Contents GazetteLawSociety

Regulars Cover Story Food for thought President’s message 3 14 Food producers in the EU can avail of special intellectual property protection on the basis of the regional ‘natural’ and ‘human’ factors News 4 that make their product unique. But Irish food companies have been slow to use these rights. Brendan O’Connor tucks in Viewpoint 10

Letters 11 Let your fingers do the walking Book reviews 35 18 Keeping up-to-date is a challenge for every busy practitioner. The Law Society library’s on-line catalogue can save you time and shoe leather Briefing 37 by making sure that your legal research is quick and accurate. Here is a Council report 37 brief guide to getting the most out of this valuable resource Practice notes 38 Legislation The best laid plans update 39 20 The enforcement provisions of Solicitors the Planning and Development Act, Disciplinary 2000 significantly strengthen the Tribunal 41 power of the planning authority FirstLaw update 43 to tackle unauthorised development. Stephen Dodd cuts Eurlegal 47 through the red tape People and places 50 Treasures in your attic Obituary 51 24 A wealth of historical documents, going back perhaps 300 years, may be waiting to be found in the old papers locked away in your firm’s Professional attic. Carol Quinn explains why they need to be preserved information 53

COVER PIC: TRAVEL LIBRARY/ REX FEATURES Is your firm walking the plank? 27 The use of illegal software is an increasingly big issue for Irish business, and that includes law firms. So how can you make sure that unlicensed software won’t shiver your timbers? Dualta Moore fires a broadside at the software pirates

No pain, no gain 30 The EU’s financial services action plan is leading to a flood of new Irish legislation. David Dillon and Peter Stapleton discuss recent developments and look at the implications for the Irish financial services sector

Editor: Conal O’Boyle MA. Assistant editors: Kathy Burke, Garrett O’Boyle. Designer: Nuala Redmond. Editorial secretaries: Catherine Kearney, Valerie Farrell. Advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9, tel: 837 5018, fax: 884 4626, mobile: 086 8117116, e-mail: [email protected]. Printing: Turners Printing Company Ltd, Longford. Editorial Board: Pat Igoe (Chairman), Conal O’Boyle (Secretary), Tom Courtney, Eamonn Hall, Mary Keane, Ken Murphy, Michael V O’Mahony, Alma Sheehan, Keith Walsh

The Law Society of Ireland can accept no responsibility for the accuracy of contributed articles or statements appearing in this magazine, and any views or opinions expressed are not necessarily those of the Law Society’s Council, save where otherwise indicated. No responsibility for loss or distress occasioned to any person acting or refraining from acting as a result of the material in this publication can be accepted by the authors, contributors, Editor or publishers. The Editor reserves the right to make publishing decisions on any advertisement or editorial article submitted to this magazine, and to refuse publication or to edit any editorial material as seems appropriate to him. Professional legal advice should always be sought in relation to any specific matter.

Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4877. Volume 98, number 2 E-mail: [email protected] Law Society website: www.lawsociety.ie Subscriptions: €57.15

1 Law Society Gazette March 2004

President’s message Living in interesting times

he Chinese curse May you live in to the underlying truth interesting times never seemed more apt. of what is contained in On the one hand, the profession’s the pleadings should collective jaw dropped as we read apply equally to Tcomments made by the chairman of the defendants. Competition Authority, apparently suggesting that But, of course, for the Law Society’s regulatory role should be removed all the positive things from it and replaced with a single regulatory Law contained in the bill, Council for both solicitors and barristers. As you there is one huge ‘The proposal will doubtless all know by now, Mr Fingleton has negative, in the shape of the reduction in the statute since recanted and said that he was misquoted in the of limitations period for bringing a personal injury is unreasonable press. For more on this story, please see page 5 of claim from three years to one year. As the director and will end up this issue of the Gazette. Suffice it to say that this general points out elsewhere in this issue (page 7), whole episode has hardly filled us with confidence this change is grossly unfair to accident victims, victimising the that the Competition Authority study will be carried particularly victims of medical negligence, and is victims of out with an open mind and without personal bias. almost certain to lead to injustice. We have always said that the solicitors’ profession accidents’ has nothing to fear from a Competition Authority Victimising the victim study of the provision of professional services. The proposal is unreasonable and will end up Indeed, we have long believed that we have a good victimising the victims of accidents. It is story to tell and were glad of the opportunity to tell unreasonable because those who have been involved it (and, incidentally, the European Commission in a serious accident, and their legal representatives, seems to agree with us, as you will see from the cannot possibly know the full extent of the injuries report on page 6). However, recent events suggest or their likely long-term effects. Anyone practising that this might not be the case after all. If the in this area knows that a year is far too short a Competition Authority has made up its mind in timeframe to determine the outcome of an injury. advance of the study, then we have a great deal to Yet the minister, a practising lawyer himself, has fear indeed. persisted in pushing through this provision The other ‘interesting’ development has been the requiring the injured party to initiate a claim within recent publication of the Civil Liability and Courts 12 months. Bill by the Minister for Justice, Equality and Law I can see no moral or legal justification for this Reform, Michael McDowell. There are many provision, although the economic justifications have aspects to this bill that we broadly welcome. Indeed, been trotted out with mind-numbing regularity. many parts of the bill are based on Perhaps it’s not too late to hope that some modicum recommendations for reform of the personal injury of common sense will afflict the proponents of this litigation system that the Law Society published in bill. Or, failing that, some compassion for those October 2002. And we are happy to claim some whose lives have been shattered through the credit for the more balanced approach to be found negligence of others. in the bill, a balance that was absent when the heads We will see. The curse of interesting times, of bill were published last July. In this regard, for indeed. example, the minister seems to have been swayed by our arguments that the proposed new requirement Gerard F Griffin, on plaintiffs to swear a verifying affidavit in relation President

3 Law Society Gazette March 2004 News

SEMINAR ON ARBITRATION AND MEDIATION New Disciplinary Tribunal The Young Members Committee of the Dublin Solicitors’ Bar Association will hold a seminar chairman lays down the law on Arbitration and mediation in practice on 11 March in the he new chairman of the some time or another the press Shelbourne Hotel, Dublin 2, TSolicitors Disciplinary are going to attend one of starting at 6pm. Laurence Tribunal has issued a stark these hearings, particularly if Fenelon from Reddy Charlton warning to errant solicitors: it’s a high-profile case. McKnight will speak on ‘You don’t want to come ‘It is extremely important arbitration and Paulyn Marrinan before us’, said Frank Daly. that the profession knows what Quinn SC on mediation. Daly, president of the Law happens and if there are Society in 1996/97, took over complaints against individuals, NEW VAT CLAUSE IN STANDARD as chairman of the tribunal and particularly a series of CONTRACT three months ago, following complaints, that people know The Conveyancing Committee the retirement of Tom Shaw, who’s been complained about has inserted a new VAT clause who was Law Society and what the disciplinary into the Law Society’s standard president in 1987/88. procedure is. It would seem to contract for sale. The text has The tribunal is appointed me that it’s a very effective been circulated to solicitors and by the president of the High weapon. will be incorporated in the next Court and is completely ‘The poor respondent print run of the contract docu- independent of the Law Frank Daly: ‘Don’t come before doesn’t particularly want his us. You’re not going to like it’ ment. The committee emphasis- Society. The vast majority of name to be read by his peers, es that this is an important complaints to the tribunal but he shouldn’t have gotten amendment and practitioners come from the Law Society, very seriously, and the whole himself into the mess that he’s should make themselves as but individuals who are thing is recorded’. in. An enormous number of familiar with it as possible. unhappy with the society’s The new chairman is aware cases that we have could have complaints-handling of the disquiet in the been resolved by the BCM OPENS FIRST HEALTH procedure can apply to the profession over the reports of individuals involved’. SERVICES DEPARTMENT tribunal directly. Disciplinary Tribunal hearings The Disciplinary Tribunal The specialist health services ‘The disciplinary hearing’, being published in the aims to deal with all department of Dublin law firm says Daly, ‘is almost like a Gazette. The issue was even complaints made to it within a BCM Hanby Wallace was Circuit Court trial’. It’s in debated at last month’s Law year, he says: ‘We want to be officially opened by High Court our new building in Bow Society Council meeting (see fair, we want to be firm and we president Joseph Finnegan on 19 Street, which is set up like a Council report on page 37 of want to be fast’. February at the firm’s new court room. The Law Society this issue), but Daly is And he concludes: ‘You offices at the former children’s is represented by either the unapologetic. don’t want to be before us. Do hospital at 88 Harcourt Street, Law Society solicitor or ‘It’s a public forum’, he says. your business with the Law Dublin 2. The new unit, the first sometimes counsel, and the ‘Anyone can come in off the Society. Do it with the in any Irish law firm, provides respondent solicitor often street and sit down and watch complainant. Don’t come specialist legal advice across comes in with senior and it – and that includes the press. before us. You’re not going to the health services. junior counsel. It’s treated It’s probably inevitable that at like it’. ONE TO WATCH: NEW LEGISLATION EU (Lawyers’ Establishment) out the local qualification and other member states to facilitate confirmation of payment of the Regulations 2003 cannot be required to pass any implementation of the directive and annual contribution to the These regulations (SI 732/03) to examination or test in order to do prevent abuse. An application to compensation fund payable by implement the Establishment so. register must be accompanied by: solicitors directive for lawyers (directive •A certificate confirming the • Confirmation of professional 98/5 of the European Parliament Registration applicant’s registration with the indemnity insurance cover or and council, 16 February 1998) Article 3 of the directive makes it home authority membership of a professional were finally signed into law on 29 obligatory for the immigrant lawyer • Confirmation of an indemnity guarantee fund, in accordance December 2003, over three years to register with the competent against any losses arising from with the rules of the home after the agreed implementation authority in the state in which he is claims against the applicant in member state date in March 2000. The directive practising. The regulations provide respect of professional activities • Confirmation that the cover is entitles a lawyer to move to any for registration of immigrant in the state, in accordance with equivalent in terms of the other EU member state and lawyers by the Bar Council and the the rules of the Law Society or conditions and extent as that practice law under his home title. Law Society (competent Bar Council required for solicitors and After a period of three years, the authorities), who must liaise closely • If the applicant wishes to pursue barristers, or, if not equivalent, visiting lawyer may choose to take with corresponding authorities in the activities of a solicitor, that additional cover has been

4 Law Society Gazette March 2004 News Competition boss retracts comments, saying he was ‘misquoted’ in press ompetition Authority that lacks integrity. It is difficult effect. The authority has no Cchairman John Fingleton to believe in the integrity of a power to change how the has backed away from claims that process whose conclusions are profession is regulated, and he wants to remove the Law published in advance. merely gives advice to Society’s regulatory role, saying ‘I write this letter to seek an government’. that he was misquoted in the undertaking from you that the At the time of going to press, Irish Times. In a recent interview Competition Authority’s study it was unclear as to whether the with the newspaper, he declared in relation to solicitors will be Law Society was prepared to that ‘it is time to remove the conducted in accordance with reschedule its planned meeting Law Society’s regulatory role, fair procedures and with an with the Competition and to bring all barristers and open mind. In addition, I am Authority. Acknowledging solicitors into a single profession seeking an assurance that your Fingleton’s climbdown, of lawyers’. personal bias in favour of president Gerard Griffin wrote As a result of the interview, certain conclusions, as set out in to the authority chairman the Law Society cancelled a today’s Irish Times, does not saying that he would have to Fingleton: ‘my mind is not meeting with the Competition represent the pre-judged views made up’ consult with members of the Authority that was due to take of the authority. Law Society Council before place the day after Fingleton’s ‘We are entitled to be respect of any issue … the deciding on the appropriate comments were reported, and assured that conclusions other report in the Irish Times does course of action. called on the chairman to step than those already indicated by not accurately reflect what I • Separately, the Southern aside while the study of the you may truly be reached by the said. In the interview with the Law Association has called on professions was being carried authority at the end of this Irish Times, I made it very clear John Fingleton to resign out. study. We believe that any such that I was merely outlining the immediately as a result of his In a stinging letter to assurance should be issues under examination, and media comments, saying: ‘It Fingleton, Law Society president underpinned by an agreement not expressing any view on seems that the chairman has Gerard Griffin said he was from you to step aside and to them’. already made his mind up. He is ‘dismayed’ to read his comments, play no further role, directly or He added: ‘We very much clearly more interested in the particularly because they ‘were indirectly, in this study’. welcome the input of the Law hydrogen of self-publicity than made by the holder of a statutory Responding the next day, Society in the preparation of the oxygen of objective analysis office in a statutory body which Fingleton said he was ‘happy to the consultation paper … Only … He must resign now to is in the process of conducting a confirm that the authority’s in the preparation of the final ensure the integrity of the statutory study’. study has always been and will conclusions and important study that is And he continued: ‘In the continue to be conducted in recommendations will the underway, and which is light of your remarks today, we accordance with fair procedures authority make up its mind. welcomed by solicitors, who believe that the Competition and with an open mind. I would Even then, the final conclusions believe that they have nothing Authority’s study of the also like to state categorically and recommendations of the to fear from an independent solicitors’ profession is a process that my mind is not made up in authority have no decisive and objective analysis’.

arranged lawyer may be registered with home state and EU law, and has a Scots solicitors (and possibly •Where required, translations of both. Regulation 4(3) provides for right of audience before courts and some Scandinavian lawyers), and documents representation at least involving tribunals in conjunction with a is implemented in regulation 10(4). • The fee specified by the the right to vote in elections to the locally-qualified lawyer. Article 5(2) competent authority. professional governing bodies (Bar provides that, in states where Rules of professional conduct Council or Law Society). conveyancing and probate work is Article 6(1) of the directive This will result in a registration reserved to a certain category of provides that the immigrant lawyer certificate and entry of the Scope of the immigrant lawyer’s lawyer, lawyers coming from other is subject to the rules of applicant’s name on a public right to practice states where such activities are professional conduct that apply to register established for this Article 5 of the directive provides carried on by non-lawyers can be lawyers in the host state. Thus, purpose. A registration certificate that the immigrant lawyer can carry excluded from practising such immigrant lawyers in Ireland will be must be renewed annually. on the same activities as he would activities. This would seem to bar subject to the professional conduct Registration may be subject to be entitled to in his home state, lawyers coming from most EU and the solicitors’ accounts rules conditions. It is possible for an under his home professional title. member states from conducting if they register with the Law applicant to apply to the He can advise on the law of the conveyancing and probate work, Society. alternative registering body, but no host state as well as that of his with the exception of English and Article 7 provides that if the CONTINUED OVERLEAF ➝

5 Law Society Gazette March 2004 News

COMPENSATION FUND PAYOUT Competition kudos from EC The following claim amount was admitted by the Law hich of the EU member Index of level of regulation in EU member states Society’s Compensation Fund Wstates is officially the one Committee and approved for with the least regulation of 35 payment by the Law Society professions? In other words, 30 Council at its meeting in which is the most liberal – that 25 February: Michael P is to say, the least restrictive in 20 McMahon, 5/6 Upper competition law terms – in its 15 O’Connell Street, Dublin 1 – regulation of the major 10 €8,266. professions? The answer is Ireland, writes Ken Murphy. LEVELS OF REGULATION 5 SOLICITORS’ BENEVOLENT The European Commission 0

ASSOCIATION AGM UK

published a report on ITALY SPAIN

th FRANCE AUSTRIA FINLAND IRELAND SWEDEN The 114 AGM of the BELGIUM

competition in professional GERMANY DENMARK INSUFFICIENT DATA FROM GREECE AND PORTUGAL INSUFFICIENT DATA

Solicitors’ Benevolent LUXEMBOURG services on 9 February. That NETHERLANDS

Association will be held in report refers to a study, Engineers Architects Accountants Lawyers Pharmacists Blackhall Place on Wednesday commissioned by the European 21 April at 12.30pm. The Commission itself, by a Vienna- architects, accountants, competitive – was Italy. Next to agenda includes the annual based consultancy firm. Under pharmacists and, yes, lawyers. Italy was Austria, followed by report and accounts for the review was the level of regulation, The most restrictive in Germany, Luxembourg, Spain, year ended 30 November in accordance with certain regulatory terms – what the France, Belgium, Sweden, 2003 and election of defined indices, across five European Commission would Finland, the Netherlands, directors. professions, namely, engineers, view as the most anti- Denmark, the UK and, finally, as the shining light among EU member states on this index, Ireland. Judicial review examined by LRC Of course, the best can The recommendations of the which usually involves an ex case – the report recommends always get better. Still, one Law Reform Commission’s parte application and has the one general time limit of six wonders, with the ‘target-rich Report on judicial review effect of filtering out unargu- months. environment’ for competition procedure, published last able cases quickly, should be The report also says that, investigation in Ireland referred month, should improve the retained, but that in excep- because a judicial review can to recently by the chairman of speed and efficiency of tional cases the judge should involve multiple legal points, the Competition Authority, procedures used by the High have the power to require that with some being successful John Fingleton, why are the Court to examine the both sides are involved. and others failing, there limited resources of Ireland’s decisions of lower courts or Where there are currently should be a special provision Competition Authority now quasi-judicial bodies. two different time limits for for apportioning costs so that being devoted to reviewing The commission recom- judicial review applications – only a portion of costs are competition in the professions? mends that the preliminary six months and three months, awarded where only part of the Because it is a target-rich ‘leave’ stage of judicial review, depending on the nature of the case is successful. environment for newspaper headlines, perhaps?

➝ CONTINUED FROM PAGE 5 ‘obligations in force in the host can show that he has ‘effectively lawyer is to furnish the host provides that a refusal can be member state’ are not complied and regularly’ pursued ‘an activity competent authority with proof of made by a reasoned decision, with, the rules of procedure, in the law of Ireland’ for a period the practice of Irish law. He is to subject to appeal, where this is in penalties and remedies provided of three years. An activity of Irish provide the competent authority the public interest, notably for in the host member state shall law includes EU law, and under with any relevant information and because of disciplinary apply. Therefore, immigrant regulation 16(4), in certain documents, notably on the number proceedings, complaints or lawyers practising as solicitors are circumstances, at the discretion of of cases dealt with and their incidents of any kind. This right of subject to the full rigour of the the competent authority, nature. The competent authority refusal appears to be premised on Solicitors Acts and regulations. exemption may be granted if the may verify the nature of the activity conduct of the applicant, rather This is reflected in regulations 11 period for which the applicant pursued. If necessary, it can than legal competence or and 12 of the 2003 regulations. practised Irish law was less than request the applicant to provide knowledge. It is reflected in three years, provided professional oral or written clarification or regulation 16(7). G Integration/admission activities were pursued for at least further details on the information Under article 10(1), an immigrant that period in the state. and documents provided. Alma Clissmann is the Law lawyer is entitled to be exempted Regulation 16 implements the The article gives very limited Society’s parliamentary and law from taking the aptitude test if he requirement that the immigrant grounds for refusal. Article 10(4) reform executive.

6 Law Society Gazette March 2004 News McDowell bill ‘will lead to injustice’ he Law Society has broadly programme entitled Bad of justifiable medical negligence Twelcomed the recent medicine last December, experts claims are currently being publication of the Civil Liability in the Harvard Medical School brought. With less time to and Courts Bill by justice are quoted as saying that it was investigate and initiate a claim, minister Michael McDowell. likely that 14,000 people are even fewer victims will receive Much of the bill is based on injured or killed in Irish the redress and vindication to recommendations for reform of hospitals every year as a result which they are entitled’. the personal injury litigation of preventable medical error. And he added: ‘The only system, published by the Law Of these, only a small beneficiaries will be negligent Society in October 2002. proportion, less than 4%, ever medical practitioners. The But according to Law Society sue’. PrimeTime described the culture of cover-up will director general Ken Murphy, situation in Ireland as ‘anything continue to thrive. It will be some aspects of the bill, McDowell: his bill is ‘good news but a compensation culture’. good news for bad medicine. particularly the reduction of the for bad medicine’ According to Murphy, the The proposed reduction in the statute of limitations period for society views it as ‘almost limitation period is being bringing a claim from three defendants. The rules of court incredible in the circumstances introduced to satisfy the years to one year, ‘are grossly should not suggest that the that the government’s response demands of the business and unfair to accident victims and evidence of one party is is to reduce the period within insurance lobbies. It is clearly will lead to injustice’. inherently more credible or which a negligence claim can contrary to the interests of He said that the society was incredible than that of another be brought from three years to accident victims and particularly pleased that a party. Despite initial reluctance one year. What will be the undoubtedly will lead to number of its arguments had to accept it when the point was result? Only a tiny proportion injustice’. been accepted by the minister, put by us to the minister at a with the result that the bill as meeting last November, he has published was different from, now accepted the validity of the and more balanced than, the Law Society’s argument. As is PIAB to open for business heads of bill published last July. clear from section 13 of the For example, the society had bill, defendants must also swear on 1 May, says Harney argued that, in the interests of affidavits’. When is the Personal Injuries Assessment Board going to open for balance, the proposed new But the society remains business? The legislation is in place but the ministerial commence- requirement on plaintiffs to totally opposed to the proposal ment orders have not yet been made, writes Ken Murphy. swear a verifying affidavit in to reduce the statute of The PIAB is currently putting in place its infrastructure, including relation to the underlying truth limitations period for personal premises, staff and an IT system. It is clearly running behind time, of what is contained in the injury actions from three years as it had been politically promised that it would be operational by 1 pleadings should apply equally to one year. Murphy believes January 2004. to defendants. that the potential for resulting The best guess as to when it will open for business is 1 May ‘To provide otherwise would injustice in cases of every kind 2004. Responding to a Dáil question from Brendan Howlin, the have implied that only plaintiffs is particularly well illustrated by Tánaiste and Minister for Enterprise, Trade and Employment, Mary had the potential to lie or a consideration of medical Harney, recently said: ‘We expect a commencement date of some exaggerate or have an interest in negligence cases. time in April or 1 May, perhaps the latter as it is the start of a doing so’, says Murphy. ‘The He points out that ‘in RTÉ’s calendar month, and we are working towards that date’. same is equally true of PrimeTime investigates Marital breakdown with minimum heartache leading American expert on lawyers are involved from the process. It excludes law should shift the solicitor’s Acollaborative law, Pauline outset. It is a new method of correspondence. Crucial to the traditional role in marital Tesler, will give a two-day practice, where lawyers bring process is that lawyers on both breakdown cases from training course on the subject reasoning and problem-solving sides can work together ‘warrior’ to ‘facilitator’, where at the offices of solicitors skills to a dispute, but litigation towards an agreement that is the main issue is to help the McCann FitzGerald on 16-17 is not an option. Among other satisfactory to both partners. spouses to reach an April. things, the process involves a The man with the original agreement. Collaborative law is a ‘court- participation agreement, all- idea, US family law Solicitors wishing to attend free’ process for marital party settlement meetings and, practitioner Stuart Webb, felt the training course should breakdown cases. Like when matters are finalised, a that in bringing couples from contact Muriel Walls at mediation, it prioritises talking, signed agreement that is marital breakdown to post- McCann FitzGerald, 2 dialogue and settlement. In implemented throughout the separation, the legal system Harbourmaster Place, IFSC, contrast with mediation, subsequent separation/divorce failed families. Collaborative Dublin 1, tel: 01 829 0000.

7 Law Society Gazette March 2004

News HUMAN RIGHTS WATCH Human rights for disabled people In the first of a new series, Alma Clissmann reports on developments in relation to the practical application of the European convention on human rights

he incorporation of the legitimate aims of the measure. stroke meant that the local TEuropean convention on It must also fulfil a ‘pressing authority house in which she, human rights into Irish law by social need’. In applying article her husband and six children the ECHR Act, 2003 has a 8(2), a critical issue is the extent were living became totally potentially huge significance for to which interference with rights unsuited to her needs and disabled people. In particular, can be justified on the ground of caused her severe discomfort, article 8, the right to private and lack of resources or priorities in humiliation and dependency, family life, is wide ranging in its using resources. as well as depriving her of her scope, applying to such matters It has long been established role as a mother in caring for as the freedom to express one’s that the ‘respect’ for private and her children for an sexuality, to consent to medical family life guaranteed by article unnecessarily long time (20 treatment, to have access to 8 imposes on the state not months). The defendants one’s children, to form and to merely the duty to abstain from knew of these problems but keep social relationships, and to inappropriate interference but • Price v UK ([2001] 34 dragged their feet about protect one’s reputation. also, in some cases, certain EHRR 1285). Ms Price was a finding her different In a criminal case involving positive duties (Marckx v victim of thalidomide and had accommodation. The judge her husband, Z was identified in Belgium [1979] 2 EHRR 330; X numerous health problems found that the case was finely the Finnish courts as the spouse and Y v Netherlands [1985] 8 and four foreshortened limbs. balanced in relation to article of a person who was HIV EHRR 235). In particular, it She was imprisoned for three 3, and a factor in this was that positive. The European Court of places positive obligations on days and treated as a normal there was no deliberate Human Rights (ECHR) held public authorities to provide prisoner, which in her intention to humiliate or this to be in breach of her right protection for an individual condition amounted to cruel debase. He found a clear to privacy. The Finnish court against the activities of others. and degrading treatment breach of article 8. should have exercised its In the 2002 case of Kutzner v under article 3. The court discretion and withheld Germany, the court, for the first held that in order to avoid The ECHR Act, 2003 requires publication of the names in the time, recognised the obligations unnecessary hardship – that judicial notice to be taken of the judgment. Disclosure could of a state to provide support to is, hardship not implicit in case law of the ECHR. The dramatically affect her personal, disabled parents in order to the imprisonment of an able- scope for the application of this social and work life and expose maintain their right to a ‘family bodied person – she had to be body of law to the circumstances her to opprobrium and the risk life’ (46544/99, 26 February treated differently from other of disabled people is for Irish of ostracism (Z v Finland [1998] 2002). people because her situation lawyers to explore on behalf of 25 EHRR 371). This judgment The following are four recent was significantly different clients to whom the need for may have important cases from the ECHR and the • The Queen (A and B) v East human rights is sometimes ramifications for HIV/AIDS UK courts under the Human Sussex County Council painfully real and urgent. sufferers and arguably for others Rights Act 1998 that are ([2003] EWHC 167 I am indebted to Caroline with disabilities or health imaginative and important [Admin]). This case Gooding of the UK Disability conditions that are known to decisions for people with concerned two disabled sisters Rights Commission for the use of lead to discrimination. disabilities: who requested frequent information in her paper The Because the scope of article 8 • Botta v Italy ([1998] 26 manual lifting, which was application of the ECHR in is very wide, the real question in EHRR 371). Mr Botta was a contrary to policies of the British courts in relation to many cases is likely to be not disabled man who could not defendant that sought to disability issues, available on the whether article 8 applies but get access to a private beach protect the health and safety of Law Society website under ‘society whether the public authority can and the sea because it was not its employees. The court ruled committees’, ‘law reform’, ‘seminar justify its actions by reference to equipped with disabled in favour of the applicants and papers’ at www.lawsociety.ie. G article 8(2). It must show that its facilities. The court against the local authority’s interference was justified by a disallowed his claim, but blanket ban on lifting. It held Alma Clissmann is the Law law, that it was not vague or accepted the principle that a that, when drawing up lifting Society’s parliamentary and law uncertain, that it had a state does have obligations of guidelines, it is necessary to reform executive. The society hopes legitimate aim, and that it was this type where there is a strike a balance between the to report regularly on developments necessary in a democratic society direct and immediate link rights of the disabled person in the application of the ECHR and for the reasons specified in between the measures sought and the carer Act, 2003. Please send any article 8(2). Above all, it must by an applicant and the • Bernard v London Borough of citations of the act in pleadings or show that the means employed latter’s private and/or family Enfield ([2002] EWHC judgments to a.clissmann@ were proportionate to the life 2282). Mrs Bernard’s severe lawsociety.ie.

9 Law Society Gazette March 2004 Viewpoint Remember when you wanted The Irish Traveller Movement has established a legal unit to represent the interests of travellers more effectively – and it’s looking for volunteers, writes Kevin Brophy ernard is 16 years of age. settle in one place, there are BHe has suffered from often well-publicised Hurler’s Syndrome since he was difficulties in allowing traveller born. When he was one year children into a particular old, he underwent a bone- school. The vast majority of marrow transplant. This saved travellers are law-abiding his life, but the symptoms of citizens who want to be able to the disease continued to affect continue to travel but who him. Hurler’s Syndrome is a want to be able to live in degenerative disease of the reasonable conditions. Many nervous system: the liver, travellers want to retain their spleen, brain and heart are all nomadic lifestyle. affected, and the symptoms are irreversible and worsen Effective representation progressively. The syndrome is The Irish Traveller Movement characterized by severe (ITM) has recently established cognitive degeneration, corneal On the margins: lawyers can help protect travellers’ fundamental rights a legal unit, one of the aims of clouding, stiff joints, claw which is to represent the legal hands, dwarfism and numerous mother tried to persuade the obtaining the replacement interests of Irish travellers heart problems. As the disorder local authority to provide them caravan without the pressure more effectively. Readers will progresses, the organs become with a replacement caravan. brought to bear on the local appreciate that few solicitors in enlarged and the skeletal The best they could do, up authority by her legal advisors. Ireland act on behalf of deformities cause problems in until very recently, was to There are currently 1,200 travellers in relation to walking and using the hands. obtain approval for a £2,000 individual families (and many accommodation difficulties or Sufferers tend to die in their loan. Eventually, in utter travellers have very large and eviction problems or many late teens. frustration, Bernard’s mother young families) living on the other traveller-specific issues. sought legal advice and, side of the road around Ireland. One of the reasons for this is Appalling conditions following the issue of They are evicted from location that many travellers are not in Bernard has numerous other proceedings, the local authority to location, often having to a position to discharge fees and abnormalities, including severe provided her with a wheelchair- leave one county to find a place are often very wary of curvature of the spine, hip accessible caravan suitable for a to stay on a regular basis, only approaching solicitors in the abnormalities and severe in- person with Bernard’s to have the same thing happen first place. In relation to turning of the knees, as a result disabilities. She feels that she in the next county. As a result, accommodation cases, a further of which he cannot stand. His would not have succeeded in schooling suffers. If they can difficulty arises where travellers eyesight is minimal and he is need assistance at very short confined to a wheelchair. He notice. suffers from moderate HOW YOU CAN HELP The most common difficulty intellectual disability and has One of the objectives of the ITM’s legal unit is to establish a faced by travellers is where very poor hearing. network of solicitors throughout Ireland who will indicate their they are on the side of the road Bernard is a traveller. He willingness to act on behalf of travellers where the need arises. The and they are approached by lived in a 22-foot caravan on a legal unit will act as a source of expertise and advice in relation to gardaí or representatives of the serviced local authority halting travellers and the law, and will provide each interested solicitor with local authority and told to site. He has two younger a legal pack covering the major areas of law that affect the traveller move on. They do not know siblings who also suffer from community. what their legal rights are and Hurler’s Syndrome. He shared The legal unit will also keep interested solicitors informed of any they have no effective remedy the accommodation with his new developments in the law, and any training or seminars relevant to this type of short-term mother and father, five brothers to the area. The legal unit believes that this is an ideal opportunity eviction. and one sister. He used to sleep to create a partnership for real change between the legal profession The ITM legal unit hopes to on a piece of sponge in the and one of the most marginalised groups in Irish society. be able to establish a panel of middle of the living area. There Participation in the network is purely on a voluntary basis and solicitors around the country was no running water or central involves no commitment to take individual cases. Any solicitor or who are prepared to act on heating in the caravan, and no firm interested in participating in the network, or in finding out more behalf of travellers, if necessary internal toilet or showering about the work of the legal unit, should contact 01 679 6577 or e- on a pro bono basis. This would facility. mail: [email protected]. mainly be in relation to For eight years, Bernard’s accommodation issues but

10 Law Society Gazette March 2004 Viewpoint to make a difference? VOX would also cover other matters. including the right to pursue citizens who just want to live a POP The legal unit is preparing a their traditional way of life. reasonable life. They do not legal pack that will be One of these fundamental deserve to be marginalised or Do you agree with circulated to solicitors who are rights is the right to treated as third-class citizens. the Competition interested in joining the panel, accommodation. They should not be Authority chairman’s and this would provide them condemned to live in recent ‘suggestion’ that with the information necessary Working for change conditions that the rest of us there should be a single to enable them to prepare cases In a very large number of would not tolerate. They regulatory body for and effectively represent cases, local authorities in should not have their weddings solicitors and barristers? travellers in their area. There Ireland do not believe that cancelled at the last minute are a number of solicitors there is any legal onus on them because the local hotel learned No, I suppose around the country who are to provide accommodation for that they were travellers. They I take the willing to help by providing travellers. A traveller may be should not be subjected to conservative information and assistance. It is entitled to a bay on a halting ‘blanket bans’ by publicans. position. The system seems hoped that solicitors will apply site and may be entitled to They should not be refused to have to be placed on this panel in certain basic facilities there, accommodation because local worked well so order that each centre of but he is not entitled to a home residents believe their estate ‘is far, and if it’s not broken, population and each county on the site. If a disabled child is not meant for travellers’. don’t tinker with it. and province in Ireland will be living on a halting site in a As far as traveller children Russell Houston, BL adequately represented. completely unsuitable caravan, are concerned, Bernard is not No. The The ITM believes that the attitude of the local alone, and his case is far from Solicitors travellers represent a separate authority is that it has no unique. His needs and the Disciplinary ethnic group within Ireland. obligation to provide any needs of other travellers with Tribunal and The minister for justice, facilities other than electricity, disabilities are fairly basic: hot the Barristers equality and law reform does running water and perhaps a water, a toilet, heat, the ability Collateral not appear to accept this, and vandal-proof unit in which to to have a shower – a little Conduct Tribunal work very effectively. neither do many of those in wash and cook. The ITM dignity. Lawyers can help There is lay representation in the judiciary. There is a believes that this must change. change this. Remember how both, and I don’t think that perception that if travellers Many of us became lawyers you used to feel when you first anybody who has ever made a wish to choose a lifestyle of because we believed that we studied law. You can still make complaint could seriously ‘deprivation and neglect’, then could make a difference – that a difference. G contend that it hadn’t been properly dealt with by either on their own heads be it. The we could help bring about body. I believe that each of us ITM believes that travellers – change. Travellers in Ireland Kevin Brophy is principal of the regulates our own profession along with everyone else in this have a very negative image: Dublin law firm Brophy Solicitors very well. country – have basic, some of them deserve this, but and chairman of the Irish Fergal Foley BL fundamental human rights, most of them are law-abiding Traveller Movement’s legal unit. Both have vast amounts of work. I think it would Letters be virtually impossible. Romaine Scally, Romaine Scally & Co, Hasta mañana, baby Solicitors

From: Brendan Walsh, Faculty of winter 2003/2004 issue, has an 1) Clients purchasing The nature of Notaries Public in Ireland article by a London-based properties abroad should be solicitors’ ou have previously run solicitor and notary public, alerted to the danger as work is Yarticles of assistance to Hans Hartwig, concerning outlined above different to barristers’ in those purchasing properties Spanish powers of attorney, 2) Practitioners here may wish that they are abroad – principally in Spain. which contains an interesting to insert in Irish wills after engaged with In particular, your articles have point for practitioners. I quote: the usual ‘I hereby revoke all the public on a daily basis, so advised that in certain ‘An ancillary point: we have seen former wills’, the words their regulator has a different circumstances it would be a number of wills by Spanish ‘excepting any testamentary role. It should be in the necessary for the Irish owner lawyers which accidentally revoke disposition made by me in interest of the public to have one regulator assigned to to execute a Spanish will. the client’s English will, and connection with any each arm of the legal The Notary, which is the doubtless the reverse also happens. property of mine outside the profession. magazine of the Notaries’ We warn clients of the danger’. Republic of Ireland’ or Cormac O’Ceallaigh, Sean Society in the UK, in its Two points arise (obviously): words to that effect. O’Ceallaigh & Co, Solicitors

11 Law Society Gazette March 2004 LAW SOCIETY COMPANY FORMATION SERVICE

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● Annual dinners ● Retirement parties ● BBQs ● Family days For further information, application form and form A1 see our website www.lawsociety.ie or contact us directly by CONTACT THE CATERING MANAGER Tel: 01 672 4800, fax: 01 672 4801 e-mail: [email protected] or E-mail: [email protected], website: www.lawsociety.ie tel (01) 6724914/6 or fax (01) 6724915 Law Society of Ireland, Blackhall Place Letters Decline and fall of common sense in Italy From: Henry Rodgers, Rome, Italy €309,750 a day. No member will follow the senate’s line and commission’s decision totally n last November’s issue of the state has ever been fined for thus pass into law a decree wrong, including the identity of IGazette (Viewpoint, page 8), I discrimination. which the commission deems the plaintiff on whose cases the wrote about how Irish and In the Italian legal order, discriminatory. enforcement proceedings are other foreign lecturers in Italian decrees of the government must The commission’s based. universities have had to have be ratified by both houses of recommendation on fines for That plaintiff is Spanish recourse to all the remedies for parliament within 60 days of Italy was widely reported in the citizen, Pilar Allué, whose cases redress available to European their publication in the Gazzetta international press. I note from for parity of treatment before citizens in their 17-year battle Ufficiale to become law. the last issue of the Gazette that the Court of Justice are to have their rights to parity of routinely included in treatment enforced. The contemporary textbooks on EU commission’s article 228 law. Pilar will shortly retire enforcement proceedings from her position at the against Italy, in which the University of Venice. Her first foreign lecturers are landmark case was referred to complainants, were then at the the Court of Justice in 1987 reasoned opinion stage. which decided in her favour in On 4 February of this year, 1989. In the intervening years, the commission referred the Following the commission’s the Law Society gives annual she has never enjoyed the non- enforcement proceedings to the decision, sympathetic Italian awards for excellence in legal discriminatory working Court of Justice. In its senators proposed amendments journalism. Certainly, over the conditions to which her accompanying press release, it which would have brought the years, the coverage by the Irish victories should have entitled explained why a last-minute decree more into line with EU press of this long-running her. decree law, introduced by the law. These were rejected, but discrimination case has been This speaks volumes for the Berlusconi government on 14 one amendment rendering the comparatively outstanding. By difficulties encountered by January, was unsatisfactory. The decree even more non- contrast, prestigious foreign citizens in Italy in commission recommended what compliant was approved. It is international titles recently got having their rights to parity of may yet be a historic fine of probable that the parliament the legal background to the treatment enforced. Change in Dublin City Council housing consents From: Terence G O’Keeffe, Law Heretofore, following a as the case may be) by the Please further note that once Department, Dublin City Council successful application to the council’s housing department a letter of Final consent to ith effect from 1 January council’s housing department, and, following the compliance transfer has issued, it will not W2004, Dublin City such consent was, on with the conditions in that be necessary to seek the Council is changing the form application to the law agent, letter, the council’s housing council’s consent to mortgages in which it gives consent under endorsed under seal on the department will issue a letter of, or further transfers of, the the Housing Act, 1966, section transfer or mortgage. of Final consent to transfer (or property. 89(c), and the Housing Act, With effect from 1 January a letter of Final consent to Specimens of the consent 1966, section 90(6)(c), as 2004, such consent will no mortgage, as the case may be), letters may be inspected in the substituted by the Housing longer be endorsed under seal which will permit the news section of the Dublin (Miscellaneous Provisions) Act, on the transfer or mortgage, registration of the transfer or City Council website at 1992, section 26(1), to the but instead a successful mortgage in the Land www.dublincity.ie. transfer or mortgage of application will result in the Registry without the necessity I shall be most grateful if dwellings acquired under the issue of a letter of Conditional of having same formally you would bring this matter to local authority tenant purchase consent to transfer (or a letter of sealed by Dublin City the attention of members of scheme. Conditional consent to mortgage, Council. the society in the Gazette.

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13 Law Society Gazette March 2004 Cover story Food for Food producers in the EU can avail of special intellectual property protection on the basis of the regional ‘natural’ and ‘human’ factors that make their product unique. But Irish food companies have been slow to use these rights, which could have consequences for one of our major industries. Brendan O’Connor tucks in

s there a difference between Imokilly Regato cheese and Regato made by the Irish Dairy Board and sold under the Kerrygold brand? Is there a difference between Clare Island Salmon Iand other Irish salmon? Epicureans might enjoy arguing the toss over dinner, but in law there is no argument: they are legally distinct. Imokilly Regato and Clare Island Salmon are quality foods protected under EC council regulation 2081/92 on geographical indications and designations of origin for agricultural products and foodstuffs. The other products are not.

14 Law Society Gazette March 2004 Cover story thought

Celebrity chef Darina Allen has been arguing that geographical indications Ireland has many such quality foods but that Irish such as Roquefort, producers have not taken up their right to have their Parmigiano names protected under EC law. She cites barm brack, Reggiano, Parma potato cakes, fudge, cheeses, rare breeds of Irish ham, Champagne apples, potatoes, cabbage and vegetables such as the or Cognac. Tipperary turnip (which is, in fact, a swede). Some According to producers of good Irish foods choose to protect the article 22.1 of names of their products through trademarks. the World Trade However, trademarks and geographical indications are Organisation’s agreement on different types of intellectual property with different trade-related intellectual property objectives. Trademarks do not ensure that products rights, geographical indications (GIs) identify goods as have specific traditional characteristics. originating in a place which gives the good a quality, reputation or other characteristic that is attributable • Protected Food glorious food to its geographical origin. The EC definition differs designations In the EC, more than 600 traditional and quality somewhat, but the basic concept is the same. EC law of origin products are protected as ‘geographical indications’ restricts protection to certain types of food products • European and ‘designations of origin’. Of these, Ireland has just and does not allow for protection of traditional Union versus three: Clare Island Salmon, Imokilly Regato and products such as Waterford Crystal. the New Timoleague Brown Pudding. Only Finland and The purpose of the community rules for the World Sweden have less, with one and two respectively. The protection of geographical indications or designations • Opportunities United Kingdom has 27. Irish whiskey and Irish of origin is to encourage diversification in agricultural for Irish cream liqueur are protected under parallel rules for production, to protect names from misuse and producers the protection of wines and spirits. These imitation and to guarantee to the consumer that MAIN POINTS products are protected in the same products have certain traditional characteristics. This way as the most is achieved by means of a registration system that renowned gives exclusivity to the use of a name in relation to a product if that product meets certain specifications.

The big cheese Generic names cannot be protected. What is or what is not generic has proved problematic. To date, the most controversial registration has concerned a white cheese in brine known as Feta. Feta was registered as a ‘protected designation of origin’ (PDO) (see panel overleaf) in 1996, but Danish, French and German producers protested before the EC courts because one of the consequences of registration is that producers of similar products in the same member state must cease to use the name immediately. Producers in other member states must do so within five years. The court ruled that the criteria used by the commission in determining whether or not the name ‘Feta’ was generic were too limited.

15 Law Society Gazette March 2004 Cover story

The commission then sought the advice of a American brewer Anheuser-Busch and protected by scientific committee to determine how best to trademarks, and ‘Budejovicky Budvar’ beer evaluate whether or not a name is generic. The (translation: ‘Budweiser’), which is produced by a commission consequently enquired into the use of the Czech producer in the town of Budweis and protected word in Greece and in all member states, using under Czech law as a PDO. The US appears to be dictionaries and other written materials and, in trying to undermine the EU rules prior to Czech particular, public opinion. Nearly 13,000 citizens were accession and the consequent wider protection for the surveyed, and on the basis of this evidence it was Czech GI (see also C-216/01, Budéjovick´y Budvar, determined that ‘Feta’ was not generic. One-in-five národní podnik v Rudolf Ammersin GmbH, judgment of citizens of the EU had seen or heard the name Feta; 18 November 2003). in Greece and Denmark, the name was recognised by EC rules for the protection of geographical almost everyone. Feta was again registered in 2003, indications have given rise to some notable litigation and, once again, producers in Denmark, France and in the Luxembourg courts. We have already Germany are challenging this registration in the EC mentioned the Feta case, which is on-going because courts. of the new registration. Last year, the Court of The community rules for the protection of Justice, disagreeing with the opinion of the advocate geographical indications are well suited to traditional general and much to the annoyance of UK Irish food production as there is no limit to the supermarkets, held that the specifications for number of producers who can use a registered name protected GIs could require that grating of cheese or so long as there is compliance with the geographical slicing of ham must be carried out in the geographical or technical specifications of the product. Control on area of production (C- 469/00, Sociéte Ravil v Société compliance with the specifications is carried out Bellon Import und Société SPA Biraghi, judgment of 20 nationally or locally. In effect, the producers police May 2003, and C-108/01, Consorzio del Prosciutto di themselves within a national control Parma and Salumificio S Rita SpA v Asda Stores Limited framework. Once registered, there is and Hygrade Foods Limited, judgment of 20 May 2003). limited community funding for Products that can be registered under the EU rules promotion (although this is often eaten are limited to agriculture and foodstuffs. This is a key up by the more famous GIs). difference between the EU and WTO rules, which allow for the registration of industrial products such Two pints of lager as Persian carpets, Murano glass, Cesk´ ˘ ykri˘ st’ál˘ The EC rules on designation of origin (Bohemia crystal) or Thai silk. Protection in the EU have led to an international dispute is limited to the names of most foods. Natural gums between EC member states and and resins, mustard paste, hay, wool, osier and members of the World Trade essential oils can also be registered as PDOs or PGIs. Organisation, which is currently being tested within However, pre-cooked meals, prepared condiment the WTO dispute resolution framework. The sauces, soups and broths, ice cream and sorbets, background to the WTO action is the conflict chocolate (and other food preparations containing between ‘Bud’ and ‘Budweiser’ beer produced by the cocoa) may not be registered as PGIs or PDOs. GI BLUES There are two classes of geographical indications (GIs) under EC law: true origin of the product or as to its qualities, packaging, advertising •Protected designations of origin (PDOs), and or materials and documentation. •Protected geographical indications (PGIs). To register a name, a group of producers (or, in certain circumstances, an individual) must define the product according to The term PDO describes foodstuffs that are produced, processed and strict specifications and apply to the national competent authority. In prepared in a fixed geographical area using recognised skills and Ireland, this is the Department of Agriculture and Food. The techniques and where the quality is essentially or exclusively due to specifications must include a description of the product, its name, the the particular geographic environment, with its inherent natural or definition of the geographical area, the elements linking the human factors. PGIs, on the other hand, require that only part of the geographical area to the qualities of the product, and the control and production, processing or preparation takes place in the defined inspection procedures that are either in place or proposed. geographical area and raw materials, so long as they comply with Once satisfied that the criteria for registration are met, the national registered specifications, can come from areas other than the defined competent authorities pass the dossier on to the commission in geographical area. Brussels, which has a six-month period for review. If the commission Once registered, the protection for both PDOs and PGIs is the is satisfied that the name should be registered, it publishes the same. Any direct or indirect commercial use of the protected name is proposed name and specifications in the Official journal. If no prohibited, as well as any misuse, imitation or evocation of the name, objection is received within a further six months, the name is even if the true origin of the product is indicated. The law gives registered on the commission’s register of protected designations of exclusive right to the use of the name, including translations (as in origin and protected geographic indications. Additions to the register the case of the Italian cheese Parmigiano – in English, Parmesan) and are published in the Official journal, while the full list can be found on covers any other practice that is liable to mislead the public as to the the commission’s website at www.europa.eu.int.

16 Law Society Gazette March 2004 Cover story WICKLOW SHEEP AND DUBLIN BAY PRAWNS Could Wicklow sheep or Dublin Bay prawns qualify for which therefore resulted in a standard registration? The simple answer is yes. Take the example of the product, namely a lamb raised in a application by the Association de l’agneau de Pauillac to register sheepfold (or pen) and suckled by the Agneau de Pauillac as a PGI. Here are some of the things that they dam. Gourmets came to appreciate have to say about the specificity of their local lamb: their milk-gorged flesh. ‘Agneau de Pauillac is lamb aged no more than 75 days, unweaned, Pauillac lamb is a product with a with a carcass weight of between 11 and 15 kg, fat cover class 2, light- reputation of long standing, as coloured meat, firm white fat. The lamb is from the wine-growing and evidenced by various documents (menu of tree-growing areas of the department. the dinner arranged by President Loubet for The pastoral tradition in the department of Gironde has contributed the British King on 2 May 1903), Larousse over the years to the development of a special type of lamb, a product of Gastronomique of 1938 describing Agneau wintering constraints: at the same time as transhumance sheep moved de Pauillac as “the most perfect” suckling lamb. from the Pyrenees to overwinter in the Entre-Deux-Mers area, the This lamb, which is served at the tables of the most renowned people, shepherds from the Médoc marshes left the flooded wetlands every the product of a secular tradition perpetuated by the breeders’ know-how, autumn for the drained areas along the Gironde coast, which are now is nowadays recognised and appreciated as a type of lamb with a very occupied by vineyards. As the areas planted with vines were extended different taste and flavour from traditional heavy lamb and milk-fed and demand for manure increased, the herds from the Pyrenees and the lamb from dairy farms.’ Médoc marshes ‘colonised’ the wine-growing estates, where grazing The special characteristics of the Wicklow hills and the rights were granted in return for only a gift of one or two lambs and the farming methods used, or the specifics of Dublin Bay, would entire yield of manure: all these shepherds experienced the same appear to be even more distinct than those of Pauillac. Maybe the constraints resulting from grazing in cultivated areas of a particularly hardest part will be forming the association to make the fragile nature and subsequently adopted the same husbandry method, application!

EU quality policy not only includes the protection MacSharry’s time as EC agriculture commissioner. of geographical indications but also the protection of It is also clear that the pressure for better products that have a ‘traditional speciality guaranteed’ protection of GIs in the community came about as a (TSG). To date, only a limited number of products result of Cassis de Dijon (case 120/78, Rewe Zentrale v have been registered as TSGs, and none of these are Bundesmonopolverwaltung für Brantwein [1979] ECR from Ireland. 649, [1979] 3 CMLR 494). Prior to this ruling, there There are many similarities with the rules for the was only limited free movement of foodstuffs and protection of GIs. There is a register of names with national rules – including rules for the protection of product specifications. The specifications must set out GIs – predominated. Cassis undermined the the method of production, the nature and segmentation of the market and led to the characteristics of the raw materials and/or the development of community food law, including ingredients, the traditional composition or mode rules for the protection of traditional of production and a description of the main products. physical, chemical, microbiological or Protection of GIs is also a major organoleptic characteristics. Finally, element in the community’s control and inspections procedures negotiating strategy for the must be established. Products WTO’s Doha development registered as TSGs include Mozzarella agenda. The community is cheese from Italy, Jamon Serrano from prepared to decrease export Spain, traditional farm-fresh turkey from subsidies and allow greater EU the UK, breads from Spain and Finland, market access so long as the and speciality beers from Belgium and Finland. traditional names of EU food exports are properly protected by our trading partners. Hats off to CAP The US, Australia and the South Americans see this The promotion of quality for agricultural and food as an attempt to reconquer names such as Rioja or products is at the heart of the reform of the common Budweiser or Parma, which were brought to the New agricultural policy (CAP). The original CAP was World by European emigrants. A battle royal can be designed to promote production and was so successful expected. that the community moved from being a net food Darina Allen is right to promote Irish food. importer to a major food exporter. ‘Quantity, not Intellectual property in the form of GI law is available quality’ was the objective. Product specifications to protect the names and the quality of Irish food provided for in law were designed to ensure that products both at home and abroad. Irish lawyers need production purchased into intervention would be able to get cooking. G to be resold. The key switch came with the MacSharry reforms of the CAP. It is no coincidence Bernard O’Connor is managing partner of the Brussels- that the community GI and TSG rules date from based law firm O’Connor and Company.

17 Law Society Gazette March 2004 Legal research LET YOUR fing

Keeping up-to-date is a challenge for every busy practitioner. The Law Society library’s on-line catalogue can save you time and shoe leather by making sure that your legal research is quick and accurate. Here is a brief guide to getting the most out of this valuable resource

he library catalogue has been accessible to How do I find everything written by a particular • How to use members and students on the Law Society author? the on-line website since June 2003. The catalogue Type in the author’s surname and click on the AUTHOR catalogue contains over 15,000 entries for search button. If you know both surname and first • Questions Tlegislation (since 1997), Superior Court name, the order in which they are typed is immaterial. and answers reserved written judgments (since 1990), books, • Helpful journals, government reports and lectures, and it I need to find everything on ‘road traffic offences’. hints provides a useful resource for everyday legal Where do I start my search?

MAIN POINTS research. The following tips will help you to get the Type your search term in the window and click on maximum benefit from the catalogue. SEARCH EVERYTHING. You will find hits for all catalogue entries, which will include judgments, How do I find the catalogue? statutory instruments, books, lectures and so on. If Log on to the Law Society website at you want to be more specific, you can limit your www.lawsociety.ie – members’ or students’ area – with search by clicking on the LIMIT SEARCH button on your solicitor or student number and follow the links the top toolbar and scrolling down the list at the to the library catalogue. If you don’t know your bottom of the screen to select a particular item type, number, contact the library staff. such as SI or BOOK. HELPFUL HINTS FOR SEARCHING Each catalogue record is made up of various fields, depending on the 1990 in which this case was cited type of material. Books have author, title, subject, publication details • and = links search terms anywhere in a record and book number fields. Additionally, legislation and judgment records •$ = plurals or truncations. For example, sport$ will find sport, have fields specific to these types of material, for example, bill/act/SI sports, sporting number, date enacted, contents note, present position, •? = wildcards. For example, wom?n will find woman or women commencement date (in the case of legislation) and record number, • near = finds terms adjacent to each other but not in any order date judgment delivered, abstract, and cases cited (in the case of • adj = finds terms adjacent to each other in the order specified. judgments). To search for a word or phrase in fields other than author, title or DPP is used as an abbreviation for director of public prosecutions subject, type in your search term and click on SEARCH EVERYTHING, throughout the catalogue, but attorney general is not abbreviated. which searches across the full text of records. For example, judicial Dates in judgments follow the format d/mm/yyyy. If, for example, review + TITLE will find books, lectures and so on (judgments and you are looking for a judgment delivered on a particular date, type in legislation being unlikely to have this phrase in their titles), but the date (1/02/2003), click on SEARCH EVERYTHING, and limit the judicial review + SEARCH EVERYTHING will additionally find books search to judgments. where judicial review may be a subject, though not in the title, and All searches initially search all types of material on the catalogue. cases where the phrase ‘judicial review’ occurs in the abstract or in If you want to confine your search to a particular item type, for the subject. example, books, CPD lectures, statutory instruments or judgments, do • si 3/2000 + SEARCH EVERYTHING will find every record in which the initial search, then click on the LIMIT SEARCH button on the top there is a reference to SI no 3 of 2000 toolbar, scroll down the template at the bottom of the screen and • dir 98/5 + SEARCH EVERYING will find statutory instruments since select an ITEM TYPE, or a CATEGORY TYPE if you want to search in 1997 implementing this directive LEGISLATION, which will search bills, acts and statutory instruments, •american cyanamid (or american cy$ if you’re not sure of the or MONOGRAPHS, which will search all records other than legislation spelling) + SEARCH EVERYTHING will find Irish judgments since and judgments.

18 Law Society Gazette March 2004 Legal research ers DO THE WALKING How can I check what legislation was published last year? Bills, acts and statutory instruments are numbered with a unique call number, and a list can be generated by selecting the CALL NO BROWSE tab and searching the number as follows: • SI2003 (statutory instruments from no 1 of 2003 to date) • B2003 (bills) • ACT2003 (acts).

If you want to see the entry for a statutory instrument whose number you know but whose title you are unsure of, you can compile the call number and use the browse call number tab to find it. For example, SI2003087 finds the entry for SI no 87 of 2003.

I am looking for a judgment in a medical negligence case delivered by Judge Kinlen in the High Court. I think one of the parties was O’Connor. What’s the best way to find it? You can link terms together by using ‘and’ and this will find catalogue entries which contain all of the Can I use the catalogue to generally browse terms in your search. For example, on the QUICK current items of interest? SEARCH screen, type in: Go to the INFORMATION DESK button on the medical negligence and kinlen and o’connor. top toolbar to see lists of the last three months of Then click on the SEARCH EVERYTHING option. books, legislation and judgments received in the Alternatively, click on the COMPLEX SEARCH tab. library. You will then see options to link together search terms from different parts (fields) of records. Can I see what items I have on loan from the library? Does the catalogue contain the full text of Go to the USER SERVICES tab and log in with judgments? your user ID and PIN. PIN numbers are available Catalogue entries for judgments from 2000 onwards from the library staff. You can then view details of display a link to the full text of the judgment on the items you have on loan and when they are due back. BAILII (British and Irish Legal Information Institute) website. How do I print search results? Tick items of interest to you as you scroll through a I’m not sure what term would be used for a search and then click on the PRINT/CAPTURE subject I am interested in researching. Is there a button. This gives you options to e-mail or print, list I can view? with a choice of how you wish to sort your list – by Click on BROWSE and type in the subject term you author, title, year of publication and so on. G think might be used. A list will appear on screen which will direct you to the related terms. For If you need any assistance in searching the catalogue, example, ‘drunk driving’ will direct you to ‘drink contact the library on tel: 01 672 4843, fax: 01 672 driving offences’. 4845, e-mail: [email protected].

19 Law Society Gazette March 2004 Planning The best

The enforcement provisions of the Planning and Development Act, 2000 significantly strengthen the power of the planning authority to tackle unauthorised development, but there may be considerable confusion in practice. Stephen Dodd cuts through the red tape

nforcement in planning law concerns the • Planning and means of compelling wayward developers Development to adhere to their obligations to obtain or Act, 2000 comply with planning permission. The • Enforcement trigger for any enforcement action is of planning E where unauthorised development is taking place. regulations Development comprises both ‘works’ and ‘use’. • Relevant Development will be unauthorised unless permission case law was granted, the development is exempted

MAIN POINTS development, it concerns a pre-1 October 1964 use, or is an immaterial change (Westmeath County Council v Quirke, unreported, 23 May 1996, per Budd J). The Planning and Development Act, 2000 introduced several changes, set out in part VIII. There are now four main avenues under the planning code to tackle defaulters: •A warning letter under section 151 • An enforcement notice issued under section 153 or 155 •A planning injunction under section 160, and • Criminal sanctions. The issue of a warning letter is a new mechanism set out in section 152 and is quite distinct from the All four procedures are open to the planning warning notice under the previous 1963 act. Where a authority, while any member of the public can bring representation in writing is received from a member a planning injunction under section 160, which is of the public (which is not frivolous or without significantly widened in scope. Although the statute substance), or if it appears to the planning authority is silent, it appears that in each enforcement itself that an unauthorised development ‘may have proceeding the general onus of proof is on the been, is being or may be carried out’, the planning applicant. The period for taking any enforcement authority must issue a warning letter to the occupier, proceedings has been extended from five to seven owner, developer or any other person concerned years. In relation to any proceedings commenced by with the matter. The unauthorised development may a planning authority, a manager’s order is required be in the past, present or future. Where a under the Local Government Act, 2001. This should representation in writing is received, the warning ideally be exhibited in the pleadings under section letter must be issued as soon as may be and not later 160, though the court may allow the planning than six weeks after receipt of the representation. As authority to prove it in court (Kildare County Council regards the content of the warning letter, it is v Goode, unreported, 13 June 1997). mandatory that it:

20 Law Society Gazette March 2004 Planning laid plans

• Explains that any costs reasonably incurred by the planning authority in relation to enforcement proceedings may be recovered from a person on whom an enforcement notice is served or where court action is taken.

The issue of a warning letter amounts to a prima facie finding of unauthorised development by the planning authority. The letter invites submissions from the recipients before the planning authority makes any final determination (it thus differs from a warning notice under the 1963 act, where there was such a final determination). If the planning authority determines that an unauthorised development ‘may have been, is being or may be carried out’, it will issue an enforcement notice. Failure to comply with the warning letter will not by itself attract a sanction. However, while the warning letter is in the nature of a preliminary step before the issue of an enforcement notice, it has a distinct statutory character and is more than a mere formal letter warning of the institution of enforcement proceedings.

Enforcement procedure Section 153 of the 2000 act introduces a single integrated enforcement procedure (there were PIC: DENIS MINIHANE, IRISH EXAMINER separate enforcement provisions depending on the Even Michael Flatley’s • States that it has come to the attention of the feet of flames couldn’t type of unauthorised development under the 1963 authority that unauthorised development may have dance him out of trouble act). Following the issue of a warning letter, the been, is being or may be carried out with Cork County Council planning authority must make such investigations as • States that any person served with the letter may over refurbishment work it considers necessary to decide whether to issue an on his Castlehyde make submissions or observations in writing to the mansion enforcement notice. It must ensure that such a planning authority regarding the purported decision is taken ‘as expeditiously as possible’, and it offence not later than four weeks from the date of must be ‘the objective of the planning authority’ to the service of the warning letter ensure that the decision is taken within 12 weeks of • States that when a planning authority considers the issue of the warning letters. This curiously- that unauthorised development has been, is being worded last clause does not appear to amount to a or may be carried out, an enforcement notice may mandatory cut-off point of 12 weeks, but simply puts be issued an obligation on the authority to endeavour to • States that officials of the planning authority may achieve such a timeframe. at all reasonable times enter onto the land for the In determining whether to issue an enforcement purposes of inspection notice, the planning authority must consider any •Explains the possible penalties involved where submissions received. In the case of urgency, the there is an offence, and planning authority can issue an enforcement notice

21 Law Society Gazette March 2004 Planning

without a warning letter having been sent. In courts refused to grant orders where the development deciding whether such urgent action is required, the was already complete (see Loughnane v Hogan [1987] planning authority will consider the nature of the IR 322; Dublin Corporation v Bentham [1993] 2 IR 58). unauthorised development and any other material It appears that where the rateable valuation of the considerations (section 155). Section 153(5) also property is below £200/€254, proceedings should be states that failure to issue a warning letter shall not commenced in the Circuit Court. The 2000 act prejudice the issue of an enforcement notice or any states that the Circuit Court ‘shall have jurisdiction other proceedings that may be initiated by the to hear and determine an application’ where the planning authority. rateable valuation is below £200. This arguably It is not entirely clear whether this amounts to a means that it has exclusive jurisdiction and cannot be general power of the planning authority to issue an entered in the High Court, otherwise costs penalties enforcement notice, whether a warning letter has will be incurred. Under the 1976 act, there was been issued or otherwise. Under one construction, it simply an option to take such proceeding in the is simply to cater for a situation of urgency under Circuit or High Court. section 155. However, section 155 is arguably Despite these expansions in scope, section 160 is designed to deal with circumstances where a warning still a summary procedure. It is commenced by letter has been issued, though the full procedure in notice of motion and affidavit and it is not relation to a warning letter has not been completed. appropriate to resolve complex issues of facts, which But in my opinion, the better view is that, except in are more properly resolved under plenary summons urgency cases, there is no such residual power to (see Dublin County Council v Kirby [1985] ILRM 325, issue an enforcement notice without a warning letter where it was described as a ‘fire brigade section’, and having been issued, although this remains to be Waterford County Council v John A Woods [1999] 1 IR clarified. 556). The granting of a planning injunction is still a discretionary remedy, and so the case law under Watchdog role section 27 is equally applicable. The provisions in relation to planning injunctions The courts have said that where a case of are set out in sections 160 to 163 (formerly section unauthorised development has been made out, ‘it 27 of the 1976 act). The entitlement to take an would require exceptional circumstances (such as injunction is afforded to the planning authority and genuine mistake, acquiescence over a long period, members of the public, reflecting its community the triviality or mere technicality of the infraction, ‘watchdog role’ (see Morris v Garvey [1982] ILRM gross or disproportionate hardship or such like 177). There is no locus standi requirement. extenuating or excusing factors) before the court The 2000 act considerably expands the scope of should refrain from making whatever order the planning injunction: it can now be granted in (including an order for attachment for contempt in relation to unauthorised development which ‘has default of compliance) as is necessary to ensure that the been, is being or is likely to be carried out or development is carried out in conformity with the continued’ and so can cover quia timet relief not permission’ (Morris v Garvey [1982] ILRM 177, allowed under section 27 (Mahon v Butler [1997] 3 IR Henchy J). Among the matters to be considered in 369). Also, the power of the court to a make a the exercise of discretion are: mandatory order is now beyond doubt, with section •The purpose of the parties in carrying out the 160(2) providing that ‘the court may order the unauthorised development, such as for commercial carrying out of any works, including the restoration, benefit (Dublin Corporation v Maiden Poster Sites reconstruction, removal, demolition or alteration of [1983] ILRM 48; Dublin Corporation v O’Dwyer any structure or other feature’. This was subject to (Bros), unreported, 2 May 1997) some doubt under section 27. Under section 27, the • Public convenience, such as loss of employment to ENFORCEMENT NOTICES Where the planning authority decides to issue an enforcement notice, to its condition prior to the commencement of the development it must serve it as soon as possible. The notice will take effect from •Warn the persons served with the notice that, if within the period the date of service and will have effect for ten years from that date. specified or within such extended period, not being more than six Whether or not the planning authority decides to issue the notice, it months, the steps to be taken specified in the notice are not taken, must inform anyone who made submissions. The notice itself must: the planning authority may enter onto the land and take such steps, •(Where no permission has been granted) require the development to including the removal, demolition or alteration of any structure, and cease or not to begin, as appropriate, or (where permission has may recover any expenses reasonably incurred by them in doing that been granted) require the development to proceed in conformity with • Require the person or persons served with the notice to refund to the permission the planning authority the costs and expenses reasonably incurred • Require such steps as may be specified in the notice to be taken •Warn the persons served with the enforcement notice that, if within within a specified period, including, where appropriate, the removal, the period specified by the notice or such extended period, not demolition or alteration of any structure and the discontinuance of being more than six months, the steps specified in the notice to be any use and, in so far as is practicable, the restoration of the land taken are not taken, the persons may be guilty of an offence.

22 Law Society Gazette March 2004 Planning

the community (Stafford v Roadstone Ltd, unreported, 17 January 1980) • Even though an application is made within the statutory time period, delay may be a ground for refusing relief (Dublin Corporation v Mulligan, unreported, High Court, 6 May 1980), though it will depend on the particular facts of each case (Dublin Corporation v Kevans, unreported, High Court, 14 July 1980; Fingal County Council v HE Services, unreported, 25 January 2002) • The court may refuse an order where the violation is merely technical or minor (Avenue Properties v Farrell Homes [1982] ILRM 21; Marry v Connaughten, unreported, High Court, 25 January 1984; White v McInerney Construction Ltd, unreported, 29 November 1994) • Where an injunction would impose undue hardship on a respondent, this may be a factor against the granting of the injunction (Curley v Galway Corporation, 11 December 1998) • The reasonableness of the conduct of both parties PIC: PHOTOCALL IRELAND will be relevant to the exercise of discretion. A If correct planning party must come to court with ‘clean hands’ is on the defendant (section 162(1)), the planning procedures had been (O’Connor v Harrington Ltd, unreported, High authority need not prove that the subject matter is followed, the Court, 28 May 1987; Leech v Reilly, unreported, development and not exempted development Carrickmines Castle fiasco might have High Court, 26 April 1983; Dublin Corporation v (section 156(6)) nor that proceedings were been avoided McGowan [1993] 1 IR 405; Westport UDC v Golden commenced within the appropriate period (section [2002] 1 ILRM 439) 157(4)(c)). •A court may not grant the injunction where it is superfluous (Dublin Corporation v O’Dwyer (Bros); Where a person is convicted of an offence, the court Eircell v Bernstoff, unreported, 18 February 2000). should normally order him to pay the costs of the proceedings (section 161(1)). As the offences concern Criminal offences criminal liability, the offence must be proved beyond The 2000 act increases the number of criminal all reasonable doubt rather than on the balance of offences to 28, while the fines are also increased. probabilities. However, matters are made less Among the other changes are: difficult by the fact that there are a number of • The planning authority can now bring a presumptions which operate in favour of the prosecution even where the offence was outside its planning authority. functional area (section 157(1)) These presumptions may be rebutted and, where •It appears that the planning authority can only this is the case, the planning authority must prove institute proceedings in respect of summary the matters. The phrase ‘it shall be presumed until the offences. Under the previous legislation in respect contrary is proved’ in a criminal context normally of indictable offences, the planning authority places a burden on the accused to prove on the could prosecute such offences summarily up to the balance of probabilities. To raise a reasonable doubt stage at which the District Court declined or ‘sufficient evidence’ would appear to be jurisdiction (see TDI Metro Ltd v Delap (2) [2000] insufficient to amount to a rebuttal. Although the 4 IR 520) constitutionality of the presumption under section • While summary proceedings may be commenced 162(1) may be raised, it is unlikely to be successful, at any time within six months from the date on especially in the light of Hardy v Ireland ([1994] 2 IR which the offence was committed, which was the 550) and in particular O’Leary v Attorney General same under the 1976 act, proceedings may also be ([1995] 1 IR 254). commenced at any time within six months (rather The planning authority has significantly increased than three months under the 1976 act) from the powers to deal with unauthorised development, and date on which ‘evidence sufficient, in the opinion it has complete discretion to choose which of the person by whom the proceedings are mechanism to use. Furthermore, having taken initiated, to justify proceedings, comes to that enforcement proceedings under one mechanism, it is person’s knowledge, whichever is the later’ free to take action under any other mechanism. G (section 157(2)) • New presumptions operate in favour of the Stephen Dodd is a barrister and co-author, with Conleth planning authority involving prosecutions for Bradley, of a forthcoming book on the Planning and unauthorised development. In particular, the onus Development Act, 2000, to be published by Thomson of proving the existence of any permission granted Roundhall.

23 Law Society Gazette March 2004 Practice Treasures A wealth of historical documents, going back perhaps 300 years, may be waiting to be found in the old papers IN YOUR locked away in your firm’s attic. Carol Quinn explains why these ancient records could help us understand the hidden history of this country – and why they need to be preserved

olicitors’ papers often contain a wealth • Value of of unique information about the society solicitors’ and times they operated in. Very often archives the only documentary evidence of a • National Slong-gone landed estate is found in the Archives attics of family solicitors. Unfortunately, the value of Advisory these documents is often not recognised, and as a at Council project result of pressure on space they get consigned to the • Ownership waste bin or skip as out-of-date, irrelevant material. issues In the 18th and 19th centuries, solicitors often

MAIN POINTS acted as bankers and land agents for the local gentry. It was not uncommon for a solicitor to take over the administration of an estate, controlling income and expenditure and providing an annual report to the owner. Such situations arose when the owners of estates were abroad, were under 21, or simply wanted the burden of administration to lie elsewhere. All the records, leases, tenancy agreements and rental ledgers that made up typical estate records would be held not in the house but in the solicitor’s office. It is worth underlining the point that these documents do not just reflect the life of the land owners; preserved in such records may be the only written evidence of the existence of thousands of tenants and small farmers, whose poverty and illiteracy may have meant that their names would otherwise have gone largely unrecorded. In effect, and often unknowingly, through the preservation of these archives, solicitors became the guardians of a large part of our country’s social history. In the last 50 years, pressure on space and the amalgamation of practices have resulted in a large amount of what was seen only as outdated, useless documentation being thrown out or destroyed. In order to heighten awareness within the legal

24 Law Society Gazette March 2004 Practice

profession of the uniqueness and importance of these historical archives, the National Archives Advisory Council, under the chairmanship of Judge Bryan McMahon, commissioned a test survey of one Cork practice, Philip Wm Bass and Co, to uncover the type of record commonly found in solicitors’ archival collections and to assess the s historical importance and uniqueness of these records.

Cork case study Founded in 1828, the firm of Philip Wm Bass and Co is unique in Cork in that it has occupied the same building at 9 South Mall since the early 1840s. The oldest intact office in the city, this practice is distinguished by having recognised the worth of its records and – through the efforts of two of its members, Leachlain Ó Catháin and Jeremy B O’Connor – having preserved those records. But despite such diligence, even Philip Wm Bass and Co has suffered the loss of records so typical of other solicitors’ practices. The firm had an additional off-site records store in Cork city, which, 15 years ago or thereabouts, had to be evacuated. At that time, despite the best efforts of ttic the partners, records were destroyed simply because there was no repository to take them. This is not an untypical scenario. One of Judge McMahon’s aims in commissioning this survey was to highlight to the government the need to finance and support local authority repositories in order that solicitors might have a secure place of deposit for their records, thus freeing up vital office space. A brief survey of the attics of 9 South Mall was carried out on 21 May and 5 June 2003 to establish the type of record extant. It was common in the past for the younger son of minor gentry to become a solicitor and to cater to the legal needs of family friends and relations. This seems to have been partly the case with Philip Bass, who, as the son of a colonel in the North Cork Militia, was familiar with the land-owning class of Co Cork.

Raw material of social history One of the most important results of this survey was the discovery of the amount of material held that predated the foundation of the practice. Title deeds to properties have traditionally been held by solicitors for safekeeping and a significant amount of 17th century material was extant. The earliest deed located was dated 22 January 1673. The main categories of documents found are shown in the panel overleaf. The range and variety of the records surveyed

25 Law Society Gazette March 2004 Practice MAIN CATEGORIES OF DOCUMENTS

The records found fell mainly into the following • General account ledgers. These recorded categories. expenditure by client. For example, an entry for March 1815 says: ‘a/c with Mrs Rogers. By cash Estate administration expended in repairs of Kings St House which should The formal records relating to the legal, financial and have been given up to me in tenantable order general administration of Irish country estates: 38.0.0. By half a years’ rent lost in consequence of • Leases and assignments of leases from 1742 the above 39.16.3’ onwards • Account book, 1953. This recorded expenditure on • Correspondence files behalf of clients, such as postage stamps and so •Title records, including assignments of deed and on. mortgages • Rental ledgers Administration of wills, executors’ sales •Writs for summonses and evictions • Inventories of effects – for example, an inventory of • Bankruptcy records, and the ‘Household furniture & effects in the house of • Administration of estates after the owners had Robert Lane of the city of Cork Esq deceased at the moved to Britain. time of his Death’. This detailed the content of each room and in so doing provided an invaluable guide ‘Preserved in Personal finance/banking for the size and function of each room as well as its • Ledgers, 1752–1757. These recorded money furnishing. It also detailed the subsequent sale of such records received for short-term insurance polices and each item, the purchaser and the prices achieved th may be the monies paid out. For example, ‘Paid William •Wills and codicils – several bundles of 19 century admitting a loss adjured on the Charming probates of wills only written Nancy’ • Records generated during the day-to-day work of the evidence of the • Ledgers, 1840s. For example, recorded in the firm expenditure for the year 1841 were: ‘8 Sept Mr • General accounts of the firm's income and existence of Mullen Sugar and Tea 2.7.9; 15 Oct Labourer from expenditure, mainly 20th century. thousands of Carrigtohill 0.1.3’. Apr 1845: ‘Beef Steak 1/8 Grapes 1/0 Doctor Calanan £1.1.0; Ale for Others tenants and servants 0/6’ Transcripts of modern court cases. small farmers, whose poverty were mesmerising. Several MAs and research PhDs some cases, although an archivist has been and illiteracy could come out of this material alone. Again, it employed, the appropriate infrastructure has not should be stressed that nowhere else are these been put in place. may have records, or the information they contain, The survey also highlighted the issue of ownership meant that duplicated. They survive as the raw materials of our of certain archives. Legally, a solicitor’s office only social history in one place only. has ownership of, and copyright over, documents it their names There is little doubt that the type of archive has generated. It does not have such rights over items would found in the attics of Philip Wm Bass and Co is deposited for safekeeping or reference, even when the indicative of the records of many solicitors’ estates involved are defunct and no heir is apparent. otherwise have practices – vital historical documentation that is Work would need to be undertaken to provide an gone largely irreplaceable. acceptable standard form deposit agreement under which solicitors would feel enabled to transfer their unrecorded’ Holding on to history archives to a designated repository. But what now for the busy modern practice, where The National Archives Advisory Council will be rents are high and space is at a premium? This seeking to raise the issue of both the importance survey highlighted the need for the development of and the fragility of these solicitors’ collections, and a network of repositories where these collections we hope to work in partnership with both can be deposited. Ideally, the material should government and the legal community over the next remain in the county where it originated in order few years to ensure the permanent preservation of to maximise access for local historians and these collections. genealogists. Under the terms of the 1996 Local I would like to record my gratitude to Leachlain Government Act, each local authority is now Ó Catháin of Philip Wm Bass and Co for facilitating responsible for outfitting and professionally the initial survey and for his care in ensuring the staffing an archival repository to preserve its own preservation of the firm’s archive. G records. These centres should also have the capacity to take in important archives relating to Carol Quinn is an archivist at University College Cork’s the history of the area. To date, not every local Boole Library and a member of the National Archives authority has complied with the legislation, and in Advisory Council.

26 Law Society Gazette March 2004 Technology

IS YOUR FIRM WALKING THE The use of illegal software is an increasingly big PLANK? issue for Irish business, and that includes law firms. So how can you make sure that unlicensed software won’t shiver your timbers? Dualta Moore fires a broadside at the software pirates PIC: [email protected]

hen a business buys software, what software publisher can take legal action against the it is really doing is purchasing a business and its directors. • Copyright and licence to use it. Rather than Other types of piracy include end-user copying, Related Rights owning the software, it acquires hard-disk loading, counterfeiting and Act, 2000 limited rights to use, reproduce, mischannelling. The law also recognises the • Business W Software and distribute the program, according to the terms internet, and prohibits users from uploading, spelled out in the licence. downloading, or transmitting unauthorised copies Alliance Where the business does not comply with the of software on-line. An individual who breaks these • Benefits of terms of the licence – for example, by installing the laws, or a company that looks the other way when licensed same copy of a single-user program on several an employee does, is liable to civil and criminal software

computers – this is software piracy. As a result, the action. MAIN POINTS

27 Law Society Gazette March 2004 Technology

Companies caught using illegal software can incur penalties of up to €127,000 in fines, or five years in prison, or both for business directors. According to a recent piracy survey, Ireland is ranked fifth-worst out of 17 European states, with a piracy rate of 42%. The practice is said to be costing the software industry €40 million a year in this country alone, and nearly €2.7 billion across Europe. Another survey has indicated that a ten-point reduction in Ireland’s piracy rate would create an additional 2,400 jobs in the state, adding around €600 million to the economy.

Jolly Rogering The Business Software Alliance (BSA) is a non- profit piracy watchdog. Every month, the BSA issues High Court proceedings in Ireland against companies believed to have inadequate software licensing. In its latest move to fight software piracy, the BSA has initiated legal action against eight firms, all of which, it says, were using illegal software. A BSA spokesperson said that legal action was brought after it received information through its hotline about alleged piracy at the firms. Last year alone, the BSA received more than 112 leads on companies suspected of using software illegally. This number is expected to increase dramatically as a result of its recent national radio and press campaigns. The message is clear: businesses can no longer be complacent about non-compliance.

Pieces of Eight Apart from the risk of legal action, there are other potential costs incurred when using unlicensed Did a salty sea software: dog steal your The Copyright and Related Rights Act, 2000 came •Lack of technical support from the software software? into effect on 1 January 2002. The act: publishers, which can prevent vital work from • Makes the deliberate or negligent misuse of being completed software by a business a criminal offence • Inability to take advantage of product upgrades, • Extends that criminal offence to the officers of the which are usually much less expensive than buying business a new version of the software •Provides for the making of surprise searches or • Unauthorised software often contains viruses with ‘raids’ by software publishers against misusers of the potential to damage individual computers or software, and the entire network • In civil cases, provides for the making of • Potential incompatibility between software substantial damage awards against misusers of programs that would normally function together software. seamlessly. BENEFITS OF LICENSED SOFTWARE While unlicensed software has many associated risks and costs, the leading to communication problems benefits of licensed software are wide ranging. Good software asset • Justify investments in IT. Software asset management makes it management can help companies to: easier to understand the value received from software investment • Determine what software is needed and how to deploy this • Invest in the economy and encourage growth and development. software in the most efficient way possible Legal software ensures that everyone benefits from the increase in •Take advantage of volume license discounts local and national revenue and creation of more jobs. • Manage technological change, identify software needs and avoid obsolescence The software industry is one of the strongest segments of our • Increase work efficiency. Where technology has proliferated without economy. Protection of the industry's intellectual property will help it controls, many different software platforms and versions may exist, grow and prosper, and thereby contribute even more to the economy.

28 Law Society Gazette March 2004 Technology

Legal costs and fines, damaged reputation, computer Controlling IT costs requires managing both viruses, ineligibility for technical support and supply and demand. Managing the supply of IT software-compatibility issues all negatively affect a includes managing each unit cost, supplier firm’s efficiency and the efficiency of its employees. relationships, and tracking the IT inventory. Every All of these issues result in lost time. part of the company has a part to play in managing costs. Purchasing departments have to negotiate Who’s a pretty boy, then? favourable pricing and contract terms. Those in Because many enterprises have inadequate software charge of operations must ensure the smooth asset management programmes in place, they run a running of the day-to-day processes, while project significant risk of failing to comply with their managers and department heads must provide the software licenses. It would be sensible, therefore, overall vision, standards and integration of these for every business to assess its risk of non- processes. compliance and implement processes or tools to Law firms that have traditionally seen the useful ensure that it is able to withstand an external life of applications measured in decades must now software audit. adapt to continually-enhanced IT products in a Those involved in corporate finance and the much shorter time scale. Small and medium-sized buying and selling of businesses must also ensure firms should not simply adopt the same that the vendor’s software is fully compliant in order technologies, suppliers, products and services as to avoid the purchaser and its directors being liable those used by the large firms; otherwise, they run for unlicensed software in the merged entity. For the risk of paying up to twice as much for IT this reason alone, it is imperative that a software products. Instead, they should ensure that they are audit is undertaken as part of due diligence. dealing with IT suppliers who are focused on the Not only are companies protecting themselves needs of small to medium-sized enterprises. against non-compliance when they implement a Conducting regular software audits and software asset management programme, but small implementing sound software asset management and medium-sized enterprises can also significantly procedures eliminates exposure to the pitfalls of reduce their IT spend by successfully managing IT illegal software use, justifies investment in IT and costs. ultimately decreases overall costs. A recent survey of As with most other disciplines, areas that are 300 small businesses nationwide, conducted by the loosely monitored and controlled tend to have higher Small Firms Association, reported that 62% of costs than others that are effectively managed. With companies do not conduct software audits. the cost of software rapidly escalating compared to Given the costs involved in ignoring the problem, the cost of hardware, the biggest payback can be and the penalties being levied against those using derived from getting a handle on software licence software illegally, law firms that have not embraced inventories, installations, usage, maintenance and software asset management as a discipline need to their associated costs. In a recent study, the Gartner take steps to do so as a matter of urgency. G Group estimated that implementing a software asset management programme would save a business 17% Dualta Moore is a regional director for Software Asset a year on costs. Management Ireland.

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2 Arran Quay 7. Tel: 872 2833. Fax: 872 4486 Accurate shorthand recording of the Email: [email protected] High Court, Public and Private Inquiries, Web: doylecourtreporters.com AGM’s, Conferences etc.

29 Law Society Gazette March 2004 Financial services NOPAIN, The EU’s financial services action plan may have brought the idea of a single market that much closer, but it is also leading to a flood of new Irish legislation. David Dillon and Peter Stapleton discuss recent developments and look at the implications for the Irish financial services sector

he financial services action plan (FSAP) is The deadline for implementation of the one of the most ambitious projects remaining measures will occur during Ireland’s proposed by the European Commission presidency of the European Union. As such, it is an since the foundation of the single market. opportune time to examine the progress made to TLaunched in May 1999 and endorsed by the European heads of state and government at the Lisbon summit, it is part of an initiative aimed at making the European Union the most dynamic and competitive knowledge-based economy in the world by 2010. The creation of a European single market in financial services began in the 1970s. However, progress had been hampered by the diversity of member state laws and the difficulty in agreeing a common consensus on the way forward. As a result, European businesses and consumers were deprived of a real pan-European financial market. Further, this fragmentation was resulting in significant under- performance of European markets when compared with those in the United States. The FSAP was drawn up to tackle this problem. It is made up of a number of legislative and related measures with the aim of integrating European financial markets, enabling capital and financial services to flow freely throughout the EU, while at the same time providing proper prudential safeguards and investor protection. Key strategic objectives include: • The creation of a single wholesale market in financial services •Establishing an open and secure retail market for consumers, and • Financial •Increasing co-ordination between supervisory services authorities and implementing state-of-the-art action plan prudential rules. • Flood of legislation The initial scope of the action plan has also been over next two expanded since its launch to address broader issues years concerning the European financial market, including • Impact on the elimination of tax obstacles and the creation of Irish business an efficient and transparent legal system for

MAIN POINTS corporate governance.

30 Law Society Gazette March 2004 Financial services NOGAIN date and to assess the impact that the FSAP will have economy more competitive, efficient and innovative. on the Irish financial services industry in the coming There is also a huge economic prize, estimated at a months. direct gain of at least €130 billion for the financial services sector, not including the knock-on effect of Benefits for consumers and business cheaper capital for Europe’s businesses. Awareness of the potential benefits that a single In addition to the economic benefits, the FSAP financial market offers has meant that the FSAP has will create a flexible legislative framework capable of been accorded the highest political priority since its responding to changes in the modern financial launch in 1999. It is anticipated that implementation markets and will eliminate cross-border obstacles to of the action plan will increase confidence, generate the provision of financial services. more economic growth and jobs, and make the EU The measures adopted will benefit both European

Banking on success: the European Central Bank’s Frankfurt headquarters PIC: SIPA PRESS/REX FEATURES PIC: SIPA

31 Law Society Gazette March 2004 Financial services

businesses and consumers. For example, they will: FSAP, though not without its own delays and •Enable corporate issuers to raise finance on revisions, has delivered, with 36 of the original 42 competitive terms throughout the EU (Prospectus measures finalised in just over four years. directive (2003/71/EC) on the prospectus to be Wide agreement from other EU institutions, published when securities are offered to the public member states and financial services industry or admitted to trading) participants has enabled the commission to push •Allow the efficient and unhindered provision of through radical reform, which some had believed investment services cross-border (proposed update long dead and buried. The European company has of the Investment services directive) become a reality some 30 years after it was first •Create legal certainty for securities trades and proposed. (Companies that operate in more than settlement under the Financial collateral directive one member state have the option of being (2002/47/EC). established as a single company under EU law. A European company can operate throughout the EU From the consumer’s point of view, the FSAP with one set of rules and a single management and promotes the provision of information, transparency reporting system, rather than complying with all the and security for cross-border retail services, for different national laws of each member state where instance, the Distance selling of financial services they have subsidiaries.) Recently, the Product directive directive. Moves have also been adopted to expedite and the Management company directive finally effected consumer disputes through extra-judicial procedures the long-awaited update of the original UCITS such as FIN-NET. directive, which took over ten years of negotiation. These measures are just two examples of a glut of Driving the plan forward legislation that has been adopted, including the ‘A number of One of the most impressive characteristics of the Prospectus, Market abuse, Collateral and Taxation of FSAP FSAP has been the speed and efficiency with which savings income directives. a large volume of legislative measures has been This is an unprecedented success. However, in its initiatives agreed and implemented. In part, this can be ninth report on the FSAP in November 2003, the have recently attributed to the success of the Lamfalussy report (the commission concluded that, while the case for 2001 report of a committee on the regulation of completion remains as strong as ever, emphasis must been securities markets, chaired by Alexandre firmly remain on delivering and implementing all implemented Lamfalussy), which examined the regulation of the agreed measures by April 2004. (The term of the EU securities markets. The report proposed current European Parliament will end in April 2004, into Irish law regulatory reform based on a four-level approach and this has become the effective cut-off point for and this and the creation of two new securities committees to implementation of the remaining measures under assist the commission: the European Securities the FSAP.) In particular, the report noted a number trickle of Committee (ESC), made up of member state of outstanding issues and strongly urged the council legislation will representatives, and the Committee of European and parliament to progress the formal adoption of Securities Regulators (CESR), composed of national the revised Investment services directive, the become a supervisory authorities. Transparency directive, the Takeover bids directive and deluge in At the early stage of the Lamfalussy process, the the proposed Tenth company law directive on cross- principles and overall framework of directives or border mergers. 2004 and regulations are agreed. The details in relation to 2005’ technical measures, implementation and monitoring Impact in Ireland of compliance are dealt with at a later stage. Ireland has established itself as a vibrant and By agreeing the principles rather than details at competitive centre for international financial an earlier stage, many legislative proposals such as services since the establishment of the IFSC. A the Market abuse directive on insider dealing and potent mix of low corporation taxes, a skilled market manipulation and the Prospectus directive have workforce and strong government support resulted succeeded where previously they may have in a rapid growth in the financial sector. Dublin now foundered for lack of consensus on the specifics. plays host to half of the world’s top 50 banks and is This success has resulted in the commission calling one of the main European locations for insurance, for the extension of the Lamfalussy process to mutual funds and corporate treasury activities. banking, insurance, pensions and collective As a result, the impact of the FSAP is of critical investment scheme legislation (see commission press importance to the industry. A number of FSAP release IP/03/1507 of 6 November 2003). initiatives have recently been implemented into Irish law and this trickle of legislation will become a When the going gets tough deluge in 2004 and 2005. A brief overview of FSAP The diversity of laws and conflicting interests of measures adopted to date shows that there have been member states has long been the bane of EU some significant developments: policymakers. Lawyers will be familiar with a • The UCITS III regulations affect the mutual funds multitude of ‘ground-breaking’ proposals that have industry and substantially amend the previous emanated from Brussels with fanfare, only to become UCITS regime. They widen the scope of hopelessly bogged down during negotiations. But the permitted investments for such funds and

32 Law Society Gazette March 2004 Financial services

establish a ‘passport regime’ for their management proposed Takeover bids directive will create a companies, allowing them to provide services on a harmonised set of rules for takeovers and impose cross-border basis minimum requirements to be set by member states. • The European Communities (Taxation of Savings Another eagerly-awaited, if contentious, Income in the form of Interest Payments) Regulations development is the revised Investment services 2003 establish a new regime ensuring that savings directive, which aims to overhaul existing legislation income in the form of interest payments made in in response to significant structural changes in EU one member state to individuals resident in financial markets over the last decade. If adopted, another member state can be subject to effective the directive will increase harmonisation of national taxation in accordance with the national laws of rules, provide for the granting of an effective ‘single the latter member state passport’ to authorised investment firms and impose • The Financial Collateral Arrangements Regulations consistent investor protection measures. 2003 implement the Financial collateral directive It is too early to assess the precise impact of the (2002/47/EC). The purpose of these regulations is FSAP on the Irish market, but it is clear that the to protect the validity of cross-border financial removal of obstacles to cross-border financial collateral arrangements. They are aimed at services will open European financial markets to creating legal certainty for securities trades and Irish businesses and consumers. The anticipated settlement and follow up on measures introduced lower costs for finance and easier provision of by the European Communities (on Finality of services can only be seen as a positive development. Settlement in Payment and Securities Settlement However, the FSAP brings mixed blessings and Systems) Regulations 1998. not all future developments will be positive. Ireland’s position as a favoured financial centre will be tested. These new regulatory frameworks are already testing The levelling of the playing field may see some of the Irish financial services industry and the coming our competitive advantages being eroded and the months will see further change. The Market abuse harmonisation of the European financial markets directive (to be implemented by 12 October 2004) may be of greater benefit to the larger member will reinforce protection against insider dealing and states. For example, a key element of the FSAP has market manipulation, creating common rules for all been the strengthening of consumer protection EU financial markets. The Prospectus directive (to be standards and the prudential rules governing implemented by 1 July 2005) will radically alter the financial services providers. In many cases, this has way in which Irish companies raise finance by resulted in increased regulatory and compliance establishing a new regime for the publication of burdens. The cost of complying with these new rules prospectuses and creating an effective single passport may prove difficult for comparatively smaller Irish system for issuers of securities in the EU. companies. Recent corporate scandals have also prompted Irish financial market participants and their changes in accounting standards and corporate advisers would do well to take stock of the changes governance. Irish listed companies will have to resulting from the FSAP, as well as keeping an eye review and change their financial reporting standards on those on the horizon. The coming months will as required by the International accounting standards see an increasing number of EU legislative measures regulation (EC 1606/2002). Under the regulation, in banking, insurance, funds, investment services and listed companies must apply international reporting other financial sectors. Those best advised on future standards by 2005. Work on the transition process is opportunities and forewarned of the pitfalls of this already underway, and Irish companies should note legislative change will be best placed to prosper in an the recommended phased change to this regulation integrated European financial market. G proposed by the commission. In addition, several proposals are in the final David Dillon and Peter Stapleton are partner and stages of negotiation, and the commission hopes that solicitor respectively at the Dublin law firm Dillon they will be adopted by April 2004. For example, the Eustace.

33 Law Society Gazette March 2004

Books Book reviews Governance and policy in Ireland: essays in honour of Miriam Hederman O’Brien Donal de Buitleir and Frances Ruane (eds). Institute of Public Administration (2003), 57-61 Lansdowne Road, Dublin 4. ISBN: 1902-448-97-9. Price: €30.

y interest in governance Hederman O’Brien’s career. appropriate that this volume in In the course of a brief Mis primarily in the area of Although I know Miriam her honour has been review, it is impossible to corporate governance – and, as Hederman O’Brien socially, published. discuss any one of the 11 such, represents a micro- until this book I had not The editors have done an topics in this book. Suffice it perspective on governance. realised how considerable were elegant job of marrying to say that the variety of topics The essays in this book relate her contributions to Irish Miriam Hederman O’Brien’s covered is such that readers to broader macro aspects of public and commercial life. breadth of public service to will find much to interest governance, many to do with Much of her work has been for the topics covered in this them in this volume. G public policy aspects of the state, and my guess is that volume of essays. I summarise governance. As the editors much of it was on a pro bono in the panel below the Professor Niamh Brennan is explain in their introduction, basis. She has done our state chapters in the book and how academic director of the Institute the contents of this festschrift some considerable service. For each relates to her of Directors Centre for Corporate were determined by Miriam this reason, it is very contribution to Irish life. Governance at UCD.

CHAPTER TITLE (AUTHOR) MIRIAM HEDERMAN O’BRIEN CONNECTION 1 The governance of an enlarged Europe (Pat Cox Irish secretary, European Youth Campaign; PhD on European integration; her book, The MEP) road to Europe, published by the IPA, 1983; chairman, Irish Council for the European Movement; Killeen Fellowship to study education and training exchanges in Europe; member of Institute of European Affairs 2 The future of social partnership (Peter Cassells) Member of National Economic and Social Council 3 The Irish civil service in a changing world (Paul Sole external member of the civil service Top Level Appointments Committee; reviewer Haren) of public bodies such as Royal Irish Academy, Blood Transfusions Board 4 Citizenship and the Irish freedom of information Promoter of greater transparency in conduct of public business revolution (Dermot Keogh)

5 The media in Ireland: a distorted vehicle for Member and chairman of the Broadcasting Complaints Commission; member of the political communication (Peter Feeney) Advertising Standards Authority for Ireland 6 Judicial review (Sir Brian Kerr) Lawyer by profession; member of board of Irish Centre for European Law

7 Governance in the health services (Ruth Chairman of the Commission on Health Funding; chaired enquiry into Our Lady of Barrington) Lourdes Hospital, Drogheda; chaired expert group on hepatitis C Blood Transfusion Service Board issue; chaired Joint Standing Committee of the Dublin Maternity Hospitals 8 Irish universities: a look ahead (Thomas M Chancellor of University of Limerick; member of Development Committee, NUI Maynooth; Mitchell) led inquiry into Letterkenny Regional Technical College; honorary doctorates awarded by NUI Maynooth and University of Ulster 9 The social and political context of taxation: Chairman, Commission on Taxation; chairman, Foundation for Fiscal Studies economic policy in an embedded market (John Kay)

10 Homelessness and exclusion (Peter McVerry) Board member, AIB; chairman of board’s social affairs committee; chaired Forum on Youth Homelessness 11 Whither the Arts Council? (Patricia Quinn) Chairman, Irish Committee of the European Cultural Foundation; chairman of Music Network.

35 Law Society Gazette March 2004 Books

Civil procedure Adrian Zuckerman. LexisNexis UK (2003), Halsbury House, 35 Chancery Lane, London WC 2A 1EL, England. ISBN: 0-406-94898-4. Price: €172.50.

ivil procedure is of some The author states that the interim payment, security for Cimportance in our society. book has two objectives. First, it costs; legal professional Let the mind of the reader go aims to provide an accessible privilege; without prejudice back to primitive society, with account of the rules now set out communications; experts and the tribe resolving disputes by in the English Civil procedure assessors; and costs. the seniors sitting in a circle rules 1998 and of the way in Ireland’s civil procedure (court). Without a system of which the courts exercise their system shares so much in accepted procedure, all would powers under the rules. Second, common with that of England want to communicate (shout) at the book draws attention to and Wales; yet the law and the same time. Court possible difficulties in relation practice in that jurisdiction procedure, in the sense of to the law of court practice and have advanced considerably. proper, efficient and workable procedure and offers solutions. We have much to learn. practices enveloping the It is not the intention of the This is a book of meticulous mechanics of legal argument, is book to supplant the time- scholarship. A renowned legal associated with the very honoured manuals of civil scholar has tackled the many concept of civilised society. litigation such as the White book facets of civil procedure in The ideal is that law is fair, little emphasis has been placed or the Green book. what may be regarded as a efficient and affordable. Lord on efficiency and affordability. There are 1,114 pages in magnum opus. G Justice Brooke, in his foreword He quotes the unknown this book. There are 26 to the book, notes the emphasis litigant: ‘I, too, went to law. I chapters, with titles such as: Dr Eamonn Hall is company on fairness but states that too won. I, too, am bankrupt’. interim remedies – injunctions, solicitor of Eircom plc. Irish WHERE THERE’S A WILL THIS IS THE WAY… Stenographers Ltd

When a client makes a will in favour of the Society, it would be appreciated if the bequest were stated in the following words: Director: Sheila Kavanagh “I give, devise and bequeath the sum of X euros to the Irish Cancer Society Limited to be applied by it for any of its Experts in charitable objects, as it, at its absolute discretion, may decide.” Overnight Transcripts

All monies received by the Society are expended within the Specialists in Republic of Ireland. Court Reporting “Conquer Cancer Campaign” is a Registered Business Name Medical Cases / Arbitrations and is used by the Society for Conferences / Board Meetings some fund-raising purposes. The “Cancer Research Advancement Contact: Board” allocates all Research Hillcrest House, Grants on behalf of the Society. Dargle Valley, Bray, Co. Wicklow. Telephone/Fax: (01) 286 2184 or

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36 Law Society Gazette March 2004 Briefing Report of Law Society In briefing this Council meeting held on month... 16 January 2004 ■ Council report page 37 ■ Practice notes page 38 Motion: amendment to Council the claimant’s solicitor Co-option of Council member • New VAT clause in regulations 3) New pre-PIAB court proce- The Council noted that Patrick contract for sale, 2001 ‘That this Council revokes para- dures had been introduced that O’Connor had indicated his (revised) edition: graphs 16(c)(vi) and 16(d)(iv) of the would involve solicitors seek- intention to retire as an elected explanatory memoran- dum Council regulations 2003/2004 ing the protection of the court member of the Council, but to • Increase in fees payable passed at the meeting of the Council for clients before any case went exercise his privilege as a past under Criminal Justice of the Law Society held on 7 to the PIAB president to attend Council meet- (Legal Aid) Regulations November 2003’. 4) In political terms, there was ings for a period of three years. In • Delays in availability of Proposed: To m Murran recognition of the inherent consequence of his retirement, the transcripts: Court of Seconded: Michael Quinlan institutional unfairness of the president sought, and obtained, Criminal Appeal PIAB the Council’s approval to co-opt •CAT returns: electronic The Council noted that the effect 5) There was widespread recog- Edward Hughes for the balance of filing through Revenue of passing the motion would vest nition of the positive role the term of office for which Mr On-line Service the Council with the power to played by family solicitors and O’Connor had been elected. ■ publish reports of Disciplinary by the Law Society, as the rep- Legislation update page 39 Tribunal findings and High resentative body for the profes- Registrar’s Committee Court orders in the Gazette, sion. The Council noted that, in ■ Solicitors rather than retain the power with response to a request from the Disciplinary the society’s regulatory commit- The director general noted that, society for the nomination of a lay Tribunal page 41 tees, as at present. Following a while certain fundamental defects member to the Registrar’s lengthy discussion, the motion and imbalances in the PIAB had Committee, the director of con- ■ FirstLaw update page 43 was defeated by 28 votes against not been corrected, these would sumer affairs, Carmel Foley, had • Abuse of process and six votes in favour, with two quickly become apparent once indicated that she would like to • Company abstentions. the process was commenced. serve herself in that capacity. The • Constitutional Council approved Ms Foley’s • Contract Personal Injuries Commercial Court rules appointment to the committee. • Criminal • Discovery Assessment Board Patrick O’Connor briefed the •Tort Ward McEllin briefed the Council on the contents of the Criminal law Council on the contents of the finalised Commercial Court rules, James MacGuill reported to the ■ Eurlegal page 47 Personal Injuries Assessment Board which had been signed into law Council in relation to an item on • Competition Authority Act. He noted that, while the soci- during the previous week. Mr the RTÉ PrimeTime programme, issues new notice and ety had not succeeded in its O’Connor noted that the rules which related to a colleague, declaration for vertical efforts to secure changes to the had been dealt with by the Gráinne Malone, who had been restraints legislation to provide for legal Superior Courts Rules denigrated by the gardaí to her • Recent developments in representation, the society had Committee, in consultation with client and the matter had been European law gained huge credence with the the profession, which was a wel- recorded on videotape. The gar- body politic, which was evidenced come development. The soci- daí in question had been subjected throughout the Dáil and Seanad ety’s task force had included to disciplinary proceedings. How- Council to the Criminal Justice debates. Geraldine Clarke, Roddy ever, a finding of misconduct and Act, 1994 (Section 32) (Prescribed The director general identified Bourke and the director general, a penalty in respect of the matter Activities) Regulations 2004, the five objectives that had been and a significant amount of use- had subsequently been reversed which had been circulated. The achieved, in whole or in part, as a ful work had been done by the on appeal. The Criminal Law purpose of the regulations was to result of the society’s representa- society, which was very well Committee was of the view that set out those activities which tions on the bill, as follows: received by the Superior Courts the matter should be raised by the were subject to the provisions of 1) Time limits had been intro- Rules Committee and by Mr society at the highest level. The section 32 of the Criminal Justice duced in the bill Justice Peter Kelly, who was to president informed the Council Act, 1994. The regulations did 2) Legal representation would be preside over the new court. that he had written to the garda not effect any significant change facilitated, if not encouraged. Geraldine Clarke confirmed that commissioner requesting an early in the existing situation. As a result of the society’s a CPD course was scheduled for meeting to discuss the matter. However, it was noteworthy efforts, correspondence bet- early February in relation to the that, once again, the minister ween the PIAB and the new court, at which Mr Justice Money-laundering legislation had not taken on board the soci- claimant would be copied to Peter Kelly had agreed to speak. James MacGuill referred the ety’s views on the matter. G

37 Law Society Gazette March 2004 Briefing Practice notes NEW VAT CLAUSE IN CONTRACT FOR SALE, 2001 DELAYS IN (REVISED) EDITION: EXPLANATORY MEMORANDUM AVAILABILITY OF he new special condition 3 in its entirety, as will be the case in dition 3 has recently been cir- TRANSCRIPTS: Tthe standard contract for sale most residential sales. culated to every practitioner COURT OF has been introduced, first, to Practitioners are warned that, • The new special condition 3 CRIMINAL recognise any practice issues where a substantive VAT issue can also be downloaded from APPEAL arising from the introduction of arises, careful consideration the society’s website at the reverse charge provisions in should be given to the particular www.lawsociety.ie he Law Society’s Criminal certain surrenders and assign- circumstances of the case, and if • The new VAT clause will be TLaw Committee has ments of leaseholds and the ‘eco- practitioners are in any doubt incorporated into the contract received complaints about nomic value test’ introduced by about the application of the rele- document at the next available delays experienced by practi- the Value Added Tax Act, 1972 vant provisions of the VAT Act, print run and the revised con- tioners in obtaining tran- (as amended) and related VAT reg- they should proceed with great tract will thereafter be called scripts for appeals before the ulations (herein collectively called care and take specialist advice ‘2001 (revised) edition’ Court of Criminal Appeal. ‘the VAT Act’) and, second, to for- where appropriate. • Until then, it is suggested that The committee wishes to malise the procedures in relation It is recommended that the the three new pages be photo- establish the extent of the to sales where the ‘VAT form 4A’ VAT treatment of any transaction copied or downloaded from the problem, as it is intended to procedure is to be used. should be determined and agreed website and inserted in contract take up the matter with the For the majority of transac- pre-contract. documents in substitution for appropriate authorities. Practi- tions, clauses 3(a) and (b) are all the old pages three and four. tioners are invited to write to that may be required if special Notes: the committee with details of condition 3 is not being deleted in •A copy of the new special con- Conveyancing Committee the number of occasions on which they have experienced these delays and the average INCREASE IN FEES PAYABLE UNDER CRIMINAL JUSTICE period of delay involved. (LEGAL AID) REGULATIONS Criminal Law Committee ractitioners should note the applications: The actual fees payable from 1 Pintroduction of SI 713/ • 3% with effect from 1 January January 2004 are set out below. 2003, which provides for the fol- 2004 Details of the fees payable from CAT RETURNS: lowing increases in fees for • 2% with effect from 1 July July and December are available ELECTRONIC attendance in the District Court, 2004 on the Criminal Law Committee appeals to the Circuit Court, • 2% with effect from 1 Dec- pages of the website at www. FILING THROUGH prison visits and for certain bail ember 2004. lawsociety.ie. REVENUE ON-LINE SERVICE SOLICITORS’ FEES District Court and appeals to Circuit Court olicitors who wish to use Sthe Revenue On-line Subsequent Service to file CAT returns Defendant/appellant First day of hearing days of hearing should note that Revenue’s (1) (2) (3) current arrangements for Fee in respect of defendant/appellant where only €223.59 €134.14 €55.91 electronic payment conflict one defendant/appellant represented and in in relation to in relation to each with certain provisions of the respect of first defendant/appellant where first four cases subsequent case Solicitors’ accounts regula- solicitor assigned in respect of more than one tions 2001. defendant/appellant Until further notice, solici- tors may proceed with filing Fee in respect of second defendant/appellant €134.14 €80.11 €55.91 where solicitor assigned in respect of more than in relation to in relation to each the CAT return through ROS, one defendant/appellant first four cases subsequent case but must make alternative payment arrangements. Fee in respect of each defendant/appellant (other €89.46 €55.91 €55.91 This matter is the subject than the first and second defendants/appellants) in relation to in relation to each of on-going discussions where solicitor assigned in respect of more than first four cases subsequent case between the Law Society and two defendants/appellants the Revenue. A further prac- tice note will issue when the Bail applications: fee in respect of each contested bail application to Circuit Court or Special Criminal Court difficulties have been – 101.55 € resolved. Essential visits: fee in respect of each essential visit to prison – €107.87 Probate, Administration and Criminal Law Committee Taxation Committee

38 Law Society Gazette March 2004 Briefing

LEGISLATION UPDATE: ACTS PASSED IN 2003 Appropriation Act, 2003 Companies (Auditing and respect of manual data held in rel- ss124, 125, 129 and 130(b) (per Number: 42/2003 Accounting) Act, 2003 evant filing systems on the pass- SI 512/2003); 31/10/2003 and Date enacted: 19/12/2003 Number: 44/2003 ing of this act insofar as the act: 1/11/2003 for different provi- Commencement date: 19/12/ Date enacted: 23/12/2003 (a) amends s2 of the Data sions of s142(1) (per SI 2003 Commencement date: Com- Protection Act, 1988 and applies 514/2003); 1/11/2003 for paras mencement order/s to be made it to manual data; (b) inserts ss2A (a) and (d) of s145(1) insofar as it Arts Act, 2003 (per s2 of the act) and 2B into the Data Protection relates to s57 (other than sub-sec- Number: 24/2003 Act, 1988 (per s23(4) of the act tions 2 to 5) of the Capital Date enacted: 8/7/2003 Containment of Nuclear and subject to s23(5) of the act) Acquisitions Tax Consolidation Commencement date: Com- Weapons Act, 2003 Act, 2003, 1/1/2005 for paras mencement order/s to be made Number: 35/2003 Digital Hub Development Agency (b) and (c) of s145(1), (per s1(2) of the act): 14/8/2003 Date enacted: 17/11/2003 Act, 2003 31/10/2003 for s145(1)(d) inso- for all sections of the act (other Commencement date: 3/12/ Number: 23/2003 far as it relates to sub-sections (2) than s26(3)) (per SI 364/2003) 2003 for all sections of the act Date enacted: 8/7/2003 to (5) of s57 of the Capital (per SI 657/2003) Commencement date: 8/7/ Acquisitions Tax Consolidation Broadcasting (Funding) Act, 2003 2003. 21/7/2003 appointed as Act, 2003 (per SI 515/2003) Number: 43/2003 Courts and Court Officers the establishment day for the pur- Date enacted: 23/12/2003 (Amendment) Act, 2003 poses of the act (per SI Fisheries (Amendment) Act, Commencement date: 23/12/ Number: 36/2003 303/2003) 2003 2003 Date enacted: 17/11/2003 Number: 21/2003 Commencement date: 17/11/ Employment Permits Act, 2003 Date enacted: 1/7/2003 Broadcasting (Major Events 2003 Number: 7/2003 Commencement date: 1/7/2003 Television Coverage) Date enacted: 10/4/2003 (Amendment) Act, 2003 Criminal Justice (Illicit Traffic by Commencement date: 10/4/ Freedom of Information Number: 13/2003 Sea) Act, 2003 2003 (Amendment) Act, 2003 Date enacted: 22/4/2003 Number: 18/2003 Number: 9/2003 Commencement date: 22/4/ Date enacted: 23/6/2003 European Arrest Warrant Act, Date enacted: 11/4/2003 2003 Commencement date: Com- 2003 Commencement date: 11/4/ mencement order/s to be made Number: 45/2003 2003 Capital Acquisitions Tax (per s29(2) of the act) Date enacted: 28/12/2003 Consolidation Act, 2003 Commencement date: 1/1/2004 Garda Síochána (Police Number: 1/2003 Criminal Justice (Public Order) (per s1(2) of the act) Co-operation) Act, 2003 Date enacted: 21/2/2003 Act, 2003 Number: 19/2003 Commencement date: 21/2/ Number: 16/2003 European Communities Date enacted: 24/6/2003 2003 Date enacted: 28/5/2003 (Amendment) Act, 2003 Commencement date: Com- Commencement date: 28/6/ Number: 38/2003 mencement order to be made (per Central Bank and Financial 2003 (per s1(7) of the act) Date enacted: 3/12/2003 s9(5) of the act) Services Authority of Ireland Act, Commencement date: Com- 2003 Criminal Justice (Temporary mencement order to be made (per Health Insurance (Amendment) Number: 12/2003 Release of Prisoners) Act, 2003 s2(3) of the act) Act, 2003 Date enacted: 22/4/2003 Number: 34/2003 Number: 11/2003 Commencement date: Com- Date enacted: 29/10/2003 European Convention on Human Date enacted: 16/4/2003 mencement order/s to be made Commencement date: Com- Rights Act, 2003 Commencement date: 16/4/ (per s 1(2) of the act): 1/5/2003 mencement order to be made (per Number: 20/2003 2003 for the following provisions: ss1 to s2(2) of the act) Date enacted: 30/6/2003 11 and s12 (except insofar as it Commencement date: 31/12/ Houses of the Oireachtas relates to s15(4) of the Central Data Protection (Amendment) 2003 (per SI 483/2003) Commission Act, 2003 Bank Act, 1942), s13, s14 Act, 2003 Number: 28/2003 (except insofar as it relates to Number: 6/2003 Finance Act, 2003 Date enacted: 14/7/2003 s19(2) to (5) of the Central Bank Date enacted: 10/4/2003 Number: 3/2003 Commencement date: 1/1/2004 Act, 1942), ss15 to 24, 26, 27, Commencement date: Com- Date enacted: 28/3/2003 for all sections except s4(8) (per 29 to 32, s34 (except para (a)), mencement order/s to be made Commencement date: Various – ss1(2) and 3(1) of the act). ss35 and 36, sched 1 (except (per s23(3) of the act and subject see act, and: 1/5/2003 for s104 Section 4(8) shall not come into insofar as it relates to item 4 of to ss23(4) and 23(5) of the act); (per SI 172/2003); 1/5/2003 for operation until a resolution of Dáil part 6, and item 2 of part 9 as 1/7/2003 for all sections of the s111 (per SI 173/2003); and/or Seanad Éireann is passed respects s15(5), (6) and (8) of the act, other than: (a) s5(d) insofar 1/6/2003 for ss107, 108, 109, specifying the commencement Central Bank Act, 1989), sched 2 as it inserts sub-section (13) of s4 110 (per SI 244/2003); date for s4(8) (per s3(2) of the and sched 3 (per SI 160/2003); of the Data Protection Act, 1988, 1/7/2003 for s101 (per SI act) 4/6/2003 for s14 (insofar as it (b) s16, and (c) s22 insofar as it 247/2003); 1/10/2003 for s146 relates to s19(2) to (5) of the repeals the third schedule to the (per SI 466/2003); various com- Immigration Act, 2003 Central Bank Act, 1942) (per SI Data Protection Act, 1988 (per SI mencement dates for s17 (per SI Number: 26/2003 218/2003) 207/2003); 24/10/2007 in 508/2003); 1/11/2003 for Date enacted: 14/7/2003

39 Law Society Gazette March 2004 Briefing

Commencement date: 11/8/ Minister for Community, Rural Date enacted: 3/7/2003 Road Traffic Act, 2003 2003 for s8 (per SI 363/2003); and Gaeltacht Affairs (Powers Commencement date: 31/7/ Number: 37/2003 15/9/2003 for s7 (per SI and Functions) Act, 2003 2003 for all sections of the act, Date enacted: 27/11/2003 415/2003); 19/9/2003 for all Number: 39/2003 other than s12 (per SI Commencement date: 1/12/ other sections of the act (per SI Date enacted: 16/12/2003 350/2003); 11/11/2003 for s12 2003 (per SI 647/2003) 414/2003) Commencement date: 16/12/ (per SI 538/2003) 2003 Social Welfare Act, 2003 Independent Monitoring Personal Injuries Assessment Number: 41/2003 Commission Act, 2003 Motor Vehicle (Duties and Board Act, 2003 Date enacted: 19/12/2003 Number: 40/2003 Licences) Act, 2003 Number: 46/2003 Commencement date: Various – Date enacted: 19/12/2003 Number: 5/2003 Date enacted: 28/12/2003 see act Commencement date: 7/1/2004 Date enacted: 10/4/2003 Commencement date: Com- (per SI 5/2004) Commencement date: 10/4/ mencement order/s to be made Social Welfare (Miscellaneous 2003 for all sections except s8 for (per s2 of the act) Provisions) Act, 2003 Industrial Development (Science which a commencement order is Number: 4/2003 Foundation Ireland) Act, 2003 required (per s8(2) of the act); Protection of Employees (Fixed- Date enacted: 28/3/2003 Number: 30/2003 21/10/2003 for s8 (per SI Term Work) Act, 2003 Commencement date: Various – Date enacted: 14/7/2003 485/2003) Number: 29/2003 see act, and: 3/4/2003 for s24 Commencement date: Com- Date enacted: 14/7/2003 (per SI 129/2003); 27/5/2003 mencement order/s to be made National Tourism Development Commencement date: 14/7/ for ss13 and 15 (per SI (per s1(4) of the act): 25/7/2003 Authority Act, 2003 2003 210/2003); 2/9/2003 for s23 for all sections, other than ss19, Number: 10/2003 (per SI 399/2003); 8/9/2003 for 20 and 21 (per SI 325/2003). Date enacted: 13/4/2003 Protection of the Environment s11 (per SI 472/2003); 25/7/2003 appointed as the Commencement date: 13/4/ Act, 2003 1/1/2004 for ss16, 17, 18, 20 establishment day for the purpos- 2003. 28/5/2003 appointed as Number: 27/2003 and 21 (per SI 661/2003) es of the act (per SI 326/2003) the establishment day for the pur- Date enacted: 14/7/2003 poses of the act) (per SI Commencement date: Com- Taxi Regulation Act, 2003 Intoxicating Liquor Act, 2003 204/2003); 28/5/2003 appoint- mencement order/s to be made Number: 25/2003 Number: 31/2003 ed as the day on which the (per s2 of the act): 8/9/2003 for Date enacted: 8/7/2003 Date enacted: 14/7/2003 repeals effected by s5 of the act ss1(1), 1(3), 2, 4, 20(1)(c), 26(1), Commencement date: 8/7/2003 Commencement date: 18/8/ and specified in schedule 1, 26(2)(a), 26(2)(b), 26(2)(c), 27, for parts 1 and 5; commencement 2003 for all sections of the act, columns (2) and (3), come into 30, 32 and 52 (per SI 393/2003); order/s to be made for part 3 except the following sections operation (per SI 205/2003) 17/9/2003 for s17 (per SI (ss33 to 52 inclusive) (small which came into operation on 413/2003); 1/10/2003 for public-service vehicle regulation) 29/9/2003: ss10, 14, 15, Official Languages Act, 2003 ss1(4), 56, 57, 58 and 59 (inso- (per s33 of the act). 16(b)(ii), 19, 23 (insofar as it Number: 32/2003 far as it relates to the Litter Establishment day order for the relates to s19 of the act and Date enacted: 14/7/2003 Pollution Act, 1997) (per SI Commission for Taxi Regulation to s34A of the Intoxicating Commencement date: Com- 413/2003); 22/10/2003 for (part 2 of the act) to be made (per Liquor Act, 1988), and 25 (insofar mencement order/s to be made ss1(2), 10, 11, 12, 13, 14, s5 of the act); 4/11/2003 for the as it inserts s15(3) of the Equal bringing the act into operation 20(1)(a), 22, 23, 24, 25, 29, 34, appointed day for the purposes of Status Act, 2000) (per SI not later than three years after 46, 47, 48, 49 and 50 (per SI part 4 of the act (establishment of 362/2003) the passing of the act (per s1(2) 498/2003) the advisory council to the of the act): 30/10/2003 for ss2, Commission for Taxi Regulation) Licensing of Indoor Events Act, 3, 4 and part 5 (per SI Redundancy Payments Act, 2003 (per SI 517/2003) 2003 518/2003); 19/1/2004 for ss5, Number: 14/2003 Number: 15/2003 6, part 3 (except ss9(3) and 10), Date enacted: 15/5/2003 Unclaimed Life Assurance Date enacted: 26/5/2003 36 and the first and second Commencement date: Com- Policies Act, 2003 Commencement date: Com- schedule to the act, 1/5/2004 mencement order/s to be made Number: 2/2003 mencement order/s to be made for s10 in the case of specified (per s17(2) of the act): Date enacted: 22/2/2003 (per s1(3) of the act): 14/7/2003 documents that relate to the year 25/5/2003 for ss1 to 6, 8, 10, Commencement date: 10/3/ for part 3 (ss24 to 34 inclusive) of 2003 or any subsequent year 13 to 17 (per SI 194/2003). 2003 (per SI 92/2003) the act (per SI 291/2003) (per SI 32/2004) SI 194/2003 also provides, for the avoidance of doubt, that (a) PRIVATE ACT Local Government Act, 2003 Oil Pollution of the Sea (Civil s10 of the act applies only Number: 8/2003 Liability and Compensation) to those employees who are The Royal College of Surgeons in Date enacted: 10/4/2003 (Amendment) Act, 2003 declared redundant on or after Ireland (Charters Amendment) Commencement date: 10/4/ Number: 33/2003 25/5/2003; and (b) s15 of Act, 2003 2003 Date enacted: 29/10/2003 the act applies only to those Number: P1/2003 Commencement date: 1/11/ circumstances where the rele- Date enacted: 14/7/2003 Local Government (No 2) Act, 2003 (per s5(3) of the act) vant date defined by s6(9) of the Commencement date: 14/8/ 2003 Protection of Employees 2003 (per s36 of the act) G Number: 17/2003 Opticians (Amendment) Act, (Employers’ Insolvency) Act, Date enacted: 2/6/2003 2003 1984 occurs on or after Prepared by the Law Commencement date: 2/6/2003 Number: 22/2003 25/5/2003 Society Library

40 Law Society Gazette March 2004 Briefing SOLICITORS DISCIPLINARY TRIBUNAL These reports of the outcome of Solicitors Disciplinary Tribunal inquiries are published by the Law Society of Ireland as provided for in section 23 (as amended by section 17 of the Solicitors (Amendment) Act, 2002) of the Solicitors (Amendment) Act, 1994

In the matter of John A his practice as a solicitor in that a timely manner, having only that the respondent solicitor was O’Connell, solicitor, who car- he had: applied for same on 11 March admitted and enrolled in ries on practice in the firm of a) Failed to apply for a practising 2003 Northern Ireland in 1976 and in Nuala G Liston & Co at 8 Day certificate for the year 2003 in b) Practised as a solicitor with- this jurisdiction on 30 Place, Tralee, Co Kerry, and a timely manner, having only out a practising certificate for November 1981 and now carries in the matter of the Solicitors applied for same on 11 March the period 1 January 2003 to on practice as a solicitor and Acts, 1954 to 2002 2003 11 March 2003 in breach of partner under the style and title [6467/DT383] b) Practised as a solicitor with- the provisions of the Solicitors of Dermot Walker & Company Law Society of Ireland out a practising certificate for Acts, 1954 to 2002. Solicitors, 6 Queen Street, (applicant) the period 1 January 2003 to Derry BT48 7FF, Northern John A O’Connell 11 March 2003 in breach of The tribunal ordered that the Ireland. (respondent solicitor) the provisions of the Solicitors respondent solicitor: On 4 September 2003, the tri- Acts, 1954 to 2002. i) Do stand admonished as to bunal found that the respondent On 25 November 2003, the his future conduct and as to solicitor was guilty of miscon- Solicitors Disciplinary Tribunal The tribunal ordered that the his past conduct on this occa- duct in his practice as a solicitor found that the respondent solic- respondent solicitor: sion and be advised that as a in that he had: itor was guilty of misconduct in i) Do stand admonished young solicitor, who qualified a) Breached section 68(1) of the his practice as a solicitor in that ii) Pay a sum of €500 to the in 1997, he must be fully con- Solicitors (Amendment) Act, he had: compensation fund in relation scious in the future of his own 1994 by failing to provide his a) Failed to apply for a practising to the finding set out at (a) obligation to ensure that his (named) client with the par- certificate for the year 2003 in above practising certificate applica- ticulars in writing prescribed a timely manner, having only iii) Pay a sum of €500 to the tion is filed on time by the section applied for same on 10 March compensation fund in relation ii) Pay a sum of €250 to the b) Breached section 68(2) of the 2003 to the finding set out at (b) compensation fund in relation Solicitors (Amendment) Act, b) Practised as a solicitor with- above to the finding set out at (a) 1994 by charging a solicitor- out a practising certificate for iv)Pay the whole of the costs of above and-client fee over and above the period 1 January 2003 to the Law Society of Ireland as iii)Pay a sum of €250 to the com- what was received on a party- 10 March 2003 in breach of taxed by the taxing master of pensation fund in relation to and-party basis calculated as a the provisions of the Solicitors the High Court in default of the finding set out at (b) above percentage of the settlement Acts, 1954 to 2002. agreement. iv)Pay the whole of the costs of amount plus VAT the Law Society of Ireland as c) Breached section 68(3) of the The tribunal ordered that the In the matter of William taxed by the taxing master of Solicitors (Amendment) Act, respondent solicitor do stand Christopher Ross, solicitor, the High Court in default of 1994 by deducting or appro- censured. practising in the firm of agreement. priating monies for fees from Michael Dowling & Co, damages payable to his client In the matter of Michael A Church Street, Tralee, Co In the matter of George C d) Breached section 68(5) of the Dowling, solicitor, carrying on Kerry, and in the matter of the Copeland, solicitor, practising Solicitors (Amendment) Act, practice under the style and Solicitors Acts, 1954 to 2002 under the style and title of 1994 by deducting or appro- title of Michael A Dowling & [7927/DT390] Copeland McCaffrey Solicitors priating monies for fees from Co at Church Street, Tralee, Law Society of Ireland at PO box 9, 29 Patrick Street, the damages payable to his Co Kerry, and in the matter of (applicant) Strabane, Co Tyrone BT82 client, notwithstanding that the Solicitors Acts, 1954 to William Christopher Ross 8DQ, Northern Ireland, and in there was no agreement in 2002 [3995/DT392] (respondent solicitor) the matter of the Solicitors Acts, writing and in the form pre- Law Society of Ireland 1954 to 2002 [4279/DT361] scribed by section 68(5) of the (applicant) On 18 November 2003, the Law Society of Ireland Solicitors (Amendment) Act, Michael A Dowling Solicitors Disciplinary Tribunal (applicant) 1994 (respondent solicitor) found that the respondent solic- George C Copeland e) Breached section 68(6) of the itor was guilty of misconduct in (respondent solicitor) Solicitors (Amendment) Act, On 18 November 2003, the his practice as a solicitor in that 1994 by failing to furnish to Solicitors Disciplinary Tribunal he had: The Solicitors Disciplinary his client a bill of costs and as found that the respondent solic- a) Failed to apply for a practising Tribunal noted in its report to soon as practicable after the itor was guilty of misconduct in certificate for the year 2003 in the president of the High Court settlement of his case and in

41 Law Society Gazette March 2004 Briefing

the form prescribed by the solicitor was guilty of miscon- b) Failed to attend a meeting of New Cabra Road, Phibsbor- provisions of section 68(6) duct in her practice as a solicitor the Registrar’s Committee ough, Dublin 7, and in the f) Breached section 68(8) of the in that she: when requested to do so matter of the Solicitors Acts, Solicitors (Amendment) Act, a) Failed to reply to multiple cor- c) Through her conduct 1954 to 2002 [3572/DT393] 1994 by failing to take all respondence from the society obstructed and frustrated the Law Society of Ireland appropriate steps to resolve arising from a complaint society in carrying out its (applicant) the dispute between him and b) Failed to attend a meeting of statutory duty to investigate James M Sweeney his client about the amount of the Registrar’s Committee complaints (respondent solicitor) legal costs charged by failing when requested to do so d) Through her conduct showed to inform his client in writing c) Through her conduct a flagrant disregard for the On 4 November 2003, the Solic- of his right of taxation and obstructed and frustrated the society’s position as the statu- itors Disciplinary Tribunal found to make a complaint to the society in carrying out its tory regulatory authority of that the respondent solicitor was society under section 9 of the statutory duty to investigate the solicitors’ profession guilty of misconduct in his prac- Solicitors (Amendment) Act, complaints e) Failed to comply with a notice tice as a solicitor in that he: 1994 about alleged excessive d) Through her conduct showed served on her pursuant to sec- a) Failed to reply to correspon- charging a flagrant disregard for the tion 10 of the Solicitors dence from the society g) Breached section 66(17) of the society’s position as the statu- (Amendment) Act, 1994 within b) Failed to attend a meeting of Solicitors Act, 1954 as amended tory regulatory authority of the time prescribed by the act the Registrar’s Committee by substitution by section 76 the solicitors’ profession f) Failed to comply with the when requested to do so aris- of the Solicitors (Amendment) e) Through her failure to carry direction of the Registrar’s ing out of his failure to reply Act, 1994 by lodging or caus- out her client’s instructions Committee that she refund to the society’s correspon- ing to be lodged for collection seriously prejudiced her to an estate her professional dence an unendorsed cheque or client’s interests. fee c) Was in serious delay in admin- other negotiable or non-nego- g) Failed to reply to telephone istering the estates of a family tiable instrument drawn in The tribunal ordered that the calls and correspondence from d) Failed to answer multiple cor- favour of his client respondent solicitor: the complainant seeking infor- respondence from the solici- h) Breached regulation 7(a)(iv) of a) Do stand censured mation about his registration tors for the complainant. the Solicitors’ accounts regula- b) Pay a sum of €2,500 to the of lands inherited by him tions no 2 of 1984 by drawing compensation fund under the will of a relative. The tribunal ordered that the money for costs from his c) Pay a sum of €3,000 as resti- respondent solicitor: client’s account without hav- tution to the complainant The tribunal ordered that the i) Do stand censured in respect ing delivered to the client a without prejudice to any legal respondent solicitor: of the findings set out at (a) bill of costs or other written right of the complainant a) Do stand censured and (b) above intimation of the amount of d) Pay the whole of the costs of b) Pay a sum of €2,500 to the ii) Pay a sum of €1,000 to the the costs incurred. the Law Society of Ireland or compensation fund compensation fund in relation any person appearing before c) Pay the whole of the costs of to the finding set out at (c) The tribunal ordered that the them as taxed by the taxing the Law Society of Ireland and above respondent solicitor: master of the High Court in of any person appearing iii)Pay a sum of €1,000 to the a) Do stand censured default of agreement. before them as taxed by a tax- compensation fund in relation b) Pay the sum of €5,000 to the ing master of the High Court to the finding set out at (d) compensation fund In the matter of Lorna J in default of agreement. above c) Pay the whole of the costs of Burke, solicitor, carrying on iv)Pay the whole of the costs of the Law Society as taxed by practice under the style and In the matter of James M the Law Society of Ireland as the taxing master of the High title of Burke & Company, Sweeney, solicitor, carrying on taxed by the taxing master of Court in default of agreement. Prospect House, Prospect practice under the style and the High Court in default of Hill, Galway, and in the matter title of James M Sweeney at 14 agreement. G In the matter of Lorna J of the Solicitors Acts, 1954 to Burke, solicitor, carrying on 2002 [3166/DT259] practice under the style and Law Society of Ireland title of Burke & Company, (applicant) SOLICITORS’ Prospect House, Prospect Lorna J Burke Hill, Galway, and in the matter (respondent solicitor) of the Solicitors Acts, 1954 to HELPLINE 2002 [3166/DT263] On 20 November 2003, the Law Society of Ireland Solicitors Disciplinary Tribunal The Solicitors’ Helpline is available to assist every member of the (applicant) found that the respondent solici- profession with any problem, whether personal or professional Lorna J Burke tor was guilty of misconduct in (respondent solicitor) her practice as a solicitor in that she: 01 284 8484 On 20 November 2003, the a) Failed to reply to multiple cor- THE SERVICE IS COMPLETELY CONFIDENTIAL AND TOTALLY Solicitors Disciplinary Tribunal respondence from the society INDEPENDENT OF THE LAW SOCIETY found that the respondent arising from a complaint

42 Law Society Gazette March 2004 Briefing Update

News from Ireland’s on-line legal awareness service Compiled by Karen Holmes for FirstLaw

ABUSE OF PROCESS subject of litigation of the first should not be appointed or act grant the relief sought against proceedings. The second pro- in anyway either directly or him Disciplinary procedures, ceedings ran foul of the public indirectly as directors or secre- 2) The first issue for considera- medical law policy that litigation should not taries or be concerned or take tion was whether or not James Practice and procedure – abuse of drag on forever and that a defen- part in the promotion or forma- V Mealey could be considered process – judicial review – medical dant should not be oppressed tion of any company, subject to a director to whom section disciplinary procedures – successive Ahmed v The Medical Council, the provisions of sub-section 150 of the 1990 act could judicial review proceedings in same Supreme Court, 19/12/2003 3(3) of section 150 of the apply. He was not a duly- matter – whether defendant [FL8471] Companies Act, 1963. The appli- appointed director and there- oppressed by successive suits where cant divided the grounds justi- fore must be held to have one would do fying this application into those been a shadow director or a de The applicant was acquitted of COMPANY which related to the affairs of facto director charges of sexual assault. He the company prior to the wind- 3) A person not validly appoint- subsequently became the subject Liquidation, shadow directors ing-up order and those which ed a director of a company of a disciplinary inquiry by the Directorship – de facto director – related to matters arising subse- may nonetheless be said to be Medical Council. He applied for shadow director – whether a person quent to that time. These a de facto director and thus judicial review to prevent the not validly appointed a director of a grounds effectively stated that deemed to be a director with- holding or continuance of the company may be held to be a de the company continued to trade in the meaning of section inquiry. He brought two sets of facto director or a shadow director when unable to pay its debts 2(1) of the Companies Act, proceedings. The first set of and thus amenable to section 150 of and failed to file any returns or 1993 and thus amenable to proceedings related to the the Companies Act, 1990 – keep any proper books of the restriction contained in alleged double jeopardy and whether a person’s complete neglect accounts or other records. The section 150 of the Companies breach of natural justice in the of his responsibilities as a manag- applicant also alleged that Act, 1990 in the following form of multiple proceedings in ing director could be evidence of James A Mealey signed two circumstances: a) where there the same matter. The second irresponsibility, justifying the statements of affairs that were is clear evidence that that (present) proceedings con- restrictions under section 150 of not in the prescribed form and person has been either the cerned the alleged breach of 1990 act – Companies Acts, were both different to each sole person directing the natural justice by reason of the 1963 to 1990 other and disclosed different affairs of the company, or b) council’s failure to provide legal Two of the three respondents, liabilities. is directing the affairs of the aid for the applicant. The Thomas Mealey and James A In relation to James V company with others equally respondent contended that the Mealey, were properly appoint- Mealey, the applicant took issue lacking in valid appointment, applicant had been guilty of ed as directors of Lynrowan with the fact that he had made or c) where there were other delay which put him outside the Enterprises Limited in accor- irresponsible drawings, namely validly-appointed directors time limits. dance with the provisions of the that £2,000 had been paid from and he was acting on an equal The respondent further con- Companies Acts, 1963. The third the company funds to auction- or more influential footing tended that the applicant had respondent, James V Mealey, eers as a deposit for a house with the true directors in failed to explain why the relief was not a de jure director of the purchased by James V Mealey directing the affairs of the sought in the second proceed- company and was sued on the and that this was done at a time company. In the absence of ings had not been sought in the basis that he was either a shad- when the company was in a per- clear evidence of the forego- first proceedings. ow director pursuant to section ilous financial state. ing, and when there was evi- The Supreme Court (Keane 27(1) of the Companies Act, 1990 O’Neill J allowed the applica- dence that the role of the CJ, Denham, Murray, or a de facto director coming tion, holding that: person in question was expli- McGuinness and Hardiman JJ) within the meaning of ‘director’ 1) Although Thomas Mealey cable by the exercise of a role dismissed the appeal and as contained in section 2(1) of was a de jure director of the other than director, the per- affirmed the order of the High the Companies Act, 1963. A company, he had taken no son in question should not be Court, holding that no reason winding-up order relating to part whatsoever in its affairs made amenable to the section had been advanced for the fail- this company had issued on 30 and did not appear to have 150 restriction. Where the ure of the applicant to raise the November 1998. The liquida- been expected to do so. In object of the section was the grounds relating to legal aid or tor of this company made an those circumstances, in the protection of the public from funded representation in the application pursuant to section absence of any evidence of dishonest or irresponsible first proceedings. The issues in 150 of the 1990 act seeking specific irresponsible or dis- persons, the absence of a relation to legal aid were issues orders against the three respon- honest behaviour on his part, valid appointment should not that properly belonged to the dents to the effect that they it would be inappropriate to permit an escape from the

43 Law Society Gazette March 2004 Briefing

restrictions in section 150. In small family business, and following this, on 16 August dent only deport an Irish citi- the light of all the foregoing, having arrived at the age of 2001, the applicants’ received a zen member of a family for the Companies Acts, 1963 to retirement, he had effectively letter indicating the respon- grave and substantial reasons 1990 recognised and permitted his son to take over dent’s intention to make a were not principles which embraced in the provisions of control of the business. deportation order. Notwith- applied to the respondent’s section 2(1) of the 1963 act Accordingly, he did not act standing representations made duties when considering fami- and section 150 of the 1990 irresponsibly in relation to the by the applicants’ solicitors on ly and domestic circumstances act the concept of the de facto affairs of the company their behalf, deportation orders as identified in section 3(6)(c) director 9) The evidence did not disclose were made in respect of the of the 1999 act 4) A shadow director was some- any dishonesty on the part of applicants and they were noti- 2) The applicants had failed to one, not a validly appointed James V Mealey fied of this decision by letter of demonstrate good and suffi- director, on whose instruc- 10) James V Mealey acted irre- 24 January 2003. The applicants cient reasons for departing tions and directions the true sponsibly in relation to the alleged that the respondent from the decision of Smyth J directors of the company act. £2,000 cheque drawn on the failed to have regard to the fam- in Olenczuk v Minister for The invariable characteristic company account to pay for ily circumstances of each of Justice, Equality and Law of a shadow director was that the deposit on his house and them, relying on section 3(6)(c) Reform his role was hidden behind also by putting forward a of the Immigration Act, 1999 in 3) The European convention on that of the validly appointed claim for £10,450 in the sec- this regard. Specifically, the human rights was not part of or indeed de facto directors, ond statement of affairs with- applicants alleged that they were the domestic law of this state through whom, in a concealed out explanation, justification part of a close-knit family unit and, accordingly, the fact that way, the shadow director or even identification, and and, accordingly, argued that the word ‘family’ had been directed the affairs of the accordingly a declaration pro- this close-knit unit would be held to include grandparents company vided for in section 150 of the sundered if the deportation in the jurisprudence of the 5) On the facts of the case, James Companies Act, 1990 should be order was put into effect. The European Court of Human V Mealey did not direct the made against him. applicants also alleged that there Rights did not comprise a affairs of the company by In re Lynrowan Enterprises was good reason not to follow good and substantial reason instructions or directions to Ltd, High Court, Judge the decision of the High Court for departing from the deci- the other director. His role O’Neill, 31/7/2002 [FL8565] in Olenczuk v Minister for Justice, sion of Smyth J in Olenczuk was not hidden or concealed Equality and Law Reform (unre- 4) The fact that the word ‘fami- in any way and, accordingly, ported, 25 January 2002), which ly’ was not defined in the 1999 he was not a shadow director CONSTITUTIONAL decided that the family com- act did not mean that it should 6) Based on the fact that James prised of the mother and father be extended to include grand- V Mealey had virtual com- Deportation, family law with or without children, that is, parents as distinct from par- plete control over the affairs Judicial review – immigration – the family as recognised under ents and children. of the company, carried out refugee status – deportation – fam- article 41 of the constitution. Caldaras v Minister for Justice, all bank transactions for the ily – Immigration Act, 1999 – Furthermore, the applicants Equality and Law Reform, High company, and was the only proportionality – constitution – sub- argued that the principle enun- Court, Mr Justice O’Sullivan, authorised signatory for the stantial grounds – whether the con- ciated by the decisions of the 9/12/2003 [FL8563] purposes of the bank account, cept of family as recognised in arti- Supreme Court in Lobe v he was on the balance of cle 41 of the constitution includes Minister for Justice, Equality and probabilities a de facto direc- grandparents Law Reform and Osayande v CONTRACT tor of the company The applicants, Romanian citi- Minister for Justice, Equality and 7) The involvement of James A zens, were husband and wife Law Reform that, although there Conveyancing, land law Mealey in the affairs of the who came to Ireland on 22 was no absolute right of an Irish Land law – property – conveyancing company was one of virtual January 2000 with their son and citizen who was a child not to be – vendor and purchaser – contract – total non-involvement in the daughter-in-law. They applied deported from this state, this condition precedent – planning per- year-and-a-half or so prior to for refugee status and were could only be done for grave and mission – practice and procedure – April 1998. There was no dis- refused by letter dated 19 June substantial reasons or for a rea- time limits – failure to obtain plan- honesty on his part in rela- 2000. A grandson was born to son that was proportionate to ning permission – service of comple- tion to the affairs of the com- the applicants’ son and his part- these important rights, should tion notice – whether vendor enti- pany ner on 24 June 2000. The appli- be extended to include grand- tled to rescind contract 8) James A Mealey’s failures both cants’ son and partner were parents. The plaintiff had entered into a in regard to the management granted permission to remain in O’Sullivan J refused the relief contract of sale with the defen- of the company up to the time the state and they had a second sought, holding that: dant regarding the sale of lands. of the winding-up and in rela- child on 4 February 2002. The 1) The cases of Lobe and As part of the contract, it was tion to the preparation of the applicants’ daughter was also Osayande did not warrant stipulated that the purchaser was two statements of affairs living in the state with her part- extending the concept of the to obtain planning permission thereafter was attributed to ner and two daughters, who family as recognised by article for the lands within a certain him having effectively passed were not Irish citizens. The 41 of the constitution to time limit. In addition, a deposit all control of the affairs of the applicants’ solicitors wrote to include grandparents. The of £45,000 was paid. Difficulties company to his son, James V the repatriation unit of the test of proportionality or the arose with regard to the obtain- Mealey. In the context of a respondent’s department and requirement that the respon- ing of planning permission and

44 Law Society Gazette March 2004 Briefing the vendor returned the deposit issued by the resident magistrate offence was or was not a rev- 5) The facts underlying the and attempted to treat the con- and justice of the peace for enue offence was a matter of offence specified in warrant B tract as at an end. The purchaser, Northern Ireland. Warrant A Irish law. In this regard, the were facts which were reason- however, called on the vendor to related to an offence contrary to provisions of the 1965 act ably capable of corresponding complete the sale. A number of section 19(2) of Theft Act material to this case had to be in Irish law to an indictable issues arose for the court, princi- (Northern Ireland) 1969. construed in a strict or literal offence or to an offence which pally if the vendor was correct in Warrant B recited an offence manner. In so doing, words was punishable on summary treating the contract as having contrary to section 17(1)(b) of must be given their ordinary conviction for a maximum been rescinded. Theft Act (Northern Ireland) Act and natural meaning, no gloss period of at least six months. Carroll J held that the condi- 1969. By order dated 16 may be placed on such words, This was so, despite the fact tion to obtain planning permis- November 1999, the District and any reasonable doubt or that a more appropriate corre- sion was a condition subsequent Court ordered that the appli- ambiguity must be resolved in sponding offence than the one and not a condition precedent. It cant, pursuant to section 47(1) favour of the applicant. designated by the district was not disputed that the grant of the Extradition Act, 1965, as Furthermore, the court was judge existed. of planning permission was for substituted by section 12 of the entitled to look at the true Newell v O’Toole, High Court, the benefit of the purchaser and Extradition (Amendment) Act, nature of the offence and to Mr Justice McKechnie, 22/3/ could have been waived by him. 1994, be delivered into the cus- scrutinise the substance of the 2002 [FL8583] Time was not made of the tody of a member of the Royal claim made. Byrne v Conroy essence in the contract and, in Ulster Constabulary for con- ([1998] 3 IR 1) followed Judicial review order to have brought finality to veyance to the authorities in 2) A lay person would describe Certiorari – preliminary examina- the contract, the vendor should Northern Ireland. The court the offence with which the tion – discretion to receive addition- have served a completion notice indicated that, in relation to applicant was charged as the al evidence – Criminal Procedure under the general conditions of warrant A, the corresponding theft of money. The Northern Act, 1967 sale. If the time fixed by the offence in this state was obtain- Ireland authorities had not The applicant sought by way of notice then elapsed, the vendor ing by false pretences contrary accused him of any offence judicial review an order of cer- could treat the contract as at an to section 32(1) of the Larceny under the revenue legislation tiorari quashing his return for end. Act 1916; as regards warrant B, and if he was charged with one trial and other reliefs aimed at The plaintiff vendor had the corresponding offence was of the offences specified in the preventing his trial. The appli- therefore invalidly rescinded the uttering a forged document con- warrants he would not be fac- cant’s case almost wholly turned contract of sale. trary to section 6 of the Forgery ing any revenue offence on an analysis of the now-abol- O’Connor v Coady, High Act 1913. On the same day, the known to Northern Ireland. ished preliminary examination Court, Ms Justice Carroll, applicant issued a special sum- The applicant quite simply procedure as set out in the 12/11/2003 [FL8589] mons wherein he sought his had found the property of Criminal Procedure Act, 1967 and release pursuant to the provi- another and had attempted, in particular the discretion to sions of section 50 of the 1965 successfully, by using what he allow additional evidence to be CRIMINAL act. found, to obtain for himself a served. The applicant relied on two monetary gain The Supreme Court (Murray, Arrest, extradition arguments in this regard. First, 3) Despite the fact that there was McGuinness and Hardiman JJ) Extradition – arrest warrant – he contended that either the a connection between the rev- allowed the appeal and substi- obtaining by false pretences – utter- offence specified in warrant A or enue authority/exchequer and tuted for the order of the High ing a forged document – Theft Act in warrant B was an offence in the applicant, the charges Court an order of certiorari, set- (Northern Ireland) 1969 – connection with taxes, duties or brought against him did not ting aside the order of the Extradition Act, 1965 – exchange control, that is to say, a constitute revenue offences District Court returning the Extradition (Amendment) Act, revenue offence. Second, in rela- 4) In considering the issue of applicant for trial and remitting 1994 – whether the offences which tion to warrant B, he asserted corresponding offences, the the charge to the District Court correspond with the offences in this that the indictable offence spec- basic enquiry was to discover judge to proceed with it in state of obtaining by false pretences ified in the District Court order whether the several ingredi- accordance with law, holding and uttering a forged document are was not in fact a corresponding ents which constituted the that the district judge exceeded revenue offences offence in this jurisdiction to offence specified in the war- his statutory authority in receiv- The applicant found a tax disc that alleged in warrant B. He rant, or one of more of such ing the additional evidence. lying on the street in Monaghan claimed that the offences were ingredients, constituted an Hughes v Judge Garavan, in November 1995. This disc revenue offences because there offence under the law of the Supreme Court, 18/12/2003 was valid until September 1996 was a loss to the exchequer in state and, if they did, whether [FL8507] and he brought it to the Vehicle the sum of £2,325. that offence (the correspon- Licensing Office in Coleraine, McKechnie J refused the dence) was an indictable where he filled in a form seeking applicant’s release under section offence or, if not, whether it DISCOVERY a rebate of monies due on early 50 of the 1965 act, holding that: was punishable on summary surrender. In January 1996, the 1) The applicant bore the onus conviction by imprisonment Banking, employment applicant received a cheque for of proving that the offence in for a maximum period of at Discovery – banking law – employ- £2,325, which he duly cashed. respect of which his extradi- least six months. The State ment contract – whether documents The applicant was subsequently tion was sought was a revenue (Furlong) v Kelly and Anor relating to similar fact evidence arrested on foot of two warrants offence. Whether such an ([1971] IR 132) followed should be discovered – whether doc-

45 Law Society Gazette March 2004 Briefing uments containing the confidential ments relating to the employ- type of material sought by the plaintiff’s intimate knowl- business of a third party should be ment history of two other plaintiff, discovery would, no edge of the defendants’ bank- discovered named former high-level execu- doubt, not be ordered. ing business, he should be The plaintiff was at all material tives with the defendants. The However, the question of able to make his case without times the general manager or plaintiff alleged that these two admissibility of the docu- the additional discovery managing director of the first former executives made similar ments sought in categories sought in categories four and three defendants. The defen- complaints to those made by one and two seemed to five. dants were part of a German the plaintiff and were conse- involve the exercise of judicial Von Gordon v Helaba Dublin banking group, consisting of quently dismissed. The plaintiff discretion in balancing com- Landes Bank Hessen, Supreme either Irish subsidiaries of the sought to establish that there peting considerations of rele- Court, 17/12/2003 [FL8407] German parent or the Irish was a pattern of premature ter- vance, probative value and branch of a German banking mination of senior personnel oppression and, accordingly, subsidiary of the same parent. who raised complaints similar was a matter for the trial TORT The defendants all carried on to those made by him. judge. Discovery should not banking business, under licence, The defendants argued that be refused in circumstances Damages, appeal at the International Financial this was an attempt to obtain where it would prejudice this Negligence – appeal – liability – Services Centre in Dublin. The discovery of evidence of similar issue damages – apportionment of fault – plaintiff effectively claimed that facts and, accordingly, discovery 3) The issue of the sufficiency of whether plaintiff established that the defendants operated the should be refused. Both parties the pleadings was a matter for defendant bore responsibility for Irish banking business by put- cited authorities in support of the trial judge to decide accident ting lending business artificially their respective arguments in 4) Discovery of documents of a The High Court found the and irregularly through the this regard. particular lending transaction plaintiff 50% responsible and Irish branch or subsidiaries, in The third category of docu- concerned the confidential the defendant 50% responsible order to benefit from lower ments related to details of a par- business of a third party. for a road traffic accident and Irish corporation taxation. He ticular loan. The plaintiff When considering whether further found that the value of claimed that when he reported argued that discovery of docu- to order discovery of such the plaintiff’s claim, assuming his concerns regarding these ments relating to this particular documents, the court had to full liability, was £710,145. The irregularities to higher manage- transaction were necessary to balance the interests of per- defendant appealed. ment, he was ignored. The prove in effect that the defen- sons not party to the litiga- The Supreme Court (Keane plaintiff alleged that the defen- dants’ banking operations in tion. Cooper-Flynn v RTÉ CJ, Hardiman and Fennelly JJ) dants in fact demanded that he Ireland were used fictitiously to ([2000] 3 IR 343) followed allowed the defendant’s appeal withdraw the complaints under conduct German lending busi- 5) The plaintiff’s argument that and substituted for the order of pain of disciplinary proceed- ness. The fourth category of lending to German nationals the High Court an order dis- ings, potentially leading to his documents referred to docu- by the Irish branches or sub- missing the plaintiff’s claim, dismissal. ments showing support for the sidiaries needed to comply holding that the plaintiff had He maintained that his pay defendants’ assertion that the with German law, which the failed to establish that the defen- and other benefits were stopped loss and injury allegedly sus- defendants denied, was a dant bore any responsibility for and, as a result, he suffered per- tained by the plaintiff was a legal issue and accordingly it the accident. sonal injury consisting of result of his own fault in con- was not necessary for the Per curiam: the judgment of the headaches, depression and psy- tract or was contributed to by judge to have access to indi- High Court should be in the chiatric illness. his negligence and breach of vidual loans to decide that form suggested in the judgment The plaintiff had obtained contract. The fifth category issue of McCarthy J in Hay v O’Grady interlocutory relief, requiring contained documents showing 6) Pleading contributory negli- ([1992] 1 IR 210), where the defendants to continue to the plaintiff’s allegations were gence did not amount to the McCarthy J emphasised ‘the pay his salary and other bene- false and scandalous and that he raising of a new allegation of importance of a clear statement fits. Mr Justice Kelly in the was guilty of unconscionable fault on the part of the plain- … by the trial judge of his find- High Court adopted case-man- conduct as pleaded in the tiff and it did not suggest that ings of primary fact, the infer- agement measures, which defence. the defendants had any rele- ences to be drawn and the con- included setting dates for dis- The Supreme Court vant documentation in their clusion that follows’. covery applications and the (McGuinness, Hardiman, possession Lennon v Reilly, Supreme completion of discovery. The Fennelly JJ) refused the appeal 7) Discovery should not be Court, 25/11/2003 [FL8490] G present appeal arose from limit- in respect of the discovery ordered merely in respect of ed aspects of the subsequent sought in categories one and a denial in a defence to a The information contained here decision of Mr Justice Smyth in two and allowed the appeal in claim. The use of the words is taken from FirstLaw’s Legal the High Court ordering dis- respect of categories three, four ‘wholly false and malicious’, Current Awareness Service, covery of a large number of cat- and five, holding that: ‘scandalous’ and ‘uncon- published every day on the internet egories of documents. Specifi- 1) It was not necessary in a dis- scionable’ in the present case at www.firstlaw.ie. For more cally, this appeal related to five covery application to adjudi- did not amount to substan- information, contact bartdaly@ categories of documents. The cate on the admissibility of tive pleas, but constituted firstlaw.ie or FirstLaw, Merchants first two categories of docu- proposed evidence emphatic denials, which were Court, Merchants Quay, Dublin 8, ments ordered to be discovered 2) If there was a clear rule justified by the nature of the tel: 01 679 0370, fax: 01 679 by Smyth J contained docu- excluding from evidence the allegations. By virtue of the 0057.

46 Law Society Gazette March 2004 Briefing Eurlegal News from the EU and International Affairs Committee Edited by TP Kennedy, director of education, Law Society of Ireland

Competition Authority issues new notice and declaration for vertical restraints

n 5 December 2003, the decision or concerted practice be non-exclusive. Significantly, The declaration OCompetition Authority that infringes this prohibition is the notice also deals with ‘gen- The declaration applies to ‘ver- published its Notice in respect of void and unenforceable. A uine agency agreements’. The tical agreements’, which are vertical agreements and concerted breach of section 4(1) of the 2002 Competition Authority held in defined as agreements or con- practices and its Declaration in act renders the parties and their a number of decisions taken certed practices entered into respect of vertical agreements and directors and senior managers under the Competition Acts, 1991 between two or more undertak- concerted practices. The notice liable for fines and/or imprison- and 1996 that certain provisions ings that operate, for the pur- and declaration are designed to ment, and exposes them to an in an agency agreement may, in pose of the agreement, at a dif- bring Irish competition law on action by third parties who may limited circumstances, amount ferent level of the production vertical restraints into line with seek various remedies, including to a breach of the equivalent or distribution chain, and relate EU competition law. The notice damages. Furthermore, the provisions of section 4(1) of the to the conditions under which and declaration are modelled on Competition Authority may 2002 act. The old notice and the parties may purchase, sell commission regulation EC no investigate a breach of the com- the category licence did not or resell certain goods or serv- 2790/1999 of 22 December petition rules. An agreement, extend to agency agreements, as ices. The declaration also 1999 on the application of arti- decision or concerted practice they were confined to agree- applies to vertical agreements cle 81(3) of the treaty to cate- that infringes section 4(1) of the ments for the resale of goods containing provisions that gories of vertical agreements 2002 act may be exempted if cer- and services. A genuine agency relate to the assignment to the and concerted practices (OJ tain conditions set out in section agreement is defined as an buyer or use by the buyer of 1999 L336/21 – the Vertical 4(5) are found to exist. The agreement whereby the agent is intellectual property rights, restraints block exemption regula- Competition Authority is vested with the power to nego- provided that those provisions tion). empowered to exempt a defined tiate and/or conclude contracts do not constitute the primary The notice and declaration category of agreements, deci- on behalf of the principal either object of such agreements and repeal the Competition sions and concerted practices by in the agent’s own name or in are directly related to the use, Authority Notice in respect of way of declaration. the name of the principal in sit- sale or resale of goods or serv- agreements between suppliers and uations where the agent does ices by the buyer or its cus- resellers, dated 1 July 2002, and The notice not bear any or bears only tomers. The declaration applies Competition Authority decision Under the terms of the notice, insignificant risks in relation to only on condition that the mar- number 528, providing for a the Competition Authority the contracts concluded and/or ket share held by the supplier category licence in respect of expresses the view that if an negotiated on behalf of the does not exceed 30% of the rel- agreements between suppliers agreement falls within the terms principal and in relation to mar- evant market for the contract and resellers, dated 4 December of the notice, the agreement ket-specific investments for that goods or services. The declara- 1998, except for certain transi- does not infringe section 4(1) of field of activity. It should be tion provides that if the vertical tional arrangements that pro- the 2002 act. The notice pro- noted that an agency agreement agreement contains an exclu- vide for the continued applica- vides that non-exclusive distri- that is not considered to be a sive supply obligation, the dec- tion of the old notice and cate- bution agreements and ‘genuine genuine agency agreement laration applies only on condi- gory licence until 30 June 2004. agency agreements’ are not con- under the notice may be tion that the market share held trary to section 4(1) of the 2002 exempted under the terms of by the buyer (as opposed to the Section 4(1) – agreements, act. A non-exclusive distribution the declaration. seller) does not exceed 30% of decisions and concerted agreement is defined as one The notice provides that the the relevant market on which it practices where the supplier agrees to following types of agreement purchases the contract goods Section 4(1) of the Competition supply the contract goods or do not involve a breach of sec- or services. The above reflects Act, 2002 prohibits agreements services to the buyer for a cer- tion 4(1) of the 2002 act, pro- the Vertical restraints block between undertakings, decisions tain territory but without any vided that the market share of exemption regulation. Under the by associations of undertakings restriction on supplying other the undertakings on the rele- old notice and category and concerted practices that have buyers within that territory. It vant market does not exceed licence, the market share limi- as their object or effect the pre- provides that where, de facto, the 15%: exclusive distribution tation was that neither party to vention, restriction or distortion supplier enters into an agree- agreements, exclusive purchas- the agreement could have a of competition in trade in goods ment with only one single buyer ing agreements, selective distri- market share in excess of 20% or services in the state or in any within the territory, the agree- bution systems and franchising or 40% of the relevant market part of the state. An agreement, ment will not be considered to agreements. respectively.

47 Law Society Gazette March 2004 Briefing

Black-listed clauses plies between distributors market, calculated on the do not apply to vertical agree- The notice and declaration within a selective distribution basis of the value of its pur- ments entered into between specify that they do not apply to system, including between chases in the preceding calen- ‘competing undertakings’, vertical agreements that, direct- distributors operating a dif- dar year except that the declaration does ly or indirectly, in isolation or in ferent level of trade • Any direct or indirect obliga- apply where the competing combination with other factors • The restriction agreed tion that causes the buyer undertakings enter into a non- under the control of the parties, between a supplier of compo- after termination of the reciprocal vertical agreement have as their object: nents and a buyer who incor- agreement not to manufac- and: • The restriction of the buyer’s porates those components ture, purchase, sell or resell • The supplier is a manufactur- ability to determine its sale that limits the supplier to goods or services, unless the er and a distributor of goods, prices without prejudice to selling the components as obligation relates to goods or whereas the buyer is a distrib- the ability of the supplier to spare parts to end-users or to services that compete with utor not manufacturing impose a maximum sale price repairers or other service goods competing with the or recommend a sale price, providers not entrusted by contract goods, or provided that they do not the buyer with the repair or • The supplier is a provider of amount to a fixed or mini- servicing of its goods. services at several levels of mum sale price as a result of trade, while the buyer does pressure from, or incentives Non-compete clauses not provide competing serv- offered by, any of the parties The notice and declaration ices at the level of trade • The restriction of the territ- clearly specify that they do not where it purchases the con- ory into which, or the cus- apply to vertical agreements tract services. tomers to whom, the buyer that contain the following obli- may sell the contract or serv- gations: The term ‘competing undertak- ices, except: •A direct or indirect non-com- ings’ is defined effectively as 1) The restriction of active pete obligation that is indefi- actual or potential suppliers in sales into the exclusive ter- nite or exceeds five years. the same product market. ritory or to an exclusive Both the notice and declara- customer group reserved tion make it clear that a non- Commission notice on to the supplier or allocated compete obligation, which is the contract goods or services vertical restraints by the supplier to another tacitly renewable beyond a and is limited to the premises The EU Commission has issued buyer, where such a period of five years, is and land from which the a notice entitled Guidelines on restriction does not limit deemed to be concluded for buyer has operated during the vertical restraints (OJ 2000 sales by the customers of an indefinite duration. The contract period and is indis- C291/1), which provides the buyer five-year time limit does not pensable to protect know- detailed guidance on the appli- 2) The restriction of sales to apply where the contract how transferred by the sup- cation of the Vertical restraints end-users by a buyer oper- goods or services are sold by plier to the buyer, and provid- block exemption regulation and on ating at the wholesale level the buyer from premises and ed that the duration of the vertical restraints generally in of trade land owned by the supplier or non-compete is limited to a the context of EU competition 3) The restriction of sales to leased by the supplier from period of one year after ter- law (the Commission vertical unauthorised distributors third parties not connected mination of the agreement restraints notice). The Commission by members of its selective with the buyer, provided that (the above is without preju- vertical restraints notice should be distribution system, and the duration of the non-com- dice to the possibility of consulted when examining an 4) The restriction of the pete does not exceed the peri- imposing a restriction that is issue related to vertical buyer’s ability to sell com- od of occupancy of the prem- unlimited in time on the use restraints in the context of Irish ponents, supplied for the ises and land by the buyer. and disclosure of know-how competition law. purposes of incorporation, The declaration defines a that has not entered into the to customers who would non-compete obligation as public domain) Transitional provisions use them to manufacture any direct or indirect obliga- • Any direct or indirect obliga- The notice and declaration con- the same types of goods as tion causing the buyer not to tion causing the members of a tain transitional arrangements those produced by the sup- manufacture, purchase, sell selective distribution system which provide that existing plier or resell goods or services not to sell the brands of par- agreements and concerted prac- • The restriction of active or that compete with the con- ticular competing suppliers. tices that comply with the old passive sales to end-users by tract goods or services, or any notice or the category license members of a selective distri- direct or indirect obligation Exceptions that were entered into prior to 1 bution system operating at on the buyer to purchase The notice and declaration do January 2004 are to continue to the retail level of trade (this is from the supplier or from not apply to exclusive purchas- benefit from the notice and cat- without prejudice to the pos- another undertaking desig- ing agreements whereby the egory licence until 30 June sibility of prohibiting a mem- nated by the supplier more buyer is not free to buy and sell 2004. G ber of the system from oper- than 80% of the buyer’s total competing products in respect ating out of an unauthorised purchases of the contract of motor fuels and liquefied Marco Hickey is head of the EU place of establishment) goods or services and their petroleum gas. and Competition Law Department • The restriction of cross sup- substitutes on the relevant The notice and declaration of LK Shields Solicitors.

48 Law Society Gazette March 2004 Briefing Recent developments in European law ESTABLISHMENT AND need to uphold public order in applied to the ECJ for a declara- between the sign and a mark with SERVICES order to justify restrictive meas- tion that this administrative prac- a reputation in order to claim ures. The court held that it was tice is contrary to community law. infringement of that mark. It is Case C-243/01 Criminal for the national court to deter- The court pointed out that, in the sufficient if the relevant section of Proceedings against Piergiorgio mine whether the conditions for case of unemployed frontier work- the public establishes a link Gambelli and 137 Others, 6 running betting operations could ers who are not residing in the between the sign and the mark, November 2003. Gambelli and be more easily satisfied by Italian member state where they were even if it does not confuse them. 137 others manage data-trans- than by foreign operators. If so, last employed, the regulation However, if the public view the mission centres in Italy that col- those conditions are discrimina- establishes a specific require- sign purely as a decorative motif, lect bets in Italy on behalf of an tory. The national court was then ment of payment of unemploy- it does not necessarily establish English bookmaker to which the invited to consider whether the ment benefits for the member any link with the mark with a rep- internet links them. The English imposition of a criminal penalty state of residence. As the mem- utation. In those circumstances, bookmaker is licensed under on an intermediary who facilitates ber state of residence has sole the proprietor of the mark cannot English law. Italian legislation the provision of services by a competence for payment of such prevent its use as an embellish- reserves the collection of bets to bookmaker established in anoth- benefits to the former worker, it is ment by a third party. the state or its licensees. er member state is not dispropor- the only state able to ensure that Breaching this legislation can tionate, given that the state payment of unemployment benefit Case C-191.01P Office for result in criminal penalties, encourages such activity. The to him may continue if he goes to Harmonisation in the Internal including imprisonment for up to national court was also asked another member state in order to Market (Trade Marks and Designs) one year. Criminal proceedings whether these restrictions go seek employment. The Dutch (OHIM) v Wm Wrigley Jr Company, were taken against Gambelli and beyond what is necessary in refusal to pay benefits to frontier 23 October 2003. In 1996, Wrigley others for taking bets. He argued order to combat fraud. workers wishing to go to another applied to register ‘Doublemint’ as that the Italian legislation state to seek employment puts a community trademark for chew- breached EC rules on establish- FREE MOVEMENT OF those workers at a disadvantage ing gum. This was refused on the ment and the provision of servic- WORKERS compared with workers in general. grounds that the word was descrip- es. An Italian court made a refer- Frontier workers will be deterred tive of certain characteristics of ence to the ECJ. The court held Case C-311/01 Commission of or even prevented from going to the goods concerned. Wrigley that the Italian legislation was a the European Communities v other member states to seek appealed against that decision to restriction on the freedom of Kingdom of the Netherlands, 6 work. They would be penalised for the CFI. The CFI held that the word establishment, the freedom to November 2003. The community exercising the right of free move- was capable of registration as a provide services and the freedom regulation on the application of ment that is guaranteed to them trademark. ‘Doublemint’ had two to receive or benefit from a serv- social security schemes to work- by the treaty. possible meanings – twice the ice offered by a supplier. ers moving within the EU has usual amount of mint or flavoured Restrictions can be justified if rules that apply specifically to INTELLECTUAL with two varieties of mint. The they are necessary for consumer those workers who cross a border PROPERTY word ‘mint’ is generic and includes protection and for the preserva- when going to and from work a number of different types of tion of the social order. The main (‘frontier workers’). If they Case C-408/01 Adidas-Salomon mint. As the word had numerous aim of such restrictions should be become unemployed, they are AG and Others v Finesseworld meanings, it was deprived of any to focus on an overriding reason entitled to benefits in the state in Trading Ltd, 23 October 2003. descriptive function. OHIM of general interest – such as the which they reside as though they Adidas has its trademark of three appealed against this judgment to reduction of gaming opportuni- were employed in that state. parallel vertical stripes registered the ECJ. The court set aside the ties. The procurement of finances Workers who become unemployed in the Benelux. The respondent judgment of the CFI. It held that a for public funds is not such a jus- and go to another state to seek markets sport clothes with a sim- sign must be refused registration if tification. Any restrictions must employment are entitled to ilar motif, composed of two verti- at least one of its possible mean- be proportionate and non-discrim- receive unemployment benefits cal stripes rather than three. ings designates a characteristic of inatory. Italy is encouraging the for a period of three months. The Adidas brought an action in the the goods or services concerned. expansion of betting and gaming Dutch authorities refuse unem- Dutch courts arguing that there The CFI had applied a test based in the state, but restricting the ployment benefit to unemployed was a likelihood of confusion on whether the trademark was provisions of such services to frontier workers who live in the between the two motifs. The case ‘exclusively descriptive’. This is state licensees. The ECJ held that Netherlands but who wish to go to was referred to the ECJ. It held not the test laid down by the regu- if a state was encouraging such another member state to seek that it is not necessary for there lation on the community trade- activity, it could not rely on the employment. The commission to be a likelihood of confusion mark. G

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Meet at the Four Courts LAW SOCIETY ROOMS Courtat the Four Courts

49 Law Society Gazette March 2004 People and places

Friends reunited University College Cork’s BCL class of 1978 recently held a reunion. Pictured with class member Colm Burke, now lord mayor of Cork, are Kathleen Dineen, Deirdre McMichael, Geraldine Keane, Han Fitzgerald, Marie Twomey, Pamela Treacy, Bridget Hynes, Ruth O’Meara, Paul Sreenan, John Garavan, Teresa Murphy, Eamon Murray, Justin McCarthy, Patrick Long, Diarmuid F Kelleher, Mary Sweeney, Ursula McSweeney, Colm Houlihan, Sean Cahill, Michael Prenderville, John Brooks, Raymond Hennessy, Justin Condon, Gerald AJ O’Flynn, Don O’Connor and Eamon Fleming

CEDR trees Pictured at the Centre for European Dispute Resolution (CEDR) training course at A&L Goodbody in January are (back row, from left) John Sterling service Cheatle BL, Oliver J Connolly BL, CEDR director Tony Allen, John P To mark his forthcoming retirement as registrar of solicitors after 29 Trainor SC, Ian Finlay SC, Austin Kenny and Kenny Cunningham; (middle years of service with the Law Society, PJ Connolly was the guest of row, from left) Patrick J Burke, Caroline Crowley of Hayes Solicitors, honour at a dinner hosted by the former chairmen of the Compensation James Connolly SC, Lawrence Kershen QC, Helen Kilroy of McCann Fund Committee over the years. Pictured are (back row, from left) FitzGerald, CEDR director Terry Jones; (front row, from left) Gabriel Daly director general Ken Murphy, Gerard Doherty (chairman, 1998-2001), of Beauchamps, mediator and trainer Charles Dodson, Duncan Grehan Simon Murphy (2001-04), Laurence K Shields (1988-90), Ward McEllin of Duncan Grehan and Partners, Liam Kennedy and Joe Kelly of A&L (1990-94), Tom Shaw (1977-80) and Francis D Daly (1985-88); (front Goodbody, Lorraine Compton of Matheson Ormsby Prentice, Dudley row, from left) Geraldine Clarke (1994-96), PJ Connolly, Law Society O’Donnell of the Chief State Solicitor’s Office, CEDR course manager president Gerard F Griffin, and deputy director general Mary Keane Tracey Commock, and ADR liaison Audrienne Spiteri Gonzu

50 Law Society Gazette March 2004 People and places

OBITUARY

Peter Prentice 1915 – 2003

he death of Peter Prentice on 17 Hardman & Sons, qualifying as a TNovember 2003 has deprived the solicitor in Easter 1938. Irish legal community of one of its most Peter’s public spiritedness did not illustrious members. The President of only relate to the Law Society. He the Law Society, Gerard Griffin, was a member of the Charitable referred to him as ‘an iconic figure in Commissioners of Donations and the history of the Law Society’. Bequests for many years and became Peter played a major role in the Law the first ever solicitor chairman (a Society of Ireland, where his charm, post normally reserved for High determination and vision served the Court judges). He also served as a profession in a unique way. In member of the Censorship Board. particular, it was his drive, ingenuity and foresight that were the Peter was a director of several companies in Ireland and was primary factors in the acquisition of the society’s Blackhall Place appointed chairman of the Trustee Savings Bank in 1987. headquarters. At a special meeting of the Law Society Council He was always proud of his heritage and particularly on 3 July 1968, Peter proposed a motion that the society relished his French Huguenot Maziere connection. He was a purchase the King’s Hospital for the sum of £105,000. The trustee of the Huguenot Society. motion was carried unanimously. However, few such matters Peter Prentice was an active member of the Church of run smoothly, and the Blackhall Place project was no exception. Ireland and served the church as a member of the Peter Prentice headed the Special Premises Committee and Representative Church Body for over 30 years and assisted on undertook the enormous task of organising the funding both of the incorporated society dealing with education for 40 years. the purchase and alterations necessary to complete the project. He was chancellor of two Church of Ireland dioceses, It was not until 14 June 1978 that the opening of Blackhall Limerick and Killaloe and Meath and Kildare. Place was performed by the then president, Joseph Dundon. In 1942, he was approached by Ernest Prentice, his uncle, During that opening, Peter Prentice was specifically praised as to join the firm Matheson Ormsby & Prentice. The terms the one who had the foresight to identify the premises and the under which Peter joined the firm had not been discussed. energy to drive the task forward. Peter told the story that, having worked for about three As in all the tasks he undertook, he proved in this months without pay, he plucked up the courage to confront his achievement that he was not afraid to take decisions and to live uncle and asked him if he was a partner. Ernest Prentice licked with their consequences. Peter always said that the project his pencil, jotted on the back of an envelope, made a quick could never have been completed if an extraordinary general calculation, and indicated to Peter his share. So Peter became meeting of the members of the society had been called, and a partner. that, in order to achieve the objectives, the Council of the When Peter joined the firm, there was only Ernest Prentice society had to undertake responsibility. and his son Cecil working in the practice, both Matheson and He was first elected a member of the Law Society Council in Ormsby having previously retired. Soon afterwards, Ernest November 1960 and served as its president in 1973/74. Prentice was to die, which left only Peter and Cecil to run the Peter Donald Maziere Prentice was born in Waterford on 5 practice. The practice then had offices in Unity Buildings near August 1915, the son of Maziere Prentice and his wife Aphra Clery’s on O’Connell Street. In December/January 1950/51, (née Carden). His father, like his grandfather and great John Ross joined the firm. In 1961, Peter, with encouragement grandfather, was a bank manager in the Bank of Ireland. The from Cecil and John, moved the firm to 20 Upper Merrion early years of Peter’s life were spent in Waterford, Cork and Street. The partners were teased by their colleagues that MOP Clonmel, where his father worked as the local agent to the had moved to the country. Peter and John both had the Bank of Ireland. foresight to see the economic development that was occurring Peter was educated at Avoca School, Blackrock, before going in Ireland and effectively transformed the firm from a practice on to become apprenticed as a solicitor in the firm of TW concerned only with private client work into one undertaking

51 Law Society Gazette March 2004 People and places

corporate work for commercial clients. The next day the young solicitor came to the office Peter was an excellent lawyer. He always appeared able to find believing that his career with the firm was in irretrievable, if the law very quickly. He understood and liked the law, and he not instant, decline. To his horror, the solicitor met Peter had the ingenuity to see how the law could be worked for the Prentice on the stairs in the early morning. He tried benefit of clients. He was a quick and excellent draftsman and an unsuccessfully to merge with the wall but Peter stopped him able advocate in commercial transactions. Above all, however, he and congratulated him on obtaining publicity for the firm, was a solicitor who was not afraid to represent an unpopular reminding him that ‘no publicity was bad publicity’. That tale, position, and he had an ability to communicate with people in all more than any other, exemplifies Peter Prentice’s ability to look his dealings with them. at the human side of a situation and to react in a generous and His ability to communicate and to engender a feeling of sympathetic manner to alleviate the embarrassment of a young warmth made the firm which he led into a family unit, where colleague. loyalty and integrity were cherished. He was a wonderful person Peter was essentially a modest man who enjoyed above all his to work for and with. He never panicked, had an even home, reading and tinkering with boats in Mount Shannon, disposition, and was always ready to assist a young colleague. where the family had a house. Peter was usually able to understand what people in the practice Peter married Sheila (née Moore), whom he met when he was required and sought. His presence gave encouragement and 21 and she 17, on 16 June 1943. Peter and Sheila had five strength to people in the firm, irrespective of the mistakes that children. Sadly, Donnie, their first born, died just before his had been made. seventh birthday; this was the one permanent sadness in their Perhaps this was best illustrated by the case of a recently otherwise happily-married life. Gair, Hilary, Susan and William qualified young solicitor who had joined the firm. The solicitor were subsequently born to Peter and Sheila. That the law had a sent an apprentice to the District Court to make a plea for a strong influence in all of their lives can be evidenced by the fact parking offence committed by his sister. The district justice that both Gair and Susan married solicitors, while Hilary and became outraged at having an apprentice appear in his court and William have both succeeded Peter in the practice of Matheson promptly placed her under arrest for contempt of court. The Ormsby Prentice. G front page of the Evening Herald reported extensively on the incident. Members of the firm were embarrassed. MI

52 Law Society Gazette March 2004 Professional information

LOST LAND of Condons and Clongibbon and CERTIFICATES county of Cork; Co Cork LawSociety Regd owner: Patrick and Bridget Gazette Registration of Title Act, 1964 McCarthy; folio: 8202; lands: a An application has been received from plot of ground in the electoral the registered owners mentioned in division of Castleventry being part ADVERTISING RATES the schedule hereto for the issue of a of the townland of Inchinattin in Advertising rates in the Professional information section are as follows: land certificate as stated to have been the barony of Carbery East (West Lost land certificates – €46.50 (incl VAT at 21%) lost or inadvertently destroyed. A new division) and county of Cork; Co • Wills – €77.50 (incl VAT at 21%) certificate will be issued unless notifi- Cork • Lost title deeds – €77.50 (incl VAT at 21%) cation is received in the registry with- Regd owner: John Brendan Palmer • Employment miscellaneous – €46.50 (incl VAT at 21%) in 28 days from the date of publica- (senior) (deceased); folio: 31477F; • tion of this notice that the original lands: a plot of ground being part HIGHLIGHT YOUR ADVERTISEMENT BY PUTTING A BOX AROUND IT – €30 EXTRA certificate is in existence and in the of the townland of Caherduggan All advertisements must be paid for prior to publication. Deadline for April custody of some person other than South in the barony of Fermoy Gazette: 19 March 2004. For further information, contact Catherine Kearney and county of Cork; Co Cork the registered owner. Any such notifi- or Valerie Farrell on tel: 01 672 4828 (fax: 01 672 4877) cation should state the grounds on Regd owner: Christopher Crowley; which the certificate is being held. folio: 59387; lands: a plot of (Register of Titles), Central Office, Land ground being part of the townland Altashane, Carndonagh, Co folio: 30434F; lands: Callowfinish; Registry, Chancery Street, Dublin of Huggarts Land in the barony of Donegal; folio: 13731F; lands: Co Galway (Published 5 March 2004) Cork and county of Cork; Co Altashane or Cabadooey; area: Regd owner: Bridget Lucid; folio: Cork 1.450 acres; Co Donegal 20346F; lands: townland of Regd owner: Patrick McKiernan, Regd owner: Daniel and Hannah Regd owner: Seán McGuinness, Booleenshare and barony of Drumbrawn, Cloverhill, Co Dilworth; folio: 33844; lands: a Hillhead, Ardara, Co Donegal; Clanmaurice, Co Kerry; Co Kerry Cavan; folio: 12301; lands: plot of ground being part of the folio: 6995; lands: Ardara; area: Regd owner: Jeremiah O’Sullivan; Drumbrawn (parts); area: 11.2679 townland of Curraghnalaght in the 4.8415 hectares; Co Donegal folio: 23476; lands: townland of hectares; Co Cavan barony of Muskerry East and Regd owner: Rosaleen Boxwell; folio: Caherbreagh and barony of Regd owner: G&N House Supplies county of Cork; Co Cork DN23576F; lands: property situ- Tr ughanacmy; Co Kerry Limited; folio: 29123F; lands: Regd owner: Gilberte Marie Therese ate in the townland of Burrow and Regd owner: Anthony and Kate townland of Smithstown and O’Mahony; folio: 40576; lands: a barony of Nethercross; Co Cudmore; folio: 26729F; lands: barony of Bunratty Lower; area: plot of ground being part of the Dublin townland of Walshestown and 0.2088 hectares; Co Clare townland of Clonbouig in the Regd owner: Kathleen Byrne; folio: barony of Connell; Co Kildare Regd owner: Anthony Rynne; folio: barony of Carbery East (East DN10781L; lands: the property Regd owner: Michael and Isabella 814L; lands: Knockballynameath Division) and county of Cork; Co known as 19 Clanhugh Road situ- Doyle; folio: 3871; lands: townland and barony of Bunratty Lower; Co Cork ate in the parishes of Artaine and of Allenwood South and barony of Clare Regd owner: Edmond Budds; folio: Killester and districts of Artaine Connell; Co Kildare Regd owner: Maureen and Patrick 32761; lands: plot of ground being West and Clontarf; Co Dublin Regd owner: Michael and Noreen Barry; folio: 51515; lands: a plot of part of the townland of Ballyre and Regd owner: Kieran Lawler; folio: Kennedy; folio: 11843F; lands: ground being part of the townland barony of Imokilly; Co Cork DN24664F; lands: property situ- Gallowshill and barony of of Ballyadack North in the barony Regd owner: Michael McDaid, ate in the townland of Oldbawn Shillelogher; Co Kilkenny and barony of Uppercross; Co Regd owner: Mary Minogue; folio: Dublin 15296F; lands: Gardens and Regd owner: Louisa M Kearney; barony of Kilkenny Borough; Co DUBLIN SOLICITORS’ folio: DN11653F; lands: the prop- Kilkenny PRACTICE OFFERS erty known as no 4 Larkfield Regd owner: Patrick J Fitzgibbon; ABACUS AGENCY WORK Avenue situate in the parish of St folio: 12260; lands: Sandylane and IN NORTHERN Peter’s and District of Rathmines; barony of Clanwilliam; Co BOOK KEEPING IRELAND Co Dublin Limerick Regd owner: Thomas Wheelan; Regd owner: Esther Hammond; SERVICES * All legal work undertaken on an agency basis folio: DN19089; lands: a plot of folio: 5357F; lands: townland of * All communications to clients ground situate on the north side of Foyle and barony of Clanwilliam; through instructing solicitors Sallynoggin Road, in the parish of Co Limerick SPECIALISING IN * Consultations in Dublin if required Monkstown and borough of Dun Regd owner: Peadar Breen and Mary LEGAL ACCOUNTS, Laoghaire; Co Dublin Elizabeth Breen, 350 Beechmont Contact: Séamus Connolly Regd owner: William Walshe and Drive, Dundalk, Co Louth; folio: NORTH EASTERN Moran & Ryan, Solicitors, Arran House, Niamh Walshe; folio: DN87648F; 4237L; lands: Marshes Upper; Co REGION 35/36 Arran Quay, Dublin 7. lands: property situate in the Louth townland of Mount Merrion or Regd owner: Thomas J Keane; folio: For further information, Tel: (01) 872 5622 Callary and barony of Rathdown; Crossboyne, Claremorris, Co please contact Fax: (01) 872 5404 Co Dublin Mayo; lands: townland of (1) and Fleur @ Regd owner: Michael Brennan and (3) Drummin West, (2) Drummin e-mail: [email protected] Mary Brennan; folio: DN23345L; South and barony of Clanmorris; 042-9382157 or Bank Building, Hill Street lands: property situate in the area: (1) 8.725 acres, (2) 4.913 086-8147270 Newry, County Down. Tel: (0801693) 65311 townland of Newbrook and acres, (3) 6.406 acres; Co Mayo [email protected] Fax: (0801693) 62096 barony of Coolock; Co Dublin Regd owner: Mary Patricia E-mail: [email protected] Regd owner: Patrick Conway; Camplisson and Seamus Callowfinish, Carna, Co Galway; Camplisson, Corballis, Garlow

53 Law Society Gazette March 2004 Professional information

Cross, Navan, Co Meath; folio: Scanlon; folio: 9642f; lands: Partners, Solicitors, 58 South Mall, and formerly of 165 Willow Park, 14189F; lands: Corballis; area: Churchtown and barony of Cork. €10 reward for return of the Clonmel, Co Tipperary. Would any 58.519 acres, 0.366 acres and 0.025 Shelburne; Co Wexford original will person having knowledge of a will acres; Co Meath made by the above named deceased Regd owner: Seamus Walshe, McDonald, Godfrey J (deceased), who died on 7 December 2003, please Lisaquill, Bloomfield, Castleblay- WILLS late of 28 Dublin Street, Carlow. contact O’Donnell Breen-Walsh ney, Co Monaghan; folio: 19467; Would any person having knowledge O’Donoghue, Solicitors, Trinity lands: Lisaquill and Lisaquill; area: Bourke, Joseph (deceased), late of of a will made by the above named House, 8 George’s Quay, Cork; tel: 0.4299 hectares and 1.8564 Main Street, Charleville, Co Cork and deceased who died on 29 May 1963 at 021 431 3911; fax: 021 432 0316 (ref: hectares; Co Monaghan Inchinclare, Banogue, Croom, Co 28 Dublin Street, Carlow, please con- McA/D1369) Regd owner: Rose Mary Lynch; folio: Limerick. Would any person having tact Corrigan & Corrigan, Solicitors, 772; lands: Killooly and barony of any knowledge of a will made by the 3 St Andrew Street, Dublin 2; tel: 01 Ballyboy; Co Offaly above named deceased who died on 18 677 6108 The Succession Act, 1965: Regd owner: Mary Bennett; folio: January 2004 at the Regional Hospital, statutory notice to creditors 1133f; lands: Cortullagh or Grove Limerick, please contact James Binchy McDonald, Mary (deceased), late of In the estate of Teresa Jane and barony of Garrycastle; Co & Son, Solicitors, Main Street, 28 Dublin Street, Carlow. Would any Quigley (deceased), late of 27 Offaly Charleville, Co Cork; tel: 063 81214 person having knowledge of a will Sutton Grove, Sutton, in the Regd owner: Anthony Francis Hannon; made by the above named deceased county of Dublin. folio: 1096F; lands: Lisbaun and Brogan, Mary (deceased), late of who died on 3 June 1986 at St Brigid’s Notice is hereby given pur- barony of Athlone South; area: Cappagh, Carron, Co Clare. Would Hospital, Carlow, please contact suant to section 49 of the 0.2529 hectares; Co Roscommon any person having knowledge of a will Corrigan & Corrigan, Solicitors, 3 St Succession Act, 1965 that all claims Regd owner: Michael Healy (deceased); made by the above named deceased Andrew Street, Dublin 2; tel: 01 677 against the estate of the above folio: 23189; lands: townland of who died on 28 January 2004, please 6108 named deceased who died on 24 Kilmore (Ed Athleague East) and contact Patrick A Burke & Co, May 2002, probate of whose will barony of Athlone North; area: Solicitors, The Middle Yard, Kinvara, McDonald, Godfrey F (deceased), was granted on 6 February 2003, 10.6735 hectares; Co Roscommon Co Galway; tel: 091 637 733, fax: 091 late of 28 Dublin Street, Carlow. should be furnished in writing to Regd owner: Eileen Keville, late of 637 814 Would any person having any knowl- the undersigned solicitors for the Corry, Kilmore, Co Roscommon; edge of a will made by the above executrix on or before 5 April folio: 8891F; lands: Corry, Dangan Dunne, James (deceased), late of 28 named deceased who died on 4 2004, after which date the assets (Nugent) Cuiltyshinnoge, Corry; Rosemount Estate, Dundrum, Dublin January 2004 at District Hospital, will be distributed having regard Co Roscommon 14. Would any person having any Carlow, please contact Corrigan & only to the claims furnished, if Regd owner: Martin Joseph Brennan; knowledge of a will made by the above Corrigan, Solicitors, 3 St Andrew any. folio: 6996; lands: townland of named deceased who died on 24 April Street, Dublin 2; tel: 01 677 6108 Any person having knowledge Powellsborough and barony of 2003 at Tallaght Hospital, Dublin 24, of Marianne McAviney, John Leyny; area: 6.5280 hectares; Co please contact Vivian C Matthews, Mullarney, Elizabeth (deceased), late McAviney, Peter McAviney, Sligo Solicitor, 7 Main Street, Dundrum, of 12 Rathdown Terrace, Sandyford, Thomas McAviney, Joseph Mc- Regd owner: John and Patricia Moore; Co Dublin Dublin 16. Would any person having Aviney, their spouses and/or issue, folio: 9133F; lands: townland of knowledge of a will made by the above who resided at Whitehall Street, Lehinch and barony of Ormond Durkin, Mary (deceased), late of named deceased who died on 3 Clones, Co Monaghan in or about Lower; Co Tipperary Louisburgh Road, Murrisk, Westport, February 1998, please contact Peter 1890, should furnish details to the Regd owner: Nicholas Philip Martin Co Mayo. Would any person having Gartlan & Company, Solicitors, 56 undersigned solicitors for the Maher; folio: 3270; lands: townland knowledge of a will made by the above Lower Dorset Street, Dublin 1; tel: 01 executrix by the same date. of Freaghduff and barony of named deceased who died on 855 7434, fax: 01 855 1075 Date: 5 March 2004 Middlethird; Co Tipperary 11 January 2004 at District Signed: Arthur O’Hagan (solicitors Regd owner: Ann Tierney; folio: Hospital, Swinford, Co Mayo, please O’Boyle, Brenda (deceased), late of for the applicant), 9 Harcourt 23046; lands: Ballymakeogh and contact Oliver P Morahan and 20 Greenlea Park, Terenure, Dublin Street, Dublin 2 barony of Owney and Arra; Co Son, James St, Westport, Co Mayo; 6W. Would any person having knowl- Tipperary tel: 098 25075; e-mail: morahan edge of a will being made by the above Regd owner: Thomas Drohan; folio: [email protected] named who died on 18 December 1011F; lands: a plot of ground being 2003, please contact Cahill and EMPLOYMENT part of the townland of Ardnahow in Garahy, Mary (Molly) (deceased), Company, Solicitors, Abbeyleix, Co the barony of Middlethird and coun- late of Furglan Cross, Lahinch, Co Laois; tel: 0502 31220; fax: 0502 Co Cavan: solicitor required for ty of Waterford; Co Waterford Clare. Would any person having 31480 general practice with 2/3 years’ PQE. Regd owner: William Evans, knowledge of a will executed by the Immediate start. John V Kelly & Co, Baronstown, Ballynacarrigy, Co above named deceased who died on 3 Ryland, John (otherwise Jackie) 27 Church Street, Cavan; DX21002. Westmeath; folio: 1692F; lands: January 2004, please contact (deceased), late of Main Street, Contact: Paul V Kelly; tel: 049 433 Baronstown Demesne; area: 10.2436 Chambers & Company, Solicitors, Banagher, Co Offaly. Would any per- 1988; fax: 049 436 2653; e-mail: hectares, 0.2149 hectares and 0.3187 Parliament Street, Ennistymon, Co son having knowledge of a will made [email protected] hectares; Co Westmeath Clare by the above named deceased who Regd owner: Mary Pettit, Spittalstown, died on 22 August 2003, please contact Solicitor available for part-time work Streamstown, Co Westmeath; folio: Healy, Marjorie (otherwise Mary) DA Houlihan & Son, Solicitors, in Co Kerry. Please contact box no 8164; lands: Cloghanaskaw; area: (deceased), late of Old Court, Birr, Co Offaly; tel: 0509 20026; fax: 20/04 for copy CV 9.0953 hectares; Co Westmeath Rochestown, Co Cork. Would any 0509 21086; e-mail: dahoulihan@ Regd owner: Flannan P Collins; folio: person having knowledge of a will eircom.net Solicitor with excellent conveyancing 17237F; lands: Tarahill and barony of the above named deceased who experience (including commercial of Ballaghkeen North; Co Wexford died on 29 October 2002, please Walsh, Margaret (Peg) (deceased), property) seeks position in the Dublin Regd owner: Sean Scanlon and Maria contact O’Flynn Exhams & late of 8 Deerpark, Silversprings, Cork area. Box no 21/04

54 Law Society Gazette March 2004 Professional information

Apprentice solicitor available. A Northern Ireland solicitors provid- mature graduate (BA, H Dip in ed) ing an efficient and comprehensive seeks trainee position. Hardworking, legal service in all contentious/non- enthusiastic and personable. Passed contentious matters. Dublin-based www.liquidations.ie all FE1s and Irish exam. Computer consultations and elsewhere. Fee For information on insolvency, employees entitlements, literate. Any area considered. Please apportionment. ML White, defending a section 150 application, informal schemes contact Brendan on 087 960 4739 Solicitors, 43-45 Monaghan Street, of arrangement, dealing with the sheriff, services to Newry, Co Down; tel: 080 1693 solicitors and free Insolvency Helpline Service. Experienced enthusiastic solicitor 68144, fax: 080 1693 60966 seeks immediate position in midlands/ mid-west areas. Has experience in all Northern Ireland agents for all con- major areas of law, particularly con- tentious and non-contentious mat- veyancing and family law. Reply to ters. Consultation in Dublin if box no 22/04 required. Fee sharing envisaged. Offices in Belfast, Newry and walk to beach. All mod cons. Available Simpson of the fifth part for a term of Carrickfergus. Contact Norville from August 7. Tel: 01 834 4255 or 60 years from 1 November 1936 sub- MISCELLANEOUS Connolly, D&E Fisher, Solicitors, 8 086 8112479 ject, along with other premises, to the Tr evor Hill, Newry; tel: 080 1693 yearly rent of £12. Seven-day ordinary publican’s 61616, fax: 080 1693 67712 English property agent – Irish per- Take notice that the applicant, licence – enquiries to: Geoffrey son with legal background available in Logcraft Limited, being the person Browne & Company, Solicitors, England and Wales solicitors will London to manage rental properties entitled under sections 9 and 10 of the Augustine Court, St Augustine Street, provide comprehensive advice and or act as agent in letting same. Suit Landlord and Tenant (Ground Rents) (No Galway. Tel: 091 568 713, fax: 091 undertake contentious matters. investors in residential property in 2) Act, 1978, intends to submit an 561 279 Offices in London, Birmingham, central London or north London application to the county registrar for Cambridge and Cardiff. Contact suburbs only. Highest integrity and the county/city of Dublin for the Levenes Solicitors at Ashley House, confidentiality assured. Tel: 0044 208 acquisition of the freehold interest and PREMISES TO RENT 235-239 High Road, Wood Green, 4249311 – evenings 7.30 pm to 10 pm any intermediate interests in the afore- London 8H; tel: 0044 2088 17777, said property, and any party asserting Across from Four Courts - At fax: 0044 2088 896395 that they hold a superior interest in the Merchants’ Court, D.8. Extensive TITLE DEEDS aforesaid premises or any of them are office suite. Recently decorated Licence wanted – ordinary seven- called upon to furnish evidence of title and ducted with generous computer and power points. day publican’s licence required. Please 14 Grove Lawn, Blackrock, Co to the aforementioned premises to the Plenty of natural light plus contact James P Sweeney & Dublin – anybody with any informa- below named within 21 days from the downlighting. Gracious rooms, Company, Solicitors, Falcarragh, Co tion regarding the whereabouts of date of this notice. carpeted entirely, with bonus of Donegal; reference RX0049/BJT; tel: the title deeds of 14 Grove Lawn, In default of any such notice being alcove shelving, kitchenette. 074 913 5121; fax: 074 913 5704; e- Blackrock, Co Dublin, please contact received, Logcraft Limited intends to 123.5 sq m. ( 1,330 sq.ft.) plus 4 mail: [email protected] AF Smyth & Company, Solicitors, 21 proceed with the application before car spaces. E34,600 p.a. plus Clare Street, Dublin 2, tel: 01 662 the county registrar at the end of 21 service charges/rates. Long-established varied practice, 7780, fax: 01 662 9059 – reference days from the date of this notice and TEL: BERCON HOLDINGS, central Dublin. For particulars, con- AFS/NF will apply to the county registrar for 01-496 4053. tact Mr Charles Russell, 6 Hyde Park, the county/city of Dublin for direc- Dalkey; tel: 01 285 0637 In the matter of the Landlord and tions as may be appropriate on the Tenant Acts, 1967-1994 and in the basis that the person or persons bene- Tipperary practice for sale – great matter of the Landlord and Tenant ficially entitled to the superior inter- TO LET potential. Quick sale required – prin- (Ground Rents) (No 2) Act, 1978 est including the freehold reversion in cipal retiring. Applications to box no and in the matter of premises con- the aforesaid premises are unknown 23/04 stituting part of the lands of or unascertained. Goldenbridge situate at Thomas Date: 5 March 2004 Opportunity arises in legal costs Davis Street, Inchicore, in the Signed: Peter Gartland & Company accountancy – one-year course for parish of St Jude and City of (solicitors for the applicant), 56 Lower sale in legal costs accountancy at Dublin: an application by Logcraft Dorset Street, Dublin 1 €10,000, which also provides a share Limited At Puerto Banus, Marbella, in long-established practice and €200 Ta ke notice that any person having In the matter of the Landlord and Lorcrimar. Fase III. New luxury 3 wage per week while learning, with any interest in the freehold estate of Tenant Acts, 1967-1994 and in the bed, 2 bath, Dub solr owned special provision for recouping or superior interest in the following matter of the Landlord and Tenant penthouse, all mod cons, air investment should course prove premises: all that and those that part (Ground Rents) (No 2) Act, 1978: an con, ch, digital + digi plus TV, unsuccessful. Suitable only for ener- of the lands of Goldenbridge situate application by Daniel Byrne and v large sth facing sun terrace getic person situated in Dublin with at Thomas Davis Street, Inchicore, in Claire Kelleher suitable for b-b-cs, sun bathing permanent interest in legal work; the parish of Saint Jude and city of Ta ke notice that any person having etc., complex serviced with available now. Replies to box no Dublin held under an indenture of any interest in the freehold estate of 2 swimming pools, paddle 24/04 lease dated 28 January 1938 and the following property: 133 Pearse tennis courts, well maintained made between Mabel de Heriz Smith Street, Dublin 2, more particularly gardens, private underground described along with other property carpark, adj to beach, port, Nerja – bright spacious apt/bunga- of the first part, Herbert Lewis Scott restaurants, golf etc. very low with sun all day, overlooking of the second part, Charles Monk in an indenture of lease dated 26 central. Burriana beach. Sleeps six. Two bal- Gibbon of the third part, Janet Marie August 1871 and made between Sir Tel. 0862549431 conies with wonderful sea views, Scott, Kathleen B Scott and Robert A William Carroll of the one part and small garden, pool and three minutes Scott of the fourth part and May Mary McGarry, Letita McGarry,

55 Law Society Gazette March 2004 Professional information

Publication of advertisements in this section is on a fee basis and does not In the matter of the Landlord and represent an endorsement by the Law Society of Ireland. Tenant Acts, 1967-1994 and in the matter of the Landlord and Tenant (Ground Rents) (No 2) Act, LAW AGENCY SERVICES 1978: an application by Jeremiah ENGLAND & W ALES NORTHERN O’Reilly, Bernard McNamara, IRELAND Corehill Limited and Inch Beg SOLICITORS Limited SOLICITORS Notice to any persons having an Established 1825 We will engage in, interest in the freehold estate in the and advise on, following property described in an all Northern Ireland- indenture of a lease dated 7 August related matters, 1941 between Amy Carter of the one particularly personal injury part and the Dock Milling Company litigation. Limited of the second part: ‘All that Consultations where and those the piece or plot of ground •Fearon & C o act for Irish residents in the fields of convenient. or garden annexed to and adjoining probate, property and litigation the dwelling house and premises • Each solicitor is available by direct line, fax or e-mail. known as the Foreman’s House Conferences can be easily arranged OLIVER M being part of the premises belonging •Fearon & C o is committed to the use of information to the lessor wherein she carries on technology to help improve both the quality and LOUGHRAN the business of a maltster under the speed of service for the benefits of all clients both at style of William Carter & Son situate home and abroad & COMPANY at Barrow Street in the city of Dublin • The firm’s offices are within half an hour of London 9 HOLMVIEW TERRACE, containing in front to Barrow Street W aterloo station and within a short travel from both OMAGH, sixteen feet two inches and in the Gatwick and Heathrow airports, with easy access from CO TYRONE rear the like number of feet and inch- the London orbital M25 motorway Phone (004428) 8224 1530 es and in depth from front to rere Fax: (004428) 8224 9865 fifty-two feet six inches be the said PHONE NOW FOR A BROCHURE e-mail: several admeasurements more or less W estminster House [email protected] and which said piece of plot of 12 The Broadway, Woking, Surrey GU21 5AU England Fax: +44 (0)1483 725807 ground is more particularly delineat- Email: [email protected] www.fearonlaw.com ed on the map annexed and thereon LITIGATION PROPERTY PROBATE Martin Williams John Phillips Francesca Nash Edward Fottrell, John O’Hagan and marked with the letter “G” and Tel: +44 (0)1483 776539 Tel: +44 (0)1483 747250 Tel: +44 (0)1483 765634 Reverend Walter Murphy of the edged round with a green verge line’. other part for a term of 271 years Take notice that the applicants, from 3 July 1871, subject to a yearly Jeremiah O’Reilly, Bernard F R O BE rent of IR£34.10. McNamara, Corehill Limited and M E M Take notice that Daniel Byrne Inch Beg Limited, intend to apply A and Claire Kelleher intend to submit to the county registrar for the coun-

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U an application to the county registrar ty of the city of Dublin for the

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R G for the county/city of Dublin for the acquisition of the freehold interest E IC T C acquisition of the freehold interest in in the aforesaid property and any A PR IN L TERNATIONA the aforesaid property and any party party asserting that they hold an asserting that they hold a superior interest superior to the applicants in interest in the aforesaid property are SPANISH LAWYERS the aforesaid property (or any of called upon to furnish evidence of them) are called upon to furnish evi- title to the aforementioned property dence of title to same to the below RAFAEL BERDAGUER to the below named within 21 days named solicitors within 21 days ABOGADOS of the date of this notice. from the date of this notice. In default of any such notice In default of any such notice PROFILE: FIELD OF PRACTICES: being received, Daniel Byrne and being received, the applicants panish Lawyers Firm focussed eneral Practice, Administra- Claire Kelliher intend to proceed intend to proceed with the applica- Son serving the need of the for- Gtive Law, Civil and Commercial eign investors, whether in compa- Law, Company Law, Banking and with the application before the tion before the county registrar at ny or property transactions and all Foreign Investments in Spain, county registrar at the end of 21 the end of 21 days from the date of attendant legalities such as ques- Arbitration, Taxation, Family Law, days from the date of this notice and this notice and will apply to the tions of immigration-naturalisa- International Law, Immigration will apply to the county registrar for county registrar for the county of tion, inheritance, taxation, and Naturalisation, Litigation in all the county/city of Dublin for direc- the city of Dublin for directions as accounting and bookkeeping, Courts. tions as may be appropriate on the may be appropriate on the basis that planning, land use and litigation in basis that the person or persons ben- the person or persons beneficially all Courts. eficially entitled to the superior entitled to the superior interest interest including the freehold including the freehold reversion in Avda. Ricardo Soriano, 29, reversion in the property aforesaid Edificio Azahara Oficinas, 4 Planta, 29600 Marbella, Malaga, Spain the premises are unknown or are unknown or unascertained. unascertained. Tel: 00-34-952823085 Fax: 00-34-952824246 Date: 5 March 2004 Date: 5 March 2004 e-mail: [email protected] Signed: Partners at Law (solicitors for Signed: William Fry FPD (solicitors Web site: www.berdaguerabogados.com the applicant), 8 Adelaide Street, Dun for the applicant), Fitzwilton House, Laoghaire, Co Dublin Wilton Place, Dublin 2

56 Law Society Gazette March 2004