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

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

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

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 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

SAME SEX MARRIAGE – DOES THIS MAKE YOU FEEL UNCOMFORTABLE?

I would like to share with you the following short video. It does what all really powerful message are all about. It’s short, it absolutely gets its message across and it really make you stop and think. I hope you enjoy it.

Kevin Brophy,

Brophy Solcitors

SOLICITORS AND OVERCHARGING

Kevin's Blog

I received instructions yesterday from a client whose story reads like something from a particularly gruesome John Grisham novel.

His marriage got into difficulties and he instructed a firm of solicitors who ran a relatively straightforward divorce case. One of the terms of the court order was that the family home was to be sold and it was subsequently successfully sold and then the problems began. My client had not discussed fees with his solicitors because as he said to me, he regarded the solicitor almost as a friend rather than as a solicitor and he trusted him. Around the same time he received a very serious injury at work and was in very considerable pain for several years. He is no longer able to work although he remains a young man. 

When he received his cheque from the sale of the house, he was told that the solicitor had taken legal fees to cover the divorce and the conveyancing fees and the client thought the figures involved seemed extremely high and he looked for an invoice. No invoice was forthcoming and was not forthcoming for 8 years. When he handed me the invoice, I saw that the fee for the divorce was €25,000. The barrister’s fees were just over €3,000. When I asked did he receive a breakdown of the work completed by the solicitor, he said he did and he pointed to the description on the invoice which said “professional services rendered”. That was it. Nothing else. 

Following the divorce hearing, there were other small applications to court where my client applied to have the maintenance order varied because he was no longer working. One of these interim applications was handled by a barrister, who charged €1,600 and the solicitor charged €4,000. The description of his work was “professional services rendered”. 

This was only the beginning of his nightmare and I will not go into detail concerning his litigation claim and the manner in which that case settled and the costs he incurred. 

The only thing I want to emphasise in this note is that if a solicitor sends you a bill for €100, you are entitled to know precisely what work was completed. You are entitled to insist that prior to the solicitor being paid, you receive an invoice giving a detailed breakdown of all work completed and if you are not happy with that invoice, you are entitled to challenge it. 

If you challenge a solicitor’s bill, you can do it through the process of taxation or you can inform the solicitor that if he sues you for the full amount claimed, you will counterclaim for his/her negligent handling of the case. Alternatively you can complain to the Law Society about overcharging. 

Times are changing rapidly in the legal profession but there are plenty of solicitors out there who treat their clients in this way and because so many years have now passed, my client unfortunately can do very little about the situation he is now in. The bottom line here is that a solicitor is providing a service just like every other service provider. If your plumber says he wants €200 to do a job, you will want to know exactly what value you are going to get for that money. A solicitor is no different. When you employ a solicitor, you are the employer. Insist on your rights.

Kevin Brophy,

Brophy Solcitors

THE DIFFICULTY WITH NERVOUS SHOCK CASES

We were recently approached by a client who said that the hospital he had attended recently had written to him saying that certain medical instruments used in the treatment of him had not been properly sterilised and that he was therefore at risk of the dreadful CJD illness.

Our client was a young man who was clearly enormously upset at the idea that he had been exposed to the risk of this life threatening disease. CJD is a particularly distressing disorder, which came to the public attention many years ago when cattle began to contract it and it was known as “mad cow disease”. 

We were concerned that there was a conflict between two types of legal precedent. You may recall the case of Fletcher v. Commissioners of Public Works. This was a case where the plaintiff was employed as a general operative in Leinster House and who became aware that for four years, he was brought into contact with significant amounts of asbestos. The High Court found that the plaintiff should not have been obliged to work in dangerous conditions and as his employer knew of the dangers concerning inhaling asbestos particles, they were grossly negligent. In the Supreme Court, the High Court decision in favour of the plaintiff was overturned. The Supreme Court said that the case was not similar to nervous shock cases as there was no shock in the sense of a “sudden perception of a frightening event or its immediate aftermath”. The court’s decision was that they would not award compensation for a purely psychiatric injury arising from grief and mental anguish if that grief or mental anguish was not caused by a physical injury.

If I suffer a very minor injury in for instance a road traffic accident but I had a pre-existing psychiatric condition, which subsequently becomes symptomatic as a result of the accident and I suffer catastrophic effects and I have to leave my job, I will be compensated in full. The Supreme Court however say that if I did not suffer any physical injury but I received a shock and this triggered the same type of psychiatric illness, I cannot claim. There is no logic to this and it appears to me that the Supreme Court made a decision based on policy rather than logic. Many cases over the years have been dismissed on the basis that to allow the case will ‘open the flood gates’ for similar types of injuries and this appears to be one of those cases. 

We therefore had to return to our client to say that shock alone, not associated with any type of physical injury, will not give rise to a claim even if he suffers genuine and real psychiatric damage as a result of the other side’s negligence.

Kevin Brophy,

Brophy Solcitors

DEFAMATION – ACT QUICKLY, MOVE DECISIVELY, SETTLE REASONABLY

We were recently involved in a high profile defamation action where we were able to achieve a very rapid and satisfactory settlement for journalist John Waters and others in an action against RTE.

RTE have been criticised for the handling of this case and one of the criticisms has been that they settled the case too quickly. That is one of the issues I want to address in this email.

If a person is defamed it means that a statement has been made which injures that person’s reputation in the eyes of reasonable members of society. 

The law covering defamation is now set out in one comprehensive document, the Defamation Act, 2009. Previously you had to issue your proceedings within either three years or six years depending on the type of defamation but the position now is that proceedings must issue within 12 months. 

This makes sense because if you are claiming that your reputation has been damaged and you do nothing about it for 2½ or 5½ years, it will be very hard to say that you were upset that your reputation was damaged when you took no action to deal with the matter. 

In the John Waters case, we moved very quickly and we first of all simply sought an apology. That was all our client wanted. Our client had to move quickly because his reputation is a very precious thing and the allegation that he was homophobic was clearly defamatory. We strongly advised him to seek damages as a mark of the seriousness of the issue and we vigorously pressed RTE to settle this case quickly because if the matter went on, the damage to our client’s reputation could only get worse. RTE accepted this and ultimately we were able to compromise the matter and it settled within two weeks of the publication of the offending comments on the Saturday Night Show. 

Many people have said that they thought the case settled extraordinarily quickly. It did, but that is only as it should be. 

We were happy to achieve a good settlement for our client in that case and we were happy that RTE accepted that this was an extremely serious issue and one that should be addressed as a matter of urgency. They knew they could not succeed with any Defence of the case and they settled it quickly and in doing so saved the tax payer a very substantial sum of money.

The lesson to be learned is that if you are defamed, you have to move immediately. You cannot argue that your reputation was damaged and you were enormously upset that your reputation was damaged and then sit back and do nothing. Even a delay of weeks could be extremely damaging. If you move quickly, it emphasises how seriously you take the matter and it will encourage the other side to settle the case quickly if the claim is clear and undeniable. Even if it is not, you will at least ensure that the case moves along quickly as it is in nobody’s interest to drag out litigation any longer than it is absolutely necessary. 

Move quickly, act decisively and settle reasonably.

Kevin Brophy,

Brophy Solcitors

HAGUE CONVENTION - CHILDREN SHOULD ALSO HAVE A SAY

International child abduction disputes in Ireland are on the rise, and are likely to increase in the coming years. In many cases after marital or relationship breakdown, a child is removed in breach of rights of custody and taken out of the country in which the child has lived and been brought up. In most cases this is by one of the parents. Applications under the Hague Convention can be made in order to return the child to the country of origin in order that matters relating to custody and access can be determined. 

The concept of ‘habitual residence’ influences how these judgments are determined. However, the Convention does not define specifically what criteria determine habitual residence. The European Courts of Justice approach it as being the social and family environment in which the child has grown up and with which they are most familiar – it is often the place to which they are emotionally bound. This is usually determined by parental statements and other relevant facts such as the amount of time the child spent in a particular place.

However, a recent judgment by the Supreme Court in the United Kingdom, LC (Children) [2013] EWCA Civ 1058 has thrown light on whether the child’s views should play a part in this decision making process. In that particular case, an adolescent child refused to leave England after visiting her father in December 2012. She wanted to remain with him in England but the mother applied for her and her siblings to be returned to Spain under the provisions of the Hague Convention. Following an appeal to the Supreme Court, a unanimous ruling was made ordering that the case be remitted back to the original Family Division court because the original judge had failed to give sufficient weight to the length of time the eldest child had spent in England and her objections to returning to Spain. It is the first judgment of its kind in the UK, and may or may not be followed here in Ireland. If a child is of an age and ability to be capable of contributing information of weight and relevance to the judicial decision making process, they should be able to do so, the Court found. Furthermore, given that there is a perceived judicial bias in favour of mothers being granted custody over fathers, this recent ruling has significant implications for fathers in cases where abduction or other factors relevant to the provisions of the Hague Convention occurs.

Kevin Brophy,

Brophy Solcitors

EVERYONE (I MEAN EVERYONE!) HAS HUMAN RIGHTS

I appeared on a panel on Tonight with Vincent Browne last night discussing the question “Are people who oppose same sex marriage equality homophobic?”. I was invited to be on the panel because I am acting for John Waters, Breda O’Brien and members of the Iona Institute in relation to comments made on the Saturday Night Show when they were accused of being homophobes.

Brophy Solicitors is a human rights firm. I am a human rights lawyer. I believe that every individual has the right to have their rights vindicated and protected. This protection extends to a right to express contentious views freely and a related right to protect one’s reputation from damage. 

As a lawyer, my role is to represent my clients and to vindicate their rights to the best of my ability. I must do this irrespective of whether I personally agree with the views held by my clients. I believe that my clients were defamed on the Saturday Night Show and I subsequently represented and protected their interests effectively by securing a positive outcome for them.

At the same time, I am an advocate of same-sex marriage. I act for Senator Katherine Zappone and Dr. Ann Louise Gilligan in their application to have their Canadian marriage recognised in Ireland. I absolutely support their entitlement to have their marriage recognised in Ireland. If there is a referendum next year on same-sex marriage, I will vote in favour of a constitutional amendment to give effect to same sex marriage.

I frequently act for many members of the gay and lesbian community and other minority groups. My firm recently secured a very significant victory in a transgender case that will have major implications for gender-recognition in transgender cases. I support marriage equality and equality generally for the gay community.

Fundamentally, I believe that every individual should be afforded the opportunity to express their opinions freely. Individuals who oppose same-sex marriage should not fear for their lives or their reputations just because they oppose same-sex marriage.

I welcome debate on the question of same-sex marriage in the run up to the referendum next year, provided that it is a rational and civilized debate that respects individual rights. I may not be sympathetic to all my clients’ views on a particular subject, but I will always do my utmost to vindicate their rights if they are defamed and seek to defend their human rights if they are infringed.

Kevin Brophy,

Brophy Solcitors

PRE-NUPTIAL AGREEMENTS – THEY’RE ON THE WAY!

The Irish Farmers Association (IFA) is the unlikely group at the forefront of a lobbying campaign to have pre-nuptial agreements recognised under Irish law. The IFA has been a major proponent of the pre-nup since divorce was legalised in 1996 against the wishes of the majority of Irish farmers. They first began lobbying for changes in 2011 and recently renewed their efforts. 

If you consider the average Irish farm – it is clear why the issue is of concern. If a farmer’s marriage breaks down, divorce can mean division of land that has been in a family for generations. If the farm house is left to the mother in which to rear the children, the farmer can be forced to live far from his land and livestock. If the farm is split in half, this down-sizing renders it less viable as a business. 

Such is the fear of the implication of divorce that farmers are delaying the transfer of land to the younger generation, which has repercussions itself. However, it seems their campaign has been successful – Justice Minister Alan Shatter has agreed to consider the recognition of pre-nuptial agreements as part of legal reforms. 

A pre-nuptial agreement is a contract signed by a couple prior to marriage that outlines how finances and possessions are to be divided should the relationship break down. While some pre-nups can go as far as specifying how many home-cooked meals are expected on the table each week, the majority deal with property, business and financial assets. It specifies how these assets are to be divided in the event of a relationship breakdown. 

More and more Irish people are signing pre-nuptial agreements. While they are not legally binding in Ireland at the moment, they do carry weight in court. Judges are not obliged to enforce them but often use them as a persuasive guide when deciding on Judicial Separation and Divorce cases.

Many people are signing pre-nuptial agreements now in the hopes that Shatter’s review will mean that the agreement will soon become legally binding. In the meantime, it is likely that their pre-nuptial agreement will be taken into consideration by the judge as long as it meets certain requirements including that the agreement must be in writing and that both parties obtained independent legal advice prior to signing.

What’s the value of a pre-nup? Ask anyone who has gone through a messy divorce!

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