Insights – Page 2

11/11/2022

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

08/11/202208/11/2022

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 10^th 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.

25/08/2022

When may a Court grant a divorce?

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

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.

05/08/202208/08/2022

Reform of the Occupiers Liability Act 1995 and the Duty of Care

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: –

A rebalancing of the Duty of Care owed by Occupiers to Visitors and recreational users.
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.
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.
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

25/07/2022

Distressed Assets: Possession and Damages

PATRICK HENNESSY V KEN TYRELL & EVERYDAY FINANCE DESIGNATED ACTIVITY COMPANY

This case was an emergency interlocutory application by the Plaintiff to prevent the Receiver Ken Tyrell and Everyday Finance from taking possession and selling his lands and from prohibiting an on-line action. The urgency was that there was an auction scheduled to take place imminently.

By way of background the purchase of the property was funded by a loan from AIB and secured by a Charge over the lands. The Plaintiff failed to meet his obligations in November 2016 and while he engaged with AIB, the loans were eventually transferred in 2019 to Everyday Finance. Further engagement ensued between the Plaintiff and Everyday Finance however no resolution was found.

In September 2021 Everyday appointed Ken Tyrell as Receiver. The Receiver’s power was limited to collection of the rents and profits. The Plaintiff and his brother had a company called Hennessy Brothers Farming Limited which had licences to farm most of the lands subject to a €50,000 per annum payment which included a licence fee which was not paid over to the Receiver. The Plaintiffs were unable to pay their debts or secure a restructuring of their debts.

The application for the injunction involved the restraining of the sale in the manner proposed by the Receiver and Everyday. It was not contested that Everyday had a power of sale or that the power had arisen or that it was exercisable. The Plaintiff said that he was shocked to be told that his lands were advertised for sale on a website. The land appeared to have been first advertised for sale in early February 2022 with an auction date for the 24^th February 2022 and the advertising campaign appeared to have been limited to those who might stumble on the listing on the website.

The Judge ultimately concluded that he did not believe that damages would be an adequate remedy. Judge Allen referred to the issue of Everyday attempting to sell the lands with the Plaintiff in possession, but he did not go as far to say that Everyday were not entitled to offer the lands for sale without vacant possession.

Ultimately the Court concluded by granting the Orders sought essentially preventing the sale of the charged lands. The Court did make directions to ensure the expedient exchange of Pleadings and early Trial date to minimise the risk of injustice to either party.