Contents GazetteLawSociety

Regulars Cover Story When saying sorry isn’t enough President’s message 3 14 The story of children abused in industrial schools touched the hearts of the Irish people. The taoiseach even apologised to the victims on News 4 behalf of the state. But, as Karen O’Connor points out, the shine of sincerity will fade from that apology if the question of liability Viewpoint 10 is not addressed Letters 12

Tech trends 30 A basic guide to discovery Briefing 33 18 Discovery is a central part of litigation, but some practitioners regard it with Practice notes 33 trepidation because it can often involve Legislation sifting through reams of documents. update 37 Eoin Dee discusses the essential Personal injury elements of discovery judgments 38 FirstLaw update 42 Eurlegal 47 The new meaning of master 24 and apprentice People and All solicitors have experience of apprenticeships, and places 51 their opinions can vary from fond memories of valuable learning Apprentices’ page 53 and personal development to flashbacks of disastrous lost opportunities. John Connellan looks at the relationship between Professional master and apprentice information 54

COVER PHOTO: [email protected] Equal measures 26 The sweeping provisions of the Employment Equality Act, 1998 mean that you could be advising a growing number of your clients on their recruitment practices. Michelle Nì Longàin explains what employers must do to ensure that their procedures comply with the legislation

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

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

Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4801. Volume 94, number 6 E-mail: [email protected] Law Society website: www.lawsociety.ie Subscriptions: £45

1 Law Society Gazette July 2000

President’s message

Monkey trouble

here’s an old saying that ‘if you pay efficiency because of peanuts, you get monkeys’. Well, not any- chronic staff shortages is more. These days, if you pay peanuts, you hitting people who have get nobody at all. Monkeys would be a suffered enough distress T bonus. already without enduring You only have to look at the current staff a further and shortages in the public sector to see the truth of this. unnecessary blow upon a In this magazine over the last few months, you will bruise. have read of the Law Society’s on-going concerns And then there’s the about the levels of staffing in the Land Registry and legal aid system. the consequent backlog of dealings. Currently, Elsewhere in these pages arrears stand at about 100,000, and the Department you’ll find a news story of Justice has admitted that the situation is likely on a new report on civil legal aid prepared by the ‘Many people to get worse before it gets better. Recruitment of society’s Family Law and Civil Legal Aid 60 new staff at the registry has been approved, but Committee. It forcibly makes the point that there are suffering it is questionable whether the department will be may be hundreds of couples forced to live in tragic needlessly able to attract or retain sufficient candidates to fill domestic circumstances for a year or more because these posts. of the huge backlog of legal aid cases. As the while we committee chair, Rosemary Horgan, says: ‘It’s congratulate The tiger’s soft underbelly important to realise that there are real human And the problem does not only lie with the Land consequences to an inadequately-funded and under- ourselves Registry: it’s the same story right across the public staffed legal aid service’. That sentiment could on how well sector. Some might say that this is an economic equally apply to all other parts of the public service. issue, the soft underbelly of our roaring tiger. But we are all solicitors – like other professionals working in these Another man’s wound doing’ areas – know it’s not as simple as that. This isn’t We’re living in extraordinary times. Exchequer about economics; it’s about people. Real people are coffers are bursting and the government admits it being affected by notional funding decisions taken by has more money than it knows what to do with. government. We’ve all seen how our clients have Well, we have some ideas about that. For a start, it been affected. could pump some of that revenue into the cash- Take the Wards of Court Office, for example. starved state bodies that really need it. It could Staff shortages there are hitting some of the most recruit sufficient staff so that these bodies can carry vulnerable members of society. People who can’t out the valuable work they are charged with doing. look after themselves. The least they could expect is And it could raise the level of remuneration right that an office set up by the state to look after their across the public sector so that it attracts and retains welfare should be sufficiently well funded so that it the brightest and best. can do its job. I understand the office is facing a two- There’s another old saying: ‘it’s easy to sleep on year backlog in bringing its files up to speed. This is another man’s wound’. Many people are suffering no reflection on the hard-pressed staff in the Wards needlessly while we congratulate ourselves on how of Court Office, who are doing Trojan work in the well we are all doing. This country, and the most trying circumstances. This is a reflection on government’s economic gurus, need a wake-up call. government priorities. The Probate Office is in similar trouble. Again, its Anthony Ensor, inability to function at anything resembling President

3 Law Society Gazette July 2000 News

LIBRARY BOOK SALE The Law Society Library will Flood v Miley: Law Society have some old book stock available for sale in the library in the week starting Monday joins as notice party 17 July. Proceeds of the sale will go to the Solicitors’ he Law Society has accepted opportunity to do so again. Benevolent Association. Tthe invitation from the The society’s involvement in president of the High Court, this case is solely to uphold and LAW SOCIETY RETIREMENT Mr Justice Frederick Morris, to preserve the principles TRUST SCHEME be joined as a notice party to underlying legal professional Unit prices: 1 June 2000 the judicial review which has privilege and solicitor/client • Managed fund: 354.968p been initiated by solicitor confidentiality. The council • All-equity fund: 110.772p Stephen Miley of certain orders made it clear that by becoming • Cash fund: 178.740p made against him by the Flood a notice party and making • Pension protector fund: - Tribunal, writes Ken Murphy. submissions and arguments, the The Tribunal of Inquiry Into Law Society: acting as ‘a friend society is in no way supporting INTERNATIONAL CORRUPTION Certain Planning Matters and of the court’ any party on the merits of this SYMPOSIUM Payments has made a number of particular case. The society does An international symposium on orders against Stephen Miley interest. The society has been not support or wish to be the OECD convention on requiring certain documentation vigorously defending these identified with either side in this combating bribery of foreign and information in relation to principles from attack on a dispute but is making its public officials will be held in his clients, Jackson Way number of fronts in recent years contributions on an amicus Bruges, Belgium, on 14-15 Properties Limited, to be and it has decided to take this curiae basis. September. The conference, revealed to the tribunal. Mr organised by the American Bar Miley has opposed these orders Association, the International on a number of grounds, Video-link seminar a success Bar Association and the CCBE including an argument that the will bring together experts on documentation and information ary Hanafin, Minister of the OECD convention and should not be disclosed to the MState at the Department other anti-corruption tribunal on the grounds of of Health and Children initiatives. It will include solicitor/client privilege and (pictured right), was one of the discussions on money confidentiality. speakers at the Law Society’s laundering and bank secrecy At its meeting on 23 June, first-ever CLE video-link laws. For further information, the Law Society Council broadcast. The CLE seminar, contact the ABA’s decided that the society should Children and the law, chaired by International Law Section on seek to be joined as a notice Mrs Justice Catherine 001 202 662 1727 (web: party in this High Court judicial McGuinness, was held in Cork www.abanet.org/intlaw). review. The society’s objective and linked to Dublin through is to defend solicitor/client video-conferencing facilities. CHIEF JUSTICE BOOKED FOR privilege and solicitor/client Although a third link to regarded by those involved as a COMPANY LAW CONFERENCE confidentiality from any future Waterford proved problematic resounding success. Further Chief Justice Ronan Keane will erosion and it views this as a and had to be disconnected, the video-link CLE seminars are be the keynote speaker at the matter of the highest public video link was generally planned for the future. Company law 2000 conference on 22-23 September in University College, Cork. The conference will discuss the Library to close for three weeks – future direction of Irish company law and enforcement but bigger and better on the way in the context of the UK he Law Society library will The new library will be the Internet) and CD-ROMs will Company Law Review Project Tbe closed for a three-week located on two floors in what be available on all workstations. and the European period from Monday 14 August was formerly the student A larger multiple-copy collection Harmonisation Project. A to Friday 1 September inclusive lecture hall. The new location, of core textbooks will be stocked complete programme of to allow for its move to a new at the front of the building, for student use. speakers and a registration location in Blackhall Place. It will be more accessible to The library will be combining form will be available at the will reopen for business on everyone and will provide some the existing library and end of August. For further Monday 4 September but much-needed extra space. The information service to members information, contact Dr Irene during the preceeding period it new layout will include a with a much busier student Lynch-Fannon, Department of will be closed to personal mixture of computer library to cater for the new Law, UCC, on tel: 021 490 callers, as well as to phone, fax workstations and study tables. Education Centre, which is due 2224, fax: 021 427 0690. and e-mail communications. On-line databases (including to open on 2 October.

4 Law Society Gazette July 2000 News Radical reform of legal aid system urged in new Law Society report

ree legal aid should be solicitor in each Law Centre Fimmediately extended to to provide immediate legal anybody who receives social advice to clients, as there is welfare assistance, according to in England a new report from the Law • Legal aid clients should be Society’s Family Law and Civil able to choose their solicitor Legal Aid Committee, which from a Law Centre or from recommends a complete a panel of private practi- overhaul of the legal aid tioners system. The Report on civil legal • Where litigation aid in Ireland was launched at a proceedings are pending and press conference in the Law a party seeks legal aid, that Society’s headquarters last application should be dealt month. with speedily to avoid delays At the moment, eligibility to other litigants and court for legal aid is restricted to users those with ‘disposable income’ • The Legal Aid Board should of less than £7,350. The report Rosemary Horgan launching the society’s new report on civil legal aid immediately introduce an says that the financial criteria objective system of quality have been stuck at this level deportation orders’. pending cases by contracting assurance and a formal since mid-1995 and so ‘places According to Rosemary out legal aid services to a complaints-handling an unfair restriction on the Horgan, chair of the Family nationwide panel of private procedure eligibility of potential Law and Civil Legal Aid practitioners, she added. • Appeals against any decision customers’. Committee: ‘There is no The report goes on to make of the Adoption Board It also says that the legal aid doubt that the restrictive a number of further proposals regarding disclosure of service provided to refugees nature of the current legal aid for reforming the legal aid information should be and asylum-seekers is totally scheme puts us in breach of system. These include: legally aided inadequate, with applicants to the European convention on • Legal aid should be • All parties to adoption the Refugee Legal Service human rights and fundamental expanded to include all disputes should be eligible (RLS) being processed by law freedoms. If we truly believe in tribunal work and test cases for legal aid. clerks rather than solicitors. the concept of “justice for all”, (subject to the merits of the The report says that the RLS then the scheme needs to be particular case) The Law Society’s Family Law should be ‘properly staffed radically reformed and • If a Law Centre can’t handle and Civil Legal Aid with fully-qualified solicitors extended as a matter of an application for legal Committee has submitted its from the outset of their urgency. services within one month, Report on civil legal aid in application’ and that ‘solicitors ‘In the context of family the Legal Aid Board should Ireland to the Department of dealing with asylum-seekers law, for example, there may be contract out that application Justice, Equality and Law should be able to advise on hundreds of couples forced to • There should be a duty Reform. live in tragic domestic circumstances for a year or more because of the huge LawSociety backlog of legal aid cases. A little of what you fancy Gazette Doubtless, many can’t endure onscious of the time concurrently, on a wide range of the wait before their cases get Cconstraints that a booming topics, including conveyancing, summer heard and some must throw in economy places on practitioners commercial law, e-commerce, publication the towel – and throw back and the necessity of keeping up- taxation, employment law, the keys to the family home as to-date with changes in legislation litigation and EU law – you As usual, the Gazette will be well. It’s important to realise and practice, the Law Society’s decide the agenda. taking a well-earned break that there are real human Continuing Legal Education team The seminars will be held in over the summer so there consequences to an has come up with a solution – a the society’s new Education will be no issue in August. inadequately-funded and series of seminars taking place Centre in Blackhall Place on Normal publication will under-staffed legal aid service’. over one day! Saturday 11 November and will resume with a joint The committee believes A panel of experienced cost £85. Further details will be August/September issue, that the government could speakers will deliver hour-long circulated with the August/Sept- due out on 8 September. save taxpayers’ money and lectures, which will run ember issue of the Gazette. ease the huge backlog of

5 Law Society Gazette July 2000 EXECUTIVE LEGAL OFFICER TO THE CHIEF JUSTICE

he Courts Service seeks to engage a suitably qualified person with appro- Tpriate experience and skills to provide legal and administrative support to the Chief Justice. This is an outstanding opportunity for an ambitious and enthusiastic legal graduate. The arrangement will be on a contract basis for a twelve month period renewable to a maximum of three years.

Applicants should: • have a qualification in law • have excellent communication, interpersonal and computer skills • have excellent Organisational skills • have excellent administrative skills and • have the capability to produce high quality written material

Letters of application with full details of A more detailed description of the range relevant experience should be sent to of duties required is available on written arrive not later than 5.00pm on Friday request to the above address of fax 01- 21 July 2000 to Mr Brendan Ryan, 873 5242, or alternatively telephone 01- Director of Corporate Services, Green 888 6426, Street Courthouse, Halston Street, Dublin 7. Attractive remuneration arrangements shall apply to the successful applicant. Shortlisting of applications may be car- ried out on the basis of these written The Courts Service is an equal opportu- applications. nity employer. News

RECENT STAMP DUTY CHANGES Army deafness litigation update The Finance (No 2) Act, 2000 was passed by the Oireachtas here have been a series of practitioners who act for on 29 June. Details of the Tdiscussions between plaintiffs are requested to provisions of the act are solicitors representing plaintiffs forward any audiograms to the available on the Department of in army hearing cases, and chief state solicitor, who, prior Finance website at representatives of the Chief to opening any settlement www.irlgov.ie/finance or the State Solicitor’s Office and the negotiations, will have Revenue Commissioners’ Department of Defence over exchanged audiograms with the website at www.revenue.ie. the last number of months. relevant solicitor. The Chief The Law Society, through State Solicitor’s Office has JUDICIAL CASE MANAGEMENT James McCourt, Ken Murphy promised to deal with the cases DISCUSSION DOCUMENT and Mary Keane, acted as subject to the usual constraints The Law Society’s Litigation facilitators. In this regard, cases of the resources which they Committee has watched with had been adjourned for Easter have available. interest the introduction of term, and a number of cases in July in Waterford, Practitioners might note that various forms of judicial case settlement meetings have Limerick and Cork, and cases any successful negotiations management in other already taken place with scheduled for these sittings are culminating in an offer being jurisdictions. At the committee’s plaintiffs’ solicitors. unaffected. Dublin Circuit made by the defendants should request, a number of specialist Judge Johnson was made Court is adjourned as regards comprise a figure for the litigation solicitors formed a sub- aware of the discussions which hearing cases until 11 July, and plaintiff and a separate all-in committee to examine the had taken place between the an application in respect of the figure in respect of concept and its possible parties in the High Court, and first two weeks of the contribution towards the application to civil procedure in on Wednesday 14 June an Michaelmas term is to be made plaintiff’s costs. this jurisdiction. The sub- application was made by the shortly before the president of If any practitioners require committee presented its defendants for a further the Circuit Court. Country further information, they can discussion document to the adjournment of cases to see if circuit venues are unaffected. contact representatives of the Litigation Committee last month. settlement negotiations could The Office of the Chief group which has been in The committee decided that the continue between the parties. State Solicitor has indicated discussion with the defendants document should be forwarded Judge Johnson ordered that, as that it will recommence the in these cases: David O’Shea, to each bar association for far as the Dublin High Court process of trying to settle cases Patrick V Boland & Son, discussion at local level. list was concerned, the List 2 by negotiation from the end of Solicitors, Newbridge; Brian Members who wish to obtain a (army hearing cases) would Hilary term. In this regard, Carolan, Byrne Carolan copy of the document can start again on 11 July next for Cunningham, Solicitors, contact Colette Carey, secretary the rest of the term. The first Date for your diary Athlone; Terry English, Flynn to the Litigation Committee. two weeks of Michaelmas term English & Co, Solicitors, Cork; Comments or observations was to be adjourned, and the Next year’s Law Society of Seamus Downes, McMahon & should be submitted by 18 entire matter is to be reviewed Ireland annual conference O’Brien Downes, Solicitors, August. by him on 2 October next. will be held in Monaco from Limerick; and Pat Crowley, The High Court on circuit 26-29 April 2001. O’Donovan Solicitors, 73 MBNA TRAVEL INSURANCE: will be dealing with hearing Capel Street, Dublin 1. A CLARIFICATION The Law Society has received a number of queries regarding the travel accident insurance offered New Education Centre ‘on a par by MBNA. An MBNA standard cardholder who uses his or her with the best in the world’ card to pay in full for travel tickets can avail of up to he imminent completion of also been brought into line £100,000 travel accident Tthe Law Society’s new £5.2 with the society’s vision that it insurance. But members should million Education Centre has should provide both pre- and note that this travel accident been hailed as ‘probably the most post-qualification training for insurance applies only during the exciting time ever in the history solicitors that is at least on a course of the journey to and from of Irish legal education’ by par with the best to be found one’s destination. It does not Director General Ken Murphy. anywhere in the world’. cover travel cancellations or ‘Not merely will the facilities President Mary McAleese accidents or injuries incurred for education soon be will officially open the building while not in transit. Different incomparably better than what on 2 October, and two days conditions may apply to gold has existed up to now’, he said, later the Education Centre will cardholders and members should ‘but the educational course welcome 360 new professional check the terms and conditions content and methodology have practice course students. of use of their card carefully.

7 Law Society Gazette July 2000 FAMILY LAW REPORTING SERVICE

he Courts Service plans to establish a pilot project for a period of one Tyear to report on family law cases including court decisions, written judgments and statistics of cases coming before the courts.

The Courts Service seeks to engage on a contract for service basis a suitably qualified person with appropriate experience and skills to manage this project which is to provide a Family Law Reporting Service. This is an outstanding oppportunity for an ambitious and self-motivated legal graduate. The arrange- ment will be for a period of one year.

Applicants should have: •a qualification in law • execellent communication, interpersonal and computer skills • excellent organisational skills • excellent administrative skills and • the capability of producing high quality written reports •a knowledge and understanding of Irish Family law practice

Letters of application with full details of A more detailed description of the range relevant experience should be sent to of duties required is available on written Ms Maire Ryan, Courts Service, request to the above address. Green Street Courthouse, Halston Street, Dublin 7 by 14 August 2000. Attractive contractual arrangements will be available to the succesful applicant. Shortlisting of applicants may be carried out on the basis of the applications Information submitted may be subject to received. disclosure under the Freedom of Information Act. News

NEW GUIDE TO SMALL DSBA initiative to tackle CLAIMS COURT A new step-by-step consumer guide to the Small Claims Court legal secretary shortage procedure has been published by he first steps towards solving the European Consumer Centre Tthe shortage of skilled legal (ECC). The booklet, The Small secretaries were taken by the Claims Court: a consumer’s guide Dublin Solicitors’ Bar Association is designed to complement the last month with the launch of a ECC’s litigation advice service, tailor-made legal secretarial which is available free of charge course. The traineeship scheme to all consumers. Copies are has been designed in association available from the Dublin-based with FÁS, and will run on a trial ECC and from Citizens’ basis in Dublin. If the pilot Information Centres around project is a success, FÁS may the country. extend it around the country. Showing initiative: Frank Nugent, Ann Gilton and John Dolan from FÁS, The new legal secretary with the DSBA’s Richard Bennett and Boyce Shubotham COMPENSATION FUND PAYOUT traineeship will run for four The following claim amount was months, consisting of 18 weeks’ they work in a big firm or a have to appoint an in-house admitted by the Compensation off-the-job training at a FÁS small practice’. mentor to oversee the training Fund Committee and approved for centre and ten weeks’ in-house FÁS and the DSBA have plan and a skills coach who will payment by the Law Society training at participating law drawn up a skills profile which help the trainee and give Council at its meeting in June firms. According to Boyce potential trainees will have to feedback on performance. 2000: Michael Owens, 5 Lower Shubotham of the DSBA’s meet before they are accepted FÁS will run a half-day course Main Street, Dundrum, Dublin 14 employment committee, the on the course. Participating in late August to train mentors – £7,222.94. traineeship is targeted at the firms will be matched with and coaches, prior to the unemployed, school leavers and suitable candidates, who will introduction of the new legal US LAWYERS TO MEET IN people who want to return to have to complete a 12-module secretary traineeship in BLACKHALL PLACE work. training plan before they are September. ‘If you want a Tánaiste Mary Harney will be the ‘Experience has shown that awarded a national skills strategy for staff retention’, said guest speaker at a special once someone becomes a legal certificate. The modules Frank Nugent of FÁS, ‘then meeting of the American Bar secretary, they tend to stay within include: clerical and keyboard mentoring is the best approach’. Association’s International the legal profession rather than skills, dictaphone typing, basic There are 20 places on the Section which will be held in revert to a normal secretarial accounts, telephone techniques, pilot scheme, and law firms Ireland on 21-22 July. The Law role’, he said. ‘This course has legal practice and procedure, interested in participating should Society is hosting the business been designed so that people will and training on the CORT contact Boyce Shubotham at session on the afternoon of Friday learn a full set of skills, whether computer system. Law firms will William Fry on tel: 01 639 5000. 21 July (3.30-5.30pm) where the tánaiste will discuss Ireland as a gateway to the EU. Other speakers include Ulster Bank Society’s complaints handling chairman Sir George Quigly and General Motors’ Robert C ‘extremely satisfactory’ Weinbaum. A series of mock trials will be nly two journalists, one of Indeed, last year’s report did On the contrary, Condon held on the morning of Saturday Othem 40 minutes late, not fare much better despite assesses the society’s complaints 22 July (9am-12pm), when turned up to the recent press the fact that on that occasion handling as ‘extremely leading Irish solicitors and conference to launch the up to a dozen journalists satisfactory’ and ‘a fully- barristers will compare how second annual report of attended the press conference, resourced state-of-the-art criminal and civil cases are tried independent adjudicator including two TV crews. operation well ahead of its here and in the US. Eamon Condon, writes Ken Condon’s job is to assess the counterparts in Northern This the first time in 15 years Murphy. On the morning in fairness and effectiveness of the Ireland, Scotland, England and that such a meeting has been question, every other journalist Law Society’s handling of Wales’. The only thing it lacks, held in Ireland and many lawyers in Dublin appeared to be complaints made against he says, are the additional from around the United States congregated outside the home solicitors by their clients. His statutory powers required to are expected to attend. A general of the former judge and future problem, from a news point of make it more effective, although invitation has been issued to Irish investment banker Hugh view, is that his reports do not Minister for Justice, Equality and solicitors who would like to O’Flaherty. resoundingly condemn the Law Law Reform John O’Donoghue attend any of the ABA sessions. Not a line of coverage of the Society and solicitors has promised him that these For further information, please independent adjudicator’s everywhere, as the media long-awaited powers will be in contact Mary Kinsella at the Law report subsequently appeared. apparently would like. place by the end of the year. Society on 01 672 4823.

9 Law Society Gazette July 2000 Viewpoint An open letter to the minister for justice

Donncha O’Connell of the Irish Council for Civil Liberties replies to comments made by Justice Minister John O’Donoghue in last month’s issue

ear John, I read your that equality legislation, which potential for virulent racism Dinterview in the last issue came from a section of your and you would do well to take of The Gazette with great department, was passed and her advice on board. Of course, interest. we welcomed your it would be crude and unfair to You deserve some praise for announcement of the video- describe the entire country as your honesty in admitting that recording of police interviews racist but it is equally dishonest you do not take those of us last summer. to deny the existence of racism who work for human rights in To attempt to give the on our streets and in our the NGO sector seriously. We impression that we are all in homes. If your credibility had have known that for years, but some way addicted to not been so shamelessly it is good to see you taking opposition is a self-serving squandered, you, as minister ownership of your indifference factual distortion. To suggest for justice, equality and law towards us in such a public that this is motivated by reform, could take a position of manner. I doubt very much if shallow sentiment about real leadership on this issue. you would get away with a badges of honour is rich That would go much further similar posture towards the coming from someone like towards securing your place in gardaí and the prison officers, yourself who stubbornly wears jurisdictions. If we have history than the reactionary not to mention the licensed the sheriff’s badge of zero focused on the push factors bluster which has become your vintners. It’s time you got your tolerance, albeit with behind migration, it is simply rhetorical trademark. head around the fact that a diminishing pride! to counter your spurious group does not have to be a obsession with pull factors in Vainglorious claims vested interest to become a Push and pull this country. This does not When I got to the part of your stakeholder in policy Your suggestion that those of earn the same kind of interview dealing with criminal development by your us who oppose your policies headlines which you have justice matters, I really had to department. In fact, vested on asylum and immigration generated in the tabloid press, marvel at your vainglorious interests often have conflicts of base our views on emotion but it is a most honourable claims. You spoke about the interest. rather than logic is simply and compelling mode of right to silence as if it existed as What I find more insulting unsustainable. You are the debate. ‘an absolute right’ when you is your suggestion that we person who has put fear at the You justify much of what came into office. Pull the other oppose everything which you centre of public discourse on you do in this area as no one, minister! Your readership propose because not to do so this issue with wildly worse than occurs in other are, no doubt, sufficiently well would mean that we would hyperbolic and prejudicial countries across Europe. It’s versed in the Offences Against lose our ‘badges of honour’. statements about ‘bogus funny, but you always seem to the State Acts and the Criminal This raises a number of issues. asylum-seekers’ and ‘pull fall back on European practice Justice Act, 1984 to know that It is not correct to say that we factors’. When opportunities to justify downward and never there were already numerous oppose everything emanating have been presented to you to upward harmonisation. Lots bases for drawing adverse from your department. For temper the extremism of of things happen in other inferences from silence example, we in the NGO certain public figures – some countries that we would never contained in legislation for sector have been very of whom are close to you, dream of introducing here, which you can claim no credit. constructive in relation to your politically and geographically and it really is the lamest You may have plans to ram a legislation to establish a – you have validated their excuse. coach and four through what is human rights commission. We position with amoral silence. At no stage has my left of the right to silence, but have also indicated a We, on the other hand, have organisation ever accused you the European Court of Human willingness to engage responded to your policy of racism and I disagree Rights (and indeed other constructively on your yet-to- initiatives by consistently strongly with your glib bodies) will have something to be-published proposals with referring to international assertion that the Irish people say about that. You talk about regard to incorporation of the human rights standards, are not racist. Your colleague, giving ‘an even break to the European convention on human minimal constitutional Liz O’Donnell, has recently prosecution’ as if prosecutors rights. In the past, we have guarantees and experience stated that we must not were some kind of oppressed worked assiduously to ensure (good and bad) in other remain in denial about our minority. Would that you

10 Law Society Gazette July 2000 Viewpoint

displayed such compassion to surely defy logic. he won’t attack the horses’ wait for the revisionists. As I really oppressed minorities. I had to smile at your pride leaves me somewhat suspect you don’t trust You hail the prison-building for introducing mounted bewildered. Look at what revisionist historians, it’s as well binge as a major symbol of police. Fair play to you for happened to poor Shergar! to get your own version in first! your self-proclaimed success, putting a few guards on ‘As a certain fact, history will With every good wish for a despite the fact that every horseback. I agree, it does add say that I was right’. I know you very bright future. objective commentator has to the ambience around the are dead against kidnapping but, Yours in stubborn but questioned the wisdom of such capital and they certainly don’t I think, this is called giving principled opposition, a one-dimensional approach to make as much noise as squad hostages to fortune. That is Donncha O’Connell. G penal policy. For a justice cars rushing to the nearest putting it kindly. No doubt, minister to claim prison take-away. However, your some future historians will Donncha O’Connell is director of building as evidence of victory statement that ‘no matter how corroborate your predictions, the Irish Council for Civil in the war against crime must depraved a criminal might be, but I’m afraid you will have to Liberties. Can we prevent house-buyers being hammered at auctions? The proper enforcement of consumer legislation should become the property purchaser’s best friend, writes Pat Igoe

he very desirable property Enter the reserve price Tin a much sought-after area which, of course, is not with all amenities close by had a disclosed. It is held in pectore by pre-auction guide price of the vendors and their agents. £350,000. It was withdrawn But if vendors wish to bid up from sale at £400,000 by the to the reserve price, section 58 auctioneer, seeking a still higher of the Sale of Goods Act 1893 price. Exit unhappy, frustrated requires that the existence of and muttering would-be buyers. the reserve price must be A simple saga, oft repeated. disclosed – as is done in the A waste of surveyors’ fees for Law Society’s General conditions checking the property, of of sale. Would-be purchasers solicitors’ fees for checking are on notice that there is a title and related matters, and of reserve price, whether or not sometimes tortuous told by their solicitors. arrangements with lending Auctioneers have clear duties to would-be purchasers institutions – not to mention Abusing potential purchasers the afternoon off work and the misleading cause a tremendous and recourse if sold a defective But the guide price has no time and emotion invested in amount of ill-will between the kettle, can justifiably feel legal, or indeed any, the property. Irritation at what public and estate-agents’. He neglected? relationship with the reserve are seen as misleading guide went on to forecast that The textbooks on auctioneers price, which is determined on prices would seem to ‘conservative guidelines’ are and estate agents do not even the day of the auction. Since be high, and growing. likely to remain common mention guide prices. The legal the mid-1990s particularly, Auctioneers are admitting practice for the foreseeable standing of guide prices might frequent significant differences to ‘auction fatigue’. future, because the general be that of informed guesses between the guide prices and public has been educated to add given without prejudice. The the secret reserve prices have Spiralling prices a significant premium to guide difficulty arises when would-be increasingly been seen as Dublin auctioneer Simon Ensor prices’. We’ve started, so we purchasers – perhaps not abusive of potential purchasers. of Sherry Fitzgerald must continue? unreasonably – regard guide Reserve prices reasonably acknowledged in a recent issue The question arises as to prices as indicating what enough seek to protect vendors of the Irish Auctioneers and whether our laws and their vendors are seeking. If the from ‘rings’ of colluding Valuers Institute journal enforcement have been too vendors are not satisfied with auction bidders refraining from Property valuer that ‘there can indulgent to auctioneers. Is this their own auctioneers’ guide competition with each other. be little doubt that auction one area where the consumer, prices, what are they looking But clear and glaring guidelines which prove to be who gets widespread protection for and why won’t they tell us? differences between them and

11 Law Society Gazette July 2000 Viewpoint

the often much-lower guide merely enthusiastic and longer would fraud be required. prosecuting authorities, to prices have left auctioneers buoyant opinion and allows the In advertising and in showing bring proceedings in open to cries of ‘foul’. Some of colourful prose so beloved of properties, auctioneers bear in relation to offences under the odium may also pass to the our newspaper property mind the hoary but invaluable the act. solicitor for the vendor who writers. cliché that ‘a closed mouth leaves the auction room with In auctioneers’ brochures, it catches no flies’ – apart from Section 7 of the act refers to the auctioneer to discuss with is commonplace that the ‘guiding’ would-be purchasers false or misleading indications the vendor whether an offer, Dublin suburbs of Foxrock and on the price. of prices of goods for sale. It is already in excess of the guide Blackrock seem to cover a primarily intended to cover price, will be accepted. broad tract of south County Protection for buyers retail shops on the high street Dublin. Less prestigious suburb Can purchasers look to the misleading consumers in Auctions through the ages names are de-emphasised or Consumer Information Act of respect of false price Auctions are an ancient left out. Perhaps the long- 1978 which provides penalties reductions. And, of course, institution. They come standing contract principle of for misleading advertisements? property vendors, if not their through the mists of time and caveat emptor casts too long a Section 8(1) states that ‘a agents, usually have the same range across a wide spectrum shadow. Perhaps it is time for person shall not publish, or status as would-be purchasers. from our familiar upward price the law to be less indulgent. cause to be published, an The recent spate of scandals auction to the downward price A significant factual advertisement … if it is likely in Ireland has rung a loud ‘Dutch auctions’ where the inaccuracy may go beyond the to mislead, and thereby cause wake-up call in government, price is reduced until a buyer protection afforded by the loss, damage or injury to particularly in respect of offers to buy. They stretch small-print disclaimers in members of the public to a companies legislation. The back to classical Greece and auctioneers’ brochures. In his material degree’. There has 1963 Companies Act is no Rome, and earlier. The fall of book Auctioneering and estate been one prosecution of an longer a sleepy aspirational the hammer as the moment of agency law in Ireland, Alan P auctioneer initiated by the tome. The Companies Act, 1999 contract is more recent, being Mahon SC notes that these director of consumer affairs – is to be followed by the preceded in England from the disclaimers will not protect and that was in the early 1990s Companies Act, 2000, which beginning of the 17th century auctioneers from liability for – over a misdescription of a will herald a major (if belated) by ‘an inch of candle’ or an statements wilfuly designed to house size. advance in company law hour-glass as the timespan mislead potential purchasers. The Office of Director of enforcement. within which the best bargain The seminal English Court Consumer Affairs was Perhaps it is now time to could be reached. of Appeals case of Hedley Byrne established by the 1978 act. put the spotlight on protecting So auctions are not new to & Co Ltd v Heller and Partners Among the functions of the consumers seeking to make law. And auctioneers in Ireland Ltd (1964), where the bank was director are: their largest life investment, as clearly do have duties to saved from liability for losses • to keep under general review well as the purchasers of shops, would-be purchasers, not in arising from its negligent practices in relation to factories and farms. The law, contract but in tort and statute. misrepresentation in a financial advertising and its enforcement, should The common law of reference by the words ‘without •to encourage and promote become the property negligence applies insofar as responsibility’, did have a the establishment and purchaser’s best friend. G there is a point when an fundamental legal ratio: people adoption of codes of auctioneer’s sale promotion who hold themselves out as standards for advertising, Pat Igoe is principal of the goes beyond ‘puff’ to factually professionals will be liable for and Dublin-based solicitors’ firm misleading statements. ‘Puff’ is negligent misstatement. No • without prejudice to other Patrick Igoe and Company.

Reporting of family law cases Letter

From: Jennifer Curry, secretary, by the speakers from different family courts. In a ‘straw poll’ out in a Family Lawyers’ Association perspectives. There were also taken at the end of the debate by subsequent write on behalf of the Family lively contributions from the an informal show of hands, a letter to that ILawyers’ Association in floor. It was acknowledged that majority of those present voted newspaper, the opposite was, in relation to our successful annual there is a lack of accurate and against a change in the present fact, the case. The association is conference held on 13 May in consistent reporting of family rule. The main concerns of those interested in views held by other Mallow, Co Cork. law cases, particularly in the opposed to change appeared to members of the profession on This year’s conference Circuit Court. A variety of be client privacy and fear of the issue of reporting family law concerned the in camera rule and options for procuring reports sensational reporting. cases and the manner in which papers were presented by Mary were discussed, including the It should be noted that the such reports might be obtained. O’Toole SC, Dr Gerard Byrne, registrar preparing a note, the headline contained in the Irish Such contributions can be consultant child psychiatrist, parties’ lawyers preparing a note, Times on 15 May incorrectly addressed to the secretary of the Andrea Martin of RTE and a solicitor or barrister in court stated that the Family Lawyers’ Family Lawyers’ Association, Nuala Jackson BL. Both sides of for the purpose of preparing a Association supported relaxation Distillery Building, Church the argument were put forward note, and media presence in the of the in camera rule. As pointed Street, Dublin 7.

12 Law Society Gazette July 2000

Cover story When

At a time of scandal fatigue, the story of children systematically abused in industrial schools touched the hearts of the Irish people. The taoiseach even apologised to the victims on behalf of the state. But, as Karen O’Connor points out, the shine of sincerity will fade from that apology if the matter of liability is not addressed

ears from now, what will surely be seen as one of the shock hall- marks of life in 1990s Ireland will be the revelations of years of abuse perpetrated against children while they were in care in institutions such as industrial schools and reformatories throughout the country. It seems likely that a growing num- ber of these cases will come before the courts shortly. Coming to terms with abuses which occurred in the past and finding a way to redress the injustice caused to so many people is always a difficult step for a society to take, but it is a necessary one for any civilised community. While recent developments in relation to childhood abuse are worthy of comment and may seem to somewhat strengthen the hand of a potential litigant, closer examination would suggest that they do not go far enough. Last year Taoiseach Bertie Ahern, on behalf of the state and its citizens, made ‘a sincere and long overdue apology to the victims of childhood abuse for our collective failure to intervene, to detect their pain, to come to their rescue’. The statement went on to say that too many children had been denied love, care and security. ‘Abuse ruined their childhoods and has been an ever- present part of their adult lives, reminding them of a time when they were helpless …

14 Law Society Gazette July 2000 Cover story INSTITUTIONAL ABUSE sayingsorry isn’t enough

We believe they were gravely wronged … we childhood institutions during the relevant period to must do all we can to overcome the lasting effects of tell their stories to a committee; to inquire into the • Commission their ordeals’. abuse of children in institutions in order to to Inquire into In making this apology, the state did not admit determine the causes, nature, circumstances and Childhood Abuse held liability, but it did signal the introduction of a extent of such abuse; to determine the extent to first meeting number of measures such as the establishment which institutions, management and regulatory last month of a Commission to Inquire into Childhood authorities had responsibility for the abuse; and to • Change to Abuse, the introduction of changes to publish a report to the public. The ‘relevant period’ Statute of the Statute of limitations (extending the is defined as being from and including 1940 (or such limitations concept of disability to include earlier year as the commission may determine) up to excludes victims of childhood sexual abuse), and including the year 1999 and such later year (if victims of proposals on mandatory any) as the commission may determine. physical and reporting of instances of the mental abuse • Is state sexual abuse of children No amnesty or immunity from liability seeking to to be published in a The Commission to Inquire into Child Abuse had limit field of white paper, and the its first public sitting on 29 June at which its potential enactment of chairwoman, Ms Justice Laffoy, stated categorically litigants?

legislation for that in relation to admissions of wrongdoing there MAIN POINTS a register would be no amnesty or immunity from criminal or of sex civil liability. offenders. The institutions referred to are defined as According including industrial schools, reformatories, to the orphanages, hospitals, children’s homes and any Commission to other places where children are cared for other than Inquire into as members of their families. In reality, the Child Abuse Act, vast majority of the children who 2000, the were in care during commission is to the ‘relevant have four main period’ were functions: to detained in provide an industrial opportunity to schools. Over persons who have 100,000 children suffered abuse in were detained in

15 Law Society Gazette July 2000 Cover story

‘Contesting all of industrial schools between 1868 and 1969. In the The role of the state in relation to certifying and year 1949/50, there were 51 industrial schools in regulating these schools is further evident in section these cases right existence – 36 for girls and 15 for boys – housing 3(1) of the Children Act, 1941 whereby ‘the minister up to the steps 6,378 children. By the end of the 1960s, the number may make regulations for the conduct of certified of industrial schools had declined, with 31 schools and, in particular and without prejudice to of the Four remaining in which there were less than 2,000 the generality of the foregoing, such regulations may Courts will children resident. make provision in relation to the education and training to be given to persons detained in such simply prolong Link between the schools and the state schools and the safeguarding of the health of such the process and The Children Act 1908 provides definitions for both persons’. industrial and reformatory schools. Section 44(1) of It is noteworthy that the committee set up by the cause further that act states that: ‘The expression “industrial government to carry out a survey of reformatory and distress to those school” means a school for the industrial training of industrial schools, presided over by District Justice children, in which children are lodged, clothed, and Eileen Kennedy in 1967, stated in its 1970 people who had fed, as well as taught’. ‘Reformatory schools’ are Reformatory and industrial schools systems report: ‘The their childhoods defined similarly but in relation to ‘youthful system of inspection of industrial schools and offenders’. The act goes on to define the expression reformatories has, so far as we can judge, been totally ruined’ ‘certified school’ as meaning ‘a reformatory or ineffective … We are satisfied that the statutory industrial school which is certified in accordance obligation to inspect these schools at least once a year with the provisions of this part of this act’. The has not always been fulfilled but, even if it had, this importance of certification of such schools should would not have been sufficient’. not be underestimated, as it was a crucial part of the link between these schools and the role of the state Destitution, prostitution and drunkeness in relation to their existence. In accordance with section 58(1) of the 1908 act, Certification took place in accordance with those liable to be sent to industrial schools included section 45 of the act, which made provision for the children found begging or receiving alms, destitute examination by the inspectorate into the condition children, those under the care of a parent or guardian and regulations of a school and its fitness for the who by reason of criminal or drunken habits is unfit, reception of children and youthful offenders. The the daughter of a father convicted of an offence under act provided for the appointment by the secretary of section 4 or 5 of the Criminal Law Amendment Act state of a chief inspector of industrial and 1885 (carnal knowledge of a girl under the age of 13, reformatory schools who would be assisted by carnal knowledge of a girl over 13 and under 16 years inspectors and assistant inspectors. Section 46(3) of age respectively), and any child who frequents the says that: ‘every certified school shall, at least once company of a reputed thief or prostitute or who is in every year, be inspected by the chief inspector … lodging in the house used by a prostitute for the or by an inspector or assistant inspector’. purposes of prostitution. Provision was also made for the One particular ground under which a child was withdrawal of certification in detained in an industrial school was contained in the event of the secretary of section 58(1)(b) of the act which refers, among other state being dissatisfied with things, to a parent or guardian who does not exercise the ‘condition, rules, proper guardianship. It appears that this section was management or super- interpreted rather widely by the courts and it was by intendence of a certified school’. far the most common reason for detention.

Practice Management the out•source way... We offer over 20 years hands-on experience of practice management within Irish law firms. Book now for the out•source is available to all sizes of firms nationwide on a full or part-time basis.First Annual Practice • Benchmarking (compare your firm to best industry practice) Management & • Financial Control (compliance with standards, treasury, management accounts etc)Profitability • Practice Management Systems (selection of the most suitable product, implementa-Conference tion etc) -see insert for details • Training (wordprocessing, spreadsheets, accounts packages, powerpoint etc)

Contact David Rowe at: 140-142 Pembroke Road, Dublin 4 • T: 01 664 3402 • F: 01 664 3403 E:

16 Law Society Gazette July 2000 Cover story

allowing for the state in exceptional cases, as guardian of the common good, to supply the place of the parents ‘but always with due regard for the natural and imprescriptible rights of the child’. As previously mentioned, one of the areas in which a change had been promised by the government was in relation to the Statute of limitations. The Statute of Limitations (Amendment) Bill, 1998 was signed by President McAleese on 21 June of this year. It extends the concept of disability contained in the 1957 Statute of limitations to include a person bringing an action ‘founded on tort in respect of an act of sexual abuse committed against him or her’. The extension of disability to include victims of childhood sexual abuse clearly excludes all of those victims who were physically or mentally abused while in care. Arguably, the vast majority of victims will not benefit from the change to the Statute of limitations unless the matter of physical and mental abuse is addressed.

Limiting the field of potential litigants The likelihood is that, as with many of the recent army deafness cases, any potential litigant would have to come within section 3 of the Statute of Limitations (Amendment) Act, 1991 which says that: ‘An action … claiming damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty … shall not be brought after the expiration of three years from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured’. Furthermore, he or she would have to satisfy the court on the question of the date of knowledge criteria contained in section 2(2): ‘for the purposes of this section, a person’s knowledge PHOTOS: [email protected] includes knowledge which he might reasonably have It is interesting to note that in December 1955, in ‘The exclusion of been expected to acquire (a) from the facts observable the State (Doyle) v Minister for Education, the Supreme victims of or ascertainable by him, or (b) from facts ascertainable Court found section 10 of the Children Act, 1941 to be by him with the help of medical or other appropriate invalid. The section in question was amending section childhood abuse expert advice which it is reasonable for him to seek’. 58 of the 1908 act and provided that a child under 15 which was While the state has apologised on behalf of all of us years found destitute and not an orphan, but whose to the victims of childhood abuse, the shine of parents were unable to support it, could be sent to an physical or sincerity will fade from that apology if the matter of industrial school for ‘such time as to the court may mental in nature liability is not addressed. Contesting all of these cases seem proper for the teaching and training of such right up to the steps of the Four Courts – as with child’. This was a case in which the father of a child appears to be other areas of litigation involving the state – will had applied to the court to have the child sent to an completely simply prolong the process and cause further distress industrial school. The mother had deserted and when to those people who, as the taoiseach pointed out, the father’s circumstances had improved he had arbitrary’ were previously ‘helpless’ and had their ‘childhoods sought the return of his child. He was refused custody ruined’. The exclusion of victims of childhood abuse of his daughter by the minister for education. The which was physical or mental in nature from the case went to the Supreme Court on the constitutional changes to the Statute of limitations appears to be validity of section 10. The court declared that the completely arbitrary and has the effect of limiting the section was invalid ‘as being repugnant to the field of potential litigants. constitution inasmuch and in so far as it deprives a Those who suffered childhood abuse while in parent with whose consent a child has been sent to a certified institutions have suffered enough. The state certified industrial school … of the right to resume should make every effort to expedite matters to control of the child so as to provide for its education afford these victims the opportunity of redress and when that parent is willing and able to do so’. thereby give genuine and practical meaning to the The court had considered both the inalienable taoiseach’s stated goal to ‘do all we can to overcome right and duty of parents to provide for the education the lasting effects of their ordeals’. G of their children in accordance with article 42.1 of the constitution, and the provision under article 42.5 Karen O’Connor BL is a Dublin-based barrister.

17 Law Society Gazette July 2000 Litigation A basic guide to discovediscove Discovery is a central part of litigation, but some practitioners regard it with trepidation because it can often involve sifting through reams of documents and the preparation of extensive accompanying affidavits. Here, Eoin Dee looks at its essential elements

iscovery is a way of ensuring that the the party seeking discovery must seek voluntary full facts relating to any litigation are discovery of the documents before issuing any actually brought before the courts. This motions, ‘furnishing the reasons why each category is fundamental to the administration of of documents is required to be discovered’. This will D justice and is provided for by order 31 at least compel the party seeking discovery to of the Rules of the Superior Courts. provide a prima facie reason why the documentation Until statutory instrument 233 of 1999 came into should be discovered. But the new rules will not effect on 3 August last year, what usually happened necessarily stop the party resisting discovery from was that the plaintiff’s solicitor would seek voluntary trying to withhold documentation. discovery and list the documentation required. In an ideal world, litigation lawyers would have a There would then follow a series of ‘bargaining’ set of hard and fast rules telling us what we must letters between both sets of solicitors concerning produce on discovery and what we can avoid what would be handed over. Sometimes agreement producing. Unfortunately, no such rules exist. All we would be reached, sometimes not. Lacking have are guidelines. agreement between the respective solicitors, the So, first, let’s look at what must be discovered. plaintiff’s solicitor would serve the defendant’s There are three essential elements to this: there solicitor with a motion for discovery. This would must be a ‘document’, that ‘document’ must be bring the matter before the court. ‘relevant’, and the ‘document’ must be in the Things have changed as a result of SI 233. Now, ‘possession, custody or power’ of the person against

WHAT IS A DOCUMENT? It is clear that not all pieces of paper can Henchy J defined a document as including constitute ‘documents’ for the purposes of ‘anything which, if adduced in evidence at the discovery: a piece of paper must contain hearing of the proceedings, would be put in or information to constitute a ‘document’; a blank annexed to the court file of the proceedings’. In sheet is not a ‘document’. It should also be this same case, Kenny J defined the main noted that a photograph can constitute a components of a document as being ‘something ‘document’ as was the case in England in Lyell v which gives information’. In principle, there Kennedy (No 3) ([1884] 50LT730). would seem to be little doubt that videotapes This decision appears to have found favour containing information are documents, as in here. In a High Court case in 1950, Lynch v Grant v South Western and County Properties Fleming, McLoughlin J stated that x-rays or Limited ([1975] CH185). photographs were ‘not capable as being In the modern era, of course, it would seem interpreted as the thoughts or ideas of any that computer disks should also be properly person’. This was overturned in the Supreme regarded as documents for the purposes of Court. In McCarthy v O’Flynn ([1977] IR127), discovery.

18 Law Society Gazette July 2000 Litigation ryry

whom discovery is sought (see panels). plaintiff and/or the defendant. •There must be There must be a document. The question of It should be noted that if an allegation is a document to what exactly constitutes a ‘document’ has been the admitted, then it ceases to be a ‘matter in question’ be discovered subject of much debate. Certainly, it would seem that and so no discovery can be made in relation to it. • That document the word ‘document’ should be construed widely due This is a crucial factor which should be borne in must be to the more modern methods of storing and mind by defence lawyers when drafting a relevant relevant compiling information. In the UK, the Civil Evidence defence. It is best not to blindly deny allegations, • It must be in Act 1968 takes this into account and puts a fairly such as negligence, breach of duty, breach of the ‘posses- modern spin on things. But to most litigation lawyers statutory duty and so on, as a blind denial increases sion, power on a day-to-day level, it is still safe to say that the amount of ‘matters in question’ and or custody’ of the person discovery usually concerns normal paper documents. consequently the scope of discoverable material. against whom The document must be relevant. A vital point is Regarding the concept of relevance, one matter discovery is that ‘relevance’ must relate to ‘matters in question’ in merits special mention. This is the concept of the sought the cause or matter before the court. So the question ‘fishing expedition’. Discovery will not be ordered to •Various may be asked: what does ‘matter in question’ refer to? enable a party to conjure up a completely new case objections to Consider, for instance, an action to recover land. In or to go trawling for evidence (see Barclay discovery such a case, the ‘matter in question’ is not the actual Administration Incorporation v McClelland [1990]

MAIN POINTS thing in dispute (the land), but the alleged title of the FSR381).

19 Law Society Gazette July 2000

Litigation

privilege. This says that communications between a WHAT IS A RELEVANT DOCUMENT? lawyer in his professional capacity and his client are privileged if they are confidential and for the purpose This is a very important aspect of discovery and one which doubtless of providing that client with legal advice. However, causes clashes between lawyers when trying to agree discovery on a these purposes are construed broadly to include voluntary basis. What exactly is ‘relevant’ to the proceedings? communications aimed at keeping the client and There was a classic decision handed down by Brett LJ in the English lawyer informed. But the boundaries are not limitless case of Compagnie Financière Du Pacifique v Peruvian Guano Company and do not cover all dialogues between lawyer and ([1882] 11QBD55). In his decision, Brett LJ stated that: ‘it seems to me client. For example, the very fact that the person that every document relates to the matters in question in the action speaking is a lawyer and the person to whom he which not only would be evidence upon any issue but also which, it is speaks is his client doesn’t, in itself, afford the reasonable to suppose, contains information which may – not which must protection of legal advice privilege. And, of course, – either directly or indirectly enable the party requiring the affidavit either correspondence in furtherance of a criminal act does to advance his own case or to damage the case of his adversary’. not attract legal advice privilege. It is also vital to This test has been tried and approved on several occasions and is now remember also that the concept of legal advice seen as a reliable one. Certainly, it has been accepted in Ireland, being privilege covers communications only. analysed and approved by Kenny J in Sterling Winthrop v Farbenfabriken In principle, the fact that communications pass via Bayer AG and applied by Costello J in Irish Shell v Dan Ryan. a third party should make no difference to the legal advice privilege rule. However, such a third party must be the agent for the solicitor or client for the The document must be in the ‘possession, ‘In an ideal purpose of communicating with the other party to custody or power of the person against whom give or obtain legal advice. It also seems to be the discovery is sought’. One can question what these world, litigation case that communications between a lawyer and a words actually mean. In Bula Limited v Tara Mines lawyers would third party from whom he obtains information which ([1994] 1LRM111), it was stated that ‘a document is he passes on to his client are also privileged because within the power of a party … if he has an enforceable have a set of there is no basis for separating the parts of the legal right to obtain from whoever actually holds the hard and fast lawyer/client communication from other parts. document inspection of it without the need to obtain The second arm of legal professional privilege in the consent of anyone else’. The legal enforceable rules telling us the UK is litigation privilege. The basic rule of right test has subsequently been applied in Irish what we must litigation privilege is that confidential Intercontinental Bank Limited v Anthony Brady communications made after litigation is started, or (unreported, Supreme Court, 1 June 1995, Blaney J) produce on even contemplated, between (a) the lawyer and client, and also in Charleton v Northern Bank Finance ([1979] discovery. (b) the lawyer and his non-professional agent or (c) IR149). the lawyer and a third party, for the sole or dominant In the English case of B v B ([1978] FAM181), Unfortunately, no purpose of such litigation (for seeking or giving Dunne J stated that custody meant ‘the actual physical such rules exist’ advice or obtaining evidence or information leading or corporeal holding of a document regardless of the to such obtaining), are privileged from production. It right to possession’. Dunne J’s ruling in this case is is necessary, as with advice privilege, that the interesting not only because it provides a definition of communication be confidential. In this way, no custody, but also because it addresses the concept of communication by the opposing party can ever be someone who has the right to possess a document. In confidential or privileged, for example, letters this case, Dunne J stated that ‘an enforceable right to between the opposing lawyers during the course of a inspect’ a document could be summed up by the word particular case. ‘power’. The matter was further addressed by Lord So what is the situation regarding legal Diplock in Lonrho Limited v Shell Petroleum Limited professional privilege in this jurisdiction? It is ([1980] 1WLR6276365), where it was stated that accepted in an Irish context that proceedings must be ‘power’ means an ‘enforceable legal right to obtain in train or contemplated in order to attract the from who actually holds the document inspection of it privilege. This opens up another issue, namely, when without the need to obtain the consent of anyone else’. are proceedings ‘contemplated’? In Ireland, the matter has been addressed in Silver Objections to discovery Hill Duckling v Minister for Agriculture ([1997] IR289 Of all the objections one can make to discovery in any [1985] ILRM516). In this case, O’Halloran J followed particular case, possibly the one most cited is legal (or was at least influenced by) the decision in professional privilege. The principle was first Crompton Business Machines Ltd v Customs & Excise (No articulated by Brougham LC in Greenhaugh v Gaskill 2) ([1974] AC405) and stated that once it became (1833) and refined by Jessel MR in Anderson v Bank of apparent to both sides that they would not reach British Colombia (1876). The basic idea is that one agreement and that arbitration proceedings were must be able to confide completely in one’s lawyer in inevitable, then litigation could be regarded as order to properly defend legal proceedings or to apprehended or threatened. properly prosecute them. As in the UK, where there is legal advice privilege In the UK, there are two parts to the concept of and litigation privilege, the Irish courts now seem to legal professional privilege. The first is legal advice distinguish between legal advice and legal assistance.

21 Law Society Gazette July 2000 Litigation

actual or contemplated litigation is inadmissible in WHAT CONSTITUTES POSSESSION? the same or any subsequent litigation connected to the same subject matter. The reasoning behind this is What constitutes ‘possession, custody or power’? The Rules of the to encourage settlement of cases, and it is felt in Superior Courts 1986 refer to documents in one’s ‘possession or power’ judicial circles that people are more likely to be able (order 31, rule 12(i)). The UK rules refer to ‘possession, custody or to settle matters if they know that nothing they say power’. Certain Australian states follow the Irish example, while the US can later be used against them by the opposing party. Federal rules of civil procedure refer to ‘possession, custody or control’. So how does all of this impact on the topic of It should be noted by the litigation lawyer, however, that only one of the discovery? Imagine a case in which there are two or elements of ‘possession, custody or power’ need be satisfied for the more defendants. What if the plaintiff’s case against document to come under the ambit of discovery. It should also be noted one of the defendants is settled? Can the remaining that order 31, rule 12 (i) of the Irish superior court rules refers to defendant obtain access to documents concerning the ‘documents which are, or have been’ in ‘the possession or power’ of the settlement negotiations in the hope that this will help one against whom discovery is sought. his defence or enable him to get out of the action for In this way, there appears to be no past or future ‘cut-off time’ in less money? This is how discovery can come into the respect of which discovery may be made. The effect of this is that picture. Certainly there is English authority to state ‘relevant’ documents coming into a party’s power or possession at any that the use of the words ‘without prejudice’ on the stage after proceedings have begun, and even during trial, are head of communications doesn’t confirm protection discoverable. Indeed, order 31, rule 15 specifies that discovery may be against discovery: this was the case in sought ‘at any time’. Buckinghamshire County Council v Moran ([1990] CL623CA). This issue was addressed in the well-known case of The ‘without prejudice’ rule, however, means that Smurfit Paribas Bank Ltd v AAB Export Finance Ltd admissions made in the course of negotiations to ([1990] 1IR469; [1990] 1LRM4589). In this case, the settle disputes are inadmissible. But if there is no plaintiffs sought discovery of documents consisting of dispute, then clearly the rule cannot apply, though it instructions which the defendant’s solicitors had can apply to a letter initiating settlement received from their client to enable them to complete negotiations. If a written agreement results from such a legal mortgage which was in issue in the negotiations, the rule applies to the preceding proceedings. In the High Court, Costello J held that negotiations but would not seem to apply to the the documents were not entitled to privilege because actual agreement itself because this is not a document (a) they did not contain or request legal advice, (b) which would be described as a ‘without prejudice’ they did not contain any information or remarks communication. which one might see as ‘confidential’, (c) they What if, after negotiations have taken place and a consisted of statements of fact relating to a legal matter has been settled, an issue then arises as to transaction of a non-litigious nature, and (d) they costs? Is ‘without prejudice’ privilege a problem contained no information of a confidential nature. when trying to decide the issue of costs? This may be In the Supreme Court, where the appeal was of particular importance in matters such as injunctive rejected, Finlay CJ held that where legal professional proceedings. In the UK, the practice has grown up of privilege is claimed for legal assistance as distinct using the expression ‘without prejudice save as to from legal advice, an applicant would have to satisfy costs’ on letters in order to avoid this problem. In the court that the legal assistance rendered by a Ireland, practitioners will be familiar with the phrase solicitor to a client is closely or approximately linked ‘without prejudice to taxation’ used in this context. to the conduct of litigation and the administration of justice in the courts. Executive privilege Legal advice privilege apart, how else might one ‘Without prejudice’ aside, in an Irish context there resist discovery of documentation? There are many are many more objections to making discovery. A other means to do this: public interest immunity, major objection in this jurisdiction would be that of privilege against incrimination, diplomatic privilege, executive privilege. This is privilege which is likely to statutory rights to privilege, and the constitutional come to light in any jurisdiction where a government right to life and bodily integrity (see Burke v Central institution or public body finds itself the defendant in Independent Television plc [1994] 2IR61). Each of these proceedings. The public service will often object to would take an entire article by itself, so for the sake discovery of documentation on the grounds that it of brevity I propose to examine one heading from impedes the smooth running of the public body in this list which is important to Irish litigation lawyers: question. Indeed, there was a traditional common law ‘without prejudice’ privilege. practice that government ministers could not be compelled to give discovery of documentation. This ‘Without prejudice’ privilege concept carried over into the laws of the Irish Free What distinguishes ‘without prejudice’ privilege from State in 1922 and was affirmed in the case of Leen v other forms of privilege is that it largely concerns President of the Executive Council ([1926] IR456). information known to opposing parties. The basic In order to avoid making discovery, however, there rule is that evidence to prove admissions made by a had to be an assurance from a senior civil servant that party in the course of genuine negotiations to settle the disclosure of the document would be detrimental

22 Law Society Gazette July 2000 Litigation to the public interest. In the case of Murphy v Dublin produced for inspection. In this case, Finlay J Corporation ([1972] IR215), it was stated in the High reiterated the principle laid down in Murphy v Court that a minister had no absolute right to Dublin – that is, that the administration of justice is withhold production of a document. A ministerial the job of the judiciary, as is the decision on what is objection to production of a document would be and isn’t in the public interest. accepted unless that objection was not made in good This has led to certain conclusions: the executive faith. Alternatively, to force discovery of such a (state body) cannot prevent the judiciary from document, it would have to be shown that the examining relevant documents for the purpose of ministerial objection was one that no reasonable deciding if they must be produced. There is no need minister could make or was based on a for the judiciary to examine particular documents misunderstanding of issues in the case. before deciding if they are exempt from production. This particular case showed a trend against Furthermore, the rank of the person in the public absolute discretion on the part of the public service, service preparing the document, or for whose use as indeed had been seen earlier in O’Dalaigh CJ’s such documents are prepared, does not matter in judgment in The State (Quinn) v Ryan ([1965] IR70). deciding questions of privilege. The significance of Murphy v Dublin is that the It should be borne in mind here, however, that the Supreme Court established that only the courts had plaintiff taking an action against a public body now the constitutional competence to administer justice. has an additional weapon in his armoury when it For this reason, the ultimate power to examine comes to obtaining documentation from the state. documents relevant to proceedings to ascertain if This is, of course, the Freedom of Information Act, they are discoverable lies with the courts. 1997. Many plaintiffs will now simply avoid the One case relating to Murphy v Dublin that concept of discovery and use the rights enshrined in deserves mention is Ambiorix Limited v The Minister this legislation in order to gain the information they for the Environment (No 1) ([1992] IR277). This came need for their particular case. years after the Murphy decision and the state was still Only time will tell how useful it will prove to attempting to claim immunity for certain classes of plaintiffs and whether or not it will render obsolete documents and was attempting to introduce a line of any or all of the rules governing executive privilege English legal thinking to proceedings: namely, that outlined above. G once public interest immunity has been properly raised, the burden is on the party seeking disclosure Eoin Dee is a solicitor with the Waterford firm Nolan of documents to show why the documents should be Farrell & Goff.

WARNING

There is something not entirely legal on page 46.

23 Law Society Gazette July 2000 Apprentices

All solicitors have experience of apprenticeships, and their memories can vary from fond recollections of valuable learning and personal development to flashbacks of disastrous lost opportunities. At a time when more than 1,200 apprentices are currently indentured, trainee solicitor John Connellan considers the relationship between master and apprentice

here seems to be universal acceptance that sakes as for their masters’.) the master/apprentice relationship has When the master/apprentice relationship goes changed dramatically over the last number wrong, lack of supervision and trust can be major of years. This is only to be expected: as the factors. Indeed, all of the masters interviewed for this T profession changes, so too do the roles of article identified the importance of supervision as office staff. In recent years, modern practices have seen key to the success of the relationship. And those the arrival of paralegals and the development of the apprentices who felt that they were left unsupervised role of the legal executive. In an era when apprentices identified this as one of the fundamental flaws in the can simultaneously fill the role of paralegal, secretary process. Since the teacher/pupil relationship is based and, occasionally, solicitor, what is the true meaning of on trust, masters must be able to trust apprentices the master/apprentice relationship? to discharge the tasks they set and, similarly, For solicitors and apprentices alike, the focus seems apprentices must be able to trust masters in the to be primarily on the teaching or training of instruction they give. apprentices. ‘In days gone by, the relationship was that Many of those interviewed emphasised the of parent/child’, says Brian Gallagher of solicitors importance of communication in the master/apprentice Gallagher Shatter. ‘However, the modern relationship relationship. Ann Lalor, an apprentice with McCann The new meaning of ma apprent

is more akin to teacher and pupil’. He adds that the FitzGerald, notes that: ‘The masters are prepared to relationship& involves ‘two-way learning as much as take the time out to teach you. There is a personal possible in practical matters’. relationship, but they are not your best buddy. It’s a Berchmans Gannon of solicitors Gannon Liddy notes relationship on a professional basis’. that ‘Historically, I would have perceived apprentices as With this in mind, it is interesting to note the being sort of a pupil. Today, an apprentice is somebody number of masters still in touch with their former who comes in with some form of appreciation of the apprentices. It seems that, given the right set of workplace, so it’s a hands-on learning experience’. circumstances, the relationship can be more than just Raphael King of solicitors McCann FitzGerald master/apprentice or employer/employee. describes the master/apprentice relationship in succinct terms: ‘For the apprentice, it is a learning relationship: Finding fulfilment learning the tools of the trade and the skills needed to be Asked whether he considered being a master fulfilling, a lawyer. We are training what we hope will be our Brian Gallagher was positive, terming it ‘a rewarding future partners’. experience’. Berchmans Gannon’s response to the same This benevolent interpretation of the relationship is question was more of a lament: ‘Not any more’, in stark contrast to the experience of one recently- he said. ‘Of old, it was one-to-one; today, there’s a qualified solicitor. She describes her initial experience more professional approach which takes mere with her first master as being ‘thrown in at the deep end personality out of it’. with no supervision’, adding that her Sunday evenings Some masters aspire to mould their apprentices into were destroyed by the contemplation of Monday great solicitors, while others seem to prefer a more morning face-offs with her master: ‘They were the symbiotic relationship, as modern apprentices bring worst. I would have a knot in my stomach. I was terrified more to the offices where they train. It is no longer of her’. (Several of the people interviewed for this piece uncommon for an apprentice to have a post-graduate wished to remain anonymous, as much for their own qualification or valuable work experience.

24 Law Society Gazette July 2000 Apprentices

Furthermore, apprentices are more likely to have work for a new master: ‘It was like going from hell to greater life experience, such as time spent travelling or heaven’, she says, adding that apprentices should not stay working abroad. in untenable situations. ‘If you are not getting experience, In part because of this new breed of apprentice, there you are being exploited’. are many in the profession who can point to existing According to Brian Gallagher, ‘apprentices are asked to master/apprentice partnerships and even more who do more a lot earlier, and more is expected of them’. note the increasing retention of apprentices once they As workloads increase across the board and affordable have their names added to the roll of solicitors. For ancillary staff become as commonplace as Charvet shirts, it many, taking on an apprentice is viewed as a rewarding is only natural that an apprentice’s remit expands. experience because it adds a further dynamic to the Berchmans Gannon feels that apprentices are under ‘a lot workplace and can on occasion lend an interesting edge more pressure because the role – I think of necessity – has to the office environment. The presence of a younger changed. But I actually think it is better for everybody professional-in-training can be regarded as concerned’. beneficial by both staff and clients alike. The Law Society has recognised the Looking at things from the opposite changing role of apprentices and has vantage point, many apprentices find altered some of its programmes their apprenticeships fulfilling on a accordingly. ‘The Law Society has number of levels. For some, the most increased the resources it devotes to the significant part of their experience is vocational side of an apprentice’s training’, learning the practicalities of law. But others observes McCann FitzGerald’s Raphael stress the importance of their relationship with King. ‘The apprenticeship officer acts their masters. Indeed, several apprentices who in the best interests of apprentices and participated in this article were more than happy to she liaises carefully with the masters in the offices’. So are apprentices value for money? The simple answer is yes. Certainly many apprentices, if not the vast majority, feel that they are poorly paid in the current economic climate. Some draw comparisons with trainee accountants, who can expect to earn more than £16,000 a year at a stage comparable to a post-professional course apprentice aster – a figure beyond the wildest dreams of many current apprentices. And many recently-qualified solicitors and apprentices feel that the introduction of a realistic living wage set by the Law Society would be a step in the right direction for apprentices and masters alike. tice The future of the profession Although it may not be reflected in the wages they pay, recount (off the record) lunches and evenings of revelry most masters have come to appreciate the value of a spent with their masters around the cities and towns of dedicated apprentice. In the words of Raphael King: ‘We Ireland. don’t look upon apprentices as a short-term inexpensive resource; on the contrary, we take a long-term view. The Too much, too soon? quality of the firm in ten years’ time is only as good as the As noted above, one of the foundations for a successful quality of our apprentices and the training of our master/apprentice relationship is appropriate apprentices’. supervision. But as the profession blithely bemoans the Indeed, most would agree that today’s apprentices can ever-increasing amount of business, clients and, hence, be viewed as quite simply the future of the profession. workloads – and simultaneously recognises significant The master/apprentice relationship has changed staff shortages and staff costs – are apprentices getting substantially over the years and the better the the supervision they need? apprenticeship an apprentice is given, the better a solicitor Anecdotal evidence would suggest that apprentices they will be at the end. With the profession under have a far higher level of responsibility than ever pressure, particularly in relation to staffing and before. Indeed, several masters acknowledge that recruitment, perhaps the by-words of the modern apprentices are working rather than training. For some master/apprentice relationship should be supervision, apprentices, there is the danger of over-exposure at too communication and respect. early a point in their apprenticeship. One solicitor Apprentices are the future colleagues and partners of notes that during her apprenticeship she was Ireland’s legal profession. Without overstating the point, interviewing clients within three weeks of starting at a today’s apprentice could be the present master’s most firm and was negotiating fees soon after. She describes rewarding investment. G the pressure in the following way: ‘I went in confident and by the end of it I was a complete wreck’. John Connellan is an apprentice solicitor with the Dublin firm Things changed radically once she left and went to Gibbons Associates.

25 Law Society Gazette July 2000 Employment law Equal m The sweeping provisions contained in the Employment Equality Act, 1998 mean that you could be advising a growing number of your clients on their recruitment and employment practices. Michelle Ní Longáin explains what employers need to do to ensure that their procedures comply with the legislation

ormally a person must have a contract of employment before he or she can take legal action against an employer, but the Employment Equality Act, 1998 means that Nprospective employees may now have a cause of action even if they are unsuccessful. This issue has received considerable attention recently with the widespread reporting of the case brought by Dr Noreen Gleeson against the Mater Misericordiae Hospital and the Rotunda Hospital, where she claimed sex discrimination in the recruitment process engaged in by the two hospitals. She succeeded in her claim and was awarded £50,000 by the Labour Court. That case was heard under the Employment Equality Act, 1977, but this has now been replaced by the 1998 act which has greatly expanded the prohibited grounds for discrimination. access to employment, conditions of employment, Under the 1998 act, discrimination on any of the training for or experience in relation to employment, following grounds is prohibited in recruitment and in promotion or re-grading, and classification of posts. employment generally: gender, marital status, family Courts and tribunals have taken a view under the status, sexual orientation, religion, age, disability, earlier equality legislation that employers must be pro- race/nationality/ethnic or national origins, and active in avoiding discrimination. This line of reasoning membership of the travelling community. first emerged in Ireland in the Labour Court in sexual Claims on gender grounds are treated significantly harassment cases, such as the first reported case in 1985 differently by the 1998 act in that the compensation (EE02/85). In that case, the court held that ‘freedom which may be awarded to an unsuccessful candidate from sexual harassment is a condition of work which an who was discriminated against is unlimited, and such employee of either sex is entitled to expect. The court claims can be brought in the Circuit Court. Candid- will accordingly treat any denial of that freedom as ates who believe they have been discriminated against discrimination within the terms of the Employment under any of the other grounds may be awarded a Equality Act, 1977’. maximum of £10,000. In the 1988 decision EE02/88, the court held that The act prohibits discrimination in relation to ‘freedom from sexual harassment is a condition of work which an employee of either sex is entitled to expect. CLAIMS BY UNSUCCESSFUL CANDIDATES The court considers that employers have a duty to ensure their employees enjoy such working conditions’. Job applicants who believe they have been discriminated against may bring In a 1993 case, An employee v employer [ELR75], an claims in respect of any of the following: employee claimed that she was suffering on-going • advertising which is perceived to be directly or indirectly discriminatory harassment but that the employer took inadequate steps •failure to short-list a candidate who believes that they have met the to prevent what was happening, was unsympathetic essential criteria for the job towards her and acted in an ineffective manner. •failure to select a candidate following interview In the 1996 case Alan v Dunnes Stores Limited •failure to allow a candidate to progress from one stage of recruitment to [ELR203], the Employment Appeals Tribunal held that another (for example, from interview to assessment exercise or vice versa). there was a onus on an employer to inform, educate and instruct its employees on sexual harassment. In that

26 Law Society Gazette July 2000 Employment law measures

state that in dealing in cases of sexual harassment, it does and will take into account steps taken by employers to eliminate and prevent sexual harassment in the workplace. Whilst accepting that an employer cannot guarantee total prevention of harassment, the court will look for and take note of what steps have been taken. The adoption of a code of practice, the adoption of a policy statement on prevention of sexual harassment, the existence of guidelines as to how all staff should behave and the establishment of clear grievance procedures all constitute the kind of “reasonable steps” which employers should adopt and which will be accepted by the court as evidence of the employer’s bona fides in this type of dispute. Clearly, information about steps must be widely circulated in the place of work and information on the employer’s attitude to acts of sexual harassment made available to all staff’.

Taking reasonable steps In this case, the court did not consider that the action of the board in instructing supervisors and top management as to how complaints of that nature should be dealt with constituted reasonable steps. It stated that employers ‘have a duty to ensure that employees enjoy working conditions free from sexual harassment’. The Labour Court decision that the employer was vicariously liable case, the employer dismissed a security manager on the was overturned by the High Court on the basis of the grounds of gross misconduct. The employers treated wording of the Employment Equality Act, 1977. the actions of the claimant which led to his dismissal as The reasoning behind the Labour Court’s approach sexual harassment. The tribunal stated that: ‘whether was that, because of the nature of discrimination issues behaviour amounts to sexual harassment in a particular such as harassment, it was not sufficient for an employer incidence is determined from the point of view of the to wait for something to happen and then to prohibit its victim and what she/he regards as acceptable behaviour. reoccurrence or to presume that employees would know Behaviour regarded as acceptable and innocent by the that certain types of behaviour were wrong. It required perpetrator, his colleagues and others may nonetheless employers to adopt a policy, pointing out the nature of be unacceptable to the victim and so could constitute the offence, the fact that it was not going to be tolerated sexual harassment. The tribunal, by majority on this and urging employees not to do what was prohibited or point, holds that this put an onus on the employer to to suffer specified consequences if they did. Employers put in place a programme to inform, educate and • Unsuccessful who did not have such policies in place would be held job candidates instruct its employees on the issue of sexual harassment. liable on the first occurrence of harassment, while those can take legal The failure of the respondent to discharge that onus in that did at least had a prima facie defence that they had action against this case was fatal’. employers taken reasonable steps to prevent the event occurring. The tribunal held the dismissal to be unfair because, • Employment The US Supreme Court has taken a similar line in while it accepted the female employee’s version of Equality Act, relation to other forms of discrimination. In the cases of events, it considered that dismissal was disproportionate 1998 greatly Burlington Industries Inc v Ellerth (US Supreme Court No to the behaviour complained of. It ordered the re- expands the 97-659) and Faragher v City of Boca Raton (US Supreme engagement of the claimant. grounds for Court No 97-282), the court held that in claims of sexual The only Irish High Court judgment on sexual discrimination harassment employers that do not have a policy against •You should harassment was Health Board v BC [EE10/92], a 1992 sexual harassment in place, which is both notified to staff advise case taken under 1977 legislation, where the Labour and operational, would have considerable difficulty in employers to Court approach is well set out. A female employee had review their defending a claim of sexual harassment, although they been seriously sexually harassed by two male employees. recruitment would have the opportunity to attempt to do so. Vicarious liability was the main issue addressed by the practices The US courts have also followed these cases in court. The Labour Court said: ‘The court wishes to applying them to race discrimination cases. It is safe to MAIN POINTS

27 Law Society Gazette July 2000 Employment law

If they are to carry out interviews on an individual DIRECT AND INDIRECT DISCRIMINATION basis, then they must be acutely aware of what is The Employment Equality Act, 1998 prohibits discrimination, whether it is expected of them and be scrupulously fair in how they direct or indirect. Direct discrimination is less favourable treatment of an go about it. employee on a discriminatory ground. It may not be deliberate treatment, The same selection committee should ideally but it can usually be identified. Indirect discrimination is a more difficult conduct the entire selection exercise to ensure concept. Even if an employer applies the same rules to all candidates, a continuity and consistency of decisions. The exercise successful claim for discrimination may still be brought. This may happen consists of the following stages. if the rule has a significantly greater adverse impact on one group than Advertisement of the post. Posts should be another, with the groups being distinguished on a discriminatory ground. advertised and not filled by word of mouth or by The most usual example is lower pay/benefits for part-time workers, recommendations from existing staff. This policy was who are usually married women with children. This may indirectly found to discriminate on the grounds of religion in discriminate on the grounds of gender, marital status and family status. industry in Northern Ireland and on grounds of race in An employer must be able to justify indirect discrimination on the gender the car industry in England. If jobs are not advertised, ground by objective factors unrelated to the employee’s sex. Indirect members of minority groups that are unrepresented in discrimination on the other grounds may be justified by the employer as the workplace will not know of their existence or have being reasonable in other circumstances of the case. This is a less the opportunity to apply. difficult test to satisfy, however. It is advisable to ensure that an employer The director of equality investigations is empowered can always objectively justify any indirectly discriminatory practices. If so, to conduct investigations and may do so where a the practices will be reasonable in all the circumstances. company does not advertise positions but appoints new employees/officers. The Equality Authority may injunct a recruitment exercise if the advertisement seems to be assume that Irish tribunals and courts will require discriminatory. The advertisement must be prepared by employers to have in place policies aimed at avoiding the selection committee – or at least approved by the any form of discrimination occurring before it actually committee on the basis of essential and desirable does occur. If they don’t, they are unlikely to be able to criteria. deny vicarious liability. Discrimination claims can be brought by people who Again, simply having a policy is not enough. An have not even applied for a job but who have seen an employer must be able to show that all employees have advertisement that, on the face of it, indicates that an been made aware of the policy and have been given employer intends to discriminate in the selection suitable training. In particular, recruiters must be given process with no justification for doing so. For example, training to ensure that they can properly implement an advertisement saying that employees must be aged the policies. Refresher training is also advisable. between 30 and 45 could give rise to successful claims by individuals who would have been potential Recruitment practices applicants for the post had it not been for the Recruiters cannot simply select the candidate who discriminatory wording. Claims could be brought both appeals to them most for whatever reason. The by individuals under 30 and over 45, as the law does not concept of ‘face fits’ is well recognised in domestic and simply protect older workers, unlike the US age- international discrimination law, and there will be little discrimination legislation. An employer will only sympathy for recruiters who operate on that basis. The successfully defend the claim if it can be shown that the net result is that recruiters often appoint staff who are age requirement is essential for the post, and that may like themselves, therefore perpetuating the identity of be difficult to prove. the existing group (for example, the appointment of Application forms/CVs. It is generally better to white Irish heterosexual non-disabled male candidates require candidates to complete a standard application by recruiters who also fit that description). That is not form in a selection exercise to ensure that all candidates to say that recruiters can’t select such a candidate, but are being assessed on the basis of the same objectively- they must have objective and justifiable reasons for necessary information. You should ensure that the their selection, and must be in a position to defend questions asked in the application are not of themselves against allegations of discrimination. discriminatory. The suggested approach to recruitment may seem a The date of birth of the employee is usually very onerous task, but it simply means that employers irrelevant. Their national or ethnic origins are must formalise the selection process they may already irrelevant. Any disability which they may have is follow to a degree. A selection committee should be irrelevant, save that it is advisable to include a question nominated for each post. It is advisable that more than asking candidates whether or not they have a disability one person conducts each selection exercise to avoid which they think you should be aware of, and whether allegations of individual bias or favouritism. If possible, or not there are any adjustments which they need to the selection committee should be as diverse as accommodate them in attending the interview and/or possible, particularly in respect of gender and race. in performing the post, if appointed. The The greater the diversity, the better. Smaller marital/family status of a prospective employee is companies or sole traders will obviously have a irrelevant. In particular, as is now well known, any difficulty in doing this, but they should be aware of questions about how the children of a prospective best practices and seek help from outside, if necessary. employee are to be cared for during the working day

28 Law Society Gazette July 2000 Employment law will lead to a clear finding of discrimination. people outside the committee. Assessment sheets should ‘If jobs are not Questions about the occupation of the parents of the be retained for at least 12 months after the candidates could also be discriminatory, particularly on appointment, as claims may be brought during that advertised, the ground of membership of the travelling community. period. The original assessment sheets will be members of Such information is not relevant and implies the ‘face important evidence for the equality officer in making a fits’ approach. determination. minority groups Drafting the job description and person The only exception to ensuring identical that are specification. The job description should list the duties arrangements for interviews is where an interview to be carried out by the prospective employee. The arrangement may indirectly discriminate against a unrepresented in person specification should set out essential and candidate. If a candidate has identified a medical need the workplace desirable criteria to be satisfied by the successful or disability in their application form or CV, that must candidate. Both of these documents should be given to be taken into account, where possible, in arranging the will not know of candidates with their application forms. The committee interview. For example, holding an interview in a room their existence should ensure that all of the criteria are necessary and with fluorescent lighting may adversely affect a are not arbitrary and discriminatory. For example, a candidate with epilepsy who may be sensitive to such or have the requirement that an employee will have a certain lighting, thereby damaging his performance. If the opportunity to amount of full-time work rather than part-time work interview is to take place on a second floor and there is experience could be indirectly discriminatory on the no lift, a candidate who uses a wheelchair or walking aid apply’ grounds of gender, marital and family status and may find himself unable to attend the interview. It is possibly on the grounds of disability. As far as possible, likely that such ‘discrimination’ could be rectified by the criteria should be capable of objective assessment; interviewing the candidate on a ground floor. subjectivity can lead to allegations of discrimination. Feedback. If unsuccessful candidates request Once set, the essential and desirable criteria for feedback following an interview, this should be given to short-listing should be applied consistently to all them. This is likely to avoid unnecessary and candidates. If the selection committee considers that a groundless litigation. In the UK, where discrimination particular candidate is likely to be suitable despite the on some of these grounds in the recruitment process fact that they do not comply with one or more of the has been prohibited for years, many claims are brought criteria, it must review the short list to allow the same because a candidate does not know why they were not leeway to all the candidates on it. This is to ensure that selected for a post and so believe that the reason must the exercise is non-discriminatory and is seen to be so. be, for example, their race or disability. In many cases, Reviewing the criteria should be approached with when documents have been exchanged prior to a caution. The committee must have non-discriminatory hearing, it becomes clear to the disgruntled candidate reasons for the review to avoid the suspicion that a job that they were not short-listed for a non-discriminatory has been tailored to fit a particular candidate and that reason – for example, because they did not meet the this has been done for discriminatory reasons. requirements for the job or because they did not satisfy Arrangements for the interview. All candidates the requirements as fully as one or more of the other must be treated in the same manner in arrangements candidates. Had such information been disclosed to the for interviews, in that each must be given the same candidate when requested, unnecessary and expensive amount of time and the same basic questions must be litigation with the potential to damage the reputation of asked of each. The selection committee should draft a the employer would probably not have arisen. A culture list of guideline questions to be asked, decide which of secrecy is likely to foster a belief that there is also a members of the committee will ask particular questions, culture of discrimination. and what answers are expected from candidates. Your employer clients should be advised to review A detailed interview scoring system should be their recruitment practices along the lines described prepared in advance. This involves setting a list of above. They may feel that the steps set out are excessive questions, the bullet points or headings which should and unnecessary, but they should be strongly advised to be covered in an answer and the scoring which will be the contrary. In the recent case of Dr Gleeson, under applied to each answer (for example, the marks which the 1977 act, the Labour Court’s decision was strongly will be given to covering each one of the possible influenced by the hospitals’ failure to set criteria before headings in the reply and any weighting of such the interview and the non-availability of notes written remarks). All interviewers should complete their score during the interview. The court recommended that this sheets during, or immediately after, the interview. The be changed for future interviews. headings can be ticked off during the interview. If This advice should be heeded by all potential detailed assessment sheets are completed during the employers to avoid what may be protracted, expensive interview, it is likely to make for an awkward and and public court cases. Meanwhile, solicitors should be cumbersome process. However, the score sheets should prepared for litigation. G be completed promptly afterwards, when all members of the selection committee are together. Michelle Ní Longáin is a solicitor in the employment law The assessment sheets should not be taken away department of the Dublin firm BCM Hanby Wallace. from the premises where the interviewing is being Queries on employment discrimination and related issues conducted to avoid any suggestion of discussion of should be directed to the Law Society’s Employment Law candidates and their merits or unrelated factors with Committee.

29 Law Society Gazette July 2000 Gadgets Tech trends Compiled by Maria Behan

Print-a-go-go Travelling rough n-the-go types may output – 600 x 600 dpi for b/w Oappreciate Hewlett- pages and 600 x 300 dpi for Packard’s DeskJet 350C mobile colour creations. It also sports printer, which the company a document feeder that can claims is robust enough for handle up to 30 pages at a daily use. It spits out both time. Available for about £310 at black-and-white and colour computer outlets or by calling jobs pretty quickly and Hewlett-Packard on 1850 produces high-resolution 474727. Sticking it to Bill Gates f you’ve always preferred company claims that Netscape 6 IDavid to Goliath and you is the first Net software to long for an Internet browser seamlessly integrate browsing, that’s outside the Microsoft e-mail and instant messaging – empire, you might want to and it won’t even cost you a download Netscape’s latest cent. Bill, that’s gotta hurt! otebook PCs are more laptop when it’s dropped (the version of its pioneering Available as a free download from Nnumerous these days, as number one cause of untimely Internet browser. The http://www.netscape.com. are cases of damaged units and notebook demise). Indeed, lost data due to dropping, Panasonic claims these mobile banging, bumping, and PCs have an overall failure pouring pints of lager over the rate of less than 2% – four keyboard during plane times less than the industry turbulence. Panasonic’s standard. All five models in Toughbook line is designed to the Toughbook range sport a withstand these and other ‘field-design’ LCD screen major causes of harm to that allows for a readable notebooks. The company says display even when outdoors, the new notebooks’ and some models feature magnesium-alloy casing and touch screens. Available at special gel-protected hard computer outlets, priced between drives absorb 66% of the £2,210 and £4,400, depending impact shock sustained by a on the model. On the case f case management crises are SOLICITORS’ Igetting you down, you might want to check out a software HELPLINE program called OPSIS Solicitor. A practice management system The Solicitors’ Helpline is available to assist that incorporates diary and file every member of the profession with any management as well as time- record, keeping track of problem, whether personal or professional. and cost-recording, it’s designed correspondence, to-do-lists, The service is completely confidential and to emulate the way most activities and appointments. totally independent of the Law Society. solicitors work. The program Ten-user licences are approximately If you require advice for any reason, lets you create e-mails and faxes £12,000, including installation, phone:01 284 8484 from within the system and customisation and training. 01 284 8484 groups material around a client Contact Opsis on tel: 01 294 2903.

30 Law Society Gazette July 2000 Gadgets May the force be with you

ogitech’s WingMan mouse gamers will reel from Llets you ‘feel’ your way explosions and bump across around cyberspace. Using a rocky terrain as they battle bad technology the company calls guys or race for the finish line. ‘force feedback’, this new-age Web surfers – especially new- navigational device offers a comers – will find that the tactile interpretation of the WingMan makes getting graphical layer included in around in cyberspace more games, software applications instinctive and, hence, faster. and websites. What this Available at computer supply gibberish actually means is that shops, priced around £20. Sites to see

Superstarprize.com (http://www.superstarprize.com). This website lets you gamble with your child’s future, betting $15 that your kid – or that of a friend or relative – will be a famous movie star, politician, footballer or other celebrity. The wager Irish Law (www.irish-law.org). Hosted by the UCC law certificate you’ll receive in the post might make for a unique department, this site offers information on various aspects of the christening or birthday gift, and although it’s the brainchild of a law, courts and government, including the peace process and a Dublin comedy-club entrepreneur, this site isn’t joking around: section dubbed Finding law on the web. the pay-out of all prizes is insured by Royal & SunAlliance.

American Bar Association (http://www.abanet.org). Those interested in legal perspectives from across the pond can visit this site for ethical discussions, expert opinion, reports and research.

First Call Direct (http://www.firstcalldirect.ie). This site offers car, travel and home insurance quotations on-line. Type in your specifics, and you should receive a quote in a minute or two. Those already insured with the company can report claims electronically, and you can also apply for a credit card or a personal loan.

31 Law Society Gazette July 2000

Briefing Practice notes

TRANSFER OF COMMON AREAS TO MANAGEMENT COMPANY It is the normal practice in apart- solicitor acting for the developer to foot of the undertaking. If, howev- developer has not transferred the ment developments or other com- give an undertaking to the pur- er, the solicitor has knowledge of common areas to the company. plex developments to set up a chaser’s solicitor on the comple- the likelihood of the company There have been cases where the management company to look tion of the sale of each unit that a being struck off, then, apart from owners have grouped together to after the maintenance of the struc- copy of the assurance of the com- drawing the attention of the direc- provide the day-to-day services ture of the building and the provi- mon areas to the management tors to the matter, the solicitor which they require on an ad hoc sion of services to the owners and company will be furnished after the owes a duty to the solicitors for basis. However understandable occupiers of the individual units in assurance has been stamped and the purchasers to whom the under- this decision may have been, it the development. Control of this registered. The Conveyancing takings were given to advise them leaves the management of the company normally remains vested Committee has received com- that circumstances have arisen common areas, which of course in the developers until the comple- plaints that there have been signif- which cast doubt on the solicitor’s includes the maintenance of the tion of the development and the icant delays in the transfer of com- ability to comply with the under- structure and the insurance of the sale of the last unit, at which mon areas in some developments takings. building, in a most unsatisfactory stage the common areas which and that in some cases the com- In the case of a liquidation, the state. In such a situation, the remain the developer’s ownership pany in which the common areas is solicitor will presumably have solicitor for the developer is enti- should be transferred to the man- vested has been put into liquida- notice of the proposed liquidation tled to, and should, notify the pur- agement company, if not already tion or been permitted to be struck and in this case will not only have chasers’ solicitors that their vested in it, and control of this off the register of companies. a duty to advise the solicitors for clients’ refusal to take control of company should be passed to the The question of the liability of the purchasers of the proposed liq- the management company makes owners of the units in the develop- the solicitor who has given the uidation but also to advise the liq- it impossible for the developer’s ment. Normally a contract is undertaking in respect of the uidator of the existence of the solicitor to comply with the under- entered into at an early stage transfer has been raised with the undertakings which will constitute taking to transfer the common between the developers and the committee. The first point which liabilities of the company. areas. management company for the has to be made is that the under- There have been a number of As indicated above, the under- assurance to the latter of the com- taking has been given on behalf of cases where the owners, dissatis- taking given by the developer’s mon areas, such assurance to be the client and if the solicitor had fied with the provision of services solicitor should be confined to effected following completion of no knowledge of the likelihood of by the developer, have declined to supplying a copy of the assurance the sale of the individual units. the company being struck off then take control of the management to the management company. It is the normal practice for the the solicitor can hardly be liable on company and, as a result, the Conveyancing Committee

VAT FORM 4A PROCEDURES

Practitioners are advised that as particular importance to the whichever is the earlier. 1 April 2000. The VAT form 4B a result of discussions at the requirement that the form 4B is The landlord must then raise must have issued on or before Indirect Taxes Sub-Committee of in place on the date that the the VAT invoice with the appropri- 1 April 2000 and a VAT invoice TALC (Tax Administrators’ Liaison supply takes place. ate endorsement (that is, ‘in must be raised before 15 May Committee) regarding the VAT Accordingly, practitioners are accordance with section 4A of 2000. form 4A procedures, the Revenue advised that at the commence- the Value Added Tax Act, 1972, has advised that for VAT purposes ment of negotiations for the the lessee is liable for the In view of the Revenue’s stated the supply of property takes place creation of a lease that the value-added tax of £[insert intention to examine the 4A pro- on the earlier of: VAT form 4A is submitted to amount]’) by the 15th day of the cedures in greater detail, practi- a) The date the tenant takes up the tenant’s solicitors with the month following that in which tioners will please note and occupation of the property, or request that it can be completed supply of the property took ensure that the Revenue has b) The date he signs the lease. immediately and returned to place. By way of example, there- issued the VAT form 4B before the landlord’s solicitors. The fore: the supply takes place. The VAT invoice must be issued landlord’s solicitors should then • tenant is allowed enter occu- Practitioners are referred to by the 15th day of the month fol- submit it to the landlord’s pation of property under the Revenue publication Tax brief- lowing that in which the supply of inspector of taxes and should an agreement for lease on 1 ing (Issue no 40, June 2000) for the property takes place. ensure that the VAT form 4B has April 2000. The lease is further information on section 4A Revenue has advised that issued prior to the tenant enter- signed and delivered on 1 procedures. inspectors engaged in checking ing into occupation of the prop- June 2000 Probate, Administration and property transactions will pay erty or signing the lease, • the supply took place on Taxation Committee

33 Law Society Gazette July 2000 Briefing

REGISTRAR’S COMMITTEE HOMEBOND WARNING The Law Society’s Complaints the society is a matter of serious HomeBond has revised its docu- increase in the price of new Section and the Registrar’s concern to the members of the mentation to incorporate a homes, any payments made to Committee have an obligation to committee and, once again, the HomeBond agreement separate the member before the issue of investigate all complaints that lay members of the committee from the HB10 and the HB11 the form HB11 (the final notice) are made against solicitors. With have highlighted communica- which must be completed by the are covered only up to the sum a view to dealing with complaints tions (both with clients and the purchaser and the HomeBond of £20,000 or 15% of the pur- as expeditiously as possible, the society) as a problem area. The member. chase price, whichever is the committee wishes to remind committee is resolved to Many of the concerns in rela- lesser. Where the final notice solicitors of the absolute neces- address these concerns robustly tion to the operation of the has issued, then payments are sity to respond to correspon- and may have no option but to HomeBond scheme have not covered up to the sum of dence received from the refer to the Disciplinary Tribunal been addressed in the new doc- £50,000 or 50% of the pur- Complaints Section quickly and those solicitors who do not umentation, notwithstanding chase price, whichever is the comprehensively, regardless of respond promptly (or at all) to strong representations by the lesser. Again, care should be the nature of the allegations that the society’s correspondence. Law Society. The following taken to ensure that any sums are made. Failure to respond to James McCourt, chairman issues remain the principal con- paid in excess of these cerns. amounts are held by the ven- dor’s solicitor as stakeholder Deposits pending completion. CONTRACT CLOSING DATES Deposits, whether booking or It has come to the attention of in contracts for sale. contract, are not secured under Limit of liability the committee that a lot of It is the view of the committee the HomeBond scheme if paid Clause 4.2 of the HomeBond unnecessary pressure and that in usual circumstances a rea- before the date of registration agreement provides for an overall aggravation is caused to col- sonable completion or closing of the dwelling in respect of limit of liability in respect of any leagues by completion dates date would be five weeks from which the payment has been one member of £400,000 subject which are too short and the date of the contract for sale. made. Registration of the to a discretion to HomeBond to unreasonable being included Conveyancing Committee HomeBond member is not suffi- increase that amount from time cient and subsequent registra- to time. Despite representations tion is not retrospective. made to it, HomeBond has declined to review this figure, HB10 which in the current market is Ensure that you get the original totally inadequate. HB10 and not a copy (the origi- nal may have been sent to HB11 another prospective purchaser). It is essential that on comple- tion of the purchase, the form Address of property HB11 is furnished to the pur- If the address on the HB10 dif- chaser’s solicitor. fers from that in the contract documentation, obtain a certifi- Limitations of scheme cate from the vendor’s solicitor While the cover provided by confirming the property is one HomeBond for major defects and the same. over a ten-year period is very valuable, it has many limitations Booking deposits (not least of which being the The stage payment cover provid- overall limit of liability in respect ed by the HomeBond scheme is of any dwelling of £30,000). available only in respect of pay- It is essential, therefore, that ments made to the HomeBond purchasers get a structural member. If the site vendor and defects indemnity under seal (or developer are different entities, at least ensure that the building then care should be taken to agreement is executed under ensure that any deposits paid seal, so that they get the bene- are covered by the HomeBond fit of the structural defects scheme or, if not covered, are cover contained therein), and held by the vendor’s solicitor as that the purchaser’s common- stakeholder pending completion. law rights are not prejudiced by the production of the structural Limitation on deposit cover defects indemnity. Notwithstanding the huge Conveyancing Committee

34 Law Society Gazette July 2000 Briefing

STAMP DUTY ON ACQUISITION OF NEW COMMERCIAL/INDUSTRIAL PREMISES Sections 43 and 52(2) of the the works performed and the £60,000. There is no requirement a new dwelling house/apartment. Stamp Duties Consolidation Act, cost of such works at the date for a certificate as to whether In the case of a purchaser buying a 1999 provide that where the con- of sale there is a connected building new dwelling house/apartment, a sideration in a deed is chargeable 2. a) where the building on the site agreement or development works more embracing test is applied in to ad valorem duty and is in further is substantially completed at carried out. Accordingly, in the determining whether the combined consideration of a covenant by the the date of signing of con- event of a building agreement for consideration for the site and the purchaser to substantially improve tracts, and/or the purchase of an industrial site construction works are liable to the property, such further consid- b) the contract for the sale of for, say, £100,000, combined stamp duty. In such cases, the eration shall not be chargeable to the site and the building with a building agreement, the determining factor is whether the duty. However, this does not apply agreement are interlocked, usual transaction certificate that sale of the site and the building of where the works are substantially stamp duty will be assessed on the consideration does not the house/apartment are part of completed on signing of contracts the entire consideration passing exceed £60,000 will not apply an arrangement or are connected or where the contract for the site for the site and the building. and it will not therefore be evident in some way. In deciding this, and the building agreement are from the face of the deed whether regard will be had to: interlocked. The guidance notes to As a general guideline, properties there is a connected building •whether building has com- the Stamp Duties Consolidation will be regarded by the Revenue agreement. Nevertheless, the menced prior to the execution of Act, 1999 set out the treatment Commissioners as ‘substantially onus lies with the purchaser/ les- any instrument of sale, and applicable in such circumstances: completed’ where the cost of the see to see to it that the deed is • whether any relationship or asso- 1. where the building on the site is building work completed exceeds properly stamped where the build- ciation exists between the build- not substantially completed at 75% of the total cost of the build- ing agreement is interlocked or er and the vendor of the land. the date of signing of contracts ing work agreed. the works were substantially com- and where the contract for the In the case of a conveyance/ pleted at signing of contracts. There are also reliefs for certain sale of the site and the building lease combined with a building It should be remembered that, new houses/apartments contained agreement are not interlocked, agreement for a commercial/ notwithstanding sections 43 and in sections 91 and 92 of the Stamp stamp duty will be assessed on industrial premises, the only cer- 52(2), separate statutory provi- Duties Consolidation Act, 1999. the market value of the site tification required is (a) that sec- sions, namely sections 29 and 53 The specific certificates required to together with the cost of any tion 29/53 of the Stamp Duties of the Stamp Duties Consolidation be inserted in deeds relating to works done at the date of sign- Consolidation Act, 1999 does not Act, 1999 (previously section 112, new houses/apartments are set ing of the contracts. A certifi- apply and (b) a transaction certifi- Finance Act, 1990), apply in the out in Revenue leaflet SD7. cate from the site architect cate where the chargeable con- case of a conveyance/lease com- Probate, Administration and should be produced, detailing sideration does not exceed bined with a building agreement for Taxation Committee www.lawsociety.ie he Society’s website contains a wealth of information for the Tpractising solicitor including: • Employment opportunities: updated weekly • Continuing Legal Education programme • An overview and updates on the work of the Society’s committees • Contact names of Law Society personnel • Comprehensive index of member services • Gazette on-line: updated monthly • Links to other legal sites on the net • Legislation updates: updated quarterly • Committee reports and publications • Forthcoming conferences and seminars: regularly updated • What’s new: updated weekly THE MEMBERS’ AREA of the website contains practical information for solicitors such as practice notes, policy documents, precedents for practice, professional information, frequently asked questions and an interactive bulletin board Have you accessed the Law Society website yet?

35 Law Society Gazette July 2000 Connecting people to people

SOLV Legal Recruitment specialises in placing Legal Professionals. We currently have numerous clients offering exciting opportunities in the following areas:

Solicitors • Conveyancing/ Probate - Medium/Small

• Corporate/ Commercial - Top 10 Firms Firms

• Pensions and Employee Benefits - Top 10 Barristers In House Firms • Corporate Compliance • Technology Law - Top 10 Firms • Employment Law •PI/Litigation - Medium/Small Firms • Competition/ EU Legislation Compliance

Contact: Caroline Staunton B.A. (Hons), Barrister-at-Law, SOLV Legal Recruitment, River Court, 17-19 Sir John Rogerson’s Quay, Dublin 2. Briefing

LEGISLATION UPDATE: 16 MAY–12 JUNE 2000 ACTS PASSED SELECTED STATUTORY timeshare property is situated. schedule to this order is a code Human Rights Commission Act, INSTRUMENTS Introduces penalties for non-com- of practice for the purposes of 2000 pliance with the provisions of the the Industrial Relations Act, Number: 9/2000 District Court (Offences 1997 regulations and provides for 1990. The code of practice pro- Contents note: Establishes a Against the State related matters vides a recognised framework for human rights commission to pro- (Amendment) Act, 1998) Commencement date: the processing of disputes aris- tect and promote human rights, Rules 2000 25/5/2000 ing in situations where negotiat- based on United Nations guide- Number: SI 166/2000 Leg-implemented: Dir 94/47 ing arrangements are not in place lines, in accordance with the Contents note: Amend order and where collective bargaining terms of the agreement reached 17 of the District Court Rules Industrial Relations Act, 1990 fails to take place in the multi-party talks in Belfast 1997 (SI 93/1997) by the (Code of Practice on Grievance Commencement date: on 10/4/1998 (Good Friday addition of an application and and Disciplinary Procedures) 26/5/2000 agreement) warrant to further detain a (Declaration) Order 2000 Date enacted: 31/5/2000 person arrested under section Number: SI 146/2000 National Beef Assurance Commencement date: 31/5/ 30 of the Offences Against the Contents note: Declares that the Scheme Act, 2000 2000; establishment day order to State Act, 1939, as amended code of practice set out in the (Commencement) Order 2000 be made for the purposes of the by section 10 of the Offences schedule to this order is a code of Number: SI 130/2000 act Against the State (Amend- practice for the purposes of the Contents note: Appoints ment) Act, 1998 Industrial Relations Act, 1990. 29/5/2000 as the commence- Multilateral Investment Commencement date: The code of practice provides ment date for part V of the Guarantee Agency (Amendment) 12/6/2000 guidance to employers, employ- National Beef Assurance Scheme Act, 2000 ees and their representatives on Act, 2000. Part V provides for an Number: 10/2000 the general principles which apply increase of penalties under the Contents note: Enables the gov- European Communities in the operation of grievance and Diseases of Animals Act, 1966, ernment to subscribe 281 shares (Contracts for Time Sharing of disciplinary procedures. The code the Livestock Marts Act, 1967 and in the 1998 Capital Increase of Immovable Property – Protection of practice set out in the schedule the Slaughter of Animals Act, the Multilateral Investment of Purchasers) (Amendment) to the Industrial Relations Act, 1935. Part V also amends the Guarantee Agency (MIGA). Regulations 2000 1990 (Code of Practice on provisions relating to the refusal Amends the Multilateral Number: SI 144/2000 Disciplinary Procedures (Declara- or revocation of licences under the Investment Guarantee Agency Act, Contents note: Amend the tion) Order 1996 (SI 117/1996) is Livestock Marts Act, 1967 1988 by providing a specific provi- European Communities (Contracts revoked sion to allow the minister for for Time Sharing of Immovable Commencement date: National Disability Authority Act, finance to make the above sub- Property – Protection of Purch- 26/5/2000 1999 (Establishment Day) Order scription. MIGA was established in asers) Regulations 1997 (SI 2000 1988 as a member of the World 204/1997). Provide further in Industrial Relations Act, 1990 Number: SI 162/2000 Bank Group. The main object of relation to the purchaser’s option (Code of Practice on Voluntary Contents note: Appoints 12/6/ the agency is to provide insurance to have the timeshare contract Dispute Resolution) 2000 as the date on which the cover for direct foreign investment drawn up in his/her language and (Declaration) Order 2000 National Disability Authority shall in developing countries in relation to provision by the ven- Number: SI 145/2000 be established Date enacted: 7/6/2000 dor of a certified translation of the Contents note: Declares that the Commencement date: 7/6/2000 contract in the language where the code of practice set out in the Prepared by Law Society Library

Correction to Finance Act, 2000 which Leave it to the experts! appeared in Legislation update last month Finance Act, 2000 provided (per s166(9) of the Number: 3/2000 act); 23/3/2000 for part III SHELF COMPANY NOW Contents note: Charges and (ss107-124) except for ss107, imposes certain duties of cus- 121 and 123(a) and 123(b) £200 toms and inland revenues which shall be deemed to have (including excise); amends the come into force and take effect THE LAW SOCIETY’S COMPANY SERVICE, BLACKHALL PLACE, DUBLIN 7 law relating to customs and as and from 1/7/1999 and inland revenue (including ss111 and 113 which shall be FAST • FRIENDLY • EFFICIENT • COMPETITIVE PRICES • MEMBERS OF EXPRESS SERVICE excise); and makes further provi- deemed to have come into force sion in connection with finance and take effect as and from PHONE CARMEL OR RITA ON 01 672 4914/6, EXT 450 (FAX: 672 4915) Date enacted: 23/3/2000 1/3/2000 (per s166(10)(a), (b) • Private limited company – ten days, £180 Commencement date: 6/4/ and (c) of the act). Various com- • Guarantee company – ten days, £128.40 2000 for part I (ss1-89) except mencement dates for other sec- • Shelf company – ten minutes, £200 • Single member company – ten days, £180 where otherwise expressly tions – see act • New companies, using complete nominees – ten days, £200

37 Law Society Gazette July 2000 Briefing

Personal injury judgments

Occupier’s liability – Control of Dogs Act, 1995 – licensee – cider-drinking people with a dog on church grounds – horrific attack by dog on man – whether church authorities liable CASE Kevin Leahy v Liam Leader and Cork Diocesan Trustees, High Court on circuit in Cork, before Mr Justice Brian McCracken, judg- ment of 13 October 1999. THE FACTS n 18 July 1994, shortly after at the front of the church and the Summerhill. Some of them were the rebuilding surgery there was O9pm, Kevin Leahy made a top of the steps, were kept open drinking cider, but they did not still significant cosmetic damage. purchase at the Esso filling at all times. It would appear that appear in any way threatening in Mr Leahy issued proceedings station opposite St Patrick’s the church authorities had made themselves. One of the group against Father Liam Leader, the Church in the Lower Glanmire a deliberate decision that the had a dog, described as a Lassie- parish priest, and the owners of Road, Cork. He was returning church gates would remain open type collie. Without provocation the church, the Cork Diocesan to his flat in Summerhill and to the public at all times. from Mr Leahy, the dog Trustees. His claim was based on took a short cut through the On the summer’s evening in attacked him and bit off a large two grounds. First, there was a grounds of the local church and question, there was a group of part of his nose. It was a horrific claim based on occupier’s liabili- up to the steps at the rear of the people sitting at the side of the injury. As a result, Mr Leahy’s ty and, second, a claim under the church. The church gates, both church near the steps up to nose had to be rebuilt and after Control of Dogs Acts, 1995. THE JUDGMENT r Justice McCracken or to lay any trap for them. That tained from the Garda Síochána ger. Any dog may attack some- Mstated that this was a most was the extent of their liability. that there were no drugs body and bite them, and indeed unfortunate case in which Kevin The judge noted the submis- involved. These people were some of the smaller dogs are Leahy suffered a horrific injury. sion that in this case there was a perhaps out of work, perhaps known to be the most vicious. There could be no blame concealed danger. The judge out of homes, and they were not In relation to the argument whatever attached to him. The observed that some might con- people who constituted any on the Control of Dogs Act, judge also noted that there was sider that people drinking cider danger to anybody. In any 1995, section 21 of that act no dispute as to what had might constitute a danger and event, Mr Leahy was not provided that the owner of a happened in the case. The judge there had been evidence from injured by any of these people dog should be liable for dam- referred to the two grounds of the manager of a local service directly. age caused as a result of an Mr Leahy’s case, occupier’s station that he was worried Counsel for Mr Leahy had attack on any person by the liability and liability under the about people congregating at argued that the dog was a hid- dog or by any injury done to Control of Dogs Act, 1995. the site of the church near the den or concealed danger. The any livestock. It is not neces- In relation to occupier’s lia- steps because he was afraid they judge considered in the first sary to show that there was any bility, the judge noted that the might be spying on his shop, instance that the dog was not knowledge of what is called a unfortunate incident took place perhaps for the wrong purposes. hidden or concealed. The dog mischievous propensity on the before the coming into force of The judge noted that although was perfectly obvious to any- part of the dog. The judge the Occupier’s Liability Act, 1995 people did from time to time body. The dog was not a rot- noted that in the legislation and, therefore, the case was assemble in the church grounds tweiler or a dog of that nature, there was absolute liability for governed by the common law as and drink there, he considered because such a dog would obvi- a dog and that was a new con- to liability. Mr Leahy was that this had probably happened ously be a dangerous dog. cept, but who was the owner of undoubtedly a licensee; he was before as well as after this inci- Counsel argued that a collie- the dog? The act provided that permitted by Fr Leader to use dent, and there had never been type dog was a danger which an owner in relation to a dog the short cut, as was anyone else any violence connected with would not be perceived, and included the occupier of any in the vicinity. The obligations these people, either before or therefore constituted a hidden premises where the dog was of Fr Leader and the diocesan since. The judge did not consid- danger. The judge considered kept or permitted to live or trustees to a licensee were to er that these people in them- that argument did not stand up remain at any particular time, warn them of any concealed selves were actually a danger to to scrutiny: in one sense, the unless its occupier proved to danger and not to mislead them anybody. The judge had ascer- presence of any dog was a dan- the contrary. The argument

38 Law Society Gazette July 2000 Briefing put forward by Mr Leahy was the dog was there, so could not somebody is injured, such a per- appreciated what counsel for that this dog was permitted to be said to have permitted it to son must be compensated and the church authorities had said. remain on the church premises. remain there. On the night in there had to be a blame-worthy Counsel for the church author- Fr Leader was obviously the question, the judge considered party. The judge was satisfied ities considered that he might occupier of the premises. Fr Leader was quite unaware that no blame could attach to Fr go a bit further. The judge said In the context of the Control of that anybody was there. In any Leader or to the church author- that he was quite sure that Fr Dogs Act, 1995, and the issue of event, the definition of owner ities. Accordingly, he was com- Leader was not going to seek the definition of an owner of a dog in the act contains the pelled to dismiss Mr Leahy’s costs personally. Counsel including the occupier of any proviso that the occupier may action. replied: ‘Of course not’. premises where the dog is kept prove to the contrary. The Counsel for the parish priest Counsel for Mr Leahy asked or permitted to live or remain, judge was quite satisfied from and the trustees then addressed the judge to exercise his discre- the judge noted the word ‘per- Fr Leader’s own evidence that the court, stating that he would tion. Counsel for the church mitted’ must imply consent of he didn’t know the dog was like to express regret that this authorities then stated that he some form, and that consent, in there and the judge was satisfied accident happened on church had taken instructions and the turn, implied knowledge. that the proviso in the act grounds. In those circum- instructions were not to look According to the judge, the applied. Fr Leader did not per- stances, counsel sought costs in for any costs. The judge made parish priest, Fr Leader, certain- mit the dog to remain there the event of an appeal, but the appropriate order. ly did not know that this dog was and, accordingly, the judge did would not seek costs if the mat- there. While it was an open not consider that Mr Leahy had ter was not taken any further. Counsel for Mr Leahy: Mr question as to how far Fr Leader any cause of action. Mr Justice McCracken stated McCullough SC, Mr O’Mahony was aware that people congre- The judge considered the that, in the circumstances, he SC and Mr Hughes BL, instruct- gated there, even if he did know injury of Mr Leahy was terrible didn’t like making such an order ed by Vincent Toher & Co, that they congregated at that in nature and that there had on the spur of the moment, and Solicitors. location, he did not know they been ‘a most unfortunate acci- the legal team for Mr Leahy Counsel for the church authorities: had congregated there with their dent’, but noted that our law would have to take instructions. Mr Gleeson SC and Mr dog. The judge was satisfied that does not allow for the general Counsel for Mr Leahy stated McCarthy BL, instructed by Barry the parish priest did not know principle that just because that he had no instructions. He Galvin, Solicitor.

Negligence – road traffic accident – physical injuries – short stay in hospital – injuries cleared up, but certain sequelae – assessment CASE Pamela O’Hara v Abraham Neacey, High Court on circuit in Sligo (sitting in Carrick-on-Shannon), before Mr Justice Paul Carney, judgment of 3 November 1999. THE FACTS amela O’Hara, the driver of breathing and was taken to pain killers. There was blood in after certain movements. She Pa motor car, was involved in Castlebar Hospital where she her urine and she had concern in had previously engaged in aero- a head-on collision with another was retained for a week. relation to her heart and kid- bics, but those exercises would vehicle driven by Abraham Ms O’Hara fractured her neys. She underwent extensive appear to be severely curtailed. Neacey. She was trapped in her chest bone and there was pres- physiotherapy which helped her In evidence, she agreed in cross- car. She thought she saw smoke, sure on the heart and kidneys, with her problems, but tasks like examination that after three but it could have been steam. and cuts on her face; she suf- hoovering were difficult for her. months she had made extremely She believed at the time that the fered from headaches and a Evidence was given that Ms good progress but she still had car was going to explode. She whiplash injury gave her pain O’Hara’s neck was sore and tired some on-going difficulties. The succeeded in climbing out the and stiffness in the neck. She after long periods at a computer matter came before Mr Justice window. She had difficulty in was x-rayed and treated with and she had chest difficulties Carney for assessment.

LAW SOCIETY ROOMS at the Four Courts FEATURES INCLUDE: Revised layout with two additional rooms Improved ventilation and lighting Meetat Telephone extension in every room the FOR BOOKINGS CONTACT Conference facility telephones Four Mary Bissett or Paddy Caulfield Room service catering facility at the Four Courts 668 1806 Friary Café CourtCourts 39 Law Society Gazette July 2000 It’s harvest time for legal firms…

Ro-Law, the hugely successful man- agement accounting package for legal firms, has been renamed Harvest Law to reflect our focus on building profit for your business.

…reap the fruits of your labour with Harvest Law version 4.0 now fully Euro-compatible.

Free conversions from other accounting systems where possible.

Links with ‘The Practice’ & ‘Opsis’ Case Management Systems.

HARVEST SOFTWARE Ltd 15 PARNELL ST WATERFORD TEL 051-872111 FAX 051-872880 E-MAIL [email protected] THE GOLDEN PATH TO PROFIT COURTESY OF THE LEADING MANAGEMENT ACCOUNTS PACKAGE FOR LEGAL FIRMS

LAW AGENCY SERVICES ENGLAND & W ALES

SOLICITORS Established 1825

•Fearon & C o specialise in acting for Irish residents in the fields of probate, property and litigation • Each solicitor is available by direct line, fax or e-mail. Conferences can be easily arranged •Fearon & C o is committed to the use of information technology to help improve both the quality and speed of service for the benefits of all clients both at home and abroad • The firm’s offices are within half an hour of London W aterloo station and within a short travel from both Gatwick and Heathrow airports, with easy access from the London orbital M25 motorway • No win, no fee arrangements and Legal Aid are available in appropriate cases PHONE NOW FOR A BROCHURE W estminster House 12 The Broadway, Woking, Surrey GU21 5AU England Fax: +44 (0)1483 725807 Email: [email protected] www.fearonlaw.demon.co.uk LITIGATION PROPERTY PROBATE Sarah Butler John Phillips Francesca Nash Tel: +44 (0)1483 776539 Tel: +44 (0)1483 747250 Tel: +44 (0)1483 765634 Briefing THE JUDGMENT r Justice Carney stated her death at the time of dence that improvement ered would probably affect her Mthat he had given very the accident. would reach a plateau and that for the rest of her life. Ms careful consideration to Ms The judge noted that she Ms O’Hara had probably O’Hara deserved great credit, O’Hara’s injuries. was back at work in a remark- reached that position now. according to the judge, for her In one view, this could be ably quick time of three weeks Her recovery had been determination to get back to regarded as a minor case, in because she felt a compulsion remarkably rapid, but she still work as quickly as she did, but that Ms O’Hara had spent a to get back to work. The judge had some on-going disadvan- that should not affect the issue very short time in hospital, noted, however, that in relation tages which the judge consid- of damages. was back at work in a few to travelling, Ms O’Hara could weeks and her injuries not turn her neck fully when it Mr Justice Carney Counsel for Ms O’Hara: Harry had substantially cleared up was necessary to get a side awarded general dam- Whelehan SC and John Kiely BL, in a period of three months. view. Aerobic exercises were ages of £35,000 and instructed by John J Gordon, However, the judge did not not possible as previously and special damages of Solicitor. consider the matter was quite he noted that Ms O’Hara had £2,000, giving a Counsel for the defence: Mr that simple. He considered difficulty in certain areas of decree for £37,000 O’Hagan SC and John Shortt, that the impact was severe housework. with costs. instructed by Bourke Carrig and

and that she apprehended The judge referred to evi- THE AWARD Loftus, Solicitors.

Employer and employee – former member of defence forces – complaints of difficulty in hearing – whether claim statute barred – whether state liable CASE Seamus O’Brien v the Minister for Defence, Ireland and the Attorney General, High Court on circuit in Kilkenny, before Mr Justice Philip O’Sullivan, judgment of 23 November 1999. THE FACTS eamus O’Brien had left the London to doctors, no hearing speech frequency, as well as the noise of gunfire. Sarmy over three decades test was done. However, a high tones. It was submitted Seamus O’Brien sued ago. He complained of medical report of 15 June 1999 that the hearing loss was worse Ireland’s minister for defence headaches and pressure in his done by a Dr O’Meara stated on the left side. Medical and the attorney general. head, which appeared to have that the audiometry showed a opinion was that the inner-ear Initial issues arose as to arisen in the 1990s. The first bilateral deafness affecting deafness was a result of whether his claim was statute time he presented himself in some of the low tones and exposure to the high explosive barred. THE JUDGMENT r Justice O’Sullivan hearing aid. He now has a with counsel for the state great difficulty in hearing. The Mconsidered that the first hearing aid and has survived authorities. However, the judge considered that Mr issue he had to decide was well since then. The judge judge accepted that most of O’Brien was not overplaying his whether Mr O’Brien’s claim noted there was no question of these difficulties arose more case, and that was to his credit. was statute barred. On tinnitus in the case. He out of a failure of understand- reviewing the evidence, he observed in the witness box ing than of hearing. Yet the Counsel for Mr O’Brien: Aidan accepted that Mr O’Brien that Mr O’Brien did appear to judge referred to this issue as Walsh SC, Patrick McCarthy SC could not reasonably have have difficulty in various supporting his impression that and Stephen Lanigan-O’Keefe BL, known of his cause of action exchanges in cross-examination Mr O’Brien did not have a instructed by Anthony Carroll, prior to March 1998. Solicitor. Accordingly, he considered the Counsel for state authorities: proceedings were issued in Sean Ryan SC and Tom Teehan time. The judge referred to the Green book regime. Taking BL, in-structed by the chief state The judge referred to the everything into consideration, he awarded £15,000 to solicitor. G complaints made by Mr Seamus O’Brien. O’Brien of headaches and Counsel for Mr O’Brien sought Circuit Court costs and These judgments were summarised pressure. Mr O’Brien was sur- a certificate for senior counsel. After some argument, by Dr Eamonn Hall from Reports prised when he was informed the judge said that he was disposed to making such an of personal injury judgments by a medical specialist in order. from Doyle Court Reporters,

March 1998 that he needed a THE AWARD 2 Arran Quay, Dublin 7.

41 Law Society Gazette July 2000 Briefing Update

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

CONSTITUTIONAL ing that the true test was in fact a DPP v Ramachchandran, Court Criminal Law (Rape) (Amend- completely subjective one. In this of Criminal Appeal, ment) Act, 1990, sections 2, 7 Immigration and nationality regard, it was argued that there 27/01/2000 [FL2762] A jury at Sligo Circuit Court Applicant proposed to undertake had been a change in the law as convicted the applicant on four course of study – not in possession of had been previously stated in the Visual identification counts of sexual assault on a 15- valid employment permit – whether case of Director of Public Fraud charges – documentary evi- year-old girl. The applicant was applicant possessed valid airline Prosecutions v Eoin ([1978] IR 27). dence – video evidence – formal iden- sentenced to two years’ impris- ticket – whether powers possessed by The court held that the test for tification parade – whether charge of onment on each count, the sen- immigration officer ultra vires – provocation had in recent years trial judge in relation to visual iden- tences to run concurrently. In his whether decision to deport applicant been refined somewhat and as a tification evidence correct – whether application for leave to appeal unreasonable – Aliens result the conviction would be evidence of gardaí properly admitted against conviction, it was con- (Amendment) Order 1975 – quashed and a new trial ordered. – whether admission of rebuttal evi- tended that the trial judge Aliens Order 1946 – Aliens Act, DPP v Heaney, Court of dence prejudiced defence of accused wrongly refused to give the jury 1935 Criminal Appeal, 17/01/2000 The applicant had been charged a warning regarding the lack of The applicant had attempted to [FL2713] with a number of fraud offences, corroborating evidence. In addi- enter the country, having landed had been convicted and sought tion, it was contended that the at Dublin airport. The immigra- Prejudicial evidence leave to appeal. On behalf of the trial judge wrongly refused the tion official was not satisfied Right to privacy – mens rea – applicant, it was argued that the application of counsel for the with the applicant’s bona fides and harassment – conviction – appropri- charge in relation to the visual applicant that the prosecutrix be refused him permission to land. ate penalty – defences – reasonable identification evidence was incor- recalled to be cross-examined. The applicant was subsequently excuse – whether sentence imposed rect. In addition, complaints were The court refused the applica- detained pending deportation. appropriate – whether charge of trial made both in regard to the tion and held that section 7 of The applicant brought judicial judge correct – whether evidence admission of certain video evi- the Criminal Law (Rape) review proceedings seeking an admitted prejudiced accused – Non- dence and also in regard to rebut- (Amendment) Act, 1990 did not order of certiorari in respect of Fatal Offences against the Person tal evidence which was allegedly make the corroboration warning the order of deportation and Act, 1997, section 10 improperly admitted and had, it mandatory in all cases. The issu- damages for wrongful detention. The appellant had been convict- was claimed, prejudiced the ing of such a warning was at the Murphy J held that the applicant ed of an offence under section 10 defence of the accused. The court discretion the trial judge after had not showed that the decision of the Non-Fatal Offences against rejected the arguments advanced having considered all the evi- to deport him was unreasonable the Person Act, 1997. The offence on behalf of the accused. The dence. The trial judge did not and accordingly refused all was a relatively new one and the trial judge had charged the jury err in principle or fail to balance reliefs sought. appellant was sentenced to three correctly regarding the visual fairly the rights of the applicant Kanaya v Minister, High years’ imprisonment. A number identification evidence in ques- in refusing to recall the pros- Court, Mr Justice Murphy, of difficulties had arisen in the tion. The rebuttal evidence had ecutrix to be cross-examined on 21/03/2000 [FL2680] case, including the appellant’s also been properly admitted. matters requested by counsel for lack of English, his lack of under- DPP v Leahy, Court of the applicant. standing of legal proceedings and Criminal Appeal, 14/02/2000 DPP v JEM, Court of CRIMINAL the admission of allegedly preju- [FL2748] Criminal Appeal, 01/02/2000 dicial evidence which had [FL2694] Provocation occurred prior to the enactment Evidence and sexual offences Murder – conviction – appeal – of the relevant statute. In addi- Sexual assault – leave to appeal Incriminating statement whether test to be applied regarding tion, it was alleged that certain against conviction – whether verdict Sexual assault and rape – leave to provocation objective or subjective – relevant defences were not put to of jury was against weight of evi- appeal against conviction and sen- whether charge by trial judge to the jury. In the circumstances, the dence – whether trial judge erred in tence – whether applicant in fit state jury was correct court was satisfied that the trial refusing application that prosecutrix to be interviewed by gardaí – The applicant had been convict- was unsatisfactory, the conviction be recalled for cross-examination – whether statement admissible – ed on a charge of murder and would be quashed and a re-trial whether trial judge erred in not dis- whether questioned by excessive appealed against the conviction. would not be ordered. Certain charging jury – whether trial judge number of gardaí – whether breach The applicant argued that the orders in relation to the Non- wrongly refused to warn jury of dan- of custody regulation – factors in trial judge had wrongly incorpo- Fatal Offences against the Person ger in convicting applicant in absence considering appropriateness of sen- rated an objective element into Act, 1997 would, however, be of corroboration – whether corrobo- tence – Tr eatment of Persons in the test for provocation, claim- made restraining the appellant. ration warning mandatory – Custody in Garda Síochána

42 Law Society Gazette July 2000 Briefing

Stations Regulations 1987 contradict the trial judge’s state- tion was therefore unsafe, would The applicant had been convicted The appellant was convicted and ment that the test was a subjec- be quashed and a retrial ordered. in respect of a number of sexual sentenced to four years’ impris- tive one. In this regard, the judge DPP v Cotter, Court of offences and received both a onment on one count of sexual had charged the jury in accor- Criminal Appeal, 28/06/99 seven years’ and a two years’ sen- assault and to 12 years’ imprison- dance with the principles laid [FL2624] tence. As a result of an interven- ment on two counts of rape. He down in cases such as The People tion by the chief complainant, the sought liberty to appeal against (DPP) v MacEoin ([1978] IR 27). Review of sentence sentence of seven years was conviction and sentence, con- In quashing the conviction, the Aggravated sexual assault – false altered to two years with the bal- tending that an incriminating court ordered a retrial and said imprisonment – assault – guilty ance suspended. The present statement he had made while in that although a trial judge in plea – whether sentence unduly application had been brought as a garda custody was in breach of dealing with a plea of provoca- lenient – whether sentence reflected result of a conversation which the Treatment of Persons in tion should follow the MacEoin gravity of offences – previous rape allegedly took place between the Custody in Garda Síochána Stations case, the judge may not find it conviction – Criminal Justice Act, complainant, the accused and two Regulations 1987 and should not necessary, or helpful to the jury, 1984, section 4 – Criminal Justice of his friends on the morning the have been admitted in evidence. to quote from it. There was a Act, 1993, section 2 sentencing took place. Evidence In refusing leave to appeal danger that the jury in this The respondent had pleaded was given by three witnesses who against conviction, the court instance may have received guilty to a number of offences themselves inferred from the con- held that the regulation should inconsistent messages from the and was sentenced by the versation that the complainant be construed as providing that judge’s charge. Central Criminal Court to nine had deceived the jury. The court during the course of an interview DPP v Kelly, Court of years’ imprisonment in respect could not at this point decide who while those present remained the Criminal Appeal, 21/07/99 of three counts of aggravated was in fact telling the truth. same only two members of the [FL2561] sexual assault and three years’ However, the safest course of gardaí may actually question the imprisonment in respect of 12 action would be to grant leave to suspect. Although breach of this Unsafe conviction other counts, including false appeal, set aside the verdict of the regulation had occurred, it had Murder – guilty – majority verdict imprisonment and robbery, the jury and order a retrial. not affected the taking of the – whether conviction unsafe – trial sentences to run concurrently. DPP v Murphy, Court of admitted statement, no questions judge’s charge to jury – whether The final year of each sentence Criminal Appeal, 19/07/99 having been asked at that stage. onus of proof on defence – presump- was suspended. The DPP [FL2764] The trial judge had, however, tion that person is presumed to brought an application under failed to give adequate consider- intend natural and probable conse- section 2 of the Criminal Justice Double jeopardy ation to the applicant’s mental quences of conduct – preferable for- Act, 1993 to have the sentences Rape – buggery – second trial – same disorder and the last six years of mula – whether erroneous directions reviewed on the grounds that trial judge – conviction on rape the 12 years’ imprisonment likely to have weighed more heavily they were unduly lenient. The charges – double jeopardy – bill of would be suspended on terms. in jury’s mind than redirection – Court of Criminal Appeal grant- indictment differed from earlier trial DPP v Smith, Court of whether trial judge entitled to reject ed the application. A sentence of – evidence of injured party – whether Criminal Appeal, 22/11/99 concept of moral certitude as appro- nine years did not reflect the verdict perverse, inconsistent and [FL2710] priate standard of proof – whether gravity of the entirely separate against weight of evidence verdict of not guilty simpliciter offences of aggravated sexual The applicant claimed that the Practice and procedure should have been left to jury assault and false imprisonment. trial judge had erred in permit- Murder – provocation – trial judge’s On 24 October 1996, a jury in In addition, the respondent had ting the respondent to substitute charge to jury – subjective test – use the Central Criminal Court con- been convicted of rape on a pre- a new bill of indictment against of excessive force in relation to victed the applicant by a majori- vious occasion and had received him which differed from that pre- provocation – wording of precedent ty verdict of the murder of her a sentence of six years’ imprison- ferred against him at an earlier judgment – whether jury received husband on 3 January 1996 at ment. A probation officer had trial at which the jury had failed inconsistent messages from trial their home. The present applica- also assessed the respondent as ‘a to agree on a verdict in relation to judge’s charge – comparisons tion was treated as the hearing of very disturbed and dangerous certain charges. The court held between defences of self-defence and the appeal. The applicant con- man’. The sentence was unduly that provided the new counts provocation – burden of proof – tended that the trial judge erred lenient, would be quashed and a were founded on the documents guidance to trial judge as to princi- in telling the jury that there was sentence of 12 years would be and exhibits considered by the ples to be applied an onus on the accused to satisfy imposed in its place. district judge at the preliminary The applicant had been convict- the jury on the balance of proba- DPP v Melia, Court of examination, no injustice was ed of murder and was granted a bilities as to the truth of her evi- Criminal Appeal, 29/11/99 done to him by the substitution of certificate of leave to appeal by dence and that she did not intend [FL2693] the new bill of indictment. In the trial judge. During the trial, the natural and probable conse- addition, the adduction of addi- the judge ruled there was suffi- quences of her acts. The court Sentencing tional evidence in the form of a cient evidence of provocation on held that the trial judge erred in Allegations that jury had been mis- statement by the complainant the state’s case to allow the plea imposing an onus of proof on the led – rape – sexual assault – inter- made to gardaí after the earlier to go to the jury. Counsel for the applicant. These erroneous vention of chief complainant – evi- trial was not unfair to the appli- applicant submitted that pas- directions were likely to have dence – whether complainant had cant since the respondent was sages cited by the trial judge to weighed more heavily in the deceived jury – whether conviction entitled to serve it under section the jury still retained traces of jury’s mind than the redirection unsafe – whether verdict of jury 11(1) of the Criminal Procedure the objective test and tended to subsequently given. The convic- unsafe Act, 1967. The Court of Criminal

43 Law Society Gazette July 2000 Briefing

Appeal so held in dismissing the acted ultra vires – whether suspen- method of valuation was incor- the increased maintenance appeal. sion warranted warning – whether rect and the purported sale payable in respect of the other DPP v Moylan, Court of normal rules of natural justice would be a breach of the terms children and dismissed the cross- Criminal Appeal, 19/05/99 applied – whether constitutional of the trust. The applicant bank appeal by the applicant that no [FL2587] right to earn livelihood interfered sought directions from the High maintenance be paid personally with – Civil Service Regulation Court as to whether they should to her. The court also allowed the Admissibility of evidence Act, 1956, sections 1, 3, 13, 14 proceed with the proposed sale. appeal by the respondent in Rape – sexual assault – judges’ rules The applicants had been sus- The High Court declined to respect of the lump sum pay- – conviction – leave to appeal refused pended from employment pend- answer the questions posed and ment. – whether leave should be granted – ing a full investigation into alle- the applicant appealed. The MM v GM, Circuit Court, Mr whether trial judge erred in admit- gations of misconduct. The Supreme Court held that the Justice O’Donovan, 25/11/99 ting evidence of doctor – Criminal applicants initiated judicial issues involved were matters [FL2177] Law (Rape) Act, 1981 – Criminal review proceedings in the High which fell to be determined by Law (Rape) (Amendment) Act, Court, claiming that insufficient the vendor and purchaser and Separation agreement 1990 – Criminal Justice (Forensic details had been furnished to were not for the court to Maintenance – costs – custody – Evidence) Act, 1990 them in respect of the allegations address. Accordingly, the appeal earning potential of parties – The applicant claimed that the and that the suspensions should was dismissed. guardianship – accommodation – trial judge had erred in law and be quashed. O’Higgins J granted Bank of Ireland v Gleeson, order preventing development of site on the facts in admitting the evi- the relief sought, holding that Supreme Court, 06/04/2000 – interests of children – whether dence of a doctor concerning the there had been a denial of fair [FL2653] mother obliged to give up work to injuries which he observed on the procedures and that the purport- look after children lip of the accused while in garda ed suspensions were invalid. The The parties in the action had not custody. The court was satisfied respondent appealed. Keane CJ, FAMILY LAW been married but had two chil- that the doctor would have been in delivering the judgment of the dren and subsequently had entitled to give evidence of his court, held that the applicants Maintenance payments entered into a separation agree- observations in the course of his had been afforded the opportuni- Appeal against amount of mainte- ment. A dispute arose as to how first examination when he was ty to make representations. The nance – dependant child – lump the expenses of the children taking the samples authorised by conclusions reached by the High sum order – income of respondent – should be met. The applicant the Criminal Justice (Forensic Court judge that there had been disclosure of assets – financial posi- claimed that she had to give up Evidence) Act, 1990. The appli- a denial of fair procedures were tion of parties – whether court work in order to look after the cant contended that he was not not justified. Accordingly, the should amend original orders – children and thus her earning cautioned by the doctor or the appeal of the respondent would Family Law Act, 1945, section 42 potential was less. In addition, gardaí as to the consequences of a be allowed and the applicants’ Orders relating to the payment the applicant sought sole custody second examination by the doc- claim would be dismissed. of maintenance were made in of the children. Differences had tor or the use which might be Gavin v Minister for Finance, the instant case on 15 October also arisen regarding the accom- made of any information Supreme Court, 12/04/2000 1999 in the Circuit Court. The modation needs of the parties. obtained as a result of it. The [FL2728] respondent appealed in relation Kinlen J ordered that the injunc- Court of Criminal Appeal reject- to the amount of maintenance tion obtained by the applicant ed the argument that the exami- made payable in respect of the over a site owned by the respon- nation constituted an intrusion of EQUITY AND TRUSTS eldest son, whom the respon- dent be lifted. The respondent the applicant’s constitutional dent claimed was no longer a would undertake to build accom- right to privacy. The trial judge Landlord and tenant dependant child within the modation on the site which did not err in exercising his dis- Directions to trustee – settlement – meaning of the relevant legisla- would accommodate the chil- cretion to admit evidence of the contract for the sale of land – obliga- tion. The respondent also dren. The parties would have disputed examination. The Court tions of trustee to beneficiaries – appealed in relation to increases joint custody of the children and of Criminal Appeal so held in whether court in position to give made in respect of the orders of they would jointly discharge the refusing the application for leave directions regarding obligations of maintenance payable to other expenses of children. The court to appeal. trustees – Central Bank Act, 1971 children and also in relation to also made additional orders DPP v Murray, Court of – Landlord and Tenant (Ground the payment of a lump sum to regarding incidental expenses of Criminal Appeal, 12/04/99 Rents) (No 2) Act, 1978 – the applicant. The applicant the children, such as holidays, [FL2763] Landlord and Tenant cross-appealed in relation to the health insurance and accommo- (Amendment) Act, 1984 – finding that regular maintenance dation. The court also stated that, Tr ustee Act 1893 should not be paid to her. as such, the applicant and respon- EMPLOYMENT The respondent objected to the O’Donovan held that the eldest dent owed no duty towards each sale of premises held under a son should not receive mainte- other than joint parenting. Suspension of employment trust. The respondent was a ben- nance as he was no longer a EH v JM, High Court, Mr Fair procedures – disciplinary action eficiary under the said trust. The dependant member of the fami- Justice Kinlen, 04/04/2000 – civil service procedures – judicial premises had been valued in ly. However, the respondent [FL2581] review – audi alteram partem – accordance with the provisions of should in some way contribute nemo iudex in sua causa – whether the Landlord and Tenant (Ground to the eldest son in an informal Family law and mental health suspensions unwarranted and Rents) (No 2) Act, 1978. The manner. O’Donovan J upheld Marriage – nullity – capacity to unlawful – whether respondent had respondent claimed that this the orders made in relation to enter into normal marital relation-

44 Law Society Gazette July 2000 Briefing ship – emotional state of petitioner – defendants. The defendants assignment of the lease. Judge LOCAL GOVERNMENT psychiatric evidence – role of court – sought to manage the complex John F Buckley held that in the appointed medical inspector – and instituted a number of present case such a guarantee Planning whether petitioner capable of giving changes to the original care con- was not suitable and declared Leave to apply for judicial review – full, free and informed consent to tract. The plaintiffs brought that the landlord had according- planning permission granted – marriage ceremony – Marriages proceedings claiming that the ly unreasonably refused consent whether leave to seek judicial review (Ireland) Act 1844 defendants had failed to honour to the assignment of the lease. should have been granted – whether The petitioner sought a decree their obligations as set out in the Gunne v Pembroke Estates, time limits in respect of judicial of nullity in relation to a mar- care contract. In addition, the Dublin Circuit Court, Judge review complied with – whether riage entered into with the plaintiffs contended that terms, Buckley, 15/05/2000 [FL2742] orders made by local authority con- respondent. The petitioner of as set out in an advertising stituted planning decisions within claimed that by reason his emo- brochure, had not been adhered meaning of Planning Acts tional immaturity, mental state to. The plaintiffs sought decrees LICENSING The applicant had applied for and personality, he had not the of specific performance. The and had been granted leave to requisite capacity at the time of court rejected the claim of the Adjoining unlicensed seek judicial review on an ex the marriage ceremony to enter plaintiffs, holding that the premises parte basis in respect of orders into a normal marital relation- defendants were not obliged to Existing licensed premises – statut- made by Dublin Corporation. ship. Psychiatric evidence ten- provide residential nursing facil- ory interpretation – objections – Both the notice party and dered to the court suggested that ities. The defendants were enti- appeal – whether new licence could respondent contended that the petitioner had a personality tled to vary the terms of the care be granted in respect of existing leave to seek judicial review disorder including a separation contract. The plaintiffs could premises and new premises – should not have been granted anxiety disorder. Murphy J was not be said to possess property whether new premises ‘attached or and sought to have the leave satisfied that the petitioner did rights to the main house of the adjoining existing premises’ – to seek judicial review set not possess the emotional capac- complex and, as such, only had whether issue of new licence would aside. In this regard, the ity to enter into a normal marital rights to receive care facilities in render existing premises ‘more suit- respondent and notice party relationship with the respon- the main house. Accordingly, the able’ for the carrying out of business contended that the orders in dent. Accordingly, the petitioner claim was dismissed. – Licensing (Ireland) Act 1902 – question were planning deci- had not given a fully free or Honiball v McGrath, High Intoxicating Liquor Act, 1960 – sions and therefore that leave informed consent to marriage. Court, Mr Justice Kearns, Courts of Justice Act, 1936 to seek judicial review must The ceremony of marriage of 23/03/2000 [FL2564] The applicant had sought a pub- comply with the necessary time the parties was therefore lican’s licence in respect of a limits and must be made on declared null and void and the Landlord and tenant premises, a portion of which was notice. The applicant argued petitioner declared free of all Conveyancing – consent to assign presently licensed and another that the orders were in fact sig- bonds of marriage with the lease – guarantor of lease required – portion which was unlicensed. nifying agreement by the cor- respondent. landlord required guarantor to act The application was opposed by poration to submissions made GF v JB,High Court, Mr as principal obligor and not merely a number of objectors. In the by the developers and were not Justice Murphy, 28/03/2000 as surety – use of guarantee set out Circuit Court, the application planning decisions as such. [FL2667] in precedent book – whether form of was refused and this refusal was Kelly J held that the orders in guarantee sought by landlord appealed to the High Court. In question did not appear to unreasonable – whether landlord the High Court, Kearns J posed amount to planning decisions. LAND LAW had unreasonably refused consent to a number of questions in the Consequently, leave to seek assign lease form of a consultative case stated judicial review had been prop- Conveyancing The court would consider all the for the Supreme Court. The erly granted and was not sub- Landlord and tenant – breach of relevant facts of the case in main issue concerned whether ject to the procedures set out in terms of lease – specific performance deciding whether it was reason- the entire premises must form a the Local Government (Planning – service charges – misrepresenta- able for a landlord to demand single entity in order for the new and Development) Act, 1992. tion – planning – right of access – that a guarantor of a lease be licence to issue. Murphy J, in The application by the respon- whether defendants entitled to jointly and severally liable for delivering the opinion of the dent and the notice party was reside in property – whether defen- the performance of covenants court, held that the entire prem- dismissed. dants entitled to alter terms of con- and conditions contained in the ises must be capable of forming O’Connor v Borg Develop- tract – whether defendants obliged lease. The plaintiff had sought to one single unit for the purposes ments,High Court, Mr Justice to provide residential nursing facili- assign the lease and the defen- of licensing. In addition, the Kelly, 26/05/2000 [FL2775] G ties – whether terms in brochure dant had furnished a guarantee adjoining premises must be such could override terms of care contract which it required to be signed by that the premises currently The information contained here is – Companies Act, 1990, section the guarantor of the new tenant. licensed was rendered more suit- taken from FirstLaw’s Legal Cur- 12(2) – Registration of Title Act, The plaintiff objected to the said able for the carrying out of busi- rent Awareness Service, published 1964, section 72 guarantee, complaining that it ness. The matter as answered every day on the Internet at www. The plaintiffs comprised of a was too onerous. The plaintiff would now fall to be determined firstlaw.ie. For more information, number of residents of a retire- subsequently brought proceed- by the High Court. contact bartdaly@ firstlaw.ie or ment home complex. The com- ings, claiming that the defendant Hannigan Holdings Ltd, FirstLaw, Merchants Court, plex had run into difficulties and as landlord was unreasonably Supreme Court, 13/04/2000 Merchants Quay, Dublin 8, tel: 01 had been taken over by the withholding its consent to an [FL2729] 679 0370, fax: 01 679 0057.

45 Law Society Gazette July 2000 McKinsey & Company

An invitation to act outside the law.

How should a major corporation the way businesses develop, but the way Our non-hierarchical culture means develop its internet strategy? whole industries move forward. you'll be expected to take on as much responsibility as you can handle. How will the high street change in the You have an excellent academic record interactive age? and have demonstrated a high level of It's a career move that will take you well achievement that distinguishes you from beyond the limits of the law. What's the best strategy for a company your peers. As a fast tracking barrister or looking to grow through merger and acqui- a solicitor with experience from a top law If you would welcome the challenge of sition? firm, you're already on your way to an being part of our Dublin team, please impressive legal career. And you know email your CV and cover letter in These are just some of the questions that you're capable of even more. To help you confidence to consultants at McKinsey tackle every day. realise those ambitions, we'll provide the [email protected] We're putting them to you because, as an expert training and support. And you'll Alternatively, please forward to: exceptional lawyer with excellent problem- learn quickly by working with the top man- Miriam Cody solving and lateral thinking skills, you're well agement of major companies from day McKinsey & Company placed to help answer them. one. No. 80 Harcourt Street As a McKinsey consultant, you can set You'll be able to gain valuable new skills Dublin 2. your mind to the widest possible range and a broad understanding of business Phone: (01) 478 5500. of non-legal commercial challenges. You'll issues. You'll also be free to choose the Fax: (01) 478 5512 be dealing with the big issues - the strate- projects that interest you most and prove gic questions that influence not only yourself in a wide range of environments. www.mckinsey.com

ROCHFORD BRADY the only Irish provider of ancillary legal services CUTTING YOUR

to be awarded the COSTS ISO 9002 LEGAL SERVICES LTD Are you paying too much for your Law Searching/ Town Agency work? Change to Rochford Brady with our ‘one stop shop’ service (law searching and town agency under one roof) WE CUT YOUR COSTS

OWNERSHIP/TITLEINQUIRY SPECIALISTS TOWN AGENTSLAWSEARCHERSSUMMONSSERVERS COMPANYFORMATION AGENTS If you are not with Rochford Brady, isn’t it time you changed? We offer monthly retainer fees for town agency work • Fixed/maximum prices for closing searches • Planning searches carried out in all counties For our brochure Phone: 1850 529732 (20 lines) Fax: 1850 762436 (5 lines) Briefing Eurlegal

News from the EU and International Law Committee Edited by TP Kennedy, director of education, Law Society of Ireland Asylum policy: The European Union framework

his article outlines the •Pending entry into force of regarded as safe countries of • the exchange of statistics and Telements of European Union new Community measures, origin in respect of each other. information on asylum and asylum policy. It does not existing common justice and The exceptions to the general immigration should be critically assess whether this home affairs (CJHA) measures rule are extremely strict. improved. policy is adequate, fair or taken under the Maastricht effective or how asylum and treaty – many characterised as Milestones since the The action plan set out the refugee issues have been ‘soft law’ – remain in force Amsterdam treaty timetable for specific actions to addressed in Ireland. •A time limit of five years for A number of key developments be taken ‘as quickly as possible’, The following matters are dis- taking action applies for most since the signing of the within two years of the cussed: areas, though not for ‘burden Amsterdam treaty should be Amsterdam treaty’s entry into • the effect of the Amsterdam sharing’ briefly identified. force and within five years. treaty • The key institutional players • milestones since the signing of are the council (as legislator) Austrian presidency strategy paper Report of the high-level group on the Amsterdam treaty and the commission (as prop- In July 1998, the Austrian presi- asylum and migration • developments in a number of oser and guardian of the dency submitted its strategy In December 1998, the high- key areas, and treaty). Member states have, paper on migration and asylum level working group on asylum • some core issues. temporarily, a shared right of policy (see the Europa website, and migration was set up to initiative. The European http:/ue.eu.int/jai/article.asp?lang=e establish a common, integrated, The Amsterdam treaty Parliament has less input into n&id=89909809). This provided a cross-pillar approach targeted at The Amsterdam treaty was signed the decision-making process basis for a reassessment of the situation in the most impor- in October 1997 and entered into than might have been hoped. European policy in the context of tant countries of origin and tran- force on 1 May 1999. The legal The Court of Justice enjoys, increased numbers of asylum- sit of asylum-seekers and basis for action in the areas of with certain qualifications, its seekers, the problem of secondary migrants. The final report of the external border control, asylum, usual powers of judicial review movements, the giving of tempo- high-level group and accompa- immigration and safeguarding the •Article 66 EC requires the rary protection and the relation- nying action plans designed to rights of third-country nationals council to take measures ensur- ship with immigration policy. tackle the root causes of flight or has shifted from the Maastricht ing co-operation between migration in important source treaty inter-governmental frame- national administrations and Council and commission action plan countries was submitted to the work to a Community frame- between such administrations At the December 1998 Vienna Tampere European council. work. The relevant provisions are and the commission. There is a European Council, the council (The final report is contained in contained in a new Title IV in the clear need for exchanging sta- and commission presented an the minutes of the justice home EC treaty designed to progressive- tistics and intelligence on action plan on how best to imple- affairs (JHA) council meeting of ly establish an area of freedom, migration and information on ment the Amsterdam treaty provi- 4 October 1999 [council press security and justice (see articles 61 national legislation and admin- sions on the area of freedom, release no 11281/99]. For the to 69 EC). istrative practices security and justice (see council accompanying action plans, see A number of features of the • The need for maintaining rela- press release no 13844/98). council documents 11424 to new EC treaty framework should tions with the UN and other The action plan emphasised 11428/99.) be briefly mentioned: organisations and agencies is that priority was to be given to •Ireland, the United Kingdom recognised in articles 302 to ensuring the necessary protection Tampere European council and Denmark have opted to 304 EC. A conference declara- for those in need of it, even if they The October 1999 Tampere stay wholly or partly outside tion states that consultations did not fully meet the criteria of European council was a special the Title IV system. Ireland is are to be established with the the Geneva convention. summit on the creation of an ready to participate in Title IV United Nations High In setting out the priorities for area of freedom, security and jus- to the maximum extent com- Commission on Refugees measures in the field of asylum, tice. The Tampere milestones patible with the common trav- (UNHCR) and other relevant the action plan noted that: included a concept of ‘freedom’ el area. Ireland and the United international organisations on • due account had to be taken of covering ‘those whose circum- Kingdom may each apply to asylum policy matters the difference between the stances lead them justifiably to opt in for some or all areas, and • The protocol on asylum for areas of migration and asylum seek access to our territory’. have already signalled their nationals of member states of • a system of European solidari- Common policies on asylum and intentions to do so in parts of the European Union provides ty should figure prominently immigration had to be based on the asylum field that member states are to be in an overall migration strategy principles clear to Union citizens

47 Law Society Gazette July 2000 Briefing and had also to offer guarantees Member state responsible for deter- Minimum standards on the Minimum standards on procedures to those seeking protection in or mining asylum applications reception of asylum-seekers in member states for granting or access to the European Union. Article 63(1)(a) EC requires the Article 63(1)(b) EC requires the withdrawing refugee status The aim was ‘an open and secure council to adopt, within five council to adopt, within five Article 63(1)(d) EC requires the European Union, fully commit- years of the entry into force of years of the entry into force of council to adopt, within five years ted to the obligations of the the Amsterdam treaty, ‘criteria the Amsterdam treaty, minimum of the Amsterdam treaty’s entry Geneva refugee convention and and mechanisms for determining standards on the reception of into force, measures on minimum other relevant human rights which member state is responsi- asylum-seekers in member standards on procedures in mem- instruments, and able to respond ble for considering an applica- states. ber states for granting or with- to humanitarian needs on the tion for asylum submitted by a A 1999 joint action – to apply drawing refugee status. basis of solidarity’. Finally, the national of a third country in one until the end of 1999 – was A 1995 council resolution area of freedom, security and jus- of the member states’. adopted by the council in 1999 addresses minimum guarantees tice had to be based on the prin- This matter is currently and was designed to enable prac- for asylum procedures (OJ 1996 ciples of democracy and demo- addressed by the 1990 Dublin tical support for the reception C274/13). A 1997 council resolu- cratic control. convention and associated instru- and voluntary repatriation of tion on unaccompanied minors As far as asylum was con- ments (see the various decisions refugees and others (OJ 1999 who are nationals of third coun- cerned, the European Council: of the committee set up by article L114/2). tries contains specific provisions •reaffirmed the importance 18 of the Dublin convention). The Tampere European on asylum procedures (OJ 1997 attached to absolute respect of The action plan called for council saw common minimum C221/23). The 1999 joint action the right to seek asylum work on the effectiveness of the conditions of reception as a nec- covers measures ‘to support asy- • agreed to work towards estab- Dublin convention to be undertak- essary element of the CEAS in lum procedures which are fair, lishing a common European en within two years. The the short term. The commission efficient and accessible to persons asylum system (CEAS) based Ta mpere European council saw a is preparing a preliminary study in need of international protec- on the full and inclusive appli- clear and workable determina- and a proposed directive will be tion’. cation of the Geneva convention tion of the state responsible for submitted at the beginning of The action plan called for the • set out the core short-term examining asylum applications as 2001, with a view to adoption by adoption of such measures, with a and long-term elements of the a necessary element of the CEAS April 2001. view to reducing the duration of CEAS and gave political direc- in the short term. asylum procedures, within two tions to the commission and A regulation on the adoption Minimum standards with respect years after the entry into force of the council. of criteria and mechanisms in the to the qualification of third country the Amsterdam treaty. area covered by the Dublin con- nationals as refugees A working document on com- Scoreboard vention should be adopted by This matter is currently mon standards in asylum proce- In March 2000, the commission April 2001. The commission addressed by a series of council dures was tabled by the commis- issued a ‘scoreboard’ to review issued a working document in conclusions and resolutions: (a) sion in March 1999 (SEC [1999] progress on the creation of an March 2000 (SEC[2000] 522 [31 the 1992 London resolutions on 271 final) and transmitted to the area of freedom, security and jus- March 2000]), and a proposal manifestly unfounded applica- European Parliament for its opin- tice, soon given political endorse- should be submitted by the end tions for asylum and on a har- ion. The Tampere European ment by the JHA Council. (For of this year. monised approach to questions council saw common standards on the final English-language ver- concerning host third countries procedures as a necessary element sion, see Com 2000 167/final/2 Eurodac (see council press release of the CEAS in the short term. [13 April 2000]; see also council The proposed Eurodac system is 10518/92); and (b) the 1996 The necessary measures should be press release 7100/00 [Presse 81].) a Community-wide system for council joint position on the har- taken in accordance with the The scoreboard promotes trans- the comparison of fingerprints of monised application of the defi- Amsterdam/action plan timetable, parency, keeps up the momentum asylum applicants, designed to nition of the term refugee in that is, by April 2001. generated by the Tampere facilitate the application of the article 1 of the Geneva convention European council and exercises Dublin convention. (OJ 1996 L63/2). Single/common European pressure where there is delay. It is The legal basis for such a Article 63(1)(c) EC requires asylum procedure as a ‘rolling document’ which is to measure is now article 63(1)(a) of the council to adopt, within five The action plan called for a study be updated once under each pres- the EC treaty. A draft text for a years of the entry into force of to establish the merits of a single idency. convention under Title VI of the the Amsterdam treaty, measures European asylum procedure with- Maastricht treaty was ‘frozen’ in on minimum standards. in two years of the entry into force Developments in key areas December 1998. The rapid The Tampere European of the Amsterdam treaty. Article 63(1) EC requires the introduction of Eurodac was council saw the approximation of The Tampere European coun- council to adopt, within five years urged by the action plan and the rules on the recognition and cil considered that, in the longer after the entry into force of the Tampere European council. A content of refugee status as a term, there should be a common Amsterdam treaty, measures on commission proposal for a regu- necessary element of the CEAS asylum procedure. The commis- asylum within a number of speci- lation was made in May 1999 in the short term. The council sion was asked to prepare a com- fied areas, as set out below. Such (COM[1999] 260 final [26 May was urged to adopt, on the basis munication on this within one measures are to be taken in 1999]), and an amended propos- of commission proposals, the year. accordance with the 1951 Geneva al was tabled in March 2000 necessary decisions in accor- Article 63(2) of the EC treaty convention, the 1967 protocol and (COM[2000] 100 final [15 dance with the Amsterdam/action requires the council to adopt, other relevant treaties. March 2000]). plan timetable by April 2004. within a period of five years after

48 Law Society Gazette July 2000 Briefing the entry into force of the admission and residence of dis- member states, to be taken within there is acceptance of the need for Amsterdam treaty, measures on placed persons on a temporary two years of the entry into force of a common asylum procedure and refugees and displaced persons basis (OJ 1995 C262/1). A 1996 the Amsterdam treaty. a uniform status for refugees in within a number of specified council decision introduced an the context of the common areas, as set out below. alert and emergency procedure Partnerships with countries of European asylum system. Issues of for burden sharing with regard to origin/countries of transit competence need to be sensitively Minimum standards for giving the admission and residence of The recognition that unwanted addressed. temporary protection to displaced displaced persons on a temporary migration is a problem that needs persons from third countries who basis (OJ 1996 L63/10). to be dealt with at the source is Freedom and security cannot return to their countries of The 1999 joint action contains central to EU migration and asy- The treaty concepts of ‘freedom’ origin provisions on Community finan- lum policy. and ‘security’ can become The 1999 joint action contains cial support for projects in rela- A country/region-specific polarised. The freedom which asy- provisions on the reception and tion to reception and voluntary approach was taken in an action lum-seekers and others hope to voluntary repatriation of dis- repatriation, as well as emer- plan adopted by the council in enjoy may be counterbalanced, if placed persons. Article 63(2)(a) gency assistance in relation to January 1998 in relation to the not outweighed, by a desire for EC requires the council to adopt, refugees from Kosovo. influx of migrants from Iraq and security by member state nation- within five years of the entry into Article 63(2)(b) EC requires the neighbouring region. als. Expressing concerns about force of the Amsterdam treaty, the council to adopt, within five The 1998 action plan called for national self-identity need not be measures on minimum standards years of the entry into force of an assessment of countries of ori- seen as racist or xenophobic. for giving temporary protection. the Amsterdam treaty, measures gin in order to formulate country- Recent and not-so-recent The Tampere European coun- on promoting a balance of effort specific integrated approaches European history suggests that cil urged the council to step up its between member states in receiv- within a two-year time-frame. there is a fine line to be drawn in efforts and invited the commis- ing and bearing the consequences The final report of the high-level all member states between accept- sion to explore the possibilities of of receiving refugees and dis- group and accompanying action able and unacceptable manifesta- making some form of financial placed persons. plans designed to tackle the root tions of national sentiment. reserve available in situations of A commission proposal on set- causes of flight or migration in mass influx of refugees. A com- ting up a European refugee fund important source countries was Fundamental rights mission proposal was adopted on was tabled on 14 December 1999 submitted to the Tampere The Tampere European council 24 May 2000 (IP/00/518). and adoption is likely in the near European council. recognised the importance which future (COM[1999] 686 final). The council stated the need for the forthcoming EU charter of fun- Minimum standards for Other areas of activity are not a comprehensive approach to damental rights would have to the complementary/subsidiary specifically addressed in the EU migration, addressing political, creation and operation of the area protection for persons in need of treaties, but have been introduced human rights and development of freedom, security and justice. It international protection by the council. issues in countries and regions of is not clear if and how the charter Article 63(2)(a) EC also requires origin and transit. The high-level will specifically cover asylum- and the council to adopt, within five Uniform status for those group’s mandate was continued other protection-seekers. years of the entry into force of granted asylum and it was to draw up further There have been suggestions the Amsterdam treaty, measures In January 1999, the commission action plans. The council and that, outside the strict scope of the on minimum standards for giv- made a proposal for a council commission were to report back Geneva convention, asylum should ing protection to ‘persons who decision based on article 235 of to the European council on the be seen not as a subjective, individ- otherwise need international the EC treaty (new article 308 of implementation of the first action ual right but as an ‘institutional protection’. the EC treaty) establishing a plans in December 2000. New response’ by the recipient state. The Tampere European coun- Community action programme action plans are to be adopted by The introduction of a targeted cil saw such measures as a neces- to promote the integration of April 2001. rights regime does not, in itself, sary element of the CEAS to be refugees (COM[98] 731 final). mean giving uncontrolled rights of achieved in the short term. The The Tampere European coun- Some core issues entry and residence. It could serve council was urged to adopt the cil considered that, in the longer By way of conclusion, some core to demonstrate the essential com- necessary decisions in accordance term, Community rules should issues relating to asylum policy in mitment of the European Union with the Amsterdam/action plan lead to a uniform status for those the EU may be identified. to protect those in need and to timetable, that is, by April 2004. granted asylum valid throughout recognise their essential dignity. the Union. The commission was The relationship between the EU Solidarity or burden sharing asked to prepare a communica- (including the EC) and the individ- Transparency The question of burden sharing tion on this within one year. ual member states In the complex, multi-faceted with regard to the admission and The commission has indicated The principle of subsidiarity, the democratic polity that is evolving residence of displaced persons on that, as a follow-up to the forth- subject matter and the close link in Europe, the utmost transparen- a temporary basis was addressed coming communication, a legisla- with critical questions of state cy is a fundamental and essential in the mid-1990s by the council, tive instrument may be needed. security and ‘self-definition’ sug- basis for public debate. The lack primarily to deal with potential gest that Community legislation of transparency can only foster crises stemming from the conflict Secondary movements should not be too intrusive. The ignorance and bigotry. G in the former Yugoslavia. A 1995 The action plan called for action reference to minimum standards council resolution concerned to limit ‘secondary movements’ in the relevant treaty provisions John Handoll is a solicitor with the burden sharing with regard to the by asylum-seekers between supports this view. Nonetheless, Dublin firm William Fry.

49 Law Society Gazette July 2000 Briefing Recent developments in European law EMPLOYMENT dren. It held, therefore, that the 14 September 1999. General requires each of the contracting Austrian legislation was not in Motors is the proprietor of the states to appoint a central authority Gender discrimination breach of article 141. Benelux trademark ‘Chevy’ for motor to receive requests for service from Case C-281/97 Andrea Krüger v vehicles. Yplon is the proprietor of other contracting states. Kreiskrankenhaus Ebersberg, judg- Case C-218/98 Oumar Dabo ‘Chevy’ as a Benelux trademark, but Ireland implemented this con- ment of 9 September 1999. Krüger Abdoulaye and Ors v Régie nationale used for detergents and various vention through two statutory was a nurse employed by the defen- des usines Renault SA, judgment of cleaning products. In 1995, General instruments which amended the dant. She worked less than 15 hours 16 September 1999. The plaintiffs Motors sought an injunction restrain- Rules of the Superior Courts (SI No a week. She claimed a Christmas are male employees of Renault. ing Yplon from using the trademark 101 of 1994) and the District Court bonus equivalent to a month’s Female employees of Renault were ‘Chevy’, as it diluted its own trade- Rules (District Court [Service salary. The defendant refused to entitled to a payment of 7,500 mark and damaged its advertising. abroad of documents in civil and pay, claiming that part-time workers francs on taking maternity leave. Yplon defended the action, arguing commercial matters]) Rules, 1994 were excluded from receiving such Their salaries continue to be paid that GM had not shown that its (SI No 120 of 1994). The master of bonuses under the collective agree- during maternity leave. The ECJ had trademark ‘has a reputation’ within the High Court is designated as the ments. The European Court of to consider whether this lump sum the meaning of article 5(2) of direc- central authority under the conven- Justice (ECJ) had to consider payment violated article 141 of the tive 89/104/EEC on trademarks. tion. Irish judicial documents must whether this exclusion amounted to treaty, which established the princi- This article gives protection to cer- be forwarded to the central authori- indirect discrimination against ple of equal payment for men and tain trademarks even over dissimilar ty of the state concerned by a ‘judi- women, contrary to article 141 of women. The court held that such a goods or services. There must be a cial officer’ in Ireland. For Ireland, a the treaty and directive 76/207. The lump sum payment came within the sufficient level of knowledge of the practising solicitor, a county regis- court held that the bonus could be definition of pay. Renault argued that earlier trademark that the public trar, a District Court clerk or the considered as pay and thus fell out- the payment offset occupational dis- may make an association with a master of the High Court are side the scope of the directive. The advantages suffered by women as a later trademark even when used for deemed to be judicial officers. ECJ held that if the exclusion of result of pregnancy. A woman on non-similar products or services. Service of foreign judicial docu- women in the agreement affected a maternity leave could not be pro- The effect of this must be to dam- ments in Ireland can be effected considerably higher percentage of posed for promotion. The period of age the earlier trademark. The through the master of the High women than men, it could be con- maternity leave does not count as a degree of knowledge is reached Court, by a solicitor or by post. sidered to be indirect discrimination, period of service in the job. She may when the earlier mark is known by a In addition to signing the Hague offending against article 141. not participate in training and it may significant part of the public con- convention, many EU member be difficult for her to adjust on her cerned by the products or services states also agreed a number of Case C-249/97 Gabriele Gruber v return to employment. The ECJ covered by that mark. In examining bilateral or regional instruments on Silhouette International Schmied accepted this argument and held whether this condition is fulfilled, service of judicial documents. This GmbH & Co KG, judgment of 14 that article 141 does not preclude the national court must take into led to conflicting rules and some September 1999. Ms Gruber had payments such as this, which are account all the relevant facts of the confusion. As a result, the EU drew been employed by Silhouette from designed to offset occupational dis- case – in particular, the market up a draft convention which would 23 June 1986 to 13 December advantages arising from workers share held by the trademark, the supersede the Hague convention 1995. She had two young children being away from work. intensity, geographical extent and and other treaties within the EU. In and had taken a period of maternity duration of its use and the size of May 1997 the member states leave followed by parental leave. the investment made by the under- signed a convention on the service She experienced difficulties in find- INSOLVENCY taking in promoting it. Territorially, of judicial and extra-judicial docu- ing childcare facilities. Though she the condition is fulfilled when the ments. This convention was never had demonstrated a wish to contin- One of the exclusions from the mark has a reputation in a member ratified. In early 2000, the commis- ue with her job, she resigned in Brussels convention on jurisdictional state. The court held that the sion proposed a directive which November 1995 to take care of her rules and the recognition and stronger the earlier mark’s distinc- incorporated the text of this con- children. She was paid the statutory enforcement of foreign judgments tive character and reputation, the vention. This was referred to the termination payment. She argued was matters relating to insolvency. easier it is to accept that damage European Parliament, which pro- that the Austrian legislation, which There have been sporadic efforts in has been caused to it. posed some amendments – the limited her termination payment, the EU to reach agreement on com- most significant being its adoption was in breach of article 141. The mon rules and there has been a con- as a regulation. The commission in Austrian legislation provided for vention proposed by the Council of LITIGATION March 2000 put an amended pro- greater compensation to be paid to Europe. In August 1999, Germany posal forward, and this is awaiting employees who left their employ- and Finland proposed a commission Judicial and extra-judicial the views of the council. ment for ‘important reasons’. She regulation. It proposes the introduc- documents The proposed regulation will argued that it was indirect discrimi- tion of common EU rules for deter- Most member states of the EU are apply within the EU, and within it will nation, in that the limited sum was mining the applicable law for insol- signatories of the 1965 Hague con- prevail over any other service con- paid to both men and women who vency proceedings. It also covers vention on the service abroad of vention such as the Hague conven- left work after the birth of a child, jurisdictional issues. The European judicial and extra-judicial docu- tion. The Hague convention will con- but was likely to prejudicially affect Parliament is currently being con- ments in civil and commercial mat- tinue to apply to service of judicial more women. The ECJ looked at the sulted about this proposal. ters. The purpose of the Hague con- documents outside the EU. two circumstances. ‘Important rea- vention is to simplify the serving of The regulation asks states to sons’ were defined as those relating judicial documents of one state in designate public officers, authori- to working conditions which made INTELLECTUAL another. Such documents include ties or other persons as ‘transmit- continued work impossible, so that PROPERTY summons, pleadings and other doc- ting agencies’ and ‘receiving agen- the worker could not even be expect- uments used in civil litigation. It cies’. If Ireland was to follow the ed to work out a notice period. The Trademarks sets out procedures to ensure prop- same approach as with the Hague court held that this was quite differ- Case C-375/97 General Motors er service and that proof of service convention, it could appoint solici- ent from resigning to look after chil- Corporation v Yplon SA, judgment of is provided. The convention tors as such agencies. G

50 Law Society Gazette July 2000 People and places

More than just desserts: The Law Society recently hosted a dinner for Chief Justice Ronan Keane in Blackhall Place. Pictured (left to right) are Junior Vice-President Owen Binchy, Senior Vice-President Ward McEllin, the chief justice, President Anthony Ensor, Director General Ken Murphy and Deputy Director General Mary Keane

Staying up to speed Assembled for the recent CLE/Employment Law Committee seminar on the Employment Equality Act were (above, left to right) the Law Society’s Geraldine Hynes, Hugh O’Neill, chairman of the Employment Law Committee, Terence McCrann of McCann FitzGerald, Gary Byrne of BCM E-dressing the group Hanby Wallace, Nial Crowley, chief executive of the Equality Authority, John Gaffney and Sandra Delany, both from solicitors William Fry, address and CLE’s Barbara Joyce a seminar on e-commerce last month. The event, which was held at Blackhall Place, targeted apprentices but also attracted qualified solicitors Pictured at the seminar on commercial leases were (below, left to right) Colin Keane of McCann FitzGerald, Ernest Farrell of Dockrell Farrell, Ian Scott of Arthur Cox, Niall Coleman from Beauchamps, Niamh O’Sullivan of A&L Goodbody and John Farrell SC

Branching out Gathered in front of their new branch office in Bundoran are (left to right) Michael Monahan, Jim Corbett and Michael J Horan of Horan Monahan Solicitors in Sligo

51 Law Society Gazette July 2000 People and places

New role for former EU official Arthur Cox has appointed Joe Brosnan as a consultant on European and government affairs. He recently returned to Joining forces in Kilkenny and Carlow Ireland from Brussels, where Gathered at a meeting of the Kilkenny and Carlow Solicitors’ Association in May were (front row, left to right) he served as chef de cabinet Elizabeth Walsh, Law Society Director General Ken Murphy, Law Society President Anthony Ensor, Kilkenny in the EU Employment and Solicitors’ Association President Nicholas Harte, Kilkenny Solicitors’ Association Secretary Martina Finlay, and Social Affairs Cabinet for more William Clarke; (back row, left to right) Martin Crotty, Yvonne Clarke, John Harte, Celine Tierney, Joseph Fitzpatrick, than six years Eugene O’Sullivan, Tim Kiely, Kieran Boland, John Quigley, Sarah Breslin, Pat O’Sullivan and Eithne Hegarty

Liaising in Laois Pictured at a recent meeting of the County Laois Bar Association were (front row, left to right) treasurer Josephine Fitzpatrick, Law Society President Anthony Ensor, association president Philip Meagher, Director General Ken Murphy, and secretary Bernadette Greene; (back row, left to right) Declan Breen, John Bolger, Catriona Lanigan, Donal Dunne, Finola Dunne, John Turley, Maria Hanley, John White, Ann Manning, Colm Murphy, Margaret O’Shea-Grewcock, Noel Egan, Eugene O’Connor and Brendan Macnamara Doyle Court Reporters EXCELLENCE IN REPORTING SINCE 1954 • Daily transcripts • Conferences • Real-time • Arbitrations • Search & Retrieval Software • Inquiries USA REGISTERED COURT REPORTING QUALIFICATIONS Principal: Áine O’Farrell 2 Arran Quay, Dublin 7. Tel: 872 2833 or 286 2097 (After Hours). Fax: 872 4486. E-mail: [email protected]

52 Law Society Gazette July 2000 Apprentices’ page SADSI Law Society team victorious in

Solicitors Apprentices Debating Society of Ireland the McGowan Cup Law Society...... 68 Fergus Doorly, at full-back, had a King’s Inns ...... 7 hat-trick. Maughan added the conversions. n 12 May, the Law Society The try par excellence came just Otrounced the King’s Inns at before full-time. From a restart, Anglesea Road, notching up ten lock Ronnie Neville caught the tries in the process and retaining ball in his 22 and proceeded to the McGowan Cup. run around five tacklers before While the battle of the backs sauntering over the tryline for was an even enough affair, the an impressive score. In fairness Law Society’s backline ran amok to Neville, he deserved it, as he on their hapless opposition. At was denied many a scoring flyhalf, David Maughan ran the opportunity due to Smith’s show using the centre pairing of uncharacteristic affection for The victors John O’Donoghue and Rob (Standing, left to right) Brian Horkan, Peter Tunney, Rob Laffin, Rob the ball. McNicholas to great effect. At McNicholas, Stefan O’Connor, Colm Kavanagh, Keith Smith, John Many thanks to the Old the breakdown, flankers Colm O’Donoghue, Ronnie Neville, David Maughan; (kneeling) Jason Teahan, Belvedere RFC for the use of the Kavanagh and Brian Horkan Fergus Doorly, Morris Phelan, and Eoin Wallace pitch and to BCM Hanby were quick to recycle the ball for Wallace for their generous Keith Smith and Rob Laffin, Indeed, most of the team Wallace, Jason Teahan, Stefan sponsorship, which ensured that who relished taking on three to were the beneficiaries of some O’Connor, Smith, McNicholas, the McGowan Cup never ran dry. four wigs at a time. good running rugby as Eoin and Maughan all touched down. Jason Teahan SADSI Career Combined professional Development Day practice course highlights tarting at 11am on 14 July opportunities for newly-qualified he February 2000 combined of merriment. Sin the Blue Room at solicitors. Opportunities to Tprofessional practice course’s The golf outing to Athy Golf Blackhall Place, the Career practice in-house or in taxation, recent Mystery Tour was a Club was also enjoyed by high, Development Day is worth a as well as the pros and cons of resounding success. The place of low and medium handicappers. visit by all apprentices large and small firms, will be mystery, Palmers of Kilternan, The inclement weather interested in expanding their presented and discussed. In true provided ample hospitality for conditions failed to dampen any career options. A top-class SADSI fashion, the business will revellers aboard the two double- spirits, and the cordial reception selection of lawyers from finish at 6pm in time for a wine decker buses, and it was not long extended by both the staff and London, Brussels and Ireland reception followed by a before everyone had readily members in the clubhouse will be providing advice on barbecue in Blackhall Place. adapted to their new-found place ensured everyone was teed up for the subsequent festivities. SADSI swings south So, while there were few birdies SADSI in on the course, there were few Fridays ago, the Scandinavia to join us. The plenty of ‘swallows’ in the Galway Aregional roadshow rolled gathering soon moved the clubhouse afterwards. into Cork with the sounds of short distance to Redz, where Odran Bannim On 24 June 2000, the 80s still ringing in our we danced into the small apprentices from all over the ears from the swinging hours. A great night was had country turned out on the sojourn on Shannonside the by all. INFORMATION EVENING: shores of the Corrib for the previous week. Special thanks to our kind AUTUMN 2000 COURSE barbecue organised by The locals gathered early at sponsors Ulster Bank for their The Law School and SADSI Conor Fottrell and David the Bailey and it wasn’t long continued support and to have organised an information Higgins and sponsored by before our colleagues from all Simon Murphy, president of evening for pre-professional the solicitors of Galway. For around the country began to the Southern Law apprentices on 10 July and 18 many, it was a case of what arrive. Praise must go to Association, for his support July at 7pm in Blackhall Place. happened in Galway, stays in Pauric EP Heraghty who and conviviality on the night. Further details are available Galway ... virtually travelled from Anthony Coomey from the Law School.

53 Law Society Gazette July 2000 Professional information

LOST LAND DN59597L; Lands: Known as 16 St

CERTIFICATES Begnets Villas in the parish of LawSociety Dalkey and Borough of Dun Gazette Registration of Title Act, 1964 Laoghaire; Co Dublin An application has been received from Regd owner: Patrick Downes & the registered owners mentioned in Siobhan Crowley; Folio: 37269F; ADVERTISING RATES the schedule hereto for the issue of a Lands: Townland of Fairview, the Advertising rates in the Professional information section are as follows: land certificate as stated to have been Barony of Uppercross situate to the Lost land certificates – £30 plus 21% VAT (£36.30) lost or inadvertently destroyed. A new south side of Nangor Road in the • Wills – £50 plus 21% VAT (£60.50) certificate will be issued unless notifi- town and parish of Clondalkin; Co • Lost title deeds – £50 plus 21% VAT (£60.50) cation is received in the registry with- Dublin • Employment miscellaneous – £30 plus 21% VAT (£36.30) in 28 days from the date of publica- Regd owner: Agnes O’Connor, Frances • tion of this notice that the original McGrath, Nora Deane, Bernadette HIGHLIGHT YOUR ADVERTISEMENT BY PUTTING A BOX AROUND IT – £25 EXTRA certificate is in existence and in the Kehoe, Bernardine Scully, Mary All advertisements must be paid for prior to publication. Deadline for custody of some person other than the O’Brien; Folio: DN496; Lands: sit- August/September Gazette: 18 August 2000. For further information, contact registered owner. Any such notifica- uate in the Townland of Catherine Kearney or Louise Rose on 01 672 4828 tion should state the grounds on Smotscourts; Co Dublin which the certificate is being held. Regd owner: Gretta Scarman, 75 The (Register of Titles), Central Office, Land Avenue, Ealing, London W13 8JS, and Barony of Pubblebrien; Co Regd owner: Michael Battle, Ash Park, Registry, Chancery Street, Dublin England and formerly of Limerick Ballintubber, Castlerea, Co (Published 14 July 2000) Gannoughs, Cleggan, County Regd owner: Derek Eason; Folio: Roscommon (formerly of 8 Galway; Folio: 3100F; Lands: 23380F; Lands: Townland of Oakdowns, Green Park, Regd owner: Carlow Urban Council; Townland of (1) Gannoughs (2) Sluggary and Barony of Clondalkin, Dublin 22); Folio: Folio: 11579F; Lands: Bestfield or Gannoughs (one undivided 31st Pubblebrien; Co Limerick 30469; Lands: Townland of Killerr, Dunganstown and Barony of part), (3) Gannoughs (one undivided Regd owner: Joseph Dalton; Folio: and Barony of Ballymoe; Co Carlow; Co Carlow 11th part), (4) Gannoughs, (5) 22921; Lands: Townland of Roscommon Regd owner: Eugene McGovern, Gannoughs (one undivided 31st Rhebogue, and Barony of Regd owner: Kathleen Muldoon, Altbrean, Swanlinbar, County part), (6) Gannoughs (one undivided Clanwilliam; Co Limerick Cloverhill, Roscommon; Folio: Cavan; Folio: 22626 & 23520; 11th part), (7) Gannoughs; the Regd owner: Brendan McGrath; 3924F; Lands: Townland of (1) Lands: Albrean, Commas; Area: Barony of Ballynahinch; Area: (1) Folio: 47299; Lands: (1) Townland Lissagallan, (2) Cams (one undivid- 75.038 acres; Co Cavan 1.198 hectares, (2) 3.045 hectares, of Cregmore (Browne) (one undi- ed 30th part), (3) Clooneenbaun and Regd owner: Stephen Sexton, (3) 0.546 hectares, (4) 2.617 vided 7th part), (2) Townland of Barony of Athlone North; Area: (1) Carrickacromin, Mountain Lodge, hectares, (5) 3.045 hectares, (6) Lisduff; Barony of Kilmaine; Area: 3.182 hectares, (2) 12.141 hectares, Cootehill, Co Cavan; Folio: 1173; 0.546 hectares, (7) 0.7006 hectares; (1) 1.40 acres, (2) 38.619 acres; Co (3) 0.456 hectares; Co Roscommon Area: 43.875 acres; Co Cavan Co Galway Mayo Regd owner: Patrick John Carway, Regd owner: Tullig Homes Limited Regd owner: Jeremiah Sheehy Regd owner: Michael Plunkett and Ballyconnell, Cloughboley PO, (Limited Liability Company), (deceased); Folio: 2649F; Lands: Mary Plunkett, Forthill, County Sligo; Folio: 2679; Lands: Cahercalla More, Kilrush Road, Townland of Clash West, the Ballyhaunis, County Mayo; Folio: Townland of (1) Ballyconnell (2) Ennis, Co Clare; Folio: 7562F; Co Barony of Trughanacmy; Co Kerry 5996; Lands: Townland of Mayo, Ballineden (3) Ballineden and Clare Regd owner: Daniel M Keane and Barony of Costello; Area: 29a Barony of Carbury; Area: (1) 5a 1r Regd owner: Tom O’Herlihy and Judy (deceased); Folio: 18540; Lands: 2r 3p; Co Mayo 10p, (2) 4a 1r 0p, (3) 1a 3r 33p; Co O’Connell; Folio: 63158F; Lands: Townland of Knocknagoshel West, Regd owner: Charles Rodgers Sligo Known as a plot of ground situate and Barony of Trughanacmy; Co (deceased) and Ellen Rodgers, 26 Regd owner: Michael Ryan; Folio: in the Townland of Dunmore, the Kerry Sunnybank Road, Potters Lane, 19850F and 34029; Lands: Barony of Ibane and Barrymore, Regd owner: John J O’Neill (deceased); Hertfordshire, England and for- Churchquarter and Knocknakill, and the County of Cork; Co Cork Folio: 29152; Lands: Townland of merly of 2, Aughadrinagh, and Barony of Kilnamanagh Upper; Regd owner: John Leo Cassidy and Teer and Barony of Corkaguiny; Castlebar, Co Mayo; Folio: 9447F; Co Tipperary Theresa Reynolds, 4 Knather Area: 3.093 acres; Co Kerry Lands: Aghadrinagh, and Barony Regd owner: Anthony Charles Road, Ballyshannon, Co Donegal; Regd owner: Timothy O’Herlihy; of Carra; Area: 0.426acres; Co Esmonde; Folio: 5188; Lands: Folio: 6312F; Lands: Townparks; Folio: 3567F; Lands: Townland of Mayo Cornalack, and Barony of Ormond Co Donegal Tullig, and Barony of Trughanacmy; Regd owner: Matthew Martin, Lower; Co Tipperary Regd owner: Louis Grant, Ludden, Co Kerry Donaghmore, Ashbourne, Co Regd owner: Patrick Joseph Lynam, Buncrana, County Donegal; Folio: Regd owner: Mary Fahy, Mary Meath; Folio: 17837; Lands: Tangara, Marlinstown, Mullingar, 12392; Land: Ludden; Area: 2.627 Murphy, Mary O’Flynn, Ellen Milltown, Area: 6.56 acres; Co Co Westmeath; Folio: 4291; Lands: acres; Co Donegal Hogan, Una May O’Neill; Folio: Meath Marlinstown; Co Westmeath Regd owner: Margaret Murtagh; 1605; Lands: Reviewfields, and Folio: DN25935L; Lands: situate Barony of Shillelogher; Co at 57 Glencloy Road in the parish Kilkenny and district of Clonturk; Co Regd owner: Mary Jo Hughes; Folio: Dublin 5451F; Lands: Maryborough, and Regd owner: Gavan Ryan and Barony of Maryborough East; Co Anthony J Carney; Folio: Laois DN85859F; Lands: Known as Unit Regd owner: Sean Rowney; Folio: 2, Ground Floor, Whitefriars, 1121F; Lands: Maryborough, and Be Sure. Engage a Forensic Aungier Street in the parish of St Barony of Maryborough; Co Laois Peter and District of South Regd owner: Gerard Synnott and Mary 26/28 South Terrace, Cork Tel:021 431 9200 Central; Co Dublin Ryan-Synnott; Folio: 29296F; Fax:021 431 9300 Regd owner: John Wallace; Folio: Lands: Townland of Loughanleagh,

54 Law Society Gazette July 2000 Professional information

Regd owner: Denis Guidera and Fraher, Edmond Kevin, otherwise McArdle, Aine (deceased), late of 28 St Ref: PH/joc/tmc, 104 Henry Street, Pauline Guidera (both deceased); Kevin Fraher, late of 105 Upper Brigid’s Road, Clondalkin, Dublin 22. Limerick, tel: 061 311288, fax: 061 Folio: 1909F; Lands: Goreyhill, Leeson Street, Dublin 4 and formerly Would any person having knowledge of 311289 and Barony of Gorey; Co Wexford of 75 Pembrook Court, Dublin 4 and a will made by the above named Regd owner: Alice W Waygood and 96 Morehampton Road, Donnybrook, deceased who died on 6 March 2000, Walsh, John (deceased), late of Harold Fraser Pelley; Folio: Dublin 4. Would any person having please contact Ryan & Ryan, Solicitors, Whitestown, Kilmacthomas, Co 11604; Lands: Townland of knowledge of a will of the above named 5 St Brigid’s Road, Clondalkin, Dublin Waterford. Would any person having Ballincarrig lower and Barony of deceased who died on 27 January 2000, 22, tel: 01 459 1693 or fax: 01 459 2416 knowledge of the whereabouts of a will Ballincor North in the County of please contact Neil Twomey & Co, dated 2 October 1964 executed by the Wicklow; Co Wicklow Solicitors, Lismore, Co Waterford, tel: McDonnell, Liam, late of 21 above named deceased who died on 5 Regd owner: Patrick Joseph Charles 058 54075, fax: 058 53323 Beaumont Crescent, Beaumont, Dublin October 1964, please contact M/s T McEvoy; Folio: 1153; Lands: Part 9. Would any person having knowledge Kiersey & Co, Solicitors, 17 Catherine of the lands of Ballingate Lower Heaphy, Thomas (deceased), late of 4 of a will executed by the above named Street, Waterford tel: 051 874366 and Barony of Shellelagh; Co Castleview, Ardfinnan, Clonmel, Co deceased who died 15 May 2000, please Wicklow Tipperary and formerly of Castlemore contact Crean & Co, Solicitors, 10 Arms, Farnane, Cork and of Rathroe, Rostrevor Terrace, Rathgar, Dublin 6, MISCELLANEOUS Killenaule, Co Tipperary. Would any tel: 01 492 3899 (reference AC) WILLS person having knowledge of a will Northern Ireland solicitors provid- made by the above named deceased O’Reilly, Mary (deceased), late of 87 ing an efficient and comprehensive Brooks, John (deceased), late of who died on 2 January 1995, please Slieve Rua Drive, Lower Kilmacud legal service in all contentious/non- Shrone, Glengarriff, Co Cork. Would contact Albert C O’Dwyer & Co, Road, Stillorgan, County Dublin. contentious matters. Dublin-based any person having knowledge of a will Solicitors, Barrack Street, Cahir, Co Would any person having knowledge of consultations and elsewhere. Fee made by the above named deceased Tipperary. a will executed by the above named apportionment. ML White, Solicitors, who died on 8 April 2000, please con- deceased who died on 6 July 1982 at De 43-45 Monaghan Street, Newry, tact McCarthy & McCarthy, Solicitors, Hurley, James and or Bridget (both Montford Nursing Home, County Down, tel: 080 1693 68144, Main Street, Ballincollig, Co Cork, tel: deceased), brother and sister, Westminister Road, Dublin 18, please fax: 080 1693 60966 021 870550, fax: 021 872341 Boggauns, Newbridge, Co Galway. contact Vivian C Matthews & Co, Would any person having knowledge Solicitors, 7 Main Street, Dundrum, Northern Ireland agents for all con- Brown, Dolores (deceased), late of of any wills made by either of the County Dublin, tel: 01 295 1236, fax: 01 tentious and non-contentious matters. 81 Glencloy Road, Whitehall, above named deceased who respec- 298 0280 Consultation in Dublin if required. Fee Dublin. Would any person having tively died on 16 October 1999 and 28 sharing envisaged. Offices in Belfast, knowledge of a will made by the January 1999, please contact Sweeney, Turlough, late of Newry and Carrickfergus. Contact above named deceased who died on Rolleston, Solicitors, Church Street, Palmerstown, Co Dublin and Norville Connolly, D&E Fisher, 13 May 1999, please contact Richard Portlaoise in the county of Laois, tel: Palliskenry, Co Limerick. Would any Solicitors, 8 Trevor Hill, Newry, tel: Lee & Company, Solicitors, 123 0502 21329 fax, 0502 20737, DX No person having knowledge of a will made 080 1693 61616, fax: 080 1693 67712 Upper Churchtown Road, Dublin 47002, Portlaoise by the above named deceased who died 14, tel: 01 296 0931, fax: 01 296 0932 on 6 December 1999, please contact Personal injury claims, employment, Kennedy, Thomas and Josephine Messrs Patricia O’Connor, Solicitor, family, criminal and property law spe- Davey, Francis (deceased), late of (both deceased), husband and wife, Ballinacarrow, Ballymote, County Ballyara, Tubbercurry, Co Sligo. Sligo and Rathbaun, Templemore, Would any person having knowledge NORTHERN DUBLIN SOLICITORS’ Ballymote, County Sligo. Would any of any wills made by either of the above PRACTICE OFFERS person having knowledge of a will exe- named deceased who respectively died IRELAND cuted by the above named deceased on 11 March 1999 and 14 July 1999, SOLICITORS AGENCY WORK who died on 3 February 2000, please please contact Rolleston, Solicitors, IN NORTHERN contact Johnson & Johnson, Solicitors, Church Street, Portlaoise in the We will engage in, Ballymote, County Sligo, tel: 071 County of Laois, tel: 0502 21329 fax, and advise on, IRELAND 83304, fax: 071 83526, Ref: D184 0502 20737, DX No 47002, Portlaoise all Northern Ireland related matters, * All legal work undertaken particularly personal on an agency basis * All communications to clients injury litigation. through instructing solicitors Consultations where * Consultations in Dublin if required TITLE RESEARCH convenient. Fee sharing Contact: Séamus Connolly YOUR PARTNER IN TRACING Moran & Ryan, Solicitors, envisaged. Arran House, MISSING BENEFICIARIES 35/36 Arran Quay, Dublin 7. PROBATE & • Free professional assessments SUCCESSION OLIVER M LOUGHRAN Tel: (01) 872 5622 GENEALOGY – • Range of cost structures & COMPANY Fax: (01) 872 5404 WORLDWIDE • Excellent success rate worldwide 9 HOLMVIEW TERRACE, • A complete service to the profession e-mail: [email protected] OMAGH, CO TYRONE or Bank Building, Hill Street For more information or our detailed brochure please call Phone 004428) 8224 1530 Newry, County Down. +44 020 7549 0900 Fax: (004428) 8224 9865 Charter House, 2 Farringdon Road, London EC1M 3HN Tel: (0801693) 65311 Fax: +44 020 7549 0949 DX: 53347 Clerkenwell e-mail: Fax: (0801693) 62096 Email: [email protected] www.title-research.com [email protected] E-mail: [email protected]

55 Law Society Gazette July 2000 Professional information cialists in England and Wales. Offices Reasonable condition required. Reply Recently-qualified solicitor (mid-50s) days from the date of this notice. in London (Wood Green, Camden to Box No 60 seeks PQE in Dublin area. Practical In default of the said notice being Town and Stratford) and Birmingham. experience in conveyancing, probate, lit- received, Michael Dempsey intends to One of our staff is in Ireland for one Ordinary seven-day publican’s igation, and family law in a smaller prac- proceed with the application before the week in every month. Legal aid avail- licence required, anywhere in Ireland. tice preferred. Worthwhile experience county registrar of the county of kildare able to clients that qualify. Contact Please reply to Lennon Heather & more important than remuneration. at the end of 21 days from the date of this David Levene & Co at Ashley House, Company, Solicitors, City Quay House, Reply to Box No 64 notice and will apply to the county regis- 235-239 High Road, Wood Green, City Quay, Dublin 2. Reference PMcM trar for the county of Kildare for direc- London N22 8HF, England, tel: 0044 Locum solicitor with experience tions as may be appropriate on the basis 181 881 7777, or The McLaren required for conveyancing and general that the person or persons beneficially Building, 35 Dale End, Birmingham ROYAL ACCOUNTING practice work in Cork City for the entitled to the superior interest and that B4 7LN, tel: 0044 121 212 0000. SERVICES months November to February. Apply any person or persons beneficially enti- Alternatively e-mail us on info@davi- Specialising in maintaining with CV to Anne L Horgan & Co, tled to the superior interest including the dlevene.co.uk or visit our website at accounts for small to medium-sized Solicitors, 3 Convent Road, Blackrock, freehold reversion in the aforesaid prem- www.davidlevene.co.uk. practices and companies. Cork or tel: 021 357729 ises are unknown or unascertained. Service includes any or all Signed: Brown & McCann, Solicitors, Naas, London solicitors will advise on UK of the following Bookkeeper required by small central Co Kildare matters and undertake agency work. • VAT returns • Dublin practice. One day a week. Tel: 01 21 June 2000 All areas. Corporate/private clients. • Client invoices & statements • 874 4057 Ellis & Fairbairn, 26 Old Brompton • Creditors & bank A/Cs • In the matter of the estate of Thomas Road, South Kensington, London • PAYE/PRSI returns • Locum solicitor or recently-qualified Confrey (deceased), late of 99 SW7 3DL, tel: 0044 171 589 0141, Tel: (Meath) 046 30083 solicitor seeking experience required Inchicore Road, Dublin 8 fax: 0044 171 225 3935 from 1 November 2000 to 1 April 2001 Take notice that the above named for busy practice in Ennis. Candidates Thomas Confrey (deceased), late of 99 Agents – England and Wales. We Seven-day clean licence for sale – must have experience in Inchicore Road, Dublin 8, died on 29 are willing to act as agents for Irish Galway City. Please contact Ann conveyancing/probate and litigation. August 1998 intestate a bachelor without solicitors in civil and criminal litiga- Houlihan, 01 660 3636 Attractive terms for suitable candidate. issue. And further take notice that we tion. Contact: Olliers, Solicitors, Apply in confidence to Box No 65 believe that the said Thomas Confrey Alderman Downward House, 2/3 The may have had a first cousin named Birtles, Civic Centre, Wythenshawe, EMPLOYMENT Conveyancer urgently required by Bridget Gorman who lived in the Manchester M22 5RF, tel: 0044 161 legal office of Dublin-based telecommu- Ballyfermot area of Dublin and a first 437 0527, fax: 0044 161 437 3225 Experienced solicitor, retired from nications company. May suit person cousin named Christy Malone, who lived general practice, willing to undertake wishing to work part-time or partly from in Dublin. Northern Ireland solicitors. Will conveyancing and probate work from home. Please telephone in confidence: If any person knows the whereabouts advise and undertake NI-related mat- own home, might suit firm unable or 01 701 5930 and quote reference EGH of the said Bridget Gorman or Christy ters. All areas corporate/private. unwilling to engage additional staff, Malone, would they contact the below- Agency or full referral of cases as pre- modern office facilities. Reply to named solicitors who have carriage of ferred. Consultations in Dublin or Box 55 TITLE DEEDS the administration of the said estate, elsewhere if required. Fee sharing within six weeks of the date appearing at envisaged. Donnelly Neary & Assistant solicitor required for busy In the matter of the Landlord and the foot of this notice. Donnelly, 1 Downshire Road, Newry, general practice in Tipperary South. Tenant Acts, 1967-1994 and in the Signed: Delahunty O’Connor & Co, Co Down, tel: 080 1693 64611, fax: Two years’ PQE preferred. The matter of the Landlord and Tenant Solicitors, 179 Crumlin Road, Dublin 12 080 1693 67000. Contact KJ Neary appointee will deal primarily with con- (Ground Rents) No 2 Act, 1978 and in 30 May 2000 veyancing/probate/commercial work the matter of that part of the lands but may be expected to handle litigation situate in the townland of Ballitore, EYE INJURIES AND matters. Apply in writing with CV and Barony of Narragh and Reban East OPHTHALMOLOGIAL references to Box No 61 and County of Kildare more particu- J. DAVID O’BRIEN NEGLIGENCE larly comprised in folio 6998F of the Experienced solicitor with capital, Register County Kildare: an applica- ATTORNEY AT LAW Mr Louis Clearkin ChM, FRCS, presently assistant to sole practitioner, tion by Michael Dempsey 20 Vesey St, Suite 700 New FRCOphth, DO, MAI, MEWI would like to hear from solicitor in same Take notice that any person having any York, NY. 10007 Consultant Ophthalmic Surgeon position with a view to partnership interest in the unencumbered freehold Tel: 001212-571-6111 Experienced expert witness in arrangement, Cork City or County. interest of the following property: a plot Fax: 001212-571-6166 ophthalmological personal Reply to Box No 62 of ground in the townland of Ballitore, PERSONAL INJURY ACCIDENT injury, medical negligence and Barony of Narragh and Reban East and CASES civil litigation Solicitor required for busy North County of Kildare being the property CONSTRUCTION Wexford office. Experience in con- more particularly comprised in folio RAILROAD Renuntiabo, 8 Rose Mount, veyancing and litigation desirable but 6998F of the Register County Kildare. MARITIME Oxton, Wirral, Merseyside, not essential. Excellent salary and bene- Take notice that Michael Dempsey AVIATION L43 5SW fits for the right applicant. Send CV to intends to submit an application to the CAR/BUS/TRUCK secretary: +44 (0) 151 6047047 Lombard & Cullen, Solicitors, Market county registrar for the county of fax: +44 (0) 151 6047152 Square, Gorey, Co Wexford Kildare for the acquisition of the unen- MEMBER AMERICAN AND NEW e-mail: [email protected] cumbered freehold interest in the afore- YORK STATE TRIAL LAWYERS Drogheda – long-established firm is said property and any party asserting that ASSOCIATION anxious to engage a solicitor for general they hold a superior interest in the afore- Enrolled as Solicitor Wanted: pre-1979 Irish law reports, practice, excellent conditions and salary. said premises are called upon to furnish in Rep. of Ireland, England in particular 1960-1978, but other Apply with CV and full details to Box evidence of title to the aforementioned & Wales years considered in addition. No 63 premises to the below named within 21

56 Law Society Gazette July 2000