DEBT COLLECTION BEST PRACTICES

1. Create a Clear Payment Policy

Manage the expectations of your client from the beginning of the working relationship. Make certain that your client is handed a payment policy that is clearly outlined in writing. 

2. Instil Urgency

Make sure to send an invoice at the earliest opportunity, stating the payment terms clearly on the invoice. Email invoices to clients: this is the best way to ensure that your clients are receiving them. It is a useful tactic if you are regularly in contact with them via email, as they have no way to claim they have not seen the bill.

3. Review Regularly

Staying on top of the situation is essential to reducing overdue accounts. When an account becomes overdue, there is no reason to hesitate in following up with a polite email to your client. If your email goes unanswered, it is time to follow up with a chasing letter and than a phone call.

4. Arm Yourself with the Facts

Review all the paperwork on the debtor before making a follow up phone call. It is critical that you have the specifics of the debt you are calling about. Having the facts in front of you, keeps you in control. This will help to make sure you do not lose sight of your objectives and that you are not derailed by a question you cannot answer. Identify the person who will pay the bill and make sure you speak to the correct individual.

5. Keep Calm

Most of us take our speaking voices for granted. But the tone, pitch, inflection and even the speed at which you talk can have a powerful influence on your listener. Maintain a friendly and professional tone of voice. Remain calm and polite and keep your temper at bay. You will not do yourself any favours getting into an argument. 

6. Be Flexible 

Be ready to adjust to the situation. Think about the customer you are dealing with and adapt to meet the circumstances. Provide options for instalments and payment plans. Remember negotiating is a skill and there is a specific time and place for it. Know what to expect and when to push for more. 

7. Document Everything

Clearly document your payments on account and the circumstances of those payments. Whilst talking to clients about outstanding debts, take careful notes about everything that was discussed, including the client’s comments in case there are any future disputes.

8. Nail things down

Never, ever leave a contact open ended. All contacts should result in a commitment to payment. Once a payment plan has been agreed to, verbally recap the terms and send a written summary to the debtor. This should include specifics of when the debtor will send each payment and what form of payment will be used. Ask the debtor to call or email you once a payment has been made.

9. Hire a Debt Collection Solicitor

If all else fails and you cannot retrieve your debts on your own, its time to hire our debt collection team at Brophy Solicitors. 

To find out more about recovery of your debts, please contact Brophy Solicitors on (01) 679 7930 or email catriona{at}brophysolicitors.ie 

Catriona Sharkey

Brophy Solicitors

SUPREME COURT DECISION IN RELATION TO UPWARDS ONLY RENT REVIEW CLAUSES

A Supreme Court decision yesterday overturned a High Court ruling that the rent payable by Bewleys on Grafton Street be allowed to fall to reflect market levels.

The matter of Ickendel Limited v Bewleys café Grafton Street Limited [2013] IEHC came before the High Court last year. The case concerned the appointment of an arbitrator who was appointed to review the rent and who in turn referred the matter to the High Court to seek direction from the court due to the ambiguity of the wording in the lease.

The lease in question was entered into on the 22nd September 1987 and was for a term of 35 years, with rent reviews every five years. The rent was reviewed in 1992, 1997, 2002 and finally in 2007. This was during the height of the boom. The dispute arose when the rent was due to be reviewed in 2012 and Bewleys sought a reduction as opposed to an increase to reflect the market changes.

There was ambiguity in the wording of the lease and the argument made by Bewleys Café was that the rent set in 1987 was to be a base line of which the rent could not go below. The High Court agreed with Bewleys and allowed the rent to be reduced as they said that due to the uncertainty of the wording of the lease, it could not be said that the rent was to be upwards only.

The High Court decision had allowed for the possibility of negotiation where rent was up for review.

However, the decision of the Supreme Court yesterday is disappointing for retailers and businesses with similar rent review clauses to Bewley’s Cafe . The decision of the Supreme Court centred around their interpretation of the relevant clause in the lease between Ickendel and Bewleys Cafe. They found that the lease provided for an upwards only rent review, even though it had not been expressed in those terms. 

This Supreme Court decision highlights the importance of clarity and certainty when drafting the terms of your lease.

One point to bear in mind for the future is that leases entered into after the 28th February, 2010 will have the benefit of the protection offered by Section 132 of the Land and Conveyancing Law Reform Act 2009. This provides that any rent review clause in a lease or agreement for a lease entered into after this time (and relating to commercial property) will be construed as providing that the rent following the review can be fixed as being higher, lower or the same as that of the review date, regardless of any attempt to make the review clause an ‘upwards only’ review clause at the time of entering into the agreement.

However, we must note that the provision will not provide any assistance to existing tenants whose leases date prior to the 28th February 2010 as Section 132 does not apply retrospectively. This was illustrated by the decision of Mr Justice O’Neill on the 16th May 2013 were it was held that the upwards only rent review clause in the 20 year lease of the Medical Council’s headquarters at Kingram House, Dublin was not affected by a law banning upwards only rent reviews for commercial premises.

If you have commercial premises and would like to discuss your rent review clauses, please do not hesitate to contact us and we would be happy to assist.

Katie Nugent,
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

UPDATE ON CONSTITUTIONAL CHALLENGE TO THE CHILDREN’S REFERENDUM

In December 2013, we represented Ms Joanna Jordan in her High Court challenge to the outcome of the Children’s Referendum, specifically in relation to the constitutionality of the Referendum Act 1994. The Court has not as yet determined the case. However, we were notified this week that judgment will be given by Mr Justice McDermott this Friday 20th June and we will post a further update once we have received the judgement. 

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 2013 and declined to grant our client’s petition to annul the provisional referendum certificate. We subsequently lodged a Supreme Court appeal and obtained priority but this appeal has not yet been listed for hearing. 

For further background, please see our previous posts here, here and here. 

Rebecca Keatinge
Brophy Solicitors

THE IMPORTANCE OF UNDERSTANDING THE ROLE OF A GUARDIAN

Guardianship relates to the duties of a person as to the welfare, care and upbringing of a child. A guardian has a duty to maintain and care for the child and has a right to make decisions in major areas of the child’s life. For example, a guardian can decide where a child can attend school, the religion which the child shall be brought up in and give their consent to medical treatments or other issues which might effect the child in question.

Guardianship rights are dependent on the marital status of the parents. Where the parents are married, both parents are automatically guardians of their child. If the parents are unmarried, only the mother will have automatic guardianship rights. It will be necessary for the father to; 

• Come to an agreement with the mother of the child to be made a guardian. A Statutory Declaration would need to be signed to this effect.
• Make an application to court to be made a guardian
• Be appointed as a testamentary guardian by the mother in the event of her death.

The courts take the role of a guardian very seriously. Judge John Lindsay recently dismissed the case of a father who he found “had not displayed any understanding of the role of a guardian”. However, the courts will review and treat such applications for guardianship, access and welfare fairly and objectively. For instance, a homeless man who had just acquired a house was granted an increase in the hours to which he was permitted access from 2 to 7 hours per week as the Judge deemed it to be “good for the child”.

The paramount consideration in family law cases where there are children involved will always be the welfare and best interests of the children. Family law cases can often become highly emotional and highly charged, especially where there are children involved. We are very experienced at dealing with such matters and attempting to find some common ground on which both parties might be able to agree. If you would like some advice on your family law situation, please do not hesitate to contact us and we would be happy to assist.

Katie Nugent

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

 

SLIPPING, TRIPPING, FALLING

I could easily write an article on the day in the life of my two year old son under this heading. Thankfully he is far too young to realise he could potentially sue me for leaving my high heels and handbag lying around the place.

Slipping, tripping and falling reduces significantly once you leave the toddler years behind you however it can happen and oftentimes through no fault of your own. If you sustain an injury by virtue of a slipping, tripping and/or falling accident you should do the following:-

1. Seek medical attention.

2. Take a note of the exact location of the accident, time of day and weather conditions if applicable. Photographs should also be taken if possible. It is surprising how easily an uneven surface can be removed or repaired!

3. Make a note of any witnesses and their contact details

4. Report the incident to the relevant person (property owner, member of staff etc.)

The question then becomes, who is responsible for your accident? I am a personal injury solicitor and I can assist you in determining who is responsible for any injuries you may have sustained. The majority of my caseload involving these types of accidents can be divided into two separate areas.

1. Indoor Injuries

Loose cables, uneven surfaces, insufficient lighting, extremely hot water in taps, loose mats, wet floors etc.

2. Outdoor Injuries

Cracks in pavements, not properly maintained road surfaces, uneven surfaces etc.

If you have been involved in an accident and you feel you are not to blame, please feel free to call me at any stage or send an email to laura[at]brophysolicitors.ie

 

 

Laura Gillen

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

EMPLOYMENT TERMINATION PAYMENTS

Employment Termination Payments (EFPs) are lump sum payments made to employees on the termination of their employment contract.

Firstly payments made to departing employees essentially fall into 3 different categories; 

(1) Statutory Redundancy, 

(2) Ex-gratia Termination Payments, and 

(3) payments made on foot of a legal obligation, e.g. a payment required via the Employee’s employment contract.

In general, any payments falling into the third category (i.e. non-ex-gratia payments) are taxable in full and are effectively treated the same as a bonus for PAYE/PRSI purposes. The Tax Reliefs and Exemptions available for termination payments only apply to payments falling within the first two categories.

However the European Commission has today officially asked Ireland to amend its legislation arguing that the rules lead to a higher tax burden for individuals who work in another member state for an Irish company. According to the Commission, the law as it stands is contrary to the free movement of workers and failure to comply will lead to the matter being referred to the European Court of Justice. As it stands, to compute the tax relief on such payments Irish law takes into account only the number of years service for the company while in Ireland and it does not take into consideration the number of years service in the same company based in other member states. 

It will be interesting to see how this unfolds!

Laura Gillen

Brophy Solicitors

THE EMPLOYMENT APPEALS TRIBUNAL ANNUAL REPORT IN A NUTSHELL

Since 2007 there has been an ever increasing number of employment disputes referred to the Employment Appeals Tribunal. According to the Employment Appeal Tribunal’s most recent report which was published in December 2013, the number of cases disposed of has risen from 2,807 in 2007 to 7,624 in 2012, an increase of 172% in the period. 

Interestingly there has been a notable decrease in the number of cases referred to the Tribunal in 2012 compared with previous years. Between the years 2004 and 2007 the number of cases referred to the Tribunal averaged 3,500 per year. According to the report, in 2008 the first major increase occurred when 5,457 cases were referred to the Tribunal. An average of 8,800 was received in the years 2009-2011 with a high of 9,458 in 2009. The first major decrease in the number of cases referred occurred in 2012 when the drop was from 8,458 in 2011 to 5,623 in 2012 (a 34% decrease). 

The unprecedented growth in the referral of cases has had a knock on affect on the waiting period for a case to be heard. In Dublin the average waiting period is 77 weeks and 82 weeks in provincial areas. 

In 2012 the top 6 categories of case referred to the Employment Appeals Tribunal in 2012 were:

1. Unfair dismissal 31%

2. Redundancy 22%

3. Minimum Notice & Terms of Employment 17%

4. Payment of Wages Act, 1991 14%

5. Organisation of Working Time Act, 1997 7%

6. Terms of Employment (Information) Acts 5%.

Unfair Dismissals Acts 1977 to 2007

According to the report, in 2012 the Tribunal disposed of 1,791 unfair dismissal cases and awarded compensation amounting to €6,981,979.49 in 377 cases. The average amount of compensation awarded by the Tribunal was €18,519.84. In addition to compensation the Tribunal ordered re-instatement in 4 cases and re-engagement in 10 cases.

Other Claims

In addition to the cases referred above there were 11 cases referred under the Maternity Protection Acts 1994 and 2004 compared with only 2 referrals in 2011; 2 under the Parental Leave Acts 1998 and 2006; 72 cases under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (TUPE); and 28 cases under European Communities (Protection of Employment) Regulations 2000. 

929 cases were referred under the Minimum Notice and Terms of Employment Acts 1973 to 2005 and it is notable that 844 of these were allowed.

Representation 

There is no requirement for representation in order to bring a case before the Tribunal.

In 2012 1,917 employees had representation at their hearings. Of these, 397 cases representation was by Trade Unions; 1,196 employees were represented by legal professionals; and 342 were represented by “other persons”.

In the same period employers had representation in 1,116 cases with 659 by legal representatives, 390 by other persons, and 67 by employers’ associations.

The highest level of representation according to the report was in unfair dismissal cases.

If you would like further information or have an employment query please contact catriona(at)brophysolicitors.ie

JUDICIAL REVIEW IN RELATION TO REFUSAL OF ROAD HAULAGE LICENCE

Last week, we were granted leave by Mr Justice Peart last week to institute judicial review proceedings against the Minister for Transport, Tourism and Sport. We are seeking to challenge a decision to refuse our client a road haulage licence on the basis that he does not satisfy the good repute requirement. 

An application for judicial review is warranted in circumstances where a public body has not properly exercised their powers or exceeded their powers. It is open to an individual to challenge the decision-making process and to seek a variety of reliefs, including interim relief, from the Court. 

It is essential to note that judicial review is concerned not with the outcome of the decision but with the decision-making process itself. Generally, a right of appeal will be available in circumstances where an individual is unhappy with the outcome of the decision. If however, the decision-making process is flawed, then judicial review may be the appropriate remedy. 

For further details in relation to judicial review applications and remedies available in judicial review proceedings, see here.

Rebecca Keatinge

Brophy Solicitors

STRAIN INJURY: EMPLOYER'S OBLIGATIONS

Repetitive strain injury, or RSI, is an umbrella term used to described work related musculoskeletal (muscles, tendons, ligaments, cartilage, bone) disorder affecting the neck, shoulder, arm, wrist and hand. The most obvious cause of RSI is repetitive movements, which can cause inflammation of the tendons of the hand or forearm. This is more particularly true if the movements are carried out in an awkward posture without suitable rest periods. The main risk factors include:- poor posture, handling load, lack of variation in tasks performed, maladjusted chair, stress, or insufficient rest. The risk of RSI increases with age. Studies have also shown that women are more susceptible as are those who are unfit. 

We often get clients coming into us who feel they are suffering from repetitive strain injury as a result of poor work practices or employer’s breaches of health and safety regulations. Employers are required to carry out risk assessments for all hazardous procedures and should be able to identify those jobs with a risk of RSI and thereafter to provide adequate breaks. In additional employers are expected to provide proper training in the relevant procedures to ensure that employees are carrying out the work in the safest manner possible. Failure to do so may mean that an employer will be held liable to pay damages. 

If you believe that your injury has been caused by dangerous working practices and that you have suffered as a result of your employer’s failure to provide a safe system of work, please feel free to contact our office to contact me. I am a solicitor who specialises in personal injury compensation claims and I will be happy to meet with you to discuss your claim.

Laura Gillen

Brophy Solicitors

ENFORCEMENT OF DECISIONS OF THE PRTB

We were interested to read this week of an application to the Circuit Court by the Private Residential Tenancies Board to enforce one of its orders. 

The application was brought on behalf of a landlord in relation to arrears of rent. The PRTB were seeking enforcement of their order for rent arrears and possession of the property. The Court heard that the tenant had not paid rent since 2011 and remained in possession of the property, building up very substantial arrears of almost €42,000. Judge Linnane directed that the tenant vacate the property within seven days of being served with the court order and granted judgment against the tenant for €41,809 and costs.

This situation is any landlord’s worst nightmare. It well illustrates the lengthy delays that landlords can face in securing final resolution of a dispute with their tenant. Furthermore, it is unlikely that the landlord in that case will be able to recover all the monies he is owed despite obtaining a judgment and an order for his costs. 

We recently represented a client before the Tenancy Tribunal of the PRTB. The other side put a proposal to us to settle the case prior to the hearing and we advised our client as to whether or not we would recommend the proposal to him. One factor in our advice to our client during settlement negotiations was that in circumstances where the other side did not comply with any order made by the Tribunal, enforcement of the order would add further costs and delay. The client ultimately decided that he was happy to accept the proposal and the case settled with our client receiving a favourable sum by way of damages. 

It is unfortunate that a potential difficulty with enforcement must be taken into account in such cases. However, it has to be an important consideration where such enforcement could take a considerable time and be ultimately unrewarded.

Rebecca Keatinge

Brophy Solicitors

MATERNITY LEAVE: EMPLOYERS KNOW YOUR OBLIGATIONS, EMPLOYEES KNOW YOUR RIGHTS!

It can be difficult enough trying to cope with morning sickness, tiredness and finding clothes to fit without the added stress and worry about job security during your pregnancy. Maternity Rights in Ireland are reasonably well covered by the legislation. Below are a summary of your rights as an employee and obligations as an employer:-

• Working women in Ireland are entitled to 26 weeks maternity leave plus an additional 16 weeks unpaid maternity leave. The employee must inform her employer in writing of her intention to take maternity leave together with providing a medical certificate confirming the due date. 
• The employee can decide when to take leave so long as at least two weeks are taken before the due date and 4 weeks after the birth of the child. 
• If the employee intents to extend her leave beyond the initial 26 weeks then she should notify her employer as soon as possible but not less than four weeks before her expected date of return to work. 
• Employees are entitled to paid time off for both ante-natal and post-natal care. This includes paid time off for medical appointments, examinations and tests.
• The right not to be dismissed for any pregnancy-related reason
• There is no legislation in Ireland that governs an employee’s entitlement to sick pay except sick leave during pregnancy. 
• So long as an employee has notified the employer in writing of her intention to return to work by four weeks before the date she expects to return, she is entitled to the same position she occupied before she took her maternity leave. This means the same terms and conditions the same pay etc.
• In a situation where it is not practicable for the employee to return to the same position, she has the right to a suitable alternative position. This position must satisfy two conditions: 
1. the work being done is of the same kind that she had done before her leave and that it is appropriate for her to do under the circumstances and 
2. the terms and conditions regarding where the work is to be done, the capacity in which she is being employed, terms and conditions of the employment are not less favourable to the employee than her job prior to her leave.

PAY

• There is no obligation on an employer to pay employees on maternity leave. However, it is important that if your contract of employment states that you are entitled to pay during maternity leave, then you must be paid.
• Employees on maternity leave are entitled to social welfare benefits so long as she has made the necessary PRSI contributions.
• These benefits amount to 80% of an employee’s gross income divided by the amount of weeks she works in a year subject to a minimum of €217.80 and a maximum of €262.
• 
  

If you feel that your maternity rights have not been upheld then please do not hesitate to contact me and arrange an appointment.

Laura Gillen

Brophy Solicitors

DOMESTIC VIOLENCE – MEN SUFFER TOO!

While it is often portrayed as such, domestic violence does not always involve a female victim and male abuser. A National Study of Domestic Abuse found that 213,000 Irish women and 88,000 Irish men have been severely abused by a partner at some point in their lives. Yet only 5 per cent of those men reported it to the Gardai - a much lower percentage than women (29%). 

It is not hard to understand why. The Domestic Violence Act, 1996, is ‘gender-neutral’ in that it is legislation there to protect anybody affected by abuse; spouse, partner, man or woman. The reality is very different. For a long time domestic abuse was as a gender issue. In the patriarchal society of times gone by, men were the heads of the household and women the subordinates. Men were therefore the usual perpetrators of abuse when it happened. That much is fact. But times have changed. And so must our response to this issue. 

Domestic violence is no longer a cross only women bear. One in six men will be severely abused by their partners at some point in their lives! That is a shocking statistic. And we’re only talking here about severe abuse! Though issues like stigma and shame play a big role in why men are reluctant to report cases of domestic abuse - the worry that they’d be seen as ‘less of a man’ can be a huge obstacle in accessing support. 

Worry about child custody is another common reason why men may choose to ‘stick with it’ rather than leave their abusive relationship behind. If they leave the family home, such is the unequal state of family law in Ireland, there is no guarantee that these fathers will be permitted regular contact with their kids, never mind custody or joint custody. 

For unmarried fathers, the position is even worse. There are, however, things that can be done that afford fathers – married or not - some rights such as applications for guardianship, custody or access. For men who have suffered any type of domestic abuse there are also remedies available to them - barring, protection and safety orders for instance. 

Male domestic abuse is on the rise and in the first instance the extent to which it exists needs to be recognised

Kevin Brophy,
Brophy Solcitors.

A SHORT GUIDE TO TERMINATION OF A RESIDENTIAL TENANCY

We dealt with a query this week in relation to the termination of a residential tenancy in circumstances where the landlord wants to sell the property that is being rented. The landlord was seeking our advice on how to ensure the termination was in compliance with the relevant legislation so as to avoid any dispute with the tenants. 

Landlords should be mindful that once a tenancy has lasted for over six months, landlords have specific obligations to tenants should they wish to terminate the tenancy. These obligations are prescribed in the Residential Tenancies Act 2004. There is a helpful guide to termination of tenancies on the website of the Private Residential Tenancies Board. 

It is essential to note that a landlord cannot simply terminate a tenancy that has lasted six months or more without a legitimate reason. The main grounds for termination by a landlord are set out in Section 34 of the Act. These include termination on the basis of the landlord’s intention to sell their full interest in the property within three months of the termination of the tenancy. 

It is essential that any landlord seeking to terminate a tenancy on this basis or any other basis covered by the legislation is very careful to serve a proper notice of termination. Any notice must be in compliance with Section 62 of the legislation and must be: in writing, signed by the landlord or their authorised agent, specify the date of service on it, state the reason for termination, specify the termination date and provide the tenant with the whole of 24 hours of the termination date to vacate possession, and state that any issue as to the validity of the notice or right of the landlord to terminate must be referred to the PRTB within 28 days of the date of receipt. 

Disputes over the validity of a notice of termination frequently come before the PRTB incurring costs and inconvenience to both landlords and tenants. It is essential that any landlord of a residential tenancy carefully consider the grounds of termination and the form to avoid any subsequent dispute.

Rebecca Keatinge, 

Brophy Solicitors

RECEIVERSHIP PROPERTIES – “BUYER BEWARE”

Over the past year I have found a huge increase in the number of properties being sold through property receivers. A property receiver is a receiver appointed by a bank over a property, rather than a business, where the mortgage has gone into default. Although appointed by the bank, a receiver acts as an agent for the distressed borrower and he/she will have very little knowledge about the property. A property receiver is not required to be licensed and accountants and chartered surveyors are increasingly appointed in this capacity in Ireland. With the introduction of this new type of sale, the warning Caveat Emptor or "Buyer Beware" has never been more important.

Once appointed, the receiver takes possession of the charged property and the property is usually put on the market and sold, most commonly through auction. The auctioneers/estate agents will have the contracts for sale and copy title documentation available online prior to the auction for viewing by prospective purchasers. 

The special conditions attaching to a receiver contract for sale are extremely onerous and burdensome on the purchaser and it is imperative that perspective purchasers obtain legal advice before bidding at auction. It is also highly advisable to have the property surveyed by a suitable qualified surveyor/engineer to ensure that the property is structurally sound, that there are no issues with boundaries and that there are no third party rights e.g. ensuring that there are no rights of way over the land. It is also essential to take steps to satisfy yourself that the property is in compliance with the Planning Acts and Building Regulations and I would always advise clients to carry out a Planning Search against the property prior to bidding at auction to ensure that no notices have been served by the local authority. 

Most receiver contracts will contain many pages of special conditions, which would not be found in a standard contract for sale, which exclude many of the warranties and representations that a purchaser would generally expect to receive when buying a property.

However, a receiver contract will usually specifically exclude these warranties and the onus is put on the purchaser to ensure that he/she has taken all necessary steps to ensure that the property is in order and has planning permission and has been built in substantial compliance with the Planning Acts and Building Regulations. 

If the purchase is being funded by way of a mortgage, your lending institution must be notified that the property is being sold through a receiver and your lending institution will also have to confirm its agreement to the very onerous provisions contained in the receiver contract before the contract is signed.

Extra caution should be taken when considering purchasing a receiver property. “Buyer beware” has never applied more. Whilst receiver properties can certainly be snapped up for bargain prices, the risks that apply to such sales should also be borne in mind and legal advice obtained in advance of bidding at auction. 

For further information please contact Catriona Sharkey at Catriona[at]brophysolicitors.ie

Catriona Sharkey

Brophy Solicitors

What rights do I have under Data Protection legislation?

The Data Protection Acts (1988 and 2003) constitute very useful legislation that we frequently rely on in order to obtain full records on behalf of our clients particularly from private bodies where the Freedom of Information legislation may not apply. It is particularly useful in employment disputes. 

When personal details of an individual are given to an organisation, company or an individual, it is their duty to keep those details private and safe. This process is known as data protection. Organisations, companies or individuals who control these contents are known as ‘data controllers’.

The right to data protection applies when your details are held on a computer, in paper records or any other manual form as part of a filing system or is made up of photographs or video recordings of your image or recordings of your voice. Data protection requires that the information stored about an individual by a person or organisation be factually correct, only available to those who should have it and used only for stated purposes.

A person has a range of rights in relation to their information including:

• The right to have your details used in line with data protection regulations

• The right to information about your personal details

• The right to access your personal details

• The right to know if your personal details are being held

• The right to change or remove your details

• The right to prevent use of your personal details

• The right to remove your details from a direct marketing list

• The right to object

• The right to freedom from automated decision making

• The right to refuse direct marketing calls and mail

The right on which we most frequently rely is the right of an individual to obtain a copy of all personal information held on them by a ‘data controller’. Such a request must be made in writing and the ‘data controller’ is obliged to reply within 40 days. 

We recommend that any request made is clear and concise and makes clear that you require all information held, be it in paper or electronic form. It is also advisable to request the way in which the data is accessed when processing your request be explained to you, and that the data be returned to you in an indexed format, so each document is clearly identifiable. 

If the ‘data controller’ fails to comply with the legislation, a complaint can be made to the Office of the Data Protection Commissioner. The Office of the Data Protection Commissioner has extensive guidance and information on their website. 

Rebecca Keatinge, 

Brophy Solicitors

THEY SAID I DON’T NEED A SOLICITOR!

All too often clients involved in personal injury claims seek urgent legal assistance in relation to their claims. When I ask why they left it so late to come to a solicitor the answer is all too familiar – “they said I don’t need a solicitor”. Oftentimes clients feel that they are put under pressure to accept a fast settlement offer from an insurance company to avoid the “huge” legal fees if they involve the solicitors!

Solicitors, like myself, who specialise in personal injury are well placed to advise you if a settlement offer is fair and to let you know what options are available to you if it isn’t. Your solicitor represents your interests and will make every effort to get the best possible outcome for your case. 

In Ireland the majority of claims must now be taken to the Injuries Board. The most common pitfalls encountered in this process are as follows:- 

- Failing to submit the claim within the timeframe allowed

- Failing to submit sufficient detail on the claim form

- Sending in a report from a consultant or GP that is not up-to date or fails to address your injuries and how they affect you.

- Accepting the Injuries Board claim only to realise your injuries did not improve as had anticipated by your doctors report

- Submitting documentation that may be considered misleading resulting in your claim being dismissed and even criminal prosecution.

This is just a small number of common pitfalls. Sometimes it may not always be necessary to instruct a solicitor however more often than not it is in your best interests to proceed with an experienced solicitor.

If you have been involved in a car accident, accident at work or slipped, tripped and fell through no fault of your own, then please do not hesitate to contact me at laura@brophysolicitors.ie

Laura Gillen

Brophy Solicitors

EARLY SETTLEMENT OF PERSONAL INJURY CASE BENEFITS EVERYONE

We settled a very substantial personal injury claim last week. Our case was in the very early stages and we had only very recently submitted an application to the Injuries Board on behalf of our client. The Injuries Board had not yet commenced their assessment of the claim and we were a long way off issuing any formal legal proceedings. The insurance company however proposed a settlement meeting and we attended with our client. We negotiated a substantial settlement for our client to compensate him for the damage arising from the incident.

People often believe that it is in a solicitor’s interest to allow cases proceed to full hearing for costs reasons. That is not our approach. In our view, the best way for personal injury cases to settle is for them to settle quickly, provided the client’s injuries have settled, the sum on offer is reasonable and the client is happy with the sum. Early resolution is good for the client because it means that this legal issue is resolved without lengthy delays and considerable uncertainty. Early resolution is good for the solicitor because it means that a solicitor gets a fair fee for the work completed in a relatively short period. 

Our client is very pleased to have this matter behind him and is also relieved to be able to move on with his life having been substantially compensated for the injury he suffered.

Rebecca Keatinge

Brophy Solicitors