Changes to Requirements in Civil Claims

There have been a number of recent changes relating to claims made under the Civil Liability and Courts Act 2004 (the Act).

  1. Written Notice of Claim – Time Limit Reduced to One Month

Section 13 of the Central Bank (National Claims Information Database) Act 2018 brought in important changes in respect of the obligation to serve notice in writing on a wrongdoer or alleged wrongdoer before issuing proceedings under the Act. These changes may have a significant impact on the level of costs that a court may ultimately allow for the legal fees of a successful Plaintiff.  The change will apply to all accidents that occurred on or after the 28 January 2019.

A plaintiff in such an accident is now required to serve a notice in writing within one month (rather than two months) on the alleged wrongdoer.  The Plaintiff will also now need to show ‘reasonable cause’ for why they did not send such notice within one month, failing which the court shall draw inferences from this failure, and may subsequently award a lower amount of legal costs or no legal costs at all to the successful Plaintiff:

Section 8 (1) of the of the Civil Liability and Courts Act 2004: now states as follows:-

“Where a Plaintiff in a personal injuries action, fails, without reasonable cause, to serve a notice in writing, before the expiration of one month from the date of the cause of action, on the wrongdoer or alleged wrongdoer, stating the nature of the wrong alleged to have been committed by him or her, the court hearing the action, shall:-

  • Draw such inferences from the failure as appear proper

and

  • Where the interests of justice so require:

(i) Make no order as to the payment of costs to the Plaintiff or

(ii) Deduct such amount from the costs that would, but for this section, be payable to the Plaintiff as it considers appropriate.”

It is uncertain at this point what might suffice to show reasonable cause, but it might be expected that situations involving urgent or protracted medical treatment to the Plaintiff subsequent to the accident (whether or not these relate to the accident) or involving difficulties relating to identification of the alleged wrongdoer, or cases involving a minor or other disadvantaged Plaintiff might bring them beyond the threshold and therefore not be penalised. In any event, practitioners will note that the need to send a written notice as soon as possible following the cause of action has attained an increased importance.

  1. Affidavits of Verification – changes to the penalty provisions

Another change came into effect on 28 January 2019 and applies to all pleadings and information provided in proceedings brought under the Act on or after that date.  This change is contained in the new Section 14(4) to the Act which now contains the same penalties as Section 8 above for failure to, inter alia, lodge Affidavits of Verification to relevant pleadings within 21 days of delivery of such pleading.

Conclusion

Despite the fact that potential claimants will usually have a period of two years to initiate court proceedings, the changes above place an even greater onus on them to serve written notice of the claim within a very short period of time or face potentially adverse consequences. It is clear from a combination of these changes and the further changes to Personal Injury cases that have come into force on the 3rd April by way of the PIAB (Amendment Act) 2019 (which will be dealt with in another post) it is clear this is an area of law that is experiencing significant reform.

For more information please contact Neal Horgan, Associate Solicitor, on:

Tel: 021-7300200 or

Email: nhorgan@jwod.ie

 

Registry of Beneficial Ownership

Statutory Instrument No. 110 of 2019 entitled European Union (Anti Money Laundering: Beneficial Ownership of Corporate Entities) Regulations 2019 (“Regulations”) was signed into law by the Minister of Finance on the 22nd of March 2019.

The purpose of the Regulations is to establish a Central Register of Beneficial Ownership of Companies and Industrial and Provident Societies and the appointment of a Registrar of Beneficial Ownership.

The Register of Beneficial Ownership (“RBO”) is a register of information held by companies and industrial and provident societies in their own internal registries in respect of the natural persons who are their beneficial owners/controllers.  The information that is required to be filed with the RBO in respect of each beneficial owner (who must be a natural person) is as follows:

  • Forename & Surname.
  • Date of birth.
  • Personal Public Service Number (PPSN).
  • Nationality.
  • County of Residence.
  • A statement of the nature of the interest held by each beneficial owner (e.g. controlling shareholder).
  • A statement of the extent of the interest held by each beneficial owner (e.g. controller of 26% of shares in company).
  • The date on which each natural person was entered in the company’s own register as a beneficial owner.
  • The date of cessation as beneficial owner.
  • If, having exhausted all possible means, no natural persons are identified as beneficial owners, there shall be entered in the register the names and details of the natural person(s) who hold the position(s) of senior managing official(s) of the company/I&P. Relevant entities shall keep records of the actions taken to identify their beneficial owners.
  • Details of the presenter making the entry in the RBO on behalf of the company, i.e. name, contact details and capacity in which they are filing.

Part 3 of the Regulations, which relates to the establishment of the central register, will come into operation on 22 June 2019.  In accordance with the Regulations, the Registrar of Beneficial Ownership will begin to accept on-line filings from 22 June 2019, after which there will be five months for companies and Industrial and Provident Societies to file their Register of Beneficial Ownership data without being in breach of their statutory duty to file.

For further information on the Regulations and your filing obligations contact our Corporate and Commercial team

 

 

 

 

John Sheehan

Head of Corporate and Commercial

Telephone: 021 7300200

Email: jsheehan@jwod.ie

ADVOC shortlisted for ‘Global Network of the Year’ by The Lawyer

ADVOC, the leading international network of independent law firms, has been shortlisted in the category ‘Global Network of the Year’ in The Lawyer’s European Awards 2019.

ADVOC was founded in 1990 and is headquartered in London and facilitates business development, support services and networking amongst its 93 members. This year also marks J.W. O’Donovan’s 25th year of being a member of ADVOC. J.W. O’Donovan were the first Irish firm to join in 1994.

Member firms are invited to join ADVOC based on their extensive experience of commercial work within their jurisdiction. From this, when referrals are made between ADVOC members, clients can be assured that they are getting a comprehensive legal service in the relevant jurisdiction(s). ADVOC now has over 5,500 lawyers across its member firms, covering 72 countries worldwide.

In September 2018, J.W. O’Donovan hosted ADVOC members for the three day Europe Open Board Meeting.

For more, see:-

http://www.advoc.com/

https://www.thelawyereuropeanevent.com/SHORTLIST

JW O’Donovan advises Apisprotect Limited on €1.5 million fundraising

J.W. O’Donovan recently advised Apisprotect Limited on its funding round of €1.5 million from a consortium of private equity funds and Enterprise Ireland.  Apisprotect has developed a system to allow beekeepers in monitoring bee colony’s using the internet of things and machine learning to provide feedback assisting in maintaining colony health. The company will use the proceeds of the round to fund its expansion into international markets. Further detail can be found at http://www.apisprotect.com/news/apisprotect-news.html

Contact John Fuller, Partner, Tel +353 21 7300 200, Email jfuller@jwod.ie

J.W. O’Donovan hosts the ADVOC Europe Open Board Meeting

Members from ADVOC, the leading international network of independent law firms, enjoyed a taste of Cork culture as they met in the city last weekend for the Advoc Europe Open Board Meeting, an international legal conference, which ran from the 21st – 23rd September and was hosted by J.W. O’Donovan. The conference was attended by ADVOC members from England, Cyprus, Hungary, The Netherlands, Germany, France, Spain, Italy and Switzerland.

The ADVOC network, founded in 1990 and headquartered in London, facilitates business development, support services, and networking among its 93 members, which hail from 72 countries worldwide. J.W. O’Donovan was the first Irish law firm to join the network in 1994.

Jerome O’Sullivan of J.W. O’Donovan commented,

A great benefit of being part of such a diverse and wide-ranging network of people and knowledge is that it has enabled us access to global legal support from firms that are leaders in their jurisdiction. In effect, it creates a virtual law firm of over 5,500 lawyers. Having access to that network and level of expertise has been invaluable for us as a firm.”

The conference, which opened on Friday night, also coincided with Culture Night, the national celebration of culture held in cities and town around the country.

Jerome commented,

“Not only were we delighted to host this year’s event in our fantastic city, but that it coincided with our annual celebration of Cork Culture was fortuitous coincidence. It was a privilege and a pleasure to have the opportunity to show our member delegates just what Cork City has to offer, in terms of the arts, food, entertainment and atmosphere.”

The conference continued on Saturday morning with meetings for delegates in the Imperial Hotel on South Mall, before moving onto visits of some of Cork’s main attractions including Blarney Castle and a walking tour of the city. The main conference dinner took place in the Crawford Art Gallery.

“The feedback from delegates of this year’s conference was very positive, particularly in response to Cork’s cultural and historical offering. We wanted our European partners to enjoy the city at its best, to take a stroll around after dinner in the evenings and soak up the friendly, warm atmosphere that Cork is known for.”

Jerome O’Sullivan Managing Partner at J.W O’Donovan Solicitors welcoming Garry Mackey Chairman of ADVOC.

Have you Filed your Annual Returns?

Have you Filed your Annual Returns?
There can be very costly consequences both for a company and for directors of a company that fail to file their annual returns on time. The Companies Registration Office (CRO) is the body charged with enforcing compliance with the Companies Act 2014 and it takes the matter of filing annual returns very seriously. The financial consequences for failing to file on time include late filing fees and penalties, on the spot fines and the loss of audit exemption for a company’s accounts. In some situations non-compliance may eventually result in the striking-off of the company and the criminal prosecution of companies and of directors.

The Obligation to File Annual Returns
Section 343 of the Companies Act 2014 states the following:
S343 (2)
Subject to the provisions of this section, a company shall deliver to the Registrar an annual return in accordance with subsection (4) not later than 28 days after the annual return date of the company.

S343 (3)
However, if the annual return is made up to an earlier date than the company’s annual return date, it shall be so delivered not later than 28 days after that earlier date.

S343 (4)
An annual return of a company shall—
(a) be in the prescribed form and contain the prescribed information, and
(b) be made up to a date that is not later than its annual return date,
except that the first annual return falling to be made by a company after it is incorporated shall be made up to the date that is its first annual return date.

So what are the Possible Penalties for Late Filing?

1. Late filing fees
Annual returns which are filed late with the CRO incur a late filing penalty of €100 with effect from the expiry of the company’s filing deadline, with a daily penalty of €3 accruing thereafter, up to a maximum of €1,200 per return.

2. On the Spot fines
The registrar may issue on the spot fines which must be paid within 21 days.

3. Loss of Audit Exemption
Lost of an Audit Exemption will attach to the defaulting company’s accounts for two years which is sure to mean an unwelcome increase in costs for the company.

4. Involuntary Strike-Off Proceedings
In more severe cases, the CRO may decide to bring proceedings to strike-off the offending company.

Criminal Prosecution & Disqualification

Section 343 of the Companies Act 2014 states that companies and directors of companies may be prosecuted for failure to file an annual return. A director who has received three such convictions may be disqualified from acting as director, or having any involvement in the management, of any company.
The Companies Registration Office (CRO) justifies the seriousness of its approach in the following terms:
‘Incorporating a company and availing of limited liability brings with it serious legal obligations, one of which is the filing of prompt and accurate annual returns with the CRO. Failure to file an annual return is a serious matter, the company and any of its officers who are in default shall be guilty of a criminal offence.’

Section 343 (5) – District Court Application to Extend Time
Up until recently the only recourse available was to proceed with a very expensive High Court application. Thankfully, things have changed. Section 343 (5) of the Companies Act 2014 introduced an application to extend time to file annual returns to take place in the District Court where the legal costs for the company are very much reduced.

S343 (5)
The court, on an application made (on notice to the Registrar) by a company, may, if it is satisfied that it would be just to do so, make an order extending the time for the purposes of subsection (2) or (3) in which the annual return of the company in relation to a particular period may be delivered to the Registrar; only one such order may be made as respects the particular period to which the return concerned of the company relates.

Requirements
The CRO must be given at least 21 days’ notice of the application and the court date and an Affidavit must be sworn by one of the Officers of the company explaining the reason as to why the accounts were not filed on time. On receipt of the notice and Affidavit, the CRO will respond with a letter either consenting or objecting to the application. If the CRO are objecting, then a representative of the CRO may attend at court. In such a scenario the District Court Judge may hear evidence from both the CRO and the company representative before deciding whether or not to grant the application to allow for an extension of time. If the application is successful then the Annual Returns will need to be filed within a period (usually 28 days) of the court date. Once this is done on time, all of the above penalties are avoided.

From more information please contact Neal Horgan.

Email: nhorgan@jwod.ie
Tel No: +353 21 7300200

Practice Areas:

 

Seven Step Project Plan to achieve GDPR compliance

John Fuller, solicitor in our Corporate and Commercial Department, has recently published an article setting out a seven step plan to assist in GDPR compliance.  The full article as published on BusinessandFinance.com can be accessed through the link below.

Seven Step Project Plan to achieve GDPR compliance

The deadline for implementation of the new rules is very fast approaching and we would advise everyone who has not started their planning and compliance process to start now.  If you need advice or assistance in relation to your own GDPR compliance plans please contact us.

The Mediation Act 2017

The Mediation Act 2017 (“the Act”) commenced into law on 1 January 2018.

What does the Act seek to achieve?

Mediation has long since been used as a mechanism for dispute resolution within the Irish jurisdiction and the Act contains provisions for a statutory framework to promote and regulate the resolution of disputes through mediation.

The Act introduces a new obligation on solicitors, prior to the issue of proceedings, to advise their clients to consider mediation as a means of resolving their dispute and to provide their client with general information in relation to mediation services, including names of individuals who provide mediation services.

The obligation will apply to all litigation disputes, aside from a number of specific areas set out in the Act including, for example, certain employment law disputes, certain taxation matters and cases against the State concerning breach of fundamental rights.

The underlying objective of the Act is to promote mediation as a viable, effective and efficient alternative to court proceedings, thereby reducing legal costs, speeding up the resolution of disputes and reducing the stress and uncertainty which regularly accompanies court proceedings.

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 the dispute”.

 The process is entirely consensual and the Act provides that participation “shall be voluntary at all times”. Further once a party has engaged in the process, he/she may withdraw at any time. A mediator’s fee may not be contingent on the outcome of mediation.

Prior to commencement of mediation, the mediator is obliged to:

  • ensure that he/she does not have an actual or potential conflict of interest;
  • furnish the parties details of his/her qualifications and with a copy of any Code of Practice published       and approved under the Act to which he/she subscribes.

Throughout the mediation process the mediator is obliged to:

  • act with impartiality and integrity and to “treat the parties fairly”.
  • complete the mediation expeditiously; and
  • ensure that the parties are aware of their rights to obtain independent advice (including legal                 advice) prior to signing any mediation settlement.

Confidentiality is dealt with in particular by the Act, and it provides that all communications 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”. The foregoing does not apply to documents where the disclosure might be necessary for example in the enforcement of a mediation settlement.

Limitation periods

The Act extends limitation periods by the period commencing on the day on which the agreement to mediate is signed (presumably meaning the date on which all parties have executed) and ending on the day which is thirty days after either a mediation settlement is executed or the mediation is terminated. The mediator is obliged to inform the parties in writing of the date on which the mediation ends.

Legal proceedings

The Act promotes the use of mediation as an alternative means of dispute resolution to court proceedings.

In all cases,  prior to issue of the proceedings,  a Statutory Declaration must be made by the solicitor evidencing that the solicitor has performed the obligations imposed under the Act and where such Statutory Declaration has not been completed, the Court “shall adjourn the proceedings” pending compliance. Certain legislation governing children and Judicial Separation/Divorce are excluded from this provision.

Court

Part 4 of the Act deals with the role of the Court in mediation. Section 16 provides that a Court may, on the application of a party or on its own motion, invite the parties to consider mediation and provide the parties with information about the benefits of mediation.

Following an invitation by the Court where the parties decide to engage in mediation the Court may:

  • adjourn the proceedings;
  • make an Order extending the time for compliance by a party with Rules of Court or with any Order         of the Court; or
  • make such other Order or direction as is necessary to facilitate the effective use of Mediation.

These statutory rights are conferred without prejudice to any other discretionary power which the Court may exercise with a view to facilitating the resolution of a dispute.

Section 17 provides that where an invitation by the Court to the parties under Section 16 has occurred, the mediator must prepare and file with the Court a written report setting out why the mediation did not take place, or where the mediation took place a statement as to whether or not a mediation settlement was reached and if the mediation settlement has been reached on all or some only of the matters a statement of the terms of the mediation settlement. The mediator is obliged to furnish such a report to the parties at least seven days prior to its filing.

This is a most curious provision and conflicts with the confidential nature of mediation. Perhaps the message to be taken from this part of the Act is that the parties themselves engage in the process without intervention by the Court under Section 16.

Enforcement

With regard to enforcement, the Act provides that a mediation settlement “shall have effect as a contract between the parties to the settlement” save where it is expressly stated to have no legal force until incorporated into a formal agreement. This of course does no more than recognise the position of all compromises in so far as they are contractual in nature.

Mediator’s fees

The Act 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.

In awarding costs in circumstances where the Court invited the parties to consider mediation, the Court may take into account factors including any unreasonable refusal or failure by a party to consider/attend mediation following an invitation to do so under Section 16(1).

Comment

The Act is a welcome development in the area of dispute resolution. Mediation has been successfully used for dispute resolution for many years in Ireland and has become increasingly common in recent years. The Act reinforces and supports the process.  It preserves the core aspects of mediation a confidential, facilitative and voluntary process in which parties attempt to reach a mutually acceptable agreement.

 

 

 

 

 

Cormac O’Hanlon

Partner

Cormac has practised throughout his career in the fields of commercial law, litigation and dispute resolution. He is former chairman of the Business Law Committee of the Law Society and a former President of the Southern Law Association. Cormac is a CEDR Accredited Mediator and a member of the New York Bar Association.

Email: cohanlon@jwod.ie

Phone: +353 21 7300200

 

 

 

 

 

Karol-Ann Randles

Associate

Karol-Ann is an associate solicitor with J.W. O’Donovan having joined the firm as a trainee in 2008, and qualifying in 2010.  She practises in the areas of Litigation and Dispute Resolution,  and Employment Law with a particular emphasis on public liability, employer’s liability and product liability claims, across a variety of industries and at all court levels.

Email: krandles@jwod.ie

Phone: +353 21 7300200

 

UPDATE ON STAMP DUTY CHANGES IN FINANCE BILL 2017

UPDATE ON STAMP DUTY CHANGES IN FINANCE BILL 2017

Transitional Arrangements relating to Commercial Property

The most significant change to Stamp Duty announced in the Budget Speech was the increase in the rate applicable to commercial property from 2% to 6%. The transitional arrangements applicable have been clarified on publication of the Finance Bill.  There were some fears immediately following the Minister’s speech that the higher rate of duty would apply even where binding contracts to purchase had been signed prior to the Budget.  This would have been a departure from the practice in previous years where the pre-Budget rate of duty had continued to apply to such transactions.  It would also have had a penal effect on purchasers who had committed to buying commercial property but would now be facing unanticipated increases in purchase costs. The Finance Bill has now confirmed that the 2% rate of duty will continue to apply where a binding contract was entered into prior to midnight on 11 October 2017 provided the relevant instrument or deed transferring the property is executed before 1 January 2018.  The instrument or deed must contain a certificate confirming that a binding contract had been entered into prior to 11 October 2017.

Land purchased for residential development

The Minister stated in his Budget Speech that a Stamp Duty Rebate Scheme is to be introduced in relation to commercial land purchased for the development of housing where development commences on the land within 30 months of purchase.  The Finance Bill does not contain any details of this Scheme or how it will operate and it has been indicated that this will be introduced at the Committee stage of the Bill.

Transfers of Agricultural Land

The possible application of the increased rate of Stamp Duty to transfers of agricultural land caused a lot of unhappiness in the agricultural community.   While previously a reduced rate was applicable to the transfer of farms in families, this was subject to a requirement that the transferor was not aged over 67.  This upper age limit is to be removed, and such transfers will benefit from a fixed rate of 1%.  It would appear however that the removal of the upper age limit will not come into effect until the passing of the Finance Act.

Leases of commercial property

The Stamp Duty rate on leases of commercial property will continue to be charged at a rate of 1% on the average annual rent.  Where the landlord receives a premium from the tenant at lease commencement, this will be subject to Stamp Duty at the new 6% rate.

Transfers of Residential Property

The Stamp Duty on residential property remains unaffected by Budget 2018 and will continue to apply at a rate of 1% up to the first €1,000,000 with 2% payable on the excess over €1,000,000.

Leases of residential property

Short-term leases of residential property have not been subject to stamp duty unless the annual rent exceeded €30,000.  This threshold has now been increased to €40,000.

For further information contact:

Jerome O`Sullivan,

Head of Commercial Property

Email: josullivan@jwod.ie.

 

Patrick Bradley

Partner

Email: pbradley@jwod.ie

 

Ciara McDonnell

Partner

Email: cmcdonnell@jwod.ie

 

 

UCC IGNITE Awards

J.W. O’Donovan were delighted to once again sponsor and be part of the judging panel for this years UCC IGNITE programme awards.

The event celebrated the achievements of the 7th cohort of Recent Graduate Entrepreneurs who participated in the 12 month business incubation programme. Ten aspiring Recent Graduate Entrepreneurs, who have just commenced the programme, were also introduced on the night.

The awards judging panel comprised of Sean Byerley, Head of Bank of Ireland – Cork City; Rosscoe Deasy, Associate Director EY; and John Fuller, Associate Solicitor, J.W. O’Donovan.

Sean Byerley, Head of Bank of Ireland – Cork City, chair of the judging panel, praised the young companies, saying “The calibre of the business presentations this year was extremely high, and it’s very encouraging to see that a number of the start-ups we met are well on the road to success having already generated sales revenue or raised finance. Each of the start-ups that presented to the judging panel demonstrated true entrepreneurial spirit and steadfast determination; and each has the potential to develop a successful business.”

Top award winner ApisProtect helps commercial and amateur beekeepers, managing 81 million beehives globally who are losing up to 50% of their colonies each year by using in hive IoT enabled sensors, machine learning , and world class beekeeping knowledge to help them identify hive problems, diseases, and pests.

The JW O’Donovan Solicitors/IGNITE Innovation Award was presented to Kaushik Shanmugam of Lacidem, for the most innovative use of technology. Lacidem is a wearable technology company that provides solutions which enable hospitals to proactively monitor post-surgery/treatment cardiac patients remotely and predict abnormalities. Kaushik came up with the idea when he lost his friend who suffered a heart attack, which motivated him to find a solution to monitor patients outside hospitals efficiently.  Pictured below is John Fuller of our Corporate and Commercial team presenting the award to Kaushik Shanmugam.

The EY/ IGNITE Business Plan Award went to Conor Lyden of TrustAp, a new transaction platform that acts as a safety net for consumers when they’re buying and selling online. Trustap holds the buyer’s money until the transaction has completed and subsequently financial losses to consumers are eliminated.