Contents GazetteLawSociety

Regulars Cover Story Reflections of an attorney general News 4 10 Some people think that Michael McDowell is the most political attorney general this country has ever had. His Letters 9 supposed ‘meddling’ was even the subject of a recent Dáil debate. So is McDowell ready to change his outspoken Tech trends 24 ways? Two chances, he tells Conal O’Boyle Briefing 26

Council report 26 Practice notes 26 Committee reports 29 Legislation update 32 Whispering grass Personal injury 14 The Competition Authority wants to introduce an immunity pro- judgments 34 gramme that will allow individual cartel members to co-operate with investigations in exchange for a guarantee against prosecution. But, as FirstLaw update 37 Barry O’Halloran explains, there are legal and practical issues that Eurlegal 41 must be cleared up first

People and places 47 The sky’s the limit Anyone who keeps a cool head when his Apprentices’ page 51 16 plane is on a crash-course with a fuel Professional bunker should have no problem piloting information 53 the Law Society. New president Ward McEllin talks to Conal O’Boyle about

COVER PHOTO: [email protected]. his career, his vision for the year ahead and why he enjoys a good fight

On the never-never 20 What good is consumer legislation if it’s well nigh impossible to understand? Keith McConnell explains that the Consumer Credit Act, 1995 is guaranteed to give most consumers – and many lawyers – a headache, particularly when it comes to hire purchase agree- ments

Editor: Conal O’Boyle MA. Assistant Editor: Maria Behan. Designer: Nuala Redmond. Editorial Secretaries: Catherine Kearney, Louise Rose. Advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9, tel/fax: 837 5018, mobile: 086 8117116, e-mail: [email protected]. Printing: Turners Printing Company Ltd, Longford. Editorial Board: Pat Igoe (Chairman), Conal O’Boyle (Secretary), Mary Keane, Ken Murphy, Dr Eamonn Hall, Michael V O’Mahony, Michael Peart, 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 4801. Volume 94, number 10 E-mail: [email protected] Law Society website: www.lawsociety.ie Subscriptions: £45

1 Law Society Gazette December 2000 Barristers or Solicitors required for positions as Assistant Parliamentary Counsel (Grades I and II) Office of the Attorney General

Parliamentary Counsel are employed in the Office of the Parliamentary Counsel to Government. The Office, former- ly called the Office of the Parliamentary Draftsman, is a constituent part of the Office of the Attorney General. As an Assistant Parliamentary Counsel you will be part of a specialised team of lawyers who: u draft Government Bills, including Bills to amend the Constitution, and amendments to Bills. u draft statute law revision, consolidation and restate- ment Bills. u draft Government statutory instruments and most statutory instruments made by Ministers. Applicants must: u have been called to the Bar or have been admitted and be enrolled as a solicitor in the State. u since qualifying have practised for at least four years for Grade II positions and seven years in the case of Grade I. (Experience in certain whole time legal posi- tions in the Civil Service may be acceptable as prac- tice as a practising barrister or solicitor in the State). Salary Scale (full PRSI): Assistant Parliamentary Counsel (Grade I): £49,237 - £60,721 Assistant Parliamentary Counsel (Grade II):£37,878 - £48,676 Closing date: 21st December, 2000 Applications must be made on the official application form. No application forms will issue by post on foot of requests received on the closing date. Cuirfear fáilte roimh chomhfhreagras i nGaeilge

For application forms and further details please contact: THE OFFICE OF THE CIVIL SERVICE & LOCAL APPOINTMENTS COMMISSIONERS 1 Lower Grand Canal Street, Dublin 2. Telephone Number: (01) 6615611 LoCall 1890 449999 Details and application forms are also available on our website www.irl- gov.ie/csclac The Commissioners are committed to a policy of equal opportunity. Survey Law Society Gazette Reader Survey 2000

Your views can help us make the Gazette more relevant to you, so please take a few moments to complete this short reader survey. In return for your help, we’ll enter your name in a prize draw, and the first five names out of the hat will win a bottle of the Law Society’s specially- commissioned Millennium Malt whiskey

he winner will be announced in the January/February issue. 5 What would you like to see more of? The results of the survey (and your personal details) will not T be used for any other purpose than improving the magazine and will not be divulged to any third party. If you wish to be entered for the prize draw, please ensure that you give your name and address below. 6 What would you like to see less of?

Name:

Address: 7 Please indicate to what extent you agree with the following statements about the Gazette? (Please tick one box per statement) 1 How long have you been practising? STRONGLY AGREE AGREE NO OPINION DISAGREE One to five years Informative Five to ten years Interesting and Ten to 15 years enjoyable read 15 to 20 years Well presented Over 20 years and laid out Keeps me updated 2 How often do you read the Gazette? on legal developments Each issue and legislation Every second issue Good balance between Once every three months technical and lighter material Less often Relevant to my work Never 8 How well does the Gazette cover the following topics? 3 Please indicate how often you read each of the sections VERY WELL GOOD ADEQUATELY POOR listed below Irish legal developments (Please tick one box for each topic) European legal developments ALMOST ALWAYS OCCASIONALLY RARELY NEVER Feature articles on the law President’s message Information technology News Business and management Viewpoint information Letters Dumb and dumber 9 Please suggest three topics on which you would like to Feature articles see an article in the Gazette Book reviews Tech trends 1. Briefing 2. People and places 3. Apprentices’ page Professional information 10 Overall, how would you rate the Gazette? Cross-examination Excellent Very Good 4 In order of priority, what do you want from the Gazette? Good Average Fair Poor

Thank you for completing this survey. Please return (a photocopy will do) by 31 January 2001 to: the Editor, Law Society Gazette, Blackhall Place, Dublin 7 (fax: 01 672 4801).

3 Law Society Gazette December 2000 News

LEGAL HISTORY SOCIETY BURSARY New officer team for the Law Society Margaret Clayton of UCC’s history department has received he Law Society has a new Name Votes As there was only one candidate the first Irish Legal History TCouncil and officer team, 1. John P Shaw 1,453 nominated for each of the two Society bursary in recognition of with Mayo man Ward McEllin 2. Anne Colley 1,452 relevant provinces, there was no her on-going work in taking up the reins of office for 3. Keenan Johnson 1,435 election and the two candidates transcribing and preparing for the next year. McEllin was 4. Michael D Peart 1,425 for these seats were returned publication the Munster Council deemed elected to the post 5. Gerard F Griffin 1,408 unopposed as follows: Book, a manuscript housed in after serving as senior vice- 6. Donald P Binchy 1,392 Leinster: John B Harte, the British Library in London. president last year, while Elma 7. Elma Lynch 1,361 Ulster: James Sweeney. The bursary is worth £1,000 Lynch was elected senior vice- 8. Patrick O’Connor 1,361 Council members are elected and has been established to president, with Michael Irvine 9. Simon Murphy 1,346 for two-year terms: the sitting assist scholars undertaking as junior vice-president. 10. Philip M Joyce 1,331 Council members who were research into any aspect of Irish The following members 11. James MacGuill 1,310 deemed elected last year are: legal history by providing a were elected to the Law 12. Orla Coyne 1,309 Anthony Ensor, Geraldine grant towards travel or other Society Council in the recent 13. John G Fish 1,274 Clarke, Brian Sheridan, Owen costs involved in the completion ballot, with the number of 14. James B McCourt 1,265 Binchy, John D Shaw, Laurence of work. Further details may be votes received appearing after 15. Michael G Irvine 1,224 Shields, Moya Quinlan, Gerard obtained by contacting their names: 16. Edward C Hughes 1,153 Doherty, Kevin O’Higgins, Professor Nial Osborough, New president Ward McEllin (centre) with senior vice-president John Costello, Hugh O’Neill, Faculty of Law, UCD, Belfield, Elma Lynch and junior vice-president Michael Irvine Peter Allen, Thomas Murran Dublin 4, tel: 01 269 3244. and Stuart Gilhooly.

2ND AND 3RD PROFESSIONAL LawSociety COURSE REUNION A class reunion has been Gazette organised for apprentices who were on the 2nd and 3rd Christmas professional course (in publication 1979/80). The reunion will be As usual, the Gazette will be held in Blackhall Place on 15 taking a well-earned break February 2001. Anyone over the Christmas period so interested in attending should there will be no issue in send £40 to Patricia January. Normal publication will resume with a joint McNamara, 60 Upper Grand January/February issue, Canal Street, Dublin 4, before due out in early February. 21 December to confirm a booking. ONE TO WATCH: NEW LEGISLATION

Statute of Limitations they realised that they were 2000 extends the definition of chance to institute proceedings (Amendment) Act, 2000 suffering from a ‘disability’ ‘disability’(in past, present and for a limited period of one year The Statute of Limitations (section 2) or stopped suffering future cases) to include from June 2000. (Amendment) Act, 2000 was from a disability. This opened up psychological disability disabling These are the key elements, signed into law on 21 June the possibility that child sexual the victim from taking in brief: 2000. This is a significant date abuse victims could initiate proceedings. • The sexual abuse was because aspects of the act are actions within three years of Secondly, this new act gives a committed when the person only functional for one year from realising that their injuries limited class of victims of sexual had not yet reached full age that date. resulted from the abuse they abuse who were not under a (21 or 18) Under the Statute of had suffered. The Statute of psychological disability, and were • The cause of action can lie Limitations (Amendment) Act, Limitations (Amendment) Act, therefore statute-barred, a against the person who 1991, many victims of child committed the abuse, or sexual abuse were unable to against a person for take proceedings for personal WHAT’S IT ALL ABOUT? negligence or breach of duty injuries because they missed the ‘An act to provide that certain persons shall be under a disability resulting in personal injuries three-year deadline that began for the purpose of bringing actions relating to acts of sexual abuse arising from sexual abuse when they reached the age of committed against them prior to their reaching full age, for that • The abuse or abuser must 18. But that act also said that purpose to amend the Statute of Limitations, 1957, and to provide have caused a psychological victims could take an action for matters connected therewith’. injury within three years of the time • The psychological injury was

4 Law Society Gazette December 2000 News

Complaints handling gets thumbs up SECOND ECHR CONFERENCE The Law Society will hold a from independent adjudicator second major conference on the European convention on he Law Society’s human rights once the Tcomplaints-handling implementing legislation has procedures are ‘well ahead of been published. The provisional its counterparts in date is 10 February 2001 at neighbouring jurisdictions’, the Law Society’s Education according to independent Centre. It also intends to run a adjudicator Eamonn Condon. comprehensive training Speaking at a recent programme dealing with the seminar in Blackhall Place to impact of the ECHR on the explain the society’s specific areas of environment, complaints system to planning and property, family consumer groups and other law, judicial review, interested parties, Condon administrative law, commercial said: ‘There’s no doubt in my law and employment. The mind that the Law Society society is anxious to assess does a very fine job’. While the demand from the profession acknowledging that the society for courses and would be had greatly improved the Director General Ken Murphy (far right) with speakers at the recent grateful if practitioners could resources available to the Law Society seminar on complaints handling indicate their areas of interest complaints section and in a note to Barbara Joyce, CLE introduced state-of-the-art refer that complaint to his own experience had been ‘very co-ordinator, Law Society, technology, he added it had office, Condon said: ‘This fulfilling and satisfying’, adding Blackhall Place, Dublin 7. ‘an on-going responsibility to amounts to Chinese water- that ‘most decent solicitors find Meanwhile, papers from the use its influence to inform the torture for solicitors’. themselves embarrassed and ECHR conference held on 14 public about their right to Earlier, Maureen Behan, a apologetic to find themselves in October are available on the complain’. lay member on the Registrar’s front of the committee’. Law Society website. He concluded by saying Committee, told the seminar Other speakers included the that there was one aspect that that herself and her lay head of the society’s complaints LAW SOCIETY RETIREMENT he was ‘not too comfortable colleagues saw their role on the section, Linda Kirwan, TRUST SCHEME with’. Noting that committee as ‘looking after the investigating accountant Tim Unit prices: 1 November 2000 complainants had five years to public interest and ensuring Bolger and the clerk of the Managed fund: 384.015p complain to the Law Society that the public gets a fair Disciplinary Tribunal, Mary All-equity fund: 118.232p and a further three years to hearing’. She added that their Lynch. Cash fund: 181.446p Pension protector fund: -

so serious that the victim’s advised that the case was • The court retains its power to the terms of the legislation, they will or ability to decide to bring statute-barred – or made a dismiss on grounds of delay in should be notified immediately. It an action was substantially complaint to the gardaí – after the interests of justice. is a limited window. impaired the previous limitation period, Practitioners should exercise • This act is retrospective and and before 30 March 2000. Physical and mental abuse are caution about destroying papers applies to causes of action Only cases in which the not included in the terms of the relating to this kind of case. before or after it was passed, victims had already sought 2000 act, but it will doubtless Difficulties may arise in showing including actions pending in advice or complained to the be persuasively argued that that cases come within the June 2000 gardaí are included in the much physical and mental abuse exception, as old files may have • It extends the definition of exemption is latently sexual. been destroyed, and many disability to include • This act does not include Victim support groups will be complaints to the gardaí did not psychological injury, as cases in which final judgment aware of the significance of the generate a file as such, and defined, for the future has already been given legislation and will advise their often were not even reduced to • It allows actions to be brought • Sexual abuse is widely members. Solicitors (and writing. Particular instructions as within one year of its date of defined and includes barristers) practising in this area to all the surrounding circum- passing (21 June 2000) which participation in sexual activity, should review previous cases of stances of either ‘advice’ or otherwise could not be causing the observation of this kind in which they have been ‘complaints’ should be taken. G brought (being statute-barred), sexual activity or what would consulted and which may have provided that the victim reasonably be considered been previously statute-barred. If Alma Clissmann, parliamentary sought legal advice and was misconduct of a sexual nature any clients could qualify under and law reform executive.

5 Law Society Gazette December 2000 Are you using the right account- ing and practice management package?

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Murphy ‘sick and tired’ of SFA attacks GET YOUR NUMBERS RIGHT A beleaguered Dublin retailer aw Society Director ‘According to Health and is receiving a number of calls LGeneral Ken Murphy went Safety Authority statistics the for the Law Society because head to head with the chairman number of workplace accidents Eircom has assigned it the of the Small Firms Association, resulting in three or more days old Law School telephone Kieran Crowley, twice in the off work over the last three number of 671 0200. The new same day on national radio years has increased by more number for the Law School is following Crowley’s criticism than 30%. In just two years, 01 672 4802. of the role that solicitors play from 1996 to 1998, the number in the so-called ‘compensation of fatal workplace accidents AND THE WINNERS ARE ... culture’. First on RTÉ Radio’s increased by a shocking 18%. CARLOW AND KILKENNY News at One and subsequently Mr Crowley should get his According to a recent Dáil on Eamon Dunphy’s The Last Ken Murphy: ‘Don’t shoot the members to put their own reply, the average number of Word programme on Today messenger’ houses in order. The accidents weeks spent waiting for the FM, Murphy vehemently are not caused by solicitors, and processing of a Land Registry rejected Crowley’s criticism of the judiciary to be accountable to attack them is to try to shoot dealing in September 2000 are the role of solicitors in the for what he claimed were the the messenger’. as follows: Carlow: 123, personal injury litigation excessive number and cost of Cavan: 60, Clare: 75, Cork: 59, system. claims in Ireland. Murphy Donegal: 61, Dublin: 49, ‘I’m sick and tired of people acknowledged that the system CHIEF JUSTICE Galway: 61, Kerry: 49, Kildare: trying to make scapegoats of was not perfect but refuted 57, Kilkenny: 123, Laois: 84, solicitors to avoid responsib- proposals for the replacement of LIAM HAMILTON Leitrim: 61, Limerick: 49, ility for their own failures’, the courts by tribunals on the Longford: 61, Louth: 60, Mayo: Murphy said. ‘If there were no basis that they would actually 89, Meath: 75, Monaghan: 60, accidents, there would be no increase both costs and delays by Offaly: 84, Roscommon: 75, claims and solicitors should not adding another layer to the Sligo: 89, and Tipperary: 84. be criticised simply for doing system. their job of ensuring that the ‘The real problem in Ireland NEW CHARGES FOR victims of negligently-caused is not the level of claims but the CONSULTATION ROOMS accidents receive the level of accidents resulting from Due to increased costs and the compensation to which they the disgracefully low standards significantly improved quality are entitled by law’. of health, safety and care for of the Four Courts consultation Crowley had earlier others which we in Ireland rooms (including the addition criticised the manner in which tolerate. It is not a compensation Reacting to news of the of a catering service), the Law solicitors pursued claims and culture. It is a negligence sudden death of former Chief Society is increasing usage called on the profession and on culture’, he continued. Justice Liam Hamilton, Law rates for the first time since Society President Ward McEllin January 1997. The new rates issued the following statement. are: Society ‘unconvinced’ by AG ‘On behalf of the solicitors’ • £25 for one hour or part he Law Society has rejected the candidates, not on whether profession in Ireland, I want to thereof Tthe arguments put forward they come from one branch of express our great sadness and • £35 for one to two hours or by Attorney General Michael the legal profession rather than sense of loss at the untimely part thereof McDowell for excluding the other – is the only position passing of former Chief Justice • £110 for a full day. solicitors from positions as which in the society’s view truly Liam Hamilton. legal assistants in his office as represents the public interest’. ‘He had very close dealings PRIZE BOND DRAW 8 ‘unconvincing’ (the exchange of For his part, in an interview with the solicitors’ profession NOVEMBER 2000 correspondence was published with the Gazette this month, both as president of the High The winners of the Law in full in the last issue of the McDowell appeared to be Court and subsequently as Society’s prize bond draw held Gazette, pages 6-7). mending fences. ‘I would hate chief justice. His warmth and on 8 November were: In his latest letter to for this particular controversy approachability made him Marcus Beresford, Dublin – McDowell, Director General to suggest that I was greatly liked and admired by £1,000. Niall McLaughlin, Ken Murphy says that the Law antagonistic towards the Law solicitors throughout his Dublin; WR White, Co Laois; Society Council believes that Society’, he days. ‘I think that outstandingly successful legal The Trustees, Society of Young the AG’s position ‘is not in the vast majority of things career. Solicitors; Maurice MA Power, defensible on any grounds of that it says and does, it’s right. I ‘We send our deepest Limerick – £500 each. Donal principle’. And he continued: just disagree with it on one condolences to his wife Kelliher, Co Kerry; John ‘The society’s principled point’. Maeve, his children, his O’Connor, C/O DSBA; Eunan position that all public service extended family and his McMullin, Donegal; Michael lawyer positions should be (The full interview appears on friends’. Browne, Mayo; WO Fry, Dublin; awarded only on the merits of page 10) Hugh J O’Donnell, Dublin – £250 each.

7 Law Society Gazette December 2000 Annual Conference 2001 MONACO 26-29 April, 2001

If you are thinking of attending the confer - ADVANCE BOOKING FORM ence, avoid disappointment and book now. Advance bookings can be made by forwarding Name: a booking fee of £300 per person travelling Firm: to Mary Kinsella, Law Society, Address: Blackhall Place, Dublin 7. (Tel: (01) 672 4823. Fax: (01) 672 Tel: Fax: 4833 Email: D X : Year of admission to the Roll: Travel options will be available to delegates Names of persons travelling: who would like to travel to Monaco in advance I enclose cheque in the sum of £ of the conference or stay on afterwards. representing booking fee for persons. Note: THE CONFERENCE WILL BE HELD TWO WEEKS AFTER EASTER (EASTER SUNDAY 2001 IS ON 15 APRIL) Letters Letters

New stamp duty Courting information arrangements – again on the courts From: Pierce O’Sullivan, Pierce contract if executed on or From: Dáithí Mac Cárthaigh, officials of the Supreme, O’Sullivan & Associates, Co before 31 January 2000’. Law Library, Four Courts, Circuit and various district and Cavan Shouldn’t that read 2001? Dublin parish courts. refer to my correspondence PS: I have to thank a o commemorate and I would be grateful if Ito the Gazette published in colleague this Tcelebrate the pioneering anyone in possession of such the October issue (page 7) and time for work of the Dáil Courts likenesses could forward them the clarification in the pointing (1920-24), I propose to collect to me along with a short November issue (page 9). It this out and publish the likenesses of biographical note including seems that the gremlins are to me! the judges and justices, details of the individual’s Dáil certainly at work in relation to registrars, clerks and other Court service. this matter. The end of the ‘clarification’ from Ms O’Riordan refers to ‘the instrument giving effect to the Limboing under the statute bar Dogged by errors From: Patrick Mann, Patrick that should be addressed Mann & Co, Tralee, Co Kerry without delay, I believe it is From: TJ O’Donoghue, law agent, the Control of Dogs Act of 1995. he recent annual report of incumbent on the Law Society Galway County Council This should have read the Tthe Solicitors’ Mutual to immediately design a would like to refer to a Control of Dogs Act, 1986. I am Defence Fund Limited stated package to help solicitors deal Imisprint in the Personal injury writing this letter in case any that the permitting by solicitors with the problem of cases judgments report on page 38 of other solicitor like myself of claims to go statute-barred becoming statute-barred, the July issue of the Gazette. might spend an hour or two was a matter that concerned regardless of whether or not The case entitled Leahy v Leader trying to find the law behind the fund greatly. Having they are practices that are and Cork Diocesan Trustees cites this particular judgment. considered that this is a matter computerised. DUMB AND DUMBER From: John Keaney, BCM Hanby users might not see the letter recently received at these ‘The purpose of the loan facility is Wallace, Dublin obstruction in time, the priest offices from the Irish Permanent to finance dairy hygiene, and to his is a true story as related decided to telephone the police takes this to a new level: purchase additional cows, which Tto me by a priest from Cork when he returned home to inform are to be exclusively utilised for (but not the priest involved in the them of the hazard. ‘Dear Sirs, purposes in connection with your story). ‘And what do you expect me to Please place with deeds blah, trade, profession or business and In a small town in Cork, the do about it?’, said the blah, blah’ not for any personal use’. local parish priest and the police superintendent. ‘Isn’t it your duty superintendent were always at to bury the dead?’ I could say more, but res ipso John Keaney wins the bottle of loggerheads with one another ‘Well, yes’, replied the priest, loquitor. champagne this month. over the high-handed way in which ‘but isn’t it also my sad duty to the superintendent dealt with the inform the next of kin?’ From Dolph McGrath, John Shee Send your examples of the wacky, townsfolk. & Co, Clonmel, Co Tipperary weird and wonderful to the Editor, In the early hours one morning, From: Aiden D Desmond, Daly, enclose an extract from a letter Law Society Gazette, Blackhall the priest was driving home after Derham & Co, Dublin Iof loan offer which a farmer Place, Dublin 7, or you can fax us visiting a sick parishioner when hile it is true that word- client of mine received from his on 01 672 4801 or e-mail us at he had to swerve his car violently Wprocessors and the like have bank. I have deleted all [email protected]. to avoid what turned out to be a made the task of drafting form references to my client from the As always, the best entry will win a bottle of the finest champagne dead donkey lying in the middle letters somewhat easier in recent enclosed extract as I feel the that monopoly money can buy. of the road. Fearing other road years, the enclosed copy of a innuendo is clearly libellous.

9 Law Society Gazette December 2000 Cover story ReflectReflect anan attorneattorne

Some people believe that Michael McDowell is the most political attorney general this country’s ever had. His supposed ‘meddling’ has even been the subject of a recent Dáil debate. So is McDowell suitably chastened and ready to change his outspoken ways? Two chances, he tells Conal O’Boyle

ne of the greatest myths about last general election would be enough to put most the AG’s office is that it is people off politics for life. McDowell returned to the somehow above politics’, says Law Library to practise at the bar and lick his attorney general Michael wounds. Now he’s back at the centre of political ‘O McDowell. ‘It’s not. Many of the action as the government’s chief legal advisor. So AGs of this country have been members of Dáil which life does he prefer? Éireann, and if you check back over the Dáil record, ‘Just like Edith Piaf’, he says. ‘I regret nothing. I’ve they gave as good as they got and took lumps out of enjoyed all my periods in public life and have found it their opponents on a daily basis. That was the way very rewarding. It was a great privilege to be elected the world worked’. to represent people in Dáil Éireann. It’s an equal Anyone looking for a sign of repentance from privilege to be made attorney general, and I’m very McDowell over what some regard as his grateful to the government for that. I’ve always ‘interference’ in the political process had better look worked hard at whichever activity I was engaged in. I elsewhere. In recent weeks, he has come under think if you do work hard, you find it very enjoyable stinging criticism from political opponents, with the and very rewarding’. Labour Party’s Brendan Howlin even tabling a Dáil It was, he adds, a job that he would gladly have motion on the issue. But McDowell’s response is accepted at any time if it had been offered to him. ‘I simple. ‘It’s water off a duck’s back. It bears no think if you speak to any former AG, they’ll always relation to history or the practice of law. say that it’s a uniquely privileged role to be asked to ‘I think Mr Howlin was out of his depth’, he discharge. It’s a constitutional job, it’s a political job, adds. it’s a legal job, and it’s a tremendous mixture of roles’. Yet the only logical conclusion one can draw from One of the drawbacks of being an outspoken his much-publicised blueprint to relaunch the politician, of course, particularly when you’re in Progressive Democrats as a new ‘Radical Party’ opposition, is that you tend to leave behind you a (with himself as president) is that McDowell has number of hostages to fortune in the form of public never lost the political bug. ‘Politics’, he admits, ‘is a statements. In McDowell’s case, one could think of his great vocation. Sometimes I miss it and sometimes I persuasive calls to change the laws of defamation. don’t. There’s a lot of heartbreak to it as well’. Characteristically, he doesn’t believe that this in any And he should know. The ten-day long recount way ties his hands now that they’re on the levers of which eventually saw him lose his Dáil seat in the power.

10 Law Society Gazette December 2000 Cover story tionstions ofof eyey generalgeneral

11 Law Society Gazette December 2000 Cover story

‘Any AG who has practised law for 25 years or so itself as some new form of secular priesthood, set would have strong views one way or the other on apart from the rest of the wider community. ‘I am things such as defamation law’, he argues. ‘The fact not attracted to that notion at all’, he explains. ‘One that one may or may not have stated them in public of the points I made – and over which I stand – is doesn’t take away from one’s capacity to act as that the brave new world into which the United attorney general. If you had no views at all, I don’t Kingdom is emerging, blinking a bit in the sunlight, think you’d be much use as an AG because your is different to the Irish situation. I don’t mean in any advice wouldn’t be worth much to a government’. way to disparage the significance of what is happening in Britain or the significance of the Steam coming out of his ears incorporation of the convention here, but we are the On that basis, McDowell must be very useful indeed. only republic in Europe with a fully enforceable He certainly doesn’t seem to find it frustrating that vertical and horizontal constitution. This is a very government policies might not follow those he hard point to get across to our European partners. advocated for so long from the backbenches. ‘I have a ‘We have nothing to be afraid of on the human huge amount of work to do in this office and I find it rights front. We have been living by standards that interesting to see the pace at which things take place’, other people haven’t been living by for a long, long he says, ‘but I don’t sit here with steam coming out of time. Other countries that claim to be at the my ears wondering why politicians who were elected forefront of European civilisation have not afforded at an election where I wasn’t are not doing things their citizens the same degree of protection that we that I would have done had I been elected. I think have had since the 1937 constitution came into that that would be arrogant’. effect’. Before the Father Brendan Smith affair eventually Despite this obvious admiration for our legal toppled a government in mid-1994, the Office of the system, the attorney general is not blind to its Attorney General, as opposed to the holder of that shortcomings. ‘I think court procedure and the office, had not really impinged too much on the administration of the courts are areas that need public consciousness. McDowell likens the role to radical change but, funnily enough, I’m not in a that of a family solicitor: ‘His job is to give legal life position to do much about them’, he says. to what the government wants to do’. He singles out ‘trial by ambush’ as one area of If that is the case, then the family solicitor is just litigation that could benefit from a fresh approach, about to lose some core business. and also judicial time management. ‘People have to For one thing, the National Treasury Management wait a very long time for their cases to come up and Agency will be taking over all personal injury actions then, on the morning of the hearing, with all the claims against the state, a function that is currently parties there, they can be told that it can’t go on for carried out by the AG’s office. Then there is the some technical reason or because no judge is proposal that the criminal section of the Chief State available to hear it. I think that is terrible – and very, Solicitor’s Office should be transferred under the very hard to justify’. direct control of the Director of Public Prosecutions. It’s more of an injustice, he adds, because in a However, McDowell is not one bit worried that the great many cases such a delay works to the authority of his office may be whittled away. advantage of one party to the proceedings at the ‘This office has so much to do that it’s not clasping expense of the other. ‘I am not saying anything work to its chest’, he says. ‘I’m quite happy to see controversial’ he explains, ‘because nobody involved work done efficiently. If the constitution provides for in the system, least of all the judiciary who have to the prosecution of crime to be done by either the AG administer it, consider it desirable that a year can or by another office-holder, it’s certainly no elapse between, say, somebody being charged and diminution of the AG’s status if the legal support sent forward for trial and the case actually being agency for criminal prosecution is transferred to the heard. I think that is wholly unacceptable. Mind you, DPP. That just makes sense’. just in case people think we’re particularly bad about The creation of a new Human Rights Commission this, I was at a conference in Spain recently where a is likely to lead to another major change to the state’s continental judge said he was pleased to inform us legal architecture in the coming years. This that, between the institution of proceedings and independent body will be charged with upholding their final ending, the process was usually all human rights in every aspect of Irish life, and there accomplished within five years!’ may well be situations where the commission could But one area where he is not inclined to propose institute proceedings against state agencies. any change is in the exclusion of solicitors from McDowell describes this as ‘an interesting appointment as legal assistants in his own office. In development’, but adds: ‘whether it will be up and recent weeks, McDowell and the Law Society’s running and really into its stride by the time I cease director general Ken Murphy have been engaged in to be attorney general is another thing’. a war of words over the issue (see last issue, page 6). At a recent Law Society conference on the McDowell may have had the reputation as a radical European convention on human rights, McDowell in politics, but in some things he is deeply appeared to some delegates to take a sceptical view of conservative, and one of these is the traditional the ‘human rights community’, suggesting that it saw division of labour between barristers and solicitors.

12 Law Society Gazette December 2000 Cover story

‘I just want to put a few things in context’, he says. the courts and know what it’s like to present a case ‘The state in its entire legal services reserves 80% of because, to some extent, armchair generals are not the positions exclusively for solicitors. Another 7%, the best at deciding the outcome of battles. the drafting service, here is open to both barristers ‘Generally speaking, barristers are required to be and solicitors, and a small fraction – 21 positions out independent of mind. I’m not suggesting that of 180-odd – are at the moment recruited from solicitors aren’t, but barristers can easily imagine barristers alone. themselves appearing on either side of a case and ‘As to the rational basis for it, this office has to that independence of mind is of great assistance in make very quick decisions on whether to override a helping me to make my mind up, particularly on barrister’s advice as to how litigation is going. The issues where there is a conflict between the interests government has to rely on those decisions, and by of the state and the private individual. extension, so do the Irish people. In the past, we ‘If you say that a barrister is in practice for several have found it of invaluable assistance that the people years and passes an interview board to get into this who make those decisions have actually practised in office, you may take it that he or she has extensive experience in litigation, extensive experience in personal research, in taking an individual view, and those qualities have been there in abundance. That is not to say that no solicitor has those qualities, but by the same token there are many barristers who would make very good state solicitors if they chose to do that. But the law would have to be changed to enable a barrister to act as a solicitor. So these are the things which require further thought’.

Tickle his tummy It certainly doesn’t look as if ‘the rottweiler’ is going to have his tummy tickled on this one. He’s also adamant that a fused profession would be bad for the consumer and would drive legal fees up rather than down, arguing that: ‘it will enable the big firms to recruit the best barristers to make themselves more powerful in terms of litigation than they are at present and to charge more – which they will inevitably do. ‘If you call me a radical’, he continues, ‘the one thing I am radical about is cant. Most people who have ever proposed a fused profession have actually been motivated by a desire to increase their own wealth. I have always noted that they are the people who actually want to earn bigger money by having more people work under them so they can take longer holidays or to relax more. That’s the point you have to remember’. Despite his staunch defence of the status quo and of the recruitment policies in his office, McDowell actually turns out to be a big fan of the solicitors’ profession and the Law Society. ‘I think that the Law Society is a really good organisation: it’s a serious self-regulating body. I feel that it is doing a tremendous job in terms of quality control, improvement of professional standards, continuing legal education, the new Education Centre in Blackhall Place and all the disciplinary functions it carries out. ‘I would hate for this particular controversy to suggest that I was antagonistic towards the Law Society. I think that in the vast majority of things that it says and does, it’s right. I just disagree with it on one point’. Only one point of disagreement with one-time rottweiler, reborn radical Michael McDowell? Stop the lights. G

13 Law Society Gazette December 2000 Competition

The Competition Authority wants to introduce an immunity programme that will allow individual cartel members to volunteer co-operation with investigations in return for a guarantee against prosecution. But, as Barry O’Halloran reports, there are legal and practical issues that must be cleared up first

Busting the price-fixers: the Competition Authority’s recent conference which examined the idea of offering immunity to aid prosecution WHISPERING rice-fixing cartels are estimated to cost Development that criminal sanctions were necessary. this country £1.5 billion directly and An EU directive, due early next year, will also deal indirectly every year. Even though it’s with the issue of imposing fines on offending been four years since the Competition Act, businesses and parties. P1996 made it a crime to participate in It follows that this means the state, or whichever of these organisations, just one company has been its agencies wants to bring cartels to book, must be convicted of an offence. able to get its hands on the necessary evidence. But as The main reason has been the Competition Pat Massey, the head of the Competition Authority’s Authority’s unwillingness to go to the criminal courts, anti-cartel division, pointed out at a recent conference as losing a case would be a set-back for the body itself on the issue, businesses that are conspiring to fix and for the laws it was seeking to enforce. However, prices are going to act strictly in secret. To combat after getting over the first hurdle by bringing a this, other jurisdictions, including the US and Canada, successful prosecution against Estuary Oil Ltd last have immunity programmes under which individual • The year, its mood has changed. It now looks like criminal cartel members come forward and volunteer to co- Competition law is going to be a key weapon in the battle against operate with investigations in return for a guarantee Authority has business practices that are damaging both consumers against prosecution. The Competition Authority is a proposed an and the economy as a whole. keen advocate of introducing such a scheme here, and immunity The Estuary Oil case was a summary prosecution went as far as making it the theme of its annual system for taken by the authority itself, but it has sent a number conference at the Radisson Hotel in Dublin last cartel of files to the director of public prosecutions, so the month. members who day when we see an Irish business prosecuted for an The US immunity programme has proved hugely voluntarily co- operate with indictable competition law offence may not be far off. successful. According to Competition Authority investigations Under the act, an undertaking convicted on chairman John Fingleton, the American anti-trust • This raises indictment is liable for a fine of up to £3 million or watchdogs believed that they had eliminated all cartels questions for 10% of turnover in the year preceding conviction, by the end of the 1980s. ‘But now they are getting 20 the statutory whichever is greater. An individual faces the new cases a year through this self-referral system’, he discretion of possibility of both monetary punishment and up to says. the DPP two years’ imprisonment. In addition, any aggrieved The authority has already launched a consultative • The scheme’s party can seek damages. process, and wants to hear from all interested parties, effectiveness Prosecution, fines and even imprisonment are including lawyers from both branches of the will depend on a number increasingly seen as the way to tackle cartels. The profession. It has also discussed the proposal with the of issues Competition and Mergers Review Group told the government and DPP Jim Hamilton, whose office

MAIN POINTS Organisation for Economic Co-operation and would have a key role in any such scheme.

14 Law Society Gazette December 2000 Competition

Indeed, it is this office that is at the heart of one It now looks deciding to grant immunity. The DPP has obviously problem thrown up by the proposals. Under sections been considering these problems himself. Briefly 2 and 3 of the Prosecution of Offences Act, 1974, which like criminal law addressing the conference before chairing one of its established his office, the DPP has the discretion in is going to be a sessions, he indicated that he was open to the immunity whether or not to prosecute offences. John Handoll, a scheme proposal. But he made it clear that his office partner with solicitors William Fry, points out that key weapon in would have to approach the question carefully, this discretion cannot be limited or ‘fettered’ in any the battle particularly in relation to his discretion. way. He stresses that the DPP must look at each ‘The difficulty is that a policy of granting immunity individual case and then decide. He believes that against in such cases may mean that you have fettered your adopting a general practice of granting immunity in business discretion’, he said. ‘But no policy may mean you will the context of a scheme such as that proposed by the act arbitrarily and that you could be acting unlawfully’. Competition Authority could be interpreted as practices that He added that it could lead to a situation where his fettering the DPP’s discretion in individual cases. In are damaging office would spend three to four years fighting a case up other words, if he has to grant immunity as a matter to the Supreme Court before the issue is finally of course, his discretion has been limited. However, both consumers decided. This would obviously mean that an immunity Handoll adds that if, in a defined area of the criminal and the programme would have to be put on hold while the law, the DPP sets out in a clear and transparent way courts deal with the issue. the circumstances in which immunity might be economy as a The DPP’s discretion and its operation would be granted, without reference to an individual case, then whole. central to the proposed immunity scheme’s success it could be argued that his discretion is not fettered. because it affects the kind of guarantees that potential participants can expect. If people cannot be certain that they will be safe from prosecution, they will not sign up. Outlining what the authority believes should be the programme’s key elements, its solicitor David McFadden stressed that potential participants should have as high a degree of certainty as possible. For instance, when the programme was originally introduced in the US, it failed because of a lack of GRASS certainty. And Damian Collins of McCann FitzGerald’s Brussels office argued that lawyers responsible for COMPETITION ACT, 1996: THE CRIMINAL PENALTIES defending alleged cartel members could not advise their clients to participate in an immunity scheme without On summary conviction: sufficient guarantees that they would not be prosecuted. • An undertaking is liable to a fine of not more than £1,500 There is another kind of certainty involved here, the • An individual is liable to a fine of not more than £1,500, or, at the court’s certainty that cartels will be caught. If they do not run discretion, up to six months’ imprisonment, or both. the risk of being detected in the first place, they are unlikely to volunteer themselves. Attorney General On conviction on indictment: Michael McDowell, who stressed he was speaking in a • An undertaking is liable to a fine of not more than £3 million or 10% of the personal capacity, pointed out that without first getting preceding year’s turnover, whichever is greater serious convictions, it would be ‘entirely self-deluding’ • An individual is liable to a fine of not more than £3 million or 10% of turnover to introduce an immunity system. The authority itself is in the preceding year, whichever is greater; or, at the court’s discretion, up to aware of this and, like the corporate enforcer’s office two years’ imprisonment; or both the prison sentence and fine. (now being established by civil servant Brian Appleby while the legislation is going through the Oireachtas), it Note: Under the act, the minister for enterprise, trade and employment or the would like to see a number of gardaí with experience of Competition Authority may bring summary proceedings. The gardaí and the DPP white-collar crime seconded to its staff. may also do so, but the legislation does not specifically provide for this. Only the The Competition Authority has other staffing issues DPP may issue proceedings on indictment. as well. A number of departures over the last year have left it below its full complement of 29, but it is now on the way to replacing these people. A recent Deloitte ‘If people are not looking for 100% certainty, then and Touche report recommended that the staff he should be able give them sufficient comfort that number be increased to 44. Whether or not this will way’, he says. ‘The ideal solution would be happen remains to be seen, but Enterprise, Trade and legislation’. Employment Minister Mary Harney (whose At the recent conference, Handoll, a competition department is responsible for the authority) has practitioner, pointed out in the course of his address pledged that any resources it requires will be that the DPP would have to consider the issue of delivered. She and the authority’s chairman, John guilt and supporting evidence before deciding Fingleton, are due to meet to discuss this issue in the whether or not to grant immunity. In effect, he said, near future. G this means that he would have to establish a prima facie case and determine whether or not this was Barry O’Halloran is a staff reporter with Business and backed by credible supporting evidence before Finance magazine.

15 Law Society Gazette December 2000 News analysis

THE the

veryone loves the idea of making their mark on history, but so few ever get the chance. Some do it by running the first four-minute mile; others by beating the Erest to the top of Mount Everest. And Ward McEllin? He was the first man to crash an aeroplane at Knock Airport. It was St Valentine’s Day in 1986 and the man who is now president of the Law Society was training for his pilot’s licence with an instructor at the newly- opened airport. ‘We were doing touch and goes’, he

16 Law Society Gazette December 2000 News analysis

Anyone who can keep a cool head while his plane is on a crash course with a fuel bunker should have no problem piloting the Law Society for the next year. Here, new president Ward McEllin talks to Conal O’Boyle about his career, his vision for the year and why SKY’S he enjoys a LIMIT good fight

recalls, ‘which is basically taking off and landing extra mile for his clients by testing out Knock’s fire again, when we were hit by a very bad squall. The services. And did the experience put him off flying? plane was literally thrown over and we couldn’t Not a bit of it. recover it. We were blown off the runway and the ‘Some people go fishing to get away from it all’, he plane was crushed. Small planes tend to be terribly says. ‘I go up in the air’. He flies his own plane, a light and they don’t crash well! four-seater single-engine Cessna 172, and will often ‘The big danger was that when we crashed we use it during the summer months to get up and down were very near a fuel farm. If we’d hit it, I certainly to Dublin for work. Flying time from his home in wouldn’t be here and Knock Airport would have Mayo is only 40 minutes – and it’s one sure way to needed to be built all over again’. avoid a taxi blockade. McEllin later joked that he was just going the Like many young men before him, McEllin

17 Law Society Gazette December 2000 News analysis

people on criminal charges. It’s nice to win that type of case. Where you use the law – and use it properly – to achieve a result, it’s good fun’. When McEllin was elected to the Law Society Council in 1984, he was following in the footsteps of his father, the late Paddy McEllin. In his 16 years on the council, he has chaired most of the society’s major committees, including finance, registrar’s, compensation fund and professional indemnity. It won’t come as much of a surprise to learn that the man who enjoys a good fight also has strong opinions about the current state of his chosen profession – not all of them positive. McEllin believes the relaxation of the ban on solicitor advertising in the early 1990s was a contributory factor in what he believes is a public perception of a decline in professional standards. And although the government is set to reimpose the prohibition, with the full backing of the Law Society, he thinks this may be too little, too late – at least in terms of public opinion. ‘I don’t think it’s going to impress the public because they will simply see it as the government acting to stop “ambulance chasing” solicitors. The Law Society is going to get no marks for saying, “Look, we were always against it and we supported the government in reintroducing the ban”’.

Keep the customer satisfied The best long-term response to public criticism, he feels, is to instil a firm belief in the notion of client care in every apprentice solicitor coming through the system. ‘We need to teach them more than just how to be lawyers: they need good communication skills, they need to know how to look after their clients. Apprentices have to understand that they are professionals, that they need to have standards and wanted to join Aer Lingus as a pilot, but there was a must maintain those standards’. recruitment freeze in the early seventies. Instead, he Client care is something very dear to McEllin’s studied law in Trinity College, Dublin, and entered heart. Perhaps because he also runs a travel agency his father’s law firm, Patrick J McEllin, Solicitors, in that he inherited from his uncle, he feels that Claremorris, Co Mayo. He qualified in 1977. solicitors need to be more aware of the business ‘My father was delighted that he had a son in the issues that impact on their clients. He also believes practice. There are only two in the family, myself and that lawyers generally make bad businessmen. my sister, and she didn’t do law. When I was ‘They tend to be simply lawyers, giving advice; presented with my parchment, it was the proudest many appear not to have developed any sort of day of his life’. business acumen’, he says. ‘There are exceptions, but The firm now has a complement of four solicitors by and large all they want to do is practise law. They and nine support staff. McEllin’s wife, Ann, is also a are not actually out there hustling and bustling in the solicitor and practises 17 miles away in Castlebar in business world’. the all-female law firm of King & McEllin. In the interests of domestic harmony, the McEllins have Tough line on regulation adopted a policy of never facing each other across a The corollary to that, he adds, is that they may not courtroom. ‘If the two firms are on opposing sides in run their law firms in a business-like fashion, which an action, someone else deals with it in each office’, can lead to cash-flow problems and the subsequent he says. ‘We never do’. temptation to dip into the client account when times get tough. His years of experience sitting on the Law Fighting talk Society’s regulatory committees leads him to take a That’s probably about the only fight that McEllin tough line on policing the profession. would walk away from. ‘I specialise in civil litigation’, ‘A couple of years ago there was a run on the he says, ‘but I also enjoy a good fight. And I compensation fund which prompted the Law Society particularly enjoy district court work, defending to recruit more investigating accountants. As a result,

18 Law Society Gazette December 2000 News analysis solicitors are now dealing with their affairs in a far more business-like manner – because they have to. They are subject to sanction if they don’t. They are FACT FILE now using their books as a business tool to enhance WARD McELLIN their profits and run their business more efficiently. Born: Claremorris, 1955 They are doing what they have to do because the Lives: Castlebar, Co Mayo Law Society is far more vigilant. We have more Family: Married to Ann (also a solicitor), two children (Lisa and Patrick) accountants on the road and we police the profession Occupation: Solicitor (admitted to Roll of Solicitors in 1977). Principal of the better than we did years ago’. Claremorris firm of Patrick J McEllin & Son, which employs four solicitors and It’s clear that practice management issues will play nine support staff a central role in McEllin’s vision as Law Society Education: Secondary: Castleknock College, Dublin; third level: Trinity College, president. ‘We’re doing very little on the continuing Dublin legal education side to improve practice Law Society career: First elected to council in 1984. Junior vice-president management’, he says. ‘We’re not holding seminars 1995, senior vice-president 1999, president for year 2000/2001. Has served on the subject or giving out useful information to as chairman of most of the society’s committees during his 16-year tenure on practitioners. I intend to set up a task force to look at council, including finance, registrar’s, compensation fund and professional how we can actually provide a service that will be indemnity meaningful, perhaps through modules or courses, to Interests: Flying (holds pilot’s licence), rugby and tennis. Past-president of help solicitors run their offices in a more efficient Castlebar Rugby Football Club and past-president of Castlebar Lions Club. manner. We hope we can bring in a simple system that can be understood and, more importantly, implemented in each solicitor’s office’. ‘Everyone would be a winner’, he argues. ‘It ‘The ‘Some months ago, the Law Society set up a task would help the compensation fund and solicitors force to look into the possibility of establishing a could see in advance how their offices are doing. It government formal pro bono scheme for the solicitors’ profession. would make them more efficient in handling clients’ is relying on The task force has been meeting every month and affairs, which would benefit the client. canvassing a wide range of opinions on the wisdom of ‘It won’t all be done in one year. But if I could the legal recommending such a scheme. In recent weeks it has start the process, I would be happy’. profession to written to the presidents and secretaries of every bar association in the country seeking their views on the Build it and they will come get them off advisability of such a scheme. A self-confessed technophile, McEllin will also be the hook by ‘Obviously, I don’t want to pre-empt any selling the virtues of IT to a profession that has recommendations that the task force eventually sometimes been slow to embrace it. By way of filling the makes. But I will just make two points. example, he suggests that practice notes could be gaps in the ‘The first is this. I don’t think there is a solicitor’s disseminated more quickly and effectively to office in the country – and this is particularly true of solicitors by e-mail, as could important court system practitioners in rural areas – who don’t do some kind decisions and legislative changes. ‘Something in the through pro of pro bono work on a daily basis. We’ve all done jobs region of 60% of the profession are on e-mail at this for clients knowing full well that there are two stage’, he says, ‘but how many are actually using it is bono advice’ chances of seeing any kind of payment. In some another question entirely. I believe that if we are cases, we know the client can’t pay; in other cases, we offering a service, then they will use it. And if solid, know they won’t. We may hope that what we lose on useful information comes out of Blackhall Place on the swings, we gain on the roundabouts – but often e-mail, the profession will pick it up. Certainly the that’s not the case. younger solicitors, every one of them, are computer ‘We don’t complain, and we don’t trumpet it literate’. around town either. It just comes with the territory. Among the other issues that he will be pursuing It’s part of living and working in a community. during his year, the appointment of solicitors to the ‘The second point is that the legal aid system is in superior court benches is high on his list of a shambles. There’s no delicate way of putting it. It priorities. ‘We are the larger of the two legal seems to me that the government is relying on the professions’, he says, ‘and I believe that there are a legal profession to get them off the hook by filling number of my colleagues who would make the gaps in the system through pro bono advice. This eminently excellent High Court and Supreme Court can’t go on. The country has never been richer, and judges. I believe that that should happen sooner it’s about time the government invested some rather than later, and I think it will’. resources in providing a proper, fully-funded legal aid service for the citizens of this state. Bandits at 12 o’clock ‘I can tell you that during my year in office the There’s one other hot topic that the new president Law Society will be lobbying the government feels strongly about, and it could see the Law Society vigorously to put such a system in place’. engaged in a dog-fight with the penny-pinchers in A man who enjoys a good fight and who can face a government. On the question of legal aid, McEllin plane crash with equanimity? You wouldn’t want to will be coming out of the sun with all guns blazing. be in the government’s shoes. G

19 Law Society Gazette December 2000 Consumer law

What good is ost consumers in Ireland know little about their rights and consumer obligations under the law legislation if you governing consumer credit agreements and, in particular, hire can’t understand M purchase agreements. Even members of the legal it? The profession have not fully digested the Consumer Credit Act of 1995. The act is indeed a complex and Consumer Credit lengthy piece of legislation and imposes many Act, 1995 is laborious requirements in order to successfully set up financial agreements with consumers. guaranteed to The act was implemented to adopt the give most requirements of the EU directives into Irish law to harmonise legislation on consumer rights within the consumers – and member states. The act applies to all consumer many lawyers – credit contracts entered into on or after 13 May 1996. a headache, The sections of the act which specifically deal particularly with hire purchase agreements are sections 56 to 83. Sections 56 to 58 set out the required contents when it comes of all HP agreements. Failure to comply with these to hire purchase requirements may render the agreement unenforceable under section 59. agreements, as Section 59(1) allows the court to dispense with Keith McConnell certain requirements if it believes that such a requirement ‘was not deliberate and has not explains prejudiced the hirer, and that it would be just and equitable to dispense with the requirement’. This concept of ‘just and equitable’ is a clear indication that the court has the right to refuse any application where it feels that the consumer is entitled to the strict interpretation of the act. It is important to note at this stage that the act specifically precludes the court from exercising such discretion as allowed for in section 59 where the owner has failed to comply with the requirements of section 58(1) and therefore such a failure is an absolute bar on the deals with the authority contained within the owner seeking to enforce an agreement or a contract for the owner to enter premises for the guarantee relating to it. Section 58(1) requires the purposes of taking possession of the goods. Premises owner to personally hand, or send within ten days in this context do not include a house or building in of the making of the contract, a copy of the the area surrounding a house. contract to the hirer and a copy of the guarantee to Section 63 (which largely replaces the repealed the guarantor where applicable. section 5 of the Hire Purchase Act, 1946) contains the right of the hirer to determine the agreement before Consumers’ rights the final payments fall due by giving notice of Section 62(1) sets out certain provisions which, if termination in writing to the owner, and indicates contained in a hire purchase agreement, are deemed the maximum amount recoverable by the owner in void. Section 62(2) provides exceptions to the these circumstances. The hirer has the following two content of section 62(1) where the subject of the options: agreement is a motor vehicle. This area mainly •To pay the amount, if any, required to bring the On the

20 never-nLaw Society Gazette December 2000 Consumer law

Section 63(3) allows the owner to recover damages where the hirer ‘failed to take reasonable care of the goods’; this only applies when the hirer determines the contract. Unless a similar or equivalent term is contained in the contract, there is no such ability to recover damages in this manner where the owner determines the agreement. Section 64 provides that where goods are let under a hire purchase agreement and one-third (or more) of the hire purchase price (as defined in the act) has already been paid, then the owner shall not enforce any right to recover possession of the goods from the hirer other than by legal proceedings. The section goes on to set out the penalty if the owner fails to comply. Breach of section 64(1) is a summary offence prosecutable by the director of consumer affairs. Further to this, section 64(2) of the act provides that where an owner recovers possession of the goods in contravention of section 64(1), the agreement shall automatically determine and the hirer and/or guarantor is entitled to be released from all liability under the agreement and is entitled to recover all sums paid under the contract or any security given from the owner. This could be have a considerable financial impact on the owner should he fail to observe the property rights vested in the hirer after paying over one-third of the hire purchase price. There is an exception, albeit a very restricted one, when the goods involved are motor vehicles and this is provided for in section 64(3): ‘Where the owner of a motor vehicle let under a hire purchase agreement has commenced legal proceedings to recover possession of the vehicle total sums paid under the contract up to one-half from the hire and it has been abandoned or left the total hire purchase price or the arrears due unattended in circumstances which have or are • The sections under the contract at the date of termination, likely to result in damage to the vehicle, the owner dealing with whichever is the higher. (Alternatively, he could hire purchases shall be entitled to enforce a right to recover pay any lesser amount specified in the agreement, are not user- possession of the vehicle and to retain possession but in reality it is unusual for an agreement to friendly for thereof pending the outcome of the proceedings’. allow for a lesser amount, though this possibility either hirer or It is important to consider this leniency carefully cannot be ruled out) owner and literally: in particular, it clearly states that the •To purchase the goods by paying the amount • Consumer owner must have ‘commenced legal proceedings to outstanding under the agreement reduced in rights and HP recover possession of the vehicle’ and that the accordance with sections 52 or 53 of the act. agreements goods must be ‘unattended in circumstances which • Is it time the Sections 52 and 53 allow for rebates to be have or are likely to result in damage to the act was calculated in accordance with an approved overhauled? vehicle’. Commentators believe that in order to formula. rely on this section, there must be at least a prima MAIN POINTS facie case to the effect that the vehicle has either been abandoned or left unattended in a manner which has or is likely to result in damage to it. On the issue of abandonment, O’Hanlon J in G & J Carroll v Sheridan & Sheridan ([1984] ILRM 451), citing Crossley v Lightowler ([1986] LR 3 Ex 279; [1867] 2 Ch App 478) as authority, stated: ‘The question of abandonment is a question of fact that must be determined upon the whole of the circumstances of the case ... and that the mere suspension of the exercise of a right is not sufficient to prove an intention to abandon ... the

21 neverLaw Society Gazette December 2000 Consumer law

Section 54(2) goes on to say that a creditor/owner DEFINITION OF A HIRE PURCHASE AGREEMENT shall not determine the agreement, demand early The Consumer Credit Act, 1995 defines a hire purchase agreement as an payment of any sum, recover possession of the ‘agreement for the bailment of goods under which the hirer may buy the goods, treat any right conferred on the consumer by goods or under which the property in the goods will, if the terms of the the agreement as determined, restricted or deferred agreement are complied with, pass to the hirer in return for periodical or enforce security without serving on the consumer payments’ (section 2(1)). a notice of at least ten days (read as 21 days if the breach can be remedied by the hirer) before the date DEFINITION OF A CONSUMER, HIRER AND OWNER on which he proposes to take action, containing the Section 2(1) of the act supplies the definition of the term ‘consumer’ for same details as specified above. Such a notice should the purposes of interpreting the act. A consumer ‘means a natural person also contain details of the action to be taken by the acting outside his trade, business or profession’. The act goes on to consumer in order to remedy the breach and, if the define a ‘hirer’ as a ‘consumer who takes, intends to take or has taken breach is not capable of being remedied, the sum (if goods from an owner under the hire purchase agreement or a consumer any) that must be paid as compensation for the hire agreement in return for periodical payments’. An ‘owner’ is defined as breach and the date before which it is to be paid. ‘the person who lets or has let goods to a hirer under a hire purchase This date is to be no less than 21 days after the date agreement or a consumer hire agreement’. of service. Failing to implement the correct procedure in terminating a hire purchase agreement is probably question of abandonment of a right is one of the most common oversight. This is of particular intention to be decided on the facts in each importance because if the agreement is not correctly particular case’. terminated, no lawful demand can be made for the If the vehicle has been damaged, the owner may hirer to pay the outstanding contractual liability on not have too much difficulty in establishing a prima termination of the contract. facie case. Unfortunately, in cases where the vehicle has not (yet) been damaged, establishing a prima facie Crucial cautions case is not a simple task. Recovering the vehicle ‘The act has It is important in all instances to ensure that you without an order for possession is risky when you have an enforceable agreement. Be certain, wherever consider the potential loss to an owner who is now been in possible, that all the requirements of the act have deemed to be in contravention of the act. operation for a been complied with before making a demand for Note that this section does not allow the owner to payment. It is also important to make sure that you dispose of the goods before obtaining an order of the number of are pursuing the contractual liability under the hire court in these circumstances. The owner must hold years, and it purchase agreement and not a different amount, such the goods until the outcome of the legal proceedings as a ‘book loss’, that exceeds the maximum liability of for recovery of the vehicle. It is only on voluntary may now be an the hire as set out in section 63. surrender of the goods by the hirer under section 63 opportune time Pursuance of the contractual liability is possibly that the owner will be allowed to sell the goods the most controversial part of the act, in that the act without a court order after one-third of the price has for it to be was implemented to provide protection for the been paid. reviewed so consumer in dealing with financial institutions. In an attempt to protect the consumer, section 63 sets out Termination of an agreement that the people the maximum liability of the hirer in determining the Section 54(1)(i) to (v) requires that before an owner for whose agreement. The maximum liability sets out that the shall enforce any provision of an agreement by consumer can be held liable to ‘pay the amount, if demanding early payment of any sum, recovering benefit it was any, by which one-half of the hire purchase price possession of the goods or treating any right drafted may exceeds the total of the sums paid and the sums due conferred on the consumer as determined, restricted in respect of the hire purchase price immediately or deferred, he must serve a notice on the consumer understand it before termination, or such less amount as may be at least 21 days before the date on which the owner and avail of its specified in the agreement’. proposes to take any action. (The act refers to ten Liability under section 63 can often differ days, but if this sub-section is read in conjunction protection’ considerably from what financial institutions would with section 54(2)(v)(II), the period must be deem as their ‘book loss’. It is not common for expanded to 21 days.) The notice should include the financial institutions to allow for a lesser liability in following details: their contracts than the liability allowed for under • Details of the agreement sufficient to identify it this section. In certain circumstances, the financial • The name and address of the creditor/owner institution can pursue the section 63 liability even • The name and address of the consumer though this liability may entitle it to recover more • The term of the agreement to be enforced than its actual loss on the contract. One should also •A statement of the action he intends to take to note that the act gives no right to the owner to enforce the term of the agreement, the manner recover the goods or payment for that matter when and circumstances in which he intends to take an agreement is determined. The owner must such action and the date on or after which he therefore incorporate these rights into the agreement intends to take such action. upon entry into the contract; there is usually a

22 Law Society Gazette December 2000 Consumer law section in the terms and conditions that will contain user-friendly for either the hirer or owner. The act such rights. has now been in operation for a number of years, If an agreement is terminated in its early stages, it and it may now be an opportune time for it to be can cause hardship to the hirer in that he may be reviewed so that the people for whose benefit it was required to pay the arrears and/or the balance drafted may understand it and avail of its protection required to bring all sums paid under the agreement and also so that those who have to comply with it up to one-half the total hire purchase price. There is may more clearly understand their obligations. no obligation on financial institutions to term their The uses of the one-half and one-third rules are contract in such a manner as to allow the owner to arbitrary and, in some instances, favour one party recover the amount as calculated under section 63, over the other. They take little account of modern this being the maximum amount recoverable under financial arrangements and produce inequities on the act. Such financial institutions commonly place a one party over the other; these inequities should at term in the contract allowing for recovery of the least be changed. sum due as calculated under section 63, not On average, over a number of agreements, necessarily to make a profit from contracts financial institutions may recover sufficiently on terminated in their early stages but to safeguard contracts terminated in early stages to compensate their interest. The main reason that an owner would for their losses in contracts terminated in their latter profit in such situations is the fact that the sale price stages, after the goods have depreciated of the vehicle has no bearing on the liability of the considerably. The same cannot be said for the hirer. unfortunate hirer who learns in the early stages that Indeed, to term the contract in a fashion that does he cannot fulfil his obligations under the contract not fall within the liability allowed to be claimed and, in terminating the agreement, is unable to under section 63 may, in some cases, allow the claim relief based on the re-sale of the goods before liability of the hirer under the contract to exceed they depreciate greatly. It is this hirer who will be that allowed for under the section. If this situation the hardest hit on all counts, the same hirer to occurs, the term will be rendered void and the whom the act purports to provide protection. G owner cannot pursue the hirer for any of the outstanding liability (S 62(1)(c)). Keith McConnell is an apprentice solicitor with Dublin It is clear that the Consumer Credit Act, 1995 is not law firm Matheson Ormsby Prentice.

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23 Law Society Gazette December 2000 Gadgets Tech trends By Maria Behan

Worth the hype? Just the fax, ma’am

ony’s PlayStation2 is the toy entertainment value, check out ax machines seemed like Sthis Christmas, for kids and the new Spiderman game at Fmagic when they first grown-ups alike. around £35). appeared. Documents would Billed as the most appear out of pure powerful computer nothingness, and were often entertainment system just as useful. These ever, this games days, you don’t even console boasts state- need the machine. of-the-art graphics and For instance, a built-in digital video RightFAX software disk (DVD) player. But allows all fax with demand far processes to be outstripping supply, the handled from users’ quest for this particular desktops, saving gift may dampen your considerable Christmas spirit. Priced amounts of time firms, RightFAX also offers at £380 and available – if and, hence, money. features such as the ability to you’re lucky – at Sony Centres and Incoming docu- attach billing codes to faxes electronic and toy outlets. ments can be for easier integration with a Individual games go for about routed to firm’s practice management £50 each (top tip: for real individual system. An optional OCR desktops, sent to router uses optical character specified groups of recognition to scan the first users or even accessed via the page of an inbound fax for A base to build from Internet. Through integration recognisable character strings CL’s Lawbase Professional capabilities such as fee earner with e-mail systems such as – say, the name of a client or a Bis a software suite income analysis, and case Microsoft Exchange and case – then circulates the fax developed specifically for the management software that Lotus Notes, large documents to those listed in a Irish legal profession. It includes case logs, automatic can be faxed within 30 corresponding routing table. includes an integrated database document production and seconds, cutting out the time A two-line Business Server (which can share data with alarms. Pricing varies based on that would otherwise be spent system costs about £6,000, your word-processing options selected and the number of cooling your heels at the fax including installation and software) to keep track of the users; running the full suite on an machine. Developed originally training; available from Softech details of cases and clients, a NT network costs about £600 per for medium-to-large legal on 01 215 6200. legal accounting system that user; individual software modules features basics such as time can be also bought separately. recording and invoice Contact BCL on 01 660 4545 or e- production as well as fancier mail [email protected]. Music to your ears?

o the words ‘innovative ideal Christmas gift to Degg-shaped speakers yourself. The design really is combined with a discreet non- unusual: one slim box houses directional subwoofer’ make the amp, tuner and CD you go all gooey inside? Well, player, with function that’s how Kenwood describes depending on how you have it its VH-650 sound system. So positioned. Turn it one way if you like your subwoofers and it’s a CD player; turn it discreet (and who wouldn’t? – another, it’s a classy radio. particularly if you’re the Available for around £500 from proud owner of a Richard Brown Thomas stores; the Clayderman collection) this optional mini-disc costs £300 and audio system might be an the cassette runs to £170.

24 Law Society Gazette December 2000 Gadgets Easy on the eyes

ooking at a widescreen TV your interior design problems don’t want them Lis great – unless the with a clip-on panel (you watching TV. In the behemoth taking up half your choose the colour) so you can long run, it’s easier than living room clashes with your change the look of your set if locking them in the coal décor, in which case it’s the standard silver finish isn’t house – and a lot less probably time to redecorate. quite you. The set also features difficult to explain to Billed as the first ‘designer TV’, cinema-quality Dolby sound social services. The this 32-inch widescreen set and a child lock to keep the Thomson 32WX65US widescreen from HM Entertainment and from Thomson aims to solve young rascals away when you TV is available for about £1,600 other electronics outlets. Sites to see

Australian Legal Information Institute (http://www.austlii. Irish Insurance Federation (www.iif.ie). This site should be edu.au). Need to know something about the law down-under? useful for anyone with an interest in insurance issues. Its section This website provides primary sources, including the current dedicated to consumers features a facility to submit insurance skinny on Australia’s statutes, together with journals, teaching queries and complaints. It also provides information on insurance materials, lists of legal organisations and links to other statistics and a glossary that spells out the often arcane industry antipodean websites. jargon, such as ‘boring’, ‘sharks’ and ‘rip-off’, perhaps?

Indiana University Virtual Law Library (http://www.law. Photobox (www.photobox.ie). Planning to take compromising indiana.edu/v-lib). Part of the ambitious World Wide Web Virtual snaps at the Christmas party? Why not share them with the Library project, this on-line treasure trove of legal information is world thanks to this site, which lets you organise photos into a organised by organisation type (for example, US government set of on-line albums which can be distributed across cyberspace. agencies) and by legal topic (such as contracts). There’s also a list Who’d have thought the humble photocopier could provide so of legal search tools and other comprehensive law sites. much cheap entertainment?

25 Law Society Gazette December 2000 Briefing Report of Law Society Council meeting held on 10 November

New Council members the junior vice-president, practising certificate application Bar Association to secure its The Council welcomed its Michael Irvine, then took form to make a voluntary support for the CCBE newly-elected members, office and pledged their contribution to FLAC (in the position. Simon Murphy and Edward support to the president and same way as the Solicitors’ Hughes, together with the the Council for the coming Benevolent Fund).’ CCBE new nominees from the year. Proposed: James MacGuill John Fish reported on a Southern Law Association, Seconded: John Costello French presidency proposal Patrick Dorgan and Eamonn Objectives for the year for a convention in relation Fleming, and wished them The president outlined three The Council noted the to mutual assistance in regard well for their term of office. specific objectives for the valuable service provided by to money-laundering and society for the coming year: 1) FLAC over many years, with organised crime. The CCBE Taking of office by president he had established a special minimal financial support had expressed its deep and vice-presidents task force to conduct a root- from government. The lack concerns regarding a The outgoing president, and-branch review of the area of a proper legal aid scheme suggestion that the legal Anthony H Ensor, thanked of practice management, to was deplored by the Council. profession would be included the Council, the director report to the Council by 1 After a brief discussion, the within the terms of the general and the staff of the July 2001 on the way forward; Council approved the convention. Mr Fish also society for their support 2) he intended to engage in a motion. reported that the CCBE had during his year of office. He specific drive to identify agreed a policy position with expressed his best wishes to practitioners who could EU directive on money the EU Commission in the incoming president, Ward contribute to the Council and laundering relation to the WTO and McEllin, who was then to its committees and to John Fish reported that, GATS. In essence, they had formally appointed to office encourage them to become notwithstanding that the recognised the right of by the Council. Mr McEllin involved in the work of the Council of European Finance lawyers from other thanked the Council for the society; 3) new Solicitors’ Ministers had taken a policy jurisdictions to establish honour of electing him accounts regulations would be position in support of the within the EU, provided they president. He paid tribute to introduced at the earliest obligation on lawyers to registered with the Anthony Ensor for his possible date and would be report suspicions of money appropriate professional ‘captaincy’ of the society over rigidly enforced by the laundering by their clients, body, were subject to all the previous year and for the society. the CCBE had decided to disciplinary and regulatory manner in which he and his continue to oppose the rules, had no right of wife, Beatrice, had represented Motion: voluntary proposal. It was intended to representation in court and the profession at home and contribution to FLAC write to all MEPs in relation were confined to providing abroad. The senior vice- ‘That this Council recommends to the text of the directive advice on the law of their president, Elma Lynch, and that practitioners be asked on the and to contact the American home jurisdiction. G

Practice note

SUPERIOR COURT RULES: OFFER OF PAYMENT IN LIEU OF LODGMENT Practitioners should note the the rule) is entitled to make or make an offer of tender of pay- The new rule came into effect introduction of SI No 328 of increase a lodgment on his own ment to the other party. The rule on 19 November 2000 and is 2000 which adds a new rule behalf or on behalf of any other also allows for the making of an introduced in addition to the (rule 14) to order 22 of the party under the Superior Court additional tender offer. The existing rules regarding lodg- Superior Court Rules 1986. Rules or by order of the court, forms on foot of which a tender ments, which still apply. The rule provides that where then such party may, in lieu of may be made are set out in the a qualified party (as defined in lodging any money in court, rule. Litigation Committee

26 Law Society Gazette December 2000 Briefing Practice note Taxation of settlements and awards in employment cases

The Employment and Equality tlement. They are both treated aspects, possibly including be applied to a settlement or Law Committee wishes to draw the same way for tax purpos- legal costs. award will vary depending on members’ attention to the pos- es. All aspects of an award or All employees have a basic the individual employee’s tax sible application of income tax a settlement are covered and tax exemption on a settlement position, and where awards and social welfare payments this may include legal costs. or award of £8,000 plus £600 exceed the basic exemption to settlements and awards in Practitioners acting for per year of service. There may expert tax advice should be employment cases. employers should advise their be additional exemptions avail- sought. In some non-employment clients of their obligations able. Where a settlement or cases, monies paid in settle- under tax and social welfare award exceeds the basic Company directors ment of proceedings or by way legislation to deduct tax and exemption, the possible tax In the case of a director of a of damages are not subject to possibly make social welfare implications should be taken company, where a payment is taxation. Employment dis- contributions from payments into consideration in particular proposed to be made in whole putes, however, where they made to employees on foot of before concluding a settle- or in part in respect of loss of involve or relate to the termi- a settlement or award. ment. There is no obligation on the office of director, any such nation of an employee’s Practitioners acting for employ- any practitioner to point out to proposal must be approved by employment, are covered by ees must advise their clients another practitioner the appli- a general meeting of the com- chapter 5 of the Taxes when settling a case or in cability or otherwise of tax to a pany as required by sections Consolidation Act, 1997. In receipt of an award that the figure agreed in negotiation of 186 and 189 of the the taxation of payments to a payment ultimately made on a settlement or on foot of an Companies Act, 1963. former employee under chap- foot of such settlement or award. ter 5, no distinction is made award may have tax deducted The actual amount of tax or Employment And Equality between an award and a set- from the payment in all its social welfare deductions to Law Committee leaders… in the quest for excellence…

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BUSINESS LAW member states, which is set to article 81 or abusive conduct instructed to prepare contracts expand even further. The within the meaning of article 82 and forward them to the pur- Radical reform of procedures Commission believes that its are capable of affecting trade chaser’s solicitors. Ms Jones had implementing articles 81 monopoly over the application between member states, EU been given every opportunity to and 82 of article 81(3) constitutes a sig- competition law would apply to issue the contracts but she had On 27 September 2000, the EU nificant obstacle to the effective the exclusion of national compe- failed to do so. In addition, she Commission adopted a proposal application of the competition tition laws. According to the had ignored 15 phone calls, four for a regulation amending the rules by national competition Commission, this would result in letters and six letters from Mr procedures (that had been in authorities and courts. By giving greater harmonisation and more Murphy’s auctioneer. A year had force since 1962) for the imple- them the power to apply articles consistent application of the now passed and Mr Murphy was mentation of articles 81 and 82 81 and 82 in their entirety, the competition rules. It would also at the end of his tether. He of the Treaty of Rome, which set Commission believes that the mean, however, that the Irish asked Mr Smith to deal with the out the rules applicable to proposed regulation would cre- Competition Authority would matter for him. restrictive agreements, deci- ate a more effective network of not be able to apply Irish compe- On the following day, Mr sions and concerted practices competition law enforcers. tition law in such cases. This Smith issued contracts to the and abuses of dominant posi- Many member states, includ- makes it all the more important, purchaser’s solicitors. Ms Jones tions. ing Ireland, have enacted if effective enforcement of com- got wind of this and wrote a Under the present system, national competition laws based petition law in Ireland is to be four-page letter in the strongest the Commission has exclusive on articles 81 and 82 and have ensured, that the Competition possible terms to Mr Smith, power to apply article 81(3). established national competition Authority be given the necessary which concluded: ‘Your scurrilous Thus, all restrictive agreements authorities to enforce those powers to enforce EU, as well as behaviour in approaching my client caught by the prohibition in national competition laws (and, Irish, competition law. is unethical, disingenuous and com- article 81(1) and requiring in many cases, to enforce EU The text of the proposed reg- pletely reprehensible. It is the act of exemption under article 81(3) competition law as well). The ulation is available on the follow- a low-life and undesirable solicitor’. have to be notified to the Irish Competition Authority ing website: http://www. Mr Smith took complete Commission. currently has no power to europa.eu.int/comm/competition/ offence at the tone of Ms Jones’ The proposed regulation enforce EU competition law, antitrust/others. letter and responded with a five- would introduce a radically dif- although it is expected that it Gerald FitzGerald, page letter. He asked Ms Jones ferent regime which would will be given such power in the Business Law Committee to withdraw her remarks and involve the abandonment by the wake of the Competition and alleged that she was completely Commission of its monopoly Mergers Review Group’s rec- REGISTRAR’S incompetent and had lost all over the granting of exemptions ommendation to that effect. touch with commercial reality. under article 81(3). Instead, the This would be consistent with How to avoid wasting the This letter prompted a further regulation would introduce a the requirements of the pro- committee’s time (and your exchange of acrimonious corre- directly applicable exemption posed regulation. own) spondence culminating in a for- system whereby both the prohi- The new regime would also Many solicitors unnecessarily mal complaint by Mr Smith to bition in article 81(1) and the allow the Commission to focus appear before the Registrar’s the Law Society. exemption provisions in article its attention on and devote Committee having first indulged By this stage, both parties had 81(3) could be directly applied greater resources to more effec- themselves in acrimonious cor- wasted four working hours deal- not only by the Commission but tive detection and punishment respondence with other solici- ing with each other’s correspon- also by national courts and by of infringements (in particular, tors, their client and even the dence. national competition authori- the more serious infringements committee itself. The following The Law Society’s complaints ties. This direct application of such as price-fixing and is an amalgam of a number of section wrote to Ms Jones, who article 81(3) would mean that market-sharing cartels). The cases that have responded by reporting Mr agreements fulfilling the condi- Commission believes that this been before the Registrar’s Smith for unprofessional con- tions of that paragraph would will lead to improved protection Committee which demonstrates duct in touting her client. The be legally enforceable without of competition and to increased this type of situation. society asked Mr Smith for his the need to notify them to the benefits for consumers in the Mr Smith, a solicitor, was comments and he failed to Commission for exemption. operation of the European sin- contacted by Mr Murphy, who respond. A reminder was issued The Commission has pro- gle market. explained that a year ago he had and again Mr Smith failed to posed this new approach A significant feature of the agreed to sell his house (through respond. Accordingly, Mr Smith because it felt that the current proposal is that where agree- an auctioneer) to a Mr Pearson was requested to attend at the system was no longer workable ments, decisions or concerted for £300,000. Mr Murphy’s next meeting of the Registrar’s in a European Union of 15 practices within the meaning of solicitor, a Ms Jones, had been Committee. He did not do so

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31 Law Society Gazette December 2000 Briefing

LEGISLATION UPDATE: 19 SEPTEMBER – 13 NOVEMBER 2000 ACTS PASSED the state’s obligations as a party An Chomhairle Leabharlanna; section 16 of the Refugee Act, Cement (Repeal of Enactments) to the Dublin convention. Among Irish Water Safety Association; 1996 in relation to the determina- Act, 2000 other things, it puts in place pro- Fire Services Council and the tion by the refugee appeals tribu- Number: 31/2000 cedures for the refugee applica- Office of the Director of nal of appeals against recommen- Contents note: Repeals the tions commissioner to determine Telecommunications Regulation dations of the refugee applica- Cement Acts, 1933 to 1962 whether an application for asylum Commencement date: 21/10/ tions commissioner on applica- Date enacted: 24/10/2000 should, in accordance with the 2000 tions for recognition as a refugee Commencement date: Com- terms of the Dublin convention, Commencement date: 20/11/ mencement order to be made (per be dealt with in the state or in Planning and Development Act, 2000 s2(2) of the act) another convention country. 2000 (Commencement) Order Repeals and replaces the Dublin 2000 Refugee Act, 1996 (Application SELECTED STATUTORY Convention (Implementation) Number: SI 349/2000 Form) Regulations 2000 INSTRUMENTS Order 1997 (SI 360/1997) Contents note: Appoints 1/11/ Number: SI 345/2000 Air Pollution Act, 1997 (Market- Commencement date: 20/11/ 2000 as the commencement date Contents note: Set out the con- ing, Sale and Distribution of 2000 for ss1, 2 (insofar as it relates to tent of the application form to be Fuels) (Amendment) the sections commenced on that completed by asylum applicants Regulations 2000 Equal Status Act, 2000 date), part v (ss93-101) on hous- under section 8 of the Refugee Number: SI 278/2000 (Commencement) Order 2000 ing supply, part ix (ss165-171) on Act, 1996 Contents note: Provide for the Number: SI 351/2000 strategic development zones, cer- Commencement date: 20/11/ introduction of the ban on the Contents note: Appoints tain sections in part ii on plans 2000 sale of bituminous coal to five 25/10/2000 as the commence- and guidelines: ss13, 28, 29, 30, additional restricted areas in ment date for the act and ss262, 266, 269 and 270 of Refugee Act, 1996 Celbridge, Galway, Leixlip, Naas the act; appoints 1/1/2001 as the (Establishment Day) Order 2000 and Waterford and an additional European Communities (Unfair commencement date for s2 (inso- Number: SI 309/2000 location in the restricted area of Terms in Consumer Contracts) far as it relates to the sections Contents note: Appoints 4/10/ South Dublin. Amend the Air (Amendment) Regulations 2000 commenced on that date), the rest 2000 as the establishment day Pollution Act, 1987 (Marketing, Number: SI 307/2000 of part ii: ss9-12, 14-27, 31, and for the purposes of the Refugee Sale and Distribution of Fuels) Contents note: Give further effect the first schedule of the act Act, 1996 Regulations 1998 (SI 118/1998) to Council Directive 93/13/EEC Commencement date: 1/10/ on unfair terms in consumer con- Planning and Development Refugee Act, 1996 (Places and 2000 tracts. Provide that consumer Regulations 2000 Conditions of Detention) organisations set up for the pur- Number: SI 350/2000 Regulations 2000 Comhairle Act, 2000 pose of protecting consumer Contents note: Prescribe the bod- Number: SI 344/2000 (Establishment Day) Order 2000 rights be allowed to bring an ies which must be notified of the Contents note: Set out the places Number: SI 167/2000 injunction. Amend the European preparation of a draft develop- in which persons detained under Contents note: Appoints Communities (Unfair Terms in ment plan and sent copies of the section 9(8) or 9(13) of the 12/6/2000 as the establishment Consumer Contracts) Regulation draft development plan and of a Refugee Act, 1996 may be day for the purposes of the act 1995 (SI 27/1995) draft variation of a development detained. Provide for the treat- Commencement date: 2/10/ plan, and the development plan or ment of such persons while in Criminal Justice (Legal Aid) 2000 variation as made; the bodies detention (Amendment) (No 2) which must be notified of the Commencement date: 20/11/ Regulations 2000 Freedom of Information Act, making, amending or revocation 2000 Number: SI 354/2000 1997 (Prescribed Bodies) (No of a local area plan, in addition to Contents: Provide for an increase 3) Regulations 2000 Bord Fáilte; the bodies which Refugee Act, 1996 (Sections of 5.5% in the fees payable under Number: SI 355/2000 must be notified of the intention 14 and 15 and Second the criminal legal aid scheme to Contents note: Prescribe the fol- to make regional planning guide- Schedule) (Commencement) solicitors for attendance in the lowing as separate public bodies lines, and sent a copy of the draft (No 2) Order 2000 District Court and for appeals to for the purpose of the Freedom of guidelines; the size of accommo- Number: SI 308/2000 the Circuit Court, and for an Information Act, 1997, by their dation needed by eligible persons Contents note: Appoints 4/10/ increase of 5.5% to solicitors and inclusion in paragraph 1(5) of the as defined in section 93 of the 2000 as the commencement date counsel in respect of essential first schedule to the act: Combat Planning and Development Act, for sections 14 and 15 and the visits to prisons and other custo- Poverty Agency; Social Welfare 2000; the bodies which must be second schedule of the Refugee dial centres (other than garda sta- Tribunal; Irish Wheelchair notified of and sent a copy of a Act, 1996 (as amended by sec- tions) and for certain bail applica- Association; Enable Holistic draft planning scheme for a site tion 11 of the Immigration Act, tions. Revokes the Criminal Services Ireland Limited; Multiple designated by the government as 1999) dealing with the establish- Justice (Legal Aid) (Amendment) Sclerosis Society of Ireland; a strategic development zone ment day for the Refugee Act and Regulations 1999 (SI 385/1999) National Council for the Blind of Commencement date: 1/11/ the refugee appeals tribunal Commencement date: 1/10/ Ireland; National Association for 2000 2000 the Deaf; Cheshire Foundation in Refugee Act, 1996 (Section 23) Ireland; Independent Radio and Refugee Act, 1996 (Appeals) (Commencement) (No 3) Order Dublin Convention Television Commission; An Regulations 2000 2000 (Implementation) Order 2000 Chomhairle Ealaíon; Local Number: SI 342/2000 Number: SI 341/2000 Number: SI 343/2000 Government Computer Services Contents note: Supplement in Contents note: Appoints 26/10/ Contents note: Gives effect to Board; National Safety Council; detail the procedures set out in 2000 as the commencement date

32 Law Society Gazette December 2000 Briefing for s23 of the act. Section 23 pro- Procedures for processing asylum an order to review the taxation of Rules of the Superior Courts (No vides that the minister for justice, claims in Ireland (1998) which had costs, on the taxing master to 5) (Offer of payment in lieu of equality and law reform may make not been finalised by that date transmit to the High Court with his lodgment) 2000 regulations to enable the Refugee Commencement date: 20/11/ report the original bill of costs, Number: SI 328/2000 Act, 1996 to have full effect 2000 notice of objections and any other Contents note: Inserts a new rule material documentation and in lieu 14 Offer of payment in lieu of Refugee Act, 1996 (Temporary Refugee Act, 1996 (Travel thereof requires the party seeking lodgment in order 22 of the Rules Residence Certificate) Document) Regulations 2000 a review of taxation to produce to of the Superior Courts. This rule Regulations 2000 Number: SI 347/2000 the court duly certified copies of provides for the making by quali- Number: SI 346/2000 Contents note: Specify that the such documentation fied parties of an offer of tender Contents note: Set out details of form of travel document to be Commencement date: 19/11/ of payment in lieu of lodging additional information to be issued to a person declared to be a 2000 money in court included in the temporary resi- refugee under section 17 of the act Commencement date: 19/11/ dence certificate which is to be (a convention refugee) and to a pro- Rules of the Superior Courts 2000 issued to each asylum-seeker gramme refugee under section 24 (No 4) (Amendment of Order under section 9(3)(a) of the of the act shall be the form set out 70A) 2000 Video Recordings Act, 1999 Refugee Act, 1996 in the annex to the Geneva conven- Number: SI 327/2000 (Commencement) Order 2000 Commencement date: 20/11/ tion together with the text thereof in Contents note: Substitutes a new Number: SI 353/2000 2000 the Irish and French languages rule 28 in order 70A of the Rules of Contents note: Appoints Commencement date: 20/11/ the Superior Courts (inserted by SI 1/10/2000 as the commence- Refugee Act, 1996 (Transitional) 2000 343/1997) to the effect that the ment date for sections 5, 6, Regulations 2000 provisions of order 119, rules 2 11(1)(a), 12(2), 12(3), 12(5), 13 Number: SI 348/2000 Rules of the Superior Courts and 3, solely insofar as they relate of the act, insofar as these sec- Contents note: Make transitional (No 3) (Documentation for to the wearing of a wig and gown, tions are not already in operation. arrangements for the transfer to Review of Taxation) 2000 shall not apply to any cause, action Provides for the extension of the refugee appeals tribunal, the Number: SI 329/2000 or proceeding under order 70 or these sections to include all statutory appeal procedure under Contents note: Amends order 99, 70A of the Rules of the Superior video works the Refugee Act, 1996, of appeals rule 28(5) of the Rules of the Courts made before 20 November 2000 Superior Courts. Removes the Commencement date: 19/11/ Prepared by the Law under the former scheme entitled requirement, on an application for 2000 Society Library

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33 Law Society Gazette December 2000 Briefing Personal injury judgments

Road traffic accident – issue of credibility – delay in seeking medical assistance – injuries to nose – rhinoplasty CASE Kevin McGoldrick v Patrick Costello, High Court on circuit, before Mr Justice Paul Carney, judgment of 8 November 1999. THE FACTS evin McGoldrick suffered as afterwards. There had been evi- thought the shape of his nose had a fracture was diagnosed on 1 Ka consequence of a road traf- dence that Mr McGoldrick had altered since the traffic accident. April 1988. A rhinoplasty was fic accident. He sustained injury sustained similar injuries in the After some time, Mr McGoldrick performed. Mr McGoldrick stat- to his nose, but did not seek med- past in a ‘punch-up’. Subsequent- went to his local general practi- ed he suffered from headaches ical intervention for a consider- ly, pain developed around his nose tioner and was referred to Sligo and there was evidence that he able period of time after the acci- and forehead and there was some General Hospital. There, he was may require rhinoplasty in the dent. On the night of the acci- swelling. Mr McGoldrick suf- diagnosed as having a marked future to improve cosmetic dent, he went straight into a disco fered nasal congestion and deviation of the nasal septum and aspects. THE JUDGMENT here was no doubt, accord- Mr McGoldrick and his wit- McGoldrick was somebody observed that Mr McGoldrick Ting to Mr Justice Carney, nesses as ‘improbable’, the who had come along to commit was a ‘casual person and that is that negligence lay on the part judge also stated he did not find deliberate fraud and perjury. the way of the world these days’, of the defendant, Patrick Mr Costello ‘either helpful or a The judge noted that and stated again that Mr Costello. However, the judge credible witness’. He noted McGoldrick did sustain injury McGoldrick did not deliberate- said that credibility was an issue that he had been presented to his nose which he had treat- ly go out to invent a fraudulent in the case, noting that the with an over-dramatised ed very casually by not seeking accident and perjure himself three participants in the inci- account of an incident, but he medical intervention for a long into damages. dent who had given evidence did not believe that Mr time after the accident. He were not ‘particularly helpful’. Counsel for Mr McGoldrick: Mr The judge considered it ‘very O’Hagan SC, Mr Edward Walsh dissatisfying’ when consultant Mr Justice Carney held that if Mr McGoldrick did require SC and Mr Colm Smith, instruct- surgeons were placed into serv- rhinoplasty in the future to improve cosmetic aspects, a ed by McGovern Walsh & Co, ice ‘as private detectives by week in hospital would cost £1,000. General damages Solicitors. defendants’. were assessed at £15,000 and a decree was awarded Counsel for Mr Costello: Mr Terry Noting that, in general, he accordingly for a total of £16,000. Circuit Court costs Clarke SC and Mr Keane, would have found the descrip- were awarded with a certificate for senior counsel. instructed by Ms Angela Dempsey,

tion of the accident advanced by THE AWARD Solicitor.

Road traffic accident – negligence – assessment of damages – dispute between the parties as to the calculation of loss of earnings CASE Keith Pethe v Peter McDonagh and the Motor Insurers Bureau of Ireland, High Court on circuit in Waterford, before Mr Justice Philip O’Sullivan, judgment of 2 July 1999. THE FACTS n 2 September 1996, Keith down and seeing his right foot bone, and also breaks of his the trial of his action for OPethe, then 24 years of age, between his knees because, as left-hand middle finger and negligence against Peter was involved in a serious road medical evidence demonstrated ring finger. He suffered cuts on McDonagh and the MIBI. The traffic accident. Mr Pethe spent later, he had complex breaks in his knee and had several teeth expected final operation was to four hours trapped in a car his lower and upper right leg. broken; major damage was par- remove the pin in his right which had almost caved in He had, in fact, sustained ticularly done to four teeth. femur. That operation would around him. He endured the breaks of his tibia and fibula of In all, Mr Pethe underwent be delayed because the surgeon terrible experience of looking his right leg, his femur/thigh seven operations prior to wanted to ensure that there was

34 Law Society Gazette December 2000 Briefing

a complete healing of the bone come off medication. of earnings. For the year 1995, grossed up to a figure of some- before he took the pin out. Mr Liability was not disputed. Mr Pethe’s take-home pay was where near £35,000 to repre- Pethe underwent physiothera- The case proceeded on an £19,696. The dispute between sent his actual gross pay. It was py throughout the entire year assessment of damages only. the parties related to the sub- argued by the other side that of 1997. He himself elected to There was a significant dis- mission by Mr Pethe’s account- this sum of £19,696 was, in stop physiotherapy and instead pute, however, between the ant that this figure was a net effect, his gross pay and that it exercised on a bike to build parties in relation to figure and, as Mr Pethe was a should be netted down to himself up. He also decided to approaching the issue of loss PAYE earner, it should be £11,000. THE JUDGMENT escribing the accident as pensated for pain and suffering would actually have received as rect in principle and what he had D‘horrific’, Mr Justice in the past and for the future receipts. to do was measure an amount of O’Sullivan referred to his gener- and that he had appreciable Another issue arose as to how money to represent Mr Pethe’s al impression of Mr Pethe. He impairment into the future, not- long it was reasonable to argue loss of earnings for as long as he considered Mr Pethe understat- ing that he would have scars, a that there would be loss of earn- considered he had been deprived ed his pain and suffering and, on shorter leg and have the poten- ings because of the accident. Mr by the accident and his injuries a number of occasions, simply tial for soft-tissue discomfort. Pethe had stated that his plan of an opportunity to get back dismissed the suggestion that he The judge then turned to the now was to pursue a four-year into the marketplace. was suffering pain. The judge issue of the significant dispute or longer course of study; he The decree, was awarded formed the impression that Mr between the parties in relation would not be earning during against both defendants on a Pethe was a man of enterprise to how he should approach Mr that time and he was looking for joint and several basis. Counsel and energy and he considered Pethe’s loss of earnings. He said damages measured to loss of for the defence made submis- that that was relevant, to some he would take a simple approach earnings for that period. sions to the judge in relation to extent, when attempting to but not, he hoped, a simplistic Counsel for the MIBI argued an application for a stay. Counsel assess the future in terms of one. Mr Pethe received in a typ- that he was not entitled to dam- for Mr Pethe argued that the earnings. However, he did bear ical year the sum of £19,696. ages for loss of earnings over damages would not, and could in mind the evidence of a clini- The judge accepted that that such a number of years because not, be overturned, having cal neuropsychologist and from was his loss. He considered it the evidence of his injuries regard to the judge’s reasoning. Mr Pethe himself that he suf- was more probable that his showed that he would be in a Mr Justice O’Sullivan replied fered a loss of confidence and arrangement with his employer position of being able to put there was a constitutional right has socialised less with his was that both were satisfied with himself on the job market after of appeal and he could not friends since the accident. The that amount of ‘take’ and the his eighth operation; the assume he was right. He noted: judge noted, although it was not employer in principle did under- defence should not have to pay ‘I am not selling infallibility’. relevant, that Mr Pethe had a take to pay tax and this was for Mr Pethe’s choice to study The judge stated he had heard a two-and-a-half-year-old son apparent from the P60 form. He for any number of years after course of reasoning that in the who suffered from rubella. did not do it properly and the that. absence of proof that a plaintiff The judge considered in gen- loss to Mr Pethe had to be meas- The judge considered that would fritter away the money so eral that the future was bright ured by reference to what he the defence argument was cor- that there was none left if the for Keith Pethe because of his defendants were successful on personal characteristics and the appeal, a stay should not be On the issue of loss of earnings, Mr Justice O’Sullivan advantages of his character. The granted. The judge decided after accepted that Mr Pethe was in receipt of net amounts judge observed that Mr Pethe further argument that a sum of of £20,000, in general figures, in 1995 and that he had a limp and was clearly ‘com- £135,000 be paid forthwith and would have earned that sum more or less in 1996 and promised in his gait’. He had a he would put a stay on the judg- 1997. Accordingly, the judge awarded £60,000 togeth- catching sensation in his skin er with an additional sum of £15,000 making a total of ment on the balance pending which his doctor did not consid- £75,000 for loss of earnings. From this, the judge appeal on the usual terms. er was particularly directly deducted £4,000 a year in terms of disability assis- linked with his injuries. tance which he estimated at a figure of £15,000. Counsel for Mr Pethe: Mr Michael However, the judge noted his Accordingly, the loss of earnings were £60,000. Counihan SC, Mr Liam Reidy SC right leg was some two centime- In relation to pain and suffering to the date of the and Mr Stephen Lanigan O’Keeffe tres shorter than his left one and trial, Mr Justice O’Sullivan awarded Mr Pethe the sum BL, instructed by MM Halley and

he had significant discomfort THE AWARD of £85,000, taking into account all his injuries, includ- Sons, Solicitors. from his right hip, which was ing those to his teeth, his number of operations, and Counsel for the defendants: Mr the site of his next operation. the effect on his personality. In relation to the future, Sean Ryan SC, instructed by Mr The judge said he had seen, in the judge noted that Mr Pethe would still have the John A Sinnott & Co, Solicitors. G the presence of counsel for both scars, would have proneness to soft-tissue injury, sides, the scars on both the would have a shorter leg and there would still be some These judgments were summarised lower and upper limbs of Mr pain ahead for him and discomfort in his hip. The judge by Eamonn Hall, solicitor, from Pethe’s right leg. awarded general damages in the future of £30,000. Reports of personal injury Mr Justice O’Sullivan stated Special damages were agreed at £15,000 which judgments from Doyle Court that Mr Pethe had to be com- brought the full decree to £190,000. Reporters, 2 Arran Quay, Dublin 7.

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36 Briefing Update

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

ADMINISTRATIVE Attorney General v Lee, Environment, High Court, Mr plc v Stokes Kennedy Crowley, the Supreme Court, 23/10/2000 Justice Murphy, 13/10/ 2000 balance of justice required that Inquests [FL3228] [FL3206] the liquidator’s motion should Coroner’s court – non-attendance proceed. The motion brought by of witness – role of attorney gener- Transport, taxis the respondents would therefore al – role of coroner – service of wit- Delegated legislation – European COMPANY be dismissed. ness summons – whether witness law – scheme for provision of new Duignan v Carway, High obliged to attend inquest – whether taxi licences – nature of judicial Delay, statutory interpretation Court, Mr Justice O’Dono- relevant statutory provisions review – whether statutory scheme Liquidation – duties of directors – van, 27/07/2000 [FL3162] unconstitutional – whether witness providing for issue of new taxi restriction of directors – notice of guilty of contempt – whether attor- licences ultra vires – whether chal- intention to proceed – whether legis- ney general empowered to bring lenge to legislation precluded by lach- lation intended to be retrospective – CONSTITUTIONAL proceedings – Coroners Act, es or acquiescence – whether proposed whether delay in bringing proceed- 1962, sections 26, 30, 37 and 38 scheme qualitative or quantitative ings inordinate and inexcusable – Criminal law The defendant was the widow in nature – Road Traffic Act, whether balance of justice favoured Separation of powers – fair proce- of a man who had been fatally 1961, section 82 – Road Traffic allowing motion to proceed – dures – judicial review – mala shot. She initially appeared at (Public Service Vehicles) Companies Act, 1990, section 150 fides – function of Special the inquest which, for legal rea- Regulations 2000 – Road Traffic The applicant, acting as official Criminal Court – whether certifi- sons, was adjourned. She then (Public Service Vehicles) liquidator, had brought a motion cation process by director of public failed to appear at the resumed (Amendment) Regulations 1999 under section 150 of the prosecutions improper interference hearings, despite having been The applicants issued judicial Companies Act, 1990 seeking to in right to trial by jury – whether served with a witness summons. review proceedings seeking to have the respondents restricted DPP’s decision tainted by mala The attorney general then challenge certain provisions of from acting as directors. The fides – whether applicants had issued plenary proceedings the Road Traffic (Public Service motion had been issued in 1994 prima facie case of unconstitution- seeking to compel the atten- Vehicles) Regulations 2000 which and had not been proceeded al discrimination – whether DPP’s dance of the defendant pursuant provided for the issuing of new with. The liquidator now sought decision subject to review by courts – to the provisions of the Coroners taxi licences. The applicants to proceed with the motion and Offences Against the State Act, Act, 1962 and in this regard also challenged the proposal to issue in this regard had served a notice 1939, sections 35, 46 and 47 – sought an interlocutory injunc- additional taxi licences to exist- of intention to proceed. On Prosecution of Offences Act, tion. The High Court (Kelly J) ing licence-holders. The appli- behalf of the respondents, a 1974, sections 2, 3 – Bunreacht na granted the injunction sought cants argued that the relevant motion was brought seeking to hÉireann 1937, articles 38 and 40 and the defendant appealed. provisions of the Road Traffic Act, have the liquidator’s motion set The applicants faced criminal Keane CJ, delivering judgment, 1961 did not permit the scheme aside. It was argued on behalf of charges in a trial before the held that the attorney general proposed by the respondents. the respondents that an order Special Criminal Court. They was a guardian of the rights of Murphy J was satisfied that while made under section 150 must initiated judicial review pro- the public and could seek relief the minister had the right to reg- date from the commencement of ceedings seeking to challenge in appropriate circumstances. In ulate the control and operation proceedings. In addition, it was the decision of the director of this instance, the upholding of of taxis, the restrictions pro- argued that there had been exces- public prosecutions certifying the injunction would dispose posed by the minister were sive and inordinate delay by the them for trial before the Special entirely of the case and thus the quantitative in nature and were liquidator in bringing his motion. Criminal Court. The relief usual test in the issue of injunc- not permitted under the Road O’Donovan J held that section sought by the applicants was tions should not apply. It had Traffic Act, 1961. In addition, by 150 was prospective and any refused by Geoghegan J in the not been demonstrated that this granting the new licences to restriction made thereon would High Court and the applicants was not an exceptional case Irish nationals, the licensing date from the date of the relevant appealed. Hamilton CJ, deliver- requiring the courts to exercise scheme could be said to offend court order. The liquidator had ing judgment, held that the their residual function to ensure against the principle of non-dis- quite properly proceeded with a question of whether the ordi- compliance with the law. The crimination contained in damages claim against the nary courts were adequate to attendance of witness at a European law and indeed could respondents before bringing the secure the effective administra- inquest was a matter for a coro- be said to infringe aspects of section 150 motion. However, tion of justice was a political ner alone to decide. The appeal European competition law. The the delay that had occurred in one. The issuing of certificates would therefore be allowed and orders sought by the applicants bringing the section 150 motion by the DPP was normally not the relief sought by the attorney would be granted. was inexcusable and inordinate. subject to judicial review unless general would be refused. Humphrey v Minister for Applying the principles of Primor mala fides could be proved. No

37 Law Society Gazette December 2000 Briefing arguable ground for judicial whether amount of security should be of the trial. The respondents relief sought by the applicant review had been established and assessed on basis of full trial of action were now faced with having to was accordingly granted. accordingly the order of the – Companies Act, 1963, section meet a substantially different Casey v Governor of Cork High Court dismissing the 390 case and to merely award an Prison, High Court, Mr application would be affirmed. The plaintiff had instituted pro- order for the costs of the day Justice Herbert, 13/09/2000 Byrne and Dempsey v Ireland, ceedings against the defendants would not be sufficient. [FL3163] Supreme Court, 11/03/99 with regard to the development However, to allow costs to the [FL3200] of a wind farm. The defendants respondents on a full party-and- Delay, fair procedures were then successful in bringing a party basis as if the original peti- Constitutional law – sexual offences Constitutional law, motion for security for costs. The tion had been discontinued – delay in prosecution of offences – criminal law, delay present application was brought would be unjust and oppressive. right to expeditious trial – order of Criminal law – constitutional law to determine the amount of secu- In the circumstances, an order prohibition – unavailability of wit- – separation of powers – fair proce- rity that should be furnished by for costs would be granted on a nesses – whether trial should proceed dures – judicial review – delay – the plaintiff. In addition, it was party-and-party basis but only – whether applicant prejudiced in function of Special Criminal Court argued that the original order in relation to certain fees occur- defending charges – Offences – whether government proclama- should not have been made, as the ring in conjunction with the Against the Person Act 1861 tion of 1972 still valid – whether plaintiff company had been incor- adjourned trial. In addition, the The applicant had applied by way certification process by director of porated in England. McCracken J respondents were entitled to the of judicial review for an order of public prosecutions improper inter- held that an order for security for costs of the motion and the costs prohibition to prohibit his ference in right to trial by jury – costs had already been made of taking judgment. The peti- impending prosecution in rela- whether decision of director of pub- under section 390 of the tioners would not, however, be tion to certain sexual offences. lic prosecutions tainted by mala Companies Act, 1963 and it was obliged to furnish security for The applicant claimed that by fides – Offences Against the not permissible for the plaintiff to costs in order to proceed with reason of the delay and due to the State Act, 1939, sections 35, 47 seek to have the original decision their amendments. fact that certain witnesses were The applicant faced criminal altered on the basis of a new argu- Wolfe v Wolfe (& Others),High now unavailable he was preju- charges in a trial before the ment. In addition McCracken J Court, Mr Justice Herbert, diced in his defence. On behalf of Special Criminal Court. He ini- held that the amount of security 28/07/2000 [FL3187] the DPP, it was contended that tiated judicial review proceed- would be assessed based upon a any such delay that could have ings seeking an order staying full trial of the action. The total arisen was due to the position of the prosecution. In the High amount of security to be fur- CRIMINAL dominance that the applicant Court, Butler J dismissed the nished by the plaintiff was held and that the trial judge proceedings and the applicant assessed at £517,000. Delay, fair procedures could counter any possible preju- appealed. On behalf of the Windmaster v Airogen, High Delay in execution of warrants – dice by appropriate directions. applicant, it was argued that the Court, Mr Justice McCracken, habeas corpus application – Kearns J held that the delay in government proclamation of 10/07/2000 [FL3158] whether breach of fair procedures – this case had not been brought 1972 bringing certain sections whether warrants executed as soon about by the prosecuting author- of the Offences Against the State Practice and procedure as reasonably possible – whether ities or by the applicant. A very Act, 1939 into force was no Litigation – amendment of plead- applicant contributed to delay – grave prejudice had arisen due to longer valid. The respondents ings – costs – meaning of ‘costs of the Forgery Act 1913 – Criminal fact that the parents of the appli- contended that the application day’ – whether amendment neces- Justice Act, 1984 – Bunreacht na cant were now deceased. In the was out of time. Denham J, sary to determine issues in contro- hÉireann 1937, article 40.4.2º circumstances, the ability of the delivering judgment, held that versy between parties – whether Warrants for the committal of applicant to defend himself the application itself had been amending party liable for costs aris- the applicant had been issued in against the charges had been seri- brought far too late. In addi- ing up until adjourned date – 1997 and the applicant was ously impaired and the orders tion, the issues raised had whether amending party obliged to eventually arrested and lodged sought prohibiting the prosecu- already been decided in furnish security for costs – Rules of in prison in May 2000. The tion would be granted. Kavanagh v Government of the Superior Courts 1986, order, applicant brought a habeas corpus MK v Judge Groarke and DPP, Ireland ([1996] 1 IR 321). The 28 rule 1; order 99, rule 37(33); application claiming that there High Court, Mr Justice decision as to whether part V of order 125, rule 1 had been an impermissible delay Kearns, 13/09/2000 [FL3169] the 1939 act should remain in The petitioners had sought liber- in the execution of the warrants force was essentially political in ty to amend their petition. The which amounted to a breach of Evidence, road traffic nature. The appeal would amendments were not opposed fair procedures as set out under Dangerous driving causing death – accordingly be dismissed. by the respondents but they the constitution. Herbert J was statement by one of applicants not Gilligan v Ireland, Supreme sought the costs of the amend- satisfied that part of the delay in admissible against second applicant – Court, 24/10/2000 [FL3196] ments and any further costs aris- the execution of the warrants circumstantial evidence – speed – ing out of any adjournment arose out of an administrative alcohol consumption – refusal of trial thereby arising. Herbert J was breakdown in the relevant garda judge to give direction – whether COSTS satisfied that the proposed station. The delay in question sufficient to prove that dangerous amendments were necessary in was of a magnitude which was driving was one of causes of death – Litigation, practice and the interests of justice. Any prej- altogether excessive and consti- Road Traffic Act, 1961, section procedure udice thereby arising would be tuted a denial of the applicant’s 53(1) – Road Traffic Act, 1994, Company law – security for costs – countered by adjourning the date right to fair procedures. The section 49(1)(f)(I)

38 Law Society Gazette December 2000 Briefing

The applicants were convicted in his first examination when he McGuinness J was satisfied that empowered to extend time for service the Circuit Court of dangerous was taking the samples autho- no element of dominance could of affidavits – Offences Against the driving causing death and were rised by the Criminal Justice be said to have arisen between the State Act, 1939, section 7 – Courts each sentenced to a term of three (Forensic Evidence) Act, 1990. complainant and applicant which (Supplemental Provisions) Act, years’ imprisonment. In addition, The applicant contended that he would have inhibited the making 1961 – Rules of the Superior the second applicant was sen- was not cautioned by the doctor of the complaint. Hardiman J, Courts 1986, order 84, rules 20, 21 tenced to six months’ imprison- or the gardaí as to the conse- referring to the academic contro- The applicant had originally been ment for the unauthorised taking quences of a second examination versies surrounding the topic of returned for trial in the Circuit of a car, the sentences to run con- by the doctor or the use which ‘suppression of memory’, was not Court in error as the alleged currently. The charges arose out might be made of any informa- satisfied that the case exhibited offence could only be tried in the of a collision involving a car tion obtained as a result of it. any signs of dominion and in the Central Criminal Court. The being driven by the first appli- The Court of Criminal Appeal circumstances the applicant was DPP had then sought the matter cant and another car in which a rejected the argument that the entitled to the benefit of the pre- to be remitted to the District driver and a passenger were examination constituted an sumption of innocence. Court to be reconsidered. In the killed. A car driven by the second intrusion of the applicant’s con- JL v DPP, Supreme Court, High Court, McGuinness J grant- applicant was found near the stitutional right to privacy. The 06/07/2000 [FL3183] ed the order sought and the appli- scene of the first collision. The trial judge did not err in exercis- cant now appealed against that the applications sought leave to ing his discretion to admit evi- Imprisonment decision. The applicant argued appeal, arguing that the trial dence of the disputed examina- Habeas corpus application – that the DPP had been guilty of judge should have withdrawn the tion. The Court of Criminal administration of justice – procedures significant delay in initiating judi- case from the jury. The court Appeal so held in refusing the of High Court – whether detention cial review proceedings. The rejected the applications. In the application for leave to appeal. of applicant lawful – whether proce- applicant also complained in rela- case of the first applicant, the DPP v Murray, Court of dures of habeas corpus application tion to the extension of time trial judge was correct in con- Criminal Appeal, 12/04/99 unconstitutional – whether applicant granted by the High Court cluding that there were issues [FL2763] required to be physically present in regarding the service of affidavits. which should properly be deter- court for purposes of application – Keane CJ, delivering judgment, mined by the jury and he was Fair procedures Bunreacht na hÉireann 1937, rejected the arguments of the correct in refusing the applica- Right to expeditious trial – pre- article 40.4.2° applicant. The High Court judge tion for a direction. In the case of sumption of innocence – delay – The applicant had sought an was entitled to make the order the second applicant, the trial judicial review – sexual offences – enquiry under article 40 of the extending the time for making the judge was also correct in refusing significance of psychological assess- constitution into the lawfulness of judicial review application. a direction. The jury were enti- ment – repression of memory – his current detention. The appli- Although no order as to costs had tled to conclude beyond a rea- whether right to fair trial preju- cation had been refused by been made in the High Court, sonable doubt that his admitted- diced by delay in making complaint O’Neill J in the High Court in a Keane CJ was satisfied that the ly dangerous driving was a – whether delay inordinate and judgment delivered on 23 June DPP should be awarded the costs causative factor in the collision. inexplicable – whether delay ren- 2000. In this appeal, the applicant of the appeal. DPP v Lafferty and Porter, dered alibi defence unavailable – claimed that the procedure by DPP v Judge Hamill, Supreme Court of Criminal Appeal, whether applicant established as which his application was dealt Court, 11/05/2000 [FL3156] 22/02/2000 [FL2692] matter of probability serious risk of with by the High Court judge was unfair trial – Bunreacht na in breach of his constitutional Sentencing Evidence, sexual offences hÉireann 1937, article 38.1 right of access to the courts. In Plea in mitigation – forgery – Rape – evidence – sexual assault – The applicant had been charged addition, it was argued that the obtaining goods by false pretences – judges’ rules – conviction – leave to with sexual offences which applicant should have been pres- previous convictions of accused – appeal refused – whether leave allegedly occurred in one inci- ent in court for the purposes of whether sentence severe and excessive should be granted – whether trial dent committed on some date the application. McGuinness J, – whether role of accused warranted judge erred in admitting evidence of between 1979 and 1980. The delivering judgment, held that sentence imposed doctor – whether trial judge had cor- applicant initiated judicial the High Court judge had cor- The applicant had been convicted rectly charged jury – Criminal Law review procedures seeking to rectly determined the application. of a number of charges relating to (Rape) Act, 1981 – Criminal Law have the impending prosecution The applicant’s right of access to forgery and obtaining goods by (Rape) (Amendment) Act, 1990 – prohibited on the grounds of the courts had not been infringed. false pretences. The accused Criminal Justice (Forensic delay. In the High Court, The fact that the judgment was received a sentence of six years. In Evidence) Act, 1990 Geoghegan J refused the relief pronounced in open court met this application, the accused The applicant claimed that the sought by order dated 8 June the requirement that justice must argued that the trial judge in trial judge had erred in law and 1999 and the applicant appealed. be administered in public. imposing sentence had not paid on the facts in admitting the evi- The Supreme Court, all three Breathnach v Wheatfield, adequate attention to the dence of a doctor concerning the judges delivering separate judg- Supreme Court, 20/10/2000 accused’s capacity to rehabilitate injuries which he observed on ments, held that the applicant [FL3155] himself. The court held that no the lip of the applicant while in had established as a matter of error in principle could be found garda custody. The court was sat- probability that there was a seri- Practice and procedure in relation to the sentence isfied that the doctor would have ous danger of an unfair trial, Certiorari – judicial review – delay imposed. Accordingly, the sen- been entitled to give evidence of allowed the appeal and granted – order for return for trial made in tence of six years was affirmed and his observations in the course of the order of prohibition sought. excess of jurisdiction – whether court the application was dismissed.

39 Law Society Gazette December 2000 Briefing

DPP v Manning, Court of Court of Criminal Appeal grant- for the losses suffered. basis of gender – whether decision Criminal Appeal, 05/07/99 ed the application. A sentence of Furthermore, O’Neill J held that not to appoint applicant irrational [FL2787] nine years did not reflect the as the tribunal did not in his view – whether findings of fact by gravity of the entirely separate have the power to order the pay- Labour Court supported by evi- Sentencing, offences while offences of aggravated sexual ment of interest, the court dence – whether decision of on bail assault and false imprisonment. should not assume a greater Labour Court erroneous – Criminal law – sentencing – In addition, the respondent had jurisdiction than that of tribunal Employment Equality Act, offences committed whilst on bail – been convicted of rape on a pre- and declined to order the pay- 1977 consecutive sentences – sexual vious occasion and had received ment of interest. The claimant The applicant, a female, had offences –whether sentences opposed a sentence of six years’ imprison- would be awarded a total of applied for the position of the excessive – whether court should ment. A probation officer had £60,559. head of library services with interfere with sentences also assessed the respondent as ‘a MO’C v Minister for Health, her current employer. The The applicant had been charged very disturbed and dangerous High Court, Mr Justice applicant, who possessed a with sexual offences and was man’. The sentence was unduly O’Neill, 28/07/2000 [FL3164] number of relevant qualifica- awaiting trial. While on bail, the lenient, would be quashed and a tions, was shortlisted for the applicant committed further sentence of 12 years would be Practice and procedure, job but was ultimately unsuc- offences on the same victim. imposed in its place. taxation cessful and a male candidate The applicant was convicted and DPP v Melia, Court of Personal injuries – negligence – tax- was appointed. She presented a sentenced both in relation to the Criminal Appeal, 29/11/99 ation – damages – loss of earnings – claim of discrimination on the original sentences and the later [FL2693] whether plaintiff entitled to recover basis of gender to the Labour occurring sentences, the sen- full amount of wages, including Court which was assessed by an tences to run consecutively. taxes payable from defendant equality officer. The equality Counsel on behalf of the appli- DAMAGES The plaintiff had been injured at officer issued a recommenda- cant argued that the sentences the defendant’s workplace and as tion which found that the were excessive particularly in Hepatitis-C compensation a result had instituted proceed- applicant had not been dis- regard to the age of the appli- Negligence – personal injuries – ings. The plaintiff received pay- criminated against and the cant. The court held that the damages – causation – financial loss ments from his employer, the decision was upheld by the sentences as handed down by the – loss of earnings claim – employ- notice party, while he was out of Labour Court. The applicant trial judge could not be regarded ment – Hepatitis-C Tribunal – work, representing his loss of issued proceedings seeking as excessive and accordingly jurisdiction of tribunal – quantum wages. The plaintiff had under- declarations that the decision declined to interfere with them. – whether possible to compensate taken to refund these sums to the by her employer not to appoint DPP v Balfe, Court of claimant for loss of earnings – notice party should they be her to the position was unlaw- Criminal Appeal, 17/01/2000 whether cessation of employment recovered by way of damages. ful and sought to reverse the [FL2720] attributable to wife’s condition – The plaintiff sought to recover determination of the Labour whether tribunal had power to his loss of earnings from the Court. Quirke J held that both Review of sentence order payment of interest – Courts defendant and an order to this the equality officer and the Aggravated sexual assault – false Act, 1981 – Hepatitis-C Comp- effect was granted in the High Labour Court had carried out imprisonment – assault – guilty ensation Tribunal Act, 1997 – Court by Macken J, delivered 8 comprehensive investigations plea – whether sentence unduly Civil Liability (Amendment) June 1999. However, the pay- into the complaint. In addition, lenient – whether sentence reflected Act, 1964 ments in respect of PAYE, PRSI the findings of facts made by gravity of offences – previous rape The claimant’s wife had con- and pension contributions were the Labour Court and infer- conviction – Criminal Justice Act, tracted hepatitis-C and had been not allowed. The notice party ences drawn from them were 1984, section 4 – Criminal Justice awarded compensation by the appealed this finding to the reasonable based upon the evi- Act, 1993, section 2 hepatitis-C compensation tribu- Supreme Court. Keane CJ, dence before it. The applicant The respondent had pleaded nal. The claimant then brought delivering judgment, was satis- had not discharged the onus of guilty to a number of offences a claim for loss of earnings aris- fied that to allow the payments proving that the Labour Court and was sentenced by the ing out of having to curtail his in question would compensate had erred in law and the relief Central Criminal Court to nine teaching career in order to care the plaintiff for a loss which he which the applicant was seek- years’ imprisonment in respect for his wife. The claimant was had not suffered. There was no ing was refused. of three counts of aggravated also seeking interest pursuant to legal basis to allow the recovery Davis v DIT, High Court, Mr sexual assault and three years’ section 22 of the Courts Act, of such sums and accordingly the Justice Quirke, 23/06/2000 imprisonment in respect of 12 1981. The tribunal had refused appeal would be dismissed. [FL3161] G other counts including false the claim and the claimant Hogan v Steele and ESB, imprisonment and robbery, the appealed the determination of Supreme Court, 01/11/2000 The information contained here is sentences to run concurrently. the tribunal to the High Court. [FL3212] taken from FirstLaw’s Legal Cur- The final year of each sentence O’Neill J was satisfied that the rent Awareness Service, published was suspended. The DPP claimant’s decision to curtail and every day on the Internet at www. brought an application under subsequently retire from his EMPLOYMENT firstlaw.ie. For more information, section 2 of the Criminal Justice teaching career was necessitated contact [email protected] or Act, 1993 to have the sentences by his wife’s deteriorating Discrimination FirstLaw, Merchants Court, reviewed on the grounds that health. The claimant was there- Labour law – employment law – Merchants Quay, Dublin 8, tel: 01 they were unduly lenient. The fore entitled to be compensated equality – discrimination on the 679 0370, fax: 01 679 0057.

40 Law Society Gazette December 2000 Briefing Eurlegal

News from the EU and International Law Committee Edited by TP Kennedy, director of education, Law Society of Ireland The public policy defence to recognition and enforcement of foreign judgments

ne of the central objectives courts of one contracting state judgment is incompatible with recognising and enforcing the Oof the 1968 Brussels conven- acknowledge the decision of a the public policy of the enforc- judgment in England. tion on jurisdiction and the enforce- court in another contracting ing state. This is restricted to Even a judgment obtained ment of judgments1 is to create a state to be binding and enforce- circumstances in which a funda- fraudulently may still have to be free market in judgments. able. In practice, however, if mental principle of the national enforced. This can be seen in There is a presumption that a enforcement is not sought as law of the court in which recog- the English case of Interdesco SA judgment in a civil or commer- well, recognition is usually just nition is sought is in question. v Nullifire Ltd ([1992] 1 Lloyds cial matter given by the court of an incidental question in a dis- The Jenard report states that this Rep 180). The plaintiffs were another contracting state is to pute. The court which is asked to defence only applies in excep- manufacturers of intumescent be enforced. Only in exception- recognise a foreign judgment is tional circumstances. paint, which had special fire al circumstances will a judgment completely bound by that court’s There is no definition of protection properties. When debtor be able to prevent findings of facts. This may create public policy in the convention. heated, it expanded to form a enforcement of a judgment. difficulties, as a court may be The ECJ has stated that this is a protective covering over the The intent of the convention is asked to recognise a judgment very narrow exception. In Case painted surface and the longer it that a defendant must raise any that is fundamentally flawed. 145/86 Hoffman v Krieg ([1988] survived in a fire, the better jurisdictional challenges before The EU Commission has pro- ECR 645), the court held that protection it gave. Their best the court which adjudicated the posed that judgments should be the refusal to recognise a judg- selling product was marketed as matter. As a result, the defences automatically recognisable under ment based on public policy SS60, indicating that it gave allowed by the convention are article 26 on the basis of an should operate only in excep- protection for at least sixty min- very limited. The most restric- international presumption of tional circumstances. The case utes. The defendants, an tive of these was the defence regularity. The proposal envis- concerned the enforcement of a English company, entered a allowing an enforcing state to ages a certificate being issued by German maintenance order five-year distribution agree- refuse to enforce the foreign the court giving the judgment in against a husband in the ment with the manufacturers judgment on the grounds that it the state of origin, attesting that Netherlands. The husband had under which they were given was inconsistent with that state’s the judgment to which it relates obtained a divorce in the exclusive distribution rights in public policy. Almost all is enforceable. The court asked Netherlands. The court held the UK and Ireland for attempts to invoke this defence to enforce the judgment could that the public policy exception Interdesco’s paints. Subsequent- have been unsuccessful. It is not look behind the certificate. had no application here. This ly, the defendants terminated only in a recent decision that Review. Articles 29 and 34 was subsequently reflected in the agreement claiming that the European Court of Justice provide that under no circum- Societété d’Information Service Interdesco’s SS60 had failed to (ECJ) has indicated grounds on stances may a foreign judgment Realisation (SISRO) v Ampersand satisfy the UK’s standard for a which it would be willing to be reviewed as to its substance. It Software BV (29 July 1993, The 60-minute paint and was there- allow the invocation of this cannot be argued that a foreign Times). SISRO had obtained fore unmarketable. Interdesco judgment. court made a mistake of fact or judgment against Ampersand denied these claims, arguing Judgment. Article 25 of the law. and others in the Tribunal de that Nullifire was attempting to convention defines a ‘judgment’ Grand Instance de Paris for replace Interdesco and steal its as ‘any judgment given by a Defences against recognition infringement of copyright for market. The French Cour court or tribunal of a contract- and enforcement computer programs. The d’Appel ignored English tests ing state’. This definition The grounds on which a foreign defendants had alleged fraud on showing the product to be sub- extends to all forms of judg- judgment may not be recognised the part of the plaintiff. When standard. The plaintiffs applied ments in civil and commercial or enforced are set out in article the defendants sought to to the English courts for an matters given by a court in a 27. In brief, article 27 provides enforce the judgment in enforcement order. The defen- contracting state. for procedural defences – that England, the defendants again dant argued that the French Recognition. Article 26 pro- the originating document was argued that there had been judgment had been obtained vides that any judgment within not served in due time for the fraud on the part of the plaintiff. fraudulently. It said that it had the subject matter of the con- defendant to defend the original The Court of Appeal held that fresh evidence which had not vention given in a contracting proceedings or that the formali- where a foreign judgment was been produced to the French state can be recognised in any ties required by the convention allegedly obtained by fraud and court. This purported to show other contracting state without were not satisfied. The only sub- means of redress were available that Interdesco had been a party any special procedure. stantive defence allowed by the in the state of origin, there was to fresh tests which clearly Recognition occurs when the convention is that the foreign no breach of public policy in established that its paint was

41 Law Society Gazette December 2000 Briefing sub-standard. The English court contrary to public policy in eco- 28 March 2000) that the defence crepancy between the rules of rejected this defence of public nomic matters. They argued that has been successfully raised. Mr the forum where the judgment policy based on fraud. It held EU law on free movement of Bamberski is a French man and was given and the enforcing that fundamentally different cri- goods and competition confirms Mr Krombach is German. forum cannot be taken into teria apply in convention and the approach taken by Italian Krombach had been the subject account nor can any alleged non-convention cases. It held law, which does not recognise of a preliminary investigation in inaccuracies in findings of law that where a court has ruled on the existence of industrial prop- Germany following the death in or fact. the same matter that a party erty rights in spare parts for cars. Germany of a 14-year-old To successfully invoke article challenges on grounds of fraud, The ECJ emphasised that the French girl. The investigation 27(1), there must be a manifest the convention estops the public policy defence in article was discontinued. Bamberski breach of a rule of law regarded English court from reviewing 27(1) of the convention is inter- was the girl’s father. At his as essential in the legal order of the judgment of the other court. preted strictly and may be relied request, the French courts the state in which enforcement The remedy lies with the foreign on only in exceptional cases. A opened an investigation. They is seised. The right to be court and not the English court. national court may only use the then committed Krombach for defended is a fundamental right In Case C-38/98 Régie defence where recognition or trial. Krombach did not appear deriving from the constitution- nationale des usines Renault SA v enforcement of the foreign judg- to defend the proceedings. The al traditions common to the Maxicar SpA, Orazio Formento, ment would infringe a funda- French court held him in con- member states. The European the ECJ once again applied the mental principle of national law. tempt and ordered him to pay Court of Human Rights has public policy defence (judgment This infringement would have to 350,000 francs compensation to ruled that in criminal cases the of 11 May 2000). Renault had be a manifest breach of a rule of Bamberski. Bamberski applied right of the accused to be obtained a judgment in France law regarded as essential in the to enforce the judgment in defended by a lawyer is one of for forgery against an Italian legal order of the state in which Germany. Krombach appealed the fundamental elements in a company, Maxicar, and an Italian enforcement is sought or of a the German enforcement order. fair trial and that a person does national, Orazio Formento. Mr right recognised as fundamental His first defence was that the not forfeit entitlement to such a Formento had manufactured within that legal order. In this judgment ran counter to right simply because he is not and marketed body parts for case, the contention is that the German public policy and thus present at the hearing. Thus, an Renault cars. Maxicar was a French court, in giving judg- should not be enforced – article enforcing court is entitled to company of which he was a ment, erred in applying certain 27(1) of the Brussels convention. invoke article 27 and hold that a director. The French award for rules of EU law. However, the He based this argument on the refusal to hear the defence of an 100,000 francs was in relation to ECJ held that recognition or grounds that the French courts accused not present at a hearing forgery in manufacturing and enforcement could not be could base their jurisdiction on is a manifest breach of a funda- marketing body parts for refused on the ground that the the nationality of the victim of mental right. G Renault vehicles. Renault enforcing court considers that an offence. The ECJ rejected applied to enforce that judgment national or EU law was misap- this argument. It pointed that Footnote in Italy. The Italian court plied in the decision it is asked to out that, under the convention, 1 For more general commentaries refused to enforce it as it was a enforce. In such a case, it must the court before which enforce- on the convention, see Collins, criminal judgment and the be considered whether the sys- ment is sought cannot review The Civil Jurisdiction and application to enforce was not tem of legal remedies in each the jurisdiction of the state of Judgments Act 1982, (1983) made within the time limit contracting state, together with origin. Butterworths; Kaye, Civil juris- required by the Italian code of the preliminary ruling procedure Krombach had also argued diction and enforcement of judg- criminal procedure. provided for in article 234 of the that he had not been allowed ments, (1987) Professional Renault argued that the con- treaty, affords a sufficient guar- defend the proceedings in Books; Lasok & Stone, Conflict of vention applied in that it was a antee to individuals. France unless he appeared in laws in the European Communities, civil judgment, albeit delivered person and that this was con- (1987) Professional Books; and by a criminal court. The defen- Successful application trary to public policy. The ECJ Mayss & Reed, European business dants argued that the judgment of the defence referred to article 29 and 34(3) litigation, (1998), Ashgate. was irreconcilable with a deci- It is only with the recent decision which establish that a foreign sion given in a dispute between in Case C-7/98 Dieter Krombach judgment cannot be reviewed as TP Kennedy is the Law Society’s the same parties in Italy and was vAndré Bamberski (judgment of to its substance. Thus, a dis- director of education. Law Society Bushmills Millenium Malt 25 YEARS OLD £85 (plus £9 post and packaging) First come, first served. Only one bottle per member Contact Alan Greene, Bar Manager, Law Society of Ireland, Blackhall Place, Dublin 7, tel: 01 6724919, e-mail: [email protected] MEMBERS ONLY SPECIAL OFFER

42 Law Society Gazette December 2000 Briefing Recent developments in European law COMPETITION two or more member states enforcement of obligations under agement and the same premises may agree to set up a joint the directive. Applications to the and are engaged in the same The EU Commission has asked investigation team for a specif- appropriate body may be by the work makes no difference in this Microsoft to explain its alleged ic purpose and a limited period person discriminated against or regard. The court then turned to discriminatory licensing practice to carry out criminal investiga- by bodies with a legitimate inter- an examination of the criteria for and refusal to supply essential tions. This process is available est in enforcement. Member determining the existence of a information on its Windows oper- in the case of cross-border states are also required to desig- transfer. The decisive criterion is ating system. In August, the criminal conduct or otherwise nate one or more bodies with the whether the entity in question Commission sent a statement of where co-ordination is required specific function of promoting retains its identity – as indicated objections to Microsoft. Microsoft •A member state may request equal treatment. Once a person by the fact that its operation is holds a market share of approxi- covert investigations to be car- claiming discrimination can actually continued or resumed. mately 95% for personal comput- ried out in another member demonstrate facts from which The court held that in this case er operating systems. state. unequal treatment can be this criterion was satisfied. assumed, the burden then switch- CRIMINAL LAW The convention also provides for es to the defendant to demon- FREEDOM OF the interception of telecommuni- strate that there has been no ESTABLISHMENT On 29 May 2000, the council cations. One member state may breach of the directive. The direc- adopted a Convention on mutual request another to intercept tive also requires the imposition Case C-355/98 Commission of assistance in criminal matters. transmissions made within its ter- of sanctions. Their form is left to the European Communities v The convention applies to criminal ritory and to retransmit or record the member states but the direc- Kingdom of Belgium, judgment of proceedings of all types brought the transmission to the request- tive specifically states that com- 9 March 2000. Belgian law in member states. It requires a ing member state. This can be pensation is one possibility. The restricted the operation of security state which receives a request for done by telecommunications serv- sanctions adopted are to be firms, security systems firms and assistance from another to com- ice providers. If interception in ‘effective, proportionate and dis- internal security services. These ply as soon as possible and in another member state is possible suasive’. firms were required to have a accordance with procedures laid without the assistance of that place of business in Belgium. down in the convention. Requests state, it has the right to be Transfer of undertakings Managers and employees were are normally to be made through informed that interception is con- Case C-234/98 GC Allen and Ors required to reside in Belgium. judicial authorities. Some templated and also the right to v Amalgamated Construction Co Foreign companies providing such requests, such as the transfer of grant or refuse its consent. Ltd, judgment of 2 December services required Belgian authori- persons, must be made through 1999. Allen was a mineworker. sation and every person carrying government authorities. Forms of EMPLOYMENT He was employed by out security services in Belgium assistance that can be requested Amalgamated Construction Co required a Belgian identification include: Equal treatment (ACC). ACC is a wholly-owned sub- card. The ECJ held that these • The return of articles obtained Directive 2000/43/EC to imple- sidiary of AMCO Corporation. requirements breached a number by criminal means to their orig- ment the principle of equal treat- AMCO has 12 subsidiaries includ- of treaty provisions on free move- inal rightful owners, unless a ment between people irrespective ing AM Mining Services Ltd ment of persons. The condition bona fide third party has of racial or ethnic origin was (AMS). ACC and AMS are distinct that security firms have a place of obtained rights over those arti- recently enacted. It is to be imple- legal entities but have the same business in Belgium violates the cles mented by 19 July 2003. It sets management and share adminis- freedom to provide services. The • The temporary transfer of peo- down certain minimum standards trative and support functions with- ECJ rejected the Belgian defence ple held in custody for the pur- which states are obliged to in the AMCO group. ACC was car- that a security firm can be a gen- poses of investigation. This observe. The directive prescribes rying out work at a colliery in uine and sufficiently serious requires prior agreement direct or indirect discrimination on Yorkshire. It sub-contracted work threat to public safety and public between the two states con- grounds of racial or ethnic origin. to AMS. Workers of ACC were dis- policy as obviously unfounded and cerned. The period of transfer It relates to conditions for access missed and hired by AMS. Over a unproven. The residence require- is to be deducted from any cus- to employment, education and period of time it was difficult to ment for managers and employ- todial sentence served by the trade union membership. It also discover whether employees were ees was held to breach freedom of person transferred outlaws such discrimination in engaged by ACC and AMS. The establishment provisions. The • The holding of a hearing by relation to employment and work- ECJ was asked whether the requirement for Belgian authorisa- video-conference. This is to ing conditions, social protection Transfer of undertakings directive tion was held to contravene the allow expert or witness evi- and access to and supply of applied to transfers between freedom to provide services, as dence to be given in this man- goods and services. The directive undertakings in a group which was the requirement that staff of ner. The witness is summoned allows for positive discrimination have the same ownership, the these companies required Belgian by the judicial authorities in the in favour of minorities. It also per- same management and are identification cards. The formali- state in which he is present mits different treatment as engaged in the same work. The ties required to obtain such a card and evidence is given in accor- regards occupation where it is court held that it could apply to a makes the provision of services dance with the domestic proce- based on a characteristic related transfer between two subsidiary across borders more difficult. dural rules of that state to racial or ethnic origin which is a companies, which are distinct • The hearing of a witness or genuine occupational require- legal persons each with specific LITIGATION expert by telephone confer- ment. Member states are employment relationships with ence, subject to his agreement required to establish judicial or their employees. The fact that the Brussels convention • The competent authorities of administrative procedures for the companies share the same man- Article 16(1)(a) of the convention

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COURTS AND COURT OFFICERS ACT, 1995 THE JUDICIAL APPOINTMENTS ADVISORY BOARD APPOINTMENT OF ONE JUDGE OF THE CIRCUIT COURT otice is hereby given that one new Judicial vacancy exists in the Office of NOrdinary Judge of the Circuit Court and that the Minister for Justice, Equality and Law Reform has requested the Board under Section 16 of the Act to exercise its powers under that section and to make recommendations pur- suant to it. Practising Barristers of Solicitors who are eligible for appointment to the Office and who wish to be considered for appointment should apply in writing to the Secretary of the Board, Green Street Courthouse, Green Street, Dublin 7, for a copy of the application form. Completed forms should be returned to the Board’s Secretary on or before Friday 15th December 2000. Applications already made in respect of vacancies in the Office of Ordinary Judge of the Circuit Court will be regarded as applications for this and all sub- sequent vacancies in the Circuit Court to 31st December 2001. It should be noted that this advertisement for appointment to the Office of Ordinary Judge of the Circuit Court applies not only to the present vacancy now existing, but also to any future vacancies that may arise in the said Office during the period to 31st December 2001. The application will remain valid to that date unless and until the Applicant signifies in writing to the Secretary of the Board that the application should be withdrawn. Applicants may, at the discretion of the Board, be required to attend for interview. Canvassing is prohibited. Dated the 23rd November 2000.

BRENDAN RYAN, B. L., SECRETARY, JUDICIAL APPOINTMENTS ADVISORY BOARD. Briefing gives exclusive jurisdiction to the considered by the European operation against transactions 141, arguing that they had been court of the place where immov- Parliament. On 21 September with consumers domiciled in par- unlawfully excluded from member- able property is located in disputes 2000, it proposed an amended ticular member states’. The origi- ship of occupational pension concerning tenancies of such prop- text. The parliament has recom- nal proposal was quite controver- schemes. The pension schemes erty. This article was considered by mended deferral of the entry into sial and parliament is endeavour- were amended to ensure that the ECJ in Case C-8/98 force of the regulation until a full ing to avoid giving consumer pro- part-time workers were free to Dansommer A/S v Andreas Götz regulatory regime is in place for tection to consumers who pur- join them. The claimants sought (judgment of 27 January 2000). electronic commerce. The regula- chase a product after encounter- recognition of their entitlement to Dansommer is a Danish national tion is due for consideration by ing a passive website. Parliament retroactive membership of the and Götz is a German national res- the council in December. The has also introduced a new article schemes in some cases for peri- ident in Germany. In 1995, Götz most significant amendments allowing consumers to agree that ods extending further back than 8 rented a house in Denmark from relate to the consumer protection a dispute can be referred to an April 1976. The ECJ considered a Dansommer for his holidays. A provisions. The scope of the con- extra-judicial dispute resolution number of questions. The first Danish individual owned the house sumer contract provision was system. This is restricted to con- was a national rule requiring a and Dansommer acted as an inter- extended by the draft regulation tracts concluded by electronic claim for membership of a pen- mediary. The rental included a pre- to give consumers better protec- commerce, where the consumer sion scheme to be brought within mium for insurance to cover the tion. The consumer can sue in his was made aware of the provision six months of the relevant cost in the event of cancellation of own domicile in respect of a con- prior to concluding the contract, employment ending. The court the contract. After his occupancy, tract for the sale of goods on is given a link to the website of held that this was not contrary to Dansommer sued Götz, as he had instalment credit terms or in the accredited extra-judicial reso- EU law, provided that it was not failed to clean the house properly respect of a credit agreement lution system and where he less favourable than limitation before his departure and had dam- made to finance the sale of expressly agreed (he must posi- periods based on domestic law. aged the carpets and the oven. goods (as at present). The regu- tively accept or reject the clause). The ECJ, however, held that a rule The ECJ was asked whether an lation then goes on to provide limiting a claimant’s pensionable action for damages for taking poor that the consumer provisions Limitation periods for actions service to two years prior to the care of premises brought by a pro- apply if: ‘In all other cases, the asserting breaches of EU law claim was contrary to EU law. The fessional tour operator came with- contract has been concluded with Case C-78/98 Shirley Preston ECJ then moved to consider the in article 16(1)(a). The court held a person who pursues commer- and Ors v Wolverhampton criteria for determining whether that it did, as the proceedings were cial or professional activities in Healthcare NHS Trust and Ors, procedural rules applying to pro- over a partial failure to perform a the member state of the con- Dorothy Fletcher and Ors v ceedings based on an article of tenancy agreement. The tenant sumer’s domicile or, by any Midland Bank plc, judgment of 16 the treaty were less favourable was obliged to maintain the prop- means, directs such activities to May 2000. In previous decisions, than similar proceedings of a erty let in a proper condition and to that member state or to several the ECJ had held that the exclu- domestic nature. The ECJ held repair any damage he caused to it. countries including that member sion of part-time workers from that it is for the national court to Exclusive jurisdiction is conferred state, and the contract falls with- pension schemes could be con- work out which domestic actions on the court where the property is in the scope of such activities’. sidered as indirect gender dis- are equivalent to proceedings for located as it is best placed, for rea- Parliament has proposed the fol- crimination, contrary to article a breach of a treaty right. In doing sons of proximity, to ascertain the lowing addition: ‘The expression 141 of the treaty. It had also held this, the national court must con- facts. Ancillary provisions relating directing such activities shall be that the direct effect of the treaty sider whether the actions con- to insurance, which are not the taken to mean that the trader article could be relied on in order cerned are similar as regards subject of the dispute, do not must have purposefully directed to claim equal treatment retro- their purpose, cause of action affect the nature of the tenancy as his activity in a substantial way to spectively in relation to the right and essential characteristics. In a tenancy of immovable property. that other member state or to to join a pension scheme and deciding whether the procedural several countries including that could be relied on from 8 April rules are equivalent, the national Replacement of Brussels member state. In determining 1976, the date of judgment in court must verify objectively convention whether a trader has directed his Defrenne v SABENA, where the whether the rules are similar, tak- It is proposed to replace the con- activities in such a way, the court had held that article 141 ing into account the role played by vention with a Regulation on juris- courts shall have regard to all the had direct effect. Following these those rules in the procedure as a diction and enforcement of judg- circumstances of the case, cases, 60,000 part-time workers whole, as well as the operation of ments in civil and commercial including any attempts by the in the UK began proceedings. that procedure and any special matters. The regulation has been trader to ring-fence his trading They sought to rely on article feature of those rules. G

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45 Law Society Gazette December 2000 IN ASSOCIATION WITH BUTTERWORTHS (IRELAND) LIMITED ...lectures for solicitors in practice LECTURE SCHEDULE

TOPICS: ■ The Solicitors’ Instruction Fee: Maximisation and Justification – Tony Halpin (Author, with Master Flynn, “The Taxation of Costs” Sweet & Maxwell (1999) ■ Guidance on the giving of undertakings – Patrick O’Callaghan (Author “The Law on Solicitors in Ireland” Butterworths 2000) ■ Legal issues for solicitors in partnership – Michael Twomey (Author “The Law of Partnership” Butterworths 2000)

VENUES AND DATES:

Lecture Fee: IRP 130.00 plus 1 2 February 2001 – Tralee – Great Southern Hotel VAT @ 21% = IRP 157.30 2 9 February 2001 – Sligo – Silver Swan Hotel. (Materials Included) ■ All lectures to take 3 16 February 2001 – Dundalk – Derryhale Hotel. place on Friday mornings from 9.30am to 4 23 February 2001 – Limerick – Jurys Hotel 1.30pm. ■ Coffee mid-morning ■ 5 2 March 2001 – Dublin – Merrion Hotel Cheques/P.O. made payable to: Amorset 6 9 March 2001 – Cork – Hayfield Manor Limited, Box 3047, Law Library, Four 7 16 March 2001 – Galway – Ardilaun Hotel – Glencairn Suite Courts, Inns Quay, Dublin 7 8 23 March 2001 – Kilkenny – Hibernian Hotel People and places Going Dutch with the IBA

ounded in 1947, the markets for satellite ventures FInternational Bar and bio-ethics were aired and Association includes among its discussed at length. membership 178 national bar In the evenings, delegates associations and law societies enjoyed the unending together with more than hospitality of the local firms 16,000 individual lawyer and bar associations from members from some 183 around the world. Indeed, the countries around the world. It Law Society president hosted a offers 55 committees and 16 most enjoyable reception. regional and special interest IBA conferences fulfil one of Roscommon Bar Association groups such as the Academics’ the association’s most At a meeting of the Roscommon Bar Association were (front row, left to right) treasurer Marie Connellan, president Peter Jones, secretary Brian Forum, Eastern European important objectives, namely, O’Connor, then Law Society President Anthony Ensor and Director Forum and Women’s Interest the promotion of useful General Ken Murphy; (middle row) Carol Ballantyne, Joseph Caulfield, Group. contacts and networking Dermot M MacDermot, Rebecca Finnerty, John Murphy, Declan On 17 September, almost between lawyers all around the O’Callaghan and Paul Wynne; (back row) Kenneth Dolan, Sean Mahon, Conleth Harlow, F Gerard M Gannon, Padraig Kelly and Terence O’Keeffe 4,000 of the world’s leading world. And for firms that want business lawyers descended on to compete with the big boys Amsterdam for the IBA’s 2000 rather than effecting a merger, conference. The Irish the IBA opens the door to a delegation included the then global network. There are Law Society President Anthony numerous benefits to being Ensor, Director General Ken represented in every port and Murphy and Director of Public being able to tap into expertise Prosecutions James Hamilton, in other jurisdictions when together with barristers, judges needed. International contacts and practitioners from the most are unquestionably valuable, influential corporate and not least in terms of securing commercial firms. referral work. Days were consumed with Irish clients have an working sessions (of which international outlook and there were in excess of 140). therefore expect an Sligo solicitors meet the top brass Regardless of one’s area of international service. They are Law Society Director General Ken Murphy and then President of the Law specialisation, there were leading their law firms into Society Anthony Ensor pictured at a meeting with the Sligo and County sessions of interest to every global markets where Solicitors’ Association: (front row, left to right) Fiona McGuire, Judge lawyer. Issues as diverse as international networks are Thomas A Fitzpatrick, Sligo bar president Thomas Martyn, Anthony Ensor, Ken Murphy, Sligo bar secretary Leonie Hogge and Michele environmental programmes in crucial. O’Boyle; (back row) Michael Mullaney, Peter M Martin, Mark Mullaney, banking, websites for the travel Niamh Herron, O’Donnell Michael Quigley, Dervilla O’Boyle, John Creed, John Bourke, Brendan industry, access to capital Sweeney Johnson and Anne Hickey

Called to the bar The presidents and secretaries of the bar associations pictured at a recent meeting in Blackhall Place

47 Law Society Gazette December 2000 People and places

Southern comfort The usual suspects Gathered for the Southern Law Association’s recent AGM held in the Beamish & Crawford EU Commissioner David Byrne SC (left) at the launch brewery in Cork were: (front row, left to right) Sean Durcan, Patrick Casey, Law Society of Criminal liability, written by Professor Finbarr Director General Ken Murphy, then Law Society President Anthony Ensor, SLA president McAuley (centre) of UCD’s Law Faculty and the Simon Murphy, secretary Jerome O’Sullivan and Fiona Twomey; (middle row) Michael Joyce, University of Limerick’s J Paul McCutcheon Michael Enright, Richard Neville, Patrick Dorgan, Eamonn Murray, Ann Hewetson, Tom Coughlan, Phil McCarthy, James Donegan, Clifford O’Donnell and Patrick Bradley; (back row) Miriam Murphy, Don Crewe, Philip O’Leary, Frank Joyce, Colm O’Riain, Kevin Crowley, Paul Clune, Patrick Mullins, Aileen Walshe and Ray Glynn

Clare Law Association Assembled for a recent meeting of the Clare Law Association in Ennis were: (front row, left to right) Brian McMahon, Karina Mannion, Treasurer Siobhán Doohan, then Law Society It’s like a jungle out there President Anthony Ensor, Association President John Casey, Law Society Director General Rory O’Donnell, chairman of O’Donnell Sweeney, Ken Murphy, Association Secretary Mairéad Doyle and Shane O’Brian; (back row): David Solicitors, shows Attorney General Michael McDowell Casey, Niall Casey, Marie Keane, Frank Doherty, Ruth Carolan, John Shaw, Mary Nolan, around the firm’s new offices at the Earlsfort Centre Paul Toohy and Risteard Crimmins in Dublin’s Earlsfort Terrace NEW YORK BAR COURSE PROGRAMME 2001 Become an American Attorney in 6 months! If you are a solicitor or barrister or law graduate you may wish to consider qualifying • NEW YORK BAR AND CALIFORNIA BAR at an American Bar and adding the title “Attorney-at-Law” to your credentials. EXAM PREPARATION Opportunities both in international organisations or in the increasing number of US firms who have a presence in Europe are far more available to those with a US qualifi- • VENUE - UNIVERSITY COLLEGE DUBLIN, cation. Post-graduate law students will undoubtedly make themselves more marketable FACULTY OF LAW, ROEBUCK CASTLE, in a competitive legal market place with an international qualification included in their DUBLIN 4 curriculum vitae. • GENUINE AMERICAN COURSE LECTURES With the convenience of a common language, and a legal system based on Common AND MATERIALS Law, a US qualification is far easier to achieve than you might have first thought. Delivered by Oliver J Connolly, an Irish Lawyer and New York Attorney, in collabora- • WEEKEND LECTURE COURSES: tion with Central Law Training, the largest organisation providing Post Qualification INTENSIVE FOUR-MONTH PROGRAMME training to lawyers in the UK and BAR/BRI, America’s premier Bar provider. Success in an American Bar examination will: • HOME STUDY PROGRAMME ALSO AVAIL- • ENHANCE YOUR MARKETABILITY ABLE FOR NEW YORK AND CALIFORNIA • RAISE YOUR PROFESSIONAL PROFILE STATE BARS • EXTEND YOUR EXPERTISE • MARCH 2001 FOR END OF JULY 2001 EXAM For full details of the course programme, please contact the Course Director at the numbers shown below.

Telephone the Course Director Mr. Oliver J Connolly MA, LLB, Attorney-at-Law on (01) 8174424 email: [email protected]

48 Law Society Gazette December 2000 People and places

Room with a hue The West Cork Bar Association recently hosted a well attended meeting in Roscarbery with Law Society Director General Ken Murphy, and then Law Society President Anthony Ensor: (front row, left to right) Geraldine Crean, vice-president Fachtna McCarthy, Anthony Ensor, president Flor Murphy, Ken Murphy, Aine O’Donovan, Mary Jo Crowley, Edward O’Driscoll and Roni Collins; (middle row, left to right) treasurer Veronica Neville, Malachy Boohig, Ted Hallissey, Virgil Horgan, Myra Dinneen, Eamonn Fleming, Jim Long, secretary Colette McCarthy, Ray Hennessy, Celine Barrett, Con Murphy, Flor McCarthy, Helen O’Hea and Richard Barrett; (back row, left to right) Diarmuid O’Shea, Gerard Corcoran, Fergus Appelbe, Paul O’Sullivan, Mary Hayes, Marguerite Ryan, Dan Murphy, Jim Brooks and Michael Purcell

Now, about those Eircom shares … Cork law firm Ronan Daly Jermyn recently organised a conference on public-private partnerships, chaired by Dick Spring TD. Pictured with the Turn up for the books former Labour Party leader are (from left) Eamonn Kearns, head of the The Southern Law Association president Simon Murphy presents Sister department of finance’s PPP unit, solicitor Finola McCarthy, head of Fionnuala O’Sullivan of St Patrick’s Hospice with a £16,500 cheque, Ronan Daly Jermyn’s PPP advisory unit and the firm’s senior partner as Michael Enright (left) and Sean Durcan look on. The cheque Frank Daly, a former president of the Law Society represents contributions from Cork solicitors towards the opening of a library in the hospice

Hello, sailor! Tipp top conference Gathered for the launch of the second edition of Ireland and the law of Pictured at a recent conference organised by the Tipperary and Offaly the sea (left to right) are author Clive Symmons, Commander Gene Ryan, (Birr Division) Sessional Bar Association are Marian Gleeson, Billy captain of the LE Eithne, Round Hall Publishing’s Catherine Dolan, and Gleeson, Pat McArdle, Pat McDermott and Philip English Sean Dublin Bay-Rockall Loftus, guest speaker at the event

49 Law Society Gazette December 2000 People and places

OBITUARY Professor JMG Sweeney (1922-2000)

rofessor JMG Sweeney, solicitor, mastery of, real property law. Pteacher, scholar, writer and friend He encouraged distinguished lawyers to many, both in and outside the law, to visit and lecture at NUI Galway. He died on 1 October 2000. Emeritus had his own way of encouraging professor of common law at the students to attend the visitor’s lecture. I National University of Ireland in remember Mr P St J Langan of Galway, Professor Sweeney was a Lincoln’s Inn, the acknowledged author beacon of light in difficult times. He and editor of legal texts, who visited the kept the torch of legal learning alight Faculty of Law on 1 June 1973 to in the West of Ireland when a deliver a paper on obscenity and the prevailing wind could easily have law. Professor Sweeney wrote to his law extinguished that light. students informing them of the lecture Joseph MG Sweeney was born on 9 and stating that as the visiting lecturer December, 1922, in Galway. Rockwell would analyse critically the College in Cashel, Tipperary, was his enforcement of morals by the law, the alma mater during his secondary school years and Patrick lecture would be of the ‘greatest possible interest’ to students Hillery, later President of Ireland, was a good friend there. of ‘jurisprudence, constitutional and criminal law’. When the The intellectual ability of Joe Sweeney was evidenced by a professor who had a say in setting examination papers wrote first-class honours BA degree in French and Spanish in advising students using the words ‘greatest possible interest’, University College, Galway, in 1944 and the award of the B students took heed. Comm degree that same year. He was awarded a scholarship Professor Sweeney had a passionate devotion to justice and and subsequently studied for the LLB (post-graduate law clarity. With resources of will and commitment, he wrote in degree) at University College, Dublin, earning a first-class plain words and his teaching translated difficult concepts into honours distinction in November 1946. He was awarded the plain speaking. This achievement represented respect for his silver medal for Irish debate in the Solicitors’ Apprentices students, truth and scholarship that may be characterised as a Debating Society in May 1946. kind of love. His writing is published in The Irish Jurist, the Commencing practice as a solicitor in 1949, he combined Gazette and other publications. legal practice with an interest in academic law and teaching. He Most of all, Joe Sweeney gave us an example of integrity, was appointed head of the Law Department at University honesty and dedication to work, family and principle. That College, Galway, in 1966 and subsequently professor of example is a permanent legacy to the Sweeney family and those common law at the college until he retired in 1987. whom the professor taught. He was painstakingly fair, a true Teaching was a vital part of Joe Sweeney’s life. He cared legal craftsman in the tradition of the dictum of Judge Learned deeply about his students and was always conscious of the Hand: ‘It is as craftsmen that we get our satisfactions and our demands on law students pursuing the LLB degree in Galway pay’. who attempted to combine university courses with the Many benefitted from his love for, and dedication to, areas necessity to pass stringent professional examinations elsewhere. outside of the law. He was a noted trainer of the Irish red setter Professor Sweeney was associated with many of the greats of and received many awards at national field trials. He promoted the legal profession who acted as external examiners in papers the revival of the Irish red and white setter and enjoyed set by him for faculty examinations. Ronan Keane, now chief training spaniel pointers. justice of Ireland; Professor RFV Heuston; Professor JAC As the sky darkened somewhat in terms of his health, Joe Thomas; Professor Alan Watson and Professor Paul O’Higgins Sweeney carried on bravely as before, working and writing, a were among the external examiners in Galway in the 1970s. devoted husband and father, and a mentor to others interested Few lawyers can claim knowledge of, or an expertise in, as in law and writing. many diverse fields of law. Roman law, international law, He is survived by his wife, Eileen, and four children, three of jurisprudence, real property and personal property were among whom are solicitors: Joe (O’Donnell Sweeney, Dublin), David the subjects examined by Professor Sweeney. I recollect in the (Sweeney McGann, Limerick), Violet (Harrison O’Dowd, 1970s the professor’s interest in such topics as the concept of Limerick) and Raymond. objective truth in legal theory; canons of statutory I will close by echoing the words of Shakespeare: ‘He was a interpretation; the relationship between law and morality; the man, take him for all in all, I shall not look upon his like Jewish contribution to law, particularly natural law; legal again’. positivism; privity of contract in Roman law and ownership in classical and Justinianic law. He had a particular interest in, and – Eamonn Hall

50 Law Society Gazette December 2000 Apprentices’ page SADSI

Solicitors Apprentices Debating Society of Ireland Ring out the old, ring in the new

vents in Galway, Limerick, Law Society’s Education Com- the recent production of Two ensure a more balanced ECork and Dublin – mittee. Work in progress was enjoyed by a huge audience committee in years to come. together with a Careers Day on includes the Welfare report, of apprentices. Clodagh The students of the Bastille Day, a great ball in which proposes that a code of Beresford as debating convenor Honourable Society of King’s Killarney and the GAA conduct be inserted into the re-established the society’s Inns have also moved closer triumph of apprentices over indenture deed, and a SADSI superiority over the King’s Inns through common social solicitors – have ensured that campaign to change the out- with a superb victory by Ronan evenings and debating events most apprentices will dated terminology of master McSweeney and Louise Rouse (hopefully in preparation for remember what SADSI did for and apprentice. in the maiden John Edmund the future merger of the them this year. The status of apprentices Doyle Memorial Debate. professions). In truth, SADSI’s most before the courts will be The main goal this year was I would like to thank every memorable achievement in the determined by year end and to establish SADSI as a single member of this year’s last 12 months has been the details will be circulated to all, credible, representative society committee for their never- increase in the recommended along with a guide on how to for apprentices, and it is hoped ending enthusiasm and rate of pay for apprentices, an benefit from newly-formalised this goal was achieved by the commitment to the cause, and, unprecedented rise which rights. Drama has remained numerous and well-supported finally, wish the new auditor finally came about thanks to a strong this year, thanks to the activities we ran throughout the very best of luck in 2001. huge effort by the SADSI efforts of the SADSI drama co- the year. The proposed Committee in lobbying the ordinator, Ronan O’Brien, and constitutional changes will Keith Walsh, outgoing auditor Election candidates In appreciation Challenging times team s you read this, the he SADSI 2000 Acampaign for auditor will Tcommittee wish to be in full swing. The three extend Christmas greetings contenders are: John Connellan and thanks to all those who (February 2000 professional have assisted the committee practice course, education rep), this past year. In particular Claire O’Regan (October 2000 we wish to thank Education PPC, education rep) and Committee Chairman Patrick Sweeney (October 2000 Michael Peart, Law Society PPC). US election-style Director General Ken disputes are already in evidence Murphy, Director of and William Abrahamson, Education TP Kennedy and auditor of the debating society Apprenticeship Officer Three wise men? for King’s Inns students, has The contestants representing the Law Society on Challenging times. Grainne Butler for their already been called in to No extra points for guessing who’s who support and assistance adjudicate a number of throughout the year. ighty apprentices entered was also a winner, as all funds constitutional points. The We would also like to Ethe SADSI table quiz to raised went towards Eleanor’s SADSI AGM will be held on particularly thank our main determine who would represent desert walk in aid of Simon. 7 December. sponsors, Osborne the Law Society on Challenging The first round of the televis- Recruitment and Ulster Bank times. Following 16 rounds of ed competition was recorded on Limited, and our many other fiendish questions devised by 21 November by RTÉ and the PROFESSIONAL PRACTICE sponsors, including Evans & Eleanor Edmond and Jonathan opposition were NUI, Galway. REPS FOR THE OCTOBER 2000 COURSE Company and Rochford Whisker, the winners were The Gazette has been sworn to Brady, for the financial Kevin Ennis, Ian Larkin and secrecy by RTÉ, so you’ll have Education: Claire O’Regan, support they provided for the Karl Gordon (all on the current to tune in over the coming Patrick O’Riordain, Zoe Smith events we organised during PPC). The Simon Community weeks to see how the boys fared. Social: Conor Delaney, Mark the year. We also wish to Bairead, Aoife Gibson acknowledge with thanks the The education reps and the staff of the Law School will time given by all those who Santa comes to SADSI participate in the Staff Student took part in Career The SADSI Christmas party will be held in the new student bar, Liaison Committee, designed Blackhall Place, on 13 December from 8:30 pm. All apprentices and Development Day 2000. to address the needs of Ann Brennan friends welcome. apprentices

51 Law Society Gazette December 2000 ORDER YOUR COPY OF THE LAW SOCIETY YEARBOOK & DIARY N O W A N D

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LOST LAND Townland of (1) Cloghaunsavaun CERTIFICATES and Barony of Moyarta; Area: LawSociety 0.6702 hectares; Co Clare Gazette Registration of Title Act, 1964 Regd owner: Kenneth and Fiona An application has been received Brady, 62 Tullyvarraga Crescent, from the registered owners men- Shannon, County Clare; Folio: ADVERTISING RATES 19567F; Lands: Townland of (1) tioned in the schedule hereto for the Advertising rates in the Professional information section are as follows: issue of a land certificate as stated to Tullyvarraga, (2) Ballycaseymore have been lost or inadvertently and Barony of Bunratty Lower; Co • Lost land certificates – £30 plus 21% VAT (£36.30) destroyed. A new certificate will be Clare • Wills – £50 plus 21% VAT (£60.50) issued unless notification is received Regd owner: Eamonn Gallagher and • Lost title deeds – £50 plus 21% VAT (£60.50) in the registry within 28 days from Clare Gallagher, Beechpark, • Employment miscellaneous – £30 plus 21% VAT (£36.30) the date of publication of this notice Ennis, County Clare; Folio: that the original certificate is in exis- 26993F; Lands: Townland of HIGHLIGHT YOUR ADVERTISEMENT BY PUTTING A BOX AROUND IT – £25 EXTRA tence and in the custody of some per- Seafield and Barony of Ibrickan; All advertisements must be paid for prior to publication. Deadline for son other than the registered owner. Area: (1) 0.364 hectares, (2) 0.089 January/February 2001 Gazette: 19 January 2001. For further information, Any such notification should state the hectares; Co Clare contact Catherine Kearney or Louise Rose on 01 672 4828 grounds on which the certificate is Regd owner: Musgrave Ltd; Folio: being held. 5101F; Lands: Known as a plot of Regd owner: Michael Ansbro; Folio: 0.6474 hectares and Barony of (Register of Titles), Central Office, Land ground situate in the Townland of 5244; Lands: Curraghaun and Loughrea; Co Galway Registry, Chancery Street, Dublin Ballycurreen, the Barony of Cork, Barony of Dunmore; Co Galway Regd owner: Michael Monaghan, (Published 8 December 2000) and the County of Cork; Co Cork Regd owner: Michael Aylward, Knockbrack, Athenry, County Regd owner: Ellen Magner; Folio: Lower Salthill, Galway; Folio: Galway; Folio: 30608F; Lands: Regd owner: James Fenelon; Folio: 43645; Lands: Known as a plot of 28515; Lands: Townland of To wnland of Knockbrack; Area: 6142F; Lands: Knockdramagh and ground in the Townland of Cloghatisky and Barony of 0.931 hectares and Barony of Barony of Forth; Co Carlow Newcastle, the Barony of Barretts Galway; Area: 0.0354 hectares; Co Tiaquin; Co Galway Regd owner: Arthur Alan Skuce; and the County of Cork; Co Cork Galway Regd owner: Pauline Sheelah Crowe, Folio: 9834F; Lands: property situ- Regd owner: Gerald Barry and Mary Regd owner: John Connell, St Anne’s, Ballygar, Galway; Folio: ate to the north side of Centaur Ellen Barry; Folio: 24853F; Lands: Kilroughter, Castlegar, Galway; 41559; Lands: Townland of (1) Street in the parish and urban dis- Known as a plot of ground situate Folio: 19581; Lands: Townland of Killeroran and Barony of Killian; trict of Carlow; Co Carlow in the Townland of Ballybane East, (1) Kilroughter and Barony of Area: 0.0400 hectares; Co Galway Regd owner: Laurence and Celine the Barony of Carbery West (West Galway; Area: 3.6725 hectares; Co Regd owner: Barnard Callanan, Byrne, Wood Road, Cratloe, Division), and the County of Cork; Galway Green House, Ardrahan, County Clare; Folio: 1186F; Lands: Co Cork Regd owner: Michael James Jude Galway; Folio: 13953F; Lands: Townland of (1) Ballymorris and Regd owner: Musgrave Ltd; Folio: Holland, Sundrive Road Garda Townland of Mannin; Area: 0.4120 Barony of Bunratty lower; Area: (1) 51082, (2) 23081F, (3) 35608; Station, Dublin, 3 Osprey Drive, hectares and Barony of Dunkellin; 0.2700 hectares; Co Clare Lands: Known as a plot of ground Templeogue, Dublin 6W; Folio: Co Galway Regd owner: Michael and Claire situate in the Townland of 39455; Lands: Townland of Regd owner: Gerard Noel Lavelle, Quinn, Breaffa South, Spanish Ballyphehane, the Barony of Cork Isertkelly North; Area: (1) 4.679 Kilgevrin, Miltown, County Point, Milltown Malbay, Co Clare; and the County of Cork; Co Cork hectares, (2) 7.5119 hectares, (3) Galway; Folio: 22155F; Lands: Folio: 9506F; Lands: Townland of Regd owner: Alphonsus McGinty, (1) Breaffy South and (2) Leagard Druminnin, Barnesmore, County South and Barony of Ibrickan; Donegal; Folio: 5335; Lands: Area: (1) 0.7320 hectares (2) Druminnin; Area: 7.435 hectares; NORTHERN DUBLIN SOLICITORS’ 1.1840 hectares; Co Clare Co Donegal IRELAND PRACTICE OFFERS Regd owner: John J Fitzpatrick, Regd owner: Pierce and Teresa Cloghaun, Lisdoonvarna, Co Ferriter, Kill, Dunfanaghy, Co SOLICITORS AGENCY WORK Clare; Folio: 13929; Lands: Donegal and Tullywee, Laghey, IN NORTHERN Townland of (1) Ardemush and Co Donegal; Folio: 39498; Lands: We will engage in, Barony of Corcomroe; Area: Kill; Area: 0.225 acres; Co and advise on, IRELAND 0.9000 hectares; Co Clare Donegal all Northern Ireland- Regd owner: John Joseph Fitzpatrick, Regd owner: Geraldine and Mark related matters, * All legal work undertaken 31 Rooska, Lisdoonvarna, Co Corrigan; Folio: DN107555F; particularly personal on an agency basis * All communications to clients Clare; Folio: 16664F; Lands: Lands: Property situate in the injury litigation. Townland of (1) Poulnagun, (2) Townland of Ballyowen and through instructing solicitors Consultations where Poulnagun, (3) Poulnagun and Barony of Newcastle; Co Dublin * Consultations in Dublin if required Barony of Corcomroe; Area: (1) Regd owner: Denis, Brian and Robert convenient. Fee sharing Contact: Séamus Connolly 2.934 hectares, (2) 1.862 hectares, Jacobson; Folio: DN74603F; Moran & Ryan, Solicitors, (3) 0.688 hectares; Co Clare Lands: Property situate on the east envisaged. Arran House, Regd owner: Michael Meskell side of Milltown Road in the 35/36 Arran Quay, Dublin 7. (deceased), ‘The Fisheries’, Parish of Donnybrook and District OLIVER M LOUGHRAN Castleconnell, County Limerick; of Pembroke; Co Dublin Tel: (01) 872 5622 Folio: 14679; Lands: Townland of Regd owner: Anthony and Marie & COMPANY Fax: (01) 872 5404 O’Briensbridge and Barony of Woods; Folio: DN67283F; Lands: 9 HOLMVIEW TERRACE, e-mail: [email protected] Tulla Lower; Area: 4a 3r 10p; Co Property situate in the Townland OMAGH, CO TYRONE Clare of Yellow Walls and Barony of or Bank Building, Hill Street Newry, County Down. Regd owner: Patrick and Margaret Coolock; Co Dublin Phone (004428) 8224 1530 Conway, 10 St Vincent’s Court, Regd owner: Patrick Clinton; Folio: Fax: (004428) 8224 9865 Tel: (0801693) 65311 Tipperary and formerly of DN603; Lands: Property situate in e-mail: Fax: (0801693) 62096 the Townland of Ballydowd and Cloghaunsavan, Kilbaha, Kilrish, [email protected] E-mail: [email protected] Clare; Folio: 1597F; Lands: Barony of Newcastle; Co Dublin

53 Law Society Gazette December 2000 Professional information

Townland of Kilgevrin and Barony Regd owner: James and Mary Flatley, Sligo; Folio: 2108F; Lands: Monahan, Solicitors, Bank Buildings, of Dunmore; Area: 0.1335 hectares; Ashford Manor, Claremorris Road, Townland of Knocknagroagh; O’Connell St, Sligo, tel: 071 54985, Co Galway Knock, Mayo; Folio: 49880; Lands: Area: (1) 13.921 hectares, (2) 4.628 fax: 071 45757 or e-mail: Regd owner: Patrick O’Connell, Townland of Ballyhowly; Area: hectares and Barony of Corran; Co [email protected] Killshanaig, Castlegregory, Co 0.1770 hectares and Barony of Sligo Kerry; Folio: 3583; Lands: Lerrig Clanmorris; Co Mayo Regd owner: Michael Joseph Kellett, Bridget M (deceased), late North and Barony of Clanmaurice; Regd owner: Rose McNally, Mattimoe, Ballymote, Co Sligo; of Cornashesk, Virginia, Co Cavan. Area: 26 acres, 3 roods and 19 Kilmurray, Culloville PO, Folio: 16373; Lands: Townland of Would any person having knowledge perches; Co Kerry Castleblayney, Co Monaghan; Doonmeegin and Barony of of a will executed by the above named Regd owner: Martin Cunningham; Folio: 493; Lands: Farney; Co Corran; Area: 12a 1r 2p; Co Sligo deceased who died on 25 May 1957, Folio: 6284; Lands: Knockbawe; Monaghan Regd owner: William Maher; Folio: please contact Dolan Cosgrove, Co Kildare Regd owner: Helen Mary Feighan, 21345; Lands: Castlepark and Solicitors, Main Street, Virginia, Co Regd owner: Niall and Eilish Main Street, Boyle, Co Barony of Clanwilliam; Co Cavan, tel: 049 8547006 McGuinness; Folio: 30325F; Lands: Roscommon; Folio: 9968F; Lands: Tipperary 132 Castledawson, Maynooth, Co Townland of Knocknashee and Regd owner: William Quigley; Folio: McGlynn, Mary, late of Castle Kildare; Co Kildare Barony of Boyle; Co Roscommon 17702; Lands: Kilbreedy and Park (formerly Proughlish), New- Regd owner: Michael Cassin; Folio: Regd owner: Eugene Madden, Barony of Middlethird; Co townforbes, Co Longford. Would 7040F; Lands: Ballygeardra and Charlestown Road, Ballaghderreen, Tipperary any person having knowledge of a Barony of Knocktopher; Co Roscommon; Folio: 7163; Lands: Regd owner: James Salmon will executed by the above named Kilkenny Townland of Ballaghderreen and (deceased); Folio: 7427; Lands: deceased who died on 19 July 2000, Regd owner: Michael Deevy; Barony of Costello; Area: 0.1542 Townland of Clashbrack & please contact Delany Gannon Folio:6692; Lands: Clonlyon and hectares; Co Roscommon Carronhyla and Barony of Decies- Quinn, Solicitors, Mohill, Co Barony of Tinnahinch; Co Laois Regd owner: Bernard M Kelly, within-Drum; Co Waterford Leitrim, tel: 078 31004 (Ref: Regd owner: Sean Whyte (deceased); Limerick Road, Ennis, Co Clare; Regd owner: The Dungarvan Co- Mc/1570) Folio: 13204; Lands: Errill and Folio: 20061; Lands: Townland of Operative Creamery Limited; Monamonra and Barony of (1) Carrowncaran and (2) Martry Folio: 9099; Lands: Townland of Murphy, James Brendan Clandonagh; Co Laois and Barony of Frenchpark; Area: (1) Clashmore and Barony of Decies- (deceased), late of Kingston YMCA, Regd owner: William Eugene 19.5890 hectares, (2) 0.4550 within-Drum; Co Waterford 49 Victoria Road, Surbiton, Surrey Headen; Folio: 9186; Lands: Fossy hectares; Co Roscommon Regd owner: James Moore, KT6 4NG and formerly of 172 New Lower and Barony of Cullenagh; Regd owner: Westward Holdings Meehanbee, Drum, Athlone, Co Kent Road, London SE1. Would any Co Laois Limited, Farnbeg, Strokestown, Roscommon; Folio: 662; Lands: person having knowledge of a will Regd owner: Very Reverend John County Roscommon; Folio: Coolvin; Area: 16.26 acres; Co made by the above named deceased, Ryan (deceased), Reverend 18309F; Lands: Townland of (1) Westmeath who died on 23 September 2000, Desmond McAuliffe and Reverend Bumlin, (2) Killinardan Beg and Regd owner: Sean Timmons, Maurice please contact Mary O’Connor & Frank O’Dea; Folio: 1989L & Barony of Roscommon, (3) Lyons, Reverend Fr. Michael Company, 90 Marlborough Road, 7521F; Lands: Townland of Cuilleenirwan and Barony of Byrne (deceased), John Morris Donnybrook, Dublin 4, tel: 01 Shannabooly and Barony of North Athlone, (4) Newtown, (5) North (deceased) and Seamus de Roiste 4964615 and 01 4964800, fax: 01 Liberties; Co Limerick Yard, (6) Vesnoy, (7) Cloondaroon, (deceased); Folio: 15223; Lands: 4964465 Regd owner: Patrick and Bridget (8) Lisroyne, (9) Scramoge, (10) Skeahanagh or Farmley and Byrnes; Folio: 13760F; Lands: A Graffogue and Barony of Barony of Scarawalsh; Co Quinn, Patrick, late of 41 Cabra plot of ground situate at No 19 Roscommon; Area: (1) .627 Wexford Park, Phibsboro, Dublin 5. Would North Claughan Road in the Parish hectares, (2) 1.252 hectares, (3) any person having knowledge of a of St Patrick in the city of Limerick; 25.437 hectares, (4) 34.097 will made by the above named Co Limerick hectares, (5) 0.516 hectares, (6) WILLS deceased who died on 28 May 2000, Regd owner: James Mahon, 27.966 hectares, (7) 38.673 please contact Arthur O’Hagan, Stephenstown, Knockbridge, hectares, (8) 9.2600 hectares, (9) Carroll, Michael (deceased), late of Solicitors, 9 Harcourt Street, Dublin Dundalk &162 Glenwood, 1.109 hectares, (10) 0.716 hectares; Meadstown, Kildorrery, Co Cork. 2, tel: 4758701, fax: 4781583 Dundalk, County Louth; Folio: Co Roscommon Would any firm of solicitors holding a 1922L; Lands: Marshes Upper; Co Regd owner: John Gilligan, will, or having knowledge of a will Reidy, Patrick (deceased), retired Louth Knocknagroagh, Drumfin, Co made by the above named deceased, bricklayer, late of 21 Nagles Terrace, who died on 9 March 1998, please Kilrush, County Clare, and formerly contact John Molan & Sons, of 15 Windsor Terrace, Harolds Solicitors, Mitchelstown, Co Cork, Cross, Dublin. Would any person tel: 025 24543, fax: 025 84343 having knowledge of a will made by the above named deceased, who died ITLE ESEARCH Gabriel, Cornelius (or Con), late of on 30 September 2000, please con- T R Chapel Street, Bandon, Co Cork. tact Desmond J Houlihan & YOUR PARTNER IN TRACING Would any person having knowledge Company, Solicitors, Salthouse of a will made by the above named Lane, Ennis, County Clare, tel: 065 MISSING BENEFICIARIES deceased, who died on 16 March 6842244, fax: 065 6842233 PROBATE & • Free professional assessments 2000, please contact Murphy & Long, SUCCESSION Solicitors, Lower Kilbrogan Hill, GENEALOGY – • Range of cost structures Bandon, Co Cork, tel: 023 44420, fax: EMPLOYMENT • Excellent success rate world- 023 44635 Solicitor required for busy North For more information or our detailed brochure please Higgins, James J (deceased), late of Cork office. Experience in con- +44 020 7549 Kevinsfort, Strandhill Road, Sligo. veyancing and litigation required. Charter House, 2 Farringdon Road, London EC1M Would any person having knowledge Excellent salary and benefits for the 3HN of a will of the above named deceased right applicant. Send CV to Eugene Fax: +44 020 7549 0949 DX: 53347 Clerkenwell who died on 18 May 1999, please Carey & Company, Courthouse contact Michael J Horan, Horan Chambers, Mallow, Co Cork

54 Law Society Gazette December 2000 Professional information

For sale: seven-day ordinary intox- 1. For directions as to the service of icating liquor licence. Enquiries this notice of application and details from Mannix & Company, 2. For an order declaring that the Solicitors, 12 Upper Castle Street, applicant is entitled to obtain from Tralee, tel: 066 7125011 the respondent’s successors in title a reversionary lease of the lands Publican’s ordinary seven-day comprised in this application licence for sale – County Cork. 3. For an order fixing the terms upon Be Sure. Engage a Forensic Please contact J&P O’Donoghue, which such lease is to be granted Solicitors, 14 Main Street, 4. For such further order as justice 26/28 South Terrace, Cork Tel:021 431 9200 Caherciveen, Co Kerry, tel: 066 may require Fax:021 431 9300 9472413, fax: 066 9472667 5. For an order providing for the cost of this application. Part time solicitor available, Dublin London solicitors will advise on UK area, phone 01 2196293 matters and undertake agency work. TITLE DEEDS And take notice that the applicant will All areas. Corporate/private clients. rely upon the following matters in Solicitor required for Derry practice, Ellis & Fairbairn, 26 Old Brompton In the matter of the Landlord and support of the application: preferably with at least two years’ PQE. Road, South Kensington, London Tenant Acts, 1967-1994 and in the 1. The lands comprised in this appli- Position would suit a solicitor with a SW7 3DL, tel: 0044 171 589 0141, matter of the Landlord and Tenant cation are the lands at Grantstown, background in conveyancing/probate. fax: 0044 171 225 3935 (Amendment) Act, 1980, section 37: County Tipperary which were Salary commensurate with experience. Tipperary Co-Operative Cream- demised for a term of 99 years Applications in writing with full CV to Northern Ireland solicitors. Will ery Limited (applicant) and from 1 August 1900 by lease dated Caldwell & Robinson, 11 Castle Street, advise and undertake NI-related mat- William Godfrey and Dunham 3 November 1900 between Derry, NI, BT48 6HQ ters. All areas corporate/private. Massy (respondent) Lieutenant General William Agency or full referral of cases as pre- Godfrey Dunham Massy of the Leitrim/Cavan general area: hard- ferred. Consultations in Dublin or Take notice that on 13 February 2001 one part and the applicant’s prede- working solicitor with good variety of elsewhere if required. Fee sharing at 11am the above-named applicant cessor in title the Co-Operative experience in general practice wishes to envisaged. Donnelly Neary & of Station Road, Tipperary, hereby Wholesale Society Limited of the expand horizons. May suit an expand- Donnelly, 1 Downshire Road, Newry, applies to the court sitting at the other part ing practice which is looking for an Co Down, tel: 080 1693 64611, fax: Courthouse Tipperary Town, pur- 2. Pursuant to the said agreement, additional solicitor with a view to part- 080 1693 67000. Contact KJ Neary suant to section 37 of the Landlord the applicant constructed a cream- nership, a practitioner working and Tenant Amendment Act, 1980: ery on the said site at a cost in towards retirement or an employed Personal injury claims, employ- solicitor considering setting up in prac- ment, family, criminal and property tice and looking for a partner. Prepared law specialists in England and Wales. to be flexible and open to suggestions. Offices in London (Wood Green, o All replies will be treated in strictest Camden Town and Stratford), S L V confidence. Apply Box No 100 Birmingham and Cardiff. ‘No win, no fee’ available for accident and recruitment group Solicitor required for busy employment claims, legal aid for fam- Tullamore office. Might suit recently- ily and criminal cases. Contact qualified solicitor though some experi- Levenes Solicitors at Ashley House, ence in conveyancing and litigation 235-239 High Road, Wood Green, desirable but not essential. Excellent London N22 8HF, tel: 0044 20 8881 salary and benefits for the right appli- 7777. Alternatively, e-mail us on cant. Send CV to Donal Farrelly & [email protected] or visit our web- Company, Solicitors, Tullagh House, site at www.levenes.co.uk Tullamore, County Offaly

MISCELLANEOUS EYE INJURIES AND OPHTHALMOLOGIAL Northern Ireland solicitors provid- NEGLIGENCE ing an efficient and comprehensive legal service in all contentious/non- Mr Louis Clearkin ChM, FRCS, fashionconscious! contentious matters. Dublin-based FRCOphth, DO, MAI, MEWI consultations and elsewhere. Fee Consultant Ophthalmic Surgeon apportionment. ML White, Solicitors, Experienced expert witness in 43-45 Monaghan Street, Newry, ophthalmological personal County Down, tel: 080 1693 68144, injury, medical negligence and fax: 080 1693 60966 civil litigation T: 01 878 8669 F: 01 878 8710 Northern Ireland agents for all con- email: [email protected] Renuntiabo, 8 Rose Mount, Website: www.solv.ie tentious and non-contentious matters. Oxton, Wirral, Merseyside, Consultation in Dublin if required. Fee L43 5SW 5 Lower O’Connell Street sharing envisaged. Offices in Belfast, secretary: +44 (0) 151 6047047 Dublin 1 Newry and Carrickfergus. Contact fax: +44 (0) 151 6047152 Norville Connolly, D&E Fisher, e-mail: [email protected] Solicitors, 8 Trevor Hill, Newry, tel: all the top legal positions 080 1693 61616, fax: 080 1693 67712

55 Law Society Gazette December 2000 Professional information

excess of £300 and remains in pos- 121 Braemor Road, Churchtown, the date of this notice and will apply from the date of this notice and will session of the lands Dublin 14: an application by David to the county registrar for the county apply to the county registrar for 3. No person holds the said lands and Anne Ryan of Kildare for directions as may be directions which might be appropri- under a proprietary of other lease appropriate on the basis that the per- ate on the basis that the person or 4. The said lease expired on 1 August Take notice that David and Anne son or persons beneficially entitled to persons beneficially entitled to the 1999. Ryan intend to submit an application the superior interest including the superior interest, including the free- to the county registrar for the county freehold reversion in the aforesaid hold reversion of the property, are And take notice that this application of Dublin for the acquisition of the premises are unknown or unascer- unknown or unascertained. will be listed for hearing by the court unencumbered freehold interest in tained. on 13 February 2001 or on the first the aforesaid property and any party Dated 7 November 2000 Schedule available day thereafter. aforesaid premises are called upon to Signed: LC O’Reilly Timmins & All that and those the house known as Dated 1 November 2000 furnish evidence of title to the afore- Company, solicitors for the applicant, The No 32 Clarendon Street formerly in Signed: Nash McDermott & Co, solici- mentioned premises to the below Harbour, Kilcock, Co Kildare the occupation of Michael Kernan tors for the applicant, Templemore, Co named within 21 days from the date together with the two back houses in Tipperary of this notice. In the matter of the Landlord and the rear thereof known as by the In default of the said notice being Tenant Acts, 1967-1994, and in the name Coghlins Court also formerly in Lost title deeds. Anthony McGlynn received, David and Anne Ryan matter of the Landlord and Tenant the possession of Michael Kernan (deceased), premises: 13 James Street intend to proceed with the application (Ground Rents) (No 2) Act, 1978: an which said premises are situate in the North, North Strand, Dublin. Would before the county registrar of the application by Auldcarn Limited parish of St Anne and county of the any person having knowledge of the county of Dublin at the end of 21 days city of Dublin. title deeds of the above premises, from the date of this notice and will Take notice that the applicant intends please contact Michael E Hanahoe, apply to the county registrar for the to submit an application to the coun- Particulars of lease Solicitors, 21 Parliament Street, county of Dublin for directions as ty registrar for the county of the city Lease dated 7 April 1874 and made Dublin 2, tel: 01 6772353 (Ref 5) may be appropriate on the basis that of Dublin for the acquisition of the between Michael Kernan of the one the person or persons beneficially freehold interest and all, if any, inter- part and Thomas Quinlisk of the In the matter of the Landlord and entitled to the superior interest and mediate interest in the premises other part held thereunder for a term Tenant Acts,1967-1994 and in the that any person or persons beneficial- described in the schedule hereto and of 190 years from 1 February 1874 matter of the Landlord and Tenant ly entitled to the superior interest any person having an interest in the and subject to an annual rent of £48 (Ground Rents) (No 2) Act, 1978 including the freehold reversion in freehold estate or any intermediate thereby reserved and the covenants and in the matter of that part of the the aforesaid premises are unknown interest or estate between the free- and conditions therein contained. town and lands of Little Newtown or unascertained. hold and the leasehold interest held Take notice that Auldcarn Ltd, bounded on the north east by new Signed: Rice Jones, Solicitors, 29/30 by the applicant in the property are being a person entitled under sections road and having frontage thereon Dawson Street, Dublin 2 hereby called upon to furnish evi- 8, 9 and 10 of the Landlord and Tenant of 215ft, grounded on the south dence of their title to the solicitors for (Ground Rents) (No 2) Act, 1978, pro- east by an intended new road hav- In the matter of the Landlord and the applicant within 21 days from this poses to purchase the fee simple and ing a frontage thereon of 233ft Tenant (Ground Rents) (No 2) Act, notice. any and all intermediate interests in bounded both on the south and on 1978: an application by Joe Mallon In default of any such notice being the lands above described. the west by lands belonging to Motors Limited, Dublin Road, received, the applicant intends to pro- Dated 23 November 2000 Rental Holdings (Subsidiary) Naas, Co Kildare ceed with the application before the Signed: Dixon Quinlan, Solicitors, 8 Limited situated in the parish of county registrar at the end of 21 days Parnell Square, Dublin 1 Rathfarnham barony of Rathdown Ta ke notice that any person having and county of the city of Dublin any interest in the freehold estate of and one which is now known as the following property: all that piece or parcel of ground situate on the north side of the Dublin road, Naas, SOLICITORS’ in the county of Kildare held under indenture of lease made the 29 October 1901 between Kathleen HELPLINE J. DAVID O’BRIEN Montgomery and Letitia ATTORNEY AT LAW Montgomery of the one part and 20 Vesey St, Suite 700 New James Hyland of the other part. York, NY. 10007 Take notice that Joe Mallon The Solicitors’ Helpline is Motors Limited intends to submit an available to assist every Tel: 001212-571-6111 application to the county registrar for Fax: 001212-571-6166 the county of Kildare, Courthouse, member of the profession PERSONAL INJURY ACCIDENT Naas, Co Kildare for the acquisition with any problem, whether CASES of the freehold interest in the afore- personal or professional. said property and any party asserting CONSTRUCTION that they hold a superior interest in RAILROAD the aforesaid property (or any part The service is completely MARITIME thereof) are called upon to furnish AVIATION confidential and totally inde- evidence of title to the aforemen- CAR/BUS/TRUCK tioned premises to the county regis- pendent of the Law Society. MEMBER AMERICAN AND NEW trar, Courthouse, Naas, Co Kildare YORK STATE TRIAL LAWYERS within 21 days from the date of this If you require advice for any ASSOCIATIONS notice. In default of any such notice being reason, phone:01 284 Enrolled as Solicitor received, the applicant, Joe Mallon 8484 in Rep. of Ireland, England Motors Limited, intends to proceed & Wales

with the application before the coun- 01 284 8484 ty registrar at the end of 21 days from

56 Law Society Gazette December 2000