The Bar Review November 2017

THE BAR

REVIEW Journal of The Bar of Ireland

Implementing the Victims' Directive: a prosecutor's perspective

Volume 22 Number 5

November 2017

CONTENTS

The Bar Review The Bar of Ireland Distillery Building 145-151 Church Street Dublin DO7 WDX8 Direct: +353 (0)1 817 5166 Fax: +353 (0)1 817 5150 Email: rfisher@lawlibrary.ie Web: www.lawlibrary.ie

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EDITORIAL BOARD Editor Eilis Brennan BL Gerry Durcan SC Brian Kennedy SC Patrick Leonard SC Paul Anthony McDermott SC Sara Moorhead SC Brian Murray SC James O'Reilly SC Mary O'Toole, SC Mark Sanfey SC Claire Bruton BL Claire Hogan BL Mark O'Connell BL Ciara Murphy, Director Shirley Coulter, Director, Comms and Policy Vanessa Curley, Law Library Deirdre Lambe, Law Library Rose Fisher, Events and Administration Manager Tom Cullen, Publisher Paul O'Grady, Publisher

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143

PUBLISHERS Published on behalf of The Bar of Ireland by Think Media Ltd Editorial:

Ann-Marie Hardiman Paul O’Grady Colm Quinn Design: Tony Byrne Tom Cullen Eimear Moroney Advertising: Paul O’Grady

Commercial matters and news items relating to The Bar Review should be addressed to: Paul O’Grady The Bar Review Think Media Ltd The Malthouse, 537 NCR, Dublin DO1 R5X8 Tel: +353 (0)1 856 1166 Fax: +353 (0)1 856 1169 Email: paul@thinkmedia.ie Web: www.thinkmedia.ie

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Message from the Chairman

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LEGAL UPDATE

XXIX

Editor's note

121

Feature

127

Protecting children's rights News

121

The Denham Fellowship

Law in practice

Visit from Texan delegation

A benchmark for bullying claims

129

John Philpot Curran commemoration

The hidden persuaders and the inner

133

nature of tort action Business news

123

Professional pension advice

Implementing the Victims'

138

Directive: a prosecutor's perspective

www.lawlibrary.ie Interview Views expressed by contributors or correspondents are not necessarily those of The Bar of Ireland or the publisher and neither The Bar of Ireland nor the publisher accept any responsibility for them.

The lawyer at the centre

124

Closing argument

143

From wellness to resilience

Papers and editorial items should be addressed to: Rose Fisher at: rfisher@lawlibrary.ie

THE BAR REVIEW : Volume 22; Number 5 – November 2017

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MESSAGE FROM THE CHAIRMAN

Much to do The Council has a busy year ahead working for members and dealing with the impact of new regulations. Welcome back to the new legal year and a particularly warm welcome to our 89

Investing in member facilities

new members, who came into membership of the Law Library in October. It was

Last year’s Council undertook a lot of work to decide the approach to be taken

my privilege to welcome all our new colleagues during orientation day.

by The Bar of Ireland to ensure that both the administration and individual

Council of The Bar of Ireland has a busy year ahead. The first meeting of the new

members can comply with the new General Data Protection Regulation (GDPR),

Council took place in September, where a number of key areas of priority were

due to come into force in mid May 2018. Communications to assist members in

identified.

understanding the need to comply with the provisions of the GDPR will continue. Significant investment in our IT infrastructure has been necessary and we are on

Engagement with the LSRA

schedule to meet the May 2018 deadline.

Engagement with the Legal Services Regulatory Authority (LSRA) will continue

Opportunities to maximise the use of our property assets for the benefit of

throughout the year ahead to ensure that the provisions of the legislation are

members continued over the long vacation. The old Sky Bar on the third floor of

implemented as smoothly as possible. The LSRA has recently appointed a

the Church Street premises has been refurbished, providing an additional 27 seats

permanent CEO, Mr Brian Doherty, who took up his position in mid September

for members, together with a new modern café that overlooks Church Street.

2017. The Council has repeatedly expressed concern at the slow pace of progress

Pressure on seating is an ongoing issue and the Council aims to ensure that we

to get the new office of legal costs adjudication established, and we continue to

can increase seating wherever possible. Over the last two years, we have been

make representations in that regard.

able to put an additional 47 assigned seats into the Church Street building, and

Supporting junior and circuit members

occupancy.

these comfortably sit alongside the 93 offices, which are now approaching full Supporting junior members of the profession and members who practise primarily

Finally, I wish to commend the former Vice Chair of the Council, Séamus Woulfe

on circuit is another key priority for the Council. The survey of circuit practitioners

SC (now Attorney General: read an interview with him on page 124) and our

undertaken earlier this year produced a comprehensive agenda to engage with

current Vice Chair, Mary Rose Gearty SC, for their work in launching the new

the Courts Service on matters of concern to members, one of the primary users

Consult a Colleague helpline. This is a new service for members to access a panel

of the facilities of the Courts Service on a daily basis. The Council made a

of trained volunteer members who will be available to provide support and

submission to the Courts Service in relation to the development of its strategic

guidance for any member who is experiencing challenges in their professional

plan for the next three years and took the opportunity to highlight the issues

life. Further information on the initiative is included in this

raised by members on circuit. Jack Nicholas BL has agreed to chair the Circuit

publication.

Liaison Committee over the year ahead, building on the sterling work carried out by Elaine Power BL. The Young Bar Committee (YBC), under the leadership of Venetia Taylor BL, also has a full agenda over the year ahead to support and represent the views of our younger members. One-third of members of the Law Library are in practice for less than seven years and the Council is determined to do all that it can to support the endeavours of the YBC.

Professional fees The Criminal State Bar Committee is anticipating that formal negotiations on professional fee matters will commence shortly now that the successor to the Lansdowne Road Agreement has been passed by the public service unions. This was the commitment given by the Department of Public Expenditure and Reform in consideration of the comprehensive submission made by the Council in March 2016, which called for a reversal of the deep cuts to professional fees applied

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during the period 2008-2014. In relation to civil legal aid, a submission on

Paul McGarry SC

matters arising in that area has yet to be completed and submitted, and will be

Chairman,

prioritised by the new Civil State Bar Committee for this term.

Council of The Bar of Ireland

THE BAR REVIEW : Volume 22; Number 5 – November 2017

EDITOR’S NOTE

Insight and information

NEWS

John Philpot Curran commemoration On Friday October 13, 2017, The Bar of Ireland and The Honorable Society of King's Inns held a commemoration dinner to celebrate the 200th anniversary of the death of John Philpot Curran (1750-1817) in The Honorable Society of

From the workings of the AG's office to the Victims' Directive, this edition contains interesting and important information.

King's Inns. Over 100 guests were in attendance to celebrate the life and work of John Philpot Curran, including Attorney General Séamus Woulfe SC, senior members of the judiciary and members of The Bar of Ireland. A wreath laying ceremony was also held on Saturday October 14 at the

In our first edition of the new legal year, our focus is on the new Attorney

gravestone of John Philpot

General, Séamus Woulfe. In our exclusive interview, we carry a unique

Curran

insight into the daily life of the chief law officer of the State as he shares

Cemetery.

in

Glasnevin

his perspectives on the challenges facing his office in the era of 'new

Turlough O’Donnell SC, Jane

politics' and Brexit.

McGowan BL and Amy

Damages awards are always squarely in the spotlight when any discussion

Deane BL read excerpts from

turns to rocketing insurance premiums. In this edition, an experienced High

John

Court judge debunks the myth that this is as a result of inflated court

speeches including 'Speech

awards. Mr Justice Kevin Cross drills down into the facts and figures, and

on the Right of Election of

concludes that awards have fallen, not risen, over the past number of years.

Lord Mayor of the City of

This time of year has its share of stresses for anyone who is self-employed.

Dublin' (1790).

Philpot

Curran's Liam McCollum QC, Chairman of the Bar of Northern Ireland, and Mary Rose Gearty SC, laid a wreath at John Philpot Curran's grave in Glasnevin Cemetery.

Taxes must be paid, pensions fed and in a profession that relies on projecting confidence and certainty, we frequently fail to fully recognise the extent to which stress weighs on our daily lives. Our closing argument discusses recent initiatives taken by the Council of The Bar of Ireland to encourage all members to avail of measures to improve our physical and mental health. The Victims' Directive has had major ramifications for practice in criminal courts. The aim of the Directive is to focus on the rights of an injured party

FIND A BARRISTER APP

at every stage of the criminal process. We get the lowdown from the

AVA I L A B L E N O W

perspective of the Office of the DPP on how the Directive is having an impact in practice. And finally, a recent Supreme Court judgment has delved deep into the nature of the bullying claim. The plaintiff in that action lost her case but our writer explains that this is far from the death knell for bullying as a cause of action. In fact, the judgment of the Supreme Court

G A I N I N S TA N T A C C E S S T O THE BAR OF IRELAND’S MEMBER DIRECTORY AND

clearly recognises this as a form of personal injury, and gives guidance on

E A S I LY F I N D B A R R I S T E R S

what is required to constitute a cause of action.

BY NAME OR BY USING T H E A DVA N C E D SEA RC H FUNCTION TO IDENTIFY BARRISTERS BY AREAS OF PRACTICE, S P E C I A L I S AT I O N , CIRCUITS AND ADDITIONAL LANGUAGES.

Eilis Brennan BL Editor ebrennan@lawlibrary.ie

THE BAR REVIEW : Volume 22; Number 5 – November 2017

121

NEWS

Review of the administration of civil justice The President of the High Court, Mr Justice Peter Kelly, following a request from Government, has recently established a review group to recommend reforms in the

■ A mechanism should be considered through which other departments of State may contribute to the process in relevant areas.

administration of civil justice in the State. The terms of reference of the group are to examine the current administration of civil justice in the State with a view to:

The Government also requests that the review would address the below

1. Improving access to justice.

commitments made by Government in 2016 relating to the courts, and in particular

2. Reducing the cost of litigation including costs to the State.

to propose a basis on which the annual benchmarking study proposed in item (b)

3. Improving procedures and practices so as to ensure timely hearings.

be implemented with effect from 2017:

4. The removal of obsolete, unnecessary or over-complex rules of procedure. 5. Reviewing the law of discovery.

"a) A modern legal system must be able to respond to the changing values and

6. Encouraging alternative methods of dispute resolution.

attitudes of our society, resolve issues and promote equality. Through the

7. Reviewing the use of electronic methods of communications, including e-litigation.

implementation of a progressive law reform programme we can strengthen our Constitution, rule of law and our justice system for the benefit of everyone.

8. Examining the extent to which pleadings and submissions, and other court documents, should be available or accessible on the internet. 9. Identifying steps to achieve more effective outcomes for court users, with particular emphasis on vulnerable court users, including children and young persons,

b) We will commission an annual study on court efficiency and sitting times, benchmarked against international standards, to provide accurate measurements for improving access to justice; and,

impecunious litigants who are ineligible for civil legal aid and wards of court. c) We will propose legislation to reduce excessive delays to trials and court The Government has requested that the following matters be taken into account

proceedings including pre-trial hearings".

by the review: ■ The need to maintain a targeted and focused approach to the scope and delivery.

The review group will consist of a representative of the:

■ The need to take into account work and initiatives already developed or underway

■ Supreme Court;

■

Court of Appeal;

such as the Law Reform Commission 2010 Report on Consolidation and Reform

■ High Court;

■

Circuit Court;

of the Courts and subsequent Department of Justice and Equality work thereon,

■ District Court;

■

Small Claims Court;

and exiting provisions intended, following consultation with the Courts Service,

■ Department of An Taoiseach;

■

Department of Justice and

for inclusion in the forthcoming Courts and Civil Law (Miscellaneous Provisions) Bill (e.g., electronic filing and statements of truth among others) and other legislation under preparation or pending commencement. ■ Composition of the review body is critical and needs to ensure that a broad range of views is obtained, including relevant experts from within and outside the

Equality; ■ Department of Public

■

Expenditure and Reform; ■ The Council of The Bar of Ireland;

Director General of the Attorney General’s Office;

■

The Law Society of Ireland.

and,

courts and Courts Service and the Department of Justice and Equality. Also, consideration should be given to obtaining expertise in the areas of business

The Chairman of the Council of The Bar of Ireland, Paul McGarry SC, has agreed to

process and general management/efficiency.

participate in the review group on behalf of The Bar of Ireland.

The Denham Fellowship Visit from Texan delegation The Bar of Ireland is delighted to announce that two very deserving individuals have The Bar of Ireland was delighted to welcome Senior District Judge Larry Gist,

been awarded The Denham Fellowship 2017. Both commenced the Barrister-at-Law

accompanied by a large delegation from Texas, to the Distillery Building on

Degree programme in The Honorable Society of King’s Inns in October, launching

October 9. A special CPD session entitled ‘Texas Hold’em: Sentencing

into what will be a five-year programme of financial, educational and professional

Guidelines in Texas and in Ireland’ was held, presenting a unique opportunity

support, and ultimately a successful, rewarding and long-lasting career at the Bar.

to contrast the criminal sentencing systems in the two jurisdictions. Among

The Fellowship, run by The Bar of Ireland in association with the King’s Inns,

the legal issues discussed were: jury selection and service; prison and parole;

endeavours to encourage more diversity in the legal profession by assisting aspiring

criminal appeals; and, the Texas death penalty. Speaking alongside Judge

barristers who come from socioeconomically disadvantaged backgrounds to gain

Gist was long-time Texan prosecutor and criminal defense attorney David W.

access to professional legal education at the King’s Inns and professional practice

Barlow, with Mr Justice Patrick J. McCarthy, Ms Justice Isobel Kennedy and

at the Law Library. The Bar is also pleased to announce that the application process

Mary Rose Gearty SC presenting the Irish perspective. The session was well

for 2018 is now open. The Bar of Ireland took stands at various law fairs in

attended by members of the Law Library and the Texan delegation, which

universities around the country in September and October to promote the

made for a lively forum to debate and exchange views on the differences

Fellowship. We were delighted to meet with law students in NUI Galway, UCC, UCD,

between the two systems.

Trinity, and NUI Maynooth. The closing date for applications is Monday, November 20, 2017, and full details can be found on www.lawlibrary.ie.

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THE BAR REVIEW : Volume 22; Number 5 – November 2017

NEWS

Professional pension advice October 31 marks this year’s self-employed tax return deadline, with those using

JLT points out that if members do not take this opportunity now, they will not get

the Revenue Online Service (ROS) enjoying a slightly extended deadline of

another chance to substantially reduce their 2016 income tax liability. The company

November 14, 2017. Self-employed barristers are able to claim tax relief against

firmly believes that pensions remain the most tax-efficient way to save for

pension contributions that are paid by set Revenue deadlines and are within the

retirement. By contributing now you will not only benefit from a better retirement

age-related contribution maximum limits set out in Table 1. It is not possible to

fund but also from the immediate tax relief available to you.

defer the contribution payment to a later date and still qualify for the relief available.

Anyone making a pension contribution no longer needs to submit pension

Table 1: Maximum tax relief available on a pension contribution. Age

Maximum tax relievable pension contribution (as a % of earnings*)

Up to 29 30 to 39 40 to 49 50 to 54 55 to 59 60 and over

15% 20% 25% 30% 35% 40%

documentation with their tax return; however, Revenue may request this at any stage in the future. JLT will issue the appropriate certification in respect of all contributions processed. Over the next month or so all self-employed barristers must file their tax return for 2016, pay any outstanding income tax from 2016 and pay preliminary income tax for 2017. Contributing to your The Bar of Ireland Retirement Trust Scheme allows you to reduce your tax bill.

* Subject to an earnings cap of ¤115,000. JLT Financial Planning operates The Bar of Ireland Retirement Trust Scheme and, as in previous years, as we approach the tax deadline, your dedicated JLT Bar pension team will be present in barrister workplaces to process pension contribution payments and to give advice. There will be two rounds of meeting opportunities before the October and November deadlines. Meetings will be held on a first come, first served basis; for full details see Tables 2 and 3 below. There are a wide range of investment funds available under The Bar of Ireland Retirement Trust Scheme including: managed; passive; absolute return; multi asset; equity; bond; and, cash. The on-site JLT team will have detailed information on all the funds available. If you plan on making a pension contribution, your cheque must be made payable to “The Bar of Ireland Retirement Trust Scheme” and a completed Contribution Submission Form must be included.

Donal Coyne, Director of Pensions, JLT Financial Services Limited.

Table 2: October 31 – tax deadline meetings. Date

Location

Room

Friday, October 27 – 12.30pm-2.00pm Friday, October 27 – 2.00pm-5.00pm Tuesday, October 31 – 10.00am-1.00pm Tuesday, October 31 – 2.00pm-5.00pm

Criminal Courts of Justice, Parkgate St Church St Building, 158/159 Church St Distillery Building, 145-151 Church St Law Library, Four Courts, Dublin 7

Staff office (seventh floor) Room C Consultation Room 11 (second floor) Director of L.I.S. Office (second floor)

Table 3: November 14 – tax deadline meetings. Date

Location

Room

Friday, November 10 – 10.00am-1.00pm Friday, November 10 – 2.00pm-5.00pm Monday, November 13 – 10.00am-1.00pm

Law Library, Four Courts, Dublin 7 Church St Building, 158/159 Church St Church St Building, 158/159 Church St Law Library, Four Courts, Dublin 7 Criminal Courts of Justice, Parkgate St Distillery Building, 145-151 Church St Distillery Building, 145-151 Church St Law Library, Four Courts, Dublin 7 Church St Building, 158/159 Church St Law Library, Four Courts, Dublin 7

Director of L.I.S. Office (second floor) Room C Room C Director of L.I.S. Office (second floor) Staff office (seventh floor) Consultation Room 11 (second floor) Consultation Room 11 (second floor) Director of L.I.S. Office (second floor) Room C Director of L.I.S. Office (second floor)

Monday, November 13 – 12.30pm-2.00pm Monday, November 13 – 2.00pm-5.00pm Tuesday, November 14 – 10.00am-1.00pm Tuesday, November 14 – 2.00pm-5.00pm

THE BAR REVIEW : Volume 22; Number 5 – November 2017

123

INTERVIEW

The lawyer at the centre Attorney General Séamus Woulfe spoke to The Bar Review about his career and the challenges facing his office in the era of 'new politics' and Brexit. and the quality of the work is very high by the time it reaches me". It's all quite different to being a barrister in private practice: "A big part of the learning curve is the interaction with bureaucracy. It's not necessarily the advice you give, but when you give it, or who you give it to". There's no such thing as an average day: "It's a combination of trying to get through

Ann-Marie Hardiman Managing Editor at Think Media Ltd

the paperwork, and all kinds of meetings – with officials in this office about advisory files or legislative matters, or with Government departments or ministers, and also with the judiciary or legal bodies like The Bar of Ireland or the Law Society".

The offices of the Attorney General on Merrion Street sit snugly in the heart of

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Government Buildings, and the literal and symbolic significance of their position is

New politics

not lost on the newest incumbent: "Government departments are often their own

Aside from its role as legal adviser to the Government on all issues, including

little kingdoms, but this office is a hub – almost everything of major importance

litigation affecting the State, perhaps the principal task of the Attorney General's

comes through here".

office is to assist in the legislative process. This would be significant under normal

Séamus Woulfe is settling in to his new role as the chief law officer of the State:

circumstances, but the era of 'new politics', where the coalition Government is

"I'm enjoying it very much. We deal with a wide range of issues across the complete

supported by a 'confidence and supply' arrangement with Fianna Fáil and some

spectrum of public law, and a huge volume of material comes through my desk, but

independents, and an unprecedented number of independents and smaller

I'm very lucky that there's a great professional staff in the Attorney General's office,

political groupings are present in the Dáil, has had a particular impact in the form

THE BAR REVIEW : Volume 22; Number 5 – November 2017

INTERVIEW

Making history

The Office and the profession An expansion of the legal services offered in Leinster House would be likely, of course, to lead to employment for legal professionals. Access to work

Séamus Woulfe's early career at the Bar included high-profile cases that had a

emanating from the Attorney General's office, particularly for barristers at the

formative influence on him, and on Irish society as a whole.

start of their careers, is an ongoing issue, and one Séamus is keen to address:

In 1992, along with John Rogers SC and Mary O'Toole BL, he acted for Miss X

"I don't think the Office has had a specific policy in the past. Barristers can

in the Supreme Court in Attorney General v X. It's no exaggeration to say that

apply to be put on panels and can indicate their experience and expertise, but

the "X Case" gripped the nation, as the Supreme Court deliberated on whether

the difficulty for younger practitioners is a lack of experience. Part of my

a 14-year-old child who was pregnant as a result of rape could be allowed to

learning curve is trying to review the panels of counsel that are briefed by the

obtain an abortion on the grounds that her life was at risk from suicide. For those

State from the point of view of young barristers, and also of gender balance

in the eye of the storm, however, the focus was, of necessity, narrower: "It's part

and diversity generally. When the Council of The Bar of Ireland was looking at

of your training as a barrister to focus on the objective legal issues as much as

ways to help young barristers get started, one of the suggestions was to assist

possible. You’re aware that there's publicity and a lot of noise in the background,

them in obtaining discovery work, and the Bar now has a discovery database.

but you're focused on the legal issues from the starting perspective of the side

I would hope to do something similar here, perhaps by establishing discovery

you're on. We had to fight on those issues from that perspective, and our client

panels. There was also in the past a system whereby the top three candidates

won her appeal".

from King's Inns in each year would be put on some panels for State work even

He acknowledges the strange serendipity in his now being the Attorney General

though they are in their first year of practice. I'm looking at renewing that".

who will likely advise on another referendum on abortion, but is glad to have

Séamus is in no doubt that the State gets value for money from the legal

had such extensive experience of the legal issues involved.

professionals it engages: "People are often willing to do work for the State at

The other major case of Séamus' early career saw him represent then Labour TD

lower rates than commercial fees; the work is interesting and there's an

Pat Rabbitte at the Beef Tribunal, which also produced fascinating legal issues:

element of public service".

"One issue was the question of whether politicians could be compelled to disclose their sources. Under parliamentary privilege, they couldn't be compelled to do so for what they said in the Dáil chamber, but when they repeated it in Dublin Castle [during the Tribunal], and were not physically standing in the Dáil Chamber, could they be compelled? The Supreme Court overturned the High Court and said they could not be so compelled. It was a limited exception that if it was a Tribunal established by the Dáil, it was akin to saying it in the Dáil". These were busy times for a "fairly junior" barrister, and Séamus acknowledges his good fortune at a relatively-early stage in his career: "The Bar is sometimes

"There will always be room in Ireland for a profession of advocates who specialise in the presentation of oral arguments in court. The only question may be whether or not the Bar reduces in size as a result".

a very unpredictable profession, but you can get a lucky break. These cases got me a bit of a profile in a profession where you can't advertise yourself".

A place for advocates The profession is facing into a period of enormous change with the enactment of a significant increase in the volume of Private Members' Bills. This is by no

of the Legal Services Regulation Act (LSRA), but Séamus feels that the

means a negative development, but it poses a challenge to the system,

fundamentals will not alter: "There will always be room in Ireland for a

specifically in terms of how opposition TDs might be supported and resourced in

profession of advocates who specialise in the presentation of oral arguments

preparing these Bills: "The Government has the AG's office to prepare and advise

in court. The only question may be whether or not the Bar reduces in size as

on its legislation, but Opposition members of the Dáil and Seanad will need

a result. Some may avail of new structures to form partnerships, and the core

greater resources to help them with preparing legislation if the system is to

group of advocates might become smaller. I'm not recommending that it does,

function more efficiently. Some Private Members' Bills have a good idea, or a

but the economic reality is that it is difficult to get started in a career at the

good objective, but the technical skill or expertise often isn't there to develop it

Bar, and some may choose a different model in their early years.

in the best legal language, and there may be technical problems, so it's causing

"Barristers have to be good at written submissions too, and there may be more

a clog in the system".

emphasis on those in future. The European Court of Justice favours a greater

One possible solution is the expansion of the Oireachtas' own small legal service

balance, and provides a fixed, and normally shorter, time for oral arguments.

to provide the necessary support. A former Secretary General in the Department

Things may go that way here, and some re-balancing may not be a bad thing".

of Communications, Energy and Natural Resources, Aidan Dunning, has prepared

Before taking up his current post, Séamus worked extensively in the area of

a report, which offers suggestions that acknowledge the wider context in which

regulatory law, advising the Medical Council and the Teaching Council, among

these Bills are presented: "Some Private Members' Bills are brought with the aim

others, so his perspective on the LSRA is contextualised by a climate of

of voicing an issue in the Dáil, not really to change the law, so some change to

increasing professional regulation: "Personally, I always felt it was a bit

the arrangements around Dáil speaking time might also help to resolve the issue".

unrealistic to think that the Bar could be purely self regulated. It was always

THE BAR REVIEW : Volume 22; Number 5 – November 2017

125

INTERVIEW

Good sport The son of a civil servant, Séamus grew up with a keen interest in how

was their oyster. The trip also gave me the opportunity to play squash, which I

government, and society, is organised, but rather than heading in the direction

love".

of politics, chose to pursue a legal career. He cites the film The Winslow Boy,

Séamus is married to fellow barrister Sheena Hickey, who stepped aside from

which he saw as an adolescent, as a pivotal moment: "I was fascinated by the

practice when their children were born but is currently considering returning

courtroom scenes and always wanted to be a barrister rather than a solicitor".

to the law. His daughter Grace is in second year at secondary school, while son

Séamus studied law in Trinity College Dublin. A J1 summer in the US left him

Alex is in sixth class. A sports lover, squash remains his first love: "When you're

with a strong desire to return as a postgraduate, but an opportunity to go to

on the squash court, you can't think about anything else. The ball is going fast,

Canada instead led him to Dalhousie University in Nova Scotia, the oldest law

so you clear the head".

school in Canada, on a Killam Scholarship: "It's a great thing for people to get

He plays a little tennis and golf, and as a staunch GAA fan he is, of course,

a taste of that North American positivity. The mid 1980s in Ireland was a very

celebrating a wonderful year for the Dubs. He is a mentor in his local GAA club

negative time, but in North America people leaving college still felt the world

in Clontarf, where both of his children play.

going to be necessary to have some degree of external regulation, for example

In the case of Brexit, the legal problems are potentially immense: "There are

in dealing with very serious disciplinary cases".

huge challenges for this Office and all of Government as we approach 2019.

The issue of judicial appointments has also, of course, been a source of

To take one example, I attended a conference recently on the European Arrest

considerable controversy in recent times, and at the time of writing, the

Warrant, and what happens to a system that's been well developed in recent

Judicial Appointments Bill had passed Second Stage in the Dáil and was due

years to deal with the extradition of alleged offenders. Would there have to

before the Oireachtas Justice Committee. Séamus feels it's important to focus

be new arrangements between the UK and all 27 remaining member states, or

on the fundamental aims of the Bill: "There's a difficult balance between

will there be the potential for bilateral agreements just with the UK? Further

having external and lay involvement in the appointment of judges, and the

issues arise if the UK is not willing to accept the European Court of Justice as

involvement of judges themselves, who know the candidates and know what's

the arbiter in disputes".

involved in the job. Whatever system is finally enacted by the Oireachtas, the

A transition period may allow for things to be done more gradually: "There will

important thing is that it will be capable of attracting and selecting the best

have to be rules about what happens to cases that have already started: what's

candidates. Whatever the mechanism for appointing people, the criterion

the cut-off going to be and things like that. So much of industry and services

expressly stated in the Act is that merit should be the decisive principle. By

are regulated and governed by European Union rules that trying to disengage

and large the system has served us very well, but it probably is an important

the British elements of that is going to be extremely complicated".

substantive provision in the Bill to say that that's the decisive factor in making the appointment".

At the table

The big issues

at the Cabinet table, so what is it like to be present when decisions crucial to

Two issues in particular look set to dominate not just the Attorney General's

the running of the State are made?

office but the nation as a whole in the next 12 months: the proposed

"It's a fascinating experience and a huge privilege for someone who's not

referendum on the Eighth Amendment of the Constitution and Brexit.

elected by the People to be able to attend and observe and listen to the

The Attorney General has the rare privilege among unelected officials of sitting

Séamus is no stranger to the myriad issues around the Eighth Amendment,

elected Government doing its business. In some ways Cabinet is like any board

having acted in the 'X Case' in the early 1990s (see panel): "The challenge

of a company; it has its own dynamics and personalities. For somebody with

will be in dealing with the very complex legal issues that arise when it

an interest in politics and government it's particularly interesting and exciting

comes to any form of amendment, and the drafting work that would go

to be there and part of it."

with that, which may involve not only the text of an amendment to the Constitution, but possibly having to prepare draft legislation. I'm in no way

The Bar

pre-empting the decision of Government, but in recent years there has

As a formerly active member of The Bar of Ireland, and Vice Chairman of the

been a methodology of saying that alongside the amendment there will be

Council at the time of his appointment to the post of Attorney General, Séamus

legislation, and the people need to know the shape of the legislation at

remains an ex officio member, and hopes to retain a close connection to his

the time they're voting on the amendment. The Taoiseach has said that

professional body: "I would hope to attend some Council meetings – absenting

he's hoping to have the referendum in May or June of next year, which

myself when the Government is under discussion, of course. It's something

means that there will be a lot of intensive work over a relatively short period

that a number of my predecessors have done and something I would be very

of time".

eager to do".

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THE BAR REVIEW : Volume 22; Number 5 – November 2017

AGRICULTURE BANKING / EDUCATION / COMPETITION LAW / EXTRADITION LAW / CONSTITUTIONAL LAW FAMILY LAW / ENERGY / ARBITRATION / EQUALITY INSOLVENCY / CITIZENSHIP / DAMAGES EDUCATION DAMAGES / BUILDING LAW / CHILDREN / COMMERCIAL LAW / COMPANY LAW DEFAMATION COURTS EVIDENCE / DATA PROTECTION / EUROPEAN UNION / CONTRACT COPYRIGHT CRIMINAL Volume 22 NumberLAW 5 The Bar Review, journal of The Bar of Ireland J November 2017 / / ENVIRONMENTAL LAW UDGES PROCEDURE INFORMATION TECHNOLOGY / EMPLOYMENT LAW

LEGAL

UPDATE A directory of legislation, articles and acquisitions received in the Law Library from June 22, 2017, to September 27, 2017. Judgment information supplied by Justis Publishing Ltd. Edited by Deirdre Lambe and Vanessa Curley, Law Library, Four Courts.

ADMINISTRATIVE LAW Administrative and constitutional law – Appeal – Role of appellate court – Applied Hay v O’Grady [1992] 1 IR 210, Referred to McGraddie Pursuer against McGraddie and another (respondents) 2015 SCLR 109, Referred to Gahan v Boland 1984 WJSC-SC 453 – (Denham C.J., McKechnie J., MacMenamin J., Dunne J., O’Malley Iseult J. – 11/07/2017) – [2017] IESC 50 Leopardstown Club Ltd v Templeville Developments Ltd Administrative and constitutional law – Judicial review – Affirmation of convictions – Referred to Kyprianou v Cyprus (73797/01) (2007) 44 EHRR 27 – (O’Donnell Donal J., McKechnie J., Dunne J. – 06/04/2017) – [2017] IESC 49 Fitzgerald v Ó Donnabháin Administrative and Constitutional law – Ex gratia scheme for women – Magdalene Laundry Scheme – [2017] IEHC 389 M.K.L. v Minister for Justice and Equality [High Court] Administrative and constitutional law – Judicial review – Affirmation of convictions – [2017] IESC 49 Fitzgerald v O Donnabháin [Supreme Court]

AGRICULTURE Agriculture – Animal Health and Welfare Act, 2013 – Animal welfare offences – [2017] IEHC 368 Sfar v Minister for Agriculture [High Court] Statutory instruments European Communities (control of organisms harmful to plants and plant products) (amendment) (no. 2) regulations 2017 – SI 318/2017 European Communities (official controls on the import of food of non-animal origin for pesticide residues) (amendment) regulations 2017 – SI 356/2017 European Communities (minimum conditions for examining agriculture plant species) (amendment) regulations 2017 – SI 311/2017 European Communities (minimum conditions for examining of vegetable species) (amendment) regulations 2017 – SI 310/2017 European Communities (vegetable seeds) (amendment) regulations 2017 – SI 275/2017 Prohibition on tail docking and dew claw removal (dogs) regulations 2014 (amendment) regulations 2017 – SI 304/2017 Registration of farm partnerships and succession farm partnerships regulations 2017 – SI 273/2017 Veterinary Practice Act 2005 (treatment by non-registered person) regulations 2017 – SI 278/2017

ARBITRATION

Banking and finance – Practice and procedures – Dismissal of claim – [2017] IEHC 435 Coyne v Danske Bank [High Court] Banking and Finance – Practice and procedures – Absence of legal representation – [2016] IEHC 803 Cronin v Tanager Ltd [High Court] Banking and finance – Loan liability – Denial of summary judgement – [2016] IEHC 804 Bank of Ireland v Macken [High Court] Banking and finance – Practice and procedures – Dismissal of claim – [2017] IEHC 438 McMahon v Bank of Scotland Plc [High Court] Acts Asian Infrastructure Investment Bank Act 2017 – Act No. 24 of 2017 – Signed on July 26, 2017 Central Bank and Financial Services Authority of Ireland (Amendment) Act 2017 – Act No. 21 of 2017 – Signed on July 25, 2017 Library acquisitions Hewetson, C., Mitchell, G. Banking Litigation (4th ed.). London: Sweet & Maxwell, 2017 – N303

BANKRUPTCY Bankruptcy – Bankruptcy Acts 1988-2016 – S. 61 and 85(3A) of The Bankruptcy Act, 1988 – [2017] IEHC 426 Lehane (the official assignee in the estate of Burke) v Burke [High Court]

Library acquisitions Gaillard, E., Bermann, G.A. Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. New York, 1958 and The Netherlands: Brill Nijhoff, 2017 – N398.8

Library acquisitions Potter, H., Adams, T., Dickson, A. The Principles of the Law of Bankruptcy and Deeds of Arrangement (2nd ed.). London: Butterworth & Company Limited, 1939 – N310

ADVOCACY

BANKING

Library acquisitions Munkman, J. The Technique of Advocacy. London: Butterworths, 1991, and London: LexisNexis, 2010 – L93

Banking and finance – Non-payment of loan – Summary judgment – [2017] IEHC 432 Cheldon Property Finance DAC v Hale [High Court]

Statutory instruments Central Bank (supervision and enforcement) Act 2013 (section 48(1)) (undertakings for collective investment in transferable securities) (amendment) regulations 2017 – SI 344/2017

ADOPTION Acts Adoption (Amendment) Act 2017 – Act No. 19 of 2017 – Signed on July 19, 2017

CHILDREN Jurisdiction – Public law – Welfare of child – Considered Health Service Executive v M.W and anor [2013] 3 IR 805 – (Denham C.J., O’Donnell Donal J., McKechnie J., Clarke J., MacMenamin J., Dunne J., Charleton J. – 19/07/2017) – [2017] IESC 56 Child and Family Agency v JD Library acquisitions Hershman, D., McFarlane, A. Hershman and McFarlane Children Act Handbook 2017/18 (2017/18 ed.). Haywards Heath: Bloomsbury Professional, 2017 – N176

COMMERCIAL LAW Library acquisitions Tse, H. Doing Business after Brexit: A Practical Guide to the Legal Changes. Haywards Heath: Bloomsbury Professional, 2017 – N250

COMPANY LAW Shareholding – Interlocutory relief – Cause of action – [2017] IECA 177 O’Donoghue v Allied Irish Banks plc [Court of Appeal] Company – S. 280 of the Companies Act, 1963 – Nature of agreement whether sale-purchase or loan and charge – [2017] IEHC 393 Governor and Company of The Bank of Ireland v Eteams International Ltd [High Court] Company – Taxation – Official Liquidator – [2017] IEHC 428 Wallace (Official Liquidator of Custom House Capital Ltd) v Cassidy [High Court] Shareholding – Interlocutory relief – Cause of action – [2017] IECA 177 O’Donoghue v Allied Irish Banks plc [Court of Appeal] Library acquisitions Cordes, M., Pugh-Smith, J., Abbas, S. Shackleton on the Law and Practice of Meetings (14th ed.). London: Sweet & Maxwell, 2017 – N263.9 French, D., Mayson, S., Ryan, C. Mayson, French and Ryan on Company Law 2017-2018 (34th ed.). Oxford: Oxford University Press, 2017 – N261

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AGRICULTURE BANKING / EDUCATION / COMPETIT LAW / FAMILY LAW / ENERGY / ARBITRATION / EQ / DAMAGES / BUILDING LAW / CHILDREN EDUCATION LEGAL UPDATE COURTS / EVIDENCE / DATA PROTECTION / EUROPEAN ENVIRONMENTAL LAW / J UDGES / PROCEDURE / IN Articles Hunt, R. Companies Act 2014: has your company taken action in respect of it? Irish Tax Review 2017; (1): 77 Eaton, S., Tumelty, M-E. Directors’ duties under the companies act 2014. Commercial Law Practitioner 2017; 24 (5): 135. Statutory instruments Companies Act 2014 (prescribed fee – category 5 liquidators) regulations 2017 – SI 303/2017 Companies Act 2014 (prescribed form – category 5 liquidators) regulations 2017 – SI 302/2017 Companies (Amendment) Act 2017 (commencement) order 2017 – SI 305/217

COMPETITION LAW Library acquisitions Lucey, M.C. Competition Act, 2002. Dublin: Round Hall, 2003 – N266 Articles Murphy, N. The enforcement of EU competition law – in breach of the European Convention on Human Rights? Irish Law Times 2017; 35 (11): 143.

CONSTITUTIONAL LAW Constitutional rights – State Pension Contributory – Damages – Distinguished Conroy v Attorney General and anor [1965] IR 411, Applied Cox v Ireland [1992] 2 IR 503, Distinguished Maher v Minister for Agriculture [2001] 2 IR 139 – (Denham C.J., McKechnie J., Clarke J., MacMenamin J., O’Malley Iseult J. – 27/07/2017) – [2017] IESC 63 P.C. v Minister for Social Protection, Ireland Constitution – Practice and procedures – Art 40.4 of Constitution – [2017] IEHC 411 Manning v Governor of Castlerea Prison (No.3) [High Court] Articles Murphy, N. The injustice of article 40.3.2 of the Irish constitution – remedying Fleming. Irish Law Times 2017; 35 (12): 161.

CONTEMPT Contempt – Prohibition order – Case stated – Appellant seeking orders for the attachment and committal of the respondent for breaching the terms of a prohibition order – Whether prohibition order prohibited the respondent from entering onto lands after the respondent

had acquired co-ownership of those lands – Referred to Competition Authority v Licensed Vintners Association and ors [2009] IEHC 439, Referred to Redwing Ltd v Redwing Forest Products Ltd (1947) 177 LTR 387 – (Laffoy J., Dunne J., O’Malley Iseult J. – 14/06/2017) – [2017] IESC 42 Muller v Shell E&P (Ireland) Ltd

CONTRACT Liability – Contribution – Statute-barred – Applied Hay v O’Grady [1992] 1 IR 210, Applied Paul Doyle v Catherine Banville [2012] IESC 25 – (Denham C.J., Charleton J., O’Malley Iseult J. – 21/07/2017) – [2017] IESC 57 Roche v Wymes Contract – Breach of contract – Contract for sale – [2017] IEHC 395 Tighe v Carey [High Court] Library acquisitions Lawson, R. Exclusion Clauses and Unfair Contract Terms (12th ed.). London: Sweet & Maxwell, 2017 – N18.8

COPYRIGHT Library acquisitions Cornish, G.P. Copyright: interpreting the law for libraries, archives and information services (6th ed.). London: Facet Publishing, 2015 – N114 Pedley, P. The e-copyright handbook. London: Facet Publishing, 2012 – N112.10 Articles Kelly, C. From Playboy to Pirate Bay: copyright and communication to the public in the digital age. Commercial Law Practitioner 2017; 24 (5): 127 Kelly, C. Facilitation of peer-to-peer file sharing by the Pirate Bay and copyright infringement: Stichting Brein v Ziggo BV. Commercial Law Practitioner 2017; (24) (7): 15

COSTS Costs – Taxation – Bankruptcy – Referred to Clarke v Commissioner of An Garda Síochána [2002] 1 IR 207, Referred to Minister for Communications and O’C (M) v W (M) and W (R) [2010] 3 IR 1 – (Denham C.J., Dunne J., Charleton J. – 26/07/2017) – [2017] IESC 58 Minister for Communications, Energy and Natural Resource v Wood Articles Biehler, H. Principles relating to the awarding of costs in cases which do not proceed to a determination. Irish Law Times 2017; (35) 12: 154

COURTS Statutory instruments District court (days and hours) (August sittings) order 2017 – SI 343/2017

CREDIT UNIONS Statutory instruments Credit union fund (ReBo Levy) regulations 2017 – SI 283/2017

CRIMINAL LAW Conviction – Careless driving causing death – Mens rea – Appellant seeking to appeal against Court of Appeal ruling – Whether conviction required proof of mens rea – Referred to DPP v Fergal Cagney [2008] 2 IR 111, Referred to DPP v Michael O’Shea [2015] 12 JIC 1504, Referred to DPP v Peter O’Dwyer [2005] 3 IR 134 – (McKechnie J., Clarke J., MacMenamin J., Laffoy J., O’Malley Iseult J. – 15/06/2017) – [2017] IESC 41 DPP v O’Shea Conviction – Murder – DNA evidence – Not applied R v Robert Watters [2000] EWCA Crim J1019-8, Referred to Regina (Appellant) v FNC (Respondent) [2016] 1 WLR 980 – (Denham C.J., O’Donnell Donal J., Clarke J., Dunne J., O’Malley Iseult J. – 19/07/2017) – [2017] IESC 54 DPP v Wilson Crime and sentencing – Evidence – Adverse inferences drawn from interview – Distinguished DPP v Liam Bolger [2013] IECCA 6, Distinguished DPP v Liam Bolger (No. 2) [2014] IECCA 1 – (Denham C.J., O’Donnell Donal J., McKechnie J., Clarke J., O’Malley Iseult J. – 13/07/2017) – [2017] IESC 53 DPP v Wilson Sentencing – Mitigation – Perjury – Considered D. O’D (No. 2) v DPP [2015] 12 JIC 1004, Referred to DPP v Wharrie [2016] 2 JIC 1502 – (O’Donnell Donal J., McKechnie J., Clarke J., Charleton J., O’Malley Iseult J. – 03/07/2017) – [2017] IESC 47 DPP v Wharrie Crime and Sentencing – Enhanced remission – Extension of time – [2017] IEHC 414 McLoughlin v Governor of Wheatfield Prison [High Court] Crime and Sentencing – R. 59 of the Prison Rules – Enhanced remission – [2017] IEHC 422 Bradley v Minister for Justice and Equality [High Court] Crime and Sentencing – Art. 38 of the Constitution – S. 4 of the Criminal Justice (Theft and Fraud Offences) Act, 2001 – [2017] IEHC 423 Gifford v DPP [High Court]

Acts Criminal Justice Act 2017 – Act No.14 of 2017 – Signed on June 28, 2017 Library acquisitions Cooper, P., Norton, H. Vulnerable People and the Criminal Justice System: a Guide to Law and Practice. Oxford: Oxford University Press, 2017 – M500.Q56 Articles Ward, J. Criminal law (sexual offences) act 2017 and vulnerable witnesses. Irish Criminal Law Journal 2017; 27 (3): 90 Rafferty, B. Rape: struggling with the forces of perception. Irish Law Times 2017; 35 (13): 171 [part 1]. Irish Law Times 2017; (35) 14: 187 [part 2]. O’Malley, T. The new law on sexual offences. Irish Criminal Law Journal 2017; (27) 3: 78. Statutory Instruments Criminal Justice Act 1984 (suspension of detention under section 4(3A)) (persons under 18 years of age) regulations 2017 – SI 380/2017 Criminal Justice Act 2017 (commencement) order 2017 – SI 359/2017 Criminal Justice (Terrorist Offences) Act 2005 (section 42) (restrictive measures concerning certain persons and entities associated with the ISIL (Da’esh) and Al-Qaida organisations) (no. 4) regulations 2017 – SI 382/2017 Criminal Justice (Terrorist Offences) Act 2005 (section 42) (restrictive measures concerning certain persons and entities with a view to combating terrorism) (no.2) regulations 2017 – SI 383/2017

DAMAGES Damages – European Union law – Error of law – Referred to Ewaen Fred Ogieriakhi v Minister for Justice and Equality and ors (No.2) [2014] IEHC 582, Referred to Ogieriakhi v Minister for Justice and ors [2013] IEHC 133 – (Denham C.J., O’Donnell Donal J., McKechnie J., Clarke J., O’Malley Iseult J. – 13/07/2017) – [2017] IESC 52 Ogieriakhi v Minister for Justice and Equality

DATA PROTECTION Library acquisitions Castro-Edwards, J. EU General Data Protection Regulation: A Guide to the New Law. London: Law Society Publishing, 2017 – M209.D5.E95

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TION LAW / EXTRADITION LAW / CONSTITUTIONA QUALITY / INSOLVENCY / CITIZENSHIP / DAMAGES / COMMERCIAL LAW / COMPANY LAW DEFAMATION LEGAL UPDATE N UNION / CONTRACT / COPYRIGHT CRIMINAL LAW NFORMATION TECHNOLOGY / EMPLOYMENT LAW DEFAMATION Defamation – Practice and procedures – Striking out of portions from pleading – [2017] IEHC 436 Maycock v National College of Ireland[High Court]

EDUCATION

Statutory instruments Water Services Act 2014 (extension of suspension of domestic water charges) (amendment) order 2017 – SI 330/2017 Water Services (No. 2) Act 2013 (property vesting day) (no. 10) order 2017 – SI 329/2017

EQUALITY

Statutory instruments Educational Research Centre (establishment) (amendment) order 2017 – SI 309/2017 Industrial training (butchery industry) order 2017 – SI 308/2017 Industrial training (information and communications technology industry) order 2017 – SI 307/2017 Residential institutions statutory fund act 2012 (section 43) (commencement) order 2017 – SI 379/2017

Library acquisitions Trukhtanov, A. Contractual Estoppel. Abingdon: Informa Law from Routledge, 2018 – N384.4

EMPLOYMENT LAW

EUROPEAN UNION

Unlawful discrimination – Jurisdiction – Employment equality law – Appellant seeking to disapply a statutory instrument made by the respondent – Whether appellant had jurisdiction to set aside or disapply substantive law – Referred to Minister for Justice and Commissioner of Garda Síochána v Director of the Equality Tribunal [2010] 2 IR 455, Referred to Revenue and Customs Commissioners v Droog [2016] 10 JIC 0601, Referred to Tormey v Ireland [1985] IR 289 – (Clarke J., MacMenamin J., Laffoy J., Dunne J., O’Malley Iseult J. – 15/06/2017) ≠ [2017] IESC 43 Minister for Justice, Equality and Law Reform v Workplace Relations Commission

Library acquisitions Alexander, N., Walsh, S., Svatos, M. EU Mediation Law Handbook: Regulatory Robustness Ratings for Mediation Regimes. The Netherlands: Kluwer Law International, 2017 – N398.4.E95 Armstrong, K.A. Brexit Time: Leaving the EU – Why, How and When? Cambridge: Cambridge University Press, 2017 – W87.5 Council of Europe. European Union Agency for Fundamental Rights Handbook on European Law relating to access to justice. Luxembourg: Publications Office of the European Union, 2016 – W86 Council of Europe. European Union Agency for Fundamental Rights Handbook on European law relating to the rights of the child. Luxembourg: Publications Office of the European Union, 2017 – W98 Dougan, M. The UK after Brexit: Legal and Policy Challenges. Cambridge: Intersentia Ltd, 2017 – W87.5 European Union Agency for Fundamental Rights. Ensuring justice for hate crime victims: professional perspectives. Luxembourg: Publications Office of the European Union, 2016 – W133 European Union Agency for Fundamental Rights. Severe labour exploitation: workers moving within or into the European Union. Luxembourg: Publications Office of the European Union, 2015 – W130 European Union Agency for Fundamental Rights. Surveillance by intelligence services: fundamental rights safeguards and remedies in the EU: mapping member states’ legal frameworks. Luxembourg: Publications Office of the European Union, 2015 – W98 Hartley, T.C. Civil jurisdiction and judgments in Europe: the Brussels 1 regulation, the Lugano convention, and the Hague choice of court convention.

Library acquisitions Alidadi, K. Religion, Equality and Employment in Europe: The Case for Reasonable Accommodation. Oxford: Hart Publishing, 2017 – N191.2

ENVIRONMENTAL LAW Environment, construction and planning – Dumping of waste – Waste Management Act 1996 – [2017] IEHC 397 Brownfield Restoration Ireland Ltd v Wicklow County Council [High Court] Library acquisitions Klein, D., Carazo, M.P., Doelle, M. The Paris Agreement on Climate Change: Analysis and Commentary. Oxford: Oxford University Press, 2017 – W125 Acts Petroleum and Other Minerals Development (Prohibition of Onshore Hydraulic Fracturing) Act 2017 – Act No. 15 of 2017 – Signed on July 6, 2017 Minerals Development Act 2017 – Act No. 23 of 2017 – Signed on July 26, 2017

Articles Kenna, P. Making economic, social and cultural rights meaningful. Irish Law Times 2017; (35) 14: 191

ESTOPPEL

Oxford: Oxford University Press, 2017 – W73 Hofmann, H.C.H., Ziller, J. Accountability in the EU: the role of the European Ombudsman. Cheltenham: Edward Elgar Publishing Limited, 2017 – W99 Lindsay, A., Berridge, A. The EU merger regulation: substantive issues (5th ed.). London: Sweet & Maxwell, 2017 – W110 Seanad Select Committee. Seanad Select Committee: withdrawal of the United Kingdom from the European Union: Brexit: implications and potential solutions. June 2017 – W87.5 European Union Agency for Fundamental Rights. Violence against children with disabilities: legislation, policies and programmes in the EU. Luxembourg: Publications Office of the European Union, 2015 – W133

EXTRADITION LAW

Articles Murphy, N. European Union law – “a complete system of legal remedies”? Irish Law Times 2017; (35) 13: 175 Maguire, T. State aid: selectivity matters. Irish Tax Review 2017; (1): 86

FAMILY LAW

Statutory instruments European Communities (award of contracts by utility undertakings) (review procedures) (amendment) regulations 2017 – SI 328/2017 European Communities (carriage of dangerous goods by road and use of transportable pressure equipment) (amendment) (no. 2) regulations 2017 – SI 282/2017 European Communities (European small claims procedure and European order for payment) (amendment) regulations 2017 – SI 312/2017 European Communities (intra-community transfers of defence related products) (amendment) regulations 2017 – SI 268/2017 European Communities (marine strategy framework) (amendment) regulations 2017 – SI 265/2017 European Communities (nuclear safety) regulations 2017 – SI 332/2017 European Communities (public authorities’ contracts) (review procedures) (amendment) regulations 2017 – SI 327/2017 European Union (award of concession contracts) (review procedures) regulations 2017 – SI 326/2017 European Union (insurance and reinsurance) (amendment) regulations 2017 – SI 384/2017 European Union (markets in financial instruments) regulations 2017 – SI 375/2017 European Union (passenger ships) (amendment) regulations 2017 – SI 295/2017

European arrest warrant – Surrender – Constitution – Appellant seeking an order setting aside an order of the Supreme Court – Whether the application was directly contrary to the provision of Article 34.4.6o of the Constitution – Referred to Barlow v Minister for Agriculture, Food and the Marine [2016] 10 JIC 2701, Referred to Minister for Justice and Equality v O’Connor [2017] IESC 21, Referred to Minister for Justice Equality and Law Reform v Wharrie [2016] 10 JIC 2705 – (O’Donnell Donal J., McKechnie J., MacMenamin J. – 03/07/2017) – [2017] IESC 48 Minister for Justice and Equality v O’Connor

Polygamous marriage – Public policy – Conflict of laws – Appellant seeking a declaration that his marriage with his first wife was valid as of the date of its inception – Whether Irish law either requires or prohibits the recognition of either or both of the appellant’s two marriages – Distinguished Balmer v Minister for Justice and Equality [2016] IESC 25, Distinguished Nottinghamshire County Council v B [2013] 4 IR 662 – (Denham C.J., O’Donnell Donal J., Clarke J., MacMenamin J., Laffoy J., Charleton J., O’Malley Iseult J. – 15/06/2017) – [2017] IESC 40 H.A.H v S.A.A. Articles Walsh, K. Relocation: best interests in the shadow of presumptions and judicial guidance. Irish Journal of Family Law 2017; 20 (2): 32 Berkery, S. Through the looking glass: the definition, protection and regulation of the family from a child’s rights perspective. Irish Journal of Family Law 2017; 20 (2): 44 Walsh, K., Reynolds, A. We are family. Law Society Gazette 2017; (July): 44 Statutory instruments Child care (amendment) act 2015 (commencement) order 2017 – SI 296/2017 Children and Family Relationships Act 2015 (commencement) order 2017 – SI 355/2017

FINANCE Articles Kennedy, S. Finance Act 2016 changes to the Irish securitisation tax regime. Irish Tax Review 2017; 1: 64

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AGRICULTURE BANKING / EDUCATION / COMPETIT LAW / FAMILY LAW / ENERGY / ARBITRATION / EQ / DAMAGES / BUILDING LAW / CHILDREN EDUCATION LEGAL UPDATE COURTS / EVIDENCE / DATA PROTECTION / EUROPEAN ENVIRONMENTAL LAW / J UDGES / PROCEDURE / IN Statutory instruments National Treasury Management Agency (amendment) act 2000 (delegation of investment functions) order 2017 – SI 331/2017 Finance act 2015 (section 32(2)) (commencement) order 2017 – SI 294/2017 Transparency (directive 2004/109/EC) (amendment) regulations 2017 – SI 336/2017

FINANCIAL SERVICES REGULATION Acts Financial Services and Pensions Ombudsman Act 2017 – Act No. 22 of 2017 – signed on July 26, 2017 Articles Lillis, N., Synnott, A. Ireland takes the first step towards creating a central register of beneficial ownership. Irish Tax Review 2017; 1: 152

FISHERIES Acts Inland Fisheries (Amendment) Act 2017 – Act No. 16 of 2017 – signed on July 6, 2017 Statutory instruments Inland fisheries (amendment) act 2017 (commencement) order 2017 – SI 322/2017 Inland fisheries (amendment) act 2017 (commencement) order 2017 – SI 322/2017

FRAUD Library acquisitions Snow, D. Universal Scams and Fraud Detection. USA: Patriot Way, 2014 – M547

GOVERNMENT Acts National Shared Services Office Act 2017 – Act No. 26 of 2017 – Signed on July 26, 2017 Independent Reporting Commission Act 2017 – Act No. 25 of 2017 – Signed on July 26, 2017 Ministers and Secretaries (Amendment) Act 2017 – Act No. 18 of 2017 – Signed on July 19, 2017 Statutory instruments Commission of investigation (national asset management agency) order 2017 – SI 267/2017 Independent Reporting Commission act 2017 (commencement) order 2017 – SI 369/2017

GUARANTEES Articles Good, J. Recent developments in the law of guarantees. The Bar Review 2017; 22 (4): 102

HEALTH Health – Medical treatment – Respiratory and clinical deterioration – [2017] IEHC 399 Health Service Executive v J.M. A Ward of Court [High Court] Statutory instruments European Communities (certain contaminants in foodstuffs) (amendment) regulations 2017 – SI 377/2017 European Union (addition of vitamins and minerals and of certain other substances to foods) regulations 2017 – SI 376/2017 European Communities (official controls on the import of food of non-animal origin) (amendment) regulations 2017 – SI 319/2017 European Union (cosmetic products) (amendment) regulations 2017 – SI 297/2017 European Union (disclosure of non-financial and diversity information by certain large undertakings and groups) regulations 2017 – SI 360/2017 European Union (manufacture, presentation and sale of tobacco and related products) (amendment) regulations 2017 – SI 252/2017 European Union (special conditions governing the import of certain food from certain third countries due to contamination risk by aflatoxins) (amendment) regulations 2017 – SI 251/2017 European Union (specific conditions applicable to the introduction into the union of consignments from certain third countries due to microbiological contamination) regulations 2017 – SI 325/2017 Health professionals (reduction of payments to community pharmacy contractors) (amendment) regulations 2017 – SI 272/2017 Pharmaceutical society of Ireland (receiving and recording of evidence by committee of inquiry) rules 2017 – SI 274/2017 Psychologists registration board (establishment day) order 2017 – SI 324/2017

HUMAN RIGHTS Library acquisitions Gearty, C. On Fantasy Island: Britain, Europe, and Human Rights. Oxford: Oxford University Press, 2016 – C200 Leach, P. Taking a Case to the European

Court of Human Rights (4th ed.). Oxford: Oxford University Press, 2017 – C200 Rainey, B., White, R.C.A., Ovey, C., Wicks, E., Jacobs, F.G. Jacobs, White & Ovey: The European Convention on Human Rights (7th ed.). Oxford: Oxford University Press, 2017 – C200 Smet, S., Brems, E. When Human Rights Clash at the European Court of Human Rights: Conflict or Harmony? Oxford: Oxford University Press, 2017 – C200 Wright, J. Tort Law and Human Rights (2nd ed.). Oxford: Hart Publishing, 2017 – C200

IMMIGRATION Immigration and asylum – Deportation – Risk of inhuman or degrading treatment – Applied Meadows v Minister for Justice, Equality and Law Reform [2010] 2 IR 701, Applied Saadi v Italy (App no 37201/06) [2008] INLR 621, Referred to YY v Minister for Justice and Equality [2017] IEHC 176 – (Denham C.J., O’Donnell Donal J., MacMenamin J., Dunne J., O’Malley Iseult J. – 27/07/2017) – [2017] IESC 61 Y.Y. v Minister for Justice and Equality Immigration and asylum – Refugee status – Abuse of process – Distinguished Minister for Justice v Zigelis [2012] IEHC 12, Distinguished Sivsivadze v Minister for Justice [2015] 6 JIC 2303 – (Clarke J., Laffoy J., Dunne J. – 14/06/2017) – [2017] IESC 45 D.T. v Refugee Appeals Tribunal Asylum, immigration and nationality – S.5 of Illegal Immigrants (Trafficking) Act 2000 – S. 3(11) of the Immigration Act, 1999 – [2017] IEHC 404 V.M.M v Minister for Justice, Equality and Law Reform [High Court] Asylum, immigration and nationality – Revocation of deportation order – Interim stay [2017] IEHC 409 D.E. (infant) v Minister for Justice and Equality (No. 3) [High Court] Library acquisitions Council of Europe. European Union Agency for Fundamental Rights Handbook on European law relating to asylum, borders and immigration (2nd ed.). Luxembourg: Publications Office of the European Union, 2016 – W83.1 European Union Agency for Fundamental Rights. Cost of exclusion from healthcare: the case of migrants in an irregular situation. Luxembourg: Publications Office of the European Union, 2015 – W129.5 Articles Little, C., Hickey, M. Remains of the day. Law Society Gazette 2017; (July): 52 Statutory instruments Immigration Act 2004 (registration certificate fee) (amendment) regulations

2017 – SI 277/2017 Immigration Act 2004 (visas) (amendment) order 2017 – SI 264/2017

INFORMATION TECHNOLOGY Library acquisitions Dinwoodie, G.B. Secondary Liability of Internet Service Providers. Switzerland: Springer-Verlag, 2017 – N347.4

INSOLVENCY Library acquisitions Anderson, H. The Framework for Corporate Insolvency Law. Oxford: Oxford University Press, 2017 – N312 Davis, G., Haywood, M. Butterworths Insolvency Law Handbook (19th ed.). London: LexisNexis, 2017 – N312

INSURANCE Insurance – Practice and procedures – O.31, r. 20(3) of the Rules of the Superior Courts – [2017] IEHC 427 Lagan Construction Group Holdings Ltd v McArdle [High Court] Library acquisitions Clarke, M.A. The Law of Liability Insurance (2nd ed.). London: Informa Law, 2017 – N290.Z45

INTERNATIONAL LAW International law – European Arrest Warrant Act, 2003 – Execution of European Arrest Warrant (‘EAW’) – [2017] IEHC 417 Minister for Justice and Equality v Jaworski [High Court] International Law – Extradition – Execution of European Arrest Warrant (‘EAW’) – [2017] IEHC 418 Minister for Justice and Equality v Ptak [High Court] International law – Extradition – European Arrest Warrant Act 2003 – [2017] IEHC 419 Minister for Justice and Equality v Zielinski [High Court] International law – Extradition – European Arrest Warrant Act 2003 –[2017] IEHC 420 Minister for Justice and Equality v Stawera [High Court] International law – Extradition – European Arrest Warrant Act 2003 – [2017] IEHC 42 Minister for Justice and Equality v Sevik [High Court] Library acquisitions Auby, J-B. Globalisation, Law and the State. Oxford: Hart Publishing, 2017 – C100

AGRICULTURE BANKING / EDUCATION / COMPETIT LAW / FAMILY LAW / ENERGY / ARBITRATION / EQ xxxii

LEGAL UPDATE : November 2017

TION LAW / EXTRADITION LAW / CONSTITUTIONA QUALITY / INSOLVENCY / CITIZENSHIP / DAMAGES / COMMERCIAL LAW / COMPANY LAW DEFAMATION LEGAL UPDATE N UNION / CONTRACT / COPYRIGHT CRIMINAL LAW NFORMATION TECHNOLOGY / EMPLOYMENT LAW JUDICIAL REVIEW

LEGAL PROFESSION

Library acquisitions Supperstone, M., Goudie, J., Walker, P. Supperstone Goudie & Walker: Judicial Review (6th ed.). London: LexisNexis, 2017 – M306

Library acquisitions Goodman, J. Robots in Law: How Artificial Intelligence is Transforming Legal Services. London: Ark Group, 2016 – L50 Hedley, M. The Modern Judge: Power, Responsibility and Society’s Expectations. Bristol: LexisNexis, 2016 – L241 Law Society of Ireland. Law Directory 2017. Dublin: Law Society of Ireland, 2017 – REF Miller, E., Hodgson, K. LinkedIn for Lawyers: Developing a Profile to Grow your Practice. London: Ark Group, 2015 – L50 Mills, C. Making Every Six Minutes Count. London: Ark Group, 2016 – L50 Slater, L., Cecchi-Dimeglio, P., Gillette, P.K. Beyond Bias: Unleashing the Potential of Women in Law. London: Ark Group, 2017 – L85 Susskind, R.E. Tomorrow’s Lawyers: An Introduction to your Future (2nd ed.). Oxford: Oxford University Press, 2017 – L85 Vogenauer, S., Weatherill, S. General Principles of Law: European and Comparative Perspectives. Oxford: Hart Publishing, 2017 – L26

JURISPRUDENCE Jurisdiction – Discovery – Documents – [2017] IECA 161 Kelly v National University of Ireland Dublin aka UCD [Court of Appeal] Articles Keating, A. A concept of interpretative methodology. Irish Law Times 2017; 35 (11): 139

LAND LAW Land – Legal fees – Right to family home – Applied Dunlop Pneumatic Tyre Company v New Garage and Motor Company [1915] AC 79, Applied Pat O’Donnell & Co. Ltd v Truck and Machinery Sales Ltd [1998] 4 IR 191 – (McKechnie J., Charleton J., O’Malley Iseult J. – 15/03/2017) – [2017] IESC 62 Launceston Property Finance Ltd v Burke Land and conveyancing – S.3 of the Land and Conveyancing Law Reform Act 2013 – S.62 (7) of the Registration of Title Act 1964 – [2017] IEHC 433 Start Mortgages Ltd v Kavanagh [High Court]

LANDLORD AND TENANT Landlord and tenant – s. 124 Residential Tenancies Act, 2004 – Private Residential Tenancies Board – [2017] IEHC 424 Foley v Johnson [High Court]

LEGAL HISTORY Library acquisitions Gunther, G. Learned Hand: The Man and the Judge (2nd ed.). New York: Oxford University Press, 2010 – L401.U48 Fiss, O. Pillars of Justice: Lawyers and the Liberal Tradition. USA: Harvard University Press, 2017 – L401 Hardiman, A. Joyce in Court. London: Head of Zeus, 2017 – L401

Articles O’Sullivan, R. Wishing well. Law Society Gazette 2017; (July): 56

LIBEL Libel – Damages – Proportionality – Considered Barrett v Independent Newspapers [1986] IR 13, Considered Leech v Independent Newspaper (Ireland) Limited [2015] 2 IR 214, Referred to McDonagh v Sunday Newspapers Ltd [2017] IESC 46 – (Denham C.J., O’Donnell Donal J., McKechnie J., MacMenamin J., Dunne J., Charleton J., O’Malley Iseult J. – 27/07/2017) – [2017] IESC 59 McDonagh v Sunday Newspapers Ltd

LICENSING Library acquisitions Cassidy, C., Bracken, T. The Annual Licensing Court: The Essential 21st Century Guide. Dublin: Clarus Press, 2017 – N186.4.C5 Statutory instruments Intoxicating Liquor Act 2003 (section 21) (Páirc Uí Chaoimh, Cork) regulations 2017 – SI 281/2017

MEDICAL LAW Library acquisitions Guerét, M. Irish Medical Directory 2017-2018: The Directory of Irish Healthcare. Dublin: Irish Medical Directory, 2017 – M608.0022.C5

Articles Sheikh, A.A. Medico-legal issues at the end of life: recent highlights. Medico-Legal Journal of Ireland 2017; 23 (1): 2 Moloney, C. Time for change in the Mental Health Act 2001: the law must recognise children’s capacities to consent to and refuse medical treatment. Medico-Legal Journal of Ireland 2017; 23 (1): 8

MEDICAL NEGLIGENCE Health – Medical negligence – s.75 and 76 of Medical Practitioners Act 2007 – [2017] IEHC 401 Medical Council v Lohan-Mannion [High Court] Articles O’Mahony, D. A fair trial in clinical negligence: are the procedural dice loaded? A commentary. Medico-Legal Journal of Ireland 2017; 23 (1): 20

MENTAL HEALTH Articles O’Mahony, C. The impact of international human rights law on Irish mental health and mental capacity law reform. Medico-Legal Journal of Ireland 2017; 23 (1): 24

NEGLIGENCE Negligence – Bill of costs – Instructions fee – Referred to Bourbon (A minor suing by his mother and next friend) v Ward and ors [High Court] [2012] 2 JIC 1701 – (Denham C.J., O’Donnell Donal J., McKechnie J., Clarke J., Laffoy J. – 15/06/2017) – [2017] IESC 44 Sheehan v Corr Library acquisitions Buckley, R.A., Grubb, A. Buckley: The Law of Negligence and Nuisance (6th ed.). London: LexisNexis, 2017 – N33.3

PENSIONS Articles Beall, J., Faughnan, J. Cross-border pension planning between Ireland and the US. Irish Tax Review 2017; (1): 117 Statutory instruments Córas Iompair Éireann pension scheme for regular wages staff (amendment) scheme (confirmation) order 2017 – SI 373/2017 Córas Iompair Éireann pension scheme for regular wages staff (amendment) scheme (confirmation) (no. 2) order 2017 – SI 378/2017 Córas Iompair Éireann superannuation scheme 1951 (amendment) scheme (confirmation) order 2017 – SI 374/2017 Broadcasting Authority of Ireland (superannuation) scheme 2017 – SI 269/2017

PERSONAL INJURIES Articles Danaher, G., Ó Géibheannaigh, R. Accidents abroad: some emerging case law. The Bar Review 2017; 22 (4): 110

PERSONAL INSOLVENCY AND BANKRUPTCY Insolvency – S. 105 of the Personal Insolvency Acts 2012 – 2015 – [2017] IEHC 437 RE: McDonnell (a Debtor) [High Court]

PLANNING AND ENVIRONMENTAL LAW Planning and development – Constitutional rights – Statutory injunction – Referred to Bailey v Kilvinane Windfarm Ltd [2016] 3 JIC 1602, Referred to Sweetman v Shell E&P Ireland Ltd [2016] 2 JIC 0303, Considered Wicklow Co Council v Kinsella [2015] IEHC 229 – (Denham C.J., O’Donnell Donal J., McKechnie J., Laffoy J., Dunne J. – 19/05/2017) – [2017] IESC 25 County Council of Meath v Murray Planning and development – judicial review – costs – Referred to Kenny (plaintiff/appellant) v An Bord Pleanála (defendant/respondent) [2008] 4 JIC 1003, Referred to Kenny v An Bord Pleanála (No 1) [2001] 1 IR 565, Referred to Kenny v An Bord Pleanála (No 2) [2001] 1 IR 704 – (Denham C.J., MacMenamin J., O’Malley Iseult J. – 19/07/2017) – [2017] IESC 55 Kenny v An Bord Pleanála Acts Planning and Development (Amendment) Act 2017 – Act No. 20 of 2017 – signed on July 19, 2017 Statutory instruments Planning and Development Act 2000 (designation of strategic development zone: Ireland west airport Knock) order 2017 – SI 266/2017 Planning and development (amendment) regulations 2017 – SI 342/2017 Planning and development (housing) and residential tenancies act 2016 (commencement of certain provisions) (no. 3) order 2017 – SI 270/2017 Planning and development (housing) and residential tenancies act 2016 (commencement of section 28(2)) order 2017 – SI 341/2017 Planning and development (strategic housing development) regulations 2017 – SI 271/2017

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AGRICULTURE BANKING / EDUCATION / COMPETIT LAW / FAMILY LAW / ENERGY / ARBITRATION / EQ / DAMAGES / BUILDING LAW / CHILDREN EDUCATION LEGAL UPDATE COURTS / EVIDENCE / DATA PROTECTION / EUROPEAN ENVIRONMENTAL LAW / J UDGES / PROCEDURE / IN PRACTICE AND PROCEDURE Grounds of appeal – Additional evidence – Register of solicitors – Appellant seeking to expand the grounds of appeal and admit additional evidence – Referred to Murphy v Minister for Defence [1991] 2 IR 161 – (Clarke J., MacMenamin J., Laffoy J. – 14/06/2017) – [2017] IESC 39 Law Society v Coleman Practice and procedure – Appeal – Role of appellate court – Findings of fact – Substitution for first instance decision – Referred to McNamee v The Revenue Commissioners [2016] 6 JIC 2204, Referred to Ryanair Ltd v Billigfluege.de GmbH and ors [2015] IESC 11 – (Denham C.J., O’Donnell Donal J., McKechnie J., MacMenamin J., Dunne J., Charleton J., O’Malley Iseult J. – 28/06/2017) – [2017] IESC 46 McDonagh v Sunday Newspapers Ltd Prohibition – Damages – Constitutional law – Referred to In re L and another (Children) (preliminary finding: power to reverse) [Supreme Court] [2013] 1 WLR 634, Referred to Nash v DPP [2015] 1 JIC 2906, Referred to Richards v Judge O’Donoghue and DPP [2016] IESC 74 – (Denham C.J., O’Donnell Donal J., Clarke J., Dunne J., Charleton J. – 13/07/2017) – [2017] IESC 51 Nash v DPP Scope of appeal – Leave to appeal – Constitutional construction – Applied East Donegal Co-Operative Livestock Mart Ltd v Attorney General [1970] IR 317, Applied Grace and anor v An Bord Pleanála [2017] IESC 10, Referred to McDonagh v Sunday Newspapers Ltd [2017] IESC 59 – (Clarke J., MacMenamin J., Dunne J. – 27/07/2017) – [2017] IESC 60 Callaghan v An Bord Pleanála Practice and procedures – O. 84, r. 22(4)(1) of the Rules of the Superior Courts 1986 – Duty to disclose – [2017] IEHC 384 Murtagh v Judge Kevin Kilrane [High Court] Practice and procedures – Costs – Costs should follow event – [2017] IEHC 385 EBS Ltd v Kean [High Court] Practice and procedures – Exceptional circumstances – Alternative remedy – [2017] IEHC 396 Manning v McCarthy (No. 2) [High Court] Practice and procedures – O.8 r.1 of The Rules of the Superior Court – Expiration of time limit – [2017] IEHC 410 Bellante v Fitzgerald [High Court] Practice and procedures – O.31, r. 21 of the Rules of the Superior Courts – Striking off – [2017] IEHC 425

Ryanair Ltd v Irish Municipal [High Court] Practice and procedures – Data protection – O.50, r.4 of the Rules of the Superior Courts (‘RSC’) – [2017] IEHC 431 Matute v Medtronic Ireland Ltd [High Court] Articles Stafford, P. Appeals to the Supreme Court: practice and procedure following the creation of the Court of Appeal. Commercial Law Practitioner 2017; 24 (7): 147

PRISONS Articles O’Donnell, I. Ireland’s shrinking prison population. Irish Criminal Law Journal 2017; 27 (3): 70 Statutory instruments Prison (amendment) rules 2017 – SI 276/2017

PROBATE Library acquisitions Dew, R., Pickering, L. Parker’s Will Precedents (9th ed.). Haywards Heath: Bloomsbury Professional Ltd., 2017 – N125

PROPERTY Property and conveyancing – Assignment of mortgages – Appointment of receiver – [2017] IEHC 400 Tyrell v Mahon [High Court] Property and conveyancing – Right of possession – S.31 of the Registration of the Title Act 1964 – [2017] IEHC 440 Údarás Eitliochta na hEireann v Monks [High Court] Articles Regan, D. A shot at the title. Law Society Gazette 2017; (July): 38

RES JUDICATA Library acquisitions van de Velden, J. Finality in Litigation: The Law and Practice of Preclusion: Res Judicata (Merger and Estoppel), Abuse of Process and Recognition of Foreign Judgments. The Netherlands: Kluwer Law International, 2017 – N384.5

REVENUE Revenue – Taxes Consolidation Act 1997 – Refusal to grant tax exemption – [2017] IEHC 416 Sarlingford Ltd v Appeal Commissioner Kelly [High Court]

Articles Ruane, S., Wallace, P. Is there a time limit for historical revenue queries? Irish Tax Review 2017; (1): 145

ROAD TRAFFIC Articles O’Connell, L. The highs and lows of the Road Traffic Act 2016. The Bar Review 2017; 22 (4): 106 Statutory instruments Road Traffic Act 2010 (impairment testing) (amendment) regulations 2017 – SI 370/2017 Road Traffic Act 2010 (section 44(3)) (prescribed notice) regulations 2017 – SI 300/2017 Road Traffic Act 2016 (sections 40 and 41) (commencement) order 2017 – SI 301/2017 Road traffic (construction and use of vehicles) (amendment) regulations 2017 – SI 320/2017 Road traffic (recognition of foreign driving licences) (British Columbia) order 2017 – SI 372/2017

SOCIAL WELFARE Statutory instruments Social welfare (consolidated claims, payments and control) (amendment) (no. 5) (treatment benefit) regulations 2017 – SI 381/2017

SPORT Acts Rugby World Cup 2023 Act 2017 – Act No. 17 of 2017 – signed on July 13, 2017 Statutory instruments Rugby World Cup 2023 Act 2017 (commencement) order 2017 – SI 323/2017

STATUTORY INTERPRETATION Statutory interpretation – Freedom of Information Act 1997 – Questions of general public importance – Applied Dunne v Minister for Fisheries [1984] IR 230, Distinguished Scottish Borders Council v Scottish Ministers [2012] CSIH 79 – (O’Donnell Donal J., McKechnie J., Clarke J., Laffoy J., Dunne J. – 11/06/2017) – [2017] IESC 64 Kelly v Information Commissioner

SUCCESSION Articles Keogan, A. International succession

planning: legal and taxation considerations in the context of the global citizen. Irish Tax Review 2017; (1): 108

TAXATION Taxation – O.99 r.38 Rules of the Superior Courts – Review – [2017] IEHC 386 Doyle v Guardian Group Ltd [High Court] Taxation – Practice Direction HC 71 – Order 99, rule 1B – [2017] IEHC 355 Heeney v DePuy International Ltd [High Court] Taxation – Bill of costs – Payment on account of costs pending taxation – [2017] IEHC 413 Brennan v DePuy International Limited [High Court] Library acquisitions Djanogly, C., Rudling, D. Tolley’s VAT Cases 2017 (32nd ed.). London: LexisNexis, 2017 – M337.45.Z2 Martyn, J., Reck, P., Cooney, T. Taxation Summary, Finance Act 2016 (41st ed.). Dublin: Irish Tax Institute, 2017 – M335.C5 Walton, K., Djanogly, C. Tolley’s Tax Cases 2017 (41st ed.). London: LexisNexis, 2017 – M335 Articles Hawkins, J., O’Loughlin, J. Brexit: How to navigate certainty and uncertainty. Irish Tax Review 2017; (1): 81 Hogan, C. Capital acquisitions tax update: Finance Act 2016. Irish Tax Review 2017; (1): 73 Coakes, A., Tobin, E. (Life,) death and taxes: inheritance tax in the UK including commentary from an Irish capital tax basis. Irish Tax Review 2017; (1): 100 Vale, P. McMahon, B. New tax landscape for Irish property funds: Finance Act 2016. Irish Tax Review 2017; (1): 58 Duffy, D., O’Donovan, S. Protecting against VAT fraud. Irish Tax Review 2017; (1): 127 Lynch, L. Revised entrepreneur relief: recent developments. Irish Tax Review 2017; (1): 68 McNally, J. SAF-T in numbers? An eye on tax compliance developments in Europe. Irish Tax Review 2017; (1): 95 Duggan, G. The Tax Appeals Commission: the first year. Irish Tax Review 2017; (1): 138 Brennan, P. VAT input deduction: common practice and the law. Irish Tax Review 2017; (1): 132 Statutory instruments Taxes consolidation act 1997 (accelerated capital allowances for energy efficient equipment) (amendment) (no. 1) order 2017 – SI 306/2017

AGRICULTURE BANKING / EDUCATION / COMPETIT LAW / FAMILY LAW / ENERGY / ARBITRATION / EQ xxxiv

LEGAL UPDATE : November 2017

TION LAW / EXTRADITION LAW / CONSTITUTIONA QUALITY / INSOLVENCY / CITIZENSHIP / DAMAGES / COMMERCIAL LAW / COMPANY LAW DEFAMATION LEGAL UPDATE N UNION / CONTRACT / COPYRIGHT CRIMINAL LAW NFORMATION TECHNOLOGY / EMPLOYMENT LAW TORT Tort – Damages and restitution – Personal injuries – [2017] IEHC 336 Ward (A minor) v Commissioners of Public Works in Ireland [High Court] Tort – Personal injury – Principles of discovery – [2017] IEHC 394 Walsh v Health Service Executive [High Court] Tort – Damages and restitution – Road traffic accident – [2017] IEHC 390 Duffy v Lyons [High Court] Tort – Damages and restitution – Trip and fall – [2017] IEHC 406 Cronin v Ardkeen Sales Ltd T/A Londis [High Court] Tort – Accident – Motorcycle accident – [2017] IEHC 415 McGovern v Tully [High Court] Tort – Damages and restitution – Slip and fall on vestibule floor – [2017] IEHC 430 Fagan v Dunnes Stores [High Court] Tort – Road traffic accident – Damages and restitution – [2017] IEHC 434 Flynn v South Tipperary County Council [High Court] Tort – Personal injury – Nature and extent of injury – [2017] IEHC 441 Powney v Bovale Construction Ltd [High Court]

TRANSPORT Statutory instruments European Communities (road vehicles: entry into service) (amendment) regulations 2017 – SI 279/2017 European Communities (road vehicles: type-approval) (amendment) regulations 2017 – SI 280/2017 European Union (facilitation of cross-border exchange of information on road-safety-related traffic offences) regulations 2017 – SI 371/2017 European Union (passenger ships) (amendment) regulations 2017 – SI 295/2017

TRIBUNAL OF INQUIRY Library acquisitions Blom-Cooper, L. Public Inquiries: Wrong Route on Bloody Sunday. Oxford: Hart Publishing, 2017 – N398.1

WHISTLEBLOWERS Articles O’Connell, A. Whistle-stop tour. Law Society Gazette 2017; (July): 48 Bills initiated in Dáil Éireann during the period June 22, 2017, to September 27, 2017 [pmb]: Private Members’ Bills are proposals for legislation in Ireland

initiated by members of the Dáil or Seanad. Other Bills are initiated by the Government. Rugby World Cup 2023 Bill 2017 – Bill 78/2014 Waste Reduction Bill 2017 – Bill 80/2017 Legal Metrology (Measuring Instruments) Bill 2017 – Bill 81/2017 Thirty-fifth Amendment of the Constitution (Protection of Pension Property Rights) Bill 2017 – Bill 82/2017 [pmb] – Deputy Willie O’Dea Rent Transparency Bill 2017 – Bill 85/2017 [pmb] – Deputy Noel Rock Equality (Miscellaneous Provisions) Bill 2017 – Bill 87/2015 [pmb] – Deputy Jim O’Callaghan and Deputy Fiona O’Loughlin Education (Regulation of Voluntary Contributions in Schools) Bill 2017 – Bill 90/2017 [pmb] – Deputy Carol Nolan Planning and Development (Amendment) (No. 2) Bill 2017 – Bill 91/2017 Planning and Development (Rapid Broadband) Bill 2017 – Bill 93/2017 [pmb] – Deputy James Lawless Social Welfare, Pensions and Civil Registration Bill 2017 – Bill 94/2017 Roads (Amendment) Bill 2017 – Bill 95/2017 [pmb] – Deputy Aengus Ó Snodaigh Genuine Progress Indicators and National Distributional Accounts Bill 2017 – Bill 96/2017 [pmb] – Deputy Brendan Howlin Ministers and Secretaries (Amendment) Bill 2017 – Bill 97/2017 Education (Inspection of Individual Education Plans for Children with Special Needs) Bill 2017 – Bill 98/2017 [pmb] – Deputy Carol Nolan Small Unmanned Aircraft (Drones) Bill 2017 – Bill 99/2017 [pmb] – Deputy James Lawless Defamation (Amendment) Bill 2017 – Bill 102/2017 [pmb] – Deputy Róisín Shortall and Deputy Catherine Murphy Thirty-fifth Amendment of the Constitution (Blasphemy) Bill 2017 – Bill 103/2017 [pmb] – Deputy Catherine Murphy and Deputy Róisín Shortall Waste Reduction (Miscellaneous Provisions) Bill 2017 – Bill 104/2017 [pmb] – Deputy Brian Stanley Island Fisheries (Heritage Licence) Bill 2017 – Bill 105/2017 [pmb] – Deputy Martin Kenny, Deputy Martin Ferris and Deputy Pearse Doherty Court Funds Administration Bill 2017 – Bill 106/2017 [pmb] – Deputy John McGuinness Road Traffic (Amendment) Bill 2017 –

Bill 108/2017 National Archives (Amendment) Bill 2017 – Bill 110/2017 Bills initiated in Seanad Éireann during the period June 22, 2017, to September 27, 2017 National Housing Co-operative Bill 2017 – Bill 84/2017 Mortgage Arrears Resolution (Family Home) Bill 2017 – Bill 88/2017 [pmb] – Deputy Michael McGrath Life Saving Equipment Bill 2017 – Bill 92/2016 [pmb] – Senator Keith Swanick, Senator Diarmuid Wilson, Senator Robbie Gallagher and Senator Paul Daly Education (Welfare) (Amendment) Bill 2017 – Bill 109/2017 [pmb] – Senator Aodhan Ó Ríordáin, Senator Gerald Nash and Senator Kevin Humphreys Progress of Bills and Bills amended during the period June 22, 2017, to September 27, 2017 Education (Admission to Schools) Bill 2016 – Bill 58/2016 – Committee Stage Civil Liability (Amendment) Bill 2017 – Bill 1/2017 – Committee Stage Criminal Justice (Victims of Crime) Bill 2016 – Bill 121/2016 – Report Stage – Passed by Dáil Éireann Financial Services and Pensions Ombudsman Bill 2017 – Bill 59/2017 – Report Stage – Passed by Dáil Éireann Health and Social Care Professionals (Amendment) Bill 2017 – Bill 76/2017 – Committee Stage Mediation Bill 2017 – Bill 20/2017 – Committee Stage – Report Stage – Passed by Dáil Éireann Mental Health (Amendment) (No. 2) Bill 2017 – Bill 23/2017 – Committee Stage – Report Stage – Passed by Dáil Éireann Minerals Development Bill 2015 – Bill 69/2015 – Report Stage – Passed by Dáil Éireann National Shared Services Office Bill 2016 – Bill 20/2016 – Committee Stage – Report Stage Planning and Development (Amendment) (No. 2) Bill 2017 – Bill 91/2017 – Committee Stage – Passed by Dáil Éireann Rugby World Cup 2023 Bill 2017 – Bill 78/2017 – Committee Stage – Passed by Dáil Éireann Thirty-Fifth Amendment of the Constitution (Divorce) Bill 2016 – Bill 57/2016 – Committee Stage Adoption (Amendment) Bill 2016 – Bill 23/2016 – Committee Stage Autism Spectrum Disorder Bill 2017 – Bill 61/2017 – Committee Stage Central Bank and Financial Services Authority of Ireland (amendment) Bill 2014 – Bill 88/2014 – Committee Stage

Intoxicating Liquor (Amendment) Bill 2017 – Bill 26/2017 – Committee Stage – Passed by Seanad Éireann Mediation Bill 2017 – Bill 20/2017 – Committee Stage Planning and Development (Amendment) (No. 2) Bill 2017 – Bill 91/2017 – Committee Stage (Initiated in Seanad) Prohibition of the Exploration and Extraction of Onshore Petroleum Bill 2016 – Bill 37/2016 – Committee Stage Recognition of Irish Sign Language for the Deaf Community Bill 2016 – Bill 78/2016 – Committee Stage For up-to-date information please check the following websites: Bills and legislation – http://www.oireachtas.ie/parliament/ Government Legislation Programme updated September 19, 2017 – http://www.taoiseach.gov.ie/eng/Taoise ach_and_Government/Government_Legi slation_Programme/ Supreme Court Determinations – Leave to Appeal from the High Court Granted Published on Courts.ie –June 22, 2017, to September 27, 2017 XG v Refugee Applications Commissioner – [2017] IESCDET 66 – Leave to appeal from the High Court granted on 23/06/2017 – (Denham C.J., Clarke J, MacMenamin J) IG v Refugee Applications Commissioner – [2017] IESCDET 65 – Leave to appeal from the High Court granted on 23/06/2017 – (Denham C.J., Clarke J, MacMenamin J.) FG v Refugee Applications Commissioner – [2017] IESCDET 64 – Leave to appeal from the High Court granted on 23/06/2017 – (Denham C.J., Clarke J, MacMenamin J.) Kerins v Deputy McGuinness and ors – [2017] IESCDET 77 – Leave to appeal from the High Court granted on 10/07/2017 – (Denham C.J., Clarke J, O’Malley J.) E (an infant) v Minister for Justice and Equality and ors – [2017] IESCDET 85 – Leave to appeal from the High Court granted on 25/07/2017 – (Denham C.J., Clarke J, O’Malley J) An Taisce – The National Trust for Ireland v McTigue Quarries Limited and ors – [2017] IESCDET 90 – Leave to appeal from the High Court granted on 28/07/2017 – (Clarke J, MacMenamin J., O’Malley J) For up-to-date information please check the courts website – http://www.courts.ie/Judgments.nsf /FrmDeterminations?OpenForm&l=en

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FEATURE

Protecting children’s rights

This year’s McGuinness Fellow, BEATRICE VANCE BL, has been working with the Children’s Rights Alliance to improve the lot of children across Ireland, Europe and beyond.

The Alliance held a seminar on the Bill on October 3, 2016, at which I had the chance to meet the Tánaiste, who opened the event, as well as Prof. Geoffrey Shannon, Founding Patron of the Children’s Rights Alliance and the Special Rapporteur on Child Protection. I, along with my colleagues in the Alliance, welcomed the enactment of a large part of the Bill in early 2017.1

Child Summit In September 2016, the Alliance, with the Department of Children and Youth In July 2016, I was delighted to become the second Children’s Rights Alliance

Affairs, co-hosted the first Child Summit in Croke Park. This was a national

and The Bar of Ireland Catherine McGuinness Fellow, succeeding Catríona

symposium to look at recommendations made by the UN Children’s Committee

Doherty BL. This prestigious Fellowship is named in honour of one of Ireland’s

in 2016, following its examination of Ireland’s children’s rights record. Two

greatest children’s rights champions, Judge Catherine McGuinness, former

members of the Committee addressed attendees: Gehad Madi and Prof. Kirsten

member of the Supreme Court of Ireland and member of the Council of State.

Sandberg. Young people from the Alliance and UNICEF Ireland’s ‘Picture Your

The Children’s Rights Alliance unites over 100 members working together to

Rights’ project team also addressed attendees about the issues facing children

make Ireland one of the best places in the world to be a child. The Fellowship runs for one year and the fellow works as part of the Alliance’s legal and policy team. The aim is that the fellow adds value to the work of the Alliance by providing legal expertise as a qualified barrister. In return, the fellow is provided with a unique developmental opportunity to enhance their reputation and future prospects.

Influencing legislation My year began supporting the team with the drafting of a position paper on the Criminal Law (Sexual Offences) Bill 2015. This involved comparing the Bill with current legislation, conducting a gap analysis and assessing whether the United Nations Convention on the Rights of the Child (UNCRC) and European legal standards were met in the Bill. It was great to see the final policy paper referred to by members of the Oireachtas in Dáil debates, which I attended.

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THE BAR REVIEW : Volume 22; Number 5 – November 2017

From left: Beatrice Vance BL; Judge Catherine McGuinness; and, Catríona Doherty BL at the access to justice event in the Distillery Building.

FEATURE

in Ireland. Minister for Children and Youth Affairs, Dr Catherine Zappone TD, addressed the event, alongside other prominent children’s rights champions including Dr Niall Muldoon, Ombudsman for Children, and Prof. Geoffrey Shannon. This event highlighted both Ireland’s achievements and shortcomings in implementing the UNCRC.

Education and training Later in September I worked with Julie Ahern, the Alliance’s Membership and Public Affairs Officer, in delivering know your rights training to a range of second-tier advice givers and practitioners in St Patrick’s University Hospital. The Alliance and the Irish Council for Civil Liberties have produced a guide on children’s rights and entitlements in plain language. The training encompassed legal sources and focused on the rights of child service users in healthcare settings. In November 2016, the Alliance hosted an access to justice seminar in the Distillery Building, in association with The Bar of Ireland and supported by the Family Lawyers Association of Ireland. Paul McGarry SC, Chairman of the Council of The Bar of Ireland, officially opened the proceedings. This seminar, chaired by Judge McGuinness, reflected on the current experiences of children in the Irish courts. The inaugural Catherine McGuinness Fellow, Catríona

Beatrice (left) at the International Coalition for Children with Incarcerated Parents Conference in Rotorua, New Zealand, with Dr Aisling Parkes (right) and Dr Fiona Donson.

Doherty BL, presented a paper on victims’ legislation on a panel with Prof. Ursula Kilkelly of University College Cork and Carol Coulter of the Child Care

Detention rules

Law Reporting Project. I was delighted to be formally introduced as the new

As my final piece of work for the Alliance, I worked on a submission to the

Fellow by Tom Costello, Chair of the Alliance.

Council of Europe, which is seeking to codify a detailed set of immigration

In January 2017, the Alliance was very supportive and encouraging when,

detention rules based on existing international and regional human rights

through my work as a member of the legal panel in the International Protection

standards. This will inform the preparation of a draft legal instrument on the

Office (IPO), I was deployed to the island of Chios, Greece, to work in a refugee

conditions of administrative detention of migrants. I concentrated on the areas

camp with the European Asylum Support Office.

of access to legal advice and representation, and information on rights and obligations.

Report Card

Throughout my year with the Alliance, I had the opportunity to meet many

A mammoth task that the Alliance undertakes each year is its ‘Report Card’, a

motivating, dedicated and pivotal women and men who work extremely hard

look at how the Government is progressing on children’s rights. This year marks

to improve the lives of children in Ireland. Not only did I have the chance to

the ninth year of the Report Card series and it was launched in February. Each

work closely with Tanya Ward, Chief Executive, and the Alliance team, I met

year, commitments in the Programme for Government relevant to children’s

the Tánaiste, the Minister for Children and Youth Affairs and Judge

rights are examined by the Alliance and are graded by an independent panel,

McGuinness on several occasions. I managed to juggle the Fellowship with my

based upon the Government’s fulfilment of each commitment. The assessment

criminal practice in the children’s court, my civil and criminal practice generally,

panel was chaired by Judge McGuinness and included solicitors Catherine

and my work with the International Protection Office (IPO), all with the

Ghent, Gareth Noble and Michael Farrell. I worked on the chapters ‘Rights in

support of the Alliance. I also gained skills and training in policy analysis,

the Family Environment and Alternative Care’ and ‘Equality’, which

governance and strategic planning. My time with the Alliance gave me an

encompassed child protection, guardians ad litem and rights of minorities. My

insight into the input and influence a national non-government organisation

involvement in the Report Card 2017 process allowed me to gain a valuable

can have on achieving important law reform and social change.

insight into the level of research and work that goes into such a project.

Finally, I would like to acknowledge the support of The Bar of Ireland, whose

During the year, the Alliance has been working with the Irish Penal Reform

endorsement is key to the success of the Fellowship programme. The support

Trust (IPRT) on a project led by Drs Fiona Donson and Aisling Parkes of UCC,

of the Family Lawyers Association of Ireland is also greatly valued.

which aims to develop an advocacy and research strategy on the rights of children affected by parental imprisonment.2 This project is funded by the Irish

References

Research Council and was launched in September 2017. In March, I got the

1.

Parkes to deliver a paper on the rights of children of incarcerated parents at a

S.I. No. 112/2017 Criminal Law (Sexual Offences) Act 2017 (Commencement) Order 2017.

incredible opportunity to travel to New Zealand along with Drs Donson and 2.

This is to build on the IPRT’s 2012 Report ‘Picking up the Pieces: The

conference hosted by the International Coalition for the Children of

Rights and Needs of Children and Families Affected by Imprisonment’,

Incarcerated Parents.

which identified the need for research in the area.

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A benchmark for bullying claims The Supreme Court decision in Ruffley sets a benchmark for workplace bullying claims.1 stage part 4 warning, which would stay on her file for six months. In January, Ms Ruffley was summonsed to another meeting with Ms Dempsey and the Chairman of the board, Mr Lynch, and was given a final stage part 4 warning, which was to stay on her record for 18 months. Ms Ruffley attended a further meeting with Ms Dempsey a few days later at which O’Neill J. found she was “belittled, humiliated and reduced to tears”. Ms Ruffley appealed the final warning through her trade

Marguerite Bolger SC

union and sought to rely on a questionnaire she had given to her fellow SNAs inquiring if they had ever locked the sensory room door or if they had been asked by the principal to lock the sensory room door. Four of them answered yes to the

Introduction 2

The recent Supreme Court decision in the case of Ruffley has examined the concept

first question and no to the second. In June, the board considered the appeal and

of bullying in the workplace in the context of an unfair disciplinary procedure. In his

endorsed the original warning. In correspondence with Ms Ruffley’s solicitors, the

judgment, O’Donnell J. described it as a novel case, which “will set a benchmark for

board acknowledged that other members of staff had locked the door of the sensory

all bullying claims”, involving treatment which he viewed as being at the margins of

room but stated that this was not school policy. There was another incident some

workplace bullying. While the plaintiff was ultimately unsuccessful in her substantive

months later on September 27, 2010, when Ms Ruffley was reprimanded by Ms

claim, a careful consideration of the judgments, particularly that of O’Donnell J.,

Dempsey for being late. This was described by O’Neill J. as the last straw. Ms Ruffley

shows that the Supreme Court has validated and endorsed the cause of action of

was certified as unfit for work. Ms Ruffley was awarded substantial damages by the

workplace bullying in Irish law, particularly in listing a number of examples of the

High Court. The decision was overturned in the Court of Appeal, and while the

type of conduct that may ground successful claims in the future.

Supreme Court upheld the decision,3 the Court declined to make any order in relation

Background

of Ms Ruffley’s High Court costs.4

to the payment out of ¤100,000 to Ms Ruffley and directed the school to pay half The facts of the case were relatively simple, but have given rise to complex legal analyses within the difficult area of interpersonal relationships. Ms Ruffley was (and

The Court of Appeal: a “largely fact driven analysis”5

still is) a special needs assistant in a school for children with physical and intellectual

The Court of Appeal decided by majority of 2:1 that Ms Ruffley had not established

disabilities. On September 14, 2009, Ms Ruffley was caring for a child when he fell

evidence of actionable bullying as she had not satisfied the Court that her treatment

asleep in the sensory room of the school while she had the door locked, which was

came within the definition of workplace bullying. The President emphasised the

common practice for her and her colleagues. Both the class teacher and the principal

bona fide nature of the Chairman’s concerns about locking the sensory room door.

confirmed that Ms Ruffley was to allow the pupil to continue sleeping. Neither

He found that the disciplinary process, while it may have arisen from a

discussed with Ms Ruffley at that time the locking of the door. The next day, the

misunderstanding, was honestly pursued in the interests of the children and that

principal informed Ms Ruffley of her concern regarding the locking of the door and

there was nothing in the process constituting a sustained campaign maliciously

that she was treating the incident as a disciplinary matter. Ms Ruffley was put under

pursued in order to intimidate or humiliate or denigrate the plaintiff. Irvine J. focused

a review process for three months in relation to the child. Four weeks into that

more on the concept of dignity in the definition of workplace bullying. She accepted

review, Ms Ruffley, in a meeting with another teacher, sought to correct a form she

that a right to dignity at work entitled a person to be treated with fairness but found

had filled out about the child’s progress, but the teacher refused to allow this and

that the evidence did not amount to bullying within the definition. Finlay Geoghegan

recorded it as “miscommunication”. The principal accused Ms Ruffley of falsification

M. delivered a powerful dissenting judgment. Like Irvine J., she emphasised the

and at that stage decided to bring the entire matter to the board. The Chairman of

concept of dignity, which she found included: “a right to be treated with respect,

the board was very concerned about locking the sensory room door. The board

fairly and not less favourably than other colleagues in a similar position”.

considered the entire matter in Ms Ruffley’s absence and she was never afforded an opportunity to make representations to them. The principal recommended a

The questions formulated by the Supreme Court

verbal or written warning. Some members of the board wanted Ms Ruffley to be

Ms Ruffley was granted leave to appeal to the Supreme Court on two questions:

dismissed. The board’s reaction was described by O’Neill J. in the High Court

1. Whether an unfairly carried out disciplinary process resulting in psychiatric injury is,

judgment as “downright intemperate”, which he found suggested as a matter of

in itself, capable of being actionable in damages on the basis that it amounts to

probability that the account given by the principal to the board of the history of

workplace bullying without evidence of malicious intent on the part of the employer.

the matter “was almost certainly untrue, highly biased, coloured and grossly and

2. Whether behaviour not witnessed by other persons in the workplace is capable

unfairly damnified the plaintiff”. O’Neill J. said that he did not think the members of the board would have reached conclusions so adverse to the plaintiff “unless

129

of undermining the dignity of an employee. Although both questions were answered in favour of the appellant, the decision of

grossly misled as to the true circumstances prevailing”. In December, a month after

the Court of Appeal was upheld. The Supreme Court went beyond the narrow focus

the board’s meeting, Ms Dempsey informed Ms Ruffley that she was to get a final

of the two questions and attempted to address some of the broader issues thrown

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up by the law on workplace bullying. While the more inclusive consideration of the

This dicta was quoted with approval by Charleton J. in Ruffley. O’Donnell J., in

issues by the Supreme Court is welcome, it was regrettable that the Court’s

considering the definition, cautioned against viewing its components as “separate

consideration of this important issue was artificially constrained by the two specific

and self-standing issues” and pointed out that: “it is a single definition and a single

questions. O’Donnell J. accepted that this meant:

test: was the defendant guilty of repeated inappropriate behaviour against the

“that the Court did not perhaps have the range of materials and depth of

to dignity at work?” He emphasised the “distinctive” language of the definition,

submissions as might have been provided if the broader issue had been addressed

each point of which was “at a markedly elevated point on the register”.

plaintiff which could reasonably be regarded as undermining the individual’s right

from the outset, and so my conclusions as to the law must be subject to some

He concluded that:

qualification and the possibility of refinement in future cases”.

“What must be repeated is inappropriate behaviour undermining the personal dignity

In answering the first question in the negative, both O’Donnell J. and Charleton J.

that the behaviour is repeated for the purposes of a definition. What must be

of the individual… It is when a pattern of behaviour emerges that it can be said conceptualised workplace bullying as a breach of the duty of care owed by an

repeated is the behaviour which is inappropriate and which undermines personal

employer to its employees. Therefore, proof of intent (malicious or otherwise) is not

dignity. It is not enough that what is alleged to constitute unfair procedures is

required to establish liability for workplace bullying, even though evidence of such

comprised of a number of different steps unless each of those steps can be said in

an intention would undoubtedly strengthen the claim. The second question arose

themselves to be inappropriate and undermine human dignity”.

from findings made in the majority judgments of the Court of Appeal that certain events did not require the consideration of the Court as they took place in Ms

Inappropriate behaviour

Ruffley’s absence or without her knowledge. This question was dealt with firmly by

In focusing on the concept of “inappropriate behaviour”, O’Donnell J. emphasised

O’Donnell J., who found that behaviour conducted in private can ground a claim

the need to assess “the question of propriety and human relations, rather than

for bullying, even though “any element of humiliation in public will certainly

legality”. In applying that to Ms Ruffley’s treatment, he agreed that she was

strengthen a claim”.

humiliated by Ms Dempsey and reduced to tears at the meeting of January 27,

The definition of workplace bullying

sanction on her in a manner that was unfair, flawed and liable to be quashed as

Workplace bullying has long been defined as the following:

invalid and unlawful could not be said “without more, to be inappropriate in the

“Repeated inappropriate behaviour, direct or indirect, whether verbal, physical or

sense in which that word is used in the definition”.

2010. By contrast, he found that the board’s decision to impose a disciplinary

otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded

Dignity

as undermining the individual’s right to dignity at work”.

There was an interesting discussion around the concept of dignity, which O’Donnell

This definition was accepted by the Supreme Court in Quigley v Complex Tooling

J. described as “perhaps the most important aspect of the definition” and “a central

and Moulding Limited,6 where Fennelly J. identified treatment that satisfied the

feature of the test”. He said the requirement of conduct undermining dignity at work:

definition: “[E]xcessive and selective supervision and scrutiny… unfair criticism, inconsistency, lack of response to complaint and insidious silence”.

“is a separate distinct and important component of the definition of bullying which

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identifies the interests sought to be protected by the law, and just as importantly

“Correction and instruction are necessary in the functioning of any workplace and

limits the claims which may be made to those which can be described as outrageous,

those are required to avoid accidents and to ensure that productive work is engaged

unacceptable, and exceeding all bounds tolerated by decent society”.

in. It may be necessary to point to faults. It may be necessary to bring home a point

While denial of fair procedures is never a trivial matter, he did not consider that it

kindness to attempt to instil a work ethic or to save a job or a career by an early

by requesting engagement in an unusual task or longer or unsocial hours. It is a could be said to be undermining of human dignity, particularly when it is the same

intervention. Bullying is not about being tough on employees. Appropriate

breach of procedures which is also contended to be inappropriate.

interventions may not be pleasant and must simply be taken in the right spirit. Sometimes a disciplinary intervention may be necessary”.

What will satisfy the definition? O’Donnell J. described bullying as involving “a question as to how something was

However, the converse of that analysis of an acceptable disciplinary procedure must

done rather than what was done”. He stressed that the difficulties with Ms Ruffley’s

be that where such intervention is not necessary and/or not appropriate, it could

treatment were with what was done (being the procedures adopted or the lack of

come within the definition of workplace bullying and ground a claim for damages.

them) rather than the manner in which it was done (personal remarks or offensive

O’Donnell J. did seem to countenance the possibility of a person being targeted or

behaviour). In analysing how and when the manner of an employee’s treatment

singled out for disciplinary sanction as potentially constituting actionable bullying:

might constitute a breach of their employer’s duties, O’Donnell J. gave a number of examples of workplace bullying such as ridicule, personal antagonism, exclusion

“[I]n many cases in which it can be said a person has been ‘targeted’ or ‘singled

from a group, shouting in public, the making of disparaging remarks in public or

out’ for disciplinary sanction and which constitutes part of a finding of bullying, the

private about work, appearance, gender or sexuality, status or racial origin,

fact of a general practice will have been known to the superior prior to the initiation

intimidation, the circulation of damaging gossip or the use of aggressive and

of any disciplinary process, and in such circumstances may give rise to the inference

obscene language, or repeated requests to do tasks which were either menial or

that the disciplinary proceedings are not being pursued bona fide because of a

impossible to perform in the time required. Later in his judgment he gave what he

concern about the practice or behaviour, but rather as a form of punishing and

called “familiar examples of bullying”, such as:

perhaps humiliating the individual concerned”.

“purposely undermining an individual, targeting them for special negative treatment,

So the misuse of a disciplinary procedure as a way of getting at the individual when

the manipulation of their reputation, social exclusion or isolation, intimidation,

the reason for invoking the procedure is not a bona fide one, and workplace bullying

aggressive or obscene behaviour, jokes which are obviously offensive to one person,

prior to the initiation of a disciplinary process, could give rise to an inference that

intrusion by pestering, spying and stalking – these examples all share the feature

the process itself was not instigated in good faith. The application of the test is

that they are unacceptable at the level of human interaction. That in turn is

objective rather than subjective, a point heavily emphasised by the Court of Appeal

consistent with the concept of human dignity being protected”.

and by the Supreme Court throughout the case, including in determining the question for appeal.7 A disciplinary process does not enjoy a blanket immunity from

This may be the most important aspect of the entire decision for the development

the application of the test for workplace bullying, a point Irvine J. had noted in her

of the jurisprudence on bullying claims. The examples set out what may satisfy the

judgment in the Court of Appeal:

definition of workplace bullying (unlike the application of the flawed disciplinary procedure applied to Ms Ruffley). In any future case where a plaintiff can establish evidence of such conduct, then they may well be able to establish liability for any recognisable psychiatric injury they sustain as a direct consequence.

“Behaviour that can objectively be viewed as bullying enjoys no safe haven merely by reason of the fact that it may have taken place in the context of a disciplinary process”.

Conclusions When a disciplinary procedure could involve actionable bullying

Once again, as they did in Quigley, the Supreme Court has endorsed the cause of

Both judgments of the Supreme Court found that Ms Ruffley’s treatment within a

action of workplace bullying. While it is now difficult (although not impossible) to

flawed disciplinary procedure did not satisfy the definition of workplace bullying.

mount a claim of bullying based on the application of a disciplinary procedure, the

Charleton J. gave a strong endorsement of the right of an employer to invoke a

Court has confirmed the behaviours that will satisfy the definition and thereby

disciplinary procedure and endorsed what might be viewed as the default position

establish a breach of the duty owed by an employer to their employees. Bullying

in which a disciplinary procedure will not satisfy the objective definition of workplace

and harassment claims are, post Ruffley, as difficult as they ever were, but they are

bullying:

far from unstateable!

References 1. This is an edited version of a paper presented to the Employment Bar Association on July 19, 2017. I am grateful to Cathal O’Currain BL for his helpful comments on an earlier draft of my paper.

131

4. Ex tempore decision of July 17, 2017. 5. Connaughton M. 'Bullying at work; when is the employer liable?’, Employment Bar Association of Ireland Conference, October 2016.

2. Ruffley v The Board of Management of Saint Anne’s School [2017] IESC 33.

6. [2009] 1 IR 349.

3. [2017] IEHC 33. Judgments of May 26, 2017.

7. [2016]I.E.S.C.DET. 52.

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The hidden persuaders and the inner nature of the tort action Hidden forces are at play in the presentation of information regarding awards of damages in personal injury cases.

dismissed. The courts now, of course, have power not alone to dismiss the entirety of a fraudulent claim but also to dismiss claims that include an inflated or exaggerated basis. Plaintiffs are obliged to verify their claim by affidavit, and are routinely subjected to line-by-line cross-examination as to the contents of their pleadings with a view to exposing any inconsistencies or exaggerations. If exaggeration is found, then the penalties are severe. Defendants are also obliged to verify their claims. The court should, if requested, insist that the person swearing the defendant’s affidavit is, like the plaintiff, someone who can be brought to account in the event of

Mr Justice Kevin Cross Dmitriy Gelfand

inaccuracies. If an exaggerating plaintiff should be penalised, then the same fate should also await a defendant who is careless in relation to the oath. Of course, no person who wanted to mount a fraudulent claim is going to be put

2017 marks the 50th anniversary of the publication in The Irish Jurist of the 'Inner

off by billboard ads showing persons in a neck collar with a Pinocchio nose. Such

Nature of the Tort Action' by J.M. Kelly (The Irish Jurist 1967, Vol. II, p. 279). Prof.

advertisements only have the effect of dissuading the timid genuine plaintiff from

Kelly argued, perhaps whimsically, that the traditional theory for the awarding of

asserting their rights by the general smearing of injured parties and their cases

damages in a tort action for non-pecuniary loss (endeavouring to put the plaintiff

with the catch-all label of 'compensation culture'. Unfortunately, such

in the same position “so far as money can do so” as if the wrong had not been

advertisements, and the consistent campaign by the hidden persuaders has, it

committed) was false, and rather, the inner nature of the tort action was to provide

seems, subconsciously influenced the judges.

“satisfaction” as in a duel, so that the damages ought to reflect not what sum should compensate a plaintiff for his loss, but “what sum will satisfy my present

Damages

feelings about my loss? How much would I take (not as an exchange for my pain

In relation to the quantum of damages, the position is that in recent years general

or lost health, but) to let the defendant go”. The plaintiff, if Prof. Kelly was correct,

damages have reduced rather than increased in actual terms, and when inflation

is to be regarded therefore as a duellist or a gladiator, and the damages are the duellist’s satisfaction. 2017 also marks the 70th anniversary of the publication of The Hidden Persuaders by Vance Packard, which highlighted how large corporations manipulated consumers using advertising, frequently hidden advertising, techniques. In relation to personal injury actions, the public has to suffer articles and programmes, usually inspired by the insurance industry, one of the gladiators in the arena, which advise that the reason for significant hikes in motor, public liability and employer’s liability insurance premiums is because of the ‘compensation culture’ and allegedly recently inflated awards of damages. The purpose of this article is to demonstrate that these allegations, often by hidden persuaders, are not just an inaccurate suggestion as to why insurance premiums have risen, but also represent a sustained attempt to influence the level of damages. The evidence suggests that these hidden persuaders have had their desired effect. The gladiator has been 'netted' by the ringmaster.

Fraudulent claims In conjunction with articles and programmes attacking the level of damages, the insurance industry has also funded advertisements attacking fraudulent claims. There is no doubt that a fraudulent claim should be harshly treated and

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is taken into account, damages for personal injury have, during the course of my

and small injuries require small damages. However, a judge is not engaged in any

practice as a barrister since the mid 1970s, dramatically decreased.

Benthamite exercise of measuring comparators in any pseudoscientific manner.

In 1967, Prof. Kelly remarked that as a matter of practice, an Irish judge or jury

The judge’s first obligation is to assess the sum that would put the plaintiff in the

would award something in the order of £500 for a fractured thigh necessitating

position that he or she would have been in had the injury not occurred. That is

some weeks convalescence but not involving any residual disablement, and asked

the legal principle and it is the judge’s first obligation. If comparisons were to come

the question why approximately £500 was regarded as an apposite award for the

before that legal principle, then you would have an inevitable downward drag

broken thigh: “why not £50? or £50,000?”. The classic formulation of the purpose

upon awards in that comparisons always look back to the past. The award must

of damages for non-pecuniary loss such as personal injury is to put the injured

be good in principle before any comparisons are made.

party in the same position as he or she would have been had the tort not occurred.

The assessment of the amount of damages involves the judge’s subjective view

As Prof. Kelly rightly said, not one person in one hundred would submit to having

of what is reasonable. In other words, since the abolition of juries in 1988, a judge

his or her thigh cracked in exchange for an immediate cheque for £500 or even

has to transform himself or herself into that which he or she is not (i.e., a

£550. Of course, £550 was £50 more than a strict interpretation of legal theories,

'reasonable man') and decide upon a figure to compensate the injured party. When

suggesting that persons would be queuing up to have their thigh fracture. Be that

juries assessed damages, there was, at least, an approximation available to the

as it may, the awarding of damages is not and never has been a legal exercise in

legal system of the reasonable man in that 12 reasonable persons assessed what

the true sense. It must, of course, be done legally in that the award must be fair

they believed to be fair. That safeguard has been removed and the law requires

to both parties and neither motivated by sympathy towards the plaintiff’s injuries

judges to do the job.

nor by concern for the effect an award might have upon the defendant. The assessment of damages is an exercise in common sense. A judge is also now

The fallacy of rising damages

obliged to have regard to the Personal Injuries Assessment Board (PIAB) Book of

Recent statements from the insurance industry suggested that in the last few

Quantum, and to take some account of comparisons with other cases. Naturally,

years, the “average” High Court award has increased. That observation was

serious injuries require serious damages, moderate injuries moderate damages,

repeated in the media without any scrutiny or comment. It is not clear how the

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insurance industry would have been aware of the “average” High Court awards or

None of those figures represented an award at this time for what might be

settlements, since the vast majority of cases are settled and the amount of the

described as a catastrophic or really significant injury. In 1984, the Supreme Court

award is not disclosed. The Courts Service has no record of the awards. The

in Sinnott v Quinnsworth fixed what is called a “cap” on general damages in certain

insurance companies do not, we are told, share data between themselves.

catastrophic cases (in which all the needs of a plaintiff for loss of earnings, future

In any event, accepting, for the purposes of argument, that the “average” award

care, and the costs of aids and appliances had been catered for in the special

in the High Court has increased in the last number of years, that of itself tells you

damages) at the then rate of £150,000. In Sinnott v Quinnsworth, the jury had

absolutely nothing.

awarded a sum of £800,000 for general damages but the Supreme Court

First of all, the jurisdiction of the Circuit Court in personal injury actions has

differentiated a catastrophically injured party, all of whose needs were catered for

increased to ¤60,000 and, accordingly, the large bulk of cases under ¤60,000 since

by extensive special damages, from other plaintiffs who would have more freedom

February 3, 2014 or so has been removed from the High Court jurisdiction and

to spend their general damages.

the “average” will, therefore of necessity, have risen.

In 2009, in Yun v MIBI and Tao [2009] IEHC 318, Quirke J. considered all the

Secondly, the large catastrophic birth injury cases reported in the newspapers,

authorities and fixed the “cap” at ¤500,000, which he then reduced to ¤450,000

which do involve very significant awards to compensate persons injured at birth

due to the economic collapse the country was experiencing at the time. Thankfully,

or the like, have indeed increased in the last few years due to the high cost of

that economic collapse is now a thing of the past.

care, etc., for these catastrophically injured persons and due to the need (as

It is not suggested that the level of damages should be pegged to the cost of

stipulated by the Court of Appeal in the Gill Russell case) to increase actuarial

house inflation, but an award of ¤450,000 today would equate to £100,0001 in

figures into the future. It is not damages for pain and suffering that are to

1980. In 1980, £100,000 was being awarded for general damages in serious, but

compensate the plaintiff for the injury, but rather the special damages, which are

by no means catastrophic, cases.

the costs and expenses actually incurred, or that will be incurred, that have resulted

£10,000 in 1980 is equivalent to ¤45,690 in 2016. The level of general damages

in significant increases in awards for catastrophic injury. Also, these cases are, of

has fallen fairly constantly over the years of this century. An injury that would

course, funded not by the insurance industry but by the State Claims Agency and

have resulted in an award of £10,000 in 1980 would be unlikely to achieve

can have no effect on the cost of insurance.

anything near ¤45,690 today. It is, however, the plaintiffs with serious and

Thirdly, in all cases, not just catastrophic injuries, what has increased is not general

significant injuries, rather than those with minor injuries, whose damages have

damages for pain and suffering but the special damages, the out-of-pocket

been the most dramatically reduced.

expenses, the cost of repair of a motor vehicle, the loss of earnings in the past

The last increase in general damages occurred when juries were abolished and the

and into the future, and in some cases the cost of care in the past and into the

assessment of general damages fell to judges after the Courts Act 1988. However,

future. All of these items of special damages have increased over the years in line

the increase of general damages did not last long, and by the conversion of the

with the cost of living. Indeed, medical expenses and damages have sometimes

punt to the euro in 1999, a case that had been worth £30,000 would typically

increased greatly in excess of the rate of inflation. These increases in special

have resulted in an award of ¤30,000. Accordingly, far from increasing, the level

damages, of course, mean that a headline figure is published in a newspaper or in

of damages has decreased in absolute terms and has, a fortiori, decreased taking

the media saying “¤X for supermarket fall”, etc., whereas a significant portion of

into account inflation.

the “X” will relate to these special damages, which are not compensation to the

I do not accept that when judges have been effectively reducing the level of

plaintiff for the injuries sustained but payment for actual costs incurred and

general damages, they have been acting in response to a change of habits or

financial loss. Members of the public are rarely informed what percentage of “X”

perspective of the so-called 'reasonable man'. Judges should be very wary of

relates to general damages. As judges used to advise juries, when all the special

mistaking the views of the reasonable man for those articulated in the pavilion

damages have been totalled up amounting even to a very substantial figure, no

bar of the local golf club. The only way to establish the views of the reasonable

compensation had by that stage been provided to the plaintiff for the fact of the

man would be to reintroduce juries, and that is highly unlikely. I would suggest

injury. Possibly judges might remind themselves of that legal principle when they

that in their attitude to the awarding of damages, the courts have been reacting

are assessing damages.

not to the unbiased view of the reasonable man, but rather have been doing the

The price of a house

arena.

work of the hidden persuaders, acting on behalf of one of the gladiators in the When I commenced practice as a barrister in the second half of the 1970s, the

135

upper jurisdiction of the Circuit Court was £2,000 and a fairly moderate High Court

Fair and reasonable

award from a jury of £10,000 general damages would purchase you a fine house

As previously stated, the award for general damages is one that the judge considers

in Cork, where I practised at the time. At the same time, a good award of £20,000

to be fair and reasonable. Whether he or she does so, as the law requires, so as to

would purchase you, at least, two fine houses, one of which you could live in and

put the plaintiff (insofar as money can do so) in the same position as he or she

one to rent, and in effect to provide for your needs for the rest of your life. If you

would have been had the injury not occurred, or as Prof. Kelly suggested, produces

obtained an award of say £50,000 in general damages, you would have been in a

a figure to give “satisfaction” for the wrong done to the injured party, does not

position to purchase a licensed premises. A plaintiff would require to be either

need to concern us. The judge assesses damages for the injuries that he or she

catastrophically or very significantly injured today in order to purchase a single

believes to have occurred in the accident. The judge does so based upon the

house.

evidence.

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It is sometimes suggested that there is or ought to be a difference between those

has declined over recent years. The first reason for that is the introduction of

injuries that can be seen on an x-ray and those which cannot. That is a false

the PIAB in 2004. The PIAB has had a greater effect in reducing the number of

distinction. Compensation for 'whiplash' or soft tissue injuries to the neck or

personal injury cases in the Circuit Court than in the High Court for the good

back is, in principle, no different from compensation for a broken leg, or indeed

reason that it is significantly more difficult for the PIAB to decide whether an

for a psychiatric injury. In each case, what is to be compensated is the trauma to

injury, at the time of its assessment, will result in one year or ten years' loss of

the individual.

earnings, etc. But while the number of personal injury cases commenced in the

If a plaintiff is exaggerating or manufacturing a soft tissue or psychiatric injury,

High Court in 2004, immediately prior to the introduction of the PIAB, increased

or indeed the consequences of any fracture, the defendant's medical team can

to 15,393, the average for the years 2000 up to 2003 was 11,117 cases. The

and frequently does suggest that fact. Doctors can and do test plaintiffs for

latest year for which figures are available, 2016, indicated that 8,510 personal

inconsistencies and assess whether a plaintiff is genuine or not by how they

injury cases were commenced in the High Court.2 A spokesperson on behalf of the PIAB has already answered conclusively claims

respond to various tests and examinations. In addition, plaintiffs are frequently put under observation by private investigators, who spend long hours watching

from the insurance industry to the effect that High Court awards are responsible

to see whether there are any inconsistencies. It would be a very unusual person

for hikes in insurance premiums by furnishing their statistics as to the number

who would be prepared to go through the inconvenience of having to wait for

of awards that they make and the significantly high number of claims that are

four or five years before their case is heard, encased all the while in a cervical

disposed of by the PIAB.

collar or utilising crutches without any medical need on all occasions. That would

It is my contention that it is not alone the existence of the PIAB that has reduced

require a fairly sustained level of acting ability.

the number of High Court cases. Also, the number of accidents has decreased

In any event, it is incumbent upon a trial judge to assess the witnesses and the

in recent years.

evidence and to test it. This is what judges do. In this regard, there is absolutely no difference between the testing of the evidence of someone claiming a soft

Road facts

tissue injury to his neck or back, and someone claiming that they are depressed

In the case of road traffic accidents, the number of accidents resulting in injury

or have suffered post-traumatic stress disorder. It is just as possible to deliberately

or death as a percentage of road users, and therefore insurance premium payers,

exaggerate the consequences and alleged long-term effects of a fractured leg,

has decreased dramatically. The Road Safety Authority has made available

as it is the effects of a soft tissue injury to the neck. To attempt to limit

statistics in relation to fatal, serious and minor injury collisions. The statistics

compensation only to those whose injuries can be ascertained on an x-ray and

relate to the number of collisions causing fatalities or injuries rather than the

to differentiate between those persons and other persons genuinely injured

number of fatalities or injuries themselves. Accordingly, more than one injury or

whose injuries are not amenable to x-rays is not alone unfair but constitutionally

death may result from the same accident, but by utilising the same statistics for

doubtful.

each year, comparisons can be made.

To suggest that awards in this jurisdiction should be reduced to equate to awards

In the years between 1968 and 1983, there was an average of 518 fatal collisions.

in some European countries with entirely different legal systems is as irrational

In the years between 1984 and 2014, the average was 339. In the years between

as it would be to suggest that the awards in Ireland should be increased to the

2000 and 2014, the average was 269, whereas between 2010 and 2014, the

levels of, say, the United States of America.

average was 173.3 The figures in relation to all injury collisions are not as dramatic. In the years

Nothing but the truth

between 1968 and 1983, the average for all injury collisions involving serious or

Plaintiffs do sometimes lie in order to obtain what is not rightfully theirs. Let us

minor injury was 5,354. Taking the years 1984 to 2014, the average yearly figure

whisper it lest we offend: defendants sometimes lie too. A defendant who avers

was 6,099. Taking the years between 2000 and 2014, the average was 5,853,

to a defence that states that there was not any negligence, or that the plaintiff

and between 2010 and 2014, the average number of cases per annum involving

was guilty of contributory negligence, when their professional reports indicate

injury was 5,306. From the above, it can be concluded that whereas the number

to the contrary, is no different from an exaggerating plaintiff. The lies of a plaintiff

of collisions involving fatalities has steadily fallen, the number of collisions

are generally the lies of an individual. The lies of a defendant are generally

involving injury increased to a peak in the 1990s and has been reducing since

corporate. We do not see any billboards showing defendants with Pinocchio

that date.

noses and Scrooge hats.

The total number of collisions involving fatalities or injuries is, of course, not the

In relation to the costs of litigation, a change in taxation rules in recent years

only relevant statistic when analysing road traffic premiums. To get the full

has resulted in a considerable reduction in professional fees to barristers and

picture, one has to remember the statistics in relation to the number of

solicitors. The costs of litigation have therefore fallen, not risen. Accordingly,

mechanically propelled vehicles over the years. In 1985, there were 709,546

both general damages and professional costs have declined rather than

private cars and a total of 914,758 mechanically propelled vehicles. The number

increased.

of mechanically propelled vehicles on the road, as well as the number of private

Impact of the PIAB

vehicles was 1,985,130 and the total number of mechanically propelled vehicles

When examining the alleged effect of court awards on insurance premiums, the

was 2,570,294.4 In other words, allowing for the fact that there will always be a

next point to be made is that the number of cases commenced in the High Court

certain quota of uninsured drivers, the number of vehicles whose owners would

cars, has increased significantly over the years. In 2015, the number of private

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LAW IN PRACTICE

have been paying policies of insurance into the insurance companies has

However, the hidden persuaders have been very effective. There have even been

increased from somewhat over 900,000 in 1985 to over 2.5 million in 2015. In

judicial comments, without any evidential basis, suggesting that “one man’s

1985, there were 377 fatal collisions and 5,141 collisions involving injury, a total

award is another man’s premium increase”. That sort of thinking is entirely

of 5,518. In 2014, the last year for which I have full statistics, there were 179

unsupported by any evidence and indeed is counter to the evidence available.

collisions involving a fatality and 5,623 collisions involving injury, i.e., a total of

The hidden persuader does not require evidence to succeed; he hopes that the

5,802. The number of collisions involving fatalities or injury in 1985 was nearly

evidence that exists will never be tested, and merely requires the appearance of

three times higher as a percentage of all mechanically propelled vehicles than

sounding reasonable. The hidden persuader is confident that whatever he says

the number of similar collisions compared to the number of all mechanically

will be faithfully taken down and publicised without thought by certain sections

propelled vehicles in the year 2014.

of the media.

It follows from the above that not alone is the PIAB taking a significant number

Shortly before his retirement in 1994, the then Chief Justice, Tom Finlay,

of cases out of the jurisdiction of the courts, but that the insurance companies

addressed the practitioners of the Munster Circuit in Cork. His theme was how

have the benefits of a far greater proportion of their customers' premiums, who

difficult it was to be a plaintiff in a personal injury action. This difficulty, he

have no accidents at all.

argued, was little understood in either the general public or the legal

A similar position arises in the case of industrial accidents. Since the introduction

establishment. Since he gave his talk, the difficulties facing a plaintiff have

of the Safety in Industry Act in the 1980s, it is clear to the most casual observer

multiplied. The statute of limitations for personal injuries has reduced from three

that at present, factories and building sites are far more safety conscious than

years to two years.

used to be the case. Partly due to statutory requirements and also partly due to

The introduction of the PIAB in 2003 (which of itself cannot be regarded as an

a wish to avoid accidents and litigation, employers have, since the Safety in

attack on the plaintiff) does create potential minefields as to which actions must

Industry Acts, been steadily increasing the safety of their premises.

be notified to the PIAB and when, and in what circumstances, the statute of

Whereas the number of persons in work has increased and decreased with the

limitations will be a factor. These minefields require a plaintiff to be professionally

fluctuation of the economy, if you take the period 2003 to 2015, which is before,

advised and, therefore, litigation oriented much earlier than hitherto. Previous

during and after the recession, the figures supplied by the Health and Safety

simplicity has been replaced by complexity. Furthermore, the obligations of

Authority are that the rate of fatal accidents per 100,000 workers in 2003 was

deponents of affidavits of verification created by the Civil Liability and Courts

3.27 and in 2015 was 2.53. Similarly, the figures for non-fatal accidents, causing

Act 2004, which have been discussed above, impact disproportionately upon

four or more days' absence from work, was 1,200 per 100,000 workers in 2003

plaintiffs, as do the obligations of disclosure of documents and reports, and the

and 900 per 100,000 workers in 2015.5

obligations to furnish the other side with what figure the plaintiff would take by

To summarise, the number of accidents that result in High Court claims has been

way of settlement. In addition, as also referred to above, the practical deterrents

reduced, the number of accidents as a percentage of the insured has dramatically

against an exaggerating plaintiff are far more severe than any corresponding

decreased and the cost of litigation on a case-by-case basis has also reduced.

deterrents against the defence.

The damages for personal injury have not alone failed to keep pace with inflation

All of these factors have combined to make what Chief Justice Finlay thought

but, in more recent times, have been lowered in actual terms. The inescapable

to be a very difficult position into something that is far worse. In addition to

conclusion from all of the above is that to blame the increase of premiums on

these difficulties, a plaintiff will be advised by his solicitor and counsel that

the level of general damages in the courts is entirely untrue.

should he succeed the damages he will recover for his pain and suffering have, in practice, been reduced.

Judging

Prof. Kelly’s duellist or gladiator sought satisfaction. The gladiator lies on the

To further suggest, as has been done, that the reason for the alleged increase in

floor of the arena. He looks up to the judge for a decision. He believes that the

general damages, which, of course, has not occurred, is that in recent years

judge will act in accordance with the law and custom. The emperor looks down

judges with many years of experience in personal injuries have been replaced by

at the gladiator. He knows he must make a decision. He knows he must decide

new judges who are inexperienced and under-qualified is untrue, insulting and

in accordance with the law and custom. He knows he must decide without fear

defamatory.

or favour. He knows he must ignore the roar of the crowd. But is the emperor

Premiums have risen either due to mismanagement or lack of competition in the

aware of the provenance of the seemingly so sensible, so reasonable and so

insurance industry, or because insurance companies can no longer invest the

consistent voice of the hidden persuader from the shadows? The emperor’s

premiums of their customers in relatively high interest-bearing stocks.

thumb twitches towards a determination.

References 1. All figures for inflation supplied by the CSO. 2. Figures supplied by the Courts Service. 3. Figures obtained from the Road Safety Authority.

137

THE BAR REVIEW : Volume 22; Number 5 – November 2017

4. Figures in relation to number of vehicles on the road furnished by the Automobile Association. 5. Figures supplied by the Health and Safety Authority.

LAW IN PRACTICE

Implementing the Victims' Directive: a prosecutor’s perspective The Victims’ Directive has placed the victim in a central position within the Irish criminal justice system.

(i) Is there sufficient evidence to establish a prima facie case? And if so, (ii) Is a prosecution in the public interest?

The prima facie case or strength of the evidence Gareth Henry Head of Communications and Victims Liaison Unit, Office of the Director of Public Prosecutions

A prima facie case is defined in the Guidelines at paragraph 4.10, which states that there must be “... admissible, relevant, credible and reliable evidence which is sufficient to establish that a criminal offence known to the law has been committed by the suspect. The evidence must be such that a jury, properly

In order to get a perspective on the position of victims’ rights within the

instructed on the relevant law, could conclude beyond a reasonable doubt that

criminal justice process, from the point of view of the prosecutor, one must

the accused was guilty of the offence charged”.

first look at the manner in which decisions are made by the Office of the Director of Public Prosecutions (ODPP).

To prosecute or not to prosecute? The Guidelines set out a number of principles that help those deciding on

The Guidelines for Prosecutors

prosecutions to make those decisions. Primarily, these decisions are made by the

The decision to prosecute or not to prosecute is based on the ‘Guidelines

Directing Division in the ODPP.5 Once they have decided about the strength of

for Prosecutors’ (the Guidelines). The most recent edition of the Guidelines

the evidence, the Guidelines oblige the decision maker to go further.6 They must

is the fourth edition, published in October 2016 following a substantial

make an assessment of the likelihood that a conviction would be recorded.

revision and updating exercise in advance of the transposition of the EU Victims' Directive 29/2012 on November 15, 2015.1 Since that date the

The public interest7

DPP’s office has been complying with the terms of the Directive in its

As in other common law systems, a fundamental consideration when deciding

dealings with victims. This is set out in more detail in this article. The

whether to prosecute is whether to do so would be in the public interest. A

Guidelines recognise2 that the decision to prosecute, or its corollary, not to

prosecution should be initiated or continued, subject to the available evidence

prosecute, has far-reaching effects for victims, suspects, their families, and

disclosing a prima facie case, if it is in the public interest, and not otherwise. There

others in the community. The Guidelines govern the decisions made by the

are many factors which may have to be considered in deciding whether a

Director, her professional officers, and those delegated to make certain

prosecution is in the public interest. Often the public interest will be clear, but in

decisions on her behalf.3

some cases there will be public interest factors both for and against prosecution.

The test for prosecution

wrongdoer is convicted and punished. It follows from this that it will generally be

There is a clear public interest in ensuring that crime is prosecuted and that the Chapter 4 of the Guidelines is quite detailed, but boils down to two essential

in the public interest to prosecute a crime where there is sufficient evidence to

questions that make up the test4 as to whether or not to prosecute:

justify doing so, unless there is some countervailing public interest reason not

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LAW IN PRACTICELAW IN PRACTICE

to prosecute. In practice, the prosecutor approaches each case first by asking

of reasons for the decision concerned”,21 in order to allow them to decide

whether the evidence is sufficiently strong to justify prosecuting. If the answer

whether to seek a review of that decision. The question of what “…a brief

to that question is ‘no’, then a prosecution will not be pursued. If the answer is

summary” means is addressed in Article 11(3), which states that victims should

‘yes’, then before deciding to prosecute the prosecutor will ask whether the

“…receive sufficient information to decide whether to request a review of any

public interest favours a prosecution or if there is any public interest reason not

decision not to prosecute”.

to prosecute.

The question as to whether to prosecute or not is informed by the Guidelines. It is a legal assessment based upon the individual facts in each case, and the answer

Victims in the decision-making process – pre Directive

to the question is, by necessity, a legal one as well. The reasons that we provide

Until recent times, the victim in Irish law only had a role as a witness. The dynamic

are based upon our test for prosecution in the Guidelines, and so will relate to

of the criminal justice system has been based on prosecutor versus offender, as

either the sufficiency of the available evidence, or the public interest.

befits the common law, adversarial system we are all familiar with. Victims did

By far, the vast majority of decisions not to prosecute are based upon the

not have a formal status or role, although the Prosecution of Offences Act 1974,

insufficiency of evidence. This reflects the very high standard of proof required

as amended, permitted the victim or their family to communicate views on their

by our criminal courts. In practice, this means that the responses we give to

case to the DPP at various stages in the process. The changes brought about by

requests for reasons are graduated. For example, in relation to matters involving

the Directive put the victim in a much more central position and oblige the State

fatalities, we try to provide as much relevant information for the bereaved as we

agencies to re-orient their approach to inform, consult and accommodate not

can, subject to the applicable laws in relation to data protection,22 confidentiality,

just the needs, but also the views of victims.

and the guarantees in the Irish Constitution.

Victims' Directive8

Reviews

The purpose of the Directive is to set out minimum standards for victims

The right to review is carefully set out in Article 11(1).23 As noted in Article

throughout the EU. From the point of the view of the victim, many of the

11(2),24 across the EU, victims play very different roles within their respective

changes brought by the Directive build upon existing practices, for example, the

legal systems. This is a right exercised on request, and not an automatic right. It

expanded use of victim impact statements,9 the use of videolink,10 and the

is worth noting the terms of Recital 20,25 which provides a means by which a

11

provision of reasons for decisions made not to prosecute. The Directive was

member state can determine the role of the victim within the individual legal

drafted in the knowledge that a victim’s role in criminal proceedings varies

system. For example, in the Circuit or Central Criminal Court, when a nolle

between member states. In some member states, a victim will be party to criminal

prosequi has been entered, or in the District Court, if a prosecution is withdrawn,

proceedings and in others they will not.

which results in an order of dismiss, it may not be possible to offer a review of

The position in relation to the role of victims across the EU is therefore complex.

that decision without breaching our obligations to accused persons, given our

The Directive, from the point of view of the ODPP, is a coin with two sides.12

particular constitutional arrangements.

One side relates to rights that accrue to a victim when a decision is made to prosecute,13 and the other relates to the rights that accrue when a decision is

Statistics

made not to prosecute.14

Of the approximately 14,300 cases that the ODPP directs upon each year, approximately 4,100 result in decisions not to prosecute. As of June 30, 2017,26

Rights in relation to decisions made to prosecute

we have received:

The central theme of the Directive is in relation to the provision of clear, adequate and timely information,15 in a format that the victim can understand,16 to ensure

■ 967 requests for reasons; and,

that victims are kept fully abreast of the developments in a prosecution.

■ 342 requests for reviews.

Rights when a decision is made not to prosecute

In terms of the breakdown of the reasons that we have given following requests

Similarly, when a decision is made not to prosecute, the Directive puts the victim

from victims, the largest single cohort is in relation to sexual offences (37%),

in a more central role, particularly in relation to the giving of the reason for the

and the second largest category is in relation to offences of violence (25%), with

17

decision made not to prosecute and offering the reviews of those decisions.

the final largest group being made up of offences involving property (15%).

This builds upon the existing ODPP policy of giving reasons and offering reviews

Fatalities make up just under 8%. Of those requests for reasons, one-third

for decisions made not to prosecute.18 The right of the DPP to review a decision

become requests for review. Again, the breakdown of the offences is roughly

made not to prosecute was recognised by Irish domestic courts as long ago as

commensurate with the requests for reasons.

19

Eviston in 2002.

Of those decisions, eight have been reversed on review (three decisions related to complainants in one case), five were in relation to sexual offences, one fatal

139

Reasons

case, one assault, and one property matter. It must also be noted that the Gardaí

Article 6(1)(a) confirms the right of victims to request information on “…any

deal with roughly 280,000 prosecutions per annum under our delegated

decision … not to prosecute the offender”.20 The Directive is drafted with a

authority. For decisions made by An Garda Síochána without reference to our

two-stage process in mind. First, the victim should be given “…a brief summary

Office, victims will seek the reason for the decision made, and/or a review of

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LAW IN PRACTICE

that decision, from An Garda Síochána, who will provide the reason or conduct a review themselves.

system and their role within it, and the range of services and entitlements victims may access from their first contact with An Garda Síochána. Further, each victim will be individually assessed49 so that any special measures

Victims' Directive – practical changes

necessary to protect them from secondary and repeat victimisation, intimidation,

The Victims' Directive has had a number of effects, both in terms of the practical

or retaliation can be put in place during the investigation50 and during the court

effects of its content, and also the wider implications for the work of the ODPP.

process.51

In the absence of domestic legislation, the ODPP has relied upon the Directive

Special measures during investigations may include advice on personal safety –

having direct effect. Since November 16, 2015, this Office has:

including safety orders and barring orders, applications to remand the accused in

■ set up a dedicated Communications and Victims Liaison Unit;

custody or seek conditions on bail, and interviews being carried out in appropriate

■ updated our publications and website, and published new material setting out the way that victims can access the services provided by this Office;27

premises by specially trained persons52 and, in the case of sexual or gender-based

■ provided training for both practitioners28 and a number of non-governmental organisations; and,29

In court proceedings, the possibility of giving evidence through live television

■ liaised with the Department of Justice and Equality, An Garda Síochána and other agencies.

from such measures.56 The right to provide a victim impact statement will also be

violence, by a person of the same sex as the victim. link53 or from behind a screen54 will be extended to all victims55 who would benefit extended to all victims. Other measures in the Bill will ensure that the particular vulnerability of child

Once the Criminal Justice (Victims of Crime) Bill 2016 becomes law, it is envisaged

victims is recognised and that where a specific need to protect a victim is identified,

that all of the above measures will be revisited, and updated where necessary.

a court may exclude the public from proceedings57 and restrict questioning regarding the victim’s private life.58

Criminal Justice (Victims of Crime) Bill 2016

These measures complement those in the Criminal Law (Sexual Offences) Act

The Criminal Justice (Victims of Crime) Bill 201630 ("the Bill")31 has passed

2017, and the Domestic Violence Bill 2017.59

32

the Dáil and moved to the Seanad. It is envisaged that it will become law

One important change will be in relation to the use of intermediaries.60 This is a

very soon. It will place the provisions of the EU Directive on a domestic

provision that was included in the 1992 Criminal Evidence Act. Although a number

statutory footing. The Bill proposes that discreet, particularised pieces of

of attempts have been made to use the provisions of section 14, this provision

information33 will be provided by the Gardaí on first contact. The “extent and

has been utilised rarely in this jurisdiction to date.61 In our neighbouring

34

detail” of that information shall be determined “…by reference to the type

jurisdictions, the use of intermediaries62 involves an assessment of the individual

or nature of the alleged offence and any specific needs and personal

concerned, followed by a pre-trial “ground rules” hearing in which the parties

circumstances of the victim which are identified”.35

agree to certain rules by which the questioning of the witness in question will be

The victim will receive a written acknowledgement of the making of the

undertaken at trial.63

complaint.36 The victim can indicate how they wish to receive this information,

Many of the practices set out in the 2016 Bill were already in place in one form or

which will be supplied to them “…as soon as practicable, and in so far as is

another. This Bill will allow for a move towards uniformity and consistency of

practicable”.37 This information must be provided in clear and concise

practice.

language. It must be supplied in a language that the victim can understand. Interpretation and translation must be provided where it is necessary, to enable

Challenges

victims to participate in the criminal justice process.38

The Directive, and latterly the Bill, will represent a change in emphasis, rather than

The theme of the provision of information is continued in section 7 of the Bill.

tack. While this article focuses on the issues in relation to the investigation and

It introduces the concept of “…significant developments”39 that a victim

criminal justice process, the other amendments hardwire the requirement to

should be informed of, and includes information (including but not limited

anticipate and plan for the needs of victims in future. The Courts Service,64 for

to):

example, is under an obligation, in respect of the construction of new courthouses,

■ the arrest, charge, release on bail/remand in custody40 of a suspect;

to plan for the needs of victims and to ensure that they do not come into contact

■ the use of a victim impact statement41 made by the victim (extended42 to all victims), and the provision of a copy of any such statement made by the victim;

with suspects. That physical obligation is worth considering in the context of court procedures. If the court buildings of the future must take account of the requirements of the

■ “…a decision not to proceed with, or to discontinue, the investigation and a summary of the reasons for the decision”;43

Victims' Directive, there is a case that the court procedures should be subject to

■ the nature of the charge and the date of the trial;44

the same scrutiny. Building on existing practice:

■ the date of sentencing, and any appeal;45 ■ information on any escape from Garda or other custody;46 ■ the date of release of a convicted person from custody;47 ■ the death of such a person in custody;48 and, ■ restorative justice programmes. Victims should therefore receive comprehensive information on the criminal justice

■ scrutiny of court practices – could the evidence of children be taken to suit the needs of the child, for example by having their evidence heard only in the morning?; ■ greater use of special measures; ■ training;

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Conclusions

■ early assessment of victims, feeding into an early decision in relation to the needs of victims in court; and,

Francis Bacon said: “If we do not maintain justice, justice will not maintain us”.

■ early consideration in relation to the practical aspects of dealing with victims, for example discussions on how to deal with intermediaries, or the use of

finished. But that is not a pessimistic view. On the contrary, it is an optimistic view.

videolink.

The same is true for victims’ rights. This is a project that rightfully will never be The role of the victim will change in response to societal changes. There will always be a more vulnerable person whose needs will be required to be met, and it is only

Many practitioners already meet with victims and vulnerable witnesses within the

right and proper that the State agencies involved in the provision of services to

existing arrangements. Capturing that best practice (and training) in relation to

such people adapt, grow and innovate to ensure that the needs of those persons

these meetings, and all aspects of the victim/practitioner relationship, would lead

are met, so that the best possible service can be provided to people who need it

to consistency and uniformity of approach.

most. We look forward with our colleagues and partner agencies across the criminal justice system to that challenge.

References 1. Chapter 12 focuses exclusively on the rights of, and obligations to, victims of crime.

another Member State, Article 18: Right to protection, Article 19: Right to

2. See chapter 4.1.

avoid contact between victim and offender, Article 20: Right to protection of

3. Senior Gardaí, under Delegated Authority No. 3, and certain senior Revenue

victims during criminal investigations, Article 21: Right to protection of

officials, are entitled to make decisions in certain less serious types of cases

privacy, Article 22: Individual assessment of victims to identify specific

on behalf of the Director. All prosecutions in Ireland are prosecuted in the

protection needs, Article 23: Right to protection of victims with specific

name of the Director of Public Prosecutions (DPP). The DPP prosecutes all

protection needs during criminal proceedings, Article 24: Right to protection

offences on indictment under the terms of section 4 of the Prosecution of Offences Act 1974. 4. Chapter 4.4, page 12.

information from the first contact with a competent authority, Article 5: Right

5. Subject to the authority delegated by the Director to An Garda Síochána under

of victims when making a complaint, Article 6: Right to receive information

Delegated Authority No. 3, and to her other officers in the performance of

about their case, Article 7: Right to interpretation and translation, Article 8:

their duties. 6. See paragraph 4.11. 7. See Chapter 4, Guidelines for Prosecutors. 8. Directive 2012/29/EU of the European Parliament and of the Council

Right to access victim support services, Article 9: Support from victim support services, Article 11: Rights in the event of a decision not to prosecute, Article 20: Right to protection of victims during criminal investigations. 15. Article 6(2) (a) and (b).

of October 25, 2012, establishing minimum standards on the rights,

16. Per Article 3.

support and protection of victims of crime, and replacing Council

17. Proposed section 7(2)(c), (d), (e).

Framework Decision 2001/220/JHA. Available at:

18. The Director has given reasons and reviews in relation to decisions made not

http://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1421925131614&u ri=CELEX:32012L0029. 9. Available since section 5 of the Criminal Justice Act 1993 primarily for offences of violence. 10. Since section 16 of the Criminal Evidence Act 1992. 11. Since the DPP’s policy of November 22, 2008, in relation to fatalities where a decision was made not to prosecute. 12. See chapter 12 of the Guidelines for Prosecutors.

to prosecute in relation to fatalities since October 22, 2008. 19. [2002] 3 I.R. 260. 20. Subject to limited exceptions as provided for: prejudice to ongoing criminal proceedings, prejudice to ongoing criminal investigations, threats to life and limb, and threats to the security of the State as set out in recital 28. 21. Article 6(3). 22. Data Protection Act 1998. 23. Article 11(1): “Member States shall ensure that victims, in accordance with

13. Article 3: Right to understand and to be understood, Article 4: Right to receive

their role in the relevant criminal justice system, have the right to a review of

information from the first contact with a competent authority, Article 5: Right

a decision not to prosecute. The procedural rules for such a review shall be

of victims when making a complaint, Article 6: Right to receive information

determined by national law”.

about their case, Article 7: Right to interpretation and translation, Article 8:

24. Which allows for a restriction of this right of review to “serious crimes” in the

Right to access victim support services, Article 9: Support from victim support

event of a “decision not to prosecute. The procedural rules for such a review

services, Article 10: Right to be heard, Article 12: Right to safeguards in the

141

of child victims during criminal proceedings. 14. Article 3: Right to understand and to be understood, Article 4: Right to receive

shall be determined by national law”.

context of restorative justice services, Article 13: Right to legal aid, Article

25. "Recital 20 recognises that the role of victims in the criminal justice system

14: Right to reimbursement of expenses, Article 15: Right to the return of

varies across Member States and that this has an impact on the scope of rights

property, Article 16: Right to decision on compensation from the offender in

set out in the Directive where there are references to the role of the victim in

the course of criminal proceedings, Article 17: Rights of victims resident in

the relevant criminal justice system.”

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LAW IN PRACTICE

References 26. Since November 16, 2015.

50. Proposed section 16.

27. 'How we make Prosecution decisions', and 'How to request reasons and

51. Proposed section 18.

reviews'. Those booklets have been sent out to Garda stations

52. Proposed section 15.

countrywide, and to many victims' advocacy organisations. Conscious of

53. Proposed section 18(2)(c) and 26 (amending the 1992 Criminal Evidence

the increasingly diverse nature of Ireland’s population, and of the

Act in relation to the extension of those entitled to give evidence via

importance of making information easily accessible to those whose first

videolink, extension of the use of intermediaries, and use of screens).

language may be other than English or Irish, the booklets are available

54. Insertion of new s.14A into the Criminal Evidence Act 1992 by proposed

also in a range of other languages – Arabic, Chinese (Mandarin), French,

section 26.

Latvian, Lithuanian, Polish, Portuguese (Brazil), Romanian, Russian and

55. Based upon the experience of our colleagues in England, Wales and

Spanish. The booklets can also be accessed through our website –

Northern Ireland, it is thought that the biggest single change in court

www.dppireland.ie. We also updated our Guidelines for Prosecutors to

practice will be the expanded use of videolink evidence, especially in

its 4th edition (published in October 2016), to include a new chapter,

relation to domestic, and sexual, violence offences.

chapter 12, which deals with the rights of victims under the Victims' Directive.

56.Other measures include an obligation to consider the individual characteristics of the victim when deciding whether or not to utilise

28. This has been provided to all State solicitors, the staff of the office of the

special measures per new section 14B of the Criminal Evidence Act 1992

DPP (both administrative and legal staff), An Garda Síochána, the Health and

proposed by draft section 26 of the Bill, and the added option of the

Safety Authority and prosecutors nationwide.

removal of wigs and gowns (proposed new Section 14C Criminal Evidence

29. Training has been given to those involved in assisting victims of crime, e.g.,

Act 1992).

the Victims of Crime Helpline, the Rape Crisis Centre, AdVic, Victim Support

57. Proposed section 18(2)(a) and 19.

Europe.

58. Proposed section 18(2)(b) and 20 – this largely respects and preserves the

30. Available at: https://www.oireachtas.ie/documents/bills28/bills/2016/12116/B121a16d.pdf. 31. Available at: http://www.justice.ie/en/JELR/Pages/Criminal_Justice_Victims_of_Crime_Bill_2016.

discretion of the trial judge to protect a witness from oppressive questioning where: “…(a) the nature or circumstances of the case are such that there is a need to protect a victim of the offence from secondary and repeat victimisation, intimidation or retaliation, and (b) it would not be contrary

32. Passed Dáil Éireann on July 6, 2017.

to the interests of justice in the case, the court may give such directions as

33. At proposed section 6(1)(a)-(o) and deal with the role of the victim, relevant

it considers just and proper regarding any evidence adduced or sought to

information about the criminal justice system and the investigation of the

be adduced and any question asked in cross-examination at the trial, which

complaint. 34. Proposed section 6(2) of the Bill.

relates to the private life of a victim and is unrelated to the offence”. 59. At committee stage in the Seanad as at July 4, 2017, per:

35. Ibid. at 28 above.

http://www.oireachtas.ie/viewdoc.asp?DocID=34491&&CatID=59.

36. Proposed section 6.

60. A very useful account of the what, how and why in relation to

37. Proposed section 6(3), as amended on July 6, 2017. 38. Per Article 3 of the Directive.

intermediaries can be found at https://www.theadvocatesgateway.org/. 61. Again, anecdotal evidence from England and Wales, but especially

39. Proposed section 7(2)(a).

Northern Ireland, indicates that this is becoming an increasingly valuable

40. Proposed section 7(2)(a)(i)-(iii).

tool in assisting persons who suffer from a range of infirmities to enable

41. Proposed section 7(2)(b).

them to give evidence.

42. Proposed section 27 amends the definition of victim in line with the

62. Given the wide and diverse range of needs of the persons in question,

Directive, as it applies to section 5 of the 1993 Criminal Justice Act,

intermediaries come from a wide range of disciplines, for example speech

thereby entitling all persons (and relevant family members where

and language therapists, social workers and psychologists, and are

appropriate) who have “suffered harm, including physical, mental or

accredited to master's degree standard within the context of a professional

emotional harm, or economic loss, which was directly caused”, by a

register.

criminal offence to avail of the right to make a victim impact statement. 43. Proposed section 7(2)(c).

63. Agreed measures have included: the use of shorter, simpler language; better scheduling (e.g., school age children gave evidence from 10.00am

44. Proposed section 7(2)(g).

until 12.00pm, and are then returned to school); breaks every 20 minutes;

45. Proposed section 7(2)(h).

and, the use of graphic boards (detailing colours, shapes, letters, etc.) to

46. Proposed section 7(2)(k) and (l).

assist the victim in understanding the concepts being explored in a

47. Proposed section 7(2)(m). 48. Proposed section 7(2)(m)(v) and 7(2)(o). 49. Proposed section 14.

graphic form. 64. Proposed section 28 of the Bill, amending the Court Service Act 1998, with the insertion of s.5A.

THE BAR REVIEW : Volume 22; Number 5 – November 2017

142

CLOSING ARGUMENT

To get more barristers involved with the Wellness Committee, it is changing its name and CPD points will be on offer for attending events.

From wellness to resilience the main topic as being of importance and of interest to all members. Experience teaches us that our members are slow to attend such presentations unless combined in this way with traditional updates and lectures. This approach to the improvement of our resilience and performance will continue. In other words, the Committee will continue to promote and encourage many of the same important activities and concepts: most of us need more sleep and more

Mary Rose Gearty SC

exercise. Our outlook on our work profoundly affects our physical and mental health. In forming a healthy approach to work and stress, one of the most influential

The newest committee of The Bar of Ireland is one aimed at encouraging members

factors is the extent of our social support. This is where the various clubs and

to look after their mental and physical health. For its first year, the committee was

societies at the Bar come into play. More than this, however, the very library system

entitled the Wellness Committee. Its events attracted significant but contradictory

we operate is an effective support structure, even without further cementing those

responses: it is the most popular initiative of the last decade, judging by the

links by joining a club or society. One of the best ways to improve psychological

reaction from members, and the most strongly resisted, judging by attendance at

health is to improve social support. As a survey of over 2,400 barristers in the Bar

events organised to promote wellness. In this, it is perhaps the committee

of England and Wales concluded: “The deepest level of support within the

equivalent of Queen’s ‘Bohemian Rhapsody’, which remains one of the only songs

self-employed Bar is reported as coming from others within Chambers. This is

to appear regularly in lists of the best and the worst pop songs of all time.

further endorsed by the qualitative results which show a collegiate peer level

The Committee recently reflected on each member’s unexamined but immediate

bonding in relation to a shared experience of the role. Often individuals form close

reaction to the use of the word wellness. Unanimously, we found that its association

bonds when they share adverse or challenging situations or events – the challenge

with tea and sympathy did not resonate with us as professionals in a difficult and

and emotions associated becoming the relationship glue”.1

stressful environment. We were not as interested, professionally, in promoting

Collegiality remains one of the most important and performance-enhancing

wellness as we were in improving performance and resilience to stress. Conscious

features of life and work at the Bar and must be fostered and actively promoted at

of the fact that the exact same measures should be promoted in either case, we

every level of the Bar and on every circuit.

nonetheless concluded that labels matter. Our resolution was that the Committee

None of this is news to any barrister who has given these matters some thought.

must be renamed: it is now the Resilience and Performance Committee.

The very process of complaining or bragging about our morning in court, while

Just as the management of our practice is a necessary business skill, so too is the

sharing a coffee with colleagues, enhances our well-being. Oops. Resilience.

management of our health. To encourage better attendance at future events, the Committee will offer a resilience programme which will attract CPD points. It will provide assistance with stress and time management, just as practice management

Consult a Colleague Helpline

lectures focus on skills such as bookkeeping and the retention of data. The advice

01-817 4790/4791

of expert speakers will be offered on the causes of stress and how to take performance-enhancing measures. We will promote activities that increase resilience.

Wellness by stealth

Two barristers available at all times. References

The Committee has already embarked on a certain amount of wellness by stealth. In other words, when you attend a conference on tort law or an advocacy workshop,

Available on the website of the General Council of the Bar of England and

changing your approach to work through mindfulness/prayer/positive thinking

Wales: www.barcouncil.org.uk.

(delete as appropriate). These presentations are slotted in between the lectures on

143

1. ‘Wellbeing at the Bar: A Resilience Framework Assessment’. April, 2015.

you may find yourself listening to a short presentation on boosting health and

THE BAR REVIEW : Volume 22; Number 5 – November 2017