On Tuesday the 10th of September fifteen members of the Dillon Solicitors team spent the day in The Ronald McDonald House Cooking for families programme.

We had two groups, one making lunch and one making dinner.

This activity was in line with one of the Firm’s core values in “giving back to the community”.

Cooking4Families helped us “give back to the community” as their programme helps you provide the families of very sick children In Crumlin Hospital with a healthy, home-cooked meal after a long and often times stressful day at the hospital and relieving them of the added worry of having to cook themselves.

We hope this small contribution gave some comfort to the families of Ronald McDonald House.

This experience was certainly fuel for our souls!

 

 

 

High Court – HIV, Privacy, Public interest & Responsibility

 

The High Court address HIV, the right to privacy, public interest and personal responsibility

A recent High Court decision by Judge Michael Twomey, (The Child and Family Agency v AA & Anor [2018] IEHC 112), addressed HIV, the right to privacy, public interest and personal responsibility.

Background

The case involved a 17-year-old boy (A), who was in State care and had contracted HIV from his mother during pregnancy. ‘A’ had begun to spending time with a 17-year-old girl (B), who was unaware that ‘A’ had a diagnosis of HIV.

‘A’ denied that there was a sexual relationship between him and ‘B’ but due to their conduct the Child and Family Agency (CFA) had reason to believe that they were in fact engaging in sexual activity.

In MQ v Gleeson, the court stated that the duty imposed on the CFA in Section 3 of the Childcare Act 1991 was a duty to protect all children, not just those in State care. The court further stated that the duty of the CFA extended to children who were likely to be subject to a specific potential risk.

The CFA in acknowledging that their duties were not limited to children in statutory care, applied to the High Court to seek permission to breach A’s confidentiality in order to protect B from the potential risk of contracting HIV.

Decision

The High Court considered the duties of the CFA and aligned them with that of Doctors. The court confirmed that the test for breaching confidentiality was whether there was a significant risk of death or very serious harm to a member of the public. The public interest in protecting an unsuspecting member of the public justifies the breach of confidentiality.

The High Court concluded that in these circumstances, the CFA were not entitled to breach ‘A’s’ confidentiality to warn ‘B’ of the potential risk. They stated that while HIV is still considered a significant disease, it is no longer a terminal disease and can be managed.

In this regard, the High Court felt that there was a greater public interest in ensuring that people with HIV were not deterred from making complete disclosure with their Doctor and seeking proper medical attention.

While the High Court accepted that parties were minors, they further noted that they were both imminently due to turn 18 and therefore, ‘B’ must bear some personal responsibility for any potential outcome in deciding to engage in sexual activity with ‘A’ and could not be considered an innocent party if she chose to take such a risk.

If you require any further information on the above topic please do not hesitate to contact Brendan Dillon on 01-2960666.

 

Pursuing all Defendants

Pursuing all Defendants

Section 35 (1)(i) of the Civil Liability Act 1961 states that a Plaintiff will be responsible for a degree of liability where there are multiple wrongdoers and the Plaintiff did not pursue all of them in litigation. This together with recent case law illustrates the necessity to ensure that all the correct Defendants to a cause of action are sued.

Where more than one person is found liable but only one of those people is sued, that Defendant who is sued can hold the Plaintiff responsible for the wrong doing attributable to the party who is not sued. This section applies to Defamation proceedings also so it is important for the Plaintiff to sue the author as well as the host or person who republishes.

The balance of fairness in modern litigation may require that the legislation be reviewed. The Statute of Limitations have changed; modern technology and social media might make it impossible to identify all Defendants; a potential Defendant may not be able to meet any award for damages and issues relating to vicarious liability might arise. Equally, the range of Defendants may be broader under these considerations also.

Initial instructions are very important and when in doubt, it is suggested that all potential wrong doers are pursued.

CONCLUSION

As a Plaintiff, it is very important to identify the correct Defendants and ensure all are included in the litigation. It is better to let a Defendant out of the proceedings than realising too late that one ought to have been included.

As a Defendant, you may be able to attribute that liability found against a non-party to the proceedings against the Plaintiff if that Plaintiff did not sue all wrong doers. This may result in a reduction in the damages relative to the non-party portion of liability. For example, if the Defendant is found 40% liable but a non-arty found 60%, the court may reduce the award of total damages by 60%.

If you have any litigation queries, please do not hesitate to contact Niall MacCarthy or Brendan Dillon of this office on (01) 2960666 or niallmaccarthy@dillon.ie.

 

 

Protect Your Business

Business owners- Planning for the future

It is a common trait among business owners that they fail to properly plan for the future of their business. This can create significant stress and worry for business owners and can also bring about outcomes which are not very tax efficient for them. On the other hand planning for one’s exit from the business, if done in advance, can result in a much more seamless exit which can often be much more tax efficient.

We now look at the traditional way in which a business owner can exit from a business can be summarised as follows;

1. Sale of the business in the open market
2. An internal buyout by management
3. Transfer to a fellow member of your family
4. Winding up of the business/liquidation

We now look at each of these individually.

Sale of business in the open market

The most important aspect of selling on the open market is that the business owner will usually receive value not just for the assets of the business but also the goodwill. However, the goodwill very often arises because of the energy, enthusiasm and contacts of the business owner and it would be rare that the sale of any business would take place without the business owner remaining in place for a work out period which might be up to 3 years. Accordingly, if a business owner wishes to exit by selling the business he/she needs to be aware that he/she will need to stay on in the business for a period of time so as to copper fasten the existing clients/customers of the business. It will usually be the case that a significant amount of the purchase price will be linked to retention of key customers.

If there is cash in the business it may be necessary to the existing business owner to either draw out the cash or to extract the cash into a separate entity so that the purchaser is not paying for the cash element of the business.

Buyout by management

This can sometimes be a useful option if the business owner puts in place a very good, strong capable team who have the resources to be able to buy out the interest. This can sometimes be done by a buyback of shares either from an existing shareholder or if it can be structured correctly by the company itself. The latter option can only be availed of if there is sufficient distributable reserves in the company. Specific tax advice would need to be taken in this regard.

The most important advantage of a management buyout is that the management already are aware of the business, they know the employees and the transaction will usually be a much more seamless one and it might be more tax efficient as it may enable the exiting shareholders to possibly access any cash held tax efficiently in a share buy back situation.

Transfer to a family member

This option may attract CAT business relief if there is a gift element to the transfer and so can be very attractive from that point of view. Capital gains tax may arise but this may be mitigated by claiming entrepreneur relief for retirement relief . Specific tax advice should be taken in this regard.

Windup/liquidation

If it is not possible for the existing shareholder(s) to exit or indeed if there is more than one owner and they cannot agree how the business is to be disposed of then it may be necessary to close down the business. If the business is operated under the vehicle of a limited company then it would be necessary to liquidate the company so that the shareholders can access any cash and other assets. The difficulty with the liquidation/wind up option is that the exiting shareholders will not get any benefit for the goodwill and it is likely that the assets of the business will generally be sold at a discount .It will also mean that the employees will more than likely lose their jobs and this can be very stressful and upsetting for all concerned.

Summary

The most important consideration for any business owner is to put in place a plan and take legal and tax advice. This will also give a focus to build up the business as efficiently and is possible to make it much more attractive for a prospective purchaser.

For further advice on any business/ company related matters please do not hesitate to contact either Brendan Dillon or Pauline Horkan on 01-2960666.

Law Society calls on major reform in Family Law

In a major submission in May of this year the Law Society declared its support for the changes to the Referendum (subsequently passed) which has allowed for the removal of Divorce from our constitution and for it to be dealt with in legislation. The Law Society also supported the replacement of the period of 4 years by 2 years in the Family Law Divorce Act. We still await the enactment of legislation to change the period from 4 years to 2 years.

In addition to the reduction in the time period for “living apart” from 4 years to 2 years in order to be entitled to bring an application for divorce the Law Society made other proposals designed to improve the circumstances for parties engaged in family law proceedings.

• The establishment of a specialised family court structure.

• In a clear definition as to what “living apart” means i.e. the test which must be satisfied to entitle parties to bring an application for divorce.

• A set of clear guidelines for the court to determine what financial relief should be made available to the parties in the form of maintenance, lump sum payments, property adjustment orders and pension adjustment orders.

• Provision for “clean break” divorces in certain circumstances. At present, the Irish Courts do not recognise the concept of clean break and the issue of maintenance is generally left open for future applications.

• Recognition of pre-nuptial agreements.

• Review of the issue of maintenance.

• Review of the Succession Act in relation to waving Succession Act rights to allow for a clean break scenarios.

• A clear position with regard to the recognition to foreign divorces.

• The greater use of non-court options such as medication/ collaborative law.

• Bona Fide researchers to be allowed into Courts to do reports (on an anonymised basis) on trends in the Courts’ decisions.

Hopefully many, if not all, of these recommendation will be taken on board by the government in due course. The establishment of a specialised Family Law court building such as the Criminal courts building in Parkgate Street is long overdue and required in order to protect the dignity and provide adequate facilities for the parties involved.

For any advice or assistance on any family law matter please do not hesitate to contact Brendan Dillon on 01-2960666 or info@dillon.ie

Brexit and its impact on Family Law in Ireland and Britain

The impending departure of Britain from the EU will cast huge doubt on the current status of supremacy of EU Law in relation to Family Law in circumstances where recognition of orders between Ireland and the UK are concerned. At present there are 2 Brussels regulations known as Brussels 1 and Brussels 2.

Currently Brussels 2 sets out the basis for jurisdiction in matters relating to the divorce, legal separation or marriage annulment i.e. sets out which court is entitled to hear matters relating to these matters.

The departure of the UK from the EU will of course change all that as the EU will no longer govern litigation which emanates from the UK .In order to provide some form of legal continuity the European Union (Withdrawal) Act 2018 will enable the transposition of directly applicable already existing EU Law to British Law which will be known as “retained EU Law”.

However in our view this will not prevent huge uncertainty and confusion arising in relation to the recognition of foreign divorces. As an example it is likely that individuals who are domiciled in Ireland but are currently involved in divorce proceedings in Britain who will ultimately obtain a divorce through the British Courts could be faced with the prospect that such a divorce will not be recognised in Ireland.

The effect of the British withdrawal is that instead of EU Law having supremacy the Irish Courts will revert to the Domicile and Recognition of Foreign Divorce Act 1986 when deciding whether to recognise a UK divorce. In order to recognise a foreign divorce in a state outside the EU (a category into which the UK will fall post 31st of October) the Irish courts will only recognise such a foreign divorce where one of the parties to the divorce is domiciled in the Jurisdiction which grants the Divorce Decree i.e. in the UK.

In relation to issues such as maintenance steps are being taken so that Britain will continue to be a member of the Hague Convention on choice of court agreements and the Hague Convention on the International Recovery of Child Support and other forms of Family Maintenance Act 2007 .In order to enforce British judgements it may be necessary to issue fresh proceedings in Ireland. The position in this regard may not be clear for some time.

In order to demonstrate the significant changes that may be brought about by the British withdrawal from the EU it is useful to have regard to a Court of appeal decision in Ireland in a family law case of MH v MH. In this case a dispute arose as to whether the Irish Courts or the UK Courts had jurisdiction to hear a family law application. Solicitors for the husband had issued a special summons in the High Court which had been stamped by the High Court office shortly after 2:30 pm on the 7th of September 2015 and was served on the wife on the 9th of September 2015. On behalf of the wife an English Divorce petition was issued in the English Family Law Court on the 11th of September 2015 and was served on the husband on the 15th of September 2015. In evidence before the court it was accepted that the wife’s divorce petition in its envelope was delivered by the document exchange to the Family Court Office at 7:53am on the 7th of September 2015.

The High Court (and upheld by the court of appeal) decided that the matter needed to be referred to the Court of Justice of the European Union which held that in accordance with article 16 (1) (a) of Council Regulation (EC) 2201/2003 “the time when the document instituting the proceedings or an equivalent document is lodged with a court” will take preference i.e. the English proceedings took precedence. This meant that the proceedings then proceeded in the English court and the Irish proceedings were stayed. However post Brexit what could happen is that both sets of proceedings would proceed and if both parties were domiciled in Ireland the English divorce would probably not be recognised in Ireland.

Summary: It is very clear that there are significant challenges in establishing the precedence in relation to International Family Law proceedings and given the closeness of ourselves to the UK this will undoubtedly create difficulty with regard to parties’ instituting proceedings in either the UK or Britain where they are seeking reciprocity in the other jurisdiction.

For any advice or assistance in this area on in any family law matter please contact Brendan Dillon on 01-2960666 or info@dillon.ie

Dissipation of Marital Assets/Conduct

Dissipation of Marital Assets/Conduct

The Court has an obligation to ensure that proper financial provision is made for both spouses in Separation and Divorce proceedings. The Family Law Act 1995 and the Family Law (Divorce) Act 1996 give the Court discretion in determining proper financial provision for the spouses having regard to a list of factors set out in each of the Acts.

The Court’s discretion in making proper provision is considered to be wide ranging except when it comes to considering the conduct of the parties which can only be considered relevant to the issue of proper provision if it would be unjust to disregard it.  The conduct must be of an exceptional nature for it to be taken into account by the Court.

It is clear from caselaw that in certain circumstances the Court may deem it necessary to reflect on the financial misconduct of one of the spouses when determining proper provision, particularly where such financial misconduct has led to the dissipation of marital assets.

In the case of H v O’N, the husband’s financial misconduct had significantly depleted the marital assets such that the Court’s ability to make proper provision was weakened. The Court reflected on the husband’s conduct in their decision to the extent that the wife was awarded a slightly higher percentage of the assets than would otherwise have been the case.

For assets to be added back and reattributed to a spouse the Court must be satisfied that there has been a deliberate dissipation of assets by the other spouse. Furthermore, the Court will only ‘add back’ assets that have been deliberately dissipated if it is required to achieve fair proper provision.

In conclusion, the general rule is that conduct is irrelevant to the Courts when determining proper financial provision. It is only where such conduct is relatively exceptional and would be unjust to ignore that it may be taken into account by the Court.

 

If you require any advice on any family law matter, please do not hesitate to contact Brendan Dillon on 01 2960666

Frequently asked questions on Re-Mortgage

 

Frequently asked questions on Re-Mortgage

Why should somebody consider a re-mortgage?

  • Now that is starting to change as people realise that many Irish mortgage holders are simply paying too much on their mortgage and are starting to consider moving to a cheaper lender. Maybe your lender hasn’t offered you a new rate after the end of a fixed rate or a variable rate is too high. Somebody on a variable rate could save thousands by simply moving to a cheaper lender.
  • People should review their current mortgage terms and also review other offers by alternative lenders and a mortgage broker could assist with same.
  • There is huge competition in the mortgage market with interest rates, and many lenders have cash back offers or are making contributions towards your legal fees.
  • Historically home improvements were the main reason for people remortgaging in Ireland and the method, usually, was to call to your own lender and get a top up loan which was usually more expensive than an already expensive mortgage

If a person decides on a re-mortgage deal, what do they do next?

  • They need to check that their current mortgage has no penalties for early re-payment. If it does, they will need to ensure the penalty will not exceed the savings made by the new loan. However, as interest rates have been reduced, you may still make a saving by paying the penalty and switching to a lower mortgage rate.
  • Make contact with the new lender or a mortgage broker and start the application process.
  • Instruct a Solicitor.

Why does a Solicitor need to be instructed?

  • You will need to take legal advice in relation to the new mortgage offer which issues from the new lender. The Solicitor will review same with you in detail and advise of all conditions and implications of same. There will be conditions precedent that must be attended to prior to the funds issuing. They will witness your signature on the loan documents and return them to the lender.
  • The new lender will be taking the property as security for the loan and they will require a Solicitor to certify the title. This means that the Solicitor must review all title deeds and planning matters and confirm to the Bank that there are no issues with the property.
  • The Solicitor will request a redemption statement from your current lender.
  • The Solicitor will send the requisition to the lender for your loan funds and they will issue to the Solicitors client account.
  • The Solicitor will discharge your current mortgage and register the Deed of Release to remove that lenders charge from your property.
  • The Solicitor will arrange for you to sign the charge documents and will register the new lender’s charge on the property.
  • Once the charge is registered the Solicitor will return your title deeds to the new lender.

Should a person wait until their new loan offer issues before instructing a SolicitorThe reason for same is to prevent any delays with the transaction.

  • No. We would suggest that as soon a person decides they are going to apply for a re-mortgage that they instruct a Solicitor at that point.
  • The Solicitor will need to obtain the title deeds to the property in order to review the title and they will be held by the person’s current lender. The Solicitor will require the client to sign an Authority to permit the lender to release the title deeds to the Solicitor. It can take a few weeks for the lender to send the title deeds to the Solicitor.
  • There are also documents that the Solicitor will need to obtain. From the client they will require receipts for the payment of the Local Property Tax, copies of planning permission and Architects Certificates for any works carried out the property by the client.
  • If the client does not have these planning documents the Solicitor will request them from the Planning Department of the County Council and will arrange for the Certificates to be prepared by an Architect.
  • At Dillon Solicitors we like to have this part of the work completed prior to the new loan issuing, so that the transaction can move quickly for the client.

Apart from applying for the loan and providing the Solicitor with the necessary documents is there anything else the person will need to do? 

  • Yes there will be conditions of the loan offer which they must comply with. For example obtaining a mortgage protection policy and assigning it to the new lender, obtaining home insurance and noting the new lender on the policy, submitting a direct debit mandate to the bank.

How long does the transaction take

  • From the loan issuing, approximately 4 weeks.

If you require any assistance on this or any other property related matters please contact Lorna McArdle on 01 2960666