JANUARY/FEBRUARY 1999 CONTENTS

14 Cover Story Last call for the sound of silence? REGULARS The proposal to remove a suspect’s right to silence marks another step in the continuing erosion of the fundamental principles of criminal law. Richard English argues that the legal profession must demand a quid pro quo if the proposal becomes law President’s message 3 16 Expert evidence: the new Viewpoint 4 rules explained The procedures for using expert evidence in personal injury Letters 11 litigation have been radically overhauled. The Law Society’s Litigation Committee sets out the main changes introduced by the new News 12 superior court rules and explains their implications for practitioners

Briefing 27 Council reports 27 18 Litigation and the Committee reports 30 Year 2000 What recourse do you have in law if Practice notes 32 your computer system is one of those Legislation update 33 affected by the so-called Millennium Personal injury Bug? Can you sue for compensation and, judgments 35 if so, whom do you sue? Denis Kelleher discusses the legal options arising out of ILT digest 36 this extraordinary problem Eurlegal 42

People and 22 Time for a rethink places 46 on small business? Small companies will be the focus of Book reviews 51 legislation which is due to be published over the coming weeks. Pat Igoe reports on what the Companies (Amendment) Bill, 1999 is likely Professional to contain – and what it probably won’t information 54 24 What can we do COVER PIC: ROSLYN BYRNE for you? The Law Society provides a wide range of services for solicitors above and beyond its familiar regulatory and representative roles. In the first of a series of articles, Member Services Executive Claire O’Sullivan explains what these services are and how they can help your practice

Editor: Conal O’Boyle MA The Law Society of Ireland can accept no responsibility for the accuracy of contributed Reporter: Barry O’Halloran articles or statements appearing in this magazine, and any views or opinions expressed are not necessarily those of the Law Society’s Council, save where other- Designer: Nuala Redmond wise indicated. No responsibility for loss or distress occasioned to any person acting Editorial Secretaries: or refraining from acting as a result of the material in this publication can be accept- Andrea MacDermott, Catherine Kearney ed by the authors, contributors, editor or publishers. Professional legal Advertising: Seán Ó hOisín, tel/fax: 837 5018, mobile: 086 8117116, advice should always be sought in relation to any specific matter. E-mail: [email protected]. 10 Arran Road, Dublin 9 Editorial Board: Dr Eamonn Hall (Chairman), Conal O’Boyle Printing: Turners Printing Company Ltd, Longford (Secretary), Mary Keane, Ken Murphy, Michael V O’Mahony Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4801. E-mail: [email protected] Subscriptions: £45 Volume 93, number 1

JANUARY/FEBRUARY 1999 LAW SOCIETY GAZETTE 1 Rochford Brady Legal Services Ltd

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ISO 9002 PRESIDENT’S MESSAGE Ringing the changes PIC: ROSLYN BYRNE

ne of my priorities for my year as can, and are, encountered in that traditional President is that the Law Society form of dispute resolution, I believe that a O should continue to enhance the many greater emphasis, use and promotion of arbi- services it provides to the solicitors’ profession tration as a vehicle of dispute resolution should (for more on this, see pages 26-27). Possibly be embraced. one of the most important initiatives in this The Law Society will develop and add regard will be the launch of the Society’s web arbitration modules to the new professional site this month. This is an exciting develop- course for apprentices, and we hope to have ment for the profession and will enable the the first of these in place by October 2000 in Society to add significantly to the information the new education centre. that the profession requires in an ever-devel- The Litigation and Arbitration Committee oping and vibrant economy. You will learn of the Society has exciting plans for develop- more about this over the next few weeks, but ing this area of practice for solicitors. for a sneak preview turn to page 13. Changes at the Law Society Council Grasping the euro opportunity At the end of last year, the Council of the As we move into 1999, change is inevitably in the air. We have already Society appointed the chairmen and members of the committees of the seen one of the most fundamental changes with the launch of the new Council to November 1999. A complete listing will appear in the new Law European currency, the euro, on 1 January. Ireland and the other ten par- directory, which will be with members of the Society shortly. ticipating countries are irrevocably fixed as to their currency conversion The majority of the solicitors’ profession is under the age of 40. rates. Under the EU principle of ‘no compulsion, no prohibition’, solici- Endeavouring to give a geographical and gender balance to the member- tors like other businesses are free to conduct business in euros. The pub- ship of the committees, and at the same time seeking to encourage new lic sector has already indicated its willingness to accept payments in the members to become actively involved, the Council, on my recommenda- new currency. Irish banks will convert your punt accounts into euro tion, amalgamated and merged the functions of a number of committees denomination, if you wish. and sub-committees. It is important that the solicitors’ profession remains at the driving edge Some of the committees in the past did not have any Council member of Irish business. During this year, you should familiarise yourself with the sitting on them. That was not desirable in my view. It has been rectified for new euro currency. this year. In January 2002, and it will quickly arrive, all Irish notes and coins will Seeking to avoid possible conflicts of interest and endeavouring to be withdrawn and the new euro notes and coins introduced. All business- ensure that the representatives of the Society have a nexus and direct es that will not have already done so must convert to the new currency and connection with the democratically elected Council of the Society, I have it adopted in its accounting operations. The Law Society will not be proposed a number of changes. The representative of the Society to the behind in this regard. The Solicitors’ Accounts Regulations will be International Bar Association (IBA) is Laurence K Shields (last year’s changed to reflect the euro era. President) who will serve for a period of four years in succession to As society develops, there are ever-increasing regulations, directives, Maurice Curran, a former President, who was the Society’s representa- statutes and rules to comply with. You will have received your application tive for ten years; Geraldine Clarke, a former Junior Vice-President, for a practising certificate for 1999. It is a long document that takes care- will represent the Society for the next three years at the CCBE; James ful completion and consideration. There are good reasons for this. McCourt (Dublin) and Donald Binchy (Clonmel) will represent the Contrary to what some members of the profession might think, the Law Society on the Arbitration Committee of the International Chamber of Society was not the author of the Investor Compensation, Act, 1998 which Commerce in succession to Maurice Curran and Walter Beatty (Snr) has imposed additional requirements on all solicitors. The EU directives who ably served the profession for many years thereon. relating to the provision of investment services apply to solicitors as they I have also established a ‘Council Development Review Group’ under do to others, hence the necessity of including an additional section in the the chairmanship of the Senior Vice-President, Anthony Ensor, to seek to application form this year. explore ways of encouraging more active participation by the ever-grow- The European experience has been good for Ireland and for the solici- ing number of members of the profession at Council and on its commit- tors’ profession. We live in exciting times: grasp the opportunity and make tees. the most of it. President John F Kennedy said: ‘Change is the law of life, and those who look only to the past or present are certain to miss the future’. I believe that Alternative dispute resolution the solicitors’ profession in general does embrace and accept the need for This country has enacted the Arbitration Act. Facilities for arbitration, change. conciliation, mediation and alternative dispute resolution are readily avail- Go m’beimidh beo ar on am seo arís! able in Ireland. The solicitors’ profession has sometimes been slow to understand and realise the value of arbitration both in domestic and inter- Patrick O’Connor national disputes. With the rising cost of litigation and the difficulties that President

JANUARY/FEBRUARY 1999 LAW SOCIETY GAZETTE 3 VIEWPOINT European challenges to Ireland’s tax regime

uch has been written in Community directives by quali- Mrecent months regarding fied majority. taxation and European Second, under article 100 of the Community law, giving the EC treaty, tax legislation can nor- impression that we are embarking mally only be adopted by the on a journey through a legal and Council acting unanimously. The political minefield which can German government is currently only result in the Irish tax system president of the Council and has being blown to pieces by the stated that one of its priorities for European Commission. the next six months is the adoption As is so often the case when of at least some new legislation on politicians and journalists try to this basis. In the long term, it must tackle legal subjects, much of the make sense for corporation tax to comment has been grossly inac- be based on similar concepts curate. The Germans are not in a throughout the European Union. position to dictate the upward That, however, does not lead inex- movement of Irish corporation orably to the conclusion that all tax tax rates, the Commission cannot rates must be harmonised. Indeed, abolish Ireland’s favourable tax that is probably not even a desir- regime, the internal market does able outcome from a competition not require the adoption of tax point of view. rules by qualified majority If the requirement of unanimity voting, and monetary union does is to be altered, then there will not inevitably require total tax have to be an amendment to the harmonisation. Nevertheless, treaty, which itself requires the European law does have an unanimous agreement of the increasingly important role to Member States. The real question play. to be asked is whether it is desir- able that tax legislation be adopt- Relaxed attitude Ireland’s International Financial Services Centre: recipient of ed by a majority vote. The present In so far as tax rules constitute a ‘tidy subsidiary’ German government obviously state aid, they are subject to thinks it is. Others have different supervisory control by the Centre must be seen. Double rent With the dawning of the new views. In any event, this is a polit- European Commission in accor- relief (that is, the ability to deduct age of monetary union, there are ical, not a legal, question. dance with articles 92 and 93 of rental payments twice in order to legitimate concerns throughout Finally, however, there is the the EC treaty. Favourable tax arrive at taxable income) gives a the Community that, with interest fallback provision of article 101 rules which operate to reduce the tidy subsidy for those subject to rates and exchange rates no of the EC treaty which provides tax burden on specific sectors or 10% corporation tax. For those longer tools of national economic that a directive may be adopted by persons constitute state aid, lawyers and accountants paying management, differential tax sys- a qualified majority of the Council although a general low level of 46% income tax on partnership tems will be used to distort com- where national law distorts the tax applicable to all taxpayers income, it is a much more gener- petition. What, then, under the conditions of competition in the without distinction does not. State ous aid. present provisions of the EC common market and there is a aid is incompatible with the com- From the point of view of the treaty can the Commission and need to eliminate that distortion. mon market and is prohibited common market, state aid should the Council do? So it is not inconceivable that unless it has been approved by the only be regarded as a problem in some Member States could argue Commission in advance. so far as it has a distorting effect Little direct impact that Ireland’s unusually low rate Hitherto, the Commission has on competitive investment as Firstly, the rules of the internal of corporation tax, even if not a taken at times a relatively relaxed between Member States. So the market are of only marginal inter- state aid, could distort investment attitude to state aid and initially granting of aid to law firms in the est. Apart from requiring national competition and needs to be elim- approved the special Irish zero- IFSC is not likely to worry the tax rules to be applied in a non- inated. Politically, this is highly rate corporation tax regime for Germans. But the granting of aid discriminatory manner to goods, unlikely. G exports and, subsequently, the to internationally-mobile opera- persons, services and capital from 10% rate for the manufacturing tors, such as investment banks, is other Member States, the internal Conor Quigley is a barrister industry. a different matter. The market provisions of the treaty practising at Brick Court It is in this context that the tax Commission is therefore likely to have little direct impact on tax Chambers, London and Brussels, breaks for tenants in the take a tougher attitude to state legislation, and certainly do not and specialising in European International Financial Services aids in the future. provide for the adoption of Union law.

4LAW SOCIETY GAZETTE JANUARY/FEBRUARY 1999 VIEWPOINT The case for separate legal representation for rape victims

ape, in the definition of Mr the distress creates an experience cedures relating to rape, and their RJustice Finlay, the former of re-victimisation. Many victims impact upon victims of rape, in Chief Justice, ‘is a gross attack have not only felt disempowered the 15 Member States of the EU. upon the human dignity and the and humiliated as a result of their This is a summary of the expe- bodily integrity of a woman and a treatment; they have expressed riences of Irish participants when violation of her human and con- anger and betrayal at the compared with the experiences of stitutional rights’. A trial for rape, appalling attrition and conviction participants from the other four in the experience of many of the rates in these cases. Victims of selected Member States, victims, is something not very rape and sexual assault suffer Belgium, France, Denmark and different: a second ordeal, repli- greater and more persistent psy- Germany. The study found that cating and often intensifying the chological and social effects than Irish participants: trauma of the original abuse. The any other group of victims of vio- 1. Rated the attitude of the chief very small percentage of rapes lence. police interviewer significantly reported to the authorities is The Dublin Rape Crisis more positively directly attributable to the fear on Centre has been consistently and 2. Reported feeling significantly Olive Braiden: ‘separate legal the part of women of a legal strongly critical of the demon- representation would provide less confident when testifying process that they perceive to be strable inadequacies of a system much-needed support’ 3. Reported feeling less articulate confrontational, humiliating and which can produce such feelings when testifying ultimately unjust. of isolation, vulnerability and tributed significantly to encourag- 4. Rated the defence lawyer as These fears derive directly even guilt on the part of the rape ing prosecutions which otherwise more hostile from the inadequacies of a system victim; and it is convinced that might not have been brought. 5. Rated the trial judge as having which continues to deny a rape this is rooted in the injustice of While we must treat with due a more positive attitude victim separate legal representa- denying the victim separate legal caution the assumption that what towards them tion, to treat her simply as chief representation. Such representa- is working well elsewhere would 6. Reported that involvement in witness in the case the State is tion has been introduced in other be equally efficacious in this the legal process had a signifi- bringing against the accused. It is jurisdictions with conspicuous jurisdiction, given the cultural cantly more negative effect on possible that she will not have success. In Denmark, for exam- and legal differences, the Dublin their family life when com- met the barrister representing the ple, research has shown that it Rape Crisis Centre, after very pared with the reported effect prosecution, nor will she have on the family life of partici- access to the Book of Evidence. ‘The processing of rape and sexual pants from the other four She has no right to request the selected Member States calling of particular witnesses. It assault cases through the criminal 7. Perceived the legal process as is the role of the defence counsel justice system exacerbates rather than significantly less fair to try to ‘win’ the case by show- 8. Reported feeling significantly ing up the witness – who is not on alleviates the devastating effects of more negative about having trial – in the worst possible light. the crime on the victim’ been involved in the legal His task (and the defence barrister process, and finally is almost invariably male) is to has done more to improve the careful study and consideration, 9. Reported being significantly use every means available to dis- system of dealing with sexual remains totally convinced that less satisfied overall with the credit the complainant. The vic- assault than any alteration in the separate legal representation for legal process. tim must relive her rape, in every substantive criminal law or rules complainants in rape and sexual intimate detail, before a court- of evidence. In Norway, the sys- assault cases would provide The Minister for Justice, John room of strangers and in the face tem is also working well, despite much-needed support. This would O’Donoghue, is of the view that of the defence lawyer whose task initial opposition from the also render the trial process con- complainants in rape trials should is to prove she is a liar. It is no Association of Norwegian siderably less traumatic, and be entitled to separate legal repre- wonder that rape victims have fre- Lawyers. would encourage women to sentation when being cross-exam- quently described the experience Separate legal representation report rapes without the fear of ined on their previous sexual his- of such cross-examination as successfully provides support for the legal process intensifying tory because the court is dealing aggressive, offensive and degrad- the complainant, while the mere their distress. with an issue which may affect ing. presence in court of a lawyer act- Last year, the Dublin Rape certain constitutional rights. The reality of the present sys- ing on her behalf has been suffi- Crisis Centre initiated a research The Dublin Rape Crisis Centre tem is that the processing of rape cient to ensure that she is fairly project (with the support of the welcomes this first step towards and sexual assault cases through treated. Lengthy cross-examina- EU Grotius Programme) carried full legal representation for rape the criminal justice system exac- tions are no longer the norm, and out by the School of Law at victims, male and female. G erbates rather than alleviates the victims are becoming more will- Trinity College, Dublin. The aim devastating effects of the crime ing to testify in court. These of the project was a comparative Olive Braiden is Director of the on the victim and by intensifying developments have also con- analysis of the laws and legal pro- Dublin Rape Crisis Centre.

JANUARY/FEBRUARY 1999 LAW SOCIETY GAZETTE 5 Designing a courts syste

How the blueprint was written for historic changes in the courts

Following the final meeting of the Working Group on the Courts Commission recently, a dinner was held for all who had served as members for some or all of the three-year period of the working group together with those who had at various times acted as research assistants to the group. Pictured here are (front row, from left): Laura Rattigan BL, research assistant; Mr Justice Ronan Keane, Supreme Court; Mr Justice Robert Barr, High Court; Mrs Justice Susan Denham, Supreme Court, chairperson of the working group; Mr Justice Anthony J Hederman, former Supreme Court judge and chairman of the Law Reform Commission; Ken Wright, management consultant; Roísín McDermott, chairwoman of Women’s Aid. Second row (from left): Mr Justice Esmond Smyth, President of the Circuit Court; Cormac Cronin, Department of Finance; Ken Murphy, Director General of the Law Society; Mrs Justice Catherine McGuinness, High Court. Third row (from left): Noel Synnott, Department of Justice; Kevin Duffy, Deputy Chairman of the Labour Court; Caitlín Ní Fhlaitheartaigh, Office of the Attorney General; Mr Justice Kevin O’Higgins, High Court. Fourth row (from left): Garret Simmons BL, research assistant; John Rogers SC. Back row (from left): Eanna Hickey BL, research assistant; Marie Ryan, Department of Justice; Caoihmín O’hUiginn, Department of Justice; David Herlihy, research assistant; Sinead Ryan BL, research assistant; Colm Breslin, Department of Finance

n response to the Minister ‘The courts in Ireland have an the most important and satisfying information and access to court for Justice, this group is air of the 19th Century about them. committee work in which I have documents; family law; court sit- ‘Imaking an historic recom- Our task is to design a courts sys- ever been engaged. I believe that tings and vacations; and judicial mendation. It is proposing a tem appropriate to the 21st the above challenge was met. conduct and ethics. development of Government to Century.’ This was the challenge The sixth and final report of the In the three years since the then complete a process commenced in put three years ago to the newly- working group was presented to Minister for Justice, Nora Owen, the 1920s. It is a radical docu- formed Working Group on a the Minister for Justice, Equality addressed the first meeting of the ment suggesting changes which Courts Commission by its chair- and Law Reform, John working group on 2 November will make justice more accessible person, Mrs Justice Susan O’Donoghue, by Judge Denham 1995, many well-researched and to the people.’ – Extract from Denham of the Supreme Court. on 25 November 1998. This argued ‘radical documents’ were foreword to First Report of I had the honour to be nominat- report, which has yet to be pub- produced by the working group. Working Group on a Courts ed by the Law Society as a mem- lished by the Minister, deals with That these documents have also Commission. ber of the working group. It was four separate issues, namely: proved ‘historic’ is because both

6LAW SOCIETY GAZETTE JANUARY/FEBRUARY 1999 VIEWPOINT em for the 21st century

Minister Owen and her successor The idea of transferring the Monday morning meeting. Minister O’Donoghue were not management of the courts to an Another feature of the working prepared to let the reports gather independent agency was not a new group’s approach was to consult dust and be forgotten. The reports’ one. The courts agency model is and listen to everyone concerned. recommendations were accepted now followed in most common- Submissions were invited from and acted on at Government level, law countries around the world. anyone likely to have even the with legislation introduced where Indeed, the Courts Service of least insight or ideas to offer us necessary to give effect to them. Northern Ireland was set up as far based on relevant experience. All The most radical and far-reach- back as 1979. In 1993, what broad- those likely to be affected by rec- ing of these changes will become a ly speaking has now come to pass ommendations which the working reality later this year when the for- here was called for in a document group might make were invariably mal transfer of power over the prepared jointly by the Law asked to make written submissions management of the entire courts Society and the Bar Council. followed, more often than not, by Mrs Justice Susan Denham system takes place. The A strong political impulse in chaired the working group opportunities to meet, present to Department of Justice, where this support of such a policy arose from and answer questions from the power has largely resided since the events touching on the courts the Judges’ Library in the Four working group. Representatives of foundation of the State, will hand it which contributed to the fall of the Courts. some particularly-affected interest over to the new independent then Government in November Characteristic of our approach groups met the working group on a agency of the State known as the 1994 and the formation the follow- was in-depth research which number of occasions to express Courts Service. From that date ing month of the Rainbow involved reviewing in detail rele- their views or concerns. onwards, policy and primary Coalition. The new administration vant experiences in many other Literally hundreds of submis- responsibility for management of included in its Agreement for countries with a particular focus on sions were received during the the courts will reside not with any Government the objective of the United States, Canada, three-year period. Every submis- Government Minister but with the ‘establishing a commission on the Australia and the United Kingdom. sion was copied to all members 17-member board of the Courts management of the courts as an Working group members would and specifically considered at a Service chaired by the Chief independent and permanent body frequently spend hours on a meeting of the working group. Justice. with financial and management Sunday evening reading the latest Debate within the working autonomy’. batch of papers in advance of the group was invariably well User-friendly courts Minister Owen proceeded to The result, provided the project is establish a working group compris- properly financed, will be the cre- ing representatives of the major ation of a coherent management groups involved with the courts. ORIGINAL MEMBERSHIP OF THE structure together with a modern, The Law Society was unhappy that WORKING GROUP ON A COURTS professional managerial approach the solicitors’ profession, by far the COMMISSION to matters such as financial control, largest body of direct users of the (as appointed in November 1995) human resources, information tech- courts system, was offered only nology and other standard features one nomination to a working group Mrs Justice Susan Denham, John Rogers, Senior Counsel of a well-run and successful organ- which would be dominated by Judge of the Supreme Court Róisín McDermott, Chairwoman isation in today’s world. members of the judiciary. Mr Justice Ronan Keane, of Women’s Aid Over time this should produce a However, I was given the honour Judge of the High Court Kevin Duffy, Assistant General much more efficient, effective and of nomination by the Council to Judge Kevin O’Higgins, Secretary, Irish Congress of user-friendly courts system, deliv- represent the solicitors’ profession. Judge of the Circuit Court Trade Unions ering an enormously improved The principles which would Judge Catherine McGuinness, level of service to the Irish people. guide the work of the group were Judge of the Circuit Court Departmental The elimination of delays must be a put in place from the beginning by Judge Peter Smithwick, representatives primary objective, proper court- Judge Denham. It was quickly President of the District Court Caoimhín Ó hUiginn, house facilities another. Such established that collectively and Mr Justice Anthony J Hederman, Department of Justice developments can represent noth- individually we were expected to Chairman of the Law Reform Colm Breslin, Department of ing but good news for all users of work hard and at a considerable Commission Finance the courts system. pace. It was decided that meetings Ken Murphy, Director General Richard Barrett, Attorney The focus of this article, howev- would take place not once a month of the Law Society General’s Office er, is not on the working group’s or even once a fortnight but once a James Nugent, Senior Counsel, various reports and policy recom- week. Accordingly, for the next Chairman of the Bar Council Secretariat mendations but on the group itself, three years, a meeting took place Ken Wright, management Noel Synnott, Department which devised the blueprint for every Monday morning during the consultant of Justice these changes. law terms. Meetings were held in

JANUARY/FEBRUARY 1999 LAW SOCIETY GAZETTE 7 VIEWPOINT informed, serious and vigorous. introduction of an information desk enough – was invested in improv- The chairperson always sought to in the Four Courts building as a WORKING ing courthouses around the country. achieve consensus. She skilfully first step towards a new culture of However, the working group did defused anything potentially con- communication and service orien- GROUP not allow those improvements to tentious, listened carefully and tation within the courts. PUBLICATIONS deflect it from pressing for funda- courteously to every point of view, In the latter respect, we look for- mental changes such as were at last and summed-up with subtlety and ward to such hitherto undreamt of First report achieved with the passage into law balance. She then undertook the developments as annual reports on Management and financing of the Courts Service Act, 1998. enormous burden of producing the courts and a courts information of the courts, April 1996 There were changes within the first drafts to the group’s very officer to deal with the media. Second report working group also, often caused detailed reports. Such was the trust Even though most members of Case management and court by the elevation to higher courts of and respect she enjoyed from the working group thought them- management, July 1996 some of the judges. Mr Justice members of the working group selves to be already familiar with Third report Ronan Keane went from the High that where she expressed a firm the courts system, we were fre- Towards the courts service, Court to the Supreme Court, both view on a particular topic the quently shocked by how bad condi- November 1996 Mr Justice Kevin O’Higgins and working group usually followed it. tions really were. Our reports spoke Fourth Report Mrs Justice Catherine McGuinness The achievements of the working bluntly of there being no clear man- The chief executive of the rose from the Circuit Court to the group are due more than anything agement or reporting structures, a Courts Service, March 1997 High Court, and His Honour Judge else to Judge Denham’s vision, fragmentation of the administration A Working Paper Esmond Smyth was appointed energy and determination. system between each of the courts, Conference on case manage- President of the Circuit Court. By far the most satisfying little or no training and develop- ment, May 1997 Two of the most active members aspect of involvement with this ment of staff or application of mod- A Working Paper of the working group were non- working group was seeing our rec- ern information technology, crisis A working paper on informa- lawyers. One was Kevin Duffy, the ommendations consistently management in many offices and a tion and the courts, Assistant General Secretary of the accepted by Government, and not lack of financial information or sta- November 1997 Irish Congress of Trade Unions, only accepted but acted upon. tistics. Fifth report whose advice was invaluable on The working group knew the Drug courts, February 1998 the many matters raised with us by Things happened power of an example and highlight- Sixth report trade unions representing various Things happened, whether it was ed the situation in the Accountant’s ● Information and access to grades of staff within the courts (a) the establishment of the Courts Office where a staff of ten managed court documents service. The management consul- Service with the implementing investments in excess of £300m ● Family law tant Ken Wright devoted so much legislation precisely following the operating a manual accounting sys- ● Court sittings and vaca- of his time and professional exper- design recommended by the work- tem with letters typed on a type- tions tise to the working group that he ing group, or (b) the recommenda- writer which was missing two ● Judicial conduct and ethics was retained on a consultancy basis tion that appointment to the presi- keys! November 1998 – not yet pub- to guide the massive exercise in dency of benches be for seven The working group was also lished change management in which the years (in place of appointments very genuinely and deeply courts are currently engaged. until retirement which had been impressed by the courts staff at all The final meeting of the work- the case up to this), which recom- levels who made remarkable ing group took place on 27 mendation became law in the efforts to deliver a worthwhile working group was engaged in the November 1998. It has now com- Courts (No 2) Act, 1997, or (c) the service despite the totally inade- various tasks which were set for it pleted its work. Its legacy is the establishment of a Drug Court quate resources which had been by the successive Ministers. Many blueprint for a courts system appro- Planning Committee to prepare made available to the courts sys- new judges were appointed, which priate to at least the beginning of plans for a drug court pilot project tem since the foundation of the contributed directly to a substantial the 21st Century. G in the District Court due to com- State. reduction in the level of delays in mence within the next few months A number of things changed the courts. Much more money than Ken Murphy is Director General or, at the simplest level, (d) the during the three years in which the previously – although still not of the Law Society of Ireland.

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Letters

Civil legal aid and ‘disposable income’ Your views From: Katherine Killalea, ients of legal aid or advice’. aid on a salary last year of Your letters make your Castlebar, Co Mayo It may interest your readers to £23,379. This eligibility would be magazine and may influence n a commentary on the short- know that many of them would for a family law matter where my your Society. Send your letters to the Editor, comings of the civil legal aid qualify for legal aid and that I per- spouse’s income or capital would I Law Society Gazette, scheme, Ann Fitzgerald (Gazette, sonally, as a solicitor qualified for not be taken into account. Blackhall Place, November 1998, page 4) noted 17 years and on the top point of However, the calculation of Dublin 7, or you that ‘the means test continues to the salary scale for a Grade A disposable income is such that can fax us on allow only those on a very low solicitor with the Legal Aid somebody on half my salary 01 672 4801. “disposable” income to be recip- Board, would be eligible for legal might not be eligible for legal aid.

Dumb and dumber From: David Williams, Ahern ● While I was on a long-distance she was home now and wanted Case 2 Roberts Williams & Partners, Cork call, the applicant took out a my phone number. I called secu- The solicitor was representing a he following was obtained copy of Penthouse and looked rity client who had seriously assaulted Tfrom the Internet. It claims through the photos, stopping ● Pointing to a black case he car- his victim because the latter had to be the actual replies of exec- longest at the centrefold ried into my office, the candi- passed extremely derogatory utives and personnel managers ● During the interview an alarm date said that if he was not hired remarks about his girlfriend. The in 100 major American corpora- clock went off in the candidate’s the bomb would go off. judge intervened and commented: tions who were surveyed for brief case. He took it out, shut it Disbelieving, I began to state ‘It is all very well, Mr A, but would stories of unusual behaviour by off, apologised, and said he had why he would never be hired you like it if someone passed such job applicants. The lowlights to leave for another interview and that I was going to call the comments about your wife or your were: ● A telephone call came in for the police. He then reached down to girlfriend?’ to which the solicitor ● The applicant stretched out on job applicant. It was from his the case, flipped a switch and responded: ‘Or worse, judge – the floor to fill out the job appli- wife. His side of the conversa- ran. No-one was injured but I did both’. cation tion went like this: ‘Which com- need to get a new desk. ● She wore a walkman and said pany? When do I start? What’s From: Frank Taaffe, Francis B Taaffe she could listen to me and the the salary?’ I said: ‘I presume From: Jim Brooks, Collins Brooks & & Company, Kildare music at the same time you’re not interested in conduct- Associates, Cork he following is a line from a ● The applicant asked to see the ing the interview any further’. t two recent sittings of the Tdraft civil bill received in the interviewer’s résumé to see if He promptly responded: ‘I am as ADistrict Court in a Cork post from an eminent barrister. The the personnel executive was long as you’ll pay me more’. I District Court area, the follow- young lady who suffered injuries in qualified to judge the candi- didn’t hire him, but later found ing took place: the car accident was described in date out there was no other job offer. Case 1 the particulars of injuries as follows: ● When I asked him about his hob- It was a scam to get a higher The solicitor was applying for a spe- ‘She was frantic when she realised bies, he stood up and started offer cial exemption order and part of she was not dead’. tap-dancing around my office ● His briefcase opened when he the proofs was to provide evidence ● At the end of the interview, picked it up and the contents that a substantial meal was being Jim Brooks wins the bottle of champagne while I stood there dumbstruck, spilled out, revealing ladies’ offered to the patrons attending this month he went through my purse, took undergarments and assorted the function. On presentation by out a brush, brushed his hair, make-up and perfume the applicant’s solicitor of the menu A bottle of the finest champagne and left ● The candidate said he really did- confirming a meal of chicken curry, will go to the reader who sends in the funniest contribution to Dumb ● The applicant pulled out a n’t want to get a job, but the the judge commented that in his and dumber each month. Polaroid camera and snapped a employment office needed view what was on offer did not flash picture of me. He said he proof that he was looking for comprise a substantial meal. The Send your examples of the wacky, collected photos of everyone one solicitor replied: ‘With every weird and wonderful to the Editor, Law Society who interviewed him ● The candidate asked who the respect, judge, there are 100 million Gazette, Blackhall Place, ● The applicant said he wasn’t lovely babe was and pointed to Indians out there who would not Dublin 7 or you can fax us interested because the position the picture on my desk. When I agree with you’. Needless to say, on 01 672 4801. paid too much said it was my wife, he asked if the application was granted.

JANUARY/FEBRUARY 1999 LAW SOCIETY GAZETTE 11 NEWS New Minister to publish report on Education Centre on judicial appointments

course he Minister for Justice, On the working group, the Law he Taoiseach, Bertie Ahern, TEquality and Law Reform, Society was represented by the Thas agreed to formally lay the John O’Donoghue, has confirmed Director General Ken Murphy and foundation stone for the Law that he is in the course of applying Council members Geraldine Society’s new £5m Education to Government for formal permis- Clarke and Ernest Cantillon. The Centre later this year. This project sion to publish the Report of the three Bar Council representatives to construct a state-of-the-art cen- Working Group on Qualifications were Garrett Cooney SC, Mary tre for the professional training of for Appointment as Judges of the Finlay SC, and Turlough solicitors, both pre and post-qual- High and Supreme Courts. The O’Donnell SC. The majority of ification, was approved by 76% report, which was submitted to the members of the working group, of voters in a postal poll of the Minister on 30 September 1998, is however, were non-lawyers and entire solicitors’ profession last therefore likely to be publicly included such independent-mind- October. available shortly. ed individuals as the Director of Since then, the project has The working group was estab- Consumer Affairs, a member of been proceeding with all possible lished in December 1996 by the the Competition Authority and speed. Demolition and site clear- then Minister for Justice Nora Director General Ken Murphy: academics whose role was to ance will start next month, and Owen to consider and make rec- ‘Publish and put an end to the examine this issue in the public the construction work proper will ommendations on the whole issue rumours’ interest. begin in June. The target date for of the qualifications required to Commenting on the news that completion is June 2000, with the be eligible for appointment to the As opposition spokesman the report would be published first students starting the re- High and Supreme courts. This on justice in 1995, John shortly, Ken Murphy said: ‘We designed professional course in had arisen out of the controversy O’Donoghue supported the would like to see it published September 2000. at the Dáil Committee stage of amendment to the Bill put down soon, if only to put an end to The Society expects to be in a the Court and Court Officers Bill, by Alan Shatter TD, seeking to rumours about its contents. Until position very shortly to announce 1995 when the Law Society had make all solicitors eligible for published, it remains confidential special arrangements which are lobbied to have eligibility for appointment as judges of the and we can make no comment on being put in place for the inter- appointment to the High and High and Supreme courts. it other than to confirm that vening period with a view to Supreme courts extended to all Minister Owen would not accept the report was signed by the eliminating the current backlog of solicitors and not merely to the amendment but agreed to Law Society representatives. students waiting to begin profes- senior barristers, as remains the establish a working group to Obviously, therefore, we were sional courses. position. look into the matter. happy with it’.

New Courts Service Compensation Fund payouts

boss takes over The following claim amounts were admitted by the Compensation he first chief executive of the (46), will steer through the most Fund Committee and approved for payment by the Council at its Tnew Courts Service took fundamental reforms of the Irish meeting in December 1998: Conor McGahon, 19 Jocelyn Street, office last month. Former Eastern courts since the foundation of the Dundalk, Co Louth – £1,639.30; John K Brennan, Mayfield, Health Board boss, PJ Fitzpatrick State. Enniscorthy, Co Wexford – £9,000; Michael Owens, 5 Lower Main The Law Society expects to Street, Dundrum, Dublin 14 – £323. have a good working relationship with Fitzpatrick, according to Director General Ken Murphy. Liam O’Connor and Denis O’Sullivan ‘We are delighted that PJ Fitzpatrick was a guest of the Law e carried an article in ing the Hanahoe’s premises. Society for lunch on his third day WDecember 1997 on the We wish to make it clear that in office as chief executive of the decision of Mr Justice Kinlen in the photograph in question was Courts Service, and that he enthu- the proceedings brought by used for illustrative purposes only siastically recognised that the Michael E Hanahoe & Co fol- and that we did not intend to link solicitors’ profession is one of the lowing a search on their offices Detectives O’Connor and most important users of the by An Garda Síochána. The arti- O’Sullivan to the subject matter courts’, said Murphy. ‘It was an cle was illustrated by a photo- of the article. We apologise to excellent start to our relationship graph of Detective Liam Detectives O’Connor and New Courts Service Chief Executive and we look forward to working O’Connor and Detective O’Sullivan for any distress or PJ Fitzpatrick closely with him’. Sergeant Denis O’Sullivan leav- embarrassment caused.

12 LAW SOCIETY GAZETTE JANUARY/FEBRUARY 1999 NEWS

Society’s new web site goes on-line BRIEFLY he Law Society’s new web Law Society Tsite will feature a multi-page Annual Conference tour around its functions and The Law Society’s 1999 Annual activities when it is re-launched Conference will be held at this month. The site will replace a Ashford Castle, Cong, Co Mayo, more basic model first put up on from 6-9 May. Enquiries in writ- the Web last year and has a wider ing to the Law Society, Blackhall remit than its predecessor. Place, Dublin 7 (DX 79). Member Services Executive Claire O’Sullivan said the new Software name site will have a dual focus, first to change crops up educate and inform the general Rodine Software, developers of public about the Society’s work, legal management accounting and second to act as the primary package Ro-Law, has changed source of communication with its company and product name. members regarding the Society’s The Waterford-based company activities and functions. is now known as Harvest The site will be structured Software and its package has around the Society’s committees, tion with the public and members. as an indispensable source of been re-christened Harvest Law. each of which will have its own ‘The Law Society is committed to information and advice in the con- page outlining its activities, pro- the promotion and development duct and management of their O’Hagan appointed to jects and publications. It will pro- of the web site as a cost-effective practices’, she says. Special Criminal Court file the Society, its building and and efficient method of communi- The web site address is Circuit Court Judge John personnel, as well as detailing its cating with the profession and the www.lawsociety.ie, and the web O’Hagan has been appointed history. An outline of the Society’s public at large, and we hope that master will be delighted to receive to the Special Criminal Court. regulatory and educational func- over time all members will be members’ comments and feed- O’Hagan was called to the Bar tions will also feature alongside encouraged to regard the web site back at [email protected]. in 1961 and was a member information on the library, details of the Eastern Circuit for 26 of member services and (of years. course) on-line articles from the latest issue of the Gazette. Medico-legal fees revised Solicitors go high tech A key feature will be the he fees paid to medical consultants for examinations, reports, Over 27% of Irish solicitors have ‘what’s new’ page, with updates Tconsultations and court appearances have been revised. The fol- access to e-mail in their prac- of professional information for lowing fees apply from 1 January 1999 to 31 July 2001: tices according to a new survey members, details of upcoming Examination and first report from Ivutech, the practice man- events and activities, lists of future ● Standard...... £155 agement software developer. seminars and courses, and up-to- ● Psychiatrist’s ...... £171 According to Ivutech’s Aidan the-minute recruitment vacancies. Follow-up report O’Neill, the vast majority of O’Sullivan says that this part of ● Standard...... £137 users are using LawLink’s the site will be regularly updated. ● Psychiatrist’s ...... £149 SecureMail system (which has After its initial launch, the site Attendance at court (to include consultation with counsel on day been endorsed by the Law will be further developed by of hearing if necessary) Society as the industry stan- adding a member-specific area ● Half day (am or pm) ...... £382 dard), with the remainder which will allow members to ● Full day ...... £519 being split between Telecom trawl the library catalogue and Consultation with counsel other than on day of hearing Éireann, Ireland On-line and download practice notes and ● At consultant’s rooms ...... £105 CompuServe. precedents. This will be accessed ● At court ...... £155 by members using their own PIN Consultation with another party’s medical adviser Free AmEx membership! code. ● By telephone ...... £32 American Express is offering Eventually the site will include ● By correspondence...... £65 free card membership and 500 interactive mailing facilities, e- ● By attendance at examination ...... £91 bonus points in a loyalty pro- commerce and an e-mail alert to Standby fees gramme for Law Society mem- advise members of existing and For standby within 20 miles of consultant’s hospital: 25% of appro- bers this month. The cards have proposed legislative and policy priate attendance fee. For standby for a court more than 20 miles no pre-set spending limit and changes. The Society hopes to from consultant’s hospital: 50% of appropriate attendance fee. also offer benefits such as expand links with other sites of Court attendance cancellation £500,000 medical insurance and interest to members and to encour- Cancellation within two working days will attract full court atten- purchase protection. To qualify, age other organisations to hook dance or standby fee, as appropriate. Cancellations advised more just fill out the form included into its site. than two working days but less than five working days will attract with this month’s Gazette and O’Sullivan predicts that the site 50% of the court attendance or standby fee, as appropriate. return it by Friday 5 March. will be used to boost communica-

JANUARY/FEBRUARY 1999 LAW SOCIETY GAZETTE 13 The proposal to remove a suspect’s right to silence in the face of Garda interrogation marks another step in the continuing erosion of what were once regarded as fundamental principles in criminal law. Richard English discusses how a similar regime operates in the UK and argues that the legal profession must demand a quid pro quo if the proposal becomes law

he treatment of Veronica Guerin murder suspect Paul Ward by members of An Garda Síochána in Lucan Garda Station was severely criticised by the Special Criminal Court. While Ward was subsequently convicted of the journalist’s murder, the court’s criticism centred on the way the suspect was Tinterrogated. Meanwhile, the Minister for Justice wants to alter the pro- tection from self-incrimination that a detained person has while being questioned. Should we, as lawyers, be content to see the implementation of these changes in the current regime of legal representation for suspects in custody? When an accused person is put before a court, he or she is asked to Last ca plead guilty or not guilty. A plea of not guilty puts the burden of proof on Last ca the State, for it is up to the State to prove beyond a reasonable doubt that an accused is guilty – the defendant does not have to prove anything. The onus of proof is on the State; the Golden Thread principle so often quot- forfor thethe ed by Rumpole of the Bailey. It is easy to blame clever lawyers for ‘getting people off’, and one bul- wark against such slipperiness is the Minister for Justice’s proposal to extend restrictions on the right of suspects to remain silent in interview to so-called ‘ordinary’ crime. To many lay people, and no doubt to at least some lawyers, there is a sense that an accused person should make some comment when inter- viewed, and that if they remain silent during questioning they have some- soundsound thing to hide, and so must be guilty. One wonders how many juries form this view notwithstanding the charge that they receive? Why would any- one remain silent if they had nothing to hide? Fear, embarrassment, uncertainty of the law – indeed, any number of things that fall short of guilt of the offence for which they have been brought into custody. It appears, however, that the argument is lost, and it looks as if changes are going to be made. If they are implemented in the present system there will be miscarriages of justice because at present, while a detained person has a right to speak to a solicitor, solicitors are not permitted to sit with a detained person while they are interviewed by the Gardaí. Solicitors have no right of access to statements or to be told about the case before advis- ing a detained person. Indeed, very often the attitude of Gardaí is that a solicitor is a nuisance who will get in the way of the investigation: toler- ated, but only just. Moreover, there is no system of legal aid to cover garda station attendances, inevitably restricting the availability of even limited advice and assistance from solicitors. Radical PACE of change in England ofof In England and Wales, the detention and treatment of suspects is gov- erned by the Police and Criminal Evidence Act, usually referred to as PACE. Enacted in 1984, PACE radically altered the position of the detained person. Solicitors sit in on interviews, which are tape-recorded, and they are paid to do so; there is a duty scheme where on a rota basis private practitioners will attend an unrepresented suspect. The provision of legal advice in the police station is without charge to the detained per- son irrespective of their circumstances. The 1994 English and Welsh Criminal Justice and Public Order Act foreshadowed many of the changes now being suggested for Ireland. A suspect is given a caution upon arrest and before interview: ‘You do not have to say anything but it may harm your defence if you do not mention when questioned something which you later rely on in silensilen

14 LAW SOCIETY GAZETTE COVER STORY

PIC: ROSLYN BYRNE court; anything you do say will be written down and may be used in evi- dence.’ As a result of a number of Court of Appeal decisions, the practice has developed whereby (usually) at least an outline of the case will be given to the solicitor by the interviewing officer (some forces train their officers in how to deal with being interviewed by solicitors). More often than not, the solicitor will be read or shown the statements of witnesses, shown any physical evidence, and told of any forensic evidence. The solicitor then will have a private consultation with his or her client and advise him or her as to the strength of the Crown’s case and advise him whether he all should remain silent or answer questions. The interview is conducted on all tape and copies are made available. The solicitor may be party to discus- sions as to whether to charge or not, and will also make representations on the question of bail, all noted on the custody record by a custody sergeant who is statutorily charged with looking after the interests of the suspect and protecting them. While the length of interview in England may be shorter than in Ireland, conversely the period of detention before charge may be longer (in England a defendant arrested for an offence may be detained without charge for 24 hours, and in certain circumstances longer). Generally, interviews are quite short (around 45 minutes, the length of a tape) as offi- cers will have taken statements from witnesses which are then put to the detained person.

Interviews should be tape-recorded The real tragedy of the trial of Paul Ward is that the Special Criminal Court did not follow through its observations with regard to the treatment that Ward received in Lucan Garda Station. Had the court dismissed the charge against the accused, the shock waves would have shaken both the Gardaí and the public. If there are to be changes to the treatment of suspects in custody (and altering the right to silence is only one of the proposals), then there must be a corresponding change in the way that solicitors are allowed to do their job. The role of the solicitor is not to get people off by some trick or other; it is to ensure that the State, which is the stronger party to any pros- ecution, is put to proof. Solicitors must be allowed to be present while their clients are being interviewed. The interviews themselves must be tape-recorded. The role of the member in charge should be strengthened to provide robust protection of the detainee’s constitutional rights. If solicitors were able to play a more active role in the garda station, the way the Gardaí pursue evidence through questioning would change. No longer would they be able to relentlessly seek confessions with ques- tioning unmitigated by the intercession of a solicitor. Techniques of forensic interviewing, strategic considerations and interview plans would have to replace teams of interrogators. Undoubtedly there is a push to change the right to silence, and if changes are to be implemented the profession must press for a quid pro quo: compulsory tape-recording of interviews and the paid attendance of solicitors upon their detained clients. G

Richard English, a native of Dublin, is qualified as a solicitor in England and Ireland. He is now an associate with a firm of criminal defence advo- nce?nce? cates in the North of England.

LAW SOCIETY GAZETTE 15 Ex the ne action, and containing the substance of the evidence to be adduced ● All maps, drawings, photographs, graphs, charts, calculations or other like matter referred to in any such report ● A copy report, statement or letter from such an expert where the original has been con- cealed, destroyed, lost or mislaid ● All proceedings instituted on or after 1 September 1997 ● Any report or statement coming into exis- tence after 1 September 1997 for the pur- poses of any proceedings (whether institut- ed before or after that date).

Obligations on parties and time limit: Rule 46(1) and (2) Plaintiff. A plaintiff in an action shall furnish Section 45 of the Courts And Court Officers Act, 1995 to the other party or parties or their respective and SI No 391 of 1998, Rules of the Superior Courts solicitors a schedule listing all reports from expert witnesses intended to be called within (No 6) (Disclosure of Reports and Statements) 1998 one month of the service of the notice of trial or radically overhauled the procedures for using expert within such further time as may be agreed by the parties or permitted by the court. evidence in personal injury litigation. Here, the Law Defendant. Within seven days of receipt of Society’s Litigation Committee sets out the main the plaintiff’s schedule, or within such further time as may be agreed by the parties or per- changes introduced by the new rules and explains mitted by the court, the defendant or any other their implications for practitioners party or parties shall furnish to the plaintiff or any other party or parties a schedule listing all reports from expert witnesses intended to be I No 391 of 1998 – entitled Rules of the called. Superior Courts (No 6) (Disclosure of Exchange. Within seven days of the receipt S Reports and Statements) 1998 – was of the schedule of the defendant or other party signed into law on 14 October 1998. The rules or parties, the parties shall exchange copies of are deemed to have come into operation on 1 the reports listed in the relevant schedule. September 1997. Requirements additional to The statutory instrument applies to: exchange of reports ● All claims for damages for personal injuries The parties shall exchange with the other party with the exception of those to which section or parties or their respective solicitors the infor- 1(3) of the Courts Act, 1988 applies in mation and statements referred to in section respect of which trial by jury is available 45(i)(a) (iii), (iv) and (v) of the Act, namely: ● All parties to the action, including the plain- ● The names and addresses of all witnesses tiff or co-plaintiff, defendant or co- intended to be called to give evidence as to defendant, third party, counterclaimant or the facts in the case notice party ● A full statement of all items of special dam- ● All reports or statements from accountants, age together with appropriate vouchers, or actuaries, architects, dentists, doctors, engi- statements from witnesses by whose evi- neers, occupational therapists, psycholo- dence such loss would be proved in the action gists, psychiatrists, scientists or any other ● A written statement from the Department of expert whatsoever intended to be called to Social Welfare showing all payments made give evidence in relation to an issue in an to a plaintiff subsequent to an accident or an

16 LAW SOCIETY GAZETTE JANUARY/FEBRUARY 1999 LITIGATION xpert evidence: ew rules explained authorisation from the plaintiff to the defen- with these rules, application may be made to the court may make such order as seems just. dant to apply for such information court by motion on notice ‘seeking the directions Rule 50(2) provides that a party who has not of the court in relation to any such alleged complied with the section or the rules may apply within one month of the service of the notice of default’. Such application shall be grounded on – in the absence of the consent of the other party triaI or within such further time as may be agreed the affidavit of the moving party. or parties – by motion on notice to the court between the parties or permitted by the court. On the hearing of any such motion, the court seeking the leave of the court to permit the may: adducing of such evidence as has not been dis- Nothing to exchange: Rule 46(3) 1) Direct compliance with such requirement(s) closed. The court may make such order as This sub-rule provides that ‘where a party or forthwith or within such period as the court seems just in the circumstances. his solicitor certifies in writing that no report may fix, or exists which requires to be exchanged pursuant 2) May make any other order as the justice of the Effective date (operative date) to sub-rule 1, then the other parties shall, on the case may require, including orders providing Rule 51 provides that rules 45 to 50 inclusive expiry of the time fixed, agreed or permitted (as that, in default of compliance: shall not apply to: the case may be) deliver any report within the a) the party in default be prohibited from ● Proceedings instituted before 1 September meaning of the section to all other parties to the adducing such evidence 1997, or to proceedings’. b) the claim or defence be struck out, and ● Any report or statement coming into exis- c) may make such costs order as seems meet. tence before that date for the purposes of any Post initial exchange: Rule 46(4) proceedings (whether instituted before or Any party who, having complied with sub-rule Non-compliance with the rules after that date). (1) above, obtains any report or statement with- (discovered while case is at hearing): in the meaning of the section or the name and Rule 48 The new rules come into operation on 1 address of any further witness shall forthwith If it appears to the court at any stage of the hear- September 1997. The exchange of reports shall deliver a copy of any such report or statement ing of an action that there has been non-compli- not be required in any case in which proceed- or details of the name and address of any such ance with any provision of the section or these ings were issued prior to 1 September 1997. witness to the other party or parties or their rules, the court may, after hearing such evidence Furthermore, disclosure shall not be compul- respective solicitors. as regards such non-compliance as may be sory in respect of any report or statement which adduced by the parties, make such order as it came into existence prior to 1 September 1997, Service: Rule 46(5) deems fit, including: irrespective of whether proceedings were insti- Service of any report, statement or information ● An order prohibiting the adducing of evidence tuted before or after that date. requiring to be exchanged or delivered may be to which such non-compliance relates, or The new rules revoked the Rules of the effected by letter in writing enclosing the ● An order adjourning the case to permit com- Superior Courts (No 7) 1997 (SI No 348 of report, statement or information required to be pliance with the provisions of the section and 1997) and Rules of the Superior Courts (No 8) delivered and may be sent by ordinary prepaid the rules and on such terms and conditions as (Disclosure and Admission of Reports and post or in any other manner in which service is seem appropriate, and Statements) (Amendment) 1997 (Sl No 471 of authorised by the rules. ● May make such order as to costs as appears 1997) as and from 14 October 1998. However, Such letter shall specifically state that the ser- just in the circumstances. those rules remained in force until that date. vice is for the purpose of complying with the requirements of section 45 of the Act and these Actions transferred from the Circuit Mutuality of disclosure, not rules. Court into the High Court: Rule 49 admissibility In such cases, the parties shall within one month The mere fact that the parties are statutorily Withdrawal of report or statement of the order adopting the proceedings exchange a obliged to exchange the reports and statements previously delivered: Rule 46(6) schedule of reports and the reports in the manner to which the rules refer does not mean that the Any party who has previously delivered any provided for in rule 46(1) and the provisions of other party must accept them without formal report or statement or details of a witness may this part shall apply mutatis mutandis. proof. The rules refer to mutual disclosure not withdraw reliance on such by confirming by let- automatic admission. ter in writing that he does not now intend to call Exceptions: Rule 50(1) and (2) While this article is intended to be an aid, the author of such a report or statement or such Any party may apply by motion on notice to the the Litigation Committee stresses that there is witness to give evidence in the action. court for an order that in the interests of justice no substitute for reading the statutory instru- the provisions of rule 46 shall not apply to any ment itself. G Motion for directions on failure to particular report or statement (or any part there- comply (prior to hearing): Rule 47 of) which is in the possession of that party and The Litigation Committee thanks solicitor Where an allegation is made by one party that which he maintains should not be disclosed and Patrick J Groarke for his help in the prepara- any other party to an action has failed to comply served as required. On such an application, the tion of this article.

JANUARY/FEBRUARY 1999 LAW SOCIETY GAZETTE 17 Litigation and t

By now we’re all aware of the potentially destructive effects of the so-called Millennium Bug, but what recourse do you have in law if your computer system is one of those affected? Can you sue for compensation and, if so, whom do you sue? Denis Kelleher discusses the legal options arising out of this extraordinary problem

ssessments of the severity of on debt or savings. This article will examine the problem offered by the legal issues which may arise from trying to Millennium Bug vary: some deal with this problem. have suggested a doomsday scenario in which computers Fixing the program Aused by the Russian military malfunction and The best option is to get the supplier of the launch nuclear attacks; in contrast, some software to fix his faulty merchandise. Europeans have suggested that it is all an However, suppliers may be unwilling to do so, American plot to derail the launch of the euro. or at least may insist on being paid for this Those who hope that this problem will be work. It is an accepted fact of life in the infor- approached calmly and reasonably will be dis- mation technology industry that software fre- mayed by newspaper reports that Hollywood quently does not work, and some licence is promising a number of disaster movies agreements will specifically acknowledge this: based on this theme. ‘The licensee acknowledges that software in On a more serious note, the Financial general is not error free and agrees that the Times has reported that interest future contract existence of such errors shall not constitute a prices in the UK, USA and Germany have breach of this licence.’ started to be affected by fears that the (Rennie, Computer contracts, Millennium Bug will cause havoc in financial Sweet & Maxwell, London) markets. This rise in future interest rates is fuelled by fears that big banks may be unwill- This may make it difficult to bring pressure to ing to loan money close to the end of 1999 bear on the company that supplied the soft- since they will be worried that if computer ware. Any dispute may settle on who specified systems collapse their funds will be lost. If that the convention of treating years as a two- money is harder to come by, its price (the digit number should be used. If the purchaser interest rate) will rise. insisted that new programs should be written to The Millennium Bug or Y2K problem has be compatible with programs written in the its roots in decisions taken by programmers 1950s, then they will have a weak case; a back in the 1950s. At the time computer mem- stronger case might be brought by a company ory was expensive, so in order to conserve it which bought computers for the first time in programmers eliminated the first two digits in 1996 and which never had any need to use this a date, so 1957 became 57. To ensure com- convention. putability programmers stuck with this con- Alternatively, if you have a maintenance with the calendar. Furthermore, there are vention even after the cost of memory had contract with another group to manage your advantages to getting the supplier to repair his declined dramatically. The problem is that software, or if a consultant recommended that faulty software: it is more practical – since from 1 January 2000, any computer which has this package should be bought, then it might be they wrote it originally, they should be the best been programmed to read dates in this fashion argued that they should repair this problem. people to fix it. In particular, they will have will have serious difficulties. Such a computer Even if you feel that the supplier is being access to all the relevant records and source might treat a woman born in 1899 as being unreasonable or greedy, you may be well codes. Furthermore, if the original supplier only a year old or assess vast sums of interest advised to pay them as you cannot negotiate ‘fixes’ his already faulty software and it still

18 LAW SOCIETY GAZETTE JANUARY/FEBRUARY 1999 TECHNOLOGY the Year2000

does not work on 1 January 2000, then you Computer programs are protected as literary ous practical difficulties which the repair of a will have a very good case for compensation. works under the European Communities computer program offers1, such repair will Banks, insurance companies and other insti- (Legal Protection of Computer Programs) inevitably infringe many of the owner’s exclu- tutions are currently expending huge sums Regulations 1993. These regulations give the sive rights. Such repair might be permitted by reprogramming their systems to rectify the owner the exclusive right to control the repro- the licence agreement or contract under which Year 2000 problem. Copyright complications duction, translation, adaptation, arrangement the software was originally supplied, but the may occur where the bank or other body and alteration of a computer program. provisions of regulation 6(1) provide that: repairing a program does not actually own it. Assuming that you can overcome the seri- ‘Where there are no specific contractual

JANUARY/FEBRUARY 1999 LAW SOCIETY GAZETTE 19 provisions to the contrary, the [reproduction, becomes extremely complex and technical. caused by that error: what price do you place translation, adaptation and alteration of a pro- To help keep it simple, run extensive tests on on your reputation for reliability? If you can gram] shall not require authorisation by the your equipment in December 1999. The line overcome all of the above problems, then there rightholder where they are necessary for the ‘We tested it on 31 December 1999 and it are a number of specific legal issues that may use of the computer program by the lawful worked fine but on the morning of 1 January arise. acquirer in accordance with the intended pur- 2000 it stopped’ has a clarity which will The Statute of Limitations. You can sue in pose, including for error correction.’ appeal to judges everywhere. tort and contract for six years from the date upon which the cause of action accrued (sec- tion 11 of the Statute of Limitations, 1957). ‘Proving that a system failed because of a The problem here will be deciding when the programming error may be difficult and expensive. cause of action accrued. Was it when the soft- ware was supplied with a Millennium Bug Proving whose fault that error was may create problem? Was it when you started to get wor- even more problems’ ried about it? Or will it be breached early in the morning of 1 January 2000? Even if you can get around this point, the courts may decide So if there are no provisions to the contrary, If their system fails, many will be tempted to that the author of a piece of software written you should be able to correct errors in a com- sue for compensation. This will be difficult. back in 1970 could not reasonably have antic- puter program.2 Great care should be taken in One English solicitor has suggested that there ipated that his work would still be in use in the any situation in which another’s copyright will be no wave of Millennium Bug litigation. Year 2000. may be infringed. Work should be kept to a ‘There will be no Year 2000 litigation spree in Jurisdiction. Computers can be intercon- bare minimum, and careful controls should be the UK. This assertion is, I believe, justified by nected into international networks. If a system imposed on any information which may be the difficulty of establishing a successful claim in Germany crashes due to bug problems and discovered about the software as a result of for Year 2000 failures’, wrote John Mahwood brings down your system in Ireland, who is this work. In particular, the staff used to carry in Computer & Law (October/November 1998 liable and where do you sue? Lawyers in the out this work must sign confidentiality claus- issue, p25). Proving that a system failed USA are clearing their desks in anticipation of es and when the work is finished all records, because of a programming error may be diffi- some serious litigation on the back of this. codes and other information should be held cult and expensive. Proving whose fault that Plaintiffs might do better if they become part securely – preferably by a third party. error was may create even more problems. of an American class action. However, the Repairing a computer program is an unat- Complex computer systems may contain many ‘Good Samaritan Act’ recently passed by tractive option; there are many disadvantages different components which will have been Congress may limit the liabilities of software not least the fact that there may not be enough supplied and updated by a variety of suppliers companies for software which suffers from the time to complete this before 1 January 2000. over the years. Finally, it may be difficult to Millennium Bug in the USA. But the major disadvantage is that the chances assess the amount of damage which has been Was the product sold as being Year 2000 of successfully suing the supplier may be compliant? The text of any guarantee should diminished as the supplier will be able to be carefully examined to see whether it actu- claim that it was the attempted repairs which ally promises that the product will continue to were botched and not his original program. work through the Year 2000. The fine print of such guarantees may seek to restrict what is Litigation post-2000 covered or reduce the amount of damages that As stated above, it is accepted that software may be paid. The provisions of section 13(1) will fail from time to time. It must be remem- of the Sale of Goods Act 1893 should also be bered that potentially faulty computer chips noted. This section states that if a good is sold may be found in a whole range of products by its description then there is an implied con- from microwave ovens to cars. If you suspect dition that the goods meet this description. But that your software will suffer from it must be remembered that proving that a Millennium Bug problems, there are several good failed because of a Year 2000 problem as things which you could do from a legal stand- opposed to any other problem may be point. extremely difficult. ● Do all that you can to mitigate your losses. Limitation of liability clauses. All goods For example, the Dutch airline KLM has supplied must be of merchantible quality.3 stated that it may have to ground part of its This means that they must be reasonably fit for fleet on New Year’s Eve 1999 as it fears the the purpose for which they are commonly pur- consequences of governments and air-traf- chased.4 Since software companies accept that fic controllers failing to make their systems the programs which they supply may contain safe errors, licence agreements and contracts drawn ● Prepare to gather as much evidence as pos- up by such companies will inevitably be sible to enable your client to quantify his designed to limit the damages which a soft- losses. Records of how your system per- ware company may be liable for if their soft- forms should be kept, preferably on a sys- ware should fail. So ‘limitation of liability’ tem which will not suffer from Millennium clauses are commonly inserted in computer Bug problems contracts. A typical one reads: ● One of the main problems with computer- ‘… ICL’s liability will not exceed the price, related litigation is that the evidence 20 LAW SOCIETY GAZETTE JANUARY/FEBRUARY 1999 TECHNOLOGY or charge payable for the item of equipment, It should also be noted that there is no defin- program or service in respect of which the lia- itive answer to the question of whether soft- bility arises or £100,000 (whichever is the less- ware is a good for the purposes of the Sale of er). Provided that in no event will ICL be liable Goods Acts.6 The Irish courts or the British for: House of Lords might hold differently, i) Loss resulting from any defect or deficiency although it is my view that sale of goods legis- which ICL shall have physically remedied at lation does apply to software. But it is quite its own expense within a reasonable time possible that software would be supplied as ii) Any indirect or consequential loss or loss of part of a service, in which case you might sue business or profits sustained by the customer for negligent supply of services. iii)Loss which could have been avoided by the Legislatures, courts and society treat error- customer following ICL’s reasonable advice laden software with remarkable indulgence. and instructions.’ For example, there is no sign of the product lia- bility litigation which has been initiated Such a clause will be void in a consumer con- against targets as diverse as silicon breast tract and it can only be enforced in a commer- implant manufacturers, gun shops or cigarette cial contract if it can be shown to be ‘fair and companies in the USA. In this litigation-free reasonable‘.5 If the courts have to decide environment, the IT industry has flourished. whether or not a term is fair and reasonable, One effect of the Millennium Bug may be to they may have regard to the circumstances in end this indulgence. If a large number of cases which the contract was made, the strength of are brought over alleged Millennium Bug the parties’ bargaining positions, whether an So far the IT industry has seemed immune to defects, the courts will have to define legal inducement was given to accept the term, product liability litigation rules and set out the standards by which faulty whether the customer knew of the existence of software is judged. How this changing envi- the term, the practicality of compliance with tinguished on its facts. The plaintiff was under ronment will affect the software industry any terms and whether or not the goods were severe pressure as to time when signing the remains to be seen. G adapted to the special order of the customer. contract and the defendant was one of only Such a clause was examined by the English very few companies who could deal with this Denis Kelleher BCL is a Dublin-based courts in St Albans City Council v ICL (1995 sort of problem. barrister. FSR 686). The English sale of goods legislation is similar to the Irish but not identical. The plaintiff was a local authority in the UK; the Footnotes quality, except that there is no such condi- defendant had agreed to supply a system to help 1 Repairing software in this fashion presents tion: the plaintiff administer the poll tax. The pro- serious practical obstacles, not least of a) As regards defects specifically drawn to gram malfunctioned and it overestimated the which is the fact that the suppliers of com- the buyer’s attention before the contract number of charge-payers in St Albans. As a puter programs usually only supply in the is made, or result, the council set the charge at too low a form of ‘object code’. Computer programs b) If the buyer examines the goods before level and failed to collect enough tax. The have to be written in a language which can the contract is made, as regards defects plaintiff then sued for £1,314,846, but was met be understood by humans such as JAVA or which that examination ought to have with the limitation of liability clause discussed BASIC and a program written in this form revealed.’ above. The clause had been queried by the will be known as the ‘source code’. 4 Section 14(3) of the Sale of Goods Act, 1993 plaintiffs at negotiation, but they had gone on to However, computers can only understand (as amended by section 10, 1980) provides: sign the contract containing it. However, Scott information which is presented in the form ‘Goods are of merchantible quality if they Baker J held that the clause was not enforce- of 0s and 1s; this is known as the object are as fit for the purpose or purposes for able. In looking at the reasonableness of the code, and when computer programs are sup- which goods of that kind are commonly limitation clause, he noted that: plied they are usually supplied in this form. bought and as durable as it is reasonable to ● The defendant had considerable resources – However, a company may get its hands on expect having regard to any description it was part of a group which had a worth of the source code in a number of ways: the applied to them, the price (if relevant) and £2 billion in 1988, and profits of £100 mil- codes may have been supplied as part of the all the other relevant circumstances and any lion in the first half of 1988 original contract or they may have been reference in this Act to unmerchantible ● The defendant had product liability insur- held in escrow with a third party. More goods shall be construed accordingly.’ ance of £50 million nefarious methods of accessing source 5 Section 55(4) of the Sale of Goods Act, 1993 ● The defendant called no evidence to show codes exist (see Nintendo v Atari). provides: that it was fair and reasonable to limit its lia- 2 British Leyland v Armstrong Patents (1986 ‘In the case of a contract for sale of goods, bility to £100,000 AC 577). It should also be noted that regu- any term of that or any other contract ● The plaintiff received no inducement to lation 6(3) provides that software can be exempting from all or any of the provisions accept the clause. tested without infringing the rights of the of sections ... 14 ... of this Act shall be void owner of copyright. where the buyer deals as a consumer and The plaintiff won in the English High Court and 3 Section 14(2) of the Sale of Goods Act, 1993 shall in any other case, not be enforceable the defendant appealed unsuccessfully, save for (as amended by section 10, 1980) provides: unless it is shown that it is fair and reason- the fact that damages were reduced by ‘Where the seller sells goods in the course of able.’ £484,000 since this sum could still be recov- business there is an implied condition that 6 See Kelleher & Murray, Information tech- ered from the taxpayers. This case can be dis- the goods supplied are of merchantible nology law in Ireland (Butterworths, 1997).

JANUARY/FEBRUARY 1999 LAW SOCIETY GAZETTE 21 Time for a rethink

Small companies will be ccording to official figures, more than nine out of ten of Ireland’s 165,000- the focus of legislation A plus companies are private limited which is due to be companies. A significant proportion of these are small companies. One official estimate in published over the coming Britain indicated that about 90% of companies weeks. They are not at there could be defined as small companies. The forthcoming Companies (Amendment) the glamour end of Bill, 1999 proposes relieving those companies commerce, but there are with an annual turnover of less than £100,000 of the obligation to have an annual audit of a lot of them and the their accounts. The threshold is small when Companies (Amendment) compared with the limit of annual turnover of £3,000,000 for a small company in the Bill, 1999 will be of great Companies (Amendment) Act, 1986, which relevance to them and reduced small firms’ obligations of annual dis- closure to the Companies Office. to their legal advisors. The proposals carry the weight of recom- Pat Igoe reports mendations of both the Task Force on Small Business (TFSB), which reported to the Government almost exactly five years ago (March 1994), and the Company Law Review Group (CLRG) which reported in 1995. The Bill will also include other company matters, including widely-demanded reforms of the law on Irish-registered non-resident companies. It might be argued that the proposed reform is fairly limited. But it is possible, if improbable, that it will be significantly amended in its pas- sage through the Dáil and Seanad. The Company Law Review Group, which was chaired by chartered accountant James Gallagher of Arthur Andersen, recommended that the limit of £100,000 annual turnover should be reviewed regularly. Is it time for its the owners (at least until the first meeting with first review yet? the bank manager), the continuity of the busi- It is even debatable whether the approach is ness irrespective of the lives of the owners, and entirely misplaced. David Tomkin and Alan the ability to transfer shares in the business. Dignam of Dublin City University argue that But is the vehicle, which carries corporate enti- there is no apparent logic in using turnover as ties of all sizes and which dates at least from a measure for relief from the statutory audit. the middle of the last century, due a re-fit for They maintain in the Irish law times that what the smaller models? is required is a fundamental analysis of what financial information could be of use to all Worst system known to man? those dealing with companies and how such In the debate on the Limited Liability Bill in information should be presented in more user- 1855, Lord Stanley said that it would be absurd friendly fashion. Also, it has been suggested for small enterprises to use the company form by Dublin solicitor Tom Courtney in Company but he was comforted in the belief that the law review 1995 that it may be doubted expense of incorporation would be a sufficient whether ‘the outside world – and especially deterrent. Lord Redesdale said that small busi- the financial world – will accept unaudited nesses should be prevented from setting up as accounts’. companies ‘otherwise petty companies of all Many small businesses gravitate towards kinds would be set afloat by lawyers for the incorporation. The benefits appear to be obvi- purpose of getting long bills paid to them for ous. They include limited personal exposure for their services’.

22 LAW SOCIETY GAZETTE JANUARY/FEBRUARY 1999 COMPANY LAW on small business?

nesses. But it did recommend that a new and less of companies should be made more difficult onerous category of limited liability company be and more expensive thereby reducing the num- created to assist companies in their first two ber of companies ‘and especially of small years. This has not been enacted. A Small companies’. Parliament might thus ‘go some Business Act was envisaged. We are still waiting way towards restoring to the limited company for it. its original function and to the partnership its There has been remarkably little debate in proper place in business life’. Ireland on the most suitable vehicles to encour- In any fundamental look at the law of small age business. The Company Law Review Group companies, there are various international itself felt that company law did not seem to precedents to take into account. These range impact onerously on small companies on a day- from the Société à Responsabilité Limitée to-day basis. Critics might argue that this is sim- (SARL) and the Gesellschaft mit beshrankter ply because many (dare I say most?) know little Haftung (more easily pronounced as GmbH),

‘There remains a respected view that, for small enterprises, the partnership option has been steam-rollered by the limited company juggernaut’

and care less about Table A and its provisions. on the one hand, to South Africa’s Close The findings of Mr Justice Kelly in Re Aston Corporations Act of 1985. Small company leg- Colour Print Ltd in 1997 are salutary. islation has also been introduced in various Question: when is a board meeting not a board other common-law countries, including meeting? Answer: when the requirements of Australia, the United States and New Zealand. the Companies Acts are not complied with. In Such legislation tries to recognise the quasi- that case, a meeting was not a board meeting as partnership realities of many small companies. had been thought by the company principals. The issues involved are apparently simple Mr Justice Kelly noted that meetings had been but deceptively complex. It is not clear when held in an informal fashion, which was under- or if the remaining recommendations for small standable for a small company. How many companies, including the Company Law other small companies are less than diligent in Review Group’s ‘major task’ of examining their observance of the Companies code? whether company law could be amended or Winston Churchill argued that democracy simplified for them, will be the subject of leg- was the worst system of government known to Fundamental review needed islative proposals. man with the exception of the other available The Company Law Review Group decided that Last December, the Minister for Justice, options. Likewise, one could argue that the lim- ‘whether company law could be amended or John O’Donoghue, announced the ited liability company is the least inappropriate simplified in a way that would be materially Government’s intention to establish a statutory vehicle for companies, big and small. But there helpful to small companies’ was worthy of ‘council on crime’. It was described by remains a respected view that, for small enter- consideration. The current Government pro- Professor Bryan McMahon, chairman of the prises, the partnership option has been steam- posal is not taking place in the context of any National Crime Forum, as a body which would rollered by the limited company juggernaut. such overall fundamental review of legislation subject proposed legislation to ‘measured con- The Company Law Review Group did rec- relating to small companies. sideration on an on-going basis’. Arguably, a ommend that the application of company law Any such review might begin with the argu- similar welcome would be given to a perma- generally to small companies should be exam- ments of Judith Freedman of the London nent review body on company law. ined either in a future phase of its work or by School of Economics in her seminal article It might also be said that our current vibrant some other such group. But this has not hap- ‘Small businesses and the corporate form: bur- economy is precisely the best setting for a fun- pened, and the group itself is no longer in exis- den or privilege?’, published in the Modern damental review of the law to help small enter- tence. law review in July 1994. She quotes the 1944 prises and those doing business with them. The The essential purpose of the Task Force on comments of controversial lawyer O Kahn- alternative may be to wait until the tide goes Small Business’s report was to encourage new Freund that the limited liability company was out and see what is left behind. G small enterprises and to strengthen existing originally a capital-raising device which, he ones. Many of its recommendations related to said, was wrongly appropriated by small com- Pat Igoe is principal of Dublin-based solici- the burdens of labour and tax law on small busi- panies. Kahn had suggested that the formation tors’ firm Patrick Igoe and Company.

JANUARY/FEBRUARY 1999 LAW SOCIETY GAZETTE 23 What can we for you? Ask not what you can do for your professional body (well, not really: the Society would love to see members take a greater interest) but, rather, what your professional body can do for you. The Law Society provides a wide range of services for solicitors above and beyond its familiar regulatory and representative roles. In the first of a series of articles, Member Services Executive Claire O’Sullivan explains what these services are and how they can help your practice ALL PICS: ROSLYN BYRNE

Café society: The Law Society’s recently refurbished Friary Café in the Four Courts, which opened in October 1997

ver since the Law Society of Ireland the media and other professional bodies. But, Nothing could be further from the truth. The moved to its new Blackhall Place head- sadly, that often seems to be where their Law Society provides a wide range of services E quarters in 1978, thousands of solicitors knowledge of the Society ends. Anecdotal evi- designed to help solicitors run their practices have visited this historic building, many com- dence suggests that members view their pro- more efficiently and effectively and geared ing for business or pleasure but most coming fessional body as some sort of Dublin-based towards making their professional lives easier. simply to begin their training as apprentices. monolith that has little interest in the ordinary As the newly-appointed Member Services And when they leave, they will know that the solicitor – unless it is to haul them over the Executive, I hope that this series of articles will Law Society regulates their profession in the coals for some perceived misdemeanour – and provide some useful information on how the public interest and fights the good fight on which has certainly nothing to add to the pro- Law Society can help you and your firm and their behalf in its dealings with government, fessional lives of members. that it will encourage you to make more of the

24 LAW SOCIETY GAZETTE JANUARY/FEBRUARY 1999 MEMBER SERVICES do

services we offer. After all, it is your profes- sional body and we are here to help you. As a result of our determination to focus more on what the Law Society can do for you, the structure of the Society’s secretariat was re- organised in December 1997 to include a fourth department, ‘Policy, Communication and Member Services’. This department now comprises 13 members and is headed by the Deputy Director General, Mary Keane. Part of the department’s brief is the expansion and promotion of the portfolio of Law Society ser- At your service: Claire O’Sullivan, vices available to solicitors throughout the Member Services Executive, and (inset) country. Blackhall Place’s silver service restaurant International These services fall into four broad cate- Group, and has gories: since featured such ● Professional practice development Society number. The Society also runs an luminaries as ‘show busi- ● Growing your business extensive programme of continuing legal edu- ness’ lawyer James Hickey of ● Personal benefits, and cation and personal development courses for Matheson Ormsby Prentice and Mary ● Ancillary services. members throughout the year. The speakers at O’Rourke TD. Forthcoming New Horizons these seminars are all experts in their fields and events will be publicised in the news pages of Professional practice development the subjects chosen on the basis of topicality or the Gazette, so keep your eyes peeled! Practice development aims to provide timely perennial interest to the profession. Last year, But possibly the most important project to be advice and support to help members manage for example, we ran CLE courses on Recent carried out this year will be the unveiling of the their firms better. The Society endeavours to developments in conveyancing practice, Law Society’s new web site. The launch is set keep members up to date with regular profes- Essentials of personnel management, and The for 10 February, and next month’s article will sion-wide publications such as the Gazette, the conduct of modern litigation. This year we set out in detail the contents of the site and how Law directory and regular practice notes. It also intend to expand the CLE programme and to you can get the best out of it. Basically, the web issues regular briefings on legislation and busi- run more courses around the country. site will aim to inform and update the profes- ness-related topics to raise awareness among Hopefully, this should make it easier for those sion about the work and activities of the Law solicitors of proposed changes in these areas. In solicitors outside Dublin to keep up to date with Society and to provide information and advice the last year, for example, we issued briefings the burning legal issues of the day. to members in the conduct and management of on subjects as diverse as the Investment Another recent initiative that has really taken their practices. This is a wonderful opportunity Intermediaries Act, the Conveyancing hand- off has been the Law Society’s New Horizons for feedback and communication between book and the Education Policy Review Group business links programme which is run in asso- members and their professional body, and we report. Projects for the coming year include ciation with accountants PriceWaterhouse- hope that everyone will find it useful and easy issuing a CD-ROM of Irish statutes from 1922 Coopers. The programme is designed to reflect to use. If you can’t wait until next month’s to date, an audio tapes pack, Managing your and promote the increasing diversification by issue, you can access the site on www.lawsoci- legal firm, and an update to the Get connected young solicitors into new areas of practice and ety.ie after 10 February (see also news story, supplement. aims to provide a forum for young solicitors page 13). Professional guidance, in both the areas of and apprentices to meet senior personnel from practice and professional conduct, is freely a variety of industries in a semi-social setting. Growing your business available at the end of a telephone line from the Events include breakfast, lunch and evening The second major category of services that the various professional committees of the Law meetings where short talks are given by promi- Law Society provides for its members can be Society. The secretaries of the individual com- nent members of the business and legal com- termed Growing your business. This concen- mittees are listed at the front of your Law direc- munity. New Horizons kicked off with a talk by trates on enhancing business opportunities and tory and can be contacted on the main Law Paul Coulson, chief executive of Yeoman client-care services for members through the

JANUARY/FEBRUARY 1999 LAW SOCIETY GAZETTE 25 MEMBER SERVICES provision of corporate finance schemes, com- matched by a thoroughly business-like func- but be warned: rooms must be booked in pany formations and client-care leaflets. For tionality that provides the working environment advance. They cost £20 for a single room and example, a funding scheme to make it easier to and support services you require. £30 for a double room. pay professional indemnity insurance and the Blackhall Place is an adaptable building and Four Courts consultation rooms. Over the practising certificate fee has been negotiated by makes an excellent venue for a wide range of past 18 months, the Law Society has expended the Society on behalf of its members on highly social or business events for solicitors and their a good deal of time and money upgrading its competitive terms with Equity Bank. Likewise, clients. Blackhall Catering, the Society’s in- consultation rooms at the Four Courts. The the Society operates a comprehensive company house catering team, is available to assist and result has been 24 state-of-the-art meeting formation service for members from its premis- advise members who wish to organise a busi- rooms which have been carefully refurbished es at Blackhall Place. Again, these schemes will ness dinner, a press conference, a training for members’ use. These rooms may be be discussed in more depth in a later article. course or even a wedding. Menus will be cus- booked in advance or (depending on availabil- tomised to suit individual requirements and ity) paid for on the spot. Rooms can be booked Personal benefits original settings and table decorations will be at the one-hour rate of £20 while £30 secures a Of course, no solicitor’s life is just work, work, provided. An extensive menu range is available room for the standard two-hour period. The work. There has to be scope for entertainment, on request from the Society. Likewise, you can £20 rate is subject to an immediate cash or even if that simply means availing of the book daily lunch in the silver service Members’ credit card payment to reduce administration Society’s ample facilities to meet potential new Dining Room. costs. There are a large number of telephones clients or to wine and dine valued contacts. And if you find that you can’t tear yourself available for members’ use, and tea and coffee Conference, accommodation and enter- away, we provide overnight accommodation for will be served to each room on request. Full tainment facilities. Few venues can rival members at keen rates. These cosy rooms are photocopying facilities (including a colour Blackhall Place as the setting for a social func- fully equipped with tea and coffee-making facil- photocopier) and storage lockers are also avail- tion or business event. Besides playing host to ities, a self-service kitchen and a TV able. The solicitors’ writing room is also avail- the Law Society, Blackhall Place is an out- room/lounge. Full breakfast is available in the able for members and provides a quiet space standing Dublin landmark and is steeped in his- Members’ Dining Room. where you can catch up on your paperwork. tory and tradition. Because it operates as the There is ample on-site The Friary Café. In response to members’ hub of the solicitors’ profession in Ireland, you car parking for requests for improved catering facilities at can be sure that its picturesque grandeur is overnight guests, the Four Courts, the Society opened the Friary Café in October 1997. This delightful tea-room occupies the area known to generations of apprentices as Mrs O’Reilly’s Kitchen and is an oasis of calm amid the hurly-burly of the courts. The new design has cleverly incorporated many of the features of the old kitchen, including the old cast iron range. The café is open from 9am to 4.30pm every weekday and offers a range of sandwiches, snacks and light refreshments to members and their clients.

Ancillary services Finally, the Society also offers a wide range of personal and ancillary services to its members and these will be dealt with more comprehen- sively in a later article. One of the themes of Patrick O’Connor’s presidency for 1999 is to make the Law Society more accessible to solicitors, and he has identified the delivery of first-class ser- vices and benefits to members as one of the priority areas in this regard. The focus of all Society services is relevance, practicality, use- fulness and value for money. We recognise that the key to success for modern professionals is excellent management and business skills. To this end, we aim to deliver practical, targeted services that will bring tangible benefits to members that will allow both practices and practitioners to meet the challenges of the years ahead. G

Claire O’Sullivan is the Law Society’s Member Detail of the Council stairwell, Blackhall Place, and (inset) the Four Courts’ Friary Café Services Executive.

26 LAW SOCIETY GAZETTE JANUARY/FEBRUARY 1999 BRIEFINGBRIEFING

Council report

Report on Council meeting held on 5 November 1998 New Council members recommendations to the Council. that the Bill had been passed by cluded that the matter should be The Council welcomed its newly- He identified the greater use of the Seanad and was due to be con- considered further by the Co-ordi- elected members, Walter Beatty, technology and an increasing sidered in the Dáil during the fol- nation Committee. Anne Colley, John Fish and John P focus on the services provided by lowing two weeks. Shaw, together with the new nom- the Society as areas for particular Year 2000 compatibility inees from the DSBA, David emphasis during the coming year Statutory Instrument 391 and indemnity insurance Bergin and Kevin O’Higgins and and expressed his intention that of 1998 David Martin reported that the from the SLA, Simon J Murphy, every practitioner would receive a James McCourt reported that SI Professional Indemnity Insurance and wished them well for their personal invitation to attend a 391 of 1998, replacing SI 348 of Committee was considering the term of office. function at Blackhall Place, so as 1997, had been signed into law on issue of Year 2000 compatibility, as to have an opportunity of visiting 14 October 1998. However, some of the approved insurers had Taking of office by their headquarters. because of the wording of the new indicated that they would not pro- President and Vice- In relation to the committees for rules, there was some confusion vide Year 2000 indemnity cover. Presidents the coming year, he had sought to as to whether both statutory The outgoing President, Laurence adhere to the recommendations of instruments were to be considered CCBE K Shields, thanked the Council the Review Working Group and, as running in tandem up to 14 The Council considered documen- members, the Director General accordingly, the number of com- October 1998, or whether SI 348 tation presented by Geraldine and staff of the Society, his wife mittees had been reduced, some of 1997 would be regarded as not Clarke regarding proposed Helen, and the profession for their had their areas of responsibility having been in effect up to that changes to the CCBE code of con- support and encouragement during extended and the number of mem- date. The Society had sought an duct and to the voting system the past year and expressed his bers had been reduced. To empha- urgent meeting with the President within the CCBE and her recom- best wishes to the incoming sise the accountability of the of the High Court, with a view to mendations, following consulta- President, Patrick O’Connor, who Council to the members and the discussing the issue of a practice tion with the Guidance and Ethics was then formally appointed to responsibility of the committees to direction by him on the matter. Committee, as to the Society’s office by the Council. the Council, he had sought, where (See pages 16-17 for explanatory stance. Following discussion, the Mr O’Connor expressed his possible, to appoint a Council article on the new rules.) Council approved Ms Clarke’s deep sense of pride and privilege member as chairman and vice- recommendations on the proposed to be appointed as President of the chairman. Outcome of postal ballot amendments to the code of con- Society and to follow in the foot- Mr O’Connor confirmed his The Council noted with pleasure duct and authorised her to vote in steps of his late father, Val, who 100% commitment to the Council, that 76% of those who had partic- favour of the proposed system of a was President in 1972/73 and the the Society and the profession for ipated in the postal ballot had double qualified majority vote for first Mayo man to hold that posi- the coming year. The Senior Vice- voted in favour of the resolution decisions on major issues within tion. He paid tribute to the unstint- President, Anthony Ensor, and the and that work would proceed the CCBE. The Council also ing commitment of Laurence K Junior Vice-President, Gerard immediately on the construction approved the appointment of John Shields during his year in office, Griffin, both then took office and of the new Education Centre. In Fish as the Society’s representa- who had dedicated himself on a thanked the Council for the hon- response to a query from Orla tive on the CCBE sub-committee full-time basis to the work of the our bestowed on them. Coyne, Owen Binchy said that the on money laundering. Council and the Society. Education Committee was exam- With close to 6,600 solicitors on Proposed designation of ining a number of options for Law Clerks JLC: proposed the Roll, he identified the greatest solicitors pursuant to sec- dealing with the backlog of stu- pension scheme challenge for the Council as antic- tion 32 of the Criminal dents in advance of the introduc- Gerard Doherty reported that the ipating and preparing for change Justice Act, 1994 tion of the new course and the employee representatives on the and ensuring that all solicitors John Fish outlined the background development of the new building. JLC sub-committee had indicated received the best possible educa- to the issue and identified the their intention to seek agreement tion. He noted the disappointing Society’s fundamental concerns Younger Members for a compulsory pension scheme level of interest among members regarding the proposal. Remuneration Survey for all employees, with an willing to seek election to the The Council considered the employer’s contribution of 4% Council and he indicated his inten- Solicitors (Amendment) results of the Younger Members and an employee’s contribution of tion to appoint a working group to Bill, 1998 Remuneration Survey, as present- 2%, with a death benefit of two examine this issue and to make The Director General reported ed by Stuart Gilhooly and con- years’ salary. On a payroll of

JANUARY/FEBRUARY 1999 LAW SOCIETY GAZETTE 27 THE SOCIETY OF YOUNG SOLICITORS IRELAND IN ASSOCIATION WITH THE BAR OF IRELAND Spring Conference 1999 19-21 March 1999 at Dromoland Castle, Co Clare

Friday 19 March 1999 NOTES: 5pm onwards Registration of delegates 1. Accommodation at Dromoland Castle Hotel will be limited. Early booking is essential and Saturday 20 March 1999 accommodation will be allotted strictly on a TERRACE ROOM first-come, first-served basis. 10.15am to 10.55am The decade of the tribunal 2. Conference fee is IR£165 pps, and includes Eamonn Leahy SC Friday and Saturday night accommodation, 10.55am to 11.30pm Tribunals and the media two breakfasts, subsidised activities, Saturday Ted Harding, legal correspondent, evening banquet and conference materials. Sunday Business Post 3. A conference rate without accommodation is available at £65 which entitles the delegate to Followed by discussion session attend the lectures, subsidised activities, Saturday evening banquet and to a copy of the 11.50am-12.10pm COFFEE BREAK conference materials. 12.10pm to 12.50pm Developments in conveyancing practice 4. Individual applications only are acceptable Patrick Sweetman, Partner, Matheson Ormsby (that is, one registration form per applicant per Prentice, Solicitors envelope). All applications must be made by ordinary prepaid post and only postal applica- 1pm to 2pm LUNCH available at delegate’s cost tions exhibiting a postal mark dated 12 2pm-6pm Activities including tennis, golf (pre-book through February 1999 or after will be processed. hotel), fishing, clay pigeon shooting (deposit of £10 5 No booking will be accepted without payment required), leisure centre with steam room, sauna and of the conference fee. Cheques to be made gymnasium payable to the Society of Young Solicitors. A cheque may cover several applicants provided 7pm to 8pm Drinks reception, Brian Boru Balcony each applicant posts a separate registration 8pm. until late Banquet, followed by band and disco (Black Tie) form. Please write delegate names on the reverse side of all cheques. Sunday 21 March 1999 6. All cancellations must be notified to Julian Up to 10.30am Breakfast Yarr by Monday 1 March 1999. Cancellations 12 noon Check out of hotel after that date will not qualify for a refund.

REGISTRATION FORM Please use block letters (Individual postal applications only – no block bookings) Name: Firm: Business address Phone no: (Home) (Office)

ACCOMMODATION IN DROMOLAND CASTLE: £165 per person sharing Please tick box Double Twin Sharing with: Single I wish to avail of the vegetarian option at the banquet I wish to participate in clay pigeon shooting (£10 extra enclosed)

NON-ACCOMODATION RATE: £65 I enclose cheque/postal order payable to the Society of Young Solicitors for £ in payment of the conference fee (includes £10 for clay pigeon shooting, if relevant)

Please post this registration form with the conference fee to The Treasurer, SYS-Spring Conference, PO Box 52, Carlow. Postal applications exhibiting a postal mark of on or after 12 February 1999 only will be accepted. All enquiries regarding the conference should be directed to Julian Yarr at (01) 661 3311 after 6pm Monday to Thursday. BRIEFINGBRIEFING

£100,000, this would cost an support to the Society’s representa- from the newspaper. In his view, cating that the Society did not employer £2,000 a year. tives on the JLC. the promotion was in extremely regard this type of promotion as Mr Doherty said that, as a com- bad taste and should be vigorous- appropriate, as it demeaned the pulsory scheme would represent a Wills promotion ly opposed. The Director General service provided by solicitors and new obligation for the profession, Philip Joyce asked whether the confirmed that he had received a indicated that there was no partic- he believed that soundings among Society proposed to take any letter from the newspaper, seeking ular skill involved in the drawing colleagues were urgently required. action in relation to a wills promo- the Society’s support for the pro- of a will. He also believed that the The Council agreed that (a) the tion being run by The Sunday motion, together with letters from Society should recommend that profession should be notified of Times under which readers of that solicitor colleagues objecting, members should not participate in the on-going discussions, and (b) a newspaper would be entitled to a quite rightly, to it. Donald Binchy the promotion. The Council unan- working group should be estab- free will once they collected a said that the Society should reply imously endorsed Mr Binchy’s lished to provide guidance and number of promotional tokens firmly to The Sunday Times, indi- suggestion.

Report on Council meeting held on 4 December 1998

Nominees from the Law Solicitors (Amendment) to the compensation fund contri- Budget submission Society of Northern Bill, 1998 bution, the committee believed The Council noted, with approval, Ireland The President reported that it was that, given the level of reserves the excellent submission by the The Council approved the nomi- now unlikely that the Bill would and insurance for the fund, it was Taxation Committee on the nees from the Law Society of reach committee stage in the Dáil not necessary to maintain the pre- Budget and the correspondence Northern Ireland as Extraordinary before January 1999, at the earliest. sent level of contribution to the from Anthony Collins, Chairman Members of the Council, as fol- fund of £600 and it was proposed of the Retirement Fund lows: Catherine Dixon, Antoinette Financial services that this should be reduced to Committee, to the Minister for Curran, John Meehan, Alastair regulation £400, with the registration fee Finance requesting the granting of Rankin and George Palmer. It was agreed that the Society increasing by £200, £100 of which interim relief for self-employed would make a submission to the would be allocated to the new individuals who were presently Motion: In-house Implementation Advisory Group Education Centre and £100 being required to purchase an annuity at complaints procedure on the establishment of a Single applied towards the cost of the the time benefits were drawn That this Council approves the Regulatory Authority for the finan- provision of services by the down. draft regulations providing for the cial services sector, confirming the Society and the further reduction establishment of a mandatory in- Society’s view that solicitors who of the Society’s indebtedness. He Law Clerks JLC house complaints procedure in acted as investment intermediaries confirmed that the total practising Gerard Doherty reported that the every firm of solicitors. should be regulated by the Society, certificate fee would increase by JLC had approved an increase of Proposed: Francis D Daly and not by the proposed new body, £15, which reflected inflation. 1.5%, effective from 1 April Seconded: John D Shaw other than to the extent currently The Chairman of the 1999, and an increase of 1%, undertaken by the Central Bank. Compensation Fund Committee, effective from 1 January 2000, at Proposed designation Gerard Doherty, said that, person- its meeting held in November. of solicitors pursuant to Education fees and ally, he believed that the recent This was in line with a previous section 32 of the Criminal courses low claims history, the reserves in Council decision. Mr Doherty Justice Act, 1994 The Council considered and the fund and the insurance on the said that the pension scheme pro- John Fish reported that he had been approved draft regulations in rela- fund combined to support the posed by the JLC was being con- appointed by the CCBE to chair a tion to apprentices’ fees which view that a contribution of £400 sidered by a working group com- task force, which included repre- would be presented to the was adequate to meet its current prising himself, Hugh O’Neill, sentatives from three other delega- President of the High Court for his needs. The Council approved the Niall Farrell and Philip Joyce. tions, to deal with the immediate approval. The Chairman of the practising certificate fee for 1999, The Council approved a memo- task of responding to the European Education Committee, Owen as outlined by Mr McEllin. randum on the proposed scheme Commission regarding the Binchy, confirmed that the pro- for issue to the managing partner Commission’s proposal to extend posed increase in fees would be CD-ROMs of every firm. the provisions of the Money-laun- matched by improvements in the The Council overwhelmingly dering directive to lawyers. courses being provided and that approved a proposal from the VAT on legal services Geraldine Clarke noted that it was proposals were also being consid- Chairman of the Practice Geraldine Clarke reported that the a measure of the esteem in which ered to deal with the backlogs. Management Committee, Niall CCBE submission to the EU Mr Fish was held at the CCBE that Farrell, that the Society should Commission in relation to a he had been appointed to chair this Practising certificate fee purchase, at a discounted rate, a reduction in VAT on legal services important task force at European for 1999 set of CD-ROMs being produced had been taken on board by the level. On behalf of the Council, the The Chairman of the Finance by the Attorney General’s Office Commission and it appeared that President complimented Ms Clarke Committee, Ward McEllin, report- containing all Acts of the the Commission’s proposed and Mr Fish on their commitment ed on the committee’s recommen- Oireachtas and statutory instru- amendments to the VAT directive and hard-working representation of dations regarding the practising ments since 1922, for distribution would contain the CCBE’s sug- the profession at the CCBE. certificate fee for 1999. In relation to every solicitors’ firm. gestions. G

JANUARY/FEBRUARY 1999 LAW SOCIETY GAZETTE 29 BRIEFING

Committee reports

has also been criticised. To this guide to professional conduct of Taxation Administration CRIMINAL end, the committee is endeavour- solicitors in Ireland – often referred Liaison Committee ing to establish whether practition- to as The grey guide. The Taxation Administration Criminal Legal Aid ers would be interested in attend- The legal framework for the reg- Liaison Committee (TALC) con- Scheme: delay in introduc- ing a meeting to discuss the issues ulation of the conduct of solicitors tinues to provide an extremely use- tion of tax clearance arising and to consider what in Ireland is the Solicitors Acts, ful forum between the Revenue certificate regulations courses of action are open to 1954 to 1994. In addition, there are Commissioners and practitioners. The Department of Justice has practitioners to deal with the recognised principles of good pro- Practitioners’ involvement in advised the Society that the date situation. The committee would fessional conduct, such as avoid- TALC is made up of representa- by which practitioners on the be pleased to hear from practition- ance of conflict of interest and com- tives from these bodies, namely Criminal Legal Aid Scheme ers in this regard and members pliance with undertakings, contra- the Law Society, Institute of Panel will be required to submit a should write to/telephone Colette vention of which amount to mis- Taxation and CCAB-I. tax clearance certificate (previ- Carey, Solicitor, Criminal Law conduct. The publication of the TALC operates through various ously set at 1 March 1999) has Committee, Law Society of guide in 1988 was an attempt to sub-committees and ad hoc been deferred to a date to be Ireland, Blackhall Place, Dublin 7 state the principles and to convert groups, with the head committee advised (possibly April/May). (tel: 01 6724800). some of the principles into practical (called plenary or main TALC) The date for application to the guidelines in specific situations. monitoring the activities of each Collector General for the certifi- Criminal Legal Aid Scheme: Members are now invited to con- sub-committee and ad hoc group- cate (previously set at 15 January prison visits tribute to the current review by ing while also pursuing its own 1999) has also been deferred. The In order to improve the service pro- making their views known to the agenda. Department will automatically vided to solicitors assigned to cases committee, either generally or on a There is flexibility in the forma- forward an application form to under the Criminal Legal Aid particular topic, in writing or by tion of the committees, and where each solicitor on the current Legal Scheme, the Department has intro- telephone, directed to Therese the tasks for any particular sub- Aid Scheme Panel as soon as the duced a new procedure for claiming Clarke, Solicitor, secretary to the committee have been fulfilled and forms are available and will prison visit fees with effect from 1 committee, Law Society of Ireland, it is considered that any particular advise practitioners of the new October 1998. This will involve the Blackhall Place, Dublin 7 (tel: 01 sub-committee or ad hoc group is application and submission dates. presentation of claim forms in book 8681220). The committee believes no longer necessary, then this par- Practitioners who are not current- format, each form with an individ- that an updated guide will greatly ticular section can be disbanded or ly on the panel but who wish to ual serial number and carbon copy assist the profession. adjourned indefinitely. Alterna- obtain an application form should attached. This will allow the form to Keenan Johnson, Chairman, tively, new project-driven commit- apply to the Courts Division, be completed by a solicitor and cer- Guidance and Ethics Committee tees can be established and the Department of Justice. tified and stamped by a prison offi- flexibility of the entire structure cer with the original completed ensures that issues are dealt with Criminal Legal Aid Fees form being forwarded by the solici- on a timely basis. TAXATION Regulations tor to Finance Division, Killarney, For 1999, the current TALC The committee is receiving an for payment and a copy being sub-committees are: increasing number of complaints retained in the prison for reference Budget submission 1) Audit sub-committee whose from practitioners regarding purposes. The Society’s Taxation Committee principal functions for 1998 anomalies in the above regula- Criminal Law Committee has drafted a detailed submission to have centred around voluntary tions and difficulties which arise the Minister for Finance in relation disclosure. The committee dis- in relation to payments for certain to the 1999 Budget and Finance cussed a code of practice for work carried out under the Bill. A copy has been sent to each Revenue auditors. This has now GUIDANCE AND ETHICS scheme. For example, practition- bar association for information. been published and is effective ers are dissatisfied with the prac- Members who wish to obtain a in respect of audits commencing tice whereby a fee is not paid to Review of guide to copy of the submission should con- since 1 December 1998. A copy the defence where adjournments professional conduct tact Colette Carey, Taxation of the code is available from the are sought by the State and grant- The Guidance and Ethics Committee, Law Society of Ireland, Revenue upon request. The ed. The level of fee paid where Committee has been asked to Blackhall Place, Dublin 7. committee has been discussing a late nolle prosequi is entered review and update the publication A Taxation Committee Revenue’s prosecution criteria

30 LAW SOCIETY GAZETTE JANUARY/FEBRUARY 1999 BRIEFINGBRIEFING

and a survey of cases re-audited the audit sub-committee has held Apprentice survey results On a bare analysis of the fig- to establish whether taxpayers concerning voluntary disclosure. SADSI conducted a survey last ures above, one would wonder who have been subject to an It has also dealt with the proposed year in order to gauge the current why anyone would want to enter audit and who are subsequently introduction of the new pay and work conditions and attitudes of the profession and, indeed, why re-audited have become com- file system. apprentice solicitors. In all, nearly the profession is still such a popu- pliant Each committee/sub-commit- 500 post-professional course lar choice with university gradu- 2) Technical sub-committee. tee generally meets approximate- apprentices were sent the question- ates. Other results of the survey go This committee addresses cer- ly four times a year, or more fre- naire, and there was a response some way to explaining this tain topics of general interest to quently where there is an urgent rate of 15%. apparent anomaly: 74% of respon- the profession. Recent topics need (for example, a meeting is As one would expect, the issue dents stated that they were satis- covered include employee generally always held in connec- of salaries was the main bone of fied with the quality of their work. share option schemes, foreign tion with the publication of a contention. The Celtic Tiger has Few other careers can claim such earnings and residency issues, Finance Bill in any year to deal failed to shed even a few hairs on high job satisfaction ratings, espe- together with termination pay- with issues which arise from the fortunes of apprentice solici- cially ones that pay on average a ments and the signing of tax this). Each committee and sub- tors. The average monthly gross mere £8,500 a year. returns by tax advisers on committee handles a heavy agen- salary of apprentices is £707 (it It would appear, therefore, that clients’ behalf. The committee da and there is usually at least one reduces to £558 after tax). The apprentices as a whole are satis- generally endeavours to prepare major achievement by each sepa- average working week is a surpris- fied with the quality and nature of and agree a memorandum on rate committee on a yearly basis. ingly low 43 hours. We calculated their work despite the low the selected topic, which covers What are sometimes unspoken, (on the basis of there being 4.3 salaries. The job satisfaction rat- general principles, while also however, are minor issues and weeks in a month) that the average ing is backed up by the finding covering areas of uncertainty problems which are solved in a hourly rate of pay for an appren- that 77% of respondents stated 3) Capital taxes ad hoc commit- seamless manner which facilities tice, before tax, is a meagre £3.82 that they intended to practise as tee. This committee was the on-going healthy relationship an hour. Burger King is currently solicitors upon qualification (7% instrumental in the introduc- between the Revenue Commis- advertising jobs, which pay £4 an said that they did not, and 16% tion of a new stamp duty Form sioners and the practitioners hour. Need we say more? were undecided). There was, how- SD4 and the similar form for which is essential for the Irish tax The problem of low salaries is ever, considerable uncertainty capital acquisitions tax, in each system. further compounded by the fact among apprentices as to whether case concerning share valua- Any practitioners experiencing that very few firms pay their they would be offered employ- tions, and speeding up the administrative problems or issues apprentices’ professional and ment after completing their adjudication process. It has so are invited to contact the Law advanced courses fees. In all, only apprenticeship. Only 30% of far been very successful in Society’s Probate, Administration 23% of the respondents’ firms paid apprentices believed that their reducing turnaround time with and Taxation Committee which their fees. There was, however, a firms would be in a position to the Revenue Commissioners. It can arrange to have these matters marked contrast between those offer them a job; 16% expected has also dealt with practical dealt with at TALC, if appropri- working in small and large firms. not to be offered a job; and 54% issues such as the issue of cap- ate. In addition, the views of Some 82% of large firms pay their did not know. ital gains tax clearance certifi- solicitors on the new stamp duty apprentices’ fees, whereas only On the basis of our survey, it is cates and the identification of Form SD4 are welcomed, before 12% of small firms do. In view of clear that there is a genuine desire other administrative issues this pilot scheme is copper-fas- the fact that the total cost of the to work in the profession, but this affecting practitioners in these tened. two courses runs to nearly £5,000, is being hindered by the crippling areas Probate, Administration and an average apprentice would have financial cost. Maybe it’s time for 4) Indirect Taxes Committee. Taxation Committee to donate nine months’ net pay to employers to break the cycle of The issues to be dealt with by cover the cost of the courses. apprentice hardship. this committee in the near Seeking outside financial assis- John Cahir, SADSI Auditor, future will include VAT on the tance is therefore inevitable for the and Louise Cox, SADSI SADSI transfer of business and irrecov- vast majority of apprentices. Education Officer erable VAT costs associated with shares issues Election for auditor 5) Collection Committee. Var- The result of the election for the ious issues such as direct debit auditor to the 115th session of LAW SOCIETY for preliminary tax and practi- SADSI was as follows: OF IRELAND cal issues covering the payment ● Total poll: 141 ON E-MAIL of cheques to the Revenue ● Invalid votes: 15 Commissioners and instalment ● Total valid poll: 126 arrangements are included in Now contactable at the agenda for this committee. Boyle, Aaron: 27 [email protected] Gallagher, Louise: 99 Individual mail addresses The main committee has dealt take the form: with a number of issues over the Louise Gallagher was deemed [email protected] past year including dealing with elected for the 115th session. the outcome of discussions which John Cahir, SADSI Auditor

JANUARY/FEBRUARY 1999 LAW SOCIETY GAZETTE 31 BRIEFING

PRACTICE NOTE Stamp duty: new Form SD4 n early 1998 the Revenue with details of the method of valua- the client or from the auditors of tionships between parties, it is I Commissioners (in consultation tion used for the shares. Practition- the company whose shares are advisable that solicitors would not with the Law Society and other bod- ers should note the following in rela- being transferred. Accordingly, sign the form but would ask their ies) introduced a new Form SD4 on a tion to the form: purchasers of unquoted shares client (the purchaser) or their pilot basis concerning the transfer of 1. The scheme is still operating on a should endeavour to accumulate client’s auditors to sign the form. shares in unquoted companies. The pilot basis and therefore any com- the relevant information for com- form has been in use for the past cou- ments or feedback are welcome pletion of the form before com- Any queries or comments in relation ple of months and has apparently and should be directed to the pletion of the transaction so that to the form are welcomed as soon as greatly increased the turnaround Probate Administration and the form can be submitted along possible and will be presented to the time in stamping and valuation of Taxation Committee of the Law with the share transfer forms at Revenue Commissioners for consid- such shares. Society the appropriate time for stamping eration in finalising the scheme. The form requires various general 2. Part six of the form containing 3. As the form contains certain fac- details of the instrument and the valuation details will generally tual matters, such as valuation Probate, Administration and transaction to be stated together require input either directly from details and confirmation of rela- Taxation Committee

PRACTICE NOTE Memorandum: withholding tax and penalty interest

herea purchaser is resident vendor, no income tax holding tax at the standard rate provisions of section 31 of the W required to pay penalty can be deducted unless it was the should be stopped by the purchas- Finance Act, 1974 whereby a gen- interest, income tax cannot be intention of the parties that the er company. eral obligation to stop tax at the deducted from the interest pay- transaction would not be closed Where interest is purely penal- standard rate from yearly interest ment if the purchaser is an indi- in under one year, in which case ty interest on a transaction which payments is set out. vidual. However, if the purchaser the transaction might be viewed will be completed within a year, is a company and is paying the as a yearly loan. If a ‘yearly loan’ no tax can be stopped. Probate, Administration and proceeds of the sale to an Irish situation does exist, then with- Practitioners should note the Taxation Committee Leave it to the experts!

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32 LAW SOCIETY GAZETTE JANUARY/FEBRUARY 1999 BRIEFINGBRIEFING

LEGISLATION UPDATE: 14 NOVEMBER – 31 DECEMBER 1998 ACTS PASSED recognition of schools for the purposes enforcement of judgments in civil and Stud Act, 1945 to enable the Minister Appropriation Act, 1998 of funding by public funds; the estab- commercial matters (‘the 1968 conven- for Agriculture and Food to sell and Number: 48/1998 lishment of the inspectorate on a statu- tion) and the protocol on the interpre- otherwise deal with the National Stud Contents note: Appropriates to the tory basis; the establishment of boards tation of that convention by the Farm, Co Kildare. proper supply services and purposes of management of schools; the estab- European Court of Justice. Consoli- Date enacted: 8/12/1998 sums granted by the Central Fund lishment and role of parents’ associa- dates the provisions of the Jurisdiction Commencement date: 8/12/1998 (Permanent Provisions) Act, 1965, and tions; the functions of principals and of Courts and Enforcement of makes certain provisions in relation to teachers; appeals by students or their Judgments Acts, 1988 and 1993. Tourist Traffic Act, 1998 financial resolutions passed by Dáil parents; the making of regulations by Date enacted: 23/12/1998 Number: 45/1998 Éireann on 2/12/1997. the Minister; the establishment of the Commencement date: Commence- Contents note: Increases the statuto- Date enacted: 18/12/1998 National Council for Curriculum and ment order/s to be made ry limit, from £22 million to £50 mil- Commencement date: 18/12/1998 Assessment and regulation of the State lion, on the aggregate amount of examination system. Plant Varieties (Proprietary grant-in-aid that may be paid to Bord Carriage of Dangerous Goods by Date enacted: 23/12/1998 Rights) (Amendment) Act, 1998 Fáilte to support tourism capital devel- Road Act, 1998 Commencement date: Commence- Number: 41/1998 opment works. Amends and extends Number: 43/1998 ment order/s to be made Contents note: Provides for ratifica- the Tourist Traffic Acts, 1939 to 1995. Contents note: Enables effect to be tion by the State of the 1991 Date enacted: 12/12/1998 given to the European agreement con- Fisheries and Foreshore International convention for the pro- Commencement date: 12/12/1998 cerning the international carriage of (Amendment) Act, 1998 tection of new varieties of plants dangerous goods by road (ADR), and Number: 54/1998 (‘UPOV convention’) and implements Voluntary Health Insurance to European Union Directives 94/55/EC Contents note: Makes further provi- the provisions of Council Regulation (Amendment) Act, 1998 on the transport of dangerous goods sion in relation to applications for 2100/94/EC setting up a community Number: 46/1998 by road and 95/50/EC on uniform pro- aquaculture licences and confirms a plant variety rights system. Amends Contents note: Enables the Voluntary cedures for checks on the transport of number of applications for aquacul- and extends the Plant Varieties Health Insurance (VHI) Board, with the dangerous goods by road. ture licences; provides for additional (Proprietary Rights) Act, 1980. consent of the Minister for Health and Date enacted: 2/12/1998 powers to deter unauthorised devel- Date enacted: 16/11/1998 Children, to act as agent for the sale of Commencement date: Commence- opments and the deposit of unaccept- Commencement date: Commence- an international healthcare plan under ment order/s to be made able or harmful matter on the fore- ment order to be made which insurance cover may be provided shore, and provides for related mat- against healthcare costs incurred while Comptroller and Auditor General ters. Amends and extends the Fisheries Protections for Persons Reporting residing temporarily outside the State. and Committees of the Houses of Acts, 1959 to 1997, the Foreshore Act, Child Abuse Act, 1998 Amends and extends the Voluntary the Oireachtas (Special Provisions) 1933 and the Fishery Harbour Centres Number: 49/1998 Health Insurance Acts, 1957 and 1996. Act, 1998 Act, 1968. Contents note: Grants immunity Date enacted: 15/12/1998 Number: 47/1998 Date enacted: 23/12/1998 from civil liability to any person who in Commencement date: 15/12/1998 Contents note: Provides for the Commencement date: 23/12/1998 good faith reports a child to be a vic- examination and investigation by the tim of abuse and contains provisions to Western Development Comptroller and Auditor General of George Mitchell Scholarship Fund protect any person who makes such Commission Act, 1998 the assessment and collection by the Act, 1998 report from unfair dismissal from his Number: 42/1998 Revenue Commissioners, during such Number: 50/1998 or her employment. Contents note: Establishes the period as may be specified by resolu- Contents note: Establishes a fund in Date enacted: 23/12/1998 Western Development Commission on tion by Dáil Éireann, of income tax the United States to be known as the Commencement date: 23/1/1999 a statutory basis – to promote econom- (deposit interest retention tax) which George Mitchell Scholarship Fund for (per section 7(2) of the Act) ic and social development in the coun- certain financial institutions were the purpose of providing scholarships ties of Clare, Donegal, Galway, Leitrim, legally required to deduct from certain for citizens and nationals of the United Scientific and Technological Mayo, Roscommon and Sligo – and pro- deposits of money held with them. States who are attending universities Education (Investment) Fund vides for the operation of the Western Amends the Committees of the Houses or colleges of higher learning in the (Amendment) Act, 1998 Investment Fund by the commission. of the Oireachtas (Compellability, United States to enable them to study Number: 53/1998 Date enacted: 25/11/1998 Privileges and Immunities of or carry out research in universities in Contents note: Amends and extends Commencement date: Establish- Witnesses) Act, 1997, and the the State. The fund is a tribute to the Scientific and Technological ment day order to be made (per sec- Comptroller and Auditor General Act, George Mitchell’s role as Chairman of Education (Investment) Fund Act, tion 6 of the Act) 1923. the Northern Ireland Peace Talks. 1997. Increases payments into the Date enacted: 16/12/1998 Date enacted: 23/12/1998 fund, established under the 1997 Act, SELECTED STATUTORY Commencement date: 16/12/1998 Commencement date: 23/12/1998 for the year 1998 and extends the INSTRUMENTS areas of research and development for Control of Dogs (Amendment) Education Act, 1998 Jurisdiction of Courts and which payments out of the fund may Act, 1992 (Commencement) Order Number: 51/1998 Enforcement of Judgments Act, be made. 1998 Contents note: Provides for a range 1998 Date enacted: 23/12/1998 Number: SI 443/1998 of issues relating to rights and duties Number: 12/1998 Commencement date: 23/12/1998 Contents note: Appoints 1/2/1999 as arising in respect of education, other Contents note: Enables Ireland to the commencement date for the Act. than third-level education, and pro- ratify the Convention on the accession State Property Act, 1998 vides for the structure and administra- of Austria, Finland and Sweden (‘the Number: 44/1998 Control of Dogs Regulations 1998 tion of the education system. The main 1996 Accession convention’) to the Contents note: Amends the State Number: SI 442/1998 provisions of the Bill provide for: the convention on jurisdiction and Property Act, 1954 and the National more ➜

JANUARY/FEBRUARY 1999 LAW SOCIETY GAZETTE 33 BRIEFING

LEGISLATION UPDATE: 14 NOVEMBER – 31 DECEMBER 1998 (CONTD) Contents note: Consolidate and Number: SI 520/1998 Number: SI 438/1998 Contents note: Provide that a solici- revoke certain regulations on control Contents note: Prescribe the Minister Contents note: Appoints 14/11/1998 tor, who is not an authorised invest- of dogs. for Finance and the Minister for as the commencement date for section ment business firm or who does not Enterprise, Trade and Employment for 6(2) of the Act, in so far as it relates to hold himself out as a provider of invest- Freedom of Information Act, 1997 the purposes of section 25(6) in rela- section 24 of the National Monuments ment business services or investment (Section 6(9)) Regulations 1998 tion to the issue of a certificate that a Act, 1930, and for section 48 of the advice, who applies to the Law Society Number: SI 517/1998 record is an exempt record. Act, in so far as it relates to paintings of Ireland for an annual practising cer- Contents note: Relate to records of in the care of the Hugh Lane Municipal tificate will undertake: (a) only to pro- contractors to public bodies. Freedom of Information Act, 1997 Gallery of Modern Art. vide investment business services (Section 28(1)) (Amendment) (which include the activities of an Freedom of Information Act, 1997 Regulations 1998 Nursing Homes (Subvention) insurance intermediary) or investment (Section 17) Regulations 1998 Number: SI 521/1998 (Amendment) Regulations 1998 advice to clients incidental to the pro- Number: SI 518/1998 Contents note: Relates to requests Number: SI 498/1998 vision of legal services to such clients; Contents note: Provide similar for records containing joint personal Organisation of Working Time (b) not to hold himself out as being an arrangements for requesters in using information. (Code of Practice on Sunday investment business firm; and, (c) when section 17 of the Freedom of Working in the Retail Trade and providing such incidental services and Information Act, 1997, as currently Freedom of Information Act, 1997 Related Matters) (Declaration) acting as an investment product inter- obtain when making a standard (Section 47(3)) (Amendment) Order 1998 mediary, not to hold an appointment request for access to information Regulations 1998 Number: SI 444/1998 in writing other than from Central under section 7 of the Act. Provide for Number: SI 522/1998 Contents note: Prescribe a code of Bank of Ireland-authorised financial assistance to be given by public bodies Contents note: Provide for an addi- practice on Sunday working in the firms, institutions or persons situate in to requesters when using the Act to tional category of record for which a retail trade for the purposes of the the State. Provide that a solicitor, in have personal information held on charge can be imposed. Organisation of Working Time Act, respect of whom a practising certificate them corrected when that information 1997, section 14. is in force who also chooses to operate is inaccurate or misleading. Freedom of Information Act, 1997 as an authorised investment business (Third Schedule) (Amendment) Safety, Health and Welfare at firm providing investment business ser- Freedom of Information Act, 1997 Regulations 1998 Work (Children and Young vices (which includes the activities of an (Section 18) Regulations 1998 Number: SI 524/1998 Persons) Regulations 1998 insurance intermediary) or investment Number: SI 519/1998 Contents note: Correct a typographi- Number: SI 504/1998 advice not incidental to the provision Contents note: Provide similar cal error in the third schedule to the Contents note: Implement the health of legal services, or who holds himself arrangements for requesters in using Freedom of Information Act, 1997. and safety aspects of Council Directive out as providing such services or advice, section 18 of the Freedom of Also provide for the addition of a ref- 94/33 on the protection of young peo- will be required to provide forms of Information Act, 1997 as currently erence to the Access to Information on ple at work. indemnity against losses due to his obtain when making a standard the Environment Regulations 1998, default, that may be suffered by clients request for access to information and of a reference to the Health Safety, Health and Welfare at to whom he provides such non-legal under section 7 of the Act. Provide for Services Regulations 1971 to the third Work (Night Work and Shift Work) services, of an equivalent level to that assistance to be given by public bodies schedule. This means that the Freedom Regulations 1998 provided (under the Solicitors Acts to requesters when using the Act to of Information Act will override Number: SI 485/1998 1954 to 1994) by law to clients who are obtain reasons for decisions taken that restrictions on access to information in receipt of legal services from a solic- particularly affect them. under those regulations. Solicitors Acts 1954 to 1994 itor in respect of whom a practising (Investment Business and Investor certificate is in force but who is not so Freedom of Information Act, 1997 National Cultural Institutions Act, Compensation) Regulations 1998 operating. (Section 25(6)) Regulations 1998 1997 (Commencement) Order 1998 Number: SI 439/1998 Prepared by Law Society Library

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34 LAW SOCIETY GAZETTE JANUARY/FEBRUARY 1999 BRIEFINGBRIEFING Personal injury judgments Road traffic accident – hours. She suffered no bone dam- was supported by the fact that the The manager of the garage gave two car collision – ages or fractures although she defendant was not driving to the evidence in court of being proud of narrow country road – appeared to have some loss of left as was practicable. But the the manner in which the service acute anxiety reaction – consciousness at the scene of the judge held that the plaintiff was station was maintained. liability in dispute collision. For some time after the driving too fast given the nature of accident, the plaintiff complained the road. The judgment Case of lack of stamina, headaches and The judge held that the plaintiff An ex tempore judgment was deliv- Anne O’Connor Gordon v had become frightened of busi- was entitled to recover damages ered by Carney J in the High Court Diethard Schmid; High Court on ness. against the defendant but was one- on Circuit, Waterford, on 17 Circuit in Galway before the Hon Medical evidence at the trial third contributorily negligent February 1997. Having outlined the Mr Justice Peter Kelly, judgment was to the effect that the plaintiff because of her speed. basic facts of the case, the judge of 6 February 1997. suffered a severe acute anxiety Accordingly, she was entitled to stated he accepted the evidence of reaction to her trauma. Her symp- recover two-thirds of the damages John Payne and the corroboration of The facts toms were out of proportion to the against the defendant. The judge the fall by his mother, described by Anne O’Connor Gordon, the physical injuries she suffered. was satisfied that Mrs O’Connor the judge as an impressive witness. plaintiff, an artist and art teacher, Due to her complaints, a special- Gordon’s physical injuries were The judge held that the evidence was driving her Opel Kadett car ist arranged for a CT scan but it undoubtedly minor but that the established that there was no system on a country road between revealed no evidence of any sig- ‘side effects’ were more pro- of supervision and inspection in Tullycross and Lettergesh, nificant intra-cranial abnormality. nounced. No loss of earnings was operation at the time of the accident County Galway. At about 4.50pm She was also referred to a neurol- proved. The judge held that there to ensure that there was no accumu- on 11 September 1992, a sunny ogist. The plaintiff also attended a was no question of future pain and lation of diesel and water in the day, her car was in collision with neuro-psychologist and a consul- suffering. For pain and suffering precincts of the service station. The a Volvo estate car. The accident tant psychiatrist. The psychiatrist to the date of the trial, he awarded judge noted that Richard Ryan, who occurred just around a bend on did not find any psychiatric the plaintiff £20,000 with agreed was in charge of receiving the cash the road described by a garda abnormality. special damages of £8,406.50. at the service station on the day, did sergeant at the scene of the acci- Mrs O’Connor Gordon did Reduced by one-third for her con- not leave his cash till to go out to dent as being ‘near enough a state that she finds difficulty in tributory negligence, Mrs look at the scene of the accident right-angled one’. The plaintiff, remembering a name in connec- O’Connor Gordon was awarded because he considered that his first in evidence, estimated she was tion with her academic work £18,937.66. priority was the cash and that he had driving at around 25 to 30 miles when giving a lecture. She had, Circuit Court costs were an overriding belief that he should per hour on her correct side of the however, no long-term physical awarded and a certificate for never leave the cash unattended. road when the defendant’s car symptoms. senior counsel was granted by the Finding for the plaintiff, Carney appeared in front of her on the Mrs O’Connor Gordon issued judge. J held that none of John Payne’s wrong side of the road. The plain- High Court proceedings for dam- injuries would result in permanent tiff stated there was enough room ages including damages to her car Public liability – fall in sequelae or residual symptoms, but for the defendant’s car to pass, and damages for personal injury. a pool of water at his sporting career had been ‘seri- had it been on its correct side. She petrol service station – ously circumscribed’. Carney J took evasive action, but she stated The judgment liability in dispute awarded him general damages in the other car made no attempt to An ex tempore judgment in the the single sum of £30,000; and there stop and ran into her. case was delivered by Kelly J in Case was also an agreed sum of special Ms Kohler was a passenger in the High Court on Circuit in John Payne v Artane Service damages amounting to £251. the Volvo and gave a different Galway on 6 February 1997. Station; High Court on Circuit in Mr McCarthy SC for the service version of the collision. She said Having outlined the facts of the Waterford before the Hon Mr station sought a stay on the judg- the plaintiff’s car appeared at case, and having the benefit of the Justice Paul Carney, judgment of ment arguing that the award was excessive speed from around the photographs, observing that the 17 February 1997. excessive having regard to the med- bend. photographs ‘speak for them- ical evidence and to the weight of Garda Sergeant Folen, who selves’, Kelly J held that both par- The facts the evidence put forward by the ser- investigated the accident, and ties shared blame for the colli- John Payne, a young sportsman of vice station. Having listened to attended at the scene, gave evi- sion. The judge was influenced by considerable distinction, fell in a legal argument, Carney J put a stay dence that the driver of the defen- the fact that there was an uncon- pool of water and diesel at a petrol on the judgment on the basis that dant’s car admitted driving at the troverted admission to the investi- service station in Waterford. His £15,251 was paid to Mr Payne. centre of the road but refused to gating garda sergeant that the mother witnessed the fall. Mr Costs were awarded to Mr Payne accept liability. defendant’s car was on the centre Payne suffered from initial con- with no stay. G Photographs were taken after of the roadway at the time of the cussion, was taken to hospital the collision before the cars had collision. The driver had not been where he remained for two days. These judgments were summarised been moved. called as a witness to contradict He suffered soft tissue injuries to by Dr Eamonn Hall, Solicitor, from The plaintiff was taken to hos- that evidence. his neck and also sustained a soft Doyle court reports of personal pital where she remained for 48 Kelly J said that the evidence tissue injury to his back. injury judgments.

JANUARY/FEBRUARY 1999 LAW SOCIETY GAZETTE 35 BRIEFING

ILT digest of legislation and superior court decisions Compiled by David P Boyle

the defendant was treating the so deposited. By virtue of section ARBITRATION BANKING policy as void with retrospective 5 of the 1978 Act, it was bound to effect, it could not rely on the repay all deposits not later than 15 Arbitration clause arbitration clause since that Registrar of Friendly November 1993. This caused cer- survives avoidance of clause formed part of the void Societies entitled to tain problems for the society and rest of contract contract. In granting the defen- appoint inspector its associated companies. In 1984 ● An arbitration clause was a self- dant’s application to stay the pro- ● The Registrar of Friendly the respondent appointed an contained contract which could ceedings, it was held that: Societies was entitled to inspector over the society and survive the avoidance of the ● There was a distinction appoint an inspector in order to later on that day a provisional liq- remaining terms of a contract. between an arbitration clause investigate the affairs of the uidator was also appointed over and the rest of a contract. society in question, and he was it. The inspector examined the The defendant company refused While the purposes of a con- entitled to continue the investi- first-named applicant on oath. to indemnify the plaintiff on foot tract might have failed, the gation notwithstanding the fact Following the making of the of his motor insurance policy on arbitration clause was not one that there were winding-up pro- inspector’s report, the first-named the grounds that: the plaintiff had of the contract’s purposes. This ceedings in place in respect of respondent informed the appli- failed to disclose a material fact to principle applied where one that society. cants separately that it was his it (his conviction for drunk dri- party sought to avoid or intention to consider making a ving) at any renewals of the insur- rescind a contract on the In 1986, a conditional order of direction under section 13(3) of ance policy; that this was non-dis- ground of a misrepresentation prohibition was made by the High the 1978 Act, requiring them to closure of a material fact under or non-disclosure, whether the Court against the respondent in pay all or a proportion of the the contract; that the defendant latter were fraudulent, negli- respect of the proposed exercise expenses of or incidental to the was exercising its entitlement to gent or innocent. Provided the by him of his powers pursuant to investigation which had been car- avoid the policy; and that the words of the clause were suffi- section 13(3) of the Industrial and ried out by the inspector. The effect of the defendant’s avoid- ciently wide, these were mat- Provident Societies (Amendment) costs amounted to some ance was to invalidate retrospec- ters which could be referred to Act, 1978. In 1988, the High Court £200,000. The applicants sought tively each renewal of the policy arbitration. The arbitration allowed the cause shown and and were granted a conditional after the conviction. The plaintiff clause was a self-contained refused to make absolute the con- order of prohibition preventing did not accept the validity of the contract and it had survived the ditional order against the respon- the first-named respondent from defendant’s purported avoidance avoidance of the contract dent. The applicants appealed availing of section 13(3). The of the insurance policy, and ● It was a matter of construction against that decision to the applicants applied to have the sought specific performance of whether the clause was wide Supreme Court and also chal- conditional order of prohibition the insurance contract. The defen- enough to cover the dispute. In lenged the constitutionality of the made absolute. They contended dant sought an order staying the this case it was; the defendant impugned provision. The that the appointment of the proceedings, pursuant to section 5 was entitled to have the dispute Supreme Court upheld the consti- inspector had been unnecessary of the Arbitration Act, 1980, on referred to arbitration in accor- tutionality of the provision, and as a provisional liquidator had foot of an arbitration clause in the dance with the policy. went on to deal with the merits of also been appointed. In reply, the policy which provided that ‘all the applicants’ appeal. The soci- respondent contended that the differences arising out of this pol- Doyle v Irish National Insurance ety in question, formed in 1974, inspector had wider powers than icy shall be referred’ to arbitra- Company plc (Kelly J), 30 sought and accepted deposits from the liquidator and could investi- tion. The plaintiff claimed that as January 1998 the public and loaned out money gate the affairs of associated com-

36 LAW SOCIETY GAZETTE JANUARY/FEBRUARY 1999 BRIEFINGBRIEFING

panies. Following earlier proceed- enforcement of such measures plaintiff claimed that it was essen- given in the physical presence ings, the respondent decided to of protection in all contracting tial for the success, if not survival, of the accused. levy the charges on the applicants states, and of its business that it should be in in his own name, and not in the ● Establish such co-operation a position to export to the conti- The defendant sought a declara- name of the company. In dismiss- between the authorities of the nent. The defendant submitted tion that certain sections of the ing the appeal, it was held that: contracting states as may be that because of the adverse public- Criminal Evidence Act, 1992 were ● The extent and powers of the necessary in order to achieve ity generated by the animal rights invalid as repugnant to the inspector went far beyond the the purposes of the convention. activists and the little profit it Constitution. He appealed the powers of the liquidator, as he made in this trade that it should High Court’s dismissal of this was confined to investigating The text of the convention is not be required to bear the burden claim and the refusal to grant him the affairs of only those compa- appended to the Bill as a schedule. of providing this service. It further an order of certiorari in respect of nies which were in liquidation Protection of Children (Hague submitted that its refusal to carry his conviction for sexual assault of ● The respondent was entitled to Convention) Bill, 1998 the livestock did not amount to an a 14 year-old girl. The relevant appoint the inspector in order abuse of a dominant position and, statutory sections concern the giv- to investigate the affairs of the even were it an abuse, the defen- ing of evidence through a live society and he was entitled to dant was objectively justified television link in certain criminal COMPETITION continue the investigation because it was not in its commer- cases involving offences of a sex- notwithstanding the fact that cial interests to provide this ser- ual or violent nature. They permit there were winding-up pro- Carrier obliged to vice. Interlocutory relief was a witness under 17 years of age to ceedings in place continue to provide refused in the High Court. give evidence in this manner ● The respondent had an essen- service In allowing the appeal and unless the court sees good reason tial obligation to see that the ● It was not open to a private granting the relief sought, it was to the contrary, and in other cases rights of depositors were safe- undertaking to yield too tamely held that: permit such procedure with the guarded and that the public to threats of vandalism, or ● A prima facie case was made leave of the court. The defendant interest was served adverse publicity, if that under- out that the defendant was in a claimed that such procedure con- ● The investigation was worth- taking’s prime duty under dominant position and that, stituted an interference with his while, even if it did involve a Community law had been prima facie, there was an abuse constitutional right to a fair trial. certain duplication of effort breached. of that position In dismissing the appeal, it was with the liquidator’s activities. ● As there was a fair question to held that: The plaintiff was a haulier and be decided on the article 86 ● An essential ingredient in the State (Plunkett and Ponderwood livestock transporter and was point, no view was expressed concept of fair procedures was Society Limited) v Registrar of engaged in the business of export- on the applicability or other- that an accused person should Friendly Societies (Supreme ing live animals from Ireland to wise of article 34 of the Treaty have the opportunity to hear Court), 9 February 1998 the continent. The defendant, a of Rome and test by examination the evi- limited liability company, was a ● In the circumstances, the bal- dence offered by or on behalf member of the P&O group. The ance of convenience favoured of his accuser defendant operated a ferry service granting the injunction ● The impugned provisions of CHILDREN from Ireland to France, which ser- ● It was not open to a private the Act did not restrict in any vice included the transportation of undertaking to yield too tamely way the rights of an accused as Hague convention to livestock. From August 1994 until to threats of vandalism or established by the constitution- be ratified October 1994, the defendant car- adverse publicity if that under- al jurisprudence of the courts Proposed legislation will, if ried livestock for breeding and fat- taking’s prime duty under and caselaw. The assessment of passed, enable the State to ratify tening purposes. From October Community law had been the credibility of the testim-ony the 1996 Hague convention on 1994 to 30 July 1996, the defen- breached. of a child witness did not jurisdiction, applicable law, dant carried livestock for breeding require that the witness be recognition, enforcement and co- purposes only. In March 1997, the Hinde Livestock Exports Ltd v made to give evidence in the operation in respect of parental defendant recommenced the trans- Pandoro Ltd, Gernon v Pandoro physical presence of the responsibility and measures for port of livestock for fattening pur- Ltd (Supreme Court), 18 accused. The requirements of the protection of children. The poses as well as for breeding pur- December 1997 fair procedures were adequate- convention seeks to: poses. Three months later the ly fulfilled by requiring that the ● Determine the state whose defendant informed the Minister witness give evidence on oath authorities have jurisdiction to for Agriculture that all shipments and be subjected to cross- CONSTITUTIONAL take measures directed to the of livestock for fattening and examination, and that the judge protection of the person or slaughter would cease as of 31 and jury have ample opportuni- property of a child July 1997. The plaintiff instituted Evidence by video-link ty to observe the witness’s ● Determine which law is to be proceedings seeking an order not an interference with demeanour while giving evi- applied by such authorities in directing the defendant to contin- right to a fair trial dence and undergoing cross- exercising their jurisdiction ue to provide a livestock export ● An accused person’s right to a examination ● Determine the law applicable service to the plaintiff for breed- fair trial did not include the ● Fair procedures did not require to parental responsibility ing and fattening purposes pend- right in all circumstances to a case-by-case determination as ● Provide for the recognition and ing the trial of the action. The require that the evidence be to whether a person under 17

JANUARY/FEBRUARY 1999 LAW SOCIETY GAZETTE 37 BRIEFING

would be traumatised by giving the first-named applicant to con- lished; the applicant mental ele- two of her female colleagues con- evidence in court in the tinue with his address. The appli- ment or animus possidendi had tended that they were entitled accused’s presence, and the cants were all convicted and also to exist under the provisions of the 1974 Oireachtas was entitled to enact refused leave to appeal. They ● There was evidence on which Act to the same rate of pay as two legislation permitting the giv- appealed to the Court of Criminal the jury could be satisfied male radio operators, the com- ing of evidence by such persons Appeal against the refusal to give beyond a reasonable doubt that parators, who were also employed by live television link unless them leave to appeal. They con- each of the applicants had, and at the airport and worked in the the court saw good reason to tended that the prosecution had knew that he had, the bales in same office as the applicant. The the contrary. not discharged the burden of proof his control, that the bales con- applicant contended that the work on them to prove that the appli- tained something and that the carried on by her and the com- Donnelly v Ireland (Supreme cants knew that they were han- bales in fact contained the con- parators was not the same work Court), 22 January 1998 dling packets which contained trolled drug specified in the but was of a ‘similar nature’, and controlled drugs. The applicants indictment that any differences between the submitted that they had no knowl- ● The applicants could not com- work performed and the condi- edge that they were handling plain where, as here, the charge tions under which it was per- CRIMINAL drugs and that the prosecution had by the trial judge was unduly formed occurred only infrequently failed to prove that they did have favourable to them and placed a or was of small importance. The International War Crimes such knowledge. In reply, the heavier onus than was required applicant’s claim was assessed by Tribunals Bill, 1997 prosecution contended that it had on the prosecution, and they an Equality Officer who fully This Bill has been passed by Dáil discharged the burden of proof on were nonetheless subsequently investigated the work done by the Éireann. it by adducing proof that the appli- convicted applicant and the comparators. cants had reasonable grounds for ● The exception contained in The officer found that the work Circuit Court jurisdiction suspecting that they were in pos- s24(1) of the 1984 Act did not was similar in nature. However, upheld session of controlled drugs, even apply in this case as the first- he went on to find that the com- ● If it was being alleged on in the absence of actual knowl- named applicant was legally parators’ work frequently differed behalf of any of the applicants edge. In refusing all the applica- represented from the beginning from the applicant’s, and that the that they had been brought tions for leave to appeal, it was of the trial and was represented differences which occurred were before the District Court by a held that: save for the closing stages of more than small importance in process so tainted with illegali- ● The issue as to whether the ● The balance would be tilted that they required the compara- ty as to warrant their immediate applicants were lawfully arrest- unfairly in the direction of the tors’ additional qualifications and release, that case should have ed pursuant to section 30 of the first-named applicant if, after skills. He further found that the been made at that stage by way Offences Against the State Act, discharging his legal represen- comparators’ work required a of an application for habeas 1939 was relevant only to the tatives after they had tested the greater amount of skill, and could corpus to the High Court; as no admissibility of the statements strength or otherwise of the include the handling of maritime such challenge was made, the allegedly made by them while prosecution case in full, the emergencies. He also found that Circuit Court clearly had juris- in custody prosecution was deprived of the the comparators had supervisory diction to try each of applicants ● If it was being alleged on opportunity of making a clos- and administrative responsibilities on the counts laid in the indict- behalf of any of the applicants ing speech. not shared by the applicant. He ment. that they had been brought therefore concluded that the appli- before the District Court by a Director of Public Prosecutions v cant and the comparators did not The applicants were charged with process so tainted with illegali- Byrne, Healy and Kelleher (Court perform like work within the various offences relating to the ty as to warrant their immediate of Criminal Appeal), 17 meaning of the Act. The officer’s illegal importation into the State release, that case should have December 1997 report was appealed to the Labour of controlled substances. At their been made at that stage by way Court. The court upheld the trial, the first-named applicant of an application for habeas report’s findings. That decision decided to discharge his legal rep- corpus to the High Court was appealed to the High Court. EMPLOYMENT resentatives. None of the appli- ● There was ample evidence The High Court found that the cants went into evidence. At the before the jury that the four appeal was one on the facts and close of the hearing, counsel for applicants were the same four Case for unequal pay not not on the law. It held that the alle- the prosecution made a closing men who were observed by the made out gation of discrimination had not address to the jury. After that, the Gardaí on the night of their ● Taken in the context of the been made out before the court first-named applicant began to arrest report of the Labour Court as a and that the nature of the true address the jury personally. ● The probative value of evi- whole, and the report of the employment had been found to be Shortly after commencing his dence that three of the appli- Equality Officer which it effec- different. The applicant appealed address, the prosecution objected cants had been seen earlier on tively adopted, there were ade- to the Supreme Court on the to the first-named applicant’s the evening of their arrest out- quate reasons given to the grounds that the Labour Court had address. The prosecution contend- weighed any possible prejudice applicant for the decision given inadequate reasons for its ed that the first-named applicant that it may have excited in the reached by the Labour Court. decision. In dismissing the appeal, was deliberately attempting to mind of the jury it was held that: have the jury discharged. The trial ● It was not sufficient for mere The applicant was employed at ● For the claims to succeed, it judge agreed and refused to allow physical possession to be estab- Dublin Airport. The applicant and would have to be established

38 LAW SOCIETY GAZETTE JANUARY/FEBRUARY 1999 BRIEFINGBRIEFING

that the applicant and the com- assessment (EIA) that the injuries were minor at ● The respondent, acting in a parators were engaged in ‘like ● Set out exemptions from the least without further investiga- quasi-judicial manner, breached work’ as that term was defined requirement to prepare an EIA tion. the rules of natural justice by in the 1974 Act ● Extend the provisions concern- relying only on the Garda ● The possibility of establishing ing the furnishing of additional The respondent refused to allow Surgeon’s report and not exam- equality of demands or identify- information relating to an EIA the applicant to apply to the High ining the medical evidence sub- ing the basis for any inequality ● Include provisions relating to Court for compensation pursuant mitted on behalf of the appli- must be enhanced in proportion applications for planning per- to the Garda Síochána cant to the degree of similarity mission involving an EIA (Compensation) Act, 1941. The ● Where there was respectable between the allegedly different where the proposed develop- applicant sought judicial review medical opinion from the appli- works ment may have effects on of that decision and sought, inter cant which indicated that his ● There was no doubt that the another Member State of the alia, a mandatory injunction com- injuries were not of a minor Labour Court fully intended to EC, and pelling the respondent to authorise character, the respondent would endorse the findings and con- ● Extend the time available to a the applicant’s application for not be entitled to form such a clusions of the Equality Officer planning authority in relation to compensation. The applicant had view at least without further ● It was clear that the issue to be such an application and enable been injured while on duty. He investigation determined by the Labour Court the authority to enter into con- applied for compensation. Five ● The respondent would have to was one of fact, and it was sultations with the Member years later the respondent ruled have an open mind and not determined by reference to the State concerned. that his injuries were of a minor form any such opinion. conclusions reached by the character and that they had not Equality Officer European Communities (Environ- been sustained in the course of the Merrigan v Minister for Justice ● Taken in the context of the mental Impact Assessment) performance of a duty involving (Geoghegan J), 28 January 1998 report of the Labour Court as a (Amendment) Regulations 1998 special risk. Accordingly, the whole, and the report of the (SI No 351 of 1998) respondent dismissed the applica- Trainee garda loses Equality Officer which it effec- tion. The applicant contended that appeal tively adopted, there were ade- Packaging and packaged in making her decision that his The applicant was a probationary quate reasons given to the appli- products injuries were of a minor character, member of the Garda Síochána. In cant for the decision reached by New regulations amend the exist- the respondent relied only on the 1993, the applicant was involved in the Labour Court ing packaging rules so as to pro- medical report of the Garda an incident in a licensed premises. ● Once the question of ‘like vide that no person may supply Surgeon, and not on any of the The incident was the subject of an work’ was decided against the packaging or packaged goods to applicant’s own medical reports. investigation and the applicant applicant, the question of other the domestic market unless the In granting the relief sought, it challenged certain aspects of the qualifications did not arise packaging concerned complies was held that: investigation in the High Court and ● The matters canvassed on the with specified requirements as to ● It was difficult to see how the succeeded. On appeal, the Supreme appeal were matters of fact on its packaging and composition. respondent could have formed Court upheld the trial judge’s find- which there had been ample Waste Management (Packaging) the opinion that the applicant’s ing that there had been a lack of evidence to support the deci- (Amendment) Regulations 1998 injuries were minor in charac- due process. However, the court sions reached. (SI No 382 of 1998) ter within the meaning of the overturned the trial judge’s ruling Act, given that there were that there could be no further pro- O’Leary v The Minister for undisputed continuing adverse ceedings in the matter. As a result, Transport, Energy and Communi- sequelae four and a half years inquiries into the matter recom- GARDA SÍOCHÁNA cations (Supreme Court), 3 Feb- after the incident menced. The first-named respon- ruary 1998 ● On the basis of the Garda dent was appointed to be the new Garda compensation Surgeon’s report, the appli- officer in charge of the investiga- decision by Minister cant’s injuries were not minor tion. The applicant sought an order overruled within the meaning of the Act, of prohibition preventing the first- ENVIRONMENT ● The Minister, acting in a quasi- and so the respondent’s deci- named respondent from continuing judicial manner, breached the sion was irrational with disciplinary procedures Alterations to EIA regime rules of natural justice by rely- ● The expression in the Act ‘of a against the applicant. The applicant Regulations have been made ing only on the Garda minor character’ implied a con- contended that the first-named amending the European Surgeon’s report and not exam- sideration of the nature of the respondent conducted the investi- Communities (Environmental ining the medical evidence sub- injury rather than the amount of gation with a measure of bias Impact Assessment) Regulations mitted on behalf of the appli- compensation which would be towards him. That bias was based 1989–1996 and EIA-related provi- cant when deciding that his paid for it on an objective basis and not a sub- sions in the Local Government injuries were minor. Where ● The respondent ought to refuse jective one. The applicant also con- (Planning and Development) Acts, there was respectable medical to authorise proceedings in a tended that there was undue delay 1963–1998 as well as certain other opinion from the applicant case where there had been a on the part of the respondents. He Acts. The amendments: which indicated that his complete recovery within a argued that it was an essential pre- ● Restate provisions relating to injuries were not of a minor matter of weeks with no med- requisite for a valid disciplinary the information to be contained character, the Minister would ically explicable adverse procedure that it was left to the aca- in an environmental impact not be entitled to form a view sequelae demic co-ordinator to decide if

JANUARY/FEBRUARY 1999 LAW SOCIETY GAZETTE 39 BRIEFING

there had been a breach of the rules McAuley v Chief Superintendent reports and statements in the there was no evidence of compli- following the conduct of the cor- Keating (Supreme Court), 21 course of litigation (SI nos 348 and ance with the Criminal Justice Act, rect disciplinary procedures. In this January 1998 471 of 1997). The present rules: 1984 (Treatment of Persons in case, the applicant alleged that the ● Apply to all proceedings which Custody in Garda Stations) first-named respondent’s statement were instituted on or after 1 Regulations 1987. The case came would lead to a reasonable appre- September 1997 before the High Court by way of HEALTH SERVICES hension on the part of the applicant ● Require that, from that date, a case stated from Judge Windle on that he had already decided the party to such proceedings may the question whether he was cor- case, that the breach of discipline Expanded remit for VHI only rely on a statement or rect in holding that the evidence of had been made out, and that all that Proposed new legislation seeks to report during the course of the compliance with the regulations remained to be dealt with was the permit the VHI to act as an agent trial of an action where that by the sergeant was hearsay. In penalty. The applicant further con- for an international healthcare statement or report has been answering the question posed in tended that the first-named respon- plan which would be applicable to disclosed in accordance with the negative, it was held that: dent had to make a finding as to persons resident outside the State. the rules. ● The 1987 regulations required whether there was a breach of dis- Voluntary Health Insurance that the accused be informed of cipline isolated from the identifica- (Amendment) Bill, 1998 Rules of the Superior Courts (No his rights, whether he under- tion of any particular student as 6) (Disclosure of Reports and stood them or not, and the being responsible for it. In dismiss- Statements) 1998 (SI No 391 of essential proof was that he was ing the appeal, it was held that: 1998) so informed. All that was PRACTICE AND ● When considering the period of required was that the relevant PROCEDURE delay, the court was restricted to Rules for appeals from information be given to the the period since the court previ- Hepatitis C Tribunal accused and the relevant notice ously decided on the matter Rules for review of award New rules came into force on 23 handed to him ● To hold that the first-named of public contracts October 1998, prescribing proce- ● The only evidence required respondent’s conduct would New rules came into force on 19 dures in relation to appeals against was that the words were spoken create the impression that he October 1998, prescribing proce- decisions and awards of the and the notice handed over. The had prejudged the case would dures in relation to the review by Hepatitis C Compensation garda heard the words spoken amount to a monstrous charade the High Court of the award or of Tribunal under the Hepatitis C in the accused’s presence and and no reasonable person could a decision to award a public ser- Compensation Tribunal Act, 1997. saw the notice being handed take that reading from it vices, public supply, public utili- Rules of the Superior Courts (No over. He was entitled to give ● One could not glean any ele- ties or public works contract. 7) (Hepatitis C Compensation the evidence of these facts. In ment of bias from the utter- Rules of the Superior Courts (No Tribunal) 1998 (SI No 392 of relation to hearsay, there was ances made by the first-named 4) (Review of the Award of Public 1998) no general rule of evidence to respondent. They were merely Contracts) 1998 (SI No 374 of the effect that a witness could formalistic statements of a con- 1998) Hearsay rules permit not testify as to the words spo- clusion evidence to the effect ken by a person not produced ● No reasonable person could Rules for Oireachtas that words were spoken as a witness. Subject to many infer that the first-named witnesses ● The general rule against exceptions, the general rule respondent was summoning New rules came into force on 20 hearsay was not infringed was that evidence of the speak- over 30 witnesses in order to October 1998, prescribing proce- where a witness gave evidence ing of words was inadmissible enable him to form some view dures in relation to applications that words were spoken, where to prove the truth of the facts as to the penalty he should and appeals to the High Court the uttering of the words them- asserted by the words. The impose on the applicant under the Committees of the selves was a relevant fact, and uttering of words might itself ● The whole course of conduct Houses of the Oireachtas not the truth or otherwise of the be a relevant fact, apart from on the part of the first-named (Compellability Privileges and facts asserted by those words. the truth or falsity of anything respondent showed that he was Immunities of Witnesses) Act, asserted by the words spoken. taking the whole matter very 1997. The respondent was arrested and To prove, by the evidence of a seriously and that he had not Rules of the Superior Courts (No charged with offences before the witness who heard the words, engaged in any form of pre- 5) (Committees of the Houses of District Court. The applicant that they were spoken was judgment the Oireachtas (Compellability member of the Garda Síochána direct evidence, and did not ● With regard to the question of Privileges and Immunities of gave evidence that he heard a encroach on the general rule delay, the time-scale involved Witnesses) Act, 1997) 1998 (SI sergeant, who was not present in against hearsay in this case was consonant with No 381 of 1998) court, tell the respondent why he ● There was sufficient evidence doing complete justice to the had been arrested and that he had a before the court that the applicant Changes to disclosure right to call a solicitor or other per- respondent had been given the ● In making a finding of breach of reports and statements son, and that he saw a notice of necessary information pursuant of discipline, the first-named rules rights for persons in custody being to the regulations. respondent would normally New rules deemed to have come handed over by the sergeant to the have made also a prima facie into force on 1 September 1997 respondent. The respondent sub- Director of Public Prosecutions v finding of which student was replace the rules introduced last mitted that this evidence was inad- O’Kelly (McCracken J), 10 responsible. year concerning the disclosure of missible as it was hearsay, and that February 1998

40 LAW SOCIETY GAZETTE JANUARY/FEBRUARY 1999 BRIEFINGBRIEFING

Claim of legal Interrogatories documents identified in discov- with the regulations increases from professional privilege considered ery documents would normally £75 to £100 and the storage charge not upheld The plaintiff applied to the court be allowed unless there were per day increases from £25 to £30. ● A claim of legal professional for leave to deliver interrogatories special reasons why, in the Road Traffic (Removal, Storage privilege depended on whether for the examination of the first- interests of justice, an order and Disposal of Vehicles) the dominant purpose for which named defendant. The first- should not be made (Amendment) Regulations 1998 the documents in question came named defendant opposed this ● Interrogatories which sought (SI No 358 of 1998) into being was in apprehension application on the grounds that admissions about the facts sur- or anticipation of litigation. the interrogatories sought were rounding documents identified prolix, oppressive, vague and in discovery affidavits had to SPORT The plaintiff, an infant, suffered imprecise and had not been relate to the issues raised in the serious injuries in the process of shown to be essential in the inter- pleadings and could not be being born and a claim for negli- ests of justice. used as a means to prove the Statutory Sports Council gence and damages was brought In allowing the delivery of cer- interrogating party’s case to be established against the defendants. The usual tain interrogatories, it was held ● Interrogatories which sought A Bill has been presented which documents were discovered fol- that: information had to relate to the aims to establish, on a statutory lowing an order for discovery, but ● No party had the right to have issues raised in the pleadings footing, a body to be known as the privilege was claimed by the sec- interrogatories delivered and and not to the evidence Irish Sports Council with the aims ond-named defendant in respect of answered but had to satisfy the adduced in the case of promoting and encouraging the statements made by three nurses court either that a special exi- ● Questions as to opinions, the development of sport in the State. on duty at the relevant time, on the gency or some necessity exist- meaning or effect of documents Irish Sports Council Bill, 1998 basis that they were made solely ed which warranted the deliv- or as to statements or conduct for the purpose of or in contempla- ery and answering of interroga- should not be permitted tion of litigation. The second- tories. Giving leave to deliver ● An order to deliver interrogato- TELECOMMUNICATIONS named defendant claimed that the interrogatories had to be ries would be refused if a fair statements were not ordinary med- regarded as an exception in any hearing of the issues between ical or treatment records as they case to be heard on oral evi- the parties would be prejudiced CIÉ to have telecommun- were not made in the ordinary dence and had to be justified by by it, even if the costs of the ications remit course of treatment. The High the party seeking to deliver proceedings could be reduced A new order permits CIÉ to Court disallowed the claim of legal interrogatories by making the order expand its field of activities to professional privilege and the sec- ● Once the party seeking to deliv- ● The fact that the current case include owning and operating ond-named defendant appealed to er the interrogatories satisfied was a Competition Act case did telecommunications equipment the Supreme Court. In dismissing the court that such delivery not constitute a special exi- (including fibre optic cable and the appeal, it was held that: would serve a clear litigious gency warranting the delivery network equipment) and entering ● The issue was whether the sec- purpose by saving costs or pro- of interrogatories into agreements with other bodies ond-named defendant’s domi- moting the fair and efficient ● The questions which the court in this regard. nant reason or motive for conduct of the action in ques- proposed to allow were all Córas Iompair Éireann obtaining the statements was the tion, then the court should be questions which met the crite- (Additional Functions) Order anticipation or contemplation of prepared to allow the delivery ria set out above. 1998 (SI No 76 of 1998) litigation. If not, privilege did of the interrogatories unless it not apply to the statements was satisfied that the said deliv- Woodfab Limited v Coillte ● It was likely to aid the course of ery would work an injustice Teoranta (Shanley J), 19 TRANSPORT the trial if the statements were upon the party interrogated December 1997 made available to the plaintiff’s ● The court had to look at each advisors. They were straight- and every interrogatory for the Carriage of Dangerous forward accounts of events and purposes of determining Goods by Road Bill, 1998 ROAD TRAFFIC conversations and did not con- whether it was necessary to be This Bill has been amended in the tain any element that would answered for the purpose of Select Committee on Public attract an entitlement to legal disposing fairly of the case or Increased tow-away Enterprise and Transport. G professional privilege. for saving costs charges ● Interrogatories which sought With effect from 29 September The ILT digest is reproduced by Gallagher v Stanley (Supreme admissions as to the existence 1998, the charge for release of a kind permission of the Irish Law Court), 17 December 1997 of documents and signatures to vehicle towed away in accordance Times.

FEATURES INCLUDE: LAW SOCIETY ROOMS Revised layout with two additional rooms Meet Improved ventilation and lighting at at the Four Courts Telephone extension in every room FOR BOOKINGS CONTACT Conference facility telephones the Mary Bissett or Paddy Caulfield Room service catering facility Four Courtat the Four Courts 873 1806 Friary Café Courts JANUARY/FEBRUARY 1999 LAW SOCIETY GAZETTE 41 BRIEFING

Eurlegal

News from the EU and International Affairs Committee Edited by TP Kennedy, Legal Education Co-ordinator, Law Society of Ireland Free movement of persons: some recent developments

his article reviews a number there is a renewed commitment to behave as if ‘Community’ In relation to residence, it is Tof developments in the field lifting internal frontier controls. Schengen measures continue to be proposed to modify and update of free movement of persons over Ireland is, for as long as the based on Title VI, even where it is Directive 68/360. Proposed the past year or so. It covers: Common Travel Area remains, decided to base them on EC treaty amendments make it clear, in line ● Progress towards the imple- covered by a new protocol allow- provisions. with ECJ caselaw, that EU nation- mentation of the Amsterdam ing it, and the UK, to remain out- The Amsterdam treaty will enter als have the right to go to another treaty side the new regime. Ireland has, into force only when it has been Member State to seek work or to ● New legislative proposals in however, by declaration, made it duly ratified by all the Member undertake vocational training and the field of free movement of clear that it intends to exercise its States. With ratification delays by that EU nationals seeking a job workers right to take part in the adoption Belgium, France and Portugal, it is have an automatic right of resi- ● Recent caselaw on the identity of common measures to the maxi- currently envisaged that this will dence for six months and can stay of the beneficiaries of free mum extent compatible with the be in the first half of 1999. In the for longer if they can prove they movement Common Travel Area. Denmark meantime, work is proceeding to are actively seeking employment ● Developments in relation to the has also decided to remain outside ensure that all is ready to roll as and have a reasonable chance of application of the principle of the new free movement regime. soon as the treaty takes effect. finding a job. It is also proposed non-discrimination The work involved in the to improve the residence rights of ● Recent caselaw on services. changeover is considerable. The 2. The free movement of persons with a series of fixed- December 1998 Vienna European workers: new legislative term or short-term contracts who The survey below is not exhaus- Council has endorsed the action proposals have worked for 12 months in an tive. In particular, it does not plan on establishing an area of In July 1998, the Commission 18-month period and to simplify cover developments in relation to freedom, security and justice: adopted three legislative propos- administrative procedures for the European space of profession- much work has yet to be done on als aimed at updating and clarify- issuing residence permits. al mobility, including the the ‘flanking measures’. ing citizens’ rights to move In relation to treatment, it is Lawyers’ establishment directive, The Amsterdam treaty also around the EU to take up work. proposed to modify and update or progress in relation to supple- allows for the ‘Unionisation’ of The proposals are intended partly Regulation 1612/68. It is intended mentary pensions. the Schengen system. By integrat- to update the existing legislation to reinforce and clarify the princi- ing the Schengen acquis into the to reflect the caselaw of the ECJ ple of equal treatment, in line with 1. The treaty framework: Union system, the Member States and partly to make improvements ECJ caselaw which makes it clear implementing Amsterdam have also agreed to bring into the in line with recommendations in that direct and indirect discrimi- It is useful, first, to recall the European Union a system of the 1997 Report of the High Level nation is prohibited across the structural changes wrought by the agreed rules on free movement Panel (the ‘Veil report’). Their board (see 4 below). It will be Amsterdam treaty. which has, up to now, existed out- objective is not only to promote made clear that facts and events of Existing provisions on the free side the legal framework of the the free movement of workers as a professional/vocational relevance movement of persons and flank- European Union. Again, Ireland basic freedom (seen in the context arising in a Member State other ing measures are to be transferred and the UK have opted to stay out- of Union citizenship) but also to than that of employment – such as from the Third Pillar to the First, side, though Ireland has said that it use worker mobility as an instru- previous experience and military Community, Pillar and thus from will work in developing the ment in the promotion of employ- service – must be taken into a system of strict inter-govern- Schengen acquis where it can. ment. Indeed, this bifurcated account in the Member State of mental decision-making to a mod- Denmark has signed up to objective has been central to employment: this again reflects ified version of EC-based deci- Schengen, but is subject to special understanding the free movement ECJ caselaw. It is proposed to sion-making. At the same time, arrangements that will allow it to provisions from the beginning. improve the position of family

42 LAW SOCIETY GAZETTE JANUARY/FEBRUARY 1999 BRIEFINGBRIEFING

members by removing the age Although this judgment is critical reside in Austria at the material 4. The principle of and dependency criteria for for the free-mover whose status is time. Clean Car then brought court non-discrimination descendants and ascendants. not established, specific cate- proceedings claiming that the per- The court has, over the past few Family members should have the gories of free-mover (such as son whom it had appointed as man- years, developed the principle of right to take up self-employed workers, self-employed persons ager was entitled, as a worker, to non-discrimination on grounds of activity. It is also proposed to pro- and service-providers/receivers) enjoy the right to freedom of nationality, whether contained in tect the position of third-country enjoy specific wider rights of movement under article 48. article 6 of the EC treaty, or in nationals married to a non-discrimination on grounds of The court held that the rule of ‘special rules’ such as article Community worker and divorced nationality, so that article 6 of the equal treatment in the context of 48(2) (‘discrimination based on after three years’ residence. EC treaty as lex generalis does freedom of movement for workers nationality between workers of It is also proposed to introduce not apply. could be relied on by an employer the Member States as regards a clause outlawing discrimination In the Clean Car judgment, in order to employ in the Member employment, remuneration and on the grounds of race, religion, delivered in May 1998 (Case State of its establishment workers other conditions of work and sex, age, disability or sexual ori- 350/96), the court affirmed that the who were nationals of other employment’). The principle cov- entation. free movement of workers’ provi- Member States. The court consid- ers not only explicit discrimina- sions could be invoked not only by ered that this result was not pre- tion on grounds of nationality, but 3. The beneficiaries of workers themselves but also by cluded by the wording of article also covert discrimination which, free movement: the Sala their employers. 48 of the EC treaty and that it pre- by the application of other and the Clean Car judg- Clean Car – an Austrian comp- vented rules applying to employ- grounds for distinction (in partic- ments any established in Vienna – had ers from being used to circumvent ular residence), leads in fact to the The May 1998 Sala judgment sought to register in order to carry the free movement regime. The same result. The requirement of (Case 85/96) has clarified the out trade. Its application was reject- conclusion was supported by arti- complete equality – meaning that extent to which an individual can ed because, contrary to the provi- cle 2 of Regulation 1612/68 and not only a substantive right but claim rights of free movement sions of the Austrian trade code, by the court’s caselaw, in particu- also the conditions for enjoying it merely by virtue of his or her sta- the manager appointed did not lar, the 1995 Bosman case. must be the same – applies to tus as a Union citizen, without areas outside the workplace, needing to show membership of a where the right can be seen as a functional category (worker, self- Conferences and seminars corollary to free movement. employed person and so on). AIJA (International Date: 26 April Private law. In a series of Association of Young Lawyers) Venue: London, England cases beginning in late 1996, the It was unclear in that case Contact: Gerard Coll whether the individual seeking (tel: 01 6761924) Topic: The new Merger rules court has effectively outlawed non-discriminatory treatment for one year on and other recent any national requirement that rights granted to host nationals Topic: Tourism law developments Community plaintiffs who bring on the basis of residence was or Date: 24-27 June Date: 18 May an action before the courts of a Venue: Capri, Italy Venue: London, England was not a worker, though it was Member State other than their accepted that she was lawfully Hawksmere Topic: Public procurement policy Member State of origin must resident. The court established Contact: (Tel: 0044 171 7304293) in the Community lodge a sum as security for legal that the right to equal treatment Date: 16 June costs (the cautio judicatum solvi). under article 6 of the EC treaty Topic: Structuring legal services to Venue: London, England The principle of non-discrimina- serve globalised business tion thus extends to rules of civil attached to the individual by Date: 25-26 February Topic: Broadcasting, pay-per-view virtue of her Union citizenship Venue: London, England and sports competition law procedure and access to justice, status coupled with lawful resi- Date: 6 July so that, where necessary, dence. As a result of this judg- Law Society of Scotland Venue: London, England Community law takes precedence ment, unequal treatment on Contact: (Tel: 0044 141 5531930) over national rules in the field of Translex private law. grounds of nationality coming Topic: 50th anniversary conference Contact: Franz Heidinger within the scope rationae materi- Date: 8-10 July (tel: 0043 15268478) Criminal law. The principle ae of Community law can be extends to the application of the challenged by all legally-resident Solicitors’ European Group Topic: Introduction to the French criminal law as well. In Union citizens coming within the Contact: (Tel: 0044 1905 724734) legal system September 1998, the Commission Date: 12-16 April issued a reasoned opinion under scope rationae personae of the Topic: Litigation in Luxembourg Venue: Paris, France Union citizenship provisions. article 169 of the EC treaty to

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JANUARY/FEBRUARY 1999 LAW SOCIETY GAZETTE 43 BRIEFING

Italy in relation to a legal provi- idence permit can only have 5. Freedom to had been authorised in advance. sion that an offender whose car is declaratory and probative, and not provide services Such prior authorisation was not registered outside Italy must pay a constitutive, force for the purpos- On 28 April 1998, the court deliv- required for treatment in minimum fine to the police officer es of recognition of the right of ered two important judgments in Luxembourg and the court held, involved without the chance of residence. relation to services. on the basis of long-established appeal, or a sum by way of securi- Frontier workers. There have In its Safir judgment (Case caselaw, that this constituted a ty of one-half of the maximum also been a number of non-dis- 118/96), the court considered the barrier to provide services. penalty. A driver of an Italian-reg- crimination cases involving fron- Community law implications of The court accepted that the risk istered car (who may, of course, tier workers – individuals resident Swedish tax legislation which, of seriously undermining the not be Italian) is able to pay the in one Member State who com- despite the aim of maintaining financial balance of the social minimum fine at a police station mute to work in another. competitive neutrality between security system might in principle or by bank transfer, or appeal In its September 1998 judg- savers holding Swedish life insur- constitute an overriding reason in within 60 days. The Commission ment in Commission v France ance policies and savers holding the general interest capable of jus- considers that this different treat- (Case 35/97), French rules on sup- foreign life insurance policies, tifying such a barrier. However, ment constitutes unjustified and plementary pensions applied to established different tax regimes there was no such risk in this disproportionate discrimination. workers resident in France but for capital life assurance policies, case. Residence. The court has also excluded frontier workers resident depending on whether they were The court also held that the confirmed that the principle of in Belgium who had worked in taken out in Sweden or elsewhere. barrier could not be justified on non-discrimination applies to France. Although this was not The legislation contained a num- public health grounds. In the light penalties for failure to produce a overt discrimination on grounds ber of elements liable to dissuade of the mutual recognition regime valid identity document. In of nationality, it was indirectly individuals from taking out capi- applying to members of the med- Commission v Germany (Case discriminatory since the residence tal life insurance from companies ical professions, Luxembourg 24/97), it ruled that by treating condition could more easily be not established in Sweden and could not argue that the rules nationals of other Member States fulfilled by French workers (most liable to dissuade companies from were necessary to guarantee the ‘disproportionately differently’ as of whom resided in France) than offering their services on the quality of medical services pro- regards the degree of fault and by workers from other Member Swedish market. vided in other Member States. scale of fines from German States. The Swedish Government had The court recognised that the nationals when they committed a The May 1998 judgment in argued that the need to fill the fis- objective of maintaining a bal- comparable infringement of the Gilly (Case 336/96) concerned the cal vacuum arising from the non- anced medical and hospital ser- obligation to hold a valid identity difficult question of taxation of taxation of savings in the form of vice open to all could fall within document, Germany had failed to frontier workers and shows the capital life assurance policies the public health derogation even fulfil its Community law obliga- limits of the non-discrimination taken out with companies not though it was intrinsically linked tions. principle. Workers who live in established in Sweden justified to the method of financing the The court has characterised as one Member State and work in these restrictions on freedom to social security system. Member discriminatory the case where the another may suffer unfavourable provide services. The court reject- States could restrict the freedom obtaining of a given benefit – in tax treatment resulting directly ed this, arguing that it was possi- to provide medical and hospital casu a child-raising allowance – is from different levels of taxation in ble to conceive of systems which services in so far as the mainte- refused or delayed for a ‘free- the two Member States, in the were more transparent and capa- nance of a treatment facility or mover’ entitled to reside in the absence of any Community har- ble of filling this fiscal vacuum, medical service on national terri- host Member State on grounds of monisation of scales of direct tax- while being less restrictive of the tory was essential for the public non-possession of a formal resi- ation. This factor, and the desire freedom to provide services. health and even the survival of the dence permit where host nationals not to encroach on Member State In the Kroll judgment (Case population. However, it had not are entitled to the benefit simply sovereignty in the field of taxa- 158/96), the court considered a been established that the rules in on the grounds of permanent or tion, means that such Luxembourg provision that the issue were necessary to these ordinary residence (the May 1998 unfavourable results as arise from reimbursement of medical costs ends. G Sala judgment). The court repeat- the application of double-taxation in respect of medical services ed, referring to the 1975 Royer arrangements will not be regarded provided outside Luxembourg John Handoll is a partner with judgment (Case 48/75), that a res- as prohibited discrimination. could only be made where this solicitors William Fry.

International network looking for its Irish member European Economic Interest corporate law. Most of the partners quality work for local and foreign open recruitment policy in order to AGroup (EEIG), registered in of these firms are in their forties corporations, and run by a perma- substantially increase the number Luxembourg, comprising a num- and are experienced lawyers. They nent officer with a small staff of countries represented in the net- ber of European law firms, would are very keen to work on adding a actively engaged in marketing and work. If any Irish firm is interested like to invite an Irish firm interest- new international dimension to organising the network. Each firm or would like more information, it ed in international work to join its their current activities by creating a participating in the network is should contact Marc Jobert (tele- network. The member firms are truly multinational structure. They guaranteed a degree of exclusivity phone: 0033 1 45252515; fax: small to medium law firms with a feel that there is a need for a net- in its jurisdiction. The founding 0033 1 45254781; e-mail: general practice in business and work of medium-sized firms doing members have decided to have an [email protected]). G

44 LAW SOCIETY GAZETTE JANUARY/FEBRUARY 1999 BRIEFINGBRIEFING

RECENT DEVELOPMENTS IN EUROPEAN LAW The proposed directive provides for a treaty articles on grounds of public settes and services involving the pro- COMPETITION ‘cooling off period’ before a contact security. The court held that this duction, distribution and projection On 9 November 1998, the UK of this nature would be concluded by exception was to be narrowly con- of films for cinemas and television Competition Act 1998 received the a consumer – the consumer has a strued. It pointed out that private organisations. The ECJ was asked royal assent. Broadly speaking, this right to withdraw from the contract security undertakings had no power whether the distinctive character of Act proposes to do for English com- without penalty and without giving of constraint. They merely con- the mark and its reputation was to petition law what our own any reason for a period of 14 days (in tributed to the maintenance of pub- be taken into account in determining Competition Act, 1991 did for Irish the case of mortgages, life insurance lic security, as any individual citizen whether the similarity between the competition law. It is based on arti- or pensions 30 days). It proposes lim- should be expected to do. A clear dis- goods and services gave rise to the cles 85 and 86 of the EC treaty and itations on cold-calling and for a tinction was drawn between the likelihood of confusion under article introduces concepts of EC competi- complaints and redress procedure for public security force and private 4(1)(b) of the First trade mark direc- tion law into domestic English law. the settlement of consumer disputes. security firms. The ECJ held that the tive and thus MGM’s application to Investigative and regulatory powers defences of public policy, public secu- register could be refused. The court are given to the Director General of EMPLOYMENT rity or public health operated to held that it must be taken into Fair Trading. He is given wide powers refuse access to persons whose access account. It said that there may be a to impose fines on persons in contra- Compulsory information and or residence would constitute a dan- likelihood of confusion even where vention of the Act. The maximum consultation for employees ger on one of these grounds. They the public perception is that the amount of any fine is 10% of The Commission has proposed a could not be used to justify a gener- goods or services have different turnover. A right of appeal is given directive establishing a framework al exclusion of the type in the instant places of production but not where against his decisions to a newly- for informing and consulting case. Clearly, both the residence and the public do not believe the goods established body, the Competition employees. The proposal applies to incorporation requirements were or services come from the same Commission. There is a further right all organisations with more than 50 contrary to the treaty. undertaking or from economically- of appeal on a point of law or con- employees. It requires such organisa- linked undertakings. cerning the level of a penalty tions to inform and consult their INTELLECTUAL employees in good time about issues imposed to the Court of Appeal. PROPERTY LITIGATION Chapter 1 of the Act contains its pro- directly affecting work organisation visions on restrictive agreements. and their employment contracts. Electronic commerce Brussels convention Section 2 mirrors article 85. Certain There is to be an attempt to seek The Commission has recently pro- Réunion Européenne Sa & Ors v agreements are excluded from the prior agreement when the decision is posed a directive setting out a legal Spliethoff’s Bevrachtingskantoor BV Act and the Director is given the likely to lead to substantial changes framework for electronic commerce and the Master of the vessel power to grant exemptions in indi- concerning work organisation and within the EU. It is proposed the Alblasgracht V002 (Case 51/97), judg- vidual cases. Block exemptions can contractual relations. It provides that directive would apply to all informa- ment of 27 October 1998. The case be introduced by way of statutory if such decisions are taken in serious tion services provided electronically, concerned the application of article instrument. Section 39 sets out a de breach of the information and con- whether for a charge or for free. The 5(3) in a case involving the trans- minimis provision – the categories of sultation obligation, they will have directive would extend the treaty portation of goods by sea. The Dutch agreement falling within this provi- no legal effect on contractual rela- rules on establishment and services company SA carried a consignment sion are to be set out in a statutory tions until the situation has been rec- to such information services. The of pears from Australia to Rotterdam instrument. Chapter 2 of the Act pro- tified or adequate redress has been place of establishment is defined as aboard its vessel under a bill of lad- hibits abuse of a dominant position. established. the place where an operator actually ing. They were unloaded there and Section 18 mirrors article 86 of the pursues an economic activity, irre- transported by road to France. On treaty. Unlike the treaty, the Act FREE MOVEMENT spective of where the web sites or arrival, it was discovered that the establishes procedures for the notifi- servers are located. The operator pears were damaged. The ECJ was cation of conduct that may amount Persons would be subject to supervision in asked to identify the place of the to abuse of a dominant position. The Commission v Spain (Case 114/97), the Member State where they were harmful event. The court referred to director may give guidance on the judgment of 19 October 1998. The established. The proposal also calls its earlier decision where it had held conduct or reach a formal decision Commission challenged Spanish leg- on Member States to remove any that the place where a harmful event on the conduct. islation making the grant to compa- national legislation prohibiting the occurs confers jurisdiction both on nies of authorisation to carry on pri- use of electronic media for conclud- the place where the causal event CONSUMER vate security activities subject to the ing contracts. These provisions com- takes place and the jurisdiction requirement of being incorporated plement the recent proposal for a where damage is actually suffered. In PROTECTION in Spain with Spanish resident direc- directive on electronic signatures. this case the place of the causal Financial services tors and managers and the further Service providers who act purely as event was difficult and might even In 1997, a directive was adopted to requirement that security staff be of conduits for information would be be impossible to determine. Thus, protect consumers who conclude dis- Spanish nationality. The ECJ held exempted from liability. the consignee of the goods should tance contracts (contracts concluded that these laws infringed articles 48, bring the carrier before the court for over the telephone or the Internet). 52 and 69 of the treaty. Spain Trade Marks the place where the damage The directive did not apply to finan- defended the action on the basis Canon Kabushiki Kaisha v Metro- occurred. This could not be either the cial services. The Commission has that security activities came within Goldwyn-Mayer Inc (Case 39/97), place of final delivery, which could now proposed a new directive to article 48(4). The ECJ pointed out judgment of 29 September 1998. be changed in mid-voyage, or the apply to investment services, insur- that the activities were private and CKK has registered the trade mark place where the damage was ascer- ance and reinsurance operations, could not be considered as forming ‘Canon’ in respect of cameras, pro- tained. The place where damage banking services, operations relating part of the Spanish public service. jectors and other recording devices. arose in a transport operation of this to pension funds and services relat- Spain also put forward the defence MGM applied to register ‘Canon’ as a nature could only be the place where ing to dealings in futures or options. that it could derogate from the trade mark in respect of video cas- the carrier was to deliver the goods.

JANUARY/FEBRUARY 1999 LAW SOCIETY GAZETTE 45 PEOPLE AND PLACES Law firms go for GOAL group of solicitors have got ilar situations. Mayo law firm scoops Atogether to raise money for Law Society President Patrick third world charity, GOAL. The O’Connor has endorsed the event top quality award aim is to raise £20,000 for a shel- and urged as many members as pos- ter for street children in Calcutta. sible to put on their running shoes. A portion of the money raised will ‘The legal profession in Ireland has also go to help homeless people in a long and proud tradition of help- Dublin. ing those in less fortunate positions In order to raise this money, than themselves, whether it be they are organising a 10K spon- through pro bono work or involve- sored run/walk on Saturday 15 ment with their local communities’, May 1999. The route will bring he says. ‘I hope members will come participants from Blackhall Place out in force to support this initiative into the Phoenix Park and back which may go some way towards again. Afterwards, there will be a improving the lives of Calcutta’s post-event party and barbecue for children’. all participants and their support- The runners will also be raising ers. money for homeless people in ‘We need as many people as Dublin. ‘It is often easy to forget possible to take part if we are to that there are people living in dread- reach the target’, says organiser ful poverty on the streets of our own Eoin MacNeill of A&L country’, MacNeill points out. ‘We Law Society President Patrick O’Connor receives the Excellence Goodbody. Volunteers are actively felt it was important to support Ireland national award in the small service company category from being recruited now from within some of the excellent projects spon- broadcaster Cynthia Ni Mhurchu and Sean Conlon, Chief the profession and from families, sored by local charities as well’. Executive of Excellence Ireland friends and other colleagues, with Runners and walkers are urgent- clients and suppliers being target- ly required. The organisers are also The Mayo solicitors’ firm P O’Connor & Son has been awarded the Q-Mark ed for sponsorship. ‘We hope to looking for people to act as for customer service from Excellence Ireland and has also won the national have a fun day out in addition to recruiters within their own firms. award in the small service company category. The firm, home to Law raising the money’, he adds. Sponsorship cards, details of the Society President Patrick O’Connor, is one of only 15 law firms nationwide GOAL funds projects in event and a special training sched- to receive the Q-Mark. Calcutta which are organised ule for novice runners will be avail- To achieve the Q-Mark, a company must achieve a score of 75% or high- directly by local aid agencies. In able in due course. er in the Excellence Ireland assessment. O’Connor’s firm achieved a rating many cases, former street children For more information on partici- of 95% on its most recent audit and beat off competition from 57 con- who have themselves been helped pating or recruiting, contact Eoin tenders in the small service company category are recruited to help others in sim- MacNeill on 661 3311.

Law Society President Patrick O’Connor and Director General Ken Murphy recently visited Athlone to meet the Midlands Bar Association. Pictured at the meeting are (back row, l-r): Dermot Scanlon, Denis Shaw, Jack Duncan, Brian Murphy, Evan Dunne, John O’Carroll (bar association secretary), Derek McVeigh, Thomas Shaw, Sean McMullin; (front row, l-r): John Wallace, Sarah O’Reilly (Law Society CLE Executive), Aidan O’Carroll, Barra Flynn (bar association president), President Patrick O’Connor, Director General Ken Murphy and Crona Hughes

46 LAW SOCIETY GAZETTE JANUARY/FEBRUARY 1999 PEOPLE AND PLACES

The County and City of Limerick Bar Association recently hosted a function to honour the appointment of Judge Tom O’Donnell to the District Court Bench. Pictured at the function are (l-r) Maeve Callanan, president of the Chairman of the Younger Members Albert Power, Director of Education bar association, former Law Society President Patrick Glynn, outgoing bar Committee, Stuart Gilhooly, pre- at the Law Society’s Law School, association president Siobhan Fahy, Judge Tom O’Donnell and sents a cheque for £1,500 to the was recently awarded a PhD from Jean O’Donnell Chairman of the Solicitors’ University College Dublin. Benevolent Association, Thomas A Dr Power’s thesis was entitled The Menton. The money was raised law of easements, licences and through the committee’s annual covenants running with land in soccer blitz and quiz nights Ireland

Report on SYS Autumn Conference 1998

he Society of Young Solicitors fy the source of the stress, and to TIreland held their Autumn implement mechanisms to deal Conference in the Ardilaun House with the stress. Hotel, Salthill, Galway on 13-15 Thirdly, Patrick Groarke pre- November 1998. Over 250 young sented a paper on the new rules of solicitors attended. the superior courts dealing with Members to benefit from Equity Bank deal Three papers were delivered at Disclosure of reports and state- The Law Society has negotiated a range of benefits for members from the lecture session on Saturday ments: mutuality of disclosure. Equity Bank, including loans at a fixed rate of 2.87% (6.4% APR) to finance morning. Paul Lavery of McCann These rules were implemented in practising certificate fee, PII and single premium insurance. Pictured at the FitzGerald delivered the first paper, late 1998, and deal with pre-trial announcement of the exclusive package were Equity Bank’s Katrina Kelly and Donal Moore, Law Society President Patrick O’Connor and the Society’s on the Freedom of Information Act, disclosure. Mr Groarke discussed Director of Finance Cillian MacDomhnaill 1997. This covered the principal the types of reports and statements features of the Act, the type of which the parties are required to information to which the Act exchange, the time limits for doing applies, procedures governing the so, the procedures for service and right of access to information, the withdrawal of a report. The impli- fees chargeable in respect of such cations of failure to comply with access, the right to amend personal the rules and the rights of the par- information, and the right to obtain ties in such circumstances were also reasons for decisions of public bod- outlined, as well as the exceptions ies. Paul Lavery also commented on to the rules. the Office of the Information A checklist was provided for use Commissioner and the publications when dealing with cases to which which will be made available by the rules apply. that office. Post-lecture activities included The second paper was delivered go-karting and horse riding, while by Dr Abbie Lane, a consultant psy- the less active chose to lounge in chiatrist in the Dublin County some of the many watering holes in Stress Clinic at St John of God Galway city. Hospital, Dublin. The title of the We were delighted that the new Pictured at the Tormey & Co Annual Scholarship presentation were (back paper was highly relevant to all pre- President of the Law Society, Pat row, l-r): Karol Mannion, Athlone (third place), Aisling Campion, Athlone (second place), Paul McGrath TD, Clr Kieran Molloy; (front row, l-r): Barra J sent: Reducing stress in your work- O’Connor, could join us and our Flynn, Principal, Tormey & Co, William Penrose TD, Tadgh O’Shea (first ing day! Dr Lane indicated that the guests, Judge John F Buckley and prize), and Catherine Murphy, Tormey & Co key to reducing stress was to identi- Director General Ken Murphy.

JANUARY/FEBRUARY 1999 LAW SOCIETY GAZETTE 47 PEOPLE AND PLACES Taoiseach honours original republicans

aoiseach Bertie Ahern joined ‘They all chose to put principle Tthe descendants of Irish repub- before profit, and the general good licanism’s founding fathers to above their private gain’, he said. unveil a plaque honouring lawyers ‘Today, more than ever, in the after- who took part in the 1798 rising. math of the Good Friday agree- Descendants of United Irishmen ment, we are guided by the plural- Thomas Addis Emmet and ist, democratic and republican prin- Bagenal Harvey, who were both ciples of the United Irishmen. They lawyers, were among the guests at were a truly talented, if tragic, gen- the ceremony in the Round Hall of eration’. the Four Courts last December. The Taoiseach was joined at the The plaque commemorates ten ceremony by Law Society lawyers who sacrificed their lives, President Patrick O’Connor and a careers or both fighting for the number of other guests from the cause of an independent self-gov- legal profession, including Justice erning republic. Paying tribute to Hugh O’Flaherty, Attorney the men, who included Wolfe General David Byrne SC, Justice Tone, one of the rising’s key fig- Minister John O’Donoghue, ures, Ahern said the principles for The picture shows (from left): Law Society President Patrick O’Connor, Chairman of the Bar Council John which they fought and died were An Taoiseach Bertie Ahern and Justice Hugh O’Flaherty, with the plaque MacMenamin SC and Law Society still important today. in the background Director General Ken Murphy.

Outgoing Presidents’ Dinner at Blackhall Place

At the recent CLE seminar on planning law were (l-r) John Gore-Grimes, Gore & Grimes, Patrick Sweetman, Matheson Ormsby Prentice, Barbara (Above) Michael V O’Mahony (Law Society President 1993-94) shares a Joyce, CLE Co-ordinator, Tom O’Connor, A&L Goodbody, and Colm Price, joke with immediate Past President Laurence K Shields and President Keans Price Patrick O’Connor (centre) at the traditional dinner in honour of the outgoing president last December (Below) Three in a row: Frank Daly (President, 1996-97) with Laurence K Shields (President, 1997-98) and current President Patrick O’Connor

Pictured at the recent presentation of parchments to newly-qualified solici- tors were Patricia Keary and Aideen Dennehy, both from Castleknock in Dublin, and Regina O’Brien, Cork

48 LAW SOCIETY GAZETTE JANUARY/FEBRUARY 1999 PEOPLE AND PLACES

Retiring Sligo State Solicitor Thomas E Tighe receives a presen- tation from Judge Oliver The President of the Law Society, Patrick O’Connor, a Mayo man himself, recently hosted a lunch for Mayo-born McGuinness, marking his many solicitors who are living and working in Dublin years’ service

Arthur Cox treads the boards

The cast of the play present the proceeds of the performances to the Irish Cancer Society, with (inset) Ian Scott and Pat O’Brien in a scene from Reginald Rose’s classic drama

he Arthur Cox Dramatic Society staged its inaugural production Twelve angry men in the Presidents’ Hall at Blackhall Place last Law Society President Patrick T O’Connor pictured with Yuka November. The play was performed and produced by members of Fujita, who is the first Japanese staff and played to a capacity audience on two nights, raising £2,000 national to be presented with a for the Irish Cancer Society. parchment by the Law Society

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JANUARY/FEBRUARY 1999 LAW SOCIETY GAZETTE 49 BOOKS

Book reviews A casebook on equity and trusts in Ireland (second edition)

JCW Wylie Butterworths (1998), 26 Upper Ormond Quay, Dublin 7. ISBN: 1 85475 8802. Price: £50

his is the second edition of setting the topic in question in slowed in this century, particularly same judge (this time in the TProfessor Wylie’s casebook context and directing the reader to in the later decades. There are sur- Supreme Court) in Bank of Nova on equity and the law of trusts in further sources of reference. The prisingly few important authori- Scotia v Hogan (above) concern- Ireland. Thirteen years have cases themselves are presented in ties from the 1950s, 1960s and ing aspects of the leading English passed since the first edition full ‘without editing of any kind, 1970s. However, something of a authority of Barclays Bank v appeared and, in that time, there and unadorned by headnotes’. renaissance has occurred in the O’Brien [1994] 1 AC 180 (see have been many significant The individual cases are followed 1980s and, perhaps to an even p495 of the casebook). developments in the field. with light notes and cross-refer- greater extent, in the 1990s. Thus, However, at least for the Reflecting this, the second edition ences to other relevant authorities. the casebook includes many moment, one cannot say that is almost twice as long as its pre- As always, Professor Wylie’s important Supreme Court cases there is a fully independent Irish decessor and the casebook now guidance to the reader is reliable from the last two or three years, law of equity. Although, on one runs to more than 1,250 pages. and fully up-to-date. notably Lynch v Burke [1996] 1 view, this is a weakness of this The paperback volume is attrac- Noticeable developments from ILRM 114 (resulting trusts), Bank casebook (which includes no tively presented and, despite its the first edition include the sub- of Nova Scotia v Hogan [1997] 1 English authorities); on the other considerable length, is easy to stantial strengthening of the treat- ILRM 407 (undue influence), hand, it increases its potential handle and read. ment of injunctions (with eight O’Mahony v Horgan [1995] 2 IR contribution. Academic works When this casebook first came new cases being added), as well 411 (Mareva injunctions), Dublin (casebooks as well as textbooks) out in 1985, it was designed as increased coverage of the areas Corporation v Building and Allied do not merely record the law but (along with a companion of resulting trusts, undue influ- Trade Union [1996] 2 ILRM 547 help to shape it as well. Just as Casebook on Irish land law) to ence and tracing. In all, some 60 (constructive trusts), and Mackey Professor Wylie’s seminal text supplement Professor Wylie’s new cases are included (and a v Wilde [1998] 1 ILRM 449 (spe- on Irish land law has made a text on Irish land law (then in its handful of cases deleted). In addi- cific performance). major contribution to the devel- first edition). We now have the tion, the author has placed a A second general point which opment of the Irish law of prop- benefit of the third edition of Irish slightly greater emphasis on mate- emerges is that, for this reviewer erty, so too will the casebook land law (Butterworths, 1997), as rial from Northern Ireland at least, the Irish caselaw on equi- under discussion assist in the well as Hilary Delany’s recent (although cases from the Republic ty has not yet developed to the development of the law of equity text dealing exclusively with of Ireland and from the pre-inde- point that it can stand alone. The in Ireland. Equity and the law of trusts in the pendence Irish courts still com- student of equity or the practition- A greater awareness of the Republic of Ireland (Round Hall prise the vast bulk of the cases er facing a practical problem will wealth of Irish authorities, new Sweet and Maxwell, 1996) (and reproduced in the book). often need to look beyond the and old, can only lead to a Judge Ronan Keane’s earlier vol- When one surveys the body of Irish cases to the English authori- reduced dependence on English ume on Equity and the law of Irish case law on equity, as expert- ties which have influenced them. cases in our courts and to the fur- trusts in the Republic of Ireland ly assembled by Professor Wylie This is not to say that the Irish ther development of a distinctive (Butterworths, 1988)). In view of in this volume, one is struck by judiciary are not beginning to Irish jurisprudence. Professor the existence of these textbook two points. First, it is interesting assert their independence. One Wylie is to be congratulated on treatments of equity and trusts, that approximately half of the may note, for example, the rejec- this work of scholarship, which Professor Wylie does not attempt cases are more than 50 years old tion by Murphy J in O’Byrne v should find a market among both in his casebook to provide (and indeed the greater number of Davoren [1994] 3 IR 373 of the practitioners and students of detailed discussion of the cases these are more than 100 hundred decision of the House of Lords in equity. G which he presents. Instead, each years old). It appears that, after a McPhail v Doulton [1971] AC of the casebook’s 23 chapters flowering in the 19th century, the 424 (see p702 of the casebook) Dr John Mee is a lecturer in law begins with a paragraph or two development of equity in Ireland and the doubts expressed by the at University College Cork.

JANUARY/FEBRUARY 1999 LAW SOCIETY GAZETTE 51 BOOKS The High Court: a user’s guide

Kieron Wood Four Courts Press (1998), Fumbally Lane, Dublin 8. ISBN: 1-85182-307-7. Price: £25

he author has provided an user friendly than the rules. There practitioner or lay litigant in nav- comfort to those people entering Tentry-level book which will is a straightforward easy-to-use igating the legal diary. (for them) previously uncharted assist in our understanding of index of contents which will That the book is significantly waters. everyday practice and procedure enable the user to elicit required more than a book of lists is clear In his preface, Mr Wood says in the High Court. This work will and essential information speedi- from the large number of exam- that ‘this book does not pretend to be of assistance to solicitors, ly. There is also significant refer- ples of the rules as they are inter- be a comprehensively updated judges, barristers and lay liti- ence to caselaw. There is nothing preted in practice. Relevant cases version of the rules. It is intended gants. It will be of particular novel in marrying rules with are quoted in brief and succinct to be a practical guide to some of value to students and to those cases. By doing so the author fashion, something which the more common problems faced practitioners who only rarely holds the reader’s attention. appears to be the author’s trade- by practitioners’. Mr Wood has involve themselves in High Court In many ways this is a book of mark. succeeded admirably. His book litigation. lists. For example, the differences The chapters on injunctions will be a valuable source for stu- Mr Wood is to be commended between the jury list and the non- and enforcement of money judg- dents, practitioners and lay liti- for his excellent attempt to unrav- jury list, between the common law ments demystify many of the gants alike. It is well written. I el the intricacies of the superior list and the Master’s list, are short- headings which struck fear into believe it will become essential court rules. It is perhaps surpris- ly and succinctly explained. the student or newly-qualified reading for all students of law. ing that no previous attempt Although the lists of what may be practitioner in the past. Garnishee Practitioners would be well appears to have been made to do contained in the pleadings in cer- orders, fieri facias, Anton Pillar advised to keep a copy to hand this at introductory level. I concur tain causes of action may be obvi- orders, and Mareva injunctions alongside the Rules of the superi- with the view of Mr Justice ous to the specialist litigation need not instil the same fear and or courts themselves. G O’Flaherty, contained in the fore- practitioner, they will provide loathing as they may have done word, that the book, like the rules essential information and guide- previously. James McCourt is a partner in the from which it is derived, ‘will lines to the occasional visitor to The book endeavours to cover Dublin firm O’Mara Geraghty continue to be updated over the litigation. Indeed, there is a chap- every area of litigation practice in McCourt and chairman of years’. At entry level, the book is ter devoted to court lists. This a very general way. I have no the Law Society’s Litigation of necessity more accessible and chapter will assist the unwary doubt that it will provide much Committee.

The capital markets: Irish and international laws and regulations

Agnes Foy Round Hall Sweet & Maxwell (1998), Brehon House, 4 Upper Ormond Quay, Dublin 7. ISBN 1-899738-54-1. Price £98

gnes Foy’s work tackles the and futures and options exchanges, ers the Netting of Financial which is of significance in areas as Aimportant and exciting area regulators, professional advisers Contracts Act, 1995, while chap- diverse as insider trading and track- of the law and regulation relating and both institutional and retail ters six and seven deal with the er bonds. In addition, given the to capital markets. This area, investors. Chapter two on products 1995 Stock Exchange Act and the recent collapse of Barings Bank which has undergone significant available to investors in capital Investment Intermediaries Act. (remember Nick Leeson?), a fuller developments since the break- markets, deals with, inter alia, The book would have benefited discussion of the objectives of inter- down of the Bretton Woods bonds, equities, derivatives and from a name index identifying nal control systems and the types of Agreement in the 1970s, is charac- investment funds. important contributors to the field. internal controls which should be terised by exotic arrangements: Part II of the book comprises A separate section containing a implemented by financial institu- Swedish company Electrolux five chapters and deals with legis- glossary of technical terms would tions would have been welcome. issued a Eurobond in 1990, repay- lation pertaining to capital markets. also have been useful, although the These issues aside, however, ment of the principal being depen- Chapter three examines the Central author does extensively lay the Agnes Foy has produced a sub- dent upon whether an earthquake Bank Acts, 1942-1997. This chap- groundwork for the non-specialist stantive and readable contribution occurred in Japan! ter considers, among other things, reader in part I of the book. This to a highly-complex and rapidly- The main text of Capital mar- the licensing and investigative approach, however, has led to some changing area. She is to be con- kets runs to 575 pages and is divid- powers of the Central Bank. repetition, the discussion of UCITS gratulated both on her efforts and ed into two parts and seven chap- Chapter four on collective invest- at paragraphs 2-68 and 2-69 in part her achievement. G ters. Part I, which runs to 202 ment schemes deals with the law I and paragraphs 4-05 and 4-06 in pages, is subdivided into two and regulations relating to UCITS part II being a case in point. Niall O’Hanlon BA (Hons) (Acct & chapters which deal with the play- (Undertakings for Collective Further, although the author refers Fin), LLM (Comm Law), ACA, AITI ers on the capital markets and the Investments in Transferable to the Black-Scholes Option is a practising barrister specialis- products which are offered on Securities), unit trusts, investment Pricing Model, this reviewer could ing in general commercial and tax- such markets. Chapter one consid- companies and investment limited find no reference in the index to the ation law and is a consultant to the ers, inter alia, stock exchanges partnerships. Chapter five consid- Efficient Markets Hypothesis, Law Society’s Law School.

52 LAW SOCIETY GAZETTE JANUARY/FEBRUARY 1999 BOOKS Military law in Ireland

Gerard Humphreys and Ciaran Craven Roundhall Sweet & Maxwell (1997), Brehon House, 4 Upper Ormond Quay, Dublin 7. ISBN: 1-899738-33-9. Price: £78

t was inevitable, given the bur- – Scariff v Taylor ([1996] 1 IR book will be well visited by many armed forces. Compensation Igeoning public interest in Irish 242) and Dunford and O’Neill v personnel. schemes available to military per- military affairs as a result of the Minister for Defence and others, For those practitioners sonnel in the UK, Norway and high profile attaching to army unreported, High Court, Laffoy J, involved in cases against the Canada are summarised. deafness cases, that a book deal- 15 December 1995. Minister for Defence, the authors The operation of health and ing with military law in Ireland The authors have wisely seen have provided a very useful guide safety legislation in military cir- would sooner or later be pub- fit to devote an entire chapter to which will help to decipher mili- cumstances is examined. The lished. The authors in producing service in the Defence Forces. tary jargon which one inevitably authors highlight the particular such a magnum opus have done Promotions procedures in respect encounters on discovery of army difficulties for practitioners an invaluable favour for practi- of all ranks in the Defence Forces documents. One can get a feeling caused as a result of privilege tioners and the public alike. have in recent times undergone for the military/civilian relation- attaching to the proceedings of Mrs Justice Susan Denham, in major changes. I have no doubt ship in law by studying the judg- military courts of enquiry and to her foreword to the book, that this particular section of the ments which appear in the form of UN-sourced documents. describes the publication as ‘an an appendix. Subject matters Other topics covered include important part of the growing JUST PUBLISHED referred to include the much-pub- grievances, representation and library of Irish law’. She compli- licised murder trial of Private interpersonal relationships, inter- ments the authors in providing a The role of the expert witness Michael McAleavey [1 CM/84], national humanitarian law and Edited by Bart Daly guide for legal practitioners in a Inns Quay (1998), rights of privacy and sexual activ- service overseas by the Defence complex area of law. Richmond Business Campus, ity in a private home (Re C [3 Forces. The authors set out to provide North Brunswick Street, CM/94]), and more routine mili- All in all, this is a well-struc- Dublin 7. a practical guide to the tary matters such as whether a tured, comprehensive and timely ISBN: 1-902354-01-X. Price: £24 military/civilian relationship in request by a superior officer book. Military law has been law in Ireland. The Family Law (Divorce) amounts to an order (Re Leading placed in its proper context. Our Approximately 200 pages (or Act 1996 Seaman Paul McSweeney [2 armed forces are part of our com- Annotated by Nuala Jackson and munity and it is proper that the half of the book) concentrate on Stephanie Coggans CM/89]). It’s a pity that the outlining offences against mili- Round Hall Sweet & Maxwell (1998), authors did not provide a com- public be aware and understand tary law, the investigation and Brehon House, mentary on the appendixed the particular and unique environ- prosecution of offences, and in 4 Upper Ormond Quay, caselaw. Perhaps they feel that ment in which they operate. This Dublin 7. providing summaries of Courts ISBN 1-85800-125-0. Price: £25 this is a subject for another day. book will benefit the practitioner Martial Appeal Court judgments The authors have devoted an and the public alike, and provides from December 1983 until The Irish police: a legal and entire chapter to compensation, a bedrock for future works in this February 1997. Courts martial constitutional perspective negligence and breach of statutory area of law. G Dermot PJ Walsh procedures are outlined in great Round Hall Sweet & Maxwell (1998), duty. The duty of care of military detail. The decisions relating to Brehon House, authorities is explored by refer- Martin Reidy, Capt (Retired), B legal representation at informal 4 Upper Ormond Quay, ence to caselaw and comparison is Comm LLB is an apprentice solic- investigation of charges are Dublin 7. continually made with the situa- itor with the Athlone firm Tormey ISBN 1-899738-78-9. Price: £85 explained by reference to caselaw tion pertaining with the UK’s & Company.

ENDURING POWER OF ATTORNEY PRESCRIBED FORM As per SI no 196 and 287 of 1996. Available in Word 2, 6 and 7, and WordPerfect 6.1. Reproduced with the permission of the Controller, Government Stationery Office. Price per disk (incl p&p): £5 + 1.05 (VAT): £6.05 PRECEDENT FAMILY LAW DECLARATIONS New edition. Available in Word 6 and WordPerfect 5.1. Price per disk (incl p&p): £5 + 1.05 (VAT): £6.05 SECTION 68 –PRECEDENT LETTERS ALL NOW Available in Word 6 and WordPerfect 5.1. Price per disk (incl p&p): £5 + 1.05 (VAT): £6.05 AVAILABLE on ORDER FORM DISK Please supply disk(s)(disk suitable for Word 2, 6 and 7, and WordPerfect 6.1) for Enduring Power of Attorney Prescribed Form Please supply disk(s) (disk suitable for Word 6 or WordPerfect 5.1) for Precedent Family Law Declarations Please supply disk(s) (disk suitable for Word 6 or WordPerfect 5.1) for Section 68 Letters

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JANUARY/FEBRUARY 1999 LAW SOCIETY GAZETTE 53 PROFESSIONAL INFORMATION

Lower; and Prop 2 – Townland of Regd owner: Richard Gordon Good; Folio: O’Reilly, Maureen Flanagan, Grainne Drury LOST LAND Ballyfinneen and Barony of Bunratty 48836; Lands: Property situated in part of and Mary Margaret Kealy of Dominican CERTIFICATES Lower; Area: Prop 1 – 6a 2r 3p and 0a 1r 0p; the Townland of Knockaverry and Barony of Convent, Saint Mary’s, Cabra, Dublin; and Prop 2 – 23a 0r 32p; Co Clare Imokilly, County Cork; Co Cork Folio: 3075; Lands: Townland of Registration of Title Act, 1964 Regd owner: Jack Keane and Siobhan Keane, Regd owner: John Hegarty and Calasanctius Ballyfermot Lower in the Barony of An application has been received from the regis- Cappanty, Meelick, Co Clare; Folio: Hegarty; Folio: 2907L; Lands: Property sit- Uppercross; Co Dublin tered owners mentioned in the schedule hereto 19120F; Lands: Capateemore East, Bunratty uated in part of the Townland of Coolroe and Regd owner: Anne Perkins; Folio: 110747F; for the issue of a land certificate as stated to have Lower; Area: 0.370 Hectares; Co Clare Barony of Muskerry East, County Cork; Co Lands: Property known as 142 Ballyshannon been lost or inadvertently destroyed. A new cer- Regd owner: Hans Juerg Bracher; Folio: Cork Road, Coolock in the Parish of Coolock and tificate will be issued unless notification is 31097F; Lands: Property situated in part of Regd owner: Patricia Heneghan; Folio: 35074F; District of Coolock West; Co Dublin received in the registry within 28 days from the the Townland of Curraheen and Barony of Lands: Property situated in the Townland of Regd owner: Patrick Crowe, Parnell Avenue, date of publication of this notice that the original Kinnataloon; Co Cork Knockadoon and Barony of Imokilly, Mervue, Galway; Folio: 26684; Lands: certificate is in existence and in the custody of Regd owner: Cormac Cahill; 2 Endsleigh, County Cork; Co Cork Townland of Illaunbaun and Barony of some person other than the registered owner. Carrigaline, Co Cork; Folio: 8727L; Lands: Regd owner: Cornelius Murphy; Folio: 42871; Corcomroe; Area: 81a 0r 35p; Co Clare Any such notification should state the grounds Townland of Carrigaline West and Barony of Lands: Property part lands at Rathgoggin Regd owner: Bridget Geoghan; Folio: 419F; on which the certificate is being held. Kerrycurrihy; Co Cork Middle and Barony of Orerry and Kilmore Lands: Townland of Muing West and (Register of Titles), Central Office, Land Regd owner: Cork County Council; Folio: and County of Cork; Co Cork Barony of Trughanacmy; Area: 0a 0r 25p; Registry, Chancery Street, Dublin 13077; Lands: Property in the Kanturk Rural Regd owner: Francis Murphy; Folio: 29756; Co Kerry (Published 5 February 1999) District, County of Cork (the Labourers Lands: Property situate in part of the Regd owner: Lorna Cotter and Liam Griffin; Order 1907); Co Cork Townland of Awhirl More and Barony of Folio: 32697F; Lands: Townland of Manor Regd owner: Patrick Cooney, Castlebank, Regd owner: Rosaleen Dennehy (deceased); Muskerry East, County Cork; Co Cork West; Co Kerry Ardnacrusha, Co Clare; Folio: 11831 and Folio: 1234L; Lands: Property situated in Regd owner: William O’Callaghan; Folio: Regd owner: Patrick Nolan; Folio: 6675F; 11825; Lands: Prop 1 – Townland of part of the Townland of Ballinure, south side 30179; Lands: Property situated in the Lands: Townland of Sackville and Barony of Ballyfinneen and Barony of Bunratty Lower of Skehard Road and Parish of Saint Townland of Scarteen and Barony of Clanmaurice; Area: 0.581; Co Kerry and Castlebank and Barony of Bunratty Finbarrs and City of Cork; Co Cork Muskerry East, County of Cork; Co Cork Regd owner: Mary Windle; Folio: 7207 and Regd owner: John P O’Leary; Folio: 44956; 7137; Lands: Townland of Aughrim and Lands: Property situated in the Townland of Barony of Iraghticonnor; Area: Prop 1 – 17a Ballinaspig More and Barony of Cork; Co 0r 7p; and Prop 2 – 9a 2r 23p; Co Kerry Cork Regd owner: Declan and Mary Johnson; Folio: PARTNERSHIP OPPORTUNITY Regd owner: Patrick C Cunningham; Folio: 24193F; Lands: Coolree and Barony of Practice in South West Munster wishes to recruit a senior solic- 17384; Lands: Ummerawirrinan; Area: Prop Clane; Co Kildare itor. This is a long-established, profitable and progressive 1 – 1a 2r 4p; and Prop 2 – 71a 0r 0p; Co Regd owner: Denis Bennett; Folio: 2509F; Donegal Lands: O’More’s Forest and Barony of practice, a leader in its area and committed to expansion and Regd owner: Patrick McDermott, 29 Hawthorn Maryborough East; Co Laois the successful application of modern technology. The initial Heights, Letterkenny, Co Donegal and c/o Regd owner: James Phelan; Folio: 9367F; role will include responsibility for probate, conveyancing and Mrs Eileen Daly, 23 West Chapeltown Lands: Killeaney and Barony of taxation over a range of clients. Avenue, Bersden, Glasgow, Scotland; Folio: Maryborough West; Co Laois 6736F; Lands: Sallaghagrane; Co Donegal Regd owner: Thomas Reynolds, Mohercregg, This is an exciting opportunity for a mature, ambitious, career- Regd owner: Michael and Margaret Drumshanbo, Co Leitrim; Folio: 18218; minded person who is seeking a partnership within 3/5 years - McLaughlin, Aghavannon, Rathmullen, Co Lands: Prop 1 – Moher (Gregg) and Prop 5 depending upon performance and compatibility. Donegal; Folio: 33307; Lands: Aghavannan – Moher (Gregg); Area: Prop 1 – 12 acres Near; Area: 0a 3r 2 40p; Co Donegal and Prop 5 – 0.225 acres; Co Leitrim The successful candidate will: Regd owner: Maria Cassidy and Desmond Regd owner: Thomas Brennan; Folio: 2208; ● have 4 or more years post-qualification experience O’Neill, both of 21 Canonbrook Park, Lands: Townland of Rivers and Barony of Newcastle Road, Lucan, County Dublin; Clanwilliam; Area: 120a 1r 28p; Co in general practice. Folio: 86043F; Lands: Property known as 21 Limerick ● be self-reliant and calmly confident of their Canonbrook Park situate in the town and Regd owner: Timothy Hickey; Folio: 7711; professional abilities. Parish of Lucan, County Dublin; Co Dublin Lands: Townland of Ballylahiff and Barony ● understand current technology and its application Regd owner: Kevin Dooney and Lynda Dooney of Glenquin; Co Limerick of 77 Newbury Avenue, Clonshaugh, Dublin Regd owner: John J Reynolds, Aghanoran, in legal practice. 17; Folio: 8711F; Lands: Property situate in Lough Gowna, Co Cavan; Folio: 10591; ● be able to participate quickly and effectively at the Townland of Priorswood and Barony of Lands: Aghanoran; Co Longford a senior level. Coolock; Co Dublin Regd owner: Michael Bell and Elizabeth Bell, ● have strong inter-personal/communications skills. Regd owner: Bridget Duff; Folio: 45363L; 122 Newfield Estate, Drogheda; Folio: Lands: Townland of Rush and Barony of 1599L; Lands: Borough of Drogheda; Area: ● have a commercial and client service focus. Balrothery East, property situate to the east 0a 0r 10p; Co Louth side of Skerries Road in the town of Rush; Regd owner: Hotel and Motel Enterprises Remuneration Co Dublin Limited, Saint Bridgets, Clonskeagh, Co Initial remuneration offer will reflect the experience and abili- Regd owner: John A Hegarty of 21 Ormond Dublin; Folio: 11864; Lands: Carrickcarnan; ty of the successful candidate. Longer term prospects will be Square, Ormond Quay, Dublin; Folio: Area: 0a 0r 35p; Co Louth extremely rewarding. 14135; Lands: Property situate on the south Regd owner: James Coffey, Maheraboy, side of Collins Avenue Extension in the Kilmovee, Co Mayo; Folio: 42682; Lands: Please forward applications and C. V.’s (marked Parish and District of Santry and City of Prop 1 – Townland of Maheraboy and personal/strictly confidential) - to be received not later than 26 Dublin; Co Dublin Barony of Costello; and Prop 2 – Townland February 1999, to: Regd owner: Anthony and Caroline Lynch of 51 of Magheraboy and Barony of Costello; Shanliss Avenue, Santry, City of Dublin; Area: Prop 1 – 14a 0r 9p; and Prop 2 – Folio: 11328; Lands: Prop 1 – Townland of 12.862 acres; Co Mayo Mr. James Hyland, Santry and Barony of Coolock; and Prop 2 – Regd owner: Patrick John Moran and Elizabeth Hyland Johnson, A plot of ground situate on the east side of Moran; Folio: 16933; Lands: Townland of Chartered Accountants & Business Advisers, Shanliss Road in the Parish and District of Ballinrobe Demesne (part) and Barony of 26-28 South Terrace, Santry and City of Dublin; Co Dublin Kilmaine; Area: 2.313 acres; Co Mayo Cork. Regd owner: Juliana Lyons, Teresa Meenan, Regd owner: Gerard P O’ Donnell, Downhill Catherine Geehan, Katherine Hopkins, Mary Hotel, Ballina, Co Mayo; Folio: 450F;

54 LAW SOCIETY GAZETTE JANUARY/FEBRUARY 1999 PROFESSIONAL INFORMATION

Lands: Townland of Ballyholan and Barony Co Westmeath and Glascorn, Ballinea, of Tireragh; Area: 0a 2r 4p; Co Mayo Mullingar, Co Westmeath; Folio: 14577; Regd owner: Michael James Ryan; Folio: Lands: Balrath; Area: 1a 0r 32p; Co 24946F; Lands: Townland of Bundovowen Westmeath and Barony of Carra; Area: 1.868 acres; Co Regd owner: Mary Roche; Folio: 790(r); Lands: ADVERTISING RATES Mayo Gibberwell and Barony of Bargy; Co Advertising rates in the Professional information section are as follows: Regd owner: Joseph Caffrey, Oldcastle, Co Wexford Meath, also Napers Dome, Loughcrew, Regd owner: Ormond Morgan; Folio: 6207 and • Lost land certificates – £30 plus 21% VAT Oldcastle, Co Meath; Folio: 5606; Lands: 2740; Lands: Clara More and Meetings, • Wills – £50 plus 21% VAT Rahaghy; Area: 87a 3r 4p; Co Meath Trooperstown and Barony of Ballinacor • Lost title deeds – £50 plus 21% VAT Regd owner: Michael Connolly, The Flat South Wicklow; Co Wicklow • Employment miscellaneous – £6 per printed House, Dunboyne, Co Meath; Folio: 2119F; line plus 21% VAT (approx 4/5 words a line) Lands: Prop 1 – Piercetown; and Prop 2 - Pace; Area: Prop 1 – 6.525 acres; and Prop 2 WILLS All advertisements must be paid for prior to publication. Deadline for March – 7.535 acres; Co Meath Gazette: 19 February 1999. For further information, contact Catherine Regd owner: Dermot and Jean Butler; Folio: Kearney or Andrea MacDermott on 01 672 4800 6427F; Lands: Puttaghan and Barony of Bazzani, Rosetta, deceased, late of 7 Millbrook Ballycowan; Co Offaly Terrace, Old Kilmainham, Dublin 8. Would any Regd owner: James Egan, White Cottage, person having knowledge of a will of the above Dalton, Theresa, deceased, late of 43 Newport son having knowledge of a will of the above Culleenamore, County Sligo; Folio: 15670; named deceased, who died on 11 August 1998, Square, Waterford. Would any person having named deceased, who died on 18 January 1997, Lands: Townland of Culleenduff and Barony please contact Peter McDonnell & Associates, knowledge of a will dated 26 January 1988 of the please contact FitzGerald & O’Leary, of Carbury; Area: 6.026 acres; Co Sligo Solicitors, 5 Inns Court, Winetavern Street, above named deceased, who died on 15 Solicitors, 70 Shandon Street, Cork, tel: 021 Regd owner: Michael Fallon, Kilsellagh, Calry, Dublin 8, tel: 01 6795500, fax: 016795457 September 1998, please contact Messrs T Kiersey 301307, fax: 021 300020 County Sligo; Folio: 14166; Lands: Prop 1 – & Company, Solicitors, 17 Catherine Street, Townland of Drumkilsellagh and Barony of Campbell, Christina, deceased, late of 4 St Waterford, tel: 051 874366, fax: 051 870390 Edwards, Christopher, deceased, late of 494 Carbury; and Prop 2 – Castlegar (E D John’s Avenue, Pimlico, Dublin 8. Would any Crewhill, Maynooth, Co Kildare. Would any Glencar) and Barony of Carbury; Area: Prop person having knowledge of a will of the above Daly, Cornelius, deceased, late of person having knowledge of a will of the above 1 – 27a 3r 13p; and Prop 2 – 3a 1r 20p; Co named deceased, who died on or about 2 Clounmellane, (otherwise Gurrane), Firies, named deceased, who died on 11 January 1995, Sligo October 1998, please contact Mary Cowhey & Killarney, Co Kerry formerly of 10 Sunbury please contact Patrick Neligan, Solicitor, Main Regd owner: Monica Curran; Folio: 27272; Company, Solicitors, Main Street, Maynooth, Gardens, Dartry Road, Rathmines, Dublin. Street, Maynooth, Co Kildare, tel: 01 6285322, Lands: Barretstown and Barony of Co Kildare, tel: 01 6285711, fax: 01 6285613 Would any person having knowledge of a will of fax: 01 6285281 Middlethird; Co Tipperary the above named deceased, who died on 18 Regd owner: John and Tina Kennedy; Folio: Carrigan, John, deceased, late of Kilshane November 1998, please contact David Twomey Jennings, William, deceased, late of 21610F; Lands: Toberaheena and Barony of Cross, Ashbourne Road, Finglas, Dublin 11 and & Company, Solicitors, Castleisland, Co Kerry, Killuremore, Ahascragh, Ballinasloe, County Iffa and Offa East; Co Tipperary formerly of 296 Cappagh Road, Finglas West, tel: 066 7141211, fax: 066 7142252 Galway. Would any person having knowledge Regd owner: John King; Folio: 5009F; Lands: Dublin 11. Would any person having knowledge of a will of the above named deceased, who Lacka and Cloncorig and Barony of Ormond of a will of the above named deceased, who died Domican, John, deceased, late of Mylerstown, died on 2 October 1998, please contact Pearts, Lower; Co Tipperary on 7 October 1998, please contact Sexton Roberstown, Naas, County Kildare. Would any Solicitors, 24-26 Upper Ormond Quay, Dublin Regd owner: Jane McTighe and Marie Keenan & Company, Solicitors, 138 person having knowledge of the drafting or exe- 7, tel: 01 8722311, fax: 01 8722852 McTighe; Folio: 19342; Lands: Walkinstown Avenue, Dublin 12, tel: 01 cution of a will for/by the above named Castleholding and Barony of Skerrin; Co 4500833, fax: 01 4500226 deceased, who died on 26 April 1996, please McKeon, Con, deceased, late of Rathvilla, Tipperary contact Stephen Maher, Solicitor, 6 The Courts, Edenderry, Co Offaly. Would any person having Regd owner: Fintan Nagle, Balrath, Ballinea, Corcoran, Martin, deceased, late of Apartment Newbridge, Co Kildare, tel: 045 433425, fax: knowledge of a will of the above named 5A, The Glen, Bettyglen, Raheny, Dublin 5. 045 434203 deceased, who died on 27 November 1998, Would any person having knowledge of a please contact Byrne & O’Sullivan, Solicitors, will/codicil of the above named deceased, who Donnelly, John Joseph (otherwise Sean), Windsor Lodge, Edenderry, Co Offaly, tel: 0405 DUBLIN SOLICITORS’ died on 14 December 1998, please contact deceased, late of 53 Milford, Malahide, Co 31522, fax: 0405 31828 PRACTICE OFFERS Messrs H C Browne & Company, Solicitors, Dublin and formerly of 32 St Fintan’s Road, Malahide Road/Kilmore Road Corner, Artane, Sutton, Co Dublin. Would any person having McNally, Stephen Oliver, deceased, late of 7 AGENCY WORK Dublin 5, tel: 01 8327849, fax: 01 8327852 knowledge of a will of the above named Castle Court, Newtownforbes, Co Longford and IN NORTHERN deceased, who died on 30 December 1997, formerly of 27 Grenville Road, Blackrock, Co please contact Orpen Franks, Solicitors, 28/30 Dublin and of Edenderry and of 12 Raheen IRELAND Burlington Road, Dublin 4 (Ref CC/SC), tel: 01 Heights, Limerick. Would any person having 6689622, fax: 01 6689004 knowledge of a will of the above named * All legal work undertaken deceased, who died on 17 November 1998, on an agency basis ENGLISH AGENTS: Donohoe, John, deceased, late of 37 Kylemore * All communications to clients through instructing solicitors Agency work undertaken Avenue, Ballyfermot, Dublin 10. Would any per- * Consultations in Dublin if required for Irish solicitors in son having knowledge of a will of the above LOST A WILL? both litigation and named deceased, who died on 21 August 1997, Contact: Séamus Connolly non-contentious matters – please contact Patricia Carroll, Solicitor, Law TRY THE Moran & Ryan, Solicitors, including legal aid. Centre, 45 Lower Gardiner Street, Dublin 1, tel: REGISTRY OF WILLS Arran House, 01 8745440, fax: 01 8746896 SERVICE 35/36 Arran Quay, Dublin 7. Fearon & Co, Tel: (01) 8725622 Donohoe, Sadie, deceased, late of 37 Kylemore Fax: (01) 8725404 Solicitors, Avenue, Ballyfermot, Dublin 10. Would any per- son having knowledge of a will of the above E-mail: [email protected] Westminster House, named deceased, who died on 21 October 1997, Tuckey’s House, or Bank Building, Hill Street 12 The Broadway, Woking, please contact Patricia Carroll, Solicitor, Law 8, Tuckey Street, Newry, County Down. Surrey GU21 5AU. Centre, 45 Lower Gardiner Street, Dublin 1, tel: CORK. Tel: (0801693) 65311 Tel: 0044 1483 726272 01 8745440, fax: 01 8746896 Fax: (0801693) 62096 Tel: +353 21 279225 E-mail: [email protected] Fax: 0044 1483 725807 Fax: +353 21 279226 Dowling, Michael, deceased, late of 2 Kent Dx No: 2534 Cork Wst Road, Ballyphehane, Cork City. Would any per-

JANUARY/FEBRUARY 1999 LAW SOCIETY GAZETTE 55 PROFESSIONAL INFORMATION please contact John J Quinn & Company, Midwest position sought by reliable and com- Down, tel: 080 1693 64611, fax: 080 1693 67000. Solicitors, Earl Street, Longford, tel: 043 petent male solicitor, three years’ post-qualifica- MEDIATION Contact K J Neary 41541, fax: 043 45343 tion experience. Experience mainly litigation and conveyancing. Reply to Box No 15 Family Mediator – Private Practitioner. A luxury spacious one bedroom apartment; car Maguire, Frank, deceased, late of Gurranes, Trained by Michael Williams. space, tennis court, near Smithfield, Four Courts Caheragh, Drimoleague, Co Cork. Would any Solicitors’ apprentice with experience and Immediate appointments. etc, tel: 01 6768844 (w) or 01 2892603 (h) person who holds or has knowledge of a will of post-professional course, seeks apprenticeship Tel: A Gannon 01 8328730 the above named deceased, who died on 5 in Midlands region. Reply to Box No 16 D2 Wintergarden – new luxury furnished one February 1998, please contact Wolfe & bedroom apartment, car space, tel: 01 2892603 Company, Solicitors, Market Street, Solicitor – with experience in litigation avail- Skibbereen, Co Cork (Ref POR) tel: 028 able for part-time work on a contract or locum GRACE CORRIGAN Practice wanted to purchase in Cork City or 21177, fax: 028 21676 basis in the Dublin area. Reply to Box No 17 Family Mediator County Cork/Kerry area – size immaterial – adver- Marriage Separation Mediation tiser is outside these areas – all replies will be treat- Mahon, John Aidan, deceased, late of 43 Family/Workplace ed with complete confidence. Reply to Box No 191 Nugent Road, Churchtown, Dublin 14. Would Co Mayo solicitor required for busy Conflict Resolution any person having knowledge of a will of the general practice – litigation, con- By Appointment above named deceased, who died on 16 veyancing and probate. Appointee will TITLE DEEDS November 1998, please contact Cogan-Daly & have responsibility for effective legal 01-2892896 Company, Solicitors, Brighton House, 50 management Terenure Road East, Rathgar, Dublin 6, tel: 01 of the office, with the assistance In the matter of the Registration of Title Act, 4904494, fax: 01 4903190 of an efficient administration function 1964 and of the application of Owens Medical and regular input MISCELLANEOUS Hall Ltd in respect of property in the county of O’Shea, Ellen Ann, deceased, late of Corbally from the principal. Carlow Nursing Home and lately of St Gerard’s This is a full-time position. May suit a County: Carlow Nursing Home, Limerick. Would any person solicitor living within a Northern Ireland solicitors providing an effi- Lands: Premises at no 24 Main Street, having knowledge of a will of the above named 30 mile radius who could spend three cient and comprehensive legal service in all con- Bagenalstown deceased, who died on 2 January 1999 at St days per week on site, and tentious/non-contentious matters. Dublin-based Dealing no: J5440/98 Camillus’ Hospital, Shelbourne Road, remainder working and consultations and elsewhere. Fee apportionment. Limerick, please contact William Fitzgibbon, communicating by telephone, ML White, Solicitors, 43-45 Monaghan Street, Take notice that Owens Medical Hall Ltd of Main Solicitor, Mitchelstown, Co Cork, DX 30 003, fax and e-mail. Newry, County Down, tel: 080 1693 68144, fax: Street, Bagenalstown, Co Carlow, has lodged an tel: 025 84255, fax: 025 84329 For further information, please con- 080 1693 60966 application for registration on the Freehold tact, in complete Register free from encumbrances in respect of the Rice, Margaret, deceased, late of 249 confidence, Noeleen Gibson, Gibson & Northern Ireland agents for all contentious and above property. The original title documents spec- Connolly Road, Ballyphehane, Cork. Would Gibson Recruitment non-contentious matters. Consultation in Dublin if ified in the schedule hereto are stated to have been any person having knowledge of a will of the Consultants, tel: 01 6607211, required. Fee sharing envisaged. Offices in lost or mislaid. The application may be inspected at above named deceased, who died on 29 April fax: 01 6607078 or write to her at 21 Belfast, Newry and Carrickfergus. Contact this registry. 1998, please contact Eamon Murray & Percy Place, Dublin 4 Norville Connolly, D&E Fisher, Solicitors, 8 The application will be proceeded with unless Company, Solicitors, 6/7 Sheares Street, Cork, Trevor Hill, Newry, tel: 080 1693 61616, fax: 080 notice is received in the registry within one calen- tel: 021 276163, fax: 021 274801 1693 67712 dar month from the date of publication of this Solicitor required for practice in tourist town in notice that the original documents of title are in Sutton, Thomas, deceased, late of Rathard, the west of Ireland with a least one year’s post- Personal injury claims, family law, criminal law existence. Any such notice should state the Mullinavat, Co Kilkenny. Would any person qualification experience in general practice, par- and property law in England and Wales. We have grounds on which the documents are held and having knowledge of a will dated 8 December ticularly conveyancing, probate and taxation. specialist departments in each of these areas, and quote the dealing reference above. 1980 of the above named deceased, who died Reply to Box No 18 offices in London (Wood Green and Camden) and Sean MacMahon, Examiner of Titles, 23 on 27 April 1985, please contact Messrs T Birmingham. One of our staff is in Ireland for one December 1998 Kiersey & Company, Solicitors, 17 Catherine Solicitor required for temporary, full-time week in every month. Legal aid available to clients Street, Waterford, tel: 051 874366, fax: 051 position in busy Waterford City practice for a that qualify. Contact David Levene & Company, Schedule 870390 minimum of three months. Experience in con- Ashley House, 235-239 High Road, Wood Green, 1. Original probate of the will dated 16 March veyancing and litigation essential. Modern London N22 4HF, England, tel: 0044 181 881 1951 of Patrick Joseph Owens who died on 20 office with excellent pay and conditions. Apply 7777, fax: 0044 181 889 6395, and The McAllen April 1951 which issued forth of the Kilkenny EMPLOYMENT in confidence with CV to MM Halley & Son, Building, 35 Dale End, Birmingham B4 7LN, tel: District Registry of the High Court on 9 Solicitors, 5 George’s Street, Waterford 0044 121 212 0000, fax: 0044 121 233 1878 November 1951 to Thomas R Chambers, the sole executor therein named Assistant solicitor required for Midlands Experienced solicitor available for locum London solicitors will advise on UK matters and 2. Original indenture of assignment dated 21 office. Reply to Box No 10 work. Reply to Box No 19 undertake agency work. All areas. Corporate/pri- August 1952 made between Elizabeth Lynch of vate clients. Ellis & Fairbairn, 26 Old Brompton the one part and Owens Medical Hall Limited Solicitor required – Sligo. Minimum two Road, South Kensington, London SW7 3DL, tel: of the other part. years’ experience in probate and conveyancing. 0044 171 589 0141, fax: 0044 171 225 3935 Excellent conditions. Salary commensurate OSBORNE Fanning, Ms Nora (otherwise Hanora), a ward of with experience. Reply to Box No 11 RECRUITMENT Agents – England and Wales. We are willing to court: Property of 66 Park Crescent House, act as agents for Irish solicitors in civil and crimi- Blackhorse Avenue, Dublin 7. Would any person nal litigation. Contact: Olliers, Solicitors, Experienced apprentice required for practice Top Dublin Bank holding or knowing the whereabouts of the docu- in large town in the west of Ireland for five to Alderman Downward House, 2/3 The Birtles, ments of title relating to the above premises, the six months’ contract commencing April 1999. seeks Civic Centre, Wythenshawe, Manchester M22 property of the above please contact the General Reply to Box No 12 Legal Sec c£17K! 5RF, tel: 0044 161 437 0527, fax: 0044 161 437 Solicitors Office for Minors and Wards of Court, Ph Gina on 3225 Aras Ui Dhalaigh, Inns Quay, Dublin 7 (Ref Newly-qualified solicitor required for five to 6628686 LS/1454). The deeds would comprise the following: six months’ contract in large west of Ireland Northern Ireland solicitors. Will advise and 1. Original indenture of lease dated 2 May 1974 town. Reply to Box No 13 Fax 6628689 undertake NI-related matters. All areas corpo- between Blackhorse Estates Ltd of the one part or email rate/private. Agency or full referral of cases as pre- and Robert Stewart of the other part Solicitor – ten years’ post-qualification expe- osborne@ tinet.ie ferred. Consultations in Dublin or elsewhere if 2. Assignment dated 24 May 1977 between Mary rience conveyancing/probate seeks fresh chal- required. Fee sharing envisaged. Donnelly Neary Mullery of the one part and Nora Fanning of the lenge – Dublin area. Reply to Box No 14 & Donnelly, 1 Downshire Road, Newry, Co other part.

56 LAW SOCIETY GAZETTE JANUARY/FEBRUARY 1999