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Irish Legal News: 1st September 2016

Latest News
High Court: AIB entitled to recover more than €6m from company secretary
Cabinet fails to agree on appeal against Apple tax ruling
EU proposals for common corporation tax base to be brought forward
NI: Bar of NI secures home for specialist mediation centre in Belfast city centre
NI: Concerns raised over political vetting of FOI requests
NI Blog: Can we have an NI-specific campaign to defend workers' EU rights?
NI: MSM blood ban officially lifted from today
UK: MPs call for new employment safeguards amid reports of pregnancy discrimination
And finally… pants

Events, CPD & Courses
NI: Law Society Charity Golf Day (Thu 1 Sep)
Conference: State Accountability for Vulnerability (Fri 9 Sep)
CEAM Arbitration Tribunal Secretaries Course (Thu 22 Sep)
The EU Social Market Economy: Challenges and Opportunities (Fri 23 Sep)

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High Court: AIB entitled to recover more than €6m from company secretary

The High Court has refused to remit a summary judgment of more than €6 million to plenary hearing, because the secretary of the company against which the judgment was made could not prove Allied Irish Bank (AIB) had been negligent in failing to provide him with independent legal advice when he signed a guarantee for the full indebtedness of his company.
The High Court proceedings before Justice O’Regan involved a challenge by Mr Kenneth McMorland to the summary judgment of €6,091,208 awarded to AIB in June 2014.
Foresthaze Developments Limited
Mr McMorland, a tax consultant and company secretary, was also the promoter and CEO of Foresthaze Developments Ltd.
Initially Mr McMorland signed a guarantee commensurate with his shareholding of 14% in this company, and that partial guarantee was executed on 25th October 2006.
He subsequently signed a full guarantee for the full indebtedness of the company on 26th October 2006 following an amended letter of sanction which was also signed by him.
One of the grounds on which Mr McMorland sought to remit the matter to plenary hearing was because he wanted to examine or cross-examine Margaret O’Donnell. This was because of a representation made by Ms O’Donnell to Mr McMorland, that he agreed to sign the full guarantee of 26th October 2006.
AIB accepted that Mr McMorland’s evidence in this regard must be taken at its height so, according to Justice O’Regan “the need to examine or cross-examine Ms O’Donnell did not arise… and could not possibly be a basis to adjourn the matter for a plenary hearing”.
The issues arising in the High Court were summarised by Justice O’Regan:

"(1) In what circumstances might summary judgment be afforded, or should it be adjourned for summary hearing.
(2) The full guarantee and the lack of legal advice in advance of that, and representation by Ms McDonnell. 

(3) The fact that Mr McMorland was not requested to secure independent legal advice nor does he waive same in advance of the full guarantee. 

(4) Mr McMorland also suggests that if he had known about the restructuring in February 2010 he would have orchestrated a set of circumstances whereby that would not come about. 

(5) He also says that the need for independent legal advice was a condition precedent within the letter of loan offer".
Firstly, Justice O’Regan considered ADM Londis Plc -v- Arman Retail Ltd [2006] IEHC 309 and McGrath v. O'Driscoll [2006] IEHC 195.
Accordingly, Justice O’Regan stated that the conversation between Mr McMorland and Ms McDonnell would be taken as fact.
Non est factum
Turning to the issue of non est factum, Justice O’Regan considered Irish Bank Resolution Corporation v. Quinn [2011] IEHC 470 and Saunders v. Anglia Building Society [1971] AC 1004.
The aforementioned cases established that  “a person seeking to raise the defence of non est factum must prove (a) that there was a radical or fundamental difference between what he signed and what he thought he was signing; (b) that the mistake was as to the general character of the document as opposed to the legal effect; 
and (c) that there was a lack of negligence i.e. that he took all reasonable precautions in the circumstances to find out what the document was.”
In Quinn, the Court posed the question, “what could be more negligent than willy-nilly signing formal legal documents without giving any thought as to their effect?”
In relation to the document and the fact that AIB claimed that Mr McMorland was advised that this was short term, Justice O’Regan said “there was no evidence before the Court that he corresponded subsequently with the Bank seeking confirmation that the full guarantee had terminated and, in fact, the documents which he signed at the time clearly made it obvious to him that it was a full guarantee and there was no time limit actually involved”.
In relation to the assertion of the non es factum or that he understood that he was signing a guarantee of short duration, Justice O’Regan found that there was no basis for this assertion.
Special conditions
Mr McMorland referred to Irish Bank Resolution Corporation Ltd v Cambourne Investments Inc & Ors [2012] IEHC 262, submitting that “the effect of a condition precedent for the benefit of both parties not being met is that the contract of loan on the two facility letters, which includes the guarantee on the facility letters made by Peter Curistan and Century City, does not come into operation.”
Applying the test that was also applied in Maloney v Elf Investments Ltd [1979] ILRM 253, Justice O’Regan stated that there were two matters to be considered: (1) the term must be of its nature exclusively for the benefit of one and, (2) it must be severable.
Furthermore, in Bank of Scotland v. Fergus [2012] IEHC 131 it was held that the purpose of obtaining a signature was to obtain certain information by which the bank sought to exclude potential defences to the entitlement to enforce the guarantee against the defendant.
Justice O’Regan was satisfied that it was for the benefit of the bank and that the bank was entitled to waive it, and it was severable from the balance of the document.
Accordingly, Justice O’Regan did not accept that the restructuring in 2010 was any valid ground to adjourn the matter for plenary hearing, as Mr McMorland could not have created any difficulty in that restructuring.
In relation to the assertion that there was a condition precedent requiring either independent legal advice or a waiver in respect of the guarantee of the 26th October, Justice O’Regan held that these were actually “special conditions… for the benefit of the bank”.
As a result, Justice O’Regan held that the matter could “be disposed of on a summary basis” and refused to “adjourn the matter for plenary hearing”.
AIB was entitled to judgment in the sum of €6,091,208 in addition to its costs.
  • by Róise Connolly for Irish Legal News
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Cabinet fails to agree on appeal against Apple tax ruling

Finance Minister Michael Noonan (pictured) yesterday failed to persuade his Cabinet colleagues to back an appeal aimed at overturning the European Commission's €13 billion tax ruling against Ireland and Apple.

There was no agreement between members of governing Fine Gael and their Independent Alliance coalition partners at the end of yesterday's Cabinet meeting.

Independent TD and Children's Minister Katherine Zappone has suggested creating “a role for the Oireachtas and the public accounts committee” in deciding the Government's response to the major ruling.

Speaking after the meeting, she said: “Given the complex issues involved, it would have been wrong to rush into a decision today.”

Dr Zappone added: “Over the past 24 hours I have consulted independent experts in the area of taxation, campaigners and the Minister for Finance, Michael Noonan.

“I welcome the fact that the Taoiseach and Cabinet colleagues have recognised my concerns and are allowing time for the issues to be further explored and addressed.”

Sinn Féin party whip Aengus Ó Snodaigh has written to Ceann Comhairle Seán Ó Fearghaíl and other whips to request a recall of the Dáil to debate the ruling, The Irish Times reports.

A similar push by the Independent Alliance for a Dáil recall was reportedly resisted at yesterday's Cabinet meeting.

A further meeting focussed on the tax ruling will take place tomorrow.

Meanwhile, Apple is reportedly instructing London firm Freshfields Bruckhaus Deringer on its own appeal against the ruling.

Andreas von Bonin, a Freshfields partner in Brussels (pictured right), is expected to be heading up the Apple team.

The Lawyer reports that Apple is speaking to a number of Irish firms to be instructed alongside Freshfields and is also involving US firm Gibson Dunn & Crutcher.

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EU proposals for common corporation tax base to be brought forward

Revised proposals to establish a common system for calculating the tax base of businesses operating in the EU are expected to be brought forward by the European Commission in November.

The Common Consolidated Corporate Tax Base (CCCTB) was first proposed in 2011, and the Commission announced in June 2015 that it would bring forward more detailed proposals in 2016.

Now the Commission is planning to use its recent Apple tax ruling to reinforce the case for a common set of EU-wide corporation tax rules.

Proposals are expected to be tabled in November, the Irish Independent reports, and are widely expected to make it further than the largely-abandoned proposals from 2011.

The Commission states: "The CCCTB offers a holistic solution to the current problems with corporate taxation in the EU. It would greatly improve the business environment in the Single Market, by making it simpler and cheaper for companies to operate cross border.

"At the same time, it could serve as a powerful tool against corporate tax avoidance by removing the current mismatches between national systems and fixing common anti-avoidance provisions."

A public consultation on the CCCTB closed in January 2016 after receiving 175 contributions and 28 other documents.

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NI: Bar of NI secures home for specialist mediation centre in Belfast city centre

The Bar of Northern Ireland has taken up a 4,000 sq ft space in Belfast City Centre to provide the base for Northern Ireland's first specialist mediation centre.

The new facility will be based in The Boat, a 14-storey building in Queen's Square close to the Bar Library and the Laganside Courts, following a letting facilitated by CBRE.

David Mulholland, chief executive of The Bar of Northern Ireland (pictured), said: “We are thrilled to embark on this new relationship with CBRE, The Boat is a wonderful space with the prestige and location expected of a top class mediation centre.

“This development is a positive step to offer local businesses and individuals’ quality, local dispute resolution. Successful mediation allows parties to mutually arrive at a blend of legal and non-legal solutions suited to their needs and we will be offering a suite of services.”

David Wright of CBRE added: “The Boat is one of the few prime Grade A office spaces available in Belfast currently.

“It is a state-of-the art space and is extremely well positioned to cater for the unique requirements of this new Mediation Centre for Northern Ireland to a high standard.

“Benefiting from a range modern advantages such as two high-speed passenger lifts, individual comfort heating/cooling on each floor and audio visual access control, the space will undergo a bespoke fit out to the exacting standards of an international mediation facility.”

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NI: Concerns raised over political vetting of FOI requests

A campaign group has raised concerns over the possible political vetting of Freedom of Information (FOI) requests to the Northern Ireland Executive, The Irish News reports.

The Campaign for Freedom of Information said some departments only release responses to FOI requests after approval by ministers' special advisers (Spads) at Stormont.

Maurice Frankel, director of Campaign for Freedom of Information, said: "They run the risk of overstepping the line and being seen to be withholding information which ought to be disclosed.

"They may be taking a risk by putting it through an explicitly political process, and the question is how are they using this process."

He added: "It shouldn't be necessary for ministers or special advisers to be examining responses before they are going out."

The Information Commissioner's Office (ICO) said: "Freedom of Information law doesn't specify a sign-off process for FOI requests. It is up to individual organisations how they deal the internal process."

A spokesperson for the Department of Justice defended its own process: "Responses are only forwarded to the ministerial/press office or Spad for their approval where it is felt they would be affected in some way by the public release of the information requested."

All requests refused on the basis of "prejudice to the effective conduct of public affairs" are approved by Justice Minister Claire Sugden.

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NI Blog: Can we have an NI-specific campaign to defend workers’ EU rights?

Ciaran White (pictured), senior lecturer in law at Ulster University and clinic director at the Ulster Law Clinic, writes on workers' rights in Northern Ireland in the aftermath of the Brexit vote.

One of the many issues that gives rise to concern arising from the ‘Brexit’ vote is what it will all mean for those labour law rights that have been generated or influenced by EU law.

Labour Lawyers recognise freely that EU law has had a considerable influence on the development of UK employment law: prior to 1973 it was still quite common to hear lawyers describe the discipline as the ‘Law of Master and Servant’, reflecting its 19th century Victorian origins, with all the implied power imbalances that that appellation entails. Forty-plus years of Common Marker/EC/EU membership has radically and significantly helped to change the nature and character of that relationship and workers’ protections, even if the fundamental 19th century notion of an ‘agreed’ contract between employer and employee remains at the heart of the legal understanding of the relationship.

Over that period, a wide range of EU directives setting out employment-related rights and entitlements have been promulgated. These include the Acquired Rights Directive, the Pregnant Workers’ Directive, Part-Time and Fixed Term Workers’ Directive, the Parental Leave Directive, the Working Time Directive, the Employment Equality and Equal treatment Directives, the Posted Workers’ Directive, the Directive protecting employees in the event of the insolvency of their employer, TUPE, the Agency Workers’ Directive and the Collective Redundancies Directive, to name some of the more important ones.

And, by virtue of the UK’s membership of the EU, it was required to transpose these (i.e. implement them in domestic law). Where it failed to do so, or did so inadequately, the UK was not acting in conformity with EU law and could be made to implement the EU law correctly: the EU law could be ‘leveraged up’ to secure change in the UK’s law. In that sense, EU law acted as a form of ‘super-constitutional law’, to borrow an idea that I first heard outlined by the late Professor Stephen Livingstone (QUB).

Westminster’s predominant approach to Northern Ireland employment law over the period since Common Market accession was to enact legislation that was territorially confined to Northern Ireland, keeping the employment law statute book separate and distinct from that applying in the rest of the UK, against the day when there would be devolved government. Because it was always anticipated that employment law would be part of the devolved government’s competencies, separating out the NI labour law statutes was intended to make the task of amending them more straightforward and to avoid the difficulties of an NI Assembly having to amend a Westminster statute as it applied to NI, possible and all as this is.

Thus, most of the Directives listed above, have found their expression in NI law as separate NI enactments. Some examples are the Working Time Regulations (Northern Ireland), Agency Workers Regulations (Northern Ireland) 2011, Part-time Workers etc… Regulations (Northern Ireland) 2002, Maternity and Parental Leave Regulations (Northern Ireland) 1999 and subsequent amendments, but the range of NI-specific EU-generated legislation is quite extensive.

Now, we know that employment law is a devolved competency so the content of labour law is a matter for the Assembly. And we are all aware that a majority of NI residents voted ‘Remain’ and all political parties active in NI, other than the DUP, and UKIP, to my knowledge, were pro-Remain. Moreover, a range of these parties – notably the SDLP, the Alliance and Green Parties – are active in the mooted judicial review challenge to the implementation of the Brexit referendum, (along with notable individuals or organisations such as Professor Monica McWilliams and Disability Action’s Monica Wilson along with CAJ).

So, here then is my suggestion: surely there must be scope for a campaign in which all the pro-Remain political parties pledge themselves to preserve the existing EU-generated employment rights as they are found in the NI labour law statute book?

I envisage a campaign in which those political parties publicly commit themselves not to amend or repeal any one of a list of legislative enactments that have been adopted in order to comply with EU law. (Where the EU-generated right has been transposed by a UK-wide enactment, the parties would pledge themselves to preserve the status quo by enacting NI-specific enactment that would replicate the content of that UK-wide enactment in the event of the repeal of the latter by Westminster.)

It would be a type of jointly-made, publicly promulgated, manifesto commitment amounting to a positive step by those political parties. It is a step within their gift to make. It would represent a real and practical effort to protect the interests of the majority in NI who voted ‘Remain’. It might, if political parties were unwilling to sign up to an open-ended commitment to never alter those rights, be limited in the first instance to the mandate of this Assembly, with the idea that it would be open for re-negotiation for each subsequent Assembly mandate.

I accept that it would be very unlikely to have any legal enforceability but it would represent a proactive and mature response to the uncertainty created for NI by the Brexit vote. No doubt it might also flush out those whose angst about the referendum result is no more that pointless handwringing or opportunistic political posturing and who are not prepared to do anything about it.

The campaign would be bested spearheaded, in my view, by the trade unions or perhaps the Northern Ireland Committee of ICTU (NIC-ICTU), and the resultant pledge ‘published’ across real and virtual media. And lawyers like me would be happy to help draft it. Any takers?
  • This piece was originally published on the RightsNI blog.
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NI: MSM blood ban officially lifted from today

Northern Ireland's lifetime ban on the donation of blood by men who have had sex with men (MSM) has officially been lifted today.

The ban has been replaced by a one-year deferral, as announced in June, bringing Northern Ireland in line with England, Scotland and Wales.

Men whose last sexual contact with another man was more than 12 months ago will be free to donate blood if they meet the other donor selection criteria.

Men who have had anal or oral sex with another man in the past year, with or without a condom, will still not be eligible to donate blood.

The policy change follows a Court of Appeal ruling in March, which overturned the High Court's previous decision that the blood ban was irrational and infected with apparent bias.

Health Minister Michelle O'Neill (pictured) said: “As Health Minister my first responsibility in this matter is patient safety.

“Surveillance data from England, Scotland and Wales and survey evidence from across the UK have provided assurance that the risk is lower with a one-year deferral. My decision is based on the evidence regarding the safety of donated blood.”

The change will be implemented by the Blood Transfusion Service (NIBTS) from today and means the criteria will be in line with other groups who are deferred from giving blood for 12 months due to infection risks associated with sexual behaviours.

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UK: MPs call for new employment safeguards amid reports of pregnancy discrimination

The UK House of Commons’ Women and Equalities Committee has called for women in the UK to have protections similar to those in Germany after a “shocking” increase in workplace pregnancy discrimination over the past decade.

The committee's report recommends changes to health and safety practices, preventing discriminatory redundancies and an increase in protection for casual, agency and zero-hours workers.

Research carried out by the Department for Business, Innovation and Skills (BIS) and the Equality and Human Rights Commission (EHRC) revealed that pregnant women and mothers now face more discrimination at work than they did a decade ago.

Eleven per cent of women reported being either dismissed, made compulsorily redundant when others in their workplace were not, or treated so poorly they felt they had to leave their job. The committee's report urges the government to change the law to give new and expectant mothers additional protection from redundancy. It recommends implementation of a system similar to that used in Germany under which such women can be made redundant only in specified circumstances.

Committee chair Maria Miller (pictured) said: "It is difficult to accept the EHRC and government's characterisation of this as merely about enforcement and we are persuaded by the evidence that additional protections against discriminatory redundancies are needed."

The committee also heard evidence that there is a clear need for new and expectant mothers who are casual, agency and zero-hours workers to be properly protected. The committee found that women in this group are more likely to report a risk or impact to their health and welfare than other types of worker; more likely to leave their employer as a result of health and safety risks not being resolved; and less likely to feel confident about challenging discriminatory behaviour.
Ms Miller added: "We heard concerning evidence about the experiences of pregnant casual, agency and zero hours workers. While we understand the reason they do not have the same day one rights as employees, employers should not be able to avoid affording regular, long-term workers the same basic rights as employees because they have a different contract type."

The committee recommended that paid time off for antenatal appointments is extended to all workers after a short qualifying period and that the government urgently review the pregnancy and maternity-related rights available to casual, agency and zero-hours workers.

Caroline Waters, deputy chair of the Equality and Human Rights Commission said: “This important report shines a light on an issue of increasing concern. We urge the government to raise its game and work with greater vigour to tackle the problem or risk hundreds of thousands of women continuing to suffer discrimination at work every year.

“We are pleased the committee has adopted our recommendations to improve access to justice calling for an extension on the three month time limit for tribunal claims, and tackling the barriers caused by high tribunal fees.

“We also support the call for stronger day one rights for parents such employers offering all jobs flexibly unless there is a reasonable justification not to.”
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And finally… pants

A bungling burglar was busted after his burger boxers made a strong impression on his victim.

Darren Machon, 39, was jailed for two years and 10 months after breaking into a woman's home in South Wales.

She caught sight of his Topman boxers - with a pattern of cartoon hot dogs, chips, doughnuts and hamburgers - as he was rummaging through her cupboards in the early hours of the morning.

Though Machon escaped, her identification of his underwear eventually led to his arrest and conviction.

The boxers were brought into court and held up at his sentencing in Cardiff Crown Court for Judge Recorder Lucy Crowther to see.

Detective Constable Darren Bowen said: "The witness in this case and also the officer who recognised the underpants also deserve credit as it was their vigilance and attention to detail which no doubt ensured that that Darren Machon was linked to the burglary."
  • Contributions from ILN readers to our "And finally" section are welcome – they should be sent to:
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Events, CPD & Courses

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NI: Law Society Charity Golf Day

Members of the Law Society of Northern Ireland are invited to enter the Charity Golf Day which will take place on Thursday 1 September 2016 in aid of CLIC Sargent. Further details of the day and an entry form can be downloaded by clicking below.

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Conference: State Accountability for Vulnerability

The Socio-Legal Research Centre in the School of Law and Government, Dublin City University is hosting a conference on September 9th.

The theme of the conference is "State Accountability for Vulnerability. The purpose of the conference is to analyse the response of the State to present and historic vulnerability caused or exacerbated by public policy. We hope to identify how people can become vulnerabilised by public policy and examine how the State can acknowledge and remedy that impact. The conference will bring together academics, practitioners, judges, politicians, representatives from NGOs and other civil society organisations.

Registrations is free but mandatory for organisational purposes. Full details are available here.

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CEAM Arbitration Tribunal Secretaries Course

The Irish Chapter of the European Court of Arbitration in association with the UCD Sutherland School of Law offers the option to become an accredited tribunal secretary on 22/9/16. Prospective attendees are invited, prior to registration through eventbrite, to email to establish whether their professional experience and academic background would make this course suitable for them. Course faculty includes Professor Brian Hutchinson, UCD Sutherland School of Law, Bruno Herbots, partner at Noble Solicitors, Dublin, Aimee Sweeney B.L, Lucrezia Colonna di Stigliano B.L and Arran Dowling-Hussey.

Thursday, September 22, 2016 from 9:00 AM to 5:00 PM (BST)

Sutherland School of Law, UCD, Dublin

Find out more on EventBrite

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The EU Social Market Economy: Challenges and Opportunities

The Department of Law at Maynooth University is pleased to announce the conference 'The EU Social Market Economy: Challenges and Opportunities', which will take place on Friday 23rd September 2016.

Speakers include: Prof. Sybe De Vries (University of Utrecht), Prof. Dagmar Schieck (Queen's University Belfast), Dr Egle Dagilyte (Anglia Ruskin University), Prof. Blanaid Clarke (Trinity College Dublin), Dr David Mangan (City University London), Dr. Clemens Rieder (Lancaster University), Dr. J. Jorge Piernas Lopez (University of Murcia).

The overall goal of the conference is to discuss the extent to which social rights are protected and promoted in different fields of EU law. The conference will be convened by Prof. Michael Doherty and Dr Delia Ferri, and is the first of few different initiatives that centred on the meaning of the "social market economy" objective specified in Art. 3 TEU.

Attendance is welcomed and encouraged from researchers, academics, practitioners and postgraduate students.

To express your interest, to RSVP or to receive further information please email Dr. Delia Ferri at

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