JWOD advises on strategic acquisition of Irish food testing company

J.W. O’Donovan Partners John Sheehan, John Fuller, David Pearson and Ciara McDonnell recently advised on sale of a majority holding in Advanced Laboratory Testing to Mérieux NutriSciences, as Mérieux seeks to expand its footprint further in Europe.

Mérieux NutriSciences is a world leader in the field of Food Safety and Quality, while Advanced Laboratory Testing is a leading player in the food testing market, and was first established in Kildare, in 2013.

Mérieux’s acquisition of Advanced Laboratory Testing marks the company’s entry into the Irish food safety market. The announcement is a continuation of a trend seen in the last two years of companies based on mainland Europe purchasing entities in Ireland for the purpose of expansion.

For more information on this acquisition, please click here.

To find out more about our expertise in the area of Corporate and Commercial Law, please click here.

Planning and Development Act 2000 (Exempted Development) (No.2) Regulations 2019

On 1 July 2019 new planning regulations came into effect governing the use of short-term tourist related lettings such as Airbnb in areas where rent pressure zones apply.

The Regulations were introduced in an effort to ease the housing crisis by freeing up properties which are currently used for Short Term Lettings or Airbnb and introducing them back into the traditional long-term rental sector.

Short-Term Letting is defined in the Regulations as ‘the letting of a house or apartment or part of a house or apartment, for a period not exceeding 14 days’.

The Regulations introduced the requirement for planning permission in respect of short-term lettings as this is now considered a material change of use for properties which are located in high demand areas. However, where property owners do apply for planning permission it is likely that this will be refused by the Local Authority in rent pressure zones, which will effectively ban short-term lettings in these areas.

Exemptions:

The Regulations provide exemptions to the requirement for planning permission in respect of short-term lettings where the property is the owner’s principal private residence (‘PPR’).

In particular where the property owner rents part of their PPR as a short-term let while they are still resident there, this is exempt under the Regulations and no planning permission is required.

However, where the property owner is temporarily absent from the house and they let the entire premises for short-term letting, this is considered to be an exemption only where the letting is capped at 90 days per year, with a limit of 14 days per letting. Anything in excess of this will require planning permission for change of material use of the property.

Second property:

Where a person owns a second property located in a rent pressure zone and intends to let it on a short-term basis, they must retain planning permission for this property to be used for tourism or short-term letting purposes. No exemption applies in respect of the second-property and all short-term lettings require planning permission.

Registration:

Property owners who are availing of short-term lettings but fall under the exemptions in the Regulations must notify their local authority using the prescribed forms. In particular where a property owner is letting part of their PPR on a short term basis or is letting their entire property for less than 90 days per year, they must indicate this to their local authority at the beginning and end of each year and provide supporting evidence as to why they are exempt from requiring planning permission under the Regulations in respect of their short-term letting arrangements.

 Enforcement:

The Planning Authorities in each functional area are now responsible for monitoring and enforcing compliance with the new requirements. Planning Authorities can take extensive actions where there has been a material change of use of a property and where planning permission has not been retained or complied with. Non-compliance with the Regulations carries a maximum penalty of a €5,000 fine and/or 6 months imprisonment.

If you would like more information on this topic, please contact:

Ciara McDonnell, Partner

Recent landmark case gives further clarity around ‘reasonable accommodations’ for employees with a disability

There has been much debate surrounding what constitutes ‘reasonable accommodation’ for employees with a disability. A recent landmark Supreme Court decision, Nano Nagle School v Marie Daly, addressed three of the main issues in its decision, as follows;

Section 16 – Tasks v Duties:

Section 16(1) of the Act provides that an employer is not required to retain an individual in employment if that person is no longer fully competent to undertake their duties.

The Court emphasised that this provision cannot be read in isolation and that section 16 of the Act must be read in its entirety. In particular it noted that s.16(1) must be read in harmony with s.16(3) which provides a duty on an employer to make ‘reasonable accommodation’ and to take ‘appropriate measures’ to facilitate an employee maintaining their position with a disability.

What constituted an ‘appropriate measure’ was always a matter for the courts to decide and up until now the courts had taken the view that a delegation of ‘tasks’ was considered an ‘appropriate measure’ but that delegation of ‘duties’ went beyond this. The Supreme Court emphasised that there is no real distinction between tasks and duties. Accordingly, there is no reason why certain duties cannot be removed or ‘stripped out’ once it doesn’t place a disproportionate burden on an employer. The test must be one of fact, reasonableness and proportionality and the duty of determining what is reasonable accommodation is one for the deciding tribunal.

Free-standing Obligation:

The Court was critical of the Labour Court’s finding that there existed a ‘free-standing’ obligation on an employer to carry out an evaluation of all the available options, irrespective of whether the employee is capable of doing the job. The Supreme Court held that an obligation is not free-standing, and failure of compliance will not, in itself, give rise to compensation. The Court emphasised there is no mandatory duty of consultation with an employee in each and every case and the Act does not provide for compensation simply by the absence of consultation as this could not in itself constitute discrimination under s.8 of the Act. The Court observed however that a wise employer will provide meaningful participation in vindication of his duty under the Act.

United Nations Convention on the Rights of Persons with Disabilities:

The Court addressed the applicability of EU law to the case and noted that the United Nations Convention on the Rights of Persons with Disabilities (“CRPD”) was approved by the EU Community and ratified by Ireland in 2018. It stated that in accordance with Article 261(2) TFEU, international agreements such at the CRPD were binding on its institutions and therefore prevailed over Acts of the European Union. Accordingly, any EU Directives which relate to disability one to be interpreted in harmony with the U.N Convention and more specifically that the EU concept of disability was explicitly aligned with the CRPD.

Conclusion:

The decision offers some clarity and guidance for both employers and employees and highlights the importance of the following key points:-

  1. There is no free-standing obligation on employers to consider the viability of re-organisation of work and redistribution of tasks among other employees;
  2. There is no duty to create a different position to accommodate an employee with a disability;
  3. There is no distinction to be made between ‘tasks’ and ‘duties’;
  4. An employer can delegate duties to another employee;
  5. The UNCRPD is applicable and prevails over Acts of the European Union.

If you would like more information on this topic, contact David Pearson, Partner at dpearson@jwod.ie or 021 7300200.

 

Recent High Court case highlights importance of independent legal advice for business tenants

A recent High Court battle between Dublin Port Company and Automation Transport Limited raised some interesting issues concerning the execution by a business tenant of a renunciation of its legal rights to a new tenancy on expiry of an existing tenancy.  Under Landlord and Tenant law, subject to certain exceptions, business tenants who have been in occupation of a property for at least five years are not obliged to vacate the property when their existing lease expires and can claim a new tenancy for a further period of between five and twenty years at market rent.

One of the situations where a landlord can refuse a new tenancy is where the tenant has executed a renunciation of its statutory right. However, for the landlord to be able to rely on the renunciation, the legislation provides that the tenant must have received independent legal advice prior to signing the renunciation.

This case centred mainly around the fact that there were a number of errors in the Deed of Renunciation executed by the tenant and doubt was cast on whether in fact it referred to the premises which was the subject of the case. Ultimately, based on the evidence, the judge was satisfied that the errors were not sufficient to invalidate the renunciation.

The tenant also challenged the Deed of Renunciation on the issue of independent legal advice. Initially, it was claimed by the tenant that no such advice had been received, but it seems it was later conceded that this advice may have been given. Significantly, the judge found that where a tenant signs a document which states that he received independent legal advice, he is bound by the statement even if it is factually untrue. He based this finding on the legal principal known as “estoppel by misrepresentation”. This essentially means that a party to a contract can’t evade his obligations on grounds which arise from a misrepresentation he made to the other party, i.e. he can’t benefit from his own misrepresentation.

This is a significant finding as sometimes tenants sign renunciations containing a statement that they have received independent legal advice even where no such advice was given (perhaps in an effort to save on legal costs). Tenants should be aware that if they sign such a document, they will not be able to claim at a later date that they are not bound by it on the grounds that no such advice was actually received.

For landlords, the case merely reinforces the importance of:-

(a)        ensuring that a renunciation is signed by a tenant if the landlord wants to avoid statutory renewal rights accruing;

(b)       insisting that the tenant obtain independent legal advice (even where the tenant does not wish to seek such advice);

(c)        insisting that the tenant provide written confirmation of having received independent legal advice; and

(d)       where possible, getting confirmation from an identified legal adviser that such advice has been given.

If you would like more information on this topic, contact JWOD Managing Partner, Jerome O’Sullivan on josullivan@jwod.ie or 021 7300200.

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

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