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The long anticipated appeal by the Plaintiff to the Supreme Court against the Personal Injuries Guidelines was heard over the course of two days this week. The appeal was heard by a seven-Judge Court, comprising four Supreme Court judges – Mr Justice Maurice Collins, Mr Justice Gerard Hogan, Mr Justice Peter Charleton and Mr Justice Brian Murray – and three Court of Appeal judges, Ms Justice Máire Whelan, Ms Justice Mary Faherty and Mr Justice Robert Haughton.

The action challenges guidelines drafted by the Personal Injuries Guidelines Committee of the Judicial Council, as required by the 2019 Act. They came into force in April 2021, after they were approved by a majority of the 146 members of the Judicial Council.

The Plaintiff’s legal team submitted that the guidelines interfered with the independence of the Courts and her rights and the passing of the guidelines in March 2021 was a “legislative act cloaked in a veneer of judicial action” and amounted to an unconstitutional interference with judicial independence.

They argue that the Personal Injuries Assessment Board acted outside its powers in assessing her claim under the guidelines and subsequently breached her rights to natural and constitutional justice. It is alleged the Judicial Council acted outside of its powers in adopting the guidelines.

Lawyers on behalf of the State have indicated that Judges can depart from the guidelines if they feel the award does not do an injury justice. Eoin McCullough SC, on behalf of the State, stressed that the guidelines are not legislation due to the fact judges can depart from them.
Mr. McCullough SC responded to a number of hypothetical scenarios, raised by the seven panel Court, where judges might be entitled to make a higher award than is set out in the guidelines.

Mr. McCullough SC submitted that while judges were expected to follow the guidelines, if they believed these figures were “simply wrong”, the Judicial Council Act of 2019 provided for a departure.
When asked by Mr Justice Murray if “mere disagreement” with a value given in the guidelines allowed for departure, Mr McCullough submitted it did as long as other principles, such as proportionality, were observed and reasons set out.

Responding to the submissions put forward on behalf of the State, Feichín McDonagh SC, for Ms Delaney, said the guidelines arose out of a process “forced” on the judiciary by the Oireachtas. Mr. McDonagh SC said the fact no judge who was not a member of the Judicial Council could hear this appeal spoke to the fact the March 2021 decision “crosses and recrosses the boundaries” between the judiciary and the executive.

The Court has reserved its decision and a judgment is now awaited.

It is predicted that 42% of Irish Consumers plan to shop the Cyber Monday sales this year, an increase of 10% on 2021, with the most popular purchase to be electronic.  But what happens when you are not happy with your purchase? What are your rights under Irish Law?

Under S.I. 484 / 2013 EU (Consumer Information, Cancellation and Other Rights) Regulations 2003 a consumer can return an item purchased online from any Company based in the EU within 14 days of purchase. This is known as the consumer’s right to a cooling off period and the item can be returned within 14 days from the date of receiving the item, with no explanation required (provided that the item purchased was not personalized for the consumer by the Company).

Regulation 2 of the 2013 Regulations defines a ‘consumer’ as a natural person who is acting for purposes which are outside the person’s trade, business, craft or profession. Conversely, a ‘trader’ is a natural or legal person who is acting for purposes related to their trade, business or profession.

The 2013 Regulations provide that consumers have a ‘cooling-off period’ within which they can decide to cancel the contract. This period is 14 days from the date of conclusion of the contract, save for sales contracts, where the period begins when the consumer receives the goods. Consequently, a consumer must be reimbursed for the money paid if they gave notice to the Company within 14 days to the effect that they would like to cancel the contract. Should the consumer invoke their right of cancellation, they must return the item to the Company within 14 days, unless the Company agrees to collect it. Either way, the Company must reimburse the Consumer for their costs of returning the item (Regulation 20(2)).

If the Company resists any cancellation pursuant to the above regulations, the consumer can seek enforcement by way of District Court Proceedings (via the small claims procedure if less than €5,000) and also issue a complaint to the Competition and Consumer Protection Commission and to the European Consumer Centre.

Benjamin Franklin said nothing is certain except death and taxes.  From a family law point of view nothing is certain except death and divorce since only the death of a spouse or a divorce can end a marriage.  But when may a Court grant a divorce?

The Family Law (Divorce) Act, 1996 governs divorces, and provides that a Court may grant a divorce order only if:

(a)        at the date of the institution of divorce proceedings, the spouses have lived apart from one another for a period of, or periods amounting to at least two years during the previous three years,

(b)        there is no reasonable prospect of a reconciliation between the spouses, and

(c)        proper provision exists or can be made for the spouses and any dependent members of the family if the divorce.

These requirements must be read together, in other words all three must be present for the Court to exercise its discretion to grant a divorce order or not.

According to the Court Services 2020 Annual Report there was an increase of 29% in the number of divorce applications in 2020 compared to 2019.  In 2020 there were 5,266 divorce applications, 1193 more than in 2019.  The reason behind this increase was the reduction in the waiting period for a period of, or periods amounting to at least two years during the previous three years compared to four years during the previous five years prior to the change in December 2019.

Note that the term “living apart” is given a very specific meaning for the purpose of a divorce, and a spouse can satisfy this requirement even if they continue to live together in the same dwelling.  The two-year waiting period is therefore not triggered by actually separating but would generally start much earlier whilst the parties still lived together under the same roof, albeit not as happily married spouses generally would.

The second requirement is effectively the irretrievable breakdown of the marriage.  The Court must be satisfied that there is no reasonable prospect of reconciliation of a normal marriage relationship between them.  This breakdown can be caused by many reasons, for example infidelity, the parties may have lost the love and affection for one another, and also the attitude of the parties towards continuing with the marriage.

Thirdly the parties and their dependents must be properly provided for following the divorce. A Court will for example consider the financial needs of the spouses and dependents and their income, their earning capacity (if any), property and other financial resources to determine if all the parties will be properly provided for after the divorce.  If not, a divorce order will not be granted.

If you need any advice on getting divorced, kindly email Carrie McDermott at carrie.mcdermott@mdmsolicitors.ie or Mornè Gouws at morne.gouws@mdmsolicitors.ie.

The Occupiers Liability Act 1995 is a governing legislation in respect of the duty a Business owes to a Visitor who enters onto its premises.  The Civil Liability Act 1961 states that for an Occupier of a premises to be relieved from this duty a written Agreement between the Occupier and the Visitor must be entered into.  The law therefore in that regard had been interpreted strongly in favour of the Visitor in the event that any accident befalls the Visitor.  Changes to the law on Duty of Care have been proposed as part of the Government’s general commitment to Insurance reform in Ireland.  Small and medium size Businesses have been complaining for over a decade that Insurance costs are prohibitive to doing business in Ireland and the reform of the Duty of Care contained under the Occupiers Liability Act is part of the Government’s initiative to bring down Insurance costs for business sectors.  There are four proposed changes set out in the Courts and Civil Law (Miscellaneous Provisions) Bill of 2022 which has been introduced by Minister McEntee in recent months.  The four keys areas of reform can be summarised as follows: –

1. A rebalancing of the Duty of Care owed by Occupiers to Visitors and recreational users.
2. A change to the standard of clarity in respect of when the Occupier of a property has acted with reckless disregard to a Visitor or Customer.
3. The circumstances where a Court can impose liability on the Occupier where a person is  unlawfully entered onto a premises for the purposes of committing an offence will be limited.
4. Where a Visitor or Customer voluntarily assumes a risk such an assumption will be set out in the amendments to the Act and liability arising therefrom will be curtailed.  The proposed Bill will most likely go before the Oireachtas for enactment after the Summer recess break.

For further information please contact MDM Solicitors on 021 239 0620