GDPR Data Protection Legal Actions in Ireland-the Essentials

gdpr legal actions

 

Were you worried in the lead up to GDPR?

Has the danger passed? Are you just keeping the head down and hoping for the best?

Are you in a good place with respect to compliance or do you still have some concerns but hope the fears generated were exaggerated?

Just to remind you new regulations concerning personal data protection came into force in the EU from 25th May, 2015: the GDPR regulations.

What has happened since then? Was the fear and loathing justified? Was it another “Y2K” scare-all hat and no cattle-or is it too early to decide?

Firstly, GDPR came into effect in Ireland 24 hours after the commencement of a new data protection act, the Data Protection Act, 2018. There is a certain degree of trepidation amongst data controllers and processors that this new law will lead to a significant increase in the number of legal cases arising as a result of breaches for the law now allows data subjects bring civil actions for compensation.

Collective Actions

Data subjects can also now authorise not for profit organisations to bring complaints and act on their behalf. This kind of “class” action is a new development in Ireland and is likely to be availed of when there is a significant breach of personal data on a wide scale affecting a large number of individuals.

Two of these not for profit type organisations, NOYB (‘None of Your Business’) in Austria and La Quadrature du Net (‘La Quad’) filed complaints in some European countries against large tech companies within a short time of GDPR coming into effect. There is nothing stopping them from popping up in Ireland.

Right to Compensation and Damage

The right to compensation and damage is set out in regulation 82 which states,

Right to compensation and liability

1. Any person who has suffered material or non-material damage as a result of an infringement of this Regulation shall have the right to receive compensation from the controller or processor for the damage suffered.

2. Any controller involved in processing shall be liable for the damage caused by processing which infringes this Regulation. A processor shall be liable for the damage caused by processing only where it has not complied with obligations of this Regulation specifically directed to processors or where it has acted outside or contrary to lawful instructions of the controller.

3. A controller or processor shall be exempt from liability under paragraph 2 if it proves that it is not in any way responsible for the event giving rise to the damage.

4. Where more than one controller or processor, or both a controller and a processor, are involved in the same processing and where they are, under paragraphs 2 and 3, responsible for any damage caused by processing, each controller or processor shall be held liable for the entire damage in order to ensure effective compensation of the data subject.

5. Where a controller or processor has, in accordance with paragraph 4, paid full compensation for the damage suffered, that controller or processor shall be entitled to claim back from the other controllers or processors involved in the same processing that part of the compensation corresponding to their part of responsibility for the damage, in accordance with the conditions set out in paragraph 2.

6. Court proceedings for exercising the right to receive compensation shall be brought before the courts competent under the law of the Member State referred to in Article 79(2).

The game changer in this regulations is the reference in subsection 1 to “material or non-material damage”.

Up to this point you had to show you had suffered actual loss or damage in Ireland to be compensated, but you could not be compensated for non-material damage.

You will also see that subsection 1 refers to “controller or processor”. Prior to this only the controller could be held liable but now a processor can be also named as a defendant.

Article 78 sets out the right of the data subject to sue-that is, a judicial remedy. It states,

Article 78

Right to an effective judicial remedy against a supervisory authority

1. Without prejudice to any other administrative or non-judicial remedy, each natural or legal person shall have the right to an effective judicial remedy against a legally binding decision of a supervisory authority concerning them.

2. Without prejudice to any other administrative or non-judicial remedy, each data subject shall have the right to a an effective judicial remedy where the supervisory authority which is competent pursuant to Articles 55 and 56 does not handle a complaint or does not inform the data subject within three months on the progress or outcome of the complaint lodged pursuant to Article 77.

3. Proceedings against a supervisory authority shall be brought before the courts of the Member State where the supervisory authority is established.

4. Where proceedings are brought against a decision of a supervisory authority which was preceded by an opinion or a decision of the Board in the consistency mechanism, the supervisory authority shall forward that opinion or decision to the court.

This right to bring a data protection action in Ireland is set out in section 117 of Data Protection act, 2018. This action is founded on tort-that is, a civil wrong, and can be instituted in the Circuit Court or High Court.

Section 117 obliges the plaintiff data subject to prove that

his or her rights under a relevant enactment have been infringed as a result of the processing of his or her personal data in a manner that fails to comply with a relevant enactment

The critical change now is a data subject can sue for material and non material damage and non material damage is set out in recital 85 as follows:

A personal data breach may, if not addressed in an appropriate and timely manner, result in physical, material or non-material damage to natural persons such as loss of control over their personal data or limitation of their rights, discrimination, identity theft or fraud, financial loss, unauthorised reversal of pseudonymisation, damage to reputation, loss of confidentiality of personal data protected by professional secrecy or any other significant economic or social disadvantage to the natural person concerned

You will see from regulation 82 above, section 2, that the controller and processor will be held liable where they are not compliant with the regulations; it is irrelevant whether they were negligent or at fault in any way.

How much compensation?

It is too early to say what level of compensation Irish courts will award, especially for non material damage such as damage to reputation or unauthorised reversal of pseudonymisation or loss of confidentiality.

Clearly, from the perspective of a controller or processor the smart thing to do is try to ensure that there is no breach of personal data rights in the first place. However, it is vital that a breach is notified to the Data Protection Commissioner within 72 hours of becoming aware of the breach as the Act refers to doing so “without undue delay”.

Section 85 Data Protection Act 2018 states:

85. Where a processor becomes aware of a personal data breach, the processor shall notify the controller on whose behalf the data are being processed of the breach—

(a) in writing, and

(b) without undue delay.

Further reading:

The General Data Protection Regulation (GDPR) in Ireland-the Essentials

Data Protection Breaches-Are You Entitled to Damages?

 

What You Don’t Know About Me (and the Most Important Lesson I’ve Learned)

terry gorry

This is my real story.

Not the official, sanitized version on the About Page of my handful of blogs/websites.

But the real story of a moment of crisis-the property crash in 2007-which threw my life completely out of kilter and was, literally, life and career changing.  

You might learn something from it, and avoid some of the mistakes I made. In fact, I firmly believe you should learn something from my story, especially if…

Wait. Every decent story has a beginning, a middle, and an end.

Let’s start at the beginning.

Ready? Let’s go.

The beginning of my business life

My business/work life really started when I was 23.

Prior to this I had done a B. Comm degree in U.C.D. and had very reluctantly begun to study for professional accountancy exams. I say ‘reluctantly’ because I viewed being an accountant as being a scorekeeper, not a player.

And I wanted to be a player.

In 1986 I bought a shop in Dublin with my brother and I have been self employed ever since (apart from a very brief period which I cannot go into for legal reasons).

I have worked extremely hard since then-in retail shops, newsagents, convenience stores, property development/construction. I even owned a pub for a while. And held an auctioneer’s licence.

I bought sites, flipped them, bought shops, drove the turnover to the maximum and sold as close to the top of the curve as possible.

I bought a pub and stripped out the 7 day licence, looked for permission for redevelopment of the building, was refused, sold the building anyway and sold the licence to Lidl or Aldi (I can’t remember which, but was just thankful to get out of the licensed trade before the more restrictive drink driving laws decimated the trade).

I’ve hand washed cars, manually dipped fuel storage tanks, and employed hundreds over the years.

I’ve also worked on a building site supervising the construction of a small block of apartments on a site I bought.

I drove the teleporter and even passed the test to obtain a licence to drive forklifts and teleporters. (I sometimes joke that I’m the only solicitor in Ireland with a teleporter licence.)

I lifted buckets of “muck” (mortar) to the blocklayers, pallets of tiles to the roofers, scaffolding to the scaffolders, and switched the forks for a big bucket in order to level the ground around the site.

Pressure?

I’ve felt pressure, too, but…

Pressure can mean different things to different people, depending on where they are in life at a given point in time.

For me, pressure was lifting a pallet of roofing tiles up 2.5 stories to 6 Lithuanian roofers, watching them scurry like ants left and right as the entire machine, with forks extended, and pallet of tiles swayed from side to side in the wind and rain, trying to peer out through a filthy windscreen stained on the inside with cigarette smoke, and rain and muck on the outside that the one functioning wiper was trying, and failing, to keep clear.

Pressure was running a filling station and running out of petrol on the Friday of a bank holiday weekend with the delivery truck stuck in heavy traffic, or worse-only delivering on Saturday.

Pressure was telling a man that the reason his new 5 series diesel BMW won’t start is because my newest member of staff has just pumped it full of petrol.

Pressure was worrying about not having money for food next week and knowing that social welfare is not an option because you’ve been independent, self sustaining, and self employed for over 20 years.

Pressure was going back to college to study law when you’re 42, spending your last few bob on the books you need, and having to pass 8 exams within 12 weeks when it normally takes student colleagues a few years.

Because the choice was…there was no choice.

For you, now, pressure will mean something completely different.

It could be pressure in your job from a harsh, bullying boss, pressure in your business from the need to get in outstanding debts, pressure from the banks, pressure to make ends meet in your household each week, pressure of raising a family, pressure of keeping a roof over your head and food on the table.

And sometimes you wonder about things, about how things take a turn from time to time. Does fate and serendipity and chance and luck and coincidence play any, or a critical, role?

I believe they do. Let me tell you a story.

I wind the clock back to the late 1987 or 88. I remember vividly driving across the city from Glasnevin to Walkinstown to have a chat with a lad from Mullingar in the same game as myself-retailing.

It was a Saturday morning and we discussed the pain in the ass that retailing was. That lad was Michael O’Leary (yes, Ryanair’s Michael O’Leary), and at the time I felt sorry for him because I could see his venture into retailing was not going to end well.

But because it didn’t he was forced to change direction and go back into accountancy, something we had both sworn we did not want to do. He became personal assistant to Tony Ryan and the rest is history.

O’Leary was given a chance and ran with it, made the most of it.

Sometimes described as one of Ireland’s greatest businessmen, people forget that he never actually started a business. Tony Ryan started Ryanair and ignored O’Leary’s advice when O’Leary told him to ‘close it down, it will put you on the road’.

I remember I later hurled abuse at the Late Late Show screen when he went on to try to rewrite history about this venture in retailing at Walkinstown roundabout  in conversation with Pat Kenny.

Anyway, I digress slightly.

I went on to make a good living and was financially comfortable at a relatively young age.

The middle-property crash

And then I lost everything.

The property crash, which started in 2007 and saw steady declines in property values for the next 5/6 years, wiped out over 20 years of my hard work and capital.

A complete wipe-out, just like many people suffered in the Irish economy.

What was I to do? I was 42, hadn’t worked as an employee for over 20 years and had lost all my capital.

I started studying law in my garage at home and at Griffith College, passed the entrance exams-the FE1s- to the Law Society, got an apprenticeship as a trainee solicitor from my own solicitor, and qualified a couple of years later as a solicitor.

That apprenticeship was my first job in over 20 years and the sense of claustrophobia in my little room in a house overlooking a suburban back garden in Dublin was something I had never experienced. I had gone from being a successful self employed business man employing a good number of employees and dealing with contractors and subcontractors on my own building site and running retail businesses for over 20 years, to this.

I had a genuine urge to just go home again, because I thought I would never stick it.

But I hung in there and got used to my new circumstances. And what helped me was the most important lesson that I will tell you about later.

Within one month of qualifying as a solicitor I set up my own solicitor’s practice.

The end?

Now?

Now, I’m on the way back.

Slowly. Step by step. Tiny steps, coming back from the brink.

Hustling and grinding and working hard in my solicitor’s practice.

Now I laugh when someone accuses me of not understanding their pain because I just sit in a nice, warm office wearing a suit and dispensing professional advice. They don’t know my back story.

I chuckle when an employer tells me I don’t know what it’s like to be in a cash flow difficulty, or have a difficult employee who is causing disruption in the workplace.

I laugh when someone tells me they have lost money in a property investment and I don’t really understand, how could I?

Or they are having difficulties with the banks or tenants or employees or suppliers.

I have faced all these difficulties, so I have a good understanding. I have a fair idea, I can assure you, of the ups and downs that life can throw at you.

The most important lesson

But the one lesson I learned from it all? I think I discovered the most important tool anyone can have.

Put succinctly: the right attitude.

There is probably fancy ways of describing what I am talking about but I firmly believe the most important tool you can have in meeting adversity is the right attitude.

Choosing your attitude, and how you react to your circumstances, is within your power. Not the circumstances-you have no power over those-but how you react is within your gift.

This is what Dr. Frankel discovered when he observed the inmates in a number of concentration camps during the second world war. Frankl’s book, “Man’s Search for Meaning” can be summarised in this quotation:

Everything can be taken from a man but one thing: the last of the human freedoms—to choose one’s attitude in any given set of circumstances, to choose one’s own way.”

(I’ve written about Frankl before in this article, in which I write about a common mistake I see many employees make).

Anyway, I hope my story and what you probably didn’t know about me might be useful for you.

And the lesson I learned from my own experience and the experience of concentration camp survivors will serve you well, if you choose it.

Buying Property in Ireland from Abroad-What You Need to Know

buying irish property from abroad

Thinking about buying property in Ireland? You are living outside Ireland? Or you are not an Irish citizen?

Firstly, the good news is that there is no restrictions on non Irish citizens buying property in Ireland; and this applies whether you are an EU national or a non-EU national.

The bad news, however, is that ownership of property does not entitle you to reside in Ireland. The whole area of visas, residency, immigration, work permits, asylum is a complex one and you will find more information about these topics on the Irish Naturalisation and Immigration Service website.

If you intend letting the property, and there is a very healthy residential letting market in Ireland in 2018, the tenant is obliged to withhold 20% of the annual rent and pay it over to the Irish tax authorities, the Revenue Commissioners, unless you have appointed a collection agent. The collection agent-someone like an accountant, solicitor, or estate agent-will be liable for making the tax returns on the rental income but you will have been obliged to register with the Revenue Commissioners for tax purposes prior to purchase anyway.

Property taxes

On purchasing a residential or commercial property in Ireland you will have to pay stamp duty. This is currently 1% on residential properties and 6% on commercial properties and for your solicitor to do your stamp duty return he will need a PPS or tax number for you. If you are non resident and have never had a PPS or tax number you will need to apply for one from the Department of Social Protection. You can learn more about applying for a PPS number here.

Once you buy your property you will have Local Property Tax (LPT) to pay; the amount will depend on the value of the property. You can learn more about local property tax here.

If you buy a commercial property you pay commercial rates to the local authority instead of LPT.

Buying a property in Ireland-some practical steps

One of the first things you will need to consider is instructing a solicitor to act on your behalf. Your solicitor will be able to explain how the conveyancing process works in Ireland, the various steps in a conveyance, the legal difference between a booking deposit and contract deposit, and the legal costs and outlays you will encounter.

You will also be advised to engage the services of a structural surveyor to check the structural integrity of the property, check for signs of pyrite, and check the boundaries on the ground as compared to the Property Registration Authority folio map/filed plan.

You should be aware, too, of the differences between buying a house as opposed to an apartment; the most important one will be that a management company will need to be in place to manage the common areas in a multi unit development such as an apartment development.

Property purchase costs and outlays

When budgeting for your purchase you need to account for:

  • Professional legal fee
  • Value added tax on the legal fee
  • Property registration authority registration fees
  • Structural survey
  • Legal searches to be carried out on closing day to ensure there are no judgments or other unexpected burdens registered on the folio
  • Commissioner for Oaths fees
  • Stamp duty on purchase price

Conclusion

There is no difficulty buying property in Ireland but you will need to obtain a PPS/tax number from the Revenue Commissioners and engage the services of a solicitor early in your search.

Make sure you are dealing with a registered auctioneer/estate agent and that he/she is registered with one of the accredited auctioneering bodies in Ireland and he/she is registered with the Property Services Regulatory Authority.

Good luck!

Avoiding Summary Judgments-a Credible Defence is Required, Mere Statements Are Insufficient

 

summary judgment

You might have come across a particular type of individual since the property/economy crash in 2007/2008.

He, for it was normally a man, was up to his eyeballs in debt and was a type of amateur lawyer who had decided that easy, technical defences could be put forward if and when the crap hit the fan and the lender brought him to Court to seek Judgment against him.

These technical defences, if you could call them that, included allegations of forged signatures on loan documents, claims of being forced to sign mortgages under duress, and so forth.

As well as these ‘defences’, which were bound to fail, you may recall the Kilkenny Trust which was a most capital swizz which promised to make your debt disappear by putting your property into a trust and subsequently leasing it back at a nominal rent, thereby staying in your home and putting it beyond the reach of the big, bad banks who had made a bad decision in giving you the money in the first place.

While some might generously describe this individual as an amateur lawyer others would call him a charlatan, a chancer, a snake oil salesman, a swindler, a huckster, a con artist, a mountebank-choose your poison.

Anyway, these technical defences, if you could call them that, were put forward in Court from time to time. And what happened?

Summary legal proceedings and summary judgment

Summary proceedings are the type of legal proceedings used to pursue a liquidated sum or specific debt. An application for a summary judgment will succeed if it is clear the defendant/debtor has no arguable defence. The defendant debtor, if he claims to have a defence, will seek, on that basis, to have the case heard in a plenary hearing in the High Court, and to avoid judgment.

The test of what is required in respect of the defence has been considered by the High Court in Aer Rianta v. Ryanair [2001] 4 I.R. 607 where it was held that the test was there is no probability of a bona fide defence.

In a 2014 case, IBRC v. McCaughey [2014] 1 IR 749, it was held that it must be clear there is no arguable defence.

The Court of Appeal has now issued a judgment in May 2018 which deals with the issue again in AIB v Stack & Stack [2018] IECA 128. AIB were seeking a judgment against the Stacks for approximately €3,000,000.

The Stacks resisted the application and argued that they had a defence to the claim and wished the case to be transferred to the High Court for a plenary hearing. The basis of their defence included the following claims of the Stacks:

  • Mrs Stack’s signature was a forgery
  • no proof that the company had accepted the terms set out in the letter of loan sanction
  • the loan was not conditional on guarantees being provided
  • Mrs. Stack had no involvement in the day to day running of the company
  • Mrs. Stack had never received any independent legal advice.

The High Court refused to transfer the case for a plenary hearing and held that the mere assertion of an alleged fact, such as the claim of the forged signature, did not make it true and there was no evidence to support the assertion. In like fashion the High Court held that putting forward statements or assertions without supporting evidence or documentation was not enough to prove they had a genuine defence to the claim.

The Stacks appealed to the Court of Appeal and a decision was delivered on 10th May, 2018 in AIB v Stack & Anor.

The Court of Appeal agreed with the High Court and dismissed the appeal.

It held that the Court must be very clear that there is no defence to the proceedings before it will grant judgment. It acknowledged that the bar to have the case sent into a plenary hearing was a low one but the Stacks had failed to clear that hurdle as they were unable to put forward anything but bald assertions and statements.

The Court of Appeal confirmed that there must be a credible defence based on facts. In this case the Court held that the Stacks failed to put forward any evidence to support the facts which they alleged-for example, the allegation of the forged signature.

Conclusion

The bar to overcome to avoid judgment is a low one but the defendant must have a real defence based on facts supported by evidence. Statements or denials or assertions will not be enough.

And if you are approached in a bar by a middle aged man who claims to have found an easy way to avoid judgment for an eye watering debt, treat him with great caution.

Open Offers to Settle Legal Proceedings and Legal Costs-a Warning

open settlement offers

Most people are aware that the cost of legal proceedings, particularly litigation proceedings in the High Court, are incredibly expensive.

I have previously written about certain tools you can use to compromise or settle legal proceedings: Calderbank letter and lodgments. I have also written about the use of ‘without prejudice’ communications to attempt to settle a claim and avoid the attendant legal costs.

A recent High Court decision in O’Reilly & anor -v- Neville & ors [2018] IEHC 228 by J. Binchy shows the danger of ignoring reasonable open offers-that is, offers made in open correspondence.

The facts of the case- O’Reilly & anor -v- Neville & ors

The case involved Mr. and Mrs. O’Reilly suing the defendants for breach of contract arising from defects in a dwellinghouse purchased by the O’Reillys from the defendants. J. Binchy, in relation to the substantive action, held as follows:

In summary, I made an order for specific performance, in favour of the plaintiffs of a building agreement entered into between the parties on 30th March, 2005 (the “building agreement”), and I also ordered that the defendants pay the plaintiffs the cost of renting alternative accommodation since they vacated, in August, 2010, the dwellinghouse constructed for them by the defendants pursuant to the building agreement.

However, he held over the questions of costs until a later date, and delivered his judgment on 18/01/2018.

Winner takes all and costs follow the event

The normal rule is that the winner usually has his costs paid by the losing party. This is set out in the Rules of the Superior Courts, Order 99 rule1(3):

(3) The costs of every action, question, or issue tried by a jury shall follow the event unless the Court, for special cause, to be mentioned in the order, shall otherwise direct.

The O’Reillys naturally argued that they were entitled to have their costs awarded to them against the defendants. However, the Judge can consider offers made by the defendant to try to settle the case early as Order 99 rule 1A.(1)(b) states:

(b) The High Court, in considering the awarding of the costs of any action (other than an action in respect of a claim or counterclaim concerning which a lodgment or tender offer in lieu of lodgment may be made in accordance with Order 22) or any application in such an action, may, where it considers it just, have regard to the terms of any offer in writing sent by any party to any other party or parties offering to satisfy the whole or part of that other party’s (or those other parties’) claim, counterclaim or application.

Open offers

In this case the defendants made 6 open offers in an attempt to settle the case and avoid the costs of a hearing which ultimately went on for 11 days. The Defendants argued that these offers should be taken into account by J. Binchy when deciding costs. Mr. Justice Binchy agreed.

He decided, It follows from this that the defendants should be awarded all costs incurred by them in these proceedings from 18th February 2016 onwards, save only those costs that were incurred in connection with the claim of the plaintiffs for reimbursement of the cost of renting alternative accommodation. The plaintiffs are entitled to an order for all other costs incurred by them in the proceedings i.e. all costs incurred by them up to 18th February, 2016, together with such costs as may be deemed to relate only to recovering the cost of renting alternative accommodation.

He also held: Parties to proceedings are to be encouraged and not discouraged from putting forward proposals which will lead to an early resolution of litigation with all attendant benefits, including significant savings of costs and court time. All of this is recognised by O 99, r 1 A (1) of the Rules of the Superior Courts.

Conclusion

The successful party in legal proceedings cannot always assume he will be awarded his costs as against the other party, particularly if he refuses reasonable efforts to compromise the case.

The Rules of the Superior Courts make provision for this and the High Court judges must have regard for these rules and the conduct of the parties to the proceedings.

You can read the full decision of Mr. Justice Binchy in O’Reilly & anor -v- Neville & ors [2018] IEHC 228 by clicking on the link.