Tag Archive for: Solicitor

Win for Publicans in business interruption insurance case!

On 5th February 2021, the High Court ruled that several publicans were entitled to cover under FBD Insurance business interruption policies, for losses suffered because of the Covid 19 pandemic. This was a similar outcome to a case already decided in the UK Supreme court.

Justice Denis McDonald found that a policy sold by FBD covered losses sustained by the pubs having to close due to Covid 19. This ruling is similar to the recent UK Supreme Court decision of 15 January 2021 where the insurance regulator successfully challenged insurers refusal to indemnify certain businesses under business interruption policies.

FBD argued that their policy did not cover the disruption caused by Covid 19 as it never provided for pandemics, however the High Court disagreed, finding that cover is not lost where the closure of the business affected is prompted by a nationwide outbreak of a disease, provided that the outbreak is within a 25 mile radius and is one of the reasons for the closure of the business.

This is a significant ruling for many businesses with similar business interruption policies. It remains to be seen however whether this ruling will be appealed in the near future. Mr Justice McDonald has delayed a decision quantifying the losses suffered by the publicans until a later date and we will be able to update you once this aspect of the judgement is given.

Following the judgement, Insurance companies indicated that they would work with insured clients. Whilst this case was against FBD, the principles apply to all insurance companies. The full text of the judgement can be found here https://www.courts.ie/acc/alfresco/8bfaa5dd-3ea3-4580-979f-0dfb2d8243be/2021_IEHC_78.pdf/pdf#view=fitH

If you are a publican, restaurant or business owner and feel you might be affected by this judgement, you should first read carefully your insurance policy, liaise with your broker and if you have any questions contact our Head of our litigation Lorcan Dunphy at 062 61288 or email ldunphy@dtryan.ie

Protect Yourself against Online Identity Theft

An emerging area of risk in Ireland of which we all need to be aware is Online Identity Theft.

Identity theft is increasingly a problem where transfers of funds between bank accounts is concerned. For Donal T. Ryan Solicitors LLP, we are particularly concerned that our clients should not fall foul of these cyber criminals when they are transferring funds to us.

If you are transferring money electronically to us, you must first verbally verify the bank account details with the solicitor you are dealing with.

One example of scammers taking advantage of solicitors’ clients is where they hack the solicitors’ firm’s e-mail account to find people who owe them money. The scammers then send “chaser” e-mails to these people, pretending to be from the solicitors’ firm, and supplying the bank details – which are in fact the scammers’ own bank details. If the solicitors’ firm’s e-mail signature includes a warning not to transfer funds without confirming bank details verbally by phone, as we include on all our e-mails, the scammers simply delete this warning. Once the money is transferred to their account, the scammers then empty the account. Even worse, because the bank was given instructions to transfer the money by the account holder, the bank is not obliged to get it back.

Prevention is better than cure, so Irish individuals and businesses need to take steps to make sure that neither they nor their customers become the scammers’ next victims. Businesses can take measures to prevent their e-mails from being hacked, from two-factor authentication to data loss prevention, and security awareness training. This use of technology must be supported by well implemented policies and procedures, such as a Password Management Policy and Acceptable Use policies.

On an individual level, in order to protect yourself never use bank details contained in an e-mail without checking them verbally with the solicitor or other person you are transferring funds to. Always ring the person you are dealing with to double check bank details.

What is “proper provision” in a family law case?

What is “proper provision” in a family law case?

When a couple separate or divorce the most frequently asked question posed to a family law lawyer, is what am I entitled to?   The simple answer is a settlement be it by agreement or imposed by Court, that achieves proper provision.

Proper provision is achieved by a Judge weighing up a list of principles and reaching a financial split based on this criterion. The aim is to ensure fairness. As no two marriages are the same and no two marriage breakdowns are the same, no two settlements are the same. The list of criteria to be considered are set out in both the Family Law Act 1995, and the Family Law (Divorce) Act 1996.

These criteria include:

  1. the income, earning capacity, property and other financial resources which each of the spouses concerned has or is likely to have in the foreseeable future
  2. the financial needs, obligations and responsibilities which each of the spouses had or is likely to have in the foreseeable future (whether in the case of the remarriage of the spouse or otherwise)
  3. the standard of living enjoyed by the family concerned before the proceedings were instituted or before the spouses separated, as the case may be
  4. the age of each of the spouses and the length of time during which the spouses lived together
  5. the physical or mental disability of the spouses has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution made by them to the income, earning capacity, property and financial resources of the other spouse and any contribution made by either of them by looking after the home or caring for the family
  6. any income or benefits to which either spouse is entitled by or under statute
  7. the conduct of each of the spouses if that conduct is such that in the opinion of the court it would in all the circumstances of the case be unjust to disregard it
  8. the accommodation needs of either of the spouses
  9. the rights of any other person other than the spouses but including a person to whom either spouse is married

A Court will try to ensure that both parties’ ( and the children’s’) accommodation needs are met, that there is sufficient monies for the maintenance of the parties and the children, that both parties if possible have access to a pension, that there is provision for education including Third Level Education, particularly if the children are near or attending Third Level education.

A settlement can be achieved in either of two ways :

  1. By the parties agreeing between themselves as to what each will take from the assets available, this is known as a separation agreement, consent settlement. If parties attend mediation, as a method of resolving the dispute and reach an agreement, this then needs to be incorporated into a formal legal agreement
  2. If the parties cannot reach agreement, then it will be necessary to issue Court proceedings, and ultimately a  Judge will make the decision.

An experienced family law solicitor, such as Máire McMahon with eighteen years of court experience, will be able to advice a client on proper provision and what is the likely attitude and outcome if a case proceeds to Court.

Consumer Contracts Bill

This issue of insurance reform is a current topic of discussion. This Consumer Contracts Bill is currently making it ways through the Houses of the Oireachtas. It was hoped to that it would become law in 2020, however the talk of a general election might delay its finalisation.

The law aims to make it more difficult for Insurance Companies to refuse to pay a valid claim. The insurers will also have to notify the insured when they plan to settle a claim. Being kept in the dark has been a source of complaints for insured person.

Another change will be that the onus will be on insurers to ask the relevant questions when a consumer or small firm is taking out a policy. This is a reversal of the current situation where the policy holder is expected to anticipate what has to be disclosed.

Our view here in Donal T. Ryan Solicitors LLP is that anything that places a bigger obligation on insurers can only be a good thing.

If you have any queries on the enclosed, or a query on insurance do not hesitate to contact Donal Ryan or Lorcan Dunphy in our Cashel office at 062 61288

Paternity Leave – New Dad – what are your rights?

Paternity Leave- now a statutory entitlement in Ireland
With effect from 1 September 2016 paternity leave is recognised as a legal right in Ireland.

Who is eligible?
An employee considered to be a ‘relevant parent’ of a child will be entitled to 2 weeks’ consecutive leave from their employment to care for their child.
A ‘relevant parent’ includes:
*  the father of the child,
* the spouse/civil partner/cohabitant of the child’s mother
* The parent of a donor-conceived child.
In the case of an adopted child, the ‘relevant parent’ includes:
* The nominated parent in the case of a married same-sex couple or
* The spouse, civil partner or cohabitant of the adopting mother
* a sole male adopter

Only one period of leave will apply where there are multiple births or adoptions at the same time.

In the sad case of a stillbirth or a miscarriage following the 24th week of pregnancy, the entitlement to paternity leave and benefit remains available, within 26 weeks from that time, provided that the employee satisfies the PRSI requirements.
Notification Requirements.

The employee must notify their employer at least 4 weeks before the date on which they wish to take paternity leave. A medical certificate setting out the expected date of birth or confirming the birth must be provided or, in the case of an adoption, proof of the date of placement.
The employer must certify the employee’s paternity leave by completing Form PB2: Employer Certificate. This certificate should be submitted to the Paternity Benefits Section of the Department of Social Protection with the paternity benefit online application.

Paternity Benefit
Paternity Benefit of €230.00 per week, the same as maternity benefit, is payable by the Department of Social Protection. Eligibility for payment will be based on the same PRSI contribution requirements as maternity benefit.

The benefit must be claimed within 26 weeks of the date of birth, or date of placement if the child is adopted, and is paid for 2 consecutive weeks.

Paternity Benefit should be applied for at least 4 weeks before the leave begins. Self- employed individuals should submit an application 12 weeks prior to the leave.

Pay during Paternity Leave
Employers are not obliged to pay employees during paternity leave. Top up payments may be provided on terms and conditions decided by the employer. If the employer continues to pay the employee during paternity leave, the employer should require the employee to sign a mandate instructing the Department of Social Protection to pay the benefit directly to them or alternatively, simply pay the employee the difference between their salary and paternity benefit.

Postponing Paternity Leave
The Paternity Leave and Benefit Act 2016 provides for postponement of paternity leave. For example, if the birth is later than expected or if the date of placement of an adopted child is postponed, an employee may apply to postpone paternity leave.

If the baby is hospitalised, paternity leave and benefit may be postponed for a maximum of 6 months. Where a baby is born prematurely, and the employee wishes to change their leave dates, a letter from the employer confirming the new leave dates and date of birth / placement of the child, must be sent to the Paternity Benefit Section of the Department of Social Protection.

If the employee becomes sick before the paternity leave begins, the employee may postpone paternity leave until he recovers. The employer should be notified in writing and a medical certificate provided.

The leave must be taken within 26 weeks of the date of birth / placement.

Finally for Employers
Employers must keep records of paternity leave taken by their employees. These records must include the period of employment of each employee and the dates and times of the leave taken. Employers must keep these records for 8 years.

Please contact Donal T. Ryan Solicitors LLP for further details.

Local Courts – Immediate Access – Family law

The District Court is a Court of local and limited jurisdiction but is the work of this Court that the general public hear about most often – have you heard Paddy O’Gorman on the Today with Sean O’Rourke RTE radio show?

The District Court is usually held once or perhaps twice a month in a local town and deals with a variety of cases. From a Family Law point of view it is often the Court of first contact for parties when their relationships have broken down, and they require immediate protection from the Courts. Orders under the Domestic Violence Legislation or Maintenance and Access to children are the types of situations that are dealt with by the District Court on a day to day basis.

In this blog, I set out the types of family law applications that can be made in the District Court and the range of Orders that can be made by the Court.

One of the most common applications to the District Court is for a Protection order – when a party is in fear of, their partner or the other parent of their child and the protection of the Court is required. A Protection order enables a party who feels that their health and safety is at risk, and they are in fear of the other person to apply to the Court in an ex-parte application ( without notice to the other side) and after giving information to the Judge under Oath – why they should be given the protection of the Court. If the Court accepts their evidence then the party can get a Protection Order which prohibits the other person from using violence, threatening violence, molesting or putting the victim/partner/spouse in fear. This is a temporary Order and only lasts until the hearing of the main Court case where the party against whom it is sought has the right to put their case forward.

The long term applications that can be sought in the District Court are a Barring Order for a period of up to three years and a Safety Order for a period of up to five years.

The other most common order in the District Court relates to Maintenance – this is where a parent / spouse / partner can apply to the Court and seek a regular payment from the other parent / spouse or partner. The District Court only has the power to Order payments to a maximum of €150.00 per week per child and €500.00 per week in respect of a spouse. If you are seeking a payment above this, an application needs to be made to the Circuit Court. It is also possible as part of the Court Order to have your maintenance paid through the District Court Clerk’s office. If the maintenance is not paid, then it is open to the Maintenance Creditor to again apply to the Court for a variety of reliefs.

The District Court is a Court of first jurisdiction and the work of the District Court especially in family law matters is of most importance to the general public.

Donal T.Ryan Solicitors LLP Cashel and Cahir, represent clients in all Courts. Aidan Leahy and Máire McMahon are experienced District Court practitioners in all aspects of Court work. Contact us at 062 61288 or 052 7441244 or www.dtryan.ie