Categories
Property Law Property Purchases and Sales

Planning problems and solutions-an effective 3 step approach

Are you thinking about buying or selling a property in the near future? You need to be aware of something that might delay or frustrate your well made plans: planning.

When you are buying or selling a property one aspect of the transaction which is of critical importance is the situation regarding compliance with planning permission and building regulations.

1. Development carried out?

The first question to address is whether there was any development carried out on the property. If there was development-and development has a specific meaning in the context of the planning laws-there must be planning permission, or the development must have been exempt.

All development which is “pre 1963” (1st October 1964) is exempt. Other exemptions include those set out in section 4 of the Planning and Development Act 2000.

If the development was not exempt and there is no planning permission, there is three possible outcomes:

  1. An application for retention permission. Two problems which arise are a) the length of time it will take to apply and receive the decision and b) the possibility that permission will not be granted.
  2. Demolish the unauthorised structure or cease the unauthorised use.
  3. Rely on the “seven year rule” which is contained in section 157 of the Planning and Development Act 2000 which prevents the planning authority from serving a notice or commencing proceedings on foot of the development.

(4) (a) No warning letter or enforcement notice shall issue and no proceedings for an offence under this Part shall commence—

(i) in respect of a development where no permission has been granted, after seven years from the date of the commencement of the development;

2. Compliance with bye-law approval or building regulations?

The property may be located in an area where bye-law approval was not required. If it is then this will not be a problem.

On the other hand if it is in such an area you can ascertain if a surveyor/architect will say that while bye-law approval was not obtained the development would have complied if approval had been sought. There is also the possibility of an amnesty applying for developments carried out prior to 13th December 1989 for if no notice was served before 1st December 1992 then the Bye-Law Amnesty will apply and the works will be deemed to have been carried out in compliance with the bye-laws.

If building regulations applied to the development and there is no certificate of compliance there is no solution, per se.

3. Architect’s certificate of compliance with planning and building regulations

All developments, even those that are exempt, should have certificates of compliance with planning permission and building regulations. Developments prior to 1st December 1975 should not need a certificate of compliance as it was not the practice to provide such certificates for residential properties at that time.

Conclusion

The planning situation regarding a property has the potential to cause a serious problem for you, regardless of whether you are buying or selling. If you are selling, a little advanced planning (pardon the pun) is strongly recommended.

Categories
Personal Injury Claims

Court of Appeal Slashes High Court Award of €76,000 to €41,000 in Soft Tissue Injury Case

bank of ireland v o'malley

The High Court of Appeal was asked to consider the awarding of €76,000 by the High Court at Dundalk to the injured party in a straightforward soft tissue injury case arising from a road traffic accident. The High Court had awarded €70,000 for the injuries with €6,000 for special damages.

The general damages were broken down into €65,000 for pain and suffering to date and €5,000 for pain into the future. The other party appealed the amount of the award with the injured party cross appealing against the inadequate amount of €5,000 in respect of pain into the future.

The Court of Appeal noted that the case had been conducted with remarkable efficiency by the High Court with the trial lasting about half an hour. The injuries suffered by the injured party involved soft tissue injuries which appeared to have completely resolved within 4 months of the accident.

She was out of work for 6 weeks, got some physiotherapy and took pain killers. At the date of the trial there was no evidence that she would suffer any significant ongoing pain or discomfort.

Court of Appeal

The Court of Appeal noted that damages are meant to be restitutional-that is, put the injured party back in the position they were in before the accident. It noted that pain and suffering had no monetary value but damages were the only way a court can attempt to redress the wrong suffered by an injured plaintiff, but it cannot be restitutional in the true sense.

Damages must be calculated by a conventional sum-that is, what convention and experience society has held to be fair and just for the injury, but the assessment of damages is not amenable to a scientific calculation.

Accordingly, the starting point in assessing damages for any injury is the Book of Quantum of the Injuries Board but it is only a guide and its value may be limited for a wide variety of reasons.

The Court of Appeal noted the merit and value of consistency in awards in personal injury cases generally and the intended introduction of the personal injuries guidelines under the Judicial Council Act 2019 to replace the Book of Quantum.

The Court went on to look at some comparable cases and referred to Nolan v Wirenski which summarised all the relevant authorities in relation to the award of damages. It also held Payne v Nugent [2015] IECA 268 as a useful starting point and the case of Shannon v O’Sullivan [2016] IECA 93 as helpful.

The Court of Appeal held that the Book of Quantum had a significant role to play in this case as the injuries were reasonably defined in terms of categorisation, severity and duration.

It awarded €30,000 for pain and suffering to date and, agreeing with the High Court assessment on this head, €5,000 for pain and suffering into the future. Special damages were agreed at €6,000 therefore the total awarded was €41,000 which substituted the sum of €76,000 awarded by the High Court.

A €35,000 reduction is noteworthy, to put it mildly, especially when it is 50% of the original award.

Regarding costs he invited the parties to make written submissions on the appropriate form of the order to be made. This could be significant as this case was taken in the High Court but the award ultimately made by the Court of Appeal did not agree it was a High Court case.

Takeaway

This is a useful case to read if you are looking for guidance as to how Courts will/should assess personal injury damages. It refers to some other cases and the circumstances where the Book of Quantum can be useful in deciding what is a “conventional sum” and what society holds to be fair and just in attempting to provide restitution for the injury suffered.

Read the full decision here.(Emma McKeown and Alan Crosby and Mary Vocella [2020] IECA 242, High Court record number: 2018/8764P

Categories
Debt Problems | Bankruptcy Property Law

Lay litigant succeeds in having Circuit Court order for repossession quashed by the High Court

A Wexford woman succeeded in the High Court with an application to set aside a Circuit Court order for possession of the family home.

In February 2019 the Circuit Court in Wexford was satisfied that the papers and proofs were in order and granted the order for possession to the lender. Ms Cody claimed that the original mortgage had been entered in her name without her knowledge or consent.

She also claimed her husband had witnessed her signature in her absence and colluded with the lender bank. As a consequence of these allegations she claimed that the mortgage was invalid and any order flowing from that mortgage, for example for possession, was also invalid.

The High Court agreed with her and quashed the Circuit Court order.

The lender bank made a number of mistakes which led to this High Court decision. The first was the bank’s failure, by way of its affidavits, to deal with the issues raised by Ms Cody. Secondly, it failed to explain the issues raised and failed to reply to Ms Cody’s allegations. Finally, it did not cross examine Ms Cody in the Circuit Court with the purpose of establishing her indebtedness. It followed from this that this matter could not be rectified in the High Court at the appeal stage and the finding of indebtedness of Ms Cody could not be established to the High Court’s satisfaction.

High Court decision

The High Court held that the bank had failed to establish her indebtedness and had failed to prove she had executed the mortgage. For this reason it quashed the Circuit Court order.

What the bank needed to do to succeed was to

  1. Prove due execution of the mortgage by Ms Cody
  2. Cross examine Ms Cody in the Circuit Court to establish indebtedness

It did neither of these things.

The bank sought to have the High Court remit the case back to the Circuit Court to be reheard by plenary hearing. The High Court saw this as an audacious application to have a case which was already decided reheard. It said such an action would be “an affront to the proper administration of justice”,

With respect, this refined position simply serves to expose the audacity of the bank’s application. The bank, having failed in its proceedings for an order for possession because it came up short in the requisite proofs, now wishes to rewind the clock to the
very start of the proceedings. It wishes to rerun its application before the Circuit Court, on the basis of new evidence, with a right of appeal thereafter to the High Court. In effect, the proceedings before the Circuit Court and the High Court to date would be set at naught, and Ms Cody would be dragged through the courts a second time. Such a
result would be an affront to the proper administration of justice

High Court, February 2020

To rub salt into the wounds of the bank Ms Cody the High Court made an order allowing Ms Cody, a litigant in person, to recover her expenses of the proceedings in the Cirucit Cout and the High Court as against the bank.

Read the full decision in Bank of Ireland Mortgage Bank v Peter Cody and Heather Cody [2020] IEHC 99

Categories
Defamation Defamation Litigation

The Norwich Pharmacal Order-an Important Weapon Against Online Trolls

Have you ever been abused online? Repeatedly abuses by an online troll? At some point you may have to consider getting a Norwich Pharmacal Order.

A Norwich Pharmacal order is an equitable relief that a Court can grant to force the respondent-for example a social media website platform-to disclose certain information to the applicant. It has grown in popularity and frequency with the growth of the internet and social media platforms.

As you know many users of these platforms use fake or pseudonymous names which gives them protection to wage campaigns of abuse on their targets. You will see the widespread use of such names on Twitter and YouTube, to name but two social media sites, but Instagram and Facebook also have their fair share.

I recently wrote about such a case in the case involving Twitter and Fastway Couriers in which the High Court granted a Norwich Pharmacal order to Fastway Couriers to uncover the identity of the person operating an abusive parody account against Fastway Couriers.

The Norwich Pharmacal is generally sought against an innocent intermediary-the social media company-in order to reveal the identity of the troll who has been engaging in abusive or hate filled posts and activity.

The order will be granted when the court finds it necessary and in the interests of justice. However, there is no legislation or court rules which provides for such an order.

The origin of the order arises from the case of Norwich Pharmacal v Customs and Excise Commissioners. Norwich Pharmacal believed their patent was being abused by other traders who were importers in the UK. They wished to find the names of the importers who were infringing their intellectual copyright and sought the identities from Customs and Excise in the UK.

The Court held that an innocent party is obliged to reveal the names if they have helped the wrongdoer, even if the assistance was unintentional and inadvertent.

Norwich Pharmacal order test

The test to be applied by the High Court in Ireland will involve looking at these factors:

  1. Has a wrong been committed-is there a reasonable basis for this finding?
  2. Is the disclosure of information necessary to allow the applicant take action against the wrongdoer?
  3. Is the innocent third party able to provide the necessary information or documents?
  4. Is the order necessary in the interests of justice?

Conclusion

An application to the High Court will be necessary to obtain a Norwich Pharmacal order. Hopefully you will never have to make such an application.

Categories
Litigation

Why High Court Costs Were Awarded Against Gemma O’Doherty and John Waters in Covid-19 Constitutional Challenge

Gemma O’Doherty and John Waters applied to the High Court for leave by way of judicial review to challenge the constitutionality of certain measures taken by the State to deal with the Covid 19 pandemic. The measures being challenged were legislation and regulations enacted by the Oireachtais.

The High Court refused this application in May 2020 and held that they had failed to provide any expert evidence or facts to support their view that the laws challenged were disproportionate or unconstitutional. The High Court in that decision also noted that O’Doherty and Waters had

no medical or scientific qualifications or expertise, relied on their own unsubstantiated views, gave speeches, engaged in empty rhetoric and sought to draw parallel to Nazi Germany which is both absurd and offensive”.

Unsubstantiated opinions, speeches, empty rhetoric and a bogus historical parallel are not a substitute for facts,

High Court, May 2020

Read the full decision of 13th May 2020 here.

O’Doherty and Waters went back to the High Court to avoid the costs of the judicial review application being awarded against them. The grounds on which they resisted orders for costs against them included

  1. They should have been allowed to proceed on an ex parte basis and the respondents and notice parties should not have been put on notice of their application
  2. The Oireachtais did not have to be separately represented
  3. Their application was in the public interest
  4. They were entitled to a “protective costs order”

The High Court recognised that the principal ground that was contended for by O’Doherty and Waters was that they brought the proceedings “in the public interest” and they should not be penalised for having done so.

The High Court held that “this contention does not stand up to much scrutiny” and that they failed to engage with the case being made by Ireland, the Attorney General, and the Minister for Health.

The High Court determined that the issues raised by the widespread restrictions and the legislation and regulations introduced where important matters of public interest.

There is no doubt but that issues raised by the widespread restrictions imposed by the legislation and regulations in question are important matters of public interest.

However, the manner in which the applicants conducted their proceedings, their failure to consider or answer the case being made against them and to only have regard to their own opinions meant that these proceedings were very far from being in the public interest.

High Court, June 2020

For this reason Mr. Justice Meenan determined that there no grounds for the Court to depart from the general rule that “costs follow the event”. He granted the respondents (the Minister for Health, Ireland and the Attorney General) and the notice parties (Dail Eireann, Seanad Eireann and an Ceann Comhairle) their costs and dismissed the application of O’Doherty and Waters.

Read the full decision of 4th June 2020 here.