News and Publications

September 20 2017

Author Marie O’Brien BCL – Solicitor, Conveyancing and Probate Department

Marie O'Brien document author

Recent Supreme Court Decision – Care Owed to Purchaser in respect of Error within within a Property Sale Brochure

The Supreme Court have recently handed down a judgment which will be of keen interest to all parties involved in both commercial and residential conveyances. The recent Supreme Court ruling has emphasised the principle of “let the buyer beware”. In the case of David Walsh –v– Jones Lang Lasalle Limited, a case was brought by the Plaintiff in respect of errors within a property sale brochure which contained the following disclaimer: “Whilst every care has been taken in the preparation of these particulars, and they are believed to be correct, they are not warranted and intending buyers/lessees should satisfy themselves as to the correctness of the information given”.

The Plaintiff purchased a property at 77 Upper Gardiner Street, Dublin 1 and the Defendant was the Auctioneer in respect of the property. The Auctioneer prepared a brochure which mis-described the first floor area as totalling 10,463 square feet but in fact its true area was 8,573.5 square feet. The Purchaser did not check the measurement and claimed to have relied upon the sale brochure in purchasing the property. The error only came to light after the sale had closed when the Plaintiff was preparing to let the property.

The Defendants admitted that there was an error in the brochure but fought the case in the High Court on a number of legal issues concerning the above disclaimer.

The High Court found that the Defendant, Jones Lang Lasalle Limited, were liable as the disclaimer did not operate to protect them. The Plaintiff was awarded the sum of €350,000 in compensation which was the amount by which it was determined the Plaintiff had overpaid for the property relying on the mistake in floor area. The Defendants appealed this decision to the Supreme Court who ultimately overturned the High Court’s decision. The Supreme Court found that the High Court was incorrect in finding a duty of care was owed by the Defendants to the Plaintiff Purchaser. The Supreme Court analysed relevant case law and concluded that disclaimer was important evidence in establishing that the Agent Auctioneer had assumed no responsibility to the Purchaser for the accuracy of the statements contained in the brochure.

The Defendants admitted that there was an error in the brochure but fought the case in the High Court on a number of legal issues concerning the above disclaimer.

The above Supreme Court decision is of critical importance to a number of parties involved in the residential and commercial conveyancing.

  1. Auctioneers/Agents: Should always ensure that all advertising and promotional documentation is accurate but also ensure that a well drafted and water tight disclaimer is included to cover any potential inaccuracies.
  2. Investors/Purchasers: Should always engage the appropriate professional before buying a property and should not rely solely on information provided in any promotional or advertising material. The appropriate Engineer or particular Expert, depending on the property in question, should be engaged to thoroughly investigate all matters concerning the property.
  3. Vendors and their Solicitors: Are reminded of the importance of including in all Contacts for the sale of property , be it commercial or residential, to include an entire Agreement Clause which provides that not statement, measurement or calculation contained in any brochure or any documents in respect of the property whether issued on behalf of the Vendor, the Vendor’s Agents or the Vendor’s Solicitors constitutes a representation inducing the buyer to enter into the purchase of the property.

September 16 2017

Author: Martin A Harvey, Principle of Martin A Harvey & Co. BCL LLB

william harvey document author

Proposed legislation to be introduced on Zero Hours’ Contracts

The Department of Jobs has announced that it intends to take immediate action to regulate the use of “zero hours” contracts and the Attorney General has given this matter priority.

Zero hour contracts provide that an employee must make him/herself available for work but does not in fact have any specified hours of work. This maintains a constant “on call” situation. It is in these circumstances that employers retain complete discretion as to when an employee works and is free to decline an employee’s services if they wish to do so. These contracts have attracted considerable public criticism both in Ireland and the U.K. in the recent past as it is believed that it leads to an abuse of employees as they have no way of knowing in advance what their income will be in any particular week. This will have obvious knock on affects for employees when trying to secure credit.

In 2015, the Irish Government commissioned a Report which was undertaken by the University of Limerick in relation to zero hours contracts. It was found that over 5% of Irish workers were employed under such contracts. While the legislation proposed is still only in draft format, a number of the suggestions made will have a significant impact on the existence of “zero hours’ Contracts”. Some of the proposals include:

(1) Employers will be obliged to provide certain information to new employees to include an expected contract duration, the manner in which pay will be calculated and what the employer reasonably expects the normal extent of the working day / week to be. (2) It will be an offence if the employer fails / refuses to comply and the above and will ensure that an employee is given the important information concerning their contract of employment at an early stage.

It is also proposed to introduce a new minimum floor payment of three times the national minimum wage where an employee is called into work but is not actually provided with the hours expected. This is a key introduction which should prove to discourage employers for summoning employees to work for very short periods. The legislation will also create a new cause of action where employees can argue that their actual hours worked are not actually reflected in their contracted hours. If a difference arises between the contract and the hours that the employee works, an employee can seek to be placed in a band of hours that is closer to the hours they actually work.

In assessing this, whether an employee works consistently more or less hours than contracted to do so will be determined by examining the previous 18 month reference period which should allow for seasonal fluctuations at busier times of the year. The legislation will also include a clause which will prevent employees being victimised where a claim is made under the new legislation.

This is common place in most recent legislation and serves to protect an employee who makes a complaint where their rights have been breached.

Opinion

While a published text has yet to be released, it is clear that there is a move towards eliminating zero hours’ contracts in their entirety or to make them very difficult to work on a practical basis from an employer’s prospective.

A further update will be provided once a published text has been released.


September 13 2017

Author: W. Harvey LLM

william harvey document author

Dog owners beware – High Court Judgment

The High Court has recently awarded the sum of €234,557.00 to a woman who was attacked viciously by two dogs as she walked along a quite rural road.

The victim sustained repeated bites to her head, face, arms and legs. The attack was only stopped when another woman came to the scene in her car and sounded the horn which caused the dogs to run away.

The Presiding Judge, Mr. Justice Barr, said liability was not an issue in the case and he was satisfied that the victim had been exposed to a prolonged and very frightening attack by two dogs which had left her with a number of permanent scars on her face and arms.

In awarding the sum of €234,557.00, Mr. Justice Barr, stated that the woman was still very afraid of dogs and if she met them on the street she would avert her eyes and pull her hands into her sleeves and walk away.

The above ruling is an important ruling for dog owners who should always keep their dogs on a secure leash when in a public place. In this particular case, the High Court Justice was satisfied that liability was not in issue and that the dogs were fully responsible for the attack and thereafter injuries suffered to the victim.


September 08 2017

Author: W. Harvey LLM

william harvey document author

Cross Boarder Driving Disqualification to come into effect

Motorists who have been banned from driving in Ireland concerning a number of offences will also have their ban recognised in the U.K. under a new provision brought into force by Minister Shane Ross. Similarly, Motorists who have been banned in the U.K. will also have their ban recognised in Ireland.

The new provision arises from an International Agreement entered into by the two countries and also a number of legislative procedures. The Agreement concerns disqualification arising from a range of traffic offences such as reckless or dangerous driving, drink/drug driving, hit and run offences, speeding, refusal to undertake an alcohol or drug’s test and driving whilst disqualified.

Currently, there is no cross boarder mechanism for the mutual recognition of penalties for road traffic offences such as above.


September 05 2017

Author: Marie O’Brien BCL

Maria O'Brien solicitor

Recent WRC Decision – the importance of an effective and thorough grievance procedure

The Work Relations Commission have recently awarded an Office Manager the sum of €159,705.00 following a grievance which was raised in relation to a health and safety issue within the workplace. This is one of the highest awards made by the Work Relations Commission to date.

The Complainant had been working for the Respondent for an excess of 34 years. The Complainant had raised a grievance concerning difficulties within the workplace which were effecting her health. The Employer took no action in relation to these complaints. The Complainant was summarily dismissed from her employment weeks after raising the grievance.

The Work Relations Commission found that the Respondent’s Employer did not deal with the complaints or issues raised by the employee despite the fact that it was incumbent upon the Employer to do so. The Work Relations Commission also found that the dismissal of the Employee two weeks after making her complaint was a significant issue.

The above decision serves as a useful reminder to Employers that an effective grievance procedure should be implemented where an Employee makes any form of complaint. All complaints should be thoroughly investigated irrespective of the nature of the complaint.


September 01 2017

Fergal O’Sullivan BCLLLM

Fergal O'Sullivan solicitor

Recent Discrimination Ruling – An important reminder for Employers

A recent decision of the High Court in the case of Burn –v- The Minister for Defence and Others, is an important reminder for Employers to ensure that they are fair, clear and consistent with their procedures to deal how Employees are rewarded and promoted within the workplace.

The case concerned alleged unlawful discrimination by an Employee of the Defence Forces whilst on maternity leave. The matter came before the High Court and was ruled upon by Mr. Justice Eagar who found that it was reasonably foreseeable that the Applicant would leave her employment in circumstances where she was treated in a different manner to her work colleagues, all of whom were men.

Usually, a claim for discrimination is dealt with under the Work Relations Commission (WRC) in line with the provisions set out in the Equality Acts of 1998 and 2015. However, this legislation specifically excludes members of the Defence Forces from bringing such a case.

Mr. Justice Eagar ultimately found that the treatment of the Applicant was deemed to be a breach of the 2006 Equal Treatment Directive on the implementation of the principal of equal opportunities and equal treatment of men and women in matters of employment. This directive explicitly prohibits discrimination on grounds of sex in public and private sectors which also includes public bodies such as the Defence Forces.

Mr. Justice Eagar awarded the sum of €824,794.00 to include the Applicant’s loss of earnings, pension loss, gratuity loss and loss of future overseas duties.


August 25 2017

Author: W. Harvey LLM

william harvey document author

Home - D.I.Y’ers’ – Beware – Recent Court of Appeal Decision

The Court of Appeal has recently held that where a homeowner assumes a DIY task in their home, they assume a duty and that duty will be judged as against the standard expected from a reasonably competent tradesman.

The Court of Appeal have set out that a homeowner will not be allowed to rely on a defence of lack of knowledge, ability or craftsmanship in carrying out a particular task.

The case concerned a 22 year old who was present in the Defendant’s house as a guest. The Plaintiff was outside the Defendant’s house when he tripped and fell through a glass panel of a porch door. The glass shattered into tiny pieces and a shard became lodged in the Plaintiff’s eye, causing total loss of sight.

Throughout the course of the proceedings, it came to light that the Defendant had repaired the porch door but used an inappropriate glass for the job.

The case was initially heard in the High Court and the Defendant were not held to be liable on the basis that the Defendant was not expected to perform the fitting of the glass panel to a standard such as that performed by a professional glazier.

The matter was ultimately appealed and came before the Court of Appeal where it was held that the Defendant had failed in his duty of care to visitors by repairing the door to a standard below that of what would have been expected by a reasonably competent tradesman.

The decision of the High Court was overturned and the Defendant was held liable for the injuries suffered to the Plaintiff.


August 16 2017

Patricia O’Sullivan BCL AITI

Patricia O'Sullivan solicitor

Employment Law Update / the right to Legal Representation in the Internal Employment Procedures.

A recent High Court judgement in the case of Michael Lyons – v - Longford Westmeath Education and Training Board has provided welcomed clarity in respect of an employee’s right to have external representation (legal or otherwise) in the internal grievance or disciplinary procedure.

The case concerned a complaint of bullying dating back over several years comprising of several different allegations. The employer retained an outside Company to conduct an investigation into the complaints and the Company did not allow Mr. Lyons the opportunity to cross-examine the colleague who had made the above complaint against him. Mr. Lyons was ultimately informed that the bullying complaint had been upheld and that his Employer would therefore be implementing its disciplinary process. Mr. Lyons applied for injunctive relief to the High Court and ultimately, Mr. Justice Eagar considered a number of recent High and Supreme Court decisions and concluded that the investigation conducted by the Defendants was in breach of his constitutional rights as it failed to allow Mr. Lyons to have legal representation, be it Solicitor or Counsel, who could have cross-examined the Plaintiff.

The above case follows a line of recent authorities dealing with such matters. It has now been accepted by the High and Supreme Court that in circumstances where the potential consequences for an employee are sufficiently serious such as damage to one’s reputation or loss of job, an employee is entitled to benefits of natural justice which include the right to have legal representation and to have a witness cross-examined.


August 09 2017

Author: W. Harvey LLM

william harvey document author

A Welcome Reform to the Insurance (Amendment) Bill 2017

On the 5th of July 2017, the Minister for Finance and Public Expenditure and Reform announced that a Bill will be drafted to bring into force recommendations of the review of the framework of the Motor Insurance compensation industry in Ireland.

The proposed Bill is very much welcomed following the recent Supreme Court Ruling concerning the failed Motor Insurance Company, Setanta.

The main changes proposed concern an increase in the level of the insurance compensation fund coverage for future third party motor claims from 65% to 100%. This increase will be funded by the insurance industry and mechanisms will be in place to protect the industry should a motor insurer be liquidated. The terms will be included to ensure the exchequer is repaid as quickly as possible where there is a shortfall in the industry fund. Other changes will now see the fund administered by the Central Bank of Ireland and the State Claims Agency will also have a role should any Insurance Company fail in the future.

While the Bill is only in its early stages, it is a welcomed development as it is expected to provide further clarity in respect of the insurance compensation framework in Ireland.


August 02 2017

Author: W. Harvey LLM

william harvey document author

Proposed changes the Personal Injuries Assessments Board Acts

The Department of Jobs, Enterprise and Innovation have released a general scheme with respect to the proposed amendments to the current Personal Injuries Board legislation, the Personal Injuries Assessments Board Acts 2003 and 2007.

The new Bill proposes to strengthen the powers of the Injuries Board and it will bring to fruition a number of recommendations included in the Report prepared by the cost of insurance working group.

The Bill includes a number of key proposals which are set out below:

  1. The Injuries Board will enjoy greater discretion in relation to cases of non-compliance such as non-attendance at medical appointments arranged by the Injuries Board or failure to provide Schedule of Special Damages or Loss of Earnings.
  2. The Bill provides that the Book of Quantum will be reviewed every three years and it also gives the Injuries Board the power to obtain relevant data from individuals and organisations to assist in the preparation of the Triennial Book of Quantum.
  3. The Injuries Board will enjoy more discretion to release claims from their remit where claims are not in a position to proceed.
  4. Apply limitation periods under the Acts in a more consistent manner.
  5. The general scheme of the Bill has now been sent to the Office of the Parliamentary Council for drafting and also to the Joint Oireachtas Committee on Jobs, Enterprise and Innovation for Pre-Legislative Scrutiny.

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