18th September 2020
On another Zoom broadcast on the 4th September, the new regulations and obligations being imposed on publicans with restaurant licences were discussed. Our contributor made the point that the Irish Council for Civil Liberties had already expressed reservations about how government decisions on Covid 19 penalties are made, this was in light of the Minister for Health bringing before cabinet on the 28th August proposals that a criminal sanction be imposed for gatherings in private houses of more than 6 visitors, which was not passed by cabinet, which concluded that this should be a Civil offence. However, the penalties that would follow have not yet been determined and it is now understood that the matter is being referred to the Attorney General for further consideration. The extra powers for the enforcement of the regulations on publicans via the Gardai were also highlighted and the regulations that were required to have them enforced whereby a Superintendent can direct a Garda to issue a compliance Notice to a publican and that different measures of closure for 1-7 and up to 30 days could follow, but once again as to how this is to be policed requires further clarification. Seamus Gunn said that the latest instalment whereby a publican was now to retain information of a customer attending the premises and consuming a meal at a minimum cost of € 9.00 for 28 days has caused further concern with the Council of Civil Liberties and may also go to the Data Protection commissioner, which our contributor was of the view would be impossible to enforce and was yet another example of rash decisions being made without consultation with the parties that are most affected. He said that he was of the view that there would now be a drive to have the wet pubs open to distract from this and that it was unlikely to be enforced as anything other than a box ticking exercise. The distinction to be drawn between a restaurant/sit down establishment and a pub serving food was highlighted. A lack of direction and certainty about the regulations as to how they have been introduced and enforced to date is going to be a continuing theme in the weeks ahead. Seamus Gunn was of the view that the public would react adversely to this latest development, which could be a step too far.
Listen to the interview here:
18th September 2020
In what was a first for our contributor Seamus Gunn, the medium of Zoom was used to broadcast from the Ramelton office this morning. It led to a discussion on any advantages for the Court system using remote hearings and technology as we look to the future, post Covid pandemic. Seamus was clearly of the view that while technology has a role to play, in particular in dealing with straight forward Consent type Applications and more particularly Commercial cases where papers can be submitted and lodged in advance for consideration by the presiding Judge, who could then take submissions remotely from the representatives, that this, together with the streamlining of the court services with regard to the filing and stamping of documents would bring benefits to the efficiency of the system in the future, it would not be a replacement for the Viva Voce evidential hearings in open court. He referred to the recent English decision in the Family Law division where it was stated that “just because a hearing can be held remotely, does not mean it should be” which was a decision involving the contesting of a final care plan for a child. The Judge was of the view that a “postage stamp image” on a screen was a poor substitute to seeing that person fully present in a court room. Similar sentiment has been expressed in the High Court in this jurisdiction where it is difficult for a Judge to take a view on parties and credibility of witnesses without seeing them present before the court giving evidence. The view was that there would be no substitution for this in the future and that in any case where witnesses had to be cross examined and tested, the courtroom would be the place for this.
A wide and varied Q & A followed, which can be listened to below.
12th May 2020
This week’s show was broadcast from the Ramelton office with some wide and varied areas covered. The initial focus was on the need for support, our contributor Seamus Gunn highlighting the approach being adopted by the insurance industry on refunds of premiums, particularly for car policy holders. Seamus Gunn expressed a strong view that it was totally inadequate to refund a policy holder some € 30.00, the sum announced midweek by two companies, which he described as minuscule in comparison to the profits being garnered annually by the industry from motorists. He gave the example of a premium for a young person averaging at around € 1,000.00 to € 1,200.00 against a backdrop where the level of claims is vastly reduced during this current 12 week Covid period, that there should be a commensurate reduction in keeping with the saving being achieved by the industry, to include premiums for public and occupier’s liability.
He said that this should go hand in hand with concessions on business interruption cover and that such claims should not be resisted where cover is in place, which could make the difference in a business reopening or remaining closed after the restrictions have been lifted. He said that this was in addition to all the government supports that are in place at the moment but that the insurance industry should now step up to the plate and show some largess in order to establish some good will with the consumers. He said that for too long they had been beating the drum of exaggerated and fraudulent claims which was constantly reported in the media with little emphasis on the profits, referring to 2017 when profits in excess of € 200 million were achieved. The position in the UK with regard to commercial rates being abolished for 2020 was also mentioned as an area that could be looked at by government but keeping in mind the cost to the exchequer. The insurance question and in particular the business interruption is likely to give rise to a lot more discussion before the Covid pandemic passes.
Seamus also answers the listeners’ questions regarding the strength of warranties in the sale of defective motor vehicles and the capital acquisitions tax thresholds applicable in gift/inheritance situations.
Listen to Part 1 of the interview here…
Listen to Part 2 of the interview here…
8th January 2020
High Court decision on brain damaged homeless man being held on remand in Mountjoy prison – Highland Radio Broadcast
In an early pre-Christmas Broadcast, the case of the brain damaged homeless man being held on remand in Mountjoy prison was highlighted following Mr. Justice Peter Kelly’s, the President of the High Court, directing papers to be served on the Minister for Justice, HSE, The Irish Prison Service and the Director of Public Prosecutions.
The unfortunate individual has been detained on remand for a period in excess of one year in the high dependency unit of Mountjoy in appallingly filthy conditions, pending allegations of assault against two security officers who approached him while sheltering in the women’s toilets of a Dublin shopping centre.
The policy of the prison that Wardens should not invade a prisoner’s personal space was commented on as there must be many more such prisoners who are deficient in their ability to maintain their personal care, a policy which Seamus Gunn thought should be reviewed in light of the court’s comments.
Further, what is striking about the case is that as far back as March 2019 following an assessment by a doctor, the accused was deemed unfit to plead so at that point it should have become clear that the case was not likely to go to Trial but the individual continued on remand. Seamus Gunn described it as “no man’s land”. The accused could not be discharged because he would be at risk and there were no facilities to cater for him. He suggested that bail hostels were not available for such cases and that statistics were not forthcoming as to the number of persons similarly affected. He said that this further highlighted the necessity for the assistant decision making capacity act of 2015 being implemented in full as there was a mechanism therein to short circuit wardship applications which it is understood is now being processed in this case which he said was the responsibility of the HSE. It is likely that a number of other such examples shall be forthcoming in the coming months to address this awful situation.
Listen to the full Highland Radio Interview Below
15th November 2019
In another wide and varied show which can be listened to on our site, the observation on the recent decision in the High Court on fix charge penalty Notices, may strike a chord with some listeners.
Following the decision of Ms. Justice Úna Ní Raifeartaith on the 8th October in the High Court in Dublin when she delivered a written judgement to the effect that Section 44.10 of the Road Traffic Act 2016 which came into effect on June 2017 is unconstitutional shall have consequences for upwards of 25,000.00 traffic prosecutions currently pending before the courts.
The amendment, as introduced, removed the Defence that was hitherto common, that a fixed charge Penalty Notice had not been received by the recipient. In her ruling, Ms. Justice Ní Raifeartaith held that this Section impinged on the Constitutional rights of an individual to a fair trial.
It seems that a further amendment shall be required to the legislation to allow the presiding District Court Judge to exercise a discretion to accept that the fixed charge Notice had not been received. It may be necessary to remedy the situation further, a view which we have held for some time that fixed charge penalty notices should be served by prepaid registered post and that the benefits of proceeding in this manner would far outweigh the extra costs of such service as on the face of it there would be proof positive that the fixed charge penalty notice was not only posted but received. This matter may likely be revisited in the coming months.
Listen to the full interview below.