NEWS & PUBLICATIONS

J.W. O’Donovan Solicitors LLP announces SHARE as its 2022 Charity Partner

 

 

J.W. O’Donovan Solicitors LLP are delighted to announce SHARE as its Charity Partner of the Year for 2022.

SHARE is a charitable organisation based in Cork, dedicated to providing housing and other support for the elderly. Over the past 52 years they’ve “brought help and hope, homes and happiness to the lonely old people who have been forgotten by society”.

SHARE provides supported independent living in their 140 comfortable and secure housing units across seven different locations, have piloted a dementia outreach programme which sees vetted volunteers and students visiting people living with dementia, and have up to 125 daycare centre clients, for whom they provide medical and social support services.

J.W. O’Donovan Solicitors LLP will announce as the year continues what we have in store in order for us to be able to support SHARE and how you can help them too. In the meantime, donations are welcome through their website.

J.W. O’Donovan Solicitors LLP acts for Trustap Limited in €3.1 million fundraising

John Fuller (Partner, Corporate) of J.W. O’Donovan Solicitors LLP has acted for Trustap Limited in relation to its recent fundraising of €3.1 million from Middlegame Ventures, Act and Atlantic Bridge.

Trustap is a digital transaction platform that protects a purchaser from being scammed when transacting with someone they don’t know and essentially brings peace of mind to the user when engaging in an online or face-to-face transactions.

Trustap Limited was founded in Cork in 2017 and is growing quickly, with offices in Ireland, the UK and the US. Chief executive and founder Conor Lyden is quoted in saying “the one thing that has been a big focus for us, is hiring more developers, and also the build out of our sales team, particularly in the US.” The largest fundraise to date for the company will see their Irish team grow again and will be used for marketing, expanding into new markets, and the roll out of new features.

J.W. O’Donovan Solicitors LLP were delighted to act in the fundraising for this Cork headquartered company and look forward to what’s to come for Trustap Limited.

FBD Judgment – Court clarification on compensation for disturbed pubs

The High Court has provided clarification on the extent of losses that Insurance group FBD must cover under its business interruption policy. Certain issues in relation to the scope of losses were raised a test case of four pubs. Following on from our previous articles in relation to this interesting case, Justice Denis McDonald ruled that FBD must indemnify Sean’s Bar in Athlone, as well as the Lemon and Duke, The Leopardstown Inn and Sinnott’s in Dublin as a result of these businesses having to close due to the Covid-19 pandemic.  It is reported that the ruling will affect an estimated 1,000 pub policies.

In Mr. Justice McDonald’s recent judgment, he provided further clarity concerning the issues to be taken into account by FBD in assessing the amount of compensation to be paid to the businesses.

Mr. Justice McDonald found that the Dublin pubs were subject to an early closing requirement during a number of periods from the 10th of August 2020 and were entitled to be indemnified in respect of the losses they had suffered.  He was also asked to adjudicate on a claim by the pubs for compensation in relation to retaining staff and continuing to pay certain staff while the premises were closed.  He found each of the claims to be partly successful, with the exception of the Leopardstown Inn in light of the evidence.

Mr. Justice McDonald noted the extensive efforts made by the parties to address the issues regarding the quantum of the losses and in relation to those issues that remained outstanding.

The Judge also concluded that FBD is not entitled to pursue any issue in relation to under insurance.

The case will return before the Court next month wherein we will provide a further update in relation to this interesting case.

Please email any queries to clehane@jwod.ie

J.W. O’Donovan LLP acted in the sale of Demesne Electrical Sales Limited to OEM International

J.W. O’Donovan LLP acted as legal advisors to the shareholders of Demesne Electrical Sales Limited in the sale of the company to OEM International.

The acquisition, which took effect on the 13th of January 2022, sees OEM International acquire Ireland’s leading independent importer and distributor of electrical control, switchgear, energy saving & installation products. Founded in 1977, Demesne Electrical has grown from humble beginnings in a house Dublin’s Robin Hill Road to a HQ facility in Dublin 24 and national distribution centres in Cork and Dungannon. The company’s total revenue is now circa €20 million. OEM International’s President and CEO Jörgen Zahlin is quoted in saying that their company’s ambition is to “further develop and grow the existing Demesne business and to gradually strengthen the customer offering”. Now under new ownership, Demesne Electrical Sales Limited will continue on a path of further innovation and excellence in the electrical industry.

The team at J.W. O’Donovan LLP was led by John Fuller (Partner, Corporate), with assistance from Anne-Marie Linehan (Partner, Property), and David Pearson (Partner, Employment).

Litigating Golfers – Review of long-established principle that a member cannot sue a club

Ms. Justice Niamh Hyland delivered a very interesting Judgment which received a significant amount of publicity in the last week. The Judgment related to a Plaintiff who sustained a significant injury to his hand (with loss of left index finger) whilst assisting in a voluntary capacity with some building works taking place at Cobh Golf Club.

By way of background, the Plaintiff was a scratch golfer and had been a member at Cobh Golf Club since 2009.  It is well established in case law that a member of a club cannot sue their fellow members, however, Ms Justice Hyland held that the Plaintiff was not, in fact, a member at the time of the incident given that he had failed to pay his membership fees in full.

There was a lot of discussion around the case law and the implications of Club Membership for the Plaintiff given that a club has no separate legal identity from that of its members and as such a member suing the club (or the club’s trustees) was in law suing himself. Accordingly, the Constitution of the Club was examined in detail by the Court.  The Judge held that the wording of the Constitution was “crystal clear” and disregarded the fact that the Plaintiff had played in competitions for the Club after the 31st January (when membership would have been terminated for non-payment of fees) stating that “the Club was simply not applying its own rules of membership.”  Furthermore, the court also rejected the argument that the practice of the club was to treat the Plaintiff as a member and, therefore, he could not sue.

The Judge went on to find that the Defendants were vicariously liable for the accident and that the evidence established liability, awarding €100,000 in General Damages to the Plaintiff.

It remains to be seen whether an Appeal will be lodged in respect of the award for damages, however this Judgment certainly shines a light on the importance of Club Rules being followed to a “tee”.

A copy of the full Judgment can be viewed by clicking on the following link: https://www.courts.ie/acc/alfresco/b6307282-5fa4-403f-b4c7-7a71e3e20d21/2021_IEHC_679.pdf/pdf#view=fitH

If you would like further information in relation to any of the above, please contact Ciara Lehane, Associate Solicitor by email to clehane@jwod.ie or call 021-7300200.

This article will be updated in the event of Appeal.

Deadline looming on Local Property Tax

The valuation date for all residential property for Local Property Tax (LPT) purposes was Monday, 1 November 2021 with the obligation on property owners to self-assess the value of their property and file a return by 7 November 2021. In order to file a Return, owners need to value their property, confirm the details of the property and ownership and indicate how they wish to pay the 2022 Charge.

The value that property owners place on their property will determine the amount of LPT payable for 2022, and for the three years from 2023 to 2025.

Some properties which have previously been exempt from LPT Charges to date – such as new homes or those in ‘ghost estates’ – will become subject to the charge from 2022.

A small number of exemptions still remain, to include the following:

  • property owned by persons who are not able to live in the property due to long term incapacity or infirmity;
  • properties purchased, adapted or built for incapacitated persons; and
  • properties damaged by pyrite (maximum of 6 year relief) or defective concrete blocks (such as MICA issues).

Valuation Bands have been revised since 2013 and Revenue have placed a guide valuation on each property which will need to be reviewed. Whilst most people will likely be guided by the options set out on Revenue’s property valuation guide at www.revenue.ie, where owners will be asked to enter the Eircode of their property. The interactive map, will then offer a price band for that address. There  are other options open to owners arriving at a valuation of their property to include:-

Whilst Revenue has not, to date, undertaken significant reviews of the self-assessment values placed on properties by their owners, it is anticipated this may change in the near future. If an owner wishes to dispute the valuation placed by Revenue on a particular property, the Land Values Reference Committee will be the authority who will now decide the issue.

Owners may choose to pay the LPT due in one annual payment (deducted on 21 March 2022) or in instalments. Payment options include direct debit, credit card or deduction at source. Cash payments can be made through An Post or by forwarding a cheque to the LPT Branch in Limerick. If an individual is eligible to defer payment, and wishes to do so, an interest rate of 3% will apply.

Property owners will need to be aware that if they choose not to submit a new Return, Revenue will collect an amount based on their estimated value of the property. However, the obligation on property owners to submit a Return remains and should an individual choose not to file a return or pay the tax due, they may have difficulty obtaining a tax clearance certificate or be subject to a fine up to €1,000.

If you have any queries on the above, please contact Niamh O’Connor (noconnor@jwod.ie or 021-7300200) of JW O’Donovan LLP, 53 South Mall, Cork.

Focus Ireland Shine a Light Night 2021

On Friday 15th October, Jerome O’Sullivan  and John Fuller (Team JWOD) will be leaving the comfort of our beds for one night to sleep-out on Spike Island on Shine a Light Night to support people experiencing homelessness and raise vital funds for Focus Ireland. Whilst you are tucked up in bed, we will be sleeping on cardboard battling Ireland’s cold and possibly wet weather with just a sleeping bag and a cup of soup.

While we are all hopeful that the worst effects of the Covid-19 pandemic are behind us, it has been a particularly challenging period for the many men, women, families and children who are homeless or at risk of homelessness. Focus Ireland relies heavily on support from business leaders on Shine a Light Night to raise vital funds for their work, and we need to support them now more than ever.

There are over 8,132 people homeless in Ireland and 1 in 3 of those is a child. We have signed up to take part in the sleep-out so we as individuals and J W O’Donovan can play our part in helping Focus Ireland provide vital prevention services and change people’s lives.

Focus Ireland believe that homelessness can be ended; they work to break the cycle of homelessness by giving people access to information, housing, childcare and a range of education services throughout Dublin, Cork, Kilkenny, Limerick, Sligo, Waterford, Clare and Wexford.

As a valued client we are now asking for your help. You can help to end and prevent homelessness in Ireland by sponsoring me to take part in the virtual sleep-out. We have committed to raise €5,000 by 15th October, so please demonstrate your solidarity by sponsoring Team JWOD today.

To sponsor us, go to our fundraising page or send a cheque to us made payable to ‘Focus Ireland’.

Please give what you can as every donation is greatly appreciated; together we can help to change the homeless landscape across Ireland and be a part of the difference in people’s lives.

RECENT CASES GIVE SOME INSIGHT ON COURTS’ ATTITUDE TO COVID RENT ARREARS

It was only a matter of time before disputes between landlords and tenants regarding rent arrears accrued since the commencement of the Covid 19 pandemic would come before the courts. Three recent cases which involved threatened or actual petitions by landlords to wind-up tenants give some indication as to the attitude of the courts to the use of this procedure and, more generally, to the position of tenants who have been unable to trade due to Covid 19 restrictions.

The winding-up petition is a procedure under Sections 569 and 570 of the Companies Act 2014 whereby if a formal demand for payment of a debt exceeding €10,000 is not satisfied within 21 days, the creditor can issue a petition to the High Court to have the company formally wound up by the court, as it is deemed to be unable to pay its debts.  (Legislation introduced as a result of the pandemic increased this threshold to €50,000 for an interim period).

In one of the recent cases, the landlord of Charlestown Shopping Centre issued a winding-up petition against a leisure centre operator in the shopping centre who had been unable to trade for extended periods due to restrictions imposed as a result of the pandemic.  The tenant argued that the “suspension of rent” provisions in the lease should have been applied and that no rent should have been payable during the period when it was prevented from trading. It argued that the consequences of the pandemic amounted to “damage” by an insured risk which should have been covered by the landlord’s insurance.  Commercial leases typically provide for suspension of rent where damage is caused by an insured risk.  The landlord disputed that the suspension of rent provisions were triggered by the circumstances arising from the pandemic.

In giving her decision, Ms. Justice Nuala Butler did not adjudicate on whether or not the suspension of rent provisions were applicable.  However, she said that the mere fact that there was a bona fide dispute raised by the tenant in response to the claim for payment was sufficient for her to decline to grant the winding-up order.  Significantly, she went on to say that even if she had been satisfied that the tenant should be deemed unable to pay its debts within the meaning of Section 570, she would be very reluctant to make a winding-up order where the circumstances of the debt were entirely attributable to ongoing restrictions arising from the Covid 19 pandemic.

This decision followed “hot on the heels” of a case heard a few days earlier when the High Court granted an interim injunction to MBCC Foods Ireland Limited, the operator of the Costa Coffee chain, against its landlord at Dundrum Town Centre who had threatened to issue a winding-up petition arising from unpaid rent alleged to be in excess of €300,000.  MBCC claimed that its lease had been “frustrated” by the pandemic, as it had been prevented from carrying on its business.

Significantly, in both these cases, the tenants had set aside the amounts claimed by the landlord as a means of showing that they were not insolvent, and clearly this fact would have influenced the approach of the court.

The injunction in the Costa Coffee case was granted following an ex parte application i.e. where one side only was represented at the hearing.  There has yet to be a final decision on the case but the landlord subsequently indicated that it would be fully contesting that the lease was frustrated, a claim its counsel described as “spurious”. The legal doctrine of frustration applies where circumstances have occurred that make it impossible to implement the fundamental purpose of the contract. Where the doctrine applies, the contract is treated as being at an end and both parties are freed from their obligations to each other. When granting the Interim Injunction, Mr. Justice Senan Allen commented that he was not “immediately convinced” that every lease in the country was frustrated by the lockdown and a decision in a more recent case reinforces this view.

In the case of Foot Locker Retail Ireland Limited V Percy Nominees Limited, in response to a threatened winding-up petition by its landlord, the well-known retailer Foot Locker issued High Court proceedings in which it sought a declaration that the lease of its Grafton Street store had been frustrated as a result of the Covid 19 restrictions.  As the application of the doctrine of frustration would have had the effect of bringing the lease to an end, Foot Locker subsequently argued that what had occurred was in fact a “partial frustration of the lease” such that the tenant should not be obliged to pay rent for the periods during which the store was closed.  Mr. Justice Brian O` Moore concluded that the concept of partial frustration is not one which exists in Irish law.  He dismissed the Foot Locker case and granted the counterclaim of Percy Nominees for the rent arrears claimed. He also stated that if Foot Locker had been arguing that the lease had been entirely frustrated, he would have concluded that the forced closure of the store did not constitute frustration of the lease.

For further information, contact our Head of Commercial Property Jerome O’Sullivan (josullivan@jwod.ie or 021-7300200)

RE-MORTGAGING: THE BENEFITS AND PROCESS

With the future departure of Ulster Bank and KBC from the Irish Retail Banking sector in mind, and the questions many customers find themselves asking about the need to switch banks and what will happen to their mortgages, customers and non-customers alike ought to consider the possible benefits of switching their mortgage to another bank.

While much has been written about the departure of Ulster Bank and KBC from the Irish market, borrowers can be assured that there is still competition out there owing to new entries to the market, to include Avant Money and Finance Ireland. These new entrants together with the various products on offer from the main pillar banks provide borrowers with a number of options to meet their specific needs.

Re-mortgaging (also known as switching) can offer borrowers the chance to: –

    • Shorten the term of their mortgage;
    • Obtain a more competitive interest rate;
    • Obtain a fixed interest rate for a number of years; or
    • Raise finance for improvements/alterations to your home.

The process of re-mortgaging your home would generally be as follows: –

    1. Find the right product for your requirements. This may be done either by carrying out your own due diligence with a number of banks to see who can best suit your needs or instructing your mortgage broker to do so. Many of the banks are offering varying incentives with each product, to include payment of legal fees, cash back offers, and low interest rates for certain loan to value ratios.
    1. Once you have found the right product, instruct your solicitor that you are re-mortgaging to enable them take the next steps in the process on your behalf.
    1. Your solicitor will carry out the legal due diligence to certify the title to the new bank. Once all requirements are met to enable drawdown of the new mortgage, your solicitor will obtain funds to clear the existing mortgage. Thereafter your solicitor will deal with post drawdown requirements. From this point forward, you will pay your mortgage to your new lender.

J.W. O’Donovan LLP has a very experienced property team who are confident that they will be able to assist you in the re-mortgaging of your property. Should you have any queries, please contact Colm Tobin, Associate Solicitor, by email at ctobin@jwod.ie or by phone at 021-7300200.

Professional Wellbeing Charter

J.W. O`Donovan LLP is proud to announce that we have become a signatory to the Law Society of Ireland Professional Well Being Charter. The Charter is aimed at improving the mental health and wellbeing of employees by eliminating unnecessary workplace stress through improved working practices.

The focus on mental health has increased in the workplace over the past few years and as the Covid- 19 pandemic continues to take its toll, employees are facing greater mental health challenges. Employees have had to adapt to working from home, video conferencing and similar technology instead of face-to-face contact. While use of these tools has allowed employees to maintain productivity and engagement levels, remote working for some may have resulted in longer working hours and an inability for employees to “switch off”.

As signatories to the Charter, we are committed to ensure that policies, procedures and processes are in place that safeguard employee mental health and work to reduce stigma associated with mental health in the workplace. We are also committed to raising awareness of the challenges and championing behaviours, skills and practices which promote and enable professional well-being at all levels and across all roles, in our workplace.

For more information, the Professional Well Being Charter may be viewed on the Law Society of Ireland website.

https://www.lawsociety.ie/globalassets/documents/wellbeing/professional-wellbeing-charter-el-2021.pdf