The Affordable Housing Bill 2020

 

 

The Affordable Housing Bill 2020 published by Minister for Housing, Local Government and Heritage

On the 20th of January 2021, the Affordable Housing Bill was published by Minister for Housing, Local Government and Heritage, Darragh O’Brien. The Bill introduces two significant schemes to address the housing affordability crisis in Ireland: –

  1. A new Affordable Purchase Shared Equity scheme where the State would provide equity support to households seeking to purchase homes in the private market but are unable to secure the full mortgage to do so.
  1. The introduction of a new form of tenure in ‘Cost Rental’. This scheme will provide the basis for the first 400 Cost Rental homes in the State which will be delivered in 2021 with many more in the pipeline in the years thereafter.

 

Affordable Purchase Shared Equity Scheme

This scheme provides for the State to take up to 30% equity in the property and the Purchaser will take out a mortgage on the balance of the purchase price. At present, the following conditions must be met to avail of this scheme:

  1. The property must be a new home
  2. The purchaser must be a first-time buyer

However, further conditions may apply that are yet to be determined. These may include conditions in relation to price, salary caps on eligibility and geographical location.

Details of eligibility will be set out in separate guidelines to allow the Minister to retain flexibility to vary the criteria from time to time.

The scheme will allow for an option to buy out the State’s equity share once certain conditions are met.

It is envisaged that the once the scheme is finalised it will be open to all new build homes, subject to regional price caps and targeted at first time buyers.

Minister O’Brien has confirmed that that an initial €75 million has been set aside in Budget 2021 to start the scheme and this will be boosted with additional private investment.

 

Cost Rental Scheme

The scheme introduces Cost Rental tenancies, a form of long-term rental. In this new form of tenure, a state body, such as a local authority, will provide rental accommodation to those who are above the threshold for social housing but unable to afford to buy their own property or rent on the open market. It is important to note that Cost Rental tenancies are not classified as social housing.

The landlord will charge rent based on the cost of managing and maintaining the property rather than for profit. This will result in a lower rent than market rent for Cost Rental tenants.

Cost Rental tenants will also be covered by the Residential Tenancies Act 2004 to 2020 and may avail of all legal protections as tenants in the private rental sector.

The Bill allows for rent to be increased on an annual basis in line with inflation to account for potential increases in costs over time.

The Cost Rental Equity Loan (CREL) scheme was introduced in Budget 2021 and is set to give €35 million in loan funding to Approved Housing Bodies for the purpose of the provision of Cost Rental Housing.

 

While final details are still to be ironed out regarding the conditions of the schemes, the Bill is a step in the right direction towards addressing the current housing affordability crisis in Ireland.

If you have any queries in relation to the above or any other matter please do not hesitate to contact us on 01-2960666

 

 

What is reckless trading?

 

What is reckless trading and how can Directors be personally liable for the debts of a Company?

 

The Irish Companies Act of 2014 provides sanctions for Directors who are found to have been involved in reckless trading. This includes the possibility that a Director can ,in certain circumstances ,made personally liable for the debts of the Company of which he was a Director. Regrettably, the Act does not include a definition of “recklessness”. In order to understand what reckless trading means we have to look at relevant case law.

 

In this regard, some guidance is provided in a judgment in an English case of Shawinigan Limited -v- Vokins & Co. Ltd. In which it defined recklessness as “gross carelessness”. It expands on the definition by stating that it involved taking a risk which having regard to all of the circumstances would be described in ordinary parlance as “reckless”.

 

It is important to note that even where the Court may find that there was reckless trading the Court has a discretion to decide whether that Director should be personally liable for the debts of the company. If the court is satisfied that the Defendant acted honestly and responsibly then the Court can absolve the Director from personal liability.

 

This discretion is likely to be relevant in relation to any cases which are brought by creditors in relation to Covid related liquidations.

 

The ODCE issued guidelines in June 2020 relating to applications to have Directors restricted as Directors (which usually follows after a Company has gone into liquidation) .These guidelines set out the ODCE’s focus on assessing whether the Directors acted “honestly and responsibly” in continuing to run the business while technically insolvent and that the particular and specific circumstances brought about by Covid 19 would be taken into account.

 

There is a very high bar for a creditor to overcome if he or she is to have a Director fixed with personal liability for the debt of an insolvent company. In effect the loss to the creditor must have been foreseeable to a high degree of certainty.

 

Accordingly, if advising a creditor in bringing an application to have a Director made personally liable for the debts of the Company of which he was a director one has to be aware of the significant challenges involved in such an application.

 

For any information or advice on any Company Law matter, please do not  hesitate to contact Brendan Dillon or Conor White on 01 2960666.

Can High Court rectify out of time filings in the CRO ?

 

Can High Court rectify out of time filings in the CRO ?

One of the nightmare scenarios that any practitioner faces is failing to file documents in the Company’s Office within the prescribed time.

A very recent case came before the High Court where an accountant had overlooked the filing of documentation under Section 4 under what is known as a summary approval procedure relating to a proposed reduction in share capital.

The Court was asked to make an Order declaring that the proposed reduction in share capital should be sanctioned as if the filing was made in the Company’s Office on the basis that this was just and equitable to do so.

In considering whether the Court should do so the Court took into account the following factors in deciding that it was just and equitable:

1. That all other requirements of the summary approval procedure were complied with.
2. The shareholders of the company did not object.
3. The Declaration by the Directors of Solvency was a protection to creditors.
4. The failure to file was due to inadvertence rather than any other reason.
5. The company remained solvent.

In a separate case of Wee Care Limited -v- CRO, the company had filed a full set of financial statements even though it was only required to file abridged financial statements. It brought an application to replace the full set with the abridged version as was required .The application was ultimately heard by the Court of Appeal which noted that the filing of abridged accounts was optional, and the company was perfectly entitled to file statutory financial statements and by so doing it didn’t in any way render the statements defective or in breach of its company law requirements.

The Companies Act is an extremely detailed and comprehensive Act, but it very often provides the answer to questions which Directors of Companies may have in relation to complex matters of law.

If you require any advice in relation to any of the matters referred to in this article or any other company Law matter, please don’t hesitate to contact Brendan Dillon or Conor White on 01-2960666.

High Court Decision re variation of Barring Order

 

High Court Decision re variation of Barring Order

 

In a recent decision Mr. Justice Max Barrett made it clear in a case of C -v- C that the High Court could not vary a Barring Order in Judicial Separation Proceedings where the Barring Order had been previously made in the District Court.

 

In essence, the Court was making it clear that the only circumstances in which the Barring Order could be varied would be on an appeal of the said Barring Order to the Circuit Court.

 

The Court did make Orders revising access arrangements in favour of the father but put a stay on same to allow the father to revert to the District Court to seek such variations to the Barring Order that would allow him to exercise the access.

 

For any advice on any Family Law aspect do not hesitate to contact Brendan Dillon or Lorna McArdle on 01-2960666

Top 10 tips on negotiating a redundancy package

 

Top 10 tips on negotiating a redundancy package

 

Being advised that your position is being made redundant can be a harrowing and distressing experience for any employee. Due to the uncertainty as to whether as to how long it will take you to get another similar position it is very important to maximise the redundancy payment that is paid to you by your employer.

 

The following are some factors to be taken into account:

 

  1. Set out your objectives as to what you want the outcome of the redundancy process to be.
  2. Check your Contract of Employment.
  3. Check the employer’s redundancy policies and in particular it’s selection procedures for redundancy.
  4. Take advice as to whether there are any areas where the employer may have breached its own contract/policies i.e. by way of unfair selection of redundancy or indeed if I could be argued that the proposed redundancy is a disguised attempt to move the employee on. This may provide leverage in the redundancy negotiations.
  5. Do as much research as you can to see if there was a precedent for an enhanced redundancy payment with other employees.
  6. Take into account any other entitlements which you may have under your contract i.e. bonus, holiday pay, other benefits such as private health insurance, company car etc.
  7. Always negotiate in a polite and measured but firm fashion.
  8. Take legal/tax advice in relation to maximising the redundancy payment and ensuring it is paid in the most tax efficient way. An employer will often agree to make a contribution towards professional advice that is required.

 

For any further advice on employment matters please do not hesitate to contact Brendan Dillon or Conor White on 01 296 0666.

 

Security for Costs Orders-An Update

Security for Costs Orders-An Update

 

Security for costs is an order which may be granted by a Court where a Defendant, against whom a Plaintiff has issued proceedings, has concerns about a Plaintiff’s ability to discharge a Defendant’s costs should a Plaintiff’s claim is unsuccessful.

 

An order for security for costs can require a Plaintiff to lodge a sum of money into the Court to meet the costs of the other party of the proceedings. The making of these types of orders differs as to whether or not a Plaintiff is an individual (a natural person), a company governed by the Companies Act 2014 or a corporate entity which would be any company registered outside of the jurisdiction, an unlimited company or an entity otherwise than a natural person.

 

The amount of security which a Court may order will differ depending on whether the Plaintiff is an individual or a Corporate Entity. The rule of practice has developed that security will be ordered as against an individual to approximately one third of the estimated costs and in the case of a corporate entity, full security is usually required.

 

The amount of security is entirely at the discretion of the Court and is governed by order 29 rule 7 of the rules of the Superior Court. This provides the Master with the power to determine the amount of security to be ordered. As this is essentially a mathematical exercise the Master will require the evidence of cost accountants in relation to the calculation of the estimated costs.

 

The Court may require the Plaintiff to make a direct deposit of the security with the Court’s accountants.

 

 

Individuals

Order 29 of the Rules of the Superior Courts outlines the procedure to apply for Security for Costs as against Individuals.   Since the application of European Law and, in the particular, the Brussels Regulations, the modern position is that security for costs will not be ordered against an individual who is a national of and resident in either a member state of the European Union or a contracting state of the Lugano Convention.

 

A Defendant must first issue a request for voluntary security to the Plaintiff. The Plaintiff must then either provide security or provide confirmation that they will provide security within 28 hours of the voluntary request.

 

If security is not provided on a voluntary basis it is then open to the Defendant to issue a Notice of Motion grounded on an Affidavit signed by the Defendant themselves which sets out the background of the matter, the bone fida defence including the specific or ascertainable defence on evidence (not merely an assertion that they have a defence to the action, but evidence establishing a specific or ascertainable defence) and demonstrating that the Plaintiff is ordinarily resident outside of the jurisdiction, the European Union or a contracting state of the Luganon Convention. The Affidavit must also outline how the applying party first sought the security on a voluntary basis.

 

In recent years there have been several attempts to extend the jurisdiction requesting a Court to order security for costs as against a Plaintiff who simply does not have the means. This has been resisted by the Courts and they have reiterated that the purpose of the relief of security for costs is to protect a Defendant with a prima facia defence from being left in a position where they have no ability to enforce an order for costs against a foreign Plaintiff. Just because a Plaintiff is known to have little or no means should not allow the Defendant to obtain an order for security for costs prior to the ultimate hearing of the action.

 

 

Companies

When looking to secure an order for security for costs as against a company, this is governed by Section 52 of the Companies Act 2014. This provides that a Plaintiff Company in any action or other legal proceedings may be required to give security for costs if it appears to a Judge with jurisdiction by way of credible testimony that there is reason to believe that the Plaintiff Company will be unable to pay the costs of the Defendant if successful in his or her defence.

 

Section 52 only applies to companies registered and governed by the Companies Act 2014. Therefore, unlimited companies incorporated within the state or companies registered outside of the jurisdiction are not included in this process.

 

To satisfy the requirements of section 52 the Defendant applying for security must show that they have a prima facia defence to the Plaintiff’s action and that the Plaintiff would not be in a position to pay the Defendant’s costs if the defence was successful.

 

The Court may exercise its discretion in applying Section 52 as it is not mandatorily applicable. The Court may therefore when considering such a motion, consider the circumstances of the parties and may have regard to factors such as whether the Defendant may be potentially responsible for the Plaintiff’s inability to provide security or whether the issue is a matter of public importance. Importantly the reference under section 52 to “other legal proceedings” does not limit the matter to litigation and has been extended to such proceedings as decisions of the taxing master and judicial review.

 

Other Corporate Entities

In order to seek security as against any other corporate entity not covered by the previous procedures, the Court’s jurisdiction to deal with such corporate entities is derived from order 29 of the rules of the Superior Court (which governs the security as against individuals) and relies upon the principles applied by section 52 of the Companies Act. Therefore, a similar procedure in seeking the order applies to corporate entities such that they must attempt to agree the security on a voluntary basis and if the security is not provided, a Notice of Motion and Affidavit will issue in the same terms as against an individual. Thereafter the Court may apply the principles under section 52 as to whether or not they should exercise their discretion and take the prevailing circumstances of the proceedings into account.

 

Fairness

The ordering of security for costs is clearly a compromise of a Plaintiff’s right to litigate which was defined in Tuohy v Courtney 1994 as the right to achieve by action in the Courts the appropriate remedy upon of an actionable wrong causing damage or loss as recognised by law. This is separate and distinct from a Plaintiff’s right of access to the Courts.

 

The Court has emphasized that the starting point is always that the Plaintiff has a constitutional right to litigate a matter and, although it is possible to compromise this right, the Court must exercise their jurisdiction in granting such security carefully and must be satisfied that the Defendant has established at least the minimum requirements for the granting of such security.

 

Indeed, the constitutionality of section 52 has been considered by the Courts previously. The Court has commented that it is a balancing of Plaintiff’s right to litigate and a Defendant’s right to seek security for costs. It has been noted by the Court that there is reasonable and objective justification where the aim is a legitimate one of balancing the rights of each party to access the Court in the first part and resistance of unstateable claims in the second.

 

Resisting an Application for Security of Costs

A Plaintiff may of course resist an application for security which may allow the Court to exercise its discretion to refuse the application. The burden of proof rests with the Plaintiff to provide prima facia evidence of the Defendant’s responsibility in the matter complained of. The decision of a Court to order a security for costs in a major one as it is signifies the Court’s acknowledgement that the Defendant has a stateable and evidence based defence.  Such an Order may indeed bring the entire matter to an end if a Plaintiff decides not to proceed with their claim on foot of such an order being made against them.

 

Evidence such as the Defendant’s actions causing a Plaintiff’s difficult to provide security will assist the Court in refusing an application of this nature.

 

It is very difficult for a Plaintiff to secure an order for security for costs as against a Defendant in circumstances were, they already exercise extraordinary control in their ability to issue proceedings as against Defendants. However, the Courts have in limited circumstances allowed for orders to be made as against Defendants, particularly in circumstances for example where a Defendant has appealed a matter to the Supreme Court but where their counter claim bears no connection to the Plaintiff’s original claim. The granting of Security for Costs against Defendants is likely to be extremely limited.

 

Given the potential outcomes associated with security for costs being awarded to the Defendants, the Courts are aware that this may be applied as a tactical strategy by Defendants and are mindful of same. It would be important for all Plaintiffs who are requested to provide security for costs to reassess their claim and the Notice of Motion and Affidavit from the Defendant to ascertain how they can resist such an action. Additionally, Defendants should be cautious in their use of this application to Court and ensure that they reach the minimum requirements with supportive evidence prior to considering making such an application.

 

If you require advice on any litigation matter or any other issues involving a dispute please contact Donna Phelan or Conor White on 01 2960666

Claims Against an Estate

 

Claims Against an Estate

 

In relation to Estates, Beneficiaries are frequently reluctant to take action and bring any claim against the estate as often the Executor would be well known to them, if not a Family member.

It is important however that beneficiaries keep in mind the timelines involved in bringing a claim to ensure they are not statute barred.

 

In the case of Caitriona Cunniffe v. Michael Cunniffe and Martina Whyte Justice Meenan summarised the basis on which the claims being brought by the Plaintiff were statute barred.

 

The case involved the estate of Patrick Cunniffe who had died without making a will in 1987. He had four children, the Plaintiff Caitriona Cunniffe being the only one who was a minor at the date of his death. The siblings agreed that Martina Whyte (Caitriona’s Sister) would administer the estate and they all agreed that their Brother Michael would continue to run the farm which he had done for many years prior to their Father’s death. They also agreed that the assets of the farm would be transferred to him and an agreement was signed where the other Siblings agreed to disclaim their interest in their Father’s estate in consideration of Michael agreeing to pay them each £30,000.00.

 

Caitriona Cunniffe did not take proceedings against the estate until May 2016. Her claims included that misrepresentations had been made to her. It was found in relation to the claim of misrepresentation that she was statute barred as issues had arisen with her Brother in 2003/ 2004 and therefore she was deemed to be aware of the difficulties at that time and had 6 years within which to bring her claim and as it was now 2016 she was statute barred.

 

Caitriona Cunniffe’s claim against her Sister Martina as the administrator of the estate was also found to be statute barred as once the administration had taken place she had 6 years after that time to bring a claim which she had failed to do. The time starts to run on the timeframe once the administrator is able to deal with the assets which would have been once the Grant of Administration issued to Martina Whyte.

 

Caitriona Cunniffe had also brought a claim for personal injury which should have been taken within two years and therefore again she was statute barred.

 

The only option left for Caitriona Cunniffe related to her claim under the provisions of section 71 of the Statute of Limitations Act 1957 relating to fraud. The High Court directed that a hearing take place as to whether she may be entitled to rely on those provisions on the basis that the actions of the defendant were fraudulent. In an action such as that the period she would have to take a claim would not begin to run until she discovered or could reasonably have discovered the fraud.

 

As can be seen from the above case it is extremely important for a beneficiary considering an action against an estate  to keep these timelines to the forefront of their minds to ensure they are not statute barred.

 

If you have any queries or need advice in this area please contact us on 01-2960666 or info@dillon.ie.

Pandemic Insurance – Will it pay out

 

Pandemic Insurance – Will it pay out

 

Many eyebrows were raised last year when FBD Insurance refused to pay out in relation to business interruption losses on the basis that they argued that the cover provided by their insurance policy did not extend to losses which had been incurred by the policy holders due to a pandemic such as Covd 19. In October of last year Mr. Justice McDonald heard claims brought by the owners of four licenced premises that the refusal by FBD was the breach of their insurance contract. A decision has not yet been released by the Court but a similar case came before the English High Court in Financial Conduct Authority -v- Arch Insurance. This case was relied upon by the parties in the FBD hearing.

 

In the Arch case the Court stated that it had to “ascertain what a reasonable person i.e. a person who has all the background knowledge which would reasonably been available to parties in the situation in which they were at the time of the Contract, would have understood the contracting parties to have made by the language used”. In the particular case and based on the particular facts the High Court found that each policy had to be strictly construed according to the wording of the policy. It found that while most of the policies did provide some form of cover, the cover did necessarily extend to the entire period affecting trade nor for all of the losses which arose as a result of Covd 19.

 

There was a further case of TKC London Limited -v- Allianz PLC in which the English High Court ruled in favour of the insurance company even though that the policy was held out as covering “all risks”.

 

It will be very interesting to see what the outcome of the High Court case is but it is certainly important for owners of businesses who take out business interruption cover that they should not assume that the policy will pay out.

 

For any advice in relation to any Company Law matter please don’t hesitate to contact Brendan Dillon or Conor White on 01-2960666

Family Law Disputes involving the UK post Brexit  

 

Family Law Disputes involving the UK post Brexit

 

Since the 1st of January 2021 and the ending of the transitional period the landscape involving family law disputes where an EU national is married or in a partnership/relationship with a UK national or where either of the parties is living in the UK has changed considerably.

 

In this article we look at a number of the consequences which have flowed in a post Brexit world.

 

Issuing Proceedings

 

In circumstances where say one of the parties to the marriage is from Ireland and the other from the UK or indeed where one is currently living in Ireland and the other lives in the UK the “lis pendens” rule applied pre the 31st of December 2020. This meant that whichever party issued proceedings first, the jurisdiction in which those Proceedings were issued had seisin (this means control) of the Proceedings. This is the rule in Brussels II(a)which applies to all EU member states.

 

Because the UK is no longer a member of the EU, Brussels II(a) no longer applies in these circumstances and a rule known as the “forum conveniens” rule would apply where even though Proceedings may be issued first in one jurisdiction the Court in that jurisdiction may decline to deal with the matter if it concludes that it is more convenient for Proceedings to be dealt with in another jurisdiction because of the availability of witnesses etc. This is undoubtedly going to lead to lengthy and more costly disputes in relation to the issue of jurisdiction because of a significantly greater level of uncertainty as to whether a Court in a particular jurisdiction will agree to deal with proceedings even though commenced first in that country.

 

This uncertainty may be alleviated if the UK  is admitted as a signatory to the Lugano Convention in which circumstances the “lis pendens” rule will again apply.

 

Enforcement of Maintenance Orders

 

Under Brussels II(a) which applies to all EU countries, there is automatic reciprocal recognition of Maintenance Orders. With the Brussels II(a) no longer applying to the UK reliance will now be placed on the 2007 Hague Convention which is similar to the EU maintenance Regulations under Brussels II(a) but not on all fours and again certain uncertainties may apply. Time will tell as to how Maintenance Orders obtained for instance in Ireland can be enforced in the UK and vice versa.

 

Child Abduction and Parental Responsibility Matters

 

These matters have traditionally been dealt with under Brussels II(a) which is a relatively straight forward process. Up to the 31st of December 2020 if a child whose habitual residence was in Ireland was removed by a parent to the UK without the others parent’s permission an application would be made in the UK for the immediate return of the child to Ireland where all issues relating to the child’s welfare would be decided.

 

The regulations relating to the departure of the UK from the EU now mean that any such applications must be dealt with under the Hague Convention which provides similar but not identical protection.

 

In the area of parental responsibility, the entitlement to automatic recognition of Orders in one jurisdiction may not apply and it may be necessary when an Order is obtained in Ireland for mirror Orders in relation to parental responsibility to be obtained in the UK.

 

This will undoubtedly lead to time delays, greater uncertainty and significantly greater costs being imposed on families who find themselves in this situation.

 

As time evolves and the legal position in relation to these important but complicated areas will become more clear cut.

 

In the meantime, if you have any queries in relation to any of the matters dealt with in this article or any other Family Law Matter please do not hesitate to contact Brendan Dillon or Lorna McArdle on 01-2960666

Irish Business and Brexit

 

Irish Business and Brexit

Now that Brexit is finally taking effect, we are seeing many Irish businesses struggle to navigate the new issues presented when trying to deal with UK-based elements of their business. Below are just some of the areas which Irish business need to keep in mind when planning for the future.

  1. Time and Money

In the past week there have been reports of delays and additional costs for Irish supply chains which rely on moving goods through the UK, with traffic between Ireland and the UK being substantially reduced as a result.

One of the changes brought about by Brexit is the introduction of extra charges on imports. For example, customers can now expect to pay Customs Duty when buying goods from the UK which have an intrinsic value greater than €150.

  1. Data Protection

As any Data Protection Officer will be aware, personal data may only be transferred to a Non-EU / third country where that country has adequate data protection laws. To avoid damaging present arrangements, the UK and EU agreed a temporary extension of between 4 and 6 months to allow the EU to reach an adequacy finding on the UK’s data protection regime.

Businesses need to keep an eye on this process because if it should become likely that the UK will not reach the standards set by the EU then businesses will need to ensure they have permission to send personal data to UK processors or risk substantial repercussions.

  1. Other Legal Issues

While legal systems across the EU vary greatly, one benefit to EU membership was that laws such as the Brussels I Recast Regulation, established effective mutual recognition and enforcement of judgments between EU member states.

In the aftermath of the UK’s exit, other mechanisms will have to be used, giving rise to some administrative delays as the courts familiarise themselves with the new protocol.  Furthermore, in order to enforce a UK judgement in Ireland we will now need to issue fresh proceedings.

As above the effect of this change will not likely show for some months as the Recast Regulation shall apply to the recognition and enforcement of judgments where proceedings issued before the end of the transition period.

In summary, Brexit is only starting to show its impacts on Irish businesses. In the coming months and, in particular once the Covid-19 restrictions begin to be reduced we will see a divergence between UK and European laws. As the only member of LawNet in the Republic of Ireland (and consequently the EU) Dillon Solicitors has a connection with over 60 UK-based firms who cater to a similar client base of small to medium sized businesses.

If you have any queries or require any advice on any of the matters referred to in this article do not hesitate to contact Brendan Dillon or Conor White on 01 2960666.