Filing of Annual Returns During Covid-19 Restrictions

 

Filing of Annual Returns During Covid-19 Restrictions

 

As of 7th April 2020, the Registrar of Companies will treat annual returns (where the filing deadline falls between Wednesday 18 March 2020 and Tuesday 30 June 2020 inclusive) as received on time once all elements are submitted by midnight on Tuesday 30 June 2020.

 

The Companies Registration Office is accepting post but hand delivery of documents is currently not available. On-line facilities remain operational.

 

If you have any queries on commercial / company law, please do not hesitate to contact us on info@dillon.ie or by telephone on 01 2960666.

 

Financial Serviced and Pensions Ombudsman Overview of Complaints 2019

 

 

Financial Services and Pensions Ombudsman Overview of Complaints 2019

 

The Financial Services and Pensions Ombudsman (FSPO), Ger Deering, has published an overview of the complaints received last year.

 

Powers of the Financial Services and Pensions Ombudsman

 

The Ombudsman’s office was established by the Financial Services and Pensions Ombudsman Act 2017 and opened for business on the 1st of January 2018. Its services are available to consumers, as well as businesses and other entities with a turnover not exceeding €3 million.

 

The Ombudsman can direct a financial-services provider to pay compensation of up to €500,000 to a complainant and/or to rectify the conduct that is the subject of the complaint. There is no limit on the value of the rectification that can be directed.

 

Decisions issued by the FSPO are legally binding on both parties and can only be appealed to the High Court.

 

The FSPO tries first to deal with complaints informally by hearing both parties and engaging with them to try to reach a resolution that both parties can accept. Where complaints cannot be resolved informally, they are referred for formal investigation.

 

Overview of Complaints 2019

 

The overview published on the 31st of March 2020 reported that a total of 5,275 complaints were received and 4,969 of these complaints were deemed to be eligible by the FSPO.

 

A total of 1,399 of complainants received compensation and/or redress through the services of the FSPO last year. Out of these 1,399, a total of 983 went through mediation, 215 were formally investigated and 201 legally binding decisions were issued by the FSPO.

 

The overview provides an analysis of the sectors giving rise to complaints in 2019:

  • 2,862 (58%) of complaints related to banking products,
  • Mortgage complaints accounted for 30% of these complaints,
  • 1,660 (33%) of complaints received related to insurance products,
  • 233 (5%) of complaints related to investment products,
  • 214 (4%) complaints related to pension schemes.

The top five conducts most complained about include, maladministration, customer services, rejection of a claim, arrears handling and disputed transactions.

The overview contains anonymised case studies of settlements reached my the FSPO where a legally binding decision was not required including the following:

Case Study 1:

The payment of €28,000 in interest rate adjustment and €18,000 in compensation to a complainant whose mortgage was incorrectly classified as an investment property and who was not afforded the protections of the Mortgage Arrears Resolution Process (MARP). 

Case Study 2:

A settlement of €36,000 to a couple who had four mortgages with their bank. One of their mortgages was impacted by the tracker mortgage examination directed by the Central Bank and there was a disagreement between the parties as to whether a tracker rate should have applied to their second mortgage. There was also disagreement as to what rate applied to their third mortgage, and issues concerning conduct around their fourth mortgage. 

Case Study 3:

The payment of €20,000 to a couple whose holiday home received €57,000 worth of damage due to a burst water pipe. €14,500 of the claim had already been paid prior to mediation. 

Case Study 4:

The payment of €3,000 to a complainant following damage caused to his car by rats.

As well as the overview, the FSPO published two digests earlier this year, one on the legally binding decisions it had issued in 2019 and the other on their decisions around tracker mortgage related complaints.

Making a Complaint

The FSPO said his office has implemented a business continuity plan due to the restrictions put in place as a result of the Covid-19 pandemic and confirmed that the FSPO will deal with any complaints arising from the current situation in the normal way.

It is important to note that complainants must make a formal complaint to their financial service provider and give that provider the opportunity to resolve the complaint, before making a complaint to the FSPO.

If you have any queries in relation to this article or for any further information please do not hesitate to contact Brendan Dillon on 01 2960666 or info@dillon.ie

 

 

Dillon Solicitors are working remotely

 

Working Remotely 

 

All of our staff are currently operating on remote access but thankfully as everybody is set up to work remotely and we are a paperless office all of our correspondence and documents are scanned into our system and as such there is minimal disruption for the efficient operation of our services.

 

You can contact us by ringing our normal office line 01-2960666 and our Client Service Executive Michaela Byrne will handle all calls as our office number is diverted to her and she will pass on the message to the appropriate Solicitor.

 

If you wish to contact any of our Solicitors directly you can email them at:-

 

brendandillon@dillon.ie

paulinehorkan@dillon.ie

lornamcardle@dillon.ie

niallmaccarthy@dillon.ie

 

Wills

We have received a large number of queries in relation to clients wishing to update / make their wills and this is a service which we continue to be able to offer for clients.

Accordingly, if you have any queries in this regard please do not hesitate to contact us.   The Law Society have issued a recommendation in relation to how wills can be witnessed while observing the appropriate social distancing recommendations.  We attach a link to a piece on RTÉ yesterday including an interview with the Law Society President Michelle O’Boyle explaining the social distancing rules in relation to the making of wills.

We have also received queries from clients in relation to the making of Enduring Powers of Attorney and again these are matters which we can deal with and organise the witnessing of.  Please let us know if this is an issue for you.

 

Online Conveyancing

Most of the conveyancing work which we are doing is being done on an online basis.   We are fully equipped to manage conveyancing work and it is possible for property / title searches to be carried out for the purpose of completion in most of the registry offices.  Again if you have any queries in this regard please do not hesitate to contact us.

 

Mediation

In relation to family law matters, there have been certain issues with regard to access arrangements but our experience is that most couples are adhering to the recommendations i.e. access should operate as normal where at all possible and where not possible that other forms of access in the form of social media calls i.e. facetime, Whats app video or Zoom be used to ensure that the children maintain a reasonable and appropriate level of contact with the non custodial parent.

In circumstances where unresolvable issues have arisen we are conducting and facilitating remote mediation discussions on Zoom and if this is something that may be of interest please contact us further.

 

Other areas where we are continuing to offer advices are in the relation to business agreements / Partnership Agreements / employment difficulties and we are available to deal with any of these queries should the need arise.

 

In the meantime we hope that you are continuing to stay well and safe and hopefully together we will get through this very difficult period in all our lives with our families safe, secure and free of illness.

 

Once again, if you have any queries in relation to any legal matter please do not hesitate to contact us on 01-2960666 or info@dillon.ie.

 

Brendan Dillon

Managing Partner

 

Government’s Covid-19 response – the latest update

Government’s Covid-19 response – the latest update

 

The following is a summary of the most recent announcement made by the Government in response to the Covid-19 pandemic:-

 

The pandemic unemployment payment for employees who have been laid off due to the impact of Covid-19 has been increased to €350 per week from the 24th of March. This is a flat rate irrespective of the earnings of the employee. This payment will continue as long as the emergency remains in place.

The Government has introduced a new national Covid-19 income support scheme which can be summarised as follows:

  • The Government will reimburse an employer up to 70% of an affected employee’s take home income up to a maximum weekly tax repayment of €410 (this equates to 70% of an employee on a salary of €38,000 per annum). The subsidy for employees on salary of greater that 38k is €350.00 and there is no subsidy for employees earning in excess of €76,000.00
  • As a condition of this subsidy the employer is expected to make best efforts to maintain as close as possible to 100% of the employee’s normal income.
  • The employer must self-declare to the Revenue that they have experienced significant negative economic disruption with a minimum of 25% decline in turnover and an inability to pay normal wages or their outgoings. The payment will only apply to employees who have been on the payroll in February 2020.
  • Employers should be aware that pre Covid if they decided to lay-off their employees or put them on short-time for four or more consecutive weeks or six or more weeks within a thirteen week period an employee could seek to be made redundant. This entitlement on the part of the employee has been suspended during the Covid crisis,
  • In the event, that an employer is obliged to make an employee redundant, employees who have two years or more continuous service will be entitled to a statutory redundancy payment calculated at two weeks’ pay (capped at €600 per week) per year of service plus a bonus week.

The employer must be able to satisfy the test that the redundancy is genuine and that it is the role that has been made redundant and that there has been a fair process before the employee in question was selected.

For further information on this or any employment matters please contact Brendan Dillon or Niall MacCarthy on 01 2960666

President of the District Court: Parents may vary family court orders

President of the District Court: Parents may vary family court orders during Covid-19 crisis where both parents agree

 

The President of the District Court, Judge Colin Daly recently stated that the Covid-19 restrictions may mean that the detail of every access order may not be fully implementable, but parents should make every effort to allow their children to continue access in a safe, alternative way.

 

Judge Daly said parents are free to temporarily vary family court orders during the Covid-19 crisis as long as both parents are in agreement. He advised that parents should make note of such agreements by way of email or text message.

 

The Judge advised that when a child does not get their scheduled time with a parent due to the current crisis, there should still be regular contact between the parent and child.

 

He recommended that video technology such as FaceTime, Skype, Zoom or WhatsApp should be used to facilitate access where possible and where not possible, a telephone conversation should be arranged.

 

The Judge has urged parents to communicate with one another during this time and stated that the best outcome for children is for parents to contact each other to set out their concerns and suggest ideas for practical solutions that can be put in place.

 

Judge Daly warned that applications for breach of access orders will not be treated as urgent during the Covid-19 crisis unless a good case can be made by one of the parties that they must be heard immediately.

 

If you have any queries in relation to this or any family law issue please contact Brendan Dillon on 01 2960666 or info@dillon.ie

 

Employers info: Lay-Off and Short-Time due to Covid-19 Pandemic

 

Information for Employers: Lay-Off and Short-Time due to Covid-19 Pandemic

 

Under the Redundancy Payments Act 1967-2014, lay-off occurs where an employer is temporarily unable to provide an employee with the work for which they were employed. A short-time situation occurs where an employee’s hours of work or pay are reduced to less than 50% of their normal weekly pay or hours. Where a lay-off/short-time situation arises, an employer must reasonably believe that the situation will not be permanent and must give employees notice to this effect.

 

In each situation, an employer should notify their employee in writing before the cessation of/reduction of work. This is generally done by way of the statutory Form RP9. It is important to note that where an employer fails to give notice of lay-off or short-time working, they leave themselves open to claims for statutory redundancy payment.

 

While the legislation does not provide a minimum period of notice, an employer must provide notice which is reasonable in the circumstances. It is likely that exceptional circumstances, such as the Covid-19 pandemic, would permit a short notice period but this has yet to be determined in practice.

 

At Common Law, an employer must have a contractual right or an implied right through custom and practice to lay-off employees without pay. However, in exceptional circumstances an employer is generally not required to pay employees that have been laid-off. The Covid-19 pandemic is likely to constitute such exceptional circumstances.

 

The law on employees claiming redundancy from their employer if they have been laid off/ put on short-time work has changed during the Covid-19 emergency period. Normally, where a lay-off or short-time working situation continues for 4 plus consecutive weeks or for a broken series of 6 weeks where all 6 weeks fall within a 13-week period, an employee can trigger their entitlement to statutory redundancy payment.

 

However, under the Emergency Measures in Public Interest (Covid-19) Bill, an employee will not be able to claim redundancy during the emergency period if they were laid off or put on short-time work as a result of the Covid-19 pandemic. The emergency period set out in the legislation is from the 13th of March 2020 to the 31st of May 2020, but this period may be extended.

 

Employers should review their contracts of employment in order to clarify whether it is clear that any lay-off period will be unpaid. If it is the case that it is not stipulated in their contract of employment, employers may seek to rely on the unprecedented nature of the Covid-19 pandemic to justify such action as exceptional circumstances.  However, such justification has yet to be tested in practice.

 

It is extremely important that any staff members that are laid-off or on short-time are regularly updated by their employer of the evolving situation during their lay-off period.

 

Care should also be taken by employers when selecting employees for lay off and short-time to ensure that objective criteria is applied and employers must be mindful of not discriminating, directly or indirectly, against employees on any of the nine grounds prohibited by the Employment Equality Acts 1998-2015.

 

If you have any queries in relation to this or any other employment issue please contact Niall MacCarthy or Brendan Dillon on 01 2960666 or info@dillon.ie

 

Registration of an Enduring Power of Attorney

 

Registration of an Enduring Power of Attorney

 

The responsibility for bringing an Enduring Power of Attorney (“EPA”) under the Enduring Power of Attorney Act 1996 into effect lies with the Attorney who should do so when he believes that the Donor who appointed him as Attorney is losing or has lost capacity in making decisions about his care or finances.

 

It is usually advisable that the Attorney would need to advise the Solicitor who acted for the Donor when the EPA was created that he believes that it now needs to be registered.

 

The Attorney does not have to use the Donor’s Solicitor but whatever Solicitor is appointed must first obtain a Certificate from a Doctor caring for the Donor confirming that the Donor is or is becoming incapable of looking after his own affairs. The Certificate must also give medical reasons for this loss of capacity.

 

There is then a procedure which must be followed. The first step is that a document signed by the Attorney has to be served by the Solicitor on the Notice Parties. The Notice parties are the two parties that would have been notified of the making of the Enduring Power of Attorney when the Donor made it. Other parties that must be served are the Donor himself and the Wards of Court office notifying them of the Attorney’s intention to register the Donor’s EPA.

 

A five week period has to be provided for any objections by any of the relevant parties and some further documents are then signed by the Attorney and served on the same parties before registration is effected by lodging all of the documentation with the Wards of Court Office.

 

Once the Power of Attorney is registered it cannot be revoked by the Donor. Once the Wards of Court Office have completed the registration process they will issue a Certificate of Registration which bears the Wards of Court stamp.

 

If the Power of Attorney has been registered it is still important for the Attorney to retain a copy of the Enduring Power of Attorney as this will be proof of the nature of the personal and/or financial decisions that the Attorney has power to make.

 

If you have any queries regarding the foregoing or require any information relating to the making of an Enduring Power of Attorney or indeed a Will please do not hesitate to contact any of the Solicitors on 01-2960666 or info@dillon.ie

Test for capacity on making an Enduring Power of Attorney

 

Test for capacity on making an Enduring Power of Attorney

One of the most important duties for a Solicitor is to explain fully the effect of creating and Enduring Power of Attorney to our clients and to ensure that our clients understand what the effect of making an Enduring Power of Attorney. It is not sufficient for a Solicitor simply for the client to respond yes to our explanation. It is important that we carry out a test to ascertain whether or not the client understands the provision of the Enduring Power of Attorney. For instance it is usually important to ask the client to repeat back their understanding of what the Enduring Power of Attorney means.

One of the most important cases on establishing the test for capacity is an English case of in RE (Enduring Powers of Attorney) in REF, 1988 CH 310 which dealt with the test from capacity to sign a general Power of Attorney (which was to continue despite the Donor losing capacity) This case laid down the test of capacity as follows:

Having stated that the test for capacity to create an EPA was that the Donor understood the effect and nature of the document, the Judge Hoffman J set out four items of categories which any person creating an EPA should understand;

1. Firstly, that the Attorney will be able to assume complete authority over the donor’s affairs assuming that is the intention created by the document.
2. Secondly, again if the document provides as such, that the Attorney will be able to do anything with the Donor’s property which the Donor could have done.
3. That the authority will continue if the Donor should be or should become mentally incapable and fourthly that he or she should be or should become mentally incapable, that the powers shall become irrevocable without confirmation by the Court of protection.

There are some slight differences between an English Power of Attorney and an Irish Enduring Power of Attorney e.g. the fourth test would, in Irish terms, be that the Donor understands that of the Powers registered it will be irrevocable without confirmation by the Wards of Court Office in Ireland.

There is a school of thought that in order to have the capacity to sign an Enduring Power of Attorney it does not have to be the case that the Donor himself/herself has the capacity to do all the things that the Attorney will have the ability to do under the Power. The only capacity the Donor needs is the capacity to create the Enduing Power of Attorney itself in accordance with fourfold test above.

If you have any queries with regard any aspect of making an Enduring Power of Attorney or indeed registering an Enduring Power of Attorney please do not hesitate to contact one of the Solicitors in the office on 01-2960666.

Important case-was the employee a creditor of the company?

IMPORTANT CASE WHICH ESTABLISHES WHETHER AN EMPLOYEE WAS A CREDITOR OF A COMPANY

 

In a recent decision made by the Court of Appeal a Winding up Order previously made by the High Court was annulled.

 

In the High Court Ms. Justice Pilkington concluded that an employee who claimed that he was owed back pay from a Company of which he was a Director namely PPF Capital Source Limited (PPF) was not entitled to be considered a creditor.  She grounded her decision on the fact that his contract of employment was dated the 5th June 2013 whereas the Company was not incorporated until 14 days later namely the 19th June 2013.  She held that as the contract predated the date of incorporation of the Company she was not satisfied that the Applicant properly advanced the position that he was a creditor.

 

However the Court of Appeal disagreed and referred to section 45 of the Companies Act 2014 which provides that a contract purporting to be entered into by a Company prior to its formation may be ratified by the Company.  He said that this ratification does not have to be express resolution by the Company but a Company may ratify a contract by treating it as binding after incorporation.  He noted that the Applicant stated that he was paid salary for a time and thereafter ceased to receive it.  Accordingly these factors, combined with a pre-incorporation contract, was sufficient to establish Mr. Stamp as a creditor of the Company for the purposes of Section 669 of the 2014 Companies Act.  Section 669 provides that following a winding up Order a liquidator or creditor or contributory of the Company may seek an Order annulling the winding up on proof to the satisfaction of the Court that the Order for winding up ought to be annulled.

 

The application by the Applicant was not opposed by the Petitioner for the Winding Up namely Global Management Solutions Limited nor the liquidator.

 

This is an important case in establishing the circumstances in which a Company may, without express resolution, ratify a contract that may have been entered into prior to the Company being incorporated.  It also sets out the circumstances in which a Winding Up Order may be annulled.

 

For further information on any employment or commercial matter please do not hesitate to contact Brendan Dillon, Niall MacCarthy or Lorna McArdle on 01 2960666

 

Protecting Personal Data When Working Remotely

 

Protecting Personal Data When Working Remotely

Measures to control and prevent the spread of COVID-19 will involve more people working remotely than usual. Below are some tips to keep personal data safe when working away from the office.

Devices

  • Take extra care that devices, such as USBs, phones, laptops, or tablets, are not lost or misplaced,
  • Make sure that any device has the necessary updates, such as operating system updates (like iOS or android) and software/antivirus updates.
  • Ensure your computer, laptop, or device, is used in a safe location, for example where you can keep sight of it and minimise who else can view the screen, particularly if working with sensitive personal data.
  • Lock your device if you do have to leave it unattended for any reason.
  • Make sure your devices are turned off, locked, or stored carefully when not in use.
  • Use effective access controls (such as multi-factor authentication and strong passwords) and, where available, encryption to restrict access to the device, and to reduce the risk if a device is stolen or misplaced.
  • When a device is lost or stolen, you should take steps immediately to ensure a remote memory wipe, where possible.

Emails

  • Follow any applicable policies in your organisation around the use of email.
  • Use work email accounts rather than personal ones for work-related emails involving personal data. If you have to use personal email make sure contents and attachments are encrypted and avoid using personal or confidential data in subject lines.
  • Before sending an email, ensure you’re sending it to the correct recipient, particularly for emails involving large amounts of personal data or sensitive personal data.

Cloud and Network Access

  • Where possible only use your organisation’s trusted networks or cloud services, and complying with any organisational rules and procedures about cloud or network access, login and, data sharing.
  • If you are working without cloud or network access, ensure any locally stored data is adequately backed up in a secure manner.

Paper Records

  • It’s important to remember that data protection applies to not only electronically stored or processed data, but also personal data in manual form (such as paper records) where it is, or is intended to be, part of filing system.
  • Where you are working remotely with paper records, take steps to ensure the security and confidentiality of these records, such as by keeping them locked in a filing cabinet or drawer when not in use, disposing of them securely (e.g. shredding) when no longer needed, and making sure they are not left somewhere where they could be misplaced or stolen.
  • If you’re dealing with records that contain special categories of personal data (e.g. health data) you should take extra care to ensure their security and confidentiality, and only remove such records from a secure location where it is strictly necessary carry out your work.
  • Where possible, you should keep a written record of which records and files have been taken home, in order to maintain good data access and governance practices.