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DOLPHIN TRUST IN LIQUIDATION

We have a number of clients who are affected by this and who have instituted proceedings in this matter.  

This is a German Property Fund or a German Fund Group of products.

These are unregulated investments in Ireland and an Order of the High Court made by Mr Justice Brian O’ Moore on Wednesday the 10th March confirms that this investment group is now deemed insolvent and will be wound up.  If you have through a Broker or through any investment vehicle invested funds in this group, please call us on 021 239 0620 and we can assist you in establishing whether you have a claim.  This is a free and confidential service, and we look forward to providing you with any legal assistance required.

Summary of Facts:

On Wednesday morning Mr Justice Brian O’ Moore ordered that a petition to wind up M.U.T103 Limited must be granted.  He deemed the company insolvent and unable to pay its debts as they fell due pursuant to Section 569 (1) (d) of the Companies Act, 2014.

 

Background of Facts:

Charles Smethurst Incorporated the German Property Group GMBH a number of years ago.  It operated as an investment vehicle, whereby it raised funds from private investors to develop and renovate war listed buildings in Germany.  The promise to investors was high, interest payments by way of return.  It is thought that more than 1 billion was invested in the company by investors located in Ireland, the United Kingdom, Russia, France, Singapore and South Korea.   It is believed that Irish investors invested in excess of €170,000,000 in the fund and that extensive Irish investors have been left unpaid.

Many Financial Brokers in Ireland have advised clients that this is a good investment offering a loan coupon in return for a cumulative payment or indeed a yearly payment.  The investment worked on a 3 or 5 year term depending on the initial sum invested or indeed the term of investment.

The Administrator and Security Trustee since 2011 has been Wealth Options Trustees Limited.

It is thought the financial difficulties of the company are long standing and certainly came to light in 2019.  Despite assurances given in this jurisdiction and indeed other countries no payment was forthcoming.

Ms Kathleen Dineen bought a petition before the High Court on the 10th March 2021 seeking an Order to wind up the company on the basis that the company could not pay her loan back following a demand for same.  There was no defence put forward on behalf of the company and Mr Justice O’Moore indicated that the company must be now placed in liquidation.  He noted that there were “profoundly worrying” allegations made about the status of the German Fund since July 2019.  Despite re-assurances given by Brokers and indeed Wealth Options to investors in the intervening period, it seems these assurances were given without foundation or indeed any substance.  Many Irish investors find themselves now in a line of unsecured Creditors in terms of investment made and ultimately are unlikely to see any substantive return of their monies.

Call Stephen Quinn, Carrie McDermott or Anthony Shields on 021 239 0620 for a confidential consultation and advice in respect of this if you have been affected by it.

 

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Quick guide to the Personal Injuries Assessment Board

The Personal Injuries Assessment Board (PIAB) is an independent statutory body which assesses the amount of compensation due to a person who has suffered a personal injury. PIAB generally only deals with the following categories of claims:

  1. Employer’s Liability
  2. Road Traffic Accidents (including MIBI claims); and
  3. Public Liability.

Timelines

Under the Civil Liability and Courts Act 2004, personal injury claims must be started within two years of the date of the accident.

Submitting a claim to PIAB freezes this two-year countdown from the date of acknowledgement by PIAB of the claim[1].

Once the application is received by PIAB, they send a Section 13[2] Notice to the Respondent with a copy application form and accompanying documents, allowing them 90 days to consent to the assessment of the claim by PIAB. Consenting to an assessment does not amount to an admission of liability[3]. If the Respondent fails to reply to PIAB within 90 days, they are deemed to have consented to the assessment.

If Respondent consents to assessment, PIAB typically completes their review and decides on an award within nine months[4] of the consent to the assessment being received. This nine-month period may be extended by an additional six months if PIAB deems it appropriate[5]. Where the time is being extended, both parties must be notified by PIAB of the extension, and the reasons why.

If an assessment is not made by PIAB within 15 months of the date of consent to assessment, then the claim is released, and an authorisation is provided.

Once PIAB completes its assessment, both sides are notified. The Respondent has 21 days to reject the award. If no reply is received within 21 days, the Respondent is deemed to have accepted it. The Claimant has 28 days to accept or reject the award.

If both parties accept the award, the it becomes binding, and the claim is settled. An Order to Pay is made to the Respondent within one month of the assessment becoming binding.

If either side rejects, PIAB will issue an authorisation. The clock remains stopped until six months from the date of an authorisation by PIAB[6].

[1] Section 11 of the Personal Injuries Assessment Board Act 2003

[2] Section 13 of the Personal Injuries Assessment Board Act 2003

[3] Section 16 of the Personal Injuries Assessment Board Act 2003

[4] Section 49(2) of the Personal Injuries Assessment Board Act 2003

[5] Section 49(4) of the Personal Injuries Assessment Board Act 2003

[6] Section 50 of the Personal Injuries Assessment Board Act 2003

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National Claims Information Database Act commences

By Seán O’Halloran

28 January 2019 saw the commencement of the Central Bank (National Claims Information Database) Act 2019. The act provides a legislative basis for the Central Bank to establish and maintain a national claims information database, while also making some amendments to sections 8 and 14 of the Civil Liability and Courts Act 2004.

The establishment of a claims information database was first recommended by the Cost of Insurance Working Group in its Report on the Cost of Motor Insurance, published January 2017. The database is designed to facilitate analysis of trends in motor insurance claims. The Working Group considered this as key to developing an understanding of how claims costs are impacting motor insurance premiums, in particular understanding the relationship between the price paid by a customer for insurance and the cost to insurers.

The database is designed to do the following:

  • Increase the level of information around the relationship between the cost of providing insurance and the cost of a premium for consumers
  • Identify current and emerging trends within the sector
  • identify the factors that cause price movements in the relevant line of insurance
  • Present a statistical analysis of income and expenditure associated with providing the relevant type of insurance
  • Present a statistical analysis of information relating to claims and of each particular settlement channel used in respect of such claims

The act ensures that data is standardised in respect of the various settlement channels through which a claim may be finalised. This is designed to see trends or distinctions in the costs related to these channels, and also to analyse differences between insurers.

The Central Bank of Ireland has been tasked with establishing and administering the database. The Central Bank is now required to collect and analyse data supplied to it by insurers on the income and costs associated with carrying on the relevant class of insurance, before publishing this information annually in a report. The type of information that will now be collected includes data on different types of income, exposure, business expenses, the number and nature of claims, the costs and provisions associated with those claims, as well as the amounts paid in respect of claims resolved in different settlement channels and the costs associated with those claims. Although administered by the Central Bank, the database will be funded entirely by the insurance industry.

The act only deals with motor insurance. However, the act allows the scope of the database to be extended in the future to encompass other lines of insurance, such as employer liability insurance and public liability insurance.

In addition to providing for the establishment of the new database, the act amends section 8 of the Civil Liability and Courts Act 2004 to require that a letter before action be sent no later than one month after the loss. This brings the law into line with the standard retention periods of most businesses of CCTV, which is typically held no longer than 30 days. The act also amends section 14 of the Civil Liability and Courts Act 2004 to require the courts to draw inferences where affidavits of verification are not sworn within 21 days of a relevant pleading in personal injuries claims.

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Anxiety alone not grounds for damages

Martina Fitzpatrick  v Aldi Stores Ireland Ltd

2 May 2018, Dublin Circuit Court, Judge Terence O’Sullivan

While dropping her daughter’s friend in the car park of Aldi, Gort, Co Galway, in December 2015, the Plaintiff, Martina Fitzpatrick (aged 52) claimed that the car park barrier came down on her car, damaging it. This was not disputed by the Defendant, Aldi Stores Ireland Ltd, who had paid for the material damage to Ms Fitzpatrick ’s vehicle.

Telling the Court she had not come to court to seek some “humongous amount of damages for physical injuries”, the Plaintiff instead noted that she had developed a fear of barriers, often now ducking when driving under them on motorways.

She confirmed had not been physically hurt as a result of the incident.

Dismissing Ms Fitzpatrick’s claim entirely, the Judge indicated that he must apply the law in respect of nervous shock.

Holding that the Plaintiff did not meet the criteria to be awarded damages for a recognised shock-induced psychiatric illness, Judge O’Sullivan applied the five criteria set out by the Supreme Court in Kelly v Hennessey [1995] 3 IR 253, namely:

  1. The Plaintiff must establish that they actually suffered “nervous shock”. This term has been used to describe any recognised psychiatric illness.
  2. The Plaintiff must establish that his or her recognised psychiatric illness was shock Induced.
  3. The Plaintiff must prove that the nervous shock was caused by the Defendant’s act or omission.
  4. The nervous shock sustained by the Plaintiff must be by reason of actual or apprehended physical injury to the Plaintiff or person other than the Plaintiff.
  5. The Plaintiff must show that the Defendant owed him or her a duty of care not to cause him a reasonably foreseeable injury in the form of nervous shock.

As Ms Fitzpatrick had not satisfied the recognised conditions for nervous shock, and that her anxiety did not come within the recognisable heads of damage which are compensable, Judge O’Sullivan ruled that no award could be made.

Dismissing her claim, the Judge said that the Plaintiff had not established any damage to her, other than being anxious of barriers. He commended Ms Fitzpatrick for her honesty, and made no order as to costs.

28 September 2018

Carrie McDermott

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Final Report of the Personal Injuries Commission

Update by Carrie McDermott, MDM Solicitors
20 September 2018

The final report of the Personal Injuries Commission was published on 18 September 2018. The Commission, chaired by Mr Justice Nicholas Kearns, was established following the Report of the Cost of the Insurance Working Group, published in January 2017.

The Commission noted:
1. There is a high risk of abuse of the claims system in Ireland because the risk of prosecution for fraudulent claims is “virtually zero”.
2. Awards for soft tissue injuries in Ireland were in excess of four times greater than those in the UK, averaging €17,338 in Ireland compared to €3,984.

The Commission carried out a wide-ranging comparison of care not cash compensation, including countries as disparate as Spain and Canada. The Commission also considered the introduction of more nuanced forms of insurance products to provide for telematics (or ‘black box’) cover.

Following on from its first report, published December 2017, the Commission has now made ten further recommendations:

1. A Judicial Council be requested by the Minister for Justice and Equality to compile guidelines for appropriate general damages for various types of personal injury
2. The Judicial Council Bill 2017 be moved through the Oireachtas.
3. The Law Reform Commission review the Commission’s findings as part of the LRC’s report into proposed legislation to cap damages awards.
4. Persons who suffer soft tissue injury receive timely, appropriate, and effective treatment as part of a standard treatment plan to improve patient outcomes, and lead to downward pressures on costs associated with soft tissue injuries.
5. Where an Insured deals directly with a claimant, no offers of settlement or payment be made until a medical report is first obtained.
6. Claimants must provide prompt notification of any personal injury claim to ensure that a proper investigation of the accident circumstances can be undertaken by a defendant.
7. The establishment of a Garda unit similar to the UK Insurance Fraud Enforcement Department to police fraudulent claims.
8. That insurers step up anti-fraud activity through appropriately trained personnel and the further development of technological means.
9. The adoption of a standardised, internationally-recognised injury coding system by insurers.
10. The establishment of a national medical research study into the prevention and management of soft tissue injuries.

For more information, contact Carrie McDermott, Partner, MDM Solicitors
Carrie.McDermott@mdmsolicitors.ie