Author: Maree Baker

Is it time to put compulsory retirement age out to pasture?

As published in the Business Post, August 16th 2020.

COVID-19 may have dominated the workplace agenda in recent months – but employers in Ireland can’t lose sight of any of the other issues arising in the course of the employer-employee relationship.

Of these, one of the most challenging is the subject of retirement age.  We are seeing an increasing number of cases being taken in the courts and the Workplace Relations Commission on the subject.

This issue is going to persist – and may actually lead to a dramatic change in the manner in which we think of retirement.

For many years, a retirement age of 65 was largely uncontroversial in Ireland – and employers and employees alike accepted that an employee would step down from their role at that point. Among other things, it suited employers to make room for the next generation of employees and it suited retiring staff because they could avail of the then-State Pension at the age of 65.

Life expectancy

However, significant increases in life expectancy have meant that employees no longer regard themselves as ready to retire at 65. In tandem with this, the development of equality law principles means that it’s much more difficult to argue that somebody is no longer capable of doing their job simply because they are older. Finally, increasing numbers of employees are taking action in the courts/WRC to enforce their rights – which means that the issue is getting increasing media attention. This by itself may prompt other employees to consider their position.

In 2018, for example, a very high-profile WRC case was taken by a former RTÉ reporter, Valerie Cox. She argued that she was no longer receiving work from the broadcaster because of her age – and she succeeded in convincing the WRC that she was right. Ms. Cox was awarded the sum of €50,000.

Increasing numbers of claimants are likely to follow her lead. In 2018, 2019 and 2020 we saw a number of similar claims in which attempts to impose a retirement age were overturned by the courts. Notably, in some of these cases the tribunal didn’t confine itself to a financial award like in the Cox case – it actually directed the employer to reinstate the employee in their old role. If that practice is followed by the courts and tribunals, it will make it even more difficult for an employer to compel retirement.

So what is an employer to do in this situation? Are we already at the point in time where retirement ages are themselves to be the subject of compulsory retirement?

We may not yet be at that point, but it is likely getting closer. Employers still have some scope to justify a mandatory retirement age. In 2015, the Oireachtas enacted legislation which introduced a level of clarity. In line with the 2015 Act, it is possible to fix a retirement age if:

  • This is objectively and reasonably justified by a legitimate aim; and
  • The means of achieving that legitimate aim are appropriate and necessary.

What this means in practical terms is that if an employer can identify an objectively sound reason for a retirement age, they can try to impose one. The tricky part is ensuring that the justification is robust, which can be challenging. An employer may be able to argue that succession planning is an essential part of their business, for example – an employer may say that they need to motivate younger employees by making it clear they will be promoted in time.

As well as that, certain businesses may be able to point to physical attributes needed to do the work properly – although an argument like that will definitely be the subject of close scrutiny by the courts/tribunals if an employee brings a claim.

Justifications

On this subject, in recent years the courts have had to review diverse justifications for having a retirement age. One of the complications in doing this is – obviously – because every business is different. What’s necessary in one may not be in another. An employer seeking to impose a retirement age will have to try, though. In addition, an employer will have to document its reasons – without a written Retirement Policy it is going to be near-impossible to convince a court or tribunal that you have a sound basis for insisting on retirement in your business.

Employers also sometimes overlook the necessity of including a retirement age in the employment contract – another potential trap.

Employers should also keep an eye on the bigger picture. It’s entirely possible that retirement ages will be the subject of further Governmental action in the coming years.  The 2020 Programme for Government, for example, indicates that the new Government intends to look closely at “sustainability and eligibility  issues” in connection with the State Pension.  What will happen next isn’t entirely clear, at least as far as legislative action is concerned, but there is no doubt at all that employees will continue to challenge compulsory retirement – and likely in increasing numbers.  Legislative intervention, of one form or another, is probably inevitable.

In fact, if the trend continues to move in the present direction, we may face a situation in a relatively short space of time in which working for as long as an employee wants (and is able) is the norm in Ireland.

For further information on the above article, or on other employment law queries, please contact Patrick Walshe.

Impact of COVID-19 on the Irish film and television industries – the road to resuming production

The COVID-19 pandemic has had a huge impact on the film and television industries in Ireland. A number of film and television drama producers were forced to suspend production in March 2020, which in turn led to layoffs of many crew members and other personnel across various projects. While production continued in some sectors of the industry during the lockdown period, particularly in the animation sector, the production of film and television was greatly impacted by the implementation of governmental protocols in relation to the closure of all but essential workplaces and social distancing in the wider community.

The road to the recommencement of production poses a number of significant challenges to the Irish film and television industries in Ireland, from accessing funding to securing adequate insurance policies and completion bonds to ensuring that health and safety protocols can be adhered to on set to filming crowds in the new era of social distancing.

 

FUNDING SUPPORTS IN IRELAND

Section 481
The Department of Culture, Heritage and the Gaeltacht (the “DCHG”) is continuing to process applications for certification under Section 481 of the Taxes Consolidation Act 1997 (as amended) and to accept materials relating to completion.

It is a requirement of Section 481 that producers keep the DCHG notified of any change of substance to a certified project. In this regard, any substantial change which has arisen for a production as a result of COVID-19 should be notified to the DCHG. This includes any production which has been suspended or which may be materially delayed or otherwise changed from what was anticipated at the time the application for certification was made. Details of what information the DCHG require and where such notifications should be sent are available here.

Screen Ireland
Screen Ireland announced new support measures which are designed to ease the impact of COVID-19 on the industry and aim to develop a “strong slate of quality projects, so that the industry can emerge in a position to scale up production activity”.

These measures include an increase in the Strategic Slate Development Fund from €1million to €3million; an additional €1million in enhanced development support across feature film, television and animation which will be available to Irish production companies working with writers on a project by project basis; a new scheme, worth up to €150,000 per company, to help production companies hire a financial consultant, with companies able to apply for a maximum of €5,000 and an enhanced investment of an additional €100,000 allocated evenly between the Screenplay Development Scheme and Spotlight Development Scheme funds.

Screen Skills Ireland, the skills development unit within Screen Ireland, has also introduced the new Screen Stakeholders Funding Scheme worth €200,000. The scheme is available to those supporting the screen sector in Ireland to help deliver a series of online events and other activities across a 12-month period.

In tandem with Screen Producers Ireland’s COVID-19 Return to Production Guidelines for live action film and TV drama, Screen Ireland has launched a new COVID-19 Production Fund worth €1 million (capped at €75,000 per production), which is designed to partially offset additional production costs associated with implementing the new guidelines.

Screen Ireland’s funding measures, which also include a range of skills development schemes and new supports aimed directly at screenwriters, directors and actors build on a number of initial moves to help alleviate the impact of COVID-19 on the industry.

Detailed guidance on the COVID-19 measures and eligibility requirements introduced by Screen Ireland are available here.

The Broadcasting Authority of Ireland

The Broadcasting Authority of Ireland (the “BAI”) announced details of a special funding round to support the independent commercial radio sector in its provision of public awareness and understanding of COVID-19, following additional requests from the Minister for Communications, Climate Action and Environment.

The BAI has indicated details of a special round of the Sound & Vision 4 scheme as a means of continuing to provide support to independent producers, commercial and community television and public service broadcasters, following the implementation of governmental protocols in relation to the closure of all non-essential workplaces.

The BAI will operate the open funding round later in 2020, as soon as sufficient funding becomes available, albeit that the BAI has acknowledged that the overall fund is likely to be less this year due to reduced television licence fee receipts for 2020.

Details of these rounds will be announced in due course.

 

INSURANCE/COMPLETION BONDS

As a general rule, motion picture and television production insurance policies cover every risk unless a risk is specifically excluded. For producers who purchased production insurance before COVID-19 became global news earlier this year, those policies may well cover the economic damages and costs arising from the COVID-19 pandemic. We are aware that insurance companies began issuing COVID-19 exclusions to new policies earlier this year and insurers are likely to include such exclusions to any new policies being issued in 2020 and beyond. This will mean that commercial insurance for COVID-19 will almost certainly be absent for the foreseeable future. Along with the cost for producers which will be involved in putting new safety protocols in place for productions, it is likely that insurance costs will also rise, significantly inflating a production’s total budget and increasing financial pressure on producers.

In France, the government has set up a temporary indemnity fund for films and television productions where filming has to be paused or rescheduled due to the COVID-19 crisis. The purpose of the fund is to provide producers with some relief in circumstances where insurers are refusing to cover pandemic risks. The €50 million fund will cover up to 20% of a project’s budget and will work on a case-by-case basis. However, as the fund became effective on 1 June 2020, it will only be accessible for upcoming shoots and will not serve to cover delays or cancellations on shoots that were suspended during the lockdown period.

Insurers in the US and in the UK have also been looking to government to step in to act as insurer of last resort. Such a move would serve to give buyers confidence to buy, banks and financiers confidence to lend and producers confidence to get their productions up and running again. A UK taskforce on insurance protection recently submitted a proposal to the UK government for a guarantee around coverage for suspension or abandonment costs relating to COVID-19. It is hoped that this may result in the implementation of a government-backed fund which could be relied upon in cases where an outbreak of COVID-19 halts production on feature films or television productions.

In Ireland, it is our understanding that certain insurance companies are, for a limited period, offering policies to cover COVID-19-related losses which are excluded under the main production insurance policy. These policies cover named individuals and losses arising from an individual contracting COVID-19 and the knock-on costs of interrupting production (capped at €1 million). However, such policies are expensive and may not be adequate for a large-scale production. Also, the policies we have seen are limited to circumstances where a specified individual engaged on the production is diagnosed with COVID-19; it is not clear yet whether any such policy will provide cover against the consequences of a general lockdown, such as that introduced at the end of March 2020.

Andrew Lowe (of Element Pictures and chairperson of Audiovisual Ireland) has warned that the film and television industry in Ireland will not be able to restart unless the Government steps in as the insurer of last resort. We understand that discussions have been taking place between Screen Ireland and the DCHG in relation to insurance for Irish productions.

While it is difficult to predict how the requirements of completion bonds may change as a result of COVID-19, it is clear from recent comments from Dan Read (CEO of Film Finances Australasia) that bond companies are turning to government to seek assistance with regard to insurance of the COVID-19 risk: “With COVID-19 excluded, the wheels of production grind to a halt. We urgently need the government to step up as insurer of last resort until insurers start to price in the Covid risk, which will likely take a while and may be closer to the time a vaccine is discovered.” We can only assume at this stage that it is likely that completion bond companies with a market in Ireland will take a similar stance.

 

PRACTICALITIES OF RETURNING TO PRODUCTION

It has become clear in recent weeks that the way we live and work day-to-day is going to change significantly in a COVID-19 world, at least in the short to medium term, and the film and television industry is no exception. For producers, this means changing and adapting usual working practices, to ensure a safe and healthy working environment for cast and crew. While these changes throw up many challenges, they will be an essential reality of future productions.

Production around the world has been opening up, slowly, from as early as mid-April and a number of major productions have resumed or are shortly to resume production, including the Avatar sequels in New Zealand and Universal’s Jurassic World: Dominion, which is reported to be re-starting filming in the UK, from early July. While production could resume in Ireland from June 29th, this will depend on productions being in a position to adhere to all public health and health and safety requirements as outlined by the Government, and so it remains to be seen how quickly production will get up and running. We understand that at least one major production is targeting 31 August for the start of shooting.

From a practical perspective, what do producers need to do? In the first instance, producers need to analyse and identify the restrictions and the risks that may affect their production and then plan how best they can manage or mitigate those restrictions and risks.

On 9 May 2020 the Government published a Return to Work Safely Protocol outlining a series of measures that employers should take in order to adapt their workplace procedures and practices to comply fully with the COVID-19 related public health advice. While not specific to the film industry this document outlines general guidance, much of which will be relevant to how productions will need to operate in the future. Among other things the Return to Work Safely Protocol deals with carrying out risk assessments in the context of COVID-19; preparing a COVID-19 response plan; providing information to staff; social distancing in the context of the workplace, managing workplace facilities, COVID-19 training, and preparing how to deal with cases of COVID-19 in the workplace.

From an industry specific perspective, there are numerous elements to be considered to get back to production safely, these include, reducing numbers on set/location; assessing what creative or editorial changes can be made to reduce risk; protocols for safe use of facilities and equipment; carefully considering and assessing all shoot locations, whether interior or exterior, managing travel restrictions and introducing staggered call times, meal times and rest periods.

A number of useful guidelines have been produced by parties within the industry, including, Commercial Producer’s Ireland’s Filming Protocol and in the UK, the British Film Commission have produced guidance on Working Safely During COVID-19 in Film and High-end TV Drama Production, while the BBC, Sky, Pact, and ITN, among others, have collaborated to publish a TV production guidance document designed to assist independent productions to re-enter production.

Screen Producers Ireland, in collaboration with a number of Irish industry stakeholders, has published guidelines for the Irish industry designed to be used by those productions carrying out film and TV drama (live action) and factual and entertainment production activity from prep stages through to post-production. The DCHG has confirmed that these guidelines adhere to Government COVID-19 health and safety guidelines. The Film and TV Drama (Live Action) guidance document is available here and the Factual and Entertainment guidance document is available here. These documents offer detailed guidance on the kinds of considerations that need to be made and the changes that will need to be implemented for Irish production to resume safely.

It is widely accepted that COVID-19 will be a fact of life for some time, so in addition to getting back on set safely, producers will need to consider protecting themselves against potential further disruption or shutdown of production. In addition to insurance considerations, as discussed above, producers may need to have an additional contingency plan to help protect against future suspension or interruption of production.

Travel raises another set of issues. Film and television production is a global transient business and with most countries and indeed states, imposing quarantine restrictions and/or various travel bans, international travel has been hugely disrupted. It looks likely that travel, in the short term at least, may necessitate periods of isolation on arrival at certain destinations, adding cost and logistical considerations to any production schedule. Added to the logistics of travelling is the consideration that cast and crew will need to be willing to travel and depending on location in question and the situation at that location at the time of travel, this will not necessarily be straightforward.

In order to protect themselves to the greatest extent possible, producers will also need to consider the underlying agreements they are entering into in relation to production. It would be prudent to ensure that additional protections are built into production and financing documentation, as well as cast and crew contracts, and other agreements, to deal with the new realities of filming and to mitigate, where possible, the risks arising from further COVID-19 related disruption. In addition, company policies, for example those relating to health and safety and data protection may well need to be reviewed and updated with COVID -19 in mind.

 

This article outlines just some of the issues and challenges facing Irish film and television productions at this time. The situation continues to change and evolve day-to-day, but what is certain is that the coming weeks and months will see great changes in how production operates.

If you have concerns or questions arising from any of the above, please feel free to get in touch with any member of our team and we will do what we can to help you and your production navigate this exceptional and challenging time.

Launch of the Irish COVID Tracker – An update

The long awaited Irish COVID Tracker App was launched by the Health Service Executive in conjunction with the Irish Department of Health on the 6 July 2020. At the time of writing, it is reported that there have been one million downloads of the app since it went live.

We published an article on 24 June looking at what was happening in the world of contract tracing apps. This article provides an update on what we know of the Irish app and will review the newly published information concerning user privacy.

The Launch
In line with the recommendations set out in the Common EU Toolboxes for Member States (15 April 2020, Version 1.0), the use of the app is completely voluntary and has an opt-in to use different services available on the app, which can be deleted at any time. The app can also record contacts that a person may not notice or remember.

The main features of the app are:

  1. Tracing and Exposure Notifications – this will notify a user as soon as possible if the user has been in close or sustained contact with someone who has tested positive for COVID-19; and
  2. COVID Check In – this will enable a user to record health symptoms, without revealing their identity, to the HSE on a daily basis.

Tracing and Exposure Notifications
The app uses technology developed by Apple and Google called COVID-19 Exposure Notifications where anonymous rolling identifiers are exchanged between phones which have the app downloaded. Exposure Notifications enable a user’s phone to generate a random, unique identifier every 10 to 20 minutes. This means that if a user is close to another user whose phone has exposure notifications turned on, the phones will exchange user identifiers, like a “Bluetooth handshake”.

As the app is a decentralised model, it ensures that the identifier data is stored on the person’s phone and neither the person nor anyone else will be able view this data. The idea being that these anonymous identifiers cannot identify the person to other users or to the HSE. This gives the user of the app greater control over their data and, as with most decentralised apps, once the app is deleted all of the data is deleted with it.

If a user subsequently receives a positive diagnosis, the HSE’s Contact Tracing Centre will call the user. The user will then be asked if they would like to assist the contact tracing process by uploading the identifiers stored on their phone to a HSE Registry, where identifiers are published publicly and referred to as Diagnosis Keys.

Every few hours, the latest Diagnosis Keys from the HSE Registry will be downloaded by every user’s phone. These will then be used to check for matches against identifiers that have been collected by the user’s phone. If there is a match indicating that a user has been in close contact with a person who was diagnosed with COVID-19, the user will receive a ‘Close Contact Alert’.

What data is collected and processed?
The HSE and the Department of Health are Joint Data Controllers.
The information processed by the app is a combination of personal data, special (health related) data and anonymous data. It is processed in 3 different ways, depending on whether the information has been provided by:

  1. The User
  2. The Exposure Notifications
  3. The phone or the app

User Data
The user data that is collected is the information that the user chooses to provide to the app. These include details relating to sex, age range and county. A user’s phone number (if provided) is used for follow-up calls by the HSE if a person receives a Close Contact Alert.

Exposure Notifications
In respect of the tracing features, the following data is processed for the operation of the Exposure Notifications:

  • Identifiers sent and received between phones;
  • Identifiers uploaded to the HSE Registry if the user is COVID-19 positive and has chosen to upload this data; and
  • Identifiers downloaded from the HSE Registry for matching.

It is important to note that the above identifiers are pseudo-random alpha numeric values that cannot be used for identification.

Data provided by the User’s Phone or the App
The HSE has noted that as a consequence of how network traffic is passed on the internet, a user’s IP address will also transfer. However, the HSE offers assurances that a user’s IP address is not used for the purposes of identification and is “removed at the front door of the HSE server”.

Data Privacy and the Interoperability of EU wide Contact Tracing Apps
The launch of the Irish app arrived later than most member states, with Germany, France and Italy rolling out their apps earlier in June. However, the app is intended to work seamlessly when Irish users travel to other EU countries which also follow the decentralised approach.

The Commissioner for Internal Market Thierry Breton recently stated that “As we approach the travel season, it is important to ensure that Europeans can use the app from their own country wherever they are travelling in the EU. Contact tracing apps can be useful to limit the spread of coronavirus, especially as part of national strategies to lift confinement measures”.

With that in mind, the European Data Protection Board (EDPB) recently released a statement on the interoperability guidelines for contact tracing apps in the EU. The statement builds on the EDPB Guideline from 04/20 with regard to data protection and the tracing apps.

The EDPB reiterated that the use of contact tracing applications relies on the pseudonymised personal data of the users of the applications, and any enabling of the sharing of data should only be triggered by a voluntary action of the user. When personal data is obtained by the controller(s), the data subject needs to be given clear information about the additional processing related to the use of interoperability. The goal of interoperability of the apps should not be used as an argument to extend the collection of personal data beyond what is necessary.

Domestically, the HSE has committed to dismantling the app once the COVID-19 crisis is over. It will be interesting to see if a similar approach will be taken by all member states.

Comment
It remains to be seen how effective the app will be. It is clear however, that the greater the uptake by the Irish population, the better its chances of success.

There has been much debate on privacy related issues concerning the app, such as users IP address as referred to above, the use of consent as a legal basis and indeed the location settings having to be always on for Android users in order for the “Bluetooth handshake” to work. It would appear for the later issue however, that this is not a flaw of the app (from a privacy perspective or otherwise) but rather an issue in how the Android technology works.

Notwithstanding these concerns, with a million downloads in less than 3 days, the response to its use has been overwhelmingly positive and should greatly aid the Irish fight against the virus.

It has to be said that such response may also be due to the approach taken by the HSE and Department of Health, easing concerns with regard to user privacy. The Government have to the best of their ability been transparent with the app and chose the decentralised and anonymised model, based on voluntary participation by users. The Data Protection Impact Assessment, the source code and a product explainer were all made publicly available in advance of the launch, demonstrating the commitment to user privacy and transparency.
The strong message from Government is to download the app and help us all protect one another in the fight against Covid-19.

Article written with the assistance of Deidre Brannigan, Trainee Solicitor.

Emergency COVID-19 Bill addresses Planning and Development and Building Control

The Emergency Measures in the Public Interest (Covid-19) Bill 2020 passed the first stage in the Dáil on 24 March 2020. Section 9 of the Bill inserts a new Section 251A in the Planning and Development Act 2000, as amended.

In effect, it is proposed to suspend time limits in specified legislation for the period of the Covid-19 emergency. As we do not know how long that emergency will last, the Bill has far-reaching implications for developers and individuals seeking permissions.

The Bill proposes to suspend any ‘appropriate period’, specified period or other time limit referred to in the following legislation:

  • Sections 4(4), 6 and 17(6) of the Building Control Act 1990, as amended
  • Derelict Sites Act 1990
  • Planning and Development Act 2000, as amended
  • Part 2 of the Urban Regeneration and Housing Act 2015
  • Chapter 1 of Part 2 of the Planning and Development (Housing) and Residential Tenancies Act 2016
  • Any regulations made under any of the above Acts or provisions

The suspension will occur as soon as Section 9 of the Bill comes into force by way of Order made by the Minister for Housing, Planning and Local Government.

When deciding the end date, the following criteria are to be considered:

  1. the nature and potential impact of Covid-19 on individuals, society and the State,
  2. the capacity of the State to respond to the risk to public health posed by the spread of Covid-19,
  3. the policies and objectives of the Government to protect the health and welfare of members of the public,
  4. the need to mitigate the economic effects of the spread of Covid-19,
  5. the need to ensure the effective operation of the planning system and provide, in the interest of the common good, for proper planning and sustainable development,
  6. the need to ensure the effective operation of the building control system and to protect the health, safety and welfare of persons using buildings, and
  7. the need to mitigate the likely impact of Covid-19 on the availability of the resources of the State to perform functions relating to the planning and building control systems.

In effect this will mean that the life of a planning permission, typically set at 5, 7 or 10 years from the date of grant, will be extended by the same period as this emergency suspension period. It also means that the time limits by which a planning authority or the Board must make decisions on an application or an appeal, and the time limit by which a party may seek to appeal a decision, will also be suspended by the same period.

The suspension will end, eventually, by 9 November 2020. It may end earlier than that, however, as the mechanism for defining the end date is that the Government will make an Order setting an initial end date, yet to be defined, but that end date may be extended from time to time by further Orders until 9 November 2020 when presumably further legislation would be required if the public health crisis continues.

COVID-19 to lead to a force majeure outbreak?

As the World Health Organisation (“WHO”) and national governments continue to battle the spread of COVID-19, the impact on travel, events, national economies and supply chains is evolving day by day.  Although China’s importance to the global economy is well known, the COVID-19 crisis has brought into sharp focus how interlinked and dependent Western businesses are on China for its exports such as machinery, electrical equipment, iron and steel.  The question now arises for those in the construction industry as to  whether the COVID-19 outbreak is a force majeure event under their particular construction or supply contract.

Such contracts will often contain a force majeure clause which in most cases will be defined along the lines of the following terms:

A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable…which prevents, hinders or delays a party from performing its obligations under the Contract…

Many of these clauses go on to list examples of force majeure events which typically include the outbreak of war, terrorism, worker strikes, acts of God and crucially, epidemics or pandemics. Now that the WHO has declared COVID-19 is a ‘pandemic’ it may be easier to satisfy a triggering event requirement for force majeure under a construction contract especially if it prevents, delays or hinders performance of obligations under the contract. It would be hard to argue that the consequences of the COVID-19 outbreak, be it shipping delays or shortage of materials, are within a party’s ‘reasonable control’ and therefore employers, funders, contractors and subcontractors need to carefully consider the terms of their contracts as part of their ongoing risk assessment process.


Effect of force majeure

There is no doctrine of force majeure in Irish law and so in circumstances where there is a force majeure clause in a contract this will necessitate a forensic analysis of the contract.  The Courts have regularly found that the proper interpretation of a force majeure clause is to interpret the clause by reference to the words specifically used in the contract by the parties[1].  Where a force majeure clause refers to ‘prevention of performance’, then it appears from case law[2] that a party seeking to rely on COVID-19 as a triggering event would need to show that performance of its obligations is actually legally or physically impossible and not just difficult or unprofitable to do so. However, a force majeure clause which uses wording such as ‘hinders’ or ‘delays’ will be less onerous for a party seeking to rely on the COVID-19 outbreak as a triggering event. Although there may be a duty on a party to take reasonable steps to mitigate the effects of a force majeure event, the consequences of a party successfully invoking force majeure will commonly include:

  • suspension of or relief from the party’s obligations under the contract;
  • delay or non-performance will not lead to liability on the part of the party in default;
  • extensions of time;
  • renegotiation of terms; and
  • right to terminate the contract after a period of time.


Analysis of contracts

As Roy Keane once famously said if you “fail to prepare, prepare to fail”, and so as the effects of the COVID-19 outbreak evolve, those in the construction industry would be wise to actively review their various contracts in order to determine any risk exposure they may have.  By way of assistance, we set out in the table[3] below a short summary of the force majeure risk events as contained in a number of frequently used construction contracts.  We also refer to circumstances where a party may be entitled to claim an extension of time and/or costs.

 

 

COVID-19 and public procurement

Finally, in relation to public sector construction contracts, an aspect for contracting authorities to consider is the extent to which modifications may be required to an existing contract due to the impacts of COVID-19 on performance of the contract. To the extent that the contract needs to be modified, there are exemptions under the EU Public Procurement Directives to allow changes to contracts for “unforeseen circumstances” that a diligent contracting authority could not have anticipated during the term of the contract. The implications arising from a further spread of COVID-19, such as delayed performance on construction projects, could necessitate changes to agreed milestone and completion dates and the application of liquidated damages.

 

For further information or advice, please contact our Construction, Project and PPP Team.

 

 

 

[1] Coastal (Bermuda) Petroleum Ltd v VTT Vulcan Petroleum SA (No 2) (The Marine Star) [1996] 2 Lloyd’s Rep 383

[2] For example, Tennants (Lancashire) Ltd v G.S. Wilson & Co. Ltd [1917] AC 495

[3] Please note that this is a summary document only and although it seeks to summarise certain risks, the original contract forms should be referred to when required as such standard forms are commonly amended.

Bank of Ireland Corporate Banking

Advising Bank of Ireland Corporate Banking on the financing of Mid Clare Renewable Energy (“MCRE”) DAC to construct and operate a 7.1 megawatt wind farm in County Clare.

Once fully operational, the wind farm will have the potential to power the equivalent of c. 6250 homes with green/carbon neutral electricity and over its life time is estimated to reduce carbon emissions by c. 400,000 tonnes.

Further information available here.

Partner and head of energy Siobhan McCabe led the Philip Lee team.

William Marshall PLC

Advising William Marshall PLC in the acquisition of Irish property assets for shares and other consideration from Moralltach Global.

The assets comprise a mix of around €400 million investment and development opportunities.

Further information available here.

Corporate partner Andreas McConnell and property partner Tom Conway led the Irish law team who acted for William Marshall PLC.

Minister for Health v The Information Commissioner

The Supreme Court has clarified when a public body “holds” a record for the purposes of the Freedom of Information Acts.  Partner Rachel Minch discusses the recent decision in Minister for Health v The Information Commissioner.

Background

The case related to a request made to the Department of Health under the Freedom of Information Acts 1997 to 2003 (the 1997 Act) to access a transcript of an interview conducted in the course of a statutory review by former judge of the High Court, the Honourable Thomas C Smyth (“the Reviewer”).

The purpose of the review was to determine whether further investigation into the practices and procedures operating in Our Lady of Lourdes Hospital Drogheda between 1964 and 1995 to protect patients from sexual abuse was warranted, it was referred to as the Drogheda Rewiew. In particular, the review looked into certain allegations made against a named surgeon.

The Reviewer left a sealed box containing the transcript with the Department of Health for safe keeping. He noted that “the documents are essentially my documents” and should only be opened following an application to Court for access, which application should be on notice to him.  The Minister for Health argued that the Department did not ‘hold’ the records within the meaning of the 1997 Act as it had no right to lawfully access them whereas the Commissioner found that the records were ‘held’ by the Department (but that exemptions may apply).

By judgment dated 27 May 2019, the Supreme Court upheld the Department’s position.

Decision of the Information Commissioner

In May 2012, an individual who had been interviewed as part of the review, sought a copy of the transcript of his meeting from the Department under the 1997 Act. The Department refused on the basis that the documents were furnished to them under strict instructions from the Reviewer and that it did not hold the records for the purposes of the Act. It submitted that it was effectively “a depository” for these documents and could only give access to records which it holds and which were under its control. Following an internal departmental review, the request was refused under similar terms. It was also noted that the Drogheda Review was not a public body for the purposes of the FOI Act, and as such, the request could not be forwarded to the Reviewer.

This decision was appealed to the Information Commissioner, who annulled the Department’s decision and directed the Department to deal with the request subject to the provisions of the 1997 Act. The Commissioner reached this conclusion having regard to the ordinary dictionary definition of the word “hold”, i.e. “physical possession”. This term is not defined in the 1997 Act although Section 2(5) provided that “a reference to held by a public body includes a reference to records under the control of that body”.

Having regard to this provision and Section 6(9) of the 1997 Act, which deems records “in the possession of a person who is or was providing a service for a public body under a contract for services… to be held by the body”, the Commissioner found that any issue around whether records are under the control of a public body arguably “should only arise where records are not physically held by the body”. However, the Commissioner’s decision went on to conclude that the Department also controlled the documents in the circumstances of the case where the review was commissioned by the Department, the review had concluded and the final report and related records had been furnished to it.

The Minister appealed the decision to the High Court which found that the Department did not hold the records and the Commissioner appealed this decision to the Supreme Court.

Definition of ‘held’

The Supreme Court concluded that the term ‘held’ cannot simply mean lawful, physical possession of a record. In order for a record to be ‘held’ within the meaning of section 6(1) of the 1997 Act, the public body must not only be in lawful possession of the record in connection with or for the purpose of its business or functions but also must be entitled to access the information contained in the record.

The Court appears to have introduced a split between a record and the information contained in a record. At paragraph 59, the Court states:

As the purpose of giving a right of access to a record is to access information held by a public body, it does not appear to me that a record can be considered to be held by a public body for the purposes of s.6(1) unless the information in the record is also held by the public body. As already determined, this means that the public body is in lawful possession of the information in connection with or for the purpose of its business or functions. To be in possession of information in connection with or for the purpose of its business or functions requires, at a minimum, that the public body has access to the information in question.

The Supreme Court also clarified that the focus is whether the public body itself has ‘access to the information/record’ and not whether the record/information is subject to legal prohibition affecting its disclosure to, for example, third parties. Such considerations form part of the separate and distinct questions of whether the record is or is not an exempt record, as defined, or whether there is a lawful basis for the Department to otherwise refuse access to the document under the FOI Act.

The communication exhibited in the High Court clearly showed that the Department did not have a right of access to the information in the records and therefore, the Supreme Court upheld the High Court’s decision that the record sought was not held by them under Section 6(1) of the 1997 Act.

The position under the Freedom of Information Act 2014 in this respect should remain the same.

 

For further information on this topic please contact Rachel Minch or Aoife Gillespie.

Who will succeed Vestager is a more important question than where she might end up

As published in The Irish Examiner, 10 June 2019.

 

Who’d be a politician? Despite being dubbed the most powerful woman in Brussels, Margrethe Vestager may soon be out of a job.

Her five-year mandate as the EU’s Competition Commissioner comes to an end in October. Regardless of her high profile it seems unlikely that she’ll win enough support for her recently declared candidature for the EU’s top job of European Commission President.

To add insult to injury, there have been no messages of support from the leadership of Denmark’s Social Democrats, victors of the recent national elections there, meaning she is unlikely to remain in her current role.

Commission appointments are ultimately political, meaning it would be no surprise if the Danes opt for another candidate when the new European Commission is being appointed later this year.

Ms Vestager has, undoubtedly, left an indelible mark on the Competition Commissioner role. Fines totalling over €8bn levied on Google for multiple abuse of dominance findings, as well as illegal State aid decisions against tech giants such as Apple – in the amount of €13bn – and Amazon have set a high bar for her successor.

The recent opening of significant investigations by the Federal Trade Commission and Department of Justice – the two bodies which enforce competition laws in the US – into the activities of the so-called ‘GAFA’ – Google, Amazon, Facebook and Apple; the four most powerful American technology companies – is also telling.

For a long time, Commissioner Vestager ploughed a lonely furrow withstanding accusations of bias in her enforcement priorities against US businesses.

The question remains – what will happen to European competition policy in Commissioner Vestager’s absence?

Ms Vestager followed the mission statement of her predecessor, Joaquín Almunia, and will likely look to set the tone for her own successor. It is now a tradition in Brussels for departing commissioners to end their mandates by attempting to set the agenda for those who will follow after.

Mr Almunia exited stage left in 2014, but not before setting the wheels in motion for the provision of greater enforcement powers to all national competition authorities across the EU.

He wanted to ensure that all national authorities could enforce competition law rules with the same level of effectiveness, and we’ve seen significant legislative strides in this area.

This is a long-anticipated measure that may have significant effects in Ireland as it should, in principle, allow the Competition and Consumer Protection Commission (CCPC) to levy administrative fines on companies breaching competition law without the need to pass via the DPP and the Irish courts system.

So, what might Commissioner Vestager leave on the agenda for her successor?

Her actions, thus far, suggest that she’ll look to keep any new commissioner focused squarely on the technology sector and the digital world. This overlaps with her flagship cases against the likes of Google, Apple and the microchip’s manufacturer Qualcomm.

From a policy perspective, technology is changing so rapidly that existing methods of enforcement can seem outdated quickly as platforms and algorithms change and we struggle to keep pace.

Commissioner Vestager took a series of measures to counteract this potential threat during her mandate, including appointing a number of digital experts to consider the challenges that digitisation poses to competition law policy. Their findings became the subject of a detailed, lengthy report which was recently published. Commissioner Vestager will want to see the findings from this report implemented and forming the basis of the competition agenda in the digital era going forward.

Her legacy will largely depend on her successor having the courage to follow the trail she has blazed and implement the plans she has set in motion.