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Law Society Gazette Law Gazette
Law Society Gazette • Vol 105 No 8 october 2011 Law Society of ireland cover october try1.indd 1
Law Society Gazette www.gazette.ie October 2011 president’s message 1 adapting to change
harles Darwin said: “It is not the strongest of the species maximum efficiency, that survives, nor the most intelligent that survives. It is the reducing the need for Cone that is most adaptable to change.” adjournments. This As I write this message a few days before the publication of the means looking at the Legal Services Bill, I believe we will have to remember the words of hours they work and Darwin in the weeks, months and years ahead. providing for active case A recent survey of the profession by the DSBA reveals the management so that following: lawyers meet deadlines 1) Conveyancing remains the main area of expertise for the in providing documents “Any measures that profession for as many as 83% of those surveyed, and preparing the case 2) Approximately two-thirds of solicitors have taken pay cuts, for hearing.” She also greatly weaken the 3) Nearly 40% of firms have made staff redundant, encouraged mediation independence of the legal 4) Debt collection is the area showing the largest increase in work, and other forms of 5) More than half of small firms (one to two fee earners) are alternative dispute profession are an attack pessimistic about the future, and resolution. on democracy itself” 6) Solicitors are looking at some quality standard and social-media marketing as a way of increasing business. Regulation of the profession The Legal Services Bill will also make major recommendations While there is little that we can do to change the economy, clearly regarding the regulation of the profession. Some members we must support each other and adapt as best we can to a changing have indicated that the Society, in regulating its own members, and hostile environment. I believe the profession should be to the has created a degree of disconnect between the Society and its fore in the development of mediation. members. It is my hope that consideration of the bill by the In this regard, I would like the Law Society to produce a public profession – whatever it may contain – will help to create a unity list of approved mediators, which has been requested by members of purpose within the profession and strengthen the bond between of the judiciary. I would also like the Society to prepare rules for members and the Society. However, if an outside body is appointed mediators, similar to the rules for arbitrators recently produced. to participate in any regulation of the profession, it is essential I am also hopeful the Society will have an active input into the that the Law Society plays a role in this body, because of the huge Mediation and Conciliation Bill, which is promised next year. expertise the Society has in this area. It is also imperative, if the Society has to make a financial contribution to this body, that it has Cost-cutting programme a major role in assessing the correct cost structure of such a body. In addition, in response to the DSBA survey, there were some There will be a special Council meeting on 7 October next demands that the Law Society would review costs in the Society. to consider the Society’s response to the bill. The minister, Alan In this regard, I am pleased to report that the Society has Shatter, has promised to meet with the Society to hear detailed undertaken a very stringent cost-cutting programme over the last comments on the bill around the middle of October. I would three years, resulting in savings to date of the order of €10 million. welcome the comments of any member on the bill after it is These savings continue to accrue to the benefit of the Society. published. However, it is only fair to observe that some of these savings come In relation to PII, I am pleased that the ‘common proposal form’ at great human cost in the form of redundancies. Such action is is now available on the Society’s website, and I earnestly hope that never easy to take, but, regrettably, it has been necessary to do so, the renewal process will be easier this year. and I would like to take this opportunity to extend my sympathies The Chinese symbol for ‘crisis’ is composed of two characters: to all those who have been adversely affected by these measures. one representing danger, and the other opportunity. Our The Legal Services Bill will primarily deal with litigation costs opportunity at this challenging time is to remind Minister Alan and the regulation of both branches of the profession. It is Shatter that it is in the public interest to have a strong, vibrant and ironic, however, that at a time when there has never been greater independent legal profession and Law Society. Any measures that competition between firms in quoting lower fees for new business, greatly weaken the independence of the legal profession are an legal costs will be more regulated. In the event, it appears likely attack on democracy itself. G that one of the main measures of litigation fees in the bill will be hourly rates, and that, to me, is not unreasonable – provided it does not encourage inefficiency – and that, at the same time, the bill allows flexibility to reward work commensurate with responsibility. As Carol Coulter has reported in The Irish Times recently: John Costello “The courts need to be examined to ensure they are working to President 2 contents Law Society Gazette www.gazette.ie October 2011
Law Society Gazette Volume 105, number 8 Subscriptions: €57
Editor: Mark McDermott FIIC Deputy editor: Dr Garrett O’Boyle Designer: Nuala Redmond Society Law Editorial secretaries: Catherine Kearney, GazetteGazette Valerie Farrell
Commercial advertising: Seán Ó hOisín, tel: 086 811 7116, RegularS email: [email protected] 1 President’s message 49 One to watch: Criminal Justice Act 2011 For professional notice rates (wills, title deeds, 50 Regulation: Solicitors Disciplinary employment, miscellaneous), see page 59. 5 News Tribunal 54 Eurlegal: European jurisdiction rules and Published at Blackhall Place, Dublin 7, tel: 01 672 4828, fax: 01 672 4877. 14 Analysis arbitration; recent developments in Email: [email protected] 14 News feature: Frank Daly criticises european law Website: www.gazette.ie the lack of progress in solicitor cases 59 Professional notices Printing: Turner’s Printing Company Ltd, referred to the DPP, and urges the Longford minister to act 16 Human rights watch: Capacity and the 60 Recruitment advertising Editorial board: Michael Kealey (chairman), right to refuse medical treatment Mark McDermott (secretary), Mairéad Cashman, 64 Captain’s blawg Paul Egan, Richard Hammond, Mary Keane, Aisling Kelly, Tracy Lyne, Patrick J McGonagle, 19 Comment Ken Murphy, Andrew Sheridan 19 Letters 21 Viewpoint: Was the system of solicitors’ The Law Society of Ireland can accept undertakings ever a good idea? no responsibility for the accuracy of contributed articles or statements appearing in this magazine, and any views or opinions 42 Obituary expressed are not necessarily those of the Judge Con Murphy Law Society’s Council, save where otherwise indicated. No responsibility for loss or distress 43 People and places occasioned to any person acting or refraining from acting as a result of the material in 44 Books this publication can be accepted by the 44 Reading room: Answers to the library’s authors, contributors, editor or publishers. The editor reserves the right to make publishing frequently asked questions are now decisions on any advertisement or editorial available on lawsociety.ie article submitted to this magazine, and to refuse publication or to edit any editorial 45 Briefing material as seems appropriate to him. 45 Council report Professional legal advice should always be 46 Practice notes sought in relation to any specific matter. 47 Legislation update: 23 July – 9 September 64 FSC independently certified wood and paper products used by the Law Society Gazette come from ecologically managed forests. Visit: www.fsc.org
PEFC certifies that wood and paper products used by the Law Society Gazette are sourced by suppliers from sustainable, managed forests. Visit: www.pefc.org
The Law Society Gazette is a full participating member of the Press Council of Ireland and M supports the Office of the Press Ombudsman. R e s c ne This scheme, in addition to defending the free- ycl azi e Mag dom of the press, offers readers a quick, fair and free method of dealing with complaints that they may have in relation to articles that appear on our pages. To contact the Office of the Press Ombudsman go to: www.pressom- budsman.ie or www.presscouncil.ie. 43 43 Law Society Gazette www.gazette.ie October 2011 contents 3
26 14
Great white hope ou’re fired The new ‘white-collar y crime act’ is a welcome Spelling out the ABCs
Law Society Gazette • Vol 105 No 8 step in the right direction blues with a feeling of redundancy for Was the system of employers and workers solicitors’ undertakings ever a good idea?
€3.75 october 2011 Law Society GazetteLaw cover story 22 Spaghetti junction october 2011 Road traffic law can be something of a spaghetti junction. While the new Road Traffic Act 2011 addresses many previous N: problems, it renders some sections of Ghetti juNctio Spa YEAR BUSINESS earlier acts ‘stuck at the roundabout’. THE TO OF Law Society of ireland Getting your teeth into the BUSINESS MAGAZINE Robert Pierse switches lanes 14:49 Road Traffic Act 2011 27/09/2011
1 cover october try1.indd 34 features 26 White heat 34 Here be dragons... The Criminal Justice Act 2011 gives The PRA’s digital mapping project new powers to the gardaí, introduces successfully concludes one of the protection for whistleblowers, and will largest and most complex technology have major ramifications for solicitor projects undertaken by the Irish access. Shelley Horan breaks out the Government in recent years. white-collar starch John Deeney, John O’Sullivan and Shay Arthur point the way 30 The ABC of redundancy The EAT’s 2010 annual report indicates 38 Keep taking the tablets that 58% of referrals consisted of claims Tablets like the iPad are changing the under the Redundancy Payments Acts and way lawyers work. Ian O’Flaherty says the Unfair Dismissals Acts. Alan Haugh that practising law on an iPad might spells it out be just what the doctor ordered 54
HOW TO REACH US: Law Society Gazette, Blackhall Place, Dublin 7. Get more at lawsociety.ie Tel: 01 672 4828, fax: 01 672 4877, email: [email protected] Gazette readers can access back issues of the magazine as far back as Jan/Feb 1997, right up PROFESSIONAL notices: send small advert details, with payment, to: Gazette to the current issue at lawsociety.ie. Office, Blackhall Place, Dublin 7, tel: 01 672 4828, or email: [email protected]. You can also check out: All cheques should be made payable to: Law Society of Ireland. • Current news • Forthcoming events, including the Annual COMMERCIAL ADVERTISING: contact Seán Ó hOisín, 10 Arran Road, Dublin 9, Human Rights Conference at Blackhall Place tel: 01 837 5018, fax: 884 4626, mobile: 086 811 7116, email: [email protected] on 22 October HAVE YOU MOVED? Members of the profession should send change-of-address details to: • Employment opportunities • The latest CPD courses IT Section, Blackhall Place, Dublin 7, or to: [email protected] … as well as lots of other useful information EARLY BIRD OFFER
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Order by Order by 25 1 November November and SAVE €50. and SAVE €85. €335Order (€385 by after €340Order (€425 by 25after 1 November 25November November and SAVE2011) €50. and SAVE2011) €85. €335Order (€385 by after €340Order (€425 by 25after €3351 November (€385 after €340November (€425 after 1 November 25 November and SAVE2011) €50. and SAVE2011) €85. €335 (€3852011) after €340 2011)(€425 after 1 November 25 November 2011) 2011) THE LAW OF CREDIT KEATING ON PROBATE THE& SECURITY LAW OF CREDIT KEATING ON MARY DONNELLY 4TH EDITION &THE SECURITY LAW OF CREDIT DRPROBATEKEATING ALBERT KEATING ON Important topics covered in this new MARY DONNELLY 4TH EDITION book& SECURITY include: ThePROBATE 4th edition of Keating on Probate DR ALBERT KEATING Important•MARY Legal andDONNELLY topics policy coveredquestions in in this respect new of incorporates4TH EDITION all the radical legislative book include: changes in recent years. bookcredit include: and security in modern Ireland TheDR 4thALBERT edition KEATING of Keating on Probate •Important The credit topics crisis and covered efforts in at this containment new • Legal and policy questions in respect of incorporates• Understand allthe the new radical complexities legislative that •book creditInternational, include: and security European in modern and Irish Ireland regulation changesTheare 4th introduced editionin recent byof years.Keatingthe creation on Probateof the • Theof credit credit providers crisis and efforts at containment incorporatesCivil Partnership all the and radical Certain legislative Rights •• TheLegal credit and crisispolicy and questions efforts inat respectcontainment of • Understand the new complexities that • Legalcredit aspectsand security of loans in modern and credit Ireland provision changesand Obligations in recent ofyears. Cohabitants Act 2010 • International, European and Irish regulation are introduced by the creation of the • Review the succession rights of spouses, •• ofAllThe credit forms credit providers of crisis security and andefforts quasi-security at containment • CivilUnderstand Partnership the new and complexities Certain Rights that andcivil Obligationspartners, cohabitants of Cohabitants and children Act 2010 •• LegalEnforcementInternational, aspects of Europeanof security loans and and credit ofIrish personal provisionregulation debt andare introduced Obligations by of the Cohabitants creation of theAct 2010 • Gain an in-depth insight into the changes • Allof credit forms providers of security and quasi-security • ReviewCivil Partnership the succession and Certain rights of Rights spouses, Publishing:• All forms of security and quasi-securityOctober 2011 introduced by the Land and Conveyancing • Legal aspects of loans and credit provision civiland partners,Obligations cohabitants of Cohabitants and children Act 2010 •ISBN: Enforcement of security and of 978personal 1 858 00636debt 9 Law Reform Act 2009 • All forms of security and quasi-security •• GainReview an thein-depth succession insight rights into the of changesspouses, Publishing: October 2011 Publishing:introducedcivil partners, by the cohabitants Land and andConveyancing childrenDecember 2011 ISBN:• Enforcement of security and of 978personal 1 858 00636debt 9 ISBN: 978 1 858 00636 9 ISBN:• LawGain Reforman in-depth Act 2009insight into the978 changes 1 858 00667 3 Publishing: October 2011 introduced by the Land and Conveyancing Publishing: December 2011 ISBN: 978 1 858 00636 9 Publishing:Law Reform Act 2009 December 2011 PLACE YOUR ORDER TODAY ISBN: 978 1 858 00667 3 VISIT www.roundhall.ie Publishing: December 2011 PLACEEMAIL [email protected] YOUR ORDER TODAY ISBN: 978 1 858 00667 3 CALL 1 800 937982 (IRE) 0845 600 9355 (UK) +44 (0)1264 388570 (INT) VISIT www.roundhall.ie EMAIL PLACE [email protected] YOUR REFERENCE ORDER 0742601ATODAY CALLVISIT 1www.roundhall.ie 800 937982 (IRE) 0845 600 9355 (UK) +44 (0)1264 388570 (INT) EMAIL [email protected] REFERENCE 0742601A CALL 1 800 937982 (IRE) 0845 600 9355 (UK) +44 (0)1264 388570 (INT) QUOTING REFERENCE 0742601A ROUND HALL
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ROUND HALL EARLY BIRD OFFER Law Society Gazette www.gazette.ie October 2011 news 5
New In News this month... Two firms win managing Lexcel award TWO ESSENTIAL TITLES 7 Diploma Programme to 9 Life outside legal practice partner pioneer new tablet course 11 New Companies Bill in the Lexcel, the law management 8 Finance offer for members spotlight standard of the Law Society of FROM ROUND HALL 9 The future of legal services 11 Proposed bill on cybercrime England and Wales, has announced that two Dublin law firms have recently secured the accolade. The first was O’Rourke Reid in Mount Street Crescent, followed by Dillon Walkers runs ‘A day in the life Solicitors in Rathfarnham. Both firms underwent a rigorous assessment of Dublin’ art competition procedure in order to secure the recognised standard. Lexcel is now planning a series of events in Ireland later in the year to help more firms understand the benefits of the award. The quality Order by Order by 25 Arthur Cox has announced Brian standard requires law firms and in- 1 November November O’Gorman (42) as the firm’s next house legal departments to prove and SAVE €50. and SAVE €85. managing partner. With effect from best practice in how they operate, €335 (€385 after €340 (€425 after 1 November, Brian will succeed via document reviews, interviews 1 November 25 November Pádraig Ó Ríordáin, who will and file checks. Principal at 2011) 2011) resume full-time client work, having Dillon Solicitors, Brendan Dillon, completed his two terms at the commented: “The Lexcel process is helm. Brian is a corporate partner at challenging but extremely rewarding. the law firm and is a member of its We are confident that we have management committee. A graduate procedures relating to client care, of Trinity College, he joined the firm risk, organisation and the charging of fees that are compliant with best THE LAW OF CREDIT KEATING ON in 1999, having trained and worked Rasher will judge ‘A day in the life of Dublin’ art competition at a London law firm, where he practice.” A new version of the standard, to PROBATE became a partner a year later. Global law firm Walkers, partner Vicki Hazelden. & SECURITY be called Lexcel v5, will be launched which has offices in Dublin, has Generous cash prizes worth 4TH EDITION internationally in late October. MARY DONNELLY organised an art competition, a total of €14,000 are on offer DR ALBERT KEATING open to second-level students in to the winning schools in two Important topics covered in this new London Dublin city and county. categories – for students ‘up to book include: The 4th edition of Keating on Probate autumn ball Titled ‘A day in the life of Junior Cert level’, and ‘up to incorporates all the radical legislative Dublin’, students are invited Leaving Cert’. The winning • Legal and policy questions in respect of The Irish Solicitors’ Bar to submit their impressions of entries will hang permanently in credit and security in modern Ireland changes in recent years. Association, London, will what Dublin means to them. Walkers’ Dublin office. nd • The credit crisis and efforts at containment • Understand the new complexities that hold its 22 annual charity The closing date is 12 October. The competition is part of the • International, European and Irish regulation are introduced by the creation of the ball in Claridge’s on Friday The judging panel consists of Walkers Corporate and Social 11 November 2011, in aid of Rasher, one of Ireland’s best- Responsibility programme, of credit providers Civil Partnership and Certain Rights Barretstown, the children’s known contemporary artists, which supports charitable causes and Obligations of Cohabitants Act 2010 • Legal aspects of loans and credit provision charity. Dublin artist Frances Coughlan, and local initiatives in the • All forms of security and quasi-security • Review the succession rights of spouses, The evening will consist of and Walkers Ireland managing communities in which it is based. Staff from Dillon Solicitors civil partners, cohabitants and children champagne reception, three- • Enforcement of security and of personal debt • Gain an in-depth insight into the changes course dinner with coffee and petits fours, dancing, charity Publishing: October 2011 introduced by the Land and Conveyancing auction and midnight raffle. Third international win for McCann Fitzgerald ISBN: 978 1 858 00636 9 Law Reform Act 2009 Tickets cost Stg £175 each or McCann FitzGerald has collected its third international Publishing: December 2011 Stg £1,750 for a table of ten. A award in four months, this time ISBN: 978 1 858 00667 3 reduced-price ticket of £130 for early, non-corporate bookings at the Euromoney Legal Media received before 15 October is Group – European Women in PLACE YOUR ORDER TODAY also available. Business Law awards. Susan VISIT www.roundhall.ie For further information and O’Connell, partner in personal all queries, contact: Cliona estate and tax planning, was EMAIL [email protected] O’Tuama (president, Irish named ‘Best in Trust & Estates’, CALL 1 800 937982 (IRE) 0845 600 9355 (UK) +44 (0)1264 388570 (INT) Solicitors’ Bar Association), tel: seen here with McCann QUOTING REFERENCE 0742601A 0044 (0)20 7583 5131, email: FitzGerald chairman, John [email protected]. John Cronin and Susan O’Connell Cronin.
ROUND HALL Law Society of Ireland Diploma Programme Autumn 2011 Legal Education for the Real World
We’re ready for Autumn. Are you? Get ready for Autumn and sign up to one of our diploma courses. The choice and range of courses on offer has never been wider, and includes three new courses, namely a Diploma in In-House Practice and a Diploma in European Union Law and a Certifi cate in Commercial Contracts.
All diploma courses are now webcast online.
The full Autumn 2011 Programme is as follows:
Diploma Courses Start Date Diploma in Commercial Litigation Wednesday 05 October 2011 Diploma in Finance Law Thursday 06 October 2011 Diploma in Corporate Law & Governance Monday 10 October 2011 Diploma in In-House Practice (New) Tuesday 11 October 2011 Diploma in Family Law Wednesday 19 October 2011 Diploma in European Union Law (New) Saturday 22 October 2011 Diploma in Trust & Estate Planning (STEP) Saturday 12 November 2011
Certif icate Courses Start Date Certifi cate in Trust & Estate Planning (STEP) (New) Saturday 10 September 2011 Certifi cate in Employment Law Advocacy & Skills (New) Saturday 24 September 2011 Certifi cate in Capacity, Mental Health & the Law Tuesday 27 September 2011 Certifi cate in Commercial Contracts – iPad Mobile Learning Pilot Saturday 05 November 2011 Project* Certifi cate in Criminal Litigation Saturday 19 November 2011 Legal Language Courses Start Date Certifi cate in Legal German Tuesday 20 September 2011 Diploma in Legal French Wednesday 12 October 2011
The diploma fee is €2,400/€2,150 and the fee for certifi cates is €1,160. * €1,480 - Fee includes free iPad 2. A 20% discount applies to applications received from unemployed solicitors. QR code link Early booking is advised as places on some courses are limited. to website Full details of the above courses are available on the web www.lawsociety.ie/diplomas or by contacting a member of the Diploma Team at [email protected] or Tel. 01 672 4802.
Diploma ad Gazette Oct 2011 full page.indd 1 16/09/2011 14:52 Law Society Gazette www.gazette.ie October 2011 news 7 Get your pension in place New tablet-based course before October tax deadline P ic : L ensmen hotographic A gency The deadline for final tax contributions up to a maximum payment for the 2010 tax year of 40% of your income, with under the self-assessment an income cap of €115,000 for system is fast approaching. 2010. The final payment is due on or The percentage limits that before 31 October. However, you can contribute for tax relief those filing their returns online purposes are as follows: will have an extension to the middle of November. Up to age 30 15% You can reduce your liability From 30 to 39 20% by making a contribution to a From 40 to 49 25% personal pension arrangement From 50 to 54 30% before the applicable deadline. From 55 to 59 35% Launching the Diploma Programme’s new course were (l to r): Rory O’Boyle, The Revenue Commissioners Age 60 and over 40% diploma coordinator; Felim O’Caoimh, partner, McDowell Purcell; Freda Grealy, will allow you to make diploma manager, Law Society of Ireland; Peter O’Neill, senior associate, Mason, Hayes & Curran; Stuart Grimes from CompuB; Garret Flynn BL; Noel Hayes from The Law Society Retirement CompuB and Mark Rasdale, partner, A&L Goodbody Trust Scheme is an ideal vehicle for making this contribution. It This autumn, the Law Society’s lectures will be released online to offers a range of different funds Diploma Programme is piloting a participants’ tablets. In addition, to take account of individual Certificate in Commercial Contracts, students will get to grips with dealing appetites for risk, from cash to utilising the advantages of one of the online with documents and will equity funds. latest tablet devices. All participants engage in professional transactions. The scheme is administered will receive an iPad to take home Online participation, via tablet, will by Mercer, and the investment with them. Numbers are limited to 24 be an integral part of this course. management is undertaken participants. This pilot project begins on by managers who are global The introductory session will Saturday 5 November, and will cost leaders in their sectors, many demonstrate the educational and €1,480 (including 3G-enabled iPad). of whom are not generally time-management advantages of The course will appeal both to new available in the pension market tablets, enabling those on the course and seasoned practitioners seeking here in Ireland. to access material anytime, any to hone their commercial and Should you wish to discuss place. This ‘blended-learning’ course technological skills. this matter, contact Tom will contain a mixture of on-site and For further information, contact Kennedy of Mercer on 01 411 online sessions, with an emphasis on Freda Grealy (diploma manager) at 8480, or 087 250 1181, or email hands-on and experiential learning. [email protected], or tel: 01 [email protected]. Course materials and webcast 672 4802.
Publication of advertisements in this section is on a fee basis and does not represent an endorsement by the Law Society of Ireland
Regulated by the Solicitors Regulation Authority of England and Wales
8 news Law Society Gazette www.gazette.ie October 2011 Helping me, helping you – Society support services
Four separate sources of help for ensure that an appropriate initial their wives, husbands, widows, those dealing with professional response is sent. widowers, families and immediate or personal issues are available to The list of panel members is dependents who are in need. the solicitors’ profession, writes available in the Law Directory, on The service has available the support services executive Louise the members’ area of the Society’s part-time services of a professional Campbell. website (www.lawsociety.ie) in the social worker who, in appropriate Guidance and Ethics Committee’s cases, can advise on State LawCare section, or on request from Anne entitlements, including sickness Since 1 January 2008, the Law Collins, Law Society of Ireland, benefit, and who can deal with Society has funded the provision Blackhall Place, Dublin 7; tel: specific problems. of LawCare in Ireland. LawCare 01 879 8720, email: a.collins@ For information on the offers a free and completely the Law Society or the Solicitors’ lawsociety.ie. assistance provided by the confidential advisory service for Disciplinary Tribunal, or of association, how to make an lawyers, trainee lawyers, their other difficulties relating to your Solicitors’ Benevolent Association application for assistance, and immediate families and their staff practice, you may wish to contact The Solicitors’ Benevolent for the necessary application to help deal with health issues and one of the solicitors on the ‘Panel Association is a voluntary forms, contact Geraldine Pearse, related emotional problems such to Assist Solicitors in Difficulty charitable body that assists Solicitors’ Benevolent Association as stress, depression, drug and/ with the Law Society’, which will members, former members of the Secretary, 73 Park Avenue, or alcohol dependency, eating give you the assistance required to solicitors’ profession in Ireland, Dublin 4; tel: 01 283 9528. disorders, bullying, bereavement and gambling, among others. LawCare offers its service through a freephone helpline AIB’s finance offer geared to members (1800 991 801), which operates annual payment(s) over a term of 365 days a year, Monday to up to 11 months, thereby improving Friday, 9am to 7.30pm and business cash flow. weekends/British public holidays Repayments vary, depending on from 10am to 4pm. LawCare the amount borrowed (see panel). can also be contacted by email: If a member wishes to obtain [email protected]. details of cost of credit, monthly More information about repayment and APR for any LawCare, including a range of particular amount, they can do free information materials, is so before submitting a finance available on their website, www. application by contacting AIB’s lawcare.ie. Customer Services Centre on 1890 47 47 47. ‘Consult a Colleague’ helpline If you are an AIB customer The ‘Consult a Colleague’ already and wish to apply for helpline is available to finance, you should contact the confidentially assist every relationship manager at your member of the profession, AIB branch. If you are not an AIB nationwide, with any problem – Members who wish to apply for products offered by Allied Irish customer and you wish to apply for whether personal or professional funding for payment of preliminary Banks plc. finance, contact your nearest AIB – free of charge. While the Law tax, pension contributions, Known as ‘insurance premium branch and make an application Society provides funding for the professional indemnity insurance finance and prompt pay finance’, through a relationship manager. service, it is operated completely and practising certificate(s) could these will enable members or their AIB is one option available to independently by the Dublin consider the short-term finance firms to spread the cost of any large members; however, each member Solicitors’ Bar Association. should shop around to obtain the Those calling the helpline (01 repayment examples* best finance available for his/her 284 8484) will hear a recorded own individual circumstances. Any message, giving the contact Loan APR Term in Monthly Total cost member who would like to obtain details of the solicitor volunteers amount months repayment of credit independent financial guidance on call that week. The volunteers €10,000 13.6% 11 €961.93 €644.72 on alternatives can contact Liz are all solicitors of considerable €20,000 11.18% 11 €1,909 €1,062.49 McGrath (financial advisor), tel: experience. Callers can remain €30,000 9.86% 11 €2,849.84 €1,411.73 087 131 6906. anonymous throughout. €50,000 8.56% 11 €4,729.33 €2,086.12 The Law Society of Ireland is *Above rates are correct as at 19 September 2011, but rates/ not an agent, broker or financial Panel to Assist Solicitors in repayments can vary. The total cost of credit includes a documentation institution and cannot accept any Difficulty with the Law Society fee of €63.49, payable with the first monthly instalment. Minimum responsibility whatsoever for any If you have been notified of a finance is €5,000. financial decisions made on foot of complaint made against you to this article. Law Society Gazette www.gazette.ie October 2011 news 9 The future of legal services outlaws Life outside legal practice DONNA ‘do something you love and you McCARTHY will never have to work a day in Wealth your life’. Gerard, a long-time lover management of wine, had a health scare several As relation- years ago. ship manager As he waited for the results of with Royal medical tests, he promised himself Bank Canada to work at something he really Wealth loved, if the news was good. The Management, Donna McCarthy news proved positive and 64 Wine is based in the Cayman Islands was born. Richard and provides integrated wealth As well as running his wine Susskind management services to high and business, Gerard is also studying ultra-high net-worth individuals – to become a Master of Wine and The Institute of Legal Accountants commoditisation of legal service, with specific expertise in trusts and is now more than half-way through of Ireland (ILAI) held its annual • The growing impact of fiduciary services. the seven-year course. conference, titled ‘The future information technology, and Clients include Asian shipping of legal services’ at the Law • The liberalisation of the legal families, Russian oil magnates, CAROL-ANNE Society on 9 September, writes market. owners of global consumer product BERGIN Paul O’Connell (PJ O’Driscoll companies and international Ryanair & Sons, Solicitors, South Mall, He argued that one key to the property developers. Carol-Anne Cork). Speakers included Prof future is to decompose legal work Donna trained in a general did her Richard Susskind, economist Jim into its constituent parts and practice in Skibbereen and traineeship Power, Ian O’Flaherty of Saurian to source each part in the most qualified in 2008. However, while in a general Litigation Support Limited efficient way. He also spoke about doing her PPC, she also completed practice in (Ireland) and Ivan Gomez of the growing impact of legal process a Diploma in Trust and Estate Leitrim. On Microsoft Ireland. outsourcing, the use of agency Planning with the Society and qualification in 2008, she joined Jim Power spoke about the Irish lawyers, the role of paralegals, and STEP Ireland. a small Dublin practice and economy and how its financial the systematisation of routine and The diploma provided early began a Diploma in Commercial system is currently going through repetitive legal work. For lawyers full membership of STEP, which Litigation at the Law Society’s a period of unprecedented flux who are willing to adapt, he claimed was of huge benefit in seeking an Education Centre in her spare and change. Jim predicted that, that the future holds exciting internationally focused job after time. when normality returns, the Irish new professional and commercial qualifying. In September 2009, she joined economic and financial landscape opportunities. Donna has enjoyed a number of Ryanair and, since then, has co- will look very different. Business The final speaker of the day was quick promotions in the last three ordinated wide-ranging litigation levels will be lower than in the Ian O’Flaherty of Saurian Litigation years and has gained wide expertise work there. Disgruntled passengers past, regulation will be intense, and Support Limited (Ireland). Ian in the administration of offshore and other parties sue the airline transparency and accountability was born and raised in Dublin and trusts and companies. Her work in jurisdictions across Europe, will dominate the landscape. currently lives in Miami, Florida, involves frequent travel to Canada, and defending these actions is all Ivan Gomez of Microsoft with his wife and three children. the US and Europe. managed in Dublin. Ireland is currently the senior Ian presented on the hot topic of Carol-Anne works directly with director for online services in practising law with an iPad (see GERARD lawyers in over 15 European Microsoft’s European Operations page 38). MAGUIRE countries, instructing them on Centre. Ivan discussed cloud His presentation was an overview 64 Wine individual cases. She also attends computing, Microsoft’s latest of business and productivity apps Few shops any court hearings considered offerings and the benefits and in use by lawyers. He covered get as many particularly important. challenges of the cloud. Microsoft apps for legal research, remote glowing The year 2010 was especially has almost 5,000 cloud customers access, document reviewing, reviews as challenging due to the volcanic ash in Ireland at present. Questions editing and presentations. He 64 Wine in crisis. This was quickly followed by from the floor focused on demonstrated his own app Glasthule, mass general and air-traffic-control confidentiality, data protection and TrialPad, which he successfully beside Dun Laoghaire in Co strikes in Spain and France. reliability. designed, developed and brought to Dublin. Wine is displayed in the Before year-end, Ireland and The keynote speaker was market. It’s currently available for front section, there is an artisan much of Europe experienced Richard Susskind, who spoke purchase from the Apple store (for food section in the middle, and the worst weather conditions about: approximately €65). He is working a café and fine wine cellar at the in decades. These problems all • The drivers of change in the currently on another app that is due back. dramatically added to Carol-Anne’s legal sector – the demand for for release in November 2011. The owner is solicitor Gerard workload, but, as they say, variety is ‘more for less’, For further details on the Maguire, who is living the mantra the spice of life! • The shift toward the conference, visit: www.ilai.ie. 10 news Law Society Gazette www.gazette.ie October 2011 Society hits back at NCC’s ‘flawed and unreliable’ claims The Law Society has lashed on responses from a “paltry is Britain. Although the table out at renewed claims made in and statistically insignificant” on page 73 of the report does the media by the chairman of 18 legal firms out of a total of show the total costs of contract the National Competitiveness 2,220 solicitors’ practices in the enforcement in Ireland to be Council that legal costs in State. Such a small sample size – slightly higher than in Britain, it Ireland remain uncompetitive. coupled with the fact that two of should be noted that the element Director general Ken Murphy the survey’s five questions related recorded for ‘attorney fees’ is said that the Society had already to very minor work areas such as higher in Britain than in Ireland. demonstrated there was no ‘patent work’ and ‘notarial work’ This is what would be expected proper evidential basis for such – was a “completely inadequate by anyone with experience of claims, which he described as basis for conclusions”, he said. litigating, or of legal advice or “flawed and unreliable”. “Buried in footnotes in the transaction work generally, in The council’s report, entitled report are highly significant both Dublin and London. The Costs of Doing Business in Ireland qualifications about the reliability Director general Ken Murphy: “Legal Society’s own experience is that 2011, cited Central Statistics of the research on legal costs,” fees have been falling very substantially” the cost of litigating in London Office (CSO) data, which Murphy continued. “As the is significantly higher than here. appeared to suggest that legal World Bank was quoted as apples with oranges. The level In fact, Murphy concluded services prices have risen by 12% saying in relation to the same of work required to be done in his response to the Comp- since 2006, and World Bank research last year, ‘It is difficult by lawyers varies greatly in etitiveness Council, which was figures suggesting that legal to accurately compare legal the legal processes of different published on the business page costs in Ireland were higher than costs across countries due to jurisdictions.” of The Irish Times: “This is a in many other countries. differences in national legal market where people cannot systems’.” Plummeting legal fees overcharge. Legal fees have Statistically insignificant In fact, according to Murphy, According to the director been falling very substantially Murphy, who has been in contact “Comparing legal costs in general, the only close in response to tendering and with the CSO in relation to this common law systems and in comparator, in terms of legal intense downward pressure from data, points out that it was based civil law systems is comparing system for Ireland in Europe, clients.”
Date for your diary
Law Society Annual Conference 13th/14th April 2012
Castlemartyr Resort Hotel Co Cork Law Society Gazette www.gazette.ie October 2011 news 11 Conference puts new Companies Bill in the spotlight The Registrar of Companies, parliamentary procedure Helen Dixon, explained at a applicable to an administrative recent conference held in Dublin consolidation and restatement. Castle how the Companies The conference also explored Registration Office (CRO) intends new private company types to implement the four conversion and the options for conversion. options for existing private Sinead Kelly of A&L Goodbody companies after enactment of described the features of the new- the recently published Companies form CLS and the alternative Bill, writes David Mangan (Mason, Designated Activity Company. Hayes & Curran). The CRO will Following an explanation by provide companies with a series the registrar of the CRO’s new of online options for filing new- registration procedures, Gordon form company constitutions and Duffy BL spoke about the taking the other steps necessary conversion options for private to convert into one of the new At the recent conference at Dublin Castle were (l to r): Declan Murphy BL, Paul companies, including the ‘default company types. Egan, Sinead Kelly, Dr Deirdre Ahern, Helen Dixon, David Mangan and Gordon strategy’ of taking no action, by The conference, which is Duffy BL which an existing private company the first organised by the newly will be deemed at the end of the established Irish Corporate Law Company Law Review Group in the CLRG reports published transition period to have adopted Forum, gathered 12 experts in 2007. They set out the full since 2001, and the General a new-form constitution in the to present their views on the company law rulebook for the Scheme published in 2007. Declan standard form. Companies Bill and its implications new-form Company Limited by Murphy explained that, with a The new bill sets out the duties for private companies. The first Shares (CLS). couple of exceptions, the entire of directors in statute for the first group of parts of the new bill was Two members of the Company body of the Companies Acts would time. Dr Ailbhe O’Neill, barrister published by the Department of Law Review Group (CLRG), be repealed and consolidated in and adjunct lecturer in law at Jobs, Enterprise and Innovation Paul Egan of Mason Hayes and the bill. He estimated that the Trinity College, spoke on the on 30 May 2011. These parts Curran and Declan Murphy BL, bill would be enacted in 2015 at refinements made by the bill to correspond to ‘Pillar A’ of the set out the background to the the earliest, on the basis that it the appointment of directors and General Scheme, published by the bill. Paul spoke about its origins did not qualify for the expedited secretaries.
Government prepares for the attack of the Cybermen The Government is preparing a bill Ireland, as it merely involves people on cybercrime that will bring Irish accessing a website, albeit on a law into line with the European massive scale. framework laid down in 2001, Mr Whelan said it would be hard according to Minister for Justice for a country like Ireland to position Alan Shatter. Minister Shatter was itself as a digital hub if it has not speaking at the summer launch of ratified an internationally recognised a new project in UCD that aims to convention on cybercrime. He develop a network of cybercrime pointed out that the framework it centres for excellence in Europe. sets out has even been adopted Ireland signed up to the Council of by the USA and others outside of Europe’s Convention on Cybercrime Europe, showing how internationally in early 2002 but, as of yet, has accepted it is. failed to ratify it into Irish law. According to security consultant The EU is now also developing a Brian Honan, the failure of Ireland directive on cybercrime, which to adopt the framework will also Minister Shatter said any upcoming because the framework on cybercrime arguments that could be made if a make extradition requests harder, Irish bill would take account of. was supposed to be implemented by prosecution was brought, because something that could be critical According to Darius Whelan, member states by 2007.” there are various loopholes in given the international nature of lecturer in the law department of According to Mr Whelan, the them,” he said. cybercrime. University College Cork, an update Criminal Damages Act 1991 and the An example he gave was a ‘denial- “If there’s no matching crime on in the country’s legislation in the Criminal Theft and Fraud Offenses of-service attack’, where hackers use the statute books in both nations, area of cybercrime is badly needed. Act 2001 are the only existing tools to access a website in huge then extradition is not going to Castlemartyr Resort Hotel “The Government has a Cybercrime pieces of legislation that might cover volumes, forcing its servers to crash. work,” he said. “The convention Bill on its agenda, but publication cybercrimes. According to Mr Whelan, there is gives uniformity across jurisdictions Co Cork keeps moving back,” he said. “We’re “They’re obviously quite dated an argument to be made that says and makes it easier for police forces already probably in breach of EU law and there are lots of interesting that this is not currently illegal in to cooperate.” Farrell Grant Sparks Audit · Tax · Advisory Ensure your tax advice is based on the most up-to-date information Looking for Forensic Accounting Irish Tax Series 2011 Publications and Litigation Support Services? Benefi t from expert authors’ Over 200,000 pages, > > At RSM Farrell Grant Sparks, our experienced, trusted and professional and editors’ insights fully searchable team provides independent expert forensic accounting services, > Legislation and commentary > Updated on an including fi nancial investigations and dispute resolution support. titles ongoing basis Services: Services provided to: > Free e-Books with 2011 > 24/7 online database • Forensic Accounting • Legal Community legislation titles • Financial Investigations • Businesses / Shareholders • Litigation Support • Government Departments Law of CAT Finance (No.3) Act 2011 – the only print edition • Expert Witness Services • Regulatory Bodies available with hundreds of changes • Dispute Resolution • Individuals in dispute impacting civil partners and cohabitants. As a member fi rm of RSM International, we provide local experts supplemented with global expertise. €50 Editor Aileen Keogan, Principal, Aileen Keogan To discuss our relevant experience and how we may be able to Solicitor & Tax Consultant assist you please contact Fiona McGuire on +353 (0) 1 418 2073 or email fi [email protected]
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Law Society Gazette www.gazette.ie October 2011 representation 13 news from the law society’s committees and task forces Law Society wins funding for on-the-job training for unemployed solicitors LAW SOCIETY FINUAS NETWORK AND LAW SOCIETY SKILLNET
Funding has been awarded to to a better chance of full-time carry out project work or develop and the Law Society Finuas Law Society Skillnet and the employment in the future. a new area of business. No salary Network are funded by member Law Society Finuas Network The Law Society Skillnet and is payable by the employing companies and the Training for a number of training courses the Law Society Finuas Network organisation. Networks Programme and the through the Job-Seekers’ are currently seeking employers In-house legal officers have Finuas Networks Programme Support Programme. who are interested in having a been available from the end of respectively. Both these The JSSP offers unemployed solicitor join them, for up to September; litigation participants programmes are managed by solicitors a choice of six six-months’ placement for work will be available from October; Skillnets Ltd and funded from the new programmes in funds experience, in the following funds and compliance/regulation National Training Fund through management, in-house legal areas: participants from November; the Department of Education and officer roles, international • Financial services compliance and social policy and research/ Skills. regulation and compliance, and regulation, Islamic finance participants from For more information, contact Islamic finance, litigation, and • In-house legal officer roles, December. [email protected]; or tel: 01 881 social policy and research. • Investment funds, The Law Society Skillnet 5727. These programmes • Islamic finance, ensure that relevant legal and • Litigation, and tax advisory skills are developed • Social policy and research. and diversified, and provide Revenue issues new form relevant job placement Employers will get the benefit opportunities across a range of a solicitor who has CA 24 (July 2011 edition) of sectors. completed one month of PROBATE, ADMINISTRATION AND TRUSTS COMMITTEE Approximately 112 intensive training to ensure that unemployed solicitors are they can function effectively in The Probate Administration Partnership and Certain Rights currently registered to undertake the work they will do within and Trusts Committee is pleased and Obligations of Cohabitants the programme, which was the workplace. to announce the issuing by the Act 2010, a number of changes launched in August 2011. It The solicitor will be placed Revenue Commissioners of a to the form lobbied for by the also provides job seekers with with the host firm for a period of new form CA 24. committee have been included, relevant work placements in up to six months, and will be in In addition to the changes and the form can be completed their newly trained field, leading a position to assist existing staff, to take into account the Civil on-screen, saved and amended.
Job-seeking skills training A new schedule of training workshops has been organised by the Society’s Career Support service, to take place during October and November 2011 in Dublin and Galway. These evening workshops will take place from 6pm to 8pm. All solicitors are welcome to attend, free of charge, provided they have booked a place in advance.
Successful job seeking Sourcing job opportunities Interviewing and negotiating Using social media Best practices in career management The hidden market of unadvertised Participants will be facilitated to How LinkedIn, Facebook and other will be reviewed. Participants will be jobs is profiled. Strategies will significantly improve how they forms of social media can be used in introduced to insights and techniques be proposed that can help people prepare for, and perform at interviews job seeking and in helping solicitors that can help improve job-seeking improve networking skills and find – and negotiate salary and other with managing their career. efforts. more opportunities. benefits. • Dublin: Tuesday 8 November • Dublin: Tuesday 11 October • Dublin: Tuesday 25 October • Dublin: Tuesday 1 November • Galway: Thursday 10 November • Galway: Thursday 13 October • Galway: Thursday 27 October • Galway: Thursday 3 November
Impressive CV writing CVs that engage the reader and maximise the subject’s chance of being interviewed will be explored, Solicitors attending these workshops can along with covering letters and other qualify for CPD group-study credits. Capacity self-marketing materials. is limited, however, so those planning to • Dublin: Tuesday 18 October attend any event should book their place by • Galway: Thursday 20 October emailing: [email protected]. 14 analysis Law Society Gazette www.gazette.ie October 2011
tribunal chair condemns solicitor cases inaction
The chairman of the Solicitors Disciplinary Tribunal, Frank Daly, has criticised the lack of progress in a number of solicitor cases referred to the DPP and has urged the Minister for Justice to act, reports Mark McDermott
n the Solicitors Disciplinary that “procrastination is the norm. is conscious that its responsibility Tribunal’s annual report 2010, Something is clearly wrong, and in this regard is being undermined Ichairman Frank Daly has heavily it is up to our new minister, who because of the apparent delay in criticised the lack of progress in a has expressed concern on white- deciding whether or not to bring number of solicitor cases referred by collar crime, to take the initiative. certain former solicitors before the the tribunal to the Director of Public The Criminal Justice Act 2011 will criminal courts.” Prosecutions. Mr Daly says that “no help, but without the enforcement Mark McDermott action appeared to have been taken offices being adequately staffed by Severest penalties is editor of the Law in three cases that had been referred competent and qualified personnel, In his report, the chairman states Society Gazette to the DPP” – despite his raising the little will change. At the moment, that “where a respondent [solicitor] issue in the tribunal’s miscreant solicitors has been found guilty of serious 2009 annual report. appear only to have misconduct, the tribunal has had no “I am aware that “Procrastination this tribunal to fear, hesitation in imposing the severest limited progress has is the norm. rather than the full penalties”. been made in some rigours of the law. In 2010, the tribunal of these cases, but Something is This is unacceptable”. recommended to the High Court clearly not enough. clearly wrong, and that eight individuals should have Two of these cases Bond of trust their names struck off the Roll of have now passed the it is up to our new The 2010 annual Solicitors, that two be suspended third anniversary of minister, who has report covers the from practice, and that seven have the solicitors’ strike- expressed concern period 1 January to their practising certificates limited. off. I do not know if 31 December 2010. In addition to recommendations the delays are with on white-collar During the year, that solicitors be struck off, the the office of the DPP crime, to take the the tribunal saw a tribunal has, in certain circumstances, or with An Garda substantial increase recommended to the High Court Síochána. White- initiative” in the number of new that the papers be referred onwards collar crime needs applications coming to the DPP. The High Court made to be prosecuted before it. two such orders in 2010. with energy and efficiency, and I The report points out that, in Findings of misconduct were found would have thought that a decision the three-year period since 2008, in relation to 63 separate applications. should take a maximum period of 12 the incremental increase in the Some of these referred to multiple months. If the DPP’s office or the number of new applications has been applications against certain solicitors Garda Bureau of Fraud Investigation approximately 50%. During this – the actual number of individual are unable to deal with white-collar time, the tribunal has dealt with a solicitors involved in such cases crime because of a lack of trained number of high-profile cases. The was 48. Of these, 17 solicitors were personnel, there are many solicitors, tribunal chairman states that “these referred to the President of the High barristers and accountants out in the have led to a weakening in the bond Court. marketplace seeking jobs who would of trust, not only between solicitors adequately fill these positions.” and their clients, but also with the Role of the tribunal He continues: “The Minister for public in general”. The role of the tribunal is largely Justice should ensure that there is a He continues: “To restore this confined to receiving applications sufficient number of proper profes- bond, it is important that solicitors for an inquiry to be held into the sional teams within the office and the who have engaged in unacceptable conduct of solicitors, or trainee bureau to deal with such cases.” behaviour are made accountable, solicitors, on grounds of alleged Reiterating his statement from the not only for their professional misconduct. Where a prima facie case 2009 report that “justice delayed is misconduct, but also for any of misconduct for inquiry is found by justice denied”, Mr Daly said that possible unlawful acts they may have a division of the tribunal, the tribunal he had no reason to alter his view committed. However, the tribunal proceeds to hold an inquiry into the Law Society Gazette www.gazette.ie October 2011 analysis 15
“At the moment, miscreant solicitors appear only to have this Chairman of the Solicitors Disciplinary Tribunal, Frank Daly tribunal to fear, rather than the complaints of alleged professional the Solicitors Acts give the other matters. the Law Society: misconduct. (A prima facie case tribunal the power and duty to The tribunal full rigours of “During the year is one where sufficient evidence conduct fact-finding inquiries made a finding the law. This is under review, a exists to support an allegation, in relation to complaints against of misconduct in number of serious which calls for an answer from solicitors. The annual report each case, with unacceptable” matters came to the respondent solicitor.) points out that the tribunal, in fines ranging light through the Applications to the tribunal all cases, “makes a tremendous from €250 to €5,000. In two diligence of the Law Society’s are made by the Law Society effort to ensure that solicitors’ cases, the tribunal made a investigating accountants, of Ireland. Subject to a few constitutional rights to fair recommendation to the High who are to be commended for instances under the Solicitors Acts procedures and natural justice Court that each solicitor be their work in discovering these where applications are limited are honoured”. suspended until the outstanding problems. It was disturbing to to the Law Society, members accountant’s certificate was see what respondents had done, of the public may also make a Accountants’ reports furnished. In four cases, but it was heartening to see that direct application to the tribunal The tribunal made findings solicitors were admonished and the system of supervision does without resorting to the Law of misconduct in relation to advised, and the Society was work, and that the monitoring Society. 16 applications alleging that awarded its costs. put in place by the Law Society The annual report states that, certain solicitors were guilty of The chairman of the uncovered the problems.” “at times, respondents express misconduct in failing to file an Solicitors Disciplinary Tribunal The chairman said, however, their incredulity that they are accountant’s report within the praises the work of the that the tribunal continued the subject of a complaint where appropriate time limits, among investigating accountants of to be dismayed by the lack of a solicitor/client relationship appreciation on the part of does not exist. However, such a solicitors to fulfil their duty facts about the solicitors disciplinary tribunal relationship does not have to exist by replying in a clear and for a member of the public to The Solicitors Disciplinary solicitors or barristers. The lay comprehensive manner to the form a view that a solicitor, other Tribunal is a statutory body – members’ remit is to represent the Society, and indeed to their own than their own, has engaged in wholly independent of the Law interests of the general public. All clients. He concluded: “When misconduct.” Society of Ireland. It is composed tribunal members are appointed such failures are brought to In 2010, a total of 159 people of 20 solicitor members and ten by the President of the High Court. the attention of the tribunal, applied for, and received, lay members. Under the Solicitors Acts 1954- appropriate fines ranging from information on making a direct Solicitor members are 2008, the tribunal’s powers are €1,000 to €6,000 have been application to the tribunal drawn from among practising mainly confined to receiving and imposed on the respondents.” G into the conduct of solicitors. solicitors of not less than ten hearing complaints of misconduct Of these, a total of 29 made years’ standing. Lay members against members of the solicitors’ To download the Solicitors applications to the tribunal for an are drawn from a wide variety profession, including trainee Disciplinary Tribunal Annual inquiry to be carried out. of backgrounds, but may not be solicitors. Report 2010, visit www. It is important to note that solicitorsdisciplinarytribunal.ie 16 human rights watch Law Society Gazette www.gazette.ie October 2011
capacity and the right to refuse medical treatment
A High Court ruling on capacity to give consent to medical treatment suggests that the Mental Health Act 2001 may be open to challenge on constitutional grounds, writes Joyce Mortimer
he case of The Health Service to ensure that the voice and views MX indicated clearly through her Executive v MX (a person of of a patient are not only heard but lawyers and she did not consent to the Tunsound mind not so found) considered”. The judge held that, on taking of blood. represented by her solicitor involved an an examination of the issues at stake, In December 2010, an interim involuntary patient in the Central it became evident that “there exists application was made to the High Mental Hospital (CMH) who was a substantial gap in understanding Court to permit the administration required to have blood tests taken as between those who seek a ‘rights- of a drug regime that necessitated the Joyce Mortimer is part of her treatment at the hospital, based’ approach, and others who lay taking of blood samples as an ancillary the Law Society’s to which she objected. The patient emphasis upon the challenges in taking to that regime. On an interim and human rights (MX) was found by the doctors “not care of patients on a day-to-day basis”. interlocutory basis, the court granted executive to have the capacity to make decisions The High Court made reference to permission for the treatments (on the regarding her own welfare”. the case of Shtukaturov v Russia, where basis of expert medical evidence that Mr Justice MacMenamin began his the European Court of Human Rights it was entirely appropriate and in the judgment by referring to the decision (ECtHR) deliberated on the issue patient’s welfare) and, ultimately, the in Re Ward of Court of legal capacity case proceeded to full hearing. (withholding medical and enforced treatment) (no 2) “The issues which are hospitalisation and The interpretation of ‘treatment’ [1996]. The judge raised are important. treatment without Justice MacMenamin stated that stated: “Where The case is without consent. In this case, the core issue for determination consent to particular the ECtHR held was the interpretation of the term forms of medical direct precedent that “the existence ‘treatment’. Counsel for the defendant treatment and the and, as such, in of a mental disorder, submitted that, “the term must be capacity to give that even a serious one, strictly or narrowly interpreted, and consent arise, the my view, it may be cannot be the sole that such a construction is necessary issues of capacity desirable to invite reason to justify full in light of the fact that there are and cognition are incapacitation”. The at stake, here, the curtailment of a fundamental. In the attorney general European Court number of fundamental rights and very exceptional and the Irish Human held that domestic interests without adequate procedural cases, the nature of legislations must safeguards being embodied in the a patient’s condition Rights Commission to provide for a “tailor- statute”. may entirely deprive consider whether they made response”. The judge agreed that a simple them of the ability purposive interpretation might risk to give expression to wish to be fully placed Difficult situation widening the scope, too much, of what any decision-making on notice of the The defendant are deemed permissible treatments. capacity.” Justice questions which are is an involuntary He stated: “Trust, without mechanisms MacMenamin patient in the for review and verification, may be acknowledged the engaged” – Mr Justice CMH who suffers abused.” difficult reality MacMenamin from paranoid facing psychiatrists schizophrenia and Ambiguous meaning upon whom the task of having to make a borderline personality disorder. Counsel for the defendant argued decisions in the patient’s best interests Her condition is severe and she poses that a strict literal approach to is often placed. a risk of extreme violence to others. interpretation should be adopted The judge highlighted the Late in December 2010, her doctors where fundamental rights were seriousness of a finding of incapacity were faced with a difficult situation. involved. This was the approach and referred to international MX required a number of drugs to adopted in the case of Salinas de instruments adopted by the committees counteract her psychiatric condition, Gortari v Smithwick, where the rights of ministers of the Council of Europe and, as part of their administration, it at stake were that of liberty and fair and the United Nations, “intended was necessary to obtain blood samples. procedures. In this case, the rights Law Society Gazette www.gazette.ie October 2011 human rights watch 17
“The judge highlighted the seriousness of a finding of incapacity and referred to international instruments adopted at issue were Justice He stated that the rights that best interests, should allow for a that of self- by the committees MacMenamin were at stake in the given case medical procedure which, albeit determination, of ministers of the stated that were of health and of life itself. invasive, is ancillary to, and part human Council of Europe and the term He found section 57 of the 2001 of, the procedures necessary to autonomy and ‘treatment’ was act particularly instructive in this remedy and ameliorate her mental liberty. the United Nations, ambiguous and, regard. It provides: “The consent illness or its consequences”. Justice ‘intended to ensure therefore, could of a patient shall be required Counsel for the defendant MacMenamin be interpreted for treatment except where, in argued that the 2001 act fails began that the voice and broadly or the opinion of the consultant to adequately safeguard the determining views of a patient are narrowly. He psychiatrist responsible for the defendant’s rights under the whether such a stated that it care and treatment of the patient, constitution and the convention strict approach not only heard but was necessary the treatment is necessary to because it fails, among other should apply considered’.” to look at the safeguard the life of the patient, things, to provide for an in the given purpose of to restore his or her health, to independent tribunal to determine case, in light of the rights issues the enactment. The judge noted alleviate his or her condition, or whether the patient lacks the involved. The judge analysed the that the first striking feature to relieve his or her suffering … capacity to consent to treatment. precise words of the definition of the definition of ‘treatment’ [when] the patient concerned is In response to this, the judge of ‘treatment’, followed by a was that it was not intended incapable of giving such consent.” held that there was no challenge consideration of other provisions to be all encompassing. The The judge held that the intent to the constitutionality of the of the act as an interpretative judge held that there, “may of the Oireachtas in the 2001 act, nor a declaration that it was aid. The judge considered the also be other remedies not act was to give priority to the incompatible with the convention. question of interpretation of the enumerated or identified in the constitutional values of health Justice MacMenamin held that act in a manner “compatible with act”, and the “consequence of the and life. The judge held that “the issue should be properly and constitutional duties and those interpretation urged on behalf this meant “that a clinician may fully pleaded. The issues which obligations which ‘arise under of the defendant in this case administer ‘treatment’, regardless are raised are important. The convention provisions (section would be, in fact, to preclude the of capacity or incapacity in cases case is without direct precedent 2 of the European Convention on possibility of the form of medical of necessity where life is at stake”. and, as such, in my view, it may Human Rights Act 2003)”. The treatment envisaged here”. be desirable to invite the attorney judge acknowledged that “the The judge found that, upon Medical procedure allowed general and the Irish Human court is enjoined to ‘take notice’ examination of the other Justice MacMenamin held, in Rights Commission to consider of judgments of the ECtHR and provisions of the Mental Health conclusion, that, “the court, in its whether they wish to be fully decisions of the committee of Act 2001, there was support for a interpretation of the act, and in placed on notice of the questions ministers.” broader interpretative approach. the assessment of the defendant’s which are engaged.” G Christmas Cards In aId of the SolIcItorS’ Benevolent aSSocIatIon
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each card sold in packets of 50 costing €125 (including overprinting of your firm’s name). minimum order 50 cards. add €7.00 for postage and packaging for each packet of 50 cards. i wish to order pack(s) of card a @ €125, pack(s) of card b @ €125. text to be overprinted: Sample of overprinted teXt will be faXed for confirmation before printing. i enclose cheque for € payable to Santry printing ltd (€132 per pack). Send order form and cheque to: SBA Christmas Cards, Santry Printing Ltd, Unit 5, Lilmar Industrial Estate, Coolock Lane, Dublin 9. tel: 842 6444. contact: amanda Law Society Gazette www.gazette.ie October 2011 letters 19 Overstating the problem?
From: Ronan O’Brien, TP Robinson, Solicitors, 94 Merrion Square West, Dublin 2 refer to the article ‘Nine-tenths Iof the law’ by Gregory McLucas (see Gazette, Aug/Sept 2011 issue, p28) in relation to the High Court decision of Ms Justice Dunne on 25 July 2011 relating to repos- session of properties by lenders. I do not entirely agree with the views expressed by Mr McLucas and believe that he overstates the problem faced by lenders as a result of the High Court decision. Whereas actions under section 62(7) of the Registration of Title Act are no longer possible in the circumstances outlined in the article, there may be other avenues open to the lender in order to regain possession of the property. Banks good at spending other people’s money For example, in the 1984 case of Gale v FNBS, Judge Costello in the From: Seán Ó Riain, legal lenders in housing loan cases to legislature had decided by way High Court held that the lender, by executive, Regan McEntee & purchasers. Rather than retaining of the Consumer Credit Act 1996 virtue of the terms of the mortgage Partners, Solicitors, High and paying their own solicitors that the legal fees should not contract, had a contractual licence Street, Trim, Co Meath to do so, lenders simply passed be passed by the lender to the to enter and take possession of the refer to the article ‘Cause that responsibility to someone borrower. But that legislation property. I and effect’ by Anne Neary else. They simply (with the did not require the introduction This case is not ‘on all-fours’ (see Gazette, Aug/Sept 2011) cooperation of the Law Society) of a system of certification with the decision of Judge Dunne, regarding professional indemnity moved to the borrower’s solicitor’s of title by borrowers’ as it related to the peaceful insurance. certificate-of-title system for solicitors. What actually repossession of the property rather I trained as a legal executive all residential and nearly all happened was that those legal than an action under section 62(7). during the days when we used to investment property. fees were practically abolished, However, the plaintiff had argued close mortgage transactions by I remember remarking at and the work (which certainly that, in the case of registered way of the traditional three-way the time that it was odd that wasn’t abolished) was then land, the only way that a lender closings, in which the solicitors financial institutions were not effectively done for nothing. Or could recover possession lawfully for all parties – the mortgagee, prepared to engage solicitors in some cases, the work was not was by means of an action under the purchaser and the vendor – to protect their own security done at all! section 62(7). The argument was took part and protected each of – simply because the practice Even though the horse has not accepted by the court in this their respective client’s interests. of charging someone else for it bolted, I believe the stable case. Therefore, the repeal of Anne Neary in her article had been banned! Instead, they door can and should be securely section 62(7) may not be fatal in says that, over time, a strong relied on householders (and, and tightly closed again. cases where the mortgage contract feeling developed that clients later on, commercial clients) Solicitors should simply refuse creates a contractual licence in (purchaser/mortgagor) were to pay their own solicitors to to further engage in, or the Law favour of the lender. paying two sets of costs protect lenders’ security. It Society should simply ban the In my experience, this will be unnecessarily. She states that seems that, even then, banks practice of, borrower solicitor the case in most standard bank/ the “solution reached was to were good at spending other certification of title in both building society mortgages in use permit one solicitor to act for people’s money! I had hoped at residential and commercial before the passing of the 2009 act. both the lending institution and the time that many in-house transactions and let the banks Also, mortgages of unregistered the purchaser”, which led to legal jobs might be created engage solicitors and pay land are not affected by the the certificate-of-title system by in the lending institutions. them. Not only will this avoid decision. However, even in the borrowers’ solicitors. She is not However, I also believed it to the same kind of high insurance case of registered land where the strictly correct. be rather unwise of the Law losses described in Anne Neary’s mortgage was created prior to the What, in fact, happened was Society to entertain a system article arising in the future, passing of the 2009 act, I do not that the Consumer Credit Act of certification of title by the but it will also create genuine see why the lender cannot issue 1996 prohibited the passing borrower’s solicitor. employment. proceedings for possession based on of legal fees incurred by The facts are that the (Opinions expressed are my own). on the contract. G COMPANY FORMATIONS € FROM 219+VAT n EXPRESS SERVICE n COMPANY REGISTER n HAND SEAL n BOUND M&A n CERT OF INCORPORATION
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Solicitors’ undertakings are taking a heavy toll in terms of complaints to the Law Society and increases in PII rates. Pat Igoe argues that it’s time to stop facilitating lending institutions with undertakings
Pat Igoe is a of upset all round. The solicitors’ practising solicitor profession does not come out of it with many years entirely well. Reports of defective experience in work are disturbing. conveyancing. He looks forward Ridiculously low fees to using it again Apart from the economics of solicitors acting for lenders in all but name, the undertaking/ ith some lending certificate-of-title system has institutions in a state of directly contributed to significant Wnear panic, and passing costs to all of it on to conveyancing solicitors, “For many us – whether many colleagues are asking – what or not mistakes did our profession let us in for? solicitors, lenders’ were made under Updates are being required in refusals to pay for pressure of relation to undertakings, with ridiculously low peremptory time limits and a the system that fees. sense of serious unease. There has Coleman, solicitor, in November made aware of benefits them has Uncounted been talk of a significant number 2006. The judge told the court the claims – past, existing of complaints being lodged by that she was very conscious of the present and long been seen undertakings do financial institutions, against serious risk to the integrity of the future – with as anomalous or remain out there. solicitors, with the Law Society. lending system in Ireland relating the obvious Some are hostages Abolition of the old three-way to mortgages that the case had implications for just plain greedy, to fortune or to closings seemed a good idea at exposed. the ongoing cost depending on how the lenders. But the time. There seemed to be The bank sought the full of cover. polite you are” giving future duplication, and it made sense for loan funds from the borrower’s Accounts of the undertakings is one solicitor to do the work and solicitor, plus interest and special general another matter. to guarantee title to the lender. penalties, following default by meeting at Blackhall Place on It, at least, deserves careful It clearly suited the lenders. It the borrower. The judge noted 30 July (which I didn’t attend reconsideration by a fairly seemed to suit solicitors’ clients, that the bank had not issued because my blood pressure is disgruntled profession and its and even suited solicitors. At proceedings against the borrower. high enough) suggest deeply leadership. Lending institutions least in principle… That was held, and in some cases, deeply and professional indemnity the orthodoxy and it remained Massive sums saved divisive views among colleagues insurers protect their own unquestioned – unless you were Now, even though the on whether undertakings in interests. Nobody else will protect a maverick and you just didn’t undertakings/certificate-of-title residential conveyancing should ours. Or, indeed, that of the public. understand these things. system has saved the financial be banned. The task force that the Council During one of the recent institutions massive sums in legal For many solicitors, lenders’ of the Law Society has established solicitor scandals, a former chief costs over the years, which they refusals to pay for the system on this matter can be expected executive of Allied Irish Banks preferred not to share with the that benefits them has long been to consider all viewpoints. Many took to the airwaves to assure the solicitors facilitating them, the seen as anomalous or just plain colleagues would argue that nation that there was nothing lenders themselves must now greedy, depending on how polite solicitors need to actively protect fundamentally wrong with the have their doubts, given what the you are. For some colleagues, the both their own interests and solicitors’ undertakings system. receding economic tide is showing squeeze on purchase fees – and, in those of their clients by refusing There certainly wasn’t, and isn’t, up in defective titles from the some cases, no fees at all – in the to continue to facilitate lending for the financial institutions. boom times. mortgage, tightened the time that institutions with undertakings. The lenders might benefit Now, not only are solicitors could be devoted to a file. For Maybe we are reaching the same from a re-reading of Ms Justice under pressure from lenders, various files, the consequences position as Peter Finch shouting Mary Laffoy’s judgment in Bank but also from insurers. Our on client work were perhaps on air: “I’m as mad as hell and I’m of Ireland Mortgage Bank v Daniel professional insurers have been inevitable and are now a cause not going to take it anymore.” G 22 cover story Law Society Gazette www.gazette.ie October 2011 spaghetti junction Road traffic law can be something of a spaghetti junction. While the new Road Traffic Act 2011 addresses many previous problems, it renders some sections of earlier acts ‘stuck at the roundabout’. Robert Pierse switches lanes and puts the foot down
he present situation in relation to (no 2) act 2011, will be brought into operation in Road Traffic Acts is pretty chaotic. It the next few months. We do not know the exact has been that way for some years. extent as of yet. This (no 2) act adds to the chaos. The 1961 act has been amended (Let’s deal with what we have, as of 1 October in major ways by the 1968, 1984, 2011.) 1994, 1995, 2002, 2003, 2004, 2006, 2010 and 2011 acts, and in minor ways by The 2011 act Robert Pierse is T other acts. This article deals with the Road Traffic This act was apparently introduced due to concerns an expert on road Act 2011. And, just to let you know, a new Road about two sections of the 1994 act. These are the traffic law. He is Traffic (No 2) Act 2011 is looming in the rear-view sections that deal with mandatory roadside testing currently rewriting mirror! (section 12) and taking specimens in hospital Road Traffic Law The 2011 act (no 7 of 2011) places sections 12 (section 15). (Volume 2), which and 15 of the 1994 act on a ‘roundabout’ – that is, The Road Traffic Act 2011 was signed into law on is expected to be new versions incoming, old versions exiting. In fact, 27 April 2011. It was brought into operation by SI published in 2011 these new versions are already heading for another 253 of 2011 from 1 June 2011. While it is a short by Bloomsbury roundabout. They will probably be repealed act, it makes significant substitutions for sections Professional before the end of the year; that is, if the 2010 act 12 and 15 of 1994 act – and a lesser amendment to is brought in fully before the end of this year, as section 4 of the 2006 act. expected. The Road Traffic (No 2) Act 2011 proposes amendments to the 1961, 1968 and 2010 acts. Obligation to provide breath specimen Section 2 of the 2011 act substitutes a new more The 2010 act detailed section 12 of the 1994 act. The 2011 This act has broad-ranging potential to affect ‘substituted section 12’ deals with the obligation to this area of law, but little of worth in it has provide preliminary breath specimens. It contains been brought into existence yet. The initial wider provisions than the previous version of commencement statutory instrument (no 394 of section 12 of the 1994 act. 2010) brought section 26(5) (regarding Medical Section 12 of the 1994 act is to be repealed under Bureau exclusion from the Freedom of Information section 33 of the 2010 act when the latter comes Act), section 68 (European disqualification) and into operation. Section 12 of the 1994 act will then section 78 (regulatory signs) into operation on be replaced by section 9 of the 2010 act. 9 August 2010. More recently, statutory instrument 255 of Application of section 12 2011 brought 23 sections into operation on 1 June Subsection (1) applies to a person in charge of a 2011. These, basically, are sections that amend and mechanically propelled vehicle in a public place replace sections in previous acts. who, in the opinion of a member of the Garda It is anticipated that part 2, as amended by the Síochána: Law Society Gazette www.gazette.ie October 2011 cover story 23 junction
Fast facts
> Road Traffic Acts – a spaghetti junction of legislation > Road Traffic Act 2011 – what it does and doesn’t do > The obligation to provide breath specimen – legislation is now more>> detailed > Strengthening of garda powers > Penalties for refusing to comply with the gardaí > Giving samples while in hospital – 2011 act (no 7) is much longer and more stringent than before > Mandatory alcohol testing section 24 cover story Law Society Gazette www.gazette.ie October 2011 a) Has consumed intoxicating liquor, provision subsection (9), the powers of arrest suspects him to be. This is for the purpose of b) Who is committing or has committed an conferred by law are preserved. To whom? section 12(2) of the 1994 act – even though offence under the Road Traffic Acts 1961 to The gardaí only, probably. there appears to be a drafting error in the 2011, act in referring to section 12(2) as being c) Is, or has been, with the vehicle, involved Requirement prohibited in the principal act (that is, the 1961 act). in a collision, or A member of the Garda Síochána shall not This defective wording does not seem to d) Is, or has been, with the vehicle, involved make a requirement, as above, of a person be corrected by section 31 of the 2010 act, in an event in which injury appears or is who has consumed intoxicating liquor, that though section 31 is, of course, not in force claimed to have been caused to a person of is, a person in group (a) of subsection (1), if, yet. such nature as to require medical assistance in the opinion of the garda, such requirement for the person at the scene of the event or would be prejudicial to the health of the Blood or urine specimen while in hospital that the person be brought to a hospital for person. The 2011 act (no 7 of 2011) substitutes a medical assistance. Neither shall a garda make a requirement ‘new’ section 15 into the 1994 act also, and is of a person in group (d) (that is, involved in operative from 1 June 2011. The new section Item (d) is a new insertion by the 2011 act. an event) of subsection (1) if the requirement is much longer and more stringent than the Item (b) has been extended to cover the 2010 would be prejudicial to the person’s health section that existed up to 1 June 2011. Again, and 2011 acts, though the provisions of the in the garda’s opinion, or on the advice of a the situation is that this is probably going 2010 act about intoxicants are not in force. doctor or other medical personnel attending to be only a temporary section, because it is This 2011 act is a temporary measure in the scene of the event. These provisions are intended that section 15 of the 1994 act is to reality, as outlined above, that is, road law on new. be repealed by section 33(c) of the 2010 act the chaotic roundabout. when that comes into force. Again, section Presumption 15 of the 1994 act is a ‘roundabout’, to be Garda powers By subsection (5), the apparatus provided by replaced by section 14 of the 2010 act. Subsection (2) gives a garda the following the Gardaí is presumed to be an apparatus It seems clear, however, that the presently powers in relation to the categories of for indicating the presence of alcohol in inoperative section 14 of the 2010 act will be persons above: the breath. The courts have, in reality, substituted by a new version of same before it i) An option to a garda to arrest the person limited the possibility of challenging this becomes operative, that is, section 15 of the if the garda is of the opinion that it is the presumption – see Whelan and ors v Kirby and 1994 act, and its heir apparent, section 14 of proper course (see below), and DPP [2005] and [2004]; and Oates v Browne the 2010 act. It is probable that the second ii) (a) It places a mandatory duty on a garda as [2010]. Road Traffic Act 2011 will amend section 14 of to category (a) and (d) above; or the 2010 act. (b) an optional power to require persons in The penalty Subsection (1) is a very lengthy subsection categories (b) and (c) above: “A person who refuses or fails to comply dealing with where, in a public place, an - to provide preliminary breath immediately with a requirement of a event occurs in relation to a mechanically specimen; member of the Garda Síochána under this propelled vehicle, in consequence of which - and it requires the person to section commits an offence and is liable, on a person is injured, or claims or appears to accompany the garda to a vehicle or summary conviction, to a Class A fine or to have been injured, and is admitted to, or place for that purpose; and/or imprisonment not exceeding attends at, a hospital. Then - to require the person to remain at the six months, or to both”. a member of the Garda scene for a period not exceeding an A Class A fine is, of “The garda may arrest Síochána may arrange the hour. course, a fine under the Fines the person without carrying out of certain tests Act 2010, section 3, and on the driver or person in This power, that is, in (ii) as to requiring is a monetary penalty not test, if the garda is charge of the vehicle. specimens, is limited, as below, by subsection exceeding €5,000. of the opinion that he (6) and subsection (7) of this section. should be arrested. Arrest Barring of a defence The garda may arrest the Arrest It is not a defence in Subsection (i) of person without test, if the The previous subsection (2) had not given any proceedings or the 2011 act (No 7) garda is of the opinion that the first option above to the garda, even in proceedings under he should be arrested. This though it did have a clause in subsection (4) subsection (3), that is, substantially widens subsection substantially (which is now repeated in subsection 4 of refusing or failing to comply the scope of the widens the scope of the the new version of the act) to arrest a person to show that the member of powers of a garda, allowing without warrant who was committing or the Garda Síochána did not powers of a garda, the garda to arrest a person had committed, in the member’s opinion, an make a requirement under allowing the garda to rather than require samples offence under the section. this section. to be provided. This seems to mean that the garda, now, arrest a person rather In this new version of can arrest directly without going through a Entry than require samples section 15, it is stated preliminary breath test. Presumably, this is It must be remembered in subsection (8) that when he considers (that is, ‘is of the opinion’) that, in section 39(2) of the to be provided” nothing in the section that the person is so drunk or on drugs that 1994 act, a garda is given affects any power of arrest there is no need for a test. The change is wide powers of entry without warrant to any conferred by law apart from this section. This probably primarily aimed at drugs because, place (including the curtilage of a dwelling, presumably draws in common law powers, as of course, the equipment at present available but not including the dwelling) where a well as other statutory powers, for example, cannot cope with drugs. Then, in a new person is, or the garda, with reasonable cause, the Misuse of Drugs Acts, and so on. Law Society Gazette www.gazette.ie October 2011 cover story 25 There is the usual provision as to the requirement to give either a blood sample or a urine specimen to a designated doctor or nurse. However, if the doctor or nurse states in writing: i) That he or she is unwilling, on medical grounds, to take from the person the specimen, or ii) That the person is unable or unlikely within the period of time referred to in sections 49 or 50 of the 1961 act (the three-hour period) to comply with the requirement, then the garda may require the other type of specimen, that is, other than that which was first required. Item (ii) is a new provision. “A person who refuses Mandatory consultation or fails to comply Subsection (4), which is a new provision, states immediately with that before making a a requirement of a requirement of a person in hospital, as above, the member of the Garda garda shall consult with the Síochána under this doctor treating the person, and if a doctor treating the section commits an person advises that such offence and is liable, a requirement would be on summary conviction, the 1994 act and section 7 Again, a ‘roundabout’ exists here, as prejudicial to the health of of the 2010 act, although section 4 of the 2006 act and the whole of the person, the garda shall to a Class A fine or this latter section is not the 2003 act are to be repealed by section not make the requirement. to imprisonment not yet in operation. Further, 33 of the 2010 act when the latter section is under section 33(d) of brought into force. Defence exceeding six months, 2010 act, it is intended to The ‘new’ subsection (3) or to both” repeal section 39(2), (3) A consolidating act? follows the lines of the and (4). It is rather mixed Ideally, we should now dispose of all of these previous subsection (3), up at present. bothersome roundabouts and build one that is, that it is not an offence, where the coherent highway by consolidating the Road doctor and nurse refuse on medical grounds No Probation Act Traffic Acts 1961-2011. to permit the taking of a specimen, that Subsection (7) continues the non-application As stated, the 2010 act will probably be a person refuses or fails to comply with a of the Probation Act 1907 to an offence under amended before it is brought fully into garda requirement. the section. operation. A further 2011 act will probably substitute into the 2010 act sections 9 and 14. Penalty Defence barred Versions of the ‘new’ sections 12 and 15 of Subsection (2) deals with the penalty The last subsection of this new version of the 1994 act are set out in sections 2 and 3 of that is a Class A fine and/or six months’ section 15 of the 1994 act bars the defence the 2011 act. imprisonment. This act is the first one in any proceedings, other than proceedings Stay alert and stay awake when driving in the Road Traffic series to introduce the under subsection (2) (that is, arrest/ through these acts! G notion of Class A fines into the Road Traffic requirement power), to show that the garda Acts. No reference is made to the Fines Act did not make a requirement under this 2010. section 15. Look it up
Entry Mandatory alcohol testing Cases: Subsection (5) repeats the previous garda Section 4 of the Road Traffic Act 2006 deals • Oates v Browne [2010] IEHC 381 power to enter a hospital without warrant with mandatory alcohol testing, that is, • Whelan and ors v Kirby and DPP [2005] where a garda, with reasonable cause, where the garda is operating a checkpoint 2 IR 30 [2004] ILRM 1 suspects the person to be. Subsection (6) under an authorisation. This section is states that a designated doctor or nurse amended by section 4 of the 2011 act on the Legislation: may, similarly, enter any hospital where technical basis by substituting subsection (4) • Freedom of Information Act 1997 the person is, or where the doctor or nurse “including those functions under section 12 • Fines Act 2010 (no 8 of 2010) is informed by a member of the Garda (inserted by section 2 of the Road Traffic Act • Misuse of Drugs Acts 1977 and 1984 Síochána, that the person is – as set out 2011) of the act of 1994” for “including the • Probation of Offenders Act 1907 previously in subsection (4) of the 1994 act. powers under section 12 (inserted by the act • Road Traffic Acts 1961 to 2011 More powers of entry are in section 39 of of 2003) of the act of 1994”. 26 criminal law Law Society Gazette www.gazette.ie October 2011
Shelley Horan is a practising barrister, lecturer and author of Corporate Crime (Bloomsbury Professional, 2011) white heat Law Society Gazette www.gazette.ie October 2011 criminal law 27
The Criminal Justice Act 2011 gives new powers to the gardaí, introduces protection for whistleblowers, and will have major ramifications for solicitor access. Shelley Horan breaks out the starch
he Criminal Justice Act to bankers’ confidentiality, but does ensure 2011 – more colloquially that the privilege against self-incrimination known as the ‘white- is guaranteed in the context of an oral collar crime act’ – was statement – but the privilege does not apply commenced on 8 August to documents required to be adduced. The 2011. It is largely a provision is a reaction to the uncooperative Twelcome step in the Government’s fight behaviour of some individuals in the Anglo against white-collar crime. The act Irish Bank investigation, and it should also applies to ‘relevant offences’ that are assist with problems of accessing computers arrestable offences (that is, offences that and piecing together a coherent trail of attract penalties of at least five years’ information for use at a trial. imprisonment) that, broadly speaking, come within the following groupings: Misprision of felony • Offences relating to banking, investment Third, the act reintroduces the old of funds and other financial activities, common-law offence of misprision of felony, • Company law offences which was abolished • Money-laundering by the Criminal Law and terrorist offences, “The act will not prevent Act 1997. The offence • Theft and fraud future occurrences of effectively requires offences, people at any level of a • Bribery and white-collar crime. corporation to provide corruption offences, What it will do, information about • Consumer protection an offence that they offences, and however, is provide either know will be • Cybercrime offences. welcome assistance committed – to ensure that its commission The act is intended to to investigatory bodies can be prevented – or facilitate investigations when seeking to garner to disclose information into white-collar crime about a suspected and has five key aspects information about offence, in order that “Mmm, that dirty, to it. First, there is a corporate or white-collar investigators are assisted double-crossin’ rat...” new power on the part criminal activity” in its detection. The of the gardaí to suspend section is very broadly Fast facts detention periods so drafted and it is unclear that they can revisit the questioning of a exactly how it will apply in practice. It > The Criminal Justice Act 2011 suspect, having had the chance to familiarise effectively places a legal duty on an innocent commenced on 8 August 2011 themselves with complex evidence already bystander to come forward with information > The act is intended to facilitate assimilated and the nature of the offence about an offence. investigations into white-collar crime itself. Investigations into corporate crimes A provision like this tends to attract > It introduces a new garda power tend to be difficult and complicated, as, academic controversy, based on moral to suspend detention >>periods when most often, the offence in question has many arguments about criminalising the questioning a suspect intractable facets and may be one that the inactivity of an innocent third party. > It gives new garda powers to compel investigator has not come across before. Misprision of felony no longer exists in the production of documentation in a Therefore, the ability to suspend detention most common-law countries, although readily identifiable form or to compel an periods in this manner will be of huge it does exist in US federal criminal law. individual to answer questions to assist benefit to the gardaí. It is unclear how the offence will tie in an investigation Second, the act allows a member of with other reporting obligations, such as > It reintroduces the old common-law the Garda Síochána to call on a District those requiring designated persons to file offence of misprision of felony Court judge to compel the production of suspicious transaction reports under money- > Whistleblower protection has been added documentation in a readily identifiable laundering legislation. The act does not > It clarifies the law in relation to access to form, or to compel an individual to answer expressly protect the privilege against self- a solicitor during questioning questions to assist the investigation. The incrimination or legal privilege. act does not protect against a person’s right These are well-established legal rights, 28 criminal law Law Society Gazette www.gazette.ie October 2011 and it would be surprising if the section in would not have been uncovered had it not forward. That it why it is regrettable that the act is interpreted so as to remove either of been for whistleblowers. The act prevents further protections of anonymity or immunity them. Therefore, it is unlikely that a person employees from being penalised by their are not guaranteed under the act. who is complicit in criminal activity, such as a employers when they report suspected white- person involved in an insider dealing ring or a collar activity. Penalisation can be difficult to Access to a solicitor criminal price-fixing cartel, would be expected prove, however, as an employer might dismiss The act also clarifies the law in relation to to come forward, as this would violate their somebody under another pretext. access to a solicitor during questioning – the right to protect themselves against self- The act appears not to go far enough, in fifth aspect of the act. This brings Ireland in incrimination. On this reasoning, the act only that it fails to give protection to a person who line with ECHR jurisprudence. Section 5A targets innocent persons who witness the is not an employee, but is an independent contains the general rule that questioning of commission of an offence or have information contractor engaged by the company to carry detained persons is not to proceed, pending about an offence. For the most part, this will out particular work. Yet the independent access to legal advice. Two exceptions are involve employees, which brings us to the contractor will be compelled under the permitted: where the person waives his or fourth key aspect of the act – the protection remodelled misprision of felony offence to her right to consult, or where the member in for whistleblowers. report suspicious conduct – but there will be charge authorises questioning. no protection against the contractor’s contract There are various provisions on the statute Whistleblower protection not being renewed due to whistleblowing. book that allow inferences adverse to an The introduction of whistleblower protection Neither does the act provide for immunity accused to be drawn in criminal proceedings that is not confined to specific sectors – as from prosecution, unlike the protection from his or her failure, or refusal to, for in the past, where it applied to health- that exists for competition-law offences by example, answer certain questions asked by and-safety offences and, more recently, to virtue of a joint understanding between the gardaí during an investigation. corruption – is a heartening development. Competition Authority and the DPP. Further, In the context of white-collar crime, a The act widens the protection, so that it the act does not guarantee confidentiality, crucial aspect of those provisions is section applies to white-collar offences coming although Transparency International has set 19A of the Criminal Justice Act 1984 (as under the umbrella term, used in the act, of up a confidential whistleblowing line along amended by section 30 of the Criminal Justice ‘relevant offences’. Adequate whistleblower the lines of those that exist in Britain and Act 2007), which provides that, where an protection has been called for over many the US. There is a huge stigma attached to accused is detained upon the commission years, as the view is that white-collar crimes whistleblowing, and a person of an arrestable offence and will not be unearthed without whistleblowers involved may be victimised “The he fails to mention any fact coming forward. In Ireland, the Allied Irish by his or her colleagues or relied on in his defence, certain Bank overcharging scandal and the National employer. Therefore, it is very introduction of inferences may be drawn by a Irish Bank systemic scheme of tax evasion difficult for employees to come whistleblower jury at trial. Section 19A is an onerous protection that is provision, particularly in the not confined to case of complex financial or fraud offences, where asserting specific sectors facts that may be relied on is a heartening in one’s defence may present an extremely difficult burden development” for an accused in the absence of legal advice. In such circumstances, a person is entitled to access to his solicitor; however, arguably, the safeguard does not go far enough. In England, a solicitor may be present during a police interview under the terms of the Police and Criminal Evidence Act 1984 (normally referred to as ‘PACE’) and, in certain cases, where a solicitor is not present, restrictions on the right to draw inferences will apply. In addition, the American ‘Miranda’ rule gives a suspect the right to have a lawyer present during questioning. It remains to be seen whether a challenge will be brought seeking the right to have a solicitor present during questioning about complex white-collar crime when section 19A is raised.
Welcome assistance Had the Criminal Justice Act 2011 existed before or during the financial crisis of 2008, it would not have prevented any of the white-collar crimes that occurred prior to or at that time. Therefore, orchestrators of Law Society Gazette www.gazette.ie October 2011 criminal law 29
complex evidence spoken out in the past 12 months about how they have sufficient resources. Another measure brought in by the Government to the jury, When Jessica de Grazia, a New York recently is the Criminal Justice (Theft and • Any other document that, in the opinion of prosecutor, was asked to commission a review Fraud Offences) Act 2001 (Commencement) the trial judge, would be of assistance to the of Britain’s Serious Fraud Office in 2008, she Order 2011 (SI 394/2011), which has jury in its deliberations, including, where discovered that the body used significantly commenced section 57 of the Criminal Justice appropriate, an affidavit by an accountant more resources per case than its US (Theft and Fraud Offences) Act 2001, so that summarising, in a form that is likely to be counterparts, but achieved significantly less for the section has force as of 1 August 2011. understood by the jury, any transactions its efforts. De Grazia therefore recommended Now, in the course of a trial on indictment, by the accused or other persons that are a number of reforms for the British system that the trial judge may order that copies of any, relevant to the offence. could also apply here to white-collar cases: or all, of the following documents be given to • The introduction of a form of plea the jury in any form that the judge considers This provision is aimed at assisting juries in bargaining, appropriate: understanding financial information and other • The deployment of sentencing guidelines • Any document admitted in evidence at the complex evidence in fraud cases. While the to ensure that a more formulaic approach to trial, commencement of this section is a welcome sentencing exists, • The transcript of the opening speeches of development, especially since the act was • The use of pre-trial or preparatory hearings counsel, first introduced ten years ago, the equivalent so that evidential and legal issues can be • Any charts, diagrams, graphics, schedules provisions in the Competition Act 2002 and dealt with at the outset of a trial, or agreed summaries of evidence produced the Company Law Enforcement Act 2001 have • The case management of trials, at the trial, yet to be commenced. Companies Acts and • The employment of trial lawyers at an • The transcript of the whole or any part of the competition law offences can be as difficult earlier stage in the investigation to ensure evidence given at the trial, for a lay juror to comprehend as complex that investigators are not getting bogged • The transcript of the closing speeches of evidence in a fraud trial and, therefore, it is down with irrelevant information or counsel, regrettable that these provisions have not yet documentation, • The transcript of the trial judge’s charge received legislative force. • A more streamlined approach to disclosure, and • The use of pre-trial issue statements.
Ponzi schemes or errant bank directors would pyramid scheme, and some three to four years While the Criminal Justice Act 2011 is a not have behaved any differently had the act later they have not been prosecuted, it seems welcome step on the road in the battle against existed. By the same token, the act will not apparent that there are delays in the system white-collar crime, the Irish Government also prevent future occurrences of white-collar that need to be tackled. needs to review the resources of the bodies crime. What it will do, however, is provide Even if a successful prosecution is taken, in charged with tackling this area and question welcome assistance to investigatory bodies many cases suspended sentences are imposed, whether the system here needs extensive when seeking to garner information about much to the ire of the public. Therefore, reform to bring us up to speed with our US corporate or white-collar criminal activity. legislation dealing with white-collar crime peers. There is a huge amount of legislation on the is seen merely as window-dressing and not One aspect that could be reviewed is statute books already prohibiting the myriad put into practice as often as it should be. whether the various regulatory, investigatory classes of white-collar criminal activity. The The question is often raised as to whether and prosecuting bodies could be merged to public’s perception of white-collar crime is this issue is one of a lack of ample resources form one centralised unit in order to reduce that such criminals can act with impunity for investigatory, regulatory and prosecuting fragmentation, strengthen and harmonise in Ireland and that prosecutions are rare. bodies. However, the Garda Síochána and investigatory powers, and better facilitate When somebody admits that they operated a the Director of Corporate Enforcement have exchanges of information. G 30 employment law Law Society Gazette www.gazette.ie October 2011
The EAT’s 2010 annual report indicates that 58% of referrals consisted of claims under the Redundancy Payments Acts and the Unfair Dismissals Acts. Alan Haugh spells it out
he Employment Appeals Tribunal (EAT) employees to carry out work of a particular kind in recently published its annual report for the place where he was so employed have ceased or Alan Haugh BL is 2010. The report indicates that the bulk diminished, or are expected to cease or diminish, and/or currently a senior (58%) of referrals to the EAT in 2010 c) The employer has decided to carry on the business with associate in the consisted of claims under the Redundancy fewer or no employees, whether by requiring the work employment law Payments Acts 1967-2007 and the Unfair for which the employee has been employed (or had practice group at TDismissals Acts 1977-2007. The tribunal’s report does not been doing before his dismissal) to be done by other A&L Goodbody. provide any further analysis of the grounds on which the employees or otherwise, and/or He was previously unfair dismissal claims were grounded. However, it can d) The fact that the employer has decided that the work legal advisor to safely be assumed that a large percentage of such claims for which the employee had been employed (or had the National were brought by applicants seeking to challenge their been doing before his dismissal) should henceforward be Employment Rights previous employer’s decision to dismiss them by reason of done in a different manner, for which the employee is Authority and head redundancy, or to challenge the procedures followed by not sufficiently qualified or trained, and/or of employment law the employer in effecting the redundancy. e) The fact that the employer has decided that the work at IBEC for which the employee had been employed (or had ‘R’ is for redundancy been doing before his dismissal) should henceforward An employee who is dismissed shall be taken to be be done by a person who is also capable of doing other dismissed by reason of redundancy if the dismissal is work for which the employee is not sufficiently qualified attributable wholly or mainly to: or trained. a) The fact that the employer has ceased, or intends to cease, to carry on the business for the purposes of which The EAT, in adjudicating on redundancy matters, has the employee was employed, or has ceased or intends to consistently emphasised that each of the grounds that cease to carry out that business in the place where the comprise the above statutory definition of redundancy has employee was so employed, and/or two important characteristics, namely: b) The fact that the requirements of that business for • Impersonality, in that it refers to the job and not the person affected, and • It focuses on change in the workplace.
The qualification that the dismissal must be attributable ‘wholly or mainly’ to one of the above reasons cannot the be overemphasised: an employer’s defence of an unfair
of redund ancy Law Society Gazette www.gazette.ie October 2011 employment law 31
Fast facts
> Where an employee has been dismissed for redundancy, he may be entitled to pursue a claim of unfair dismissal before the Rights Commissioner or the EAT > An employer’s defence of an unfair dismissal claim on grounds>> of redundancy can be derailed where the claimant adduces evidence to suggest a history of bad relations between the latter and a manager, for example > If the employee makes a prima facie case that the decision to dismiss him was not due “wholly or mainly” to the employer’s need to make redundancies, the employer will have to convincingly refute such redund ancy allegations 32 employment law Law Society Gazette www.gazette.ie October 2011 dismissal claim on grounds of redundancy on or after 1 January 2005). Partial years are payments are usually expressed in terms of can be derailed where the claimant adduces also accounted for on a pro-rata basis. The ‘x times gross weekly pay per year of service’. evidence to suggest a history of bad relations statutory lump sum payable to the employee An employer may impose a cap on the total between the latter and a manager, for is non-taxable. The employer can seek a payment to an employee (for example, example. rebate of 60% of the statutory lump sum two years of gross pay). Also, in the case from the Social Insurance Fund. of employees approaching contractually ‘E’ is for entitlements There is an online calculator available agreed retirement age, an employer may For the purposes of the Redundancy Payments that employees and employers can use to legitimately limit the maximum amount Acts, a qualifying employee is one who is calculate the exact amount of the statutory payable to an employee by reference to what over the age of 16 and has 104 or more lump sum and rebate payable to the the employee would have earned between weeks of continuous service with the employee and employer respectively. This redundancy and retirement age. employer. There is no longer an upper age calculator can be accessed via the websites of Even in circumstances where an employer limit for redundancy purposes. The acts either the Department of Social Protection has paid a particular level of ex gratia in provide that a qualifying employee is entitled or the Department of Jobs, Enterprise and previous redundancy situations, there will to the following in a redundancy situation: Innovation. not usually be a contractual obligation • Written notice of redundancy, In certain circumstances where the on the employer to match that level of • Paid time off to seek alternative employer is unable to pay the lump sum, payment again. It is normal practice for an employment, and the Department of Social Protection may employer to make the payment of ex gratia • A statutory lump-sum payment. pay the statutory amounts due to employees redundancy lump sums conditional on the directly and seek to recoup the 40% balance employee signing a comprehensive ‘waiver An employee’s notice employment will from the employer. This will only be the and discharge agreement’, the purpose and be the longer of (i) two weeks; (ii) the case where the employer has signed the effect of which is to exclude the possibility statutory notice entitlement under the RP50 forms for the relevant employees and of the employee taking legal proceedings Minimum Notice and Terms of Employment has provided evidence (for example, certified to challenge the validity of the dismissal Acts 1973-2005 (varies from one to eight accounts) to the department of inability subsequently. weeks, depending on an employee’s length to pay the statutory amounts. Special of continuous service); or (iii) the employee’s arrangements can be made in the case of ‘P’ is also for procedure contractual notice (typically three months employers awaiting VAT or other rebates An employer that finds that it has to reduce for executive or managerial employees). from Revenue, whereby the amount of the its workforce by reason of redundancy The parties may agree payment in lieu rebate can be offset against the employer’s is required to follow a fair and objective of all or part of the notice period, where, 40% contribution to the statutory lump-sum procedure to determine which positions for example, time is of the essence for redundancy payment. will be eliminated and, consequently, the employer seeking to implement the If it is the case that an employer purports which employees will be dismissed. If the necessary changes in the business. In such to dismiss a qualifying employee by reason employer has previously had occasion circumstances, the employee’s statutory of redundancy, but refuses to make the to effect redundancies, it may have an redundancy entitlement statutory payment due to established procedure in place. If this is the will be calculated to the that employee, and fails case, the employer will not be permitted date on which his notice “Best standards in or refuses to sign form to depart from that procedure unless he would have expired. human-resources RP50 confirming the can demonstrate that special circumstances During the final two employee’s entitlement to apply. weeks of the employee’s practice suggest that an the statutory lump sum, In the event that there is no established notice period, he is entitled employer should have in the employee will have redundancy procedure, an employer is free to reasonable, paid time place an internal appeal no choice but to make an to develop one, which can range from one off, on giving advance application to the EAT based on the very simplistic ‘last in, first notice to the employer, for stage whereby an to have his entitlement to out’ (LIFO) selection criterion, to one the purposes of attending employee who has been payment adjudicated on. based on a more complex selection matrix, job interviews, registering As the EAT’s recent possibly agreed with employees or their with an agency, or to notified that he is to be annual reports confirm, representatives, and taking account of factors arrange for training. dismissed by reason of there has been a such as competence, skills, performance significant increase in appraisal history, and qualifications, for ‘L’ is for lump sum redundancy can seek such applications to the example. Under the Redundancy to have the employer’s tribunal – the majority of The Redundancy Payments Acts themselves Payments Scheme, all which go uncontested by do not provide guidance on what constitutes eligible employees are decision reviewed” the respondent employer. objective selection criteria or fair procedures, entitled to a statutory Once the EAT has generally, in the context of determining redundancy lump-sum payment on being confirmed the claimant’s entitlement to which employees are chosen for redundancy. made redundant. A redundancy situation the statutory lump sum, the Department of This lacuna has been filled by extensive arises, in general, where an employee’s job Social Protection will process the claim and jurisprudence on the part of the EAT over no longer exists and he/she is not replaced. seek to recoup the employer’s contribution. the years. In particular, in this regard, the An employee is entitled to two weeks’ pay EAT has focused on section 6(7) of the for every year of service, with a bonus week ‘P’ is for payment Unfair Dismissals Act 1977, which permits it, added on, subject to the prevailing maximum Some employers will make an additional ex in determining whether a dismissal is unfair, ceiling on gross weekly pay (€600 with gratia or ‘company’ payment to employees to have regard to “the reasonableness or respect to redundancies notified/declared on top of the statutory payment. Such otherwise of the conduct (whether by act Law Society Gazette www.gazette.ie October 2011 employment law 33 Should the case go to hearing, the onus will be on the employer to demonstrate that: • There was a genuine redundancy situation within the meaning of the acts that necessitated the elimination of the position held by the claimant, • The claimant was fairly selected for redundancy, and • The employer gave reasonable consideration to any and all alternatives to redundancy proposed by the employee.
If the employee makes a prima facie case that the decision to dismiss him was not due “wholly or mainly” to the employer’s need to make redundancies, the employer will also have to convincingly refute such allegations. In the event that the employer fails in its defence of the unfair dismissal claim, the Rights Commissioner or EAT, as the case may be, may award the claimant one of the following remedies: reinstatement, re-engagement, or compensation. The former two awards are rarely made (the EAT awarded reinstatement in only six cases in 2010). Compensation is “An employer limited to the claimant’s loss of earnings directly that finds that it attributable to the unfair has to reduce its dismissal, subject to an absolute cap of two years’ workforce by reason remuneration. There is of redundancy is mixed practice across different divisions of required to follow the EAT when awarding a fair and objective compensation to claimants who succeed under the procedure to Unfair Dismissals Acts or omission) of the employer in relation to for redundancy, he may be determine which in challenging their the dismissal” and the extent to which the entitled to pursue a claim positions will be redundancy dismissal – employer has complied or failed to comply of unfair dismissal before some divisions will expressly with any dismissals procedure or any code of the Rights Commissioner eliminated” provide in their written practice. or the EAT. The fact that determination that the the employee has signed the RP50 form and award is in addition to, or inclusive of, the ‘A’ is for appeal confirmed receipt of a statutory payment is statutory or other payments made to the Best standards in human-resources practice no bar to the employee commencing such employee by the employer; other divisions suggest that an employer should have in proceedings. are silent on the issue. G place an internal appeal stage whereby an employee who has been notified that he is to be dismissed by reason of redundancy can seek to have the employer’s decision reviewed. Look it up Such an appeal stage is not mandatory – and, indeed, may not be feasible for a small- Legislation: • Links to the legislation under which the scale employer – but where it is available to • Minimum Notice and Terms of EAT has jurisdiction to hear claims and affected employees, it will add credibility Employment Acts 1973-2005 appeals can be found at www.eatribunal.ie/ to an employer’s claim to have followed fair • Redundancy Payments Acts 1967-2007 en/about_legislation.aspx procedures throughout. Likewise, in the event • Unfair Dismissals Acts 1977-2007 • Statutory redundancy calculator: that an employee fails to avail himself of the www.welfare.ie/EN/Schemes/ opportunity to appeal an employer’s decision Literature: RedundancyandInsolvency/redundancy/ internally, that employee is likely to lose a • Employment Appeals Tribunal, Annual Pages/onlineredundancycalculator.aspx certain amount of credibility should he decide Report 2010, www.eatribunal.ie/en/ • Form RP50: www.djei.ie/forms/formrp50. to pursue a claim before a third party. annual_reports.aspx pdf Where an employee has been dismissed 34 registration of title Law Society Gazette www.gazette.ie October 2011
John Deeney is deputy registrar, John O’Sullivan is head of corporate affairs, and Shay Arthur is mapping advisor at the Property Registration Authority
The PRA’s digital mapping project brings to a successful conclusion one of the largest and most complex technology projects undertaken by the Irish Government in recent years. John Deeney, John O’Sullivan and Shay Arthur point the way here be dragons...
he completion of the Property Registration Authority’s digital mapping project brings to a successful conclusion one of the largest and most complex technology projects undertaken by the Irish Government in recent years. The project took seven years, from design to Tfinal implementation, with the digitisation of the paper maps undertaken on a county-by-county basis over a five-year period. This article outlines the main objectives and outcomes from the project. A follow-up article (to be published in November) considers some of the issues that have come up for discussion, including the system of ‘non-conclusiveness’ of boundaries that operates in Ireland.
Benchmark The key contributions of the PRA to the Irish economy are to provide a parcels, based upon the national framework register of title to land and to guarantee security for those transacting in provided by Ordnance Survey Ireland property. The system of registration of title offered by the PRA provides (OSI) maps. Thus, a clear and reliable plan a comprehensive record that is clear, easily accessible, minimises risk of is substituted on first registration for the fraud and responds to customer needs. vague descriptions and inaccurate deed maps A distinguishing feature of registered conveyancing is that registered frequently associated with unregistered titles. land is described by reference to a map (‘plan’) of the registered land Indeed, it is often the case that the process of Law Society Gazette www.gazette.ie October 2011 registration of title 35
first registration has a curative effect as regards These paper maps (the County Series and the Fast facts defects in title, such as vague descriptions in more recent Irish Grid) served the purpose of deeds and inaccurate deed plans going back land registration since 1892 very well. > Number of land parcels digitised: over many years. Section 84 of the Registration of Title Act 2.8 million 1964 required the Land Registry to map > Number of registered boundaries Longitude registered boundaries on the latest available digitised: 16 million Prior to the recent digitisation programme, Ordnance Survey maps. In line with this > Projected cost: €31 million provision, it was a statutory requirement since > Actual cost of project:>> €25.1 million Land Registry maps were maintained at varying map scales in the traditional paper format. 1986 that the Land Registry map for property 36 registration of title Law Society Gazette www.gazette.ie October 2011 brought over into the digital environment correctly. The guide is known as the Digitisation Protocol and it outlines the procedures and protocols to be used when making decisions during the data-capture process. The document sets out all of the elements that must be considered and describes in great detail which OSI features are appropriate to adopt or not adopt, as the case may be, and provides many visual examples to support the decision-making process. The Digitisation Protocol is available online at www.prai. ie. A number of presentations on the data-capture process “Digital mapping were made to representatives has vastly of the legal profession and other professionals operating improved the in the land registration and capacity of the property domain, and there was extensive consultation with in urban areas, insofar as was possible, would Following an extensive PRA to process the surveying community. be provided at a 1:1000 scale, with necessary or procurement process, the applications and It is important to note obvious adjustments to conform to Ordnance project was launched in July to cope with the that making decisions Survey detail (rule 3 of the Land Registration 2005. The first phase was on the adoption of OSI Rules 1986 (SI 310 of 1986) refers). successfully completed with diminishing staff topographic detail is not a new However, much of the country had not been the making available, online, and financial phenomenon that has come resurveyed for many years, until the period of key geographical locator about as a result of the PRA between 1995 and 2009, when OSI conducted data (‘seedpoints’) for the resources digitising the Land Registry their resurvey of Ireland using the new ‘Irish entire country by July 2006. available to the map. Indeed, long before the Transverse Mercator’ (ITM) coordinate Seedpoints are the geospatial digitisation programme, the reference system. At that stage, it was an mechanism through which organisation” Land Registry continually obvious and sensible move for the PRA to individual land parcels are updated its paper maps to the adopt and use the new ITM-derived mapping, linked to their corresponding legal title. With latest available Ordnance Survey mapping in once it was published. However, it was also this significant achievement, customers of order to comply with its statutory obligation to readily apparent that the PRA could not www.landdirect.ie do so. As a result, the Land Registry has many accomplish this in a paper-based environment. could, from that date, conduct online map years of experience of updating its records to This would have resulted in yet another set of searches for the entire country. the latest available Ordnance Survey maps, paper maps covering the same area, making The second phase, involving the systematic including when OSI introduced its 1:2500 manual mapping searches complex and digitisation of the boundaries of every property scale mapping and, again, when Irish Grid confusing. registered in the PRA – amounting to 2.8 1:1000 and 1:2500 mapping was introduced. Accordingly, it was decided that the optimum million or so land parcels and encompassing Similar considerations and guidelines to those solution to the mapping conundrum was to about 16 million individual boundaries – contained in the Digitisation Protocol were used digitise the Land Registry maps and to make commenced immediately thereafter and was as the basis for these decisions. them available online via the www.landdirect.ie completed in August 2010. web portal. The legislative basis for the digital map is Relief contained in section 85 of the Registration of One of the benefits of the digitisation and Orientation Title Act 1964, as substituted by section 62 accompanying quality verification programme Since its foundation in 1892, the Land Registry of the Registration of Deeds and Title Act 2006. has been the identification and elimination had built up a map base of over 36,000 paper This provides for the form in which the Land of some historical anomalies that existed on map sheets, mostly of A0 size. Of course, many Registry map may be maintained, including the paper maps prior to digitisation. This of these had undergone natural wear and tear “electronic or other non-legible form as may process is continuing and will result in many through extensive use over the decades and be prescribed”. development schemes becoming realigned required special storage conditions. One of with revised OSI topographical detail, thus the objectives of the digital mapping system Triangulation ensuring that the Land Registry map is as good was to secure this unique and historical The digitisation of 2.8 million land parcels a representation of what exists on the ground mapping archive. Other key outcomes included was a major undertaking that required careful as is possible within the scale of maps available providing faster and better service delivery, planning, and the development of a detailed to the PRA. making better use of staff resources and guide or handbook to manage and control the Digital mapping has, of course, vastly delivering improved statistical and reporting process was an essential first step. Considerable improved the capacity of the PRA to process control over the land register. care was taken to ensure that properties were applications and to cope with the diminishing Law Society Gazette www.gazette.ie October 2011 registration of title 37 staff and financial resources available to the implementation of the INSPIRE Directive formulation across the government domain organisation. Significantly higher levels of (INfrastructure for SPatial InfoRmation in in the future. The digital land register casework productivity are being achieved, Europe). also provides opportunities to streamline thus resulting in faster turnaround times for As a result of a major investment in conveyancing and surveying processes. applications. The project has also increased the information and communications technology This requires all stakeholders in the land flexibility of the organisation in dealing with over the last decade, the PRA has developed registration system to critically reassess evolving customer requirements, for example: extensive online services, which are available long-established practices in order to reap • Customers can now lodge through www.landdirect.ie. the full benefits and deliver optimum cost electronic (CAD) versions of During 2010 alone, over three savings. The implementation of compulsory application maps, “The digital million transactions were first registration in the final two counties, • There is online access to the land register processed through this web in place since June 2011, complements entire Land Registry map also provides portal. The overall modernisation these developments and will accelerate the on a national basis – this is programme across the PRA completion of the land register in Ireland. G extensively used, with almost opportunities has involved over 30 individual 600,000 map page requests in to streamline projects, the culmination of which 2010 alone, has been the digitisation of the Look it up • Official copies of maps may be conveyancing Land Registry map. Collectively, ordered online, and surveying these initiatives have resulted Legislation: • The PRA is now in a position in a successful migration from • Directive 2007/2/EC of the European to offer customers a range of processes” a national paper-based register Parliament and of the Council, 14 March new map products to best suit of ownership of property to a 2007 (INSPIRE Directive): http://inspire. their particular needs and better facilitate world-class, fit-for-purpose, state-of-the-art jrc.ec.europa.eu/ the registration process. electronic register, resulting in Ireland’s most • Land Registration Rules 1972-2009 comprehensive online national database of • Registration of Deeds and Title Act 2006 Also, the digital map now enables the PRA land-related information. • Registration of Title Act 1964 to support and participate in international This electronic register provides an developments on registration of title and land excellent basis for the delivery of additional Literature: administration across the EU and beyond, online services, paves the way for electronic • Property Registration Authority through initiatives such as the European conveyancing, and enables the PRA to Digitisation Protocol, www.prai.ie Land Information Service (EULIS) and the contribute actively to land-based policy
Before
Suffering from the cold, covered in mud and in pain from walking on his horrifically overgrown feet, poor Mossie’s future looked bleak. He will need our expert care and attention for the rest of his life.
To find out how your contribution can help prevent the suffering of donkeys and how you will be remembered for your kindness, please contact: Paddy Barrett, The Donkey Sanctuary, (Dept ILSG), Liscarroll, Mallow, Co. Cork. Charity number CHY 11617 Tel (022) 48398 Fax (022) 48489 Email [email protected] After Website www.thedonkeysanctuary.ie 38 technology Law Society Gazette www.gazette.ie October 2011
KEEP TAKING THE TABLETS Law Society Gazette www.gazette.ie October 2011 technology 39
Tablets like the iPad are changing the way lawyers work. Ian O’Flaherty, who was a guest speaker at the recent ILAI conference on the future of legal services, says that practising law on an iPad might be just what the doctor ordered
Ian O’Flaherty is president of recently read a quote by Mark in the App Store, and the iPad as a driver for Saurian Litigation Dean of IBM, who holds three of individual device sales. The reason we are really Support in Miami, IBM’s original nine PC patents: only talking about the iPad when we say the Florida, USA, and “When I helped design the PC, I word ‘tablets’ is due to that relationship. Apple’s is the developer of didn’t think I’d live long enough to head start in the tablet market has put it so far the TrialPad app witness its decline.” His statement is in the lead, it has effectively become the ‘only’. Iboth accurate and poignant. While desktop Of tablets sold worldwide through August computers aren’t going extinct (for now), 2011, the iPad has sold ten times more iPads mobile computing has than all the other tablets shifted the focal point of combined. The end result, computer development, and “One thing is clear: according to an analyst at of computer consumers. lawyers who don’t Deutsche Bank, when you Not only have developers include iPads, is that Apple and consumers taken notice, embrace tablets do now has the largest global lawyers are using it to change so at their own peril, notebook share. the way they practise. For those who have To some, the iPad was and will soon find already invested in other initially seen as a device themselves competing tablets, it is true that created to fill a gap that didn’t device manufacturers exist, but it harnesses the with those who can be and operating system mobility of the phone, in a size more productive nearly developers plan to ramp we can read, while offering up for greater sales in the functionality we normally anywhere than the last quarter of 2011. But expect from a desktop. While non-adopter can be while the silver lining may many predicted it would just be beginning to show, be another, perhaps sleeker, in the office” the cloud that blocks it is way to consume media, it has still the centre of focus. instead proven to be a game Hewlett-Packard have changer: the primary reason is apps. The decided to discontinue their TouchPad tablet, apps available on the iPad have proven to and sales of the Samsung tablet have been be the key to making the iPad go from a crippled by recent litigation around the world, consumption device – that is, reading the following claims by Apple that their tablet is news, surfing the net, and getting email – to basically a ‘fat iPad’. And IDC, a global leader TABLETS becoming a highly functional business tool. in consumer technology market research and It is important to note that there is a analysis, has predicted that iPads will continue symbiotic relationship between the iPad’s to enjoy nearly 70% of this growing market functionality being driven by the apps available through the end of 2011.
Fast facts
> How tablets are changing the practice of law Courts of Justice > The tablet harnesses the portability of the > Mobile computing is driving productivity – mobile phone and the functionality of a and is changing how lawyers work desktop computer > A recent ILTA survey found that, generally, > The ability to have a virtual office anywhere large firms with 50 or more partners are asks fundamental questions about the buying into tablet technology>> practice of law > Tablets are offering law firms new ways of > In the past five years, technology has saving on software investment been hard-wired into courtrooms across > Providers of CPD courses are also adopting the world, including Dublin’s own Criminal the tablet 40 technology Law Society Gazette www.gazette.ie October 2011
While many of the larger audience apps tech-savvy lawyer – a typical day (such as social networking, and Windows or Adobe compatibility apps) are available across Why not take a look at a typical day in the life of During lunch you receive and review platforms, the stores relevant to other tablets, an iPad-savvy lawyer? several documents in an active matter, making such as the Android-focused Market, don’t On bus or train to the office, you open comments and revisions, then emailing them compare with the variety of development your calendar app to see appointments for to your assistant for final drafting. While in Apple’s App Store. Developers, reticent the day. (The calendar app in the iPad can reviewing one document in particular, you to invest in the development process for be synced with the calendar in your office.) resolve a matter of contention by researching platforms that are subject to piracy and have Your first meeting may be a document-signing and finding the applicable caselaw online and relatively few sales compared with the iPad, at a solicitor’s office. Tap the address in the then pasting the reference into the document are still prejudiced toward developing for the calendar appointment to launch the Maps app you are reviewing. iPad. Wider development and variety in the and get turn-by-turn instructions and an estimate Afterwards, you download all the documents App Store increases the of travel time by car, public relevant to a case you are scheduled to review iPad’s ability to function transport, or walking. with a barrister this afternoon. In his office, you as a tool to any consumer “The International Legal Once at the solicitor’s connect to a flat panel monitor, present and or trade, and iPad sales Technology Association office, you access your server, discuss the key documents, highlighting and continue skyward. and download the file to sign. annotating important issues. Next week, you’ll surveyed firms in the The document can be signed plug the iPad into a connection at court and Embracing technology US, Britain, Canada, electronically, time stamped, present them to a judge electronically. It shouldn’t come as a and geo-tagged for future You get the picture. And perhaps the most surprise that lawyers and Australia for their reference, and then emailed to important part of that picture is that all of it is aren’t a group known for 2011 technology survey. all appropriate parties. not only possible, but happening now. embracing technology or change. If we were to Results showed that 25% graph the way lawyers of responding firms had have embraced different purchased tablets in the technologies in the last documents will never quite What does exponential change look like 50 years, we would see last 12 months, and an go away, paperless offices for lawyers who aren’t known for adapting the typical exponential additional 25% were and presentations are now the latest technology? It means that the iPad curve: slow and flat for a standard practice. is not to be ignored as a passing device. The short period of time, but planning to buy them in In the past five years, ability to have a virtual office anywhere asks increasingly and quickly the next 12 months” technology has been hard- fundamental questions about the practice of aiming for the ceiling. wired into courtrooms across law, ranging from the necessity of traditional In 1974, retailers the world, including Dublin’s brick and mortar offices to common billing began using barcodes to track inventory own Criminal Courts of Justice, in the and document review practices. It increases and speed up the checkout process. Only in anticipation and expectation of technology- productivity and could allow law-firm the past ten years has that same technology driven presentations of evidence. And as the overhead to shrink dramatically. Though come into widespread use in the law to legal world begins to embrace electronic mobile computing has started calling into track scores of pages of lever arch folders presentation of evidence, the curve in the question the traditional lawyering model, full of documents. And while, much like graph of technology in the law takes an definitive answers remain hazy. One thing the desktop computer, printing pages of undisputed turn northward. is clear: lawyers who don’t embrace it do so at their own peril, and will soon find themselves competing with those who can be more productive nearly anywhere than the non-adopter can be in the office.
Changing the game Productivity is a wonderful reason to adopt new technology, but it is ease of adaptability that explains the vertical turn in our graph. Unlike other technologies, the iPad is not just for the tech-minded or the young or trainable. The iPad was made for those with no interest in unnecessary irritation and complexity. It streamlines, and as a result, experienced lawyers who haven’t quite warmed up to the PC are happy to open and use an iPad. There is virtually no learning curve, and no barrier to accessing exactly what you want, when you want it. Simply put, it is technology that doesn’t get in the way of its use. Another reason for the sudden exponential growth of mobile computing in the law is that The iThoughts mind mapping app it is not merely a lawyer-by-lawyer adoption. Law Society Gazette www.gazette.ie October 2011 technology 41 This past August, the International Legal Birmingham, Alabama, received a growing plethora of options are available, all Technology Association (ILTA) surveyed $37.5 million verdict using TrialPad for very affordable for a small or solo firm. At firms in the US, Britain, Canada, and iPad. The plaintiffs’ steering committee time of writing, there were 5,259 apps in the Australia for their 2011 technology survey. for the BP oil disaster in the Gulf of Mexico business category of the App Store, and 3,572 Results showed that 25% of responding firms has also been using TrialPad for in the productivity category. With new apps had purchased tablets in the last 12 months, collaboration, document review, and being created every day, it can be guaranteed and an additional 25% were planning to buy presentations. that there are more as you read this. them in the next 12 months. Perhaps more Providers of continuing professional Do-it-yourself app research is not only revealingly, 55% of firms are using in-house development courses are also adopting the possible, it is easy and expected. Commentary IT resources to support iPads purchased by tablet. Most jurisdictions in the US allow from current users, including ratings, can be employees. lawyers to download an approved podcast found on the App Store, and several blogs are Legal iPad adopters are not mavericks. The for credit. The Law Society of Ireland has dedicated to app reviews. In the ‘Look It Up’ firms surveyed by ILTA were, generally, large recently begun an iPad pilot project, offering panel, I’ve included a short list of apps that firms with 50 or more partners. Recently, a Commercial Contracts Certificate this are popular and useful in the legal profession, James Moncus III and Matthew Minner, November, to be delivered online and onsite, as well as some legal iPad blogs with excellent of Hare, Wynn, Newell & Newton in using the iPad (see page 7). reputations and a couple of articles of note. Tablets additionally offer easy methods of Consumers the world over have recognised shopping for law firm software applications that the future of computing is not only here, background to trialpad – no sales person asking you to buy software it is inexpensive, easy and convenient. And, that also requires investment in a server, or unlike past decades, the legal field is right on The developer of the TrialPad app, Saurian costly subscriptions and updates. An ever their heels. G Litigation Support Ltd, claims that its app helps to maximise presentations before the court, while minimising the time spent doing so. Look it up “After many years assisting lawyers to electronically present matters of all sizes, Useful legal apps: Microsoft Office documents) I’ve seen what works, and what lawyers are • Court Days Pro (date calculator) • Reeder for iPad (RSS reader) willing to learn to advocate for their clients • Digits (calculator) • Sign My Pad Pro (add text, date, geotag info at court,” says Ian O’Flaherty. • Dragon Dictation (dictation) and signature to PDF) “After purchasing an iPad in early 2010, • Dropbox (cloud based storage) • Skype (VOIP phone calls and video I recognised that the rules as we know • Flipboard (news aggregator) conferencing) them were about to change. The iPad had • GoodReader (document viewer) • TrialPad (legal file management and the potential to be the laptop, the ‘cloud’ • Google Translate (translator) presentations) and complicated software applications – all • iLegal (offline access to UK legislation) rolled into one, and all made easy. • iThoughts HD (mind mapping) Blogs: “Since it was already looking to replace • Keynote (presentations) • www.iphonejd.com three of my areas of expertise, I figured I • LogMeIn Ignition (remote access to • www.tabletlegal.com should replace a fourth. So I developed a server) legal-file management and presentation app. • Numbers (spreadsheet) Articles: TrialPad was completed in late 2010, and, • OmniOutliner (outliner to organise • Law Technology News link: www.law.com/ following the aforementioned expectation of thoughts and ideas) jsp/lawtechnologynews/PubArticleLTN. electronic presentation of evidence, TrialPad • Pages (word processor) jsp?id=1202496710945 has been downloaded in over 20 different • PDF Expert (document editor) • Law Technology News link: www.law.com/ countries. The United States, Britain, • Penultimate (note taking) jsp/lawtechnologynews/PubArticleLTN.jsp? Canada, Australia, and New Zealand rank in • PlainText (text editor) id=1202508346768&Persuading_a_Jury_ the top five of TrialPad users.” • Quickoffice Pro HD (view and edit With_an_iPad_and_an_App
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42 obituary Law Society Gazette www.gazette.ie October 2011
Judge con murphy 1960 – 2011 An appreciation
On 1 August last, an entire colleagues, An Garda Síochána, community was shocked upon and members of the public at hearing of the sudden death of large who, in whatever capacity, Judge Con Murphy. appeared before him. He always The thousands of people who brought his common sense queued during the obsequies, (with which he was endowed in many for hours, to extend their abundance) to bear. Courteous condolences to his much-loved in the extreme, ever patient, he wife Miriam, to his mother would often bring his trademark Teresa, to his brothers Dan sense of humour to bear where and Phil and to his sister appropriate. Margaret, bore testimony to He was a lover of classical his immense popularity in the music and art and a voracious community. The attendance of reader, particularly of British many members of the judiciary, and Irish history, biography and the Bar and former solicitor autobiography. colleagues, from near and far, Con was involved in politics exemplified the respect that from an early age. He served he commanded in the legal three terms as a member of the profession. Bandon Town Commissioners Con (as he was known to all) (as it then was), on each occasion was born in Bandon on 5 April attaining over twice the required 1960. Having attended national quota, and was elected chairman school and the Hamilton High on four occasions. He served as School, Bandon, he subsequently a successful director of elections read law at UCC, gaining a for Fianna Fáil in the Cork BCL degree in 1981. He served South West constituency on his apprenticeship at R Neville many occasions, especially for & Co, Bandon, qualifying as a his friend Joe Walsh, former solicitor in 1984. Con and James Minister for Agriculture and Long set up a partnership in Food. His political nous and 1987, which continued until Con and they married in 1988. They hurling team to county honours ability to garner votes was the was appointed a Circuit Court were devoted to one another, in 1995. envy of others. judge in November 2004. and Con was always happiest in Following his appointment A master of the pithy During his career as a her company. And that is how he as a Circuit Court judge, he observation, with a passion solicitor, he showed an spent his time a short few hours immersed himself in his new task for life, Con was a Gaelgóir, enormous capacity for work, before he was called from us. with great energy. His first sitting historian, philosopher, wit serving as president of the A proud Bandonian, he fully was at the Four Courts. On and raconteur, a family man, West Cork Bar Association and immersed himself in numerous that day, he dealt with 114 State loyal friend and – above all – a as a member of the Refugee local clubs and associations. appeals effortlessly. Following a wonderful husband to his beloved Appeals Tribunal for a number His passion for sport, period as a travelling judge, he Miriam. of years. As a solicitor, he especially the art of hurling, was was appointed as a permanent With Con’s passing, Miriam was a formidable but fair legendary. Having gained many judge in the Cork Circuit in has lost her husband and best adversary. His huge client base honours as an underage player, February 2007, where he sat friend, his family have lost their extended across all sections he then involved himself in the until his death. While there, he pride and joy, jurisprudence has of the community. He had an administration and management presided over many high-profile, lost a talent, and we have all lost innate respect for his fellow of his beloved Bandon GAA lengthy and complex cases. He a friend. human beings, and his ability to Club for many years. One of quickly gained the unstinting Ní bheidh a leithéid ann arís. G empathise was astonishing. his proudest achievements was respect of his fellow judges, Con met Miriam in 1986 coaching the Bandon minor members of the Bar, former JL Law Society Gazette www.gazette.ie October 2011 people and places 43 P ic : G arrett F it zG erald hotography Waterford Law Society
At the Waterford Law Society meeting in the Granville Hotel, Waterford, on 26 September 2011 were: (front, l to r): Ellen Hegarty, Helen Bowe O’Brien, Donald Binchy (Vice-President of the Law Society), John Costello (President of the Law Society), Gerard O’Herlihy (President, Waterford Law Society), Ken Murphy (Law Society Director General), Gerard O’Connor, Rosa Eivers and Siobhan Geraghty. (Back, l to r): Jim Hally, Kieran Higgins, Frank Heffernan, Neil Breheny, Tom Murran, Myles O’Connor, Marie Dennehy, Conchur Lavelle, Donal O’Connell, Derry O’Carroll, John Purcell, Kerri O’Shea, Jo Geary, Morette Kinsella and Nicholas Walsh
‘Leman 500’ races to €10k
The Sligo Bar Association joined with the Leitrim and Roscommon Bar Associations to host the inaugural ‘Philly McGuinness Memorial Cup Match’ in Sligo recently. The event raised funds for the Philly McGuinness Memorial Park, Mohill, Co Leitrim. Winners Leitrim/Roscommon were presented with their trophy by Judge Kevin Kilrane. For more information on the park’s fundraising events, visit www.facebook.com/pages/Philly-McGuinness-page/115198441837420
on the move
Popping open the champagne in Eyre Square following their Dublin to Galway Aoife Robert cycle were (l to r): Declan Tormey, John Hogan, Larry Fenelon, Maria Edgeworth, awarded McDonagh Gavin Bluett and John Walsh (all of Leman Solicitors) doctorate promoted to in environ- Seven solicitors and trainees on Haddington Road, Dublin partner mental law Mason Hayes from Leman Solicitors in Dublin (www.sixt.ie), as well as Lemans Aoife & Curran between them embarked on a itself. Shields, has further 500km charity cycle for Our The firm had aimed to raise who strengthened Lady’s Hospital for Sick Children, €5,000 for Our Lady’s Hospital, practises in its commer- Crumlin, on 24 September. The but it looks like sponsorship will Ronan Daly cial practice group left Dublin at 6.30am and double that figure, due to the Jermyn’s environmental law group with the promotion of Robert in Cork, has been awarded an EPA- arrived in Galway at 6pm on 24 excellent response from friends, McDonagh to partner. Robert funded PhD by UCC for advises public and private sector September. clients and colleagues. her thesis, The Need for a clients in relation to commercial All costs associated with the It’s not too late to support this Dedicated Legal Regime for the contracts and outsourcing, cycle were covered by Wheelworx worthy cause. You can donate by Management of Contaminated information technology, intellectual in Lucan, Co Dublin (www. visiting: www.cmrf.org/donate/cre Land in Ireland. property and data protection. wheelworx.ie) and Sixt Car hire ditCard?sponsorshipPageID=805. 44 reading room Law Society Gazette www.gazette.ie October 2011 New archive for your library FAQs
Answers to the library’s most frequently asked questions are now available on the ‘library services’ page in the members’ area of lawsociety.ie
Eddie Mackey (LexisNexis), Practical Commercial is executive Precedents (Thomson Reuters), and assistant Laffoy’s Irish Conveyancing Precedents, librarian at the the latter recently launched on the Law Society of new Irish property service from Ireland Bloomsbury Professional Online. The service is designed to support small to medium-sized practices that would not ordinarily subscribe to these databases. ibrary staff deal with a wide A large selection of precedents is variety of questions on a also available in PDF format from other Ldaily basis. Queries can publications. Please contact the library for range from straightforward requests further information (tel: 01 672 4843/4 or for information on practice notes, email: [email protected]). G Gazette articles, law reports and book loans, to more complicated Just published requests that require further research and a call back. Quite often, information that New books available to borrow is requested is available freely • Anderson, Jack et al, Anti-Social Behaviour Law • Johnson, Helen, Guide to Trademark Law and on a website, and the staff can (Bristol: Jordans, 2011) Practice in Ireland (Haywards Heath: Bloomsbury direct members to a specific URL • Barnes, Robin D, Outrageous Invasions: Celebrities’ Professional, 2011) address. The members’ area on Private Lives, Media and the Law (New York: OUP, • Keating, Albert, Jurisprudence (Dublin: Round Hall, the Law Society’s website is a 2010) 2011) very useful source for guidance • Beauchamps Solicitors, Employment Law Contracts • Loughlan, Patricia, Celebrity and the Law (Sydney: notes, precedent documentation and Policies (Dublin: Round Hall, 2011) Federation Press, 2010) and access to the online library • Bergin, John (ed), New Perspectives on The Penal • McGowan-Smyth, Jacqueline and Eleanor Daly, catalogue. Laws (Dublin: Eighteenth Century Ireland, 2011) Irish Company Secretary Handbook (Haywards We are frequently asked a range • Beyerlin, Ulrich, International Environmental Law Heath: Bloomsbury Professional, 2011) of similar questions, and a list (Oxford: Hart, 2011) • McGreal, Cathal, Criminal Justice (Theft and Fraud of these questions and answers • Brest, Paul et al, Problem Solving, Decision Making Offences) Act 2001: Annotated and Consolidated is now available on the ‘library and Professional Judgment: a Guide for Lawyers (2nd ed) (Dublin: Round Hall, 2011) services’ page in the members’ area. and Policymakers (Oxford: OUP, 2010) • McMullen, John, Redundancy: the Law and Questions such as: ‘Where can I • Department of Children and Youth Affairs, Listen Practice (3rd ed) (Oxford: OUP, 2011) find the family home declaration to our Voices! Hearing Children and Young People • Marchini, Renzo, Cloud Computing: a Practical relating to civil partnerships?’, Living in the Care of the State (Dublin: Stationery Introduction to the Legal Issues (London: BSI, ‘What forms do I need for enduring Office, 2011) 2010) powers of attorney?’, ‘Why can’t I • Egan, Suzanne, The UN Human Rights Treaty • Murphy, Yvonne, Journalists and the Law (3rd ed) get a hard copy of the Legal Diary System: Law and Procedure (Haywards Heath: (Dublin: Round Hall, 2011) in recent weeks?’; ‘How do I use the Bloomsbury Professional, 2011) • Oliver, Dawn and Carlo Fusaro, How Constitutions library app?’ – a range of questions • Feeney, Michael, The Taxation of Companies (2011 Change: a Comparative Study (Oxford: Hart, 2011) about accessing and getting the best ed) (Haywards Heath: Bloomsbury Professional, • Report of the Commission of Investigation into the use from the members’ area, library 2011) Catholic Diocese of Cloyne (Dublin: Department of catalogue and other library services • Forde, Evelyn, Taxation of Company Reorganisations Justice and Law Reform, 2011) are covered. in Ireland (Haywards Heath: Bloomsbury • Shapland, Joanna et al, Restorative Justice in Professional, 2011) Practice: Evaluating What Works for Victims and Electronic precedents • Foster, Nigel (ed), Blackstone’s EU Treaties and Offenders (London: Routledge, 2011) The library is licensed to supply Legislation 2011-2012 (Oxford: OUP, 2011) • Spierin, Brian E, The Succession Act 1965 and precedents electronically in • Howard, Gillian, Drafting Employment Contracts Related Legislation: a Commentary (4th ed) MS Word format from The (2nd ed) (London: Law Society, 2010) (Haywards Heath: Bloomsbury Professional, 2011) Encyclopedia of Forms and Precedents Law Society Gazette www.gazette.ie October 2011 council report 45 briefing Law Society Council meetings 1 and 15 July 2011
Motions: professional dates, specific requirements in which had been held on 11 July uneconomic for solicitors in indemnity insurance relation to run-off cover, the 2011. The Society had been country areas to travel to remote 1) “That this Council agrees to ‘succeeding practice’ rule, risk- represented by the president, District Courts, in circumstances consider the PII Task Force management guidance and the senior vice-president and where the travel expenses recommendation of a master Assigned Risks Pool. director general. The Society allowed to the solicitor were a policy at its meeting to be held The amended draft PII Regu- had discussed, in broad terms, fraction of the rates allowed to on Friday 9 December 2011. lations were approved by the the issues that needed to be the civil servants manning those That this Council agrees that, in Council at its meeting on 15 July addressed in the bill. The District Courts. the interim, the Society should 2011. minister had emphasised many The submission emphasised continue to develop the master times at that meeting that no the unilateral and arbitrary policy proposal and should also Council election dates final decisions had yet been decision to sever the link be- explore all options open to it to As required by the bye-laws, taken by him in relation to the tween criminal legal aid defence improve the renewal process for the Council approved Monday bill’s contents. He had indicated fees and fees paid to prosecution the indemnity period commencing 26 September 2011 as the final that he wished to meet again counsel. The submission formal- on 1 December 2011, including date for receipt of nominations with the Society, perhaps in early ly requested that the minister the introduction of amendments for the Council election, and September. In the meantime, include a representative of the to effect improvements in the Thursday 3 November 2011 as the Society was encouraged to solicitors’ profession on the task minimum terms and conditions, the close-of-poll date. engage with his officials. force, which seemed to comprise the qualified insurers agreement only departmental officials. and the PII Regulations. Report on SGM Postal ballot on SMDF The Society had also sought 2) “That this Council approves the The president noted that there The Council noted that the an explanation of the basis on introduction of amendments to the had been a full Presidents’ Hall postal ballot on the SMDF had which the department sought minimum terms and conditions, and an excellent debate at the yielded a positive result, with to impose a two-year deadline the qualified insurers agreement special general meeting held 62% of those voting supporting on the payment of fees properly and the PII Regulations, as set on the previous evening. In the proposal. arising and due to a service out in the schedule circulated.” particular, he thanked those provider, noting that there were who had spoken on behalf of the Criminal legal aid many instances where judges Proposed: Eamon Harrington Society’s two task forces – John The Council approved a adjourned matters for lengthy Seconded: Stuart Gilhooly D Shaw and Niall Farrell – who submission to the Department periods in order to monitor the had outlined the issues facing of Justice expressing opposition behaviour of a defendant. At the meeting on 1 July 2011, both task forces with clarity and to the further proposed In conclusion, the submission Eamon Harrington briefed the balance. reduction of 10% in criminal sought a meeting with the min- Council in detail in relation to legal aid fees and outlining the ister at the earliest opportunity. proposed amendments to the EU/IMF proposals Society’s specific objection to PII scheme, which would effect At the meeting on 1 July, the the lack of consultation with the eConveyancing Task Force significant improvements in PII Council noted a letter to the new profession, particularly given The chairman and members of arrangements for the benefit of Minister for Justice seeking a the comprehensive document the eConveyancing Task Force the public and which would also meeting to discuss the EU/IMF proposing efficiencies and made a presentation to the result in improved indemnity proposals in relation to the legal savings that had been submitted Council on the work of the task arrangements for firms. He profession regarding (a) reg- by the Society in recent months. force, including the milestones reported on a recent meeting ulation and (b) legal costs. The submission also emph- to date and the proposed ‘next with the insurers, at which The letter emphasised that asised the excessive nature of steps’ and recommendations the Society had emphasised the Society wished to engage the cuts, the constitutional right of the task force, which were the fact that a master policy constructively with the minister to legal representation, the fact approved by the Council. was still under consideration in relation to these issues and that criminal defence solicitors and that, if the forthcoming would welcome the earliest were being expected to provide Guide to Professional Conduct renewal process did not address opportunity to do so. services for levels of fees well The Council approved a propos- the myriad of shortcomings In terms of the Society’s pol- below those paid by the State al that the new draft guide, ex- endured during the previous two icy position on regulation, it in other areas, the fact that no cluding Chapter 3 on conflicts of periods, the Council would not was agreed that, as a matter of other profession had to endure interest, should be circulated to hesitate to pass the motion on a principle, any regulatory system cuts of such a magnitude, and the profession at the earliest date master policy, which would be should not encroach upon the that no equivalent levels of cuts in early autumn for their com- considered at its meeting on 9 independence of the profession had been applied to other parts ments and suggestions. It was December. and should not involve a dispro- of the Department of Justice’s agreed that Chapter 3 should Mr Harrington highlighted portionate level of costs. budget. be withheld, pending the delib- a number of matters, includ- At the meeting on 15 July, In addition, the submission erations and recommendations ing agreement on a common the Council were briefed on emphasised that the combination of the Conveyancing Conflicts proposal form, variable renewal the meeting with the minister, of cuts would render it Task Force. G 46 practice notes Law Society Gazette www.gazette.ie October 2011 briefing Practice notes Notice to all practising solicitors: practice names The attention of all practising requirement does not apply to will be that the name could c) A meaning that the normal solicitors is drawn to regulation any name that was in use on reasonably convey to solicitors business of the solicitor or firm 4 of SI no 178 of 1996 – Solicitors 1 July 1996. and/or non-solicitors generally of solicitors concerned has (Practice, Conduct and Discipline) The function of approving any one or more of the following more extensive geographical Regulations 1996 – which professional names under meanings: coverage than it actually has, provides that the name of the these regulations is vested in a) A meaning likely to bring or practice under which a solicitor the Regulation of Practice the solicitors’ profession into d) A meaning otherwise or a firm of solicitors carry on Committee, and applications for disrepute or that is in bad taste misleading to clients, potential business shall consist only of the approval should be addressed to or that reflects unfavourably clients or the wider public, name or one of the names of the the Registrar of Solicitors. on other solicitors, or otherwise contrary to the solicitors, or one or more of the In cases where the committee b) A meaning that the solicitor public interest. present or former principals of does not approve a name or firm of solicitors concerned the firm, as the case may be, or application, the committee will has specialist knowledge in any John Elliot, such other name as is approved state its grounds for withholding area of law or practice superior Registrar of Solicitors and in writing by the Society. This approval. Generally, the grounds to that of other solicitors, Director of Regulation
Funeral expenses are the priority debt payable from Criminal Legal Aid Panel – the assets of the deceased tax clearance certificates Criminal Law Committee PROBATE, ADMINISTRATION AND TRUSTS COMMITTEE Members who wish to retain tax clearance certificate to Practitioners are reminded that the request for payment from their name on the Criminal the county registrar for each the funeral expenses are the the funeral director. Legal Aid Panel for the legal of the counties in which the priority debt payable from the In the event that there are aid year 1 December 2011 to solicitor wishes to be eligible assets of the deceased in each no liquid assets available to 30 November 2012 are for legal aid assignments, as and every estate. discharge the funeral account required to hold a tax clearance the registrar will be able to The committee recommends until non-liquid assets have certificate with an expiry date view the certificate online that, if the practitioner with been realised following later than 30 November 2011. and print it down for his/her carriage of administration of extraction of the grant of Applications for tax clearance file if necessary. Please note the estate is in funds, then, representation, or if there certificates can be made in that online verification is not upon receipt of a request for is some other difficulty in writing (form TC1) to local available unless the application payment of the funeral account, obtaining the requisite funds district offices of Revenue for tax clearance has also been it should be settled without from the estate, then this or via Revenue’s online tax made online. delay. Moreover, the committee should be communicated to the clearance application facility Where application for a tax reminds practitioners that, funeral director, together with (www.revenue.ie). At the clearance certificate is made if the deceased left a bank an estimate of when payment time of making an online in writing to the local district account with sufficient funds to may be likely. application, there is an option Revenue office, solicitors must discharge the funeral account, The funeral director should available whereby the taxpayer submit the original certificate then, upon production of the also be provided with the may elect to allow a third to the county registrar for each funeral director’s invoice, it is name and address of the legal party to electronically verify of the counties in which the the practice of most banks to personal representative(s), the taxpayer’s tax clearance solicitor wishes to be eligible provide a bank draft payable in case the funeral director status. This facility is secure for legal aid assignments. Copy to the funeral director in needs to make personal contact and can only be accessed certificates are not acceptable. satisfaction of the funeral with them in relation to the with the permission of the Members should note that account, without requiring a funeral account. Where such taxpayer. In such cases, the no fees will be payable to grant of representation. difficulties arise, it may be taxpayer provides his/her tax a solicitor who accepts an Accordingly, if not already in worth considering whether clearance number and his/ assignment to a case if his/ funds, a request for payment of there are other options her customer number to the her name is not, at the time of the funeral account should be available to enable discharge third party. This obviates the assignment, on the relevant made to the bank promptly by of the funeral account pending necessity to send the original solicitors’ panel. practitioners upon receipt of administration of the estate. Law Society Gazette www.gazette.ie October 2011 legislation update 47 briefing Legislation update 23 July – 9 September 2011
Details of all bills, acts and statutory instruments since 1997 particular white-collar crime. The Justice Act 1947 and provides for are on the library catalogue – www.lawsociety.ie (members’ and bill also addresses two matters rel- related matters. students’ area) – with updated information on the current stage a ating to the investigation of offenc- Enacted: 26/7/2011 bill has reached and the commencement date(s) of each act. All es more generally: (i) refinements Commencement: Commence- recent bills and acts (full text in pdf) are on www.oireachtas.ie to the processes around the con- ment order(s) to be made (per stitutional/European Convention on s12(3) of the act) and recent statutory instruments are on a link to electronic Human Rights entitlement of a per- statutory instruments from www.irishstatutebook.ie son in garda custody to access legal Electoral (Amendment) Act 2011 advice, and (ii) the circumstances Number: 14/2011 acts passed Registration of Title Act 1964, the in which a person detained under Content: Provides for the revi- Child Care (Amendment) Act law relating to tribunals of inquiry, section 4 of the Criminal Justice Act sion of the terms of reference of 2011 and certain other enactments, and 1984 may be questioned between a Constituency Commission, puts Number: 19/2011 provides for related matters. midnight and 8am. a time limit on the calling of bye- Content: Provides for the High Enacted: 2/8/2011 Enacted: 2/8/2011 elections to fill vacancies in Dáil Court to have statutory jurisdic- Commencement: 2/8/2011 for Commencement: Commence- Éireann, and reduces the spending tion to hear applications by the all sections except sections 6, 12 ment order(s) to be made (per limits and the level of election ex- Health Service Executive for spe- and 13(g) and sections 49 to 55, s1(2) of the act) penses that can be reimbursed to cial care orders or interim special for which commencement order(s) a candidate at a presidential elec- care orders and related matters will be made (per s1(10) of the act) Criminal Justice Act tion. in respect of children where their (Community Service) Enacted: 25/7/2011 welfare may require their deten- Communications Regulation (Amendment) (No 2) Act 2011 Commencement: 25/7/2011 tion in a special care unit. Provides (Postal Services) Act 2011 Number: 24/2011 that special care units will be in- Number: 21/2011 Content: Introduces a require- Environment (Miscellaneous spected under the Health Act 2007. Content: Provides for the regu- ment on a court, before which an Provisions) Act 2011 Amends and extends the Child lation of postal services, the offender stands convicted of an Number: 20/2011 Care Act 1991, amends the Chil- implementation of EC Direc- offence for which a sentence of Content: Amends and extends the dren Act 2001, the Health Act 2004 tive 2008/6, amending EC Direc- up to 12 months’ imprisonment Air Pollution Act 1987, the Waste and the Health Act 2007. Provides tive 97/67 with regard to the full would be appropriate, to consider Management Act 1996, and the for the dissolution of the Chil- accomplishment of the internal imposing the alternative sentence Freedom of Information Act 1997, dren Acts Advisory Board and the market of community postal ser- of a community service order. and provides for related matters. transfer of its assts, liabilities and vices, confers additional functions Enacted: 2/8/2011 Enacted: 2/8/2011 employees to the Minister for on the Commission for Com- Commencement: 2/8/2011 for Commencement: Commence- Health and Children. Repeals part munications Regulation, ensures section 13; commencement ord- ment order(s) to be made (per 11 of the Children Act 2001 and the provision of a universal postal er(s) to be made for other sections s1(5) of the act). provides for related matters. service, provides for the designa- (per s14(3)). Enacted: 31/7/2011 tion of a universal postal service Finance (No 3) Act 2011 Commencement: 31/7/2011 for provider, provides financial sup- Defence (Amendment) Act 2011 Number: 18/2011 sections 7 and 49, commencement port for universal postal provision, Number: 17/2011 Content: Amends and extends order(s) to be made for other sec- provides for the authorisation of Content: Amends the Defence the Taxes Consolidation Act 1997, tions (per s1(6) of the act) postal service providers, provides Acts by providing for an expansion the Stamp Duties Consolidation Act for enforcement measures, pro- of the potential candidature for 1999, the Capital Acquisitions Tax Civil Law (Miscellaneous vides for the establishment, opera- appointment to the post of mili- Consolidation Act 2003 and the Provisions) Act 2011 tion and maintenance of a system tary judge and the Director of Value-Added Tax Consolidation Act Number: 23/2011 of postcodes, and provides for re- Military Prosecutions to persons 2010 in relation to the taxation of Content: Amends the law relat- lated matters. other than members of the De- civil partners and cohabitants as a ing to civil liability for acts of good Enacted: 2/8/2011 fence Forces and for the appoint- consequence of the Civil Partner- Samaritans, volunteers and vol- Commencement: 2/8/2011 ment of a Circuit judge to perform ship and Certain Rights and Obliga- unteer organisations; amends the the functions of the military judge tions of Cohabitants Act 2010, and Civil Legal Aid Act 1995, the Pri- Criminal Justice Act 2011 where the military judge is not provides for connected matters. vate Security Services Act 2004, the Number: 22/2011 available for whatever reason. Also Enacted: 27/7/2011 law relating to the sale of intoxicat- Content: Amends the criminal provides for an amendment to the Commencement: Various – see ing liquor, the Employment Equal- law to improve certain procedural powers of the selection commit- act ity Act 1998, the Equal Status Act matters and strengthen garda in- tees established for the purposes 2000, the Bankruptcy Act 1988, the vestigative powers. The intention of selecting a suitable candidate Public Health (Tobacco) Family Law (Maintenance of Spouses is that such improvements will for appointment to the posts of (Amendment) Act 2011 and Children) Act 1976, the Coro- assist in reducing the delays asso- Director of Military Prosecutions Number: 15/2011 ners Act 1962, the Land and Con- ciated with the investigation and and military judge, respectively. Content: Amends section 38 (as veyancing Law Reform Act 2009, the prosecution of complex crime, in Amends and extends the Courts of amended by section 6 of the Public 48 legislation update Law Society Gazette www.gazette.ie October 2011 briefing
Health (Tobacco) (Amendment) Act Circuit Court (Fees) Order 2011 payable under the Criminal Legal District Court (Fees) Order 2011 2009) of the Public Health (Tobacco) Number: SI 407/2011 Aid Scheme to solicitors for atten- Number: SI 408/2011 Act 2002 to enable the minister Content: Provides for revised fees dance in the District Court and for Content: Provides for the fees to make regulations to introduce to be charged in the Circuit Court appeals to the Circuit Court, and to be charged in District Court combined text and photo warnings offices. for a decrease in the fees paid to offices with effect from 22 August on tobacco products. Commencement: 22/8/2011 solicitors and counsel in respect of 2011. Enacted: 25/7/2011 essential visits to prisons and other Commencement: 22/8/2011 Commencement: 25/7/2011 Circuit Court Rules (Civil custodial centres (other than garda Partnership and Cohabitation) stations) and for certain bail appli- Enforcement of Court Orders Residential Institutions Redress 2011 cations, as follows: 10% with effect (Legal Aid) (Amendment) (Amendment) Act 2011 Number: SI 385/2011 from 13 July 2011; (2) an amend- Regulations 2011 Number: 16/2011 Content: These rules insert a ment to the structure of the ‘first Number: SI 363/2011 Content: Amends section 8 of new order 59A in the Circuit Court day of hearing fee’, where the full Content: These regulations pro- the Residential Institutions Redress Rules, to prescribe the procedure rate will apply to the first two cases vide for a decrease in the fees Act 2002 to provide that the in respect of civil partnership law represented by the solicitor on any payable in proceedings on a sum- Redress Board shall not consider proceedings, within the meaning one day and a reduced rate will ap- mons under section 6 (inserted by an application made on or after 17 of section 139 of the Civil Partner- ply for the third and subsequent section 2 of the 2009 act) of the September 2011, and provides for ship and Certain Rights and Obliga- cases on any one day; (3) a reduc- Enforcement of Court Orders Act related matters. tions of Cohabitants Act 2010, and tion of 50% for payments in respect 1940 (including that section as ap- Enacted: 25/7/2011 proceedings under part 15 of that of travel and subsistence; (4) clarifi- plied by section 8 (as amended by Commencement: 25/7/2011 act (‘cohabitation proceedings’). cation of the basis upon which the the said section 2) of the 1940 act Commencement: 13/8/2011 solicitor assigned in pursuance of a as follows: 10% with effect from SELECTED STATUTORY certificate for free legal aid may be 13 July 2011. INSTRUMENTS Criminal Justice Act 2011 represented by another individual Commencement: 13/7/2011 Child Abduction and (Commencement) Order 2011 and confirmation that the fees and Enforcement of Custody Orders Number: SI 411/2011 expenses payable shall be made to Environment (Miscellaneous Act 1991 (Section 4) (Hague Content: Appoints 9/8/2011 as the assigned solicitor only. Provisions) Act 2011 Convention) Order 2011 the commencement date for part 1 Commencement: 13/7/2011 (Commencement of Certain Number: SI 400/2011 (other than s5), ss7 (other than Provisions) Order 2011 Content: Section 4 of the Child paragraph (c)) and 8, part 3 and Criminal Justice (Theft and Number: SI 433/2011 Abduction and Enforcement of Cus- schedules 1 and 2 of the act. Fraud Offences) Act 2001 Content: Appoints 23/8/2011 tody Orders Act 1991 enables the Commencement: 9/8/2011 (Commencement) Order 2011 as the commencement date for Minister for Foreign Affairs to Number: SI 394/2011 ss1-14, 20, 21, 43-47 of the act. declare which states are contract- Criminal Justice Act 1984 Content: Appoints 1/8/2011 as the Commencement: 13/7/2011 ing states to the Convention on the (Suspension of Detention under commencement date for s57 (provi- Civil Aspects of International Child Section 4(3A)) Regulations 2011 sion of information to juries) of the Health (Charges for In-Patient Abduction, done at The Hague on Number: SI 416/2011 act. Services) (Amendment) 25 October 1980, and that a dec- Content: Provides in relation to Regulations 2011 laration or reservation has been procedures that are to apply where District Court (Civil Partnership Number: SI 382/2011 made to the Ministry of Foreign a person’s detention is being sus- and Cohabitation) Rules 2011 Content: These regulations Affairs of the Kingdom of the pended under s4 of the Criminal Number: SI 414/2011 amend the Health (Charges for Netherlands. This order specifies Justice Act 2011. Content: Inserts a new order 54A In-Patient Services) Regulations which states are contracting states Commencement: 9/8/2011 in the District Court Rules to pre- 2005 to set the charge for those re- and sets out the texts of the decla- scribe the procedure in respect of ceiving in-patient services where rations and reservations that have Criminal Justice (Legal Aid) civil partnership law proceedings 24-hour nursing care is provided been received by the Ministry of (Amendment) Regulations 2011 within the meaning of the Civil at the weekly rate shown in sched- Foreign Affairs of the Kingdom of Number: SI 362/2011 Partnership and Certain Rights and ule 1 (up to a maximum of €175) the Netherlands. Content: These regulations pro- Obligations of Cohabitants Act 2010. and to set the charge for those Commencement: 20/7/2011 vide for: (1) a decrease in the fees Commencement: 3/8/2011 receiving in-patient services
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The Law Society’s e-zine is the legal newsletter of the on the Law Society’s website at www.lawsociety. solicitors’ profession. The e-zine issues once every ie. Click on the ‘e-zine and e-bulletins’ section in the two months and brings news and information directly left-hand menu bar and follow the instructions. You will to your computer screen in a brief and easily-digestible need your solicitor’s number, which is on your 2010 manner. If you’re not receiving the e-zine, or have practising certificate and can also be obtained opted out previously and would like to start receiving it by emailing the records department at: again, you can sign up by visiting the members’ section [email protected]. Law Society Gazette www.gazette.ie October 2011 legislation update 49 briefing
where 24-hour nursing care is not One to watch provided at the weekly rate shown in schedule 2 (up to a maximum of €130). One to watch: new legislation Commencement: 23/7/2011 Criminal Justice Act 2011 to them, if the judge is satisfied Concealing facts The Criminal Justice Act 2011 that: Section 17 relates to the Medical Practitioners came into effect on 9 August • There are reasonable grounds concealing of facts and states: (Amendment) Act 2011 2011. The new act seeks to for suspecting that a person “Any person who (a) knows or (Commencement) Order 2011 address the current gap in the has possession or control suspects that an investigation Number: SI 388/2011 legislation regarding white- of particular documents or by the Garda Síochána into a Content: Appoints 19/7/2011 as collar crimes. The act addresses documents of a particular relevant offence … is being the commencement date for those offences in the following areas: description, or is likely to be carried out, sections of the act not already • Banking, investment of funds • There are reasonable grounds and (b) falsifies, conceals, commenced. and other financial activities, for believing that the destroys or otherwise disposes • Company law, documents are relevant to the of a document or record which Road Traffic (Restraint Systems • Money laundering and financ- investigation of the relevant he or she knows or suspects in Organised Transport of ing terrorism, offence concerned, is or would be relevant to Children) Regulations 2011 • Theft and fraud, • There are reasonable grounds the investigation or causes Number: SI 367/2011 • Bribery and corruption, for suspecting that the or permits its falsification, Content: These regulations make • Competition and consumer pro- documents (or some of them) concealment, destruction or restraint systems of an acceptable tection, may constitute evidence of or disposal, shall be guilty of an standard mandatory for all passen- • Criminal acts involving the use relating to that offence, and offence.” gers accommodated in a category of electronic communication • There are reasonable grounds M2 and M3 vehicle that is in- networks and information sys- for believing that the Withholding information volved in the organised transport tems or against such networks documents should be produced Section 19 relates to withholding of children. These regulations also or both, and or that access to them should information. It states: “A person require the restraint systems of a • The raising and collection of be given, having regard to the shall be guilty of an offence if he category M2 and M3 vehicle in- taxes and duties. benefit likely to accrue to the or she has information which he volved in the organised transport investigation and any other or she knows or believes might of children to be maintained in a Order to produce documents relevant circumstances. be of material assistance in (a) fit-for-purpose state. According to section 15, a mem- preventing the commission by Commencement: 31/10/2011 ber of the Garda Síochána may An application to provide any other person of a relevant apply for an order of the District documents or information may offence, or (b) securing the Solicitors Acts 1954 to 2008 Court for a person to make avail- also be made, according to apprehension, prosecution or (Professional Indemnity able any particular document section 15(3), if the District conviction of any other person Insurance) Regulations 2011 or documents of a particular Court judge is satisfied that for a relevant offence, and fails Number: SI 409/2011 description, or for a person to “there are reasonable grounds without reasonable excuse to Content: Provides for the revision provide particular information by for suspecting that a person disclose that information as of professional indemnity insur- answering questions or making a has information which he or she soon as it is practicable to do ance regulations. statement containing the infor- has failed or refused without so to a member of the Garda Commencement: 1/12/2011 mation, or both. reasonable excuse to give to the Síochána.” On an application to the judge Garda Síochána, having being Supreme Court and High Court of the District Court for an order requested to do so”. Protection for employees (Fees) Order 2011 of the type above, the judge may According to section 15(15), According to section 20, “an Number: SI 406/2011 order the person to (a) produce “a person who without reasonable employer shall not penalise or Content: Provides for revised fees the documents to a member excuse fails or refuses to comply threaten penalisation against to be charged in the Office of the of the Garda Síochána for the with an order under this section an employee, or cause or permit Registrar of the Supreme Court, member to take away and, if the shall be guilty of an offence and any other person to penalise or the Central Office, the Examiner’s judge considers it appropriate, shall be liable: threaten penalisation against an Office, the Office of the Official to identify and categorise the a) On summary conviction, to a employee: Assignee in Bankruptcy, the Tax- documents to be so produced class A fine or imprisonment a) For making a disclosure or ing Master’s Office, the Accoun- in the particular manner (if any) for a term not exceeding 12 for giving evidence in relation tant’s Office, the Office of Wards sought in the application or in months or both, or to such disclosure in any of Court, the Probate Office and such other manner as the judge b) On conviction on indictment, proceedings relating to a District Probate Registries. may direct and to produce the to a fine or imprisonment for relevant offence, or Commencement: 22/8/2011 G documents in that manner, or a term not exceeding two years b) For giving notice of his or her (b) give such a member access or both.” intention to do so”. G Prepared by the Law Society Library 50 regulation Law Society Gazette www.gazette.ie October 2011 briefing solicitor client fee of 37.5%, tor client fee of €2,500 from Solicitors Disciplinary Tribunal when he also received party- a named client’s settlement of and-party costs of €7,050, €10,000, which represents a Reports of the outcomes of Solicitors Disciplinary Tribunal 20) Failed to record the receipt of solicitor client fee of 25%, when inquiries are published by the Law Society of Ireland as provided the above amount of €7,050 in he also received party-and-party for in section 23 (as amended by section 17 of the Solicitors the books of account, costs of €3,377.40, (Amendment) Act 2002) of the Solicitors (Amendment) Act 1994 21) Failed to maintain a copy of 33) Failed to record the receipt the party-and-party bill of costs of the above €3,377.40 in the In the matter of Michael J Mur- 9) Failed to maintain a copy of the or the letter received enclos- books of account, phy, a solicitor formerly practis- party-and party-bill of costs or ing the party-and-party costs 34) Failed to lodge the above ing as MJ Murphy & Co, Solici- the letter received enclosing the cheque on the client’s file in the €3,377.40 to client account or tors, 25 Lower Salthill, Galway, party-and-party costs cheque case of a named client, to office account, Co Galway, and in the matter on the client’s file in the case of 22) Deducted an improper solici- 35) Failed to maintain a copy of the of the Solicitors Acts 1954-2008 a named client, tor client fee of €7,500 from party-and-party bill or the letter [4803/DT119/08 and High 10) Deducted an improper solici- a named client’s settlement of received enclosing the party- Court record no 2009/95 SA] tor client fee of €2,000 from €20,000, which represents a and-party cheque on the client’s Michael J Murphy (respondent a named client’s settlement of solicitor client fee of 37.5%, file in the case of a named client, solicitor) €5,000, which represents a when he also received party- 36) Misapplied the above party- Law Society of Ireland (applicant) solicitor client fee of 40%, and-party costs of €6,335.50, and-party costs of €3,377.40 by On 1 September 2009, the Solici- when he also received party- 23) Failed to record the receipt of lodging same to an account in tors Disciplinary Tribunal found and-party costs of €928.41, the above amount of €6,335.50 his own name in a named credit the respondent solicitor guilty 11) Failed to record the receipt of in the books of account, union, of misconduct in his practice as a the above amount of €928.41 24) Failed to lodge the above 37) Deducted an improper solici- solicitor in that he: in the books of account, €6,335.50 to client account or tor client fee of €5,000 from 1) Deducted an improper solici- 12) Failed to lodge the above to office account, a named client’s settlement of tor client fee of €15,000 from amount of €928.41 to client 25) Misapplied the above party- €20,000, which represents a a named client’s settlement of account or to office account, and-party costs of €6,335.50 solicitor client fee of 25%, when €30,000, which represents a 13) Failed to maintain a copy of the by lodging same to an account he also received party-and-party solicitor client fee of 50%, party-and-party bill of costs or in his own name in a named costs of €4,755.52, when he also received party- the letter received enclosing the credit union, 38) Deducted an improper solici- and-party costs of €7,978.26, party-and-party costs cheque 26) Deducted an improper solicitor tor client fee of €3,000 from 2) Failed to record the receipt of on the client’s file in the case of client fee of €5,699.14 from a a named client’s settlement of the above amount of €7,978.26 a named client, named client’s settlement of €13,301, which represents a in the books of account, 14) Deducted an improper solicitor €15,769.14, which represents solicitor client fee of 22.5%, 3) Failed to lodge the above client fee of €8,515.44 from a a solicitor client fee of 36.1%, when he also received party- amount of €7,978.26 to client named client’s settlement of when he also received party- and-party costs of €6,620.13, account or to office account, €22,515.44, which represents and-party costs of €5,886.32, 39) Deducted an improper solici- 4) Failed to maintain a copy of the a solicitor client fee of 37.8%, 27) Failed to record the above tor client fee of €3,500 from party-and-party bill of costs or when he also received party- €5,886.32 in the books of a named client’s settlement of the letter received enclosing the and-party costs of €3,000, account, €16,500, which represents a party-and-party costs cheque 15) Failed to record the receipt of 28) Failed to lodge the above solicitor client fee of 21.2%, on the client’s file in the case of the above amount of €3,000 in €5,886.32 to client account or when he also received party- a named client, the books of account, to office account, and-party costs of €3,907.41, 5) Misapplied the above party- 16) Failed to lodge the above 29) Failed to maintain the letter 40) Deducted an improper solici- and-party costs of €7,978.26 by amount of €3,000 to client ac- received enclosing the party- tor client fee of €20,000 from lodging same to an account in count or to office account, and-party costs cheque on a named client’s settlement of his own name in a named credit 17) Misapplied the above party- the client’s file in the case of a €110,000, which represents a union, and-party costs of €3,000 by named client, solicitor client fee of 18.2%, 6) Deducted an improper solici- lodging same to an account in 30) Misapplied the above party- when he also received party- tor client fee of €9,500 from his own name in a named credit and-party costs of €5,886.32 and-party costs of €35,888.79 a named client’s settlement of union, by lodging same to an account in two instalments of €25,000 €22,500, which represents a 18) Failed to maintain a copy of the in his own name in a named and €10,888.79, solicitor client fee of 42.2%, party-and-party bill of costs or credit union, 41) Failed to record the receipt of when he also received party- the letter received enclosing the 31) Deducted an improper solici- the above instalment of party- and-party costs of €3,500, party-and-party costs cheque tor client fee of IR£3,500 from and-party costs of €25,000 in 7) Failed to record the receipt of on the client’s file in the case of a named client’s settlement of the books of account, the above amount of €3,500 in a named client, IR£13,500, which represents 42) Failed to lodge the above instal- the books of account, 19) Deducted an improper solici- a solicitor client fee of 25.9%, ment of party-and-party costs of 8) Failed to lodge the above tor client fee of €15,000 from when he also received party- €25,000 to client account or to amount of €3,500 to client a named client’s settlement of and-party costs of €3,850, office account, account or to office account, €40,000, which represents a 32) Deducted an improper solici- 43) Failed to maintain a copy of Law Society Gazette www.gazette.ie October 2011 regulation 51 briefing the party-and-party bill or the his own name in a named credit party costs of €17,872.80 €33,000, which represents a letters received enclosing the union, received in the case of a named solicitor client fee of 24.24%, party-and-party cheques on 56) Left the sum of €2,541.00, client to client account or to when he was also entitled to the client’s file in the case of a received to pay counsel in the office account, charge party-and-party costs, named client, case of a named client, in office 69) Failed to maintain the letter 80) Misused €417 of clients’ money 44) Misapplied the above party- account between October 2003 received enclosing the party- when he drew €662 from client and-party costs instalment of and June 2004, and-party costs cheque of account and the clients’ ledger €25,000 by lodging same to an 57) Failed to record in the books of €17,872.80 on the client’s file in account of a named client by account in his own name in a account the receipt of party-and- the case of a named client, means of a cheque payable to named credit union, party costs of €8,384.77 received 70) Misapplied the above party- Galway City Council for his (the 45) Deducted an improper solici- in the case of a named client, and-party costs of €17,872.80 respondent solicitor’s) domestic tor client fee of €5,000 from 58) Failed to lodge the party-and- by lodging same to an account refuse charges, a named client’s settlement of party costs of €8,384.77 re- in his own name in a named 81) Delayed in paying the stamp €30,000, which represents a ceived in the case of a named cli- credit union, duty of €12,050 in the case of a solicitor client fee of 16.67%, ent to client account or to office 71) Delayed in paying €1,875 to named client, when he also received party- account, counsel from June 2003 to 82) Failed to fully comply with and-party costs of €20,378.33, 59) Failed to maintain the letter February 2005 in the case of a section 68(6) of the Solicitors 46) Failed to record the receipt of received enclosing the party- named client, (Amendment) Act 1994 in respect the above €20,378.33 in the and-party costs cheque of 72) Untruthfully stated during the of 36 clients’ files examined, books of account, €8,384.77 on the client’s file in investigation that the party-and- 83) Deducted improper solicitor 47) Failed to lodge the above the case of a named client, party costs cheques that had client fees ranging from 14% €20,378.33 to client account or 60) Misapplied the above party- not been lodged to client or of- to 47.21% and ranging from to office account, and-party costs of €8,384.77 by fice accounts and had not been €2,000 to €63,608 of the cli- 48) Misapplied the above party- lodging same to an account in recorded in the books of account ent’s settlements in up to 16 and-party costs of €20,378.33 his own name in a named credit had all been cashed “across the other cases documented in work by lodging same to an account union, counter” and that they were not papers provided by the reporting in his own name in a named 61) Failed to record in the books of lodged to any account, accountant, credit union, account the receipt of party-and- 73) Drew costs from client account 84) Misused clients’ money when 49) Failed to record in the books party costs of €3,957.93 received by means of cheques payable to he caused debit balances on cli- of account the receipt of party- in the case of a named client, Bank of Ireland in the sums of ents’ ledger accounts in his own and-party costs of €3,194.66 62) Failed to lodge the party-and- €250 and €2,000, name, received in the case of a named party costs of €3,957.93 re- 74) Deducted €315.99 for an item- 85) Failed to provide documenta- client, ceived in the case of a named cli- ised list of ‘specials’ from a tion, prior to his referral to the 50) Failed to lodge the party- ent to client account or to office named client’s settlement and disciplinary tribunal, to enable and-party costs of €3,194.66 account, subsequently misapplied the the following amounts credited received in the case of a named 63) Failed to maintain the letter €315.99 to office account, to his own accounts in the clients’ client to client account or to of- received enclosing the party- 75) Informed the barrister in a ledger to be verified: €28,498.82 fice account, and-party costs cheque of named client’s case that the on 7 March 2002; €24,760 on 51) Failed to maintain the letter €3,957.93 on the client’s file in claim had been settled for 9 April 2002; €10,204.82 on received enclosing the party- the case of a named client, €5,000 when it had actually 13 June 2002; €7,000 on 14 June and-party costs cheque of 64) Failed to record in the books of been settled for €7,500, 2002; €17,478.62 on 20 June €3,194.66 on the client’s file in account the receipt of party-and- 76) Deducted €18,000 from a 2002; €10,000 on 28 June 2002; the case of a named client, party costs of €3,591.95 received named client’s settlement of €21,254.84 on 12 July 2002; 52) Failed to record in the books in the case of a named client, €100,000 and lodged same to €24,660 on 29 January 2003; of account the receipt of party- 65) Failed to lodge the party-and- office account after the client and €25,000 on 1 December and-party costs of €5,717.26 party costs of €3,591.95 re- had been informed that €8,000 2004, received in the case of a named ceived in the case of a named cli- of the deduction was for ‘spe- 86) Failed to identify or provide client, ent to client account or to office cials’, documentation, prior to his 53) Failed to lodge the party- account, 77) Drew €6,112.50, being part of referral to the disciplinary tri- and-party costs of €5,717.26 66) Failed to maintain the party- a solicitor client fee of €8,000 bunal, to enable the following received in the case of a named and-party bill of costs and the in the case of a named client, amounts lodged to his account client to client account or to of- letter received enclosing the from client account by means in a named credit union to be fice account, party-and-party costs cheque of of a cheque payable to Bank of verified: 54) Failed to maintain the letter €3,591.95 on the client’s file in Ireland, • 16 July 2002 – €5,000, received enclosing the party- the case of a named client, 78) Failed to record the receipt of • 5 June 2003 – €17,578.99, and-party costs cheque of 67) Failed to record in the books the €6,112.50 as a fee in the • 1 July 2003 – €7,800, €5,717.26 on the client’s file in of account the receipt of party- books of account in the case of • 1 August 2003 – €2,907, the case of a named client, and-party costs of €17,872.80 a named client, • 13 April 2004 – €2,461.80, 55) Misapplied the above party- received in the case of a named 79) Deducted an improper solici- • 24 April 2004 – €13,519.75, and-party costs of €5,717.26 by client, tor client fee of €8,000 from • 21 May 2004 – €5,000, lodging same to an account in 68) Failed to lodge the party-and- a named client’s settlement of • 6 August 2004 – €4,026.27, 52 regulation Law Society Gazette www.gazette.ie October 2011 briefing • 6 August 2004 – €4,000, of the solicitors’ profession and ter of the High Court in default paid to the solicitor for counsels’ • 17 August 2004 – that the name of the respondent of agreement. fees and town agents, €11,825.60, solicitor be struck off the Roll of b) Failed to comply with a sec- • 24 August 2004 – €3,142.24, Solicitors, The reasons for the tribunal’s opin- tion 10 notice issued on 1 May • 27 August 2004 – b) The respondent solicitor pay the ion that it was appropriate to make 2008 in a timely manner, having €19,422.55, whole of the costs of the Society, such an order are by reason of the only complied following a High • 7 September 2004 – including witness expenses, to be submissions made and the fact that Court order on 30 June 2008 €27,583.25, taxed by a taxing master of the the respondent solicitor has per- compelling him to do so, • 7 September 2004 – High Court in default of agree- sonally discharged the deficit of c) Failed to reply to the Society’s €6,300.42, ment. €52,119. correspondence and, in par- • 5 October 2004 – €3,793.35, ticular, the Society’s letters of • 17 November 2004 – On 14 June 2010, the President of In the matter of Ambrose Steen, 22 February 2008, 4 April 2008, €3,800, the High Court ordered: a locum solicitor, and in the mat- 1 May 2008 and despite giving • Total – €138,161 1) That the respondent solicitor ter of the Solicitors Acts 1954- an undertaking to the Society 87) Misled the Revenue by ex- is not a fit person to be a mem- 2008 [2851/DT28/10, 2851/ and the disciplinary tribunal on cluding solicitor client fees of ber of the solicitors’ profession DT36/10, 2851/DT40/10 and 11 January 2008 that he would €459,000 from income in his and the name of the respondent High Court record no 2011 no respond to the Society’s corre- voluntary disclosure and in- solicitor be struck off the Roll of 5SA] spondence. forming the Revenue, through Solicitors, Law Society of Ireland (applicant) his representatives, that solici- 2) That the respondent solicitor Ambrose Steen (respondent) On 18 November 2010, in the tor client fees of €459,000 were shall pay the whole of the costs of On 18 November 2010, in the mat- matter entitled 2851/DT40/10, obtained in breach of the regu- the Society, including witness ex- ter entitled 2851/DT28/10, the the Solicitors Disciplinary Tribu- lations and would be paid back penses before the Solicitors Dis- Solicitors Disciplinary Tribunal nal found the respondent solicitor to the clients, and then failed to ciplinary Tribunal, to be taxed found the respondent solicitor guilty of misconduct in his practice repay the full €459,000 to the by a taxing master of the High guilty of misconduct in his practice as a solicitor in that he: clients prior to his referral to Court in default of agreement; as a solicitor in that he: a) Failed to comply with the the disciplinary tribunal, 3) An order for the costs of the pro- a) Failed to fully account to the directions of the Complaints and 88) Preferred 12 former clients by ceedings in the High Court to be complainants for the proceeds of Client Relations Committee at refunding them solicitor client taxed by a taxing master of the the estate of a named deceased their meeting on 9 June 2009 fees totalling €83,545.95 plus High Court, in default of agree- and, in particular, left a minimum that he discharge the complain- interest, as per a letter dated 22 ment. shortfall of €2,000 and interest, ants’ professional fee in the sum July 2008 from his legal repre- which was due to the residuary of €2,000 plus VAT plus outlay sentative, without explaining Subsequently, the respondent so- legatee of the estate, within four months, why these 12 clients were pre- licitor appealed to the Supreme b) Failed to hand over his file in b) Failed to respond to correspon- ferred and did not explain why Court against the decision of the relation to the estate to the dence from the Society and, in any of the remainder of the President of the High Court. complainants until April 2009, particular, the Society’s letters €459,000 was not refunded, despite being requested to do so of 17 November 2008, 21 Janu- 89) Failed to refund all of the In the matter of Ciaran Quinn, on 16 May 2008, ary 2009, 12 February 2009, solicitor client fees to the cli- a solicitor practising as Quinn c) Failed to deal with the adminis- 26 August 2009, 22 September ents as directed by the Regu- Solicitors, Unit 118, First Floor, tration of the estate of the named 2009, 19 October 2009, 11 No- lation of Practice Committee Baldoyle Industrial Estate, Bal- deceased in a timely manner or vember 2009, at its meeting on 6 April 2006 doyle, Dublin 13, and in the at all, c) Failed to respond to correspon- prior to his referral to the disci- matter of the Solicitors Acts d) Indicated by letter dated 2 April dence from the complainants plinary tribunal, 1954-2008 [4342/DT26/10] 2002 that he was preparing an in relation to the missing title 90) Failed to provide or failed to Law Society of Ireland (applicant) Inland Revenue affidavit when documentation in a timely man- ensure, prior to his referral Ciaran Quinn (respondent solici- this was not the case, ner or at all. to the disciplinary tribunal, tor) e) Failed to respond to the Society’s that the explanation required On 23 November 2010, the Solici- correspondence and, in particu- The tribunal ordered that the by the Regulation of Practice tors Disciplinary Tribunal found lar, the Society’s letters of 2 July three matters be brought before Committee was provided con- the respondent solicitor guilty of 2009, 17 July 2009, 28 July 2009, the High Court and, on 28 March cerning the circumstances of misconduct in his practice as a so- 23 September 2009, 10 Novem- 2011, the President of the High an undertaking to Bank of Ire- licitor in that he permitted a deficit ber 2009. Court ordered that: land over the sale proceeds of of approximately €52,119 to arise i) The respondent solicitor be a house in a named location, in the client account of his practice. On 18 November 2010, in the mat- suspended from practising as a as requested at the May 2006 The tribunal ordered that the ter entitled 2851/DT36/10, the solicitor until such time as all meeting of the Regulation of respondent solicitor: Solicitors Disciplinary Tribunal orders of the Solicitors Disci- Practice Committee. a) Do stand censured, found the respondent solicitor plinary Tribunal and the High b) Pay a sum of €1,500 to the com- guilty of misconduct in his practice Court made against him and The tribunal recommended that: pensation fund, as a solicitor in that he: arising from disciplinary pro- a) The respondent solicitor was c) Pay the whole of the costs of the a) Failed to obtain a refund for his ceedings have been complied not a fit person to be a member Society as taxed by a taxing mas- client of £2,537.07, which she with in full, Law Society Gazette www.gazette.ie October 2011 regulation 53 briefing ii) In the event that the respondent e) Failed to provide a written ex- In the matter of Robert Sweeney, The tribunal ordered that the solicitor returns to practice, the planation to the complainant for a solicitor practising as Robert respondent solicitor: respondent solicitor should not not handing over the title deeds Sweeney at 2 Crerand House, a) Do stand censured, be permitted to practise as a sole to the complainant’s new solici- Larkins Lane, Letterkenny, Co b) Pay a sum of €2,000 to the practitioner or in partnership, tors in a timely manner, Donegal, and in the matter of the compensation fund, that he be permitted only to f) Gave an assurance to the com- Solicitors Acts 1954-2008 [10658/ c) Pay the whole of the costs of the practise as an assistant solicitor plainant in an email dated 8 DT14/11] Society, including witnesses’ ex- in the employment and under August 2008 to the effect that Law Society of Ireland (applicant) penses, as taxed by a taxing mas- the direct control and supervi- he would finally deal with the Robert Sweeney (respondent solici- ter of the High Court in default sion of another solicitor of at problems at (a), (b) and (c) above tor) of agreement. least ten years’ standing, to be during the weekend of 8 August On 12 July 2011, the Solicitors approved in advance by the Law 2008, which assurance he did Disciplinary Tribunal found the In the matter of Fabien P Society of Ireland, not carry out, respondent solicitor guilty of mis- Cadden, solicitor, Main Street, iii) The respondent solicitor do pay g) Failed to reply adequately to the conduct in his practice as a solicitor Dunshaughlin, Co Meath, the sum of €3,000 to the com- complainant’s correspondence in that he: and in the matter of the pensation fund of the Society, by email on several occasions a) Failed to ensure that there was Solicitors Acts 1954-2008 [7364/ iv) The Society do recover the costs from 20 June 2008 onwards, furnished to the Society an ac- DT116/10] of the High Court proceedings h) Failed to reply or instruct his countant’s report for the year Law Society of Ireland (applicant) and the costs of the proceedings solicitor to reply to the Society’s ended 31 May 2010 within six Fabien P Cadden (respondent before the Solicitors Disciplin- letters dated 18 August 2008, months of that date, in breach of solicitor) ary Tribunal when taxed and 1 September 2008, 17 Septem- regulation 21(1) of the Solicitors’ On 19 July 2011, the Solicitors ascertained. ber 2008 and 1 October 2008, Accounts Regulations 2001 (SI no Disciplinary Tribunal found the i) In his failure to correspond or 421 of 2001), respondent solicitor guilty of mis- In the matter of Charles O’Neill, instruct his solicitor to cor- b) Through his conduct, showed conduct in his practice as a solici- a solicitor formerly practising respond with the Society, disregard for his statutory obliga- tor that he: as Cathal O’Neill & Company, obstructed the Society’s investi- tion to comply with the Solicitors’ a) Failed to comply with his Solicitors, 10 Church Avenue, gation into the complaint. Accounts Regulations and showed solicitor’s undertaking to a Rathmines, Dublin 6, and in the disregard for the Society’s statu- named building society, dated matter of the Solicitors Acts 1954- The tribunal recommended that: tory obligation to monitor 27 November 2007, up to the 2008 [2707/DT81/09 and High a) The respondent solicitor is not a compliance with the Solicitors’ date of the swearing of the Soci- Court record no 2011 no 64 SA] fit person to be a member of the Accounts Regulations for the pro- ety’s affidavit (17 August 2010), Law Society of Ireland (applicant) solicitors’ profession, tection of clients and the public. b) Failed to lodge in a timely man- Charles O’Neill (respondent solici- b) The name of the respondent ner in the Property Registration tor) solicitor be struck off the Roll of The tribunal ordered that the Authority an application for dis- On 7 April 2011, the Solicitors Solicitors, respondent solicitor: pensing with the production of Disciplinary Tribunal found the c) The respondent solicitor pay a) Do stand censured, the land certificate in question, respondent solicitor guilty of mis- the whole of the costs of the b) Pay a sum of €2,000 to the com- when he knew he had mislaid conduct in his practice as a solicitor Society, to be taxed by a taxing pensation fund, the land certificate, in that he: master of the High Court in de- c) Pay the whole of the costs of the c) Failed to deal in a timely man- a) Failed/neglected to furnish to fault of agreement. Society, to be taxed by a taxing ner with a Property Registra- the complainant the informa- master of the High Court, in tion Authority query in relation tion requested by him in relation The tribunal ordered that the mat- default of agreement. to the above application, to the disposal of his property in ter be brought before the High d) Failed to reply to multiple que- Wexford, Court and, on 27 June 2011, In the matter of John BK Lindsay, ries from the building society b) Failed to account to the com- the President of the High Court a solicitor formerly practising as about progress in registering plainant in relation to the bal- ordered that: Lindsay & Company, Solicitors, their mortgagors’ title and their ance of proceeds of sale of the 1) The name of the respondent at 47 Wellington Quay, Dublin 2, charge, property in Wexford for the solicitor, Charles O’Neill, be and in the matter of the Solicitors e) Failed to reply to multiple cor- period of 12 January 2005 to 13 struck from the Roll of Solici- Acts 1954-2008 [3483/DT31/10] respondence from the Society July 2007, tors, Law Society of Ireland (applicant) in a timely manner or at all. c) Through his failure to account to 2) The Society do recover as John BK Lindsay (respondent his client for the balance of sale against the respondent solici- solicitor) The tribunal ordered that the proceeds or to furnish the in- tor the costs of the proceedings On 13 July 2011, the Solicitors respondent solicitor: formation required by the client before the High Court when Disciplinary Tribunal found the a) Do stand censured, in relation to the disposal of the taxed and ascertained, respondent solicitor guilty of mis- b) Pay a sum of €7,500 to the property in Wexford, failed to 3) The Society do recover as conduct in his practice as a solicitor compensation fund, protect the interests of his client, against the respondent solicitor in that he: c) Pay the whole of the costs of the d) Failed, refused or neglected to the costs of the Solicitors Disci- a) Failed to reply to correspondence Law Society, including witness transfer title deeds in respect of plinary Tribunal proceedings, to from the complainant, expenses, as taxed by a taxing two other properties in Wexford include witness expenses when b) Failed to reply to correspondence master of the High Court in in a timely manner, taxed and ascertained. from the Society. default of agreement. G 54 eurlegal Law Society Gazette www.gazette.ie October 2011 briefing Eurlegal Edited by TP Kennedy, Director of Education European jurisdiction rules and arbitration There can be no doubt that the world is a more contentious place, and this has been evidenced by the growth in international arbitration in recent years. Ireland has proac- tively taken steps to take advantage of this trend and to promote the country as a centre for internation- al arbitration. One such step was the implementation, into Irish law, of the UNCITRAL Model Law on International Commercial Arbitra- tion by way of the Arbitration Act 2010. Nevertheless, strong com- petition exists between countries seeking to act as centres for inter- national arbitration both within the EU and externally. Indeed, the ability to protect arbitration agree- ments may be a critical deciding factor when commercial entities are choosing a seat of arbitration. One manner in which arbitration agreements are policed is through the use of anti-suit injunctions. Anti-suit injunctions, in the con- text of international arbitration, are used to prevent a party from pursu- Trouble in the pipeline for arbitration agreements? ing court proceedings that would be in breach of an arbitration tion agreements and prevent par- SpA to carry a cargo of crude oil sum of €15,587,292.66 under the agreement between the parties. ties from engaging in vexatious liti- to Erg’s refinery in Italy. The relevant insurance policies. The nature of such injunctions is gation. However, the international charterparty was on an amended In August 2000, Erg com- to ensure that parties comply with context and ramifications of such Asbatankvoy (one of the most- menced arbitration proceedings their contractual obligations and orders invariably led to conflict in used tanker charterparties in the against West Tankers in respect to prevent the parties from ‘forum relation to jurisdiction within the world, produced by the Associa- of Erg’s uninsured losses. The shopping’ in the context of resolv- EU. In February 2009, the ECJ tion of Ship Brokers and Agents) defendants concurrently brought ing their contractual disputes. delivered a controversial decision, standard form, dated 24 July a claim against West Tankers in Such injunctions are frequently in case C-185/07, West Tankers Inc 2000, and contained an arbitration an Italian court in respect of the used to prevent one party from v Allianz SpA and Generali Assicura- agreement that all disputes aris- insured losses, relying on their engaging in tactical litigation, zioni General SpA ([2011] EWHC ing out of the charter were to be rights of subrogation. whereby that party issues court 829), which essentially ‘sank’ the referred to arbitration in London, West Tankers issued proceed- proceedings, in breach of an extant anti-suit injunction in an EU con- with English law to apply. ings in the Commercial Court on arbitration agreement, in an effort text. The ship was involved in a col- 6 October 2003 for an anti-suit to stymie any arbitration proceed- Not to be outdone, the English lision with a pier at Erg’s refinery injunction to restrain the defen- ings. The extra costs and delay in- courts have recently issued an in- in August 2000, causing a great dants from taking any steps to volved in fighting proceedings on teresting decision that would ap- deal of damage and putting the prosecute their claims except by two fronts can often mean that the pear to claw back some of their jetty out of operation. Erg suf- way of arbitration in London. ‘weaker’ party may not be in a posi- ability to enforce arbitration agree- fered losses in respect of both the On 21 March 2005, Colman J tion to proceed with the dispute as ments. It is worth reviewing the repair costs and the disruption to granted the injunction; however, a result and/or may settle a dispute facts of the case to put the matter the refinery operations and the li- the defendants appealed the deci- on substantially less favourable in context. ability to pay demurrage to third sion to the House of Lords. The terms. parties. The defendants (Allianz Lords referred a question to the These injunctions were the trad- Facts SpA and Generali Assicurazioni CJ as to whether it was consistent itional means by which English West Tankers Inc owned a ship SpA), who were Erg’s insurers, with regulation 44/2001 (Council courts sought to protect arbitra- that was chartered to Erg Petroli paid compensation to Erg in the regulation on jurisdiction and the Law Society Gazette www.gazette.ie October 2011 eurlegal 55 briefing
recognition and enforcement of 2010 that the defendants sought He argued that, where a party’s inconsistent judgment. He noted judgments in civil and commercial to set aside, and they brought an object is to convert an award into that it was not necessary for the European jurisdiction rules and arbitration matters) for a court of a member application to the High Court for a judgment to utilise article 34(3) court to decide the hypothetical state to make an order to restrain this purpose. of the regulation to trump a later question of whether an inconsis- a person from commencing or judgment given in breach of an tent judgment would be given, continuing proceedings in another Application before the High Court arbitration agreement, the court because the unsuccessful party to member state on the ground that Among other things, the defen- would be enforcing the award the arbitration would not have such proceedings are in breach of dants argued that leave, pursuant it made under section 66 of the obtained an inconsistent judgment an arbitration agreement. to section 66 of the Arbitration Act Arbitration Act 1996. in a member state at the time the Meanwhile, in the arbitra- 1996, could only be given if the The claimants also proposed court is dealing with a section 66 tion proceedings, West Tankers award would be capable of being that the facts of Solo Kleinmoto- application. Therefore, he dis- denied liability and counter- enforced by use of one or more of ren were distinguishable from the missed the claim. claimed for a declaration against the available means of execution – present case and that the public Erg and the defendants that it for example, a charging order, fi fa, policy arguments in The Wadr Comment was under no liability arising from and so on. Since the declaratory Sudr were different. In that case, The 2009 CJ decision in West the ship’s collision with the pier. judgment is only a declaration of the public policy engaged was the Tankers caused a certain amount Although Erg continued to par- the parties’ rights, it is not suscep- giving of force and effect to awards of surprise, particularly for those ticipate fully in the reference, the tible to being enforced through in accordance with the New York who engage in international trade defendants declined to take any the established execution pro- Convention, whereas in the present under contracts that often contain part in the arbitration in London. cess, except in highly exceptional case the public policy contended arbitration clauses. It was felt that On 7 May 2008, Smith J or- circumstances. The defendants for was the enforcement of arbi- the decision undermined arbitra- dered and directed that the defen- argued that no such circumstances tration agreements. tion agreements and could lead dants were bound by the arbitra- existed in the present case. to considerable costs in fighting a tion agreement and that the dis- Counsel also argued that no re- Judgment case in more than one jurisdiction, pute between Erg, West Tankers liance could be placed on article Field J felt that the purpose of sec- and the case was widely criticised and the defendants was to be de- 34(1) or article 34(3) of the regu- tion 66 of the Arbitration Act 1996 as a result. termined as a single reference by lation in light of the findings in was to provide a means by which The High Court seems to have the arbitral tribunal that had been The Wadr Sudr ([2010] 1 Lloyd’s a victorious party in an arbitra- taken a practical approach to the appointed. Although Erg contin- Rep 193) and Solo Kleinmotoren tion could obtain material benefit problem in an effort to restore ued to participate in the reference, GmbH v Emilio Bloch ([1994] ECR of the award, other than by suing some of the certainty to arbitra- the defendants declined to take any 1-2237). In The Wadr Sudr, the on foot of it. Where the award is tion agreements. In allowing the part in the London arbitration. Court of Appeal held that a deci- of the nature of a declaration and arbitral award to be enforced as On 12 November 2008, the sion by a court of a member state there is no appreciable risk of the a judgment, an English court can arbitral tribunal issued its final that a dispute was not within an losing party obtaining an inconsis- refuse to enforce a judgment of award, which, among other things, arbitration agreement was a regu- tent judgment in a member state, another EU court if it is irrecon- declared that West Tankers were lation judgment, and it was not leave will generally not stand to cilable with an earlier judgment of under no liability to the defen- open to argue that recognition be granted, because the victorious the English court – article 34(3) dants in respect of the collision. of the judgment was contrary to party will not obtain any benefit of the regulation. While the ECJ The ECJ, on 10 February 2009, public policy within article 34(1). that he does not already have by put an end to anti-suit injunc- answered the question in the neg- In Solo Kleinmoteren, the CJ stated virtue of the award. In such a case, tions in the context of restrain- ative, holding that the anti-suit that to be a ‘judgment’ for the pur- the grant of leave will not facilitate ing proceedings wrongly brought injunction enforcing an arbitra- poses of the Judgments Convention, the realisation of the benefit of the in EU countries subject to the tion agreement was incompatible the decision had to emanate from award. However, where the victo- regulation, the High Court has with the regulation. Following the a judicial body of a contracting rious party’s objective is to estab- taken steps to claw back some of discharge of the anti-suit injunc- state deciding on its own authority lish the primacy of a declaratory the certainty to arbitration agree- tion, the defendants continued on the issues between the parties; award over an inconsistent judg- ments. Nevertheless, parties may to prosecute the proceedings in accordingly, a settlement recorded ment, the court will have jurisdic- still be subject to proceedings in Italy, despite the arbitral tribunal’s in an order of a court was not a tion to make a section 66 order, two jurisdictions with costs being award. judgment for the purposes of the because to do so will be to make incurred in respect of each. It also Upon application from West convention. a positive contribution to the remains to be seen what difficul- Tankers, the High Court, on 15 Counsel on behalf of the claim- securing of a material benefit of ties will arise if the Italian court November 2010, gave leave to ant (West Tankers) argued that the award. chooses to rule on the proceed- enforce the award as a judgment, the purpose of section 66 of the In such an application, Field J ings before it and what difficulties and judgment was entered against Arbitration Act 1996 was to assist was of the view that it was enough may arise thereafter. the defendants, pursuant to sec- a successful party in obtaining the for the party seeking to enforce tion 66(2) of the Arbitration Act benefit of an award and that the the award to show that he has a Martin Cooney is an associate with 1996, in the terms of the award. word ‘enforced’ in section 66(1) real prospect of establishing the the construction and engineering It is the award of 15 November should be construed accordingly. primacy of the award over an group of Arthur Cox. 56 Eurlegal Law Society Gazette www.gazette.ie October 2011 briefing
Recent developments in European law
CONSUMER tion covered by the regulation free movement inherent in that device. This is its Case C-83/10, Sousa Rodriguez (such as care costs) or whether it Joined cases C-288/09 and principal function, and the record- and others v Air France, opinion can extend to other damage, such C-289/09, British Sky Broadcast- ing function is only secondary. of Advocate General Sharpston, as non-material damage. Advo- ing Group plc and Pace plc v the 28 June 2011 cate General Sharpston found Commissioners for Her Majesty’s intellectual property Under Regulation 261/2004 on that a flight is ‘cancelled’ within Revenue & Customs, 14 April Case C-271/10, Vereniging van air passenger compensation, pas- the meaning of the regulation if, 2011 Educatieve en Wetenschappelinke sengers of a flight that is cancelled after departing as planned, it does EU law sets the rates of customs Auteurs (VEWA) v Belgische Sta- should be able either to obtain re- not arrive at its scheduled destina- duties applicable to items imported at, 30 June 2011 imbursement of their tickets or to tion, but returns to the airport of from third states into the EU. Sky Directive 92/100 on rental and obtain re-routing. Where a flight departure. A flight is intended to imports satellite television receiv- lending rights gives authors an is cancelled with little or no notice carry passengers and their bag- ers, known as ‘Sky+ boxes’, manu- exclusive right to authorise or and where there are no extraor- gage from one point to another. factured for them by Pace. The prohibit the rental and lending of dinary circumstances, the passen- If it leaves one point and then box receives satellite signals, con- original and copies of copyright gers are also entitled to compensa- returns there, the flight cannot be tains a hard disc drive, and allows works. For public lending, member tion, the amount varying depend- said to have operated. Nothing of the end user to record programmes states may derogate from that ex- ing on the distance of the planned the operation has been achieved, as broadcast by Sky. Customs in Brit- clusive right, provided that authors flight. The regulation also states the carrier has carried no one and ain classified the Sky+ box as a re- obtain remuneration for such lend- that it applies without prejudice to nothing anywhere. The reference cording apparatus, which is subject ing. VEWA is a Belgian copyright a passenger’s right to further com- to ‘further compensation’ cannot to a customs duty of 13.9%. Sky management society. It brought an pensation, but that compensation be limited to the compensation of and Pace argued that it should be action before the Belgian courts granted under the regulation may the type provided by the regula- classified as a set-top box with a against the royal decree transpos- be deducted from such compensa- tion. The regulation does not set communication function, which is ing the directive. The royal decree tion. The applicants were booked any limitation on the type of dam- exempt from customs duties. The fixed a flat-rate remuneration of on an Air France flight from Paris age for which a passenger may case was referred to the Court of €1 per adult per year and 50 cents to Vigo on 25 September 2008. make a claim. That question must Justice. The court found that de- per child registered with the lend- The flight took off as planned be determined in light of national coders with a hard disc drive are to ing institutions, as long as that per- but returned to Charles de Gaulle law and may, therefore, include be classified as set-top boxes with son has borrowed once during the Airport a short time later due to non-material damage. A passenger a communication function rather reference period. VFWS argued a technical problem. All were re- may seek compensation for expen- than as recording devices. In the that this breached the provisions booked onto alternative flights diture incurred where the airline case of electrical devices, machines of the directive, which require that the following day. The Rodriguez has failed to provide care and as- that have several functions and can ‘equitable remuneration’ be paid family were rerouted to Oporto sistance. The regulation does not be classified in different categories for a loan or a rental. The Belgian and had to take a taxi from there expressly provide for such com- are to be classified according to the Council of State referred the case to their home in Vigo. All the pas- pensation, but the obligation to principal function of the device. to the Court of Justice. The CJ held sengers took legal action to claim provide care and assistance would Decoders such as the Sky+ box are that the remuneration must enable compensation for the cancella- be nugatory if it could not be sold to television service providers authors to receive an adequate in- tion of the flight. In addition, the enforced. The obligation to pro- such as Sky, who make them avail- come. Its amount cannot be purely Rodriguez family sought €170 vide care and assistance is in no able to their customers so that they symbolic. It is for member states to to cover the cost of the taxi fare way contingent on a request by a can access their programmes. The determine the relevant criteria for and €650 per person by way of passenger at the time, and such a television recording function that determining the amount payable to non-material damages. The Sousa request is not necessary in order is also available on that model is authors in the event of public lend- family claimed €650 each for non- to seek compensation. Finally, the merely an additional service. Cus- ing. In doing this, a wide margin of material damages and the cost of advocate general found that the tomers who choose that product discretion is reserved to the mem- meals in the airport and an addi- reimbursement of such expenses are primarily seeking, not a record- ber states. They may determine the tional day in boarding kennels for should not be considered as ‘fur- ing function, but rather a function amount of remuneration payable their dog. Mr Puga Luerio sought ther compensation’ from which of decoding television signals. The to authors for public lending in ac- €300 non-material damage. The other compensation granted under box cannot record video content cordance with their own cultural national court referred a number the regulation may be deducted. from any other external source; promotion objectives. However, as of questions to the CJ as to wheth- The duty to pay compensation it cannot play video content from remuneration is consideration for er the events in question could be for a cancelled flight and the duty external media and is incapable of harm caused to authors by reason considered a ‘cancellation’ and to provide care and assistance are recording video content onto ex- of the use of their works without whether the ‘further compensa- concurrent and cumulative – the ternal media. Thus, it is principally their authorisation, the determi- tion’ that a passenger may claim airline may not escape liability by intended to be used to receive tele- nation of the amount of that re- concerns the type of compensa- offsetting one against the other. vision signals and that function is muneration cannot be completely Law Society Gazette www.gazette.ie October 2011 eurlegal 57 briefing
dissociated from the elements that many establishments are, in effect, the Supreme Court, which made compensation for the prejudice Recent developments in European law constitute that harm. As that harm almost exempted from the obliga- a reference for a preliminary rul- that arose on its territory. Thus, it is the result of public lending – tion to pay any remuneration. This ing to the CJ. The Court of Justice is for the authorities, in particular the making available of protected is at variance with the directive. found that the directive does not the courts, of that member state to works by establishments accessible expressly address the issue of who seek an interpretation of national to the public – the amount of re- Case C-462/09, Stichting de must be regarded as responsible law that is consistent with that ob- muneration payable should take ac- Thuiskopie v Opus Supplies for paying the fair compensation. ligation to achieve a certain result count of the extent to which those Deutschland GmbH, M van der The CJ had already held that fair and guarantees the recovery of that works are made available. The Lee, H van der Lee, 16 June 2011 compensation must be regarded as compensation from the seller who higher the number of protected Directive 2001/29 on copyright recompense for the harm suffered contributed to the importation of works made available by a public and related rights gives the ex- by the author. The person who those media by making them avail- lending establishment, the greater clusive right to reproduce audio, causes the harm is the one who, for able to the final users. It is no bear- will be the prejudice to copyright. visual and audiovisual material his private use, reproduces a pro- ing that the commercial seller is es- The amount of remuneration to to authors, performers and pro- tected work without seeking prior tablished in another member state. be paid by such an establishment ducers. As an exception, member authorisation from the right-hold- should take account of the number states may authorise the making er. It is in principle for that person LITIGATION of works made available to the pub- of private copies on condition that to make good the harm by financ- The European Commission has lic, and thus large public lending the copyright holders receive ‘fair ing the compensation that will be proposed a new regulation to cre- establishments should pay a greater compensation’. The purpose of paid to the right-holder. However, ate a European asset preservation level of remuneration than smaller that compensation is to contribute there are practical difficulties in order. The order that would allow ones. Another factor of relevance is towards ensuring that right-hold- identifying private users and oblig- creditors to preserve the amount the number of borrowers registered ers received appropriate remunera- ing them to compensate right hold- owed in a debtor’s bank account. with a lending establishment. The tion for the use of their works or ers. Thus, it is open to member Its effect would be to prevent greater the number of persons hav- other subject matter. Dutch legis- states to establish a private copying debtors from removing or dis- ing access to the protected works, lation provides for such an excep- levy for the purposes of financ- sipating their assets during the the greater will be the prejudice to tion for copying for private use. It ing fair compensation, charge- time it takes to obtain and enforce the author’s rights. The amount is for the manufacturer or importer able not to the private persons a judgment. Creditors would be of remuneration to be paid to au- of the reproduction media to pay concerned, but to those who have allowed to preserve funds in bank thors should also be determined the private copying levy. The ap- digital reproduction equipment, accounts under the same condi- by taking into account the number plicant is the Dutch body responsi- devices and media and who make tions in all member states of the of borrowers registered with that ble for recovering the private copy- that equipment available to private EU. The new procedure will be establishment. The Belgian decree ing levy. Opus is a company based users or who provide copying ser- an ex parte interim measure. The took into account the number of in Germany that sells, via the in- vices for them. The introduction order will be available to the cred- borrowers registered with public ternet, blank media. Its operations of the private copying exception is itor as an alternative to instru- lending establishments, but not the are focused in particular on the not to unreasonably prejudice the ments existing under national law. number of works made available Netherlands by means of Dutch- legitimate interests of the copy- It will only be used in cross-bor- to the public. Such a taking into language websites that target right holder. Member states der cases. The regulation provides account does not, therefore, have Dutch consumers. The contract that have introduced this excep- rules relating to jurisdiction, con- sufficient regard for the extent of of sale from Opus provides that, tion must guarantee the effective ditions and procedure for issuing the harm suffered by authors or where a Dutch consumer makes recovery of the fair compensation an order, rules on enforcement, for the principle that those authors an order online, the order is pro- intended to compensate the authors and remedies for the debtor. G must receive remuneration that is cessed in Germany and the goods harmed by the prejudice sustained, equivalent to an adequate income. are delivered from Germany to the in particular if that harm arose on The decree also provided that, Netherlands on behalf of, and in the territory of that member state. where a reader is registered with the name of, the customer. Opus In this case, the harm suffered by a number of different establish- does not pay a private copying levy the authors arose in the Nether- ments, the remuneration is payable in respect of the media delivered to lands, since the purchasers, as final only once in respect of that person. its customers in the Netherlands, users of the protected works, reside VEWA argued that 80% of estab- either there or in Germany. The there. It is impossible, in practice, lishments in the French communi- Stichting brought an action against to recover compensation from the ty in Belgium declared that a large Opus before the Dutch court, ar- final users as importers of those number of their readers are also guing that Opus had to be regard- media in the Netherlands. The registered with other lending estab- ed as the ‘importer’. Opus argued system of recovery chosen by the lishments. Those readers were then that it is the Dutch purchasers member state cannot relieve that not taken into account for payment who must be classified as import- member state of the obligation to of the remuneration of the author ers. The argument relied upon by achieve the result of ensuring that concerned. In those circumstances, Opus was accepted by the Dutch authors who have suffered harm that system may have the result that courts. The Stichting appealed to actually receive payment of fair WINNER of the 2011 Irish Institute of Training & Development (IITD) Awards - Networks & Groups Category
This is awarded to the best submission from Networks or Groups who display excellence in training and development.
DATE EVENT DISCOUNTED FULL CPD HOURS FEE* FEE
Law Society Professional Training in partnership with the 3 General (by Group Study) plus 1 Regulatory 13 Oct Conveyancing Committee present the Annual Property Law €180 €240 matters (by Group study) Conference 2011
Law Society Professional Training in partnership with the 3 Nov Business Law Committee present: Annual Contract Law Update €112 €150 2.5 General (by Group Study) 2011 Law Society Skillnet in partnership with DSBA present: 4 Nov €135 €180 3 General (by Group Study) A Criminal Litigation Update 2011
16 Nov & Law Society Professional Training: Public Procurement: €295 €395 8 General (by Group Study) 22 Nov Practical 2-day Workshop Plus Legislation Overview
Law Society Professional Training in partnership with the 2 Management and Professional Development 25 Nov In-house and Public Sector Solicitors Committee present their €135 €180 Skills plus 1 Regulatory matters (by Group Annual Conference 2011 study)
Law Society Professional Training in partnership with Solicitors 29 Nov for the Elderly Ireland present the A to Z of Enduring Powers €112 €150 2.5 General (by Group Study) of Attorney
Law Society Professional Training: Governance Risk and 3 Management and Professional Development 2 Dec €180 €240 Compliance Seminar Skills plus 1 Regulatory matters (by group study)
Law Society Skillnet in partnership with CIMA present an Full Management & Professional Development Ongoing €670 €895 online Certifi cate in Business Accounting Skills requirement for 2011 (by eLearning)
Ongoing Suite of eLearning courses To register or for further Full Management & Professional Development • How to create an eNewsletter - €90 (reduced from €150) information email: Skills requirement for 2011 (by eLearning) • Touch typing - €40 [email protected] • PowerPoint – all levels – €80 • Microsoft Word – all levels - €80 • Excel for beginners - €80
For full details on all of these events visit webpage www.lawsociety.ie/Lspt or contact a member of the Law Society Professional Training team on: P: 01 881 5727 E: [email protected] F: 01 672 4890 *Applicable to Skillnet members/Public sector subscribers
LSPT ad Gazette Oct 2011.indd 1 13/09/2011 15:07 Law Society Gazette www.gazette.ie October 2011 Professional notices 59 WINNER of the 2011 Irish Institute of Training notices & Development (IITD) Awards - Networks & Groups Category wills Rates Bredin, Mary (deceased), late of 13 Limerick Road, Ennis, Co Clare, who This is awarded to the best submission died on 2 August 2011. Would any per- Professional notice rates from Networks or Groups who display son having any knowledge of the where- excellence in training and development. abouts of a will executed by the above- rates in the Professional notices section are as follows: named deceased please contact Lorraine Burke of Desmond J Houlihan & Co, • Wills – €144 (incl VAT at 21%) Solicitors, Salthouse Lane, Ennis, Co • Title deeds – €288 per deed (incl VAT at 21%) Clare; tel: 065 684 2244, email: lburke@ djhoulihan.ie • Employment/miscellaneous – €144 (incl VAT at 21%)
Brennan, Kathleen (deceased), late Highlight your notice by putting a box around it – €33 extra of 13 Brookville Park, Coolock, Dub- lin 5, in the county of Dublin. Would All notices must be paid for prior to publication. Cheques should be made any solicitor holding or having knowl- edge of the whereabouts of an original payable to Law Society of Ireland. Deadline for November Gazette: 19 October 2011. will, executed on 3 March 2008 by the For further information, contact the Gazette office on tel: 01 672 4828 (fax: 01 672 4877) deceased, please contact Colin Morris, solicitor, Moroney Barron Solicitors, 49a Donaghmede SC, Donaghmede, edge of the whereabouts of a will ex- Road, Rathmines, Dublin 6, and 40 Take notice that any person having an DATE EVENT DISCOUNTED FULL CPD HOURS Dublin 13, in the county of Dublin; tel: ecuted by the above-named deceased Leinster Road, Rathmines, Dublin 6, interest in the freehold estate of the FEE* FEE 01 832 7899, fax: 01 851 2085 please contact Sylvia Tyrrell, tel: 087 who died on 6 July 2011. Would any following property: all that and those 695 9789 person having knowledge of a will made the premises demised by indenture of Law Society Professional Training in partnership with the 3 General (by Group Study) plus 1 Regulatory Brophy, Martin (deceased), late of by the above-named deceased please lease dated 25 March 1846 and made 13 Oct Conveyancing Committee present the Annual Property Law €180 €240 matters (by Group study) 39 The Mill, Crossgun’s Quay Bridge, Horgan, Gerard (deceased), late of no contact Mary Mylotte, MacDermot between Reverend William Bleazby of Conference 2011 Phibsboro, Dublin 7, who was born 7 The Rock, Midleton, Co Cork, who & Allen, Solicitors, 10 Francis Street, the one part and William Walsh of the Law Society Professional Training in partnership with the on 28 September 1956 and died died on 8 June 2011. Would any person Galway, tel: 091 567 071, email: other part for the term of 200 years from 3 Nov Business Law Committee present: Annual Contract Law Update €112 €150 2.5 General (by Group Study) on 18 July 2011, formerly of Holly- having knowledge of any will executed [email protected] 26 March 1846, which premises are 2011 bank Road, Drumcondra, Dublin 9. by the above-named deceased please Would any person having any knowl- contact Joseph S Cuddigan & Co, So- miscellaneous Law Society Skillnet in partnership with DSBA present: 4 Nov €135 €180 3 General (by Group Study) licitors, 30-31 Washington Street, Cork; A Criminal Litigation Update 2011 tel: 021 427 0903, fax: 021 427 0561, Busy Galway City practice for Is your client interested email: [email protected] sale. Reply in strictest confidence 16 Nov & Law Society Professional Training: Public Procurement: WPG DocStore’s professional €295 €395 8 General (by Group Study) to box 08A/11/01 in selling or buying a 22 Nov Practical 2-day Workshop Plus Legislation Overview e-discovery support service O’Connell, Bernard (deceased), late from €500 per GB. 7-day liquor licence? Law Society Professional Training in partnership with the 2 Management and Professional Development of Apartment 5, Hazelbrook Court, ISO 27001 certified; 65/69 Terenure Road West, Terenure, title deeds 25 Nov In-house and Public Sector Solicitors Committee present their €135 €180 Skills plus 1 Regulatory matters (by Group tel: (01) 2454800, Annual Conference 2011 study) Dublin 6, and formerly of 34 Rathgar In the matter of the Landlord and If so, contact Liquor email: [email protected] Tenant Acts 1967-2005 and in the Licence Transfers or website: matter of the Landlord and Tenant Law Society Professional Training in partnership with Solicitors www.wpg.ie/docstore.htm 29 Nov for the Elderly Ireland present the A to Z of Enduring Powers €112 €150 2.5 General (by Group Study) (Ground Rents) (No 2) Act 1978 and of Attorney SPECIALIST in the matter of no 34 Pope’s Quay, Contact LAND REGISTRY Cork, and upon an application being 0404 42832 Law Society Professional Training: Governance Risk and 3 Management and Professional Development made by Michael Powell and Sean 2 Dec €180 €240 Compliance Seminar Skills plus 1 Regulatory matters (by group study) MAPPING Durcan SERVICE Law Society Skillnet in partnership with CIMA present an Full Management & Professional Development Ongoing €670 €895 online Certifi cate in Business Accounting Skills requirement for 2011 (by eLearning) €159 + VAT for
Ongoing Suite of eLearning courses To register or for further Full Management & Professional Development standard semi-D in • How to create an eNewsletter - €90 (reduced from €150) information email: Skills requirement for 2011 (by eLearning) South Dublin. • Touch typing - €40 [email protected] • PowerPoint – all levels – €80 Other locations and • Microsoft Word – all levels - €80 A Caring Legacy: properties quoted on • Excel for beginners - €80 bequests to The Carers request. Association (CHY10962) help to support home-based family Contact: care in Ireland. mattbarnes.land.reg For full details on all of these events visit webpage www.lawsociety.ie/Lspt or For information: @gmail.com contact a member of the Law Society Professional Training team on: Emma at 057 9370210. Mobile: 087 2544443 [email protected] P: 01 881 5727 E: [email protected] F: 01 672 4890 Web: www.mbarch.ie or www.carersireland.com. *Applicable to Skillnet members/Public sector subscribers
LSPT ad Gazette Oct 2011.indd 1 13/09/2011 15:07 60 Professional notices Law Society Gazette www.gazette.ie October 2011 notices
known as 34 Pope’s Quay, Cork. Any person having any interest in the In default of any such notice being that the person or persons beneficially Take notice that the applicants, Mi- fee simple estate or any intermedi- received, the said Elizabeth Murray in- entitled to all superior interests up to chael Powell and Sean Durcan, intend ate interest in all that and those the tends to proceed with the application and including the fee simple in the said to apply to the county registrar for the hereditaments and premises known before the said county registrar at the property are unknown and unascertain- county of Cork for the acquisition of the as 2 Parnell Street (otherwise 2 Main end of the 21 days from the date of this able. freehold interest in the aforesaid prop- Street), Dungarvan, in the county of notice and will apply to the said county Date: 7 October 2011 erty, and any party asserting that they Waterford, being part of the heredita- registrar at the end of the 21 days from Signed: McCullagh Higgins & Co (solicitors hold a superior interest in the aforesaid ments and premises comprised and the date of this notice for such direc- for the applicant), 1-2 Cois Mara, Dungar- property is called upon to furnish evi- demised by lease dated 13 May 1889 tions as may be appropriate on the basis van, Co Waterford dence of title to the aforesaid property between Richard Anthony Maxwell, to the below named within 21 days from Francis Luke Holland and James Je- the date of this notice. rome Walsh of the one part and James recruitment In default of any such notice being re- Fitzgerald Ryan of the other part, for ceived, the applicants intend to proceed the term of 199 years from 25 March with the application before the county 1889, subject to the yearly rent of £30 NOTICE TO THOSE PLACING registrar at the end of 21 days from the and subject to the covenants and condi- date of this notice and will apply to the tions on the part of the lessee. RECRUITMENT ADVERTISEMENTS IN county registrar for the county of Cork Take notice that Elizabeth Murray for directions as may be appropriate on of 24 Church Street, Dungarvan, Co THE LAW SOCIETY GAZETTE the basis that the person or persons ben- Waterford, being the person entitled eficially entitled to the superior interest to the lessee’s interest in the said lease, Please note that, as and from the August/September including the freehold reversion in the intends to apply to the county registrar aforesaid properties are unknown and for the city and county of Waterford, 2006 issue of the Law Society Gazette, NO recruitment unascertained. the Courthouse, Catherine Street, Wa- advertisements will be published that include references Date: 7 October 2011 terford, for the acquisition of the fee to years of post-qualification experience P( QE). Signed: Julian O’Brien & Boland (solicitors simple estate and all intermediate in- for the applicant), 43 South Mall, Cork terests (if any) in the said property, and any party asserting that they hold the The Gazette Editorial Board has taken this decision based In the matter of the Landlord and fee simple or any intermediate interest Tenant Acts 1967-2005 and in the in the aforesaid property is called upon on legal advice, which indicates that such references may matter of the Landlord and Tenant to furnish evidence of their title thereto be in breach of the Employment Equality Acts 1998 and and in (Ground Rents) (No 2) Act 1978 to the county registrar and to the un- 2004. the matter of an application by Eliza- der-mentioned solicitors within 21 days beth Murray from the date of this notice.
job-seekers’ legal register vacancies For Law Society members seeking For Law Society members to advertise a solicitor position, full-time, part-time for all their legal staff requirements, or as a locum not just qualified solicitors
Log in to the members’ register of the Law Society Visit the employment section on the Law Society website, www.lawsociety.ie, to upload your website, www.lawsociety.ie, to place an ad or CV to the self-maintained job seekers contact employer support by email on register within the employment [email protected] section or contact career or tel: 01 672 4891. You support by email on can also log in to the members’ [email protected] or area to view the job seekers tel: 01 881 5772. register. DCC plc, one of Ireland’s leading public companies, is a sales, marketing and business support services group focused on the energy, IT & entertainment products, healthcare, environmental and food & beverage markets. DCC employs approximately 8,000 people and in the year ended 31st March 2011 generated profits of €230 million on revenue of €8.68 billion.
As a result of the continued growth and development of the Group, DCC is seeking to hire an ambitious individual who will relish the challenges that this exceptional opportunity will bring. The individual will join the small team at DCC’s head office in Dublin. HEAD OF GROUP COMPLIANCE This newly created position will have overall responsibility for the management of DCC’s legal and regulatory compliance requirements across all of the Group’s operating subsidiaries. With the support of the Group Compliance Policy Committee, the successful candidate will develop and manage a centralised Group compliance function.
The Position ■ Design Group legal and regulatory compliance policy framework for approval by the Board ■ Evaluate existing detailed compliance processes in place in the Group’s subsidiaries and oversee implementation of approved Group policies ■ Establish and manage a network of subsidiary compliance coordinators to ensure appropriate and effective delegation of compliance activities ■ On-going assessment of the Group’s compliance risk profile, ensuring gaps and areas of weaknesses in the implementation and effectiveness of compliance activities are addressed in full ■ Engage in the regular monitoring of developments or changes in the laws or regulations applicable to the Group The Person ■ Professionally qualified with an excellent academic background and a minimum of ten years’ relevant experience gained leading a legal, regulatory, compliance, finance or internal audit function ■ A problem solver with a strong technical background and a detailed understanding of compliance and regulatory processes ■ Excellent leadership skills demonstrated by a track record of managing a high performance function through people, processes and systems ■ Proven first rate interpersonal, communication and influencing skills required to command the confidence and respect of the senior executive teams within DCC and it’s operating subsidiaries
A very attractive remuneration package commensurate with experience will apply.
Interested candidates should contact or forward their CV in strict confidence to our retained consultant: Marcus Kelly, Managing Director, FK International Financial Search & Selection. Tel: 01 6688060 or Email: [email protected] www.fkinternational.com Brightest High Flyers dublin london
Banking Solicitor Top 5 Financing Associate Magic Circle In joining the stand-out banking team in Ireland you will be exposed to the full In joining this outstanding international finance practice you will advise gambit of banking law including acquisition finance, property finance, structured corporates, banks and financial institutions on cutting edge legal matters. A true products, capital markets and aviation finance. You will deal directly with top lockstep partnership, the Firm is renowned for its multi-disciplinary approach. As drawer Irish and international clients, participate in business development and an associate you are not expected to master all types of financing work but gain will be given clear goals for career progression. The true lockstep structure of the familiarity with four to five areas of the practice and if you feel you are ready to partnership ensures a transparent collegiate culture, a client first mentality and run a negotiation or meeting alone, the Partners will be keen to encourage you. merit only based promotions. 2+ years relevant experience in a Top 10 firm. 2-4 years relevant experience with a Top 5 or international corporate firm.
Corporate Solicitor Top 5 Corporate Associate Magic Circle This top flight corporate practice advises on a broad range of public and private This Firm has a cutting edge international corporate practice advising a broad deals across all industry sectors with transaction values ranging from tens of range of industries on a wide range of transactions. The Firm promotes a culture millions to multi billion Euro deals. With 3 years corporate experience, you would of inclusivity, transparency and responsibility; with 4 years corporate experience be leading a €300M deal with the partner in the background supporting you as you would take the lead on a large cross-border merger. With a 7 year track from required. You will deal directly with clients, have substantial lead lawyer NQ to Equity, this Firm has the shortest track of any Magic Circle firm and equally, exposure, participate in business development and work in a collegiate, friendly the Firm has lost less partners to its rivals than other City firms. 2-5 years relevant and future focussed team. 2-5 years relevant experience in a Top 10 firm. experience with a Top 5 or international corporate firm.
In-House Corporate Advisor Financial Institution Competition Associate Magic Circle Reporting directly to the group head of legal, you will advise the business on As one of the leading “go to” competition law practices in Europe, associates in corporate and restructuring issues across all bank divisions. You will have a high the group soon find themselves involved in decision making for some of the degree of visibility within the bank and as such you must be confident in your biggest household names and largest commercial organisations in the world on approach, possess the ability to work collaboratively, be an effective decision matters of strategic importance to those businesses. Dealing with a broad range maker and be capable of working autonomously. As this is a newly created of advisory and litigious matters, with 4 years relevant experience you could take position, you will have a unique opportunity to put your own stamp on the role. the lead on defending a statement of objections alleging cartel activity. 1-5 years 4-7 years relevant experience in a Top 10 firm. relevant experience with a Top 5 or international corporate firm.
Funds Solicitor Top 5 Dispute Resolution Associate Magic Circle Consistently ranked as a tier one adviser to the asset management industry, the This dispute resolution practice deals with complex litigation, domestic and team advises on UCITS, ETFs, money market funds, structured funds and international arbitrations (40-60% of the work), formal inquiries and inter- alternative funds invested in royalties, insurance products, currencies, real estate, jurisdictional disputes. As an associate you will gain experience across a range of private equity, commodities and bank loans. The Firm’s strong servicing ability commercial and financial disputes including defamation, insurance litigation, and multiple partner per client approach has seen it grow consistently over the banking litigation, professional negligence, administrative law and JR. Due to the last 5 years with a number of major new client wins. Personable, client focused international nature of the work and clients, there are also many opportunities and ambitious will be the hallmarks of the appointee. 2-5 years relevant for travel or secondment overseas. 2-4 years relevant experience with a Top 5 or experience in a Top 10 firm. international corporate firm.
For a confidential discussion on any of these opportunities, or other non-advertised positions in Dublin and London please contact: Bryan Durkan | t: +353 1 632 1852 | e: [email protected] | w: www.hrm.ie/legal taylorroot.com
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THE SR GROUP . BREWER MORRIS . CARTER MURRAY . FRAZER JONES . PARKER WELLS . SR SEARCH . TAYLOR ROOT LONDON . DUBAI . HONG KONG . SINGAPORE . SYDNEY . MELBOURNE 64 captain’s blawg Law Society Gazette www.gazette.ie October 2011
wild, weird and wacky stories from legal ‘blawgs’ and media around the world Don’t feed the solicitors
Thanks to solicitor Prince’s party over – oops, out of time Anthony Brady, from Fairview, Dublin, for this one. He says: Prince, the flamboyant pop The referee, Louis Crespo, rejected Revelations’ claim for “A friend of mine recently star with ten platinum albums, awarded $3.9 million to an additional $3.4 million in lost took this picture in LA. Have should pay nearly US$4 million Revelations Perfume and profits, finding they were too our circumstances really in damages for welching on his Cosmetics to cover expenditures “speculative.” He also denied deteriorated to this point?” promise to promote a perfume it had made in reliance on Revelations’ assertion that it was named after his latest CD, a Prince’s commitment to promote entitled to punitive damages. special referee in Manhattan a perfume, 3121, named for the Prince’s lawyer, Kenneth A concluded, after a four-day CD, reports the New York Law Novikoff said his client would inquest on damages. Journal. Mr Crespo, however, oppose the application. No point in crying over Social media Do ‘ugly people’ deserve spilt milk defamation A Limerick man who tried to legal protection? convince a storeowner that on the up A n economics professor is people could get help from the he slipped on spilt milk was Defamation cases in Britain making the case for legal Equal Employment Opportunity caught on camera opening and relating to social media content protections against so-called Commission. “We could even have spilling the liquid himself, the more than doubled in 2010 – from ‘looks-challenged’ people. Writing affirmative-action programmes for Irish Independent reports. The seven the previous year to 16. an op-ed for the New York Times, the ugly,” he suggests. 20-something was considering That’s against a backdrop of a 4% University of Texas professor How would legal decision- suing the store, but the footage increase in the overall number Daniel Hamermesh cites findings makers determine ugliness? It’s didn’t leave him much of a case of defamation proceedings of 86, that good-looking people make not that difficult, Hamermesh says. to argue. according to research carried out more money, find higher-earning “For purposes of administering “He told me he had phoned by legal information provider, spouses and get better mortgage a law, we surely could agree on his solicitor and that it was going Sweet & Maxwell deals. One study shows that Ameri- who is truly ugly – perhaps the to cost me thousands, but we Jeremy Clarke-Williams, head can workers assessed as being worst-looking 1% or 2% of the have heard nothing from his of media, libel and privacy at in the bottom seventh in terms of population.” solicitor yet, and if he does put Russell Jones & Walker, says: looks earn about $230,000 less in “You might reasonably disagree in a claim, we will ask the gardaí “The news that there’s been an a lifetime than similar workers in and argue for protecting all to prosecute him [presumably increase in defamation court cases the top one-third of looks. deserving groups,” Hamermesh the client!] for fraud,” said store involving online publications is Hamermesh offers a solution: says. “Either way, you shouldn’t be owner Shane Gleeson. not surprising. What is, perhaps, protect ugliness with small surprised to see the United States Litigation for such claims in surprising is how modest the extensions of the Americans heading toward this new legal Ireland has cost the insurance numbers remain – up from seven With Disabilities Act. Ugly frontier.” industry more than €100 million to only 16 in the last year.” annually.
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For the latest opportunities, please visit our website: www.benasso.com Talk to the Irish Legal Recruitment Specialists or contact Michael Benson BCL Solicitor in strict confidence at Benson & Associates, Legal Recruitment Specialists, Suite 113, The Capel Building, St Mary’s Abbey, Dublin 7, tel: +353 1 670 3997
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For more information please visit our website or contact Michael Benson bcl. solr. in strict confidence at: Benson & Associates, Suite 113, The Capel Building, St. Mary’s Abbey, Dublin 7. T +353 (0) 1 670 3997 E [email protected]