Category

News

Solicitors granted title ‘senior counsel’ for the first time

By | News

Seventeen solicitors have become the first in the profession in Ireland to be granted the title of senior counsel.

The development is a significant one in Irish legal history as until recently only barristers could obtain the prestigious title.

Among those granted “patents of precedence” by the Government were criminal defence solicitors Michael Staines and Dara Robinson, civil and criminal practitioner James MacGuill and commercial litigation solicitor Liam Kennedy.

The 17 also include insolvency practitioner Bill Holohan, personal injury solicitor Damien Tansey and medical negligence solicitor Roger Murray.

The term senior counsel can only be used by practitioners who obtain a patent from the Government.

These recognise competence, probity and independence, and either advocacy skills, expertise in specialist litigation or specialist knowledge of an area of the law.

The system of awarding patents dates back to the 1700s. Barristers who become senior counsel get called to the inner bar and can earn higher fees.

Solicitors who become senior counsel will remain solicitors. It remains to be seen whether the change will result in more advocacy by solicitors in court and what impact it will have on their earning potential.

The change to allow solicitors to apply to become senior counsel was introduced in the Legal Services Regulation Act in 2015, but it was this year before solicitors could apply.

Under the Act, a committee chaired by the Chief Justice makes recommendations to the Government on who to grant patents to. It is understood around 70 solicitors applied.

Irish Independent

Residents block new hotel in Temple Bar over superpub fears

By | News

Residents of Temple Bar in Dublin have blocked the development of a new boutique hotel in the city’s tourist district which they feared would lead to the creation of another superpub in the area.

An Bord Pleanála has upheld an appeal by the Temple Bar Residents group against the decision of Dublin City Council to grant planning permission for a 12-bedroom hotel at the corner of Merchant’s Arch and Temple Bar Square.

The project was promoted by businesswoman, Sandra Doone, whose husband, Thomas, owns the adjoining Merchant’s Arch pub.

The development would have required the demolition of an existing two storey building, which houses the Irish Pub Shop and several other small commercial units, and the construction of a five-storey building with a retail unit on the ground floor and basement with the hotel on the four upper floors.

However, An Bord Pleanála ruled that the proposed development on grounds of its height relative to surrounding buildings would constitute overdevelopment of the site.

‘Out of character’
The board concluded it would be “out of character with the pattern of development in the vicinity” and would not integrate well into Temple Bar Square because of its height.

“The subject plot is insufficiently wide to accommodate a building greater than three storeys,” the board said.

It said the site was not a traditional corner plot where a higher building could create a landmark feature, while the proposed design would have created a vista from the Central Bank down Crown Alley which would be “visually discordant”.

In addition, the board said the plans for a single large retail unit at ground floor level to replace a number of smaller shops on Merchant’s Arch would have a detrimental impact on the vibrancy of the area due to the loss of small-scale commercial units which give Temple Bar its character.

Ms Doone had claimed the existing, under-utilised building was in poor condition and in need of significant refurbishment, while the proposed hotel would “contribute positively to Temple Bar Square and surrounding environment of the city”.

She said a use for the building had to be found after An Bord Pleanála had refused planning permission in 2018 for plans which would have made its first floor an extension of the Merchant’s Arch pub.

Ms Doone claimed she should be commended rather than vilified for opting for a retail use.

However, Temple Bar Residents said the proposed development was a substitute for the previous attempt to extend the Merchant’s Arch pub which it claimed would have created a “superpub”.

The group said the contention by Ms Noone that the existing building had no architectural merit, given its links to the other application, was “incredible” and “glib”.

The group’s chairperson, Frank McDonald, claimed the project was “a Trojan horse for the establishment in time of a fully licensed restaurant” which was only one step away from converting the entire area into a pub.

He also criticised Dublin City Council for failing to recognise Merchant’s Arch’s rich urban history and the “souk of sorts” in the laneway.

‘Like a sore thumb’
Mr McDonald said the proposed new building would “stick out like a sore thumb” in Temple Bar Square.

Residents from the nearby Crampton Buildings claimed the proposed taller structure would block the sunlight to their windows and balconies as well as causing serious disruption during the construction phase.

An Taisce also opposed the proposed development claiming the demolition of the building could not be justified, while the area was already saturated with guest accommodation.

The heritage group said allowing the hotel would create a strong impetus to look for a licensed use of the building again in the future when there was already an overconcentration of pubs in Temple Bar.

An inspector with An Bord Pleanála said the streetscape of the lane would be “significantly negatively changed” by the proposed development which was “strikingly at odds” with other buildings in the vicinity.

irishtimes.com

Judge rejects man’s challenge to loss of residency over ‘marriage of convenience’

By | News

Nigerian had fraudulently applied in March 2015 for a second residence card

A Nigerian man has lost his High Court challenge to a decision revoking his residency here on foot of a finding his marriage to a Dutch national was a marriage of convenience.

The man fraudulently applied in March 2015 for a second residence card based on the marriage when the Dutch woman, whom he married in 2009, had left the State no later than early 2014, though there was evidence suggesting she left earlier than that, Mr Justice Max Barrett said.

The woman was a named sponsor for several EU residence card applications in the United Kingdom for another Nigerian national on dates in 2010 and 2016, he observed.

The judge, for reasons including the man had repeatedly behaved falsely towards the Minister for Justice over a protracted period and never expressed remorse for that when caught out, rejected his judicial review challenge to the Minister’s July 2018 revocation of his residence.

In his recently published judgment, the judge said the man married the woman in May 2009 after coming here without permission in late 2008. The man appeared not to know her surname when it came to his court documents, getting it wrong until the Minister’s side got it right after which he used her correct surname, the judge observed.

In November 2009, he got his first residence card on the basis his wife was exercising her free movement rights here. In March 2015, he got a second residence card after claiming she was still exercising her free movement rights here when she had left no later than early 2014.

That application was fraudulent and in subversion of the law of Ireland and the EU, the judge said. Because the woman had left Ireland, the man had no derivative rights by reason of her exercise of free movement rights here.

In June 2018, the Minister notified the man he considered his marriage was one of convenience and said the woman had been the named sponsor for residence applications in the UK for another Nigerian national at the same time as being the basis for the man’s application.

The clear inference was that the woman was in some form of relationship with the second Nigerian national, the judge said.

The UK applications were also based on her residence in the UK between 2010 and 2016 when this applicant claimed he was living with her here until early 2014. Having regard to all these matters, the Minister in late July 2018 revoked the applicant’s second residence card.

The judge rejected arguments the man was entitled to succeed on the basis the Minister had applied an incorrect burden of proof or had inadequate evidence for his decision.

The man had not secured leave for judicial review on the basis of advancing incorrect burden of proof arguments as that issue was never raised before the judge who granted leave, he said.

He also found there was “ample” evidence before the Minister to show the man’s credibility and the reliability of the documents provided by him was “suspect”.

The man had failed to explain how and why he came to play “fast and loose” over a protracted period with the immigration/EU Treaty rights processes, he said. All of these matters, and the man’s failure to dispel concerns raised by the Minister with him, offered a “more than sufficient” basis for the Minister’s decision, he ruled.

irishtimes.com

€32m debts written off by court in three days

By | News

More than €32m in personal debt has been written off this week under insolvency arrangements approved by the High Court.

The huge sum relates to six cases dealt with between Monday and Wednesday.

The largest write-off – €15.2m – came with the approval of a personal insolvency arrangement for former Pierse Construction director Michael O’Reilly.

The company was one of the country’s largest building firms before going into examinership and then liquidation after the property market crashed a decade ago.

This week’s cases highlight the increasing use of legislation introduced in 2013 aimed at allowing insolvent debtors keep their family homes and get protection from creditors.

Already this year there was a record €60m debt write-off approved for Enda Patrick Whelan, an Ennis-based former quarry operator.

The arrangement for Mr O’Reilly, of Newtown, Celbridge, Co Kildare, continues the trend of multi-million euro write-offs.

It was devised by personal insolvency practitioner Alan McGee and approved on Monday by Mr Justice Mark Sanfey.   

The court heard Mr O’Reilly invested heavily in Pierse Construction and other property ventures. But all of the investments were lost in the recession and he ended up with debts of €15.8m.

Mr O’Reilly’s largest creditors were Everyday Finance DAC, which was owed more than €8.9m, and Danske Bank, which was owed €4.8m.

Unlike other recent arrangements, Mr O’Reilly will no longer own his family home.

He found a third party to purchase it at market value and then rent it back to him and his wife Fionnuala. It was one of three properties now worth a combined €690,000, on which €2m in mortgage debt was outstanding. All have been voluntarily sold.

A feature of some of the cases this week was the poor return vulture funds recouped on bad debts.

In one case dealt with yesterday, Ennis Property Management, a vulture fund affiliate of global investment bank Goldman Sachs, will get just €182 from two sisters-in-law who had total debts of €8m.

The case involved the approval of arrangements for Una and Margaret Kinsella, both from Ballybritt, Roscrea, Co Tipperary.

Una Kinsella had debts of approximately €3.8m, while Margaret Kinsella owed around €4.2m. The vast majority of these debts have now been written off.

They will also keep their family homes under restructured mortgages.

Each will have to make a lump sum payment of just €100 towards their debts.

The debts arose from personal guarantees for loans used to fund a business run by their husbands.

The arrangements were also put together by Mr McGee.

His barrister Keith Farry told the court the arrangements were more advantageous to creditors than if the debtors were made bankrupt.

Irish Independent

Bank admits ‘catastrophic error’ cost customer her family home

By | News

A woman lost her family home and was adjudicated a bankrupt after Bank of Ireland (BoI) charged her more than twice what she should have been paying on her mortgage, the High Court heard.

Deirdre Dennis said she was left financially crippled and personally devastated by the level of overcharging on her monthly repayments, between June 2012 and December 2017, to BoI.

She is now asking the court to annul the bankruptcy petition she made in October 2017 in an effort to deal with what she believed were her debts.

Her counsel Eoin McGonigal SC said while BoI admitted a “catastrophic error” in her case, it came after she had exited bankruptcy in October 2018, and after her former family home at Seaview Terrace, Killala, Co Mayo, had been sold by the bank.

In February 2019, counsel said, BoI wrote to Ms Dennis after it had completed a review of her mortgage under their Tracker Mortgage Examination. In its correspondence BoI accepted, acknowledged and unreservedly apologised for failing to provide her with a tracker mortgage at a time when she was entitled to one.

BoI said she was entitled to compensation, redress and a refund of interest charged and accepted the bank’s failure was a factor in her losing her home.

It also withdrew its claim in her bankruptcy of amounts totalling €115,000.

Ms Dennis has applied to the High Court to have her bankruptcy annulled.

Counsel said when seeking to be adjudicated a bankrupt she believed she owed BoI some €171,000 on foot of loans taken with the bank. Her then home was valued at €73,000.

She also had additional debts of €66,000 owed to Revenue and another financial institution.

She claims that had she all the relevant information from BoI in October 2017 she would not have sought to be adjudicated a bankrupt.

The court was told the bankruptcy trustee was not opposing the annulment application.

BoI did not wish to make any submissions to the court, Ms Justice Teresa Pilkington was told.

In a sworn statement, Ms Dennis said she spent years “fighting to keep my head above water”.

Despite her struggles, including her business failing in 2008, she always tried to maintain her mortgage payments as best she could.

She said she pleaded with BoI to apply a common sense approach to the level of her repayments and made many personal sacrifices.

In 2014 she said she had to stop making repayments and left the property which was in negative equity. In 2015 BoI sought an order for repossession of her family home so it could sell the property, which she consented to.

In early 2019 BoI admitted it had overcharged her.

She now rents a property at Killala Road, Ballina, Co Mayo, which she says she ended up paying twice as much for than she been paying the mortgage for the previous home she was “forced” to leave.

She could not understand why her account was not examined sooner, or why BoI continued to pursue possession proceedings against her in 2015 when it should have known her loan account would come under examination.

Ms Justice Pilkington, after hearing legal submissions and noting it was “a very unusual case”, reserved her decision.

Irish Independent

Man ordered to pay ex-lover €15,000 over credit union loan for his house

By | News

A man has been ordered to pay his former lover €15,000 plus costs arising out of a dispute over the repayment of a credit union loan.

Galway Circuit Civil Court heard Hanna Kelly, of Ardrahan, Co Galway, took out a loan to finish and furnish her ex-partner’s home, in the belief they were engaged.

Ms Kelly, a mother of five, also told Judge Raymond Groarke her ex-partner Michéal Geraghty, of Knocknamanagh, Craughwell, Co Galway, had promised to add her name to the title deeds of his house.

Mr Geraghty, a father of six, denied both claims and said he never asked or intended to marry Ms Kelly, a former fitness instructor, as he was already married.

The court heard the former couple had an “on again, off again” relationship beginning in 2004 and ending via text message in October 2012.

During this period, they lived together intermittently in houses in Gort, Ardrahan and Craughwell.

When pressed by James Fahy BL, counsel for Mr Geraghty, for details on “where, when or how” they got engaged, Ms Kelly said she couldn’t recall.

In her evidence, she said Mr Geraghty proposed to her several months after they got together and they exchanged Claddagh rings as a sign of their commitment.

However, Mr Geraghty said the rings were exchanged in the context of a Christmas present and he never wore his.

He also said he was still legally married at the time.

Mr Geraghty said that following his legal separation in 2008, he decided it was necessary to build a home at a site he owned beside his former marital home, in order to maintain access to his daughter, who has special needs.

However, Ms Kelly claimed they had intended to build the house together and cited this as the reason she secured a credit union loan of €26,000.

She told the court the loan was in her name only, as Mr Geraghty believed he would not get approval as he was not a member of the credit union and had no loan history.

The loan was taken out in July 2008 and repayments of €94 per week were agreed over a period of eight years.

The money was used to complete the build which had been largely undertaken by Mr Geraghty who is a builder by trade.

However, the court heard the couple’s relationship broke down multiple times over the next few years and they only lived together in the house for short periods of time.

Ms Kelly provided the court with 118 repayment receipts totalling €12,440.

She claimed she personally paid more of the debt, but couldn’t locate the receipts.

She also claimed she carried out tiling, painting and various groundworks, which together with the loan amounted to €17,446.

Following one of their break-ups, Ms Kelly told the court she contacted Mr Geraghty’s solicitor and found out she was not named on the title deeds, and she felt let down.

Mr Geraghty claimed he repaid all but €890 of the loan which, when penalties were added, amounted to €40,984.

He said he would give money to Ms Kelly weekly to repay the loan and that it was always his debt, not hers.

When their relationship ended in 2012, Ms Kelly stopped repaying the loan and Mr Geraghty took over the full payment which was settled in May 2018. Finding in favour of Ms Kelly, Judge Groarke ordered Mr Geraghty to pay €15,000 plus costs of €2,500.

Irish Independent

Chief Justice: EU measures could have unintended consequences for Ireland

By | News

The country’s top judge has warned that Ireland needs to ensure “a common law voice” remains heard in the formulation of EU legislation in the post-Brexit era.

The Chief Justice, Mr Justice Frank Clarke, said Ireland was now the only fully common law country in the EU following the UK’s exit, while the two member states with a mixed common and civil law system – Cyprus and Malta – are considerably smaller jurisdictions.

In a keynote speech at Trinity College Dublin on Tuesday night on the future of the common law system in Ireland post-Brexit, Mr Justice Clarke said fitting EU measures into a common law system can sometimes be difficult.

“One of the real challenges for the common law in Ireland post-Brexit is that a large voice at European legislative and judicial tables will no longer be there,” he remarked.

“Putting forward the case for tweaking measures to make it easier for them to fit into a common law system is a role which will now fall largely on Ireland although we will, doubtless, have some support from our colleagues in Cyprus and Malta.”

Mr Justice Clarke said he thought those challenges posed a risk for the common law in Ireland.

While he accepted there was no widespread demand from within the EU or its institutions to attempt to change Ireland’s legal system against our will, the Chief Justice said his main concern was that measures adopted by the EU could have unintended consequences.

Having a common law voice presence at the EU table was important to minimise the risk of EU legislation causing such unanticipated problems when transposed into the law of a common law jurisdiction, the Chief Justice said.

He noted quite considerable difficulties had been encountered in the past in attempting to adapt the procedures in common law countries to certain types of European legislation which he suspected would continue in the future.

Mr Justice Clarke said unintended consequences could potentially make it more difficult for Ireland to maintain its common law system by accident rather than by design.

While the problems were not insurmountable, Mr Justice Clarke said the issue would require “significant vigilance.”.

However, he said addressing the issue would require greater resources being put into discussions at European level on proposed legislation.

In the past, Mr Justice Clarke said there were many occasions where Ireland had been content to allow UK officials to take the lead role on common law issues unless there was a specific Irish angle to a question.

He said it had to be acknowledged that the UK, as a significant player within the EU, had made a material difference on the development of EU legislation.

The Chief Justice claimed there would also be a need for Ireland to intervene more in proceedings before the Court of Justice of the European Union where there was a common law angle to be addressed.

irishtimes.com

Boy bitten in face by dog secures €78,500 in High Court settlement

By | News

A young boy who was bitten on the face by a dog has secured a €78,519 settlement of his High Court action.

Mr Justice Garrett Simons said the settlement for James Holden over the “unfortunate incident” near his home was “generous” and he was happy to approve it.

Treatment for the boy has gone well and the incident did not hugely disrupt his life.

James has been left with a “relatively minor” scar arising from the incident which had also had a psychological impact in that it made him understandably wary of dogs, the judge added.

Through his mother Melissa Holden, James sued over the incident which occurred on July 3, 2018, when the boy, then aged 10, bent down to pet a dog while playing with friends near his home at The Grove, Pheasant’s Run, Clonee, Dublin.

It was claimed the dog suddenly and without warning leaped up and bit the boy on the face.

James suffered cuts to his right forehead and temple areas.

While his wounds were described as having healed well, he has been left with a scar on the right temple area measuring some 4.5cm. 

Liability was admitted by the owners of the property where the incident occurred.

When the case came before Mr Justice Simons yesterday, John Nolan BL, for James, said he was recommending approval for a settlement offer of €78,519, comprising €75,000 general damages and €3,519 special damages.

Irish Independent

Refund of €1,000 after ‘very poor’ video of wedding

By | News

A judge ordered a wedding videographer to give a full refund of €1,000 to a recently married couple after they told a court the quality of their wedding video was “very poor”.

At Ennis District Court, Judge Patrick Durcan issued a decree in favour of John and Sabrina McDonnell against videographer Niall Coley of Old Gort Road, Ennis, Co Clare.

The couple were married and had their wedding reception at the popular Armada Hotel on Co Clare’s Atlantic coast.

However, the McDonnells were disappointed at the poor quality of their wedding video and embarked on legal action to get redress as a “last resort”.

The McDonnells also failed to obtain the raw video footage of their wedding day from Mr Coley, of Dream Day Wedding Films, so they could employ someone else to edit the video.

Speaking after court, Ms McDonnell said she wanted to show her future children “the video of mam and dad walking down the aisle… which was the whole purpose of going to the expense of the videographer”.

They had opted for a ‘silver’ wedding video package, which involved Mr Coley and a second camera person.

However, the statement of claim read out by the judge at the Small Claims Court said there was no second cameraman on the day.      

Mr McDonnell added: “On the day of the wedding, Mr Coley discharged his duties in terms of being present and filming the day’s events, but when it was time to provide us with the video he missed deadlines.”

The wedding took place on June 2 and they didn’t receive their wedding video until August 18. Mr McDonnell’s statement went on to say “the quality of the content was very poor and was no way in keeping with the quality of the work that his website testimonials had indicated”.

It added: “We were willing to give Mr Coley the benefit of the doubt until Sabrina had come across a wedding page online where numerous different people had given their accounts and their poor experience with Mr Coley.”

Judge Durcan told Mr McDonnell he would give him a decree for the full amount of €1,000 and noted that Mr Coley had not shown up in court for the case.

Mr McDonnell told the judge: “For us, the money is insignificant. The most important thing is getting the raw footage from the day which is quite important to us.”

In reply, Judge Durcan said: “We can’t deal with that – you are doing very well here today, so you are. My advice is this: weddings aren’t made on the day, they are made in the future. Get ahead, enjoy life together and make the future your business.”

Irish Independent

Dublin City Council take legal action over David Attenborough street mural

By | News

DUBLIN City Council have taken legal action over two prominent street art murals – including one celebrating the life of David Attenborough.

The murals, by artist collective Subset, were allegedly allowed by residents, however, they did not have permission of the city’s planning department which issued warnings and enforcement notices to have the paintings removed.

The council’s prosecution came before Judge Anthony Halpin at Dublin District Court today. It was adjourned until March 24 next to set a hearing date and for compliance with an order for disclosure of evidence to the defence.

The Attenborough mural, which was painted last year on the side of a property in Portobello, was unveiled on the BBC documentary maker’s 93rd birthday.

It was on the gable wall of a house on South Circular Road facing onto Longwood Avenue, in Dublin 8.

The City Council had ordered for it to be removed because no planning permission was obtained for the “unauthorised development”.

It also made the same order and commenced a prosecution in relation to another Subset street art mural, dubbed Horseboy, located just off Church Street, in Dublin 7.

The original photo of Horseboy was taken on Smithfield Square by Australian Photographer James Horan and Subset recreated the picture on the gable end of a rented property. A petition calling for it be allowed stay attracted over 2,500 signatures in two days.  

In each case council planning enforcement officers who examined the artwork held they were developments that were not exempt from requiring planning permission.

This resulted in the enforcement notices – under Section 154 of the Planning and Developments Acts 2000 – for the removal of the artwork.

Subset have had a number of artworks removed from Dublin city walls, including the Stormzy mural in 2017.

Irish Independent