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2012 Archives

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The free legal aid scheme in Ireland for criminal cases provides for legal representation for accused persons who cannot afford legal representation.

free-legal-aid

There are a number of conditions to be met before you will be able to access legal aid from the scheme.

Essentially two conditions must be present:

1. The accused person does not have the means to pay for a criminal defence lawyer themselves and
2. It is essential in the interests of justice, because of the seriousness of the charge or circumstances of the alleged crime, that the accused person be legally represented.

This will often see the Judge enquiring from the prosecuting Garda whether the accused is “at risk” of a custodial sentence. If not then the Judge may refuse an application for legal aid.

However a recent Supreme Court decision has cast some doubt on a rigid adherence to this criterion..

This Supreme Court decision of July, 2011, in the case of David Joyce (appellant) and Judge Patrick Brady and the Director of Public Prosecutions (respondents), is an interesting one as it appears to consider that the well accepted criterion of considering whether the accused person is “at risk” of a custodial sentence falls short of the constitutional guarantee in Article 38 of a “trial in due course of law” and the accused’s right to fair procedures guaranteed by Article 40.3.

Facts of case

The appellant in this case was charged with theft of goods to the value of €284.45 (section 4 Criminal Justice (Theft and Fraud Offences) Act2001 from a Spar shop in Portmarnock. This offence was to be prosecuted summarily by the DPP in the District Court according to the Garda Sergeant when the case first came before Swords District Court on 4th October, 2005.

However the Judge had not yet determined that the offence was a minor offence and Mr. Joyce was not advised of his right to be tried by jury, his right of election, nor had he objected to a summary trial.

Mr. Joyce’s solicitor applied for a legal aid certificate but Judge Brady adjourned his decision in respect of this application pending receipt of a statement of means. Mr.Joyce’s means were not such as to be able to afford legal representation and had no previous convictions.

free-legal-aid1

On the next occasion before the District Court no statement of means was furnished and the Judge did not decide on the application for a legal aid certificate. However Mr. Joyce was given a copy of the CCTV footage and the witness statement which would indicate that this case was being treated as one of the more serious or complex cases referred to in State (Healy) v Donoghue[1976] I.R. case. (In State (Healy) v Donoghue [1976] I.R. O’Higgins C.J. stated that “many very minor cases may not require that statements be furnished”.

The case came before the District Court next in November, 2005 and Mr. Joyce’s solicitor and counsel, acting pro bono still, raised the problem that they had in relation to viewing the CCTV footage on a standard video player and the issue of legal aid. At this point the Judge asked the Court presenter whether Mr. Joyce was “at risk” with the Judge clarifying for Mr. Joyce that what he meant by this question was whether he was at risk of a custodial sentence.

The Garda replied in the negative.

The Judge then considered the application for legal aid over lunch and refused the application having heard the facts of the case. Judge Brady said he had considered State (Healy) v Donoghue [1976] and decided that this case was a minor one and there was no risk of a custodial sentence.

However he did say that if there was an intervening offence which changed the risk of a custodial sentence then a fresh application for legal aid should be brought on behalf of Mr. Joyce.

Judicial review proceedings were then commenced seeking a certiorari order quashing the District Court Judge’s decision. The High Court noted that Mr. Joyce’s right to election for a trial by jury was not dealt with in the District Court.

free-legal-aid-ireland

The High Court then remitted the case back to the District Court to renew the application for legal aid and to allow his legal team to argue that the omission of Mr. Joyce’s right to election was an “exceptional circumstance” justifying the grant of legal aid.

This decision of the High Court was then appealed to the Supreme Court which decided that applying the rule of thumb as to whether the applicant was “at risk” of a custodial sentence in making it’s decision was too restrictive and in error.

The Supreme Court noted that even though the case was considered sufficiently important to require disclosure it was not considered sufficiently important to require legal aid and further noted that Garda Curtin could only observe that “while not trivial the charge facing the Applicant is by no means at the more serious end of the scale”. (Emphasis added)

The Supreme Court went on to consider what would have been required to ensure a professional defence of the case and found that:
1. you would need to know that even though the offence was indictable that it could be tried in the District Court but only with the agreement of the accused;
2. you would need to form a professional view as to the best venue from the accused’s point of view;
3. you would need to know that you could apply for disclosure
4. you would need to be aware of the case law in relation to cctv footage as evidence
5. and many other issues surrounding the facts of the case.

Critically the Supreme Court held that

“it is flawed logic to seek to conclude that because a person who was at risk of imprisonment must receive legal aid, it necessarily follows that absent a risk of imprisonment (the assessment of which is always somewhat speculative) that legal aid should not be provided. More importantly such a conclusion is in my view inconsistent with the reasoning of the Court in State (Healy) v. Donoghue.”

It further held that

“There is something fundamentally incongruous in the contention that a trial for theft would be unfair if the accused was convicted (perhaps having pleaded guilty) and sent to jail for even a day, but that a trial of the selfsame offence including the same facts and issue of law would become fair if the accused were only fined or required to do community service if convicted, even though such conviction would brand him a thief.”

The Supreme Court went on to consider in greater detail the seminal case in this regard, State (Healy) v Donoghue[1976] and found that

“It is quite clear, however, that the Court did not find that legal aid was only required when a person was imprisoned on conviction, or even when the more nebulous concept of facing a risk of imprisonment was found to be satisfied.”

It also found that

“It is clear therefore, that the Act of 1962, does not merely confer a statutory right to legal aid, it is the “practical implementation of a constitutional guarantee” and must be interpreted accordingly.”

Finally, in it’s decision in the case at hand, David Joyce and Judge Patrick Brady and the Director of Public Prosecutions, it critically held that

“The factors in this case which appear to have led to the conclusion that the accused was not “at risk” and therefore told against the application for legal aid – the absence of previous convictions and the accused’s lack of familiarity with a courtroom – were factors which in my view should have led to the opposite conclusion.

The impact on a young man of a first conviction for a crime of dishonesty is considerable. His ability to defend himself effectively was doubtful to put it at its lowest. Having regard to what was involved, I consider that the facts of this case satisfied the statutory test when taken alone. This charge was of sufficient gravity to merit the grant of legal aid.

However, when the statutory language is approached, as it must be, in light of the requirements of the Constitution, of which the words of the statute are a somewhat imperfect reflection, then the conclusion is to my mind inescapable. While fully appreciating the motives of the learned District Judge, and recognising the demands imposed by the requirement to deal with a considerable volume of cases under significant pressure of time, I have nevertheless come to the conclusion that the decision to refuse legal aid in this case was wrong and therefore unlawful, and must be quashed. Accordingly, I would allow the appeal.”

Should you be charged with a criminal offence you should contact a solicitor. We at solicitors Dublin are on the legal aid panel for criminal matters in Dublin.

By Terry Gorry Google+
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Well meaning friends can advise you that you do not need a solicitor when charged with particular offences. However before you decide that you don’t need legal representation you should take a look at the video below which looks at situations where you may be successful in an application for the Probation Act rather than having a criminal conviction imposed on you.

Being convicted can carry consequences far beyond a small fine on the day; for example if you ever decide that you would like to work abroad your conviction may well go against you.

By Terry Gorry Google+
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Solicitors Dublin assist many US attorneys and litigants who need to have service of legal documents effected on defendants in Ireland.

The best and safest way to be sure of good service is to have an Irish solicitor serve the defendant in person.

process-servers-dublin

Whilst it is the case that the Hague Convention provides for service by a number of internationally agreed methods such as

  • international mail
  • sending the request in the appropriate Hague Convention Request for Service form directly to the Central Authority in Ireland (the Central Office of the High Court)
  • instructing an Irish solicitor to handle service in person

only the last option above offers sufficient protection in our experience.

As there is no bilateral agreement between the US and Ireland in respect of recognition in Ireland of judgments obtained in the US our experience has been that the Courts in both the US and Ireland may reject service if challenged by the defendant.

process-servers-dublin1

The option of sending your judicial papers together with the Hague Convention Request for Service form is, in theory, a better approach the reality of the situation on the ground is that there are only a limited number of people in Central Office and suitable people around the country to deal with your request.

This poses two problems:

  1. service, if effected, may be slow due to the growing workload
  2. if the defendant proves elusive the papers may be returned unserved.

The best and safest approach to take is to instruct a solicitor in Dublin or Ireland to carry out the task for you. The advantages of this method of service are

  • local knowledge
  • speed
  • familiarity with the procedure and the requirements of Central Office.

How to Obtain a Certificate of Service Under the Hague Convention Procedure

Solicitors Dublin can offer a fixed fee service so you know what your costs will be at the outset and you can be sure of a professional service.

You will need to send two copies of

  1. the Hague Convention Request for Service Form with the appropriate request for service wording and
  2. the legal papers to be served.

We then check over the papers and see that they are in order and let you know if anything needs to be amended. We will bring the papers and request form to the Central Office of the High Court who will then check that the papers are in order.

Assuming that they are in order either the Master or Deputy Master of the High Court that service is to be effected by the principal solicitor of Solicitors Dublin or their agent for that purpose.

We will then appoint an agent to serve the defendant in person or effect service ourselves. Once service is effected we prepare an Affidavit of Service and have this sworn and returned to Central Office together with one copy of the legal papers, the Return Copy.

The Master or Deputy Master of the High Court will then assess that service was effected in the terms stipulated and if so will then certify that service has been carried out in conformance with the Hague Convention in respect of service of documents in Civil Matters.

Solicitors Dublin then return the Certificate of Service by Fedex or DHL to the client in the United States and is it this certificate that will be your proof of service when you go back into Federal Court in the U.S.

Should you need any assistance with any of this procedure or if you have any queries or need service carried out in Ireland do not hesitate to use the contact form on this site or call and we will revert within 12 hours guaranteed.

By Terry Gorry Google+
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Seeking guardianship by the father of a child in a non-marital situation is a common application before the District Court in Dolphin House, Dublin 2.

guardianship-family-law

The reason is simple: under the existing law the father of a child in a non-marital relationship is not automatically a guardian of the child, although the mother is.

The father of the child is only automatically a guardian where

  1. He was married to the mother at the time of the child’s birth or
  2. If the parties marry after the birth of the child.

What does guardianship mean?

Guardianship is concerned with the overall care of the child in a global sense and will involve having a say as to

  • Permission of the child to marry
  • Passport forms
  • The general upbringing of the child
  • The child’s medical care
  • The child’s education
  • Acting on behalf of the child in legal proceedings
  • Custody of the child
  • Any property of the child until the child reaches the age of 18.

The natural father, thanks to the Status of Children Act 1987 (section 12), can now apply to the District Court under section 6A of the Guardianship of Infants act 1964 to be appointed a guardian of the child by the Court.

guardianship-family-law1

The first and paramount consideration of the Court in considering such an application will be the welfare of the child (sect. 3 Guardianship of Infants Act 1964).

Guardianship by consent

However where the mother of the child consents there is a procedure under Section 2(4) of the Guardianship of Infants act 1964 where both parties can swear a statutory declaration agreeing for the father to become a joint guardian.

This will not involve a court appearance and can be carried out by the parties themselves by filling out the appropriate form under the Act and can be done regardless of the living arrangements of the parties-that is, they do not have to be living together. (If the father is not registered on the birth certificate then it is likely that the declaration will be rejected by the Registrar pending his registration as father on the register maintained under the Civil Registration Act 2004.

However despite the relative ease with which you can carry out this declaration procedure you should always seek legal advice before signing one.

If you have any questions arising from the above do not hesitate to contact us. You might also be interested in family law solicitors Dublin.

By Terry Gorry Google+

New rules, the District Court (Enforcement of Court Orders) Rules 2010, came into effect in April, 2010 and deal with the enforcement of Court orders and Judgments.

district-court-debt-collection

Assuming you have obtained a judgment against a debtor in the District Court or you have had a judgment or Court order given against you for a debt- what happens next?

How it the judgment enforced?

District Court (Enforcement of Court Orders) Rules 2010

The solicitor for the creditor will issue a summons for the attendance of the debtor and if served by hand must be served at least 14 days before the Court date; if served by registered post it must be served 21 days before the hearing date.

The summons will have attached to it a Statement of Means which must be filled out by the debtor and lodged in the District Court office at least 1 week before hearing.

The solicitor for the creditor will need to lodge

1. The original Decree

2. An affidavit of residency confirming that the debtor lives where the summons has been served

3. A certificate of amount due.

It is up to the Judge then to decide how much the debtor should be paying based on the statement of means and will make an order called an Instalment Order requiring the debtor to pay a fixed amount monthly or weekly.

This instalment order must then be served on the debtor and will remain in force for 12 years from the date that Judgment was granted.

If the instalment order is not complied with the creditor can issue a Summons for Failure to Comply with An Instalment order.

This next appearance in Court by the Debtor may lead the Judge to granting a Committal order committing the debtor to prison.

However since the Caroline McCann/Monaghan Credit Union case it is much more difficult to commit a debtor to prison and the Court must be satisfied that the Debtor will not pay as opposed to being unable to pay.

dublin-district-court

Judgment mortgage

You can, as the creditor, also register a Judgment mortgage on the debtor’s property, if he is the registered owner. The power of sale of the property though on foot of a judgment mortgage can only be exercised through the courts.

Should you need any assistance arising from this article and need a solicitor feel free to contact Solicitors Dublin.

Here is a link to the legislation: District Court (Enforcement of Court Orders) Rules, 2010

By Terry Gorry Google+

The Status of Children Act, 1987 makes provision for declarations of parentage.

This will involve an application to the Circuit Court that a person is his/her mother or father, even where the parent is dead.

declarations-of-parentage

The Status of Children Act, 1987 also provides for blood tests including DNA testing, where parentage is in dispute, to be carried out. The Court can make this order of it’s own volition or a party to the legal proceedings can apply to the Court for such an order. These tests are not funded by the public health system nor the Courts so the cost of the tests will have to be paid by one or both parties or whoever the Court directs to bear the cost.

Presumptions of paternity

The Status of Children Act, 1987 provides a presumption of paternity where a couple is married and presumes that the husband is the father of the child. Like all legal presumptions, this can be rebutted by evidence on the balance of probabilities.

status of children act

Unmarried parents

In an unmarried parents situation there is no presumption in law as to the father of the child, unless the man has been named on the birth certificate as the father.

Fathers who acknowledge paternity can have their names added to the birth certificate. If a father is not named on the birth certificate then he may have to prove paternity to the Court if he wishes to apply for access, guardianship or custody.

The Status of Children Act, 1987 amends the Births and Deaths Registration (Ireland) Act, 1880 to allow the insertion of the natural father’s name on the child’s birth certificate

  • If both parents agree or
  • If there is a Court order naming him as the father.

However where a child is born to a mother who is married, and the husband is not the father, the required statutory declaration will be different as it will require a statement from the husband that he is not the father or a statement from the mother that she had been living apart from the husband for ten months prior to the birth or a Court order naming the father.

If you are looking for solicitors in Dublin please use the contact form on this site.

By Terry Gorry Google+

You may need the services of a summons server in Dublin if you are seeking to have a UK judgment recognised and enforced in Ireland.

summons-server-dublin

If you have secured a judgment in the UK in respect of a debt but find that your debtor is now living in Ireland, how do you enforce your debt?

Article 33 of the Brussels I regulation stipulates that any judgment obtained in a member state will be recognised in other member states without any special procedure required.

 

But how do you enforce your UK judgment in Ireland?

 

Order 42A of the Rules of the Superior Courts in Ireland provides the procedure which involves making an application to the Master of the High Court in the first instance.

 

 

This is an ex parte application (only one party required, there is no need to serve any papers on the debtor at this stage). Your application needs to be supported by an affidavit which shows

  1. Your UK judgment,
  2. If the judgment in the UK was obtained by default you will need to demonstrate that the debtor was properly served in the UK with the legal proceedings in the first place,
  3. Documents that show that the judgment obtained in the UK is enforceable and has been served,
  4. An Annex V certificate which will be provided by Court officials in the UK.

summons-servers-dublin

There are a number of other averments or statements which will need to be in your affidavit including an address in Ireland for the service of documents on the party making the application and the grounds on which the right to enforce the judgment is vested in the party making the application.

 

Declaration of enforceability

Provided your papers are in order and your application is successful then the Master of the High Court will declare your UK judgement enforceable immediately.

 

Once this declaration of enforceability is granted it affords the same power to the UK judgment as if it was a judgment made in the High Court in Ireland.

 

This declaration of enforceability then needs to be served on the debtor along with the Judgment and a Notice of Enforcement.

 

At this stage the debtor has a period of time within which to appeal the Master’s order which can range from 1 month to 2 months.

 

Only after this period has expired will the Execution Order in respect of your Judgment issue.

Circumstances where UK Judgment not recognised

A UK or EU judgment will not be recognised in Ireland in only a narrow range of circumstances with the most common situation being where the original proceedings were not correctly served on the debtor.

 

The Master of the High Court is generally anxious to ensure that

  1. The original proceedings/writ were served on the creditor
  2. Notice of the judgment was served on the creditor.

 

Should you need any assistance in Ireland with having your UK judgment recognised and enforced or if you need to serve proceedings or other judicial papers on persons in Ireland please use the Contact Us form for a quotation as we carry out quite a lot of this type of work for UK solicitors. (Check out Dublin solicitors also)

By Terry Gorry Google+

Many people have correctly criticized the level of solicitors fees in Dublin..stories of exorbitant legal bills and fees fill the airwaves from time to time with animated discussions on RTE radio and TV.

The new legal services bill introduced by Minister for Justice Alan Shatter seeks to address some of these criticisms.

The video below however will demonstrate the dangers of not instructing a solicitor, even for what appears to be a minor matter, though and will show you why instructing a solicitor can have huge long term benefits for you and your career, travel prospects and so on.

By Terry Gorry Google+

Domain names, which are intellectual property just like trade marks and other forms of intellectual property, have seen an increase in disputes in the last few years.

domain-names-law

 

Terms like ccTLD (country code top level domain such as .ie, .co.uk and .fr) and gTLD(generic top level domain such as .com, .net and .org) can be confusing to the small business owner who simply wants to get his business up on the internet and market his/her business to the world via the internet.

Hopefully what follows will help clear up some of the confusion as to what to watch out for in the whole area of domain name registration, domain name disputes and the value of doing a domain name search prior to registration.

 

However domain name disputes are becoming an increasing problem for business with the proliferation of website, eCommerce and new businesses going online and trading on the internet.

 

And infringements occur regularly in the shape of trade mark disputes, cybersquatting and related issues.domain-name-law

 

It is crucial for any business to have a smart commercial strategy regarding their trade marks and domain names.

 

Domain names can usually be registered quickly and inexpensively. Top Level Domain(TLD) is the suffix such as ie or uk or fr-it denotes the country.

 

 

Within TLDs there are 2 sub-categories

 

1. Generic TLDs (gTLD) such as .com,.net,.org,.biz. These domain names do not have to be distinctive and do not indicate geographic origin.

 

2. Country Code TLDs (ccTLD) which are administered by the domain registry of the relevant country; in Ireland this is IE Domain Registry ltd (www.iedr.ie).

 

In Ireland you must display a real and substantive connection with Ireland when applying for a domain name before iedr will approve your application. You may also need to show a connection with the business that you are referring to in your domain name application.(Check out IEDR.ie)

 

Domain name disputes

 

Domain name disputes have been resolved generally in one of 2 ways-either in court or by reference to the alternative dispute resolution procedure provided by ICANN.

 

This body has adopted the UDRP (Uniform Domain Name Dispute Resolution Policy) which apples to generic TLD name disputes.

 

Some country code administrators have incorporated this procedure into their registration agreements.

 

This UDRP procedure has been very successful and has resolved many domain name disputes; however it does not provide for damages and so a company that needs immediate injunctive relief and damages will be advised to head for court rather than the UDRP procedure.

 

Generally the relief provided is simply to have the domain name transferred to the plaintiff.

 

To win relief at the UDRP you will need to show 3 things

 

1. the complainant must show that the name is confusingly similar to the name in which the complainant has rights

2. the existing holder has no legitimate interest or rights in the domain name

3. the complainant must show bad faith on the part of the holder of the domain name.

 

The holder of the domain name can reject the complainant’s case if he could show bona fide use of the name, non commercial use with no intention to profit, evidence that the respondent is known by the domain name.

 

UDRP also recognise the phenomenon of ‘Reverse Domain Name Hijacking’ which is the occasion when the plaintiff uses the policy in bad faith in an attempt to deprive a registered holder of a domain name of that name.

 

In ccTLD disputes the domain name registry require further proofs before they cancel or transfer a domain name.

 

They would need to see some aspect of passing off or trade mark infringement also.

domain-name-disputes

These disputes can be litigated before the appropriate courts as occurred in Jan. 2009 when Sean Dunne, Property Developer went to court in a dispute to obtain D4Hotels.com from John Brennan who had registered the domain name in his own name whilst running D4 hotels group in Ballsbridge.

 

The IEDR introduced a dispute resolution procedure in 2003 in respect of .ie disputes which you can learn more about on their website.

Conclusion

It is clearly impossible to register all domain names and trade marks which they may feel they need to protect their intellectual property.

 

Sometimes it is more cost effective to purchase the name from the ‘offender’ rather than go to court or UDRP.

 

It is important to recognise the difference between trade marks and domain names and it is prudent for a company to register each of their domain names as a trade mark.

 

Because otherwise their domain name could be registered as a trade mark by a 3rd party.

By Terry Gorry Google+

Family law is different from other areas of law.

Most areas of law are concerned with what happened in the past and Courts are left with the task of making judgments in relation to what has already occurred.

family-law-solicitor-dublin

However family law places an onerous obligation on family law Judges and Courts and family law solicitors to make decisions based on current and future behaviour of the parties and the responsibilities and needs of the parties concerned including children of the parties. Family law solicitors need therefore to advise their clients and be mindful of not just the legal remedies open to their client but also to non legal solutions such as

  • mediation
  • negotiated agreement between the parties through their solicitors and
  • reconciliation.

In fact family law solicitors have a legal duty to advise their clients of non legal solutions to their difficulties in the first instance rather than initiating legal proceedings immediately.

Negotiated agreements, such as separation agreements, may be appropriate in many situations and will generally be a cheaper alternative to issuing legal proceedings and attempting to resolve difficulties through the Courts.

family-law-solicitors-dublin

Agreements between the parties can also be drawn up in respect of

  • maintenance
  • access
  • custody
  • guardianship

and if agreement is reached the agreement can be ruled by the family law Court, that is to say, the Court will make a Court Order in terms of the agreement reached between the parties.

The Family Mediation service, which is a free service for separating couples, should also be used to attempt in the provision of free mediation services by trained counselors/mediators.

Family law client care

A good family law solicitor will ensure to

  • keep you informed throughout the process
  • speak to you in a language you understand with the minimum of legal jargon and an awareness that your family law problem may well be your first encounter with the legal system in Ireland
  • support you on the day that your case comes before family law Court
  • explain in easy to understand language what has occurred and the implications of whatever Court Order has been made.

Good family law solicitors recognise that family law problems can cause a huge degree of stress and upset for people and should be aware of this at all times.

It is important to recognise that good family law solicitors will be supportive and helpful to you on a personal level but they are also legal professionals who have a professional obligation to you as client and in their dealings with colleagues acting for the other party and will advise you as to what is possible and impossible in your particular case.

Children in family law cases

Children should be a prime consideration in family law cases and the best interests of the child(ren) should always be paramount in family law disputes.

As stated at the outset, family law is different because unlike, say litigation or criminal law or business law, it is not a “winner takes all attitude” that will provide the best outcome for all parties concerned. (If you need assistance with any of the issues raised in this article don’t hesitate to contact Solicitors Dublin through our Contact Us page)

By Terry Gorry Google+

In contentious business a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.
member-of-the-law-society