English

Employers: Get your free copy of "The 16 Common Employment Law Mistakes that Most Irish Employers Make" and my regular money saving employment law tips via email. Sign up below.

Instant access. We respect your privacy.

2012 Archives

Process serving in Ireland for litigants in non EU countries is provided for by the Hague Convention.

There are a number of procedures laid down but the safest and surest method to ensure effective service which will stand up to challenge is to instruct a solicitor in Ireland to act on your behalf.

process-serving-ireland

Whilst the cost of doing so may be off putting in the first instance it will, to your client, look like money very well spent if you avoid a challenge to your service when you go to your local Court seeking a Judgment or Court Order.

Service of process for non EU countries

The service of foreign process in Ireland for documents originating in non-EU countries must be carried out under the procedure laid down in the Hague Convention of 1965 which dealt with the service of judicial and extrajudicial documents in Civil or Criminal matters abroad.

Please note this Hague Convention only applies to signatories of the Hague convention and non EU countries; service between EU countries is covered by the Brussels I regulation, the Brussels convention or the Lugano convention.

So the procedure discussed here would apply if you were an American or Australian company or bank for example seeking to have documents served in Ireland on an Irish defendant.

The Hague convention rules which cover this area were given effect in the Rules of the Superior Courts in Ireland under statutory instrument 101/1994.

These rules deem the Master of the High Court to be the Central Authority in Ireland.

The procedure involves you as a judicial officer in, say, the United States filling out a form which is annexed to the Hague Convention which is called a Request form.

process-serving-dublin

You can access the request form here and learn more about the Hague Convention service section here.

(Do note that if the request is not a Hague convention request and is not in English then the request and documents will have to be translated into one of the two official languages of the Irish State-English or Irish-and two copies of all documents will have to be provided)

The Hague Convention  form is in fact in 3 parts-Request, Certificate and Summary.

If the request is a Hague Convention request from a Convention country then the Request form is left in with the Central Office of the High Court and if the Central Authority is satisfied that the Request is in conformance with the Hague Convention then the Central Authority generally directs service in the manner requested by the applicant unless this method is incompatible with the laws of Ireland or is not in compliance with the practice and procedure of the High Court.

If the Central Authority is not satisfied with the Request it can set out it’s objections to allow the applicant rectify the matter.

If there is no specific method of service requested by the applicant the Central Authority will direct personal service on the Defendant. If this is the case the Central Authority may direct service by the Chief Solicitor’s office.

Service is then carried out by delivery and leaving with the Defendant one copy of the documents to be served and any translation if appropriate.

Once service is then effected by the process server he/she returns to the Central Authority with one copy of the process and an Affidavit setting out how service was carried out.

This affidavit sets out how service was effected.

(The Central Authority may stipulated a time period within which service was to be effected)

If and when the Central Authority is satisfied with service it will issue a certificate to this effect which will be your proof of service under the procedure laid down in the Hague Convention-this Certificate is part 2 of the Request form which you can access above.

Process servers in Ireland

We provide process serving services for a growing number of international clients.

Our membership of the Law Society of Ireland, understanding of the laws applicable in Ireland and the Rules of the Superior Courts, ensures that our clients receive a professional service from start to finish.

Please use the Contact page to request a quotation or email Terry Gorry Solicitor directly at terry@businessandlegal.ie (Terry Gorry Solicitor)

Avoid This Common and Costly Mistake When Looking for a Process Server in Ireland

By Terry Gorry Google+

If you have a debt collection problem and you cannot get in monies owed to you Solicitors Dublin offers a comprehensive and very cost effective debt collection service.

debt-collection-solicitors

Regardless of whether your debt needs to be pursued in the District Court, the Circuit Court or the High Court the first step in any debt collection procedure is to send a demand letter to the debtor.

Debt demand letters

There are some essential elements in a demand letter in a debt collection procedure. These include

  • Who owes the debt and what kind of legal entity are they, for example sole trader, limited company, partnership and so on;
  • To whom is the debt owed;
  • How much is owed;
  • Is there interest accruing on foot of a contract;
  • Who are you;
  • For what is the debt owed;
  • Payment should be demanded within a specified time period;
  • What will happen should the debt not be paid;
  • And that the recipient should see a solicitor or legal professional.

debt-collection-dublin

District Court debt collection

The District Court has jurisdiction to deal with debts up to €6,348.69. If the debt is not paid on foot of the demand letter then the next step is to issue and serve a Civil Summons.

A District Court Civil Summons must include

  • The District Court Area
  • The District Court Number
  • Details of the parties
  • The amount you are claiming
  • The Plaintiff’s claim
  • That the debt fell due in the last 6 years
  • The goods/services provided
  • That there was a demand made and full particulars of the debt were furnished
  • That the debtor failed to pay
  • And the interest and costs which is being claimed.

Notice of Intention to Defend

If a Notice of Intention to Defend is filed then a hearing date for the case will be given by the District Court on the 1st occasion it comes before the Court.

If no Notice of Intention to Defend is filed you will be able to lodge the appropriate papers in the District Court office and obtain a Judgment against the person who owes the money.

Learn more about the Civil Summons procedure..

debt-collection-ireland

Circuit Court Debt collection

The Circuit Court deals with debts of €6,349 to €38,092.14 and involves the Civil Bill procedure.

High Court Debt collection

The High Court has unlimited jurisdiction to deal with debts and the procedure is the High Court Summary Summons procedure and may involve the Master of the High Court and the High Court itself.

Debt collection generally

The procedure used in trying to collect a debt, from issuing your demand letter in the first instance all the way through to enforcement proceedings,  is critically important as a mistake in any step of the procedure can set you back critically or failing to recover anything.

For this reason you may wish to instruct debt collection solicitors to handle the matter for you.

Once you have obtained a Judgment in respect of your debt you will need to attempt to enforce your Judgment. Enforcement procedures can range from obtaining an Instalment Order in the District Court to registering a Judgment mortgage against property of your debtor.

Learn more about District Court enforcement procedures..

By Terry Gorry Google+

Our solicitor’s fees for debt collection matters are set out below.

 

There are some cases where we would need to discuss the case with your first to advise you as to the probable professional fee and outlays to expect.

 

solicitors-fees

Debtor Demand Letters

Our demand letters, which demand payment within 7 days, are customized to your requirements. We provide three types of 7 day demand letter which we describe as

  • Soft
  • Medium
  • Hard

Our fee for sending debt collection letter is €50 which may have the desired effect; other fees will be discussed with you at your first consultation.

 

What type of letter you choose will depend on your relationship with your debtor, how long the money is outstanding and your personal preference-you may for example decide that the softer versions is more appropriate in the first instance if you have built up a relationship with the debtor over some years.

 

Correspondence fee

Our correspondence fee will arise when a debtor contacts us in relation to the demand letter with a query or perhaps looking for additional documentation, an invoice or other information.

 

When this happens we refer the issue to you in the first instance. If you wish us to deal with the debtor by way of correspondence and organising a payment plan, receipt of the payments, issuing receipts and forwarding the monies to you there will be a correspondence fee to cover this work which is not recoverable from the debtor in the absence of legal proceedings being issued.

 

Our minimum correspondence fee is €45.

 

solicitors-fees1

Legal Fees in Defended cases

In defended cases, that is where a Notice of Intention to Defend or an Appearance is entered and the debtor contests the case, our fees will include the Professional fees set out below plus our hourly charge out rate which we will notify you of prior to commencing work.

 

You will of course receive a section 68 letter setting out our fees and expected outlays or the basis on which we will charge or an estimate of our fees prior to commencing work. Each case will have it’s own particular character, level of expertise, skill and responsibility requirements and for this reason it is impossible to be absolutely definitive as to our fees in respect of defended cases.

 

Legal fees for enforcement of Judgments

To apply for an instalment order in the District Court for a Judgment already obtained or to bring committal proceedings our fee is €195 plus vat.

 

We can also

  • Register a Judgment mortgage and
  • Liaise with the Sheriff to have your judgment enforced.

Legal Fees in Undefended Cases

Our legal fees for obtaining judgment on your behalf in undefended cases in the various Courts are as follows:

DEBT AMOUNT

PROFESSIONAL FEES

ESTIMATED OUTLAYS

APPROXIMATE RECOVERABLE COSTS

€318 to €635

€150.00

€45.00

€43.23

€636 to €1,270

€195.00

€45.00

€69.34

€1,271 to €1,905

€230.00

€45.00

€94.33

€1,906 to €2,540

€295.00

€45.00

€108.16

€2,541 to €3,175

€315.00

€45.00

€133.15

€3,276 to €3,810

€330.00

€45.00

€147.95

€3,811 to €4,444

€375.00

€45.00

€176.57

€4,445 to €5,079

€425.00

€45.00

€191.94

€5,080 to €5,714

€465.00

€45.00

€220.00

€5,715 to €6,349

€525.00

€145.00

€222.00

€6,350 to €11,000

€650.00

€145.00

€222.00

€11,001 to €20,000

€990.00

€145.00

€222.00

€20,001 to €38,000

€1,350.00

€145.00

€222.00

€38,001 to upwards

€1,995.00

€295.00

€222.00

If you have any queries do not hesitate to contact us and you will find that we are approachable, responsive, professional and competitive.

By Terry Gorry Google+

The huge growth in use of the internet in the last few years has thrown up many issues which should be of concern to website owners and in particular small business owners who market their business online.

There are a wide range of areas in which you can fall foul in your promotion of your business on the internet.

illegal-use-of-the-internet

The potential areas of concern for website owners are extensive and include

  • Direct marketing and email marketing
  • Electronic commerce
  • Defamation
  • Copyright infringement
  • Trade mark infringement
  • Domain name disputes
  • Selling online and European Communities directives and regulations
  • Child pornography
  • Liability of internet service providers
  • Employees use of the internet in the workplace
  • Data protection

Three of the most common and serious areas of potential legal difficulty for website owners, individuals and small businesses include

  • Criminal behaviour on the internet
  • Intellectual property rights infringement
  • Infringement of the privacy rights of individuals.

Some of the most common activities on the internet which are or may be illegal (depending on jurisdiction) include hacking, framing, deep linking, harvesting and infringement of trade mark through the use of meta tags.

illegal-use-of-the-internet1

Hacking

Hacking broadly breaking into another’s computer or websites to steal information or cause damage. Whilst it can be difficult to prosecute in Ireland the Criminal Damage Act, 1991 contains a number of provisions to combat hackers.

Sections 2(1), 2(2), 3, 4 and 5(1) criminalises

  • Damage to property with property including “data” and damage including erasing, corrupting and altering data;
  • Threat to damage property even if the attempt to damage is unsuccessful;
  • Possession of anything with the intent to use it to damage property;
  • Unauthorised access with the intent to access “any data”.

 

The Data Protection Acts criminalizes unauthorised access to personal data.

Unlawful use of a computer is criminalized by the section 9(1) of the Criminal Justice (Theft and Fraud Offences) Act, 2001 and other illegal behaviour on the internet is covered by the Copyright and Related Rights Act, 2000 and the Electronic Commerce Act, 2000.

 

Harvesting

Harvesting is the activity of the collection of email addresses for spamming purposes and taking of information from databases of third parties without the latter’s consent.

Harvesting is criminalized by the Data Protection Acts 1998 and 2003 and possibly also by the Criminal Damage Act, 1991 and the Copyright and Related Rights Act, 2000.

Deep Linking

Deep linking to other websites can be unlawful in certain circumstances where those links infringe the rights of the owner of the website to which the link goes. (See Shetland Times Limited v Dr. Johnathan Willis [1997])

It is also possible that a simple link to another website which contains a registered trade mark term can be a breach of the intellectual property rights of the site to which you link. Playboy (www.playboy.com) in the United States won a case in relation to this activity when it discovered a pornographic site linking to it with it’s trade mark term.

Framing

Framing, which is the division of a website into “frames” where a website’s text is displayed next to linked third party material in the same window may be a breach of copyright law.

Meta tag trade mark infringement

Many cases in the United States have been taken successfully where a website owner sues a competitor for the use of a trade mark term as a meta tag in the competitors website, even though such meta tags may not be visible to surfers or visitors to the site.

Conclusion

Clearly there are many potential infringements in the area of internet law with remedies provided for in the statute books. It is an area where you would be well advised to assess your current engagement on the internet to ensure you or your business is not storing up problems for the future.

By Terry Gorry Google+

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?

enforce-uk-judgments-in-ireland

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.

(Solicitors Dublin would be happy to answer any of your questions arising from this article or to assist you with enforcing a UK judgment in Ireland)

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.

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.

enforce-uk-judgments-in-ireland1

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.

 

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.

 

Should you need any assistance in Ireland with having your UK judgment recognised and enforced in Ireland we are happy to assist-please use the Contact Us form with your query.

By Terry Gorry Google+

The two most common drink driving offences in Ireland are section 49 of the Road Traffic Act, 1961 (commonly known as “drunken driving”) and  section 50 of the same act, commonly known as “drunk in charge”.

Drunk in charge-section 50

To be successfully prosecuted for the offence of being “drunk in charge” under Section 50 of the Road Traffic Act, 1961) it is necessary to prove

  1. The offence occurred in a public place
  2. That the accused person intended to drive or intended to attempt to drive the car
  3. That the accused person was in charge of the vehicle.

drunk-in-charge

There is a presumption in law that the accused person intended to drive or intended to attempt to drive the vehicle; it is up to the accused person to prove to the contrary.

Whether the accused person was attempting to drive in the eyes of the law will depend on the facts of each case but there is an important Supreme Court case, DPP v Byrne (2001, unreported) where the accused person was held to be in charge with intent to drive under section 50.

In this case the accused

  • Was in the driver’s seat
  • Was actually asleep
  • Was pulled in to the hard shoulder
  • The keys were in the ignition, turned two clicks.

As in the previous offense of “drunken driving” the Garda can only arrest you after he has “formed the opinion” that you are committing or about to commit an offense under section 50. The Garda does not have a general power of arrest.

It is worth noting that to prove a section 50 offence the Garda will not have to prove that you were driving, only that you were in charge of the vehicle and that you intended to drive the car or intended to attempt to drive.

drink-driving-ireland

The concentration of alcohol required to prove this offence is an excess of alcohol in the blood of 80 milligrammes of alcohol to 100 millilitres of blood. There are other tests in relation to testing breath (35 microgrammes of alcohol per 100 millilitres of breath) and urine (107 microgrammes of alcohol per 100 millilitres of breath).

The sample must be taken within 3 hours of the alleged commission of the offence.

Lawful arrest under section 49 and 50, Road Traffic Act, 1961

It is important to note that the opinion of the Garda in order to arrest you lawfully must be a reasonable one and must be formed after ascertaining and considering the facts.

For the arrest to be lawful, there are 2 factors required:

1.       The driver must be informed why he is being arrested in plain language

2.      The driver must be informed that he is no longer at liberty.

Other important facts about drunk in charge

You cannot be given section 1(1) of the Probation Act, 1907. The penalties on conviction for section 50 are a fine of up to €5,000 and/or 6 months in prison.

Since October, 2011 the disqualification periods for “drink driving” offences has changed and will depend on whether you are an experienced driver or not and the level of alcohol you have in your system.

Contact a solicitor if you have been charged with either section 49 or 50 of the Road Traffic Act, 1961 as these are serious offences which can have long term consequences in many aspects of your life including from an employment and insurance perspective.

Learn about other road traffic offences. If you need a solicitor in Dublin please use the contact form on this site.

By Terry Gorry Google+

As there is no agreement in place between the United States and Ireland for the automatic recognition and enforcement of Judgments obtained from a court in the US in Ireland, it will be necessary to rely on common law rules.

This can lead to difficulties of enforcement of judgments obtained outside Ireland..

us-court-judgments-in-ireland

In fact, there is no bilateral treaty or multilateral international convention in force between the United States of America and any other country on a reciprocal recognition and enforcement of judgments.

 

The Irish common law rules/principles are quite restrictive and enforcing non-EU judgments in Ireland can be problematic as a consequence.

 

Common law principles

 

The common law principles that the Irish Courts will rely on are

  1. The US judgment must be for a liquidated sum, that is a definite monetary value
  2. The US judgment must be final and conclusive
  3. The US judgment must be granted in a Court of competent jurisdiction.

 

Number 1 above is obvious-you either have a judgment for a definite sum or not.

 

Likewise with number 2-the legal proceedings must have come to an end with no opportunity to appeal the judgment and the judgment must have been achieved following the correct procedures in the state in the US which granted the Judgment.

non-eu-judgments-in-ireland

 Court of competent jurisdiction

Number 3 above can be the most problematic as a result of a case called Rainford v Newell Roberts [1962] IR 95 where a Judgment was obtained by Rainford in the UK and sought to enforce the judgment in Ireland. (This situation would not arise now as a result of both countries mutual recognition of judgments due to various EU law and international conventions but is illustrative of the common law principles involved in seeking to have the US judgment enforced here)

 

This problem centres primarily on the question of proper service of the proceedings on the Defendant, as accepted by Irish rules of private international law.

 

In Rainford v Newell-Roberts the defendant had not been in the UK when served with the legal proceedings and had therefore not submitted to the jurisdiction of the English Courts and as a consequence the Irish Courts did not allow enforcement of the Judgment.

 

Where the dispute or Judgment arises as a result of breach of contract and the contract provides that a foreign jurisdiction will have exclusive jurisdiction in the event of a dispute the Irish Courts would be very likely to stay any proceedings instituted in Ireland and recognise the exclusive jurisdiction clause in the contract.

non-eu-judgments-in-ireland1

Grounds on which Judgment will be refused

In addition to the above considerations and criteria the Irish Courts will refuse to grant Judgment in Ireland where

  1. The Judgment would violate Irish public policy
  2. The foreign judgment was obtained by fraud
  3. The foreign judgment is in breach of natural justice
  4. The foreign judgment cannot be reconciled with an earlier foreign judgment.

Flightlease (Irl) Ltd (In Vol Liq) & Cos Act [2012] IESC 12

This 2012 decision of the Supreme Court in Ireland is instructive and helpful.

In Flightlease (Irl) Ltd (In Vol Liq) & Cos Act [2012] IESC 12 the Supreme Court was invited to accept the appropriate basis upon which the common law in this jurisdiction should recognise an in personam order of a foreign court. Flightlease argued that the traditional test as set out in Dicey (and in particular Rule 36) represents the current law in this jurisdiction. Swissair contended that the courts in this jurisdiction should follow the lead of Canadian courts and adopt a ‘real and substantive connection’ test.

(Read the full decision in this case here)

According to Rule 36 of Dicey if a judgment debtor was, at the time the proceedings were instituted present in a foreign country or if the judgment debtor submitted to the jurisdiction of the courts of the foreign country the Irish courts would recognise and enforce a judgment of a court of that country. (Dicey, Morris & Collins on Conflicts of Laws 14th edition (“Dicey”))

 

“Rule 36. Subject to rules 37 to 39, a court of a foreign country outside the United Kingdom has jurisdiction to give a judgment in personam capable of enforcement or recognition in the following cases:

 

First case. If the judgment debtor was, at the time the proceedings were instituted, present in the foreign country.

 

Second case. If the judgment debtor was claimant, or counterclaimed in the proceedings in the foreign court.

 

Third case. If the judgment debtor, being a defendant in the foreign court, submitted to the jurisdiction of that court by voluntarily appearing in the proceedings.

 

Fourth case. If the judgment debtor being a defendant in the original court, had before the commencement of the proceedings agreed, in respect of the subject matter of the proceedings to submit to the jurisdiction of that court or of the courts of that country.”

 

The Supreme Court decided that to follow the lead of the Supreme Court in Canada would lead to the Supreme Court in Ireland exceeding it’s judicial function and that the correct position is as set out by Rule 36 in Dicey outlined above.

You can learn more about debt collection in Ireland for international clients or contact us directly through our contact page.

By Terry Gorry Google+

Are you worried about redundancy and redundancy entitlements in Ireland?

Do you need to access a redundancy calculator to check what you can expect?

redundancy-calculator

Hopefully this comprehensive article will help give you a good, sound understanding of redundancy in Ireland, redundancy payments, notice periods and your employment rights in Ireland.

Non-collective redundancies in Ireland

An employer’s obligations in redundancy situations will depend on whether a collective redundancy is proposed or it is a “normal” redundancy in a small business in Ireland. The focus of this piece is non-collective redundancies; in collective redundancies there will be additional requirements on the employer imposed by the Protection of Employment Acts 1977 to 2007 and various regulations and other legislation.

In non-collective redundancies in Ireland there are no specific procedural requirements set out to carry out a redundancy dismissal.

What the employer must be very aware of though is the Unfair Dismissals (Amendment) Act, 1993 as this act holds that if the conduct of the employer is unreasonable in carrying out a redundancy then it may amount to unfair dismissal.

So it is vital that the employer act reasonably in carrying out a redundancy and a principal factor in how reasonable the behaviour was will be how the employer selected the employee(s) for redundancy and whether there were other alternatives to redundancy such as alternative employment or some other type of work in the employer’s business.

From an employer’s perspective it is important to be able to point to the reasonableness of his conduct when faced with the necessity for redundancy.

Even though it is not a procedural requirement from a legal perspective it is good practice for the employer to hold meetings and discussions to explore any alternatives and it would be prudent for the employer to make a record of these discussions and proposals

The ability of the employer to be able to point to a paper trail of how the decision to carry out redundancies was arrived at can prove invaluable at a later date, for example at an EAT or Rights Commissioner hearing.

redundancy-entitlements

The key point for an employer is to be able to demonstrate that people were selected fairly for necessary redundancies and that the employer acted reasonably at all stages of the process.

The selection of employees for redundancy has led to many employers paying quite a high price at a later date before the Employment Appeals Tribunal and unfortunately there are no criteria laid down in legislation for the selection of employees.

Some factors to be considered by the employer should include

  • Attendance record
  • Ability
  • Disciplinary record
  • Skill level

Many employers employ a policy of “last in, first out”. If there is a procedure in place in the workplace to deal with redundancy, as there is with most unionised workplaces, the employer will have to be able to show that the procedure was used to select each employee made redundant.

Nevertheless, no matter what criteria are used, the employer may well have to stand over his/her selection procedures at a later date and being able to objectively justify his choice will be his best defence.

It is worth noting also that the idea of “impersonality” should run through any redundancy decision-this means that the person is not redundant but it is actually the job that is deemed to be redundant-this may be due to change in the workplace or a downturn in business.

redundancy-ireland

Redundancy Calculator Ireland

Calculating your redundancy entitlements is pretty straightforward with the redundancy calculator provided online by the Department of Social Protection.(See link at the end of this article)

What is redundancy?

The legal definition of redundancy in Ireland is set out in the Redundancy Payments Act 1967 and amended by the Redundancy Payments Act 1971 and 2003-

an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to—

 

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

 

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

 

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.

Key factors in redundancy

There are two critical factors to be gleaned from this definition-

The redundancy should arise from the doing away with the job, not the person. This feature of impersonality is necessary in a genuine redundancy situation.

redundancy-payments

Change-the change must arise as a result of change in the workplace which might range from a closing down of the business to a simple reduction in number of employees.

Redundancy entitlements

To be entitled to a redundancy payment you must have the requisite period of service served which is:

104 weeks of continuous employment attained after the age of 16 years.

To be entitled to redundancy you will need to have been dismissed from your job; if you are given a new contract of employment or your old contract is renewed you will not be entitled to redundancy.

Short time/lay offs

You can be placed on short time or laid off where the employer is unable to provide work but only where the employer reasonably believes that the lay off will not be permanent.

The employer is generally obliged to pay the employed during this time although there are exceptions to this general rule depending on custom and practice in specific situations.

Redundancy payments

Redundancy payment entitlements are calculated by reference to weeks per year of service and is basically calculated as follows:

  • 2 weeks’ pay for each year of continuous employment over the age of 16 years
  • An additional one week’s normal earnings.

All earnings over €600 per week are disregarded though in calculating statutory redundancy payments and redundancy payments are tax free.

(Continuous employment is not broken by layoffs, holidays or sickness.)

Redundancy calculator

You can access a redundancy calculator on the website of the Department of Social Protection to calculate your redundancy entitlements. Click here to go to calculator.

See also solicitors Dublin if you have any queries arising from this article.

By Terry Gorry Google+

The Civil Summons procedure is the method of issuing legal proceedings in the District Court.

The District Court deals with claims with a value up to €6,348.69 (IR£5,000) and many people in Ireland will have been served with, or served, a Civil Summons in the last 18 months to pursue a debt.

civil-summons-procedure-ireland

Debt collection in Ireland has become increasingly active and pressurized in the last two years and an understanding of how to collect a debt or how to defend such an action is important to avoid having a judgment granted against you.

 

If you want to pursue a debt for less than €6,348.69 you can issue and serve a Civil Summons in your District Court area or in the District Court area of your debtor. Issuing a Civil summons in Dublin is slightly different than outside of Dublin.

Issuing a Civil Summons

To issue a Civil Summons in Dublin you simply bring your Summons along to the District Court office in the Four Courts. You will need two copies and one will need to be stamped with stamp duty of €20.

district-court-civil-summons

The District Court office will stamp your summons with a date. This date is called the return date which simply means that you appear in court on that date and will be given a date for the hearing of your claim.

Service of a Civil Summons

It is necessary though to firstly serve the Summons on your Debtor and you do this by serving a copy of the Civil Summons on them.

 

Service of any summons or legal document is determined by the rules of the various courts. Generally if you are suing a company you serve on the registered office of the company by ordinary post.

 

Service on an individual can be carried out by registered post or by personal service.

 

All of the rules in relation to service of legal papers and precedents for drafting your legal papers, such as your Civil Summons, can be found on the courts website at http://www.courts.ie

 

Once you have served your summons the debtor must file a Notice of Intention to Defend the proceedings in the office of the District Court. Once they do this your case will appear in the Court’s list on the return date and will be given a hearing or trial date.

 

If no Notice of Intention to Defend is filed by your debtor then you will be free to obtain a judgment against your debtor without any further court appearance.

 

If this is the case then one you get your Judgment or Summary Decree you send it to the Sheriff of the District court area for him/her to try to recover the value of your Summons.

 

Clearly if you are the recipient of a Civil Summons for A Debt then you should either make sure to fill out the Notice of Intention to Defend form and give it back into the District Court office and a copy to the person who is suing you (or their solicitor).

 

If you are not comfortable doing this yourself then you should call to a solicitor who will look after it for you.

 

But however you decide to act, do not bury your head in the sand if you are served with a Civil Summons or you run the risk of having Judgment granted against you in your absence.

By Terry Gorry Google+

The Trade Marks Act, 1996 defines a trade mark as “any sign capable of being represented graphically which is capable of distinguishing the goods or services of one undertaking from those of other undertakings”.

trademark-law

A trade mark is the means by which a business identifies its goods or services and distinguishes them from the goods and services supplied by other businesses and the registration of a trade mark is an important task for any small business owner.

A trade mark may consist of words, (including personal names), designs, logos, letters, numerals or the shape of goods or of their packaging, or of other signs or indications that are capable of distinguishing the goods or services of one undertaking from those of others.

 

Trade Mark Registration

 

Not all trade marks are capable of registration. Registration will be refused for a trade mark which:

  • is not capable of being represented graphically or not capable of distinguishing good or services of one business from those of other businesses,
  • does not have any distinctive character,
  • consists exclusively of signs or indications that designate essential characteristics of goods or services (e.g. their quality, intended purpose, geographical origin etc.),
  • consists exclusively of signs or indications which are customary in the language in the trade,
  • consists exclusively of the shape, arising from the goods themselves, or which is necessary to obtain a technical result, or gives substantial value to the goods,
  • is contrary to public policy or principles of morality,
  • is likely to deceive the public, e.g. as to the nature, quality, or geographical origin of the goods or services,
  • is applied for in bad faith,
  • is identical with or similar to a trade mark that is already on the Register in respect of identical or similar goods.

trade-mark-law-ireland

Trade mark registration creates an official record of your rights as owner of a particular trade mark and makes it easier to prevent others from using it.

 

Trade mark registration grants a statutory right, subject to certain conditions, to prevent others from using the trade mark without the registered proprietor’s permission – i.e. to prevent infringement.

 

Trade mark registration confers an exclusive right to authorise others by means of licensing to use the trade mark for the goods and /or services for which the trade mark is registered.

 

You should consider registering your trade mark if it is important to you that your customers are able to identify your products and services from those of your competition.

 

Unauthorised use of a trade mark means the rightful owner may lose business and goodwill.

 

Although trade mark registration is not obligatory, registration makes it easier to prevent others from benefiting from the reputation established by the use of a trade mark by allowing the proprietor of the registered trade mark to take infringement proceedings before the court.

 

The fraudulent application or use of a trade mark in relation to goods without the authorisation of the proprietor and/or the possession of goods or material bearing a mark identical to or nearly resembling a registered trade mark, may in certain circumstances, be a criminal offence, and criminal proceedings may be initiated under the Trade Marks Act, 1996.

Unregistered Trade Marks

If you use a particular brand for some period of time then you may have an unregistered trade mark. If someone infringes your brand or trade mark you will still have legal recourse to protect your trade mark.

 

However this will involve commencing legal proceedings under the common law heading of “passing off” and the onus of proof will be upon you to establish proof of your ownership of the unregistered trade mark. This can be costly and time consuming and you will not enjoy the protection of registration and the remedies provided by the Trade Marks Act, 1996.

trade-mark-registration

Benefits of Trade Mark Registration

The principal benefits of trade mark registration are

  1. Without registration you can only rely on a legal action for “passing off” to protect your rights
  2. Registration will help protect your business identity and goodwill
  3. It is proof of your ownership of the intellectual property rights of the trade mark
  4. Protection against other businesses whose products/services are defective who trade in the industry
  5. Protection against others using similar trade marks.

 

Types of Trade Mark

Ordinary or standard trade mark

The majority of all trade marks fall into this category. They consist of words, slogans, logos, etc. whose purpose is to distinguish the goods and services of their proprietors from those of other undertakings.

 

Collective mark

A Collective trade Mark is a mark that distinguishes the goods or services of the members of an association from those of others.

 

Certification mark

A Certification trade Mark is a mark that “certifies” goods or services as being of a certain standard or possessing certain qualities or other characteristics.

 

A certification mark can only be registered in the name of the proprietors if they themselves do not produce or provide the goods or services to which the mark is applied.

 

Series of trade marks

A series of trade marks is a number of marks, which resemble each other in their important features and differ only in respect of non-distinctive elements that do not substantially affect their identity.

 

Three-dimensional mark

A three-dimensional trade mark is a trade mark that consists of the shape of a product or its packaging.

Application for a Trade Mark(trade mark registration)

Any person or company etc who uses or proposes to use a trade Mark can apply to register that trade mark.

 

An application may be made either before the trade mark is put in use or afterwards. Generally speaking an application should be made to register a trade mark as soon as possible to ensure priority over anyone else who applies to register the same or similar mark.

 

To apply, complete the application form 1 on Patents Office website. The fee for filing an application may be paid at this time or within one month of that date.

 

An applicant may pursue his or her application personally or choose to employ the services of a registered Trade Mark Agent or solicitor.

 

If an application meets the criteria for registration, it is registered with effect from the date of application.

The Application Process

When an application (which contains the minimum information required) is received, a filing date and application number is assigned and a filing receipt is issued.

 

The Minimum requirements for a filing date are –

 

  • A request to register the Mark (completion of the prescribed application form meets this requirement),
  • The name and address of the person requesting the registration,
  • A representation of the trade mark,
  • A statement or list of the goods and/or services for which registration of the trade mark is sought.

 

The application is then examined as to its registrability. The examination process includes a search of relevant databases to ascertain whether the trade mark or a similar mark has previously been registered. If this is found to be the case, then the Office may refuse to register the trade mark.

 

The examination also addresses other obstacles to trade mark registration such as, for example, whether the mark is simply a laudatory statement of a product’s quality (e.g. “Best Quality”) or a sign that has become generic within a particular field of commercial activity. These are among a number of grounds on which an application for registration may be refused.

 

If it is proposed to refuse registration in a given case, the Applicant will be informed of the reasons why and will be afforded an opportunity to make arguments in support of the application. Before any decision to refuse becomes final, the Applicant will have a right to attend an oral hearing before a senior official of the Patents Office.

 

If the application is accepted for registration, details of the mark will be published in the Official Journal. Within 3 months of the advertisement of a trade mark, any person who objects to its registration may send a notice of opposition to the Office accompanied by the prescribed fee and the Office will copy this to the Applicant.

 

Each side (the Applicant and the Opponent) is then given an opportunity to file evidence in support of its case and the question of whether the mark should be registered is ultimately decided by a senior official of the Office.

Length of time

A trade mark registration can last indefinitely provided the registration is renewed. Registration is initially for a period of ten years (from the date of filing of the application) and it can subsequently be renewed every ten years on payment of the renewal fee.

 

If you need a trademark registered of if you are the victim of infringement of your trade mark please use the contact form to contact Solictitors Dublin.

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