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Covid-19 – Emergency Legislation

Emergency Measures in the Public Interest (Covid-19) Act 2020

and

Health Preservation and Protection and other Emergency Measures in the Public Interest Act 2020

The Legislation

On 20th March 2020, having been passed by both Houses of the Oireachtas, the Health Preservation and Protection and other Emergency Measures in the Public interest Act 2020, was signed into law by President Higgins. The Following week, on 27th March, the Emergency Measures in the Public Interest (Covid-19) Act 2020 was enacted.

The legislation has been introduced by the Government to make provision for emergency measures to mitigate social effects and economic consequences as a result of COVID–19. On the request of the Ceann Comhairle the legislation was passed with a 30% attendance in the Dáil, split proportionately along party lines, representing a democratic consensus among the TDs which supports the legislation’s validity.

Analysis

There is no doubt that the emergency legislation provides a very sizeable grant of statutory authority; potentially the most significant being the amendment to the Health Act 947 which gives the government ability to issue regulations to prohibit travel to or  from the State; travel within the State; require persons to remain in their homes or other places specified by the government, and prohibit events which could reasonably be considered as posing a risk of infection to the persons attending.

The Public Interest (COVID-19) Act 2020 provides for a three-month cessation of evictions and rent increases, but this time frame can be extended by the Government if it considers it in the public interest. The Oireachtas can annul any such extension within 21 days.

“The Emergency”

Ireland is no stranger to the introduction of emergency legislation and it was almost this time last year that the Omnibus Bill was prepared to be fast-tracked through the Oireachtas to support businesses and jobs impacted by a no-deal Brexit, and to maintain essential services and products across the Irish border.

Comparisons can be drawn between the current situation, and that of the state of emergency which existed in Ireland during the Second World War. During ‘the Emergency’, the Oireachtas passed the Emergency Powers Act 1939 and Offences Against the State Act 1939. These Acts vested the Government with wide-ranging powers, including authority to issue regulations to control private property and economic activity, impose censorship, establish military courts with power to issue the death penalty, and establish internment without trial by Government order. In more recent times, the Oireachtas passed several pieces of legislation giving the Government extraordinary authority to tackle the financial crisis of the late 2000s.

Lawless -v- Ireland[i]

This case was filed by an ex-IRA member who had been arrested and detained under the special powers of indefinite detention without trial under the Offences against the States (Amendment) Act 1940. Lawless claimed that the Irish Government was in violation of Articled 5, 6 and 7 of the European Convention of Human Rights. The case was dismissed because emergency legislation was used[ii].

The Constitution

Under Article 15 of the Constitution of Ireland, the Oireachtas must not enact a law which is incompatible with the Constitution. Therefore, Legislation passed by the Oireachtas for the purpose of tackling a very serious emergency, will not be immune from legal challenge by a plaintiff on the grounds it is unconstitutional.

However, to challenge the constitutionality of legislation, you must show that you have sufficient interest in the proceedings, that is, that the legislation affects you in some real way. You must also show that you have an arguable case, that is, that your case has grounds.

Article 28 of Constitution of Ireland which allows emergency legislation “for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion”. There is no military aspect to this, however, Article 24 is likely to provide the required justification for this. This Article allows for emergency legislation “by reason of the existence of a public emergency, whether domestic or international”.

A good recent example of how judges respond to challenges to emergency legislation can be seen through their treatment of legislation passed to tackle the financial crisis. As these laws were not passed through reliance on Article 28.3.3[iii], challenges were brought challenging their constitutionality.

But in case after case, the Courts upheld their constitutionality, and when doing so made frequent references to the dire circumstances the country found itself in, and the leeway they had to give the Oireachtas when tackling emergencies, even if its response had a significant impact on individual property rights. In such circumstances, the Courts said they would give a wide margin to the Oireachtas in deciding what measures were necessary and proportionate to respond to a crisis.

In Horgan v Ireland (2003)[iv] the Dáil was asked whether an aircraft refuelling at Shannon Airport en route to Iraq was deemed participation in war. Here the Court extended a significant margin of appreciation to the Government in this area. Essentially the Court must presume that a decision had been made by the Dail that this was not participation in war.

Remedies under the Human Rights Convention

Article 15(1) of the European Convention on Human Rights (“the Convention”) stipulates that:

“In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.”

In March 2020, in the context of the COVID-19 health crisis, Latvia, Romania, Armenia, the Republic of Moldova, Estonia and Georgia notified the Secretary General of the Council of Europe of their decision to use Article 15 of the Convention. To date, eight other States who are parties to the Convention– Albania, Armenia, France, Georgia, Greece, Ireland, Turkey and the United Kingdom – have relied on their right of derogation. Four of those States have had to justify the measures taken, in the light of Convention requirements, namely Greece, Ireland, the United Kingdom and Turkey[v].

It is an undeniable fact of life that many States will, at some stage, be confronted with serious crisis situations, such as wars or other kinds of serious societal upheavals, and that in such situations they may consider it necessary, in order to restore peace and order, to limit the enjoyment of individual rights and freedoms and possibly even to suspend their enjoyment altogether. The result may be disastrous not only for the persons affected by the restrictions but also for peace and justice in general[vi].

It seems that in circumstances of national emergency governments are permitted to deviate from international human rights treaties in certain scenarios. However, States cannot derogate from the following articles of the Convention:

  • Article 2- the right to life;
  • Article 3- the right to freedom from torture and from inhuman or degrading treatment or punishment;
  • Article 4(1) – the right to freedom from slavery and servitude;
  • Article 7- the right not to be subjected to retroactive penal legislation;
  • Article 3 of Protocol No. 6- the right not to be subjected to the death penalty;
  • Article 4 of Protocol No. 7- the principle of ne bis in idem or double jeopardy.

 

What we can do for you

In these unprecedented times, it is important to know your rights. Notwithstanding that the courts in previous cases have given the Oireachtas a wider margin during emergency periods in striking the balance between the common good and individual rights. We are here to help if you feel that the emergency COVID-19 legislation is unreasonably affecting on your rights.


AUTHOR: Anna Hollywood, Trainee Solicitor

This Briefing Note is not intended as legal advice. For specific queries, please liaise with your usual contact in Kane Tuohy or with Hugh Kane (hkane@kanetuohy.ie / 087-9726164)

 

[i] Case of Lawless v Ireland

[ii] http://www.nuigalway.ie/irish-centre-human-rights/publicpolicyengagement/completedprojects/irelandparticipationininternationalhumanrightslawandinstitutions/

[iii]  Nothing in this Constitution other than Article 15.5.2° shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion, or to nullify any act done or purporting to be done in time of war or armed rebellion in pursuance of any such law. In this subsection “time of war” includes a time when there is taking place an armed conflict in which the State is not a participant but in respect of which each of the Houses of the Oireachtas shall have resolved that, arising out of such armed conflict, a national emergency exists affecting the vital interests of the State and “time of war or armed rebellion” includes such time after the termination of any war, or of any such armed conflict as aforesaid, or of an armed rebellion, as may elapse until each of the Houses of the Oireachtas shall have resolved that the national emergency occasioned by such war, armed conflict, or armed rebellion has ceased to exist.

[iv] Horgan v Ireland [2003] 2 IR 468

[v] https://www.echr.coe.int/Documents/FS_Derogation_ENG.pdf

[vi] https://www.ohchr.org/Documents/Publications/training9chapter16en.pdf

 

Force Majeure

In light of the rapidly increasing number of Covid-19 cases worldwide, many businesses are facing interruptions to their business, for example, businesses’ suppliers are unable to fulfil their contractual obligations due to countries being placed on lockdown, meetings/events are being cancelled and businesses are being forced to close for an indeterminate period of time.

In such circumstances, businesses may naively believe that they will be covered by their insurance for such business interruptions on the basis that Covid-19 is a “force majeure” event. However, you may want to think again!

Force majeure may be defined as “an event or effect that cannot be reasonably anticipated or controlled”[1].  In other words, it is an event that a person may not have foreseen.

Although businesses may not have anticipated a scenario like the Covid-19 pandemic, many insurance policies will have foreseen such a pandemic, particularly where there have been previous flu epidemics – albeit not to the scale of the Covid-19 pandemic.

Insurance policies may exclude and/or limit liability for such events, to include any direct or indirect losses caused to the business as a result of business interruptions.

However, some insurance policies provide for pandemic/epidemic coverage and businesses may be able to recover some and/or all of their losses incurred as a result of business interruptions, if they are covered for such scenarios.

We would advise all businesses to have their insurance policies reviewed at this time to establish what they are covered for and what they are not covered for, particularly where businesses may be able to recoup some and/or all of their losses by claiming through their insurance.

If you would like to find out more about how we can help you during the Covid-19 crisis, please contact us.

Kane Tuohy LLP,

 

This Briefing Note is not intended as legal advice. For specific queries, please liaise with your usual contact in Kane Tuohy or with Hugh Kane (hkane@kanetuohy.ie / 087-9726164)

 

[1] https://www.merriam-webster.com/dictionary/force%20majeure

Covid-19 – Briefing Note on OMC AGMS and Service Charges

Briefing Note on OMC AGMS and Service Charges – Challenges Presented by Covid-19

The Covid 19 pandemic touches society in many ways. No group or activity escapes its effects. The purpose of this briefing note is to explore one particular issue of practical importance which is affected by the present crisis namely, service charges and how an OMC can protect its source of funds for the benefit of its membership generally.

Issues arise not only by complications arising from AGMs not proceeding but the implications for service charges generally and their recovery to enable the continuing provision of much needed services in particular.

AGM

An AGM must be held once in each year and not more than 15 months may elapse between two AGMs. Financial statements and reports must be presented at the AGM, not later than 9 months after the OMC’s financial year end.

Business cannot be transacted at an AGM unless a quorum of members is present in person at the venue specified in the notice. Unless the company’s constitution states otherwise, the quorum required is two members present in person or by proxy.

An OMC’s constitution should always be checked to ascertain the relevant quorum for that OMC.

Notice of AGM- to give or not to give

Where notice has already issued convening a general meeting of the OMC, it cannot unilaterally postpone that meeting, in the absence of an express power to do so under its constitution.

While a general meeting can be adjourned, generally the power to do so is vested in the Chairperson of the meeting and is invariably exercised where there is an insufficient quorum but can with the consent of the members be adjourned (again subject to the constitution).

Accordingly, where a convened general meeting cannot proceed because of the Covid 19 crisis, the directors should communicate with the members in advance, outline their intentions concerning an adjournment and the (obvious) reasons why, namely public health, notify the members of an intention to adjourn the meeting immediately upon its opening, do so and notify the members of the adjourned date.

Where notice has not yet been given, the holding of the general meeting can be delayed, bearing in mind the time constraints outlined at the start of this note.

Service Charges

If the AGM is delayed, what implications will this have for service charges?

Section 18 of the Multi Unit Developments Act 2011 (“the MUDS Act”) provides that the annual service charge in respect of a multi-unit development relating to a particular period shall not be levied unless it has been considered by a general meeting of the members concerned.

Section 18(4)(b) provides that where the service charge proposed to the general meeting is disapproved by not less than 75 per cent of the persons present and voting, the proposed service charge shall not take effect but the charge applying to the previous period shall continue to apply pending the adoption of a service charge in respect of the period concerned.

Section 18(5) provides that where the proposed service charge is disapproved and no service charge applied in the previous period, the directors of the OMC may determine a scheme to operate for a period of four months from the date of the meeting, and such charges may be levied and recovered as if such scheme had been approved by the members.

In view of the wording used, there are certain minimum steps that must unfold for the statutory scheme regulating service charges to come into being: –

  • The annual charge must have been considered; to be considered, the general meeting must have been convened and proceeded. If the general meeting cannot proceed because of the current crisis, it follows the service charge has not been considered;
  • If considered, it must be disapproved by 75% or more of those attending and voting and, in that event, the preceding year’s service charge applies;
  • If disapproved and where there was no previous service charge, the directors can set one for four months;
  • The proposed service charge must therefore be expressly “disapproved” in order for the service charge relating to the previous period to apply or for the directors to determine a scheme which would operate for four months;
  • In order for it to be “disapproved”, members need to vote at the meeting;
  • Members cannot vote if the meeting does not convene or is adjourned.

Accordingly, absent approval or disapproval (which obviously requires a vote) the statutory scheme envisaged by the MUDs Act cannot be invoked. This means the OMC has no statutory entitlement to levy a service charge based on the charges which applied in the previous period. If it did there would be a question mark over their validity and hence over their lawful enforcement, based on a statutory claim (see further).

The predicament for the OMC is obvious; it cannot charge based on its budget as it has not been approved because no vote has taken place but equally it cannot base its charge on the previous year’s budget as no vote (disapproving the intended charge) has taken place.

Alternative Grounds; the Scheme of the Development

Practically speaking, this makes no sense, but only if considered solely in a statutory framework. While the MUDs Act creates a helpful statutory framework, importantly it does not (nor could it) dispense with the pre-existing and continuing (alongside the statutory framework) scheme of the development (“the Scheme”).

The Scheme is the legal framework created by the Scheme documents, typically the Lease, the Management Company Agreement (i.e. the agreement to transfer the common areas) and the Deed of Transfer of the common areas. These documents, in particular the Lease, not only create an interest in property but as importantly create mutually binding covenants on the part of the owner and the OMC. In summary, the unit owner covenants to pay service charges and the OMC covenants to provide management services.

It is for this reason namely, there being both a statutory framework and the Scheme, that it is prudent when pursuing arrears of service charges that the legal claim is framed by reference to both.

For present purposes, this dual entitlement gives an OMC some comfort that if being unable to raise service charges demands based on a statutory entitlement as no vote has taken place, the OMC is still entitled to raise service charge demands based on the Scheme and to rely on the Scheme if forced to pursue such charges through the court process.

It is also open to an OMC to pursue arrears (which lack a statutory framework or in rare cases where the Scheme is not applicable to the unit owner in question) based on a claim in “quantum meruit” ie a claim for the value of the services supplied. While more involved in terms of the proofs which must be produced in court, it offers a “braces and belt” approach where an OMC may be understandably concerned for the underlying validity of its charges in these uncertain times.

Summary

  • If the OMC cannot consider (and hence vote) on the service charge budget, continue to invoice on the basis of the preceding year’s budget;
  • Given the consequent question mark over its statutory basis, when raising demands, refer to the scheme of the development in your demands;
  • If challenged by an owner, explain the OMC’s entitlements under the Scheme;
  • If unpaid by the owner and the OMC is obliged to issue court proceedings, ensure the claim is drafted to include alternative claims under the statutory framework created by the MUDs Act, the Scheme of the development and in quantum meruit.

 

Kane Tuohy LLP,

This Briefing Note is not intended as legal advice. For specific queries, please liaise with your usual contact in Kane Tuohy or with Cómhnall Tuohy (ctuohy@kanetuohy.ie / 087 2194782)

 

James Latham acquisition of Abbey Wood Agencies Ltd

James Latham acquisition of Abbey Wood Agencies Ltd

James Latham acquisition of Abbey Wood Agencies Ltd


SARAH REYNOLDS, PARTNER COMMERCIAL LAW

 

Sarah Reynolds of Kane Tuohy acted for James Latham Plc. in its recent acquisition of Abbey Wood Agencies Limited (“Abbey Woods”).

James Latham Plc. is based in the UK and is a leading importer and distributor of wood based panel products, natural acrylic stone, door blanks, hardwoods, high grade softwoods, cladding, decking and plastics.

Abbey Woods is a leading timber merchant company in Ireland with depots in Dublin and Cork.

This is the first acquisition by James Latham Plc. outside of the UK since its inception over 200 years ago.

VIEW SARAH’S PROFILE

 

 


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New Commercial Court Practice Direction

New Commercial Court Practice Direction

New Commercial Court Practice Direction –

Data collection undertaking


02/05/2019

A new Commercial Court Practice Direction was introduced on 12 April 2019.

A new Commercial Court practice direction – Practice Direction HC85 – Commercial list (PD HC 85) replaces Practice Direction HC50 of May, 2009. While PD HC85 reiterates the provisions of its predecessor, it adds a new requirement for solicitors, which is designed to assist the Court in data collection. In addition to the usual undertaking to use his/her best endeavours to ensure that the court’s directions will be complied with in full, the solicitor is required to undertake:

“that within 14 days of the conclusion of the case in the High Court, whether by agreement, discontinuance, strike out, dismiss or other court order, and whether before or after entry to the Commercial List, such solicitor will use his/her best endeavours to submit by electronic means to the Courts Service at commercialdata@courts.ie a Case Report in the format published in the High Court section on the Courts Service website www.courts.ie on the date of publication of this Practice Direction.”

The “Case Report” is in the form of an excel sheet. This includes an Explanatory Memorandum. The data sought is:

  • Commercial Court Case ID
  • Party seeking entry
  • Type of matter
  • Type of issuing proceedings
  • Value of Claim
  • Origin of Parties
  • Interim Motions
  • Date of fixing of trial hearing date
  • Trial date
  • Anticipated trial duration
  • Actual trial duration
  • Hearing end date
  • Date of judgment
  • Outcome
  • Costs
  • Follow-up
  • Enforcement action
  • Appeal lodged

Separate information is also sought for interim motions.

The Solicitor’s certificate seeking entry into the commercial list should also state the section(s) of O.63A r.(1) RSC under which the application is being made.

Source: The Law Society of Ireland


 

A BREACH OF GDPR – THE CONSEQUENCES

A BREACH OF GDPR – THE CONSEQUENCES

A BREACH OF GDPR –
THE CONSEQUENCES

“He’s making a list, He’s checking it twice,
He’s gonna find out who’s naughty or nice,
Santa Claus is in contravention of the
General Data Protection Regulation (EU) 2016/679”

A collective sigh of relief was exhaled when the General Data Protection Regulation (“the GDPR”) came into force on 25th May last. However, for those impacted by the GDPR the challenge is only beginning, and 25th May 2018 only marked the start of GDPR compliance not the finish! Even the most benevolent of operators, such as Santa Claus, cannot escape the clutches of the GDPR.

Organisations are now operating in a new landscape of data control and management where the “new norm” requires a heightened awareness both amongst senior management and employees of their GDPR obligations with the implementation of stringent controls to appropriately process and manage personal data.

By now, organisations should be familiar with their GDPR obligations and should have implemented appropriate processes and procedures to comply with those obligations and ensure the appropriate management of personal data.
However, this is not the time for organisations to put their feet up and survey a “job well done” on implementing GDPR processes and controls. Vigilance and ongoing monitoring are critical to building a culture of understanding of, and compliance with, the GDPR.
Although the most stringent security measures can be put in place to prevent data protection breaches, human error can circumvent the best in class processes and is the main cause of data breaches in organisations, and the most difficult to prevent.
The consequences of failure to comply can be significant from both a reputational and financial perspective which can include the imposition of significant fines by the Data Protection Commission (“DPC”) and organisations may also be exposed to civil actions by data subjects.

Fines

  • The DPC has significant powers to ensure compliance with the GDPR and take enforcement action as required.
  • The DPC can impose fines on organisations for non-compliance up to €20 million or 4% of the total worldwide annual turnover of the controller or processor in the preceding financial year (whichever is higher).
  • The higher tier of fines may be imposed for infringements of obligations relating to the core data protection principles such as transparency and accountability, the processing of sensitive personal data and breaches of data subjects’ rights.
  • The lower tier of fines (up to the higher of €10 million or 2% of the total worldwide annual turnover of the controller or processor in the preceding financial year) may be imposed for infringements of obligations relating to obtaining a child’s consent, to the communication of a personal data breach to the supervisory authority or the data subject or to the designation, position and tasks of the data protection officers.

Article 83 of the GDPR sets out what the DPC must consider before imposing a fine which includes: –

1. Nature and type of infringement: Consider the number of people affected, the damage they have suffered, duration of infringement, and purpose of processing;
2. Intention Was the infringement intentional or negligent
3. Mitigating factors What actions have been taken to mitigate damage to data subjects
4. Preventative measures How much technical and organisational measures the organisation had previously implemented to prevent the non-compliance
5. Categories of personal data What types of data the infringement impacts (e.g. special categories of personal data)

The Court must approve the quantum of any fines and the affected organisations have the entitlement to appeal the imposition of fines by the DPC.

Since the 25th May 2018 (and as at 16th November 2018) the DPC has logged 3,111 data breach notifications. Of these, the GDPR applied in 2,734. The DPC has also logged 2,168 complaints, of which the GDPR applied in 1,321 cases. The DPC has received complaints and breach notifications that relate to issues that occurred both post and pre-GDPR (25th May) and the pre-GDPR cases are dealt with under the old Data Protection legislation.

On average, approximately 230 data breaches and 220 complaints were received per month last year (2017) and the increased figures since 25th May 2018 are indicative of the greater awareness and focus of organisations on their GDPR obligations.
We have yet to see how the DPC will exercise its powers and the parameters of any fines that issue but it is only a matter of time before we see the imposition of the first fines in Ireland for breaches of the GDPR.

The Data Protection Commissioner, Helen Dixon, speaking at the recent PDP Data Protection Conference in Dublin noted that the volume of complaints has been high since the GDPR came into effect and the DPC will prioritise the more important cases affecting the largest number of data subjects. To assist in the carrying out their statutory duties, staff in the DPC (which is currently at 117), is due to increase to 130 by the end of 2018.

As a sign of what may come to pass in this jurisdiction the Portuguese Data Protection Authority has issued two separate fines totalling €400,000 on a Portuguese hospital in July last for two breaches of the GDPR which related to the unauthorised access to patients’ clinical data. The first fine of €300,000 was issued for failing to respect patient confidentiality and limit access to patient data, and the second was issued for failing to ensure the confidentiality, integrity, availability and permanent resilience of treatment systems and services, was for €100,000.

Civil action

An impacted data subject can also take a civil claim for damages against an organisation (being either a data controller or processor) under Section 128 of the Data Protection Act 2018 without lodging a complaint with the DPC although it is likely that, in most cases, an aggrieved data subject will lodge a complaint in parallel to taking any civil action and will await the outcome of the DPC investigation prior to progressing any civil action.

Recently, more than 5,000 employees of Morrisons UK Supermarket claimed damages against their employer, including an allegation of breach of statutory duty under the UK Data Protection Act 1998 which predated GDPR implementation. This related to the malicious sharing (from his personal PC) by a disgruntled Morrisons’ employee of personal financial data of approximately 100,000 employees of Morrisons.

The UK High Court held that there was a sufficient connection between the position held by the disgruntled employee and his wrongful act as to make Morrisons vicariously liable. The Court of Appeal upheld the High Court’s decision.

This decision, although of persuasive authority only in this jurisdiction, will be of concern to employers where they may now find themselves liable for the wrongful actions of their employees and face liability from affected data subjects as a result of the malicious actions of their employees, even where the organisation is compliant with data protection laws

Corrective action and criminal prosecution

The DPC may direct corrective action under Article 58 of the GDPR requiring a non- compliant organisation, for example, to cease processing personal data, to comply with a data access request, and/or bring processing activities into compliance in a specified manner and within a specified time frame.

A non-compliant organisation (and a director, manager, secretary or other officer of that organisation) may also be convicted on indictment to a period of up to five years imprisonment (in addition to a fine) for failure to comply with the GPDR.

Conclusion

It is important for organisations to realise that 25th May 2018 represents the start of their GDPR obligations and not the end. Organisations should ensure that they regularly review their GDPR compliance processes to protect themselves against the reputational and financial risks of non-compliance, where even the best processes and controls can be impacted by human error. Organisations should put appropriate insurance is in place, where possible, to cover liability as well as implementing strong data security and protection measures and ensure appropriate staff training to protect themselves against such actions.
By taking the steps now to understand, evaluate and address current and future GDPR obligations, organisations will be best placed to deal with the various challenges that can come with the broad international scope of the GDPR.

PS: Of course, if Santa has the Data Subjects’ consent for his list, Christmas might be saved!

For further information on any of the issues raised in this article please contact

Sarah Reynolds  

Associate in Data Protection & Commercial Litigation,
Kane Tuohy Solicitors
Phone: 01-6722233
Email: sreynolds@kanetuohy.ie

Overview of The Mediation Act 2017

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A Brief Summary to the Planning and Development (Amendment) (No. 2) Regulations 2018 (S.I. No. 30 of 2018)

A Brief Summary to the Planning and Development (Amendment) (No. 2) Regulations 2018 (S.I. No. 30 of 2018)

A Brief Summary to the Planning and Development (Amendment) (No. 2) Regulations 2018 (S.I. No. 30 of 2018)

The Aim of the Regulations

The aim of the Planning and Development (Amendment) (No. 2) Regulations 2018 (S.I. No. 30 of 2018) (the “Regulations”) is to facilitate the re-use of existing and vacant commercial buildings for residential purposes by providing an exemption for the change of use, and any related works, of certain vacant commercial premises to residential use, without the need to obtain planning permission.

They form part of the Government’s action plan to increase much needed housing supply, maximise the use of vacant underutilised spaces and assist in the rejuvenation of inner-core urban areas.

When the Exemption applies

The exemption applies to existing buildings that have a current commercial use with reference to Classes 1, 2, 3, and 6 of Part 4 to Schedule 2 of the Planning and Development Regulations 2001 (S.I. No. 600 of 2001) (referred to in the Regulations as the “Principal Regulations”), the definition of which Classes are set out below:

  • Class 1: Use as a shop.
  • Class 2: Use for the provision of (a) financial services, (b) professional services (other than health or medical services), (c) any other services (including use as a betting office), where the services are provided principally to visiting members of the public.
  • Class 3: Use as an office, other than a use to which class 2 of this Part of this Schedule applies.
  • Class 6: Use as a residential club, a guest house or a hostel (other than a hostel where care is provided).

Limitations

There are certain limitations on the nature and type of buildings that may benefit from the exemption, as follows:

  • The building must have been completed prior to the making of the Regulations (on 8 February 2018);
  • The building must have been used for one of the 4 classes of use referred to above at some time in the past;
  • The structure or part of the structure which is to be developed must have been vacant for 2 years or more immediately prior to the commencement of the development.

The change of use, and any related works, must occur between 8 February 2018 and 31 December 2021, so while the exempted development permitted is permanent in nature once the criteria are satisfied, the exemption can only be availed of during this period.

A number of other conditions and limitations apply, relating to works, the detail of which are set out more particularly at section 2 (Sub-Article (6)(d)) of the Regulations in the link below.

Notifying the Planning Authority

A developer must notify the Planning Authority in writing of the details of the development at least two weeks prior to the commencement of the proposed change of use and related works, and the notification shall include information on the location and number of residential units involved, including the unit sizes and number of bedrooms in each unit.

Compliance with the Building Regulations 1997 to 2017 must still be achieved, and Building Control procedures will still apply.

RELEVANT LINKS


See relevant links below:

1. Planning and Development (Amendment) (No. 2) Regulations 2018 (S.I. No. 30 of 2018) 

2. Circular Letter PL 01/2018 issued by the Department of Housing, Planning and Local Government, on the Planning and Development (Amendment) (No. 2) Regulations 2018

 

 

 

Vicky Pigot – Senior Associate

5 June 2018

Repayment of Stamp Duty where land used for Residential Development

Repayment of Stamp Duty where land used for Residential Development

Section 83D of the Stamp Duties Consolidation Act 1999 as inserted by Section 61 of the Finance Act 2017


Repayment of Stamp Duty where land used for Residential Development

Introduction

The Finance Act 2017 introduced a mechanism for repayment of stamp duty paid on land where that land is subsequently used for residential development, such that if the maximum amount of stamp duty is repaid under the mechanism, the effective rate of stamp duty ultimately payable would be 2%.

Repayment of Stamp Duty – criteria

Stamp Duty paid on instruments executed on or after 11 October 2017 that relate to the transfer of non-residential property and on which 6% stamp duty liability was paid, may be repaid by the Revenue Commissioners up to a maximum of two-thirds of such stamp duty paid,  if construction operations of one or more dwelling units on the land commence on or before 31 December 2021 and pursuant to a commencement notice within the period of 30 months following the date of execution of the deed.

Clawback provisions

The section contains clawback provisions and any repayment of stamp duty will be clawed back if:

  • the residential development is not completed within the period of 2 years of issuance by the relevant building control authority of their acknowledgment of the commencement notice; or
  • when the development is completed: (i) at least 75% of the total surface area of the land is not occupied by dwelling units; or (ii) the gross floor space of dwelling units on such land does not amount to at least 75% of the total surface area of that land.

The Repayment

The amount to be repaid is determined by the formula A x B x 2/3 where:

A = the amount of stamp duty paid (at the rate of 6%); and

B = the proportion of the area of the land on which residential development occurred,

      expressed as a fraction.

Documentary evidence in relation to repayment of stamp duty

To satisfy themselves that either the conditions for the making of a repayment, or the conditions for the avoidance of a claw-back, are satisfied, the Revenue Commissioners may specify documents and particulars be submitted, to include the following:

  • copy of any commencement notice
  • copy of any acknowledgment sent by the Building Control Authority
  • copy of any planning permission granted
  • the number and gross floor space of dwelling units constructed
  • the area of the land expressed in hectares.

All relevant documentation should be retained by the claimant for six years, as same may be requested by Revenue to evidence the legitimacy of any such claim.

Making a Repayment Claim

Once construction operations have commenced pursuant to a commencement notice acknowledged by the Building Control Authority, a claim for a repayment can be made by an accountable person by electronic means (in a form and manner yet to be specified by Revenue) and should include a statutory declaration stating that construction operations of one or more dwelling units on the land commenced pursuant to a commencement notice within the period of 30 months following the date of execution of the deed, and (where a claim relates to a part of the stamp duty paid) the proportion of the area of the land represented thereby. Note that a repayment does not carry interest (although interest shall be repayable on a clawback) and cannot be made after the expiry of 4 years following the date of acknowledgment by a Building Control Authority (notwithstanding the development might be carried out in phases).

Appeal

If Revenue refuses the repayment they shall notify the claimant in writing of the decision and the reasons for it, who may appeal to the Appeal Commissioners within 30 days of receipt of any such notice.

Single-unit developments and multi-phased developments

While the above relates to multi-unit single phased developments, Section 83D of the Stamp Duties Consolidation Act 1999

also applies to single-unit developments and multi-phased developments with the conditions set out above modified accordingly.


Author: Vicky Pigot

12 April 2018

Overview of The Mediation Act 2017

Overview of The Mediation Act 2017

Overview of the Mediation Act 2017 (“the Act”)

The Purpose of the Act


The key policy objectives of the Mediation Act 2017 (“the Act”) are to promote increased awareness and use of a particular alternative dispute resolution (“ADR”) mechanism known as mediation. This mechanism can be used even if proceedings have been issued and the Act has been designed so that mediation will co-exist alongside the court system.

What is Mediation?


The Act defines mediation as a confidential, facilitative and voluntary process in which parties to a dispute, with the assistance of a mediator, attempt to reach a mutually acceptable agreement to resolve a dispute. Certain types of disputes have been excluded for example arbitration, disputes which fall under the function of the Workplace Relations Commission and judicial review.

Key Principles of Mediation


Facilitative

There are a number of different forms of mediation; for example facilitative, evaluative, narrative or transformative mediation.

However, it appears from the definition of mediation in the Act that the legislature has adopted the traditional form of mediation known as facilitative in which the mediator is a neutral intervener who offers minimal assistance.

This is reinforced by section 6(9) which provides that it is for the parties to determine the outcome of the mediation. Therefore, the Mediator will facilitate communications between the parties, but full responsibility will lie with the parties to achieve a resolution.

One exception is set out in section 8(4) which provides that the mediator may, at the request of all the parties, make proposals to resolve the dispute, but it shall be for the parties to determine whether to accept such proposals. This provision may perhaps be used where the parties have reached an impasse but are still committed to reaching a resolution.

Confidential

Both the definition of mediation and section 10 of the Act provides that the mediation process is confidential. In particular, section 10(1) of the Act provides that all communications (including oral statements) and all records and notes relating to the mediation shall be confidential and shall not be disclosed in any proceedings before a Court or otherwise. There are of course exceptions to this namely:

A. Exception under section 10(2)

  • In order to implement or enforce a mediation settlement,
  • To prevent physical or psychological injury to a party,
  • Is required by law,
  • Is necessary in the interest of preventing or revealing the commission of a crime, the concealment of a crime, a threat to a party, or
  • Is sought or offered to prove or disprove a civil claim concerning the negligence or misconduct of the mediator occurring during the mediation or a complaint to a professional body concerning such negligence or misconduct.

B. Exception under section 10(3)

Evidence introduced into or used in mediation that is otherwise admissible or subject to discovery in proceedings shall not be or become inadmissible or protected by privilege in such proceedings solely because it was introduced into or used in the mediation.

C. Exception where Court has invited parties to consider using mediation

In circumstance where a mediation did take place after an invitation from the Court under section 16 (see below) but an application to re-enter the proceedings was subsequently made, the Mediator is required to prepare a report setting out whether or not a settlement was reached and, if one was reached, a statement as to the terms of the mediation settlement. It appears that this report and the terms of settlement may not enjoy the protection of confidentiality.

D. Exception where the Court is deciding to award costs of proceedings following an unreasonable refusal by a party to consider using mediation following an invitation under section 16 of the Act.

3.  Voluntary

Mediation is a voluntary process in that the parties must voluntarily agree to participate in the process. They must also choose voluntarily to continue participating in the process, for example section 6(4)(A) provides that a party may withdraw from the mediation at any time during the mediation. A person can be accompanied to a mediation by a person including a legal advisor who is not a party to the dispute.

Any settlement reached must be agreed voluntarily between the parties. The Mediator or an opposing party cannot impose a solution or settlement terms on the other party.

4. Enforceability of Agreement

Pursuant to section 11(1) of the Act, the parties shall determine if and when a settlement has been reached and whether that settlement is to be enforceable. However, section 11(2) provides that notwithstanding subsection 1 a settlement shall have effect as a contract between the parties to a settlement except where expressly stated that it shall have no legal force until it is incorporated into a formal legal agreement or contract to be signed by the parties.

Section 11(3) provides that a court may on application of one or more parties to a mediation settlement, enforce its terms except where the court is satisfied that the mediation settlement:

  1. Does not adequately protect the rights and entitlements of the parties or their dependants (if any),
  2. Is not based on full and mutual disclosure of assets,
  3. Is otherwise contrary to public policy
  4. A party to the mediation settlement has been over borne or unduly influenced by any other party in reaching the mediation settlement.

The Mediator


It is up to the parties to select a mediator. In terms of regulation of the profession, the Act has adopted a “light-touch” approach. Pursuant to section 9 of the Act the Minister shall, as soon as is practicable after the coming into operation of the Act, prepare and publish a code of practice or approve a code of practice prepared by a person other than the Minister which sets standards for the conduct of mediations. Pursuant to section 12(1), the Minister can declare that the body specified in the said order shall be recognised and known as the Mediation Council of Ireland. The Act does however place certain requirements on the mediator namely:

  1. Conflict of Interest before mediation – Section 8(1)(a)(i) provides that the mediator must carry out enquiries as to actual or potential conflicts of interest prior to the commencement of the mediation. If a conflict comes to their attention prior to the mediation commencing, then they cannot act as a mediator.
  2. Details of qualifications – Section 8(1)(b) provides that prior to commencement of mediation, the mediator must furnish the parties with details of their qualifications, training, experience, CPD training and further furnish to the parties a copy of any code of practice published or approved in accordance with the Act which they subscribe.
  3. Conflict of interest arising during a mediation – Section 8(2)(a) provides that if during the course of the mediation, the mediator becomes aware or ought reasonably to be aware of an actual or potential conflict of interest, then the mediator must declare same. The mediator must cease to act unless the parties agree to them continuing to act as the mediator.
  4. Treatment of parties – Section 8(2)(b) provides that the mediator must act with impartiality and integrity and treat the parties fairly.
  5. Legal advice for parties – Section 8(2)(d) provides that the mediator must ensure the parties are aware of their rights to each obtain independent advice (including legal advice) prior to signing any mediation settlement.
  6. Length and speed of the mediation – Pursuant to section 6(5) of the Act, the mediator together with the parties is required (having regard to the nature of the dispute) to make ever reasonable effort to conclude the mediation in an expeditious manner which is likely to minimise costs.
  7. Charging of fees – Section 20(2) provides that the fees and costs of the mediation shall be reasonable and proportionate to the importance and complexity of the issues at stake and to the amount of work carried out by the mediator. It should also be noted that section 6(10) provides that the fees and costs of the mediation shall not be contingent on its outcome. Pursuant to section 20, unless ordered by the court or agreed between the parties, the parties shall pay to the mediator the fees and costs agreed in the agreement to mediate or share equally the fees and costs.
  8. Withdrawal from mediation – Pursuant to section 6(6), the mediator may withdraw from the mediation at any time by notice in writing to the parties.
  9. Negligence – In respect of negligence on the part of the mediator, section 10(2)(e) contemplates the potential for redress against a mediator by way of civil claims and/or complaints to professional bodies.

The Agreement to Mediate


The parties must enter into an agreement to mediate prior to the commencement of the mediation. Section 7 provides that the parties and proposed mediator shall prepare and sign an agreement to mediate which appoints the proposed mediator and contains the following information:

  1. The manner in which the mediation is to be conducted,
  2. The manner in which the fees and costs of the mediation will be paid,
  3. The place and time at which the mediation is to be conducted,
  4. The fact that the mediation is to be conducted in a confidential manner,
  5. The right of each of the parties to seek legal advice,
  6. The manner in which the mediation may be terminated (subject to section 6(6) which allows the mediator to withdraw at any time by notice in writing stating the reasons for withdrawal),
  7. Such other terms as may be agreed between the parties and mediator.

Statute of Limitations


Section 10 of the Act provides that the period beginning on the day on which an agreement to mediate is signed and ending on the day which is 30 days after (a) the mediation settlement is signed by the parties and mediator or (b) the mediation is terminated, whichever first occurs, shall be disregarded for the purpose of the Statute of Limitations.

It should be noted that the time spent obtaining the other sides agreement to mediate and approving and engaging a mediator is not counted. As these stages can take time, the parties should be careful that the limitation period does not expire (or that the other side is delaying matters so that the matter becomes statute barred).

Solicitors’ Obligations


Part 3, section 14 of the Act sets out Solicitors’ obligations. From the 1st of January 2018 (being the date of commencement) a Solicitor shall, prior to issuing proceedings on behalf of a client, advise the client of the following:

  1. Consider using mediation as a means of attempting to resolve the dispute,
  2. Provide the client with information in respect of mediation services, including names and addresses,
  3. Provide information about the advantages of resolving the dispute otherwise then by way of the proposed legal proceedings,
  4. Advise the client of the benefits of mediation including that it is voluntary (but may not be appropriate where the safety of a child is at risk), confidential and that the mediation settlement can be enforceable if the parties agree.

Court Intervention


A.  Inviting parties to mediate – Pursuant to section 16 of the Act, the Court may on application of a party or of its own motion invite the parties to consider mediation and provide the parties with information about the benefits of mediation. An application by a party requesting the court to invite the parties to use mediation must be made no later than 14 days by motion on notice before the date on which the proceedings are first listed for hearing, unless the court orders otherwise.

If the parties decide to engage in mediation following the invitation, then the Court may adjourn the proceedings, make an order extending time for compliance by a party with the rules of the court or make such order or direction as it considers necessary to facilitate the use of mediation.

The existing Order 56A rule 2 of the Rules of the Superior Courts have been amended in accordance with the Act and provides that the Court may issue an invitation to consider mediation mentioned in section 16(1) of the 2017 Act of its own motion in any civil proceedings to which the  Act applies, on any occasion on which such proceedings are before the Court. Furthermore, where following an invitation by the Court the parties decide to engage in mediation, the Court may having heard the parties, make such orders in accordance with section 16(2) of the 2017 Act as it considers appropriate.

Given that Order 56, rule 2 triggers Order 99, rule 1B in respect of costs (see below), the Court of Appeal’s decision in Atlantic Shellfish Limited and Ors v the County Council of the County of Cork & Ors [2015] IECA 283 should be considered when assessing whether an application pursuant to section 16 is appropriate. It should be noted however that the judgment was given before Order 56A rule 2 was amended following the commencement of the Act, however the wording of the rule was relatively similar.

Case Study


Background – The first named Plaintiff operated an oyster fishery and the second named Defendant was a shareholder and director of the first named Plaintiff. The first named Plaintiff had operated its business on foot of certain Oyster Fisheries Orders made in 1963 and 1970 and maintained that from 1988 onwards, the fishery was contaminated by untreated sewage water that had been redirected into Cork Harbour following the grant of a foreshore licence. As a result, the Plaintiffs had issued proceedings in 1992 against Cork County Council and the Minister for the Marine. Those proceedings were settled, and the parties agreed inter alia that a secondary waste water treatment plant would be constructed. The treatment plant was installed, however the oysters continued to be contaminated and a significant number of customers reported becoming ill over the subsequent years. In 2002, the first named Plaintiff was forced to close its fishery permanently.

Proceedings were issued in October 2001 by the Plaintiff in respect of the loss suffered as a result of this closure. In 2014, the Plaintiffs issued a motion seeking an order pursuant to Order 56A, rule 2. The Court refused to exercise its discretion concluding that the purpose underlying the Plaintiffs’ application was artificial and that the real purpose of the application was to seek to “copper fasten its position with regard to a future application for costs”. The Court indicated that it might have taken a different course had it been satisfied that the State Defendants’ reasons for declining mediation could be considered to be other than bona fide or where there was still some reasonable possibility that the invitation, if so ordered, would be accepted.

Issue – The appeal focused upon the circumstances in which a court should exercise its discretion in favour of making an order pursuant to Order 56A, rule 2 inviting the parties to engage in ADR.

Decision – The Court outlined that when dealing with an application pursuant to Order 56A, rule 2, it must consider whether it would be appropriate to exercise its discretion having regard to all of the circumstances of the case.

  1. It must first be satisfied that the issues in dispute between the parties were amenable to the type of ADR proposed.
  2. Assuming that the Court answered the first question in favour of the applicant, then the Court should consider any other relevant circumstances inter alia whether the application was made bona fide and that the applicant was genuinely willing to engage with the proposed ADR rather than one made for the sole purpose of improving the applicant’s negotiating position given that the effect of the order would be to trigger the cost provisions of Order 99 rule 1B (see below).
  3. The Court’s decision may further be influenced by factors such as:

 (i)            the manner in which the parties had conducted the litigation up to the date of the application,

(ii)           the existence of any relevant interlocutory orders,

(iii)          the nature and potential expense of the proposed ADR,

(iv)         the likely effect of the making of the order sought on the progress of the litigation should the invitation be accepted, and the ADR prove unsuccessful,

(v)          the potential saving in time and costs that might result from the acceptance of an invitation,

(vi)         the extent to which ADR can or might potentially narrow the issues between the parties

(vii)        any proposals made by the applicant concerning the issues that might be dealt with in the course of the ADR, and

(viii)       any proposals as to how the costs of such a process might be borne.

Decision – In this particular case, the Plaintiffs’ motion failed to pass the first question.

The dispute was not amenable to mediation as it raised a novel point of law in relation to the grant of the foreshore licence. It was argued that the State owed a duty to any person who may be adversely affected by the operation of that licence such that the State is obliged to police and enforce the licence in order to protect such third parties (i.e. the Plaintiffs).


B. Adjournment of proceedings where agreement to mediate has been entered into – pursuant to section 19, where parties have entered into an agreement to mediate and one of those parties commences proceedings in respect of the dispute, then the other party can apply, after an appearance is entered but before delivering any pleadings or taking any steps in the proceedings, to adjourn the proceedings.

The Court will adjourn the proceedings where it is satisfied that there is insufficient reason why the dispute should not be dealt with in accordance with the agreement to mediate and the applicant at the time when proceedings were commenced was willing (and still remains so) to do all things necessary for the proper implementation of the agreement to mediate.

C. Costs – section 21 of the Act provides that where the Court has referred a matter to mediation under section 16, it may have regard to any unreasonable refusal or failure by a party to consider using mediation or to attend mediation, in the awarding of costs in proceedings. Section 21 sets out the factors to be considered by the Court in awarding costs namely that the court will consider any unreasonable refusal or failure by a party to consider using mediation and any unreasonable refusal or failure by a party to attend mediation following an invitation to do so by the Court under section 16.

Order 99, rule 1B already provided that the Court, in considering the awarding of costs of any appeal or of any action, may where it considers just, have regard to the refusal or failure without good reason of any party to participate in any ADR process referred to in Order 56A, rule 2 (as it was before it was amended in accordance with the Act). Order 99, rule 1B has been amended as follows:

  • In considering the awarding of the costs of any appeal or of any action in which the parties have been invited by the Court to consider mediation as a means of attempting to resolve the dispute the subject of the proceedings in accordance with section 16(1) of the Mediation Act 2017, may, where it considers it just, have regard to the matters set out in section 21 of that Act.

Consequently, a Court will consider when deciding on the issue of costs whether a party has, following an invitation made in accordance with section 16 of the Act, unreasonably refused or failed to consider using mediation or to attend a mediation.

It should also be noted that the Court has confirmed that Order 99 rule 1B will only be triggered once an invitation has been made in accordance with Order 56A, rule 2 [Hollybrook (Brighton Road) Management Company Limited v All First Property Management Company Limited and Anor [2011] IEHC 423]. An informal invitation by the Court should not trigger cost implications.

Whilst it appears that there have been no written judgments yet in which an Irish court has awarded costs against a party who had unreasonably refused an invitation to mediate the dispute, the English Court of Appeal case of Dunnett v Railtrack plc [2002] 1 W.L.R. 2434 may provide some guidance going forward.

Facts – the Claimant brought a case suing for damages arising from negligence following the death of her three horses which had been struck by the Defendant’s express claim. The Claimant was unsuccessful at first instance and on appeal. At first instance, the Judge has suggested that the parties consider mediation. The Claimant then referred this suggestion to the Defendant who instructed its solicitors to turn it down as it would involve the payment of money, which it was not willing to contemplate, over and above what it had already offered during negotiations.

Decision – the Court of Appeal held that the reasoning used to reject the offer indicated that the Defendant misunderstood the purpose of ADR. It was a lawyer’s duty to further the overriding objective of the Civil Procedure Rules 1998 being that the Court must deal with cases justly and at proportionate cost. This duty included consideration of whether ADR was a possible remedy. Consequently, if a party rejected ADR out of hand, he would suffer the consequences when costs came to be decided and for that reason no order was made as to the costs.


AUTHOR:

Natalie Coen – Solicitor

ncoen@kanetuohy.ie