Covid 19 and Employers Obligations

 

Covid 19 and Employers Obligations

Employers have a statutory obligation under the Safety, Health and Welfare at Work Act 2005 to ensure that employees are provided with a safe working environment. We will consider below how employers can fulfil this obligation.

 

Be Fully Informed

Employers should ensure they follow all advice and guidelines being given by the Government, HSE Health Protection Surveillance Centre (HPSC), World Health Organization (WHO) and any other official sources.

 

Working Remotely

Where possible employers should request that all employees work from home and should have the necessary tools in place to enable employees to do so. In these circumstances, once all of their duties are being fulfilled, they should continue to receive their full salary.

Where an employee cannot work from home and the employer has placed a restriction on people attending the work place, then that employee must remain at home without carrying out any of their duties. In these circumstances, the employee should continue to receive their full salary.

Employers must ensure that all restrictions are reasonable and proportionate.

Employers must maintain engagement and communication to reduce the risk of any claims for alleged discrimination or breach of contract.

On the 12th March, the Data Protection Commission issued guidelines on Protecting Personal Data When Working Remotely.

 

Risk Assessment in the work place

Where it is intended that employees will continue to work in the work place, a risk assessment must be carried out to ensure the safety of all staff and clients. This will involve taking reasonable measures such as; ensuring the recommended social distancing measures are in place, ensuring that there are sufficient hand sanitizing areas, placing handwashing guidelines in communal areas/toilet and food preparation areas, ensuring that there is a Covid 19 Policy in place and that all employees have been furnished with a copy and understand same.

Employers should also ensure that emergency contact details for all employees are up
to date.

The Health and Safety Authority website ‘hsa.ie’ has some useful information.

 

Travel

All non-essential travel by employees should be restricted.

In circumstances where employees have travelled to affected areas, they should be requested not attend the work place for 14 days.

Employers should follow the up-to-date travel information from the Department of Foreign Affairs.

 

Medical Testing

Employers can require employees to be medically assessed so long as the employee’s employment contract or the company illness policy provides for same.

If however, there is not a provision for same in the contract or illness policy, given the high risk nature if Covid 19, compelling an employee to be medically assessed would most likely be considered reasonable.

 

Sick Leave/Absence from work

Where an employee is unable to work having contracted Covid 19, the company illness policy should be implemented.

Where an employee is in Quarantine but not sick, working from home should be implemented and as aforementioned, in these circumstances once all of their duties are being fulfilled, they should continue to receive their full salary.

Where an employee is absent from work, due to a family member contracting the virus, the company force majeure leave policy should be implemented.

Employers can also facilitate requests from employees to take annual leave in order to discharge family obligations they have as a result of the current school closures. Other options that can be explored are facilitating parental leave or other unpaid leave or employees commencing maternity leave early.

 

GDPR/Privacy

Where additional information is requested from employees regarding their health or travel there must be a valid lawful basis for doing so under both Articles 6 and 9 of the GDPR. Any information that is collected must also be necessary and proportionate for the purpose of ensuring the safety and health of employees

As Covid 19 has been classed as a notifiable disease by the Minister for Health, it is reasonable for an employer to disclose to other staff members when an employee has contracted Covid 19. Where an employee has confirmed they have the virus, their identity must not be shared with other employees. It may be necessary to ask other employees in contact with this person to work from home, this may be communicated as a general direction without including any identifying details.

 

Covid 19 Policy

Employers should ensure that they have a written Covid 19 Policy in place and that all employees have been furnished with a copy and understand same. This Policy should be updated as matters progress.

The Policy should detail among other things; how the business will operate, guidelines for employees if they contract the virus or have been in contact with somebody who has the virus eg. how to notify the employer, not attending the work place etc., disclosure of illness to other employees, update of other policies such as  of illness policy.

 

“Lay Off” & “Short Time”

In certain circumstances, if employees are laid off or put on short-time, they may be entitled to a payment under the Redundancy Payments Acts 1967-2014. This payment is separate to any State benefit that such employees may be entitled to.

In order to qualify for redundancy payments, the lay-off or short-time must come within the specific definitions contained in the Redundancy Payments Acts 1967-2014. For the purposes of the Acts, lay-off occurs where an employer is temporarily unable to provide an employee with the work for which they were employed. Short-time occurs where an employee’s hours of work or pay are reduced to less than 50% of normal weekly working hours or normal weekly pay.

The employer must reasonably believe that the situation will not be permanent and must give employees notice to this effect.

An employer cannot unilaterally place an employee on unpaid lay-off or short-time working with reduced pay unless there is an express contractual right to do so. Alternatively, the employer might have an implied right to do so, for example, pursuant to an established custom and practice of laying employees off without pay in circumstances of economic downturn.

 

Review Business Continuity Plan

Review business continuity plan in light of the Covid 19 virus. Business, Enterprise and Innovation has published a Business Continuity Planning checklist.

The Irish Government’s emergency coronavirus bill

 

The Irish Government’s emergency coronavirus bill

The Government has published a Bill “to make exceptional provision, in the public interest and having regard to the manifest and grave risk to human life and public health posed by the spread of Covid-19”.

The Health (Preservation and Protection and other Emergency Measures in the Public Interest) Bill 2020 will amend the Social Welfare Consolidation Act 2005 and Health Act 1947.

The Bill will go before the Dáil today Thursday the 19th of March, with a reduced number of TDs attending to comply with social distancing guidelines. The Bill will then go to the Seanad on Friday.

Covid-19 was included as a Scheduled Disease in Regulation 6 of, and the Schedule to, the Infectious Diseases Regulations 1981 (S.I. No. 390 of 1981) by Ministerial Order (S.I. No. 53 of 2020).

The legislation provides for enhanced income supports for people diagnosed with, or required to self-isolate due to, Covid-19, as announced by the Government on 9 March. It also provides for changes to waive the waiting period requirement for payment of Jobseekers Benefit and Jobseekers Allowance in these circumstances.

The Bill also provides for certain ministerial powers, should they be required in extreme situations, in relation to the regulation or prohibition of gatherings or events and travel where there would be an immediate, exceptional and manifest risk to human life and public health from the spread of Covid-19. Such powers include a ministerial order requiring people to stay in their homes in certain circumstances.

In addition, section 38A of the new Bill provides for further powers, in relation to Covid-19, where a medical officer believes that a person is a source of infection and that the detention or isolation of a person is necessary to prevent the spread of Covid-19.

In its press release, the Government said that these are provisions “which the Government hopes it won’t have to use, given the powers already in place under the Health Act 1947, but legislation is being introduced to give Government powers in exceptional circumstances in the unlikely event that the need arises”. It reiterated that “all measures in the Bill relate only to the exceptional circumstances facing the country due to Covid-19”.

Social welfare

The Bill amends section 40 of the Social Welfare Consolidation Act 2005 (on entitlement to disability benefit) to include persons who are incapable of work, or who are deemed to be incapable of work, by virtue of being certified in the prescribed manner by a registered medical practitioner as being a person who is diagnosed with Covid-19, or who is a probable source of infection of Covid-19, “having been notified, in the prescribed manner, by a medical officer of health or such other person as may be prescribed, that he or she is a probable source of infection of Covid-19, being deemed, in accordance with regulations under section 40A, to be a probable source of infection of Covid-19, or being a person in respect of whom an order under section 38A(1) of the Health Act 1947 is in [force] [operation]”.

It will empower the Minister for Social and Family Affairs to, following consultation with the Minister for Health, and with the consent of the Minister for Public Expenditure and Reform, make regulations for the purposes of giving full effect to the relevant provisions, including such matters as the procedure by which, and manner in which, a person is certified to be a relevant person; the procedure by which, and manner in which, a person is deemed to be a probable source of infection of Covid-19; and additional conditions for entitlement to illness benefit in relation to a relevant person.

Health

The Bill will amend section 31 of the Health Act 1947 to empower the Minister “having regard to the immediate, exceptional and manifest risk posed to human life and public health by the spread of Covid-19” to make regulations for the purpose of preventing, limiting, minimising or slowing the spread of Covid-19 (including the spread outside the State) or where otherwise necessary, to deal with public health risks arising from the spread of Covid-19.

Under section 31B (1) of the new Bill, the Minister for Health may by order declare an area or region in the State to be an “affected area” where there is “known or thought to be sustained human transmission of Covid-19 or from which there is a high risk of importation of infection or contamination with Covid-19 by travel from that area”.

The Minister must consult with the Chief Medical Officer of the Department of Health and “such Minister of the Government as the Minister considers appropriate having regard to the functions of that other Minister of the Government” before making such an order.

Such regulations may include restrictions to be imposed upon travel to or from the State; restrictions to be imposed upon travel to, from or within geographical locations to which an affected areas order applies.

The Minister for Health may impose restrictions to be imposed upon persons or classes of person’s resident in, working in or visiting affected areas, including requiring persons to remain in their homes, or to remain in such other places as may be specified by the Minister.

Events in affected areas (or other areas where there is a risk of infection, subject to certain considerations) may be prohibited where the event could reasonably be considered to pose a risk of infection with Covid-19 to persons attending the event by virtue of the nature, format, location or environment of the event concerned or the arrangements for, or the activities involved in, or the numbers likely to be attending.

The Bill specified that “event” means a gathering of persons, whether the gathering “is for cultural, entertainment, recreational, sporting, commercial, work, social, community, educational, [religious] or other reasons, and includes but is not limited to a gathering which is required to be subject to a consent, licence or other form of permission granted in relation to it such Minister of the Government or public body pursuant to any enactment or rule of law which provides for the regulation of proper planning and sustainable development, traffic management, sale of alcohol, safety and health at work or otherwise”.

Owners or occupiers “of any other place or class of place” may be required to enact safeguards as laid down by regulations, including the temporary closure of such place or class of place, in order to prevent, minimise limit or slow the risk of persons attending them of being infected with Covid-19.

The Bill empowers the Minister to specify the safeguards required to be put in place by managers of schools, including language schools, crèches or other childcare facilities, universities or other educational facilities (including the temporary closure of such facilities).

The Bill states that the Minister when making such regulations must have regard, among other things, to the fact that a “national emergency has arisen of such character that there is an immediate and manifest risk to human life and public health as a consequence of which it is expedient in the public interest that extraordinary measures should be taken to safeguard human life and public health”. He must have regard to the  resources of the health services “including numbers of health care workers available at a given time, the capacity of those workers to undertake measures, the necessity to take such measures to test persons for Covid-19 and to provide care and treatment to persons infected with Covid-19 as are appropriate to protect health care workers from infection from Covid-19, and the capacity of hospitals or other institutions to accommodate and facilitate the provisions of treatment to infected persons”.

 

COVID-19

Corona Virus

 

As you are all aware we are all embroiled in the challenges of dealing with Covid-19.

As things stand, we remain open for business and will do so until such time as it is not feasible or safe to do so.

Some of our staff are working remotely and the numbers working remotely may increase over the next week or so.

If it is a case that any of the solicitors with whom you normally deal are working remotely we will contact you further and let you know and you will be able to contact the solicitor in question by email / mobile phone.

We are minimising all client meetings to keep these at a minimum and where possible we will be conducting meetings by telephone.

We will keep the position monitored and under observation and will update you as soon as there are any further developments.

Our priority is to protect the health and wellbeing of our staff / their families and of course our clients while at the same time continuing to maintain a normal service to our clients.

Thank you for your consideration and understanding.

Brendan Dillon

Managing Partner

 

Commercial Tenancies

 

 

Commercial Tenancies

 

  • The Landlord and Tenant Amendment Act 1980 (as amended) regulates the landlord and tenant relationship which confers certain “reliefs” on a tenant. These protect the tenant by giving them some form of relief where their business has been located in a certain area and they may be required to move.

 

  • In order to come under the Act the premises must be a “tenement” as defined in Section 5 of the Act which essentially means that it must be covered by buildings or part covered by buildings and any other area not covered should be subsidiary and ancillary to the buildings.

 

There are three types of equity:

Business equity

In certain circumstances a tenant may be entitled to a new long lease at the end of their existing five year continuous occupation.  Where an entitlement to business equity arises the tenant is entitled to a new 20 year tenancy or a lesser period if the tenant wishes.

 

Long possession equity

Long possession equity is where a tenant has been in possession of a property (including predecessors in title) for a period of twenty years or more.  A tenant who successfully claims relief for long possession equity is entitled to a new 35 year lease for a lesser period if the tenant chooses.

 

        Improvements equity

Improvements equity involves a tenant showing their entitlement to compensation for improvements they have made to the property where the value of the improvements is 50% or more of the letting value of the property at the time the tenant seeks to claim relief. A tenant who successfully claims relief for improvements equity is entitled to a new 35 year lease or a lesser period if the tenant chooses.

 

  • Where a tenant can show one or more of the above they will be entitled to claim a new tenancy from the end of their current tenancy. Terms should be agreed with the landlord but if they cannot be agreed the tenant is entitled to go to Court to have the terms of any new tenancy fixed by the Court.

 

  • With regards to the Court’s involvement the Court must set the rent for the new tenancy which will in effect be the market rent based on expert evidence presented to the Court. The Court cannot provide for rent review clauses but the act does allow both the landlord and tenant to apply for a review of rent at each five year period of the Lease.

 

Deeds of Renunciation

 

Since the amendments introduced in 1994 it is possible for the landlord and tenant to contract out of the reliefs.  This is where a Deed of Renunciation is signed by the Tenant having received independent legal advice.  It used to be the case that the Renunciation needed to be signed before the tenancy began but this is no longer the case and it may be done at any time.

 

Loss of Entitlement to New Tenancy

A tenant won’t have a right to a new tenancy in the following circumstances:

 

  1. Where the tenancy has been terminated for non-payment of rent
  2. Where the tenancy has been terminated for breach of a covenant by the tenant
  3. The tenant has terminated the tenancy
  4. The landlord has given notice to quit for good and sufficient reason
  5. The tenancy terminated (other by notice of quit) and the landlord refused to renew the tenancy for good and sufficient reason or would have good and sufficient reason not to renew if a request to renew has been made

 

  • It is prudent for a landlord to ensure that a Deed of Renunciation is always signed when entering into a new lease regardless of the term of that lease. Should the Landlord wish to develop the property in the future it is easier where the tenant has not accrued rights and does not need to be compensated in that circumstance.

Recent Settlement in a personal injuries case by Dillon Solicitors

 

 

Recent Settlement in a personal injuries case by Dillon Solicitors

Dillon Solicitors recently achieved an excellent settlement for a client in a personal injuries case. Our client had entered a petrol station to pay having filled his car with fuel but upon entering the store, he slipped suddenly and without warning on a wet floor and was caused to fall heavily. The proceedings were issued on the basis that, amongst other allegations, there was no mat on the floor and insufficient or no warnings in place. It was also alleged that insufficient cleaning checks were in place and that the floor was unsafe.

Our client suffered a fracture of the left humerous (upper arm) which unfortunately had a significant impact on his day to day life for a number of weeks. Thankfully, the fracture healed well and he made good progress with his physio over the following months.

Settlement talks were convened by the Defendant and the claim was settled for a substantial five figure sum for general damages plus vouched out of pocket expenses plus legal costs. Our client was delighted to reach a very satisfactory conclusion to the case at a relatively early stage in the proceedings. Liability was not formally admitted by the Defendant.

The case was dealt with by Niall MacCarthy who handles a significant case load of litigation files with a particular focus on personal injuries, medical negligence and employment law.

Our client was delighted with the outcome and his feedback was very much appreciated:

Very professional, courteous and the one to one with Niall from the start was excellent and he kept me advised all the way to a successful conclusion.”

If you have any queries on personal injuries or other litigation matters, please contact Niall MacCarthy or Brendan Dillon of this office on niallmaccarthy@dillon.ie or (01) 2960666.

Enforceability of Mediation Agreements

 

Enforceability of Mediation Agreements

 

On the 1st of January 2018 the Mediation Act, 2017 commenced. The Act was passed to encourage more disputes to be referred to mediation and in this regard introduced the following new initiatives:-

 

  1. Solicitors are to provide advice and information in relation to the issuing of proceedings in all litigation. Previously it had only been in family law proceedings that there was such an obligation.
  2. The Court has the facility to suggest that the parties consider the process of mediation. While this suggestion is not binding on the parties, it is usually very persuasive.
  3. The Court can take into account, when awarding costs, if one of the parties refused at an earlier stage, to engage in mediation.

 

In the area of family law in particular, mediation can be a very effective way of resolving disputes particularly as it gives the couple in question the opportunity to resolve matters relating to children and parenting issues as well as other sensitive issues.

 

It is important to note that pursuant to Section 11(2) of the Mediation Act, a mediation agreement will now be legally enforceable unless the agreement states to the contrary. Previously, it had been the case that a mediation agreement would only amount to a “memorandum of understanding” and was not legally binding.

 

The potential enforceability of mediation agreements (many of which could be facilitated by non-lawyer mediators who may not be aware of the dangers of facilitating an enforceable agreement) can be as follows:-

 

  1. If it is deemed that the mediation agreement is enforceable, it is possible that it will have been negotiated without full financial disclosure that the Court requires in order to make proper provision in the context of a divorce.
  2. As such the Court may have a difficulty in ruling such an agreement as an Order for Divorce i.e. there may be an enforceable agreement but one that cannot be ruled as a divorce.
  3. If the parties intend to obtain a Judicial Separation on foot of the mediation agreement, the Court may not be able to make such an order as the enforceable mediated agreement may well mean that the parties are already separated and that the mediated agreement may have the same status as a separation agreement. This would mean that the Court cannot rule the terms as a consent Judicial Separation. This would mean that the parties, if not living separate and apart for two years would have to wait for the two years to expire and seek to have matters dealt with in the context of a divorce.

 

Accordingly, in circumstances where the mediation would usually have been concluded without the parties having obtained independent legal advice it is very important that the mediated agreement contains a clause stating that the agreement is not intended to be legally binding and that the agreement will not become legally binding until such further steps are taken, i.e. full exchange of financial information and the translation of the agreement into a full binding agreement  in the context of either a Judicial Separation or a Divorce.

 

If you have any queries regarding any family law matter please do not hesitate to contact either Brendan Dillon or Lorna McArdle on 01 2960666.

The Industrial Relations (Amendment) Act 2019

 

The Industrial Relations (Amendment) Act 2019

Definition of Industrial Relations Act 1990 –

 

“Employer” means a person for whom one or more workers work or have worked or normally work or seek to work having previously worked for that person;

“Trade dispute” means any dispute between employers and workers which is connected with the employment or non-employment, or the terms or conditions of or affecting the employment, of any person;

“Trade union” means a trade union which is the holder of a negotiation licence under Part II of the Trade Union Act, 1941;

“Worker” means any person who is or was employed whether or not in the employment of the employer with whom a trade dispute arises, but does not include a member of the Defence Forces or of the Garda Síochána;

“industrial action” means any action which affects, or is likely to affect, the terms or conditions, whether express or implied, of a contract and which is taken by any number or body of workers acting in combination or under a common understanding as a means of compelling their employer, or to aid other workers in compelling their employer, to accept or not to accept terms or conditions of or affecting employment;

“strike” means a cessation of work by any number or body of workers acting in combination or a concerted refusal or a refusal under a common understanding of any number of workers to continue to work for their employer done as a means of compelling their employer, or to aid other workers in compelling their employer, to accept or not to accept terms or conditions of or affecting employment.

 

Definition of The Industrial Relations (Amendment) Act 2019 – 

An Act to amend the Industrial Relations Act 1990 in order to provide for the application of certain provisions of the Industrial Relations Acts 1946 to 2015 to certain members of the Garda Síochána; and to provide for related matters.

This effectively means that Garda members will now have access through their representative associations to the services of the Workplace Relations Commission (WRC) and the Labour Court to resolve industrial relations disputes where they were previously precluded.

The Department of Justice said that new internal dispute resolution mechanisms had been introduced in An Garda Síochána and specialist staff had been appointed.

“Management of industrial relations in An Garda Síochána now comes under the direct remit of the Garda Commissioner,” Minister for Justice Charlie Flanagan said. “This is in keeping with the vision of the Commissioner as the ‘true CEO’ of An Garda Síochána, as set out in the report of the Commission on the Future of Policing in Ireland and contained within its implementation plan, ‘A Policing Service for the Future’.”

 

Report of the Commission on the Future of Policing:

The Commission on the Future of Policing was established by Government and commenced work in May 2017. It was tasked with undertaking a comprehensive examination of all aspects of policing including all functions carried out by An Garda Síochána.

The Commission published its report on 18 September 2018..  The report makes many innovative proposals. It places an emphasis on understanding policing as including not only the prevention or detection of crime, but also the prevention of harm and protection of vulnerable people, and the implications of this for the whole of Government.

For any further advice or information in relation to any employment related matter please do not hesitate to contact Niall MacCarthy or Brendan Dillon on 01 2960666

RECENT CASE HIGHLIGHTS THE NEED FOR DISCIPLINARY PROCESSES TO BE FAIR

 

RECENT CASE HIGHLIGHTS THE NEED FOR DISCIPLINARY PROCESSES TO BE FAIR

 

In a recent case in the Labour Court of Ibrahim Salah -v- RCI Callcentre (Ireland) Limited the Labour Court overturned a decision of the Workplace Relations Commission and awarded a sum of €20,000.00 to the Applicant who had been dismissed from his job.

 

The Applicant had had a number of complaints against him but in the course of the investigation two other allegations were put to him namely that he had dropped a substantial number of calls and that he conducted an authorised transaction.    Following the disciplinary hearing in which the allegations were upheld his dismissal was confirmed on the 9th of February 2017.   He appealed this decision but this was unsuccessful.   He brought a claim seeking adjudication by the Workplace Relations Commission but the compliant was dismissed by the Adjudicator.

 

In the Labour Court his appeal against that decision was upheld. The Labour Court referenced the fact that neither of the customers who apparently claimed that the Applicant had been rude to had made a formal complaint.   The Chairman Alan Haugh also referred to the fact that that two additional disciplinary allegations were made against him in the course of the investigation and a paragraph from Mary Redmond’s book on Dismissal Law was quoted “heavy emphasis have been laid in recent case law on the duty of an Employer to set out clearly allegations made against an Employee from the outset, with the employer not being permitted to augment the allegations as the investigation progresses.   This is because an employee is entitled to be informed at the outset of the complaint(s) being made against him or her in order to ensure he/she has had a meaningful opportunity to prepare and present his/her Defence.

 

It was determined that Mr Salah was not informed at the outset of the investigation of all the allegations ultimately raised against him.  It was also noted that the disciplinary hearing lasted only 20 minutes and the individual who conducted the investigation was able to communicate his decision over just three hours later.   It was also determined by the labour Court that a sufficient consideration imposing a lesser sanction was not properly considered.    It was also noted that two of the persons involved in the disciplinary process had been involved in previous disciplinary hearing involving Mr Salah.

 

In conclusion, it is very important for employers to be vigilant to ensure that in circumstances where there are they are conducting a disciplinary hearing against any employee that all of the allegations been made against the employee are set out at the outset of the process and that any person involved in the disciplinary process does not have a conflict of interest by reason of having previously dealt with a complaint/allegation against the person who is the subject matter of the disciplinary process.

 

If you have any employment law related queries do not hesitate to contact Niall MacCarthy Brendan Dillon on 01 2960666

What to watch out for with Variable Interest Mortgage Rates

 

What to watch out for with Variable Interest Mortgage Rates

 

Mortgage Interest rates are a hot topic at the moment, with Banks in tough competition with each other to offer the best interest rates to consumers.

We see many low interest fixed rate mortgages but what about variable rates? There are a few different variable rates for example; standard variable rate, tracker variable rate, capped rate etc. but for the purposes of this article I will focus on the standard variable rate.

A standard variable rate is linked to the rates of the European Central Bank (ECB). As a result the lender can increase or decrease interest rates when the ECB rates rise or fall. It is worth noting that the changing of interest rates is strictly at the Lenders discretion and they are not obliged to make changes.

When entering into a Mortgage, you must be aware that you are entering into a legally binding contract with the Lender and therefore the rules of Contract Law apply. As with every Contract you should read each clause carefully and ensure that you fully understand same. In particular you should ensure that you fully understand how the Lender can change interest rates.

Some Mortgage Contracts have express limitation clauses which means that the interest rate can only be altered by the Lender in response to ‘market conditions’. A sample clause could be ‘Rates of Interest are altered in response to market conditions and may change at any time without prior notice and with immediate effect’. What this means is that a Lender can alter the interest rates in response to market conditions and does not have to take into consideration ECB rates.

The term market conditions has been considered in may court cases and it is worth noting that the cost of funding for a Lender can be considered a market condition.

Some mortgages give Lenders complete discretion when it comes to changing variable interest rates. Again these clauses have been considered in a number of Court cases and what the Courts have said is that Lenders cannot set variable interest rates dishonestly, for an improper purpose or unreasonably and that they cannot exercise their discretion in a way that no reasonable Lender acting reasonably would.

We can see that variable interest rates would be more favorable to Banks given the discretion that it affords to them but it is particularly important that consumers fully understand the terms on which the Lender can alter the interest rates prior to entering into the mortgage.

Consumers must remember that the Mortgage is governed by law which includes for example, rules set by the Central Bank, Contract Law and the European Communities (Unfair Terms in Consumer Contracts) Regulations 1995.

Should you have any concerns in relation to your Mortgage you can contact the Financial Services and Pensions Ombudsman or a Solicitor for advice.

At Dillon Solicitors we are experienced with reviewing Loan Offers and also representing clients in actions against Lenders.

 

 

ABUSE OF PROCESS AND ISAAC WUNDER ORDERS

 

ABUSE OF PROCESS AND ISAAC WUNDER ORDERS

An Isaac Wunder Order is an order of the court that requires a litigant to apply to court for its prior consent to issue further proceedings against the same party against whom it is found they have already initiated proceedings that are an abuse of process.

The name comes from the 1967 case of Wunder v Irish Hospital Trusts (1940) Limited.

HISTORY

In the Wunder case, the Plaintiff claimed to have a winning ticket for a draw in 1948 in a sweepstakes operated by the Defendant. However, the claim was only presented in 1962 and the Plaintiff claimed that he accidently destroyed the winning ticket. A number of actions were brought by the Plaintiff against the Defendant. The Supreme Court held (on appeal) that the proceedings were vexatious and made an Order requiring the Plaintiff to seek leave of the court if further proceedings were to be initiated by the Plaintiff.

In the case of Keaveny v Geraghty in 1965, the Supreme Court found that the High Court had an inherent jurisdiction to dismiss or stay proceedings and also ordered that the Plaintiff must first seek leave of the High Court to bring future proceedings in order for those proceedings to be valid.

There has been more recent case law where successful applications for Orders have been granted also.

BASIS OF AN ORDER

Points that will be considered by the court:

  • Has there been habitual and persistent institution of vexatious proceedings
  • Are the proceedings brought without any reasonable grounds
  • Have the proceedings been brought for an improper purpose
  • Have costs of previous unsuccessful claims been paid
  • Have there been persistent unsuccessful Appeals

If an Order is granted, that litigant must seek leave of the court to commence proceedings which is a subjective test.

CONCLUSION

  1. These Orders are granted in limited circumstances given the impact of the Order of the constitutional rights of a potential Plaintiff;
  2. Where there is an abuse of process proven, the Order may be granted as a proportionate and appropriate response;
  3. The UK have a similar Order set out in the Civil Practice Rule 3.11 – Practice Direction 3C.

If you have any queries on any aspect of litigation, please do not hesitate to contact Niall MacCarthy or Brendan Dillon on (01) 2960666.