Get documents about "Newsletter - Morgan McManus Solicitors
Document Sample
Spring 2009
Morgan McManus
Newsletter
W
elcome to the Spring 09 edition of the Morgan McManus Solicitors
Newsletter. Morgan McManus practise in both the Republic of Ireland and
Northern Ireland, providing an All-Island legal service.
The purpose of this Newsletter is to keep our clients informed of developments – to
ensure that you, our clients, are aware of the skills of our Partners, Solicitors and staff
and of our services. If you don’t have reason to use our services in the near future,
please recommend us to other persons requiring legal services in the Republic of
Brian Morgan and Fergal McManuS
- PARTNeRS
Ireland and Northern Ireland. We rely on your support.
Morgan McManus Morgan McManus Announces Morgan McManus
announces…
launch of New website to present
Affiliation with
London office page 1
Morgan McManus are public place and many other incidents. seminars on
It will also be of benefit to employees
delighted to announce the
launch of an additional website
aggrieved at the manner in which they “redundancy and
have been treated at their workplace.
New Capital Taxes
Group page 1
www.accidentclaimslaw.com. It will however also be of benefit to a reorganisation”
This website provides information Defendant (Respondent) who is being
sued, to the employer who faces a In announcing these
on personal injury claims and
Seminars ‘Redundancy personal injury claim in respect of a Seminars, Brian Morgan Partner
employment law claims. Whether your
& Restructuring’ page 1 factory accident and the employer who in Morgan McManus, stated
accident or employment issues arise
is obliged to deal with a grievance or
in the Republic of Ireland or Northern
disciplinary matter in the workplace. that there has been widespread
www. accidentclaimslaw.com Ireland; whether you are claiming or a concern among employers as to
Claim has been made against you, it is This website deals with personal
New website page 1 injury claims and employment law how they are going to manage
important that you are informed.
claims. More importantly, it deals with in the current climate.
Clones Office As well as comprising information such claims from the perspective of
on processing a Claim, we also look • Will their business survive?
refurbishment page 2 both the Plaintiff and the Defendant
at the claims process from the view of (the Claimant and the Respondent), the • Should they downsize?
the prospective defendant. There is no employer and the employee and all other • Should they implement
Updated Comparative website of this nature in Ireland covering persons who have an interest in ensuring redundancies?
Analysis of Employment accident claims and employment claims that they are fully informed when they • What procedures should they adopt?
from an all-island perspective. It is our are faced with claims of this nature. Is it “last in” then “first out”?
Law North & South page 3 aim to keep this website fully updated
If visitors to this website have any • If they adopt wrong procedures are
by regular news items, letting our clients views as to how the resources of this
PLATO family know the latest developments in these they likely to be sued by disgruntled
website could be improved or indeed, employees?
business succession ever-changing areas of the law. whether they would like us to cover any • Are there positive measures that
programme page 5 This website will be of benefit to other issues relevant to the topics in this employers can undertake to assist
the victim of a road traffic accident, website, we would be delighted if you those employees made redundant in
a factory accident, an accident in a would contact us. seeking alternative employment?
Morgan McManus Continued on Page 2 >>
highlights… Morgan McManus primarily in the areas of property and
commercial law and the associated
taxation implications. Morgan McManus
Debt collection page 3 Capital taxes Group Colin O’Neill is an Associate Solicitor solicitors
in Morgan McManus Solicitors. He is
We are pleased to inform
Employment law page 3
our clients that we now have a
a member of the Society of Trust and
Estate Practitioners. He practices
announce
Microtrade Ireland page 4 dedicated Capital Taxes Group primarily in the areas of property and
probate / administration of estates and
affiliation with
headed by Fergal McManus
Legal Updates page 6-7 and Colin O’Neill Solicitors.
the attendant tax aspects. Harris Cartier
Fergal McManus is a Partner in the
For further information on this
service visit our website at www. solicitors london
Have you been firm of Morgan McManus Solicitors morganmcmanus.com or contact
mis-sold a financial and is an Associate of the Irish Taxation Fergal McManus at fmcmanus@ Morgan McManus Solicitors
product? page 7 Institute since 2003. Fergal practices morganmcmanus.ie are delighted to announce their
affiliation with Harris Cartier
Focus on property page 8 Main Office Solicitors London.
The Diamond, T: +353 47 51011 (ROI) Harris Cartier LLP, a firm founded in
Slough in 1922 and now also with
Clones, T: 028 6632 0102 (NI)
Co Monaghan E: lawmorganmcmanus.ie Continued on Page 4 >>
www.morganmcmanus.com
Morgan McManus appreciate your referrals
page 2
Continued from Page 1 >> afford therefore to get their procedures
wrong when reorganizing their
Morgan McManus business, resulting in Dismissal and
Discrimination Claims from former
to present employees (see Article in this Newsletter
on Implementing Redundancies – A
seminars on Word of Caution).
to keep their clients on the correct
“redundancy and side of employment law, Morgan
reorganisation” McManus will be holding a series of
Seminars in the near future. To find
These are very worrying times for out more and book your place contact
employers. Many will be very busy Debbie at Morgan McManus by email
over the coming years fire fighting (dmcdermott@morganmcmanus.ie) or
to save their businesses and cannot by phone – 00353(47) 51011.
staff & Achievements
Fergal McManus, Solicitor Colin o`Neill, Solicitor
Fergal McManus has been admitted as Colin O’Neill Solicitor was awarded his
National Minimum a Solicitor in Northern Ireland, enabling Diploma in Trust and Estate Planning by
him to undertake practise in Northern the Law Society, Dublin in October 2008.
wage Changes in Ireland as well as the Republic of Ireland. The awarding of this Diploma has led to
Northern Ireland Working particularly in the area of Colin becoming a member of the Society
property law, this has enabled Fergal to of Trust and Estate Practitioners, which
become one of the few practitioners in this is an association of professionals who
The rates for National area who can undertake conveyancing in both jurisdictions. specialise in trusts and estates, executorship, administration
Minimum Wage rose Coupled with his expertise in Capital Taxes, Company Law and related taxes. Members of this association are the most
and Commercial Transactions, this additional qualification experienced and senior practitioners in the field of trusts and
from 1st October will be invaluable to clients of Morgan McManus who require estates. (For more information visit their Website at http://
2008. For workers the one Solicitor with knowledge of their unique business www.step.ie). This expertise will further enhance the service
aged 22 and over the affairs in both jurisdictions. provided by the recently formed Capital Taxes Group in
Morgan McManus.
new rate is £5.73 per CoNtACt coneill@morganmcmanus.ie
CoNtACt fmcmanus@morganmcmanus.ie
hour, up from £5.52.
For workers aged
Brian Cullen, Solicitor Dr. Dolores McMahon
18-21 the rate is now Brian Cullen graduated from Manchester Dolores McMahon joined Morgan
£4.77 up from £4.60. Metropolitan University in 1993 with McManus in 1998 initially working
For 16 & 17 year olds an Honours Degree in Law. He joined in the areas of Litigation and Probate.
Morgan McManus in March 2008 having In 2002 she commenced managing
the rate is now £3.53 completed his Solicitors examinations at the Accounts Department. Dolores is
up from £3.40. NMW the Queen’s University of Belfast Institute now the Practice Manager of Morgan
of Professional Legal Studies. He qualified McManus. On top of her busy schedule
rates will rise again on as a Solicitor in September 2008. Before joining Morgan Dolores took time to complete a Certificate in Legal Studies
1st October 2009. McManus Brian trained with Comerton & Hill Solicitors in from Queens University Belfast in 1999. More recently also
Belfast. Prior to this Brian worked as a paralegal in the in-house she was awarded a MBA (Masters of Business Administration)
legal department of Moy Park Limited who are one of Northern from Liverpool John Moores University in 2006.
Ireland’s largest employers. Over the years Brian has gained a
wealth of experience in litigation and employment law and
these are the areas in which he works with Morgan McManus.
Personal Injury CoNtACt bcullen@morganmcmanus.ie CoNtACt dmcmahon@morganmcmanus.ie
Accident Claims –
stephanie Hannon Denise McKenna
Do you need a Denise McKenna graduated from
If any of you have reason to be involved
Solicitor anymore? in litigation you will have met Stephanie Letterkenny Institute of Technology with
Hannon of the Clones office who works an Honours Degree in Legal Studies and
in the Litigation Department. Stephanie Taxation in 2006. She joined the Morgan
For more information, go to is an Associate Member of the Irish McManus team in 2007 as a Legal
www.accidentclaimslaw.ie Institute of Legal Executives and holds a Executive and, under the guidance of
Certificate in Legal Studies. Fergal McManus, deals mainly in the area
of Conveyancing, working particularly in New House Estates
sales. Denise works in the Clones office where she undertakes
work in both the Republic of Ireland and Northern Ireland.
CoNtACt shannon@morganmcmanus.ie CoNtACt dmckenna@morganmcmanus.ie
Where can I find a
Compensation Claims
Guide that gives Clones Office Refurbishment we now have a very modern office
premises which is in keeping with
the requirements of our ever-growing
information to the They said it would never be done. replaced floors, the broken down walls,
client base. Why not drop in to see the
They thought it couldn’t be done but the new walls, stairs and floors; not to
Employer as well we confounded all our critics and forget the many times the wires were
improvement the next time you are on
Photographs: Eugene T. Hamill Photography
the Diamond!
as the Employee? finally completed the refurbishment cut! That said, it has all been worth it.
of the Clones office over a year ago. Normal service has been resumed and
For better or for worse, we decided we apologize to all concerned who
For more information, go to to remain in situ while the works were inconvenienced. We rounded off
www.accidentclaimslaw.ie were being undertaken. In retrospect, the work by also installing a completely
www.ethamill.com
this was probably not wise but we new networked computer system. This
thought it was the best way to ensure office building has been on the go as
continuance of service. Looking back a Solicitors office since 1895 – and
on it, we did well, considering the built long before that. We believe that
www.morganmcmanus.com
Morgan McManus appreciate your referrals
“ a word on employment law…”
PAGE 3
Implementing redundancy –
A word of caution!
Currently many organisations are It is vitally important that the Migrant workers
experiencing redundancies for the first redundancy is genuine and that (Northern Ireland)
time after a decade of unprecedented employees are selected for redundancy
growth and prosperity. Redundancies in accordance with fair and objective
typically arise in circumstances of: selection criteria. On 29th February
• Business closure; It is also important to remember that 2008 the laws relating
• Rationalisation, where certain roles an employer’s conduct in implementing to employing migrant
are cut or the numbers carrying out a redundancy can be taken into workers changed. The
certain roles are reduced; account by the Employment Appeals
Tribunal when assessing the fairness or Government regards
• Reorganisation, where job
specifications are changed so otherwise of a dismissal. employers as having
that people with different skills/ Adopting incorrect criteria can also a major responsibility
For more information contact either: qualifications are required to do the land the employer before the Equality in preventing illegal
Brian Morgan bmorgan@ job; or Tribunal where the employer, in
morganmcmanus.ie or Brian Cullen • Mergers/takeovers, where two choosing to make particular employees migrant working in
bcullen@morganmcmanus.ie or phone workforces are combined and redundant, offends the provisions of Northern Ireland.
+353 47 51011. numbers need to be reduced. the Employment Equality Acts. It is believed that
a new system of
Morgan McManus launch civil penalties for
employers who
Updated Comparative Analysis of employ illegal migrant
employment law North & south. workers will provide a
more effective means
Updated to include reference to employers are kept alert of changes in
latest changes in Employment Law, the
of tackling those
this growing area of the law.
Comparative Analysis of Employment employers who fail
Brian Morgan and Brian Cullen
Law North and South has been
Solicitors in Morgan McManus are to carry out specified
published on the Morgan McManus
website– www.morganmcmanus.com. unique in this region in that there are document checks on
This is particularly of benefit to the
very few firms in the island of Ireland prospective migrant
who can advise on Cross-Border
many businesses which now trade employees.
Employment Law.
in both the Republic of Ireland and reference document and is widely
Northern Ireland. There are many The Comparative Analysis of acclaimed in the business community The system requires
variations in Employment Law in each Employment Law North and South is as a necessary document on the desktop
Jurisdiction and it is important that updated on a yearly basis as a handy of every Human Resources Manager. employers to check
& copy certain
documents which
Collecting Debt on Both sides of the Border… establish the worker’s
Brian Morgan, Partner in Morgan McManus Solicitors, who holds Practising Certificates in right to work in
both the Republic of Ireland and Northern Ireland, outlines the importance of being familiar Northern Ireland.
with the steps which apply in the Debt Collection process in both Jurisdictions. Where an employer
Because we act for clients who have of knowledge of the processes which against the Debtor. fails to do this a
debtors in both the Republic of Ireland apply in that other Jurisdiction or, These are issues which must be penalty notice can
and Northern Ireland we are often indeed, failure to issue Proceedings now be served by
considered by the Creditor before
asked to explain the different processes in the correct Jurisdiction can lead to
which apply in each Jurisdiction. The costly mistakes. issuing Proceedings and not after he Border & Immigration
Debt Collection process is, by reason has obtained Judgment against the Agency officials.
The Debtor can be sued where the Debtor. At Morgan McManus, because
of the fact that it bound to Court Debtor resides / carries on business or
dates and time limits, slow and, in the of our knowledge and experience
where the original Contract occurred.
of the systems which apply in both
Failure to follow the
reasonable view of the client Creditor This can often give a choice to the
(the person who is owed the money), Jurisdictions, we ensure to advise the new rules attracts
Creditor in the Border area as to
frustrating. This frustration is made whether he issues proceedings in the Creditor on whether his Proceedings a maximum (civil)
worse where the Creditor finds that Republic of Ireland or Northern Ireland. should be issued in the Republic of penalty of £10,000 for
he has reached another stage in the For instance, the Contract may have Ireland or Northern Ireland. Where
process against the Debtor (the person each illegal worker. In
been made in the Republic of Ireland that client at least understands the
who owes the money) only to find that where the Creditor undertakes his processes which apply on either side
addition, knowingly
there are a number of further stages yet business but an Irish Judgment may not employing an illegal
of the Border that understanding can
to be undertaken. be of much benefit to that Creditor if assist the client in coming to some worker is a criminal
Many of these stages involve the Debtor resides in Northern Ireland assessment at the start as to how he
payment of fees to the various state and all his assets / income are based in offence which carries
should proceed.
agencies where the Creditor is often Northern Ireland. a sentence of up to 2
left worrying whether he is “throwing For more information on the various years in prison and/or
While an Irish Judgment can be
good money after bad”. enforced in Northern Ireland it must steps which apply in both Jurisdictions
the full Article on this subject can be
an unlimited fine.
Where a Creditor, familiar with the first go through an application for
process in one Jurisdiction, comes for recognition by the Northern Ireland downloaded from the Articles section
the first time to collect money from a Courts and this will only delay further (Private / Commercial Client) of our
Debtor in another Jurisdiction, lack the enforcement of the Judgment Website at www.morganmcmanus.com
www.morganmcmanus.com
Morgan McManus appreciate your referrals
PAGE 4
Continued from Page 1 >>
Morgan McManus Solicitors announce affiliation
with Harris Cartier solicitors london
Criminal records
(Northern Ireland) offices in London, is one of the Harris Cartier, stated: the affiliation with Harris Cartier, we
largest solicitors firms in the Thames “Having already acted for a can refer and recommend to our clients
Valley. They have specialist departments number of large corporate Irish firms an established and reputable firm in
A new statutory- providing services to both business in england, we are already familiar England with offices in London next to
based framework clients and private individuals. with the requirements of Irish clients the Law Courts. The fact that our clients
was introduced They offer a full range of commercial when transacting business in england. can instruct Morgan McManus and
from 1st April 2008 and private client legal services, We look forward to developing have access to this wide range of legal
including catastrophic Personal Injury this affiliation further with Morgan services in the United Kingdom will be
whereby the criminal and Clinical Negligence, Corporate McManus Solicitors”. of major benefit going into the future”.
history of a potential and Commercial transactions and Commenting on the affiliation Brian
complex multi jurisdictional dispute More information on the services
employee or volunteer resolution and litigation.
Morgan Partner in Morgan McManus provided by Morgan McManus Solicitors
stated: “For a number of years we
can be provided to Commenting on the affiliation provided a limited property service in
can be obtained by visiting their Website
employers & other Justin Neal, Partner and Head of the england to our Republic of Ireland and at www.morganmcmanus.com
organisations. The Commercial Property Department in Northern Ireland clients. Now, through
previous system of
obtaining information
directly from the
Morgan McManus assist on their bottom line by doing business
across the border. Indeed the average
Police has ceased. Microtrade Cross-Border Guidelines company turnover accounted for by
cross-border trade is actually up to
AccessNI is the new 19.3%, from 16.8% in 2007.
body responsible Microtrade Ireland is a Cross Border Business has been produced
in partnership with FPM Chartered The Business Monitor also shows
programme that helps small that barriers to cross-border trade have
for releasing the Accountants, Morgan McManus Solicitors
businesses build contacts, and the Northern Bank. changed dramatically, with currency
information & is markets and partnerships fluctuation cited as their main concern
part of the Northern It contains up-to-date information
across the island of Ireland. on a variety of cross-border issues by 28% of companies, well ahead of
Ireland Office. The programme is an initiative of with an additional chapter on debt concerns about political instability or
the County & City Enterprise Boards collection for these times of ‘credit the availability of business elsewhere.
of the Republic of Ireland, Enterprise crunch’. The questions answered on These guidelines, which can be
Northern Ireland and InterTradeIreland. tax, legal and currency issues are downloaded from the Microtrade
They offer a range of supports based on those most frequently asked website at www.microtrade.org are
including networking events, funding concerning cross-border business. It recommended as a very good source
and training. Further details of their also contains contact details for the of practical business tips for those
services are available on their Website experts behind the guide. involved in cross border trade. The
at www.microtrade.org. Cross-border Guidelines have also been published
The latest findings from
trade offers immense opportunities in Booklet form by InterTradeIreland
InterTradeIreland’s all-island Business
for business expansion, but there are and can be obtained by telephoning
Monitor survey show that cross-border
a number of legal and administrative
trade still offers great opportunities Eoin Magennis for a copy at 028 ( from
requirements to bear in mind.
to companies even in the current RoI 048) 3083 4100. the Booklet is
GUIDelINes For DoING trADe economic climate. The survey which also available to be downloaded from
oN tHe IslAND oF IrelAND canvassed 1,000 companies found the Morgan McManus website at
The 2008 edition of A Simple Guide to that 40% of the companies are helping www.morganmcmanus.com.
Brian Morgan is invited to speak at the “Ask the expert”
session at Microtrade export seminar october 2008
Where can I find out This event organized by and to learn how to access opportunities Pictured left to right at the MicroTrade event
holding the latest issue of the Simple Guide to
in NI, ROI and other markets during this
information about MicroTrade Ireland, open economically challenging period. Brian
Cross-Border Business : Brian Morgan Morgan
InjuriesBoard.ie to companies from multiple Morgan spoke at the “Ask the Expert”
McManus Solicitors, Michael Farrell FPM
Accountants, Orla Charles, Senior Dealer,
sectors, focused on the session on legal issues affecting Cross- Danske Markets/National Irish Bank and
(previously known practicalities of exporting; as Border business. Breandán Casey of MicroTrade Ireland.
as PIAB)? they apply to micro-enterprises
and small businesses.
For more information, go to Particular attention was given to
www.accidentclaimslaw.ie North / South cross-border trading.
The event gave attending companies
opportunities to participate in workshops
that increased knowledge and gave an
in-depth understanding of the exporting
process, and to gain advice and tips from
successful Irish businesses that have
benefited from the export market.
The event afforded attendees a unique
opportunity to ask experts in the fields of
finance, law and business for advice on
issues directly effecting their businesses,
to network with other businesses and
representatives from business support
agencies from across the island of Ireland
www.morganmcmanus.com
Morgan McManus appreciate your referrals
PAGE 5
would be able to pay the debt when
when can a Director be made it fell due for payment as well as its
other debts (taking into account
personally liable for the Debts contingent and prospective liabilities).
Obviously this is a cause of great
of a Company? concern to directors who perhaps are
experiencing cash flow difficulties.
Fergal McManus advises that in the current difficult trading In an era where many businesses
conditions we are likely to see a lot more instances of the are experiencing cash flow problems
Courts making Directors liable for some or all of the debts it is very easy for a Director to fail
that test and expose him or herself to
of insolvent companies. the prospect of personal liability. The
As the economic difficulties continue We examine each of these below: courts approach in imposing personal
Company Directors are increasingly liability is based on the amount of the
FrAUDUleNt trADING
facing the prospect of insolvent Company’s loss directly referable to
liquidation of their companies. In Fraudulent Trading is the reckless trading. Unlike fraudulent
answering the question posed one also a criminal offence trading personal liability cannot be
must first understand the difference but in the context of attaching personal imposed on a punitive basis for the
between Shareholders and Directors. liability to the Directors, it arises where entire debts of the Company. The
Shareholders are the members of the the Directors intended to defraud the law does however provide a defence
Company who contributed capital creditors of the Company and had where the Director can show that he
(even if only nominal) when the knowledge of such intent. Fraudulent or she acted honestly and responsibly
Company was incorporated or else Trading occurs if the Directors of the in relation to the conduct and affairs of
Company continue to carry on business the Company.
they acquired Shares in the Company
or to incur debts at a time when they
Is the Statute of
at a later stage. The shareholders own FAIlUre to KeeP ProPer BooKs
the Company. In the traditional sense know that there is no prospect of oF ACCoUNt Limitations (the
paying the Creditors or indeed if the
it is the shareholders who have limited
Directors incur Credit on behalf of a Personal liability for the Director period within which
liability i.e. if the company is insolvent arises where the Court considers
then the Creditors of the Company Company knowing that there is no
that the failure by the Directors to
Proceedings must be
good reason to think that funds will
cannot chase the shareholders
personally for the Company debts. be available to pay the Debt when it keep proper books of account has issued for an accident)
contributed to the Company’s inability
Apart from one or two technical becomes due or shortly thereafter. The
to pay its debts or has resulted in a the same in Northern
exceptions, Shareholders do not have Courts may impose personal liability
anything to worry about in the context on Directors found to have fraudulently substantial uncertainty as to the assets Ireland as it is in the
and liabilities of the Company or it
of Insolvency. traded on the basis of a compensatory
substantially impeded the orderly Republic of Ireland?
or punitive award. By compensatory it
The matter is quite different winding up of that company. The
is meant that the director will be made
for Directors who are the persons Courts approach in imposing personal For more information, go to
personally liable for the loss caused
appointed by the Shareholders to run liability on foot of this heading tends
the Company.
to the company directly referable to www.accidentclaimslaw.ie
the fraudulent trading. This may only to be on the basis of the loss resulting
In a small private company the constitute part of the debts of the to the Company by virtue of the failure
Shareholders and Directors are very Company. More dangerously for a to keep proper Books of Account. It
often one and the same people. does not trigger personal liability by
Director, the court is entitled to make
Nevertheless the distinction is the Director personally liable for the
the Directors for all of the unpaid I`m an Employer. My
important and it is understandable that Debts of the Company.
the law should impose a significant
entire debts of the Company where
CoNClUsIoN
employee is making
there has been a serious wrong doing
burden on those running the Company and the Court believes that a punitive With the current regulatory a Claim against me
to do so in a reasonable manner and award is appropriate.
without abusing the benefits of limited
environment and the difficult trading but my Insurance
reCKless trADING conditions we are likely to see a lot
liability. Generally it is in the context
Reckless trading is a more difficult
more instances of the Courts making Company has declined
of Directors who allow their Company
to continue to trade while such a concept to encapsulate in a short
Directors liable for
some or all of the
Cover? Where can I
Company is insolvent that triggers definition. There are a number of tests get information on
debts of insolvent
personal liability. There are three main but the element of reckless trading that
companies. The
instances in which a Director may be is likely to concern most Directors
advice is simple, if
what I need to do?
made personally liable for the debts of is known as “Deemed” Reckless
you are getting into
the Company. These are: Trading where a Director can be trouble consult your For more information, go to
1. Fraudulent Trading made personally liable for the debts of Accountant and
his company if he was a party to the www.accidentclaimslaw.ie
2. Reckless Trading Solicitor at
contracting of a debt by the Company the earliest
3. Failure to keep proper Books and did not honestly believe on opportunity.
of Account reasonable grounds that the Company
My Employee has
Morgan McManus contribute to PlAto Family Business been absent from
succession Programme work this week.
I have received a
FPM Accountants Newry were
appointed by PLATO Blackwater to Sick Note from her
plan, co-ordinate and manage a PLATO doctor which states
Blackwater Family Business Succession
Course for businesses located in the that she is suffering
Monaghan and Armagh areas, over
a twelve week period. FPM gave
from “Occupational
workshops during the course assisted Stress”. Should I be
by Brian Morgan and Fergal McManus
of Morgan McManus Solicitors.
worried about this?
Pictured at Plato Blackwater Family Business
Succession Course Workshop are Brian Morgan
For more information, go to
and Fergal McManus of Morgan McManus www.accidentclaimslaw.ie
Solicitors with Feargal McCormack of FPM
Chartered Accountants and some of the delegates
who attended the Course.
www.morganmcmanus.com
Morgan McManus appreciate your referrals
PAGE 6
Legal updates…
Your update on the latest commercial and private
How do I defend client legal developments
a Personal Injury
Claim?
For more information, go to Brian Morgan advises…
www.accidentclaimslaw.ie
what is Mediation? third party who has the power to 27th October 2004. The benefits of
adjudicate on the matters before him/ ADR (Alternative Dispute Resolution)
Mediation is part of a her and impose an outcome. and Mediation training have been well
recognised by the Courts. Continually,
system of Alternative Dispute Whilst a Mediator is an independent
the Courts are encouraging parties
third party the role of a Mediator is one
I crashed my car Resolution and is considered to
of facilitation rather than imposition
to avail of Mediation in order to
but the other driver be a key tool for the resolution of an outcome. Therefore Mediation
resolve disputes at minimum cost
of disputes between parties. and expeditiously. Morgan McManus
allows parties to avoid the litigation of
is not insured. a dispute in front of a third party.
Solicitors have always been conscious
It is a voluntary, non-binding, non- of encouraging clients, whether they
What should I do? adversarial and without prejudice Having completed seminar are in family, business or employment
dispute resolution process that allows attendance and assignments at the disputes, to resolve those disputes with
For more information, go to the parties involved in the process to Queens University of Belfast Brian least possible hurt to family or damage
www.accidentclaimslaw.ie find a mutually acceptable outcome. Morgan, partner in Morgan McManus to business and the availability of this
This is unlike an adversarial litigation Solicitors was awarded a Certificate in service to clients of Morgan McManus
process in front of an independent “ADR and Mediation Training” on the Solicitors is of definite advantage.
Are Solicitors and Counsel the only Advisers who can claim confidentiality on their
The other driver advices during the course of advising clients on Disciplinary Proceedings?
claims he is suffering In the UK case of Stephen Mooney and Riccardo Cafolla v Andras House Limited (Case 185/05FET
from Post Traumatic and 210/05 FET) the Tribunal was satisfied that documentation relating to communications passing
Stress Disorder. between the respondent and Peninsula Human Resources Advisers during the disciplinary and appeals
process is not subject to legal professional privilege or litigation privilege because the advisers were
What is that? not legally qualified. communications with Peninsula during the disciplinary process.
For more information, go to The Tribunal stated that privileged claimants’ representatives all written
www.accidentclaimslaw.ie advice should be strictly confined communications with Peninsula
to legal advisers such as solicitors during the disciplinary process.
and counsel, who are professionally
This decision will be an unwelcome
qualified, who are members of
professional bodies, who are subject reminder for non-professionally
to the rules and etiquette of their qualified advisers (such as employment
professions and who owe a duty consultants and also to their clients)
to the court. Accordingly an order that their communications and advice
made was against the respondent can be the subject of discovery during
employer to produce to the a hearing.
Fergal McManus advises…
retirement relief the business for the previous 10 years. period of not less than 10 years prior
In a farming context, this often to the initial letting of the land.
extended - roI led to unfairness as, very often, older Some further tweaks to the
farmers let their lands and this was legislation now ensure that persons
Retirement relief exists to
not considered to be sufficient “use transferring their farm or business
give tax relief against Capital for business purposes” to qualify for to the child of a deceased child
Gains Tax (“CGT”) for over retirement relief. The requirement (grandchild) will now be able to
55’s who sell or give a gift of that the retiring person should have obtain the benefits of Capital Gains
their business or farms. actively worked the assets for the Tax retirement relief.
previous 10 years has now been It is somewhat unfortunate that the
The first significant change to take adjusted, but only in the case of a gift
place under the Finance Act 2007 was Minister for Finance did not take the
or transfer by a retiring farmer to his opportunity to extend the retirement
to extend the tax relief threshold from son or daughter. relief to farmers who have been letting
€500,000 to €750,000. This means
It has always been the case that a their lands for some years and then
that, subject to certain conditions, an
transfer from a parent to a child was proceed to sell or gift it to someone
individual aged 55 or over, who is
not subject to any upper value limit other than their child.
disposing of a business or farm will
under retirement relief legislation. A
have no Capital Gains Tax liability,
retiring farmer can now obtain relief
provided the proceeds are less than from Capital Gains Tax, if the land
€750,000. in question had been let for a period
One of the pre-conditions of of not longer than 15 years, ending
obtaining retirement relief under with the date of the disposal to his
Capital Gains Tax legislation is the child and it must have been owned
requirement that the assets transferred and used for farming purposes by
must have been used for the purpose of the farmer making the disposal for a
Remortgaging or buying a farm in
www.morganmcmanus.com
Northern Ireland?
Whatever your circumstances, we can provide financial solutions to
Morgan McManus appreciate your referrals
problems you encountered on the high street.
Whether you are looking to start your own business, raise working capital
PAGE 7
Have you been mis-sold a independently with claims from subject to appeal to the High Court.
consumers about their individual dealings Morgan McManus Solicitors provide
financial product? with all financial service providers that legal services to assist complainants in
Since the establishment of have not been resolved after they have their dealing with the Financial Services
been through the internal complaints Ombudsman
the Office of the Financial resolution system of the providers. The
Services Ombudsman in For further information, please
Ombudsman is, therefore, the arbitrator contact Fergal McManus at fmcmanus@
2005, it has become much and is impartial. morganmcmanus.ie
easier for a consumer to All personal customers, limited
obtain compensation where companies with a turnover of €3
they have been sold financial million or less, unincorporated bodies,
charities, clubs, partnerships, trusts,
products that are not suitable etc can complain to the Ombudsman.
for their circumstances. It is a free service to the Complainant,
The Financial Services Ombudsman compensation up to €250,000 can be
is a statutory officer who deals awarded and the decisions are binding,
Colin o’Neill advises…
Getting out of a Property Contract
Colin O`Neill Solicitor advises that there are sometimes ways to get the reluctant Purchaser released
from what might have been a legally binding Contract of sale.
In the current economic climate appropriate Planning Permission, 7. FrUstrAtIoN
many Purchasers of properties which is not obtained, then the This can occur where an event
with long closing dates have found party relying on the condition takes place which results in a
themselves in a position where, had will be able to (what is known situation where the intention of
they been able to see into the future, as) “rescind” the Contract and the parties to the Contract cannot
they perhaps would not have bound effectively walk away. be met. The parties to a Contract
themselves to a contract in the first cannot foresee every eventuality
place. Before the economic downturn, 3. FrADUleNt
MIs-rePreseNtAtIoN which will occur. For example, if
purchasers who wished to be released the subject matter of the Contract What about
from a contract, might have been able This can occur if the Vendor or
to successfully negotiate with the his agent (such as, an Auctioneer)
is physically destroyed before Farm Accidents?
the Contract can be performed
Vendor Builder/Developer their exit makes statements which are untrue then that Contract is said to be
from the Contract as the Vendor may and which he knows are untrue. frustrated. This will usually be an For more information, go to
well have felt confident that he would If the Purchaser has entered into event for which neither party can www.accidentclaimslaw.ie
be able to secure a fresh Purchaser the Contract in reliance upon said be held responsible. However, the
at, in all likelihood, an increased sale statements and this can be proved, question of insurance will clearly
price. However, those Purchasers then the Purchaser may be entitled be an issue here and the Purchaser
who have bound themselves to a to regard the contract as at an may still be kept to the Contract
Contract are undoubtedly now finding end. if, for example, the property is
such Vendors less willing to allow 4. CoNtrACt Not eVIDeNCeD insured and the Vendor can have
Purchasers to exit a Contract. IN wrItING the property re-instated. What is a
In recent times, vendors have been In Ireland, under the Statute of 8. IlleGAlItY “Compromise
swifter to utilise their own remedies
under the Contract, including the
Frauds 1695, a Contract for the
sale of land must be in writing in
A situation may arise where Agreement”?
right to forfeit a contractual deposit a Contract is unlawful on its
order to be enforceable. Therefore, face. For example, the Vendor
or to force specific performance of a Purchaser cannot be compelled For more information, go to
the Contract – in effect compelling a may not have complied with a
to complete a Contract unless that statutory requirement in relation www.accidentclaimslaw.ie
purchaser to complete. Contract is physically reduced to to the property and therefore any
Below, I look at possible ways writing and is signed by him. contract for its further sale cannot
in which a purchaser, who is be enforced.
contractually bound to a contract, 5. IMPossIBIlItY oF
can seek to have that contract set PerForMANCe 9. INsolVeNCY oF tHe
aside, thus enabling the purchaser to This can occur where something, BUIlDer/DeVeloPer
Increase in Annual
walk away. which is not foreseeable at the If it comes to light after a Contract
time the Contract was entered into, has been entered into between leave (Northern
1. DUress happens, which will prevent the a Builder/Developer and a Ireland)
A contract entered into where Contract being performed. For Purchaser that the Builder or
either party has been coerced into example, if two parties enter into a Developer has in fact become A worker’s minimum
so entering is not enforceable. Contract for the sale of land which insolvent then a Contract may be
Duress will exist where a person land is then compulsorily purchased set aside as generally the Builder statutory leave
has not entered into a Contract by a Local Authority then the original or Developer will have given entitlement is to be
freely and where in fact there has Contract cannot be performed various indemnities in relation extended from 4
been force or other means applied between the original parties. to the property. In that situation,
to coerce a person into a Contract. where the Builder/Developer weeks to 5.6 weeks
An example of this would be 6. MIstAKe is insolvent, these indemnities commencing on
where a person is put in fear of This may occur where both parties cannot be relied upon and may 1st April 2009. This
physical harm unless they enter to the Contract have entered into result in the Purchaser being able
into a Contract. it upon a fundamental assumption to claim that a fundamental term means an increase of
which goes to the root of the of the Contract has been breached. 8 days per year for a
2. BreACH oF A Contract and which assumption These routes out of a binding
FUNDAMeNtAl terM full-time worker & a
turns out to be false. If both parties contract will only apply in very
This can take place where a can be regarded as having in mind particular circumstances, as has pro rata increase for
contract is made subject to a the fundamental assumption at the been outlined. However, where part-time workers.
condition being fulfilled or an time they entered into the Contract purchasers feel that their set of
event happening. For example, if without which they would not have circumstances do fall into any of
a Contract makes its enforceability so entered it, then the Contract the above categories they should
subject to the obtaining of an may be void. take immediate legal advice.
www.morganmcmanus.com
Morgan McManus appreciate your referrals
“ Focus on...Property ”
PAGE 8
Morgan Investment Property and
McManus Mortgage Arrears –
services Beware, you could be pursued
Brian Morgan, Litigation Partner with Morgan McManus,
Private clients advises Purchasers not to abandon their Loan obligations.
• House and Property transactions
• Wills and Administration of Some purchasers, namely those balance due. the Debtor`s assets with a view to
Estates / Estate Planning who have bought investment Debtor’s Credit rating. discharging the Debtor’s liabilities
properties, neglect to seek advice to his Creditors.
• Compensation Claims. A further difficulty for the Debtor
with regard to their liability to But I live in Northern Ireland -
the Bank. They panic, incorrectly would be that the registration of a
Business and commercial clients Judgement Debt against him would sure they could not get a republic
believing that, because they cannot
• Commercial Transactions and affect his Credit Rating for the future of Ireland Judgment against me in
afford their Mortgage repayments,
Agreements/ Partnership and would inhibit his ability in the Northern Ireland?
they might be forced by economic
• Commercial Property / future to source Bank Finance. More Because a Debtor lives in Northern
circumstances to forego the
Commercial Lending significantly, even if a Debtor falls Ireland does not mean that the Bank
investment and discontinue
behind in the repayments of his
• Development Land Transactions/ their Bank repayments. This has could not pursue him for payment.
Mortgage this fact will appear on
Housing Estates Sales happened in the current climate It has always been possible to
his Credit Rating Report. That is, this
• Litigation Services in situations where investors have register a Judgement obtained in one
will occur even without the issue of
purchased houses which they then Jurisdiction in another Jurisdiction
• Mediation and Arbitration Proceedings against him.
cannot rent out or where they for the purpose of enforcement.
• Construction Contracts have bought development sites for But what if the Debtor owns no This has been made even more
& Litigation the purpose of construction of an assets other than his Family Home?
simple for Creditors by reason of
• Insolvency investment dwelling house and then sure they can`t take blood from a
the introduction of Regulation
run into financial difficulty with the stone?
• Employment and No. 805/2004 by the European
Industrial Relations project. From hereon, we`ll call the The Debtor may believe that, Parliament and the Council on the
Purchaser a “Debtor”, because that because he owns no other assets
• Regulatory Law 21 April 2004 which has created
is effectively what he has become and his Family Home is in joint
• Taxation a European Enforcement Order
once he has taken on a Mortgage. names with his spouse, that the
(“EEO”) for claims throughout the
• Cross-Border legal Services. A number of questions generally Creditor would not be able to
arise. EU. The EEO avoids the necessity to
pursue him. Not so! The likelihood
go through complicated procedures
• Capital Taxes Group Can the Debtor cease paying his is that the Creditor would register
a Judgement Mortgage against the which previously existed and this
Mortgage? will now make it easier for creditors
Benefits of Using Morgan Debtor`s interest in the Family
McManus solicitors The difficulty for the Debtor in Home. The effect of this is that if the in one jurisdiction to pursue a
doing so is that the Bank, holding a Debtor subsequently decides to sell Debtor in another Jurisdiction.
• Practise in the Republic of Charge/Mortgage over his property,
Ireland and Northern Ireland and the Family Home he will be obliged what should I do?
will issue Proceedings against him to pay the debt together with legal
carry full professional indemnity for payment of the arrears and We never wish to alarm Purchasers
insurance in all jurisdictions. costs and interest (at the rate of 8%
seek an Order for Possession of the but it is important that they realize the
• Conveniently located in the per annum) from the proceeds of
property from the Court with a view sale. More importantly, if the Debtor consequences of any decision made
Border area. to selling the property to pay off any in haste and particularly where they
seeks to remortgage his Family
• Vast litigation experience. arrears. The Bank will also obtain an Home at a later date (for instance, to might take free advice from a non-
• Expertise in complex Cross Order for Costs in such Proceedings. release funds to assist him in getting lawyer (very often the worst advice
Border Litigation. These could be quite substantial. through the current credit crisis) he possible!). It is our experience that
• Specialist services in But the bank can then clear the will not be able to do so without where a Debtor approaches his/her
Employment, Commercial, Mortgage and everyone is happy? first discharging that Judgement Bank and explains their difficulties
Construction and Property Law Not necessarily so! In the event Mortgage. the Bank will usually come to some
and related services. that the sale proceeds of the property Regardless of this, the Judgement arrangement with a view to assisting
• Act for number of large clients are not sufficient to cover the arrears Creditor has many other means of the Debtor, such as deferring capital
with businesses on both sides (and there is every likelihood that pursuing the Debtor for payment, repayments for a period of time.
of the border. this would occur in the current one of which would be to seek to After all, the banks have been
• It is our strategy to act for economic climate) then the bank have him adjudicated a Bankrupt, obliged to eat humble pie recently
larger clients who place would be entitled to pursue the where the Official Assignee in and know too well what it is to be
importance on immediate Debtor directly for payment of the Bankruptcy would take charge of cash-strapped!
response to their legal
requirements.
• State of the art computerised
Practice Management System
which allows us to deliver an
efficient service.
Morgan McManus
• A highly educated, experienced Main Office: The Diamond, Clones, Co Monaghan
and motivated professional team. T: +353 47 51011 (ROI) T: 028 6632 0102 (NI)
E: lawmorganmcmanus.ie
Photographs: eugene t. Hamill Photography
Clones, Co. Monaghan
E: emhamill@eircom.net
T: 047 51788 M: 087 9948585
www.morganmcmanus.com www.ethamill.com
www.morganmcmanus.com
Morgan McManus appreciate your referrals
