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Selling and Buying Residential Property on the Same Day: Why This Is Not Recommended

by | Apr 26, 2024 | Amorys News, Residential Property

Selling and Buying Residential Property on the Same Day: Why This Is Not Recommended

Many people involved in selling their home and purchasing a new property understandably assume that all of this can be achieved in one day. In a perfect world, this would be ideal, not to mention cost-effective, time-saving, and less stressful. Or is it?

In the “old” days, conveyancing was undoubtedly considerably simpler. There were fewer criteria to fulfill, both regarding mortgages and the drawdown of loan funds, and the legal process in general. Unfortunately, in the current climate, with mortgage conditions more difficult to meet and a greater tightening of the reins by both banks and the Law Society, what used to be a matter of course is now extremely difficult to achieve.

Attempting to close a sale and a purchase on the same day puts a great deal of stress on the links of what is likely to be an already very tight chain. One slip by one of many parties, and the whole structure can come apart.

Delays can occur in many aspects of the transaction.  The purchaser buying your property may have last minute issues with drawing down their own loan funds. If this is delayed by even one day then the whole deal collapses; they cannot move into your property and as a result, you cannot move into your new home.  Quite possibly, the vendor selling the property to you then cannot move on themselves and so the chain disintegrates.  Indeed if you too are relying on the timely drawdown of loan funds for your onward purchase then this also adds to the stress and possibility of collapse.

Ideally, therefore, if you can come to terms with the idea of selling your property in advance of signing a contract on your new home, you are in a considerably better position for a number of reasons:

  • you are considered a “cash” purchaser which is of greater appeal to a vendor who may give precedence to your offer rather than another purchaser who has to rely on drawing down a mortgage;
  • you are under less pressure to place an offer on a home that you may not have fully considered – juggling offers on your current home with placing offers on your new home may lead to you to making decisions you may regret in the future;
  • selling and buying your home can be highly emotionally charged. Having a break between the two gives you time to recharge your  batteries and refocus.

Of course, given the current rental market, you will not always have the luxury of being able to do the above.  However, you should be prepared to seek alternative accommodation from a couple of days to up to a number of weeks to allow for any pitfalls which may occur between the sale of your old house and the purchase of your new one.  You should also budget for storage of your property during this period.

Please note whilst every effort has been made to ensure the accuracy of the contents of the above article it is not to be construed as legal or taxation advice nor does it purport to be so. Specific tailored advice is required for every specific scenario. Amorys Solicitors LLP is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.
For further information and advice in relation to “Selling and Buying Residential Property on the Same Day“, please contact Wendy Scales, Legal Executive at Amorys Solicitors LLP wendy@amoryssolicitors.com, telephone 01 213 5940 or your usual contact at Amorys.
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Alternative Dispute Resolution – What are the Options?

by | Sep 29, 2023 | Company and Commercial Law

Alternative Dispute Resolution – What Are The Options?

Arbitration

 Arbitration frequently arises as a consequence of clauses in commercial contracts. Ireland operates a common law system, similar to the US and UK, and is often favoured to govern business contracts. If an arbitration clause is contained in a contract, as an alternative to litigation when a dispute occurs, the contracting parties are required to follow it. It is a dispute resolution process that can have many advantages over litigation, for example, any hearing will be held in private and arbitration is much quicker and cost efficient than court proceedings.

Arbitration is governed by the [i]Arbitration Act 2010 which came into operation on 8 June 2010. An arbitrator is appointed by the parties or nominated by an independent third-party nominating body. In terms of the format of an arbitration, the arbitrator will usually determine the procedure which the parties will follow and the arbitrator’s decision is legally binding and cannot be appealed in the absence of fraud or manifest error.

[ii]Arbitral proceedings are deemed to commence on the date on which the parties to an arbitration agreement so provide as being the commencement date, or, where no provision has been made by the parties as to the commencement of proceedings, the date on which a written communication containing a request for the dispute to be referred to arbitration is received by the respondent.

Ireland has incorporated the [iii]UNCITRAL Model Law, which means that parties to a dispute are safe in the knowledge that awards granted in Ireland will be directly enforceable and have recognition in other states that have adopted the Model Law. To enforce an award, an application may be made to the High Court by way of Originating Notice of Motion grounded on affidavit exhibiting the original arbitration agreement and the award. Enforcement will only be refused on limited grounds such as whether it would be deemed contrary to public policy.

Mediation

Mediation is a flexible process and is entirely voluntary. Generally, decisions made in mediation are not legally binding but can be made so if both parties agree to it. It is conducted confidentially in which a mediator assists parties involved in a dispute to work towards a negotiated settlement.

Mediation is actively encouraged by judges and a party who unreasonably refuses to mediate can be penalised in terms of legal costs in the event of the case proceeding to a court hearing. Since the establishment of the [iv]Commercial Court, Order 63A, Rule 6(1) (xiii) of the Rules of the Superior Courts provides that a Commercial Court Judge may direct that a case be adjourned to allow for the matter to be referred to mediation.

The [v]Mediation Act came into effect on 1 January 2018. Under the Mediation Act, solicitors are required to advise their clients to consider mediation as a form of alternative dispute resolution and make a statutory declaration that they have done so.

If the parties agree to mediate, time stops running for the purpose of the limitation period in which to bring proceedings on the date when the parties sign the agreement to mediate. Time will recommence 30 days after any termination of the mediation.

In a typical mediation, the mediator will ask the parties to submit a short summary of their respective positions, in advance of the mediation hearing. On the day of the hearing, the mediator will spend time talking to the parties. If the parties agree on a settlement, then the mediator will, in conjunction with the parties, draw up a settlement agreement which the parties will then sign.

Conciliation

Like mediation, conciliation is a voluntary and confidential based process. The attractiveness of conciliation is that it is flexible, allowing parties to define the time, structure, and content of the conciliation proceedings. The process is conducted on a “without prejudice” basis, meaning that any documentation or information furnished by one party to the other during the conciliation cannot be used in any subsequent litigation. It is frequently utilised in employment and construction disputes.

The role of a conciliator is to help parties achieve a settlement of a dispute. If parties are unable to reach an agreement, the conciliator will issue a recommendation. This recommendation contains the conciliator’s opinion as to how the dispute could be best resolved.

Sometimes conciliation is a prerequisite to arbitration, owing to a clause in a contract requiring parties to engage in conciliation before referring their dispute to arbitration or another form of dispute resolution. Conciliation has been very successful in settling disputes in the construction industry.

[i] https://www.irishstatutebook.ie/eli/2010/act/1/enacted/en/html

[ii] Arbitration Act 2010, Section 7 (irishstatutebook.ie)

[iii] https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/19-09955_e_ebook.pdf

[iv] https://www.courts.ie/rules/commercial-proceedings

[v] https://www.irishstatutebook.ie/eli/2017/act/27/enacted/en/html 

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.

Disclaimer
This article contains general information based on Irish law and does not constitute legal advice nor is it intended to provide a comprehensive or detailed statement of the law.
Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.

For further information and advice in relation to “Alternative Dispute Resolution options, please contact Mike Collum, Solicitor, Amorys Solicitors mike@amoryssolicitors.com, telephone 01 213 5940 or your usual contact at Amorys on our email address at info@amoryssolicitors.com.

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GDPR – Welcome clarity for actions concerning non-material damage

by | Sep 15, 2023 | Data Protection & Privacy Law

GDPR – Welcome clarity for actions concerning non-material damage

Article 82 of the General Data Protection Regulation (“GDPR”), contains the right to compensation for damages under GDPR and was implemented into Irish law by Section 117 of the Data Protection Act 2018. It provides that data protection actions are to be founded in Tort.

For some time there has been uncertainty surrounding the concept of “non-material damage” arising from an infringement of GDPR. On 4 May 2023,  the case of [i]C-300/21- Ul v Osterreichische Post AG the Court of Justice of the European Union (“CJEU”) delivered its decision on this concept and set out the requirements to be applied by Member States when determining the amount of compensation payable.

  • A mere infringement of GDPR is not sufficient to establish a right to compensation.
  • In order to obtain compensation there must have been the processing of personal data that infringes the provisions of GDPR, damage suffered by the data subject, and a casual link between that unlawful processing and that damage.
  • Each Member State can prescribe the criteria for determining the extent of compensation payable, provided that the principles of equivalence and effectiveness of EU law are complied with.

Irish case law

The issue of “non-material damage” has recently been addressed by the Dublin Circuit Court in the case of [ii]Arkadiusc Kaminski v Ballyguire Foods Limited [2023] IECC 5.

The proceedings in this case were initiated by a claim by the Plaintiff that there had been an unlawful processing of his data by the Defendant in the use of CCTV footage which identified the Plaintiff, and that as a consequence, he had suffered damage and distress, namely anxiety and embarrassment, due to remarks made by work colleagues.

The Plaintiff initially complained to the Data Protection Commission (“the DPC”) about the incident. However, as the complaint was not assigned to a complaint handler, the Plaintiff did not wish to delay his case by awaiting the DPC’s decision, so the matter went before the Circuit Court pursuant to Section 117 of the 2018 Act.

Judgment

In assessing damages for non-material loss, the Court stated that the following factors will be considered[iii]:

  • Under GDPR, once rights have been infringed there is a right to an effective remedy pursuant to Article 47 of the Charter of Fundamental Rights.
  • “Non-material damage” is not defined in the GDPR, however, Recital 146 of the GDPR provides that the “concept of damage should be broadly interpreted” and that data subjects should receive “full and effective compensation for the damage they have suffered”.
  • A “mere breach” or a mere violation of the GDPR is not sufficient to warrant an award of compensation.
  • While there is no minimum threshold of seriousness required for a claim for non-material damage to be successful, compensation for non-material damage does not cover “mere upset.”
  • There must be a link between the data infringement and the damages claimed.
  • If the damage is non-material, it must be genuine, and not speculative.
  • Damages must be proved. Supporting evidence is strongly desirable.
  • Data policies should be clear and transparent and accessible by all parties affected.
  • Employers should ensure their employee privacy notices and CCTV policies are clear to employees.
  • Where a data breach occurs, it may be necessary to ascertain what steps were taken by the relevant parties to minimise the risk of harm from the data breach.
  • An apology where appropriate may be considered in mitigation of damages.
  • Delay in dealing with a data breach by either party is a relevant factor in assessing damages.
  • A claim for legal costs may be affected by these factors.
  • Even where non-material damage can be proved and is also not trivial, damages in many cases will probably be modest. In the absence of other guidelines, from the Oireachtas or the Superior Courts and/or the Judicial Council, the Court stated that it had taken cognisance of the factors outlined in the Judicial Council Personal Injuries Guidelines 2021 in respect of the category of minor psychiatric damages as instructive guidance, though noting in some cases non-material damage could be valued below €500

The Court in this case concluded that the Defendant had failed to plead a legal basis for the processing of the Plaintiff’s data, nor did it carry out a legitimate interest assessment to show if the processing was necessary to achieve it. Ultimately, the Court decided that there was an infringement of the Plaintiff’s rights under the GDPR and made an award to the Plaintiff of €2,000 for non-material damages.

Conclusion

With the judgment of the CJEU and the first written judgment in Ireland in this area, there is welcome clarification on the meaning of non-material damage. National courts now have confidence and a clear understanding of the factors needed to consider such an action for compensation.
In light of the award in the Arkadiusc Kaminski v Ballyguire Foods Limited [2023] IECC 5, it is likely that most claims of non-material damage will fall within the remit of the District Court. Interestingly, the judgment provided in the case mentioned above suggested that matters of this nature should consider seeking an alternative dispute resolution process such as an independent adjudicative process or conciliation as a means to resolve data breach assessments. In some cases where damages are likely to be low a prospective Plaintiff might be better off adopting this suggestion which, arguably, should be considerably less expensive than formal litigation.

[i] https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62021CJ0300
[ii] https://www.courts.ie/view/Judgments/b29c0f8b-f732-47cf-85ef-37566b36f88c/60c1e7c8-a82b-4447-a919-111d788d2d12/2023_IECC_5.pdf/pdf
[iii] See Paragraph 11.6 of the judgment here

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.
Disclaimer
This article contains general information based on Irish law and does not constitute legal advice nor is it intended to provide a comprehensive or detailed statement of the law.
Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.

For further information and advice in relation to “General Data Protection Regulation (“GDPR”), please contact Mike Collum, Solicitor, Amorys Solicitors mike@amoryssolicitors.com, telephone 01 213 5940 or your usual contact at Amorys on our email address at info@amoryssolicitors.com.

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Unfair Dismissals Act 1977

by | Sep 1, 2023 | Employment and Industrial Relations

Unfair Dismissals Act 1977

A Workplace Relations Commission (“WRC”) Adjudicator has rejected an allegation of gross misconduct against a former [i]Abbott employee (“the Complainant”) and instead awarded compensation of €35,000 for a breach of the Unfair Dismissals Act 1977.

Background

The Complainant was employed as a general operative and was initially suspended over using an incorrect cleaning solution in April 2020. The Respondent operated a number of procedures which all operatives had to adhere to in the course of their employment. One of those procedures provided detailed instructions to operatives for the preparation of inventory fixtures. Step 2.4 of the procedure required operatives to apply a cleaning agent to an item to be used later in the process. The procedure stipulated that the cleaning agent used must have an alcohol concentration of 100%. The procedure required that the operative verify their material by label on their return from break.

On 1 April 2020, the Complainant was engaged in this task. The Respondent submitted that the Complainant on this date failed to comply with the correct procedure and this resulted in the incorrect cleaning agent being used. The Respondent claimed that the Complainant failed to engage with a member of the quality team or his supervisor in respect of corrective action.

As a result of a number of investigations, the Respondent took the view that the incident compromised health and safety at the Respondent’s plant, and ultimately the Complainant was dismissed for gross misconduct in July 2020.

The Complainant claimed that his dismissal was unfair and lodged a claim with the [ii]Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977.

WRC Proceedings

At the WRC, the Complainant declared that his dismissal was unfair, inappropriate and that the disciplinary procedure adopted by the Respondent was flawed.

The Respondent maintained that their dismissal of the Complainant on the grounds of gross misconduct was valid and proportionate and claimed that the Complainant had failed to follow direct instructions from the quality technician to isolate the affected items.

During cross-examination, the Respondent’s disciplinary officer conceded that the termination letter sent to the Complainant contained an error to the effect that the Complainant had previously received a final written warning. The Adjudication Officer noted this as being “demonstrably untrue”, and noted that the Complainant had over 14 years’ experience and had completed various other production processes without any issue being raised.

The Complainant informed the WRC that he had failed to progress in interviews with other local manufacturing firms when he informed them of the reason for his dismissal from his previous employment, before eventually sourcing a job and working for less pay.

WRC Finding

The Adjudicator found that in this instance, the conduct of the Complainant did not warrant gross misconduct. The Adjudicator awarded the Complainant €35,000 in compensation.

Significance

This case serves as yet another warning to employers to adhere to the principles of fairness and proportionality in any disciplinary action against employees. It also shows the importance of maintaining an accurate employee file as only valid prior sanctions can be taken into account by an employer in deciding on any further disciplinary action

[i] https://www.rte.ie/news/business/2023/0502/1380350-abbott-to-pay-worker-35-000-over-sacking/
[ii] https://www.workplacerelations.ie/en/cases/2023/april/adj-00029045.html

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.
Disclaimer
This article contains general information based on Irish law and does not constitute legal advice nor is it intended to provide a comprehensive or detailed statement of the law.
Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.

For further information and advice in relation to “Unfair Dismissals Act 1997”, please contact Mike Collum, Solicitor, Amorys Solicitors mike@amoryssolicitors.com, telephone 01 213 5940 or your usual contact at Amorys on our email address at info@amoryssolicitors.com.

Download Buying Residential Property Guide 2020

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General Scheme of the Defamation (Amendment) Bill 2023

by | Aug 18, 2023 | Company and Commercial Law

General Scheme of the Defamation (Amendment) Bill 2023 – Amorys Solicitors

Since the introduction of the Defamation Act of 2009, there have been repeated calls for its reform and criticism that the Act fails to strike an appropriate balance between the right of someone to protect their name and character on the one hand, and the level of compensation that is paid to plaintiffs where a defamatory statement has been proven to have occurred on the other hand. A statutory review of the law on civil liability for defamation was conducted and resulted in the publication of a [i]“Report of the Review of the Defamation Act 2009”  by Minister for Justice, Helen McEntee, on 1 March 2022.

The Government are currently working towards reforming defamation law with the publication of the [ii]General Scheme of the Defamation (Amendment) Bill.

This article will set out below some of the key proposed changes.

Abolition of juries

Lobbyists have long complained that jury awards in defamation cases have been far too high and that juries should be abolished. It is now proposed under the Bill that juries would no longer hear such cases and that any payment of damages would be wholly a matter for consideration by the judiciary.

Obligations to consider alternatives to court proceedings

Solicitors will be obliged to advise clients on alternative avenues of redress prior to to litigation, for example mediation, the role of the Press Council and of Coimisiún na Meán’s right of reply scheme. Coimisiún na Meán was established in 2022 and is Ireland’s new commission for regulating broadcasters and online media, replacing the Broadcasting Authority of Ireland.

Serious harm test

The Bill proposes that a body corporate may bring a defamation action where they claim a defamatory statement has been made. In the case of a body corporate, a statement will not be deemed defamatory unless its publication has caused, or is likely to cause, serious harm to the reputation of the body corporate in the eyes of reasonable members of society.

Social media and other online platform providers

Where defamatory material is posted anonymously on a hosting platform or on social media, the intermediary concerned will possess identifying material about the anonymous poster who is its account holder, but will not provide such information in the absence of a court order.

Under the proposed Bill, if enacted, the High Court or Circuit Court will, be granted the power to make Norwich Pharmacal Orders. These orders are a type of remedial order delivered by the Court which compels a respondent to disclose information of both wrongdoings and wrongdoers. The purpose of such an order is to help identify a defendant so that legal action may be brought against them. These orders may direct online service providers to disclose the identity of an anonymous poster of allegedly defamatory material. The Bill envisages that the making of a Norwich Pharmacal Order available in the Circuit Court should reduce the costs involved for all parties and ensure that such orders are more accessible in practice.

Corrective action

If a person is defamed, it is proposed that the correction must be published with equal prominence to the defamatory publication.

Choice of jurisdiction

Ireland has long been deemed a destination for “defamation tourism” and this Bill will change this.

It is proposed that a court will not have jurisdiction to hear and determine an action against a person who is not domiciled in the State, in another Member State, or in a state which is for the time being a contracting party to the Lugano Convention, unless the court is satisfied that Ireland is the appropriate place for the action to be brought.

Innocent publication

The Bill seeks to strengthen the protection afforded to broadcasters by amending section 27 of the 2009 Act, and will seek to ensure that a broadcaster will not be made liable for statements made during a live broadcast by a person over whom the broadcaster has no effective control, this is provided that the broadcaster takes reasonable precautions in advance of the broadcast, and reasonable care during the broadcast, to prevent the making of a defamatory statement, and, where such a statement has been made, to minimise the impact of any such statement.

Dismissal/Discontinuance of cases

Stagnant defamation claims result in some defendants having to bear ongoing costs and uncertainty over proceedings for several years after legal proceedings have commenced.

This Bill proposes that where no action has been taken by the plaintiff within 2 years of the initiation of defamation proceedings, the proceedings shall be dismissed/discontinued on notice to the plaintiff for want of prosecution. If a court decides that a case should not be dismissed/discontinued in the interests of justice, the court shall specify a time limit within which the plaintiff shall take the necessary action to enable the case to proceed.

SLAPPS

It is intended that a new part, entitled “Measures against the abusive litigation to restrict public participation”  will be inserted into the Defamation Act 2009 to deal with Strategic Lawsuit Against Public Participation (SLAPPs). The Bill refers to these as the strategic and abusive use of vexatious litigation, by a powerful entity or individual, to weaken and deter public interest discussion.

Where proceedings are brought by a plaintiff, in relation to public participation by a defendant, the defendant may apply to the court on the full hearing of the proceedings for a declaration that the proceedings constitute a strategic lawsuit against public participation and seek dismissal of the proceedings, among other remedies.

The Bill will now undergo pre-legislative scrutiny at the Joint Oireachtas Committee on Justice. It is hoped that a full Bill will be put before the Oireachtas by the end of this year.

The changes proposed in this Bill will have profound implications on the practice of defamation law in this jurisdiction if enacted.

[i] Report of the Review of the Defamation Act 2009
[ii] General Scheme of the Defamation (Amendment) Bill

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.

Disclaimer
This article contains general information based on Irish law and does not constitute legal advice nor is it intended to provide a comprehensive or detailed statement of the law.
Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.

For further information and advice in relation to “Defamation (Amendment) Bill 2023”, please contact Mike Collum, Solicitor, Amorys Solicitors mike@amoryssolicitors.com, telephone 01 213 5940 or your usual contact at Amorys on our email address at info@amoryssolicitors.com.

Download Buying Residential Property Guide 2020

Get Your Guide to Purchasing Residential Property

Click here to Download

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