RESIDENTIAL CONVEYANCING SPECIAL €1,099 + VAT AND OUTLAYS*

For many of us, buying a property is the single biggest financial decision we ever undertake.

Property transactions are inherently complex, thus choosing the right solicitor can help prevent an exciting experience from becoming a stressful one. Whether you are a first time buyer or a seasoned investor, at Brophy Solicitors, our experienced conveyancing team provide a fast, efficient and cost effective service. We are used to getting people in and out of their homes quickly and with the least fuss.

If you choose Brophy Solicitors for your conveyancing, you will receive:

· Clear, practical and friendly advice on all aspects of the process

· An express service for transactions with tight timescales

· 100% transparent costs with no hidden surprises

· The benefit of our established contacts with local estate agents and other solicitors across Ireland

For more information on how Brophy Solicitors could help with your next move, call us on (01) 679 7930 or email catriona@brophysolicitors.ie

Brophy Solicitors

*Subject to terms and conditions

HOW TO ENFORCE A DEBT COLLECTION JUDGMENT

Following on from last week’s blog post on our debt collection service, this post sets out the many options that are available to creditors to assist in recovery of the Judgment debt.

The options available to you are as follows:

1. Execution by the Sheriff

A Judgment Order can be lodged with the local Sheriff. The Sheriff will call to the debtor’s address and attempt to seize any goods the debtor may have, in satisfaction of the debt owed. The Sheriff does not have to give the debtor notice of intention to seize their goods or property and will not seize essential household items or the tools of trade. There can be delays in this process and often the Sheriff can decide that the debtor has no goods worth seizing and selling. However, where it is not economically viable to seize goods, the Sheriff will often enter into instalment arrangements with debtors.

2. Registration of Judgment

To bring a judgment to the attention of the public at large, it must be published. When a judgment is registered in the Central Office of the High Court, it is published in trade gazettes and various commercial databases. These gazettes are widely read by credit controllers, bank managers etc. This will affect a debtor’s credit rating which can have serious consequences.

3. Examination, Instalment and Committal Orders

An Examination Order follows service of summons requiring a debtor to complete a Statement of Means and to attend Court to be cross examined regarding his means. If the debtor fails to attend, or fails to submit a statement of means or fails to prove their inability to pay, the Judge will be obliged to make an Instalment Order. This order compels a debtor to repay by weekly or monthly instalments the amount of the debt and legal costs which are due. If the debtor fails to comply with the Order, then a Committal Order can be sought from the Court, which directs that the debtor be arrested and committed to prison for contempt of Court on the basis that they have failed to comply with the terms of the Instalment Order.

4. Garnishee Orders

Where a third party holds or owes money for the Judgment debtor, you can apply Ex Parte (without notice) to the Court for an Order directing that any monies be paid by the third party directly to the creditor. Timing is important to ensure that the third parties such as the Bank, National Lottery, Local Authority etc. are advised of the Garnishee Order before the monies are paid to the debtor. This procedure is dependent on you having good intelligence on any monies being paid to the debtor.

5. Judgment Mortgage

We can carry out property searches to ascertain whether the debtor has any property or land, owned or part owned, on which a judgment mortgage can be registered. Once registered, it may prevent the property from being sold and you have the right to have the property sold off and the proceeds used to pay the debt.

6. Injunctions

An injunction is an order of the Court directing a party to do or refrain from doing something. Injunctions can vary in duration and be either mandatory or prohibitory. For example, a Mareva Injunction can be sought to freeze the debtor’s assets to prevent the debtor from attempting to dissipate or dispose of the assets up to the value of the debt pending trial of the action or pending payment of the judgment debt.

7. Winding Up

Where the judgment has been obtained against a limited company, a Notice can be issued threatening to wind up the company. If the debt is not paid within 21 days, a petition may be presented to the High Court to have the company wound up.

8. Bankruptcy

This applies only when the debt is very large and the debtor is an individual. You can apply to the High Court to have a debtor adjudicated as bankrupt. The bankrupt’s assets are realised by a Court Officer and the proceeds distributed amongst the creditors.

To find out more about recovery of your debts, please contact Brophy Solicitors on (01) 679 7930 or by email.

Rebecca Townsend
Brophy Solicitors

WHY CHASE DEBTS WHEN WE CAN DO IT FOR YOU?

Debt recovery can be a time consuming and frustrating process. If you have outstanding invoices, it is crucial that you take immediate action as early intervention means earlier payment. If you delay in taking action you could potentially be diminishing your chances for debt recovery. 

Brophy Solicitors can advise and support on recovering bad debts and over-drawn accounts from debtors. We have an experienced debt collection team, who are aggressive, resourceful and persistent. Our highly trained team provides a full service and can recover debts speedily and cost effectively.

Steps to our Debt Collection Service:

1. Urgent Demand Letter 
We will issue a letter before action to the debtor requiring payment of the outstanding debt. Our letter is short, sharp and serves many purposes:

· It will ensure the debtor is aware of the debt and is advised of any impeding action by the creditor.

· Our letter will give a timeframe of 7 days for the debtor to discharge the outstanding account.

· It warns that costs will be claimed if legal action is necessary and that interest will be payable at 8% per annum from the date of judgement.

This letter may be sufficient to prompt the debtor into payment.

2. Issue Legal Proceedings

Failure to respond or pay this debt within the 7 days will result in legal proceedings being issued and served on the debtor immediately.

Depending on the amount of debt involved, we will then issue proceedings in:

· District Court – Less than €15,000

· Circuit Court – €15,000 - €75,000

· High Court – More than €75,000

The purpose of this action is to encourage the debtor to pay. If the debtor pays at any stage during the process, legal action can be stopped. If the debtor fails to respond to the proceedings, we will make an application for Judgement against the debtor.

3. Enforcement of Judgement

When a judgement has been obtained and the debtor still refuses to pay, we will proceed to effectively and efficiently enforce the judgement through various options. These options will depend on the level and type of debt and include:

· Execution by the Sheriff;

· Registration in the Registry of Judgements and subsequent publication in Trade Gazettes;

· Judgement Mortgage;

· Examination, Instalment and Committal Orders;

· Garnishee Orders;

· Winding Up.

4. European Enforcement Order
This order can now be obtained when Judgement has been obtained from another EU state.

For further information please email me at catriona@brophysolicitors.ie or telephone (01) 679 7930 to make an appointment.

Catriona Sharkey
Brophy Solicitors

WORKPLACE RELATIONS BILL 2014

Landmark reform will see five State workplace relations bodies merged into two.

The recent publication of the Workplace Relations Bill 2014 is a very significant development in Irish Employment Law. It is anticipated that the Bill will be progressed through the Dail and Seanad in the autumn, with a view to enactment before the end of 2014. Once enacted, the Bill will replace the existing outdated system for resolving workplace disputes and industrial relations complaints in Ireland. There are currently five workplace relations bodies in existence, namely the Labour Relations Commission, the Rights Commissioner Service, the Equality Tribunal, the Employment Appeals Tribunal and the National Employment Rights Authority.

Under the new framework these bodies will be amalgamated and replaced with just two bodies:-

1. The Workplace Relations Commission, which will deal with all complaints in the first instance; and
2. The Labour Court, which will deal with appeals.

It is hoped that the two bodies will create a more efficient system for resolving employment disputes and will eliminate the need to take multiple claims to multiple workplace relations bodies; which is confusing and costly for both employees and employers.

For more information, please contact catriona@brophysolicitors.ie or for a full copy of the press release of the 8th of July 2014, please click here.

Catriona Sharkey
Brophy Solicitors

DISMISSAL DUE TO SICKNESS

I am frequently meeting clients who are unsure how to deal with employees whose attendance record is poor due to illness. Actually one of the commonest forms of dismissal is that relating to an employee’s attendance record.


Unlike most forms of dismissal, this area does not involve any fault on the part of the employee. In scrutinising such a dismissal a court or tribunal must balance the employee’s welfare against the demands of the business.

Absence dismissal related to illness cannot be dealt with solely under unfair dismissal legislation but must also take account of the Employment Equality Acts 1998-2004 which confers substantial protection on employees suffering from “disability”, a term that is widely defined and cover most if not all, forms of illness which might give, or do, give rise to substantial absence from work. 

Poor attendance records by employees can cause many problems for employers, particularly for smaller businesses. From an employer’s perspective, you need to ensure that you have complied with legislation and be in a position to demonstrate that you have followed “fair procedures”. An employee must be afforded reasonable opportunities to improve their attendance record but if it is clear that it is beyond their capacity to improve their attendance record, an employer may be entitled to inform that employee that they may have to consider letting him/her go.

If an employee’s illness absence is related to one continuing problem or underlying condition, in reviewing the position, an employer would normally be expected to obtain medical advice to find out:-


a) Whether or not the problem will persist; and 

b) What is the likelihood of the employee being able to attend on a more regular basis in the future and being able to perform her work for which he/she is employed to do?

An employer should consider what, if any, special treatment or facilities may be available by which the employee can become fully capable to carry out his or her work.


In the event a decision is taken to terminate that employee’s employment, then the onus of proof is on the employer to show that he has taken all reasonable steps and followed fair procedures. You will have to be able to show that:-

a) The incapacity was the reason for the dismissal;
b) The reason was substantial;
c) The employee received fair notice that the question of her dismissal for incapacity was being considered; and
d) The employee was afforded an opportunity of being heard.

Ultimately, the employer must be able to show that the employee’s dismissal was reasonable in all circumstances and necessary for good commercial reasons.


If you require further information or have any queries please contact Catriona[at]brophysolicitors.ie 

Catriona Sharkey

Brophy Solicitors

DEFAMATION CLAIM ARISING FROM ACCUSATION OF SHOPLIFTING

Maria Kearns was accused of shoplifting after being closely followed by a security guard while she shopped for birthday present for her six year old child. Upon purchasing two items from The Early Learning Centre, the security guard vocalized publicly that she had stolen other items while shopping. She also claims that he spat in her direction, and when she asked to speak with the manager, she was told it was all “a misunderstanding”.

Ms Kearns, feeling vulnerable and depressed from her experience, decided to speak with her solicitor a week later about her possible claim. Now 2 years later, she has been awarded £20,000 in damages for defamation against both Mothercare Ireland and UK, trading as Early Leaning Centre in Dublin’s Henry Street, and a security firm. Presiding Judge Mahon says that the deciding factors in this case were the words actually stated, that the manager refused to be a witness, and that the words were defamatory in a very public and busy street during January sales.

A person’s right to keep a good name is constitutionally protected. The difficulty in these cases arises when a person’s good name is being tarnished by another’s right to freedom of expression, which is also protected. 

If you feel you have a defamation claim, these are some factors to consider and discuss with your solicitor: 

Know for sure what exactly was said and make a note of it.

If it was in a publication, consider how widely it was distributed, if it was vocalized, who heard the false statements and how was your reputation damaged

Know what was said was in fact, false.

A defamation claim should be brought as soon as possible. The claim will be statute-barred one year from the date the defamatory words first were published and/or spoken. To read more about defamation claims and the statute of limitations, see our previous post .


Olivia York
Brophy Solicitors

CAN I BE FORCED TO RETIRE?

The answer: maybe.

As of the 1st of January 2014, the State pension age has increased from 65 to 66, with further increases due in the coming years to 67 and then 68. Despite this, there is no statutory mandatory retirement age in Ireland, except for certain Public Sector jobs.

It is not unlawful under the Employment Equality Acts 1998-2011, for an employer or an organisation to impose a compulsory retirement age. However, case law provides that compulsory retirement must be objectively justified by reference to legitimate purpose and aims. 

In Saunders v CHC Ireland Limited DEC-E/2011/142, the Equality Officer found that the mandatory retirement age of 55, was an appropriate and necessary aim, given that the role of winchman required a certain physicality. It was found that the retirement age was necessary to protect the health and safety of employees and customers and that the complainant was not discriminated against on the grounds of age.

In Elizabeth Sweeney v Aer Lingus Teo DEC-E2013-135, the Equality Officer concluded that management had failed to establish that the complainant’s compulsory retirement at 65 years “served a legitimate aim, or purpose”. The Equality Officer noted that a pension entitlement does not necessitate retirement and that in the absence of justification for the age discrimination, the claimant was entitled to succeed in her action. Thus, it is an important reminder to employers to review their retirement policy to include a reference as to why the employer retires workers at a particular age.

In the case of Hospira v Roper & Others LC 29/4/2013; the Labour Court held that differences in redundancy payments paid to complainants, as compared to their younger colleagues, fell within section 34 (3) (d) of the Employment Equality Act, thus permitting an exception to age discrimination. This is a significant break in the recent line of authorities on the requirement for objective justification in age discrimination cases and will have implications for employers in the context of compulsory retirement.

So is there change on the horizon? A new private members bill was recently tabled to prohibit employers from imposing compulsory retirement ages on their employees. The bill, which is based on similar progressive legislation elsewhere, including the UK and US, will introduce a voluntary system of retirement. The employer will however be entitled to provide financial incentives for voluntary retirement at a specified age.

If you are experiencing difficulties in this area or would like to discuss any employment matters further, please contact Catriona Sharkey – Catriona[at]brophysolicitors.ie

 

Catriona Sharkey

Brophy Solicitors

 

IS THERE A RIGHT TO BE FORGOTTEN?

The Court of Justice of the European Union (CJEU) recently handed down a long awaited judgement in the case of Google Spain C131/12. This case involved a challenge brought by Spanish man, Mario Costeja Gonzalez, against Google Spain and Google Inc (amongst others) and sought to oblige Google to remove links to web pages published by a newspaper, La Vanguardia, that came up when an internet user entered Mr Gonzales name into the Google search engine. 

The legal challenge and the Court’s determination focused on the provisions of the Data Protection Directive 95/46 that provide for a right of a data subject, such as Mr Gonzales, to object to data processing and a right to erasure of personal data. 

The Spanish Court referred three questions to the CJEU relating to the territorial scope of the Directive, the material and personal scope of the Directive and thirdly and most significantly, the question of whether or not data subjects have the right to object to data processing and seek erasure when it comes to search engine displays and results. 

With regard to the first question, the Court held that the search engine was within the territorial scope of the Directive. In relation to the second question, the Court determined that the operator of a search engine “processes” data for the purposes of the Directive. A search engine collects, retrieves, records, organises, stores and makes available data and the Court held that such acts constitute processing personal data bringing the actions within the material scope of the Directive. 

The third question hinged on the so-called right to be forgotten and this is the most significant area of the Court’s judgement. Here, the Court held that in certain circumstances, the operator of a search engine is obliged to remove links to web pages that are published by third parties and that contain information relating to a person in the list of results displayed following a search of that person’s name. It noted that such search results potentially concern a vast number of aspects of an individual’s private life and without the search engine the information could not have been interconnected or could have been accessed only with great difficulty. The Court also noted however that an internet user, that is the person searching, may have a legitimate interest in the search results and that a fair balance must be sought between that legitimate interest and the data subject’s fundamental rights, in particular the right to privacy and the right to protection of personal data. The Court went on to comment that the processing of data may become incompatible with the Directive when the data is inadequate, irrelevant, no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed. 

The Court has therefore not identified an absolute right to be forgotten. Rather, it has stated that there may be a legitimate interest in accessing the data about a data subject. It has highlighted the limitations imposed by the Directive in relation to data processing. A data controller, which in this case was the search engine, may not be permitted to display personal data via search engine results, where the data displayed is inadequate, irrelevant or excessive. The judgment clearly imposed great restrictions on search engines in relation to the results that it may lawfully display and there are likely to be a wide array of situations where individuals have strong grounds to request search engines to remove offending links. 

The full press release from the European Court of Justice that summarises the judgment can be read here.

Rebecca Keatinge

Brophy Solicitors

A LITTLE BIT OF KNOWLEDGE CAN BE DANGEROUS!

Sometimes people can cherry pick sections of legislation to meet their own needs, but unless expert advice is sought, this can be a costly lesson. Sometimes the loophole you think you found is in reality, a noose. 

A recent example of this came before the Labour Court (28th February 2014) where employers were ordered to pay €9,701.40 to an employee after they placed her on Health and Safety Leave ( as per Section 18 of the Maternity and Protection Act) shortly after she announced she was three months pregnant. 

In August 2011 Mary was hired as salon manager so that the two owners, her employers could concentrate on the beauty treatment side of their business. In December 2011, Mary announced she was three months pregnant. In line with good practise, on the 9th December, her employers called Mary into a risk assessment meeting in line with Health and Safety obligations. The completed form identified a few small risks (such as moving/lifting items) but nothing that could not be easily accommodated or that represented a significant proportion of Mary’s employment.

Up to this point, the salon had acted completely in compliance with employment legislation. However, four days later, her employers called Mary back into a meeting and immediately placed her on Health and Safety Leave. Under this legislation an employer is only obliged to pay an employee for the first three weeks of absence. Health and Safety Leave is used in circumstances where (i) there are risks that the employer can not remove and (ii) that there is no suitable alternative role for the employee. Mary’s assessment form clearly showed that she was, as are other hairdressers, able to continue to work during her pregnancy and the salon owners erred in placing her on Health and Safety Leave. Mary was awarded compensation and her full 20 weeks pay earned. 

Pregnancy is essential to society and thankfully legislation ensures that women are no longer penalised in the workforce for having a family. Employers need to be mindful of their obligations, or as this case proves, pay a hefty price.

Laura Gillen

Brophy Solicitors

INJURY CLAIMS AND SOCIAL MEDIA

If you reveal your secrets to the wind, you should not blame the wind for revealing them to the trees. ~Khalil Gibran, Sand and Foam

In the age of social media, we all need to be aware of the saying ‘that the spoken word can never be unspoken’ especially as increasingly we play out our lives on public platforms.

Many defendants are now rigorously defending cases that may have previously been settled and they will use all the tools available to discredit claimants or disprove their claims. Facebook, Twitter, Instagram and many other sites can leave a permanent record of your activities and lifestyle and can and can been used in evidence against you!

The Civil Liability and Courts Act 2004 was enacted to discourage people from bringing false or exaggerated claims in personal injury cases and cases have been dismissed where it has be proven that there has been false and misleading evidence submitted.

In December 2012, a plaintiff alleged that as a result of a road traffic accident on 17th November 2005 he suffered an injury to his left hand, his left knee and his right foot. He was taken by ambulance to hospital and went on to have an operation and was immobilised for approximately three months thereafter. The plaintiff then had further surgery to remove a piece of plastic from his hand. It was accepted by the court that his injuries were of a serious nature.

However, in the course of giving evidence, the defendants questioned the plaintiff on his hobby of “car-drifting”. The plaintiff stated that he had to give up this hobby and he repeated this assertion to medical attendants when assessed for the purposes of the case. However, in the course of evidence, it became clear that the plaintiff had not in fact given up this hobby and photographs and videos were produced showing the plaintiff engaging in this and other activities. 

In his written judgment, Mr. Justice Smyth stated that he was satisfied that the plaintiff's claim for loss of earnings and loss of activities was deliberately exaggerated. He was also satisfied as a matter of probability that the plaintiff himself knew that the information was false and misleading and dismissed the claim in its entirety. Facebook was used as evidence against another plaintiff whereby it was alleged that he "overstated his injuries" and engaged in "an act of dishonesty" when he denied he participated in a charity parachute jump six months after the incident according Ms Justice Mary Irvine. His facebook page was used to discredit his claim and his case was ultimately dismissed under Section 26 of The Civil Liability and Courts Act 2004 and he faced a large legal fee from the defendant insurance company.

If you have any questions about a potential injury claim please feel free to contact me at laura{at}brophysolicitors.ie and I will be happy to access your case.

Laura Gillen

Brophy Solicitors

CIVIL LITIGATION UPDATE

This week we learnt of two important changes in relation to the jurisdiction of the Civil Courts. 

The first change relates to the coming into effect of provisions of the Courts & Civil Law (Miscellaneous Provisions) Act 2013 that will take effect on the 3rd of February 2014. 

This significant change will increase the monetary jurisdictions of the Civil Courts. The jurisdiction of the District Court in civil proceedings will be increased to €15,000, up from €6,384. The jurisdiction of the Circuit Court will increase from €28,092 to €75,000 except in personal injury cases where a new monetary jurisdiction of €60,000 will apply. 

These changes are significant as they are likely to reduce the cost of litigation. For example, a case that would previously have been initiated in the High Court may fall within the monetary jurisdiction of the Circuit Court, reducing the cost of stamp duty and legal fees. It remains to be seen however if the courts will be adequately resourced to deal with the possible increase in the volume of cases being initiated in the Circuit or District Court. 

The second development comes through an amendment to the Civil Liability Act, 1961. The maximum amount that a dependant of a deceased person could claim in a case of wrongful death stood at €25,394.76. This limit has been increased to €35,000 applicable from the 11th of January 2014. This sum of damages is called the solatium and is claimable in fatal injury cases. It is important to bear in mind however that the solatium available is a collective amount that must be shared by all affected dependents. It is the role of a judge to assess what level of compensation for mental distress is appropriate but in circumstances where the total for all dependents exceeds the statutory limit then it must be reduced to the new statutory limit of €35,000.

Rebecca Keatinge

Brophy Solicitors

CONSTITUTIONAL CHALLENGE TO THE REFERENDUM CHALLENGE

We were back in the High Court this week representing Ms Joanna Jordan in her challenge in relation to the Children Referendum.

Readers may recall that a related challenge was heard in the High Court in May 2013. Mr Justice McDermott determined that matter in late October and declined to grant our client’s petition to annul the provisional referendum certificate. We subsequently lodged a Supreme Court appeal and it is expected that the appeal will be heard in the Spring. 

We returned to the High Court this week to make arguments in relation to our challenge to the constitutionality of the Referendum Act 1994. These arguments were not fully argued in the petition proceedings in May and by necessity were initiated by way of plenary proceedings. The plenary proceedings are distinct from the petition proceedings which challenged the provisional referendum certificate itself. 

The constitutional challenge was before Mr Justice McDermott over three days this week and consisted of legal arguments by counsel representing the petitioner and the State. Our client’s core argument is that specific provisions of the 1994 Referendum Act are unconstitutional as they do not provide her with an effective remedy against the breach by the State of the McKenna principals in relation to the Children Referendum, as established in the McCrystal case. We are saying that it is impossible for our client to win her case because the standard of proof required by the Act means that unless we can show that the “Yes” vote would have been a “No” vote had the Government acted legally, we are bound to lose. Given that the ballot was a secret ballot, we say it was impossible to prove that people would have voted in a particular manner if the Government acted within the law. 

Mr Justice McDermott reserved judgment today and we anticipate that a decision will be handed down in the new year.

Rebecca Keatinge

Brophy Solicitors

TRAVELLER AND ROMA RIGHTS

We were pleased to be included in training last week on Traveller and Roma Rights facilitated by the Irish Traveller Movement and the Council of Europe. The training was conducted principally by Nuala Mole of the Advice on Individual Rights in Europe Centre (AIRE Centre) and David Joyce BL, with valuable contributions from representatives of the Irish Traveller Movement Independent Law Centre and the European Network Against Racism. The training provided a very useful overview of the relevant standards set by the European Convention on Human Rights and in particular recent caselaw on Roma and Traveller rights. We are representing several clients from the Roma and Traveller Community particularly on housing and social welfare matters and found the training helpful to ensure our approach to these matters takes into account recent developments in European law and policy. 

Rebecca Keatinge

Brophy Solicitors

13 YEARS IS TOO LONG TO WAIT FOR A HOME

We are acting for a client who has been waiting for a decision on her application for social housing for over 13 years. She first applied for social housing in April 2000 and was assessed as eligible as early as August 2000. Average waiting times are stated to be between three and five years but despite extensive correspondence from our client to the relevant council in relation to her outstanding application, no formal offer of accommodation has ever been made to our client. 

It may come as no surprise that our client is from the Travelling community. We note that hundreds of people gathered in Dublin earlier this week to protest at what was called the “total failure” of the 15-year-old Traveller accommodation strategy. The appalling facts of our client’s case appear to confirm this failure. Calls have been made for control of housing allocation to the Travelling community to be taken away from city and county councils and for an independent Traveller accommodation agency to be established. The National Traveller Accommodation Consultative Committee estimates that there are more than 1,200 Traveller families of an estimated total of 9,911 families effectively homeless in the State, more than in 1999.

Our own experience is that the current system is failing to meet Traveller accommodation needs. It is completely unacceptable that one individual could wait 13 years for an offer of accommodation. We intend to issue proceedings very shortly on the basis that the failure of the relevant council to allocate our client social housing amounts to a decision to a refusal of her application. We will also be claiming that our client has been treated differently to other applicants for social housing on account of her membership of the Travelling community.

Rebecca Keatinge

Brophy Solicitors

LANDLORDS BEWARE!

We recently assisted one of our clients in securing a very positive outcome in a case before the Private Residential Tenancies Board. The case serves as a cautionary tale to any residential landlord attempting to compel their tenant to vacate a rented premises. Our basic message is to proceed with caution and in line with due process. 

We acted for the tenant in this dispute. He was in substantial arrears of rent and was accused of anti-social behaviour by his landlord. Some months before the matter came before the PRTB, the landlord in an attempt to compel the tenant to vacate the premises, attended the premises unannounced with three others including a locksmith. He proceeded to let himself into the premises and then made attempts to change the locks. It turned out that the tenants were in fact inside the premises and believed that the landlord was an intruder, breaking into the house. The Gardaí attended the scene and advised the landlord to make a complaint to the PRTB. 

When the case came before the PRTB, our client did not dispute the arrears of rent but strongly disputed the allegation of anti-social behaviour. He also complained about the landlord’s attempted break into the property and reported racist and abusive language used during the incident. 

The Adjudicator found overwhelmingly in our client’s favour. While the rent arrears were confirmed, the landlord was found to have been in “a most severe breach” of his obligations by attending the property with the intention of illegally terminating the tenancy. The award of damages in our client’s favour cancelled out the substantial rent arrears. In addition, all notices of termination served were found to be flawed and invalid and the landlord is essentially back to square one. 

The Residential Tenancies Act 2004 sets out extensive obligations on both landlords and tenants with respect of residential tenancies. It also stipulates circumstances and procedures for termination of any tenancy and notice requirements of any such terminations. 

This case shows that it is absolutely imperative that a landlord complies with his obligations under the Act, particularly his obligation to afford the tenant peaceful and exclusive occupation of the rented property. Any breach will be treated harshly and may invite a substantial award of damages against landlord. 

The PRTB website has helpful information about the relevant procedures. We also have extensive experience in this area and are in a position to advise both landlords and tenants on any issues that have arisen.

Rebecca Keatinge

Brophy Solicitors

SUPREME COURT APPEAL IN REFERENDUM CHALLENGE

Brophy's Law Blog

We act for petitioner Ms Joanna Jordan in her challenge to the outcome of the Children Referendum. We attended the High Court last Friday when Mr Justice McDermott gave his judgment in this important case. 

Mr Justice McDermott granted leave for our client to present her petition to challenge the provisional referendum certificate. He accepted that the petitioner had established a fair bona fide issue to be tried. He was also satisfied that the petitioner had raised a serious issue to be tried that the government information campaign had the potential to materially affect the result of the Referendum as a whole. 

Mr Justice McDermott declined however to grant the petition. The Judge was not satisfied that on the balance of probabilities the evidence showed that the wrongful conduct of the Government in their information campaign materially affected the result of the Referendum as a whole. 

Last Friday, we confirmed our petitioner’s instructions to appeal the decision of Mr Justice McDermott to dismiss the petition. We immediately sought a stay on the Order of the High Court to enable our client to lodge her Notice of Appeal with the Supreme Court. The stay was essential in order to avoid the provisional referendum certificate being confirmed and the Amendment to the Constitution passing into law. In such circumstances, our client would have been denied a right to appeal and her challenge would have been moot. 

The High Court granted us a stay on the Order for a period of two weeks. Today, Thursday, we filed a Notice of Appeal with the Supreme Court on behalf of the petitioner. We also made a application for a priority hearing to the Supreme Court this morning, that was granted by Chief Justice Denham. Chief Justice Denham confirmed that the stay will be extended until the conclusion of the Supreme Court appeal. Unfortunately the Court indicated this morning that the hearing of the Supreme Court appeal will not take place until 2014.

Brophy Solicitors

MEDICAL NEGLIGENCE CLAIMS & FREEDOM OF INFORMATION REQUESTS

Requests for information under the Freedom of Information Acts are often a very valuable source of information when preparing a claim against a doctor or a hospital. It is possible to obtain copies of policies, protocols, guidelines and approved practices in relation to a wide variety of aspects of medical care and these can give a helpful indication of whether there was a deviation from the accepted standard of care.

We recently made two such requests and received two quite different responses. In one request, we sought a number of documents in relation to the management of labour at a particular maternity hospital. We received a prompt reply from the hospital and copies of over 20 documents. These cover a wide range of standard procedures and guidelines that apply when a complication in labour arises. These guidelines originate from a number of different sources including the hospital itself but also from An Bord Altranais and the Royal College of Obstetricians & Gynaecologists. The documents will assist us in assessing where the standard of care our client and her baby received may have deviated from the norm and this is an essential element to a successful claim. 

Simultaneously, we made a similar request to a Dublin hospital requesting information in relation to procedures and guidelines in their emergency department. We were taken aback when we received a letter saying that our request had been refused relying on section 21(1)(b) of the Freedom of Information Act. The hospital said that our request was refused because disclosure of the records concerned could reasonably be expected to have a significant, adverse effect on the performance by a public body of any of its functions in relation to management. Needless to say, we do not understand what adverse impact disclosure of the records could have on the public body and intend to appeal this refusal. 

The Freedom of Information Acts ensure transparency and accountability of public bodies. For our purposes, they provide a convenient way of obtaining documents that are valuable in our assessment of whether or not a doctor met the accepted standard of care when treating our client, as this standard is often reflected in relevant protocols or guidelines.

Rebecca Keatinge

Brophy Solicitors

DECISION IN CHILDREN REFERENDUM CHALLENGE DUE THIS FRIDAY

We act for petitioner Ms Joanna Jordan, from Dún Laoghaire, Co Dublin, in her challenge to the outcome of the Children Referendum. This case concluded on 17th May 2013 after a 14 day hearing in the High Court. Mr Justice McDermott reserved his judgment on that date. We have now been informed that a decision will be handed down in this important case this Friday, 18th October 2013. We will provide a full update on the decision next week. 

Rebecca Keatinge

Brophy Solicitors

IRELAND'S THREE PROPOSALS FOR GENDER RECOGNITION LEGISLATION: DID ANYONE GET IT RIGHT?

A transgender or trans-person is a person whose self-identified gender does not reflect the gender assigned to him or her at birth. Under Irish Law, transgender individuals cannot legally change their gender on their birth certificate under any circumstance – applying to schools/colleges and for a driver’s license become extremely problematic tasks for trans people.

Transgender people in Ireland have been waiting for gender recognition legislation to be published by the government since 2007, where the High Court ruled that Ireland’s failure to recognise Dr. Lydia Foy’s female gender was in violation of her rights under Article 8 of the European Court of Human Rights. Sixteen years have past, since Dr. Foy first began legal proceedings to get a birth cert and she is still waiting! Since this judgement, Ireland has been the subject of much criticism from international human rights bodies over its failure to afford such legal recognition. On the 27th of February Dr. Foy issued new proceedings in the Irish High Court, seeking orders requiring the government to act on the 2007 judgment - http://www.flac.ie/news/2013/02/27/new-legal-proceedings-issued-to-highlight-continued-state-injustice-on-transgender-rights/

The excitement of the Gender Recognition Advisory Group’s report in 2011 was short lived. Despite recommending legislation, it was deemed disappointing and conservative. It required individuals to be a minimum of 18 years old, those in existing marriages or civil partnerships to be excluded from the scheme and a formal diagnosis of Gender Identity Disorder or gender reassignment surgery to have taken place. The latter two are particularly problematic from a human rights perspective, excluding those who do not have this particular diagnosis or surgery from exercising their right. Ireland is the only country in the European Union that does not legally recognise transgender people in their preferred gender. But there is change on the horizon.

Recently three Legal Recognition of Gender bills have been put forward, with an aim to resolve the incompatibility identified by the High Court in Foy v An tArd Chláraitheoir. Each bill provides that everyone has a right to legal recognition of their self-identified gender and to be issued with official documentation.

Social Protection Minister Joan Burton published the General Scheme of the Gender Recognition Bill, following Cabinet approval, on the 17th of July 2013 - http://www.welfare.ie/en/Pages/Gender-Recognition-Bill-2013.aspx. This draft bill is an improvement on the 2011 report but it still comes up short. It requires a self-declaration that the applicant intends to live permanently in their self – identified gender and a validation from a qualified physician that a person is transgender – seemingly a diagnosis under another name. However, there is no recognition for those under 18; prolonging the confusion and isolation of young trans people. Those in a happy marriages or civil partnership will also be forced to divorce to meet the criteria, avoiding any possibility of having same sex marriages.

Sinn Féin spokesperson for Social Protection, Aengus Ó Snodaigh's launched a Private Members Gender Recogntion Bill on the 22nd of May 2013 - http://www.oireachtas.ie/documents/bills28/bills/2013/5613/b5613d.pdf. A simple piece of legislation that offers a liberal, human rights based approach. It abolishes the prerequisite age of 18 plus and allows transgender people in valid marriages or civil partnerships to be included in the scheme. The Argentinian Model is emulated in this bill, a model that was heralded as the most progressive in the world, enshrining the self – determination of trans people. However, this bill lacks the necessary detail for such a complex and sensitive area.

On the 27th of June 2013 Senator Katherine Zappone introduced the Legal Recognition of Gender Bill in the Seanad. Following on from the aforementioned bills, it adopts the self – declarations model - http://www.oireachtas.ie/viewdoc.asp?DocID=23950&&CatID=59

It provides for a Gender Recognition Register which would collate self-declarations of gender from transgender individuals. The information contained on this register would then be used when new birth certificates are issued. The bill does not require individuals to attain a medical diagnosis to be eligible for recognition, allowing both trans and intersex people the possibility to exercise their rights. Furthermore, it enables trans and intersex youth under 18 to make an application for recognition. This can be done with the support of one legal guardian or if the individual is under 16 their guardian can make an application on their behalf. Furthermore, it eliminates the prerequisite that applicants must be single. Senator Zappone contends that “the bill seeks to ensure the dignity of transgender people and protect their rights to self-determine their identity.” A statement we here at Brophy Solicitors strongly agree with.

Although all developments in this area are welcomed, Minister Burton’s bill; albeit a step in the right direction, is a missed opportunity. The proposal has not become law yet and there is still time to influence the shape to a model similar to that of Senator Zappone’s, one that embodies the principles of equality and non-discrimination of all Irish people within its legal framework.

Rebecca Townsend

Brophy Solicitors

MEDICAL NEGLIGENCE CLAIMS & THE STATUTE OF LIMITATIONS

We were contacted by a new client during the week in relation to a medical negligence claim she wishes to take against her former chiropractor. The lady who contacted us is now being treated by a neurologist because the treatment from the chiropractor aggravated a pre-existing back condition and ruptured veins and nerves such that she can no longer work.

We have investigated the claim and unfortunately, because of the very strict time limits that apply to medical negligence claims, it appears that this person may be statute barred from bringing a claim against her chiropractor. 

Recent changes to the Civil Liability and Courts Act 2004 reduced the time limit for issuing such claims from three years to two years from the date of accrual of the cause of action. Medical negligence actions fall into the same category as personal injury claims for the purposes of the time limits that apply. This is in many respects unfair and illogical because medical negligence claims are usually considerably more complex and difficult to investigate when compared to personal injury claims. A further complication is the natural reluctance of a patient to explore a claim against their doctor which can delay matters further and cause serious difficulties for many plaintiffs who ultimately decide to bring a claim as they may come to this decision too late. 

It is however important to bear in mind that Section 2 of the State of Limitations (Amendment) Act 1991 includes a “date of knowledge” provision or saver. This means that a plaintiff may rely on that fact that the two year time limit does not start until they had “knowledge” of the injury. The question then becomes what constitutes “knowledge” for the purposes of the Act. 

The date of knowledge saver has been the subject of three recent Supreme Court decisions. Two of these Supreme Court cases arose out of claims against Mr Michael Neary, the gynaecologist/obstetrician who performed an inordinate number of caesarean hysterectomies at Our Lady of Lourdes Hospital in Drogheda over a 25 year period. What these decisions establish is that even a limited knowledge or strong suspicion of an injury being caused by negligence of a doctor may be sufficient to constitute knowledge and commence the two year limitation period. In one of the cases, the Court in effect held that the statue had begun to run from the moment the plaintiff wrote a letter of complaint to the Medical Council, notwithstanding the fact that she did not have a supportive medical expert report confirming negligence at that point. 

It is therefore absolutely vital that where a prospective plaintiff has a suspicion that an injury may have arisen because of negligence they seek legal advice and obtain a medical report at the earliest opportunity, and well before the two year deadline. Where claims are investigated or litigated too late and the limitation period has expired, a plaintiff whatever the severity of their injury may have no recourse to compensation or relief.

Rebecca Keatinge

Brophy Solicitors