have certain regulations in its constitution, detailing certain objects or articles of association which are not specified in the template LTD company constitution.

Private Guarantee companies are deemed to be DACs under Part 16 of the Companies Act 2014 on commencement of the Act - 1st June 2015.

Private companies (limited by shares), incorporated under the old Companies Acts, can convert under the new Act to a DAC limited by shares and unless during the transition period ,(18 months from commencement on 1st June 2015), they undertake the conversion process to become a DAC, they will be deemed instead to become a LTD company, private company limited by shares under Part 2 of the Act.

Any existing private company (limited by shares) (EPC) which has not completed the conversion process to a DAC will be deemed to be a LTD company instead. So it is important, that a company that was incorporated under the previous Companies Acts  which wishes to be a DAC undertakes the conversion process. Where a company has not passed the necessary resolution and wishes to still convert to a DAC, such a company can re-register as a DAC by using Part 20 of Companies Act 2014 or under section 57 court order. 

Features of the DAC include:

• Designated Activity Companies have a memorandum in their constitutions which state the objects for which the company is incorporated. 
• It has a constitution document which includes a memorandum and articles of association. 
• It has limited liability and has a share capital or is a private company limited by guarantee 
• It must have at least two directors. All directors must be over eighteen.
• It can pass majority written resolutions but cannot dispense with the need to hold an AGM.
• The name of the company must end in "Designated Activity Company" or "Cuideachta Ghníomhaíochta Ainmnithe" unless exempted
• It can claim eligibility for audit exemption and dormant company audit exemption.

Certain companies are specifically envisaged as being DACs. Examples include charities, management companies, companies limited by guarantee and companies which are incorporated for a specific purpose for which the shareholders wish the capacity of the company to be clearly defined. Certain companies are obliged to convert to a DAC - an existing private limited company that has published an offering document or obtained an admission to trading on a regulated market for its debentures.

(Debentures means debenture stock, bonds and any other debt instruments of a company or any forms of securitised debt, including depositary receipts in respect of such securities, whether constituting a charge on the assets of the company or not).

All Designated activity companies' names shall end with ‘Designated Activity Company’ or “Cuideachta Gníomhnaíochta Ainmnithe”. There is an exception to this as there is a power to dispense with DAC in the name of charitable and other companies under section 971 and section 1180 (guarantee companies without share capital). (References old section 24 Companies Act 1963). 

Conversion to DAC - Designated Activity Company

From Date of Commencement (1st June 2015) to End of Transition Period (18 months later, 30th November 2016), existing private limited companies, which are limited by shares, (EPCs) can convert to this company type. Conversion to this company type will require a change in name of the company as all Designated Activity Companies must include their company type at the end of their name. 

EPCs may wish to convert to this company type if they wish to have or retain specific objects for which the company was incorporated. Certain companies are obliged to convert to a DAC - an EPC that has published an offering document or obtained an admission to trading on a regulated market for its debentures. (Debentures means debenture stock, bonds and any other debt instruments of a company or any forms of securitised debt, including depositary receipts in respect of such securities, whether constituting a charge on the assets of the company or not). 

Under section 56, an EPC may convert to a DAC, Designated Activity Company. There are time constraints involved in the conversion process.

Time Constraint
In order to convert to a DAC, a private company (limited by shares) can pass an ordinary resolution within the 15 month transition period after the commencement of the Companies Act 2014 on 1st June 2015 and submit the new constitution and resolution together with the form N2 to the CRO. There are no filing fees required with this submission.

Other means of re-registration before the expiry of the transition period are: 
• if, three months before the expiry of the transition period,  a notice in writing requiring the company to do so is served on the company by a member or members of the company, who hold shares that confer, in aggregate, more than 25% of the total voting rights. 
• if, where anything is done by an existing private company, being something that which would not be in compliance with section 68 - limitation on offers of securities to the public- the company must re-register as a DAC before the expiry of the transition period. 
• if, instead of re-registering as a DAC, the company may by passing a special resolution, re-register as another type of company, meeting the requirements of that particular re-registration. 

Form N2 is submitted to the CRO together with the resolution to alter the company type as well as the company’s new constitution(memorandum and articles of association). The constitution will be in the format of Schedule 7 to the new Companies Act 2014 (DAC limited by shares). Now, if it is the case that the company does not have articles but relies instead on the regulations of Table A from the 1963 Act, then the new constitution should state that the articles comprise those regulations.

Despite the repeal of the previous companies acts, the regulations of Table A will continue in force where the company did not have registered articles in its constitution or where the M&A was governed in part by the regulations contained in Table A but 
• These regulations will not have force where they are inconsistent with a mandatory provision of the new Companies Act. 
• The regulations may be altered or added to by means of a special resolution under section 32 - Amendment of constitution. 
• Where Table A makes reference to any provision of the previous Companies Acts, that reference shall be read as being to the corresponding provision of the new Companies Act. 

Registration of Documents

Once the N2 form and associated documents are registered, a new certificate of incorporation will be issued by the Registrar of Companies. The company becomes the new company type only on the issue of this certificate.

Change to Company Name Required

All Designated Activity Companies, whether limited by shares or guarantee, must have the words “Designated Activity Company” or “Cuideachta Ghníomhaíochta Ainmnithe” at the end of their name.  The words “designated activity company” may be abbreviated to “d.a.c.” or “dac” (including either such abbreviation in capitalised form) in any usage after the company’s registration by any person including the DAC. The words “cuideachta ghníomhaíochta ainmnithe” may be abbreviated to “c.g.a.” or “cga” (including either such abbreviation in capitalised form) in any usage after the company’s registration by any person including the DAC.

Exemption from use of the Company Type in Name of Company

EPCs which were exempted under section 24 of the Companies Act 1963 as amended, will continue to be allowed to apply the exemption regardless of the fact that the Acts have been repealed - section 971(8) and section 1180(8) refer. Where reference was made in the previous exemption to “limited”/”teoranta” this now applies to the requirement to display the new company type. 

Under the new Act, the phrase “Designated Activity Company” or “Company Limited by Guarantee” may be dropped from the company’s name where the company is a Designated Activity Company or a Company Limited by Guarantee and the constitution of the company states that the objects will be the promotion of commerce, art, science, education, religion or charity. In addition, the company’s constitution must state that

(a) the profits of the company (if any) or other income are required to be applied to the promotion of the objects; 
(b) payment of dividends/distributions to its members is prohibited; 
(c) all assets which would otherwise be available to its members are required to be transferred on its winding up to another company whose objects are the promotion of commerce, art, science, religion or charity.

Such companies file a form G5 together with the application to incorporate. Companies which are converting to DAC status must submit the form G5 together with their application to convert to the new company type. It should be noted, however, that a company which is exempted from the obligation to use the words as part of its name, is still obliged to show on its letters and order forms the fact that it is such a company.

Companies incorporated under statute law such as semi-state bodies, after consultation with their relevant Minister, should convert to Designated Activity Company status. Such companies if they were incorporated without the requirement to include "limited" or "teoranta" as part of their name, will be exempt from the requirement to change their name but will still file a form N2.

What happens after the Transition Period? 
Under section 57, where a company failed to convert to a Designated Activity Company (DAC), the following people may apply to the High Court for an order directing that it should re-register as a DAC. 

The people who may apply are: 
• one or more members of the company who hold, or together hold, not less than 15 per cent in nominal value of the company’s issued share capital or any class thereof; or 
• one or more creditors of the company who hold, or together hold, not less than 15 per cent of the company’s debentures entitling the holders to object to alterations of its objects. 

Companies can always re-register from one type to another using Part 20 of the Companies Act 2014. 

Under Section 61 of the Companies Act 2014, if the private company has failed to convert by End of Transition Period (30th November 2016,18 months after commencement on 1st June 2015), the Registrar of Companies will apply the deeming provisions of the Act, the company will become a LTD company, a private company limited by shares registered under Part 2 of the new Act. The registrar will then issue a new certificate of incorporation to the company. The memorandum and articles of association of the company will then exist as a constitution and the constitution will comprise the existing memorandum, other than the provisions that contains its objects or provide for, or prohibit, the alteration of all or any the provisions of its memorandum or articles and the provisions of its existing articles

 Features of the new Company Models - LTD and DAC

New LTD Company Model Designated Activity Company
It may have just one director (but it must have a separate secretary if it has only one director). It must have a least two directors.
It can have between 1 and 149 members. It can have between 1 and 149 members.
It does not need to hold an AGM. It does need to hold an AGM where it has 2 or more members.
It has a one-document constitution which replaces the need for a memorandum and articles of association. It has a constitution document which includes a memorandum and articles of association.
It will not have an objects clause because it has full unlimited capacity to carry on any legal business, subject to any restrictions in other legislation. It has a memorandum in its constitution which states the objects for which the company is incorporated.
It can claim eligibility for audit exemption (and dormant company audit exemption). It can claim eligibility for audit exemption and dormant company audit exemption.
It has limited liability and has a share capital. It has limited liability and has a share capital or is a private company limited by guarantee with a share capital.
It can pass majority written resolutions (special and ordinary). It can pass majority written resolutions unless constitution states otherwise.
Name must end in "Limited" or "Teoranta" Name must end in "Designated Activity Company" or "Cuideachta Ghníomhaíochta Ainmnithe" unless qualified for an exemption.
 

 

Change of Company Name under new Companies Act 2014

The new Companies Act will require that each company type be included as part of the company name. For some types of company this will require an alteration to be made. The Act is not yet law. It will commence on 1st June 2015. The Transition Period will run from this date for 18 months until 30th November 2016.  Private limited by shares companies incorporated under the previous companies acts can convert to LTD Company or Designated Activity Company.

All other companies are deemed to be their respective type under the new Companies Act 2014. This may require some of them to alter their name.

Public Limited Companies

Public Limited Companies are deemed to be public limited companies under the new Companies Act by virtue of section 1018. Part 17 of the Companies Act deals with Public Limited Companies. Part 24 deals with investment companies. Public limited companies do not need to convert or alter their name.  

Private Guarantee Companies

Private guarantee companies are deemed to be Designated Activity Companies. (DAC). These companies do not need to convert to DAC status but must make an adjustment to their company names. All Designated Activity Companies, which are limited by guarantee must have the words “Designated Activity Company” or “Cuideachta Ghníomhaíochta Ainmnithe” at the end of their name unless exempted.

The words “designated activity company” may be abbreviated to “d.a.c.” or “dac” (including either such abbreviation in capitalised form) in any usage after the company’s registration by any person including the DAC. The words “cuideachta ghníomhaíochta ainmnithe” may be abbreviated to “c.g.a.” or “cga” (including either such abbreviation in capitalised form) in any usage after the company’s registration by any person including the DAC.

There is a transitional period, 18 months from Commencement Date of 1st June 2015, by which private guarantee companies which were incorporated under previous Companies Acts, can continue to not have the company type in their name.

Such companies should file form N3 to effect the name change.  If the company does not change the name of the company and submit an amended constitution using Form N3, the Registrar of Companies will change the name of the company and issue a new certificate of incorporation (unless the company already has an exemption).  Changes to the company name will affect company letterheads, stationery and signage. Any documentation submitted to the CRO after the end of the transition period (30th November 2016)  which bears the incorrect name will be refused.

Exemption to name change Companies incorporated under the previous Companies Acts which were exempted under section 24 of the Companies Act 1963 as amended, will continue to be allowed to apply the exemption regardless of the fact that the Acts have been repealed - section 971 refers. Where reference was made in the previous exemption to “limited”/”teoranta” this now applies to the requirement to display the new company type.

Format of Constitution - (memorandum and articles of association):

Schedule 8 - Private Guarantee Companies - Designated Activity Companies (DAC) limited by guarantee

Companies Limited by Guarantee (CLG)

Companies which are limited by guarantee and do not have a share capital are deemed to be Companies Limited by Guarantee (CLG) under section 1189. There is a requirement for Companies Limited by Guarantee to have the company type added to the end of the company name.  All newly incorporated Companies Limited by Guarantee will have the company type at the end of their name from 1st June 2015. (Unless exemption granted under section 1180).  “Company Limited by Guarantee” or “Cuideachta faoi theorainn Ráthaíochta” must form the end of the company name. Companies limited by guarantee are governed by Part 18 of the new Companies Act. There is a transitional period, until 30th November 2016,  by which guarantee companies which were incorporated under previous Companies Acts, can continue to use limited/teoranta in their name.  If the company does not change the name of the company and submit an amended constitution (memorandum and articles of association) using Form N3, the Registrar of Companies will change the name of the company and issue a new certificate of incorporation at the end of the Transition Period, 30th November 2016.  Changes to the company name will affect company letterheads, stationery and signage. Any documentation submitted to the CRO after 30th November 2016 which bears the incorrect name will be refused.

Schedule 10 to the Companies Act 2014 - Format of CLG constitution

Exemption to name change Companies incorporated under the previous Companies Acts which were exempted under section 24 of the Companies Act 1963 as amended, will continue to be allowed to apply the exemption regardless of the fact that the Acts have been repealed - section 1180 refers. Where reference was made in the previous exemption to “limited”/”teoranta” this now applies to the requirement to display the new company type.

Unlimited Companies

Companies which are unlimited, whether private or public, are deemed to be Unlimited Companies by virtue of section 1246. There is a requirement for all Unlimited Companies to have the company type added to the end of the company name unless they have an exemption granted by the Minister for Jobs, Enterprise and Innovation under section 1237 of the Companies Act 2014. 

All newly incorporated Unlimited Companies will have the company type in the company name from 1st June 2015.  “Unlimited Company” or “Cuideachta Neamhtheoranta” must form the end of the company name. Unlimited companies are governed by Part 19 of the new Companies Act.  There is a transitional period, until 30th November 2016, by which unlimited companies which were incorporated under previous Companies Acts, can continue to not have the company type in their name.  If the company does not change the name of the company and submit an amended constitution using Form N3 during the Transition Period, the Registrar of Companies will change the name of the company and issue a new certificate of incorporation. Equally if the company has been granted an exemption, this should be submitted with the Form N3 to prevent an incorrect name alteration.  Changes to the company name will affect company letterheads, stationery and signage. Any documentation submitted to the CRO after the end of the transition period, 30th November 2016,  which bears the incorrect name will be refused. Annual returns with the wrong company name would have to be returned.

Under the Companies Act 2014, constitutions (memorandums and articles of association) will be in the following formats. The link is to the Irish Statute Book.

  Company Types During the Transition Period

1.     Please note that the company type can be checked on www.cro.ie by using the Company Search Facility.

2.     For a full list of company types and their status during the Transition Period - please see Company Types page.

3.     It should be noted that Private Companies which are limited by shares for the duration of the Transition Period operate as Designated Activity Companies. Such companies do not need to change their name unless they are converting to DAC status. Once the Transition Period has ended they will be converted to LTD status unless the company has already done so or changed to a different type.  

4.     Exemptions to the company name including the company type are only available to Designated Activity Companies and Companies Limited by Guarantee and only then where the company meets specific requirements. Unlimited companies can apply to the Minister.

5.     Companies which already have an exemption to include Limited at the end of the name under the current Companies Acts, do not need to apply again and the exemption will now apply to their status as a Designated Activity Company or a Company Limited by Guarantee. However if Private Limited by shares companies which have an exemption currently convert or are converted to LTD company status then the exemption is removed as the exemption can only apply to DAC/CLG companies. All LTD companies must have either “Limited” or “Teoranta” at the end of their name.

Company Types during the Transition Period

Please note that the company type can be checked by using the Company Search Facility. The Transition Period is expected to end on 30th November 2016, 18 months after the commencement on 1st June 2015 .

Company Type during the Transition Period

Company Type 
under current 
Companies 
Acts

During the Transition Period

18 month period - from 1st June 2015

On End of Transition Period 30th November 2016

Will it Require Name Change?

Name 
exemption 
possible?

Private Limited by 
shares

Private Limited by shares - operate under the Designated Activity Company legislation

LTD company* unless
converted to DAC

No

No

Single member 
private company 
limited by shares

Single member private company limited by shares - operate under Designated Activity Company legislation

LTD company* unless
converted to DAC

No

No

Private, limited by 
shares, licence to 
omit ltd

Private, limited by shares, licence to omit ltd - operate under DAC legislation

LTD company* unless
converted to DAC

Yes

No

*It should be remembered that all Private Limited by Shares companies can convert to the Designated Activity Company type, by re-registering, during the Transition Period using form N2. Where Private limited by shares companies do not convert to either the LTD/DAC model, then the Registrar of Companies will give effect to the conversion requirements and the companies will become LTD companies.

Private guarantee 
with share capital

Designated Activity Company (limited by guarantee)

Designated Activity Company (limited by guarantee)

Yes. By end of transition period ,30th Nov 2016,must include type at end of 
name.

Yes

Private guarantee 
with shares, 
licence to omit ltd

Designated Activity Company (guarantee licence)

Designated Activity Company (guarantee licence)

No

Exemption 
still applies 
from old Act

Single member 
company ltd by g/ 
tee with sh/cap

Designated Activity Company (limited by guarantee)

Designated Activity Company (limited by guarantee)

Yes. By end of transition period, 30th Nov 2016, must include type at end of 
name..

Yes.

Private unlimited 
with share capital

ULC - Private Unlimited Company

ULC - Private Unlimited 
Company

Yes. By end of transition period must include type at end of name.

Yes. Exemption possible under section 1237.

Public unlimited 
company with a 
share capital

PUC - Public Unlimited Company

PUC - Public Unlimited 
Company

Yes. By end of transition period must include type at end of name.

Yes. Exemption possible under section 1237.

Public unlimited 
company without
share capital

PULC - Public Unlimited Company without share capital

PULC - Public Unlimited Company without share capital

Yes. By end of transition period must include type at end of 
name.

Yes. Exemption possible under section 1237.

Guarantee company without a share capital 
(public)

CLG - Company Limited by Guarantee

CLG - Company Limited by Guarantee

Yes. By end of transition period must include type at end of name.

Yes

Guarantee licence company w/o sh/capital 
(public)

CLG - Company Limited by Guarantee (licenced company)

CLG - Company Limited by Guarantee 
(licenced company)

No.

Exemption 
still applies 
from old Act

Public limited company

PLC -Public limitedCompany

PLC -Public limited Company

No

No.

Public limited company (closed ended)

PLC - Public Limited Company (closed ended)

PLC - Public Limited Company (closed 
ended)

No

No

Public limited company with variable capital

PLC - Public limited company with variable capital

PLC -Public limited company with 
variable capital

No

No

PLC - Societas Europaea 
conversion

PLC- Public Limited Company

PLC- Public Limited Company

No

No

Inward Migrating Company

PLC - Public Limited Company with variable capital

PLC - Public Limited Company with variable capital

No

No

Societas Europaea

Societas Europaea

Societas Europaea

No

No

U.C.I.T

U.C.I.T

U.C.I.T

No

No



 

 
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Companies Act takes effect and will be ‘single rulebook’

Posted 1/6/2015

A new Companies Act expected to cut red tape for businesses in Ireland comes into effect today. The Small Firms Association (SFA) welcomed the Act, which simplifies and modernises company law.The “single rulebook” will replace a “mosaic” of legislation which has proliferated since the original 1963 Companies Act, said SFA director Patricia Callan.

“It has the potential to reduce red tape and make it easier to operate a business in Ireland, with potential benefits for current and aspiring owner managers and for our economy and society as a whole,” Ms Callan said.

 

‘Simpler construct’

The SFA is particularly pleased by the creation of a new type of private limited company, which it says will be a “much simpler construct” than has existed up to now.

 

“The new Companies Act puts smaller firms at the heart of the regime for the first time – but businesses need to understand the changes and take a number of actions if they are to reap the full benefits.”

The new simplified type of private limited company ushered in by the Act will have a one-page constitution, a requirement for just a single director and reduced administrative compliance obligations.

The Act sets out company directors’ duties for the first time and introduces a new “summary approval procedure”, that bypasses the need for High Court approval for activities such as capital reductions and solvent windings up.

 

New regime

Existing companies must decide, within 18 months, whether to opt in to the new regime for private companies limited by shares (CLS) or opt out by becoming a designated activity company (DAC) or some other type of company.

 

If, by the end of that period, a private limited company has not chosen one of these options, it will automatically become a CLS.

Businesses that do convert should make the switch as early as possible, Ms Callan added, urging them to “think about what is right” for the future of their company.

Small companies should also check if they qualify for an audit exemption and clarify if their financial statements should be filed under the new or the old legislation, she said.

The Companies Registration Office wrote to every director last month to remind them of changes coming into force.

The Companies Act 2014 is the largest piece of legislation ever seen in Ireland and has implications for almost every business operating here.

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Cantillon: golden rule for Europe is to keep it as simple as possible - The EU’s fiscal regulations can be a minefield and create more questions than answers

Posted 30/5/2015

The IMF’s plea for simpler fiscal rules in Europe makes sense. Dizzying in their technical complexity and fiendishly arcane by operation, the rules are a mystery. Compliance and enforcement are “fairly weak”, says the IMF. Better to refine the framework to make it more robust and more readily understandable.

The IMF seeks a new two-pillar system. With the debt-to-GDP ratio its fiscal anchor, the system would enforce a single operational rule in respect of expenditure growth and possibly an explicit debt correction mechanism. The aim, of course, is to prevent the build-up of fiscal imbalances and support fiscal and macroeconomic sustainability.

That’s all for the good, though slippery questions arise. These centre on the execution of regime change and on the execution of the rules themselves.

As the IMF makes clear, certain elements of the overhaul may face legal obstacles. It also warns that “wholesale treaty changes” may be required. To say the political classes right around Europe are not quite enthused at this kind of thing is to put it mildly. Another Irish referendum? Moreover, Ireland is far from the only member state with an aversion to re-opening European treaties. Political considerations abound.

Then there is the practical application of such rules. The IMF calls for greater automaticity in enforcement, a more credible set of sanctions for errant member states and better co-ordination of fiscal policy monitoring.

In theory that all sounds wonderful. But political considerations arise here too also – and more to the point, they arise in the heat of political real-time.

One of the prime bugbears in talks on the current rules was resistance to anything approaching automatic sanctions. This led to semi-automatic sanctions – and inevitable parallels with weaponry. Compliance also remains weak. France received a reprieve from Brussels in February on its deficit targets, its third such reprieve.

No surprise. But would the major EU powers have it any other way?

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The death has occurred of Cathal YOUNG, Ashe Street, Cavan & Blackrock, Dublin

Posted 23/1/2015

Peacefully in Blackrock Clinic with great dignity and courage after a long illness. Beloved husband of Anne, much loved father of Sharon (Quinlan), Aisling (Dargan), Fergal, Orla (Dunne) and Cathal (C.B.), beloved brother of the late Anthony and Michael. He will be very sadly missed by his wife, children, sons and daughters-in-law, grandchildren, nieces, nephews, extended relatives, everyone at Cathal N. Young, O’Reilly & Co., and friends especially his sporting comrades at Cavan Gaels, U.C.D., Civil Service G.F.C. and Woodbrook G.C.

May He Rest in Peace.

Reposing at Carnegies Funeral Home, Monkstown, on Monday 26th Jan, from 2pm to 4pm with removal to Our Lady of Perpetual Succour Church, Foxrock, arriving at 5pm. Funeral Mass at 11.30am on Tuesday (27th Jan) followed by burial in Shanganagh Cemetery. Family flowers only please. Donations, if desired, to the Irish Cancer Society.

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McKillen wins court battle against Barclay brothers

Posted 19/12/2013

McKillen wins court battle against Barclay brothers over loans

The brothers, who defeated the Belfast-born businessman in London last month for control of three luxury hotels there, must wait until next year to find out if they are the winning bidders.

Yesterday, the High Court set a trial date of March 4 next for a legal challenge by Mr McKillen to prevent the former Anglo Irish Bank selling the €246m tranche of McKillen loans to the Barclays.

The case came before the High Court on the deadline day for any initial bids for the McKillen tranche to be lodged with the special liquidators of Irish Bank Resolution Corporation (formerly Anglo).

A final decision on the winning bid is expected to be made next March. If Mr McKillen wins his case, the liquidators have said they will abide by the court's decision.

DELAY

The case will be rendered moot if the Barclays do not emerge as the winning bidders.

But if the twin brothers are selected as the bidder, the sale could be delayed for months as Mr McKillen's challenge -- and any subsequent appeal -- will be heard before any sale proceeds.

The delay could help boost McKillen's chances of refinancing his loans. Subject to the Barclays winning the bid, the case will open on March 4 and is listed for six days.

Yesterday, Cian Ferriter for the liquidators, told Mr Justice Paul Gilligan the stage-two bidding process for the loans will begin next month -- and his clients are anxious the litigation should not impact on the loans' sale process.

The liquidators were effectively caught in "the crossfire" in the battle between Mr McKillen and the Barclays, and appeared to have been joined to the case purely to ensure any orders granted to Mr McKillen could be put into effect, Mr Gilligan said.

Michael Cush, for Mr McKillen, agreed his client's dispute was with the Barclays -- and said the sides had agreed the injunctions application did not need to proceed now, as the sides had agreed on an early "telescoped hearing" (a hearing where the issues would be narrowed down) next March.

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Ahern v Dublin Bus

Posted 2/12/2013

Ahern .v. Dublin Bus (Supreme Court, 2nd December 2011). The Plaintiff, who was 78 at the time of her accident, was awarded €40,000 by the High Court for injuries which she sustained whilst she was travelling on the Defendant’s bus on 16 May 2006.

 

Judgment delivered on the 2nd day of December, 2011, by Denham C.J.


1. This is an appeal by Bus Éireann, the defendant/appellant, referred to as “the appellant”, from the decision of the High Court (Feeney J.) made on the 16th May, 2006, at Limerick, insofar as the said order provides that the plaintiff/respondent, referred to as “the respondent”, is entitled to recover damages and costs of her action against the appellant.

2. The undisputed facts of the case in the High Court were that on the 13th November, 2004, the respondent was travelling as a passenger on the appellant’s bus near the junction of Hartstonge Street and O’Connell Street in Limerick when the driver was forced to brake heavily to avoid a collision with a car which pulled out in front of the bus.

3. As a consequence, the respondent fell from her seat and injured her face, chest, left thumb and lower left leg.

4. Liability was not in issue in the High Court.

5. However, the nature and extent of the injuries suffered by the respondent as a result of the accident were in contest. In particular, there was a dispute about the respondent’s claim that she needed a carer as a result of the accident, which grounded a special damages claim of €177,000.00.

6. The case came on for hearing before the High Court in Limerick on the 8th, 9th and 10th May, 2006. Judgment was delivered on the 16th May, 2006.

7. At the conclusion of the respondent’s case, the claim for special damages for care into the future was withdrawn, after the cross-examination of the respondent.

8. The respondent succeeded in her claim against the appellant in that the High Court assessed damages and awarded general damages of: (a) pain and suffering to date: €25,000; and (b) pain and suffering into the future: €15,000; being a total of €40,000.

9. The High Court also ordered that the respondent receive the costs of the action against the appellant on the basis of a two day hearing, when taxed and ascertained. However, it was ordered that the costs of the actuary’s report and the report of Nurse Noreen Roche be refused.

High Court Judgment

10. At the commencement of his judgment, the learned High Court judge pointed out that the defence proceeded on the basis that the conduct of the claim was a fraudulent action within the terms of s. 26 of the Civil Liability and Courts Act, 2004, referred to as “the Act of 2004”, and that the claim should be dismissed. The appellant had relied on s. 26 of the Act of 2004 with three factual bases:-

(a) The respondent did not require the assistance of a carer and that there was no consequence of the injuries she received properly giving rise to such a claim;
(b) the respondent had provided false and misleading evidence, averments, information, relating to the psychological consequences of the accident, including her ability to travel alone; and,

(c) the second affidavit of verification sworn by the respondent on the 17th February, 2006, was false or misleading in a material respect, and known to be false by the respondent.

On this basis the appellants argued in the High Court that pursuant to s. 26 of the Act of 2004, the plaintiff’s claim should be dismissed.
Onus of Proof

11. The learned High Court judge held that the onus of proving the applicability of s. 26 of the Act of 2004 rested on the appellant.

The Respondent

12. The learned High Court judge described the respondent. He stated that at the time of the accident she was a 78 year old widow, determinedly independent, and in receipt of considerable family support and assistance, particularly from a number of daughters. She had a history of suffering from stress and had required medication; the stress was controlled by drugs. There had been a history of mild elevated blood pressure but not sufficient to require medical intervention, and that such a condition was not unexpected at her age. She also had extensive pre-existing osteoarthritis. The learned High Court judge held:-

“It was accepted that due to the history of stress that the [respondent] was a somewhat fragile candidate for an accident even given her age and pre-existing osteoarthritis.”
Physical Injuries and Sequelae

13. The High Court held that the physical injuries and their sequelae lasted a number of months. The learned High Court judge held:-

“It is difficult with a person, such as the [respondent], to disentangle continuing complaints concerning her knee, mobility, and endurance, from her pre-existing medical history and her increasing age. This problem is not as a result of any invention of continuing physical problems, but rather as a consequence of age and osteoarthritis.”
The learned High Court judge pointed out that the respondent had noticed a deterioration in her capacity for total physical independence since the accident.
He held:-

“If the [respondent] was failing to give a detached medical assessment of which continuing symptom or symptoms are due to the accident, and could objectively be said to have overstated the connection, it can be no more than an understandable exaggeration of the [respondent’s] subjective belief.”
Stress
14. The High Court found that the position with regard to stress following the accident was also complicated by a pre-accident history of stress. Reference was made to the evidence of Dr. Malone that the accident damaged the respondent’s confidence and that the anxiety suffered by the respondent had an acute period in November/December 2005 which caused panic attacks at night and required additional medication. The High Court held:-

“The probability is that this increased anxiety was linked to the accident and I accept the evidence to that effect.”
The High Court was not persuaded that the diagnosis of a depressive disorder had been established. However, the High Court did accept that the respondent had always been a worrier and somewhat fragile for this type of accident. Thus the presence of significant anxiety from the accident was accepted.
Claim for Care

15. The High Court held:-

“The main area relied on to support a finding under s. 26 by the [appellant] relates to a claim for care. Absent the [respondent’s] daughters, it might be the case that the [respondent] has reached the age and a health condition where some help, or care, or minding, might be required. On the physical side the Court is satisfied that the [respondent’s] deterioration is more likely to be linked to her age and her pre-accident osteoarthritis, but the Court does not, and should not, draw any adverse findings in forming that view. Such linkage is, in this Court’s view, within category B in Ms. Justice Denham’s categorisation, and the Court is satisfied that any reliance on the need for increased care or minding has not been deliberately exaggerated, and it cannot be said that the [respondent’s] evidence, or the evidence adduced by her, or in her affidavits, is in this respect knowingly false or misleading.”
Travel by Bus and Requirement to be Accompanied
16. A further area considered was the claim as to her ability to travel by bus and the requirement to be accompanied. The learned trial judge reviewed the facts and held:-

“The overall picture is not one of deliberate falsehood or intention to mislead, but of a history which is not precisely correct on every detail as recorded, but which provides a substantially correct overview. The Court found the [respondent] to be overall a truthful witness even if every detail of her narrative was not necessarily precise. The Court is satisfied that she did not give, or cause to be given, any false or misleading evidence, and any inaccuracies were neither material or knowingly false or misleading.
The Court is also of the view that Section 26(1) refers to the giving of evidence or adducing of evidence, and that such subsection is not dealing with information provided outside the Court, and the Court rejects any interpretation to such effect. Even if I am wrong on that point, the Court is of the view that on the evidence it cannot be said that the [respondent] knew evidence to be false or misleading.”

17. The High Court addressed specifically the claims under s. 26 of the Act of 2004 and determined that the provisions do not apply to this action
Notice of Appeal

18. Against the order and judgment of the High Court the appellant has appealed. The grounds of the appeal filed include the following:-

(a) The learned trial judge erred in law and in fact in failing to dismiss the action of the respondent under the provisions of s. 26(1) of the Civil Liability and Courts Act, 2004.
(b) The learned trial judge erred in law and in fact in failing to dismiss the action of the respondent against the appellant under the provisions of s. 26(2) of the Civil Liability and Courts Act, 2004.

(c) The learned trial judge erred in law and in fact in failing to determine that the respondent gave or adduced or dishonestly caused to be given or adduced evidence which was false or misleading in any material respect and which she knew to be false or misleading.

(d) The learned trial judge erred in law and in fact in failing to determine that the respondent had sworn an affidavit under s. 14 of the Civil Liability and Courts Act, 2004, which was false or misleading when swearing the affidavit.

(e) The learned trial judge erred in law and in fact in determining that the respondent was a truthful witness overall and in determining that the respondent did not know that her evidence was false or misleading or in determining that the respondent did not have an intention to mislead the Court.

(f) The learned trial judge erred in law and in fact in determining that the section 14 affidavit filed by the respondent in these proceedings was not false or misleading in a material respect or in determining that the respondent, when swearing the said affidavit, did not have a deliberate intention to tell an untruth or to mislead the Court.

(g) The learned trial judge erred in law and in fact in determining that the appellant failed to establish that s. 26 of the Civil Liability and Courts Act, 2004, applied to the facts of this case.

(h) The learned trial judge erred in law and in fact in determining that the burden of proof on the appellant under s. 26 of the Civil Liability and Courts Act, 2004, was higher than simply on the balance of probabilities but instead was on the basis of the balance of probabilities having regard to the additional burden the appellant had to meet having alleged fraud.

(i) The learned trial judge erred in law and in fact in approaching s. 26 of the Civil Liability and Courts Act, 2004, on the basis that it approximated to an allegation of fraud at common law and that the burden of proof on the appellant was not discharged unless the appellant met the proofs to the standard required when such an allegation was made. In short, the learned trial judge applied the wrong test.

Submissions
19. Written and oral submissions were made to the Court on behalf of the appellant and the respondent.

Legislation

20. The appeal in this case raises issues on s. 26 of the Act of 2004. Section 26 provides:-

“26.—(1) 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.
(2) The court in a personal injuries action shall, if satisfied that a person has sworn an affidavit under section 14 that—


(a) is false or misleading in any material respect, and
(b) that he or she knew to be false or misleading when swearing the affidavit,


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.
(3) For the purposes of this section, an act is done dishonestly by a person if he or she does the act with the intention of misleading the court.

(4) This section applies to personal injuries actions—

(a) brought on or after the commencement of this section, and
(b) pending on the date of such commencement.”

Onus of Proof
21. It is for a plaintiff in a civil action to prove their claim. Thus the respondent had the onus of proving her claim on the assessment of damages before the High Court. Such an onus is on the balance of probabilities.

22. However, in this case the appellant raised s. 26 of the Act of 2004. In such a circumstance the appellant carries the onus of proof, which also is on the balance of probabilities. Thus I would uphold the findings of the learned High Court judge as to the standard of onus of proof.

Decision

23. There were essentially two issues raised in this appeal by the appellant, the first was a claim under s. 26(1) of the Act of 2004, and the second was a claim under s. 26(2) of the Act of 2004. The second claim was the stronger of the submissions.

24. This is a relatively simple case of an elderly lady who suffered injuries as a result of a bus accident. Liability was not in issue.

25. The learned High Court judge, who heard all the evidence and who could see the demeanour of the appellant held her to be an honest woman. This Court is bound by the well established principles as set out in Hay v. O’Grady [1992] 1 I.R. 210 as to the findings of fact of the trial judge. A claim under s. 26(1) of the Act of 2004 requires that several elements be proved, including that if a plaintiff gives or adduces, or dishonestly causes to be given or adduced, evidence that is false or misleading in a material way and she knows it to be false or misleading, the Court shall dismiss the plaintiff’s action unless, for stated reasons, the dismissal of the action would result in injustice being done. In this case, there are no grounds for an appeal to succeed in relation to the appellant’s personal evidence, the learned trial judge having held her to be an honest witness.

26. There is another element in s. 26(1) – a situation where a plaintiff dishonestly causes someone else to give or adduce evidence that is false or misleading and he or she knows it to be false or misleading. This does not arise in this appeal. The report of the actuary and the nurse were never put into evidence. Neither gave oral evidence. Further, the claim for care into the future was withdrawn at the conclusion of the respondent’s case in the High Court. Thus the appellant’s case, resting on the issue of care into the future, has no basis in the claim under s. 26(1). This was considered carefully and ruled upon by the learned trial judge, as seen in his judgment, set out previously. Consequently I would dismiss this ground of appeal.

27. Indeed, as analysis of the evidence of the respondent shows that her evidence related to her care by her daughters and son.

28. The submission pressed strongly by counsel for the appellant was a claim under s. 26(2), and it was submitted that the learned High Court judge had erred.

29. The claim made by the appellant was grounded mainly on the second verifying affidavit of the respondent sworn on the 17th February, 2006. Reference was made especially to paragraphs 2 and 3, being:-

“(2) I say that the [appellant’s] said solicitors have copies of the foregoing documents. I say that the assertions, allegations and information contained in the said documents which are within my own knowledge are true. I honestly believe that the assertions, allegations and information contained in the said documents which are not within my own knowledge are true.
(3) Insofar as the figures set out in the said report of Ms. Noreen Roche are concerned I say that the said figures are furnished to the [appellant] for the purpose of indicating to the Court a method of calculating the monetary loss suffered by me as a result of the loss of independence which I have suffered since this accident. I say that since this accident I require assistance from persons referred to in the said report. I say that were it not for the said accident I would not have required the said assistance.”

30. The evidence of the respondent was that she received 12 hours assistance/care from her daughters and son each week. Also, that her neighbours accompanied her on the bus.
31. The hours were added up and then an actuarial report was drawn up. However, neither was entered into evidence. Neither report was received in evidence nor was either author called to give evidence. This situation, taken together with the evidence of the respondent, takes the matter out of s. 26(2) of the Act of 2004.

32. The High Court judge considered the whole of the evidence before him, as he was entitled to do. He specifically addressed the issue of the s. 26(2) claim stating:-

“The Court is also of the view that in relation to section 26 subsection 2, that it has not been established that the section 14 affidavit was false or misleading in a material respect, or that it has been shown that the [respondent] knew it to be false or misleading. The Court must recognise in assessing the factual position, not only its view as to the [respondent’s] truthfulness, but also that the accident herein unquestionably had an effect on the [respondent’s] confidence and perceived independence. As indicated above that independence was likely to be reducing even without the accident, and the [respondent’s] linking of it to the accident is both understandable and in no way to be taken as a deliberate intention to tell a non-truth or mislead. The [respondent] showed herself to be highly determined to maintain her independence, and it is both understandable and human that she might wish to attribute some of that loss of independence to the accident rather than the passage of time.”
33. The High Court held that the provisions of s. 26(2) do not apply, stating:-
“I am therefore of the view that the [appellant] has failed to establish that section 26 applies to the facts of this case. It should also be noted that the main area upon which the [appellant] relied to support the section 26 finding, and in their own words, “essential contest” was whether the [respondent] is entitled to a carer as a consequence of her injuries. The [respondent’s] need for a carer, and the reference to it in her second affidavit of verification, was stated as being a case that ‘were it not for the accident I would not have required such assistance’. I have already indicated that such a view was not a deliberate false or misleading statement, but rather a genuine statement of the [respondent’s] subjective belief. The Court therefore determines that the provisions of section 26(2) do not apply to this action.”
34. I am satisfied that the learned trial judge approached this case correctly. He considered the overall evidence and found that the appellant was an honest woman and did not knowingly mislead the Court. “Knowingly” is a matter to which the test is subjective. On the evidence before the learned High Court judge he was entitled to hold, as he did, that the respondent did not knowingly mislead the Court, or swear an affidavit that is false or misleading in any material respect.
35. Consequently, for the reasons given, I would dismiss the appeal and affirm the order of the High Court.

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Boy,6, with cerebral palsy wins €8.5 million in damages from HSE

Posted 29/11/2013

Boy, 6, with cerebral palsy wins €8.5m in damages from HSE

A six-year-old boy from Waterford who suffered catastrophic injuries at birth is to receive €8.5m damages.

Dylan Gaffney Hayes, who has cerebral palsy, sued the HSE through his mother Jean Gaffney.

At today’s High Court settlement, Ms Justice Mary Irvine noted it was the second case this week in which the HSE has held off for several years on admitting liability.

She said it was "highly regrettable" that the HSE for whatever reason was not in a position to admit responsibility for Dylan's injuries until last year when he was five years old.

She said such a course often suspends access to treatments that a child so badly needs.

During the proceedings, the court heard Jean Gaffney gave birth to Dylan at Waterford Regional Hospital in July 2007. When labour stalled she was given the drug Oxytocin. Her womb ruptured and Dylan suffered brain damage.

Dylan's father Thomas Hayes is angry the case took so long to settle.

He compared the approach to a game of poker "in which the State Claims Agency seek to take advantage of every slip up to use it as a bargaining tool to pay Dylan a lesser sum".

He told reporters that they have not received an apology from the HSE.

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UK - medical experts drafted in to identify fraudulent claims

Posted 25/11/2013

UK Government proposals have called for medical experts to be drafted in to identify fraudulent claims and ensure that those with legitimate injuries are taken seriously.

Another big reason for this is that the insurance industry has seen that payouts involving whiplash cost them £2billion per year, and because of this £90 has been added to an average car insurance premium.

A spokesperson for the Government said to the Daily Mail that whiplash is a “notoriously difficult injury to diagnose” and said that specialists in the condition will be able to weed out those who are making claims under false pretences and benefit those with genuine injuries.

The only concern is that a lot of damage has already been done by bad press surrounding the industry and that because of this even those with legitimate injuries and need to claim due to loss of earnings, car repairs etc will be put off by the negative stigma attached to filing a claim.

The Government has been quick to dispel this, by saying ‘No one wants to stop people filing genuine injury claims’. A cabinet summit approved the proposals, and by the end of March the detailed plans will be presented.

The proposals were approved by a Cabinet summit chaired by the Prime Minister last week, with detailed plans set to be presented to Transport Secretary Justine Greening by the end of March.

As we stated in the previous story, we were disheartened by the number of fake claims meaning that those with legitimate injuries were not taken seriously so this is certainly a step in the right direction if it is implemented correctly.

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€4.75m lump sum approved by High Court

Posted 8/11/2013

The latest lump sum settlement approved yesterday by the High Court for Shane Kenny comes two years after he accepted €1m in partial payment and was awarded a further €665,000 for his future loss of earnings.

Shane Kenny, aged 9, of Ballylouane, Ballyduff, Co Waterford, the High Court heard has developmental delay and motor dysfunction arising from the circumstances of his birth at Erinville on Nov 2, 2004. Through his mother Catherine, a nurse who gave up her job to look after him, he sued the HSE for negligence.

The HSE previously admitted liability and apologised for the fact it was negligent in the events leading up to the child’s birth and at his birth.

Approving the €4.75m yesterday, Ms Justice Mary Irvine was told the total in relation to Shane’s case came to €6.4m.

Liam Reidy SC said while Shane is independently mobile his left leg is stunted in growth and he has poor co-ordination.

Shane, counsel said, goes to mainstream school but due to his brain injury his intellectual development is behind his peers and will never be able to work except under sheltered conditions.

The court previously heard that at the time of birth, there was a failure to act upon a CTG trace which showed the foetal heart rate was abnormal, and the decision to deliver the baby by Neville Barnes forceps was negligent. The forceps delivery resulted in Shane suffering a significant partial hypoxic insult.

The judge said the €4.75m was a very significant sum in the context of Shane’s disability. She said she was more than happy to approve the lump sum and knew how stressful it was for parents and children to be in the “litigation loop”.

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Replies to Particulars - Restrictions

Posted 9/7/2013

'too much of the lion and not enough of the fox'

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Road Traffic Accident Compensation for young man who sued South Dublin County Council

Posted 21/5/2013

ROAD TRAFFIC ACCIDENT COMPENSATION: €826,818.86 FOR YOUNG MAN - A young man, seventeen, has successfully sued South Dublin County Council for injuries he sustained in an accident which occurred when he was thirteen years of age arising out of a RTA


A young man, seventeen, has successfully sued South Dublin County Council for injuries he sustained in an accident which occurred when he was thirteen years of age arising out of a road traffic accident on the 8th of November 2008.

The plaintiff, Brandon Burgess who took the case through his mother, Linda Burgess, sued South Dublin County Council and the driver of the vehicle who hit him, James Mulholland. Young Mr Burgess was crossing the road at temporary traffic lights at the Tallaght Bypass at Killinarden Way when the accident occurred.
It was alleged that South Dublin County Council had been negligent because they had positioned traffic lights at the dangerous location and further, that a van driven by a South Dublin County Council employee had pulled up at the temporary traffic lights in such a position as to block the view of the light by Mr Burgess.
When the young man was halfway across the road the lights turned from red to green in favour of oncoming traffic. He hastened his step to try and get across the road. He was hit by a car travelling in the third of four lanes of traffic. The car, driven by Mr Mulholland, had its view blocked in turn also by the South Dublin County Council van.
In giving its judgment the Court completely exonerated Mr Mulholland as he had no chance or opportunity to avoid colliding with Mr Burgess.
South Dublin County Council tried to allege that the accident was the plaintiff’s own fault or at worst he was partially liable for his own injuries. The Court rejected this completely and stated that the plaintiff had been left with an impossible situation whereby he was halfway across the road and was stuck between a “rock and a hard place” as to whether he continue on to cross the road or turn back and one was equally as dangerous as the other.

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Whiplash

Posted 21/5/2013

Treating whiplash Whiplash is usually a self-limiting condition, which means that it will eventually get better following some basic or minimal treatment. Short-lived whiplash is sometimes referred to as an acute whiplash injury.


Treating whiplash

 

Whiplash is usually a self-limiting condition, which means that it will eventually get better following some basic or minimal treatment. Short-lived whiplash is sometimes referred to as an acute whiplash injury.

Other cases of whiplash can cause a wide range of troublesome symptoms that are often severe and last for a considerable length of time. Whiplash that lasts for six months or more is sometimes known as chronic whiplash or late whiplash syndrome.

Treatments for both are outlined below.

Acute whiplash

Research has shown that if you have severe pain at the time of your injury, and you later experience a variety of symptoms, your recovery time is likely to be longer and your chances of developing chronic whiplash are greater.

There is no clear-cut evidence about the best way to treat an acute whiplash injury because most of the studies that have been carried out to date have been of poor quality.

Mobilisation

However, most healthcare professionals agree that active interventions, such as neck exercises and keeping the neck mobile, are better than inactive interventions, such as resting the neck and keeping it still by using a neck brace or collar.

Even though you may experience a considerable amount of pain, keeping your neck mobile from an early stage will help to improve its functionality and speed up your recovery.

Resting your neck and keeping it still is likely to prolong your symptoms and delay your recovery. Any pain that you experience when moving your neck is normal and will not cause further damage.

Medication

Analgesics (painkillers), such as paracetamol, can be used to help relieve the pain of an acute whiplash injury.

Paracetamol is usually recommended as the first painkiller to treat mild to moderate pain. For neck pain, regular use of paracetamol is thought to be more effective than only using it when the pain is at its worst. If your pain is severe, your GP will be able to prescribe a stronger painkiller, such as codeine. Codeine can also be used in combination with paracetamol to provide increased pain relief.

Ibuprofen, a non-steroidal anti-inflammatory drug (NSAID), can ease pain and reduce inflammation.

Always follow the manufacturer's recommended dosage instructions when taking painkillers and NSAIDs. Do not take ibuprofen if you have a peptic ulcer (an open sore on the inside lining of the stomach) or if you have had one in the past. Also avoid taking it if you have severe heart failure (where the heart does not pump blood around your body effectively),renal (kidney) failure or severe liver disease.

There are also a number of other health conditions where ibuprofen should only be used with caution. See the Health A-Z topic about Ibuprofen - Considerations for more information and advice.

Physiotherapy

If your whiplash symptoms continue to give you problems for several weeks following your injury, your GP may recommend trying physiotherapy.

Physiotherapy uses a variety of physical methods, such as massage and manipulation, to promote healing and wellbeing. It can often help to restore a person's range of movement following an injury such as whiplash.

As well as helping to relieve pain and stiffness in your neck using massage and manipulation, your physiotherapist will also be able to advise you about neck exercises that you can do at home.

See Health A-Z: Physiotherapy to find out more.


Chronic whiplash

Whiplash that persists for six months or longer is known as chronic whiplash. As with acute whiplash, there is little in the way of concrete evidence to suggest what the best approach for treating chronic whiplash is, and which treatments are most effective.

However, similarly to acute whiplash, if you have chronic whiplash it is recommended that you keep your neck mobile and continue with your normal daily activities.

For chronic whiplash, a treatment plan should be based on your specific set of symptoms and should focus on dealing with the cause of your pain.


Medication


As with acute whiplash, a number of different painkillers may be recommended to provide pain relief. The specific type of painkiller recommended for you will depend on the severity of your pain and how long it usually lasts.

In some cases, paracetamol or ibuprofen taken as and when required will often provide sufficient pain relief. If not, you may need to take them more regularly.

If your pain is more severe or prolonged, your GP will be able to prescribe a stronger painkiller, such as codeine, which can be used on its own or in combination with paracetamol or ibuprofen. When using paracetamol or ibuprofen, always follow the dosage instructions provided by the manufacturer.

Anxiety and depression

Whiplash that lasts for several months or longer can sometimes cause anxiety and depression. If the injury was the result of a motor vehicle accident, sorting out the damage to your vehicle and dealing with compensation claims can often be stressful and time-consuming.

If your symptoms are particularly painful or chronic (long-lasting), you may begin to feel depressed. It is important to try to remain positive and focus on your treatment objectives. However, if you begin to feel depressed, visit your GP who will be able to recommend treatment.

Your GP may refer you to a specialist pain clinic for further assessment and treatment, or they may recommend that you see a psychologist for counselling. Alternatively, they may refer you for a short course of cognitive behavioural therapy (CBT), where a therapist will help you to manage your problems by changing how you think and behave.

See the Health A-Z topics about Depression and Anxiety for further information about these two health conditions.


Self-care


As well as keeping your neck mobile and using medication to reduce pain, the self-care measures listed below may also help you to manage the pain and stiffness in your neck and prevent them from getting worse.

Good posture. You should maintain a good, upright posture by keeping your back straight while you are sitting, standing and walking. If you spend a considerable amount of time using a computer, you should ensure that your chair and computer screen are correctly adjusted.
Supportive pillow. Some people find that a firm, supportive pillow helps when sleeping. You should avoid using more than one pillow.
Yoga. Doing controlled exercises and stretches will help you to improve your strength and posture. However, there is no evidence to suggest that they help to reduce neck pain.

 


Anti-inflammatory

Anti-inflammatory medicines reduce swelling and inflammation.

Ibuprofen
Ibuprofen is a medicine that is used to ease mild to moderate pain, ease inflammation and swelling and control a fever.

 

Pain

Pain is an unpleasant physical or emotional feeling that your body produces as a warning sign that it has been damaged.
Paracetamol
Paracetamol is a medicine that is used to ease mild to moderate pain and control a fever.

 

Whiplash is the most common injury arising from a car crash or other road traffic accident. This form of injury accounts for approximately 65% of all injuries arising from road traffic accidents and up to 75% of all claims to motor insurers.


Whiplash is the most common injury arising from a car crash or other road traffic accident. This form of injury accounts for approximately 65% of all injuries arising from road traffic accidents and up to 75% of all claims to motor insurers. Research suggests that whiplash injuries are also some of the most likely to have long-term consequences. European studies have concluded that up to approximately 20% of car occupants who report whiplash injuries go on to suffer life-long problems, with women more likely than men to experience long-term damage.

Whiplash is most often associated with rear-end or side impact collisions, though it can also arise from other kinds of accidents. Drivers are more likely than passengers to suffer from this form of injury. The initial impact is usually followed by a few days of increasing stiffness in the injured person’s neck. It is important to seek medical advice if you believe you have sustained a whiplash injury in a car crash or other road traffic accident.

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Asbestos Exposure

Posted 21/5/2013

Asbestos Exposure and Cancer Risk - Exposure to asbestos may increase the risk of asbestosis, other nonmalignant lung and pleural disorders, lung cancer, mesothelioma, and other cancers.

Asbestos is the name given to a group of minerals that occur naturally in the environment as bundles of fibers.


Exposure to asbestos may increase the risk of asbestosis, other nonmalignant lung and pleural disorders, lung cancer, mesothelioma, and other cancers.
Smokers who are also exposed to asbestos have a greatly increased risk of lung cancer.
Individuals who have been exposed (or suspect they have been exposed) to asbestos on the job, through the environment, or at home through a family contact should inform their physician and report any symptoms.
Government agencies can provide additional information on asbestos exposure.
What is asbestos?

 

Asbestos is the name given to a group of minerals that occur naturally in the environment as bundles of fibers that can be separated into thin, durable threads. These fibers are resistant to heat, fire, and chemicals and do not conduct electricity. For these reasons, asbestos has been used widely in many industries.

Chemically, asbestos minerals are silicate compounds, meaning they contain atoms of silicon and oxygen in their molecular structure.

Asbestos minerals are divided into two major groups: Serpentine asbestos and amphibole asbestos. Serpentine asbestos includes the mineral chrysotile, which has long, curly fibers that can be woven. Chrysotile asbestos is the form that has been used most widely in commercial applications. Amphibole asbestos includes the minerals actinolite, tremolite, anthophyllite, crocidolite, and amosite. Amphibole asbestos has straight, needle-like fibers that are more brittle than those of serpentine asbestos and are more limited in their ability to be fabricated (1, 2).

 

How is asbestos used?

 

Asbestos has been mined and used commercially in North America since the late 1800s. Its use increased greatly during World War II (3, 4). Since then, asbestos has been used in many industries. For example, the building and construction industries have used it for strengthening cement and plastics as well as for insulation, roofing, fireproofing, and sound absorption. The shipbuilding industry has used asbestos to insulate boilers, steam pipes, and hot water pipes. The automotive industry uses asbestos in vehicle brake shoes and clutch pads. Asbestos has also been used in ceiling and floor tiles; paints, coatings, and adhesives; and plastics. In addition, asbestos has been found in vermiculite-containing garden products and some talc-containing crayons.

In the late 1970s, the U.S. Consumer Product Safety Commission (CPSC) banned the use of asbestos in wallboard patching compounds and gas fireplaces because the asbestos fibers in these products could be released into the environment during use. In addition, manufacturers of electric hairdryers voluntarily stopped using asbestos in their products in 1979. In 1989, the U.S. Environmental Protection Agency (EPA) banned all new uses of asbestos; however, uses developed before 1989 are still allowed. The EPA also established regulations that require school systems to inspect buildings for the presence of damaged asbestos and to eliminate or reduce asbestos exposure to occupants by removing the asbestos or encasing it (2).

In June 2000, the CPSC concluded that the risk of children’s exposure to asbestos fibers in crayons was extremely low (1). However, U.S. manufacturers of these crayons agreed to eliminate talc from their products.

In August 2000, the EPA conducted a series of tests to evaluate the risk for consumers of adverse health effects associated with exposure to asbestos-contaminated vermiculite. The EPA concluded that exposure to asbestos from some vermiculite products poses only a minimal health risk. The EPA recommended that consumers reduce the low risk associated with the occasional use of vermiculite during gardening activities by limiting the amount of dust produced during vermiculite use. Specifically, the EPA suggested that consumers use vermiculite outdoors or in a well-ventilated area; keep vermiculite damp while using it; avoid bringing dust from vermiculite into the home on clothing; and use premixed potting soil, which is less likely to generate dust (2).

The regulations described above and other actions, coupled with widespread public concern about the health hazards of asbestos, have resulted in a significant annual decline in the U.S. use of asbestos. Domestic consumption of asbestos amounted to about 803,000 metric tons in 1973, but it had dropped to about 2,400 metric tons by 2005 (3, 5).

 

What are the health hazards of exposure to asbestos?

 

People may be exposed to asbestos in their workplace, their communities, or their homes. If products containing asbestos are disturbed, tiny asbestos fibers are released into the air. When asbestos fibers are breathed in, they may get trapped in the lungs and remain there for a long time. Over time, these fibers can accumulate and cause scarring and inflammation, which can affect breathing and lead to serious health problems (6).

Asbestos has been classified as a known human carcinogen (a substance that causes cancer) by the U.S. Department of Health and Human Services, the EPA, and the International Agency for Research on Cancer (2, 3, 7, 8). Studies have shown that exposure to asbestos may increase the risk of lung cancer and mesothelioma (a relatively rare cancer of the thin membranes that line the chest and abdomen). Although rare, mesothelioma is the most common form of cancer associated with asbestos exposure. In addition to lung cancer and mesothelioma, some studies have suggested an association between asbestos exposure and gastrointestinal and colorectalcancers, as well as an elevated risk for cancers of the throat, kidney, esophagus, andgallbladder (3, 4). However, the evidence is inconclusive.

Asbestos exposure may also increase the risk of asbestosis (an inflammatory condition affecting the lungs that can cause shortness of breath, coughing, and permanent lung damage) and other nonmalignant lung and pleural disorders, including pleural plaques (changes in the membranes surrounding the lung), pleural thickening, and benign pleural effusions (abnormal collections offluid between the thin layers of tissue lining the lungs and the wall of the chest cavity). Although pleural plaques are not precursors to lung cancer, evidence suggests that people with pleural disease caused by exposure to asbestos may be at increased risk for lung cancer (2, 9).

 

Who is at risk for an asbestos-related disease?

 

Everyone is exposed to asbestos at some time during their life. Low levels of asbestos are present in the air, water, and soil. However, most people do not become ill from their exposure. People who become ill from asbestos are usually those who are exposed to it on a regular basis, most often in a job where they work directly with the material or through substantial environmental contact.

Since the early 1940s, millions of American workers have been exposed to asbestos. Health hazards from asbestos fibers have been recognized in workers exposed in the shipbuilding trades, asbestos mining and milling, manufacturing of asbestos textiles and other asbestos products, insulation work in the construction and building trades, and a variety of other trades. Demolition workers, drywall removers, asbestos removal workers, firefighters, and automobile workers also may be exposed to asbestos fibers. Studies evaluating the cancer risk experienced by automobile mechanics exposed to asbestos through brake repair are limited, but the overall evidence suggests there is no safe level of asbestos exposure (3, 8). As a result of Government regulations and improved work practices, today’s workers (those without previous exposure) are likely to face smaller risks than did those exposed in the past.

Individuals involved in the rescue, recovery, and cleanup at the site of the September 11, 2001, attacks on the World Trade Center (WTC) in New York City are another group at risk of developing an asbestos-related disease. Because asbestos was used in the construction of the North Tower of the WTC, when the building was attacked, hundreds of tons of asbestos were released into the atmosphere. Those at greatest risk include firefighters, police officers, paramedics, construction workers, and volunteers who worked in the rubble at Ground Zero. Others at risk include residents in close proximity to the WTC towers and those who attended schools nearby. These individuals will need to be followed to determine the long-term health consequences of their exposure (10).

One study found that nearly 70 percent of WTC rescue and recovery workers suffered new or worsened respiratory symptoms while performing work at the WTC site. The study describes the results of the WTC Worker and Volunteer Medical Screening Program, which was established to identify and characterize possible WTC-related health effects in responders. The study found that about 28 percent of those tested had abnormal lung function tests, and 61 percent of those without previous health problems developed respiratory symptoms (11). However, it is important to note that these symptoms may be related to exposure to debris components other than asbestos.

Although it is clear that the health risks from asbestos exposure increase with heavier exposure and longer exposure time, investigators have found asbestos-related diseases in individuals with only brief exposures. Generally, those who develop asbestos-related diseases show no signs of illness for a long time after their first exposure. It can take from 10 to 40 years or more for symptoms of an asbestos-related condition to appear (2).

There is some evidence that family members of workers heavily exposed to asbestos face an increased risk of developing mesothelioma (6). This risk is thought to result from exposure to asbestos fibers brought into the home on the shoes, clothing, skin, and hair of workers. To decrease these exposures, Federal law regulates workplace practices to limit the possibility of asbestos being brought home in this way. Some employees may be required to shower and change their clothes before they leave work, store their street clothes in a separate area of the workplace, or wash their work clothes at home separately from other clothes (2).

Cases of mesothelioma have also been seen in individuals without occupational asbestos exposure who live close to asbestos mines (6).

 

What factors affect the risk of developing an asbestos-related disease?

 

Several factors can help to determine how asbestos exposure affects an individual, including (2,6):

Dose (how much asbestos an individual was exposed to).
Duration (how long an individual was exposed).
Size, shape, and chemical makeup of the asbestos fibers.
Source of the exposure.
Individual risk factors, such as smoking and pre-existing lung disease.
Although all forms of asbestos are considered hazardous, different types of asbestos fibers may be associated with different health risks. For example, the results of several studies suggest that amphibole forms of asbestos may be more harmful than chrysotile, particularly for mesothelioma risk, because they tend to stay in the lungs for a longer period of time (1, 2).

 

How does smoking affect risk?

 

Many studies have shown that the combination of smoking and asbestos exposure is particularly hazardous. Smokers who are also exposed to asbestos have a risk of developing lung cancer that is greater than the individual risks from asbestos and smoking added together (3, 6). There is evidence that quitting smoking will reduce the risk of lung cancer among asbestos-exposed workers (4). Smoking combined with asbestos exposure does not appear to increase the risk of mesothelioma (9). However, people who were exposed to asbestos on the job at any time during their life or who suspect they may have been exposed should not smoke.

 

How are asbestos-related diseases detected?

 

Individuals who have been exposed (or suspect they have been exposed) to asbestos fibers on the job, through the environment, or at home via a family contact should inform their doctor about their exposure history and whether or not they experience any symptoms. The symptoms of asbestos-related diseases may not become apparent for many decades after the exposure. It is particularly important to check with a doctor if any of the following symptoms develop (6):

Shortness of breath, wheezing, or hoarseness.
A persistent cough that gets worse over time.
Blood in the sputum (fluid) coughed up from the lungs.
Pain or tightening in the chest.
Difficulty swallowing.
Swelling of the neck or face.
Loss of appetite.
Weight loss.
Fatigue or anemia.
A thorough physical examination, including a chest x-ray and lung function tests, may be recommended. The chest x-ray is currently the most common tool used to detect asbestos-related diseases. However, it is important to note that chest x-rays cannot detect asbestos fibers in the lungs, but they can help identify any early signs of lung disease resulting from asbestos exposure (2).

Studies have shown that computed tomography (CT) (a series of detailed pictures of areas inside the body taken from different angles; the pictures are created by a computer linked to an x-ray machine) may be more effective than conventional chest x-rays at detecting asbestos-related lung abnormalities in individuals who have been exposed to asbestos (12).

A lung biopsy, which detects microscopic asbestos fibers in pieces of lung tissue removed bysurgery, is the most reliable test to confirm the presence of asbestos-related abnormalities. Abronchoscopy is a less invasive test than a biopsy and detects asbestos fibers in material that is rinsed out of the lungs. It is important to note that these tests cannot determine how much asbestos an individual may have been exposed to or whether disease will develop (12). Asbestos fibers can also be detected in urine, mucus, or feces, but these tests are not reliable for determining how much asbestos may be in an individual’s lungs (2).

Selected References

Agency for Toxic Substances and Disease Registry. What Is Asbestos? Retrieved April 10, 2009, from: http://www.atsdr.cdc.gov/asbestos/more_about_asbestos/what_is_asbestos.
Agency for Toxic Substances and Disease Registry. Toxicological Profile for Asbestos. September 2001. Retrieved April 10, 2009, from: http://www.atsdr.cdc.gov/toxprofiles/tp61.pdf.
National Toxicology Program. Asbestos. In: Report on Carcinogens. Eleventh Edition. U.S. Department of Health and Human Services, Public Health Service, National Toxicology Program, 2005. Retrieved April 10, 2009, from: http://ntp.niehs.nih.gov/ntp/roc/eleventh/profiles/s016asbe.pdf.
Ullrich RL. Etiology of cancer: Physical factors. In: DeVita VT Jr., Hellman S, Rosenberg SA, editors. Cancer: Principles and Practice of Oncology. Vol. 1 and 2. 7th ed. Philadelphia: Lippincott Williams and Wilkins, 2004.
U.S. Geological Survey. Mineral Commodity Summaries 2006: Asbestos. Retrieved April 10, 2009, from: http://minerals.usgs.gov/minerals/pubs/mcs/2006/mcs2006.pdf.
Agency for Toxic Substances and Disease Registry. Asbestos: Health Effects. Retrieved April 10, 2009, from: http://www.atsdr.cdc.gov/asbestos/asbestos/health_effects/index.html.
U.S. Environmental Protection Agency. Health Effects Assessment for Asbestos. September 1984. EPA/540/1-86/049 (NTIS PB86134608). Retrieved April 10, 2009, from: http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=40602.
International Agency for Research on Cancer. Asbestos. IARC Monographs on the Evaluation of Carcinogenic Risks to Humans, vol. 14. Lyon, France. Retrieved April 10, 2009, from: http://monographs.iarc.fr/ENG/Monographs/vol14/volume14.pdf .
O’Reilly KMA, McLaughlin AM, Beckett WS, et al. Asbestos-related lung disease. American Family Physician 2007; 75(5):683–688. [PubMed Abstract]
Landrigan PJ, Lioy PJ, Thurston G, et al. Health and environmental consequences of the World Trade Center disaster. Environmental Health Perspectives 2004; 112(6):731–739. [PubMed Abstract]
Herbert R, Moline J, Skloot G, et al. The World Trade Center disaster and the health of workers: five-year assessment of a unique medical screening program. Environmental Health Perspectives 2006; 114(12):1853–1858. [PubMed Abstract]
Agency for Toxic Substances and Disease Registry. Asbestos: Working with Patients: Diagnosis. Retrieved April 10, 2009, from: http://www.atsdr.cdc.gov/asbestos/medical_community/working_with_patients.
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Asbestos Asbestos is a natural mineral made up of many small fibres. There are three main types: Blue asbestos - crocidolite Brown asbestos - amosite White asbestos - chrysotile What are the risks?

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Denis O'Brien awarded €150,000 by a jury at the High Court after he won

Posted 21/5/2013

2/16/2013 8:44:09 PM

Denis O’Brien has been awarded €150,000 by a jury at the High Court after he won his defamation claim against Associated Newspapers, publishers of the Irish Daily Mail.



The action arose out of an article written three years ago that criticised his appearance in RTÉ news reports on the relief effort in Haiti after the earthquake there.

Journalist Paul Drury said the Digicel boss was using the publicity to deflect attention from the Moriarty Tribunal.
After three hours of deliberation the jury found Mr O’Brien had been defamed by the article.
While the jury agreed the piece was based on the honest opinion of the writer, they decided it was not an opinion based on fact and was not in the public interest.
It was the first major media defamation case to come before a jury at the High Court since the Defamation Act 2009 came into force.
It is the first time a jury considered the new defence of honest opinion.
Afterwards Mr O’Brien said he was delighted with the result. He said freedom of expression was part of our democracy but so was a person's right to their good name.

Solicitor for the Irish Daily Mail Michael Keely said they were considering an appeal and that it was a sad day for freedom of expression.

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Common Back Injury Causes

Posted 16/4/2013

Common Back Injury Causes

Twisting or pulling the torso suddenly and with ample force can result in a back injury. Improper or repetitive lifting, which often occurs in the workplace, can also result in back injuries. Sports injuries can also cause back pain or injury.

Traumatic events—such as car accidents, work-related incidents, falls, acts ofviolence, and more—are also primary culprits that cause back injuries. In many cases, a traumatic injury is the “straw that breaks the camel’s back” so-to-speak, after repetitive stress has weakened the back.

When back injuries are the result of an accident caused by another party’s negligence or wrongdoing, the injured person may be able to seek back injury compensation for their losses and suffering with the help of a qualified and experienced solicitor

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