Volkswagen can face emissions claims where cars bought, EU court rules

European Union citizens should be able to sue Volkswagen in their national courts if they have bought cars with emission cheat devices installed, the EU’s top court has ruled.

The Court of Justice of the European Union has today ruled that EU consumers should be able to sue Volkswagen in their national courts. This is a step in the right direction for the vast number of Clients that Burns Nowlan LLP Solicitors are acting for in seeking compensation from Volkswagen for installing defeat devices in their vehicles. We have noted that the majority of our clients were first notified of the defeat devices in October 2015. The timeframe for issuing proceedings against Volkswagen is 6 years from this date and therefore anyone who has been affected should contact us as quickly as possible to ensure they protect their legal rights.

You can reach us at 045 432382 or info@bnsolicitors.ie

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Do parents have to leave something to each/any of their children in a will?

Section 117 of the Succession Act 1965 cover this very difficult question where it provides :

“ Where on application by or on behalf of a child of a testator, the court is of the opinion that the testator has failed in his moral duty to make proper provision for the child in accordance with his means, whether by his will or otherwise, the Court may order that such provision shall be made for the child out of the estate as the Court thinks fit”

The term “child” in the context of the Act includes an adult child, a child born outside marriage and an adopted child. The essence of the claim is that the testator has failed in his/her moral duty to make proper provision for the child in accordance with his/her means. The application is considered by the Court rom the point of view of a prudent parent

The criteria for determining whether proper provision was made was set out in the case of FM-V-TAM :

a. The number of children, their ages and their positions in life at the date of the testators death;
b. The means of the testator;
c. The age, his/her financial position and prospects in life of the child;
d. Whether the testator has already made proper provision for the child.

In the case of In the Estate of ABS decd. Kearns J. held that the relationship of parent and child does not of itself and without regard to other circumstances create a moral duty to leave anything by will to a child. In addition he held that the section does not create an obligation to leave something to each child. The Court must consider the entirety of the testator’s affairs so that the moral claims of others may require such provision to be reduced or omitted altogether. Most importantly the Court must not disregard the fact that parents must be presumed to know their children better than anyone else.

The claim must be brought within a period of 6 [six ] months from the taking out of the Grant of Probate.

For specific advice on what is undoubtedly a complex issue contact us now on 045 432382 or info@bnsolicitors.ie

Donor Assisted Human Reproduction Regulations

The Children and Family Relationship Act 2015 came into effect on the 4th of May 2020.  Parts 2 & 3 relate to the regulation of donor assisted human reproduction [ D.A.H.R.] procedures carried out in Ireland and clarify the legal position of all parties involved and importantly the legal parentage of children born by way of D.A.H.R.

From the 4th. of May the use of donor sperm or eggs and donor embryos must comply with these regulations.  The Act allows donor conceived children access to information on their genetic heritage.

The main provisions of the Act are as follows: –

  1. Donors must sign away parental rights and consent to their donation being used in a D.A.H.R. procedure.
  2. The birth mother and the other intending parent must consent to their information being held on the Donor-Conceived-Person Register.
  3. Certification of a D.A.H.R. procedure allows both intending parents to be named on the birth certificate of the child.

The majority of anonymously donated sperm or eggs will no longer be eligible to be used in Irish fertility clinics. There is a three-year transitional period, which allows a sibling to be conceived using the same donor. In these cases, anonymously donated sperm of eggs may be used until 4 May 2023.

For children born prior to 4 May 2020 a Declaration of Parentage will be needed from either the District Court or Circuit Court. If you have conceived a child by way of  D.A.H.R. and wish to apply for a declaration or amend a birth certificate to name both parents please contact Burns Nowlan for further information.

Unfortunately, surrogacy is not covered under this Act but will be addressed in the proposed forthcoming Assisted Human Reproduction Bill.

For more information contact us on 045 432382 or info@bnsolicitors.ie

Online Shopping

Sometimes online shopping is an impulse purchase which after a few minutes or days we might regret or reconsider. Alternatively when the purchase arrives it looks nothing like what was promised in the online advertisement.

Under EU legislation when a person buys a product from an EU based website you have a right to return it for whatever reason. As an online purchaser you will always have 14 days to change your mind from when you receive the purchased product.

However you must notify the seller/business from whom you purchased that it is your intention to cancel the transaction within the 14 day period. When you have written to the seller/business to let them know your intentions you then have 14 days from that date to return it. It would be best to ensure you send the email cancelling the purchase with a read receipt or delivery request to ensure there is no dispute that you did in fact write and that it was received.

Please note that the same rights are not afforded to you when you buy from a website outside the EU.

For more information contact us on 045 432382 or info@bnsolicitors.ie

Should I Make A Will?

Making a Will is one of the most important documents you will create in a lifetime. A Will enables you to choose how your assets will be divided on your death. As a result you can provide accurately for your loved ones. If you die without a Will, the Succession Act will dictates what happens your estate and where your assets go. More often than not, this is not what someone would wish to happen.

In addition another benefit of making a Will is that it allows you to arrange for the administration of your estate in a tax efficient manner. The taxation system can be quite complicated and poor estate planning can lead to increased taxes being payable by beneficiaries when your estate is being administered.
Wills are particularly important if you have children less than 18 years of age. A properly drafted Will enables you appoint Trustees who will hold your assets on behalf of those children until they reach an appropriate age [possibly 23 or 25]. Likewise, if any of your beneficiaries are incapacitated and unable to manage an inheritance, properly appointed Trustees can hold the asset for the beneficiaries benefit.

Always remember that a Will only takes effect when you pass away and you are free to amend or change your Will as many times as you like during your lifetime. By making a Will you are in charge and you decide what is to happen your estate upon your death and with proper estate planning you can minimise any potential tax implications upon your beneficiaries.

It is important you consult with a Solicitor to ensure the Will is drafted accurately and in accordance with established legislation in this country. The consultation should not take too long and it is time well spent!

For more information contact us on 045 432382 or info@bnsolicitors.ie

Whistleblowers - how does the law protect you?

The provisions of the Protected Disclosures Act 2014 protect whistleblowers. An application can be made to the Circuit Court to protect your employment rights if they to be affected by your disclosure.

However there are a number of provisions in the Act which have to be borne in mind when seeking the protection of the Court through legal proceedings. The “relevant information” that is disclosed must ,in the reasonable belief of the worker, show one or more relevant wrongdoings and have come to the attention of the worker in connection with his/her employment.

Section 5 (3) of the Act defines eight acts, which are deemed to be relevant wrongdoings. In the vast majority of disclosures a Court will normally seek, at the outset of any application for protection , to determine whether the disclosure relates to whether :

  1. An offence (i.e. a criminal offence) is being or likely to be committed; Or/
  2. The health or safety of any individual has been, is being or is likely to be endangered.

The motivation for making the disclosure is not relevant and in legal proceedings a disclosure is presumed to be a protected disclosure until the contrary is proven.

For more information contact us on 045 432382 or info@bnsolicitors.ie

What amounts to bullying at work?

In the Ruffley case  [in which Burns Nowlan acted on behalf of the employee] the Supreme Court ultimately held that a breach of fair procedures does not, in and of itself, constitute “bullying”. The Court stated that it was important “not to blur the distinction” between a claim for breach of procedures and a claim of bullying, noting that while the “denial of fair procedures is never a trivial matter” it did not, in this case, amount to “undermining of human dignity“.

In order to succeed in a claim of bullying the conduct complained of must be repeated; amount to inappropriate behaviour; and undermine the employee’s dignity in the workplace.

Repeated: The conduct to be repeated in order in the test for bullying requires a “pattern of behaviour“, not a “number of incidents“.

Inappropriate:  “Inappropriate behaviour” means the behaviour complained must be inappropriate at a human level “not merely wrong

Undermine dignity at work: The conduct toqualify as undermining an individual’s right to dignity at work must be “both severe and normally offensive at a human level“.

NOTE: In the Ruffley case , although the decision of the High Court was ultimately overturned , the Supreme Court awarded the employee a portion of her High Court legal costs and made no order requring the return of a significant amount of the damages paid to the employee pending the finalisation of her appeal.

For more information contact us on 045 432382 or info@bnsolicitors.ie

5 Tips for Buying A Property

1. Know the Process

Buying a property [house or site] can be broken down as follows:

  1. Find the property you wish to purchase and pay a booking deposit to the Auctioneer.
  2. Before contracts are signed it is important you have your financing in place and have also had the property surveyed to your satisfaction.
  3. Contracts will then be signed and the balance deposit is paid. You should then insure the property.
  4. The closing date will have been set out in the Contract for Sale . You will need to pay all fees and outlay in advance such as Solicitors fees, Stamp Duty and Property Registration Authority fees.
  5. Once the purchase has completed your can move into your new home and the Solicitor will pay the Stamp Duty to the Revenue Commissioners and afterwards apply to the Property Registration Authority to have you registered as owner.

2. Finances First

Work out your budget and keep in mind that first time buyers can borrow up to 90% of the value of the home, second time buyers and everyone else can only borrow up to 80% of the value of the home. At the present time there is the Help To Buy Scheme which assists first time buyers with the deposit needed for a new home or apartment, up to 5% of the purchase price is potentially available but this is capped at €20,000.00 As well as the purchase price there are other costs ; Legal fees; Stamp Duty, Property Registration Authority , Surveyors fees; searchers fees. It is important you discuss these with your Solicitor at an early stage to avoid any unwelcome surprises down the line.

3. Instruct the Right Professionals

It is important you ensure you instruct a Solicitor who you can trust , but also who addresses all your concerns and explains the process to you from start to finish in simple language leaving you with no doubt as to how the system operates. This is what sets a quality professional service apart from a good professional service.  It is the elimination of stress and worry that can make a purchase of a property an enjoyable experience for you.

Never, ever, under estimate the importance of a surveyor, especially with second hand homes. A good surveyor will inspect the property on your behalf before you have committed to signing a contract and who will be the one to tell you of any nasty surprises you need to know about before you put pen to paper. Admittedly it’s an extra expense, but an expense well worth paying.

4. Patience

The time required to complete a purchase is quite often outside of your Solicitors hands as there are numerous parties involved in the entire process. Generally speaking a conveyancing transaction will complete in a matter of weeks and not months.

5. Enjoy It

By making the right choices, particularly with what is set out above, it’s highly probable that the process will be an enjoyable one free from the stress and anxiety many people fear it will be. There is nothing like the feeling of collecting keys to your new home, it’s something the average person will only do a couple of times in their lifetime. It’s important to enjoy it and enjoy the thoughts of the future you are going to make there. The weeks leading up to collecting your keys should be weeks where your only worries are what colours you will put on the walls or what furniture you want to buy, and not ones of worry and confusion. It can’t be stressed enough how important it is you instruct a Solicitor who will ensure this is going to be a positive experience and one you will enjoy.

For more information contact us on 045 432382 or info@bnsolicitors.ie

What can I do if the Insurance Company refuses my claim under my Business Interruption Policy?

This type of insurance cover normally forms part of your property insurance and when claiming you need to ensure that the cover is specifically for business interruption. The wording of the policy document is crucial in assessing whether you are entitled to claim. The cover can have several components relating to your business such as profits, extra expenses incurred and fixed costs.

If your Insurance Company disputes or denies your claim you should be entitled under the terms of the policy to refer the dispute to Arbitration. Burns Nowlan has been involved in many types of Arbitration involving Insurance Companies and is ready to help you immediately.

Of relevance in these type of cases is the judgment in Manor Park Homebuilders Limited  -v- AIG Europe (Ireland) Limited where McMahon, J. stated: “ The principle of uberrimae fidei, which applies to all insurance contracts imposes a heavy onus of disclosure on the insured …. the insured’s duty is balanced by a reciprocal duty on the insurer to make its own reasonable inquiries, to carry out all prudent investigations and to act at all times in a professional manner. In fact the onus to do this, because of its experience and expertise, lies primarily on the insurer.  ”  [our emphasis]  

Thus where a doubt arises as to the interpretation of a policy document the principle of uberrimae fidei should assist the policyholder in having a claim resolved in his/her favour.

           [ https://www.casemine.com/judgement/uk/5da052d94653d07dedfd5723 ]

For more information contact us on 045 432382 or info@bnsolicitors.ie

Who can apply to Court for a Protection, Safety or Barring Order?

All partners in an intimate relationship, whether living together or not, can apply to Court for a Protection or Safety Order under the provisions of the Domestic Violence Act 2018. However, to obtain a Barring Order however you must be cohabitating [ i.e. living] with your partner/spouse. If a Domestic Violence order is granted it makes it a criminal offence for a person to behave in a manner which puts an applicant in fear and can include communications by email/text or through social media.

The Act has widened the issues which must be taken into consideration by the Judge when deciding whether or not to grant an order and which include:

History of violence; Previous convictions; Coercive control / Psychological abuse; Financial control; Substance abuse; History of animal cruelty; Access to weapons.

New measures have been brought in to try to assist applicants during the application including:

  1. The Court can prohibit a self-represented abuser from cross-examining an applicant. Cross-examination may take place but only by a Solicitor/Barrister.
  2. Victims can bring a person to support them in Court.
  3. Evidence can be given by video link to avoid intimidation during the Court process.

For more information contact us on 045 432382 or info@bnsolicitors.ie

Booking Deposit – what does it mean?

Once you have agreed to buy a property an Auctioneer will normally ask for a booking deposit to be paid before a “Sale Agreed” / Sold” sign is put up. The payment made to the Auctioneer – normally no more than 2% of the purchase price – is deemed a booking deposit and the Solicitors for the owner(s) of the property will then be asked to issue contracts.

However, it is important to be aware that payment of a booking deposit does not create a binding contract to sell or buy. No binding agreement will exist until the contracts have been signed by both the Seller(s) and the Purchaser(s) , the contracts have been exchanged as between Solicitors and the balance of the 10% deposit paid in full.

A booking deposit is refundable if you decide not to proceed. Always ask for a receipt on payment.

For more information contact us on 045 432382 or info@bnsolicitors.ie