59.— (1) Recitals, statements and descriptions of facts,
matters and parties contained in instruments, statutory provisions or statutory
declarations 15 years old at the date of the contract are, unless and except so
far as they are proved to be inaccurate, sufficient evidence of the truth of
such facts, matters and parties.
(2) Where land sold is held under a tenancy (other than a
subtenancy), the purchaser shall assume, unless the contrary appears, that the
tenancy was duly granted; and, on production of the receipt for the last
payment due for rent under the tenancy before the date of the actual completion
of the purchase, the purchaser shall assume, unless the contrary appears, that
all the covenants and provisions of the tenancy have been duly performed and
observed up to the date of actual completion of the purchase.
76.— (1) Subject to subsection (2), a conveyance of land
passes all the claim, demand, estate, interest, right and title which the
grantor has or has power to convey in, to or on the land conveyed or expressed
or intended to be conveyed.
(2) This section takes effect subject to the terms of the
The High Court held that one of these claims was fraudulent
and the other one involved exaggerated injuries and dismissed both claims.
The Judge in this case also criticised a solicitor for
referring the claimants to a medical consultant when a solicitor ‘has no
medical expertise’ and held that the expensive medical reports came into being
for legal reasons and to support the claims, not on medical grounds.
Mr Ali’s case was dismissed because he gave misleading
evidence-for example that Ms O’Connell was in the car-and Ms O’Connell’s claim
was dismissed because the Court did not believe she was actually in the motor vehicle
at the time of the gentle, minimal impact between two cars.
Ms O’Connell’s claim had previously been dismissed in the Circuit
Court as fraudulent.
The Court noted that expert medical witnesses hold a privileged
position in the Irish legal system because they are allowed to give their
opinion rather than make factual observations.
Assessment of damages
The Court also looked at what might have been awarded to the
claimants if their cases had not been dismissed. Mr Ali had been awarded
€17,500 in the Circuit Court but the High Court held a more appropriate sum
would have been €3,000.
The High Court also pointed out where the real power lay in
cases with an ‘impecunious plaintiff’.
37. This case also illustrates why unmeritorious claims
by impecunious plaintiffs are usually settled. It is not because there has been
negligence on the part of the defendant, but rather because settling a claim
costs less than winning such ‘nuisance claims’, as the legal costs incurred in
winning will not be recoverable from the plaintiff. Logic also dictates that
the greater the legal costs being threatened, the greater the economic
imperative to settle for a defendant. So, in this case, with legal costs so
high (say €40,000), compared to the level of the award (€17,500 was awarded to
Mr. Ali in the Circuit Court), a likely settlement (of say €7,000) makes
38. In many of these unmeritorious cases, where the legal
costs dwarf any likely award of damages, a defendant considering settling, is
in reality dealing, not with the merits of the case, but rather with the issue
of who is going to pay the very significant legal costs. Thus, the real issue
for a defendant is:
• whether, in the case of an impecunious plaintiff with
an unmeritorious claim, settling makes economic sense in order to avoid the
defendant having to pay his own very large legal costs even after winning, or
• whether in the case of a wealthy plaintiff with an
unmeritorious claim, settling makes economic sense in order for the defendant
to buy off the very small risk of having a very large legal bill (which may
dwarf the value of the claim itself).
Two sets of legal costs
The Judge also noted that an impecunious plaintiff can inflict
significant costs damage on a defendant in these types of cases.
Plaintiff with fraudulent claim can inflict two sets of irrecoverable costs
40. This case also illustrates that where an impecunious
plaintiff such as Ms. O’Connell takes an action which is dismissed by the Circuit
Court, it seems, as a fraudulent claim, and thereby inflicts irrecoverable
legal costs on a defendant, there appears to be no restriction (e.g. the
requirement to provide security for costs) on such a plaintiff from inflicting
a second set of irrecoverable legal costs on the defendant in an appellate court.
Thus, in this case, the defendant, Dr. Martin (or her insurance company), will
likely have to pay her own legal fees for fighting and defeating a fraudulent
claim on two occasions. On the other hand, the plaintiff, Ms.O’Connell had a
‘free go’, (in the sense that Ms. O’Connell is unlikely to pay the defendant’s
legal costs) not once, but twice, in taking a fraudulent claim, in the hope of
receiving damages or a settlement.
Not good practice for solicitors to refer clients to medical consultants
41. Against this backdrop and in order to ensure that
Medical Reports are not generated without any medical need, it is this Court’s
view that it is not good practice for solicitors to refer clients to medical
specialists. The more usual way in which Medical Reports come to be relied upon
in court cases, is that a client, if and only if he/she has a medical need, is
referred by a person with medical expertise, usually the client’s own GP, who
has knowledge of the client’s medical history, to a Consultant. Only after this
threshold of ‘medical need’ is passed, would it be usual for there to be a
Medical Report which then can be provided to the client’s solicitor for the
purposes of litigation.
Principles in assessing general damages
The Judge looked at the guiding principles in assessing
the following principles derived from decisions of the
Court of Appeal and the Supreme Court, which bind the High Court, the Circuit
Court and the District Court
Fair to the plaintiff and defendant
Minor injuries/modest damages, middling
injuries/moderate damages etc
Award proportionate to other awards and cap on
Award to be reasonable in light of general level
of after-tax incomes
Appropriate scepticism applied to litigants’
Common sense applied to the parties’ claims
Caution when relying on medical and other expert
Ms O’Connell’s claim was dismissed for being fraudulent as her
evidence was not accepted as truthful; Mr Ali’s claim was dismissed for giving
misleading evidence and for exaggerating the claim.
Even if Mr Ali’s claim was found to be valid he would only
have been entitled to €3,000 for general damages which would have been swamped
by the costs of pursuing his case in the Circuit Court and then on appeal to
the High Court.
13. (1) The owner of a relevant property who proposes to
sell the property shall, before the completion of the sale, pay to the local
authority concerned any rates imposed under this Act and accrued interest which
is due and payable in respect of that property.
(2) The local authority concerned shall provide a person
referred to in subsection (1) or a person acting on behalf of the person in
connection with a sale of a relevant property with—
(a) confirmation of any unpaid rates imposed under this
Act and accrued interest at the date of the sale of a relevant property, or
(b) confirmation that there are no outstanding amounts
as the case may be, in such form and manner as may be
(3) In this section—
“sale” includes, in relation to a relevant property, the
transfer of the property by its owner or any trustee or personal representative
of the owner to another person—
(a) in consequence of—
(i) the exercise of a power under any enactment to
compulsorily acquire land, or
(ii) the giving of notice of intention to exercise such
(b) for no consideration or consideration which is
significantly less than the market value of the property at the time of its
It is likely that this provision also obliges a receiver or
mortgagee in possession to pay the outstanding rates on or before a sale.
14. (1) Any rates levied by a rating authority in respect
of a relevant property payable under this Act and any interest referred to in
section 12 which is due and unpaid by the owner of the relevant property shall
be and remain a charge on the relevant property to which it relates.
(2) Notwithstanding section 36 of the Statute of
Limitations 1957, the charge referred to in subsection (1) shall continue to
apply without a time limit until such time as it is paid in full.
(3) This section does not affect—
(a) the liability of any previous occupier for
outstanding rates in respect of which he or she is primarily liable, or
(b) the functions of the rating authority concerned under
any other enactment to collect any outstanding rates from the occupier or
occupiers primarily liable.
Section 7 of the Local Government Rates and other Matters
Act 2019 provides for set off of rates against any money owing by the local
authority against any money due to the local authority.
Discharge of rates by set-off
7. Where a sum is due to any person by a local authority
and, at the same time, a sum is due to such local authority by such person in
respect of rates the former sum may be set off against the latter either, as
may be appropriate, in whole or in part.
12 provides for interest to be charged on overdue rates.
Landlords and lenders would be held liable for rates of tenants
if all of this act commenced without amendment. There was significant lobbying,
however, with the result the the act will be amended before coming into effect.
The Minister for Housing, Planning and Local Government has recognised that if
it came into law without amendment there may well be significant unforeseen and
The most likely change is to ensure that landlords and banks
are not liable for outstanding rates of tenants, but this remains to be seen.
Watch this space.
A contract for the sale of land in Ireland must be evidenced in writing. The situation is similar in the UK where a contract for the sale of land must be signed by, or on behalf of both parties.
An interesting decision has been handed down by the County Court in Manchester where a dispute arose concerning the sale of a piece of land near Lake Windermere.
The proposed purchase of the land saw email correspondence being exchanged between the solicitors for buyer and seller.
The price of £175,000 was proposed by email by the solicitor for the vendor and this was accepted by the purchaser’s solicitor, by email. Subsequently the vendors decided they wanted £200,000 for the property and their solicitor stated there was no enforceable contract to sell for £175,000 as the terms were not signed by, or on behalf of, both parties.
Manchester Crown Court had to decide whether the email signature block was sufficient to be accepted as a signature by the solicitor for the buyers and decided that the intention with the signature block in the email was to connect the name to the email and bind the contract between the parties.
Accordingly the Court found there was an enforceable contract and the email signature was sufficient to form a contract.
Do you think the social media sites do enough when it comes to the offensive material that is published on their platforms?
Do Facebook and Twitter, for example, act swiftly (or at all) to remove the hate speech and racist stuff that is on full view courtesy of various keyboard warriors hiding behind fake names and flags?
The Court of Justice of the European Union has just handed
down an interesting decision in a case taken against Facebook Ireland. The case
I am referring to is Eva Glawischnig-Piesczek v Facebook Ireland Limited Case
C-18/18, Court of Justice of the European Union, with a decision delivered on 3
What the ECJ decided
The European Court of Justice has held that Facebook can be ordered
by EU national courts to remove or block access to defamatory material-defamatory,
that is, in the eyes of the national court of the EU member state.
There is a further significant outcome to this decision: a
national court’s decision that material should be removed means it can be
ordered to be removed in another country even if, in that other country, the
material is not defamatory or illegal.
Eva Glawischnig-Piesczek v Facebook Ireland
Ms Glawsicnig-Piesczek is an Austrian politician who
requested Facebook remove certain comments about her made by a user on
Facebook. The Supreme Court in Austria referred the case to the European Court
of Justice as it held the comments to be illegal and defamatory.
The consequences of the EU Court decision
Social media platforms can be ordered to remove
or block access to identical information declared unlawful
They can be ordered to remove equivalent information
deemed unlawful or defamatory
The decision applies on a worldwide basis-that
is to say if it is deemed unlawful in Austria, for example, the comments cannot
be published on Facebook UK or Facebook Ireland.
As a consequence of this decision the Supreme Court in Austria
now has the power to decide on where and how the material is to be removed. This
remains to be seen but the Austrian Supreme Court now has the authority to
order Facebook to remove the comments on every Facebook platform worldwide and
this was one of the questions referred by the Supreme Court in Austria.
This is good news for the user of the platform and gives an
individual more power to ensure illegal or unlawful comments are not published anywhere
and there is no getting around the order of a national court to remove illegal
This is a significant increase in the power of the user of
social media platforms and places far greater obligations on the social media
companies such as Twitter, Facebook, Instagram, YouTube, etc.