Categories
Personal Injury Claims

Letter of claim in a personal injury action-time period shortened to 1 month

If you claim that somebody caused you an injury and you intend commencing personal injury proceedings against that person you, or your solicitor, must write a “letter before action” to that person. This obligation is set out in section 8 Civil Liability and Courts Act 2004 as follows:

8.—(1) Where a plaintiff in a personal injuries action fails, without reasonable cause, to serve a notice in writing, before the expiration of 2 months from the date of the cause of action, or as soon as practicable thereafter, on the wrongdoer or alleged wrongdoer stating the nature of the wrong alleged to have been committed by him or her, the court hearing the action may—

(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.

You will note that the obligation was to write the letter within 2 months of the accident, or the date of knowledge of the person against whom the wrong was committed.

Changes in 2019

In January 2019, however, a new piece of legislation, Central Bank (National Claims Information Database) Act 2018, section 13 reduced this time period to one month. This section states

13. (1) In this section “Act of 2004” means the Civil Liability and Courts Act 2004 .

(2) Section 8(1) of the Act of 2004 is amended by:

(a) the substitution of “one month from the date of the cause of action,” for “2 months from the date of the cause of action, or as soon as practicable thereafter,”, and

(b) the substitution of “the court hearing the action shall” for “the court hearing the action may”.

(3) Section 14 of the Act of 2004 is amended by the insertion of the following subsection after subsection (4):

“(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.”.

You will note from the above section that the Court “shall” draw such inferences from the failure as appear proper; the previous position was that the Court “may” draw such inferences-that is,

“draw such inferences from the failure as appear proper”.

Conclusion

The failure to send this letter before action within 1 month may lead to the plaintiff being penalised in respect of costs at the subsequent Court hearing.

Categories
Property Law Property Purchases and Sales

Commercial Property Investment-4 Vital Things to Consider

Thinking about buying a commercial investment property? There are a number of factors you will need to consider. 

Here are four important ones: 

1. The tenant

The quality of your tenant is critically important because it will determine how sound your rental income stream will be. Having a major retail brand or franchise as a tenant is a huge advantage over having a one man or woman business.

If there is difficulty in collecting the rent you can certainly go to Court and get a Court order for vacant possession and a judgment for the outstanding rent and costs. But this judgment will be of little value if you cannot enforce it and your debtor simply does not have the money to pay the judgment amount. This is a strong possibility with an inexperienced sole trader.

You will also have incurred your own legal costs and you can be sure your solicitor will want to be paid.

So, a weak tenant carries inherent and obvious risks from the outset.

2. The physical condition of the property

The physical condition of the property is worth considering carefully if you want to avoid a property which will require significant expenditure in maintenance or repair and refurbishment. The type of lease in place will determine who is responsible for repairs and maintenance to the building so this would want to be checked before investing.

3. Location

The location of your investment property is vitally important for a number of reasons. Firstly, from the perspective of selling the property on when you are ready. Secondly, if you have to evict the tenant or he does not renew the lease you will have to find another tenant and the location, if good, will make this a much easier task.

On the other hand the business that was carried on may have been one which relied to a large extent on the business and personal contacts and reputation of the tenant. It may be difficult to re-let the premises if it is in a secondary location and is only suitable for a small number of businesses.

4. The legals

You will need to ensure that all legal, planning, and regulatory matters are in order. This involves checking that good title is being offered, the planning and building regulations/building bye-laws are in order, the terms and conditions of the existing lease, and any rates or management company liabilities have been fully discharged and there will be no unpleasant surprises for a buyer of the building.

Conclusion

Buying a commercial investment property is broadly similar to buying a residential investment property. You are more likely, however, to have a sitting tenant with a commercial property and you may be buying a property that is subject to a long commercial lease-for example for 15, 20, or 35 years.

Categories
Consumer Rights

Discrimination Claim About AIB Campaign Featuring “Abusive Teller Machine” Misconceived But Not Vexatious

The complainant in this case brought a claim under the Equal Status Act, 2000 (amended by the Equality Act, 2004) claiming that a YouTube video campaign of AIB bank, featuring a video entitled “Abusive Teller Machine”, was grossly offensive to men. 

The claim was brought to the WRC (Workplace Relations Commission) which is the appropriate venue for all complaints about discriminaiton in the provision of goods and services.

Was there a service?

However, the first problem this man faced in winning any claim of discrimination was that he had not actually attempted to avail of a service offerd by AIB and therefore was not entitled to bring the claim. That is to say, he did not have “locus standi” to bring the case as he had not been refused any goods or services as part of the AIB marketing campaign.

The bank also claimed Mr. Walsh had no locus standi to bring a claim on behalf of a group (men) and relied on Gloria (Ireland’s Lesbian and Gay Choir) vs Cork International Choral Festival (DEC-S 2008-078) as authority for the proposition that an orginsation or public body could not bring a claim under the Equal Status legislation.

Moreover, the bank claimed that Mr. Walsh did not put forward a prima facie case and failed to discharge the burden of proof on him. This burden of proof required him to show facts from which a reasonable inference of discrimination could be shown. If he could not establish a prima facie case the bank had no obligation to defend it and no case to answer.

The Complainant was unable to put forward any such facts because he did not try to avail of any service of the bank.

The bank also argued that the complaint was misconceived because the WRC could not deal with it if it was made in bad faith or was frivolous or vexatious.The Bank argued that the meaning and scope of the word ‘misconceived’ has been set out by the High Court in Keane v The Minister of Justice (1994)3IR347 wherein this case it was found that a claim is misconceived if it is incorrectly based in law.

Decision

The adjudicator found that the posting of the video on YouTube was not itself an offering of a service but was part of a campaign about financial abuse. No discrimination could have been suffered, therefore, and the adjudicator so found.

Regarding the burden of proof on the complainant it was found that the complainant never sought the service from the bank and could not establish facts from which  prima facie case could be shown.

Regarding whether the claim was misconceived or frivolous the adjudicator found that the complainant felt strongly about the issues he had raised and was genuine in his belief that the campaign was offensive to men.

From a legal perspective “frivolous and vexatious” means the complaint had no chance of succeeding and the complaint was a hardship on the defendant to have to defend something that had no chance of success. 

The bank relied on jurisprudence Thomas Whelan vs The Football Association of Ireland (DEC-S2018-001) in identifying that the meaning and scope of the words frivolous and vexatious were succinctly articulated by a decision of the supreme court by Barrow in Farrelly vs Ireland and ORS (1998)ELR256 which stated that “so far as the legality of the matter is concerned frivolous and vexatious are legal terms. They are not pejorative in any sense or possibly in the sense that Mr Farrelly may think they are. It is merely a question of saying that so far as the plaintiff is concerned if he has no reasonable chance in succeeding then the law says that it is frivolous to bring the case. Similarly, it is a hardship on the defendant to have to take steps to defend something which cannot succeed and the law calls that vexatious”.

The Adjudicator found that the complaint was not found to be vexatious as Mr Walsh had sincerely held views about the matter of which he complained.

But the adjudicator did find that the complaint was misconceived as, according to Keane v The Minister of Justice (1994) 3IR347, it was incorrectly based in law and had no merit and could not succeed.
Read the full decision here.

Categories
Debt Problems | Bankruptcy Property Law

Can a Joint Tenancy Be Severed to Protect the Interest of the Judgment Free Joint Owner?

investigation-of-title

What happens if a judgment mortgage is granted against one owner of a property held as a joint tenancy. How is the other owner affected, if at all?

The High Court looked at this question in the case of ADM Mersey PLC v Bergin and Another [2020] IEHC 3, a decision handed down in January, 2020.

In this case property in Kilkenny was jointly owned by a father and son. 

The son had borrowing difficulties and a lender obtained judgment in 2010 against the son and his wife and registered this judgment as a judgment mortgage on the property jointly owned by the son with his father.

In 2013 the father changed his will to leave the land in question to his two grandchildren.

Then the father and son changed the ownership of the land from a joint tenancy to a tenancy in common. The purpose of this move was to ensure the father’s interest in the land could not be attacked by the son’s creditors as both father and son would now have a clear, divided interest in the property with each one owning a certain percentage. 

Joint tenants versus tenants in common

It is important to understand the significant difference between land owned as joint tenants and as tenants in common.

If land is owned in a joint tenancy by two parties and one passes away the land passes automatically to the other joint tenant by reason of the doctrine of survivorship. However, if the land is owned as tenants in common the interest of the deceased owner can go anywhere he chooses. In this case, the father chose to leave it to his grandchildren. 

The father died and his interest in this property then passed, in accordance with his will, to his two grandchildren.

ADM Mersey plc sought to enforce their judgment and they argued that when they registered their judgment mortgage the property was a joint tenancy and the entire property should have passed to the other joint tenant-the son-when the father passed away.

In effect, they were arguing that the purported passing of the father’s interest to the grandchildren should have been ignored as their judgment mortgage was in place first.

High Court

Mr Justice Allen decided there was nothing wrong with the father attempting to put his interest in the land beyond the reach of ADM Mersey plc. 

He held that the judgment mortgage only attached to the son’s interest in the land, the tenant in common interest.

He also held that the judgment registered against the son did not affect the father’s interest in the land, who was a joint tenant at the time of registration of the judgment.

Also, the judgment mortgage did not attach to the lands at Kilkenny but only to the son’s interest in those lands.

The judgment mortgage did not sever the joint tenancy nor did it prevent the father from doing so.

The severing of the joint tenancy by the father and son in 2013 was effective in creating a tenancy in common and ADM Mersey PLC’s judgment mortgage only attached to the son’s interest as a tenant in common. Thus, the grandchildren’s interest was unaffected.

Takeaway

Even if a judgment mortgage is registered against one owner of a property that is held in a joint tenancy that joint tenancy can still be severed and converted to a tenancy in common. This allows the non debt owing owner to put his interest in the property out of reach of the lender who has the judgment against the other owner.

Read the full decision in A.D.M. Mersey PLC v Bergin & anor, delivered on 14th January 2020 in the High Court. 

Categories
Family Law

The Enforceability of Family Law Mediation Agreements

Mediation agreements are negotiated agreements between the parties in dispute. They are in common use when it comes to separating couples when the relationship has broken down and the parties seek to do the sensible thing and negotiate certain terms to cover matters such as property, maintenance, custody, access, and so forth.

Mediators guide the parties to their own agreement but do not give legal advice and the mediated agreement is not legally enforceable unless an extra step is taken.

The Mediation Act 2017 is important in this connection, however, as section 11(2) of the Mediation Act 2017 states

(1) The parties shall determine—

(a) if and when a mediation settlement has been reached between them, and

(b) whether the mediation settlement is to be enforceable between them.

(2) Notwithstanding subsection (1) and subject to subsection (3), a mediation settlement shall have effect as a contract between the parties to the settlement except where it is expressly stated to have no legal force until it is incorporated into a formal legal agreement or contract to be signed by the parties.

Mediated agreements must be ruled in court in a divorce or judicial separation. However, the court retains its discretion as to whether the agreement makes proper provision and will not rule such an agreement in certain circumstances set out in section 11(3),

where
(a) the mediation settlement—

(i) does not adequately protect the rights and entitlements of the parties and their dependents (if any),

(ii) is not based on full and mutual disclosure of assets, or

(iii) is otherwise contrary to public policy,

or

(b) a party to the mediation settlement has been overborne or unduly influenced by any other party in reaching the mediation settlement.

The Mediation Act 2017 and solicitors

Section 14 of the Mediation Act, 2017 sets out the obligations on solicitors under the act as follows:
Practising solicitor and mediation

(1) A practising solicitor shall, prior to issuing proceedings on behalf of a client—

(a) advise the client to consider mediation as a means of attempting to resolve the dispute the subject of the proposed proceedings,

(b) provide the client with information in respect of mediation services, including the names and addresses of persons who provide mediation services,

(c) provide the client with information about—

(i) the advantages of resolving the dispute otherwise than by way of the proposed proceedings, and

(ii) the benefits of mediation,

(d) advise the client that mediation is voluntary and may not be an appropriate means of resolving the dispute where the safety of the client and/or their children is at risk, and

(e) inform the client of the matters referred to in subsections (2) and (3) and sections 10 and 11 .

(2) If a practising solicitor is acting on behalf of a client who intends to institute proceedings, the originating document by which proceedings are instituted shall be accompanied by a statutory declaration made by the solicitor evidencing (if such be the case) that the solicitor has performed the obligations imposed on him or her under subsection (1) in relation to the client and the proceedings to which the declaration relates.

(3) If the originating document referred to in subsection (2) is not accompanied by a statutory declaration made in accordance with that subsection, the court concerned shall adjourn the proceedings for such period as it considers reasonable in the circumstances to enable the practising solicitor concerned to comply with subsection (1) and provide the court with such declaration or, if the solicitor has already complied with subsection (1), provide the court with such declaration.

(4) This section shall not apply to any proceedings, including any application, under—

(a) section 6A, 11 or 11B of the Guardianship of Infants Act 1964 ,

(b) section 2 of the Judicial Separation and Family Law Reform Act 1989 , or

(c) section 5 of the Family Law (Divorce) Act .

Solicitors need to ensure clients know that mediation is a voluntary process to arrive at a negotiated solution for the parties. Mediation agreements are intended to be binding but it is advisable that any such agreement is not legally binding until it is put into a legal format. For this reason both parties should be advised and encouraged to obtain legal advice before signing the concluded agreement.

The Law Society advises its solicitors to state that such agreements are not legally binding until further steps are taken to give it binding legal effect. Solicitors are advised to insert the following clause in the agreement:

“We are signing the mediation settlement in recognition of completion of our mediation. We understand that, in signing this, we are not entering into a legally binding and enforceable agreement, for which more steps must be taken to give binding effect to our mediation settlement.”

In summary, the Mediation Act 2017 provides that the mediation agreement shall have effect as a contract between the parties unless expressly stated to be otherwise. The Law Society recommends the clause above to ensure this is the case.