As we approach the end of 2011, it is appropriate to reflect. Whilst business conditions remain generally very difficult, the past year has seen some progress in the Irish economy with a low level of growth returning. At RDJ, our lawyers, working with clients in the export, food, IT and multi-national sectors have been very busy as businesses in these sectors are performing strongly. The challenge for 2012 will be to expand these activity levels across all sectors so that all business boats are lifted by the economic tide. As always, this newsletter has a range of interesting articles on legal subjects together with some news about various RDJ activities. I do hope you f i n d t h i s newsletter interesting and do feel free to let us have your feedback on any aspect of the publication. Finally, with Christmas fast approaching, I would like to wish all our clients and business colleagues a Happy Christmas and best wishes for 2012. 1. Welcome to the Winter 2011 edition of Connect, the RDJ newsletter. in this issue... 1 Welcome note 2 The Multi Unit Developments Act 2011 3 Priory Hall - some hard lessons on Building Regulation 4 Posted on the Internet - Written in Stone 5 EU Consumer Rights Directive FIRM NEWS 6 RDJ UCC Law Scholarship 2011 7 Cork BIC’S “Going International” Conference 2011 8 Marymount opens new hospital building 9 RDJ clients making headlines 10 RDJ Hockey Star 11 RDJ Glynn Sponsorship 12 CIPD Southern Region Breakfast Briefing rdj.ie connect 11 issue 25 Ronan Daly Jermyn, 12 South Mall, Cork. Tel + 353 21 480 2700 RDJ Glynn, Aengus House, Long Walk, Galway. Tel + 353 91 594 777 John Dwyer Managing Partner [email protected]view all our archived newsletters online @ RDJ Cork & Galway WINTER Pictured is a section of the attendance at a recent Breakfast Briefing on the legal issues regarding Social Media which was hosted by RDJ.
Transcript
As we approach the end of 2011, it isappropriate to reflect. Whilst businessconditions remain generally very difficult,the past year has seen some progress in theIrish economy with a low level of growthreturning.
At RDJ, our lawyers, working with clientsin the export, food, IT and multi-nationalsectors have been very busy as businessesin these sectors are performing strongly.
The challenge for 2012 will be to expandthese activity levels across all sectors sothat all business boats are lifted by theeconomic tide.
As always, this newsletter has a range ofinteresting articles on legal subjects
together withsome newsabout variousRDJ activities.
I do hope you f i n d t h i s newsletterinteresting and do feel free to let us haveyour feedback on any aspect of thepublication.
Finally, with Christmas fast approaching,I would like to wish all our clients andbusiness colleagues a Happy Christmasand best wishes for 2012.
1. Welcome to the Winter2011 edition of Connect,the RDJ newsletter.
in thisissue...
1 Welcome note
2 The Multi Unit Developments Act 2011
3 Priory Hall - some hard lessons onBuilding Regulation
4 Posted on the Internet -Written in Stone
5 EU Consumer Rights Directive
FIRM NEWS
6 RDJ UCC Law Scholarship 2011
7 Cork BIC’S “Going International”Conference 2011
8 Marymount opens new hospitalbuilding
9 RDJ clients making headlines
10 RDJ Hockey Star
11 RDJ Glynn Sponsorship
12 CIPD Southern Region BreakfastBriefing
rdj.ie
connect 11
issue 2
5
Ronan Daly Jermyn, 12 South Mall, Cork. Tel + 353 21 480 2700 RDJ Glynn, Aengus House, Long Walk, Galway. Tel + 353 91 594 777
Pictured is a section of the attendance at a recent Breakfast Briefing on the legal issues regarding SocialMedia which was hosted by RDJ.
The Multi-Unit Developments Act 2011(the “Act”) came into force on 1 April2011. The Act is applicable to both newand existing multi-unit developments(“MUDs”). A MUD is defined as adevelopment comprising of at least 5residential units. It may also have acommercial element in which case it isreferred to as a “mixed” MUD.
Application of the ActThe Act applies to three categories ofMUDs:-1. Existing MUDs, where 80% of theunits have been sold. The developer isobliged to ensure that the legal andbeneficial interest in the relevant commonareas is transferred by 1 October 2011.
2. Existing MUDs, where less than 80%of the units have been sold. Thedeveloper must ensure the legal interest inthe common areas is transferred (again by1 October 2011) but can retain thebeneficial interest until the MUD iscompleted. On completion of thedevelopment the developer is obliged tovest the beneficial interest in the OwnerManagement Company (“OMC”) byway of declaration.
3. New MUDs, where no units have beensold prior to the commencement of theAct. In this case the legal interest in thecommon areas must be transferred to theOMC prior to any of the units being sold.Again the developer is permitted to retainthe beneficial interest pending completionwhich must then vest in the OMC by wayof declaration.
Obligations on Developers –- Set up the OMC at their own cost;- Ensure the transfer of relevant commonareas to the OMC. - Amend the Memorandum and Articlesof existing management structures;- Enter into a contract with the OMC in
respect of completion of the relevantcommon areas in accordance withplanning permission and buildingregulations. The OMC is entitled to takeindependent legal advice on this contractand the developer is obliged to pay forthis advice where necessary; - Provide a fire safety certificateconfirming that the relevant commonareas comply with fire safety regulations;
- The developer and OMC must ensurethat service charges are set out fairly andprovide the basis for calculation of thesecharges on an annual basis; and
- Pay the service charge in respect of unitswhile unsold.
Rights for Unit Owners – - Application to the Circuit Court tocompel the developer to transfer therelevant common areas or deal withissues that arise in respect of the MUD.
- Transparency in respect of annualservice charges levied and assurance thatthe developer is obliged to contribute inrespect of all unsold units;
- Assurance that a sinking fund exists toensure the future viability of thedevelopment, which must be establishedwithin 18 months of the commencementof the Act (i.e. by 1 October 2012); and
- If the management company has beenstruck off the Register, the unit ownersmay apply to restore the managementcompany within 6 years of the strike off.
Non-compliance – what are thepenalties?
- While unit owners can apply to theCircuit Court to ensure theprovisions of the Act are beingadhered to, the Act does not providefor the Court to make specific orderspenalising the developer for non
compliance with the Act. The Courtis entitled to make appropriate costorders, and to direct the parties tomediate where appropriate.
- Where the developer has enteredinto a contract with the OMC for thecompletion of the common areas,failure to comply with this contractwill allow the OMC to bring specificperformance proceedings.
The Act is generally a welcome stepin the regulation of MUDs. Whilethe Act places extensive obligationson the developer, unfortunately, forunit owners of existing MUDs, thechallenge of ensuring compliancewith its provisions may be onerous,costly and time consuming.
David O’Shea who assisted with thisarticle can be contacted at:[email protected]
connect Winter 11
2. The Multi Unit Developments Act 2011 -An Overview
By Carrie McDermott, Solicitor, Litigation Unit
www.rdj.ie
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Recent media reports of serious fire safetydeficiencies in the Priory Hall apartmentdevelopment at Donaghmede Dublin andthe evacuation of residents havehighlighted the real life consequencescaused by defective buildings.
At first glance, it might seem surprisingthat this situation could have arisen in arecently built development given existinglegislation which imposes high buildingstandards.
Purchasers are advised to have a buildingsurvey carried out on the property priorto purchase and to obtain confirmation ofcompliance with Building Regulations.However, a building survey does notinvolve opening up work and thereforewill not identify hidden defects.
Fire safety requirements and buildingstandards are set out in the StatutoryBuilding Code which came into force on1 June 1992 under the Building ControlAct 1990 and were strengthened with theBuilding Control Act 2007. Under the Actthe various Building Regulations providefor building standards, workmanship,conservation of fuel and energy andaccess for people with disabilities. TheBuilding Control Regulations provide forprocedures to be administered by theBuilding Control Authorities (the localauthorities) through notifications such asCommencement Notices and Fire SafetyCertificates. There are also powers ofenforcement and inspection. Thelegislation imposes a general obligationthat every building to which the Actapplies must be designed and constructedin accordance with the Regulations. The Building Control Authority (BCA)
receives notification of all works that aresubject to the statutory code through theCommencment Notice issued by thedeveloper prior to commencingconstruction work. Following this theBCA inspectors can inspect the works atany stage and issue an enforcement noticeif there is any non-compliance.
Inspections by the BCA are notmandatory and reports indicate thatrandom inspections of a target of only15% of all developments are carried out.For the most part compliance with thestatutory code relies on self-certificationby those involved. A purchaser willrequire confirmation from the developer’sarchitect or engineer that thedevelopment has been designed andconstructed in substantial compliancewith the Building Regulations. This isgiven in the form of an opinion, theformat of which is agreed between theLaw Society of Ireland and therepresentative bodies of the consultantssuch as the RIAI. The opinion may relyon confirmations from others involved inthe development such as the contractor.The opinion will refer to the scope ofservices provided - if the architect has notbeen involved in inspecting the worksduring the construction phase the opinionwill only be based on a visual inspectionof the building after the works have beencompleted. Current economic difficultieshave caused many projects to besuspended with consequent changes inthe design team or contractors involved.The original architect may refuse to issuethe required opinions and thereplacement architect’s opinion may beheavily qualified and may not confirmwith sufficient certainty that the
constructed works are fully compliant. There is a convincing case to be madethat improved enforcement of theBuilding Regulations is needed tominimise the reliance on self-certification.Independant inspections and certificationby the BCA may be the most appropriatemeans of enforcing full compliance. Thiswould result in placing responsibility andpotential future liability for failures onthe BCA. Alternatively, establishing aregister of approved independentinspectors to carry out this work might beworkable (similar to BER assessors). Inthe United Kingdom, approved inspectorswork with the developer before, duringand after construction with satisfactoryoutcomes for ensuring compliance.
In an already crippled constructionindustry, greater regulation may be seenas a further obstacle to recovery.However, the Priory Hall situationhighlights the real need to strengthen theinspection and certification process toensure full compliance with the BuildingRegulations.
Ronan Daly Jermyn, 12 South Mall, Cork. Tel + 353 21 480 2700 RDJ Glynn, Aengus House, Long Walk, Galway. Tel + 353 91 594 777
3. Priory Hall -Some Hard Lessons on Building Regulation
By Finola McCarthy, Partner, Construction Unit
www.rdj.ie
As Justin Timberlake’scharacter in the movie“The Social Network”stated: “We used to live onfarms, then in cities…nowwe’re all living on theinternet”. So if we are allliving on the internet howdo organisations andemployees get on in thiscyberspace? There havebeen two interesting casesthis year which dealspecifically with the issuesof social media and emailand disciplinary matterswhich might arise.
In the case of JD Wetherspoons Plc –v-Ms KC Preece (January 2011) anemployee of a pub chain was dismissedafter she had posted ill-advisedcomments on her Facebook site abouttwo customers who had allegedlyverbally abused her while workingbehind the bar earlier in the evening.The customers’ daughter spotted thecomments and reported her. TheEnglish Employment Appeals Tribunalupheld the dismissal. In reaching thisdecision the Tribunal took severalimportant factors into account. Theemployer had an unambiguous emailand social media policy which expresslydealt with the use of social media whichincluded a provision stating thatdisciplinary action could be taken
should the content of any onlinestatement (including statements on sitessuch as MySpace or Facebook) “befound to lower the reputation of theorganisation, staff or customers…”.The employee had indicated heracceptance of the policy by way ofsignature and the employee handbookmade it clear that any failure to complywith the email/internet policy couldamount to gross misconduct leading todismissal.
The very recent Bank of Ireland (ICSBuilding Society) case (28 September2011) emphasises the requirement ofemployer fairness and proportionalityeven where there have been clearbreaches of what would be consideredreasonable email usage. The Bank tookdisciplinary action against tenemployees over the circulation of emailsof an indecent, obscene andpornographic nature. It ultimatelydismissed five workers, including thetwo claimants in the case. The twowomen worked in the mortgageoperations section. One had nearly7,000 emails in her system 70% ofwhich were non-work related and theother had close to 3,000, 56% of whichwere non-work related. There was nodispute that the emails had been sentand that they were inappropriate. Theclaimants’ position was that the abuseof the policy was widespread in the ICSBuilding Society (then owned by Bankof Ireland) and breaches were beingcommitted by staff at both the sameand more senior levels than them. TheTribunal was not unsympathetic andwhile holding that the email policy wasbreached, nevertheless held that the
two employees had been unfairlydismissed essentially on the basis thatthe sanction in all the circumstanceswas disproportionate.
The cases are a reminder that a goodemail/internet/social media policy isessential. The days where policiescould simply state whether or not anemployee is allowed to use the internetor not are over. The policy should dealwith what is acceptable in and outsidethe workplace, including social media.Inevitably situations will arise whereemployers have to consider disciplinaryaction or even dismissal. The normalrules apply. There must be a genuinebelief, based on reasonable grounds,following a reasonable investigationthat the employee was guilty ofmisconduct. Even if the employee isguilty, the employer must think aboutthe sanction carefully. Beproportionate.
Prevention is of course the best cure.Employees should be made aware of thepotentially drastic impact their socialmedia or email activity might have.
The EU Consumer RightsDirective (the “Directive”)was adopted by the EUCouncil of Ministers on the10th October 2011 andconcerns contracts for salesof goods and services frombusinesses to consumers. Thepurposes of the Directive areto enhance consumerconfidence and strengthenconsumer rights in theinternal market and also toreduce business reluctance toengage in cross bordertrading. The Directive seeksto achieve these purposes bygiving consumers a commonlevel of protection across theEU.
Current Position:The Directive will replace the Distance
Selling Directive (97/7/EC) and the Door
to Door Directive (85/577/EEC) and also
amends the Unfair Contract Terms
Directive (93/13/EEC) and the Sale of
Consumer Goods and Guarantees
Directive (99/44/EC).
The above directives lay down minimum
requirements that Member States were
obliged to transpose into their national
law. However, as individual Member
States can adopt stricter national rules,
the laws of each Member State often vary
considerably causing uncertainty for
traders and consumers proposing to sell
and purchase products and services in
different countries.
Four Key Provisions of theDirective(1) Cooling off Periods:
When a consumer buys a product or
service off-premises or online he will be
entitled to a cooling off period of 14 days
(subject to certain exceptions set out in
the Directive) in which he may withdraw
from the contract without giving a
reason. This replaces the cooling off
period of 7 days currently provided for in
the Distance Selling Directive. When a
consumer buys goods online the 14 day
cooling off period will commence from
the date on which the consumer acquires
physical possession of the goods, rather
than the date of the conclusion of the
contract which is currently the case.
(2) Refund Rights:
The Directive provides that a trader will
be obliged to reimburse all payments
received from a consumer (to include
delivery costs) within 14 days from the
date that the trader is informed of the
consumer’s decision to withdraw from the
contract. The consumer shall be
responsible for bearing the direct cost of
returning goods unless the trader has
agreed to bear these costs.
(3) Pre -Ticked Boxes Prohibited:
Traders must obtain explicit consent from
consumers for any payment due in respect
of extra goods and services and cannot
infer this consent by using pre-ticked
boxes. For example an airline can no
longer include a pre-ticked box for travel
insurance on its website where a
consumer is buying a plane ticket and if it
does so the consumer will be entitled to
reimbursement of this extra payment.
(4) Rules on delivery and passing of risk
to the consumer:
The Directive provides that unless
otherwise agreed by the parties the trader
must deliver goods to the consumer
within 30 days of the conclusion of the
contract. If the trader fails to deliver the
goods within this time or an additional
period of time agreed to by the consumer
the consumer will be entitled to terminate
the contract. The Directive also provides
that the risk of loss or damage to goods
shall only pass to the consumer when the
consumer has acquired physical
possession of the goods and as such the
trader will bear the risk of loss or damage
to goods during delivery.
Preparation for newmeasures:Member States will have two years from
Ronan Daly Jermyn, 12 South Mall, Cork. Tel + 353 21 480 2700 RDJ Glynn, Aengus House, Long Walk, Galway. Tel + 353 91 594 777
5. The EU Consumer Rights Directive
By Marie Gavin, Solicitor, Corporate and Commercial Unit
www.rdj.ie
Ronan Daly Jermyn, 12 South Mall, Cork. Tel + 353 21 480 2700 RDJ Glynn, Aengus House, Long Walk, Galway. Tel + 353 91 594 777
connect Winter 11
Firm News
6. Ronan Daly Jermyn UCC Faculty of Law Scholarship 2011
7. Cork BIC’s “Going International Conference 2011”
Pictured is John Dwyer, Managing
Partner of RDJ with Anthony
O’Dwyer, the recipient of this year’s
RDJ UCC Scholarship. Anthony is
currently completing an LLM by
Research entitled “Investigating the
legitimacy of extending artist’s
resale right to other creators within
an EU context” under the
supervision of Dr. Louise Crowley,
UCC.
RDJ was a founding partner of
CorkBIC’s “Going International
Conference 2011”.
The conference took place on 13
October, 2011 and welcomed
over 130 delegates for a day of
exploration, discussion,
networking, challenges and
experiences. Adrian Wall, RDJ
Corporate Partner, participated
in a panel discussion on
“Maximising Returns on Exits”.
Pictured is Candace Johnson, a
serial entrepreneur and voted
one of Europe’s most powerful
women by Time Magazine,
addressing the Conference
Ronan Daly Jermyn, 12 South Mall, Cork. Tel + 353 21 480 2700 RDJ Glynn, Aengus House, Long Walk, Galway. Tel + 353 91 594 777
connect Winter 11
Firm News
8. Marymount opens new hospital building
9. RDJ clients making headlines
The new St. Patricks University Hospital and Marymount University Hospice opened in September 2011. Built at a cost of €56 million
on a green field site at Curraheen, on the outskirts of Cork City, the facility has transformed how services for older people and specialist
palliative (hospice) care are provided in Cork, and has set a new standard for such services in Ireland.
RDJ advised Marymount on the site selection and construction project and on the occasion of a recent visit to the facility by John Dwyer
and Nicholas Comyn, Marymount CEO, Kevin O’Dwyer, took the opportunity to thank RDJ for their professional support throughout
the entire process, and indeed for continuing to provide the full range of legal services for the hospital in all aspects of its business,
something that they have been doing successfully for many years.
In addition to its role as legal adviser, RDJ is very pleased to support Marymount as a charity partner.
Pictured at a recent
visit and tour of the
new Marymount
facility are (left to
right):
RDJ Consultant,
Nicholas Comyn,
Marymount CEO,
Kevin O’Dwyer and
RDJ Managing
Partner, John Dwyer.
Taken from the Irish Examiner, November 2011
“An Irish company claims to have created a new form of aspirin
that can be taken by patients over prolonged periods without
suffering the side effects associated with long-term use.
Cork-based Solvotrin Therapeutics say they have created a
“prodrug” version of the familiar medication meaning its key
ingredients do not begin to work as soon as they are swallowed,
with the associated risks to the gut that this entails, but are only
activated when they reach a specific target in the body.”
“A Cork Company is boldly going where no
other company has gone before after it won
a €1 million contract to develop a new
blood-testing device for astronauts onboard
the International Space Station.
The European Space Agency has selected
Radisens Diganostics to add a thyroid test
to a point-of-care device
currently in development at its facility in
Bishopstown.”
RDJ is advising two young innovative companies who are developing exciting new technologies.
connect Winter 11
For further information on any matter in this newsletter please contact: Olivia Baldwin Tel: +353 21 480 2700 or Email: [email protected]
Firm News
This newsletter is intended for general interest and guidance only and should not be used as a basis for decisions. Whilst every effort has been made to ensure the accuracy of the content, noliability can be taken for any omissions or errors.
11. RDJ Glynn Sponsorship
12. CIPD Southern Region Breakfast Briefing
10. RDJ Hockey Star Pictured is John C.
Jermyn in action for
Ireland against Holland
in the European Hockey
Championships in
Mon c h e n g l a d b a c h ,
Germany, last August
where Ireland finished
5th.
On 28th September last, Jennifer Cashman, Partner in Ronan Daly Jermyn Solicitors' Employment Law Unit, presented at the CIPD SouthernRegion Breakfast Briefing on the implementation of the EU Temporary Agency Workers Directive in Ireland. The event was sponsored byRecruitIreland.com and was held in Maryborough House Hotel, Cork. In her presentation, Jennifer also gave practical advice to employersand managers on how to prepare their business for the changes and challenges they will face resulting from the implementation of theDirective.
Pictured above is JP Gilmartin presenting the RDJ Glynnsponsorship of the Junior Chamber Ireland Galway YoungEntrepreneur of the Year 2011 awards which took place at theClaregalway Hotel, Co. Galway, to the event organisers MaryGiblin and Oisín Concannon.
Pictured at the recentCIPD BreakfastBriefing were from left:Charlie Dolan - CIPDChair, KateMcGuinness, HorizonCoaching owner, Jennifer Cashman RDJ, Tom CrosbieRecruitIreland.comManaging Director,CIPD Committeemember Barry Hill, &Sinead JohnsonRecruitIreland.com.
Picture courtesy ofDenis Minihan, IrishExaminer
"We would like to wish you all a very Happy Christmas and a Peaceful & Prosperous New Year".This Christmas, instead of sending cards we are making a contribution to a number of Irish charities.
John won his first Irish cap against Belgium in 2002 and he currently
has 132 caps and has scored 72 goals for his country. Although
injured presently, John hopes to be fully fit to play in the upcoming
Olympic Qualification tournament which will take place in Dublin
from the 11th to the 18th of March 2012.
John is a solicitor in the RDJ Employment Team who advise our
clients on all aspects of employment and labour law.
