LATEST NEWS

15/04/2024

Barbara Delaney COMREG consumer rights advocate on RTE re EIR policy to obfuscate complaints

“people don’t waste their own time trying to raise issues that are not important to them..

they want to be able effectively and quickly deal with the issue .. people don’t take complaining lightly in sense that it takes time and it takes effort”

Either a company engages constructively with complaints and acts bone fides or they chose to force their consumer into years of expensive litigation adopting a strategy of deny and delay and lawfare.

10/04/2024

The virtues of a paperless office cannot be overestimated and Caroline Fanning Solicitors like many other legal firms aspire to this as it leads to greater efficiencies and time management. It also (as per article below yesterday on the Daily Mail) acts as a wellbeing tool to combat stress:

“Analysis revealed that while all reported a higher level of anger after receiving the insulting comments, participants who threw away or shredded their written thoughts quickly returned to their initial state of calm.” Of course it goes without saying to scan the documentation to your internal systems prior to shredding it..

https://www.dailymail.co.uk/news/article-13289957/Scientists-reveal-surest-way-stop-feeling-angry-stressful-situations.html

09/04/2024

Now retired Susan Redmond (previously working as a sterile technician in the Central Sterile Services Department (CSSD) of Tallaght Hospital in Dublin) wins her appeal against the Circuit Court dismissal of her personal injury claim for a work related accident resulting in hand injuries to her. The High Court of Ireland held Tallaght Hospital was 2/3rd liable and Ms Redmond 1/3rd liable with the parties having already agreed quantum subject to liability issue.

“I am satisfied for all these reasons that, on the particular day in question, the common law duty of care not to expose the plaintiff to unnecessary harm was breached by the defendant. In addition, owing to the insufficiency of storage space provided, I am satisfied that the plaintiff has established material breaches of the following provisions of s 8(2) of the Safety, Health and Welfare at Work Act 2005:

–          (a) Managing and conducting work activities in such a way as to ensure, so far as is reasonably practicable, the safety health and welfare at work of its employees;

–          (c) Ensuring, so far as is reasonably practicable, the … provision … [of storage] plant and machinery that are safe and without risk to health;

–          (e) Providing systems of work that are planned … and revised as appropriate so as to be, so far as is reasonably practicable, safe and without risk to health;

–          (h) Determining and implementing the safety, health and welfare measures necessary for the protection of the safety, health and welfare of its employees when identifying hazards and carrying out a risk assessment.”

07/04/2024

RTE’s David McCullagh recent interview with Justice Minister McEntee on Hate Speech draft legislation – (Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022 to give effect to Council
Framework Decision 2008/913/JHA of 28 November 20081) – referred to Ireland’s status as the only “common law” country in the EU which he said was “judge made law” with the inference that any such legislation may be interpreted differently by different Judges. This is a feature of the common law where so many Judges have now said so much (from 1204 onwards).

The Bill contains the following provision

“Subject to subsection (3), in any proceedings for an offence under section 7 or 8, where it is proved that the person communicating the material concerned— 
(a) knew what the material contained,
(b) understood the meaning of the material, and
(c) made the material available on a platform that is or may be accessible by the public or a section of the public [sic this is the only ground where the  presumption may be rebutted in ss(3)*]

it shall be presumed that the person intended to communicate the material to the public or a section of the public.”

The Bill is silent as to what standard the above personal “knowledge and understanding” is to be judged by ie objective or subjective.

The late Supreme Court Justice Henchy in one of last judgments (relating to defamation law) before retiring in 1988 emphatically rejected the notion of a Court being persuaded  only by a persons’ “subjective beliefs” (presumably on the basis the motivation for these subjective beliefs cannot be fully relied upon or trusted where that person has skin in the game so to speak):

“I have no difficulty in rejecting the submission, which has only slender judicial support, that the occasion is one of qualified privilege if the person making the communication honestly believes that the person receiving the communication has a duty or interest in receiving it. I cannot believe that the guarantee in Art. 40.3.1 of the Constitution that the State will protect, and, as far as practicable, by its laws defend and vindicate the personal rights of the citizen, would be effectuated if a right to defame with impunity is recognized on such a purely subjective basis. An occasion of qualified privilege is to be given recognition only to the extent that it is necessary under Art. 40.6.1 to recognize, on an objective basis, the right to express freely convictions and opinions. The constitutional priorities would be ignored if the law considered an occasion of qualified privilege to depend only on the honest opinion of the communicator as to the existence of a right or duty in the other person to receive the communication. The constitutional right to one’s reputation would be of little value if a person defamed were to be deprived of redress because the defamer honestly but unjustifiably believed that the person to whom the words were published had a right to receive the communication.”

The language used in s7(1)(b) of the Bill (“the person does so with intent to incite violence or hatred against such a person or
group of persons on account of those characteristics or any of those
characteristics or being reckless as to whether such violence or hatred is thereby incited”) is similar to that required to establish “malice” in defamation law.  “In a defamation action, the defence of qualified privilege shall fail if, in relation to the publication of the statement in respect of which the action was brought, the plaintiff proves that the defendant acted with malice” (s19(1) of Defamation Act 2009) meaning the alleged defamatory statement must have been made  by the defendant with knowledge that it was false or with reckless disregard of whether the statement was false or not, which is a high threshold to surmount.

*”(3) In any proceedings for an offence under section 7 or 8, an accused person may rebut the presumption raised in subsection (2) by showing at the time of the alleged offence that he or she did not know the material communicated would be made available to the public or a section of the public.”

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5/4/2024

The conscience of the Court manifested itself in the recent judgment of His Honorable Justice Garrett Simons in discharging an order for discovery made by the Deputy Master of plaintiffs’ medical records to the defendant on the basis that it was insufficient to order discovery of such confidential sensitive documents solely on foot of references to medical reports commissioned by the defendant. The learned High Court Judge stated the Court would need sight of the actual reports themselves to enable the Court review the contents thereof and make a judgment as to the relevance and necessity by reference to the pleadings of disclosing medical records/ This case involved a personal injury action said to have resulted in post traumatic stress disorder type symptoms where the plaintiff was then subjected to an incident of domestic abuse (which was disclosed by the plaintiff to the defendant).

04/04/2024

High Court of Ireland refuses to make Isaac Wunder order against Pascal Hosford a retired civil servant whose litigation against the Irish State/certain Ministries seems to stem in part from his wish to raise awareness/impugn certain legislative provisions that permit company directors/shareholders to be treated for tax purposes as self employed persons subject to meeting certain criteria.

“105. It does not appear to me that the background to these proceedings justifies the making of an Isaac Wunder Order at this juncture. Although the plaintiff has long pursued his complaint regarding the treatment of company directors for social insurance purposes, the lion’s share of his dispute on that issue appears to have occurred during the course of his employment. As noted above, that dispute may have been the proximate cause of a number of other disputes, but it couldn’t be said that the plaintiff has habitually or persistently issued proceedings on the company director issue, nor are any of the other features summarised by O’Caoimh J in O’Riordan present. I have, of course, refused to dismiss the 2115P proceedings, insofar as the plaintiff pursues a claim in tort for detriment he alleges that he has suffered for having made a protected disclosure.”

03/04/2024

The long lasting and far reaching consequences of con artistry is seen in recent High Court of Ireland decision where the litigating parties in partnership with each other had drawn down a loan from the ACC in 2008  to successfully protect their Dubai investments “Apparently, he had been a conman, who had sold multiple options to purchase the same floors in the office building. As a result, both the plaintiff and the first defendant stood to lose very considerable sums of money, unless they were able to produce the remaining funds and to sign documents in Dubai, shortly after February 2008.”

The High Court held there was no obligation to account to the partnership for the profits (which were not deemed secret profits) made from these investments (in one case some €200,000 after payment of tax) but liability was confined to the repayment of the loan amount they had used for this purpose/

26/3/2024

High Court of Ireland Justice Denis McDonald today delivered his  “electronic judgment” in collision case between 37-metre long Kirrixhi fishing trawler and large merchant ship chartered by Hua Sheng Hai Ltd.  (229 metres) carrying 44,000 tonne cargo of bauxite to Aughinish Alumina in Limerick on 11/10/2019 off the Kerry coast :

“Taking an overall view of the facts and circumstances leading to the collision between the Kirrixki and the Hua Sheng Hai, I am of the view that a similar apportionment is appropriate here. The Kirrixki, as the creator of the danger, must bear the lion’s share of responsibility for the collision. In contrast, the Hua Sheng Hai was left in a position where it had to react with speed to the sudden danger created by the trawler. While I have found fault on its part, that fault is significantly less blameworthy than the actions of the Kirrixki in taking a blind turn across the path of the Hua Sheng Hai. In my view, an apportionment of liability as to 85% to the Kirrixki and 15% to the Hua Sheng Hai represents a fair reflection of their respective degrees of fault for the collision.”

It would appear that the Department of Transport understanding was that the collision occurred outside of Irish waters with no Irish-flagged vessels involved and the matter “falls to the respective flag states” under international maritime law. ref: https://afloat.ie/safety/mcib/item/44360-investigation-into-collision-off-kerry-coast-last-weekend

However the learned High Court Judge stated in his judgment the parties were satisfied Irish law applied and the Irish courts had jurisdiction.

“Although the collision occurred in international waters, the parties are agreed that Irish law applies to the respective claims advanced by the parties as against each other. In this context, both parties have referred to

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The High Court in Ireland on 21/3/2024 released a separated man in his 50s from Wardship placing his affairs instead under the control of a court approved  decision making representative (DMR ) appointed from a panel of DMRs who was stated to be an experienced social worker.

There was one “uncontested” medical Report before the court which the court said it could safely and “must” rely on.

Is there a risk now of the High Court being held to be unlawfully delegating its powers to the opinions of medical practitioners in this area as the Courts begin to interpret the Assisted Decision Making Capacity Act 2015?

The High Court held in 2015 case of Sandys v Law Society of Ireland Kearns J. where similar issues were argued it was satisfied that the decision making committee had engaged with the submissions of both parties as well as the expert report of Noel Guiden now retired legal costs accountant (which was the only report before the Committee) and it was clear from the minutes (available to the Court) that the Chairman of the committee had been aware and indicated that “it was open to the Committee to deviate entirely from the report if it wished, in light of all the submissions.”

24/3/2024 

An expensive day out for the Irish taxpayer in case of Mr. A an Egyptian national who on 20/07/2020 secured an offer of employment from E-Businesssoft Technologies Ltd. – registered offices at 20 Harcourt Street, Dublin 2 but was refused a visa to enter Ireland.

The Court of Appeal of Ireland ruled his application should be remitted back to the respondent for consideration by a different decision-maker when Irish Court of Appeal ruled “he has succeeded in his appeal. It would seem to follow that he should be awarded his costs to be adjudicated by a legal costs adjudicator in default of agreement” on the basis the Minister of Justice official should have dispossessed him of his erroneous belief that the only deficiencies in his application related to “proof of accommodation in the State and travel insurance only were missing”

” Thereafter, in the undoubted knowledge that the appellant had focused only on his accommodation and travel arrangements (which he believed might be the source of the respondent’s concern), the respondent did not, however, make any attempt to disabuse the appellant of his belief that the difficulties with his documentation lay in the realm of accommodation and travel arrangements. Whilst the appellant did not in his appeal letter specifically ask for other required documentation to be identified by the respondent, in my view, his apparently erroneous focus on matters of travel and accommodation (to which, as I have said, he was unwittingly led by the very opaque nature of the first instance decision reasons) constituted in effect a clarion call to the respondent to put the appellant on the right road, which the respondent did not do.  To my mind, in the particular circumstances of this case it behoved the respondent to do so. …

..the frailties which attach to that decision, to which I have already alluded, namely the inadequacy and effective unreasonableness of the “OC” reason, and regarding the “ID” reason, in the very particular circumstances of this case the failure of the respondent, prior to issuing the refusal decision, to highlight (when effectively invited by the appellant to do so) the deficiencies in the appellant’s qualifications and work experience in relation to the post being offered to him, be that software engineer or software developer, thus thereby depriving the appellant of any real or effective opportunity to address those perceived inadequacies. “

6/3/2024

The referendum for the 39th/40th amendment to the Irish Constitution 1937 is on 8/3/2024. There is merit in introducing a new Constitution as other countries have done as a recent 2024 decision from the Supreme Court of Ireland highlights that only when “money messages” come from Government do rights – many notional/aspirational in value – become effective.

“119.    What is clear, however, is that the operation of these provisions of the 1991 Act (and the amendments effected thereto by the Child Care (Amendment) Act 2011) did involve a cost – and a substantial cost – to the public purse. If the Government had considered that the costs to the public funds of such a proposed legislative measure were likely to be excessive, it could effectively have vetoed the measure by refusing to issue the appropriate money message under Article 17.2. Alternatively, the Minister could have decided not to have commenced the relevant provisions of the 1991 Act as amended. If at any stage after the passage into law and the coming into force of the Act it was considered that the obligations contained in it were too onerous then it could have been amended.”

27/2/2024

"Ryanair tried to get state action over disruptive passengers on their flights...Michael O’Leary claims there’s a sense of impunity’ among passengers and that it is extremely rare for prosecutions to follow in-flight incidents.."
 ref: https://www.independent.ie/business/irish/ryanair-tried-to-get-state-action-over-disruptive-passengers-on-their-flights/a2078130957.html

The American courts have long recognised the vulnerability of people whilst onboard various modes of transport holding that the providers of such transport owe a non-delegable duty to protect their passengers from crew member assaults and thereby safely transport their passengers applying a standard of strict liability (the imposition of liability on a party without a finding of fault) ref Doe v Celebrity Cruises 145 F. Supp. 2d 1337, 1346 S.D. FL, Supreme Court’s decisions in Brockett and Jopes

13/2/2024

High Court of Ireland rule it would be a “hazard to Justice” if trial were to proceed over 40 years after an alleged incident of sexual assault by retired solicitor Walter Beatty against his son Stephen Beatty now a retired medical surgeon when he was a child in the family home. In acceding to the application to dismiss the proceedings brought by the Guardian Ad Litem for Walter Beatty now resident in a nursing home suffering from dementia and a stroke victim the Court noted 2 key witnesses of fact were also deceased. The Court also pondered on whether the Statute of Limitations did apply in circumstances where Stephen Beatty filed a criminal complaint in 2017 and had functioned on a high level academically and professionally.

8/2/2024

Hibbert & Anor v Hall [2024] EWHC 227 (KB) (08 February 2024)

“iv) This does not mean that the court must take at face value and without analysis everything that a defendant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472;;

…..

[22]

The second in time names the claimants’ GP and their treating hospital as respondents and seeks disclosure of their medical records.

iv) Although perhaps secondary to proportionality considerations such as value and complexity, the personal impact of the proceedings on the parties is also a relevant consideration. If the Issues can only be dealt with at trial, that will actively serve and promote the defendant’s interests (including, it is fair to assume, his financial interests). But the claimants will face a long drawn-out process in which their credibility, bona fides and, to some extent, their privacy will be under an attack which they maintain should never have been made in the first place and which has no real prospect of success.

[38]..

The defendant’s own analysis and observations on these topics are of no value because he is not qualified to comment.

..

Given the highly traumatic nature of the event and the multiple times that he has recounted his experiences and heard others recount theirs, it would be surprising if there were not inconsistencies.”

Royal Courts of Justice refuse to permit remorseless people profit from other peoples’ pain. “For these reasons, I find that the defendant has not discharged the evidential burden which rests on him. He has no real prospect, indeed no prospect at all, of success on the Issues and I will resolve them in the claimants’ favour.”

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7/2/2024 Caroline Fanning Solicitors commends the great work being done by the Law Society Psychological Services. In a recent seminar a UK lawyer who bravely opened up about his mental health struggles described one of its impact as “taking three times as long to do a task” when your mental health is impacted adversely.

In EUGENIE HOUSTON v DAVID BARNIVILLE & ORS The Court of Appeal of Ireland held on the 30/11/2020 (Birmingham P delivering judgment for the 3 Judge Court)

“24.     The manner in which the appeal has been pursued gives rise to disquiet on our part. We would instance the fact that almost by way of an aside, the appellant comments that a doctor, who was one of the lay members of the Tribunal, was, she believed very strongly, somebody who should be struck off as a doctor for the conduct that he was engaged in. On a number of occasions, she referred to another lay member, a distinguished academic, in disparaging terms as “Mammy Hyland” or “Irish mammy”, this, prompted by the fact that the lay member in question had a daughter who was practising at the Bar. She repeated a suggestion that a Barrister, who acted as Chairman of the Tribunal, was suffering from dementia. This remark was INSENSITIVE and quite DISRESPECTFUL of those who do suffer from this condition and the families of sufferers. We deprecate in clear terms the way which this appeal was conducted by Ms. Houston.” (emphasis added)

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25/01/2024 Caroline Fanning Solicitors welcomes the Supreme Court of Ireland decision in John O’Meara & Ors v The Minister for Social Protection, Ireland and The Attorney General (Approved) [2024] IESC 1 (22 January 2024) re Widow’s, Widower’s or Surviving Civil Partner’s (Contributory) Pension (“WCP”) payable under Chapter 18 of Part 2 of the Social Welfare Consolidation Act, 2005 (as amended) (“the 2005 Act”)

as follows

“I would make a declaration that s. 124 of the 2005 Act is inconsistent with the Constitution insofar as it does not extend to Mr O’Meara as a parent of the second, third and fourth appellants. I would also make an order of certiorari quashing the decision of the Minister to refuse Mr O’Meara WCP. This is not a complete solution for the appellants since it would require a legislative amendment to positively provide for benefit in their case. It remains a matter for the Oireachtas to consider how best to make provision for benefit consistent with the provisions of Article 40.1 of the Constitution.”

However in view of the case of Murphy v the Attorney General, 1982, IR 241 (challenged the fact they had been paying more tax as a married couple as being unconstitutional under Article 40.1, 40.3 & Article 41. The High court found in favour under under Art. 41.3. for tax years 1967-8 and 1979-80 inclusive)  any laws made by the Oireachtas on foot of the above decision is unlikely to benefit others in analagous circumstances to John O’Meara and his family.

The conclusion of the majority in Murphy that “restitution (sic to the tens of thousands of married couples who also have had income tax deducted from their earnings in this way, i.e. by compulsory deductions from their earnings for transmission by their employers to the revenue authorities) would be inequitable unjust and unreal”

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5/12/2023

Caroline Fanning Solicitors celebrates International Volunteer Day today – in life it is all about what you can give back and do to help others.

“

Hi Caroline,

We wanted to take a moment today to thank you for giving your time, expertise, and advice over the past year. Whether you know it or not, we consider you a volunteer!

Tuesday, 5 December marks International Volunteer Day, a day on which we recognise and celebrate the impact of volunteering on our communities.

To date, nearly 7,700 UCD alumni like you have volunteered in a variety of different capacities – from mentors to board members, testimonial givers to global ambassadors, speakers to social media contributors, reunion organisers to chapter representatives – and more!”

17/11/2023  Ryan Casey deeply moving victim impact statement at late Ashling Murphy’s  sentencing hearing

“I don’t care where you end up…. or happens to you after today…. but you smirked, you smiled, and you showed zero remorse throughout this trial, which sums up who you really are, the epitome of pure evil but one thing is for sure, you will never ever harm or touch another woman ever again and when your day of reckoning comes, may you be in hell a whole half hour, before God even knows you’re dead.”

June 2019
Caroline Fanning Solicitors successfully obtained an interim payment on account on behalf of a Personal Injury client for fees owed from an insurance company from High Court Judge Cross (pursuant to Practice Direction HC71). Every business needs cashflow.
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Dec 2017
Caroline Fanning has written and published a short collection of 16 poems “LOST LOVE AND OTHER POEMS” with the proceeds going to 2 charities Family Carers Ireland and Alzheimers Society of Ireland – available to purchase http://www.alzheimer.ie/Get-Involved/Fundraising/Shop/Lost-Love-Poetry-Book.aspx for €10.00 plus p&p

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The Law Reform Commission in acknowledgement of the valuable contribution made by Caroline Fanning in providing a submission during the research for this project have invited Caroline Fanning Solicitors to the launch of the “REPORT ON HARMFUL COMMUNICATIONS AND DIGITAL SAFETY” in their offices on Tuesday 27^th September 2016.

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Caroline Fanning is speaking at the National Construction Summit in the RDS on 15/6/2016 at 3:35pm on the following topics:-
Building Control Management System
Building Control Regulations
Building Regulations
Commencement Notices
Assigned Certifiers
7 Day Notice
Certificate of Compliance on Completion
Safety, Health and Welfare at Work Act 2005

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Caroline spoke in January 2016 to some members of the Foxrock division of “Family Carers Ireland” advising on issues such as mental health law,  the new Assisted Decision-Making (Capacity) Act 2015 (due to commence mid 2016) which abolishes the Wards of Court office, the need to make a new will where a proposed beneficiary is now suffering from dementia and the Fair Deal scheme and powers of attorney.

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Caroline Fanning Solicitors succeeded on behalf of a client in achieving a 94.1% reduction of outstanding bank debt (corresponding to approx. €800,000.00 written off debt) together with a write off of the banks’ High Court legal fees and outlays. This involvedlegal drafting and advocacy in the High Court to overcome the Courts’ high threshold that “there is a defence” and get the matter to go to a full hearing.

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Caroline Fanning Solicitors succeeded in getting a commercial client removed from High Court proceedings at a very early stage by using an under utilised Rule of Court – see Litigation page for further details.

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Caroline Fanning Solicitors succeeded on behalf of a client in achieving a 100% writeoff of financial condition in a planning permission of over €30,000.00 to NIL

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Caroline Fanning Solicitors succeeded on behalf of a client in rescinding a valid contract for sale for property in excess of €1.5 million allowing them not to proceed with its purchase due to financial hardship

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Caroline Fanning Solicitors succeeded on behalf of a client in securing the safe return of commercial vehicles caught up in an insolvency situation based on retention of title clause

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Caroline Fanning Solicitors has acted in numerous personal injury cases from both a plaintiff and defendant perspective.

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Caroline Fanning Solicitors succeeded in obtaining an Irish Patent and an International Patent from  WIPO on the basis of a one line instruction from a client which involved very extensive research and technical understanding and acquisition of know how

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Caroline Fanning solicitors acted for a client in submitting probate papers claiming “foster child” tax relief allowing property to be inherited tax free from an aunt/uncle (as if taken from a parent with CAT Threshold A applying)

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Caroline Fanning Solicitors succeeded on behalf of a client in a case taken to the Supreme Court to allow additional evidence to be adduced to that already given in the High Court overcoming the very high legal threshold

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Caroline Fanning Solicitors has succeeded in obtaining freezing orders from the Court in family law maintenance cases

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Caroline Fanning Solicitors carried out intellectual property due diligence on behalf of a client which saved them from making a financially detrimental investment

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Caroline Fanning Solicitors successfully defended Hague Convention on Child Abduction taken by the child’s other parent to have the child returned to Eastern Europe

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Caroline Fanning Solicitors successfully negotiated on behalf of clients exit packages in employment law cases where there were allegations of stress and bullying

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Caroline Fanning Solicitors successfully defended a client in the medical profession who was facing disciplinary hearings with no adverse impact on their employment history record/reference