Author: Admin

A former soldier has settled his damages action against the State over health problems allegedly suffered as a result of being prescribed the anti-malaria drug Lariam.

Patrick Fedigan (51) brought proceedings over the alleged effects of taking the drug while he served with the Defence Forces during UN peacekeeping deployments to Africa between 2001 and 2009. The claims were denied.

John Gordon SC, with Bruce Antoniotti SC and John Nolan BL, instructed by Kent Carty Solicitors, for Mr Fedigan told Mr Justice Bernard Barton on Tuesday that following out of court talks between the parties, the action had been resolved.

Counsel said the case could be struck out. No further details of the settlement, understood to be confidential, were given.

The State, represented by Eoin McCullough SC, Declan Buckley SC, Garrett Cooney BL and Joe Jeffers BL, had denied negligence or liability for any injuries suffered by the plaintiff.

The defendants had also argued Mr Fedigan was out of time to bring his case.

Mr Justice Barton welcomed the settlement.

Several cases
The action is one of several similar cases brought against the State by members of the Defence Forces who claim they suffered various illnesses as a result of being prescribed Lariam.

In his action, Mr Fedigan from Lobinstown, Navan, Co Meath claimed he was prescribed Mefloquine Hydrochloride (Lariam) when he served in Eritrea in 2001, Liberia in 2002 and Chad in 2009.

He claimed that as a result of his exposure to Lariam , he has suffered from conditions including loss of balance, anxiety, panic, insomnia, vertigo, and memory problems.

He claimed the Minister for Defence, Ireland and the Attorney General were negligent and in breach of their duty towards him on grounds including he was not a suitable person to be prescribed Lariam.

The ex-soldier claimed his prior medical history had not been ascertained before he was prescribed Lariam and the defendants did not provide him with adequate support, treatment or management when he made complaints of symptoms after being prescribed it.

Mr Fedigan further claimed the defendants failed to provide him with a safe system of work, and exposed him to risk of injury which they out to have known. He retired from the Defence Forces in 2013.

The case, had it proceeded, was expected to last up to 10 weeks.

The Irish Times
Aodhan O’Faolain

The Department of Defence has confirmed that the number of cases it is defending against former Defence Forces staff over chemical exposure in the Air Corps has risen to eight.

Detail of the new case emerged as Sinn Fein prepares a motion calling for Oireachtas inquiry into the health and safety management at Air Corps headquarters at Casement Aerodrome, Baldonnel.

In January 2017, this newspaper revealed how the Department of Defence had received a number of protected disclosures from whistleblowers alleging serious shortcomings in how Air Corps maintenance staff were protected from exposure to cancer-causing substances.

We also reported how, at the time, six former members who suffer a range of chronic illnesses, took High Court action against the State over what they said was a failure to train them properly on the dangers of the chemicals they used, or to provide them with adequate personal protective equipment.

These six former members had received the opinion of a toxicopathologist who linked their illnesses to their working conditions.

The Department has now confirmed that the number of cases has risen to eight, and this newspaper understands that a number of others are considering similar action.

In 2015, whistleblowers submitted a complaint to the Health and Safety Authority, who inspected conditions at Casement Aerodrome in Baldonnel and threatened legal action against the Defence Forces unless it made improvements in how Air Corps staff are protected from the effects of the toxic chemicals.

The Air Corps accepted the recommendations, implemented a year-long programme of improvements, and the HSA has since closed the case.

However, Sinn Fein Defence spokesman, Aengus Ó Snodaigh, said investigations need to take place as to the conditions in Baldonnel prior to the HSA inspection, and whether they had a detrimental impact on the health of Defence Forces staff.

He is tabling a motion calling for a Special Committee to conduct relevant hearings into the matter and conduct a health survey of former Air Corps staff.

Mr Ó Snodaigh said his motion has the support of his own party, along with Fianna Fáil, Labour, People Before Profit, and Independents and that he is confident he has the numbers to have it passed in the Dáil.

Responding to this motion, the Department said: “The issues, which are the subject of the proposed motion, were examined by an independent reviewer appointed by the Minister [Paul Kehoe]. The Minister is considering the next steps and legal advice in the context of ongoing litigation.”

Mr Ó Snodaigh said Mr Kehoe has had the report by the independent reviewer since 2017 and has yet to act on its findings:

“The indications I’ve had from conversations with the Minister and the Department is that they won’t act on some of the issues raised because of court proceedings, including some in this motion such as helping people with their medical expenses and medical cards.

These wouldn’t prevent the Government, if they wish, from defending themselves in court action. It is a logical step to take if there are clusters of people suffering unexplained ailments or groups of people dying.

“The health authorities should investigate that regardless of proceedings, there could be others out there not aware of why they may be suffering health problems.”

By Joe Leogue
Irish Examiner Reporter

A High Court ruling is good news for a large number of debtors appealing findings that their applications for court approval of personal insolvency arrangements were made out of time.

Mr Justice Denis McDonald’s ruling clarifies a provision of the Personal Insolvency Acts concerning court approval of a Personal Insolvency Arrangement (PIA).

He rejected arguments by a fund the Acts require that a debtor seeking court approval for a PIA must make, and serve, the proceedings within 14 days of a creditors meeting which had refused approval.

Instead, he granted an appeal by a debtor against a Circuit Court finding last October that the debtors’s application aimed at getting approval for his PIA was not “made” within the 14 day period provided for in Section 115A(2) of the Personal Insolvency Acts 2012-2015 (the Acts).

The judge disagreed with the Circuit Court the word “made” in that context also meant “served”.

The debtor owes a total sum of around €755,000 and 60.7 per cent of his creditors had voted in favour of the proposed PIA.

One creditor, Mars Capital Ireland DAC, owed some 40 per cent of the total debt, voted against the PIA.

Mr Justice McDonald noted a majority of secured creditors voted in favour of the PIA. However, when it came to unsecured creditors, Mars, holding 50.1 per cent of the unsecured debt, voted against while the other unsecured creditors voted in favour.

That created a situation where the debtor had to apply to court, under Section 115A(9), to approve the coming into effect of the PIA.

Section 115A provides such an application should be “made” not later than 14 days after the creditors meeting.

In the man’s case, the Section 115A(9) application was issued on December 19th within the 14 day period.

However, Section 115A(2) requires the application should be on notice to the Insolvency Service of Ireland, each creditor concerned and the debtor.

Service on creditors was effected by posting the notice of motion on December 22nd 2016, more than 14 days after the creditors meeting.

Mars ultimately argued in the Circuit Court the PIA was out of time because it was not “made” within the 14 days prescribed by Section 115A(2). It argued the application was not “made” until it was served.

The Circuit Court agreed the application could not be said to be “made” unless and until all of the parties had been served.

The debtor’s Personal Insolvency Practitioner appealed to the High Court and, in his judgment this week, Ms Justice McDonald allowed the appeal.

The judge noted the same issue has arisen in a substantial number of cases in the Circuit Court and his decision has implications for a “large” number of other appeals awaiting hearing.

He fully accepted the Oireachtas intended to create a “tight timeframe” for bringing an application under Section 115A.

This was clear from the 14 day period prescribed for making such an application and the fact the courts have no power to extend that time, he said.

However, it also appears clear from the 2012-15 Acts the Oireachtas specifically had in mind the making of an application could be achieved by bringing it to the court office, he said.

A consideration of Section 115A(2) and Section 140 of the Acts “strongly suggests” the Oireachtas did not contemplate the application would also have to be “served” on the notice parties before it could be considered to have been “made”, he said.

He concluded an application under Section 115A(9) for approval of a PIA is made once the application has been lodged in the relevant court office.

Section 115A(2) does not require that service be effected on the statutory notice parties within the 14 day period, he ruled.

Irish Times News

A €280,000 sum given to a husband and wife by their “dear” and “naive” friend was a loan sought by the wife with no specified repayment date and not an unsolicited “gift”, a High Court judge has ruled.

The “real tragedy” stems from the reaction of Jacqueline and John Keenaghan when Fidelma ‘Della’ Kerrigan sought repayment in 2014 of the loan made by her in August 2010, Ms Justice Deirdre Murphy said.

The €280,000 was one-third of a €750,000 compensation sum secured by Ms Kerrigan about two weeks earlier over serious personal injuries suffered by her in a road accident in 2002 in which her father died.

The judge accepted evidence of Della Kerrigan and her sister Celine that, in the months leading up to the settlement, Jacqueline Keenaghan, whose architect husband’s business was in serious difficulty due to the financial recession and who was very friendly with the sisters, broached the possibility of Della helping her out of the settlement proceeds and assured Della she would pay back “every penny”.

Ms Kerrigan had agreed in principle to help out her “dear friend” and Celine was an enthusiastic supporter of her sister’s decision to do.

Rather than acknowledge their debt, the Keenaghan’s chose to deny it and, thereby, “at least by implication”, cast doubt on the honesty of Della and her sister Celine, the judge said.

“It was Jacqueline Keenaghan’s denial of the true circumstances of this loan that ruptured this friendship,” she said.

“The Kerrigans saw this denial for what it was, an enormous breach of trust”.

There was no suggestion Della Kerrigan ever demanded immediate repayment of the full sum and the court was confident any reasonable proposal from the couple would have found favour with Ms Kerrigan even if spread over “many, many years”.

The Keenaghans could have made repayments from sale of lands and their earnings and it would “not have been unreasonable” for them to have asked their adult children, whose education had been “entirely funded” from Della Kerrigan’s money, to make some contribution.

Had they taken such steps, it was probable “this case would never have come to court.”

Even if she had found the €280,000 was a gift, she would have set that aside as an “improvident transaction” on foot of which the defendants had been “unjustly enriched” and it would be “unconscionable” to permit them to retain it, the judge stressed.

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The case has been adjourned to January 29 for final orders and to address cost and interest issues.

A Revenue official had given evidence there are income tax implications arising from receipt of an interest free loan.

Outside court, Ms Kerrigan, accompanied by family members and her solicitor Aisling McGowan, of Damien Tansey solicitors, said: “I’m glad it’s over.”

Ms Kerrigan (59), a single woman of Benildus Avenue, Ballyshannon, and her sister Celine, had told the court the money was offered as a loan after Ms Keenaghan, of Rathmore, Ballyshannon, sought money from them.

It was claimed she had told them she feared losing her home as her husband’s business was adversely affected by the 2008 financial recession.

Ms Kerrigan said the money was a loan which could be called in, allowing a reasonable period for the defendants to set up their new business. She sought repayment in 2014 but was not repaid and she is now on social welfare payments.

The Keenaghans denied the claims and insisted the money was a gift with the effect they had not failed to repay it.

Having assessed the evidence, Ms Justice Murphy was satisfied on the balance of probabilities Ms Keenaghan had, in the face of “impending financial disaster” for her family, pleaded with Ms Kerrigan for help and if that, if she was helped, the money would be repaid.

She was also satisfied, sometime between August 15 and 27 2010, the sum requested by Ms Keenaghan increased from €240,000 to €280,000.

The judge also said there was a “real possibility” that Ms Keenaghan never told her husband that she had asked for the money and promised to pay it back.

It was to John Keenaghan’s credit he had qualms about accepting the money despite the dreadful financial circumstances in which his family was in at the time but it was to his discredit he relented and agreed to accept a huge sum “grossly in excess” of the family’s liabilities, she said.

Those liabilities were in the region of €180-190,000. Out of the €280,000, the Keenaghan’s paid their bank debts of €83,282, repaid family loans and paid €10,000 into the account of their eldest son, who lives in the USA.

Some €20,000 went to finance their daughter Danielle’s return to college and money was also put aside to finance college expense of another son.

The balance was used to allow the couple train as counsellors and set up a counselling business. €88,000 also went towards paying a VAT and income tax liability of Mr Keenaghan.

The judge, who noted earlier the Kerrigan sister have had limited formal education, said Mr Keenaghan had been in business for 30 years and should have known Della Kerrigan should take advice before handing over a third of her settlement cheque to his wife.

By accepting this money, Mr Keenaghan was able to get two powerful creditors, a bank and the Revenue, “off his back” and replace them with a creditor who was “benign, generous, empathetic and, unfortunately for her in the circumstances of this case, naive and gullible”.

Source: Breaking News
By: Ann O’Loughlin

A farmer has agreed to comply with High Court orders to vacate 50 acres of land he owns.

The High Court heard today Tom Morrin will surrender vacant possession, remove all machinery and livestock from 50 acres of land at Caragh, Naas, Co Kildare owned by Mr Morrin to a bank-appointed receiver appointed over the property.

He has also agreed to cease interfering with agents of the receiver Mr Tom Kavanagh of Deloitte Ireland from carrying out their duties in respect of the property.

Mr Morrin appeared before the court after Ms Justice Leonie Reynolds ruled last week that she was “satisfied beyond reasonable doubt” Mr Morrin is in breach of orders made against him by the High Court in July 2017.

The judge in her judgment also dismissed applications by Mr Morrin of Poplar Square, Naas, Co Kildare, to have the receiver’s case thrown out, on the grounds it was frivolous, vexatious and an abuse of process.

The Judge further dismissed Mr Morrin’s bid for an order preventing Mr Kavanagh’s and his agents from trespassing on his property.

Ms Justice Reynolds was informed Mr Morrin had agreed to orders including that he would remove all machinery and livestock from the lands, and not interfere with the receivership.

He also undertook not to appeal last weeks decision and withdraw his appeal against the orders made against him in 2017.

It was also agreed that a stay is to be placed on those orders until February.

Previously the court heard that Mr Kavanagh was appointed as receiver over the lands in 2013 by Bank of Scotland Ireland arising out of a mortgage agreement alleged entered into between it an Mr Morrin in 2006.

The loan was subsequently acquired by a financial fund Pentire DAC.

The receiver then brought proceedings against Mr Morrin for his ongoing contempt seeking orders including that the farmer be attached and brought before the court for his alleged ongoing contempt of the 2017 orders.

Mr Kavanagh, represented by Stephen Byrne Bl, claimed the defendant had flouted the order, on which no stay has been placed.

Mr Morrin had remained in occupation of the property and continued to farm the lands, it was claimed.

It was also claimed that on a number of occasions security firm personnel engaged by the receiver had engaged difficulties.

On certain days cattle were seen on the lands and agents the receiver had employed were told to leave the property by a person purporting to be an employee of the defendants.

The matter will return before the court in February.

Author: Ann O’Loughlin
SOURCE: THE IRISH EXAMINER