advices clients who are considering commercial lititation

Moloney & Associates, Solicitors, advices clients who are considering commercial lititation, debt collection or personal injury actions to be advised of the following changes in the monetary jurisdictions of the courts of Ireland.

The Courts and Civil Law (Miscellaneous Provisions) Act 2013 (Jurisdiction of District and Circuit Court) (Commencement) Order 2013 was signed by the Minister for Justice on the 18th December 2013.  This Order establishes the 3rd February 2014 as the commencement date for the new monetary jurisdictions of the civil courts.
 

From the 3rd February 2014, the following changes will take effect:

• The jurisdiction of the District Court will increase from €6,384 to €15,000;

• The jurisdiction of the Circuit Court will increase from €38,092 to €75,000 for non-personal injury actions; such as debt recovery actions, breach of contract etc.

• The jurisdiction of the  Circuit Court for personal injury actions will be restricted to €60,000;

• Where an action commenced in the High Court is remitted or transferred to the Circuit Court, the Circuit Court will have jurisdiction to award damages in excess of €60,000 for personal injury actions and in excess of €75,000 for all other actions.
The new jurisdiction limits will not affect proceedings instituted prior to the 3rd February 2014.


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The highlights of the Annual Review

The Injuries Board (formerly known as the Personal Injuries Assessment Board)recently published its Annual Review 2013.

By law, personal injury claims must go to the Injuries Board for assessment, regardless of whether the claimant has legal representation or not. There are only a few exceptions.

The board makes awards relating to motor, employer and public liability accidents without the need for litigation.

 The highlights of the Annual Review are as follows:-

·         Limerick had the largest number of claims (on a per capita basis)

·         10,656 awards were made totalling €243.5 million

·         the highest award made was €1.39m

·         average award was €22,847

·         motor liability claims accounted for 75% of claims (an increase of over 8%)

The average injury award for motor accidents was €21,730, for employer's liability €28,886 and public liability €25,120.

Of particular interest is that over one third of claimants still continue to reject the awards suggested by the Injuries Board at the end of the process preferring instead to seek higher awards through issuing court proceedings.

The Injuries Board also does not provide for legal costs (savein very limited circumstances) which means if a claimant is to engage a solicitor to protect his/her interest and progress the claim, the solicitors costs will need to be deducted from any Injuries Board award.

It is therefore unsurprising that a large proportion of claimants opt to pursue the matter through the courts where legal costs may be recovered separate to any award of damages. It is not unusual for a claimant to achieve 30-50% more in terms of compensation achieved in an out of court settlement after the Injuries Board process has concluded.

Moloney & Associates, Solicitors, offer a comprehensive personal injuries advice service, assisting our clients in making applications to the Injuries Board and offering advice on the merits and value of claims.

If you would like to discuss a possible claim, be it motor vehicle, a workplace accident or apublic liability claim then please contact us for a no obligation consultation at our offices here in Limerick City.

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Conveyancing services in Limerick – Part 2

In the meantime, you should instruct an Engineer to carry out a Survey on the property.  As well as confirming that the physical structure of the property is in order they should confirm that the Land Registry Maps are in order and that there are no un-authorised structures on the property and that there are no other issues as regards breaches of planning law/permissions and that there are no obvious breaches of the building regulations that you should be aware of.
Your ‘Letter of Loan Offer’ from your bank should now be at hand. You should ensure that all of the terms and conditions contained in the Letter of Loan Offer are correct and as agreed between you and your bank.  Your solicitor will provide you with legal advice on this document prior to you signing and returning same to your bank.You should ensure that you have complied with all of the ‘special conditions’ contained in the Letter of Loan Offer prior to signing contracts.  This will usually entail arranging a life policy and home insurance amongst other things.
When signing your contracts you will have to pay the balance of the 10% deposit.
YourSolicitors’ Fees, Outlay and Stamp Duty will now need to be paid to your solicitor.


Step 5:

Once contracts have been signed, your solicitor will then return the contracts to the vendors solicitors with the balance deposit and a booklet of further questions known as ‘Objections and Requisitions on Title’ to which the vendors’ solicitor must reply to.

Step 6:

Once the contracts have then been signed by the vendors and your balance deposit accepted a binding legal agreement is in place. Your solicitor will receive a signed copy of the contract.  The vendors’ solicitor will retain one copy for their file.  Neither party can pull out or change their mind at this point ! !


Step 7:

On the agreed closing date your solicitor will usually attend the offices of the vendors’ solicitors and finalise the sale by handing over the mortgage funds to the vendors solicitors in exchange for the title deeds.  This can also be done by post.  The vendors’ solicitor will then ring the auctioneer to confirm that the sale has closed and that you are entitled to collect the keys to the property from the auctioneers.

Step 8:

Your solicitor will then file your Stamp Duty return and make the Stamp Duty payment to the Revenue Commissioners.  Paperwork is then filed with the Property Registration Authority (formerly known as the Land Registry) registering the change of ownership together with the mortgage documents.

Once registration is completed the deeds will be returned by your solicitor to your bank.  Your bank will then hold the deeds until either you sell the property or pay off the mortgage.
Your solicitor will then write to you to confirm the transaction has successfully completed and enclose a copy of the paperwork from the Land Registry confirming that you are the new owner and further enclosing a copy of the letter from your bank confirming safe receipt of your title deeds.
This will provide you with peace of mind that everything was finalised as promised.

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Companies Act Limerick - 2

The first thing to attend to is however is for the company or its accountant to file all outstanding returns and accounts and to pay the late filing fee which is currently €100.00 A further  €3 accrues for every  day that the returns and accounts are not filed, although this is capped at a maximum of €1,200.00 per return. Late filing fees can therefore be quite high.  On receipt of same, and assuming the outstanding accounts and filings are in order, a director of the company or either its solicitor or accountant should write to the Companies Registration Office and request that the Companies Registration Office provide a ‘Letter of No Objection’. This is the first step in any successful restoration application.

In Re New Ad Advertising Company Limited, Laffoy J expressed the view that the Court has a very limited discretion to dispense with the requirement that outstanding returns be delivered to the Registrar of Companies in accordance with an order made pursuant to s. 12B(5). Laffoy J. stated that the legislative intent in enacting that requirement was to ensure that the striking-off mechanism as a deterrent against a breach of company law is not devalued. Laffoy J stated that it would be devalued, if a company could be restored to the register without the breach which gave rise to its striking-off being required to be remedied.

Once the ‘Letter of No Objection’ from the Companies Registration Office is at hand the next step is to draft the grounding affidavit, notice of motion and the petition.  These documents then have to be stamped and filed in the Central Office of the High Court, and a date for the hearing will be assigned.  Documents to be filed in the Central Office of the High Court must of course be filed in person which may entail the use of Town Agents for practitioners based outside of Dublin.

Practitioners should ask for a date at least a month to six weeks hence, for reasons to be outlined below.

Stamp duty totalling €182.00 will be incurred on these three documents together with Commissioner for Oaths costs associated with the grounding affidavit and its exhibits and also Town Agent Fees for those practitioners not based in Dublin.

The grounding affidavit should contain inter-alia paragraphs averring to the

1.Date of incorporation of the company
2.The objects of the company
3.The share capital of the company
4.A list of the directors
5.The reasons for the strike-off
6.The reasons why the company wishes to be restored to the Companies Register
7.Whether or not the company has continued to trade
8.An averment that neither the Minister for Finance nor the State has, either directly or indirectly, intermeddled in any of the assets of the company and that the company makes no claim against the Minister arising from the provisions of the State Property Act 1954.

9.An undertaking both on Petitioner’s behalf, and on behalf of the Company, to pay any and all outstanding taxes within one month of any Order to Restore the Company being made by this Honourable Court.


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Companies Act Limerick - 3

The grounding affidavit will also generally exhibit the following;

1.Copy Certificate of Incorporation
2.Copy Memorandum and Articles of Association
3.Print-off from CRO website showing the company as being struck-off
4.Copy Up-to-date filed Annual Returns
5.Copy Letter of No Objection from the Companies Registration Office

Once you have received back your filed copies you must serve a certified copy of the Petition, Notice of Motion and the Grounding Affidavit together with the exhibits thereto on the Revenue Commissioners, the Revenue Solicitors, the Minister for Finance, the Chief State Solicitors Office and the Companies Registration Office.

Assuming the documents are in order the Revenue Solicitors will communicate with the Revenue Commissioners who will then ordinarily issue a ‘Letter of No Objection’.  Practitioners should note this can take a number of weeks to happen in practice.  The Office of the Minister for Finance, if satisfied with the paperwork, will instruct the Chief State Solicitor’s Office to issue a ‘Letter of No Objection’ on its behalf, and again this can take a number of weeks.  Practitioners should note the Revenue Solicitors currently charge €530 to cover their legal expenses and the Chief State Solicitor’s Office charge €350 to cover their expenses in providing the ‘Letter of No Objection’.

A second affidavit exhibiting these two additional ‘Letters of No Objection’ must be sworn, stamped and filed prior to the hearing of the application and this is why it is prudent to allow at least a month if not slightly longer, so that these two letters can be obtained.  Otherwise you could be faced with seeking an adjournment while you wait for this paperwork to arrive which will obviously add to costs.

In the event that the statutory proofs are in order, the Judge will exercise his or her discretion as to whether the order should be granted.  On hearing the application, the Court may, if satisfied that it is just restore the Company to the register.

Assuming you are successful in your application you must take up the Order without delay and an office copy must be served on the Companies Registration Office within three months of the making of the order together with the €15 filing fee. If the Order is not delivered within this timeframe a fresh restoration application will be necessary.  Practitioners should be cognisant of this requirement.  All outstanding returns if not already filed should be submitted to the Registrar within one month of the making of the Order.  An office copy of the Order should also be sent to the Revenue Solicitors and the Chief State Solicitors Office so that they can close their respective files.  This is a procedural and not a statutory requirement.

The effect of restoration to the Companies Register is that the company shall be deemed to have continued in existence as if its name had not been struck off.

Practitioners should be cognisant, when advising a company, of the high costs and outlays that will be incurred in making a Company Restoration application in the High Court as outlined above.

The company will likely have good reason to want to be restored; for example the company may own property which the directors and shareholders may wish to sell and therefore a Company Restoration application makes financial sense.

An example of one such good reason can be seen in Re Eden Quay Investments Limited where the directors of a company struck-off some 18 years previously successfully applied to have the company restored.  The company held some 514,256 shares in Hibernian Transport Companies Ltd which were not worthless as had originally been thought and the Supreme Court held that the shareholders were entitled to share in a surplus of some IR£2.5m arising from the liquidation of Hibernian Transport Companies Ltd.

'Look It Up'

Legislation

Section 311 of the Companies Act 1963 as amended
Section 311(8) of the Companies Act 1963
Section 12B(3), Companies (Amendment) Act 1982
Section 882 of the Taxes Consolidation Act 1997

Case-Law

Re Eden Quay Investments Limited, The Irish Times, 12 April 1994
Hibernian Transport Companies Ltd (1994) 1 ILRM 48
New Ad Advertising Company Limited [2006] IEHC 19


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Moloney & Associates is a full service legal firm specialising

Moloney & Associates is a full service legal firm specialising in intellectual property withits’ offices located in Limerick City.  We are your ‘one-stop-shop’ for Trade Mark applications and advisory.

Trade Marks are a means by which a business identifies its’ goods or services and to help that business to differentiate its’ goods or services from the goods or services of competitors.  In other words a Trade Mark is a ‘brand identifier’.  The best way to protect a brand name, a logo or other distinctive features is via a Trade Mark registration. You will then be able to use your Trade Mark as a marketing tool so that customers can recognise your goods or services.

In order to register your brand you will need to come up with something that is distinctive, is not merely descriptive of your goods or services, something that doesn’t just  indicate its’ geographic origin or also importantly that it doesn’t already exist and belong to someone else ! !

Moloney & Associates will help protect your brand by means of a Trade Mark registration.    It will serve to protect, differentiate and add value to your business.  A Trade Mark is a valuable business asset that can be mortgaged, sold and also licensed.

A Trade Mark may consist of a business name, a design, a logo, letters, numerals or indeed the shape of the good amongst other things.  It is important to realise that just because you have registered your business name with the Companies Registration Office or registered a domain name you have no automatic protection.  To have automatic protection you must register the Trade Mark ! !

Brian Moloney, who is the Principal of the firm, is a qualified Irish and European Trade Mark and Design Attorney.  

Brian is authorised by the Irish Patents Office and registered with them as a Trade Mark Agent and is the only Trade Mark Agent practising in Limerick City.

The Register of Trade Mark Agents is kept by the Patents Office and can be viewed by copy and pasting the following link in to your browser.

  

http://www.patentsoffice.ie/en/trademark_agents_register.aspx

I am also authorised by the Office for Harmonization in the Internal Market (O.H.I.M.) which is the office of the European Union which deals with Trade Marks and Designs.  It is based in Alicante, Spain.  A European Trade Mark is referred to as a Community Trade Mark of C.T.M. for short.

It is the office where Community Trade Mark applications are filed and processed.

Moloney & Associates are your ‘one-stop-shop’ for Irish Trade Mark filings and advisory and also for European Trade Mark filings and advisory.  We also process Trade Mark filings internationally using the Madrid Protocol system.

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