NO MORE GIFTS

At the moment if a parent wants to make a gift to a child or provide for them if they are in difficulties, they can do so because the threshold before tax has to be paid is at the moment €224,000. 

For instance where a couple are engaged and they are going to a buy a house together, it’s not unusual for parents to help with the funding of a deposit on a new house or to help pay off student loans or provide other financial help. 

Although we are told that government finances are better than they have been for very many years, there is a provision in the current Finance Bill before the Dail which would limit the exemption from gift or inheritance tax to people under the age of 18 or 25 if they are in full time education. 

What this means is that if your son or daughter is getting married and you give them €50,000 to help towards buying a house or give them a lump sum to cover anything else then tax would have to be paid at the rate of 33%. If a parent decides to leave a property to a child or, heaven forbid, buy a property for a child, then the child may have to sell the property in order to pay the 33% tax on it. 

This is a fundamental change in the tax system as it applies to families and quite extraordinarily it is receiving almost no attention in the media. The provision however is still contained in a Bill and has not yet been enacted.

Kevin Brophy

Brophy Solicitors

EMPLOYMENT – HOLIDAYS ON TOP OF HOLIDAYS

If you only have two weeks of your annual leave left and you go on a two week holiday to the sun and you get food poisoning while on holiday and you are in bed for three or four days, once you have the relevant medical certificates, you are entitled to insist that your employer give you a further three or four days annual leave in lieu.

The entitlement to paid annual leave is set out in the Working Time Directive (2003/88/ECJ).

The thinking behind this is that employees deserve annual leave and the purpose of annual leave is to enable the employee have some time for relaxation and leisure. If he spent some or all of that time ill then he or she should not lose out as a result and the European Court of Justice decided that they are entitled to further leave to make up for the time lost while sick on holidays. This decision was made some years ago. Although it does not appear to be widely known, this right already existed in Irish law.

If therefore you are sick while on annual leave, get a medical certificate to prove that you were ill and the length of time you were ill, you can then insist that your employer give you a further period of annual leave to make up the time lost.

Kevin Brophy

Brophy Solicitors

THE ENGAGEMENT IS OFF – CAN I SUE?

The general rule in law is that if you have an agreement with somebody and that other person breaks that agreement and you suffer a loss as a result, you can sue that person for breach of contract. 

That is not however the position as far as engagements are concerned. 

If I employ a builder to build an extension to my house and he takes my money but then refuses to do the work, I can sue him and a court will either force him to do the work or they will force him to return monies to me. That is not the case when it comes to broken contracts of engagement. A court will not force a couple to marry just because there was an agreement that they should marry. That would be against public policy and would not be in the common good. 

The position however is different in relation to property. 

If a friend gives an engagement gift to a couple and the marriage for some reason is called off, you can insist on your gift being returned to you. The same applies to the engagement ring. If for instance the groom to be buys an expensive engagement ring and books Ashford Castle for 200 guests, at great cost, he can at the very leakevinst insist on compensation. He can certainly insist on the ring being returned and he can be compensated for expense incurred in relation to the cancelled wedding. 

You have three years from the date of termination of the engagement to bring an action if you cannot settle matters between you.

Kevin Brophy

Brophy Solicitors

LAY LITIGANTS

I had a rare experience this week when I was sacked by a client who told me that they felt that they could look after their family law case better themselves. 

Over the years, I have dealt with many cases, normally family law cases where the other side were lay litigants. 

I have also been involved in many cases where lay litigants are assisted by “MacKenzie friends” or other supportive individuals. 

This generally happens where people become utterly frustrated with the legal system and perhaps with the legal profession and feel they can do a better job themselves. I have yet to come across a case where that was the correct decision to make. 

It takes almost 7 years to qualify as a solicitor. That is an awful lot of training. I wouldn’t dream of trolling the internet for cures for my son’s chest infection, I would bring him to a doctor or a hospital. Why then do so many clients, particularly in the area of family law feel that they can troll the internet and read reported law cases and feel that they are now sufficiently expert to run their own case. 

Every lawyer knows the sentence “if you act for yourself, you have a fool for a client”. The benefit of a having a solicitor you can trust is that you have somebody with many years of legal training, who can stand back and look at a situation from a legal perspective and give you independent expert advice. If your solicitor cannot do this then the answer is not to represent yourself but to find a solicitor, who can provide this service to you. 

Obviously there are cases where matters are entirely straightforward or consensual and it may not be necessary to go to the expense of hiring a solicitor but if a matter is contested or in any way difficult, then why on earth would you adopt a “do it yourself” approach. If your solicitor is hopeless, the answer is get another one, not do it yourself.

Kevin Brophy

Brophy Solicitors

SPRING LANE HALTING SITE

My client is an eloquent intelligent Traveller lady with seven children. She has the gross misfortune of living on Spring Lane Halting Site with her extended family. She has seven young children one whom has special needs. She lives in a 40 year old caravan (which was provided to her by St. Vincent De Paul).

She and her children live in two bedrooms. 

For 20 long years she has been complaining to the local authority about the conditions in which she is living. She has no facilities: no electricity, no running water, no hot water, nowhere to wash. She shares another family’s toilet facilities with 30 other adults and children. Despite living in these chaotic circumstances, her children are all attending school and incredibly are doing well. I have seen the holes in the floor of the caravan where the rats have knawed their way in. I have seen the windows that are covered in masking tape to try and prevent the rain getting in. 

She moved on to her present location 20 years ago when she started a family of her own. She could no longer share her parent’s caravan who were living on a bay nearby. She told the local authority that she needed her own bay and ever since then she has been dealing with local representatives, TDs, councillors and anybody else who would listen to her in an attempt to get a proper home and facilities for herself and her young family. 

What have the local authority done? Every year for the last 20 years, my client has believed that next year they would have to sort out this property because surely they would not allow young children to grow up in such dreadful circumstances. During those 20 years, the Council have done precisely nothing. Their argument is that she is a trespasser and even if she was assigned a halting site bay, which is effectively a piece concrete with a vandal proof shed where you wash and cook, they have no further responsibility. They argue that they do not have any obligation to provide living accommodation. Even the most basic rented apartment for a settled person must have hot and cold water, must have a separate room for use as a toilet with a washbasin and a fixed bath or shower with hot and cold water, must have fixed heating appliances in each room, must have facilities for cooking and access to a washing machine and a clothes dryer, must have fire blankets and smoke alarms and must have access to vermin proof and pest proof refuse storage facilities. Unless of course you are a Traveller with young children including special needs children. Then you are entitled to nothing.

Kevin Brophy

Brophy Solicitors

DELAY WITH COURT ORDERS

One of the great frustrations in a solicitor’s job is trying to get court orders and judgements. This is particularly relevant in the High Court. The position in the High Court is that if you wish to appeal a High Court decision to the Supreme Court, you must do so within 21 days of the order being perfected. 

The problem is that you could have a relatively straightforward case which ends in one day, say June 1st, but the judge decides to reserve his judgement. As in every other area of life, some judges are efficient but some are not. Some judges will have their reserved judgement ready in a couple of weeks but the unfortunate position is that you could be waiting over a year for other judges. Waiting for the judgement can be frustrating in the extreme but even when you get your judgement, you are still not ready to lodge an appeal if you wish to appeal. Once you get the judgement, the Order itself then has to be perfected and that process can take several months. This should not happen but it certainly does happen. 

I have recently received instructions in relation to a family law case where the judge at the end of the hearing gave a verbal decision, but said that he would set out his thinking in a written judgement and it took a full year for that judgement to come through and then took another six months to get the perfected order. This is particularly critical in the High Court because once your appeal is lodged, books of pleadings and a certificate of readiness has to be sent to the Supreme Court and only then does time start running in the Supreme Court and at the moment the delay bringing cases on for hearing is around four years. In this particular unfortunate lady’s case involving substantial matters of family law, there could be a delay of six extraordinary years before there is a final hearing and matters are brought to a close. 

I have taken over cases where the other side lodge an appeal from the Circuit to the High Court and the case sits in limbo because the appellant did not lodge a book of papers so that the case could appear in a list to fix a date for hearing. 

The unfortunate situation exists in Ireland that if somebody knows how the system works, they can delay bringing a case to a conclusion literally for years on end unless your solicitor is proactive and aggressively fights your corner. In many of these cases the only alternative is to make an absolute pest of yourself by ringing the relevant court registrar or bringing applications to court to make sure the other side lodge necessary papers. 

They say justice delayed is justice denied. All I can say is if your solicitor knows what is happening, there is always something you can do about it but if you do nothing, nothing happens.

Kevin Brophy,

Brophy Solicitors

IS YOUR SOLICITOR COMPETENT?

When you employ a solicitor, you are entitled to expect a reasonable standard of care. That standard is accepted to be the standard “expected of a reasonably competent solicitor”.

Your solicitor has to be open, frank and honest with you and to the best of his/her professional ability, must carry out your instructions.

It is not enough for a solicitor to say to you ‘I did the best I could for you’. On the other hand, it is not fair to expect that the solicitor should win the case no matter what the circumstances. However, if a client is expected to pay substantial fees then in return the client is entitled to expect a certain standard of expertise, professionalism and excellence.

Perhaps the biggest problem we experience in dealing with negligence cases against solicitors is where the solicitor is in an absolute state of panic as the case approaches a hearing. Many contested litigation cases can go on for years and it is the unfortunate position that in many cases the solicitor only really becomes heavily involved as the case is coming up to trial. The solicitor’s job is not simply to act as a go between for the solicitor and the barrister. His/her job is to assess the case and advise and bring it to the best conclusion possible for the client.

During the course of the case, you should receive letters referring to any potential weaknesses you have in your case. You should receive correspondence talking about what you need to do to win your case and what proofs, what documentation and what witnesses you will need to win your case. This is not just the barrister’s job, it is also the solicitor’s job and there are many cases where a solicitor will not employ a barrister and will simply run the case himself. In that case you are absolutely entitled to be told what the strengths and weaknesses of your case are.

You are entitled to complain and possibly claim against your solicitor if you believe that the case has been badly handled and if for instance critical witnesses necessary for a hearing have not been called or if evidence has been prepared too late in the day. I have come across cases where inspection of Discovery documents either did not take place at all or only took place at the very last minute when nothing could be done if any problems arose.

If you have a substantial legal action, you are probably going through one of the most stressful periods of your life. You should not be in a state of panic in the weeks or months leading up to a hearing. You should know where you stand. You should know the strengths and weaknesses of your case and you must have faith and trust in your solicitor. If you do not have confidence in your solicitor, you have a problem and you will be criticised if you have expressed a lack of confidence in your solicitor but continue to instruct your solicitor.

Always remember, you are the employer. You are paying the wages. You call the tune.

Kevin Brophy
Brophy Solicitors

FAMILY LAW - WHAT'S PARAMOUNT? THE CHILDREN OR THE LAWYER’S FEE?

Here's a dilemma.

Jim is 4 years into a bitter family law battle. He has paid over 70k to his solicitors. They now say they want another 50k despite the fact that he has been very unhappy with the service he has received over the past year in particular. He has about 10k and he says he intends to pay that and then represent himself if he has to. His solicitor won't budge. They want 50k.

The other side will not deal with Jim saying they can only deal with the solicitors on record for him. So he rings his solicitor and says will they come off record so the other side can deal with him direct and his fee to his solicitor will not continue to increase. The solicitor refuses. They will not give him his file and they will not assist him because they don't believe they will be paid if they do

The other side are aware of the position and not unexpectedly, are taking advantage. They have issued separate proceedings in the family law case, due to be heard next week.

Jim is at a loss. Contact with his children is at risk. Assets worth several hundred thousands are at risk. He is disputing the solicitors fees but knows that all he can do is refer the matter on to a court appointed accountant but that will take 6 months. Or complain to the Law Society and that would probably take 3 months.

D-day for him is next Tuesday. Tune in next week.

Kevin Brophy

Brophy Solicitors

FATHERS’ RIGHTS – SLOW BUT STEADY PROGRESS

The Civil Registration (Amendment) Bill, 2014 was published within the past few days and if it is ultimately passed, it will mean that the father’s name, even an unmarried father’s name, must appear on every child’s birth certificate.

It is however extraordinarily disappointing that there is still no progress being made on the right of every unmarried father to automatically be their son or daughter’s guardian. It is quite extraordinary that this continues to be an issue our government refuse to deal with.

Having said that, I suppose you can argue that slow progress is better than no progress.

 

Kevin Brophy

Brophy Solicitors

SECTION 47 REPORTS

Anybody who has children and has been involved in the family law proceedings will be familiar with reports prepared under section 47 of the Family Law Act, 1995. These reports are generally prepared by expert child psychologists and courts will feel themselves, if not bound by the findings in these reports, then they would regard them as extremely persuasive.

One of the problems with the reports is that solicitors are told that they can discuss the contents of the report with the client but they cannot give the report itself to the client. This creates huge difficulties because if I have a client and I am telling them that the recommendation is that they are to lose custody of their children and I can talk about the reasons but I cannot show them the report, invariably this will result in an exceptionally unhappy client. It can be particularly difficult where the report only becomes available within a few days of a hearing and there is no time to take full instructions or to raise any matters that might need to be raised with the child psychologist. 

Section 47(3) of the 1995 Act says “a copy of a report under subsection (1) shall be given to the parties to the proceedings concerned and (if he or she is not a party to the proceedings) to the person to whom it relates and may be received in evidence in the proceedings”.

A practice has developed in the Circuit Court whereby the solicitors for the parties can make an application to the judge to obtain a copy of the report and we then have the strange situation whereby the solicitor knows what is in the report but the client (who paid many thousands for the report) does not and cannot be given a copy of the report.

If a client has a solicitor who is not particularly familiar with family law practice and procedure, the solicitor might not even get this report until the morning of the hearing itself.

Given the critical importance of these section 47 reports, this is clearly exceptionally unsatisfactory. It would appear that the reasoning behind this is all part of the secrecy that pervades the entire family law process. Clients cannot be given copies of their own section 47 reports in case they hand over copies to journalists or other parties. This makes no sense. If a copy of the section 47 report is made available to an applicant and the applicant is told that they must not provide copies to any third parties then the court has a remedy if that order is broken. The Circuit and High Court hear cases on the basis that they wish to do whatever is in the best interest of the children and surely it is in the best interests of the children that comprehensive section 47 reports are made available to all parties well in advance of the hearing so that they can consider all issues arising – in the best interest of the children.

Kevin Brophy

Brophy Solicitors

MEN AND FAMILY LAW

The judge had to decide how much maintenance a mother and the father had to pay to look after their 7-year-old son. The mother earns €60,000 a year, the father earns €20,000 a year. The judge accepted that the earnings figures were correct. 

 

 

When all the evidence had concluded, the mother said could she say something about my client. The judge said she could. She then embarked on five minutes of what I could only describe as abuse of my client, who was totally taken aback at the comments that were being made about him. I interrupted her and asked the judge why this lady was being allowed to make these defamatory comments about my client when the case was over. The judge said that my client needed to know how his ex partner felt about him. I asked would my client be entitled to respond to the allegations and the judge said that would not be necessary. 

 

 

She then made an order that my client pay approximately 80% of the sum needed to maintain their son. When I subsequently complained to the judge about the manner in which the case had been dealt with, she invited my client to take the witness stand and answer any of the allegations being made against him. The offer was put to him in such a way that he had no choice but to give evidence, but the judge was clearly absolutely furious that her handling of the case was being questioned in this manner. 

 

 

I have said this before and I will say it again. Men and in particular unmarried fathers, do not get a fair deal when it comes to very many maintenance and matters relating to custody and access, particularly in the District Court. The lesson here is that if you are instructing a solicitor to deal with a District Court family law case, you must in my view instruct an experienced solicitor, who is prepared to stand up to the judge and tell the judge that he or she is not entitled to make certain orders if that is the case.

 

 

In conclusion, if you are bringing a family law case in the District Court, make sure:-

 

• You have a strong, fearless and experienced solicitor on your side.
• You have all details concerning your income listed in the District Court Statement of Means form.
• Be sure that evidence of income is vouched i.e. wage slips and P60s, mortgage statements etc.
• Make sure you get all of this information from the other side in advance of the hearing.

 

Finally, it is not critical that the judge likes you but it is critical that the judge does not dislike you. Do not argue with anybody while you are giving evidence. Always answer the question. Most important of all however, stand your ground.

OVERCHARGING BY SOLICITORS

A client can be in a very difficult position when they decide to leave their solicitor and instruct somebody new. The first solicitor is entitled to insist that his/her fees be paid in full before they release their file to the new solicitor. This can often create difficulties because the client generally will only leave the first solicitor because they are not happy with the service they have received and would probably not be happy to pay any fee they might feel is either excessive or unjustified.

Many people believe that solicitors are reluctant to sue their colleagues and that even if they are able to get another solicitor to consider taking an action against one of their colleagues, they would want to ensure that their full fees are paid to the other solicitor.

This is one of the reasons why you should obtain at the outset of the case a detailed breakdown as to the likely level of charges and to monitor this during the course of the case. If you feel that the costs being requested by your original solicitor are excessive, you have a number of remedies. You can report the matter to the Law Society, who will investigate allegations of overcharging. In certain cases you can have the matter dealt with by the process known as taxation of costs. You are entitled to a detailed breakdown of all the work completed on your behalf and how the solicitor arrived at the fee. The problem with all of this however is that this process takes time and you may not have that time. In our experience many clients feel they have no alternative but to pay the previous solicitor’s fees in full because otherwise they will not obtain a copy of their file. For this reason it absolutely makes sense that you insist from the outset that you get copies of all documents from your solicitor. Your file should be almost as substantial as the solicitor’s file when your relationship with that solicitor comes to an end.

We make it a practice to send our clients copies of all relevant correspondence and we urge them to bring their file with them to any meeting they have with us so that everybody is completely up to date in relation to the case and there are no misunderstandings.

Clients should always remember that solicitors are just like any other service provider. If they provide a shoddy service, they should not be paid, or should not be paid in full, for that shoddy service. Solicitors are providing a service just like a plumber or an electrician. In conclusion therefore you should always do the following:-

• Make sure you receive a comprehensive section 68 letter concerning the fees you are likely to have to pay to your solicitor when the case starts.
• Make sure that section 68 letter is updated as the case progresses and the issues become clearer.
• Make sure your solicitor agrees to send you copies of all relevant correspondence and documents concerning the case. Your file should be fairly close to the size of your solicitor’s file.
• When your solicitor requests fees, always ask for a written breakdown as to exactly what that the fee covers.
• If you are unhappy with the service you have received from your solicitor, you can have the matter dealt with by the Law Society or you can refuse to pay the fee until the matter is investigated.
• Always remember, YOU ARE THE BOSS. 

Kevin Brophy

Brophy Solicitors

DEFAMATION – QUALIFIED OR ABSOLUTE PRIVILEGE

You defame somebody if you make a false allegation about them and that allegation has been made known to third parties. There are however certain defences open to the person who made the defamatory statements. One of the defences is that of privilege.

Privilege can be absolute privilege, which generally refers to comments made in the Dail or Seanad or in a court of law.

In this post however I want to discuss the defence of qualified privilege. The defence of qualified privilege may apply where a statement is published to a person who had a legal, moral or social duty to receive the information and where the defendant reasonably believes this to be the case and that he had a corresponding duty to pass on this information. For instance, an employee can approach an employer and make an allegation that they saw somebody stealing company money. That allegation will be defamatory if it is not true but if the allegation was made in good faith then that person could rely on the defence of qualified privilege if it turns out that the allegation was untrue. In many cases however, that defence is lost where malice exists. If for instance the employee approached their employer and make an allegation that they saw somebody stealing company money when they absolutely knew that had not happened or that they knew there was an innocent explanation, then they will not be able to rely on the defence of qualified privilege. Malice defeats qualified privilege.

Newspapers and other organisations can also rely on the defence of “honest opinion”, however, it is not sufficient simply to say that I believe you are a thief if that honest opinion is not based on anything substantial. The honest belief has to be a reasonable belief.

A comprehensive list of statements that attract qualified privilege is set out in the Defamation Act of 2009, schedule 1 part 1 and part 2.

Kevin Brophy

Brophy Solicitors

DO I SUE MY SOLICITOR OR REPORT HIM TO THE LAW SOCIETY?

Kevin's Blog

Many people, who have problems with their solicitor feel that the Law Society could deal with any complaints and this might save them the expense of instructing another solicitor to deal with the matter.

The Law Society will look into complaints in relation to misconduct, overcharging and inadequate professional services.

In this article I only want to deal with the question of inadequate professional services. If you feel that your solicitor has mishandled a particular transaction and you have suffered a loss, the appropriate step to take is to seek independent legal advice and consider the possibility of suing your solicitor for negligence. If you report the matter to the Law Society, they will generally advise that they can only look into a matter if financial loss has not been caused. If they see that you have suffered a loss then they will undoubtedly suggest that you take advice from another solicitor. Even if they do look into it, the largest penalty they can impose is €3,000.

The general rule in negligence cases is that you must issue your proceedings within six years of the negligent act you are complaining about. I have seen a number of cases where the solicitor has continued to act for the injured party on the basis that “leave it with me, don’t worry about it, everything will be fine”. Time passes and then the six years has elapsed. In these circumstances, a strong argument can be made that the normal statutory six year period should be extended if the client felt that he was misled into continuing to stay with the solicitor and thus inadvertently allowed his/her claim to be statute barred. However, it’s best not to get into that situation as there is absolutely no guarantee that the relevant time limits would be extended.

If you have a problem with your solicitor and if you feel that he/she has acted in a negligent manner and you have suffered a loss as a result, you should immediately contact another solicitor to get a second opinion. It can be difficult to get another solicitor to sue a colleague, particularly outside the Dublin area, and if you have difficulty locating such a solicitor, you can contact the Law Society directly as they have a list of solicitors who are prepared to take on such actions, or you can contact ourselves. 

The bottom line however is that once you become aware that you either have a problem or you may have a problem with your solicitor, you should act without delay.

Kevin Brophy,

Brophy Solcitors

THE RIGHT TO BE FORGOTTEN

Mario Gonzales recently brought the Spanish government to the European Court of Justice arguing that data should be removed from Google if it was no longer accurate or relevant or it was excessive or inadequate. In his case, if you searched his name in Spain, an article would appear describing how he had to sell his house in order to deal with certain debts. The debt issue had long since been resolved but the article continued to appear.

Google vigorously contested this case because it could have very far reaching consequences. This applies to Google but also applies to any other “data controller”.

This was an extraordinary victory for the protection of personal data and certainly represents a blow to Google and other search engines. We are currently involved in a number of legal actions involving Google, YouTube, Facebook and other social media organisations where information has appeared that can be defamatory but it is certainly interesting to note that a private individual can now force these organisations to remove information about them where they can show that the information is no longer accurate or if it is entirely out of date and excessive and would appear to apply to photographs of, for instance, embarrassing teenage episodes or even insults on social media websites.

In this David v. Goliath battle, it looks like David is fighting back!

To learn more about the decision in this case, see our recent blog post here. 

Kevin Brophy,Brophy Solcitors

 

CAN YOU PREVENT A BANK REPOSSESSING YOUR INVESTMENT PROPERTY EVEN THOUGH YOU ARE IN DEFAULT?

A very interesting case was heard in the High Court recently. The case was Ulster Bank Ireland Limited v. Healy. It was a case where an accountant had borrowed money to buy a number of investment properties. The borrower subsequently defaulted on the loans and the bank sought to repossess the properties. 

Mr. Healy argued that as he had not purchased the property as part of his normal business, he should be treated as a consumer and not as a property investor. The relevance here is that if the court were to treat him as a consumer for the purposes of the Consumer Credit Act, 1995 then the bank may not be able to enforce their loan agreement with him. 

The case centred on the definition of the word ‘consumer’. The argument Mr. Healy made was that he was acting outside his normal business, trade or profession and therefore he should be treated as a consumer and not as a professional property investor. 

Mr. Healy made an application to issue judicial review proceedings and he was successful but the overall case has yet to be determined by the courts. The High Court stated at the initial hearing that they accepted that there was a possibility that Ulster Bank may have acted in contravention of the Consumer Credit Act when it gave a loan to Mr. Healy. They said that it could be argued that they should not have described him as a commercial borrower and therefore as a non-consumer, they should have given him the benefit of the relevant provisions of the Consumer Credit Act. The court accepted that this was a reasonable argument to make and that the bank may have been in breach of the relevant provisions of the Act, which could lead to his loan agreement being unenforceable or only being enforceable on terms the court considered reasonable and appropriate. 

No final decision has been made on this but it is certainly of great interest and there are any number of people in Ireland, who invested during the Celtic Tiger years and who were treated by the banks as commercial investors rather than consumers and it may well be that the banks breached their obligations under the Consumer Credit Act in so doing. 

This matter will be finally determined, probably before the end of the year and we will revisit this area once again at that time.

Kevin Brophy,

Brophy Solcitors

CAN YOUR DOG APPLY FOR A BARRING ORDER?

We often read in newspapers about terrible cases where animals have been mistreated. The general outcome is that the person who abused the animal will be fined or in extremely rare cases they might be sent to prison. 

I am of the view that at some point in the not too distant future, an abused animal will be able to sue its owner for the equivalent of a barring order. This may sound ridiculous and one of the reasons it may sound foolish is because an animal does not have legal personality and an animal cannot issue proceedings in its own name. That is the standard legal thinking. 

We have an amount of animal welfare law and there are numerous endangered species statutes but the fundamental legal status of non-humans has remained unchanged. The philosopher Jeremy Bentham said that the only arbiter of how we treat animals is not “can they reason” nor “can they talk” but “can they suffer”.

There is a famous English case called Somerset v. Stewart, which was decided in 1772 when the English High Court decided that a slave could bring a set of proceedings even though that slave at the time had the legal status of an animal i.e. he was a non-person. The argument is often made that animals cannot bring legal proceedings because they cannot personally appear in court and cannot explain themselves. Children however or persons on their behalf can bring proceedings. Mentally incapacitated adults can bring proceedings. There are any number of cases where non-humans have been held to be legal persons like ships, limited companies, partnerships and even states. 

A legal person does not have to be exactly the same thing as a human being. 

We hear of certain children who are born without complete brains. They can breathe and digest but they have no consciousness and no sentience. They have no feeling, no awareness whatsoever. Could you abuse that child and get away with it? Could you eat that child and get away with it? Of course not, but is having a human form the only sufficient condition for rights? Why is a human individual with no cognitive abilities whatsoever a legal person with rights, whereas cognitively complex beings such as chimpanzees or dolphins or whales have no rights at all? 

In my view when we are regarded as distant ancestors, people in the future will look back in horror at the manner in which we treated animals, even advanced animals with intelligence and the ability to feel pain and other sensory experiences. Animals deserve protection and they will only have legal protection when they are granted legal rights.

Kevin Brophy,

Brophy Solcitors

CLAIMING COMPENSATION FROM THE LAW SOCIETY

If a client has a problem with a solicitor and is considering making a claim on the Law Society Compensation Fund, that claim must be received by the Law Society within six months of the loss coming to attention of the claimant. This new time limit was introduced following the introduction of the Solicitors (Compensation Fund) Regulations, 2013 and came into operation on 1st December 2013. 

It is possible for the Law Society to extend this six month deadline in exceptional circumstances but proving exceptional circumstances can be very difficult.

We have acted in a number of cases involving allegations of wrongdoing by solicitors and quite often although the wrongdoing had been brought to the attention of the client, the client continued to instruct the solicitor, sometimes because the solicitor assured them that everything would be all right in the end, and sometimes out of a misplaced sense of loyalty. 

This six month deadline concerns claims to the Law Society Compensation Fund but does not affect the standard time limit for suing a solicitor for negligence. In these cases you still have six years from the time when the negligence occurs. The high profile cases of Michael Lynn and Thomas Byrne involved claims made to the Law Society Compensation Fund because the clients could show that the solicitor had acted dishonestly and clients had lost money. If a solicitor acts negligently then you still have six years to issue your proceedings against the solicitor. 

In cases of dishonesty however, it is critical that immediately you become aware of a situation which you think might be dishonest, you either contact a solicitor or contact the Law Society.

Kevin Brophy,

Brophy Solcitors

FAMILY LAW CASES & SECTION 47 REPORTS

Kevin's Blog

I have recently discussed problems that have arisen with section 47 reports in family law cases and I am not sure if it’s coincidence but I have received a number of queries recently in relation to people who are having considerable difficulties with section 47 reports.

The main problem appears to be that many clients believe that the psychologist in question has made up their mind about them almost before the first meeting takes place. I have had reports of clients being questioned in a quite aggressive manner and clients getting the feeling from the tone of the questions that the psychologist’s sympathies lie very much with the other side. 

In my experience clients should come out of the section 47 process not knowing what the conclusions are likely to be in the report or as happens in some cases, the psychologist has already discussed the conclusions with both clients and both clients are basically happy. 

The problems arise however where during the course of the preparation of the section 47 report one of the parties becomes unhappy with the psychologist and wants to have that person removed. I have been involved in a number of cases where clients have expressed extreme dissatisfaction with the manner in which the section 47 process was being conducted by a child psychologist but only on one occasion did the client go so far as to instruct me to apply to have that person removed. We made our application and we met with Counsel and my client was told in no uncertain terms that unless there was an example of extreme and overwhelming wrongdoing, there was no chance that the court would remove the section 47 professional as it was felt that this would create a very dangerous precedent. 

The argument is that the section 47 personnel are all well known to the courts and are all extremely well qualified otherwise they would not be on the panel of experts in the first place. It is felt that in many section reports, one side is going to be very unhappy with the recommendations so it is not unusual that the complaints are made but this tends to colour the fact that in my experience, a number of my clients who have been unhappy with the manner in which the section 47 process was conducted, were quite entitled to be unhappy. However, there is very little you can do and it is for this reason that I always encourage clients as vigorously as I possibly can to treat the Section 47 process almost as if it were the hearing itself. Section 47 findings are not binding on the court but they are extremely persuasive and if your solicitor believes it is necessary for you to be fully prepared for a court hearing, then there is absolutely no reason why you should not also be fully prepared for the section 47 meetings. These meetings are critical and can affect the rest of your life. If your solicitor does not appear to be taking the matter seriously or devoting enough time to helping you prepare for these meetings, then you should absolutely insist that your solicitor set aside time to go through the type of questions you are likely to be asked and what the psychologist is likely to be looking for when preparing the report. 

In my experience, the section 47 report is by far the most critical document that is presented to a court and the section 47 process should be treated with extraordinary care and attention. 

Please also be very careful that you know exactly what the other side are saying to the section 47 professional. There is nothing to stop the other side writing lengthy letters to the psychologist giving one side of the story. In my opinion that is absolutely wrong and any such letters should be shared but in my experience that often does not happen. During the process you should ask the psychologist to confirm what input s/he has received from the other side and also confirm that you will receive copies of any correspondence she has received from them so that you can deal with anything of relevance.

Kevin Brophy,

Brophy Solcitors

THE MONICA LEECH CASE: DAMAGES IN DEFAMATION CASES

You will all be familiar with Monica Leech case, which is currently before the Supreme Court. This is the case where an allegation that Monica Leech was having an affair with a government minister resulted in a High Court jury awarding her €1.87 million in damages. That order is currently being appealed to the Supreme Court on the basis that it is disproportionately high.

I would put it in a slightly different light. I would not say this award was disproportionately high. I would say that it is one of the most outrageous decisions every made by an Irish court and is the type of decision that could end up meaning that juries would no longer hear defamation cases. 

Go on the Injuries Board website and look at their Book of Quantum. If you are in a road traffic accident and you are paralysed from the neck down for the rest of your life, you will generally not receive much more than €400,000. You will see the type of compensation you can expect to get if you lose your legs in an accident or if you lose your sight in an accident. 

I acted for many applicants concerning cases dealt with by the Residential Institutions Redress Board. Some of these were absolutely dreadful cases of young children being horribly sexually abused. Many of them were clearly extraordinarily damaged. Many suffered from alcoholism, had broken down marriages or had never got into a relationship in the first place. Applicants who had never been able to hold down a job were being offered €30,000 or €40,000 to settle their cases. 

When I compare damages that are awarded in cases where applicants have suffered very serious life threatening and permanent injuries and look at the amount of awarded to Monica Leech then I have to say that this type of award brings the whole area of defamation into disrepute. 

A person’s reputation is a very precious thing. I would be the first to accept that and I would be the first to accept that if a person has been genuinely defamed and has suffered as a result, they should be handsomely compensated and the person who did the defaming should be handsomely penalised. However, let’s be sensible and realistic. The award in this case was outrageous. As I write this, the Supreme Court has not handed down its verdict and I am sure that whatever final order is made, it will be ten times over and above any reasonable amount that should be awarded. I certainly hope however that it will be massively reduced.

Yours sincerely,

Kevin Brophy,

Brophy Solcitors