Lynch and Partners Solicitors

Seek Justice…on Time!

lynchandpartnersblog — Wed, 12 Sep 2012 14:55:49 +0000

The Statute of Limitations is the length of time a person has to make a claim after an incident that causes damage or harm. Once the time has passed an action can no longer be brought. The logic is simple and grounded in common sense principles: after a certain length of time it is impossible to get accurate evidence – be it witnesses, people’s recollection etc. and the threat of legal action cannot hang over a person for an indefinite time. The legal time limits vary depending on the area of law, for example a personal injury claim has to be made within two years; you have three years for a product liability claim; six years for a breach of contract claim; and so on. The Statute of Limitations may also work negatively against someone, for example with squatter’s rights after a certain time period – 12 years, or 30 against the State – a person may lose their land or property to a squatter who has been in possession of it for this length of time.

Generally, if a person is outside the limitation period they cannot take an action. But as with life, there are always exceptions. The big one is the ‘date of knowledge’ which extends the time until you know or ought to have known that you had a case.

Date of Knowledge

claim has to be made within two years; three years for a product liability claim, six years for a breach of contract claim. However, the ‘date of knowledge’ can apply, mainly in medical negligence cases, where a person is not aware of the injury at the time it occurs.

The Statute of Limitations (Amendment) Act 1991 introduced the ‘date of knowledge’ for personal injury cases. The date of knowledge applies when the date the wrong/injury takes place differs from the date the wrong/injury is discovered. This means that in situations where the injury may not be obvious at first, the reason for the injury may not be known or the person responsible for the injury or damage is unknown, the time limit for actions does not begin until this information becomes known.

Recent example

Symphysiotomy

1,500 Irish women were victims of symphysiotomy between 1944 and 1992. Women who had a symphysiotomy suffered permanent damage as a result and endured a life of pain and discomfort. Many of the women were not aware that they had a symphysiotomy and may have only become aware of it many years later. The Organisation for Survivors of Symphysiotomy, and many TDs are calling for an amendment to the Statute of Limitations so that survivors of symphysiotomy can seek compensation and damages from the State.

Stopping the Clock

It can be more difficult to know when you have a case where you are dealing with another area of law, outside of medical negligence/personal injury. Does it the time start to run when it happened and you have no damage or is it when the damage occurred? A lot of the case law now says that you cannot sue until you know you have damage. In cases where you have concealment or fraud by a professional, the clock starts to run when you find out about the concealment or fraud. In the case of a minor the clock starts to tick when the child is 18 years of age. The Court may decide, in some cases, that if a person has psychological difficulties arising from the damage the clock does not start to tick until the person is capable of taking a case.

ADR (Alternative Dispute Resolution)

The option of resolving disputes out of Court is now becoming a big issue because of the cost, the time and the uncertainty of litigation. Clients are well advised to consider mediation or other forms of alternative dispute mechanisms as a viable option to a fully contested Court hearing.

Contact Us

It is very important to contact us immediately when your difficulty or injury occurs, or as soon as you have knowledge of your injury, to ensure your case is not affected by the Statute of Limitations. Contact John M. Lynch, Managing Partner, at john@lynchsolicitors.ie or telephone 052-6124344 or Freephone 1800 750 850.

The material contained in this article is provided for general information purposes only. We advise you to seek specific advice from us about any legal decision or course of action.

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Irish Patients wait for answers after defective ventilation devices recalled

lynchandpartnersblog — Fri, 17 Aug 2012 11:51:53 +0000

Covidien Plc, a medical device company based in Dublin, recalled up to 330,000 surgical ventilation devices on 18^th July 2012. The devices, called the cuffed Shiley 8LPC, 8FEN tracheostomy tubes, were used during surgery to create an airway and pathway to remove fluid from the windpipe (trachea) and lungs. The defective tubes were manufactured between 1^st October 2009 and 26^th June 2012 and were recalled after it emerged that a major defect with the devices could lead to serious health problems and even death. It is believed that up to 1,000 devices were manufactured in Ireland with the majority manufactured in Mexico, however the tubes were also imported into Ireland. Covidien has claimed that only 34,000 of the 330,000 tubes remain in use.

On announcing the recall Covidien Plc said; “Customers are instructed to return all Shiley 8LPC and 8FEN tracheostomy tubes from the affected lots. If one of the recalled tubes is already in use in a patient, the Company recommends that the tube be replaced as soon as clinically appropriate as determined by the patient’s physician. If the physician advises leaving the tracheostomy tube in place, the Company strongly encourages that the frequency of direct patient observation be increased.” However, on 23^rd July 2012 in it’s Urgent Field Safety Notice Covidien stated; “We expect to have the Shiley 8LPC, 8FEN, replacement product available in our region within approximately two months.”, but they did not determine specifically what, if any, alternative product was available in the meantime should the Shiley tubes need to be removed immediately.

Since the recall the Irish Medicines Board has yet to provide guidelines or recommendations to those affected by the recall while the US Food and Drug Administration issued a safety alert stating; “Healthcare professionals and patients are encouraged to report adverse events or side effects related to the use of these products to the FDA’s MedWatch Safety Information and Adverse Event Reporting Program.”

Contact Us

Lynch and Partners specialises in product liability and recall cases. If you think you might be affected by recall please contact Gillian O’Mahony at gilliano@lynchandpartners.com or telephone 052-6124344 or Freephone 1800 750 850.

The material contained in this article is provided for general information purposes only. We advise you to seek specific advice from us about any legal decision or course of action.

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Ulster Bank IT Failure – Your Situation when the penny dropped!

lynchandpartnersblog — Wed, 15 Aug 2012 12:27:47 +0000

It is estimated that between 500,000 and 600,000 Ulster Bank customers were affected in Ireland by the recent computer glitch. Of course, this problem concerns the entire RBS Group and has had an impact on many millions of people in the UK also. People have been affected in a wide and varying range of ways, from people’s wages failing to register on their accounts, to direct debits not being taken, to being unable to withdraw funds all the way up to property and other major business transactions being delayed. The Bank is stating that the problem was caused when maintenance on IT systems in Edinburgh disrupted the regular processing of overnight transactions. It took time to resolve this problem which, in turn, created a significant backlog so many account balances were incorrect.

Compensation

A contractual relationship exists with Ulster Bank and its customers and anyone who has suffered a loss as a result of their error is entitled to be put back in the position which they would have been in if the error had not occurred in the first place. Jim Brown, Chief Executive of Ulster Bank has stated that they have “made a firm commitment that no customer will be out of pocket as a result of this issue”. Any fees charged or incurred should be refunded to customers automatically, but out of pocket losses should also be refunded. There is also the important issue of compensation for the stress and inconvenience that people have suffered from not being able to access their funds. Some people have suffered a huge amount over the last few weeks and through no fault of their own.

The Courts have given many judgments on whether or not people are entitled to claim compensation or damages as a result of a breach of contract case. The majority of the case law in this area, where damages for mental distress is awarded, focuses on where the contract is providing entertainment and enjoyment. In contrast to this the Courts have denied recovery of damages in respect of mental distress where the breach of contract concerned a contract for sale of land.

The Financial Services Ombudsman however may have a different view and may be of the opinion that compensation should be awarded.

Making a claim

In making any initial claim the first port of call will be to Ulster Bank itself. Lynch and Partners have many years of experience in assisting people with similar claims and can assist you in setting out your claim. You would firstly be notifying the bank of any out of pocket expenses you may have as a result of the computer problem and of any stress and inconvenience you suffered as a result. As it is still at the early stages many people may not yet be fully aware of the full extent of their loss. It is reported that the Bank itself will formulate a package of compensation for it’s customers, however no details have been released to date.

Financial Services Ombudsman

When you have followed the internal complaints procedures of your financial service provider and you are not satisfied with the outcome the next step is to refer the matter to the Financial Services Ombudsman who may investigate the complaint.

The Ombudsman has an independent function to deal with complaints which are made by people concerning:

The provision of a financial service
An offer to provide a financial service
Failure to provide a particular financial service that has been requested

The Ombudsman will first of all look for a final response from the Bank and if the customer is not satisfied with the Banks final response he will assess the complaint and the option of mediation will be offered to both parties by the Ombudsman as a means of resolving the matter. If mediation is not availed of or is unsuccessful then a formal investigation of the complaint by the Ombudsman will begin.

In the course of reviewing the evidence the Ombudsman will consider whether an oral hearing is necessary. If an oral hearing is held then the oral evidence given under oath at that hearing will be reviewed together with the documentary evidence and a Finding will be issued to both parties.

Where an oral hearing is not deemed to be necessary a Finding will issue to both parties after all the evidence has been reviewed in full.

All complaints are dealt with individually on a case by case basis and any financial package offered to the customer would be considered by the Ombudsman in examining the case.

Powers of the Ombudsman

The Ombudsman can direct the service provider to do one or more of the following:

Rectify or change the conduct complained of or its consequences
Provide reasons or explanation for that conduct
Change that practice
Pay compensation up to a maximum of €250,000
Take any other lawful action

It is important to note however that the Ombudsman deals with matters based on compensation to the complainant and not based on penalising the financial institution. The current Ombudsman, William Prasifka, has however stated publicly that he believes generally that people are entitled to something to compensate for the stress and inconvenience of recent events and it is likely that this will be reflected in any cases he may deal with. In this regard he has mentioned general figures of up to €500 in cases where, for example, cheques were not deposited and €850 where people relied on misinformation given by the banks but these are general figures and it remains to be seen what level of damages will be recommended in reality.

Finding of the Financial Services Ombudsman

The Finding of the Financial Services Ombudsman is legally binding, subject only to appeal by either Ulster Bank or its customer to the High Court within 21 days of the finding.

Contact Us

For further information and advice contact Gillian O’Mahony, Senior Associate Solicitor, at gilliano@lynchandpartners.com or telephone 052-6124344 or FreePhone 1800 750 850.

The material contained in this article is provided for general information purposes only. We advise you to seek specific advice from us about any legal decision or course of action.

Your Monthly Review – DePuy Deadline, Symphysiotomy, Family Law Courts Reform

lynchandpartnersblog — Wed, 08 Aug 2012 14:11:30 +0000

In today’s blog I will review the topics we discussed with you over the past few weeks – the DePuy Hip Implant Recall, Symphysiotomy and the proposed reform of our Family Law courts structure.

DePuy Hip Implant Recall – Deadline for Lodging Claims

With almost two years now we have been updating you on the DePuy hip implant recall. You may have read our articles and blogs, heard us on the radio, attended our International DePuy hip implant recall conference in March 2011 or seen us on Prime Time’s “out on a limb” programme in November 2011. We have covered the various symptoms people with faulty DePuy implants may experience such as continuing hip, groin, leg or low-back pain or audible noises coming from the device; we have discussed concerns about metallosis, which is metal ions being released into the blood and urine due to wear and tear of the device; we have updated you on new findings which show metal-on-metal implants should not be on the market. At this point we would like to remind DePuy patients that due to the legal time limits within which a person can lodge a claim there is now only a couple of weeks remaining for some of you affected by the DePuy Hip Recall to lodge a claim. Some of you affected by the recall may need to take precautionary action before the 25^th August 2012 to avoid the possibility of your case being out of time. There is a lot of work involved in lodging a claim so the sooner DePuy patients start the better.

Symphysiotomy

One of my recent blogs was about symphysiotomy, which became a routine surgical procedure for women experiencing an obstructed labour and was first advocated in 1597. They became less frequent in the late 19th century after the risk of maternal death. A symphysiotomy is a barbaric procedure where the obstetrician breaks a woman’s pelvis, cutting it into two to facilitate the delivery of her baby. This procedure was discontinued and replaced by a caesarean operation in the early part of the 20^th century in the developed world, except in Ireland and 1,500 Irish women were victims of symphysiotomy between 1944 and 1992.

These medical professionals abused their power by performing completely unnecessary and damaging procedures on women who were at their most vulnerable. In many cases the procedures were concealed, the women were not given information before or after the surgery and their consent was not sought or given. What is even more disturbing is that most of the women who underwent this procedure were not aware of it until several years later or until very recently. In a recent Supreme Court decision the five-judge court said the procedure should never have been carried out on the lady in question particularly when she was unconscious and under anaesthetic. She was awarded €325,000 in compensation.

Women who have had a symphysiotomy suffered permanent damage as a result and may be entitled to compensation. Many women have suffered a life of pain and discomfort because of incontinence, chronic pain, prolapsed organs, neurological and psychological problems.

Family Law Courts Structure Reform

In a blog a couple of weeks ago I discussed the Justice Ministers proposals to reform our Family Law courts structure to include humanising the courts system and ensuring that the judges dealing with family law cases have the skills and training to do so. The Minister for Justice, Alan Shatter also hopes that the new system “should be more user friendly and should make things less costly”. It is hoped that the new regime will prove less intimidating and a more welcoming environment for families in personal difficulties. The initiatives accepted by the Government will require the holding of a Constitutional Referendum and this have the potential to achieve significant changes to the courts structures which have remained largely unchanged since 1924.

For further information on the above areas please contact Gillian O’Mahony, Senior Associate Solicitor, at gilliano@lynchandpartners.com or telephone 052-6124344 or Freephone 1800 750 850.

The material contained in this article is provided for general information purposes only. We advise you to seek specific advice from us about any legal decision or course of action.

Deadline Looms for DePuy Hip Implant Recall Patients

lynchandpartnersblog — Wed, 01 Aug 2012 11:49:34 +0000

Many of you will have read our previous blogs about the DePuy hip implant recall. There is now only a FEW WEEKS remaining for a number of those affected by the recall to lodge a claim. 3,282 Irish patients were fitted with DePuy ASR hip implants. Experts have found “unequivocal evidence” of high failure rates and the ASR total hip implant has now been shown to have a failure rate of up to 50% within six years. In today’s blog I will remind you of the symptoms experienced by patients with faulty DePuy implants, the concerns surrounding metallosis and recent findings on metal-on-metal implants.

Symptoms

We represent many patients who received the faulty DePuy implants. Some patients have symptoms showing that the device they received has started to fail and have even had their revision surgery at this stage. Other patients, however, have no obvious symptoms at all.

Our experts have given us a list of symptoms, which show the failure of the device:

Continuing hip, groin, leg, or low-back pain;
Audible noises such as crunching, clicking, grinding, or metallic sounds coming from the ASR device;
The sensation that one`s hip is not “in place,” especially when standing up or starting to walk;
Loss of ability to perform physical activities, reduction in mobility and noticeable limp;
Swelling in the affected hip area or generalised hip pain, discomfort, pressure or tenderness and;
Loosening of the various components in the implant, necrosis or soft tissue damage and elevated cobalt and chromium levels in the blood due to exposure to metal.

We have identified common symptoms in patients with elevated blood ion levels:

Rashes, skin patches and skin discolouration;
Memory loss/difficulties;
Fatigue/insomnia;
Eyesight deterioration;
Changes in urine.

Despite recent research, there is still a lack of certainty as to the actual affect that these metal ions in the bloods can have.

Metallosis

One of the greatest concerns for patients is what is called Metallosis and its relatively unknown effects. The DePuy hip devices are metal-on-metal, therefore wear and tear caused by movement over time can lead to metal ions being released into the blood and urine. This can lead to a build-up of metal debris around the hip device itself. There is an alarming degree of ignorance out there about the effect metal on metal implants have on patients where there are high chromium or cobalt readings.

In 2007, the Lancet medical journal said that the recommended levels of ions in the body had not yet been clarified.

New Developments

In two recent medical reports published in the British Medical Journal and the Lancet Medical Journal experts new findings indicate a necessity for patients with Metal-on-Metal implants to be monitored at least once yearly.

The BMJ report advises that metal ions can seep in to the local tissue can cause reactions which can destroy both muscle and bone and in turn result in long term disability. They can also seep into the bloodstream and are toxic to the lymph nodes, spleen, liver, kidneys and other organs as they pass through the body. The report warns of potential link between the release of metal ions into the body and the risk of developing cancer. The report also advises that levels of cobalt in the blood in excess of 7μg/L should be investigated.

The Lancet Report recommends that MoM implants should no longer be used and for those patients who have received MoM implants it is recommended that clinical and radiological reviews be carried out at least once per year for the lifespan of the implant to monitor metal ion levels in the bloods and changes in the implant.

We represent a considerable amount of clients who have been directly affected by the DePuy hip implant recall. We hosted an International DePuy hip implant recall conference in March 2011 and featured on Prime Time’s “Out on a Limb” programme in November 2011. We continue to work closely with Patient Focus to continue to research and highlight the DePuy issue on behalf of clients.

In most cases the deadline for lodging a claim seeking compensation is fast approaching and those affected by the recall need to take precautionary action before the 25^th August 2012 to avoid the possibility of your case being out of time.

There is a lot of work involved in lodging a claim so the sooner DePuy patients start the better. Please contact John Lynch, Managing Partner, at john@lynchandpartners.com or telephone 052-6124344 or Freephone 1800 750 850.

The material contained in this article is provided for general information purposes only. We advise you to seek specific advice from us about any legal decision or course of action.

Justice Minister Proposes Reforms for Specialist Family Law Courts

lynchandpartnersblog — Wed, 25 Jul 2012 16:27:25 +0000

A major shakeup of the legal system has been drawn up by Justice Minister Alan Shatter and agreed by the Cabinet. As part of this system a new Family Court structure is proposed. The initiatives accepted by the Government will require the holding of a Constitutional Referendum, which means the physical structure of the courts will be changed. This is a welcome development as it has remained largely unchanged since 1924.

Current System

Our courts system does not have a dedicated family law division. The current family courts system is “fragmented” with the three courts — district, circuit, and high court — each dealing with separate family issues, ranging from maintenance applications and custody issues to child abductions. The management of the family courts system needs to be changed as the hearings are not frequent enough. There are long waiting times, both on the day waiting for the case to be heard and if it is not heard it may be months before it is scheduled again.

One of the legal hallmarks of Irish Family Law is that there is a great deal of judicial discretion. In addition, Family Law cases present particular and special challenges which mean that a Family Law case could, potentially, require a Court to make a wide of range of decisions regarding children, maintenance, family assets and finance, occupation of the family home, and so on. Family Law cases may be psychologically complex, requiring family assessment by social workers, psychiatrists or psychologists, particularly where there are children involved. Cases can also be financially complex, especially in what have come to be known as “ample resources” or “big money” divorce cases where the assets (financial and property) may involve millions of euro and where pension splitting may also be in question.

Under the current system, family law cases generally come before the District Court in the first instance. Family cases are usually left until the end of the court list, to give those concerned as much privacy as possible. However, as a result families can be left waiting in the courthouse as prisoners and other criminals are ushered in and out, which is not ideal as family law matters are sensitive.

New Proposals

The Justice Ministers proposals include humanising the courts system and ensuring that the judges dealing with family law cases have the skills and training to do so. Currently a judge, once appointed, can deal with a criminal case, a road traffic accident case, a family law case, which are very different cases. Family law cases, particularly as children are involved, require a very high degree of understanding, empathy, sensitivity and delicacy. Minister Shatter hopes that the new system “should be more user friendly and should make things less costly” with specialist judges and specialist courts. It is hoped that the new regime will be a less intimidating and a more welcoming environment for families in personal difficulties.

Judges

Under a reformed structure, the Justice Minister envisages entirely separate family courts, where only the parties involved, the judge and the court clerk are present. Judges with a specialisation in family law cases could preside over all proceedings, ensuring a level of compassion and understanding. Many judges deal very well with family cases, but not all judges are trained in the area.

It’s important the judiciary have special skills, so when individuals go to family court, they know there’s going to be a degree of consistency of approach.

Back up services

It is hoped that the new system would also have the necessary back-up, including welfare services that would conduct assessments and mediation services that would provide alternatives to courts.

Mediation – children

Mediation is now becoming more popular. Mediation is an alternative to confrontation; it attempts to get the people themselves to focus not on the personal issues, but to reach a compromise. In mediation the people involved make the decision whereas in the court the judge makes the decision. Mediation has huge benefits for children as both parents want the best for their children and it removes the stress of court. One of the major problems with our court system, in comparison to Canada and Australia, is that we don’t have a mediation system within our courts system, it is separate.

New Concept

The restricting of the Family Law Courts is not a new concept. Specifically designated Family Courts and trained judges were originally proposed in the 1996 Law Reform Commission Report on Family Courts. This report originally pointed out that: “Judges who deal with Family Law matters in Ireland are not by law required to have any special qualifications, training or experience in, or aptitude for, Family Law matters.” Since this report in 1996 there has been considerable and substantial growth of Family Law and there have also been large increases in the number of Family Law cases coming before the courts. This reform will, therefore, be very important and will hopefully modernise our court system to reflect the realities of society.

New System – Similarities to other Countries

The specifics of exactly what the Justice Minister is proposing are largely unknown. We do know that in March 2012 the Justice Minister visited the New South Wales Family Court in Australia where he discussed the workings of the Australian family court structure and its relevance to his commitment to establish an integrated Family Court in our jurisdiction. Following on from this visit he may decide to establish a dedicated Family Court structure similar to that which operates in Australia, where it is a separate entity with its own judges who are specially appointed for this work, as well as having distinctive procedures, personnel and appropriate support services to deal with Family Law matters. There is a comprehensive case management system and extensive support services such as counselling and mediation funded by the State.

First step towards Reform

Perhaps as a first step towards a less radical restructuring of the court system in relation to Family Law matters, Minister Shatter may, however, decide that it could be possible to make improvements to our existing system by creating a distinctive Family Law Division which would include District, Circuit and High Courts and would have significant improvements in resources in staff and ancillary services.

For further information please contact Gillian O’Mahony, Family Law Solicitor, at Lynch and Partners Solicitors in Clonmel Co. Tipperary, at gilliano@lynchandpartners.com or telephone 052-6124344 or Freephone 1800 750 850.

The material contained in this article is provided for general information purposes only. We advise you to seek specific advice from us about any legal decision or course of action.

Symphysiotomy – Violation at the most Vulnerable Time in a Woman’s Life

lynchandpartnersblog — Mon, 16 Jul 2012 13:51:46 +0000

1,500 Irish women were victims of symphysiotomy between 1944 and 1992. A symphysiotomy is a barbaric procedure where the obstetrician breaks a woman’s pelvis, cutting it into two to facilitate the delivery of her baby. This procedure was discontinued and replaced by a caesarean operation in the early part of the 20^th century in the developed world, except in Ireland.

These medical professionals abused their power by performing completely unnecessary and damaging procedures on women who were at their most vulnerable. The procedures were concealed, the women were not given information before or after the surgery and their consent was not sought or given.

Women who have had a symphysiotomy suffered permanent damage as a result. Many women have suffered a life of pain and discomfort because of incontinence, chronic pain, prolapsed organs, neurological and psychological problems. What is even more disturbing is that most of the women who underwent this procedure were not aware of it until several years later or until very recently.

Yesterday the Supreme Court upheld a High Court decision that a symphysiotomy carried out on an 18 year old in 1969 was “entirely unjustified and unwarranted”. The woman in this case did not know that she had a symphysiotomy until almost 33 years later when she heard a radio programme about it. She suffered chronic on-going pain, continuous back pain, incontinence and depression as a result of the symphysiotomy. The Supreme Court awarded compensation in the sum of €325,000.

If you have been a victim of this brutal form of birth intervention, which may have harmed you or your baby, you may be able to make a claim for compensation.

If you had a symphysiotomy proceedure please contact Gillian O’Mahony for further information, at gilliano@lynchandpartners.com or telephone 052-6124344 or Freephone 1800 750 850.

The material contained in this article is provided for general information purposes only. We advise you to seek specific advice from us about any legal decision or course of action.

The Personal Insolvency Bill – From Boom to Bust and Back?

lynchandpartnersblog — Fri, 29 Jun 2012 13:32:25 +0000

The Personal Insolvency Bill was published today. This legislation is a means by which those who are on the brink of financial ruin may be given a way out.

We are currently in the midst of what is essentially the Irish Great Depression. If we are to take measures to get ourselves back to a situation where we can recover from this a realistic approach has to be taken. The banks cannot continue to rely on the repayment of debts which people have no hope of ever paying and where negative equity is rife. This new deal will provide a mechanism whereby a realistic level of debt repayment could be achieved while at the same time assisting those who are struggling with an income which will ensure they have a reasonable standard of living. It should take the fear, which people currently have, out of dealing with debt and this will have positive knock on effects for the wellbeing of those in debt, for their families and for the larger community. It will allow people who have found themselves drowning in a sea of financial uncertainty to restart their lives and plan for their future.

The Bill will do this by affording struggling debtors the opportunity to write down their debt by spreading it over a six year period. The Bill also reforms the Bankruptcy Act 1988 and a significant new measure under the Bill is to reduce the bankruptcy period from 12 years to 3 (or in some cases 8) years, allowing people to wipe the slate clean and make a fresh start once this period has expired.

The Bill’s new proposals include a Debt Relief Certificate which will allow people with no assets or no income with debts of less than €20,000 to be written off, a Debt Settlement Agreement (DSA) which will cover loans with two or more creditors in the amount of €20,000 or more and a Personal Insolvency Agreement (PIA), which will apply specifically to mortgage holders for secured and unsecured debts of €20,000 to €3million. Borrowers will have to apply to insolvency agencies through companies such as the Money Advice and Budgeting Service (MABS). MABS may be the new State-run insolvency service to mediate between banks and borrowers.

All debt deals will be dealt with on a case by case basis and creditors, such as banks, will have to agree, but up to a quarter of all Irish mortgage debt could be written down under the new proposals. One of the most important factors at this stage however is for people to be aware of exactly what loan arrangements are in place with each lender and what powers your lender has to enforce these. In preparation for these new laws we have been assisting many clients in carrying out full audits to ensure all proper procedures were followed by the lender at the time the loan was entered into. Any errors on their part could prove to be useful in negotiating the debt downwards at a later stage.

Debt in Ireland has reached epidemic proportions and is crippling people across the board from all areas and backgrounds. These new measures have the potential to allow for a realistic solution so that people can start again to rebuild their lives and make contributions to economic recovery instead of only servicing debt.

It has become more than obvious that the present credit difficulties are here to stay for a considerable amount of time into the future. Therefore, all the strategies of postponing debt by deferring interest or capital payments are no longer a realistic approach. We have taken the view that it is now time to deal with debt management in the context of long-term debt with long-term solutions. With this in mind our strategy is twofold – firstly establish the amount of debt which you are capable of servicing and, secondly, put realistic strategies into place to deal with the balance.

For further information on debt management and the new measures in the Personal Insolvency Bill contact John Lynch, Managing Partner at Lynch and Partners, at john@lynchandpartners.com or telephone 052–612 4344 or Freephone 1800 750 850.

The material contained in this blog is provided for general information purposes only. We advise you to seek specific advice from us about any legal decision or course of action.

Should you be still trading?

lynchandpartnersblog — Wed, 30 May 2012 15:33:09 +0000

Insolvency is where a company is no longer able of pay its debts. When a company becomes insolvent there are a number of options available – receivership, liquidation or examinership. Liquidation is when the company ends and its assets are sold with the proceeds of sale used to pay off the creditors. The members will receive the balance after the costs and expenses of the liquidation have been paid. There are different types of liquidations including Creditors’ Liquidation, Compulsory Liquidation and a Members’ Liquidation. In today’s article I will discuss Creditors’ Liquidation with you.

Creditors’ Voluntary Winding Up

A creditors’ voluntary winding up involves the creditors (those who are owed money) of a company appointing a liquidator. A creditors’ voluntary winding up can arise in a number of ways. If a company is insolvent the members of the company can hold a meeting and pass an ordinary resolution for the winding up of the company. The members will appoint a liquidator and they will call a meeting of the creditors of the company on the same day or the day after their meeting. The company must publish notice of this creditor’s meeting in newspapers before the meeting taking place. At the creditor’s meeting they are informed of the position of the company and receive a statement of the accounts and liabilities of the company.

The creditors can agree with the liquidator appointed by the members or they can appoint their own liquidator. Once the creditors appoint the liquidator, and s/he consents, the winding up then becomes known as a creditors’ winding up. The creditors may also then appoint a Committee of Inspection whose purpose is to monitor the winding up and to decide the remuneration of the liquidator, which includes his costs, fees and expenses. The Committee of inspection is made up of nominees of both the creditors and the members. The liquidator will call various meetings of the members and creditors throughout the winding up of the company and present accounts of the company at these meetings. The company is considered to be dissolved within three months of the final accounts being presented to the Registrar of Companies.

A creditors’ voluntary winding up can also arise when liquidation begins as a members’ winding up. A members’ winding up comes about when both the members and the directors pass a resolution that the company is to be wound up. The directors must make a Statutory Declaration of Solvency where they state that the company is solvent and will be able to pay its debts within twelve months from the commencement of the winding up. This winding up becomes a creditors’ voluntary winding up when one fifth of the creditors (in number or value) apply to the Court to have the members winding up converted into a creditors winding up. The Court will grant this Order if it is satisfied that the company is unlikely to pay its debts within the time specified in the Declaration of Solvency.

The end result of this process is that the company no longer exits. The main areas of concern for the directors are where a Liquidator forms the opinion that the Directors acted dishonestly or recklessly. If this happens the Directors can be fixed with personal responsibility for the debts or the can be prevented from acting as Directors for a period of years. This is an area that needs to be at the forefront of peoples’ minds when they are operating the current climate where there is a very fine line between staying in business successfully or continuing to trade with the risk of exposing yourself to personal liability.

The loss of corporate protection is a very serious worry for someone who is fighting for survival!

For further information about winding up of companies contact John Lynch, Managing Partner at Lynch and Partners, at john@lynchandpartners.com or telephone 052-6124344 or Freephone 1800 750 850.

The material contained in this blog is provided for general information purposes only and does not amount to legal or other professional advice. While every care has been taken in the preparation of the information, we advise you to seek specific advice from us about any legal decision or course of action.

In Doubt about Your Health? Ask for a Second Opinion!

lynchandpartnersblog — Thu, 24 May 2012 10:20:07 +0000

Today my article will focus on medical negligence following a number of recent high profile cases and inquests. Medical negligence is essentially an act or omission by a health care professional which is below the accepted standard of care and which results in injury or death to a patient.

Medical negligence can happen due to a number of reasons including:

Diagnosis – misdiagnosis or delayed diagnosis
Treatment – i.e. errors in the medical treatment such as incorrect medication, surgical errors, exposure to infection (MRSA etc)
Disclosure – i.e. failure to inform the patient of the risks of the treatment of procedure

I will now give examples of medical negligence in the context of diagnosis and treatment by referring briefly to some cases.

Diagnosis – i.e. misdiagnosis or delayed diagnosis

In one case a patient died of a brain haemorrhage. He attended his GP several times before his death complaining of headaches. He was sent to casualty but was not admitted and the next day he was admitted again, unconscious, and died soon after. The High Court found that the GP was negligent because he did not take into account the man’s version of events and his detailed accounts of the seriousness of his symptoms. The Supreme Court also found in favour of the plaintiff, but on the grounds that where the casualty officer ignores and does not follow up on a referral letter, it is an “inherently defective” practice and is negligent.

Treatment – i.e. errors in the medical treatment such as incorrect medication, surgical errors, exposure to infection (MRSA etc)

In another case the Plaintiff’s husband had surgery to remove a tumour in his throat. On the second night after the surgery the tracheotomy tube was put out of place. By the time the airway passage was established the man was brain dead. The case was brought on the grounds that the surgeon allowed his patient to recover in ICU where there was no-one trained to replace a tracheotomy tube. The defendants disputed liability on principle of “general and approved practice”. The Court acknowledged that nurses in Ireland are not specially trained to change tubes of this type and that no negligence therefore arose on this point. However, he also noted that this was an emergency situation which required special training. The Court found that failure to have a person, nurse or doctor in the ICU who was trained in the replacement of a tracheotomy tube, under the circumstances, was an “inherent defect”. The surgeon was found guilty of negligence because the deceased would not have died if a trained person been present in ICU.

Cancer Misdiagnosis

The majority of people who undergo x-rays and blood tests for cancer in Ireland are correctly diagnosed. Early detection is vital as it enables timely medical treatment, and in many cases the patient can be cured. There are unfortunately many cancer sufferers who are misdiagnosed as not having cancer. Our experience in dealing with these cases shows that there are several reasons why a cancer misdiagnosis can occur – most of them as a result of human error or a lack of skill. A doctor may not respond appropriately when a patient presents displaying symptoms of cancer- there may be a failure to thoroughly examine or a failure to recognise the symptoms and signs of cancer. There may be a failure to refer to a cancer specialist or a failure to appropriately monitor a patient who has a family history of cancer. In a great number of cases that have come before the Courts it has been shown that laboratory results and scans are often misinterpreted by technicians too frequently.

Contact Us

If you, or a loved one, have suffered due to the negligence of a medical professional contact John M. Lynch at john@lynchandpartners.com or telephone us at 052-6124344 or Freephone 1800 750 850.