State Litigation Principles

The Attorney General, Rossa Fanning, has today published The State Litigation Principles.

These 15 Principles are the first clear statement concerning how the State should conduct litigation and confirm that the State should act honestly, efficiently and in the public interest in the conduct of litigation.

The Attorney noted they are “not intended to radically change how the State conducts litigation”. They do not create rules of law nor do they have any binding legal effect.

The Principles acknowledge that the State cannot be precluded from contesting proceedings, appealing a decision, settling proceedings (with or without admission of liability), relying on legal professional privilege or applying for the recovery of the State’s costs in an appropriate case.

The Principles explain that the State will take steps to avoid, prevent and limit the scope of legal proceedings, wherever this is possible, a policy that is clearly consistent with the policy intent underlying the Mediation Act, 2017. This does mean a greater emphasis on early engagement to try and avoid unnecessary litigation.

The Principles advise that, where appropriate, the State will encourage the settlement or compromise of proceedings by the making of settlement offers, tenders or lodgments.

The Principles also emphasise the importance of adherence to best practice in the discovery process. Once ordered or agreed, the State ought to seek to comply with its obligations in a timely fashion, which can be challenging in cases where discovery is extensive.

The Principles also give guidelines on the role of apologies. There are occasions where the Courts determine the State has acted unlawfully. There are also occasions where it emerges in the course of litigation, without judicial determination, that the State has acted unlawfully. In an appropriate case where the circumstances demand it, an apology may be warranted as part of the appropriate response to the litigation.

The Principles recommend the State will seek to agree claimant’s costs without the requirement for formal adjudication and engage constructively on the issue without the requirement for the costs to be formally adjudicated.

https://www.gov.ie/pdf/?file=https://assets.gov.ie/261411/d915cfb8-2344-48a0-ae06-0f3c83216847.pdf#page=null

Tips on Making a Will

A WILL is a declaration of what a person wishes to be done with their estate after their death. The person making the declaration is the testator/testatrix.

Before making a will you should:-

  • Give the matter some serious thought and
  • Take professional advice
  • If you have children under 18, it is especially important to decide who you would like to raise them in your absence and to obtain that person’s agreement.  Don’t forget to consider money for education and other child rearing expenses and provide clarity how these assets will be managed and by whom.
  • Pick your Executor. An executor is responsible for exercising your estate in accordance with your instructions after your death. It can be a very challenging role so choosing the right person is very important. Not everyone will want to take on this level of responsibility so choose carefully and confirm with the person they are happy to act.
  • Choose a Substitute Executor. In the event you are married you will probably choose your spouse as your Executor. In the unfortunate event that you are both in an accident without a substitute executor there will be no one to execute your will. People will often have their Solicitor as their Executor.

After you have made your will it is essential you:-

  • Must sign it in front of two witnesses otherwise it won’t be valid. This means that all the time and effort that has gone into drawing up your will, will have been for nothing.
  • Store it safely! There is no point hiding it somewhere that it can’t be found after your death. It should be stored somewhere that is protected from flood, fire or damage. Your Solicitor can store your will for you or your bank.
  • Each year, you should update a list of all your assets such as property, bank accounts etc. and keep it attached to your will or with a copy of it.
  • Your will should be updated when your personal or financial circumstances change.

If you need help making a will in Ireland, contact us today. Our Team can advise you on the best course of action when making your will. 

THE SICK LEAVE ACT 2022

The Sick Leave Act 2022 became law on the 20th of July 2022 and has now commenced.  The provisions of the Act are to be phased in over a four-year period and the Employees Sick Pay entitlement will start once the law is commenced. The scheme will commence with three days per year rising to five days payable in 2023 and, seven days payable in 2024.  It will be the latest in a series of actions that have improved social protections for workers and the self-employed over the last five years, including:

    • paternity benefit
    • parental leave benefit
    • enhanced maternity benefit
    • treatment benefit
    • the extension of social insurance benefits to the self-employed

Main provisions of the Act:

    • 70% of an employees wage, subject to a daily threshold of €110. This may be revised over time by ministerial order in line with inflation and changing incomes.  The rate of 70% and the daily cap are set to ensure excessive costs are not placed solely on employers, who in certain sectors may also have to deal with the cost of replacing staff who are out sick at short notice.
    • Employees must have a minimum of six months service with the employer to be eligible to receive statutory sick pay.
    • It applies to both fixed term and part time employees.
    • The employee must be medically certified as unfit to work. The Employer must deduct taxes in the normal manner.  Once the entitlement to statutory sick pay from the employer ends, employees who need to take more time off may qualify for illness benefit from the Department of Social Protection subject to PRSI contributions.
    • Employers should be aware that the draft legislation will not erode existing contractual rights where an employee’s current contractual entitlement to sick pay exceeds the amount of paid sick leave envisaged by the draft legislation.
    • The Act does not provide for any further top up of salary for the employee and nor will any compensation scheme be provided for employers to assist them with the costs of sick pay.

It is envisaged that Employers will eventually cover the cost of 10 sick days per year in 2025. The Legislation is being phased in to help employers, particularly small businesses, to plan ahead and manage the additional cost, which has been capped.  Therefore, businesses around the country must now make provision for this new regime and consider where changes to existing policies are required once the scheme is introduced. The right to sick pay will be legally enforceable by employees through the Workplace Relations Commission and the Courts and will be another arsenal in an Employees complaint against an Employer.  If you are an employer who is concerned about issues surrounding Sick Pay policies and need to review your employment contracts, contact our Employment Law Expert Anthony Shields by telephone on 021 239 0620 or by email: Anthony.shields@mdmsolictiors.ie

Delaney v The Personal Injuries Board & ors – Supreme Court Appeal against the Personal Injuries Guidelines

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.

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.