Contents GazetteLawSociety

Regulars Cover Story Keane’s sense of justice President’s message 3 12 The new chief justice, Ronan Keane, has been in office just a little over three months. In his first-ever press interview, he tells Conal News 4 O’Boyle about his plans for the Supreme Court and why solicitors had better brush up on their debating skills if they want to make it Letters 7 to the top Viewpoint 8

Book reviews 26 Reporting restrictions on 16 the Nevin case: a step Tech trends 28 too far? Briefing 30 During the recent Catherine Nevin murder trial, Ms Justice Mella Carroll Council report 30 made certain orders restricting press Committee coverage of the case. Simon McAleese reports 31 argues that her restrictions were Practice notes 32 excessive and incorrect In a corner 35 Personal injury Discovery judgments 37 23 in the District FirstLaw update 40 Court Eurlegal 45 New rules dealing with District Court discovery People and orders should make life a little easier for practitioners places 50 and their clients, writes Patrick Mullins Professional information 52 CDU: Time well spent? Cross-examination 56 25 Continuing its series of articles on the Law School’s syllabus for apprentices, the Curriculum Development Unit asks members for their views on whether the society has got the balance right between the professional practice and advanced courses

Editor: Conal O’Boyle MA. Assistant Editor: Maria Behan. Designer: Nuala Redmond. Editorial Secretaries: Catherine Kearney, Louise Rose. Advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9, tel/fax: 837 5018, mobile: 086 8117116, e-mail: [email protected]. Printing: Turners Printing Company Ltd, Longford. Editorial Board: Dr Eamonn Hall (Chairman), Conal O’Boyle (Secretary), Mary Keane, Pat Igoe, Ken Murphy, Michael V O’Mahony, Vincent Power

The Law Society of Ireland can accept no responsibility for the accuracy of contributed 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 otherwise indicated. No responsibility for loss or distress occasioned to any person acting or refraining from acting as a result of the material in this publication can be accepted by the authors, contributors, Editor or publishers. The Editor reserves the right to make publishing decisions on any advertisement or editorial article submitted to this magazine, and to refuse publication or to edit any editorial material as seems appropriate to him. Professional legal advice should always be sought in relation to any specific matter.

Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4801. Volume 94, number 4 E-mail: [email protected] Law Society website: www.lawsociety.ie Subscriptions: £45

1 Law Society Gazette May 2000 The Law Society Credit Card designed exclusively for you

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AD-5-00-5393-AIR President’s message

Better late than never

t least no-one can accuse us of unseem- start patting ourselves ly haste. Fifty-one years ago we signed on the back, perhaps we up to the European convention on human should bear in mind this rights and now it’s finally going to be country’s tendency to A incorporated into Irish law – two give with one hand and months earlier than was originally planned. to take back with the While the Law Society warmly welcomes the other. ‘Lawyers government’s announcement that the convention The government has announced it is ready to should be in will come into force by October – after all, we have implement the restrictions on the right to bail that been arguing for its adoption for more years than I were passed in a constitutional referendum three the vanguard care to remember – it would be nice to think that years ago. The introduction of these restrictions of those who the decision reflects this country’s outstanding was delayed because of the lack of prison space to commitment to human rights and justice for all. accommodate those affected by this most illiberal fight against But we all know that’s not the case. The fact is that of measures. At the time the Law Society expressed racism and we were obliged to take this step under the Good its serious concerns about restricting the right to Friday agreement. It’s no coincidence that Britain bail for criminal suspects. Those concerns are still bigotry’ had already announced it would do so by October. valid, and will probably continue to be ignored.

Bottom of the league Changing attitudes Ireland will be the last of the 41 member states of The rising wave of intolerance towards those who the Council of Europe (and the last of the 15 EU come to our shores seeking refuge from states) to incorporate the convention into domestic persecution might also give us pause for thought. legislation. Think about that for a moment. Last Lawyers should be in the vanguard of those who out of 41. Not even our national bobsleigh team is fight against racism and bigotry. And the fact that that bad. we are adopting the convention into domestic law For 51 years, successive Irish governments have doesn’t mean that people will change their resisted the pressure to incorporate an international attitudes as a result. agreement – which we signed up to voluntarily – The solicitors’ profession gets a certain amount that would allow the Irish courts to enforce of bad press from time to time. And occasionally provisions defending fundamental civil liberties, some of it is deserved. No profession is perfect. including freedom of speech and religious But I think we can be justifiably proud of our observance. And as a result, Irish citizens have been record in defending the civil and human rights of obliged to take their cases to the European Court our clients and the Irish citizen generally. We of Human Rights in Strasbourg if they wanted to understand that the law is the cornerstone of argue that particular laws or decisions infringed democracy, and if we don’t fight for it, who will? their civil rights – a long and costly process. The European convention on human rights should Minister for Justice John O’Donoghue has help us in that fight. described the government’s decision as ‘the most significant development ever in terms of human Anthony Ensor, rights in this jurisdiction’. Indeed. But before we President

3 Law Society Gazette May 2000 News

SOLICITORS STRUCK OFF In the matter of Francis G Radical overhaul of adoption Costello, a solicitor, and in the matter of the Solicitors Acts, 1954 to 1994: take notice that legislation urged by order of the High Court, made on 14 February 2000, it dopted people should have was ordered that the name of Athe right to access Francis G Costello, solicitor, information about their natural formerly practising under the parents as part of a complete style and title of Francis G overhaul of adoption legislation, Costello & Company at 51 according to a new report by the Donnybrook Road, Dublin 4, be Law Society’s Law Reform struck off the roll of solicitors. Committee. The report, In the matter of Conor Adoption law: the case for reform, McGahon, a solicitor, and in was launched last month at a the matter of the Solicitors press conference in the Law Acts, 1954 to 1994: take Society’s Blackhall Place notice that by order of the High headquarters. Launch of the Law Reform Committee’s adoption report last month Court, made on 21 February It calls for the establishment 2000, it was ordered that the of a ‘voluntary contact register’ would allow step-parents to adoption leads to a dispute name of Conor McGahon, to enable adopted children and formally adopt their step- • That adoption disputes be solicitor, formerly practising birth parents to get in touch children and would allow many heard by the proposed under the style and title of with each other, but it adds that children currently confined to regional family courts McGahon & Company at 19 the law should also provide for long-term care to be adopted by • That ‘open adoption’ (where Jocelyn Street, Dundalk, Co an ‘information veto register’ by a family. The report points out some kind of relationship Louth, be struck off the roll of which birth parents or adopted that the current ban on exists between the adoptee solicitors. children can ensure their adopting marital children ‘can and the adoptive parents and privacy. run counter to the best interests birth parents) be encouraged EUROPEAN TRAINING FOR The report says: ‘It seems of the child, for example, where • That the huge body of LAWYERS appropriate that an adopted deeply committed foster parents adoption legislation be The Council of the Bars and person should have access, at a are prevented from adopting’. consolidated into a single act. Law Societies of the European minimum, to the names and The report also recommends Union (CCBE) is offering a addresses of both birth parents, that the law should recognise a The Law Society’s Law Reform training programme on legal if available, and to information natural father’s relationship with Committee has submitted its and judicial co-operation in on the existence of any siblings. his child where that child’s adoption report to the Europe. It aims to make Even where there is a veto in mother and her new partner Department of Health and lawyers throughout Europe operation, they should be seek to adopt. Children as part of its on-going aware of the need for a good entitled to a copy of their birth The report goes on to make programme of highlighting knowledge of the European and adoption certificates, though a number of further proposals those areas of the law in urgent dimension to legal and judicial some identifying information for reforming the law on need of reform. co-operation between national might be required to be blanked adoption. These include: and community jurisdictions. out or otherwise concealed’. • The provision of legally- The full text of the report is The programme will be split In addition, it suggests that aided advice and available on the Law Society’s between theory and practice legislation should require representation where website at www.lawsociety.ie. and begins on 31 July in adoption agencies to retain Brussels. Applications should carefully, under threat of be received by 1 June. For criminal penalty, all records Revised AG’s Scheme issued further information (and relating to adoptions. It also application forms), contact calls for the provision of revised version of the the scheme. According to the Howard Linnane in the Law counselling for those seeking AAttorney General’s Scheme new version, the scheme applies School. birth information or contact and has been issued, clarifying which to the following types of litiga- for detailed guidelines for those types of judicial review are tion: habeas corpus applications, MARITIME LAW SEMINAR offering tracing and reunion covered and which costs are bail motions, judicial reviews A seminar on recent services. available. The scheme is intended such as certiorari, mandamus or developments in Irish maritime Among its many recom- to provide legal representation prohibition (and which are law and promoting Ireland as mendations, the report argues for people who need it but can’t concerned with criminal matters a centre for maritime that unmarried couples should afford it, and applicants must or where the applicant’s liberty is arbitration and commerce will no longer be excluded from satisfy the court at the start of at stake), applications under take place on 17 May at adopting and that children born proceedings that they are unable section 50 of the Extradition Act, Jury’s Hotel, Ballsbridge, within marriage should be to retain a solicitor or counsel 1965 and District Court Dublin 4. eligible for adoption. This unless they receive the benefit of extradition applications.

4 Law Society Gazette May 2000 News

ECJ LITIGATION SEMINAR Chief Justice warns of media The Law Society, together with the English Bar Council and the European Law Academy, has pressure on judges organised a seminar on Litigation in the European Court of Justice he media may be putting the ‘Judges are not children, and to be held in Trier, Germany, from Tjudiciary under too much they know that’s part of the job 20 to 22 September. Topics pressure, according to Chief and they get on with it. But it’s covered will include an in-depth Justice Ronan Keane. In an a pressure that perhaps they look at the European Court of exclusive interview with the shouldn’t be subjected to’. Justice, references from national Law Society Gazette, he said that The Chief Justice also said courts to the European courts judges were now ‘subjected to that he didn’t believe that recent and the relationship between EC much more intense publicity controversies, such as the law and national law. There are and scrutiny than they ever were Sheedy affair, had damaged the 15 places reserved for Irish in the past’ and that they risked judiciary in the eyes of the solicitors and apprentices. There ‘being deluged with criticism’ if public. ‘I take quite a strong will be no fee, though partici- they brought in a verdict that view about this. I don’t think pants will be expected to meet didn’t find favour with journal- the judiciary has been damaged their own travel and accommoda- ists and the general public. but we cannot afford to be tion costs. Further details can be ‘They have the spotlight of Dublin’s Four Courts: are judges complacent either’. The obtained from the Law School or under too much pressure? media attention on them committee on judicial ethics, set from Ide Ni Riagain at the morning, noon and night. an ill-informed public thinks up in the wake of Sheedy, would European Law Academy. That’s a fact of life that we have there should be a particular be reporting to the government to accept’, he said. ‘But it result and that he may be later this year, he added. DEAL REACHED ON ARMY doesn’t make it any easier for a deluged with criticism when (See also page 12 for the full DEAFNESS CASES judge, knowing that sometimes the verdict comes out. interview.) A breakthrough has been reached in negotiations between the solicitors involved in army deafness litigation and the McAleese to open Education Centre representatives of the Depart- resident Mary McAleese of-the-art 200-seat lecture ment of Defence (see March Phas agreed to perform the theatre before unveiling a issue, page 5). The deal, formal opening of the Law plaque. brokered by the Law Society, Society’s new £5 million The substantially redesigned means that all army deafness Education Centre at Blackhall and improved professional cases that were due to be heard Place on 2 October. course will begin later that week in the Easter law term, which Appropriately, the date in for the first intake of 360 runs from 1 May to 8 June, have question will be the first day of apprentices. The centre will been adjourned to allow settle- the new legal year. President also be available for CLE ment negotiations to take place. McAleese, who in an earlier courses. The Chief State Solicitor’s part of her career was head of The building itself is coming Office will be contacting as many the Institute of Legal Education in on time and on budget and is plaintiffs’ solicitors as possible to arrange meetings with them. at Queen’s University, Belfast, President Mary McAleese: scheduled to complete its will address an invited audience getting the new legal year off construction in early July, Settlement discussions will be in the Education Centre’s state- to a good start followed by a fitting-out period. based on the levels of quantum set by the Supreme Court late last year in the Hanley case. No joy on Land Registry fees While the scheme is being ast month the Minister for it got better. current conditions but, with conducted on an experimental LJustice, Equality and Law The society was represented the recruitment of some 60 basis at the moment, the Reform John O’Donoghue met by President Anthony Ensor, new staff approved, he was department says it hopes it will a Law Society delegation to Director General Ken trying to reverse the effects of lead to ‘the disposal of all discuss the problems with the Murphy, Conveyancing years of under-investment. outstanding cases within a Land Registry, but he declined Committee chairman Brian Despite the society’s concerns reasonable period of time’. to comply with the society’s Gallagher, and Orla Coyne of about moving the Land Commenting on the deal, Law request that the new fees order the DSBA’s Conveyancing Registry in its current Society Director General Ken be withdrawn. Moreover, he Committee. condition to semi-state status Murphy said: ‘While it is too said that the arrears of dealings The minister indicated that (see last issue, page 11), he is early to say for certain, there are was now in excess of 100,000 he fully understood the still inclined to pursue this positive signs that this could be and, he feared, the situation frustration of solicitors dealing course. the key to resolving the was likely to get worse before with the Land Registry under outstanding 10,000 cases’.

5 Law Society Gazette May 2000 43 Fitzwilliam Place Dublin 2 Ireland Tel: (01) 662 5301 Fax: (01) 662 5302 DX: 109032 Fitzwilliam Email: [email protected]

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A few votes short of a resolution From TC Gerard O’Mahony, alteration to the society’s which the society is very Dublin premises. Subject to survey, the conscious. Planning permission r Conor O’Toole’s letter cost could be in the range of has been sought to increase the M(Gazette, Jan/Feb issue, £3.3 million to £4.7 million, spaces potentially available. page 6) hit a sore spot with depending on the degree of This application, however, is solicitors denied parking amenity required. Even as an not in accordance with some of facilities at their Blackhall investment, it could be a very the more radical proposals Place premises. Parking in the beneficial proposition. which have been put forward vicinity of the Four Courts is a If sufficient members are over the years by Mr fundamental need of the interested and contact me, I O’Mahony. These proposals, at profession that has funded a would purport to pursue least some of which envisaged magnificent new school for its further in consultation with the sale of the Blackhall Place students at over £5 million. them preparatory to procuring premises, have been discussed at A modest proposal to the Law In association with Society the interest of the Council. length by Mr O’Mahony at a professionals in the number of general meetings, development field, a 200 parking spaces. Law Society Director including a resolution at the proposition was put to the Law In the present circumstances, General Ken Murphy most recent annual general Society last year, which, apart we could provide upwards of replies: meeting. They have received a from the enormous economic 650 parking spaces in The fact that the demand for car fair hearing, although little or and organisational benefit, conjunction with adjoining parking spaces in Blackhall Place no support, from members at would provide an additional developments, with no material exceeds supply is a problem of these meetings. DUMB AND DUMBER From: John Keaney, BCM Hanby taste for very expensive cigars close the door. Correct answer: Simply swim Wallace, Dublin bought a huge number of them This question tests whether you across. All the crocodiles are Place: Coventry Magistrates and insured them for a great deal are doing simple things in a attending the animal meeting. Court of money against a host of complicated way. This question tests your Date: Late 1980s misfortunes – including fire. Then reasoning ability. Magistrate: The possession of he smoked them. Question 2: How do you put an Class A drugs is a serious When the insurance company elephant in a refrigerator? If you answered four out of four offence. I believe that drug abuse refused to pay up, he Incorrect answer: Open the questions correctly, you are a is at the very core of the successfully sued them and refrigerator, put in the elephant true professional and a great breakdown of the fabric of our received his claim. But the and shut the refrigerator. deal of wealth and success await society and it is something that insurance company had the last Correct answer: Open the you. If you answered three out of this bench has always taken a laugh when they counter-sued him refrigerator, take out the giraffe, four, you have some catching up very dim view of. Now, have you for arson. The poor sod wound up put in the elephant and close the to do but there’s hope for you anything to say before I pass with a massive fine and two years door. yet. If you answered two out of sentence on you? in prison for insurance fraud. This question tests your foresight. four, consider a career as a The defendant reaches into his hamburger flipper in a fast-food back pocket and pulls out a From: Brian O’Kane, Cork Question 3: The Lion King is joint. If you answered one out of tobacco tin, holds it to his mouth, The following is an excerpt from a hosting an animal conference. All four, try selling some of your taps it with his other hand. recent Mensa magazine. It quoted the animals attend except one. organs. It’s the only way you will Defendant: Beam me up, Scotty, an Internet quiz consisting of four Which animal does not attend? ever make any money. If you it’s getting hot down here. questions that ought to tell you Correct answer: The elephant. answered none correctly, whether or not you are qualified The elephant is in the refrig-erator. consider a career that does not From: Gearoid O Baoill, Politics to be a professional. This tests if you are capable of require any higher mental Dept, Trinity College comprehensive thinking. functions at all, such as law or I heard this story recently, and I Question 1: How do you put a politics. haven’t been able to find a giraffe into a refrigerator? Question 4: There is a river filled source to substantiate it: Correct answer: Open the with crocodiles. How do you cross Mr Keaney wins the bottle of Apparently, an American with a refrigerator, put in the giraffe and it? champagne this month.

7 Law Society Gazette May 2000 Viewpoint When did you last read the law reports?

Failure to keep yourself up to date with the latest reported cases could seriously damage your professional health, warns Eamonn Hall

he decisions of the superior the court rose for a short time Tcourts in Ireland, as report- to give the advocates an ed in the pages of the various opportunity of checking any law reports (including The Irish authorities. Judge Kenny was reports and in recent decades then informed on resuming the the Irish law reports monthly) hearing that the authorities constitute, together with the ‘faxed through’ during the brief statute book, the living law of adjournment did not advance this country. It is also appropri- matters at all. Accordingly, the ate to include here the elec- judge then construed the tronic Irish weekly law reports. statutory provisions without The decisions of the judges as the benefit of any authority reported in the law reports, and concluded that Copeland vested with the authority was not fixed with attached to them as precedents, responsibility for what his constitute formal elements of solicitors had done or had not the common law and constitu- done. tional law of Ireland. The matter went to the Many readers will know that Court of Appeal. The Court of the Incorporated Council of Appeal stated that Judge Law Reporting for Ireland, Kenny was wrong in so established in 1866 with the concluding. He was wrong concurrence of the judges, law because the contrary had been officers of the state, the bar Are you ready if a judge throws the book at you? decided by the Court of Appeal and the Law Society, has itself in the case of Henderson v published The Irish reports barrister who holds himself out body when it was lying on the Te mple Pier Company Limited continuously since 1866 and to be competent in a particular ground. Copeland instructed ([1998] 1WLR 1540). That these reports are regarded as field of law as to whether he experienced solicitors to act on case had been reported in part the official or quasi-official law must keep himself up to date his behalf, and proceedings 36 of the Weekly law reports for reports in Ireland. The council with recent authority as set out were initiated against Smith. 1998 some four-and-a-half also publishes the Digests of in the law reports. Subsequently, it transpired, months before the relevant cases which not only contain The duty of advocates to outside the statutory limitation hearing took place before reports of cases in The Irish keep up to date was considered period, that it might have been Judge Kenny in the Circuit reports but also include the by the Court of Appeal a Mr Goodwin who was the Court. Lord Justice Buxton in headnotes of the Irish law (England and Wales) in person responsible for knocking the Court of Appeal stated that reports monthly and The Copeland v Smith ([2000] All Copeland off his motorcycle. he could not draw back from Northern Ireland reports. ER 457). The background to Goodwin was joined as a party expressing his very great Before proceeding any the case is as follows. Stephen to the proceedings and he concern that Judge Kenny was further, I must declare an Copeland was riding his appealed against that decision. permitted by professional interest. I have the privilege of motorcycle on the M3 The issue arose as to advocates to approach the having been elected chairman motorway when he was whether, in construing the UK matter at issue as if it were free of the Law Reporting Council involved in a serious traffic Limitation Act 1980, a claimant from authority when there was of Ireland, but the council is a accident on 24 September was fixed with the knowledge of a recently reported case of the legal charity and neither the 1993. He suffered serious the action or inaction of his Court of Appeal directly on the chairman nor any member of injury but had little solicitors. When the judge in point ‘which was not reported the council receive emoluments recollection of what occurred. the Circuit Court, Judge in some obscure quarter but in in their capacity as members. There were several vehicles Kenny, heard the matter on 31 the official law reports’. Lord This note is also written in a involved. He originally sued a March 1999, he was apparently Justice Buxton stated that it personal capacity. Mr Smith, alleging that the told that there was no authority was not only extremely The issue arose recently as vehicle Smith was driving had covering the point at issue. The discourteous to Judge Kenny to the duty of a solicitor or collided with his (Copeland’s) judge expressed surprise and not to inform him properly

8 Law Society Gazette May 2000 Viewpoint

about the law, but it had also listing the cases that had been place which enable them to having to incur the cost of legal been wasteful of time and referred to and also by means keep themselves up to date assistance for judges. He noted, money because the matter had of the very helpful headnotes with cases which had been of course, that it was the duty ended up in the Court of provided. He trusted that considered worthy of being of an advocate to draw the Appeal. lapses of this sort would not reported in another general judge’s attention to authorities Lord Justice Buxton occur again. series. He added that if this was which are in point, even if they considered that the advocates Lord Justice Brooke, in a not done, judges might be are adverse to the advocate’s who appeared in the court concurring judgment in the getting the answer wrong, case. below did not discharge their same case, said that it was through the default of the While there is no recent duty properly to the court and essential for advocates who advocates appearing before authority in Ireland on the that they apparently failed to hold themselves out as them. issue, I believe that practising be aware of the existence of competent to practise in a Lord Justice Brooke noted lawyers here should subscribe that authority. Lord Justice particular field to keep that the system of justice had or have access to a compre- Buxton also said that in the themselves up to date with always been dependent on the hensive series of law reports. case in question a Court of recent authority in that field. quality of assistance that Failure on the part of a Appeal transcript was stated to By ‘recent authority’, he stated advocates give to the bench. solicitor or barrister who holds be attached to the appellant’s he was not necessarily referring He noted that it was one of the himself out to be competent in papers. In fact, it was not. Lord to authority which was only to reasons why, in contrast to a particular field of law to read Justice Buxton stated that it was be found in specialist reports, systems of justice in other the law reports and keep not satisfactory to refer to a but authority which had been countries, English judges were abreast of relevant authorities reported case by means of a reported in the general law almost invariably in a position could have serious professional transcript. The purpose of reports. If a solicitors’ firm or to give judgment at the end of consequences. G cases being reported was, barristers’ chambers only took a straight-forward hearing among other things, to help the one set of the general reports, without having to do their own Dr Eamonn Hall is the company court and the advocates by they should have systems in research or without the state solicitor of Eircom plc. Should solicitors give it a spin?

Garrett Fennell examines the increasing role of lobbyists and public affairs consultants, and asks whether solicitors have what it takes to become spin doctors

et again the whole area of former Fine Gael councillor. In assets and the liberalisation of Ypolitical lobbying has been recent years, the ranks of the former state utilities have brought into focus by contro- lobbyists and public affairs produced a need for advice on versy. The recent revelations by consultants have swollen to transactions with a highly PR man Frank Dunlop to the include former journalists, political dimension. The Flood Tribunal have height- former politicians, numerous Freedom of Information Act has ened awareness of the ever- government press secretaries, also played an important role in increasing band of professional ex-government advisors and at ensuring that there is advisors engaged in lobbying or least one solicitor (myself!). At transparency in political public affairs activities. last count, there were at least decision-making. Ministers In Ireland, political lobbying ten firms in Dublin providing a must consider political is in its infancy. While there is dedicated public affairs service decisions in the context of the a long tradition of effective to clients, while many public advice they receive from their lobbying by representative relations firms also offer that officials and now most of this groups for farmers, unions and service. Garrett Fennell: the government advice can be obtained under teachers, professional political There are a number of will soon regulate political lobbying the Freedom of Information Act. lobbyists emerged here only in reasons for this rapid growth. Business people can see the the late 1980s. The arrival of multinational on issues affecting business and factors that influence a key The first professional companies accustomed to interest groups – which is decision and frequently wish to political lobbyists were receiving professional public largely attributable to exercise their own influence. probably Brendan Halligan, the affairs advice certainly created membership of the EU – also It is important to former Labour Party TD and an immediate demand. The acted as a catalyst. In recent distinguish between lobbyists MEP, and Myles Tierney, a increase in legislative activity years, the privatisation of state and public affairs advisors. The

9 Law Society Gazette May 2000 Introducing… ‘Unlimited’ Access

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Pricing related to number of Solicitors in each firm: (from as little as £100 per month + vat for Sole Practitioners) £295.00+vat ONCE ONLY SIGN-UP FEE (including access and 1 training place) TO GET CONNECTED Tel: Dublin 6717035 or Belfast 90247007 Email: [email protected] or [email protected] Viewpoint terms are used interchangeably, least $1 million in income. but signify quite different Many of these firms had a small approaches to political handful of employees, others lobbying. A lobbyist usually were Washington outposts of acts as an advocate or political national law firms. spin-doctor for a client. They PriceWaterhouseCoopers made interact directly with a jump from a combined 42nd politicians on their clients’ place in 1997 to 11th place in behalf, pressing flesh and 1998, with a fee income of bending ears. This would $6.5m for lobbying. The probably accord with what leading political lobbying firm, most people believe political Cassidy & Associates, had a fee lobbying is all about. income of nearly $20m in 1998. A public affairs advisor or Clearly, lobbying in consultant acts more as an Washington is big business. advisor to a client, with the There is much that is wrong client maintaining the direct with the US system of political relationship with the politician. lobbying, but the involvement Put simply, a public affairs of law firms is something that consultant acts as a political Would you buy a used point of view from a spin doctor? Irish law firms should note advisor to a client, in much the with interest. As multi- same way as a client has access disciplinary practices emerge to to other specialist advisors to professional expertise to who has visited the US can challenge the traditional assist on other business issues. support a client’s case confirm, lawyers dominate the demarcation between the Ty pically, a public affairs •preparing briefings and political lobbying industry professions, the provision of consultant’s activities on behalf correspondence on issues of there. Large law firms have professional services is of a client will include: concern, and dedicated departments increasingly likely to be • monitoring the proceedings •providing an external and advising clients on how to dictated by client expectations. of the Oireachtas, reviewing objective perspective on conduct their relations with Clients will expect certain the order papers and political issues likely to government. In the UK, there services and it will not matter highlighting individual impact on a client’s business are indications that some of who provides them, as long as debates or parliamentary activities. the larger law firms are they are delivered expertly, on questions of concern to starting to develop public time and at a reasonable cost. clients There is no doubt that the affairs practices to meet In the absence of continued •reviewing proposed government will move to clients’ needs. controversy about political legislative developments to regulate political lobbying over As the practice of law lobbying, perhaps some Irish assess their impact on a the next few months. There is a changes, both due to the law firms will assess the benefit client’s business or sector need for regulation of this encroachment of other of providing public affairs • where appropriate, sector in the light of recent professions into areas services to clients. One thing is suggesting and preparing controversies over the activities traditionally reserved for sure: if they don’t, there will be draft amendments to of lobbyists and public affairs solicitors and as a result of other professions willing and legislation for a client to consultants. Inevitably, a international competition, able to jump into that gap! G submit to government or the register of lobbyists and public solicitors must look for ways to opposition affairs advisors will be innovate and develop practices Garrett Fennell is a Dublin-based • researching and drafting introduced and a code of ethics to anticipate clients’ needs. In public affairs consultant. He submissions for a client to will be produced. These are all the US, it is noticeable that qualified as a solicitor in 1992 and lodge with a government positive developments. accountancy practices are practised with McCann department on an issue of There are doubtless some increasingly involved in FitzGerald until 1996, when he exceptional concern or similarities between the providing political lobbying left to join the ESB as a public interest activities of public affairs services to clients. In 1998, affairs advisor. He has since • where necessary, identifying consultants and the work of there were 117 lobbying firms established his own consultancy and engaging additional practising solicitors. As anyone in Washington that reported at practice.

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The new chief justice, Ronan Keane, has been in office just a little over three months. In his first-ever press interview, he tells Conal O’Boyle about his plans for the Supreme Court and why solicitors had better brush up on their debating skills if they want to make it to the top

he most senior judge to ordinary life, they now know that’s not so. in this country seems ‘But on the other hand, it means that judges to be a man of deciding cases are under a good deal more pressure contradictions: a than they were before. Instead of people doing the T traditionalist in many sensible thing and waiting to see what the courts respects – a staunch defender of wigs and gowns, decide, there are waves of speculation about how for example, and no supporter of a unified legal they think a case should be decided – which of course profession – he is considering a number of judges withstand. But it doesn’t make it any easier for innovations that might help the Supreme Court work a judge, knowing that sometimes an ill-informed more efficiently and effectively. He is also the first public thinks there should be a particular result and chief justice to speak frankly to the press about his that he may be deluged with criticism when the plans. verdict comes out. Judges are not children, and they ‘I don’t believe we can sit in ivory towers’, says know that’s part of the job and they get on with it. Ronan Keane. ‘It doesn’t do judges any good and it But it’s a pressure that perhaps they shouldn’t be doesn’t benefit the public’. subjected to’. In recent times, it could be argued that the judiciary has been living more in glass houses than No benchmarks ivory towers, with judges coming in for some stinging Keane knows a little bit about pressure himself public criticism from commentators as a result of one because when he was appointed to the High or two high-profile events. While the chief justice is Court bench in 1979 there was no such understandably reluctant to discuss the specifics of thing as judicial training or ‘judicial these, would he accept that the judiciary’s reputation studies’, as they prefer to style it. has been tarnished by recent controversies? ‘You had to undertake areas of ‘No, I don’t think so’, he says. ‘In fact, I take quite work which you would never a strong view about this. It’s been said that various have done in practice’, he institutions in the state have been seriously damaged recalls. ‘We all dealt with in the public mind. I don’t think the judiciary has the situation by talking to been damaged, but we can’t afford to be complacent senior colleagues who did either. My predecessor appointed a committee to have the requisite consider the whole area of judicial conduct and ethics. experience’. It has done a great deal of work already and will be These days a judge’s reporting to the government later in the year. lot is a much more ‘Nowadays, judges are subjected to much more happy one. With the intense publicity and scrutiny than they ever were in establishment in 1996 of the past. They have the spotlight of media attention the Judicial Studies on them morning, noon and night. That’s a fact of life Institute, a form of that we have to accept. In one sense that can be good, continuing legal in that it demystifies the process. If ever people education is now thought that judges were remote, with no connection available to the judiciary.

12 Law Society Gazette May 2000 Cover story nse of justice

‘We don’t like the expression judicial training, Appointments Advisory Board, the Courts Service although that’s the one used in the act’, says Keane, Board, the Superior Courts Rules Committee and who, as chief justice, chairs the institute. ‘We take is treasurer of the King’s Inns – all this in addition judicial studies seriously, and not simply for to the ever-increasing workload faced by the incoming judges but also for judges who have been Supreme Court. in place for quite a long time but who ‘I knew that the role of chief justice carried all really do need to keep abreast of these additional responsibilities’, he says. ‘It was only developments in the law’. really when I took up the job that I realised how There are regular weekend extensive they are. Of course, I’ve had great support seminars for all levels of the from my colleagues on the court and I expect it will judiciary, with talks from get a little easier as I get more used to it’. outside experts such as Life should also get a little easier for those who psychologists, prison hope to get a hearing before the Supreme Court. governors, doctors, social The backlog of cases that had clogged up its list has workers and economists. been whittled down to more manageable levels, ‘Some of the judges were thanks in no small part to the energy with which it resistant to this initially’, was tackled by Keane’s predecessor, Liam notes Keane, ‘but now they Hamilton. It now looks possible to guarantee the actually look forward to hearing of an appeal within a relatively short time. them. It’s got such a good ‘As far as I know’, says Keane, ‘every case that is reception and people are getting ready to go on – where the books of appeal are so used to the idea now that I lodged and there’s a certificate of readiness – will be think we can see it expanding heard by the end of this year’. considerably’. Apart from chairing the Judges on tour Judicial Studies The efficiency with which the court has tackled the Institute, he also backlog means that the new chief justice will be chairs the able to implement one of his pet projects later in Judicial the year. He wants to revive the now-moribund practice of sending Supreme Court judges out on circuit around the country to hear appeals. It’s probably been ten years or more since the court felt able to release one of its members in such a fashion. ‘There are two advantages to it’, he explains. ‘First, it enables Supreme Court judges to keep in touch with what is actually going on “out there”, from which we’re naturally isolated. Second, Supreme Court work is exacting and somewhat lacking in variety for people who, as High Court judges, were used to hearing a wide range of cases’. None of them would complain for a moment about it, he adds, because they knew what they signed up for when they took the job, but the public is sure to benefit from a re-invigorated and in-touch Supreme Court. The president of the High Court must also be

13 Cover story

delighted because it should ease the pressure of work that has built up, not least as a result of regularly losing so many of his judges to tribunals. He may soon be pressing for two roving justices. Keane is also looking at how to reduce the length of time that cases take in the Supreme Court, but admits that this is ground on which he will have to tread warily, at least initially. ‘We really have to consider ways of processing cases more expeditiously, while at the same time making sure that they’re dealt with properly and justly, because you can never sacrifice justice to efficiency and expedition. But that doesn’t absolve us from seeing whether we can do it more efficiently. And that inevitably raises the vexed question of time limits on oral submissions’. He cites the example of the United States Supreme Court, which limits oral presentations to half an hour, no matter how enormous the case, but says that this is not necessarily the appropriate approach in this country. ‘The US Supreme Court presides over an entire continent. It filters all its cases, which we most certainly cannot and do not do. And it exercises a very strict selectivity in the cases which it is satisfied should be dealt with’.

You don’t have to put on a red light In Canada, another federal jurisdiction, they allow one hour a side, while the European courts allow 30 minutes before the red light comes on. ‘I’m not saying that any of those is necessarily the model to be followed; still less would I be thinking at this stage of specific time limits. It’s a matter on which you would have to feel your way. As matters stand now, we do on occasion say at a certain stage in a case, “we understand the submissions, we understand the points of law, we think you can cover it in an hour”. That would have been unheard of before and it’s not infrequent now. ‘I think we could move from that to some tighter time limit. It’s something that – apart from obviously consulting all the members of the court first – one would very much want to consult the bar and the solicitors’ profession about, and I anticipate that there would be some resistance’. He also believes that proper case management could help to make litigation quicker and cheaper, and suggests that modern judges may give more leeway to long-winded counsel because of their

CHIEF JUSTICE RONAN KEANE Born: 1932 1996: appointed to Supreme Court Educated: Blackrock College, Dublin; University 2000: appointed chief justice of the Supreme College Dublin; King’s Inns Court 1954: called to the bar Publications include: Law of local government in 1970: called to inner bar the Republic of Ireland, Walsh’s planning and 1979: appointed to High Court bench development law (2nd edition), Company law in 1981: chaired Stardust Inquiry the Republic of Ireland, Equity and the law of 1987-92: chairman of Law Reform Commission trusts in the Republic of Ireland

14 Law Society Gazette May 2000 Cover story own experiences of appearing before difficult and interventionist judges a generation before. THE CHIEF JUSTICE ON … ‘I think we all started off our judicial careers saying, “the thing to do in this job is to sit back and JUDGES IN THE MEDIA SPOTLIGHT listen to the case and never interrupt”. That’s going ‘It doesn’t make it any easier for a judge, to one extreme; now, it’s a more desirable extreme knowing that sometimes an ill-informed public than constant interventions, but I don’t think either thinks there should be a particular result and extreme is right. I think judges really must take that he may be deluged with criticism when control of cases. the verdict comes out’. ‘I’m not trying to trespass on the president of the High Court’s domain – he’s well aware of all this – SPEEDING UP SUPREME COURT HEARINGS but judges should know more about the case; they ‘We really have to consider ways of processing shouldn’t just be in a position of coming onto the cases more expeditiously, while at the same bench and saying “what’s this all about?” It should time making sure that they’re dealt with certainly be possible to have preliminary conferences properly and justly … And that inevitably with the judge and counsel. This is all case raises the vexed question of time limits on management, of course, and it really must come. oral submissions’. The Working Group on a Courts Commission under Judge Denham has pointed the way forward BETTER CASE MANAGEMENT in this area, and it is now a matter for the Courts ‘Judges should know more about the case; Service to ensure that it happens at every level. they shouldn’t just be in a position of coming ‘But everybody has a part to play – judges, onto the bench and saying “what’s this all counsel, solicitors, expert witnesses. Everybody’s about?”’ aware that litigation is far too long, expensive and cumbersome. It’s something where everybody has to COURT DRESS contribute to the solution, not just one body’. ‘It’s always struck me as odd that nobody finds it in the least bit peculiar that people are If you want to get ahead, get a hat dressed the same way in the army, in the A speedier, cheaper litigation system? It sounds too police or in hospitals. I’m sure doctors and good to be true. But if Ronan Keane does manage to surgeons wear white coats not simply pull it off, he may leave his mark as one of the great because it’s hygienic but because it shows chief justices, certainly as far as a sceptical public is that they are doctors’. concerned. So why not go one step further in the cause of demystifying the legal system: what about those wigs and gowns? to make very little use of it. While it may be bad ‘Frankly, I think the wigs matter is somewhat form to ask the most senior member of the judiciary peripheral because the essential thing is that the about his successors, a whole profession wants to courts carry out their very important tasks with a know: is there any chance we’ll see a solicitor chief degree of formality. That is important. It’s important justice one day? that people have respect for the courts, and that ‘I don’t see why not. I think the day is long past respect is not increased by undue informality. Most when any sensible barrister regards himself as countries I’ve been to accept that. belonging to a superior profession. Both perform an ‘The wig has this advantage: it gives anonymity to essential function from the public’s point of view. the officers of the court. It means that they tend to They’re specialist branches of a very important look the same to the onlooker, and that’s as it should profession. I’ve never had any sympathy with the be, because they’re simply ministers of justice and view that the professions should be merged. Of one should try to keep the personal element out of it course, they should co-operate more than they used as far as possible. It’s always struck me as odd that to in the past, and they are co-operating. But I’m nobody finds it in the least bit peculiar that people sure that both the Oireachtas and the Judicial are dressed the same way in the army, in the police Appointments Advisory Board will always bear in or in hospitals. I’m sure doctors and surgeons wear mind that, in appointing people to the courts, white coats not simply because it’s hygienic but experience of court work is very important. I think because it shows that they are doctors. I’ve always that solicitors would acknowledge that. After all, thought it was a totally overblown issue. There are they can sometimes spend their lives with very little more important things to worry about. Obviously, experience of court work. since the law was changed, barristers are entitled to ‘Solicitors have obtained the right of audience in all wear wigs or not in court, as they choose, and we the courts but make use of it very little in the superior must respect their right to appear unwigged if they courts, it has to be said. Of course, that’s counter- want to’. productive from the point of view of their being Wigged or unwigged, solicitors now have the appointed to the bench, at least at High Court level. right of audience in every court in the land, ‘But it’s obvious that they’re going to play a greater although, as the chief justice points out, they seem part as judges. So who knows in time?’ G

15 Law Society Gazette May 2000 Media law A step too fa Reporting restrictions on the Nevin case

During the recent Catherine Nevin murder trial, Ms Justice Mella Carroll made certain orders restricting press coverage of the case. Simon McAleese argues that her restrictions were excessive and incorrect

s Justice Mella Carroll, In the absence of the jury (and consequently unreported by the media), heard extensive arguments from Mrs Nevin’s Mlegal team about press publicity, both pre-trial and while the case was being heard. While the judge held that the publicity did not give rise to a real risk of an unfair trial, she nevertheless made certain orders restricting press coverage.

Pre-trial publicity Mrs Nevin’s lawyers alleged that there had been a garda plot which had been designed to prevent Mrs Nevin successfully defending herself. It was argued that the gardai had consistently leaked to the press details of progress which they were making in their on-going investigation of the crime. It was alleged that these leaks were purposely designed to ensure that the media portrayed Catherine Nevin in such a fashion that her conviction would be inevitable. Patrick Mr McEntee’s objections to press coverage of the McEntee SC argued on behalf of his client that the first trial related to material which he argued fell pre-trial press publicity which had resulted from this outside the usual contemporaneous reporting of the alleged plot had caused detrimental injury to his case. He objected to what are known as ‘colour client’s chances of successfully defending herself. He pieces’, articles which attempt to paint a written argued that Mrs Nevin had been prejudiced to such an picture of the scene inside the courtroom and to extent that the prosecution should be permanently portray the appearance, character, demeanour and stayed. However, Carroll J rejected this argument. attitude of the main players in the unfolding drama. In particular, he objected to press comment on what Publicity during the trial Mrs Nevin was wearing, her hair style, her jewellery, By way of secondary argument, Mr McEntee claimed her manicured and carefully-painted fingernails, her that the press reporting of the first trial1 had been so demeanour in court and her reading matter while prejudicial in nature that, at the very least, the waiting for court to resume. Certain colour pieces proceedings against Mrs Nevin should be stayed for a published by the Evening Herald and the Irish number of months so as to allow the allegedly Independent were singled out as amounting to a prejudicial publicity to fade from the minds of the systematic attempt to dehumanise and demonise Mrs public and most particularly from the minds of Nevin. Mr Peter Charleton SC, who was potential jurors. prosecuting the case, argued that what Mr McEntee

16 Law Society Gazette May 2000 Media law far?

death of a man to determine whether his wife, Mrs Nevin, the accused, is guilty of his murder’. She considered in some detail the case law relevant to publication of prejudicial publicity, before concluding that: ‘I do not believe that there has been such publicity that there is a real or serious risk that Mrs Nevin would not get a fair trial which could not be avoided by appropriate rulings and directives. The publicity has been distasteful and discourteous but I do not subscribe to the view that she has been deliberately demonised. It is rather a pandering to the insatiable appetite of some of the media for details about Mrs Nevin, at times cruel, at times titillating, and always intrusive’. Notwithstanding her finding that there was no real

PUBLICITY AND THE CONSTITUTION Carroll J, in Attorney General for England and Wales v Brandon Book Publishers Limited ([1986] IR 597), pointed out that: ‘Any consideration of the question of preventing publication of material of public interest must be viewed in the light of the constitution’. It is as well to consider the constitutional provisions governing the issues in question: •article 34.1 provides that: ‘Justice shall be administered in courts established by law by judges appointed in the manner provided by this constitution and, save in such special and limited cases as may be prescribed by law, shall be administered in public’ •article 38.1 provides that: ‘No person shall be characterised as an effort to demonise Mrs Nevin tried on any criminal charge save in due • Ms Justice was in reality nothing more than comment on her course of law’ Carroll decided clothing and demeanour which was distasteful, •article 40.6.1 provides that the state some news- discourteous, nonsense and speculation. Mr guarantees the rights of citizens to express paper publicity McEntee argued that descriptions of Mrs Nevin’s freely their convictions and opinions (subject of the trial was painted fingernails were designed to symbolise talons to certain limited restrictions). In the Brandon distasteful, dripping with blood. Books case, Carroll J indicated that this article but wouldn’t implied a constitutional right to publish Carroll J found that the colour pieces, particularly jeopardise the information in the Evening Herald but to a lesser extent in the Irish fairness of the •article 40.3.1 stipulates that: ‘The state trial Independent, were: ‘the worst kind of tabloid guarantees in its laws to respect and, as far • Nonetheless, journalism, designed solely to sell newspapers without as practicable, by its laws to defend and restrictions any regard to Mrs Nevin’s dignity as a human person vindicate the personal rights of the citizen’. were imposed ... and all of this to feed an insatiable public curiosity This article of the constitution has been held not just on the for detail upon detail of what kind of person Mrs offending to guarantee certain unenumerated Nevin is. The theme which emerged of a fictional newspapers, constitutional rights, including the right to character or plot from an airport novel is a but all print communicate and the right to fairness of media trivialisation of what is the most serious exercise being procedures. carried out in this court, consequent on the violent MAIN POINTS

17 Law Society Gazette May 2000

Media law

to the restrictions imposed, relay contemporaneous, HIERARCHY OF CONSTITUTIONAL RIGHTS accurate and straightforward court reports to their It is well established that there is a hierarchy of constitutional rights readership. (People v Shaw [1982] IR 1). Where there are competing rights, the court The most unusual aspect of the order made by Mrs should strive to give a mutually harmonious application of those rights. If Justice Carroll in the Nevin case was her implicit that is not possible, the hierarchy of rights should be considered both as acceptance of the fact that the colour pieces which between the conflicting rights and the general welfare of society. In other had been complained about had not caused prejudice words, the courts have to strike a balance between conflicting to Mrs Nevin’s chances of successfully defending constitutional rights, taking into account all of the surrounding herself; rather, they were ‘an unwarranted intrusion circumstances. on Mrs Nevin’s privacy and an insult to her dignity as If there is a real risk that the accused would not receive a fair trial, then a person. She comes before the court presumed there would be no question of the accused’s right to a fair trial being innocent to face a charge of murder, which is a most balanced detrimentally against the community’s right to have alleged serious charge. She is entitled to be treated with crimes prosecuted (D v DPP [1994] 2 IR 465). This doctrine has been respect and not to be put under additional strain’. held to apply with equal force to the media’s right to publish and the The judge indicated that her order was ‘calculated to public’s right to know and be informed (Irish Times and Others v Ireland reduce the risk of an unfair trial by curbing the [1998] IR 359). A ‘real risk’ has been defined (in Z v DPP) as meaning the licence taken by some journalists to comment on risk of an unfair trial ‘... which cannot be avoided by appropriate rulings every aspect of [Mrs Nevin’s] appearance and and directions on the part of the trial judge’. demeanour’. She also issued a direction to the jury that they should not read newspaper reports of the case and should confine their deliberations to the risk of an unfair trial, the judge then made an order evidence which they had heard in court. that until the conclusion of the trial there should be The judge was walking a constitutional tightrope. no further comment by any of the print media on Mrs She was anxious to ensure fairness of procedures Nevin’s appearance and demeanour. Nor would the (article 40.3.1) and fairness of trial (article 38.1) for press be allowed publish any photograph or the accused, but at the same time felt that it was representation of Mrs Nevin: ‘She is entitled to wear necessary to trespass on the constitutional rights of what she likes to court without being dissected. Her newspapers to communicate with their readers and to demeanour in court is a matter for the jury to observe publish information (articles 40.3 and 40.6.1). without being told by reporters how to interpret it’. Having accepted that the press coverage had not Judge Carroll indicated that she was satisfied that, amounted to contempt of court, Carroll J essentially as part of her constitutional duty to ensure a fair trial, made an order of a quia timet nature which had the she had the power to make such an order. The order net effect of editing future press coverage of the trial. was to extend to all of the print media and, by This is an entirely new type of order and certainly implication, all press Internet websites. As the judge not one which had been envisaged by the earlier case pointed out: ‘Even the Irish Times, which was not the law, which was mostly confined to prejudicial pre-trial worst offender, commented on her facial expression, publicity. The order creates an unusual and her clothing, her jewellery and her hairstyle’. dangerous precedent. Similar orders at all court levels Many newspapers about which no complaints had will probably follow in early course. Many members been made were adversely affected by the order. But of the judiciary have not been slow to impose it did not affect the radio/television/electronic media reporting restrictions in dubious circumstances. who were entitled to continue publishing photographs of Mrs Nevin for the duration of the European convention on human rights trial and also to comment upon her appearance and In Murphy v IRTC ([1997] 2 ILRM 467), Geoghegan demeanour in court. J stated that: ‘Although the European convention on To be fair to Mrs Justice Carroll, she made her human rights is not part of Irish municipal law, regard order after very patiently hearing extensive can and should be had to its provisions when Simon McAleese: judge walking a constitutional submissions about the constitutional rights of the considering the nature of a fundamental right and tightrope accused and the obligation of the courts to protect perhaps more particularly the reasonable limitations such rights. She was at pains to point out that, in the which can be placed on the exercise of that right’. hierarchy of constitutional rights, Mrs Nevin’s right Geoghegan J then proceeded to consider case law to a fair trial far outweighed the rights of the media of the European Court of Human Rights relevant to to publish the details which had been restricted. broadcasting restrictions. He did so for the purpose Implicitly referring to the guidelines set out by the of ascertaining restrictions which could be placed on Supreme Court in Z v DPP ([1994] 2 IR 476), she the applicant’s constitutional rights. The Murphy case concluded that the trial could proceed without risk of was ultimately appealed to the Supreme Court unfairness as a result of the restrictions which she had ([1999] 1 IR 12), which upheld Geoghegan J’s imposed. decision at first instance. The order was unusual: both the press and the The similarities between article 40.6.1 of the public were free to attend her court; she emphasised constitution and article 10 of the European convention that she was not prohibiting contemporaneous on human rights were considered by the Supreme reporting of the proceedings. The press could, subject Court in Irish Times and Others v Ireland ([1998] 1

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IR). Barrington J compared article 40.6.1 of the 1937 B succeeded in obtaining the injunction orders constitution with article 10 of the European convention pursuant to Austrian copyright law on the basis that on human rights (which deals with freedom of photographs published by the newspaper were, in an expression). He noted that there were significant initial edition of the paper, accompanied by text which similarities as well as important differences: was prejudicial to B’s chances of obtaining a fair trial. ‘A constitutional right which protected the right to However, the order made by the Vienna Court of comment on the news but not the right to report it Appeal (and affirmed by the Austrian Supreme Court) would appear to me to be a nonsense. Therefore, it imposed a blanket prohibition on the newspaper, appears to me that the right of the citizens “to express preventing future publication of B’s photograph, freely their convictions and opinions” guaranteed by irrespective of whether or not the accompanying text article 40 of the constitution is a right to communicate would be prejudicial to the criminal trial. facts as well as a right to comment on them. It appears The European Court of Human Rights found that to me also that when the European convention on human the Austrian courts had restricted the newspaper’s rights states that the right to freedom of expression is to choice as to the presentation of its news reports. include “freedom ... to receive and impart information”, Other media were free to continue publishing B’s it is merely making explicit something which is already photograph throughout the course of the criminal implicit in article 40.6.1 of our constitution’. proceedings. Having regard to these circumstances It is notable that the convention has been and to the admitted fact that it was not the incorporated into British law as the Human Rights Act photographs used by the applicant company but only 1998 which will be brought fully into force in the UK their combination with a prejudicial text that on 2 October this year. This is monumental legislation: interfered with B’s rights, the European Court found it provides that all existing and future UK legislation that the absolute prohibition of the publication of B’s will, so far as possible, have to be read and given effect photograph went further than was necessary to protect in a way which is compatible with the rights guaranteed B’s rights. The newspaper should not have been by the convention. Where it is not possible to read and injuncted from publishing photographs of B in give effect to primary legislation in this way, the courts circumstances where such photographs were will be empowered to grant a declaration that a accompanied by non-prejudicial text. Accordingly, statutory provision is incompatible with a convention there had been a violation of article 10 of the European right. It is expected that similar legislation will be convention on human rights. introduced here in the very near future. When the Austrian case is compared to the Nevin A recent decision of the European Court of Human case, it is notable that the initial publication by the Rights is directly relevant to the issues which arose in Austrian newspaper contained material which was the Nevin case. The case is News Verlags GMBH v highly prejudicial to the presumption of B’s Austria (judgment handed down in Strasbourg, 11 innocence; in the Nevin case, however, the material January 2000). That case concerned a decision of the which had been published was merely deemed Vienna Court of Appeal. The Vienna court had issued distasteful, an intrusion upon Mrs Nevin’s privacy and injunction orders prohibiting the applicant an insult to her dignity as a person. It is somewhat company’s newspaper from publishing ironic in those circumstances that the restrictions photographs of B. This imposed in the Nevin case went further than those individual was well imposed by the Austrian court. It is difficult to see known for his neo- how the reporting restrictions imposed in the Nevin nazi affiliations and case could withstand a challenge in the European had been charged Court of Human Rights. with perpetrating Although well intentioned, Ms Justice Carroll’s letter-bomb offences. ruling in the Nevin case was excessive and incorrect. This is a personal opinion and I have done my best to mentally distance it from the fact that my office acts for the two newspapers that were most severely criticised by the judge. G

Simon McAleese is a partner with solicitors Matheson Ormsby Prentice.

Footnote 1 The first trial was aborted due to information that the deliberations in the jury room could be heard by people present in the public gallery of the court. The second trial had barely got off the ground (no evidence had been heard) when a juror fell ill; that trial was aborted in favour of a third trial which followed very shortly thereafter.

21 Law Society Gazette May 2000 BARRISTER or SOLICITOR required for the position of PROFESSIONAL OFFICER GRADE IV in the office of the Director of Public Prosecutions

he Office of the Director of Public Prosecutions was established in 1974. The Director is responsible for prosecuting Tvirtually all cases on indictment and has charge of all other cases brought by the Garda Síochána in his name. The successful candidate will direct prosecutions on files submitted to the Office by the Garda Síochána and other investiga- tion agencies and will also advise those investigation agencies. He or she will also direct in relation to judicial review cases arising from criminal proceedings and may be called upon to generate ideas based on experience for the reform of the crimi- nal law and its procedures. He or she will also be expected to attend criminal law conferences in this jurisdiction and abroad. Applicants must have practised as a Barrister or as a Solicitor in the State for at least four years. (Experience in certain whole- time legal positions in the Civil Service may reckon for this purpose). Salary scale: £34,857 - £44,794 Closing date: 18 May 2000 Applications must be made on the official application form. No application forms will issue by post on foot of requests received on the closing date. Cuirfear fáilte roimh chomhfhreagras i nGaeilge.

Send off for details now to: THE OFFICE OF THE CIVIL SERVICE & LOCAL APPOINTMENTS COMMISSIONERS 1 Lower Grand Canal Street, Dublin 2. Tel: (01) 6615611 LoCall: 1890 449999 Details also available on our website www.irlgov.ie/csclac The Civil Service Commissioners are committed to a policy of equal opportunity.

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New rules dealing with District Court discovery orders should make life a little easier for practitioners and their clients, writes Patrick Mullins

he District Court Rules Committee has with or without application, to make an order for the adopted new rules dealing with District production of documents on oath (order 46A, rule 3). Court discovery orders. The new rules, The affidavit of discovery must list the documents contained in the District Court (Discovery to be produced and also what objections have been T of Documents) Rules, 1998 (SI no 285 of made by the party on whom the order is to be served. 1999), govern the application for and making of When an affidavit of discovery is served on the orders for discovery in civil actions. They also set out applicant, the applicant may serve a notice to produce the penalties applying to parties who default in on the deponent’s solicitors, requesting inspection of relation to a discovery order. The rules became law any of the documents listed in the affidavit of on 27 September 1999 and introduce a new order discovery (except those over which privilege or some 46A to the District Court Rules 1997. objection to production is being maintained). The The order allows any party to civil proceedings to applicant is entitled to take copies of the documents apply to the court by way of notice of motion, served on inspection. at least four clear days before the hearing of the The judge may refuse to allow any document to be application, for a discovery order against any other allowed into evidence if it has not been produced to party to the proceedings. The latter must then make the applicant for discovery after due notice has been discovery on oath of the documents in their served. Once a notice to produce has been served, the possession, power or procurement relating to any recipient has four days to tell the party seeking matter in question in the proceedings. inspection of a time (within three more days) when The court may make a general order for discovery these documents may be inspected (order 46A, rule 8). or an order limited to specified documents or classes of documents. It may also make an order for security Costs of discovery of costs. Obviously, the court may refuse to make an In every case, the costs of discovery will be allowed order on the grounds that discovery is not necessary as part of the costs of the party seeking discovery, (order 46A, rule 1). either as between party and party or solicitor and The application must be preceded by a letter client, only where this discovery has been certified requesting voluntary discovery and allowing the by the court as being reasonably requested. These respondent 21 days to comply. The respondent must costs will not be less than £150 plus VAT (order 46A, refuse or fail to make discovery by the end of the 21- rule 11). day notice period. The court may waive the notice However, the rules do not deal with the issue of requirement with the consent of both parties or in an third-party discovery against people or companies emergency (order 46A, rule 2). It also has the power, who are not a party to the proceedings. Nor do they deal with the issue of discovery against a party who has been joined in the proceedings as a third party FAILURE TO COMPLY WITH AN ORDER FOR by the defendant. Further, the rules do not provide DISCOVERY MAY LEAD TO: for an appeal against the grant or refusal of an order • an order for attachment for discovery. • an order dismissing the claim for want of prosecution (where an order Nevertheless, the new rules are welcome and for discovery has been made against the plaintiff), or should make it easier to air issues properly in the • an order striking out the notice of intention to defend, where an order District Court. But it would also be a good idea if for discovery has been made against the defendant. rules were also introduced to permit the raising of a notice for particulars in the District Court, similar to Furthermore, a party failing to make discovery will be liable to an order the provisions in the Circuit Court Rules. G for costs of not less than £150 plus VAT or any greater sum that the court thinks fit (order 46A, rule 9). Patrick Mullins is a partner in the Co Cork solicitors’ firm Dillon Mullins and Company.

23 Law Society Gazette May 2000 ★ ★ ★ ★ ★ ★ ★ ★ ★ ★ ★ ★ The European Commission Representation in Ireland requires the services of a LAWYER (Barrister or Solicitor) to provide clear, concise and accurate information and assistance to persons confronted with problems of interpretation of the law of the European Union. He or she will be expected to reply to enquiries from members of the public and may be required to take part in radio and / or television programmes. The person appointed should be in a position to carry out the duties outlined above outside Dublin where necessary. The services of the person will be required for 100 days per annum.

Applications should be accompanied by the following documentation: • Name (or corporate name), address, telephone and fax numbers • Detailed Curriculum Vitae + copies of testimonials/references • VAT registration number • Certificate less than 90 days old to the effect that the applicant has fulfilled his fiscal and social security obligations • Proof of having graduated in law or being a licensed lawyer • Proof of knowledge of Irish law • Proof of knowledge of Community law • Proof of at least 3 years’ work experience in the field of European Community or related law • Proof of linguistic ability when carrying out the work in question: perfect knowledge of English, knowledge of Irish.

Should the tenderer be a legal entity, all the above documents must be provided for the proposed person responsible for carrying out the work.

In addition, legal entities should enclose : • Names and functions of the members of the management • Articles of association • Registration extract from the commercial register • Accurate documents indicating the applicant’s financial position : annual balance sheets and profit and lost accounts for the last three fiscal years

Applications should be submitted by registered mail, in a double envelope to Mr Peter Doyle, Director, European Commission Representation in Ireland, 18 Dawson Street, Dublin 2 no later than 31st May 2000 (postmark).

The inner envelope should contain the documents required, and should be marked “PR/2000-12/Dub - not to be opened by the mail service”. Curriculum development CDU: Time well spent?

Continuing its series of articles on the Law School’s syllabus for apprentices, the Curriculum Development Unit asks members for their views on whether the Law Society has got the balance right between the two courses

Subjects on professional he Curriculum Development Unit, practice course as part of its on-going examination TOTAL HOURS (COMBINING BOTH TIME-ALLOCATION of the Law School curriculum, LECTURES AND TUTORIALS) PERCENTAGE 1% would welcome the views of members on the current time 1% European law (10) 4% T 1% 11% allocation between subjects on the professional Human rights (4) Applied land law (75) practice course and the advanced course. Employment law (15) 3% This time allocation is represented in two Family law (10) 4% 28% ways: Capital taxation (75) • on a percentage basis, in a pie chart, and Civil litigation (25) Criminal litigation (11) 9% •on the basis of the total number of hours Applied company law (9) allocated to each subject, presented in a bar Interviewing (3.5) chart. Skills (3) Probate and administration 6% of estates (29) Your views would also be welcome on any sub- 28% 4% jects not already included in the curriculum. Please send any comments or suggestions to TP Kennedy, Director of Education, Law School, Law Society of Ireland, Blackhall Place, Subjects on advanced course Dublin 7, DX 79 Dublin, tel: 01 672 4800, fax: TIME-ALLOCATION PERCENTAGE 01 672 4803, e-mail: [email protected]. 39.5 Solicitor’s accounts (7%) 40 Financial management (5%) Capital taxation (14%) TOTAL HOURS Income & corporation tax (5%) 35 (COMBINING BOTH VAT (2%) LECTURES AND Professional conduct and ethics (2%) TUTORIALS) 30 Commercial law (18%) Insolvency (7%) 29

Administration of estates (6%) 25 Conveyancing (8%) Family law (7%) Employment law (1%) 20 Evidence and criminal law (2%) Advocacy (criminal and civil) (7%) 18 15 14.75 Costs (1%) 15 15 15 Trusts (1%) Negotiations (3%) 12 10 Management (5%) 1010 10

5 55 5 5.5 1.75 3 1.5 0 TOTAL HOURS PER SUBJECT

25 Law Society Gazette May 2000 Books Book reviews Takeovers and mergers law in Ireland Blanaid Clarke. Round Hall Sweet & Maxwell (1999), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-899738-98-3. Price: £100.

ver wondered what a reverse restrictions and disclosure European Court of Justice deci- book of a readership not only Ebear hug is? Takeovers and requirements during the course sions, she also considers a num- among takeover and merger spe- merger law in Ireland will provide of an offer. In relation to private ber of Australian, Canadian, cialists but also among commer- the answer. The publication of companies, the issues of pre-con- New Zealand and US decisions. cial lawyers generally. It will this book is timely, given the tractual negotiations, due dili- A minor quibble: although there make a worthwhile contribution enactment of the Irish Takeover gence, the contents of a sale are references in the text, among to a practitioner’s bookshelf, Panel Act, 1997 and the establish- agreement and completion are others, to the Taxes Consolidation which is no mean achievement ment of the panel in July of that examined. Act, 1997, the Finance Act , 1999 in this increasingly well-served year. Although the panel has been Part 5 deals with management and the Stamp Act 1891, these niche of the market. Whether given wide powers to regulate buy-outs and includes a discus- references are not reflected in bears will read the book is takeover activity, the legislation sion of the Irish Association of the table of legislation. another matter ... G also provides for the right to Investment Management guide- Takeovers and mergers law in apply to the High Court for judi- lines, while part 6 is concerned Ireland manages to be both a Niall O’Hanlon is a practising cial review of a ruling or direction with the question of how to resist learned treatise and a work barrister and editor of the journal by the panel, or where the panel takeover bids. which is of use to practitioners. Irish business law (Blackhall exercises its disciplinary powers. Although concerned with the The discussion of issues relating Publishing). He is also a chartered These provisions alone will mean law in Ireland, the author refers to the acquisition of private accountant and an associate of the that the new statutory framework not only to Irish, UK and companies should assure the Institute of Taxation. will be a matter of professional interest for lawyers. The author, Blanaid Clarke, a lecturer in corporate finance law at post-graduate level in UCD, is Tuairiscí Éireann (The Irish reports): well placed to write on this topic: in addition to being a barrister, Tuairiscí speisialta, 1980-1998 she holds the degree of MBS (Banking and Finance). (Special reports, 1980-1998) The book is divided into six Arna chur in eagar ag Séamus Ó Tuathail BL,agus foilsithe ag Incorporated Council of Law Reporting parts. Part 1 introduces the sub- for Ireland, Áras Uí Dhálaigh (1999), Four Courts, Dublin 7. ISBN: 0-946738006-8. Price: £15. ject matter of the work and dis- cusses the economic rationale for he special reports 1980-1998, ered, among other things, the of the Irish language in law mergers and acquisitions. Part 2 Tpublished by the Law issue of mens rea, unconditional and makes some thought-pro- sets out the regulatory framework Reporting Council of Ireland, strict liability and the law relat- voking comments. and discusses in detail the Irish contain judgments of the High ing to a consultative case stated Molaim go mor an Takeover Panel, stock exchange and Supreme courts delivered from the Circuit Court to the foilseachán seo. G regulations and competition law, in the Irish language with full Supreme Court. at both the European and domes- English translations. Edited by Judge Ruairi Ó Hanlon has Dr Eamonn Hall is company tic level. The Draft 13th company barrister Séamus Ó Tuathail, written a preface on the status solicitor of Eircom plc. law directive, in gestation since this volume also covers, in part, 1989, and the regulation of finan- the status of the Irish language cial institutions are also examined. and the rights and entitlements Parts 3 and 4 deal with the of Irish speakers. Economics of EC competiti acquisition of public and private Inevitably, these judgments, companies. The acquisition of a unreported to date, contain concepts, application and m business and the acquisition of matters of general law and Simon Bishop and Mike Walker. Round Hall Sweet & Maxwell (1999), shares of a company are discussed practice and procedure. For 43 Fitzwilliam Place, Dublin 2. ISBN: 0421-5794-4. Price: stg£95. separately and the transfer of example, in An tAire Poist agus undertakings regulations are Telegrafa v Cáit Bean Uí his book explains such eco- book which is comprehensible by examined in detail. The author Chadhain (Tuairiscí Éireann: The Tnomic concepts as relevant economists and lawyers alike. also discusses the procedural Irish reports: Tuairiscí speisialta: markets, elasticities, price corre- However, it is a specialised book requirements for the takeover of a Special reports, 1980-1998, 21, lation, price concentration, bid- which will not have a wide quoted company and the dealing 91), the Supreme Court consid- ding studies and so on. It is a appeal among Irish solicitors

26 Law Society Gazette May 2000 Books Lawyers on the spot Donna Leigh-Kile. Vision, Satin Publications (1998), 20 Queen Ann Street, London W1M 0AY. ISBN: 1-901250-06-7. Price: stg£11.25 (paperback).

he system at the top end is which they relate. Furthermore, clients may wish to be repre- their future effects. Leigh-Kile ‘Tfrankly out of control. We specialist work is also of such a sented by someone they have predicts that such reforms will have to get a grip on fees – oth- nature that it rarely involves liti- heard of, as one lawyer noted: ‘If bring an end to the legal profes- erwise the system ... will grind to gation. you become known as a rent-a- sion as we know it. The survival a halt’. Jack Straw’s famous John Jarvis QC is quoted as quote, or have a reputation for of the individual lawyer will words will be familiar to many. saying ‘my clients come to me your cases making headlines, depend on how swiftly he or she As with other attractive media because they want money or some clients who wish to maintain low is able to find a profitable spe- lines, it is often repeated faster commercial advantage and they profiles will not come to you ciality and a space in an already- than one can say ‘fat cat’ or ‘legal do not like it sometimes when and the judges and the lawyers overcrowded field. fees’. Another quote in the book I tell them that they cannot win. will lose respect for you’. Finally, the bar is seen as an refers to lawyers as being per- I am bound to spell out a client’s The book concludes with a endangered species. Already ceived somewhere below under- prospects but, should he insist on number of predictions. US firms many barristers are employed takers and used-car salesmen. going on with the case despite shall continue to expand, as will by law firms. The number of This paperback certainly lives what I have told him, I will say multi-disciplinary practices. solicitor-advocates is also up to its title. Throughout there things like: “I will fight for you Client service and marketing increasing. In Ireland, we can are many legitimate and some and give it my best shot. But strategies to get and maintain also point to the increase in less-legitimate misgivings about remember, you are the sort of clients will continue to play an solicitor-judges. G the legal profession. What makes person who pays my children’s important role. The reforms this book interesting is that the school fees. We love clients like undertaken by Jack Straw and Paul Lambert is a solicitor with author proceeds to outline these you”’. While such frankness may Lord Irvine are also flagged for the Dublin law firm LK Shields. criticisms by using the words of be uncommon, there is no doubt- those lawyers (many eminent) ing how the issue of fees can con- whom she has interviewed. tribute to the public perception The tax book ’99 Most sources are either UK or of the legal profession. US lawyers, but the topics dis- It is not uncommon now for Alan Moore. Taxworld Ltd (1999), 73 Bachelors Walk, Dublin 1. cussed will be equally interesting clients to shop around, change Volume 1 – ISBN: 1-902065-05-0; price: £62.50; volume 2 – to readers here. The three main firms or to retain more than one ISBN: 1-902065-06-9; price: £37.50. themes in the book are the vari- firm of solicitors. Clients are also he 1999 edition of The tax 1 also includes references to 2,131 ous problems with law and more willing to sue their lawyers Tbook, now in its third year of cases and 1,114 illustrative exam- lawyers generally, the changes and accountants. Lawyers must be publication and published, for ples, while volume 2, which is taking place in the legal profes- more commercially minded and the first time, in two volumes, somewhat less than half the size sion and the future for lawyers. service oriented. Team work and provides a section-by-section of volume 1 and will no doubt Predictably, the issue of fees is client developments skills are now explanation not only of income, expand in future editions, covers, canvassed a number of times. central aspects of most commer- corporation, and capital gains tax among other things, the Stamp Today, success is gauged by prof- cial and specialists firms. Many (volume 1) but also of capital Duties Consolidation Act, 1999. it. Some City lawyers can earn lawyers will also spend second- acquisitions tax, VAT and stamp In order to properly advise up to one million pounds a year. ments working with their clients. duties (volume 2). The Tax book clients in the field of taxation, a Large fees can often deter litiga- However, there are other and two companion volumes familiarity with the legislation is tion. The author does, however, forces at work. The squeeze is on which reproduce the text of the not of itself sufficient. The tax set out the counter-arguments. for the more traditional firm. Old legislation, Tax law 99, are also book, if it simply collated all rele- Frequently fees (while large in ‘bread-and-butter’ revenue available on CD-ROM. vant materials for its readers, themselves) are small compared sources are not what they used to Author Alan Moore, a former would perform a useful function. to the size of the transaction to be. On this point the book seeks inspector of taxes, has assembled However, by also providing an to blame increased competition a team of seven consultant edi- expert interpretation of the legis- and the (UK) recession for an tors to help in the task of provid- lation and doing so in a timely upturn in crime and fraud by ing a plain-English guide to the manner, it offers an invaluable on law: solicitors. various tax acts, including two service to both the specialist seek- Familiar issues are repeated, past presidents of the Institute of ing a second opinion and the gen- measurement such as lawyers defending guilty Taxation, Norman Judge and eral practitioner looking for an persons. Class traditions and the Brian Bohan, both of whom are introductory guide. G perceived stuffiness of the profes- noted authors in their own right. sion receive scathing criticism, The tax book is a substantial Niall O’Hanlon is a practising generally, but would be very use- and racism and sexism in the pro- work; volumes 1 and 2 incorpo- barrister and editor of the journal ful for competition lawyers. G fession are put under the spot- rate references to revenue prece- Irish business law (Blackhall light. dents, inspector’s manuals, state- Publishing). He is also a chartered Vincent Power is a partner with Image is equally a concern for ments of practice, guidelines, accountant and an associate of the the law firm A&L Goodbody. barristers as for solicitors. While leaflets and tax briefings. Volume Institute of Taxation.

27 Law Society Gazette May 2000 Gadgets Tech trends Compiled by Maria Behan

The great dictator Free and easy f you really love the sound of un aims to outshine its Iyour own voice, then check Srival Microsoft with its out Sony’s IC digital dictation StarOffice 5.2 software package, machine. Instead of using a simple-to-use (and free) standard or microcassette tape, alternative to Microsoft’s in Microsoft Office format) to your words are etched on an ubiquitous Office suite. avoid file-sharing snafus. integrated circuit (hence the StarOffice includes workplace Available free of charge as an IC moniker). Digital recording basics such as e-mail, word- Internet download from produces better sound quality, processing and graphics, and it www.sun.com/products/staroffice and since there are no internal can create and edit most other (a CD-Rom version will be moving parts, this gizmo is types of files (including those available later this year). lighter and smaller than other recorders. Not only can you capture memos, letters and brilliant insights as they occur The lazy man’s guide to you, the top-of-the-line model connects to your laptop to note-taking so you can use the Internet to leave audible e-mails or send ant an easy way to Pen, a pocket-sized hand-held voice files in to the office for Winstantly capture scanner, might be just the transcription. Between £90- quotes and other text from ticket. Run it along text the £150, available at Sony Centres newspapers, law books, or same way you would a and other electronics outlets. any other typed material? C- highlighter and it’s saved in digital form so you can print it out or add it to word-processor files and other applications. The latest – and most Perfect pitch for tin ears expensive – model lets you e- mail or fax stored material via f you can’t tell your treble the telephone. Ifrom your bass, you’re probably not going to need the Bose Lifestyle 5 music system, which automatically adjusts for optimum performance. The space- saving system – which includes a sleekly-designed AM/FM radio tuner, CD player and cube speakers with built-in amplifiers – is easy on the eyes, if not on the pocket. The included radio-frequency remote can work through walls and around corners, an improvement on ‘line-of- sight’ models. Price: about stg£180-stg£300; Price: about £1,300; available available from C-Technology’s UK at audio outlets and Brown distributor, Megapixels LTD, Thomas in Dublin. tel: 0044 (0)1425 674 617 or http://www.megapixels.co.uk.

28 Law Society Gazette May 2000 Gadgets

WAP’s it all about? illed as the world’s first mobiles can access text-based the delightfully-named Navi- B‘media phone’, the Nokia Internet content, including up- Roller, which lets you scroll 7110 uses the wireless application to-the-minute news, stock through and click on menu and protocol (WAP) technology quotes and weather reports. phone-book functions. Available you’ve been hearing so much This model boasts a large at mobile phone outlets; the start- about. WAP-ability means that graphics display and features up package costs about £200. Sites to see

European Company Lawyers’ Association (http://www.ecla. org). This site, from a confederation of national associations of company lawyers across Europe, provides info on the ECLA itself, as well as various topics concerning in-house counsel throughout Europe.

fat and tattoos. The romantically-challenged can look up ‘How Valentine’s Day works’, while the even worse-off might read up on ‘How flatulence works’.

Sports.com (www.sports.com). Die-hard sports fans (if not their bosses) should love this UK-based site, which boasts loads of information on football, rugby, golf, boxing and just about every other popular sport. It also offers information on sporting news and results across Europe and even the United States. Irish Supreme Court decisions (http://www.bailii.org/ie/ cases/IESC). A database from the Courts Service, and supported by the Law Society, containing a complete record of decisions, which can be searched alphabetically or by date.

CollegesWeb (www.collegesweb.com). Billing itself as a ‘one- stop-shop educational, information and social resource’, this site is a must for anyone interested in third-level education. It gives the low-down on CERT courses, apprenticeships and institutions across Ireland, including schools for everything from nursing to agriculture.

How stuff works (http://www.howstuffworks.com). Want to know how the world works? If you don’t have a hotline to God, then check out this arsenal for wannabe know-it-alls, which explains everything from the stock market and cruise missiles to dietary

29 Law Society Gazette May 2000 Briefing Report of Law Society Council meeting held on 10 March

Army deafness litigation the council on discussions and ly been intended that the Land been very ably represented by The director general reported correspondence relating to the Registry system would operate John Fish, both at national and on the outcome of meetings recent fees orders. He noted as an instant registration sys- EU level, on the issue. between officials from the that the Conveyancing tem. However, delays in the department of defence and rep- Committee’s principal objec- Land Registry were currently Establishment directive resentatives of the solicitors’ tions centred on (a) the running to 13 months. Michael Irvine briefed the firms acting for plaintiffs in inequity of increasing fees at a John Harte said that the council on the current status of army deafness cases. In the short time when services were being service provided by the Land the legislation implementing term, there would be an reduced, and (b) the new Registry had disimproved over the Establishment directive. The adjournment of cases in order to penalty clauses contained in the past ten years, with increas- council authorised the sub-com- facilitate serious and realistic the fees orders. Both matters ing arrears and increasing fees. mittee to proceed to seek cer- settlement negotiations. If these had been raised with the Land He was concerned that, as a tain amendments to the Solicitors proved successful, it could be Registry, through its users semi-state monopoly, the reg- Acts, arising as a result of the the key to settling the outstand- group, on which the Law istry could become answerable directive. ing 10,000 cases. James Society and the DSBA were to no-one. Tom Murran and McCourt said that, for the first represented. Questions had John D Shaw suggested that the Second annual report of the time in three years, the depart- been tabled in the Dáil and society might try to identify independent adjudicator ment officials had been concilia- there was now considerable solutions to the various prob- The council noted that the tory in tone and appeared to be disquiet about the proposed lems, in co-operation with the independent adjudicator had anxious to progress matters. move by the Land Registry to Land Registry. produced his second annual They had been reminded that, if semi-state status. Moya Quinlan said that the report and that it was a very pos- the state settled cases reasonably Orla Coyne said that, as the society should seek to meet itive reflection on all those and expeditiously, solicitors operative date of the new fees with the minister as soon as involved in complaints-handling would not be found wanting. orders was fast approaching, possible and should discuss the within the society. It acknowl- she believed that the society necessity, in the interests of edged the commitment of the Land Registry and Registry of should seek an urgent meeting clients rather than solicitors, staff in the Complaints Section Deeds fees orders with the minister. Gerard for a lead-in period in advance in a function which, by its The director general briefed Griffin said that it had original- of any move to semi-state sta- nature, could be emotive and tus. The council agreed that the stressful. society should seek an urgent The director general said that meeting with the minister. it was intended to seek a meet- A guide to ing with the minister to present Irish planning Proposed designation of the report, following which a solicitors pursuant to section press conference would be held legislation 32 of the Criminal Justice by the independent adjudicator. Act, 1994 3rd revised edition by John Fish reported that a letter Civil legal aid had been received from the The council considered and Kevin I Nowlan department which (a) indicated approved a report by the Family the minister’s commitment to Law and Civil Legal Aid An annotated the principle of extending the Committee on civil legal aid in compendium of the money-laundering provisions Ireland. It was agreed that the of the 1994 act to solicitors, (b) committee should proceed to Planning Acts and acknowledged the fact that a print and publicise its recom- Regulations, draft EU directive was being mendations. 1963 to 1998 considered, and (c) confirmed his decision to put designation Adoption law: the case ‘on hold’ pending finalisation of for reform Published by the Law Society of Ireland October 1999 the directive. The director gen- The council approved a report eral said that the minister’s from the Law Reform Price £75 plus £4 packing and postage decision to put designation ‘on Committee on the case for Available from the hold’ represented a significant reform of the law of adoption. It Law Society, Blackhall Place, Dublin 7 Tel 01 672 4800; success by the society’s sub- was agreed that a press confer- fax (credit-card orders only): 01 672 4801 committee. James MacGuill ence should be held on 13 April said that the profession had 2000 to launch the report. G

30 Law Society Gazette May 2000 Briefing Committee reports

CONVEYANCING of the fees orders dispute, and a is compulsory). Members bit- the consumer and the profes- substantial improvement of terly complained about the sion of conversion to semi-state Priority was given at the April service. Other members point- severe restriction in telephone status. What may have been a Conveyancing Committee ed to the success of the Courts service, and asked the delega- good idea in the 1980s may not meeting to the continuing Service, and suggested that this tion to urge the minister to be one in the 21st century. impasse over the Registry of might be a model. Clearly, the ensure that it was not repeated. Finally, committee members Deeds and Land Registry fees question of funding was vital to They also suggested that the pointed out that Stamp Office orders. It was reported to the the registries, but it was noted minister might apply the Land delays would make it all the committee that the president, that the substantial profit made Registry fees order only to more difficult to meet the the director general, the chair- by the registries each year was dealings where the transfer was 1 May deadline, and asked that man of the committee, and the not ploughed back into their dated after 1 May 2000. appropriate representations chairperson of the DSBA development. The registries The committee asked the be made to the Revenue Conveyancing Committee had have been underfunded for delegation to ascertain whether Commissioners in this regard. arranged to meet the minister years. Members of the commit- the semi-state body would be The committee also consid- for justice, equality and law tee expressed their fears that funded any better than the reg- ered a heavy agenda of items, reform to express the continued mere conversion to semi-state istries are at present. Members including: unfair terms in opposition of the profession to status would not achieve any- questioned to what extent con- building contracts; homebond; the new fees orders, especially thing, and might simply be version was crucial, or even stage payments; revising the those items which were aimed ‘more of the same’ without the important. The committee building agreement; revising at disciplining solicitors. In the protection of parliamentary decided that it could not give a requisitions on title; VAT; the light of widespread dissatisfac- accountability. ‘blank cheque’ to conversion. Conveyancing handbook; rela- tion with the new fees orders Members felt that the reg- It would only now give support tions with the lending institu- and the continuing deteriora- istries were intended to provide conditional upon a number of tions; e-commerce; the tion in the level of service pro- a public service and should not matters: the revision of the fees Planning and Development Bill; vided by the registries, the del- be converted into a commercial orders; a guarantee of top qual- together with various other egation wanted the views of the body, with no public service ity service; adequate funding; a matters. committee as to whether to requirement, such as consumer commitment to full co-opera- Solicitors experiencing diffi- raise with the minister the pro- protection. Other members tion with the profession; con- culties with the Land Registry posed conversion of the reg- questioned the value of the sumer protection being built or the Registry of Deeds, or istries to a semi-state body. Land Registry. It was intended in; the proper control of future with the new stamping system, The Law Society Council to be cheaper and quicker than fee increases, with particular might please report these, in had decided, in the late 1980s, the Registry of Deeds, whereas consideration being given to writing, to the secretary of the to support the idea of conver- it was proving to be dearer and the overheating property mar- Conveyancing Committee at 33 sion to semi-state status. Some slower. The question was posed ket, and the vulnerable sectors Manor Street, Dublin 7. G members of the committee felt whether solicitors should therein. The committee felt that conversion should be put advise clients to apply for first that the society should remain Brian Gallagher, chairman, on hold pending the resolution registration at all (save where it to be convinced of the value to Conveyancing Committee LEAVE IT TO THE EXPERTS! SHELFSHELF COMPANYCOMPANY NOWNOW £200£200 THE LAW SOCIETY’S COMPANY SERVICE, BLACKHALL PLACE, DUBLIN 7 FAST • FRIENDLY • EFFICIENT • COMPETITIVE PRICES • MEMBERS OF EXPRESS SERVICE PHONE CARMEL OR RITA ON 01 672 4914/6, EXT 450 (FAX: 672 4915) • Private limited company – ten days, £180 • Single member company – ten days, £180 • Guarantee company – ten days, £128.40 • New companies, using complete nominees – • Shelf company – ten minutes, £200 ten days, £200

31 Law Society Gazette May 2000 Briefing Practice notes

GUIDELINES ON LANDLORD’S TITLE The Conveyancing Committee fession and certain judicial pro- named defendant to the third- mittee is of the view that prudent issued a practice note in the Law nouncements (in particular, the named defendant. The licence was solicitors acting for tenants of Society Gazette in January/ decision in Hill v Harris [1965] 2 transferred into the name of the short-term leases of commercial February 1980 in relation to the AER) referred to in that practice second-named defendant as a property should make the same enquiries which ought to be made note) had made inroads into the nominee of the third-named defen- enquiries and investigations as in relation to title by a solicitor for statutory position. dant. The plaintiff as mortgagee those acting for tenants of longer a tenant on the granting of a rack- More than 20 years have issued proceedings in April 1994 leases. The committee is of the rent lease. The view of the com- passed since the issuing of the in which, among other things, it view that the Law Society’s recom- mittee at that time was that practice note. The committee is sought possession of the premis- mended ‘pre-lease enquiries or enquiries need only be made in now of the view that in relation to es. Lynch J in his judgment indi- checklist’ as published in the relation to a landlord’s title when shorter-term commercial leases cated that the second- and third- Gazette in May 1990 (and repro- acting for a client taking a lease of the practice of the profession named defendants had to be duced in the current edition of the commercial property for a period in since then and the decision in ICC regarded as having notice of the Conveyancing handbook) should excess of three years. This view Bank Plc v Richard Verling, Niamh mortgage created by the first- be raised in relation to all such was taken on the basis that while Landy and Wine Dimensions named defendant in favour of the leases. Practitioners should, how- a tenant was not, under the provi- Limited ([1995] 1ILRM 1.23) have plaintiff as it was registered in the ever, note that this checklist is at sions of the Conveyancing or the resulted in an alteration of this Registry of Deeds and they could present the subject matter of a Vendor and Purchaser Acts, enti- position. In that case, a two-year, have discovered its existence by review by the committee to take tled to enquire into the landlord’s nine-month lease of an off-licence means of a simple search. account of recent legislation. title, both the practice of the pro- premises was granted by the first- In view of the above, the com- Conveyancing Committee

RETENTION PERMISSION: DWELLINGHOUSES CERTIFICATE OF COMPLIANCE? The Law Society published a prac- for the retention application cor- consider whether it was reasonable such a case, a solicitor preparing tice note about the need for certifi- rectly showed the actual structure to accept a title in a case where a contract should put in a special cates of compliance relating to for which permission to retain was permission to retain an extension condition putting the purchaser on retention permissions in the applied for. If there are conditions to a dwellinghouse was obtained notice of the position and provid- November 1997 issue of the to the grant of permission to more than ten years ago and no ing that no requisition or objection Gazette. This practice note was retain, the certifier should go on to certificate of compliance is avail- shall be made due to the lack of intended to apply only to private deal with these in the usual way. able. The committee takes the view certificate. In that way, before houses. The committee takes the No certificate of compliance that, in light of the provisions of the signing a contract, a purchaser view that it is reasonable for a should be required where the per- 1992 act, it is reasonable for the has an opportunity of getting solicitor for a purchaser to ask for mission related only to the reten- solicitor not to require a certificate advice in the matter, and, if nec- confirmation by way of letter of tion of a (changed) use, where no of compliance in such a case essary, to get advice from an opinion by a suitably qualified per- conditions were attached. unless there is an evident problem. experienced architect or engineer. son that the drawings submitted The committee was asked to When acting for a vendor in Conveyancing Committee

ISSUING OF MORE THAN ONE CONTRACT FOR SALE HIGH COURT BAIL The Conveyancing Committee has out calling for the return of the first informed in writing that the vendor APPLICATIONS been asked to indicate the correct contract from the first purchaser’s is not proceeding with the sale to practice in the following circum- solicitor, and without informing the his/her client, and that a contract Practitioners are advised that stances: second purchaser’s solicitor of the should not be issued to the sec- the target date for the use of The vendor’s solicitor has issuing of the first contract. ond purchaser’s solicitor without Cloverhill Courthouse for High issued a contract to a purchaser’s The Conveyancing Committee is first calling for the return of the Court bail applications is 15 solicitor, but then received instruc- of the opinion that this is not prop- first contract from the first pur- May 2000. tions to issue a second contract to er practice, and that the first pur- chaser’s solicitor. Criminal Law Committee a second purchaser’s solicitor with- chaser’s solicitor should be Conveyancing Committee

32 Law Society Gazette May 2000 Briefing

INSURANCE ON APARTMENTS OR QUASI-APARTMENTS

Many modern commercial devel- the event of the total destruction The best practice in such mat- an apartment on the ground opments comprising one struc- of the entire block of which it ters would be to have one man- floor and a two-storey duplex ture are intended to end up in forms part, could not be rebuilt agement company which would unit above. Each are self-con- different ownerships. The best without the co-operation of oth- insure the entire structure, tained (with their own entrance). practice in relation to fire insur- ers who would have their own recovering the insurance by way The developer does not arrange ance in such cases is that the vested interests and agendas. of service charge. Such arrange- a block insurance but leaves it entire structure is in the name of Two examples are worth con- ments may be somewhat more to the owner of each unit to one entity and the contributions sidering. complicated in that two manage- arrange their own insurance. In for the different units forming ment companies are sometimes some cases, they also fix the part of this are contributed by EXAMPLE 1 necessary and considerable owner of the ground floor apart- way of service charge. The entity A new block is being developed care is needed in relation to the ment with responsibility for the is usually a management com- comprising retail units on the control thereof. There is a ten- foundations and the owner of pany but sometimes a major ground floor and basement with dency to give the commercial the duplex unit with responsibili- commercial company takes on several stories of apartments owners (whose units are likely to ty for the roof. the role. The reason for this is above. The apartments were all be much more valuable) a The best practice in such mat- simple. In the event of a fire insured in one block policy and greater say in the management ters in the view of the committee involving total destruction, it is this policy was a typical apart- of the company in the hope that is to treat such a development impractical to have a number of ment insurance policy as if the their business experience is like any apartment block. The different owners involved in re- apartment block was standing more likely to have the insurance structure should be owned by a planning and rebuilding. on its own foundations and reviewed on an on-going basis, management company which The Conveyancing Committee ground. The individual retail which is sometimes neglected by should insure the entire block is alarmed to hear that some units were left to arrange their management companies which and be responsible for repairs of developers are ignoring such own insurance. The legal docu- may be run by people who have the foundations, structural fabric fundamental points in arranging mentation gave no rights to the little or no experience of busi- and roof and the common areas the legal structures in new build- apartment owners to enter on ness. (although in the case of a duplex ing developments. the retail area to rebuild the unit the only common areas The committee finds it sur- foundations in the event of total EXAMPLE 2 would probably be water tanks in prising that insurance compa- destruction of the entire block. A builder is selling apartments/ the roof space). nies seem to happily insure an Such problems were just duplex units comprising a three- upper floor apartment which, in ignored. storey building. This comprises Conveyancing Committee

REFUND IF CONTRACT SIGNED UNAMENDED WITHIN SEVEN DAYS The Conveyancing Committee has umentation without alteration or tion of such a special condition er’s solicitor and the purchas- been asked to indicate the cor- addition, and it is returned with is not proper practice because: er, and rect practice in the following cir- the full deposit to us within seven • the purchaser’s solicitor • it might act as an inducement cumstances: days of today’s date, then the could not in these circum- for the purchaser’s solicitor The vendor’s solicitor has purchaser will receive a refund of stances advise his/her client to overlook some aspect of issued a contract to the purchas- £2,000. Time is of the essence in properly in relation to title and the transaction to which er’s solicitor containing the fol- this regard’. other essential matters, and he/she would otherwise lowing special condition: ‘If the The Conveyancing Committee • it might introduce a conflict of object. purchaser signs the contract doc- is of the opinion that the inser- interest between the purchas- Conveyancing Committee

CANCELLATION OF FAMILY LAW BURDENS REGISTERED ON FOLIOS LAW SOCIETY Under the provisions of section Land Registry for registration The Conveyancing Committee 9(4) of the Family Law Act, 1995 under section 69(1)(h) of the recommends that when a trans- OF IRELAND and section 14(4) of the Family Registration of Title Act, 1964. fer implementing a property ON E-MAIL Law (Divorce) Act, 1996, the reg- There is no procedure under adjustment order is being draft- istrar of the court which makes a which the burden consisting of ed, the solicitor concerned Contactable at property adjustment order when the property adjustment order should include a consent by the [email protected] granting a decree of judicial sep- will automatically be cancelled parties to the cancellation of the aration or divorce is obliged to when the instrument implement- burden consisting of the proper- Individual mail addresses take the form: lodge a certified copy of the ing the order is lodged in the reg- ty adjustment order. [email protected] property adjustment order in the istry for registration. Conveyancing Committee

33 Law Society Gazette May 2000 Briefing

CONTENTS OF DOCUMENTS SCHEDULE IN CONDITIONS OF SALE: A REMINDER The Conveyancing Committee for negligence. The committee practice. documents listed in the docu- was recently asked to reconsider urged that purchasers’ solicitors The Conveyancing Committee ments schedule”, a purchaser’s its recommendation on the ques- resist conditions in contracts has become quite concerned at solicitor is by virtue of general tion of what documents should be which seek to attempt to restrict the developing practice of ven- condition 6 put on notice of cer- included in the documents sched- the raising of proper requisitions dors’ solicitors furnishing to pur- tain covenants etc. ule in contracts for sale. The com- on title or which put them on chasers’ solicitors copies of all The Conveyancing Committee mittee was requested to recon- notice of documents at pre-con- documents relating to the ven- disapproves of the foregoing prac- sider its recommendation on the tract stage which would oblige dor’s title coupled with a special tice and recommends that, in basis that many practitioners do them to carry out a full investiga- restrictive condition worded in the accordance with established con- not appear to be adhering to the tion of title pre-contract. The com- following or similar terms, viz: veyancing practice, the docu- practice as originally recommend- mittee likewise urged solicitors “The title shall consist of the doc- ments listed in the documents ed and are instead listing all doc- acting for vendors not to insert uments listed in the documents schedule should be limited to: uments of title in the documents such conditions into draft con- schedule and shall be accepted •the root of title being shown schedule, thereby putting a pur- tracts as, in the view of the com- by the purchaser as full and ade- • any document to which title is chaser’s solicitor on notice of mittee, such conditions are highly quate evidence of the vendor’s stated to pass under the spe- such documents at the pre-con- undesirable and unfair to pur- title to the subject property”. cial conditions tract stage. chasers and their solicitors. It is the view of the committee •any document which is specifi- The committee considered the The original practice note is re- that such a practice is highly cally referred to in a special fact that such a practice would published below for the informa- undesirable and unfair to pur- condition oblige a purchaser’s solicitor to tion of the profession with the addi- chasers and their solicitors as a • planning documentation. carry out a full and detailed inves- tion of a new sub-paragraph (d). clear attempt to restrict the rais- tigation of title (including the rais- ing of proper requisitions on title. The Conveyancing Committee dis- ing of requisitions on title pre-con- ‘Contents of documents Furthermore, the committee con- approves, save in very exception- tract) before advising the pur- schedule in conditions of sale siders that the practice is also al circumstances, of a practice chaser to complete the contract. The intention of the Law Society unfair to purchasers and their which would unreasonably restrict The committee expressed grave Conveyancing Committee in solicitors as by putting them on solicitors for purchasers in carry- doubts about whether full investi- preparing the standard conditions notice of such documents at the ing out proper and detailed inves- gations of title could be complet- of sale for general use was that pre contract stage it obliges the tigations of title on behalf of their ed pre-contract in these cases in the vendor would disclose at con- purchaser’s solicitor to carry out clients.’ the timeframe usually available. tract stage sufficient and ade- a full and detailed investigation of The committee unanimously quate particulars of the vendor’s title before advising his clients to (Published in the Law Society decided that it would be extreme- title to enable a purchaser’s solic- complete the contract. This is par- Gazette, March 1995, and re-pub- ly dangerous to change its previ- itor to consider properly the ade- ticularly the case where property lished at page 12.16 of the Law ous recommendation, as to do so quacy of such title before comple- is being sold by auction. Society’s Conveyancing hand- would have the effect of exposing tion of contracts in accordance Even if the condition merely book, 2nd edition.) purchasers’ solicitors to claims with long-standing conveyancing says “The title shall consist of the Conveyancing Committee

LAW SOCIETY GENERAL CONDITIONS OF SALE A practice appears to be develop- the contract. The planning warran- tract planning queries from numer- or nature of conditions referred to ing whereby vendors’ solicitors, in ty can then be modified according- ous interested parties. in general condition 36 itself. In drafting conditions of sale, auto- ly and, in an appropriate case, lim- Practitioners’ attention is drawn the latter connection, the commit- matically insert a special condition ited to the period during which the to the note published in the Law tee considers it important for an deleting the entire of general con- vendor has been familiar with the Society Gazette in October 1995 intending vendor, prior to contract, dition 36 (the planning warranty). property. (and on page 12.21 of the Convey- to put the prospective purchaser in While many circumstances exist Purchasers faced with a blanket ancing handbook), an extract from possession of all material informa- where vendors are not in a position exclusion of general condition 36 which is reproduced below. tion in the spheres of planning, to give any planning warranty must carry out a full investigation building control and kindred legis- because they have no personal of planning issues prior to con- ‘Note: lation, and that any inability to ful- knowledge of the property (such as tract. While this will sometimes be There is a recommendation within fill the requirements of general liquidators and personal represen- appropriate in any event, it can the marginal note to general condi- condition 36 be dealt with through tatives), the Conveyancing lead to substantial delays from the tion 36 that certain matters be the medium of special condition’. Committee considers that the vendor’s perspective in having con- dealt with expressly by special con- While this note is directed at automatic deletion of general con- tracts exchanged. The vendor can dition. Practitioners are reminded general condition 36, the same dition 36 is unfair to purchasers avoid such delays by a full disclo- that a corresponding recommenda- principle applies to other general and should be resisted. Vendors’ sure of planning issues in the con- tion extends to issues arising conditions. Any deletion of general solicitors should take full instruc- tract. In an auction situation, the under any of the general conditions conditions, for reasons which are tions in relation to the planning his- vendor’s solicitor who deletes in including, inter alia, points of diffi- not self-evident, should be account- tory of the property in sale and dis- full general condition 36 may find culty or doubt on warranties or ed for in the special conditions. close any planning difficulties in him/herself dealing with pre-con- compliance or as to the existence Conveyancing Committee

34 Law Society Gazette May 2000 Briefing In a corner What to do when the CAB comes to call Continuing our series on coping with crisis situations, Mary Keane explains what you should do if officers from the Criminal Assets Bureau call to your office with a warrant

nder section 14 of the officers of the minister for ing that evidence of or relat- ty transactions’ on behalf of UCriminal Assets Bureau Act social welfare. Consequently, ing to assets or proceeds the named person; in others of 1996, the Criminal Assets the criminal activity being deriving from criminal activ- still, it will apply to evidence Bureau can obtain a search war- investigated can vary across the ities or to their identity or relating to ‘monies and rant from a district judge where spectrum from social welfare whereabouts is to be found at goods’ received by the named the judge is satisfied that there offences to tax offences to the solicitor’s offices person. This part of the war- are reasonable grounds for sus- mainstream criminal offences. •A description of the mate- rant will usually conclude pecting that ‘evidence of or Non-garda bureau officers rial. This will usually be with the name and address of relating to assets or proceeds have a statutory guarantee of divided into (i) financial the solicitor’s offices, being deriving from criminal activi- anonymity and do not have to records (cheques, copy the place authorised to be ties, or to their identity or show evidence of identity. cheques, bank drafts, receipts searched under the terms of whereabouts’ is to be found in However, at least one of the and so on), and (ii) non- the warrant any place. visiting officers must be a financial records (correspon- • The authorisation. This On occasion, section 14 war- member of the gardaí and, on dence, notes, memoranda, part of the warrant will name rants have been issued in request, must identify himself contracts, requisitions, title the garda member authorised respect of client information as such. documents and so on). Both to conduct the search and held at solicitors’ offices. In The warrant will follow a (i) and (ii) will be qualified so will empower him to enter these circumstances, the usual standard layout, which can be as to exclude items ‘subject to the premises within one format is that a number of CAB divided into four constituent legal privilege’. The name(s) week, to search it and any officers will attend, without parts: of the persons to whom the person found there, and to notice, at the solicitor’s offices, • The introduction. This will warrant relates and their seize and retain any material will produce the warrant and identify the garda member address(es) will be listed. In which he believes to be evi- will ask to examine the client’s who brought the application, some instances, the warrant dence of or relating to the file(s) and the accounting/com- and will contain the state- will apply to evidence relat- proceeds of criminal activi- puter records relating to trans- ment by the judge that he is ing to a specific named prop- ties. The warrant will also actions undertaken on behalf of satisfied that there are rea- erty; in others, it will apply to authorise him to ‘exercise the the client. Often, these will be sonable grounds for suspect- evidence relating to ‘proper- powers contained in section conveyancing transactions and 14(6) of the Criminal Assets the purpose of the examination Bureau Act, 1996’, that is, to is to establish a paper trail in WHAT SHOULD YOU DO? require any person present to relation to the purported dis- If the CAB arrives at your office with a warrant, you should: give their name and address posal/laundering of assets • Read the warrant carefully and take a copy and to arrest any person who derived from criminal activi- • Check that it has been issued within the last week refuses to give his name and ties. In most cases, there is no • Comply with its exact terms, that is, in relation only to the address or who obstructs the suspicion that the client named persons named and the material listed officer in carrying out his on the warrant was knowingly • Satisfy yourself that there is nothing in the documentation duties involved in money laundering, that is subject to legal privilege. If any items are privileged, • Signature and date. The but the CAB may believe that inform the bureau officer warrant will conclude with the transaction formed part of • If a file or documents are being retained by the bureau offi- the signature of the district a chain of transactions engaged cer and if time allows, copy the file. Otherwise, obtain a judge and the date the war- in by a person under investiga- receipt from the bureau officer rant was issued. tion. •Take care not to disclose any information in relation to It is worth noting that the other clients of the office Because it is anathema to the bureau is a multi-disciplinary •Inform your client that you have been required by law to training of a solicitor to disclose body and its officers comprise hand over his file/documentation to the authorities any information in relation to members of the Garda •Prepare and retain an attendance note on the visit his client to a third party, the Síochána, officers of the • If in doubt, contact the Law Society. production of a CAB warrant Revenue Commissioners and can cause great consternation in

35 Law Society Gazette May 2000 Briefing a solicitor’s office. While a war- section 58 of the Criminal rant issued by a court must be Justice Act, 1994, any person complied with, nevertheless it who makes a disclosure which is should be complied with strict- likely to prejudice an investiga- ly within its terms and not tion by the authorities into beyond. A warrant does not drug trafficking or money laun- constitute an authorisation for dering is open to criminal pros- a general trawl through all and ecution himself. However, a any files in a solicitor’s office. It solicitor’s relationship with his has been issued on the basis of client is of a special nature and sworn evidence and for a spe- the section should not be read cific purpose. As with any in isolation. authorisation, it must be exer- Section 58 provides for a cised reasonably. A solicitor defence of ‘lawful authority or should assist the CAB officers reasonable excuse’ to a prosecu- in complying with the terms of tion for disclosure. In addition, the warrant, but should also be the judgment of Kinlen J in conscious of his client’s rights Michael E Hanahoe & Co v and his own professional obli- District Judge Hussey, the Garda gations. In particular, a solicitor Commissioner and the Attorney should ensure that information General indicates that a solicitor in relation to other clients who served with an order to produce are not the subject of the war- client documents under section rant are not disclosed to the 63 of the Criminal Justice Act, authorities. 1994 ‘would have been bound In relation to the exemption or at least entitled’ to inform for items subject to legal privi- his client. It seems reasonable lege, the CAB will accept a to conclude that a similar enti- solicitor’s assurance that a par- tlement would apply where a ticular item/document/file is section 14 warrant is involved subject to legal privilege and a and the CAB has informally solicitor should always satisfy indicated that this accords with himself that there is no privi- its view. As a matter of good leged item on a file before practice, a solicitor might indi- releasing it. cate to the CAB officers his There has been a question intention to notify his client. G mark over a solicitor’s right to notify his client that his file has Mary Keane is deputy director been seized by the CAB. Under general of the Law Society.

SOLICITORS’ HELPLINE The Solicitors’ Helpline is available to assist every member of the profession with any problem, whether personal or professional.

The service is completely confidential and totally independent of the Law Society.

If you require advice for any reason, phone:

01 284 8484 01 284 8484

36 Law Society Gazette May 2000 Briefing

Personal injury judgments

Employer liability – negligence – breach of statutory duty – employee restarting a machine in a factory unaware that a fitter was inside – nervous shock – post-traumatic stress disorder – whether employer liable – review of authorities

CASE Eithne Curran v Cadbury (Ireland) Limited, Circuit Court in Dublin, before Judge Bryan McMahon, judgment of 17 December 1999. THE FACTS ithne Curran, a woman with couple of minutes. The machine Evidence was given that Mr medication from time to time. Ethree adult children, was was closed down and the fitter Breen was the only person who The 16-session course of psy- employed by Cadbury (Ireland) went to work on the repairs. All could see both the fitter and the chotherapy addressed problems Limited at a factory in Coolock, of this was done out of the sight control panel at the same time with her self-esteem and confi- Dublin. On 16 March 1996, Mrs of Mrs Curran. Mr Breen stated when the repairs were in dence. She became more Curran, with another operator, he warned Mrs Curran’s work- progress. While Mr Breen was dependent on support from her was working near a moving belt mate about what was going on. on guard, as it were, he received family. At the date of the trial, which carried bars of chocolate Mrs Curran alleged that she was a call on his telephone bleeper. more than three-and-a-half to her workstation where they not informed that the fitter was He left his post of vigilance and years after the accident, she was were packed by her and her in the machine. Accordingly, she it was in his absence that Mrs still on anti-depressants but, workmate. The machine feeding went to the control panel and Curran re-started the machine. according to medical reports, a out the bars of chocolate stopped pressed the start button, as was Evidence was given to the favourable prognosis was antici- without notification to her. She her normal practice. It was then, court by a consultant psychiatrist pated and it was expected that proceeded to re-start the as Mrs Curran put it, ‘all hell that Mrs Curran suffered post- her residual problems would machine and immediately broke loose’. traumatic stress disorder as a resolve within a further 12 became aware that there was a Mr Breen stated in evidence result of the accident. One doc- months. fitter inside the machine, repair- that he signalled through per- tor considered the condition as A consultant psychiatrist con- ing it, out of her sight. She got a spex glass to Mrs Curran’s work- of ‘moderate intensity’, while firmed that Mrs Curran was anx- great fright and thought she had mate that the machine would be another considered it ‘a mild ious, tense, red in the face, dis- killed or done serious injury to shut down while the fitter was form’. One of the doctors stated tressed and tearful when talking the fitter inside the machine. Mrs working on it on the blind side that when the fitter emerged about the experience. Initially, Curran claimed she suffered a from Mrs Curran. Mr Breen from the machine, Mrs Curran the psychiatrist recommended serious psychiatric illness due to stated he communicated the was in ‘a state of extreme shock’. medication to inhibit panic. the negligence, breach of duty repairs would take approximately Following the accident, she When the psychiatrist reported and breach of statutory duty of three minutes and that the became very anxious and com- in February 1999, Mrs Curran Cadburys. machine should not be restarted plained of bouts of diarrhoea was somewhat improved, but Cadburys denied liability. Mr while the work was in progress. and tightness in her chest. She still taking anti-depressant and Breen, a member of the compa- That message was, according to had nightmares and her self- anti-anxiety medicine. She was ny’s management, stated that he Mr Breen, communicated by a esteem was diminished. There still experiencing occasional and another manager, Mr series of hand signals from was evidence that she was much flashbacks but had begun to Carolan, while doing their behind the perspex panel to Mrs less outgoing and developed a emerge from ‘an emotional shell rounds in the factory, noticed Curran’s fellow employee. Mrs phobia regarding the site of the she had constructed around her- there was something wrong with Curran gave evidence that, what- accident, was agitated and tear- self’. The psychiatrist said she the machine and they called a fit- ever might have passed between ful when describing the incident. would continue to improve and ter to assess the problem. A loose Mr Breen and her fellow opera- Mrs Curran had received a she would be back to normal screw was identified as the prob- tive, the message was never course of psychotherapy but also after another six to nine months lem which could be repaired in a passed on to her by anyone. became depressed and received of medication. THE JUDGMENT udge Bryan McMahon deliv- 17 December 1999. Having stated that Mrs Curran, unlike which came before the Irish Jered a written judgment on outlined the facts as above, he other nervous shock cases courts in recent years, was a

37 Law Society Gazette May 2000 Briefing participant in, and not a mere lem of compensating victims for that there was no reason to sus- Curran’s fellow employee, the observer of, the accident. She negligently-inflicted ‘nervous pect that courts in Ireland message was not passed on to started the machine; she shock’, approached the issue would not follow this line of Mrs Curran, whose evidence pressed the button; she heard from basic principles. In Kelly, authority. on this he accepted. the commotion and screams, as Hamilton CJ, with whom Egan J He considered that the ques- the fitter, although out of sight, agreed, started his analysis with tion arose as to whether this Issue of liability for was quite close to her. She the neighbour concept expressed kind of harm in Mrs Curran’s nervous shock unwittingly caused the injuries in Donoghue v Stevenson ([1932] case (that is, psychiatric illness) Having referred earlier in his to the fitter. Thinking she had AC 562). The chief justice listed could reasonably be foreseen as judgment to certain basic prin- killed or seriously injured a fel- five conditions which had to be a consequence that would fol- ciples relating to nervous low employee, she quickly complied with before recovery low from Cadbury’s lack of care shock, Judge McMahon pro- turned off the power and then would be allowed. Judge in the circumstances. He stated ceeded to consider the law in ran some 45 yards around the McMahon noted, bearing in it was clear that Cadburys had some detail in the context of machinery to see the result of mind the Supreme Court’s failed to take reasonable care in the harm or the psychiatric her work. As she ran, she was approach, it was appropriate that the circumstances for the safety injury suffered by Mrs Curran. filled with fear, apprehension he too should approach the pres- of its employees. In particular, He stated that Irish authorities and probably, according to the ent case from basic common law when management appreciated clearly established that the duty judge, ‘irrational guilt’. The principles. He noted that the risk involved, Mr Breen as a to compensate for nervous judge referred to her evidence although there was controversy manager fell short of what a shock in negligence cases when she stated she was ‘blind- and uncertainty still enveloping reasonable employer would do. extends only to recognised psy- ed with panic’. She could not this branch of the law in First, according to the judge, chiatric illnesses. He noted that see the fitter’s face. All she saw England, and he referred to the Mr Breen failed to communi- in the present case the medical was a blur. She feared the worst. most recent House of Lords pro- cate the danger of restarting the evidence of doctors was that The judge stated that post- nouncements, he considered it machine in a clear, unambigu- Mrs Curran suffered from a traumatic stress disorder was a was prudent to be guided by the ous way to all people in the mild to moderate post-trau- recognised psychiatric illness, basic principles ‘and to observe vicinity who were likely to matic stress disorder and this referring to Mullally v Bus Éire- good navigational advice: small restart the machine: ‘The tick had been accepted in this juris- ann ([1992] 1LRM 722). He boats should sail close to the tack sign language used in the diction as a recognised psychi- considered in some detail the shore especially when the sea is noisy atmosphere and through atric illness (Mullally v Bus Éire- terminology used in certain cross and uncertain’. the perspex glass was more ann, above). Second, the judge jurisdictions in the context of Judge McMahon noted that appropriate to the coded lan- stated that such harm is recog- people who had suffered nerv- Mrs Curran, in addition to guage required to the book- nised as compensatable in neg- ous shock and who claimed being a neighbour in the makers’ ring where secrecy was ligence only if it is brought compensation. The judge ‘Atkinian’ sense (a reference to at a premium than what was about by a shock or sudden referred to the tendency in Lord Atkin’s dictum in required in ensuring clear com- event. He noted that compen- recent years, especially in Donoghue v Stevenson), was also munications in a situation sation in this jurisdiction was English cases, to divide victims an employee of Cadburys and where death and serious per- not available for general grief into two categories, primary the legal relationship between sonal injuries are present’. or sorrow, or for a condition victims and secondary victims. them imposed some obligations Second, the judge noted that which was brought about over a But he added that he was not (tortious and contractual) on Mr Breen left his post of vigi- period of time, for example, by convinced that the separation of Cadburys as an employer. He lance to take a telephone call; the wear and tear which caring victims into these two cate- stated that the duty of the there was no evidence that the parents might suffer if they gories did anything to assist the employer towards his employee call was so urgent that it should have to look after a son or development of legal principles is not confined to protecting the take priority over the task at daughter severely injured in an that should guide the courts in employee from physical injury hand, which Mr Breen testified accident (Kelly v Hennessy, this complex area of the law. only; it also extends to protect- would only take three minutes above). Judge McMahon quoted ing the employee from non- in any event. The judge emphasised that Hamilton CJ in Kelly v Hennessy physical injury such as psychi- Third, Mr Breen, and the the psychiatric illness as harm ([1995] 3 IR 253), the leading atric illness or the mental illness management generally, failed must be reasonably foreseeable case in the matter, noting that that might result from negli- to: a) devise a more adequate by the employer. In determin- the chief justice did not refer to gence or from harassment or warning system (a simple warn- ing whether such psychiatric the distinction between primary bullying in the workplace. The ing notice on the control panel illness was reasonably foresee- and secondary victims. judge referred to Walker v while repairs were in progress able or not, it would be relevant However, the judge said it was Northumberland County Council would have prevented an unsus- to take into account, according clear that Mrs Curran was a pri- ([1995] 1 All ER 737), where pecting operative from restart- to the judge, that there was fear mary victim. the English courts imposed lia- ing the machine); and b) devise for one’s own physical safety, bility where the plaintiff in that a system which would ensure the safety of one’s family, or the Basic principles in relation case foreseeably suffered a nerv- that the machine would be safety of one’s fellow employees to nervous shock ous breakdown because of knocked off while it was being or fear for the safety of one’s The court noted that the unreasonably stressful working repaired. The judge noted that home. The judge quoted Supreme Court in Kelly v conditions imposed on him by even if Mr Breen did give a authorities for all of these Hennessy, in addressing the prob- his employer. The judge noted coherent warning to Mrs propositions.

38 Law Society Gazette May 2000 Briefing

In Mrs Curran’s case, the ‘1.The plaintiff must establish that the general requirements set that Mrs Curran might have judge noted it was clear from he or she actually suffered down by Hamilton CJ in Kelly suffered psychiatric illness for the evidence and from the facts “nervous shock”. This term has that Mrs Curran could recover their failure in this regard, Mrs already outlined that the harm been used to describe “any recog- in such circumstances. Curran was also entitled to was reasonably foreseeable. If nisable psychiatric illness” and a He considered, based on recover on this ground. The Mrs Curran switched on the plaintiff must prove that he or authorities he quoted, that Mrs judge noted that in defining machine while the fitter was she suffered a recognisable psy- Curran could recover since the ‘personal injury’, section 2 of inside the housing of the chiatric illness if he or she is to employer owed her a duty of the Safety, Health and Welfare at machine, then the fitter would recover damages for “nervous care not to expose her to rea- Work, Act, 1989 included ‘any in all probability be physically shock” … The plaintiff must sonably foreseeable psychiatric disease and any impairment of a injured and Mrs Curran would establish that his or her recog- illness caused by the employer’s person’s physical or mental get a great fright which would nisable psychiatric illness was negligence which caused Mrs condition’. The judge consid- easily result in a serious assault “shock induced” … A plaintiff Curran to think she had seri- ered the definition of ‘personal on her nervous system and must prove that the nervous ously injured her fellow injury’ in the 1989 act and stat- result in psychiatric illness. shock was caused by a defen- employee. ed it was clear that the statut- ‘The noise, the screams, the dant’s act or omission … The ory duty in the present case malfunctioning of the machine, nervous shock sustained by a Breach of statutory duty obliged Cadburys to avoid both the shout of alarm from others, plaintiff must be by reason of In addition to Cadburys’ physical and mental injury, and all assaulting the plaintiff actual or apprehended physical breach of its common law duty if Cadburys foresaw some per- through her own senses would injury to the plaintiff or a person of care, the judge considered sonal injury it could be argued frighten the most courageous’, other than the plaintiff … If a whether Cadburys was also in that such a person would never- according to the judge. Added plaintiff wishes to recover dam- breach of its statutory duties. theless be liable for any person- to this was the guilt factor, irra- ages for negligently-inflicted Mrs Curran’s legal team had al injury that follows, even if tionally assumed by Mrs nervous shock, he must show referred in particular to the this were mental impairment Curran as a result of her that the defendant owed him or Safety, Health and Welfare at only. He noted that Mrs causative role, and ‘one that has her a duty of care not to cause Work (General Application) Curran did not have to rely on a combination that would him a reasonably foreseeable Regulations, 1993 (SI no 44 of this interpretation, since he had frighten the bravest soul’. The injury in the form of nervous 1993) and especially to para- found as a fact that Cadburys in psychiatric illness that the shock. It is not enough to show graph 13 of the fifth schedule, the present case could foresee events triggered was acknowl- that there was a reasonably fore- which reads as follows: psychiatric illness and that is edged by the doctors who had seeable risk of personal injury ‘13(a) where possible, mainte- what Mrs Curran suffered. given the evidence. generally’. nance operations shall be car- Judge McMahon allowed In the circumstances, the ried out when equipment is Mrs Curran to recover on the judge stated there was a breach The judge noted that Mrs shut down following grounds: of the common law duty to take Curran met all the requirements (b) where this is not possible, it • She was owed a general duty care; Cadburys attracted liabili- and there was nothing to pre- shall be necessary to take appro- of care on proximity and ty vicariously through the neg- vent her from recovering. He priate protection measures for neighbourhood principles, ligence of its employees. Mrs posed the question as to the carrying out of such opera- and there had been a breach Curran suffered a compensat- whether an unwitting partici- tions or for such operations to be of that duty which caused able injury which was reason- pant in an accident who suffered carried out outside the area of her reasonably foreseeable ably foreseeable in the circum- psychiatric illness could success- danger’. psychiatric harm. Further, stances. fully sue a defendant who, there were no good policy Liability must follow, he said, through his negligence, put the Mrs Curran alleged, among reasons in her case which unless there were public policy plaintiff in a position that she other things, a breach of this should deny the duty of care reasons which would operate thinks she has killed or caused provision. Judge McMahon • She complied with the five against Mrs Curran. He noted serious bodily injury to a fellow found Cadburys in breach of conditions laid down by that evidentiary problems for employee. Judge McMahon had this regulation, and since Hamilton CJ in Kelly v proving psychiatric illness in no doubt on principle and under Cadburys should have foreseen Hennessy Ireland were exaggerated. The • She was an ‘involuntary par- evidentiary issues are no more ticipant’ due to Cadburys’ difficult than proof required in negligence some types of back injuries Having held Mrs Curran suffered a very unpleasant • Cadburys was in breach of a which are not detectable by x- experience which had a serious effect on her emotion- statutory duty which resulted ray or scanning process. al life for three-and-a-half years, that her family life and in ‘an impairment of Mrs Judge McMahon considered her social contacts had been fractured (she was on the Curran’s physical or mental the general conditions neces- mend but there was some way to go before she was condition’. G sary to recover in nervous shock back to her old self), Judge McMahon awarded her cases and referred to the criteria £12,000 for pain and suffering to date, and £5,000 This judgment was summarised by set out by Hamilton CJ in Kelly. for future pain and suffering. To this, he added £1,700 solicitor Dr Eamonn Hall from a Judge McMahon quoted as fol- for agreed special damages, making a total of written judgment of Judge Bryan lows from the judgment of the £18,700. He also awarded costs to Mrs Curran. McMahon which is available in

chief justice: THE AWARD the Law Society library.

39 Law Society Gazette May 2000 Briefing Update

News from Ireland’s on-line legal awareness service Compiled by John X Kelly of FirstLaw

CHILDREN breach of trust – breach of fiduciary furniture in question. The plain- have complied with. The plain- duty – duties of directors – whether tiff subsequently claimed that he tiff was not satisfied with the dis- Adoption and family law defendants had made a prima facie had entered into the settlement covery made and sought further Family law – children – welfare – defence – Companies Act, 1963, on the basis of a representation and better discovery. The High adoption – An Bord Uchtála – cus- section 390 which was untrue and now Court rejected the application tody – fit person order – definition The plaintiff and the defendants sought rescission of the said set- and the plaintiff appealed. The of ‘abandonment’ – whether child had been involved in a business tlement. McCracken J held that Supreme Court dismissed the had been abandoned by parents – venture. The business relation- the onus to prove the represen- appeal, holding that the plaintiff whether ethnic or cultural back- ship eventually broke down and tation was untrue lay on the had failed to satisfy the court ground of child a consideration in the business itself declined. The plaintiff and this onus had not that there was further documen- making adoption order – whether plaintiff sued the defendants, been discharged. Accordingly, tation in existence in the posses- adoption order should be made – alleging that the defendants the relief sought was refused. In sion of the defendants which was Adoption Act, 1988, ss2, 3 – were responsible for a downturn a separate matter, McCracken J relevant to the case and had not Children Act 1908 in business. The plaintiff held that the resolution purport- yet been discovered. The High Court had granted brought a motion for judgment edly passed by the plaintiff com- Phelan v Goodman, Supreme the applicant an order that An in default of defence and the pany (the second plaintiff) of Court, 24/01/2000 [FL2406] Bord Uchtála issue a declaration defendants in reply sought notice of the intention to issue authorising the adoption of the orders for security of costs. Barr proceedings was not validly Insolvency child at the centre of the dis- J was satisfied that the defen- passed as all the shareholders Liquidation – official liquidator’s pute. The trial judge had found dants had a prima facie defence to were not notified. Accordingly, costs – connected companies – that the child had been subject the claim of the plaintiff. In view the second plaintiff was not method of calculation – exercise of to ill-treatment by his parents of all the circumstances, the legally involved with the pro- court’s discretion – whether liquida- and that this had amounted to defendants had demonstrated ceedings. tor entitled to payment of fees by abandonment on their part. The that they were entitled to the Colthurst and Tenips Ltd reference to gross realisation of com- parents of the child appealed orders for security of costs that v Colthurst, High Court, panies involved – Companies Act, against this order. The Supreme they were seeking. McCracken J, 09/02/2000 1963, s228 – Insurance (No 2) Court upheld the order of the Wexford Rope v Gaynor and [FL2278] Act, 1983 High Court. On the evidence Modler, High Court, Barr J, The application concerned the presented in the High Court, 06/03/2000 [FL2537] Further and better discovery liquidation of a number of com- the trial judge was entitled to Allegation that full disclosure of rel- panies in the PMPA Group. The hold that the injuries the child Contract, landlord and tenant evant documentation not made – liquidation had been in progress had suffered were caused by his Contract – mistake – rescission – that defendants conspired against for a number of years. In con- parents. The child had suffered trust property – misrepresentation – the plaintiff – whether court should junction with the liquidation, an substantial physical and psycho- settlement reached – ownership of look behind affidavit of discovery – administrator had been appoint- logical damage. The trial judge property – evidence of legal counsel whether court should order further ed pursuant to the provisions of was entitled to come to the con- involved in negotiations – state of and better discovery – Companies the Insurance (No 2) Act, 1983. clusion that the parents had in mind of parties – company law – (Amendment) Act, 1990 The liquidator sought payment effect ‘abandoned’ their child as directors’ meeting – notice of meet- The plaintiff had been involved of fees for the work done and set out under section 3 of the ing – advice of accountant – in a business venture with the calculated the amount by allocat- Adoption Act, 1988. The appeal whether settlement included certain second defendant. The plaintiff ing the hours worked to the var- would therefore be dismissed. property – whether proceedings by subsequently alleged that the ious companies by reference to Southern Health Board v An plaintiff company properly autho- second defendant had acted in their gross realisations. In effect, Bord Uchtála and MO’D, rised – Companies Act, 1963, sec- concert with the first defendant this meant that the liquidator Supreme Court, 11/07/99 tions 132, 134 – Companies Act, to bring about a state of dead- attributed the hours worked to [FL2378] 1990, section 193 lock in the business venture, companies in the group that had The dispute centered around the forcing the plaintiff to sell his assets behind them regardless of ownership of certain pieces of stake in the venture at a substan- the actual amount of hours COMPANY furniture which were housed in tial undervalue. The plaintiff worked on behalf of those com- Blarney Castle. The plaintiff had initiated proceedings against panies. The administrator was Contract and costs entered into a settlement where- the defendants. The plaintiff concerned that this would result Company law – practice – security by he purported to recognise the brought a motion of discovery in the assets of Car for costs – breach of contract – ownership by the defendant of which the defendants claimed to Replacements Limited (one of

40 Law Society Gazette May 2000 Briefing the companies in the group) CONSTITUTIONAL the Supreme Court ordered that Sexual offences being used to pay the liquidator’s the case be retried. The plaintiff Prohibition – trial – constitution – fees and brought the present Financial services and moved an application to have the denial of fair procedures – judicial application. Murphy J held that, negligence defence of partial justification review – applicant charged with sex- despite its infirmities, the Proceeds of claim – fire policy – struck out. The application was ual offences against children – appli- methodology proposed by the property – land law – family home dismissed and the plaintiff cant sought to prevent trial from liquidator was the best solution – allegations of malpractice against appealed. The Supreme Court proceeding – applicant claimed that in view of all the circumstances solicitors – affidavit stated that dismissed the appeal, holding length of delay between date of and dismissed the application. property in question was not family that the defendants were entitled alleged offences and prosecution of Car Replacements (In Liquida- home – whether statement of claim to rely on whatever defences offences was so inordinate as to tion), High Court, Murphy J, disclosed any cause of action – were available to them. deprive applicant of fair trial – 15/12/99 [FL2270] whether action against defendant’s Murphy v Times Newspapers Offences Against the Person Act solicitors well-founded – whether Ltd (& Others), Supreme 1861, sections 47, 62 Local government and proceedings vexatious – Family Court, 17/01/2000 [FL2437] The applicant had been charged planning Home Protection Act, 1976 – with a number of sexual offences Planning – development – local Rules of the superior courts, 1986, Practice and procedure alleged to have occurred in a peri- government – plaintiff applied for order 19, rule 28 Self-incrimination – right to silence od between 1967 and 1974. The planning permission – permission The plaintiffs had initiated pro- – privacy – confidentiality – refusal applicant sought to prohibit the initially refused but granted on ceedings against the defendants to answer questions – judicial impending trial from proceeding. appeal – applicant company formed claiming that they had been review – judges’ rules – statutory The applicant was first inter- for judicial review proceedings – wrongly deprived of proceeds interpretation – evidence received by viewed in relation to the alleged locus standi of applicant – security from a fire policy. As part of the judge of the District Court for the offences in 1995. The respondent for costs – pre-emptive costs order – proceedings, the plaintiffs purpose of investigation in France – contended that in cases such as discretion of court – whether appli- alleged that the solicitors who role of District Court – whether these, involving alleged sexual cant obliged to furnish security for had acted on behalf of the first- applicant obliged to answer ques- assaults on children, special fac- costs – Local Government named defendants were guilty of tions posed – whether district judge tors intervened particularly in (Planning and Development) negligence. The solicitors entitled to hold witness in contempt regard to the length of time it may Act, 1963 – Companies Act, brought a motion seeking to for refusal to answer questions – take for the allegations to surface. 1963, section 390 – Courts have the claim against them dis- Petty Sessions (Ireland) Act McGuinness J rejected the argu- (Supplemental Provisions) Act, missed. The Supreme Court 1851, section 13 – Criminal ment that the delay involved 1961 – Rules of the Superior granted the application, holding Justice Act, 1984, section 4 – should prevent the trial from pro- Courts, 1986 (SI 84), order 84, that the solicitors had merely Criminal Justice Act, 1994, sec- ceeding. The difficulties that the rule 20(7),order 99, rule 1(1) acted on foot of instructions tion 51 – Bunreacht na hÉireann, applicant may face could be dealt The second-named respondent given to them. There was article 34 with in rulings by the trial judge. (McDonalds) had been granted accordingly no cause of action The applicant was being ques- The application was dismissed. planning permission on appeal in against the solicitors and this tioned in regard to an investiga- SM v DPP, High Court, respect of an intended develop- part of the claim would be dis- tion conducted pursuant to sec- McGuinness J, 20/12/99 ment. The applicant had been missed. tion 51 of the Criminal Justice [FL2400] formed by objectors who sought Moffitt v Bank of Ireland, Act, 1994. The applicant judicial review of the decision to Supreme Court, 19/02/99 declined to answer certain ques- grant permission. McDonalds [FL2075] tions, and sought judicial review DAMAGES sought an order for security of of the respondent’s decision to costs. The applicant opposed compel him to answer those Garda Síochána such an order and were them- CRIMINAL questions. Held by McGuinness To rt – personal injuries – garda com- selves seeking a pre-emptive J in refusing the relief sought. pensation – recurring back injury – costs order that would prevent Defamation In general terms, the applicant whether compensation adequate – the applicant being made liable Allegation that individual involved should be compelled to answer Garda Síochána (Compensation) for costs of any other parties that with Provisional IRA – defendants questions posed in the inquiry Act, 1941 – Garda Síochána may arise in the proceedings. pleading partial justification – mit- and did not have a right to (Compensation) (Amendment) Laffoy J held that the applicant igation of damages – further and silence. The applicant would be Act, 1945 had not established any basis for better particulars sought – doctrine entitled to claim the privilege The applicant had sustained an entitlement to a pre-emptive of res judicata – Defamation Act, against self-incrimination if it injuries while on duty in a patrol costs order and held that 1961, section 22 could be shown that there was a car. Another accident occurred McDonalds were in fact entitled The plaintiff had sued the defen- realistic prospect that answers which compounded the injuries to an order of costs against the dants on the basis that an article furnished could be used against already received. The applicant applicant and stayed all further appearing in the Sunday Times him in criminal proceedings. brought a claim for compensa- proceedings pending the fur- had referred to him as one of the The applicant had as yet not tion. Murphy J held that in the nishing of security. organisers behind an IRA bomb- produced any such evidence. circumstances an award of Village Residents v An Bord ing campaign. The plaintiff had de Gortari v Minister for £25,000 seemed appropriate. Pleanála (& Others), High been successful in the High Justice, High Court, Walsh v Minister for Finance, Court, Laffoy J, 23/03/2000 Court and had been awarded McGuin-ness J, 18/01/2000 High Court, Murphy J, [FL2543] £15,000 damages. On appeal, [FL2536] 13/03/2000 [FL2505]

41 Law Society Gazette May 2000 Briefing

DISCRIMINATION The plaintiff had been informed gence of the plaintiff, the plaintiff’s solicitor seeking charging that the defendants’ personnel employer was also negligent in order – application by plaintiff’s Indirect sex discrimination manager proposed to conduct failing to provide a safe system of solicitor to secure costs awarded to Equal treatment – self-employed – an enquiry into allegations that work. Accordingly, the defen- plaintiff from orders relating to first professions – doctors – indirect sex the plaintiff had made improper dant was held to be liable for the and second defendants – other defen- discrimination – pension use of the defendants’ stud facil- accident to the extent of 60%, dants proposing to issue garnishee The European Court of Justice ities and resources. The plaintiff while the plaintiff was found to proceedings to attach all sums due to has held that a self-employed had brought proceedings claim- have negligently contributed to plaintiff – Legal Practitioners Act person may claim indirect sex ing that the proposed course of the incident for the remaining 1876, section 3 discrimination if, after an indi- the inquiry was unfair and that 40%. The case was then remit- The applicant had acted as the vidual assessment of each rule or the personnel manager was not ted to the High Court for an plaintiff’s solicitor. The plaintiff provision applicable to her/his a suitable person to head the assessment of the damages. was a building company which profession, the national court inquiry. Laffoy J granted the McSweeney v McCarthy, had been placed in receivership. finds that they statistically affect a relief sought on 22 December Supreme Court, 28/01/2000 The plaintiff had orders for costs significant number of persons, 1998. Subsequently, when the [FL2416] made in favour of it against the unless it is shown that the meas- plaintiff returned to work, the first two defendants and orders ures in question are objectively defendants questioned the of costs made against it in favour justified by, for example, the pur- plaintiff on a number of issues ENVIRONMENTAL of the third, fourth and fifth suit of a legitimate aim of the and suspended the plaintiff. The defendants. The plaintiff’s solici- social policy of the member state. plaintiff in the present proceed- Land law tor sought a charging order in ECJ, Case C-226/98, 06/04/ ings claimed that the defendants Injunction – dredging operation – respect of the property of the 2000 [FL2509] had acted in breach of the previ- destruction of habitat – wild birds – plaintiff by virtue of section 3 of ous court orders. Budd J upheld alternate compensatory feeding the Legal Practitioners Act 1876. Positive discrimination the arguments of the plaintiff ground – environmental impact The Supreme Court held the Equal treatment – sex discrimina- and ordered that the injunctions statement – role of Dúchas – application was properly made tion – employment – public adminis- restraining the defendants from whether respondent complying with and the solicitor was entitled to a tration – positive discrimination concluding the inquiry contin- terms of original order – whether charging order in respect of the In a significant judgment, the ue. Budd J also held that the exact boundaries of area in question monies due and owing to it by European Court of Justice has defendants, due to their disre- had been set out the plaintiff under the orders of confirmed the acceptability of gard of previous orders, be The appellant had issued pro- costs relating to the first and sec- positive discrimination in EU made liable for the costs of ceedings against the respondent ond defendants. law, provided that national meas- motions and the previous inter- seeking an injunction restraining Lismore Buildings Ltd v Bank of ures did not impose absolute locutory hearing on a solicitor- the respondent from continuing Ireland, Supreme Court, preferential treatment in favour and-client basis. with certain works in the Boyne 28/01/2000 [FL2405] of women. Charlton v Aga Khan’s Stud, Estuary. On 10 September 1999, ECJ, Case C-158/97, 28/03/ High Court, Budd J, O’Sullivan J had granted the 2000 [FL2447] 22/02/2000 [FL2458] order sought. As further disputes INSOLVENCY arose, the matter then proceeded Negligence to the Supreme Court where it Practice and procedure EMPLOYMENT Personal injuries – employer’s lia- was held that proceedings be Bankruptcy summons – service of bility – safe system of work – duty of remitted to the High Court to summons – practice – application for Injunction care – negligence – contributory determine whether the respon- substitution of service – public Disciplinary inquiry – natural jus- negligence – accident at work – dent was complying with the advertisement – petition for adjudi- tice – bias – pre-judgment – con- appeal – findings of fact by trial original court order. O’Sullivan J cation of bankruptcy – Irish tempt – orders for attachment and judge – supervision – use of ladder – held that, although the respon- Bankrupt and Insolvent Act 1857 committal – costs – nemo iudex in experienced workman – Civil dent was in breach of the origi- – Bankruptcy (Ireland) sua causa – audi alteram partem – Liability Act, 1961 nal court order, the infractions Amendment Act 1872 – contract of employment – computer The plaintiff had been injured in in question were of a more tech- Bankruptcy Act, 1988 – Statute records – deletion of computer files – an accident at work while climb- nical nature rather than a sub- of Limitations, 1957 – Rules of sequestration of assets – whether ing a ladder. The plaintiff stantial one. Nevertheless, the the Supreme Court (Ireland) plaintiff entitled to salary while sus- alleged that the employer had injunction would continue until 1905 – Rules of the Superior pended – whether defendants in been negligent in not providing a map denoting the area to be Courts, 1986 – Rules of the breach of court orders – whether a safe system of work. The worked upon had been agreed Superior Courts, 1989 defendants’ agent appropriate person defendant claimed that the and clearly mapped out. The petitioner sought a court to carry out investigation – whether plaintiff was an experienced Dubsky v Drogheda Port Co, order permitting the service of plaintiff was agricultural worker – workman who had known of the High Court, O’Sullivan J, the petition for adjudication of whether appropriate to award costs dangers involved and was entire- 22/02/2000 [FL2401] bankruptcy by way of public on a solicitor-and-client basis – ly responsible for the accident. advertisement. Laffoy J granted Industrial Relations Act, 1990 – The plaintiff’s claim was dis- Solicitor’s lien the order sought. The judge was Code of Practice on Disciplinary missed in the High Court. On Order for costs made against first satisfied that such an order Procedures (Declaration) Order appeal, the Supreme Court held and second defendants – appeal – should only be granted in cir- 1996 that notwithstanding the negli- plaintiff company in liquidation – cumstances where all the other

42 Law Society Gazette May 2000 Briefing modes of service permitted be proved throughout the com- title – allegations of trespass – prop- rant making the orders sought. under the relevant legislation munity, not just in a substantial erties in question not corresponding In view, however, of the improp- had not proved feasible. In bal- part of it. with relevant folio maps – sub-divi- er use of portacabins on the site, ancing the respective rights of Ford Motor Company v OHIM, sion of original property – whether which the respondents had the petitioning creditor and that Case T-91/99, 30/03/2000 evidence of register conclusive – undertaken to remove, the costs of the debtor, the court was satis- [FL2474] Statute of Limitations, 1957 – of the application as between the fied that it was just to permit the Registration of Title Act, 1964, applicant and the second respon- publication of such a notice by sections 31(1), 72, 85 dent would be awarded to the way of public advertisement. JUDICIAL REVIEW The parties in the present pro- applicant. Bank of Ireland v DH, High ceedings were neighbours with Fingal County Council v RFS Court, Laffoy J, 20/03/2000 Planning adjoining lands. A dispute arose Ltd, High Court, Morris P, [FL2533] Local government – judicial review as to the exact boundaries of 06/02/2000 [FL2488] – locus standi – objections by a third each property as the properties party – contents of site notice – defects as occupied seemed to differ INTELLECTUAL in site notice – positioning of notice – from the boundaries as delineat- NEGLIGENCE PROPERTY whether applicant or members of ed in the relevant Land Registry the public misled – whether argu- folio maps. In the Circuit Court, Road traffic Trade marks/patents ments on behalf of applicant were an order had been made holding To rt – negligence – personal injuries Intellectual property – community trivial – whether applicant had that the defendants were entitled – practice – equity – whether claim trade marks – distinctive character made out substantial grounds to seek to have the relevant Land statute-barred – preliminary issue – – trade mark devoid of distinctive judicial review – Local Govern- Registry map rectified. The delay – correspondence – settlement character in English and French – ment (Planning and Develop- plaintiffs appealed against the negotiations – whether actions and distinctiveness needs to be proved in ment) Acts, 1963-76 – Local order. Laffoy J held that the representations of defendants both countries Government (Planning and plaintiffs had not established any induced delay by plaintiff in issuing Ford’s application for registra- Development) Regulations, 1994 basis for resisting rectification, summons – Statute of tion of Options as a community The applicant had sought leave affirmed the order of the Circuit Limitations, 1957 trade mark was refused on the by way of judicial review to chal- Court and dismissed the appeal. The plaintiff had been involved basis that Options was devoid of lenge a planning decision. Most Boyle v Connaughton, High in a motor accident thereby sus- any distinctive character in of the grounds submitted by the Court, Laffoy J, 21/03/2000 taining injuries. The accident French and English. On appeal, applicant were in connection [FL2531] occurred in April 1995 and the which was dismissed, the appli- with the relevant statutory site plenary summons was not issued cant produced evidence to show notice. The applicant com- Planning until December 1998. The plain- that that trade mark had been plained that there were a num- Local government – pre-existing tiff prima facie accepted that the used in the supply of the servic- ber of defects in the site notice use – injunction sought – unautho- action was statute-barred but es concerned in Belgium, that had the effect of misleading rised development – warehousing of contended that the delay in issu- Denmark, the Netherlands, the public. This included an dry goods – packaging and distribu- ing the plenary summons was Portugal, Sweden and the UK, allegation that the proposed tion – costs – whether sufficient evi- due to the actions of the defen- but not France. Under article development had been insuffi- dence to grant orders sought – dants and that they were there- 7(1) of the Community Trade ciently described. It was also whether applicant had discharged fore estopped from denying the Mark Regulation, trade marks contended that the contents of onus of proof – whether develop- claim of the plaintiff. Kelly J was which are devoid of any distinc- the notice did not conform to ment in question was exempt – satisfied that the actions of the tive character shall not be regis- the relevant statutory regula- Local Government (Planning defendants’ insurance company tered, notwithstanding that the tions. O’Higgins J rejected the and Development) Act, 1963 – were such that it would now be grounds of non-registrability arguments of the applicant, Local Government (Planning inequitable for the claim to be relate to only parts of the com- holding that the grounds and Development) Act, 1976 – denied on the basis of the Statute munity, unless, under article advanced by the applicant were Local Government (Planning of Limitations. Accordingly, Kelly 7(3), the trade mark has become not substantial. Accordingly, and Development) Act, 1992, J struck out the relevant portion distinctive in relation to the leave to seek judicial review was section 19 of the defendants’ defence and goods or services for which reg- refused. The planning authority brought instructed that the case now pro- istration is requested in conse- Spring View v Cavan proceedings seeking to restrain ceed to trial. quence of the use which has Developments Ltd, High development which was alleged Ryan v Connolly, High Court, been made of it. Before the Court, O’Higgins J, 29/09/99 to be unauthorised. The respon- Kelly J, 29/02/2000 [FL2529] G court, the applicant asserted that [FL2395] dents claimed that certain uses distinctiveness acquired through of the lands in question had been The information contained here is use can be demonstrated in a in existence prior to the enact- taken from FirstLaw’s Legal substantial part of the EC fell LAND LAW ment of the 1963 legislation and Current Awareness Service, under the article 7(3) exception. so was exempt and therefore did published every day on the Internet at The Court of First Instance Conveyancing not require planning permission. www.firstlaw.ie. Full texts are ruled that, in order to claim that Ownership of lands – Land Registry Morris P held that although a available on-line. For more a trade mark’s distinctive charac- – dispute – possession – adjoining serious issue had been raised, the information, contact bartdaly@ ter has been acquired by use, neighbours – mapping – rectifica- applicant had not discharged the firstlaw.ie or tel: 01 809 0400, fax: such distinctive character must tion – extinguishment of original necessary onus of proof to war- 01 809 0409.

43 Law Society Gazette May 2000 LAW AGENT

PARLIAMENTARY AND LAW REFORM EXECUTIVE The Irish Auctioneers & Valuers Institute

his position reflects the Law Society’s commitment to mak- Founded in 1922, the IAVI is Ireland's principal representa- Ting a valuable contribution in the public interest of law mak- tive body in the property profession, with 1,500 individual ing and law reform. members and over 500 Member Firms.

Parliamentary duties will include reviewing draft legislation and The IAVI intends to appoint a Law Agent to advise its secre- co-operating with the Law Society’s specialist committees and tariat, officers and National Council on all legal matters and policy-makers to provide expert comment and analysis to the to provide occasional advice to IAVI members and Member legislature. In relation to law reform, the executive will act as Firms on legal matters arising in relation to their practices. secretary to the society’s Law Reform Committee, will research and participate in the drafting of policy papers and bills and will The successful candidate will be a qualified solicitor, with at assist in promoting their ultimate adoption into law. least 10 years experience, working in a legal office with a wide general practice. He or she will also be expected to The successful candidate for this exciting position will be a solic- have a strong knowledge of all aspects of property law and itor, barrister or legal academic with an interest in law reform and agency contract law. public policy and with excellent legal, analytical and drafting skills. Written expressions of interest are invited from solicitors by 31st May 2000 and should be addressed to the Chief This is a senior position with an attractive remuneration package Executive. for the right candidate.

Applications with full curriculum vitae should be forwarded IRISH AUCTIONEERS & VALUERS in the strictest confidence by 19 May 2000 to Ken Murphy, INSTITUTE Director General, Law Society of Ireland, Blackhall Place, 38 MERRION SQUARE, DUBLIN 2 Dublin 7 (marked Ref, PLR Executive). Briefing Eurlegal

News from the EU and International Law Committee Edited by TP Kennedy, director of education, Law Society of Ireland Defamation across borders in the European Union

n the area of defamation, as 1993. Austria, Sweden and the damage was suffered, the rine in the water damaged Bier’s Iwith all other civil actions, Finland acceded to the Brussels jurisdiction with which the tort seedbeds. Bier brought an three sets of rules apply when convention in 1996. The had its closest connection or the action against Mines de Potasse suing a foreign defendant. Jurisdiction of Courts and jurisdiction where the last of a in the Dutch courts. The When suing defendants domi- Enforcement of Judgments Act, series of tortious acts occurred. French defendant argued that a ciled in the EU, the rules set out 1998 implements this conven- Defamation is frequently a Dutch court was not competent in the 1968 Brussels convention on tion into Irish law. This act con- trans-national tort. Where a to hear the dispute. If a tort had jurisdiction and the enforcement of solidates and replaces all the defamatory article appears in a been committed, the place of judgments apply. In the case of preceding Irish legislation. newspaper which is printed in the harmful event was France, defendants domiciled in a Annexed to the act is a consoli- one jurisdiction, circulated in a where the alleged pollutant had European Free Trade Area dated version of the convention, number of other jurisdictions, been discharged into the Rhine. (EFTA) member state, the very containing all the amendments and the defamed person is Thus, if article 5(3) could be similar rules in the Lugano con- made to it. domiciled in a jurisdiction invoked, France was the place vention on jurisdiction and the Article 5 of the Brussels con- where the newspaper has a lim- of the harmful event. This argu- enforcement of judgments in civil vention sets out a number of ited circulation, which forum ment was successful, at first and commercial matters apply. exceptions to the general juris- should hear the case? Where instance. Bier appealed to the Finally, when suing a foreign dictional rule established by has damage been suffered: Hague Court of Appeal, which defendant domiciled in another article 2: that persons domiciled where the newspaper is printed? referred the matter to the ECJ. state, the old common law rules in a contracting state be sued in where it is circulated? or where The Dutch court asked whether apply. the courts of that state. One of damage is done to the person’s ‘the place where the harmful the most significant of these reputation? If the latter, what event occurred’ was to be con- Suing a defendant domiciled exceptions is that for torts, con- rules are to be applied to estab- strued as meaning the place in the EU/EEA tained in article 5(3). It provides lish damage? where the damage occurred or The Jurisdiction of Courts and the that: ‘A person domiciled in a where the event which caused Enforcement of Judgments Act, contracting state may, in anoth- The framework established the damage took place. 1988 implemented the Brussels er contracting state, be sued ... Case 21/76 Handelskwekerij GJ The ECJ held that ‘the place convention into Irish domestic in matters relating to tort, delict Bier BV and Stichtung Reinwater where the harmful event law. The act took effect on 1 or quasi-delict, in the courts for Foundation v Mines de Potasse occurred’ was to be given an April 1989. Section 2 provides the place where the harmful d’Alsace SA ([1976] ECR 1735) independent interpretation. that the convention is to be treat- event occurred ...’. is one of the most important The court noted that the special ed like any other Irish statute, A plaintiff thus has a choice decisions of the ECJ on the jurisdictional grounds in article except that it is to be interpreted of jurisdictions in a tortious dis- interpretation of torts. It intro- 5, which exist by way of an in accordance with the decisions pute. He can elect to bring an duced a certain measure of clari- exception to article 2, were of the European Court of Justice action in the state of the defen- ty into the interpretation of arti- introduced due to the existence (ECJ). In addition, in interpret- dant’s domicile or in the courts cle 5(3) of the convention and ‘in certain clearly defined situa- ing the Brussels convention, regard of ‘the place where the harmful established a basic framework tions, of a particularly close can be had to the interpretative event occurred’. In many cases, for ascertaining jurisdiction in connecting factor between a report, which was drawn up by it is relatively easy to point to a multinational tort disputes. dispute and the court which Prof Jenard. The ECJ has juris- single harmful event occurring The case concerned cross- may be called upon to hear it, diction to give rulings on the in a single state. However, in border pollution. Mines de with a view to the efficacious interpretation of the convention the case of a trans-national tort, Potasse d’Alsace SA allegedly conduct of the proceedings’. when a court designated in arti- the phrase is more ambiguous. discharged 11,000 tons of chlo- The court held that there was cle 2 of the 1971 protocol makes The phrase was left intentional- ride into the river Rhine on a significant connection in rela- a reference. ly vague by the drafters of the a daily basis. GJ Bier BV ran tion to both the place of the The Brussels convention was convention. When elements of large garden nurseries near causal event and the place of subsequently amended by the the harmful event take place in Rotterdam in the Netherlands, injury, as each could be helpful San Sebastian convention and this more than one jurisdiction, using water from the Rhine to in relation to the necessary evi- was given effect in Ireland by which one takes jurisdiction? It water and irrigate its seedbeds. dence and the conduct of the the Jurisdiction of Courts and could be the place where the The high salinity of the Rhine proceedings. The court found it Enforcement of Judgments Act, principal act took place, where due to the presence of the chlo- inappropriate to opt for one

45 Law Society Gazette May 2000 Briefing jurisdiction to the exclusion of harmful event occurred” within smaller daily circulation of assume jurisdiction under article the other, as there were signifi- the meaning of article 5(3) of approximately 15,500 copies 5(3) of the Brussels convention cant connecting factors to both. the convention may cover both outside France. In relation to once it was shown that there was The court held, therefore, that: the place where the damage this latter circulation, only 230 an arguable case on which each ‘Where the place of the hap- occurred and the place of the copies were sold in England and plaintiff could rely to establish a pening of the event which may event giving rise to it, that term Wales, notably only five in publication carrying with it the give rise to liability in tort, cannot, however, be construed Yorkshire where the first plain- presumption of damage. delict or quasi-delict and the so extensively as to encompass tiff resided. The defendant appealed to place where that event results in any place where the adverse The plaintiffs claimed dam- the House of Lords, arguing damage are not identical, the consequences of an event that ages for harm caused by the pub- that the French courts had expression “the place where the has already caused actual dam- lication of a defamatory newspa- jurisdiction in the dispute under harmful event occurred” in arti- age elsewhere can be felt. per article in France Soir on 27 article 2, and that the English cle 5(3) ... must be understood ‘Consequently, that term September 1989. It referred to courts did not have jurisdiction as being intended to cover both cannot be construed as includ- an alleged investigation by under article 5(3) as the ‘place the place where the damage ing the place where, as in the French police into the launder- where the harmful event occurred and the place of the present case, the victim claims ing of money obtained from the occurred’ was France and no event giving rise to it. to have suffered financial loss sale of drugs by, in particular, the harmful event had taken place ‘The result is that the defen- consequential upon initial dam- Paris bureau de change in which in England. The House of dant may be sued, at the option age arising and suffered by him Ms Shevill was temporarily Lords, considering that the of the plaintiff, either in the in another contracting state’. employed for three months in proceedings raised questions of courts for the place where the the summer of 1989, and to interpretation of the conven- damage occurred or in the Specific application to whom reference by name was tion, decided to stay the pro- courts for the place of the event defamation made in the article. In ceedings pending a preliminary which gives rise to and is at the The harm in Bier was material November 1989, the defendants ruling by the ECJ. origin of that damage’. property damage. However, it is published a retraction and apol- In the course of Shevill, a Thus, the plaintiff has the clear that the decision in Bier is ogy in respect of Ms Shevill and number of jurisdictional option of suing the defendant in not confined to cases of nui- Chequepoint SARL. The action, approaches were examined. A either the place where the dam- sance against land. The princi- subsequent to amendments to strict application of Bier could age occurred or in the place of ple extends to all torts involving the statement of claim, related lead to a multiplicity of actions. the causal event giving rise to a physical injury to person or solely to publication in England This spectre of celebrity forum the damage. property and was arguably of and Wales, not France. The shopping caused many to recoil wider application. In subse- defendants sought to strike out from a strict application and Refinement of the rule quent decisions, the court has the claim, arguing that there was argue that Bier could not be The rule in Bier can be criti- extended the rule to cases no jurisdiction as no harmful applied to defamation. Some cised as giving rise to fragmen- involving other torts and modi- event had occurred in England. commentators felt that Bier did tation of jurisdiction. In a num- fied it in its application to Before the Court of Appeal, it not preclude the eventual adop- ber of decisions, the court has multi-state tortious disputes was argued by counsel for the tion of specific rules for partic- advocated caution in the use of involving economic loss. defendant that none of the plain- ular torts, such as a rule that in the rule. It has limited the The key decision applying tiffs had suffered any actual defamation the place where the opportunities for ‘forum shop- the rule to defamation is Case damage so as to constitute a harmful event occurred would ping’ and brought the rule into C-68/93 Shevill v Presse Alliance harmful event within the juris- be that of publication to a third line with the primary purpose ([1995] ECR I-415). It extends diction. There was no evidence party. No such rule was ever of the convention – to ensure and develops Bier. In the con- that there was anyone who could adopted. Another wrote of a certainty in the allocation of text of multi-state defamation, possibly have been affected who defamatory statement written, jurisdiction. the two decisions must be taken knew Ms Shevill or who had broadcast or posted in one state, The court in Case 220/88 together. access to any copies of the published in a second and caus- Dumez Bâtiment and Tracona v The first plaintiff, Fiona offending newspaper. These ing damage to reputations in a Hessische Landesbank ([1990] Shevill, domiciled in England submissions were based upon third. He said that it is the ECR I-49) made it clear that with her main residence in the necessity of demonstrating defendant’s act in the first state consequential financial loss suf- Yorkshire, was employed at a for the purposes of article 5(3) of which should be held to be the fered in one jurisdiction as a bureau de change operated by the convention that damage had harmful event. result of a tort in another juris- the fourth plaintiff, Cheque- actually been suffered, an Arising from the questions diction did not found a claim point SARL. Chequepoint approach which was inconsistent referred to it by the House of under article 5(3). Ricochet vic- SARL is a French enterprise with the English law, which Lords, the ECJ identified two tims are thus excluded. The operating a number of bureaux assumed that damage had been fundamental matters of inter- court made a similar finding in de change in France and else- suffered once the libel had been pretation. First, interpretative Case C-364/93 Marinari v where in Europe. The defen- established. guidance was needed on ‘the Lloyds Bank Plc ([1995] ECR I- dants publish the newspaper It was held by the Court of place where the harmful event 2719). In that case, the ECJ France Soir, a daily evening Appeal that, since the action was occurred’ in article 5(3), with a held: newspaper which has a large restricted to publication of the view to establishing which ‘Whilst it is recognised that circulation in France (in excess defamatory article in England court(s) had jurisdiction to hear the term “place where the of 200,000 copies daily), and a and Wales, the court could an action for damages for harm

46 Law Society Gazette May 2000 Briefing caused to the victim following The court of the place where from the convention itself and a was distributed and in which the distribution of a defamatory the publisher is established has number of the court’s decisions. victim claims to have suffered newspaper article in several con- jurisdiction to hear the whole The effect was that it was for injury to his reputation has juris- tracting states. Second, it had to action for all damage caused by the substantive English law diction to rule on the injury be decided whether, in deter- the unlawful act. That jurisdic- of defamation to determine caused in that state to the vic- mining if it had jurisdiction as tion will, as the court noted, whether the event in question tim’s reputation. The underlying court of the place where the generally coincide in any event was harmful and the evidence rationale for such a conclusion damage occurred pursuant to with the article 2 jurisdiction required to determine the exis- was founded by the court on the article 5(3), the national court based on the defendant’s domi- tence and extent of the harm. sound administration of justice was required to follow specific cile. The observations made in in that the state in which the rules different from those laid The courts of the contracting Bier in regard to physical or defamatory publication was dis- down by its national law in rela- state in which the publication pecuniary loss or damage have tributed and in which the victim tion to the criteria for assessing was distributed and in which now been expressly applied to a claims to have suffered injury to whether the event in question the victim claims to have suf- case involving injury to reputa- his reputation is best suited to was harmful and whether specif- fered injury to his reputation tion and the good name of both assess and determine the corre- ic rules were needed in relation have jurisdiction to rule on the natural and legal persons due to sponding damage. to the evidence required of the injury caused in that state to the a defamatory publication. In a existence and extent of the harm victim’s reputation. The court libel scenario where a newspa- Application of the rule alleged by the victim of the held that the state in which the per article is distributed in sev- Since the rule established by Bier defamation. defamatory publication is dis- eral contracting states, then, and developed in Shevill was The court first examined the tributed and in which the victim according to the court, the handed down, there have been concept of ‘the place where the claims to have suffered injury to place of the event giving rise to many cases which have applied harmful event occurred’. Article his reputation is best suited to the damage (causal event) can it. In the context of the identical 5(3) of the Brussels convention pro- assess and determine the corre- only be where the miscreant rules in the Lugano convention, vides special jurisdiction, by way sponding damage. publisher is established, that is, the English High Court in of derogation from the general The second limb of the judg- the place where the harmful Domicrest v Swiss Bank Corp principle in the first paragraph of ment focused on whether a event originated and from ([1998] 3 AII ER 577) applied article 2 of the convention, that national court was required to which the libel was issued and Shevill in a case of negligent mis- the courts of the contracting state follow specific rules different put into circulation. The court statement. Rix J held that: of the defendant’s domicile have from those laid down by its of the place where the publisher ‘The place where the harm- jurisdiction. The court examined national law in relation to the is established has jurisdiction to ful event giving rise to the dam- in some detail its decision in Bier criteria for assessing whether hear the whole action for all age occurs in a case of negligent as an interpretative aid to estab- the event in question is harmful damage caused by the unlawful misstatement is, by analogy lishing the place of the harmful and in relation to the evidence act. That jurisdiction will, as with the tort of defamation, event in the international libel required of the existence and the court noted, generally coin- where the misstatement origi- context. It stated that identical extent of the harm alleged by cide in any event with the arti- nates. It is there that the negli- principles apply to defamation as the victim of defamation. The cle 2 jurisdiction based on the gence, even if not every element to material damage and the place defendants argued that the defendant’s domicile. of the tort, is likely to take of the event giving rise to the plaintiff had not suffered any By similar reasoning to Bier, place; and for that and other damage no less than the place damage so as to constitute ‘a co-existent jurisdiction, at the reasons the place from which where the damage occurred harmful event’. There was no option of the plaintiff, was also the misstatement is put into cir- could constitute a significant evidence that the plaintiff’s rep- held to exist in the place where culation is as good a place in connecting factor from the point utations had actually been the damage occurred, otherwise which to found jurisdiction as of view of jurisdiction. Each of harmed or that those who knew article 5(3) of the convention the place where the misstate- them, depending on the circum- the plaintiff had access to any would be rendered superfluous. ment is acted on’. stances, could be particularly copies of the newspaper. The Where does the damage occur The principles in Shevill have helpful in relation to the evidence defendants argued that the in the case of an international also been applied in a number and the conduct of the proceed- principles in English law that libel published, for example, of Irish decisions. In Murray v ings. The court held that: assumed that damage is suffered throughout each individual Times Newspapers, (unreported, ‘In the case of a libel by a once a libel is established member state? The court has High Court, 12 December newspaper article distributed in should be disregarded in favour answered this question by stat- 1995; Supreme Court 29 July several contracting states, the of a common European inter- ing that the damage caused by a 1997), an Irish plaintiff argued place of the event giving rise to pretation of article 5(3) and defamatory publication occurs in that it was entitled to special the damage, within the meaning thus proof of actual damage to the places where the publication damages for harm caused to its of those judgments, can only be qualify England as the place was distributed and where the reputation in Ireland and the the place where the publisher of where the ‘harmful event’ victim claims to have suffered United Kingdom caused by an the newspaper in question is occurred. The court observed injury to her reputation. A mul- allegedly defamatory newspaper established, since that is the place that the object of the Brussels tiplicity of different fora will article published in the UK where the harmful event origi- convention was not to unify the have jurisdiction over the harm- by a UK-domiciled defendant. nated and from which the libel rules of substantive law and of ful events within their own par- Barron J (and subsequently the was issued and put into circula- procedure of the different con- ticular territory. The contracting Supreme Court) held that arti- tion’. tracting states. This was clear state in which the publication cle 5(3) did not entitle the

47 Law Society Gazette May 2000 Briefing plaintiff to seek such damages in compensation on a worldwide person to be sued in a particular or quasi-delict in the courts for the Irish courts. basis could be claimed is the jurisdiction he must have respon- the place where the event giving Barr J applied Shevill in the jurisdiction where the publisher sibility for the alleged harmful rise to the damage occurred or in context of an allegedly defama- is established. The plaintiffs had event occurring in that jurisdic- the courts for the place where the tory statement broadcast on tel- a choice of jurisdiction under tion. Kelly J rejected this argu- damage or part thereof was sus- evision in Ewin & Ors v Carlton article 5(3) and were free to ment. He pointed out that the tained’. Te l evision ([1997] ILRM 223). choose Ireland. He set aside a author’s contract with the pub- The proposed new article is The plaintiffs claimed damages suggestion that the defendants lisher authorised the publisher to identical to the previous provi- in Ireland in respect of a televi- had been using the convention publish the work worldwide. sion save that the Bier principle sion programme produced by to oppress the defendants. He Thus, applying the rule in Speight would now be incorporated Carlton and broadcast by ITN. pointed out it could be argued v Gospay, which had been into the text of the article itself. The defendant sought to have that the motivation of the plain- approved by the court in Ewin, However, it is now proposed to the Irish proceedings stayed on tiffs in choosing jurisdiction was the natural and probable conse- replace the Brussels convention the basis that the harmful event not a matter for the court. In quence of publication of the with a Regulation on jurisdiction required by article 5(3) to found any case, the defendants had not booklet was its republication in and enforcement of judgments in jurisdiction took place in the advanced any evidence showing Ireland. Given the proximity of civil and commercial matters. In UK. However, the programme that the plaintiff had been guilty the two countries and the high general, the proposed text of was seen in Ireland by approxi- of oppressive or unconscionable level of interest in the subject in the regulation contains fewer mately 111,000 viewers as it was behaviour in choosing Ireland. Ireland, it was almost inevitable changes to the articles on juris- distributed by cable and deflec- A similar conclusion was that it would be republished here. diction than did the original tor companies, and in certain reached by Kelly J in the cases The proceedings had been prop- proposal for a revised conven- parts of the country could be of Gerry Hunter v Gerald erly brought in Ireland and, tion. In this latest proposal, received by television viewers Duckworth & Co Ltd and Louis applying Shevill, the plaintiffs there is only one small change whose sets received signals from Blom Cooper and Hugh Callaghan could seek damages in respect of proposed for article 5(3). The Northern Ireland or Wales. Barr v Gerald Duckworth & Co Ltd the alleged harm done to their regulation provides that article J applied the rule in Speight v and Louis Blom Cooper (unre- reputations in Ireland. 5(3) will give jurisdiction to the Gospay ([1891] 60 LJQB 231) ported, 10 December 1999; see court of the place not only that the original publisher of a Irish Times, 17 January 2000). Looking to the future where the harmful event has defamatory statement is liable The plaintiffs were two of the The Brussels convention is current- occurred but also those where it for its re-publication or repeti- Birmingham Six. They argued ly being reviewed. The European may occur. G tion to a third person was the that statements in a booklet Commission in 1998 issued a natural and probable result of written by the second defendant communication setting out the TP Kennedy is the Law Society’s the original publication. Thus, and published by the first defen- text of a revised convention. The director of education. This is an applying Shevill, Barr J held that dant had defamed them. The revised article 5(3) reads as fol- abbreviated version of a paper harm had been done in Ireland. second defendant contested the lows (changes in italics): presented to a conference hosted by Damages in the case would be jurisdiction of the Irish courts. ‘A person habitually resident in the TCD School of Law on ‘Recent limited to the harm done to He argued that he had not a contracting state may, in anoth- developments in defamation and their reputations in Ireland. The authorised publication of the er contracting state, be sued: (3) contempt of court’ in January of only universal jurisdiction where booklet in Ireland and that for a in matters relating to tort, delict this year. Law Society Bushmills Millenium Malt 25 years old

£85 (plus £9 post and packaging) First come, first served Only one bottle per member

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48 Law Society Gazette May 2000 Briefing Recent developments in European law FREE MOVEMENT OF Another v GB-Unic, judgment of 1 acted on in the same manner as side the scope of the mutual WORKERS July 1999. Sebago is a US com- a judgment, provided that they recognition directives (89/48 and pany that was the proprietor of contain an express provision to 92/51), the competent authori- Case C-337/97 CPM Meeusen v the trademarks, ‘Docksides’ and that effect. Christensen, a Danish ties of the host state must take Hoofddirectie van de Informatie ‘Sebago’, registered for shoes. resident, had signed three such into account a qualification Beheer Groep, judgment of 8 June GB, a Belgian company adver- acknowledgements in favour of obtained in another state by com- 1999. Dutch law grants student tised ‘Docksides Sebago’ shoes Unibank. The documents stated paring the specialised knowledge finance to Dutch students or for- for sale in its hypermarkets. that they could be used as a basis and abilities certified by that eign students resident in the These shoes had been manufac- for execution. The ECJ was asked qualification with the knowledge Netherlands in respect of whom tured in El Salvador and pur- whether an enforceable acknowl- and qualifications required by there is an international agree- chased from a Belgian parallel edgement of indebtedness, drawn national law. If this reveals that ment or a rule of public interna- importer. Sebago argued that up without the involvement of a the foreign qualification is equiva- tional law in respect of their fund- since it had not authorised the public authority, was an authentic lent, it must be recognised as ing. Funding is available for stud- sale of those shoes in the EU, GB instrument within the meaning of such. If the qualifications only ies in some Belgian institutions. had no right to sell them there. article 50. The court held that as partially correspond, the compe- The applicant was refused GB claimed that it sufficed to the instruments under article 50 tent authority can require the per- finance, as she did not meet the establish consent to show that were enforced under the same son to show that he had acquired residence requirement. The appli- similar goods bearing the same conditions as judgments, the the knowledge and qualifications cant’s mother was married to the mark had already been lawfully authentic nature of such instru- that are lacking. The court con- director and sole shareholder of marketed in the EEA with the ments had to be established cluded that where no general pro- the company for which she owner’s consent. The ECJ had to beyond dispute so that the court cedure for official recognition has worked. The ECJ held that she decide whether the consent of enforcing the instruments can rely been laid down at national level might still be considered a worker the trademark proprietor to the on their authenticity. Instruments by the host state, it is for the pub- for the purposes of article 39 marketing in the EEA of one batch drawn up between private individ- lic body seeking to fill the post to of the treaty and regulation of goods exhausted the rights uals are not inherently authentic. investigate whether the foreign 1612/68. The relationship conferred by the trademark as The involvement of a public qualification is equivalent to the between spouses did not rule out regards the marketing of other authority or any other authority national one. in the context of the organisation batches of identical goods. In empowered for that purpose by of an undertaking the existence of Case C-355/96 Silhouette the the state of origin is necessary to Seminar: Litigation in the a relationship of subordination ECJ had ruled that national rules endow them with the character of European Court of Justice characteristic of an employment providing for exhaustion of rights authentic instruments. The The Law Society, together with relationship. It was for the nation- in a trademark in respect of prod- Jenard/Möler report on article 50 the General Council of the Bar of al courts to verify the existence of ucts put on the market outside of the Lugano convention sup- England and the Academy of such a relationship. The appli- the EEA under that mark by the ports this interpretation. European Law, has organised a cant’s mother worked in the proprietor or with his consent seminar on Litigation in the Netherlands but resided in anoth- were contrary to article 7(1) of MUTUAL RECOGNITION European Court of Justice to be er state. The applicant argued that the Trademarks directive. Article OF QUALIFICATIONS held in Trier, Germany, from 20 to she was entitled to Dutch study 7 does not exhaust the propri- 22 September. Topics covered finance on the basis of her moth- etor’s right to oppose the impor- Case C-234/97 Teresa will include an in-depth look at er’s status as a worker. The tation of goods from outside the Fernández de Bobadilla, judg- the ECJ, references from national finance was a social advantage EEA without his consent. He is ment of 8 July 1999. The appli- courts to the European courts, under article 7(2) of regulation entitled to control initial market- cant, a Spanish national resident and the relationship between EC 1612 which should remain in ing in the EEA of goods bearing in Madrid, has a post-graduate law and national law. The seminar place while the child was a the mark. He would lose this pro- qualification in fine-arts restora- will also include a visit to the ECJ dependent of the worker. The tection if by consenting to the tion obtained in 1989 from in Luxembourg and an opportuni- Dutch and German governments marketing in the territory of one Newcastle-upon-Tyne Polytechnic. ty to meet some of the judges argued that this did not apply to batch of trademarked goods he She applied for the job of restor- and staff members working at the frontier workers. The court held exhausted his rights in respect of er of works of art on paper at the court. Speakers will include that the child of a frontier worker all identical or similar goods. Prado Museum in Madrid. lawyers with experience of litigat- in these circumstances was enti- Thus, consent must relate to Spanish law restricts this posi- ing before the courts and current tled to equal treatment to children each individual item of the prod- tion to graduates of the Faculty of and former staff members. of Dutch workers and thus could uct in respect of which exhaus- Fine Arts or the School of Arts or There are fifteen places on be entitled to study finance. The tion was pleaded. any foreign qualification officially this course reserved for Irish court held that the same princi- recognised by the competent solicitors and apprentices. There ples applied to those exercising LITIGATION body. She applied to the Spanish will be no fee charged for these their right of establishment. Ministry of Education to have her participants, though they will be Brussels convention degree recognised as equivalent expected to meet their own travel INTELLECTUAL Case C-260/97 Unibank A/S v to the Spanish qualification. The and accommodation charges. PROPERTY Flemming G Christensen, judg- ministry required her to take an Further details can be obtained ment of 17 June 1999. In examination in two parts on 24 from the Law School or from Ide Trademarks Denmark, written acknowledge- specified subjects. The ECJ held Ni Riagain at the Academy of Case C-173/98 Sebago and ments of indebtedness can be that where a profession falls out- European Law.

49 Law Society Gazette May 2000 People and places

Broadcast views RTE Director General Bob Collins (left) and Paul O’Connor, the dean of UCD’s law faculty, congratulate Madam Justice Louise Arbour from the Supreme Court of Canada following her lecture in the UCD/ RTE series of seminars on Broadcasting, society and the law

Things are looking up Two speakers from the inaugural Hugh M Fitzpatrick lectures in legal bibliography, UCD Prof W Niall Osborough (left) and Magdalen College Fellow David Ibbetson, flank the event chair- man, Mr Justice Hugh Geoghegan

Another volume for the collection? At the launch of Commercial and consumer law at the Chester Beatty Library are (left to right) Mr Justice Frederick Morris, president of the High Court; the book’s author, Patrick O’Reilly; and Louise Leavy, managing editor of Butterworths

Not neglecting negligence Attending the recent CLE semi- nar on medical negligence were (above, left to right) Barbara Joyce, CLE co-ordi- nator, Professor William Binchy of the Trinity Law School, Mr Justice Reviewing the Review Peter Kelly, Gathered at the launch of Conleth Bradley’s Judicial Michael Boylan of review are (left to right) Attorney General Michael Trust us Augustus Cullen & McDowell; Conleth Bradley; and Mr Justice Peter Pictured at the recent CLE seminar on the legal and taxation Son, and Geraldine Kelly of the High Court. The launch was held at the implications of the creation of trusts were (left to right) solicitors Hickey of McCann Fitzwilliam Place offices of the publisher, Round Hall Paula Fallon, John O’Connor and Patricia Rickard-Clarke FitzGerald Sweet & Maxwell

50 Law Society Gazette May 2000 People and places

Pictured in Paris The Chief Justice of France, Guy Canivet (centre right, with book), joins Law Society immediate past president Pat O’Connor and other members of the Franco-Irish Lawyers’ Association during their recent trip to Paris. The pictured gathering in the French Supreme Court was one of the highlights of the trip, which also included a guided tour of the Palais de Justice and a roundtable discussion comparing the Irish E-commerce Bill with the French law on the recognition of electronic signatures

A few good men with a few good bottles At the Southern Law Association’s annual dinner, held at Cork’s Maryborough House Hotel on 25 February 2000, were (left to right) Southern Law Justices prevail Association President Simon Murphy, Law Society At the Southern Law Association dinner were (left to right) Circuit Court judge John P President Anthony Ensor, Dublin Solicitors’ Bar Clifford, Judge Patrick Moran of the Circuit Court, retired chief justice Tom Finlay, Southern Association President Richard Bennett, and Northern Law Association President Simon Murphy and Circuit Court judge AG Murphy Ireland Law Society President John Meehan

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51 Law Society Gazette May 2000 Professional information

LOST LAND Regd owner: Eileen Keelan (deceased); Regd owner: Patrick McKenna, Mill Regd owner: Francis Cullen; Folio: CERTIFICATES Folio: DN2020L; Lands: Known as Street, Smarmore, Drogheda, 5612; Lands: Townland of Kilmartin No.8 Virginia Terrace situate on the County Louth; Folio: 21809; Lands: and Barony of Newcastle; Co Registration of Title Act, 1964 south side of Navan Road in the Mullaghwillin; Co Meath Wicklow An application has been received from Parish of Castleknock District of Regd owner: Hugh McEnaney, the registered owners mentioned in the Cabra; Co Dublin Leonsgarve, Carrickmacross, Co schedule hereto for the issue of a land Regd owner: John Joseph Kelly & Mary Monaghan; Folio: 17877; Lands: WILLS certificate as stated to have been lost or Leonard; Folio: 52851F; Lands: Leonsgarve or Leons; Area: 6.188 inadvertently destroyed. A new certifi- To wnland of Rathmooney and acres; Co Monaghan Callaghan, Kathleen (otherwise known cate will be issued unless notification is Barony of Balrothery East; Co Regd owner: John Creighton, as Catherine Nuala Callaghan), late of 44 received in the registry within 28 days Dublin Carrownalasson, Four-Mile-House, Maretimo Gardens East, Blackrock, Co from the date of publication of this Regd owner: Thomas Mc Inerney and County Roscommon; Folio: 792; Dublin. Would any person having knowl- notice that the original certificate is in Company Limited; Folio: DN3497; Lands: Townland of Carrownalassan edge of a will made by the above named existence and in the custody of some Lands: Townland of Knocklyon and and Barony of Ballintober South; deceased who died on 8 December 1999, person other than the registered owner. Barony of Uppercross; Co Dublin Area: 5.9564 hectares; Co please contact Messrs O’Keeffe & Lynch, Any such notification should state the Regd owner: Thomas Patrick Reid; Roscommon Solicitors, 30 Molesworth Street, Dublin grounds on which the certificate is Folio: DN45306F; Lands: Known as Regd owner: John Flannery; Folio: 2, tel: 01 676 1537, reference: EA being held. 120 Larkfield Gardens situate in the 4406; Lands: Killadangan and Barony (Register of Titles), Central Office, Land parish of Saint Peter and district of of Ormond Lower; Co Tipperary Connors, Simon, late of 53 Slievenamon Registry, Chancery Street, Dublin Rathmines; Co Dublin Regd owner: John Devitt; Folio: 19331; Road, Drimnagh, Dublin 12. Would any (Published 12 May 2000) Regd owner: BP Ireland Limited (now Lands: Rosegreen and Barony of person having knowledge of the where- Statoil Ireland Limited); Folio: 8914; Middlethird; Co Tipperary abouts of the original will dated 19 Regd owner: James Bernard Heerey Lands: Townland of Stockens and Regd owner: John & Elaine Williams; July 1994 of the above named deceased otherwise Bernard Heerey, Clonraw, Barony of Castleknock; Co Dublin Folio: 6111F; Lands: Figlash and who died on 2 April 1996, please Maudabawn, Cootehill, Co Cavan; Regd owner: Jack McCarthy (deceased); Barony of Iffa & Offa East; Co contact Brendan Garvan & Company, Folio: 7302; 4161F; Lands: Clonraw; Folio: 31684; Lands: Townland of Tipperary Solicitors, 6 Exchequer Street, Dublin 2, Area: 36.538 acres; Co Cavan Ballynageragh and Barony of Regd owner: Mark Rowe; Folio: tel: 01 677 9326 Regd owner: James O’Halloran, Clanmaurice; Co Kerry 17084F; Lands: Townland situate in Limerick Road, Ennis, Co Clare; Regd owner: Irish Shell Limited; Folio: the parish of Ballynakill Division, Donnelly, Dan, late of 10 The Elms, Folio: 48L; Lands: Part of the 13732; Lands: Curraghfarm and Farronshoneen; Co Waterford Clane, Co Kildare. Would any person To wnland of Clonroad Beg; Co Barony of Offaly East; Co Kildare Regd owner: Charles Foley and having knowledge of a will executed Clare Regd owner: Michael Harris; Folio: Michelle Forsey; Folio: 3076F; by the above named deceased who Regd owner: Michael F Cummins and 2238F; Lands: Townland of Lands: Townland of Farranshoneen died on 19 September 1999, please con- Margaret Cummins; Folio: 53874; Castlereban North and Barony of and Barony of Gaultiere; Co tact James A Boyle, James A Boyle Lands: Known as a plot of ground Narragh and Reban West; Co Waterford & Company, Solicitors, The Woods, situate in the Townland of Kildare Regd owner: Laurence Moran, Clane, Co Kildare, tel: 045 868 045, Mashanaglass, the Barony of Regd owner: John O’Rourke; Folio: Wooddown, The Downs, Mullingar, fax: 045 893 055 Muskerry East, and the County of 28202F; Lands: Townland of County Westmeath; Folio: 1445; Cork; Co Cork Osberstown and Barony of North Lands: Wooddown; Area: 5.344 Lynham, Mary (deceased), late of 1 Regd owner: Helena Whelton; Folio: Naas; Co Kildare acres; Co Westmeath Oaklands Drive, Ballsbridge, Dublin 4 (1) 41391; Lands: Known as a plot of Regd owner: James Connors; Folio: Regd owner: T Murray & Son Limited, and formerly of 27 Newgrove Avenue, ground situate in the Townland of 18204; Lands: Moneenroe & Roscommon Road, Athlone, Co Sandymount Avenue, Dublin 4. Would Knocknageehy and Gortagrenane, Coolbaun and Barony of Fassadinin; Westmeath; Folio: 8560F; Lands: any person having knowledge of a will the Barony of Iband and Barryroe, Co Kilkenny Bogganfin; Area: 0.381 acres; Co executed by the above named deceased and the County of Cork; Folio (2) Regd owner: John Bergin Junior Westmeath who died on 16 January 2000, please con- 18031; Lands: Known as a plot of (deceased); Folio: 14632; Lands: Regd owner: Anthony & Lorraine tact Arthur O’Hagan, Solicitors, 9 ground situate in the Townland of Knockanina & Cuddagh and the Dempsey; Folio: 9410F; Lands: Harcourt Street, Dublin 2, tel: 01 475 Knocknageehy, the Barony of Iband Barony of Maryborough West & Killagoley and Barony of Ballaghkeen 8701 or fax: 01 478 1583 ref: MC and Barryroe, and the County of Upperwoods; Co Laois South; Co Wexford Cork; Co Cork Regd owner: Maura Moore (deceased); Regd owner: Dunbur Developments McElhargey, Monica (deceased), late of Regd owner: John Francis Lynch; Folio: Folio: 3875F; Lands: Mountrath and Limited; Folio: 12913F; Lands: Glen, Carrigart, Co Donegal. Would any 13156; Lands: Known as a plot of Barony of Maryborough West; Co To wnland of Dunbur Lower and person having knowledge of a will exe- ground situate in the Lands of Laois Barony of Arklow; Co Wicklow cuted by the above named deceased who Ballyburden Beg, the Electoral Regd owner: Shannon Free Airport Regd owner: Pierce Perkins and Edith died on 2 January 1999, please contact Division of Ballincollig, the Barony Development Company Ltd; Folio: Perkins; Folio: 3074F; Lands: Anne Colley & Company, Solicitors, 6 of Muskerry East and the County of 26895; Lands: Townland of Gortboy To wnland of Kilcoole and Barony of Main Street, Dundrum, Dublin 14, tel: Cork; Co Cork and Barony of Glenquin; Co Newcastle; Co Wicklow 01 296 0488 or fax: 01 296 0490 Regd owner: Doctor Walter Limerick Hillebrand; Folio: 14087; Lands: Regd owner: William O’Neill; Folio: Known as a plot of ground situate in 15450, 15449, 11423, 22859, 20461, the Lands of Ballincolla, the 3697F; Lands: situate in the Electoral Division of Myross, the Townlands of Fanningston and Barony of Carbery West (East Castleroberts and Barony of Coshma Division), and the County of Cork; and County of Limerick; Co TITLE RESEARCH Co Cork Limerick Regd owner: Thomas Mc Clintock, Regd owner: Philomena Gibbons, YOUR PARTNER IN TRACING Carrowcannon, Falcarragh, Letter- Knockrooskey, Westport, County MISSING BENEFICIARIES kenny, Co Donegal; Folio: 29280; Mayo; Folio: 15894F; Lands: PROBATE & Lands: Carrowcannon; Area: 5.753 Townland of Knockroosky and • Free professional assessments hectares; Co Donegal Barony of Burrishoole; Area: 1.5530 SUCCESSION Regd owner: Sarah McHugh (half hectares; Co Mayo GENEALOGY – • Range of cost structures share), Luinniagh, Derrybeg, County Regd owner: Thomas Hesnan, 29 West Donegal; Folio: 27452; Lands: Road, Fairview, Dublin, and Balreask • Excellent success rate world- Stramackilmartin; Area: 5.381 acres; Old, Navan, County Meath; Folio: For more information or our detailed brochure please Co Donegal 26177; Lands: Balreask Old; Area: Regd owner: Ridgeway Development 0.25 acres; Co Meath +44 020 7549 Limited; Folio: 913F; Lands: Regd owner: Peter Downey, 2 Belmont Charter House, 2 Farringdon Road, London EC1M Property situate in the Townland of Te rrace, Stillorgan, County Dublin; 3HN Balrothery and Barony of Balrothery Folio: 12804; Lands: Newgrange; Fax: +44 020 7549 0949 DX: 53347 Clerkenwell East; Co Dublin Area: 41.938 acres; Co Meath

52 Law Society Gazette May 2000 Professional information

Neville, Denis, late of 37 North veyancing. Reply to Arthur P McLean &

Summer Street, Dublin 1 and also late Company, Solicitors, 31 Parliament LawSociety of 7 Abbey Hall, New Ross, Wexford. Street, Dublin 2, or tel: 01 677 2519 Would any person having knowledge of Gazette a will executed by the above named Seeking commercial solicitor with deceased who died on 12 March 2000, three years’ PQE for commercial law unit please contact McKeever Rowan, of prestigious firm in Blackrock, Co ADVERTISING RATES Solicitors, Enterprise Building, 5 Dublin. Salary commensurate with expe- Advertising rates in the Professional information section are as follows: Harbourmaster Place, International rience. Please phone 087 637 1067 / 087 Financial Services Centre, Dublin 1, 224 7707 or e-mail CV to Harvest Re- • Lost land certificates – £30 plus 21% VAT (£36.30) tel: 01 670 2990, fax: 01 670 2988, e- cruitment at [email protected] • Wills – £50 plus 21% VAT (£60.50) mail: [email protected] • Lost title deeds – £50 plus 21% VAT (£60.50) Locum solicitor with experience Employment miscellaneous – £30 plus 21% VAT (£36.30) Nolan, Elizabeth (otherwise Lil), late required for general practice in Mullingar • of 51 Sperrin Road, Drimnagh, Dublin (August to February). Apply with CV to J HIGHLIGHT YOUR ADVERTISEMENT BY PUTTING A BOX AROUND IT – £25 EXTRA 12. Would any person having knowl- J Macken, Solicitors, Bishopsgate Street, edge of a will executed by the above Mullingar, Co Westmeath All advertisements must be paid for prior to publication. Deadline for June named deceased who died on 31 Gazette: 26 May 2000. For further information, contact Catherine Kearney or October 1999, please contact Bergin, Mature solicitor, based in West of Louise Rose on 01 672 4828 Burke & Ryan, Solicitors, 63 Mary Ireland, with limited PQE seeking to Street, Dublin 1, tel: 01 878 0230 or 01 re-enter the profession and gain experi- 878 8231, fax: 01 878 0233 ence, willing to work for modest remu- neration in return for practical experi- the areas of European law and in the tel: 01 459 3356 or fax your CV to O’Connor, Michael Gerard (deceased), ence. Available for locum/assistant posi- area of the firm’s publications. Most of 01 459 3547 late of 43 Sweetmount Park, Dundrum, tion in general practice from June to the work to be performed by the suc- Dublin 14. Would any person having September. Computer and technology cessful candidate will be through Solicitor with excellent PQE and tons knowledge of a will executed by the literate. MS Word, Microsoft Works English. Candidates should address a of enthusiasm seeks litigation position above named deceased who died on 28 and Clarisworks proficient. Touch typ- copy of their CV to Louis Vogel, Vogel doing District Court and/or criminal March 2000 at St Vincent’s Hospital, ing/word processing 20-30 wpm. Own & Vogel, 6 Avenue Pierre 1er de Serbie, work in Dublin area. Phone 087 617 5079 Elm Park, Dublin 4, please contact Brian car. Reply to Box No 44 75116 Paris, France Matthews & Company, Solicitors, 7 Assistant solicitor required by busy Main Street, Dundrum, Dublin 14, tel: Bright, ambitious, young solicitor Solicitors required for both con- office in Sligo. Experience in conveyanc- 01 295 1187, fax: 01 298 0280 wanted minimum one to two years’ PQE, veyancing and litigation (may suit part- ing, litigation and probate desirable. May Dundalk area, to work in a young techno- time). Excellent prospects. Apply with suit recently-qualified solicitor. Please logically efficient practice. Salary and full CV to Guilfoyles, Solicitors, apply to Howley Carter & Company, EMPLOYMENT benefits will not be an issue for the right Courthouse Chambers, 95 Main Street, Wine Street, Sligo, tel: 071 62211 applicant. Experience with computers Midleton, County Cork Solicitor, mid-thirties, six years’ PQE in desirable, but not essential. Business- Solicitor required for Donegal Town conveyancing, litigation and District minded applicant with typing skills essen- Locum required over the summer vaca- and Ballyshannon, County Donegal Court work, seeks employment in tial to head and run on a day-to-day basis tion May-July. For further details please practice. Litigation and conveyancing. Tipperary, Kilkenny, Waterford or East a busy office specialising only in litigation respond to Declan J O’Connell & Two years’ post-qualification experience Cork. Reply to Box No 40 and conveyancing. Apply in strictest con- Company, Solicitors, Gandon House, preferred. Salary: market rate. Reply to fidence with CV to Gary Matthews, Main Street, Lucan, County Dublin, tel: Box No 46 Locum solicitor required for Solicitor, The Doyle Suite, Donovan 01 621 4066/67 Waterford City practice for the months House, 5 Adelphi Court, Long Walk, Locum conveyancer urgently of July & August 2000. Reply to Box Dundalk, Co Louth, or preferably submit Solicitor required for general legal prac- required by legal office of Dublin-based No 41 CV by e-mail to info@gary- tice in busy Galway office, with one to telecommunications company. Please matthews.com two years’ post-qualification experience. telephone in confidence: 01 701 5930 Apprentice required for busy two- Knowledge in all areas of practice desir- and quote reference EGH partner practice in Dublin 4. Varied Highly experienced solicitor (nine able, with emphasis on conveyancing, and responsible work load. Position years’ PQE) seeks move within Dublin – probate, tax and litigation. Computer lit- would ideally suit candidates with some part-time position. Experience in all areas eracy desirable. Position to commence MISCELLANEOUS experience. Reply to Box No 42 of general practice – preference for litiga- June 2000. Send CV to Horan & Son, tion. Reply to Box No 45 Solicitors, 23 Eyre Square, Galway Northern Ireland solicitors providing Newly-qualified solicitor with experi- an efficient and comprehensive legal ence in probate, conveyancing and litiga- Paris – international French law firm Legal executive wanted with minimum service in all contentious/non-con- tion seeks position in Dublin area. Reply seeks apprentice solicitor or recently two to three years’ conveyancing and tentious matters. Dublin-based consul- to Box No 43 qualified solicitor to carry out a training probate experience essential for busy tations and elsewhere. Fee apportion- period of three to six months in its Paris dynamic practice. Excellent conditions ment. ML White, Solicitors, 43-45 Locum solicitor required for Dublin office. The applicant will be expected to and salary. Please contact Geraldine or Monaghan Street, Newry, County city practice for a three to four month have established French language skills Barry at MacCormack Solicitors, 7 Castle Down, tel: 080 1693 68144, fax: 080 period. Experience required in con- and will be required to work mainly in Crescent, Clondalkin Village, Dublin 22, 1693 60966 Doyle Court Reporters EXCELLENCE IN REPORTING SINCE 1954 • Daily transcripts • Conferences • Real-time • Arbitrations • Search & Retrieval Software • Inquiries USA REGISTERED COURT REPORTING QUALIFICATIONS Principal: Áine O’Farrell 2 Arran Quay, Dublin 7. Tel: 872 2833 or 286 2097 (After Hours). Fax: 872 4486. E-mail: [email protected]

53 Law Society Gazette May 2000 Professional information

Northern Ireland agents for all con- London solicitors will advise on UK and premises situate on the west side tentious and non-contentious matters. matters and undertake agency work. All PARKING SPACE TO LET of the street leading from Athy to Consultation in Dublin if required. Fee areas. Corporate/private clients. Ellis & Individual garage Carlow called Preston’s Gate or Emily sharing envisaged. Offices in Belfast, Fairbairn, 26 Old Brompton Road, South Chancery Hall, corner North Row, containing in front from north Newry and Carrickfergus. Contact Kensington, London SW7 3DL, tel: 0044 Kings Street, Dublin 7. Individual to south 29ft in the rear, 38ft 6ins and Norville Connolly, D&E Fisher, 171 589 0141, fax: 0044 171 225 3935 garage, own motorised door. £100 from front to rear 139ft 9ins, which Solicitors, 8 Trevor Hill, Newry, tel: per month, tel: (office) 610 0895, said premises are situate in the town 080 1693 61616, fax: 080 1693 67712 Agents in England and Wales. We are (mobile) 087 257 6661 of Athy and County of Kildare. willing to act as agents for Irish solicitors Particulars of applicants lease Personal injury claims, employment, in civil and criminal litigation. Contact: dated 13 October 1880 and made family, criminal and property law Olliers, Solicitors, Alderman Downward EYE INJURIES AND between William Holmes Orr, specialists in England and Wales. House, 2/3 The Birtles, Civic Centre, OPHTHALMOLOGIAL Catherine Jane Orr of the one part Offices in London (Wood Green, Wythenshawe, Manchester M22 5RF, tel: NEGLIGENCE and James Cooper of the other part Camden Town and Stratford) and 0044 161 437 0527, fax: 0044 161 437 for the term of 61 years from 1 Birmingham. One of our staff is in 3225 Mr Louis Clearkin ChM, FRCS, November 1880 subject to the annual Ireland for one week in every month. FRCOphth, DO, MAI, MEWI rent of £16 and to the covenants and Legal aid available to clients that quali- Northern Ireland solicitors. Will advise Consultant Ophthalmic Surgeon conditions therein contained. fy. Contact David Levene & Co at and undertake NI-related matters. All Experienced expert witness in Take notice that applicants John Ashley House, 235-239 High Road, areas corporate/private. Agency or full ophthalmological personal Fennin and Claire Finnan of Emily Wood Green, London N22 8HF, referral of cases as preferred. injury, medical negligence and Square, Athy in the County of England, tel: 0044 181 881 7777, or Consultations in Dublin or elsewhere if civil litigation Kildare, being persons entitled under The McLaren Building, 35 Dale End, required. Fee sharing envisaged. Donnelly the provisions of sections 9 and 10 of Birmingham B4 7LN, tel: 0044 121 212 Neary & Donnelly, 1 Downshire Road, Renuntiabo, 8 Rose Mount, the Landlord and Tenant (Ground Rents) 0000. Alternatively e-mail us on Newry, Co Down, tel: 080 1693 64611, Oxton, Wirral, Merseyside, (No 2) Act, 1978, propose to purchase [email protected] or visit our fax: 080 1693 67000. Contact K J Neary L43 5SW the fee simple in the property website, http://www.davidlevene.co.uk secretary: +44 (0) 151 6047047 described above. Full ordinary seven-day intoxicating fax: +44 (0) 151 6047152 Signed: HG Donnelly & Son, 5 Duke liquor licence sought. Please contact e-mail: [email protected] Street, Athy, Co Kildare, solicitors for the Mannion Aird & Company, Solicitors, applicant. Legal practice located in the Clifden, Co Galway, tel: 095 21044 or fax: 14 April 2000 Mid-West with a substantial 095 21756 client base seeks qualified TITLE DEEDS In the matter of the Landlord and solicitor as a partner - final Solicitors’ practice located in south- Tenant Acts, 1967–1994 and in the arrangements to be agreed. west for sale. Enquiries from principals Landlord and Tenant Acts, 1960- matter of the Landlord and Tenant only to Donovan Caulfield Lavin, 1994 and Landlord & Tenant (No 2) (Ground Rents) (No 2) Act, 1978 and Please contact: Chartered Accountants, 1 Mount Kennett Act, 1978 in the matter of an application by Place, Henry Street, Limerick, tel: 061 Mary Thompson of 47 & 48, Dennehy & Co. 411000 To: person or persons for the time Lower Sheriff Street, Dublin 1 Incorporated Public Accounts, being entitled to the interest of 74, O’Connell Street, Busy north Cork solicitors’ practice William Holmes Orr and Catherine Any person having interest in the Limerick. for sale. Good client base. Contact Jane Orr the premises hereinafter freehold estate in the following prop- Tel: (061) 316407 Andrew Moynihan, Barrett Accountants, described under the lease. erty 47 & 48 Lower Sheriff Street, Fax: (061) 316408 Kilbarry House, Dublin Hill, Cork, tel: Description of property all that and Dublin 1, take notice that Mary 021 300174 those the dwellinghouse, outoffices Thompson intends to submit an

CONTINUING LEGAL EDUCATION MAY/JUNE 2000

SEMINAR VENUE DATE PROBATE PRACTICE Blackhall Place 17/24/31 May EMERGING TRENDS IN ADOPTION Blackhall Place 25 May

TIME MANAGEMENT Blackhall Place 30 May DISTRICT COURT PRACTICE & PROCEDURE Great Southern Hotel, 14 June Eyre Square, Galway NEW HOUSES Fitzpatrick’s Hotel, Cork 15 June VAT ON PROPERTY Blackhall Place 20 June PASSING ON THE FAMILY WEALTH Blackhall Place 21 June CHILDREN AND THE LAW Fitzpatrick’s Hotel, Cork 22 June (video conference) JUDICIAL REVIEW Blackhall Place 26 June REFUGEE LAW AND PRACTICE Blackhall Place 28 June

For further information, please see the CLE brochure enclosed with this month’s Gazette or telephone the CLE department on 01 672 4802 or fax 01 672 4803. Suggestions for CLE seminars are always welcome.

54 Law Society Gazette May 2000 Professional information application to the county registrar for county registrar at the end of the 21 the county of the city of Dublin for days from the date of this notice and the acquisition of the freehold inter- will apply to the county registrar for est in the aforesaid properties and any the county of Dublin for directions party asserting that they hold a supe- as may be appropriate on the basis rior interest in the aforesaid premises that the person or persons benefi- (or any of them) are called upon to cially entitled to the superior inter- furnish evidence of title to the afore- est and that the person or persons mentioned premises to the below beneficially entitled to the superior named within 21 days from the date interest including the freehold Be Sure. Engage a Forensic of this notice. reversion in the aforementioned In default of any such notice being property are unknown or unascer- 26/28 South Terrace, Cork Tel:021 431 9200 received, Mary Thompson intends to tained. Fax:021 431 9300 proceed with the application to the Signed: Cahill & Company, Solicitors, county registrar at the end of 21 days 23 Lower Leeson Street, Dublin 2 from the date of this notice and will apply to the county registrar for the In the matter of the Landlord and Signed: Patrick J O’Meara & Company, tion of the freehold interest in the county of the city of Dublin for direc- Tenant (Ground Rents) Acts, 1967- solicitors for the applicant, Thurles, aforesaid property and any party tions as may be appropriate on the 1989, Maureen O’Keeffe, appli- County Tipperary asserting that they hold a superior basis that the person or persons bene- cant unknown and unascertained, 6 April 2000 interest in the aforesaid premises are ficially entitled to the superior inter- respondent: notice of application called upon to furnish evidence of title est including the freehold reversion in Notice in the matter of the to the aforementioned premises to the each of the aforesaid premises are Whereas the applicant is the owner Landlord and Tenant Acts, 1967- below named within 21 days from the unknown or unascertained. of all that and those piece or plot of 1994 and in the matter of the date of this notice. Signed: Mary Thompson, c/o Grainne ground with the dwellinghouse con- Landlord and Tenant (Ground In default of any such notice being Griffith & Company, Solicitors, Unit 2, structed thereon at Lower Liberty Rents) (No 2) Act, 1978, Brendan received, the applicant Brendan Brady Woodfall House, Watermill Road, Square in the town of Thurles, Brady, applicant, the unknown or intends to proceed with the applica- Raheny, Dublin 5 Barony of Eliogarty and county of unascertained owner or owners, tion before the county registrar at the 13 April 2000 Tipperary being the property respondent: an application by end of 21 days from the date of this believed to be held under a long Brendan Brady notice and will apply to the county In the matter of the Landlord and lease executed in or about the year registrar for the county/city of Dublin Tenant Acts, 1967–1994 and in the one thousand eight hundred and Take notice that any person having for directions as may be appropriate matter of the Landlord and Tenant twenty one Ellen Boyton and held any interest in the freehold estate of on the basis that the person or persons (Ground Rents) (No 2) Act, 1978 subject to a rent of £3 but indemni- the following property: 73 Dame beneficially entitled to the superior and in the matter of property situ- fied in respect of £1.50 thereof. Street situate in the parish of St. interest including the freehold rever- ate at 36 & 36A, (also known as 36 And whereas the applicant is a Andrew and county of the city of sion in the aforesaid premises are 1/2 Thomas Street, Dublin 8): an person entitled under the Landlord Dublin. unknown or unascertained. application by Dill Limited and Tenants Act, 1967 to 1989 to Signed: Dairine Mac Fadden, Mac acquire the fee simple interest in the Take notice that Brendan Brady Fadden Solicitors, The Village Court, Take notice that any person having said hereditaments and premises and intends to submit an application to Rathfarnham, Dublin 14 (solicitors for any interest in the freehold estate of is desirous of so doing. the county registrar for the the applicant) the following property: the heredita- And whereas the person or per- county/city of Dublin for the acquisi- 5 April 2000 ments and premises comprised in sons required by the acts to convey indenture of lease dated 3 November or join in conveying the fee simple 1920 and made between James in said premises are unknown and Cassidy Esq, of the first part, Mrs unascertained. Josephine Napier, the Misses Eva Take notice that we as solicitors Mary Cassidy, Kathleen Cassidy and for the applicant hereby apply to the NORTHERN DUBLIN SOLICITORS’ Frances Cassidy and Matthew J county registrar for county PRACTICE OFFERS McCabe, Esq, of the second part and Tipperary to have the matter deter- IRELAND exchange buildings limited of the mined by her arbitration and for an SOLICITORS AGENCY WORK third part and therein described as all award: that and those the shops, house, a) determining that the applicant is IN NORTHERN offices, yards and premises partly entitled to acquire the fee simple We will engage in, IRELAND known as no 36 Thomas Street and in the said hereditaments and and advise on, partly known as 36 1/2 Thomas premises under the said acts all Northern Ireland Street in the City of Dublin together b) determining the purchase price related matters, * All legal work undertaken with the yards, premises and outof- to be paid in respect of the acqui- on an agency basis fices at the rear thereof all of which sition particularly personal * All communications to clients said premises are more particularly c) appointing such person as she injury litigation. through instructing solicitors described on the map hereunto may think fit to execute a con- * Consultations in Dublin if required annexed and thereon edged red and veyance of the fee simple in the Consultations where are situate lying and being in the said premises for and on behalf of convenient. Contact: Séamus Connolly parish of St Catherine and City of the unknown and unascertained Fee sharing Moran & Ryan, Solicitors, Dublin. respondent envisaged. Arran House, Take notice that Dill Limited d) ordering that the purchase price 35/36 Arran Quay, Dublin 7. intends to submit an application to be paid into court before the exe- the county registrar for the city of cution of such conveyance OLIVER M LOUGHRAN Tel: (01) 872 5622 Dublin for the acquisition of the free- e) as to the costs of this application Fax: (01) 872 5404 hold interest in the aforesaid proper- and arbitration & COMPANY ty and that any party asserting they f) granting such further or other e-mail: [email protected] hold a superior interest in the afore- relief as may be necessary in the 9 HOLMVIEW TERRACE, or Bank Building, Hill Street said property are called upon to fur- circumstances of the case. OMAGH, CO TYRONE nish evidence of title to the afore- Newry, County Down. mentioned property to the below Take notice the application herein Phone 004428) 8224 1530 named within 21 days from the date will be made to the county registrar Fax: (004428) 8224 9865 Tel: (0801693) 65311 Fax: (0801693) 62096 of this notice. sitting at the courthouse, Clonmel, e-mail: In default of any such notice being county Tipperary on 17 May 2000 at E-mail: [email protected] [email protected] received, Dill Limited intends to pro- the hour of 2.30pm or on the first ceed with the application before the opportunity thereafter.

55 Law Society Gazette May 2000 Cross-examination Opening the floodgates

‘Appearances evin Neary, best known as the man who can be placed the newspaper ads that eventually led to the establishment of the Flood deceptive. KTr ibunal, was born in Newry, County Many of Down, in 1963 and went to St Colman’s College, Newry, and University College, Dublin. At UCD, those in he studied law and completed a BCL. He returned whom we are to Northern Ireland where he joined his father’s firm of Donnelly Neary & Donnelly, where he was asked to apprenticed to his future partner, Tim Donnelly. He place our qualified as a solicitor in Northern Ireland in 1986 and in the Republic of Ireland in 1994. He was trust are not appointed as a notary public by the lord chief justice what they of Northern Ireland in 1997. His interests include art, architecture and walking in the Mournes. seem’ What attracted you to a career in law? Apparently, I first told my father when I was six or so that I wanted to work in his office and ‘do joined- up writing’. I am still trying to master that particular skill. My father’s enjoyment of his job clearly influenced me.

Which living person do you most admire, and why? This is an impossible question. Unfortunately, in the Kevin Neary: Land law could do with root-and-branch present political climate, there are few enough reform politicians to admire except John Hume. Perhaps I would pick an observant writer, as they have the ability to catch the mood of a time, and so I choose the American writer Richard Ford. If you could make one change to the legal system, what would it be? What is the best piece of advice you ever got? I am a conveyancer by trade. I have an abiding Appearances can be deceptive. Many of those in interest in and respect for common law traditions. whom we are asked to place our trust are not what However, my own day-to-day frustrations come they seem. to mind. When the separate systems of transfer for registered and unregistered land are Which case do you wish you had been involved in? compared, one can’t help but feel that the finer Brown v the Board of Education. points of the Statute of Uses or the rule in Tulk v Moxhay and the like have little place in a modern Best decision you ever made? economy. So my choice would be a root-and- Moving home. When I was graduating from college, branch reform of land law, accompanied by my choice was whether to stay in Dublin or go compulsory registration of land throughout home to what I then saw as the back-end of Ireland. In the majority of cases, the title to a nowhere. I now realise that I have the best of both piece of land or a building should be capable of worlds, living in the beautiful village of Rostrevor, being recorded on a single sheet of paper. which is after all only 60 miles or so from Dublin. Time management tips? Worst decision you ever made? Install a fully-networked computer system No comment. incorporating case management software.

How do you cope with stress? Pet hate? Having an active social life helps me maintain a I have a little list: house-price bores, polenta, sense of perspective on my professional life. brown paper bags. G

56 Law Society Gazette May 2000