Central Bank and Financial Services Authority of Ireland (Amendment) Act 2017

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Central Bank and Financial Services Authority of Ireland (Amendment) Act 2017

Published 29 agosto 2017

Enacted on 25 July 2017, this legislation contains significant and far reaching changes to the limitation period for complaints to the Ombudsman.

Amendment to the Limitation Period

For complaints relating to "long-term financial services", the Act extends the limitation period for the hearing of complaints beyond the traditional 6 year limitation period.

The Act defines "long-term financial services" as services where:

  1. The actual or intended duration of the service is five years and one month or more;
  2. Life Assurance to which the EC (Life Assurance) Framework Regulations 1994 apply.

The limitation period for such products is either 6 years from the date of the act or conduct giving rise to the complaint or 3 years from the date the complainant did, or ought to have become aware of that act or conduct.

The Ombudsman may also extend the limitation period if, "there are reasonable grounds for requiring a longer period and that it would be just and equitable, in all the circumstances, to so extend the period."

Effectively therefore, the limitation period where the complaint relates to long-term financial services is a matter for the Ombudsman.

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A Guide to the Mediation Bill 2017

The Mediation Bill 2017 (the "Bill") which was published on the 13 February 2017 seeks to formalise what is already a popular non-adversarial method for resolving many different types of disputes. The Bill recognises the important contribution that mediation and conciliation can bring to the resolution of complaints and disputes.

The Minister for Justice, Frances Fitzgerald, said she believed it “has a vital role to play in reducing stress levels for people involved in various disputes and in providing a speedier, more efficient and less costly alternative to going to court”.

New Statutory Obligation to advise Mediation – Part 3

If it is enacted, for the first time, under Part 3, solicitors (including in-house solicitors providing legal services) and barristers will have a statutory obligation to advise clients to consider using mediation as a means of resolving their dispute prior to issuing proceedings. The obligation includes advising:

  • The client generally to consider mediation as a means of resolving the dispute
  • On mediation services and information including details of qualified mediators
  • On the advantages and benefits of mediation
  • On the confidentiality of the process
  • On the enforceability of mediation settlements as per Sections 10 and 11 of the Bill.

The Bill describes mediation as a "facilitative voluntary process in which parties to a dispute, with the assistance of a mediator, attempt to reach a mutually acceptable agreement to resolve the dispute" and confirms the process to be confidential and privileged.

The Bill obliges parties to a dispute to give serious consideration to mediation as a route to resolution.

If mediation is chosen as a route to potential resolution of a dispute, the Bill places an onus on the mediator to make every reasonable effort to conclude the mediation in an expeditious manner which is likely to minimise costs.

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Negligent Misstatement and the Importance of Disclaimers

Walsh –v- Jones Lang LaSalle Ltd [2017] IESC 38.

Judgement of Ms. Justice Laffoy delivered on 1st day of June 2017.

The Appeal - The death knell of Mr. Walsh's claim against JLL.

There has been some clarity on the law in relation to negligent misstatement following this Supreme Court majority decision.

In its long running appeal against property developer David Walsh, JLL was found to have no liability for damages which were sought arising from a dispute regarding a disclaimer contained in a property sales brochure.

Negligent misstatement relates to a representation of fact, which is carelessly made, and is relied on by another party to their disadvantage. It is possible to claim for economic loss arising out of a negligent misstatement where no contractual or fiduciary relationship exists between the parties, provided however that a special relationship or a sufficient proximity[1] exists between the parties. Generally, a special relationship will exist where the adviser knows that the other party is justifiably relying on him for his skill, expertise or knowledge.

High Court 2007 - Decision

The case centred on a two page JLL brochure which contained incorrect floor area measurements but also a disclaimer in smaller print which stated that "every care" was taken in the preparation of the brochure but that the intending purchaser should "satisfy themselves as to the correctness of the information given".

Mr. Walsh, a purchaser for investment purposes of commercial premises in Dublin, claimed that he was entitled to rely on the statement in a sales brochure that the floor area was a given square footage. The actual square footage was less than was stated in the brochure.

Mr. Walsh alleged that by miscalculating the floor area of the property by 20% and publishing the incorrect calculation within its sales brochure, JLL acted in breach of a duty of care which it owed to him. He thereafter argued that JLL was guilty of negligence and negligent misstatement, which resulted in Mr. Walsh sustaining loss and damage.

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[1] Hedley Byrne & Co. Ltd. –v- Heller & Partners Ltd [1964] AC465

Supreme Court considers the appropriate approach to be taken to Solicitors' Costs

Sheehan v Corr Supreme Court [Appeal No 94/16]

On 15 June 2017 the Supreme Court issued a judgement in a matter which the Court described as "raising very important questions in relation to the taxation of a party's costs in litigation".

Background Facts

The Plaintiff to the original High Court action, Isabelle Sheehan, suffered catastrophic injuries at birth, resulting in profound disability. Proceedings were taken against her Consultant Obstetrician. Breach of duty was admitted in the defence to the action, but causation was not admitted until approximately five weeks prior to trial. The matter then proceeded as an assessment of damages, which was heard over the course of 5 days in October 2011. The case was ultimately settled for a total of €11.5m.

The Plaintiff's solicitors, Augustus Cullen instructed cost accountants to prepare a bill of costs which proceeded to taxation. Their instructions fee was €485,000, which was set out without any detailed breakdown or explanation of that figure. Augustus Cullen had only begun time recording in August 2011, and therefore time spent on the case from 2009 to August 2011 was not recorded. This time was therefore estimated, and in support of their estimate Augustus Cullen provided a print out of the number of entries/actions recorded on their keystone case management system up to the date of judgment (1,463 activities). Two senior solicitors, both with hourly rates of €375 had been working on the file and Augustus Cullen estimated that between 1,000-1,200 hours had been spent working on the case in total.

The taxation came before the Taxing Master in September 2012, and was heard over two days. The solicitor's instructions fee was reduced by the Taxing Master to €270,000. Augustus Cullen objected to this decision, and the objections were heard by the Taxing Master over 4 days between September 2013 and March 2014, ultimately leading to an increase of the solicitor's instructions fee to €276,000.

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Authors

Jane Kenneally

Jane Kenneally

Dublin

+353 (0) 123 19673

Key Contacts

Noreen Howard

Noreen Howard

Dublin

+353 (0)1 231 9682

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