The impact of the Irish Legal Profession on Ireland and its economy – a note on law related matters from Kilkenny Solicitor firm

The Irish Law Society, recently commissioned an independent survey by leading Irish economic consultancy firm Fitzpatrick Associates, analysing both the impact of the downturn on the solicitors’ profession and the sector’s contribution to the wider Irish economy.

The report details the profession’s immensely valuable contribution to the wider economy, showing the enormous and very positive impact we make. Among the key findings:

  • The legal services sector, of which solicitors make up around 70% of professional practitioners, had 18,000 persons engaged in 2014 and is expected to contribute €1.46bn in gross value added (GVA) to the Irish economy this year.
  • The sector is second only to telecommunications in terms of overall direct contribution to economic output among key service sectors examined.
  • More people are engaged in legal services than the engineering or telecommunications sectors.

As for the legal profession itself, the figures are stark:

  • Gross incomes for self-employed solicitors fell by 43% over the period 2007 to 2012. The greatest declines were outside Dublin; the Border, Midlands and Western region saw incomes fall by as much as 53%.
  • Between 2008 and 2012 employee numbers engaged in the legal sector fell by 21%.
  • Personnel costs, wages and salaries fell by 20% between 2008 and 2012.
  • There was a five-fold increase in the number of legal professionals receiving unemployment benefit or assistance between 2006 and 2009, while the 2014 numbers remain three times higher than they were in 2006.

– Holland Condon solicitors from Kilkenny Ireland

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Consumer Law – a commentary on legal matters affecting Irish Society from Solicitors based in Kilkenny

  • An area of Contract Law

Designed to protect consumers from misleading advertisements, faulty products and services, and to provide injured parties in a “Consumer” contract with remedies.

~ most rights are “implied terms” into contracts as laid down by custom, EU Law, legislation and Courts;

~ small consumer v wealthy large corporations (imbalance);

 

Who is a Consumer?

Generally speaking a consumer is defined in Irish law as a natural person who buys goods or a service for personal use or consumption from someone whose business it is to sell goods or provide services.  By law, you are not a consumer if you: –

  • receive goods as a gift;
  • buy goods for commercial purposes (i.e. you will be using the goods for commercial and not private use);
  • buy goods for private use that are normally used for business purposes;
  • buy goods from an individual who is not in business (i.e. you buy a car from an individual whose normal business is not selling cars);

 

~ Consumer Law main areas

  • Sale of Goods Act, 1893, as amended by
  • Sale of Goods & the Supply of Services Act, 1980
  • Consumer Protection Act, 2007
  • EU Law is very active in this area of consumer contract regulations. Take note of Unfair Terms in Consumer Contracts Regulations, 1995.On 14th June 2014,the European Union (Consumer Information, Cancellation + Other Rights) Regulations 2013 came into operation and give effect to EU Directive 2011/83/EU.

 

~ Sale of Goods & Supply of Services Act, 1980

Defines a contract for the sale of goods as one where seller agrees to transfer ownership of goods to a buyer “for a money consideration” called a price.

  1. Sale contract not mortgage or loan;
  2. Transfer of goods not land or shares;
  3. Price – there must be one. So cashing in “loyalty tokens/points” for a product is not a sale;

The Act implies a list of “terms” to sales contracts in the course of business as opposed to “private sales” (2 consumers selling to each other) –versus-  business/trader selling to private consumer (buyer).   Most of these implied terms only apply to consumer contract, though some apply to private sales.

 

Following terms implied in Consumer Contracts: –

  • Seller has “title” to goods = Vendor owns them & no loan or HP on them;
  • Goods sold correspond to “description” used e.g. “cashmere” see Beale v Taylor; applies to private sales & consumer sales;
  • Goods of “merchantable quality” seen as what a reasonable person would accept as reasonably suitable taking account of price, description, durability, conditions. Even if they are not merchantable quality, buyer will not succeed if defect brought to his attention or defect was noticeable.

Merchantable quality also means item(s) is safe to use.  Grant case.

  • “Fit for purpose required” ~ if buyer expresses the purposes for why they are buying the goods, then duty to provide goods that fit Baldry case;
  • “Goods sold by sample”, must correspond with sample and buyer must have opportunity to compare the sample.

 

Supply of Services – extends rights to services and also goods supplied with the service are subject to the “implied terms”.  As regard the service (e.g. car service) in contracts where supplier is acting in course of his business, then: –

  • He must have necessary skill;
  • Supply service with care;
  • Use sound materials;
  • Supply the service within reasonable time & price, if they are not specified.

 

Remedies for Breach of Act

  • Consumer can cancel/repudiate contract +====> gets refund;
  • Repair;
  • Replacement

 

~ Consumer Protection Act, 2007 (CPA 2007)

= implements EU directive on unfair commercial practices.  It introduces a general duty on all business to trade fairly and applies to all contracts between traders and consumers.

  • Prohibited Practices = unfair commercial practices and lists over 30 practices considered unfair e.g. “closing down sale”; putting adverts in papers that look like editorials and not adverts; failing to run the competition that promoted the sale of the goods;
  • Misleading Practices are deemed offences i.e. price, Country of origin, method of manufacture, quality of product, quantity, specification.  Tesco prosecution;
  • Aggressive Practices = harassment, coercion or undue influence e.g. time share sales people;

Act creates criminal offences.  Also civil offences where consumer or NCA can sue for damages.

                                              

N.C.A. – National Consumer Agency

  • Established in 2007 and given statutory footing by CPA 2007;
  • Now merged with Competition Authority under Department of Enterprise, Trade & Innovation;
  • Functions
  • To promote & protect the interests & welfare of consumers;
  • To enforce the relevant statutory provisions including by summary prosecution;
  • To encourage compliance;
  • To investigate suspected offences; and
  • To refer relevant cases to the Director of Public Prosecutions.
    • List method of enforcement – Prosecution, Complaince Notice, Undertakings, Prohibition Orders, Fixed Notices.

 

Consumer Rights 2015

In late 2014, the Irish Government published a consultation paper on proposed legislation to consolidate the law on consumer rights. You have 1893 Act and 1980 Act, 2007 Act and Consumer Credit Act 1995 with host of Regulations. Department of Justice have been seeking views from interested parties and the public on what needs to be added/amended with a view to introducing a Consumer Rights Act.

 

– HOLLAND CONDON SOLICITORS KILKENNY

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Discharge of Contract

Discharge of Contract = Contract is at an end; rights & obligations of parties terminated/cancelled/discharged 6 ways.

  1.  Discharge by Performance = if parties do exactly & precisely their terms = contract extinguished e.g. Cutter v Powell. If a party does not, then, offender may be sued for breach (see below).
  2. Discharge by Notice = Contract can be terminated by 6 weeks notice eg lease, agency .
  3. Discharge by Agreement = 4 examples
  • Waiver of Contract; where neither party has done anything & both agree to cancel ( known as “bilateral discharge”);
  • Release of non-performing side by other party who had done all or part of their obligations (“unilateral discharge” & here non-performer must give consideration for cancellation);
  • Novation = old contract not performed at all & parties substitute it with new one.
  • Conditional Contract = the contract has a condition allowing cancellation e.g. buy site subject to getting planning = if no planning got =sdeal off

4.   Discharge by Breach of Contract

*Repudiatory Breach = an actual breach of a condition not a warranty gives rise to right of injured party to decide to terminate the contract (repudiate) or continue; and/or sue for damages ; so it’s serious/fundamental breach e.g. Dundalk Shopping Centre v Roof Spray Ltd  ;  Robb v James non payment for fabric within the 24hour agreed time frame entitled owner to repudiate & sell to 3rd Party;

*Anticipatory breach – offending party says in advance that it won’t perform its obligations e.g. Hochster v De La Tour: Plaintiff due to work for Defendant as courier from 1st On 11th May Defendant says contract now being cancelled.  On 22nd May Plaintiff sues but Defendant says case not actionable until 1st June.  Held: Plaintiff was entitled to sue when “anticipatory breach” happened on 11th May.

  1. Discharge by Operation of Law e.g. mental illness/insanity ;minor ; insolvency; bankruptcy.
  1. Discharge by Frustration = something beyond the parties control & foresight that renders it impossible to perform the contract by one or both sides. The event or action occurs after the contract and must involve: -
  • unforeseeable event;
  • causes radical change in obligations;
  • completing contract made impossible;
  • not caused by either party

Remember – element of outside parties control & unforeseen; see Ocean Trawlers case & Mulligan v Browne

Examples: –

  • Destruction of subject matter (impossibility) e.g. Taylor v Caldwell
  • Contract now made illegal by Law e.g. Ross v Shaw
  • Sickness, death or incapacity e.g. Robinson v Davison
  • Non-occurrence of a condition e.g. Krell v Henry

— Consequences of Frustration

Contract automatically comes to an end! Old rules “the loss lies where it falls” so from the date of frustration any payments beforehand could not be recovered and money owed after the date no longer is owed   =>  unfair results ————-> so money paid beforehand (before frustration) can be recovered if nothing given for it e.g. Fibrosa case.

There is NO frustration: –

  • If event provided for in contract (e.g. sickness of singer);
  • foreseen;
  • event only amounts to an inconvenience;
  • there is an alternative means of performing contract

_____________________________________________

 

Remedies for Breach of Contract

At Common Law: – actual right of Plaintiff to Remedy

  • Damages
  • Specific sum in Contract
  • Quantum Meruit

At Equity: – Courts discretion to give remedy & only used where common law remedies not adequate.  Not automatic right to these remedies.

  • Specific performance
  • Injunctions
  • Rectification of Contract
  • Recission

 

Damages = put Plaintiff in position as if contract performed (compensation)

* Liquidated Damages – Specific sum detailed in contract

* Unliquidated Damages – Court decides

2 Stages involved in deciding on damages

  • Damages which are remote will not be recovered = foreseen losses will be compensated e.g. Rowan case;
  • How much = “reliance loss” or “expectation loss”

Rider =  Plaintiff must mitigate their loss (minimise your loss) e.g. BIM v Scallon

Quantum Meruit = “as much as has been deserved or merited”.  You could claim damages or ask Court to assess amount you deserve. This is an alternative to damages

Recission = one party seeks to have contract set aside by court and everyone put in the position they were in BEFORE the contract was performed.

  • Can claim recission & not damages
  • May not also award damages
  • Equitable

Specific Performance = wrongdoer to complete deal

  • Equitable remedy
  • Rules/maxims of equity apply
  • Court never grants specific performance in 5 situations?
  • May also award damages
  • Equitable

Injunction = order a party to do or not to do something so as to rectify their breach

  • Mandatory
  • Prohibitory e.g. Wagner
  • Starts as as Interlocutory Injunction – to keep status quo temporary, AND later it may become Permanent
  • Equitable remedy
  • Maxims of equity apply
  • No injunction if damages are an adequate remedy
  • Equitable

Rectification = where dispute arises and upon investigation the Court can clearly see an error in the contract, it may rectify it e.g. $ used in contract when it should have been €.

 

1st Question (in all claims for legal remedies/ legal problems addressed to you, whether its contract or what area of the law is involved ) = Is the claim statute barred generally 6 yearsfrom time of wrongdoing/breach  (if Deed( =a special  legal document) is involved then 12 years limit);

 

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Law of Contract

This is the civil side of our law.

Main Sources = Common law, Statute & EU law

Definition =

  • Legally binding agreement
  • Freely entered by 2 people
  • Giving rights and obligation on both sides
    • Breach allows injured person to sue

Types:

  • Bilateral – 2 parties exchange promise & bound from beginning
  • Unilateral – initially 1 person bound from the beginning e.g.

Carlill -v- Carbolic Smoke Ball Co

The Case on Contract Law.  Offer & acceptance & elements of Contract discussed.If sniff smoke ball 3 times daily for 2 weeks & still caught flu.  £1000 lodged in Regent Street Bank “as token of our sincerity”.£100 reward each person.

 

Essentials for a Contract: All must be present to be legally enforceable = 

 

Essential elementsOf a Contract
  1. Agreement between the parties. (Not all agreements are contracts);
  2. Terms of Contract expressed with a degree of certainty;
  3. Parties must possess the intention to create legal relations;
  4. Exchange of consideration;
  5. Contract must be legal & capable of being carried out.

 

 

  1. Agreement element =

OFFER: -

  • Is a clear and unambiguous statement of the terms on which a party is prepared to be bound contractually;
  • In writing or verbal or implied by conduct;
  • Made to one person or to the world at large.

Invitation to Treat = invitation to make an offer.  You might think its an offer but its not! Examples:

1. Advertisements               Partridge case                                                                                               Carbolic Smoke Ball                                                                                    Grainger

  1. Display of Goods for Sale                                                                                                              Boots Pharmaceutical case – criminal case involving offence of offering for sale.
  1. Auction Sales
  2. Catalogues/brochures and quotations and tenders

Boyers case – quote for 3,000 yards canvass (1905); Plaintiff had asked for quote & Defendant gave below cost price.

ACCEPTANCE: –

  • Accepting the offer = agreement;
  • Can be in writing or verbal or implied by conduct
  1. Acceptance must be unqualified e.g. Neale v Merrett;
  2. Acceptance must be communicated (e.g. Russell case), except can be implied by conduct e.g. Carlill v Carbolic Smoke Balle. unilateral contracts

Offer, Acceptance & Postal Rule: –  If ordinary post is used: –

  • Offer made when letter received by offeree;
  • Offer is accepted (= agreement) when offeree posts the acceptance not when offeror gets it!
  • Offer revoked when offeree received letter, provided offeree has not already accepted it

*Largely its historical as communication is mainly electronic these days.

Termination of an Offer: -

  1. Rejection;
  2. Counter offer made by offeree e.g. Hyde v Wrench;
  3. Unreasonable lapse of time between offer and acceptance e.g. Victoria Hotel Co;
  4. Withdrawal (revocation) of the offer before it is accepted by the offeree e.g. Routledge case;
  5. By Law = death of one of the parties, bankruptcy, lunacy/incapacity of one party;
  6. Before performance in unilateral contracts e.g. Shuey case.

 

  1. Terms of the Contract must be expressed with degree of certainty.

 Parties must possess the intention to create legal relations

Domestic/Social Agreements ~ Courts presume parties do not intend to enter legal binding contract e.g.

1. Contracts between spouses = Balfour v Balfour

  1. Parent and child = Jones v Padavatton

Irish High Court have said presumption only applies to close family.

 

Commercial Agreements ~ strong presumption that parties intend to enter contract where business agreement e.g. Rose v Crompton

O’Rourke v Talbot: Irish company entered agreement not to make 4 men redundant; gave “guarantee” protection; made men redundant.  Held although company did not intend it to be legally binding, they did not communicate this so they were bound by it.

  • Express terms: “not legally binding” or “Subject to Contract” = no intention

 

“Possess” => Capacity i.e. capable of entering an agreement

  • Minors = you only have capacity if you are 18plus or married, but minors are bound for

(A) Necessities (Sale of Goods = actual requirements) e.g. Nash v Inman

(B) If contract is of benefit to the minor e.g. training contract

For Minors, following agreements/contracts always void =

Repayment of money lent; 2. Goods not necessaries;3. Money owing.

  • Person of unsound mind (all about lacking mental competence) then contract is invalid if  (1) Person was unable to understand contract AND (2) Other person knew or ought to know this.
  • Drunkard = same as above;
  • Convicts = couldn’t enter contracts = Forfeiture Act 1870 except this has been changed by Criminal Law Act, 1997;
  • Companies acting “ultra vires” their objects;
  • Other important aspects that affect capacity to enter contracts by not having the ability to give genuine consent =

~ Duress e.g. forcing someone        ~ Undue influence e.g.influencing old person

~ Parties mistake or misrepresentation      ~ Companies acting ultra vires

 

  1. Consideration = what each party gives

quid pro quo = ‘something for something’ e.g. buying bar chocolate: “A” gets chocolate and “B” gets money for it

= you do something for me and I’ll do something for you.

 

~ Executed Consideration = a promise for an act e.g.  I’ll give you €1000, if you give me your car ;

~ Executory Consideration = a promise for a promise – both sides promise to exchange consideration in the future e.g. I promise to give you €10 when I get the flowers and you promise to deliver the flowers to me tomorrow.

 

Rules of Consideration: –

  1. Consideration must be sufficient but need not be adequate Thomas v Thomas ;
  2. Consideration must be present and not past e.g. Re McArdle
  3. Consideration must be more than what party has to do Collins v Godfrey;

 

If No consideration given, then probably no contractUNLESS it’s either a document under seal in a deed OR by virtue of Principle of Promissory Estoppel = where a person makes a promise & no consideration passing (e.g. to waive a debt or obligation) and where promisee acts on the promise, equity can say the promissor is estopped (prevented/stopped) from retracting the promise.

 

  1. Contract must be legal & capable of being performed.

NOW WE HAVE A LEGAL CONTRACT  !!!

****************  We have a contract, so what’s in it?

Contents of Contract

Terms of Contract = what each party is obligated to do.  They can be

  • Express terms = actually there (best if written)
  • Implied terms = although not specifically agreed the Law says they are there i.e.

Terms implied by Custom;   By Legislation; By the Courts; By the Constitution; By E.U. Law;

Terms of Contract divide into three categories: –

1. Conditions

  • Vital terms
  • If breached other party can repudiate contract & sue for damages e.g. Arcos v Ronassen

2.Warranties

  • Not as vital but important
  • If breached other party can only sue for damages e.g. Bettini

3.Innominate Terms

  • Where Court cant determine if its condition or warranty
  • Breach MAY entitle repudiate if substantial benefit lost (+/or get damages) e.g. Hong Kong Fir Shipping case, Irish Telephone Rentals case

Exemption Clauses = Terms of Contracts attempting to exclude or limit liability of a party for a breach = Also known as exclusion clauses or limitation clauses.

Defined as a clause in a contract which attempts to limit, exempt or exclude liability of one party where loss or injury occurs to the other party to the contract.

Courts disapprove of them and have put in place strict rules governing validity. Rules =

  • Written contract with exemption clause signed by parties; parties generally bound by it e.g. L’estrange v Graucob;
  • Oral contract with exemption clause – parties bound if brought to their attention in advance e.g. Thornton v Shoe Lane Parking;
  • Deemed incorporated through course of dealings – exemption clause not notified but parties had a few previous transactions e.g. Spurling v Bradshaw;

 

If Court says exemption clause is validly incorporated then it must interpret it.  Courts have “leaned against them” & use strict & narrow interpretation =

  • Contra Proferentum Rule – if its unclear, then Court takes the meaning that’s least favourable to party wanting to enforce e.g. Houghton v Trafalgar;
  • Main Purpose Rule – clause cannot be used except for the main purpose of the contract e.g. Sze Hai Tong Bank v Rambler;
  • Fundamental Breach – party cannot use the clause where that party is in fundamental breach of contract Clayton Love case

 

Exemption Clauses in Consumer Contracts

  • Consumer Law including Acts, has restricted  their use in consumer contracts, that is a contract betwee a business and a consumer e.g.  Sale of Goods and Supply of Services Act, 1980 prohibits their use in certain situations i.e.exempting liability relating to merchantable quality for example.
  • Exemption clauses can be used in contracts between two businesses as long as the clause is “fair and reasonable”.    Finney Lock seed case
  • European Communities (Unfair Terms in Consumer Contracts) Regulations, 1995 were implented here as a result of EU directive. Apply to consumer contracts and exclusion/limitation clauses will be deemed unfair if they cause a”significant imbalance in the parties’ rights and obligations”. By the way, under this Regulation, the High Court issued an order setting out 10 types of clauses that would be unfair if used in contracts to buy a new house in a housing estate.
  • If a clause is found unfair then the clause is removed from the contract but the rest of the contract still stands/applies.
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The Irish Legal System

SOURCES OF IRISH LAW = 

  • Irish Constitution 1937;
  • Legislation (Primary & Secondary Legislation);
  • E.U. Law;
  • Case Law (known as judicial precedent);

 

~ Irish Constitution 1937

  • Bunreacht na hEireann; 50 Articles in it;
  • Primary source of Law in Ireland;
  • Higher status than any other domestic law;
  • All Laws must comply with the standards set out in the Constitution = all domestic laws must not conflict as otherwise they are unconstitutional;
  • Establishes Organs of the State and describes how they are to run = 3 Organs =
  • President & Oireachtas (Parliament) = power to enact legislation. Dail Eireann & Seanad Eireann & President;
  • The Government = Executive Power of State is held by it. The power to implement the Legislation;
  • The Courts = judicial power to interpret and apply the Law.

 

  • Democracy require this “Separation of Powers” so each acts as a check on the other. “Power tends to corrupt, and absolute power corrupts absolutely” = Lord Acton.
  • Lists Fundamental Rights & Freedoms e.g. equality before the Law, right to education; to life, to travel, to personal liberty, to property;
  • Change Constitution by Referendum.

~ Legislation

  • Houses of the Oireachtas have sole power of making Laws (Article 15 Bunreacht);
  • Must comply with Constitution;
  • Legislature = Oireachtas = Parliament (i.e. same meanings);
  • Primary Legislation: -
    • Enacted by Oireachtas;
    • Draft Legislation = Bill e.g. Finance Bill goes through 5 stages in Oireachtas;
    • When passed, signed by President and becomes an Act e.g. Finance Act; or President refers to Supreme Court if concerned with Constitutionality;
    • Dail à Seanad à President;
    • (1) Public Acts + (2) Private Acts.   (1) = General and (2) = Specific;
    • Acts can introduce new law; amend laws or consolidate Law where lots of Acts over years;
    • Act = Legislation = Statute (i.e. same meanings).
  • Secondary Legislation: -
  • Subordinate or Delegated Legislation to Minister, Local Authorities etc.;
  • Forms it takes = *Orders ( =directions); *Rules (=guidelines); *Statutory Instruments (=give effect to statutory provisions); *Regulations (=explaining Acts); *Bye-Laws (=regulate particular area); *Schemes (=rules for fees)
  • Doesn’t come before the Dail;
  • Advantage = allows for speed;
  • Disadvantage = too much Law made in this way and no publicity about it;
  • Rules governing delegated legislation = (a) must be Constitutional, and (b) Body who has the Power (e.g. Minister) must use it intra vires and not ultra vires.

 

~ Case Law (Judicial Precedent)

  • Ireland is Common Law System = a legal system that recognises case law as capable of establishing Laws;
  • Decisions made by Judges = case law = Judge made law but only if no legislation enacted covering the area;
  • History = Brehon Law was overtaken after 1014 and 1066; Normans had unwritten customs; then came the British established unified Laws around empire “Common laws everywhere” (16th century); apply by Judges; become too rigid = unfair, so Law of Equity developed culminating in Judicature Act which merged equity and Common Law;
  • Cases establish a principle of law which is followed in subsequent cases = Precedent. Must be followed by Lower Courts.  This is known as Doctrine of “Stare Decisis”=Stand by your decision.
  • A Court decision is divided into “Ratio Decidendi” (reason for deciding) and “Obiter Dictum”=(something by the way). Former is binding and latter is of great influence;
  • Advantages of Precedent as source of law = consistency; certainty and efficiency. Disadvantages = vast numbers of cases; inflexible at times; can result in unfairness.

 

~ European Law

  • Takes precedence/superior over national law and the Constitution (see intro in your manual);
  • Our Constitution allows for EU Law;
  • Sources of EU Law: -
  • Primary Legislation – the Treaties; List them please
  • Sets out broad objectives of EU – gives and establishes EU Institutions and their powers;
  • Secondary Legislation – which are
  • Regulations = immediate Law and binding on all and directly applies in each State. Give example;
  • Directives = EU cant interfere in every area of Domestic Law (e.g. minimum wage) so these are instructions to member States to enact Law to meet an EU objective. Time limit to enact and if not, be fined and a directive can have direct effect.
  • Decisions – Bind those who are addressed;
  • Recommendations & Opinions

 

~ EU Institutions

  • Original Objective of E.E.C. = Free movement of goods, people and capital with a common external barrier;
  • Democracy require Separation of Powers so EU has number of Institutions

 

The European Commission
  • Executive; Civil Service
  • Drives the EU
  • Commissioner – 5 years
  • President of EU Commission

 

 

The Council of Ministers

Supreme Legislative Body

  • Minister from each Government meet e.g. Agriculture
  • Represent their Country (Member State)
  • Legislative Body & Policy decider
  • Voting (Agreement mainly) Q.M.V.

 

 

The European Council
  • Meeting of Heads of State
  • Free of Institutional formalities
  • Political impetus

 

European Parliament
  • Elected by citizens of Member States
  • Legislation sometimes & advisory & supervisory

 

 

European Court of Justice

 

  • ECJ
  • Court interprets EU Law
  • National Courts can consult it
  • 27 Judges being 1 from each Member State
  • Function to enforce EU Law and ensure consistent interpretation of EU Law around the EU
  • Member States, individuals, Courts in Member States, EU Institutions can bring cases
  • ECJ can also impose fines & penalties
  • Final Court in EU

 

 

Court of First Instance
  • Known as General Court (or EGC)
  • Lower Court with 27 Judges
  • Decisions can only be appealed on a point of law to the ECJ

 

 

Court of Auditors
  • Auditing & Finance

 

 

 

Structure & Jurisdiction of our Courts

  • Justice is to be administered by the Courts = Constitution
  • Courts structure is hierarchial = starts with low Court going upwards
  • Two separate Court structures = (1) Civil & (2) Criminal
  • Each Court has been given certain Jurisdiction = it’s authority (or no authority) to hear a particular case. Jurisdiction depends on location (of parties, the crime, the wrongful act); amounts of money at issue; seriousness of the case/crime; and the nature of the law involved.  Minor matters dealt with in the District Court and as they get more serious, the cases go up to another Court level
  • “Court of First Instance” = cases can start in this Court
  • “Court of Appellate Jurisdiction” = has power to hear appeals
  • “Summary Offence” = minor crime that can be dealt with by a Judge alone
  • “Indictable Offence” = serious offence that can be dealt with by Judge and/or Jury
  • “Arraignment” = accused asked to say if they are guilty or not guilty
  • “Bring an Action” = civil; “Bring a prosecution” = criminal
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” A day in the life of an ATI student “

LAW    AFFECTS    YOU    EVERY DAY                                                                                                  September 2014

 

 

 – A day in the life of You !

  1. You are awaken by your radio alarm clock at 7a.m. On the news, you hear that Musgrave/Supervalu is attempting to take over Superquinn but that the Minister may refer the bid under the Competition Act to the Competition Authority.
  2. The next story on the news is that a particular person has been charged with murder in the District Court and has been remanded in custody to appear again before the court some day next week.
  3. At about 9.30 on your way to work, the driver of a stationary car knocks you off your bicycle when he opens his driver’s door just as you are overtaking. You are shaken but tell him that you are okay.  The bicycle frame might be a bit out of place.  The driver says he will take care of the damage to the bike.  You take his name and address.  He asks if you are alright and you say you are fine.  You go on your way.
  4. Talking with friends during lunch, somebody mentions that Ireland will have to leave the EU and/or a new treaty will be drawn up because of our debt and that a new referendum is likely. Someone talks about the water charges and water meter installation a breach of property rights being unconstitutional.
  5. You arrive back to work 5 minutes late as there was a hot discussion on Europe. Your boss is furious and says that she is letting you go and anyway there is not enough work so she is making you redundant.
  6. To add to your frustrations, on your return home a neighbour has tipped rubbish in your garden.
  7. To relax after the strain of the day you listen to the radio and you decide to record it onto a CD.
  8. Your mother tells you that the washing machine she bought last week is broken and she had been looking for the receipt but cant find it. She says the shop wont replace it without a receipt.
  9. As if you hadn’t had enough excitement for one day, you find it difficult to get to sleep because you have a nagging pain in the back of your neck. Could you have got it when you were knocked off the bicycle?

QUESTIONS

  1. What is a takeover? Who really is Superquinn and what is Musgrave? Why do they want a takeover?  Who wants to sell?What has the Minister got to do with matters? What’s this about the Competition Act and Competition Authority?

2. (a) Why is there so little information about the person who is being charged?

(b) Why is the District Court hearing a murder case as you thought it only heard small cases?

(c) What does remanded in custody mean?

3 & 9.      (a) Is there a Law against the driver for what he did?

(b) Who is going to pay for the damage to the bike?

(c) If you have an injury how are you going to be able to get compensation as you said you were okay but it appears you are not?

4. (a) What is the European Union?

(b) What is a Treaty?

(c) What is the Constitution?

(d) What is a referendum?

 

  1. You feel your boss has been unfair but you don’t have a written employment agreement. Can you do anything?

 

  1. What do you do with the neighbour?

 

  1. (a) Is there a problem with copying music?

(b) If it is against the Law, why can we readily buy machines that record?

 

  1. (a) Who is responsible for the washing machine?

(b) Who do you go after?

(c) What about the receipt?

LAW = are the rules that regulate the conduct and relationships of citizens with each other and the State with its citizens so as to maintain order and to ensure justice prevails in society.

Law divides into Civil Law and Criminal Law e.g. dangerous driving causing an injury to someone.

Law can also be divided into Public Law and Private Law: –

** PRIVATE LAW: Regulates relationships at a micro level i.e. between private individuals and parties/organizations;

** PUBLIC LAW: Regulates at macro level i.e. individuals generally and them with Government.

Criminal Law = Public Law                                                                   Civil Law = Private Law

 

  • Law, which divides into Civil Law and Criminal Law
Criminal Law (Comparison) Civil Law

 

~ mainly its to uphold morality and public order   ~ to regulate relationships and disputes
~ Public wrong (Definitions) ~ Private wrong
~ State Prosecutes (Gardai/DPP) (Claimant) ~ Generally not state = individuals
~ DPP -v- Defendant (Parties) ~ Plaintiff -v- Defendant
~ “Beyond all reasonable doubt” (Tests to establish Liability) ~ On “balance of probabilities”
~ Criminal Law (Sub-divisions) ~ Tort, Contract, Land, Equity
~ DPP issues Summons/Indictment (wordings, commencement) ~ Plaintiff issues a writ
~ Guilty/Not Guilty (findings) ~ Liable/Not Liable
~ Punish & rehabilitate (Purpose of Court Order) ~ Put victim in position as if wrong not committed
~ Prosecute (Objectives of the Law) ~ Sue
~ Fines, Prison, Community Service (Remedies) ~ Damages, Injunction, Recission
~ Murder, Fraudulent trading (Examples) ~ Negligence, Contract Breach

 

  • We see signs outside private property saying “Trespassers will be prosecuted” – really is this the right language?
  • The Distinction between the two            =          the difference is based on the legal consequences NOT the wrongful act.  So, the wrongful act can involve the 2 divisions e.g. a road traffic accident causing an injury; Omagh Bombers; OJ Simpson.

Administrators of Law =

* By the Courts – Conduct hearings (cases) – Make Orders – Adversarial System  * Personnel in Administration of Justice = Judges (come from Legal Profession of 12 years standing); Solicitors (who advice the public); Barristers (advocates); Director of Public Prosecutions (DPP) (Crime); Attorney General (A.G.) (Government Legal Advisor); Courts Service (operate the Courts); Probation Service ( assess offenders for court punishment)

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Transfer of sites to children and relations – stamp duty relief ends this year – an update on Irish legal matters from Kilkenny based solicitors

If you are thinking of transferring a site or land to a son or daughter, remember, if you do it before 31st December 2014,  your child can avail of consanguinity relief to the tune of reducing the stamp duty bill by 50%.

The savings might be enough for them to buy a new kitchen !!

– Holland Condon – solicitors based in Kilkenny

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Delays in Probate Office Dublin – a newsbriefing on Irish Legal issues from Holland Condon

On 15th September, 2014, the main Probate Office for Ireland, issued the following release =

“Current delays in the Dublin Probate Office

To enable Dublin Probate staff reduce the current 16 week waiting period for a grant of representation to issue in a deceased person’s estate, practitioners are requested to note that the Probate Officer is not in a position to consider applications for expedites from Monday 15th September to Monday 13th October 2014.”

It takes about 4/4.5 months to obtain a Grant of Probate or Grant of Administration from the time we lodge all relevent documents with the Probate Office. There can be a lead in time of up to 4 months to gather all the necessary information.

Grants take about 3 weeks in UK compared to a minimum of 8 months here. What are we doing wrong ??

– a newsbriefing on Irish legal issues from Holland Condon

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UK conveyancing system moves closer to being all online – an update on legal matters from Kilkenny Solicitors Holland Condon

The English Law Society announced on Friday 10th October, 2014 that a comprehensive new home conveyancing portal offering an efficient, secure and transparent way of managing the conveyancing process has entered the final stages of development and is scheduled to be launched to the conveyancing profession in Spring 2015.

The new online service, called Veyo, is a joint venture between The Law Society and Mastek UK, a global IT solutions specialist. It is designed to bring together all the processes, checks and documentation prepared and undertaken by solicitors and licensed conveyancers in the sale and purchase of residential properties.

In its first phase, the system will allow professionals to better communicate with each other, clients and other parties, satisfy due diligence obligations more quickly and facilitate the conveyance of residential property through established protocols. In doing so, it will not only speed up the house-buying process for consumers but enables greater efficiency for conveyancers.

Veyo will make conveyancing more efficient. All documentation for each transaction will be kept online, in one user-friendly system that will track activity and progress and issue automatic diary reminders of actions needing to be carried out.

Veyo will be secure. It will provide a clear audit trail of communications between all parties in the transaction, which will strengthen risk management and compliance, therefore reducing the risk of fraud. Its inbuilt CQS endorsed protocol tracks all workflows and its anti-money laundering and identity checks will ensure compliance with lenders’ requirements.

Veyo will be the smart way to service clients. It will provide customers with a secure area to upload and review documents, check progress and view the status of their entire housing chain. It also gives firms of all sizes access to a simple tool to facilitate the house buying process and, as such, will allow smaller firms to use a technically advanced platform only normally available to larger more technologically enabled firms, ensuring conveyancers as a profession maintain the highest of standards.

How Veyo will work

Conveyancers using the service will be presented with a dashboard that will show all active cases and their respective statuses. Each case will have a dedicated screen showing a detailed overview of each property transaction and the progress towards completion. A calendar will show scheduled tasks, key dates and reminders.  Other pages will provide users with an overview of all their transactions, plus messages and activity updates to help keep all cases on track.

Veyo’s online ‘deal room’ for each case will allow the two firms acting for the buyer and seller to collaborate and progress documents efficiently, with an automatic audit of all changes, with versions and approvals captured for each case. The ‘chain view’ for each transaction will show the exchange/completion status of each property in the chain online, and in detail, if firms on the other transactions have chosen to disclose them to the chain.

Veyo users will be able to verify individuals working for the other side of the transaction and they will have to be pre-qualified to be able to use the portal. It will also be possible to carry out anti-money laundering checks with Veyo. Land Registry applications will be available from the launch date, with the integration of searches and HMRC transactions within Veyo also planned for subsequent service releases after the initial launch.

Ireland really needs to take heed of this, and perhaps “piggy-back” on the UK version, implementing it or parts of it here.

– an update on legal matters from Kilkenny Solicitors Holland Condon

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UK Solicitors Regulation Authority steps up its work on money laundering ; lessons for Ireland’s Law Society – a briefing on legal news from Kilkenny Lawyers Holland Condon

The Solicitors Regulation Authority (SRA) in the UK  is stepping up its efforts to ensure solicitors firms do not become embroiled in money laundering activity and are compliant with the various regulations and legislation associated with anti money laundering compliance.

The legal sector is one of a number of areas of work that attracts organised criminals seeking to launder the proceeds of crime. Solicitors have a duty under the Code of Conduct to ensure their business complies with anti-money laundering legislation and the Proceeds of Crime Act (in the UK).

The SRA has been undertaking a specific piece of focus work, which started on Monday 8 September,2014 until May 2015, working with firms to ensure robust systems are in place to guard against solicitors becoming involved in money laundering. This will include closer engagement with those firms identified as most at risk, and providing support and guidance across the whole of the profession from large firms to sole practitioners.

Paul Philip, SRA Chief Executive, said: “Law firms often handle large sums of money, and this means they attract those who seek to launder the proceeds of crime. We want to work with the profession to ensure that all firms, no matter how large or small, have the systems in place to guard against money laundering and that they are compliant with the current regulations and legislation.

“We will also be testing the systems used within firms to report money laundering, and how widely these systems are known within each firm.

“We also want to ensure solicitors are meeting their legal obligations to report suspicious transactions to the appropriate authorities. The SRA will be taking a robust stance on anti money laundering compliance and will deal promptly with any firm that that transgresses the rules.

“Our work will focus initially on those firms deemed at highest risk, but all firms need to be aware of the issue. There will be serious consequences for those who fail to take their obligations seriously.”

The SRA will report their findings after the focus work is completed early next year. perhaps, we should be following suit here in this jurisdiction.

– a briefing on legal news from Kilkenny Lawyers Holland Condon

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