Contents GazetteLawSociety

Regulars Cover Story Crazy situation Things were a bit different back in 1883, when ‘moron’ and ‘imbecile’ News 2 12 were recognised medical terms and criminals could plead ‘lunacy’ as a Letters 9 defence. Over a century later, the government is updating the law on criminal insanity. Dara Robinson discusses the main points in the Book reviews 33 Criminal Law (Insanity) Bill, 2002 Stockwatch 38 Change of plan Briefing 39 18 Requiring property developers to include social and affordable housing in Council reports 39 their developments was a new idea in Committee 2000, but this requirement has since reports 41 been modified and tightened by the Practice notes 42 Planning and Development (Amendment) Legislation Act, 2002. John Gore-Grimes outlines update 46 the new planning regime Personal injury judgment 48 Interim measures A recent Supreme Court ruling means FirstLaw update 51 24 that the District Court can no longer Eurlegal 55 grant ex parte interim barring orders under the Domestic Violence Act, 1996. Alan Shatter examines the People and reasons for the decision and its impact on those at risk places 62

Professional An unconventional approach information 67 26 Human rights advocacy has turned into a virtual industry in England on the back of the Human Rights Act. But many Irish lawyers doubt

FRONT COVER: JACK NICHOLSON AS that our version of the legislation will have a similar impact, while THE JOKER FROM BATMAN (1989). PIC: SNAP/REX FEATURES others believe the constitution is already performing the same function. Barry O’Halloran reports The paper chase 29 The Land Registry’s drive to move from a paper-based system to a full electronic service continues apace, writes Michael Treacy Completion notices: a word of warning 30 Every practitioner knows what a completion notice is and what it is intended to do. But a recent High Court decision could have far- reaching implications for vendors who are not ‘ready, willing and able to complete’, as Patrick Mullins explains

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

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

Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4877. Volume 97, number 1 E-mail: [email protected] Law Society website: www.lawsociety.ie Subscriptions: €57.15

1 Law Society Gazette Jan/Feb 2003 News

LAWTECH RETURNS The Law Society’s annual Clonmel Nationalist scoops LawTech exhibition and seminar will be held on Friday 28 February in Blackhall Place, Law Society media award starting at 10.30am. Further details about the event will be argaret Rossiter, a occasions. Margaret Rossiter Court awaits committee’s judgment, circulated to the profession Mcolumnist with the has produced an outstanding published in July 2002. shortly. Nationalist newspaper in series of articles, any one of In the Non-Daily Clonmel, has been named which would have been a Newspapers category, ARTHUR COX DOES IT AGAIN Overall Winner of the Law worthy winner. Certificates of Merit went to For the fourth consecutive Society’s Justice Media Awards ‘Each of these pieces Kieron Wood of the Sunday year, Arthur Cox has been competition. This is a captured the essence of the Business Post for a series of named the top Irish law firm in competition aimed at rewarding issue, with elegance and insight, articles pointing up the the Global Counsel 3000 outstanding journalism in the and they were often illustrated inconsistencies and potential Survey of in-house lawyers. print or electronic media which with telling pen-pictures and injustices of the in camera rule in Arthur Cox received the contributes to the public’s real-life examples. Margaret’s courts, and Aileen Power of the highest rating among law Irish understanding of the law, the understanding of the nuts-and- Sunday Business Post for her firms in Ireland in nine different legal system or any specific legal bolts of the law and the legal articles on the financial categories, including banking issue. system would put many implications of divorce. and debt finance, In the Magazine category, communications, the Justice Award was presented competition/antitrust, to Barry O’Halloran of Business company and corporate and Finance magazine for a series transactions, dispute of articles on issues as diverse as resolution, employment and tobacco litigation and Ireland’s employee, and M&A. arcane gambling laws. The judges awarded two Certificates WORKING WITH EMOTIONAL of Merit, one to Kathy Burke of CLIENTS Consumer Choice (now the Law Marriage and Relationship Society Gazette) for an article on Counselling Services (MRCS) is children’s rights as consumers to run a workshop designed to and the other to Mairead Carey help family lawyers ‘foster of Magill for her articles on effective communication’ with Margaret Rossiter (centre) receives her award from immediate garda interrogation techniques past-president Elma Lynch and director general Ken Murphy clients who are undergoing and the Church’s handling of separation or divorce. The Rossiter won the top prize experienced lawyers to shame. clerical sexual abuse. workshop will be held over two for her series of articles in the The readers of the Nationalist In the Books category, the evenings from 6.30pm to paper on sentencing policy, are lucky to have a columnist of Justice Award was presented to 9.30pm on Tuesday 25 juvenile crime, the probation the calibre of Margaret Rossiter Paul Cullen for With a little help February and Tuesday 4 March service and public order and we are delighted to present from my friends (Gill & and costs €300 per person. offences. At a ceremony in the her with this award’. Macmillan), his account of the For further information, contact Law Society’s Blackhall Place The winners in each of the rise of corruption in Irish MRCS on 01 6443901 or by e- headquarters recently, four other categories in the politics that culminated in the mail at [email protected]. Immediate Past-President of the competition won a Justice Flood Tribunal. Law Society, Elma Lynch, Award, comprising a Dublin The Justice Award for KEEP ON RUNNING presented the prize to Rossiter, Crystal Joyce plate (and a €750 Television was presented to The Calcutta Run, the annual whose columns also won the cheque), with the runners-up RTÉ’s Angela Daly and Sinead charity event organised by non-daily newspaper category receiving a Certificate of Merit McCarthy for their Prime Time solicitors and supported by the in the Justice Media Awards. As (and a cheque for €250). report, entitled The Irish baby, on Law Society, will take place on Overall Winner, she received a The winner of the Justice the phenomenon of pregnant Saturday 17 May. It comprises Dublin Crystal vase and a cheque Award in the Daily asylum-seekers who come to a 10K fun run/walk, followed for €1,500. Newspapers category was Ireland to have their children by a barbecue at Blackhall Explaining the judges’ Vincent Power of the Evening and claim Irish citizenship. A Place. The participants raise decision, Law Society Director Echo in Cork for his six-part Certificate of Merit went to money through sponsorship for General Ken Murphy said: report on urban violence, Emma O’Kelly of RTÉ’s Six- their participation. Last year’s ‘There have been times in the entitled Danger on our streets, One News for a report event saw some 1,400 runners history of this competition published in February 2002. examining four high-profile and walkers raise €225,000 when an entry is just so good A Certificate of Merit went criminal cases where the for GOAL and Fr Peter that there is virtually no to John Breslin of the Irish judiciary had strongly criticised McVerry’s shelters for discussion among the judges. Examiner for his articles entitled the behaviour of the homeless youths in Dublin. This was one of those Time to act for the children and investigating Garda officers.

2 Law Society Gazette Jan/Feb 2003 News Society reviews its regulation policy, asks members for submissions

he Law Society has set up a concerning solicitors, having Tspecial task force to examine regard to best practice in similar the way it carries out its professional organisations both in regulatory functions. Explaining Ireland and abroad and to make the move, the president said: recommendations arising from ‘We are committed to the such examination’. principle of efficient and The task force says that it effective self-regulation of the welcomes submissions from solicitors’ profession and members, particularly their regularly update and improve views on the current regulatory our regulatory systems to systems and procedures in ensure that their quality is place and any specific maintained and enhanced. In suggestions they have to make this context, a task force has Members of the Regulatory Review Task Force, chaired by Joe Brosnan, on how they could be been set up with the following former secretary general of the Department of Justice and until recently improved. Written submissions terms of reference: to examine director general of the Institute of European Affairs. Front row (from left): should be forwarded to Tina director general Ken Murphy, Joe Brosnan and Cecil Donovan, former the procedures and systems whereby president of the Institute of Chartered Accountants; back row (from left): Beattie, secretary to the task the society a) regulates its members Linda Kirwan, Gerard Doherty, registrar of solicitors PJ Connolly, John D force, at the society no later and b) deals with complaints Shaw, junior vice-president John Fish and Tina Beattie than 15 March.

BRIEFLY Clothes maketh the man, in the District Court FIGHTING TALK he President of the District response to a query from the Marc Weller, deputy TCourt, Judge Peter Smithwick, Gazette, Judge Smithwick said: director of the Centre for has issued a clarification on the ‘Counsel are expected to robe in all Public International Law at appropriate garb to be worn by District Courts. The exceptions are: Cambridge University, is to barristers in the District Court. The 1) where there is statutory give a lecture to the Irish subject gained national prominence provision to the contrary, as in Society of International Law following an exchange between family law, children courts, and 2) (ISIL) entitled The use of Judge Michael Patwell and senior where there is no robing room for force in a unipolar world: counsel Colm Allen in the course of counsel, as is frequently the case recent developments the recent Tim Allen trial. In in small rural venues’. Judge Peter Smithwick relating to Iraq. The lecture will take place on Thursday 27 February at 7.30pm in the Law Society’s Education Centre at Advanced advocacy for solicitors course Blackhall Pace. For further he Law Society is to run its evidence. This will be led by Institute for Trial Advocacy information, see www.isil.ie. Tsecond Advanced advocacy Dr Paul Anthony McDermott, (NITA). Demand is expected to course for solicitors (see this and followed by a practical five- be high for the limited number TIME WAITS FOR NO MAN month’s CLE brochure for day, full-time intensive course of available places, and anyone Probate specialists Fallon details). The course starts in in advocacy from 15 to 19 interested in the course should & Stephenson, Solicitors, late spring with a series of September, led by tutors from apply by completing the form will be a hosting a weekly seminars/workshops in the US-based National in this month’s CLE brochure. seminar entitled How to get a grant in four weeks! on 28 February in Dublin’s Procedures for changing company names Westbury Hotel. For he Companies Registration that where the company is in As a result, a company seeking further information, TOffice has issued a notice default of its annual return approval of a name change contact Fallon & telling companies how they can filing obligations under should ensure that it is up to Stephenson on tel: 01 change their names by special sections 125 and 127 of the date with its annual returns 2756759 or e-mail: resolution, provided they have Companies Act, 1963, the because an application will not fallonstephenson@ the approval of the registrar of registrar may withhold his be approved if it is behind with eircom.net. companies. But the CRO says consent to any name change. its annual returns.

3 Law Society Gazette Jan/Feb 2003 News Australia continues to push envelope on reforming law of tort

ustralia’s experiments in reasonable person would have a defendant will be liable only Atort law reform have taken precautions against a risk for that part of the loss it is continued with the recent of harm, it is relevant to responsible for. The IPP report release of the second part of consider (among other things): rejects proportionate liability for the federal government’s •The probability that the personal injury and expressly review of the law of negligence harm would occur if care was declines to consider any reform (the IPP report). Although not taken of the law as it relates to pure prompted by concerns over • The likely seriousness of that economic loss or property personal injury law, the IPP harm damage. It is, however, to be report is a bold attempt to •The burden of taking pre- noted that other proposed harmonise the law across all cautions to avoid the harm, reforms in Australia do deal jurisdictions, and has and with this, in particular, both the ramifications well beyond its •The social utility of the risk- NSW draft bill and the federal original focus of personal foreseeable risk of harm creating activity. government’s corporate law injury law. (that is, a risk of harm of economic reform programme which the person knew or Other attempts at (CLERP). Reasonably foreseeable risk ought to have known). reformulating the test of The federal government has Although intended to apply to • It cannot be negligent to fail negligence – such as that in the indicated in CLERP9 that it will personal injury claims, the IPP to take precautions against a State of New South Wales’ seek the states’ agreement to report’s rewriting of the test of risk of harm unless that risk draft Civil Liability Amendment introduce proportionate liability negligence is widely applicable can be described as ‘not (Personal Responsibility) Bill 2002 in relation to property damage to other negligence claims. It insignificant’ – have not been as clear and and economic loss in order to is divided into two parts: reas- •A person is not negligent by structured as the IPP report limit auditors’ liability and allow onable foreseeability and the reason of failing to take proposal, and this could be the recovery from other tortfeasors ‘negligence calculus’. precautions against a risk model across all jurisdictions in such as directors. Part 6 of the It says that courts can often that can be described as ‘not Australia. NSW draft bill allows for a conflate two separate issues: insignificant’ unless, under defendant’s liability to be limited whether a risk is foreseeable, the circumstances, the Splitting responsibility to an amount reflecting the and whether the risk is more reasonable person in that Currently, where there are two proportion of the loss that the than fanciful or far-fetched. person’s position would have or more tortfeasors, a plaintiff court considers just. The report proposes three key taken precautions against can sue one, two, or all – elements be put into the risk. meaning that the tortfeasors (With thanks to the Issues Alert legislation. often have to turn to each bulletin of Clayton Utz, Solicitors, •A person is not negligent by The second part of the analysis other to ensure each pays their Sydney, Melbourne, Brisbane, reason only of failing to take is the negligence calculus. In fair share. A remedy for this is Perth, Canberra, Darwin. Thanks precautions against a determining whether the proportionate liability, in which also to Michael V O’Mahony)

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4 Law Society Gazette Jan/Feb 2003 News Society’s anger over building VAT hike he Law Society has ‘Purchasers entered into contracts on or before budget Tprotested to finance these contracts in good faith at day will be allowed ‘a minister Charlie McCreevy the agreed contract price’, said reasonable period within which over the increase in VAT on O’Connor. ‘It would be to have their homes building agreements from inequitable if a purchaser, constructed and completed to 12.5% to 13.5%, describing the perhaps having stretched their satisfaction and that the issue as ‘of paramount himself to the limit in order to old VAT rate would apply in importance’. The change was acquire a property, should be respect of these contracts until announced in the recent budget faced with an additional VAT completion’. and applies to contracts from 1 charge in relation to payments However, it looks as if the January. On 9 December last, arising under a contract that he arguments have fallen on deaf John O’Connor, chair of the had bound himself to prior to ears. In a bland reply to society’s Probate, the budget’. O’Connor, the minister’s Administration and Taxation This view was backed up by department restated the new Committee, wrote to the the Conveyancing Committee, position introduced by the McCreevy: bland reply minister pointing out that the whose chairman Pat Dorgan budget and baldly declared that change could have ‘significant has also written to minister there would be no transitional and perhaps unintended McCreevy, arguing that house prices’ or, alternatively, measures. ‘The minister hopes consequences’ in relation to building agreements should be that there should be a that this explains the position building and land purchase exempt from the VAT increase transition period during which for you on this occasion’, the contracts. ‘in the interests of stabilising purchasers who had signed letter concludes.

Advertising ban comes into force UNFAIR CONDITIONS: A CORRECTION evere restrictions on required. Law Society president The article Unfair conditions: has the penny dropped? in the last Spersonal injury advertising Geraldine Clarke welcomed issue (page 6) contained a few errors, as published. In particular, by solicitors came into effect at ‘the closing of a controversial the words ‘after closing’ should not have appeared in the final midnight on 31 January. chapter on personal injury paragraph. To clarify, any problems arising from implementation of Phrases such as ‘no foal, no fee’, advertising by solicitors’, and any of the 15 prohibited special conditions in building contracts will ‘most cases settled out of court’ added: ‘We are delighted that, invariably arise prior to closing. Following the ruling by the High and others that might as a result of the new legislation Court in December 2001, and as noted by the Conveyancing encourage personal injury and the society’s regulations, all Committee in the October 2002 issue of the Gazette, these 15 litigation are now banned, as is objectionable personal injury sample conditions are unenforceable. But they are only ‘advertising in inappropriate advertising by solicitors, which unenforceable in practice if we, as solicitors for purchasing clients, locations’, such as hospitals, has diminished the public know that they are unenforceable. If we don’t know, our clients funeral homes or on the backs esteem in which the profession certainly won’t. If we allow them to be enforced, our clients will of buses. Strict compliance with is held, will now become a proceed on their unhappy way … Pat Igoe the new regime will be thing of the past’. ONE TO WATCH: NEW LEGISLATION The Domestic Violence partem in a manner and to an The minister also used the of one party, in the absence (Amendment) Act, 2002 extent which is disproportion- opportunity to address one of of the other, and that when After a quick passage through ate, unreasonable and unneces- the other principle concerns the full hearing with both par- the Oireachtas, this act came sary’. The chief justice stressed with the 1996 act. The ties present took place, the into force on 19 December last that the principle of an ex parte amendment act additionally respondent did not know what to remedy the effects of a order in these matters was not provides that an application had been said at the time of Supreme Court decision of 9 objectionable. The problem lay for an ex parte order must be the application and what case October 2002 (K v Crowley and with the time for which such an grounded on an affidavit or he had to answer. The respon- the AG ), delivered by Keane CJ. order could continue before a information sworn by the dent could therefore be at a He held that the provision in the full hearing to discharge it or applicant and that a note of serious disadvantage. Domestic Violence Act, 1996 confirm it. In Mr K’s case, the the evidence given is to be Now the injustice of the which permits a court to grant return date given was almost made by the judge, by the respondent not knowing what an interim barring order without three months later. applicant’s solicitor and has previously been said in a time limit on an ex parte The new act remedies this by approved by the judge, or as court should no longer occur. G application was unconstitution- providing for a return date of no otherwise directed by the al. It deprived the respondent in longer than eight working days judge. This addresses the Alma Clissmann is the Law such a case of ‘the protection after the granting of the interim concern that orders were Society’s parliamentary and of the principle of audi alteram barring order. being granted on the evidence law reform executive.

5 Law Society Gazette Jan/Feb 2003 ASBESTOS – EMPLOYER’S AND OCCUPIERS’ NIGHTMARE?

n recent times Asbestos has exploded into the news as an issue that faces many employers Iand occupiers. On the World’s Stock Markets major PLC share prices have slumped on rumours of enormous liabilities. Many employers and occupiers are facing claims from persons with no physical symptoms who have been exposed to asbestos often described in the media in graphic terms. Many people are deeply alarmed when they discover that there is Asbestos in their environment and litigation can quickly ensue.

Yet Asbestos can be found in one form or another in almost every building and home in Ireland constructed before the ‘90’s. Production of Asbestos Cement Sheeting and roof tiles in Ireland only ceased in 1998. Much of the drinking water consumed in Ireland passes at least some of its journey through Asbestos Cement pipes. Countless commercial and agricultural buildings are clad in Asbestos Cement sheets. No one is suggesting that these should be ripped down and that anyone near them is at risk of sudden death. However Asbestos related illness is now the number one killer work related disease in the UK. Practitioners in Personal Injury need to under- stand the issues in order to advise clients faced with Asbestos exposure.

The Association of Consulting Forensic Engineers is holding a Seminar to inform Practitioners in this important area. The speakers will be Professor Muiris Fitzgerald, Dean of UCD Medicine Faculty and leading Irish authority who will speak on the health risks facing a person exposed to Asbestos. Peter Byrne (formerly with Eolas) of Asbestos Consultancy Services will speak on where you might find harmful asbestos and what must be done. Finally Paul Romeril, Consulting Forensic Engineer will consider the difficult issue of who an affected Occupier might consider pursuing for losses from Asbestos problems.

ACFE Seminar on Asbestos – Employers and Occupiers Nightmare? Friday 21 February 2003 @ The Institution of Engineers of Ireland, 22 Clyde Road, Dublin 4 Registration: 1.30 pm Seminar Closes: 5.00 pm Cost: €175 per delegate

To reserve your place, please send cheque and details before 14 February 2003, to Aisling at Romeril Forensic Engineers, 26 Upper Pembroke Street, Dublin 2 (places are limited so register early). Tel: 01 662 0448 Fax: 01 662 0365 Cheques payable to “Association of Consulting Forensic Engineers” FURTHER TO OUR BROCHURE FEATURED IN THE DECEMBER ISSUE, AVAILABILITY IS NOW LIMITED [ CLOSING DEADLINE 21ST FEBRUARY 2003 - DETAILS OVERLEAF [ Istanbul 2003 LAW SOCIETY OF IRELAND ANNUAL CONFERENCE

23-27 April, 2003

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Price will be based on the charter package but will not include airport transfers and may incur airline and hotel surcharges.

REGISTRATION FEE Payable by delegates only and not accompanying persons - €100.00

BOOKING ARRANGEMENTS The closing date for receipt of bookings is 21st February 2003. Please complete the reservation form and return with deposit of €400.00 per person travelling.

CONTACT DETAILS If you would like any further information please contact: Sarah Ellins (Law Society) Tel: (01) 672 4823 Email: [email protected]

CANCELLATIONS • Delegates are advised that cancellations made after 21st February 2003 will be subject to a 100% cancellation charge (full invoiced amount). •Travel insurance will be automatically invoiced at approximately €26.00 per person unless delegates indicate on the reservation form that they have their own insurance and provide the name of the company with whom they are insured. • No contract shall arise until a full deposit has been received and a reservation form (which will be sent with written confirmation of acceptance of the reservation) has been signed and returned.

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All delegates will be accommodated in the Conrad Istanbul****. The hotel offers a choice of restaurants, bars and tea lounges, room service, TV, air-conditioning, healthclub,I fullystanbul equipped gym, indoor and outdoor swimming pool, hair2 and beauty salon. 3 PROGRAMME 00 WEDNESDAY, 23RD APRIL 2003 •Arrival at Istanbul Airport. Transfer to hotel for check-in and conference registration • Welcome Reception for all participants – sponsored by Osborne Recruitment Venue: Conrad Istanbul

THURSDAY, 24TH APRIL 2003 • Day tour on a Bosphorus Cruise departing at 10.30am. Followed by a visit to the Spice Market with a stop-over for shopping and lunch (not included) at leisure • Evening at leisure.

FRIDAY, 25TH APRIL 2003 • Conference Business Session – The European Convention on Human Rights: Its Implications for Lawyers - sponsored by Jardine Lloyd Thompson Ireland Limited and Solicitors’ Mutual Defence Fund Limited The distinguished speakers will guide delegates through the principles of the Convention, the proposals to implement it into Irish Law, its implications for solicitors and other lawyers in the EU and in Eastern European Countries aspiring to join the EU Venue: Junior Ballroom, Conrad Istanbul • Half-day tour to the Blue Mosque (2pm – 5.30 pm) • Evening at leisure

SATURDAY, 26TH APRIL 2003 • Half-day tour to Topkapi Palace (10.30am – 1.00pm) • Afternoon at leisure • Reception, Conference Banquet and Dancing – sponsored by Bank of Ireland Venue: Ciragan Palace (Dress: smart informal)

SUNDAY, 27TH APRIL 2003 • Morning departure

‘The European Convention on Human Rights: Its Implications for Lawyers’ Letters Letters

Conveyancing for slow A few more bob for the learners? builders From: Mark Fitzgerald, Edward From: Anthony Harris, Anthony contained in paragraph 6(b) of Fitzgerald & Son, Solicitors, Co Harris & Company, Solicitors, the contract states: ‘the Mayo Dublin contract price shall be am writing to remind note that the Law Society adjusted by the amount of any Ipractitioners representing Ihas made an appeal to increase or decrease in the cost builders of the practice note on Charlie McCreevy to revoke to the contractor of performing hybrid agreements contained in the application of the VAT this agreement, due to any the July/August issue of the increases for purchasers who alteration after the date of this Gazette (page 46), together with signed contracts to buy agreement in the rate of the article Safe as houses in the properties from builders VAT’. January/February 2002 issue before the budget. This plea is Although VAT is charged (page 12). presumably on the basis that on purchases by the I recently received a hard-pressed purchasers, who contractor, the recent ‘building agreement’ from a signed up for a fixed price adjustment in VAT has a firm of solicitors which was not contract, cannot afford the neutral effect on ‘the cost to the only a hybrid of the standard Communities (Unfair Terms In increase. It is my belief that an contractor of performing these building agreement and of Consumer Contracts) Regulations examination of the 2001 Law agreements’ because, certain aspects of the general have both been specifically Society building agreement, presumably, all such conditions of sale, but also dealt with by means of practice under which most contracts contractors are VAT- contained nearly all the terms notes, and that use of same arise, shows that they don’t registered and can, therefore, which were specifically must be resisted by purchasers’ have to. reclaim the VAT whether it is designated as being unfair in solicitors. Second, I would Under the terms of that 12.5%, 13.5% or 50%. the article. It appears that they remind practitioners that where agreement, ‘contract price’ is This, it appears to me, were reproduced, word for they accept these conditions said to mean ‘the sum of euro obliges the builder to accept word, from the very article and/or hybrid agreements, they xxx (to include VAT), being their gross price, but now outlawing them! are not only placing themselves the price of works (as in inclusive of VAT at 13.5% I am writing not only to and their clients in an invidious hereinafter defined)’. It does rather than 12.5%, if the sale remind practitioners that the position, but also that they will not state whether this gross closes and the VAT invoice is, use of hybrid not be in a position to give an contract price includes VAT at therefore, dated after 1 contracts/building agreements unqualified certificate of title to 13.5% or 12.5%. January. I would welcome and the inclusion of terms the financial institution On the other hand, the other practitioners’ comments which breach the European involved. price variation clause on this interpretation. Not a good war, but The future’s so bright a great war I have to wear shades From: Johnnie McCoy BL, Law War. In my opinion, the Law From: David Hodnett, of the annual report? I can Library, Four Courts Society memorial complements Competition Authority, Dublin 1 only conclude (age being n behalf of the Bar Great the bar memorial exceedingly t has been discerned, in the immaterial) that these OWar Commemoration well. Ipast, that some lawyers hold members are immortal. I look Committee, may I, through On a practical note, the quite a high opinion of forward to the upcoming CLE your publication, congratulate corridor in which the bar themselves. I wonder if this seminar on how to attain the members of the Law Society memorial is situated has explains the significant amount immortality as a solicitor. on the recent installation of the become known as ‘memorial of solicitors to whom age is Presumably, someone will war memorial to those solicitors corridor’. I wonder what name apparently ‘not applicable’ as know the name of a good and apprentices who paid the will emerge for the site of the represented in the age profile conference centre in Tir na supreme sacrifice in the Great Law Society memorial? of members shown on page 34 nÓg?

9 Law Society Gazette Jan/Feb 2003 Letters I don’t know much about investing, but … From: John de Vere White, de Paris in 1900 and two in sensible tax scheme) which Veres Art Auctions, Dublin 2 America (1913 and 1939). The cost in the region of stg£1.5m. would like to take issue with study showed some 50 years Thus, investors have possibly IMr Brian Weber’s article in later that, of the 850 American missed the boat in the case of your December issue (page 38), artists that were included in Le Brocquy. where he asserts that: ‘Art is a these exhibitions, the vast If you are going to invest in poor investment’. majority had disappeared art, you must allow yourself In making his case, Mr without trace. I do not think time. Quality works are scarce Weber devotes a lot of this is a realistic basis for and collections cannot be built attention to the infamous drawing a conclusion that ‘art overnight. Unfortunately, the British Rail Pensions Fund’s is a poor investment’. Sole majority of investors are involvement in the art market concentration on one school of impatient and advisers (who in the mid-1970s. The modus painting, linked to bulk buying, are hard to find) believe they operandi was the acquisition of is a recipe for disaster. James Joyce by Louis le Brocquy must strike while their client is 2,400 works over a five-year In my opinion, art will show enthusiastic, and thus quality period. In my opinion, quantity a good financial (not to This is especially relevant to is sacrificed for quantity. rather than quality must have mention aesthetic) return if specific artists, as the Mr Weber concludes his been the yardstick used by the one follows certain guidelines. popularity of an artist can article by quoting valued fund. The article goes on to say At the outset, I believe one has jump overnight. investor Scott Black, who that ‘no attempt was made to to be prepared to take a long- Louis le Brocquy is a prime makes the point that you manage the portfolio’. This is term view – about ten years. It example. In the late 1990s, the should only buy art for the hardly a prudent way to go is also important to time one’s highest price ever paid for his love of art. I would echo these about investing in art – or entry into the market. The art work was stg£120,000, and sentiments. However, I would investing in anything for that market, like all financial between €15,000 and €20,000 also add that if you love your matter. markets, swings up and down would purchase a major work. art and go about acquiring it Mr Weber discusses a study and it is important not to come Yet last year the nation was in an ordered professional of three exhibitions: one in into the market at the top. donated a le Brocquy (under a manner, it will turn out to be a sound investment. One striking example of this is the Allied Irish Bank collection. Camden Quay Return of post Here, all the correct criteria were used in assembling this Courthouse 2002 From: Frank O’Mahony, Bantry, County wonderful collection and the From: An anonymous tall practitioner, Cork Cork shareholders can rest assured Oh sloping floor Courthouse with low level ceilings, Unanswered mail! The golden rule that a very healthy investment Heaving with throngs of half washed beings, Is always broken by legal mules has been created. A steaming writhing sweaty melee, The sods, the clods, the hoors’ ghosts A dirty old place where we go – for a fee Ignore requests – ‘Return of Post’ SOLICITORS’ Once a place of seed and animal feed, I’m upright, just, with standards high, Recently a place where rats would breed, My practice quite exemplary – HELPLINE Slop paint on the wall and cover the faults, But colleagues’ standards? Hoors’ ghosts The Solicitors’ Helpline is By magic it’s suitable for Silks to lead! Will not respond – ‘Return of Post’ available to assist every Court 3 is lop sided, though the bench is upright, Their bloody motions never halt, member of the profession Your head’s near the ceiling in artificial light, Those claims for judgment in default. with any problem, whether It stifles your plea and it’s oxygen free, But for themselves, those tardy ghosts, personal or professional. And you’re grateful for any respite Still never answer – ‘Return of Post’ The service is completely confidential and totally If a Judge from abroad came to Cork to sojourn, But when the trumpet sounds above independent of the Law Or a horse or a dog for a bed was to yearn, With confidence I’ll write the Dove Society. They would look at this place, do a quick about face, ‘Send down the keys, Oh Holy Ghost – And our facilities they promptly would spurn. And beam me up – ‘Return of Post’ If you require advice for any reason, phone: 01 Oh, save us from Civil Servants and every committee, The editor notes: 284 8484 Just give us a nice Courthouse in Cork by the Lee, Poetry Ireland can be contacted at While wasting our money, remember this Sonny, Upper Yard, Dublin Castle, It’s ye serve the people, not the people serve ye! Dublin 2. 01 284 8484

10 Law Society Gazette Jan/Feb 2003 Letters

No such thing as a free lunch YOUR MAGAZINE From: Jack Phelan, Cork wine’ – who hosted the lunch which might arise from what NEEDS YOU! refer to the photograph and were honoured that the was published. Lastly, very The Gazette is your Ipublished in the December distinguished president and many thanks to Colm Price for magazine and we want to issue of the Gazette (page 53) director general were able to his amazing energy not only in hear from you. If you have which showed those persons take the time off from their organising our 50th anniversary news, views or just want to who attended the lunch to mark busy schedules to lunch with us. lunch, but also our 45th and 40th write an article, please drop ‘50 years as solicitors’, from the So, please print this letter to anniversary get-togethers as us a line at Law Society ‘final of 1952 – Michaelmas correct any misconceptions well. Gazette, Blackhall Place, term’. Dublin 7 or you can e-mail us I was shocked to learn that on [email protected]. ‘the Law Society recently hosted We are particularly a lunch’. I was particularly interested in news from bar shocked as the 1952 bunch not associations around the alone paid for the lunch, but country – promotions, also paid for the lunches of both retirements, mergers, the Law Society president and gossip. If you have it, we director general. Indeed, it was want it! G us – ‘the last of the summer

Closing date for receipt of application forms: 20 February 2003

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Applications must be made on the official application form No application forms will issue by post on foot of requests received on the closing date.

11 Law Society Gazette Jan/Feb 2003 Cover story

Things were a bit different back in 1883: ‘moron’ and ‘imbecile’ were CRAZYrecognised medical terms, and criminals could plead ‘lunacy’ as a defence. Over a century later, the government has finally got round to updating the law on criminal insanity. Dara Robinson discusses the main points in the long-overdue Criminal Law (Insanity) Bill, 2002

t is a long time since psychiatrists have used the and importing the UK concept of diminished term ‘lunatic’ to describe a person who was responsibility. But despite many promises of action, mentally ill, but the expression lingers in the no legislation has been brought until now. law on criminal insanity. A person arguing that The new bill addresses all of these issues, and Ithey should be excused liability from guilt on a more besides. It sets out to affirm and codify the criminal charge by virtue of mental disorder must Irish common-law decisions on criminal insanity. It still persuade a jury to bring in a special verdict provides for a comprehensive treatment, both legally under the Trial of Lunatics Act 1883. Not surprisingly, and medically, for those whose mental state may this state of affairs has been the subject of increasing make it impossible to participate in the trial process criticism, both from academics and from within the by providing a framework for determining ‘fitness legal profession. to be tried’. It introduces the long overdue With the publication of the Criminal Law (Insanity) Bill, 2002, it is proposed to bring this often contentious area of our law and procedure up to date. In this long-neglected field, almost any change would have been welcome, but the legislative proposals are both comprehensive and considered, and offer a framework appropriate to the 21st century. Roughly a generation ago, the Henchy Committee was asked to advise on the law relating to insanity and the criminal law. Its recommendations, delivered in 1978, were far from radical. Among other things, it suggested redrafting the provisions relating to insanity verdicts, a system of tribunals to monitor and advise on the release of those persons accused who were found not guilty by reason of insanity,

12 Law Society Gazette Jan/Feb 2003 Cover story situation notion of ‘diminished responsibility’. Finally, it sets illness, and this is now reduced to the single issue of up a system for the on-going review of the need to ‘mental disorder’. This will be defined in section 1 as • New definition detain those who have offended while suffering from including ‘mental illness, mental handicap, dementia of mental mental disorder. or any disease of the mind’. Intoxication is illness specifically excluded. • Diminished How do you define insanity? Whether a given individual comes within this responsibility The nub of the bill is a new definition of what widened definition will continue to be a matter for as a defence constitutes an expert evidence, and there will of course always be • Fitness to be excusing controversial cases. No doubt, many psychiatrists tried mental will continue to assert that individuals suffering from MAIN POINTS personality disorder, even severe disorder, will fall outside the defence. This continues to be an area of medico-legal controversy, both in Ireland and other jurisdictions, and not specifically providing for such persons in the bill will leave open the question as to whether such individuals can avail of the defence. Doctors in modern times have tended to emphasise the element of ‘treatability’ as part of their definition of mental illness, but here the definition includes both dementia and mental

13 Law Society Gazette Jan/Feb 2003 Cover story

Thus far, there is very little alteration to existing practice. The major changes in this part of the bill come into effect once there is a finding of the special verdict.

On-going assessment of mental health At present, under the provisions of the act of 1883, the court is obliged to commit the defendant to the Central Mental Hospital, until released by the executive. Prior to Gallagher v DPP ([1991] ILRM 339), it was assumed that the courts would determine the release date on a finding of insanity. However, the Supreme Court in Gallagher’s case vested the decision in the government. In turn, the fact-finding exercise, as to whether the person still suffered from a mental disorder and might be a danger to himself or others, has over the last 12 years been delegated to an ad hoc advisory committee reporting to the minister for justice. The advisory committee’s findings are non-binding on the executive. All of that will now change. The Joker: Gotham Since the finding of insanity at trial relates to the City’s clown-prince of handicap, conditions which tend not to respond to time of the commission of the offence, the first task crime. And he’s mad treatment. for the court under the new provisions is to consider as a bag of cats Once expert evidence establishes the appropriate the state of mental health of the defendant at the level of mental disorder, section 4 of the bill provides time of the return of the special verdict. Section 4(2) for the defence to be raised in either summary now obliges the court to commit to hospital in the proceedings or trial on indictment. Our common- old way only if the court has evidence that the law rules on the situations in which the defence is accused is still suffering from a mental disorder and available are expressly preserved by section 4(1). is in need of in-patient care or treatment. These are that the accused was suffering from a Section 4(3) provides a completely new power to mental disorder to the extent that they ought not be remand a person in custody for assessment, initially held responsible because: for 28 days, but extendable for up to six months. • They did not know the nature and quality of the This is the first appearance in Irish criminal law and act procedure of a power to remand a person to hospital • They did not know that what they were doing was for assessment, and is a power that has been sadly wrong, or lacking to date. • They were unable to refrain from committing the A consultant psychiatrist must now assess and act. report on the detained person, and the court can only commit a person without limit of time, as was The latter principle, of course, derives from the Irish the practice heretofore, on receipt of evidence from case law, particularly Doyle v Wicklow Co Council a psychiatrist that detention is necessary. There is no ([1974] IR 55), and the former two were laid down as power in the bill for the court to remand such a the McNaghten Rules, the original English authority person on bail for the assessment. on the insanity defence. If the court – be it judge and jury in the Circuit New Mental Health Review Board and Central Criminal Court or judges sitting alone If the court commits the person without setting a in the District or Special Criminal Court – is time limit, the entirely new Mental Health Review persuaded that the defendant has made out the Board will assume jurisdiction over the case. defence, the court shall return a ‘special verdict’ of Although it hasn’t been established yet, the board ‘not guilty by reason of insanity’, as opposed to the will hold sittings at intervals of no more than six existing ‘guilty but insane’. months in respect of every person who is the subject of the special verdict, including all those who were Notifying the prosecution so acquitted prior to the commencement of the act. The bill also provides, in section 14, for the advance Under a legally-qualified chairperson of no less notification by the defence of evidence to be led that than ten years’ standing, the board is to be will touch on the insanity issue. Although a new rule independent in its functions and to have many of the of law, this provision in reality merely codifies long powers and privileges of a court. The board can practice in the courts, as the prosecution would assign legal representation to the person (now a always expect, and get, an opportunity to instruct its patient), hear evidence, commission reports, compel own expert on the question raised, and for that the attendance of witnesses, and, most importantly, reason would always be put on notice by the defence. make orders in relation to the future of the patient.

14 Law Society Gazette Jan/Feb 2003 Cover story

The questions for on-going determination by the Many lawyers who practise regularly in the board differ, depending on whether the patient was Central Criminal Court are critical of the narrow detained on foot of a finding of unfitness to be tried basis for the insanity verdict, and the difficulty in (discussed below) or insanity. In the case of the latter, persuading juries to return such a verdict. Hugely the board must be satisfied that the person needs on- controversial cases such as those of John Gallagher going care and treatment as an in-patient. and Brendan O’Donnell are believed to have The bill does not specifically provide for instilled in juries an air of caution, possibly in the immediate discharge once the need for treatment has mistaken belief that the defendant will walk free if ceased, but rather section 12(9) permits the board to they acquit on an insanity basis. make ‘such order as it thinks proper for the patient’s The availability of diminished responsibility will disposal’. Presumably, once the need for treatment hopefully mean that many cases where there is a Batman: Gotham’s has ceased, the board will order early discharge so as caped crusader. He’s substantial element of mental disturbance, but short to comply with constitutional imperatives. This not much better, of a full insanity defence, will be treated more compares with the existing position, where people but dresses more sympathetically and humanely from now on. can only be detained by the executive if mentally conservatively disordered and a danger to themselves or others. Where the patient has been found unfit to be tried, the board has two options: if the patient is no longer unfit, he is to be brought before the court for disposal; if he is still unfit, the board can order his continued detention or conditional or unconditional release. The powers and obligations of the board are set out in sections 11 and 12 and the first schedule to the bill. It is clearly anticipated that the board will take an active role in the review of patients under its aegis, and it may, under the bill as drafted, review patients on its own initiative. One area of existing uncertainty that remains to be resolved is granting the board the power to order the conditional release of a patient. This is an open question at the moment but has presented no great practical problems, in part because the numbers of patients coming before the ad hoc advisory committee Fitness to be tried are low, but also because patients tend to be pleased The remaining substantial area addressed by the bill to have the process of release initiated and so are is that of fitness to plead, now to be known as happy to comply with conditions for a period of time ‘fitness to be tried’. Section 3 of the bill is devoted in the knowledge that full release is down the road. ‘Hugely entirely to this topic. It both restates existing law on the subject and provides for the proper disposal of Diminished responsibility controversial people found ‘unfit’. The other major change in the bill is the cases are The issue can, as before, be raised by the court, introduction of the verdict of diminished prosecution or defence, and the person must suffer responsibility. This has, as noted earlier, long been believed to the appropriate level of mental disorder as defined. considered a significant lacuna in Irish criminal law. have instilled in They must then, essentially, be unable to participate Based on, but narrower than, the provisions of the meaningfully in the case by reason of the disorder. UK Homicide Act 1957, this defence is applicable juries an air of The determination will be made by the judge alone, only to charges of murder. caution, be it the District Court or on indictment. As before, In essence, the defendant will have to show a there is provision to hear the evidence as to likely mental disorder as defined in section 1, but not so possibly in the guilt or innocence so that people may be acquitted, severe a disorder as to justify a full insanity defence. mistaken belief even if arguably unfit, on the basis that the case The defence operates to reduce a charge of murder against them is weak. to one of manslaughter, and sentence (up to life that the In the event of a finding of unfitness, the power to imprisonment) is then at the discretion of the court. defendant will commit arises, but is optional. As will be seen below, It should be noted that in the Central Criminal the prosecution has a right of appeal against a refusal Court on a trial for murder, the bill provides that walk free if they to commit. The court may also remand, in custody only the jury can return a verdict of diminished acquit on an only, for an assessment of the need to commit. The responsibility, so strictly it cannot be put forward by making of a committal order will trigger the powers way of an ‘acceptable plea’. In practice, no doubt, if insanity basis’ of the review board. the DPP is prepared to accept such a plea, a jury will Sections 6, 7 and 8 set out a comprehensive be empanelled in the ordinary way, and a limited statement of rights of appeal in respect of all findings body of evidence put before the jury who will then be under virtually all of the insanity or fitness questions. directed by the trial judge as to the available verdicts. The diminished responsibility verdict, no doubt

15 Law Society Gazette Jan/Feb 2003

Cover story because it is a jury verdict, is excepted and is not appealable. It would appear that only the erstwhile defendant is entitled to appeal an insanity acquittal, on the grounds of unfitness to be tried, no relevant mental disorder or insufficient evidence as to the actus reus. Either the prosecution or defence can appeal a finding of unfitness or the making of an order remanding in custody for assessment. An appeal against a finding of unfitness can result in an acquittal, an order for a trial or for a retrial on the unfitness issue. Likewise, either prosecution or defence can appeal against an order in respect of a remand or committal, or a failure by a court to remand or commit, and the Who says money can’t appellate court shall enjoy the same jurisdiction on a buy you happiness? counterparts in civil law, the Mental Health successful appeal as the original court. Commission, set up under the Mental Health Act, Given the delay in bringing forward this draft 2001 to supervise civil committals and still nowhere legislation, it is fervently to be hoped that there will near being operative. be no delay in implementation following its passage With universal agreement among judges, through the Oireachtas. The diminished practitioners and academics that our insanity laws are responsibility provisions seem quite straightforward embarrassingly anachronistic, the government, with and might produce a significant saving of resources if at least half an eye on the European convention on trials are to be shortened as a result of agreement human rights, has at last published legislative between prosecution and defence as to the proposals which threaten to bring our outmoded law appropriateness of the verdict in particular cases. into the modern era. G However, the Mental Health Review Boards will require significant funding, and hopefully they will Dara Robinson is a partner in the Dublin law firm not be delayed to the same extent as their Garrett Sheehan & Co.

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17 Law Society Gazette Jan/Feb 2003 Planning Requiring property developers to include a portion of social and affordable housing in their developments was a brand new idea in 2000, but this requirement has since been modified and tightened by the Planning and Development (Amendment) Act, 2002. John Gore-Grimes outlines the new planning regime

he Planning and Development Act, 2000 between the authority and the developer to established the concept of social and include the site costs calculated at existing use affordable housing as an objective of value and the development costs, including profit, planning legislation, and introduced a as agreed between both parties’. The sites to be T mechanism whereby developers of transferred must be located on the developer’s site residential developments were required to cede land, at in respect of which an application for permission its existing use value, to the planning authority. Section has been made. 96(2) of the act provides that before granting planning permission a local authority (or the board on appeal) Purpose of the amendment may insist that the developer enters into an agreement Although it has often been misunderstood in press with the planning authority over the development of reports and Dáil debates, the amendment act of 2002 housing land to which a specific objective applies (for does not in any way undermine the principle of a example, a housing strategy or development plan). housing strategy. The purpose of the amendment act CHANGE

The Planning and Development (Amendment) Act, 2002 has removed any discretion the planning authority had, and provides that a planning authority must impose such a condition in a relevant residential or mixed (including residential) planning permission. The 2000 act offered three types of conditions which the planning authority may impose by way of agreement between the authority and the developer: a) The transfer of ownership of land (that is subject to an application for permission to develop residential property specified in the agreement) from the developer to the planning authority for the provision of social and affordable housing b) Instead of transferring land, the developer may build and transfer completed houses to the authority or to persons nominated by the authority. The number and description of the houses will be specified in the agreement, and they will be transferred at a price determined on the basis of the site cost of the houses. This is calculated at the existing use value and the • Planning and building and development costs, including profit, Development as agreed between both parties. The houses to be (Amendment) transferred must be located on the developer’s site Act, 2002 in respect of which an application for permission • Additional has been made options for c) Alternatively, the developer can transfer fully or developers partially serviced sites to the local authority or its • Withering nominee. The number of sites will be specified in permissions the agreement and the developer is entitled ‘to be

MAIN POINTS paid attributable development costs as agreed

18 Law Society Gazette Jan/Feb 2003 Planning

is to ensure the delivery of social and affordable transfer of land within the site only), and no housing in a less bureaucratic way by providing new applicant can be forced to adopt the alternatives options for developers as to how they can comply which are offered by the amendment act. However, with social and affordable housing conditions. it would probably be in the interest of the developer The existing options listed in a), b) and c) above to use the new alternatives in finalising an have not been altered. Section 3(3)(a) of the agreement with the planning authority. amendment act makes it absolutely clear that the planning authority may still enter into an agreement Additional options with an applicant for housing permission to reserve The amendment act offers additional options to the land within the proposed development for the local options a), b) and c) listed above: authority, or to provide houses or sites within that 1) The transfer to the planning authority of the development. ownership of any other lands within the The percentages to be transferred depend on the functional area of the planning authority housing strategy of the local authority. A common 2) The building or transfer, on completion, to the figure is 20%, which cannot be exceeded, but in ownership of the planning authority or to the Fingal County Council, for example, some areas are ownership of persons nominated by the authority zoned for 14% and others for 7%. of new houses on other lands within the The amendment act preserves the right of an functional area of the planning authority. The applicant to enter into an agreement under sub- number and description of these houses may be paragraph 3(a) as a matter of right (namely, the specified in the agreement OF PLAN

19 Law Society Gazette Jan/Feb 2003 Planning

land than is specified in the housing strategy, and WHAT THE 2002 ACT SAYS the doing of one or more of the things referred to Section 4(96)(b) of the Planning and Development (Amendment) Act, 2002 in options a), b) and c) and 1 to 4 above contains a number of definitions. 6) Combination of doing two or more of the things A house means: referred to in options a), b) and c) and 1 to 5 •A building or part of a building which has been built for use as a dwelling, and above. • In the case of a block of apartments or other building or part of a building comprising two or more dwellings, each of those dwellings. If any of these alternative options are used, the value of the property or amounts of money paid under the Market value in relation to a house means the price which the house might agreement must be equivalent and never greater than reasonably be expected to fetch on sale in the open market. the value of the land that the planning authority Relevant house means a house for which permission would have ceased to have would have received, if the agreement solely effect or expired but for section 4 of the Planning and Development (Amendment) provided for a transfer of land within the site that is Act, 2002. the subject matter of the planning permission, and it Note: There has been some discussion on the wording of this definition, and must be equivalent to the percentage specified in the some feel that the reference to section 4 should, in fact, be a reference to relevant local authority’s housing strategy. section 3. Section 3 got rid of the special type of withering permission which withered on 31 December 2002, or two years from the date of grant of Number of considerations permission, whichever was the later, if permission had been applied for after 25 If one of these new alternative agreements is August 1999. finalised, as envisaged by the amendment act, there Strictly speaking, section 4 does not cause a social and affordable housing are a number of considerations that must be permission ‘to cease to have effect or expire’. Section 4 restores sections 40, 41 addressed by the local authority before completing and 42 time limits to social and affordable withering permissions, and it imposes the agreement. These include the following: a levy where a social and affordable withering permission would have withered but 1) Does the proposed agreement contribute for the provisions of the amendment act. It is doubtful if this potential error will effectively and efficiently to the achievement of affect the provisions of the amendment act. the objectives of the housing strategy? 2) Will the agreement constitute the best use of the Additional provisions resources available to the local authority to ensure Section 4(96)(b) makes additional provisions. Where houses are not sold, the levy an adequate supply of housing? And what are the is determined by the market value of the house at the time of its completion. If financial implications of the agreement for the the market value equals or exceeds €270,000, the levy is 1%; if it is less than local authority’s functions as a housing authority? that sum, the levy again is 0.5%. 3) Will the agreement address the need to counteract Another change is that the section providing for the levy will not apply to the undue segregation of housing between people permissions for development consisting of four houses or less, or for a house on of different social backgrounds in the area of the land of 0.1 hectares or less. It should be noted that the amount of ground authority? specified in the act of 2000 was 0.2 hectares. This has now been reduced overall 4) The terms of the agreement must be in to 0.1 hectares, and for exemption purposes. accordance with the provisions of the local Sub-section 96(b) does not provide any definite time for the payment of the levy authority’s development plan but merely states that the levy shall be made at such time as the planning authority 5) The timing of delivery of social and/or affordable specifies (and the time that is so specified may be before the date on which the housing. disposal concerned of the relevant house is effective). Any amount paid to the planning authority in accordance with this section shall be accounted for in a The local authority’s housing strategy specifies an separate account, and shall only be applied as capital for its functions under this estimate of the amount of social and affordable part by a housing authority, or for its function in relation to the provisions under the housing required in an area of the development plan Housing Acts, 1996 to 2002. during the period of that plan, and the estimates may One further apparent drafting error appears in section 96(8)(b) of the state the different requirements for different areas amendment act of 2000 which reads: ‘… or if the dispute relates to a matter within the area of the plan. In order to comply with falling within sub-section 7, refer the dispute under that section to the property the estimate provided in the housing strategy, the arbitrator etc’. The sub-section referred to as sub-section 7 should in fact be sub- agreement must ensure that the actual estimate of section 6. social and affordable housing required for the area during the period of the development plan will, in fact, be achieved as a consequence of the agreement. 3) The transfer of such number of fully or partially From all this, it can readily be appreciated that the serviced sites on any other land within the minister for the environment is committed to making functional area of the planning authority as the part V of the Planning and Development Act, 2000 an agreement may specify to the ownership of the effective piece of legislation and that the changes, planning authority or to the ownership of depending entirely on how they are operated, might persons nominated by the planning authority potentially make very little difference. It is clear that 4) Payment of an amount of money, as specified in the decision whether or not to allow the new options the agreement, to the planning authority offered to developers by the amendment act of 2002 5) Combination of the transfer of land within the will be entirely at the discretion of the local site of the developer, but for a lesser amount of authority, because these new options can only be

20 Law Society Gazette Jan/Feb 2003 Planning

incorporated in an agreement with the developer acceptable in terms of social integration’. where the planning authority is satisfied that items 1 The provisions in section 96(6) of the 2000 act are to 4 above have been complied with. now replaced by sub-section 6 of the restated section The Minister for the Environment, Martin 96 contained in section 3 of the 2002 amendment Cullen, has said: ‘Alternatively, the developer could act, which sets out the level of compensation payable make a payment to the local authority which will be where the ownership of land is transferred to the used for the provision of social and affordable planning authority to be applied to social and housing. However, I intend to convey to local affordable housing. If, instead of a land transfer, authorities my view that financial compensation to houses or sites are transferred, the equivalent site authorities, while an option, is the final option. All cost must also be calculated. other aspects will have to be exhausted’. In effect, the provisions dealing with the The reality is that setting aside 20% of land for consideration to be paid by the planning authority to transfer to local authorities in the present restrained the developer have not changed and the developer is financial climate is of little use in assisting a policy of entitled to either of the following options, whichever social and affordable housing. On the one hand, the is of greater value: local authorities will have to negotiate with • The existing use value of land, or developers in such a way that the agreement reached • If the land was bought (or a contract or option to delivers the best possible results in terms of social purchase the land was entered into) before 25 and affordable housing supply for their areas. On the August 1999, the price paid for the land together other hand, because they are left without money in with interest thereon. the present financial climate, they will inevitably have to look for cash in spite of the guidelines that A developer remains entitled to recover the building the Department of the Environment will inevitably and attributable development costs in relation to issue to local authorities. At the time of writing this fully or partially serviced sites or provision of houses, article, those guidelines have not yet been produced. whether provided on or off site, together with an The minister has also said: ‘I am determined that element of profit. this new flexibility in part V will not lead to builders Any dispute relating to the consideration shall be providing new estates at the edges of communities referred to the property arbitrator by the planning with no social links and no infrastructure. I will be authority or by any other prospective party to the setting firm guidelines for local authorities as to the agreement. Any dispute relating to an agreement types of alternative arrangements that will be under section 96 (other than an agreement relating

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Solve your storage problems with a new-style Gazette Telephone: magazine binder. Each easy-to-use binder takes a year’s worth of issues and is finished in blue leatherette with Signature: Please return to Law Society Gazette, Blackhall Place, Dublin 7. the Gazette logo in gold on the front and spine. Planning to value) may be referred by the planning authority or any other respective party to the agreement to An WHEN IS THE LEVY PAYABLE? Bord Pleanála for determination. The situation as to whether or not a levy is payable may be summarised as A further option that the amendment act should follows: probably have considered was the possibility of i) There is no levy payable in respect of a house built on foot of a planning providing the local authority with existing completed permission, the application for which was lodged before 25 August 1999 houses. ii) No levy is payable in respect of a ‘qualifying permission’ (where the application The planning authority is further restricted in for planning permission was lodged after 25 August 1999, and before the making an agreement with a housing developer in relevant planning authority incorporated its housing strategy in its development that it is also bound to consider the following plan) if either the entire house or the external walls have been completed matters for the purposes of the agreement: before 31 December 2002, or within two years of the date of grant of planning • The proper planning and sustainable development permission, whichever is the later of the area to which the application relates iii) No levy will be payable in respect of a house or houses or an apartment or • The housing strategy and the specific objectives of apartments (not exceeding four units), built on land which is 0.1 hectares or the development plan which relate to the less, even if built under a qualifying permission implementation of the strategy iv) A housing levy is payable in circumstances where either the house built under • The need to ensure the overall coherence of the a qualifying permission has not been built, or the external walls have not been development to which the application relates, completed before 31 December 2002, or within two years of the date of the where appropriate, and grant of permission, whichever is the later • The views of the applicant in relation to the v) In the case of a building estate, those houses built under a qualifying impact of the agreement on the development. permission which have been fully built, or the external walls of which have been completed prior to 31 December 2002, or within two years of the date of The act of 2000 provided a special category of the grant of planning permission, whichever shall be the later, are exempt from ‘withering permissions’ (see panel). It effectively the levy. However, the levy will apply to any houses which have not been fully meant that any permission granted on foot of an completed, or of which the external walls have not been completed prior to 31 application lodged after 25 August 1999, relating to December 2002, or within two years of the date of grant of planning housing where the external walls of the houses or permission, whichever is the later apartments had not been completed prior to 31 vi) Any house built on foot of a planning permission, application for which was December 2002, would lapse either on 31 December lodged after the local authority incorporated its housing strategy into its 2002 or within two years of the date of grant of development plan is not liable for a levy, but the social and affordable housing permission, whichever is the later. conditions will apply. The 2002 amendment act removed this category of withering permission in relation to social and affordable housing. The time limits set out in solicitor will have to look for this receipt, in addition sections 40, 41 and 42 of the act of 2000 now apply to the receipts for financial contributions contained to all grants of planning permission. However, in the planning permission. Once the receipt has section 4 of the amendment act provides that any been issued by the local authority, it shall be prima house built on foot of a permission, which would facie evidence that the liability for payment of that otherwise have withered but for the provisions of the amount has been discharged. amendment act, will be subject to a levy of 1% of the The act specifically provides that: sale price if equal to or in excess of €270,000, or a) A provision of a contract of a sale of a house 0.5% of the sale price if less than that amount. b) A provision of a contract for a building for a This section takes considerable trouble to ensure person of a house for his or her occupation that the levy is not passed on to the purchaser. The c) A covenant or other provision of a conveyance of planning authority is required to issue a receipt an interest in a house similar to a receipt for a financial contribution as d) A covenant or other provision of a lease or soon as the levy has been paid. The purchaser’s tenancy agreement in respect of a house, or e) A provision of any other agreement (whether oral or in writing), which purports to require the purchaser, the person WITHERING referred to in (b), the grantee of the interest or the grantee of the lease or tenancy (as the case may be) PERMISSIONS to pay the levy or to indemnify another person in The concept of ‘withering permissions’ has existed respect of that other’s paying the levy shall be void. for many years. The normal life of a planning It might be observed here that it would be very permission is five years, or such other period as difficult indeed to prevent a builder from may be specified in the permission, or as may be anticipating the levy and putting it in as part of the allowed by way of extension during the course of a purchase price in an indirect or general way. G development (see sections 40, 41 and 42 of the 2000 act). Once the provided time limit expires, the John Gore-Grimes is a partner in the Dublin law firm permission is said to ‘wither’. Gore & Grimes, and author of Key issues in planning and environmental law (Butterworths, 2002).

23 Law Society Gazette Jan/Feb 2003 Family law Interim measures A recent Supreme Court ruling means that the District Court can no longer grant ex parte interim barring orders under the Domestic Violence Act, 1996. Alan Shatter examines the reasons for the decision and its impact on those at risk

he Supreme Court in DK v Judge Timothy applicant spouse or a dependent child. The act • Domestic Crowley, Ireland, the Attorney General and envisaged that once such an order was made, it could Violence Act, Ors (9 October 2002) ruled that provisions remain in force until a subsequent application for a 1996 in the Domestic Violence Act, 1996 on the full barring order was heard or until the person barred • The Supreme Tmaking of interim barring orders were applied to the District Court to have the interim Court unconstitutional. This judgment and its implications order discharged. Consequently, the order could judgment are widely misunderstood. This brief article aims to remain in place for a long time before any further explained clarify the actual legal consequences of the decision court hearing took place. • Protection and highlight the family law protections still available orders still to spouses at risk from domestic violence. Dispelling the myths available The interim barring order in question in the A number of myths have developed in a short period Supreme Court case had been granted ex parte to a of time, arising from the Supreme Court decision. MAIN POINTS wife by the District Court. In other words, the The judgment is essentially concerned with the District Court had ordered the husband to be granting of ex parte interim barring orders by the excluded from the family home without any prior District Court. It does not in any way prevent the notice and without him being given an opportunity to District Court granting either safety orders or full respond to allegations made by his wife. barring orders to protect the safety and welfare of a Section 4(3) of the Domestic Violence Act, 1996 spouse or child or a co-habitee (in the limited provides for the possibility of such interim barring circumstances in which the 1996 act applies to co- orders being granted ‘in exceptional cases’, where habitees). Nor does the decision prevent the Circuit there is an immediate risk of significant harm to the Court or the High Court from granting a safety or THE SUPREME COURT DECISION elivering the judgment of the Supreme Court, Keane CJ fully outcome of family court proceedings. Drecognised the rights of spouses and children to be protected In the court’s view, the failure of the Oireachtas to impose any time against physical violence and the entitlement (I would say the limit on the operation of an interim order, even when granted ex parte obligation) of the houses of the Oireachtas to deal with the social evil in the absence of the person barred, was inexplicable and of domestic violence. The court also recognised that where ‘spouses constitutionally unacceptable. As a consequence, upon issue of a are still living together and one is being subjected to violence by the District Court barring summons, the District Court can no longer grant other which may also extend to the children, it may simply not be an ex parte interim barring order. practical’ for the spouse seeking a barring order to notify the other In theory, under the 1996 act, the court can still grant an interim spouse that such application is being made. order if the person against whom the order is sought is given prior The Supreme Court emphasised that ‘it is not the existence of a notice and an opportunity to be present in court to present his case. jurisdiction to grant interim barring orders on an ex parte basis which But there currently exist no District Court rules for the making of an creates a serious constitutional difficulty’, but rather the manner in interim application in this way. which the legislation provides for the granting of such orders. And it The Supreme Court acknowledged that ‘in exceptional went on to stress the importance of ‘fair procedures’ in the hearing of circumstances’, where there is a risk of ‘significant and immediate court proceedings, stating that a court order unilaterally excluding a harm’, it is justifiable for a court to make an ex parte order and spouse from a family home has ‘draconian consequences’, in that the anticipated the likely enactment of reforming legislation. Such person against whom the order is made is forcibly removed from the legislation should require that an order of this nature can remain in family home on the basis of allegations that he has had no force for no more than eight days, after which time a further court opportunity to answer. hearing must take place and at which, each party is entitled to give A person so excluded automatically commits a criminal offence if evidence to the court to enable it to determine what order (if any) it he or she fails to comply with such order, ‘even if it should should make. subsequently transpire that it should never have been granted’. The In its judgment, the Supreme Court specifically expressed approval Supreme Court also noted that a person alleged to be in breach of an for similar provisions contained in the Child Care Act, 1991. These interim barring order can be arrested without warrant by a garda allow health boards to get ex parte care orders in respect of children having a reasonable suspicion that he is in breach of that order. It at risk and require that, within eight days of the making of such order, also acknowledged that an interim order could prejudice the ultimate the parents are given an opportunity to come before the court.

24 Law Society Gazette Jan/Feb 2003 Family law

risk of arrest without warrant or criminal prosecution. However, non-compliance with such injunctions can ultimately result in the person injuncted being committed to prison for contempt of court.

Other protection orders Finally, the Supreme Court decision has not directly affected the entitlement of the District Court to grant a protection order. A protection order can be made by the District Court pending the hearing of an application for a safety or a barring order. It is also often made ex parte. Such orders do not exclude a spouse or co-habitee from the home but direct the person against whom it is made ‘not to use or threaten to use violence against, molest or put in fear, the applicant or a dependent child’. Where the couple are not living together, the order is ‘not to watch or beset the place’ where the applicant or dependent children reside. The availability of protection orders should ensure that, pending the enactment of new legislation, there remains in place at least some legal measure to provide a limited amount of protection for a spouse at risk. However, it is important to note that non- compliance with a protection order can result in a person being arrested by a garda without warrant and is a criminal offence. An ex parte District Court protection order, like an ex parte interim barring order, can remain in force for a substantial period of time without the spouse against whom it is made having an opportunity to present his side of the case to the court. A constitutional challenge to the validity of the barring order pending the hearing of either judicial statutory provisions, which allow for the making of separation or divorce proceedings. protection orders as currently framed, must therefore Where it is necessary to do so, the Circuit or the have a realistic chance of success. High Court can, under existing legislation, still grant To allow for the making of ex parte orders by the an interim or a full barring order pending the hearing District Court (be they protection orders or interim of judicial separation or divorce proceedings as long barring orders), amending legislation and rules of as a notice (known as a ‘notice of motion’) is first court should prescribe a time limit within which such served on the other spouse, giving him the orders can remain in force. They should afford an opportunity to respond to the allegations made. early opportunity to the person subject to the order However, it is probable (but not certain) that, as a to go court, so that the court can properly assess, in a result of the Supreme Court’s decision, both of these fair hearing, whether the order should continue or be courts will regard themselves as being currently varied or discharged. unable to grant ex parte barring orders. This is the The new legislation required is relatively simple case, even though the Circuit and High Court rules and straightforward. It is not difficult to draft. The ensure that no such order can remain in force for challenge to the government is to give to it the more than eight days without the person barred being priority it deserves so that it is enacted without given an opportunity to be heard in court. undue delay. G Where emergency ex parte protection is required, Circuit or High Court injunctions will now be sought Alan Shatter is a partner and consultant on family law in which can result in immediate protection, without the the Dublin law firm Gallagher Shatter and author of party against whom the injunction is granted being at Shatter’s family law (Butterworths, 1997).

25 Law Society Gazette Jan/Feb 2003 Human rights

Human rights advocacy has turned into a virtual industry in England on the back of the Human Rights Act. But many Irish lawyers doubt that our version of the legislation will have a similar impact here, while others believe the constitution is already performing the same function. Barry O’Halloran reports AN UNCONVENTIO uman rights have managed to make cases taken. ‘A couple of people with a commitment • Human rights English lawyers sexy. Mark Darcy, Colin to human rights law came together with the object of advocacy Firth’s character in the film Bridget taking these cases’, she says. ‘What we look for in booming in UK Jones’ diary, is a human rights lawyer. each situation is the vulnerable client’. • The Human HNot only that, he’s reputedly based on a While they took a proportion of the cases on a pro Rights Bill, real practitioner, barrister Ben Emmerson, who bono basis, public funds paid for those in the criminal 2001 to enact practices in Matrix Chambers in London, arena and civil liberties groups such as Liberty footed the European professional home to, among others, Cherie Blair. the bill for others. The chambers’ members are convention on Emmerson is one of a new generation of lawyers frequently involved in these groups. That balance is human rights who have become media darlings by representing the maintained today, according to Kings. She estimates into Irish law ‘right’ (some would say ‘right on’) side in high-profile that 50% of the chambers’ cases are criminal defence • Key human rights cases in the English courts. Last work, while 50% are general common law. procedural August, as the law term was drawing to a close across differences the water, Emmerson caused two major Putting the dough in Doughty Street with the UK embarrassments for the British government. In the past, Doughty Street lawyers have taken First, he won the right for 900 prisoners to go free appeals against the death penalty handed down in MAIN POINTS after the European Court of Human Rights ruled Caribbean members of the commonwealth to the that prison governors could not add days to sentences Privy Council (work that Kings maintains was as punishment. Then he convinced a panel of English unpaid). They have also taken actions against the judges that the detention of nine terrorist suspects in police. Many non-criminal cases can relate to a range the wake of 11 September was unlawful. With their of issues including social welfare, mental health, usual restraint, the UK media described the victory as patients against hospitals and just about anything that a ‘devastating blow’ for Home Secretary David fits the vulnerable individual against the faceless Blunkett’s anti-terrorism policy. institution mould. Emmerson celebrated these victories and the And thanks to the Human Rights Act 2000, which beginning of the long vacation in a London pub with enacted the European convention on human rights into another high-profile human rights law practitioner, English law, business is now booming. According to a Kier Starmer, who acted for renegade spy David recent assessment by Kier Starmer of the legislation’s Shayler (who doesn’t have much to celebrate at the impact on general litigation in English courts, it was moment). Starmer was made a Queen’s Counsel (QC) ‘substantively considered’ in 431 cases at High Court in March. Many of the barristers practising in this area level or above between October 2000 and April of have taken silk, despite the fact that the majority of this year. them are still in their thirties and considered young In the two decades between July 1975 and July for the honour. Their promotions are an indication of 1996, the European convention on human rights (on how seriously the English legal establishment takes which the act is based) was considered in 316 cases them. at the same level in the English courts. The figures Starmer is a member of Doughty Street for the last two years do not account for the number Chambers, another high-profile practice specialising of times the act has been dealt with in the lower in human rights. Like Matrix, it is home to a raft of courts, where English practitioners do most of their young lawyers whose names regularly pop up in business. British newspapers. Doughty Street was established ‘The Human Rights Act is being relied on at every in 1990 with the specific aim of taking cases with a level in domestic proceedings in the UK’, says human and civil rights focus, says its spokeswoman Starmer’s colleague, Kate Beattie. ‘That’s the most Christine Kings. obvious change it has brought: human rights points The original idea was to get away from the can be raised in almost any case’. conventional chambers model used in England, She adds that most of the work now done in where the clerks, who get a percentage of each Doughty Street revolves around the act. Beattie says practitioner’s earnings, heavily influence the type of that solicitors are taking more and more notice of the

26 Law Society Gazette Jan/Feb 2003 Human rights

NAL APPROACH PIC: JONATHAN EVANS/REX FEATURES EVANS/REX PIC: JONATHAN Eye-spy: M15 whistleblower David Shayler – a rare defeat for the elite of England’s human rights lawyers

act and its implications for their clients. The 2001 on litigation in this country once it is enacted chambers exploits its skills in this area by providing into law. Solicitor Garrett Sheehan, principal of advice and training for other lawyers who do not Garrett Sheehan and Company, points out that the specialise in the area, but who are aware that the act constitution allows ample scope for many kinds of could affect their clients’ fortunes. human rights advocacy. He says some analysts believe ‘We are giving advice on human rights issues to there are stronger protections for rights like the right others, so they can use our experience’, Kings says. to a jury trial in the constitution than there are in the ‘We train solicitors to find the human rights issues in European convention. cases’. Beattie agrees that ‘solicitors are thinking ‘There’s not that much extra. A lot of rights are more and more about it’ (the Human Rights Act). already stated or implied in the constitution’, he says. One experienced human rights lawyer, Edward ‘We may have been slower in terms of defining certain Fitzgerald QC, has compared the explosion in rights, but the protection for certain other rights is human rights advocacy to the French enlightenment. stronger’, he adds. The terms of the Human Rights Bill That’s probably pitching it a bit strong, but people are made subject to the constitution, a fact that has like Christine Kings and Kate Beattie say the events drawn a lot of fire from the legislation’s critics. of the last two years speak for themselves. However, Kate Beattie agrees that in some ways it appears those events are tied specifically to the arrival of the that the Irish constitution is already filling the role Human Rights Act on the English statute book. now assumed by the Human Rights Act in England. In At this stage, no-one is willing to predict for that jurisdiction, judges can declare legislation to be definite the likely impact of the Human Rights Bill, incompatible with the act. Similarly, Irish High and

27 Law Society Gazette Jan/Feb 2003 Human rights

Supreme Court judges can find statutes and statutory its functions in a manner that is compatible with the instruments repugnant to the constitution. state’s obligations, and there is a right to damages However, she says the effect of the declaration is should they fail to do this, unless the law of the state different in that an English court’s declaration of prevented them from acting otherwise. Solicitor incompatibility can have a number of effects: it can be James MacGuill argues that the legislation has been overturned, as it is here, or it can be partly qualified to the point where the convention has no overturned, or the ruling can act as a ‘sub- real meaningful effect in Irish law. amendment’ to the legislation. In this country, the ‘They have emasculated it so much’, he says, and provision falls. adds that the courts are not defined as a public body ‘The thing is that you already have a kind of under the act, which means that they themselves are incompatibility, whereas that’s quite a new thing not subject to the provisions requiring organs of the here’, says Beattie. In fact there is still some confusion state to ensure they behave in a manner compatible in this area, as it appears that the original intention with the act. was that the courts would flag incompatibility rather He points out that there are a number of practical than rule on it. differences with the UK. Under their act, public funds are used to pay for human rights litigation Right from the start? where there is no other source of cash. Here, litigants But the Irish and English legislation were designed to have to rely on their own funds or on the chances of ‘The fact is do two different things. According to the last minister lawyers taking a case pro bono. for justice, equality and law reform, John Also the UK act facilitates litigants by putting that there are O’Donoghue, the Irish Human Rights Bill does not set special, straightforward procedures in place. The clearly cases out to create new rights for this country’s citizens. ‘It Irish bill makes no such concessions. MacGuill says has to be remembered that we in Ireland already have that this is despite the fact that there is a clear need where an extremely effective method of safeguarding to facilitate human rights litigants. He also complains European individual rights through the medium of the written that the remedies are ineffective and incomplete. bill or rights as set out in the 1937 constitution – a ‘The fact is that there are clearly cases where convention factor that has assisted the state in maintaining its European convention rights are stronger than those rights are very good record before the Court of Human Rights in the Irish constitution. That’s why we have had so over that time’, he told a press conference to launch many cases going from here to Strasbourg’, he says. stronger the bill last year. than those in He stressed that the legislation’s purpose was to Parallel universe facilitate actions being taken in this country’s courts On top of this there is the question mark over the the Irish rather than in the European Court of Human Rights role of the District and Circuit Courts. They account constitution. in Strasbourg. The Irish High or Supreme Courts for 95% of all litigation in this country, but they do will be able to declare that a provision of Irish law is not appear to have any role under the Human Rights That’s why we incompatible with the European convention on human Bill. This is another central difference with the have had so rights. English regime, which allows human rights points to Pending a decision by the government of the day be raised in courts with parallel jurisdiction to the many cases on its response to the declaration, it will not affect Irish District and Circuit Courts. going from the provision’s continuing operation or validity. But ‘The bill seems to be very much focused on the where someone has been granted a declaration and High Court’, says Catherine Pearce. ‘But the District here to has suffered loss, injury or damage, he can apply to Court is the place where rights are litigated. That’s Strasbourg’ the government for payment of ex-gratia the interface of society and the law for the most part, compensation in respect of that. and that’s the place where most people look for Catherine Pearce of solicitors Kelleher O’Doherty vindication of their rights’. in Dublin predicts that, based on similar payments One lawyer speculated that the delays in made by the European Court of Human Rights, these publishing and passing the bill have been caused by payments are not likely to be large. She is doubtful the fact that the government wanted to be careful to that the legislation will have a big impact when it is keep litigation of this area of the law firmly in the passed into law as it has been constructed to ensure superior courts. ‘Otherwise, there was a question that that it does not affect the status quo. people could have done things like sued health ‘What they have done is very different from what boards or got injunctions against them in the Circuit happened in England. They have been very careful to Court’, he said. ensure that it complies with the Irish constitutional The bill itself is now being considered by an regime’, she says. ‘The government has tended to be Oireachtas committee, and it could still be some time very defensive about the constitution all along’. before it is finally passed into law. After that, there According to John O’Donoghue, the main provisions will be a further six-month wait before it comes into of the bill are to ensure that Irish courts ‘in force, which leaves plenty of time for speculation interpreting and applying any statutory provision do about its ultimate impact on the law. G so, as far as possible, in a manner compatible with the European convention’. Barry O’Halloran is a staff reporter with Business & It also demands that every organ of state performs Finance magazine.

28 Law Society Gazette Jan/Feb 2003 Land Registry The paper chase

The Land he Land Registry’s Electronic Access The conversion programme began in January 2002 Service (www.landregistry.ie) was launched and is expected to be complete by the end of 2004. It Registry’s drive in July 1999, at the same time as time as will result in the scanning and indexing of to move from a its Integrated Title Registration approximately 6.4 million pages of unique Land Information System (ITRIS). It provides Registry records, which are being made available to paper-based T Land Registry customers with on-line access to the internal staff on a phased basis to assist casework system to a full organisation’s database of land ownership records. processing and on-line to customers through the EAS. Users of the Electronic Access Service (EAS) can: As the electronic images are created, they are loaded electronic • Conduct on-line searches of the electronically nightly onto the system, following a thorough quality service available indices and register assurance examination. At present, approximately •View and print computerised ownership records 10,000 to 12,000 new pages are made available over continues apace, • Discover the applications pending in the Land the Internet each day. writes Michael Registry against a particular registered property • Make on-line applications for official copies of Customer survey Treacy Land Registry records As part of the preparation of the registry’s Statement of strategy and business plan 2002-2005, a comprehensive customer survey was undertaken. The main purpose of the survey was to help identify customers’ priorities in order to address them. Over 160 firms and organisations were canvassed, and 92 completed surveys were received. The responses represented almost 1,000 practising solicitors. At least two firms from each county were included in the survey and they included a mix of small, medium and large firms. Customers ranked the registry’s services in order of priority and the results demonstrate that the development of ITRIS and the EAS is the preferred route for the delivery of services. The majority of the Land Registry’s customers are legal practitioners, professional law-searching firms, financial institutions, local authorities and other public bodies. Since the launch of the EAS, the number of customers has grown steadily and the number of •Track the progress of applications through their accounts now exceeds 4,200. This pattern is also lifecycle, and reflected in the substantial increase in the number of •Prepare and submit applications for transactions conducted on-line. For example, during registration/lodgement forms. January 2002, an average of 672 business transactions were undertaken through the EAS each day. By On the introduction of this new technology, the September, this had grown to over 1,200 business registry successfully transferred all the existing transactions a day and, by the end of the year, over electronic ownership records to the new system. But 600,000 transactions had been conducted the bulk of the ownership records, ‘folios’ and ‘filed electronically. Much of this growth can be attributed plans’ (some of which go back as far as 1892), to the increasing number of records available on-line. continued to be held in paper form, a situation which These figures do not include the many thousands of clearly could not continue in the light of the on-line enquiries made to its system each month for • New document organisation’s strategy to deliver an increasing range information for which no fee is charged. imaging of its services electronically. The Land Registry document-imaging programme system in is all about giving customers access to the information place New document-imaging system they need in a timely and convenient manner. As the • Folios and filed With financial assistance from the government’s size of its electronic database increases, the plans being Information Society Fund, the Land Registry organisation expects to see the current upward usage scanned undertook a major project to implement document- levels for its on-line services to continue into the • Project to imaging technology, accompanied by a programme to foreseeable future. G finish by end of systematically convert all its paper folios and filed plan next year maps into electronic records and to make these Michael Treacy is the Land Registry’s corporate services

MAIN POINTS available on-line to customers through the EAS. manager.

29 Law Society Gazette Jan/Feb 2003 Conveyancing COMPLETION NOTICES: a word of Every practitioner knows what a completion notice is and what it is intended to do. But a recent High Court decision could have far-reaching implications for vendors who are not ‘ready, willing and able to complete’, as Patrick Mullins explains

he question of completion notices was breach of contract. Furthermore, they indicated that, • Background to considered by Mr Justice Smyth in as a result of this breach, their client was entitled to an Tyndarius v Tyndarius Limited v Nicholls Limited and immediate return of the deposit, together with Nicholls Others (judgment of 11 January 2002). In interest and costs. • High Court these proceedings, the plaintiff entered At trial, the purchaser contended that its last letter judgment T into a written contract to purchase a property in reaffirmed a decision on its part to regard the failure explained Dublin under the terms of a written tender to provide proper title and the service of the • Implications document incorporating the Law Society’s General completion notice as a repudiation by the vendor, and for both conditions of sale (1995 edition). The intermediate that this letter was an effective notice of rescission. vendors and title to the property was not furnished in accordance Some days later, the vendor’s solicitors replied, purchasers with general condition 7. In response to the indicating that deeds had been located which were

MAIN POINTS objections and requisitions on title, the reply to the previously missing and enclosing copies of these deeds. requisition in relation to the capacity of the vendor to sell the property was stated to be ‘to follow’. A Unreasonable objections deed in relation to the intermediate title was missing The vendor contended at trial that it was at all times at the time and this was subsequently disclosed to ready, willing and able to furnish title in accordance the purchaser’s solicitors. with the terms of its contract and that the objections The solicitors for the purchasers wrote to the or requisitions raised by the purchaser were solicitors for the vendors, indicating that the unreasonable and were in fact properly met. It further purchaser was considering putting an end to the argued that the completion notice was a valid notice contract entirely on the basis of the failure to address in that it stated that the vendor was ready, willing and the difficulties over the title. The vendor replied by able to complete the sale in accordance with its serving a completion notice, making time of the obligations. essence in the contract. The purchaser contended that the completion notice was invalid and that it had by letter validly and Ready, willing and able properly rescinded the contract and that the contract The purchaser’s solicitors replied, rejecting the was at an end. Accordingly, it was entitled to have its purported completion notice and reserving a right on deposit returned, together with the costs of behalf to the purchaser to rescind the contract. investigating title and the costs of these proceedings. Further correspondence ensued and ultimately the vendor’s solicitors wrote to the purchaser’s solicitors High Court’s decision indicating that, as far as they were concerned, they Mr Justice Smyth indicated that he was satisfied as a had adduced title in accordance with the contract and matter of law that the giver of a notice to complete a were ready, willing and able to complete. The vendors sale under which terms time is made of the essence is went on to furnish details of the interest charged per as equally bound by it as a recipient of the notice. He week and indicated their intention to deal with the held that the party giving the notice must be ready property after the expiration of the time set out in the and willing at the time to fulfil its own outstanding completion notice. Some further correspondence contractual obligations. In this particular case, he ensued, and the purchaser’s solicitors eventually wrote found as a matter of fact that there were too many indicating that they had received a senior counsel’s inconsistencies and frailties in the documentation opinion in the matter and that the vendor was in proffered by the vendor to oblige a purchaser to

30 Law Society Gazette Jan/Feb 2003 Conveyancing warning

accept the title in the piecemeal fashion it was being a matter of fact and as a matter of law that, as of the advanced. date of service of the completion notice, the vendor He further held that a term under which time was not ready, willing and able to comply with its becomes of the essence binds both parties and that, obligations under the contract. In his view, the upon expiration of the completion notice, the purchaser had unequivocally and promptly exercised purchaser was entitled to terminate the contract, both its right of election to rescind. He therefore held because of the failure by the vendor to make good that the plaintiff – the purchaser – was entitled to title and the vendor’s inability to complete the recover the amount of the deposit, together with contract in accordance with the completion notice. interest on it. He found that there was no waiver by the purchaser This case is particularly important because it of its entitlement to treat the inability of the vendors highlights the implications that a completion notice to close the sale as a repudiation of the contract. He has not only for the purchaser but also for the vendor. further held that protest about the validity of the It is clear that in some circumstances the vendor can completion notice did not amount to such a waiver. put himself at risk by serving a completion notice He was satisfied that the right to rescind the contract because, if at the end of that period he is not in a on the grounds of repudiation had been exercised position to complete, the purchaser has a right to promptly in this case. rescind the contract. It is therefore advisable that, when acting for a vendor, practitioners should Right to rescind consider the effects and possible ramifications of Importantly, he indicated that as long as the vendor serving a completion notice. G maintained a position that gives the right of election to the purchaser, then the vendor preserves and keeps Patrick Mullins is a partner in the Cork law firm Dillon open the purchaser’s right in that regard. He found as Mullins & Company.

31 Law Society Gazette Jan/Feb 2003

Books Book reviews Social inclusion and the Irish legal system: public interest law in Ireland Gerry Whyte. Institute of Public Administration (2002), 57-61 Landsdowne Road, Dublin 4. ISBN: 1-902448-66-9. Price €45.

erry Whyte has created an system to look after the needs ‘With the exception of the justice will depend on the case Gindispensable guide for any of its least-able citizens. provisions dealing with and on the solicitor. solicitor with an interest in Once the legitimacy of education, the personal rights Readers of this excellent using the Irish legal system to judicial activism has been identified in the constitution all book will be as struck by fight social exclusion by taking established, the author lie in the civil and political, Whyte’s huge commitment to on the state on behalf of examines how civil procedures rather than the economic, social inclusion as they are marginalised or neglected and remedies in the courts sphere’. Mandatory injunctions disappointed by the reality of clients. The phrase ‘public could develop to accept public vindicating constitutional the current political and legal interest law’, as used by Whyte, interest litigation, before going rights will only be granted climate in Ireland. In a sense, means trying to use the law and on to analyse the success of against the executive in the Whyte spends much of this legal services on behalf of the public interest law (limited to narrowest of circumstances, book debating ways and means disadvantaged and often date) in the Irish courts. The and in reviewing executive of how ‘David could beat involves marginalised groups in final part of this book is action courts are essentially Goliath’, before finally society using the legal system concerned with access to legal restricted to the remedies of deciding that if the fight were to gain financial support from services for the disadvantaged prohibitory injunctions, to take place according to the state, usually based on and provides a fascinating damages and declarations, current Supreme Court rules, perceived constitutional rights. history and critical analysis of according to the Supreme then Goliath would win. It is Social welfare claimants, the system of civil legal aid in Court in the TD case. This up to the lawyers and children from dysfunctional Ireland, and the contribution severely limits the judiciary’s politicians of today and families and children with of FLAC to the creation and ability to order the state to tomorrow to ensure that the mental handicaps, travellers and development of this system. spend on services to particular rules of this country’s legal, litigants seeking legal aid are Lawyers are faced with a groups. social and political four such groups. formidable task in All is not lost, however, as environment are developed and The obvious difficulty with implementing Whyte’s these limited remedies still litigated to accommodate the using the legal system to strategies for social inclusion, have the power to provoke, if marginalised as full citizens, compel the government to based on the attitude of the not to compel, political action and to increase access to justice spend money on specific areas current Supreme Court to – and, at the very least, they for all. By recognising the of education or social welfare is social and economic rights as will highlight the problem. urgent need for change and that the judiciary could thus be expressed in the recent cases of Whyte sees litigation as suggesting changes to and by contravening the doctrine of Sinnott v Minister for Education complementary to political the legal system, Whyte has separation of powers. Whyte and TD v Minister for action, but not replacing it, so stood up to the legal orthodoxy argues that a commitment to Education. The latter case is the legal system can only on social and economic rights social inclusion can be inferred particularly damaging to provide part of the solution. and is a true advocate of both from the text of the Whyte’s thesis, as many of the Lawyers must be aware that social inclusion and the socially constitution, and that the justices made it clear that they additional political pressure on excluded. G judiciary are the most do not recognise implied socio- government departments may appropriate agency to police economic rights in the be required. Whether solicitors Keith Walsh is a solicitor in the this constitutional norm, based constitution. wish to move outside the legal Dublin law firm Fawsitt on the failure of the political Murphy J put it like this: system in pursuit of social Whitefriars.

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33 Law Society Gazette Jan/Feb 2003 Books Office of Director of Equality Investigations 2001: legal review and case summaries Madeline Reid. Free of charge from the ODEI, The Equality Tribunal, 3 Harcourt Street, Dublin 2.

he Employment Equality Act, published as part of its ‘overall this was a discriminatory policy and indirect discrimination are T1998 came into force on 18 policy of transparency and against parents of children explored, namely: the October 1999, amplifying Irish accessibility’. The criterion for under 18 years, since there was distinction between the two equality legislation in the inclusion in the review is said to no risk of the son’s presence concepts; the definition of employment sphere. Until then, be ‘whether the issue is likely to giving rise to any risk of, say, indirect discrimination; the EU the legislation merely covered be relevant, and of interest, to disorder (prohibited by the concept of ‘disproportionate discrimination based on sex or parties involved in cases before Intoxicating Liquor Act, 1988). impact’ relating to gender marital status. The most notable the ODEI’. In this respect, it On the other hand, the equality equality; issues relating to innovation of the 1998 act was will provide practitioners with officer held that publicans could family responsibilities; and the introduction of seven new useful pointers to the ODEI’s be entitled to refuse service to a ‘justification’. It then considers categories of protected groups, approach and thinking when parent accompanied by a minor the necessity of comparators; based on family status, age, investigating complaints within in a number of situations, for the fact that intention to disability, religion, its remit, as well as being an example, if the child was seen to discriminate is not a necessary race/nationality, sexual authoritative guide to many of consume alcohol. condition to liability; the orientation and membership of the key principles embodied in Under the ground of concepts of discrimination by the travelling community. this important area. ‘gender’, it was held in the association and by imputation The transformation was taken The introduction provides a McKenna case that when an under the Equal Status Act; the a step further in October 2000 brief explanation of the employee was absent from work burden of proof in both with the introduction of the jurisdiction of the ODEI; a due to a pregnancy-related employment equality and equal Equal Status Act, 2000. This useful reminder that it is not illness, the reduction of her status cases; and the fact that represented a giant leap forward only responsible for dealing salary to half-pay for the latter discrimination can be inferred in Irish equality, as it extended with complaints under the 1998 part of her pregnancy and the from the facts of a case. the principles of equality and 2000 acts, but that it also deduction of her absences from The penultimate issue embodied in the 1998 act has residual jurisdiction to deal sick leave entitlements considered is harassment. beyond the employment sphere with some outstanding claims of amounted to direct There were no substantive to include access to, and discrimination under the Anti- discrimination on the gender decisions on this topic under provision of, goods and services. Discrimination (Pay) Act, 1974 ground under Community law either the 1998 or 2000 acts. It is not surprising that these and the Employment Equality Act, in breach of article 141 of the The issue was, however, significant legislative innovations 1977. EC treaty as well as the equal considered in cases brought have resulted in burgeoning In chapter 2, The grounds of pay and equal treatment under the Employment Equality jurisprudence from the Office of discrimination, Ms Reid makes directives. The equality officer Act, 1977. When discussing the the Director of Equality the point that before 2001, stated that she was bound to issue of harassment under this Investigations (ODEI), the gender accounted for the apply the 1998 act that act, reference is made to the Labour Court, the Circuit Court majority of new claims, but that implemented the EU law. This case of Two female claimants and and, in time no doubt, the High during 2001 a significant decision is on appeal to the the Equality Authority v A boys’ Court. Neither is it surprising, number of decisions arose in Labour Court. However, in secondary school. The equality therefore, that individuals are relation to the ‘new’ grounds. Rattigan v Boots, the equality officer in this case held that two somewhat confused in respect of She then provides a brief officer found that neither teachers had been sexually their rights and obligations overview of the claims brought Community nor national law harassed by secondary school under this new equality in that year. She outlines how created an entitlement to pupils, but also found that there legislation and would welcome many claims were taken and special protection for a female was no general practice of guidance on the main facets of highlights the main cases under employee in respect of gender discrimination and that the legislation and the case law each ground. gynaecological illness generally. the school had taken all that has emanated from it to Under the ‘family status’ The third chapter is General reasonably practicable steps to date. The ODEI’s annual report ground, for example, she equality issues and deals with address the complaint. The Office of Director of Equality highlights the controversial case these issues under several equality officer did hold that Investigations 2001: legal review of Maughan. A complainant was headings, with reference to the teachers had been penalised and case summaries to a refused service in a pub in the 2001 cases. The nature of by the school for bringing the considerable extent provides afternoon because he was discrimination is defined by complaint, and awarded them such guidance on the key issues accompanied by his 13-year-old reference to EU law, and the compensation for the which came to the fore during son. The policy of the pub was relevance of EU law to the case victimisation. The report notes, the first full year following the not to admit anyone under 18 law of the ODEI is also however, that this introduction of the 2000 act. to its premises, therefore it highlighted by an exposition of recommendation was The legal review of the ODEI would not serve parents the cases in which it was overturned on appeal to the case law is written by Madeleine accompanied by children. The considered and applied. Labour Court, which imposed Reid, its legal adviser. It is equality officer concluded that Concepts pertinent to direct liability on the school. It held

34 Law Society Gazette Jan/Feb 2003 Books that there was sufficient serve the complainant. considered the argument that The report states that access evidence of a general practice of Two defences provided by the pay differential reflected the to job-sharing or part-time discrimination and also that the the 2000 act are also later hour shift worked by the working was considered in three steps taken by the school were considered. Under section comparator and found a lack of decisions, in which the equality not sufficient. ‘Victimisation’ 15(1), a person may refuse to transparency in the calculation officers reviewed a range of arises when a person is penalised provide goods or services to a of an anti-social hours element. Irish and EU law and concluded or adversely treated for having customer on non-discriminatory She stated: ‘In circumstances that no legal right is provided sought redress against grounds if to do so would where the employer applies a under either for a full-time discrimination, and it is stated involve substantial risk of non-transparent pay practice employee to transfer to job- that the equality officers take a criminal or disorderly conduct which can have the potential to sharing or part-time work. serious view. This is or behaviour or damage to undermine the effectiveness of They also noted the provisions subsequently discussed in the property at, or in the vicinity of, equal pay legislation, I consider of section 13 of the 1977 act, to text. the place in which the goods or that an order for equal pay is the effect that an employer is Chapter 4 deals with issues services are sought. The report the appropriate remedy’. not obliged to employ a person specific to the Equal Status Act, states that to successfully invoke Several other cases raised who will not accept the 2000. The concept of ‘services’ this defence, there must be a issues of discrimination in conditions under which the under the act is discussed with reasonable belief on the part of interviews and recruitment. duties attached to that position reference to the case of Donovan the respondent that the Discriminatory questions or are performed. However, in all v Garda Donnellan. Four horses individual refused was likely to comments, for example, arose in three cases, it was emphasised strayed onto the road, but only cause trouble. It is not sufficient three cases. The case of Sheils that an employer was obliged to the owner of one of them – a to show that the person refused O’Donnell raised the question of decide on an application for traveller – was prosecuted. He was a traveller and that other whether it may be flexible working conditions in a argued that the prosecution was travellers had previously caused discriminatory for an employer non-discriminatory manner. discriminatory. It was held that trouble. Several cases are to ask detailed questions about a Two cases which involved services provided by the state, analysed in relation to this prospective employee’s class actions were also examined including certain policing defence. willingness to work atypical in the context of what functions, are covered by the The second defence, under hours, considering family constitutes a class action, and to 2000 act, but that the section 15(2), is refusal on the commitments, if the same what extent one may be investigation and prosecution of basis that the action was taken questions are put to both male brought. crime are not available to the in good faith to comply with and female candidates. The Chapter 6 examines public within the meaning of the licensing acts. In the case of equality officer considered it procedural issues. Of particular ‘service’ as defined under the Moorehouse v Ayleswood, it was arguable that such questions note is the decision under the act. stated that this defence imposed may tend to disadvantage 1998 act, A complainant v A The report then gives a less severe test for the female candidates company, that the correct date of examples of the kind of activities respondent than the section disproportionately. the start of the six-month found to constitute 15(1) defence, since it did not She tested first for objective limitation period is the date of discrimination under the 2000 require a ‘substantial degree of justification with reference to the last alleged incident of act. Many of the cases taken risk’. Several cases are High Court and European discrimination, and not the day concern the travelling considered where this defence jurisprudence, and concluded after. This was also held in two community, and it is noted that was invoked. that in this case the questions cases that the 1998 and 2000 a large number of cases related Chapter 5 concerns issues were objectively justified. The acts respectively did not have to refusals to serve members of specific to the Employment job (home school community retrospective effect. the travelling community in Equality Acts, including equal liaison officer) required With regard to parallel pubs, hotels and restaurants. remuneration and the definition flexibility to work outside claims, in O’Hanlon v EBS it Many respondents in such cases of remuneration under the act. normal working hours. The was held that a complaint of had argued that they had no One case mentioned is that of questions were unrelated to the discriminatory treatment could policy of discriminating against Eng, in which it was held that a candidate’s gender and met the be referred to the ODEI where travellers, and the report Malaysian doctor occupying an tests prescribed by the ECJ – a complaint of constructive discusses the effect of evidence unpaid ‘supernumerary’ that the condition met a dismissal had been made to the tendered in respect of this. It internship who performed ‘like genuine need, was suitable to Labour Court on the same states that in several cases the work’ to Irish and EU doctors attain its objectives, and was facts. absence of any evidence that a who were paid a basic salary was necessary to achieve them. The issue of ‘extension of respondent operated a an employee and was being The case of O’Hanlon v EBS normal time limits’ is also discriminatory policy against discriminated against because of is also worthy of note. It was discussed. It is interesting to travellers, and evidence that his nationality. In many other pointed out that it was note that of the seven other travellers were served cases, however, the equality undesirable practice for applications made to the normally, had been considered officers had found that the interview panel members to director in 2001 for extension to weigh against the claimant was not performing destroy their notes, since such a of time to refer cases, none complainant, where the ‘like work’ to the comparators. practice could well form part of were\ successful. Three of the respondent produced evidence In the Kennedy case, the an evidential chain on which a applications were under the of non-discriminatory factors equality officer awarded equal claim for discrimination could 1998 act. In deciding one of grounding their decision not to pay to a female employee. She be made out. these applications, the director

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For a FREE TRIAL or demonstration, please visit www.westlaw.ie or telephone: 1800 509 034 Books held that the fact that the that the procedure is completed equal status appeals were heard bringing or defending an incident was still the subject of on time, or to satisfy the double by the Circuit Court at the time equality claim under either the an internal investigation did not test that exceptional of writing the report, although 1998 act or the 2000 act. constitute the ‘exceptional circumstances existed, and that some had been notified to the However, its use is not confined circumstances’ required by the these prevented such ODEI. Nor had the Labour to this group. The logical 1998 act in order to grant an completion’ (DIR-S2001-004). Court decided any appeals from structure of the book, and its extension. The director said that Chapter 7 is entitled an ODEI decision under the clear and concise language, it is was not unusual for internal Outcomes and gives some Employment Equality Act, 1998, makes it a comprehensive and investigations to exceed six statistics about the 2001 although several such appeals practical guide for lay persons, months and that the complaint decisions. It then gives a were pending. The lists of cases notably employers, retailers, could have been referred to the breakdown of the remedies and appealed under the 1998 and customers and employees, who ODEI with a request that it be compensation awarded in both 2000 acts are, therefore, merely are considering their rights and put on hold until the internal employment and equal status lists of cases pending. There is, obligations under both pieces of investigation had been cases, with further breakdowns however, a list of employment equality legislation, and also the completed. between the three main equality appeals decided during possible implications of There were four applications categories of remedies: equal 2001, and the results. contravention of these rights for an extension under the Equal pay, compensation and orders The appendices include a list and duties. Status Act, 2000, and none was for a specific course of action. of the rulings of 2001 and The 2002 Legal review, in successful. In one case, the Chapter 8 concerns appeals, summaries of all 2001 similar format, will be director looked at the phrase and deals with rulings given in employment equality and equal published in spring 2003. G ‘exceptional circumstances 2001, which the ODEI knows status decisions, in numerical prevented’ which is used in both to have been appealed, and also order. Paul Glenfield is a partner in the the 1998 and 2000 acts. She with decisions of the Labour The booklet provides a Dublin law firm Matheson concluded that it ‘puts Court during the same year in comprehensive and informative Ormsby Prentice and is a member significant onus on the respect of ODEI rulings in first port of call for of the Law Society’s Employment prospective claimant to ensure 2001 or previous years. No practitioners when faced with and Equality Law Committee. Going to court: a consumer’s guide Damien McHugh BL. FirstLaw Limited (2002), Merchant’s Court, Merchant’s Quay, Dublin 8. Price: €12.

his is an exceptionally good asset. Indeed the old maxim of reasons with sufficient includes appendices with Tbook of its kind and would “Ignorance of the law is no excuse” knowledge of how the system and explanations of the more make a perfect ‘hand-out’ to is a cogent reason for one to acquire the legal process works to try and common legal words and the lay person being exposed to that knowledge. The law prescribes give them confidence in facing phrases, and the addresses of all the civil law for the first time. our moral code, it regulates our what can be, for many, the most the Legal Aid Centres and the Mr McHugh is, of course, an behaviour in relation to our traumatic experience of their lives’. court registrars. old hand at lucidly neighbours, and it safeguards our The book addresses a Going to court could be very communicating with the public, rights as citizens. The reality is number of basic topics in short usefully placed in a solicitor’s having for many years been a that law, on which the whole separate chapters, including: waiting room, perhaps with a High Court reporter in the structure of our society is formed, choosing a solicitor; the supply available so that a copy Four Courts before he himself impinges on nearly every one of our structure of the courts; the cost can be given to any client who crossed the legal threshold, daily actions ... of going to court; barristers; expresses an interest in what with which he had become so ‘This book is not concerned with what might happen in a case might lie ahead when embarking familiar, by becoming a the ingredients of any particular (particularly a personal injury on litigation. How much easier barrister. He then did not law but rather with equipping the case); stress and other pressures; it is for the legal practitioner forget his old newspaper lay person faced with having to go family law courts; and alternate when the client has some idea of colleagues with his Libel law to court for any one of a multitude dispute resolution. It also what the law in action is all handbook for journalists, about. followed by his editorship of Apart from the lay client, this the Irish courts guide 2001/2. GOING TO COURT: A CONSUMER’S GUIDE is a basic first book that should Mr McHugh clearly explains Ideal for the waiting room of solicitors’ offices. be read by every trainee solicitor every technical word he is Price: €12.00 at the outset of his or her required to use in Going to court, Special bulk order rates available: professional training as a simple the gift of the good •5 copies: €48 (€6 per copy) means of bridging that real gap communicator. In his •6 to 12 copies: €9 per copy between theory and practice. introduction, he encapsulates • 13 to 25 copies: €8 per copy Well done, Damien. G simply what he is out to • 26 + on application achieve: Postage and packing inclusive. Michael V O’Mahony is a partner ‘Knowledge of the law and the Contact: FirstLaw, Merchant’s Court, Merchant’s Quay, Dublin 8 in the Dublin law firm McCann courts’ system is a very valuable FitzGerald.

37 Law Society Gazette Jan/Feb 2003 Stockwatch Markets in review Being active and ready to participate will be key to success in 2003, writes David Killen

ast year was the year the are only two other periods in Instead of actually recovering Lunthinkable happened – the the Dow Jones Industrial in the second half of 2002 (as dreaded three in a row. For the Average history with three forecast by many first time since World War 2, back-to-back annual declines: commentators), the earnings all of the major benchmarks 1901-1903 and 1939-1941. And outlook has actually become recorded negative returns for the only instance of four more downbeat. According to the third consecutive year, consecutive down years was the First Call, year-on-year prompting the Fed and the period 1929-1932, during the earnings growth expectations European Central Bank to cut Great Depression. While four for the S&P 500 in 2003 is rates by a further 0.5% to years in a row is an 11%. Since 1 October, the David Killen: Investors should 1.25% and 2.75% respectively. extraordinary occurrence, the estimates have been cut from continue to hold higher than Although the final quarter did precedent has none the less 17% to 12% for Q1 2003 and average allocations in cash manage to give some respite been set. It should also be from 16% to 12% for Q2 with an impressive eight-week noted that the market, since 2003. The 2002 fourth quarter rally, like all others before it, 2000, has challenged all the earnings season in mid to late no longer as useful a strategy as this petered out. norms and expectations. January will give investors a it once was. During the bubble Despite mixed economic Throughout history there have good indication of the health of period, diversification meant signals, there is mounting been periods where markets corporate America. However, you got more of the good. concern that what little revival have not actually made any with the pre-announcements However, the converse is true there might have been in US material return over long ‘confession season’ currently during bear markets. Investors growth this year has failed to periods. For example, the Dow underway, there is little doubt need to concentrate on focused create sufficient new jobs. Jones was at the same level in that many earlier forecasts are investments and alternative Recent figures show a rise in 1982 as it was in 1965. not achievable. asset classes to overcome this US unemployment to 6% from However, within this hurdle. a low of 3.9% in April 2000, timeframe, there were no less Things to remember in 2003 which is casting a shadow over than 11 significant rallies, one There are a couple of points Exercise caution equity markets. Following a of which delivered a 63% gain that equity investors should We believe the earnings period of inactivity, both the between December 1974 and certainly bear in mind in 2003. recovery is still some way off ECB and the Fed were June 1975. Clearly, if this is to First, we are in an era of low and, as such, recommend that prompted to cut rates by a be the case for the next couple numbers. That means low investors continue to hold half-percent during quarter of years, the ‘buy to hold’ GDP growth rates, low higher than average allocations four of 2002. With rates in the mantra is no longer valid, inflation and interest rates. The in cash. Our focus for the US now at just 1.25% after 12 suggesting investors should be corollary of these influences is coming year will continue to be successive rate cuts in just two prepared to aggressively play potentially lower investment on domestic and UK years, the effectiveness of the rallies and take profits returns. Investors need to be companies with strong track further cuts to stimulate when perceived normality cognisant of the fact that records in raising earnings and growth is questionable, returns. returns of 10-15% should be delivering sustainable dividend especially since deflation is fast taken where possible. Second, growth. We would advise becoming a real threat. Still no recovery in earnings we believe that the US dollar is investors to look at defensive For a year in which earnings set to establish new lows stocks like food and energy and Bear market almanac were supposed to improve against the euro. This view is the Irish financials, which have With 2002 being the third substantially, aggregate founded on the belief that the been very resilient. Our down-year in a row, investors earnings estimates in all the dollar needs to fall further in underlying message remains may find it worthwhile major markets were actually order to correct the imbalances unchanged: investors need to revisiting past periods of revised downwards in 2002. At that currently exist within the continue to hold cash and negative market performance. the start of the year, the US economy, most evident in exercise patience and caution in Undoubtedly, preservation of earnings estimate (expressed as the unsustainable balance of this challenging environment. capital is the single most index points) for the S&P 500 trade deficit. With further Being active and ready to important component of was 53.5. This now stands at weakening of the dollar likely, participate will be key to investment management 48.6, a 9% reduction. The investors would need very success in 2003. G during bear markets. However, FTSE 100 earnings estimate compelling reasons to invest in there have been opportunities has also fallen by 9%, while the dollar denominated assets. David Killen works in the private to make significant returns DJ Eurostoxx 50’s estimates Third, it is our opinion that client research unit of Davy even during these times. There have been reduced by 29%. diversification within equities is Stockbrokers.

38 Law Society Gazette Jan/Feb 2003 Briefing Report of Law Society Council meeting held on 8 November 2002

New Council members director general, it was proving complete 20 hours’ continuing and encouraged the delivery of a The Council welcomed its nearly impossible to have any- professional development over meaningful and comprehensive newly-elected members Peter thing positive about the profes- a two-year period. The views of report. Allen, Andrew Cody, Michael sion published. the profession had been can- The director general noted Quinlan and Marie Quirke, She noted that she had vassed widely and the reaction that, while it had not been invit- together with the new nominees decided to establish a Public of bar associations was virtually ed to participate in the Interim from the Dublin Solicitors’ Bar Relations and Image of the 100% positive. The Council Board of the PIAB, the society Association, David Bergin and Profession Committee to look approved the Solicitors (Contin- had signalled its desire to engage Helene Coffey, and from the at fresh ways in which the soci- uing Professional Development) with the board and had written Southern Law Association, ety might develop its public Regulations 2002. to the tánaiste in these terms. James O’Sullivan, and wished relations strategy and improve them well for their term of the image of the profession. She Motor Insurance Advisory Motions passed by the office. paid tribute to the stamina, Board (MIAB) and Personal annual general meeting hard work and generosity of Injuries Assessment Board As required by the bye-laws, the Taking of office of president spirit of Elma Lynch during her (PIAB) Council approved the following and vice-presidents year of office and compliment- The president reported on the motions which had been passed The outgoing president, Elma ed her for the style and grace press conference to launch the by the annual general meeting Lynch, recorded her sincere with which she had presided MIAB action plan, held on 25 on the previous day: thanks to the Council members over the 150th anniversary cele- October. It was clear that there • ‘That, pursuant to bye-law and committee members for brations. was already disagreement 9(3)(b) of the society’s bye-laws, their advice and support during The senior vice-president, between the tánaiste and the this general meeting approves her term of office. She paid par- Gerard Griffin, and the junior motor insurance industry as to expenditure by the society on ticular tribute to the director vice-president, John Fish, then the likely impact on the level of restoration of the north and general and the staff of the soci- took office and pledged to serve premiums resulting from south quadrant walls of the soci- ety for their total dedication and the Council and the profession implementation of the plan. ety’s premises at Blackhall Place, commitment. She wished the with diligence and commitment While the tánaiste was insisting which expenditure will exceed incoming president, Geraldine during the coming year. on a 30% reduction in premi- €635,000 (IR£500,000)’. Clarke, every success for her ums, the motor insurance • ‘That the society’s bye-laws be year of office. Motion: Continuing profes- industry took a different view. amended by the substitution for Ms Clarke was then formally sional development The president noted that the bye-law 6(10)(a) and bye-law appointed as president of the ‘That this Council approves the society had launched its own 6(12)(a) of the amended clauses Law Society. She thanked the Solicitors (Continuing Profes- proposals for reform of the per- set out in the attached schedule’. Council for the tremendous sional Development) Regula- sonal injuries litigation system (The amendments related to honour of electing her as presi- tions 2002’. on 18 October and she compli- the delivery of election nom- dent. She said that she was con- Proposed: Donald Binchy mented the task force on its hard ination forms by fax.) scious that the profession had Seconded: Stuart Gilhooly work in producing such a con- • ‘That the society should urgent- been subjected to a severe and sidered report. On behalf of the ly review and upgrade the sports unjustified battering in the pub- Donald Binchy outlined the task force, Stuart Gilhooly con- amenities in Blackhall Place, lic arena in recent years. It contents of the regulations to gratulated Ward McEllin, who particularly the changing facili- seemed that, despite the best the Council and noted that had been an excellent chairman ties which are in a state of seri- efforts of the society and its solicitors would be required to and who had listened to all views ous neglect and disrepair’. G

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39 Law Society Gazette Jan/Feb 2003 Briefing Report of Law Society Council meeting held on 6 December 2002

Decision of High Court New lay member on the est level within a company but tánaiste and noted that, in taxing master Registrar’s Committee had not been acted upon. Under response to the society’s The Council considered the The Council approved the the Sarbanes-Oxley Act, these request for representation on decision of the High Court appointment of John rules would apply worldwide and the Implementation Board of Taxing Master, James Flynn, in McDonnell of ICTU, replacing would necessitate a breach of the PIAB, the tánaiste had Mary Johnston v the Church of Lenore Mrkwicka, as a lay solicitor/client confidentiality. indicated that she ‘did not feel Scientology and concluded that member on the Registrar’s The Securities and Exchange it would be appropriate to the taxing master had dealt with Committee. Commission in the US had have nominees from the repre- the ‘no foal, no fee’ issue as a sought observations on the pro- sentative organisations or matter of evidence on the day The Sarbanes-Oxley Act posal and the CCBE had indeed persons currently prac- and that the media reports John Fish briefed the Council received an invitation to meet tising in the area of personal of the implications of the on the US Sarbanes-Oxley Act with the commission. The injuries’. judgment for solicitors’ fees and its possible effect on Council agreed that the matter had overstated its effect. European lawyers providing should be monitored closely by Criminal Justice (Public Nevertheless, concerns were legal services to US clients. He the Business Law Committee. Order) Bill, 2002 expressed about the various rul- noted that, unusually, legislation The Council approved a draft ings issued by the taxing masters being proposed outside Ireland Approval of practising submission to government by in their consideration of the and the EU could have an certificate form and fee for the Criminal Law Committee statutory obligations contained impact on Irish legal practice, 2003 on the Criminal Justice (Public in section 68 of the Solicitors particularly in the commercial The Council approved the prac- Order) Bill, 2002. (Amendment) Act, 1994, and it field. He said that, following the tising certificate fee for 2003 of was agreed that the Litigation Enron collapse, US companies €1,867, with a fee of €1,545 for CCBE Committee should obtain and were subject to a higher level of solicitors in practice less than The president paid tribute to review copies of all of the rul- reporting than had applied three years, noting that this repre- John Fish and said that it was a ings to date. before. Their professional advi- sented an overall increase of 5.5% great honour for the Council sors were also under an obliga- on the full fee and was broadly in to have had the president of Council members represent- tion to report ‘up the ladder’ to line with inflation projections. the CCBE as one of its mem- ing the Law Society of the highest level if they became The Council also approved the bers for the past year. He was Northern Ireland aware of any wrongdoing. This practising certificate declaration the first Irish solicitor to have The Council approved the was not any different from the form for 2003, noting in particu- served in this capacity and it appointment of Catherine EU position. lar the data protection statement was a matter of great pride to Dixon, Joe Donnelly, Alan However, what was different contained therein. the Council to have one of Hewitt, John Neill and John was the requirement on profes- their members chairing a ple- Pinkerton as the nominees of sional advisors to make a ‘noisy Personal Injuries Assessment nary session of the CCBE that the Law Society of Northern withdrawal’ in circumstances Board afternoon with the minister for Ireland to the Council for where a matter of wrongdoing The director general referred justice, equality and law 2002/2003. had been reported to the high- the Council to a letter from the reform as a guest speaker. G

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40 Law Society Gazette Jan/Feb 2003 Briefing Committee reports

BUSINESS LAW applicable professional rules mergers is a criminal offence for (short form). The authority’s for lawyers which the act prescribes substan- Notice in respect of certain terms Sarbanes-Oxley Act and the 3) Most European lawyers are tial fines of up to €250,000 on used in section 18(1) of the Securities and Exchange already under some form of conviction on indictment (in Competition Act, 2002 gives Commission of the United duty to report up-the-ladder addition to daily default fines of guidance on the authority’s States: the implications for on discovering wrong-doing up to €25,000). A notifiable understanding of certain terms Irish lawyers in a corporate client. merger which purports to be put used in connection with merger In the summer of 2002, the US However, European lawyers into effect before clearance is notifications. These documents legislature passed the Sarbanes- may have differently defined void. may be accessed via the authori- Oxley Act. In November 2002, triggers which require them to Notification of a merger or ty’s website (www.tca.ie). the Securities and Exchange make such reports and it is dis- acquisition to the authority is Commission (SEC) of the proportionate to require required where, in the most Regulation modernising EC United States in its implementa- European lawyers working recent financial year: competition law adopted tion of the Sarbanes-Oxley Act outside the US to have a • The worldwide turnover of In December 2002, the Council issued a proposed rule entitled detailed knowledge of specific each of at least two of the of Ministers adopted a new pro- Implementation of standards of pro- US reporting triggers undertakings involved is not cedural regulation1 to replace the fessional conduct for attorneys. This 4) The CCBE opposes in princi- less than €40 million, and 40-year old regulation 17 of rule purports to apply to foreign ple any breach of European • At least two of the undertak- 1962. When the new regulation lawyers (which will, of course, lawyers’ legal professional ings involved carry on business comes into force in May 2004, it include Irish lawyers), and will privilege/professional secrecy in any part of the island of will radically change the manner require them to report up-the- on the grounds that the duty Ireland (including Northern in which EC competition law is ladder of corporate clients where to secrecy is a cornerstone of Ireland), and enforced. they reasonably believe that the administration of justice in • The turnover in the Republic The key element of the new there has been a material viola- a free democratic society. of Ireland of any one of the regulation is the abolition of the tion of US securities law by the undertakings involved is not existing notification and exemp- company. In addition, if there is In his capacity as president of the less than €40 million. tion system. Instead of this, no appropriate response to that CCBE, John Fish attended a undertakings will be entitled to reporting, the lawyer will be hearing organised by the SEC in Mergers falling below the thresh- argue that the exemption in arti- required to make what is referred Washington before Christmas. olds may be notified on a volun- cle 81(3) is directly applicable to to as ‘a noisy withdrawal’ of their While the SEC appears to be tary basis; this may be advisable their agreement or arrangement services to the SEC. aware of the concerns of the where the proposed merger could and can therefore be relied on The Council of the Bars and international legal community, it give rise to competition concerns without any prior decision by the Law Societies of the European remains to be seen what will be even though the thresholds are commission. The new regime Union (CCBE) – of which John the effect on the SEC of the var- not exceeded. will allow the commission to con- Fish is the current president and ious submissions that it has With effect from 1 January centrate its resources on matters on which your Law Society is received. The SEC is under a 2003, SI no 622 of 2002 applies other than the review of notified represented – has, at the time of strict deadline to adopt rules by the provisions of part 3 of the agreements – in particular, the going to press (January 2003), 26 January 2003. 2002 act to all mergers in which pursuit of serious EC competi- made serious representations to Further updates on this pro- one or more the undertakings tion law infringements (such as the European Commission, posed rule, as and when they involved carries on a ‘media busi- price fixing and other cartel which in turn made representa- become available, will be ness’ in the state, regardless of the arrangements). tions to the SEC. placed on the Business Law turnover of the undertakings Under the new regime, it will On behalf of European Committee page of the Law involved. The term ‘media busi- be for businesses and their legal lawyers, the CCBE has many Society’s website. ness’ and related terms are defined advisers to take a view as to concerns about the proposed rule in section 23(10) of the act. whether their agreements come and is seeking the exclusion of New Irish merger control SI no 623 of 2002 provides that within the scope of article 81, European lawyers from the pro- regime from January 2003 the fees for filing merger notifica- and, if so, whether they meet the posed rule on the grounds that: Part 3 of the Competition Act, tions with the authority will be criteria for exemption. Block 1) EU lawyers are already strictly 2002, which came into force on 1 €8,000. exemption regulations will con- regulated in their home juris- January 2003, introduced a new The authority has published a tinue to play an important role by dictions merger control regime to replace set of procedures for its examina- excluding from the prohibition in 2) Extra-territoriality of profes- that established under the tion of individual merger notifica- article 81 agreements and other sional regulation fails to take Mergers, Monopolies and Take- tion, and guidelines for merger arrangements which might oth- account of the sovereignty of overs (Control) Act, 1978. Under analysis explaining the authority’s erwise be prohibited. nations and legal systems, the new regime, mergers above position on substantive issues in The regulation also regulates undermines local regulation specified turnover thresholds are merger control. Notifications the relationship between national by bars, and creates – in this notifiable to the Competition must be made using either form and EC competition laws. Article case, unnecessary – conflicts in Authority. Failure to notify such M1 (long form) or form M2 3 provides that where the compe-

41 Law Society Gazette Jan/Feb 2003 Briefing

tition authorities of the member cles 81 or 82 of the EC treaty. the purpose of applying articles Footnote states or the national courts Member states will not be able to 81 and 82, the commission and 1 Council regulation (EC) apply national competition law prohibit such arrangements the national competition author- 1/2003 on the implementa- to anti-competitive arrange- under national competition law ities will have the power to tion of the rules on competi- ments or behaviour which may where they do not infringe arti- exchange information, including tion laid down in articles 81 affect trade between member cle 81(1) or where they fulfil the confidential information, in rela- and 82 of the treaty, OJ L 1 of states, they shall also apply arti- conditions of article 81(3). For tion to particular cases. 4.01.2003. G Practice notes REVENUE NOTICES TO SOLICITORS UNDER SECTION 808 OF THE TAXES CONSOLIDATION ACT, 1997 he Revenue Commissioners are taxation was not the purpose of the arises under these sections the formation or management Tcurrently serving section 808 transaction or any associated trans- c) Whether the person to whom the of a foreign body corporate (formerly section 59) notices on so- actions, or b) the transaction was a notice is given has taken or is which would be a closed com- licitors’ practices. The notice bona fide commercial transaction taking any (and, if so, what) part pany under Irish law, to speci- requires the recipient to supply and not designed for the purpose of in any (and, if so, what) transac- fy the name and address of information in respect of trans- avoiding a liability to tax, then tion of a description specified in that body corporate actions which come within the income arising was not chargeable the notice. v) where the solicitor has done ambit of sections 806, 807 and to tax in this section. anything in connection with 809 of the Taxes Consolidation Act, Section 808 empowers an offi- Notices which are currently being the creation or execution of 1997, which are anti-avoidance pro- cer of the Revenue Commissioners served request far more informa- any trust or settlement visions to counteract the transfer of to serve notice in writing requiring tion than a solicitor is required whereby income becomes assets to non-resident companies/ any person to furnish particulars under the act to furnish without the payable to a person resident trustees. as felt necessary for the purpose client’s prior consent. Section or domiciled outside the Section 806 applies tax to an of section 806, 807 and 809. The 808(4) limits the extent of the lia- state, the names and individual ordinarily resident or ordi- notice must specify a time limit bility of a solicitor to furnish infor- addresses of the settlor and narily resident in this state where which must not be less than 28 mation under this notice and in par- of that person. there is: days and is usually 40 days in ticular: a) A transfer of assets practice. a) A solicitor is not regarded as The notices generally relate to cer- b) Made by an individual resident or The court’s attitude to such having taken part in a transac- tain specified territories and not ordinarily resident in this state notice was clearly set out by Ackner tion by reason only that the solic- all ‘foreign’ transactions are c) Whereby income becomes J, who stated: ‘Any complaint that itor has given professional reportable. The notices as fur- payable by or by virtue of the rel- to be asked now to provide the advice to a client in connection nished require far more information evant transfer either on its own information places an unduly with the transaction than a solicitor is entitled to give or in conjunction with associated oppressive burden upon him (the b) A solicitor cannot, unless with without his client’s prior consent, operations to a person resident recipient) would be met with the the client’s consent, be com- and if information is furnished outside the state, and either – obvious answer; you have been an pelled to do more than state – which results in a breach of confi- i) the chargeable person has as author of your own misfortune’. i) that he was acting on behalf dentiality with the client, the client a result of the transfer and This case has been followed in of a client would have a cause of action any associated operations Warnock (practising as Stokes ii) the name and address of the against the solicitor for breach of the ‘power to enjoy’, whether Kennedy Crowley & Co) v The client contract. immediately or in the future, Revenue Commissioners. iii) where the solicitor has been The court has held that even the income of the foreign per- The Revenue Commissioners involved in connection with though the notices are too broad son, or are entitled to a wide range of infor- the transfer of the assets in and the Revenue Commissioners ii) the chargeable individual mation, including particulars as to: any way to an individual ordi- seek particulars to which they are receives or is entitled to a) Transactions with respect to narily resident outside the not entitled, this does not have receive any ‘capital sum’ the which the person is or was act- state or a body corporate res- the effect of rendering the notice payment of which is in any ing on behalf of others ident or incorporated outside invalid unless the information way connected with the rele- b) Transactions which, in the opin- the state which, if resident in is so entwined that it would be vant transfer or with any asso- ion of the Revenue Commission- the state, would be a closed difficult if not impossible to ciated operation. ers or such officer as the com- company, the names and separate. missioners may appoint, it is addresses of the transferor Any solicitor who is in receipt of If this occurs, the income arising to proper that they should investi- and the transferee or the per- a section 808 notice should refer to the foreign person is deemed gate for the purposes of sec- sons concerned in the associ- the statute to ensure compliance income of the transferor for all Irish tions 806, 807 and 808, ated operation as the case only with the strict wording of sec- income tax purposes. notwithstanding that in the opin- may be tion 808(3). If it can be proved, however, that ion of the person to whom the iv) where the solicitor has done Probate, Administration and either a) the purpose of avoiding notice is given no liability to tax anything in connection with Taxation Committee

42 Law Society Gazette Jan/Feb 2003 Briefing

ELECTRONIC TRANSFER OF FUNDS ractitioners will probably be the Solicitors’ accounts regula- The committee therefore rec- insist that any fees or charges to Paware that a number of lend- tions if they draw the full amount ommends that every solicitor be debited by his/her own bank ing institutions offer transmission of a client’s loan from their client using electronic transfers of loan should be deducted from the of a borrower’s loan funds by way account in order to close a pur- funds (or indeed any funds) solicitor’s office account in the of electronic transfer directly into chase transaction. should establish with his/her same way as any other bank the borrower’s solicitor’s client The committee raised its con- bank and with the borrower’s charges arising on the operation account. It has come to the atten- cerns about this practice with the lending institution (if different): of the solicitor’s client account. tion of the Conveyancing Irish Bankers’ Federation and was • What the bank’s procedures The committee is aware that a Committee that some lending advised that the federation does are for collecting fees/charges lending institution that offers only institutions sending and/or receiv- not issue guidelines to its mem- for electronic transfers an electronic transfer of funds ing such electronic transfers auto- bers on whether or how fees or • How much the bank charges for and does not issue loan cheques matically deduct their charges charges for such electronic trans- sending money electronically or bank drafts does not make a from the loan amount being trans- fers should be collected. The fed- • How much the bank charges for charge for sending the loan funds ferred. If solicitors are not aware eration suggested that solicitors receiving money electronically electronically, although it has of the fact that a deduction has should take the matter up with • Who pays the fee/charge – the pointed out that the receiving been made or if they do not know their own individual banks to sender or the receiver? bank may levy a charge on its own the exact amount of such deduc- ascertain the procedures used customer. tion, they are at risk of breaching and the fees charged. In this regard, a solicitor should Conveyancing Committee

WITHERING PERMISSIONS: PLANNING AND DEVELOPMENT (AMENDMENT) ACT, 2002 lanning permissions which permission lodged after 25 €270,000 or 0.5% of the sale later (the ‘exemptions’). Pwould have withered (ceased August 1999 and before the plan- price if less than that amount. Practitioners should note that ‘to have effect’) under section ning authority incorporated its There are provisions in the when acting in the purchase of a 96(15) of the Planning and housing strategy into its develop- 2002 act to prevent this levy dwelling erected on foot of a per- Development Act, 2000 (a ‘wither- ment plan. Under the 2000 act, being passed on to a purchaser. mission which would have with- ing permission’) will now have the the permission withered on 31 The levy will not apply to any ered but for the 2002 act, and normal life of a planning permis- December 2002 or two years from planning permission for four or which does not come within the sion (usually five years) by reason the date of the permission, less dwellings, or for housing on exemptions, they will require a of the 2002 Planning Act. whichever is the later. land of 0.1 hectares or less. Nor receipt from the planning author- However, there is a price to be Dwellings built on foot of a per- will it apply to dwellings the exter- ity confirming payment of the levy paid. mission which would have with- nal walls of which are completed in respect of that dwelling prior A withering permission is one ered but for the 2002 act will be within two years from the date of to, or on completion of, the granted for residential develop- subject to a levy of 1% of the sale the permission, or by 31 purchase. ment on foot of an application for price if equal to or in excess of December 2002, whichever is the Conveyancing Committee

PRACTISING CERTIFICATES practising certificate must be certificate. Any solicitor found to mencement of the practice year. cate could jeopardise their pro- Aapplied for before 1 February be practising without a practising Assistant solicitors cannot fessional indemnity insurance sit- in each practice year in order to certificate will be referred to the absolve themselves from this uation. Further-more, a break in be dated 1 January of that year Disciplinary Tribunal. responsibility by relying on their continuity of practising certifi- and thereby operate as a qualifi- Assistant solicitors should employers to procure their prac- cates may disqualify a solicitor cation to practise from the com- note that it is the statutory obli- tising certificates. from applying for judicial appoint- mencement of the practice year. gation of every solicitor to ensure Practitioners should also note ment. It is misconduct for a solicitor that he or she has a practising that practising for any period of PJ Connolly, Registrar of to practise without a practising certificate in force from the com- time without a practising certifi- Solicitors

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43 Law Society Gazette Jan/Feb 2003 Briefing

ACTING FOR A NON-RESIDENT VENDOR: TAX CLEARANCE ISSUES

he solicitor for the non-resi- land, and any option, consent or or management and shall be terms with the Irish legislation, Tdent vendor of land in the embargo affecting the disposition assessable and chargeable in the and in the case of Willson v state has two possible exposures: of land. name of the factor, agent, receiv- Hooker ([1995] STC 1142) the income tax/corporation tax and The provision which affects er, branch or manager’. phrase ‘agent’ was considered in capital gains tax. solicitors in the course of sale is This means that the agent will the context of a lawyer acting on These exposures do not arise contained in section 644(2). If the be assessable in his or her per- the disposal of a property for a from prior transactions, as would Revenue Commissioners think sonal capacity. non-resident. be the case for capital acquisi- that a non-resident vendor (in the The question must now be Mr Willson, a resident of the tions tax, but arise, inherently, circumstances which Revenue asked whether the Revenue, hav- UK for tax purposes, arranged for from the transaction in hand, consider is dealing in or develop- ing failed to issue a direction in the acquisition of a company whether it be a conveyance, ing land) is entitled to any consid- time, could assess the solicitor, called Ashvale Investments assignment or transfer of land or eration, they may direct that sec- as agent, under section 1035. Limited, a non-resident company. shares in a company deriving the tion 238 is to apply – in other There does not appear to be any Mr Willson instructed his greater part of its value from land words, the person by or through particular protection for the solici- surveyor to bid on the land on in the state. There are circum- whom any such payment is made tor if the money is paid into a behalf of the company. He also stances where the Revenue can is to treat it as an annual payment bank account in the name of the negotiated with another company be exposed, so the legislation subject to the deduction of stan- client. for the sale of the land at a makes the solicitor the ‘scape- dard rate income tax in force at higher price. goat’ if any tax escapes the net. the time of payment. This is the Agency He instructed solicitors regard- There are other examples of this ‘direction’ referred to in requisi- Section 1034 of the Taxes ing the purchase and the immedi- in the tax code. tion 17. Consolidation Act, 1997 deals ate re-sale of the land by Ashvale It is the accepted position that with agency, and it is possible that Investments Limited. He used Income tax/corporation tax if the direction referred to above a solicitor acting for a non-resi- Ashvale Investments Limited The Taxes Consolidation Act, does not issue by the date the dent could be regarded as an headed notepaper. He was subse- 1997, part 22, is headed sale is closing, the solicitor has ‘agent’ within this context. This quently assessed to corporation Transactions in land, with a fur- no requirement under the particu- would leave a solicitor exposed in tax on the gain made on the sale ther sub-heading Provisions relat- lar provisions. If the vendor is two areas: income tax and capital of the land on the basis that he ing to dealing in or developing liable to tax for dealing in or devel- gains tax. was an agent of the non-resident land and disposals of develop- oping land and has agreed, no Income tax. All rents payable company. ment land. direction will issue. The direction to non-residents, whether that He contended that he was not Although a disposal of land may issue where the anti-avoid- non-resident is corporate or indi- a regular agent of the company on may be capital in nature giving ance legislation applies. However, vidual, is subject to income tax in the basis that he did not satisfy rise to a gain, there are circum- neither the purchaser nor his Ireland, viz the deduction of the normal term of ‘agency’ on stances where the tax legislation solicitor can be sure and so must income tax at standard rate from the grounds that he acted only regards a dealing in land or devel- be wary that a direction may the payment. If that rent is being once on behalf of Ashvale oping land as giving rise to an issue. paid directly to the landlord by the Investments Limited. This con- income tax/corporation tax However, under section 645 of tenant, the tenant is obliged to tention was rejected by the court. charge. Section 640 of the 1997 the Taxes Consolidation Act, deduct standard rate tax. If it is It was held that a ‘regular agency’ act, in particular, sets out the cir- 1997, the Revenue Commission- being paid to an agent in Ireland is ‘an agency that is not a casual cumstances in which disposing of ers have the power to obtain infor- who accounts for it to the non-res- or occasional agency’. Mr land might be regarded as a deal- mation but, in the case of a solic- ident landlord, that agent is Willson’s agency was more than a ing in or development of land sub- itor, this information is restricted obliged to deduct standard rate casual or occasional agency as he ject to income tax/corporation (without the consent of the client) tax. was the person through whom all tax. This particular note is not to the fact that the solicitor is act- Capital gains tax. For many the transactions of Ashvale detailed enough to carry a discus- ing on behalf of a client and the years an argument developed as Investments Limited in the UK sion of those provisions but to furnishing of the name and to whether a solicitor acting for a was carried out during the rele- warn the solicitors relating to this address of the client. non-resident was an ‘agent’ within vant period. It would appear from matter particularly the reference Mention should be made here the meaning of this section. this case, therefore, that the in requisition 17 of the Law (but much more reference will be Counsel’s opinions were obtained focus of section 1035 is on the Society’s requisitions on title to ‘a made later) to section 1034 of the by both the Revenue and the Law nature of agency rather than the direction’ from the Revenue Taxes Consolidation Act, 1996, Society in this regard, with differ- number of transactions carried Commissioners. which provides: ‘A non-resident ent results. The 1997 act, section out. This section also applies to any person shall be assessable and 1043, extends the provisions of This is definitely a point against shareholding in a company, or any chargeable to income tax in section 1034 to capital gains tax. solicitors, although it is only per- partnership interest or any inter- respect of any profits or gains The UK equivalent of section suasive. est in settled property, deriving its arising, whether directly or indi- 1035 was contained in section 23 The UK equivalent of section value, or the greater part of its rectly, through or from any factor- of the Taxes Act, 1988 (since 1035 was repealed in their value, directly or indirectly from ship, agency, receivership, branch repealed). It was identical in Finance Act 1995, with totally dif-

44 Law Society Gazette Jan/Feb 2003 Briefing ferent wording being incorporated. case of a non-resident vendor. There should be no difficulty in to in correspondence with the It is also interesting to note This is to be welcomed, as it is a ascertaining the tax if the acquisi- Revenue Commissioners and they from section 1035 that the profit protection for the solicitor and we tion was an arm’s-length purchase seem to either be totally unaware or gain must derive directly or should not try to alter it. In the for full consideration and the dis- of the agreement or casual in indirectly ‘through or from any … absence of this certificate, the posal was an arm’s length sale for their approach to it. We have been agency’. If, therefore, solicitors purchaser must deduct 15% of consideration. In such circum- involved in situations where solic- are acting for a non-resident on the proceeds and account for it to stances, the price or value of the itors were waiting up to two years the disposal of, say, an invest- the Revenue. property is fixed at both dates. to get a letter from the Revenue ment property in Ireland, there 3) On the other hand, if the sale is The difficulty arises where the Commissioners before they could are three situations: under €500,000, there is no purchase or acquisition was not release the balance of the funds 1) The non-resident landlord has need for a form CG50A and the at arm's length, being a voluntary to clients. This is not satisfactory, never paid tax in Ireland on the solicitor is left to his own devices. disposition or an inheritance. A and the Revenue continues to dis- rents arising out of this property The solicitor, therefore, should sale between connected persons appoint in this area. 2) The sale is for over €500,000 protect himself, and he can do would fall into this category even There have been cases where 3) The sale is for €400,000. this by obtaining the consent of if it was for full consideration. the client has threatened to sue the vendor client to withhold suffi- Adjudication involves delay and a the solicitor and we are aware of 1) If the solicitor has not been act- cient of the proceeds (say 20%) to client will be unwilling to let his some cases where they did sue. ing for the non-resident client in ensure that he is covered for any solicitor retain 20% of the pro- There is no doubt that the the collecting of rents, it is doubt- capital gains tax that may arise. ceeds for too long. monies held are client monies. ful if the Revenue Commissioners The client may find this difficult An agreement was reached The difficulty is therefore caused could assess the solicitor to and may insist on payment in full. with the Revenue Commissioners by two things: income tax on the basis of agency. This is where the problems arise. many years ago in relation to this 1) The Revenue’s inability to As the solicitor was not acting, it Even at this level, a significant type of case. It was agreed that if recognise that the proceeds of could not be said that the rents capital gains tax liability can arise. the inspector of taxes did not pro- sale (particularly money which arose, directly or indirectly, It will be less (at present rate) pose to audit the case, particular- has to be used to pay tax) are ‘through or from any … agency’ of than €100,000, but it could be ly the acquisition cost, he would still client monies, and due to the solicitor. He had no involve- still quite significant (see exam- issue a letter in confirmation. This the client if demanded, and ment whatsoever. On the other ple below). is the letter of ‘no audit’ referred 2) The slowness of the Revenue hand, if he was collecting rents Commissioners in reaching (even partially or even for part of finality on valuation matters or the time), he would have to seri- EXAMPLE giving letters of ‘no audit’ in ously consider his position as to € appropriate cases. whether he is or is not an agent. Sale of 20 acres of land @ €20,000 per acre 400,000 This might involve only the collec- Less costs 8,000 In none of these cases does the tion of perhaps an initial month’s Acquisition 1974 @ €1,000 per acre 392,000 lodgement of money to a bank rent or even a security rent. account in the client’s name pro- Base cost €20,000 2) If the sale is over the limit of tect the solicitor. It would be oth- Stamp duty € 800 €500,000 envisaged in section Costs € 400 erwise if that lodgement was to 980 of the Taxes Consolidation €21,200 x 7.18 his estate agent’s account, in Act, 1997, a form CG50 will be which case the estate agent has 152,216 submitted to the Revenue the liability. It is doubtful if the Gain 239,784 Commissioners with full details estate agent will agree in these Annual exemption 1,270 and they will not issue the certifi- Taxable gain 238,514 x 20% circumstances. cate CG50A without prior payment = €47,702.80 Probate, Administration and of the capital gains tax, in the Taxation Committee

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45 Law Society Gazette Jan/Feb 2003 Briefing LEGISLATION UPDATE: 16 NOVEMBER 2002 – 20 JANUARY 2003

ACTS PASSED European Communities 1992 and 2002 and to the Contents note: Appoints 1/1/ Appropriation Act, 2002 (Amendment) Act, 2002 Housing Finance Agency Act, 2002 as the establishment day Number: 28/2002 Number: 27/2002 1981 for the purposes of the act. Contents note: Appropriates to Contents note: Amends the Euro- Date enacted: 24/12/2002 The establishment of the the proper supply services and pean Communities Act, 1972 in Commencement date: 24/12/ Commission for Communications purposes sums granted by the order to provide that certain 2002 Regulation has the effect of Central Fund (Permanent parts of the Treaty of Nice shall dissolving the Office of the Provisions) Act, 1965 and form part of the domestic law of Social Welfare Act, 2002 Director of Telecommunications makes certain provision in rela- the state once Ireland has rati- Number: 31/2002 Regulation and transferring its tion to the financial resolutions fied the treaty Contents: Amends and extends functions to the new commission passed by Dáil Éireann on Date enacted: 5/12/2002 the Social Welfare Acts to provide under the act 4/12/2002 Commencement date: Com- for increases in the rates of Date enacted: 13/12/2002 mencement order to be made social insurance and social Companies (Fees) Order 2002 Commencement date: 13/12/ (per s3(3) of the act) assistance payments, and Number: SI 557/2002 2002 improvements in the family Contents note: Amends the National Development Finance income supplement scheme; pro- Companies (Fees) Order 2001 (SI British-Irish Agreement Agency Act, 2002 vides for the changes in PRSI 477/2001) as amended to pro- (Amendment) Act, 2002 Number: 29/2002 announced in the budget, includ- vide for the application of the late Number: 26/2002 Contents note: Establishes a ing an increase in the annual filing penalty, having regard to the Contents note: Amends the National Development Finance earnings ceiling above which con- annual return filing deadline British-Irish Agreement Act, Agency (NDFA) to advise state tributions are not payable by imposed on companies pursuant 1999 to give effect to the inter- authorities, including government employed contributors; and con- to s127 of the Companies Act, national agreement between the departments, on evaluating tains additional measures for 1963 (substituted by s60 of the Government of Ireland and the financial risks and costs and on optional contributors (class P Company Law Enforcement Act, Government of the United cost effective finance for major PRSI) 2001) Kingdom of Great Britain and infrastructure projects; to assess Date enacted: 19/12/2002 Commencement date: 5/12/ Northern Ireland to enable the optimal funding for public invest- Commencement date: Various – 2002 decisions of the North/South ment projects set out in the see act Ministerial Council (NSMC) in national development plan (NDP) Company Law Enforcement Act, relation to the six all-island and other infrastructure priori- SELECTED STATUTORY 2001 (Section 58) Regulations implementation bodies to be ties; and to raise finance for NDP INSTRUMENTS 2002 taken by the Irish and British projects. NDFA functions are dis- British-Irish Agreement Number: SI 544/2002 governments together during the charged through the National (Amendment) Act, 2002 Contents note: Prescribe particu- temporary suspension of the Treasury Management Agency (Commencement) Order 2002 lar professional bodies, including Northern Ireland Assembly (NTMA). Provides for the neces- Number: SI 552/2002 the Law Society of Ireland, for the Date enacted: 29/11/2002 sary amendments to the National Contents note: Appoints 3/12/ purposes of s58 of the Company Commencement date: 3/12/ Treasury Management Agency 2002 as the commencement Law Enforcement Act, 2001 2002 (per SI 552/2002) Act, 1990 date for the act (reporting by prescribed bodies Date enacted: 19/12/2002 of misconduct by liquidators or Domestic Violence Commencement date: 19/12/ Building Regulations receivers to the director of corpo- (Amendment) Act, 2002 2002; 1/1/2003 for the estab- (Amendment) (No 2) rate enforcement) Number: 30/2002 lishment day for the National Regulations 2002 Commencement date: 1/12/ Contents note: Amends the Development Finance Agency Number: SI 581/2002 2002 Domestic Violence Act, 1996 by (per SI 617/2002) Contents note: Amend part 5 the substitution of a new section (ventilation) of the second sched- Competition Act, 2002 4(3) relating to ex parte interim Planning and Development ule to the Building Regulations (Notification Fee) Regulations barring orders, following the (Amendment) Act, 2002 1997 to provide for the removal 2002 decision in Keating v Crowley Number: 32/2002 of water vapour from kitchens, Number: SI 623/2002 (Supreme Court, 9/10/2002), Contents note: Amends s96, bathrooms and other areas Contents note: Prescribe a fee of which found that s4(3) of the part V (housing supply) of the where water vapour is generated €8,000 to accompany notifica- Domestic Violence Act, 1996 Planning and Development Act, Commencement date: 1/12/ tions of mergers or acquisitions was unconstitutional. Also 2000 in relation to the require- 2003, subject to exceptions – in accordance with s18 of the amends s5(4) of the 1996 act ments for the provision of social see regulations Competition Act, 2002 so that it corresponds with the and affordable housing; makes Commencement date: 1/1/ wording of the new s4(3) other miscellaneous amend- Communications Regulation 2003 Date enacted: 19/12/2002 ments to the 2000 act and cer- Act, 2002 (Establishment Day) Commencement date: 19/12/ tain amendments to the Housing Order 2002 Competition Act, 2002 2002 (Miscellaneous Provisions) Acts, Number: SI 510/2002 (Section 18(5)) Order 2002

46 Law Society Gazette Jan/Feb 2003 Briefing

Number: SI 622/2002 (Amendment of Cruelty to Animals forms to be used by persons who replace the Refugee Act, 1996 Contents note: Applies the provi- Act, 1876) Regulations 1994 make declarations for the purpos- (Appeals) Regulations 2000 (SI sions of part 3 of the Competition Commencement date: 5/12/2 es of the Irish Nationality and 342/2000). Supplement the pro- Act, 2002 to all mergers or acqui- 002 Citizenship Acts, 1956 to 2001, cedures set out in s16 of the sitions in which one or more of or who apply for certificates of Refugee Act, 1996 in relation to the undertakings involved carries Food Safety Authority of Ireland naturalisation. Also prescribe the the determination by the Refugee on a media business. The terms Act, 1998 (Amendment of First form of certificates of naturalisa- Appeals Tribunal of appeals ‘media business’ and ‘media and Second Schedules) Order tion which the minister may grant against recommendations of the merger’ are defined in s23(10) of 2002 and the form of notice in Iris refugee applications commission- the act Number: SI 580/2002 Oifigiúil of the grant of a certifi- er on applications for recognition Commencement date: 1/1/2003 Contents note: Amends the first cate of naturalisation as a refugee schedule to the Food Safety Commencement date: 30/11/ Commencement date: 13/12/2 Copyright and Related Rights Authority of Ireland Act, 1998 2002 002 (Certification of Licensing (previously amended by SI Scheme for Reprographic 184/2000) to update the list of Local Government Act, 2001 Road Traffic Act, 1994 (Section Copying by Educational food legislation in force – acts, (Part 15) Regulations 2002 25) (Commencement) Order Establishments) (The Irish statutory instruments and EC reg- Number: SI 582/2002 2002 Copyright Licensing Agency ulations. Also makes an amend- Contents note: Prescribe the Number: SI 597/2002 Limited) Order 2002 ment to the second schedule to classes of local authority employ- Contents note: Appoints 1/1/ Number: SI 514/2002 the act. For convenience, the full ees to whom the provision of part 2003 as the commencement Contents note: Certifies the list of legislation contained in the 15 of the Local Government Act, date for s25 of the act (require- licensing scheme operated by the first schedule is set out in the 2001, regarding an ethical frame- ment to carry driving licence while Irish Copyright Licensing Agency explanatory note to SI 580/2002 work, apply. Prescribe the annual driving vehicle) Ltd for copying by educational declaration form, giving particu- establishments in accordance Freedom of Information Act, lars of declarable interests as Road Traffic Act, 2002 with ss57 and 173 of the 1997 (Prescribed Bodies) (No required by s171 of the act, to be (Commencement) (No 2) Order Copyright and Related Rights Act, 2) Regulations 2002 furnished by relevant employees 2002 2000 Number: SI 530/2002 and members of local authorities Number: SI 598/2002 Commencement date: 13/1/ Contents note: Prescribe each of Commencement date: 1/1/2003 Contents note: Appoints 1/1/ 2003 the bodies listed in the schedule 2003 as the commencement to the regulations as a public Local Government (Financial date for ss12(2) and 18 of the Criminal Justice (Legal Aid) body for the purposes of the Procedures and Audit) act; appoints 1/2/2003 as the (Amendment) Regulations 2002 Freedom of Information Act, 1997 Regulations 2002 commencement date for s15 of Number: SI 575/2002 by their inclusion in paragraph Number: SI 508/2002 the act Contents note: Provide for an 1(5) of the first schedule to the Contents note: Set out the finan- increase of 4% with effect from act cial and audit practices and pro- Trustee (Authorised 1/10/2002 in the fees payable Commencement date: 1/11/ cedures to be followed and asso- Investments) Order 1998 under the criminal legal aid 2002 ciated forms to be issued by local (Amendment) Order 2002 scheme to solicitors for atten- authorities in the management of Number: SI 595/2002 dance in the District Court and for Health (In-Patient Charges) their day-to-day financial and audit Contents note: Substitutes a new appeals to the Circuit Court, and (Amendment) (No 2) activities. Revoke the Public second schedule to the Trustee for an increase of 4% with effect Regulations 2002 Bodies Orders 1946 to 1998 (Authorised Investments) Order from 1/10/2002 to solicitors and Number: SI 553/2002 Commencement date: 14/11/ 1998 (SI 28/1998) which speci- counsel in respect of essential Contents note: Amend the Health 2002 fies conditions to apply to the visits to prisons and other custo- (In-Patient Charges) Regulations investment of trust funds affect- dial centres (other than garda sta- 1987 and 2002 by raising the National Development Finance ed by the Trustee (Authorised tions) and for certain bail applica- daily charge for in-patient servic- Agency Act, 2002 Investments) Act, 1958. The tions es to €40 and the maximum (Establishment Day) Order 2002 main effect is to remove the amount payable in any period of Number: SI 617/2002 restriction on the proportion of European Communities 12 consecutive months to €400. Contents note: Appoints 1/1/ trust funds which may be invest- (Amendment of Cruelty to Exemptions, including medical 2003 as the establishment day ed in a single collective invest- Animals Act, 1976) Regulations card holders and hardship provi- for the National Development ment scheme or insurance con- 2002 sion, continue to apply Finance Agency for the purposes tract and to replace this with a Number: SI 566/2002 Commencement date: 1/1/2003 of the National Development requirement to have regard to cer- Contents note: Give effect to Finance Agency Act, 2002 tain considerations such as con- council directive 86/609/EEC Irish Nationality and Citizenship centration of investment risk regarding the protection of ani- Regulations 2002 Refugee Act, 1996 (Appeals) Commencement date: 2/1/ mals used for experimental and Number: SI 567/2002 Regulations 2002 2003 G other scientific purposes. Revoke Contents note: Prescribe the pro- Number: SI 571/2002 Prepared by the Law the European Communities cedure to be followed and the Contents note: Revoke and Society Library

47 Law Society Gazette Jan/Feb 2003 Briefing Personal injury judgment

Tort – personal injury – fall in bus while proceeding to upper deck with a child – contributory negligence – dispute over medical reports – video evidence of an investigator – issue of exaggeration by plaintiff of medical condition and symptoms – High Court hearing – appeal to the Supreme Court – claim that loss of earnings letter was the work of solicitors and that the plaintiff was not responsible – view of Supreme Court on responsibilities of plain- tiffs and their solicitors – consideration of effect of exaggerated claim – review of legal authorities in context of exaggerated claim – the concept of unjust recovery

CASE Siwsan Shelley-Morris v Bus Átha Cliath/Dublin Bus, High Court judgment of O’Higgins J; Supreme Court, Denham, McGuinness and Hardiman JJ with judgments delivered by Denham and Hardiman JJ (McGuinness J agreeing with both judgments) of 11 December 2002. THE FACTS n Saturday 22 September stopped at a red light. Mrs Morris’s fall, and the bus had not fered a loss of income to date O1995, Mrs Siwsan Shelley- Shelley-Morris proceeded to recently stopped. and will do so into the future in Morris (who at the time of the bring the child upstairs to the Mrs Shelley-Morris institut- respect of which actuarial evi- accident was 45 years old), with top deck. She held the child on ed High Court proceedings on dence will be led’. her husband and two-year-old her right hip and started to go 7 January 1997. In her state- On 26 June 2001, Mrs daughter, was a passenger in a up the stairs. She was approxi- ment of claim, delivered the fol- Shelley-Morris’s solicitors gave bus owned by Dublin Bus. The mately one step from the top lowing month, she claimed by particulars of special damages, bus was privately hired to bring when the bus allegedly jerked way of special damages loss of claiming £114,281.37 in respect people to a wedding in forward and then carried on earnings which were described of the loss of earnings to date Monkstown and after that to a accelerating. She was thrown as ‘unascertained and continu- and £298,037 loss of earnings reception at a hotel in Killiney. backwards. Her dress was torn ing’. At the time of the accident, into the future. These sums Previously they had been and up around her waist. Her she was employed as a commu- totalling £412,318.37 were for brought to the church from the knee became very painful and nity worker by a public authori- loss of earnings alone. She Grand Hotel in Malahide in the swollen; she could not stand up; ty in London. claimed in a subsequent letter same bus. and the heel of her shoe came On 8 November 1999, the from her solicitors on 4 July It was alleged by Mrs Shelley- off in the incident. The bus driv- solicitors for Mrs Shelley- 2001 that she was ‘incapable by Morris that on the journey from er strongly denied that there had Morris provided further partic- reason of ill-health of discharg- the church in Monkstown to the been any variation in his stan- ulars for the claim, stating that ing her duties with the reception in Killiney, the driving dard or manner of driving she had developed post-trau- Hammersmith and Fulham of the bus was somewhat more between one leg of the journey matic degenerative arthritis Social Services’. She had retired ‘jerky’. The plaintiff was in the and the other or that the bus which was progressive in nature from that body on 22 September lower deck, somewhere beyond jerked forward at any stage. He and would require a knee 1996. Subsequently, she moved half way up the bus towards the said the bus was in motion in the replacement at sometime in the to Wales, where she had been back, with her two-year-old normal fashion immediately future. The letter ended: ‘She unable to find similar employ- daughter sitting beside her. The prior to his noticing the com- has had to retire from her work ment. She also made a claim in child got bored, the bus having motion caused by Mrs Shelley- on health grounds and has suf- respect of loss of pension. JUDGMENT OF THE HIGH COURT he case came before her account of the accident. The pleaded on behalf of Bus Átha the jerky nature of the bus when TO’Higgins J in the High judge stated that Mrs Conlon Cliath. O’Higgins J stated that moving off seemed, to Court and the trial took place substantially corroborated the while he felt that Mrs Shelley- O’Higgins J, to amount to a con- between 24 and 26 October account of Mrs Shelley-Morris, Morris herself must take a share siderable degree of contributory 2001. Evidence was given by, both as to the bus having been of the responsibility for the acci- negligence. He penalised Mrs among others, a witness, Trudy stopped and moving off abruptly dent, it was correct that there Shelley-Morris in contributory Conlon, the plaintiff’s sister-in- causing a jerk. The judge stated was no embargo on people going negligence to 25%. law. O’Higgins J stated that she that he believed her and she car- up to the top of the bus. was ‘an extremely impressive wit- ried Mrs Shelley-Morris’s case However, to do so with a small The medical details ness, careful, accurate’ and in his on the factual issue. child on the hip in circumstances Following the accident, Mrs view to be believed. He accepted Contributory negligence was where one had already noticed Shelley-Morris was taken to

48 Law Society Gazette Jan/Feb 2003 Briefing

Loughlinstown Hospital where x-rays showed a united fracture. investigator retained by Dublin The video commenced when she received an injection, x-rays The medical reports described a Bus over a considerable period Mrs Shelley-Morris was return- and a bandage was applied. She significant injury with an excel- of time and a video tape of her ing from the premises of a con- returned to the wedding recep- lent result but for arthritis. movements over much of that sultant employed by Dublin tion. She went back to London Mrs Shelley-Morris disputed day was made. The video tape Bus. She was driven to the the following day and stated she the finding that the medical was played in the High Court. meeting by her father-in-law was in considerable pain. She result was ‘excellent’. She dis- It shows Mrs Shelley-Morris and brought her stick along. was subsequently seen in a puted that she was walking generally in the company of For most of the time during the fracture clinic and it was re- without a stick. In relation to other persons, especially her video tape, Mrs Shelley-Morris corded that she had sustained a the issue of ‘no significant pain’, father-in-law and sister-in-law, is not using the stick at all. The depressed fracture of the right she stated it depended on what walking on the public street, video tape showed that in walk- tibial platter. She was admitted one meant by ‘significant’. crossing the road to a restau- ing on the street and reeling in to hospital, where she subse- rant, getting in and out of a car, some form of wire or line and in quently underwent an operation The video evidence walking up and down a sloping crossing the road to her father- on her right knee, arthroscopy On 24 September 2001, a drive while carrying items, in-law after doing so, she and elevation of the lateral tibial month before the trial in the holding a child in one arm at appeared natural and unhin- platter with bone grafting and High Court, Mrs Shelley- hip level and playing with two dered despite the fact that she external fixation. Fixation was Morris had been observed by an boxer dogs. was not using a stick. She did provided by a laterally placed T- not show undue difficulty get- shaped buttress plate with ting in or out of a car. screws attached. The judge stat- THE HIGH COURT AWARD O’Higgins J stated that he ed that as a result of the opera- Having found that Dublin Bus was negligent and there was contrib- had to accept that in relation to tion, and the subsequent opera- utory negligence on the part of Mrs Shelley-Morris, O’Higgins J Mrs Shelley-Morris’s evidence tion to remove the metal from apportioned the degree of fault at 75% to Dublin Bus and 25% to overall he found that she was the knee, she was left with ‘an Mrs Shelley-Morris. exaggerating her symptoms ugly and unpleasant scar’. from time to time. In particular, In a subsequent medical Damages were assessed as follows: what was evident to the court report dated 20 November • Special damages from the video tape was at vari- 1997, a surgeon stated that Mrs Loss of pension and gratuity: £37,500 ance at least to the general pic- Shelley-Morris’s complaint was Loss of earnings for the future: £25,000. ture of her disability which she of a constant intermittent ache • General damages had offered to the court. around the right knee which Pain and suffering to date of trial: £70,000 O’Higgins J concluded that the became painful at times, the Pain and suffering into the future: £40,000. case was more difficult to evalu- joint swelling periodically. She ate because of the fact that the complained of pain if standing Total award: £172,500.00 court had found that she delib- in excess of 15 minutes and erately exaggerated some of her walking in excess of 100 yards Taking into consideration the apportionment for contributory negli- symptoms to the court. The was impossible without a rest. gence, the High Court awarded Mrs Shelley-Morris the sum of High Court found that Dublin She carried a walking stick con- £129,375. Dublin Bus appealed to the Supreme Court. Bus was mostly to blame for the tinuously outdoors. Subsequent accident. JUDGMENT OF THE SUPREME COURT he matter came before al injuries in the accident by that Mrs Shelley-Morris told ‘a specific ‘loss’ in her own mind. TDenham, McGuinness and virtue of the deliberate exagger- number of deliberate false- Further, it was submitted that Hardiman JJ, with Denham and ation by the plaintiff of those hoods’ in relation to her symp- the contents of the letter setting Hardiman JJ delivering judg- injuries, and that the High toms and capacities. He stated out the loss of earnings, even ments on 11 December 2002 Court erred in its assessment of that the manifest falsehoods in literally construed, should not (with McGuinness J concurring the appropriate damages in the overall impression of her be attributed to Mrs Shelley- with both judgments). Denham relation to loss of pension and performance in the video tape Morris as a claim advanced by and Hardiman JJ referred to the earnings when there was insuf- gave rise to a considerable diffi- her. This was because the letter grounds of appeal. It was argued ficient evidence to support such culty. The Supreme Court con- was the work of other persons. that the High Court had erred an assessment. sidered that Mrs Shelley- It was stated that these other in its findings that Dublin Bus Morris was capable of working. persons were her solicitors, who was the prime cause of the acci- The issue of exaggeration Pretending to be unable for any presumably arrived at the actual dent, the High Court had erred of the claim significant work, she was guilty sums specified with the input of in finding 25% contributory The Supreme Court judgments of ‘serious falsehood’. her former employers and other negligence only by Mrs Shelley- of Denham and Hardiman JJ It had been argued in court advisers. But it was said in court Morris, the High Court was in deal with the issue of the exag- that in the context of the claim that the plaintiff was not error in relation to the assess- geration by Mrs Shelly-Morris for loss of earnings for the responsible for the particulars ment of appropriate damages to of her medical condition and entire of her working life Mrs delivered. It was stated that be paid as a result of the person- symptoms. Hardiman J stated Shelley-Morris had incurred a even if the letter quoted was to

49 Law Society Gazette Jan/Feb 2003 Briefing be regarded as advancing a claim been submitted that the plain- expose himself or herself to the future. Hardiman J stated for the amount specified, the tiff’s ‘deliberate exaggeration’ adverse orders and costs. that a plaintiff who was found to claim had been resiled from at related solely to her description Hardiman J specifically referred have engaged in ‘deliberate trial. It was said that claims are of the effect of her injuries. It to Vesey, where it was stated that falsehood’ must face the fact often made in pleadings which was submitted that if a lie was there was plainly a point where that a number of corollaries are not supported in evidence. told in the course of the prose- dishonesty in a prosecution of a arise from such finding: The Supreme Court stated it cution of a claim for damages for claim could amount to an abuse • The plaintiff’s credibility in could see no merit whatever in personal injuries, that fact affects of the judicial process as well as general, and not simply on a any of these contentions. only the narrow aspect of the an attempt to impose on the particular issue, is under- Hardiman J stated that the refer- case to which the lie specifically other party. mined to a greater or lesser ence in the claim for the sum of relates, and that this was differ- Referring to a decision of degree £412,318.37 described as ‘special ent in degree from a wholly- Lord Denning in Goldsmith v • In a case, or an aspect of the damages’ and divided into loss of invented injury. Thus, while it Sperrings ([1977] 2 AER 566) case, heavily dependent upon earnings to the date of trial and was conceded that the video tape and the English Court of the plaintiff’s own account, future loss of earnings to date of would make one regard some of Appeal in Arrow Nominees v the combined effects of the retirement had been quantified Mrs Shelley-Morris’s earlier Blackledge ([2002] BCLC 167), falsehoods and the conse- to the last penny. Further, the descriptions as suspect, or exag- Hardiman J said it must not be quent diminution in credibil- plaintiff was an intelligent gerated, it should not be regard- considered that a falsehood in ity meant that the plaintiff woman, quite able to understand ed as wholly undermining her respect of one aspect of a claim may have failed to discharge to what she was and was not credibility or undermining it in would at worst lead to that par- the onus on him or her either entitled. Third, Hardiman J relation to unconnected aspects ticular part of a claim being generally or in relation to a specifically referred to the case of the case. reduced or disallowed. The particular aspect of the case of Vesey v Bus Éireann/Irish Bus courts had a power and duty to • If this occurs, it is not appro- (Supreme Court [2001] IR 192), Approach to an exaggerated protect their own processes priate for a court to engage in where the same submissions on claim from being made the vehicle of speculation or benevolent behalf of a plaintiff were strong- Hardiman J stated that the onus ‘unjustified recovery’. In a prop- guesswork in an attempt to ly deprecated. of proof lies on the plaintiff who er case, this can be done by stay- rescue the claim. Hardiman J stated that it was is, of course, ‘obliged to discharge ing or striking out the plaintiff’s inappropriate to contend that it in a truthful and straightfor- proceedings. Denham J emphasised that the the particulars of the plaintiff’s ward manner’. Where this has Quite properly, according to plaintiff, Mrs Shelley-Morris, claim are not to be attributed to not been done, the court is not Hardiman J in the circum- was in danger of losing her the plaintiff himself or herself. It obliged or entitled to speculate in stances of the present case, entire claim. Denham J empha- was very much to be hoped, he the absence of credible evidence. Dublin Bus had not sought this sised that deliberate exaggera- stated, that no such submissions To do so would be unfair to the drastic relief. That was not to tion by a plaintiff may be such as would be made in the future. He defendant. Moreover, a plaintiff say that this relief would be to be an abuse of process of the stated that the claiming of a very who engages in falsehoods may inappropriate in a similar case in court. In such a case, it may be large sum of money from a appropriate to put this to a wit- defendant was a serious matter THE SUPREME COURT AWARD ness and for counsel to address and most plaintiffs would know The Supreme Court set aside the awards of the High Court in the legal issues. this quite well. In any event, it respect of loss of pension and gratuity and loss of earnings for the In relation to liability and the was the responsibility of a solici- future. The following sums were awarded in respect of pain and issue of contributory negli- tor to ensure that the plaintiff is suffering: gence, both Denham and fully aware of the significance • Pain and suffering to date of trial £70,000 Hardiman JJ stated that they and, indeed ‘solemnity’, of • Pain and suffering in the future £20,000. would divide the responsibility advancing a claim for hundreds for the accident in equal meas- of thousands of pounds, or a Having determined the contributory negligence of Mrs Shelley- ure between Mrs Shelley- lesser sum, before the claim is Morris at 50%, the sum awarded by the Supreme Court amounted Morris and Dublin Bus. G presented to the defendant ‘not to £45,000, reduced from £129,375 which had been awarded by to speak of the court’. the High Court. This judgment was summarised by Hardiman J stated that it had solicitor Dr Eamonn Hall.

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50 Law Society Gazette Jan/Feb 2003 Briefing Update

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

ARBITRATION ruling that two requirements that date, the matter was Criminal Law (Rape) Act, 1981 must be satisfied for conduct to adjourned, ultimately to (as amended), sections 7, 8 – Step in the proceedings constitute a step in the pro- October 2001, to allow the re- Bunreacht na hÉireann, article Two requirements for conduct to ceedings: issuing of the summons for dan- 34.1 constitute step in proceedings – • The conduct of the applicant gerous driving which had been On 29 November 2000, OC whether second-named defendant must be such as to demon- inadvertently struck out. On was sentenced to three years’ had taken step in the proceedings by strate an election to abandon that date, the district judge, fol- imprisonment for sexual making particular averments in his right to a stay in favour of lowing DPP v Arthur ([2000] 2 assaults. The sentence was sus- affidavit – Arbitration Act, 1954, allowing the action to pro- ILRM 363), dismissed the pended subject to certain condi- s5(1) – order 56, rule 2 RSC ceed, and charges against the defendant/ tions. The trial judge (respon- The second-named defendant • The act in question must respondent on the basis that the dent) had made an order pro- applied for an order pursuant to have the effect of invoking defendant’s constitutional rights hibiting any reporting of the section 5 of the Arbitration Act, the jurisdiction of the court. to a fair trial with reasonable case and he continued this 1980, staying the proceedings so expedition would be violated order in force on 29 November. that the matter could be In making the averments in were the prosecutions allowed On 30 November 2000, follow- referred to arbitration. The paragraph 7, the second-named to proceed. The appellant ing submissions made on behalf plaintiffs opposed the applica- defendant could not be said to appealed that decision on the of certain newspapers and RTÉ, tion on the grounds that the have elected to abandon his grounds that the district judge the respondent varied the order second-named defendant had right to a stay. In such circum- erred in law in that no actual so as to prohibit the publication taken a step in the proceedings stances, it was unnecessary to prejudice had been shown by of the name and address of and, as a result, was no longer consider whether the state- the defendant. either OC or the complainant entitled to the order sought. ments made therein had the Ó Caoimh J answered the and of OC’s occupation. On 1 The alleged step was a request effect of invoking the jurisdic- question stated in the negative December, the applicant made by the second named tion of the court. and remitted the case back to applied to the respondent to defendant to the court in the Gleeson v Grimes, High the District Court. He held that have OC’s name published. The affidavit grounding the applica- Court, 01/11/2002 [FL6473] the district judge had erred in respondent refused, principally tion for a stay. In the affidavit, law in dismissing the charges as on the ground that it would not the second-named defendant each case had to be taken on its be in the complainant’s best indicated that he was not a party CRIMINAL facts and two identical periods interests. The applicant was to the contract. At paragraph 7, of delay may have differing granted leave to apply for judi- he stated that he was willing to Case stated, District Court results. The fact that the period cial review by Kinlen J to have consent to court determining Summary offences – delay – right at issue in the case of DPP v the orders of the respondent the issue as to whether or not he to expeditious trial – reason for Arthur was similar to that the quashed. In April 2001, the was a party to the contract if the delay of 22 months – dismissal by defendant complained of did respondent made an order pro- court considered this necessary. district judge – whether district not give rise to a conclusion viding the applicant with a copy However, he emphasised that in judge erred in law – whether that the complaints against the of the medical report relating to so consenting he was not waiv- respondent prejudiced in conduct of respondent should be dis- the complainant. In May 2001, ing his right to a stay or taking defence by delay in proceedings – missed, as the circumstances of the DPP obtained leave from any step in the proceedings. At Road Traffic Act, 1961, sections the two cases were different and Kelly J to bring judicial review the hearing, counsel for the sec- 2(B), 49 and 53 no prejudice was shown to have proceedings to have this order ond-named defendant indicated The defendant/respondent was arisen by reason of the final quashed. The DPP also sought that the second-named defen- charged with offences under period of delay. an order quashing the respon- dant was no longer seeking to sections 49 and 53 of the Road DPP v Byrne,High Court, Mr dent’s order of 30 November assert that he was not a party to Traffic Act, 1961, alleged to have Justice Ó Caoimh, 26/6/2002 2000 prohibiting the publica- the contract. It was submitted been committed in January [FL6488] tion of the OC’s name. The on behalf of the plaintiffs that 2000 in summonses issued in applications were listed for the second-named defendant, June 2000 and returnable for Certiorari, judicial review hearing together. The only having sought to invoke the September 2000. The trial was Circumstances in which judge may, statement of opposition to the assistance of the court, must be adjourned on a number of occa- following conviction of a sex offend- application to quash the order regarded as having taken a step sions until April 2001 at the er, direct prohibition of name of the of 30 November was filed by in the proceedings and was now request of the defendant offender – whether judge lacked OC. The applicant submitted no longer entitled to a stay. because of the unavailability of jurisdiction – whether orders sup- (supported by counsel for the Geoghegan J granted a stay, a witness he wished to call. On ported by adequate reasons – DPP) that the respondent did

51 Law Society Gazette Jan/Feb 2003 Briefing not have jurisdiction to make originally issued by the District whether the applicant was fit to general damages but not to the the order under the Criminal Court was a stale or invalid war- stand trial was a matter for the extent of a full year’s anticipated Law (Rape) Acts, that at the time rant and also contended that the trial judge to adjudicate upon earnings, estimated by the of making the orders the original request for extradition under section 2 of the Criminal plaintiff to be £25,000. To the respondent was functus officio on the criminal damage was a Lunatics Act 1800. sum for general damages was and that the reasons for the colourable device in order to Peart J granted the order of awarded €8,000 for future pain order were inadequate. OC sub- investigate the unlawful killing prohibition sought. The ground and suffering, which the court mitted that the terminology of charge. now adduced by the applicant was satisfied was likely to con- the act clearly envisaged that Geoghegan J dismissed the for the prohibition of his trial tinue for some time. €14,000 the trial judge could make such application. The District Court was an entirely new ground of was awarded for special dam- order as he considered neces- judge had jurisdiction to issue ill-health and therefore could be ages, taking into account the sary when the trial was over. the warrant in question and any the subject of a new application. possibility that the plaintiff may In quashing the orders of the defects in the recitals to the The applicant was suffering opt for further surgery on his respondent made on 30 Nov- warrant were not of such a fun- from Alzheimer’s disease, which jaw. ember 2000 and 1 December damental nature as to justify a would prevent the applicant McGauran v Smith and 2000, Kearns J held that, while finding of illegality of the appli- from properly instructing his McDermott, High Court, Mr the respondent had jurisdiction cant’s detention. At the time of legal team. There was a real and Justice Peart, 06/10/2002 to make some order, it did not the request for extradition, the substantial risk that if the appli- [FL6368] impute that he had jurisdiction Garda Síochána genuinely cant was to face trial he could to make the particular order intended to pursue the criminal not have a fair trial. This con- which he made. The jurisdic- damage offence. The fact that sideration outweighed the com- LAND LAW tion conferred by the act was the gardaí may have also intend- plaints and society’s right to one which was exercisable only ed prosecuting another offence have persons accused of Appeal with regard to the complainant. did not affect the validity of a offences brought to trial. The Promissory estoppel – whether The orders made by the respon- request for extradition. respondent would be restrained defendant acted to his detriment – dent did not in any way go to Stephens v Governor of from further prosecution of the proof of detriment – adverse posses- the accused’s right to a fair trial. Prison, High Court, Mr offences in question. sion – whether defendant entitled While the respondent acted Justice Geoghegan, 20/9/ O’C v Director of Public to declaration that he is entitled to from the best possible motives, 2002 [FL6411] Prosecutions, High Court, Mr beneficial ownership of property his stated reasons for making Justice Peart, 08/10/2002 The plaintiff had allowed his the order were incapable of sus- Judicial review, right [FL6426] son, the defendant, to use part taining the order which he did to fair trial of his yard for around 20 years in fact make. Constitutional law – right to fair to store vehicles but he had Independent Star Limited v trial – delay – prohibition – fair DAMAGES revoked this licence subse- Judge O’Connor, High Court, procedures – Alzheimer’s disease – quently and sought to have the Mr Justice Kearns, 01/11/ res judicata – whether ill-health Personal injuries, road traffic defendant prevented from 2002 [FL6547] grounds for prohibiting trial – Negligence – road traffic – person- entering on or using the land. whether order of prohibition al injuries – claim for future loss of The defendant counterclaimed, Extradition, habeas corpus restraining trial should issue – earnings – causation seeking a declaration that he Constitutional law – extradition – whether real risk of unfair trial As a result of a road traffic acci- was entitled to full beneficial detention – habeas corpus – juris- The applicant sought an order dent in 1998 where liability was ownership of the property on diction of District Court – practice of prohibition to restrain his not in issue, the plaintiff suf- the grounds that he was brought and procedure – murder – offence trial on the grounds of ill- fered injuries to his face and jaw back from England on an of criminal damage – whether health. The applicant claimed which continued to cause him express representation and war- applicant lawfully detained – that he was suffering from the moderate (as distinct from ranty that he would have sole whether arrest warrant defective – onset of Alzheimer’s disease minor or severe) discomfort, and exclusive right to the use of Criminal Justice (Public Order) which would prejudice his abili- leading to stress, especially the premises and that he acted Act, 1994 – Criminal Justice ty to defend himself. The appli- around exam time. He had to to his detriment on foot of those Act, 1999 – Bunreacht na hÉire- cant had previously been grant- take a year out of college as a representations. The Circuit ann 1937, article 40 ed an order of prohibition by result of failing his second year Court ordered that the defen- The applicant had been extra- the High Court preventing his exams and claimed for a full dant remove all vehicles from dited from England on foot of trial from proceeding. This year’s loss of potential earnings. the plaintiff’s premises. an arrest warrant issued by the order had been overturned by In assessing general damages in Kinlen J held that the defendant District Court and was remand- the Supreme Court, which the sum of €45,000, Peart J had acquired by adverse posses- ed into custody. Initially, the ordered that the trial should held that he was not satisfied sion a portion of the property in applicant faced a charge of proceed. The present applica- that the evidence sufficiently dispute but that the defendant criminal damage and subse- tion was opposed by the DPP, demonstrated that, on the bal- had not made out his claim for quently was also charged with who contended that the issue of ance of probabilities, the plain- title to the property by virtue of offences of murder and larceny. whether the applicant should tiff lost a year’s earning capacity promissory estoppel that, to The applicant sought an inquiry face trial had already been as a result of the accident but establish promissory estoppel a into his detention on the decided and was res judicata. In that some allowance would be material detriment in reliance grounds that the arrest warrant addition, it was contended that made for it in the assessment of on a promise of entitlement to

52 Law Society Gazette Jan/Feb 2003 Briefing land must be proved. However, The inquiry adjourned to tional rights of access to appeals the act of 1996 the combined detriment cannot be assumed enable the applicant to obtain procedure breached – Proceeds of effect of the impugned provi- and must be proved as a matter alternative representation. The Crime Act, 1996, sections 2 and 6 sions was not to deprive the of probability. The alleged applicant did not obtain alterna- – Taxes Consolidation Act, defendant of access to his detriment had not been proven tive representation and the 1997, sections 922 and 957 – monies and assets in the manner as the supporting evidence did hearing was held. The tribunal Bunreacht na hÉireann 1937, alleged. The defendant also not corroborate the defendant’s found the applicant guilty in articles 4, 34(1), 37(1), 40(1), (2) alleged that the High Court had claim in that respect. respect of 58 of the 70 com- and (3) erred in law in not according Christopher McGuinness v plaints made. The tribunal The plaintiff obtained summary him locus standi to make submis- Francis McGuinness, High referred the matter to the High judgment in the High Court sions on the impugned sections Court, Mr Justice Kinlen, Court with a recommendation against the defendant for of the acts of 1996 and 1997. 19/3/2002 [FL6453] that the applicant’s name be income tax due on foot of Murray J dismissed the struck off the roll of solicitors. assessments made in August appeal, holding that the defen- The applicant was granted leave 1997. The defendant had dant had sufficient opportunity LEGAL PROFESSION to apply for judicial review for a sought to appeal that assess- to pursue the remedies available declaration that sections 7 and ment, enclosing his own assess- to him under sections 2(3) Disciplinary procedures, 8(a) of the act were unconstitu- ment of liability, and was given a and/or 6 of the act of 1996. The judicial review tional and an order of certiorari hearing date for June 1998 for phrase ‘necessary expenses’ in Solicitors – Disciplinary Tribunal – quashing the tribunal’s recom- that appeal. He failed to appear section 6 included monies due declaration – certiorari – whether mendations on grounds that the for the hearing on that date and and payable to the state pur- sections 7 and 8(a) of the act made inadequate provision summary proceedings were suant to a statutory obligation. Solicitors (Amendment) Act, for legal representation, did not then issued by the Criminal Accordingly, the combined 1960 (as amended) unconstitution- grant a right of appeal and that Assets Bureau. He had previ- effect of the impugned provi- al – whether applicant denied fair the tribunal acted unreasonably ously been notified that a valid sions was not to deprive the procedures at inquiry – whether and unfairly. appeal must be accompanied by defendant of access to his applicant entitled to legal aid – Carroll J refused the relief the admitted amount of tax due monies and assets in the manner Solicitors (Amendment) Act, sought, ruling that the appli- submitted within 30 days of alleged. In the High Court, the 1960, ss6, 7, 8, 16, 38 – Solicitors cant’s claim that sections 7 and the notice of assessment. defendant had made substantial (Amendment) Act, 1994 – 8(a) of the act were unconstitu- Previously, two of his accounts submissions as to why the rele- Bunreacht na hÉireann, articles tional were unsubstantiated. had been made subject to an vant sections of the impugned 34.1, 40.3.2 The act provided for an appeal asset-freezing order pursuant to acts should be interpreted as The respondent was a statutory to the High Court against the section 2(1) of the Proceeds of having the effect of denying him body which dealt with alleged findings of misconduct by the Crime Act, 1996. The defendant access to his monies and assets, misconduct of solicitors. The tribunal. The applicant had full submitted that as a result of his the subject of the freezing order. Law Society referred a com- opportunity to meet the case monies being so frozen he was Accordingly, the defendant had plaint to the tribunal with against him and the recommen- unable to comply with the been accorded locus standi to the respect to the alleged miscon- dation was not irrational. No requirement in section 957 of extent necessary to argue the duct of the applicant. The divi- duty was imposed on the state to the Taxes Consolidation Act, 1997 issue. sion of the tribunal considered provide legal aid in a case such that he pay his admitted tax lia- Criminal Assets Bureau v John that a prima facie case was dis- as the present one, given the bilities prior to an appeal and, Kelly, Supreme Court, 11/10/ closed and directed an inquiry fact that the applicant was a accordingly, his constitutional 2002 [FL6618] to be held. The applicant qualified solicitor and was rep- rights were breached in that he sought discovery of documents resented by a solicitor before was prevented from pursuing an from the tribunal, delaying the dismissing him. appeal against those assess- TORT inquiry, and the tribunal direct- Malocco v The Disciplinary ments. Section 2(3) of the act of ed that the inquiry would com- Tribunal, High Court, Ms 1996 entitles a person who has Abuse of process, personal mence on 4 February 1999. On Justice Carroll, 16/10/2002 been the subject of an order injuries 4 February 1999, prior to the [FL6533] pursuant to section 2(1) to apply Litigation – loss of earnings – commencement of the inquiry, to the court to discharge the damages – contributory negligence the applicant through his solici- order on the grounds that the – video evidence – abuse of process – tor made a number of applica- REVENUE property concerned is not prop- whether plaintiff unfit for work – tions. The hearing was erty which is the proceeds of whether evidence tendered by adjourned to 2 March 1999. On Assessment, practice and crime. Section 6 provides that plaintiff credible that date, the applicant’s solici- procedure the High Court may permit an The plaintiff had been involved tor made an application to come Appeal procedure – right to fair order under section 2 to be var- in an accident while on a bus off record, which was refused. procedures – right to appeal assess- ied ‘if it considers it essential to and, as a result, had sustained The inquiry continued and the ment of liabilities – necessity to pay do so’ to enable the person con- injuries. As part of her proceed- applicant’s solicitor participated. tax due before appeal – ability to cerned ‘to discharge reasonable ings subsequently brought, the After an adjournment, the pay tax due to existence of asset- living and other necessary plaintiff submitted a claim for applicant appeared on his own freezing order – whether open to expenses’. It was contended by loss of earnings. At the trial in and informed the tribunal that taxpayer to apply for release of the plaintiff that as a result of the High Court, it emerged by he had dismissed his solicitor. assets so frozen – whether constitu- the effect of sections 2 and 6 of way of video evidence that the

53 Law Society Gazette Jan/Feb 2003 Briefing plaintiff’s injuries were not as the High Court would be set contributory negligence. during the hearing of the appeal serious as originally thought aside and a decree in the sum of O’Neill v ESB,High Court, as to whether the respondent’s and had in fact been exaggerat- £45,000 awarded. Mr Justice Finnegan, 31/7/ finger was bitten by one of the ed. O’Higgins J in the High Shelly-Morris v Bus Átha 2002 [FL6572] appellant’s agents as alleged and Court awarded £172,500 in Cliath, Supreme Court, 11/ as to other circumstances sur- damages, with a reduction made 12/2002 [FL6611] Personal injuries, appeal, rounding the incident in ques- for contributory negligence. evidence tion. In setting aside the order The defendants appealed to the Liability, personal injuries Onus of proof – balance of probabil- of the Circuit Court, Peart J Supreme Court, arguing that Accident at work – contributory ities – failure to discharge onus – held that without some corrob- the finding of only 25% con- negligence claim – liability – conflict of evidence – whether oration of the biting allegation tributory negligence against the Safety in Industry Act, 1980, sec- respondent’s evidence supported made by the plaintiff, on the plaintiff and the amount of tion 12 claim on balance of probabilities – balance of probabilities the damages awarded were in error. The plaintiff was injured in an negligence – personal injuries – plaintiff had not discharged the The Supreme Court (Denham J accident at work. On the evi- whether caused by appellant’s secu- onus of proof that his finger had and Hardiman J delivering dence, the court was satisfied rity staff in restraining respondent been bitten by one of the judgment, McGuinness J agree- that the defendant was in breach – whether force used excessive in bouncers and, accordingly, the ing) allowed the appeal and of the Factories Act, 1955, as sub- circumstances – claim dismissed force used by the agents of the reduced the damages. Denham J stituted by the Safety in Industry The respondent brought a claim appellant in restraining the held that it was clear that the Act, 1980. The defendant plead- for damages for personal respondent was reasonable in plaintiff had suffered a signifi- ed that there was contributory injuries in the Circuit Court, the circumstances. cant injury. However she had negligence on the part of the which, he alleged, were sus- Thomas Callery v Sinnan Inns deliberately exaggerated her plaintiff. The net point was tained in an incident outside the Ltd, High Court, Mr Justice symptoms and had lost credibil- whether the plaintiff had appellant’s premises, when two Peart, 28/11/2002 [FL6583] G ity as a consequence. The dam- removed any of the inspection security men, during the course ages awarded would be reduced plates from the unit of machin- of their employment with the The information contained here to £90,000 and contributory ery he was working on. The appellant, restrained the is taken from FirstLaw’s Legal negligence assessed at 50%, plaintiff denied any contributo- respondent. The respondent Current Awareness Service, pub- resulting in an award of ry negligence. Following alleged that the force used was lished every day on the Internet at £45,000. Hardiman J held that Kennedy v East Cork Foods Ltd excessive and that one of the www.firstlaw.ie. For more infor- the plaintiff’s manifest false- ([1973] IR 244), Finnegan P men bit his finger. The Circuit mation, contact bartdaly@first- hoods and the overall impres- accepted the principles enunciat- Court gave judgment in favour law.ie or FirstLaw, Merchants sion of the video evidence had ed in relation to breach of statu- of the respondent. The appel- Court, Merchants Quay, Dublin given rise to a considerable dif- tory duty and satisfied himself lant appealed that decision. 8, tel: 01 679 0370, fax: 01 679 ficulty. The original award of that the plaintiff was not guilty of There was a conflict of evidence 0057.

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54 Law Society Gazette Jan/Feb 2003 Briefing Eurlegal News from the EU and International Affairs Committee Edited by TP Kennedy, director of education, Law Society of Ireland

CFI overturns Airtours merger decision

he European Court of First competitors, First Choice plc. ing of article 81 EC and without parency. Conversely, it held that TInstance has overturned the The proposed merger was noti- any actual or potential competi- in the market in question there decision by the European fied to the European tors, let alone customers or con- are practical difficulties which Commission to prohibit the Commission under the European sumers, being able to react make it hard for operators to merger between UK tour oper- Community merger regulation effectively’ (CFI judgment, para find out what capacity other ators Airtours plc and First (ECMR), and in September 1999 61). operators have planned for. Choice plc.1 The commission the commission announced its Thus, it would be difficult for had concluded that, following decision to prohibit the merger Elements of collective the major players to collectively the merger, the three remaining (Case IV/ M1524, OJ [2000] dominance reduce capacity in order to large tour operators in the UK L93/1). The court outlined three neces- increase prices. would hold a collectively domi- The EC merger regulation sary conditions for collective It is significant, however, that nant position on the UK market obliges the commission to pro- dominance to exist, namely, that the CFI did not reject the idea for short haul foreign package hibit mergers that create or there be a sufficient degree of that, in theory, collective action holidays. In finding that the strengthen a dominant position market transparency, that tacit by a dominant oligopoly may be commission had not proven its as a result of which effective co-ordination be sustainable limited to capacity planning, as case, the CFI criticised the com- competition would be signifi- over time, and that the reaction collective dominance has previ- mission’s factual and legal analy- cantly impeded in the common of competitors and consumers ously been limited to price col- sis and held that the commis- market or a substantial part of it would not jeopardise the results lusion. Indeed, several economic sion’s decision was ‘vitiated by a (regulation 4064/89, article of the common policy (CFI studies over the past decade have series of errors’ (para 294). 2[3]). judgment, para 620). indicated that a collusive out- This is the first time the CFI A dominant position may be Market transparency. The CFI come is possible where parties has annulled a merger prohibi- held by one firm or it may be held that there must be a suffi- collude at the capacity planning tion and only the second time a shared by two or more firms in cient degree of market trans- stage but later adopt market commission merger decision has a situation referred to as ‘joint’ parency so that each member of prices.4 been overturned.2 The judg- or ‘collective dominance’.3 the dominant oligopoly must As regards market conditions, ment is also significant because Collective dominance may arise have the ability to know how the the commission had argued that in this case the CFI undertook a on an oligopolistic market (a other members are behaving in the volatility of demand, which detailed review of the evidence market dominated by a few order to monitor whether or not characterised the market, was and findings of fact, whereas the major players) where the large they are adopting the common conducive to collusive behav- practice of the courts to date players (the dominant oligopoly) policy. The degree of trans- iour. However, the CFI noted was limited to considering lose their incentive to compete parency is also important for the that economic theory suggests errors of law or procedure. against each other. The CFI purposes of permitting each the opposite – that volatility of The CFI’s judgment provides defined collective dominance as member of the dominant oli- demand renders the creation of useful guidelines on the elements a situation where: ‘in view of the gopoly subsequently to detect a collective dominant position required to establish the exis- actual characteristics of the rele- alterations made by the others as more difficult – and that the tence of collective dominance vant market and of the alteration regards capacity, to distinguish commission had failed to estab- and is of particular interest to in its structure that the transac- deviations from the common lish that economic theory did businesses that operate in con- tion would entail, the latter policy from mere adjustments not apply or that volatility in centrated markets. On a broader would make each member of the consequent upon volatility of demand was conducive to the level, the judgment is of interest dominant oligopoly, as it demand and, finally, to ascertain creation of collective domi- as it clarifies that a thorough becomes aware of common whether it is necessary to react nance. legal and economic analysis and a interests, consider it possible, to any such deviations by pun- The CFI held that the stabil- high standard of proof are economically rational, and hence ishing them (for example, by ity of historic market shares is required to prohibit a merger. preferable, to adopt on a lasting engaging in competitive behav- also conducive to the develop- basis a common policy on the iour in return). ment of tacit collusion, but in Background to the case market with the aim of selling at The CFI rejected the com- this instance the commission In April 1999, Airtours plc, a above competitive prices, with- mission’s assertion that the had wrongly excluded growth UK tour operator and supplier out having to enter into an reduction in the number of through acquisitions to con- of package holidays, announced agreement or resort to a con- operators in the market would clude that market shares had its intention to acquire one of its certed practice within the mean- result in increased market trans- remained static.

55 Law Society Gazette Jan/Feb 2003 Briefing

Tacit co-ordination must be sus- choose to book their holidays on commission must establish a con- to take account of efficiency tainable over time. There must be the basis of the lowest price vincing level of proof to prohibit gains. Other suggestions for an incentive (such as the threat available. any merger and, in this case, the change include the establishment of retaliatory action by other CFI concluded that the commis- of a specialised economists unit members of the dominant oli- Interdependence of the sion had not proved its case to the in the commission, the introduc- gopoly) not to depart from the major tour operators requisite legal standard. tion of a structure within the common policy on the market. The requirement that there be The CFI noted that in this case commission to review proposed However, the CFI held that in economic links between the the commission’s task was to merger decisions independently order to demonstrate collective members of the dominant oli- demonstrate the creation (rather of the team conducting the dominance, the commission gopoly, held in previous cases to than the strengthening) of a col- examination, and closer scrutiny does not need to prove the exis- be a requirement for the exis- lective dominant position (judg- by the CFI of the commission’s tence of a specific retaliation tence of collective dominance,5 ment, para 77). In this regard, the merger decisions.6 The Airtours mechanism involving a degree was also addressed by the CFI. level of competition existing at judgment comes at a time when of severity. Rather, the commis- The court stated that the exis- the time when a transaction is the commission is conducting a sion must establish that each tence of economic links alone is notified is a decisive factor in comprehensive review of the member of a dominant oligop- not sufficient to demonstrate col- establishing whether collective ECMR7 and debate on such oly is aware that highly compet- lective dominance and held that dominance had been created, and changes is certain to intensify in itive action on its part would it was for the commission to the CFI held that mergers that the wake of this judgment. G provoke identical action from prove that the commercial links will not result in a significant the other members, so that it between the large tour operators change in the level of competition David Geary is a Brussels-based would derive no benefit from its resulted in an increase in the obtaining previously should be solicitor with the UK law firm initiative. level of interdependence between approved. It was held that the Wragge & Co. The CFI found that the retal- them (CFI judgment, para 289). commission had failed to prove iatory measures cited by the Indeed, the CFI noted that the that transaction would change the Footnotes commission could not be imple- supply arrangements between structure of the market so that 1 Case T-342/99, Airtours plc v mented quickly and effectively the large operators might allow this leading operators would no Commission of the European enough to act as adequate deter- them to capitalise on capacity longer act as they had in the past. Communities, judgment of 6 rents and therefore the deviating and business opportunities in an As the ECMR concerns merg- June 2002. actor would benefit from the industry with very high fixed ers that create or strengthen a 2 The European Court of Justice advantages of having acted first. costs and low profit margins and dominant position, the commis- overturned a commission Reaction of competitors and con- therefore allow them to act inde- sion may not prohibit mergers decision to approve a merger sumers. The CFI held that in pendently of each other. that do not result in a dominant subject to conditions in joined order for collective dominance Similarly, as regards the high position but are detrimental to cases C-68/94 and C-30/95, to be sustainable, the foreseeable degree of vertical integration consumer welfare (for example, France v Commission (Kali and reaction of current and future achieved by the large tour opera- those that may lead to price Salz) ([1998] ECR I-1375). competitors, as well as con- tors, the CFI held that in the increases). However, economic 3 A dominant position is a posi- sumers, must not jeopardise the absence of evidence to the con- theory suggests that the increased tion of economic strength that results expected from the com- trary there must be a presump- market power resulting from a enables the holder to act inde- mon policy. However, the court tion, given how the relevant mar- merger will always be detrimental pendently of market forces, was of the view that in this case ket operated, that vertical inte- to consumer welfare and a merg- such as reactions of competi- smaller competitors were in a gration made the larger tour er should only be allowed if the tors or consumers. See case position to take advantage of operators more independent of merged firms become more effi- 322/81, Michelin v Commission capacity reductions by the large each other (judgment, para 284). cient as a result of the transaction ([1983] ECR 3461). tour operators, in particular as and these efficiency gains are 4 See, for example, Stagier and the market was characterised by Criticism of the commission passed on to consumers. Wolak, ‘Collusive pricing with low barriers to entry, a factor Throughout its judgment, the While in this case the commis- capacity constraints in the which militates against collec- CFI was highly critical of the sion could not prove collective presence of demand uncer- tive dominance. commission’s arguments and dominance, nevertheless the tainty’, Rand Journal of The CFI also held that a col- interpretation of the evidence Airtours/First Choice merger Economics, 23(2), pp203-219. lective dominant position can- available to it. The CFI noted would have reduced the number 5 Kali and Salz, note 2 above; not be maintained in the long that the commission ignored eco- of major players in an already case T-102/96, Gencor v term if barriers to market entry nomic theory without explaining concentrated market from four to Commission ([1999] ECR II- are insignificant. The court why it should not apply, miscon- three without offering any signif- 879). found that this was in fact the strued the meaning of documents icant efficiency gains. Arguably, 6 In addition to the fast-track case and that smaller operators and evidence available to it, and therefore, the requirement to procedure for expediting pro- had sufficient access to the mar- was even unable to produce prove dominance has led to the cedures before the CFI, intro- ket to compete against the larg- details of an econometric study incorrect outcome in this case, duced on 1 February 2001, OJ er operators. on which it said it had relied. from an economic point of view. [2000] L322/4. As regards the reaction of The judgment indicates the The judgment has led to calls 7 Green paper on the review of consumers, the CFI held that standard of empirical and theo- for a move away from the ‘domi- council regulation (EEC) no consumers had countervailing retical reasoning that should be nance test’ and for changes to the 4064/89, COM (2001) 745/6 buyer power as they could applied in merger cases. The ECMR allowing the commission final.

56 Law Society Gazette Jan/Feb 2003 Briefing Enforcement of EC competition law: radical changes for practitioners

n December 2002, the council this year or in early 2004. that national courts are permit- these bodies is not an easy one, Iadopted council regulation There are two significant and ted to apply article 81(1) but given in particular the shared 1/03 on the implementation of radical changes in the operation cannot grant an individual competences of the bodies the rules on competition laid and implementation of the com- exemption under article 81(3). involved and the parallel appli- down in articles 81 and 82 of the petition law code as laid down As pointed out by the commis- cation of EC and national com- treaty (OJ L1 of 4 January in regulation 1/03, the first sion in the white paper, the petition laws in certain circum- 2003). Regulation 1/03 is to being that national courts and position in national courts is stances under article 3 of regu- apply from 1 May 2004. It will competition authorities will particularly curious in that lation 1/03. In a previous ver- repeal, in particular, (with one have the power to apply article undertakings can, in practice, sion of regulation 1/03 and, in exception) council regulation no 81(3) of the EC treaty and the bring court proceedings to a halt particular, of article 3 thereof, it 17/62 of 6 February 1962, first second being that the notifica- by lodging a notification with was proposed that where there regulation, implementing arti- tion system established under the commission. The national was an ‘effect on trade between cles 81 and 82 of the treaty (OJ regulation 17 will be abolished. courts are also in a difficult posi- member states’, only EC com- 12 of 21 February 1962). The Article 9, one of the key provi- tion, given their obligations petition law would apply to the EC Commission will, in the sions of regulation 17, granted under article 10 of the treaty, not exclusion of national competi- near future, adopt an imple- to the commission the sole to reach a conclusion that would tion law codes. With the parallel menting regulation and it also power to declare that article be inconsistent with that of the application of EC and national proposes to publish a number of 81(1) was inapplicable to commission. The position of laws, the interface issues notices to assist in interpreting restrictive practices by reason of national courts varies according between the various bodies is regulation 1/03. The first of article 81(3). This power has to whether an agreement is one intensified. In addition, given these notices will give guidance now been extended under regu- that must be notified in order to the multiplicity of bodies with on complaints to the commis- lation 1/03 to the national benefit from individual exemp- the power to apply articles 81 sion and how these complaints courts of member states and to tion or whether it is one that can and 82, serious issues arise in will be dealt with, where and national regulatory authorities be exempted whether it has been terms of the body that is best how to complain and when it (NRAs). Regulation 17/62 also notified or not. placed to investigate the anti- would be appropriate to com- established a compulsory notifi- The commission had fre- competitive effects of any given plain to the commission. There cation system whereby under- quently expressed its wish for arrangement. At article 13, reg- will also be a notice on the cir- takings which wished to benefit more centralised application by ulation 1/03 attempts to resolve cumstances under which under- from article 81(3) were required both national authorities and how cases will be allocated as takings can seek the advice of (subject to certain exceptions) to national courts. In particular, in between the EC Commission the commission. It is expected notify their restrictive practices its 1983 competition report, it and the NRAs. that these circumstances will be to the commission and exemp- stressed the role which national Article 13 of regulation 1/03 very narrowly defined and that tions could be backdated to the legal channels could play in provides that where NRAs of intervention by the commission date of the notification. establishing infringements of two or more member states will be discretionary rather than Regulation 1/03 abolishes this the Community competition have received a complaint or mandatory. There will also be a system of notification. These rules. It also urged decentralisa- are acting on their own initia- notice on the concept of ‘effect changes, which are radical tion in its notice on co-opera- tive under article 81 or article on trade’ and a notice giving reforms to the system as cur- tion between national courts 82 against the same agreement, guidance on the interpretation rently operated, were first pro- and the commission and its decision of an association or of article 81(3). Finally, the 1993 posed in the white paper on the notice on co-operation between practice, the fact that one notice on co-operation between modernisation of the rules the EC Commission and the authority is dealing with the national courts and the commis- implementing articles 81 and 82 national authorities. It is expect- case will be sufficient grounds sion in applying articles 81 and of the EC treaty1. ed that the new notices on co- for the others to suspend the 82 of the treaty (OJ C39 of 13 operation between the commis- proceedings before them or to February 1993) and the 1997 Application of article 81(3) sion and the NRAs and the reject the complaint. The com- notice on co-operation between by NRAs and national courts commission and national courts mission can also reject a com- the commission and national Article 5 of regulation 1/03 pro- will deal in great detail with the plaint on the grounds that a authorities (OJ C313 of 25 vides that the NRAs are to have issue of co-operation under the competition authority of a October 1997) will also be the power to apply articles 81 new system. However, regula- member state is dealing with amended and replaced to give (including article 81(3)) and 82 tion 1/03 itself also deals with the case. Article 13 goes on to effect to the changes outlined in of the EC treaty, while article 6 these vital co-operation issues. provide that where a competi- regulation 1/03. The commis- provides that national courts of Chapter IV of regulation tion authority of a member sion expects to publish these the member states are to have 1/03 deals with a number of state or the commission has notices in July of this year and similar powers. A particular interface issues between the var- received a complaint which has will begin a public consultation problem in the past, and which ious bodies with competition already been dealt with by debate at that time. It expects to will continue to pose problems law competences. This question another competition authority, publish the final versions later until regulation 1/03 applies, is of the dynamic between each of it may reject it.

57 Law Society Gazette Jan/Feb 2003 Briefing

The question also arises of the NRAs are to have the power authorisation system. The posi- cle 81(1). In 1970, it published a the dynamics between the to provide one another with and tion in the new Competition Act, notice for guidance on the topic national courts and the commis- use in evidence, any matter of 2002 in Ireland is consistent and this notice was updated on a sion. Article 15 of regulation law or of fact including confi- with this position. The number of occasions, most 1/03 outlines the new provisions dential information. This is Competition Act, 2002 intro- recently in 1997 (OJ C 372 of 9 in relation to the co-operation going to raise difficulties in duced a new licensing scheme. December 1997 on page 13). between the commission and terms of confidentiality, given Under this new system, the Irish The commission also intro- national courts. It provides that the multiplicity of recipients of Competition Authority no duced a number of other notices in proceedings for the applica- information that is given in con- longer has the power to grant an starting in 1962 in order to clar- tion of articles 81 or 82 that the fidence. individual certificate to an indi- ify the conditions under which courts of the member states may The new directly-applicable vidual agreement and, therefore, restrictive practices would not ask the commission to transmit exception system should pro- it no longer has the power to normally have as their object or to them information in its pos- duce benefits in terms of the declare that a specific agreement effect the restriction of competi- session or its opinion on ques- refocusing of the work of the does not infringe section 4(1) of tion and, therefore, would not tions concerning the application commission and in terms of rad- the Competition Act, 2002. In be caught by article 81(1). A of the Community competition ically reducing its workload in addition, it no longer has the notice was produced on exclu- rules. The article goes on to particular areas. However, it power to adopt an individual sive dealing contracts with com- outline the circumstances in will be difficult to achieve con- licence for an individual agree- mercial agents, on agreements, which NRAs and/or the com- sistency and legal certainty for ment. It is likely that the deci- decisions and concerted prac- mission can submit oral or writ- clients in such a system and a lot sion to abolish the notification tices in the field of cooperation ten observations to national will depend on the manner in system at a national level was between enterprises, on the courts. which the system is operated taken as a pre-emptive step so as assessment of certain sub-con- The commission noted in the and, in addition, the manner in to bring Irish law into line with tracting agreements in relation white paper that there was a which all of the relevant bodies proposed EC competition law. to article 81(1) and on the need for flexible and rapid co-operate. Once the system is In the white paper, the com- assessment of co-operative joint mechanisms for the exchange of introduced, clients will have to mission noted that the authori- ventures in 1993. The commis- information between NRAs, be made aware of the difficulties sation/notification system sion also introduced a number national courts and the EC with the new system, and the resulted in undertakings system- of block exemptions. The coun- Commission. This is essential possible increase in costs in atically notifying their restrictive cil, under article 83 of the treaty, for the effective operation of the terms of complying with it. practices to the commission adopted a number of enabling system under regulation 1/03. which, with its limited adminis- regulations that empowered the Articles 11 and 12 outline a Abolition of the trative resources, was very soon commission to declare the pro- framework for this exchange of notification system faced with the impossibility of hibition in article 81(1) inappli- information. In particular, arti- Under article 2 of regulation dealing by formal decision with cable to certain categories of cle 11(3) provides that the com- 17/62, it is possible for under- the thousands of cases which agreements.2 Finally, the com- petition authorities of the mem- takings to apply to the commis- had been submitted to it. At mission also introduced the ber states are to inform the sion for a negative clearance paragraph 25 of the white paper, concept of the comfort letter: commission in writing before, whereby the commission is able the commission noted that as these letters informed the (or without delay after), com- to certify that, on the basis of early as 1967 it was faced with a undertaking that the commis- mencing the first formal inves- the facts in its possession, there mass of over 37,000 cases that sion considered that, on the tigative measure in any particu- are no grounds under article had accumulated since the entry basis of the information in its lar case. This information may 81(1) or article 86 for action on into force of regulation 17 four possession, no further action on also be made available to NRAs its part in respect of an agree- years earlier. The commission the case should be taken and of other member states. In addi- ment, decision or practice. goes on to note in the white that it intended to close its file. tion, the NRAs are obliged to Under article 4(1) of regulation paper that it was, therefore, nec- The introduction of the comfort inform the commission before 17, it is provided that agree- essary to make certain adjust- letter helped to speed up the the adoption of a decision ments, decisions and concerted ments to the system in order to process considerably as it elimi- requiring that an infringement practices of the kind described limit individual notifications, nated the various procedural be brought to an end, accepting in article 81(1), which came into speed up the processing of and publication requirements of commitments or withdrawing force after the entry into force applications for authorisation formal decisions. the benefit of a block exemp- of regulation 17 and in respect and encourage complainants to In paragraphs 76 to 81 of the tion. This information may also of which the parties seek the turn to their own national white paper, the commission be brought to the attention of application of article 81(3), have authorities or courts. It did this outlines the reasoning behind the NRAs of other member to be notified to the commis- in a number of ways. In its first the abolition of the notification states. Article 12 outlines the sion. Until they had been noti- formal decision, decision system. In the first place, it con- provisions on the exchange of fied, no decision on the applica- 64/344 Grossfillex-Fillistorf (OJ siders that the requirement that information provided by under- tion of article 81(3) can be L 64 of 10 June 1964 at page undertakings wishing to invoke takings as between the commis- taken. Article 4(2) of regulation 1426), the commission intro- article 81(3) are obliged to noti- sion and as between the NRAs. 17 outlines the exceptions to duced the concept of ‘apprecia- fy their restrictive practices acts Article 12(1) provides that for this rule. ble effect on competition’, as a curb on their commercial the purpose of applying articles Regulation 1/03 does not which allowed minor cases to be strategy and represents a con- 81 and 82, the commission and provide for a notification/ excluded from the scope of arti- siderable cost. In a system

58 Law Society Gazette Jan/Feb 2003 Briefing where there was no need to can adopt decisions of a declara- terms of assessing the compati- the EU will also need to come notify and where there was a tory nature finding that the pro- bility of agreements and prac- to grips with the competition directly applicable exemption hibition in article 81 or article tices with the competition law law code in a different manner, system, the commission consid- 82 of the treaty does not apply. code. It will mean that solicitors and competition authorities ers that the position of under- These declarations will be in Ireland, with the assistance of themselves will need to put in takings would be strengthened issued with a view to clarifying economists, will need to make place structures that will be were they to seek the enforce- the law and ensuring its consis- the final call on any particular able to deal with the new rules. ment of their restrictive prac- tent application throughout the arrangement. The manner in which the rules tices in courts, as they would be Community, with a particular The changes that have been and the exchange processes are able to plead that article 81(3) focus on new types of agree- introduced under the new sys- operated will be key to the covered their restrictive prac- ments or practices which have tem will radically alter the smooth operation of the new tices. The commission also not been settled in the existing manner in which practitioners system. G noted that the notification sys- case law and administrative in the area deal with competi- tem proved useful as long as the practice. tion legislation. It is important Lynn Sheehan is a solicitor with interpretation of article 81(3) The commission hopes that in these circumstances that the Cork law firm Ronan Daly was uncertain. Finally, the com- the abolition of the notification legal certainty and clarity be Jermyn. mission also considers that the system will lead to the concen- provided in terms of regulation abolition of the notification sys- tration by it of its resources on 1/03. It will be interesting, in Footnotes tem will improve legal certainty. investigating cases arising out of this regard, to see the new 1 Commission Programme no It is noteworthy that, in terms of complaints or taken up on its notices which the commission 99/027, COM (1999) 1001 legal certainty, the EC own initiative. Its powers of intends to publish mid-year as final of 28th April, 1999 Commission has provided investigation have also been there are quite a number of 2 See, for example, commission somewhat of a safety net for increased in the new system areas in regulation 1/03 which regulation 2790/1999 of 22 undertakings. In recital 14 of under regulation 1/03 so as to require clarification. Because of December 1999 on the regulation 1/03, it outlines the take into account this new the increased responsibilities application of article 81(3) of fact that in exceptional cases focus. For practitioners, the for practitioners, the need for the treaty to categories of (such as those involving ‘the abolition of the notification sys- certainty and clarity is particu- vertical agreements and con- public interest of the tem means that we will have larly acute. NRAs, courts, certed practices – OJ no Community’), the commission increased responsibilities in judges and lawyers throughout L336 of 29 December 1999. LEAVE IT TO THE EXPERTS!

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59 Law Society Gazette Jan/Feb 2003 Briefing Recent developments in European law COMMERCIAL LAW laid down by the structure of the The court held that the dispute action. It held that two actions pension scheme in question. It did came within the terms of the have the same object when the The council has agreed a directive not cover benefits paid on redun- Brussels convention and that the first seeks a declaration that the for the distance marketing to con- dancy even if classified as old-age article 1 bankruptcy exception was defendant is not liable for damage sumers of financial services. It benefits and calculated by refer- not applicable. Article 1 is con- as claimed by the defendants, and establishes common rules for sell- ence to the rules for calculating fined to ‘proceedings relating to the second seeks to have the ing contracts for credit cards, normal pension benefits. The the winding-up of insolvent compa- plaintiff in the first action held investment funds, pension plans English court had also sought nies’. Cover Europe was in volun- liable for causing loss and ordered and other financial services to guidance on whether such benefits tary liquidation and was solvent, to pay damages. The court fol- consumers by telephone, facsimi- were binding on the transferee if even the sum at issue was paid. lowed that decision, holding that le or through the Internet. The they derived from secondary legis- This was consistent with the deci- there was no material distinction directive prohibits abusive market- lation. The ECJ held that all obliga- sion in UBS AG v Omni Holding AG between the relief sought in the ing practices seeking to oblige con- tions arising from a contract of (in liquidation) ([1999] 2 All ER Italian and English proceedings. sumers to buy a service, which employment, an employment rela- (Comm) 686). In that case, Rimer They both related to the admission they have not sought (‘inertia sell- tionship or a collective agreement J had held in interpreting the iden- of the debt based on the guaran- ing’). The directive also contains were transferred, regardless of tical provision in the Lugano tee. The court then turned to the rules to restrict unsolicited tele- whether these obligations are Convention that for the exception question of whether the case phone calls (‘cold calling’) or unso- derived from secondary legislation to apply, the claim must be derived involved the same parties. The licited e-mails (‘spamming’). It pro- or are implemented by such legis- directly from the winding-up. He English proceedings were between vides for an obligation to provide lation. expressed the view that a claim by Kvaerner and the liquidator, where- comprehensive information before a liquidator to recover debts would as the Italian proceedings involved a contract is concluded. LITIGATION not be within the article 1 excep- the company, the principal debtor, Consumers will have a right to tion. On the same basis, a claim Athanor and Kvaerner. For conven- withdraw from a contract except Brussels Convention by a creditor challenging a liquida- tion purposes, the court consid- where there is a risk of price fluc- Re Cover Europe Ltd, English High tor’s decision about payment of ered that in court actions the liq- tuations in the financial market. Court (Chancery Division), 26 claims is not one that derives uidator acting in the name of the February 2002. Cover Europe Ltd directly from the winding-up. It is company and the litigator acting as EMPLOYMENT carried on business as an insur- one that was capable of arising liquidator should be considered as ance company in Italy. It entered quite apart from such winding up the same party. Therefore, the two Transfer of undertakings members’ voluntary liquidation in or the insolvency. sets of proceedings did fall within Case C-164/00 Katia Beckmann v England in February 1999, when a The next question was the pos- the remit of article 21. The remain- Dynamco Whicheloe Macfarlane liquidator was appointed. Kvaerner sible application of articles 21 and ing question was whether the Ltd, 4 June 2002. Ms Beckmann was one of the company’s credi- 22 of the convention. Where two English or the Italian courts were was an employee of Dynamco tors. It brought proceedings in courts are seised of the same first seised of the matter. The Whicheloe Macfarlane (DWM). She England arguing that the liquidator matter, the court second seised is English courts were first seised had been an employee of the should admit the debts owing to it to decline jurisdiction. The court due to the earlier service of the National Health Service and the in the liquidation. An Italian branch examined whether the two cases originating application on the liq- operation of which she was part of the company had guaranteed a concerned the same cause of uidator. had been taken over by DWM. sum of money to secure the per- action and involved the same par- When she was made redundant, formance by an Italian company ties. The English proceedings Case C-256/00 Besix SA v she claimed an early retirement (Athanor) of its payment obliga- involved Kvaerner and the liquida- Wasserreinigungsbau Alfred Kretz- pension and other benefits. This tion. This company defaulted and tor, whereas the Italian proceed- schmar GmbH & Co KG (WABAG), was a package that NHS employ- Kvaerner argued that Cover ings involved the company, Planungs-und Forschungsgesell- ees had been entitled to. DWM did Europe was liable under the terms Athanor and Kvaerner. The Italian schaft Dipl Ing W Kretzschmar not pay her any of these benefits. of the guarantee. Athanor disputed proceedings sought a declaration GmbH & CO KG (Plafog), 19 The English High Court referred the claim and argued that Cover as to the invalidity of the guaran- February 2002. WABAG (part of the matter to the ECJ, asking Europe should not have to pay. tee provided to Kvaerner, whereas the Deutsche Babcock group) and whether the benefits in question Separate proceedings were start- the English proceedings con- Besix signed an agreement in should have been paid due to the ed in Italy seeking a declaration cerned the proof of debt submitted Brussels in French. In this agree- Transfer of undertakings directive that the guarantee be declared by Kvaerner in the voluntary liqui- ment, they undertook to submit a or whether they came within an null and void and of no legal dation. The court referred to the joint tender for a water supply proj- exception in article 3(3) of that effect. The English proceedings test used in case C-406/92 The ect in the Cameroon and if their directive for old-age, invalidity or were issued and served on 13 Tatry ([1999] QB 515) for deter- tender was accepted to perform survivors’ benefit. The ECJ held August 2001. The Italian proceed- mining ‘the same cause of action’. the contract jointly. Under the that the exception only covered ings were issued on 27 August In that case, the court had held agreement they were not to com- benefits which were paid to an 2001, served on Athanor on 8 that the ‘cause of action’ compris- mit themselves to other partners. employee when he reached the September and on Cover Europe es the facts and the rule of law However, Plafog, another member end of his normal working life as on 25 September. relied on as the basis of the of the Deutsche Babcock group,

60 Law Society Gazette Jan/Feb 2003 Briefing had put in a tender in association argued that only the German this would be the place having the ing state. In these circumstances, with a Finnish undertaking. When courts had jurisdiction to hear the closest connection between the article 5(1) would appear to be all the tenders had been case. The Court of Appeal referred dispute and the court having juris- inapplicable. An obligation not to assessed, it was decided to split a number of questions to the ECJ. diction. Application of the ECJ’s do something was applicable with- the contract and to entrust differ- It asked whether the exclusivity cases, which looked to the law gov- out any geographical limit and had ent lots to different undertakings. undertaking was to be honoured in erning the obligation in question, to to be honoured throughout the One lot was awarded to the group, Belgium as the negotiations took identify the place of performance world and was not capable of being which included Plafog, while the place in Germany with a Finnish did not enable that result to be identified with a specific place or WAGAG/Besix group did not win undertaking. The exclusivity obliga- achieved. In a case like this, there linked to a court which was partic- any part of the contract. Besix tion was applicable in any place was a risk that a claimant would be ularly suited to hear and determine took the view that the exclusivity whatever in the world, and the able to choose the place of per- the dispute relating to that obliga- and non-competition clauses in place where it was breached did formance which he considered to tion. Thus, jurisdiction fell to be the agreement had been breached not matter. Thus, there were a be most favourable to his inter- determined by article 2, which pro- and brought an action in damages large number of possible places of ests. Thus, that interpretation did vided a certain and reliable criteri- against WABAG and Plafog in the performance and the court asked not make it possible to identify the on. That was more in keeping with Belgian courts. The Belgian court whether a defendant could be sued court most qualified territorially to the scheme of the convention and held that it had jurisdiction under in one of them. The ECJ held that determine the case. It was also the rationale of article 5(1). Article article 5(1) of the Brussels con- the relevant obligation for the pur- likely to reduce the predictability of 5(1) is a derogation from the gen- vention. Looking to Belgian rules poses of article 5(1) was the exclu- the competent court so that it was eral jurisdictional rule in article 2 of private international law, the sivity undertaking. The parties did incompatible with the principle of that a defendant should be sued in applicable law was that of the not designate the place of per- legal certainty. It was not possible the court of the state in which he state with which the contract had formance of this obligation or any to give an autonomous definition of is domiciled. the closest connection. The obliga- applicable law or any jurisdiction in the place of performance in a situ- Derogations must not give rise tion in question was the exclusivity which disputes were to be heard. ation such as this without calling to an interpretation going beyond undertaking that should have been The ECJ said that it was essential into question earlier decisions of the cases expressly envisaged by performed in Belgium as a corol- to avoid a situation where a num- the ECJ. The place of performance the convention. Otherwise, the lary to the preparation of the joint ber of courts had jurisdiction in of the obligation in question could general principle laid down in arti- tender. At first instance, the action relation to the one contract to not be identified on the basis of cle 2 would be undermined and a was dismissed as unfounded on avoid the risk of irreconcilable judg- factual considerations – the specif- claimant might be able to affect the merits of the case. Besix ments. A single place of perform- ic circumstances demonstrating a the choice of a court unforesee- appealed the case to the Belgian ance for the obligation in question particularly close connection able for a defendant domiciled in Appeals Court. WBAG and Plafog had to be identified. In principle, between the case and a contract- a contracting state. G

SEMINAR ON INTERNATIONAL CHILD ABDUCTION Parental Responsibility and Access (Brussels II) European Parliament Offices, Molesworth Street, Dublin 2 Friday 7 March 2003

The Conference will be opened by Mr Michael McDowell TD, Minister for Justice, Equality and LawReform. Speakers will include: •William Duncan, Secretary General of the Hague Convention • Geoffrey Shannon, solicitor, Irish expert, Commission on European Family Law •A representative of Reunite, UK • Mary Banotti MEP • Garda Síochána • Chris O'Sullivan This seminar will be of interest to all family law practitioners – to those in general practice as well as family law practitioners

Registration fee €100 which includes lunch, tea and coffee Registration 9.15am Conference 9.45am. – 4.00pm Reservation essential

Contact: Mary Banotti MEP Tel: 6625100 - Fax: 6625132 e-mail [email protected]

61 Law Society Gazette Jan/Feb 2003 People and places

School’s out Law Society president Geraldine Clarke and director general Ken Murphy with graduates at the parchment ceremony in December

CIA dinner Law Society president Geraldine Clarke pictured with James Bridgeman, chairman of the Irish branch of the Chartered Institute of Arbitrators, at the annual Sligo smiles dinner of the Irish branch in the Pictured at the November meeting of the Sligo Bar Association were (seated, left to right): Niamh McDermott; Royal St George Yacht Club, Law Society president Geraldine Clarke; director general Ken Murphy; Michelle O’Boyle, president of Sligo and Dun Laoghaire County Solicitors’ Association; and Fiona McGuire, together with members of the bar association

Handful of treasure Judith Lawless, a partner in McCann FitzGerald’s banking and financial services department, Roscommon calling pictured at her recent Roscommon Bar Association AGM, November 2002 appointment as president of the (Front, left to right) Paul Wynne, Law Society director general Ken Murphy and and president Geraldine Clarke, Irish Association of Corporate president of the bar association Terence O’Keefe, secretary Brian O’Connor and Harry Wynne Treasurers with outgoing (Second row, left to right) Declan O’Callaghan, Michael O’Dowd, Rebecca Finnerty, Mary Daly, Brid Millar, president Derek Browne of Dermot M McDermott, Marie Conry and John V Kelly Arnotts. Lawless is the first (Back row, left to right) John Duggan, Padraig Kelly, Con Harlow, Sean Mahon, Johathan Wynne, Niamh Mahon, lawyer in private practice to hold John Sweeney and Kieran Madigan this position

62 Law Society Gazette Jan/Feb 2003 People and places

Justice Media Awards ceremony ictured with Law Society director magazine category; Vincent Power of Cullen, who took the award in the books Pgeneral Ken Murphy and the Evening Echo in Cork, winner of the category, for With a little help from my immediate past president Elma Lynch daily newspapers category; and Paul friends. at the Justice Media Awards ceremony in Blackhall Place in December 2002: Margaret Rossiter, columist with the Nationalist newspaper in Clonmel, who won the overall award and also the non- daily newspaper category; Angela Daly and Sinéad McCarthy from RTÉ’s Prime Time, winners of the television category; Barry O’Halloran of Business and Finance magazine, winner of the Vincent Power Angela Daly and Sinéad McCarthy

Margaret Rossiter Barry O’Halloran Paul Cullen

Cats that got the cream Looking back on the track President Geraldine Clarke and director general Ken Murphy recently visited the Kilkenny Pictured at the launch of the Law Reform Solicitors’ Association. Pictured are (back row, left to right) Kieran Boland, Seamas Commission’s latest consultation paper on the Brennan, David Dunne, Eugene O’Sullivan and John Lanigan; (front row, left to right) judicial review procedure are (left to right): Caroline Roche, honourary secretary Karl Johnston, Geraldine Clarke, association commissioner Patricia Rickard-Clarke; attorney president Martin Crotty, Ken Murphy, Mary Molloy and Sarah Breslin general Rory Brady; and Dr Hilary Delaney

FOR BOOKINGS CONTACT MARY BISSETT OR PADDY CAULFIELD TEL: 668 1806 Meet at the Four Courts

LAW SOCIETY ROOMS Courtat the Four Courts

63 Law Society Gazette Jan/Feb 2003 People and places

Mars a-Tax Students pictured at the Diploma in property tax conferring ceremony in October. Also in the photo are: (front row, left to right) Alan Moore of Tax World, sponsors of the DPT prize; director general Ken Murphy; Geraldine Kearney, highest mark and winner of the DPT prize; John O’Connor, chairman of the society’s Taxation Committee; Council member Philip Joyce; Sylvia McNeece, the society’s legal development manager (back row, second from left); and Geoffrey Shannon, deputy director of education (back row, far right)

A good night for a fright Mayo Solicitors’ Bar Association held its annual dinner dance on Friday 13 December. Pictured at the event were Wonder Woman (seated, left to right): Joe Donnelly, president of the Law Society of Pictured with Law Society president Geraldine Clarke and director Northern Ireland; Jackie Durcan, president of Mayo Solicitors’ Bar general Ken Murphy is Lisa Smyth, who was awarded the Overend Association; Law Society president Geraldine Clarke; James McCourt, scholarship for 2001 (best overall performance in both sittings of president of the Dublin Solicitors’ Bar Association; (standing) Peter the final exam – first part) Campbell, chairman of the Belfast Solicitors’ Association; Jarlath McInerney, Galway Solicitors’ Bar Association; Jackie Prendergast, Galway; Mr Justice Michael Peart; and Bernard Brennan, retired District Court judge

Stealing the show Pictured at the recent continuing legal education seminar on The Oh my darling Clementina Criminal Justice (Theft and Fraud Offences) Act, 2001 were (left to right): One of the best loved and most familiar faces around Blackhall Place, Paul Anthony McDermott BL; Barry Donoghue, deputy director of public Tina Flanagan, at a special reception to mark her retirement. prosecutions; Barbara Joyce, Law Society; Mr Justice Paul Carney; and Pictured are (left to right): Cillian MacDomhnaill, Áine Ryan, Robert Eagar, Garrett Sheehan & Company Tina Flanagan, Ken Murphy and Liam Delaney

64 Law Society Gazette Jan/Feb 2003 People and places

Book of the damned Marking the publication of Abuse of process: unjust and improper conduct of civil litigation (FirstLaw, 2002) at the offices of McCann FitzGerald in November were (left to right): Ronan Molony, chairman French property of McCann Fitzgerald; the author Desmond Shiels; and Pictured at a recent seminar on buying property in France, organised by Dublin solicitors Chief Justice Ronan Keane, who wrote the LK Shields, were (from left to right): Susan Hardie, Head of French Property, Triplet & foreword to the book. Associés, Philip Jenkinson, Partner, Triplet & Associés, and Emmet Scully and Nicola The book is the first to be written in Ireland or the Palmer, partners at LK Shields UK on this rapidly developing area of law

What do you propose? At a recent meeting of the Tipperary Bar Association in Thurles were (seated, from left) outgoing president Brendan Hyland, Law Society president Geraldine Clarke, director general Ken Murphy, and incoming president Peter Reilly

65 Law Society Gazette Jan/Feb 2003 Appointments

COURT AND COURT OFFICERS ACT 1995 – 2002 JUDICIAL APPOINTMENTS ADVISORY BOARD

APPOINTMENT OF ORDINARY JUDGES OF THE: SUPREME COURT HIGH COURT CIRCUIT COURT DISTRICT COURT otice is hereby given that applications are invited from Npractising barristers and solicitors who are eligible for appointment to the Office of Ordinary Judge of the Supreme Court, the High Court, the Circuit Court and the District Court. Those eligible for appointment and who wish to be consid- ered for appointment should apply in writing to the Secretary, Judicial Appointments Advisory Board, Phoenix House, 15/24 Phoenix Street North, Smithfield, Dublin 7, for a copy of the relevant application form. It should be noted that this advertisement for appointment to Judicial Office applies to vacancies that may arise in the Office of Ordinary Judge of the Supreme Court, the High Court, the Circuit Court and the District Court during the period to the 31st December 2003. Applications received will be considered by the Board during this period unless and until the applicant signifies in writing to the Board that the applica- tion should be withdrawn. Applicants may, at the discretion of the Board, be required to attend for interview. Canvassing is prohibited.

BRENDAN RYAN B.L., SECRETARY JUDICIAL APPOINTMENTS ADVISORY BOARD

66 Law Society Gazette Jan/Feb 2003 Professional information

LOST LAND being part of the townland of CERTIFICATES Glashaboy East and barony of LawSociety Barrymore; Co Cork Gazette Registration of Title Act, 1964 Regd owners: Alex Bailey and Jean An application has been received from Bailey; folio: 53743F; lands: a plot the registered owners mentioned in of ground being part of the town- ADVERTISING RATES the schedule hereto for the issue of a land of Ballard and barony of Bear; Advertising rates in the Professional information section are as follows: land certificate as stated to have been Co Cork lost or inadvertently destroyed. A new Regd owner: Joseph O’Driscoll; folio: • Lost land certificates – €46.50 (incl VAT at 21%) certificate will be issued unless notifi- 27331; lands: a plot of ground • Wills – €77.50 (incl VAT at 21%) cation is received in the registry with- being part of the townland of • Lost title deeds – €77.50 (incl VAT at 21%) in 28 days from the date of publication Eyeries and barony of Bear; Co • Employment miscellaneous – €46.50 (incl VAT at 21%) of this notice that the original certifi- Cork cate is in existence and in the custody Regd owner: Joseph O’Driscoll; folio: HIGHLIGHT YOUR ADVERTISEMENT BY PUTTING A BOX AROUND IT – €30 EXTRA 28118; lands: a plot of ground of some person other than the regis- All advertisements must be paid for prior to publication. Deadline for March being part of the townland of tered owner. Any such notification Gazette: 21 February 2003. For further information, contact Catherine Eyeries and barony of Bear in the should state the grounds on which the Kearney or Valerie Farrell on tel: 01 672 4828 (fax: 01 672 4877) certificate is being held. county of Cork; Co Cork (Register of Titles), Central Office, Land Regd owner: James Cunningham, Registry, Chancery Street, Dublin Springfield, Muff; folio: 8674; (Published 7 February 2003) lands: Drumskellan, Muff, Co Regd owners: Thomas and Ayda Regd owner: William Scarry; folio: Donegal; area: 47a, 1r, 35p; Co Lundon; folio: DN 70805F; lands: 33433; lands: Killeely More and Regd owners: David Denieffe and Donegal property situate in the townland of Kilcolgan and barony of Dunkellin; Denise Noonan; folio: 19062F; Regd owner: Margaret Simpson, Murphystown and barony of area: 11.2135 hectares; Co Galway lands: 7 The Cove, Poachers Gate Tulnaree, Carndonagh, Co Rathdown; Co Dublin Regd owner: Michael Conneff; folio: and barony of Carlow; Co Carlow Donegal; folio: 6645F; lands: Regd owners: James and Catherine 4879F; lands: townlands of Regd owner: Patrick I Delaney Churchland Quarters; area: 0.781 Ritchie; folio: DN62590L; lands: Kilmurry and Betaghstown and (deceased) and Kathleen Delaney; acres; Co Donegal property situate in the townland of barony of Clane; Co Kildare folio: 83F; lands: Carlow, barony of Regd owners: Columbia Diver and Oldbawn and barony of Regd owner: Green Isle Foods Carlow; Co Carlow Patrick Gildea, Drimaha, Ardara, Uppercross; Co Dublin (Portumna) Ltd; folio: 20579F; Regd owner: Maura McDermott, Co Donegal; folio: 17559; lands: Regd owners: Joseph and Jennifer lands: townland of Monread North Killadrean, Loughduff, Co Cavan; Sandfield, Sandfield and Murphy; folio: DN9544F; lands: and barony of Naas North; Co folio: 20307; lands: Mullaghoran; Magheramore; area: 11.5312 acres, property situate in the townland of Kildare area: 12.5 acres; Co Cavan 53.6875 acres and 5.5625 acres; Co Priorswood and barony of Regd owner: James Kelly; folio: 780; Regd owners: Patrick and Mary Donegal Coolock; Co Dublin lands: townland of Sheriffhill and Te resa Haugh; folio: 24939; lands: Regd owner: William C Mallace, Bin, Regd owner: Brendan Kelly; folio: barony of Kilkea and Moone; Co townland of Kilcloher and Rathmullin, Co Donegal; folio: DN19126L; lands: a plot of ground Kildare Carrowmore South and barony of 6120F; lands: Bin; area: 0.325 acres; known as 185 Alderwood Grove Regd owner: Christopher King; folio: Moyarta and Ibrickan; area: 2 acres, Co Donegal situate in the townland of Tallaght 910; lands: townland of Ballyadams 4 roods; Co Clare Regd owner: Huntstown Community and barony of Uppercross; Co and barony of Narragh and Reban Regd owner: Felix Barrett; folio: Centre Limited; folio: DN91467F; Dublin East; Co Kildare 22612; lands: a plot of ground lands: property situate in the town- Regd owner: Michael Hoey; folio: Regd owners: Daniel and Eileen being part of the townland of land of Huntstown and barony of DN5429; lands: property situate in Power; folio: 1182L; lands: town- Ballygirriha situate in the barony of Castleknock; Co Dublin the townland of Burrow and barony land of Leixlip and barony of North Muskerry East; Co Cork Regd owner: Alan Bradley; folio: of Uppercross; Co Dublin Salt; Co Kildare Regd owners: John Barton and 86114F; lands: property situated in Regd owner: Maureen Levey; folio: Regd owner: Noel Furlong; folio: Hannah Barton; folio: 5004; lands: the townland of Carrickmines DN51485L; lands: property situate 16330F; lands: townland of Ballysax a plot of ground being part of the Little in the barony of Rathdown; in the townland of Haroldsgrange Great and barony of Offaly East; Co lands of Croom (Midleton) and Co Dublin and barony of Rathdown; Co Kildare barony of Barrymore; Co Cork Regd owners: Mark Crosbie and Dublin Regd owner: Desmond Gee; folios: Regd owner: William Michael Carter; Margaret Furlong; folio: Regd owner: Monica Phelan; folio: 10789 and 10822; lands: folio: 11821F; lands: a plot of DN68774F; lands: property known DN3399; lands: property no 1 situ- Ballymaddock and barony of ground being part of the townland as 39 Belton Park Gardens and sit- ate in the townland of Bettyville Cullenagh; Co Laois of Ballycureen and barony of Cork; uate on the north side of the said and barony of Balrothery East and Regd owner: Anthony Mulhall; folio: Co Cork gardens in the parish of Artaine and property no 2 situate in the town- 3879F; lands: Crubeen and barony Regd owner: Industrial Development district of Clonturk; Co Dublin land of Parnelstown and barony of of Cullenagh; Co Laois Authority; folio: 24825F; lands: A Regd owner: Michael Devoy; folio: Balrothery East; Co Dublin Regd owner: Mary Ahern; folio: 27497; plot of ground being part of the DN17674F; lands: property known Regd owner: Coldchon Limited; lands: townland of Carheeny and townland of Foxhole situate in the as 2 Drumfinn Park situate in the folio: 50909; lands: townland of barony of Kenry; Co Limerick barony of Imokily; Co Cork parish of Palmerstown and district Carrowmoneash; area: 2a, 2r, 14- Regd owners: Thomas and Maureen Regd owner: Kathleen Lenihan; folio: of Ballyfermot; Co Dublin 1/2p; Co Galway Frawley; folio: 17009; lands: town- 57882; lands: a plot of ground Regd owner: Karen Doogan; folio: Regd owners: Tony Giblin and Joanne land of Newcastle and barony of being part of the townland of DN69840L; lands: property known Butler, c/o Giblins Hotel, Eyre Clanwilliam; Co Limerick Dromrahan and barony of Fermoy; as 86 Saint Attracta Road situate in Square, Galway; folio: 27433F; Regd owners: Mary Elizabeth (Ann) Co Cork the parish of Grangegorman and lands: townland of Ballynacloghy Sharpe and Richard Anthony Walsh; Regd owner: Daniel J O’Donovan; district of North Central; Co and barony of Dunkellin; area: folio: Mayo 10011F; lands: town- folio: 512; lands: a plot of ground Dublin 0.3702 hectares; Co Galway land of Rathmeel and barony of being part of the townland of Regd owners: Thomas and Ellen Regd owner: Kathleen Livingstone; Tireragh; area: 0.488 acres; Co Knockskagh and barony of Carbery O’Connor; folio: DN56715L; folio: GY55685; lands: townland of Mayo East; Co Cork lands: property situate in the town- Cloonnacartan and barony of Regd owners: Paul and Susan Regd owner: Joan Sheehan; folio: land of Oldbawn and barony of Ballynahinch; area: 0.5336 Donoghue; folio: 16904F; lands: 16254F; lands: a plot of ground Uppercross; Co Dublin hectares; Co Galway Castlefarm; Co Meath

67 Law Society Gazette Jan/Feb 2003 Professional information

Regd owner: Irish Shell Ltd, Irish lands: townland of Kilgorteen and Carricknaghten, Athlone, Co 2002, please contact Peter G Crean & Shell House, 13-16 Fleet Street, barony of Upper Ormond; Co Westmeath; Patrick Logan ors Co, Solicitors, Estate House, Castle Dublin; folios: 17011,14529; lands: Tipperary Patrick J Logan, Golden Island, Hill, Enniscorthy, Co Wexford, tel: Rossan; area: 0.4125, 0.3375; Co Regd owner: O’Dwyer and Sons; Athlone, Co Westmeath; folio: 054 34500, fax: 054 34257, e-mail: Meath folio: 8539F; lands: townland of 19947; lands: Golden Island, [email protected] Regd owner: Dominic B Caine, Fawnagowan and barony of Creggan Lower; area: 7.575 acres, Wilkinstown House, Navan, Co Clanwilliam; Co Tipperary. 7.50 acres and 5.368 acres; Co Healy, Jeremiah Gerard (Gerry) Meath; folio: 17887F; lands: Regd owner: John G (orse Sean) Westmeath (deceased), late of 147 Roselawn Wilkinstown; area: 5.130 acres; Co Barron; folio: 1750; lands: town- Regd owner: Mary Potterton, Road, Castleknock, Dublin 15. Would Meath land of Ballynamona and barony of Craddenstown House, Raharney, any person having any knowledge of a Regd owner: Pierce Nevin, Decies-within-Drum; Co Co Westmeath; folio: 1479; land: will made by the above named Kellystown, Slane, Co Meath; folio: Waterford Craddanstown; area: 4.2589 deceased who died on 8 November 1942; lands: Kellystown, Regd owner: James Hurley; folio: hectares; Co Westmeath 2002 at James Connolly Memorial Monknewtown; area: 69.962 acres, 11922; lands: a plot of ground Regd owner: Nuala Barron; folio: Hospital, please contact Frank Ward 1 acre; Co Meath being part of the townland of 9979F; lands: Enniscorthy and & Co, Solicitors, Equity House, Regd owner: Patrick Coyle, Naghill, Toortane and barony of Cashmore barony of Scarawalsh; Co Wexford Upper Ormond Quay, Dublin 7, tel: Co Monaghan; folio: 13816; lands: and Cashbride; Co Waterford Regd owner: Liam McCoy; folio: 01 8732199 or 01 8733484 Naghill; area: 15.281 acres; Co Regd owner: Edmond Crotty; folio: 3373F; lands: townland of Monaghan 855; lands: a plot of ground being Ballybrew and barony of Mannion, Frank (otherwise Regd owner: Isobel Catherine Dixon, part of the townland of Rathdown; Co Wicklow Laurence or Larry) (deceased), late c/o Barry Hickey & Henderson, Ballyscanlan and barony of of 54 Idrone Park, Templeogue, Solicitors, The Diamond, Clones, Middlethird; Co Waterford Dublin 6, who died 28 February 2000. Co Monaghan; folio: 2518; lands: Regd owner: William Cleary, 1 WILLS Would any person having knowledge Carn; Co Monaghan Blackhall Street, Mullingar, Co as to the whereabouts of a will of the Regd owner: Brian Oliver Plunkett Westmeath; folio: 19730; lands: Baker, Joseph Edward (deceased), above named deceased, please contact Carroll, Cavancreevy, Castleshane, Mullingar; area: 0.1375 acres; Co late of 20 Bracken Gardens, North Brendan Irwin & Co, Solicitors, 6 Co Monaghan; folio: 9730; lands: Westmeath Circular Road, Limerick. Would any Garden Vale, Athlone, Co Cavancreevy; area: 13.275 acres; Regd owner: Mary Bridget Leech, person having knowledge of a will Westmeath, tel: 0902 74243, fax: 0902 Co Monaghan Milltownfass, Mullingar, Co made by the above named deceased, 72516 or e-mail: brendanirwin@eir- Regd owner: James Kielty (deceased) Westmeath; folio: 5087; lands: please contact Ms Rachel Stokes of com.net, reference: G/153 and Margaret Kielty; folio: 20290; Griffinstown; area: 131.737 acres; Connolly Sellors Geraghty Fitt, lands: townland of Ballymote and Co Westmeath Solicitors, 6-7 Glentworth Street, O’Beirne, Derek (deceased), late of barony of Corran; area: 0.2530 Regd owners: Patrick J Logan, Limerick, tel: 061 414355, fax: 061 179 Lower Rathmines Road, Dublin hectares; Co Sligo Carricknaghten, Athlone, Co 414738, e-mail: [email protected] 6, who died 1 August 2002. Would any Regd owner: Joan Cleary; folio: 141; Roscommon; Patrick Logan, mail.ie person having knowledge of a will made by the above named deceased, Byrne, Christopher (deceased), late please contact Cullen & Cullen, DOCMAN (IRELAND) LIMITED of 158 Quarry Road, Cabra, Dublin 7, Solicitors, 86/88 Tyrconnell Road, who died on 21 June 2001. Would any Inchicore, Dublin 8, tel: 01 4536114, ARE PLEASED TO HAVE SUPPLIED person having knowledge of the fax: 01 4535498, e-mail: cullmar@ whereabouts of a will made by the securemail.ie above named deceased, please contact Christopher Byrne, 83 Claremont O’Brien, Patrick, late of Sandyhills, Crescent, Glasnevin, Dublin 9, tel: 01 Dunlavin, Co Wicklow, who died on 8301979, mobile: 087 6615536 19 September 1999, O’ Brien, John, THE ULTIMATE DICTATION SOLUTION late of Sandyhills, Dunlavin, Co TO Carolan, James (deceased), late of Wicklow, who died on 5 November MESSRS RONAN DALY JERMYN Balrath, Navan, County Meath, who 1999, O’Brien, James, late of OF SOUTH MALL CORK died on 10 June 2002 at Rathfeigh Sandyhills, Dunlavin, Co Wicklow, Nursing Home, Co Meath. Would who died on 4 December 2002. ■ GREATER EFFICIENCY – MORE PRODUCTIVITY any person having any knowledge of a Would any person having knowledge ■ REMOTE WORKING BY BOTH AUTHOR AND will made by the above named of wills made by the above named SECRETARY deceased, please contact Oliver deceased, please contact Reidy ■ EASE OF USE, FLEXIBILITY Shanley & Company, Solicitors, 11 Stafford, Solicitors, Newbridge, Co Bridge Street, Navan, Co Meath, tel: Kildare, tel: 045 432188, fax: 045 ■ WORKFLOW CONTROL AND MANAGEMENT 046 9023333 or fax: 046 9029937 433019 REPORTING ■ ARE JUST SOME OF THE REASONS WHY Cotter, John, (deceased), late of Phelan, Richard (deceased), late of 60 WINSCRIBE WAS CHOSEN Laurelville, Ballinlough Road, Cork, Dunluce Road, Clontarf, Dublin 3, who died on 23 October 2002. Would who died on 22 January 2002, aged 79 JOHN BUCKLEY (PARTNER) SAYS: "In the first month any person having any knowledge of a years, a retired labourer. Would any of implementing the digital dictation technology will made by the above named person having knowledge of a will solution, productivity was significantly increased" deceased, please contact Harry made by the above named deceased, McCullagh & Co, Solicitors, The Mill contact O’Leary Maher, Solicitors, A SECRETARY SAYS: "It’s revolutionised House, St Patrick’s Terrace, Douglas, 183 Howth Road, Killester, Dublin 3, the way we work" Cork tel: 01 8331900, fax: 01 8334991

DOCMAN (IRELAND) LTD, MULLINGAR, COUNTY WESTMEATH Dunne, John (deceased), late of Redmond, Mary (Mollie) (deceased), TELEPHONE 044 72496 087 8110924 OR Ballypreacus, Bunclody, Co Wexford. late of 2 Castle Park, Wicklow, who E-MAIL US AT [email protected] Would any person having knowledge died on 17 August 2000. Would any FOR A FREE, NO OBLIGATION DEMONSTRATION of a will made by the above named person having knowledge of the deceased who died on 21 October whereabouts of a will of the above

68 Law Society Gazette Jan/Feb 2003 Professional information named person, please contact Declan M MISCELLANEOUS Whittle, Haughton McCarroll, Solici- tors, 2 Christchurch Street, Wicklow, tel: 0404 68344; fax: 0404 68131, Retiring or selling a legal prac- e-mail: [email protected] tice? Solicitor seeking to buy established practice in Dublin Roche, Nora (deceased), late of 24 area. One to two year transition King Street, Mitchelstown, Co Cork. preferred. Enquiries to Charles Would any person having knowledge of M Carri FCA, John P Greely & a will made by the above named Company, Mill House, Mill- deceased who died on 19 October 2002 brook, Naas, Co Kildare. E-mail at the General Hospital, Mallow, Co [email protected] or tel: Cork, please contact Anna Hogan of 045 879822, fax: 045 879773 Murphy English & Co, Solicitors, Sunville, Cork Road, Carrigaline, Co Near Four Courts. The alternative Cork, tel: 021 4372425, fax: 021 to hotels. Newly-decorated, quiet two 4373978 bedroom flat offered for short-term lets (one night +) at competitive rates. Bracken, Solicitors, The Woods, Locum solicitor: two to three years’ Professionally managed. Contact 087 EMPLOYMENT Clane, Co Kildare, tel: 045 868045 minimum PQE. Conveyancing and 9318111 or 087 9089940. some probate. Required early March Assistant solicitor required for busy Locum solicitor with experience in all for three to six months. Send CV in Northern Ireland solicitors provid- Dublin 15 conveyancing practice, one aspects of conveyancing required. confidence to FP Gleeson & Co, ing an efficient and comprehensive to three years’ experience necessary. Full/part-time option. Reply to Liberty Square, Thurles, ref: WFG or legal service in all contentious/non- Contact: 01 8201701 O’Callaghan, Solicitors, reference: e-mail Billy.Gleeson@tipperary- contentious matters. Dublin-based PJC, 51 Mulgrave Street, Dun law.com consultations and elsewhere. Fee Assistant solicitor required with or Laoghaire, DX 6018 Dun Laoghaire apportionment. ML White, Solici- without experience for a busy Galway or e-mail: [email protected] Solicitor, six years’ PQE, seeks tors, 43-45 Monaghan Street, Newry, city practice. Please apply with CV to full/part-time position in Galway County Down, tel: 080 1693 68144, box no 10 Locum solicitor available with wide city/county practice. Experience in fax: 080 1693 60966 experience of general practice, partic- conveyancing, probate, litigation and Assistant solicitor required for busy ularly conveyancing, probate, and liti- family law. Box no 15 Northern Ireland agents for all con- general practice. Some experience gation. Reply to box no 12 tentious and non-contentious matters. preferable. Please apply to Patrick Solicitor wanted for busy practice in Consultation in Dublin if required. Noonan & Co, Solicitors, Upper McMahon O’Brien Downes, North Tipperary. Conveyancing Fee sharing envisaged. Offices in Bridge Street, Athboy, Co Meath, tel: Solicitors, Limerick and Dublin experience preferential. All applica- Belfast, Newry and Carrickfergus. 046 32107 require an experienced litigation solic- tions to box no 16 Contact Norville Connolly, D&E itor. Excellent terms and conditions. Assistant solicitor – our client, a busy Please send applications to the per- practice in the North West which is sonnel manager, McMahon O’Brien expanding and modernising, requires Downes, Solicitors, Mount Kennett an assistant solicitor to concentrate on House, Henry Street, Limerick NORTHERN DUBLIN SOLICITORS’ conveyancing, civil litigation and pro- bate. The successful applicant will have Solicitor required for busy general IRELAND PRACTICE OFFERS good IT skills and inter-personal skills practice in Mullingar, Co Westmeath. SOLICITORS AGENCY WORK and will join a young team. A salary PQE needed in conveyancing, pro- IN NORTHERN commensurate with ability will be bate, litigation and family law. IRELAND offered, together with a profit-sharing Applications with CV to JA Shaw & We will engage in, scheme. Please reply in writing to ref: Co, Solicitors, Mullingar, Co and advise on, AP-LP, Gilroy Gannon, Chartered Westmeath or e-mail: [email protected] all Northern Ireland- * All legal work undertaken on an agency basis Accountants, Stephen St, Sligo related matters, * All communications to clients Solicitor with extensive experience in particularly personal injury litigation. through instructing solicitors Experienced male solicitor (con- general practice with emphasis on * Consultations in Dublin if required veyancing, probate, civil litigation) conveyancing, probate and litigation Consultations where seeks association with firm in North seeks position. Tipperary/Limerick/ convenient. Contact: Séamus Connolly Wicklow/Rathdown/Dun Laoghaire. Kilkenny areas preferred. Box no 13 Fee sharing Moran & Ryan, Solicitors, Unusual titles a speciality. Reply to box envisaged. Arran House, no 11 Assistant solicitor required for busy 35/36 Arran Quay, Dublin 7. expanding practice in Ennis, Co Experienced solicitor required for Clare. Experience in litigation, con- OLIVER M LOUGHRAN Tel: (01) 872 5622 conveyancing and civil litigation work veyancing and probate required. Fax: (01) 872 5404 with young rapidly-expanding and Salary commensurate with experi- & COMPANY dynamic practice. Excellent salary and ence. Reply with CV to Kerin e-mail: [email protected] prospects for right candidate. Apply in Hickman & O’Donnell, Solicitors, 2 9 HOLMVIEW TERRACE, or Bank Building, Hill Street writing to principal, Catherine Allison Bindon Street, Ennis, Co Clare, tel: OMAGH, CO TYRONE Newry, County Down. & Co, Solicitors, Roden House, Roden 065 6828712/6828466 Place, Dundalk, Co Louth, tel: 042 Phone (004428) 8224 1530 Tel: (0801693) 65311 320854 Solicitor – one to three years’ PQE. Fax: (004428) 8224 9865 Fax: (0801693) 62096 General role with focus on conveyanc- e-mail: E-mail: [email protected] Locum solicitor required, March ing and probate. Medium-sized firm in [email protected] 2003 to June 2003, with experience of North Munster. Good computer skills general practice. Contact Boyle & an advantage. Send CV to box no 14

69 Law Society Gazette Jan/Feb 2003 LAW AGENCY SERVICES Irish ENGLAND & W ALES Stenographers SOLICITORS Ltd Established 1825

Director: Sheila Kavanagh •Fearon & C o specialise in acting for Irish residents in Experts in the fields of probate, property and litigation Overnight Transcripts • Each solicitor is available by direct line, fax or e-mail. Conferences can be easily arranged Specialists in •Fearon & C o is committed to the use of information Court Reporting technology to help improve both the quality and speed of service for the benefits of all clients both at Medical Cases / Arbitrations home and abroad Conferences / Board Meetings • The firm’s offices are within half an hour of London W aterloo station and within a short travel from both Contact: Gatwick and Heathrow airports, with easy access from Hillcrest House, the London orbital M25 motorway • No win, no fee arrangements are available in Dargle Valley, Bray, Co. Wicklow. appropriate cases Telephone/Fax: (01) 286 2184 PHONE NOW FOR A BROCHURE W estminster House or 12 The Broadway, Woking, Surrey GU21 5AU England 4b Arran Square, Dublin 7 Fax: +44 (0)1483 725807 Email: [email protected] www.fearonlaw.com LITIGATION PROPERTY PROBATE Telephone: (01) 873 2378 Martin Williams John Phillips Francesca Nash Tel: +44 (0)1483 776539 Tel: +44 (0)1483 747250 Tel: +44 (0)1483 765634

F R O BE M E WHERE THERE’S A WILL M A

P

U THIS IS THE WAY…

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G E IC T C A PR IN L TERNATIONA When a client makes a will in favour of the Society, it would be appreciated if the bequest were stated in the following words: SPANISH LAWYERS “I give, devise and bequeath the sum of X euros to the Irish RAFAEL BERDAGUER Cancer Society Limited to be applied by it for any of its ABOGADOS charitable objects, as it, at its absolute discretion, may decide.”

PROFILE: FIELD OF PRACTICES: All monies received by the Society are expended within the panish Lawyers Firm focussed eneral Practice, Administra- Republic of Ireland. Son serving the need of the for- Gtive Law, Civil and Commercial eign investors, whether in compa- Law, Company Law, Banking and “Conquer Cancer Campaign” is a Registered Business Name ny or property transactions and all Foreign Investments in Spain, attendant legalities such as ques- Arbitration, Taxation, Family Law, and is used by the Society for tions of immigration-naturalisa- International Law, Immigration some fund-raising purposes. The tion, inheritance, taxation, and Naturalisation, Litigation in all “Cancer Research Advancement accounting and bookkeeping, Courts. Board” allocates all Research planning, land use and litigation in all Courts. Grants on behalf of the Society.

Avda. Ricardo Soriano, 29, Edificio Azahara Oficinas, 4 Planta, 29600 Marbella, Malaga, Spain 5 Northumberland Road, Dublin 4. Tel: (01) 231 0500 Tel: 00-34-952823085 Fax: 00-34-952824246 15 Bridge Street, Cork. Tel: (021) 4509 918 Web: www.cancer.ie e-mail: [email protected] Professional information

Fisher, Solicitors, 8 Trevor Hill, an interest in the freehold estate of Newry, tel: 080 1693 61616, fax: 080 the following properties: 148 Lower 1693 67712 Leeson Street, Dublin 2, formerly known as 111 Lower Leeson Street, www.liquidations.ie London solicitors will advise on UK Dublin 2 and previously known as 9 matters and undertake agency work. Lower Leeson Street, Dublin 2, held All areas. Corporate/private clients. under lease dated 14 December 1840 For information on insolvency, employees entitlements, Ellis & Fairbairn, 26 Old Brompton and made between Henry Read of the defending a section 150 application, informal schemes Road, South Kensington, London one part and Robert Chambers of the of arrangement, dealing with the sheriff, services to SW7 3DL, tel: 0044 171 589 0141, other part for a term of 200 years fax: 0044 171 225 3935 from 14 December 1840 with a year- solicitors and free Insolvency Helpline Service. ly rent of £20 sterling. Northern Ireland solicitors. Will Take notice that Joseph Davy, the advise and undertake NI-related mat- applicant, intends to submit an appli- ters. All areas corporate/private. cation to the county registrar for the said hereditaments and premises and county registrar for County Agency or full referral of cases as pre- county of the city of Dublin for is desirous of so doing. And whereas Tipperary to have the matter deter- ferred. Consultations in Dublin or acquisition of the freehold interest in the person or persons required by the mined by her arbitration and for an elsewhere if required. Fee sharing the aforesaid property and any parties acts to convey or join in conveying award: envisaged. Donnelly Neary & asserting that they hold a superior the fee simple in said premises are a) Determining that the applicant is Donnelly, 1 Downshire Road, Newry, interest in the aforesaid premises are unknown and unascertained. entitled to acquire the fee simple Co Down, tel: 080 1693 64611, fax: called upon to furnish evidence of Take notice the we, as solicitors in the said hereditaments and 080 1693 67000. Contact KJ Neary title to the aforementioned premises for the applicant, hereby apply to the premises under the said acts to the below named within 21 days from the date of this notice. EYE INJURIES AND In default of any such notice being OPHTHALMOLOGICAL received by the below-named solici- NEGLIGENCE tors, the said Joseph Davy intends to proceed with application before the Mr Louis Clearkin ChM, FRCS, county registrar at the end of 21 days FRCOphth, DO, MAI, MEWI from the date of this notice and will Consultant Ophthalmic Surgeon apply to the county registrar for the county of the city of Dublin for Experienced expert witness in directions as may be appropriate on ophthalmological personal the basis that the person or persons injury, medical negligence and beneficially entitled to the superior civil litigation interest including the freehold rever- sion in the aforesaid property are Renuntiabo, 8 Rose Mount, unknown or unascertained. Oxton, Wirral, Merseyside, Date: 28 November 2002 L43 5SW Signed: Eugene Davy (solicitors for the applicant), 16-18 Harcourt Road, secretary: +44 (0) 151 6047047 Dublin 2 fax: +44 (0) 151 6047152 In the matter of the Landlord and e-mail: [email protected] Tenant (Ground Rents) Acts, 1967–1989: Patrick and Carmel Flynn (applicant) and estate of Dr Patrick Morrissey (respondent) TITLE DEEDS Whereas the applicant has acquired and is now entitled to the lands com- Robert A Fanning (deceased), late of prised in the agreement to lease dated 20 Parnell Road, Dublin 12. Would 1 January 1898 between Maria any person having knowledge of the Morrissey of the one part and John whereabouts of the title documents Downey of the other part as yearly of property held in the name of the tenants. The said yearly tenancy is a above-named deceased known as 20 tenancy to which part two of the Parnell Road (previously known as 6 Landlord and Tenant (Ground Rents) Parnell Place), Harold’s Cross, situ- (No 2) Act, 1978 apply. The lands ate in the parish of St Catherine, demised by the said agreements to barony of Upper Cross, formerly in lease are therein described as ‘all that the county and now in the county and those the dwellinghouse, shop borough of Dublin, please contact and premises situate at Main Street, Maurice E Veale & Co, Solicitors, 6 in the city of Cashel, parish of St Lower Baggot Street, Dublin 2, tel: John the Baptist, barony of 01 6764067 Middlethird and county of Tipperary’, being the property now In the matter of the Landlord and known as 75 Main Street, Cashel, Co Tenant Acts, 1967–1994 and in the Tipperary. matter of the Landlord and Tenant And whereas the applicants are (Ground Rents) (No 2) Act, 1978: an persons entitled under the Landlord application by Joseph Davy and Tenants Acts, 1967 to 1989 to Take notice that any person having acquire the fee simple interest in the

71 Law Society Gazette Jan/Feb 2003 Professional information b) Determining the purchase price to following premises: all that and those registrar at the end of six weeks from Rosemary Ryan & Co (solicitors for the be paid in respect of the acquisition the yard and premises situate near the date of this notice and will apply to applicant), 13/15 Rathfarnham Road, c) Appointing such person as she may Parade Quay in the parish of Trinity the county registrar for the county of Te renure, Dublin 6W think fit to execute a conveyance of within and city of Waterford and more Waterford for directions as may be the fee simple in the said premises particularly delineated and described appropriate on the basis that the per- In the matter of the Landlord and for and on behalf of the unknown on a map endorsed on an indenture of son or persons beneficially entitled to Tenant Acts, 1967–1994 and in the and unascertained respondent conveyance and assignment made 12 the superior interest including the free- matter of the Landlord and Tenant d) Ordering that the purchase price be October 1937 between Francis hold reversion in the aforesaid premis- (Ground Rents) (No 2) Act, 1978: an paid into the court before the exe- Graham of the one part and Austin es are unknown or unascertained. application by Peter Humphreys, cution of such conveyance Orlando Hill of the other part and Date: 8 January 2003 Reverend Henry Montgomery and e) As to the costs of this application therein coloured brown originally held Signed: Anne-Marie Donnelly (solicitor Mr J Stanley Harper and arbitration in yearly tenancy at a rent of £5 per entitled to act on behalf of the applicant), All that and those the property known f) Granting such further or other annum and therein described as ‘all Daly Derham & Co, Solicitors, 32 as Kilmainham Congregational relief as may be necessary in the cir- that and those the premises adjoining Washington Street, Cork Church, Inchicore Road, Dublin 8, cumstances of the case. the premises herein before described part of the property held under situate in the parish of Trinity within In the matter of the Landlord and indenture of lease made 21 May 1917 Take notice the application herein will and city of Waterford and more partic- Tenants Acts, 1967–1994 and of the between Richard Pelham Johnson of be made to the county registrar sitting ularly delineated and described in the Landlord and Tenant (Ground Rents) the one part and the Reverend Philip at the Courthouse, Clonmel, Co map thereof endorsed on these pres- (No 2) Act, 1978: an application by Davis, George Yates and John B Tipperary on 17 February 2003 or the ents and therein coloured brown’. John Cooney and Company Limited Mason of the other part for a term of first opportunity thereafter. Take notice that the applicant, An Take notice that John Cooney and 999 years from 25 March 1916 sub- Signed: John P Whelan & Co (solicitors Post, intends to submit an application Company Limited intends to submit as ject to a yearly rent of £15 sterling for the applicant), 68 Queen Street, to the county registrar for the county application to the county registrar for and the covenants and conditions Clonmel, Co Tipperary of Waterford for the acquisition of the the county and city of Dublin for the therein contained as more particular- freehold interest in the aforesaid prop- acquisition of the freehold interest in ly delineated edged red on the map In the matter of the Landlord and erties and any party asserting that they the following property: all that and attached thereto. Tenant Acts, 1967–1994 and in the hold a superior interest in the aforesaid those that plot or piece of ground at Take notice that Peter Humphreys, matter of the Landlord and Tenant premises (or any of them) are called the south east side of their premises at Reverend Henry Montgomery and Mr (Ground Rents) (No 2) Act, 1978 and upon to furnish evidence of title to the no 197 Harold’s Cross Road, such J Standley intend to submit an applica- in the matter of premises near aforementioned premises to the below ground being formerly part of the gar- tion to the county registrar for the city Parade Quay, Waterford (behind named within six weeks from the date den of no 10 Leinster Place, Rathmines of Dublin for the acquisition of the 109 Parade Quay): an application by of this notice. in the city of Dublin. freehold interest in the aforesaid prem- An Post In default of any such notice being And take notice that any person ises and any party asserting that they Take notice that any person having any received, An Post intends to proceed having any interest in the freehold hold superior interest in the aforesaid interest in the freehold estate of the with the application before the county estate of the aforesaid property and any premises are called upon to furnish evi- party asserting that they hold a superi- dence of title to the aforementioned or interest in the aforesaid property (or premises to the below named within 21 any of them) are called upon to furnish days from the date of this notice. evidence of title to the aforementioned In default of any such notice being premises to the below named within 21 received, Peter Humphreys, Reverend days from the date of this notice. Henry Montgomery and Mr J Stanley In default of any such notice being intend to proceed with the application received, John Cooney and Company before the county registrar at the end Limited intends to proceed with the of 21 days from the date of this notice application before the county registrar and will apply to the county registrar at the end of 21 days from the date of for the city of Dublin for directions as PATENTS & TRADE MARKS this notice and will apply to the county may be appropriate on the basis that registrar for the county and city of the person or persons beneficially enti- Dublin for directions as may be appro- tled to the superior interest including Established in 1930, Tomkins & Co. is a leading priate on the basis that the person or the freehold reversion in each of the persons beneficially entitled to the aforesaid premises are unknown or firm of Patent and Trade Mark Agents who superior interest including the freehold unascertained specialise in providing advice on Patents, Trade reversion in each of the aforesaid Date: 23 January 2003 premises are unknown or unascer- Margetson & Greene (solicitors for the Marks, Designs and associated IP rights. tained applicant), 35 Lower Baggot Street, Date: 7 February 2003 Dublin 2

For information on the services we provide, please visit our website or contact Niall Rooney MERCHANTS QUAY, DUBLIN at: Adjacent to Four Courts – to let • Fitted Offices from c.165 sq. m. Excellent Parking. 5 Dartmouth Road, Dublin 6. • Flexible Terms. Immediate Poss. Tel: 01 6605033 Fax: 01 6606920 E-mail: [email protected] Web: www.tomkins.com

72 Law Society Gazette Jan/Feb 2003