MAY 1999 CONTENTS

16 Cover Story Fit to print? Libel reform could be just over the horizon, much to the REGULARS media’s delight, but privacy legislation may not be far behind. Barry O’Halloran interviews the interviewers 20 Quantum leap: general President’s message 3 damages in the 1990s Assessing the potential level of damages in a personal injury case can often amount to a difficult guessing game. Robert Pierse Viewpoint 4 discusses recent trends for general damages and reviews some of the landmark cases Letters 11 23 Law Society’s new complaints News 12 procedures The Registrar’s Committee is the one Law Society committee that Briefing 37 most solicitors would prefer to avoid. John Shaw explains the Legislation update 37 Society’s new procedures for dealing with complaints from Personal injury solicitors’ clients judgments 38 24 Workplace bullying: ILT digest 40 the legal issues Eurlegal 44 Bullying at work is a major contributor to stress-related illness and poor performance at work. Pádraig Walsh examines the legal People and background to the problem and the possibilities of redress places 49 28 Can you patent a Webwatch 53 business method? Everyone’s looking for a way to do business more Professional quickly, more easily and more cheaply. But just information 55 suppose you come up with such a method: can you patent it? Denis Kelleher looks at a recent US case that has thrown the issue into confusion

COVER PIC: ROSLYN BYRNE 31 Parallel lines Various rulings from the European Court of Justice have opened the European market to parallel importers. Maureen Daly describes how businesses have fought to retain control over their goods 35 Annual returns and perennial concerns Growing judicial concern over the number of companies failing to file their annual returns means that it could be much more difficult to get struck-off companies restored to the register. Niall O’Hanlon reports

Editor: Conal O’Boyle MA The Law Society of Ireland can accept no responsibility for the accuracy of contributed Reporter: Barry O’Halloran articles or statements appearing in this magazine, and any views or opinions expressed are not necessarily those of the Law Society’s Council, save where other- Designer: Nuala Redmond wise indicated. No responsibility for loss or distress occasioned to any person acting Editorial Secretaries: or refraining from acting as a result of the material in this publication can be accept- Catherine Kearney, Louise Rose ed by the authors, contributors, editor or publishers. Professional legal Advertising: Seán Ó hOisín, tel/fax: 837 5018, mobile: 086 8117116, advice should always be sought in relation to any specific matter. E-mail: [email protected]. 10 Arran Road, Dublin 9 Editorial Board: Dr Eamonn Hall (Chairman), Conal O’Boyle Printing: Turners Printing Company Ltd, Longford (Secretary), Mary Keane, Pat Igoe, Ken Murphy, Michael V O’Mahony, Vincent Power Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4801. E-mail: [email protected] Law Society website: www.lawsociety.ie Subscriptions: £45 Volume 93, number 4

MAY 1999 LAW SOCIETY GAZETTE 1 LEGAL SERVICES LTD Are you paying too much for your Law Searching/Town Agency work? Change to Rochford Brady with our ‘one stop shop’ service (law searching and town agency under one roof) WE CUT YOUR COSTS

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s you read this message, I have are well advanced. completed half of my term as The report of the Council Development A President of the Law Society. It is Review Group, which I established in the hope of every President to try to make November last, will be available shortly. a meaningful contribution to improving The terms of reference of the group are, the service and the relevance of the Law among other things: Society to the solicitors’ profession and ‘To review and make recommendations on public. At the start of my term of office, I issues affecting the development of the proposed – and the Council accepted – Council as a representative body for the many changes to the committees, working entire profession, including steps to: groups and representatives of the Society. a) Maximise the effectiveness of the I am happy to report that the changes have involvement of Council members in the been accepted as beneficial and worth- work of the Council while for and by the profession. The b) Encourage greater participation by Council, its committees and the staff of the more members of the profession in the Society are working well. Council.’ I believe that transparency and open- ness are important. It is my earnest wish that more of our col- leagues in the profession would stand for Relevance of the Law Society election to the Council, volunteer to serve Every solicitor has by now received a per- on committees and act as consultants and sonal invitation from me to attend a recep- tutors in the Law School. tion in Blackhall Place. Those who were able to attend the social events enjoyed them! The facilities of the Law Religious services for the opening of legal year Society are for the profession and should be used. I hope that I will meet The opening of the legal year in October is celebrated by no less than six most, if not all, solicitors during the remainder of my tenure of office in religious services in different places of worship: Roman Catholic, Blackhall Place. Protestant (who have a combined service), Muslim, Orthodox, Coptic In an effort to ensure that I am conversant with the views and wishes of Orthodox and Jewish. the profession, I have visited 11 solicitors’ bar associations and all five of The Constitution and laws of Ireland apply to everyone, regardless of the large firms in Dublin. In the company of the Director General, I hope religious belief. Is it not time that both branches of the legal profession to visit the remainder of the bar associations, including our colleagues in and the judiciary combined their considerable influence and leadership London in the Irish Solicitors’ Association, within the next few months. qualities to hold one service at which all might attend for the opening of the legal year? What’s been happening over the last few months? All traditions on this island can, do, and expect to have, without fear, First, the Independent Adjudicator of the Law Society presented his first favour or bias, uninhibited access to the courts. Why, then, should all tra- report to me some time ago. While the number of complaints made ditions not come together to celebrate the opening of the legal year? It against solicitors are relatively few, it is of concern that a significant would show to those who might think otherwise that there is a genuine number of those against whom complaints are made failed to attend togetherness in this country. meetings when requested to do so. That very small number of solicitors regretfully continue to give the profession a bad image. Respect for the courts The recommendations of the Independent Adjudicator have been The impartial administration of justice in all the courts of this country has accepted by the Council and will be implemented. been the hallmark of Ireland’s democracy since the foundation of the Second, the Working Group on Qualification for Appointment as State. Mr Justice Liam Hamilton’s report on what has become known as Judges of the High and Supreme Courts has reported to the Government ‘the Sheedy affair’ and the regrettable, but in the circumstances appar- and its recommendations have been accepted by it. Legislation to give ently necessary, resignation of three popular, learned, humane and hon- effect to those recommendations should be enacted soon. ourable lawyers is a salutary lesson to all of us that there must never be Third, the site for the Education Centre has now been cleared. Do watch any doubt about the transparency, fairness, justice, accountability and it grow and develop! The laying of the foundation stone for the Education independence of those privileged and charged with upholding the Centre by An Taoiseach, Bertie Ahern, will take place in the summer. Constitution and laws of this country. I hope that those in the media and in politics who so quickly sought to What the future holds reassert the high standard expected of lawyers would, themselves, if their The coming months will see a number of changes. The further expan- standards were to fall below what is expected of them, should the cir- sion of the continuing legal education (CLE) programme throughout cumstances arise, take the honourable course. G the country, the report on the incorporation of solicitors’ practices and the drafting of regulations to enable this to occur, and the launch of a Patrick O’Connor new corporate image for the Law Society are some of the projects that President

MAY 1999 LAW SOCIETY GAZETTE 3 VIEWPOINT The Ansbacher and NIB investigation: will company law let us down?

nvestigations into the affairs of not identify the reasons for the the future. Its suggestion that IIrish companies are increas- settlements. But section 8 reports there should be a reforming ingly being discussed in the may be published by order of the Companies Bill every two years country’s boardrooms. The risks court – and they may, and will be if necessary was accepted by the of dishonesty being discovered expected to, name names. Tánaiste. are surely greater than ever The report by John Blayney The inspector-appointing before, but after exposure, what and Tom Grace into NIB and sections of the 1990 Act (sec- then? NIBFS accounts was seriously tions 7, 8 and 14) may be The Companies Act, 1990 is delayed by the High Court and reviewed by the reconstituted now being used and enforced in Supreme Court outings in which Company Law Review Group. many important respects, as was NIB employees sought unsuc- The group may consider that the originally intended by the cessfully to invoke the right to scope of section 7 investiga- Oireachtas, and important infor- silence. (The sole judgment of tions should be widened and mation on corporate crime is the Supreme Court on 21 January that a vital ‘trigger mechanism’ now reaching the public domain 1999, which was written by Mr be instituted for all sections. as a result. Formerly, we didn’t Justice Barrington, is recom- Public outrage is not widely even know what we didn’t mended reading, both on the regarded as a proper stimulus. know. There was a very small Tánaiste Mary Harney: accepts right to silence and indeed on Finally, there is the vexed issue number of investigations under the need for bi-annual company part II of the Companies Act, of who pays the costs. the 1963 companies legislation law reform 1990.) – probably as few as two. By The Tánaiste, Mary Harney, Corporate wrongdoing contrast, part II (investigations) Blayney and accountant Tom recently noted that major breach- Irish legislators have seldom of the 1990 Act is becoming one Grace as inspectors to NIB and es of the Companies Acts had been slow to consider how of the more thumbed parts of the NIB Financial Services. The been uncovered by inquiries things are done in England. The legislation. section was first used in undertaken by the Department of 1990 Third report by the House A ‘name and shame’ September 1991 when senior Enterprise, Trade and Employ- of Commons trade and industry approach is increasingly being counsel Conor Foley and ment. ‘Some very leading princi- committee on company investi- considered as an important tool accountant Aidan Barry were pals in very large organisations gations made a considerable of law enforcement. The names appointed to investigate the pur- have been involved in huge number of recommendations of the 700 or so individuals and chase by Siúcra Éireann (now breaches of the Companies Act’, which have wide applicability. companies reportedly involved called Greencore) of Sugar she said. An application by the They included such matters as: in National Irish Bank’s (NIB) Distributors Limited. The sec- Tanaiste to the court to have taking greater steps to recover offshore investments and in the tion was used again in January inspectors appointed to compa- the costs of the investigations; Ansbacher deposits would for- 1994 when Frank Clarke SC was nies linked to the Ansbacher taking steps to prevent recur- merly have remained well away appointed to investigate an deposits is likely. The names of rences; obliging auditors to dis- from public glare. The public alleged fraud in CountyGlen, the depositors are known to the close confidential information might not even have been aware formerly known as Glen Abbey. department but may not be pub- to investigators; and ensuring of the existence of the invest- On both occasions, the reports lished under section 14 of the that company law should reflect ments and deposits as the names were sent to the Director of 1990 Act. the broader public interest. of depositors would have Public Prosecutions, but no The community in general, remained confidential. Now prosecutions resulted. It increas- Proactive approach the majority of the business there is section 8 and part II of ingly appears that the confluence The Government, and politicians community, and the profes- the 1990 Act – and the public is of company law and criminal in general, may at last realise the sions, look to part II of the waiting. law remains a significantly weak importance of being ‘proactive’ Companies Act, 1990, and point in enforcement, even rather than ‘reactive’ in legisla- future amendments to it, to An inspector calls though the DPP has made many tion. Too often has the Dáil heard expose serious corporate Inspectors have been appointed calls for reform. the familiar refrain (as fell to Ms wrongdoings. Ireland’s reputa- in NIB and are likely to be Harney last month): ‘I wish that tion as a place in which to do appointed to companies linked Public outcry the position would be otherwise, business is regarded as worth to the Ansbacher accounts. But A public outcry may be expected but I am constrained by the pro- protecting. there still remains the question if or when the names of the hold- visions of the Companies Act as Significant progress is being of protecting the reputations of ers of NIB offshore accounts and it stands’. made. But what is done with the those who held – and still hold – Ansbacher accounts are pub- The Report of the working information uncovered remains such accounts legitimately. lished. Publication in Iris group on company law compli- unfinished business. G There have been two earlier Oifigiúil, the Government offi- ance and enforcement, which uses of section 8 before the cial journal, of settlements with was published in March, con- Pat Igoe is principal of Dublin- appointment last year of retired the Revenue Commissioners by tains not just positive proposals based solicitors’ firm Patrick Supreme Court judge John individuals and companies do but also a timescale for Igoe and Company.

4LAW SOCIETY GAZETTE MAY 1999 VIEWPOINT Judicial conduct and ethics after the Sheedy affair

ven the weeks of rumours however. The first of these is the The people of Ireland have been Ewhich preceded it were not an speedy establishment of a system extremely fortunate since the foun- adequate preparation for the to deal effectively with allegations dation of the State to have been impact of the Chief Justice’s report of judicial misconduct. served by a judiciary of outstand- on the Sheedy affair. The shock ‘Transparency and accountabili- ing integrity, ability, diligence and was very real, and the collateral ty’ are spirits of our age. They have compassion. Problems with judi- damage extensive. Perhaps been characteristic values of cial conduct and ethics have been, because most lawyers knew, to Ireland and most other democratic and continue to be, rare. However, varying extents, some of the per- countries in the 1990s. The prob- judges are human and from time to sonalities involved, the dismay lem is that transparency and, in time the conduct of some judges was probably felt even more particular, accountability are diffi- has fallen short of the very high strongly by the legal profession cult to reconcile fully with the role standards that are expected. than by the public at large. of judges given that it is a corner- Legal practitioners have had to Lawyers will not forget for a stone of a free democratic society face, from time to time over the long time where they were and that the judiciary be completely years, problems of judicial conduct Chief Justice Liam Hamilton: how they felt on 16 April 1999, independent in its judicial function. report with stark conclusions for which they have had no effec- when they first heard the detail However, as is observed by the tive remedy. While such problems and conclusions of the report of authors of Kelly’s The Irish on the working group, other juris- are rare, where they occur they can Chief Justice Liam Hamilton on Constitution: ‘The independence of dictions were ahead of us. be extremely serious. Problems of the circumstances leading to the the courts and their immunity from Common-law jurisdictions in judicial rudeness, irascibility, inef- release from prison of Philip control by the Oireachtas is not North America and Australia, for ficiency, favouritism or the making Sheedy who had served just one absolute, and scarcely could be example, where the independence of inappropriate remarks, for year of his four-year sentence for made so’. While article 35.2-5 of of the judiciary is valued no less example, of a political or sexist dangerous driving causing death. the Constitution provides that ‘All highly than it is in Ireland, have nature, from the bench can rarely Weeks later it is still disturbing judges shall be independent in the created systems relating to the con- in themselves be the subject of to re-read the Chief Justice’s exercise of their judicial function duct of judges. The systems in appeals to higher courts. report, both in terms of some of …’, it is clear that by no means Canada, California and New South When the subject was discussed the facts uncovered and of his everything done by a judge is an Wales in particular were studied by by the Law Society Council last stark conclusions that the most exercise of judicial function. the working group. Some of these year, two things emerged which senior ordinary judge of the When a judge hears a case, he or systems exist on a statutory basis. solicitors would now urge on Chief Supreme Court had interfered in a she must judge it independently of Justice Hamilton and the commit- case in a manner which was ‘dam- any outside influence. This consti- Judicial accountability tee which he has very recently aging to the administration of jus- tutionally-guaranteed judicial inde- In the course of the Sheedy contro- established to implement the pro- tice’ and that a High Court judge pendence cannot extend to protect- versy, it was reported that the posals in the Denham commission had ‘failed to conduct the case in a ing or excusing absolutely every- Department of Justice, Equality report. Even if the new body to be manner befitting a judge’. thing a judge may do, however. It and Law Reform had been established to review and deal with It must have been immediately cannot justify grossly excessive impressed by the New Zealand complaints against judges must clear to everyone on hearing the delays in delivering a reserved system which is also statute-based, have a majority of members who report that one, if not both, of the judgment, for example. Yet, as although it seems it could be more are judges, representatives of the judges involved would either have things stand, there exists no formal dangerously invasive of the territo- Law Society, and, if they so wish, to resign or face removal from system for resolving such a prob- ry surrounding judicial indepen- the Bar Council also should be full office by the Oireachtas. lem short of commencing another dence, if not of judicial indepen- members of it. In addition, there set of court proceedings. dence itself, than the other models should be non-lawyer members, Shaken and saddened It is a coincidence, although a considered by the working group. people of the highest ability and The legal profession, probably fortunate one, that a report on judi- It is of course the case that integrity, both to guarantee public more than anyone other than the cial conduct and ethics by the judges are accountable for their confidence in it and because of the judiciary themselves, was shaken Working Group on a Courts decisions in two ways. First, special value of their perspective and saddened that the judiciary, for Commission, chaired by Mrs judges are in the public eye. The from outside of the legal system. It the first time in the history of the Justice Susan Denham, was vast majority of cases are heard in is the public which the judges State, had been touched by a major already in existence well before the public. The decisions and reasons serve, and the public’s attitude to scandal. The damage can be Sheedy case erupted. As the final are also given in public and are transparency and accountability repaired, but it will take consider- part of the working group’s sixth subject to public scrutiny. should be embraced as part of the able time and effort. report, it was delivered to the Secondly, there is a system of necessary reforms. G The resignations which fol- Minister for Justice, Equality and appeals from the decisions of lowed the report have helped to Law Reform in November 1998 judges. Complaints of judicial mis- Ken Murphy is Director General restore public confidence in the (see also News, page 13). conduct are still made without of the Law Society and was a judiciary and in the justice system. As we found on so many other means of redress despite these two member of the Working Group on Much more needs to be done, occasions when researching issues safeguards, however. a Courts Commission.

MAY 1999 LAW SOCIETY GAZETTE 5 VIEWPOINT Chinese walls: can they really exist?

rust and confidence are closely The Chinese walls established Trelated. A hallmark of a client’s by KPMG were ad hoc and erect- relationship with a solicitor is that ed within a single department. The the client can safely trust and con- court noted that, in the circum- fide in his or her lawyer. In Taylor stances, the difficulty of enforcing v Blacklow ([1836] 3 Bing (NC) confidentiality or preventing the 235), Gaselee J stated that ‘the first unwilling disclosure of informa- duty of an attorney is to keep the tion was very great. Erecting secrets of his client’. So evident is Chinese walls and separating the that duty that Gaselee J observed insolvency, taxation or other that authority was not required to departments from one another was establish that proposition. one thing, as such departments Sometimes that proposition has often worked from different been overstated. For instance, offices and there may be relatively Buller J in Wilson v Rastell external assets. Prince Jefri ing KPMG from continuing to work little movement of personnel ([1792]) 4 TR 753) said, in the con- Bolkiah, the third and youngest on the investigation. The case even- between them. But to erect Chinese text of confidentiality continuing brother of the Sultan of Brunei, tually went to the House of Lords. walls between members who are after the professional retainer, that had been the chairman of BIA for The House of Lords held in the all drawn from the same depart- the ‘mouth’ of the attorney ‘is shut some time until his removal in Bolkiah case that, like a solicitor, ment, and accustomed to working forever’. 1998. He had previously enjoyed a an accountant providing litigation- with each other, was a different We all know that solicitors are close relationship with the Sultan support services owed a continuing matter. The court noted that physi- required to disclose certain confi- but had fallen out of favour. professional duty to a former cal segregation was not necessarily dential information under compul- Between 1996 and 1998, Prince client, following the termination of adequate, especially when it relat- sion of law. That particular issue is Jefri, acting in a personal capacity, the client relationship, to preserve ed to a single department within a not considered here; this article retained KPMG to act for him or the confidentiality of information firm. explores the issue of the duty of one of his companies in private lit- received during the existence of The court in Prince Jefri’s case confidentiality to a client, particu- igation in which he was then the client relationship. That duty concluded on the evidence that larly a former client, and considers engaged. The firm provided exten- was unqualified and required the KPMG had not discharged the in what circumstances can a firm sive litigation-support services of a solicitor or accountant to keep the heavy burden of showing that there successfully erect ‘Chinese walls’ type normally undertaken by solic- information confidential and also was no risk that information in and therefore act for two parties itors. KPMG employed 168 per- not to misuse the confidential their possession which was confi- arising out of related business mat- sons on Prince Jefri’s litigation. information. dential to Prince Jefri, and which ters or litigation. The litigation was settled in March KPMG obtained in the course of a 1998 and KPMG was paid approx- Conflict of interest former client relationship, may The Prince Jefri Bolkiah v imately £4.6m for that work. Lord Millet noted that a solicitor unwittingly come to the notice of KPMG case During the course of that litiga- cannot without the consent of both those working on the new investi- Issues in relation to conflicts of tion, KPMG had been entrusted clients act for one client while his gation adverse to Prince Jefri’s interest and the extent to which with – and acquired extensive con- partner is acting for another in the interests. Accordingly, the court Chinese walls can function legiti- fidential information about – opposite interest. The judge noted granted an injunction restraining mately were considered in a recent Prince Jefri’s financial affairs. that this disqualification had noth- KPMG from continuing to carry decision of the House of Lords in Prince Jefri was subsequently dis- ing to do with the confidentiality of out certain work for the Brunei Prince Jefri Bolkiah v KPMG missed as chairman of the BIA and client information; it was based on Investment Agency. ([1999] 1 All ER 517). Although the Brunei Government in June the inescapable conflict of interest The case raises important the facts related to a firm of 1998 began an investigation into which is inherent in the situation. issues about the effectiveness of accountants, the work engaged in the conduct of the BIA. He continued: Chinese walls as a means of by the accountants was litigation- ‘It is of overriding importance restricting information between related. Accordingly, the principles Chinese walls for the proper administration of jus- different people in the same firm. enunciated by the courts in the KMPG considered that it could tice that a client should be able to Erecting Chinese walls within the Bolkiah case are relevant to solici- accept instructions from the have complete confidence that what same department, such as the liti- tors. Brunei Government as it had he tells his lawyer will remain gation department, where there is The facts of the Bolkiah case are ceased to act for Prince Jefri more secret. This is a matter of perception no consent from the affected these. KPMG is one of the five than two months previously and he as well as substance. It is of the party, is particularly difficult. largest firms of chartered accoun- was no longer a client. Aware of highest importance to the adminis- Effective Chinese walls should tants in the world. The firm was the possibility of conflicts of inter- tration of justice that a solicitor or involve an established organisa- employed as auditors of the core est, KPMG erected so-called other person in possession of confi- tional arrangement to preclude the assets of the Brunei Investment Chinese walls – an information dential and privileged information passing of information from one Agency (BIA) which had been barrier – around the department should not act in any way that might part of the firm to another. G established to hold and manage the carrying out the investigation for appear to put that information at general reserve fund of the the Brunei Government. Prince risk of coming into the hands of Dr Eamonn Hall is Chief Legal Government of Brunei and its Jefri sought an injunction restrain- someone with an adverse interest’. Officer with Telecom Éireann plc.

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Creative Web Sites & Brochures • Winner of 5 Awards Fax: 01 838 92 03 Tel: 087 22 181 22 E-mail: [email protected] VIEWPOINT Rosemary Nelson and the struggle for human rights n 9 December 1998, the my life and, at some point, I just Secretary General, Kofi Annan, OGeneral Assembly of the switched off. I caught the main commenting on the Declaration on United Nations adopted the news events and built up the rest of human rights defenders: ‘[It] rests on Declaration on human rights defend- my limited understanding of the sit- a basic premise that when the rights ers, marking an important milestone uation through futile arguments of human rights defenders are violat- in the struggle towards better protec- which seemed to focus exclusively ed, all our rights are put in jeopardy tion of those at risk for carrying out on what colour of green you repre- and all of us are made less safe’. I legitimate human rights activities. sented. Concerns over discrimina- know that we do not have the Article 12.2 of the declaration tion in employment, challenges to courage of the lawyers in Turkey – says: ‘The State shall take all neces- the notion of symmetry (‘one side is or even of Rosemary Nelson herself sary measures to ensure the protec- as bad as the other’), never entered – to put ourselves on the front line, tion by the competent authorities of the discourse. It took me until last but this does not excuse us from everyone, individually and in associ- year to learn that, despite fair doing nothing. We can, at least, ation with others, against any vio- employment legislation and policy request proper and independent lence, threats, retaliation, de facto or Rosemary Nelson: assaulted, interventions, Catholic men remain investigations of such violations. If de jure adverse discrimination, pres- abused and threatened by the RUC more than twice as likely to be there is one lesson I have learned sure or any other arbitrary action as a unemployed than their Protestant from my human rights work, it is that consequence of their legitimate exer- Catholic’, I would neither feel – counterparts. Moreover, within respect for the rule of law needs to be cise of the rights referred to in this nor be seen to be – impartial and senior public administration, the worked at and it is people who make declaration’. thus my value as an objective, Catholic share of specialist staff the difference. The murder of Lurgan solicitor independent human rights lawyer (lawyers, architects and so on) actu- I leave you with the words of Rosemary Nelson reminds us that would be diminished. And so up ally decreased between 1990 and Rosemary Nelson when she such words ring hollow unless the until one year ago, I had spent a 1995 (to just 14.9%). addressed the US House of spirit of the declaration forms part of number of years defending vil- It takes time and effort to achieve Representatives’ human rights sub- the culture of a society to respect lagers who had been ethnically even a limited understanding of a committee last September: ‘I went to human rights and uphold the rule of cleansed from their villages in conflict situation and, as conflicts in the police lines and identified myself law. South-East Turkey, torture victims, Africa, the Middle East, Bosnia and as a lawyer representing the resi- I first met Rosemary Nelson about and lawyers who were under attack now Kosovo remind us, there are no dents. I asked to speak to the officer a year ago, shortly after I started a from the State for highlighting simple quick-fix solutions. in charge. At that point, I was physi- new job in Belfast. As she told me these violations. I am not sure when or why I cally assaulted by a number of RUC about threats on her life, I listened An example from one case, cur- switched back on again. I think that officers and subjected to sectarian but part of me thought ‘things like rently before the European Court it is a different point for every per- verbal abuse. I sustained bruising to that just do not happen here any- of Human Rights, states: ‘He was son, but this is an appeal to look my arm and shoulder. The officers more’. After all, the Belfast stripped naked and slapped around, behind the events of Rosemary responsible were not wearing any Agreement was just hot off the press, and his testicles were squeezed. He Nelson’s murder. The Independent identification numbers and when I election campaigning was under was threatened he would be killed Commission for Police Complaints asked for their names I was told to way, and even when the talk at the if he looked further into cases of (ICPC) states that in 1998 there f–k off. Since then my clients have meeting took on a more sober tone disappearances and village evacua- were 36 complaints alleging police reported an increasing number of whenever Drumcree was raised, the tions’ (ELCI and Others v Turkey, misconduct against solicitors. There incidents when I have been abused future looked bright. Admissibility Decision, European is a small number of firms at risk, as by RUC officers, including several Even though I would profess to Commission of Human Rights). evidenced by the fact that over half death threats against myself’. G have a strong interest in human But, if the truth be told, the main of the complaints originated from rights, I had for many years placed reason I did not get involved was two firms. Caroline Nolan is a solicitor and ‘the North’ off limits. I justified this that it seemed as if ‘the Troubles’ But her murder has wider impli- Director of the West Belfast by arguing that, as a ‘southern had always been there throughout cations, as highlighted by the UN Economic Forum.

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MAY 1999 LAW SOCIETY GAZETTE 9

VIEWPOINT Letters

The many dangers of below-cost selling

From: Ian Scott, Arthur Cox, ethical implications. ● Does it take into account any to outlaw the practice of below-cost Dublin If one accepts that healthy com- value which the solicitor might selling in the grocery trade, should ‘There is hardly anything in this petition is a normal fact of profes- add to the transaction? not consideration be given to the world that some man cannot make sional life and is to be encouraged, feasibility of introducing some sim- a little worse and sell a little the practice of below-cost selling Third, is such a practice in the pro- ilar type of rules in the context of cheaper, and the people who con- in such circumstances would seem fession’s best interest: For example: the provision of legal services? sider price alone are this man’s to raise at least four essential ques- ● Does it enhance the image of the In at least some cases, when all lawful prey’. tions. profession in the public’s per- is said and done, it is probably not o wrote an American, John First, is such a practice in the ception? unfair to suggest that clients of any SRuskin, over 100 years ago. It client’s best interest? For example: ● Does it avoid the danger of the solicitor who engages in such prac- is perhaps another way of illus- ● Does it encourage the solicitor solicitor’s services being deval- tice must indeed, in the words of trating the all-too-familiar notion to apply sufficient time and the ued in the eyes of the client in John Ruskin, run a considerable that you get what you pay for, a requisite professional standards particular and the public in gen- risk of becoming ‘this man’s lawful concept which appears to be as throughout the transaction? eral? prey’. relevant as we approach the new ● Does it ensure that the solicitor ● Does it differentiate between And surely, even in the modern millennium as it was over a cen- will not try to cut corners? and cost and value for money? and ultra-competitive environment, it is tury ago. Indeed, it is probably ● Does it necessarily avoid a situ- ● Does it give due recognition to also fair to suggest that the labour- fair to say that this maxim can ation whereby the solicitor will the often intangible nature of er must still be worthy of his or her readily be applied to the current be tempted to pass the matter on legal services? hire? and not infrequent practice of to some junior person who may below-cost selling. not have the necessary expertise Fourth, is such a practice to be The modern practice of solici- or experience? encouraged or condoned by the Your views tors deliberately quoting a level of profession? Your letters make your magazine fees in the knowledge that this Second, is such a practice in the If the proper answer to each of and may influence your Society. level is well below the cost to them solicitor’s best interest? For these questions is in the negative, Send your letters to the Editor, Law Society Gazette, Blackhall of providing the services con- example: then it might reasonably be argued Place, Dublin 7, or e-mail us cerned, for the sole purpose of ● Does it mean that the solicitor that, by engaging in such a practice, at [email protected] attracting new clients or generating will make a profit or at least solicitors do little to enhance the or you can fax us new business (as opposed to a gen- break even on the case? image of the profession in the eyes on 01 672 4801 uine pro bono context), raises a ● Does it ensure that the solicitor of the public. Furthermore, the number of questions, some of will be properly motivated issue would also seem to beg the which might well be said to have throughout? and question that, if it has been seen fit

Dumb and dumber From: Niall Murphy, Lennon Not surprisingly, few enough can- housing a dance club, was also the entertainment provided there. Heather & Co, Dublin didates put themselves forward at home of what was known colloqui- ‘Oh, right’, said my friend, ‘the lap- I was recently consulted by a third- election time. ally as ‘Lapland’ (the answer’s in the top dancing’. level students’ union which name) with which stag night veter- wished to have its constitution From: Katherine Finn, Dublin ans might be familiar. Friends of Niall Murphy wins the bottle of cham- pagne this month. redrafted. I was asked for my Much has been said in recent times mine from Scotland, in town last thoughts on any particular sec- about the continued blurring of the winter for the standard stag week- A bottle of the finest champagne will go tions that would have to be lines between work and leisure, end, left a message on my voicemail to the reader who sends in the funniest contribution to Dumb and dumber each altered. One which caught my eye what with more people working cancelling a provisional arrange- month. was the following provision relat- from home, and facilities such as ment to meet for drinks, saying that Send your examples of the wacky, ing to breaches of the various reg- mobiles and laptops to connect us they had ‘stuff arranged’ for that weird and wonderful to the ulations: ‘The Commission shall to our workplace wherever we hap- evening. Phoning a girlfriend to let Editor, Law Society hear appeals on matters relating pen to find ourselves. But the fol- her know that the meeting was off, Gazette, Blackhall Place, Dublin 7, or you can fax us to elections and referenda and lowing is probably going too far. I speculated that perhaps the stag on 01 672 4801, or e-mail us may execute candidates who Columbia Mills, on Sir John night participants had found their at [email protected] breach electoral regulations ...’. Rogerson’s Quay, in addition to way to Columbia Mills to avail of

MAY 1999 LAW SOCIETY GAZETTE 11 NEWS

BRIEFLY Law Society backs calls for inquiry UN to run Irish refugee law training seminar into murders of solicitors Lawyers working in the area of refugee law are being invited to he Law Society of Ireland has to ensure that those authorities a UN seminar on the subject Tadded its voice to the chorus of charged with the task of investi- later this month. The United calls for an independent judicial gating and prosecuting crime on Nations High Commissioner for inquiry into the murder of Belfast the island of Ireland must com- Refugees (UNHCR) is organising solicitor Pat Finucane ten years mand the respect and support of a refugee law training day ago. It has also demanded that the the entire community and of the through its Irish office in the current investigation into the mur- legal profession, and Premier Business Centre, Lower der of Lurgan solicitor Rosemary Having regard to the self-evi- Baggot Street, Dublin 2, on Nelson be conducted ‘to the high- dent fact that public confidence in Wednesday 26 May from 10am est possible standards’. the impartiality of such authori- to 1pm. Anyone interested At a meeting of the Society’s ties plays an essential role in the should contact Sam Jerram, Council – the first such meeting pursuit of peace and reconcilia- UNHCR, Dublin, tel: 01 6328679. since the murder of Rosemary tion on the island of Ireland, and Nelson – it unanimously passed a O’Connor: ‘The murder of a lawyer Having regard to the conclu- in any country is a vile act’ Tommy Connolly correction resolution to this effect (see full sions and recommendations con- An article in last month’s text below), drawing attention to pendence and without fear of tained in the report of the United Gazette (Dishonest politicians, Basic Principle 16 of the United intimidation or assassination’. Nations Special Rapporteur with page 5) referred to Paddy Nations’ Basic principles on the Since the Council passed its particular reference to the cir- Connolly SC as appearing for role of lawyers which states that resolution, the RUC has cumstances leading up to the the respondent in Dillon v governments are obliged to announced that John Stevens, murder of Patrick Finucane, Minister for Posts and ensure that lawyers can perform deputy commissioner of the solicitor, and the grave concerns Telegraphs (1981). Counsel for their professional duties ‘without London Metropolitan Police, has arising from the murder of the Minister was, in fact, Tommy intimidation, hindrance, harass- been asked to carry out an investi- Rosemary Nelson, Conolly SC. ment or improper interference’. gation into the Finucane murder in That this Council calls on all The Council resolution added that the light of the report from the UN such authorities: Solicitor suspended from the authorities charged with Special Rapporteur, Param 1) To take all necessary steps to practice investigating both murders must Curamaswamy. implement the remaining rec- The High Court has suspended ‘command the respect and sup- Full text of the unanimous ommendations of the United solicitor Niall Joseph O’Connor port of the entire community and Council resolution: Nations Special Rapporteur of from practice for ten years. He of the legal profession’. ‘Having regard to the UN Basic 5 March 1998 including the was practising under the style Commenting on the Council principles on the role of lawyers holding of an independent judi- and title of O’Connor Mohan & resolution, Law Society President and in particular Basic Principle cial inquiry to investigate the Company Solicitors. Patrick O’Connor said: ‘The mur- 16 under which governments are outstanding questions that der of a lawyer in any country is a obliged to ensure that lawyers are remain in the case of Patrick Society warning on vile act that strikes at the rule of able to perform all of their profes- Finucane, and scam letters law and society. A democratic sional functions without intimida- 2) To ensure that the investigation The Law Society is alerting solic- society needs – and demands – tion, hindrance, harassment or into the murder of Rosemary itors that scam letters and faxes that lawyers be in a position to improper interference, and Nelson is carried out to the have started arriving on mem- represent their clients with inde- Having regard to the necessity highest possible standards’. bers’ desks once again. Sent from Nigeria, their authors are telling a variety of implausible Views sought on conveyancing changes stories of vast sums of cash he Law Society’s Con- Suggestions for revising the semi-State status (see last issue, which can be laundered from Tveyancing Committee is seek- Conveyancing handbook should page 13), there is an opportunity to that country if they can access ing members’ suggestions for arrive before the end of this have the Land Registry rules an Irish citizen’s bank account. improving and updating the month. revised. The committee is inviting The promised return for aid- Conveyancing handbook, which is And with the upcoming con- practitioners to submit suggestions ing them can run into millions currently under review. version of the Land Registry to for reforming the rules by the end of of pounds. The latest example, June 1999. The committee will col- from ‘Oyibo Martins of the late these suggestions and submit Nigerian National Petroleum Goodbodys launches tech law site them to the Registrar of Titles for Corporation’, is offering 30% of Expert advice on key areas of technology law is now available on a site set inclusion in any new rules to be con- $32 million. The Society is warn- up by Ireland’s largest solicitors’ firm, A&L Goodbody. The firm has set up a sidered in conjunction with the leg- ing solicitors to ignore these dedicated technology sub-site on its new-look web site ‘in response to the islation necessary for conversion. It ‘get rich quick’ offers, and has need for up-to-date information on legal issues in this area’. Key areas on adds that anybody who has already reported the matter to the which the site focuses include information technology, intellectual proper- written to the Society in connection Criminal Assets Bureau. ty, Internet law, e-commerce, encryption, telecoms law and Y2K issues. with law reform in this area need not put pen to paper again.

12 LAW SOCIETY GAZETTE MAY 1999 NEWS Chief Justice moves to implement Denham proposals on judicial ethics

new body which will act as a vidual members of the judiciary. And the Denham commission Awatchdog over judicial ● Separately, the Denham com- wants to see greater resources ear- ethics and handle complaints mission report also considers the marked for mediation and marriage against individual judges is to be workings of the family courts sys- counselling. ‘The present pro- set up by a committee established tem. An earlier Law Reform gramme of expansion of the pub- by Chief Justice Liam Hamilton Commission report in 1995 licly-funded mediation service, in the wake of the Sheedy affair. revealed that family courts were which has centres in Dublin, The move follows the Denham buckling under the pressure of Limerick, Cork, Tralee and Wexford, commission’s call for such a long lists and delays. At the same and which plans further centres for group to be established immedi- time, cases where non-legal inter- Dundalk, Galway and Athlone in the ately. vention could have resulted in near future, is welcomed and should Mr Justice Hamilton announc- agreement were frequently coming be continued’, it says. ed that he, High Court President to court because there was no sys- It also calls for mediators to be Frederick Morris, Circuit Court tem of case management. Mrs Justice Susan Denham: trained and certified before they Ethics watchdog, but no change President Esmond Smyth, District The report now recommends to law terms qualify for practice. Similarly, it rec- Court President Peter Smithwick, that there should be family law ommends that approved, publicly- Justice Susan Denham, Justice divisions established in District, communicate with the public. In funded bodies should provide a mar- Ronan Keane and the Attorney Circuit and High courts. These the longer term, the report says that riage counselling service, using General David Byrne would form should be allocated improved there should be planned progress to trained and certified practitioners. a judicial committee to set up the resources and be staffed with ade- the regional family courts system On the question of the length of self-disciplining body. quate numbers of personnel, recommended by the Law Reform law terms and vacations, the In a statement, the Chief selected on the basis of training, Commission in its 1996 Report on Denham commission believes no Justice said that the committee experience and their ability to family courts. change is necessary, arguing that the will: ‘advise on and prepare the central issue is access to the courts, way for the establishment of a which has been considerably judicial body which would con- improved since extra judges were tribute to high standards of judi- UK’s Internet providers appointed on foot of the Courts and cial conduct, establish a system Court Officers Act, 1995. for handling complaints of judi- caught in libel web While the report says that delays cial conduct, and other activities Internet service providers (ISPs) have been drawn into the libel web fol- in all courts have generally been such as are taken by similar bod- lowing a recent judgment in Britain. An English High Court judge ruled reduced, it does pinpoint some hold- ies elsewhere’. He pledged that that ISPs who provide access to the World Wide Web are liable as publish- ups. On 26 June last year, the aver- the committee would begin work ers if they knowingly carry defamatory material on their servers. age wait between the date of the immediately. Justice Morland ruled that Demon, one of the UK’s biggest ISPs, was not order for return to trial and the actu- The recently-published report covered by section 1 of the UK Defamation Act 1996, under which an indi- al trial was just over 14 months on of the Denham commission* vidual can establish a defence of reasonable care or ignorance of the average. In the case of rape trials, called for the establishment of defamation. The company carried an anonymous posting to a newsgroup this wait was ten months. The just such a new body and recom- which defamed university lecturer Laurence Godfrey. longest delays in the Circuit Court mended that it should be headed In a pre-trial hearing, the judge held that the libel continued to be pub- were nine months (in Cork), while by the Chief Justice and could lished by the defendants even after they had been notified of the posting’s the other circuits had a maximum include retired judges. The docu- defamatory content by Mr Godfrey. The judgment sparked immediate con- wait of six months. ment stressed that the new watch- troversy in Britain, with some lawyers branding it a victory in the battle to The report advocates keeping dog’s functions should include force responsibility on ISPs, and others warning that it has major implica- vacations on the grounds that there is monitoring judicial ethics and tions for free speech. access to the courts during these handling complaints against indi- periods when it is needed urgently, and because, in any case, court work continues throughout the year. The Society ‘regrets’ Quinlan resignation group also argues that the introduc- tion of new technology and the new he Law Society has said that Quinlan was a popular, able and ‘It is clear that he is resigning Courts Service will make the system Tit regrets the resignation of effective County Registrar. His because of a mistake in his per- more efficient. solicitor and Dublin County efforts contributed to the dramatic ception of the confidentiality by Registrar Michael Quinlan as a reduction in the delays in hearing which he was bound in relation to * Working group on a courts com- result of the continuing fall-out cases in the Dublin Circuit Court his communication with Mr mission: sixth report (November from the Sheedy affair. in recent years. The solicitors’ Justice O’Flaherty. In circum- 1998), available from Government Commenting on Mr Quinlan’s profession is well aware of the stances other than the present Publications Sales Office, Sun departure, Law Society President fine work he has done over many ones, he would not have had to Alliance House, Molesworth St, Patrick O’Connor said: ‘Michael years and is sorry to see him go. resign’. Dublin 2, price £15.

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Please return to Law Society Gazette, Blackhall Place, Dublin 7. NEWS Young male solicitors in Dublin firms come out ahead, says survey oung solicitors in large prac- median income from £18,500 for found that younger members in the country (£20,000). This differ- Ytices are earning considerably newly-qualified solicitors to Dublin practices are earning a ence can be partly explained by more than their counterparts in £29,000 for those qualified for higher median income (£25,000) the fact that almost all the large small and medium-sized firms, five years. Median income is that than those employed in the rest of practices (20 solicitors and over) while those based in Dublin come income that divides the sample in are located in Dublin. out ahead of their regional col- half: that is, 50% of the sample Figure 1: median salary The survey also found young leagues, writes Gabriel Matthews earn the median income or less, by years qualified male solicitors were earning a of Insight Statistical Consultancy. and 50% earn the median income higher median income (£24,000) Newly £18,500 And young male solicitors are or more. It is used in preference to qualified than females (£21,500). generally earning more than their the mean as a measure of average Over These differences tend to per- £19,960 female colleagues. income since it is not affected by 1 year sist when key variables were Over These are among the main find- extreme values in the sample. £22,500 examined simultaneously, al- 2 years ings of a questionnaire sent last When analysed by size of prac- though less so in the case of gen- Over £25,000 summer to 1,285 young solicitors tice, the survey shows that young 3 years der (as shown in Figure 2). This by the Law Society’s Younger solicitors in large practices are YEARS QUALIFIED Over illustrates the large difference in £24,500 Members’ Committee. The survey earning considerably higher medi- 4 years median income between those aimed to gain information about an incomes (£29,000) than those 5 years £29,000 working in large and small/medi- the salary levels of solicitors who employed in medium-sized prac- um practices. This difference is £0 £10,000 £20,000 £30,000 are qualified for five years or less, tices (£21,625) and small prac- MEDIAN SALARY consistent across gender and years and the 500 replies (representing a tices (£20,000). The survey also qualified. response rate of approximately The next largest difference in 39%) were then independently the data is between those quali- Figure 2: median income by region, practice size, analysed by Insight. In interpret- fied less than three years and years qualified and gender ing the data, the important those qualified three years and assumption is that the people who MEDIAN SALARY REGION AND PRACTICE SIZE over. This difference is consistent choose to respond are not different Dublin Dublin Outside Total across size of practice and gender Years qualified Gender less than 20 20 and over Dublin from those who did not respond. It Female £20,000 £25,000 £18,000 £20,000 and region, but is slightly less Less than 3 is also worth bearing in mind the Male £21,000 £28,000 £18,000 £21,000 pronounced outside Dublin. natural tendency to understate (or Female £25,000 £33,500 £21,000 £24,000 When all variables are examined, 3 and over overstate) and be secretive about Male £28,000 £34,000 £22,000 £28,000 median income is consistently one’s income. Notwithstanding Total £23,000 £29,250 £20,000 £22,000 higher in Dublin than outside these caveats, and assuming the SAMPLE SIZE REGION AND PRACTICE SIZE Dublin. respondents are representative of Dublin Dublin Outside Total Finally, there are smaller differ- those surveyed, the sample sizes Years qualified Gender less than 20 20 and Over Dublin ences in median income between Female 70 33 72 175 are reasonable for all comparisons Less than 3 males and females when region, made in this report. Male 47 17 35 99 practice size and years qualified Female 42 24 55 121 Figure 1 illustrates salary by 3 and over are controlled for. Again, this dif- Male 41 18 28 87 number of years qualified, and Total 200 92 190 482 ference is more evident in Dublin shows an incremental rise in than outside the capital. Bigger and better course for apprentices giant step towards achieving can be physically accommodated been eliminated. The Society will Education Policy Review Group Athe Law Society’s profes- in the lecture theatre in Blackhall then be in a position to accommo- last October, will exist in proto- sional training vision for the future Place. The temporary availability date without any unreasonable type form on these courses. will be taken on 17 May when a of the newly-refurbished facilities delay the 300 apprentices which Designed by the professional staff new professional course, compris- in Griffith College has created the the Education Policy Review of the Law School under its ing 300 apprentices, starts at opportunity to run two much larg- Group Report anticipates will Principal, Albert Power, it will Griffith College, South Circular er professional courses. The effect became qualified to enter on pro- focus much less on lectures and Road, Dublin. The course will will be to eliminate the unaccept- fessional course each year for the more on the practical application continue until 15 December. A ably long delays whereby, but for foreseeable future. of the reading undertaken by the second professional course, also this, apprentices would have been The new courses in Griffith students, together with interactive involving 300 apprentices, will be waiting two years or more to begin College will not merely be bigger; tutorial exercises and an increased run between February and October their professional course. they will also be better. This is focus on acquiring legal skills. 2000. When the new Law School because the educational philoso- The courses will be longer than The normal number of appren- building opens to receive its first phy adopted by the profession as a has been the case up to now to pro- tices on a professional course is professional course in September whole, with the 76% approval vote vide the additional absorption time 100, which is the maximum that 2000, the waiting list will have for the recommendations of the which has been lacking in the past.

MAY 1999 LAW SOCIETY GAZETTE 15 AllAll thethe nene FitFit toto pp

Libel reform could be just over the horizon, to the media’s delight and relief. But in a move that could end up seriously restricting newspapers and broadcasters, privacy legislation may not be far behind, and may even be a quid pro quo for defamation changes. Barry O’Halloran interviews the interviewers

alancing the public’s right to know with an individual’s right to their good name is a legal high-wire act. And there are many in the media who claim they could well be left without a safety net when things go wrong. For the last eight years they have been waiting impatiently for four successive gov- Bernments to reform the libel laws, which they claim are unfair, discrimi- natory and unnecessarily limiting. Barrister and former Progressive Democrat TD, Michael McDowell SC, provided them with a brief flicker of hope when he published a pri- vate member’s Bill on defamation reform during the last Dáil. His pro- posals were shot down by the then Equality and Law Reform Minister, Mervyn Taylor, who said the Government was considering bringing for- ward its own legislation. But the Rainbow Coalition faded from the hori- zon before ever getting around to it. So the law remains the same, much to the irritation of newspaper editors and shareholders, who are still wait- ing for that elusive crock of gold two years after the end of the rainbow. When the current administration came to power, both the Taoiseach Bertie Ahern and Justice Minister John O’Donoghue, who took over the law reform brief, indicated that the Government would consider chang- ing the libel laws. At the same time, they tentatively suggested that pri- vacy legislation, guaranteed to hamper some media activities, might also become a reality.

16 LAW SOCIETY GAZETTE MAY 1999 COVER STORY ewsews that’sthat’s print?print?

While there has been no movement in either direction yet, a Department of Justice spokesman confirmed to the Gazette that the ini- tial work on reforming defamation legislation is underway. ‘Some of our senior officials are working on it, but it’s not possible at this stage to give any kind of indication as to when the new legislation might be ready’, the spokesman said. He added that the new law would be in line with the pro- posals made by the Law Reform Commission (LRC) in 1991. Broadly speaking, the LRC document recommends repealing the Defamation Act, 1961 and replacing it with new legislation. In its final Report on the civil law of defamation, the commission called for the dis- tinction between libel and slander to be abandoned, and replaced with a new cause of action in defamation which would not require proof of spe- cial damage. In the document, this new form of defamation was defined as the pub- lication, by any means, of defamatory matter concerning the plaintiff. Defamatory matter was defined as material which is untrue and tends to injure the plaintiff’s reputation in the eyes of reasonable members of the community. Publication was defined as the intentional or negligent com- munication of defamatory matter to at least one person other than the plaintiff.

Position of the newspaper lobby In the eyes of the National Newspapers of Ireland (NNI), the body which represents the owners and managers of all daily and Sunday papers pub- lished in this country, such a definition does not go far enough. In its response to the LRC proposals, the NNI called for defamatory matter to be defined as ‘untrue matter which injures the plaintiff’s reputation’. The organisation argues that there should be no movement away from the common law position that defamatory matter should consist only of words which are untrue. But the LRC recommended several key changes which newspaper edi- tors are adamant that they want to see in any new law. The first is a pro-

PIC: ROSLYN BYRNE posed change to order 22, rule 6, of the Rules of the superior courts which would allow defendants to lodge money with the court without admitting liability. In this situation, if a case goes to trial and the plaintiff is awarded damages amounting to less than the sum lodged, he pays the costs. The NNI wants to see this change introduced without delay, and

MAY 1999 LAW SOCIETY GAZETTE 17 argues that the current situation discriminates unfairly against anyone tory meaning when he is not in a position to establish their untruthful- defending a defamation suit. ness’. While not demanding that the plaintiff should give detailed evi- Michael Kealy, a partner in Dublin solicitors McCann Fitzgerald – and dence proving the statement’s falsity, the industry body wants to see him the man who advised the NNI on its submissions and responses to the assert that the words are untrue and be open to cross-examination on this LRC – believes that the change will benefit plaintiffs and defendants point. alike. He argues that, on the one hand, it allows the defendant to limit his Brian Looney pitches it a lot stronger than this. ‘Another thing I costs while, on the other, giving the plaintiff an easy way out of litiga- would like to see happen is the transfer of the burden of proof to the tion. He points out that taking a case inevitably means re-opening the plaintiff’, he says. ‘This is another example of the way the current law original wound to the plaintiff’s discriminates against the media. reputation and airing it in a public We have to prove that we are forum. This can result in the slur innocent, but in most other cases being re-broadcast to an audience the person who makes the allega- larger than the one which heard or tion must prove it’. read it originally. Both Looney and O’Regan The editor of The Examiner stress that reform – particularly in newspaper, Brian Looney, singles those three areas – is vital, but out this proposal as the one which they are not optimistic about the he and his peers would like to see prospects of a change. Instead, introduced without any further they feel that politicians and oth- delay. ‘This is one of several ers are happy to leave the law the things that we, as an industry, way it is. ‘There’s a lot of vested have been looking for and it interest in leaving things the way would be a first step towards they are’, Looney argues, ‘and that reform’, he says. ‘In all other civil The Examiner’s Brian Looney: The Star’s Gerry O’Regan: ‘I would includes the legal profession. cases, you can make a lodgement ‘People have a right to have no problem with some kind Libel is a very lucrative business’. their privacy’ of ombudsman’ in court. This would make a huge The two editors’ concerns are difference in the way in which libel cases are handled’. practical, but Michael McDowell feels that the law must tackle the ques- Looney’s opposite number at The Star, Gerry O’Regan, agrees that a tion of balancing the public’s right to information against an individual’s lodgement system would make a huge difference, but he also stresses the right to his reputation. ‘The right to be fully informed carries with it the importance of allowing defendants to apologise without admitting liabil- inevitable risk of accidental disinformation’, he says. ‘What’s needed is ity. ‘That is something that must be taken into account as well’, he some kind of press council and right of redress’. This, he adds, should argues. ‘If someone is libelled because of a genuine mistake, because carry with it an obligation on newspapers to correct and retract wrong somebody gets a name wrong or a caption wrong, or any of the things statements. that can go wrong in the hurly-burly of producing a newspaper, then it is ridiculous that this can lead to an expensive court case’. Striking the right balance The LRC also recommended that if there was evidence that a defen- He believes that the ideal balance can be struck somewhere between the dant had made – or offered – an apology, then this should not be con- current Irish position and the American position outlined in New York strued as an admission of liability when issues of fact are tried by the Times v Sullivan. In this case, the US Supreme Court ruled that the right jury. This evidence can also be given in mitigation of damages. The NNI to freedom of expression left favours this change, but wants to see a statutory provision obliging the public figures, including judge to ‘give due and proper weight to an apology in his charge to the prominent business people, jury’. open to ‘robust’ comment. Libel r His colleague Adrian key recommend Shifting the burden of proof Hardiman SC disagrees. He The existing presumption of falsity is another major bugbear, and one argues that the current regime ● Distinction between libel and slan- which newspaper editors claim effectively shifts the burden of proof onto strikes the right balance and der to be abolished and replaced their shoulders. In its original consultation paper issued in 1989, the LRC acts as a break on otherwise with a new cause of action in recommended retaining this presumption on the basis that defendants irresponsible commercial defamation, not requiring proof of could still rely on a new defence of reasonable care. After this idea was operations with the resources special damage vigorously rejected by the newspaper lobby at the submission stage, a to fight lengthy court battles. ● Defamation defined as the publi- majority of commission members executed a neat about-face while a ‘We are not talking about cation by any means of material minority stuck to their guns. public interest bodies here; which is untrue and tends to injure So while the final report states that in all cases the onus should be on these are commercial enter- the plaintiff’s reputation in the the defendant to establish that the words complained of are untrue, it also prises with a lot of clout’, he eyes of reasonable members of the airs the minority view. says. community This states that: ‘The person who asserts, from his sources of infor- ‘A plaintiff with average ● Order 22, rule 6 of the Rules of the mation, that a particular state of affairs exists should bear the burden of means takes a huge risk if he superior courts to be amended to proving his assertion’. The NNI believes that the current situation – that decides to sue these people. allow defendants to lodge money is, the presumption of falsity combined with the imposition of strict lia- They talk about vulnerable with the court without admitting bility – skews the law in the plaintiff’s favour and places a dual burden newspapers, but that is disin- liability on the defendant. genuous. If Proinsias de ● Evidence that the defendant It argues that ‘the law cannot be correct if it allows a plaintiff to main- Rossa had lost his case made or offered an apology not tain an action merely by showing that the words are capable of defama- against the Sunday

18 LAW SOCIETY GAZETTE MAY 1999 COVER STORY

Independent, he would have been bankrupted. His opponent was not Looney and Gerry O’Regan believe this is a fair trade-off. bankrupted’. ‘I would have no problem with some kind of ombudsman’, O’Regan Hardiman would agree to libel reform only if the press itself showed says. ‘I would not think that there is a major problem with invasion of pri- evidence that it was prepared to change its ways. But instead he believes vacy in the Republic of Ireland’. His Examiner counterpart also favours that the Irish media is getting less responsible, and is in fact on the verge this approach. ‘We need a press ombudsman with teeth’, says Looney. of imitating the worst excesses of the British tabloids during their heyday ‘Somebody who can look after the interests of the ordinary person’. in the 1980s. Looney himself has strong views on privacy. ‘People have a right to Curbing this intrusive kind of media behaviour may not be far behind their privacy. When the News of the World ran a story claiming that Jim libel reform on the Government’s McDaid, the Minister for agenda. In 1996, the LRC pub- Tourism, was seeing RTE news- lished a consultation paper on reader Anne Doyle, I instructed Privacy: surveillance and the my newsdesk not to touch the interception of communications. story unless either of them issued Of key concern to the media is a a statement’. recommendation that the Not every case is as clear cut as Oireachtas should create new torts that, and not every paper has a and criminal offences that could clear-cut policy in this area. potentially impact directly on Newspaper readers and TV view- reporters and photographers. ers follow so-called human inter- These new torts include inva- est stories as well as the hard sion of a person’s privacy by means news, often with a lot more inter- of surveillance and the publication est. And celebrities, who depend or disclosure of material obtained on popularity or even notoriety, through invasive surveillance. Two Michael McDowell SC: ‘I am Adrian Hardiman SC: ‘These exploit this. O’Regan points out of the proposed offences are direct- very suspicious of extensive are commercial enterprises with that Princess Diana, allegedly the privacy laws’ a lot of clout’ ly relevant to the media: infringing victim of media excess, courted a person’s integrity by observation (for example, by photography, TV the press and used it for her own ends. He also adds that all media, broadcast or video recording) without their consent, and communicating upmarket or otherwise, covered the story of her death and funeral with recorded observation without consent. These would be actionable in the exactly the same level of enthusiasm. High Court, and civil legal aid would be available to plaintiffs. McCann Fitzgerald’s Michael Kealy argues that privacy legislation is Such a development would effectively end the practice of ‘doorstep- a bad idea, first, because it will provide useful camouflage for powerful ping’ – that is, where reporters and photographers cold-call to someone’s people and, second, because its parameters would be difficult to draw. ‘At home in search of a story. In this day and age, you don’t have to be a Spice the end of the day, it will be down to judges to decide, and if you have a Girl with footballer fiancé to get this treatment; ordinary people can also situation where the public interest clashes with someone’s right to priva- wake up to find telephoto lenses trained on their kitchen windows. cy, they will interpret that very narrowly’, he argues. And often when ordinary people find themselves in the glare of the Michael McDowell agrees that the wrong people will benefit from pri- media spotlight, it’s at a time when they could least do with the attention. vacy laws. ‘I am very, very suspicious of extensive privacy laws. For example, if a family becomes news-worthy because it has been Harassment and invasion of privacy are likely to end up as a protection bereaved by some high-pro- for the rich and powerful. These people will just refuse to be confronted file tragedy, relatives can find by journalists and use the courts. I don’t believe it would be in the public themselves answering the interest’. reform: door to reporters seeking ations from LRC interviews and pictures. Defining ‘the public interest’ At the same time, ordinary Self-regulation is the media’s answer to the proposal. Already both the to be construed as admitting lia- people sometimes court the National Union of Journalists (NUJ) and the NNI have codes of prac- bility when a jury tries issues of media, believing it can help tice forbidding journalists from invading others’ privacy, but these fact them in some way. The fami- carry one qualification: ‘unless it is in the public interest’. The NUJ’s ● Presumption of falsity to be aban- lies of missing persons are code makes no attempt to define the phrase ‘public interest’. The NNI doned, with the onus placed on the one example. Many of them does, defining it as ‘detecting or opposing crime or a serious misde- plaintiff to establish that the words believe that hope for a break- meanour, protecting public health and safety, preventing the public complained of are untrue through lies in keeping their from being misled by some statement or action of an individual or ● The introduction of a new defence, loved ones’ faces in the news organisation’. But when it comes to issues beyond these three, it’s up to fair report, carrying with it a right and so actively canvass for individual editors to decide. of reply media coverage. It is these codes that the NNI argues (in its response to the LRC’s pri- ● The defence of fair comment clari- Neither lawyers nor edi- vacy call) can form the basis of an effective self-regulating regime. fied, and the rule that malice tors seem to want privacy leg- These, it says, can be built on and elaborated to meet changing demands. defeats this defence abolished islation in any form, but the The organisation stresses that unless newspapers are allowed consider- ● The introduction of a new defence media appears willing to able scope to gather information, only a distorted picture of current events of reasonable care, allowing defen- accept some kind of redress will emerge. ‘It is therefore important for newspapers that any restriction dants in some cases to show they for ordinary people who feel on the information-gathering process be clear as well as justifiable’, says made all reasonable inquiries into a wronged as newspapers ply the NNI. story before publication. their trade. Working out just what is justifiable in this area could well put every- In fact, editors Brian body back on the legal high wire. G

MAY 1999 LAW SOCIETY GAZETTE 19 Quantu General damag

Assessing the potential level of damages in a personal injury case can often amount to a difficult guessing game, but one that litigation solicitors have to play every day. Robert Pierse discusses recent trends in quantum for general damages and reviews some of the landmark cases

itigation solicitors on a daily basis examination shows that generals at present are have to give an estimate to a client of probably low in catastrophic cases but high in the probable damages that he is relatively minor injury cases. going to get for a particular injury or injuries arising out of an accident. Catastrophic cases LThis is necessary because the solicitor has to The base marker in catastrophic cases such as decide whether he will try the case in the High quadriplegia, serious brain damage and so on is Court or in the Circuit Court. In addition, a Sinnott v Quinnsworth (cited above). In this case, client may very well be trying to borrow to the jury had awarded £800,000 in general dam- keep going until the case comes to court. As ages to a young man who would have to spend there are no guidelines on damages as such in the rest of his life in a wheelchair. The Supreme the Republic of Ireland (unlike the UK and Court slashed that award to £150,000. The then Northern Ireland), this often presents a formi- Chief Justice, Mr Justice Tom O’Higgins, dable task. described the task of the Supreme Court in re- My own view is that solicitors are often too evaluating the generals as an impossible task. quick to send their papers to counsel and rely However, the resulting figure of £150,000 too easily on counsel’s views. Counsel may or (which I regard as the unofficial cap in the may not be more experienced than the solicitor, 1980s) was qualified by a significant sentence in but it behoves us to have a good working the Chief Justice’s judgment: ‘I express that view knowledge of the level of general damages that having regard to contemporary standards and the courts are awarding, difficult and all as that money values’, he said, ‘and I am anxious that may be. Special damages in an ordinary case, there may be new changes and alterations in the on the other hand, are fairly simple to calculate. future as there have been in the past’. I believe that one starts the search for the The table of leading cases (see page 22) level of general damages (‘generals’) by look- shows how that £150,000 ‘cap’ has fared in the ing, first, at the maximum markers emerging 1990s. The Connolly and Coppinger decisions from Sinnott v Quinnsworth ([1984] 1 ILRM were accepted by implication as the correct 52), and then at comparative cases to the type maximum for generals (£200,000) in the 1995 of injury that one is dealing with, although no Allen case in the Supreme Court. As a result, I doctrine of precedent or comparison is, strictly would conclude that a figure of well over speaking, used by our courts. £200,000 for generals is achievable in 1999. As a result of this exercise, a picture may Guidelines issued in the UK in October 1998 emerge on generals as a whole in the particular give a maximum figure of £150,000 for general type of injury (for example, to a finger) and in damages. By comparison, the 1997 Northern the particular case as such (taking into account, Ireland guidelines for maximum generals give a for example, age, occupation and the degree of figure of £400,000. damage to that finger). I believe that such an In Allen v O’Súilleabháin (Supreme Court,

20 LAW SOCIETY GAZETTE MAY 1999 PERSONAL INJURIES um leap ges in the 1990s

MAY 1999 LAW SOCIETY GAZETTE 21 PERSONAL INJURIES

347/362-9, 11 March 1997), Blaney J gave the £50,000 in generals by the High Court, and this judgment on the question of general damages. Leading cases was increased to £70,000 by the Supreme Court. (Mr Justice Murphy delivered a separate judg- In November 1998, in Malee v Gaelthorpe, ment on the issue of the appropriateness of the in the 1990s a married woman had suffered seven broken multiplier chosen by the trial judge. That was ● Crilly v Farrington (Feb 1992): £210,000 ribs, bruising to her lungs, fracture of her an interesting judgment, but I am not con- (severe multiple injuries) shoulder blades and dislocation of her collar cerned here with that issue, which relates to ● Allen v O’Súilleabháin (July 1995): bone in two places. The Supreme Court did not ‘specials’.) £205,000 (severe back injury – reduced on disturb the general damages of £75,000. Blaney J’s judgment reviewed the dicta of appeal to £125,000) And on 7 December 1998, in Miley v Daly, Sinnott v Quinnsworth and also referred to ● Hughes v O’Flaherty and Anor (Jan the Supreme Court increased the generals from Connolly v Bus Éireann and Others, and to 1996): £225,000 (‘catastrophic injuries’) £32,000 to £45,000 for the loss of smell. The Coppinger v Waterford CC and Others, ● Connolly v Bus Éireann (Jan 1996): plaintiff had lost her sense of taste for some where in both cases Barr J and Geoghegan J £200,000 (Barr J in his judgment made time but had recovered it. She had also suffered respectively took the view that the maximum some interesting comments on Sinnott from insomnia, pain and depression. generals should be increased to £200,000 for here) injuries which they considered warranted the ● Coppinger v Waterford CC (March 1996): The Celtic Tiger maximum award. Judge Blaney then went £200,000 (in his judgment, Geohegan J said As I mentioned above, I take the view that on: ‘The plaintiff’s injuries cannot be com- it was the maximum available figure) damages in catastrophic cases are not high pared with the injuries in either of these ● Jeffreys v Cahill (May 1996): £200,000 enough, and that damages awarded for minor cases. She is fully capable of living an inde- (agreed generals on third day of trial) injuries are certainly not proportionate to those pendent life, apart from not being able to ● Brady v Doherty (July 1998): £280,000 in catastrophic cases. From a plaintiff’s point bend down to tie her shoelaces. None of her (under appeal). of view, this latter figure is probably welcome, faculties is impaired. This does not minimise but from an insurance company’s perspective it the fact that the plaintiff is suffering from most certainly is not, particularly because of chronic back pain and is prevented by her from £205,000 to £125,000 for a severe back the huge variations that seem to occur in the condition from obtaining normal work. But injury. Circuit Court. the view of the court is that when her situa- November 1997 brought another case of an I regard the award of general damages as a tion is looked at in the light of the type of appalling leg injury before the Supreme Court capital sum. When you remember that in 1998 injuries which attract maximum awards for for review of damages. This time the injuries the capital value of property around Dublin damages a fair and reasonable figure for her were sustained by a 16-year-old male (Ford v (where most of the big awards are made) general damages is the sum of £125,000. Iarnrod Éireann). The Supreme Court increased by 44% in one year, and then look at When this figure is added to the agreed sum increased the award for general damages from what is happening to damages by comparison, of special damages and loss of pension £60,000 to £80,000. you could not accuse the courts of accepting rights, and the figure of £167,728 for future There were also a number of cases of inter- Celtic Tiger growth as a guideline for increas- loss of earnings, the total is a figure of est in 1998. ing damages in catastrophic cases. £366,571, and the court considers this figure On 12 January 1998, Browne v Brady came It is worth recalling here the sentiments should be rounded up to £375,000, so the before the Supreme Court. This 23-year-old expressed by Chief Justice O’Higgins (quoted final award was for this sum’. single woman needed 100 stitches in her face, earlier), where he said that there would be So does this judgment mean that a severe had been rendered unconscious and had also changes and alterations in the levels of dam- back injury (general damages: £125,000) is suffered severe dental injuries. The High Court ages awarded in the future. There has been 62.5% as serious as a quadriplegic injury or awarded her £100,000 in generals, which was some change since then, but no alteration. severe brain injury (general damages: upheld by the Supreme Court. Changes in damages seem to have been based £200,000)? Incidentally, the High Court had In May 1998, Gillick v Rotunda Hospital and on a gradual inflationary factor rather than an awarded the plaintiff in Allen v Another was decided by the Supreme Court. alteration of thinking on capital values. This O’Súillleabháin general damages of £205,000 The plaintiff’s womb had been mistakenly seems all the more necessary in view of the so the Supreme Court effectively reduced the removed by a surgeon. She was awarded low interest rates currently prevailing. award by almost 50%. The assessment of damages is a difficult You will also note that Judge Barr substan- guessing game, and it is important that solicitors tially departed from the £200,000 maximum be as well informed as they can. I believe that indicated in Brady v Doherty (1998), although we should watch developments during this year that case is under appeal. It may have been with considerable interest. One cannot help but settled, but as you know it is rather difficult to get the feeling, on reading recent judgments, discover this type of information. that there may be substantial alterations this year or next year, if a sense of proportionality is to be Other Supreme Court markers brought into the thinking of the judges in the In Kenny v Ryan (SC, 11/3/1990), a young Supreme Court who lay down the markers or woman had suffered appalling injuries to her unofficial guidelines for damages. G left leg. The High Court awarded general damages of £175,000, but this was reduced to Robert Pierse is a Kerry solicitor and the £140,000 in the Supreme Court. Allen v author of Quantum of damages for personal O’Súilleabháin (cited above) was in fact injuries (Round Hall Sweet & Maxwell), the decided on the same day as Kenny v Ryan and second edition of which is to appear later this this case also saw a reduction in generals, year.

22 LAW SOCIETY GAZETTE MAY 1999 REGULATION Law Society’s new complaints procedures

The Registrar’s Committee is the one Law Society committee which most solicitors would prefer to avoid. However, it plays a vital role since it has responsibility for the self-regulation of the profession. And, as John Shaw explains, self-regulation places a particular onus on the Society to ensure that its procedures for dealing with complaints from solicitors’ clients are above reproach

n the last five years, the Law Society has under section 14, whereby an officer of the opened its doors, firstly, by allowing lay Law Society will come to the solicitor’s prac- Imembers to sit on the Registrar’s Committee tice to inspect the file and, secondly, by agreeing to the appointment of ● Where an order is made under section 10 or an Independent Adjudicator. As chairman of the section 14, the solicitor will almost certainly Registrar’s Committee for the last year and a be required to attend a meeting of the half, I believe that these steps have been very Registrar’s Committee. Under the terms of beneficial and that there is a transparent com- the Solicitors Acts, the Society is empowered plaints system which, by and large, has received to collect its costs in respect of an order made good approval ratings from the lay members and under the relevant section. Obviously, where the Independent Adjudicator. an officer of the Society has to travel to a The lay members have furnished an annual solicitor’s office, such costs can be reason- report each year, while the first report from the ably substantial and in one recent case Independent Adjudicator was published in amounted to over £500. It should also be March. In general, the reports are positive, but noted that the above remedies are in addition both the lay members and the Adjudicator have to whatever orders may be made in respect of highlighted one particular area where there is a the complaint itself persistent problem. There is, unfortunately, a ● Where there is a failure to attend without rea- small minority of solicitors who appear to think sonable excuse before a Registrar’s that they can somehow choose not to deal with Committee meeting, it will be regarded as an alleged complaint. This takes the form of prima facie misconduct and therefore render ignoring correspondence received or, worse still, the solicitor liable to be referred to the failing to attend before the Registrar’s Registrar’s Committee Chairman John Shaw Disciplinary Tribunal on this ground alone. Committee when required. It should be noted with Linda Kirwan, Senior Solicitor in the that in order for a complaint to reach the Law Society’s Complaints Section In conclusion, I would like to reiterate that the Registrar’s Committee, it has first to go through principal function of the Registrar’s Committee the secretariat, where 90% of the complaints are the following procedures will be adopted on a is to resolve complaints, not to penalise the resolved. It is only where there is an unresolved trial basis: solicitor (which is the preserve of the complaint or a failure to respond that the matter ● As has been the case up to now, where the Disciplinary Tribunal). But where a solicitor is formally put before the Registrar’s Society receives a complaint against a solici- puts the Society to additional cost and expense Committee. tor, and where the matter cannot be resolved by reason of delay, failure to communicate or Quite clearly, where there is a failure to by phone, a letter will issue requesting the failure to attend, then the Society intends to col- respond, the committee is hampered in dealing solicitor’s views on the complaint lect such additional costs and expenses. with the complaint. Where there is a failure to ● Where there is no reply to this initial letter Most solicitors adopt a co-operative attitude respond to the initial letters from the Law within 14 days, a reminder will issue with the committee when a complaint is Society, then normally the solicitor will be ● Where there is no response to either of the received. It is a fact of modern commercial life requested to attend to explain the position. But above letters, a direction under section 10 of that it is virtually impossible for any solicitor to there have been a significant number of inci- the Solicitors Act, 1994 will issue, requiring avoid a complaint at some stage. Any comments dents where solicitors have failed to attend, the solicitor to deliver the file relating to the or views on the Registrar’s Committee with a which makes the administration of the system in complaint within a specified period and/or view to improving its operations will be grate- those cases virtually impossible. the solicitor may be required to attend the fully received. G Therefore, at a recent plenary meeting of the next meeting of the Registrar’s Committee Registrar’s Committee (which normally sits in ● If there is no response to the direction under John Shaw is Chairman of the Registrar’s divisions to hear complaints), it was decided that section 10, a further direction may issue Committee of the Law Society.

MAY 1999 LAW SOCIETY GAZETTE 23 Workplace the lega Bullying at work is a major contributor to stress-related illness and poor performance at work. In the UK, it is estimated that millions of working days a year are lost as a direct result of bullying, and there is nothing to suggest that the Irish workplace is any better. Pádraig Walsh discusses the legal background to the problem and the possibilities of redress for its victims

ullying is one of the most insidious but employees as within the training and education- apparently hidden features of the al aspects of its function. However, in the event B employment landscape. The bully’s that a victim of harassment in the workplace excuse is usually that he did not intend his wishes to complain to the HSA, it remains actions to be taken as offensive or aggressive, unlikely that that complaint would lead to a suc- with the imputation that the victim is an overly- cessful prosecution. The main reason for this is sensitive individual, unable to accept the routine the HSA’s lack of clear jurisdiction. There is banter of the workplace. But the line between also the practical reality that accidents at work ‘firm’ management and bullying is more appar- will naturally attract priority. ent than real. Invariably, the bully will have a systematic Wilkinson v Downton approach to his behaviour, which over a period The problem with bullying from a legal point is of time will give rise to psychological and phys- that it is an intentional act. The assailant, in spite ical problems. The most common psychological of his possible protestations of innocence, is effects are anxiety, panic attacks, feelings of involved in a systematic and deliberate series of helplessness, reduced confidence, and depres- actions designed to demean the standing of the sion. Physical effects include disturbed sleep, victim. He knows what he is doing and he palpitations, increased blood pressure, irritable knows the result he wants to achieve. Where, bowel syndrome, stomach disorders, chest pains then, is the negligent act? Bullying unfortunate- and headaches. Within an organisation, the ly is beyond the direct reach of general negli- effects can be reduced efficiency and quality of gence principles. It is necessary to look at the work, low morale and an atmosphere of tension, intentional torts. increased absenteeism, and a lack of creativity. In the case of Wilkinson v Downton ([1897] 2 There is no direct reference to the issue of QB 57), the defendant told the plaintiff, as a harassment in the Safety, Health and Welfare at ‘practical joke’, that her husband had asked him Work Act, 1989, or any regulations made under to tell her that he was lying with both legs bro- it. The closest the 1989 Act comes is by virtue ken following a serious accident. This was of section 6(2)(d), which requires the employer untrue. The plaintiff sustained a violent shock to to provide systems of work that are planned, her nervous system. Wright J expounded the organised, performed and maintained so as to principle that a cause of action lies where a per- be, as far as is reasonably practicable, safe and son wilfully does an act to another, calculated to without risk to health. cause physical harm or infringe the other’s legal This has been enough for the Health and right to personal safety, and actually causes Safety Authority to arrogate the area of bullying physical harm to that other person. This is the in the workplace to its jurisdiction. It has issued principle of law which I believe can be used to booklets entitled Workplace stress and Violence pursue a claim by a victim of bullying directly at work, and clearly treats the mental health of against his assailant.

24 LAW SOCIETY GAZETTE MAY 1999 EMPLOYMENTBANNER? e bullying: al issues There are a number of features, not to say dif- Essentially, the law now relies on the ficulties, with pursuing a claim in this form. advances of modern medicine and trusts that it is 1) There is no necessity for direct physical now as possible to reach a clear and reliable contact to cause the injury complained of, diagnosis of psychiatric injuries as it is purely and words alone will give rise to a cause of physical injuries. action. Until recently, one would have been for- 2) The words need not be spoken to the vic- given for thinking that damages for mental tim directly. In the two founding cases for the stress arising from actions over a period of time tort of harassment, Wilkinson v Downton and – as opposed to shock-induced – were unavail- Janvier v Sweeney ([1919] 2 KB 316), the words able. Lord Wensleydale in Lynch v Knight of harassment were spoken directly to the vic- ([1861] 9 HL Cas 577) said: ‘Mental pain or tims. Subsequent cases have established that this anxiety the law cannot value, and does not pre- is not necessary. In Stevenson v Basham and tend to redress, when the unlawful act com- Another ([1922] NZLR 225), the assailant plained of causes that alone’. This accurately threatened to burn down the house of the vic- sums up the old attitude of the courts which tim’s husband. The victim was in bed unwell, adopted the viewpoint of a doubting Thomas, and overheard the comments. She became seri- and awarded damages for physical injuries only. ously ill and as a result of the statement had a A more temperate, though still inadequate, miscarriage. The assailant was found liable view was expressed in Dulieu v White and Sons because his wilful comments had caused the vic- ([1901] 2 KB 669), in which Phillimore J said: tim’s shock. ‘I think there may be cases in which A owes a An even more circuitous route arose in duty to B not to inflict a mental shock on him or Bielitski v Obadiak ([1922] 65 DLR 627). There, her, and that in such a case, if A does inflict such the defendant made a false statement that a per- a shock upon B – as by terrifying B – and phys- son had committed suicide, and this was filtered ical damage thereby ensues, B may have an through three other people before it came to the action for the physical damage, though the ears of the plaintiff, the mother of the ‘suicide’, medium through which it has been inflicted is who suffered a violent shock and became ill. In the mind’. finding for the plaintiff, Lamont JA said: ‘Any This seems to reflect the notion, perhaps con- reasonable man would know that the natural and sistent with the times, that mental disorders probable consequence of spreading such a report resulted in physical effects, and it is these phys- would be that it would be carried to the plaintiff, ical effects that could attract damages. and would, in all probability, cause her not only However, modern medicine has moved on, mental anguish but physical pain’. and the courts now have a greater understanding The focus was placed on what may be con- of how much a person’s mental health can be sidered the ‘natural and probable consequences’ damaged. In Walker v Northumberland County of the assailant’s actions. This has a direct bear- Council ([1995] 1 All ER 737), in the course of ing on the issue of indirect bullying. If an awarding the plaintiff damages for the psychi- assailant uses rumour or innuendo and spreads it atric consequences of his employer’s negligent to co-employees, and this affects the victim’s failure to provide a safe system of work, mental health, then it seems that the assailant is Coleman J said: ‘Whereas the law on the extent liable under this principle. of [the employer’s duty of care] has developed 3) The victim must sustain a recognisable almost exclusively in cases involving physical psychiatric disorder. It is of more practical con- injury to the employee as distinct from injury to cern that all the cases under the Wilkinson v his mental health, there is no logical reason why Downton line of authority have involved shock- risk of psychiatric damage should be excluded induced psychiatric injury. In Janvier v Sweeney, from the scope of an employer’s duty of care or the plaintiff was told that she was under suspi- from the co-extensive implied term in the con- cion of writing to a German spy and suffered a tract of employment’. severe nervous shock. Some of the activities of

MAY 1999 LAW SOCIETY GAZETTE 25 SEMINAR Mediation and family law

Seminar presented by the Family Law and Civil Legal Aid Committee of the Law Society of Ireland in conjunction with the Mediators’ Institute Ireland.

SPEAKERS: • The relationship between mediators and solicitors: perceived problems and the way forward Rosemary Horgan, solicitor (Chairman) • How does mediation work? Eugene Davy, solicitor Implementation of mediated agreements Mary Lloyd, Mediators’ • Institute Ireland • The reluctant spouse Ed McHale, Mediators’ Institute Ireland • Power balancing Barbara Wood, Mediators’ Institute Ireland DATE: WEDNESDAY 26 MAY, 6PM VENUE: LAW SOCIETY OF IRELAND, BLACKHALL PLACE, DUBLIN 7

Enquiries and/or booking to: Linda Kirwan, Law Society of Ireland, Blackhall Place, Dublin 7 (tel: 01 6724800) ADMISSION FREE. ALL WELCOME

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LAW SOCIETY OF IRELAND The Law Society, Blackhall Place, Dublin 7. Fax: (credit card payments only) 672 4801. EMPLOYMENT debt collection agencies, insurance adjusters and sumed to have intended the harm that arises from the employer himself. landlords in America have attracted liability as a such conduct. It is not unusual for victims of bullying to walk result of the shock tactics they have employed. So an assailant who knows that ‘the natural away from the source of their problems and leave Most colourfully, in Great A&P Tea Company v and probable consequences’ of his actions is the their employment unilaterally. In these circum- Roche ([1930] 160 Md 189, 153 A 22), the risk of psychiatric injury to his victim will have stances, it may be open to them to bring forward defendant wrapped up a gory rat instead of a loaf intended that result, even if he attempts to argue a case for constructive dismissal before the of bread. otherwise. It is also quite likely that a person who Employment Appeals Tribunal. There are a num- While this has been the trend of cases, an recklessly disregards whether his conduct will ber of problems with this, such as the six-month analysis of the ratio of Wilkinson v Downton cause such harm or not will be found liable. time limit on bringing claims and the fact that the does not show that it is a sine qua non of liabil- burden of proof lies on the claimant. ity that a shock-induced psychiatric disorder Vicarious liability Nevertheless, some successful cases for construc- should result. Wright J spoke in terms of a wil- One might ask whether negligence has any tive dismissal involving bullying have arisen. ful act calculated to cause physical harm. application in the context of bullying, and it In Byrne v RHM Foods (Ireland) Limited (UD The fact that the injury was a shock-induced most certainly has. Under the principles of vic- 69/1979), the claimant was the personal secretary psychiatric injury rendered the issue of causa- arious liability, an employer is liable for the of a marketing manager, both employed by the tion less problematic, as the nexus between the torts committed by his employee in the course respondent. When the marketing manager was defendant’s wilful act and the plaintiff’s injuries of his employment. You could argue that the suspended, the claimant was assured of her job. was more clear. employer does not authorise the use of bullying However, work was entirely withdrawn from the It is in this context that the negligence case of tactics by employees, but there is a difference claimant, and she was isolated from other man- Walker v Northumberland County Council is between this and the notion of the scope of a agers. The keys to the filing cabinet she used instructive. There, an employee worked as a person’s employment. It would generally be were taken from her, and when they were social services officer with the defendant for 18 considered that an employee is under a duty to returned she was instructed not to use the filing years. In November 1986, he suffered a nervous act for the furtherance of the better interests of cabinet without the prior permission of a manag- breakdown due to the stress and workload his employer. If an employee adopts ‘firm man- er. Her telephone was cut off. The claimant was attached to his work. He returned to work in agement’ or bullying tactics to achieve those diagnosed as having severe nervous strain as a early 1987, following assurances of support and interests, he is acting within the scope of his result of this situation at work. The EAT found help from his immediate superior. This support employment duties. As work-related bullying that she was constructively dismissed. was very limited, and the plaintiff was also required to clear the backlog of cases which had ‘An individual who involves himself in a built up in his absence. Six months later he suf- fered a second mental breakdown, and was later systematic programme of aggressive behaviour dismissed for permanent ill health. The defen- towards another must be presumed to have dant was found liable on negligence principles for failing to provide the additional assistance intended the harm that arises from such conduct’ offered. In Walker v Northumberland County Council, generally arises in the workplace itself, the con- In Walsh v Love (UD 784/1994), the claimant the plaintiff was in a stressful situation for all his nection between the assailant’s actions and his was an employee in a hair salon who enjoyed a working life, but even limiting this to the period employment is obvious. good working relationship with her employer, the of time when the defendant was found to be neg- So where the employer has failed to address respondent, until she joined a trade union and ligent, the plaintiff endured an extreme situation issues of bullying in the workplace – either sought her full annual leave entitlement. of stress for six months. before they arise by preventative measures or, Thereafter, the respondent refused to speak The attention of Coleman J was on the clear- following complaints, by swift and appropriate directly to her, did not introduce the claimant to ly-diagnosed recognisable mental illness pre- action – he may well be found negligent for fail- new staff, did not hand the claimant’s wages sented before him by the plaintiff, and it was ing to have in place proper systems to avoid the directly to her, did not inform her of customer irrelevant whether the psychiatric difficulty was effects of bullying on employees. This is an appointments, prohibited a staff collection in the shock-induced or not. Given that Walker shows important point for many employees as more claimant’s favour for her wedding, and embar- that the law has developed in tandem with med- often than not the employee aggressor would not rassed her in front of customers. The EAT found ical knowledge and will acknowledge psychi- be a mark for damages. Employers may also that she was constructively dismissed. atric illnesses which arise over a period of time, need to consider whether they are insured against As matters stand, there is no obvious path to I believe that it is also legally irrelevant whether the wilful as opposed to negligent actions of their legal redress for the victims of bullying. Given a plaintiff’s illness derives from a shock or aris- employees giving rise to liability. the prevalence of this insidious behaviour in the es over a period of time. One might then ask why Wilkinson v Downton workplace, it is essential that proper attention is 4) The action must be wilful. The natural is so important if negligence principles will ulti- paid to asserting these victims’ rights. To this defence for a bully is that he did not intend to mately apply. The principles of vicarious liabili- end, statutory reform is required. cause the harm he has inflicted. However, the ty will only apply to render the employer liable The recent case of Walker v Northumberland issue of intention is not open to the word of the when the employee has committed a tortious County Council gives renewed pause for thought, assailant but is to be inferred by all surrounding action. Wilkinson v Downton sets out the basis and it may well be that the neglected line of circumstances. Just as a person who points a gun upon which a tort has been committed in these authority stemming from Wilkinson v Downton at another and pulls the trigger clearly intends to instances, and is therefore the foundation upon can be revitalised to give remedies in tort for shoot him, regardless of his protestations to the which one might hope to make the employer these victims. Progress is now in sight. G contrary, likewise, an individual who involves liable for his failure to have proper work systems himself in a systematic programme of aggres- in place. Also, Wilkinson v Downton provides a Pádraig Walsh BCL LLM (Comm) is an Irish sive behaviour towards another must be pre- direct cause of action in cases where the bully is solicitor now based in Hong Kong.

MAY 1999 LAW SOCIETY GAZETTE 27 Can you paten

Everyone is looking for a way to do business more quickly, more easily and more cheaply. But just suppose you come up with such a method: can you patent it? Denis Kelleher looks at a recent US case that has thrown the issue into confusion and tries to assess its implications for patent law

e live in an age of extraordinary Federal Court of Appeals in State Street v innovation. New technologies such Signature Financial Group.1 The respondents, W as the World Wide Web are not Signature, had applied for a patent for a system only remarkable inventions in their own right that allowed an administrator to monitor and but their existence drives the creation of new record the financial information flow and make technologies which promise to alter the lives of all calculations necessary for maintaining a millions. The stakes in such an environment are ‘partner fund financial services configuration’. very high: those who become dominant in an This allows several mutual funds or ‘spokes’ to aspect of a technology (such as Microsoft or pool their investment funds into a single portfo- Intel) can expect to reap extraordinary rewards; lio or ‘hub’ which would allow the administra- those who do not, or who fail to adapt as the tion costs to be combined and also ensure the technology changes (such as WordPerfect, one- tax advantages of a partnership. time ruler of the word-processor software mar- ket), will fall by the wayside. This has led to the Getting a spoke in situation where having the right legal advice can Although the concept that underlies such a sys- be more important than doing the right research. tem is quite simple, the transactions involved The recent history of the IT industry is littered are extraordinarily complex. The system allows with examples of innovators who missed out on a daily allocation of assets between two or more the benefits of their inventions. One example is spokes that are invested in the same hub, deter- the spreadsheet program, a genuine innovation mining the percentage share which each spoke which revolutionised the IT industry, business maintains in the hub while taking account of and accountancy. The inventors marketed this as daily changes in the value of the hub’s invest- a computer program, Visicalc, which was suc- ments and the concomitant value of each cessful for a while. At the time, it was not clear spoke’s assets. To determine this value, the sys- that software could be the subject of a patent so tem must calculate the allocation of the hub’s no application was made and these inventors income, expenses, gains and losses on a daily missed out on the patent royalties which they basis. This must be done quickly and accurate- might have received from the sales of spread- ly in order to calculate the price of shares in the sheet programs. ‘spokes’ which are marketed to the public. Nowadays, the opposite approach would An application for a patent was made, but the seem to be in vogue: patents are applied for US Federal District Court held that the patent every sort of product whether innovative or not. could not be granted because: ‘If Signature’s However, legal opinion in the USA has been invention were patentable, any financial institu- thrown into chaos by a recent decision of the US tion desirous of implementing a multi-tiered

28 LAW SOCIETY GAZETTE MAY 1999 INTELLECTUAL PROPERTY nt a business method? funding complex modelled on a hub and spoke configuration would be required to seek Signature’s permission before embarking on such a project. This is so because the ... patent is claimed sufficiently broadly to foreclose virtual- ly any computer-implemented accounting method necessary to manage this type of finan- cial structure’.2 This decision was appealed, and the Court of Appeal rejected the entire concept that business methods should receive special treatment under patent law. It noted that the US Patent and trade- mark 1996 examination guidelines for computer- related inventions now read: ‘Office personnel have had difficulty in properly treating claims directed to methods of doing business. Claims should not be categorised as methods of doing business. Instead, such claims should be treated like any other process claims’. The Court of Appeal agreed with this view and suggested that the decision on whether the claims are directed to (unpatentable) subject matter should not turn on whether the claimed subject matter does ‘business’ instead of some- thing else. An application was made to appeal this decision to the US Supreme Court, but this was refused.3 This decision has raised a considerable amount of controversy in the USA, with some commentators predicting ‘a firestorm of litiga- tion (which will) engulf corporate America, from Madison Avenue to Main Street. Even a common legal stratagem like the “poison pill” could now be patented by its attorney inventor’. It has also been suggested that ‘legislation to revive the business methods exception is needed to prevent large-scale disruption of US com- merce, as sharp operators move to patent busi- ness methods and assert patents against the unsuspecting’. Some have even ventured that financial methods such as junk bonds could have been patented, as could the ‘knock-knock’ joke, the music video or the shock-jock radio format’.4 These concerns may be compared to worries about Internet domain names. As the early

MAY 1999 LAW SOCIETY GAZETTE 29 INTELLECTUAL PROPERTY

‘cybersquatting’ cases emerged, it was suggest- particular area. The sharing of information ed that new legislation would be required to between such researchers is essential to this manage this new technology. However, it has process. The modern legal obsession with try- become clear that existing intellectual property ing to protect and exploit any information as laws are adequate to protect trademarks on-line. intellectual property has already given rise to Similarly, the contrasting argument has been concerns with regard to medical research.8 made that the State Street case does not go this Here is just one example: ‘My colleagues far. For one thing, the US Court of Appeal did and I uncovered what appeared to be a promis- not actually state that the ‘hub and spoke’ sys- ing new component of a cancer vaccine. The tem was patentable; it held that a patent would company that had developed (it) had just com- not be refused merely because it related to a pleted studies to determine a safe dose in business method and sent the case back to the humans (but) refused to reveal the dosage District Court so that it could be determined information, and would not provide data on the whether a patent could be given, having regard toxic effects in patients with cancer in their to the normal criteria for a patent, such as novel- trial unless we agreed to keep the information ty. This view holds that ‘the actual consequences confidential so that a competing company of State Street will, over time, settle somewhere would not gain access to it’.9 on the middle ground. State Street does not in The development of modern medicine any way direct that patentability standards be requires an extraordinary level of investment, lowered, only that the subject matter of such balancing the needs of investors to generate claims not be initially rejected out of hand as returns with the desire of the medical profes- non-patentable. In fact (since then) applicants sions to prevent human suffering and premature have continued to complain that the (Patents death from disease, and will inevitably lead to Office) has resisted issuing such patents’.5 conflict. Although it may not come to pass that ‘adver- The management of such conflicts in all tising agencies and marketing consultants will History is littered with inventors who missed areas of research will pose a considerable chal- now need to obtain patent advice about every out on the benefits of their inventions lenge for legislatures, lawyers and judges into new ad campaign and promotional gimmick’,6 the next millennium. G the State Street decision does contain an impor- However, one sector in which the decision is tant lesson. Technology, and information tech- already having an effect is the Internet. Denis Kelleher is a practising barrister and nology in particular, is developing at a frenetic Priceline.com runs a ‘reverse auction system’ author of Information technology law in pace, in contrast to the slow pace of patent appli- or ‘bilateral buyer-driven commerce’. This Ireland (Butterworths, 1997) and Information cations and appeals. This means that a substan- allows potential travellers to specify a destina- technology law in the European Union which tial time lag will exist between the invention of a tion, date of travel and price they are willing to will be published by Sweet & Maxwell new technology and a final decision on whether pay, together with credit card details. This bid (London) later this year. that technology can be the subject of a patent. will be seen by various airlines and, if one of them wishes to take it, Priceline.com will Footnotes Patently cautious inform the traveller by e-mail. Priceline.com 1 149 F3d 1368; 1998 US App LEXIS 16869; In the State Street case, a patent was filed on 11 has received a patent for this process, but it 47 USPQ 2D (BNA) 1596. March 1991; it issued on 9 March 1993; judg- remains to be seen how successful it will be at 2 927 F Supp 502 at 516. ment was given by the US District Court of enforcing it on-line. 3 1999 US LEXIS 493; 142 L. Ed. 2d 704; 67 Appeal on 23 July 1998; and an application for Certainly any lawyer who is approached USLW 3436. an order of certiorari of that decision was about the possibility of granting a patent for any 4 Kundstadt, Opening Pandora’s Box, The refused by the US Supreme Court on 11 January product should be very careful. The view may Recorder, January 1999, p20. 1999. It must be stressed that this is not a final be taken that ‘if I don’t apply for a patent now, 5 Hahn, Much ado about method patents, The decision on this issue: the case must return to the someone else will’ or to take the advice of Recorder, January 1999, p21. US District Court for a judgment on patentabili- American lawyers: ‘Investigate filing patent 6 Kundstadt, op cit, p20. ty, and further appeals from whatever judgment applications covering any new and important 7 Ellis & Chatterjee Patent wars come to Wall that court comes to may be anticipated. financial, banking and insurance software pro- Street, The Recorder, November 1998, p4. Until a final answer is given on any such grams. This strategy gives a company the 8 Concerns about the patenting of medical question, a cautious approach should be taken patent assets to counter the royalty or injunction products led to provisions such as article 52 when deciding whether to apply for a patent for demands of aggressive competitors. In appro- of the European patents convention, which a particular item of technology. If it should ulti- priate situations, it allows for the offensive use provides that: ‘Methods for treatment of the mately be decided that a particular technology of these patent assets against competitors. human or animal body by surgery or therapy is patentable, then any inventor of any item of Patents may also provide access to the patent and diagnostic methods practised on the such technology who did not originally apply assets of competitors through the mechanism of human or animal body shall not be regarded for a patent will lose out. Furthermore, it is cross-licensing’.7 as inventions which are susceptible of indus- unclear what effect this decision will have in The danger with this is that a welter of patent trial application’ and hence cannot be Europe: as noted already, the American courts applications, litigation and disputes may drown patented. A similar provision is to be found in have yet to actually uphold the patentability of the process of innovation which the law of section 9(4) of the Irish Patents Act, 1992. the ‘hub and spoke’ system and, if they did, patents is supposed to support. Innovation and 9 Rosenberg, Secrecy in medical research, New there is no guarantee that the European courts invention do not occur in isolation; large num- England Journal of Medicine, 8 February would follow their decision. bers of people may be involved in researching a 1996, Vol 334, No 6, p392-394.

30 LAW SOCIETY GAZETTE MAY 1999 EUROPEAN LAW Parallel lines

Various rulings from the European Court of Justice have limited the rights of intellectual property owners and thrown the European market open to parallel importers. Maureen Daly describes how businesses have fought to retain control over their goods

ection 16 of the Trade Marks Act, 1996 known as ‘exhaustion of rights’, balances the do not constitute arbitrary discrimination or a implements article 7(1) of the Trade proprietor’s intellectual rights against the free disguised restriction on trade between S mark harmonisation directive movement of goods throughout the European Member States, and as long as they are justi- (Directive 89/104). It declares that a regis- Union. fied on specified grounds, including ‘the pro- tered proprietor or his licensee or subsidiary Once a product is on sale in one European tection of industrial and commercial proper- cannot pursue infringement of intellectual country, then it must be accepted throughout ty rights’. This is broadly interpreted to property rights if a product is put on the mar- the EU, notwithstanding the impact of nation- include copyright. The extent to which the ket in the European Economic Area (EEA), al laws. Its free circulation cannot be pre- doctrine of exhaustion of rights over-rides which includes the EU, Norway, vented, but article 36 of the Treaty of Rome national intellectual property rights is the Liechtenstein and Iceland. This principle, does allows some restrictions as long as they focus of this article.

MAY 1999 LAW SOCIETY GAZETTE 31 In Centrafarm BV and De Peijper v Sterling relaxed the laws in respect of exhaustion by Drug Inc ([1974] ECR 1147), the European stressing the importance of the need for the Court of Justice (ECJ) stated that the protection proprietor to consent to the first marketing of of industrial rights justifies an obstacle to the his product. This principle has always been free movement of goods, but no obstacle would accepted in patent law. This relaxation can be be allowed where the patentee sells or permits seen in CNL Sucal NV v Hag AG (Hag II) his product to be sold in the Member State from ([1990] ECR 1-3711). The facts are a reversal which it is imported. Merck & Co Inc v Stephar of those in Hag I, namely, the Belgian comp- BV ([1981] ECR 2063) confirmed this. any sought to sell its goods in Germany. The Merck was selling its product in Italy. The ECJ found in favour of the German company court would not allow the company to use a on the basis that the first marketing was done Dutch patent to stop its product being imported by an entity independent of it and the import- from there into the Netherlands. Merck had to ing was without consent. take the consequence of selling its product in The possibility of confusion arising was Italy. In 1996, Merck v Primecrown (C-267/95 also taken into account by the ECJ when reach- and C-268/95), confirmed the Stephar decision. ing its decision. It should be noted that consent in an assignment deed has been held not to be Trade mark issues ‘consent’ for the purposes of exhaustion of Serena Srl v EDA Srl ([1971] ECR 69) illus- rights. In IHT Internazionale Heiztechnick trates the ECJ’s hostility towards trade marks. GmbH v Ideal Standard GmbH ([1994] ECR Serena owned the mark Prep good morning in 1-2789), it was held that the mark’s proprietor Italy but could not control the specification of in the importing company must be able to con- the cream sold under an identical mark in trol the quality of the goods on which the trade Germany. When that cream was imported from mark is affixed in the exporting country, and Germany and sold at a lower price, Serena sued must be able to determine the products to for infringement. The ECJ stated that exercising which it is applied. That power is lost if the a trade mark right would partition markets, mark is assigned and there is no economic con- impairing the free movement of goods. nection with the assignee. Industrial and commercial property rights As with every doctrine, there is an ‘excep- are usually more important and merit a higher tion to the rule’. This can be found in section repackaged the goods. degree of protection than the interest protect- 16(2) of the Trade Marks Act, 1996 and article Notwithstanding that, in Pfizer Inc v Eurim- ed by an ordinary trade mark. In Centrafarm 7(2) of the Harmonisation directive, which Pharm GmbH ([1981] ECR 2913), infringe- BV v Winthrop BV ([1974] ECR 1183), the states that exhaustion of rights does not apply ment was not justified under article 36. The ECJ took a narrow interpretation. It held that in circumstances where the product has been parallel importer in this case merely replaced the function of a trade mark was to grant the altered and/or impaired after it is put into cir- the outer wrapping with wrapping that dis- proprietor exclusive use of the mark in respect culation. played the manufacturer’s name and also indi- of the goods in question, to entitle him to put In Hoffman La Roche v Centrafarm ([1978] cated that the goods were repackaged by the the goods into circulation for the first time, ECR 1139), the defendant purchased Valium in importer. The inner package was left intact and to protect him against competitors who the UK and repackaged it in different quanti- with the trade mark clearly visible. may wish to take advantage of the reputation ties to sell it in Germany. Centrafarm then Accordingly, the mark’s guarantee of origin built up under the mark. In this case, it was held that exercising trade mark rights to stop a product (which was already sold in the UK by ‘Although parallel importers may seem to an associated company) being sold in the Netherlands was contrary to the exhaustion of have won the battle to date, the vital question is: rights principle. who will win the war?’ From this it can be seen that the ECJ viewed a trade mark’s function as guaranteeing to the consumer that products are of a common origin. added the trade mark, together with its own was not affected. This criterion was applied in the case of Van name and address. In these circumstances, the However, in Centrafarm v American Home Zuylen Freres v Hag AG (Hag I) ([1974] ECR ECJ held that importing and selling these prod- Products ([1978] ECR 1823), proprietors using 731). In Germany before the Second World ucts could be opposed on the basis that a trade different marks in different countries to parti- War, the Hag trade mark was owned by a mark’s essential function is to guarantee the tion the market were warned that this may be German company, while a subsidiary owned it product’s original identity to buyers or final viewed as a restriction of trade under article in Belgium. After the war, the Belgian registra- users, so as to avoid confusion. It implies that 36. In this case, American Home Products sold tion was assigned to Van Zuylen Freres. The no-one has tampered with the goods without tranquillisers under the mark Serenid in the German company began using the mark in the proprietor’s consent. The importer could UK and Seresta in the Netherlands. They were Belgium and Van Zuylen Freres claimed avoid infringement if the repackaging was not pharmaceutically identical but chemically dif- infringement. As the two registrations in ques- of a nature to affect the original state of the ferent and had a different taste. The court treat- tion had a common origin, the ECJ held that the product. The packager would be able to rely on ed the products as being identical. The parallel German products were to be considered a paral- the provision in article 36 if it had given importer imported Serenid into the lel import. advance warning to the proprietor and clearly Netherlands and affixed the mark Seresta. This Since the decision in Hag I, the ECJ has indicated on the final package that it had was an infringement.

32 LAW SOCIETY GAZETTE MAY 1999 EUROPEAN LAW

shortcomings in their sales networks. Even if mate interests and must try to ensure that it is a barrier to trade, the ECJ has held that advertising does not affect the mark’s value article 36 must be interpreted as meaning that by detracting from the prestigious and luxu- owners may rely on trade mark rights to stop a rious image of the goods. third party from removing and then re-affixing or replacing labels bearing the mark, which Copyright issues the proprietor has affixed to products he has The exhaustion of rights principle has been put on the Community market, unless: applied by the ECJ in relation to copyright. In ● It is established that this would contribute Deutsche Grammophon v Metro SB ([1971] to artificially partitioning the markets ECR 487), a German recording company could between Member States not prevent a supermarket from selling sound ● It is shown that the re-labelling cannot recordings bought from its French distributor. affect the product’s original condition In EMI Electrola v Patricia ([1989] 2 CMLR ● The presentation of the re-labelled product 413), the ECJ held that if a recording in which is not such as to be liable to damage the rep- copyright subsists in one state is sold to a sec- utation of the trade mark or the proprietor ond where this has expired, and is then mar- ● The person who labels the product informs keted and re-exported to the first state, the the owner of the re-labelling before the owner can prevent the re-sale provided this product goes on sale. was done in both states without consent. In Foreningen af danske Viteogramdistri- The ECJ has accepted that owners can use borer (FDV) v Laserdisken (Case 61/97), the identification numbers for legitimate purpos- holder of an exclusive rental right was able to es, such as compliance with a legal obligation prohibit copies being offered for rental in one or to facilitate the recall of faulty products, or state which had been authorised in another. to combat counterfeiting (Frits Loendersloot v Articles 30 and 36 of the Treaty of Rome were George Ballantine & Son Ltd and others considered in addition to Directive No ([1998] FSR 544]). But if used as a way to 92/100/EEC (Rental right and lending right block parallel trade, it would be contrary to and on certain rights relating to copyright in competition law. If national law requires extra the fields of intellectual property). The ECJ clarified this further in Bristol information on a label, it is enough to display Exhaustion of rights was deemed not to Myers Squibb v Paranova ([1997] FSR 102), this on a sticker. apply as the right to authorise and prohibit Eurim Pharm v Beiersdorf Case (C-71, 72, In Parfums Christian Dior SA and rental would be meaningless if it was held to 73/94) and MPA Pharma v Rhone Poulenc Parfums Christian Dior BV v Evora BV (Case be exhausted on the first offer, while Directive (Case C-232/94), laying down criteria C-337/95), the plaintiffs objected when a No 92/100/EEC expressly precludes the possi- designed to balance the fundamental principle pharmacy chain used the Dior marks on bility that rental rights, unlike distribution of the free movement of goods against the need Christmas leaflets advertising parallel rights, can be exhausted by any distribution of to protect the essential function of a trade imports. Their complaint was that the the specific object. mark. The proprietor cannot oppose the mar- importer’s advertising image was not in Articles 30, 36, 85 and 86, of the Treaty of keting of a repackaged product if the following keeping with the image of Dior products. The Rome are used by the ECJ to ensure that hold- criteria are satisfied: issue was therefore the advertising function ers of intellectual property rights do not unlaw- ● It is established that such opposition would of trade marks. fully restrict parallel imports. Unfortunately contribute to artificially partitioning mar- The ECJ ruled as follows: for intellectual property-holders, once their kets between Member States ● Under articles 5 and 7 of the Harmonisation product is on the market, they cannot control ● It is shown to the national court’s satisfac- directive, a re-seller may not advertise a free circulation throughout the EEA if they tion that repackaging would not affect the mark to bring ‘to the public’s attention the have consented either directly or indirectly product’s original condition further commercialisation of the goods’, through a licensee or subsidiary. Therefore, in ● The presentation of the repackaged product once the owner places them on the market order to retain ultimate control over the prod- is not liable to damage the reputation of the or consents to this marketing uct and the manner in which it is presented to trade mark and the proprietor ● Exhaustion of rights will not apply where consumers, the onus is now on them to create ● The importer notifies the proprietor before the owner has legitimate reasons to oppose a product whose original state will be altered putting the repackaged product on sale the goods’ further commercialisation and when it is re-packaged by a parallel importer. (though the parallel importer is not required will only arise where use ‘seriously’ dam- This will enable proprietors to rely on section to wait for approval) ages the mark’s reputation. Articles 30 and 16(2) of the Trade Marks Act, 1996 and article ● The new packaging clearly states who 36 impose a similar limitation on the free 7(2) of the Harmonisation directive. repackaged the product and the manufactur- movement of goods and so this would apply As is evident from caselaw, this problem is er’s name to the proprietor of other intellectual prop- immensely important for the pharmaceutical ● The importers supply the proprietor with a erty rights, such as copyright industry. Although parallel importers may specimen of the repackaged product when ● A re-seller is entitled to market the goods in seem to have won the battle to date, the vital requested to do so. ‘ways customary in his sector of trade’ but question is: who will win the war? G the advertising must not seriously damage Importers cannot re-label products to remove the proprietor’s reputation. In the case of Maureen Daly, solicitor and Community trade identification marks allegedly used by the luxury goods, the re-seller must not act mark attorney, is an associate with FR Kelly & owner to monitor parallel imports and to detect unfairly in relation to the owner’s legiti- Co, trade mark and patent attorneys.

MAY 1999 LAW SOCIETY GAZETTE 33 Perennial conce The Registrar of Companies’ clampdown on those who fail to file annual returns leaves thousands of companies facing the prospect of being struck off. And growing judicial concern over persistent flouting of these obligations means that it could be very difficult to get such companies restored to the register. Niall O’Hanlon reports

‘Some of the information designed to be elicited long standing. In Re Moses and Cohen Ltd ceedings, practitioners would do well to remem- by this annual chore is irrelevant; some is mis- ([1957] 3 All ER 232), Roxburgh J cited the ber that the High Court is no mere rubber stamp leading; and some is duplicated by other enact- observations of Buckley J on this topic, which in relation to these applications. Section 311(8) ments’ were made more than 50 years earlier in Re and 12(6) respectively provide that the court may (Patrick Ussher, Company law in Ireland). Brown Bayley’s Steel Works Ltd ([1905] TLR make an order restoring the company if it is sat- 374). Buckley had said that he hoped that those isfied that the company was, at the time it was hough many people may hold simi- who controlled the amendment of company law struck off, carrying on business or that it is oth- lar views to this, the obligation to would consider whether the law on this subject erwise just that the company should be restored. make an annual return imposed on did not require amendment. Roxburgh J Given the discretionary nature of the court’s companies by sections 125 and 126 expressed the view that the provisions of the powers, the disquiet expressed from the bench of the Companies Act, 1963 remains Companies Acts in relation to the making of referred to above takes on an added significance. Tin force. Indeed, by enacting section 12 of the returns could be disregarded with impunity. He Accordingly, care should be taken in preparing Companies (Amendment) Act, 1982, the finished his judgment by stating that perhaps the papers for such applications and perfunctory Oireachtas gave the Registrar of Companies spe- after 50 years it might not seem premature to standard form affidavits are, in light of recent cific power to strike off companies for failing to draw attention once again to the frequency of judicial dicta, increasingly unlikely to pass make returns. This was in addition to the regis- these applications and to the underlying cause. muster with the court. trar’s power to strike off defunct companies Errant directors may be comforted by Romer under section 311 of the Companies Act, 1963. J’s decision in Re City Equitable Fire Insurance The procedure Further, the 1982 legislation was amended by Company Limited ([1925] Ch 407). This estab- Order 75, rule 4, of the Rules of the superior section 245 of the Companies Act, 1990, which lished the proposition that, in the performance of courts 1986 provides that applications under sec- cut the number of consecutive years which must his duties, a director need not exhibit a greater tion 311(8) or section 12(6) should be made by elapse before the registrar is permitted to exercise degree of skill than may reasonably be expected petition. Under rule 3(1), every petition, notice his section 12 powers from three to two. from a person of his knowledge and experience. of motion and affidavit shall be entitled The High The Companies Registration Office’s recent But this must be balanced against the dicta of Court and And in the matter of the Companies investment in new technology means that com- Carroll J in Re Hunting Lodge Limited ([1985] Acts, 1963 to 1990. Rule 3(3) states that the peti- panies who fail to make annual returns are now ILRM 75) that a person who becomes a director tion shall be in the form set out in Form no 1 in more likely than ever to be struck off. Allied to takes on duties and responsibilities. Further, both appendix N, while rule 6(1) provides that, where these changes is a recently-expressed judicial dis- sections 125 and 126 provide that the company, a petition has been presented pursuant to rule 4, quiet relating to the increasing number of appli- and every officer of the company who is in an application shall in every case be made by cations to the courts arising out of the failure of default, shall be liable to fines. motion to the court for directions as to the pro- company directors to ensure that their companies ceedings to be taken. make annual returns. The relief available The petition should be made on notice to the In the matter of TJS Fastfood Restaurants Section 311(8) and section 12(6) of the 1963 and Registrar of Companies and the Chief State (Ireland) Ltd (15 February 1999), referred to in 1982 legislation respectively provide that, where Solicitor for and on behalf of the Minister for the Irish Times on 16 February, dealt with a a company has been struck off, either it or a Finance and the Minister for Enterprise, Trade recent application for restoration. The case con- member or one of its creditors may apply to the and Employment. cerned a company which failed to file its annual High Court for an order restoring the name of the Order 5, rule 15, states that, except where oth- returns for the years 1992 to 1997. Allowing the company to the register within 20 years of the erwise provided in the rules, every petition to the restoration, Mr Justice Peter Kelly commented registrar publishing the notice that it was struck court shall be presented by leaving it with the that it was ‘fantastic’ that the company could still off in Iris Oifigiúil. While the two sub-sections proper officer at the central office. Subject to have applied for, and secured, its intoxicating are couched in identical terms, it seems to me this, the provisions of order 15 shall apply to a liquor licence every year. He went on to highlight that where a petition is brought on foot of a com- petition in the same manner as they apply to an the paucity of information advanced by compa- pany being struck off for failure to make annual originating summons and references in the order nies to explain their failure to meet their statut- returns, the proper course is to bring such an to originating summons and the plaintiff shall be ory obligations and stressed that being a compa- application under section 12(6) of the 1982 Act. construed as including references to petition and ny director involved more than simply having a Although the equivalent procedure in the UK petitioner respectively. Where the application is title to put on a business card. was described in Re Portrafram ([1986] BCLC brought by a person other than the company, Judicial disquiet in relation to this area is of 533) as giving rise to quasi-administrative pro- order 75, rule 20, provides that a copy of the peti-

34 LAW SOCIETY GAZETTE MAY 1999 COMPANY LAW erns for business

pany and all other persons as near as possible to the same position as if the company’s name had not been struck off.

Consequences of striking off Practitioners will be aware that directors will need advice not only on the issue of restoring their company to the register but also on the con- sequences of dissolution. For example, section 28 of the State Property Act, 1945 vests all real- ty and personalty of the company in the State on dissolution, while the liability (if any) of every director, officer and member of the company continues and may be enforced as if the comp- any had not been dissolved. But the failure to make annual returns is fre- quently indicative of a more far-reaching failure to maintain proper books of account on a contin- uous and consistent basis (as is required under section 202 of the Companies Act, 1990) or to prepare annual accounts under section 148 of the Companies Act, 1963. In such circumstances, it is also likely that there will have been a breach of the corporation tax, and possibly the capital gains tax, provisions of the Taxes Consolidation Act, 1997, as amended, the VAT Act, 1972, as amend- ed, and the legislation in relation to PAYE/PRSI. Quite apart from the possibility of the imposition of fines on the directors for specific instances of non-compliance with company and tax legisla- tion shall be served on the company within three that all outstanding returns have been filed and tion, there is ultimately the possibility of a find- days after it has been filed in the central office. appear to be in order for registration. There ing of reckless trading against the directors if the In addition to the notice of motion and peti- should also be a letter from the Chief State company becomes insolvent. tion, it is the practice to swear a verifying affi- Solicitor consenting, on behalf of the registrar, the Although the chores involved in preparing davit. When briefing counsel in relation to such Minister for Finance and the Minister for annual accounts may sometimes appear to be applications, an instructing solicitor should Enterprise, Trade and Employment, to the com- irrelevant, misleading and a duplication of ensure that sufficient information is provided by pany’s restoration to the register. Technically, effort, non-compliance may often be indica- the proposed deponent to allow a draft affidavit where an application is being made on foot of a tive of a general systematic failure on the part to be drawn up on his behalf. failure to make annual returns, the letters from the of the directors to comply with their statutory It will be necessary to determine, among other registrar should refer to section 12(6) of the 1982 obligations. It is also open to debate whether it things, the date of the company’s incorporation; Act rather than section 311(8) of the 1963 Act. is fair that a company should be restored to the the period for which the company failed to make The application will be listed on a Monday in register in the absence of assurances to the annual returns; the date on which the company’s the Chancery 1 or Chancery 2 lists, under the court, even if such failures have not arisen or name was struck off the Register of Companies; heading of ‘motions’. The hearing of the motion are being dealt with. G the reason for the failure to make returns; and the will be treated as the hearing of the petition, and particular reason for the company wishing to the court will need to be informed, among other Niall O’Hanlon BA (Hons) (Acct & Fin), LLM have its name re-admitted to the register. It things, of the reason why annual returns have not (Comm Law), ACA, AITI is a practising barris- should also be established if the company had been made and whether the company has contin- ter specialising in general commercial and tax- traded since incorporation and if it was trading ued trading since being struck off. ation law and is a consultant to the Law when it was struck off, and also whether the State Once an office copy of the order is delivered to Society’s Law School. The author is indebted to has intermeddled with the assets of the company. the registrar for registration, the company shall be Mr Justice Peter Kelly who very kindly agreed to The verifying affidavit should include the deemed to have remained in existence as if its review an earlier draft of this article. Needless memorandum and articles; letters from the regis- name had not been struck off. The High Court to say, any deficiencies in the exposition of this trar stating, first, that he has no objection to the may, by order, give such directions and make topic are due solely to the shortcomings of the company’s restoration to the register and, second, such provisions as seem just for placing the com- author.

MAY 1999 LAW SOCIETY GAZETTE 35 CRIMINAL LAW COMMITTEE

MEETING RE: Offences Against the State (Amendment) Act, 1998

Blackhall Place, Friday 28 May 1999, 7pm Chairman: Michael Lanigan, solicitor Opening remarks: Michael Farrell, solicitor

When you attend on a client in custody: titioners arising from the implementation of • Might you become a witness in your the above Act. The meeting will focus on the client’s case? possible implications for solicitors when • What other repercussions might arise for advising clients in relation to certain provi- you, as a solicitor, on foot of your advice sions of the Act. It is most important that to your client? criminal law practitioners examine and • What does the term ‘access to legal understand the impact which this legislation advice’ mean in the context of the Act? may have on them in the discharge of their • What other issues might arise during the professional duties. The meeting will take the period of detention? form of a discussion group. • What matters should be raised at an extension of detention hearing? Admission is free. Registration and coffee: 6.30pm he Criminal Law Committee invites Members wishing to attend should return the Tsolicitors to attend a meeting to discuss registration form below or telephone Colette the practical difficulties encountered by prac- Carey, Law Society of Ireland, on 01 6724800.

REGISTRATION FORM Meeting re: Offences Against the State (Amendment) Act, 1998

Name:

Name of firm:

Address:

Tel no: Please reserve place(s)

Return to: Colette Carey, Solicitor, Criminal Law Committee, Law Society of Ireland, Blackhall Place, Dublin 7 (DX 79). BRIEFINGBRIEFING

LEGISLATION UPDATE: 16 MARCH – 19 APRIL ACTS PASSED Services (Amendment) Act, Commencement date: 1/4/1999 the tax year within which an Bretton Woods Agreements 1999 employer must give to every (Amendment) Act, 1999 Number: 5/1999 Companies Act, 1963 (Section employee from whom tax has been Number: 4/1999 Contents note: Amends and 377(1)) Order 1999 deducted a certificate of his or her Contents note: Provides for the extends the legislation governing Number: SI 64/1999 emoluments, tax-free allowances adoption by Ireland of the Telecom Éireann – the Postal and Contents note: Applies part XI of and net tax deductions, and send Proposed fourth amendment of Telecommunications Services Act, the Companies Act, 1990 (acquisition returns to the Collector-General the Articles of agreement of the 1983 and the Telecommunications of own shares and shares in holding showing emoluments paid to each International Monetary Fund (IMF) (Miscellaneous Provisions) Act, 1996 company); the European Commun- employee and total net tax deduct- which relates to a one-time alloca- – to facilitate an initial public offer- ities (Public Limited Companies ed. Also replaces the obligation on tion of special drawing rights ing of shares in Telecom Éireann Subsidiaries) Regulations 1997 (SI the Collector-General to issue indi- (SDRs) – the reserve currency of the and to make legislative provision 67/1997); and related provisions to vidual receipts to an employer in IMF – to members of the fund. for the company compatible with its unregistered companies respect of each individual remit- Provides for the making of pay- subsequent status as a publicly- Commencement date: 5/3/1999 tance made by the employer (under ments authorised by the quoted company the 1960 regulations) with an oblig- Government under the debt relief Date enacted: 7/4/1999 Employment Regulation Order ation to issue a notification of package announced by the minis- Commencement date: Com- (Law Clerks Joint Labour receipt which will be done by the ters for finance and foreign affairs mencement order/s to be made Committee) 1999 issue of either a receipt in respect of on 16 September 1998. Guarantees Number: SI 67/1999 each remittance or a periodic state- the Central Bank against any losses Social Welfare Act, 1999 Contents note: Fixes statutory ment of payments which will reflect it may incur under the Bank for Number: 3/1999 minimum rates of pay and regulates all payments made by the employer International Settlements’ Facility Contents note: Provides for statutory conditions of employment in a particular period in favour of Banco Central do increases in the rates of social insur- for certain workers employed in Commencement date: 12/3/1999 Brazil. Amends the Bretton Woods ance and social assistance pay- solicitors’ offices Agreements Acts, 1957 to 1977 ments, improvements in the family Commencement date: 1/4/1999 Irish Land Commission Date enacted: 7/4/1999 income supplement and carers’ (Dissolution) Act, 1992 Commencement date: Various allowance schemes; the introduc- Finance Act, 1998 (Section 62) (Commencement) Order 1999 (see Act) tion of a new farm assist scheme (Commencement) Order 1999 Number: SI 75/1999 for low income farmers and pro Number: SI 65/1999 Contents note: Appoints British-Irish Agreement Act, rata contributory pensions for cer- Contents note: Appoints 31/3/1999 as the commencement 1999 tain self-employed persons as 18/3/1999 as the commencement date for the Act Number: 1/1999 announced in the Budget. Also pro- date for s62 of the Act. Section 62 Contents note: Makes provision in vides for the changes in PRSI inserts a new section 468B into the Local Government Act, 1994 relation to the North/South announced in the Budget including Taxes Consolidation Act, 1997 which (Bye-Laws) Regulations 1999 Ministerial Council, the implemen- an increase in the annual earnings provides for tax relief for corporate Number: SI 78/1999 tation bodies and the British-Irish ceilings for social insurance (PRSI) investment in certain renewable Contents note: Apply certain pro- Council, established under and in contributions, an increase in the energy projects. The relief will be visions of part VII (bye-laws) of the furtherance of the British-Irish health contribution and the aboli- available for a period of three years Local Government Act, 1994 to s21 agreement done at Belfast on tion of the employment and train- from the commencement date, of the Local Government (Water 10/4/1998; makes provision in rela- ing levy, and provides for related 18/3/1999 Pollution) (Amendment) Act, 1990, tion to the International agreement matters. Amends and extends the in order to expand and strengthen establishing the implementation Social Welfare Acts, section 7A of Health Contributions the powers of local authorities in bodies done at Dublin on 8/3/1999, the Health Contributions Act, 1979, (Amendment) Regulations 1999 relation to the making of bye-laws and provides for related matters the Youth Employment Agency Act, Number: SI 81/1999 under the 1990 Act in relation to Date enacted: 22/3/1999 1981, and the Pensions Act, 1990 Contents note: Amend the Health agricultural activities Commencement date: Com- Date enacted: 1/4/1999 Contribution Regulations 1979 (SI Commencement date: 6/4/1999 mencement order/s to be made Commencement date: Various 107/1979) to provide for an exten- (see Act) sion of the time limits for an employ- Prompt Payments of Accounts Finance Act, 1999 er to furnish all necessary documen- Act, 1997 (Rate of Interest Number: 2/1999 SELECTED STATUTORY tation related to health contribu- Penalty) (Amendment) Order Contents note: Charges and INSTRUMENTS tions to both the Collector-General 1999 imposes certain duties of customs Companies Act, 1963 (Ninth and each employee to 46 days Number: SI 62/1999 and inland revenue (including Schedule) Regulations 1999 Commencement date: 31/3/1999 Contents note: Amends the rate set excise); amends the law relating to Number: SI 63/1999 out in the previous order (SI 502/97), customs and inland revenue (includ- Contents note: Amend the ninth Income Tax (Employment) which was effective from 2/1/19998 ing excise) and makes further provi- schedule to the Companies Act, Regulations 1999 to 5/4/1999, to 0.0274% a day, which sions in connection with finance 1963 to facilitate the application of Number: SI 66/1999 is the equivalent of 10% a year Date enacted: 25/3/1999 part XI of the Companies Act, 1990 Contents note: Amend the Income Commencement date: 6/4/1999 Commencement date: Various (acquisition of own shares and Tax (Employment) Regulations 1960 (see Act) shares in holding company) to (SI 28/1960) by extending to 46 days Prepared by the Law Society Postal and Telecommunications unregistered companies the period of time from the end of Library

MAY 1999 LAW SOCIETY GAZETTE 37 BRIEFING Personal injury judgments

Employer liability – road He stated that he had read the pared to withdraw the counter- left wrist, his sternum and, as a traffic accident – employ- papers on the file before the com- claim on condition that, if there consequence of the neck injury, ee driver crashing lorry – mencement of the case and was were to be an appeal, the defen- headaches. He went to his doctor liability of employer satisfied that Mr Moloney had dant would be allowed to reinstate the following morning and was received very serious injuries in the counterclaim. Counsel for Mr later referred to an orthopaedic Case the accident. Mr Moloney had Moloney’s employer also stated surgeon. The medical reports stat- William Moloney v Robert Francis been trapped in the vehicle for two that he would not seek an order ed no bones had been broken but Ely, T/A Templemore Express, hours, which the judge described for costs provided that there was there had been soft tissue injuries. High Court on Circuit before Mr as being an horrific experience. no appeal. Lavan J adjourned the Mr Walsh claimed he was Justice Vivian Lavan, judgment of The judge rejected the argu- case until the following morning unable to continue his occupation 16 November 1998. ment that William Moloney was to give the legal teams in the case as a mechanical engineer for a compelled to work too hard or an opportunity to consider the period of about a year and a half. The facts obliged to drive excessive dis- matter further. Next day, the court During that period he missed out On Tuesday 8 February 1994 at tances. The judge regretted that he was informed there would be no on job opportunities. Dublin Road, Portlaoise, William could not accept Mr Moloney’s appeal. Counsel for Mr Moloney, the driver of a lorry, version of events. He stated that Moloney’s employer agreed that The judgment crashed into the rear of a station- each plaintiff who comes into a no order need be made as to costs, Having outlined the facts, Morris ary lorry. Mr Moloney was driving court of law carries with him or and that the action and counter- P congratulated the parties on the the lorry in the course of his her the burden of proof. The claim should be dismissed. manner in which they conducted employment with Robert Francis plaintiff must satisfy the court that this case. It wasn’t considered a Ely, T/A Templemore Express. on the balance of probability the Road traffic accident – high-speed crash but nevertheless Seven months after the accident, judge ought to accept his or her collision – driver injured – he was satisfied that it was both Mr Moloney’s solicitors sent a let- version of events. On the balance liability admitted – disturbing and upsetting for Mr ter to his employer alleging breach of probability, he did not accept amount of award Walsh. Morris P stated that he of contract, breach of duty includ- Mr Moloney’s account. The judge was satisfied that Mr Walsh had ing statutory duty, and holding the considered that his credibility had Case been unable to continue his occu- employer liable for the accident. been substantially damaged, and Seamus Walsh v Jean Lapene, pation as a mechanical engineer Subsequently, proceedings were that evidence in relation to the High Court on Circuit, Galway, for a period of a year and a half. issued, and in the statement of interference with the tachograph before Mr Justice Frederick The actual loss of earnings had claim it was stated that the cause of led him to draw an inference that Morris, President of the High been measured and incorporated the accident was that Mr Moloney William Moloney had, in the Court, judgment of 27 October into the special damages that were was excessively fatigued and was week immediately prior to his 1998. agreed at £27,500. working under severe pressure and, accident, interfered with the The judge noted that Mr Walsh as a consequence, collided with the tachograph when nobody else was The facts was required to stay in bed on a rear of another motor lorry. Certain in the vehicle. Seamus Walsh was driving along frequent basis and occasionally he allegations were made in relation to Making it perfectly clear that a public road on 27 July 1994 had to take a rest and retire to bed interference with the tachograph in there was a duty on the court to when his car was hit head-on by in order to overcome the the lorry. At the trial, Mr Moloney uphold the law, including the an oncoming car, causing his car headaches and the consequences testified as to what had happened. transposition of any EC law in to hit the ditch. His wife Mary of the radiating back pain. He had Essentially, he fell asleep. The relation to tachographs on lorries, Walsh was a front seat passenger received physiotherapy. argument had been made that he and regretting the fact that he in the car and she was pregnant. Morris P accepted the evidence was obliged to work too hard and knew Mr Moloney had suffered Mr Walsh remained at the of the consultant orthopaedic sur- was obliged to drive excessive dis- serious injuries, Lavan J conclud- scene of the accident from the geon who stated that Mr Walsh tances. ed that he would dismiss Mr time it occurred at around 3 was not going to develop arthritis, Moloney’s claim. o’clock in the afternoon up to that his wrist had recovered but he The judgment Counsel for Mr Moloney’s 6.30pm when the Gardai had car- might have some episodes of dif- Lavan J delivered an ex tempore employer stated that there was a ried out all the usual enquiries. He ficulty in the future in relation to judgment on 16 November 1998. counterclaim but that he was pre- suffered injuries to his neck, his problems with his neck.

FEATURES INCLUDE: LAW SOCIETY ROOMS Revised layout with two additional rooms Meet Improved ventilation and lighting at at the Four Courts Telephone extension in every room FOR BOOKINGS CONTACT Conference facility telephones the Mary Bissett or Paddy Caulfield Room service catering facility Four Courtat the Four Courts 668 1806 Friary Café Courts

38 LAW SOCIETY GAZETTE MAY 1999 BRIEFINGBRIEFING

The judge noted that Mr Walsh The facts The judgment accident for a period of two had to forgo sports and recre- Mary Walsh, a 41-year-old mar- Morris P set out the facts of the months she worried about ations because of the accident. He ried lady, was a passenger in a car case. It related to an assessment whether or not the baby was assessed damages for pain and involved in an accident on 27 July of damages only. Mrs Walsh had going to be well. Fortunately, the suffering and general damages to 1994. The car was driven by her suffered a soft tissue injury to her baby was born fine and healthy the date of trial at £30,000; pain, husband, Seamus Walsh, when an back from which she still suffers, and was not upset in any way by suffering and general damages oncoming car hit his car head-on although the accident happened the accident. into the future at £20,000; and and caused the car to hit the ditch. four years previously. She had The President of the High special damages at £27,500. Mrs Walsh was not wearing a seat given evidence that if she is Court awarded the sum of Having enquired whether there belt at the time because she was bathing the children and leaning £20,000 for pain and suffering to had been a lodgment in the case seven months’ pregnant. over the bath, she suffers pain. the date of the trial; £15,000 for and having been informed that Mrs Walsh suffered bruising on She had given evidence that the pain and suffering in the future; there was not, Morris P ordered her left arm. The bruising healed. sequelae from the accident affect- and special damages which were judgment in the amount of She also suffered a fracture of her ed her on a daily basis if she is agreed at £2,400. Having £77,500 and costs. front left tooth; a temporary crown required to sit for a period of enquired whether there was a was put on it and a permanent time. lodgment in the case and having Road traffic accident – crown would need to be put on it The judge noted that one of the been informed by counsel that collision – pregnant in due course. She hurt her wrist consequences of the pain in her there had been no lodgment, passenger in car injured – and had to wear a support for back is that Mrs Walsh is now less Morris P gave judgment for Mrs liability admitted – about six to eight weeks. The wrist active than she was prior to the Walsh in the sum of £37,400 amount of award recovered. She suffered a cut on accident and, as a consequence, together with costs. G her left knee that healed satisfacto- she has put on a considerable Case rily. She still had problems with amount of weight that was upset- These judgments were sum- Mary Walsh v Jean Lapene, High her neck. She had some numbness ting for her. marised by Dr Eamonn Hall, Court on Circuit, Galway, before in her left leg and although she had Morris P drew attention to the Solicitor, from Personal injury Mr Justice Frederick Morris, made a satisfactory recovery still fact that at the time of the acci- judgments from Doyle Court President of the High Court, judg- suffers occasionally if she has to dent Mrs Walsh was seven Reporters, 2 Arran Quay, ment of 27 October 1998. travel on a long journey. months’ pregnant and after the Dublin 7.

Donkeys are part of Ireland’s heritage

The donkeys in Ireland have for many years worked tirelessly and patiently for man and it is sad that many of these animals, now no longer needed, are neglected and suffer as a consequence.

Daisy has spent much of her life roaming around the housing estates of Dublin. She was often left to fend for herself, sometimes for a couple of months, before being caught and returned to the estate in Ballymun where she lived. Sadly her lifestyle left her with very arthritic back legs and she had great difficulty walking.

Daisy’s life improved dramatically when she was taken into the Donkey Sanctuary at Liscarroll. She receives all the love, care and medical help she needs to ensure the rest of her life is as long and happy as possible.

The Donkey Sanctuary at Liscarroll, Mallow, Co. Cork

provides a refuge for mistreated, neglected or unwanted don- ▲ ▲ ▲ ▲ keys and promotes the better care of donkeys For further details please contact: throughout the country. Paddy Barrett, Manager, The Donkey Sanctuary, (Dept ILT), Knockardbane, Liscarroll, Mallow, Co. Cork. Tel (022) 48398 Fax: (022) 48489 E-mail: [email protected] UK Registered Charity Number 264818

MAY 1999 LAW SOCIETY GAZETTE 39 BRIEFING

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

1997 in relation to health boards schedule to the Act are deleted ADMINISTRATIVE CHILDREN and local authorities is 21 because they are integral parts October 1998 of their respective departments Comptroller and Auditor ● Records of contractors to public but the records of those bodies Travel for abortion General and Committees bodies are deemed to be held by remain subject to the Act authorised of the Houses of the the public body concerned, inso- ● Certain typographical and other ● Where a psychiatrist gives evi- Oireachtas Act, 1998 (No far as they relate to the contract- changes are made to the third dence to the effect that a child is 47 of 1998) ed service schedule to the Act. likely to commit suicide unless This Act became effective on 16 ● Public bodies must assist per- she has a termination of preg- December 1998 when signed by sons using the Act to have per- Freedom of Information Act, 1997 nancy, then that termination of the President. sonal information held on them (Sections 6(4), 6(5) and 6(6)) pregnancy, which is a medical corrected when that information Regulations 1998, Freedom of procedure, is also a medical Appropriation Act, 1998 is inaccurate or misleading Information Act, 1997 (Sections treatment for the child’s medical (No 48 of 1998) ● Public bodies must assist per- 6(9)) Regulations 1998, Freedom condition and thus comes with- This Act became effective on 18 sons using the Act to obtain rea- of Information Act, 1997 (Section in the provisions of the Child December 1998 when signed by sons for decisions taken that par- 17) Regulations 1998, Freedom of Care Act, 1991. the President. ticularly affect them Information Act, 1997 (Section 18) ● The Minister for Finance and the Regulations 1998, Freedom of The applicants sought to quash a New statutory Minister for Enterprise, Trade Information Act, 1997 (Section District Court interim care order architectural register and Employment are prescribed 25(6)) Regulations 1998, Freedom made on 21 November 1997 in A Bill has been presented which for the purposes of assisting the of Information Act, 1997 (Section respect of their 13-year-old child, aims to: Taoiseach in the review of the 28(1)) Regulations 1998, Freedom C, pursuant to the Child Care Act, ● Place the National Inventory of use of ministerial certificates of Information Act, 1997 (Section 1991. The order also contained Architectural Heritage on a under the Act 47(3)) (Amendment) Regulations directions, pursuant to sections statutory footing ● Where information relates not 1998, Freedom of Information Act, 13(7)(a)(iii) and 17(4) of the 1991 ● Create a legal right of access to only to the requester but also to a 1997 (First Schedule) (Amend- Act, that C be permitted to proceed property for the purpose of third party, that information will, ment) Regulations 1998 and to such place as may be appropri- establishing the inventory, and subject to public interest or other Freedom of Information Act, 1997 ate for the purpose of securing a ● Place obligations on sanitary considerations, remain protected (Third Schedule) (Amendment) termination of her pregnancy. C authorities in respect of regis- ● A charge of no more than £5 Regulations 1998 had become pregnant after a vio- tered historic monuments may be made in relation to the lent rape by an adult friend of the which are the subject of dan- production of an x-ray under the family. In refusing the relief gerous building notices. Act; this is in addition to exist- (SI Nos 516-524 of 1998) sought, it was held that: BANKING ing maximum charges of £16.50 ● While in a conventional situa- Architectural Heritage (National per hour for search and retrieval tion it could be a breach of fair Inventory) and Historic Monu- of records, £0.03 per page for Commencement for procedures to embark upon the ments (Miscellaneous Provisions) photocopying, £0.40 for each Central Bank Act hearing of an application for an 1 Bill, 1998 3 /2 inch computer diskette and Sections 13-16 of the Central Bank important order when the com- £8 for each CD-ROM Act, 1998 come into force with plaining party had had no prior Freedom of information ● The references to the effect from 1 January 1999. notice of the particular order provisions extended Environmental Information Central Bank Act, 1998 (Com- being sought, the situation in ● The commencement date of the Service and the Government mencement) (No 2) Order 1998 (SI this case was exceptional. A Freedom of Information Act, Information Services in the first No 526 of 1998) long period had at that time

40 LAW SOCIETY GAZETTE MAY 1999 BRIEFINGBRIEFING

elapsed from the commence- suicide unless she had a termi- must also give due consideration ● The absolute discretion given to ment of the pregnancy and, if nation of pregnancy, that termi- to the wishes of the child, but Telecom Éireann to alter a sub- there was going to be a termina- nation of pregnancy, which was must do so within a constitution- scriber’s telephone number can tion, it had been essential that a medical procedure, was also a al framework, and there was only be exercised if it can be the matter be dealt with as medical treatment for her med- nothing within the section to shown that the subscriber is in quickly as possible ical condition. The termination indicate that the court was to breach of his contract with ● The District Court had been cor- of pregnancy at issue in this ignore the right to life of the Telecom Éireann or if circum- rect in not acceding to the appli- case came within the expression unborn as conferred by the stances exist in which, in the cant’s request that C be exam- ‘medical treatment’ and thus the Constitution. Accordingly, there interest of some revision of the ined by a new psychiatrist. direction of the District Court could be no question of s24 of telecommunications service, it is There had been evidence before pursuant to ss13 and 17 of the the 1991 Act being invalid hav- necessary to change the sub- the District Court that further 1991 Act came within the statu- ing regard to the Constitution scriber’s telephone number. investigations by a new psychia- tory provision ● On reading the transcript of the trist or by the psychiatrists who ● The only constitutional area in evidence, it was not apparent to The plaintiffs issued proceedings had already examined C were respect of which there was no the court how any judge could claiming that the defendant had not in the interests of C’s mental jurisdiction in the District Court have avoided the conclusion that wrongfully withdrawn the use of health was the question of the validity as a matter of probability there eight telephone numbers from ● The District Court had wrongly of any statutory enactment hav- was a real and substantial risk to them. In addition, the plaintiffs and unreasonably refused the ing regard to the Constitution. the life as distinct from the claimed that, in breach of statutory applicant’s application for an But every other area of the health of C, which could only be duty, the defendant refused to allo- adjournment to facilitate a con- Constitution came within the avoided by the termination of cate to them any additional tele- sultation with a psychiatrist to province of both the District her pregnancy. The District phone numbers. In granting the assist in the cross-examination Court and the Circuit Court in Court could not be interpreted as relief sought, it was held that: of the experts who had given the carrying out of their ordi- coming to any different conclu- ● The court was satisfied that the evidence. It had been obvious nary jurisdictions. The District sion. decision arrived at by the defen- that the case would end up in the Court, in dealing with applica- dant concerning the withdrawal High Court and the Supreme tions under the 1991 Act, was A v Eastern Health Board of the eight telephone numbers Court and, although the matter the appropriate court to deter- (Geoghegan J), 28 November 1997 had been arrived at for a single was urgent, there had to be a mine in any given case whether reason which could be legally balance between urgency and a termination of pregnancy justified, that is, the defendant’s fair procedures. However, cer- should occur. It would be unde- belief that the plaintiffs were COMMUNICATIONS tiorari was a discretionary rem- sirable for the courts to develop engaged in brokering telephone edy and in the circumstances of a jurisprudence under which numbers the case, including the belief questions of disputed rights to a Privatisation of Telecom ● The fact that there had been little that if the adjournment had been have a termination of pregnancy Éireann usage upon the lines could never granted it would have made no could only be determined by A Bill has been presented which have formed a legitimate basis difference to the District Court plenary action in the High Court seeks to amend the legislation gov- for the numbers being with- order, the court ought not quash ● The court was satisfied as to the erning Telecom Éireann to facili- drawn. The defendant had had the order on this ground constitutionality of ss13 and 17 tate an initial public offering of no policy to survey the numbers ● The District Court had had a of the 1991 Act shares in that company. and the level of their usage, still discretion whether to grant a ● Section 24 of the 1991 Act Postal and Telecommunications less one that such numbers stay and the order could not be required a court, when deter- Services (Amendment) Bill, 1998 should be withdrawn if their quashed on this ground mining a question in relation to usage was below a certain mini- ● Where a psychiatrist, as in this the care of a child, to regard the Telecom Éireann mum level case, gave evidence to the effect welfare of the child as the first unjustified in withdrawal ● The plaintiffs were at all times that a child was likely to commit and paramount consideration. It of numbers engaged in a bona fide franchis- 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]

MAY 1999 LAW SOCIETY GAZETTE 41 BRIEFING

ing business and if the defendant another person or where there compromise in both proceedings Holdings and Bula Limited, High had properly and accurately were other good and objectively amounted to oppression but that the Court (Keane J), 5 March 1998 assessed the situation, it would justifiable reasons present. The court was not empowered to make have come to the conclusion that defendant was in breach of its an order requiring all of the parties, the business activities of the statutory obligation by failing to whether as directors or as personal CRIMINAL plaintiffs were bona fide in so far allocate the numbers to the litigants, to join in the acceptance of as the provision of franchising plaintiffs and continuing to an offer which had been made to was concerned maintain that it would not do so. compromise the proceedings. In this Protections for Persons ● If the plaintiffs’ commercial his- action, the plaintiff instituted ple- Reporting Child Abuse Act, tory had been known to the Zockoll Group Limited v Telecom nary proceedings, seeking an order 1998 (No 49 of 1998) defendant at the time it made its Éireann (Kelly J), 28 November directing the defendant to withdraw This Act (presented as the Children decision, there would have been 1997 its personal claims in both sets of (Reporting of Alleged Abuse) Bill, nothing in that history to justify proceedings and alleged that the 1998) came into operation on 23 a determination that the arrange- defendant was acting negligently, January 1999 by virtue of s7(2). ments which were to be was in breach of its fiduciary and COMPANY embarked upon in this jurisdic- other duties to the plaintiff and in tion were unlawful breach of the plaintiff’s constitu- EDUCATION ● There could be no legal justifica- Directors have duty to tional rights. The High Court tion for removing the numbers individual shareholders refused the relief sought. In dismiss- from the plaintiffs simply ● In particular circumstances a ing the appeal, it was held that: George Mitchell because the defendant had company director may be in a ● Directors of a company occupy a Scholarship Fund Act, 1998 decided that it wished to give position where he may owe a fiduciary position in relation to (No 50 of 1998) them to another party, with fiduciary duty to individual the company but they do not owe This Act came into force on 23 whom it had formed a good rela- shareholders. a fiduciary duty, merely by virtue December 1998 on its signature by tionship of their offices, to the individual the Presidential Commission. ● The fact that the plaintiffs had Prior to 1973, the plaintiff and the members furnished an undertaking that defendant bought lands in Navan ● In particular circumstances a Education Act, 1998 (No 51 they would not broker telephone and formed a company, Bula company director could be in a of 1998) numbers removed any doubts Limited, with a view to the position where he might owe a This Act was signed into law by the concerning their bona fides exploitation of the ore body under fiduciary duty to individual Presidential Commission on 23 ● In exercising such discretion as those lands. Bula borrowed sub- shareholders December 1998. it has in relation to the with- stantial sums from a number of ● In alleging damage caused to drawal of telephone numbers banks and gave as security, among Bula by the conduct of the defen- which had been allocated to a other things, personal guarantees dant, the plaintiff could not point EQUALITY customer, the defendant had to by the plaintiff. By 1985, no mining to any conduct on the part of the use the power entrusted to it fair- had taken place and the banks defendant which had caused ly and reasonably appointed a receiver to Bula and damage to the company except New attempt at equal ● It followed that the absolute dis- also obtained judgment on foot of its actions as controlling majority status legislation cretion given to the defendant to the personal guarantees of the shareholders in failing to act rea- On 19 June 1998, the Equal Status alter a subscriber’s telephone plaintiff. In 1986, Bula, the plaintiff sonably in dealing with possible Bill, 1997 was declared unconstitu- number could only be exercised and the defendant brought an action settlement proposals tional by the Supreme Court. As if it could be shown that the sub- against Tara Mining Limited and ● Any damage that has been yet, no replacement Government scriber was in breach of his con- the Minister for Energy and a fur- caused to the plaintiff as a result Bill has been presented and a pri- tract with the defendant or if cir- ther action against the receiver and of the defendant’s conduct in act- vate member’s Bill has now been cumstances existed in which in the banks. A serious divergence of ing unreasonably or irresponsi- introduced which aims to: the interest of some revision of view arose between the plaintiff bly in relation to the conduct or ● Provide for equality in goods the telecommunications service and the defendant as to the manner compromise of both sets of pro- and services outside the employ- it was necessary to change the in which litigation on behalf of ceedings had been remedied by ment context subscriber’s telephone number Bula and the plaintiff was being the s205 proceedings ● Address inequality in education, ● The procedure adopted by the conducted in both sets of proceed- ● The suspension of the constitu- property, land, accommodation, defendant in the instant case had ings whereby the plaintiff sought to tional right of the defendant to partnerships, clubs and so on been fatally flawed. In the cir- accept offers of compromise. In litigate in circumstances where ● Define the grounds of prohibited cumstances, the plaintiffs were 1993, a petition was brought under the plaintiff was unable to discrimination as gender, marital entitled to have reinstated to s205 of the Companies Act, 1963 in demonstrate that the exercise of status, family status, sexual ori- them the telephone numbers in which it was claimed that the that right was in any sense entation, religion, membership question affairs of Bula were being conduct- wrongful was an impermissible of the travelling community, ● The defendant was under a statu- ed in an oppressive manner by the violation of the defendant’s right age, disability and race tory duty to allocate numbers to defendant and in disregard of the to litigate. ● Permit the making of regula- the plaintiffs, save and except interests of the plaintiff. It was tions about accessibility of where such numbers might found that the action of the defen- Crindle Investments, Roche and transport facilities for disabled already have been allocated to dant in rejecting particular offers of Roche v Wymes, Woods, Bula persons, and

42 LAW SOCIETY GAZETTE MAY 1999 BRIEFINGBRIEFING

● Provide for the investigation of ● Allow the admittance in evi- This Act was signed into law by the Presidential Commission on 23 claims of discrimination by the dence in civil proceedings of the the Presidential Commission on 23 December 1998. Director of Equality Investi- provisions of a code of practice December 1998. gations. made by the National Authority for Occupational Safety and TRANSPORT Equal Status Bill, 1998 Health, and MONETARY UNION ● Increase the penalties provided for under the Safety, Health and Extended duration for Welfare at Work Act, 1989. Commencement for haulage and passenger FISHERIES EMU Act licences proposed Safety, Health and Welfare at Work All sections of the Economic and A Bill has been presented which Fisheries and Foreshore (Amendment) Bill, 1998 Monetary Union Act, 1998 which seeks to: (Amendment) Act, 1998 had not yet been commenced came ● Provide for a duration of up to (No 54 of 1998) Food Safety Authority into operation on 1 January 1999 five years for haulage and pas- This Act was signed into law by operational with the exception of s11(2). senger operator licences (as the Presidential Commission on 23 1 January 1999 is appointed as the Economic and Monetary Union opposed to the current three) December 1998. establishment day for the purposes Act, 1998 (Certain Provisions) ● Set out re-qualifying procedures of the Food Safety Authority of (Commencement) (No 2) Order and criteria Ireland Act, 1998. 1998 (SI No 527 of 1998) ● Oblige operators to have ade- Food Safety Authority of Ireland quate parking space for their HEALTH AND SAFETY Act, 1998 (Establishment Day) vehicles ● Order 1998 (SI No 540 of 1998) SCIENCE AND Replace existing plates with a Changes proposed to TECHNOLOGY transport disc regime, and safety at work ● Tighten the rules in relation to A private member’s Bill has been vehicle overweight offences. INTERNATIONAL introduced which will, if passed: Scientific and Technolog- ● Make the appointment of a ical Education (Invest- Road Transport Bill, 1998 G workers’ safety representative Jurisdiction of Courts and ment) Fund (Amendment) obligatory in certain types of Enforcement of Judgments Act, 1998 (No 53 of 1998) The ILT digest is reproduced by employment Act, 1998 (No 52 of 1998) This Act was signed into law by permission of the Irish Law Times.

HERE THERE’S A WILL IRISH KIDNEY W ASSOCIATION Donor House, THIS IS THE WAY… 156 Pembroke Road, Ballsbridge, Dublin 4. Tel: 01 -668 9788/9 When a client makes a will in favour of the Society, it would Fax: 01 - 668 3820 be appreciated if the bequest were stated in the following words: The Irish Kidney Association was formed in 1978 to: “I give, devise and bequeath the sum of X pounds to the Irish 1. Promote the general welfare of persons suffering Cancer Society Limited to be applied by it for any of its kidney failure - financial and psychological. charitable objects, as it, at its absolute discretion, may decide.” 2. To give advice and guidance to parents and relatives. All monies received by the Society are expended within the 3. To arrange lectures, conferences and meetings Republic of Ireland. pertaining to kidney disease. “Conquer Cancer Campaign” is a Registered Business Name 4. To support research projects into the causes and and is used by the Society for some fund-raising purposes. effects of inherited disorders and kidney failure. The “Cancer Research 5. To print and distribute the Multi-Organ Donor Card Advancement Board” and actively promote public awareness of organ allocates all Research failure. Grants on behalf of the Society. REMEMBER US WHEN MAKING A WILL! 5 Northumberland Road, Dublin 4. Tel: (01) 668 1855 15 Bridge Street, Cork. Tel: (021) 509 918 Certified by the Revenue Commissioners as a charity: 6327 OUR FINANCIAL ASSISTANCE IS NATIONWIDE

MAY 1999 LAW SOCIETY GAZETTE 43 BRIEFING

Eurlegal

News from the EU and International Affairs Committee Edited by TP Kennedy, Legal Education Co-ordinator, Law Society of Ireland Hope fades for EU recognition of same-sex partnerships

n Case T-264/97, D & Sweden v partnership as equivalent to mar- Substance of the the decision to refuse the house- ICouncil of Ministers, 28 January riage and pay him a supplemental arguments hold allowance. The court con- 1999, the Court of First Instance household benefit under the The claimant raised four argu- cluded that the Council had not considered whether the Council of statute. By letter of 29 November ments to annul the decision of the violated the principle of equality Ministers violated EC law when it 1996, the Council rejected the Council. First, he argued that by its refusal, because, under refused to pay a supplemental claimant’s request on the ground refusal to pay the benefit violated Community law, stable relation- household benefit to a Council that the benefit was not available fundamental European Commun- ships between two persons of the civil servant. Staff regulations pro- to non-married civil servants, and ity principles of equality of treat- same sex had not been assimilated vided such benefits to married that the statute did not permit the ment and non-discrimination. to relations between married per- employees. The employee was in a Council to regard the claimant’s Second, he argued that the sons (paragraph 28, citing Case C- relationship with a member of the registered partnership as equiva- Council’s decision ignored the 249/96, Lisa Grant v Southwest same sex, and this relationship lent to marriage. The claimant uniqueness of his personal status Trains, 17 February 1998, not yet was registered under Swedish law. sent an ‘objection’ to this decision and amounted to an abuse of dis- reported). The court ruled that the refusal to to the Council. He argued that the cretion. Third, he invoked article The court rejected out of hand provide the household benefit did Council was obliged to assimilate 8 of the European convention on the claimant’s second argument not violate EC law. his registered partnership to mar- human rights, which protects pri- based on his unique status under riage, and that the refusal to do so vate and family life from unwar- the law of Sweden. Facts of the case violated European Community ranted interference. Finally, he The court cited the Grant case The Swedish Law of Registered principles of equality and non-dis- claimed that the refusal to pay to reject the claimant’s third argu- Partnerships came into effect in crimination, and article 8 of the him the household benefit violat- ment that article 8 of the European January 1995. It permitted two European convention on human ed article 119 of the EC treaty, convention on human rights persons of the same sex to register rights. The Council rejected this which mandates equal pay with- required that the decision of the their partnership with the Swedish objection in a decision of 30 June out regard to sex. Council be annulled. It noted that government, with legal conse- 1997. the European Commission on quences in large measure identical The claimant filed a timely The judgment Human Rights maintained that to those of a civil marriage. The petition to annul the Council deci- The court rejected all four of the durable homosexual relations, claimant, D, registered his partner- sion with the Court of First claimant’s arguments. In his first such as those maintained by the ship under Swedish law, and Instance (which has jurisdiction argument, based on equality of claimant with his partner, are not obtained a certificate evidencing over cases involving disputes with treatment and non-discrimination, protected by the right to respect for the registration. Community employees). The the claimant sought to rely on family life contained in article 8 of The claimant was employed as Swedish Government intervened recent amendments to the staff the European convention on a civil servant with the Council of in the case to argue in support of regulations. These amendments, human rights. Ministers. The Statute of the Civil the claimant. Argument was held adopted in April 1998, guaranteed Finally, the court rejected the Servants of the European Com- in November 1998, and a judg- equal treatment in the application claimant’s argument that denial of munities (‘staff regulations’) pro- ment (in French) was delivered on of the staff regulations without the household benefit violated arti- vided for payment of a supple- 28 January 1999. The judgment direct or indirect reference to sex- cle 119, which prohibited pay dis- mental household benefit to ‘mar- rejected all of the substantive ual orientation. The court, howev- crimination based on sex. It ruled ried’ civil servants. By letters arguments put forth by the er, declined to consider these that, inasmuch as the benefits dated 16 and 24 September 1996, claimant and by Sweden. The amendments. It evaluated Council would have been denied to a the claimant requested that the court ruled in favour of the liability in light of the staff regu- female employee with a same-sex Council recognise his registered Council. lations that applied at the time of partner, there was no discrimina-

44 LAW SOCIETY GAZETTE MAY 1999 BRIEFINGBRIEFING

tion based directly on the sex of that such discrimination was female the benefits would have female-to-male transsexuals were the claimant. unlawful. been granted. (The male employee fired from employment. Thus, in Accordingly, the court rejected The court ruled in favour of the who had held Ms Grant’s position Grant, the court changed its analy- the appeal. Each party was ordered claimant. It wrote, in paragraph 20 before her had obtained travel con- sis, without acknowledging it had to pay its own costs. of its judgment: ‘The scope of the cessions for his unmarried female done so. The court also ruled that The judgment in D & Sweden v directive cannot be confined sim- partner.) Community law did not prohibit Council of Ministers was a grave ply to discrimination based on the In the alternative, she argued discrimination based on sexual disappointment to those who fact that a person is of one or the the denial was a form of discrimi- orientation; its expansive interpre- hoped the court would interpret other sex. In view of its purpose nation based on sexual orientation, tation of the principle of equality Community law to recognise and the nature of the rights which it and that article 119 prohibited sex- in P was limited solely to transsex- same-sex partnerships. In inter- seeks to safeguard, the scope of the ual orientation discrimination. uals. preting Community staff regula- directive is also such as to apply to That is, she argued that discrimi- Why did the court regress from tions, the Court of First Instance discrimination arising, as in this nation based on ‘sex’, as interpret- its earlier, progressive, ruling in P was free of the constraints of fed- case, from the gender reassignment ed for the purposes of article 119, v S and Cornwall? Commentators eralism. There was less risk of of the person concerned’. included discrimination based on have suggested it was because of being seen as intruding into sensi- The court also ruled, in para- ‘sexual orientation’. (The Human the greater incidence of homosex- tive areas of Member State social graph 21 of the P v S and Cornwall Rights Committee of the uality. Approximately one out of policy. Indeed, Sweden inter- judgment, that discrimination International Convention on Civil every 30,000 men and one out of vened, arguing that its social poli- against the transsexual claimant and Political Rights (ICCPR) has every 100,000 women are trans- cy favoured interpreting the staff constituted a form of direct sex dis- found that the ICCPR prohibition sexual, according to the recom- regulations so as to recognise the crimination, because she had been on sex discrimination includes mendation of Advocate General claimant’s partnership as equiva- treated differently according to sexual orientation.) Tesauro in P v S and Cornwall. By lent to marriage. It was an ideal whether she was perceived as a Advocate General Elmer, citing contrast, according to figures cited context for the court to give a man or a woman. In other words, the earlier judgment in P v S and by Advocate General Elmer in broad interpretation of fundamen- the claimant was allowed to act as Cornwall, recommended that the Grant v South-West Trains, up to tal principles of Community law. her own comparator. Traditionally, court rule in favour of Lisa Grant. 35 million Europeans are lesbian, It is thus doubly disappointing that transsexuals had lost claims of He argued that direct sex discrimi- gay or bisexual. the court took such a constricted direct sex discrimination due to an nation was present in the case, and It is also likely that the court view of equality and human rights. ‘equal misery’ argument: the courts that, in any case, article 119 should ruled against Lisa Grant because In the recent past, there were concluded that because both male- be interpreted broadly to prohibit her case implicated intimate rela- realistic hopes that Community to-female transsexuals and female- discrimination based on sexual tionships in a way that the P case law would be interpreted to recog- to-male transsexuals would be orientation. did not. In reaching its decision in nise same-sex partnerships. In a fired from employment, the dis- The court rejected the Advocate Grant, the court (unnecessarily) relatively short time, however, the crimination was not due to sex, but General’s recommendations and considered whether ‘persons who parameters of the debate have fun- to something else, to wit, the sex ruled against both of Ms Grant’s have a stable relationship with a damentally changed. Now, even change. arguments. It ruled, firstly, that the partner of the same sex are in the Community statements of equality Thus, the claimant must have discrimination at issue did not same situation as those who are for sexual minorities, such as the been hopeful when the Court of constitute direct sex discrimina- married or have a stable relation- amendments to staff regulations Justice subsequently heard argu- tion. This was due to the tradition- ship outside marriage with a part- adopted in April 1998, are likely ments in Case C-249/96, Lisa al ‘equal misery’ argument: travel ner of the opposite sex’ (paragraph to be interpreted narrowly: so nar- Grant v Southwest Trains, 17 concessions would be refused to a 29). The court concluded they rowly, in fact, that the type of dis- February 1998, not yet reported. In male worker if he were living with were not in the same situation. crimination complained of in D & that case, Lisa Grant’s employment a person of the same sex, just as Community law did not provide Sweden would not be prohibited. contract with Southwest Trains they were to a female worker liv- such equivalence, the European The cause for recent optimism provided travel concessions to the ing with a person of the same sex. Commission of Human Rights had came in Case C-13/94, P v S and employee’s spouse or ‘common The court’s analysis of direct held that stable homosexual rela- Cornwall County Council, 30 law opposite-sex spouse’. Ms sex discrimination was inconsis- tionships did not fall within the April 1996, not yet reported. In Grant sought travel concessions for tent with the analysis in P v S and right to respect for family life that case, the claimant’s employ- her female partner. Southwest Cornwall, where P had been under article 8 of the Convention ment was terminated because she Trains refused her request, and Ms allowed to act as her own com- on human rights, and most was a transsexual. She brought a Grant brought an action claiming parator. If Lisa Grant had acted as Member States did not regard such claim under EC Council Directive this was a violation of article 119 of her own comparator, she would relationships as equivalent. Hence, 76/207, the so-called Equal treat- the EC treaty, which mandates have won: if she were (perceived ‘in the present state of law within ment directive, which mandated equal treatment without regard to to be) a man, she would have the Community, stable relation- equal treatment in employment for sex. obtained the travel concessions for ships between two persons of the men and women. Advocate Ms Grant argued before the her female partner (as had the man same sex are not equivalent to General Tesauro acknowledged Court of Justice of the European who held her job before her). marriages or stable relationships that Community law did not Communities that the denial of the Conversely, if the equal misery outside marriage between persons specifically prohibit discrimina- travel concession constituted a analysis of Grant had been applied of opposite sex’ (paragraph 35). In tion against transsexuals, but he form of direct sex discrimination, to the claimant in P, she would my opinion, the court’s analysis recommended that the court rule because ‘but for’ her sex as a have lost: both male-to-female and was selective: it did not consider

MAY 1999 LAW SOCIETY GAZETTE 45 BRIEFING

the trend in the Member States to First Instance relied on this ruling without direct or indirect refer- court’s decision in D & Sweden v prohibit employment discrimina- in D & Sweden v Council of ence to the sexual orientation of Council, or whether a Community tion against homosexuals and the Ministers. the employee. These amendments employee who now sought to rely case it cited dated from 1990. are in force and will control any on these amendments would suc- The Grant ruling has shifted the Hope for the future? future claims similar to those of ceed. In its judgment, the court terms of the debate from prevent- In D & Sweden v Council, the the claimant in D & Sweden v noted that, at the time the Council ing discrimination to granting court refused to consider April Council. Should this be a cause adopted the April 1998 amend- recognition to a particular type of 1998 amendments to the staff reg- for optimism? ments, it invited the Commission relationship. To phrase the issue in ulations. These amendments It is unclear whether the April to make recommendations con- such a fashion virtually pre- expressly provided for equality in 1998 amendments to the staff reg- cerning the treatment of registered ordains the outcome. The Court of the application of the regulations ulations would have changed the partnerships under the staff regu-

Conferences and seminars Association Européenne Community law and WTO law Date: 29-30 November IBC des Avocats Date: 2-3 September Venue: Trier, Germany Contact: (Tel: 0044 171 4535495) Contact: Dr Kurt G Weil Venue: Stockholm, Sweden (tel: 0049 211 13680) Topic: Human rights and combat- Topic: European air transport Topic: Biotechnological inventions: ing racism in the European Union services and airports Topic: Annual congress: corporate legal protection and limits Date: 4-5 December Date: 10-11 June governance Date: 14-15 October Venue: Trier, Germany Venue: Brussels, Belgium Date: 3-6 June Venue: Trier, Germany Venue: Venice, Italy AIJA (International Association IIR Topic: Legal aspects of tourism of Young Lawyers) Contact: (Tel: 0044 171 9155055) Academy of European Law and travel in the European single Contact: Gerard Coll (tel: 01 667 Contact: (Tel: 0049 651 937370) market 5111) Topic: Data Protection Ireland ‘99 Topic: The future of professional Date: 21-22 October Date: 16 June associations in the single market Venue: Trier, Germany Topic: Convergence of the bank Venue: Dublin Date: 17-18 May and insurance markets Venue: Trier, Germany Topic: International private law Date: 10-12 June International Association for in the single market: The Venue: Berne, Switzerland Consumer Law Topic: Consumer protection in the Europeanisation of liability law Contact: Christa Heinonen field of banking law Date: 25-26 October Topic: Tourism law (tel: 00358 9 19122684) Date: 27-28 May Venue: Trier, Germany Date: 24-27 June Venue: Trier, Germany Venue: Capri, Italy Topic: The consumer in the Topic: Current developments globalised information society Topic: New and forthcoming in European distribution law: Topic: Annual congress 1999 Date: 20-22 May developments in employment law panorama after the Green Paper Date: 22-27 August Venue: Helsinki, Finland in the European Community Date: 4-5 November Venue: Brussels, Belgium Date: 31 May-1 June Venue: Trier, Germany Law Society of Scotland Venue: Trier, Germany Topic: Private-public partnership Contact: (Tel: 0044 141 5531930) Topic: Licensing contracts under Date: 20-21 November Topic: Value-added tax in the European cartel law Venue: Warsaw, Poland Topic: 50th anniversary single market Date: 8-9 November conference Date: 1-2 June Venue: Trier, Germany Catholic University of Louvain Date: 8-10 July Venue: Stockholm, Sweden (Louvain-la-Neuve) Topic: Telebanking and cyber- Contact: Beata Dunaj (tel: 0032 10 Solicitors’ European Group Topic: Decentralised application money in the European single 478531) Contact: (Tel: 0044 1905 724734) of European anti-trust law: market should the European Commission Date: 15-16 November Topic: European Community Topic: The new Merger rules give up its monopoly of Venue: Trier, Germany consumer law one year on and other recent exemption? Date: 6-16 July developments Date: 10-11 June Topic: Current developments in Venue: Louvain-la-Neuve, Belgium Date: 18 May Venue: Trier, Germany European fiscal law Venue: London, England Date: 18-19 November European Lawyers’ Union Topic: Co-operation in the area of Venue: Amsterdam, The Contact: Klaus-Ullrich Link (tel: Topic: Annual conference education and the recognition of Netherlands 0049 711 4897923) Date: 20-22 May diplomas on a European level Venue: Lille, France Date: 17-19 June Topic: The Community trade Topic: Setting up companies in the Venue: Trier, Germany mark: caselaw of the Boards of European Union Topic: Public procurement policy in Appeal of the Office for Date: 17-18 June the Community Topic: European Community law: Harmonisation in the Internal Venue: Dresden, Germany Date: 16 June an introduction for young lawyers Market Venue: London, England Date: 12-16 July Date: 18-19 November Contact: Gérard Abitbol (tel: 0033 Venue: Trier, Germany Venue: Alicante, Spain 0491 338195) Topic: Broadcasting, pay-per-view Topic: European social law and sports competition law Topic: Fundamental economic Topic: The eco-label as a voluntary Date: 15 October Date: 6 July rights in international law: measure and consumer interests Venue: Marseilles, France Venue: London, England

46 LAW SOCIETY GAZETTE MAY 1999 BRIEFINGBRIEFING

lations (paragraph 31). According that ‘the discrimination of which same-sex partnerships. It will be are not regarded as similar to tra- to the court, it will be for the Ms Grant complained did not permissible to deny recognition of ditional marriages, or even to rela- Council to modify the staff regula- amount to discrimination based on same-sex partnerships under the tions between unmarried people of tions in light of the Commission’s sexual orientation’. Instead, the staff regulations, even though the opposite sex. Express guaran- recommendations (paragraph 32). discrimination was based on the these regulations mandate equal tees of ‘equality’ most likely do In other words, it will be for the fact that Ms Grant was not treatment without regard to sexual not require that gay couples be Council, acting on a recommenda- involved in a traditional hetero- orientation. afforded the same benefits as het- tion of the Commission, to decide sexual relationship, and this type The legal situation for lesbian erosexual couples. what equality requires. of discrimination was different and gays following the decisions Those who seek to normalise It seems unlikely the than discrimination based on sexu- in D & Sweden v Council and the position of lesbian, gay and Commission will recommend that al orientation. The implication is Grant v Southwest Trains is poor. bisexual Europeans would be bet- the April 1998 amendments that, in the Commission’s view, Fundamental principles of ter off focusing their efforts at the require that same-sex partnerships the discrimination to which Ms Community law concerning equal- level of the Member States. G be treated as similar to traditional Grant was subjected was permissi- ity, non-discrimination and human marriage. This is apparent from its ble, even if discrimination based rights do not prohibit discrimina- Bruce Carolan is Head of the submissions in the case of Grant v on sexual orientation was prohibit- tion based on sexual orientation. Department of Legal Studies at Southwest Trains. ed. If the Commission adheres to Under the present state of the Dublin Institute of The Commission filed observa- this position, then its recommen- Community law, it is permissible Technology. He would like to tions in the Grant case. It agreed dations to the Council of Ministers to discriminate against lesbians thank Dr Nicola Timoney and with Ms Grant that article 119 regarding the April 1998 amend- and gay men – to fire them from Noel Deeney of DIT for help in prohibited sexual orientation dis- ments to the staff regulations are jobs, to deny them accommoda- translating the judgment of the crimination. However, it argued unlikely to include recognition of tion. Their durable relationships Court of First Instance.

Protection of designations of origin Denmark, Germany and France v an agricultural product or a food- Commission concluded that ‘Feta’ the Member States other than the Commission, supported by Greece stuff. had not become the common name state of origin and had considered (Cases 289/96, 293/96 and 299/96), ‘Feta’ is a salted white cheese of a product. It registered ‘Feta’ as their national legislation to be judgment of 16 March 1999. traditionally produced in Greece a protected designation of origin in entirely irrelevant. The ECJ held EU law provides protection for from sheep’s milk or a mixture of 1996. Denmark, Germany and that the Commission had not taken geographical indications and desig- sheep’s milk and goat’s milk. France contested the registration. account of all the factors relevant nations of origin of agricultural Greece wished to have ‘Feta’ pro- Cheese has been produced from to its decision. In deciding whether products and foodstuffs. EU law tected under EU law as a designa- cow’s milk and legally marketed a name had become generic, the also provides that ‘generic’ names tion of origin. A majority of the under the name ‘Feta’ since 1963 situation existing in the Member cannot be registered and enjoy pro- other Member States wished to in Denmark, 1981 in the State in which the name originates tection as designations of origin. have it included on a list of gener- Netherlands, and 1985 in Germany. and in areas of consumption, ‘Generic’ names are those of an ic names. The Commission The European Court of Justice together with the relevant national agricultural product or foodstuff arranged for a survey to be carried annulled the designation of origin or EU legislation, must all be taken which, although relating to the out questioning 12,800 nationals of status of ‘Feta’. It held that the into account. The court held that place or the region where they were the 12 states then making up the Commission had unjustly min- the Commission should have taken originally produced or marketed, European Community. imised the importance to be account of the existence of prod- has become the common name of Based on the survey, the attached to the situation existing in ucts legally on the market. G

RECENT DEVELOPMENTS IN EUROPEAN LAW entitled her to four weeks’ paid tive sense. Thus, Ms Gibson was enti- and integrated water policy EMPLOYMENT annual leave and that she was enti- tled to be paid for the period of her throughout the EU. It implements Working time directive tled to be paid for that period. The holiday entitlement. quality standards and emission limit Gibson v East Riding of Yorkshire industrial tribunal rejected her claim values to achieve good quality for all Council, Employment Appeal but it was upheld by the Employment waters in the Union. The directive ENVIRONMENTAL LAW Tribunal (UK), January 1999. Gibson Appeals Tribunal. The council was an covers inland surface water, transi- was employed by the council as a emanation of the State so that the Water pollution tional waters, coastal waters and school swimming instructor. She did directive could be directly effective Environment ministers have reached ground water. The objective of not work during school holidays and against it. Morrison J held that article agreement on the Commission’s pro- achieving clear waters is to be did not receive any payment for 7 was clear and precise and conferred posal for a water directive reached within 16 years after the these holidays. She argued that arti- individual rights. Thus, it was capable (Com(98)76). The proposal is entry into force of the directive, sub- cle 7 of the Working time directive of being applied in a directly effec- designed to introduce a coherent ject to certain exceptions.

MAY 1999 LAW SOCIETY GAZETTE 47 PEOPLE AND PLACES

Annual Dinner of the Law Society 1999

The President of the Law Society, Patrick O’Connor, recently hosted the Society’s Annual Dinner at Blackhall Place. Among the distinguished guests were senior members of the judiciary, including Chief Justice Liam Hamilton, ambassadors from the United Kingdom, United States of America, China, Nigeria and Poland, and senior Irish politicians. (Pictured above) Law Society President Patrick O’Connor with Fine Gael leader John Bruton, and (above right) with Tanaiste Mary Harney and Liz O’Donnell, Minister of State at the Department of Foreign Affairs

The Law Society recently held a lunch to honour distinguished South African judge, Richard Goldstone. Pictured here are (front row, left to right): Law Society President Patrick O’Connor, Judge Richard Goldstone (SA), and A number of CLE seminars have recently been held on stamp duty. Speaking Deputy Director General Mary Keane; (middle row) John Fish, DPP Eamonn at one seminar in Cork were (l-r) David Donegan of solicitors Henry PF Barnes, and Harriet Kinahan of Co-operation North; (back row) Director Donegan & Son, Luke Byrne of the Revenue Commissioners’ Stamp Duty General Ken Murphy, Barry Donoghue, Philip Lee, and Ernest Hanahoe Section, and Dublin solicitor John O’Connor

Keep your magazines Please send me magazine binders at £7.95 plus £1.20 p&p (special p&p rate of £5.50 for orders of between five and ten binders) safe with a new I enclose my cheque for £ Please charge my Access Visa Mastercard Eurocard Gazette binder Credit card number Expiry date: MONTH/YEAR EACH BINDER COSTS £7.95 PLUS £1.20 POST Name: AND PACKAGE (FOR ORDERS OF BETWEEN FIVE Address: Telephone: AND TEN BINDERS, A SPECIAL ALL-IN POSTAGE Signature: RATE OF £5.50 APPLIES) Please return to Law Society Gazette, Blackhall Place, Dublin 7.

MAY 1999 LAW SOCIETY GAZETTE 49 PEOPLE AND PLACESPLACES?

Speaking at a recent CLE seminar on the Freedom of Information Act in Cork was Paul Lavery of Dublin solicitors McCann FitzGerald

Lady Solicitors’ Golf Society ver 30 members teed off at Othe Lady Solicitors’ Golf Society spring outing at Charlesland Golf Club in Co Wicklow recently. The results County Leitrim Solicitors’ Bar Association were as follows: first, Geraldine Law Society President Patrick O’Connor and Director General Ken Murphy recently visited the Leitrim Solicitors’ Bar Association. (Back row, l-r): Director General Ken Murphy, Michael Keane, Noel Quinn, President of the County Hickey, H/C 45, 38 points; sec- Leitrim Solicitors’ Bar Association Michael P Keane, Peter Collins, State Solicitor Conal Gibbons, and Gabriel Toolan, ond, Michelle Linnane, H/C 31, Bar Association Secretary; (front row, l-r): Mary McAveety, President Patrick O’Connor, Morita Dockery and Niamh 36 points; gross, Barbara McGovern Ceillier, H/C 17, 18 gross points; third, Alison Fanagan, H/C 31, 35 points; first 9, June Greene, H/C 28, 18 points; second 9, Mairead Cashman, H/C 36, 18 points; visitor’s prize, Michelle Prendiville, H/C 39, 40 points. The next outing will take place at Kilkea Castle, Co Kildare on Friday 3 September. For further information, contact Diana Jamieson or Fionnuala McGinley at A&L Goodbody, Dublin.

LAW SOCIETY OF IRELAND ON E-MAIL

Contactable at [email protected] Kildare and Laois bar associations Law Society President Patrick O’Connor and Director General Ken Murphy recently visited the Kildare and Laois bar Individual mail addresses associations. (Front row, l-r): Grainne White, Secretary of the Kildare Bar Association, Director General Ken Murphy, take the form: Kildare Bar Association President Toss Quinn, Law Society President Patrick O’Connor, Laois Bar Association President [email protected] Philip Meagher, John Reidy, and Ann Mannings, Secretary of the Laois Bar Association; (back row, l-r): Mark Stafford, Elaine Cox, John Turley, Bernadette Greene, Cyril Osborne, Deirdre O’Connor and Declan Breen

50 LAW SOCIETY GAZETTE MAY 1999 PEOPLE AND PLACES

Lost in thought: Law Society President Patrick O’Connor and Geraldine Clarke, head of the Irish delegation to the CCBE, pictured at the 27th annual conference of the presidents and chairmen of the law societies and bars of Europe in Vienna. Also in the picture is the President of the Law Society of Iceland

Fermoy solicitor Brian Carroll receives the Cedric Barclay Prize from the Rt Hon Lord Justice Evans, President of the Chartered Institute of Arbitrators, in London. The prize was awarded for achieving first place in the writ- ing award as part of the Diploma in International Commercial Arbitration

At the recent Dublin Solicitors’ Bar Association Dinner Dance were (l-r) Yvonne Chapman, Law Society Director General Ken Murphy, Law Society Deputy Director General Mary Keane, President of the Southern Law Association, Sean Durcan and Daphne Madden

Mayo man Patrick O’Connor plants a yew tree in the gardens of the Society’s Blackhall Place headquarters. Pictured at the recent launch of Dangerous driving cases (Roundhall Sweet & Maxwell) were The yew is indigenous to Ireland and, according to solicitor Gerard O’Keeffe, author of the book, Chief Justice Liam Hamilton, and Mr Justice Ronan O’Connor, the name Mayo can be translated from the Keane of the Supreme Court gaelic as ‘the valley of the yew’

MAY 1999 LAW SOCIETY GAZETTE 51 Meet your clients... enjoy a coffee... or simply take enjotime y to relax at the Society’s Friary at Café the Four Court s

Open 9am to 4.30pm, Monday to Friday

Law Society of Ireland, Friary Café, Four Courts, Inns Quay, Dublin 2, Telephone 873 1806 WEBWATCH Webwatch

lready 14% of people in the Oireachtas from 1922 to 1997 AIreland are on the Internet. can now be accessed on the Web This is according to a web site at www.irlgov.ie/ag/, though the which collects data relating to material can be slow to download Internet use throughout the world at times. While waiting, Internet (www.nua.ie/). The figure is users might like to pop along to expected to rise sharply when the Karwig Wines site (www.kar- Gateway begins its free Internet wig-wines.ie) which contains service later this year. details on an impressive array of Irish business appears to be wines. Special offers abound and well placed to take advantage of can be ordered on-line, assuming this ever-increasing customer the visitor has the sobriety to type base. The same site indicates that in carefully all the required data. 88% of the Top 500 companies in To some, the site may look Ireland now have a web site. No like small beer compared to that information is provided with at www.mytaxi.co.uk/, where regard to Internet use on the part Internet users can browse in a Shop ‘til you drop: MyTaxi site covers a range of UK stores of law firms in Ireland. However, number of UK shops on-line and any visitors to Ireland’s web direc- fill their shopping trolley with a tory for lawyers, Legal-Island variety of goodies. Those who (www.legal-island.com), will have like to set their own price for a noticed the rapid increase in list- product have a place just for them ings. Only 18 months ago there at Priceline (www.priceline.com). were approximately 15 firms list- This allows the visitor to name ed; now there are three times that their own price for a variety of number, new additions monthly. products including airline tickets, One newcomer is Fergus hotel accommodation and mort- Goodbody, Solicitors (http:// gages. Priceline will then endeav- homepage.tinet.ie/~goodbody/). our to find a company who is pre- This site has a simple brochure- pared to sell at the figure quoted. style concept which is quick to The site has made headline news download and easy to read. in the USA introducing a new Probably costing just a few hun- concept of price-driven com- dred pounds to create and publish, merce. It has also made its owner, it is an ideal model for many small Jay Walker, a fortune of $5 bil- firms to follow. Fergus Goodbody: a solicitor newcomer to the Web lion. G Not quite so straightforward is the new site from the Irish Stock rent and historic prices and statis- attraction of the Internet, espe- Mark Reid is a freelance journal- Exchange tics previously available only on cially if it saves time-consuming ist with a particular interest in the (www.ise.ie) This provides a subscription. Sharing legal infor- jaunts to the law library in search Web. He can be contacted on comprehensive database of cur- mation has always been the big of statutes and caselaw. Acts of [email protected].

FORENSIC ACCOUNTING AND LITIGATION SUPPORT SERVICES

FORENSIC ACCOUNTING BRINGS A STRUCTURED APPROACH TO PREPARING AND REVIEWING FINANCIAL EVIDENCE. Applications include: * Personal injury and loss of earnings * Matrimonial proceedings * Breach of contract and commercial disputes * Negligence and professional malpractice * Insurance Claims * Fraud and white collar crime OUR DIRECTORS HAVE EXTENSIVE EXPERIENCE IN PREPARING REPORTS AND GIVING EVIDENCE IN COURT AS EXPERT WITNESSES. James Hyland and Company Forensic Accountants 26/28 South Terrace, Cork Carmichael House, Tel: (021) 319 200 Fax: (021) 319 300 60 Lower Baggot Street, Dublin 2. Tel: (01) 475 4640 Fax: (01) 475 4643 email: [email protected]

MAY 1999 LAW SOCIETY GAZETTE 53 Irish Stenographers Ltd

Director: Sheila Kavanagh Experts in Overnight Transcripts Specialists in Court Reporting Medical Cases / Arbitrations Conferences / Board Meetings Contact: Hillcrest House, Dargle Valley, Bray, Co. Wicklow. Telephone/Fax: (01) 286 2184 or 4b Arran Square, Dublin 7 Telephone: (01) 873 2378 PROFESSIONAL INFORMATION

Loughbeg, situate in the Electoral LOST LAND Division of Carrigaline, Barony of CERTIFICATES Kerrycurrihy, County of Cork; Co Cork Registration of Title Act, 1964 Regd owner: Charles Boyle, Upper ADVERTISING RATES An application has been received from Dore, Bunbeg, County Donegal; Advertising rates in the Professional information section are as follows: the registered owners mentioned in the Folio: 33510; Lands: Dore; Area: Lost land certificates – £30 plus 21% VAT (£36.30) schedule hereto for the issue of a land 14.025 acres of lands no 1 and 6.537 • Wills – £50 plus 21% VAT (£60.50) certificate as stated to have been lost or acres of lands no 2; Co Donegal • Lost title deeds – £50 plus 21% VAT (£60.50) inadvertently destroyed. A new certifi- Regd owner: Rosaleen McGonagle, 28 • Employment miscellaneous – £30 plus 21% VAT (£36.30) cate will be issued unless notification is Coshowen, Ferry Road, Derry, and • received in the registry within 28 days Neil McGonagle, 73 Creggan Road, HIGHLIGHT YOUR ADVERTISEMENT BY PUTTING A BOX AROUND IT – £25 EXTRA from the date of publication of this Derry, both formerly of Chrislagkeel, notice that the original certificate is in Burnfoot, Lifford, Co Donegal; All advertisements must be paid for prior to publication. Deadline for June existence and in the custody of some Folio: 27967; Lands: Crislaghkeel, Gazette: 21 May 1999. For further information, contact Catherine Kearney person other than the registered owner. Area: 11a 0r 9p of lands no 1 of or Louise Rose on 01 672 4800 Any such notification should state the Crislaghkeel and 171a 0r 23p of grounds on which the certificate is lands no 2 of Crislaghkeel (one undi- being held. vided seventh part); Co Donegal Regd owner: Thomas Cooney; Folio: Kilnamanagh Upper; Co Tipperary (Register of Titles), Central Office, Regd owner: Kieran Alexander and Ann 1992; Lands: Townland of Regd owner: Martin McGrath and Joan Land Registry, Chancery Street, Dublin Alexander; Folio: 60431L; Lands: Courtbrown and Barony of Mullins; Folio: 5686; Lands: (Published 5 May 1999) Property situate in the townland and Connello Lower; Co Limerick Townland of Ballymacmague and Knocklyon and Barony of Regd owner: Patrick Curtis, Barony of Decies-without-Drum; Regd owner: Paul and Lucia Sheahan, Uppercross; Co Dublin Knockumber, Navan, County Area: 9a 3r 35p; Co Waterford 67 Fairyfield, Parteen, Co Clare; Regd owner: Clonsilla Credit Union Meath; Folio: 9807; Lands: Regd owner: Nicholas McNamara Folio: 23060F; Lands: Townland of Limited; Folio: 13250; Lands: Commons; Area: 1,000 acres; Co (deceased); Folio: 11257; Lands: Carraun and Barony of Bunratty Property situate in the townland of Meath Grange, and Barony of Shelburne; Lower; Co Clare Blakestown and Barony of Regd owner: John Taylor (deceased); Co Wexford Regd owner: Annie Buckley; Folio: Castleknock; Co Dublin Folio: 1635; Lands: Garr and Regd owner: Anthony and Lorraine 51SD; Lands: small dwelling house Regd owner: John Sylvester O’Connor; Barony of Warrenstown; Co Offaly Dempsey; persons entitled to be reg- in Church Street, Town of Millstreet, Folio: 10334; Lands Townland of Regd owner: Edmund Carter istered as owners: Timothy and County of Cork; Co Cork Grange and Barony of Coolock; Co (deceased); Folio: 4133; Lands: Helen Corrigan; Folio: 9410F; Area: Regd owner: James O’Brien; Folio: Dublin Cloncanon and Barony of 0.436; Lands: Killagoley and Barony 27181; Lands: Part of the townland Regd owner: Martin O’Carroll, Maria Coolestown; Co Offaly of Ballaghton South, Co Wexford of Ballynacrusha, situate in the O’Carroll; Folio: 104236F; Lands: Regd owner: Eamon Duffy (deceased); Barony of Barrymore, County of Townland of Kilmacud East and Folio: 2821 and 8425; Lands: Cork; Co Cork Barony of Rathdown; Co Dublin Kincora and Endrim and Barony of WILLS Regd owner: Patrick Shanahan; Folio: Regd owner: Thomas M Clinton; Folio: Garrycastle; Co Offaly 46433; Lands: Part lands of 17058; Lands: Property situate in the Regd owner: John Shanahan Killuragh, situate in the Barony of Townland of Strifeland and Barony (deceased); Folio: 32407; Lands: Corr, Sheila, deceased, late of 11 Fermoy, County of Cork; Co Cork of Balrothery East; Co Dublin Fishmoyne and Barony of Lower Northbrook Avenue, North Regd owner: Liam and Margaret Regd owner: Mary Catherine Boyce; Eliogarty; Co Tipperary Strand, Dublin 3. Would any person O’Brien; Folio: 1103F; Lands: Part Folio: 31378L, Lands: Townland of Regd owner: Timothy Buckley having knowledge of a will of the above of the townland of Cloonlough, situ- Templeogue, Barony of Uppercross; (deceased); Folio: 7845; Lands: named deceased who died on 1 March ate in the Barony of Cloonlough and Co Dublin Knockanava and Barony of 1999, please contact Early & Baldwin, Clangibbon, County of Cork; Co Regd owner: William McDonagh, Solicitors, 27/28 Marino Mart, Cork Rooaun, Eyrecourt, Co Galway; DUBLIN SOLICITORS’ Fairview, Dublin 3, tel: 01 8333097, fax: 01 8332515. Ref MOD/4657 Regd owner: John Crowley (deceased); Folio: 8153; Co Galway PRACTICE OFFERS Folio: 16127; Lands: Part lands of Regd owner: James Loughman; Folio: 5320; Lands: Grangemellon and AGENCY WORK Flynn, Patrick, deceased, late of Barony of Kilkea Moone; Co IN NORTHERN Carstown Bridge, Drogheda, Co Louth. Kildare IRELAND ENGLISH AGENTS: Regd owner: Margaret Kelly; Folio: * All legal work undertaken Agency work undertaken 437; Lands: Cush and Barony of Offaly West; Co Kildare on an agency basis LOST A WILL? for Irish solicitors in * All communications to clients Regd owner: Thomas and Mary both litigation and through instructing solicitors TRY THE non-contentious matters – McCormack; Folio: 17548; Lands: * Consultations in Dublin if required REGISTRY OF WILLS Allenwood South, Barony of including legal aid. Contact: Séamus Connolly SERVICE Connell; Co Kildare Moran & Ryan, Solicitors, Regd owner: Daniel Phelan; Folio: Arran House, Fearon & Co, 16125 and 13402; Lands: 35/36 Arran Quay, Dublin 7. Solicitors, Knockania, Crossfield, Churchtown Tel: (01) 8725622 and Barony of Maryborough and Fax: (01) 8725404 Tuckey’s House, Upperwoods; Co Laois 8, Tuckey Street, Westminster House, E-mail: [email protected] CORK. Regd owner: George Burchill and 12 The Broadway, Woking, or Bank Building, Hill Street Bernadette Burchill; Folio: 6942F, Newry, County Down. Tel: +353 21 279225 Surrey GU21 5AU. Fax: +353 21 279226 Lands: Townland of Thomastown Tel: (0801693) 65311 Tel: 0044 1483 726272 Dx No: 2534 Cork Wst and Barony of Coshma; Co Fax: (0801693) 62096 Fax: 0044 1483 725807 E-mail: [email protected] Limerick

MAY 1999 LAW SOCIETY GAZETTE 55 PROFESSIONAL INFORMATION

Would any person having knowledge January 1999, please contact Philip require: 0044 181 889 6395, and The McAllen of a will of the above named deceased, Wm Bass & Co, Solicitors, 9 South 1) Law clerk/legal executive – experi- Building, 35 Dale End, Birmingham B4 who died on 9 July 1962, please con- Mall, Cork, tel: 021 270952, fax: 021 enced in conveyancing and probate. 7LN, tel: 0044 121 212 0000, fax: 0044 tact Rosalyn Kelly, solicitor, of 41 The 277882, e-mail: [email protected] Computer literate – Windows 95 121 233 1878 Heights, Melrose Park, Kinsealy, 2) Newly-qualified solicitor – County Dublin, tel: 01 8407563, fax: O’Dowd, Marguerite, late of 13 required primarily to work an assis- London solicitors will advise on UK 01 8904089 Ebenezer Terrace, Donore Avenue, in tant to litigation partner, experience matters and undertake agency work. the City of Dublin. Would any person in other areas and computer literacy All areas. Corporate/private clients. Kavanagh, Michael, deceased, late having knowledge of the whereabouts (Windows 95) desirable. Ellis & Fairbairn, 26 Old Brompton of 6 Asman House, Coebrook Road, of a will of the above named deceased Road, South Kensington, London SW7 Islington, London N1, and formerly of who died on 15 September 1983, please Apply in writing with full curriculum 3DL, tel: 0044 171 589 0141, fax: 0044 Scarnagh, Inch, Gorey, Co Wexford. contact Alphonsus Grogan & vitae to the Managing Partner, Thomas 171 225 3935 Would any person having knowledge Company, Solicitors, 33 Lower J Kelly & Son, Solicitors, 35 South of a will of the above named Ormond Quay, Dublin 1, tel: 01 Street, New Ross, County Wexford Agents – England and Wales. We are deceased, who died on 15 May 1998, 8726066. Ref RMT willing to act as agents for Irish solici- please contact Haughton McCarroll, tors in civil and criminal litigation. Solicitors, 2 Church Street, Co Smith, Marie, late of 35 Beaufield MISCELLANEOUS Contact: Olliers, Solicitors, Alderman Wicklow, tel: 0404 68344, fax: 0404 Park, Stillorgan, Co Dublin. Would any Downward House, 2/3 The Birtles, 68131 person having knowledge of a will of Civic Centre, Wythenshawe, the above named deceased who died on Northern Ireland solicitors providing Manchester M22 5RF, tel: 0044 161 Kavanagh, John Joseph, deceased, 10 March 1999, please contact Hipwell an efficient and comprehensive legal 437 0527, fax: 0044 161 437 3225 late of 48 Clare Street, Limerick. & Co, Solicitors, Church Street, service in all contentious/non-con- Would any person having knowledge Wicklow, tel: 0404 68320, fax: 0404 tentious matters. Dublin-based consul- Northern Ireland solicitors. Will of a will of the above named deceased 69910 tations and elsewhere. Fee apportion- advise and undertake NI-related mat- who died on or about 8 February 1999, ment. ML White, Solicitors, 43-45 ters. All areas corporate/private. please contact Breen Geary McCarthy Monaghan Street, Newry, County Agency or full referral of cases as pre- & Shee, Solicitors, ICC House, EMPLOYMENT Down, tel: 080 1693 68144, fax: 080 ferred. Consultations in Dublin or else- Charlotte Quay, Limerick, tel: 061 1693 60966 where if required. Fee sharing envis- 316933, fax: 061 416261 aged. Donnelly Neary & Donnelly, 1 Full-time receptionist/legal secretary Northern Ireland agents for all con- Downshire Road, Newry, Co Down, McCartan, Oliver G (otherwise required, Ormond Quay office. Salary tentious and non-contentious matters. tel: 080 1693 64611, fax: 080 1693 Gerry), late of 54 Ballyogan Road, negotiable. Reply to 01 6779408 Consultation in Dublin if required. Fee 67000. Contact K J Neary Carrickmines, Dublin 18, and of the sharing envisaged. Offices in Belfast, ESB. Would any person having knowl- Apprentice (post-professional Newry and Carrickfergus. Contact edge of an original will dated 19 course) required for city centre prac- Norville Connolly, D&E Fisher, Seven-day ordinary clean licence January 1977 of the above named tice. Replies to Hussey & O’Higgins, Solicitors, 8 Trevor Hill, Newry, tel: required. Contact O’Gorman deceased who died on 6 November Solicitors, 17 Northumberland Road, 080 1693 61616, fax: 080 1693 67712 Cunningham & Co, Solicitors, 1998, please contact Eoghan P Clear, Dublin 4. Ref: MF reference GC/DF/10/11(A), tel: Solicitors, Jefferson House, Eglinton Personal injury claims, family law, 074 24828 Road, Donnybrook, Dublin 4, tel: 01 Litigation solicitor and conveyanc- criminal law and property law in 2600988, fax: 01 2600989 ing/probate solicitor required by a England and Wales. We have specialist well-established, Mallow-based firm of departments in each of these areas, and Six-day publican’s licence for sale. O’Connor, Nora, deceased, late of 97 solicitors. These positions offer very offices in London (Wood Green and Please contact Connellan, Solicitors, 3 Hibernian Buildings, Albert Road, attractive experience, terms and Camden) and Birmingham. One of our Church Street, Longford, tel: 043 Cork. Would any person having prospects to suitable candidates. Please staff is in Ireland for one week in every 46440 knowledge of a will of the above send particulars of qualifications and month. Legal aid available to clients named deceased, who died on 25 experience to: James Byrne & Co, that qualify. Contact David Levene & Old original legal prints (VanityFair) Chartered Accountants, Bank Place, Company, Ashley House, 235-239 High of judges/barristers/solicitor general Mallow, Co Cork Road, Wood Green, London N22 4HF, etc, in black frames. Available due to Anguilla and Turks & England, tel: 0044 181 881 7777, fax: study redesign, tel: 01 2850115 Solicitor required for busy Galway Caicos Islands practice. Must have experience in con- Nil Tax Jurisdictions veyancing and probate. Attractive Corporate structures remuneration package available. Must for non-residents be available to commence work at ear- TITLE RESEARCH and non-domiciliaries liest date. Contact Foley & Mullery, Solicitors, 33 Woodquay, Galway, tel: YOUR PARTNER IN TRACING SAMUEL MC CLEERY 091 565136 MISSING BENEFICIARIES Attorney at Law and Solicitor PROBATE & Wanted experienced litigation lawyer SUCCESSION • Free professional assessments (solicitor or barrister) with knowledge GENEALOGY – • Range of cost structures Anguilla: of or an interest in media law. This is a Tel: 001 264 497 2527 W ORLDWIDE • Excellent success rate world- part-time position which would suit Fax: 001 264 497 5638 wide someone who wishes to work mainly Turks & Caicos Islands: from home; some weekend work would For more information or our detailed brochure Tel: 001 649 946 2818 also be required. Reply Box No 40 +44 171 549 Fax: 001 649 946 2819 Charter House, 2 Farringdon Road, London EC1M 3HN England E-mail: [email protected] Come to work in the Sunny South East Fax: +44 171 549 0949 DX: 53347 Clerkenwell Thomas J Kelly & Son, Solicitors,

56 LAW SOCIETY GAZETTE MAY 1999