We are extremely proud of this award in the context of the supremely high standards maintained across legal firms in both Carlow and Kilkenny.

The award ceremony recognised businesses in many different sectors and it is an honour to be a part of this.

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What is Zoom? It is basically one of a number of programmes that allows you to meet several people by a video call. For the purpose of this article, I am using ‘Zoom’ as an example of the various platforms available. One person called a ‘host’ will set up a meeting and send you a link. Once you have the Zoom app or programme, you can simply click on the link and you will join the meeting. You will need a mobile phone or a computer with a camera such as a laptop. Computers tend to have an advantage over mobile phones in two senses. Firstly, there is obviously a bigger screen with a computer. Secondly, if there are more than 4 participants or screens joining the meeting then you can still see everyone at the same time on a computer, whereas the mobile phone will allow you to see only 4 people at a time which will include the person speaking. Mobile phones have their own plus points too; they often have better video and audio quality and can have a better battery life compared to a laptop.

Before taking part in formal meetings, it is well worth having practice Zoom meetings with friends or relatives just to get used to it. Personally speaking, I have found Zoom meetings incredibly useful, effective and also great at saving time. Before Zoom, if we needed a meeting with our barrister and client this might mean a journey from Carlow to Dublin. This can now be done without any travelling at all. My client can be on the south coast, our barrister can be in Dublin and I can be in my office in Carlow. Online meetings have huge advantages over telephone calls; most psychologists will tell you that at least half of our communication as humans is non-verbal and facial expressions are crucial in this.

Online court hearings in Ireland are becoming more widely available. The Courts use a programme which is fairly similar to Zoom called ‘Pexip’.

I have set out some tips and hints when using either Zoom or Pexip as follows:

– Start to login in early. If you need to boot up a computer, you should start this about 15 minutes before the meeting time. This gives extra time for any issues such as a low battery or poor internet connectivity

– Make sure your video is enabled so that you can be seen

– You must observe the same formalities as if you were in court or in a formal meeting. Examples of this would be appropriate dress, appropriate language, no eating, no background music/noise and no pets

– It is a good idea if at all possible to have a back up device. If the battery or wi-fi fails on a laptop, you can switch to your back up mobile phone

– If you are online with just a small number of people, it is usual for all microphones to be kept switched on. As the number increases, the host might mute all microphones and it then becomes an element of discretion as to which microphones are unmuted. Similarly, you can mute and unmute yourself. If you need to speak, you can raise your hand. There is a facility on Zoom which allows you to raise an on screen hand too

– Be aware of your background. If you are against a window, this might cause a silhouette. You might also need to adjust lamps and lighting

– In a court scenario you might need to be sworn in to give evidence. Some parties will affirm, but others will prefer to swear on the Bible or appropriate religious text. If so, these need to be kept nearby

– Zoom has a ‘chat’ facility. If you are using it, be aware that everyone can see it

– Close apps or programmes that are not needed. This can help improve your connectivity

On 18th May 2020 the Dublin Circuit Family Court office issued 2 guides for ruling judicial separation and divorce applications on consent. On 21st January 2021 the President of the High Court issued a notice for Remote Personal Injury Hearings for Dublin. Both of these can be seen as models as to hearings across Ireland and I have set these out below:

Dublin Circuit Family Court office on 18th May 2020:

STEPS FOR VMR (Virtual hearing) SCHEDULING
FOR NEW MOTIONS for J.S. & DIVORCE ON CONSENT

The VMR App is Pexip. This can be downloaded for PC’s, tablets or. mobiles and requires a wi-fi” [note: it can also be accessed via a
browser]

1. Solicitor for the Applicant should file the Notice of Motion as. standard in triplicate. It should include a cover letter with the following information:
– The case reference and both parties e-mail address’.
– A requesting that the matter be heard via VMR
– An email or letter from the other side confirming they are happy to proceed via VMR.
– Confirmation from both parties of who will be joining the remote meeting.
– Scanned copies of photo ID for both parties.

2. Both parties will be emailed with a date and time for the VMR and a document containing the guidelines and the access link/code to the hearing.

3. On the date approved parties are advised to log into the VMR approximately 10 mins before their stated time.

4. It is envisaged that individuals will be asked to affirm when giving their evidence.

STEPS FOR VMR (Virtual hearing) SCHEDULING
FOR ADJOURNED MATTERS OR DATES IN THE FUTURE
for J.S. & DIVORCE ON CONSENT

The VMR App is Pexip. This can be downloaded for PC’s, tablets or mobiles and requires a wi-fi” [note: it can also be accessed via a browser]

1. One of Legal representatives involved in the case should E-mail dublincircuitfamilylaw@courts.ie and include ‘VMR REQUEST’ in the subject box and confirm:
– The case reference and the date which it was due before the Court.
– That both parties are consenting to the matter proceeding via VMR
– There is no change in the consent terms and they are ready to rule.
– Scanned photo ID for both parties.
– Confirm who will be attending the remote hearing for ‘both parties’.
**The email must cc the other party or provide their e-mail address in the correspondence**

2. Both parties will be emailed with a date and time for the VMR (usually within a couple of days) and a document containing the guidelines and the access link/code to the hearing.

3. On the date approved parties are advised to log into the VMR approximately 10 mins before their stated time. It is envisaged that individuals will be asked to affirm when giving their evidence.

Remote Personal Injury Hearings for Dublin

1. Personal Injuries actions will only be listed for a remote hearing if the consent of both parties has been notified to the Court at a call over of the cases for the following week to take place on the preceding Wednesday the first such call over to be on Wednesday the 27th January.

2. Depending on demand, the Court will list up to four such cases each day – priority to be given to the cases already fixed for hearing in the Hilary Term.

3. In respect of any case scheduled for a remote hearing, the solicitor for the plaintiff shall, by 12 noon on the Thursday preceding the week in which the action is listed for hearing, deliver to the List Room (i) a book of pleadings (ii) a booklet containing all expert reports (iii) a booklet containing any other documentation or materials which either party proposes to introduce into evidence or put to a witness in the course of their examination/cross examination and (iv) a schedule of special damages.

4. The trial judge will not consider any of the documentation delivered to the List Room, save for the booklet of pleadings, until such time as the case commences whereupon the parties can advise the court of any agreement reached as to the basis upon which regard might be had to any expert report or other document.

5. A remote hearing should not be sought in any case in which it is proposed to introduce any document by way of surprise or where a party is unwilling to disclose, in advance, any material upon which they intend to rely.

6. In consultation with both branches of the profession, the efficacy of such hearings will be reviewed on an ongoing basis.

Virtual hearings and online meetings are now possible for us as our technology improves. Change can sometimes bring about a little trepidation, but these advances are here to stay and in my view we should embrace them.

© Philip Vint & Co Solicitors 2021

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Preliminaries

• Find a house and pay booking deposit to auctioneer usually between €5,000 and €10,000
• Notify auctioneers of the name of your solicitor
• Make sure you have your loan approval from your bank if you are obtaining a mortgage
  

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  Pre-Contract Enquiries

  • • • Your solicitor receives a sales advice note from the auctioneer which sets out who is who ie who is the buyer and who is the seller and who are the solicitors
      • Your solicitor then receives draft contracts and copy title paperwork from the seller’s solicitor
      • Your solicitor raises pre-contract enquiries
      • Your solicitor gets replies to pre-contract enquiries. Further queries can be raised which need to be answered

    ---

Contracts

• • • • Once all pre-contract enquiries are dealt with and the loan offer is in place contracts are signed and exchanged
      • When contracts are signed you pay a 10% deposit of the total of the purchase price less the booking deposit already paid so, for example, if you are paying €150,000 for the property and the deposit is €15,000 but you’ve already paid €5,000 as a booking deposit, you then pay a balance of another €10,000

  ---

Preparing for Completion Day

• • • • • Your solicitor requests drawdown of the loan from the bank if you are getting a mortgage
        • Completion date is set at the same time the contracts are signed. This is usually a few weeks from the date of the contract
        • Prior to completion closing monies are sent to the seller’s solicitor on trust and title documents are sent to the buyer’s solicitor on trust

  ---

Completion

• • • • • On completion day, closing searches are ordered by the buyer’s solicitor and then forwarded to the seller’s solicitor who will respond to any issues which arise. Once the closing searches are clear, the sale is completed. Monies are released to the seller’s solicitor, title documents are released to the buyer’s solicitor and the buyer can collect keys from the auctioneer

  ---

Final Steps

• • • • • After the sale is complete your solicitor pays the stamp duty on the property and registers it with the land registry. He makes sure that any mortgage from the seller is cleared off the title and, where you have a mortgage, sends the title documents with a schedule to your bank

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© Philip Vint & Co Solicitors 2020

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A new provision came into being in Irish law on 28^th January 2019, the idea being that a plaintiff must send his or her initial letter of claim within one month of the date of the incident (or cause of action).  Let’s take a look at the legislation.
This is what the law said up to 28^th January 2019:

CIVIL LIABILITY AND COURTS ACT 2004 pre 28^th January 2019
Letter of claim.

8.—(1) Where a plaintiff in a personal injuries action fails, without reasonable cause, to serve a notice in writing, before the expiration of 2 months from the date of the cause of action, or as soon as practicable thereafter, on the wrongdoer or alleged wrongdoer stating the nature of the wrong alleged to have been committed by him or her, the court hearing the action may—

(a) draw such inferences from the failure as appear proper, and
(b) where the interests of justice so require—
(i) make no order as to the payment of costs to the plaintiff, or
(ii) deduct such amount from the costs that would, but for this section, be payable to the plaintiff as it considers appropriate.

This is the amending enactment to change the law:

CENTRAL BANK (NATIONAL CLAIMS INFORMATION DATABASE) ACT 2018
Amendment of sections 8 and 14 of Civil Liability and Courts Act 2004

13. (1) In this section “Act of 2004” means the Civil Liability and Courts Act 2004 .

(2) Section 8(1) of the Act of 2004 is amended by:
(a) the substitution of “one month from the date of the cause of action,” for “2 months from the date of the cause of action, or as soon as practicable thereafter,”, and
(b) the substitution of “the court hearing the action shall” for “the court hearing the action may”.

This is what the new law should look like:

CIVIL LIABILITY AND COURTS ACT 2004 from 28th January 2019

8.—(1) Where a plaintiff in a personal injuries action fails, without reasonable cause, to serve a notice in writing, before the expiration of one month from the date of the cause of action, or as soon as practicable thereafter, on the wrongdoer or alleged wrongdoer stating the nature of the wrong alleged to have been committed by him or her, the court hearing the action shall—

(a) draw such inferences from the failure as appear proper, and
(b) where the interests of justice so require—
(i) make no order as to the payment of costs to the plaintiff, or
(ii) deduct such amount from the costs that would, but for this section, be payable to the plaintiff as it considers appropriate.

The first part of the amendment therefore changes the time limit for writing the initial letter of claim from 2 months or as soon as practicable thereafter, to simply one month. The second part changes the court’s discretion in the word ‘may’, to the court being obliged to consider this in the word ‘shall’.

Going further through the section, the court must ‘draw such inferences…..as appear proper’ and ‘where the interests of justice so require’ either make no order for the plaintiff’s costs or make a deduction from the plaintiff’s costs to reflect this section.

The saving provision from the plaintiff’s point of view is the wording ‘where the interests of justice so require’ .

There are a multitude of bona fide reasons why a plaintiff’s letter of claim will not be written within the month period and here are just a few examples

• a plaintiff does not see a solicitor within this time frame
• a plaintiff has injuries preventing him or her from considering legal proceedings
• a plaintiff is too traumatised by the incident
• a plaintiff is unsure about proceeding at all
• a plaintiff might have a claim for injuries against their employer and wants to consider this carefully
• a plaintiff wants to see if their injury settles down before taking any steps for a claim
• a plaintiff wants to know the outcome of a garda investigation
• a plaintiff wants to know the outcome of a prosecution
• it might take some time to establish the identity of the wrongdoer

The list goes on and is certainly not exhaustive. When putting the ‘interests of justice’ into the equation, however, it is hard to see how a plaintiff would be penalised.

It is also important to point out that the month is only counted form the date of the cause of action. There are situations where a plaintiff suffers harm, but this only becomes apparent at a later date. The date of knowledge of this is therefore important.

The ‘interests of justice’ is therefore a crucial provision in preserving a judge’s discretion when considering this issue. This means that a judge’s hands are not tied by legislation and allows a judge to make a fair, sensible and just decision on this.

In practice, if you go over the one month time limit then the reason for this should be stated in the personal injuries summons and the new rules for this are provided as follows:

RULES OF THE SUPERIOR COURTS

AMENDMENT TO: ORDER 1A
S.I. NO. 216 OF 2019: SUPERIOR COURTS (PERSONAL INJURIES: SECTION 8 NOTICES) 2019

“6. (1) Where a plaintiff who has not served the notice required by section 8(1) of the Act within the time prescribed for service of such a notice alleges that there was a reasonable cause for such failure, the personal injuries summons shall include particulars of the cause of the said failure.

The new court rules also allow for situations where this information is not available at the time of issue of the personal injuries summons so that it can be provided at the time of service or as soon as practicable thereafter.

The rationale behind the new legislation is a little unusual. It is generally thought this this was brought about by the insurance lobby seeking more certainty in knowing who was going to bring a claim. It may well have the effect of encouraging more claimants who would prefer to have their letter of claim issued within the one month period.

Some ambiguity also arises in the legislation. Usually an item being substituted is named first, but that is not the case here:

(a) the substitution of “one month from the date of the cause of action,” for “2 months from the date of the cause of action, or as soon as practicable thereafter,”, and

(b) the substitution of “the court hearing the action shall” for “the court hearing the action may”.

It remains to be seen if this will be tested in court.

All in all, it is difficult to see plaintiffs being penalised by this provision. The short time limit of one month gives wide scope for the plaintiff to provide a valid reason why the letter was not issued in this time frame.

This article is for information only and does not provide legal advice. If legal advice is required then please contact us at info@vintsolicitors.com © Philip Vint & Co solicitors 2019

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What are special damages in a personal injuries claim? The easiest way to think about them is that it is any compensation that you can actually mathematically calculate. Good examples of these would be loss of earnings, medical expenses or travel expenses.

So how are these calculated? The basic principle of compensation is to put you in the position you would have been in ‘but for’ the accident. With the loss of earnings, therefore, it is the net loss that is calculated. If the amount varies, you can take an average and then use this to work out the loss. Certain social welfare benefits must also be deducted; the simplest way to ascertain these is to obtain a certificate of the amounts from the Recoveries section of the Social Welfare Department. Invariably a defendant will have obtained these figures anyway.

Medical expenses are relatively easy to calculate. It is simply a question of adding these all up to include doctors’ and consultants’ fees, pharmacy bills, MRI scan fees, physiotherapy expenses and so on. This can sometimes get a little more tricky where, for example, a health insurer has paid medical bills on the plaintiff’s behalf. The health insurer might insist – and it may well be a part of the policy – that their outlay is included in special damages and they might look for an undertaking that, if this is recovered, it is repaid to them.

Travel expenses are similarly simple to calculate. They are generally allowable for trips for medical appointments and a rate of, say 63 cent per mile, is usually allowed.

Another item of special damages might be for car repairs. An estimate from a garage will often suffice to prove this. Where a car has been written off, you need to come up with market values for an equivalent replacement in terms of age, mileage etc. A starting point here can be using figures from popular internet car sales sites. In many cases, an insurer will cover the car damage without prejudice to the remainder of the claim once liability is not an issue.  A salvage value is often factored in too.

Minor items which have been damaged in an accident can also be claimed. Regular examples are mobile phones or expensive clothing that has been ripped or damaged.

Of course, all of the above assumes that you can get to a fixed point in time, such as settlement or trial, and do simple calculations but what about future losses? It is often very useful to get a report from an experienced occupational therapist. This can identify what the plaintiff can do upon returning to the work marketplace and ought to provide sample earnings. An actuary should then be instructed to crunch the numbers and provide figures for future loss of earnings. The actuary should be able to also work out figures for all other future losses such as future medical care, or future loss of services. Future loss of services might arise in a fatal accident case where a parent has been killed in an accident. The value of their services to the family can be worked out and then actuarialised.

Special damages are a crucial aspect of a personal injury, fatal accident or medical negligence claim and must be dealt with properly.

© Philip Vint & Co 2019

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The mediation will often take place on neutral territory such as in a hotel meeting room.

There are 4 essential pillars to mediation which are established at the start of any mediation process. They are that a mediation is voluntary, impartial, confidential and self determined; it is useful to outline these a little further. ‘Voluntary’ means that the parties are attending of their own free will. ‘Impartial’ means that a mediator will not take sides. ‘Confidential’ means that nothing that is said in the mediation can be referred to later unless the parties consent. Even the mediator’s notes will be shredded after a mediation has concluded. ‘Self determined’ means that it is the parties who determine the outcome of mediation.

In terms of the process, each party will have uninterrupted time to say what the issues are and the mediator will then summarise this back. There is then a discussion and parties are encouraged to look at options and solutions. It is possible that the mediator will meet each party in private during the mediation.

The key to a mediation is getting beyond positions and drilling down as to what is really going on. This can be thought of as the iceberg in which only the positions are apparent, ‘I will not’, ‘I will never’ etc and getting to true interests below the surface, ‘what is important’, ‘what is the impact’ etc. Once interests can be identified the parties will find solutions far more easily.

If agreement is reached, the parties can decide themselves whether to commit this to a written binding agreement.

Mediation can go where litigation cannot tread; it can be creative and indeed solve the almost impossible.

(c) Philip Vint & Co Solicitors 2019

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The Mediation Act came into force in January 2018 and represents a game changer in terms of all types of conflict resolution in Ireland.

Mediation is confidential, impartial, voluntary and self determined. From a practical perspective it is usually quicker and cheaper than going to court.

We offer mediation on a wide range of topics to include personal injury, medical negligence, employment, land, property, boundary disputes, conveyancing, litigation and probate disputes.

We are formally accredited with the Mediator’s Institute of Ireland http://www.themii.ie/members/profile/3062

and registered with the Law Society of Ireland https://www.lawsociety.ie/Find-a-Solicitor/Mediator-Search/?filters=s_Vint!c_16#

Should you like to know more about this, please contact us at philip@vintsolicitors.com or on 059 9164363

This article is for information only and does not provide legal advice. If legal advice is required then please contact us at info@vintsolicitors.com

© Philip Vint & Co solicitors 2018

The post Mediation Services at Philip Vint & Co. Solicitors first appeared on Philip Vint & Co. Solicitors.

The purpose of this article is to give an overview of the involvement of the coroner’s court, the criminal court and the civil court when a fatal accident occurs.

Fatal accidents in Ireland often take place as workplace or car accidents. In both situations the gardai will attend the accident scene and carry out an investigation. In a workplace fatal accident the HSA will invariably carry out their own investigation. The investigations may lead to a recommendation to prosecute a third party who might be at fault. The prosecution will take place in a criminal court and will allege criminal offences.

These cases can be very difficult because your number one witness would have been the deceased; instead you need to rely on the testimony of all other relevant persons as well as the physical evidence available.

At around the same time, the family of the deceased will usually consult a solicitor who will help them with their civil case and with the inquest as well as guide them through the process of any criminal trial. The solicitor can provide representation and also act as a point of contact for the gardai, HSA, coroner’s office and any third parties.

So, three separate courts are invoked; the criminal court, the coroner’s court and the civil court.

If a criminal prosecution proceeds, then it can take a considerable time for this to actually get to court. Meanwhile any inquest or civil case will not be heard to avoid prejudicing a criminal trial. This delay can be very frustrating for the family. A criminal prosecution will be made by the state, such as the state solicitor, based on garda or HSA investigations. If the defendant pleads guilty, the matter then proceeds for sentencing. If the defendant pleads not guilty, the case goes to a full trial in which the prosecution must prove guilt beyond reasonable doubt. This is a very high standard of proof and indeed higher than the civil standard which is on the balance of probability. Whether a defendant is found guilty or not, the criminal trial is sometimes the first opportunity a family will get to see all of the evidence and possibly hear from the accused. Again, a guilty finding will mean the case will proceed to sentencing the accused.

Once either the prosecution has concluded or there is a decision that no prosecution will proceed, then both the inquest in the coroner’s court and any civil trial can take place.

Draft statements of each witness are sometimes provided in advance of the inquest itself. The inquest is literally an inquiry into the cause of death. It does not allow questions of guilt or liability to be raised, so in many ways can be quite frustrating although it can perform a useful function in getting to the nub of what actually happened. This can be especially helpful if there has been no contested criminal case. An inquest will allow for cross examination so that evidence can be tested. A coroner’s court will often have nine jurors who deliver the verdict. There are a limited number of verdicts available in a coroner’s court such as accidental death, misadventure, open verdict, natural causes and unlawful killing.

A civil case for compensation proceeds very much like an accident case for personal injuries and I would refer you to my earlier blogs on the Injuries Board and court procedure entitled

• Injuries Board Assessments; unravelling the mystery
• Accident cases in court; the procedure in simple terms
• Personal injury cases going to trial; what to expect on the day in court

Indeed, the same strict time limits apply. However, fatal accident cases have a number of special features, some of which I have set out below.

The law provides a long list of family members who fall within the category of ‘dependent’ who are entitled to bring a fatal accident claim. This is set out in section 47 of the Civil Liability Act of 1961 which has undergone a number of amendments.  Only one claim can be made and this is done on behalf of all dependents. The claim can be brought by a personal representative, or once six months have passed from the date of death, then by any or all dependants. Where the parties were married, it is usually the spouse who brings a claim. Quite often in practice, some family members will waive their entitlement to their share of damages so that compensation goes to the deceased’s spouse and children.

In my earlier blogs I have referred to a part of compensation known as ‘general damages’. In a fatal accident case, the law provides a fixed amount for this of €35,000 known as solatium. Where there are, for example, ten dependents who have not waived their interest, then this sum is divided between them. Unfortunately, the amount of solatium is an insult to the family left behind and the insult is compounded when this is divided up.

Special damages can include funeral and probate expenses as well as amounts for loss of earnings and loss of services that the deceased would have contributed to his or her family. An actuarial report will be needed to calculate amounts for future losses of earnings and services.

If one of the dependents is a minor ie under the age of eighteen, then even if a case is settled without going to trial, the settlement must be ruled. This means that it must go in front of a judge for approval.

Fatal accident cases are always heart breaking and in reality no amount of compensation can ever do justice to the loss of a loved one.

This article is for information only and does not provide legal advice. If legal advice is required then please contact us at info@vintsolicitors.com

© Philip Vint & Co solicitors 2018

The post Fatal accidents three different courts; the coroner’s court, the criminal court and the civil court first appeared on Philip Vint & Co. Solicitors.

To proceed with a claim for an accident in Ireland, an application must be made to the Injuries Board strictly within 2 years from the date of the injury or 2 years from your 18^th birthday or 2 years from the date of knowledge of an injury. The last category can be complicated and may be open to argument, so it is safer to rely on the first two if at all possible. The application must be accompanied by a medical report and you need to know it has arrived within the 2 year period, so sending it by registered post is preferable.

Once the application reaches the Injuries Board, they will write to each respondent and ask them to revert within 30 days to agree to the Injuries Board process. If a respondent does not agree, then an ‘authorisation’ is issued which is basically a ticket to start off formal court proceedings which we will come to later. If the Injuries Board receives agreement from the respondents to proceed with an Injuries Board assessment, then the Injuries Board will request details of out of pocket expenses known as ‘special damages’ and it will often obtain its own medical report. It has an initial time limit of 9 months (extendable by a further 6 months) from the time it commences its assessment process (which starts after the first 30 days are over) to come up with its assessment. The assessment is essentially a figure that the Injuries Board is saying the case is worth. It is broken down into various out of pocket expenses plus an amount for general damages which is in essence an amount for the injury.

An applicant has 28 days to accept the assessment and respondents have 21 days. If all parties accept this then a formal order of the assessment is made which has the same weight as a court order and compensation is paid over.

If a party rejects the assessment, then an authorisation is issued which we described above as the ticket to start formal court proceedings. Strict time limits restart which are essentially 6 additional months plus the balance of the 2 years left under the first time limit in going to the Injuries Board. The Injuries Board will also issue an authorisation in cases of psychiatric injury. The process is complex and really needs the involvement of an experienced solicitor.

Issuing formal court proceedings for an injury is for another day….

This article is for information only and does not provide legal advice. If legal advice is required then please contact us at info@vintsolicitors.com

© Philip Vint & Co solicitors 2018

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