Areas of practice

Law Society Committees have provided guidance on a number of practice areas that may be affected by Covid-19.

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Access resources and information organised by practice area below. If you have any queries or feedback, please contact us.

Affidavits

The Society has been seeking a solution to the problem of swearing affidavits in the current public health crisis, and has put forward a specific legally researched and reasoned approach to the Superior Courts Rules Committee.

The Society proposes that the Superior Courts Rules should be amended, with other Courts following, to provide a method for swearing of affidavits (ideally also statutory declarations) through modern technological means along the general lines that have been followed in certain other progressive jurisdictions such as in the Canadian province of British Columbia.

Whether the Society’s proposal to the Superior Courts Rules Committee is compliant with the provisions of the governing law and with good practice is a matter for the Committee, on which the Society is represented, to decide. 

Anti-Money Laundering (AML)

Social distancing policies present new opportunities for identity theft while, at the same time, restricting the key fraud and crime prevention tool of face-to-face identity verification. Non-face-to-face instructions can be a red flag in day-to-day business but telephone and video instructions are suddenly the norm.

In recent weeks, the Society’s Policy and Public Affairs Department has developed guidance and compliance solutions to help solicitors navigate these challenges to enable business continuity. The objective is to facilitate risk management and AML continuity in firms, as much as is possible, while solicitors and staff adhere to social distancing rules.

Business law

Planning for Company General Meetings and Board Meetings

As the situation with Covid-19 continues to evolve, Irish companies may seek advice on conducting their upcoming AGMs and regular Board Meetings with full regard to public health guidelines and restrictions.

The Business Law Committee has prepared a guidance note on some of the precautionary measures that companies can take in the lead up to their AGM and when convening Directors' meetings.

eSignatures, Electronic Contracts and certain other Electronic Transactions

As enterprises are required to work remotely wherever possible, the Business Law Committee has prepared detailed guidance on eSignatures, electronic contracts and certain other electronic transactions. This helps corporate entities and their legal advisors who wish to execute and exchange contracts using electronic signatures, and also considers the electronic signing of deeds and certain other documents.

CRO update

The CRO has announced that it is not in a position to process submissions or answer queries at this time. It is not yet clear whether it will be possible to continue to make filings electronically and undertake searches. The President of the Law Society has written to the Minister for Business, Enterprise & Innovation, Heather Humphreys TD, seeking urgent clarification.

The CRO provided the following update on Wednesday 1 April 2020:

  1. Due to the restrictions put in place by the Government in response to the COVID-19 pandemic, the CRO Offices are closed.
  2. We are offering limited services to the public including company incorporations and receipt of charges.
  3. The company search facility www.cro.ie remains operational.
  4. The company online filing facility www.core.ie remains operational.
  5. Post to the Dublin Office will resume from 2 April 2020.
  6. All post will be date stamped on receipt and stored for processing when the Office re-opens.

In the meantime, the CRO has provided information on essential filing requirements.

Annual return filings

All annual returns due to be filed by any company between now and 30 June 2020 will be deemed to have been filed on time if all elements of the annual return are completed and filed by 30 June 2020.

In effect this allows companies that have an annual return date in March, April or May additional time to file their return and financial statements. The CRO has requested that all companies in a position to file annual returns as normal during this difficult period continue to do so.

Summary Approval Procedures (SAPs)

The CRO is introducing a new interim process to allow for the filing of Summary Approval Procedures (SAPs). These are manual documents that require wet signatures which are then normally delivered to the CRO by post.

The new process will allow for these signed manual documents and associated G1 to be scanned and emailed into the CRO using the following address: saps@dbei.gov.ie.

Documents must be emailed to this address only. The only documents that will be accepted into this email address are Summary Approval Procedure (SAP) declarations for SAP 203, 204, 205 and 206s and the associated Special Resolution (G1P or GM1) for that declaration, if it has not already been filed with the CRO.

The presenter must also give authorisation for payment for the form from a customer account only. This can be done by attaching a separate letter giving the CRO authorisation to deduct the fee from a specific customer account or by filling out and attaching a Payment Authorisation Form (PAF) from the assigned PAF book. Please do not attach any other type of form as they will not be accepted.

Business supports

Corporate clients may seek guidance regarding the measures available to support businesses impacted by Covid-19.

The Department of Business, Enterprise & Innovation (DBEI) has introduced a number of other measures to support businesses impacted by the pandemic. Further information and a full list of supports can be found at the DBEI website.

Conveyancing

The Conveyancing Committee has issued updated guidance and answered common questions from practitioners in the President's Bulletin of 1 April.

Earlier guidance was issued in the President's Bulletin of 19 March.

Revenue stamping

Revenue has recently confirmed that, while phone services have been suspended indefinitely, electronic submissions continue to be processed and dealt with. Revenue will advise when telephone services resume however, in the meantime, they recommend that members consult the Stamp Duty pages on www.revenue.ie to resolve their queries.

Revenue staff continue to open and scan post albeit on a weekly rather than daily basis. To ensure delivery of the query and to avoid potential delays in response times, Revenue recommends the use of “My Enquiries” as the most secure and efficient means of contact. Practitioners can also contact Revenue electronically at stampduty@revenue.ie or through RFTS.

Property Registration Authority (PRA)

The Society continues to liaise with the Property Registration Authority (PRA) on behalf of the profession. The PRA recently advised as follows:

  • The Authority anticipates that all applications in relation to registered title lodged up to and including 20 April 2020 will have been recorded on their system and show up on searches by close of business on Tuesday 21 April 2020.
  • All such applications received after close of business on 27 March up to 20 April 2020 will have priority from 20 April 2020.
  • The Authority has indicated, however, that it will take longer to address the backlog in the Registry of Deeds for operational reasons. The backlog on 21 April 2020 was at 12 days and the PRA is working to bring this down.
  • Copy instruments will be provided for urgent closings. The PRA has indicated that they will not simply be provided on request. Applications for copy instruments will only be processed where it is shown that the application falls within the definition of 'legal services necessary to support essential services and vulnerable people' as provided in the ‘List of Essential Service Providers Under New Public Health Guidelines’, published on 28 March by The Department of the Taoiseach. When dealing with requests to process essential copy instrument applications, the PRA states that each application will be assessed on its merits, taking into consideration the purpose to be served by the transaction and the urgency of the situation. The Society is reverting to the PRA for further discussion on this matter and there will be a further update in due course.
  • Official copy folios and file plans are not available. The Society is in discussion with the PRA on whether a print-out of a folio can be relied on and there will be a further update in due course.
  • It had been reported to the Society that it is not currently possible for law searchers to conduct manual searches on pre-1970 Registry of Deeds title in the PRA. The Society had enquired whether, in circumstances where a sale could not be closed without such a search, it would be possible to have the search carried out. The PRA indicated that an applicant for such a search will be required to show that the search falls within the definition of 'legal services necessary to support essential services and vulnerable people'. If someone wishes to make a case for conducting the search they should communicate initially through the PRA mailbox at info@prai.ie. The case will be referred for a decision and the applicant will be informed as soon as that decision has been made. It was also confirmed that any such search would need to be conducted by Registry of Deeds staff, rather than law searchers, as their offices are closed to the public.

The PRA arrangements for returning any deeds from the Registry of Deeds to solicitors are as follows:

  • If a lodging solicitor is a member of the DX community, the PRA will return the deed through the DX on completion.
  • If this is not the case, then it will be sent through ordinary An Post post. If an application is rejected, then the deed is returned by registered post. 
  • In relation to deeds that were lodged by hand prior to the lockdown, the original receipt may be sent in, requesting the PRA to post out the deed.
  • There is no access arrangement for collection.

The Authority's latest update on service levels, dated 16 May, is published on the homepage of its website, www.prai.ie.

Drawdown of mortgage funds

Members dealing with conveyancing transactions have raised issues that they and their clients are encountering problems in getting loan funds released by lenders on some approved loans even though all the usual pre-drawdown requirements are in place. This is happening at a very late stage in the process, at a time when the clients are already committed to contract, and it puts them at risk of losing their deposits.

These reports have been borne out by the Banking and Payments Federation Ireland (BPFI) announcement on 20 April, which discloses that lenders are now carrying out Covid-19 checks on borrowers after drawdown of loans have been requested by solicitors to close purchases but before the lenders release the loan funds. 

The above situation highlights the importance of continuing to utilise the Conveyancing Committee’s recommended form of 'Subject to loan clause' contained in its Practice Note of June 2009.

Criminal Law

Criminal legal aid update

Practitioners will be aware that a number of cases listed for trial from 12 March to 10 June have been adjourned. There will be a considerable delay in listing these cases. The Society has engaged with the Department of Justice & Equality seeking to alleviate the substantial cash-flow challenge that this presents for criminal law practitioners.

I am pleased to report that the Department will pay a one day hearing (Junior Counsel) fee in respect of all trials and hearings in the Circuit Court, Central Criminal Court or Special Criminal Court which have been listed from 12 March 2020 to 10 June 2020 and which have now been adjourned due to Covid-I9.

In order for claims to be processed, they must be accompanied by a completed LA8 form. The Courts Service has advised that, in the current situation, the Presiding Judge in each court will adjourn all trials to a future date and nominate a member of staff who will deal with all queries relating to LA8 forms with contact details for phone and email contact being provided.

Practitioners should ensure that the LA8 form is then signed by both solicitor (and counsel where appropriate), scanned and returned to the relevant Court Office by email. That Office will send the completed form to the Department's Financial Shared Services (FSS) as quickly as possible.

Irish Prison Service arrangements

The Irish Prison Service has been implementing measures to protect prisoners in custody during the pandemic. The Governor of Operations, Ms Kathy Hoctor, has sent a letter for interested Law Society members outlining the steps taken to date, and arrangements to ensure continuity of service in the coming weeks.

The Service has requested that practitioners not call in person to visit a client in prison unless absolutely necessary. Access to video link professional visits are available in all closed prisons, although there is of course pressure on this service. For members who have not used the Irish Prison Service's video link resource before, a useful guide is available below.

The Service has published information on the procedures that it intends to follow regarding visitors to prisons.

Employment law

The Employment Law Committee of the Law Society has produced guidance and frequently asked questions (FAQs) on business disruption, lay-off, and short time arrangements.

Consultation on remote hearings

The Workplace Relations Commission (WRC) has published a Consultation Paper on Remote Hearings and Written Submissions.

Extension of Emergency Legislation relating to certain redundancy provisions

The Government has decided to extend the suspension of redundancy provisions relating to temporary lay-off and short-time work which arose as a result of Covid-19 until 10 August.

For more information on this measure, see the Gov.ie website.

Family Law

The Family and Child Law Committee of the Law Society issued guidelines in March to assist practitioners and parents. The Committee has updated these guidelines to address issues which have evolved since then, and reflect the practice directions issued by the Chief Justice and Presidents of the Supreme Court, High Court, Court of Appeal, Circuit Court and District Court.

Practitioners should check the Courts Service website on a regular basis to see updates regarding court sittings and adjournments. Practitioners will appreciate that the following guidelines are intended to constitute best practice guidelines rather than specific client advice: 

Submitting PIAB applications online where no medical report has been received

PIAB has introduced interim arrangements to facilitate online applications without a medical report.

Wills and probate

The President's Bulletin of 22 March has detailed guidance on drafting and executing wills under restrictions imposed by the Coronavirus.

Probate Office notice

The Courts Service has published a notice regarding business continuity measures at the Probate Office. The Office remains open for the lodgement of all applications and, will resume issuing Grants of Probate and Letters of Administration from 16 April.

Solicitors who wish to issue Caveats must ensure that they are posted, sent by DX or lodged in the drop box in Phoenix House, Smithfield the day before the Grant issues. Solicitors must ensure that the appropriate fee note is attached to the Caveat.

For further information, and contact details for other queries, visit the Courts Service website.