BREXIT IMPLICATIONS A KEY THEME AT THE ‘PROFESSIONAL NEGLIGENCE LAWYERS ASSOCIATION’ ANNUAL CONFERENCE
The annual Professional Negligence Lawyers Association (PNLA) conference took place on September 26th at Stephens Green, Hibernian Club, Dublin City Centre. The one-day conference was aimed at lawyers and professionals such as accountants, engineers and architects, seeking an update on professional negligence and liability law and practice. The conference addressed topics such as the legal implications of Brexit for businesses, the claims culture in Ireland and the resurgence of the construction industry.
Holmes O’ Malley Sexton sponsored and supported the event for the second year in a row. Harry Fehily, Managing Partner with the firm gave the opening address. Mr. Fehily has extensive experience of advising clients across a range of contentious and non-contentious matters with an emphasis on commercial litigation, professional negligence, property related disputes and shareholders’ disputes.
The legal implications of Brexit for professionals was an obvious topic to be discussed, but we also heard from leading legal and insurance professionals on current trends and future forecasts.
As the construction industry is enjoying a strong resurgence thanks to the current buoyant Irish economy, we had a particular emphasis on this industry. With increased opportunities in this sector, comes increased potential for professional negligence cases and we need to be prepared.
Harry FehilyManaging Partner
Mr. Justice Gerard Hogan, Advocate General, European Court of Justice, chaired the conference. In recent months Mr. Justice Hogan, who is a former High Court Judge and who has been in his position in Brussels since 2018, has been very vocal on the implications of Brexit for the legal profession given the centuries-long ties between the Irish and English legal system, and his deep insights into this topic at the conference were very valuable to delegates.
As the Brexit deadline draws closer, the impact for the Irish legal system will be considerable and remains unpredictable, depending on the ultimate form that Brexit will take. Irish legal practitioners may over time have to react to the pressure for codification in large areas of private law presently covered by traditional common law rules and case-law and existing novel legislative measures such as the EU Unfair Contract Terms Directive, which will become even more critical in areas such as contract law or banking law.
The scope and pace of this change could be significant for those dealing with the corpus of CJEU jurisprudence in a range of areas from family law to European Arrest Warrants to copyright. Those who respond most effectively to the new post-Brexit landscape will inevitably manage their risk more successfully than those who do not look to adapt.
The magnitude of change, post-Brexit, to the fabric and structure of our legal system could well be significant in the absence of the United Kingdom and all practitioners might well wish to reflect on this for their own practice areas.
Mr Justice Hogan
Michael Carrigan, Consultant Solicitor, Holmes O’Malley Sexton addressed the conference on the topic of ‘The role of the independent expert solicitor in professional negligence cases.’ Michael specialises in commercial property, professional negligence and dispute resolution.
The question of whether Ireland currently has a claims culture problem was raised by Rossa Fanning, Senior Counsel practising in Dublin in the field of civil and commercial litigation. Mr. Fanning noted that litigants have a constitutional right of access to the courts and that when the question of a ‘claims culture’ is raised, it typically relates to those litigants whose decision to claim – whether they have a good or bad case – is driven by economic incentives.
Mr. Fanning highlighted that the process of seeking financial compensation for a wrong done to a person is not something that should attract criticism in and of itself. Instead, he suggested that the discussion around a ‘claims culture’ often centres around a subjective ‘I know it when I see it’ test whereas, in Mr. Fanning’s view, almost all of the patterns that we may be uncomfortable about in litigation can be explained through the prism of economic incentives.
Whilst Mr. Fanning suggests that care should be taken when considering how to effect changes to litigation behaviour (given the risk of reducing some of what is perceived as the ‘right’ litigation alongside what we regard as the ‘wrong’ litigation) as well as pointing out that there is no single answer to tackling the issue, he has suggested a range of suggestions which might be usefully explored.
He has suggested that we could require a minimum financial investment on the part of plaintiffs themselves in funding their own litigation or the possibility of requiring plaintiffs to provide security for costs or source ATE costs insurance which would significantly help defendants in recovering their costs in spurious cases. He also advocates the possibility of simplifying the process for defendants to recover costs from plaintiffs when proceedings are successfully defended. There is also a case to be made for reform of the law to facilitate prosecution of those associated with the promotion of dishonest claims.
Mr. Fanning believes that there could also be an increased onus on financially penalising lawyers who wastefully prosecute cases with no reasonable basis of success. Finally, he also considers that insurers could consider investing more in the defence of cases and the enforcement of costs orders following the successful defence of cases which would serve to change perceptions on the part of plaintiffs. Overall, he endorses a recalibration of the system, not least to vindicate the constitutional rights of defendants whilst bearing in mind the beneficial effect of tort law in bringing about improvements in safety and care.
Also speaking at the conference were a selection of eminent speakers, drawn from a wide range of perspectives and disciplines, each of whom provided expertise and insights on industry developments, best international practices and future trends. Speakers included; Simon Wilton, Junior Counsel, Hailsham Chambers; Kellie Smith, Barrister at Law; Declan O’Rourke, General Manager, AIG Ireland; Damian Kilpatrick, Managing Director, Aon Ireland and Michael Davis, Director of Financial & Professional Services, Aon Ireland; Tony Reddy, Director, Reddy Architecture + Urbanism.
For further information on the Conference please visit www.pnla.org.uk.
ABOUT THE PROFESSIONAL NEGLIGENCE AWARENESS CONFERENCE
This PNLA annual conference is suitable for lawyers and other professionals seeking an update on professional negligence and liability law and practice. Now in its fourth year, speakers drawn from a range of perspectives provided guidance and insights on recent developments and trends moving forward.
Speakers on the day included, Host, Harry Fehily, Managing Partner, Holmes O’Malley Sexton, Conference Chair, Mr. Justice Gerard Hogan, Advocate General, European Court of Justice, Rossa Fanning, Senior Counsel, ‘Does Ireland have a claims culture problem?’, Declan O’Rourke, General Manager, Ireland, AIG Europe DAC, ‘General financial lines market update’, Kelley Smith, Barrister at Law, ‘Professional negligence update’, Simon Wilton, Junior Counsel, Hailsham Chambers, ‘The England and Wales Perspective’ , Damian Kilpatrick, Managing Director, AIG Ireland and Michael Davis, Director of Financial & Professional Services, Aon Ireland, ‘Markets Update’, Michael Carrigan, Consultant Solicitor, Holmes O’Malley Sexton, ‘The role of the solicitor in expert cases in professional negligence cases’, Tony Reddy, Director, Reddy Architecture + Urbanism, ‘The Role of the Expert Architect in Professional Negligence Cases’.