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PALS Judicial Review

Partners at Law Solicitors recently brought a successful Judicial Review application in the High Court which resulted in a prosecution of a juvenile defendant being successfully prohibited, with an order of prohibition being made by the High Court as a result of a blameworthy and unexplained prosecutorial delay.

The applicant, who was 17 years of age on the date of the alleged offence, was one of three-co accused, and the only juvenile defendant in the proceedings. At that time of the alleged offence, the applicant was approximately 7 months from their 18th birthday. The applicant was questioned on the date of the alleged offence but not charged for some 17 months. Of note is the adult co-accused in the proceedings were both questioned and charged on the date of the alleged offence. The matter was ultimately sent forward for trial to the Circuit Criminal Court.

The unreasonable delay which arose in this case was deemed to have prejudiced the applicant in a number of ways;

Firstly, had he been charged on the date of the alleged offence, he may have availed of the possibility of benefiting from the District Court’s jurisdiction to deal summarily with indictable offences concerning children under Section 75 of the Children Act 2001.

Secondly, the unreasonable delay also resulted in the applicant “aging out” of the Garda’s Juvenile Diversion Programme, which is designed to prevent young offenders in Ireland from entering into the full criminal justice system by offering them an alternative means of disposing with the criminal allegations made against them. In these proceedings, the applicant was deemed unsuitable for the Juvenile Diversion Programme after a period of over fourteen months had elapsed, during which time they were not invited to meet with a Garda Juvenile Liaison Officer nor were they afforded an explanation as to why this was the case.

Following our application to the High Court seeking an order of Prohibition by way of Judicial Review, the Director of Public Prosecutions conceded the High Court proceedings and consented to the relief sought prohibiting the Circuit Criminal Court proceedings against our client.

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Recent changes to Ground Rent legislation

During the 18th and 19th century it became common for landlords who owned large areas of land to lease out this land as a way of ensuring an income. They entered long term leases for parts of their land in consideration for the lessee, or a builder constructing a building or buildings on the land. These types of leases became known as building leases. The lessee owned the buildings, while the landlord owned the land on which the buildings were built, and the lessee was said to be paying the rent for the ground only. These rents subsequently became known as “ground rents.”

Originally, when these leases ran out, the land and the buildings built on the land would revert to the freehold owner. Clearly this was not fair on the tenants under these leases who had built the buildings or paid for them. Because of the inequitable nature of this arrangement, legislation was enacted over the years which gave increasing rights to the lessees, eventually culminating in statutory rights to buy out the fee simple in certain circumstances

The purchase of the fee simple in a property held under a lease is regulated by the Landlord and Tenant (Ground Rents) (No. 2) Act 1978, with section 9 and 10 being the main provisions. Section 9 requires that there are permanent buildings on the property and that the portion of the land not covered by those buildings is “subsidiary and ancillary” to them. These buildings must not have been constructed in contravention of a covenant in the lease. If these criteria are satisfied, the property must then meet one of the alternative conditions set out in Section 10. These vary from requiring the lessee to have constructed the buildings in pursuance of an agreement for the grant of the lease upon their construction, to conditions dependent on the current rateable valuation of the buildings being in excess of the annual rent under the lease, among others.

Currently, conditions 1 and 2 of Section 10 of the Act are of particular interest, as these sections have been recently amended by the Landlord and Tenant (Ground Rents) (Amendment) Act 2019.

Condition 1 in the 1978 statute covered a situation where the permanent buildings on the property were erected by a person who, at the time of their erection, was entitled to the lessee’s interest. The 2019 Act extended this to include a situation where, although the lessee may not have constructed the original permanent structures, they may have carried out development so as to cause the building to lose its original identity. This is subject to the caveat that the works carried out by the lessee are not in contravention of a covenant of the lease.

Condition 2 of the 1978 Act entitles the tenant to purchase the fee simple if the lease is for more than 50 years, and the rent (or the greatest rent reserved under the lease) is less than the rateable valuation of the property. For this condition to apply, the permanent structures must not have been erected by the lessor or any of their predecessors in title. This condition became the subject of a Supreme Court decision by Fennelly J in Shirley v A O’Gorman & Co. Ltd. Justice Fennelly took a broad view of the meaning of “predecessors in title”, interpreting it to include not only previous owners of the freehold, but also previous lessees from previous landlords. The 2019 Act amends this condition so that “predecessors in title” shall not include a reference to any previous lessee.

Both of these changes are beneficial for any tenant who is considering an application to buy out the fee simple as they both substantially expand the ability of lessees to obtain the freehold.

For more information on the purchase of the freehold interest in your property, please contact Jack Walsh on 01-2800-340

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Extradition Law & European Arrest Warrants

Partners at Law Solicitors were recently involved in an extradition case which is currently the subject of an appeal by the Minister for Justice and Equality to the Supreme Court. The matter proceeded before the High Court, where the surrender of our client was sought pursuant to a European Arrest Warrant. Matters proceeded to full hearing with judgement delivered on 13 January 2020.

The EAW issued from Romania, with assistance being sought on the grounds that the respondent had failed to appear in person at trial.

Two points of objection were pursued on behalf of the respondent at hearing before the High Court, namely

  1. The respondent was not properly served with a summons to court in Romania and was not present in court, or represented in court, on the occasion when the Romanian Court adjudicated upon the matter and passed sentence. Further, the respondent was not guaranteed a retrial to remedy this deficiency if he was to be returned to Romania.
  2. The surrender of the respondent would constitute a contravention of Articles 38.1 and 40.4.1 Bunreacht na hÉireann and/or would be incompatible with the obligations of the State under Article 6 of the European Convention of Human Rights, and is therefore prohibited by Section 45 of the 2003 Act.

Section 45 of the 2003 Act states that an individual shall not be surrendered under the Act if the person does not appear in person, subject to various conditions regarding notification. The High Court opined that if service was executed by post, the individual will not be surrendered unless it can be proved that the communication was received.

Paragraphs of the EAW were deemed to be incorrect and not in satisfaction of Section 45 of the 2003 Act. Firstly, the Romanian authorities indicated that the respondent received notification of the determination of the Court of trial. Secondly, the EAW indicated that the respondent was legally represented at hearing. Upon the High Court seeking information from the Romanian authorities it was clear to the court in this case that the respondent was not personally served and the respondent was not legally represented at the appeal hearing.

The High Court was not satisfied unequivocally that Section 45 of the 2003 Act was complied with and refused the Minister’s application on those grounds.

By Alice Jago trainee solicitor at Partners at Law.

To find out more about extradition law please contact Andrew Vallely on 2800340 or avallely@pals.ie

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ADVANCE HEALTHCARE DIRECTIVES (AHD)

Covid Times

In the face of the coronavirus pandemic, we should all apply our minds to the end of our lives and express our wishes in a written document.  The Irish Hospice Foundation has published the most comprehensive form entitled “Think Ahead”.  Eventually, these forms will have legislative recognition and medical staff will be expected to abide by our wishes subject to all the legal qualifications being in place.

You don’t need a solicitor.  Check out www.thinkahead.ie

At the outset it should be noted that AHDs are not yet recognised by the law.  The Assisted Decision Making (Capacity) Act 2015 introduced the concept.  The Act was signed by the President on 30 December 2015 but most of it has yet to be implemented and, when it is, it will be significantly altered.

In a celebrated case heard in 1995 and entitled In Re a Ward of Court the Supreme Court listened to the arguments put forward on behalf of the parents of a 45 year old woman, who was in a persistent vegetative state due to a cardiac episode, to allow her come off a life support system.  The action was taken, not by the patient or her parents, but by the Office of Wards of Court.  In granting the order, the court gave judicial approval of a dignified death based on the health carer’s pleadings.  At the same time it lamented the absence of a statutory guideline.

Very quickly, in 1996, the Oireachtas passed into law the Powers of Attorney Act.  This piece of legislation created an instrument known as an Enduring Power of Attorney (EPA).  An EPA allows a competent person to decide who will make decisions on that person’s behalf when he or she becomes mentally incompetent.  Until that moment, decisions could only be made in that circumstance by the High Court where the individual had been committed as a ward of court.

While the 1996 Act was helpful it did not go far enough.  The concept of wardship is outdated and the 2015 Act sought to abolish it. Part 8 of that Act provided for the creation of an AHD and the appointment of designated healthcare representatives by the directive makers. The 2015 Act succeeded in setting up the Office of Decision Support Services and an officer was appointed.  She has been active over the past 4 years in establishing a set of protocols involving all sorts of people who have a stake in the care and general lookout for persons who are unable to make decisions on their own account.  These protocols will be put to public consultation before a further Bill is brought before the houses of the Oireachtas at some stage in the future.

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HOW TO MAKE AN ENDURING POWER OF ATTORNEY DURING LOCKDOWN

COVID TIMES

LOOKING AFTER NO. 1

More people are dying in nursing homes than in hospitals during this coronavirus pandemic. It paints a picture that is not necessarily a true one – of pain and misery inside the isolated corridors of virus clustered so-called sanctuaries for the weak and aged. These places haunt the imagination of Ireland’s ageing. Many see them as a dumping ground for unwanted generations.

As someone who has been visiting nursing homes for over 40 years in a professional capacity I can assure you that they have transformed themselves from what they used to be. They are now clean, bright, happy places where the quality of life for older people is enhanced beyond their previous existence at home.

The critical difference between life in a long term caring facility and life alone at home is the family dimension. It is therefore strange to me that so many among us, who face retirement, neglect to provide for the ultimate decisions. Where shall I die and who will be the judge?

If the ability to make those decisions, personally, fails you due to dementia, alzheimers or stroke you can put a family member in charge by making an enduring power of attorney (EPA). Not to do so, on the basis that “it won’t happen to me”, is a gamble. Without an EPA in place, a person who has lost mental capacity becomes a candidate for wardship. In that case the High Court will entrust the elderly patient to the care, not of the family, but, more likely, the HSE.

HOW TO MAKE AN ENDURING POWER OF ATTORNEY DURING LOCKDOWN

Contact me at jmk@pals.ie or 0862540634.

We will prepare a file and send you out a preparatory letter.

I will set up a Zoom chat or phone call, preferably including your intended attorneys (allow one hour). I will explain how it works and if you know what you want you may give me all the details from the comfort of your living room. Within that hour I will have an 18 page document printed and prepared for signing with your all important decisions recorded.

There are 3 alternate methods of signing:

  1. Home. When you are happy I will ask you to print on good quality paper. You may then sign the EPA as indicated in the appropriate places before an independent witness (not the attorneys who must also sign). I will then ask you to post the original pages back here where we will then proceed with the process of serving notices and obtain the doctor’s certificate. We will copy you with the final booklet in due course.
  1. Office. You will drive to Adelaide Street where I will meet you while you remain in your car. I will pass the documents through the window and you sign on the dashboard. I will witness by signing on the bonnet
  2. Garden. I can call to you.

Fee payment will be by card or cheque. The cost is €900 incl vat for a single and €1300 for a pair (husband and wife).

JUSTIN MCKENNA

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