Contents GazetteLawSociety Cover Story The write stuff! Regulars 14 An increasing number of Irish solicitors are putting pen to paper to share their expertise. So what does it take to become a legal author – and can you expect to retire on your royalties? Maria Behan gives you President’s message 3 chapter and verse News 4

Letters 6 Courting success 19 Courts Service Chief Executive PJ Fitzpatrick Viewpoint 8 talks to Conal O’Boyle about his plans to drag our creaking courts system into the 21st century Book reviews 36

Briefing 40 Taxing times Council reports 40 22 Some solicitors seem to forget that they deserve to be paid for their Committee work and leave the cost-gathering exercise to the end. Tony Halpin reports 42 and Taxing Master James Flynn discuss the concepts behind recovering legal costs and the importance of proper recording systems Practice notes 44 Legislation update 44 French connections Personal injury 28 The French viager system allows you judgments 46 to sell your house but continue living in it for the rest of your life. Brendan FirstLaw update 49 Walsh explains the system and asks: Eurlegal 53 could it work here?

People and places 57 Making a Spanish will Most Irish people understand the Law School news 59 32 importance of leaving a will, but Apprentices’ page 60 those who own property in other jurisdictions must make special Professional arrangements. Rafael Berdaguer information 61 outlines the steps to take when Cross-examination 64 drawing up a Spanish will

Curriculum development: 35 criminal law Continuing its series of articles on the professional practice course syllabus for apprentices, the Curriculum Development Unit explains what’s involved in its criminal law module

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 1 E-mail: [email protected] Law Society website: www.lawsociety.ie Subscriptions: £45

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he winds of change are certainly blowing. High and Supreme courts A new century, a new millennium and a (published early last year) new Chief Justice. I’m sure all my recommended that colleagues in the solicitors’ profession appropriately-qualified T will join me in welcoming Mr Justice solicitors should be Ronan Keane as he takes over the highest judicial eligible for appointment office in the land. Rarely can such an appointment to the superior court have been so warmly greeted or been so widely benches. approved. And why not? We can look forward The new Chief Justice is a lawyer of consummate to the day when one of learning and erudition, but also – and just as our gifted solicitor importantly – a man of fine judgement and integrity, colleagues will be as he has displayed time and again since his elevated to a seat on the appointment to the High Court in 1979. His Supreme Court in a sensitive handling of the Stardust Inquiry in 1981 similar fashion. was justly applauded, as was the time he spent as On a less weighty matter, readers of this month’s ‘We can look President of the Law Reform Commission. The issue of the Gazette will notice that a number of forward to author of a number of important textbooks, changes have been made to the design of the including the seminal Company law in the Republic of magazine. As you know, the magazine was last the day when Ireland, Mr Justice Keane is a man who can truly do redesigned at the time of its relaunch three years one of our justice to the pivotal position he now holds in the ago. In the intervening period, the Gazette has won a third branch of our system of government. We wish number of awards and feedback from the profession gifted solicitor him well for the future. has been extremely positive. But, as always, nothing colleagues By the same token, we also extend our best wishes stays the same for too long, and we felt that after to outgoing Chief Justice Liam Hamilton and three years a make-over was probably in order. A will be congratulate him on a job outstandingly well done. fresh look for a new century, if you like. I’m very elevated to pleased with the new design, which aims to make Tiocfaidh ár lá? the magazine easier on the eye and more fun to read, the Supreme The two other new appointments to the Supreme and I congratulate the Gazette team on all the hard Court’ Court bench – Ms Justice Catherine McGuinness work they have put in to bring this to fruition. and Adrian Hardiman SC – will also be widely welcomed by the profession. While not exactly a We want to hear from you! surprise (both were widely tipped in the press in the But a magazine is more about its readers than the days before the announcement), they prove that the way it looks, so we want to hear from you. We want Government can bring vision and imagination to the your letters, we want your funny stories for the making of judicial appointments. Dumb and dumber section – we can’t run them if you This is good news for both branches of the legal won’t share them with us! – we want to hear about profession. Mr Hardiman’s elevation directly from who’s moved jobs, and where. If you have news and the Inner Bar to the Supreme Court bench shows gossip from the profession, we’d like to hear it for that lack of experience on the bench is no obstacle to the People and places page. those with a sharp legal mind. As you will be aware, Enjoy your reading anyway – and I hope the the Law Society has fought long and hard (and winds of change blow you nothing but good for the eventually successfully) to win the right of audience coming year. in the superior courts – and the right to sit on the benches of those courts. The Report of the working Anthony Ensor, group on qualifications for appointment as judges of the President

3 Law Society Gazette Jan/Feb 2000 News

UNDERCOVER POSTINGS FOR GARDAÍ Land Registry fees hike ‘could The Law Society’s Litigation and Family Law and Civil Legal Aid committees has fuel house price inflation’ recommended that solicitors, when writing to members of An acklogs at the Land house prices’. He added that the Garda Síochána at their private BRegistry, coupled with new fee scale introduced by the addresses, should refer to the substantial increases in the cost Government ‘can only represent addressee as ‘Mr’ or ‘Ms’, of registering deeds, could fur- a further inflationary factor in rather than ‘Garda’. The Garda ther fuel house price inflation, house prices, which will be an Representative Association has the Law Society has warned. additional burden on brought to their attention that The Land Registry is currently purchasers’. mail addressed with the ‘Garda’ answering its phones for only Murphy concluded by urging title poses a possible security one hour a day in an effort to the Minster to simplify the fee risk when delivered to clear the backlog of work that system and to moderate the residences. has built up, while the recent increases. Government recently increased • Separately, the Law Society LEGAL FIRMS SOUGHT the fees payable for registering has described the huge backlog FOR E-BIZ DATABASE title and deeds to property. at the registry as ‘a national Ken Murphy: ‘backlog a national Enterprise Ireland’s new e- In some cases, these fees disgrace’ disgrace’. Apart from the huge business website, which aims have nearly doubled. For inconvenience to purchasers, to give small and medium-sized example, a property costing Reform John O’Donoghue, the the backlog means that house companies the know-how and over £40,000 will now attract Law Society’s Director General sales may be delayed because contacts they need to put their a Land Registry fee of £450, Ken Murphy warned that the proper title to the property in business on-line, is looking for as opposed to £250 before. fee increases ‘will not be question has not yet been law firms for its database of e- In a letter to the Minster for welcomed by house purchasers registered by the Land commerce experts. Those Justice, Equality and Law at this time of grossly-inflated Registry, it says. interested in being included should fill in a form at the Enterprise Ireland website at ‘Enemy of http://www.enterprise-ireland. Mandatory CLE soon? com/ecommerce/form. Law Society working group at least a minimum period of legalese’ dies Ahas been established under time each year updating their awyer, professor and FINANCIAL SEMINARS the chairmanship of Council knowledge of the law and, Lwriter David Mellinkoff, a Two seminars on the member and Education perhaps, also improving their lifelong opponent of the complementary topics of Your Committee Chairman, Michael office management systems and ‘contagious verbosity’ he real bottom line and How to Peart, to consider whether or skills. claimed afflicted many improve your banking will be not it would be desirable for The Society’s working group lawyers, died in Los Angeles held at Blackhall Place on 31 every practising member of the is currently engaged in a wide on 31 December at the age of March. The cost is stg£185 per profession to be obliged to consultation process on this 85. Mae West was one of the seminar or stg£333 for both. spend a certain number of hours subject. If you have any views clients of his lucrative Beverly For a brochure and further a year attending continuing legal on the issue, please convey Hills law practice, but his information, phone Janine Smith education. Such a requirement them in writing before Friday primary claim to fame was his on 0044 29 2039 8161 or e- exists in many other 18 February to Michael Peart, campaign against what he mail her at [email protected]. jurisdictions. Its objective is to 24 Upper Ormond Quay, called ‘the junk antiques’ ensure that practitioners spend Dublin 7. cluttering up the legal MALE VICTIMS OF DOMESTIC vocabulary, such as VIOLENCE CONFERENCE New Education Centre ‘forthwith’, ‘heretofore’ and A conference on male victims takes shape ‘whereas’. His most of domestic abuse will take The architects and celebrated book, the 1963 builders of the new place on 30 March at the volume Language of the law Education Centre have Carrickdale Hotel, Dundalk, Co confirmed that the £5 (Aspen Publishers), remains a Louth. The keynote speaker will million project is both classic today. be Dr Warren Farrell, author of on budget and on time Mellinkoff’s ultimate cure The myth of male power. For for the scheduled for legalese was simple, but completion date of the further details and booking perhaps too harsh to be put end of June. After that, information, contact AMEN, 1 there will be period of into practice: ‘The most Brews Hill, Navan, Co Meath, fitting out, with the first effective way of shortening tel: 046 23718; e-mail: professional course of law language’, he wrote, ‘is [email protected]; website: 300 apprentices due to for judges and lawyers to stop begin in October. www.amen.ie. writing’.

4 Law Society Gazette Jan/Feb 2000 News

LUCK OF THE DRAW Society in talks to resolve The following members have been named as winners in the Law Society’s 1999 prize bonds army deafness litigation draw: William Crowley, Killarglin, Co Kerry; Michael he Law Society has agreed Early last month the Society • Recent media statements Dickson, Dublin; PA Dorrian, Tto the Minister for met representatives of the 20 attributed to the Minister had Buncrana, Co Donegal; William Defence’s request that it assist law firms handling most of the considerably diminished the Harnett, Dublin; Kevin him in seeking a resolution of army deafness claims. Follow- goodwill which would be nec- McGilligan, Dublin; Justin the army deafness litigation. ing the meeting, Director essary for any agreement to be Sadleir, Gort, Co Galway. The Minister’s invitation came General Ken Murphy wrote to reached between the plaintiffs’ in a letter just before the Minister making a number solicitors and the State COMPENSATION FUND Christmas in which he asked of points: • The plaintiffs’ solicitors had PAYOUT the Society to create a ‘channel • The plaintiffs’ solicitors, agreed to a meeting with the The following claim amount was of communication’ between subject only to their clients’ Minister’s representatives to admitted by the Compensation himself and the plaintiffs’ best interests, had always discuss the proposed Fund Committee and approved solicitors in the army deafness been anxious to settle army compensation scheme for payment by the Law Society cases. The Minister’s proposed deafness cases in the most •A group of four plaintiffs’ Council at its meeting in solution, based on the speedy and cost-effective solicitors had been December 1999: Conor recently-delivered Supreme way possible. It was the nominated to meet the McGahon, 19 Jocelyn Street, Court decision in the Hanley manner in which the State Minister’s representatives Dundalk, Co Louth – £300. case, centres on the chose to defend these cases and report back. establishment of a scheme to that resulted in the costs on CONSTRUCTION INDUSTRY enable the speedy payment of both sides of this litigation That meeting is scheduled to REGULATIONS compensation in the being considerably higher take place in Blackhall Place The Construction Industry outstanding 10,000 claims. than they needed to be this month. Monitoring Agency monitors firms in the construction industry for compliance with the terms of the Registered Warm welcome for new Chief Justice Employment Agreement he appointment of Mr His very ordered mind and bal- (Construction Industry Pensions TJustice Ronan Keane as the anced judgement have been Assurance and Sick Pay) new Chief Justice was marked displayed in his long experience Regulations under the Industrial by warm approval from the on the bench. He is also a Relations Acts, 1946-1969. legal profession and beyond. remarkably modest person’, These regulations require Welcoming the appointment Murphy added. employers to provide pension, on behalf of the Law Society, There was similar approval sick pay and death benefit Director General Ken Murphy for the appointments of Ms assurance. CIMA asks Law said: ‘It would be impossible to Justice Catherine McGuinness Society members to remind think of a more popular and Adrian Hardiman SC to their construction industry choice’. the Supreme Court, with one clients of their legal obligations ‘He is a judge of great learn- newspaper describing the three in this matter. Contact Cathy ing, integrity and humanity, nominations as ‘radical in the Harrison on 01 406 8026 or with an outstanding intellect. Mr Justice Ronan Keane true sense of the word’. Eleanor Cullen on 01 406 8014.

No-fault compensation scheme ‘could hit most vulnerable’

hildren born with brain medical negligence costs in compensation schemes which proposal seemed to have Cdamage as a result of State hospitals. But Director operate in other parts of the reached a very advanced stage medical negligence could lose General Ken Murphy world had shown ‘significant ‘without consultation with the out if the Government pushes expressed concern at proposals shortcomings’ over time. These people who understand the ahead with its reported no- which ‘reportedly would included: current compensation system fault compensation scheme, the remove the constitutional • Inadequate compensation best, namely the lawyers on Law Society has said. rights of brain-damaged babies’ levels both sides, who have According to recent press and which were ‘motivated • Spiralling costs, and experience of it’. reports, the then Minister for primarily by considerations of • The removal of deterrents The Law Society has Health, Brian Cowen, was keen cost’. and accountability. formally requested a briefing to introduce such a scheme for In a letter to the Minister, on the contents of the former children born with cerebral Murphy also pointed out that He added that the Society was Minister’s proposal as ‘a matter palsy, in an effort to reduce the handful of no-fault particularly concerned that the of urgency’.

5 Law Society Gazette Jan/Feb 2000 Letters Letters

Parking problems at Blackhall Place

From: Conor O’Toole, Co Kildare prior notification from the Law extremely busy location, hosting a was recently advised by the Society has caused me great wide range of events and functions Iattendant at Blackhall Place difficulty in commuting from on a daily basis – everything from that I was not allowed to park in Newbridge to Dublin. I would Council and committee meetings, the Law Society car park unless appreciate confirmation that members’ functions, weddings, I was an employee of the Law this facility will be restored or at CLE seminars and so on. With Society or attending a seminar. the very least an explanation as the on-going renovations of the This took place at 9am in the to why it has been curtailed in building and construction of the morning and, having run the this unsatisfactory fashion. new Education Centre, a decision gauntlet of traffic from was taken late last year to prohibit Newbridge to the Law Society, I The Law Society’s Facilities student parking at Blackhall then had to drive back out into Manager, Barry Carey, Place. This was done to ease the chaos of Blackhall Place and replies: congestion and facilitate the with great difficulty find parking There are at present only 110 car smooth operation of the premises. elsewhere. The car park at the parking spaces at the Society’s It is very much regretted that time was less than half full. car parking is at a premium and Blackhall Place headquarters. the Society is not in a position to As a practising solicitor and when cars were directed to the Unfortunately, car parking cannot offer car parking facilities to every member of the Law Society, I football pitch. Further, I am not be provided at all times for every one of our 7,000 members. think it is grossly unfair that I at all convinced that a seminar member who would wish it. However, recognising the problem, have been refused this facility. would require the use of all of Understandably, priority must be the Society has been attempting to On previous occasions I have the car park. As a frequent given to those working or negotiate a reduced rate for been able to find parking on visitor to the Law Library, the conducting business on the members using a car park on parchment ceremony days when removal of this facility without premises. Blackhall Place is an nearby Benburb Street.

Your views Passing the Y2K buck Your letters make your From: Peter Shee, Cork computer industry of the nature with life policies. magazine and may influence n the November issue of the and extent of the problem. There Computer technical literature your Society. Send your letters Gazette, the Law Society’s is a large amount of information starts to refer increasingly to this to the Editor, Law Society I Technology Committee available which suggests that the problem from about 1971 Gazette, Blackhall Place, Dublin 7, or e-mail us at highlighted the difficulties which problem could, and should, have onwards. Between 1979 and [email protected] or you could arise from computerised been avoided. 1984, there were articles can fax us on 01 672 4801 accounts not being year 2000 As early as 1979, any large describing the problem in the compliant. The committee urged financial institution involved in computer trade press. In short, members to take all necessary mortgages of 20 years’ duration the computer industry – and steps to ensure compliance, even would have been aware of the indeed the larger financial Dumb and at that late stage. problem. There are even indica- institutions such as banks and dumber There is, of course, still a very tions that the problem came to insurance companies – would A bottle of the finest champagne will real danger of accounts being light as early as 1969, particularly have been aware of the problem go to the reader who sends in the fun- disrupted and massive in insurance companies dealing for well over 15 years. niest contribution to the Dumb and inconvenience caused. There is dumber section each month. also a consequent danger of Send your examples of the wacky, litigation against a firm should a weird and wonderful to the Editor, client suffer loss arising from Law Society Gazette, Blackhall such a system failure. If the Place, Dublin 7, or you worst happens, what can be can fax us on 01 672 done? Perhaps more than you 4801, or e-mail us at might think. All the available [email protected] evidence points to a long- standing aware-ness within the

6 Law Society Gazette Jan/Feb 2000 Letters

In the circumstances, law firm was notified by a therefore, there was really no supplier that it had a non- Gallic versus Gaelic? excuse for the supply of compliant telephone accounting defective systems in recent system and that the supplier From: Maresa Wren, Galway years. If loss arises from such could install compliant software ith reference to Patrick systems, it is very possible that a for $2,000. The firm has asked WO’Connor’s last person affected will have a the court to declare that the President’s message (November, stateable case leading to redress. supplier had a duty to keep the 1999), I agree that the Even more invidious is the equipment in working order and compulsory teaching of Irish practice of some systems to provide year 2000 upgrades failed miserably. However, I suppliers suggesting that free of charge. The firm is also believe that this is a separate compliant systems and upgrades asking the court to order issue from the one of whether be installed – and charging for reimbursements for customers or not Irish solicitors should these installations. who have purchased upgrades. have the capacity to practise There is much on-going This case is on-going. through the medium of Irish. litigation on this topic in the An action has been brought Mr O’Connor used his United States. in Iowa by hospitals alleging important last message to In a class action in Texas, a that a healthcare information inform us that he thinks that court has given preliminary system purchased in 1995 is not it is simply wrong for approval to a settlement giving year 2000 compliant, that the solicitors to be required to users of a computerised defendant concealed the fact have a competent knowledge accounts system a year 2000 that it was not so compliant and of the Irish language. How compliant upgrade at no cost. that it lacked the financial can it possibly be wrong for It is also intended that those resources to correct the year Irish solicitors to be required who have already paid for an 2000 deficiencies and defects. to be competent in the Irish why not? There is surely as upgrade will get certificates The plaintiffs are pleading fraud language? Mr O’Connor calls much demand in Ireland for redeemable against the and concealment, negligent on the Government to change Irish-speaking solicitors as defendant firm for other misrepresentation, duty to warn its policy, but what of the there is for French or products. Causes of action and negligent design/marketing. Law Society’s policy? For German speakers. In fact, as I included breach of implied They are seeking actual and example, the Law Society write, there are two warranty or merchantability, exemplary damages. provides access to courses in advertisements in the papers unfair or deceptive practices, The results of the numerous legal French and German but seeking Irish-speaking and misrepresentation, fraud US cases should prove to be of I am unaware of any courses solicitors and, as far and deceit. considerable interest in this being provided by it in legal as I am aware, none seeking In another case, an Alabama jurisdiction. Irish. Are there any? If not, French or German speakers. CONTINUING LEGAL EDUCATION SPRING SCHEDULE 2000 THE BUDGET FROM A LEGAL PERSPECTIVE Castletroy Hotel, Limerick 11 February Hodson Bay Hotel, Athlone 22 February Great Southern, Galway 29 February THE PRINCIPLES OF PRACTICAL DRAFTING OF DEEDS IN CONVEYANCING TRANSACTIONS Blackhall Place, Dublin 17 February LAND REGISTRY Hodson Bay Hotel, Athlone 21 February Fitzpatricks Hotel, Cork 30 March MEDICAL NEGLIGENCE Blackhall Place, Dublin 24 February NEW HOUSES Great Southern, Galway 28 February MONEY MATTERS Hodson Bay Hotel, Athlone 13 March TRIBUNALS OF ENQUIRY Blackhall Place, Dublin 13 March FRANCHISING Blackhall Place, Dublin 28 March EMPLOYMENT EQUALITY ACT, 1998 Blackhall Place, Dublin 29 March PLEASE NOTE: 18 FEBRUARY IS THE FINAL DATE FOR RECEIPT OF COMPLETED CLE QUESTIONNAIRES (SEE DECEMBER ISSUE OF GAZETTE). QUESTIONNAIRES RECEIVED AFTER THAT DATE WILL NOT BE INCLUDED IN THE DRAW FOR £500 WORTH OF CLE SEMINARS IN 2000 For further information, please see CLE brochure enclosed with this month’s Gazette or telephone the CLE department at 01 672 4802 or fax 01 672 4803. Suggestions for CLE seminars are always welcome.

7 Law Society Gazette Jan/Feb 2000 Viewpoint Cyberspace and defamation Internet service providers are not like newspapers and should not be held accountable for the information they publish, writes Niamh Herron

ith worldwide roots and make anonymous telephone culpable party who posts Wno centralised authority, calls and send unsigned letters. defamatory messages would many people consider the Following the Stratton escape accountability. But it Internet the last free marketplace decision, the Communications may be impossible to identify of ideas. On-line activists and Decency Act 1996 was enacted in the original author of a civil libertarians constantly fight the United States to protect statement which is published on to keep the Net free of all con- ISPs such as Prodigy from a bulletin board on the Net, as straints in the belief that regula- similar actions. Section 230 of anonymous re-mailers are tion threatens to curtail its the Act provides that: ‘no available which remove expansion by imposing formida- provider or user of an anything which might identify ble civil and criminal liabilities interactive computer service the author of a particular for negligent or allegedly illegal shall be treated as the publisher statement. Indeed, the author of on-line activities. or speaker of any information the offensive statements in The decision of the New York Niamh Herron: On-line access provided by another Stratton remained unidentified. Court of Appeals in Lunney v providers are the ‘deep pockets’ information content provider’. In any event, on-line access Prodigy Services Company (2 No of cyberspace litigation providers are in essence the 164, NY State Court of Appeals), Federal immunity ‘deep-pockets’ of cyberspace delivered on 2 December last, is obscenities and other By its plain language, section and so the focal point in such welcome in that it may serve to undesirable statements. Thus, 230 creates a federal immunity litigation to date. curtail the onslaught of litigation the court decided, Prodigy to any cause of action that The decision in Lunney is which ultimately has the exercised sufficient editorial would make ISPs liable for eminently practical, otherwise potential to plague the Internet control to render it a publisher information originating with a every ISP would be placed industry. In its first major ruling with the same responsibility as a third-party user of the service. under an obligation to make on privacy and defamation in newspaper. Interestingly, in Specifically, section 230 itself aware of the contents of cyberspace, the Court of spite of Justice Ain’s decision in precludes courts from every message posted on its Appeals unanimously held that an Stratton, the plaintiff agreed to entertaining claims that would computer network. It would be Internet service provider drop its lawsuit against Prodigy place an ISP in a publisher’s altogether unreasonable to (ISP) is merely a conduit for in return for an apology from role. So lawsuits seeking to hold demand so near an approach to information, as opposed to a the company. an ISP liable for its exercise of a omniscience. The decision will publisher, and consequently In my opinion, the court’s publisher’s traditional editorial further encourage growth no more responsible than a decision in Stratton was flawed functions – such as deciding within the Internet community telephone company for defama- insofar as it likened an ISP to a whether to publish, withdraw, by reducing the threat of tory material transmitted over newspaper. A newspaper is postpone or alter content – are liability to on-line access its lines. more than a passive receptacle barred. None of this means, of providers. Lunney allows such This ruling is viewed as one or conduit for news and course, that the original companies to exist in a worry- of the most significant New York comment; a newspaper exercises free environment with respect court decisions on Internet issues a high degree of control of its to liability for information since Stratton Oakmont, Inc v final product with respect to ‘America Online is like appearing as a result of their Prodigy Services Co (1) (No 94- editorial judgements and a private pool, and the electronic transmissions. 031063, 23 Media L Rep (BNA) ultimate content and size. With Internet like the ocean Significantly, the court in 1794, NY Sup Ct) in 1995. In this increased editorial control across the street ... At Lunney evaluated the plaintiff’s this case, a Nassau County Court comes increased liability, and the pool, lifeguards can claim in the context of existing of First Instance held on motion rightly so. But a significant be stationed and control tort precedents and found that by the plaintiff that Prodigy had distinction between a established, but once the ‘these settled doctrines sufficient editorial control over newspaper and an ISP is the public crosses the street accommodate the technology the content of messages posted identity of the contributors, to the “vast sea of comfortably’. Of course, the on an electronic forum and so which in the case of a information” on the other court’s reluctance to get was liable for potentially libellous newspaper are identifiable with side, there is no more involved in the Communications statements made by one of its their services (which are usually control’. Decency Act debate leaves users. It emerged during the trial contracted for and paid for) but unanswered the question of that Prodigy employed personnel in the latter case could be William W Burrington, whether ISPs are free from to monitor the contents of its innumerable and anonymous. Assistant General Counsel liability under US federal law. bulletin boards and to delete We have the ability to send and Director of Government And there is still the question of unacceptable messages. It also anonymous computer messages, Affairs, America Online whether an ISP has complete used software to screen out just as we have the capacity to immunity for anything that

8 Law Society Gazette Jan/Feb 2000 Viewpoint

happens on its system, but so responsibility should lie for It is to be hoped that Irish effect on speech and the flow of far no court decision has come defamatory statements. It could courts will borrow American information, consequently down on that issue. be argued that our current legal precedent and treat on- stunting the growth of Ireland has yet to make any framework of laws is sufficient to line communication akin to a electronic communication. legislative efforts to tame the address these questions because common carrier such as a This would be a tremendous seemingly untameable on-line they do not present new legal telephone company, in which loss for society. G universe. It is only a matter of issues: cyberspace defamation case liability would rarely be time before our courts will have cases are indistinguishable from imposed. Needless to say, the Niamh Herron is a solicitor in to decide whether cyberspace cases arising in the traditional task of defining the liability of Dublin solicitors Lennon Heather defamation cases should be print and broadcast media and ISPs must be approached in a & Co. Last year she passed the treated the same as defamation therefore can be decided by sensitive manner because the New York State Bar Examination cases that occur in a non- using the same analysis (proving imposition of accountability on and is currently pending admission cyberspace context – and where the elements of defamation). ISPs could result in a chilling to the New York State Bar. Shaping the Supreme Court Isn’t it time we debated the secret selection process that lies behind Supreme Court appointments?, asks Pat Igoe n his memoirs, US President qualities of competence and IRichard Nixon wrote that he honesty, obviously. But how considered his four appoint- much thought is given towards ments to the Supreme Court as developing a broad strategy or among the most constructive and ethos for the higher courts? far-reaching of his presidency. It is at least questionable Closer to home, and despite the whether sufficient attention has obvious differences, Bertie Ahern been paid by successive has a similar opportunity. governments to the role of the Nixon had a particular vision Supreme Court and to the of what he wanted from his significance of its role in Supreme Court nominees. interpreting legislation. It is People with personal qualities of questionable because we do not competence and some know. And we do not know knowledge of the law, of course – ‘A clear message from the Four Courts: the arrogant use of power by the because of the secrecy in but there was more. Those Government and civil service would no longer be tolerated’ decision-making. The selection appointed would share his process for a crucial tier of conservative judicial and, indeed, compared with the other two judgments from the higher government in this democracy political, philosophy. wings of government, the benches would suggest that the remains private. In Ireland, as in the United Executive and the Oireachtas, system does work. A debate would at least seem States and most countries around belies its influence on everyday healthy on the moral, political, the world, the role of the highest events. This applies particularly Selection criteria economic and social directions court in the land is hugely to the Supreme Court’s But what is the system? that the Government expects the significant for citizens. Judges interpretation of the Appointments to the bench now Supreme Court to aspire to. The traditionally distance themselves Constitution and of laws. go through the Judicial Supreme Court does have a from politicians and political If commentators can agree on Appointments Advisory Board. collective ethos, direction and debate and also from their anything, it is probably that we The board draws up a list of attitude – even if by chance. former work colleagues. have tended to get a better people for each appointment Once appointed, there can be Impartiality, and the appearance judiciary in this country than we based on their meeting the no political interference with of impartiality, are important. deserve. There are no formal statutory requirements of the judges. It is arguable that it is The press release by former open or closed hearings to select positions and on their general important that the Government, Chief Justice Hamilton last April candidates for office. The suitability. But it is not the which nominates appointees, announcing the appointment of criteria and requirements, function of the board to adopt a should have a sense of what is a judicial complaints committee beyond the statutory policy for the candidates in terms required individually and was in itself an unusual media requirements, remain vague. Yet of their views on economic or collectively. This is particularly event. charges of political favouritism social matters. apposite now when four of the But solicitors and barristers, in by judges or of cronyism are What does the Government eight seats on the Supreme Court particular, know that the low virtually non-existent. As we saw want from its Supreme Court are at the Government’s bidding profile of the judiciary among last year, there can be no hint of nominees? And what should the in the first few months of this the population at large, when suspicion. The quality of Government want? Personal year.

9 Law Society Gazette Jan/Feb 2000 Viewpoint

Apart from former Chief crew from the then Department justice. Many of the recom- Justice Hamilton and Kevin of Posts and Telegraphs, gave mendations have already Lynch, who retired last year, Mr ‘If commentators can both judges another important reached the statute book. Justice Barrington and Mr agree on anything, it opportunity to further the rights One of the most high-profile Justice Barron are also due to of the citizen under the recommendations relates to retire in the immediate future. is probably that we Constitution. Up to then, it had judicial conduct and ethics. As if this was not enough, Mr have tended to get a been believed that the immunity Former Chief Justice Hamilton Justice Murphy is 69 years old from legal action enjoyed by the moved without delay to and may also retire before he better judiciary in British Crown had transferred announce the establishment of a reaches his 72nd birthday, this country than we to the new Irish state. For the committee to ‘contribute to giving the Ahern-led first time, less than 30 years ago, high standards of judicial Government (if it is still in deserve’ the State became liable for conduct’. office) a fifth nominee on the negligent acts of its employees. But a significant number of Supreme Court to influence The decisions of the statutes and sections of statutes public policy for long after its Supreme Court have kept pace that govern us today are term of office has ended. examination of what the with changes in Irish society probably unconstitutional – Like politicians, judges also Constitution meant. More than since then, more or less. In the if the success rate of legal might be said to lead from the 30 years on, their decisions immediate aftermath of his challenges is a benchmark. We front or the back. Learned continue to be cited in legal retirement, even his detractors do not know until they are statements from the bench argument. Many politicians and agree that Hamilton’s period as challenged by somebody who affirm that the Constitution is a civil servants were not unhappy Chief Justice was a success. The is sufficiently wealthy and living document. It is not when O’Dalaigh decided in Hamilton-led Supreme Court sufficiently aggrieved – as we expected to be frozen in time – 1972 to go the European Court was highly respected. know from the recent tribunals- in this case, 1937. It may be, in Luxembourg. Among its more memorable inspired constitutional indeed it must be, interpreted in And the initiatives of the decisions, of course, is McKenna challenges. In furtherance of accordance with the prevailing O’Dalaigh-led Supreme Court v An Taoiseach and Others, which their declarations to ‘uphold the culture and norms of society. did not end with the affirmed equality before the law Constitution and the laws’, what On 16 December 1961, two appointment of Tom as a fundamental tenet of prevents judges from initiating distinguished jurists took office O’Higgins as Chief Justice. A justice. In curbing the excesses an examination of the cons- in the Supreme Court. They clear message was emerging of the Government in spending itutionality of a statute or would lead from the front for from the Four Courts: the public money disproportionately section? 11 years, and the effects of their arrogant use of power by the in seeking a ‘yes’ vote in the Whether the Supreme Court stewardship in enhanced rights Government and civil service divorce referendum, Hamilton should be conservative or and liberties for the individual would no longer be tolerated, said that this was ‘an inter- liberal, favour the individual or citizen remain into the third whether in the unfair dismissal ference with the democratic the State, or mirror Irish society millennium. Cearbhaill of a Garda Commissioner or of process and the constitutional rather than pushing the O’Dalaigh’s tenure as Chief an ordinary soldier. ‘Natural process for the amendment of frontiers outwards, could be Justice and Brian Walsh’s justice’ had become a lot more the Constitution and infringes matters for debate rather than appointment as an ordinary than a dusty legal term. the concept of equality which is chance. This country has judge of the Supreme Court fundamental to the democratic arguably enjoyed a better ushered in a golden age of O’Dalaigh’s last judgment nature of the State’. judiciary than it deserves. In last liberalism in the court. The last judgment of The six reports of the month’s appointments, the Both men set about curbing O’Dalaigh’s court in 1972 ruled curiously-named Working Government appears to have arrogant and arbitrary use of that an individual could sue the Group on a Courts Commis- made a good start. G power by the State, including State. Kathleen Byrne’s sion, which was chaired by Ms Government Ministers and the accident outside her home, Justice Denham, have provided Pat Igoe is the Principal of Dublin- gardai, against individual when the path fell in as a result a welcome and highly-regarded based solicitors’ firm Patrick Igoe citizens. They began an earnest of work done by a cable-laying boost to the administration of and Company. LEAVE IT TO THE EXPERTS! SHELFSHELF COMPANYCOMPANY NOWNOW £160£160 THE LAW SOCIETY’S COMPANY SERVICE, BLACKHALL PLACE, DUBLIN 7 FAST • FRIENDLY • EFFICIENT • COMPETITIVE PRICES • MEMBERS OF EXPRESS SERVICE PHONE CARMEL OR RITA ON 01 672 4914/6, EXT 450 (FAX: 672 4915) • Private limited company – ten days, £150 • Single member company – ten days, £150 • Guarantee company – ten days, £98.40 • New companies, using complete nominees – • Shelf company – ten minutes, £160 ten days, £165

10 Law Society Gazette Jan/Feb 2000 Viewpoint Are we all to blame for the litigation boom? Dr Ubaldus de Vries argues that the perceived growth in personal injury litigation can’t simply be pinned on doctors or lawyers: society itself must take some of the blame

rofessions emphasise the Our risk society is facilitated and loss is not enough. The Pnotion of ethical behaviour. by the extension of liability into doctor must be found negligent. This is reflected in the codes of categories not previously It also means that the decision practice drawn up by covered, by growing consumer to initiate an action in professional associations. It awareness, and by the vested negligence against a doctor implies that the nature of the interests of certain parties must not be solely based on the professional relationship is not (insurers, doctors and, yes, existence of injury and loss limited to the implied and lawyers). These are not alone. express contractual necessarily negative factors, Lynch J, who gave the responsibilities mirrored in such though it does now appears that leading judgment in the a relationship. Rather, the the system may be open to Supreme Court, dismissed the professional owes a public duty abuse. So in a way plaintiffs appeal and questioned the that overrides his duty to the (either in good or bad faith) are manner in which the plaintiff’s client or patient and is the helped by the systems we have lawyers had presented the case. expression of his commitment to put in place. It would be very ‘The professions have an over- He pointed to the fact that the the ethics of responsibility. difficult in this environment for riding public duty to combat bogus expert witness for the plaintiff So how do we explain the plaintiffs to show restraint and claims’ was the plaintiff’s solicitor’s GP, perceived boom in personal to make moral judgements on who had seen the patient once, injury cases in recent years? It whether to initiate a personal The defendants agreed that, just prior to the hearing in the would be easy to give out about injury claim. had the stitches been sewn too High Court. He also stated that the medical and legal tightly, this would amount to there must be some credible professions and their vested The role of doctors and negligence on their part. evidence to support the interests, blaming them for the lawyers in medical negligence However, the doctors denied plaintiff’s case that the abuse of personal injury A recent Supreme Court that they were. After the first defendants’ conduct was the litigation. But to do so would be decision in a medical negligence stitches had fallen out, the cause of the injuries suffered unjust and would fail to case illustrates how the system second-named defendant, a and that they might be guilty of recognise the positive can be open to abuse – but also consultant doctor, had examined negligence before such an contributions by, and the highlights the role of the the patient but had not found action could commence. Such importance of, these doctors and hospital anything unusual. He stated that grounds were absent in the professions. management (the defendants) stitches would fall out present case. On a wider social and and their lawyers. occasionally without any Denham J added that in the philosophical basis, perhaps we In Cooke v Cronin and Neary particular reason. It was absence of any reasonable should ask ourselves whether we (Unreported, Supreme Court, something that doctors were not grounds, it would be are not all to blame, as 14 July 1999), the plaintiff had really worried about. An expert irresponsible on the part of the participants in this ever-evolving given birth to a healthy baby in witness of 35 years’ standing plaintiff’s lawyers to proceed. It society? Do we not live in a a hospital in Drogheda. The supported this opinion. would amount to an abuse of ‘risk’ society? We do, but not in episiotomy cut needed to be The trial judge in the High the process of the court and a society where, as was believed stitched, as is usual. A hospital Court dismissed the case, and would be ‘detrimental to [a in previous times, ‘man acted at doctor did this. Some of the the plaintiff appealed. doctor’s] professional reputation his own peril’. Rather, we live in nylon stitches inserted in the and practice’. It would instil in a a risk society where all risks (or outer skin fell out on separate Cause and effect doctor an unnecessary fear that at least most of them) are occasions prior to the date they The increasing rate in personal his conduct could be examined insured. This has led us to were scheduled to be removed. injury litigation, in particular in open court in the absence of believe that, as victims of It was in relation to these events with respect to medical any reasonable grounds, even personal injury, we can look for that the plaintiff initiated negligence, appears to suggest though the patient had suffered someone else to blame for life’s proceedings. She claimed that that the mere suffering of injury injury. Such a fear might have a misfortunes, rather than taking the stitches were sewn too or loss is sufficient to warrant an detrimental effect on the responsibility for our own tightly. This caused them to fall action in negligence against a provision of healthcare actions and taking the loss on out and caused tenderness and doctor. But a mere causal generally. the chin. discomfort. connection between conduct On the other hand, though,

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Denham J also referred to the not always be easily obtained, so expert witnesses or as responsibility of hospitals and the plaintiff’s action against the defendants. In the capacity as doctors in the event that a ‘We live in a risk defendants may have been defendants, fear of litigation patient has suffered injury as a society where all compounded by a lack of should not deter them from result of medical treatment, communication on their part taking action where a patient has regardless of whether the risks are insured. for the very purpose of avoiding suffered injury as a result of treatment was caused by This has led us to such action. medical treatment. negligence or not. It was quite The cynic would react to this clear that the patient had believe that, as A double-edged sword by pointing to our changing suffered injury. In court, she victims of personal So the knife cuts both ways. To society: the commercialisation of gave evidence that her condition combat bogus claims and – healthcare, the growing gap was painful, that the scar was injury, we can look perhaps more importantly – between public and private unpleasant and cosmetically for someone else to unnecessary claims, both the health provision, and the unacceptable. She also legal and the medical lucrative business of personal complained of urinary and blame for life’s mis- professions have an overriding injury litigation for lawyers and, bladder difficulties, and fortunes, rather than public responsibility. Keane J in arguably, insurance companies. menstrual problems. The High the Cooke case reminded lawyers The latter appears to dictate the Court judge had stated that she taking responsibility in particular of the ‘serious process of personal injury cases. ‘might be better advised to seek for our own actions responsibility’ they have in the The cynic might also argue that a remedy with a medical ‘institution and conduct of the legal and medical professions’ authority and it might have been and taking the loss proceedings for negligence public responsibility is eroded by helpful if she had pursued that on the chin’ against professional persons’. these factors. If he is right, it option from the outset’. In other Indeed, one may argue that may mean the end of the true words, she should have sought lawyers have generally a serious nature of the professions. G medical help elsewhere. Denham information should be made responsibility in the institution J added that the patient did not available and not excluded on and conduct of proceedings for Dr Ubaldus de Vries is a law seem to be in a position to do so unreasonable grounds founded negligence against any person. lecturer at Dublin City University because of the lack of on commercial considerations A similar responsibility lies on Business School. This article is communication and information or for insurance purposes. In the shoulders of the medical based on his paper to the from the hospital. She regretted strong terms, she referred to profession and hospital Conference of the Irish Association this, saying that relevant the fact that information may management, in the role of of Law Teachers last November.

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13 Law Society Gazette Jan/Feb 2000 Cover story

It’s often said book is like a child’, observes include Daly’s current venture, FirstLaw, which is solicitor and author Robert devoted to on-line and CD-ROM publishing, Oak that everybody Pierse. ‘There’s the undeniable Tree Press, a professional business book publisher has a book in satisfaction of having it – but which produces legal titles with a business slant, and also the struggle to raise it and Blackhall Publishing, which also has a business them – and ‘A keep it going’. The senior partner at Pierse & emphasis, although it publishes books strictly that’s probably Fitzgibbon in Listowel, who has penned two targeted at lawyers under the Inns Quay imprint. volumes, including Quantum of damages for personal where it should injuries 1999 (Round Hall), also makes a less positive Striking the deal stay. But an analogy: ‘A book is like a disease that afflicts you. Agents – and, unfortunately, advances – You have to get it out of your system’. are basically non-existent in the increasing Giving birth and battling disease are laudable Irish market for law texts. A first- number of Irish endeavours – but not to be entered into lightly. So, time author will generally earn too, is the process of writing a law book, according 10% of net sales, though solicitors are to authors and publishers alike. It isn’t just a matter that figure can be as low putting pen to of expertise in your chosen topic: successful authors as 7.5%, while an know the publishing marketplace, carefully pick established writer paper to share their target audience and, of course, display a knack might take in their expertise for the written word. 15% of net Until the 1980s, there were only a handful of sales. with their publications devoted to Irish law. ‘Practitioners and colleagues. So students alike had to content themselves with English materials’, says Tom Courtney, a solicitor- what does it author who heads the legal department at the ICS take to become Building Society. The first reason for this lies in our history: since a legal author, Ireland inherited its legal system from Britain, and can you initially it wasn’t such a bad idea to rely on British sources. ‘As the state evolved, though, it became expect to increasingly dangerous to rely on those texts’, says retire on your Catherine Dolan, commissioning editor at Round Law Hall Ltd, which is affiliated to the London-based publishers royalties? publishing giant Sweet & Maxwell. tend to be Maria Behan The second reason for the dearth of home- conservative grown law books was economic. ‘Multinational when it comes breaks the bad publishers believed there was no money in small to print runs, news jurisdictions’, according to Bart Daly, who especially for an heads FirstLaw Publishing. ‘And since Ireland author’s first effort. was a small jurisdiction, they treated it as an Initial runs can be as add-on to the UK market’. Daly became low as 500 copies (though the main instigator of Irish legal reprints are common if a publishing in 1981 when he founded title sells well), while books Round Hall, which was with broader appeal may have first then an independent print runs of 1,000 to 1,500 copies. company. ‘Round Hall ‘In Ireland, you’re still looking at sales showed there was a market of 1,000 to 2,000 volumes for an average law for legal publications in book’, says David Givens, general manager of Ireland, and the industry Oak Tree Press. But he points out that law mushroomed’, books are priced higher than most others, so he says. the royalties are higher as well. ‘You don’t need British publisher to sell quite as many as other types of books to Butterworths see a decent return’, he says, though he’s quick became another to add that money isn’t the primary reason that major player when members of the legal profession write books. it set up an Irish ‘Financially, writing a book is a total division in 1988. disaster’, says Robert Pierse. ‘You don’t even Newer companies recover your typing costs’. And Tom Courtney with smaller pieces observes that ‘the direct financial rewards for of the legal market writing a law book will never recompense you

14 Law Society Gazette Jan/Feb 2000 Cover story

The writewrite for the labour that goes into it’. So why have so many solicitors been bitten by the writing bug (including Courtney, who edits and occasionally writes for the journal Commercial law practitioner and has penned four books, including Mareva injunctions and related interlocutory orders (Butterworths, 1998)? ‘As a practitioner, it’s stuff! exceedingly difficult to stay on top of one’s subject without being involved in on-going research’, he explains. ‘For me, the most expeditious way of referred to by their titles, but by the author’s name. staying current is by researching and writing, so I ‘That fact is telling’, she says. ‘It shows that in the decided to get the most from what I was doing by legal field, the author’s expertise is considered the publishing my work’. most important thing – and that the author has Dermot Cahill, solicitor and lecturer in law at earned considerable respect’. UCD, says that he decided to write his book Corporate finance law (Round Hall, 2000) because How the publishing process works there was no text in the area. ‘This was a way to Like other publishing professionals, Dolan makes make a contribution to scholarship and the the initial contact with some of her authors, while dissemination of legal knowledge’, he says. others come to her. ‘If solicitors ring me up with a McCann FitzGerald solicitor Michael O’Reilly great idea, I’ll send them a short form to fill in so I reports that the book he co-wrote on environmental can get a better sense of the idea they’re proposing, law grew out of material prepared for seminars, the market they’re aiming at, and what they plan to which he feels is a fairly common beginning for a include in the book’, she explains. legal tome. And what made all the work that goes David Givens outlines the elements of a thorough into a book worthwhile? ‘Having contributed to proposal: ‘The more information, the better’, he something which is actually used on a daily basis is says. ‘You always want a one-page description of the satisfying’, he says – then adds with a laugh: ‘that book and, if possible, a detailed table of contents, •Writing and finishing the thing in the first place’. with chapter headings and descriptions of the a book In some cases, writing a legal textbook can material covered in each chapter’. Other items on involves further a solicitor’s career, increasing promotion his wish-list are a description of the market and its enormous prospects within an organisation as well as the size, why that market will be driven to buy the time com- likelihood that he or she will be appointed to book, the author’s qualifications, and a target date mitments professional and governmental bodies. ‘If you’re an for completion of the manuscript. • Don’t expert in a certain area, writing a book helps cement Winning a book contract also depends on having expect to your reputation and make you a recognised expert’, a way with words. ‘If we like someone’s book idea, make much comments Oak Tree’s David Givens. ‘It enhances we’ll ask them to prepare a draft chapter in order to money •Targeting reputations – and I suppose it can bring in more ensure that they can actually write’, says Louise the right clients as well’. Leavy, managing editor (law) at Butterworths. readership Round Hall commissioning editor Catherine ‘Some people have a lot of knowledge but they’re is crucial Dolan points out that legal books are seldom not good at conveying it on paper’. MAIN POINTS

15 Law Society Gazette Jan/Feb 2000 Cover story

If solicitors prove as adept at expressing ideas as they are at formulating them, the chances are they’ll TRICKS OF THE TRADE be offered a book contract. ‘Authors, especially if The road to completing a successful law book is they’re solicitors, shouldn’t just accept the terms willy- long and fraught with peril. Here, some authors and nilly’, warns Dermot Cahill. ‘They should negotiate editors offer tips for the trip them, just as they’d negotiate a transaction on behalf of clients. Your book is valuable intellectual property, ‘Make your writing clear. Use shorter sentences so you should seek the most favourable terms possible and if you have to use jargon, explain it. from your publisher’. Footnotes are very important in legal texts, since The hard part comes once the contract is signed. they allow you to avoid clogging up the text with Finding the time to write the book is probably the minutiae. Lawyers are used to writing letters for toughest aspect for solicitor-authors. Cahill spent four their clients in very obtuse language. The danger years on Corporate finance law and says that’s not very is that they might carry that into their legal long, considering his subject matter. It would have publishing. When you’re writing a chapter in a ‘Financially taken him far longer, he adds, if he was a practising book, you’re not giving a legal opinion, you’re describing the law. That’s very different’. writing a book solicitor rather than an academic. Tom Courtney admits he finds it difficult to carve out writing time Dermot Cahill, UCD is a total from a busy schedule. ‘One would almost think it’s ‘Be practical: people want useful information. The law disaster. You impossible, in view of the demands of simply getting through the working day’, he says. And Robert Pierse, obviously has its philosophical and moral aspects, but don’t even who estimates that his first book took him more than the real demand is for information that helps solicitors stay abreast and conduct their business’. recover your two years to write, working about 15 hours a week at nights and weekends, sounds like a veritable speed Elanor McGarry, Round Hall typing costs’ demon. McCann FitzGerald’s Michael O’Reilly says that collaboration was the key to getting through the of legislation and happily each of us has a good sense massive amounts of work behind Irish environmental of humour – because you either laugh or you cry. legislation (Round Hall, 1999). He worked with two Sometimes we still think that the laughter was co-authors, fellow solicitors Barbara Maguire and bordering on hysteria’. Michael Roche, and says they received a good deal of Cahill feels that a research assistant could prove an help from others at the firm as well. ‘We wrote it over invaluable asset to a legal writer. ‘I’d like to see more many years, and the sheer volume of work involved publishers provide a budget to help with that, because was staggering’, he recalls. ‘Given our topic, we had to it means that the author can concentrate on getting cover or at least be familiar with practically every the substance of the book to the highest possible level piece of legislation that we could see having any while somebody else is dealing with proofing, connection with the environment. So there were consistency, and that sort of thing’, he says. hundreds of legislative enactments dating from the ‘Otherwise, you divert so many months to just last century until today. proofing, proofing, proofing’. ‘We used to come in very early in the morning The author’s toil doesn’t end with the delivery of about three times a week to work for a couple of the first draft. Round Hall’s Catherine Dolan hours, and we now look back at those sessions fondly’, estimates that it takes an average of six months from he continues. ‘We’d be going through obscure pieces manuscript delivery to the bound-book stage. During LEGAL PUBLISHING: THE MAIN PLAYERS Blackhall Publishing and Inns Quay. Blackhall North Brunswick Street, Dublin 7, prints law titles with a business slant; the affiliated tel: 01 807 2400, e-mail: [email protected], Inns Quay imprint handles other legal books. website: www.firstlaw.ie Contact: Gerard O’Connor, 26 Eustace Street, Dublin 2, tel: 01 677 3242, e-mail: Oak Tree Press. Prefers titles with a business [email protected] rather than strict legal emphasis. Contact: David Givens, Merrion Building, Lr Merrion Street, Dublin Butterworths. Produces a wide range of legal 2, tel: 01 676 1600, e-mail: [email protected] titles. Contact: Louise Leavy, 26 Upper Ormond Quay, Dublin 7, tel: 01 872 8514 Round Hall Ltd. Publishes an extensive array of legal books. Contact: Catherine Dolan, 43 FirstLaw Publishing. Focuses on electronic Fitzwilliam Place, Dublin 2, tel: 01 602 4815, e- publishing. Contact: Bart Daly, Richmond Campus, mail: [email protected]

16 Law Society Gazette Jan/Feb 2000 Cover story

be marketable, especially specialist areas such as take- overs and mergers. She singles out conveyancing and ‘If you have a legal speciality you really care about, criminal law as hot topics, and says the Irish market stick with that. Interest is what keeps you going’. could use a criminal-law bible, such as Archbold in the Robert Pierse, Pierse & Fitzgibbon UK. According to Round Hall’s managing director ‘I would listen carefully to my publisher and be guided Elanor McGarry, one can look to the changes in Irish by them as to whether they believe a book will fill an society to gain an insight into the kinds of legal books existing lacuna in published material. If there are 15 that will be popular now and in the future. ‘Family law books on a particular topic, it’s not necessarily the is a key area’, she says. ‘And there have been many case that the market needs a 16th. Still, the fact that changes in the legal profession driven by the economic a topic has been written on in the past ought to be no Tom Courtney: ‘The high boom’. In this regard, she cites the environment, absolute bar if you believe you can bring something to point comes when you get planning and construction. the area that has not been addressed before’. the first copy of the book’ McGarry feels that the rise in demand for specialist Tom Courtney, ICS Building Society law books reflects a change in solicitors’ career patterns. ‘Several years ago, the majority of solicitors ‘The publisher’s contract tends to be all-embracing as worked in sole or dual-practitioner firms’, she to rights. I’d advise solicitors to look carefully at the observes. ‘Now firms are growing, and there are more copyright. If they want to give away the entire copy- practitioners in medium-sized firms than in small right, that’s fine. But if they foresee that the material ones. Solicitors who work in big and medium-sized could be channelled for another use by a different firms tend to be specialists, hence the increased publisher, they should hold on to the electronic rights’. demand for specialist publications’. Bart Daly, FirstLaw Publishing Besides target readership and topic, a third factor in the equation is the writer. ‘If the author is well- regarded in the legal field, that can generate this time, the author must be available to answer enthusiasm’, says Gerard O’Connor. ‘And if they’re queries that come in from the editor and, in some Elenor McGarry: ‘Increas- controversial, that can generate media interest – which cases, outside experts in the areas covered. The final ed demand for specialist helps to sell books’. publications’ hurdle usually comes when the writer reviews the final proof just before the book goes to print, which is his or 21st century publishing her last chance to fix any mistakes or add updates on Most publishers now see the digital world, and the recent cases or regulatory changes. Internet in particular, as the way of the future. And then there’s marketing. ‘Depending on the According to Elanor McGarry, Round Hall’s extensive nature of the book, we may ask an author to help with market research has revealed a sea-change in the marketing’, says Blackhall Publishing’s managing demand for electronic publishing. ‘In 1997, 20% of director Gerard O’Connor. ‘For instance, we recently those surveyed could use the Net, but in 1999 it was did a book on holiday law, and something like that, 80%’, she says. ‘That’s a four-fold increase in demand which appeals to travel agents and a broader audience, over just two years, which is phenomenal’. might attract the interest of a programme on RTÉ. It FirstLaw is already producing legal publications for also depends on the personality of the author: some are the Internet, and the other players in the field plan to keen to do it, others aren’t’. do the same. ‘It’s not a question of should we do it, David Givens: ‘You don’t but with what products’, says McGarry. ‘It’s probably need to sell as many to Keys to success the area that offers the greatest growth potential’. see a decent return’ So what makes one title more marketable than Butterworths’ Louise Leavy agrees: ‘The future another? One major factor is the target readership. ‘It definitely lies in electronic publishing. More and more depends on the nature of the book, whether it’s purely people have computers and expect to use them to get for practitioners or whether students might buy it as things quickly. It makes life easier if you can look well’, O’Connor explains. And more copies are likely things up on-line with search engines and download to be sold when a book has appeal outside the legal information. Because of that, I think the hardcopy field, for example, to human resource managers, book will die out a bit’. banking officials or, in the example he cited, travel Tom Courtney – along with many other writers – professionals. might be less than thrilled with that last prediction Another pivotal area is theme. ‘While a particular since it may deprive authors of the thrill of holding topic may be of great interest to an author, it may newly-minted books in their hands. ‘The highpoint of simply not have a commercial attraction’, says Tom the writing experience comes when you get the first Courtney. Louise Leavy says that books on company copy of the book from the publisher’, he says. ‘That’s law always do well, citing Courtney’s Law of private certainly way up there in any author’s life’. companies (Butterworths, 1994) as an example. So if you hope to experience that thrill, you’d better Catherine Dolan also feels that company law can go warm up your word-processor. G

17 Law Society Gazette Jan/Feb 2000 43 Fitzwilliam Place Dublin 2 Ireland Tel: (01) 662 5301 Fax: (01) 662 5302 DX: 109032 Fitzwilliam Email: info@round- hall.ie Topical insights and advice to improve performance Hot off the press...

Corporate Finance Law Dermot Cahill Judicial Review The Law of Banks and - newest addition to The Brehon This is the first work to examine the Credit Institutions Library legal framework for financing Mary Donnelly Conleth Bradley corporate activity from a variety of sources, public and private. It seeks In-depth analysis of the law relating A practical and comprehensive to place the legal issues in their to banks, building societies and guide to judicial review - the fastest business context and to fully credit unions - with special growing area of public law - with an explain difficult legal concepts, emphasis on managing today’s emphasis on facilitating making this a valuable text for online and electronic banking practitioners to implement the lawyer and non-lawyer alike. practices. judicial review procedure. Publication: December 1999 Publication: December 1999 Price: £93.00hb/£53.00pb At the printers...

Coroners: Practice and Criminal Liability Procedure Finbarr McAuley and J Paul Dr Brian Farrell McCutcheon

The first and only analysis of the A detailed analysis of the principles practice procedure of coroners in of criminal liability with the main Ireland. Practical in approach, emphasis on the way in which coverage includes functions of the criminal liability is actually managed coroner, reporting deaths to the by the courts. The principles of coroner, coroner’s enquiries, liability are scrutinised for internal procedures at inquests and special consistency and mutual compatibility. matters including quashing an CONTACT: inquisition, medical inquests and Pauline Ward Tel: 01 - 602 4812 Fax: 01 - 662 5302 PLACE YOUR ORDEREmail: [email protected] TODAY Interview Courting success

As Chief ■ Gazette: What will be the main changes that lawyers can expect to see over the coming months Executive of and years? the new Courts ■ Fitzpatrick: The big issue identified by the Working Group on a Courts Commission was the fact Service, PJ that the administrative and management arrangements Fitzpatrick is for the courts had virtually not changed at all since the PJ Fitzpatrick: foundation of the state. So the modernisation of the ‘I think there is a lot to be the man courts will take place on two levels: first, by putting in done – and charged with place professional management and administrative it won’t all arrangements and, second, in the whole area of be done dragging our information technology. The Government has overnight’ creaking courts approved an £11-million capital investment programme for IT, and planning for that is at an system into advanced stage. ■ Fitzpatrick: No, there hasn’t been any pressure the 21st Some 85% of all the court buildings in the state about any particular venues. Obviously, we are have now had IT cabling installed, so the infra- seeking very significant additional funding to century. Here structure is in place to link court buildings with each provide modern court facilities and to ensure that he tells Conal other, with the Courts Service headquarters, and with there are a reasonable number of venues, and that other bodies such as the gardaí, the prisons and so on. people have reasonable access. But on the other O’Boyle about In phase two of that development, we hope to hand, it would be very difficult to justify having new the work done provide facilities where users can their business court buildings five, six or seven miles apart, and electronically via the Internet. Indeed, in the not too maybe used once a month. We have to be able to to date and his distant future we hope to move to a situation where justify which venues will be upgraded and where we plans for the users can pay fees and send documents electronically. are going to spend the money. Of course, that will mean changes in court rules. In future any event, the Government has just launched its e- ■ Gazette: Would you envisage a decrease in commerce Bill, which will give people the right to the use of pubs and hotels as court venues? conduct their business with the state electronically. ■ Fitzpatrick: Well, if we’re talking about For us, that means we have to have facilities in providing accommodation which is modern, which courts where people can do that. Obviously it’s a bit provides the type of consultation rooms, meeting away yet, but that is the direction we are going in. rooms, privacy and dignity that ought to be Despite what the public impression might be, there’s a provided, then pubs, ballrooms and hotels are not lot of enthusiasm among judges and court staff for suitable and cannot continue long-term. information technology. ■ Gazette: So practitioners and the public can’t ■ Gazette: Another major issue to be addressed is expect an overnight change in their experience the very poor state of court buildings and of how they are using the courts? accommodation. When you took over, were you ■ Fitzpatrick: I think there is a lot to be done and surprised at how bad they were? it won’t all be done overnight. But the website is ■ Fitzpatrick: Yes, I was surprised that some of them there, practitioners can now access the on-line legal were as bad as they were. We estimate that it will take diary free of charge, some of the building projects about £200 million over the next five to seven years to have started and consultation with practitioners’ bring court accommodation up to a reasonable representatives has begun, so hopefully people are standard and to provide the sort of privacy and dignity beginning to experience some change. that the public and practitioners can reasonably expect We will be asking people to be patient because we in this day and age. are looking here at a five to seven-year programme to implement all of the recommendations in the ■ Gazette: Has there been any pressure to reports. But hopefully, quite significant and close rural courthouses around the country? substantial improvements will begin to appear on

19 Law Society Gazette Jan/Feb 2000 SOCIETY OF YOUNG SOLICITORS IRELAND (sponsored by Bank of Ireland Trust Services) THREE-DAY MILLENNIUM CONFERENCE 2000 (hosted by Northern Ireland Young Solicitors’Association) 24–26 MARCH at THE HILTON HOTEL, BELFAST www.sys.ie for further details

Friday 24 March NOTES: 13.00 – 15.00 Registration at Law Society House, Victoria Street. 1. Millennium Conference 2000 is being hosted and organised by Reception hosted by NI Law Soc President. Coach departs NIYSA. Delegates will attend from Northern Ireland, Ireland, Scotland, England & Wales and Member States of the European Union. Dublin 11.00 hrs SYS has been allocated a limited number of delegate spaces for solici- tors practising in Ireland. Irish solicitors wishing to attend this confer- 16.00 hrs Reception at Belfast City Hall ence MUST APPLY through the SYS. Demand will be high. The appli- cation procedure will be applied strictly. 20.30 hrs till late. SALSA NIGHT at THE EMPIRE 2. Belfast Jurys Hotel has been allocated to SYS for accommodation of Irish conference delegates (IR£130 pps). A small number of twin rooms may also be available in the Hilton and McCausland Hotels Saturday 25 March (IR£150pps). No single rooms. 10.00 – 16.00 hrs SEMINAR SESSIONS at THE HILTON 3. Irish delegates may opt for a return ticket on a coach, arranged by the SYS committee (IR£15 extra). The coach will depart Custom House Competition law: a European perspective. Damien Collins, Quay at 11.00 hours SHARP on Friday 24 March. Irish delegates Brussels BOOKED on the coach, MUST arrive at Custom House Quay not later European Commission and the regulation of e-commerce. than 10.30 hours, departing Jurys Hotel at 14.00 on Sunday 26 March. 4. Accommodation is limited and will be allocated on a strictly first- Mads Bride Andersen, Denmark come, first-served basis and in accordance with the procedure set out Regulation of the Internet. Dr David Taylor, Paris below. The implementation of the Good Friday legislation in Northern 5. The conference fee is IR£130pps for Jurys/IR£150pps for Hilton or Ireland. Prof Brice Dickson, University of Ulster McCausland and includes Friday and Saturday night accommodation, Association of Personal Injury Lawyers. Nigel Tomkins two breakfasts, two receptions, subsidised events, Salsa Night, lunch Recent developments in tort/negligence actions. Sean Doran, on Saturday, Gala Dinner and conference materials. No non-accommo- dation rate available. Queen’s University 6. One application form must be submitted per room per envelope togeth- Centre for Dispute Arbitration and Resolution (CEDAR). er with cheque(s) for the appropriate conference fee and coach and a Anthony Montgomery. self-addressed envelope. All applications must be sent by ordinary pre- A land law system for the 21st century. Prof JCW Wylie, paid post and only applications exhibiting a post mark dated 14 Cardiff University February or after will be processed. Rejected applications will be returned in due course. 7. Applications cannot be accepted without appropriate payment. Cheques 19.30 – 02.00 hrs Gala Dinner & Cabaret/Disco, Hilton Hotel. payable to SYS please. Names of Irish delegates to whom the cheque(s) apply MUST be written on the back of the cheque(s). Sunday 26 March 8. Cancellations must be notified to ‘[email protected]’ on or before 10 11.00 hrs Brunch and goodbyes. Coach departs Jurys 14.00 hrs March. Cancellations after that date will not qualify for a refund.

APPLICATION FORM Please use block capitals. One form per room per envelope.

Name 1 Name 2 Firm 1 Firm 2 e-mail e-mail One contact address

Phone (H) (O)

ACCOMMODATION IN JURYS HOTEL IR£130pps (HILTON/McCAUSLAND IR£150pps): Please tick ■ Double ■ Twin RETURN COACH: Please tick ■ 1 ■ 2 I enclose cheque in the sum of IR£260/300 plus IR£15/30 and I enclose self-addressed envelope. Application to the treasurer, SYS, PO Box 7255, Dublin 4. Interview

the building side, right across the country, very for consultation, and we are consulting with them. For quickly. projects outside Dublin, we consult with the local bar There is a lot of goodwill around. I’ve been to all of associations. So in areas where major innovations are the court offices around the country, met all the judges proposed, there will be on-going consultation with all and many local solicitors and barristers. I think of the user groups, particularly the user groups everybody wants to see it work, everybody wants it to representing legal practitioners. be successful and, of course, there are also huge expectations, which is understandable. People are ■ Gazette: So you won’t be springing any major looking for improvement. surprises on anyone? ■ Fitzpatrick: No, and hopefully we will ■ Gazette: It must strike you as being a bit like accommodate people’s views and wishes, but as you Mao’s Great Leap Forward, trying to modernise know it is very difficult to do that all the time. a 70-year-old courts system within five to seven However, we can certainly assure people that their years? views and suggestions will be very seriously taken into ■ Fitzpatrick: Yes, it’s a great challenge – for the account and, where at all possible, accommodated. board, for me as chief executive, and for the staff. But given the commitment and enthusiasm for the changes ■ Gazette: You’re trying to create a unified staffing that I’ve encountered at all levels, I’ve no doubt that it structure in the Courts Service. What could that will be successful. mean for county registrars who at the minute are largely recruited from the ranks of solicitors? ‘Court by its ■ Gazette: You’ve spoken about ‘demystifying’ the ■ Fitzpatrick: The county registrars are a key group court system and making it more ‘user-friendly’. and by virtue of their particular training and knowledge nature is What exactly do you mean by that? are in a position to very considerably contribute to the adversarial and ■ Fitzpatrick: There’s still a lot of misunderstanding development of the new Courts Service. I am currently about the courts among the general public. What we in discussion with them about the continued there’s very are hoping to do through things like the website and development of their role within the service. little we can information leaflets is to explain what the courts are, The changes in the Courts Service are affecting what they do, where they sit, the different jurisdiction everybody, not just any one particular group. The very do to change limits and so on. We are also hoping to provide fact that we were able to reach agreement with the that, but we information leaflets for the public and looking at unions representing the staff on such fundamental producing information videos on the courts for issues as promotion and methods of filling posts is can try to schools. indicative of the amount of goodwill there is – and create the A lot of people never use the courts – and for those people’s wish to be part and parcel of the new service. who do use them perhaps once in a lifetime, it can be a I think county registrars are every bit as enthusiastic to surroundings daunting experience. So we’re really trying to make contribute to that as any other group, and I’ve no doubt that will put people more aware of what to expect when they go to that our discussions with them will result in an equally court. Court by its nature is adversarial and there’s very beneficial arrangement for everybody – the Courts them more at little we can do to change that, but we can try to create Service, county registrars, the public and practitioners. ease before the surroundings, the environment, and provide the information that will put them more at ease before ■ Gazette: Are you happy with your budget they go in’ they go in there. allocation? ■ Fitzpatrick: Yes, I think the increase in the budget ■ Gazette: You’ve also suggested putting for this year will certainly meet the programme of work judgments on-line? that we have planned. Some of the increases are very ■ Fitzpatrick: At the moment we’re in discussion significant: for example, almost 100% for staff training, with the judges about that, and the intention is to start over 200% for the Judicial Studies Institute, 200% for with Supreme Court judgments and then follow that telecommunications and IT, and almost 60% for the up with High Court judgments and so on. What is building programme. But that’s not to say that we won’t critical there, of course, is that the judgments are need more next year. We will – particularly in the area available quickly, following delivery, because that’s of IT and building. These projects are at a when people want to access them. developmental stage, but we will need to spend a lot more next year because they will be further advanced. ■ Gazette: Have you been consulting the legal The increase in the budget for the Courts Service over profession about the more far-reaching changes? the last two years has been nearly 50% – that’s an ■ Fitzpatrick: Yes. For example, we have done up a indication of the commitment of the Departments of consultation protocol for all new court buildings and Justice and Finance. for the projects in Dublin. The Chief Justice and the presidents of the three court jurisdictions have ■ Gazette: And you’re confident they’ll continue nominated a number of judges who are available to us to give you the funds you need? on an on-going basis for consultation. Similarly, the ■ Fitzpatrick: Yes. We have no reason to believe they Law Society, the Bar Council, the gardaí and all the won’t. But it will be up to us to prepare the arguments other user groups have named people who are available to convince them that it will be money well spent. G

21 Law Society Gazette Jan/Feb 2000 Legal costs

Most solicitors are justifiably proud of the work they do, but some seem to forget that they deserve to be paid for it and leave the cost-gathering exercise to the end. Tony Halpin and Taxing Master James Flynn discuss the fundamental concepts behind legal costs and the importance of proper recording systems in a law firm Taxing

law firm is in business to provide legal incurred in litigation are directly governed by services and to generate an income. specified rules and adjudicated by a taxing master on This must be sufficient to attract and a taxation of costs. We shall look briefly at the rules retain professionals who will provide a of the game later, but first let’s consider the A superior, quality service to the client. importance of recording costs data and the part it While some services may not exactly be profitable, plays in billing a client. they may be seen as essential to the overall ethos of the firm. In this regard, loss leaders may be offered Recording costs data because of the potential work that could be A detailed costing of each individual file is important generated in the future or because the firm wishes to because the collection of the costs of all files provide the full range of services that should be ultimately underpins the measurement of a firm’s available to the legal marketplace. A classic example of this occurred during the early 1980s when • Detailed costings of each case are margins in conveyancing transactions were vital to a firm’s profitability somewhat depressed and those transactions were a •Time costs are only one part of the global information needed to constant drain on the labour resources of many firms manage a firm because of their acute time-consuming nature. But • The taxing master relies on few – except for some highly-specialised firms – information submitted to support could contemplate not providing such a service. the costs claimed According to Professor Milton Friedman of the • The party claiming costs must Chicago School, the purpose of a firm is to use its justify why they should be allowed resources and to conduct its activities in such a way • The party expected to pay the costs as to increase or maximise profit so long as it stays will certainly seek the supporting within the rules of the game. The ‘game’, as it were, documents • Party-and-party costs versus is the contest of litigation and the rules are those solicitor-and-client costs

laid down by the Rules of the superior courts. The costs MAIN POINTS

22 Law Society Gazette Jan/Feb 2000 Legal costs times

profitability. Proper costing sheets will reflect the THE PURPOSE OF RECORDING COSTS DATA number of hours worked by each solicitor on a case, The system chosen by a firm to record costs data can perform several the number of expert witnesses, the number of functions within the business unit. For example, it may help to increase counsel and the nature and extent of the work done, the recovery of costs, while: and the apportionment of fixed costs. •Improving the quality of decisions made by partners But while it is obviously important to record the • Motivating staff to make decisions that will help the firm prosper, and amount of time spent on a case, this merely indicates • Aiding the partners in evaluating the performance of each department the number of man-hours taken to perform a task. and highlighting those areas that need attention. To translate this into a monetary rate chargeable to the client, one must apply an hourly rate to the actual number of hours involved. The definitive rate per hour is directly related to the category of overall for the other relevant factors [that is, in personnel involved in doing the work. It is therefore addition to a time-based rate] – complexity, skill, necessary to choose the right person to do the job – responsibility and so forth. I reject the argument preferably someone who is sufficiently experienced advanced by the Minister that the latter factors are in that particular task. already rewarded through the daily rate. Unlike the Indeed, Laffoy J accepted that the category of application of an appropriate hourly rate to the personnel and the amount of time expended were appropriate number of allowed hours in respect of essential criteria in the assessment of the amount of the appropriate cadre of personnel, the application remuneration rewarded to the solicitor, but added of a flat daily rate without regard to actual time that these may not be sufficient to reflect the overall worked or by whom worked does not reflect those level of the instruction fee. In The Minister for factors’. Finance v Laurence Goodman & Ors (Unreported, So recording time costs is simply one element in High Court, 8 October 1999), she said: the global information needed to manage any firm, ‘The sum of £275,000, in my view, properly whether big or small. Planning and control is reflects the preparatory work and properly rewards necessary to compare budgeted costs with actual

23 Law Society Gazette Jan/Feb 2000 Legal costs

‘While it is ‘Had a time-record been kept, it would have been ACCURATE BILLING helpful in determining the physical input into the obviously ‘Unless time is recorded, there is no other case and the actual cost thereunder. Therefore, the important to means of monitoring it. It is becoming an best and most accurate way to establish exactly and increasingly important factor in assessing what precisely how much to charge a client for work is to record the is fair and reasonable remuneration. An determine how much time it took to finish or amount of effective time-recording system will invariably complete that work, having regard to the calibre of result in an increase in remuneration and the personnel, dictated by the nature of the work, time spent efficiency’. coupled with the other elements of the instruction on a case, Alfred E Anderson, CBE, Legal costs in fee ... The instruction fee is dependent upon the Northern Ireland (1990) actual work that is done and, as such, incorporates this merely all factors, both tangible and intangible. Time indicates the should be justifiably spent on a case and any time costs, which in turn will influence managers in that is abnormal, excessive or improper should be amount of regard to the projected price of future services. disallowed on taxation, whether it be on a party- man-hours Overheads must in some way be included in the and-party or a solicitor-and-client basis. This case pricing mechanism, and it is normal to use a time was at the outset envisaged to take some time both taken to unit in applying a fair apportionment of these costs. in preparation and in the course of the hearing. perform a Briefly, recording data, although time Therefore, given the amount of estimated damages, consuming, will enable partners to perform their it was incumbent upon the solicitor to record the task’ roles properly. It helps to identify areas that require work in some sort of a concrete manner’. attention and will indicate performance levels, When recording the amount of labour involved potential growth areas, profitability and show in a case, it is not enough merely to record the whether or not the firm is on a sound financial amount of time, but also how that time was spent. footing. The taxing master in the Superwood case quoted the dicta of Payne J in Re Kingsley ([1978] 122 SJ 457), Taxation of costs where he stated: The taxation of costs is the settlement of the ‘I ought to add that this case illustrates the amounts payable by a party or parties in respect of dangers which are present if reliance is placed on a the costs in an action, cause or matter which is modern system of recording, without at the same assessed by a taxing master. In order to achieve a time retaining the old and well-tried practice of fair and just amount, the taxing master relies on the keeping attendance notes showing briefly the time information submitted to support the costs that are taken and the purport of the work done by day. It claimed. Notwithstanding the fact that allowing any may be that this case will invite attention to the particular item in the bill of costs depends on the importance of appreciating the limits to which the court order awarding costs, each item must be computer system can be used in cases where supported by evidence, and its allowance or taxation of costs must follow litigation and to the disallowance may in great measure depend on the necessity of preserving as well the use of the information provided at taxation. If one is to be in a traditional systems’. position to furnish all necessary documentation, for The records should reflect all the work and obvious reasons one should begin compiling it at expense incurred in a case. Time costs are only one the start of a case. element; other costs that should be supported by The taxing master in Superwood Holdings plc & sufficient evidence are counsel’s fees, witness’s Ors v Sun Alliance and London Assurance plc & Ors expenses, the cost of reports and so on. (17 December 1997) described how useful records The Courts and Court Officers Act, 1995 gives the could be during a taxation: taxing master the power to examine the nature and

THE LOGIC BEHIND TAXING COSTS Taxing costs reassures the public that the costs allowed are done? But the lawyer is urged by the bar to snoop into the fair and reasonable. The public can then have confidence in client’s status ... the lawyer is told that he should check what solicitors and in the fees charged. In the United States, the kind of car the client is driving to help determine whether he fees charged by lawyers came under fire from the public and can pay the charges – in this case, literally what the traffic an American lawyer, Miles McMillin, took umbrage at the will bear. The new fee schedule does not suggest that the apparent ease with which lawyers could charge what they lawyer also check the client’s liquor cabinet, deep freeze, liked without proving that the work had been done. He wrote: refrigerator and wardrobe, but lawyers have a Latin expression ‘The public must not only pay the rates the lawyers decree that covers the situation: Expressio unius est non exclusio from their privileged closed shop, it must take the word of the alterius. (The inclusion of one does not mean the exclusion of lawyers on how much work they put in. If the lawyer says he others). It’s a pity the public doesn’t have some rules in Latin put in an hour’s work on a case, there is nothing the client or otherwise to protect its interests’. can do but pay the $25. How can he prove the work wasn’t Madison Capitol Times, 12 November 1966

24 Law Society Gazette Jan/Feb 2000 Legal costs

SECTION 68 OBLIGATIONS Section 68 of the Solicitors (Amendment) Act, procurement of grossly excessive fees for their 1994 now obliges the solicitor, on taking services ... constituted a fraud’. He went on to instructions from the client, to inform him in remonstrate that the ‘careless and unbusinesslike writing as soon as is practicable of the likely costs administration ... failure to make reports as in the action. In Purdy v Nordquist and Durham required by law, failure to keep accurate and ([1961] 95 NW 2d 91), Montague J of the US correct records of the financial transactions’ were Supreme Court found that failing to fully inform altogether unacceptable. Indeed, he ordered that and advise the client of the level of fees was a all the fees were to be repaid to the plaintiff and breach of duty. He emphasised that ‘in conjunction hinted to the professional bar that the matter was with their [the lawyers’] methods and conduct, the worth their attention.

extent of the work undertaken in a case. In order to or defending the rights of the party whose costs are do this, he must be given detailed information being taxed. about the nature and extent of the work done. It is In McGarry and Others v Sligo County Council best if that information is collected from the outset, (Unreported, Supreme Court, 5 May 1989), Walsh because if you leave it until taxation it will take J held that the whole basis of party-and-party costs considerably longer to compile. A party must is one of indemnity. Party-and-party costs do not provide all the relevant material that will help in an normally cover all the charges incurred in the examination of the costs of an action and, as the course of the action and therefore rarely provide a costs are those of the client, the solicitor has a duty complete indemnity. Essentially, this means that to satisfy this requirement. This has placed what anything over the amount recovered from the was traditionally accepted as a practical method of paying party must be met by the party having their collecting costs data on a more permanent and costs taxed, and this amount represents the statutory footing. All too often things are left to the solicitor-and-client costs. last minute and an item in the bill of costs may If a party is expected to pay costs, it is axiomatic easily be missed and so be irrecoverable. that they will certainly seek the supporting In Superwood, the taxing master said: documents in order to satisfy themselves, first, that ‘Although the costs herein were incurred prior to the costs were indeed incurred and, second, that the enactment of the Courts and Court Officers Act, those costs were necessary and proper for the 1995, there was a traditional custom to record the advancement of the litigation. There is an onus on extent and import of the work done on this case. I the party claiming costs to demonstrate to the taxing do not think it incumbent upon me to set out the master’s satisfaction that the costs incurred were expansive authorities upon this area for it is well proper and reasonable in all the circumstances. But FEE SCALES and truly accepted that, upon a taxation, the the taxing master is guided by his experience as to OR PRICE- amount and extent of work performed must be when this onus has been discharged and he is not FIXING? supported by evidence so that justice is done to controlled by the strict limits imposed, for example, ‘A fee schedule both parties to a taxation’. by the onus of proof in criminal courts; rather, he is promulgated by a Accordingly, solicitors are ultimately responsible guided by the evidence presented. The fees claimed bar association is for the compilation, retention and gathering of all cannot be construed as being within a scale because nothing more than the evidence in supporting the costs of the party scales as such do not exist. price-fixing, which is they represent. The taxing master emphasised that illegal in inter-state ‘it is recognised by the courts that to determine a ‘Necessary and proper’ costs commerce and is matter it must be determined upon evidence, no So the costs incurred must be necessary and proper frowned upon matter how small, meagre or diminutive it is’. and determined on the basis that they were incurred generally in the in furthering the action of the party whose costs are business world as Party-and-party costs being taxed. In the case of Stuman v Dixon (22 QBD an attempt to stifle If a client is successful in an action and has been 529), the following distinction was made between competition. It has awarded costs against the unsuccessful party by the party-and-party and solicitor-and-client costs in an no higher standing court, the unsuccessful party will pay most if not all action: ‘The costs of the plaintiff as against the party in the practice of the actual costs incurred. Simply, party-and-party do not mean all the costs he has incurred but all the law’. costs are those costs which are usually paid by the costs he has incurred by the act of the defendant. Chicago lawyer loser to the winner in an action, thereby covering That is the difference between party-and-party and Jackson L Boughner the bulk of the legal costs incurred by the winner. solicitor-and-client costs. For example, it may be in ‘Let’s throw out The party-and-party basis does not mean that all reasonable to have several consultations, but it the reasonable fee the costs incurred are recoverable from the doesn’t follow he is to get them all against the party’. schedules’, Journal unsuccessful party; there is no guarantee that they The method of assessment is of critical of the American Bar will all be met. In fact, the costs allowed are importance in that the approach is not a concrete Association, March confined to those which are deemed necessary or science and the justification of a cost is exclusively 1962 proper for the attainment of justice or for enforcing dependent upon the part it has played in the

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conduct of your case to have regard to the fact that SOLICITOR-AND-CLIENT COSTS: your adversary may in the end have to pay your SUPERIOR COURT RULES costs (the adversary should also have regard to this Order 99, rule 11 of the Rules of the superior courts 1986 says that: in the conduct of his case). You cannot indulge in a ‘• On a taxation as between solicitor and client, all costs shall be “luxury of payment”; a remarkable instance of that allowed except in so far as they are of an unreasonable amount or occurred in this case, but it was occasioned by way have been unreasonably incurred of excessive caution, and the adversary is not to pay • Any costs which in the circumstances of the case are of an unusual for that. When a case is laid before counsel to advise nature and such that they would not be allowed on a taxation of costs proofs, and he requires the due consultation, that as between party and party shall, unless the solicitor shall have must fall as solicitor-and-client costs and not as costs expressly informed his client in writing before they were incurred that taxable as between party and party’. they might not be so allowed, be presumed, until the contrary is Moreover, order 99, rule 37(18) of the Rules of the shown, to have been unreasonably incurred superior courts 1986 states: ‘On every taxation, the • On a taxation as between solicitor and own client, all costs incurred taxing master shall allow all such costs, charges and with the express or implied approval of the client evidenced by writing expenses as shall appear to him to have been shall be conclusively presumed to have been reasonably incurred, and necessary or proper for the attainment of justice or where the amount thereof has been so expressly or impliedly for enforcing or defending the rights of any party, approved by the client, to have been reasonable in amount’. but, save as against the party who incurred same, no costs shall be allowed which appear to the taxing master to have been incurred or increased through over-caution, negligence or mistake, or by payment ‘Party-and-party litigation or matter under taxation. The assessment of special fees to counsel or special charges or is only as good as the information that is furnished expenses to witnesses or other persons or by other taxation does to support the costs claimed. The party must lay a unusual expenses’. not mean that proper foundation to his case in order to succeed; costs incurred above what is considered a reasonable Solicitor-and-client costs the paying party minimum may suggest over-caution and so the party Party-and-party taxation does not mean that the must completely authorising them will be liable to pay the solicitor paying party must completely indemnify the other for the excess costs incurred on his behalf. for all the expenses that have been incurred. The indemnify the In Ryan v Dolan (IR 7 Eq 92), the court held that costs that fall outside party-and-party costs are other for all if an excessive and extravagant outlay had been termed solicitor-and-client costs. A solicitor in directed or insisted on by the client himself, it working for a client may have to pursue certain lines expenses would not be allowed as part of the costs in the suit, of enquiry or undertake certain tasks in an action incurred’ that is, as party-and-party costs. In The Attorney that are not recoverable under the party-and-party General (McGarry) v Sligo County Council ([1991] 1 award of costs. Such costs are properly within the IR 99), it was held by the Supreme Court that the solicitor-and-client category and must be discharged underlying principle of party-and-party costs was by the client. The rule is that on the taxation of a that: bill between a solicitor and own client, charges • The party chargeable was only obliged to which were not expressly or impliedly approved by indemnify the party awarded costs where an the client should be allowed if they are reasonable order for costs had actually been made, and (see Lavin v Walsh [1967] IR 129, at page 135). • The items claimed had been properly incurred, The bill of costs furnished to the client should and include all costs of the action, that is, party-and- • The claiming party was under a legal liability to party costs and the solicitor-and-client costs. Again, pay them. records are of great importance here in computing and compiling this bill. Moreover, the court held that the claiming party Keeping proper attendance notes will help you to could recover no more than what he had actually gauge the amount of time spent on a case and expended, or remained legally liable for, if such indicate exactly what business was transacted. The expenses were properly incurred. There may be note should include the date, the parties attending, costs in an action that are not allowable as party- the amount of time spent and the substance of what and-party costs: it is necessary to isolate these and, was accomplished. If counsel was present, the note in the interest of the paying party, show which costs should include what directions were given. Similarly, are not covered on a party-and-party basis and the telephone calls received or made on the client’s reasons for this. The party claiming costs must behalf should also be logged and a brief note of the justify why they should be allowed. nature and duration of the call. In Dyott v Reade (10 ILTR 111), the following Always remember that even the worst ink is far principle was laid down by Sullivan, MR: superior to the greatest memory, so write it down! G ‘In costs between party and party, one does not get full indemnity for costs incurred against the Tony Halpin BL and Taxing Master James Flynn are the other. The principle to be considered in relation to authors of Taxation of costs (Blackhall Publishing, party-and-party costs is that you are bound in the 1999).

27 Law Society Gazette Jan/Feb 2000 Property

The French like to do things differently. Their viager system allows you to sell your house in return for a one-off lump sum and regular payments – the twist is that you can still live there for the rest of your life. Brendan Walsh explains the system and asks: could it work here? Frenchco n France, viager is an established and respected situations or where there is a friendship between, say, system by which people (referred to in viager the transferors and the parents of the buyer. (In family jargon as ‘heads’) can transfer the eventual situations, it is most often a childless person selling to ownership of property – whether it be a holiday his niece or nephew.) However, because Irish capital I home, family home or even a portion of a tax legislation is more favourably laid out, in certain residence – to another person while remaining in circumstances the system could operate beneficially in possession, occupation and enjoyment of the property this country. for the rest of their lifetime. They usually (but not As an investment, a viager arrangement might be always) receive a bouquet, which is a kind of down beneficial to a person seeking to broaden his range of payment, and after that a regular monthly payment investments, but it is not without its hazards. The most (usually index linked). dramatic example in France was a case in which the Although the viager system operates in a similar transferor was an 80-year-old lady and the buyer was a format in other European countries, this article is notaire (coincidentally) of approximately 45 years of confined to the French system. It was very popular as age. The notaire died a few years ago, aged over 80, an investment years ago, but its use has declined while the transferor lived until last year, when she died considerably, partly because of its unpredictability as at the age 121. Jeanne Calmet, who was at the time the an investment and partly because of France’s capital tax oldest resident in France, was still being paid by the legislation. These days its use is principally in family estate of the deceased notaire until the day she died.

28 Law Society Gazette Jan/Feb 2000 Property

In France, the system has been used deliberately and further advantage of allowing the transferor the effectively to disinherit children. Under French law, comfort of knowing that he will have something to there is a réserve that depends on the number of leave to his children, relations or friends – he’s not children surviving the testator. If he has only one child, ‘dispossessing’ them entirely. Having decided on then only half the estate can be left other than to that the type of package best suited to the needs of the child. If the testator is survived by two children, then transferor, the notaire or agency would then place a only one-third is free for distribution other than to small advertisement in a national newspaper, those children; and if the testator has three or more somewhat along the lines of the examples below. children, then only one quarter is free, or what the The notaire would then sift through the replies French call quotité disponible. But under the viager received, concentrating on two or three offers and system, they would have disposed of their principal negotiating according to the client’s wishes until asset during their lifetime, thereby effectively denying agreement is reached. Sometimes the buyer their offspring the benefit of that asset upon their negotiates with the transferor’s notaire directly, death. A typical example of how the system operates would be as follows: a 70-year-old widower finds THE VIAGER SYSTEM IN ACTION himself without adequate pension or assets other The viager system is usually effected through newspaper than a house worth, say, the equivalent of £200,000. advertisements. Here are translations of two typical ads for properties He would obviously be in an unenviable position in towns near Paris: financially. As it is at the moment in Ireland, he would probably be advised to sell his house and Angouleme, in the Victor Hugo district. A viager occupied by two heads move into either a smaller house, investing the of 70 years of age each. A detached house of 94 square meters. differential, or to move into a flat. His preferred Upstairs: two bedrooms, living room, kitchen, bathroom. Ground floor: choice – remaining in the residence and locality in garage, bedroom, veranda. Oil-fired central heating. Tank capacity of which he has spent all his adult life – might not be 1,800 litres. 445-square-meter garden. Bouquet: 50,000 francs plus open to him without extreme hardship. Whatever 3,800 francs a month. social welfare payments or other income he receives would be subjected to the cost of necessary repairs, St Maur des Fosses. An occupied viager on one head of 69 years of insurance and so on. In such circumstances, he might age. A stone villa, two entrances, five principal rooms, 150 square do well to take advantage of the viager system. meters. Full basement, attic capable of conversion, garage and store house. 1,000 square meter walled lot. Possibility of building second Picking the bouquet structure in future. Close to transport, shops, schools. Bouquet: The bouquet asked is usually about 50% of the 850,000 francs plus 6,500 francs per month. value of the property and can vary depending on onnections

the requirements of the transferor. If it is a second usually in family or friendship situations. In any or holiday home, then the bouquet could very well event, the notaire would have a fairly accurate idea • Viager be whatever would be necessary to clear the of what could be expected for the property by agreements can be a transferor’s capital gains tax liability, so as not to reference to life-expectancy tables (Baremes Rapides) source of leave an outstanding problem in this regard. As a freely available from the Centre d’Etudes du Viager. income for general rule, the system is rarely used with larger (In fact, the schedule to the Capital Acquisitions Tax the elderly properties, though there is no reason why that has Act, 1976 could be used for people in this country.) • They can to be the case. The agreement could take a number of different also make Referring back to the theoretical 70-year-old forms, depending on whether the client wished to buying widower described above: he would go through a have a bouquet and a regular cash payment property specialist agency or a notaire who would conduct a thereafter or no bouquet and a larger monthly affordable professional valuation of the property and help him payment. These monthly payments are usually for first-time buyers decide whether he needed a bouquet and, if so, how index linked. • But they’re much it should be. If there were two transferors, A typical example of the system based on a not without they would have to expect a lesser monthly payment ff1,600,000 (approximately £200,000) property for a risk because the life expectancy of two individuals would widower of 70 years of age would be either: MAIN POINTS obviously be longer. The greater the bouquet, the •A bouquet of ff320,000 (approximately £40,000) smaller the monthly payment. A bouquet has the plus payment of ff6,945 (approximately £868) a

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month, index linked, or obligations in relation to the property by way of ‘It is •No bouquet, but monthly payments of ff8,680 maintenance, repair, insurance and so on. In France, (approximately £1,085), index linked. the buyer insures the property and pays all taxes and imperative to outgoings as well as all repairs, so the transferor is keep a strict The life-expectancy rate and the expected interest getting his rent net and ‘into his hand’. The buyer rate given by the Centre d’Etudes du Viager for a man would then become registered as owner, paying and auditable of 70 years are .593 and 10.98% so the formula is as stamp duty based on the value of the interest record of all follows: passing. Again, this could be set by reference to the •Property – ff1,600,000 tables in the Capital Acquisitions Tax Act, 1976. payments • Less bouquet – ff320,000 In France, there is statutory provision that in made, •Total: ff1,280,000 viager transactions the transferor has to live for 20 •@ .593 = ff759,040 days after the deal is concluded. If the transferor otherwise the •@ 10.98% = ff83,342 does not live for that amount of time, the deal is buyer would be • Per month = ff6,945. void and all monies are handed back. The normal contract allows the buyer to move into the property open to the Since the bouquet is paid up front and the buyer has two months after the death of the transferor (or, if accusation of to await the transferor’s death before he sees any there are two of them, after the death of the second). benefit, if you look at it from the buyer’s point of Because of the use of tables such as those issued having set up a view, the smaller the bouquet, the better. Hence the by the Centre d’Etudes du Viager or those in the fictitious deal need for the transferor to have a notaire or other schedule to the CAT Act, 1976, the transaction can agent negotiate on his behalf. be seen to be a genuine one, but it is imperative to to evade CAT’ In France, there are set procedures and keep a strict and auditable record of all payments documentation to cover the actual conveyancing made, otherwise the buyer would be open to the aspects, but in this country, from a conveyancing accusation of having set up a fictitious deal to evade point of view, the transferor would have to convey or CAT, which can be up to 55% in France. G assign his property to the buyer, reserving a life interest in it. There would be a separate but related Brendan Walsh is managing partner of the Dublin-based agreement to the effect that the buyer would pay the solicitors’ firm Brendan Walsh & Partners. The author transferor so much a month (or over some other would like to thank Elisabeth Marie of the Paris firm of agreed time-frame). SCP Etasse, Rivoire et Associés for her help with his This agreement would also set out the buyer’s technical queries.

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31 Law Society Gazette Jan/Feb 2000 Probate

SpanishMaking a w Most Irish people understand the importance of leaving a will, but those who own property in other jurisdictions must make special arrangements. Rafael Berdaguer explains what’s involved in drawing up a Spanish will to cover Irish assets in that country

he growing number of Irish people who certificate from the Central Last Will Registry in own assets in Spain could save their Madrid confirming that the testator has left a will heirs the trouble of wading through an executed before a notary public and that the administrative backlog by drawing up a recorded will is the last one left by the testator. T Spanish will. On the testator’s death, the The Central Last Will Registry is the official Spanish part of the estate can be wound up at the registry where all wills executed before Spanish same time as the Irish estate. notaries are recorded. Apart from the Spanish will, only two other Upon the execution of a Spanish will, the attesting documents are required to transfer Spanish assets to notary must send a note to the registry with the the heirs: the testator’s death certificate, which must name of the testator, the date of execution and the be translated into Spanish by a sworn translator and protocol number of the will. If a testator has legalised at the Spanish embassy in Dublin, and a executed a second or further will, Spanish law

32 Law Society Gazette Jan/Feb 2000 Probate

dictates that the latter will automatically revoke any a notary public. An Irish person executing a will former will unless otherwise specifically provided for before a Spanish notary will have to use an by the testator. Wills executed in Ireland before an interpreter who translates the terms of the will into Irish notary public can also be registered in Spain, English and who signs it as well. The will must be provided the will is drawn up in Spanish or has been prepared in bilingual form. In most cases, the duly translated into Spanish and legalised by the interpreter is the lawyer assisting his client in this Spanish embassy in Dublin. matter. With these two documents and a notarised copy The will is a personal and individual act which of the Spanish will, the heirs (or someone granted means that it has to be signed personally by the power of attorney by them, usually a lawyer) can go testator, and not by someone with power of to a notary public and proceed with the execution of attorney from him. It also means that two people the deed of declaration and acceptance of inheritance cannot execute the same will, so a joint will is not (escritura de declaración manifestación de herencia), valid under Spanish law. whereby the assets of the testator are transferred to The notary reads the last will as given by the the appointed heirs. The deed has to be submitted testator and then the testator, notary and interpreter for payment of death duty to the Spanish Revenue sign it. The notary notes the exact time and date of Commission within six months of the testator’s the will’s execution in the document and declares in death. Once the tax has been paid, the deed is lodged the will that he has identified the testator by his with the land registry for final registration of the passport and that the testator has the legal capacity assets in the name of the heirs. to execute the will. In certain cases, the use of If the deceased Irish property owner has not left a witnesses is required. All these formalities must be Spanish will to govern the transfer of his assets, the completed at the same time, otherwise the will heirs will face a more complicated situation. If there could be declared null and void. is an Irish will that has provisions for the Spanish In the case of a will signed before an Irish notary assets, a grant of probate will have to be obtained public, the formalities of the place of execution through the Irish courts ratifying the legal heirs to (locus regit actum) are applicable – that is, the need the part of the estate in Spain. If no will was left by for witnesses and any other formalities required by the deceased, the corresponding intestacy Irish law have to be complied with. The will proceedings will have to be followed through the executed in Ireland has to be executed in bilingual courts in Ireland to obtain a resolution declaring the form and legalised by the Spanish embassy and legal heirs to the estate. That resolution or grant of registered in the Last Will Registry in Madrid. probate will have to be translated by a sworn translator into Spanish and legalised by the Spanish Proposal for a Spanish will embassy in Dublin. By the time the heirs have gone A Spanish will must be confined to Spanish assets, through this lengthy and costly process, the six- which means that specific mention must be made month statutory period for paying Spanish death that any other will executed by the testator for his duty on the Spanish assets will probably have passed remaining assets elsewhere will not be revoked by so surcharges and penalties will have accrued to the the Spanish will. tax bill. In the most common scenario, an Irish couple with children and Spanish property that has been Laws governing inheritance registered in the parents’ name will usually will The international law provisions of the Spanish civil bequeath all their assets, interests and rights in code stipulate that the nationality of the deceased Spain to each other (in the case of one spouse dying person governs all inheritance matters relating to before the other). In case of unexpected incapacity him. In the case of an Irish citizen, this means that or one spouse renouncing inheritance rights, the Irish law will be applicable to his inheritance and, in appointed heir would be substituted by the children particular, to his Spanish estate. in equal shares. It is very important to include the •Only two The Irish Succession Act, 1965 contains limitations substitution clause in the will to avoid the documents on the testator’s freedom to dispose of his assets and possibility of intestacy proceedings. Any other required to transfer provides that specific shares of the estate must be provisions are also valid as long as they respect Irish Spanish assets transferred to specific heirs. In most cases, these law and the applicable regulations as required by to heirs limitations will not apply to Irish people who own Spanish law. •Wills executed property in Spain and who have made a Spanish will So if Irish people want to enjoy their property in in Ireland can since the Spanish legacy should not affect the legal sunny Spain with a trouble-free mind, they would be registered right of the heirs in Ireland. The appointed heirs be well advised to execute a Spanish will. And after in Spain under the Spanish will are usually the spouse or that, they can catch a flight without worrying about • Irish will must children of the testator, who are the people entitled what will happen to their Spanish assets if the plane be in bilingual to the legal right of the estate anyway. crashes – although I suppose that would be the least form and G legalised by of their problems. Spanish The execution of a Spanish will embassy The most common type of will in Spain is the open Rafael Berdaguer is a lawyer with the firm Rafael

MAIN POINTS will (testamento abierto), signed by the testator before Berdaguer, Abogados, based in Marbella, Spain.

33 Law Society Gazette Jan/Feb 2000 In a world

Law Society of Ireland of grey... Wishes to recruit a COURSE CO-ORDINATOR FOR ITS LAW SCHOOL

uties will include the co-ordination and running of selected Dcourse subjects on the training courses for apprentices, the engaging of teaching teams, organisation of course materials and examinations and the planning of syllabi. The successful candi- date will also be expected to contribute to the teaching of the course subjects and to correct examination papers. Computer lit- eracy and a range of professional experience are desirable, though the Law School also welcomes specialist skill and experience. The successful candidate will have a legal background and an interest in education. Terms of appointment will reflect the calibre, qualifications shouldn’t and experience of the successful candidate. Letters of application with full Curriculum Vitae to be received not later than Friday 18 February by: your answers be in

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References from Irish Law Firms: Hayes & Sons (Andrew O’Rorke), COURTESY OF THE LEADING MANAGEMENT Dillon Solicitors (Brendan Dillon), Sherrys Solicitors (Brian Sherry). ACCOUNTS PACKAGE FOR LEGAL FIRMS Curriculum development CDU: criminal law or quite a number of years, the subject of incarnation, an issue which has largely been addressed Continuing criminal law had the status of something of by redesigning it, allowing plenty of absorption-time its series of a poor relation on the Law School’s for students. professional course (now known as the As part of the overhaul of the professional practice articles on the F professional practice course) – despite the course, criminal law has been expanded to cover more professional dedication and enthusiasm of those members of the teaching hours and to include tutorials and role-play profession involved in organising and delivering (students, for instance, might be asked to present a practice course lectures and tutorials, and students’ obvious interest in model plea in mitigation during a tutorial). As usual, syllabus for the module. One explanation for this state of affairs those members of the practising profession who have was undoubtedly the profession’s perception of the contributed all along, together with newer apprentices, the practice of criminal law as a specialised area, rather contributors, have rowed in with their customary and Law Society’s than one with which every solicitor ought to have at invaluable expertise and enthusiasm. least some functional familiarity in order to provide In summary, the curriculum currently covers the Curriculum his or her clients with the best service possible. following topics and they are dealt with Development Another lay in the perennial problem of insufficient comprehensively in both the teaching texts and in teaching time on the course in its previous lectures and tutorials. Unit explains

District Court procedure instructions, advising Appeals Complaints Board, identity what’s involved Short historical client, preparing the case General summary of parades and the in its criminal background, importance of itself, legal aid. appeals procedure. advisability or otherwise of District Court as participating in them. law module and originating court in all Bail Powers of detention criminal matters, initiation DPP v O’ Callaghan, Detentions under sections Driving offences invites members of proceedings, matters procedure on a bail 30, 4 or 2 of the Importance of checking dealt with summarily/on application, including respective statutes, summons or charge sheet to air their views indictment, venue on situations where client is regulations while in very carefully, conflict of on how it could indictable charges, in custody, refusal of bail, custody, advising clients in interest where civil case disclosure of pre-trial sick warrants, summary of custody (this constitutes a pending and insurance be improved information (DPP v Gary provisions of Bail Act, very detailed and company instructs, detail- Doyle). 1997. comprehensive section of ed notes on the most the teaching notes), right common driving offences Duties of a defence Conducting a case to silence, advisability or (statutory sources of solicitor Charging procedure, otherwise of making a offence, ingredients of Preliminary considerations admissibility of evidence, statement (Heaney v each offence, proofs (including possible refreshing the memory, McGuinness), tactical required and so on), approach to prosecution cross-examination, right of considerations at the detailed consideration of to ascertain whether election, factors in favour garda station, client factors to be taken into they do in fact intend of/against both venues, decides to make a account when advising, to proceed – taking in preparation of a Circuit statement, consideration including checklist of most matters such as Court case, trial thereof, of article 6 of the important points, taking of staleness, triviality of the arraignment, search European convention on specimens, procedure at offence, youth or old age warrants, sentencing, human rights, taking of bureau regarding of offender, mental health scope of orders made forensic samples from a specimens, summary of of offender and so on), after conviction, children’s client in custody (issues of court procedure, appeals, taking client’s court. consent and so on), Garda cases stated, inquests.

In addition to all this, there are sections in the law in particular, and a more detailed overview of the teaching texts covering recent changes in the law, workings of the legal aid system (including its impact which is kept up-to-date, an interpretation of the on cashflow within a practice with an eye to the now- Please send any provisions of the Criminal Justice (Drug Trafficking) considerable percentage of solicitors in practice for comments or Act, 1996, compensation and other considerations for themselves) will benefit from more comprehensive suggestions on the crime victims, money-laundering controls in the Irish treatment in the future. curriculum and criminal law system, including the functions of the The views of the profession on the content and applications to tutor to Criminal Assets Bureau, and criminal law in a scope of the curriculum are invited. Members with an Katherine Finn, Co- European context. Although these items are not, interest in becoming involved as tutors or lecturers ordinating Solicitor strictly speaking, part of the core curriculum, they should forward details of their experience in the area, make absorbing and informative background reading together with those of any prior teaching experience (Criminal Law), Law for students. Specimen files and summonses for they may have had. Society of Ireland, tutorial work, all relevant legislation and case law, and This opportunity is taken to extend sincere thanks Blackhall Place, Dublin further reading lists are also provided. Areas such as to all members who have contributed to the teaching 7, DX: 79 Dublin, tel: prison visits, children’s court, appeals procedures, of the subject in the past and who continue to do so. 01 672 4800, fax: 01 advocacy skills pertaining to the practice of criminal It couldn’t be done without you! G 6724803, e-mail: [email protected].

35 Law Society Gazette Jan/Feb 2000 Books Book reviews The Family Law (Divorce) Act, 1996 Nuala Jackson and Stephanie Coggans. Round Hall Sweet & Maxwell (1998), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-85800-125-0. Price: £25.

he recent publication of the determining ancillary orders practitioners. Our judiciary is to the earlier Family Law Acts. TAnnotated Family Law relating to financial matters and be commended on the growing My only complaint – strictly (Divorce Act), 1996 by Stephanie will greatly assist practitioners frequency with which consid- of a personal nature – is the size Coggans and Nuala Jackson – who have difficulty in explaining ered judgments are being of the print in the general notes. the third in a series of Round to litigants the impossibility of handed down in divorce and No account is taken by the Hall annotated legislation – predicting the outcome of any judicial separation cases. It is to publishers of the effects of many is a welcome addition to the court proceedings and the lack be hoped that such judgments years of practice on the eyes! G libraries of all family lawyers. of certainty with regard to will grow into a body of law The general notes will be of financial consequences. There which will develop a consistency Joan O’Mahony is the Principal of interest not just to family are interesting references to the in the application of the various the Dublin firm O’Mahonys lawyers but to psychologists and whole issue of a clean break principles contained in this and Solicitors. sociologists alike, setting the situation, particularly the judicial divorce legislation in the social pronouncements in F v F and as well as legal context. The the assertion by McGuinness J references to the Dáil debates in JD v DD that the statutory and the rationale behind the policy is totally opposed to the Administrative law in Irela inclusion of certain terminology concept of a clean break. The Gerard Hogan and David Gwynn Morgan. Round Hall Sweet & Maxwell (1 and conditions in the legislation obligations of practitioners to will be of great interest to those advise clients on this whole issue arlan F Stone, the only potential of being firmly checked of us who struggle with the is well highlighted. Huniversity professor ever to by the judicial arm of government consequences arising from the This is a book not just for serve as Chief Justice of the US in this country. (at times) somewhat illogical family lawyers, but indeed for all Supreme Court (Associate The authors note that lawyers and impractical conclusions conveyancers and company Justice, 1925-1941, Chief Justice have hitherto been slow to admit arrived at by our legislature. lawyers, who ignore the 1941-1946), noted extra- administrative law ‘to the The whole issue of the ‘living consequences of the recent judicially in 1921 that the United charmed circle of blocs of law apart’ principle is tested out family law legislation at their States had been trying some which are officially regarded as extensively at pages 14-16 and, peril. Property adjustment dangerous experiments in discrete legal subjects’. Let it be in the view of the authors, is an orders have brought family law autocracy in passing numerous said: any self-respecting lawyer issue which ultimately will into the public and general arena laws under which administrative ignores administrative law at his require Supreme Court as no other provisions of family officers were given extraordinary or her peril. Administrative law interpretation. Similarly, the law have done. The cross- powers over the liberty and has come of age. rationale behind the four-year references both to earlier family property of individuals without Here, I can only signal to the period, while laudable in its law legislation, the various appropriate safeguards afforded reader some of the contents of intention, is ‘entirely removed Finance Acts and other related by judicial review and by this monumental work. The early from the reality of marriage legislation is particularly helpful. traditional legal procedure. The chapters cover sources of breakdown’. Coggans and Jackson are to authors, in their preface, remark administrative law, the Dáil, Of particular interest – and, be commended on the extent on the renaissance of Ministers, departments and civil indeed, compulsory reading for and breadth of the information administrative law in Ireland, servants, State-sponsored bodies all practitioners – will be the supplied, reflecting as it does the refer to the re-kindling of that and aspects of local government notes dealing with sections 5, social and economic factors renaissance with the ‘seminal law. Tribunal and inquiries is the 13-15 and 20 of the Act. This is which plagued the legislators trilogy’ of cases, East Donegal heading of a single chapter, which not to say that the general notes during the passage of the Act. In Co-operative Livestock Marts Ltd v is followed by an investigation of relating to the other sections are addition, their explanations of Attorney General ([1970] IR 317), three causes célèbres: the non- not of equal importance, but the various definitions which Re: Haughey ([1971] IR 217) and statutory Hepatitis C Tribunal, these particular sections deal underpin the legislation are Byrne v Ireland ([1972] IR 241), the Dáil inquiry into the fall of with the constitutional useful and informative, and the and conclude that the renaissance the Fianna Fáil/Labour imperatives, together with the subsequent interpretations has now ‘flowered almost to full government, and the Dunnes inevitable financial placed by the courts on these bloom’. So any move to Stores Tribunal. The general consequences of divorce. various definitions will autocracy with administrative principles of licensing and the Section 20, in particular, eventually develop a officers exercising extraordinary ombudsman are also examined. discusses the criteria taken into jurisprudence which will be of powers over the liberty and The authors then examine in consideration by the court in invaluable assistance to all property of individuals has the some detail the fundamental

36 Law Society Gazette Jan/Feb 2000 Books

Freedom of information law in Ireland Maeve McDonagh. Round Hall Sweet & Maxwell (1998), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-899738-79-7. Price: £89.

he idea behind freedom of The Freedom of Information Act, given case. All this leaves on the ambiguity (or, some Tinformation (FOI) is fairly 1997 is a complex statute with open a great demand for a might say, the clarity) in the simple. There is a presumption many provisions that are reliable guide with which to short and simple type of of a right of access to difficult to interpret. Its length break into this fascinating exemption characterised by information from public bodies and detail result in difficulties subject matter, a service which the equivalent legislation in covered by FOI law. This in navigating text. For is comprehensively rendered by the United States. Chapter 5 access can be limited or instance, try to identify Maeve McDonagh in her provides a useful and logically- defeated only by explicit precisely which public bodies impressive textbook. presented overview of some restrictions laid out in the Act. are governed, what exact Most users will be coming to general issues concerning The practice can be procedures apply, and how the book for quick and reliable exemptions and is recommended somewhat more problematic. exemptions might apply to a reference to the provisions of background reading before the FOI Act. Accordingly, the taking on the detail of individual bulk of the text is devoted to exemptions. For instance, do not the Act itself. Chapter 3 is presume to know what is meant dedicated to matters of internal by the schizophrenic term nd (third edition) organisation in public bodies. ‘public interest’ until you have 1998), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-899738-76-2. Price: £62. The scope of access, the read the relevant passages here. manner of applying for The author devotes a full principles of judicial review, become even more disclosure and options for chapter to each exemption. constitutional justice, control indispensable. Based on redress are dealt with in later The provisions themselves over discretionary powers, the meticulous research, with grace chapters. are analysed in some detail. application for judicial review, and verve, Ireland’s foremost The thorny question of However, much of the context the scope of public law, scholars in administrative law exemptions takes up well over comes from comparisons with damages, legitimate expectations have produced an authoritative, half the book, and this should experience in other FOI and estoppel and, finally, the brilliant and enlightening be no cause for surprise. The regimes. In the absence of Irish State and litigation. masterpiece, a major Act attempted to codify much FOI case law, there is liberal As administrative law issues contribution to Irish law. G of the common law case law on reference throughout to grow more pronounced and FOI exemptions in its legal relevant international complicated in Ireland, Hogan Dr Eamonn Hall is Company provisions in order to avoid precedents, especially from and Gwynn Morgan have Solicitor of Eircom plc. excessive litigation consequent Australia, Canada and the

Irish family legislation The law of road transport Trade union membership Probate law and practice handbook and haulage and the law Albert Keating Muriel Walls and David Bergin James K Canny Cathy Maguire Round Hall (1998), Jordan Publishing, Round Hall (1998), Round Hall (1998), 43 Fitzwilliam Place, Dublin 2. 21 St Thomas Street, 43 Fitzwilliam Place, Dublin 2. 43 Fitzwilliam Place, Dublin 2. ISBN: 1-899738-90-8. Bristol BS1 6JS, England. ISBN: 1-899738-87-8. ISBN: 1-899738-74-X. Price: £89. ISBN: 0 85308 500 5. Price: £45. Price: £35. Price: £45. Contract law in Ireland The law of meetings Dangerous driving cases (fourth edition) Report on gazumping Michael Maloney and Gerard O’Keeffe and Niall Hill Robert Clark Law Reform Commission, IPC Jarlath Spellman Round Hall (1998), Round Hall (1998), House, 35-39 Shelbourne Road, Round Hall (1998), 43 Fitzwilliam Place, Dublin 2. 43 Fitzwilliam Place, Dublin 2. Ballsbridge, Dublin 4. 43 Fitzwilliam Place, Dublin 2. ISBN: 1-899738-44-4. ISBN: 1-899738-83-5. ISSN: 1393-3132. ISBN: 1-899738-62-2. Price: £69. Price: £89. Price: £5. Price: £39. Working within the law The capital markets: Irish and Insurance law in Ireland The Civil Liability Acts (second edition) international law and regulations Attracta O’Regan Cazabon Anthony Kerr Frances Meenan Agnes Foy Round Hall (1998), Round Hall (1998), Oak Tree Press, Merrion Building, Round Hall (1998), 43 Fitzwilliam Place, Dublin 2. 43 Fitzwilliam Place, Dublin 2. Lower Merrion Street, Dublin 2. 43 Fitzwilliam Place, Dublin 2. ISBN: 1-899738-68-1. ISBN: 1-899738-92-4. ISBN: 1 86076 073 2. ISBN: 1-899738-54-1. Price: £85. Price: £19.95. Price: £26.95. Price: £98. BOOKS PUBLISHED

37 Law Society Gazette Jan/Feb 2000

Books

United States. It is likely that, privilege, and typically occur For those with an academic sioner, all of whose decisions for the foreseeable future, where State bodies are being interest, the author outlines the are quickly published – much reliance will be placed on established. The author very background to the FOI Act and although somewhat after the such case law, particularly from helpfully devotes a chapter to the development of FOI in publication of this work. It is the Australian and Canadian this problematic interface, other common-law jurisdic- probably through the commis- systems, both of which which in no small manner tions. The comparative sioner’s office that most FOI influenced the Irish Act. constrains disclosure of official credentials of the book are developments will take place in As FOI directly challenges information. The author also evidenced by the detail in the the coming years, and readers administrative secrecy, the Act dedicates substantial attention tables on international cases of this book will gladly has come into close contact to three specific instruments and legislation. As concerns welcome their incorporation with an array of statutes which more closely related to the FOI Ireland, while there is very into a future edition. G for various reasons impose Act: the Data Protection Act, the little case law in the pipeline, a prohibitions on disclosure. National Archives Act and the large volume of FOI dispute David Meehan is a Dublin These are grounded on Access to Information on the resolution is being conducted solicitor and environmental concerns of confidentiality and Environment Regulations. by the Information Commis- consultant.

Powers of Attorney Act, 1996 Brian Gallagher. Round Hall Sweet & Maxwell (1998), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-85800-112-9. Price: £19.95.

his annotation of the hand: ‘AB (the donor) by his or regulations are quite technical ‘affairs’ of the donor. Trelevant legislation her attorney CD (the donee)’ and ought to be followed The book contains the concerning powers of attorney who then signs his or her slavishly. practice direction for the reproduces in full the Powers of own name. If the form of the power of registration of an enduring Attorney Act, 1996, with attorney does not follow the power of attorney. However, in excellent commentaries on each In relation to the revocation of directions set out in the due course rules of court will section by Brian Gallagher, powers of attorney, he states: regulations, then a court provide for a simpler appli- who also refers to relevant case ‘The donor can revoke it at any application may be required to cation for registration to be law. The book includes the time unless it is an irrevocable confirm its validity. As he points made to the Registrar of statutory instruments made power. It appears that the revo- out: ‘No practitioner will want Wards of Court. under the Act, which among cation can be oral, in writing or to run the risk of having to In the first schedule, other things prescribe the form by deed, but it is ineffective until make an application to the court part A, of the explanatory of an enduring power of it is received by the donee’. (and presumably pay the costs memorandum to the Enduring attorney, and reproduce the He also warns practitioners thereof) because he or she was Powers of Attorney Regulations practice direction relating to that anyone relying on an not careful enough in preparing 1996 (SI No 196/1996), it is the registration thereof. enduring power should check the enduring power’. stated that where the attorneys The Act, while providing for the register of Registered On the subject of gifts, he are appointed jointly they must an enduring power of attorney, Enduring Powers of Attorney in confirms that in common law an all act together and cannot act also makes certain amendments the Wards of Court Office to attorney has no power to make separately; but when they are and improvements to the law ensure that the registration of gifts or to make a will for the appointed jointly and severally, relating to powers of attorney the enduring power has not donor. However, section 6(5) of they can all act together, but generally and amends the been revoked. And he reminds the Powers of Attorney Act, 1996 they can also act separately if Conveyancing Act 1881. Gallag- us that section 5 of the Family gives the donee the power to they wish. If the enduring her sets out how the law, as Law Miscellaneous Provisions Act, make certain gifts in certain power does not specify how the contained in the Conveyancing 1997 makes a couple of circumstances. If an attorney is attorneys are to act, they shall Acts 1881 and 1882, has been amendments to the legislation to be given a power to make be deemed to have been amended by the Powers of regarding ordinary powers of gifts as authorised by the Act, appointed to act jointly. Attorney Act, 1996. He also attorney. then this power should be There are many more very suggests the best practice in In relation to enduring specifically inserted in the helpful comments and points relation to the execution of powers of attorney, Gallagher enduring power of attorney which clarify the legislation in deeds by the donee of a power confirms that while the Act document as drafted. this extremely useful and of attorney, which is as follows: permits the attorney to make Gallagher also clarifies that it practical book. It is essential •The deed is prepared in the personal care decisions, these is possible to make one reading for anyone with name of the donor decisions do not empower the enduring power of attorney queries relating to the Powers • The attestation clause states donee to make decisions conferring on a certain attorney of Attorney Act, 1996 and the that the deed is executed on regarding the donor’s medical the power to make personal care regulations made under it. G behalf of the donor by the treatment. In relation to the decisions, and a second attorney regulations on the format of enduring power conferring on a John Costello is an associate • The donee executes by enduring powers of attorney, he different attorney the power to solicitor with the Dublin solicitors’ writing in his or her own warns practitioners that the make decisions relating to the firm Eugene F Collins.

39 Law Society Gazette Jan/Feb 2000 Briefing Report on Council meeting held on 1

Patrick A Glynn was deeply honoured to have The Council considered exam- 24 months for full completion. The Council made a presenta- been appointed President. On ples of circumstances in which The system operated to the tion to Patrick A Glynn to mark behalf of the Council and the stage payments were used, detriment of purchasers and his retirement from the Council profession, he paid tribute to together with a summary of the he fully supported the motion. after 21 years of distinguished Patrick O’Connor who had rep- contents of letters received from The Council unanimously service. resented the profession with members of the profession in approved the motion and it energy and enthusiasm during relation to the motion. John was agreed that the Director New Council members his year of office and who had Harte said that the principal General would write both to The Council welcomed its projected a very high profile for reasons given by those in favour the Minister for the Environ- newly-elected members, Stuart the profession during the previ- of stage payments focused on ment and Local Government Gilhooly and Thomas Murran, ous 12 months. the benefits to builder clients. and the Director of Consumer together with the new nominees The Senior Vice-President, Stage payments operated to the Affairs. from the SLA, Patrick Casey Ward McEllin, and the Junior benefit of builders, who and Patricia Harney, and from Vice-President, Owen Binchy, obtained full payment without Motion: apprentices’ salaries the DSBA John O’Connor, and both then took office and any risk, and it was the strongly- ‘That this Council recommends wished them well for their term pledged their support to the held view of the Conveyancing that, with effect from 1 January of office. President and the Council for Committee that they were 2000, apprentices should be paid the coming year. unfair and biased in favour of the following salary: Taking of office by President builders. Sean Durcan said that • £155 per week for the first six and Vice-Presidents Motion: stage payments stage payments increased work months following completion The outgoing President, Patrick ‘That this Council is opposed to the for solicitors and profit for of the professional practice O’Connor, thanked the practice by some builders/ develop- builders. While there might course Council, the Director General ers of including in building con- have been some justification for • £235 for the remaining period and staff of the Society, his wife tracts for new houses that the pur- the system when interest rates spent in the office of the mas- Gillian and their four children chase price be paid by way of stage were high, this justification no ter; for their tremendous support payments and requests the longer pertained. during the past year. He Minister for the Environment and Simon Murphy said that, and that the recommended salary expressed his best wishes to the Local Government to make the under the stage-payments sys- for apprentices’ pre-professional incoming President, Anthony necessary regulations to prohibit tem, builders received 90% of practice course should be raised to Ensor, who was then formally this.’ the cost of the house prior to £135 per week.’ appointed to office by the Proposed: John B Harte completion, with the pur- Proposed: Owen Binchy Council. Mr Ensor said that he Seconded: Sean Durcan chasers often having to wait 18- Seconded: Michael Peart Report on Council meeting held on 1 Law Society of Northern Council and the profession in already made it an offence for an equivalent fee of £1,082 for Ireland opposition to any erosion of the anyone, including a solicitor, to those less than three years’ qual- The Council approved the principle of solicitor/client con- engage in or facilitate money- ified. appointment of Catherine fidentiality. The Director laundering and that the Minister Dixon, Colin Haddick, John General had given a comprehen- had the power, under section Library and restaurant Meehan, Alistair Rankin and sive account of the basis upon 32(10A), to exempt solicitors facilities John Neill as nominees of the which the Council objected to from any of the obligations The Director General reported Law Society of Northern Ireland the proposal and had emphasised imposed by the Act, particularly that, because of the develop- to the Council for 1999/2000. that, if solicitors were obliged to the reporting obligation under ments in education and the report suspicions in relation to section 57. The meeting had increased numbers of students Proposed designation of solici- their clients, this would repre- concluded with an assurance on site after October 2000, there tors pursuant to section 32 of sent a fundamental breach of the from the Minister that he would was a requirement for increased the Criminal Justice Act, solicitor/client relationship. Mr be in contact in due course. restaurant facilities, study areas 1994 Fish had outlined developments and computer terminals in the John Fish reported on the meet- at a European level and had Practising certificate south wing of the Blackhall Place ing with the Minister for Justice, queried the wisdom of designa- fee for 2000 premises. As a result, it had been Equality and Law Reform to dis- tion at a time when a new EU The Council discussed the vari- agreed by the Finance Commit- cuss the proposed designation of directive was being considered. ous elements of the practising tee to relocate the library to the solicitors. At the outset, the Deputy Director General certificate fee for 2000 and existing lecture hall, with a mez- President had outlined the Mary Keane had concentrated approved a full-rate fee, inclusive zanine floor, thereby doubling strongly-held views of the on the fact that section 31 of membership, of £1,300, with the available space for both

40 Law Society Gazette Jan/Feb 2000 Briefing 12 November 1999

The Council unanimously by the Council. It was agreed that proposed designation of solici- Land Registry approved the motion. Mr Irvine should make contact tors under section 32 of the John Harte reported that a new with the Bar Council and that the Criminal Justice Act, 1994. It was Land Registry fees order was Motion: Establishment working group should com- agreed that the Society should be due to come into effect in directive mence discussions with the represented at the meeting by February. One of the provisions ‘That this Council agrees (a) to department. the President, the Director of concern to the Conveyancing place before the Minister for General, John Fish and Deputy Committee was the introduc- Justice, Equality and Law Reform Revenue audits of solicitors: Director General Mary Keane. tion of penalties where dealings the papers marked ‘A’ and ‘B’ in access to client account infor- were withdrawn and re-submit- the documentation on Directive mation Professional indemnity ted. He also reported that the 98/5/EC (the Establishment The Council discussed the out- insurance Land Registry had established a directive) enclosed herein and for come of representations made by Ward McEllin sought, and user group to discuss various a working committee of the the Taxation Committee to the obtained, the Council’s approval issues, including difficulties Society, in conjunction with the Revenue Commissioners in rela- for amending Professional indem- arising from the 75,000 dealings King’s Inns, to commence discus- tion to information sought in the nity insurance regulations (a) in arrears. The Registrar of sions with officials of the said course of audits of solicitors’ updating the definition of ‘legal Titles had indicated that, from Ministry with a view to bringing practices. A number of recom- services’ to reflect the amend- January to April 2000, the reg- forward a statutory instrument on mendations from the committee, ment made by the Investor istry would not respond to let- this matter, and (b) in particular, which would provide the neces- Compensation Act, 1998, and (b) ters from solicitors enquiring as to accept the principal recommen- sary verification of transactions reducing the mandatory period to the state of their dealings and dations of the EU and while preserving the confiden- of run-off cover where a solicitor priority would be given to the International Law Committee set tiality of client information, were was ceasing practice from six issuing of copy folios. out on the paper marked ‘C’ approved. years to two years. He explained attached herein.’ that the purpose of the latter Approval of motions Proposed: Michael Irvine Proposed designation of solici- amendment was to equalise the passed at the annual Seconded: Michael Carroll tors pursuant to section 32 of requirements for solicitors within general meeting the Criminal Justice Act, 1994 and outside the assigned risks As required under bye-law Michael Irvine outlined the The Council noted that a meet- pool. However, the Society 4(10)(a), the Council approved basis for each of the recommen- ing had been scheduled with the would emphasise the prudence of the motions which had been dations of the EU and Minister for Justice, Equality and any solicitor retiring and discon- passed at the annual general International Law Committee Law Reform to discuss the tinuing his practice to continue meeting held on the previous and each was approved, in turn, Society’s concerns regarding the run-off cover for at least six years. evening. G

10 December 1999 SOLICITORS’ members and students. Study Company Law Reform areas and computer terminals Group HELPLINE would also be provided, and the On behalf of the Council, the restaurant facilities were to be President extended congratula- expanded into the existing tions to Tom Courtney, solici- The Solicitors’ Helpline library area. As the Education tor, on his appointment as is available to assist every Centre was opening in October chairman of the Company Law member of the profession 2000, the work on the south Reform Group, which repre- with any problem, whether wing was likely to commence in sented a significant honour for personal or professional. February 2000. the profession. The Director General con- The service is completely Conveyancing firmed that the majority of the confidential and totally required expenditure was already The Vice-Chairman of the provided for in the education Conveyancing Committee, independent of the Law budget. It was consequential on Philip Joyce, reported that a Society. the decision to construct the new new fees order for the Registry Education Centre envisaged in of Deeds would come into If you require advice for the decision which was made by force on 1 February 2000. Fees any reason, phone: the profession to accept the for registrations were being 01 284 8484 01 284 8484 Report of the Education Policy increased to £35, with a £10 fee Review Group. for re-submission of a deed. G

41 Law Society Gazette Jan/Feb 2000 Briefing Committee reports

PRACTICE Law Society website in the mem- ty, contact Claire O’Sullivan at companies off the register MANAGEMENT bers’ area under What’s new. [email protected] or tel: more easily. Claire O’Sullivan (c.osullivan@ 01 672 4800. Turnover of support staff lawsociety.ie) can provide printed Irish Listing rules The Practice Management copies and assist with queries. Companies (Amendment) Bills, The Green pages, officially the Committee is concerned at the Anthony Brady, Practice 1999: update Notes on the listing rules have been high turnover of support staff in Management Committee Nos 1, 2 and 3 are enacted: No 3 updated as of 3 December 1999. solicitors’ offices, particularly in as the Companies (Amendment) They are available in hard copy the Dublin area, and is interested Act, 1999 and Nos 1 and 2 as the from the Irish Stock Exchange, in hearing from members of the REGISTRAR’S Companies (Amendment) (No 2) 28 Anglesea Street, Dublin 2 and profession with regard to the Act, 1999. No 4 is not enacted at http://www.ise.ie/search/frgener- provision of training for support Section 68 letters yet. al.htm. staff in solicitors’ offices. If prac- The Registrar’s Committee titioners have engaged the serv- would like to remind solicitors of Companies (Amendment) Act, Stamp Duty Consolidation Act, ices of training providers in the their obligations under section 1999. This deals with stabilisa- 1999 past, the committee is keen to 68(1) of the Solicitors tion rules on public offerings of This is now enacted. The law has hear of their experiences, partic- (Amendment) Act, 1994. Failure to shares and was brought in with not changed but is restated. ularly with regard to the quality comply with the statutory obliga- the Bord Telecom Éireann plc Business Law Committee of training provided and may tion to confirm details of costs in flotation in mind. also be interested in the possibil- writing will be taken into account ity of compiling a database of by the committee if a complaint is Companies (Amendment) (No CONVEYANCING training providers at a future made by the client about fees. 2) Act, 1999. This Act was date. If you would like to share Solicitors are also reminded of passed in December 1999 and is Registry of Deeds (Fees) Order your views on this subject, please the recommendation made by the in the process of being imple- 1999 (SI 346/1999) and Land contact the secretary of the Independent Adjudicator of the mented on a gradual basis. Parts Registration (Fees) Order Practice Management Commit- Law Society that as a matter of I, II and III will be in force by 21 1999 (SI 343/1999) tee at the Law Society. good practice solicitors should February. Part I is the introduc- The Conveyancing Committee Practice Management confirm their clients’ instructions tory part, part II is concerned regrets that the Minister for Committee in writing as soon as is practical. with examinerships, and part III Justice did not consult the Law This communication could be removes the requirement for the Society prior to signing these Safety statements combined with the section 68 let- audit – but not accounts – of very statutory instruments which The Practice Management ter. small companies. Part IV was contain provisions that, we Committee has produced a draft not, as at 21 January, the subject believe, will cause hardship to safety statement for solicitors’ of any commencement order. house purchasers and difficulties offices. As you are aware, this BUSINESS LAW to solicitors. The statutory document is a requirement Part IV of the No 2 Act. When instruments provide for a sub- under the health and safety legis- Guide to the Consumer enacted, this will have the follow- stantial increase in Registry of lation. It sets out the health and Credit Act, 1995 ing consequences: Deeds fees (which came into safety procedures that a solici- Practitioners should note that the •A requirement to specify effect on 1 February) and Land tor’s office might adopt and Business Law Committee has exactly what a new company Registry fees (coming into effect records who is responsible for prepared a guide to the Consumer will do (thereby rendering it on 1 May) which will not be wel- their implementation. Credit Act, 1995. The guide is difficult, if not impossible, to comed by house purchasers at The safety statement is a draft available for consultation on the form shelf companies) this time of grossly inflated only and should be adapted for members’ area of the Law Society •A requirement for new com- house prices. use by each office in accordance website under Professional infor- panies to have an Irish director with the legislation and their mation. To access the guide, sim- or an Irish activity or a bond Land Registration own circumstances. The purpose ply click on the members’ area for £20,000 (Fees) Order of producing the draft is to icon on the Law Society home- • An ability, at last, for resigning There is no longer a maximum remind practitioners of the page. Enter your solicitor num- directors to notify the fact of fee per transaction (previously necessity and good sense of hav- ber preceded by an ‘s’, together their resignations to the £250). In some cases, the fees ing one and to give them a start- with your surname on the log-in Companies Registration have more than doubled. This ing point in the drafting of their page. The members’ area icon Office where the company increase in fees can only be a fur- own safety statement. can be found on the left naviga- does not ther inflationary factor in house The draft is available on the tion bar. If you have any difficul- • The CRO being able to strike prices which will be a further

42 Law Society Gazette Jan/Feb 2000 Briefing burden on house purchasers. For will, we have no doubt, lead to example, a property costing Practitioners are advised to obtain copies of the new resentment by solicitors and £40,001 will attract a fee of £300, fees orders and start advising clients as soon as possible their clients. We believe the together with a further fee of £50 of the new rates. Solicitors should ensure that provision imposition of the penalties is not if a new folio is to be opened, and is made now in section 68 letters or draft/estimates of the way to secure co-operation – costs and outlays for the new fees in transactions due to a fee of £100 if there is a mort- NOTE quite the contrary. gage – total: £450. Most people be lodged for registration after 1 May 2000 so that they While the committee appreci- would not even be able to will be able to comply with their undertakings in ates the improvements which acquire a site for a house for certificate of title cases. Note that the new fees apply have been made by the present £40,000 or less, with the result even if the transaction was closed prior to 1 May 2000 registrar, these increased fees and that nearly all purchasers coming if application for registration is made after that date. new heads of charge are imposed in even at the lower end of the at a time when dissatisfaction fees scale will pay a minimum of among the profession with the £450 for a transaction currently cost which builders will presum- imposing a charge where a full services provided by the Land costing £250. The fee for regis- ably pass on to purchasers of new recomparison is necessary, in the Registry – and particularly the tering a house costing over houses, together with the further view of the committee there is no delays in providing them – is £200,000 with a mortgage has additional fee of either £500 or justification for making an extra running at a high level. The reg- gone from £250 to £550. £1,000 should the scheme map charge where there are minor istries have asked the profession In relation to a voluntary have to be revised at a later date. queries, and certainly no justifi- to be patient with the current transfer, the present fee is £30 The committee also takes cation where the queries are restrictions on telephone access and this has been more than exception to items 24 and 25. themselves incorrect. We have and in dealing with routine doubled to £70. If the voluntary Item 24 imposes a penalty on the no doubt but that this charge will enquiries while they try to catch transfer concerns part of a folio applicant of either £50, or the fee cause a degree of friction. up on a backlog of dealings (as would be quite common with already paid, whichever is the In our view, the imposition of awaiting registration. In addi- the transfer of sites in rural areas lesser, where an application for this penal charge, which is inci- tion, the Land Registry has from parent to child), a further registration is refused, aban- dentally quite anti-consumer, is sought the co-operation of the fee of £50 for opening the new doned or withdrawn. Item 25 entirely unjustified and is the profession in using its experi- folio will be chargeable, bringing imposes an extraordinary penalty wrong way to go about improv- mental form 17. To date this has the total sum to £120 – that is, when the only mistake made by ing the efficiency of the Registry resulted in a huge increase in the four times the previous fee. If the the applicant is to pay a fee which of Deeds. The big problem in the number of dealings rejected by transferee then takes a loan to exceeds the correct fee. It must registry, as all solicitors will no the registry, much to the build a house, there will be an be unprecedented for a statutory doubt be aware, is the cumber- increased frustration of the pro- additional fee of £100 – a total of service provider to impose such some format of the memorial fession which sees no latitude £220. penalties on its consumers. The prescribed by the 1707 and 1832 whatever being exercised by reg- The fee for registration of a committee strenuously opposes Acts. The solution is to simplify istry staff in the use of the new transfer order under section 90 penalties levied for administra- the form of memorial. The Law form. The profession is asked on of the Housing Act, 1966 has been tive inconvenience. Society has sought amending leg- the one hand to embrace new increased by a multiple of 14 islation frequently in its discus- systems while on the other it is from £5 to £70 – again, this is a Registry of Deeds sions with the Registrar of Titles. also asked to bear the brunt of measure which the committee (Fees) Order Legislation empowering the inadequate lead-in times for the would be concerned would cause The provision in this fees order Minister for Justice to prescribe a implementation of these systems difficulty to people on low to which the committee takes simpler form of memorial would with little or no transitional incomes who are likely to avail of particular exception is the new be very straightforward, and is arrangements or allowances such transfers. The new folio fee head of charge relating to the long overdue. made for a familiarisation period of £50 and a mortgage fee of recomparison of deeds. This on the implementation of these £100 would also be chargeable head of charge never previously Co-operation new systems. The profession and where a purchaser is getting a existed, going right back to 1707. The committee is very anxious the public are, in the view of the loan. There was always one charge to that conveyancing should be sim- committee, entitled to ask what The fee for a certified copy of register a deed, being stamp duty plified rather than being made they will get in return, not only a map showing rights of way has on the memorial. We can only more complicated and, indeed, for their forbearance in the face been increased from £20 to £50. assume that the reason for this confrontational. Over the last 40 of long delays but also for the This is a significant fee when one new head of charge is to impose years or so, the burden of con- current increase in fees, and they thinks of how frequently clients a penalty when the Registry of veyancing has been greatly are also entitled to know when in rural areas require maps of Deeds raises a query on the increased. The committee very they may expect to see the long their rights of way, and again this memorial. While the committee strongly resists the further bur- overdue improvements in the is something the committee is understands that some memori- dens which these fees orders services offered by the registries most concerned about. als are queried for a valid reason, impose. The Law Society and the and the elimination of delays in Item 22 of the Land it is the experience of practition- Registrar of Titles have always the provision of those services. Registration (Fees) Order is a new ers that memorials are also some- enjoyed very good relations, and Unfortunately, the increases and charge of £250 for approving a times queried for reasons which have always worked in close co- new heads of charge have been scheme map for new building are not valid. While there may, operation. The imposition of the imposed with no corresponding estates, which will be yet another perhaps, be some justification for penalties by the two fees orders guarantees of increased staffing,

43 Law Society Gazette Jan/Feb 2000 Briefing improved service or indeed new the 1707 and the 1832 Acts to local public representatives that tioners who experience difficul- services, and the committee feels provide for a simplified form of the profession was not made ties with the Land Registry or the that this is indeed regrettable. memorial would greatly alleviate aware of the level of registration Registry of Deeds, either in The Director General has the difficulties in relation to the fee increases being sought or of relation to delays in service or written to the Minister for present form of memorials and the new heads of charge until in relation to the new fees Justice urging him to reconsider that the committee would be after the fees orders were pub- orders, should contact the Law the two fees orders, with a view very willing to assist in the lished, and that it strongly Society, c/o the Conveyancing to simplifying the heads of preparation of this legislation. opposes them. Committee, as the Society would charge, removing the penalty Pending receipt of a response It is to be hoped that the like to have an indication of the provisions and moderating the from the Department of Justice, Minister will reconsider the fees level of difficulties being experi- increases. With regard to the the committee is of the view that orders as requested and the enced by the profession as a Registry of Deeds, the Minister the profession and its individual Society will keep members whole. has been advised that the intro- members at local level should updated on any progress on this Brian Gallagher, Chairman, duction of a simple Bill to amend make it clear to clients and to front. In the meantime, practi- Conveyancing Committee

PRACTICE NOTES Dublin Circuit Criminal involved in the process. The co- Court and in refugee cases. The of the Department of Justice, Court call-over operation of all concerned is new fees are £143.37, with a Equality and Law Reform to Solicitors who have cases listed required if these improvements fee of £35.85 for each subse- refuse recognition of refugee for the above court are remind- are to be sustained. quent day. The unanimous rec- status. ed that it is essential that they Criminal Law Committee ommendation of the Family Law The Society accepts that it is attend the Wednesday call-over and Civil Legal Aid Committee a matter for each individual of cases for hearing on dates Legal Aid Board: fees payable was that the Society should not solicitor to decide whether or starting the following Monday to private practitioners endorse the participation of pri- not to participate in the week. Solicitors have a duty to The Law Society has been vate practitioners at this level of scheme, but the Society is the court to advise as to the advised by the Legal Aid Board fee. The Society believes that encouraging solicitors to with- status of such cases. The call- that the Department of Finance the fee does not reflect in any hold their support pending the over takes place in Court no has sanctioned an increase in way the amount of time involved establishment of a realistic fee 26. The recent improvements in fees payable to private practi- in the preparation of a family structure. the listing system have been tioners for legal aid work in fam- law matter in the District Court Family and Civil Legal widely welcomed by all those ily law cases in the District or an appeal against a decision Aid Committee

LEGISLATION UPDATE: 16 NOVEMBER – 31 DECEMBER 1999

ACTS PASSED Number: 30/1999 Commencement date: 21/12/ Contents note: Amends the Appropriation Act, 1999 Explan-memo: Yes, with Comp- 1999 for part I of the Act (prelimi- Fisheries (Amendment) Act, 1980 Number: 34/1999 anies (Amendment) (No 2) Bill, nary and general) and certain pro- in relation to the composition and Explan-memo: No 1999 visions of part III (ss33(2), 33(3) functions of the Central Fisheries Contents note: Appropriates to the Contents note: Amends the and 33(7)) (request not to avail of Board and Regional Fisheries proper supply services and purpos- Companies (Amendment) Act, exemption from statutory audit Boards, and related matters; es sums granted by the Central 1990, relating to examinership; requirements being provided for in amends the Fisheries (Amend- Fund (Permanent Provisions) Act, amends the Companies Acts, this part) and certain provisions of ment) Act, 1991 to provide for the 1965; makes certain provisions in 1963 to 1990 in relation to the part IV (ss40, 41, 52 and 53, and appointment of management com- relation to financial resolutions removal of the statutory audit s54 in part) (miscellaneous provi- mittees of Fisheries Co-operative passed by Dáil Éireann on requirement for certain private lim- sions); 1/2/2000 for part II of the Societies and for related purposes; 1/12/1999, and provides for the ited companies and partnerships; Act (amending the law in relation to makes consequential amendments payment to the Minister for Health prohibits the formation of a com- examiners) and the second sched- to the Fisheries (Consolidation) and Children of certain monies col- pany unless it appears to the ule in so far as it relates to part II; Act, 1959; amends the Marine lected in respect of the duty of Registrar of Companies that the 21/2/2000 for the remaining pro- Institute Act, 1991, and provides excise imposed by s2 of the company will carry on an activity in visions of part III (removal of statu- for related matters Finance (Excise Duty on Tobacco the state; requires one of the direc- tory audit requirements); 24/12/ Date enacted: 17/12/1999 Products) Act, 1977 tors of a company to be a person 2000 for s54(1)(a) insofar as it is Commencement date: 20/12/ Date enacted: 16/12/1999 resident in the state; amends not already in operation (per SI 1999 for all sections of the Act, Commencement date: s240 of the Companies Act, 1990 406/1999) except s23 (per SI 419/1999) 16/12/1999 and s16 of the Investment Limited Partnerships Act, 1994 and pro- Fisheries (Amendment) Act, 1999 ICC Bank Act, 1999 Companies (Amendment) (No 2) vides for related matters Number: 35/1999 Number: 29/1999 Act, 1999 Date enacted: 15/12/1999 Explan-memo: Yes Explan-memo: Yes

44 Law Society Gazette Jan/Feb 2000 Briefing

Contents note: Makes the neces- for social welfare pensions and the daily charge for in-patient serv- Road Traffic Act, 1994 (Section sary legislative provisions to facili- one for public service pensions ices and the maximum amount 17) Regulations 1999 tate the sale of ICC Bank plc. Date enacted: 16/12/1999 payable in any period of 12 consec- Number: SI 326/1999 Provides for the disposal by the Commencement date: utive months to £26. Exemption for Contents note: Prescribe the form Minister for Finance of shares in 16/12/1999 medical card holders and hardship of the statements to be produced the bank and the issue of shares in Commencement date: 1/1/2000 by an apparatus for determining the it for the purposes of the employee SELECTED STATUTORY concentration of alcohol in the share ownership trust. The Act also INSTRUMENTS Health (Out-Patient Charges) breath pursuant to s17 of the Road makes provision in relation to cer- Circuit Court Rules (No 1) (Amendment) Regulations 1999 Traffic Act, 1994, and prescribe the tain guarantees of the borrowing of (Organisation of Working Time Number: SI 402/1999 manner in which the statements ICC Bank, provision for additional Act, 1997) 1999 Contents note: Amend the Health are to be completed by a member borrowing by the bank and for the Number: SI 373/1999 (Out-Patient Charges) Regulations of an Garda Síochána repeal of the ICC Bank Acts, 1933 Contents note: Insert a new order 1994 (SI 37/1994) – as amended Commencement date: to 1997, as well as certain other 63B into the Circuit Court rules by the Health (Out-Patient Charges) 22/10/1999 related matters. The Act also pro- 1950 which prescribes procedures (Amendment) Regulations 1997 vides for additional borrowing by for applications brought under s29 (SI 509/1997)) – by raising the Road Traffic (National Car Test) ACC Bank plc of the Organisation of Working charge to £25 in respect of atten- Regulations 1999 Date enacted: 15/12/1999 Time Act, 1997 dance at accident and emergency Number: SI 395/1999 Commencement date: Commence- Commencement date: or casualty departments where the Contents note: Specify the vehicles ment order/s to be made per 6/12/1999 person concerned has not been liable for tests, exemptions and s10(3) referred by a medical practitioner. operative dates; require a test disc Circuit Court Rules (No 2) The charge will not apply where to be displayed on a liable car and Intoxicating Liquor Act, 1999 (Data Protection Act, 1988) such an attendance results in hos- a test certificate to be provided Number: 32/1999 1999 pital admission. Exemption for when taxing a car; prescribe proce- Explan-memo: Yes Number: SI 374/1999 medical card holders and hardship dures in relation to car testing Contents note: Amends and Contents note: Insert a new order Commencement date: 1/1/2000 Commencement date: 4/1/2000 extends the Licensing Acts, 1833 63C into the Circuit Court rules to 1997, and the Registration of 1950 which prescribes procedures Land Registration (Fees) Solicitors Acts, 1954 to 1994 Clubs Acts, 1904 to 1995, to for appeals brought under s26 of Order 1999 (Professional Indemnity make provision for licensed prem- the Data Protection Act, 1988 Number: SI 343/1999 Insurance) (Amendment) ises to remain open until 1.30am Commencement date: 25/11/ Contents note: Provides for Regulations 1999 on 1/1/2000 for the celebration of 1999 (date of signing of rules by increases in Land Registry fees Number: SI 362/1999 the Millennium Minister for Justice) from 1/5/2000; revokes the previ- Contents note: Substitute a new Date enacted: 15/12/1999 ous fees order (SI 363/1991) definition of ‘legal services’ for the Commencement date: Criminal Justice (Legal Aid) definition contained in regulation 15/12/1999 (Amendment) Regulations 1999 Local Government (Planning and 2(a) of the Solicitors Acts, 1954 to Number: SI 385/1999 Development) (No 2) Regulations 1994 (Professional Indemnity Stamp Duties Consolidation Contents note: Provide for an 1999 Insurance) Regulations 1995 (SI Act, 1999 increase of 1.5% with effect from Number: SI 431/1999 312/1995) to make it consistent Number: 31/1999 1/7/1999 and 1% with effect from Contents note: Provide for a num- with the definition contained in s2 Explan-memo: Yes 1/4/2000 in the fees payable ber of matters under the Local of the Solicitors (Amendment) Act Contents note: Consolidates the under the criminal legal aid Government (Planning and 1994, as amended by the legislation relating to stamp duties scheme to solicitors for atten- Development) Act, 1999. Both the Investment Compensation Act, and the management of those dance in the District Court and for Act and the regulations came into 1998; amend the definition of ‘run- duties appeals to the Circuit Court, and to force on 1/1/2000 off’ cover in regulation 2(a) to pro- Date enacted: 15/12/1999 solicitors and barristers in respect vide that the mandatory period of Commencement date: of essential visits to prisons and Registry of Deeds (Fees) run-off cover be reduced from six 15/12/1999 other custodial centres (other than Order 1999 years to two years Garda Stations) and for certain bail Number: SI 346/1999 Commencement date: 1/1/2000 Temporary Holding Fund for applications Contents note: Prescribes fees Superannuation Liabilities Act, payable in the Registry of Deeds Prepared by the Law Society 1999 Health (In-Patient Charges) Commencement date: 1/2/2000 Library Number: 33/1999 (Amendment) Regulations 1999 Contents note: Provides a tempo- Number: SI 401/1999 Copies of the above Acts and statutory instruments are held in the rary holding fund for exchequer Contents note: Amend the Health Law Society Library. They may be purchased from Government moneys set aside in 1999 – pend- (In-Patient Charges) Regulations Publications in person at the Sales Office, Sun Alliance House, ing the enactment of detailed leg- 1987 (SI 116/1987) – as amend- Molesworth Street, Dublin 2, or by post or fax from Government islation – providing for the estab- ed by the Health (In-Patient Publications Postal Trade Section, 4-5 Harcourt Road, Dublin 2, tel: lishment and on-going manage- Charges) (Amendment) Regulations (01) 6613111, fax: (01) 4752760. ment of two separate funds, one 1997 (SI 510/1997) – by raising

45 Law Society Gazette Jan/Feb 2000 Briefing

Personal injury judgments

Public liability – forklift colliding with person – injury to back and depression – fruit and vegetable dealer and farmer – credibility of plaintiff – issues of law relating to assessment of damages – income tax affairs – legal questions in relation to loss of earnings CASE Michael McNeela v Sam Dennigan & Co Ltd and Laurence Mooney, High Court, before Ms Justice Laffoy, judgment of 4 May 1999. THE FACTS ichael McNeela, 50 years strong dosage of painkillers. al acres of land in 1994. very gloomy view about his Mof age, was standing on The GP referred him to a Subsequently, in January future and his ability ever to the road alongside the pavement consultant orthopaedic surgeon 1996, an MRI scan revealed return to work or lead any kind at St Mary’s Lane near the fruit in Galvia Hospital. The extensive degenerative changes of normal life. At times he felt and vegetable market in Dublin, orthopaedic surgeon’s clinical at the L5/SI disc area with life was not worth living. at about 10.15am on 28 August diagnosis was of acute twisting early degenerative changes at In June 1996, the GP 1995, when a forklift came from and a muscular injury to Mr L4/L5 level but no direct signs referred Mr McNeela to a con- behind him and collided with McNeela’s lower back. X-rays of nerve root entrapment, no sultant urologist in connection him. The forklift went over his revealed some degenerative significant bulging or protru- with Mr McNeela’s complaint left foot and knocked him to the change at the base of the lumbar sion of the disc, no signs of of erectile dysfunction which ground. Immediately following spine which pre-dated the acci- nerve root impingement and manifested itself in January the accident, Mr McNeela was dent and which had become no facet joint degeneration. 1996. The consultant urologist taken to the Mater Hospital symptomatic as a result of the The orthopaedic surgeon in a concluded that the cause of his where he was x-rayed and a soft- injury. report in January 1996 report- impotence was psychogenic – tissue injury was diagnosed. The Prior to the accident, Mr ed that the overall diagnosis mentally induced rather than same day, Mr McNeela was McNeela had traded in fruit and was a soft-tissue injury to the physical. When viagra came on brought back to his home in vegetables. He travelled from lower lumbar spine aggravating the market, the GP prescribed Castlebar. The following week, Castlebar to Dublin twice week- a degenerative disc at the base it for Mr McNeela, apparently he attended his general practi- ly to buy produce at the market. of the lumbar spine, combined without success. tioner who had known him for He sold the produce as a casual with left sacro-iliac strain. Liability was initially denied, approximately 30 years. The trader in the town of Castlebar Six weeks after the accident, but during the course of the general practitioner found him from a pitch close to the square. Mr McNeela developed depres- trial the defendants acknowl- in great pain, particularly affect- He traded on six days of the sion. In June 1996, the GP edged that the forklift should ing his left foot, his ankle, his week during the summer referred him to the chief psychi- not have collided with Mr lower back and his left hip. For months and five days during the atrist in St Mary’s Hospital, McNeela. Issues remained of three or four days in a row, the winter. He had been doing so Castlebar. The chief psychiatrist contributory negligence. Fur- general practitioner adminis- since 1989. In addition, he in his report dated 1 November ther, Mr McNeela’s credibility tered a morphine injection to owned a 32-acre farm which he 1996 stated that since the acci- was challenged on the basis that Mr McNeela and subsequently had inherited. He extended the dent Mr McNeela had become what was involved was a mere the morphine was replaced by a farm by purchasing 14 addition- extremely depressed. He had a minor injury.

THE JUDGMENT aving outlined the facts as greater detail than would nor- One of those experts was that, assuming the main ele- Hset out above, Laffoy J stat- mally be the case in an ex tem- Professor TJ Fahy, consultant ments of Mr McNeela’s story to ed that, in the light of the defen- pore judgment of this nature. psychiatrist, University College be true, the extent of the psychi- dants’ attack on Mr McNeela’s The judge referred to Mr Galway, who examined Mr atric consequences of the injury credibility, she found it neces- McNeela’s examination by med- McNeela in March 1997. In his seemed to be confined to sary to outline the evidence in ical experts for the defendants. report, Professor Fahy stated depressive symptoms, reactive

46 Law Society Gazette Jan/Feb 2000 Briefing to the extent of painful motor were a fact that he was com- and convicted for trading with- bar to recovery. The judge disability. Professor Fahy noted pletely impotent, the consultant out a licence, contrary to sec- found that from 1992 to 1995 that it was not unusual for noted that it was difficult to see tion 3 of the Casual Trading Act, Mr McNeela was openly trad- impairment of sexual drive to how he could be otherwise than 1980. The judge stated that this ing in a manner which consti- be associated with severe severely depressed indefinitely. was so but had occurred five tuted a criminal offence. chronic painful motor disability In oral testimony, Professor years before the accident. However, it seemed to her that when there is no neurological Fahy expressed a view that the Fifth, it was alleged that Mr the correct principle was that or neurodiagnostic evidence of diagnosis of Mr McNeela’s sexu- McNeela’s tax affairs were in stated in White on Irish law of direct compression or other al problem as being psychogenic disarray before the accident and damages as follows: ‘Recovery interference with the pudendal was ‘highly speculative’. this accounted for or con- ought to be denied only where nerves. The judge noted that Mr tributed to his anxiety and the defendants can demonstrate The judge noted that McNeela had been driving a depression post-accident. The public policy would otherwise throughout 1997 and 1998 Mr motor car since June 1996 but judge noted that Mr McNeela’s be subverted’. The judge noted McNeela continued to have his he had not driven a truck or tax affairs were indeed in disar- that that was clearly not the case physical symptoms investigat- lorry, and the general practition- ray. However, in her view, the and the absence of a casual trad- ed. He was also investigated by er’s evidence was that he would evidence did not suggest a link ing licence was not a bar to Mr O’Laoire, consultant neu- not certify him as fit to drive a between this factor and his post- recovery. rosurgeon in the Mater truck. accident psychiatric condition. The second issue addressed Hospital on a number of occa- One of Mr McNeela’s sons Laffoy J noted that Mr by the judge was whether the sions, and a repeat MRI scan in was running the farm reluctant- McNeela’s physical and psychi- fact that Mr McNeela was not August 1997 revealed nothing ly on the promise of being paid atric problems were clearly tax-compliant before the acci- new and a CT myleogram for his labours. In December interlinked. The most telling dent was a bar to recovery. The showed no evidence or suspi- 1998, due to financial pressure, feature of the case, according to judge noted that although Mr cion of nerve root compression. Mr McNeela sold the 14 acres the judge, on the issue of his McNeela had not made any Mr McNeela also attended a he had previously purchased. credibility was that three experi- income tax returns before the consultant anaesthetist for The judge referred to a num- enced medical practitioners accident, she was satisfied on injections for pain, which had ber specific matters which were regarded Mr McNeela’s com- the evidence that more than a given him short-term relief. His raised as being indicative of Mr plaints as genuine and had con- year before the accident he had orthopaedic surgeon in a report McNeela’s alleged lack of credi- tinued to treat him on the basis begun to rectify his tax position in September 1998 stated he bility. It was alleged that he had that they were genuine for and at the time of his accident would not advise surgical treat- a drink problem before the acci- almost four years. Professor was doing his best to regularise ment, particularly discectomy, dent. Mr McNeela admitted to Fahy’s testimony was noted to his affairs. Since the accident, as there was no major protru- one drinking binge and the gen- the effect that he could not Mr McNeela’s tax affairs had sion into the spine and repeat eral practitioner confirmed he commit himself on the side of been regularised. In the judge’s investigations did not show any had been a ‘bad boy’ on occa- genuineness or otherwise. The view, neither the past nor the evidence of nerve compression. sion. The judge was satisfied judge rejected the proposition current state of his liability to The surgeon’s main advice was that drink had not been a factor advanced by the defendants that tax was a bar to recovery. to persist with a conservative in Mr McNeela’s post-accident Mr McNeela’s claim was The issue then arose of what exercise programme. psychiatric condition. ‘bogus’. On the evidence, she Mr McNeela was earning from Mr McNeela’s anti-depres- It was also alleged that Mr was satisfied that it was genuine, the fruit and vegetable business sant medication was changed McNeela had matrimonial although she believed that, as in before the accident. Financial on a number of occasions problems. The judge stated that most personal injury cases, the statements prepared by Mr because of lack of response. He in 1984 Mr McNeela and his existence of litigation was a fac- McNeela’s accountant were was then put on tranquillisers wife had matrimonial problems tor in his current condition. ‘hotly disputed’. Apparently no and, on one occasion, a major and he was away from the fami- The judge considered that it books such as sales journals, tranquilliser, but he showed lit- ly home for a period. However, was probable that Mr purchase journals or cash books tle progress. In a report in the couple addressed their prob- McNeela’s condition would were kept. While cheque stubs February 1998, Professor Fahy lems and these problems were improve both mentally and filled in by Mr McNeela and for the defendants noted that behind them for a decade when physically, but she did not think bank statements were available, Mr McNeela’s condition was the accident happened. it probable he would ever return there was no corroborating doc- unchanged. He appeared Third, it was alleged that Mr to his pre-accident state. On the umentation of the cheque stubs, depressed in relation to two fac- McNeela had been jailed for evidence, the judge noted it was and in particular Mr McNeela tors: one was his persistent contempt of court in 1990 aris- not possible to conclude that his was unable to produce state- painful disability affecting his ing out of a dispute with the sexual dysfunction would prob- ments from suppliers. However, lower back and left side, the Land Commission in relation to ably resolve. having regard for an overview of second his complaint of total land. The judge stated that Mr Major legal issues arose in the totality of the evidence, the impotence. He noted that the McNeela had been jailed but, in the case in relation to loss of judge came to the conclusion depressive component of Mr her view, there was nothing to earnings. On the issue of the that before the accident he was McNeela’s complaints was not suggest that this had any bearing fact that Mr McNeela was trad- probably earning about £15,000 likely to recover completely as on his post-accident condition. ing without a casual trading a year, or £1,250 a month or long as he continues to have Fourth, it was alleged that Mr licence contrary to the law, the £288 a week from the fruit and disabling pain. Similarly, if it McNeela had been prosecuted issue arose whether this was a vegetable business after tax.

47 Law Society Gazette Jan/Feb 2000 Briefing

The next issue was what Mr fruit and vegetable business. An heavy toll on his health as he The issue of contributory McNeela was capable of earning actuary had stated that the got older. She considered that negligence then arose for consid- since the accident and what he appropriate multiplier was 467 in all the circumstances the eration. The judge stated that would be capable of earning in on the basis that Mr McNeela appropriate discount was 25%. Mr McNeela was standing in the the future. On the evidence, the would probably have continued Therefore, the capital value of roadway just off the pavement judge was satisfied that he had in the fruit and vegetable busi- Mr McNeela’s future loss of when he was struck by the fork- been unable to work at the fruit ness until age 65 had the acci- earnings in the fruit and veg- lift. The judge noted that Mr and vegetable business since the dent not occurred. However, etable business was £100,872. McNeela should not have been accident. She considered that, the judge stated that, given the The next issue addressed by standing on the roadway in the apart from farming, the only nature of Mr McNeela’s pre- the judge was the effect of the position he was and he should business he knew was selling accident business, she consid- injuries sustained by Mr have heeded the traffic, including fruit and vegetables and she did ered that this was a case where McNeela on his income from forklifts, on the roadway because not consider it probable that he there must be a substantial dis- his farming enterprise and how of the frenetic activity of the would ever be able to resume count ‘for adverse contingen- that should be compensated. markets. that business. Therefore, she cies’. The relevant factors were The judge noted that to date In all the circumstances, the concluded that Mr McNeela had his age, the nature of the work the farm had been run by his judge stated, Mr McNeela must been permanently deprived of involved in running the busi- son and the only loss to Mr bear 20% responsibility for the his principal source of income as ness, the return journey from McNeela was the cost of his accident. a result of the accident. Castlebar to Dublin twice a son’s labour, which he had com- Counsel for the defendants The issue then arose of the week and selling fruit and veg- mitted himself to rewarding. applied for a stay. After legal capital value of Mr McNeela’s etables out of doors five or six Based on evidence, the judge argument, Laffoy J stated she future loss of earnings from the days a week, with a probable proposed allowing for loss of would give a stay on condition of labour at £8,000 to date. The a payment out of £150,000. judge considered that £20 a Laffoy J awarded damages as follows: week should cover the addition- Mr H Bourke SC, Mr P O’Higgins • Special damages (other than loss of earnings and farm al labour costs that he was like- SC and T Dillon Leetch BL, labour costs), agreed at £6,500 ly to incur in the future in the instructed by T Dillon Leetch & • Loss of earnings from the fruit and vegetable business context of labour requirements Sons, Solicitors, Ballyhaunis, Co to the date of trial (£1,250 a month for 44 months), £55,000 of a 32-acre farm carrying 17 Mayo, represented Mr McNeela. • Future loss of earnings from the fruit and vegetable sucklers and their calves, Mr R Robbins SC and Mr F business, £100,872 assuming that Mr McNeela Duggan BL, instructed by Stephen • Additional farm labour costs to the date of trial, £8,000 would improve sufficiently to McKenzie & Co, Solicitors, Dublin • Additional farm labour costs in the future, £10,000 do all but the heavy aspects of 2, represented the defendants. G • Pain and suffering to the date of trial, £50,000, and work on the farm. Capitalised • Pain and suffering for the future, £50,000. to age 65 on the basis of the This summary was compiled by Dr This brought the figure to a total of £280,372, of which multiplier of 467, this put a cap- Eamonn Hall, solicitor, from the defendants were liable for 80%, which came to ital value of £9,340 on this loss, Reports of personal injuries £224,297.60. which the judge proposed to 1999, published by Doyle Court

THE AWARD round up to £10,000. Reporters, 2 Arran Quay, Dublin 7.

Law Society Bushmills Millenium Malt 25 years old

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48 Law Society Gazette Jan/Feb 2000 Briefing Update

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

AGRICULTURE performance – oppression of continue trading, and the funds Ireland – whether alleged harm minorities – removal of a director – so borrowed were used for trad- occurred in this jurisdiction – Consumer protection balance of convenience – whether ing. In those circumstances, it whether author of defamatory Agricultural products – dietary the existence of a clause providing was reasonable for the Circuit statement responsible for republica- products – milk – cheese – labelling for a pre-emptive offer to existing Court judge to hold that the tion by another person – whether – description shareholders on a pro-rata basis respondent was entitled to a publication of booklet in this juris- The European Court of Justice renders the contract inoperable – deduction in respect of the cal- diction a natural and probable con- has ruled that a company could whether the right of a registered culation of its profits under sequence of publication in England not market as ‘cheese’ a product owner of shares to vote the shares as schedule d, case 1, in the – whether Irish courts have juris- where milk fat had been he saw fit could be affected by the amount expended in its interest diction to hear claim – whether replaced by other ingredients. court – Companies Act, 1963, payments on the sum borrowed. claim against author should be Union Deutsche Lebensmittel- section 205 So held by the High Court in struck out – jurisdiction of Courts werke v Schutzverband gegen Unpaid vendors of shares are upholding the findings of the and Enforcement of Judgments Unwesen in der Wirtschaft entitled to exercise their voting Circuit Court. (European Communities) Act, ECJ, Case C-101/98, 16/12/99 rights in respect of the shares. A MacAonghusa v Ringmahon 1988 court of equity will not entitle Ltd, High Court, Mr Justice The natural and probable con- an unpaid vendor of shares to Budd, 26/11//99 sequence of publishing a book COMPANY vote deliberately so as to dam- in the United Kingdom about age the purchaser, or contrary to the ‘Birmingham Six’ was that it Insolvency the interests of the purchaser. In COMPETITION would also be published in Receiver’s duty to account for dis- the case of specific performance Ireland, particularly as the posal of assets – rights of directors for purchase of shares, where a Vertical agreements author had given the worldwide to acquire such information – pre-emptive clause exists, the European Commission – competi- right of publication to his pub- application for directions under proper form of relief is that the tion – vertical agreements – verti- lishers and did not insist on a Companies Act, 1963, section contract ought not to be per- cal restraints – selective distribu- contractual stipulation that the 316 and Companies Act, 1990, formed subject to the pre-emp- tion – exclusive distribution – book not be published in section 171 tion rights of the members of exclusive purchasing – franchise Ireland. The High Court so The applicant had been a direc- the company. The balance of agreements held in dismissing the second tor of a company of which the convenience favors maintaining A few days before Christmas, defendant’s application. respondent was acting as receiv- the status quo on the board of the European Commission Hunter v Duckworth, High er. The majority of the assets of directors until the trial. adopted the much-awaited ver- Court, Mr Justice Kelly, the company had been disposed O’Gorman (& Others) v tical agreements block exemp- 12/10/99 of by the receiver. The appli- Kelleher (& Others), High tion regulation (OJ L336/21, cant brought an application Court, Ms Justice Carroll, 29/12/99) which, from June Insolvency seeking information regarding 19/07/99 2000, will replace the present Bankrupt plaintiff summoned for the affairs of the company. The three block exemption regula- examination before the High High Court found that the Taxation tions applicable to exclusive dis- Court – whether examination of a applicant had been afforded as Expenses – deductibility – case stat- tribution agreements, exclusive bankrupt was an administrative much information as the receiv- ed – taxpayer company obtained a purchasing agreements and function rather than part of the er could reasonably furnish. loan having spent commensurate franchise agreements. administration of justice – whether Also, it was held that the appli- sum in redemption of preference provisions of the Bankruptcy Act, cant had not shown sufficient shares – company engaged in trade CONSTITUTIONAL 1988 directing the examination of cause for the court to exercise of ‘retailing of food, clothing and a bankrupt by the court were its discretion to grant the relief other household goods’ – whether Defamation repugnant to the constitution sought and accordingly the interest payments on loan were Brussels convention – libel – The examination of a bankrupt application was refused. ‘wholly and exclusively laid out or motion to strike out proceedings by by the court cannot be charac- Kinsella v Somers, High expended for the purposes of [its] second defendant – booklet pub- terised as a judicial function. Court, Mr Justice Budd, trade’ – findings of fact made by lished in England containing refer- However, since the entire bank- 23/11/99 Circuit Court judge ences to plaintiffs – plaintiffs ruptcy procedure is judicial and The redemption of preference alleged references defamatory – the examination is incidental or Injunction shares by the respondent had booklet also published in Ireland – ancillary to it, it is then a func- Shareholder dispute – interim left a gap in its finances and it second defendant author of booklet tion properly conferred on the interlocutory injunction – specific had to borrow funds in order to and undesirous of publication in court. The mere inclusion

49 Law Society Gazette Jan/Feb 2000 Briefing among the functions given to The jurisdiction clause in the costs. The High Court so held CRIMINAL the court by the legislature of present case is one which pro- in refusing to dismiss the plain- certain powers which may not vides for the exclusive jurisdic- tiff’s claim but in requiring it to Proceeds of crime constitute the administration of tion of the English courts in undertake not to claim Courts Nature of proceedings under justice does not render those relation to disputes arising out Act interest and in making an Proceeds of Crime Act, 1996 – powers unconstitutional. The of the contract between the order for security of costs. jurisdiction of court in relation to High Court so held in dismiss- defendant and the first third Truck & Machinery Sales Ltd v crime committed abroad – whether ing the application. party. Having regard to the General Accident, High property of third defendant repre- O’Donoghue v Official course of trading between them Court, Mr Justice Geogh- sents proceeds of crime – whether Assignee (& Others), High and the fact that the clause was egan, 12/11/99 proceeds of crime legislation applies Court, Mr Justice Kearns, repeatedly set out in invoices to crimes committed abroad 24/11/99 sent by the first third party, the Injunction The Proceeds of Crime Act, 1996 court was satisfied that there Injunction sought in plenary sum- does apply to crimes committed was consensus between the par- mons in relation to wrongful inter- abroad as the object of the Act CONSUMER ties as to this clause. Further, ference with plaintiff’s business – is to prevent the enjoyment in the claims in relation to negli- ancillary claim for damages the state of assets generated by Estée Lauder Cosmetics v gence, breach of duty and mis- included in statement of claim – or in connection with crime Lancaster Group representation were intimately interlocutory injunction granted – and there is no reason why that Free movement of goods – cosmetics bound up with the contractual injunction unnecessary at plenary object should be limited to – labelling – ‘lifting’ – misleading claim and should be heard hearing – damages within District offences committed in this advertising – consumer protection together. The High Court so Court jurisdiction awarded at ple- jurisdiction. The High Court ‘lifting’ cosmetics unlikely to be held in saying that the Irish nary hearing – costs of the action so held in making the order mistaken for surgery substitutes courts had no jurisdiction to awarded to the plaintiff – lowest sought in respect of the proper- The European Court of Justice hear and determine the defen- court having jurisdiction to grant ty of the third defendant. has ruled that the term ‘lifting’, dant’s claim against the first relief ordered – jurisdiction of the DPP v Hollmann (& Others), applied to a cosmetic product, third party. Circuit Court – whether costs High Court, Mr Justice was unlikely to be misunder- Clare Taverns v Gill, High awarded in respect of interlocutory O’Higgins, 29/07/99 stood as a substitute to a surgi- Court, Mrs Justice McGuin- application should be Circuit Court cal lifting operation, but it was ness, 16/11/99 scale – whether costs awarded in Consultative case stated for the national court to con- respect of plenary hearing should be Power of arrest – jurisdiction of firm by reference to the expec- District Court scale – whether District Court – accused arrested tations of an average consumer. COSTS Circuit Court has jurisdiction to for assault contrary to s2 of Non- ECJ, Case C-220/98, grant equitable relief in an action Fatal Offences Against the 13/01/2000 Practice and procedure not relating to property Person Act, 1997 – no power of Plaintiff entered into an insurance Where an injunction is claimed arrest under the Act – Whether contract with the defendant – at the commencement of an district judge entitled to dismiss case CONTRACT defendant refused to indemnify the action, and granted in an inter- on ground of unlawful arrest – plaintiff for a fire at the plaintiff’s locutory order, and is no longer whether valid arrest essential Practice and procedure premises for alleged material non- necessary by the time the mat- ingredient of offence – whether Plaintiff brought action in relation disclosure which would render the ter comes for plenary hearing, if unlawful arrest deliberate and con- to cash-control system installed by insurance policy voidable – plaintiff the plaintiff would have been scious violation of rights of accused – defendant – first third party a subsequently struck off and restored entitled to that injunction at the Constitution of Ireland 1937, company domiciled in England – to the Register of Companies – time of commencement of pro- articles 38 and 40 – Criminal supplied defendant with equipment whether the plaintiff’s claim should ceedings, then the injunction Law Act, 1997, s4 – claimed contract with defendant be struck out for want of prosecu- will be part of the relief granted The jurisdiction of the District subject to jurisdiction clause requir- tion – whether the delay on the in the action for the purposes of Court to embark on any crimi- ing claim to be brought in England part of the plaintiff was inordinate an order for costs. The Circuit nal proceeding is not affected by – jurisdiction clause contained in and inexcusable – whether the Court does not have jurisdic- the fact, if it is the fact, that an conditions of sale – whether effec- defendant was prejudiced by the tion to grant an injunction by accused person has been tive agreement reached to oust delay way of primary relief in an brought before the court by an jurisdiction of Irish courts – Since the case would be based action not relating to property. illegal process but a district whether jurisdiction clause an largely on documentary evi- Accordingly, the High Court judge is entitled to decline to agreement within meaning of dence, the defendant was not was the lowest court having embark on the hearing of the Brussels convention – whether prejudiced by the plaintiff’s jurisdiction to grant the reliefs case if he determines that there jurisdiction clause covered reliefs in delay and would be in a position to which the plaintiff was enti- has been a deliberate and con- addition to those arising directly to defend the claim. However, tled at the commencement of scious violation of the constitu- from the contract – Rules of the in light of the delay it would be this action. So held by the High tional rights of the accused. The superior courts 1986, o16, r8(3) unjust of the plaintiff, if it suc- Court in dismissing the defen- High Court so held in answer- – Jurisdiction of Courts and ceeded, to claim Courts Act dant’s application. ing the case stated with a quali- Enforcement of Judgments interest. If the plaintiff were Rodgers v Mangan, High fied affirmative. (European Communities) Act, unsuccessful, the defendant Court, Mr Justice Geogh- DPP v Bradley, High Court, 1988 might not be able to recover egan, 15/07/99 Judge McGuinness, 09/12/99

50 Law Society Gazette Jan/Feb 2000 Briefing

Extradition tence excessive – summation of evi- saying that this was not an duct – whether declaratory relief Extradition of applicant to dence – jury had seen accused in appropriate case for a reduction available – Unfair Dismissals Scotland sought for alleged sexual custody during trial – allegation of general damages, having Act, 1977, section 15 offence in September 1993 – dis- that juror asleep – whether jury regard to the amount already That declaratory relief is avail- trict judge satisfied that alleged should have been discharged awarded for financial losses. able in employment situations offence corresponded with offence of The applicant had been con- M O’N v Minister for Health unless precluded by pursuing rape contrary to s2 of Criminal victed of robbery and sentenced and Children, High Court, rights under the Unfair Law (Rape) Act, 1981 – whether to ten years’ imprisonment. Mr Justice O’Neill, 19/10/99 Dismissals Act. That ‘fair hear- offence alleged in warrant corre- The applicant appealed against ing’ means to be treated fairly sponds with offence in this jurisdic- the conviction on a number of Building and construction according to the ordinary rea- tion – whether warrant bad for grounds and also appealed Specific performance – agreements sonable standards of fair play. duplicity – whether lapse of six against the sentence. It was entered into between the parties – That the employer is obliged to years makes extradition unjust – alleged that the trial judge had whether the obligations of each apply the rules of natural and whether departure from usual dealt unfairly with the accused’s party had been carried out – the constitutional justice in investi- practice by Scottish court renders alibi evidence and that in gener- rule in Pinnel’s Case – remuner- gating misconduct. That if an certification of warrant invalid – al the trial judge’s summation of ation for professional services – employer does not provide the Constitution of Ireland 1937, the evidence was unfair. The quantum meruit employee with either a full article 40 – Extradition Act, Court of Criminal Appeal held If a liquidated sum is owed by a account of the allegations made 1965, s50 – Criminal Law (Rape) that the trial had been conduct- creditor, a promise by a debtor against him, or an opportunity (Amendment) Act, 1990, s4 ed fairly, rejected the arguments to take a lesser sum in full satis- to refute the allegations, a subse- The test to be applied in assess- made and dismissed the appeal. faction of a larger debt will not quent dismissal is unlawful. The ing whether the offence alleged DPP v O’Regan, Court of bind the debtor. Pinnel’s Case court so held in granting the in an extradition warrant corre- Criminal Appeal, 25/03/99 ([1602] 5 Co Rep 116A) fol- relief claimed. sponds with an offence in this lowed. The agreements were Cassidy v Shannon Castle jurisdiction is to determine not adhered to by the plaintiffs Banquets and Heritage Ltd, whether the factual components DAMAGES and a claim for specific per- High Court, Mr Justice Budd, of the offence, as specified in formance must fail. The plain- 30/07/99 the warrant, would constitute Hepatitis C tiffs are entitled to adequate an offence of the required grav- Personal injury – quantum – compensation for their efforts Damages ity if committed in this jurisdic- Hepatitis C Compensation in furthering the development Applicant sought order quashing his tion. The High Court so held in Tribunal – plaintiff appealed of the first-named defendant’s dismissal – liberty granted to deliver saying that the offence alleged award of general damages of land. The court so held in statement of claim – applicant corresponded with the offence £130,000 – plaintiff contracted granting the relief claimed. sought to amend points of claim to of rape contrary to s4 of the hepatitis C in 1979 at age 21 – Bergin (& Others) v Farrell (& include conspiracy – whether liberty Criminal Law (Rape) Act, 1990 entire adult life ruined by infection Others), High Court, Ms to deliver statement of claim changed and further saying that the – whether overall award should be Justice Carroll, 17/12/99 nature of proceedings from judicial delay in this case was caused by reduced having regard to amount review – whether test to be applied the applicant and he was not awarded for financial losses for amendment of statement of entitled to be released because The court was satisfied that the EMPLOYMENT grounds more stringent – whether of that delay. entire adult life of the plaintiff applicant guilty of delay in bringing Stanton v O’Toole (& Others), was devastated by contraction Fair procedures application – whether claim of con- High Court, Mr Justice of hepatitis C and would con- Sexual harassment allegations – spiracy relevant to reliefs sought – O’Donovan, 07/12/99 tinue to be so affected and, in finding of gross misconduct – Rules of the superior courts the circumstances, an award of unfair dismissal – whether the 1986, o28, r1 Practice and procedure £250,000 for general damages employer applied the rules of natu- The nature of the proceedings Conviction – alibi evidence – would be appropriate. The ral and constitutional justice in before the court did not change appeal – sentence – whether sen- High Court so held in further investigating the alleged miscon- by virtue of the fact that liberty

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51 Law Society Gazette Jan/Feb 2000 Briefing was granted to deliver a state- from proceeding with an infor- tion – Wild birds directive – spe- facilitate the use of electronic ment of claim and the court mal mediation process concern- cial protection areas signatures and will encourage should only allow an amendment ing litigation in which the The European Commission has their legal recognition by of the original grounds, in plaintiff and the university were decided to make an application establishing a legal framework respect of which leave to seek defendants. The plaintiff to the European Court of and minimum requirements judicial review was granted, in claimed that the university Justice against Ireland for non- for certification services. The exceptional circumstances. agreed not to settle the litiga- respect of the Wild birds direc- directive has left a number However, even if the application tion without his consent. The tive. The decision concerns the of fields unploughed where did come within order 28, rule 1 litigation was discontinued failure to curb sheep overgraz- the Member States will con- of the Rules of the superior courts, it against the plaintiff. An infor- ing, particularly in the west of tinue to apply their national would still fail, as the claim of mal exploratory exercise at dis- Ireland, leading to serious dam- laws, such as the law on the conspiracy had no relevance to pute resolution such as the age to Ireland’s largest special formation and validity of con- the reliefs sought and therefore mediation process does not protection area, the Owenduff- tracts and the acceptability an amendment would not be imply a legalistic framework. Nephin Beg Complex in of electronically-signed data necessary to determine the real The plaintiff was no longer a County Mayo, as well as wider between the parties to a con- question in controversy between party to the litigation once the loss of habitat of the red grouse. tract. It will not apply either the parties. The High Court so notice of discontinuance had ECJ, 06/01/2000 to closed networks such as held in refusing the application. been served. There was no issue intranets. The directive must O’Leary v Minister for to be tried in such circum- be implemented by 19 July Transport, High Court, Mr stances. The High Court so TELECOMMUNICATIONS 2001. G Justice Kelly, 26/11/99 held in refusing the application. Fanning v UCC, High Court, Electronic signatures The information contained here is Informal mediation Ms Justice Carroll, 07/07/99 Information technology – Internet taken from FirstLaw’s Legal Injunction – compromise of pro- – contracts Current Awareness Service, ceedings – settlement agreement On 13 December 1999, the published every day on the The plaintiff is a professor of ENVIRONMENT Council of Ministers opened a Internet at www.firstlaw.ie. Full economics and head of the new era for electronic com- texts are available on-line. For Department of Economics at Commission takes action merce by unanimously adopt- more information, contact University College, Cork. He against Ireland ing the Directive on electronic [email protected] or tel: (01) sought to restrain the university Environment – nature preserva- signatures. The directive will 8090400, fax: (01) 8090409.

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lease note that from 1st March 2000 all applications for •Fearon & Co specialise in acting for Irish residents in Pregistration relating to land located in Counties Kildare the fields of probate, property and litigation and Wicklow must be accompanied by the new Land • Each solicitor is available by direct line, fax or e-mail. Registry application form incorporating Form 17 of the Conferences can be easily arranged Land Registration Rules 1972. •Fearon & Co is committed to the use of information technology to help improve both the quality and Applications which do not enclose the new form 17 cor- speed of service for the benefits of all clients both at rectly completed will be returned unregistered. Details of home and abroad the new application form were published in the December • The firm’s offices are within half an hour of London edition of the Gazette. Waterloo station and within a short travel from both Gatwick and Heathrow airports, with easy access from The form is available in electronic format on the Land the London orbital M25 motorway Registry Website at www.landregistry.ie in Microsoft Word • No win, no fee arrangements and Legal Aid are 95TM, Word 97TM, Amipro 3.1TM and various formats of available in appropriate cases WordperfectTM. You may also obtain the form on disk in PHONE NOW FOR A BROCHURE these formats or printed copies of the form from John Westminster House 12 The Broadway, Woking, Surrey GU21 5AU England Murphy, Land Registry, Chancery St., Dublin 7, Tel: Fax: +44 (0)1483 725807 Email: [email protected] www.fearonlaw.demon.co.uk (01)8048066, Fax: (01)8048074, E-mail: john.murphy@ LITIGATION PROPERTY PROBATE landregistry.ie Timothy Fearon John Phillips Francesca Nash Tel: +44 (0)1483 776539 Tel: +44 (0)1483 747250 Tel: +44 (0)1483 765634

52 Law Society Gazette Jan/Feb 2000 Briefing Eurlegal

News from the EU and International Law Committee Edited by TP Kennedy, Director of Education, Law Society of Ireland Replacement of the Brussels convention

he most significant devel- enter into force on its imple- sons and decisions of their man- sustained. This amendment Topment in the field of mentation date rather than aging bodies. would have reflected the inter- European private international requiring a number of signato- Contract. The regulation pretation of the original provi- law is the imminent replace- ries to implement a treaty as at retains much of the original sion by the Court of Justice in ment of the Brussels convention present. The accession conven- wording of article 5(1): jurisdic- Case 21/76 Bier v Mines de with a Regulation on jurisdiction tion for Austria, Finland and tion is given to the ‘place of per- Potasse ([1976] ECR 1735). It is and enforcement of judgments in Sweden (which makes a number formance of the obligation in regrettable that this amend- civil and commercial matters. The of minor amendments) has not question’. This had been one of ment does not appear in the commission has also announced yet entered into force for this the most heavily-litigated provi- regulation. However given the a new Regulation on jurisdiction reason. sions of the convention and consistent manner in which the and enforcement of judgments in The legal basis for this pro- gave rise to a great deal of court has followed Bier through matrimonial matters (to replace posal is Title IV of the EC uncertainty. However, in the to the most recent decision of the current draft convention) treaty. Measures adopted under case of the sale of goods and the Case C-51/97 Réunion Euro- and a Regulation on service of doc- this title are not applicable in provision of services, the regu- péenne Sa & Ors v Spliethoff’s uments within the EU. Denmark, the UK and Ireland. lation defines the place of per- Bevrachtingskantoor BV and the The Brussels convention has However, at the council meet- formance of the obligation in Master of the vessel Alblasgracht been reviewed over the last few ing on 12 March last, the UK question. For the sale of goods, V002 (judgment of 27 October years. In early 1998, the and Ireland indicated that they it will be the place where the 1998), article 5(3) will still have European Commission pub- would ‘opt in’ for this and other goods were or should have been to be looked at in the light of lished a proposal (OJ C 33, 31 proposals on judicial co-opera- delivered. In the case of the pro- Bier. January 1998) which would tion. If Denmark does not opt vision of services it will be the Multiple defendants. The have made significant changes in, the regulation will apply place where under the contract regulation proposes a minor to the jurisdictional provisions between all other Member the services were or should have change to article 6. This cur- in the convention and would States, the convention between been provided. rently allows a plaintiff to sue also have simplified the recog- those states and Denmark, and This proposed article 5(1) is multiple defendants in the nition and enforcement of for- the Lugano convention between greatly preferable to the origi- domestic jurisdiction of any one eign judgments. It was put the EU and EFTA Member nal proposal. That would have of them. The regulation repeats before the European Parlia- States. narrowed the scope of this pro- the wording of this article and ment but did not proceed any The regulation very largely vision to contracts for the sale then goes on to say: ‘provided further. This proposal gathered corresponds to the existing of goods. All other contractual that the claims are so closely dust for almost two years. convention. The scale of the cases would have fallen under connected that it is expedient to The Amsterdam treaty took proposed changes is much less article 2. hear and determine them effect on 1 May. On 28 May, the significant than in the original Tort. There is one small together to avoid the risk to commission put forward a fresh proposal. The major proposed change to article 5(3). This cur- irreconcilable judgments result- proposal for revision of the changes are as follows. rently provides that in tortious ing from separate proceedings’. convention (Proposal for a council Domicile. The regulation cases jurisdiction is given to the This follows the consistent regulation (EC) on jurisdiction retains the concept of the domi- court of the place where the interpretation of the original and enforcement of judgments in cile of natural persons. This is harmful event occurred. The article from Case 198/87 civil and commercial matters, in contrast to the original pro- regulation provides that it will Kalfelis v Schröder ([1988] ECR COM (1999) 348 final). It pro- posal, which proposed replac- cover cases not only where the 5565). poses the replacement of the ing domicile with habitual resi- harmful event has occurred but Insurance contracts. The convention with a regulation. dence. The regulation proposes also those where it may occur. scope of article 9 has been This would bring the conven- an autonomous definition of The original commission broadened. This allows a poli- tion within the framework of the seat of a legal person. The proposal had suggested chang- cyholder to sue an insurance EC law. The Luxembourg proto- convention currently provides ing article 5(3) to allow a defen- company in the courts of the col would become redundant, as that this is to be determined by dant to be sued in the courts for policyholder’s domicile. The the regulation would be subject national law. The regulation the place where the event giving rationale behind this is to pro- to article 234 (formerly article retains a reference to national rise to the damage occurred or tect the weaker party. This 177) of the treaty. It would also law as regards the validity, nul- in the courts for the place where right to sue an insurance com- mean that the regulation would lity and dissolution of legal per- the damage or part thereof was pany in one’s own domicile is

53 Law Society Gazette Jan/Feb 2000 Briefing now extended to the insured contracts concluded through an Employment contracts. lodged, when the server person and the beneficiary interactive website accessible in These jurisdictional rules receives the document for where they are the applicants. the state of the consumer’s remain the same. However, service (that is, when a sum- This extension is consistent domicile. Knowledge of goods they are taken from articles 5 mons is issued). with the purpose of the article. or services acquired by a con- and 17 and grouped together in Recognition and enforce- Consumer contracts. The sumer through a passive website articles 18-21 of the regulation. ment of judgments. The scope of the consumer contract accessible in his home state will Jurisdiction agreements. regulation attempts to make provision has been extended to not be sufficient. As with article 17 of the con- the recognition and enforce- offer consumers better protec- The removal of the require- vention, article 23 of the regu- ment mechanisms for foreign tion. Article 13 has been ment that the consumer take the lation allows the parties to judgments faster. It provides replaced by article 15. The con- necessary steps to conclude the choose the jurisdiction of a cer- for a uniform certificate con- sumer can sue in his own domi- contract in his home state is also tain court and then gives that taining certain basic informa- cile in respect of a contract for meant to take electronic com- court exclusive jurisdiction. tion to accompany judgments. the sale of goods on instalment merce into account. In the case of However, the regulation allows The court asked to enforce credit terms or in respect of a contracts concluded through an parties to agree that a choice of the judgment cannot entertain credit agreement made to interactive website, it may be dif- forum clause will not be exclu- the grounds for non-enforce- finance the sale of goods. The ficult or impossible to determine sive. It also takes account of ment of its own motion. The article then goes on to provide where the steps necessary to con- electronic commerce and judgment debtor must raise that the consumer provisions clude the contract were taken. allows a jurisdiction clause these. apply if: Some concern has been agreed by means of electronic Defences to recognition ‘In all other cases, the contract expressed over this proposed communication to be a durable and enforcement. The scope has been concluded with a person wording by those involved in record on the same basis as a of the defences has been who pursues commercial or profes- electronic commerce. They written jurisdiction clause. somewhat narrowed. A for- sional activities in the Member argue that parties engaged in Lis pendens. The convention eign judgment must now be State of the consumer’s domicile or, electronic commerce will be provided that in case where two ‘manifestly’ contrary to public by any means, directs such activities exposed to potential litigation in courts were seised of the same policy rather than being con- to that Member State or to several each Member State or they will cause of action, the court first trary to it. This defence had countries including that Member have to specify that their prod- seised had jurisdiction. This led been interpreted narrowly and State, and the contract falls within ucts or services are not intended to some uncertainty as the rules is now likely to be even more the scope of such activities’. for consumers domiciled in cer- concerning courts being seised narrowly interpreted. This is a broader provision tain Member States. The com- of an action differed between Renumbering. As a conse- than in the original article. mission held a hearing of inter- the common law and civil law quence of the deletion of cer- Article 13 requires an invitation ested parties on this recently. jurisdictions. The regulation tain articles in the regulation to purchase addressed to the However, no further amendment attempts to resolve this by pro- and the addition of some new consumer and requires the con- has yet been proposed. viding a definition of the date ones, there is some renumber- sumer to take the necessary Article 13 excluded transport when a court is seised of a mat- ing in the regulation. This is steps in his state to conclude the contracts from its scope. The ter. Article 30 provides that a most significant in the recog- contract. It also confined the regulation retains this exclusion court is seised either where the nition and enforcement provi- provision to contracts for the but makes it clear that package document instituting the pro- sions. G supply of goods or services. The holidays do come within the ceedings is lodged with the new provision is designed to scope of the consumer protec- court or if the document has to TP Kennedy is the Law Society’s take into account consumer tion. be first served before being Director of Education.

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54 Law Society Gazette Jan/Feb 2000 Briefing Recent developments in European law

CONSUMER cover or provide a bank guar- issue of state liability. It held Government introduced ‘urgent PROTECTION antee. The value of the guaran- that an implementing provision measures for restoring financial tee required was to be at least that afforded protection to hol- stability in the social security Package holidays 5% of a reference turnover. idaymakers departing on 1 May system’. The order provided Case C-140/97 Rechberger and The decree applied to all pack- 1995 (rather than 1 January that pharmaceutical laboratories Ors v Republic of Austria, judg- age holidays booked after 1 1995 as required) was incom- must pay a special levy based on ment of 15 June 1999. Mr January 1995 with a departure patible with the directive and the pre-tax turnover achieved in Rechberger was a subscriber to date of 1 May 1995 or later. For was a sufficiently serious France between 1 January 1995 the Austrian daily newspaper three of the subscribers who breach of EC law. However, the and 31 December 1995 in reim- Neu Kronenzeitung. In booked their holidays in 1994, protection in the directive does bursable proprietary medicinal November 1994, he received a there was no guarantee since not extend to travel agreements products and medicinal prod- letter from the publisher the decree only applied to entered into before the date for ucts approved for use by public informing him of an offer from package holidays booked after implementation of the direc- authorities. Article 12 of the the travel organiser Arena- 1 January 1995. For another tive. The court also pointed out order allowed the undertakings Club-Reisen of a ‘free’ four or three who booked after 1 that the directive imposed an concerned to deduct from the seven-day trip to one of four January 1995 and were to have obligation to protect con- amount of that levy the costs European destinations. The taken their holidays after 1 May sumers against all risks men- corresponding for the same offer was a loyalty reward for 1995, their payments were in tioned and found that the period to expenditure on scien- subscribers. Persons travelling principle covered by a guaran- Austrian arrangements limiting tific and technical expenditure with subscribers had to pay a tee issued in accordance with the amount of guarantee were carried out in France. Baxter price specified in the brochure the decree. However, the bank inadequate. The directive seeks and the other undertakings and subscribers travelling alone guarantee was insufficient to to guarantee package holiday- challenged that provision before had to pay a single room sup- reimburse the travel costs paid, makers reimbursement of their the Conseil d’Etat. It referred a plement of ATS 500. All sub- as the final level of cover was money and repatriation in the question to the ECJ on the scribers accepting the offer had only 25.38% of the amount event of the travel organiser’s compatibility of such a provi- to pay a deposit and settle the paid. The six subscribers insolvency. Thus, a Member sion with Community law. balance before the departure brought an action against State cannot argue imprudent The ECJ observed that the date. The offer was far more Austria to recover the full conduct on the part of the trav- principles of freedom of estab- successful than anticipated. amount they had paid, arguing el organiser or the occurrence lishment enables business to be The consequence of this was that Austria was liable for its of exceptional or unforeseeable carried on through branches, that the organiser applied in failure to implement the direc- events to avoid liability. agencies or subsidiaries whose July 1995 for bankruptcy pro- tive in good time and in full. seats are located in other ceedings to be initiated. In The ECJ held that the direc- EMPLOYMENT Member States. The court also addition, this advertising cam- tive applied to the trips in ques- referred to its own case law, paign was held by the Austrian tion. The purpose of the direc- Equality which prohibits, in the name of Supreme Court to be incom- tive is to protect consumers The commission is proposing equality of treatment, all forms patible with national competi- against the risks arising from new measures to fight discrimi- of discrimination by reason of tion laws. Bookings had been the insolvency or bankruptcy of nation. These proposals are due nationality, or in the case of a made between 19 November package travel organisers. to be published next year. Their company, its seat. The particu- 1994 and 12 April 1995. In These risks are inherent in objective will be to outlaw dis- lar allowance only took account each case the travel costs had package holiday contracts. crimination in the workplace on of expenditure on research car- been paid in advance. The They arise as the price of the grounds of sex, racial or ethnic ried out in the Member State of trips, which should have taken package is paid in advance and origin, religion or belief, disabil- taxation. The French govern- place between 10 April and 23 from the spreading of responsi- ity, age or sexual orientation. ment justified this as necessary July 1995, were cancelled. bilities between the organiser to enable the tax authorities to Under the 1990 Directive on and the various providers of the ESTABLISHMENT ascertain the nature and gen- package holidays, every travel services comprising the pack- uineness of the research expen- organiser must provide ‘suffi- age. The consumer enjoys Case C-254/97 Société Baxter diture. The court held that in cient evidence of security for rights guaranteeing him the and Ors v Premier Ministre, judg- this case effectiveness of fiscal the refund of money paid over reimbursement of money paid ment of 8 July 1999. Société supervision was not capable of and for the repatriation of the over and his repatriation in the Baxter and a number of other justifying a restriction on the consumer in the event of insol- event of the insolvency or French undertakings exploit exercise of fundamental free- vency’ (article 7). Austria bankruptcy of the organiser. proprietary medicinal products. doms. National legislation should have implemented the The subscribers were exposed They are subsidiaries of compa- absolutely preventing the sub- directive by 1 January 1995. In to precisely those risks against nies whose seat is located in sidiaries from submitting evi- 1994, it adopted a decree intro- which the directive is designed Member States other than dence that their research carried ducing a requirement for travel to afford protection. The ECJ France. On 24 January 1996, an on in other Member States was organisers to obtain insurance then moved on to examine the order of the French actually undertaken, when doc-

55 Law Society Gazette Jan/Feb 2000 Briefing

umentary evidence could be not pay the balance remaining word ‘Lloyd’. Klijsen also man- Siberie vof, judgment of 29 June produced, cannot be justified for the goods. ED applied to the ufactures and distributes shoes, 1999. The Dutch tax authori- on the basis of effective fiscal Italian courts for a summary using the trademark ‘Loint’s’ ties had sent a demand for pay- supervision. Thus, the tax pro- payment order in respect of the since 1970 in the Netherlands ment of VAT to a proprietor of vision in question was not com- outstanding sum with interest and since 1991 in Germany. a coffeshop in Amsterdam who patible with Community law. and costs. Italian law prevents Lloyd sought an order restrain- rented a table to a dealer who use of this process where a ing Klijsen from using ‘Loint’s’ sold soft drugs. FREE MOVEMENT defendant lives abroad. This is for shoes and footwear in He argued that renting a OF GOODS justified to avoid default judg- Germany as it could be con- table to a supplier involved ments of which a foreign defen- fused with its trademark. It complicity in a criminal offence Case C-394/97 Criminal dant would be unaware. The argued that this contravened and was thus not subject to Proceedings against Sami ECJ held that such a measure article 5(1)(b) of Directive VAT. The Dutch tax authorities Heinonen, judgment of 15 June was compatible with article 29. 89/104/EEC. This prohibits argued that making available a 1999. Finland bans imports of The possibility that vendors the use of trademarks, which place of sale was a supply of alcohol on the part of Finnish would be reluctant to sell goods can lead to the likelihood of services within the scope of residents who return from a to purchasers in other states was confusion with another trade- article 2 of the sixth directive state outside the European too uncertain and indirect for mark. The ECJ held that there and was subject to turnover tax. Economic Area where the jour- the measure to be regarded as was a likelihood of confusion. The ECJ held that the princi- ney has not lasted more than 20 liable to hinder trade between The court held that it was diffi- ple of fiscal neutrality prevents hours and was by a means of Member States. cult to establish binding rules any general distinction in the transport other than air. These for setting out situations likely levying of VAT as between law- restrictions had been abolished. INTELLECTUAL to cause confusion. The likeli- ful and unlawful transactions. However, there was a sharp rise PROPERTY hood of confusion has to be The fact that conduct amount- in alcohol consumption and the assessed taking into account all ed to an offence was not suffi- measures were re-introduced. Copyright the circumstances of a particu- cient to justify exemption from Mr Heinonen, a Finnish resi- The commission has put for- lar case. A global assessment VAT. dent, travelled to Tallinn ward an amended proposal for a involves interdependence The exemption only applies (Estonia). On his return, cus- directive on copyright and relat- between relevant factors. These where, owing to the special toms authorities confiscated 19 ed rights. The directive would include similarity between characteristics of certain prod- cans of beer and imposed a fine. apply to copyright protection, in goods or services or between ucts or certain services, any The ECJ pointed out that the particular reproduction right, their trademarks. competition between a lawful treaty does allow prohibition or communication to the public Marks with a highly distinc- economic sector and an unlaw- restriction of certain imports on right, distribution right and tive character enjoy greater pro- ful sector is precluded. grounds of public morality, pub- legal protection of anti-copying tection than those that are less The unlawful nature of the lic policy, public security or pro- and rights management systems. distinctive. Global appreciation activities does not alter the eco- tection of the health and life of The amended proposal includes of the likelihood of confusion in nomic character of the renting humans. The Finnish campaign the majority of the amendments relation to the visual, aural or and does not prevent competi- against the rise in alcohol con- proposed by the European conceptual similarity of the tion between lawful and unlaw- sumption came within the scope Parliament. marks is based on the overall ful activities. However, its ear- of these defences. The ECJ held impression created by the lier decision in Case 289/86 that the Finnish measure was Trademarks marks. The likelihood of confu- Happy Family v Inspecteur Der proportionate to the objective Case C-342/97 Lloyd Schuhfab- sion is based on the impression Omzetbelasting ([1988] ECR pursued. rik Meyer & Co GmbH v Klijsen on the average consumer of the 3655) still stands. In that case, Handel BV, judgment of 22 June category of products concerned. the court had held that VAT Case C-412/97 ED Srl v Italo 1999. Lloyd has manufactured could not be collected on the Fenocchio, judgment of 22 June and distributed shoes since 1927 TAXATION sale of narcotic substances as 1999. ED Srl is an Italian com- using the trademark ‘Lloyd’. It because of their very nature pany. It supplied goods to Mr owns a number of word and pic- VAT they are subject to a total pro- Fenocchio, a resident of Berlin. ture trademarks registered in Case C-158/98 Staatssecretaris hibition on marketing in all He had paid a deposit but did Germany, incorporating the Van Financiën v Coffeeship Member States. G

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

56 Law Society Gazette Jan/Feb 2000 People and places

Council of the Law Society of Ireland 1999/2000 (Front row) Elma Lynch, Past President Francis D Daly, Immediate Past President Patrick O’Connor, Director General Ken Murphy, President Anthony Ensor, Senior Vice-President Ward McEllin, Geraldine Clarke, Past President Laurence K Shields, Past President Moya Quinlan, and Gerard Griffin; (second row) Niall Farrell, Anne Colley, John P Shaw, Orla Coyne, Sean Durcan, Patrick Casey, Maeve O’Driscoll, Brian Sheridan, John Costello, and Peter Allen; (third row) Donald Binchy, Kevin O’Higgins, John Harte, Philip Joyce, John Fish, Hugh O’Neill, David Bergin, Walter Beatty, Simon Murphy, James MacGuill, Keenan Johnson, and John D Shaw; (back row) Michael Irvine, David Martin, Michael Peart, Tom Murran, James McCourt, Stuart Gilhooly, and John O’Connor Lady Solicitors’ Golf Society

Over 60 members of the Lady Solicitors’ Golf Society teed off at the society’s autumn outing, held at Kilkea Castle Golf Club last September. The results were as follows: first, Pauline Burke, H/C 27, 39 points (on back 9); second, Breda New Deputy O’Malley, H/C 37, 39 points; Showing off their sheepskins: Graduates display the fruits of their DPP named gross, Elaine Anthony, H/C labours after the recent parchment ceremony 12, 24 gross points; third, Barry Donoghue, Chairman of Mary Ronayne, H/C 20, 37 the Law Society’s Criminal Law points; visitor’s prize, Brenda Committee, has been appointed Gearty, H/C 14, 31 points; Deputy Director of Public Sheila O’Gorman Trophy, Prosecutions. Donoghue has Yvonne O’Gara, H/C 37, 34 been a senior officer in the points (on back 9); first 9, DPP’s Office since 1992. Prior Eimear Cowhey, H/C 24, 22 to that, he worked in the Chief points; second 9, Mary State Solicitor’s Office, where Molloy, H/C 13, 20 points. he was head of the District The incoming lady captain Court section for four years. for the year 2000 is Geraldine He has served on the Criminal Lynch Burke, who can be Law Committee since its contacted at AC Forde & Co establishment in 1991 and is A SADSI kind of day: Pictured at the SADSI education day Bridging the gap on 01 660 7522. Details of event held in Blackhall Place last November are (left to right) Ethna also vice-president of the the society’s spring outing McDonald, Judge John Blayney, Eugene McCague, Louise Gallagher, Barry Corporate and Public Services will be circulated shortly. Lyons and Jane Farren Solicitors’ Association.

57 Law Society Gazette Jan/Feb 2000 People and places Outgoing President’s Dinner Calcutta Run 2000 n a bright and sunny President of the Law Society, Oafternoon last May, over was reeled in by the chasing 500 runners and walkers pack as he turned into gathered at Blackhall Place for Benburb Street. The first the inaugural Calcutta Run runners arrived home in a over a 10-kilometre course. fantastic time of just over 32 Solicitors and staff from many minutes, and over the next 45 of Dublin’s best-known firms minutes or so a procession of took part in the run, together tired limbs and smiling faces with their friends, clients and continued through the finish anyone else who could be line at Blackhall Place. Most persuaded to tackle the course. runners proceeded to undo The proceeds raised went to their good work at a most The measure of a man: Immediate Past President Pat O’Connor help homeless children at enjoyable post-run barbecue in sizes up Hugh O’Neill and Gerry Doherty at his Outgoing home and abroad. the Law Society grounds. President’s Dinner at the Law Society in December Thanks to the efforts of the This year’s run will take many volunteers who helped place in the Law Society on with the preparation and on Sunday 21 May. We are the day – and, of course, the hoping for an even bigger and great work of all the partici- better event, with lots more pants who took part and raised runners and lots more money the sponsorship – more than raised for charity. If you took £60,000 was raised, which was part last year, run again – and a fantastic achievement. The this year recruit a new money went to help fund participant. We are also GOAL’s project for street looking for people who will children in Calcutta and Fr organise and recruit within Peter McVerry’s Aruppe their own firms or perhaps Society, which provides among firms in their local accommodation for homeless area. We would love to have teenagers here in Ireland. solicitors from all over the The day itself was a great country take part and not just success. The starting pistol Dublin. The run is not was fired by Mr Justice confined to those from the Game for a laugh: Law Society President Anthony Ensor amuses Feargus Flood and the runners Dublin area and groups from Andrew F Smyth, Gerald Hickey and Don Binchy at the Outgoing President’s Dinner for Patrick O’Connor were cheered on by former non-law firms will also be world snooker champion Ken heartily welcomed. For further Doherty. After starting information, contact Alan strongly and opening up a Roberts, tel: 01 649 2000, lead, Pat O’Connor, then- e-mail: [email protected].

Honouring their own: Suzanne Johnston of Osborne Recruitment and Keith Walsh, chairman of the NUI Galway Law alumni, present past graduate Patrick O’Connor with an award marking his achievements as Off to a good start: Tanya Sheridan accepts the 1999 Tormey & Co the President of the Law Society 1999. The occasion was a reception Scholarship from Denis Naughten TD as Tormey principal Barra Flynn commemorating the 150th anniversary of the enrolment of the first law looks on. Each year the prize goes to an outstanding post-primary student in what was then Queen’s College Galway student who plans to pursue a career in law

58 Law Society Gazette Jan/Feb 2000 Law School news Law school prizes

here are a number of prizes Tavailable for the top performers in subjects on the professional and advanced courses. Some of these prizes have a long history, while others are of more recent vintage. Over the last year, there have been a number of prize awards.

AIB Conveyancing Prize AIB Bank, which has been sponsoring Law Society examinations since the early 1980s, makes an award to the Law Society President Anthony Ensor addresses the apprentices gathered in the Presidents’ Hall for the student who achieves the parchment ceremony last December highest mark in applied land law on a professional practice administration of estates course in any calendar year. For examination. Recent winners of courses which took place during this prize have been: 1998, the prize was awarded to Sinead McNamara (44th course) Noreen O’Neill. Maria O’Brien (45th course) The Law Society makes two Kathryn Campbell (46th course) awards to the students who Elaine Gorman (47th course) achieve the second and third- Sarah Harte (48th course) highest marks in applied land Veronica Kelleher and Deirdre law on a professional practice McBennett (49th course). course in a calendar year. For courses which took place during Gallagher Shatter Prize It’s a cracker: Second-place finalist Gerard Ryan with Helen Harnett, 1998, awards were made to Gallagher Shatter, Solicitors, first-place winner of the Findlater Scholarship. The scholarship is given Victoria Cheung, who was sponsor an award for the student for the best overall performance on the professional practice and advanced courses placed second, and to Maria who achieves the highest mark in Hurley, who came third. family law on an advanced course in a calendar year. This prize was It will make an award to the Sean Barton (27th course) Guinness & Mahon Tax Prize first awarded in 1998 to student who achieves the highest Sinead Glasgow (28th course) Guinness & Mahon Bank, Josephine Deasy who attended mark in the civil litigation Patrick Cronin & Frances Leahy which has an association with the 41st course. examination on the professional (jointly) (29th course) the Law Society going back to practice course. Marie Barry (30th course) the late 1970s, makes an award Ulster Bank Civil Bronagh Heverin (31st course) to the student who achieves the Litigation Prize Findlater Scholarship Kenneth Egan (32nd course) highest mark in capital Ulster Bank is the latest financial This is one of the oldest prizes Grace O’Mahony (33rd course) acquisitions tax on each institution to become involved in and was first awarded in 1888. Ann Marie Bohan (34th course) professional practice course. sponsoring Law Society prizes. The Findlater Scholarship is Chelita Healy (35th course) Recent prize winners have been awarded for the best overall Laura Delaney (36th course) Sarah Beckett, Jane Farren, performance on the professional Michelle Doyle (37th course) Rowena Fitzsimons and practice and advanced courses. Grainne Butler & Maeve Lynch Catherine Pierse. The following is a list of some of (jointly) (38th course) the Findlater Scholarship Nicola (Helen) McGrath (38th John B Jermyn Prize recipients: PC & 39th AC) The John B Jermyn Prize was set Sally De Foubert (19th course) Tara Doyle (39th course) up in 1981 by the then- John Bourke (20th course) Karen Gibbons (40th course) president Moya Quinlan and Joseph Fahy (21st course) Deirdre Ann McCarthy (41st solicitor John B Jermyn. The Declan O’Connell (22nd course) course) John B Jermyn Prize is awarded AIB Bank Youth Market Co- Liam Butler (23rd course) Conor Keaveny (42nd course) ordinator Shane O’Neill on each professional practice Bryan Bourke (24th course) Una Woods (43rd course) congratulates Maria Hurley, who course to the student who won a Law Society conveyancing Margaret McKeogh (25th course) Michelle McLoughlin (44th achieves the highest result in prize for her outstanding grades Bridin O’Donoghue (26th course) the wills, probate and in applied land law course) Helen Harnett (45th course). G

59 Law Society Gazette Jan/Feb 2000 Apprentices’ page SADSI in the year 2000 he Solicitors’ Apprentices as well as – but not at the TDebating Society of Ireland expense of – the regional ( SADSI ) enters its 116th centres. session as we recover from A cornerstone of the SADSI our own entry into the new plan for the coming year is to millennium. Like most re-establish SADSI as the pre- societies, SADSI’s fortunes eminent debating society in this have ebbed and flowed jurisdiction. A debating task depending on the times, its force has been set up under the members and its committee. guidance of Clodagh Beresford Despite its name, it is more and will set down a strategy for than a debating society; it is the coming and future years. It the apprentices’ society. is intended to revive the fierce Apprentices have successfully King’s Inns debates of years used it as a vehicle for change gone by and to challenge the in such areas as the Law Northern apprentices. Moot Society’s educational system The SADSI committee with Director of Education TP Kennedy, following trials and international debates their first meeting to discuss the year ahead. (Front row, l-r) Rachel and apprentice wages. SADSI Minch, Ann Brennan; (middle row, l-r) Anthony Coomey, Gareth Bourke, will also take place. The has also organised many balls, Eva Lalor; (back row, l-r) Patrick Bardon, Keith Walsh, TP Kennedy, David debating year begins with the career fairs and social events. Ryan, David Higgins maiden speakers’ debate on 24 As the new auditor of February. This event is open to SADSI, I have been presented survey has been prepared by the society for apprentices all over all apprentices who have not with the opportunity to reshape vice-auditor and welfare officer, the country. SADSI regional previously debated in the Law the society into a more open, Gareth Bourke, and question- events, sponsored by the Ulster Society, not just those on the active and representative body. naires will be circulated to all Bank, are planned for Galway, professional courses. This can only be achieved with apprentices in February. Cork, Limerick, the midlands I would like to welcome each the assistance of my committee Another forum for feedback is and north-east and west and every apprentice to the and the enthusiasm and the SADSI website, which during the year. As 67% of 116th session of SADSI and participation of apprentices all should be on-line by mid- apprentices are indentured look forward to meeting you at over the country. February. here, Dublin will not be the various events around the Apprentice feedback is SADSI is not just a society neglected. There will be ample city and country. essential. A major welfare for apprentices in Dublin; it is a social provision for the capital Keith Walsh Interviewing competition he final rounds of the After much soul-searching, SADSI Committee 2000 Tinterviewing competition three winners suggested Auditor: Keith Walsh, Anthony Harris & Co, Dublin were held just before themselves: Clodagh Beresford, Vice-auditor & welfare officer: Gareth Bourke, Christmas. The interviewing Gareth Bourke and Emer Patrick J Durcan & Co, Mayo team were very impressed with O’Sullivan. They’ll go forward Honorary secretary: Eva Lalor, Orpen Franks, Dublin the quality of interviewing to represent the Law Society in Honorary treasurer: Patrick Bardon, Black & Co, Dublin skills displayed by the students. the International client Public relations officer: Ann Brennan, Unfortunately, this made counselling competition to be held Crowley Millar & Co, Dublin choosing the top three an in Queen’s University Belfast Western representative: David Higgins, onerous task. between 5 and 8 April. Geoffrey Browne & Co, Galway Southern representative: Anthony Coomey, PJ O’Driscoll & Sons, Cork SADSI events: February 2000 Limerick & Midland representative: David Ryan, Monday 14 ‘Welcome to the professional course’ drinks Breen Geary McCarthy & Shee, Limerick reception at Griffith College for the 53rd, Dublin representatives: Rachel Minch, 54th and 55th courses McCann FitzGerald, Dublin Thursday 17 Reception and promotion for in-office Keith Smith, Arthur Cox, Dublin apprentices in Dublin; secret venue (not Chief O’Neills), to be revealed early February Ex-officio members Thursday 24 Drinks reception and SADSI maiden speakers’ Debating task force co-ordinator: debate, the Presidents’ Hall, Blackhall Place Clodagh Beresford, Actons, Dublin Friday 25 Western apprentices social gathering in Drama co-ordinator: Galway City (venue to be announced) Ronan O’Brien, Garrett Sheehan & Co, Dublin

60 Law Society Gazette Jan/Feb 2000 Professional information

LOST LAND County of Cork; Co Cork CERTIFICATES Regd owner: Thomas Cavanagh; LawSociety Folio: 29726F; Lands: Known as Gazette Registration of Title Act, 1964 a plot of ground situate in the An application has been received Townland of Lissanisky and the from the registered owners men- Barony of Barrymore in the ADVERTISING RATES county of Cork; Co Cork tioned in the schedule hereto for the Advertising rates in the Professional information section are as follows: issue of a land certificate as stated to Regd owner: Thomas Doherty, have been lost or inadvertently Toulett, Speenogue, Burt, Co • Lost land certificates – £30 plus 21% VAT (£36.30) destroyed. A new certificate will be Donegal; Folio: 8135; Lands: • Wills – £50 plus 21% VAT (£60.50) issued unless notification is received Toulett; Area: 61.238 acres; Co • Lost title deeds – £50 plus 21% VAT (£60.50) in the registry within 28 days from Donegal • Employment miscellaneous – £30 plus 21% VAT (£36.30) the date of publication of this notice Regd owner: St Columba’s Diocesan that the original certificate is in exis- Tr ust, Ard Adhamhnain, HIGHLIGHT YOUR ADVERTISEMENT BY PUTTING A BOX AROUND IT – £25 EXTRA tence and in the custody of some Letterkenny, Co Donegal; Folio: All advertisements must be paid for prior to publication. Deadline for March person other than the registered 3646F; Lands: Ballybofey; Area: Gazette: 18 February 2000. For further information, contact Catherine owner. Any such notification should 0.163 acres; Co Donegal state the grounds on which the cer- Regd owner: Margaret Murtagh Kearney or Louise Rose on 01 672 4828 tificate is being held. (deceased), 57 Glencloy Road, (Register of Titles), Central Office, Whitehall, Dublin 9; Folio: Land Registry, Chancery Street, 29535L; Lands: Glencloy Road Ballyadams; Co Laois acres; Co Meath Dublin and situate in the county borough Regd owner: Margaret McGrath; Regd owner: Bernard and Eileen (Published 4 February 2000) of Dublin; Co Dublin Folio: 2737; Lands: Closeland or Downes, Bogganstown, Regd owner: John and Anne Fallon; Cloneen and Barony of Drumree, Co Meath; Folio: 2747; Regd owner: John Tobin (deceased); Folio: 41742L; Lands: Property Portnahinch; Co Laois Lands: Bogganstown; Area: 1.860 Folio: 7065F, 7063F and 7070F; situate in the Townland of Regd owner: Michelle Hartigan; acres; Co Meath Lands: Seskinnamadra and Templeogue and Barony of Folio: 3689L; Lands: Townland Regd owner: Patrick Togher, Drum, Barony of Idrone East; Co Uppercross; Co Dublin of Sluggary and Barony of Binghanstown, Co Mayo, and Carlow Regd owner: Una Lawless; Folio: Pubblebrien; Co Limerick Berrillstown, Tara, Co Meath; Regd owner: Patrick Gibney, 12926; Lands: Townland of Regd owner: Dermot and Thomas Folio: 20317; Lands: Springhall, Oldcastle, Co Meath Oldcourt and Barony of Howard; Folio: 22271; Lands: Berrillstown, Branstown; Area: and Bahernagh, Ryefield, Uppercross; Co Dublin Townland of Ballinvreena and 36.469 acres; Co Meath Virginia, Co Cavan; Folio: 12872; Regd owner: Aidan McCaffrey and Barony of Coshlea; Co Limerick Regd owner: Joseph Clinton, Lands: Behernagh; Area: 15.118 Te resa McCaffrey, c/o Regd owner: Irish Shell Limited; Drakerath, Kells, Co Meath; acres; Co Cavan MacDermot and Allen, Solrs, 10 Folio: 22393; Lands: Townland of Folio: 17467F; Lands: Drakerath; Regd owner: Thomas Tully, St Francis St, Galway; Folio: Courtbrack and Barony of Area: 50.381 hectares; Co Meath Castleterra, Ballyhaise, Co 1662L; Co Galway Pubblebrien; Co Limerick Regd owner: Patrick Creavin, 5 Cavan; Folio: 25630; Lands: Regd owner: Frances Noone, Regd owner: John Mulvihill, O’Growney Terrace, Navan, Co Castletiterra and Drumohan; Devon Park, Salthill, Galway; Cornadough, Newtowncashel, Meath; Folio: 13032F; Lands: Area: 26.919 acres; Co Cavan Folio: 42434; Lands: Townland of Co Longford; Folio: 12406; Abbeylands; Co Meath Regd owner: John Masterson, Clogatisky and Barony of Lands: Carrow More, Carrow Regd owner: Eamonn McGovern Coragh Glebe, Killeshandra, Co Galway; Area: 0a 1r 0p; Co Beg; Area: 81.644 acres; Co (deceased), Grangebeg, Skreen, Cavan; Folio: 20971; Lands: Galway Longford Co Sligo; Folio: 17701; Co Sligo Coragh Glebe; Area: 36.06 acres; Regd owner: William O’Sullivan; Regd owner: Matthew C Mullen; Regd owner: Michael Deane; Folio: Co Cavan Folio: 11974F; Lands: Townland Park Street, Dundalk, Co Louth; 33253; Lands: Caherhoereigh Regd owner: Patrick Gerard Hillery, of Ranalough and Barony of Folio: 11973; Lands: and Faddan More and Barony of Main Street, Miltown Malbay, Co Tr ughanacmy; Co Kerry Haggardstown; Area: 0.425 acres; Ormond Lower; Co Tipperary Clare; Folio: 12532; Co Clare Regd owner: Patrick and Patricia Co Louth Regd owner: Martin Kearney Regd owner: Joseph B Halpin, Lynch; Folio: 32126; Lands: Regd owner: Patrick McCormack, (deceased) and Evelyn Kearny; Ballinooskny; Folio: 8044; Lands: Townland of Shanakill and 98 Creeneen (Craobhin) Park, Folio: 12501; Lands: Cloran Old Townland of Ballinooskny and Barony of Trughanacmy; Co Balbriggan, County Dublin; and Barony of Middlethird; Co Barony of Bunratty Lower; Area: Kerry Folio: 11759; Lands: Tipperary 0.785 hectares; Co Clare Regd owner: T Horan and Sons Sarsfieldstown; Area: 23.056 Regd owner: William and Breda Regd owner: Kathleen O’Connell; Ltd; Folio: 21415 and 31893; Folio: 49947; Lands: Known as a Lands: Townland of Castleview plot of ground situate in the and Barony of Trughanacmy; To wnland of Ballycurreen and the Area: 25 perches (21415); 2 acres Barony of Cork; Co Cork 1 rood 7 perches (21893); Co Regd owner: William Twomey; Kerry TITLE RESEARCH Folio: 47612; Lands: Known as a Regd owner: Michael Scanlon; YOUR PARTNER IN TRACING plot of ground situate in the Folio: 5322F; Lands: Townland Townland of Ballinaspig Beg and of Ballynabrennagh Lower and MISSING BENEFICIARIES the Barony of Cork; Co Cork Barony of Trughanacmy; Co PROBATE & Regd owner: Daniel Carroll and Kerry SUCCESSION • Free professional assessments Elizabeth Carroll; Folio: 34730F; Regd owner: Bridget Dullard; Folio: GENEALOGY – • Range of cost structures Lands: Known as a plot of ground 1415; Lands: Ullid and Barony of WORLDWIDE • Excellent success rate worldwide situate in the Townland of Iverk; Co Kilkenny • A complete service to the profession Carrigrohane and the Barony of Regd owner: Thomas Madigan; Cork; Co Cork Folio: 9805F; Lands: Jerpoint For more information or our detailed brochure please call Regd owner: Michael Malone; Abbey and Barony of Gowran; +44 020 7549 0900 Folio: 44672; Lands: Known as a Co Kilkenny Charter House, 2 Farringdon Road, London EC1M 3HN plot of ground situate in the Regd owner: Nicholas Mulhall Fax: +44 020 7549 0949 DX: 53347 Clerkenwell Townland of Farran and the (deceased); Folio: 1858; Lands: Email: [email protected] www.title-research.com Barony of East Muskery in the Balllehane Lower and Barony of

61 Law Society Gazette Jan/Feb 2000 Professional information

Delahunty; Folio: 40415; Lands: Regd owner: Angela Molloy; Folio: Dunne, Vincent (deceased), late of who died circa 1998, please contact Loughlohery and Barony of Iffa 2176F, 12839, 12840; Lands: 42 Santry Close, Santry, Dublin 9. McEntee & O’Doherty, Solicitors, and Offa West; Co Tipperary Grange and Barony of Shelburne; Would any person having knowl- 20 North Road, Monaghan, tel: 047 Regd owner: Rory Kirwan (other- Co Wexford edge of an original will of the above 82088, fax: 047 83486 wise Roger Kirwan); Folio: Regd owner: William and Irene named deceased who died on 25 3104F; Lands: Townland of O’Connor; Folio: 568F; Lands: November 1999, please contact Kilnafrehan Middle and Barony Ballyregan and Barony of Vivien Haverty, Irishtown, EMPLOYMENT of Decies without Drum; Co Scarawalsh; Co Wexford Mountmellick, Co Laois Waterford Regd owner: Patrick and Rita Solicitor seeks flexible (possibly Regd owner: Edmund Power; Folio: Gavan; Folio: 18165F; Lands: Kennelly, Niall (deceased), late of part-time) hours preferred in 1871; Lands: Townland of Borleagh and Barony of Gorey; 94 New Ireland Road, Rialto, Dublin City. Two years’ PQE, wide Lisselty and Barony of Gaultiere; Co Wexford Dublin 8, and formerly of Home variety of legal experience, comput- Co Waterford Cottage, Redstone Hill, Surrey er literate. Will work flexible hours Regd owner: Michael Aherne; RH1 4AW, England. Would any depending on work demand. Please Folio: 12145F; Lands: Townland WILLS person with any knowledge of a contact Box No 10 for a CV of Kilmore West and Barony of will executed by the above named Coshmore and Coshbride; Co deceased who died on 16 May PA secretary required for sole Bardsley, Kevin (deceased), late of Waterford 1999, please contact Ferrys, practitioner in Fitzwilliam area. 3 Dargle Lodge, Knocklyon, Regd owner: James Moran, Solicitors, of 443 South Circular Microsoft Word experience and Tempelogue, Dublin 16, and 4a Bunavalley, Athlone, Co Road, Rialto, Dublin 8, tel: 01 some legal experience essential. Ashfield, Templeogue Road, Dublin Westmeath; Folio: 19811; Lands: 4544275, fax: 01 4536911 Excellent salary for suitable candi- 6W. Would any person having Magher-Anerla; Area: 0.219 date. Commencement date for knowledge of a will executed by the acres; Co Westmeath Malone, Catherine (otherwise employment is flexible. Reply to above named deceased who died on Regd owner: Thomas Butler, Kitty), late of 25 John Street, Box No 11 11 February 1999, please contact Cornamaddy, Athlone, Co Kilkenny. Would any person with Cogan-Daly & Company, Westmeath; Folio: 5037; Lands: any knowledge of a will executed by Newly or recently-qualified Solicitors, Brighton House, 50 Cornamaddy; Area: 3.306 acres; the above named deceased who solicitor with ability to work on Te renure Road East, Rathgar, Co Westmeath died on 23 May 1999 at St own initiative required for busy Dublin 6, tel: 01 4903394, Regd owner: William Corish Columba’s Hospital, Thomastown, general practice. Applications to fax: 01 4903190 (deceased); Folio: 19647; Lands: Co Kilkenny, please contact John V Glynn, Principal, M/s Ballymoney Lower and Barony of Kearney Roche & McGuinn, Patrick Hogan & Co, Ballinasloe, Bolger, Edward James of Ballaghkeen North; Co Wexford Solicitors, 9 The Parade, Kilkenny, Co Galway Knockgreaney, Coolgreaney, Gorey, Regd owner: Anastasia and Thomas tel: 056 22270, fax: 056 63298 Co Wexford, otherwise James O’Loughlin; Folio: 20053; Lands: Recently-qualified solicitor Edward, otherwise Eamon and oth- Parknacross and Barony of Murphy, Michael Jnr (deceased), required for practice in County erwise of Ferrybank, Arklow, Co Ballaghkeen North; Co Wexford late of Rearour, Aherla, Co Cork. Limerick. Reply to Box No 12 Wicklow and otherwise of 7 Regd owner: Mary Nolan; Folio: Would any person having knowl- Scotthall Row, Leeds, England. 1523; Lands: Oulartard and edge of a will executed by the above Assistant solicitor required for Would any person having knowl- Barony of Scarawalsh; Co named deceased who died on 16 North County Dublin practice. edge of a will executed by the above Wexford October 1999, please contact M/s Please send CV to Patrick W named deceased who died on 28 Regd owner: Henry Thackaberry; Collins, Brooks & Associates, McGonagle & Co, Solicitor, North September 1999, please contact CJ Folio: 3479F; Lands: Scarawalsh Solicitors, 7 Rossa Street, Clonakilty, Street, Swords, Co Dublin Louth & Son, Solicitors, Ferrybank, and Barony of Ballysimon; Co Co Cork, tel: 023 33332 (REF: RC) Arklow, tel: 0402 32809, reference: Wexford Assistant solicitor required for Cathal Louth O’Flaherty, Thomas (deceased), vibrant, technologically-efficient late of Mansize Kennels Limited, general practice in Mullingar, Co Donnellan, Mary (deceased) (née Seatown Road, Swords, Co Dublin. Westmeath. Might suit newly or Keenan), late of 21 Sherlock Terrace, DUBLIN SOLICITORS’ Would any person having knowl- recently-qualified solicitor who has Skerries, Co Dublin. Would any per- edge of a will of the above named dealt with all aspects of general PRACTICE OFFERS son having knowledge of an original deceased who died on 25 practice to include conveyancing, AGENCY WORK will of the above named deceased November 1999, please contact litigation, probate, family law etc. who died on 20 August 1999, please IN NORTHERN Niall Corr & Company, Solicitors, Immediate position available. Apply contact MA Regan McEntee & 32 Malahide Road, Artane, Dublin to Box No 13 with full details and IRELAND Partners, Solicitors, High Street, 5, tel: 01 8312838, fax: 01 8316320 CV * All legal work undertaken Tr im, Co Meath, tel: 046 31202, fax: 046 31932 on an agency basis O’Sullivan, Peter (deceased), for- Solicitor required for busy Ennis * All communications to clients merly of 1 Johnstown, practice. Two to four years’ PQE – through instructing solicitors Walkinstown, and late of Rosario must have experience in conveyanc- * Consultations in Dublin if required LOST A WILL? Nursing Home, Ferrybank, ing, probate, taxation. Modern Contact: Séamus Connolly Waterford. Would any person hav- office, attractive terms for suitable Moran & Ryan, Solicitors, TRY THE ing knowledge of the whereabouts candidate. Apply in confidence to Arran House, REGISTRY OF WILLS of a will dated 7 January 1992 with M Cashin of M Cashin & 35/36 Arran Quay, Dublin 7. SERVICE codicil dated 3 March 1992 execut- Associates, 3 Francis Street, Ennis, ed by the above named deceased Co Clare Tel: (01) 8725622 who died on 27 October 1997, Fax: (01) 8725404 please contact M/s T Kiersey & Solicitor required for West Cork Co, Solicitors, 17 Catherine Street, practice – salary in accordance with E-mail: [email protected] Tuckey’s House, Waterford, tel: 051 874366 experience. Reply to Box No 14 or Bank Building, Hill Street 8, Tuckey Street, Newry, County Down. CORK. Vernon, John (deceased), late of 1 Solicitor South County Dublin Tel: (0801693) 65311 Tel: +353 21 279225 Elm Court, Merrion Road, Dublin. seeks merger or other arrangement. Fax: (0801693) 62096 Fax: +353 21 279226 Would any person having knowl- Might suit young solicitor or firm E-mail: [email protected] Dx No: 2534 Cork Wst edge of the administration of the wishing to expand. Reply to Box estate of the above named deceased No 15

62 Law Society Gazette Jan/Feb 2000 Professional information

Experienced solicitor seeks part- 235-239 High Road, Wood Green, Landlord and Tenants Acts, 1967- leasehold interests held by the appli- time position in north side of London N22 8HF, England, tel: 1984 and the Landlord and cant in the property are hereby Dublin or city centre – conveyanc- 0044 181 881 7777, or The Tenant (Ground Rents) (No 2) called upon to furnish evidence of ing/probate. Reply to Box No 16 McLaren Building, 35 Dale End, Act, 1978: an application by their title to the solicitors for the Birmingham B4 7LN, tel: 0044 121 Mary O’Brien of Ballymount applicant within 21 days of the date Solicitor, recently qualified, seeks 212 0000. Alternatively e-mail us Road, Dublin 12 of this notice. work, two to three days a week; on [email protected] or visit Ta ke notice that any person having In default of any such notice North Dublin/South Meath. Reply our website at www.davidle an interest in the freehold estate of being received, the applicant to Box No 17 vene.co.uk the following property: all that and intends to proceed with the applica- those a portion of the leasehold tion before the said county registrar Litigation solicitor required London solicitors will advise on premises comprising part of the at the end of 21 days from the date immediately for South Dublin UK matters and undertake agency lands of Walkinstown, Barony of of this notice and will apply to the office. Must have experience in work. All areas. Corporate/private Upper Cross and County of said county registrar for directions plaintiff/defence work; excellent clients. Ellis & Fairbairn, 26 Old Dublin, together with a right of as may be appropriate on the basis salary and benefits. Apply in strictest Brompton Road, South way, as more particularly set out that the person or persons benefi- confidence with full CV to Brenson Kensington, London SW7 3DL, and described in the indenture cially entitled to the superior inter- Lawlor & Co, Argyle Square, tel: 0044 171 589 0141, fax: 0044 lease dated 17 August 1934 ests, including the freehold rever- Morehampton Road, Dublin 4. 171 225 3935 between Thomas Doyle of the one sions in the property are unknown REF: PF part Michael O’Brien of the other or unascertained. Agents – England and Wales. We part, being for a term of 99 years Solicitor required with experience are willing to act as agents for Irish from 17 August 1934 and subject Schedule in conveyancing/probate; attractive solicitors in civil and criminal liti- to an annual rent of £8, subject to Part 1: premises known as 79 Talbot salary package and opportunities for gation. Contact: Olliers, Solicitors, the exceptions and reservations Street, in the parish of St Thomas successful candidate. Reply in Alderman Downward House, 2/3 and the covenants and conditions and City of Dublin held under strictest confidence to Delahunty The Birtles, Civic Centre, therein set out. indenture of lease made 14 O’Connor & Co, Solicitors, 179 Wythenshawe, Manchester M22 Take notice that Mary O’Brien September 1908 made between Crumlin Road, Dublin 12 5RF, tel: 0044 161 437 0527, fax: intends to submit an application to Suzanne Harte, Henry Harkness 0044 161 437 3225 the county registrar for the Streeten, Suzanna Davis, Thomas County/City of Dublin for the Alma Brunker, Edward Carolin For all the top legal jobs! Northern Ireland solicitors. Will acquisition of the freehold interest Harte, Elizabeth Grace Hayes, www.osbornerecruitment.ie advise and undertake NI-related in the aforesaid properties and any Edith Harte and Elizabeth Ennis of Solicitor IT/Intellectual Prop, D7! matters. All areas corporate/private. party asserting that they hold a the one part and Henry Bryan of the Super young growing firm! Ph Gina Agency or full referral of cases as superior interest in the aforesaid other part. @ OSBORNE 6628686/fx preferred. Consultations in Dublin premises (or any of them) are Part 2: all that and those the 6628689/email [email protected] or elsewhere if required. Fee shar- called upon to furnish evidence of premises now known as 80 and for- Senior PA for Partner c£21-23K! ing envisaged. Donnelly Neary & title to the aforementioned premis- merly known as 80 and 80a Talbot Lots of scope to progress! D2! ph Donnelly, 1 Downshire Road, es to the below named within 21 Street in the parish of St Thomas Gina @ OSBORNE 6628686/fx Newry, Co Down, tel: 080 1693 days from the date of this notice. and City of Dublin held under 6628689/email [email protected] 64611, fax: 080 1693 67000. In default of any notice being indenture of lease made 30 August Contact KJ Neary received, Mary O’Brien intends to 1929 made between Rev Henry H proceed with the application Streeten, Edward Carolin Harte, MISCELLANEOUS before the county registrar at the Thomas Alma Brunker, Suzanna TITLE DEEDS end of 21 days from the date of this Davis, Martha Harte and Elizabeth Northern Ireland solicitors pro- notice and will apply to the county Grace of the one part and Henry viding an efficient and comprehen- Notice seeking information registrar for the county/city of Bryan of the other part. sive legal service in all con- To: person with information in Dublin for directions as may be Signed: O’Connor, solicitors for the tentious/non-contentious matters. relation to the ownership of the appropriate on the basis that the applicant, 8 Clare Street, Dublin 2. Dublin-based consultations and lessor’s interests in the premises person or persons beneficially enti- 4 February 2000 elsewhere. Fee apportionment. ML hereinafter described. tled to the superior interest includ- White, Solicitors, 43-45 Monaghan Description of premises to ing the freehold reversion in each Street, Newry, County Down, tel: which this notice refers: all that of the aforesaid premises are 080 1693 68144, fax: 080 1693 and those the premises known as 2 unknown or unascertained. 60966 Fitzwilliam Terrace and 3 Signed: Thomas Byrne & Company, James Hyland Fitzwilliam Terrace, situate in the Solicitors, 5 Greenhills Road, Northern Ireland agents for all Parish of Bray, half Barony of Walkinstown, Dublin 12. and Company contentious and non-contentious Rathdown and County of 21 January 2000 matters. Consultation in Dublin if Wicklow. required. Fee sharing envisaged. Particulars of leases: lease for Landlord and Tenants Acts, 1967- FORENSIC Offices in Belfast, Newry and lives dated 10 May 1851 and made 1984 and the Landlord and ACCOUNTANTS Carrickfergus. Contact Norville between John Archer of the one Tenant (Ground Rents) Connolly, D&E Fisher, Solicitors, 8 part and Stephen Raverty of the (No 2) Act, 1978: Guiney and 26/28 South Terrace, Cork Tr evor Hill, Newry, tel: 080 1693 other part; lease dated 28 Company Limited (applicant) 61616, fax: 080 1693 67712 November 1861 and made between and persons unknown Phone (021) 319 200 Adam Seaton Findlater, Andrew (respondents) Fax: (021) 319 300 Personal injury claims, employ- Armstrong, George Farquhason, Take notice that the applicant ment, family, criminal and property William Todd, Henry Walker intends to submit an application to Dublin Office: law specialists in England and Todd, George Scott of the one part the county registrar, Dublin met- Carmichael House Wales. Offices in London (Wood and Edward Breslin and of the ropolitan, for the acquisition of the 60 Lower Baggot Street Green, Camden Town and other part. freehold interest in the premises Dublin 2 Stratford) and Birmingham. One of described in the schedule hereto our staff is in Ireland for one week in Signed: Hugh J Campbell & Co, (‘the property’) and any persons Phone: (01) 475 4640 every month. Legal aid available to Solicitors, Shannon House, Custume having any interest in the freehold Fax: (01) 475 4643 clients that qualify. Contact David Place, Athlone, County Westmeath. estate or any intermediate estate E-mail: [email protected] Levene & Co at Ashley House, 25 November 1999 between the freehold and the

63 Law Society Gazette Jan/Feb 2000 Cross-examination The man who could have saved the Beatles

‘A lawyer ohn Fish, a senior partner in the law firm Arthur Cox and member of the Law Society with a Council, has been elected First Vice-President reasonably Jof the Council of European Bars and Law Societies (CCBE), the body that represents the sympathetic interests of the European legal professions before ear can the EU institutions. He is due to serve as president for the year 2001/02, only the second-ever Irishman help others to hold that post. in their Born in Dublin in 1938, he went to Sandford National School in Ranelagh, and then the High difficulties’ School in Dublin’s Harcourt Street. He studied the Law Society’s legal professional courses in Trinity College, and was apprenticed to Rowan Blakeney of A&L Goodbody. Following qualification in 1960, he spent two years working in the firm as assistant to George Overend (who was at that time President of the Law Society). He joined Arthur Cox in 1968.

What attracted you to a career in the law? I rather liked the idea of becoming a lawyer from my early days in school, partly due to an interest in the organisation of and participation in meetings, and partly to a belief (which I still continue to hold) that a lawyer with a reasonably sympathetic ear can help John Fish: First Vice-President of the Council of European Bars and Law Societies (CCBE) others in their difficulties.

Which living person do you most admire, Best decision you ever made? and why? To have had the good fortune of joining Arthur Cox There are many people from all walks of life whom in 1968 at a time when commercial lawyers were in I greatly admire, but my short list would include relatively short supply. Robert Fisk for the courage of his convictions and his journalistic integrity. Worst decision you ever made? Another would be Gianni Manca, an Italian As a young solicitor, not to have spent a few years lawyer who spends most of his time in Scotland. gaining experience in the City of London. I met him many years ago, and he epitomises everything I admire in a lawyer, combined with an How do you cope with stress? extraordinary sense of humour. Gianni was also a To discuss the cause of the problem with friends and past president of the CCBE. associates and to listen to their advice.

What is the best piece of advice you ever got? If you could make one change to the legal From Archie Overend (past president of the Law system, what would it be? Society and contemporary of Arthur Cox) who told To have the power to release public funds in order to me that, whilst a good memory is a very useful tool develop the legal aid system, thus enabling greater in the practice of law, no matter how well you may access to justice than is available at present. remember a legal point, always check it by reference to ‘the books’. Time management tips? The only papers on your desk should be those Which case do you wish you had been relating to the case you are working on. involved in? To have acted on behalf of The Beatles, and possibly Pet hate? advised them not to break up. A cluttered desk. G

64 Law Society Gazette Jan/Feb 2000