NEWS & PUBLICATIONS

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. Two 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.

It should be noted that this injunction was granted following an ex parte application i.e. where one side only was represented at the hearing.  The landlord has since indicated to the court that it will be fully contesting that the lease was frustrated, a claim its counsel described as “spurious”.  In fact, 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. This case has been adjourned to November.

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.

Both these cases demonstrate that the use of the winding-up process as a means of compelling tenants to pay alleged arrears of rent may not yield the desired outcome.  They also demonstrate that when it comes to pursuing tenants through the courts for rent arrears arising due to Covid, it may not be “business as usual”.

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

Social Media and Internet Usage Policies: Are Your Employees Putting You and Your Company at Risk?

The current covid-19 crisis has led to a significant increase in the number of employees working from home, using electronic devices and communicating virtually with colleagues, clients and competitors.

This increased reliance on such technologies substantially increases the risk for employers and company officers being held vicariously liable for acts committed by their employees while communicating online or via electronic devices. Furthermore, the Government has recently enacted the Harassment and Harmful Communications and Related Offences Act 2020 (“the Act”) which has a particular focus on prohibiting certain electronic communications and specifically provides that employers and company officers can be held criminally liable for acts committed by its employees.

Employers may be ordered to pay significant damages to third parties and can also be criminally prosecuted for their employees’ actions where such actions are found to be in breach of the following:

    1. Equal Status Acts 2000-2018 – prohibits discrimination on nine grounds including gender, age, race, marital status, religion and disability;
    2. Data Protection Act 2018 – governs the use of personal data;
    3. Defamation Act 2009 – prohibits the publication of defamatory statements;
    4. Intellectual Property Laws – protects Intellectual Property Rights such as copyright and trademarks;
    5. Harassment and Harmful Communications and Related Offences Act 2020 – prohibits the distribution, publication or sending of threatening or grossly offensive communications.

Just as employers can be liable for physical or verbal acts committed by its employees which are in breach of the above provisions, this liability also applies to acts committed electronically or virtually by employees and includes:

    1. Publications by an employee on the company social media accounts such as Facebook, Twitter, LinkedIn;
    2. Publication by an employee on their own personal social media accounts
    3. Emails sent by an employee from a company email address;
    4. Communications sent by an employee from work devices such as mobile phones and laptops.
    5. Messages, videos and links sent via WhatsApp or other messaging apps while in the workplace or for purposes connected to the employment.

To combat this increasing risk to employers the introduction of Social Media and Internet Usage Policies which clearly set out the company’s policies in relation to the use of social media accounts, both connected to the company and personal accounts as well as communication via electronic devices such as laptops and phones provided by the company or used in the workplace can offer significant peace of mind to employers and company officers. A Social Media and Internet Usage policy which is effectively communicated to employees can act as an invaluable defence to employers and company officers who find themselves being pursued by injured parties in a civil claim or by the state for criminal proceedings for acts committed by their employees in the workplace or using company devices or accounts. These policies will also provide increased protection for a company’s reputation, which can be negatively impacted by adverse acts committed by its employees, if it can be shown that the company expressly condemned such acts through the introduction of various policies.

Furthermore, in many cases these policies can be relied upon by employers to justify dismissal of an employee where the employee acts in contravention of these policies, which have been expressly communicated to them and form part of their contract of employment.

Every company is different and all policies can be tailored to the specific requirements and preference of each company in consultation with the employer and employees, where this is preferred. We have extensive experience advising clients from large multi-nationals to indigenous enterprises in relation to workplace policies and can offer assistance to any employer or company officer seeking for advice in relation to any of the above.

For more information on this topic please contact David Pearson, Partner and Head of Employment Law at J.W. O’Donovan LLP, by email at dpearson@jwod.ie or Michelle Cross, Trainee Solicitor by email at mcross@jwod.ie.

Fair Procedures & Employment Injunctions

The Court of Appeal in Ireland this week delivered a seminal judgment that will make the obtaining of injunctions restraining the dismissal of employees more difficult for employees.

The Court determined that if an employer has a contractual right to dismiss an employee on notice without giving any reason a Court cannot imply a term into the contract that the dismissal can only take place if fair procedures have been afforded to the employee, except where the employee is dismissed for misconduct.

The extensive written Court of Appeal decision in O’Donovan V Over-C Technology allowed an appeal against an earlier order of the High Court granting an injunction restraining the employer from dismissing an employee on probation, for performance issues where the dismissal was on notice and summary and without fair procedures having been applied.

The effect of the decision in O’Donovan V Over-C Technology is that the principles of natural justice or fair procedures apply to cases involving dismissal for misconduct but not to termination on other grounds. There is no legal basis to argue that the principles applicable under the Unfair Dismissals Acts should be imported into the common law.

It is important to note this judgment relates solely to injunctions seeking to prevent dismissals of employees.

The separate statutory rights of qualifying employees not to be unfairly dismissed under the Unfair Dismissals Acts continue. An employer remains obliged to implement the principles of fair procedures under the statutory code or face orders of reinstatement, reengagement or compensation for employees who are dismissed.

For more information on this topic please contact David Pearson, Partner and Head of Employment Law at J.W. O’Donovan LLP, by email at dpearson@jwod.ie

LANDMARK HIGH COURT DECISION IN FBD COVID-19 CLOSURES CASE

Today, the High Court has ruled that four pub owners are entitled to be compensated by their Insurer, FBD, for the disruption their businesses suffered due to the Covid-19 pandemic.

Mr. Justice Denis McDonald found that a policy sold by FDB covered losses that the pubs sustained by having to close due to the global health crisis.  The actions were taken by three Dublin bars, namely; Sinnotts, The Leopardstown Inn and Lemon & Duke, as well as Sean’s Bar in Athlone.

The Publicans claimed that they were entitled to have their losses, which were caused by Covid-19, covered under their insurance policies. However, the argument FBD put forward these bar closures were not caused as a result of the outbreak of a disease at the premises or within 25 miles of them.  FBD submitted that the closure was caused by nationwide outbreaks of the disease and such was not covered under the policy.

Although Judgment was due to be delivered in January, the decision of Mr. Justice McDonald was deferred to allow the parties make submissions to the court arising out of the recent Supreme Court of England and Wales Judgment where similar issues were raised.

Under the terms of the pub owners’ policies of insurance, each claimed the following :-

  1. Under the terms of their insurance policies taken out with FBD, they were entitled to have their consequential losses covered by what they claimed is an insurable risk.
  2. By failing to pay out on the policy, the Insurer was in breach of contract.
  3. The policies taken out with FBD contain a clause which states the pubs will be indemnified if their premises were closed by order of the government or local authorities if there are “outbreaks of contagious and infectious diseases on the premises or within 25 miles of same.”

Lawyers for FBD advised the Court that it has never provided cover for a pandemic and no one in Ireland had asked for it.

However, Mr. Justice McDonald was of the view that it was essential to keep in mind that the FBD policies were designed specifically for the pub trade and the nature of that trade is therefore a key aspect of the context against which the policy is to be construed.  Furthermore, Mr. Justice McDonald stated “In the years since section 3 of the FBD policy was devised, a number of significant outbreaks of infectious diseases have occurred.  For example, there was a Swine Flu pandemic in 2009.  We have also witnessed the emergence of SARS in 2003, albeit that it was largely confined, at that time, to the Far East”.

Mr. Justice McDonald disagreed with FDB’s interpretation of its policy. He held that cover was not lost where the closure was caused by nationwide outbreaks of disease, provided there is an outbreak within 25-mile radius and that outbreak was one of the causes of the closure. He stated such outbreaks were a cause of the closure of the pubs announced by the Government on the 15th March last year.

The Judge ruled that while the issue of quantifying the losses suffered by the publicans will be dealt with at a later date, he would not be awarding aggravated damages to the Plaintiff.

The case will be back before the Court on the 17th February and it is clear that this decision will cause FBD considerable difficulty as it would appear that they had issued a large number of similar policies. It is noted that FBD has made a substantial reserve in its account to cover this risk.

This decision has been welcomed by publicans all across the country given the disastrous impact of the pandemic on the pub trade, however, it has yet to be seen whether an appeal will be lodged by FBD Insurance.

A copy of the full Judgment can be viewed by clicking on the following link: https://www.courts.ie/acc/alfresco/8bfaa5dd-3ea3-4580-979f-0dfb2d8243be/2021_IEHC_78.pdf/pdf#view=fitH

If your business has been adversely affected by the Covid-19 Pandemic and 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 further once issues on quantum have been decided.

Remote Working & Right to Disconnect: A Possible Future Entitlement?

The Government has published a new strategy to facilitate employees requesting remote working arrangements in parallel a right to disconnect. It is intended to introduce legislation in September 2021.

Under the strategy employees will be entitled to apply to their employer for remote working arrangements.  While an employee will not automatically be entitled to remote working arrangements the employer will be obliged to provide reasons as to why the request cannot be facilitated.  A dissatisfied employee will have the right to appeal any refusal for remote working arrangements to the Workplace Relations Commission.

The Government in parallel will introduce protections for employees to “disconnect” from emails and phones during switch-off time.  The right to disconnect will be underpinned by a legally enforcement Statutory Code of Conduct that employers will be required to follow.

The Government strategy seeks to facilitate increased levels of remote working while mitigating any negative impacts.

The Government is now engaging with all stakeholders prior to introducing the legislation and is separately reviewing the treatment of remote working for tax purposes.

For more on this topic, please contact David Pearson, Partner and Head of Employment Law at J.W. O’Donovan LLP by email at dpearson@jwod.ie.

15 January 2021