Litigation


                                     
                                
 
There is a general principle of law that we all have a duty of care not to injure the people around us.  Where an accident occurs due to negligence, the rules of the law of tort are used to ascertain who is at fault. Damages are awarded to the injured party to compensate him for the loss he has suffered.  The process by which your claim is satisfied is known as Civil Litigation.  

Seamus Monaghan & Co, Solicitors will be happy to represent you should you find yourself involved in any of the following situations:

Road Traffic Accidents – The normal rules of the road govern liability on the roads, but if someone carries out a dangerous manoeuvre causing an accident, he is considered to have acted negligently and can be sued by the victim for compensation to cover any loss suffered.

Damage to Property – A person’s private property may be damaged by a third party either intentionally or negligently and again, any such loss suffered can be pursued through the civil courts to hold the wrong-doer liable and an award of compensation will be granted.

Accidents in the Workplace – Employers are obliged to provide a safe workplace and system of work for their employees.  When an accident at work occurs, it is likely that the employer has not maintained an appropriate standard of care for the safety of his employees and so will be held liable for any damage suffered by the employee.

Public Liability – The State have a duty to maintain the roads and footpaths in a safe condition.  The State may be found to be partially liable if an accident occurs where badly maintained roads are a contributing factor to the damage suffered.

Professional Negligence – If you employ a professional to carry out work for you, be it a doctor, solicitor, builder, mechanic, accountant or broker, and they carry out the work negligently, they may be liable to pay compensation to you for any loss suffered.

Nuisance – You have a right to the quiet enjoyment of your own private property and if anyone interferes with that right, with noise or pollution, you have a right to seek an injunction, to order them to cease their activity immediately, or you may also apply for damages to compensate you for your loss.

Product Liability – There are statutory contained in the Liability for Defective Products Act 1991 which enable consumers who purchase defective products and suffer a loss as a result, to sue the producer of the product for compensation.

Trespass – Trespass to the person, including assault, battery and false imprisonment are considered both criminal and civil offences.  An Garda Siochana will criminally charge and convict the perpetrator, but you as the victim may also sue the under civil law for compensation for the loss suffered.  Someone who trespasses on your property can also be sued, if you suffer a resultant loss.

Defamation
– if someone makes a false statement about you to a third party, and the statement is derogatory, you may sue them for your loss of reputation under defamation law.  Oral defamatory statements are known as slander, whereas written defamatory statements are known as libel.

Passing Off – Where a trader makes a misrepresentation that he is associated with a company or business, when in fact he has no association, the tort of passing off is committed.  The business affected by the misrepresentation can sue the trader for compensation and apply for an injunction to prevent the trader from persisting in his misrepresentation

Litigation

The potential areas for dispute in society are non-exhaustive i.e. cannot be set out in a comprehensive list. The law has developed over the centuries to categorise such disputes into various types and subtypes. Disputes are governed by the development of common law and equitable principals, statute, the Constitution, European law and other international arrangements. While each case depends on its own facts and circumstances, most cases fall into categories that are commonly litigated before the Courts and represent the bulk of cases before the Courts. However, by reason of changes in society, the enactment of legislation and so forth, novel or discrete cases, arise and we at Kevin P. Kilrane & Co. are more than happy to explore the potential of such cases.


In addition to the other areas of litigation on our website there are many other areas of litigation in which we have extensive experience including:-
  • Professional Negligence:- Professional Negligence arises from the breach of duty by a person acting in a professional capacity for a client who have or hold themselves out as having expertise in the provision of professional services. Medical negligence comes under the general headings of professional negligence and personal injury law and is dealt with elsewhere on this website. Each case of professional negligence as with any area of litigation depends on its own particular facts and circumstances and will be evaluated on the basis of same.
  • Defamation:- The Defamation Act 2009 created a new tort of defamation replacing the old laws on libel and slander and also significantly reduced the Statute of Limitations to reduce the time period within which proceedings must commence subsequent to a cause of action arising. In general the Statute of Limitations now provides for one year with a possible extension by the Courts in rare circumstances beyond this. We have acted against many media organisations both local and national and other large corporations on behalf of private individuals who have been defamed and had their good name and reputation tarnished. Defamation need not necessarily be by the spoken and/or written word alone but may also involve the general context and innuendo arising. We also act in defamation actions against private individuals. The purpose of defamation actions is to repair the damage done by the defamatory actions whether that be by way of apology and/or compensation. If you feel that you have been the victim of defamatory action, comment and/or statement then we shall be happy to explore the possibility of taking an action for you.
  • Judicial Review:- Judicial review is a procedure whereby a review can be sought in the High Court against a public body or institution generally regarding its procedures and decision making process. Such actions generally arise against the lower Courts, Planning Authorities and other Public Bodies. The time limit for commencing Judicial Review is governed by the Rules of the Superior Courts and is generally three months although it can be shorter in specific areas, for example, planning decisions. Judicial Review is not an appeal and is a discretionary relief on the part of the High Court. In order to commence Judicial Review proceedings, leave (permission) of the High Court must first be sought and thereafter if leave is granted by the High Court the case can proceed to eventually be heard by the High Court. Each case depends entirely on its own facts and if you feel that you potentially require Judicial Review proceedings to be brought for you then we will explore the merits of same and whether or not there any other viable or more appropriate actions that could be taken on your behalf.
  • Litigation regarding property:- Property disputes by their nature tend to be personal in nature and are often against ones own family members or neighbours. The typical areas of dispute surround rights of way, access, boundaries, adverse possession (more commonly called “squatters title”) trespass and nuisance. Most cases are within the Circuit Court jurisdiction and are brought in the Circuit Court where the lands are situate. The legal costs implications of commencing such actions often do not justify a case being commenced. However, there are nonetheless occasions when such actions must be brought or defended and we have extensive experience in these matters. If you require any advice in relation to contentious property matters then we are more than happy to advise you of your options and the legal issues involved.
  • Specific Performance of Contracts:- It is a general principle that when a person enters into contract for the sale of lands they are entitled to have that contract enforced. The remedy for same is by way of an application for an Order for specific performance of the Contract brought in either the Circuit Court of the High Court. Damages can also be sought in lieu of specific performance.
  • Injunctive Relief:- This is a very powerful relief which is only sparingly given by the Courts. Injunctions lie on the verge between the Civil law and the Criminal law and are only given where damages are not an adequate remedy. An Injunction can compel a person to take action or refrain from taking action. Making an application for an Injunction must be justified by the circumstances of the case but can operate as a very effective and speedy remedy for a client. Injunctions can arise in many contexts but typically involve issues surrounding land, employment etc. where some action by a third party must either be restrained by Court Order or a situation preserved until a full hearing of a case.
  • Wills and Estates:- By their very nature litigation surrounding Wills and Estates can be deeply emotional for clients and it frequently arises that clients deicide for personal reasons not to pursue viable cases. However, the principal and most common types of action which arise are as follows:-
    1. Challenge to the validity of a Will. The Common Law and the Succession Act 1965 determine the requirements to validly execute a last Will and Testament. A Will can be condemned by the Court as invalid if it fails to comply with technical statutory requirements and/or the deceased lacked the required testamentary capacity. Extensive case law and precedent exists governing in particular the law on testamentary capacity which is a legal rather than a medical test. Generally an extensive amount of research must be conducted and instructions taken to explore the merits of commencing such an action including taking up a deceased’s medical records and taking extensive instructions and statements from clients and their families. These cases are generally brought in the Circuit Court but where the estate is of a high value the case may be brought in the High Court. General suspicion, even if rational and logical surrounding the execution of a Will is not sufficient to have it condemned. It must be shown that at the moment of execution of the disputed Will that the deceased lacked the required testamentary capacity. If you have doubts surrounding the validity of a Will or if you require an action challenging the validity of a Will to be prosecuted, then, we shall be happy to advise you and explore the options available.
    2. Actions under the Succession Act, 1965. The Succession Act 1965 made radical changes to the law of succession in Ireland. The two most common types of action arising are that of legal right share and actions pursuant to Section 117 of the Act to provide for a child of a deceased where they have not been properly provided for in the Will of the deceased. Actions surrounding the legal right share of a spouse are actions to simply enforce the right of the spouse of their entitlement to elect to take the legal right share to which they are entitled pursuant to the Succession Act 1965 whether or not any provision has been made for them in the Will of their deceased spouse.
    3. Section 117 of the Succession Act 1965 provides for a moral obligation on behalf of a parent to provide for their children given their circumstances. The child need not be under age and we have recovered in the past on foot of actions for adult children who were themselves pensioners at the time of death of their parent. The case law subsequent to the coming into force of the provisions of Section 117 is extensive and the principles to be applied are fairly well established. However, each case depends on its own particular facts. It is also worth noting that Section 117 actions are held in camera and are not open to the public or the press. Very strict time limits apply to commence such actions and if you feel you may have such an action then you should immediately seek a Solicitors advice.
    4. Proprietary Estoppel. While not strictly litigation surrounding Wills and Estates proprietary estoppel most often arises in the context of a deceased’s estate. Proprietary estoppel is an equitable relief often covering very similar territory to a Section 117 action. The law provides that if a promise is made and if the recipient of that promise relies on same to their detriment equity will enforce that promise. The most common example of this is where a father promises a farm to his son and the son acts to his detriment on foot of that promise and eventually does not inherit the land or property. However, such actions can also arise while all parties are still alive.
    5. Disputes surrounding the administration of estates. The law governs the manner in which estates must be administered and the duties of the legal personal representatives of the deceased whether they be appointed as executors or administrators. If there is a dispute surrounding the meaning and effect of the contents of a Will or part thereof then it can be the subject matter of a construction suit for the Court to determine how it is to be administered. Disputes can also arise regarding the actions or inactions of an executor of administrator in and about the probate and administration of an estate. A legal personal representative obtains a Grant in an estate on the basis that they shall duly and faithfully administer same in accordance with law. Should they fail to do so then it is possible to bring an action to compel them to administer the estate properly and/or to have them removed from their position. Generally but not always it is possible to resolve such matters without resort to litigation.
    6. Joint property disputes. Where a deceased held a bank account with others a dispute may arise as to whether or not the proceeds of the account or accounts should pass to the survivors on the account or pass to the deceased’s estate and the beneficiaries thereof. With the exception of accounts held between husband and wife and parents to children unless the deceased intended and expressed that the survivor on the joint account was to take the proceeds of the account after their death then a resulting trust may arise whereby the survivor is deemed to hold the proceeds of the account in trust and must account to the deceased’s estate for same. If a resulting trustee fails to account to the estate then an action may lie against them and/or the financial institution involved.

DISCLAIMER: The content above describes the typical litigation disputes which arise surrounding Wills and Estates. It is not and could not be described in any way as a description of the law and is merely a description of the typical types of disputes which arise. No reliance should be placed on the above and no liability whatsoever will be accepted in respect of any reliance placed on the content herein. If you require advice then you should contact Seamus Monaghan & Co. or another Solicitor to take your instructions and provide you with advice and representation.

Commercial Litigation including Business / Partnership Disputes:-
Commercial Litigation arises between companies and businesses. It can range from simple matters such as non-payment of accounts and monies due to complex issues being determined by Mediation, Arbitration or Court Litigation. Disputes also arise within business structures whether companies or partnerships. What is common in any commercial litigation is the continued operation of a business and its viability and early resolution if possible generally brings a best outcome. If you require advice or representation please arrange a consultation to discuss your case.

Debt Collection:-
Debt Collection is self-explanatory. It is the process whereby monies due can be recovered by Court Order. First of all, Judgment must be obtained and thereafter if Judgment is obtained it must be enforced if payment is not forthcoming. Depending on the amount at stake proceedings issue in the appropriate Court be it the District Court, Circuit Court or High Court. Once Judgment is obtained then there are various methods in which it may be enforced including examination as to means in the District Court, execution of a Sheriff, Garnishee Order, appointment of Receiver by way of equitable execution, bankruptcy and registration of Judgment Mortgage leading to a further Court application for Well Charging Relief and sale of lands. Seamus Monaghan & Co. act for both Plaintiffs and Defendants extensively. If you feel that you have grounds to dispute a debt being claimed against you and/or have a case for a set off or counterclaim we will be more than happy to explore the merits of such action. Debt collection in the current economic climate can be a very difficult exercise but if you believe that monies are due to you and the Defendant has the means to pay same then we will explore the merits of bringing a debt recovery action for you.

Please contact us at Seamus Monaghan, Solicitors to arrange an initial appointment to discuss your case.
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