10th March 2021
Another lively Zoom encounter with Greg Hughes this morning opened with the topic of cross border enforcement of driving bans, Seamus Gunn highlighting the difficulties arising and the complex legislation issues that require to be addressed by the UK in the wake of their exit from the EU. He explained the cross-border enforcement directive of 2015, which was initially taken up by 25 out of the 28 member states with Ireland, England and Denmark postponing and that following agreement between Ireland and England in August 2017, the recognition of driving bans which gave effect to the ban following the driver to their own jurisdiction came into force. He said that the issue that now arose was that whether as a result of Brexit, the mutual recognition remained in force. The EU directive was pre 2016 when Brexit was voted on in the UK. He was of the view that it would take a UK act of parliament to rescind the recognition but the difficulty that arose in practical terms was whether an EU Directive had to be observed in the meantime. He said that this was part of the unravelling and that while it may be played out in the courts, it would be up to the UK to bring in appropriate Legislation under a raft of headings to give effect to the exit. He explained how prior to Brexit, orders would have been enforceable across the EU. He made the point that the complexities have not been addressed and that while there is an agreement in place, the fleshing out of the nuts and bolts of the Legislation that is required to give effect to it has yet to follow, a topic which no doubt will have to be revisited in the future.
The Q & A session varied from Testamentary matters to Medical negligence to Statute of Limitation periods, being wide and varied.
Listen to the full interview below.
16th February 2021
On another Zoom morning following the introduction of new Government Legislation in respect of mandatory 14-day quarantine for passengers arriving from outside the State who fail to remain at the address noted on the passenger locator form, the penalties for noncompliance being a fine of up to € 2,500.00 or 6 months in prison, or both and the enforceability of the regulation were discussed in some detail. Our contributor, Seamus Gunn, was of the view that the regulation was unenforceable, he said that it distracted from what he believed was the bigger picture, being the tardiness with which the vaccine is being rolled out within the jurisdiction, comparing figures of 20% to date in the UK, 14% in Northern Ireland, with less that 2% in this country. He said it was not the time for further regulations which the Gardai had not been given guidelines as to how to enforce and in his view were unenforceable. He also put forward the scenario of an individual travelling into Northern Ireland and then travelling South. He referenced the Constitutional protection of one’s home and the requirement of a search warrant if it is to be entered. Greg Hughes highlighted the lack of accessibility to the Nphet evening press conferences/briefings. Seamus Gunn was of the view that the matter could be raised in the Dáil which was the proper forum in order to obtain answers to obvious questions in relation to the vaccine delay. He said that while the cavalry was coming, they had not arrived yet.
A wide and varied Q&A followed, kicking off with the complications that could arise with refunds on holiday/airline bookings.
Listen to the full interview below.
19th January 2021
On another busy Zoom show to start the beginning of 2021 the discussion revolved around the legal implications of the riot on Capitol Hill on the 6th of January when Donald Trump supporters attempted to stop the count of the electoral college vote and the ratification of President Elect Biden by invading Capitol buildings, the actions being widely condemned both nationally and internationally. Our contributor was of the view that the sanctions that are currently available, being the invoking of the 25th amendment of the Constitution to remove President Trump from office and/or impeachment would not likely come to pass due to the practical time constraints. He thought of the 2 proposed sanctions that the latter was more likely if the republicans wanted to distance themselves from President Trump. Seamus Gunn was more interested in the possible criminal sanctions that could follow after the 20th of January when President Trump leaves office, highlighting that incitement to riot is illegal under US federal law and conviction on such a felony could attract a heavy custodial sentence, in some states 10 years. He also reminded Greg Hughes that there are other investigations which have been ongoing for a considerable number of years, some of which were being addressed by the District Attorney of Manhattan and that he thought that President Trump’s latest statement where he mentioned reconciliation and an orderly and seamless hand over of power, that this was more as a result of an apprehension on his part as to what would follow after he left office by way of a criminal investigation. Greg Hughes put forward the proposition that President Trump may intend to start a new party to rival the Democrats and the Republicans. Seamus Gunn thought this highly unlikely as his support base would be critically eroded by his actions of late and that the vast majority of Republicans would not go with him. He was also of the view that this could be the beginning of the end of Donald Trump’s future political ambitions. He expects more to follow in the coming days and weeks, that may be more interesting after President Biden has been inaugurated – “May you live in interesting times”.
10th December 2020
On another busy Friday and our 9th remote contribution to the Greg Hughes Show, the early discussion revolved around the report by James Hamilton, the former Director of Public Prosecutions, published this week on white collared crime and the agencies investigating Corruption, Fraud and Economic crime. Our contributor, Seamus Gunn, was of the view that there are already 3 agencies in place, being SIPO (Standards in Public Office Commission), the ODCE (Office of the Director of Corporate Enforcement) and the DPP (the Director of Public Prosecutions), but what was required was an emphasis on bringing together the various disciplines and properly funding them with the resources necessary to tackle an issue which has been ongoing for decades. He referred back to the Flood and Moriarty Tribunals in the late 1990s, both of which went on for the better part of a decade plus, Flood investigating planning matters while Moriarty’s emphasis was on payment to politicians.
Seamus Gunn also referenced the collapse of the prosecution of Sean Fitzpatrick by the Office of the Director of Corporate Enforcement in 2017 as a result of the potential infringement of his Constitutional Right to a Fair Trial, making the point that the issues that white collar crime give rise to and the remedies needed to tackle them have been in existence for some time and that while there may be the will to tackle the matter, the way has not yet been found. He highlighted some aspects of the recommendations in relation to search warrants to obtain electronic passwords, the extension of time for holding suspects to 7 days for the purpose of investigation, the required legislation to deal with former members of the Oireachtas who have contravened obligations while in office, as well as tackling nepotism and the improper use of influence, all of which he said would go a long way to addressing the issues but without the resources and the determination to see it through, he had some reservations. A comparison was drawn between insurance fraud investigation and white-collar crime. Our contributor was of the view that insurance fraud would pale into insignificance when measured against the potential criminal activity involved in managing € 1.8 trillion, which is Ireland’s exposure and risk to economic crime in the financial services. He said that while the report and the recommendations and the review was to be welcomed and the response to it, he would remain somewhat skeptical about its implementation going forward.
Some interesting land issues arose on the following Q&A session which continue to give rise to disputes between neighbors.
10th December 2020
The virtual broadcast kicked off with the inevitable intro discussion on the presidential election, in which the count continues and in particular the attempts by the incumbent President Trump’s attempts to derail the count process by court challenges. Seamus Gunn was of the view that there was no merit in such an approach, that it was extremely damaging to democracy and it was bizarre to suggest that a legal challenge could be mounted without any evidence to back it up, referring to the only requirement to mount such a challenge was to make an allegation of fraud or wrongdoing in the postal process and name the county precinct township in which it was alleged to have occurred. He was strongly of the view that such an approach would not reach the bar of establishing a prime facie case to be adjudicated upon in this jurisdiction and he had reservations whether such actions on the part of President Trump would reach the Supreme Court. He said it was incredulous to consider that while the Republicans wanted to stop the count in States in which they were ahead such as Georgia and Pennsylvania, but in the same breath, wanting it to proceed in the likes of Nevada and Arizona, where they were behind. Notwithstanding the attitude of the republicans, he thought that in 4 years’ time, that Trumpism would still be present and it could be in the form of the next generation. He had reservations about Vice President Biden going forward, especially as the power which lay in the senate, where the democrats are likely to be in the minority, could obstruct legislative reforms. He referred to Biden’s 2 terms as Vice President in the shadow of Barack Obama and expressed the view that a couple of years into his term, there could be a hand over of power to his Vice President Kamala Harris.
There was then a discussion in relation to the perception of truth, Greg Hughes expressing the view that there are 2 sides to it, with which Seamus Gunn did not agree, explaining that democracy was based on truth and that it was facts that were established in a court of law that were the measure of what was fact or fiction.
The Q&A session that followed revolved around estates and an interesting insight into neighbors and disputes.
10th December 2020
On another busy, remote broadcast on the 2nd October the case concerning Ryanair’s challenge to the Government’s measures which were announced on the 21st July in respect of travel restrictions were highlighted as the judgement was handed down earlier. The High Court ruled that the Government’s advice against nonessential travel to most countries due to the risk of Covid 19 infection is legal. The essence of the challenge was in respect of a claim by Ryanair that the advice was mandatory in nature and had the same effect as regulations but that it had not been introduced by any Acts of the Oireachtas and was therefore unconstitutional and in breach of the 1970 and 2020 Health Acts, the European Convention of Human Rights and the Charter of Fundamental Rights. It was the contention of the State that there was no mandatory nature in the measures, that they were advisory only, this point was referred to in the context of the latest announcement in respect of national Covid 19 restrictions prohibiting more than 6 gathering in any one house and curtailing such gatherings to the one family. Seamus Gunn was of the view that this was impractical and impossible to police. A debate followed in relation to measures restricting one’s rights in their family home and the powers that would be necessary in order to implement such actions. Our contributor was of the view that there would be a better argument to be made on the Constitutional front if any such regulations were introduced, pointing out that while they had been mooted to be referred to the AG for consideration, it seemed that they had been shelved to date. A view was also proffered that it was time to pursue a strategy of more conversation and less alienation, pointing to recent examples in respect of student gatherings on the reopening of colleges.
A lively Q & A session followed, which included some interesting questions on different aspects of Wills.
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…