Starting a Business in Ireland-Your Legal Obligations and 2 Tips

So, you are thinking of starting a business? And you don’t know what are your legal obligations?

Let’s take a look.

Firstly, consider the legal structure of your business. Will you be a sole trader, partnership, or limited company?

Regardless of which structure you adopt you will need to register with the Revenue Commissioners for taxation purposes. If you set up a limited company, you will be paying corporation tax on your profits; if you do not incorporate a company you will be accounting to the Revenue Commissioners on a self-assessment basis.

You may also need to register for VAT, depending on your business and its turnover, and as an employer.

If you are simply setting up an online business there is no additional regulatory steps you need to take; obviously, you will need a website but you do not need any legal permission or registration for this.

However, if you want to get an Country Code TLD (top level domain) name you will need to apply to IEDR.ie which is the Irish IE domain name registry. This body helps to protect your domain name and provides a process by which domain name disputes can be resolved.

You may also avail of the services provided by Local Enterprise Offices who provide assistance, support, training, and other resources to entrepreneurs and start-ups. The Local Enterprise Office website is worth checking out, too.

From a legal/regulatory perspective you will note that setting up a business is a straightforward task with a minimal number of bureaucratic hoops through which to jump.

The most critical factor in your success will be obtaining clients or customers and providing such a good service or product that your business will grow through a mixture of new client acquisition and repeat business from satisfied customers and good word of mouth.

Once you get a bit of momentum you can look at the most effective ways of promoting your business and acquiring new business. This will almost certainly involve some element of digital marketing, including social media marketing.

Beware of spoofers

You will also need to have an inquiring, learning mind to growing your business and learning from those who have gone before you and made mistakes and successes. You can learn a huge amount from books of successful entrepreneurs, for example. Most of these people made costly mistakes from which you can learn without the need to repeat the mistake.

The power of books in this regard is enormous and if you do not like reading or if you don’t have the attention span to apply your mind to a book for at least one hour per day you are selling yourself short.

But you also run the risk of being misled and misinformed by people who I describe as spoofers; what I am referring to is people who have more knowledge about business or marketing than you do but who could not be genuinely described as expert in the sphere.

There is a qualitative difference between real experience acquired from building businesses over many years and somebody who is now positioning themselves as experts in some sphere of activity when there is no real substance to their claimed expertise, save for them knowing a bit more than you at this stage of your business development.

Don’t fall for it.

Some people have an innate level of cunning or street smarts or lack of naiveté; some people are inclined to naiveté and can be easily parted from their money with a bit of smooth-talking patter. Beware of this problem and if you are inclined to the second category take your time and do plenty of research first before acquiring the services of any supposed expert.

Work that matters

Do work that matters.

There is a qualitative difference between doing the work that matters, doing great work, acquiring clients, growing your business and things that don’t really matter but are inclined to stroke your ego-for example, shallow stuff like mentions, fans, likes, awards that may not amount to a hill of beans.

Don’t fall for this either.

Good luck!



GP Defends Professional Negligence Claim About Breast Cancer Diagnosis in High Court

differential costs order

The High Court decision in Rossiter v Donlon is a useful one to look at when it comes to increasing our understanding of professional negligence, and what you need to prove to bring home such a legal action.

Background

The background to the case is that Ms. Rossiter sued Dr. Donlon for professional negligence arising from his advice and care in a consultation in which she presented with a history of an armpit lump.

Ms. Rossiter noticed a lump in her left armpit and after three months she went to Dr. Donlon. She was 32 years old at that stage in 2014. Dr. Donlon examined her left armpit and could not discern any lump. Dr. Donlon reassured her and told her to return to if the lump returned.

Ms. Rossiter attended Dr… Donlon, and other doctors, for approximately two years for the treatment of eczema but there was no further mention of the armpit lump.

In August 2016 she attended another doctor with a lump on her left breast and was diagnosed with terminal breast cancer.

Ms. Rossiter claimed the breast cancer could have been diagnosed earlier if she was referred to a Breast Clinic in 2014 by Dr. Donlon; she further claimed that Dr. Donlon had carried out an inadequate examination and had failed to carry out a breast examination in 2014.

Dr. Donlon’s evidence was that a breast examination was offered but this was declined, and she asserted that Ms. Rossiter agreed with her on the day that there was no lump present. Ms. Rossiter denied Dr. Donlon told her to return if there was a recurrence of the lump and she claimed that the lump persisted after the September 2014 consultation.

It was clear from the evidence of both parties that there were important conflicts of evidence on a number of points as to what was said at the September 2014 consultation. The Court preferred Dr. Donlon’s evidence on most heads, however, because she had made notes at the time of the consultation and these notes were preferred to the memory recall of Ms. Rossiter.

Dr. Donlon’s notes stated, “declined breast exam”. If the Court was to accept Ms. Rossiter’s evidence over the notes of Dr. Donlon it would meant that this note was a lie and added after the fact. This would be an extremely serious finding for the court to arrive at against a doctor and, furthermore, Ms. Rossiter’s legal team did not make this allegation or put this proposition to Dr. Donlon during cross-examination.

Expert medical evidence was produced by both sides as to the rate of tumour growth in an attempt to arrive at the likely size of the tumour in 2014. The evidence of Dr. Donlon’s expert witness was preferred and, on that basis, it was estimated that the size of the tumour in September 2014 would have been .6cm in size which is below the threshold size of 1 cm to have been discoverable on palpation by a GP at that time.

Negligence?

Mr. Justice Barr had to look at two questions when deciding whether Dr. Donlon was negligent or not:

  1. Should Dr. Donlon have insisted more strongly that Ms. Rossiter attend for a breast examination when it was declined?
  2. Should Dr. Donlon have arranged a review appointment at a later date?

It was decided that where both doctor and patient disagreed about the presence of a lump a further consultation should have been scheduled; however, in this case there was agreement that there was no lump and, therefore, no need to arrange a further consultation.

Mr. Justice Barr also found that even if Dr. Donlon was negligent in failing to refer Ms. Rossiter for a breast exam in 2014 this failure did not lead to any loss or injury.

He also held that, having regard to the rate of growth of the tumour from 2014 to 2016 when it was discovered, it would not have been detectable in September 2014 due to its small size.

Read the full decision here: Rossiter v Donlon [2019] IEHC 105

Secondary School Student’s High Court Application to Halt Disciplinary Rejected

summary judgment

A secondary school student has had his High Court legal action thrown out by the Judge.

The background is the student was suspended from a secondary school over the allegation that he had sold €20 worth of cannabis in the school. The student admitted using the cannabis which was found in his schoolbag on the school premises.

He denied, however, he was involved in supplying the drug.

His application to the High Court was grounded on his assertion that the decision which would be arrived at as part of the disciplinary procedure was contaminated and prejudged as he claimed the school principal had contaminated the process by reason of his making findings of fact as part of the investigation stage.

He also alleged he would not be able to challenge the evidence against him at the proposed disciplinary hearing held by the board of management of the school and claimed an absence of fair procedures to date.

The Judge did not agree.

Premature application

The Judge in this High Court application said the application was premature and came nowhere near meeting the threshold for court intervention.

Justice Simons pointed to the fact that the school disciplinary process had not yet been completed and even when it was completed there was a statutory appeal process open to the student pursuant to section 29 of the Education Act, 1998.

This section 29 appeal involves a full hearing of the case on its merits before a committee of 3 persons appointed by the Department of Education. This should be availed of before heading off to the High Court, said Justice Simons.

The Judge stated that availing of these procedures would be cheaper and faster than going to the High Court and rejected the student’s application to judicially review the proposed disciplinary process. Justice Simons commented that this application could cost six figures in legal costs.

Interestingly Justice Simons also commented that school boards would be very slow to expel students if they are exposed to significant legal costs, even if they won their case, and a decision by him to grant the application wold have a ‘chilling effect’ on school boards of management.

In summary, the Judge said this application was premature and the student should have availed of the cheaper and faster procedures open to him rather than going to the High Court to try to halt the disciplinary.

Interest on Judgment Debts-What You Need to Know

Are you concerned about interest accumulating on a judgment against you?

Or are you a creditor seeking to recover a reasonable amount of interest on money rightfully due and owing to you?

When a debtor obtains a judgment against a creditor he may also be entitled to interest on the judgment amount pursuant to section 22 of the Courts Act, 1981. This interest order is at the discretion of the Judge concerned.

Interest begins to run on the judgment amount (not costs) from the day the judgment is granted.

The discretion of the Court to award interest or not was raised in Reaney v Interlink Ireland Ltd [2016] IECA 238. Judge Finlay Geoghegan, in this Court of Appeal case, described the rationale behind Courts Act interest as follows:

“To put it another way: it is intended to compensate a person for being out of the money awarded from the time he ought to have received it to the date of judgment, provided, however, other facts make it just between the parties to make such an award.”

This Reaney v Interlink Ireland Ltd case is a good one to review to see what the considerations of a Court will be in deciding whether to award interest or not.

The rate of interest was set at 8% per annum from 1989 pursuant to section 26 of the Debtors (Ireland) act, 1840. This rate was reduced from 8% to 2% per annum in the Courts Act 1981 (Interest on Judgment Debts) Order 2016 (SI 624/2016) with effect from 1st January, 2017.

You can read the full decision in the Court of Appeal in Reaney & ors -v- Interlink Ireland Limited (t/a D.P.D.) [2016] IECA 238.

Personal Injury Claims Changes from Jan & April 2019

Some changes have been made to the way in which personal injury claims are to be pursued in Ireland; some of the changes commenced in January 2019, others from April 2019.

Let’s take a look.

Section 8 of the Civil Liability and Courts Act 2004 provides that a letter of claim must be served within 2 months of the date of the cause of action. From January 2019 this has been reduced to 1 month.

The amended section 8 also states that the court hearing the action shall draw such inferences as appear proper from the failure to serve the letter; it was the case that the court “may” draw such inferences.

Here is the amended section 8:

Letter of claim.

8.—(1) Where a plaintiff in a personal injuries action fails, without reasonable cause, to serve a notice in writing, before the expiration of F1 [ one month from the date of the cause of action, ] on the wrongdoer or alleged wrongdoer stating the nature of the wrong alleged to have been committed by him or her, F1 [ the court hearing the action shall ]

( a) draw such inferences from the failure as appear proper, and

( b) where the interests of justice so require—

(i) make no order as to the payment of costs to the plaintiff, or

(ii) deduct such amount from the costs that would, but for this section, be payable to the plaintiff as it considers appropriate.

(2) In this section “date of the cause of action” means—

( a) the date of accrual of the cause of action, or

( b) the date of knowledge, as respects the cause of action concerned, of the person against whom the wrong was committed or alleged to have been committed, whichever occurs later.

Verifying affidavit

Section 14 of the Civil Liability and Courts Act 2004 provides for a verifying affidavit. This section is changed as follows:

 (4A) Where there is a failure to comply with subsection (4) , the court hearing the personal injuries action concerned shall—

(a) draw such inferences from the failure as appear proper, and

(b) where the interests of justice so require —

(i) make no order as to the payment of costs to the party responsible for the failure, or

(ii) deduct such amount from the costs that would, but for this subsection, be payable to the party responsible for the failure as it considers appropriate. ]

These changes came into effect from 28th January 2019.

Personal Injuries Assessment Board (Amendment) Act 2019

This act commenced on 3rd April 2019. Some of the “highlights” include:

  • Section 51C provides that the Court may penalise claimants and respondents as to costs where they have not complied with a request made by the PIAB assessors for additional information or documents; to provide assistance to experts retained by the PIAB or furnish information or documents or co-operate with those experts; or for the claimant to submit himself or herself to a medical examination.
  • A medical report is not now necessary with the application to the Injuries Board to stop the clock from running for the Statute of Limitations; submitting form A is sufficient and PIAB will serve a preliminary notice on the respondent but will not serve the formal section 13 notice and commence the 90 day period until a medical report is received.

Here is the Personal Injuries Assessment Board (Amendment) Act 2019 in full.