The ‘inherent jurisdiction’ of the High Court is an interesting relief that owes its origin to the Common Law, but in Ireland, it is enshrined in our constitution. Article 34.3.1° provides: ‘The courts of first instance shall include a high court invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal’. In October 2023, the High Court issued a Practice Direction (these are procedures to be followed when bringing proceedings before a court) aimed at people who lacked capacity. The Practice Direction in full is available on the Courts website at HC123 - Inherent Jurisdiction (Capacity) Applications but in short states that: 1. This Practice Direction is intended to apply to all applications made pursuant to the inherent jurisdiction of the High Court for the detention and treatment of people who lack or are alleged to lack capacity. These applications will appear in the Inherent Jurisdiction (Capacity) List. 2. This Practice Direction will come into operation on 2 October 2023 and is issued in accordance with the general authority of the President of the High Court and sections 11(12) and (13) of the Civil Law (Miscellaneous Provisions) Act 2020, insofar as it relates to remote (or hybrid) hearings. (Courts Website) An example of the exercise of this doctrine came before the High Court recently. The case involved a woman who lacked capacity due to anorexia nervosa. Her case was before the High Court’s ‘ inherent jurisdiction ’ list. In this list, orders are sought to vindicate the constitutional rights of people who cannot make decisions in their own interest due to a lack of capacity. In this case, a High Court judge had previously made orders to the Mater Hospital for the woman’s detention and treatment at the Mater after hearing her body mass index (BMI) was falling dramatically and that her condition was that she was close to death. The orders had been sought by the Mater Hospital, but it transpired that only one doctor was aware of the orders. When this doctor went on a week’s leave, the woman was assessed as medically stable and ready for transfer to another medical facility. This amounted to a breach of the orders that had been made and was deemed an ‘illegal movement.’ This transfer had a detrimental effect on the woman as she had become nervous and ‘crucially’ her BMI level was affected. The judge noted that the hospital only noticed the move of the woman after it had occurred. The judge was very critical of the hospital for allowing this to happen and deemed it a breach of the orders that had been made for the treatment and care of the woman. The judge accepted an undertaking by the CEO of the Mater Hospital ensuring that no breach of a court order will ever occur again in relation to someone who falls under the inherent jurisdiction of the High Court.

Former presidential candidate, Peter Casey, issued defamatory proceedings for the untrue and defamatory postings on Facebook. The defamatory postings were made in April 2023 to 2,000 followers of the person who put up the post. Casey ran in the local elections. He said in his election literature that he had been an activist for years and stood up against ‘draconian lockdowns 4G and 5G, austerity and undocumented and uncontrolled immigration’. When the Ukraine war broke out, Casey decided to convert a bed and breakfast he owned in Buncrana, into accommodation for women and children fleeing the war in Ukraine. The defamatory post claimed that workers at Casey’s building were ‘moving unvetted people around like cattle and then warehousing them in office cubicles for profit is akin to human trafficking and inhumane.’ After a fire occurred on the property, the defendant posted a picture of damage to the property complaining that the matter had not been reported in the mainstream media. . Mr. Justice David Nolan considered the statements made by the defendant and ruled that they were untrue and defamatory stating that they were ‘very stressful, hurtful and upsetting’ to Mr. Casey and his family. Judge Nolan determined that the words posted were untrue and, by their natural and ordinary meaning, were defamatory to Mr. Casey’s reputation. He consequently awarded €120,000 in general damages and €20,000 in aggravated damages. The judge noted that the defamatory posts remained online for nine months after the court ordered their removal in November last year. He considered this as a breach of the court order and contempt. Peter Casey v Kim McMenamin High Court (Mr. Justice David Nolan) 13 December 2024 [2024] IEHC 705 

The Employment Permits Act, of 2024 is now law and basically it is an extension of the existing legislation with some additions. The Act applies to non-EEA nationals who want to accept eligible employment and residence in Ireland. It introduces Seasonal Employment Permit (known as SEP), this is designed to support sectors such as horticulture and agriculture. It will allow permit holders to work up to 7 months per year in seasonally recurrent employment. It will be formally launched in early 2025. Employers who wish to avail of this scheme must apply to become registered. Removed from the Act is the requirement to advertise the job vacancy in print media which is replaced by advertising online. However, job vacancies will still need to be published on the Jobs Ireland and EURES websites operated by the Department of Social Protection. Change of Employer Position Permit holders for General Employment Permit (GEP) and Critical Skills Employment Permit (CSEP) are allowed to change their permit employer. Once 9 months have passed with their current employer, they can change employers. GEP holders can apply to change employer within the type of employment under which their permit was granted, while CSEP holders can change to an employer across a broader category of employments. The current permit must be valid for at least two months following this request. Permit holders can receive a promotion without having to seek a new permit. Dependants other than spouses and partners of CSEP holders and Researchers who are in Ireland pursuant to EU Council Directive 2005/71/EC are now eligible to apply for Dependant Employment Permits. Subcontractors Position A change in the system is that subcontractors will now have access to the employment permit system.  The new Act should make the employment of qualifying non-nationals more streamlined.

The Safety, Health, and Welfare at Work Act, 2005 is the legislation that employers must comply with to safeguard their workers in the workplace. The Act is very explicit in setting out the duties of the employer and these are set out in section 8 as follows: (a) managing and conducting work activities in such a way as to ensure, so far as is reasonably practicable, the safety, health, and welfare at work of his or her employees; (b) managing and conducting work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health, or welfare at work of his or her employees at risk; (c) as regards the place of work concerned, ensuring, so far as is reasonably practicable— (i) the design, provision, and maintenance of it in a condition that is safe and without risk to health, (ii) the design, provision, and maintenance of safe means of access to and egress from it, and (iii) the design, provision and maintenance of plant and machinery or any other articles that are safe and without risk to health; (d) ensuring, so far as it is reasonably practicable, the safety and the prevention of risk to health at work of his or her employees relating to the use of any article or substance or the exposure to noise, vibration or ionising or other radiations or any other physical agent; (e) providing systems of work that are planned, organised, performed, maintained, and revised as appropriate so as to be, so far as is reasonably practicable, safe and without risk to health; (f) providing and maintaining facilities and arrangements for the welfare of his or her employees at work; (g) providing the information, instruction, training, and supervision necessary to ensure, so far as is reasonably practicable, the safety, health, and welfare at work of his or her employees; (h) determining and implementing the safety, health and welfare measures necessary for the protection of the safety, health and welfare of his or her employees when identifying hazards and carrying out a risk assessment under section 19 or when preparing a safety statement under section 20 and ensuring that the measures take account of changing circumstances and the general principles of prevention specified in Schedule 3 ; (i) having regard to the general principles of prevention in Schedule 3, where risks cannot be eliminated or adequately controlled or in such circumstances as may be prescribed, providing and maintaining such suitable protective clothing and equipment as is necessary to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees; (j) preparing and revising, as appropriate, adequate plans and procedures to be followed and measures to be taken in the case of an emergency or serious and imminent danger; (k) reporting accidents and dangerous occurrences, as may be prescribed, to the Authority or to a person prescribed under section 33 , as appropriate, and (l) obtaining, where necessary, the services of a competent person (whether under a contract of employment or otherwise) for the purpose of ensuring, so far as is reasonably practicable, the safety, health, and welfare at work of his or her employees. This is a mighty list of responsibilities! Personal injury claims can be made by staff as well as customers or visitors to the workplace. It is for this reason that employers must ensure that the places their staff work in or visitors come need to comply with the legislation. Insurance Insurance premiums will rise because of a personal injury claim so this alone should be an incentive for businesses to be compliant. If the business is compliant with the Health and Safety legislation, then it is a shield against personal injury claims. We read in the media the increasing costs of insurance and where some businesses have had to close because of the rising cost of cover. The best defence to such legal actions is compliance with the legal obligations of employers in workplace health and safety. Risk Assessment Identifying potential hazards in the workplace is key to ensuring against claims. Employers are required to implement suitable protective and preventive measures to control risks. Be sure to engage a qualified risk assessor to carry out the work of risk assessment. Governing Body The Health Safety Authority (HSA) is responsible for regulating and overseeing workplace safety and health, which includes providing guidance and information to employers and employees, conducting inspections and investigations, and taking enforcement actions when necessary to ensure compliance with the legislation. A non-compliant employer can face serious consequences, including enforcement notices, fines, and potentially imprisonment in the most serious cases. The HSA can issue improvement or prohibition notices requiring immediate action to rectify non-compliance. If in doubt on your obligations as an employer, contact your solicitor for advice.

It falls to company directors to ensure the proper running of a company. Thus, it follows that improper actions by directors can result in sanctions against directors themselves. There aren’t many cases that come before the High Court on directors’ liability, but recent caselaw illustrates how serious the courts view improper conduct by directors. Improper conduct can take many forms: disrespecting the interests of shareholders, disrespecting minority shareholders rights, conflicts of interests among board members where decisions could impact negatively on the company, not obeying a court order and more. The Companies Act, 2014 – Exposure of Directors The Act sets out the duties and obligations of directors. Failure to follow these can result in exposing directors to categories of penalties ranging from minor to major. There are four categories listed in the Act for sanctioning directors. Category 1 offences can result in imprisonment for up to 10 years and/or a fine of up to €500,000 on conviction on indictment or on summary conviction imprisonment for not more than 12 months and/or a fine not exceeding €5,000. Category 2 offences can result in imprisonment of up to 5 years and/or a fine of up to €50,000 on conviction on indictment or on summary conviction imprisonment for up to 12 months and/or a fine not exceeding €5,000. Category 3 offences are summary offences only and can result in imprisonment of up to 6 months and/or a fine not exceeding €5,000. Category 4 offences are summary offences only and can result in a fine not exceeding €5,000. The courts take breaches by company directors very seriously and in some instances, convictions can result in an order of Attachment. This can be against an individual for contempt in refusing to carry out a court order and if they continue to be in contempt, they could be committed to prison. Attachment, Sequestration of Assets Attachment is an order to have a named individual arrested and brought before the court to answer the contempt, which has been alleged. Sequestration of Assets is where a sequestrator (court official) is appointed to take possession of all property and assets in the possession of a person judged to be in contempt of court. Conclusion The consequences are severe and rightly so for directors who abuse the law and put the company at risk. The company secretary has greater responsibilities under the 2014 Act and if he or she is in any doubt on how the company is being operated, early contact with the company solicitor is advised.

A decision by the Supreme Court last year (Revenue Commissioners v Karshan (Midlands) Ltd) was put to the test in a case before the Workplace Relations Commission (WRC) where a musician who was dismissed by the management company of performer Michael English, sought compensation for breaches of employment law. The applicant, Matt McGranaghan was a musician who played the fiddle, for many years, in Michael English’s band. The principles of the Supreme Court's ruling last year were on distinguishing employees from contractors in the entertainment industry - "the original form of the gig economy", as it was described in court for the band's management. McGranaghan had argued with the respondent that he had employment rights having continuously worked for Michael English for six years. The respondent argued that McGranaghan was not an employee, but an independent contractor and self-employed. At a meeting with the band’s musicians, Michael English made it clear that members of the band being employees was a ‘non-runner.’ He is alleged to have said at the meeting ‘If that doesn't suit any of ye I'd appreciate it if you'd let me know now". Following that meeting, Mr McGranaghan was told by email that his services would no longer be required at the end of the following month and received no notice pay upon the termination of the relationship. Mr McGranaghan cited to the WRC hearing extracts from secretly recorded comments made by Mr. English which was objected to by Mr. English’s barrister. It was submitted by Mr. English’s barrister that he ‘vigorously and strenuously" denied that Mr McGranaghan was ever an employee and maintained he had always been a contractor - with no recourse to the Unfair Dismissals Act. Mr McGranaghan told the tribunal that 98.7% of his annual earnings came from working with the respondent’s band. The complainant’s representative, Martin McMahon, said that his client made €50,000 annually for playing around 220 gigs a year – adding that treating Mr McGranaghan as self-employed created a "substantial" 15% saving on employer PRSI contributions compared with direct employment. In her decision, WRC adjudicator Caroline Reidy noted that the Supreme Court had rejected the "mutuality of obligation" test in its decision on Revenue Commissioners v Karshan (Midlands) Ltd last October and had set out a new test which considered the exchange of money for work, the level of control exercised by the alleged employer, and whether the purported employee was providing personal services or had the right to engage a substitute. Ms Reidy noted that the relationship between Mr McGranaghan and the management company involved the weekly exchange of money for work as well as the provision of his personal services as the band’s "resident fiddle player" - with substitutes only an "exception". There was also sufficient control exercised by the employer to potentially qualify the relationship as employment, she stated, as Mr McGranaghan had "no flexibility" on when he played with the band, wore a uniform, was told what to play, and took direction from the company.

Before committing to work on your home, consult your solicitor on building regulations in your area. Failure to do so could result in penalties and in some cases the removal of the finished work. Planning Permission In some instances, planning permission will not be required, and your solicitor will advise you on when such exemptions arise. However, if planning permission is required, it is important that you comply with all necessary requirements otherwise the permission may well be void. Examples of development that require planning permission are: 1. Extensions that increase the overall size of your home by more than 400 square feet. 2. Loft conversions that alter the structure of the roof. 3. Any changes that affect the exterior appearance of your dwelling. Your solicitor will advise you on this. Procedure in Applying for Planning Permission Ideally engage an architect to draw up detailed plans that will be submitted to the local authority on your behalf. The plans must provide all details of the work to be undertaken. The length of time for decisions can vary with local authorities but your architect should be able to give you an estimate of the time. Building Regulations The architect draws up the plans in accordance with your instructions, but you will need an engineer to ensure the proposed renovation complies with (a) structural stability (b) Fire safety (c) Energy efficiency and (d) accessibility. Failure on any of these will result in possible fines or demolition of the work. Short cuts are to be avoided. Inspections of Work in Progress While the work is underway it will be subject to inspections by the building control officers of the local authority. Their function is to ensure the work is being carried out in compliance with the planning permission granted. Assuming that the inspectors find no issues on inspection, you will receive a certificate of completion. This is important and it is important to keep in a safe place as if selling the property later, it will be required.  The above is for straight forward home renovations, anything greater will require the involvement of your solicitor at an exploratory stage to discuss a planning application and likely agreement with your neighbours as to access, debis removal and possible noise issues.

Differences between management and employees or among employees themselves can lead to issues spiralling out of control and ending up in avoidable expensive litigation. In any working environment, there will be people who may not get on with each other. How management deals with such issues could, if handled badly, result in a negative atmosphere towards management. A complaint improperly handled by management can affect more employees than just the person involved in the complaint itself. Grievance Procedure Companies should seek their solicitor’s advice in the drafting and updating of their Grievance Procedure. Time and money spent on this can save the company a great deal more expense otherwise. Also, a complaint from an employee, if not dealt with fairly, can result in litigation creating a negative working environment and an ‘us’ and ‘them’ attitude between management and employees. This is time consuming, a work distraction and potentially harmful to the business. If the internal disciplinary procedure fails to resolve the complaint, the employer will likely be faced with a complaint made against the company under the Workplace Relations Commission (WRC). Following correct internal procedures could avoid this development. Compared to litigation in the courts the WRC is quicker with its decisions and is much less expensive but proper internal procedures can avoid this. So, consult your solicitor to ensure you have fair and robust procedures in your workplace to resolving disputes and complaints among staff.

A case came before the Circuit Court to determine whether a family home could be transferred into the joint names of spouses where the transferor lacked capacity within the provisions of the Assisted Decision-Making Act, 2015. A previous Circuit Court order had been made ruling that ‘the relevant person’ (RP), lacked capacity. Under the Act, RP’s children CD and EW (known as DMRs) were appointed ‘decision-makers representatives’ under the 2015 Act. Subsequently, the DMRs applied to the court to approve the transfer of RP’s family home into the joint names of RP and his wife. The DMRs submitted to the court: 1. If the property was transferred, it would pass on the death of RP to his spouse automatically without the requirement to take out a grant of probate, and that ‘gifts’ of property are permitted pursuant to section 2 of the Act. 2. The RP’s past will, and preference was to transfer the property into joint names, but he was not able to effect same before the declaration was made that he lacked capacity. Their evidence was not given under oath in court. 3. It was also submitted that the court was obliged to give effect to the guiding principles in section 8 of the Act. The presiding judge took a different view. He considered that a DMR’s powers were limited in scope and duration as necessary having regard to the interests of the RP, in accordance with section 39 of the Act. He stated: ‘Exceptional circumstances would be required in order for the court to regard it as appropriate to gift RP’s assets rather than ensuring those assets are used for RP’s benefit and for the benefit of those that RP has an obligation to maintain and to provide for”. The judge further said: ‘While the gifting may be to a person who is indicated as a beneficiary in a will, the vista of that approach is not sustainable. A will is a declaratory document and has no force or effect until a person dies. In addition, a schedule of assets and liabilities is furnished before a grant of probate is extracted and creditors may or may not be affected by a lifetime transfer.” The judge observed that the DMRs provided no evidence to show that RP had intended to create a deed of transfer in to joint names. The judge expressed his view in that: “The court upholds the right of a person who lacks capacity to still retain control as far as possible over their property and affairs. It is important to note the appointment of a DMR, authorises that person to act as an agent for the RP with oversight of the Decision Support Service… as to the management of the property.” The judge considered that a more appropriate interpretation of the Act was that the court was mandated to give “very serious consideration” to the transfer of RP’s property if it can be clearly established that it is the RP’s intention and preference. In the judge’s view, there was no urgent need demonstrated to order the transfer of the family home, and the reason furnished was for convenience rather than demonstrated hardship. On considering all the facts the judge refused the application. In the matter of the Assisted Decision-Making (Capacity) Act 2015 and in the matter of AB Circuit Court (Judge John O’Connor) [2024] IECC 16.