Cyber Monday and Online Purchases What are your rights?

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.

Improved Family Justice System on the cards

On the 16th November 2022 the Minister of Justice published the Family Justice Strategy 2022-2025.  This plan was created over a period of two years by the Family Justice Oversight Group and ushers in a new era for the Family Justice System, with the needs of children at the centre thereof, giving children voices to be heard and considered, and supporting them in their own individual journey through the Family Justice System.

The strategy also aims to promote the increased use of digital solutions for families to access and legal professionals to participate in the family justice system (digitalisation), the increased use of non-court options to resolve disputes (Alternative Dispute Resolution)

New legislation will also be introduced to establish dedicated Family Courts and to formulate bespoke Rules of Court for family law proceedings.

The aforesaid reform is to be welcomed and certainly a step in the right direction.

If you would like to arrange a consultation or would like further information please get in touch with Mornè Gouws of our office via phone or email morne.gouws@mdmsolicitors.ie

HSE DATA BREACH – NOVEMBER 2022 UPDATE

 

The recent ransomware attack on the HSE I.T. systems causing Hospitals and G.P practices to shut down some 18 months ago has once again been the highlight of media reports in the last few weeks.  While the focus has been the immediate disruption caused, the potential exposure of sensitive citizens data is now well known.

Data breaches by the HSE are not uncommon.  In February of this year, a new Covid-19 vaccination rollout I.T. system was established and backed by Salesforce CRM and IBM who won a State Tender to provide the service.  However due to 52 data access points within the system, a significant data breach occurred mainly due to employee error.

Furthermore, it was reported recently that warnings were made about “weaknesses” in the Health Service Executive’s computer systems three years ago.  Issues were identified with “security controls” and “disaster recovery protocols” by internal audits which were flagged in HSE annual reports for two years in a row.

The HSE have commenced contacting those affected (approximately 112,000 individuals) with the first 300 being contacted this month.  The HSE have allowed themselves until April 2023 to contact all those affected.

WHAT DOES THIS MEAN FOR THE IRISH PUBLIC?

 

Due to the ransomware attacks and previous data breaches, an enormous amount of sensitive data to include PPS Numbers, date of births and other personal records can be sold online on the Dark Web to the highest bidder who with the use of social engineering can use this information for fraudulent purposes at a significant cost to the victims whose data has been used in this way.   For such victims, the main recourse is to pursue a claim under the GDPR Regulations which are governed in Ireland under the Data Protection Act 2018.

There are two avenues of complaint:

  1. A complaint to the Data Protection Commissioner (DPC)

As the DPC can reach findings about whether there has been a breach, the DPC cannot award compensation but if liability is in question, then the DPC may be able to clarify the matter before proceedings are issued.

  1. A Data Protection Action in either the Circuit Court or High Court under S.117 Data Protection Act 2018.

 

Under GDPR a data controller or a data processor such as the HSE must contact you and inform you that your personal data has been breached.  However due to the recent media coverage it may be disproportionate for the HSE to establish contact.  If you believe your data has been breached, you should contact the HSE directly to clarify whether it has.

 

Prior to the GDPR, the Irish High Court held that only material damage was compensable.  However, Article 82 of the GDPR establishes a right to compensation for a data subject who has suffered either material or non- material damages as a result of the breach.  Such loss has been difficult to quantify but recent persuasive UK Authorities have ruled that compensation can be awarded for loss of control over personal data, even where there was no pecuniary damage or distress.   However, in Ireland, it will be necessary to show such loss from a psychological point of view.  The Irish Courts have repeatedly ruled that upset or distress short of psychiatric injury is not recoverable in tort. Therefore, you would have to make a claim through the Personal Injury Assessment Board for a claim for such injury and to do so within 2 years despite the fact that the GDPR statute allows for 6 years.  It may be the case that any such data used for fraudulent purposes will allow one 6 years to take a case to the Circuit or High Court for material damage.

 

In the last month, the HSE has started to contact the 112,000 individuals affected by this and have allowed themselves until April 2023 to notify those affected.  This is alarming to say the least as personal data can be used to create fake bank account, PPS Numbers and fake identities for numerous criminal activities with a potential personal financial loss for those affected.

 

If you have been affected and have been contacted by the HSE, then do not hesitate to contact us on 021 2390620 or email: anthony.shields@mdmsolicitors.ie and a member of our specialised privacy and data protection experts will be able to advise you.

 

Autism and Paediatric Traumatic Brain Injury

Two cases have now come before the Courts in Ireland where the family of a child with Autism have sued the National Maternity Hospital over the circumstances surrounding the child’s birth.

 

  • Updated Research

 

Over the last 10 years or so scientific evidence has developed and shown that perinatal and intranatal trauma are significant risk factors for developing autism. The first advancement in this regard was a Californian article in 2017 which examined the inter-relationship between birth trauma and the risk of developing autism.

 

Researchers discovered that nearly 40%, of the approximately 6,000 children reviewed, suffered complications either shortly before or during birth. The complications researchers found to be most closely related to autism included birth asphyxia and pre-eclampsia. This research has in turn led to more clinical negligence case investigations.

 

  • Legal cases taken against National Maternity Hospital

 

The first test case in this jurisdiction was that of Finn Phillips v NMH. In June 2019 the case was settled by mediation where Mr. Justice Kevin Cross was happy to endorse a settlement of €7.25 million for a child that developed autism following a traumatic birth.

 

The infant was delivered by ventouse delivery and it was alleged that he was unnecessarily exposed to both asphyxia and trauma from the vacuum extraction. His legal team argued that this led to potential long term consequences. They claimed the injuries suffered included developmental delay and autism. It was claimed that there was a failure to manage the mother’s labour appropriately and an alleged failure to intervene in time.

 

Whilst this case is not a strict precedent as each case will turn on its own facts it is a landmark case in that it related to autism arising from a birth injury and was settled for a very significant sum.

 

Recently a second case against the National Maternity Hospital has been settled  for €10 million, following an eight year battle. Ashton Shiels Flynn, through his mother Michelle, sued the NMH over the circumstances of his birth. The court heard it was only the second case to come before the courts seeking to establish an alleged link between autism and alleged hypoxic event during delivery.

 

  • Causation and Negligence

 

As scientific research progresses causation factors will become definitive and unfortunately it seems probable that there will be a lot more of these type of cases as families investigate causation of autism and developmental delay.

 

Clinical negligence experts in the UK have indicated that the main areas of alleged negligence, and this is by no means an exhaustive list and will continue to be expanded upon, linking autism to birth would be:-

 

    • Pre-eclampsia;
    • Birth management and a failure to intervene in delivery;
    • Instrumentation delivery;
    • Delay in undertaking/undergoing a c-section;

 

  • Next Steps for Families

 

It is important for families who have concerns regarding their child’s birth to take up the relevant medical records and seek expert advice from a team of legal and medical experts to identify any failures or negligence during delivery leading to increased risk of autism.

 

If you would like to arrange a consultation or would like further information please get in touch with Deirdre Rafferty of our office via phone or email deirdre.rafferty@mdmsolicitors.ie

 

Promontoria – Designated Activity Company v Oliver O’ Sullivan and Edmund Heaphy

Background:

The Plaintiff initiated proceedings by way of Special Summons seeking a Declaration that there was due and owing monies by the Defendants to Promontoria in the sum of €255,163.68 as of August 2018 in addition to an Order that the said amount plus interest stands well charged on the interest of the Defendants in the property at 43, Dubh Carraig, Ardmore, Waterford.

The Plaintiff sought a Well charging Order on two separate grounds, one being on the basis of a Solicitors Undertaking to the Plaintiff’s predecessor, Ulster Bank, and secondly, on the basis of an agreement between the Bank and the Defendants to create such security in a Letter of Loan Offer dated the 10th September 2007.

 

Solicitors Undertaking:

In 2002, the Solicitors for the Defendants gave an Undertaking to hold Title Deeds on trust for the Bank. The Undertaking appeared to have been in consideration of the Bank advancing money to the Defendant’s to discharge previous Third-Party mortgages and encumbrances however, the advances to which they related to were not specified in the Undertaking. Furthermore, the Undertaking did not specify the property rather it described the property as “Office/Apartment at Dubh Carraig, Ardmore, Waterford”. Finally, the Undertaking exhibited a Land Registry map for the overall development of which the apartment formed part of, and the map was reasonably small scale.

Loan Facility:

By offer letter dated the 10th September 2007, the Bank offered credit facilities in the amount of €190,000. The Facility Letter identified the relevant security as a First Legal Charge over property at 43, Dubh Carraig, Ardmore, Co. Waterford.

In 2016, the Bank registered a Caution over the Folio as no Mortgage was executed over the property and the Loan Facilities were transferred to the Plaintiff following a loan sale in 2016.

It was claimed that the Undertaking and the Loan Facility created an equitable mortgage over the property and that €255,000 was Well Charged against the Defendants’ interest in the property

It was not established that the 2002 Loan, to which the Solicitors Undertaking related to, was still outstanding by 2007 when the Loan Facility was concluded or indeed whether it was still outstanding at the present time.

 

Decision of the High Court:

The Court observed that the Solicitors Undertaking was not sufficiently cleared to create an equitable mortgage over the property. It was not clear that any of the funds advanced pursuant to the Undertaking remained outstanding. The Undertaking did not clearly identify the property. The court also noted that proceedings only issued in 2019, meaning that the Plaintiff did not meet the 12- year limitation period to take an action and as such the Plaintiff could not rely on the undertaking to ground the claim.

In respect of the 2007 Loan Facility, the Court was not satisfied that the full amount which was sought to be Well Charged was due and owing as the Summons did not comply with the requirement for the full particularization of the debt and there was a lack of detail as to how the interest claimed was calculated. It was noted that the Defendants did not deny that the principal amount in the 2007 Loan Facility had been advanced and remained outstanding. The Court was satisfied that there was no dispute but that the principal amount of €190,000 was advanced and remained outstanding and on that basis, it granted a Declaration that €190,000 was Well Charged in favor of the Plaintiff in respect of the Defendants’ interest in apartment number 43, Dubh Carraig, Ardmore, Co. Waterford.