Survival of Actions on Death….

Survival of Actions on Death….

Do legal actions and claims survive the death of a Plaintiff or prospective Plaintiff? Can such claims/actions be maintained or initiated subsequent to the death of the intended Defendant?


Prior to 1961 when an individual died (“the Deceased”) any cause of action in civil cases ended upon his/her death. The Civil Liability Act 1961 reformed this area and since then certain causes of action survive for the benefit of the Deceased’s estate i.e., assets owned by the Deceased as at the date of death (“the Estate”). In practical terms this resulted in the Deceased’s personal representative being able to sue and be sued, with some limits applied. Such limited or excluded causes of action (referred to in the legislation and case law as “excepted causes of action”) which do not survive death include breaches of promise to marry, seduction, inducing one’s spouse to stay or leave or criminal conversation. Defamation was also excluded until the introduction of the Defamation Act 2009.

The Personal Representative

Civil actions, which are not in the list of exceptions, survive for the benefit of the Estate. The personal representative of the Estate becomes responsible for actions on behalf of (or against) the Estate under s.48 Succession Act 1965. As such, it is required that a Grant of Probate (if the Deceased died testate), or Letters of Administration (if the Deceased died intestate) are taken out to enable proceedings to be issued or defended on behalf of the Estate.

Claims on Behalf of the Estate

Where a personal representative of an Estate takes an action against a third party, the damages which are recoverable for the benefit of the Estate are limited. For example, the personal representative can take an action seeking damages on foot of a defamatory statement made by an individual against the Deceased and can recover damages where financial loss was suffered by the Deceased as a consequence of the defamatory statement. However, certain damages will not be awarded by the courts and therefore the Estate will not be successful in a claim for damages which fall into the following categories;

  • exemplary damages, which are generally awarded only in limited circumstances where a wrongdoer’s actions are particularly aggravated;
  • pain and suffering;
  • personal injury;
  • loss of or diminution of life expectancy or happiness.

These exclusions are listed in Section 7 of the Civil Liabilities Act 1961 and are describes as “excepted causes of action”.

Recent Case

The 2016 case of Doyle (As Per. Rep. Of the Estate of Bridget Doyle, Deceased) v Dunne [2016] IESC 68 is a recent example of the limitation of damages being upheld by the Supreme Court and provides useful commentary from as to the rationale for these exclusions.

The Plaintiff, Mr. Doyle, cared for his mother who was in ill health since suffering a brain haemorrhage in 1996 up until the time of her passing in July 2014. In 2010, Mrs. Doyle underwent a surgical procedure to remove cataracts and suffered complications in surgery. Arising out of these complications, Mrs. Doyle brought legal proceedings seeking damages for personal injury on the basis that those in charge of her treatment acted negligently.

For technical legal reasons, Mrs. Doyle’s case was ultimately dismissed. Due to Mrs. Doyle’s ill health she was unable to appeal the dismissal herself. As her son and next-of-kin, Mr. Doyle, acting on behalf of his mother, appealed the dismissal his mother’s action to the Supreme Court. Unfortunately, Mrs. Doyle died before the conclusion of this hearing and the Estate was not awarded any compensation on her behalf.

The Supreme Court upheld the arguments of the Defendant that the relevant provisions under the Civil Liability Act were designed to uphold the compensatory nature of personal injuries and not to afford a windfall to the Estate. The Supreme Court emphasised that as the Deceased was dead, damages for the personal injury of the Deceased could not be awarded to the Estate in line with the Civil Liability Act. It was held that damages for pain and suffering could only be claimed by the individual who experienced the injury for which compensation was sought and the Estate could not claim for the suffering of another person i.e. the Deceased.

This case confirms that the provisions of Section 7 of the Civil Liability Act continue to apply.

Claims Against the Estate

The personal representative of an Estate can also be sued by someone who decides to take an action against the Estate, but not an action based on the “excepted causes of action” listed above. Any loss or damage suffered by the Deceased under these headings will be deemed by the court have occurred before the death of the deceased and therefore not eligible for an award in favour of the Estate.

In order to make a claim against an estate, legal proceedings must be issued within a specific time limit. Proceedings must be commenced within the relevant period under the Statute of Limitations 1957 i.e., i) prior to the death of the Deceased or ii) within a period of two years after the death occurs. Failure to adhere to these time limits will result in the prospective plaintiff’s inability to take action against an Estate.

Wrongful Death

A claim can be taken on behalf of the Estate in circumstances where the death was caused by a tortious action, on foot of which the Deceased could have sued had they not died. This is known as “wrongful death” and is actionable under Part IV of the Civil Liability Act 1961. Only one action in respect of wrongful death can be taken and is for the benefit of all or any close family members, known as dependants, as its purpose is to compensate the family. Dependants include the spouse, children (including step children), parents, grandparents, grandchildren, and siblings (including half-siblings).

This action should be taken by the personal representative. If after six months of the Deceased’s death no Grant of Probate or Letters of Administration have issued and there are therefore no personal representatives legally entitled to issue such proceedings, any dependant can take the action. The action must however be commenced within three years following the Deceased’s death.

Damages/Compensation Payable on Foot of Wrongful Death

There are three types of damages which may be awarded under a wrongful death action;

  1. Special damages including funeral and other expenses, legal costs etc;
  2. Compensation as solace for suffering, loss or injured feelings i.e., reasonable mental distress but not physical suffering (called a “solatium” in legal jargon). Compensation under this category is capped at €35,000 and divided between all of the Deceased’s dependants, regardless of the number of dependants;
  3. Financial loss caused by the death of the Deceased such as prospective income and other benefits due to him/her prior to death.

The court will not take into consideration and will ignore the proceeds of insurance policies or pensions payable upon death when calculating the amount of damages under a wrongful death action.

If you would like any further information and legal advice in relation to the above issues, please contact Sharon Scally at, telephone 01 213 5940 or your usual contact at Amorys.

Financial Services and Pensions Ombudsman

Financial Services and Pensions Ombudsman – Does It Have the Final Say in a Dispute?

The Financial Services and Pensions Ombudsman (“FSPO”) in its current form was established in 2017 with the aim to provide a service that was impartial and accessible to customers and one which delivers fair, transparent and timely outcomes to disputes between customers and financial service and pension providers, thus limiting the number of disputes of this nature before the Courts.

In the case of Lloyds Insurance Co SA v Financial Services and Pensions Ombudsman [2022] IEHC 290, Lloyds Insurance Co SA (“Lloyds”) lodged statutory appeal against a decision made by the FSPO following a dispute with a customer of the insurance provider. The case addresses three important issues:-

  1. Challenging FSPO decisions;
  2. The jurisdiction of the FSPO;
  3. The lawfulness of compensation;

Background to the Case

This case originates from a complaint by the Claimants/Notice Parties, Joanna Donnelly and Harm Luijkx (“the Claimants”), who purchased a home from a developer in 2006 and entered into a contract with Lloyds for insurance cover relating to potential structural defects in the property. Two defects subsequently became apparent; 1) damage to the structure caused by pyrite and 2) damage to the structure of the roof. The Claimants submitted a claim to Lloyds in respect of both issues.

Lloyds accepted the claim in relation to pyrite but rejected the claim for damage to the roof. Lloyds adopted the position that the damage to the roof was not inherently a structural defect, but instead was caused by a leak from a water tank which had not been properly fitted, i.e., a workmanship defect. The Claimants submitted a complaint to the FSPO in 2020 following a 6-year period spent seeking resolution to the matter with Lloyds, who maintained their position throughout.

The FSPO upheld the complaint made by the Claimants on the basis that the rejection of the claim by Lloyds was unreasonable, unjust and improper and directed that compensation of €20,000 be paid to the Claimants.

The Appeal to the High Court

In line with section 64 of the Financial Services and Pensions Ombudsman Act 2017, Lloyds proceeded to challenge the decision of the FSPO before the High Court on the basis that the FSPO erred in their finding which benefitted the Claimants, that the FSPO exceeded their jurisdiction and that the compensation was disproportionate. Judge Siobhán Phelan of the High Court found in favour of the FSPO, providing useful commentary as to the remit and jurisdiction of the FSPO.

  1. Challenging FSPO decisions

Judge Phelan held that in order for a financial services provider to be successful in its challenge to a decision made by the FSPO, the provider must prove that a serious and significant error has been made by the FSPO in arriving at its decision. This standard has been consistently applied since 2006 (see Ulster Bank Investment Funds Ltd v Financial Services Ombudsman [2006] IEHC 323). In Lloyds, this threshold was extended to include a material error of law.

The standard of review that is to be adopted is to be one “not dissimilar” to Judicial Review as outlined in Verschoyle-Greene v Bank of Ireland Private Banking and FSO [2016] IEHC 236. The Court will not re-examine matters from the beginning or adopt the role of the FSPO. Instead, a decision made by the FSPO will not be deemed to be a serious and significant error if sufficient evidence put before the FSPO could reasonably lead to the decision made by it. In Lloyds, conflicting reports as to the cause of the damage to the roof was submitted by numerous engineers, therefore it was considered reasonable for the FSPO to arrive at its conclusion on foot of the evidence provided.

On that basis, the Court will not intervene to set aside decisions where it disagrees with the determination of the FSPO so long as no serious and significant error has been made in reaching this decision.

  1. The jurisdiction of the FSPO

Lloyds is an instructive case in setting out the jurisdiction of the FSPO. The purpose of the FSPO is to afford an “informal, expeditious and inexpensive” way to resolve complaints made against financial services and pension providers, without the parties having to resort to the Courts in pursuit of a resolution.

It is set out in Molyneaux v Financial Services and Pensions Ombudsman [2021] IEHC 668, the FSPO enjoys a “hybrid jurisdiction” which extends to both the adjudication of alleged acts of maladministration and to make determinations in respect of disputes of fact or law. The FSPO has jurisdiction over cases centred around the assertion of legal rights, but cannot make determinations in cases where a financial services provider has acted unlawfully.

  1. The lawfulness of compensation

In the Lloyds judgment, Judge Phelan outlined that the FSPO enjoys a wide discretion regarding compensation up to a higher limit of €250,000. The €20,000 compensation payable to the Claimants in Lloyds was held to be reasonable on the basis that the delays in repairing the roof issue interfered with the Claimants occupation and enjoyment of the home and therefore the personal rights of them as homeowners. It was noted that the FSPO cannot and should not compensate for ‘stress’ but instead can justify making an award based on inconvenience.

Key Learnings

  • The FSPO aims to provide an impartial and accessible complaints handling service that seeks to resolve issues between financial services and pension providers and customers without the need to commence legal proceedings, which is an expensive and time-consuming process;
  • The case of Lloyds reiterates that the FSPO is an independent service which has jurisdiction to handle a range of complaints with interference from the Court only where sufficiently serious and significant errors are made;
  • Financial services and pension providers, therefore, have a significant hurdle to overcome in order to sustain a challenge to the decisions of the FSPO and will therefore likely bring fewer challenges before the Courts in the future;
  • The boundaries created by Lloyds regarding the required criteria to be established by financial and pension providers in order to succeed in a legal challenge to decisions of the FSPO therefore now provide customers with a welcome sense of closure and finality in decisions made in their favour when dealing with the FSPO.
If you would like any further information and legal advice, please contact Deirdre Farrell at, telephone 01 213 5940 or your usual contact at Amorys.

Builders, Developers and Landowners: Residential Zoned Land Tax – What You Need to Know

Residential Zoned Land Tax – What You Need to Know

Residential Zoned Land Tax (“RZLT”) was introduced by way of the Finance Act 2021 and will be payable from 2024. The RZLT is an annual tax calculated at 3% of the market value of land which is suitable for residential development and is serviced. The aim of the RZLT is to mobilise lands on which housing can be developed in order to increase the much-needed housing supply by incentivising property developers to develop the land.

The first payments under RZLT will be due on or before 23 May 2024, and annually on 23 May thereafter. Payment will be made to the Revenue Commissioners who are responsible for the management of the tax. Given the time period between introduction of the tax and the first payment due date, any site upon which development has commenced before 1 February 2024 will be exempt from payment of RZLT.

Relevant Lands

In order to fall within the scope for the RZLT, the lands must, on 1 January 2022 (and 1 February after 2024), be;

  1. Suitable for residential development;
  2. Serviced, including public infrastructure for which there is sufficient capacity for housing to be developed;
  3. Included on the Local Authority’s map (see below), which will be updated annually; and
  4. Not included in the exclusions (listed below).


There are certain types of land which are excluded from the scope of RZLT as follows;

  1. Existing residential property including gardens/yards under 0.4047 hectares (1 acre). Where lands over 0.4047 hectares (1 acre) otherwise fall in-scope, owners must register for RZLT but are NOT liable to pay the tax;
  2. Land which is zoned for residential use but is permitted for use as a business to serve people in the locality;
  3. Land which is zoned for a mix of uses including residential where the land is integral to the operation of a business on or beside it;
  4. Derelict sites to which the Derelict Sites Levy applies;
  5. Land which is unsuitable for development for reason of contamination, presence of archaeological artifacts etc.

Local Authority Maps

The Local Authorities will issue maps on an annual basis which will indicate the lands within that Local Authority’s area which will be within scope for RZLT. This map will be published on the website of each of Local Authority every year. Draft maps will first be published in November 2022, supplemental maps in May 2023 and a final map in December 2023. Following the initial mapping process, maps will be updated annually and be available by 31 January each year.

Builders, developers and landowners will have a right of appeal as to their inclusion in the in-scope lands on the maps published.

Our Clients

We have identified particular scenarios in which builders, property developers and landowners including our own clients may find themselves following the introduction of the RZLT;

  1. Builders, developers and landowners intending to retain lands subject to RZLT

If included as in scope for RZLT, a valuation of the lands must be carried out. RZLT is a self-assessed tax and therefore the owner/developer is responsible for valuing the lands accurately. A professional valuer may be engaged for such valuation but it is not a requirement. The property value must be ascertained for 1 February 2024 and can be used for the following three years. The valuation must then be revised every three years. 3% of the value will be the amount of tax payable. Documentation/records must be kept should Revenue seek to enquire further about the valuation provided.

Returns and Payment of Liability
Where lands fall in-scope of RZLT, the owner/developer of the relevant site is obliged to file returns and make payment. Returns and payment of RZLT will be due on 23 May annually for those landowners/developers who are in-scope on 1 February of that same year.

Penalties will apply to late payments and will be charged at 8% per annum. Surcharges for late filings may also apply at a rate of up to 30% of the liability for the year. In addition, undervaluing the lands can result in surcharges of up to 30% of the value of the lands. If sums remain unpaid, a charge will be placed over the lands by the Revenue Commissioners thus restricting a sale of the lands.

Where there is more than one owner of the site (e.g., the property is held jointly or in a property development partnership), only one return will be required per site which can be completed by the designated person. If there is no designated person, Revenue will appoint one.

  1. Builders, developers and landowners of lands subject to RZLT intending to sell or transfer ownership

Landowners or developers who wish to sell their land have certain obligations in respect of RZLT. These obligations also apply where ownership is transferring by way of gift, inheritance or long lease (35 years or more).

The landowner/developer, prior to the sale of the lands, must;

  • File a RZLT return;
  • Provide certain details of the site, the current landowner and purchaser;
  • Pay all outstanding tax and interest due. The seller must also pay or seek to make and agree with Revenue the amount of any penalties outstanding;
  • Submit all returns prior to completion of the sale;

Once these matters have been addressed, Revenue will confirm the tax position relative to the site at the date of the sale and will state whether there is a nil balance payable or if unpaid taxes are outstanding.

Outstanding liabilities will become a charge on the property if not properly dealt with, resulting in the inability to complete the sale.

  1. Builders, developers and landowners developing their property (Residential and Mixed-Use)

Where residential development commences on a site on which RZLT is payable, the payment of the tax may be deferred. In order to defer RZLT for the duration of the development; i) planning permission must be granted, ii) the site must be used wholly or partially for residential development and iii) a Commencement Notice must be lodged with the local authority. RZLT returns must continue to be filed throughout the period. A deferral will remain in place until a certificate of compliance on completion in respect of the development has been issued.

Where only a portion of a site which is liable for RZLT meets the criteria for deferral, RZLT remains payable on the other portion of the site. The site essentially becomes two relevant sites: one which meets the deferral requirements and one for which RZLT remains chargeable.

If the relevant site is zoned for a mix of uses, RZLT is only liable on the portion of the lands that are suitable for residential development. This will be deemed the ”qualifying part of the site” and must be valued for the purpose of RZLT.

  1. Out-of-Scope Landowners/Developers

Lands that are deemed out of scope as per the criteria set out above are subject to RZLT. However, for existing residential properties which are zoned residential on the local authority map and which comprise an area in excess of 0.4047 hectares (1 acre) in size, the landowner/developer must file a return in respect of RZLT and provide certain information in respect of the property.

If a property comes within scope, tax will be payable three years after it comes within scope.

If you would like any further information and legal in relation to residential or commercial property development then please contact Deirdre Farrell at, telephone 01 213 5940 or your usual contact at Amorys.

Capital Gains Tax Loss Relief On Convertible Loan Notes

Capital Gains Tax (CGT) Loss Relief On Convertible Loan Notes

If your convertible loan note is capable of being characterised as ‘marketable’ and capable of commanding a ‘market price’ over and above the mere value of the loan, it may be possible to claim the debt as a loss for capital gains tax purposes.

Simple debt is not an allowable Loss for Capital Gains Tax Purposes

A loss made on a simple (usually undocumented) loan is not allowable as a gain or loss for capital gains tax purposes (see section 541 (1) (a) of the Taxes Consolidation Act 1997). This is because a simple loan is not considered as capable of appreciating in value for capital gains tax purposes.

However, if the loan is characterised as a ‘debt on a security’ an allowable loss for capital gains tax purposes will be created (see section 541 (1) (b) of the Taxes Consolidation Act 1997). The reason for the foregoing is because a ‘debt on a security’ is considered as a marketable asset, capable of appreciating in value.

What is a ‘debt on a security’?

Section 541 (1)(b) does not define ‘debt’ (and so it has its ordinary meaning) but defines ‘security’ as per section 585 of the TCA ’97 which includes loan stock.

Revenue have clarified in Guidelines on section 541 (par.13.3.) that the reference to loan stock should be regarded as meaning a general class of debt transferable by purchase and sale. The emphasis on ‘transferable’ is in line with the concept of a marketable capital asset capable of appreciating in value. As you will see below, this is the characteristic necessary to classify a convertible loan note as a ‘debt on a security’ pursuant to section 541 (1)(b) of the TCA ’97.

Is a convertible loan note automatically characterised as a ‘debt on a security’?

A convertible loan note is not automatically characterised as a ‘debt on a security’ for the purposes of section 541 (1)(b) of the Taxes Consolidation Act. They key test to apply is whether the loan note possessed the necessary characteristic of ‘marketability’ which would render the holder capable of selling same on the open market (see judgment delivered by Judge Francis Murphy in the Supreme Court case Inspector of Taxes v Keleghan [2001] IESC 43) and receiving an amount over and above the mere value of the loan (also known as making a ‘capital gain’ on a disposal of the asset) (see High Court judgment of Morris J in Mooney v McSweeney 1997 1 ILRM 42).

In the Irish High Court case of Mooney v McSweeney 1997 1 ILRM 429 the claimant was entitled to claim loss relief in respect of the convertible loan advanced in 1985 of £140,000. However in the Supreme Court case of Inspector of Taxes Taxes v Keleghan [2001] IESC 43, the claimant was not permitted to claim loss relief in respect of a convertible loan note which bore different characteristics to that in the first case mentioned – specifically there were restrictions on the right of conversion and no evidence was adduced to suggest that the holder could command a higher value than the funds deemed advanced originally.

It is common for shareholders of privately held companies, and their friends and family members to provide working capital finance to their company by way of a loan. In most cases the loan is provided on an informal basis with little or no supporting documentation. Where the debt cannot be repaid, the shareholder, friend or family member cannot claim capital gains tax loss relief.

Arising from the above we would advise that specific legal advice and assistance would be received before advancing funds to a company.

Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.
For further information and advice in relation to “Capital Gains Tax Loss Relief On Convertible Loan Notes”, please contact Deirdre Farrell, partner, Amorys Solicitors, telephone 01 213 5940 or your usual contact at Amorys.

Farming Accidents In Ireland

Farming Accidents In Ireland

There are approximately 137,000 farms in Ireland with an average of 173,000 people employed in the agri-food sector. According to a 2018 Teagasc survey the average size of Irish farms is 43 hectares and employment in the sector accounts for 7.7% of total employment in the country. Farms are inherently busy and dangerous workplaces with the level of fatal accidents being far greater than in any other economic sector given the relatively small proportion of the farming workforce.

How do accidents occur on farms

The level of accidents on farms has been rising. In the ten years up to 2018 there was a 31% increase in farming accidents.  The Teagasc survey indicated that the majority of accidents occur on dairy farms, 42% of accidents involved livestock and 25% involved farm machinery and vehicles. Most fatal injuries on farms involving livestock are caused by cows and heifers followed by incidents involving bulls. Rolling vehicles are also a major cause of farming accidents with many fatal injuries resulting from being crushed, struck, pinned under or falling from a tractor or other type of farming vehicle. Trips and falls accounted for 13% of accidents with chainsaws and incidents in farm buildings accounting for 7% and 6% of farm accidents respectively. Falling objects and falls from a height are also the cause of many farm related accidents. The farmyard is the highest risk area where on average 64% of accidents occur,  19% of accidents occur in fields and 15% in farm buildings. The vast majority of accidents on a farm happen to the farmer or a family member with young children and elderly farmers being particularly at risk due to accidents on the farm.

The Law and Farms as places of work

The Health and Safety Authority (HAS) have published many useful guidelines and codes of practice on how to identify and mitigate the risk of injury in a farming environment. The vital message on farm safety is to ensure that everyone working on a farm is adequately trained, that vehicles and machinery are properly maintained and that safe work practices are put in place and properly enforced across the farm.

Legal duties of a farmer

There are a number of pieces of legislation that aim to protect the health and safety of those who work on farms. The Safety, Health and Welfare at Work Act 2005 is the main piece of legislation that sets down the duties and obligations of farmers as employers.

Farmers have a general duty of care to their employees and are obliged to amongst other things:-

  • provide a safe place of work on the farm
  • ensure that safe work systems and procedures are in place
  • provide adequate training for workers
  • ensure that plant equipment and machinery is safe for use on the farm and properly maintained
  • provide personal protective equipment and clothing where necessary
  • provide adequate bathroom and washing facilities

Legal duties of farm employees

Farm employees also have a duty under the Act to amongst other things:-

  • co-operate with the employer so they can comply with the relevant legislation
  • use any personal protective clothing or equipment provided by their employer
  • not engage in any behaviour that would endanger their safety or the safety of anyone else working on the farm
  • attend training and undergo assessment where required

HSA powers

The HSA has the power under the 2005 Act to enter a farm as a place of work at ‘any reasonable time’  to ‘inquire into, search, examine and inspect’ that place of work. The powers of the HSA inspectors are extensive and they can serve an improvement notice on the farmer and also serve a Prohibition Notice requiring the immediate cessation of work where there is a breach of the Act which poses an imminent threat to health and safety. The HSA can also prosecute a farmer for non-compliance with the legislation. It is an offence under the Act to in any way obstruct an inspector in the course of their duties.

Farm Safety statements

Farmers are required as a matter of law to have a safety statement in writing that is made available to all farm employees and is also visible to everyone working on the farm. Farmers are required to identify the hazards present on the farm, assess the risk of injury associated with these hazards and identify and write out a plan to eliminate or control the hazards. The safety statement should be regularly updated as and when new machinery, vehicles or work practices are introduced. Farms with 3 employees or less are not required to prepare a safety statement however they are obliged to comply with the terms of the Agricultural Code of Practice.

Farmers need to be aware of their legal duty of care towards their employees. Legislation has evolved over time to give more protection to farm workers and they now have the same legal status as employees in any other sector of the economy. It is the responsibility of both farmers as employers and all those who work on farms to make themselves aware of the risks involved in any farm work they undertake and to do everything possible to reduce the number of accidents and potential personal injury claims on farms.

Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.
For further information and advice in relation to “Farming Accidents In Ireland”, please contact Daragh Burke, Amorys Solicitors, telephone 01 213 5940 or your usual contact at Amorys.

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