Legal Speak

LEGAL SPEAK

 

“FLOATING CHARGE”                    

Does not involve water, cavalry advances or sea horses.  It is a type of mortgage which does not attach to any specific property until the happening of a certain condition or event.   At that stage, the charge is said to “crystallise”.

 

CAVEAT EMPTOR

Literally means let the buyer beware.  A purchaser must look after his own best interests and satisfy himself that he is getting everything he expects.

 

“A TRUST

Exists when somebody who has legal title to or controls property is obliged to deal with it for the benefit of other person(s).  It has nothing to do with whether or not the person is honest or credible.

 

BRIEFS”                                           

Have nothing to do with items of personal clothing.  A brief comprises written instructions from a solicitor to a barrister retaining him/her to act in legal proceedings. They can however be rather voluminous.

 

A CIVIL BILL

Institutes legal proceedings in the Circuit Court in an equivalent way to a High Court Summons.  It does not therefore refer to a polite demand for money.

 

STATUS QUO ANTE

Has nothing to do with a relative of members of a famous rock band – it simply means “the same state as before”.  Think “undo” on your keyboard.

 

FEE SIMPLE

Isn’t a straightforward solicitor’s invoice; it is in fact the most extensive freehold title which can be owned in land.  It can be contrasted with a leasehold title whereby land is owned only for a specified period, usually a number of years.

 

 

AN ASSURANCE

Is not a pat on the back but a document or deed transferring land.

 

A PARTY

Does not involve loud music, alcohol and lots of fun but is rather someone who takes part in a legal transaction or deed or sues or is sued.

 

“A THIRD PARTY”:                          

This is not yet another venue to head to on a Friday night – simply another person or entity involved in an incident, transaction or litigation.

 

EXECUTION

Does not refer to the death penalty but rather to the signing and sealing of a deed or the carrying into effect of a court judgment.

 

AN INTEREST IN LAND

Is not a fascination with sods of turf but is in fact a broad term used to describe types of ownership of land.

 

A SATISFACTION PIECE

Is a document to show that a debt has been paid and not a bit of a “Snickers” bar.

 

EASEMENTS

Do not make life any easier for your solicitor.  It is in fact a generic term for rights such as rights of way, fishing rights, etc.

 

IN CAMERA

A confusing term which refers to court cases heard in private (yes, no cameras), usually involving family law or sensitive state secrets and has nothing to do with the film industry.

 

TIME IMMEMORIAL

Is 1189 AD as fixed by the Statue of Westminster 1275, being the first year in the reign of Richard I.  You can remember that one for the next pub quiz.

 

“TUPE

(pronounced “to-pay”) – not an ill-fitting hairpiece – rather it is the acronym for the Transfer of Undertakings Protection of Employees regulations introduced by the EC in 2003.

 

DATA ROOM

Does not necessarily mean a room packed full of files and records relating to a company.  Physical data rooms used to be common in the due diligence process but have now been largely replaced by virtual data rooms.  This renders the due diligence process during a merger/acquisition transaction, loan syndication transaction or private equity/venture capital transaction to be carried out in a much more structured and cost efficient way.  Secure virtual data rooms are provided by third party commercial providers.

 

GOODWILL

In commercial terms does not mean being friendly, nice, helpful, benevolent or compassionate towards a fellow human.  In commercial law terms, the expression refers to the established reputation of a business which is regarded as a quantifiable asset and can be extremely valuable to the owner of the business.

 

“RACHET”                                         

Not to be confused with the misspelling of the instrument used in the game of tennis.  It is a term used in the world of corporate finance where a rachet clause can provide that the rights of the involved parties are adjusted according to a pre-agreed formula upon completion of a transaction or at various stages provided for in a contract.

 

D.I.R.T.

No cleaning required.  The acronym stands for Deposit Interest Retention Tax which is charged on all interest payments by financial service providers such as banks.  It is currently charged at the rate of 39% of all such payments and it is paid directly to the Irish Revenue.

 

RECEIVER

Has nothing to do with the apparatus formerly known as the telephone.  A receiver is in fact a person usually appointed by a secured creditor (e.g. a bank) to run a company for a short period of time.  A receiver’s function is to liquidate all assets the subject of the security and pay as much debt as possible back to the secured creditor.  A receiver can also be appointed over the assets of an individual in certain circumstances.

 

SICAF

No need to call in the vet! This has nothing to do with a bovine illness.  It is in fact a type of investment fund structure along with a SICAV used principally in Luxembourg but also found in many other western European countries.  The acronym derives from the French –  “Société d’Investissement à Capital Variable” and the “Société d’Investissement á Capital Fixe”.  These investment funds do not have an independent legal personality  The Irish Government has now introduced the ICAV under the Irish Collective Asset – Management Vehicles Act, 2015.  It is a specially designed vehicle for Irish investment funds.  Unlike the SICAV or the SICAF, the ICAV has a specific statutory personality established under the 2015.

 

BOILERPLATE CLAUSES

Now we’re cooking!  These are the more general clauses inserted into a commercial contract which can be added to, deleted or amended as necessary to reflect the contract being drafted. The “operative” part of the agreement appears at the beginning of the document and is entirely specific to the agreement being drafted.  However, the boilerplate clauses should not be overlooked as they can contain important provisions.

 

(c) Sharon Scally, Amorys Solicitors 5th September 2017

Please contact Amorys Solicitors on  Tel (01) 213 5940 to speak to one of the team

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Transfer of Personal Data- the Max Schrems and Facebook case

Privacy Rights Campaigner Max Schrems claims the transfer of his personal data by Facebook from Europe to its US parent company is unlawful and in breach of his right to privacy under article 7 and 8 of the EU Charter of Fundamental Rights. Individuals in the European Union have a specific right to privacy under European law. Individuals in the US do not have the same protections. In the US personal data is subject to mass State surveillance which is a breach of European citizen’s rights. The Irish Data Protection Commissioner refused to investigate Mr. Schrems complaint, this was overturned by Court Order and the Data Protection Commissioner was directed to investigate Mr. Schrems’s complaint.

 

The complaint was then investigated by the Irish Data Protection Commissioner. A draft decision on this complaint was then issued by the Irish Data Protection Commissioner, who then issued High Court proceedings seeking to refer a number of questions to the European Court. The key question raised is whether standard contractual clauses approved by the EC to be used by parties when they are arranging for the transfer of personal data of individuals to other countries outside the EU provide sufficient protection for EU citizens.

 

Ten parties applied to be joined as amici curiae (parties who have an interest in the proceedings) to assist the High Court in relation to this case. The High Court ordered that the USA Business Software Alliance, Digital Europe and the Electronic Privacy Information Centre be joined as amici curiae on the basis that this will have significant economic and commercial consequences for companies and individuals. The USA BSA were joined as restrictions on transfer of data would have considerable adverse effects on US commerce. Business Software Alliance is a not for profit international trade association of global technology providers. EPIC is a public interest, not for profit organisation with expertise in privacy, freedom of information, and government surveillance and has appeared frequently in the US as amici curiae and before the European Court of Human Rights. EPIC is a member of the advisory panel of Mr. Schrems. Digital Europe is the principal representative body for Europe for the Digital Technology Industry and is a not for profit association. The US Government were also represented in the case.

 

The case was heard in the High Court in Dublin in March 2017 before Ms. Justice Costello for a number of weeks. Judgment has been reserved and will issue shortly.

 

If you have any queries or comments in relation to this article, please contact Davnet O’Driscoll at Davnet@amoryssolicitors.com

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Join us at our Mock Employment Tribunal

We all love the drama of good court case or employment tribunal — but what if it was your company in the dock?

This March, as Dublin 18.part of Local Enterprise Week, Junior Chamber Ireland (Dublin Southside) in association with Amorys Solicitors, will be hosting a mock Workplace Relations Commission tribunal in the Beacon Hotel, Sandyford, Dublin 18.

We step into the glamourous world of fashion when a high-flying PR executive is dismissed after a fashion show falls flat amid suspicions that she is planning to start her own company with a prized client. But did the company follow proper procedures, and was the employee a victim of bullying, harassment and unrealistic expectations?

The mock tribunal presents a great opportunity to experience the theatre of the Workplace Relations Commission, understand how the process works and build your confidence to prepare for any future hearings without risk to your business.

The session promises to be dramatic and entertaining, and will also offer practical information and experience that is relevant to all business owners, managers and employees having or seeking to secure a managerial role.

The tribunal will be presided over by Davnet O’Driscoll, a WRC Adjudicator designate and solicitor with Amorys Solicitors. Stephen Fitzpatrick BL, barrister, and Deirdre Farrell, solicitor also with Amorys will be representing the parties. This event will provide attendees with:

  • An opportunity to help demystify Workplace Relations Commission proceedings relating to a claim for unfair dismissal.
  • Guidance on how to implement workplace policies in your business.
  • A chance to learn how to prepare for, present and defend an unfair dismissal claim.
  • A forum to question and discuss employment law issues with experienced employment law lawyers

The seminar is free to attend, however, it is expected to be very popular and places are limited so please register your attendance on Eventbrite. More info on Local Enterprise Week events in Dún Laoghaire-Rathdown can be found here.

 

Programme:

6.30pm        Arrival, registration, refreshments
7.00pm        Mock Workplace Relations Commission Tribunal
8.15pm        Q&A session
8.30pm        Drinks & Canapes
9pm             Evening ends